SAFLII Note: Certain personal/privat e 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
(WESTERN CAPE DIVISION, CAPE TOWN)
JUDGMENT
Reportable
Case no: 2025-052719
In the matter between:
TERESA KLEIN Applicant
and
MARK NEWTON Respondent
In re: the matter between
MARK NEWTON Plaintiff
and
TERESA KLEIN Defendant
Neutral citation: Klein v Newton; Newton v Van Zyl (Case no
052719/2025) [2026] ZAWCHC (22 June 2026)
Coram: LOUW AJ
Heard: 12 May 2026
Delivered: Electronically on 22 June 2026
Summary: Rule 30 application concerns the setting aside of alleged
irregular steps taken by the respondent, with the applicant also seeking
condonation for non -compliance with Rule 30(2) – Improper service of the
summons and inadequate particulars of claim – Service of summons was
irregular, as it was affixed to a property where the applicant neither resided
nor worked, contrary to the rules applicable to natural persons, and was also
emailed without authority solely to avoid prescription – The non-compliance
was not condoned , and the defective service and cause of action were set
aside as irregular steps.
ORDER
1. Condoning the late filing of this application.
2. That the Respondent’s/Plaintiff’s action application (the summons
and particulars of claim) be set aside in its entirety as an irregular
step in terms of Rule 30.
3. No cost order is made with each party to carry their own costs.
JUDGMENT
Louw AJ:
Introduction
[1] The applicant, Ms Teresa Klein, filed an application in terms of Rule
30 of the Uniform Rules for the setting aside of an irregular step taken
by the respondent, Mr Mark Newton, in action proceedings pending
before court, which is opposed (main proceedings). Furthermore, Ms
Klein did not strictly comply with the time periods prescribed in Rule
30(2)1 and accordingly seeks the court’s indulgence to condone her
non-compliance.
[2] The main matter before this Court concerns action proceedings for the
recovery of a debt allegedly owed by Ms Klein to Mr Newton, arising
from monies advanced under a verbal credit agreement concluded
1 Rule 30(2) provides that an application to set aside an irregular step may be brought where:
a) the applicant has not himself or herself taken a further step in the cause with knowledge of the
irregularity;
b) the applicant has, within 10 days of becoming aware of the step, by written notice afforded his or
her opponent an opportunity of removing the cause of complaint within 10 days;
c) the application is delivered within 15 days after the expiry of the second period mentioned in
paragraph (b) of sub-rule (2).
several years ago, with advances dating back to 2018, and repayable
on demand. Mr Newton sent a formal and written demand for the
repayment of all monies loaned to Ms Klein on 13 March 2025, and
accordingly issue d the summons on 16 April 2025. For ease of
reference and to simplify the discussion, the parties will be referred to
throughout as Mr Newton (or the creditor ) and Ms Klein (or the
debtor).
[3] This application arises from two alleged fundamental procedural
defects in the action proceedings instituted by Mr Newton against Ms
Klein. The first pertains to the service of the summons, and the second
to the adequacy of the pleadings.
[4] As regards the first defect, it is contended that the summons was
improperly served. The return of service reflects that, on 16 April
2025, the summons was affixed to the gate of immovable property
that was neither Ms Klein’s residence nor her chosen domicilium
citandi et executandi . In doing so, Mr Newton ’s attorneys appear to
have relied on Rule 4(1)(a)(v) applicable only to juristic persons. This
was followed by an attempt to transmit the summons by email to Ms
Klein’s attorney, notwithstanding the absence of any authority
permitting service in that manner.
[5] The second defect relates to the particulars of claim, which are alleged
to be non-compliant with Rule 18(4). Mr Newton relies on an alleged
long-running verbal agreement, but fails to plead its essential terms or
sufficient factual detail. No repayment timeframe is alleged, and
although a breach is claimed, the particulars do not show how Ms
Klein was placed in mora. It is consequently contended that the cause
of action is inadequately formulated, rendering the particulars vague
and embarrassing, and preventing Ms Klein from reasonably pleading
thereto or properly defining the issues in dispute. Mr Newton opposes
the application before this Court , contending that no procedural
defects arise in respect of either the service of the summons or the
formulation of his claim, and seeks its dismissal.
[6] Furthermore, Ms Klein did not strictly comply with the time periods
prescribed in Rule 30(2) and also seeks th is C ourt to accept her
explanation for non-compliance with the set periods prescribed.
Factual background
[7] Mr Newton and Ms Klein concluded a verbal credit agreement during
2018 spanning over several years in terms of which Mr Newton would
dispense monies to Ms Klein at different times and in different
amounts. The amounts due were apparently payable on demand. The
nature of the relationship between the parties was not clarified to the
court, but it is common cause between the parties that the National
Credit Act2 did not apply to the loan agreement.
