SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION, GQEBERHA)
CASE NO: 4439/2024
In the matter between:
METROPOLITAN LIFE Applicant
(a part of Momentum Group Limited
FSP Number: FSP44637)
and
MANDISA TRUTH MAKASI N.O Respondent
(in her capacity as the Executor of the Estate
Late Siyabulele Makasi
Estate Number: 0[...])
___________________________________________________________________
JUDGMENT
___________________________________________________________________
KRüGER AJ:
Introduction
[1] This judgment concerns an interlocutory application by the respondent in the
main application, Metropolitan Life. It seeks leave from this court to file a further
answering affidavit in response to the applicant’s replying affidavit.
[2] For convenience, I refer to the parties as they are in the main application.
[3] It is the respondent’s case that the applicant’s replying affidavit raised new
cause of action, which requires a response from the respondent in order to
determine the main dispute properly. The applicant opposes the interlocutory
application on the basis that it did not introduce a new cause of action but simply
responded to the answering affidavit.
The main application
[4] The applicant approached the court to obtain an order directing the
respondent to pay out the proceeds of a life policy which belonged to the deceased.
In her founding papers, she relied on what she termed representations made to her
by representatives of the respondent over the course of two years to the effect that
the life b enefit in terms of the policy of the deceased would be paid to the estate.
She also relied on the contractual obligations of the respondent in terms of the policy
agreement. Thus, the applicant contended that she, as representative of the estate,
established a clear right to the benefit by virtue of the deceased’s ownership of the
policy. Further, she asserted that harm was established as the estate cannot be
finalised in the absence of the payment, and also in that certain traditional
observations could not be performed because of the non -payment. Lastly, the
applicant stated that she has no other remedy but to request the court to direct the
respondent to make the payment as requested.
[5] In opposing the request for relief, the respondent stated that the applicant
failed to establish a cause of action and that she lacks locus standi to bring the
application. To substantiate this, the policy agreement was attached to its answering
application. To substantiate this, the policy agreement was attached to its answering
affidavit, as well as details of the deceased’s particular policy. This in cluded details
of the named beneficiary of the deceased, his wife, Mrs Shirley Makasi. The
respondent’s case is that the applicant as executor is not entitled to the benefits in
terms of the policy the deceased named his wife, Mrs Shirley Makasi, as his
beneficiary. However, as she had passed away on 9 June 2022, the respondent
maintained that the benefit in terms of the policy accrued to her estate. The
respondent indicated that it was unsure whether an executor was appointed for Mrs
Makasi’s estate.
[6] In her reply to the respondent’s answering affidavit, the applicant stated that
the respondent raised no defence to her cause of action based on estoppel. As
such, its response amounted to a bare denial. Further, and at the core of this
interlocutory disp ute, the applicant placed reliance on a clause in the policy
agreement which was attached to the answering affidavit. This clause relates to
‘unclaimed benefits’ under the policy, which may validly be claimed by the estate of
the policyholder. The applic ant contended that the relief that she seeks, i.e.,
payment of benefits in terms of the policy, falls within that definition. In reply, she
thus maintained that this contractual basis for the relief sought should be considered
as an alternative to the est oppel cause of action. It is to this contractual cause of
action that the respondent wants to respond.
The parties’ submissions on the current dispute
[7] Mr Wessels, who appeared for the respondent, requested the court to
exercise its discretion to allow a further answering affidavit to respond to the new
cause of action raised in reply for the first time. He contended that it would be
prejudicial to the respondent if the applicant were to argue its case in the main
application based on the payment of the benefit as an ‘unclaimed benefit’ without
affording the respondent a chance to respond thereto. 1 Any prejudice to the
applicant, he submitted, can be assuaged with an opportunity to reply to the further
answering affidavit on the narrow issue introduced in the replying affidavit. In sum,
answering affidavit on the narrow issue introduced in the replying affidavit. In sum,
the respondent’s case is that the interests of justice require that this matter be
decided on all the relevant facts.
