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IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)
DELETE WHICHEVER IS NOT APPLICABLE
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO OTHER JUDGES: YES/NO
(3) REVISED
DATE: 18 June 2026
SIGNATURE:
Case No. 91805/2016
In the matter between:
DE WET, KF N.O.
First Applicant
BURNS, TA
Second Applicant
COETZEE, C
Third Applicant
And
DIGICORE FLEET MANAGEMENT SA (PTY)
Respondent
LTD T/A C TRACK FLEET MANAGEMENT
In re:
DIGICORE FLEET MANAGEMENT SA (PTY)
LTD T/A C TRACK FLEET MANAGEMENT
APPLICANT
And
DE WET, KF N.O.
FIRST RESPONDENT
BURNS, TA
SECOND RESPONDENT
COETZEE, C
THIRD RESPONDENT
Coram: Millar J
Heard on: 8 June 2026
Delivered: 18 June 2026 - This judgment was handed down electronically by
circulation to the parties' representatives by email, by being
uploaded to the CaseLines system of the GD and by release to
SAFLII. The date and time for hand-down is deemed to be 12H00
on 18 June 2026.
JUDGMENT
MILLAR J
[1] This is an application for leave to amend a plea. The amendment, which is the
subject matter of this application, relates only to the second applicant (who is
the second defendant in the main action), Ms. Burns. In respect of the first and
third applicants, the late Mr. Burns and Ms Coetzee, the amendment to
introduce the special plea was abandoned before the hearing. For
convenience, I will refer to the applicants as the late Mr. Burns, Ms. Burns and
Ms Coetzee respectively – where I refer to all 3, I will refer to them either as the
applicants or the defendants. I will refer to the respondent, the plaintiff in the
main action, as Digicore.
[2] The factual matrix in this matter is uncontentious.
[3] On 24 November 2016, Digicore issued Summons against the late Mr. Burns,
Ms. Burns and Ms. Coetzee in the main action. When the Summons was
initially issued, the late Mr. Burns was cited as having his domicilium citandi et
executandi at 1[...] L[...] Road Ferryvale in Nigel, Gauteng. Ms. Burns was cited
as having that address as her employment address as was Ms. Coetzee.
Neither were cited with this address as their domicilium citandi et executandi.
[4] The sheriff duly served the Summons on the late Mr. Burns at the domicilium
address on 25 November 2016. When serving the Summons at this address,
the sheriff was informed by the occupier of the premises (a certain Ms. van
Rooyen), that none of the defendants were known at that address. Accordingly,
while service was effected on the late Mr. Burns at that address because he
had chosen it as his domicilium address, it was not served in respect of either
Ms Burns or Ms. Coetzee.
[5] This prompted Digicore on 30 November 2016, to amend its Summons to add
as a further domicilium citandi et executandi for both the late Mr. Burns and Ms.
Coetzee at 7[...] H[...] V[...] Street, Aloe Arcade, Nigel Gauteng. This address
was also cited as the employment address of Ms. Burns.
[6] On 1 December 2016, the sheriff effected service on Ms. Coetzee personally at
the address referred to in paragraph [5] above. She also received service on
behalf of the late Mr. Burns and undertook to hand a copy of the Summons to
him. In respect of Ms. Burns, Ms Coetzee informed the sheriff that she was “no
longer employed at given address.”
[7] Accordingly, the factual position as of 1 December 2016, was that Summons
had been served by the sheriff on the late Mr. Burns at 2 addresses reflected as
being domicilia citandi et executandi and personal service had been effected on
Ms. Coetzee. No service was effected on Ms. Burns.
[8] While the Summons was with the sheriff for service on 1 December 2016, all
three defendants had in the meantime on 30 November 2016 delivered a notice
of intention to defend the action. The notice of intention to defend is clear and
unequivocal insofar as it was entered on behalf of all 3 defendants and was
served on Digicore’s attorneys.
[9] Thereafter, in the absence of the timeous filing of a plea, on 22 February 2017,
a notice of bar was served on the defendants. The notice of bar resulted in the
delivery of a plea on 8 March 2017. This plea, like the notice of intention to
defend, was clear and unequivocal in its representation that it was filed on
behalf of all 3 defendants.
[10] Pleadings thereafter closed and the matter advanced to trial. The action was
set down for trial on 26 August 2024. On 14 August 2024, the defendants gave
notice of their intention to amend their plea and because of the timing with
which the application had been brought, together with the contents of the
application, the action was removed from the roll.
[11] It has taken a further almost 2 years for this application (which was opposed
from the very beginning) to wind its way to court.
[12] The action was instituted pursuant to what were alleged to be breaches of
various contracts which occurred between 17 December 2013 and 15 July
2014. It is accepted, having regard to the provisions of the Prescription Act,1 to
interrupt the running of prescription, it was necessary for Digicore to ensure that
Summons was served on the defendants at the earliest by 16 December 2016
or at the latest, 14 July 2017.
