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document in compliance with the law and SAFLII Policy
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION, JOHANNESBURG
Case Number: 05845/2018
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: YES
15 September 2025
In the matter between:
DREYER: PAUL First Applicant
Identity Number 6[…]
DREYER: ALETIA YVETTE Second Applicant
Identity Number 6[…]
and
ALLIED STEELRODE (PROPRIETARY) LIMITED Respondent
Registration Number 2012/173965/07
In re – Application for Judgment (Common Law)
ALLIED STEELRODE (PROPRIETARY) LIMITED Plaintiff
Registration Number 2012/173965/07
and
DREYER: PAUL First Defendant
Identity Number 6[…]
DREYER: ALETIA YVETTE Second Defendant
Identity Number 6[…]
Date of Hearing: 4 September 2025
Date of Judgment: 15 September 2025
2
JUDGMENT
ESTERHUIZEN AJ
This is an application in terms of Rule 30 wherein the applicants seek the setting
aside of the respondent’s application for ‘ judgement (common law)’ dated
19 August 2024 (“the application”).
Introduction
[1] The applicants are the defendants in pending action proceedings under the
above case number (“the action”). The respondent in this application is the
plaintiff in the action. For the sake of convenience, I refer to the parties as
they are in this application.
[2] The following background is common cause:
[2.1] The action was instituted by the respondent on 14 February 2018;
[2.2] The applicants delivered a notice of intention to defend the action on
1 March 2018;
[2.3] The applicants, pursuant to an application for summary judgment by
the respondent, delivered an affidavit resisting summary judgment
and were granted leave, by consent, to defend the action;
3
[2.4] The applicants’ plea was delivered on 1 June 2018;
[2.5] On 10 April 2019, the Court granted a separation of issues in terms of
which the separated issues would be determined first, with the
remaining issues to stand over for later determination.
[2.6] The separated issue was ultimately determined in favour of the
respondent by the Supreme Court of Appeal on 21 December 2023,
with the Constitutional Court declining to hear an appeal thereof on
16 May 2024. Only the separated issue has been determined in
favour of the respondent, and not any remaining issues;
[2.7] The action instituted by the respondent has not been withdrawn
neither have the outstanding separated issue been determined.
[2.8] On 19 August 2024 the respondent delivered an application (‘the
monetary application”) seeking a monetary judgment against the
applicants, for the same relief as prayed for in the action and based
on the same dispute which forms the subject matter of the action;
[2.9] On 30 August 2024, the applicants entered their intention to oppose
the monetary application and simultaneously therewith, delivered a
notice to remove the cause of complaint in terms of Rule 30 (“the rule
30 notice”). In terms of th is notice, the respondent was informed that
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the application constitutes an irregular step and was provided with an
opportunity to remove the irregular step;
[2.10] On 2 September 2024, the respondent served a notice in terms of
rule 28(1) of the Uniform Rules. In terms of the latter notice the
respondent sought to amend the application by substituting the words
of the monetary application which first read “Application for Default
Judgement” with the words “Application for Judgement (Common
Law). The amendment was affected on 17 September 2024 without
any opposition by the respondents;
[2.11] Because the respondent did not remedy and/or remove the irregular
step this application was instituted by the applicants.
Discussion
[3] This application concerns the applicants’ rule 30 application in which the
applicants are seeking the setting aside of the monetary application instituted
by the respondent. The applicant s argues that the application is not permitted
in terms of the Uniform Rules of Court and therefore it is an irregular step. If
removed it will cause the respondents monetary application to be set aside as
being an irregular step.
[4] In its monetary application the respondent seeks the following relief:
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“BE PLEASED TO TAKE NOTICE THAT the Plaintiff will make
application to this Honourable Court for the following relief:
1. Payment in the sum of R15 000 000,00 (fifteen million rand);
2. Interest thereon at the rate of 15,5% (fifteen comma five percent
from 1 October 2014 to date of final payment, compounded monthly
in arrears, both days included;
3. Cost of suit on the scale as between attorney and client;
4. Further and/or alternative relief.”
[5] This is the same relief being sought in the respondent ’s action instituted
against the applicants. In its rule 30 notice the applicant informed the
respondent that their monetary application was an irregular step because, in
summary, the respondent’s monetary application is not provided for or
permitted in the Uniform Rules of Court and because the action has not been
withdrawn it stands to be set aside as an irregular step in terms of rule 30.
[6] I deal first with the respondent’s argument that the applicants rule 30
application is no more than a dilatory tactic and an attempt to evade their
obligations. In this regard the respondents argued that because they are
seeking relief ‘at common law to fill a lacuna in the rules of procedure, there
are no procedural rules that can be breached in this case’. Because rule 30
applies only to matters of form , so the respondent argues, some kind of
breach of the rules of court must be alleged and because it had not, the
applicants rule 30 application should fail.
