Background facts
[3] On 29 January 2024, ICT Works issued a combined summons against ATNS
and the summons was served on ATNS on 2 February 2024. The particulars of
claim comprise two claims:
a. Claim A: Payment of the sum of R1,148,186.50 in respect of unpaid
invoices for software consultancy services rendered in terms of an
amended master agreement;
b. Claim B: Payment of the sum of R5,148,186.50 as damages arising from
delays allegedly caused by ATNS's failure to perform its obligations under
the amended master agreement.
[4] The parties' contractual relationship is rooted in a Master Consultancy
Agreement concluded on 30 March 2016 ( ‘the MSA ’), in terms of which ICT
Works agreed to render Oracle E -Business Software and Management
Consultancy Services to ATNS, including the implementation of a
comprehensive Enterprise Resource Planning ( “ERP”) software solution. The
MSA was extended by a first addendum concluded on 10 July 2018 and a second
addendum concluded on 19 August 2021, the latter of which provided that the
agreement would terminate on 28 February 2022 ( “the amended master
agreement”).
[5] ATNS delivered its notice of intention to defend on 23 February 2024 and
delivered its plea and counterclaim on 23 March 2024. Included in the plea was
a special plea of prescription in which ATNS alleged that ICT Works's Claim B
had prescribed on the basis that it arose during the period July 2019 to January
2020, and that the summons served on 2 February 2024 was served more than
three years after the date on which the claim arose, resulting in its extinction by
virtue of section 11 of the Prescription Act 68 of 1969 (“the Prescription Act”).
[6] ICT Works delivered its plea to ATNS's counterclaim on 5 June 2024. However,
no replication to ATNS's special plea was delivered within the 15 -day period
prescribed by Rule 25(1) of the Uniform Rules of Court, which period expired on
16 April 2024. By operation of Rule 26, ICT Works became ipso facto barred from
16 April 2024. By operation of Rule 26, ICT Works became ipso facto barred from
replicating on that date.
[7] Subsequent to the bar taking effect, various procedural steps were taken. The
parties exchanged mutual Rule 35 discovery notices in October 2024, with ATNS
delivering its discovery affidavit on 4 November 2024 and ICT Works delivering
its discovery affidavit on 26 January 2025. ATNS delivered a notice of intention
to amend its counterclaim on 26 November 2024 and delivered its amended
pages on 11 December 2024. ICT Works did not oppose the amendment.
[8] Between July 2024 and October 2024, the parties engaged in settlement
discussions. ICT Works sent a without -prejudice letter in July 2024. A without -
prejudice meeting was held on 17 September 2024. ATNS submitted a
counterproposal on 1 October 2024. The parties were, however, unable to reach
agreement. ICT Works served a notice to discover on ATNS on 7 October 2024,
effectively signalling the end of the settlement discussions.
[9] On 13 December 2024, ICT Works's attorneys wrote to ATNS's attorneys
seeking consent to deliver the replication out of time, citing the settlement
discussions as part of the explanation for the delay. ATNS's attorneys replied on
8 January 2025, refusing consent on the basis that ICT Works lacked good cause
and that ATNS would be prejudiced.
[10] On 27 March 2025, ICT Works's attorneys again wrote to ATNS's attorneys, this
time enclosing the proposed replication, and urging ATNS to reconsider its
position having seen the narrow scope of the proposed replication which
addresses only the issue of prescription. ATNS's attorneys declined this request
on 1 April 2025 and referred ICT Works to approach the court in terms of Rule
27.
[11] ICT Works launched this application on 15 May 2025. The proposed replication
is annexed to the notice of motion. ATNS delivered its notice of intention to
oppose on 27 May 2025 and its answering affidavit on 13 June 2025. ICT Works
delivered its replying affidavit on 30 June 2025.
The proposed replication
[12] The proposed replication is succinct. It pleads that ICT Works's Claim B has not
prescribed because ICT Works's right of action only arose when the amended
master agreement terminated on 28 February 2022. The replication sets out the
master agreement terminated on 28 February 2022. The replication sets out the
contractual history of the MSA and its two addenda, pleads that the amended
master agreement required ICT Works to complete a defined scope of work and
that ATNS failed to perform between July 2019 and January 2020, causing
delays. Crucially, the replication pleads that it was only upon the termination of
the amended master agreement on 28 February 2022 that ICT Works became
aware, alternatively could reasonably have become aware, of the full extent of
its damages. Accordingly, ICT Works contends that the three -year prescription
period commenced on 28 February 2022 and that the summons served on 2
February 2024 - less than two years later - interrupted prescription in terms of
section 15(1) of the Prescription Act.2
The parties' respective contentions
[13] ICT Works advances three principal grounds in explanation of the delay:
a. First, during the period from July 2024 to October 2024, the parties were
engaged in settlement discussions and ICT Works did not wish to incur
unnecessary legal costs in the event that the parties reached an amicable
resolution.
