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
LIMPOPO DIVISION, POLOKWANE
CASE NO: 2605/2024
In the matter between:
FREDERICK GRANGER FIRST APPLICANT
CATHARINA MARIA GRANGER SECOND APPLICANT
And
PAUL JN STEYN FIRST RESPONDENT
TRUDIE GM STEYN SECOND RESPONDENT
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO OTHER JUDGES: YES/NO
(3) REVISED: YES/NO
18/05/2026 ___________________
Date Signature
DELIVERED: 18 MAY 2026
This judgment was handed down electronically by circulation to the parties’
legal representatives by e-mail. The date and time for hand down of the
judgment is deemed to be 18 MAY 2026 at 16:00.
Date heard: 13 MAY 2026
Coram: NGOBENI J
_______________________________________________________________
JUDGMENT
_______________________________________________________________
NGOBENI J
[1] This is an application for the setting aside of the respondents’ Combined
Summons and Particulars of Claim filed under th is case number, being
2605/2024 as an irregular step. The applicants also seek condonation in
terms of Rule 27(1) for the late filing of this application. The application is
opposed by the respondents.
[2] The factual backgroun d of this case must be outlined for this application
to be understood. The applicants and the respondents entered into a
written agreement for the sale of an immovable property by the
respondents to the applicants on 21 January 2022 for an amount of
R1 200 000-00 (One million two hundred thousand rand). The address of
the said property is Erf 1[...], S[...] Close, Extension 5, Leeupoort,
Vakansiedorp, Limpopo (property).
[3] The property is held under deed of transfer number T[...]. The building
plan that was provided to the applicants is not approved by the necessary
authority and the house was not built according to the specification of the
plan. Upon taking occupation of the property, the applicants allege that
they discovered latent defects on that property which the respondents did
not tell them about. The applicants also allege that had they known about
those defects they would not have bought the property, because the
house is actually not good for habitation.
[4] The applicants as a result of the alleged latent defects on the property ,
issued summons under case number 923/2023 from this court against the
respondents with the date of issue reflected on the date stamp of the
registrar clerk as 06 February 2023, for the refund of the purchase price
and for the property to be returned to the respondents. The respondents
filed a plea with the registrar clerk on 17 May 2023. The oral submissions
in court by the applicants is that the respondents after filing a plea, asked
for consent or permission from the applicants to file a counterclaim, which
request was refused by the applicants.
[5] The respondents then issued summons which were allocated this case
number under which this application is being made, being 2605/2024,
and raised the issuing of summons under this case number as an
irregular step, and the view of the applicants is that when they refused to
give the respondents consent to file their counter-claim, they should have
brought an application before court for such leave to be granted if the
court would have so found. That is what brought about this application, in
which the applicants apply to the court to declare the summons issued by
the respondents to be an irregular step in terms of rule 30(2)(b).
[6] In issue between the parties is indeed whether the issuing of summons
against the applicants is an irregular step, or a right which any litigant is
at liberty to pursue. The applicants filed this application four days late
and their submission is that they were granting the respondents an
opportunity to remove the cause of complaint, which they did not
remove. The court ther efore has to first decide as to whether the court
can condone the late filing of this application or not. It remains significant
in this case that the applicants must show the court good cause as to why
was the application filed out of time , and the court must also consider
prejudice that might be suffered by the respondents if such condonation
is granted.
[7] Rule 27 deals with the Extension of Time and Removal of Bar and
Condonation. Rule 27(1) reads as follows:
27 Extension of Time and Removal of Bar and Condonation
“(1) In 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 these Rules or
by an order of court or fixed by an order extending or abridging any
time for doing any act or taking any step -in connection with any
proceedings of any nature whatsoever upon such terms as to it
seems meet”.
[8] The good cause to be shown entails the following requirements: first, that
the applicant’s affidavit should provide a full explanation of the default so
that the court may assess the explanation. Secondly, the court should be
satisfied from the affidavit that the applicant has a bona fide defence.
Thirdly, that the grant of the indulgence would be compensated by an
order of cost, or alternatively that the granting of the indulgence will not
prejudice the opposing party1.
1 Showrooom Centre (PTY) LTD & Others and Ronald Kagan (54023/2021) [2024] ZAGPJHC 101 (8 February2024);
Colyn v Tiger Food Industries Limited t/a Meadow Feed Mills (Cape) 2003 (2) ALL SA 113 (SCA), Du Plooy v Anwes
Motors (EDMS) Bpk 1983 (4) SA 212 304 (C) at 217H, Dalhouzie v Bruwer 1970 (4) SA 566 (C) at 572A.
[9] The Constitutional Court (CC) gave guidance on what the courts have to
consider when dealing with condonation applications. In the cases of
Grootboom v National Prosecuting Authority and Another 2 and Brummer
v Gorfil Brothers Investments (Pty) Ltd 3, the court held that if it is in the
interests of justice that condonation be granted, it will be granted. If it is
not in the interests of justice to do so, it will not be granted. The court
went further to say that the interests of justice must be determined by
reference to all the relevant factors, including the nature of the relief
sought, the extent and cause of the delay, the nature and cause of any
other defect in respect of which condonation is sought, the effect on the
administration of justice, prejudice and the reasonableness of the
applicant’s explanation for the delay or defect.