[13] The actual service that was effected is set out above. It is not in issue between
the parties that notwithstanding the failure on the part of Digicore to serve on
Ms. Burns, the Summons was brought to her attention, she was aware of the
nature of the claim, she instructed attorneys to defend the action and
subsequently, filed a plea.
[14] The application to amend before this Court, seeks to withdraw the admission
made by Ms. Burns in the plea. The amendments as set out in the notice of
intention to amend dated 14 August 2024, provided for the “deletion of the plea in
its entirety” and then the substitution of a new plea which then included special
pleas in respect of each of the defendants.
[15] The first special plea in respect of each of the defendants, seeks to place in
issue whether service was ever effected on them. Regarding Ms. Burns, the
first special plea which is sought to be introduced together with the withdrawal
of the admission, is that Summons was never served on her and for that reason
did not “constitute an effective formal institution of the action against her.”
1 68 of 1969.
[16] The effect of this special plea together with the withdrawal of the admissions
made, if allowed on amendment, would be to non-suit Digicore against Ms.
Burns.
[17] It is trite that whether an application for amendment is to be permitted, is a
matter which is within the discretion of the Court. The general rule is that
amendments are to be allowed unless the application has been made for some
ulterior purpose or would, if allowed, cause an injustice to the other party which
cannot be compensated by costs.2 It must also be considered whether injustice
or prejudice (which allowing the amendment may occasion, besides being cured
by a costs order) would also put the other party back in the position they were in
when the pleading was delivered.3
[18] Furthermore, even if an amendment seeks to introduce a fundamental defence
such as lack of jurisdiction or as in the present case, lack of service by the
sheriff, subsequent conduct may well be regarded as acquiescence and for that
reason also, the amendment could be refused.4
[19] Turning now to the present matter. The plea was served on 8 March 2017, and
it was only for the first time after all the preparations for trial set down for 24
August 2024, had been undertaken and costs relating thereto incurred, some 10
days before the hearing, that the defendants sought to amend their plea. This
was just short of 7 years after the plea was first delivered.
2 Moolman v Estate Moolman 1927 CPD 27.
3 Amod v South African Mutual Fire and General Insurance Co Ltd 1971 (2) SA 611 (N).
4 Zwelibanzi Utilities (Pty) Ltd v TP Electrical Contractors CC 2011 JDR 0249 (SCA) at para [9] quoting
with approval Lubbe v Bosman 1948 (3) SA 909 (O) where it was held that “where a defendant without
having excepted to the jurisdiction, joins issue with the plaintiff in a Court which has material
jurisdiction, but has no jurisdiction over defendant because he resides outside the jurisdiction of that
Court, the defendant is deemed to have waived his objection and so as it were conferred jurisdiction
upon the Court.”
[20] It is not in issue that at the time that the appearance to defend the action was
entered as well as when the plea was filed, that Ms. Burns knew that the sheriff
had not served process upon her personally or at an address where she either
resided or worked. The explanation provided by the late Mr. Burns on oath for
this and confirmed by Ms. Burns was that:
“At the time that the Summons was served on me, I had vacated the property at
1[...] L[...] Road, Ferryvale, Nigel and had moved my residence to 9[...] I[...]
Road, Ferryvale, Nigel and my business was located at 7[...] H[...] V[...] Street,
Aloe Arcade, Nigel.
My move from 1[...] L[...] Road, Ferryvale, Nigel had taken place approximately 4
years prior to the date of service of the summons.
The Summons was served on me by leaving a copy with Santie Van Rooyen, at
my erstwhile address where she now lives, 1[...] L[...] Road, Ferryvale, Nigel.
Mrs Van Rooyen in turn contacted me and arranged for me to collect the
Summons.
I acknowledge that contents of paragraph 2 of the Particulars of Claim were
admitted in the extant Plea. I mistakenly thought at the time that they served the
Summons on that address as it was the address I used when the initial
negotiations began with the Plaintiff and my instructions may have been
miscommunicated.
The Plea was prepared in haste under Notice of Bar by a junior counsel who was
instructed by my attorney at the time. I can only assume that due to the
stringencies of time that prevailed, the miscommunication occurred in respect of
the correctness or otherwise of the contents of paragraph 2 of the Particulars of
Claim.
. . .
. . .
The Summons was served on the second defendant by leaving a copy with the
successor in occupancy at 1[...] L[...] Road, Santie Van Rooyen and she in turn
arranged for the delivery of the Summons to me, which I delivered to the second
defendant.
The Third Defendant had never resided at 1[...] L[...] Road, Ferryvale, Nigel, she
was employed by me at 7[...] H[...] V[...] Street, Aloe Arcade, Nigel at the time
when Summons was served on Santie Van Rooyen. . . and she received the
Summons in the same way that the Second Defendant and I received the
Summons by Santie Van Rooyen.”
