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2026
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[2026] ZAGPJHC 186
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First Mile Properties Ikhayalethu (Pty) Ltd and Others v SA Retail Properties (Pty) Ltd and Another (2024/112906) [2026] ZAGPJHC 186 (2 March 2026)
REPUBLIC OF SOUTH
AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA,
GAUTENG LOCAL
DIVISION, JOHANNESBURG
Case No: 2024/112906
(1)
REPORTABLE:
NO
(2)
OF
INTEREST TO OTHER JUDGES: NO
(3)
REVISED
In
the matter between:
FIRSTMILE PROPERTIES
IKHAYALETHU
(PTY) LTD
First Applicant
FIRSTMILE
PROPERTIES
ONALERONA
(PTY) LTD
Second Applicant
And
SA
RETAIL PROPERTIES (PTY) LTD
First Respondent
AFHCO
HOLDINGS (PTY) LTD
Second Respondent
In Re:
SA RETAIL PROPERTIES
(PTY)
LTD
First Applicant
AFHCO
HOLDINGS
(PTY ) LTD
Second Applicant
and
FIRSTMILE PROPERTIES
IKHAYALETHU
PTY LTD
First Respondent
FIRSTMILE PROPERTIES
ONALERONA
PTY LTD
Second Respondent
JUDGMENT
MIA J:
[1] This is an
interlocutory application in terms of Rule 30 of the Uniform Rules of
Court (the Rules). The applicants seek
an order setting aside a
supplementary affidavit delivered by the respondents in the main
application on the basis that it constitutes
an irregular step.
[2] The
interlocutory application arises within the main application
instituted by the respondent on 4 October 2024. In that
application
the present respondents sought payment of R9 269 401.63
together with an order declaring certain immovable
properties
especially executable. The main claim is based upon a Vendor Loan
Agreement concluded pursuant to a sale of immovable
property and
secured by a surety mortgage bond. The respondents allege that the
applicants breached the loan agreement and are
indebted for the
amount claimed.
[3] The respondents
referred to annexures in the founding affidavit and omitted to attach
the relevant annexures referred
to. The applicants in the present
application did not deliver an answering affidavit on the merits in
the main application. They
delivered a notice in terms of Rule
6(5)(d)(iii) raising points of law. One of the points raised relates
to paragraph 16.1 of the
respondents founding affidavit, referring to
annexures which were not attached. The applicant in the present
matter held the view
that without the annexures there was no evidence
of performance on the papers.
[4] In response,
the respondents delivered a supplementary affidavit on 6 November
2024. The deponent thereto explains that
the three annexures referred
to had been erroneously omitted and attached them to the papers. The
respondents stated that
no new facts were introduced by the
supplementary affidavit. It merely cured an omission. No further
explanation was proffered
regarding the omission.
[5] The present
applicants contend that the delivery of the supplementary affidavit
was without leave of the court and thus
constitutes an irregular step
and should be set aside. They instituted the present application in
terms of Rule 30 on 6 December
2024.
[6]
The question for
determination is whether the delivery of the supplementary affidavit
without leave of the Court constitutes an
irregular step liable to be
set aside under Rule 30. More specifically, the issues are:
Whether
the delivery of the supplementary affidavit was procedurally
irregular?
Whether
the applicants have established prejudice? and
Whether,
in the exercise of its discretion, the Court ought to set the
affidavit aside?
[7]
Rule 30 provides a mechanism by which a party may apply to set aside
an irregular or improper step of its opponent. The
application of the
rule was not intended to encourage technical obstruction of
litigation. It seeks to prevent procedural prejudice.
An applicant
must show prejudice to succeed with a Rule 30 application. In
Consani
Engineering (Pty) Ltd v Anton Steinecker Maschinenfabrik GmbH
,
[1]
the Court emphasised that prejudice is a prerequisite for relief.
That principle has been consistently affirmed.
