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[2026] ZAFSHC 270
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Mdogo Property and Plant (Pty) Ltd v Lurama 149 (Pty) Ltd t/a Impa Paints Curie (A69/2025) [2026] ZAFSHC 270 (29 April 2026)
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IN THE HIGH COURT OF
SOUTH AFRICA
FREE STATE DIVISION,
BLOEMFONTEIN
Not
Reportable
Case no: A69/2025
In
the matter between:
MDOGO
PROPERTY AND PLANT (PTY) LTD
APPELLANT
and
LURAMA
149(PTY) LTD t/a IMPA PAINTS CURIE
RESPONDENT
Neutral
Citation:
Mdogo Property and Plant
(Pty) Ltd v Lurama 149(Pty)Ltd./a Impa Paints Curie
(A692025)
[2026] ZAFSHC 270
(29 APRIL 2026)
Coram:
NAIDOO
et MOLITSOANE JJ
Heard
:
6 October 2025
Delivered
:
29 April 2026
Summary:
Condonation application
–
delivery of the expert notice
–
summary of the evidence of the expert
–
whether the appellant has proven good or
sufficient cause to purge the delay.
ORDER
1
The appeal is dismissed with costs, which include the costs of
counsel on scale B.
JUDGMENT
Molitsoane J (Naidoo J
concurring)
Introduction
[1]
This is an appeal against the dismissal of
the application to condone the late filing of the expert notice as
well as the summary
of the expert’s opinion and reasons as
contemplated in rule 24(9)
(a)
of
the Magistrates Court Act 32 of 1944 (the Act). Any reference to
rule(s) is to the Magistrates Court rule(s) promulgated in terms
of
the Act.
Factual background
[2]
On 17 November 2017, the appellant who was
the plaintiff (Mdogo) in the court a quo and the respondent who was
the defendant (Impa)
in the court a quo, entered into a written lease
agreement in terms of which Impa leased a certain immovable property
from Mdogo.
The agreement was mutually terminated by the parties on
15 November 2022. Mdogo instituted an action against Impa following
the
termination of the agreement based on alleged breaches of the
lease agreement, for water and electricity allegedly consumed by the
respondent, repair work on the leased property and loss of income
following the termination.
[3]
The trial commenced on 16
July 2024. It was scheduled to
continue on 17 July 2024 but did not proceed on that day. Before
the trial commenced on 17 July
2024, Mdogo served an expert
notice and summary of the opinion and reasons of its expert on Impa.
Impa in turn served a rule 60/60A
notice alleging that the step taken
by Mdogo did not comply with the court rules, alternatively, was
irregular. The filing of the
rule 60/60A notice prompted Mdogo to
approach the court a quo with an application seeking condonation for
the late delivery of
its expert notice and summary. Impa opposed the
application. The court a quo after hearing the submissions of the
parties dismissed
the application with costs.
[4]
The judgment of the court a quo is assailed primarily on the
following
grounds:
a)
That the court a quo erred in finding that the explanation
for the
late delivery of the notice as well as the summary was not bona fide;
b)
That the court a quo erred in holding that, in allowing
the
condonation, Impa would be prejudiced;
(c)
Concomitant with the issue of prejudice, that there was nothing
unusual or impermissible for expert
witnesses to testify about costs
of repairs even though such repairs had already been completed.
In
the court a quo
[5]
The nub of Mdogo’s quest to lead expert witness testimony
appears to be a mischaracterisation of the issue in dispute.
According to Mdogo, the factors as set out below led to its decision
not to deliver the notice and expert report. It sets out the reasons
as follows in the founding affidavit:
‘
4.2.
The Applicant presented the evidence of three factual witnesses…
and confirmed its intention
to call Mr. Etienne Lubbe (Mr Lubbe), who
was the contractor responsible for the fair repair work at the
premises….
4.3.
Concerning the repair work for which the applicant intends to call Mr
Lubbe the Applicant’s
case
h
as summarized in
paragraphs 5.11 to 5.4 of the particulars of claim is that following
any inspection conducted by its representatives
and those of the
Respondent on 30 December 2022, its representatives identified the
necessary repair work needed to restore the
leased premises to their
original condition at the commencement of the lease.
4.4.
Mr Lubbe was subsequently tasked with providing a quotation for these
repairs…
4.5.
In response to these allegations, the Respondent pleaded that the
Applicant only identified the
flooring in the room used as a tint
room… which was covered in paint that required removal.
Additionally, the Applicant
noted that the walls needed to be
repainted to a white colour, and there was necessary repair work on
the door frame, as indicated
during the final inspection. These
defects were accordingly corrected.
4.6.
Based on the plea, I was of the view that the dispute concerning
the repairs centred on whether the defects that needed to be repaired
were present or absent. This, in my view, necessitated factual rather
than expert testimony.
4.7.
