THE HIGH COURT OF SOUTH AFRICA
GAUT ENG DIVISION, PRETORIA
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED
l~ZIJU _ __.
Date t7
In the matter between:
COMPENSATION SOLUTIONS (PTY) LTD
and
THE COMPENSATION COMMISSIONER
DIRECTOR-GENERAL OF THE DEPARTMENT OF
LABOUR OF THE NATIONAL GOVERNMENT OF
THE REPUBLIC OF SOUTH AFRICA
THE MINISTER OF THE DEPARTMENT OF
EMPLOYMENT AND LABOUR OF THE NATIONAL
GOVERNMENT OF THE REPUBLIC OF
SOUTH AFRICA
JUDGMENT
ELS AJ
INTRODUCTION
CASE NO.: 49156/2021
CASE NO: 56219/2021
Applicant
First Respondent
Second Respondent
Third Respondent
[1] The applicant , in two separate applications (both argued together), seeks
money judgments against the respondents. Although the facts differ slightly,
for the sake of convenience, I will deal with both matters in one judgment.
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For the sake of convenience, I will refer to the applicant ("Compensation
Solutions ") henceforth as "the plaintiff'. I will refer to the respondents
collectively as "the defendants".
[2] During 2021 the plaintiff instituted both actions against the defendants . After
receipt of the plea in each matter, the plaintiff launched two separate
summary judgment applications . Both applications were heard
simultaneously and one judgment was delivered by Ally AJ in those
applications ("the Ally judgment").
[3] The following order was granted by Ally AJ:
"(a) Summary Judgment in case numbers 56219/2021 and 49156/2021
is refused ;
(b) The defendant is granted leave to defend in respect of case
numbers 56219/2021 and 49156/2021 only insofar as a plea of
prescription is to be raised;
(c) The defendant is to file a notice of intention to amend its pleas in
respect of the case numbers mentioned in paragraph (b). within 10
days of this order failing which the plaintiff may approach this court
on papers duly supplemented for orders for summary judgment ;
(d) The defendant is to pay the costs of the applications for condonation
on a party and party scale;
(e) Each party is to pay their own costs in respect of the applications
for summary judgment. "
(the emphasis is my own)
[4] To distinguish between the two matters, I will hencefo rth refer to the matter
with case number 49156/2021 as "matter 49" and to the matter with case
number 56219/2021 as "matter 56".
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MATTER 49
[5] In matter 49 the plaintiff delivered a notice of exception against the special
pleas of prescription .. This exception served before Jacobs AJ, who
delivered judgment on 6 February 2024. The following order was granted :
"1. The exceptions are upheld with costs .
2. Paragraphs 1 to 9 of the defendant's plea dated 14 February 2022
are struck out.
3. The defendants are afforded 20 days from date of this judgment to
file an amendE~d plea or special plea in respect of the defence raised
in paragraphs 5 to 9 of its plea dated 14 February 2022, if so
advised. "
[6] The defendants did not deliver an amended plea in respect of the defence
raised in paragraphs 5 to 9 of its plea dated 14 February 2022 within 20
days from the grantin~1 of the order by Jacobs AJ.
[7] On 2 September 20:24 the plaintiffs delivered a notice of bar on the
defendants wherein the following was stated :
"TAKE NOTICE THAT the PLAINTIFF requires the DEFENDANTS to
deliver their amended plea in respect of the defences raised in
paragraphs 5 - 9 of its plea dated 14 February 2022, as per the court
order of the Honourable Jacobs AJ granted on 6 February 2024 and
attached hereto as Annexure "X".
[8] On 11 September 20.24 the plaintiff launched the application that serves
before me, wherein the plaintiff seeks judgment against the defendants . The
defendants delivered their answering affidavit on 5 November 2024,
whereafter the plaintiff' delivered its replying affidavit on 19 November 2024 .
[9] After the plaintiff had already delivered its heads of argument , and shortly
after the delivery of hieads of argument by the defendants , the defendants
delivered a notice of intention to amend its plea. This was done on 20 June
2025. The defendants then also proceeded to deliver an amended plea on
17 July 2025.
[1 O] The defendants proceeded to deliver the notice of intention to amend and
the amended plea, without seeking condonation or launching an application
for the upliftment of the notice of bar.
