THE REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
CASE NO: 2023-106751
DELETE WH ICHEVER IS N OT A PPLIC ABLE
( 1) REP OR T A BLE: NO
(2) OF INTEREST TO OTH ER JUDGES: NO
(3) REVISED: /
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'SIG N ATURE
.... 17 /11 /2025 .......... .
DAT E
In the matter between:
LESEDI INVESTMENT PROPERTIES (PTY) LTD First Ap plicant
TLADI THABISO PUWANE Se cond Applicant
A nd
COLLETT DUDUZILE SIKHAKHANA First R espondent
VALERIE NTSADI SIMONE Second Res pondent
ROAS !SMAIL AHMED Third R espondent
NOMPUMELELO ESTER MADONSELA Fourth Respondent
BUKHOSI ALPHEUS XIMBA Fifth Respondent
MEMENG DOROTHY MATSETELA Sixth Respondent
BRIJH DEWCHARAN Seventh Respondent
EPHY JOYCE BUSISIWE SHEMBE Eighth Respondent
LUCUS TSHABATSHABA TSHETLO Ninth Respondent
JUDGMENT
NKOENYANE AJ :
Introduction
[1] This is an interlocutory application that turns on a fundamental point of
procedure. The First and Second Applicants (the Defendants in the main action)
seek condonation for the late delivery of a document dated the 3rd of April 2024,
which they style an "Exception." The Respondents (the Plaintiffs in the main
action) seek an order striking out that document and dismissing the
condonation application, contending that the Defendants are barred from
pleading.
[2] The procedural history is largely common cause. The Plaintiffs issued
combined summons in late 2023. After the Defendants filed a notice of intention
to defend, the Plaintiffs served a notice of bar on the 251h of March 2024. On
the 3rd of April 2024, the last day of the bar period, the Defendants delivered
the impugned document. No further steps were taken until the Defendants
launched this application for condonation on the 16th of January 2025.
Issues for Determination
[3] The following issues fall for determination:
3.1. Whether the Defendants' application for condonation should be granted.
3.2. Whether the document dated the 3rd of April 2024 constitutes a valid notice of
exception.
3.3. If not, what the consequences are.
The Legal Framework: The Nature of an Exception
[4] The starting point is the Uniform Rules of Court. Rule 23(1) permits a party to
deliver an exception where a pleading is vague and embarrassing or lacks
necessary averments. Rule 23(3) requires that the grounds for the exception
be "clearly and concisely stated."
[5] The fundamental nature of an exception was succinctly articulated in Barclays
National Bank Ltd v Thompson 1. Van Heerden JA held that the function of a
well-founded exception is "to dispose of the case in whole or in part" and
thereby "to avoid the leading of unnecessary evidence at the trial." It is a
mechanism for judicial efficiency, designed to resolve legal disputes at the
pleading stage.
1 1989 (1) SA 547 (A) para 19
[6] Critically, an exception is a pleading. The distinction between a procedural
notice and a pleading is dispositive in this matter. In Hill NO and Another v
Brown 2, the court provided essential clarity. It held:
6.1. An exception is a pleading and, like a plea, "a properly drawn exception
concludes w ith a prayer for relief' (at para [4]).
6.2. A notice in terms of Rule 23(1 )(a), which affords an opponent an opportunity to
remove a cause of complaint, is "simply that, a notice." It is a precursor to a
potential exception, not the exception itself, and it "claims no relief' and "does
not call for adjudication" (at para [6]).
6.3. Consequently, a Rule 23(1)(a) notice "is not a proper response" to a notice of
bar issued in terms of Rule 26. To avoid being barred, a defendant must deliver
a "pleading," which is either a plea or a formal exception (at para [8]).
Analysis
A. The Condonation Application
[7] The Defendants seek condonation for the late "setting down of the exception"
and the "non-delivery of a formal exception." The test for condonation is trite
and requires a consideration of the degree of lateness, the explanation offered,
the prospects of success, and the prejudice to the other party.
[8] The Defendants' explanation that their counsel was not informed of a hearing
date is unconvincing. It does not adequately explain the extensive delays in this
matter, particularly the failure to timeously deliver a proper pleading in response
to the notice of bar and the subse quent inertia. Th e Plaintiffs' contention that
the Defendants' conduct is dilatory and tactical is not without merit.