[8] In motion
proceedings, parties are generally confined to three sets of
affidavits: founding, answering and replying. Any further
affidavits
may be delivered only with the leave of the Court. However, the Court
retains a discretion to admit further affidavits
where the interests
of justice so require. This discretion is broad. The guiding
consideration is fairness between the parties
and the proper
ventilation of the issues.
Was the Supplementary
Affidavit Irregular?
[9] The respondent
delivered the supplementary affidavit after the applicants had filed
a Rule 6(5)(d)(iii) notice raising points
of law. The affidavit
was not accompanied by an application for leave nor by a formal
application for condonation. Strictly
speaking, that constitutes a
procedural irregularity. Nevertheless, not every irregularity
justifies the setting aside of a step
under Rule 30. However, the
nature and effect of the affidavit are critical. This is determined
having regard to the prejudice
upon the applicant by the
supplementary affidavit.
[10] The supplementary
affidavit explains that annexures referred to in the founding
affidavit were omitted in error and attaches
those documents. The
respondents confirm in their heads of argument and during submissions
that no new facts were introduced and
that the purpose was solely to
place the omitted annexures before the Court.
[11] The supplementary
affidavit does not introduce a new cause of action or fresh factual
allegations. It attaches annexures expressly
referred to in the
founding affidavit but omitted when the papers were filed. The
omission was an oversight rather than one of
substance. The
respondents’ case remains unchanged.
Prejudice
[12] The determining
factor is then whether the applicants suffered prejudice. The
applicants contend that the respondents have
strengthened their case
and were not entitled to do so after the delivery of the Rule
6(5)(d)(iii) notice. After the applicant
filed the Rule
6(5)(d)(iii) notice the matter was ready to be set down for hearing.
The respondent was not permitted to file a
further affidavit without
leave of the Court. In the absence of an answering affidavit the
Court may determine the matter on the
points of law.
[13]
The applicants placed reliance on the dictum of the Supreme Court of
Appeal in
Hano
Trading CC v JR 209 Investments (Pty) Ltd and Another
[2]
,
where the Supreme Court of Appeal said:
“
Should a litigant
decide to proceed by way of application, rule 6 of the Uniform Rules
of Court applies. This rule sets out the
sequence and timing for the
filing of the affidavits by the respective parties. An advantage
inherent in application proceedings,
even if opposed, is that it can
lead to a speedy and efficient adjudication and resolution of the
disputes between parties. Unlike
actions, in application proceedings
the affidavits take the place not only of the pleadings, but also of
the essential evidence
which would be led at a trial. It is accepted
that the affidavits are limited to three sets. It follows thus that
great care must
be taken to fully set out the case of a party on
whose behalf an affidavit is filed. It is therefore not surprising
that rule 6(5)
(e)
D provides that further affidavits may only
be allowed at the discretion of the court.”
[14] I do not
accept that depiction that the respondents have “strengthened”
their case with filing of the supplementary
affidavit. The annexures
were incorporated by reference in the founding affidavit. Their
attachment does not alter the pleaded
case but completes the record.
[15] I am mindful
of the applicants’ position that they are not afforded an
opportunity to address the material in the
annexures and that without
the annexures the respondents have not made out a proper case. They
maintain that to permit the affidavit
prejudices the applicants who
are not afforded an opportunity to address the material in the
supplementary affidavit. The affidavit
can thus only be permitted
with leave of the court they contend. It is helpful for the
proper deliberation of the matter
that all relevant facts are placed
before the court. In this matter, I agree with the Court’s
observation in
Louw v Grobler and another
at paragraph [18]
that :
The
purpose of the uniform court rules is to regulate the litigation
process, procedures and the exchange of pleadings. The entire
process
of litigation has to be driven according to the rules. The rules set
the parameters within the course of litigation has
to proceed. The
rules of engagement, must, therefore, be obeyed by the litigants.
However, dogmatically rigid adherence to the
uniform court rules is
as distasteful as their flagrant disregard or violation. Dogmatic
adherence, just like flagrant violation,
defeats the purpose for
which the court rules were made. The prime purpose of the court rules
is to oil the wheels of justice in
order to expedite the resolution
of disputes. Quibbling about trivial deviations from the court rules
retards instead of enhancing
the civil justice system. The court
rules are not an end in themselves.
