REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
DELETE WHICHEVER IS NOT APPLICABL E
(1) REPORTABLE: NO
(2) OF INTERES T TO OTHERS U
(3) REVISED
91},41~ ....
In the matter between:
QUENTIN PEDLAR
And
SANTAM LIMITED
Case number: 010346/2022
Applicant / Defendant
Respondent/Plaintiff
This matter was heard in open court and the judgment was prepared and authored by the
judge whose name is reflected herein and is handed down electronically by circulation to the
parties' legal representatives by ema!I and uploading it to the electronic file of this matter on
Caseline. The date for hand-down is deemed to be the Olst October 2025
JUDGEMENT
1
LEDWABA AJ
Introduction
[1] By way of the notice dated the 17th September 2024 and in terms of Rule 28 of
the Uniform Rules (the Rules), the applicant is praying for the amendment of its
plea in accordance with the notice of intention to amend dated the 15th August
2024.
[2] The plea was delivered following the court order dated the 20th April 2023 uplifting
the bar
[3] The intention to amend notice dated the 15th August 2024 is silent about
conditional condonation application. Paragraph 2 of application for leave to
amend states that as far as condonation is required in respect of prayer 1, such
condonation be granted. Save for repeating what is stated in paragraph 2 of the
application for leave to amend as stated in paragraph 1.5.2 of the founding
affidavit, the founding affidavit say nothing additional about the basis of
condonation application.
[4] The essence of the application is to delete and replace the entire plea, in
particular the first, second and third special pleas.
[5] The founding affidavit to support the amendment application and the replying
affidavit to the answering affidavits were deposed to by the applicant's attorney.
2
It indicates that on the instruction of The Whistleblower House, the applicant's
attorneys were appointed on the 24th July 2024 and that until then, the applicant
appeared in person. The applicant's previous attorneys withdrew per notice
dated the 28th September 2022 from which period the applicant acted in person.
This means that the applicant appeared in person between the 28th September
2022 and the 24th July 2024.
[6] The founding affidavit states that counsel appointed to represent the applicant
appeared the next day of appointment on the 25th July 2024 when the exception
application delivered on behalf of the respondent was heard. It says the judgment
was reserved until it was delivered on the 31st July 2024, upholding the
exception.
[7] The amendment notice follows the exception order granted against the
applicant's plea, which was upheld on the 31 st July 2024.
[8] The exception order gave the applicant ten days to deliver an amended plea,
failing which the first special plea was dismissed. The second and third special
pleas were dismissed with immediate effect from the 31st July 2024
[9] The founding affidavit says that on the 28th August 2024 the responded delivered
objection to amendment.
[1 0] The founding affidavit attached as annexures CLR 5 and 6 correspondences
between the parties regarding their respective interpretation of judgment order
relating to special pleas. They differed whether the dismissal of the special pleas
3
meant that the applicant could not amend them.
[11] The parties having differed about the interpretation of the orders, the respondent
proceeded to deliver the objection notice.
[12] The objection notice was followed by the answer to proposed amendment plea
delivered on the 9th October 2024. The objection notice make contention to the
effect that : :
(a) The proposed amendment to be effected by the insertion of a
counterclaim failed to comply with Rule 24(1), would be exipiable and is
an irregular step
(b) The proposed amendment to be effected by the insertion of special pleas
would be excipiable on the basis that they are vague and embarrassing
and they lack averments which are necessary to sustain defence.
[13] The applicant delivered the replying affidavit dated the 23rd October 20024.
[14] The applicant further prays for the counterclaim. The respondent pleads that
because this counterclaim was not delivered with the plea, it contravenes Rule
24(1) of the Rules, which requires the applicant to obtain the respondent's
agreement or leave of the court before pleading counterclaim.
Respondent's answering affidavit.
4
[15] The respondent's answering affidavit states that the main action between the
parties came about as a result of the contractual claim resulting from the alleged
breach of a settlement agreement which brought an end to the employment
relationship between the parties.
