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[2026] ZAGPJHC 239
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Capitec Bank Ltd v V P Group (Pty) Ltd (2025-225132) [2026] ZAGPJHC 239 (6 March 2026)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, JOHANNESBURG
Case Number: 2025-225132
(1)
REPORTABLE: YES
(2)
OF INTEREST TO OTHER JUDGES: YES
(3)
REVISED: NO
DATE
06/03/2026
SIGNATURE
In
the matter between:
CAPITEC
BANK
LTD
Applicant
and
V
P GROUP (PTY)
LTD
Respondent
JUDGMENT
Summary: Late
delivery of answering affidavit after matter had been set down,
respondent not entitled as of right to deliver
an answering affidavit
at any stage before the hearing without seeking condonation.
HORN AJ
[1]
On 2 March 2026, I granted the following
order:
1. The
respondent is placed under provisional winding-up in the hands of the
Master.
2.
A rule nisi is issued, calling on all interested persons to advance
reasons, if any, why this court should
not make the provisional
winding-up order final on 4 May 2026.
3.
The rule nisi is to be served:
3.1
on the persons envisaged in section 346A(1) of the Companies Act 61
of 1973;
3.2
on the respondent in terms of the Uniform Rules of Court;
3.3
by one publication in the Government Gazette;
3.4
by one publication in the Citizen and Beeld newspapers;
3.5
on all creditors of the respondent known to the applicant by way of
email or
prepaid registered post.
4.
The costs of this application are ordered to be costs in the
respondent’s liquidation.
[2]
I indicated that I would provide reasons
for the order later. These are my reasons.
[3]
The applicant applied for the winding-up of
the respondent. The applicant claims to be a creditor of the
respondent in an amount
of approximately R27 million in respect of
various credit facilities extended to the respondent.
[4]
The application was served on the
respondent on 25 November 2025. The respondent, through its
attorneys, gave notice of its intention
to oppose the application on
9 December 2025.
[5]
Taking into account the provisions of Rule
6(5)(aa), the respondent’s answering affidavit was due by 19
January 2026. The
applicant agreed to extend the period for delivery
of the answering affidavit until 23 January 2026. The respondent did
not deliver
its answering affidavit within the extended period.
[6]
The applicant accordingly set the matter
down on the unopposed roll. The notice of set down was served on the
respondent’s
attorneys on 10 February 2026, indicating that the
matter had been set down for hearing on 2 March 2026.
[7]
On 17 February 2026, the respondent’s
answering affidavit was served. The affidavit was uploaded to
Caselines on Sunday, 1
March 2026. Later that day, the respondent’s
practice note followed. Counsel for the respondent indicated that he
was not
in a position to attend to the practice note earlier on
account of the fact that he was briefed late. I have no reason to
disbelieve
counsel.
[8]
The answering affidavit was not accompanied
by a condonation application and did not contain any explanation why
the affidavit was
delivered late.
[9]
Counsel for the respondent contended that
no application for condonation or extension of time is required if
the answering affidavit
is served at any time before the hearing. It
was submitted that the proper approach is for the Court to remove the
matter from
the roll for later enrolment on the opposed roll.
[10]
In
support of this submission, respondent’s counsel relied on
Ferreiras
(Pty) Ltd v Naidoo and Another
[1]
and
Pangbourne
Properties Ltd v Pulse Moving CC and Another
.
[2]
[11]
In
Ferreiras
,
the respondent delivered an answering affidavit late. The court, per
Louw J, disregarded the answering affidavit and granted judgment
in
favour of the applicant. The respondent brought an application for
rescission of judgment. The applicant (respondent in the
rescission
application) delivered a Rule 30 notice, contending that the judgment
granted by Louw J was not a default judgment and
the rescission
application was therefore an irregular step. This contention was
premised on the fact that counsel for the party
against whom judgment
was granted was present in court when the order was granted.
[12]
The
matter came before De Villiers AJ for determination of the Rule 30
application. The learned judge concluded that the judgment
was indeed
a default judgment capable of rescission and dismissed the Rule 30
application. But De Villiers AJ went further by stating
no
application for an extension of time or condonation is necessary if
an answering affidavit is served out of time, but before
the
hearing.
