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SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
Case Number: 2025-016115
In the matter between:
ELEKANYANI PHUNDULU Applicant
And
LERALLA PHARMACY First Respondent
MOWANA PROPERTIES Second Respondent
VHONANI PATRICK MUDAU Third Respondent
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: NO
Date: 09.03.2026
Signature: Khaba AJ
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WRITTEN REASONS FOR THE ORDER
KHABA AJ
Introduction:
[1] This is an interlocutory application launched in terms of Rule 27 of the Uniform Rules
of Court. The applicant seeks two interrelated orders: first, condonation for its non-
compliance with Rule 25(1) read with Rule 26 of the Uniform Rules of Court and
secondly, the upliftment of the automatic bar imposed on its replication dated 24 June
2025. This application was heard in the t rial interlocutory roll-on 25 February 2026.
This application was opposed by the second respondent. The first and third
respondents did not oppose the application and have taken no part in these
proceedings.
[2] On 25 February 2026, I granted an order dismissing the applicant’s condonation
application with costs on an attorney and client scale, such costs to be paid by the
applicant’s attorney of record. Aggrieved by this decision, on 05 March 2026 the
applicant’s attorneys filed a notice in terms of Rule 49(1)(c) requesting written
reasons to be provided in respect of the order that I granted. These are the reasons
for the order.
[3] Before turning to the merits of the application, it is necessary to set out the factual
matrix within which this dispute arises. The factual background is largely common
cause, although their significance is contested between the parties.
The Parties and the Factual Background:
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[4] The applicant is Mr. Elekanyani Phundulu, an adult male businessman, currently
residing at 7[ … ] N[…] Street, P […] N[…] , C […] 1[…] . According to the founding
affidavit, the applicant holds himself out as a representative of Endzani Amalgamated
Group (Pty) Ltd, a company that allegedly entered into arrangements with the first
and third respondent concerning the business rescue of Leralla Pharmacy.
[5] The first respondent is Leralla Pharmacy , a company duly registered in terms of the
company laws of the Republic of South Africa. It conducts business as a pharmacy at
Shop Number 2[ …] , T […] P[… ], E […] Gauteng. The firsts respondent has not
defended the main action
[6] The second respondent is Mowana Properties, a property management company
registered with the Property Practitioners Regulatory Authority. It operates in the
general property market with its principal place of business at 1[…] R[…] Road, S[…] ,
Johannesburg.
[7] The third respondent is Mr. Vhonani Patrick Mudau, an adult male businessman and
the managing director of Dream Quest, trading as Leralla Pharmacy. The third
respondent is cited in his personal capacity and as representatives of the first
respondent. Much like the first respondent, the third respondent has not defended the
main action.
The following chronology, distilled from the documents filed on record by the execution and
forms part of the factual matrix of this dispute:
The Factual Background to the Litigation:
[8] On 06 February 2025, the applicant instituted an action against all three respondents
by way of combined summons. The applicant claims damages in the amount of
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R4 467 196 74, allegedly arising from the breach of an agreement entered into on 29
August 2019.
[9] The material averments in the applicant’s particulars of claim may be summarised as
follows: On 23 August 2019, the applicant , together with the first and second
respondents entered into a verbal agreement. The first respondent was represented
in these negotiations by the third respondent. The material terms of the alleged
agreement were that: The applicant would inject capital into the first respondent’s
business; The applicant would receive a shareholding or ownership interest in the
first respondent; The applicant would assume responsibility for rental payments and
day-to day operational expenses of the first respondent; The applicant injected an
amount of R 2 567 865.00 towards rental and the day -to day running of the first
respondent
[10] The applicant alleges that the first and third respondent breached the material terms
of the agreement by ceasing to trade without informing the applicant, and by failing to
transfer any shares or ownership interest to the applicant as contemplated. On 19
March 2025, the second respondent entered an appearance to defend the action.
The first and second respondents took no steps to defend the action.
