THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
Case no 7236/2013
In the matter between:
PRIMALL MEDIA (PTY) LTD Plaintiff
and
iPOINT MARKETING CC First Defendant
HYPROP INVESTMENTS LTD Second Defendant
ELLERINE BROTHERS (PTY) LTD Third Defendant
JUDGMENT
Introduction
[1] This matter concerns two interlocutory applications in long-running commercial
litigation between Primall Media (Pty) Ltd (Primall) and iPoint Marketing CC (iPoint).
The parties are cited as they are in the action for ease of reference, and will be referred
to as “Primall” and “iPoint” for readibility.
[2] Primall seeks the dismissal of iPoint's counterclaim for want of prosecution.
iPoint seeks leave to amend its counterclaim. Although the applications are
procedurally distinct, they are closely connected, because Primall's case is that the
(1) REPORTABLE: Yes ☐/ No ☒
(2) OF INTEREST TO OTHER JUDGES: Yes ☐ / No ☒
(3) REVISED: Yes ☒ / No ☐
Date: 22 April 2026
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way in which the counterclaim has been prosecuted, expanded and reformulated over
time has now made a fair trial impossible, while iPoint contends that the proposed
amendment merely addresses issues already in the case and updates the
quantification of the loss it says it has suffered.
[3] It is convenient to address the dismissal application first. If the counterclaim is
dismissed, the amendment application largely falls away. If it does not, I must still
decide whether the amendment now sought should be permitted.
Factual setting
[4] The litigation has its origin in a written Licensing and Service Agreement
concluded in May 2008 between Primall and iPoint. Under that agreement, Primall
utilised iPoint's software and devices for digital advertising installations in shopping
malls. The agreement was amended by addenda over time, including an addendum
in October 2009 under which licence fees were linked to Primall's net advertising
revenue generated from sales on the devices.
[5] The agreement endured for a fixed period of five years and expired on 20 May
2013 by effluxion of time, without renewal. By then, disputes had already arisen
between the parties. On Primall's version, once the agreement expired in May 2013,
its claim in convention became moot. It says that from that point onward it no longer
required, and could no longer obtain, the substantive final relief originally pursued in
the action, with the result that the real live controversy became iPoint's counterclaim.
That proposition featured prominently in Primall's affidavits and oral argument. It
formed part of its submission that iPoint, as dominus litis in reconvention, thereafter
bore the duty to prosecute the matter diligently to finality.
[6] Primal instituted its action in 2013. iPoint delivered its plea and counterclaim on
3 February 2014. From the outset, the counterclaim was wide-ranging. It relied on the
written Licence Agreement, certain alleged oral agreements, unpaid licence fees,
written Licence Agreement, certain alleged oral agreements, unpaid licence fees,
project management and design-related claims, and claims connected to iPoint's
asserted right, on termination of the agreement, to acquire a portion of the digital
devices from Primall.
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[7] In relation to the devices, iPoint's case from the start was that the Licence
Agreement obliged Primall, upon termination, to sell or make available a specified
portion of the devices to iPoint at R500 per device, and that Primall failed or refused
to do so. iPoint also claimed damages in the form of loss of profits, said to arise from
its inability to redeploy the devices and generate advertising revenue from them.
[8] The counterclaim was amended several times. Over time, the amount claimed
expanded substantially, from a figure in the region of R3.6 million at inception, to
approximately R13.8 million after the 2016 to 2018 reformulation, and then to roughly
R14 million in 2020. By 2025, through the proposed new amendment, the amount
claimed had increased to approximately R34 million.
[9] Primall's case is that this history reveals a counterclaim that has never
crystallised into a stable and triable form. iPoint's case is that the history reflects a
matter that has consistently been pursued, albeit slowly and imperfectly, through
amendments, discovery, expert processes, case management, and repeated attempts
to settle the dispute or refer it to alternative dispute resolution.
