IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
JUDGMENT
Appeal Case no: A177/2025
Case Number: a quo RCC/BELL/976/2025
In the matter between:
LESLIE VAN DER LINDE APPELLANT
And
BEN GROOT t/a GVS LAW
DEON SCHEEPERS
FIRST RESPONDENT
SECOND RESPONDENT
Neutral citation: Leslie Van der Linde v Ben Groot t/a GVS L aw and Deon
Scheepers (Appeal Case no A177/2025) [2025] ZAWCHC …
(1 December 2025)
Coram: LEKULENI J & PATHER S AJ
Heard: 17 October 2025
Delivered: 1 December 2025
Summary: Civil Proceedings – Rule 60A of the Magistrate’s Court Rules -
Appellant’s summons set aside as an irregular step. Court a quo not affording
Appellant leave to amend his summons in terms of Rule 60A(3) of the Magistrates’
Court Rules - Court a quo misdirect ed itself - Appeal upheld – Appellant granted
leave to amend his summons.
ORDER
1. The Appeal is upheld;
2. The judgment and order of the magistrate in the Court a quo is set aside and
replaced as follows:
3. The Appellant’s particulars of claim are declared to be an irregular step, in
that it is vague and embarrassing, and it does not detail sufficient
particularity;
4. The Appellant is given 15 court days from the date of this order within
which to amend his pa rticulars of claim and to subsequently serve the
relevant amended pages on the Respondents in terms of the Magistrates
Court Rules;
5. In the event that the Appellant fails to amend his particulars of claim within
the time period set out above, the Responden ts shall be entitled to institute
an application to have the Appellant’s action dismissed;
6. The costs of the Rule 60(2) application shall be costs in the cause.
7. The Respondents are ordered to pay for all of the Appellant’s disbursements
incurred in the prosecution and hearing of the appeal, such costs to be taxed
or agreed.
JUDGMENT
__________________________________________________________________
PATHER AJ: (LEKHULENI J Concurring)
Introduction
[1] This is an appeal against the whole judgment and order of the Magistrate ’s
Court, Belville handed down on 01 April 2025, pursuant to an action instituted by
the Appellant, on 10 October 2024 against the Respondents . The court a quo set
aside the Appellant’s summons as an irregular step in terms of Rule 60A of the
Magistrates’ Court Rules. In setting aside the summons as an irregular step, t he
Court a quo did not provide the Appellant leave to amend his summons, as
provided in Rule 60A(3) of the Magistrates Court Rules . Instead, the Court a quo
set aside the summon as an irregular step and ordered the Appellant to pay the
costs of the application. The Appellant seeks a reversal of that order in these appeal
proceedings.
The Background Facts
[2] The cause of action in this matter arose as a result of the Second Respondent
instituting action against the Appellant, who was at the time a businessman trading
under the name Leslie Van Der Linde t/a Van Der Linde Auto Repairs for unpaid
rental. The action against the Appellant was instituted in 2015, in the Belville
Magistrate’s Court, and the First Respondent was instructed as the Attorney of
Record for the Second Respondent.
[3] The Appellant had alleged that the action that was instituted against him in
2015 was brought on a false set of facts, as the landlord with whom the lease was
entered into, had sold the property and had no interest in the rent al claim. In that
action, the Landlord was cited as Vukile Property Fund (the previous owner). The
Appellant stated that he did not owe any money to the Landlord as alleged or at all.
[4] The 2015 action went through its normal exchange of pleadings and was set
down for trial on 17 May 2016. The Appellant had at the time engaged both an
attorney and counsel, and he assumed that they were dealing with the matter on his
behalf. However, he subsequently discovered that on 17 May 2016, his team
withdrew, and unbeknownst to him, a default judgment was entered against him in
the amount of R42 632.86. What followed was various execution proceedings
against the Appellant, who was unable to settle the amount claimed. Subsequent
thereto, the Appellant closed his bu siness, his premises were re-let, and he took up
employment at a local college.
[5] Thereafter, in August 2016, the Appellant was served with a Notice in terms
of Section 65 of the Magistrates' Court Act to appear in Court on 6 September
2016. It was only upon receiving this notification that he became aware of the
judgment that had been entered against him in May 2016. The Appellant was
unsuccessful in contacting his erstwhile representatives.
