IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)
Case No : 048348/2024
(1) REPORTABLE: No
(2) OF INTEREST TO OTHER JUDGES : No
(3) REVISED: /
SIG ATURE
In the matter between:
31 October 2025
D ATE
ANDRE JOHANNES JACOBS
and
TELKOM SA LIMITED
TELKOM RETIREMENT FUND
Applicant
First Respondent
Second Respondent
This judgment is prepared and authored by the Judge whose name is reflected as
such and is handed down electronically by circulation to the parties I their legal
representatives by email and by uploading it to the electronic file of this matter on
CaseLines. The date for handing down is deemed to be 31 October 2025.
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JUDGMENT
RETIEF J
INTRODUCTION
(1] The applicant (Mr Jacobs] seeks a declaratory order that the time taken by
the first respondent [Telkom] to finalise an action it instituted against him under case
10516/2014 [main action] is unreasonable and following this, an order dismissing
the main action with costs, payment of pension benefits and ancillary relief. Such
ancillary relief includes an upliftment of an interim interdict granted against the
second respondent (retirement fund].
(2] Mr Jacobs relief in this application must be seen against the common cause
fact that the board of the retirement fund exercised its discretion to withhold Mr
Jacob's pension benefits pending the outcome of the main action.1 In this way , the
enforcement of Telkom's civil claim against Mr Jacobs as his employer, at the
material time, is protected should the claim in the main action succeed.
[3] In the main action, Telkom seeks the payment of contractual damages of R
203,539,510.00 as a result of breach of contract. Telkom alleges that Mr Jacobs, at
the material time during the period of 2006 to 2012 whilst in its employ, accessed
Telkom's Supreme Core Data and sold it to its competitors [Telkom's claim].
[4] Absent a final determination of the Telkom's claim, Mr Jacobs in 2021 before
Tolmay J unsuccessfully sought interdictory relief against the retirement fund
seeking to compel the fund to pay his pension benefits on the basis, inter alia, that
the board did not exercise its discretion judicially and fairly when it decided to
withhold his pension benefits [first application]2. The papers, save for the judgm ent
penned by Tolmay J (Judgment], in the first application did not form part of the
papers in this application. Howeve r, on the request by this Court, to assist it be in a
1 Section 37D(l)(b) of the Pensions Fund Act 24 of 1965
2 Jacobs v Telkom and Others (17342/2021) (2022] ZAGPPHC 551; (2022) 43 IU 1902 GP (1 April 2022).
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position to consider all the facts and circumstances, was granted access to the filed
papers in the first application and the main application.
[5] By way of introduction, in the first application and, in support of the contention
that the retirement fund failed to exercise its discretion judicially and fairly, Mr
Jacobs, inter alia, relied on the fact that Telkom's unreasonable delay in finalising
the main action demonstrated its lack of possessing a prima facie case against him.
The first application was met with Telkom intervening and by way of a counter
application, successfully obtaining an interim interdict against the retirement fund.
On the 1 April 2022, Telkom's counter application was granted and the relevant
prayer 2 of the order stated the following:
"2. The counter-application is granted and the respondent (retirement
fund-own emphasis) is interdicted from making payment to the
applicant (Mr Jacobs-own emphasis) pending the adjudication of the
action instituted by the first interested party (Telkom - own emphasis)
under case number 10516/2014".
[6] Flowing from prayer 2, Mr Jacob's dismissal and ancillary relief in this
application comes into focus.
[7] Telkom opposes the relief sought. Notwithstanding such opposition and a
filed answering affidavit, Mr Jacobs elected not to file a reply thereto. Instead, he
caused rule 30 notice to be served based on Telkom's failure to file its answering
affidavit in time. This became opposed [rule 30 application].
[8] Telkom then filed a substantive condonation application seeking an order to
condone the late filing of its answering affidavit. It contended that it was 3 (three)
days late and that it had on the last day for filing sought but was refused an
indulgence to file late [condonation application].
[9] On the date of the hearing Mr Jacobs Counsel confirmed that he will not be
proceeding with the rule 30 application and by agreement, condonation was
proceeding with the rule 30 application and by agreement, condonation was
granted. The costs relating to both these preliminary issues will be dealt with below.
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[10] The application proceeded on that basis and on the papers filed. Now to the
respective arguments.
