IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)

CASE NO: 15113/2020
REPORTABLE

In the matter between:

MINISTER IN THE DEPARTMENT OF PUBLIC
WORKS AND INFRASTRUCTURE PLAINTIFF/APPLICANT

and

TUINIQUA (PTY) LTD t/a
TUINIQUA CONSULTING ENGINEERS FIRST DEFENDANT

REDER CONSTRUCTION (PTY) LTD SECOND DEFENDANT
/RESPONDENT

Coram: MOOSA AJ
Heard: 5 AUGUST 2025
Delivered: 5 September 2025 (delivered electronically to the parties)
Summary: Civil procedure – Uniform Rule 21 – request for further
particulars – sufficiency of response – application to compel –
discuss when further particulars permissible for plea of denial –
Uniform Rule 21(4) and (5) interpreted – timing re cost order –
costs deferred until the end of civil trial.

___________________________________________________________________
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ORDER
___________________________________________________________________
1. The application under Uniform Rule 21(4) succeeds.

2. Within 10 days of this order, the Respondent shall furnish the Applicant with
sufficient particulars in response to paragraphs 5.6, 7.2, 7.3, and 10.7 of the
Applicant’s request for further particulars for trial dated 29 April 2022.

3. In the event of non -compliance with the order in 2 above , Applicant is
authorised to apply to this Court for the striking out of the Respondent’s
defence in the main action filed under the above case number, and to do so on
the same papers filed in th is application under Uniform Rule 21(4), duly
amplified if needs be.

4. Costs of the application is held over for determination under Uniform Rule
21(5).
___________________________________________________________________
JUDGMENT
___________________________________________________________________
Moosa AJ

Introduction

[1] This judgment relates to an interlocutory skirmish rooted in Uniform Rule
21(4). I refer to the parties as in the application before me. The Applicant, who is the
plaintiff in the main proceeding, seeks to compel the Respondent, who is cited as the
second defendant in the main action, to give sufficient particulars for the Applicant’s
trial preparation. The protagonists were represented at the hearing by Mr Edmunds
SC (for the Applicant) and Mr Potgieter SC (for the Respondent). At the onset, I will
briefly narrate some relevant background facts to the application.

Background: the factual matrix

[2] On 14 November 2014, the National Department of Public Works and
Infrastructure (“the Department”) accepted Respondent’s tender to construct a police
station at Dysseldorp in the Karoo for R39 468 931,99. A Principal Building Contract
was concluded. On 20 November 2014, the site was handed over to the Respondent
so that construction could take place as per the agreed terms of the contract.

[3] Whereas Second Defendant/Respondent was appointed as the building
contractor, the First Defendant was appointed as the structural engineer. They each
accepted their appointment and rendered services as provided in their contracts.

[4] On 21 September 20 16, practical completion (as distinct from final
completion) of the construction works was achieved. The event that is the Applicant’s
cause of action occurred in and during May 2017.

[5] Before final completion was achieved, one of the buildings, Block C,
collapsed. The collapsed building housed, amongst other things, the police station’s
charge office, public waiting room, administrative and safe custody areas, as well as
archives.

[6] For this reason, Block C was declared unsafe for use and occupatio n.
Consequently, it has been vacated and is no longer suitable for its intended
purposes.

[7] The collapse of Block C is widely attributed to subsidence and/or differential
settlement of its foundation. It is alleged that this was caused by negligen ce on the
part of the First Defendant and the Second Defendant/Respondent. Therefore, they
are being sued jointly, alternatively jointly and severally. As against the Second
Defendant/Respondent, it is alleged that, amongst other things, it failed to use f ill
material of G5 quality in the sub-base of the surface-bed.

[8] G5 fill material ‘is a non -specific engineering material that is inter alia used in
construction particularly in foundation fill or backfill. It consists of a mixture of natural

construction particularly in foundation fill or backfill. It consists of a mixture of natural
or crushed aggregate (stone) particles and is specified in the South African National
Standards (SANS) 1200 series. It is typically characterised by: particle size;

aggregate type; compaction properties; and strength and durability’ (Founding
Affidavit: para 23).

[9] On 19 October 2020, the Applicant, as plaintiff, instituted an action against the
First Defendant and the Second Defendant/Respondent. The Applicant sues them
for damages in the sum of R9 795 220,02 arising from an alleged breach of contract.

[10] The p articulars of claim (“the POC”) alleges the Second
Defendant/Respondent caused the Applicant’s damages by: (i) defective
workmanship due to inadequate compaction of the surface -bed and fill underlying
the police station; and/or (ii) the use of defective c onstruction materials, specifically,
the use of subgrade filling material and the failure to ‘utilise fill of G5 quality in the
surface bed’ (the POC: para 74.4.2).

[11] An integral part of the Second Defendant/Respondent’s plea (“the plea”) is its
averment that Applicant’s recourse lies against the First Defendant . The latter was
‘tasked with quality assurance and monitoring of the construction processes’ ( the
plea: para 13.3). The Second Defendant/Respondent avers, at para 13.2 of the plea,
that its workers acted according to instructions given by the First Defendant in its
capacity as supervisor of the construction . It was the contracted party put in charge
by the Applicant of quality management in respect of the construction of the police
station. C oncerning material s used for the construction works, Second
Defendant/Respondent avers that ‘all materials utilized by the Second Defendant
were either prescribed by the First Defendant or approved by the First Defendant
where same did not comply with the First Defendant’s prescriptions’ (the plea: para
73.2).

[12] The plea avers further that ‘the subsidence which occurred resulted from the
First Defendant’s instructions pertaining to what backfill materials should be used
(the First Defendant having autho rised the use of excavated finds as backfill

(the First Defendant having autho rised the use of excavated finds as backfill
material), and/or the First Defendant’s approval of all facets of the foundations and
the First Defendant’s authorisation that construction work on those foundations could
proceed’ (the plea: para 41.5.3).

[13] The same theme as in paragraph 41.5.3 appears in paragraphs 74 and 82.2.

[14] These grounds form the basis of Second Defendant/Respondent’s denial that
it acted negligently in the manners alleged, or at all. It expressly avers that the First
Defendant ‘was guilty of one or more or all of the failures averred … and [the Second
Defendant] pleads that same were the cause of the subsidence and/or differential
treatment which caused the damages to the Police Station’ (the plea: para 70).

[15] Thus, the Seco nd Defendant/Respondent seeks dismissal of Applicant’s
claim.

[16] In its particulars of claim, the Applicant, as plaintiff, alleges the following:

‘54. On or about 5 April 2018, a meeting was held at the offices of the
Department between the Department’s Project Manager, Mr W
Roodman, and Reder Construction’s member, Mr Davids, in
connection with the remediation of the defects. At the meeting, Mr
Davids undertook to furnish the Department with a written proposal for
the fixing of the latent de fects identified in the Department’s letter of 4
July 2017, by 9 April 2018.’