[6] What then followed can only be described as an unfortunate series of
hardship, which highlights the injustices that sometimes occur when parties are
unrepresented and when the rules of court are not properly interpreted. The
Appellant asserted that he ente red into a payment plan with the first Respondent,
even though he did not owe the money, and that this led to further proceedings
being brought by the Second Respondent through the First Respondent. Despite the
payment arrangements, execution proceedings were instituted which resulted in an
attachment and removal of the Appellant’s property. The Appellant had no option
but to seek assistance to rescind the judgment. The Appellant did not have funds to
secure an attorney to appear for the application and he had to represent himself.
The rescission application was unsuccessful, and this then led to numerous further
attachments of the Appellant’s assets including motor vehicles, furniture, and other
items.
[7] Appellant then sought assistance through a firm of attorneys who negotiated
a settlement agreement with the First Respondent, and who also advised the
Appellant to take the order refusing his rescission application on appeal. T he
agreement with the First Respondent set out the terms of the settlement in respect
of payment of the judgment debt however, it was also agreed that upon the
finalisation of the appeal, if the Appellant was successful, then the First
Respondent would be liable to repay R40 000 to the Appellant (amount was being
held in the First Respondent’s Trust Account).
[8] The Appeal was set down in the High Court for 12 October 2018 , and the
First Respondent delivered a Notice to Abide. The outcome of the Appeal wa s in
favour of the Appellant who was given leave to defend the action. Despite sending
the order to the First Respondent, there was no response nor repayment of the
R40 000 that was h eld as security pending the outcome of the Appeal. The action
instituted through the First Respondent in 2016 was withdrawn in 2020 but despite
this, there was no return of the payment made by the Appellant to the First
Respondent. L egal Practice Council (“LPC”) complaints were all not successful,
and the Appellant was still in the same position.
[9] Subsequent thereto, t he Appellant instituted action against the First and
Second Respondents on 18 October 2023. The summons was served on the First
Respondent by the Appellant, and it was emailed to the Second Respondent. The
First Respondent filed an Appearance to Defend for both Respondents and
simultaneously delivered a notice in terms of Rule 60A (2) of the Magistrates
Court Rules.
[10] Rule 60A deals with irregular steps and affords the aggrieved party the
opportunity to request that the offending pleading be cured so as to allow the
Respondent to plead to the action. The Respondents gave Notice to the Appellant
of the irregular summons and requested the Appellant to remove the cause of
complaint. The Appellant opposed that Notice and unfortunately, the defects
remained. The Respondents served its Notice in terms of Rule 60 A, a day late and
asked that this delay be condoned. The Respondents further sought the relief that
the service of the summons by the Appellant as opposed to the Sheriff was
irregular and that the summons ought to be set aside. Prior to the ventilation of the
Rule 60 A proceedings, the Appellant had also served a Notice of Bar on the
Respondents and this the Respondents sought to be declared irregular. On 12
September 2024, t he Magistrate who dealt with the Rule 60 A application found
that the Appellant had not complied with the Rules and set aside the summons as
an irregular step.
[11] The Court did not in its order afford the Appellant an opportunity to cure the
defective pleading or service. The Appellant believed that the summons was set
aside and that the action was over and had to start all over again. The Magistrate
ought to have declared the summons and or particulars of claim an irregular step
and gave the Appellant a period of time to amend his papers, and in the event that
the amendments were not effected, then the Respondent could have instituted an
application to dismiss the action.
[12] After the first summons was set aside; the Appellant instituted another action
against the Respondents on 4 October 202 4 under case number RCC/BELL
976/24. The Respondents entered an Appearance to Defend and deliver ed another
Rule 60A notice, which seems to be a stock standard approach. Among others, the
Respondent averred that in his summons the Appellant did not cite his occupation;
and that the Appellant’s particulars of claim f ailed to comply with Rule 6(3) and
6(4) of the Magistrate Rules in that each paragraph does not contain a distinct
averment, and also does not contain a concise statement of the material facts upon
which the plaintiff relies for his claim.
[13] The Appellant opposed the Rule 60A application . The matter subsequently
appeared before the same Magistrate who deal t with the previous Rule 60A
application in which he had found in favour of the Respondents. In setting aside
the summons for the second time as an irregular step, the Magistrate stated that the
Magistrate’s Court cannot condone non-compliance with the Rules , yet it is the
same Court that condoned the Respondents’ late delivery of the replying affidavit
in the earlier application. After hearing the ma tter, and again stock standard, the
learned Magistrate set aside the summons and order ed costs against the Appellant.
