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IN THE HIGH COURT OF SOUTH AFRICA
(NORTHERN CAPE DIVISION, KIMBERLEY)
YES / NO
YES / NO
YES / NO
YES / NO
Case Number: 1246/23
In the matter between:
MJILA AND PARTNERS INC
(Reg No: 2019/304921/21)
MRS. ANNA MJILA N.O.
(In her capacity as Executrix of Estate
of late Abel Vumile Mjila)
and
CAROSPAN (PTY) LTD t/a NASHUA KIMBERLEY
(Reg No: 2012/001649/07)
1st APPLICANT
2"d APPLICANT
RESPONDENT
2
In re:
CAROSPAN (PTY) LTD t/a NASHUA KIMBERLEY PLAINTIFF
and
MJILA AND PARTNERS INC 1st DEFENDANT
(Reg No: 2019/304921/21)
MRS. ANNA MJILA N.O. 2nd DEFENDANT
(In her capacity as Executrix of Estate
of late Abel Vumile Mjila)
Coram: Olivier AJ
Heard: 25 July 2025.
Delivered: 8 August 2025.
Summary: Civil Procedure – Application for uplifting of bar and condonation for late
filing of Plea – Legal principles confirmed – Applicants failed to meet requirements for
good cause – Applicants failed to make out case for uplifting of bar.
ORDER
1. The application is dismissed with costs; and
2. The costs are to be taxed on scale “B” as set out in Rule 69(7) read with Rule
67A(3) of the Uniform Rules of Court.
JUDGMENT
OLIVIER AJ
INTRODUCTION:
[1] The Applicants approached this Court on application on 28 May 2024 for an order
in essentially the following terms:
1.1 That the Respondent’s application for default judgment which was initially
set down for 31 May 2024, be suspended pending finalization of this
application;
1.2 That the bar to the Applicant’s entitlement to file a Plea in the action
between the parties, be uplifted; and
1.3 That, alternatively to the above, the time periods within which the
Applicants may file their Plea in the action, or take any further steps within
the contemplation of the Uniform Rules of Court (herein after ref erred to
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as “the Rules”), be extended by 5 (five) days from the date of the order
sought.
[2] The Applicants also moved for an order of costs against the Respondent should
this application be unsuccessfully opposed.
[3] Upon an enquiry by myself, Mr. Mathevula who appeared for the Applicants
conceded that the relief sought as set out in paragraph 1.1 herein above has
become moot and that the Applicants will not be moving for said relief any longer.
[4] Counsel for the respective parties thereafter proceeded to address me on whether
the bar that is currently in place and that prevents the Applicants from filing their
Plea in the pending action between the parties should be uplifted, alternatively ,
whether the time periods for filing said Plea should be extended.
[5] The Respondent (as Plaintiff) instituted action against the Applicants (as 1 st and
2nd Defendants respectively) on 7 July 2023 and the action became defended on
1 August 2023 when the Applicants served their Notice of Intention to Defend.
The details of the Respondent’s claim against the Applicants are of no importance
for purpose of this judgment.
[6] The Applicants however failed to file a Plea in the action within the stipulated time
period which le d to the Respondent serving a Notice of Bar on the Attorneys for
the Applicants on 5 September 2023, affording the Applicants 5 (five) days within
which to file their Plea.
I will henceforth refer to the Notice of Bar of September 2023 as “the First Notice
of Bar”.
5
[7] The Applicants however elected not to file a Plea at the time, but instead served a
notice in terms of Rule 23(1) and Rule 30(1) of the Rules on the Attorneys for the
Respondent on 12 September 2023 in which it was alleged that the Respondent’s
Particulars of Claim was vague and embarrassing.
The grounds for the Applicants’ intended exception against the Respondent’s
Particulars of Claim are also not important for purposes hereof.
[8] This notice of intention to except was filed within the allotted time period and the
Respondent was afforded the required 15 (fifteen) days within which to remove the
Applicants’ causes for complaint.