6
[7] In Participation Bond Nominees (PTY) LTD v Mouton and others (3) [1978] 2
All SA 302 (W), which dealt with rule 30 pre its amendment but which principle
is still relevant1, stated:
“In my view, the words “any cause” are used in the widest possible
sense and refer to any judicial proceeding of whatsoever nature
(see Steytler NO v Fitzgerald 1911 AD 295 at 331). I agree with
Mr McCall’s submissions on this point. In my view the Rule is wide
enough to cover the eventuality that has arisen in this matter and I
therefore find against the respondent on the second point as well.”
[8] In BMW Financial Services South Africa (Pty) Ltd v Doola [2025] 2 All SA 107
(GP) the court stated:
“[17] I find my interpretation in line with the court in SA Metropolitan
Lewensversekeringsmaatskappy Bpk v Louw NO 1981 (4) SA
329 (O) at 333G –H [also reported at [1981] 2 All SA 268 (O) –
Ed] who stated the object of rule 30(1) as follows:
“I have no doubt that rule 30(1) was intended as a
procedure whereby a hindrance to the future conducting
of the litigation, whether it is created by a non-observance
of what the Rules of Court intended or otherwise, is
removed.”
[18] I therefore conclude that an “irregular step”, as contemplated in
rule 30(1), must be a procedural step which is taken in disregard
of the rules, advances the process closer to completion and
prejudicially affects the innocent party’s rights in the future
conduct of their litigation.”
[9] The monetary application cannot be described differently than being a
procedural step by which the respondent intends to obtain substantive relief
and as such falls within the ambit of rule 30 which must be applied in a wide
1 See Derek Harms, Civil Procedure, Civil Procedure in the Superior Courts, Part B
High Court Uniform Rule 30 irregular proceedings. B30.1.
7
sense. The alleged irregular monetary application has been brought ‘ in
disregard’ of the current rules of court. This is evident from the applicant s and
the respondent both arguing that the Uniform Rules of Court, as they currently
stand, do not make provision for this type of application.
[10] By considering the rule 30 application it is in fact advancing the process to
completion. This is so because if successful the monetary judgment will be set
aside and the matter can proceed to trial.
[11] The applicant has also set out their reasoning as to why, if the monetary
application is allowed to proceed, they would suffer prejudice. The prejudice is
dealt with below within the context of the court’s inherent powers.
[12] The respondent argued that because the word ‘default’ had been removed
from the wording of its monetary application and replace d with the words
‘judgment (common law)’ that the applicants rule 30 had no further application
because the rule 30 was pursuant to the ‘ default’ reference in the initial title of
the monetary application. As is clear from both the applicants ’ application and
the answer thereto the change of the wording is of no consequence when
regard is had to the substance of the rule 30 application. I agree with counsel
for the applicants that the amendment is thus of no relevance and did not
address the substance of the rule 30.
[13] I am satisfied that the applicants rule 30 application does fall within the ambit
of the rule and can thus not be said to be an abuse of process.
8
[14] As the matter falls within the ambit of rule 30, I now return to the question of
the court’s inherent powers . The reason why the inherent power of the court
needs to be considered is evident from the pleadings itself . In this regard the
applicants pleaded in their founding affidavit that:
“[14] The intended amendment does not cure the cause of complaint.
Whatever title or description the respondent purports to give to
the default judgment application is irrelevant. The default
judgment application, in its substance, is not a permitted
process in terms of South African Law and in all the
circumstances constitutes an irregular step.” (Emphases added)
[15] In answer to this the respondent denies these averments on the basis that the
applicants ‘appear to ignore the inherent jurisdiction of this Honourable Court’.
This answer aligns with the respondent’s averments that its monetary
application is prefaced on the courts inherent jurisdiction derived from
section 173 of the Constitution.
2 In this regard the respondent in its answering
affidavit stated that:
“6. The main application 3 is prefaced upon the inherent jurisdiction
of this Honourable Court as laid down in the Constitution where
it reads as follows :
173 The Constitutional Court, the Supreme Court of
Appeal and the High Court of South Africa each has
the inherent power to protect and regulate their own
2 This is also confirmed in the answering affidavit in which the respondent argued that:
“4. I depose to this Affidavit in opposition to the relief sought by the Applicants
under Rule 30 of the Rules of this Court. The Respondent is of the opinion
that this application is defective in that it does not consider the inherent
jurisdiction of this Honourable Court. …” (Emphases added)
3 This is a reference to the monetary application.
9
process, and to develop the common law, taking
into account the interests of justice.
6.1 It is clear from this section that this Honourable Court
enjoys an “inherent power to protect and regulate” its own
process, and to “develop the common law taking into
account the interests of justice”.
6.2 It is the Respondent’s view that this present matter cries
out for such judicial intervention, in the interests of justice,
so that the Respondent may receive justice without further
delay and avoid the expense (and delay) of proceeding to
a further trial.” (Emphases added)
[16] This argument is re- stated in the respondent’s heads of argument in which it
is argued that currently the Uniform Rules of Court do not provide for the relief
being sought in its monetary application. The respondent argued:
“8. It appears that there is no provision in the Rules of this
Honourable Court for the hearing and conclusion of an action
when there are no issues in dispute and no further evidence is
required. In essence Plaintiff seeks to use motion proceedings
in an action. There is thus a lacuna in our procedural law.