[17] In response to this, the Second Defendant/Respondent pleads as follows:

‘AD PARAGRAPH 54 THEREOF
54.1 The meeting and the date thereof as well as the attendance of the
parties
are admitted.
54.2 The balance of the allegations contained herein are denied.’

[18] The plea was served on 14 April 2022. On 29 April 2022, Applicant’s attorney,
acting pursuant to Uniform Rule 21(2), served a detailed request for trial particulars.

[19] On 23 May 2022, the Second Defendant/Respondent’s attorney served the
‘Further Particulars’ in response to the ‘Request for Further Particulars for Trial’.

[20] For the next 2 years (i.e., from 24 May 2022 until 21 May 2024), everything
went quiet (on all fronts).

[21] During May 2024, Applicant’s legal team were in the throes of trial
preparation. During that process, they engaged with Second
Defendant/Respondent’s ‘Further Particulars’. The Applicant’s legal team consulted
its geotechnical engineering expert to prepare and file its expert report and/or
summaries, focusing on various aspects, including the quality of fill or backfill used in
the construction process.

[22] During the course of their trial preparation, the Applicant’s legal team took the
view that the further particulars received were, in certain key respects, insufficient. A
letter was then dispatched on 22 May 2024 in which the Applicant’s attorney
complained that the responses provided in paragraphs 5.6, 7.2, 7.3, 8.2, and 8.3 of
the ‘Further Particulars’ notice were unsatisfactory. A better response was
requested.

[23] The Applicant’s attorney also complained that paragraphs 10.7 and 10.8 of
the Applica nt’s request dated 29 April 2022 had not been answered at all. A
response was requested, failing which the Applicant threatened to launch an
application to compel.

[24] The letter dated 22 May 2024 went unanswered, leading to a follow -up letter
on 9 July 2024. It too was ignored. As a result, this application was launched on 10
December 2024. Second Defendant/Respondent filed an affidavit in opposition to it.

Issues for adjudication

[25] At the hearing, Mr Edmunds SC, informed me that Applicant no longer
persists with the relief claimed in its Notice of Motion concerning paragraphs 8.2, 8.3,
and 10.8 of its requests for trial particulars; nor does it seek an order compell ing
discovery. The Applicant persists with the remainder of the relief particularised in its
Notice of Motion.

[26] In relevant part, the Applicant seeks an order in the following terms:

‘1. The second defendant is ordered within 10 days of date of this order to
furnish:
1.1 A sufficient response to paragraphs 5.6, 7.2, 7.3 … of the
plaintiff’s request for further particulars for trial dated 29 April
2022 (“the plaintiff’s request”);
1.2 A response to paragraphs 10.7 … of the plaintiff’s request. …
4. Costs on Scale A in terms of Uniform Rule 67A.’

[27] The primary issue arising for determination is whether the Applicant
discharged its onus under Uniform Rule 21(4) for this Court to come to its aid by
ordering the Second Defendant/Respondent to answer, with greater sufficiency, the
Applicant’s request for further particulars as concerns paragraphs 5.6, 7.2, 7.3, and
10.7 thereof. This issue involves a factual enquiry.

[28] If the application succeeds, then a second issue aris es for adjudication,
namely, whether, for purposes of Uniform Rule 21(4), costs follow the cause
immediately, or whether costs are to be de alt with under Uniform Rule 21(5). This is
a legal question involving an interpretation of the intersection between Uniform Rules
21(4) and (5).

Applicant’s request for trial particulars and the relevant response thereto

[29] The main question to be answered involves a factual enquiry that depends
largely on a consideration of the contents of the questions posed in paragraphs 5.6,
7.2, 7.3, and 10.7 of the requests for further particulars, and the contents of the
answers given to each question. It is to this aspect that I turn my attention first.

[30] The Applicant’s request for further particulars comprises 8 pages with
requests itemised 1 to 16, most of which include sub -paragraphs. In aggregate, the
Applicant posed 70 individual requests for partic ulars. Thus, the list of particulars

requested was substantial in its breadth. However, no objection was made to its
scale.

[31] Second Defendant/Respondent delivered a detailed re ply comprising 10
pages. The response purports to answer each of the 70 req uests for particulars. The
relatively few complaints raised to the response, which was delivered within 3 weeks
of the request being served, is a strong indicator that the Second
Defendant/Respondent engaged meaningfully with the substantial number of
requests directed to it. This conduct aligns with the spirit underlying Uniform Rule
21(2).

[32] I will now deal with Applicant’s complaints of lack of sufficiency (i.e.,
adequacy) relating to certain responses received from the Second
Defendant/Respondent. To facilitate an understanding thereof within its context, I will
quote verbatim the Applicant’s relevant request s and the Second
Defendant/Respondent’s response s, while at the same time providing some
background to e ach request with reference to averments in the Applicant’s
particulars of claim and/or its explanation in the founding affidavit as regards the
motivation for making a particular request. To the extent necessary, I will also
provide the Second Defendant/Respo ndent’s reasons for its answer. This is distilled
from the answering affidavit (“the AA”) filed of record.

[33] In the plea at paragraph 41.5.3 (see qu ote in paragraph [12] above), Second
Defendant/Respondent avers that it was the First Defendant who i nstructed what
backfill materials should be used for the sub -base of the foundation. It pleaded
further that the materials used comprise ‘excavated finds’. 1 In relation to this
defence, the Applicant directed the following request for further particulars:

‘5.6 Did the instruction/authorisation relate to any particular “excavated
finds” (i.e. as to location, or nature, or quality of such), or did it relate to
excavated finds from the site generally? Full particularity is required.’

excavated finds from the site generally? Full particularity is required.’

1 In this context, the term ‘excavated finds’ refers to material that had been excavated
elsewhere on the construction site and then used as backfill material.

This request elicit ed the following response from the Second
Defendant/Respondent:
‘5.6 The Second Defendant’s plea is clear and unambiguous where it refers
to “excavated finds” and no further particularity is required alternatively
this is a matter for evidence.’

[34] The Applicant avers that this response is inadequate to enable it to prepare
for trial on the defence pleaded. It seeks a better response which, it contends, will
satisfy the sufficiency test in Uniform Rule 21(4). Hereafter, this is referred to as “the
first complaint”. In its affidavit, the Second Defendant/Respondent avers that the
‘answer to paragraph 5.6 is more than sufficient and the details requested in
paragraph 5.6 … are not required by the applicant to achieve the main purpose of a
request for furth er particulars for purposes of a trial, namely to avoid the element of
surprise’ (para 10.5).

[35] The next complaint of an inadequate response , which requires adjudication
(hereafter referred to as “the second complaint”) , relates to the request concerning
the Second Defendant/Respondent’s plea to paragraph 54 of the POC. The
Applicant’s allegation and the Second Defendant/Respondent’s plea the reto are
quoted respectively in paragraphs [16] and [17] above.