[16] It says the respondent excepted to the three pleas delivered by the applicant.
The basis of the exception was that they were vague and embarrassing,
alternatively lacked the necessary averments to establish a defence.
[17] The exception hearing application set down for the 24th July 2024 was adjourned
to the following day to enable the applicant's new attorneys to be placed on
record and the counsel to be read to appear on behalf of the applicant.
[18] The applicant's new attorneys came on record and the briefed counsel appeared
for the applicant on the 25th July 2024.
[19] The exception to the first special plea was upheld, with the applicant afforded ten
days from the date of the order to deliver an amended first special plea, failing
which the special plea would be dismissed. The applicant had until the 15th
August 2024 to amend the first special plea, falling which it would be dismissed.
[20] The exception to the second and third special pleas were upheld. The pleas were
dismissed.
[21] Instead of amending the special pleas, the applicant delivered a notice of
intention to amend his plea by way of the notice dated the 15gh August 2024, to
5
replace the plea in its entirety and introduced a counterclaim for the first time.
[22] Following the exchange of correspondence per annexures CLR 5 and 6 and
when the applicant rejected the suggestion to w ithdraw the amendment notice,
the respondent delivered the objection notice.
[23] The applicant's former attorneys of record filed his notice of intention to defend
on the 17th August 2022. They withdrew as the applicant's attorneys on the 28th
September 2022 from which date the applicant acted in person
[24] Acting in person, the applicant pleaded twice. The fist plea was delivered on the
25th October 2022. It was set aside as an irregular step on the 20th April 2023.
[25] The second plea was delivered on the 14th November 2025. The respondent
excepted to this plea. The applicant is seeking to amend this plea.
Analysis
[26] In the ma in matter, the respondent relies on the settlement agreement entered
into when the parties were still in the employment relationship.
[27] In the ma in, the parties agreed that the applicant would take voluntarily early
retirement effective from the 31st January 2022 with charges against the
applicant being withdrawn.
[28] The respondent contends that the applicant undertook not to make any written
6
or oral statements injurious to, or of a disparaging nature about the respondent,
any company in the respondent's group and or any of the respondent's directors,
employees and or business associates.
[29] The respondent contends that the applicant breached the terms of the
agreement, hence the main action to claim damages.
[30] The applicant contends that the agreement was entered under duress and
denies that the respondent is entitled to damages claim.
[31] Having delivered his pleas, the applicant is seeking to amend them.
[32] The ten days period to deliver the amended first special plea lapsed on the 14th
August 2024
[33] The notice to amend is dated the 15th August 2024.
[34] The primary objective of amendment is to obtain a proper ventilation of the
dispute between the parties, to determine the real issues between the parties,
so that justice may be done. Amendment should not be refused where this will
frustrate the determination of the true dispute between the parties.1
1 Singh & Another v Ebrahim (201 0) ZASCA 145 • par 141
7
[35] The practical rule adopted seems to be that amendment will always be allowed
unless the application to amend is mala-fide or unless such amendment would
cause an injustice to the other side which cannot be compensated by costs, or
in other words unless the parties cannot be put back for the purpose of justice
in the same position as they were when the pleadings which it is sought to amend
was filed.2
[36] The amendment of the pleadings is allowed even if it means amendments to the
cause of action, provided they are to be read in the alternative, there is no
prescription as long as the aspect of prejudice is addressed.3
[37] A court hearing amendment application has a discretion whether or not to grant
it, which discretion must be exercised judicially. The primary object of allowing
an amendment is to obtain a proper ventilation of the disputes between the
parties, so that justice can be done. The practical rule is that an amendment will
not be allowed if the application to amend is made mala fide or if the amendment
will cause the other party such prejudice or injustice as cannot be cured by an
order of costs and, where appropriate, a postponement.4
2 Affordable Medicine Trust v Minister of Health 2006(3) SA 247( CC) - par 19
3 De Kock v Middlehoven (2017) ZAGPPHC 1189; 2018(3) SA 180(GP)
4 Macteel Tube and Pipe, a division of Macsteel Service Centers SA (Pty) Ltd v Vowles Properties (Pty) Ltd (2021) ZASCA
178-par 24
8
[38] The onus is on the party seeking an amendment to establish that the other party
will not be prejudiced by the amendment. 5
[39] The pleas sought to be amended was delivered during the period the applicant
was acting in person.
