IN THE HIGH COURT OF SOUTH AFRICA
FREE STATE DIVISION, BLOEMFONTEIN
In the matter between:
MARKET LIQUOR STORE CC
[Registration number: 1995/049757 /23]
and
ANDERSON 4 EYECARE INC.
[Registration number: 2014/108675/21]
MEGAN LEWIS
Not reportable
Case no: 4783/2025
PLAINTIFF
FIRST DEFENDANT
SECOND DEFENDANT
Neutral citation: Market Liquor Store CC v Anderson 4 Eyecare Inc (4783/2025)
[2026] ZAFSHC 249 ( 16 April 2026)
Coram: CRONJEAJ
Heard: 26 March 2026
Delivered: ff his judgment was handed down electronically by circulation to
the parties' representatives by email and released to SAFLII. The date and time for
hand-down is deemed to be 12h45 on 16 April 20261CD1]
Summary: Request for reasons for cost order against defendants for
postponement of summary judgment application and rule 30 proceedings - plaintiff
enrolled the matter and filed its practice note and heads of argument - defendants
filed a rule 30 notice stating that leave to defend was granted and that the rule 30
notice should be disposed of first - as pleadings stood and considering the
fo1mulation of the rule 30 notice the summary judgment proceedings could proceed
- court exercising discretion to postpone both the summary judgment and rule 30
proceedings to deal with both simultaneously - defendants ordered to pay the costs
of the postponement.
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REASONS
Cronje AJ
[I] The application for summary judgment came before me on 26 March 2026.
After submissions were made by the legal representatives for the patties, I ened on
the side of caution and granted a postponement of the application. The order I made
reads:
'IT IS ORDERED THAT:
[l] The summary judgment is postponed to 30 April 2026.
[2] The Rule 30 proceedings and the summary judgment will be heard concurrently on 30
April 2026.
(3] Heads of Argument in respect of both applications to be served in terms of the Practice
Directives of this court.
[4] The first and second defendants to pay the costs of the postponement jointly and severally,
on scale B.'
[2] On 14 April 2026, the defendants filed a Notice in terms of Rule 49(I)(c) of
the High Court Rules requesting that I furnish the reasons for the cost order. To
address the request, a summary of the matter's hist01y is apposite. This was to some
extent already placed on record during the arguments presented by the legal
representatives.
[3] The plaintiff served an application for summary judgment on the attorneys
of the defendants on 8 December 2025 and on 9 December 2025 filed it at comt. The
defendants served their opposing affidavit on 16 January 2026 and filed it at court
on 20 January 2026. On 21 January 2026, the plaintiff filed a notice to remove the
summary judgment application from the roll after the defendants had served and
filed their opposing affidavit.
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[ 4] On 17 March 2026, the plaintiff served a notice of set down of the
application on the defendants, and the notice was filed with the comt on 18 March
2026. The plaintiff served its practice note and heads of argument on the defendants
on 18 March 2026. On 20 March 2026, the date upon which the defendants had to
file their practice note and heads of argument in accordance with the rules of this
Court, the defendants elected to file a Notice in terms of Rule 30, which was served
on the plaintiffs attorneys on the same date.
[ 5] In the notice, the defendants states that the delivery of the notice of set down
constitutes an irregular step in that the plaintiff elected to abandon its application for
summary judgment by unambiguously granting leave to the defendants to defend the
action after careful consideration (of what I assume the plea and opposing affidavit),
and that the defendants shall be unduly prejudiced by incuning unnecessary costs in
arguing a summary judgment application in respect of which leave to defend was
granted. The plaintiff was afforded the opp011unity to remove the cause of complaint
within ten 10 days from the date of delivery of the notice, failing which the
defendants would apply to have it set aside as an irregular step.
[ 6] On 26 March 2026, the plaintiff was represented by Mr R van der Merwe
and the defendants by Mr E Lubbe. Mr van der Me1we submitted that the rule 30
notice is an abuse of process. Summary judgment is expeditious. He referred to Le
Bonheur Wine Estate (Pty) Ltd v Stellenbosch Vineyards (Pty) Ltd (Neethling and
Another as Third Parties), 1 where it was held:
'[31] Rule 30(3) empowers a High Court to set aside a "proceeding or step" which, in the court's
opinion, is "irregular or improper". It is trite law that rule 30 may only be invoked when a complaint
relates to an irregularity in the form of a proceeding or step taken, rather than in relation to a matter
of substance (see Singh v Vorkel 1947 (3) SA 400 (C) at 406 [also reported at [1947] 1 All SA 72
(C)-Ed]; Odendaal v De Jager 1961 (4) SA 307 (0) at 3 l0F-G'.
1 Le Bonheur Wine Estate (Pty) Ltd v Stellenbosch Vineyards (Pty) Ltd (Neeth/ing and another as Third
Parties) [2025) JOL 69172 (WCC).
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[7] He submitted that the rule 30 notice can be summarily dismissed . If the
rule 30 does not apply, a court is entitled to make a finding and hear the matter on
the merits. The notice is an abuse of process, and if the matter is postponed, the
defendants should pay the wasted costs on scale B.
[8] Mr Lubbe submitted that the set down is irregular and the time within which
the plaintiff has to cure the irregularity has not expired. He submitted that letters
were exchanged between the parties and that hearing the application would
constitute an irregular step. Those letters were not before me, and I could not
consider documents outside the papers that were before me. He implored me to
dismiss the summary judgment application or postpone the application and the
rule 30 proceedings, and that the plaintiff should pay the costs of the postponement
on att0111ey-and-client scale.
[9] Mr van der Merwe replied that rule 30 does not relate to substance by
procedure. The practice note and heads of argument were already filed, and costs
incurred. The belated filing of the notice, if the court is inclined to grant the
defendants' request, has resulted in wasted costs, and the defendants should therefore
pay.
[ 1 0] Having heard the submissions of Mr van der Merwe and Mr Lubbe, I was
inclined to deal with the summary judgment application. However, in order to keep
the door open to the defendants to present an argument on the summary judgment
application or to make submissions in respect of the applicability of rule 30, I made
the cost order aforesaid.
[11] It is trite that a plaintiff is dominus litis in respect of the proceedings. The
rules are designed to ensure orderly litigation unless good grounds exist not to
comply with them. This is notwithstanding that the rules are for the court and the
court not for the rules. When I perused the notice and bearing in mind the formulation
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of paragraph I. I thereof, I could not find support for the argument that merely
granting a defendant an oppmtunity to defend a matter implies that a plaintiff will
not proceed with summary judgment. The rules provide that upon service of a
summons, a defendant may elect to file a notice of intention to defend and a plea.
Thereafter, a plaintiff may elect to launch summary judgment proceedings upon
which the defendant then may file an opposing affidavit. This is what happened in
the matter.
[12] I could therefore not find any reason why the defendants could not file a
practice note and heads of argument but rather elected to file the notice. I reluctantly
granted a postponement of the matter, notwithstanding that a substantive application
for postponement was not filed.
[13] In view of the papers that were before me and the arguments, I was of the
view that it would be in the interest of justice and fairness that the order I made be
granted and that the defendants pay the wasted costs.
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PR CRONJE
ACTING ~ -~HE HIGH COURT
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Appearances
For the plaintiff:
Instrncted by:
For the first defendant:
Instructed by:
R Van der Merwe
EG Cooper Majiedt Inc,
Bloemfontein
E Lubbe
Green Attorneys,
Bloemfontein.
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