[8] On 13 March 2025, Mr Newton, through his attorneys, Frank Holland
& Associates, demanded repayment from Ms Klein of the full loan
amount of R664 654.00, together with interest thereon at the
prescribed legal rate, with effect from 11 April 2022 , the latter date
2 Act 34 of 2005.
being the date upon which Mr Newton first called for the repayment
of the loan made to Ms Klein. The formal letter of demand in
paragraph 2 thereof states that Ms Klein confirmed and admitted to
her liability on 14 April 2022. However, the date differs from that in
the particulars of claim in the action proceedings where it is stated in
paragraph 5 that Ms Klein acknowledged the liability on 19 April
2022. Reference is also made to an email sent by Ms Klein on or
about 19 April 2022, in which she acknowledges her indebtedness to
Mr Newton (“acknowledgement of debt”). 3 There are thus two
different dates on which the alleged acknowledgement of debt was
made, and it is not common cause between the parties that the email
message constitutes such an acknowledgement. However, nothing
turns on these aspects for purposes of the matter before this Court.4
[9] Ms Klein instructed her attorney s at the time , Schoeman Law Inc, to
respond to the attorneys of Mr Newton. It is common cause that these
attorneys assisted her with the letter of demand. Ms Klein did not
repay the amount claimed. So s ubsequently, Mr Newton’s attorney
issued a summons on 16 April 2025 for R779 075.40. T he formal
letter of demand claimed payment of R664 654.00, together with
interest at the prescribed legal rate, whereas the subsequent summons
that followed reflected an increased claim of R779 075.40. An email
dated 3 April 2025, compiled by Mr Newton’s attorneys, sets out the
amounts allegedly owed and provides an explanation for the higher
3 See para 7.3 of the answering affidavit in these action proceedings and attached thereto as annexure
DJH2; and para 5 of the particulars of claim in the main action proceedings and marked as Annexure FA8
to the founding affidavit in the application proceedings before this Court and found in the Court Index at
page 42.
4 See the letter of demand marked Annexure FA5 to the founding affidavit in the application proceedings
before this court and found in the Court Index at page 38.
amount subsequently claimed in the summons. The summons further
provides for interest on the amount of R779 075.40, ‘calculated at the
prescribed legal rate a tempore morae to the date of final payment’.
[10] The summons was served on 16 April 2025 by affixing it to the gate
of a property owned by Ms Klein in Camps Bay. The property was
neither Ms Klein’s residence nor her chosen domicilium citandi et
executandi. The sheriff of the court only served the summons once
and it was a one -day service offered. The property to which gate the
summons was affixed is used as a rental property and available for
short-term rent like an Airbnb . Apparently, the property has been
rented out in this manner since December 2023 to date.
[11] The attorneys of Mr Newton then proceeded to also email the
attorneys that had assisted Ms Klein with the letter of demand, namely
Schoeman Law Inc, a copy of the summons on 17 April 2025. On 24
April 2025, Schoeman Law Inc advised Mr Newton’s attorneys that,
although they had received the summons via email, it had not been
properly served. They indicated that no person at the service address
had accepted service on Ms Klein’s behalf, and that they had neither
consented to service by email nor agreed to accept service of the
summons on her behalf. They further stated that they would inform
Ms Klein accordingly, take instructions, and revert.5
5 See the e mail correspondence marked Annexure FA3 to the founding affidavit in the application
proceedings and found at the Court Index at page 36.
[12] Mr Newton’s attorneys responded to this email , dated 24 April 2025
by expressly stating that they confirm that the summons was served
by affixing a copy to the front gate of said property, but added that
‘[s]uch became necessary in respect of the impending date of
prescription’.6 They further added that they acknowledged that the
attorneys to whom the summons was emailed did not have
instructions to receive service on Ms Klein’s behalf and that the email
of the summons was ‘merely a courtesy’ and would ask for
condonation for the manner of service if necessary.7
[13] After receiving the summons via email, Schoeman Law Inc ,
subsequently also contacted their former client, Ms Klein, on 24 April
2025 and informed her of the summons they received and the
summons that was affixed to her rental property in Camps Bay. The
attorneys were then later formally appointed to represent Ms Klein
during court proceedings.
[14] In the meantime, Mr Newton proceeded to continue with the action
proceedings, and it was initially on the unopposed roll, whereafter the
matter became opposed. In the particulars of claim 8 in the action
proceedings only the following facts are provided:
‘3. In and during 2018, and at Cape Town, Plaintiff [Mr Newton] and
Defendant [Ms Klein] entered into an oral agreement whereby Plaintiff lent
and advanced the total sum of R779 075.40 to Defendant between the
6 See the email correspondence marked Annexure FA4 to the founding affidavit in the application
proceedings and found in the Court Index at page 37.