[11] On 30 April 2025, the second respondent delivered its plea, which encompassed
both plea over the merits and special plea of misjoinder. The special plea raised
fundamental questions about the propriety of joining the second respondent as a
party to the proceedings. In essence, the second respondent contented that: The
applicant had failed to demonstrate that the second respondent has direct or
substantial interest in the subject matter of the litigation; The second respondent was
at all material times merely providing rental space to the first respondent in terms of
the lease agreement concluded between the second respondent (as agent for the
GEPF) and the third respondent (as representative of the first respondent); The lease
GEPF) and the third respondent (as representative of the first respondent); The lease
agreement was concluded exclusively between the second respondent and the third
respondent, and thus the second respondent had no legal relationship with the
applicant that could give rise to the liability; The second respondent did not require
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consent from the applicant to effect the termination of the lease agreement, as the
applicant was not party to the agreement.
[12] On 24 June 2025, the applicant delivered its replication to the second respondent’s
plea and special plea. The replication was served and filed outside the time period as
prescribed by Rule 25(1). There is a dispute between the parties regarding the
precise period of delay, the applicant contends it was 15 days late while the second
respondent submits it was 22 days late. This dispute arises from differing calculations
of the dies from the date of service of the plea. For reasons that will become
apparent, the resolution of this dispute is not material to the outcome of this
application.
[13] On 26 June 2025, the second respondent served a notice of objection to the
replication, indicating that the applicant was required to apply for condonation before
the replication could be accepted as validly filed. On 11 July 2025, the applicant
launched the present application seeking condonation for the late filling of its
replication as well as the upliftment of the bar on the filing of its replication.
The Applicant’s Case for Condonation:
[14] The founding affidavit in support of the present application was deposed to by the
applicant’s attorney of record Mr. Fhumulani Brian Lukhalimana (“Mr. Lukhalimana”)
The applicant himself deposed to a confirmatory affidavit, which merely confirms the
allegations in the founding affidavit “in so far as they relate to me as the applicant”.
[15] The explanation proffered for the delay is set out in paragraphs 13 to 20 of the
founding affidavit, the following explanation is proffered for the delay:
[16] The first period of the delay (02 May 2025 – 26 May 2025): Upon receipt and perusal
of the special plea and plea, Mr. Lukhalimana consulted telephonically with the
applicant on 0 2 May 2025 to discuss the special plea of misjoinder and how to
applicant on 0 2 May 2025 to discuss the special plea of misjoinder and how to
address it in a replication. Mr. Lukhalimana advised the applicant that to deal with the
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special plea, he would need to obtain and furnish evidence, either real or
documentary, evincing a nexus between himself and the second respondent. The
applicant indicated that he had lost the required proof payments dated as far back as
2020, evidencing that he paid the second respondent. The applicant further indicated
that there was written correspondence from the second respondent direct ed to him
which he was failing to locate due to lapse of time, the applicant was already outside
the 15- day period envisaged in terms of Rule 25(1) of the Uniform Rules of Court by
at least 3 days.
[17] Second period of the delay (09 June 2025 – 20 June 2025): Mr . Lukhalimana office
was faced with a printer crisis. The printer broke down completely, causing material
delays in releasing work and affecting service. Mr. Lukhalimana attempted to source
a reliable printer supplier and found Nashua, but delivery of the new printer was
delayed. It was only on 23 June 2025 that a new printer was delivered. On 24 June
2025, Mr. Lukhalimana instructed his candidate attorney to revise the replication and
attend to service on the same day.
[18] The applicant further submits that, the degree of lateness is (15 days according to the
applicant, though the respondents contend it is 22 days) is not excessive . The
applicant has prospects of success in the main action; The application is made in
good faith; The second respondent will not suffer any prejudice that cannot be cured
by a costs order; The interest of justice favour the granting of a condonation to allow
the applicant to assert his section 34 Constitutional rights.
The Second Respondent’s Opposition:
[19] The second respondent opposes the application on multiple grounds , the grounds of
which are set out as follows:
[20] Inadequate explanation for the delay: The second respondent submits that the
applicant has failed to provide a full and satisfactory explanation for the entire period
applicant has failed to provide a full and satisfactory explanation for the entire period
of the delay. There is an unexplained gap between 27 May 2025 (when the evidence
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was received) and 09 June 2025 (when the printer crisis allegedly began). The
explanation regarding the broken printer does not justify why the applicant waited for
their own printer to be fixed when other printing options (such commercial printing
shops) were readily available.