However, section 173 of the Constitution (Chapter 9 of the
Courts and Administration of Justice) provides as follows: ..”
(Emphases added)
[17] To describe the court’s inherent power the respondent referred to the
judgment of MC v MJ (A3076/2016) [2017] ZAGPJHC 279 (28 March 2017) in
which it was stated:
“[14] In ex parte Millsite Investments Co (Pty) Ltd the court per Vieyra
J said the following about inherent jurisdiction:
“… apart from powers specifically conferred by statutory
enactments and subject to any deprivation of power by
the same source, a Supreme Court can entertain a claim
or give any order which at common law it would be
entitled so to entertain or give. It is to that reservoir of
power that reference is made where in various judgments
10
courts have spoken of the inherent power of the Supreme
Court. The inherent power is not merely one derived
from the need to make the court order effective, and to
control its own procedure, but to hold the scales of justice
where no law provides directly for such a given
situation.”.
[15] Pollak described it as follows:
“In short, therefore, the position is that unlike, say, the
magistrates’ courts or the industrial court, the power of
the Supreme Court is not spelled out in a legislative
framework and limited by its creating statute: it inherently
has all such power as entitles it to entertain to hear ‘all
causes arising’ within the area over which it exercises
jurisdiction.”
[16] The Constitution of the Republic of South Africa, 1996 has
codified the doctrine of inherent jurisdiction . Section 173 of the
Constitution reads :..
[17] When one considers the meaning and purpose of ‘inherent
jurisdiction’ in light of the above authorities, it can never be
conferred upon a court by statute. The Magistrate’s Court and
in this instance the Regional Divorce Court, being a creature of
statute, does not have inherent jurisdiction. Inherent jurisdiction
is exclusively borne by the High Court. Such jurisdiction can
never be conferred by statute. It may only be excluded by
statute.”
[18] From this judgment, the respondent argues, this application should be
dismissed as the monetary application was instituted to “hold the scales of
justice where no law provides directly for such a given situation.” This is
putting the cart before the horse as the respondent is jumping to the
conclusion without following the preceding steps. To reach the conclusion as
proposed by the respondent the court must exercise its inherent jurisdiction as
provided for in s ection 173 of the Constitution. This is evident from MC v MJ
supra which restated the fact that the court’s inherent powers have been
codified by s ection 173 of the Constitution. Therefore, to ascertain whether
11
the inherent powers have been invoked section 173 must be complied with.
The first question is thus whether or not a case has been made which allows
the court to invoke its inherent powers and only if it has is the court called
upon to consider the interest of justice.
[19] When and under which circumstances the court can invoke its powers
provided for in section 173 of the Constitution have formed the subject of
various judgments including that of the Constitutional Court. In Phillips and
Others v National Director of Public Prosecutions' 2006 (1) SA 505 (CC) the
Constitutional Court, with regard to the exercise of the section 173 power,
made the following statements:
“[47] The Constitution requires that judicial authority must vest in
the courts which must be independent and subject only to
the Constitution and the law . Therefore, courts derive their
power from the Constitution itself. They do not enjoy original
jurisdiction conferred by a source other than the Constitution.
Moreover, in procedural matters, section 171 makes plain
that “[a]ll courts function in terms of national legislation and
their rules and procedures must be provided for in national
legislation”...
[48] ... ordinarily the power in s 173 to protect and regulate
relates to the process of court and arises when there is a
legislative lacuna in the process. The power must be
exercised sparingly having taken into account interests of
justice in a manner consistent with the Constitution.
[49] It may be that the High Court could legitimately claim
inherent power of holding the scales of justice where no
specific law directly provides for a given situation or where
there is a need to supplement an otherwise limited statutory
procedure such as the one in s 26 of the Act. This can wait
for a decision in the future when such a case presents itself.
[50] In the present matter the applicants made no attempt
whatsoever to bring their case within the provisions of the
whatsoever to bring their case within the provisions of the
Act, which they could have done. The effect of the High
12
Court order rescinding the restraint order was to ignore the
statutory provisions of an Act of Parliament.
[51] Whatever the true meaning and ambit of s 173, I do not think
that an Act of Parliament can simply be ignored and reliance
placed directly on a provision in the Constitution, nor is it
permissible to side -step an Act of Parliament by resorting to
the common law.