[9] Counsel for the respective parties were ad idem that the First Notice of Bar was
effectively nullified by the filing by the Applicants of their Notice in terms of Rule
23(1) and Rule 30(1) and I will consequently not deal with the First Notice of Bar
herein further.1
[10] The relevant provisions of Rule 23(1) of the Rules state as follows:
“Where any pleading is vague and embarrassing … the opposing party may … deliver an
exception thereto and may apply to the registrar to set it down for hearing within 15 days
after the delivery of such exception: Provided that –
(a) where a party intends to take an exception that a pleading is vague and
embarrassing such party shall, by notice, within 10 days of receipt of the pleading,
afford the party delivering the pleading, an opportunity to remove the cause of
complaint within 15 days of such notice; and
1 See Landmark Mthatha (Pty) Ltd v King Sabata Dalindyebo Municipality and Others: In Re African Bulk
Earthworks (Pty) Ltd v Landmark Mthatha (Pty) Ltd and Others 2010 (3) SA 81 (ECM) paras 12 and 13.
6
(b) the party excepting shall, within 10 days from the date on which a reply to the notice
referred to in paragraph (a) is received, or within 15 days from which such reply is
due, deliver the exception.” (My omissions).
[11] It is clear from the above cited provisions of Rule 23 that the Applicants , if they
were planning on proceeding with the exception process, were supposed to deliver
an Exception within 10 (ten) days from receipt of a reply on their notice in terms of
Rule 23(1), alternatively and in the event of such reply not being received, within
15 (fifteen) days from the date when such reply was due.
[12] It is common cause that the Respondent did not reply to the above notice within
the stipulated 15 (fifteen) days and it is also common cause that the Applicants did
not file an Exception thereafter.
[13] What is however important for purposes hereof is the events that followed
immediately after the above events.
[14] On 12 February 2024, the Respondent served the Applicants’ Attorneys with a
Notice of Intention to Amend the Respondents’ Particulars of Claim in terms of the
provisions of Rule 28(1) of the Rules , wherein the Applicants were afforded the
required 10 (ten) days within which to possibly object to the intended amendments.
It is common cause that the Applicants served no objection within the allotted time
period.
[15] On 7 March 2024 and as a result of the failure by the Applicants to object to the
intended amendments, the Respondent filed the amended pages of its Particulars
of Claim.
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[16] On 19 March 2024, the Applicants served the Attorneys for the Respondent with
an objection to the amendments, purportedly in terms of the provisions of
Rule 28(3) of the Rules.
[17] On 15 April 2024, the Respondent served the Attorneys for the Applicant with a
further Notice of Bar (“ the Second Notice of Bar ”) and as a result of the fact that
the Applicants failed to file a Plea within the period of 5 (five) days that they were
allowed to do so, the Respondent lodged an application for default judgment on or
about 8 May 2024.
[18] Suffice it to say that the application for default judgment was opposed by the
Applicants and as a result of the fact that this application for the uplifting of the bar
was lodged on 28 May 2024, the application for defaul t judgment was removed
from the roll on 31 May 2024.
[19] The application for default judgment is consequently still pending and it is common
cause that the Applicants have, as of yet, not filed a Plea in the action.
[20] I am required to determine whether the bar on the Applicants, as a result of their
non-compliance with the Second Notice of Bar, should be uplifted, alternatively
whether the time periods for the Applicants to file their Plea should be extended.
MERITS:
[21] Mr. Botha who appeared for the Respondent, correctly argued that in terms of the
provisions of Rule 26 of the Rules, the Applicants are ipso facto barred from filing
their Plea and that they may only proceed with the filing of their Plea once the bar
has been uplifted.
