SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION. PRETORIA
CASE NO.: 24569/20
(1) REPORTABLE: NO
(2) OF INTEREST TO THE JUDGES: NO
(3) REVISED
DATE: 28/11/2025
SIGNATURE:
In the matter between:
SB GUARANTEE COMPANY (RF) (PTY) LTD Plaintiff
[Registration Number: 2006/021576/07)
and
PHENYO LOYISO BENJAMIN NONQANE Defendant
[Identity Number: 6[...])
JUDGMENT
EASTES AJ:
[1] This is an opposed application. The Plaintiff gave Notice of Intention to amend
its Particulars of Claim. The Defendant delivered a Notice of Objection thereto. The
Plaintiff then launched this application in terms whereof, it seeks leave to amend it s
Particulars of Claim. The application is opposed by the Defendant.
[2] For the purposes of this judgment the salient chronology are as follows:
[3] On 8 June 2020, the Plaintiff instituted an action against the Defendant and
the Plaintiffs Summo ns was served on the Defendant's domicilium citandi et
executandi address by way of sheriff on 22 June 2020; and
[4] On 12 October 2021, the Defendant entered an Appearance to Defend to the
instituted action, but failed to deliver a Plea and/or an Exception and/or Notice to
Strike Out within the 20 (twenty) day period allowed for doing so; and
[5] On 24 August 2023 , a Notice of Bar was served, calling upon the Defendant
to deliver his Plea within 5 (five) days from service thereof, failing which the
Defendant shall be in default of filing such Plea and ipso facto barred.
[6] On 19 October 2023 the Defendant served a Plea; and
[7] On 26 March 2024, the Plaintiff proceeded to serve a Notice of Intention to
Amend its Particulars of Claim on the Defendant.
[8] In terms of the Plaintiffs Notice of Intention to Amend, the Plaintiff indicated
that it intends to amend its Particulars of Claim as follows:
"1. By deleting paragraph 3.3 in its entirety and replacing it with a new
paragraph 3.3, to read as follows -
3.3 The Loan Agreement forming the subject matter of this action was
concluded within the above Honourable Court's area of jurisdiction."
[9] On 24 May 2024, the Defendant proceeded to deliver a Notice of Objection, to
the Plaintiffs Notice of Intention to Amend.
[10] The Defendant objected to the amendment on the following grounds:
"1. The Defendant objected to the Plaintiff's first attempt to amend its
Particulars of Claim when it wanted to delete paragraph 3.3 which reads as
follows:
3.3 The immovable property forming the subject matter of this action is
situated within the above Honourable Court's area of jurisdiction.
2. The Defendant objected to the attempt to amend the Plaintiff's
Particulars of Claim through a notice delivered on 16 November 2023.
3. On 26 March 2024, the Plaintiff purported to withdraw its 'Notice of
Intention Amend in terms of Rule 28 filed on Caselines on 26 October 2023'.
4. On the same day, 26 March 2024, the Plaintiff issued the second
unsigned Notice of Intention to Amend the s ame Particulars of Claim, an
exercise that would entail deletion of paragraph 3.1 and its replacement with a
new paragraph reading as follows:
'The loan agreement forming the subject matter of this action was
concluded within the above Honourable Court's area of jurisdiction.'
5. The Defendant vehemently objects to the amendment of the Plaintiff's
Particulars of Claim and the reasons given in objecting to the first attempt still
stand.
6. The Defendant's reasons for objecting to the second attempt to amend
the Plaintiff's Particulars of Claim are as follows:
6.1 The notice issued by the Plaintiff is unsigned which renders it
invalid. It is invalid because of the absence of a signature. A copy is
marked "X" and attached to this notice.
6.2 The Plaintiff is trying to cancel the Defendant's special plea
issued on 19 October 2023 by amending its Particulars of Claim dated
2 June 2020 wherein the Defendant argues that the immovable
property, which is the subject of the Plaintiff's action, is not situated
within the above Honourable Court's area of jurisdiction.
6.3 The Plaintiff is attempting to avoid admitting to the truth that the
location of the immovable property (Erf 9[...]) is Grahamstown in the
Makana Municipality, Division of Elbony, Province of the Eastern Cape
and it is not within the area of jurisdiction o f the above Honourable
Court.
6.4 It is worth noting that the Plaintiff does not dispute the fact that
Court.
6.4 It is worth noting that the Plaintiff does not dispute the fact that
the immovable property is situated outside the area of jurisdiction of the
above Honourable Court as it has provided the property's description in
its Particulars of Claim.