[36] The averments in paragraph 54 of the POC are grounded in the contention
that the Second Defendant/Respondent, prior to its denial of liability, was prepared to
take remedial steps to re pair the latent defects which manifested during the
contractually agreed 10-year warranty period. As a result of the manner in which the
residual denial was formulated in p aragraph 54.2 of the plea (see paragraph [17]
above), the Applicant posed the following requests for further particulars:

‘7.2 Is it denied that Mr Davids undertook to furnish the Department with a
written proposal:
7.2.1 by 9 April 2018; or
7.2.2 at all?
7.3 If the former, by what date did Mr Davids undertake to furnish the
Department with a proposal?’

[37] These requests elicited a response in paragraph 7 of the ‘Further Particulars’.
That response is repeated in paragraph 11.8 of Second Defendant/Respondent’s
answering affidavit as grounds for its opposition to the application. The reply reads:

‘Paragraph 54 of the Second Defendant’s plea is unambiguous and requires
no further elucidation. Furthermore the questions posed herein pertain to a
denial and the Plaintiff is not entitled to request further particulars pertaining to
a denial. In addition the questions posed herein constitute impermissible
interrogatory. In the premises the Second Defendant ref uses the requested
information.’

[38] The final complaint of an inadequate response , which requires adjudication in
this application (hereafter “the third complaint”) , pertains to the request in relation to
the plea in paragraph 73.2 (see quote in p aragraph [11] above). The essence of that
plea is the averment that the Second Defendant/Respondent denies liability on the
basis that all materials used by it in the construction work ‘were either prescribed by
the First Defendant or approved by the First Defendant’. In other words, the Second
Defendant/Respondent shifts blame onto the First Defendant.

[39] The Applicant then directed the following request for further particulars:

‘10.7 Who on behalf of the first defendant approved the use of the
materials?’
Although the Applicant alleges that this question was not responded to, the
answering affidavit avers that it was indeed responded to in the further
particulars as follows:
‘10.5 Vide the Site instructions tabulated supra.’
At the hearing, the Applicant’s position is that this response is inadequate. As
a result, it seeks a more sufficient response for trial preparation purposes.

Submissions by the parties’ counsels

[40] At this point, it is necessary to provide a synopsis of the arguments presented.

[41] Concerning the first complaint, Mr Edmunds SC argued that the response
provided by the Se cond Defendant/Respondent in paragraph 5.6 (see quote in
paragraph [33] above) serves as an obfuscation intended to justify the refusal to
disclose the particulars sought for a purpose consistent with Uniform Rule 21(2).

[42] Mr Edmunds SC argued that the plea in paragraph 41.5.3 (see paragraph [12]
above) amounts to a confession and avoidance which, when analysed
grammatically, is vague in the sense that it is ambiguous as regards the First
Defendant’s instructions pertaining, amongst other things, to where exactly the
excavated finds were to be sourced on site. As authority for his proposition on
vagueness, Mr Edmund s SC cited Venter and Others NNO v Barrit Venter and
Others NNO v Wolfsberg Arch Investments 2 (Pty) Ltd 2008 (4) SA 639 (C). In that
case, it was held (in this Division):

‘A statement is vague when it is either meaningless or capable of more than
one meaning or can be read “in any one of a number of ways”. To put it at its
simplest: the reader must be unable to extract from the statement a clear,
single meaning.’ (para 11)

[43] Mr Edmunds SC contended further that when a plea lacks clarity due to an
ambiguity, then a plaintiff’s remedy is not confined to an exception. Citing MN v AJ
2013 (3) SA 26 (WCC) para 38 and Hassim v Lishiva (35381/2020) [2021]
ZAGPJHC 120 (14 May 2021) para 22, he argued that a plaintiff may, as the
Applicant seeks to do in casu, employ what he termed a ‘soft exception’ (specifically,
to request further particulars aimed at ameliorating the vagueness by eliciting
clarifying particulars).

[44] In his address, Mr Potgieter SC argued that the answer in paragraph 5.6 of
the respons e to the Uniform Rule 21(2) request is clear and unambiguous. He
submitted that an order under Uniform Rule 21(4) is not merited because the issue
involved here is simple, and the answer given is itself simple. Thus, there can be no
complaint.

[45] Citing Molusi and Others v Voges NO and Others 2016 (3) SA 370 (CC) para
28, Mr Potgieter SC argued further that particulars as to the location where the
excavated finds were sourced are irrelevant. He pointed out that Applicant’s pleaded
position is that G5 qu ality fill was not used. Its pleaded position, according to Mr
Potgieter SC, is essentially that, no matter where the fill was found, it was simply not
of G5 quality. Therefore, s o Mr Potgieter SC reasoned, it is unnecessary for the
Applicant, and by extension its geotechnical expert, to know the location from where
the excavated finds were sourced. On this basis, Mr Potgieter SC concluded that it is
not ‘strictly necessary’ for the Applicant to conduct laboratory testing of fill excavated
from the site to prove its pleaded position that G5 quality fill was not used at all. I
deal with these submissions in paragraphs [70] to [77] below.

[46] Concerning the second complaint, Mr Edmunds SC pointed out that
paragraph 54.2 of the Second Defendant/Respondent’s plea (see quote in paragraph
[17] above) is a residual denial of the averments made in paragraph 54 of the POC
(see quote in paragraph [16] above). He argued that the residual denial is
ambiguous because, on one reading, it is wholly denied that Mr Davids undertook to
furnish the Department with a written proposal to fix the latent defects; on another
reading, it is merely denied that Mr David s undertook to furnish the Department with
a written proposal by 9 April 2018. Mr Edmunds SC argued that, in these
circumstances, paragraph 54.2 of the plea is vague in the sense discussed in Venter
supra para 11. Consequently, so his argument proceeded, the Applicant is entitled to
request further particulars with a view to clarifying the bad pleading and ameliorating
its adverse effects.

[47] Citing Snyman v Monument Assurance Corporation Ltd 1966 (4) SA 376 (W)
at 379, Mr Edmunds SC argued that the pre clusion to a request for particulars

at 379, Mr Edmunds SC argued that the pre clusion to a request for particulars
concerning a denial is inapplicable in casu because, so he contended, the second
plausible reading of the denial contains, what he termed a ‘negative pregnant’,
namely, an implied positive averment of a fact (i.e., that Mr Davids undertook to
furnish a written proposal by a date different to that alleged in the POC, being 9 April
2018).

[48] In opposition, Mr Potgieter SC argued that, considering the contents of the
admission in paragraph 54.1 of the Second Defendant/Respondent’s plea (see quote
in paragraph [17] above), it is clear that paragraph 54.2 thereof deni es that Mr
Davids gave any undertaking whatsoever. On this basis, so he hypothesised, the
Applicant is required to prove its averment to the contrary. I deal with this in
paragraph [82] below.