[52] I doubt that the inherent jurisdiction of the Court under s 173
is such that it empowers a Judge of the High Court to make
orders which negate the unambiguous expression of the
legislative will. Moreover, the power that a Court has to use
its inherent power is a special and extraordinary power which
should be exercised sparingly and only in clear cases. This
is not such a case.” 4 (emphases added)
[20] Evident from this judgement is that:
[20.1] the power provided for in s ection 173 must be sparingly exercised
and in clear cases only;
4 Also see Krygkor Pensioenfonds v Smith 1993 (3) SA 459 (A) at 469 where the
Supreme Court of Appeal stated:
“Wat duidelik uit hierdie gewysdes blyk, is dat die Hof s legs in uitsonderlike
gevalle sy inherente bevoegdheid sal uitoefen om prosedures te volg
waarvoor nie in die gewone prosesreg voorsiening gemaak word ni e. Die
uitsonderlike gevalle word op verskillende maniere omskryf in die beslissings
wat hierbo aangehaal is. Vir huidige doeleindes is dit egter genoeg om te sê
dat die Hof hierdie bevoegdheid sal uitoefen net waar geregtigheid vereis dat
afgewyk word van die gewone prosedure-reëls. En selfs waar 'n afwyking
nodig mag wees, sal die Hof natuurlik altyd poog om so naby as moontlik
aan die erkende praktyke te bly.”
In S v. Pennington and Another 1997 (4) SA 1076 (CC), the Constitutional Court
stated, with regard to the power envisaged in section 173, state the following:
“[23] The power is to 'protect and regulate' the process of this Court taking
into account 'the interests of justice'. When this power is exercised it
into account 'the interests of justice'. When this power is exercised it
should be done in a way which accords with the requirements of the
Constitution and as far as possible with the procedure ordinarily
followed by this Court in similar cases.”
13
[20.2] it can only be exercised in those circumstances which relates to the
processes of court;
[20.3] it can only arise when there is a legislative lacuna in the process. This
is an important consideration because ‘ courts function in terms of
national legislation and their rules and procedures must be provided
for in national legislation’; and
[20.4] the court can thus not sidestep the existing rules and legislation by
simply resorting to the common law.
[21] In S v Lubisi and Others2003 (9) BCLR 1041 (T) 5 the court set out a helpful
summary of the case law regarding the recognition of the Constitution when a
court is called upon to invoke its inherent powers and succinctly summarised
it as follow:
“Section 173 of the Constitution Act 108 of 1996, enshrines the
courts’ inherent power to protect and regulate their own process.
It reads as follows:
“Inherent power. – The Constitutional Court, Supreme
Court of Appeal and High Court have the inherent power
to protect and regulate their own process , and to develop
the common law, taking into account the interests of
justice.”
This power must be read with sections 7 and 8 of the
Constitution, establishing the Bill of Rights as the cornerstone of
democracy and underlining the fact that the judiciary is bound
thereby; as well as section 39(2) which reads as follows:
5 Page 1050 -1052.
14
“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.”
…
... This obligation was described as follows by Ackermann and
Goldstone, JJ in Carmichele v Minister of Safety and Security
and Another (Centre for Applied Legal Studies
Intervening) 2001 (4) SA 938 (CC) at paragraph 33 et seq as
follows:
[33] “. . . Section 39(2) of the Constitution provides that
when developing the common law, every court must
promote the spirit, purport and objects of the Bill of
Rights. It follows implicitly that where the common
law deviates from the spirit, purport and objects of
the Bill of Rights the courts have an obligation to
develop it by removing that deviation . . .
[34] . . . under the Constitution there can be no question
that the obligation to develop the common law with
due regard to the spirit, purport and objects of the
Bill of Rights is an obligation which falls on all of our
courts including this Court.
[35] In this case the High Court and the SCA were
requested to develop the common law, not on a
constitutional basis but in the light of the unusual
nature of the applicant’s cause of action. The
common-law, especially in the field of delictual
liability, has constantly required development.
Where a court develops the common law, the
provisions of section 39(2) of the Constitution oblige
it to have regard to the spirit, purport and objects of
the Bill of Rights.
[36] In exercising their powers to develop the common-
law, Judges should be mindful of the fact that the
major engine for law reform should be the
Legislature and not the Judiciary . . . The (interim
Constitution) brought into operation, at one fell
swoop, a completely new and different set of legal
norms. In these circumstances the courts must
remain vigilant and should not hesitate to ensure
that the common law is developed to reflect the
that the common law is developed to reflect the
spirit, purport and objects of the Bill of Rights. We
should add, too, that this duty upon judges arises in
respect both of the civil and criminal law, whether or
15
not the parties in any particular case request the
court to develop the common law under section
39(2).”
…Hansen v Regional Magistrate, Cape Town and
Another 1999 (2) SACR 430 (C) at 433e–g:
“Section 173 of the Republic of South Africa
Constitution Act 108 of 1996 (‘final Constitution’)
has broadened the inherent jurisdiction of the court
in that it provides that the Constitutional Court,
Supreme Court of Appeal and High Courts have
inherent power to protect and regulate their own
process, and to develop the common law, taking
into account the interests of justice. Section 173 of
the Constitution confirms a concept of inherent
jurisdiction which promotes the interests of justice
within the context of the values of the Constitution.
This is a wider concept than that provided for in s
19(1)(a) and s 19(3) of the Supreme Court Act 59
of 1959 which formed the basis of the analysis of
the inherent jurisdiction in Sefatsa”. (Sefatsa and
Others v Attorney -General, Transvaal and
Another 1989 (1) SA 821 (A)) (per Davis J.)