[21] Prospects of success against the respondent: The second respondent contends that
the applicant has failed to establish that the second respondent has a direct and
substantial interest in the main action. The second respondent was merely the
landlord of the first respondent. The applicant has not allegedly or proven that the
second respondent is either a shareholder or director in Leralla Pharmacy. Without
such allegation, the applicant cannot sustain a cause of action against the second
respondent. The special plea of misjoinder is not dilatory plea that can be cured by
replication, it goes to the heart of whether the second respondent is properly before
the Court at all.
[22] Prejudice to the second respondent: The second respondent submits that it suffers
financial prejudice each time it is required to obtain legal counsel to protect its
interest. Valuable resources are diverted day -to day responsibilities to assist in
preparing a defence. Moreover, there is prejudice to the administration of justice and
to the second respondent’s right not to be drawn into litigation to which it is not
properly a party.
[23] The importance of the case and the interest of justice: The second respondent
submits that this is a contractual dispute between the applicant and the first
respondent involving a claim for damages. No new legal or constitutional
consideration arise. Justice for the applicant will still be served as he retains his claim
against the first and third respondents. The only issue before this Court at this stage
is whether to condone the late delivery of the applicant’s replication.
[24] The second respondent further objects to the introduction of new evidence in the
[24] The second respondent further objects to the introduction of new evidence in the
applicant’s replying affidavit in paragraphs 7.3 and 9.3 of the replying affidavit, and
through the extensive annexures attached thereto (including annexures ( “EP1”;
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“EP2”; and “EP3”), the applicant seeks to introduce email correspondence and bank
statements that were long in his possession. The second respondent submits that
this falls foul of the well -established principle that an applicant stands or falls by its
founding affidavit and cannot make out a new case in reply.
The Legal Framework:
[25] Rule 27 of the Uniform Rules of Court provides: ‘
“(1) In the absence of agreement between the parties, the court may upon application on
notice and on good cause shown, make an order extending or abridging any time prescribed
by these rules or by an order of court or fixed by an order extending or abridging any time for
doing any act or taking any step in connection with any proceedings of any nature
whatsoever upon such terms as to it seems meet.
“(2) Any such extension may be ordered although the application therefore is not made until
after expiry of the time prescribed or fixed, and the court ordering any such extension may
make such order as to it seems meet as to the recalling, varying or cancelling of the results
of the expiry of any time so prescribed of fixed, whether such results flow from the terms of
any order of from these rules.
(3) A court may on good cause shown, condone any non-compliance with these rules. “
[26] The meaning of “good cause” was explained in Madinda v Minister of Safety and
Security1 at para 10:
“…Good cause looks at all those factors which bear on the fairness of granting the
relief as between the parties and some as affecting the proper administration of
justice. In any given factual complex, it may be that only some of many such possible
factors become relevant. These may include prospects of success in the proposed
action, the reasons for the delay, the sufficiency of the explanation offered, the bona
1 Madinda v Minister of Safety and Security 2008 (4) SA 312 SCA at para 10.
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fides of the applicant and any contribution by other persons or parties to the delay
and the applicant’s responsibilities therefor.”
[27] In NUM v Council for Mineral Technology 2 (hereinafter referred to as “ NUM”) the
Appellate Division (as it then was) held:
“Among the facts usually relevant are the degree of lateness, the explanation
therefore, the prospects of success, and the importance of the case. Ordinarily these
facts are interrelated: they are not individually decisive, for that would be a piecemeal
approach incompatible with a true discretion, save of course that if there are no
prospects of success there would be no point in granting condonation”
[28] In Smith NO v Brummer NO and Another 1954 (3) SA 352 (OPD)
3, the court held that
an application for removal of bar should be granted where:
“In an Application for removal of bar the Court has a wide discretion which it will exercise in
accordance with the circumstances of each case. The tendency of the Court is to grant such
an application where:
(a) the applicant has given a reasonable explanation of his delay;
(b) the application is bona fide and not made with the object of delaying the opposite party’s
claim;
(c) there has not been a reckless or intentional disregard of the Rules of Court;
(d) the applicant’s action is clearly not ill-founded, and
(e) any prejudice caused to the opposite party could be compensated for by an appropriate
order as to costs;
-The absence of one or more of these circumstances might result in the application being
refused”.