Procedural history in outline
[10] After iPoint delivered its plea and counterclaim in February 2014, Primall
excepted to the counterclaim and delivered a Rule 30 notice. Thereafter, there were
further notices of intention to amend, objections, a condonation application, a grant of
leave to amend in December 2017, special pleas, discovery steps, replication, and,
later, a further amendment in 2020.
[11] Primall amended its special plea and plea to the counterclaim in November
2020. Importantly, in that amended plea, Primall pleaded that on 9 May 2019 and
again on 13 June 2019, it tendered delivery of 40 of the devices listed in annexure A
to the Licence Agreement to iPoint in exchange for payment of R500 per device. That
to the Licence Agreement to iPoint in exchange for payment of R500 per device. That
plea introduced Primall's reliance on the 2019 tender as an answer, or partial answer,
to iPoint's case about non-delivery.
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[12] Thereafter, the matter did not proceed to trial. Primall's version is that, from late
2020 to late 2024, very little of substance occurred in prosecuting the counterclaim,
and that, while there may have been settlement or mediation discussions, iPoint
remained obliged to prosecute its case and was not entitled to leave the matter
dormant. Primall expressly submitted that negotiations and mediation efforts do not
suspend the obligation resting on a claimant to drive its case to finality.
[13] iPoint answers that it remained in constant contact with its legal representatives
and with Primall's representatives; that there were ongoing efforts to resolve the matter
commercially; that it engaged experts and revised its quantification methodology; that
there were settlement discussions in 2023 and 2024; and that the matter was
ultimately transferred to the Commercial Court, followed by case management and a
pre-trial process in early 2025.
[14] On 20 March 2025, iPoint delivered a further notice of intention to amend its
counterclaim. Primall objected on 4 April 2025. iPoint did not deliver its application for
leave to amend within the ten days specified in rule 28(4), but only on 4 June 2025.
Primall then, both in affidavit and in argument, submitted that the notice had lapsed
and that the amendment application was therefore procedurally incompetent.
Thereafter, Primall launched its counter-application to dismiss the counterclaim for
want of prosecution.
Dismissal application
[15] Both parties accepted that this Court has the power, in an appropriate case, to
dismiss a claim for want of prosecution. Both also accepted that the remedy is
exceptional because it prevents a litigant from having the dispute determined at trial.
The debate was not about whether the power exists, but about the circumstances in
which its exercise is justified.
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[16] The authorities referred to in argument include Sanford v Haley NO,1 Gopaul v
Subbamah,2 and Cassimjee v Minister of Finance 3 (among others). In Sanford, the
Cape High Court, as it then was, stated (references omitted)
"[8] In terms of s 173 of the Constitution the High Court has the inherent power to
protect and regulate its own process and to develop the common law, taking into
account the interest of justice. It has an inherent jurisdiction to control its own
proceedings and as such has power to dismiss a summons or an action on account of
the delay or want of prosecution. The Court will exercise such power sparingly and
only in exceptional circumstances because the dismissal of an action seriously impacts
on the constitutional and common-law right of a plaintiff to have the dispute adjudicated
in a court of law by means of a fair trial. The Court will exercise such power in
circumstances where there has been a clear abuse of the process of Court."
[17] The Court then set out the requirements: i) there should be a delay, ii) the delay
must be inexcusable, and iii) such a delay must prejudice the other party.
[18] In Gopaul,4 the Durban High Court stated something similar:
"It is clear that the High Court of South Africa has an inherent power to dismiss an
action on account of a delay in its prosecution by the plaintiff. What is less clear is the
circumstances under which a Court will exercise such power. The various decisions in
point were discussed in Molala v Minister of Law and Order and Another 1993 (1) SA
673 (W). There Flemming DJP held that the fact that a plaintiff had permitted an
unreasonable time to elapse before taking the next procedural step in an action, was
not in itself conclusive. Nor was it conclusive that such delay had caused prejudice to
the defendant. The question was 'whether there is A behaviour which oversteps the
threshold of legitimacy'.
It appears to me that the proper approach is for the Court to weigh up the period of the
It appears to me that the proper approach is for the Court to weigh up the period of the
delay and the reasons therefor, on the one hand and the prejudice, if any, caused to
1 2004 (3) SA 296 (C).