[22] It is trite that a party barred from pleading may apply for the bar to be uplifted in
terms of the provisions of Rule 27 of the Rules, but that it is incumbent on such
8
party to show cause as to why the bar should be uplifted and why condonation
should be granted for its failure to file the pleading in question.2
[23] The party in question is expected to show good cause by way of affidavit in which
such party deals with the merits in such a way that the Court can determine the
soundness of the party’s case.3
[24] Generally, when Courts had to decide upon the issue of “good cause”, the Courts
would have regard to:
24.1 Whether a reasonable explanation was afforded for the delay in filing the
pleading in question;
24.2 Whether the request was made bona fide and not with the intention to
delay the proceedings;
24.3 Whether or not the party in question recklessly and intentionally
disregarded the Rules;
24.4 Whether the Applicant’s action or defence is not ill -founded with prima
facie some prospects of success; and
24.5 Whether or not any prejudice suffered by the opposing party can be
compensated by way of an appropriate costs order.4
2 Ingosstrakh v Global Aviation Investments (Pty) Ltd and Others [2021] ZASCA 69; 2021 (6) SA 352 (SCA)
para 21. Also see Irvin v Nefdt 1950 (1) SA 431 (T) at 433.
3 Dalhouzie v Bruwer 1970 (4) SA 566 (C) at 572. Also see Du Plooy v Anwes Motors (Edms) Bpk 1983 (4)
SA 212 (O) at 215.
4 See Ingosstrakh, supra. Also see Smith, NO v Brummer, NO and Another; Smith, NO v Brummer 1954
(3) SA 352 (O) at 358; Colyn v Tiger Food Industries Ltd t/a Meadow Feed Mills Cape [2003] ZASCA 36;
[2003] 2 All SA 113 (SCA) para 11.
9
[25] Good cause requires a full explanation of the default to enable the Court to properly
assess the explanation and the party’s conduct and motives.5
[26] In the present matter, the Applicants had to explain two periods of default for their
failure to file their Plea, namely the period before the Second Notice of Bar was
served on them as well as the period after the Second Notice of Bar was served
on them.
The reason for the above is simply because the Second Notice of Bar was served
on the Applicants as a result of their failure to file their Plea by the required date.
[27] In their Founding Affidavit in this application, the Applicants do not deny that they
are ipso facto barred from filing their Plea in the action and also that the bar that is
in place should first be uplifted in order for them to file their Plea.
I also did not understand Mr. Mathevula to argue anything to the contrary.
[28] The problem however for the Applicants is the fact that in their Founding Affidavit
and in an attempt to meet the requirement of good cause , the Applicants appear
to confuse the events sur rounding the First Notice of Bar and the events
surrounding the Second Notice of Bar.
[29] The Applicants allege d as follows in paragraphs 11 and 12 of their Founding
Affidavit:
“11. The applicants after being served with summons from the respondent filed their notice
of intention to defend, however, the Applicants were subsequently served with a
notice of bar by the Respondents on the 4th of September 2023.
5 Ingosstrakh, supra. Also see Silber v Ozen Wholesalers (Pty) Ltd 1954 (2) SA 345 (A) at 355.
10
12. On the 12 th of September 2023 the applicants filed a notice of exception in terms of
rule 23 …” (My omissions).
[30] It is obvious from the above that the Applicants were dealing with the events
surrounding the First Notice of Bar which, as was pointed out herein above,
became a nullity because of the filing of the Applicants’ notice in terms of Rule 23
of the Rules.
[31] The Applicants thereafter proceed to set out the circumstances surrounding the
amendments to the Respondent’s Particulars of Claim and the ob jection thereto
and then in paragraph 16 of the Founding Affidavit and in dealing with the Second
Notice of Bar, the Applicants allege as follows:
“It is worth noting that at the time of the perfection of the notice of bar the applicants were
under the bona fide impression that they were still embroiled in active litigation with the
Respondents in terms of Rule 28 of the uniform rules, due to a bona fide oversight with
respect to the receipts of the initial notice of intention to amend. This delay was not willful
nor occasioned with malice. I have attached herein correspondence sent to the
respondents (sic) attorneys dated 09th of May 2024…”
[32] The above is the only explanation tendered by the Applicants in their Founding
Affidavit for their failure to either file their Plea prior to service of the Second Notice
of Bar or to file their Plea thereafter.
