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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
Case Number: 022358/2025
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO OTHER JUDGES: YES/NO
(3) REVISED: YES/NO
DATE: 10/03/26
SIGNATURE
In the matter between:
INTELLO CAPITAL (PTY) LTD
and
SAHARA FREIGHT SOUTH (PTY) LTD
ALTA BURGER
ARNOLD STEYNBERG
APPLICANT
FIRST RESPONDENT
SECOND RESPONDENT
THIRD RESPONDENT
Delivered,- This judgment was prepared and authored by the Judge whose
name is reflected and is handed down electronically by circulation to the
parties/their legal representatives by e -mail and by uploading it to the
electronic file of this matter on Caselines, The date for hand-down is
deemed to be --------
JUDGMENT
MAUBANE, AJ
Introduction
[1] The applicant approached this court on 11 February 2026, requesting the
court grant judgment in its favour against the second and third respondents,
respectively, for payment of an amount of R 2 768 170.45 (two million seven
hundred and sixty -eight thousand one hundred and seventy rand and forty -five
cents) jointly and severally, the one paying the other to be absolved.
[2] Both the second and third respondents, on the same papers filed in court,
made an application for condonation for the late filing of answering affidavits.
Background
[3] The applicant is lntello Capital (Pty) Ltd, a private company with registration
number 2025/126109/07, duly registered in terms of the laws of the Republic of South
Africa with its registered address at 3[...] S[...] Drive, Route 2[...] C[...] Park, Irene,
Centurion, Gauteng.
[4] The first respondent is Sahara Freight South (Pty) Ltd , with registration
number: 2014/277437/07, a private company with limited liability, currently in
liquidation.
[5] The second and third respondents are as cited in the notice of motion, and
for convenience and brevity, it is not necessary to mention their respective
addresses.
[6] The applicant approached the court requesting an order for payment of
an amount of R 2 768 170.45 against the second and third respondents respectively.
[7] According to the applicant , on 12 December 2022, it entered into a written
agreement facility with the first respondent for a loan for the above stated amount.
[8] The terms and conditions of the loan were:
a. Facility working capital - R 2 000 000,
b. Total facility amount - R 2 561 781, includes interest and fees,
c. Daily interest: 0.133%,
d. Repayment period: 6 months,
e. First instalment: 28 December 2022,
f. Monthly interest instalment: pro rata instalment of R 46 867 on 28
December 2022, R 86 630 for the following 5 months. (Instalment
includes monthly service fee),
g. Settlement date: 12 June 2023,
h. Settlement amount: R 2 101 764.00(lncludes fees and last interest
portion of R 38 514),
i. Payment terms: interest instalment via debit order, final settlement via
electronic fund transfer,
j. Facility fee: R 57 500 incl. VAT,
k. Admin fee: R 5750 incl. VAT, and,
I. Monthly service fee: R 100.
[9] On the same day the loan agreement was concluded, the first
respondent signed and concluded an acknowledgement of debt in favour of the
applicant.
[10] The second and third respondents, also on the same day of conclusion of the
loan agreement, signed as sureties and indemnity of the first respondent 's
indebtedness to the applicant.
[11] It is common cause that the first respondent was liquidated on 21 May
2024.
[12] According to Cipro and information up loaded on the Caselines , the second
and third respondents were directors of the first respondent.
[13] Since the first respondent is liquidated, the applicant pursued and
claimed against the second and third respondents as s ureties and co -principal
debtors for the payment of all sums due or become due to the applicant arising out
of the loan agreement entered into between the applicant and the first respondent.
It is noted in the surety and indemnity signed by both the second and third
respondents that they are bound to pay the debt jointly and severally, the one
paying the other to be absolved.
[14] At the commencement of the hearing of this matter, counsel for the
respondents addressed and requested the court to first consider the application for
condonation of the late filing of the respondents' answering affidavits . In the
interests of justice and concession made by the applicant 's counsel, it was decided
that they be granted the opportunity to argue for such condonation, thereafter, both
parties proceed to argue the main application.
Condonation
[15] In her answering affidavit , the second respondent submitted to the court
that she is residing in Wellington , Western Cape, and it was difficult for her and the
third respondent , who resides in Pretoria, to meet , discuss and answer the
applicant's application. She conceded that her answering affidavit was delivered out
of time, but however, the applicant was not prejudiced by late filing.