2 2002 (6) SA 551 (D).
3 2014 (3) SA 198 (SCA).
4 At 558-559.
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the defendant, on the other. Thus, there may be cases in which the delay is relatively
slight but serious prejudice has been caused to the defendant."
[19] These approaches have been endorsed by the Supreme Court of Appeal in
Cassimjee. Read together, they show that the enquiry is fact-specific and directed to
fairness and the interests of justice. 5 Relevant considerations include the existence
and extent of the delay, the adequacy of the explanation offered, the responsibility for
the delay, the use or non-use of available procedural mechanisms, and, importantly,
whether the delay has caused prejudice so serious that a fair trial is no longer possible.
[20] Dismissal is therefore not a response to a delay in the abstract. It is a remedy
for delay of such a character and with such consequences that it becomes unjust to
require the other party to meet the claim at trial.
Delay and prosecution of the counterclaim
[21] There has undoubtedly been a significant delay. The counterclaim has existed
since 2014. Twelve years later, it has still not been heard. It has undergone repeated
amendments and has grown dramatically in scope and quantum. iPoint's explanation
for each period of delay is unsatisfactory, particularly regarding why the current
amendment was sought only in 2025, years after the 2019 tender on which part of the
amended case is based.
[22] That said, the matter cannot fairly be characterised as one in which nothing
happened for years on end. iPoint placed a detailed chronology of procedural steps
before me. That chronology records objections, amendment processes, condonation
proceedings, discovery, device inspections, exchanges under the rules, case
management, changes of attorneys, and later settlement and mediation efforts. Primall
criticised aspects of the chronology, and contended that some of the material related
to privileged settlement communications, but it did not seriously dispute that there had
to privileged settlement communications, but it did not seriously dispute that there had
been ongoing procedural and engagement activity over much of the life of the matter.
5 In section 173 of the Constitution, see Naude v Breda N.O [2022] ZAGPPHC 855.
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[23] The picture that emerges is not one of complete abandonment. It is one of slow,
uneven, and often unsatisfactory litigation, punctuated by periods of delay, procedural
wrangling, and attempts at commercial resolution.
[24] Primall is correct that settlement or mediation discussions do not relieve a
claimant of the duty to prosecute its case. A litigant cannot simply place a matter on
hold for years and later seek to excuse the delay on the basis that negotiations were
ongoing in parallel. If anything, the claimant must decide whether to pursue settlement
while keeping the matter procedurally alive, or to risk the consequences of delay.
[25] But the fact that the negotiations do not excuse delay does not render them
irrelevant. They remain part of the facts to consider when deciding whether this is a
case of inexcusable inactivity of the kind seen in the more extreme authorities. Here,
they help explain why the matter did not move more quickly, even if they do not fully
justify that state of affairs.
[26] On the chronology before me, there is no definite point at which Primall could
conclude that iPoint was no longer pursuing the counterclaim, however drawn out it
might be. There is no obvious point at which the counterclaim can objectively be said
to have been abandoned. Instead, the record reflects continued, if inadequate, activity
over time.
[27] Primall placed considerable emphasis on the proposition that, once its own
claim had become moot in 2013, iPoint alone bore the burden of prosecuting the only
live claim in the matter. That submission has force. iPoint was indeed dominus litis in
respect of the counterclaim and could not shift the primary duty of prosecution onto
Primall.
[28] That, however, does not mean that Primall's conduct is irrelevant. The
authorities recognise that a court may consider whether the party seeking dismissal
used the procedural tools available to it. In this matter, Primall took various procedural
used the procedural tools available to it. In this matter, Primall took various procedural
points and delivered special pleas. Still, it did not itself bring the special pleas to
determination, nor did it seek to drive the matter to trial once pleadings had closed.
The January 2025 case management minute also reflects both parties' acceptance
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that the matter remained alive, that there would be a further pre-trial process, and that
prejudice and possible amendment would be discussed in that process.
