IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
JUDGMENT
Case no: 788/2019
In the matter between:
AFGRI VEEVOERE ‘n DIVISIE VAN
AFGRI (PTY) LTD
PLAINTIFF
and
ALETTA JOHANNA KOTZE DEFENDANT
Neutral citation: Agri Veevoere ‘n Divisie van Afgri (Pty) Ltd and Aletta
Johanna Kotze (Case no 788/2019) [2025] ZAWCHC … (24-
10-2025)
Coram: PATHER S AJ
Heard: 23 October 2025
Delivered: 24 October 2025
Summary: Claim for payment pursuant to a suretyship - matter set down for trial -
defendant raised special plea on prescription - no set down of special plea- no
appearance at trial by defendant or defendant’s representative -default judgement
granted-attorneys disregard for Plaintiff and the Court.
ORDER
1 The Defendant is ordered to pay the Plaintiff the sum of R5 515 796.43
(Five Million Five Hundred and Fifteen Thousand, Seven Hundred and
Ninety-Six Rand and Forty-Three Cents).
2 The Defendant shall pay interest , a tempore mora on the aforesaid
amount at the prevailing rate of interest, as determined from time to time,
in terms of the Prescribed Rate of Interest Act, 55 of 1975, as amended.
3 The Defendant is directed to pay the Plaintiff’s taxed or agreed party and
party costs on the High Court scale, in accordance with Rule 70 of the
High Court Rules, subject to the discretion of the taxing master, w ith
costs of counsel to be taxed on Scale B;
__________________________________________________________________
JUDGMENT
PATHER, AJ
[1] This case once again demonstrates how parties and their legal
representatives can take deliberate actions to obstruct and delay legal proceedings,
ultimately hindering the Plaintiff's ability to pursue their case effectively.
[2] The matter involves the Defendant executing a suretyship in favour of OK
Kloof Plase CC (In Liquidation) on 14 December 2014.
[3] The Plaintiff issued summons, and served it on the Defendant on 29 January
2019, pursuant to the payment received from the liquidator in reduction of the
amount due by the principal debtor.
[4] The Defendant delivered her Plea through her first legal representatives, Peet
Hugo Attorneys , on 6 February 2020, just over a year after the summons was
served. She raised a Special Plea of prescription. Defendant further pleaded over
on the merits denying that she understood the document to be a suretyship
agreement, that the nature of the suretyship was not explained to her, that she never
consented to being a surety and that had she known, she would not have concluded
and signed the suretyship agreement.
[5] The Applicant had initiated summary judgement proceedings against the
Defendant prior to the Plea . However, the parties agreed to take a consent order
that summary judgement be refused, and the Defendant be granted leave to defend
the matter. This Order was granted on 19 March 2019.
[6] The Plaintiff delivered a Notice of Bar on July 9, 2019, while the Defendant
failed to deliver a Plea. The Plaintiff obtained a default judgement against the
Plaintiff on 28 August 2019, as the Plea had not yet been delivered. That Order for
Default Judgement was set aside on 21 January 2020. The Defendant subsequently
appoints a new attorney to represent her, and Notice was filed on 14 August 2020.
[7] Defendant failed to comply with the delivery of her discovery affidavit and
an application to compel discovery was brought by the Plaintiff . On Apri l 19,
2022, an order was issued in favour of the Plaintiff's requested relief.
[8] The Defendant’s second attorney on record withdraws and new
representation is on record by Visser and Partners Inc. This is the same firm that
remains on record.
[9] The matter was declared trial ready and the set down of the matter was
delivered to both attorneys via email on 10 December 2024.
[10] The Defendant failed to respond to the Plaintiff's Request for Further
Particulars that was delivered on 17 September 2025.
[11] Representatives of both parties signed a Rule 37 Minute on 31 May 2024.
The matter was dealt with by Lekhuleni J, to whom it was presented for a pre-trial.
The parties were directed to file a pre -trial minute, and the matter was again
postponed for pre-trial to 31 October 2024.
[12] On 24 October 2024, the Plaintiff delivered a practice note to this Court
confirming that the parties had complied with the Rule 37 formalities and directed
the Court to the Pre-trial minute that had been filed. On 12 November 2024, Willie
J certified the matter to be trial ready pursuant to the pretrial that he dealt with on
31 October 2024.
[13] I noticed that this matter was set down for trial on 23 and 27 October. I was
available to deal with the matter consecutively on 23 and 24 October and requested
my registrar address a letter to both party’s representatives, to enquire whether f
they were amenable to this. A follow up email was sent by my registrar on 17
October 2025. There was no response from the Defendant’s representative to either
of the emails. The Plaintiff’s representative responded on 20 October 2025
confirming their acceptance of this suggestion. My registrar addressed further
emails to the Defendant’s representative and both emails were not acknowledged.