[33] Despite the Applicants’ failure as referred to above, the Applicants boldly declare
in paragraph 18 of the Founding Affidavit as follows:
“I am advised and it will be submitted that a satisfactory explanation for the delay has
been provided.”
[34] It should be mentioned that the correspondence relied upon by the Applicants as
is mentioned in paragraph 31 herein above, is a letter prepared by the Attorneys
11
for the Applicants and addressed to the Attorneys for the Respondent, the relevant
parts of which reads as follows:
“1. Apropos your application for default judgement and notice of bar filed on our office on
the 8th of May 2024 and 15th of April 2024 respectively.
2. Please note that the above documents served and filed are an irregular step and we
kindly request that your office withdraw (sic) same.
3. We put forth the immediately above as a result of the notice of amendment to your
particulars of claim served on the 6th of March 2024, wherein our office served and filed
a notice of objection to the said proposed amendments on the 19th of March 2024.
4. Due to the pending objection to your amendments, which falls under Rule 28
proceedings, your notice of bar and application for default judgment are premature.
The parties remain in active litigation.”
[35] The above cited contents of the letter relied upon by the Applicants do not take the
case of the Applicants any further since it does not make mention of any alleged
oversight in respect of the receipt of the Respondent’s notice of intention to amend
as referred to in the Founding Affidavit.
[36] The Applicants, despite alleging in their Founding Affidavit that they were under
the bona fide impression that they were still involved in active litigation in terms of
the provisions of Rule 28 of the Rules due to a bona fide oversight in respect of
the receipt of the initial notice of intention to amend, provide no explanation as to
what this alleged oversight was or how it came about.
[37] Mr. Mathevula coul d also not provide any clarity o n the issue of the alleged
oversight during his argument and I hold the view that he would have been hard
pressed to do so in any event, seeing that the initial Notice of Intention to A mend
was served on the Attorney for the Applicants personally.
12
[38] Further to the above and with regards to the allegation that the Applicants labored
under the bona fide impression that they were still involved in litigation in terms of
Rule 28 of the Rules, the Applicants again fail to provide any explanation as to why
or on what grounds they labored under this misconceived impression.
[39] Mr. Mathevula took this argument no further and he could also not explain why the
objection to the amendments to the Particulars of Claim of the Respondent was
filed only after the amendments were already effected, whilst Rule 28 of the Rules
clearly states that an objection should be filed after notice of intended amendments
was given and before such amendments were effected.
[40] Mr. Mathevula in fact later conceded, correctly so, that the procedure followed by
the Applicants in objecting to the amendments effected by the Respondent was
not correct and that it does not provide a sound explanation for the default by the
Applicants to file their Plea, either before or after service on them of the Second
Notice of Bar.
It should be mentioned that Applicants’ Replying Affidavit also fails to take the
above issue any further.
[41] In as far as the Applicants’ explanation for their default is concerned, I hold the
view that the explanation given by th e Applicants falls short of the requirements
set out in the various authorities on the subject in that it fails to provide sufficient
facts as to allow this Court to properly assess how the default came about.6
[42] Mr. Mathevula then implored me to consider granting the order prayed for in the
application based thereon that it would be in the interest of justice to do so.