[29] This does not make Primall responsible for the delay. However, it reinforces the
conclusion that the history of this case is more complex than a simple case in which
one party does nothing while the other waits helplessly for years.
[30] Primall's case rests on prejudice. It says that the business relevant to the
dispute was sold in 2018; that the devices are no longer available because they were
used for spare parts, disposed of, or otherwise no longer exist in an inspectable form;
that key witnesses have left, are unwilling to assist, or have no reliable recollection;
and that it is therefore no longer possible for it to meet the counterclaim fairly at trial.
[31] These are serious concerns that cannot be brushed aside lightly. In particular,
the disappearance of the devices may materially affect either party's ability to litigate
issues concerning their condition, repairability, residual life, and value. Primall's
complaint that a subpoena cannot restore memory, cooperation, or timely consultation
is also plainly correct.
[32] The difficulty for Primall is that it seeks dismissal of the entire counterclaim. On
the papers before me, the prejudice shown does not establish that every component
of the counterclaim is incapable of fair adjudication.
[33] One must distinguish between at least two periods and two categories of
issues. The first covers the period from 2013 until the 2019 tender, during which
iPoint's case was simply that Primall was obliged, on termination, to make devices
available and failed to do so. That issue has been in the case from the start. Primall's
own 2020 plea confirms that no tender was made until 2019. The second concerns
the post-2019 issue: whether the 2019 tender constituted compliance, and, if not,
whether the devices' condition rendered the tender inadequate.
whether the devices' condition rendered the tender inadequate.
[34] The second issue raises more acute concerns about prejudice because the
devices no longer exist, and evidence of their condition in 2019 may now be harder to
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obtain. But that does not automatically render the whole counterclaim, including the
pre-2019 non-delivery case, trial-unworthy.
[35] There is also force in iPoint's submission that Primall's prejudice case is
incomplete in one important respect. When Primall amended its plea in 2020 to rely
on the 2019 tender, someone must have furnished instructions about that tender, the
devices tendered, and their whereabouts and condition. Primall identified certain
witnesses said to be unavailable or uncooperative, but it did not identify the person or
persons who furnished the factual material for the 2020 amendment, nor did it explain
why those persons could no longer assist.
[36] I accept that faded recollection, unavailable devices and changed personnel
create real prejudice. But prejudice of that kind does not automatically justify dismissal.
The question is whether the prejudice is so profound that a fair trial is no longer
possible. On the present affidavits, and having regard to the history as a whole, that
threshold has not been crossed.
[37] This is therefore not one of the rare cases in which the Court should exercise
its inherent power to dismiss the counterclaim without a trial. The application for
dismissal must fail.
Amendment application
[38] Primall submitted that the amendment application is not properly before me
because the notice of intention to amend lapsed when iPoint failed to launch the rule
28(4) application within the prescribed period after objection. Primall relied heavily on
Sasol South Africa Ltd t/a Sasol Chemicals v Penkin,6 where it was held that a notice
to amend had lapsed because amended pages were not delivered within the time
permitted by Rule 28(5) and (7), with the result that "there was no extant notice of
intention to amend" capable of causing prejudice. That judgment also emphasised,
however, that less‑than‑perfect procedural steps must be assessed through the lenses
6 2024 (1) SA 272 (GJ).
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of prejudice and the interests of justice, and that the Rules are not to be applied "rigidly,
inflexibly or without due regard to the exigencies of a particular case".
[39] There is force in that submission. iPoint did not comply with the time period
contemplated by Rule 28(4) and did not file a formal application for condonation.
Primall was entitled to raise that defect and did so clearly in both its papers and its oral
argument.
[40] It is not necessary, however, to decide the amendment application solely on
that procedural basis. Even if it is assumed, without deciding, that the lateness could
be condoned and that the Court should proceed to the merits, the amendment in its
present form cannot be granted.
General principles
[41] The principles governing amendments are well established. Amendments
should generally be allowed so that the real issues between the parties may be
properly ventilated, unless the amendment is mala fide or would cause injustice that a
costs order, postponement or suitable directions cannot cure. The mere fact that an
amendment is sought late is not, without more, decisive.