7 Ibid.
8 See Annexure FA8 to the founding affidavit in the application proceedings and found in the Court Index
at page 42.
period August 2018 to August 2019, and at the Defendant’s special instance
and request.
4. No time was stipulated in the agreement when repayment of the loaned
monies had to be effected.
5. On or about 19 April 2022, Defendant, in response to Plaintiff calling for
repayment of the capital loan amount, admitted her liability in respect of the
capital loan amount due and owing to Plaintiff, yet failed to make payment.’
Ms Klein opposed the proceedings and afforded Mr Newton 10 days
to remove the causes and intention and to amend the particulars of
claim, but he failed to do so.
[15] Ms Klein entered an appearance to defend despite the summons not
being found at the service address, to avoid default judgment and
preserve her right to challenge procedural irregularities. She filed her
notice of intention to defend on 6 May 2025 and only consulted with
her legal representatives on 14 May 2025, when the summons and
particulars were properly considered. It was submitted that Ms Klein
only became truly aware of the irregularities relating to service on that
date.
[16] Ms Klein then filed an application in terms of Rule 30 for the setting
aside of an irregular step taken by Mr Newton . Ms Klein did not
strictly comply with the time periods prescribed in Rule 30(2) and
thus also request ed the court’s indulgence to condone her non -
compliance.
Issues for determination
[17] The principal issue for determination is whether the alleged defects,
whether considered individually or cumulatively, constitute irregular
steps as contemplated in Rule 30. A further issue for determination is
Ms Klein’s non -compliance with the time periods prescribed in Rule
30(2), and whether her explanatio n in this regard warrants
condonation.
Arguments before court
[18] Counsel for Ms Klein contended that the defects relating to the service
of the summons and the pleadings are not merely technical or
procedural. Rather, they strike at the core of the proceedings’ validity
and materially impair Ms Klein’s ability to engage meaningfully with,
and respond to, the case advanced against her. Accordingly, the
cumulative effect of these defects is that Mr Newton has neither
properly brought Ms Klein before the court nor articulated a case to
which she can reasonably be expected t o plead. In these
circumstances, Mr Newton’s conduct constitutes an irregular step as
contemplated in Rule 30, and Ms Klein has therefore made out a
proper case for the relief sought in the notice of motion.
[19] Counsel for Ms Klein also contends that the email dated 24 April
2025 received from Mr Newton’s attorneys confirms that service was
never effected, rendering Mr Newton’s process materially defective in
both service and the formulation of the cause of action. It is further
argued that the claim had prescribed and that the attempt by Mr
Newton’s attorneys to email the summons to Ms Klein’s attorneys
was an improper and purely opportunistic effort to circumvent
prescription.
[20] Counsel argues that Ms Klein duly served a notice to remove the
causes of complaint in terms of Rule 30 on 27 May 2025, within a
reasonable period after identifying the irregularities and obtaining
instructions. Mr Newton failed to remedy the complaints within the
prescribed time, or at all, necessitating the institution of the present
application on 1 July 2025.
[21] Counsel for Ms Klein argues that Mr Newton’s particulars of claim
fail to comply with the requirements of Rule 18(4), in that they do not
contain a clear and concise statement of the material facts pleaded
with sufficient particularity to enable Ms Klein to reasonably and
meaningfully respond. In particular, Mr Newton has failed to plead,
inter alia, the individual amounts allegedly advanced over the period
August 2018 to August 2019, the dates upon which such advances
were made, the terms governing repayme nt, including when payment
became due and payable, and the basis upon which it is alleged that
Ms Klein is in breach. Counsel submits that, in the absence of these
material averments, Ms Klein is unable to properly plead to the claim.
[22] Counsel for Ms Klein submits that, insofar as it may be contended that
the Rule 30 notice and/or the present application were not delivered
within the prescribed time periods in Rule 30(2), any non -compliance
is satisfactorily explained by the timing of Ms Klein’s consultation
and the subsequent identification of the irregularities. Counsel further
argues that, in the event that this Court finds that there was non -
compliance, Ms Klein has demonstrated good cause for the granting
of condonation, having regard to her reasonable explanation for the
delay, the absence of prejudice to Mr Newton, the serious nature of
the irregularities complained of, and her strong prospects of success in
the Rule 30 application.
[23] Counsel for Ms Klein submits that th is Court must exercise its
discretion in favour of condonation, having regard to the principle that
matters should be determined on their merits rather than on
technicalities. Relying on Melane v Santam Insurance Co Ltd ,9
Uitenhage Transitional Local Council v South African Revenue
Service,10 and Ferris and Another v FirstRand Bank Ltd ,11 counsel
argues that the enquiry is one of fairness and the interests of justice,
requiring a flexible consideration of factors such as the explanation
for the delay, prospects of success, and prejudice.