Additionally, I believed that the dispute has reflected in the
plea would simply require the courts to make credibility findings
based on the reliability of the factual evidence by the witnesses as
to the presence or absence of the defects, as opposed to relying
on
expert testimony on the nature and cause of the defects that required
repair work.
(Emphasis added.)
4.8.
During cross examination, questions were posed to the Applicant’s
witnesses concerning
the cause and nature of certain defects,
including those that were allegedly caused by water seeping beneath
the covering in the
tint room.
4.9.
These questions enlarged the issues and disputes initially presented
in the plea, which primarily
focused on the presence or absence of
the defects requiring repair. In my opinion as well as that of
counsel for the Applicant,
this broadened the scope of the dispute
and necessitated the introduction of expert evidence.
4.10.
The reason for the Applicant’s failure to file an Expert Notice
and Report in accordance with Rule
24(9)(a) and (b), that is, prior
to the commencement of the trial, was primarily related to the
defences raised in the Respondent’s
Plea which the applicant
needed to address and prepare for adequately.’
[6]
In response, Impa’s case is, first, that Mdogo’ case
for
the repair work was a claim for damages and as such it was not
liquidated. Secondly, that the nature and extent of the defects
was
also in issue. Impa contends that in the context of pleadings, the
distinction between damages caused and fair wear and tear
was a
matter that fell within the purview of expert witnesses. For this
reason, Impa contends that this issue of damages was not
a new issue
as submitted by Mdogo. According to Impa, Mdogo bore the onus to
prove its damages in order to succeed with its claim
in the
proceedings before the court a quo.
[7]
It is also the case of Impa that should condonation be granted, it
will be prejudiced. It bases its contention on the fact that, on the
version of Mdogo, the defects that form the foundation of
its claim
have since been repaired. Impa contends that if the repairs have been
effected, it would not have the benefit of appointing
its own experts
to examine the alleged defects in their original state. Further, Impa
submits that Mdogo has not disclosed whether
a new tenant now
occupies the premises which factor might have a bearing on further
developments and on the condition of the property
following its
eviction by Impa.
[8]
Impa further holds the view that the expert summary does not comply
with the substantive requirements of rule 24(9)
(b)
. It
contends that the report does not state whether the expert sought to
be called actually conducted an inspection or when such
took place.
It is also attacked on the basis that it lacks a foundation in
technical principles or specialised knowledge beyond
the common
understanding of the court and lay persons. Impa in essence contends
that the expert summary does not contain sufficient
data, facts or
methodology on which Mr Lubbe’s opinion is based in order for
Impa to accurately make its own assessment.
[9]
The challenge against the notice and summary also centres around
the
fact that, according to Impa, Mdogo impermissibly seeks to introduce
or supplement its evidence through the expert evidence.
[10]
The court a quo indicated that during the pre-trial conference, it
was specifically stated
that the damages and failure by Mdogo to
maintain the lease premises were in dispute. The court a quo also
noted that counsel for
Mdogo also conceded that he overlooked to file
an assessment of damages which the court needed for appropriate
adjudication. The
court a quo held that Mdogo knew that its claim had
always been for damages. The court a quo further held that should
condonation
be granted, Impa would be prejudiced.
[11]
The central
issue for determination is whether Mdogo has made out a case for
condonation for the late delivery of the notice and
summary of its
expert witness. In order for an applicant to succeed with this kind
of an application, such an applicant must show
good or sufficient
cause for the relief sought. The onus is on such applicant to prove
good cause and not merely to allege it.
[1]
Condonation is not there for the asking. In
Grootboom
v National Prosecuting Authority and Another
,
[2]
the court said:
‘
A party seeking
condonation must make out a case entitling it to the court’s
indulgence. It must show sufficient cause. This
requires a party to
give a full explanation for the non-compliance with the rules or
court’s direction. Of great significance,
the explanation must
be reasonable enough to excuse the default.’
[12]
The courts
have over time identified the necessary factors relevant to this
inquiry which include: the degree of non-compliance,
the explanation
of delay, the prospect of success, the importance of the case, the
nature of the relief sought, the other parties’
interest in
finality, the convenience of the court.
[3]
The court will further also consider the question of prejudice to
either of the parties which may not be compensated for by a suitable
order of costs.
[13]
On the assessment of an indulgence, one has to look at the
explanation proffered by Mdogo.
The starting point should be rules
24(9)
(a)
and
(b)
, which provide as follows:
‘
No person shall,
save with the leave of the court or the consent of all parties to the
suit, be entitled to call as a witness any
person to give evidence as
an expert upon any matter which the evidence of expert witness may be
received, unless-
i.
where the plaintiff intends to
call an expert, the plaintiff shall
not more than 15 days after the close of pleadings or where the
defendant intends to call the
expert
s
, the defendant
shall not more than 30 days after that close of pleadings, have
delivered notice of intention to call such expert;
ii.
in the case of the plaintiff, not more than
45 days after the close
of pleadings, or in the case of the defendant not more than 60 days
after the close of pleadings, such
plaintiff or defendant shall have
delivered a summary of the expert’s opinions and the reasons
therefore.’