6.5 The Plaintiff's Summons was signed on 2 June 2020 and it only
raised the issue of amending its Particulars of Claim for the first time
three (3) years and four (4) months later and this happened after the
Defendant raised the issu e of a lack of jurisdiction of the above
Honourable Court.
6.6 The Defendant vehemently objects to the Plaintiff's attempt to
incorrect position the above Honourable Court as having jurisdiction to
hear its case through the backdoor.
6.7 Since the immov able property does not fall within the
Jurisdiction of the above Honourable Court, the Plaintiff has to take its
case to the correct court which is the Eastern Cape Division of the High
Court of the Republic of South Africa which is situated in
Grahamstown/Makhanda.
6.8 The Plaintiff has not issued a Notice of Withdrawal of the first
Notice of Bar it issued and yet wants the Defendant to agree to the
amendment of its Particulars of Claim when he is already said to be
ipso facto barred.
7. The Plaint iff is abusing court process by attempting to amend,
withdrawing the Notice of Intention to Amend when challenged and attempting
to amend the same page again.
8. It appears the Plaintiff is on a desperate mission to disregard the
Uniform Rules of the Court."
NO VALID OBJECTION TO THE AMENDMENT:
[10] From the chronology the Defendant was barred from pleading. This is
confirmed by the Defendant in paragraph 6.8 of his Notice of Objection to the
amendment. There were some debate in Court whether or not the Defendant was
barred or whether the bar was uplifted by agreement. The debate was based on a
letter that was written by the Plaintiff's attorney shortly after receiving the plea. In
terms of this letter it was indicated that the Plaintiff was willing to "suspend" the bar
whatever that means. It app ears that no agreement was reached to the effect that
the bar be uplifted by agreement and, accordingly the Defendant remained barred
the bar be uplifted by agreement and, accordingly the Defendant remained barred
from pleading, because the Plaintiff did not consent to the upliftment of the bar. The
Defendant also did not obtain an or der in terms if Uniform Rule 27 that uplifted the
bar.
[11] In Manufacturing Engineering & Related Services Sector Education and
Training Authority v Dr Joseph Qhinaphi Mhlaba (033076/2022) [2023] ZAGPJHC
1039 (18 September 2023), the court held to th e effect that after a party is barred,
that party must if the other party does not consent, apply to court in terms of Uniform
Rule 27 to uplift the bar and, only once that is done, will that party be given an
opportunity to be allowed back and participate in the case.
[12] In Ntoko Charmaine Petunia N. O. v Road Accident Fund (2024/073741)
[20241 ZAGPJHC 1042 (16 October 2024) , the court, held to the effect that where a
Defendant did not launch an application to have a bar uplifted, and neither applied
for condonation for the delivery of a Plea, but instead relied upon the mistaken
proposition that a bar is automatically lifted with the filing of a Notice of Intention to
Amend, such a Defendant made such an election at his, her or its own peril.
[13] If the Defendant, or any Defendant for that matter was barred, and such a
Defendant has not successfully applied for relief uplifting the bar in terms of Uniform
Rule 27, then such Defendant is barred from participating in the case further. Such a
Defendant will be disqualified from pleading and, in this matter before the Court, from
objecting to the Plaintiff's proposed amendment, whilst barred.
[14] In Qhamakoane v Road Accident Fund (19131/2020) /20241 ZAGPPHC 795
(12 August 2024) , the court reasoned di fferently. The Court inter alia found the
following:
"If a party has been barred from pleading, they have the option of bringing an
application in terms of Rule 27 to uplift the bar, but same can also be 'uplifted'
by agreement between the parties. In my view, this does not pertain to a
situation where the Plaintiff, by his conduct, through amending the Particulars
situation where the Plaintiff, by his conduct, through amending the Particulars
of Claim, 'invites' the Defendant back into litigation by re -opening the
pleadings, as the Defendant had been barred to the pre -amendment
pleadings and not to the re -opened and amended pleadings. Therefore, in my
view, it is not necessary for the Defendant to bring an application to uplift the
bar, but through the amendment, attains the right to plead to the amended
Particulars of Claim."
[15] I do not agree with the finding of the court in Qhamakoane. In my opinion the
judgment is wrong on the point in question. If the opposition party does not consent
to the upliftment of the bar, then the only manner in which the barred party can
achieve th e upliftment of a bar is by way of a successful application in terms of
Uniform Rule 27(3).