ARGUMENTS
Mr Jacobs
[11] The basis for the relief sought by Mr Jacobs is Telkom's delay to prosecute
the main action without a credible reason. Counsel in written and oral argument
contended that Telkom clearly had no desire to prosecute the claim in that, since
the institution of the claim in 2014 it had not even enrolled the main action for trial
let alone finalised it. To bolster the argument, reference and reliance was made to
the outcome of the first application with reference to the judgment. Such reference
notably was that Tolmay J found an inordinate delay to finalise the main action.3 The
reliance of an inordinate delay was to demonstrate the fulfilment of the first
recognised requirement set out by the Supreme Court of Appeal [SCA] in the
Cassimjee matter.4 The SCA in the Cassimjee matter set out certain requirements
a Court should consider when exercising its discretion to dismiss an action for want
of prosecution. The requirements for consideration over and above all other facts
and circumstances germane to each matter, being that;
a) there must be a delay in the prosecution of the case;
b) the delay must be inexcusable; and
c) there must be serious prejudice.
[12] Furthermore, as the argument unfolded, because Tolmay J in her judgment5
remarked that "The civil action will in all probability not be determined this year
(2022-own emphasis) but should be determined at feast next year (2023-own
emphasis)," and that this was the reason why the Learned Judge was persuaded to
3 Ibid para [21).
4
Cassimjee v Minister of Finance 2014 (3) SA 198 (SCA) at para (11).
5 Footnote 3 para [25).
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grant Telkom a further opportunity to finalise the matter. However , Mr Jacobs in his
founding papers considered the opportunity as a type and shadow of a 'time bar'
when he, with reference to steps taken after the judgment, stated that: " The time
period granted by court had now lapsed ... ". Absent using the opportunity or
compliance by Telkom supported the demonstration of an inexcusable delay. In this
way the second requirement in the Cassimjee matter demonstrated. The third
requirement of serious prejudice to Mr Jacobs as a result of such inexcusable delay
was apparent from the common cause facts.
Telkom
[13] Telkom also relying on the Cassimjee matter, argues that to determine the
remaining requirements set out by the SCA namely, that of an inexcusable delay
and serious prejudice stands to be determined by applying the Plascon-Evans rule6
where dispute of facts arise, as in this case. If so, the inordinate delay having
persisted is excusable on the facts as explained by Telkom. Furthermore according
to the expert summary filed there is overwhelming evidence of Mr Jacob's breach
of his contractual obligations and as such,
[14) Furthermore, that any consideration of delay should be viewed over the
period after the judgment in that, inter alia, Tolmay J found that the inordinate delay
was excusable and therefore the finding that the delay over that period is not
unreasonable must stand.7
[15) Furthermore according to the expert summary filed by Te lkom in 2024, there
is overwhelming evidence of Mr Jacob's breach of his contractual obligations and
as such any serous prejudice suffered by Mr Jacobs not receiving the paymen t of
his pension benefit must be viewed through that lens too.
DISCUSSION OF ARGUMENTS
6
Plascon-Evans Paints v Van Riebeeck Pa ints 1984 (3) SA 623 at 634 C-635C.
7
Footnote 3 para [21).
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[16] It is inescapable on the facts and, as echoed in the judgment that the time
taken from 2014 to 2022 to finalise the main action translated into an long delay. In
context, Tolmay J whe n setting out her reasons when dealing with the requirement
of the balance of convenience, in support of Mr Jacob's final interdictory relief found,
found that despite the delay, it was reasonable and as such, the balance favoured
Telkom at that stage. The main action has still not been finalised and as such, the
long delay persists.
[17] The question which now arises is whether the persisted delay still remains
excusable. To answer this question, Counsel for Mr Jacobs advanced the notion of
inexcusable delay with specific reference to paragraph [25] of the judgment.8
[18] In paragraph [25] of the judgment Tolmay J states that:
"[25] In considering the balance of convenience despite the long delay Mr
Jacobs, has already stated, only filed this application during April 2021. The civil
action will in all probability not be determined this year. But should be determined
at the latest next year. If the interdict is not granted Telkom will lose any change
of obtaining an effective judgment, while Mr Jacobs' hopes of receiving his
pension benefit will only be delayed a little longer."
[19] Reliance must be considered in context. In the preceding paragraph of the
judgment, paragraph 24 the following is said:
"[24] The disputed evidence against Mr Jacobs is serious and potentially
criminal. As a result, I am of the view that it will be in the interests of justice to
grant an interim interdict (in favour of Telkom -own emphasis), especially in light
of the fact that a preferential trial date can be obtained from the OJP. Any one of
the parties or both can approach the OJP in this regard. (own emphasis)"
8 Footnote 2 para [25).
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[20) It was then on this basis that a probability of the finalisation of the matter
could take place. This was reasoned considering the ability of both parties who both
had it within their grasp to obtain a preferential court date. If not applying for a
preferential trial date no party, let alone Telkom could have satisfied any perceived
'time bar' in order to ensure a final determination of the ma in action in 2023.