[14]
It is common cause that the plaintiff did not deliver the notice and
expert summary after
closure of pleadings. Such a notice and summary
were only delivered after three of Mdogo’s witnesses had
testified. It is
the case of Mdogo that the dispute concerning
repairs centred on whether the defects that needed to be repaired
were present or
absent. This was not correct as conceded by counsel
for Mdogo. The court a quo found that Mdogo was not bona fide in its
application.
I agree with the sentiments expressed by the court a
quo. The pre-trial minute filed sets out the issues in dispute, inter
alia,
as follows:
‘
Whether or not the
repairs were necessary due to damages and / or failure by the
defendant to maintain the leased premises, alternatively
whether it
constitutes fair wear and tear.’
[15]
In its particulars of claim Mdogo alleges
as follows:
‘
In the event that
the defendant fails to maintain the lease premises in a good order as
contemplated in clause 12 of the lease agreement
then the plaintiff
will be entitled to have necessary repairs effected in order to
restore the lease premises to the condition
as at the commencement
date. The defendant will be liable upon demand to pay the plaintiff
the amount of expenses so incurred.’
[16]
In response Impa pleaded, inter alia, as
follows:
‘
It
is…, specifically pleaded that fair wear and tear is obviously
expected.’
A plea of this nature
should have alerted Mdogo that proof that the damages claimed were
not caused by fair wear and tear, was indispensable
in order to
sustain its action. This would surely necessitate the leading of
evidence in order to contradict the assertion of fair
wear and tear.
That should have prompted it to file the necessary notices. There was
no reason to wait until three witnesses were
called and be confronted
with the version of Impa to which they could not respond because of
lack of expertise.
[17]
It therefore cannot be correct that Impa
expanded the points of dispute during cross examination. The issue of
damages and fair
wear and tear was crystallised in the pleadings and
also in the pre-trial conference. Mdogo was legally represented
during the
proceedings. Had the cross- examination strayed and went
beyond the pleadings, one would have expected counsel for Mdogo to
object
to that kind of cross examination. That did not happen.
[18]
In my view
it was only during cross examination that reality set in for Mdogo,
that expert evidence was necessary in order to sustain
its claim. In
an attempt to amplify its case, Mdogo then issued a notice as well as
a summary of its expert. In trying to have
the notice and summary
accepted by the court a quo, its legal representative somewhat
shifted the blame to himself as indicated
in paragraph 5 above about
what he ‘believed’ and not what the pleadings aver was
the point of dispute. He conceded
before the court a quo that he
mischaracterised the point of dispute. But that cannot be used to
disadvantage Impa. Condonation
cannot be granted on this basis. To
conclude on this aspect, I refer to the case of
Superb
Meat Supplies CC v Maritz
,
[4]
where the court said the following:
‘
It has never been
the law that invariably a litigant will be excused if the blame lies
with the attorney. To hold otherwise it would
have a disastrous
effect on the observance of the rules of this court and set a
dangerous precedent. It would invite or encourage
laxity on the part
of the practitioners.’
[19]
When it comes to the question of prejudice, it seems to me that Mdogo
downplays the prejudice
Impa would suffer should condonation be
granted. The alleged defects have already been corrected. The surface
forming the subject
of dispute is no longer in its original form. The
question then arises as to how Mdogo expects Impa’s experts are
to investigate
and report on surfaces which are no longer in their
original state. That would clearly put Impa on the back foot. I hold
the view
that the prejudice warrants refusal for condonation. It is
in my view unnecessary to decide the issue of whether the intended
summary
of the expert of Mdogo complied with the rules as the stance
I take above, makes it unnecessary to decide the prospects of
success.
Conclusion
[20]
For the reasons stated above, I conclude
that the appeal must fail. There is no reason why Impa should not be
entitled to its costs
on resisting the appeal.
Order
[21]
In the result, I make the following order:
1
The appeal is dismissed with costs, which include the costs of
counsel on scale B.
________________________
P E MOLITSOANE
JUDGE OF THE HIGH
COURT
I
agree
________________________
S
NAIDOO
JUDGE OF THE HIGH
COURT
Appearances:
For appellant:
P J J Zietsman
Instructed by:
Muller Gonsior
Attorneys,
Bloemfontein
For
respondents
W
A Van Aswegen
Instructed
by:
Kramer
Weihman Inc.,
Bloemfontein.
[1]
Silber
v Ozen Wholesalers (Pty) Ltd
1954
(2) SA 345
(A) 353G-353H.
[2]
Grootboom
v National Prosecuting Authority and Another
[2013]
ZACC 37
;
2014
(2) SA 68
(CC);
[2014]
1 BLLR 1
(CC)
(2014)
35 ILJ 121 (CC)
para
23.
[3]
Ibid
para 22.
[4]
Superb
Meat Supplies CC v Maritz
2004
25 ILJ 96 (LAC) para 16.