REPUBLIC OF SOUTH AFRICA
IN THE HIGH C OURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
Case Numbe r: 2023-060430
(1) R EPORT ABLE : NO
(2) OF INTEREST TO O THER JUDGES : YES
(3) REVISED : YES
DATE : 26 November 2025
S IGNATU
In the ma tter between:
K MALAO INCORPORATED
KABELO PHILEMON MALAO
and
. ELDORETTE DE LANGE
STEPHAN GULDENPFENNIG
First Applicant
Second Applicant
First Responden t
Second Respon dent
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JUDGMENT
D van den Bogert AJ
[1] The central issue in this case is whether the late delivery of a declaration
constitutes an irregular step.
[2] The respondents are two practicing advocates and members of the Pretoria
Society of Advocates. In their action, which has the same case number as the
present rule 30 application, the respondents are the plaintiffs. The applicants in
this rule 30 application, are the defendants in the action with this case number .
[3] This is an application in terms of rule 30 of the Uniform Rules of Court. The
applicants claim that the first and second respondents' declaration constitutes an
irregular step.
[4] The respondents, in return, brought a conditional condonation application. The
condonation application was brought subject thereto that this court finds that the
rule 30 application succeeds.
[5] I proceed to deal to some extent with the chronological exchange of process in
this case. This action was commenced by means of a simple summons, which
was issued on 22 June 2023. In the simple summons the first respondent claims
R710,415.59 for professional services rendered to the first applicant. She acted
as junior advocate with the second respondent, who is a senior advocate. The
second respondent claims R1 ,044,850.00.
[6] The summons was served on 21 July 2023, and the two applicants entered an
appearance to defend on 28 July 2023. Simultaneously (i.e., on the same day),
being 28 July 2023, the applicants, as the defendants took exception to the
plaintiffs' simple summons.
[7] On 9 November 2023, the applicants withdrew their exception. On 16 February
2024 , the respondents, as the plaintiffs, delivered their declaration.
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[8] This was followed by the applicants notice to remove a cause of complaint, which
is dated 26 February 2024. I assume for purposes hereof that it was delivered
on the same day. The crux of the complaint is that the declaration was not
delivered within 15 days after delivery of the notice of intention to defend, as
envisaged in rule 20. It should be assumed that this was probably meant to be
15 days after the withdrawal of the exception. Surely, the applicants could not
deliver a declaration in the face of a pending exception. Be that as it may , the
complaint is that the declaration was not delivered within 15 days as envisaged
in rule 20, and that the delivery of the declaration therefore constitutes an
irregular step.
[9] This is premised on the wording of rule 20(1) which stipulates that:
"In all actions in which the plaintiff's claim is for a debt or liquidated demand and
the defendant has delivered notice of intention to defend, the plaintiff shall,
except in the case of a combined summons , within 15 days after his receipt
thereof, deliver a declaration."
[1 0] Relying on the word "shall" in rule 20, the applicants argue that the 15-day period
is peremptory and delivery outside the 15-day period constitutes an irregular
step, unless accompanied with a condonation application.
[11] The respondents reacted to the irregular step notice with a letter dated 1 March
2024, claiming that the rule 30 notice does not have merit and insisting that the
rule 30 notice be withdrawn, alternatively enrolled for adjudication thereof.
Consequently, and on 25 March 2024, the present rule 30 application was
launched. It is opposed. In addition, several months later the respondents,
subject to it being conditional, as referred to above, applied for condonation. This
they did only on 30 June 2025. The condonation application is also opposed.
[12] The applicants argued in court that the condonation is not properly before me ,
[12] The applicants argued in court that the condonation is not properly before me ,
b e cause the res pond e nts h a d not e nrolle d it by m ean s of a n o tice of set down .
This submission however goes against the spirit of the applicants own answering
affidavit in the condonation application where they insist that the two interlocutory
applications be heard simultaneously.
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[13] It would, in any event, not make any sense to separate the rule 30 application
from the condonation application. Logic dictates that these two are inextricably
intertwined. Given my findings hereunder, however, the dispute on whether the
condonation application is before me or not, becomes irrelevant.
[14] I invited counsel for both parties in court to address me on the impact of the case
of Woolf v Zenex Oil (Pty) Ltd 1999 (1) SA 652 (W). I expressed my then prima
facie view that case could be dispositive of the present application. The issues
in that case are almost identical to the issues in the present rule 30 application.
[15] I deal with some of the facts in that case. On 24 September 1997, the
Johannesburg High Court, given that an application before it could not be
resolved on the papers, ordered that such application be referred to trial on the
basis that the notice of motion will stand as the summons . It was further ordered
that a declaration be delivered within one month from the date of that order.
[16] The declaration was not delivered within the one-month period. The following
year, on 29 May 1998, relying on the failure to deliver the declaration as directed
by the court order, the defendant, as applicant, launched an application wherein
he sought an order that the action be dismissed with cost. That application was
opposed. In its answering affidavit, the respondent reserved the right to advance
legal argument on the procedure adopted but also delivered a notice of motion
seeking condonation for the late delivery of the declaration. The respondent also
delivered its out of time declaration.