Therefore, Mr Jacob's contention in his founding papers with reference to paragraph
[25] when he states that "The time period granted by the court which had now
lapsed-"is incorrect and any argument premised on this basis is misleading.
Furthermore Counsel for Mr Jacobs did not make reference to paragraph 25.
[21) It is common cause on the papers that neither Mr Jacobs nor Telkom, as at
the date of the hearing of this application applied to the DJP for a preferential trial
date. Mr Jacobs simply states that Telkom has not done anything realistically to
advance the main application nor apply for a trial date and in consequence the
further delay is inexcusable, and on this basis, his relief should succeed.
[22) Against the backdrop of para 24 and 25 of the Judgment and applying the
SCA's guidance in the Cassimjee matter, all circumstances are to be considered
when this Court exercises its discretion. Both parties' action and inactions are under
the looking glass and that is why this Court was granted access to the filed papers
of the first application and main action. In this way, this Court can give context to the
Judgment and to the procedural arguments raised in respect of the prosecution of
the main action by Telkom to Mr Jacobs prejudice.
What steps were taken by both parties which require consideration in the exercise
of the Court's discretion?
[23) It is common cause that the date of the hearing of the first application
coincided with the date of the first arranged pre-trial conference. The purpose of the
coincided with the date of the first arranged pre-trial conference. The purpose of the
first pre-trial conference was to determine whether the parties could apply to the
Reg istrar for a trial date. Due to the fact on the dates overlapped, the parties agreed
that the pre-trial conference would be cancelled and that the Mr Jacobs would file a
written response to Telkom's proposed pre-trial agenda and minutes before close
of business on the 11 February 2022. Mr Jacobs complied and responded. Telkom
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argued that the response was defective in that it could not, based on Mr Jacobs
response, apply for a trial date.
[24] From the pre-trial minute it is clear that Telkom indicated its readiness for
the allocation of the trial in the third term of 2022. Mr Jacobs conversely stated that
he was not ready. His inability to be ready was because he was waiting for trial
bundles (with reference to paragraph 5.2), he still intended to amend his plea and,
he was unsure at this time whether he wou ld lead expert evidence in that he needed
the trial bundle to ascertain his position. Both parties were in agreement that a
further second pre-trial meeting would be arranged and that at that meeting
separation of issues and duration would be finalised.
[25] Both parties then, as at February 2022 could not have applied for a trial date
let alone a preferential trial date. Mr Jacobs does not indicate whether he filed an
amendment to his plea, and none appears apparent from the pleading on caselines
in the main action at the time of the hearing.
[26] Be that as it may, Telkom argues that as a result of his response, in particular
to paragraphs 5.2 and 5.3 of the agenda, that the pre-trial minute could not be
finalised to apply for a trial date. Telkom contends that in terms of the applicable
Directive a parties' expert reports had to be filed, Joint minutes in respect of such
experts and a pre-trial minute signed by all the parties of a pre-trial meeting which
was not held earlier than 90 (ninety) days before the date on which a trial date was
applied for. This contention on the facts must be accepted.
[27] In an attempt to compile a suitable trial bundle and in trial preparation,
Telkom, 7 (seven) months later, on the 8 September 2022, sought copies of certain
documents discovered by Mr Jacobs. Mr Jacobs provided the copies on the 30
September 2022. Certain issues arose regarding the clarification of the documents
which were made available and such issues were finalised on the 14 November
2022.
which were made available and such issues were finalised on the 14 November
2022.
[28] As at the 14 November 2022 , Telkom argued that it now was in a position to
identify the witnesses and to prepare its expert report in terms of rule 36(9)(b) having
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now had insight to all the documents. No further pre-trial meeting was called for by
either party at this stage.
[29) Telkom served its expert notice in terms of rule 36(9)(a) on the 6 July 2023.
Mr Jacobs does not bemoan the possible lateness of the filed notice in terms of rule
36 (9)(a)(i) nor does he take any further procedural steps.