[21] The explanation provided sets out clearly and unequivocally that the Summons
was furnished to Ms. Burns and Ms. Coetzee after it had been given to the late
Mr. Burns by Ms. van Rooyen. For purposes of the present application, it is
accepted that this is the way in which the Summons came to the attention of
Ms. Burns. The fact that the notice of intention to defend in respect of all 3 of
the defendants was served on 30 November 2016, the day before the sheriff
effected personal service on Ms. Coetzee is corroborative of this.
[22] The explanation for the delay, however, does not address at all, the period
between 1 December 2016 and 22 February 2017 when the notice of bar was
delivered. This is a period of almost 3 full months during which the defendant’s
attorneys of record were in possession of the Summons.
[23] Furthermore, the reference to junior counsel having been briefed to prepare the
plea after receipt of the notice of bar, is somewhat cryptic. There is no
explanation given as to the scope of the brief and whether it included
instructions to raise a special plea of non-service. It seems to me as a matter of
common sense that had the instruction been given by Ms. Burns to her attorney
that he would have conveyed this to counsel when the plea was settled. The
absence of any confirmation by either the attorney or the counsel in this regard
is indicative of the fact that no such instruction was ever given to counsel.
[24] The 7-year period from the filing of the plea until 10 days before the trial is
similarly unexplained. Had Ms. Burn’s attorney been instructed to raise the
special plea of non-service at any stage beforehand, it is likely that an
explanation would have been proffered. In the application before me, there is
simply no explanation.5
[25] It seems to me, properly construed that the amendment to introduce the special
plea and the significance of the non-service upon which it is predicated, was
only considered shortly before the trial. It does not detract from the fact that the
circumstances relating to the service of the Summons were not contentious, at
least as between the defendants and their attorney, and were known at least
from 30 November 2016.
[26] A costs order cannot cure the prejudice to Digicore if this amendment is
permitted. It received the appearance to defend from all three defendants
which included Ms. Burns. It relied upon that appearance to defend as being
reflective of the fact that Ms. Burns knew that it sought to enforce its claims
against her.
5 GMF Kontrakteurs (Edms) Bpk v Pretoria City Council 1978 (2) SA 219 (T) . See also South British
Insurance Co Ltd v Glisson 1963 (1) SA 289 (D).
[27] The purpose of service is to bring the process that has been issued to the
attention of the debtor. This occurred here.6 Digicore relied on the appearance
to defend. It knew from the returns of service that it had not received personal
service on Ms Burns and that the addresses that it had, did not represent her
work or home address. Had it not received the appearance to defend, it would
have been able to take steps to secure service, in the first instance and in
respect of the first claim by no later than 16 December 2016 and in respect of
the last claim by 14 July 2017.
[28] The delivery in combination of the notice of intention to defend together with the
plea as well as the effluxion of time means that the withdrawal of the admission
would result in irreparable prejudice to Digicore.7
[29] The failure at all by Ms Burns, to take the Court into her confidence with regards
to the various periods of delay, spanning some 7 years, is to be deprecated.
The application to amend, considered in this context, it was argued for Digicore,
was made mala fide. I agree. The main action was at the proverbial “doors of
the Court” when the application was brought, and it is now some 9 years later,
and the matter is no closer to resolution.
[30] For the reasons set out above, I intend to dismiss the application. The costs will
follow the result, with costs of counsel on scale C.
[31] In the circumstances, I make the following order:
6 Investec Property Fund Ltd v Viker X (Pty) Ltd (2016/07492) [2016] ZAGPJHC 108 (10 May 2016) at
paras [7] – [19] and Obiang v Janse van Rensburg (714/2023) [2025] ZASCA 30 (31 March 2025) at
para [28] and following.
7 Heafield v Rodel Financial Services (Pty) Ltd (11680/2012) [2022] ZAKZDHC 26 (15 June 2022) at
para [32], referring to South British Insurance Co Ltd v Glisson 1963 (1) SA 289 (D) where it was
stated: “Where, because of an admission in a plea, a party had not used rights that he had at the time
when the pleadings were originally filed and the rights had since lapsed, then an amendment
withdrawing the admission will not be allowed.”
[31.1] The application for leave to amend is dismissed.
[32.2] The first and third applicants are ordered to pay the respondent’s
wasted costs on scale C for the abandonment by them of the
proposed first special plea which costs exclude the costs relating to
the hearing on 8 June 2026.
[33.3] The second applicant is ordered to pay the respondent’s costs of the
application on the scale as between party and party which costs are
to include the cost of counsel on scale C.
_____________________________
A MILLAR
JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
HEARD ON: 08 JUNE 2026
JUDGMENT DELIVERED ON: 18 JUNE 2026
COUNSEL FOR THE APPLICANTS: ADV. GV MEIJERS
INSTRUCTED BY: RACCANELLO ATTORNEYS
REFERENCE: N THOMPSON
COUNSEL FOR THE RESPONDENT: ADV. R RAUBENHEIMER
INSTRUCTED BY: KLAGSBRUN EDELSTEIN BOSMAN
DU PLESSIS INC.
REFERENCE: R NYAMA