[16] The third respondent submitted to the court that he was in the
process of moving his company offices from Parkview Mall to Menlyn Main office
complex, and was unable to properly peruse and consider the affidavit prepared by
his attorney, and was further not prepared to sign any affidavit without properly
perusing, considering, and discussing the correctness of the contents with his
attorney. Because he and the second respondent reside far apart , (in different
provinces), it was difficult for both to meet and discuss with their attorney for
preparation and compilation of the answering affidavits.
[17] He acknowledges that his answering affidavit was filed out of time , but that
did not prejudice the applicant.
Legal principle
[18] At the outset, the court must vis it the prov isions of Rule 27 of the
Uniform Rules of Court, which state:
"27 Extension of time and removal of bar and condonation
1. In the absence of an 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
therefor 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 or fixed, whether such results flow from
the terms of any order or from these rules.
3. The court may, on good cause shown, condone any non-compliance
with these rules.
4. . . . “
The courts have a discretion in granting condonation, and such discretion is
based on the nature of the delay, the degree of non -compliance, the
explanation for it, any prejudice caused, and the applicant's prospects of
success in the main case.
[19] In Grootboom v National Prosecuting Authority and Another,1 the court
held that:
"[20] ... It is axiomatic that condoning a party's non -compliance with the
rules of court or directions is an indulgence. The court seized with the
matter has a discretion on whether to grant condonation.
[23] It is now trite that condonation cannot be had for the mere asking. A
party seeking condonation must make out a case entitling it to the court's
indulgence. It must show sufficient cause. This requires a party to
give a full explanation for the noncompliance with the rules or court 's
directions. Of great significance, the explanation must be reasonable
enough to excuse the default".
[20] "good cause shown" as stated in Rule 27(3), entails a responsibility on the
part of the applicants (second and third respondents) to place a justifiable cause to
the delay that served as a bar to the timeous filing of their answering affidavits. As
stated in Johannesburg Metropolitan Municipality v Mayetsa 2 the court held that
applying for condonation must satisfy justifiable factors relating to:
i. The cause of the delay,
ii. The degree of delay,
iii. What could have contributed to it,
iv. Prospects of success, and,
1 2014 (2) SA 68 (CC) at paras 20 and 23
2 (5797/2022 [2025] ZAGPJHC 233 (5 March 2025) at par 7.
v. Will there be any prejudice suffered by the other party if condonation
is granted.
[21] In Van Wyk v Unitas Hospital,3 the court held that:
"[20] ... the standard for considering an application for condonation
is the interests of justice. Whether it is in the interests of justice to grant
condonation depends on the facts and circumstances of each case.
Factors that are relevant to this enquiry include but are not limited to
the nature of the relief sought, the extent and the cause of the delay,
the effect of the delay on the administration of justice and other
litigants, the reasonableness of the explanation of the delay, the
importance of the issue to be raised in the intended appeal and the
prospects of success.
[22] An applicant for condonation must give a full explanation for
the delay. In addition, the explanation must cover the entire period of
delay. And what is more, the explanation must be reasonable."
[22] In James Brown and Harmer (Pty) Ltd v Simmons, NO,4 the court held that:
"It is in the interest of the administration of justice that the well-known
and well-established general rules regarding the number of sets and
the proper sequence of affidavits in motion proceedings should ordinarily
be observed. That is not to say that those general rules must be rigidly
applied: some flexibility, controlled by the presiding Judge exercising his
discretion in relation to the facts of the case before him, must necessarily
also be permitted. Where, as in this present case, an affidavit is tendered
in motion proceedings both late and out of its ordinary sequence, the
party tendering it is seeking not a right, but an indulgence from the Court:
he must both advance his explanation of why the affidavit is out of time
and satisfy the Cort that, although the affidavit is late, it should, having
3 2008 (4) BCLR 442 (CC) at paras 20 and 22.
4 1963 (4) SA 656 (A) at 660D-F.
regard to all the circumstances of the case, nevertheless be received".