[17] The Johannesburg Court found that, by referring the case to trial, the normal
rules for the exchange of pleadings apply. The court says the following at page
654:
"Rule 26 provides that a party who fails to deliver 'a replication or subsequent
pleading within the time period stated in Rule 25 shall be ipso facto barred'. The
pleading within the time period stated in Rule 25 shall be ipso facto barred'. The
Ru/g procggds to providg tha t 'if any party fails fo dg/ive r any othe r pleading within
the time laid down in these Rules or within any extended time allowed in terms
thereof, any other party may by notice served upon him require him to deliver
such pleading within five days of the day upon which the notice is delivered'.
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Regard being had to the provisions of Rule 6(5)(g) alluded to above, the order
that the declaration was to be filed within one month is a time period 'laid down
in these Rules' (Rule 26). Furthermore, the order that the declaration be filed
within one month is an 'extended time allowed in terms' of the Rules (Rule 26).
On either basis, it is apparent that Rule 26 has to be complied with and a notice
of bar has to be served requiring the party in default of delivering a declaration
to do so within five days after the date upon which the notice of bar is delivered.
The Rules are designed to facilitate expeditious ventilation of a dispute at as little
financial cost as possible. This is achieved by the delivering of a notice of bar
followed, in the event of continued inaction, by an application of absolution rather
than the delivery of an application in the present matter."
[18] In this case the declaration was delivered in terms of the provisions of the rules,
being rule 20, and it was done absent a prior notice of bar. This means that the
respondents acted of their own accord by delivering the declaration, which was
the natural subsequent step to prosecute their action. All that the rule 30 process,
engaged upon by the applicants, achieved, was to delay the inevitable delivery
of a plea. Had a plea been delivered, the case would have by now been ripe for
trial already.
[19] The Woolf-case above was followed in Standard Bank of SA Ltd v Van Dyk
2016 (5) SA 510 (GP) in paragraph 5.
[20] Unless manifestly wrongly decided, I am bound by these decisions. Rule 26
stipulates that only where a replication is not delivered within the time stated in
rule 25, a party shall be ipso facto barred. In respect of any other pleading, the
rule stipulates and I quote:
"If any party fails to deliver any other pleading within the time laid down in these
rules or within any extended time allowed in terms thereof, any other party may
rules or within any extended time allowed in terms thereof, any other party may
by notico s0rve d upon hirn, re quire hirn fo dgJiver suc h pleading wifhin five days
after the day upon which the notice is delivered. Any party failing to deliver the
pleading referred to in the notice, within the time therein required, or within such
further period as may be agreed between the parties, shall be in default of fifing
such pleading, and ipso facto barred .... "
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[21] The rule is apparent. Where a party fails to comply with seemingly peremptory
directives in the rules (i.e., even where the word "shall'' is utilised) the other party
must first deliver a notice of bar, failing which the non-complying party is not
barred from pleading.
[22] As an example, rule 22 also requires that where a defendant has delivered a
notice of intention to defend, he shall within 20 days after the delivery of such
notice, deliver a plea. It is therefore peremptory for a defendant to deliver a plea
within 20 days after he has delivered a notice of intention to defend. If he fails to
do so, he is however not automatically barred to do so because the plaintiff must
first deliver a notice of bar.
[23] Not being under the constraint of a bar, a party may deliver its subsequent
pleading, except for a replication, at any time prior to being barred, and no
condonation is required, or no extension of time application as envisaged in rule
27 is necessary.
[24] Accordingly, the applicants cannot succeed with their rule 30 application and it
must be refused.
[25] Both parties sought punitive cost orders against each other, premised on
complaints of ma/a tides and complaints of dilatory tactics. I am not inclined to
grant a punitive cost order. The parties hold differing views on the interpretation
of the rules. Because of their divergent views, they approached this court to
adjudicate upon the correct interpretation of the rules.
[26] Where parties have differing views, and seek the court's adjudication upon their
dispute, it can never be regarded as ma/a fide. It is not vexatious. It is an
everyday occurrence that parties differ either in law, or in procedure, or on the
facts of a case and approach a court to resolve that dispute. That constitutes
bona fide conduct. I therefore refuse to consider granting a punitive cost order.
[27] I asked counsel for the respondents this. Should I find in the respondents' favour
[27] I asked counsel for the respondents this. Should I find in the respondents' favour
on the issue of the rule 30 application, whether the respondents would still be
justified in seeking a costs order for their condonation application. This I asked,
bearing in mind that the condonation application, considering the legal position
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is wholly unnecessary. It does not justify a cost order. The fact that the
respondents were over cautious in bringing a condonation application, does not
justify that the applicants must pay for the respondents over cautiousness. This
the respondents conceded.
[28] In the premises, and in respect of the condonation application, there shall be no
order as to cost. In respect of the rule 30 application, the applicants must bear
the costs.
[29] I issue the following order:
( 1) The applicants' rule 30 application is refused.
(2) The applicants shall pay the cost of the rule 30 application, such cost to
include the cost of counsel on scale C.
(3) In respect of the condonation application, there is no order as to costs.
ACTING JUDGE
HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
This Judgment was handed down electronically by circulation to the parties' and
or peirlicx,· ,op re,5ar,leJlivoa by an 1eJil and by bcring uploaciGd to Oa;:;o/...ino;;;, Tho
date and time for the hand down is deemed to be 1 0h00 on 26 November 2025.
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Appearances
Counsel for applicants: Adv A Masombuka
Instructed by: K Malao Incorporated
Ref.: K Malao
Counsel for respondents: P Oosthuizen
Instructed by: Tingtinger Incorporated
Ref: GUL 1/0002/LB
Date of Hearing: 24 November 2025
Date of Judgment: 26 November 2025
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