THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
Case no 2024/009702
In the matter between:
HUMBULANI FREDDY MANENZHE First Applicant (in leave to appeal)
NORHA MOHLAOLA MANENZHE Second Applicant (in leave to appeal)
and
SPARTAN SME FINANCE (PTY) LTD Respondent (in leave to appeal)
JUDGMENT: LEAVE TO APPEAL
DU PLESSIS J
Introduction
[1] This is an application for leave to appeal against the whole of the judgment and
order granted on 20 February 2026. The main application was brought by Spartan
SME Finance (Pty) Ltd (Spartan, the applicant in the main application) for payment of
R6 787 203,98, together with interest and costs on the attorney-and-own-client scale,
arising from guarantees executed by the respondents in the main application and a
written acknowledgement of debt. The parties will be referred to as they were in the
(1) REPORTABLE: Yes☐/ No ☒
(2) OF INTEREST TO OTHER JUDGES: Yes☐ / No ☒
(3) REVISED: Yes ☒ / No ☐
Date: 23 April 2026
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main application. The matter was enrolled on the opposed motion roll on 18 February
2026.
[2] When the matter was called there was no condonation application for the late
filing of the answering affidavit, as had been required by an order of court granted on
24 April 2024 by agreement between the parties. I indicated that, in the absence of
such condonation, there was in substance no answering affidavit properly before the
court. Counsel for the respondents then applied from the bar for a postponement,
which I refused. I treated the answering affidavit as not properly on record and granted
judgment on the founding papers.
[3] The respondents now seek leave to appeal. Their grounds can be grouped into
three issues: the refusal of a postponement, the treatment of the answering and
supplementary affidavits, and the correct approach on the merits.
[4] Leave to appeal may only be given where the appeal would have a reasonable
prospect of success, or where some other compelling reason exists for it to be heard.
Section 17(1)(a) of the Superior Courts Act
1 has raised the threshold: a mere
possibility of success, an arguable case, or one that is not hopeless, is not enough.
There must be a sound, rational basis to conclude that another court would come to a
different conclusion. 2 The respondents accepted this at the hearing, but submitted
that they have met the test. For the reasons that follow, they have not.
The postponement
[5] The refusal for postponement did not rest on a single late step treated
mechanistically. The difficulty lay in the cumulative pattern of non-compliance, centred
on a consent order which the respondents disregarded for almost two years.
[6] On 24 April 2024 Mia J, by agreement between the parties, ordered the
respondents to file their answering affidavit together with a substantive condonation
application for its late filing by 16 May 2024. The order stipulated that, failing such
1 10 of 2013.
1 10 of 2013.
2 MEC for Health, Eastern Cape v Mkhitha 2016 JDR 2214 (SCA) para 17.
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compliance, the respondents would not be entitled to file any further affidavits. The
respondents thus expressly undertook to regularise their late answering affidavit by a
substantive condonation application.
[7] The respondents uploaded an answering affidavit dated 16 May 2024, but no
condonation application was ever filed. Not in May 2024, and not in the twenty months
that followed. The order has never been varied or set aside. It remains binding.
[8] The subsequent conduct reinforced the picture. Heads of argument were filed
only after the applicant successfully compelled them to do so in November 2025. The
respondents did not cooperate in preparing a joint practice note. They filed a
supplementary answering affidavit and an application to admit it, even though the April
2024 order expressly prohibited them from filing further affidavits in the absence of
condonation. Despite repeated notice of the applicant stance in its replying affidavit
and heads, no explanation for non-compliance was placed before the court on
affidavit.
[9] A postponement is an indulgence. An applicant must show good cause,
including a full explanation for the circumstances giving rise to the request, the steps
taken to avoid it, and the prejudice to all parties and to the administration of justice.
3
The respondents placed no explanation under oath before the court. The request for
a postponement was made orally from the bar, only after the court pointed out that
there was no condonation application as required by the April 2024 order.
[10] In these circumstances, the refusal of a postponement was a proper exercise
of the discretion. The respondents’ prejudice flows from their own failure, through
successive sets of attorneys, to comply with a binding order and the rules. The
applicant’s prejudice, namely a substantial commercial claim left unresolved for years
despite diligent prosecution, is obvious. There is no sound basis to conclude that
another court would exercise the discretion differently.
another court would exercise the discretion differently.
3 Myburgh Transport v Botha 1991 (3) SA 310 (Nm) at 315F–G.
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Supplementary answering affidavit
[11] The approach is consistent with Grootboom v National Prosecuting Authority,4
where the Constitutional Court warned against the “monotonous” disregard of rules
and directions and emphasised that condonation and related indulgences are not for
the asking, particularly where there is no proper explanation.