[23] There are a myriad of authorities dealing with the application of Rule 27
and all these are laboured on the principles and administration of justice . The
rules are to be observed, and failing which, there should be a reasonable
explanation shown on good cause why indulgence should be granted.
[24] Holmes J, in Melane v Santam Insurance Co Ltd,5 held that:
"In deciding whether sufficient cause has been shown, the basic principles
is that the Court has a discretion, to be exercised judicially upon a
consideration of all the facts, and in essence it is a matter of fairness to
both sides. Among the facts usually relevant are the degree of lateness,
the explanation therefor, 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 . Any attempt to formulate a
rule of thumb would only serve to harden the arteries of what should a
flexible discretion. What is needed is an objective conspectus of all the
facts. Thus, a slight delay and a good explanation may help to
compensate for prospects of success which are not strong. 0 importance
of the issue and strong prospects of success may tend to compensate for
a long delay."
[25] Now, turning to the respondents' matter, it is apparent that the
answering affidavits were filed more than 43 days after the filing of the notice of
intention to oppose the applicant's Notice of Motion. The respondents were
supposed to have filed their answering affidavits 15 days after filing their notice
of intention to oppose the applicant's application.
[26] They advanced reasons that since the second respondent is staying
outside the province, they did not have time to meet and consult with their
outside the province, they did not have time to meet and consult with their
5 1962 (4) SA 531 (A) at 532C-D.
attorneys. The third respondent further submitted that his company was relocating
from Parkview Mall to Menlyn main office. They both conceded that they were late
in filing their answering affidavits . They both submitted to the court that their late
filing of the answering affidavits did not prejudice the applicant. They further
submitted to the court that it was not necessary to make a substantive application
for condonation as that could be done from the bar.
[27] The explanation furnished by both respondents falls short of covering the
entire duration of the delay. It took them more than a month to file their answering
affidavits. They failed to explain fully the cause of the delay. Their explanation of the
cause of delay is unreasonable. They did not tender an explanation as to why they
assert that their opponent will not suffer prejudice if condonation is granted.
[28] Turning to whether the respondents have prospects of success opposing
the main application if condonation is granted, the court has analyzed the
application itself and the respondents' evidence. The applicant submitted to the
court that it entered into a loan agreement with the first respondent. The second
and third respondents were directors of the first respondent. The first respondent
was liquidated. The second and third respondents acted as surety and co -principals
of the first respondent, which signed an acknowledgement of debt. The respondents
submitted that the applicant misrepresented itself at the time of entering into an
agreement that it was a credit provider, duly registered , and should they have
known that it was not a credit provider, duly registered, they would not have entered
into the loan agreement.
[29] I have exam ined all the applicant's documents, inter alia, the facility
agreement, acknowledgement of debt and sureties and indemnities of the
respondents' and it is stated nowhere that the applicant is a registered credit
respondents' and it is stated nowhere that the applicant is a registered credit
provider. Given the facility agreement, the acknowledgement of debt and surety and
failure of the respondents to service the loan, I am of the affirmation that the
respondents failed to convince the court that a condonation should be granted.
Over and above, there is a lack of full explan ation as to the reason for the delay.
They do not have a bona fide defence. I am not going to go further to espouse
their defence to the main application. I need to state that this court should refuse
to grant indulgence against the flimsy reasons advanced by the respondents.
[30] In a nutshell, the respondents' application for condonation of late filing of
their answering affidavits is dismissed.
[31] Regarding the applicant's application, I am convinced that a proper case
has been made and the following order is made:
1. The second and third respondents to pay the applicant, jointly and
severally, the one paying the other to be absolved, an amount of R 2
768 170.45.
2. The second and third respondents to pay the applicant, on the
aforesaid amount, interest at the rate of 0 .133% per day from 12
December 2022, until date of final payment, both days inclusive.
3. The respondents to pay the costs of the application on attorney and
own client scale, including costs of counsel at scale C.
M C MAUBANE
ACTING JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
DATE OF HEARING:
DATE OF JUDGMENT
For the Applicant:
Instructed by:
For the
Respondents:
Instructed by:
11 FEBRUARY 2026
10 MARCH 2026
ADV A LOUBSER
CILLIERS & GIDENHUYS INC
ADV J SHEEPERS
BENNECKE THOM INC