Although the powers granted to the court in terms of section
173 of the Constitution still have to be exercised with caution
and circumspection, the Constitution has broadened the scope
for judicial activism where such appears to be in the interest of
justice.”
[22] Evident from this judgement is that ;
[22.1] When called upon to develop the common law the court must
promote the spirit, purport and objects of the Constitution;
[22.2] the court must be mindful that law reform is for the Legislature and
not the Judiciary;
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[22.3] when called upon to develop the common law the court must take
into consideration the interest of justice; and
[22.4] these powers must be exercised with caution and circumspection.
[23] In Siemens Telecommunications (Pty) Ltd v Datagenics (Pty) Ltd 2013 (1) SA
65 (GNP) at 72E-J the Court held:
“Under its constitutional power to regulate its own process, a
high court does not have the power to create substantive law.
The creation of substantive law is reserved for its inherent power
to develop the common law. Section 173 of the Constitution
does not enable a court, under the mantle of regulating its own
process, to impair the existing substantive rights of a litigant .
Under the common law, as I have said, an incola plaintiff
company has an unimpaired substantive right to pursue legal
proceedings.
A mere reference to the development of the common law in this
context would also be of no assistance. Before that exercise can
be done, a number of questions must first be asked and
answered. The first enquiry would be, whether, given the
objectives of s 39(2) of the Constitution (interpretation and
development of the common law), the existing common law
should be developed beyond existing precedent. If this leads to
a negative answer, that would be the end of the enquiry. If it
leads to a positive answer, the next enquiry would be how the
development should occur, and whether a court should embark
on that exercise. The need to develop the common law under s
39(2) could, it has been held, arise in at least two instances. The
first would be when a rule of the common law is inconsistent
with a constitutional provision. Repugnancy of this kind would
compel an adaptation of the common law to resolve the
inconsistency. The second possibility arises even when a rule of
the common law is not inconsistent with a specific constitutional
provision, but may fall short of its merit, report and objects.
Then, the common law must be adapted so that it grows in
Then, the common law must be adapted so that it grows in
harmony with the 'objective normative value system' found in the
Constitution. (Emphases added)
[24] Evident from this judgement is:
17
[24.1] that the court cannot make substantive law;
[24.2] the provisions of s ection 173 cannot be invoked if the result of doing
so would be to impair the existing substantive rights of a litigant;
[24.3] a mere reference to the development of the common law would be of
no assistance.
[24.4] The court went further to describe a two -stage approach which must
be followed in considering whether or not its powers are invoked
under section 173 of the Constitution.
i. The first enquiry a court must have is whether the existing
common law must be developed beyond current precedent and
if not that it is the end of the enquiry.
ii. If the need does arise only then will the court be required to
proceed with the second stage of the enquire. During this
second stage it must be considered how the common law is to
be developed. For this stage the party seeking the relief must
provide the court with the specifics as to the manner in which it
must be developed. In Oosthuizen v RAF [2011] 4 All SA 71
(SCA) the SCA said:
18
“[16] Save for a general assertion on behalf of the
appellant that a grave injustice would result if the
high court were not to be compelled to come to his
rescue and a general reliance on the expression
“ubi jus ibi remedium”, we were not told, nor was
the high court, in which specific manner the
common law should be developed, nor what
aspect thereof required to be developed. It
appears that the appellant was ultimately
contending that the high court is entitled and
indeed, in the present circumstances, compelled to
come to the appellant’s assistance by exercising
its inherent jurisdiction to regulate its own process.
[17] A court’s inherent power to regulate its own
process is not unlimited…
[18]…
[19] Courts have exercised their inherent jurisdiction
when justice required them to do so. In this regard,
the following dictum by Botha J in Moulded
Components and Rotomoulding South Africa (Pty)
Ltd v Coucourakis and another should be noted:
“I would sound a word of caution generally
in regard to the exercise of the Court’s
inherent power to regulate procedure.
Obviously, I think, such inherent power will
not be exercised as a matter of course. The
Rules are there to regulate the practice and
procedure of the Court in general terms and
strong grounds would have to be advanced,
in my view, to persuade the Court to act
outside the powers provided for specifically
in the Rules . Its inherent power, in other
words, is something that will be exercised
sparingly. As has been said in the cases
quoted earlier, I think that the Court will
exercise an inherent jurisdiction whenever
justice requires that it should do so. I shall
not attempt a definition of the concept of
justice in this context. I shall simply say that,
as I see the position, the Court will only
come to the assistance of an applicant
outside the provisions of the Rules when
the Court can be satisfied that justice
cannot be properly done unless relief is
granted to the applicant.”” (Own emphases)
19
[25] The reason why the specifics are required is because the result of the
exercise of the court’s inherent power will be that the existing processes will
be developed not in a vacuum of this particular factual matrix only , but to be
applied generally where the peculiar circumstance, which are the specifics
referred to above, are present. The court must be convinced that strong
grounds have been advanced to persuade the court to act outside the powers
provided for in the Uniform Rules as they currently stand.