b. Second, the initial legal strategy of ICT Works's erstwhile counsel was to
deliver the replication by way of an amendment to the pleadings under Rule
28(10), which permits the court to grant leave to amend any pleading at any
stage before judgment. However , when new counsel came on brief in
November 2024, the applicant was advised that a replication was the
appropriate procedural vehicle and that ATNS's consent would be required.
c. Third, there were delays in providing instructions, as all instructions
required approval from ICT Works's executive committee, and certain
employees involved in the matter had since left ICT Works's employ.
d. ICT Works contends that it has a bona fide and sound defence to the special
plea of prescription. It argues that, on a proper application of sections 11(d),
12(1), and 12(3) of the Prescription Act, its right of action — being a debt
that first became due and claimable on 28 February 2022 when the contract
terminated and the project was completed — had not prescribed when
summons was served on 2 February 2024. ICT Works relies on CGU
Insurance Ltd v Rumdel Construction (Pty) Ltd 2004 (2) SA 662 (SCA)3 and
Makate v Vodacom (Pty) Limited 4 in support of this position.
[14] ICT Works further submits that any prejudice to ATNS is minimal, can be
[14] ICT Works further submits that any prejudice to ATNS is minimal, can be
compensated by an appropriate costs order, and that its constitutional right of
access to courts under section 34 of the Constitution of the Republic of South
Africa, 19965 ("the Constitution") militates in favour of granting the indulgence. It
tenders costs of the application on an unopposed basis.
[15] ATNS opposes the application on four main grounds:
a. First, the delay is inordinate - ICT Works was barred on 16 April 2024 and
only launched this application on 15 May 2025, some thirteen months later.
No adequate explanation covers the entire period of delay.
b. Second, the reliance on settlement negotiations as a reason for delay is
contrived and in bad faith, because ICT Works itself abruptly terminated the
negotiations by serving a notice to discover on 7 October 2024 - only six
days after ATNS delivered its counterproposal. Accordingly, ICT Works
cannot use its own unilateral termination of negotiations as a shield to
excuse non-compliance with the rules.
c. Third, the proposed replication does not merely address the narrow issue
of prescription but amounts to an impermissible expansion or reformulation
of the cause of action. ATNS contends that ICT Works had full knowledge
of its damages as early as 2020/2021 , evidenced by a letter dated 22
January 2021 and a spreadsheet (POC4) that accompanied the particulars
of claim, both of which allegedly reflect a detailed quantification of delay
damages during the period July 2019 to January 2020. This, ATNS argues,
contradicts the replication's assertion that the debt only became due on 28
February 2022.
d. Fourth, ATNS will suffer prejudice that cannot be cured by a costs order,
including disruption to its trial preparation strategy, continued uncertainty,
and the cost of managing piecemeal and tactical litigation.
e. Fifth ATNS seeks dismissal of the application with costs on the attorney
and client scale.
The applicable legal framework
[16] Rule 25(1) of the Uniform Rules of Court provides that a plaintiff who wishes to
replicate must do so within 15 days after service of the plea. Rule 26 provides
that the failure to do so results in the plaintiff being ipso facto barred.
[17] Rule 27 provides the mechanism for relief from non -compliance. Rule 27(3)
provides: “the court may, on good cause shown, condone any non -compliance
with these rules.”
[18] The test for condonation under Rule 27 has been authoritatively restated on
numerous occasions. The two principal requirements are: (a) a reasonable and
acceptable explanation for the default; and (b) a bona fide defence which prima
facie has some prospect of success. These requirements were set out in the
matter of Smith, N.O. v Brummer, N.O. and Another 6 where Brink J identified the
following five considerations relevant to the exercise of the court's discretion:
“(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) t he 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.”
[19] In Ingosstrakh v Global Aviation Investments (Pty) Ltd and Others 7 the Supreme
Court of Appeal confirmed that “ good cause ” requires a reasonable and
acceptable explanation for the default, a demonstration that a party is acting bona
fide, and a bona fide defence which prima facie has some prospect of success.