1 Reliance was placed on Administrator, Transvaal v Theletsane 1991 (2) SA 193 (A) 196-197.
[8] Mr Windvogel, for the applicant, submitted that this application is an attempt
by the respondent to cure a defect in its response to the main application, as it
provided no response to the applicant’s case for a mandatory interdict. Instead, the
respondent raised a defence of the nature of in limine points, relating to standing and
the lack of a cause o f action, which it now seeks to augment. It appended the
contract and knew that Mrs Shirley Makasi lodged a claim in respect of the death
benefit on 12 May 2022. The applicant first had sight of the agreement after delivery
of the answering affidavit. T he applicant was entitled to address the terms of the
agreement in reply. Where, such as in this instance, the information provided by the
respondent in its answering affidavit revealed the existence or the possible existence
of a further ground for the relief sought by the applicant, the applicant is entitled to do
so.2
[9] For the applicant, it was submitted that the respondent failed to meet the
threshold of demonstrating that exceptional circumstances existed that warranted a
fourth set of affidavits. In the context of this matter and how the respondent chose to
respond to the main application, the applicant submitted that the respondent failed to
provide a satisfactory explanation to negative mala fides or culpable remissness as
to why the facts had not been placed before the court at an earlier stage.3
[10] The applicant, it was argued, will be prejudiced if the respondent is given a
further opportunity to answer to the main application, which will delay finalisation of
the matter further. Accordingly, I was asked to dismiss the interlocutory application
with costs on scale B.
The legal framework considered
[11] In Herbstein and Van Winsen ’s commentary on civil procedure in the high
court,4 the authors outline the various attempts that have be en made to formulate a
rule or test for the determination whether a further affidavit should be allowed. The
rule or test for the determination whether a further affidavit should be allowed. The
2 Reliance was placed on Shakot Investments v Town Council, Borough of Stanger 1976 (2) SA 701
(D) 705.
3 Reliance was placed on Afric Oil (Pty) Ltd v Ramadaan Investments CC 2004 (1) SA (N) 38-39.
4 M Dendy and C Loots The Civil Practice of the High Courts and the Supreme Court of Appeal of
South Africa 5th ed (2009) Ch14-p433.
tests range from requiring the applicant to demonstrate (a) ‘exceptional
circumstances’ or (b) ‘special circumstances’ such as an unexpected or ne w matter
raised in the replying affidavit, or (c) where the court requires fuller information on
record, for example, where the interests of a minor are affected to (d) the possibility
of prejudice to the respondent if a further set of affidavits is not al lowed. However,
they conclude that it is neither feasible or desirable ‘to say more than that the court
has a discretion, to be exercised judicially upon a consideration of the facts of each
case, and that basically “it is a question of fairness to both sides”’.5
[12] Corbett J in Bader v Weston 6 expressed the relevant consideration in the
following terms:
In the case of Transvaal Racing Club v Jockey Club of South Africa ,1958 (3)
SA 599 (W), WILLIAMSON, J. (as he then was), stated (at p. 602):
“If a party to an application files and serves certain affidavits and before the
other party has replied thereto he files additional affidavits, either because he
had not had time to complete the whole of his affidavits before a fixed time or
because new matter has been discovered or for any other good reason, I do
not think a Court would reject such affidavits solely upon the basis of any
alleged rule of practice against the filing of more than one set of affidavits.”
I am in respectful agreement with this stat ement of the position. While I fully
agree that litigants on motion or in proceedings instituted by petition should
not be encouraged to present their cases in a piecemeal fashion, at the same
time I consider that the Court should not allow an adjudication of the real
issues in a case to be partially frustrated by too rigid an adherence to what is
essentially a rule of practice. The approach indicated in the above -quoted
statement achieves, in my view, a happy blending of these principles.’
[13] More recently, the Supreme Court of Appeal, in De Kock v Du Plessis ,7 held
[13] More recently, the Supreme Court of Appeal, in De Kock v Du Plessis ,7 held
that the court has to exercise its discretion to admit further an affidavit ‘against the
5 Ibid. The quote inside the quote is from Bangtoo Bros v National Transport Commission 1973 (4)
SA 667 (N) 680A.
6 1967 (1) SA 134 (C) 138B-D.
backdrop of the fundamental consideration that a matter should be adjudicated upon
all the facts relevant to the issues in the dispute’. The SCA further stated that the
court, in exercising its discretion must consider (a) whether the party has provided a
proper and satisfactory reason as to why the new information in the affidavit was not
placed before the c ourt at an earlier stage; (b) whether any prejudice will be caused
by the admission of the affidavit that could not be limited by an appropriate costs
order and (c) the relevance and the importance of the evidence to the issue it has to
determine.
