IN THE HIGH COURT OF SOUTH AFRICA
LIMPOPO DIVISION, POLOKWANE
CASE NO: 2381/2022
(1)
(2)
(3)
REPORTABLE: NO
OF INTEREST TO THE JUD
RE V ISED.
Date: 11 November 2025
In the matter between:
DEWALD MYBURG
and
DISCOVERY LIFE LIMITED
APPLICANT
RESPONDENT
JUDGMENT
MOGALE-MAKINT A, AJ
INTRODUCTION
(1] This is an unopposed application for leave to appeal the judgment and order of this
court dated 28 August 2024.
(2] The court made the following order:
2.1. The defendant's application in terms of Rule 30 is dismissed.
2.2. The plaintiff is granted leave to amend its particulars of claims as set out in
the plaintiffs notice of intention to amend dated 07th February 2023.
2.3. The plaintiff is directed to file its amended pages within 10 (ten) days of the
date of this order.
2.4. The defendant must file a plea within 15 (fifteen) days of receipt of the
plaintiff's amended pages. If the defendant fails to file his plea within this
stipulated period, the defendant shall be ipso facto barred from doing so.
2.5. The defendant is ordered to pay the costs of the Rule 30 application,
condonation application, and upliftment of the bar on scale C.
2.6. The plaintiff is ordered to pay the costs for leave to amend on scale B.
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(3] The application for leave to appeal was filed on 16 September 2024. This
application is brought in terms of section 17(1)(a) and (ii)1, to wit, that the appeal would
have a reasonable prospect of success and/or there are some compelling reasons why
the appeal should be heard.
[4] The applicant contends that this court erred in finding that:
(4.1] The defendant's application in terms of Rule 30 should be dismissed after having
found that the summons was defective. The court ought to have found that the summons
was, in fact, an irregular step as determined in paragraph 25 of the judgment, that
"It is evident that the combined summons is defective, and this matter cannot proceed with
defective pleadings. The pleadings must be cured for the matter to progress. The plaintiff tried to
cure the irregularity through correspondence, which the defendant rejected."
(4.2.] The summons failed to comply with Rule 18(1) due to its irregularities and should
have been set aside.
(4.3] An irregularity in the summons could not have been remedied through
correspondence, since correspondence does not alter pleadings.
(4.4] There is no other evidence that indicates the prejudice suffered due to the alleged
irregularity was found, except for the defendant relying on the provisions of Rule 18(12).
Instead, the court should have found that if the pleadings do not comply with the
provisions of Rule 18(1) this requires specific particulars to be set out therein, and the
1 Superior Courts Act 10 of 2013.
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prejudice required for setting aside the pleadings in terms of Rule 30 has been established
prima facie.
(4.5] The summons, which does not comply with Rule 18(1 ), is amendable in terms of
Rule 28 without determining if the defendant will not suffer any prejudice due to the
amendment. The court should have found that Rule 18 (1) sets out formal requirements
for pleadings, while Rule 23 and Rule 18(4) deal with material requirements for pleadings.
While the Court correctly found in para 23 that: "It is trite law that pleadings that do not
comply with Rule 18(1) of the Uniform Rules of Court may be condoned or set aside", the
court erred in not finding that the noncompliance with Rule 18(1) can only be cured by
condonation and not by amendment.
(4.6] The alleged irregularity concerning an unidentified person who signed the combined
summons was properly cured by correspondence, which was transmitted to the applicant
on 7 February 2023. Instead, the court ought to have found that the unidentifiable
signature affixed to the combined summons was irregular and that the irregularity of the
combined summons should be set aside in the absence of condonation. The court should
have further found that an irregular combined summons cannot be amended and cured
by way of correspondence.
(4.7] The alleged irregularity in the defendant's complaint has no merit. The defendant
failed to demonstrate that they had suffered any prejudice if the irregularity was not cured.
Instead, the court should have found that if a party fails to comply with any of the
provisions of Rule 18, such a pleading in terms of the rule is an irregular step, and the
opposing party (the Respondent) shall be entitled to act in accordance with Rule 30 in
setting the irregular step aside.
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(4.8] In paragraph (35], it is mentioned that "I'm afraid I have to disagree with the
defendant's submission that the combined summons is defective and cannot be cured by
correspondence or amendment. The court had already stated in para (25] "It is evident
that the combined summons is defective ... ". Further, the court should have found that a
defect cannot be cured by correspondence, nor can a defect of a pleading not complying
with Rule 18(1) be cured by an amendment in terms of Rule 28.
(4.9] The defendant did not file a written notice to remove the irregularity, for which reason
the defendant sought condonation. Instead, the court should have found that the
defendant did, in fact, file the written notice to remove the irregularity, but in an abundance
of caution, sought condonation for late filing thereof.