[40] The exception order gave the applicant ten days to deliver an amended plea,
failing which the first special plea is dismissed. The second and third special
pleas were dismissed with immediate effect from the 3pt July 2024. This means
that while the second and third special pleas were dismissed with immediate
effect, the applicant was given ten days to amend the first special plea, which
period has since lapsed.
[41] The parties also differ whether the orders dismissing the three special pleas
meant that they cannot be amended.
[42] The respondent contend that the court order granted the applicant ten days within
which to amend the first special plea and that the ten days lapsed around the
14th August 2024, beyond which date this plea could not be amended.
[43] The applicant contends that the ten days' period is the period during which the
s Krischke v Road Accident Fund 2004(4) SA 358(W) at 363 B: Free State Wheels (Pty)Ltd v WRC Rentals (Pty) Ltd & Others
(2024) ZAFSHC 87 par 19
9
amendment process must started with the delivery of the notice of intention to
amend.
[44] The judgment deliberately distinguished the first special plea on the one hand
and the second and third special pleas on the other hand.
[45] With regard to the first special plea, having noted that this was an attempt by a
lay man to plead relatively complicated legal issues, the court stated that the
applicant should be afforded the opportunity to amend the first special plea.6 The
court then gave the applicant ten days to deliver the amended first special plea,
if so advised.
[46] The applicant incorrectly contends that the judgment required it to deliver notice
of intention to amend the first special plea within ten days of the court order.7 •
[47] Order 48.2 expressly states that the applicant was afforded ten days from the
date of the order to deliver an amended special plea, failing which the first
special plea is dismissed. Rule 1 of the Uniform Rule defines deliver as meaning
to serve copies on the parties and file the original with the registrar.
[48) Notifying the parties of intention to amend and furnishing particulars of the
amendment referred to in Rule 28(1) of the Uniform Rules is different from
effecting an amendment within ten days after court authorisation referred to in
Rule 28(6) of the Uniform Rules. In terms of 28(7) of the Uniform Rules a party
6 Paragraph 30 of the judgment.
7 Paragraph 10.3 of the founding affidavit.
10
entitled to amend is required to effect the amendment by delivering each relevant
page in its amended form. The court order did not intend to curb the period of
delivering notice of intention to amend, but the period of the emended special
plea as envisaged in Rule 28(6) read with Rule 28(7) of the Uniform Rules.
[49] The applicant did not comply with order 48.2 , with the result the first special plea
si dismissed.
[50] With regard to the second and third special pleas, the court stated that there was
no indication that they could be amended or that the applicant intended to try
such route. It then stated that it was unnecessary to grant the applicant the
opportunity to amend them and that both had to be dismissed.8 The court then
dismissed both of them.
[51] The applicant's intention to amend states the intention to delete and replace all
the special pleas.
[52] The respondent correctly contends that once dismissed, special pleas could not
be deleted to be replaced. They became nonexistence once dismissed and could
not subsequently be deleted.
[53] The applicant's contention that the amendments deal with different causes of
action does not assist its case. Different causes of action would not need deletion
and replacement of the second and third special pleas to be introduced as new
causes of action. New causes of action can stand on their own without being
8 Paragraph 43 of the judgement.
11
related to the deletion of the second and third pleas.