[42] At the same time, an amendment must produce a coherent and triable pleading.
The court does not ask whether the amended case will succeed. It asks whether the
amended case is properly pleaded and whether the other party can fairly be required
to plead to it.
Merits of the proposed amendment
[43] A substantial feature of the proposed amendment is its response to Primall's
2019 tender. iPoint says that the devices tendered by Primall were in disrepair,
outdated, or otherwise incapable of serving their intended purpose, and that the tender
therefore did not constitute proper compliance with Primall's contractual obligations
under clause 15.3 of the Licence Agreement.
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[44] In principle, iPoint is entitled to plead a response to a defence raised by Primall.
It is also entitled, within limits, to update the quantification of a damages claim as
litigation proceeds. In that sense, not every complaint Primall has advanced against
the amendment is well-founded.
[45] The problem is the way the amendment is formulated. Primall is correct to
submit that a case based on non-delivery or refusal to deliver is not the same as a
case based on defective delivery. They depend on different factual allegations. If iPoint
wishes to say that the 2019 tender was not compliant because the devices were
defective, it must plead the material facts supporting that conclusion with sufficient
clarity. Broad allegations of disrepair or unusability, without more, do not adequately
identify the case Primall must meet.
[46] This does not require iPoint to plead all its evidence, but it must plead more
than a conclusion. An expert notice cannot substitute for a properly pleaded cause of
action. Expert opinion may support pleaded facts; it cannot introduce them.
[47] Primall is also correct that the proposed amendment's structure is problematic.
During argument, it pointed out that some parts of claim B are proposed for deletion,
while other paragraphs dependent on that structure are retained; that the proposed
amendment to claim C introduces a revised damages model and some 56 devices
without clear reconciliation with the existing allegations; and that the proposed new
paragraph 19.4 does not sit coherently with the retained paragraphs 19.3 and 19.5.
[48] The latter letter from iPoint's attorneys, proposing further textual adjustments,
reinforces rather than resolves the difficulty. It suggests that the amendment before
the Court was still being reformulated. A court should be slow to grant leave to amend
where the proposed amendment is not yet settled and coherent.
[49] There is also a prejudice dimension. Because the devices no longer exist, a
[49] There is also a prejudice dimension. Because the devices no longer exist, a
late shift to a defective-delivery case further complicates the practical difficulty of
meeting it. That does not mean such a case can never be pleaded. It does mean that,
if it is to be pleaded after so much time has passed, it must at least be pleaded clearly
and coherently. The present formulation does not achieve that.
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[50] For those reasons, even assuming, in iPoint's favour, that the procedural defect
could be condoned, the amendment should be refused on its merits. The Court
therefore does not find it necessary to decide whether condonation should formally be
granted. For present purposes, that question is neither here nor there, because even
on the assumption that condonation were available, the proposed amendment does
not disclose a coherent case fit for amendment.
Costs
[51] The dismissal application raised substantial issues of fact, procedure and
fairness. It fails, and Primall must bear the costs occasioned by it. The amendment
application was opposed on both procedural and substantive grounds. iPoint does not
obtain leave to amend and must bear the costs of that application. Primall's
employment of two counsel was justified due to the long and complex procedural
history and complex factual matrix.
Order
[52] The following order is made:
1. The plaintiff's application to dismiss the first defendant's counterclaim is
dismissed with costs to be taxed on scale B.
2. The first defendant's application for leave to amend its counterclaim is
dismissed with costs to be taxed on scale B, including the costs of two
counsel where so employed.
____________________________
WJ du Plessis
Judge of the High Court, Gauteng Division,
Johannesburg
Date of hearing:
10 February 2026
Date of judgment:
22 April 2026
For the plaintiff (Primall Media):
G Wickings SC and LVR van Tonder
instructed by KWA Attorneys
For the first defendants (iPoint
Marketing):
AC Oosthuizen SC instructed by Teresa
Erasmus Attorneys