Again, the Magistrate did not afford the Appellant an opportunity to amend his
summons in terms of Rule 60A(3) of the Magistrate Court Rules.
Discussion
[14] This Court is tasked to consider the appeal against the judgment of the
Magistrates in relation to an action instituted by the Appellant, in October 2024
(second action). The Appeal deal s with the application of Rule 60A, in regard to
irregular proceedings and the power of the Magistrate’s Court to deal with such
applications, the effect of the order, and whether an order that the pleadings are
irregular automatically has the effect of setting aside the action in toto.
[15] I must emphasise that the second action was initiated because the learned
Magistrate previously set aside the first summons, deeming it an irregular step.
The second action was based on claims which the Appellant states were
wrongfully instituted against him by the Respondents . These claims had the effect
of a judgment being entered against the Appellant, resulting in execution
proceedings against the Appellant’s assets for payment of the judgment debt . In
addition, the Appellant claimed for costs for the rescission of the judgment a s well
as setting aside of the warrant of execution, together with a claim for damages.
[16] As previously stated, t he Respondents in the second action instituted a Rule
60A application. Like in the first action hereto, the learned Magistrate failed to
apply the rules correctly in that matter and it appears that history has repeated itself
in the present matter , much to the disadvantage of the Appellant who has suffered
an injustice. For the second time the Magistrate set aside the Appellant’s summons
and failed to grant the Appellant leave to amend the summons.
[17] As alluded to above, the learned Magistrate permitted the First Respondent
to submit the Rule 60A application outside of the designated timeframe in the first
action. The same Magistrate condoned the late delivery of the Rule 60A Notice,
despite Rule 60 (5) and (6), requir ing that an app lication for condonation should
have been brought. The learned Magistrate did not have the power to condone the
late delivery of the application without a substantive application for condonation.
The Magistrate exceeded his authority to facilitate the Respondent. This
underscores the unfairness of the Magistrate's decision to disregard the summons
and particulars of claim and not condone the Appellant's non-compliance with the
Rules especially bearing in mind that the Appellant was in person. The Magistrate
simply granted an order as set out in the Respondents ’ notice of application . The
Notice did not provide for the Appellant to be granted permission to amend his
particulars.
[18] For completeness, Ru le 60A of the Magistrates Court Rules provides as
follows:
‘(1) A party to a cause in which an irregular step has been taken by any other party may
apply to court to set it aside.
(2) An application in terms of subrule (1) shall be on notice to all partie s specifying
particulars of the irregularity or impropriety alleged, and may be made only if —
(a) the applicant has not himself or herself taken a further step in the cause with
knowledge of the irregularity;
(b) the applicant has, within 10 day s of becoming aware of the step, by written notice
afforded his or her opponent an opportunity of removing the cause of complaint within 10
days; and
(c) the application is delivered within 15 days after the expiry of the second period
mentioned in subrule (2)(b).
(3) If at the hearing of an application in terms of subrule (1) the court is of opinion that
the proceeding or step is irregular or improper, it may set it aside in whole or in part,
either as against all the parties or as against some of the m, and grant leave to amend or
make any such order as it deems fit.
(4) Until a party has complied with any order of court made against him or her in terms of
this rule, he or she shall not take any further step in the cause, save to apply for an
extension of time within which to comply with such order.’
[19] The Appellant's summons was properly signed by the Appellant and issued
by the Registrar, and it was not a nullity. From a plain reading of subrule 60A(3) it
is patently clear that a Magistrate has a wide discretion to condone or set aside an
irregular step. ( Rabie v De Wit 2013 (5) SA 219 (WCC) para 15). In Santam
Insurance Co Ltd v Manqele 1975 (1) SA 607 (D) at 608 , the court dealt with a
case where an exception to the plaintiff's combined summons had previously been
successfully taken. In upholding the exception, the particulars of claim had been
struck out. The plaintiff was granted leave to deliver amended particulars of claim.