[24] Counsel contends that Mr Newton’s complaint regarding lateness is
overly formalistic, and that ‘awareness’ for purposes of Rule 30(2)
must be understood practically , namely when Ms Klein was able to
obtain instructions and properly identify the irregularities. It is further
argued that the raising of multiple grounds of complaint, including
exceptions and Rule 30 relief, does not constitute a ‘further step ’ in
9 1962 (4) SA 531 (A).
10 2004 (1) SA 292 (SCA).
11 2014 (3) SA 39 (CC).
terms of Rule 30( 2), as supported by Jowell v Bramwell -Jones12 and
related authority.
[25] Counsel submits that Ms Klein has provided a full and reasonable
explanation for any delay, which arose from the timing of consultation
and the complexity and historical nature of the matter, and that she
acted promptly thereafter. There was no wilful default, Mr Newton
has suffered no prejudice, and Ms Klein has strong prospects of
success. Accordingly, it is submitted that this is a proper case for the
granting of condonation, to the extent required.
[26] Counsel for Ms Klein submits that proper service of process is a
foundational requirement for the valid institution of legal proceedings,
as it ensures that a defendant is afforded proper notice and an
opportunity to be heard. Rule 4 prescribes, in peremptory terms, the
manner in which service must be effected, and non -compliance
renders such service defective. Moreover, Rule 4(1)(a)(v), relied upon
by Mr Newton, applies to service on a company or corporation and
requires delivery to a responsible employee at the registered office or
principal place of business. Only where such an employee is
unavailable or unwilling to accept service may the process be affixed
to the main door. Absent compliance or proper authorisation,
defective service cannot confer proper notice.
[27] Counsel for Ms Klein submits that non -compliance with the Rules
regulating service renders such service defective and incapable of
12 1998 (1) SA 836 (W) at 903J-904G.
conferring proper notice, unless properly cured in a manner permitted
by law or authorised by a court. Further, in Absa Bank Limited v Mare
and Others 13 the court confirmed that while a sheriff’s return
constitutes prima facie evidence of its contents, it may be challenged
by clear evidence to the contrary. In this instance, the sheriff’s return
of service indicates that service was effected by affixing the summons
to the main entrance gate after a single attempt on 16 April 2025,
without making further enquiries, and with a same -day service fee
charged. Counsel for Ms Klein , therefore, contends that this did not
constitute proper service, as the affixed document never came to Ms
Klein’s attention. Thus, Mr Newton’s attorney’s conduct was dilatory,
as evidenced by the email of 24 April 2025, in which the attorney
acknowledged that service by affixing was resorted to due to
impending prescription, despite long -standing knowledge of the
claim. Mr Newton ’s attorney also acknowledged that Ms Klein’s
attorneys had not agreed to accept service on her behalf.
[28] Ms Klein’s counsel submits that Rule 4(2) makes it clear that where
service cannot be effected in the prescribed manner, a party must
approach the court for directions, and any deviation from the Rules ,
such as service by email , requires prior judicial authorisation.
Substituted service is an exceptional remedy and will only be
permitted where there is a proper evidentiary basis showing that the
chosen method is reasonably likely to bring the proceedings to the
defendant’s attention. Absent such authorisation or consent, electronic
13 2021 (2) SA 151 (GP) in para 19.
service of initiating process is invalid and does not cure defective
service.
[29] Counsel further relies on BMW South Africa (Pty) Ltd v William and
Another,14 where the court emphasised that compliance with Rule 4 is
mandatory and that any purported service not sanctioned by the court
constitutes an irregularity and is invalid. The court there held that
deviations from the prescribed method of service must be authorised
in advance through an application for substituted service, and
criticised attempts by litigants to adopt informal methods, such as
email, to avoid the consequences of late service or prescription. The
court further found that such conduct may amount to an improper
attempt to circumvent the Rules and does not cure the defect in
service.
[30] Counsel for Ms Klein further argues that the attorneys of Mr Newton
failed to effect proper service in accordance with Rule 4 and did not
obtain court approval for any deviation. Instead, the attorneys
attempted to serve the summons by email on Ms Klein’s attorneys
without consent, which constitutes an irregular and invalid form of
service. Counsel submits that this conduct, coupled with the
instruction to effect urgent same -day service and the subsequent
emailing of the summons, demonstrates an attempt by the attorneys to
circumvent the Rules to avoid prescription. Such actions, it is argued,
are impermissible, amount to an irregularity, and cannot constitute
proper service of initiating the process.
14 (31587/21) [2022] ZAGPPHC 450 at paras 22-24.