[30) Telkom on the 27 November 2023 via correspondence tried to convene a
second pre-trial meeting by ascertaining availability of Counse l. Mr Jacob's attorney
undertakes to revert by the 15 January 2024 with Counsel's availability. No letter of
confirmation followed. A further request via correspondence was made which was
not met with a reply. Telkom then filed a formal notice in terms of rule 37(2) of a
scheduled pre-trial conference to be held on the 7 May 2024.
[31) On receipt of this notice Mr Jacobs attorney becomes aware that preparation
for the pre-trial and trial readiness is again the objective. Telkom in preparation for
trial readiness and in an attempt to cure the outstanding requirements, on the 29
April 2024 now serves its expert summary in terms of rule 36(9)(b ), it's pre-trial
agenda and it's proposed pre-trial bundle.
[32) Mr Jacobs founding papers deal with the receipt of served documents on the
29 April 2024. In other words he had no intention of ensuring trial readiness on his
side because he, after the delivery of the document on the 29 April 2024, now having
insight to Telkom's case on the merits, by virtue the expert summary rather states
under oath that, he is unsure why Telkom served the documents at this late stage
as '-the horse had already bolted". It is unclear which horse had bolted but from his
founding papers that horse may have been the 'time bar' which he erroneously
thought operated against Telkom. In other words, with reference to paragraph [24]
of the Judgment 'by the end of 2023' had come and gone.
[33] Be that as it may, on the 6 May 2024 after this application had been launched,
[33] Be that as it may, on the 6 May 2024 after this application had been launched,
Mr Jacob's attorney finally responded to the call for a further pre-trial meeting by
informing Telkom that no purpose would be served by such a meeting as this
application had already been filed on the 3 May 2024. On the 7 M ay 2024 Mr Jacob's
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Counsel recorded that the scheduling of the pre-trial meeting was premature in light
of the service of the application.
[34] Curiously the prematurity referred to has, despite this application, not
prevented the parties from holding, filing and signing a pre-trial minute after the
service of this application. This much is clear from the papers filed in the main
application.
[35] In consideration of all the facts, the circumstances and the procedural steps
taken, both parties' actions and inactions contributed to the further delay.
Furthermore, Mr Jacobs and his legal team took no further procedural steps to finally
ensure that Telkom too could apply for a trial date. The DJP was not approached as
a case manager to limit prejudice caused by any delay.
[36] In as much as Telkom moved slowly, which the Court finds it did, it took
further steps. Mr Jacobs conversely possibly belabouring under the incorrect
impression that a 'time bar' existed just sat back waiting for the time to tick away.
When the opportune moment presented itself, he brought this application. All of this
is to be considered in context.
[37] In consequence, this Court finds that there was yet a further delay but that
such too, as the previous delay is excusable for the reasons set out herein.
Considering all the facts and considering the nature of the dismissal relief this Court
is not inclined to exercise its discretion in favour of Mr Jacobs. This matter requires
a case manager as envisaged in terms of rule 37 A to bring it to finality to safeguard
any further delays and prejudice. Both parties are urged to take steps in this regard.
[38] There is no reason why cost should not follow the result, none was argued.
Furthermore, regarding the costs associated with the preliminary relief, each party
should bear their own costs in respect of the postponement application and, Mr
Jacobs should bear the costs for initiating and not persisting with the opposed rule
Jacobs should bear the costs for initiating and not persisting with the opposed rule
30 application, due to the fact that he only made his intention known not to proceed
at the date of the hearing and during argument.
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[39] In consequence, the following order:
1. The First Respondent is granted condonation for the late filing of its
answering affidavit.
2. The Applicant's application is dismissed.
3. Each party is to bear their own costs occasioned by the First
Respondent's condonation application.
4. The Applicant is to pay the First Respondent's costs, such costs to
include the costs associated w ith the Ru le 30 application.
Furthermore, all costs awarded are to include the cost of two Counsel
so employed, the one being a Senior Counsel taxed on scale C and
Junior Counsel on scale B.
Appearances:
For the Applicant:
Instructed by attorneys:
For the First Respondent
L.A. R ETIE F
Judge of the High Court
Gauteng Division
Adv M Snyman SC
Cell: 082 571 2797
Email: msnyman@snymsnfamilie.co.za
Van Vollenhoven Snyman Inc
Tel: 071 672 2654
Email: gustav@vvsinc.co.za
Adv B.H Swart SC
Cell: 082 559 8869
Ema il: benswart@advocates.za.net
Instructed by attorneys:
Date of hearing:
Date of judgment:
MacRobert Attorneys
Tel: 084 449 3129
Email: rchinner@macrobert.co.za
12 August 2025
31 October 2025
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