[26] If the respondent fails at the first stage the Rule 30 application must be upheld
and likewise even if the respondent is able to pass the first stage of the
enquiry but fail in the second stage the Rule 30 application must be upheld. It
is only if the respondent succeeds in both stages of the enquiry that the
applicants rule 30 application should be dismissed.
[27] What is evident from the authorities quoted is that when engaging the enquiry,
a host of factor s must be considered when called upon to invoke the court’s
inherent powers as provided for in section 173 of the Constitution. It is for the
respondent, wanting the court to invoke its inherent powers, to make out its
case to do so. Not only in its answering affidavit, as discussed above, but also
in its heads of argument the respondent argues that ‘ whilst the Honourable
Court’s inherent jurisdiction is guaranteed by Section 173 (of the Constitution),
Plaintiff [respondent in this application] does invoke that to bring this litigation
to finalisation...”
20
[28] In support hereof the respondent alleges there is a lacuna and raises a
number of factors in support of its monetary application:
[28.1] Firstly, the respondent relies on ‘The delays already incurred’ . The
applicants argue, and it is not disputed, that they have not been the
cause of any delay in prosecuti ng the action to finality. If the
respondent intended to reference the delays due to the separation
and subsequent appeal processes it does not say so but in any event
all those processes are provided for in the Uniform Rules of Court. No
evidence has been provided to suggest that those processes were
delayed in any manner. It is thus not evident on what basis the
alleged delays, had there been any, inv oke this court’s inherent
powers to develop the common law. This is further supported by the
authorities referred to above in that the court’s powers provided for in
section 173 must be sparingly exercised a nd the court cannot ignore
the existing Rules and Legislation by simply resorting to the common
law. A mere reference that the common law should be developed
does not assist the respondent.
[28.2] Secondly, the respondent relies on the averment that : ‘The present
whereabouts of MRS DREYER the Second Applicant/Defendant and
the fact that the Applicants own no immovable property in South
Africa’ is support for their argument.
21
I agree with counsel for the applicant s who argued that the
applicants’ whereabouts is wholly irrelevant to the relief sought in the
Rule 30 application. It can also not be said to be an argument in
favour of the court having to invoke its inherent powers. To develop
the common law in this respect will fall significantly short of the
requirement that the court must promote the spirit, purport and
objects of the Constitution when exercising its inherent powers. The
respondent has in any event not even attempted to make out a case
as to how this factor is relevant to the court’ s inherent powers. There
is simply no constitutional imperative averred.
Notwithstanding this, in its reply , the applicants confirmed that as a
fact the first applicant resides, and carries on business, in South
Africa. He regularly visits the second applicant in the United
Kingdom, where she resides. The applicants have a daughter, a son-
in-law and a grandchild, who reside in the UK and the decision to
settle in the UK was principally motivated by the need to be close to
the children.
[28.3] The third factor the respondent relies on is that:
“A company called SOUTH YORKSHIRE LASER (PTY)
LIMITED, Registration Number 2023/860184/07, with its
principal and registered office at 216 ALBERT AMON ROAD,
MEADOWDALE, GAUTENG appears to have a twin with
registered address in Rotherham, United Kingdom. This UK
Company is called SOUTH YORKSHIRE LASER (PTY)
LIMITED, Registration Number 14388814 *”UK Company”), and
is registered and incorporated in the UNITED KINGDOM and
22
has a connection to SABLE INTERNATIONAL, an entity which
gives emigrants financial advice and assistance with emigration
from the Republic of South Africa”.
It is unclear whether either or both of the DRYERS remain in the
REPUBLIC OF SOUTH AFRICA … the principal office of the UK
Company was changed on or about 7 October 2024 to 31
ASKHAM WAY, WAVERLEY, ROTHERHAM, ENGLAND, S60
8DG”;
The relationship between that entity, its association with SABLE
INTERNATIONAL, and the fact that the Second Applicant’s
Confirmatory Affidavit was also deposed to in ROTHERHAM, is,
in the eyes of the Respondent, a series of most suspicious
coincidences. Accordingly, the Respondent seeks the
Honourable Court’s assistance in the exercise of its inherent
jurisdiction in the interest of justice, to hear the main application
for Judgment against the Applicants notwithstanding this present
(and ill-conceived) Rule 30 application.”
The respondent in this application makes out no case as to why this
is relevant and supportive of an argument as to why the court should
invoke its inherent powers.
The absence of a registered address in South Africa is in no way a
ground to invoke the court’s inherent powers. These allegations seem
at best to be speculation of a relationship bearing no relevance to this
application. It is unrelated to the court’s processes. The latter is
relevant because the court’s inherent powers are limited in regulating
its own process.
In so far as the respondent argues that this court must hear its
monetary application there are various reasons why the court cannot
adhere to this request.