2 NUM v Council for Mineral Technology [1999] 3 BLLR 209 (LAC) at para 10
3 Smith NO v Brummer NO and Another 1954 (3) SA 352 (OPD).
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[29] In Ferris and Another v First Rand Bank Ltd 4, the Constitutional Court reaffirmed that
lateness is not only a consideration, and the test for condonation is whether it is in
the interest of justice to grant it. The Court emphasised that for both condonation and
leave to appeal, and applicant’s prospects of success and the importance of the
issue to be determined are relevant factors.
[30] Regarding the explanation for the delay, in The Chairperson of the North - West
Gamblimg Board and Another v Sun International (SA) Limited
5 (hereinafter referred
to as the “Sun” case), held:
“(a) The applicant must provide a proper explanation of the causes of the delay and
explain each of the periods of delay.
(b) It is not sufficient for an applicant to set out a ‘number of generalised causes without
any attempt to relate them to the time-frame of its default or to enlighten the court as
to the materiality and effectiveness of any steps taken by the Board’s legal
representatives to achieve compliance with the Rules at the earliest reasonable
opportunity.
(c) The court has a discretion which the applicant must show should be exercised in its
favour.”
[31] The court further emphasised that the onus is on the applicant to provide a full and
satisfactory explanation for its failure to comply with the Rules. The explanation must
cover the entire period of the delay, and where the gaps are, the application fail s on
this group alone.
[32] On the question of prospects of success, the authorities establish that where
prospects are poor or non- existent, condonation serves no purpose. As stated in
NUM, if there are no prospects of success, there would be no point in granting
condonation. This is because condonation is not an end itself, but a means to enable
4 Ferris and Another v First Rand Bank Ltd 2014 (3) SA 39 CC at para 10.
5 North- West Gamblimg Board and Another v Sun International (SA) Limited [2013] ZASCA 146 at para 20.
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the court to adjudicate a dispute on its merits. If the merits cannot be adjudicated in
the applicant’s favour, the exercise is futile.
Evaluation: The Factors Considered:
[33] I turn to apply these principles to the facts in the present case. In doing so, I consider
each of the relevant factors in turn, bearing in mind that they are interrelated and
must be considered holistically rather than in a piecemeal fashion.
A. The Degree of Lateness:
[34] There is some dispute between the parties regarding the precise period of delay. The
applicant contends it is 15 days; the second respondent submits it is 22 days. Having
examined the pleadings and the applicable time periods, I am satisfied that even on
the applicant’s own calculation, the delay is substantial. A period of 15 days in the
context of pleading time limits – which are designed to ensure the expeditious and
orderly progression of liti gation – cannot be characterised as trivial or negligible. It
represents a significant period of non- compliance with the peremptory time limits
prescribed by the Rules.
[35] However, the authorities make it clear, the degree of lateness, while relevant, is not
decisive. A short delay with poor explanation may be refused, while a longer delay
with compelling explanation may be granted. The focus must be on the quality of the
explanation and the other factors, considered holistically.
B. The Explanation for the Delay:
[36] The explanation proffered by the applicant’s attorney, Mr. Lukhalimana falls into two
distinct periods, with significant gap between them. I analyse each period in turn.
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The first period 02 May to 26 May 2025:
[37] The explanation for this period is that the applicant was collecting evidence dating
back to 2020, which he had difficulty locating due to due lapse of time. Several
observations must be made about this explanation.
[38] Firstly, the difficulty in locating evidence is a problem of the applicant’s own making.
A litigant who chooses to institute proceedings bears the responsibility of ensuring
that he has the necessary evidence to support his case. If he does not have such
evidence, or cannot locate it timeously, he must bear the consequences. The Rules
of Court do not exist for convenience of litigants; they exist to ensure the proper
administration of justice. A litigant cannot excuse non- compliance by pointing to his
own disorganisation or failure to keep proper records.