[11] In Santam lnsurancEi CO Ltd v Manqele 1975 (1) SA 607 (D) at 609H t-
61 OF it was held that, where an order similar to the order granted by Jacobs
AJ is granted, it is necessary to first deliver a notice of bar, before
proceeding with a request for absolution (or judgment) . In Natal Fresh
Produce Growers' Association and Others v Agroserve (Pty) Ltd and
Others 1991 (3) SA 795 (N) the opposite was held i.e. that it was not
necessary for any deliivery of a notice of bar.
[12] In Standard Bank of SA Ltd v Van Dyk 2016 (5) SA 510 GP the following
was said at paras 4-6:
"[4] The dicta in Natal Fresh Produce must however be considered
in the light of the well-known judgment of the Appellate Division
in Group Five Building Ltd v Government of the Republic of South
Africa (Ministi9r of Public Works and Land Affairs) 1993 (2) SA
593 (A), in which Corbett JA (as he then was), writing for the
court, finally coined the rule applicable as a corollary to
successful exceptions, which is that leave to amend within a
certain period of time, if so advised, must always be granted to a
plaintiff, even where the pleading was set aside on the ground
that it disclosi9d no cause of action. In arriving at this conclusion
Corbett JA (Group Five at 603G to H) specifically disapproved of
the distinction drawn by Hugo J, to which I have referred above,
for the reason that it would lead to the anomaly that it would leave
no room for the grant of leave to amend when an exception is
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successfully taken to the particulars of claim in a combined
summons on the ground that no cause of action is disclosed, a
proposition that was considered to offend the law and the
practice in our courts. As correctly argued by counsel for the
bank, the disapproval of Hugo J 's distinction in Group Five
effectively overrules the judgment in Natal Fresh Produce. It is
interesting to note that the judgment of Harms J (as he then was)
in Princeps (Edms) BPK en 'n Ander v Van Heerden NO en
Andere 1991 (3) SA 842 (T) at 8450 to 8460, which was
delivered after the judgment in Natal Fresh Produce but reported
in the same volume of the South African Law Reports, without a
reference thereto, contradicts the distinction in Natal Fresh
Produce and, as a forerunner thereto , is fully consonant with the
judgment in Group Five.
[5} Rule 26 applies to 'a replication or subsequent pleading within the
time stated in rule 25' and further to 'any other pleading ' which a
party fails to deliver within the time laid down in the rules 'or within
any extended time allowed in terms thereof.'. The application of the
rule was confirmed in two cases, which, by way of background, I
shall briefly refer to. In Beukes v MEG, Agriculture and
Environmental Affairs, Eastern Cape 1999 (4) SA 772 (Tk), in
regard to the plaintiff having failed to deliver the amended
particulars of claim consequent upon a notice to amend to which no
notice of opposition had been filed, Petse AJ (as he then was) held
that the defendant should have invoke d Rule 26 before resorting to
an exception in terms of rule 23. In Woolfv Zenex Oil (Pty) Ltd 1999
(1) SA 652 (W) the plaintiff's failure to deliver a declaration within
the time laid down in the order referring the application for trial, was
held not sufficient to ground the defendant's application for the
dismissal of the action , as the defendant was required to invoke rule
26 in order to place the plaintiff ipso facto under bar. Joffe J
26 in order to place the plaintiff ipso facto under bar. Joffe J
reasoned that the referral for trial was ordered under the provisions
of rule 6(5)(g) and, therefore , clearly with the intention that the rules
of court should apply thereto generally , and, in particular, in regard
to the filing of pleadings . The learned judge concluded that the
intention that the rules of court should apply thereto generally , and,
in particular , in regard the filing of pleadings . The learned judge
concluded that the period laid down for filing of the declaration in
the order is 'a time period ', or on the facts of that matter, 'an
extension thereof, falling within the ambit of 26.
[6] The fundamental question to be extracted from the above cases is
whether the amended particulars of claim in the present instance
can be classified as a pleading . Counsel for the respondent, on a
parity of reasoning in regard to an amendment following upon a
II
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notice of intention to amend in terms of rule 28(1 ), clearly being a
pleading, was driven to concede that the amendment provided for
in the judgment of Jansen J, likewise was a pleading. That being
so, the amended particulars of claim fell into the category of 'any
other pleadings', under rule 26. The respondent, accordingly,
should have invoked rule 26 and waited the bank's continued
inaction thereafter before resorting to an application to dismiss the
action.