2 (2020] ZAWCHC 61
[9] Most significantly, and for reasons that will become apparent, the defendants
have no prospects of success on the merits of their underlying case. A complete
absence of prospects is fatal to any application for condonation. It follows,
therefore, that the application for condonation must be dismissed.
B. The Validity of the 3 April 2024 Document
[1 O] I turn now to the core of the dispute. The document delivered on the 3rd of April
2024 is divided into two parts. Part A alleges no cause of action, and Part B
alleges that the particulars of claim are vague and embarrassing. Crucially, the
document affords the Plaintiffs "a 15-day courtesy period" to remove the cause
of complaint and contains no prayer for relief.
[11] Applying the binding authority of Hill NO, this document is not an exception. Its
defining characteristic is that of a Rule 23(1 )(a) notice. By providing an
opportunity to amend and by omitting a prayer for the relief of striking out the
pleading, it fails to meet the essential requirements of a pleading. It is, at best,
a nullity in the context of being a response to a notice of bar.
[12] It follows that this document did not constitute a valid response to the plaintiffs'
notice of bar. The defendants were therefore duly barred from delivering their
plea upon the expiry of the bar period on the 3rd of April 2024.
C. The Substantive Grounds of Exception
[13] Even if I were wrong on the procedural points which I am not and that the
document in question could properly be regarded as a valid exception, its
substantive grounds would nonetheless fail. On any assessment, the exception
lacks merit.
13.1. Unquantified Damages: The Defendants argue that the Plaintiffs' claim for
damages is vague and embarrassing because paragraph 42 of the particulars
of claim states the quantum "cannot reasonably be quantified" before claiming
specific amounts. This argument misunderstands Rule 18(10).
13.2. As held in Minister van Wet en Orde v Jacobs 3, the Rule requires only such
particulars as would enable the defendant "to estimate the quantum," not to
verify its correctness. The Plaintiffs have pleaded a specific global amount and
detailed the factual basis for the loss (unlawful ejection, demolition, loss of
income). This is sufficient for the purpose of Rule 18(10).
13.3. Derivative Action: The Defendants' contention that the Plaintiffs requires leave
to bring a derivative action under section 165 of the Companies Act is
misconceived. The Plaintiffs' claims, as pleaded, are brought in their personal
capacities as shareholders for damages suffered due to alleged fraudulent
conduct, not on behalf of the First Defendant.
13.3. Restoration of Property (Prayer 6): The Defendants correctly cite
Tswelopele Non-Profit Organisation v City of Tshwane 4 for the principle
that the mandament van spolie is aimed at the restoration of physical control,
"not its reconstituted equivalent." However, they err in characterising Prayer 6
as a pure spoliation claim. The Plaintiffs' cause of action is multifaceted,
including claims for declaratory relief and damages . Prayer 6 can reasonably
be interpreted as a claim for final relief, such as specific performance, flowing
from their other causes of action, and is not excipiable on the narrow ground
advanced.
Conclusion
3 1999 (1) SA 944 (0 ) at 953B-C (often cited as 952I-953E)
4 2007 (6) SA 511 (SCA) at para [24]
[14] The Defendants' application for condonation is dismissed. The document dated
3 Ap ril 2024 does not constitute a valid exception and is accordingly struck from
the record. Having failed to deliver either a plea or a valid exception in response
to the notice of bar, the defendants remain barred from doing so.
(15) The Defendants' approach has been procedurally flawed from the outset and
has served to delay the resolution of this matter. In these circumstances, the
Plaintiffs are entitled to their costs on a punitive scale.
Order
(16] The following order is made:
1. The App licants' application for condonation is dismissed.
2. The document dated the 3rd of April 2024, purporting to be a notice of exception,
is struck out.
3. The Applicants are ordered, jointly and severally, the one paying the other to be
absolved, to pay the Responde nts' costs of this application on the scale as
between attorney and client.
( ?
N OE JYANEAJ
ACTING JUDGE OF THE HIGH COURT
GAUTENG LOCAL DIVISION,
JOHANNESBURG
Date of Hearing: 12 August 2025
Date of Judgment: 17 November 2025
Appearances:
For the Plaintiffs/Respondents:
Adv. T J Magano
Instructed by:
Cornelius JM Attorneys
For the Defendants/Applicants:
Adv . LF Taljaard
Instructed by:
Mmakola Matsimela Inc.