[49] Mr Potgieter SC also submitted that paragraph 54.2 of the plea contains a
bare denial without an implied and affirmative allegation of a fact. Therefore, citing
Hardy v Hardy 1961 (1) SA 643 (W) at 646D-H, he argued that it is impermissible for
the Applicant to request particulars in relation to the denial pleaded. I deal with this in
paragraph [83] below.

[50] Concerning the third complaint, Mr Edmunds SC, appearing for the Applicant,
argued that t he reference in paragraph 10.5 of the further particulars to a tabulated
list of site instructions is no answer to the question posed as to the identity of the
person(s) ‘who on behalf of the first defendant approved the use of the materials’
admittedly used by the Second Defendant/Respondent in the construction work. Mr
Edmunds SC pointed out that the First Defendant is a private company that can only
operate through agents whose identities are known to the Second
Defendant/Respondent.

[51] Mr Edmunds SC argued further that armed with the name(s) of the person(s)
who issued the site instructions relied on by the Second Defendant/Respondent as
part of its defence, the Applicant will be in a position to prepare for trial by testing the
allegations with its own witnesses; and test the averment with the relevant person,
either in cross examination or as a witness under subpoena to be issued by the
Applicant (in the event that the person concerned is not called to testify by the First
Defendant, or by the Second Defendant/Respondent).

Defendant, or by the Second Defendant/Respondent).

[52] In opposition, Mr Potgieter SC argued that the site instructions adequately
answer the question posed in paragraph 10.7 of the request for further particulars.
He added that the particulars requested are, at any rate, matte rs for evidence and,
thus, not ‘strictly necessary’ for Applicant’s trial preparation. Relying on these

arguments, Mr Potgieter SC submitted that the Applicant is not entitled to the relief
sought.

Applicable legal principles

[53] The main issue formulate d in paragraph [27] is vigorously contested. To
decide that issue, it is necessary to discuss the legal framework of Uniform Rule 21.
It reads:

‘(1) Subject to the provisions of subrules (2) to (4) further particulars shall
not be requested.
(2) After the close of pleadings any party may, not less than 20 days
before trial, deliver a notice requesting only such further particulars as
are strictly necessary to enable him or her to prepare for trial . Such
request shall be complied with within 10 days after receipt thereof.
(3) The request for further particulars for trial and the reply thereto shall,
save where the party is litigating in person, be signed by both an
advocate and an att6orney or, in the case of an attorney who,
under section 4(2) of the Right of Appearance in Courts Act, 1995 (Act
No. 62 of 1995), has the right of appearance in the High Court, only by
such attorney.
(4) If the party requested to furnish any particulars as aforesaid fails to
deliver them timeously or sufficiently, th e party requesting the same
may apply to court for an order for their delivery or for the dismissal of
the action or the striking out of the defence, whereupon the court may
make such order as to it seems meet.
(5) The court shall at the conclusion of the trial of own accord consider
whether the further particulars were strictly necessary, and shall
disallow all costs of and flowing from any unnecessary request or reply,
or both, and may order either party to pay the costs thereby wasted, on
an attorney and client basis or otherwise.’ (my emphasis added)

[54] Uniform Rule 21(1) contains a general prohibition against requests for further
particulars. Sub -rule (2) contains an exception to this prohibition. Sub -rule (4)
provides an enforcement mechanism if sub-rule (2) is breached.

[55] Uniform Rule 21(2) is framed in narrow terms. A litigant may request only
such further particulars as are strictly necessary to adequately prepare for trial by
knowing enough about the other party’s case to decide what evid ence is required to
meet it. See Klip Town Clothing Industries (Pty) Ltd v Marine and Trade Insurance
Co Ltd of SA Ltd 1960 (1) SA 446 (W) at 449F-H.

[56] The matter forming the subject of a request for further particulars must be
‘strictly necessary’ for trial preparation purposes. This bar is set relatively high.

[57] The adverb ‘strictly’ is a word that, in context, has the effect of narrowing to a
considerable degree the reach (i.e., scope) of the word to which ‘strictly’ relates,
namely, ‘necessary’. The word ‘strictly’ emphasises that no more (‘only’) particulars
may be requested than is truly (i.e., absolutely) needed for trial preparation
purposes.

[58] The requirement that particulars must be ‘strictly necessary’ for trial
preparation ali gns with the thrust of the prohibition in Uniform Rule 21(1), and the
rule maker’s intention to permit a deviation therefrom ‘only’ when the particulars
sought are ‘strictly necessary’ to achieve effective preparation on an issue(s)
germane to the trial.

[59] The dividing line between particulars that are ‘necessary’ and ones that are
‘strictly necessary’ is somewhat blurred. It is unlikely to be capable of determination
with arithmetical exactness or surgical precision. Whether particulars are ‘strictly
necessary’ is a factual issue. In every case, it is a question of degree to be
determined with reference to each request (not the notice viewed as a whole). In that
enquiry, relevant factors include, but are not limited to, the nature and extent of the

enquiry, relevant factors include, but are not limited to, the nature and extent of the
particulars sought; the correlation between particulars requested and an issue(s)
referred to trial; the purpose for the request; and whether the particulars is/are
matters for evidence.

[60] Uniform Rule 21(2) makes it plain that particulars requested must be required
to facilitate (‘to enable’) trial preparation. Thus, logic dictates that particulars
requested must relate to an issue which remains alive for determination at the time
of its request under Uniform Rule 21(2), or when an application is ma de to court
under Uniform Rule 21(4). It is in this context that pleadings are vital. Pleadings
‘define the issues upon which a court will be called upon to adjudicate and to enable
the parties to prepare for trial on the issues as defined’ (Bragaan Chemicals (Pty) Ltd
v Devland Cash and Carry (Pty) Ltd and Another (11096/20) [2020] ZAGPPHC 397
(5 August 2020) para 15).

[61] However, a court may determine the nature and extent of an issue for trial
adjudication by going beyond the pleadings. See Schmidt Plant Hire (Pty) Ltd v
Pedrelli 1990 (1) SA 398 (D) at 402 - 403. Pre-trial minutes may, thus, be used. See
Rautini v Passenger Rail Agency of South Africa (19132/2014) [2024] ZAWCHC 6
(22 January 2024) paras 15 - 24. As regards preparing expert witness testimony, as
in casu, the issues for trial may be determined by considering, inter alia, the
pleadings, or any available expert summaries/reports (if any), and joint minutes of
experts (if available). See Bee v Road Accident Fund 2018 (4) SA 366 (SCA) paras
64 - 69.

[62] Applications under the ae gis of Uniform Rule 21(4) seek to compel
compliance with notices delivered under Uniform Rule 21(2) where the recipient, for
e.g., failed to answer a question to a sufficient degree. Applications may not be
abusive of court rules, nor be frivolous, nor be brought for any other flimsy reason.
See Szedlacsek v Szedlacsek; Van der Walt v Van der Walt; Warner v Warner 2000
(4) SA 147 (E) at 149 H-I.