[39] Secondly, and more significantly, the explanation for this period is provided by the
applicant’s attorney, and not by the applicant himself. The applicant’s confirmatory
affidavit merely confirms the allegations in the founding affidavit “insofar as they
relate to me”. It does not provide personal explanation for the delay, nor does it set
out what efforts the applicant personally undertook to locate evidence, what
difficulties he encountered, or why it took him from 02 May to 26 May 2025 to locate
documents that were allegedly in his possession. This is unsatisfactory. If the
applicant personally experienced difficulty in locating documents, he should have
deposed to an affidavit explaining his own efforts and the reasons for the delay. The
attorney, Mr. Lukhalimana, cannot speak for the applicant in matters that are within
his client’s personal knowledge.
[40] Thirdly, the explanation fails address why the applicant did not have this evidence
available from the outset. The special plea of misjoinder raised a fundamental
question about the second respondent’s interest in the matter. This was not a new or
question about the second respondent’s interest in the matter. This was not a new or
unexpected issue. The applicant ought to have anticipated that such a plea might be
raised and should have had his evidence in order when the summons were issued.
The fact that he did not reflects a lack of diligence in the preparation of his case.
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The unexplained gap: 27 May to 08 June 2025:
[41] The applicant’s attorney, Mr. Lukhalimana, in his affidavit does not cover the period
between 27 May 2025 (when the evidence was received) and 09 June 2025 (when
the printer crisis allegedly began). What happened during this period? Why was the
replication not prepared and finalised during this time? Mr. Lukhalimana states in his
replying affidavit that a first draft was prepared on 27 May 2025, no explanation is
given as to why the draft was not finalised and served in the days that followed. This
gap is approximately 12 days’ is entirely unexplained.
[42] The authorities are clear that the explanation must cover the entire period of the
delay. In Sun International , the Court emphasised that the applicant must relate the
explanation to the timeframe of default and explain each period of delay. The
unexplained gap in this case is fatal to the application. An applicant cannot pick and
choose which periods to explain and except the Court to fill the gaps by inference or
assumption.
The second period: 09 June to 20 June 2025:
[43] The explanation regarding the broken printer is, with respect, wholly inadequate and
reflects a level of professional conduct that is difficult to comprehend. The applicant’s
attorney states that his office printer broke down completely, causing material delays
in releasing work and affecting service. Mr. Lukhalimana contended his affidavit that
he attempted to source a reliable printer supplier and found Nashua, but the delivery
was delayed. It was only on 23 June 2025 that a new printer was delivered.
[44] The explanation is unsatisfactory for multiple reasons. Firstly, in the modern era,
legal practitioners have multiple options for printing and reproducing documents.
Commercial printing shops such a Jetline, PostNet, and numerous other services
providers are readily available in and around Johannesburg. Many even operate
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extended hours and offer rapid turnaround services. The notion that an attorney’s
office could not produce pleadings for a period of 11 days because of a printer
malfunction reflects a lack of resourcefulness and diligence that is inexcusable.
[45] Secondly, an attorney has a professional obligation to ensure that his or her office
infrastructure enables compliance with Court rules and deadlines. When
infrastructure fails, alternative arrangements must be made promptly, not after a
delay of nearly two weeks. The attorney’s failure to make such arrangements
constitutes negligence.
[46] Thirdly, the explanation does not address why the replication could not have been
prepared and served electronically. The Uniform Rules of Court make provision for
service by electronic mail where parties have agreed to such service or where the
Court so orders. The second respondent’s attorneys’ have provided an email address
for which service of documents will be accepted. The was no need for physically
printing and serve the document, if the document could be served electronically. Mr.
Lukhalimana focus on the printer crisis obscures the fact that the replication could
have been served without printing at all. At the very least, Mr. Lukhalimana could
have served the replication without signature and notified his opposition that he will
duly deliver a signed version in due course.
[47] Fourthly, the explanation regarding the printer is provided Mr. Lukhalimana, who is
effectively explaining his own negligence. While it is permissible for an attorney to
explain his own conduct, such explanations must be scrutinised carefully. The Court
must be satisfied that the explanation is truthful, complete and reasonable. In this
case, I am not satisfied.
Conclusion on the Explanation:
[48] For these reasons, I find that the applicant has failed to provide reasonable, full and
satisfactory explanation for the delay. The explanation is incomplete (failing to cover
satisfactory explanation for the delay. The explanation is incomplete (failing to cover
the entire period), insufficient (relying on generalised causes without adequate
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detail), and in significant respects, implausible (the printer crisis explanation). On this
ground alone, the application must fail.