[14] In the current instance, the applicant contended that she was permitted to
raise the legal argument that became evident from the agreement attached to the
answering affidavit of the respondent. It is evident from Shakot Investments v Town
Council, Borough of Stanger8 that such reliance is permitted. But this principle has
been qualified. In Angus v Kosviner,9 Streicher J held
The principle that a party to application proceedings is entitled to make any
legal contention which is open to him on the facts (Van Rensburg v Van
Rensburg en Andere 1963 (1) SA 505 (A) at 509H -510B) has been qualified,
in the case of an applicant, by the proviso that it should not be applied if such
application would be unfair to the respondent (see Minister van Wet en Orde v
Matshoba 1990 (1) SA 280 (A) at 285E-I).
In Minister van Wet en Orde v Matshoba ,10 on which reliance was placed in Angus v
Kosviner, Grosskopf JA explained:
‘This principle is, however, qualified by the proviso that the Court can only act
[rely on legal ar gument evident from the facts] in this way if there is no
unfairness to the respondent. In the case law this element is usually
expressed by requiring that all relevant facts must be before the Court
(cf.e.g.,Sentrale Kunsmis case supra at 404F - G; the Nationwide Truck Hire
case supra at 833H - 834A en Chikane se saak supra at 360G - H ). This
case supra at 833H - 834A en Chikane se saak supra at 360G - H ). This
7 (284/2023) [2024] ZASCA 117 (24 July 2024) paras 24-26.
8 At 705A-B.
9 1996 (3) SA 215 (W) 222G-H.
10 1990 (1) SA 280 (A) 285G. My translation from the original Afrikaans.
eliminates the most obvious source of possible unfair prejudice to the
respondent.’
[15] It is trite that the notice of motion and the affidavits exchanged by the partie s
define the issues between them and provide the evidence on the basis of which the
matter is to be decided.11 As the main dispute currently stands, the applicant’s case
rests on a contractual entitlement to the payment of the policy, in reply specified t o
be ‘unclaimed benefits’, and on the basis of representations made to her, i.e.
estoppel. The respondent’s opposition rests on a lack of locus standi and that her
estoppel cause of action is no cause of action. In its view, the named beneficiary’s
estate is entitled to payment in terms of the policy. Without a further answering
affidavit, the dispute must be determined on the basis that the respondent has not
answered to the allegation that it holds the money as an unclaimed benefit.
[16] In considering th ese facts to answer the questions outlined in De Kock v Du
Plessis, in view of the qualified principle as stated in Angus v Kosviner, I am of the
view that the respondent should be allowed to file a further answering affidavit to
place all the relevant facts before the court determining the dispute. I outline the
considerations relevant to each question briefly:
a. The respondent did not answer to the applicant’s reliance on specific
clauses of the agreement, as these were not relied upon by the applicant
in her founding papers. The specific reliance only came in the replying
affidavit.
b. In this instance, a costs order may address prejudice to the applicant. It is,
however, unclear to what extent this application caused a delay in the
determination of the main application. It must also be borne in mind that
the applicant opposed this application.
c. The respondent’s answer to the applicant’s reliance on a specific term of
the contract stands central to the determination of the dispute, and the
the contract stands central to the determination of the dispute, and the
respondent will be prejudiced if it has to enter the proverbial battle with
one hand tied behind its back.
11 2016 (3) SA 370 (CC) paras 27-28 (footnotes omitted).
[17] The respondent requested its costs of this application only in the event of
opposition. The applicant opposed the application, adding to the del ay. In my view,
the respondent is entitled to its costs on scale B as requested.
[18] I make the following order:
a. The respondent is granted leave to file a further answering affidavit to deal
with the causa relating to an alleged unclaimed benefit as outlined in the
applicant’s answering affidavit within 10 days of this order.
b. The applicant may file a further replying affidavit to the further answering
affidavit within 10 days of receipt of the further answering affidavit.
c. The applicant is directed to pay the respondent’s costs for this application
on scale B.
R KRüGER AJ
ACTING JUDGE OF THE HIGH COURT
Date of hearing: 31 July 2025
Date of judgment: 2 September 2025
APPEARANCES:
For the applicant : Adv L Windvogel
Instructed by: Nkontso & Co Attorneys, Gqeberha
For the respondent: Adv LN Wessels
Instructed by: Fourie Basson & Veldtman, Tyger Valley
c/o Lexicon Attorneys, Gqeberha