[63] The closing words in Uniform Rule 21(4) (i.e., ‘whereupon the court may make
such order as to it seems meet’) indicate that an applicant is not entitled as of right to

such order as to it seems meet’) indicate that an applicant is not entitled as of right to
relief, even if s/he satisfies the threshold requirements. A court retains an overriding
discretion to be exercised judiciously. See Szedlacsek v Szedlacsek supra at 150.

[64] To come home under Uniform Rule 21(4), an applicant must show, first, that
the particulars sought in relation to each disputed request is/are ‘strictly necessary’
to enable proper trial preparation to occur; and, secondly, that any answer(s) already
given in relat ion to each disputed request is insufficient thereby causing real
prejudice in the sense that the requester is rendered unable to properly prepare for
trial on the issue forming the subject of the inadequate response.

[65] A reply to a request for further particulars is not a pleading and, thus, does not
serve the purpose of a pleading. See Ruslyn Mining and Plant Hire v Alexcor Ltd
[2012] 1 All SA 317 (SCA) para 18. When evaluating whether to compel the
furnishing of further particulars, consideration mus t be given to ensuring compliance
with the letter of Uniform Rule 21(4) read with (2), and promoting their underlying
spirit, which is geared to ensuring trial fairness so that justice may be done. That
spirit underpins the purpose which further particular s serve, namely: (i) to prevent
surprise at a trial; (ii) to inform the requester with greater precision what his/her
opponent intends to prove at trial, thereby enabling the requester to prepare his/her
case in a manner that is able to combat counter-allegations; (iii) ‘having regard to the
above, nevertheless not to tie the other party down and limit his case unfairly at the
trial’ ( Thompson v Barclays Bank D.C.O. 1965 (1) SA 365 (W) at 369). See also
Lotzoff v Connel and Another 1968 (2) SA 127 (W) at 129C-F; and (iv) the furnishing
of particulars for trial limit the ‘waste of time and costs by providing the other party
with additional insight into the case which has been pleaded, thus avoiding, where
possible, delays or postponements to seek evidence to meet a case’ (Ruslyn Mining
and Plant Hire v Alexcor Ltd supra para 18).

[66] Having discussed the principles relevant to request s for further particulars, I

[66] Having discussed the principles relevant to request s for further particulars, I
now proceed to adjudicate whether Applicant satisfie s the twin re quirements for the
granting of relief (see paragraph [64] above). If yes, then I must determine whether
my discretion ought to be exercised in the Applicant’s favour (see paragraph [63]
above).

Evaluation of the Applicant’s case for relief

(a) The first complaint

[67] To recapitulate: in the course of denying liability for the Applicant’s damages
caused by subsidence, the Second Defendant/Respondent, at paragraph 41.5.3 of
the plea, averred that ‘the subsidence which occurred resulted from the First
Defendant’s instructions pertaining to what backfill materials should be used (the
First Defendant having authorised the use of excavated finds as backfill material),
and/or the First Defendant’s approval of all facets of the foundations and the First
Defendant’s authorisation that construction work on those foundations could
proceed’. In relation to this plea, the Applicant sought particulars as to whether ‘the
instruction/authorisation relate to any particular “excavated finds” (i.e. as to location,
or nature, or quality of such), or did it relate to excavated finds from the site
generally’. In response, the Second Defendant/Respondent says that its plea in
paragraph 41.5.3 ‘is clear and unambiguous where it refers to “excavated finds” and
no further particularity is required alternatively this is a matter for evidence’. This is a
two-fold answer.

[68] The primary answer given is that the particulars requested are cl early and
unambiguously embodied in paragraph 41.5.3 of the plea. This is , however, not
borne out by the contents of the plea . I revert to this aspect later. The Second
Defendant/Respondent states , in the alternative , that if the particulars sought are
unclear or wholly absent from the plea, then the Applicant is still not entitled to the
requested particulars because the material concerned are matters for evidence.

[69] Uniform Rules 21(2) and (4) ought not to be used to elicit evidence. There are
well established exceptions where particulars may be sought, even when an answer
involves the disclosure of evidence to be led at trial. In casu, the Applicant would be
entitled to further particulars whose refusal would c ause embarrassment or prejudice

entitled to further particulars whose refusal would c ause embarrassment or prejudice
in the preparation of its case for trial by reason that the Applicant would not know
what case it actually has to meet at trial. See Lotzoff v Connel supra at 129E - F;
Lutzen v Knysna Municipality (695/2020) [2023] ZAWCHC 1 00 (8 May 2023) para
47.

[70] I find that the Applicant’s trial preparation is being seriously compromised by
the refusal of the particulars concerned. Merely because evidence may be led

thereon at trial does not disentitle the Applicant to the information in advance of the
trial. The averment that the material concerned has been pleaded is an
acknowledgement of its relevance to the defences raised. The particulars are, in my
view, truly necessary.

[71] The necessity of the particulars concerned is linked to the twin defences
raised. As recorded in the Second Defendant/Respondent’s answering affidavit, its
primary defence is its denial that it breached the contract terms by, inter alia, using
sub-grade fill which is not of G5 quality. Therefore, the Applica nt’s averment to the
contrary is disputed. In this context, the nature, quality, and source of the fill used in
the foundation of Block C, which collapsed, are important matters for geotechnical
expert testimony.

[72] The Second Defendant/Respondent rais ed an alternative plea, namely, that
‘the First Defendant, as the responsible civil and structural engineer, had the final
say as to what in the construction of the police station sufficed (such as, the
materials used …) and the Second Respondent was accor dingly entitled to perform
in accordance with the First Respondent’s instructions and approvals’.

[73] I am satisfied that the particulars sought concerning the instructions given and
the approvals made in relation to the location, nature, and quality of the excavated fill
found on site and used in the construction work are ‘strictly necessary’ for trial
preparation. They go to the root of the main and alternative defences. The
Applicant’s preparation is compromised: its geotechnical expert is unable to c onduct
the necessary laboratory testing of the soil, nor are they able to formulate an opinion
on the nature and quality of the fill allegedly authorised and used. This inability stems
from the refusal to divulge information alleged to be exculpatory in th e
circumstances.

[74] I am satisfied that the Applicant has shown that the further particulars

[74] I am satisfied that the Applicant has shown that the further particulars
concerned are absolutely (‘strictly’) required to enable its expert witness to conduct
necessary testing to produce the expert findings which it needs to potent ially
establish the case that sub -grade fill was used (as alleged in the POC), and

potentially disprove the defence as to the properties and quality of the fill approved
and/or actually used.

[75] The particulars sought are peculiarly in the Second Defen dant/Respondent’s
knowledge. It does not deny possessing the information. Indeed, it contends that the
particulars were pleaded, and clearly and unambiguously so. A plain reading of the
plea reveals that the particulars concerned were not pleaded, let alon e clearly and
unambiguously. Therefore, I am satisfied that the answer forming the subject of the
first complaint is inadequate and renders Applicant unable to properly prepare for
trial.

