REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENc:;; DIVISION , PRETORIA
( 1) REPORT ABLE: NO
(2) OF INTEREST TO OT H~ O
(3) RE VISED: NO --
Date: 23 July 2025 Evan der Schyff
In the m atter between
JOHANNA MATHILDE T H ERESE ENGELBRECHT
and
AT TOOH CONSULTING SERV ICES
HO LDINGS (PTY) LTD
LOUIS VAN WYK
D ISCOVERY LIFE LIMITED
Van der Schyff J
JUDGM ENT
CASE NO.: 31915 /2021
Plaintiff/Respondent
First Defendant/Applicant
Second D efendant/Applicant
Third Defendant/Applicant
2
Introduction
[1] The applicants approached the court with an application in terms of Rule 41(1)(c). It
is appropriate already at this early stage to indicate that Rule 41 (1) provides for the
withdrawal of a matter and costs consequent thereto. Rule 41 (1 )(c) caters for the
situation where no consent to pay costs is embodied in the notice of withdraVJal. The
Rule provides that in these circumstances, the other party may apply to court on
notice for an order for costs.
[2] The applicants in this application are cited in the action instituted under case number
31915/21. The plaintiff in the action is the respondent in this application. The
application was heard in the unopposed motion court, and the parties are cited as in
the action.
Factual context
[3] The plaintiff issued a combined summons wherein all three applicants were cited as
defendants. The defendants initially raised an exception to the claim on the basis
that the plaintiff had not set out a cause of action. Notices of the respective
defendants' intention to amend the exception were subsequently filed.
[4] The plaintiff subsequently filed a notice of intention to amend the particulars of claim.
The plaintiff intended to amend the particulars of claim by replacing the entire
particulars. It is, among others, stated in the proposed amended particulars of claim
that no relief is sought against the second and third defendants, but that they are
cited only insofar as they might have an interest in the outcome of the proceedings.
The defendants filed a notice of objection to the plaintiffs notice of intention to
amend .
Discussion
[5] On the electronic case record, as it stands, there is no indication that either the
exception or the proposed amendment was brought to finality. Since an objection
.2
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was raised to the plaintiffs intention to amend the particulars of claim , the plaintiff
was obliged in terms of Ryle 28(4) to lodge an application for leave to amend. Since
no application was launched, it cannot be held that the plaintiffs particulars of claim
were indeed amended . The second and third defendants are thus not yet off the
hook. It cannot be said that the plaintiff withdrew the action against any of the
respondents.
[6] The defendants take issue with the fact that the plaintiff did not tender costs in the
notice of intention to amend the particulars of claim. In approaching the court for an
order that the plaintiff is ordered 'to pay the costs that were not tendered in her Notice
of Intention to Amend under case number 31915/21' the defendants lost sight of
Rule 28(9). Rule 28(9) provides as follows:
'A party giving notice of amendment in terms of subrule (1) shall, unless the
court otherwise directs, be liable for the costs thereby occasioned to the
other party'
[7] As far as costs occasioned by the filing of a notice of intentiqn to amend are
concerned, the issue is regulated by the Uniform Rules of Court. The applicants in
this application do not require a court order to render the respondent liable for the
costs occasioned by the notice of amendment in terms of Rule 28(1 ).
[8] As a result, the application stands to be dismissed. Since the application was not
opposed, there is no need to grant any costs order.
ORDER
In the result, the following order is granted:
1. The application is dismissed .
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....
E van der Schyff
Judge of the H igh Court
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Delivered: This judgment is handed down electronically by uploading it to the electronic file of
this matter on Caselines. In the event that there is a discrepancy between the date the judgment
is signed and the date it is uploaded to Caselines, the date the judgment is uploaded to
Caselines is deemed to be the date that the judgment is handed down .
For the applicants/defendants:
Instructed by:
For the respondent/plaintiff:
Date of the hearing:
Date of judgment:
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Adv. R. Kooverjie
Keith Sutcliffe & Associates Inc.
No appearance
22 July 2025
23 July 2025