The court stated as follows at 609A-B:
‘In my opinion the effect of the judgment upon exception was that the respondent was not
obliged to commence his action de novo; the summons as such remained as a summons
commencing action. However the Court struck out the particulars of claim set out in it
and the re spondent was granted leave to file amended particulars within 14 days. It is
and the re spondent was granted leave to file amended particulars within 14 days. It is
clear that the particulars of claim in a combined summons must be regarded as a pleading
(see Rule 18). As a result the Court's order accordingly gave the respondent the right to
file a pleading substantially in the form of a declaration within 14 days.’ (our emphasis)
[20] In my view and considering the wide discretion bestowed to the Magistrate
in terms of Rule 60A(3), the Magistrate ought to have declared the summons and
or particulars of claim an irregular step and thereafter gave the Appellant a period
of time to amend his papers . If the amendments were not effected, then the
Respondent could have instituted an application to set as ide the action. At this
point, it is unclear whether the learned Magistrate understood the applicability of
Rule 60A. This uncertainty arises from the fact that, in the first application, the
Magistrate set aside the Appellant’s summons without giving the Appellant a
chance to amend it. Similarly, in the second application, the same Magistrate again
set aside the Appellant’s summons and failed to allow the Appellant leave to
amend the summons.
[21] This created some difficulty , as the Appellant believed t hat the summons
had been set aside and that the matter was finali sed on that basis. However, this
was erroneous as the non -compliant pleading did not amount to an invalidation of
the action. The order of the court a quo misled the Appellant into believing that the
action was dismissed. As foreshadowed above, the effect of the order made upon
the setting aside of the summons was to leave a summons in existence which was
virtually an empty husk . The court had to give the Ap pellant leave to fill the husk
with amended particulars within a specified period. For greater certainty, a fter
setting aside the summons, the Magistrate should have granted the Appellant time
to amend his summons in terms of Rule 55A of the Rules of Court.
[22] Whilst this Court must accept that a lay litigant such as the Appellant would
not ordinarily have known the Rules relating to the amendment of his pleadings
after the Rule 60A application, this Court must find that the same leniency given to
an ex perienced lawyer such as the First Respondent should have been given the
Appellant as well. Had the order been dealt with correctly, it would have avoided
what can only be described a miscarriage of justice.
[23] The Appellant was highly critical of the Magistrate and seemed to suggest
impropriety on his part . This Court lacks the necessary information to address
these allegations; however, the Court has had regard to the transcript provided and
it seems that the le arned Magistrate had initially believed that the matter before
him was a recusal application. Perhaps, considering the previous incorrect order
and the fact that the same Magistrate had heard the previous application, he should
have recused himself. In cir cumstances, where the Magistrate did not recuse
himself, it would be incumbent upon him to deal with the matter fairly, and
properly. Regrettably, he did not , and the Appellant’s criticisms of the Magistrate
and his conduct is reasonable considering the circumstances and the severe
prejudice that the Appellant has had to endure.
[24] A final aspect requires comment. Section 34 of the Constitution guarantees
the right of access to court and states that everyone has the right to have any
dispute that can be resolved by the application of law decided in a fair public
hearing before a court or, where appropriate, another independent and impartial
tribunal or forum. In Sasol South Africa v Penkin, (06609/2020) [2023] ZAGPJHC
329 (14 April 2023) para 6, it was held that the right to have access to the court ‘is
an embodiment of an ancient common law principle that a person has a right to a
proper and fair hearing, which has, at its core, the right to a litigant to tell his or her
side’. Evidently, courts have a duty when adjudicating cases where lay litigants are
representing themselves to approach those cases in line with this constitutional
ideal. (Quentin Pedlar v Santam Limited Case No: 010346/22 para 24).
[25] Importantly, in Xinwa and Others v Volkswagen of South Africa (Pty) Ltd
2003 (4) SA 390 (CC), the Constitutional Court held that ‘p leadings prepared by
laypersons must be construed generous ly and in the light most favourable to the
litigant. The court stressed that lay litigants should not be held to the same standard
of accuracy, skill and precision in the presentation of their case required of
lawyers. In construing such pleadings, regard must be had to the purpose of the
pleading as gathered not only from the content of the pleadings but also from the
context in which the pleading is prepared. Notably, the court stated that f orm must
give way to substance.
[26] It must be stressed that Courts should take consideration and offer a greater
degree of application of the law when dealing with lay litigants. The primary
objective of any court is to uphold justice and ensure that all parties are treated
equally. This must not be confused to mean that a lay litigant must be assisted in
regard to substance of their matter or for that matter , that a lay litigant must have
the Court assist them in their matter . What this means is that the court can aide a
lay litigant in regard to rules of court and offer an explanation of the rules. This
cannot be construed to be prejudicial to the party being represented or the opposing
party. For a Magistrate not to apply the rules correctly an d subsequently not
explain the rules t o a lay litigant is tantamount to a miscarriage of justice. The
Constitution demands that all persons have access to justice and that the
administration of justice be conducted impartially.