6 See Ingosstrakh, supra and Silber v Ozen, supra.
13
[43] Mr. Mathevula referred me to two Constitutional Court matters in support of his
argument that the bar on the Applicants to file their Plea should be lifted based
thereon that it would be in the interest of justice to do so, namely Brummer v Gorfil
Brothers Investments (Pty) Ltd and Others7 and Grootboom v National Prosecuting
Authority and Another.8
[44] In Brummer, the learned Yacoob J in considering the issue of condonation, stated
as follows:
“It is appropriate that an application for condonation be considered on the same
basis and that such an application should be granted if that is in the interests of
justice and refused if it i s not. The interests of justice must be determined by
reference to all relevant factors including the nature of the relief sought, the extent
and cause of the delay, the nature and cause of any other defect in respect of
which condonation is sought, the ef fect on the administration of justice, prejudice
and the reasonableness of the applicant’s explanation for the delay or defect.”9
[45] In Grootboom the learned Zondo J, with reference to Brummer, held as follows:
“Although the existence of the prospects of success in favour of the party seeking
condonation is not decisive, it is an important factor in favour of granting condonation.
The interests of justice must be determined with reference to all relevant factors. However,
some of the factors may justifiably be left out of consideration in certain circumstances.
For example, where the delay is unacceptably excessive and there is no explanation for
the delay, there may be no need to consider the prospects of success . If the period of
delay is short and there is an unsatisfactory explanation but there are reasonable
prospects of success, condonation should be granted. However, despite the presence of
reasonable prospects of success, condonation may be refused where th e delay is
7 [2000] ZACC 3; 2000 (5) BCLR 465 (CC).
8 [2013] ZACC 37; 2014 (1) BCLR 65 (CC).
7 [2000] ZACC 3; 2000 (5) BCLR 465 (CC).
8 [2013] ZACC 37; 2014 (1) BCLR 65 (CC).
9 Brummer, supra, para 3.
14
excessive, the explanation is non-existent and granting condonation would prejudice the
other party. As a general proposition the various factors are not individually decisive but
should all be taken into account to arrive at a conclusion as to what is in the interests of
justice.”10
[46] In respect of the issue of the interests of justice, the Applicants state as follows in
paragraph 19 of their Founding Affidavit:
“In any event it will be inimical to the interests of justice, for the applicants to be burdened
with making payment on the respondent’s claim, which ex facie the pleadings are (sic)
unmeritorious.”
[47] The Applicants however tendered no further explanation for the allegation that they
should not be burdened with payment of the Respondent’s claim or why they allege
that the claim is unmeritorious.
[48] The Applicants proceed ed to state as follows in paragraphs 21 and 22 of their
Founding Affidavit:
“The defence which are going to be advanced in the intended plea; inter alia, includes
prescription of the claim which would serve, insuperable hurdles to the claim alleged by
the respondents in the present case.
The applicants submits (sic) that it is in the interests of justice, that the bar be uplifted on,
and the applicant be provided with an opportunity to reply to the respondents (sic) claim
on the basis of a proper exercise of the audi alteram partem principle, and prior to the
hearing of the default judgment application.”
10 Grootboom, supra, paras 50 and 51.
15
[49] The Applicants again failed to provide any substantiation for their allegation that
the Respondent’s claim has prescribed or why it would be in the interests of justice
if the bar is uplifted.
[50] In his Heads of Argument, Mr. Mathevula referred me to Mulaudzi v Old Mutual
Life Assuranc e Company (South Africa) Ltd and Others 11, but upon a proper
reading of the judgment by Ponnan JA, I hold the view that this particular matter
does not support the Applican ts’ case in any way and that it in fact does the
opposite.
[51] In Mulaudzi it was held as follows:
“[33] Mr Mulaudzi’s application demonstrates an obvious lack of attention to matters that
plainly called for an explanation and evidences a failure to fully and candidly enlighten the
court, as an applicant in a matter such as this was obliged to do. I thus find it impossible
to hold that the delay in bringing this application has been explained in a manner that is
remotely satisfactory.
[34] In applications of this sort the prospects of success are in general an important,
although not decisive, consideration … it is advisable, where application for condonation
is made, that the application should set forth briefly and succinctly such essential
information as may enable the court to assess an applicant’s prospects of success. This
was not done in the present case: indeed, the application does not contain even a bare
averment that the appeal enjoys any prospect of success. It has been pointed out that the
court is bound to make an assessment of an applicant’s prospects of success as one of
the factors relevant to the exercise of its discretion, unless the cumulative effect of the
other relevant factors in the case is such as to render the application for condonation
obviously unworthy of consideration.