Prospects of Success:
[49] Even if the explanation were adequate, the applicant would still need to demonstrate
that he has reasonable prospects of success in the main action against the second
respondent. If there are such prospects, condonation serves no purpose.
[50] The test for joinder is well established. In Judicial Services Commission v Cape Bar
Council
6, the court, replying on Bowring NO v Vrededorp Properties7, held:
“It has now become settled law that the joinder of a party is only required as a matter of
necessity- as opposed to a matter of convenience – if that party has direct and substantial
interest which may be affected by the judgment of the Court in the proceedings concerned”.
[51] In SA Riding for the disabled Association v Regional Land Claims Commissioner 8,
the court elaborated on the test:
“What constitutes a direct and substantial interest sit the legal interest in the subject matter of
the case which could be prejudicially affected by the order of court. This means that the
applicant must show that it has right adversely affected or likely to be affected by the order
sought.”
-The applicant failed to do so.
6 Judicial Services Commission v Cape Bar Council 2012 (6) SA 499 (SCA) at para 12.
7 Bowring NO v Vrededorp Properties CC 2007 (5) SA 391 (SCA) at para 21.
8 Association v Regional Land Claims Commissioner 2017 (5) SA 1 (SCA) at para 9
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[52] Applying this test to the present matter, I am constrained to conclude that the
applicant has not demonstrated, and cannot demonstrate, that the second
respondent has a direct and substantial interest in the subject matter of the litigation.
[53] The applicant’s own pleadings reveal that the alleged verbal agreement was between
the applicant, the first respondent (represented by the third respondent), and the
second respondent. However, the terms of that agreement, as pleaded relate to
shareholding in the first respondent, capital injection into the first respondent’s
business, and the day - to day running of the first respondent. The second
respondent’s role, on the applicant’s own version, was that of landlord. It provided
rental space to the first respondent.
[54] The lease agreement pursuant to which the second respondent provided rental
space was concluded between the second respondent (as agent of the GEPF) and
the third respondent (as representatives of the first respondent). The applicant was
not a party to that lease agreement.
[55] The second respondent alleged breach, according to the particulars of claim, consist
of terminating the lease agreement without consulting the applicant. The applicant
has not alleged any legal basis upon which the second respondent was obliged to
consult him. The applicant has not alleged that he was a party to the lease
agreement, that he had any rights to thereunder, or that the second respondent owed
him any duty of any kind.
[56] The applicant claims damages arising from the termination of the lease agreement.
But if the applicant was not a party to that agreement, and the second respondent
owed him no duty, the applicant cannot claim damages from the second respondent
for its termination.
[57] The documentary evidence relied upon by the applicant does not assist the applicant.
The email correspondence attached to the replying affidavit shows, at best that the
The email correspondence attached to the replying affidavit shows, at best that the
second respondent was aware that the applicant was involved in the business rescue
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of the first respondent and that the applicant made payments towards the first
respondent’s rental obligation. Awareness does not create liability. The fact that the
second respondent accepted rental payments from the applicant (on behalf of the
first respondent) does not create a contractual relationship between the applicant and
the second respondent. It merely shows that the second respondent accepted
payments from a third party on behalf of its tenant, a common occurrence in
commercial leases.
[58] The applicant’s contention that the second respondent was “aware” of his relationship
with the first respondent is legally irrelevant. The question is not what the second
respondent knew, but what legal obligations it owed to the applicant. The applicant
has not identified any source of such obligations – whether in contract, delict or
otherwise.
[59] In argument, counsel on behalf of the applicant, Miss. Nako submitted that the main
action raises important contractual issues, including whether the applicant is a
shareholder of the first respondent, whether the applicant must have been consulted
before termination of the lease agreement, and whether the applicant suffered
damages as result of the lease termination. With respect, these submissions miss the
point. The question is not whether the applicant has a claim against the first and third
respondents (which he may well have). The question is whether the applicant has a
claim against the second respondent. On the pleadings as they stand, the answer is
in the negative.
