SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in
compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL DIVISION, PIETERMARITZBURG
CASE NO: 15334/2024P
In the matter of:
NKAYISHANA TRADING (PTY) LIMITED FIRST APPLICANT
(Registration Number: 2012/008596/07)
SIKHUMBUZO SELBY LUNGA SECOND APPLICANT
(Identity Number: 7[...])
and
THE STANDARD BANK OF SOUTH AFRICA LIMITED RESPONDENT
_____________________________________________________________________
ORDER
_____________________________________________________________________
The following order is granted:
1. The bar in terms of the plaintiff’s notice of bar dated 3 February 2025 is
removed.
2. The defendants are granted leave to deliver their plea(s) to the plaintiff’s
summons and particulars of claim, issued on 7 October 2024, within ten (10) days of
this order.
3. The defendants are directed to pay the costs of this app lication on an attorney
and client scale.
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_____________________________________________________________________
JUDGMENT
_____________________________________________________________________
Pietersen AJ:
[1] This is an application for the removal of bar in terms of Uniform rule 27(1). On
7 October 2024 , the respondent (the plaintiff) instituted action against the applicants
(the defendants) and claimed payment of R321 965.63 and R472 055.55, together
with interest and costs, as well as the delivery of various movable assets. The parties
will be referred to as they are in the main action. The plaintiff’s claims against the first
defendant arise from various agreements entered into between the p arties, which the
plaintiff contend s have been breached by the first defendant. The plaintiff seeks
judgment against the second defendant based on a written guarantee concluded by
the sec ond defendant in terms of which he undertook a principal and independent
obligation in favour of the plaintiff for the payment of all debts which the first defendant
might owe to the plaintiff.
[2] On 15 November 2024 , the defendants delivered their notice of intention to
defend the action. As a result, the defendants’ plea was due on 13 December 2024 .
After the lapse of the dies non period on 15 January 2025 , the plaintiff afforded an
indulgence to the defendants to deliver their plea by 27 January 2025. This period was
subsequently extended until 31 January 2025. The defendants remained in default and
on 3 February 2025 , the plaintiff advised the defendants that no further indulgences
were to be granted and on the same day, a notice of bar was delivered.
[3] On 4 February 2025, the day after receipt of the plaintiff ’s notice of bar, the
defendants’ attorney addressed a letter to the plaintiff’s attorneys to advise that the
defendants’ attorney is experiencing a family crisis and that the defendants’ plea
cannot be delivered within the dies indicated in the notice of bar . An undertaking was
cannot be delivered within the dies indicated in the notice of bar . An undertaking was
provided that the defendants’ plea would be delivered on 12 February 2025, two days
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after expiry of the dies. The plaintiff ’s attorney responded and advised that she was
taking instructions and would revert. Two days later, on 6 February 2026, the plaintiff’s
attorney advised the defendants’ attorney that she had not yet received instructions
but, in the absence of a response, the defendants’ attorney was requested to ensure
that their clients’ plea was delivered within the dies indicated in the notice of bar.
[4] The dies for delivery of the defendants’ plea expired on 10 February 2025. The
next day, 11 February 2025 , the defendants’ attorney’ s co-director, Mr Mthembu,
addressed a letter to the plaintiff’s attorney to advise that his colleague is still ‘tied up
with family matters’ and the initial undertaking of the defendants’ plea being delivered
by 12 February 2025 was repeated. On 12 February 2025 , the plea was duly
delivered. On 13 February 2025 , the plaintiff ’s attorney responded and advised that
the defendants are under bar and that she held instructions to proceed with an
application for default judgment. The defendants’ attorney was requested to advise
whether they intend bringing an application to uplift the bar. The defendants
proceeded to deliver this application on 26 February 2025.
[5] In argument before me , Mr Khumalo, who appeared for the defendants,
submitted that the defendants’ plea was delivered a mere two days out of time and
that the defendants had provided a reasonable explanation for their default due to the
urgent family crisis experienced by the defendants’ attorney. The defendants argued
that the plaintiff’s attorney was unreasonable in not consenting to the removal of the
bar, particularly since there was no prejudice to the plaintiff in accepting the plea two
days out of time. The defendants argued that their constitutional right to a fair trial
would be violated if they were deprived of an opportunity to present their case at trial.