[13] I agree with the judgment in Standard Bank of SA Ltd v Van Dyk. I also
find that the same principle applies where it is the defendant that fails to
deliver an amendment.
[14] In matter 49 the plaintiff did deliver a notice of bar, as already indicated.
[15] The defendants have provided no explanation whatsoever for their failure
of more than nine months after the filing of the notice of bar.1 The
defendants simply proceeded by ignoring the notice of bar.
[16) The defendants did not even bother to seek the upliftment of the notice of
bar after the plaintiff delivered supplementary he?tds of argument wherein
the requirement for the filing of an application for the upliftment of the bar,
was emphasized. The defendants also did not give any indication during the
argument of this matter that they intended to seek an upliftment of the bar.
[17] In my view the plaintiff was entitled to proceed with an application for
judgment. The defendants have clearly taken the stance that it was
unnecessary to seek any extension of time, condonation or the removal of
1 The notice of bar was served on 2 September 2024 and the notice of intention to amend on 20 June
2025.
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a notice of bar. In my view, in the absence of an application to do so, it
should be accepted tlhat there is no amended plea before court. It follows
that the plaintiff is entitled to judgment in the amount claimed in respect of
matter 49.
[18] In the replying affidavit an allegation was made that the defendants
~
proceeded to pay ain amount of R118,381.69 after the application for
judgment was delivered. If the defendants indeed made such a payment (or
I
effected any further payments) then the plaintiff would , of course, only be
entitled to recover the amount outstanding. Although I intend to grant
judgment in the amount claimed in the notice of motion, it would still be
necessary for the plaintiff , before issuing any writ of execution, to deal with
the exact amount still owing to the plaintiff in an affidavit in support of a
request for the issuin9 of a writ.
MATTER 56
[19] In matter 56, defendants proceeded to deliver a notice of intention to amend
on 1 August 2023 ("the first amendment"). Although the notice of intention
to amend was delivered one day outside the ten day period contemplated
in the order of Ally AJ, the plaintiff did not take issue with the late delivery of
the first amendment.
[20] The plaintiff deliverecl a notice objecting to the first amendment and the
defendants , in turn, piroceeded to deliver an application for an amendment
based on the notice of intention to amend dated 1 August 2023 .
[21] The application for leave to amend (in respect of the first amendment) was
heard by Potgieter AJ. On 14 May 2024 Potgieter AJ delivered judgment in
the matter and dismissed the application for leave to amend ("the Potgieter
judgment") .
[22] After the Potgieter judgment , the plaintiff proceeded to deliver an application
for judgment on 25 September 2024.
[23] On 20 June 2025 (after both parties delivered heads of argument in the
application for judgment) the defendants proceeded to deliver a further
notice of intention to amend ("the second amendment"). The plaintiff did not
deliver any notice of objection. Consequently the defendants proceeded to
deliver an amended plea on 17 July 2025.
[24] An important distinction between matter 49 and 56 is that, in matter 56 no
notice of bar was ever served.
[25] As a consequence of the second amendment the plaintiff proceeded to
deliver an application for leave to file a supplementary affidavit to deal with
this further development. The defendants , in turn, proceeded to deliver a
supplementary answering affidavit in response to the supplementary
affidavit of the plaintiff. In my view the plaintiff was entitled to deliver a further
affidavit. The defendants did not claim any prejudice to the application for
leave to deliver a further affidavit and proceeded to address the relevant
issues in its own supplementary answering affidavit.
[26) In supplementary heads delivered on behalf of the plaintiff the view was
expressed that the second amendment should be disregarded as "pro non
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scripto ". The main issue to consider in matter 56 is the legal status of the
second amendment. More in particular, it should be conside red whether or
not it was necessary for the plaintiff to file a notice of bar before proceeding
with an application for judgment.
[27] The order granted by Ally AJ made it clear that the defendants were only
granted leave to defend on the issue of prescription. In the application for
leave to amend that served before Potgieter AJ, the defendants raised two
separate prescription issues. The first was based on sections 43 and 44 of
the Compensation for Occupational Injuries and Diseases Act, 130 of 1993
("the prescription based on COi DA"). The second prescription issue was
raised on the basis of the Prescription Act, 68 of 1969.