[76] The ‘excavated finds’ mentioned in paragraph 41.5.3 of the plea is a key
aspect for evidence. If the particulars are not furnished, then the Applicant’s case
may well become compromised at the trial which may expose it to an absolution from
the instance application. I also agree with Mr Edmunds SC that the Applicant will be
caught by surprise if the Respondent is later able to lead its witnesses on the
instructions given by First Defendant as to the location, nature, and quality of the
excavated fill, and its authorisation for the fill actually used. By the time such
evidence is led, the Applicant’s case would be closed. Owing to the refusal of the
particulars, it would not have been able to lead evidence that tended to disprove the
defence raised. This situation would likely result in the Applicant applying for a
reopening of its case so that it could belatedly lead relevant evidence in rebuttal.
Such eventuality is likely to cause delay through a postponement of the trial and
cause its a ssociated increase in costs. All this favour an order compel ling the
furnishing of the further particulars sought.

[77] My aforementioned conclusion is supported by my view that Mr Edmunds
SC’s argument to the effect that the plea in paragraph 41.5.3 (see paragraph [12]
above) is a confession and avoidance appears to be merited. I make no defini tive

above) is a confession and avoidance appears to be merited. I make no defini tive
finding on this. It is an issue best left for the trial court because the question of onus
is implicated . See Merryweather v Scholtz and Another 2020 (3) SA 230 (WCC)
paras 13 - 14. Accordingly, my view is expressed purely to adjudicate the application
before me.

[78] In a confession and avoidance, a defendant admits the material facts alleged
as regards liability, but then seeks to avoid liabil ity by relying on other material facts
averred. See Mabaso v Felix 1981 (3) SA 865 (A) at 875A -H. To my mind, there
appears merit in the submission that this is the import of the plea in paragraph
41.5.3.

[79] On the pleadings, there is an admission that Block C was constructed by the
Second Defendant/Respondent; and it is admitted that Block C collapsed; and it is
admitted that the collapse was due to subsidence as alleged in the POC. Liability is
denied in paragraph 41.5.3 on the basis that the subsiden ce was caused by the First
Defendant. However, the grounds averred for the avoidance are vague as regards
the instructions from the engineer(s) employed by the First Defendant pertaining,
amongst other things, to where exactly the fill was to be sourced on site, as well the
nature and quality of the fill to be excavated for use in the construction of Block C’s
foundation.

[80] Given the circumstances, I find that the vagueness referred to renders the
plea concerned non -compliant with Uniform Rule 18(4). In the premises, the
Applicant is justified in seeking the particulars outlined in paragraph 5.6 of its
request. As a result, an order to this effect will be granted in its favour.

(b) The second complaint

[81] To recapitulate: in paragraph 54 of the POC (see quote in paragraph [16]
above), the Applicant avers that at a meeting with the Second
Defendant/Respondent on 5 April 2018, the representative of the latter, Mr Davids,
verbally undertook to provide the Depa rtment, by 9 April 2018, with a written
proposal to remedy the latent defects forming the subject of Applicant’s claim.
Whereas paragraph 54.1 of the plea (see quote in paragraph [17] above) admits that
a meeting was held on the date averred and that it wa s attended by the persons
alleged, paragraph 54.2 denies the remainder (‘the balance’) of the allegations made

alleged, paragraph 54.2 denies the remainder (‘the balance’) of the allegations made
in paragraph 54 of the POC.

[82] Uniform Rule 22 requires the Second Defendant/Respondent to plead its case
by stating which of the facts averred in paragraph 54 of the POC (see paragraph [16]
above) ‘are not admitted and to what extent, and shall clearly and concisely state all
material facts upon which he relies’. For the reasons advanced here, this provision in
the rules of court was not strictly adhered to.

[83] I reject Mr Potgieter SC’s submission that paragraph 54.2 of the plea clearly
and unequivocally denies that the undertaking was made at all. When the denial in
paragraph 54.2 is understood vis -à-vis the corresponding averment in t he POC and
the admissions in paragraph 54.1, then it is unclear whether the denial relates to the
undertaking as a whole, or merely to its specific terms. If the undertaking as alleged
in the POC was indeed given, then it appears that the Applicant constru ed it, with
some merit in my view, as a form of admission of liability. On this basis, I find that the
requests for further particulars in paragraphs 7.2 and 7.3 are ‘ strictly necessary ’.
They are designed to give the Applicant a proper insight into the case of the Second
Defendant/Respondent as pleaded to decide what evidence is required to meet it.

[84] I concur with Mr Edmunds SC that the denial in paragraph 54.2 of the plea
includes an implied, affirmative assertion of a fact. The absence of an explic it
statement regarding the fact averred does not prevent an order to compel a
response to the particulars requested in paragraph 7.2, in order to avoid any
embarrassment or prejudice. Doing so is ‘strictly necessary ’ to bring clarity to an
unclear pleading regarding a vital issue for trial preparation. See Lutzen supra paras
51 - 52.

(c) The third complaint

[85] To recapitulate: Second Defendant/Respondent’s defence is that it
constructed Block C of the police station under the First Defendant’s supervis ion and
control. It avers that it constructed the police station by acting on instructions given to

control. It avers that it constructed the police station by acting on instructions given to
it by the First Defendant, and on authorisations/approvals issued by the latter.
Accordingly, the Applicant requested particulars as to the identity of the person(s)
who, acting for the First Defendant, issued the relevant construction instructions and
approvals pertaining to the location, nature, and quality of the fill used for the

foundation. The response received was: ‘Vide the Site instructions tabulated supra.’
(see paragraph [39] above).

[86] When adjudicating this aspect of the Uniform Rule 21(4) application, I align
myself with R ose-Innes AJ’s decision in a similar context. In Houtlands Investments
(Pty) Ltd v Traverso Construction (Pty) Ltd 1976 (2) SA 261 (C) at 268A - D, he held:

‘A further criticism of the further particulars was that they fail to indicate who
on behalf of plaintiff received each instruction, as is requested in para. 2 (c) of
the request for further particulars. … Applicant is entitled to know who the
person was to whom the instructions for variations are alleged to have been
given in order to be apprised of the case which it has to meet by being placed
in a position to identify the giving and receipt of the instruction referred to, so
that it can admit or deny that such instruction was given to respondent. …
Where, however, the parties are companies, which can only act through
persons representing them, a party is entitled to know who the person is who
is alleged to have represe nted his opponent in a transaction forming part of
the cause of action. I accordingly hold that respondent should furnish the
name or names of the person or persons who received each of
the instructions listed in annexure 'B' to the further particulars.’ (my emphasis)
(footnotes omitted)

[87] The ‘Site instructions tabulated supra’ are those ‘site instruction numbers’
appearing at paragraph 2.2 of the Second Defendant/Respondent’s reply to the
request for further particulars. The numbers listed are: 65605; 65606; 65609; 65610;
65616; 65617; 65618; 65619; 65621; 65622; 65631; 65632; and 65633.