[3]
[16] The view
expressed in
Louw
above is applicable to the present facts
before me.
[17] In my view,
the appropriate remedy is not to strike out the supplementary
affidavit but to regulate the further conduct
of the proceedings to
eliminate any possible prejudice. This will address the uncertainty
that the applicants complain about and
afford them an opportunity to
file an affidavit in response to the respondents’ case on the
papers. It cannot be ignored
that the annexures were referred to in
the founding affidavit. The respondents’ case is formulated
based on those annexures.
The omission was one of attachment, not
substance.
[18] The applicants
elected not to deliver an answering affidavit on the merits but to
raise legal points only. They are not precluded
from seeking leave to
deliver further affidavits if necessary to address the annexures. The
disadvantage complained of by the applicants
is technical in nature
and the disadvantage relating to uncertainty can be addressed if they
are permitted to file an affidavit.
The annexures do not introduce
new facts that are unknown to them. There is no assertion that they
are unable to respond to them
if required.
In these circumstances,
the prejudice alleged is technical rather than real.
The Court’s
Discretion
[19] Even if the delivery
of the supplementary affidavit was irregular in a formal sense, the
Court retains a discretion to admit
it or to set it aside. The
Court’s discretion is accepted by the applicant. Courts are not
keen to strike out an affidavit
which would impede the proper
determination of the real issues between the parties, where no
material prejudice has been shown.
It is in the interests of justice
that the dispute is fully ventilated on the merits rather than on
procedural technicalities.
[20] In this matter,
setting aside the supplementary affidavit would serve no substantive
purpose. It would merely increase the
costs if the respondents had to
apply formally for leave to introduce the same documents. The purpose
of the rules is not to cause
a delay finalisation and to incur
additional costs. It is proper to permit the supplementary affidavit
to stand, to grant the applicants
leave to file an answering
affidavit in response and a reply thereto which places the
application back on track allowing the Court
determining the matter
to consider the complete record and the merits.
[21]
W
here
there is no substantial prejudice and the supplementary affidavit
merely cures an omission, the
interests
of justice are best served by allowing the supplementary affidavit to
stand and granting the applicants leave to file
a further answering
affidavit in the main application.
[22] Both counsel
sought costs permitting the costs of senior counsel. I disagree with
the respondent that punitive costs
are appropriate. It is appropriate
that these costs shall stand over and be costs in the main
application.
[23] Consequently I
make the following order:
Order
The
Rule 30 application is dismissed.
The supplementary
affidavit delivered on 6 November 2024 is accepted as part of the
record in the main application.
The
applicants in the Rule 30 application are granted leave to deliver a
further answering affidavit in the main application,
limited to
addressing the annexures attached to the supplementary affidavit.
Such
further answering affidavit shall be delivered within 15 days of the
date of this order.
The
respondents in the main application shall be entitled to deliver a
replying affidavit, if so instructed, within 10 days thereafter,
limited strictly to matters raised in the further answering
affidavit.
The
costs of the Rule 30 application shall be costs in the main
application.
S C MIA
JUDGE OF THE HIGH
COURT OF SOUTH AFRICA
GAUTENG LOCAL
DIVISION, JOHANNESBURG
Appearances:
On
behalf of the applicant
:
Adv
JPV McNally SC
Instructed
by
: Brian Kahn Inc
On
behalf of the respondent
: Adv. P Daniels SC and A Kohler
Instructed
by
: Cliff Dekker Hofmeyer Inc
Date of
hearing
: 26 February 2026
Date of
judgment
: 2 March 2026
[1]
1991
(1) SA 823
(T) at 824G–H
[2]
2013
(1) SA 161
(SCA)
[3]
Louw
v Grobler and another (3074/2016)
[2016] ZAFSHC 206
(15 December
2016), para [18].