[60] The special plea of misjoinder is not dilatory plea that can be cured by replication. It
goes to the heart of whether the second respondent is properly before Court at all. If
the second respondent has not direct and substantial interest in the matter., it cannot
be joined. The applicant’s replication, even if filed timeously, cannot create a cause of
action against the second respondent where none exists. The replication may
action against the second respondent where none exists. The replication may
amplify or clarify the applicant’s case, but it cannot create a legal relationship that did
not previously exist.
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[61] I am therefore compelled to conclude that the applicant’s prospects of success
against the second respondent are poor to non- existent. On this ground as well, the
application must fail.
Prejudice:
[62] The applicant submits that the second respondent will not suffer any prejudice that
cannot be cured by a costs order. I disagree.
[63] Prejudice in this context is not limited to financial prejudice. There is also prejudice to
the administration of justice and to the second respondent’s rights not to be drawn
into litigation to which it is not properly a party. The second respondent has been
obliged to defend proceedings since March 2025. It has filed a plea, opposed this
condonation application, and incurred legal costs. If the condonation application is
granted, the matter will proceed to trial., with further costs and diversion of resources.
All of this arises from proceedings in which the second respondent may have no legal
interest.
[64] While is it true that costs orders can compensate for financial prejudice, they cannot
compensate for the prejudice of being compelled to participate in litigation that should
not have been brought against the second respondent in the first place. Moreover,
costs are compensatory, not punitive. They are designed to indemnify the successful
party against the expense of litigation, not to punish the unsuccessful party. The
second respondent should not have to bear any expense at all in relation to which it
is not properly a party.
[65] The applicant, on the other hand, does face prejudice if condonation is refused. The
applicant will be barred from filling his replication and may be unable to pursue his
claim against the respondent. However, the prejudice must be balanced against the
other factors. Moreover, the applicant retains his claim against the first and third
respondents. The applicant is not left without a remedy entirely.
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The Importance of the Case and the Interest of Justice:
[66] The applicant contends that the case raises important contractual issues and that the
interest of justice favour the granting of condonation application to allow him to assert
his constitutional right of access to courts.
[67] Section 34 of the Constitution provides that everyone has the right to have any
dispute that can be resolved by the applicant of law decided in a fair public hearing
before a Court or where appropriate, another independent and impartial tribunal of
forum. This right is fundamental to our constitutional order.
[68] However, the right of access to Courts is not absolute. It must be exercised in
accordance with the rules and procedures that regulate the conduct of litigation.
Those rules and procedures are not ends in themselves; they are means to ensure
the fair, efficient and orderly administration of justice. A litigant who fails to comply
with the rules cannot simply invoke section 34 to excuse non- compliance. The
interest of justice requires that both parties be treated fairly, that disputes be resolved
expeditiously, and that the rules designed to achieve these ends to observed.
The Introduction of New Evidence in Reply:
[69] Before concluding, I must address the second respondent’s objection to the
introduction of new evidence in the replying affidavit. Although not strictly necessary
for the deposition of this application, given my conclusions on the other factors, I
consider appropriate to address this issue as it bears on the conduct of the
applicant’s attorney.
[70] In Faber v Nazerian
9, the Court articulated the well-established principle:
“[22] The general rule is well established in our law is that in motion proceedings, the
applicant is required to make his or her case in the founding affidavit and not in the replying
9 Faber v Nazerian (2012/42735) [2013] ZAGPJHC 65 at para 22.
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affidavit. This rule is based on the principle that the applicant stands and falls by his or her
founding affidavit. The rule is also based on the procedural requirements of the motion
proceedings which requires that the applicant should set out the cause of action in both the
notice of motion and in the supporting affidavit. The notice of motion and the founding
affidavit constitute the substantive application before Court”.
[71] The rational for this rule is clear. Motion proceedings are decided on the papers. The
respondent is entitled to know the case it has to meet and to respond to that case in
its answering affidavit. If an applicant is permitted to introduce new evidence in reply,
the respondent is denied the opportunity to respond to that evidence. This is
procedurally unfair and contrary to the principles of natural justice.
[72] The evidence was clearly in the applicant’s possession at the time the founding
affidavit was deposed to. Much of it dates back to 2020, 2021, and 2023. There is no
explanation why it was not included in the founding affidavit. The introduction of this
evidence in reply denies the second respondent the opportunity to respond to it and
challenge its authenticity, relevance, or weight.