[28] In paragraph 8 of the Potgieter judgment it was held that the notice of
intention to amend was not an amendment as permitted in terms of the
judgment of Ally AJ, because the amendment attempted to also deal with
the merits . In commenting on this, the following was expressly stated:
"The defendants ' application should, on this ground, be dismissed .
However , it cannot be gainsaid that the abortive amendment also
contains two types of prescription which was indeed something
permitted to be raised in a Notice of Intention to Amend, by Ally, AJ. A
dismissal of the defendants ' present application on the grounds that it
did not comply with the permission granted by Ally, AJ, to apply to
amend the defendants ' plea to raise only Prescription, would,
inevitably lead to another round of an application to amend and
objection s thereto."
[29] In the second amendment the defendants did not persist with the
prescription based on COIDA. The defendants only persist with the
prescription defence based on the Prescription Act.
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[30] The findings of Potgiet,er AJ in respect of the plea of prescription based on
the Prescription Act, is different to the findings in respect of the prescription
based on COIDA. It was not held, as a legal proposition, that the defendants
cannot raise the issuH of prescription based on the Prescription Act. In
paragraph 22 of the Potgieter judgment the following was said:
"[22] In my finding the only ground of objection to the proposed Plea
of Prescription based on the Prescription Act which is worthy
of consideration in proceedings of this nature is the objectio n
that the Speicial Plea falls foul of Gericke v Sack 1978 (1) SA
821 (SCA), i.e. a Plea of Prescription which does not contain
certain details is excipiable and does not disclose a defence ."
[31] In dealing with its find ings relating to the failure of the defendants to raise
the issue of prescription adequately in its first amendment, the following was
said in paragraph 28 of the Potgieter judgment:
"[28] I am therefore , in the premises, constrained to conclude that
the defendants have failed to properly plead prescription
based on the Prescription Act and consequent ly the
amendment, as it now stands , cannot be entertained. The
application to amend the Defendants ' Plea as set out in the
Defendants ' present fourth Special Plea, (i.e. the Plea of
Prescription based on the Prescription Act), is refused with
costs as set out below ."
[32] The emphasising of the words "as it now stands" in paragraph 28 of the
Potgieter judgment , appears from the judgment itself.
(33] After the delivery of the Potgieter judgment, the defendants were effectively
in the same position as they were when the Ally judgment was granted .
Once it is accepted that it was necessary for the plaintiff to first deliver a
notice of bar (if the di9fendants failed to timeously deliver an amendment)
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then it follows that it was still necessary for the plaintiff to do so after the
delivery of the Potgieter judgment.
[34] If it is accepted that the defendants were still entitled to deliver the second
amendment (because no notice of bar was delivered) then it follows that the
second amendment cannot simply be ignored and that the plaintiff is not
entitled to judgment.
COSTS AND THE ORDER
[35] As the successful party in matter 49, the plaintiff is entitled to its costs. I
have considered the request of the plaintiff for costs on an "attorney and
own clienf' scale, but decided not to grant such an order. In my view, the
plaintiff is, however, entitled to counsel's costs on scale C.
[36] In my view there is a basis to deviate from the normal rule that a successful
party be entitled to its costs, regarding matter 56. The defendants delayed
in delivering the second amendment after the delivery of the Potgieter
judgment , for a considerable period. In the exercising of my discretion, I find
that no order for costs should be granted in matter 56.
[37] In the premises I make the following order:
Matter49
1. The defendants are ordered, jointly and severally, the one paying the other
to be absolved , to pay to the plaintiff as follows :
1.1 The amount of R?,913,823.49;
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1.2 Interest on each of the medical invoices set out in annexure "CS1" at the
applicable legal rate calculated from the 51:11 day after the submission date,
to date of final payment;
2. The defendants are ordered to pay the plaintiff's costs, including the cost of
counsel on scale C.
Matter 56
1. The further affidavits delivered by the parties are permitted;
2. The application for judgment dated 25 September 2024 is dismissed ;
3. There is no order for costs.
....
,.---~
APJ ELS
F THE HIGH COURT
DELIVERED : This judgment is handed down electronically by uploading it to the
electronic file of this matter on Caselines.
Counsel for the applicant: EJJ Nel
(in both matters)
Instructed by: VDT Attorneys
Counsel for the respondents : M Makhubele
(in both matters)
Instructed by: The State Attorney
• 1'3 ..
Date of hearing· 4 August 2025
I
~ e of judgmer.it: 3 February 2026
I