[3]
This latter finding
was
obiter
,
for it was not strictly necessary for a proper determination of the
Rule 30 application.
[13]
In
holding that no application for an extension of time or condonation
is necessary if an answering affidavit is served late, but
before the
hearing, De Villiers AJ relied on two decisions. The first is
IBR
Fire Protection CC v Minister of Labour
.
[4]
In that case the applicant contended that the answering affidavit was
delivered late. Thirty days after delivery of the answering
affidavit, the applicant brought an application in terms of Rule 30A,
premised on the respondent’s failure to comply with
Rule 6
insofar as the time period for delivery of the answering affidavit is
concerned. The Court, per Hughes J (as she then was),
concluded that
where the rules provide a particular remedy in particular
circumstances, that remedy should be utilised rather than
the general
remedy for non-compliance in terms of Rule 30A.
[5]
The remedy for an applicant where a respondent does not deliver an
answering affidavit, so the Court concluded, lies in Rule 6(5)(f)
which permits the applicant to set the matter down for hearing. The
Court held that, since the applicant has not initiated Rule
6(5)(f),
the answering affidavit stood.
[6]
[14]
Significantly, in
IBR
Fire Protection CC
, the learned judge
also remarked that there was no indication in the Rule 30A
application that the answering affidavit was delivered
outside of the
extension granted for its delivery. The decision in
IBR
Fire Protection CC
is not authority for
the proposition that a respondent can deliver an answering affidavit
out of time, but at any stage before
the hearing without the need to
seek condonation. The present case is also distinguishable from the
IBR Fire Protection CC
,
because here the applicant did initiate Rule 6(5)(f) by setting the
matter down for hearing.
[15]
The
second authority relied upon by De Villiers AJ in
Ferreiras
is the decision in
Pangbourne
.
[7]
The
Pangbourne
matter came before Wepener J in the opposed motion court. The
respondent delivered its answering affidavit nine days late and the
applicant delivered its replying affidavit 10 months later. The
learned judge concluded that it was not necessary for either party
to
bring a substantive condonation application and that there was no
indication of prejudice to either party. Since all the affidavits
were before court, the learned judge, correctly with respect, held
that it was in the interests of justice that the matter be finalised
and that unnecessary further costs be avoided.
[8]
The decision in
Pangbourne
is also not authority for the proposition that a respondent can
deliver an answering affidavit out of time, but at any stage before
the hearing, without seeking condonation.
[16]
Counsel
for the applicant referred me to the decision of
Waltloo
Meat and Chicken SA (Pty) Ltd v Silvy Luis (Pty) Ltd and Others
.
[9]
In that case, the applicant delivered its replying affidavit late. In
the affidavit, the applicant explained the reasons for the
late
delivery of the affidavit and sought condonation. Poswa J held that
the replying affidavit is not before him until its late
delivery had
been condoned. The learned judge concluded that the Court is not
entitled to consider the content of the replying
affidavit for
purposes of determining condonation.
[10]
[17]
In
Pangbourne
,
the decision in
Waltloo
was criticised and not followed.
[11]
I am in respectful agreement with this criticism. It would be overly
formalistic to insist on a separate affidavit for purposes
of
condonation. The explanation for the late delivery can conveniently
be set out in the affidavit itself. After all, condonation
requires
good cause, which involves, amongst other things, a consideration of
the merits of a party’s case. In the case of
an answering
affidavit, the defences should be contained in that affidavit. There
is no reason why the defences should be duplicated
in a separate
affidavit in support of condonation.
[18]
The
Constitutional Court has held in
Eke
v Parsons
[12]
that the rules of court serve an undeniably important purpose and
cannot be disregarded, but that they are not an end in themselves.
The purpose of the rules is, first, to ensure a fair hearing and,
second, to secure the inexpensive and expeditious completion
of
litigation and to further the administration of justice.