[31] Ms Klein ’s counsel submits that Mr Newton accordingly failed to
effect service of the summons in accordance with the peremptory
provisions of Rule 4, with the result that Ms Klein was not properly
brought before this Court. The reliance on Rule 4(1) (a)(v) is
fundamentally misplaced, as it applies only to juristic persons and not
to a natural person such as Ms Klein. The purported service by
affixing the summons to a property that was neither her residence nor
chosen domicilium is therefore irregular and invalid ab initio ,
particularly where the summons never came to her attention and was
not served by a method reasonably calculated to do so.
[32] Counsel further argues that Mr Newton’s subsequent attempt to serve
the summons by email does not cure the defect, as such service
requires prior consent or judicial authorisation, neither of which was
present. Mr Newton also failed to obtain an order for substituted
service in terms of Rule 4(2), and his own correspondence
acknowledges the need for condonation, effectively conceding non -
compliance. Accordingly, the defective service constitutes an irregular
step that goes to the root of the proceedings, depriving Ms Klein of
proper notice and rendering the process liable to be set aside.
[33] Counsel for Ms Klein submits that Rule 18(4) requires a clear and
concise statement of material facts with sufficient particularity to
enable a party to plead, the purpose being to properly define the issues
and avoid speculation as to the case to be met. Relying on Trope v
South African Reserve Bank ,15 counsel argues that a party must plead
the underlying material facts with clarity, and not merely make bald or
conclusory allegations. In that case, the court held that a failure to set
out the factual basis of a claim renders a pleading vague and
embarrassing, particularly where it prevents the opposing party from
understanding the case it must meet. Counsel also further referred to
Jowell v Bramwell -Jones,16 where it was held that the enquiry is
twofold, firstly, whether the pleading is vague , and secondly, whether
such vagueness causes prejudice. Thus, a pleading is only excipiable
if the vagueness is serious enough to prejudice the opposing party by
impairing its ability to plead.
[34] Counsel for Ms Klein submits that Mr Newton’s particulars of claim
fall materially short of the requirements of Rule 18(4) and the
principles in the case law relied upon , in that they fail to set out the
necessary material facts to sustain the alleged oral loan agreement. In
particular, Mr Newton does not itemise the amounts allegedly
advanced, provide dates, explain the method of payment, plead the
essential repayment terms, or furnish a proper computation of the
amount claimed, rendering the claim a bare and unsupported assertion
of indebtedness.
[35] Counsel also argues that the pleading is internally inconsistent and
incomplete, especially regarding the alleged breach and demand, as no
proper particulars were given as to when repayment became due or
15 1993 (3) SA 264 (A).
16 1998 (1) SA 836 (W).
how Ms Klein was placed in mora. This lack of particularity causes
substantial prejudice, as Ms Klein is unable to meaningfully respond,
assess quantum, or raise prescription. Accordingly, the defects are
substantive, render the particulars of claim vague and embarrassing,
and constitute an irregular step that falls to be set aside, particularly in
light of Mr Newton’s failure to remedy the defects despite notice.
[36] Counsel for Mr Newton referred th is Court to the well -established
principles governing applications for condonation, relying on
established case law, such as Smith NO v Brummer NO and Another 17
to emphasise that condonation is not a right , but a discretionary
remedy granted only upon a showing of ‘good cause’. In this regard,
the authorities make clear that courts deliberately refrain from
exhaustively defining ‘good cause ’, preserving a flexible, case -by-
case approach.
[37] Mr Newton’s counsel submitted, while relying on Ingosstrakh v
Global Aviation Investments (Pty) Ltd and Others ,18 that a court will
generally consider factors such as whether a reasonable and full
explanation for the delay has been provided (covering the entire
period of non -compliance) whether the application is bona fide and
not intended to delay proceedings, whether there has been any
reckless disregard of the rules, the prospects of success in the
underlying claim, and whether any prejudice to the opposing party can
be cured by an appropriate costs order.
17 1954 (3) SA 352 (O) at 357H-358A and 357. The court there uses the term ‘sufficient cause’.
18 [2021] ZASCA 69 at para 21.
[38] In addition, Mr Newton’s counsel highlighted that the court in HL v
Member of the Executive Council for Health of the Free State
Provincial Government 19 emphasised broader considerations of
fairness and the proper administration of justice, including the
adequacy of the explanation, the applicant’s bona fides, responsibility
for the delay, and any contributing factors.
[39] Counsel for Mr Newton further referred to the following facts: Ms
Klein served her notice of intention to defend the action proceedings
on 6 May 2025, but only delivered her Rule 30 notice on 27 May
2025. Thereafter, she proceeded to serve th is application before this
court out of time on 1 July 2025. It was further noted that Ms Klein
subsequently sought to regularise these delays by filing a notice to
amend together with an amended notice of motion, in which she
applied for condonation for the late filing of the application.