[73] The applicant attorney, Mr. Lukhalima sought to justify the introduction of this
evidence by referring to it in the replying affidavit and submitting that it demonstrates
the nexus between the applicant and the second respondent. This approach is
procedurally irregular and, if it were necessary to decide the application on this basis,
it would warrant the striking out of the new evidence. However, given my conclusions
on the other factors, I did not make a formal order to this effect.
The Conduct of the Applicant’s Attorney and the Cost Order:
[74] The applicant’s attorney, Mr. Lukhalimana deposed to the founding affidavit
personally. He purported to explain the delays in the litigation. However, as I have
personally. He purported to explain the delays in the litigation. However, as I have
found, this explanation was inadequate and in significant respects, implausible.
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[75] The explanation regarding the printer breakdown is particularly troubling. The
suggestion that an attorney’s office could not produce pleadings for 11 days because
of a printer malfunction reflects a lack of professionalism that is difficult to
comprehend. Furthermore, the attorney’s conduct in introducing new evidence in
reply, after failing to include it in the founding affidavit, suggest either a lack of
understanding of a basic motion procedure or deliberate attempt to evade the rules.
Mr. Lukhalimana failure to address the unexplained gap between 27 May and 08
June 2005 in either the founding affidavit or replying affidavit compounds the
inadequacy of the explanation.
[76] More recently in Public Protector v South African Reserve Bank 10 at paragraph 177,
the Constitutional Court reaffirmed that courts have the power to order costs de bonis
(personally) against legal representatives who act improperly, negligently or
unreasonably. The test for such an order is stringent. It is not imposed lightly. It
requires clear evidence that the legal practitioner’s conduct has been such that it
would be unfair to expect the client to bear the costs, or that practitioner has acted in
a manner that warrants the court’s disapproval.
[77] For these reasons, the condonation application must fail. Mr. Mzinyathi who
appeared for the second respondent asked for attorney and client costs on the basis
that this application was lacking in merit. It is true that the application was brought on
an elementary misconception of law, but I do not think that mistake can be attributed
to Mr. Phundulu. The mistakes made in litigating Mr. Phundulu’s case are so
fundamental that it seems to me that the representation provided to the applicant fell
below the standard that ought reasonably to be expected of a legal practitioner
admitted to appear in our Courts. While I was loath to punish counsel for arguing
unmeritorious submissions, there may well come a time when counsel who make
unmeritorious submissions, there may well come a time when counsel who make
transparently untenable arguments before me are directed to pay the costs
occasioned by their gross ineptitude in their personal capacity.
[78] However, given the high premium to be placed on the freedom of counsel to make
submissions that turn out to be wrong, I do not think that stage has yet been reached.
10 Public Protector v South African Reserve Bank 2019 (6) 253 (CC) at paragraph 177.
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Order:
[79] Accordingly, I made the following order:
1. The application is dismissed.
2. The applicant’s attorney is ordered to pay the costs of this application on an
attorney and client scale.
_________________________________
KHABA AJ
ACTING JUDGE OF THE HIGH COURT
GAUTENG DIVISION, JOHANNESBURG
Delivered: The written reasons for the order granted on 25 February 2026 were delivered in this matter on
09 March 2026, are digitally delivered by circulation to the parties’ representatives by email and by
uploading them to the electronic file of this matter on CaseLines and by publication to the South African
Legal Information Institute. The date of the delivery of the written reasons is deemed to be 09 March 2026.
Counsel for the Applicant: Adv. Z Nako
Instructed by: Lukhalimana Attorneys
Tel: 078 152 7119/ 072 691 5334
Email: lukhalimanaattorneys@gmail.com
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Attorney for the Second Respondent: Mr. Nkosenhle Mzinyathi
Attorneys for the Second Respondent: Mncedisi Ndlovu & Sedumedi Attorneys
Tel: 011 268 5225
Email: nkosenhle@ndlovu-sedumedi.co.za
Email: sisanda@ndlovu-sedumedi.co.za
Date of hearing: 25 February 2026
Date of order: 25 February 2026
Date of request for reasons: 05 March 2026
Date of reasons: 09 March 2026
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