[6] The defendants further submitted that they enjoy prospects of success in the
[6] The defendants further submitted that they enjoy prospects of success in the
main action, as they dispute the amounts claimed by the plaintiff and the plaintiff has
failed to plead that a proper search has been made in respect of the missing Covid -19
agreement. The defendants further submitted that one of the three guarantees
pleaded by the plaintiff contains an election by the parties that the provisions of the
National Credit Act 34 of 2005 (the NCA) be made applicable to the guarantee. The
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other two guarantees contain a contrary recording of the guarantees not being subject
to the provisions of the NCA.
[7] The plaintiff submitted that the defendants failed to provide a reasonable
explanation for their default and that the defendants ought to explain two periods of
default, being the period before the notice of bar was served as well as the period after
the notice of bar was served. The plaintiff further submitted that there is a lack of bona
fides on the part of the defendants and they failed to present a bona fide defence to
the action . Mr Ploos van Amstel , who appeared on behalf of the plaintiff, further
submitted that the defendants’ argument before me is completely detached from what
was contained in their scant founding affidavit.
[8] Rule 27(1) provides that ‘[i]n 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 the se rules or by an order of court’.
Condonation is not a mere formality 1 and the party seeking condonation must satisfy
the court that there is sufficient cause for excusing the non-compliance.2
[9] The requirement to show good cause gives the court a wide discretion3 and this
discretion needs to be exercised with regard to all the circumstances of the matter .4
The requirements in order to show good cause, which are well known, are:
(a) A reasonable explanation in respect of the delay , with sufficient particularity to
enable the court to understand how the delay came about and to assess the
applicant’s conduct and motives;5
(b) The application must be bona fide and not made with the intention of delaying
the opposite party’s claim;6 and
(c) The applicant should satisfy the court that he has a bona fide defence which is
based upon facts which, if proved, would constitute a defence.7
1 Gumede v Road Accident Fund 2007 (6) SA 304 (C) (Gumede) para 7.
2 Ferreira v Ntshingila 1990 (4) SA 271 (A) at 281G-H.
2 Ferreira v Ntshingila 1990 (4) SA 271 (A) at 281G-H.
3 Du Plooy v Anwes Motors (Edms) Bpk 1983 (4) SA 212 (O) (Du Plooy) at 216H-217A.
4 Gumede para 7.
5 Silber v Ozen Wholesalers (Pty) Ltd 1954 (2) SA 345 (A) at 353A-B.
6 Grant v Plumbers (Pty) Ltd 1949 (2) SA 470 (O) (Grant) at 476.
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[10] As indicated above, the defendants remained in default of delivering their plea ,
notwithstanding two indulgences afforded to them by the plaintiff’s attorneys. The
defendants also benefitted from the dies non period, which commenced shortly after
the initial dies for delivery of their plea expired on 13 December 2024. I t was , of
course, open to the plaintiff’s attorney to deliver a notice of bar much earlier when the
dies for delivery of the plea expired initially. The election not to do so and the
subsequent indulgences afforded to the defendants were extremely courteous and
collegial. One can appreciate the plaintiff’s position communicated on 3 February 2025
that no further indulgences for the delivery of the plea would be granted.
[11] Notwithstanding the above history, it remains that the defendants ultimately only
need to explain their default of delivering the plea within the dies of the notice of bar.
The only period of default for consideration is accordingly the two days after the dies in
terms of the notice of bar expired. The defendants’ explanation for their default is that
their attorney experienced ‘an urgent family crisis’. No further particulars are provided.
However, to the credit of the defendants, their plea was subse quently delivered on 12
February 2025, in accordance with their attorney’s undertaking on 4 February 2025.
[12] It is not disputed before me that the parties engaged in settlement negotiations
during January and February 2025, while the defendants’ plea was still outstanding.
However, it seems clear from the evidence that a suspension of the dies was never
agreed to during these discussions. The defendants’ plea, therefore, remained due in
terms of the rules. However, I am prepared to accept that the application is bona fide,
considering that there were settlement discussions ongoing at the time. I further take
into account the defendants’ immediate committal to 12 February 2025 as the day on
into account the defendants’ immediate committal to 12 February 2025 as the day on
which their plea would be delivered and their subsequent compliance with this
undertaking.
