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IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION, GQEBERHA)
NOT REPORTABLE
CASE NO: 2439/2023
In the matter between:
WILLIAM CLAUDUIS VAN HEERDEN FIRST APPLICANT
CORNELIUS WILLEM VAN HEERDEN SECOND APPLICANT
and
ELAINE VAN TONDER RESPONDENT
JUDGMENT
Noncembu J
[1] This is an opposed application for the upliftment of bar. The applicants
(defendants in the main action), after being served with summons on 27 July 2023,
delivered their notice of intention to defend on 1 September 2023. They failed to file
their plea within the requisite time period and were served with a notice of bar on 3
October 2023. After failing to comply with the said notice, they were ipso facto
barred from pleading with effect from 11 October 2023.
[2] They seek the leave of this court to have t he bar uplifted, stating that they
were not in wilful default in failing to file their plea timeously, and that they have a
bona fide defence to the action instituted against them by the respondent. The
application is opposed by the respondent.
[3] By way of a background, the following facts are apposite. The respondent
(plaintiff in the main action) instituted action proceedings against the applicants,
where she sought payment of an amount of R 1 350 874.23, together with an order
that a property jointly owned by the parties in terms of an oral agreement entered
into in January 2008, be declared executable in terms of Rule 46 and 46A of the
Uniform Rules of Court.
[4] The terms of the agreement, as pleaded in the particulars of claim, are that
the partie s were co -owners of a property situated at 1 […] E[...] Road,
Weybridgepark, Gqeberha. The applicants would complete the front house of the
said property professionally, with the respondent providing funding for that purpose,
which would be repaid to the resp ondent. The agreement further provided that the
parties would jointly make payments towards the Bond of the property held with
ABSA, as well as services and rates. The further terms were that the property would
be rented out (the front and the back parts), with the rental payments going towards
the bond payments and maintenance of the property.
[5] The further pleadings state that the applicants failed to make payments in
terms of the aforesaid agreement, and that the respondent is claiming the
aforementioned amount, which she paid towards the ABSA bond and the upkeep
and maintenance of the property. The said action having been predicated by her
receiving a letter of demand from ABSA bank for arrears incurred on the bond
account.
[6] It is common cause that the notice of bar was served on the applicants on the
aforementioned date. The applicants contend, however, that the reason why they
did not file their plea was because of an arrangement that they had with the
respondent to pend or suspend the litigation while the parties engaged in settlement
negotiations.
[7] While it is not in dispute that there were settlement negotiations which took
place between the parties, the respondent’s case is that the applicants were ipso
facto barred already when the negotiations commenced.
[8] From the facts presented in the matte r, it is, in my view, indisputable that at
the time of commencement of the negotiations, the applicants were already ipso
facto barred from pleading. This notwithstanding, however, they were
accommodated by the respondent in that the litigation was held ba ck whilst
negotiations were ongoing, which negotiations commenced on 25 October 2023 and
apparently failed in August 2024.
[9] The applicants’ version is that their attorney of record withdrew on 11 October
2024, at which point they decided not to appoi nt new attorneys, as an oral
agreement had been entered into with the respondent to try and resolve the matter
in person in order to save on legal costs. The latter agreement is disputed by the
respondent.
[10] The applicants contend thus that they were n ot in wilful default in failing to file
their plea as they had always intended to defend the matter. Their argument is that
the failure to file a plea was due to the fact that settlement negotiations were
underway between the parties.
[11] The latter arg ument is clearly without merit if one considers that they were
already placed in bar when the settlement negotiations commenced. However, I
take the view that their non -compliance with the rules in this regard was condoned
by the respondent when their requ est to pend the litigation at that stage pending
settlement negotiations was granted.
[12] The respondent’s counsel produced a letter, with the leave of this court, which
he sought to rely on for the submission that the agreement at that stage was that the
default judgment proceedings were to resume in the event of the settlement
negotiations failing. The contents of the said letter are important in order to put the
matter in its proper context. They read as follows:
‘Dear Sir
We do indeed acknowledge the Notice of Bar stands.
The request to hold off on an application for default judgment is in no way intended to
prejudice your client’s rights. It stems merely from a practical standpoint in that we wish to
avoid incurring the unnecessary legal cost of a condonation application at this stage given
that the matter may become finalized through settlement. Should settlement fail, which we
are hopeful will not be the case, litigation can proceed, and naturally, all of the parties' rights
in relation to such litigation remain reserved.
We have engaged our clients in relation to availability and will revert as soon as practically
possible.
Kind regards,’
[13] The letter in question, signed by the applicants’ attorneys of record at the
time, clearly indica tes that the applicants were aware that the lodgement of an
application for a default judgment was on the cards at the time, but requested that
this be held off for the time being, pending the settlement negotiations. What stands
out from the said letter, however, is that already at that stage, a condonation
application was contemplated by the applicants, but they resolved to put it on hold in
the hope that the matter would be resolved, and thus save them unnecessary legal
costs for the condonation application.
[14] It can therefore not be argued, on any interpretation of the said letter, that the
applicants, or their attorney of record at the time, had stated that judgment by
default could be obtained if the settlement negotiations failed. This is furthe r
affirmed by the proviso in the letter, which reads, after the statement ‘litigation can
proceed’: ‘naturally all of the parties' rights in relation to such litigation remain
reserved’. (emphasis intended)
[15] If anything, the letter seems to affirm the applicant’s contention that they
always intended to defend the action.