[27] The effect of the Magistrate’s Order was overreaching in that it punitively
punished an unrepresented litigant, thereby delaying the finalisation of the matter
and requiring the Appellant to prosecute an appeal at great stress, costs and delay.
[28] I am of the firm view that the Magistrate erred in not taking cognisance of
Rule 60A (3) which allows any litigant an opportunity to rectify defective or
irregular pleadings.
[29] This was raised with the First Respondent, who represented himself as an
attorney with appearance rights in the High Court. The First Respondent conceded
that Rule 60A (3) was applicable and that it could have and should have been
applied. In these circumstances, it stands to reason t hat the correct approach to
have been adopted by the learned Magistrate was to have declared the Appellant’s
particulars to be irregular for non-compliance with the rules, and to have made
additional orders directing the Appellant to amend his particulars within a
prescribed period . If this happened and the Appellant did not comply with the
order, then it was for the First Respondent to have instituted an application to
dismiss the Appellant’s action for failure to comply with the order in terms of Rule
60A application.
[30] The learned Magistrate’s approach in both applications was draconian,
unfair, and resulted in substantial prejudice and hardship to the Appellant . The
order of the Magistrate in terms of Rule 60A in the first application and in the
second application did not provide the Appellant a period of time to cure the
defective pleading. It only stated that summons is set aside. These issues could
have and should have been avoided. In my view, Magistrates should be mindful of
the consequence and effects of orders they make.
[31] This Court accepts that the Rules of Court must be adhered to and respected,
however, such Rules must be administered in the interests of justice and fairness.
To have closed the door on the Appellant does not equate to either fairness or
justice. In Federated Trust Ltd v Botha 1978 (3) SA 645 (A) at 654D, Van Winsen
AJA, stated th at the court does not encourage formalism in the application of the
Rules. The Court noted that the R ules are not an end in themselves to be observed
for their own sake. They are provided to secure the inexpensive and expeditious
completion of litigation before the courts.
[32] Meanwhile, in Msimango v Peters (2021/A3026) [2022] ZAGPJHC 418, the
Appeal Court in its judgment highlighted the conduct of the learned Magistrate and
stated that practitioners would do well not to overlook Rule 1 which is the
‘purpose and application of Rules’. It provides as follows:
‘[a] The purpose of these rules is to promote access to the courts and to ensure that the
right to have dispute that can be resolved by the application of law by a fair public
hearing before a court is given effect to.
[b] These rules are to be applied so as to fa cilitate the expeditious handling of disputes
and minimisation of costs involved.’
[33] As explained above, t he Appellant informed the Court that he was unaware
that he could have amended the particulars of claim subsequent to receiving the
order. He reas onably believed that the action was dismissed. This is exactly what
he believed in regard to the first action, when the Rule 6 0A Notice by the
respondent was upheld by the same Magistrate. He further submitted that if he had
been informed, he would have amended his pleadings to comply with the court's
rules. The Court accepts this submission from the Appellant.
[34] It is my firm view that the learned Magistrate failed to exercise his discretion
judicially and that the order granted in the court a quo is incorrect and ought to be
varied.
Order
[35] Consequently, given all these considerations, I propose that the following
order be granted:
35.1 The Appeal is upheld;
35.2 The judgment of the magistrate in the Court a quo is set aside and replaced
as follows:
35.3 The Appellant’s particulars of claim are declared to be an irregular step, in
that it is vague and embarrassing, and it does not detail sufficient
particularity;
35.4 The Appellant is given 15 court days from the date of this order within
which to amend his particulars of claim and to subsequently serve the
relevant amended pages on the Respondent s in terms of the Magistrates
Court Rules;
35.5 In the event that the Appellant fails to amend his particulars of claim within
the time period set out above, the Respondent s shell be entitled to institute
an application to have the Appellant’s action dismissed;
35.6 The costs of the Rule 60A(2) application shall be costs in the cause.
35.7 The Respondents are ordered to pay for all of the Appellant’s disbursements
incurred in the prosecution and hearing of the appeal, such costs to be taxed
or agreed.
_____________________________
PATHER AJ
ACTING JUDGE OF THE HIGH COURT
I agree and it is so ordered
_____________________________
LEKHULENI J
JUDGE OF THE HIGH COURT
Appearances
For Appellant: Mr Leslie Van Der Linde (In person)
For the Respondents: Ben Groot Attorneys Inc.
Mr D B Groot