7 Dalhouzie v Bruwer 1970 (4) SA 566 (C) at 572C-D; Du Plooy at 217A; and Grant at 476.
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[13] The defendants’ explanation for their default is not as detailed as it could be.
However, it may be that circumstances prevented the disclosure of further particulars
in respect of the ‘urgent family crisis’. Considering that the plea was ultimately only
delivered two days late and in accordance with the defendants’ undertaking, I am
prepared to accept the explanation as reasonable in the circumstances.
[14] The plaintiff further submitted that the defendants have failed to advance a
bona fide defence, insofar as they seek to dispute the amounts claimed by the plaintiff.
The plaintiff seeks to rely in this regard on clause 18.14 of the credit and overdraft
agreements and clause 19.18 of the Covid-19 agreement, which both read as follows:
‘A certificate signed by any manager of the bank’s managers, whose appointment need not be
proved, specifying the amount which Nkayishana owes to the bank and stating that such
amount is due, owing and payable by Nkayishana to the bank, will on its mere production be
sufficient proof of any amount due and/or owing by the bank in terms of the agreements unless
the contrary is proved.’
[15] It is so that the above clause allows the plaintiff to rely on a certificate of
balance as sufficient proof of any amount owing to the b ank. However, the clause also
stipulates that the plaintiff shall be entitled to rely on such certificate ‘unless the
contrary is proved’, thus leaving the door open to the defendants to present evidence
at trial to substantiate their denial of the correctness of the claim amounts . Thus, the
defendants are entitled to present evidence in order to dispute the amount owi ng to
the plaintiff in terms of each agreement. I am therefore not persuaded that the
defendants have failed to present a bona fide defence which would constitute a
defence in the action.
[16] The application must therefore succeed.
[17] However, regarding costs, the defendants have no one to blame but
[17] However, regarding costs, the defendants have no one to blame but
themselves for their present position and the need to approach this court with this
application. The defendants presented a scant founding affidavit and failed to deliver a
replying affidavit. The defendants further burdened the papers before this court with a
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supplementary founding affidavit, delivered without leave the day before the hearing of
this application. The supplementary affidavit did not contribute at all to the issues in
this application and the defendants did not request its admission.
[18] The defendants’ argument s in their heads of argument and before me were
further completely detached from the bare allegations contained in their founding
affidavit. It seems clear that the defendants attempted to bolster t heir case with legal
argument, instead of dealing with the facts of the matter. For these reasons , I am not
prepared to order that costs be in the cause, as requested by the defendants. A
punitive costs order against the defendants is justified.
[19] I make the following order:
1. The bar in terms of the plaintiff’s notice of bar dated 3 February 2025 is
removed.
2. The defendants are granted leave to deliver their plea(s) to the plaintiff’s
summons and particulars of claim, issued on 7 October 2024, within ten (10) days of
this order.
3. The defendants are directed to pay the costs of this application on an attorney
and client scale.
_____________________
PIETERSEN AJ
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Date of hearing: 12 May 2026
Date of Judgment: 15 May 2026
APPEARANCES
Standard Bank of South Africa Limited:
Instructed by: Cox Yeats
Ncondo Chambers
45 Vuna Close
Umhlanga Ridge
Durban
KwaZulu-Natal
Tel: 031 536 5800
Email: adalais@coxyeats.co.za /
pmekute@coxyeats.co.za
Ref: A Dalais / P Mekute / 050S00980000125
c/o Stowell & Co
295 Pietermaritz Street
Pietermaritzburg
Tel: 033 845 0500
E-mail: sarahw@stowell.co.za
Ref: S Myhill
Nkayishana Trading (Pty) Ltd
And
Sikhumbuzo Selby Lunga:
Instructed by: Sibeko SS Attorneys
E-mail: Nglanhla@ssslegal.co.za
infor@ssslegal.co.za; darran@ssslegal.co.za
c/o BPL Nota Attorneys
Regus Business Centre
9
Building B, Top Floor
9 Armitage Road
Bird Sanctuary
Pietermaritzburg