[88] This tabulation of relevant site instruction numbers appears to be incomplete.
Equally important, there is no indication as to whether the site instruction numbers
also apply to the site authorisations/approvals forming part of the Applicant’s request

also apply to the site authorisations/approvals forming part of the Applicant’s request
for further particulars. The tabulated site instructions do not provide the Applicant
with insight into the identity of the person(s) who issued the relevant site instructions
or the relevant approvals/a uthorisations, which go to the heart of the defence raised
and, in my view, are ‘strictly necessary’. As a result, Applicant is unable to

adequately prepare for trial on these key aspects of the Second
Defendant/Respondent’s defence. For e.g., it is unclea r whether the person(s)
concerned was a qualified engineer.

[89] All the foregoing considerations support my discretion being exercised in
favour of an order which compels the Second Defendant/Respondent to provide
further and better (sufficient) respons es to the Applicant’s requests forming the
subject of the first, second, and third complaint. Finally, this brings me to the second
issue raised in casu.

Costs

[90] Mr Edmunds SC argued that the usual rule that costs follow success should
apply in the context of Uniform Rule 21(4), and immediately so. Mr Potgieter SC, on
the other hand, argued that, if the application succeeds then costs, as a matter of
course, should be held over for determination under Uniform Rule 21(5). These
competing contentions raise a fundamental question in the law of costs within the
realm of Uniform Rule 21 which, based on my research, has not yet been tested.

[91] The submissions advanced by the parties’ counsels call for an interpretation
of Uniform Rule 21(5) read with (4) within their setting and surroundings in Uniform
Rule 21 read holistically. There is a dearth of jurisprudence dealing with the inter -
relationship between the operation of Uniform Rule 21(4) and the duty imposed on a
trial court under sub -rule (5). Thus, a considered discussion thereon is warranted
here.

[92] Uniform Rule 21(4) and (5) are quoted in paragraph [53] above. The latter
provision envisages special considera tion being given by a trial court to the issue of
costs in relation to every request for further particulars, and any response thereto.
On the basis discussed in the ensuing paragraphs, I conclude that the wording used
in Uniform Rule 21(5) is purposefully couched sufficiently broadly to encompass the
issue of costs incurred for applications brought under the aegis of Uniform Rule
21(4).

[93] Some basic principles need restatement. C ourt rules are subordinate
legislation dealing with procedure (not with substantive law). Court rules are
designed to ensure a fair hearing and should, as such, be interpreted in a way which
advances, and not curtails, the scope of the entrenched right to a fair trial. 2 See DF
Scott (EP) (Pty) Ltd v Golden Valley Supermarket 2002 (6) SA 297 (SCA) para
9. Interpretation of court rules adhere to the same principles and follow the same
process as that applicable to the interpretation of other forms of legislation. See
Minister of Public Works and Infrastructure and Others v NMPS Construction CC and
Others 2023 (6) SA 314 (ECB) paras 24 - 28. Interpretation is a unitary process that
involves the use of textual, contextual, purposive, and constitutional values-based
interpretive modalities.

[94] Interpretation, as an integrated process, involves the simultaneous
consideration of the ordinary meaning of a text, its internal and external context, and
its purpose. No single consideration dominates. See University of Johannesburg v
Auckland Park Theological Seminary and Another 2021 (6) SA 1 (CC) para 65. The
Constitution, 1 996 has an abiding hand with a pre -eminent role when any kind of
legislation is interpreted.

[95] By virtue of s 39(2) of the Constitution, 3 at least one constitutional value
should be promoted whenever a court rule is interpreted. See Bato Star Fishing (Pty)
Ltd v Minister of Environmental Affairs and Tourism and Others 2004 (4) SA 490
(CC) para 72; Independent Institute of Education (Pty) Limited v Kwazulu -Natal Law
Society and Others 2020 (2) SA 325 (CC) paras 2, 14 - 18. In this context, fairness in
dispute resolution should be advanced when Uniform Rule s 21(4) and (5) are
interpreted.


2 Section 34 of the Constitution reads: ‘Everyone has the right to have any dispute that can be
resolved by the application of law decided in a fair public hearing before a court or, where appropriate,

another independent and impartial tribunal or forum.’ For a discussion of this right, see De Beer NO v
North-Central Local Council and South -Central Local Council and Others (Umhlatuzana Civic
Association Intervening) 2002 (1) SA 429 (CC) paras 10 - 15.
3 Section 39(2) reads: ‘When interpreting any legislation, and when developing the common
law or customary law, every court, tribunal or forum must promote the spirit, purport and objects of the
Bill of Rights.’

[96] To curb the abuse of the procedur e to request further particulars, Uniform
Rule 21(5) requires a trial court to mero motu consider whether particulars requested
‘were strictly necessary’ . This is the mischief sought to be achieved. See Moaki v
Reckitt and Colman (Africa) Ltd and Another 1968 (3) SA 98 (A) at 102C - D. To
ensure the effectiveness of Uniform Rule 21(5) to combat abuse of process, the duty
imposed is couched peremptorily (‘shall’). See Magagula v Senator Insurance Co
Ltd 1980 (1) SA 717 (N) at 723. This creates a procedural right in the hands of
affected litigants. To further discourage abuse in relation to requests for further
particulars and applications to compel same , Uniform Rule 21(5) caters for punitive
costs. Naturally, this is a factual enquiry in each instance, and a court must exercise
its discretion judicially.

[97] Erasmus Superior Court Practice 2025 D1 Rule 21 – 5 suggest that, in
practice, the duty imposed by Uniform Rule 21(5) is seldom fulfilled. If true, then this
is regrettable. Any such failure is prejudicial to litigants. Moreover, it fails to adhere to
the direction emerging from binding dicta, such as in Moaki supra at 102.

[98] Uniform Rule 21(5) does not operate in isolation from the rest of Unifo rm Rule
21. Therefore, this sub -rule must be interpreted in the context of the rule read as a
whole. Properly interpreted, Uniform Rule 21(5) applies by operation of law
whenever Uniform Rule s 21(2) and (4) are invoked in search of further and better
trial particulars.

[99] The phrase in Uniform Rule 21(5), namely, ‘disallow all costs … flowing from
any unnecessary request or reply, or both’, is sufficiently broad in its scope to
encompass the costs associated with a Uniform Rule 21(4) petition. The matter
before me shows cle arly that a proceeding grounded in Uniform Rule 21(4) flows
directly from a request made under Uniform Rule 21(2), along with an alleged

directly from a request made under Uniform Rule 21(2), along with an alleged
insufficient response thereto and/or a non -response. Therefore, the inescapable
conclusion is that Uniform Rule 21(5) i s integrally linked to the provisions of Uniform
Rules 21(2) and (4).