[40] Mr Newton ’s counsel argued that Ms Klein failed to provide an
adequate or acceptable explanation for her non -compliance with the
Rules. Her attempt to justify the late delivery of the irregular step
notice on the basis that she only became aware of the alleged defects
upon consulting her attorneys is untenable, as the applicable test is
when she ought reasonably to have become aware of the causes of
complaint. On this basis, it was contended that, had Ms Klein
exercised reasonable care, she would have identified the alleged
defects when her attorneys received the summons and particulars of
claim, or at the latest by 6 May 2025, when she served her notice of
19 [2017] JOL 39373 (FB) at para 45.
intention to defend. Her failure to account for the delay in launching
the application within the prescribed time periods was submitted to be
fatal to her case.
[41] Counsel further submitted that Ms Klein’s conduct is contradictory
and opportunistic, in that she seeks to have the summons and
particulars of claim set aside for non -compliance with the Rules,
while she herself has failed to comply with those same Rules. This
criticism was extended to her failure to include a condonation prayer
in her initial notice of motion and her inability to explain the
significant delay, before seeking to regularise the position.
[42] Therefore, counsel contended that Ms Klein cannot properly seek
relief from court in circumstances where she is guilty of the very
procedural irregularities she complains of, and that she has failed to
make out a case for condonation. Accordingly, it was argued that the
application falls to be dismissed on this ground alone.
[43] Mr Newton’s counsel submitted that, in terms of Rule 18(4), a party is
required to plead the material facts underlying the claim clearly and
concisely, with sufficient particularity to enable the opposing party to
respond. In this context, a ‘cause of action’ refers to the complete set
of material facts that must be proved to establish an enforceable claim
and entitle Mr Newton to judgment. It encompasses every fact
necessary to sustain the claim, but does not extend to the evidence by
which those facts are to be proved.20
[44] In short, counsel submitted that Mr Newton has met the requirements
of Rule 18(4) by pleading the material facts necessary to sustain his
cause of action. It was argued that, to succeed in a claim for
repayment of a loan, a party need only allege and prove the existence
of the agreement, the advancement of money pursuant thereto, and
that the amount is repayable. In the absence of any agreement to the
contrary, a loan is, at common law, repayable on demand, and no
express averment to that effect is required. Thus, while relying on
Interaccess (Pty) Ltd v Van Dorsten 21 and Credit Corporation of SA v
Roy22 counsel argued that it is therefore not required to include an
allegation that the amounts sought are due and payable.
[45] Mr Newton’s c ounsel contended that these essential averments have
been properly pleaded, and that the particulars of claim adequately
inform Ms Klein of the case she is required to meet. The demand for
further detail, such as the exact amounts and dates of each payment,
was characterised as unnecessary for pleading purposes, as such
matters pertain to evidence rather than the formulation of a cause of
action. It was submitted that these issues are more appropriately dealt
with during discovery, through requests for further particulars, or at
trial. Accordingly, the complaint regarding non -compliance with Rule
18(4) is without merit and ought to be dismissed.
20 Relying on Ascendis Animal Health (Pty) Limited v Merck Sharpe Dohme Corporation and Others 2020
(1) SA 327 (CC) at paras 51 and 53.
21 [1999] 2 All SA 561 (C).
22 1966 (1) SA 12 (D).
[46] During argument, counsel for Mr Newton placed considerable
reliance on the wording of the email received from Schoeman Law
Inc dated 24 April 2025 , in response to receiving the summons via
email. Therefore, it is imperative to provide the exact wording of the
email. It reads as follows:
‘Please note our Client was not served (did not receive personal service) nor did
we agree to receive service of process on her behalf for purposes of service of
your summons. Rights in this regard are fully and strictly reserved.
We will take instructions and revert.’ (Own emphasis.)
[47] Mr Newton’s counsel contended that the use of the word ‘Client’ and
the statement ‘we will take instructions and revert ’ were indicative of
Schoeman Law Inc acting as attorneys of record for Ms Klein. It was
further argued that, in light of the letter of demand dated 13 March
2025, which expressly referred to the institution of summons should
payment not be forthcoming, as well as subsequent email
correspondence relating to the demand, Ms Klein must have been
aware of the impending proceedings . On this basis, counsel submitted
that Schoeman Law Inc could be regarded as the attorneys of record
with a mandate to accept service of the summons on behalf of their
client, Ms Klein.