[13]
[19]
In relation to the purpose of the rules
being to ensure a fair hearing, the Constitutional Court has held as
follows:
“
But
for courts to function fairly, they must have rules that regulate
their proceedings. Those rules will often require parties
to take
certain steps on pain of being prevented from proceeding with a claim
or defence. A common example is the rule regulating
the notice of bar
in terms of which defendants may be called upon to lodge their plea
within a certain time failing which they
will lose the right to raise
their defence. Many of the Rules of Court require compliance with
fixed time limits, and a failure
to observe those time limits may
result, in the absence of good cause shown, in a plaintiff or
defendant being prevented from pursuing
their claim or defence. Of
course, all these Rules must be compliant with the Constitution. To
the extent that they do constitute
a limitation on a right of access
to court, that limitation must be justifiable in terms of s 36 of the
Constitution. If the limitation
caused by the Rule is justifiable,
then as long as the Rules are properly applied, there can be no cause
for constitutional complaint.
The Rules may well contemplate that at
times the right of access to court will be limited. A challenge to
the legitimacy of that
effect, however, would require a challenge to
the Rule itself.”
[14]
[20]
The constitutionality of the time periods
set out in Rule 6 has not been challenged before me, and rightly so.
If it were open to
parties in motion proceedings to deliver
affidavits at will, at any stage of the proceedings, litigation will
become chaotic and
unmanageable.
[21]
The suggestion that a respondent can
deliver an answering affidavit at any stage before a hearing, in
disregard for the rules of
court, with a postponement as an
inevitable consequence if it is done shortly before the hearing,
provokes misgivings. Such a practice
would be destructive of the
purpose of the rules to ensure inexpensive and expeditious
finalisation of litigation.
[22]
To the extent that the decision in
Ferreiras
provides authority for the proposition that it is permissible for a
respondent to file an answering affidavit out of time and at
any
stage before the hearing without seeking condonation, the decision is
in my view clearly wrong. I therefore decline to follow
it.
[23]
Counsel for the respondent submitted that
the matter should be removed from the roll and the respondent ordered
to pay the costs.
This, it was submitted, would not cause any
prejudice. I disagree. The applicant will suffer delay. In addition,
the matter has
taken up a place on the roll that could have gone to
deserving, compliant litigants. Judicial resources are strained as it
is.
To allow respondents to manufacture postponements through
non-compliance with the rules adds further strain and causes delays
in
the finalisation of cases. It will also erode public confidence in
the judicial system.
[24]
It
has been held by the Supreme Court of Appeal in
Take
and Save Trading CC and Others v Standard Bank of SA Ltd
[15]
that judicial officers have a duty to the court system, their
colleagues, the public and the parties to ensure that abuse is
curtailed
by, in appropriate situations, refusing to grant a
postponement.
[16]
This was
said in relation to the practice of some practitioners to withdraw
shortly before a hearing in the hope that the case
will be postponed
on account of the fact that the litigant is then unrepresented. In my
view, the principle applies with equal
force to the present case.
[25]
The applicant has made out a proper case in
its founding papers for the provisional winding-up of the respondent
and has complied
with the relevant statutory requirements. In the
result, I granted the order set out at the commencement of this
judgment.
N J HORN
ACTING JUDGE OF THE
HIGH COURT
JOHANNESBURG
For
the Applicant:
W G
Pretorius
Instructed
by Brooks Braadvedt Inc
For
the Respondent:
A J
Reyneke
Instructed
by MSU Inc
Date
of hearing:
2
March 2026
Date
of judgment:
6
March 2026
[1]
2022
(1) SA 201
(GJ).
[2]
2013
(3) SA 140 (GSJ).
[3]
Ferreiras
above at para [18].
[4]
2015
JDR 1839 (GP).
[5]
IBR
Fire Protection above at para [24] and [25].
[6]
IBR
Fire Protection above at para [29].
[7]
Note
2 above.
[8]
Pangbourne
above at para [18] and [19].
[9]
2008
(5) SA 461 (T).
[10]
Waltloo
Meat and Chicken above at para [28] and [29].
[11]
Pangbourne
above at para [14].
[12]
Eke
v Parsons 2016 (3) SA 37 (CC).
[13]
Eke
v Parsons above at para [39] and [40].
[14]
Giddey
NO v J C Barnard and Partners
[2006] ZACC 13
;
2007 (5) SA 525
(CC) at para
[16]
.
[15]
2004
(4) SA 1 (SCA).
[16]
At
para [3].