[20] Critically, the standard for condonation under the Uniform Rules must now be
approached through the lens of the Constitution. In Van Wyk v Unitas Hospital
(Open Democratic Advice Centre as Amicus Curiae) 8 the unnecessary legal
costs while bona fide settlement negotiations are ongoing constitutes a
legitimate, and indeed commercially sensible, reason for not prosecuting
legitimate, and indeed commercially sensible, reason for not prosecuting
procedural steps. ICT Works cannot, however, avail itself of this explanation for
the entire delay: the bar took effect on 16 April 2024, and there is no evidence of
any settlement discussions prior to July 2024. This leaves a gap of approximately
three months (April to July 2024) that is unaccounted for by this reason.
[21] ATNS argues that the settlement negotiations were not genuine because ICT
Works unilaterally terminated them by serving a notice to discover on 7 October
2024 - six days after ATNS had delivered its counterproposal. This argument has
superficial force, but on closer scrutiny it does not withstand examination as a
basis for refusing the relief. It is common cause that the parties had a meeting
on 17 September 2024 and that ATNS did respond with a counterproposal on 1
October 2024. The fact that ICT Works thereafter decided to proceed with formal
litigation steps does not transform the period of negotiations into a sham. Parties
often conduct settlement negotiations in parallel with formal litigation procedures.
The more apt criticism is that ICT Works ought, at the point where negotiations
failed in early October 2024, to have moved swiftly to seek ATNS's consent or to
launch an application. It did not do so promptly, and this must be weighed against
it.
[22] The second reason advanced - that ICT Works's erstwhile counsel initially
advised it to bring its replication as an amendment under Rule 28(10) - is less
convincing as a standalone explanation, but it must be assessed in its proper
context. It is clear fro m the affidavit of the plaintiff's attorney, Ms Kayana, that
new counsel only came on brief in November 2024, approximately seven months
after the bar took effect. The failure to re-examine the procedural strategy sooner
is a legitimate criticism. However, the proposition that a litigant's change of legal
strategy, driven by a change of counsel, can never contribute to a satisfactory
explanation is too absolute. Courts have repeatedly held that a litigant is not
automatically disqualified from condonation m erely because its former legal
representatives provided incorrect advice: see Flugel v Swart .15 Once new
counsel came on brief in November 2024, the applicant moved promptly - writing
to ATNS on 13 December 2024, barely four weeks after new counsel was
appointed.
to ATNS on 13 December 2024, barely four weeks after new counsel was
appointed.
[23] The third reason - internal delays in obtaining executive committee approval -is,
as fairly conceded by the respondent’s own counsel in paragraph 3 of the
respondent's heads of argument, the strongest of the three explanations and
covers the period from January to March 2025 with reasonable adequacy.
[24] Taking the explanation as a whole, I accept that the applicant has offered a
reasonable explanation for the delay. The explanations are not contrived or
fabricated. The period from April to July 2024 is the only window that is left
unexplained.
[25] Furthermore, I note that ATNS itself sought and was granted leave to amend its
counterclaim some eight months after the pleadings closed, without objection
from ICT Works. While this does not of itself justify ICT Works's delay, it does
reinforce the impression that both parties have been proceeding at a measured
pace and that the litigation is not at a critical procedural juncture where a delay
of this nature causes irreversible harm. This also demonstrates ICT Works’ co -
operative attitude to the litigation, which courtesy was not returned by ATNS.
Bona Fides
[26] I am satisfied that the application is brought bona fide . ICT Works has
consistently communicated its desire to replicate from December 2024 onwards.
It proactively shared the proposed replication with ATNS so that ATNS could
assess its scope and content before deciding whether to consent. The proposed
replication is indeed confined to the prescription issue. There is no indication of
any intention to delay the proceedings or to frustrate ATNS's legitimate interests.
The delay appears to be the product of a combination of commercial pragmatism,
legal misjudgement by former counsel, and internal administrative delay - none
of which suggests bad faith.
Bona Fide Defence
[27] I turn to what is, in many respects, the most significant consideration in this
application. ICT Works must demonstrate a bona fide defence to the special plea
of prescription which prima facie has some prospect of success.
[28] ATNS’s special plea is straightforward: it contends that Claim B arose during the
period July 2019 to January 2020 when it allegedly failed to perform, and that the
three-year prescription period therefore expired no later than January 2023,
three-year prescription period therefore expired no later than January 2023,
before the summons was served on 2 February 2024.
[29] ICT Works's proposed replication counters this by pleading that it is only upon
the termination of the amended master agreement on 28 February 2022 - when
the project was completed and the work delivered - that ICT Works became able
to calculate and claim the full extent of its damages for the delays caused by
ATNS. On ICT Works’s case, the “debt” only became due within the meaning of
sections 11(d) and 12(1) of the Prescription Act on 28 February 2022. Since
summons was served on 2 February 2024, this is within three years of that date.