[16] With regard to the requirement of a bona fide defence to the claim, the
applicants contend that part of their defence to the action is that the relief sought by
the respondent is incompetent, both in respect of the money claimed (as the claim
does not amount to specific performance) as well as the order of executability of the
property in terms of Rule 46A, given that the property in question is bonded to ABSA
bank, which bank has not been included as a party to the action.
[17] In addition to the above, there is a clear dispute between the parties with
regard to the terms of the oral agreement entered into, which forms the subject
matter of the action proceedings instituted.
[18] For an applicant to succeed in an application for the upliftment of bar, they
need to satisfy the court that there is good cause for the application to be granted. In
A.M v S. M.M.1 this requirement was stated as follows:
‘. . . In trying to demonstrate good cause there are two requirements, first, the defendant
must put forward a satisfactory explanation for the delay. It was held in this regard that the
defendant must at least furn ish an explanation in full for his default comprehensively, such
1 A.M. v S. M.M (45707/2021) [2023] ZAGP JHC 965 (25 August 2023) para 13.
that the court should be able to determine his motives. Secondly, the defendant must show
he has a bona fide defence. This was confirmed by the SCA in Ingosstrakh v Global
Aviation Investments (Pty) Ltd and Others, where it was held that “Generally, the concept of
‘good cause’ entails a consideration of the following factors: a reasonable and acceptable
explanation for the default; A demonstration that a party is acting bona fide; and that suc h
party has a bona fide defence which prima facie has some prospect of success. Good
cause requires a full explanation of the default so that the court may assess the
explanation.’
[19] In Madinda v Minister of Safety and Security, Republic of South Afric a.2 the
following was stated:
‘Good cause’ looks at all those factors which bear on the fairness of granting the relief as
between the parties and is affecting the proper administration of justice. In any given
factual complex, it may be that only some of many such possible factors becom e relevant.
These may include prospects of success in the proposed action, the reasons for the delay,
the sufficiency of the explanation offered, the bona fides of the applicant, and any
contribution by other persons or parties to the delay and the applica nt’s responsibility
therefore.’
[20] On the facts presented by the applicants in the present matter, I am satisfied
that good cause has been established. While there can be no question that the
applicants failed to file their plea in the requisite time, and as such were barred from
pleading, in my view, the delay was condoned by the respondent when the request
for the suspension of litigation in order to pursue settlement negotiations was
2 Madinda v Minister of Safety and Security, Republic of South Africa [2008] 3 All SA 143 (SCA); 2008 (4) SA 312
(SCA).
granted. From thereon, the explanation for the delay in the papers is that the parties
(or at least their legal representatives) were engaged in settlement negotiations.
[21] Whilst it cannot be gainsaid that the applicants brought the current application
only after they were served with the default judgment papers, one cannot lose sight
of the fact that they were without legal representation at the said time, and on their
version, had agreed with the respondent to engage in further settlement negotiations
in person. Given that their initial request to suspend litigation pending the settlement
negotiations in the matter was granted, one would have expected that, following the
said negotiations becoming unsuccessful, a notice or at least a letter would have
been sent to them, advising them that the suspension was now lifte d and that
litigation was to recommence. This is more so, given that the applicants were
unrepresented at the time.
[22] The applicants have shown that they have a bona fide defence to the action
which prima facie has prospects of success. They have given an explanation for the
delay, which, for the most part, was due to settlement negotiations that were
sanctioned by the respondent. They have demonstrated that they were not in wilful
default of filing their plea and that they had always intended to defend the action.
Furthermore, and perhaps most significantly, the prejudice they stand to suffer
should the application not be granted far outweighs that which would be suffered by
the respondent if the application is granted. The door to having the dispute i n
question resolved by a court of law would be permanently closed for them, while any
prejudice to be suffered by the respondent can be remedied by an appropriate cost
order.
[23] I am therefore satisfied that the applicants have established good cause fo r
the relief they seek.
[24] On the question of costs, the general principle is that a party seeking an
indulgence should bear the costs of the application. Furthermore, it is clear from the
evidence that the applicants adopted a lackadaisical attitude in their conduct of
proceedings in this matter. This is evidenced by the fact that they were already out of
time and, therefore, ipso facto barred when the request for settlement negotiations
was presented to the respondent. It can therefore not be argued that the respondent
was unreason able in opposing the application. The applicants, thus, should be
mulcted with the entire costs of the application.
[25] In the result, the following order is made:
(a) The bar is uplifted.
(b) The applicants must file their plea and/ or any subsequent pleading
within 15 days of this order.
(c) The applicants must pay the respondent’s wasted costs in the default
judgment application.
(d) The applicants must pay the costs of this application, under scale B of
Rule 67A of the Uniform Rules of Court.
______________________
V P NONCEMBU
JUDGE OF THE HIGH COURT
APPEARANCES
Counsel for the Applicants (Defendant): I Lambrechts
Instructed by: RDL Attorneys
Gqeberha
Counsel for the Respondent: S Snail KaMtuze
Instructed by: Snail Attorneys @ Law Inc
C/O Boqwana Burns Inc
Gqeberha
Date of hearing: 11 September 2025
Date judgment delivered: 16 September 2025