[48] However, counsel for Mr Newton also conceded that service of the
summons and particulars of claim did not comply with Rule 4, but
submitted that such non -compliance is not decisive. Relying, inter
alia, on Prism Payment Technologies (Pty) Ltd v Altech Information
Technologies (Pty) Ltd (t/a Altech Card Solutions) and Others 23 and
other cases, counsel argued that the true enquiry is whether service
was nevertheless effective. In particular, counsel referred to the Prism
case where it was said that:24
‘The effectiveness issue is not, in my view, appropriately decided as a
condonation issue. It is the central underlying purpose of the rule. On the face of
it a summons served in any manner, but which is served effectively, is regularly
served. Great injustice may follow if the service is set aside on the basis of
irregularity without applying the effectiveness test since it may then be argued
that prescription has not been interrupted. In my view it is doubtful that rule 30 is
the proper procedure to follow.’
[49] Further reference was placed on Obiang v Janse van Rensburg and
Others25 where the SCA said, while relying inter alia on Prism:26
‘It has long been established in our law that service in strict compliance with rules
of service is not the test for effective service. That approach is formulaic and
mechanical and has been rejected by our courts. The test is rather, despite non -
compliance with the rules of service, whether the other party received notice. This
gives effect to the purpose of the rules of service which is that a person who is
being sued must receive notice. Provided that this purpose is achieved there will
be proper service, even though not in strict compliance with the rules.’
[50] In the matter before this Court , it was contended that there had been
extensive engagement between the parties’ attorneys before the
issuing of summons concerning the same dispute, namely the
repayment of the alleged loan, during which Ms Klein’s attorneys
actively sought indulgences and considered proposals on her behalf.
23 2012 (5) SA 267 (GSJ) at paras 18 and 21-24.
24 Idem at para 24.
25 (714/2023) [2025] ZASCA 30 (31 March 2025) at para 28.
26 Prism above fn 23 at para 28 (footnotes omitted)
[51] It was further submitted that, against the backdrop of impending
prescription, Mr Newton had little option but to proceed with the
issuing of summons. The fact that the summons and particulars of
claim ultimately came to the attention of Ms Klein was, according to
counsel, borne out by her subsequent delivery of a notice of intention
to defend, followed by the irregular step notice and the present
application. On this basis, counsel argued that the ‘effectiveness test’
articulated in Prism had been satisfied.
[52] Counsel also submitted that any issue relating to prescription ought
properly to be raised by way of special plea rather than through the
present application. Finally, it was contended that Ms Klein suffered
no prejudice as a result of the defective service, as she was able to
take the necessary procedural steps, and that the absence of prejudice
militates against upholding the challenge to service.
[53] Mr Newton’ s counsel argued, in conclusion, that th is Court should
follow the reasoning in the Prism case regarding effective service and
dismiss the application with costs . It was further contended that any
non-compliance with the Rules relating to service of the summons and
particulars of claim should be condoned to the extent necessary.
Applicable legal principles, discussion and conclusion
[54] The issues before the Court turn on the application of Rules 4, 18(4),
and 30. Generally, Rule 4 regulates the manner of service of court
process and does so in peremptory terms. It prescribes distinct
methods of service depending on whether the party to be served is a
natural person or a juristic person.
[55] Rule 4(1)(a)(i) to (iv) and (vi) set out the primary methods for service
of process on a natural person. In essence, service must preferably be
effected personally on the individual, or alternatively at the person’s
residence or place of business by delivery to a person apparently over
the age of 16 years in charge of the premises, or, where the person
cannot be found, at the place of employment by leaving the process
with a person in authority. Service may also be effected at the
person’s chosen domicilium citandi et executandi , or by delivering a
copy to any agent who is duly authorised in writing to accept service
on behalf of the person upon whom service is to be effected.
Additionally, Rule 4(1) (a)(aA) provides that, where a party to be
served with initiating application proceedings is already represented
by an attorney of record, such documents may be served on that
attorney by the initiating party. These provisions reflect a structured
approach aimed at ensuring that service is effected in a manner
reasonably likely to bring the process to the attention of the person
concerned.
[56] Rule 4(1)(v) provides for service in the case of a juristic person , such
as a company, and provides that service is concluded by the sheriff of
the court:
‘in the case of a corporation or company, by delivering a copy to a responsible
employee thereof at its registered office or its principal place of business within
the court’s jurisdiction, or if there be no such employee willing to accept service,
by affixing a copy to the main door of such office or place of business, or in any
manner provided by law’. (Own emphasis.)
[57] So, in short, in the case of a natural person, service must ordinarily be
effected personally, at the person’s residence or place of employment,
or at a chosen domicilium. In the case of a juristic person, such as a
company, service must be effected at its registered office or principal
place of business on a responsible employee or in the absence of any
such employee willing to accept service, by affixing a copy to the
main door of such office or place of business . This distinction is
important, as the Rules recognise the different nature of these parties
and regulate service accordingly by setting minimum, mandatory
standards.