23
i. The application before me is the applicants ’ rule 30 application
and not the monetary application. The court cannot, even under
the auspices of the interest of justice, consider an application
not enrolled before it;
ii. If the applicants succeed with their rule 30 application the
monetary application will be set aside and as such this rule 30
application must first be determined;
iii. On the respondent’s own argument, the current Uniform Rules
have a lacuna and therefore called upon the court to invoke its
inherent power provided for in section 173 of the Constitution to
refuse the rule 30 application. Therefore, on its own argument
the rule 30 application must first be adjudicated upon.
iv. It is common cause that the applicants have consciously not
filed an answering affidavit to the monetary application but
elected to invoke its remedy provided for in terms of rule 30 of
the Uniform Rules of Court. Following this the applicants are , in
terms of Rule 30(2)(a), restricted from taking further steps until
resolution of the Rule 30 application. The applicants in their
application expressly state that if unsuccessful they will be
required to file an answer to the monetary application.
Therefore, to consider only the respondent’s affidavit without
24
the benefit of the applicants answer and any reply will be to
refuse the applicants their basic right to audi alteram partem.
[28.4] Fourthly the respondent relies on the averment that: ‘ The inherent
jurisdiction of this Honourable Court is to regulate its own process.
Given the current state of the trial court rolls and that trial dates are
currently being issued for 2027 and onwards, the delay does not
serve any party’s interest – and certainly not the Respondent’s.
Indeed, the matter cries out for this kind of intercession to avoid
further delays which are tantamount to abuse of the Court process.”
The respondent’s dissatisfaction with the court roll cannot form the
basis of the court exercising its inherent powers. The trial roll is an
obstacle every litigant in these court s face and the development of
the common law will have no impact on that. In essence the
respondent wishes to skip the que by introducing a non- existing
procedure. To simply ignore the existing procedures is an argument
against developing the common law rather than being in favour
thereof. What the respondent’s seek will have the further result of
impairing the applicants existing substantive rights provided for in the
current Uniform Rules of Court. The provisions of section 173 cannot
be invoked if the result of doing so would be to impair the existing
substantive rights of a litigant. The applicants argued that they stand
to be prejudiced in that:6
6 In Eke v Parsons 2016 (3) SA 37 (CC) the CC stated:
25
• They would be obliged to oppose the monetary application
where the Unform Rules do not make provision for them to do
so and in circumstances where there are still pending action
proceedings;
• By having to file opposing papers in motion proceedings the
applicants will forfeit all the procedural entitlements that they
would otherwise have on trial;
• The applicants’ section 34 constitutionally entrenched rights will
be affected.
The respondent’s answer to these averments is that it will be
prejudiced because there are no remaining triable matters. This
allegation has been vehemently denied and for the reasons s tated
cannot be considered in this application.
[28.5] Fifthly, the respondent relies on the averment : “that Rule 31(1)
(Confession), Rule 31(5) (default judgment in the absence of a plea)
“[28] This is what this court has said about the inherent power: '(T)he power
conferred on the High Courts, Supreme Court of Appeal and this court
in s 173 is not an unbounded additional instrument to limit or deny
vested or entrenched rights . The power in s 173 vests in the judiciary
the authority to uphold, to protect and to fulfil the judicial function of
administering justice in a regular, orderly and effective manner. Said
otherwise, it is the authority to prevent any possible abuse of process
and to allow a court to act effectively within its jurisdiction.”
26
or Rule 32 (Summary judgment in the absence of a bona fide
defence) cannot avail the Plaintiff in its search for speedy judgment.
The present circumstances may however be dealt with on the papers.
Following the logic set out in CHRISTIE’s correspondence of
24 June 2024, none of the “defences” raised by the Applicants remain
alive and further trial proceedings will be a waste of time and money
and a gross abuse of the court process.”
This averment has already been dealt with in that there is no basis on
which this court can make a finding on the monetary application.
There is no basis on which the common law can be developed on the
assumption that further trial proceedings, instituted by the
respondents, may be abused by the opposing party where no such
abuse has been pleaded. Notwithstanding this that it was never the
parties intention that the remaining issues were to be determined ,nor
was it determined, simultaneously with the separ ated issue. This is
evident from the following factors arising from the separation
application itself:
• Following the application for the separation of issues the
court made the following order:
“1. It is directed that the following issues (“the
separated issues”) be separated in terms of
rule 33(4) of the Uniform Rules:
1.1 Whether the loan that constitutes the
plaintiff’s cause of action (pleaded in
27
paragraphs 4, 6 and 7 of the
particulars of claim, read with
annexure “A” thereto):
1.1.1 is subject to the National Credit
Act no. 34 of 2005 (“the NCA”);
1.1.2 was at arm’s length (or not) as
contemplated in section 4 of the
NCA; and
1.1.3 accordingly, whether the loan
constitutes an unlawful
agreement as contemplated in
section 40(4) of the NCA; and
1.1.4 is for those reasons, void (“the
separated issues”).
2. It is directed that the separated issues be
determined first, with the remaining issues to
stand over for determination in due course, if
required.”