On 21 October 2025, my registrar contacted the Defendant's attorney's firm and
was informed that the attorney handling the case was unavailable but would be
reminded to respond to the email. On 22 October 2025, the Defendant’s
representative contacted my r egistrar and informed her that the attorney that was
dealing with the matter was no longer with the firm and that he was in prison, and
that there were issues with representation for the trial . My registrar requested that
the Defendant’s representative deal with the further conduct of this matter with the
Plaintiff’s representative. No further communication was received and the court
prepared for the trial.
[14] I read the pleadings, the practice note and the notices filed on record.
[15] The Court was ready to c ommence with the trial , however, neither the
Defendant nor her representative was present at court. The Plaintiff’s Counsel
addressed the Court and informed the court that the Partys ‘representatives had
exchanged emails during the afternoon of the day be fore. The court was given a
bundle of documents under cover of an affidavit deposed to by the Plaintiff’s
attorney.
[16] The affidavit handed up to court set out a chronology of the events leading
up to the date of the trial and the email exchange between th e parties on
Wednesday, 22 October 2025. The Defendant’s attorney was allegedly in hospital,
and he addressed responses to the Plaintiff’s attorney allegedly from hospital.
[17] The Plaintiff’s counsel addressed the Court and stated that this was dilatory
conduct by the Defendant. There was no application for a postponement.
[18] The Court found that the Defendant and his representative had shown no
good reason why they were not at court. The Defendant’s representative could
have and in fact should have taken ev ery possible measure to ensure that his client
was represented at court. The Defendant’s representative did not brief counsel, nor
did he arrange for any person from his office or a colleague to address the court.
His behaviour demonstrated complete disre spect for the court and he seemed to
believe that the granting of a postponement due to him being in hospital if this
were to be true was a foregone conclusion.
[19] From the affidavit and bundle handed in by the Plaintiff’s counsel, it is clear
that the Defendant’s representative had no intention of making any arrangement
regarding the conduct of this matter.
[20] The excuses and explanation tendered by the attorney for the defendant is
not acceptable. The De fendant’s attorney alluded in correspondence contained in
the bundle that his client was aware that the matter was set down for 28 October
2025. This indicated that the Defendant herself did not take steps to ascertain what
was happening in her matter.
[21] The Defendant’s attorney seems to be in charge of the firm. The fact that an
attorney who was employed by him has left his employ does not absolve the firm
and the said attorney from their responsibilities to clients and the court. Mr Visser
ought to have ensured that this matter was receiving attention.
[22] Mr. Visser's failure to make appropriate representations to the court is
additionally reprehensible. Mr Visser did not even ensure that the Defendant was
present in court. A n attorney is reasonably expected to have at least requested his
client to attend court. Mr Visser, in his email to the Plaintiff’s representative on 22
October 2025, states that he contacted the defendant the day before (21 October
2025), and she thought the matter was in court o n 28 October 2025. This court
finds it troubling that neither the attorney nor the defendant took any action on this
matter. This was the day before Mr Visser’s alleged hospitalisation. Mr Visser was
content to leave the matter in the hands of the court, as his email suggests.
[23] This court cannot accept that the unavailability of the defendant and her
attorney should impact adversely on the Plaintiff. The Plaintiff has been seized
with this matter for 6 years. Numerous delays have occurred, primarily
attributable to the Defendant.
[24] The Court has also had regard to the Defendant’s Plea, and it is satisfied that
the defence raised will not succeed. The defendant did nothing after her special
plea was raised and if she believed in the defence, one would ha ve expected this to
have been set down for a determination of the special plea. This was also not
raised in the pre -trial proceedings between the parties or at the pre -trial dealt with
by Judge Wille.
[25] It is in the interests of justice for the Plaintiff to have this matter finalised.
The Plaintiff has done everything it could to prosecute this matter and there exist
no justifiable excuse for the Defendant or her representatives to have been absent
from court proceedings.
[26] The Court believes that in this matter a punitive cost order against the
defendant’s attorney seemed justified , however, since the Plaintiff did not request
this, the court finds no need to make such an order.
[27] Attorneys are to be cautioned about encouraging litigants to de lay matters.
They must at all times acknowledge that they are officers of the court. This
process is expensive and emotionally taxing for the parties involved. It is therefore
unacceptable to remain uninformed of matters and neglect it to the detriment of the
opposing party.
[28] In this matter and on weighing the prejudice, the court finds that the
prejudice to the Plaintiff outweighs the prejudice to the Defendant.
_____________________________
PATHER AJ
JUDGE OF THE HIGH COURT
Appearances:
For Plaintiff: Adv M McChesney
Instructed by: Strydom & Benekamp Inc
C/O: Assheton-Smith Ginsberg Inc.
Box 39
For Defendant: No appearance