[30] The legal principles applicable to this question are as follows. The Prescription
Act provides, in section 12(1), that prescription begins to run “as soon as the debt
is due.” A debt is due when it is immediately claimable by the creditor and
immediately payable by the debtor. In CGU Insurance the SCA held that
prescription only commences once all elements of the right of action exist. In
Evins v Shield it was confirmed that there must be an ascertainable or liquidated
claim and an immediately enforceable right before prescription runs. In Makate
the Constitutional Court confirmed that the debt in relation to financial loss arising
from a wrongful act becomes due when the loss is suffered.
[31] The question whether a contract -based damages claim for delay only becomes
due at contract termination - when the full extent of the delay and its financial
consequences can finally be assessed and the right to claim crystallised - is a
live and genuinely contested legal question.
[32] The contractual framework is significant: It is at least arguable that the amended
Master Agreement was a comprehensive ERP implementation project with a
fixed end date of 28 February 2022. ICT Works's claim for damages is a claim
for the cost of maintaini ng resources during the delay caused by ATNS, not a
claim for a discrete, once-off wrong at a fixed date.
[33] It is thus arguable that the financial consequences of the delay could only be fully
[33] It is thus arguable that the financial consequences of the delay could only be fully
determined at the point of project completion when the scope of ATNS's failure,
and the commensurate cost to ICT Works of maintaining idle personnel, could
finally be quantified in full. I mindful that there is conflicting case law on this point,
but at this stage, it is sufficient for ICT Works to establish a prima facie defence.
It has done so with reference to relevant case law that supports its argument.
[34] ATNS argues that ICT Works had knowledge of its damages as early as
2020/2021, relying on a letter dated 22 January 2021 and a spreadsheet (POC4).
However, section 12(3) of the Prescription Act provides that a debt is not due
until the creditor has knowled ge of the facts from which the debt arises. Even
accepting that a letter in early 2021 contained some quantification of interim
delay costs, this does not necessarily mean that the full, final, and claimable
damages had crystallised at that point, particul arly where the project was still
ongoing and ATNS's obligations of performance - which were the source of ICT
Works's ongoing losses - continued until February 2022. A creditor's knowledge
of an estimated or preliminary quantum does not necessarily constit ute
knowledge of a finalised and claimable debt. The 2021 letter may represent an
accounting of losses to that point, not a final determination of the total debt due
from ATNS. Whether this is or is not so is a matter for the trial court.
[35] Furthermore, ATNS's argument that the replication impermissibly widens the
cause of action is misconceived. The replication does not create a new cause of
action. It responds to the special plea of prescription by placing in issue the date
upon which ICT Works's right of action arose, which is the very question that a
replication is designed to address. As was explained in Butler v Swain 16 a
replication that pleads that the defendant is estopped from raising some defence
set out in the plea, or which sets u p admissions or traverses the factual
foundation of the special plea, does not widen the ambit of the claim - it
constitutes permissible “further pleading.” The replication here squarely and only
addresses the prescription defence.
[36] I am satisfied that ICT Works has a bona fide defence to the special plea of
prescription that is not frivolous and which has real, reasonable prospects of
success at trial. The question of when a debt arising from a continuing contractual
success at trial. The question of when a debt arising from a continuing contractual
relationship crystallises into a claimable debt is precisely the kind of factual and
legal question that should be properly ventilated at trial, not foreclosed by a
procedural bar. I do not need to decide whether the prescription defence will
ultimately succeed or fail - that is a matter for the trial court. I need only be
satisfied that ICT Works's position is not plainly untenable, and I am so satisfied.
Prejudice
[37] I deal next with the question of prejudice. ATNS contends that it will suffer
prejudice that cannot be compensated by a costs order. The nature of the alleged
prejudice is disruption to its trial preparation strategy, continued uncertainty, and
mounting legal costs from piecemeal and tactical litigation.
[38] I am unable to accept this characterisation of the prejudice. The matter has not
been set down for trial. No pre -trial conference has been convened. Discovery
has been exchanged. The parties are at a relatively early interlocutory stage. The
granting of th e application will merely close the pleadings in the ordinary and
appropriate manner by allowing ICT Works to respond to the special plea. ATNS
will then know, as it already does (having received the proposed replication in
March 2025), precisely what grou nd ICT Works will rely on in opposition to the
prescription defence.