(5] The applicant appeared in person, as he could no longer afford the services of a
legal representative, and requested the court to grant him an opportunity to present his
case. He did not provide a reason for his failure to file a plea as ordered by the court. It
was also explained to him that the order is not final, and he still has the opportunity to file
his plea for the matter to proceed.
(6] The application is opposed on the basis that an appeal against the judgment would
enjoy no prospects of success on the following grounds:
(6.1] The court order is not final and is not appealable.
(6.2] The court order may only be appealed against in special, limited circumstances.
The defendant has failed to make out a case why the appeal court should interfere
with the exercise of the court a quo's discretion.
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(6.3] There is no chance of another court coming to a different conclusion.
[7] The respondent further argued that procedural orders such as the dismissal of an
exception on the ground that the particulars of claims do not disclose a cause of action,
the dismissal of an exception on the ground that the particulars of claims are vague and
embarrassing, procedural orders such as an order to supply further particulars, referral to
oral evidence, and an order granting a plaintiff leave to amend the particulars of claim,
such orders are not appealable.
(8] I concur with the respondent's submission that the orders issued by the court are
interlocutory in nature, as they are procedural rulings. They are not subject to appeal,
unless an interlocutory order exerts a final and definitive impact on the proceedings.
[9] In TWK Agricultural Holdings (Pty) v Hoogveld Boerderybeleggings (Pty) Ltd and
Others2, SCA interrogated the notion of appealability and interest of justice. The court
affirmed that the doctrine of finality must be the central principle of consideration when
deciding whether a matter is appealable.
2 [2003] ZA SCA 63; 2023 (5) SA 163 (SCA )
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(1 O] For an order to be appeal able, it must possess the following factors:
(8.1] It must be final in effect and not susceptible to alteration.
(8.2] It must be definitive of the rights of the parties.
(8.3] It must have the effect of disposing of at least a substantial portion of the relief
claimed in the proceedings.3
(11] The application for leave to appeal is regulated bys 17(1)(a) (i) and (ii) of the Act,
which states that:
(1) leave to appeal may only be given where the judge or judges concerned think
that-
(a) (i) the appeal would have a reasonable prospect of success; or
(ii) there are some other compelling reasons why the appeal should be heard,
including conflicting judgments on the matter under consideration.
(12] The courts have consistently applied the test on whether leave to appeal should
be granted or not. The liberal approach to granting leave to appeal by courts is
discouraged, as it is inconsistent with Section 17 of the Act. The Supreme Court of Appeal
in Mothule Inc Attorneys v The Law Society of the Northern Provinces and Another stated
the following regarding the trial court's liberal approach to granting leave to appeal.
3 Zwen i v The Minister of Law and Order of the Republic of SA 1993( 1) SA 523 (A) at 532J-5338.
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"It is important to mention my dissatisfaction with the court a quo's granting of leave to
appeal to this court. The test is whether there are any reasonable prospects of success in
an appeal. It is not whether a litigant has an arguable case or a mere possibility of
success."
(13] Consequently, the applicant cannot appeal procedural orders; they are not
appealable. The order granting the applicant leave to amend the particulars of claims is
not appealable4. The order dismissing an application in terms of Rule 30 is not
appealable5.
(14] The applicant was allowed to submit a plea within fifteen (15) days of receiving the
plaintiffs amended particulars of claim; however, he failed to comply with the court's
directive. It is my view that the application for leave to appeal and the applicant's failure
to file the plea constitute a deliberate strategy by the plaintiff to circumvent justice.
(15] In the circumstances, the leave to appeal has no reasonable prospect of success;
thus, the application should be dismissed.
4 Webber Wentzel v Batstone 1994 (4) SA 334 (T).
5 National Empowerment Fund v Zilwa (2019) ZAGPJHC 112.
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(16] Based on the findings above, the court makes the following order:
a. The application for leave to appeal is dismissed with costs on scale C
MOGALE-MAKINT A,
ACTING JUDGE OF THE HIGH COURT
LIMPOPO DIVISION, POLOKWANE
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Electronically submitted.
Delivered: This Judgment was prepared and authored by the Judges whose names are
reflected and is handed down electronically by circulation to the parties/their legal
representatives by email and uploading to the electronic file of this matter on Case Lines.
The date for hand-down is deemed to be 11 November 2025
Date of hearing: The matter was heard in an open court. The matter may be determined
accordingly. The matter was set down for a court date on 27 October 2025.
Date of Judgment: 11 November 2025
Appearances:
For the Applicant:
Instructed by
For the Respondent
Instructed by
Mr Dewald Myburgh
In person
Advocate L M Spiller
Keith Sutcliffe & Associates INC
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