[100] When a court, acting pursuant to Uniform Rule 21(4), compels a litigant to
provide sufficient particulars based on the perceived strict necessity thereof for an

anticipated trial then, in my view, logic dictates that the most appropriate time to
determine where the liability should lie for the costs associated with the request
made under Uniform Rule 21(2) and the application under Uniform Rule 21(4) is after
the trial has run its course fully. It is only then that a court can, with the benefit of
hindsight, determine with appreciable certainty if the particulars ordered to be
furnished were actually ‘strictly necessary’. This view aligns with the contents of
Uniform Rule 21(5). It too sets the timing for the determination of the liability for costs
after a trial.

[101] The view expressed here was also expressed in Wilson v Spitze 1987 (4) SA
118 (C) at 132, albeit in relation to the old Rule 21(7), being the predecessor of the
present-day Uniform Rule 21(5). In that case, Van den Heever J (in this Division)
held:

‘It is true that in the Cape, in unopposed applications to compel, the Court
often makes a blanket order (usually 'with costs') for compliance with a
request, on the assumption that the respondent retains some sort of residual
right to challenge app licant's entitlement to the information sought when
dealing with the individual questions posed in the request. Perhaps it is this
approach and the fact that Rule 21(7) is seldom if ever invoked that is
responsible for the proliferation I perceive in this Division in requests
for particulars in which the basic rules are honoured far more in the breach
than the observance. I never cease to be amazed at the number of questions
practitioners are capable of thinking up to even the most prosaic and
straightforward of allegations. In my respectful view this approach is wrong.
Not only does an initial blanket order, especially one granted with costs
against the respondent in default, make it difficult to comply with the injunction
contained in Rule 21(7), but it is illogical that the Court should be asked to
make an order twice in regard to the same matter; moreover, on the second

make an order twice in regard to the same matter; moreover, on the second
occasion notionally contradicting the first order made … .’

[102] When Uniform Rule 21(5) is viewed alongside Uniform Rule 21(4), then a n
interpretation must be given to their provisions which harmonises their respective
texts, their contexts, and their purpose within their setting and surroundings in

Uniform Rule 21 read as a whole. Accordingly, an interpretation should be ascribed
to Uniform Rule 21(4) read with (5) which best advances the achievement of fairness
in dispute resolution and the attainment of the rule maker’s objectives. I now turn to
this.

[103] A bad request for trial particulars may be delivered in good faith. However, i t
may also be delivered for tactical reasons. A request tainted with an ulterior motive is
incongruent with the aim sought to be achieved by Uniform Rule 21(2). Any such
request would be an abuse of process , which may merit punitive costs. See Spitze
supra at 132. This also aligns with Uniform Rule 67A(2)( e), which makes a litigant’s
conduct during litigation relevant to determining an appropriate award on costs.

[104] A request for trial particulars and court application for sufficient particulars,
even if made bona fide, imposes burdens on time and cost for the litigant on the
receiving end thereof. Uniform Rule 21(5) aims to indemnify litigants after the fact for
waste of time and costs caused by an unnecessary request for trial particulars;
and/or an unnecessary reply thereto; and/or for engaging with what turned out to be
an unnecessary application under Uniform Rule 21(4); and/or for attending to provide
trial parti culars under fear of contempt of court, which proved not to be ‘strictly
necessary’.

[105] In my view, and for reasons already proferred in paragraph [100] above,
Uniform Rule 21(5), when properly interpreted, renders the rule that costs follow a
successful result inapplicable when an order to compel is issued under Uniform Rule
21(4). In that context, the applicable test is catered for in Uniform Rule 21(5),
namely, whether the particulars sought were unnecessary for trial purposes. Logic
dictates that th is determination should be made with the benefit of hindsight after a
trial.

[106] In sum : When the provisions of Uniform Rule 21(5) are interpreted and its

trial.

[106] In sum : When the provisions of Uniform Rule 21(5) are interpreted and its
practical working in tandem with sub -rule (4) is considered in the light of the objects
sought t o be achieved , then, in my view, in cases such as the present where an
order to compel is granted under Uniform Rule 21(4), the interpretive result which
best promotes the attainment of the purpose underpinning Uniform Rule 21(5) is for

costs to be determined at the end of the trial. This result advances the constitutional
value of fairness in the administration of justice as engrained in s 34 of the
Constitution.

[107] Even if my interpretation of Uniform Rule 21(5) read with (4) is incorrect, I am
still inclined to the view that costs of the application brought in casu ought to be
deferred until the end of the anticipated trial. I will now briefly account for my
reasons.

[108] Mr Potgieter SC contended that some of the trial particulars requested under
the rubric of Uniform Rule 21(2), including ones forming the subject of this
application, were not ‘strictly necessary ’ for the Applicant’s trial preparation. As
indicated earlier, the Second Defendant/Respondent re plied to the Applicant’s
requests in a d etailed response. Procedurally, it is not necessary for it to reserve a
procedural right to argue that, despite responding to the substantial request, some
particulars are not ‘strictly necessary’. This right exists ex lege under Uniform Rule
21(5).

[109] Despite my findings favouring the Applicant, it may be that Mr Potgieter SC’s
argument, alluded to in the preceding paragraph, is vindicated in the fullness of time.
If so, then the granting of costs against the Second Defendant/Respondent at this
stage would be unfair. If costs are awarded in the Applicant’s favour at this stage but
a trial court grants a cost order to the Second Defendant/Respondent under Uniform
Rule 21(5), then the latter order will not have the effect of indemnifying its beneficiary
to an optimal degree. Rather, it will have a somewhat neutralising effect vis -à-vis the
earlier cost order granted. In casu, this consideration supports the deferment of costs
until the end of the trial. Doing so ensures that a cost order actually serves its
purpose of indemnifying the cost creditor to the maximum degree. See Houtlands
Investments (Pty) Ltd v Traverso Construction (Pty) Ltd supra at 271G - H.

Order

Investments (Pty) Ltd v Traverso Construction (Pty) Ltd supra at 271G - H.

Order

[110] As a result, the following order is made:

(a) The application under Uniform Rule 21(4) succeeds;

(b) Within 10 days of this order, the Respondent shall furnish the Applicant
with sufficient particulars in response to paragraphs 5.6, 7.2, 7.3, and
10.7 of the Applicant’s request for further particulars for trial dated 29
April 2022;

(c) In the event of non -compliance with the order in (b) above, Applicant is
authorised to apply to this Court for the striking out of the Respondent’s
defence in the main action filed under the above case number, and to
do so on the same papers filed in th is application under Uniform Rule
21(4), duly amplified if needs be; and

(d) Costs of the application is held over for determination under Uniform
Rule 21(5).


_____________________
F. MOOSA
ACTING JUDGE OF THE HIGH COURT


Appearances

For Applicant: MD Edmunds SC
Instructed by: State Attorney (Mr L Manuel)

For Second Respondent: T.A.L.L. Potgieter SC
Instructed by: Savage & Jooste Adams Inc (Mr M Haasbroek)