[39] The prescription defence will, in any event, have to be ventilated at trial
regardless of whether a formal replication is filed, by operation of Rule 25(2)
which deems issue to be joined on all matters in the plea in the absence of a
replication. All that the replication does is to articulate ICT Works's factual case
in opposition to the prescription defense so that both parties and the court are
better equipped to address that issue at trial. The refusal to allow the replication
would not eliminate the prescription issue from the proceedings - it would merely
mean that ICT Works proceeds without having formally stated its case on that
issue, to the detriment of the quality of the proceedings.
[40] The only real and identifiable prejudice to ATNS is that its special plea of
prescription may, at trial, be dismissed on account of ICT Works's replication. As
was observed in the founding affidavit, and as is entirely correct as a matter of
principle, the mere prospect that one's defence may fail is not the kind of
prejudice that should motivate a court to foreclose the opposing party's right of
prejudice that should motivate a court to foreclose the opposing party's right of
reply. To hold otherwise would be to allow the bar to operate not as a procedural
tool to regulate the timely close of pleadings, but as a substantive mechanism by
which a party procures a windfall victory on prescription through the opponent's
procedural default.
[41] I am satisfied that any prejudice suffered by ATNS can be adequately
compensated by an appropriate order as to costs.
Interests of justice and section 34 of the Constitution
[42] Considering all the circumstances holistically - as required by Grootboom (supra)
and Ingqwele - I am satisfied that it is in the interests of justice to grant the
application. The issues in this matter involve a claim with a total value in excess
of R6 million. The prescription point is a genuinely contested question of law and
fact. Both parties should be entitled to have that dispute resolved on its merits,
not foreclosed by a procedural bar. The replication is narrow. It introduces no
new cause of actio n. The delay, while significant, was not reckless, deliberate,
or in bad faith. ICT Works has acted transparently throughout and even disclosed
its intended replication to ATNS in advance in an attempt to obtain consensual
resolution.
[43] Section 34 of the Constitution guarantees every person the right to have any
dispute that can be resolved by the application of law decided in a fair public
hearing before a court. This constitutional imperative must inform the court's
exercise of its disc retion under Rule 27 in all appropriate cases. As Noko J
observed in Zervas, the court should allow a party the opportunity to fully ventilate
a matter and have access to courts where there are prospects of success and
where the interests of justice so require.
[44] It is always in the interests of justice that the parties are afforded the opportunity
to have their cases fully ventilated so that the real issues can be decided by the
parties. This has consistently been the approach taken by our courts to the
amended of pleadings, although I appreciate that the test for a right to introduce
a pleading is distinct from that for an amendment.
[45] I am mindful that courts must guard against the tendency to grant condonation
as a matter of course, as this would undermine the procedural rules and the
as a matter of course, as this would undermine the procedural rules and the
orderly administration of justice. Litigants and their attorneys must be held to the
standards of care required by the Rules. However, in this case I am satisfied that
the balance of considerations, taken cumulatively, falls in favour of the applicant.
The object of the bar under Rule 26 is to regulate the orderly close of pleadings,
not to permanently deprive a party of the right to respond to a special plea that if
not opposed my effectively bar its most substantial claim.
Costs
[46] The applicant is seeking an indulgence. The ordinary rule that it should bear the
costs of the application, including those reasonably incurred in consequence of
the opposition: Maloney's Eye Properties BK v Bloemfontein Board Nominees
Bpk.17
[47] However, I am required to determine whether the respondent's opposition was
reasonable. As the applicant correctly submits, ATNS was entitled at any stage
to consent to the filing of the replication. On two occasions the applicant sought
this consent. On the second occasion it disclosed the proposed replication in full
so that ATNS could assess its scope and content. The opposition was maintained
without any real or irremediable prejudice being demonstrated. In the
circumstances, ATNS's decision to oppose, while procedurally permissible, did
not represent the most constructive course of litigation conduct or collegiality,
particularly as an indulgence had been afforded to it when it amended its plea
out of time.
[48] Had it not been for the instructions from ICT Work’s attorney to counsel to tender
the costs (notwithstanding that it had previously only tended the costs in the
event that there was no opposition), I would in all probability have made each
party pay their own costs.
[49] In my view ATNS’s opposition was obstructive and not conducive to the cost
effective and proper litigation between the parties. I am thus constrained to order
that the applicant shall pay the costs of this application, including the costs of
the opposition, on Scale B in accordance with its tender
Order
[50] In the circumstances, the following order is made:
14. Evins v Shield Insurance Co Ltd 1980 (2) SA 814 (A)
15. Flugel v Swart 1979 (4) SA 493 (ECD)
16. Butler v Swain 1960 (1) SA 527
17. Maloney's Eye Properties BK v Bloemfontein Board Nominees Bpk 1995 (3)
SA 249 (O)
[51]