[16] Therefore, I find that if a Defendant is barred from pleading, and whilst being
barred, a Plaintiff proceeds to give notice of its intention to amend its Pa rticulars of
Claim, that does not automatically uplift the bar, or give the Defendant a right to
participate in the litigation. The parties in this matter appears to have been unaware
of this and proceeded with the litigation, and not addressing the bar issue.
[17] There was never a valid lawful objection to the amendment and. therefore no
reason for the application. In my view the Plaintiff can proceed to apply for judgment
by default. To dismiss the application on that basis will not do justice to the partie s in
this matter. There has already been lengthy delays in this matter. The Defendant
appeared in person and he is a lay person. He travelled from the Eastern Cape to
come and argue the application. This Court therefore proceed to deal with the
application on the basis that the Defendant was not barred, but by doing so, it does
not mean the Defendant is not barred.
THE PLEADING OF JURISDICTION:
[18] In paragraph 3 of the initial Particulars of Claim the Plaintiff averred facts why
this Court has jurisd iction. Based on the specific averred facts, the Defendant
delivered the Defendant's Plea despite being barred as indicated above. In terms of
the plea, the Defendant inter alia attacked the jurisdiction of this Court based
the plea, the Defendant inter alia attacked the jurisdiction of this Court based
squarely on the facts as averre d by the Plaintiff in paragraph 3 of the initial
Particulars of Claim.
[19] The Plaintiff then indicated its intention to amend paragraph 3 of its
Particulars of Claim. The Defendant delivered a Notice of Objection to the proposed
amendment. This ultimately culminated in the opposed application before this Court.
The claim is a contractual claim and the amendment relates only to the pleading of
jurisdiction in the self-standing paragraph 3 of the initial Particulars of Claim.
[20] In High Court litigation there is no obligation on a litigant to in its Particulars of
Claim aver facts in support of jurisdiction as one must do in Magistrates Court
litigation to disclose a cause of action. A High Court is empowered to exercise
jurisdiction over a matter, or to assu me jurisdiction over a matter based upon the
averred particularity in a Particulars of Claim. When dealing with a contractual claim
as in this matter, Uniform Rule 18(6) dictates that the Particulars of Claim must
contain specific particularity, failing which it will be deemed to be an irregular step as
envisaged in Uniform Rule 18(12).
[21] In this case, the Particulars of Claim in paragraphs 4 and 5 complies with
Uniform Rule 18(6) in that it averred what is required by the aforesaid rule and a
copy of the agreement was annexed. It was expressly averred that the loan
agreement was concluded at Pretoria. Ex facie the annexed loan agreement it is
evident that it was signed and concluded by the Defendant in Pretoria. The
Defendant in court during arg ument also conceded that he signed the loan
agreement in Pretoria. There is no objection by the Defendant to the averments in
paragraphs 4 and 5 of the Particulars of Claim.
[22] The agreement was concluded at Pretoria. Pretoria is within this court's
territorial area of jurisdiction. Consequently, this court has jurisdiction to adjudicate
upon the contractual claim in this matter by virtue of Section 21(1) of the Superior
Court Act, Act 10 of 2013, on the basis that the cause of action arose within this
Court Act, Act 10 of 2013, on the basis that the cause of action arose within this
Courts territorial area of jurisdiction [See. Moodley v Nedcor Bank Ltd [2007] SCA 27
(RSA)].
[23] The averred allegations in paragraphs 4 and 5 of the Particulars of Claim is
and was sufficient for jurisdiction, or for this Court to at this stage assum e jurisdiction
over the matter. It was not necessary for the Plaintiff to have embarked upon giving
notice of its intention to amend paragraph 3 of its Particulars of Claim. Paragraph 3
of the Particulars of Claim is superfluous because of paragraphs 4 and 5 thereof. It is
not the Defendants objection in his plea or in this application that the Particulars of
Claim is vague and embarrassing.
AN UNSIGNED NOTICE OF INTENTION TO AMEND:
[24] The Defendant also objected to the amendment on the basis that the Notice
of Intention to Amend that was served and received by him from the sheriff was an
unsigned Notice of Intention to Amend. The Plaintiff has a different view and is of the
view that the Notice of Intention to Amend was indeed signed by the Plaintiff. This is
a trivial issue. It does not take the matter any further. To bring such trivial matter into
play after the lengthy delays already in this matter, will be in neither party's int erest.
There is no prejudice to the Defendant.
THE AMENDMENT WILL DEPRIVE THE DEFENDANT OF A DEFENCE:
[25] The Defendant also objected to the amendment on the basis that if it to be
granted, it will render the Defendant's defence being the attack on th e jurisdiction of
this court academic. This is not so. There is no challenge to paragraph 4 and 5 of the
Particulars of Claim as above.