[35] In my view, the circumstances of the present case are such that we may well have
been entitled to refuse the application for condonation irrespective of the prospects of
11 [2017] ZASCA 88; [2017] 3 All SA 520 (SCA).
16
success. This Court has often said that in cases of flagrant breaches of the rules,
especially where there is no acceptable explanation therefor, the indulgence of
condonation may be refused whatever the merits of the appeal. Here, the delay is so
unreasonable and the explanation offered so unacceptable and wanting that we may well
have been justified in adopting that course.”12 (My omissions).
[52] It is evident that the Applicants’ problems in the present matter were brought about
by the lackadaisical way in which the matter was dealt with.
[53] The Applicants firstly and in answer to the First Notice of Bar, gave notice of their
intention to except to the Particulars of Claim, but then took the exception process
no further;
[54] The Applicants thereafter filed an objection to the Respondent’s amendments to
the Particulars of Claim after the amendments had already been effected and then
alleged, under oath, that they failed to react to the Second Notice of Bar because
they labored under the impression that they were still embroiled in litigation with
the Respondent in terms of the Rule 28 processes.
[55] The Applicants failed to afford this Court with any proper explanation for their
lackadaisical approach and also failed to provide the Court with any insight into
their intended defence against the Respondent’s claim in that they failed to annex
a draft Plea to their papers.13
[56] It is consequently impossible for this Court to assess the Applicants’ alleged
defence to the Respondent’s claim and to determine whether the Applicants do in
fact have some prospects for success with their alleged defence.
12 Mulaudzi, supra, paras 32 to 35.
13 Minister of Police v Mogorogo N.O. [2025] ZANWHC 41 (21 February 2025) para 24.
17
[57] I hold the view that, although the conduct by the Applicants may perhaps not be
described as intentional, same may well be described as recalcitrant and to a great
extent reckless and it definitely appears to be mala fide and ill-considered attempts
at delaying the claim by the Respondent.
[58] I furthermore hold the view that, despite the fact that the interests of justice might
play an important role in considering whether or not condonation should be
granted, or in this case whether a bar should be uplifted, a party cannot simply
approach the Court claiming that the granting of the relief that such party seeks
will be in the interests of justice, without stating why the interests of justice will be
served if the relief is granted.
[59] Mr. Mathevula’s argument that the uplifting of the bar will ensure adherence to the
audi alteram partem principle, does not pass muster.
[60] On the above premises I find that the Applicants have failed to:
60.1 Provide a proper explanation for their failure to file their Plea prior to and
after the Second Notice of Bar;
60.2 Provide the Court with any details as to their alleged defence to the
Respondent’s claim;
60.3 Demonstrate that their actions were bona fide;
60.4 Demonstrate that it would be in the interests of justice to afford them the
relief sought; and
60.5 Show good cause for the uplifting of the bar.
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[61] I am therefore unable to find in favour of the Applicants in this matter and I also
see no reason w hy the costs of the application should not follow the result.
ORDER:
[62] O n the above premises, the follow ing order is made:
1. The application is dismissed with costs; and
2. The costs are to be taxed on scale "B " as set out in Rule 69(7) read
with Rule 67 A(3) of the Uniform Rules of Court.
A.O. OLIVIER
ACTING JUDGE
NORTHERN CAPE DIVISION
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REPRESENTATIVES OF PARTIES:
For APPLICANTS : Adv. R.C. Mathevula
o.i.o Mjila & Partners Inc t/a Mhlabeni Inc.
KIMBERLEY
For RESPONDENT : Adv. A. Botha
o.i.o Haarhoffs Attorneys Inc.
KIMBERLEY