[12] Counsel for the respondents correctly accepted that no condonation application
for the late answering affidavit was ever brought. The submission was that this should
not have been dispositive, because the answering affidavit had been uploaded, the
applicant had replied to it, and the court should, in the interests of justice, have either
treated it as properly on record or at least have adjudicated the interlocutory
application for leave to file the supplementary answering affidavit.
[13] This overlooks the terms of the April 2024 order. That order did not merely
“direct” the filing of a condonation application. It expressly prohibited the filing of any
further affidavits if condonation was not sought by 16 May 2024. The prohibition took
effect when the respondents chose to file an answering affidavit without the required
condonation, and it remained in force on the day of hearing. The order had not been
varied or set aside.
[14] A court is bound to give effect to orders that are in force. A party who seeks to
be relieved from the operation of such an order must apply for appropriate relief. The
respondents never did so. They did not seek to vary or rescind the April 2024 order,
nor did they bring the condonation application that was the court-ordered ticket to their
opposition.
[15] On a proper reading of the April 2024 order, two consequences follow. First,
the answering affidavit, filed without the required condonation, was not properly before
court. Second, the supplementary answering affidavit was itself filed in breach of the
prohibition on further affidavits. An interlocutory application to admit a supplementary
prohibition on further affidavits. An interlocutory application to admit a supplementary
4 2014 (2) SA 68 (CC) para 34–35.
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affidavit cannot cure the absence of the answering affidavit it purports to supplement,
and cannot override a subsisting court order.
[16] The respondents relied on the principle that courts are reluctant to penalise
litigants for their attorneys’ defaults. That principle is accepted. But as the Appellate
Division held in Saloojee and Another NNO v Minister of Community Development ,
5
and as the Constitutional Court confirmed in Ferris v FirstRand Bank Ltd 6 and
Turnbull-Jackson v Hibiscus Coast Municipality ,7 there is a limit beyond which the
negligence or indifference of a legal representative will be imputed to the litigant.
[17] This is such a case. Two successive firms of attorneys, over a period of almost
two years, did not take the single step that the April 2024 order required. The order
itself was annexed to the answering affidavit; the respondents thus knew of it. The
applicant repeatedly raised the non-compliance in its replying affidavit and in its heads
of argument. Yet no condonation application was ever brought, and no explanation
under oath was proffered. To hold that the respondents can nevertheless rely on their
attorneys’ defaults would be precisely the indulgent approach Saloojee, Ferris and
Turnbull
-Jackson caution against.
[18] There is accordingly no reasonable prospect that another court would find that
the answering affidavit, or the supplementary affidavit, was properly before me, or that
they should have been treated as such despite the respondents’ persistent and
unexplained non-compliance with a binding order.
The merits
[19] Once it is accepted that there was no answering affidavit properly before court,
the merits fall to be determined on the applicant’s founding papers. The applicant
based its claim on the written facilities, the guarantees, the acknowledgement of debt
and a certificate of balance dated 31 December 2023 reflecting the outstanding
amount of R6 787 203,98.
5 1965 (2) SA 135 (A) at 141H–142B.
6 2014 (3) SA 39 (CC) para 25.
5 1965 (2) SA 135 (A) at 141H–142B.
6 2014 (3) SA 39 (CC) para 25.
7 2014 (6) SA 592 (CC) para 25–26.
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[20] In Rossouw v FirstRand Bank Ltd t/a FNB Home Loans8 the Supreme Court of
Appeal confirmed that, where parties have contractually agreed to a certificate of
balance mechanism, a certificate signed by the creditor is prima facie proof of the
debtor’s indebtedness, and the debtor bears the evidential burden to show that the
amount is incorrect
[21] The respondents contend that they had defences of payment, calculation errors
and a possible counter -claim, relying on the supplementary answering affidavit and
the forensic report. But those contentions were never properly placed before court
because the affidavits themselves were not properly on record.
[22] On the uncontested facts, the applicant established its claim. There is no
reasonable prospect that another court would interfere with the order on the merits.
Compelling reasons
[23] The respondents also rely on section 17(1)(a)(ii) of the Superior Courts Act,
contending that there are “compelling reasons” to grant leave to appeal, including
alleged constitutional implications for their right of access to courts.
[24] The issues raised in this matter do not involve any novel question of law. They
concern the application of settled principles: the binding nature of court orders, the
requirements for condonation and postponement, the limits of reliance on attorney
negligence, and the evidential effect of a contractual certificate of balance. There is no
compelling reason to grant appeal.
Order
[25] The following order is made:
1. The application for leave to appeal is dismissed with costs.
8 2010 (6) SA 439 (SCA) para 47.
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________
WJ du Plessis
Judge of the High Court Gauteng Division,
Johannesburg
Date of hearing:
20 April 2026
Date of judgment:
23 April 2026
For the applicant:
PL Carstensen SC instructed by
Matojane Malungana Inc
For the respondent:
M Reineke instructed by Claassen Inc