[54] The judgment and order of the 31st July 2024 is the judgment referred to in
section 165(5) of the Constitution. In terms of section 165(5) of the Constitution,
an order or decision binds all persons to whom it applies, whether correctly or
incorrectly granted and must be obeyed unless it is properly set aside.9
[55] The applicant further prays for the counterclaim. The parties differ whether the
counterclaim constitute an irregular step. The respondent pleads that because
this counterclaim was not delivered together with the plea, Rule 24(1) of the
Rules requires the applicant to obtain the respondent's agreement or leave of
the court before pleading counterclaim. It contends that absent agreement or
court order, and having regard to the provisions of Rule 18(4) the counterclaim
constitute irregular step, lacks the averment necessary to sustain the cause of
action and is vague and embarrassing
[56] I understand the applicant's reply to be that the counterclaim was introduced with
the plea by the applicant while he was still acting in person. It contends that being
the layperson person, the applicant cannot be expected to introduce the
counterclaim with the plea strictly in compliance with Rule 24(1) of the Rules. On
behalf of the applicant, it is contended that the applicant always had an intention
to deliver the counterclaim with the plea. It is also contended that this objection
was mentioned in their correspondences contained in annexures CLR 5 and 6
and that in the event of the finding that there was a need for the respondent's
agreement, the applicant submits that this court should use its discretion to
s Secretary of Commission of Inquiry into Allegation of State Capture Co rruption and Fraud in the Public Service including
Organs of State v Zuma (2021) ZACC 18;2021 (5) SA 327(CC); 2021(9) -par 59-62 and -87
12
include the counterclaim as part of the applicants pleadings.
[57] The parties refer to paragraph 41 of the judgment of the 31st July 2024. The
applicant contends that the judgment recognised the counterclaim and advised
that it should be introduced by way of a claim in reconvention. The respondent
points out that the judgment made it plain that the counterclaim should be
introduced after compliance with Rule 24(1)
[58] The applicant further contends that in the event of the finding that the
counterclaim needs to be inserted by way of new and separate application, that
could result in the separate process with the delay and unnecessary costs.
[59] I agree with the applicant's contention the intention to counterclaim was always
there and that this was indicated in the applicant's plea. I also agreed that in the
event I am wrong to find that as lay person, the applicant has always indicated
the intention to include the counterclaim and did in fact include it, the
counterclaim should be included at the discretion of this court. The amendment
to insert the counterclaim is granted.
[60] The respondent does not allege any prejudice with the inclusion of the
counterclaim. I could not find any.
[61] With regard to condonation, apart from what is stated in paragraph 3 of his
judgment, nothing further is said.
[62] Rule 28(10) authorises the court to grant leave to amend at any stage before the
13
judgment is granted. Understandably the application itself must be done within
the reason period.
[63] Condonation applicant is required to furnish a reasonable explanation for the
delay and that the applicant seeking condonation for non -compliance with set
out time frames must give complete account for each period of delay.10
[64] No basis has been provided to deal with this condonation application.
[65] Both parties have achieved substantial success in this application for one party
to bear the costs of the other party.
Order
[66] Leave to amend is granted, save the amendment of the first, second and third
special pleas.
[67The amendment to insert the counterclaim is granted.
[68] The applicant is granted leave to amend its particulars of claim in accordance
with paragraph 66 and 67 above;
[69] The applicant is authorized to serve and file the amended pages of plea within
ten days of the date of this order;
10 NUMSA & Another v Hillside Aluminium (2005) 6 BLLR 601 (LC); Nehawu obo Netshivubgululu par 8, Makhubela v S
(2017) ZACC 36; 2017(S) SACR 665(CC); 2017(12) BCLR 1510-par 21
14
[70] The respondent may serve and file consequential adjustment referred to in Rule
28(8) of the Un iform Ru le, if any
[71] There is no order as to costs.
APPEARANCES:
For applicant: Adv LO lsparta
ACTING JUDGE OF THE HIGH COURT
GAUTENG DIVISION: PRETORIA
Date of hearing: 31 July 2025
Date of judgment: 01 October 2025
Attorneys for the applicant: Tintingers Inc Attorneys
Counsels for respondents: Adv J Berger
Attorneys for the respondent: Werksmans
15