• Had the court hearing the separation application been of
the view that the determination of the separated issue will
be dispositive to all the respondents defences the
separation would have been superfluous and not been
granted. The whole purpose of rule 33(4) is to be utilised
when there is more than one triable issue and after
careful consideration the court is of the view that the
separation will be convenient.
7
7 See Economic Freedom Fighters and others v Speaker of the National Assembly and
others[2016] 1 All SA 520 (WCC)
“[20]…. A court that is asked to make a separation order should not accede to the
application unless it is able to form a clear view that it would indeed be convenient for
the issues to be separated; cf Denel (Edms) Bpk v Vorster 2004 (4) SA 481 (SCA), at
paragraph 3 [also reported at [2004] JOL 12535 (SCA) – Ed], where Nugent JA
remarked that:
28
• In the joint practice note filed in relation to separation
application it was noted by the parties that:
“7. Issues
(a) On application by Defendants, a
separation of issues was ordered by the
Honourable Acting Judge Matshitse in
April 2019 as per the attached orders.
6. Nature of relief sought
Separated issue as per Court Order
(applicability of National Credit Act).
(c) All other issues, as per the pleadings,
stand over until the separated issues
have been determined.”
It is evident from aforementioned that the parties
acknowledged that there were issues remaining which
would stand over for later determination.
• The SCA only considered the separated issue which is
evident from its judgment where it confirmed that:
“[14] There are two issues which arise in this
appeal. The first concerns whether the order
“even where the issues are discrete, the expeditious disposal of the litigation
is often best served by ventilating all the issues at one hearing, particularly
where there is more than one issue that might be readily dispositive of the
matter. It is only after careful thought has been given to the anticipated
course of the litigation as a whole that it will be possible properly to determine
whether it is convenient to try an issue separately”.” (Emphases added)
29
granted by the trial court is appealable. The
second concerns the application of the NCA
[the separated issue] . This latter question
relates to whether the transaction was
concluded at arm’s length and whether it
constitutes a credit agreement as defined by
the NCA.”
• The action is still pending and very much alive. It begs
the question, without answering it, why if the respondent
is so confident that all the issues have been resolved it
does not withdraw the action. The only inference is that
the respondent wishes to keep that avenue open if they
were to be unsuccessful with the monetary application,
which, if anything, does support the argument that the
respondent itself still has some reservation whether or not
all triable issues have in fact been properly ventilated.
[28.6] Lastly, the respondent relies on the averment that the award of
interest “will not cure the lapse of time, especially if the judgment is
hollow due to the movements of the Defendants and the apparent
dissipation of their assets.”
These averments do not justify an argument that because the
respondents may not recover the total debt due that a lacuna exists in
the current existing processes. This is even more so considering that
the delays are partly attributable to the respondent itself. Firstly, the
respondent took almost three years to institute the action. Secondly,
the applicants in their reply alleged that the respondents had taken no
30
steps since the finalisation of the appeals on the separated issues, no
request to enrol matter and no pre - trial requests have been made.
The allegations were again raised in argument and counsel for the
respondent’s indicated that an application for a trial date has been
submitted, but it is not evident when this was done and whether any
subsequent steps had been taken if there was a delay in a response
to the request.
The respondent wishes to be treated differently to all other litigants
who are diligently awaiting their turn on the trial roll while complying
with the existing rules and legislation by applying for judgment on
motion while an action is still pending.
[29] It is thus clear that none of the factors on its own or combined remotely
support an argument that the court should invoke its inherent powers provided
for in section 173 of the Constitution.
[30] The respondent has not in any way advanced grounds in which specific
manner the common law should be developed, nor what aspect thereof is
required to be developed. It appears that the respondent is of the view that
the court is entitled and indeed, compelled to come to its assistance by
exercising its inherent jurisdiction to regulate its own process but without
making out a case for it.
31
[31] Clear from the authorities is that the court’s inherent power to regulate its own
process is not unlimited. As such t he court must be convinced that strong
grounds have been advanced to persuade the Court to act outside the powers
provided for in the Uniform Rules as they currently stand and as is evident
from the above none let alone strong grounds have been advanced. There is
thus no argument supporting the need that the common law must be
developed beyond current precedent and as such that it is the end of the
enquiry.
[32] Therefore, the applicants application must succeed.
COSTS
[33] There is no reason why the established principle that costs must follow the
result should not find application in this instance. I do however agree with the
respondent’s submissions that costs for two counsel is not justified in this
instance . Both parties agreed that scale C is the appropriate scale to be
applied.
Therefore, the following order is made :
ORDER
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1. The respondent’s application for judgment (Common Law) is set aside as
an irregular step in terms of the provisions of Rule 30 of the Uniform rules
of Court;
2. The respondent shall pay the costs of this application, including the costs
of counsel on scale C.
ACTING JUDGE OF THE HIGH COURT
JOHANNESBURG
For the Applicant : Adv A J Daniels SC
Adv C de Villiers-Golding
For the Respondent Adv CD Roux