[10] Cases are brought before the courts because the litigants want issues to
be resolved. It is also desirable that litigation is not protracted
unnecessarily because that is costly for the litigants. It is not only costly
financially, but emotionally as well because of not being certain of the
outcome until the court pronounces. I have not been shown actual
prejudice that the respondents may suffer if the court allows that this
matter be proceeded with. In the result I find that the interests of justice
do permit that this matter be dealt with so that we can move towards
finality, and in the result condonation for the late filing of this application
2 (2014) 1 BLLR 1 (CC).
3 2000 (5) BCLR 465 (CC).
is granted . I see no reason why the applicants should be mulcted with
costs, as I found their explanation to be reasonable and no prejudice was
suffered by the respondents because of the four-day lateness period.
[11] I now turn to the complaint that has been raised by the applicants which
is based on provisions of Rule 24 which reads as follows:
24 Claim in Reconvention
“(1) A defendant who counterclaims shall, together with his plea, deliver
a claim in reconvention setting out the material facts the reof in
accordance with rules 18 and 20 unless the plaintiff agrees, or if he
refuses, the court allows it to be delivered at a later stage. The
claim in reconvention shall be set out either in a separate document
or in a portion of the document containing the plea, but headed
‘Claim in Reconvention’. It shall be unnecessary to repeat therein
the names or descriptions of the parties the proceedings in
convention.
(2) If the defendant is entitled to take action against any other person
and the plaintiff, whether jointly, jointly and severally, separately or
in the alternative, he may with leave of the court proceed in such
action by way of a claim in reconvention against the plaintiff and
such other persons, in such manner and on such terms as the court
may direct.
(3) A defendant who has been given leave to counterclaim as aforesaid,
shall add to the title of his plea a further title corresponding with
what would be the title corresponding with what would be the title
of any action instituted against the parties against whom he makes
claim in reconvention, and all further pleadings in the action shall
bear such title, subject to the proviso to subrule (2) of Rule 18.
(4) A defendant may counterclaim conditionally upon the claim or
defence in convention failing.
(5) If the defendant fails to comply with any of the provisions of this
rule, the claim in reconvention shall be deemed to be an irregular
step and the other party shall be entitled to act in accordance with
rule 30”.
[12] The applicants did not grant consent to the respondents to file their
counterclaim out of time. It is common cause that the respondents did
not approach the court to apply for such leave. It is so that upon reading
the provisions of rule 24 (2) the respondents may have approached the
court for such leave, but they chose not to. They instead instituted action
against the applicants , as they allege, on the same issues as in the
summons of the applicants. The summons issued by the respondents in
this case are not attached, and as a result I am unable to comment
whether the issues and the parties are the same or not.
[13] Whether the summons of the respondents is attached to this application
or not, mine is to decide whether it is an irregular step to issue that
summons. Van Loggerenburg, in Erasmus Superior Court Practice,
Volume 2, second edition, opines as follows on rule 24(2) , that the
defendant would be entitled to take action against those mentioned in the
rule if:
“(a) he is eligible in law to institute action against the persons
contemplated in the rule; and
(b) they are eligible in law to be sued”
[14] Mbenenge JP, in Mzontsundu Trading (Pty) Ltd and Another v
Lavelikhwezi Investments (Pty) Ltd and Another 4, found that nothing
prevents the respondents from pursuing a claim against the applicants in
a separate action where the respondents delivered a notice to amend a
counter-claim in an action that had been determined. Mbenenge JP relied
on the judgment of the Supreme Court of Appeal in Soil Fumigation
Services Lowveld CC v Chemfit Technical Products (Pty) Ltd 5, where on
paragraph 11 the court said the following:
“[11] … Even where summary judgment has been granted for that part of
the claim that would be extinguished by the counter -claim, the defendant
can still pursue the counter -claim by issuing summons in a separate
action”
4 (3996/19) [2021] ZAECMHC 44 (7 December 2021).
5 2004 (6) SA 29 (SCA).
[15] In the case at hand the respondents instituted a new action under a
different case number from which they were initially sued. This
application was brought under that new case number which the
intervention of this court is sought. I have already referred to case law
that shows that it is permissible to pursue an action in another case even
though other issues might have been decided in another case. I therefore
find that the respondents are not precluded to pursue a case even though
other issues in t hat case might have been pursued in another case. I
believe that under the circumstances the applicants will then follow the
normal pleadings procedures and raise whatever issues that they have
with the proceedings or action which the respondents initiated in their
pleadings.
[16] It is of course desirable that issues involved in one case be determined
holistically without duplication in order to save costs and the risk of
multiple judgments which might even differ for the same issues, but in
different cases. I therefore find that the respondents cannot be prevented
from pursuing an action, even though the action might be arising from
the same issues as in the case that was initially pursued by the
applicants. The applicants cannot be said to be frivolous in bringing this
application, because their cause for concern has merit in it. I have
already said that one of the reasons why it is desirable that issues
involved in the same case be decided together , is to save costs. The road
is still long for the litigants in this case as I project. It is for that reason
that I will in this application order that each party bear its own costs.
[17] In the result the following order is made:
(i) the application in terms of rule 30(2)(b) is dismissed,
(ii) each party to bear its own costs.
____________________________
J.T. NGOBENI
Judge of the High Court
APPEARANCES
For the applicants: Adv. Mashudu Shiburi
Instructed by: JV Rensburg Kinsella Inc Attorneys
For the respondents: Adv. F. Van Vyk
Instructed by: AB Lowe Attorneys
Date of hearing: 13 May 2026
Date of judgment: 18 May 2026