CONCURRENT JURISDICTION:
[26] The Defendant further objected to the amendment on the basis that this court
does not have jurisdiction, by virtue of the fact that the relevant immovable property
forming the subject matter of the execution order, falls within the territorial area of
jurisdiction of another court. It is common cause that the immovable property is
situated in the Eastern Cape Province.
[27] However, the fact that the immovable property is situated in the Eastern Cape
Province and, therefore within the jurisdiction of another Court, does not mean that
this Court does not have jurisdiction. It is reported in Moodley above that the
Supreme Court of Appeal at paragraph [4] held as follows:
"[4] Following the rescission of the order, the Appellant filed a plea and
counterclaim on 2 February 2004. In his special plea, he alleged that the
Pretoria High Court lacked jurisdiction over the matter because the property
was situated within the province of KwZulu -Natal and also because his
chosen domicilium citandi et executandi was there. The special plea was
clearly bad because the Pretoria High Court obviously had jurisdiction over
the matter on the basis that the cause of action arose there - inexplicably
however, on 31 May 2004, the Respondent withdrew the action and paid the
Appellant's wasted cost." This is therefore also not a basis for opposing the
amendment. (Own Emphasis)
THE LATENESS ISSUE:
[28] Lastly, the Defendant objected to amendment because of the lateness of the
amendment. The action has been ongoing for three years and four months at the
time the objection was delivered. A delay on its own is not necessary a ground for
the refusal of an amendment (see Mabaso v Minister of Police, 1980 (4) SA 310 (W)].
The delay in this matter is not such that the amendment should be refused on that
basis.
CONCURRENT JURISDICTION:
[29] In this matter, another court may ha ve concurrent jurisdiction with this Court.
In Standard Bank of SA Ltd & Others v Thobe jane & Others; Standard Bank of SA
Ltd v Gqurana N.O. & Another, 2021 (6) SA 403 (SCA), the Supreme Court of
Appeal held to the effect that a court is obliged by law t o hear any matter that falls
within its jurisdiction and, a court has no power to exercise a discretion to decline to
hear a matter on the ground that another court has concurrent jurisdiction. A Plaintiff
as the dominus litis party choose whichever forum may have jurisdiction and, he, she
or it cannot be faulted for exercising that available election.
CERTAIN GENERAL PRINCIPLES:
[30] A court hearing an application for an amendment has a discretion whether or
not to grant it and, that discretion must be exercised judicially. The primary object of
allowing an amendment is to obtain a proper ventilation of the disputes between the
parties, to determine the real issues between them, so that justice may be done.
[31] An amendment will inter alia not be allowed if the application to amend is
made mala fide or if the amendment will cause the other party such prejudice or
injustice as ca nnot be cured by an order or costs and, where appropriate, a
postponement. [See MacSteel Tube & Pipe, a division of MacSteel Service Centres
SA (Pty) Ltd v Vowles Properties (Pty) Ltd (680/2020) [2021] ZASCA 178 (17
December 2021)].
[32] In conclusion, the loan agreement relied upon was concluded in Pretoria, and
therefore within this Courts territorial area of jurisdiction. To dismiss the application
at this late stage, on the basis that it was never necessary to have brought the
application, will be i n neither parties interest, and accordingly the Plaintiffs
application is granted.
COSTS:
[33] Turning to the aspect of costs. Uniform Rule 28(9) of the Uniform Rules of
Court inter alia indicates that a party giving notice of amendment in ter ms of subrule
(1) shall, unless the court otherwise directs, be liable for the costs thereby
occasioned to any other party. The court has a discretion when it comes to matters
of costs. The grant of an amendment is an indulgence to the party requiring it a nd,
therefore generally that party is liable to pay the costs.
[34] In this matter the Plaintiff was legally represented. The Defendant a lay
person appeared in person. Because of what transpired in this matter as dealt with
above it is just and equitable that there be no order as to costs.
[35] The following order is issued:
[35.1] The Plaintiff is granted leave to amend its Particulars of Claim as set
out in its Notice in terms of Uniform Rule 28(1) dated and signed 26 March
2024 (Annexure "FA5" to the Founding Affidavit).
[35.2] There will be no order as to costs.
J EASTES
ACTING JUDGE OF THE HIGH COURT
PRETORIA
For Plaintiff:
Adv M Rakgoale
Instructed by: Van Hulsteyns Attorneys
In Person the Defendant:
Phenyo Loyiso Benjamin Nonqane