[58] Where service cannot be effected in these prescribed ways, Rule 4(2)
becomes relevant and provides:
‘If it is not possible to effect service in any manner aforesaid, the court may, upon
the application of the person wishing to cause service to be effected, give
directions in regard thereto. Where such directions are sought in regard to service
upon a person known or believed to be within the Republic, but whose
whereabouts therein cannot be ascertained, the provisions of sub -rule (2) of rule 5
shall, mutatis mutandis, apply.’27
[59] Rule 4(2) permits a party to apply to court for authorisation to use an
alternative method of service that is reasonably likely to bring the
process to the attention of the party concerned. Thus, Rule 4(2)
27 Rule 5(2), in essence, provides that service of documents may be effected in various prescribed ways,
including delivery by hand, post, or other permitted methods, depending on the circumstances.
operates as a limited exception to the strict requirements of Rule 4,
but only where judicial oversight has been obtained in advance . Rule
4(2) deals with substituted or alternative service. It provides that
where service cannot be effected in any of the prescribed manners set
out in Rule 4, a party must approach the court for directions as to how
service is to be effected. This means that any deviation from the
ordinary methods of service, such as service by email or another
unconventional method, requires , in my view , prior judicial
authorisation. Without such authorisation, the service will be irregular
and invalid. It is common cause that no such authorisation for
alternative service was sought in the action proceedings.
[60] It is, in my view, entirely irrelevant whether Ms Klein may have
become aware of the summons and its contents, as such awareness
cannot cure or legitimise clear non-compliance with and total
disregard for the peremptory provisions of Rule 4 for natural persons.
The Rules governing service are designed to ensure that legal process
is brought to a party’s attention in a manner that is lawful, structured
and reasonably certain, and not by chance or fortuity. To hold
otherwise would undermine the fundamental purpose of proper
service and permit parties to disregard the prescribed procedures with
impunity.
[61] In Erasmus Superior Court Practice it is stated that ‘[m]ere
knowledge of issue of summons does not constitute service and
cannot relieve a plaintiff of the obligation to follow the prescribed
rules.’28 Actual knowledge of the proceedings cannot therefore
override, nor serve as a justification for, a failure to comply with the
Rules regulating service on natural persons. The fact that a litigant
may have become aware of proceedings does not, without more,
dispense with the requirement that service be effected in accordance
with Rule 4. Proper service is a jurisdictional prerequisite designed to
ensure procedural fairness and legal certainty. Actual knowledge of
the proceedings cannot ordinarily cure a failure to comply with the
prescribed modes of service , unless the court, in the exercise of its
discretion, condones the irregularity or authorises substituted service.
[62] However, Erasmus , relying on Investec Property Fund Limited v
Viker X (Pty) Limited and Another 29 and Obiang30 emphasises that
even where service does not strictly comply with the prescribed rules,
it may nonetheless be valid if it was effective , namely, where the
defendant actually received the summons ‘and suffered no prejudice ’
as a result. 31 It is evident from the facts before this Court that the
primary motivation for circumventing proper service, as required by
Rule 4 in respect of a natural person, was to prevent the claim from
prescribing, it having been clearly stated that prescription would occur
on or about 19 April 2025. An attempt solely to avoid prescription
cannot justify non -compliance with the Rules. That reason alone is
wholly insufficient in my view.
28 Van D E Van Logger enberg Erasmus Superior Court Practice Volume 2, Second Edition (loose -leaf) at
pages D1 Rule 4 –6 Service 2 8, 202 5; and see the authorities relied upon there in fn 5, namely First
National Bank of SA Ltd v Ganyesa Bottle Store (Pty) Ltd; First National Bank of SA Ltd v Schweizer
Drankwinkel (Pty) Ltd 1998 (4) SA 565 (NC) at 568B -C and Sekoati v Standard Bank of South Africa Ltd
2025 (5) SA 581 (GP) at para 26.
29 (2016/07492) [2016] ZAGPJHC 108 (10 May 2016) at paras 7-19.
29 (2016/07492) [2016] ZAGPJHC 108 (10 May 2016) at paras 7-19.
30 Obiang above fn 25 at para 28.
31 Erasmus Superior Court Practice above fn 28 at pages D1 Rule 4–6 Service 28, 2025.
[63] Proper service of summons in accordance with the Rules is cardinal. It
is not sufficient that the summons may come to the attention of a
defendant. What is required is at least a reasonable and lawful attempt
at service in the genuine hope that it will come to the defendant’s
attention. The Rules, including Rule 4, establish the minimum
standards applicable to service on both juristic and natural persons,
and must be adhered to. In this matter, no prior judicial sanction was
sought for alternative service, and I find no basis to condone what is
plainly non-compliance with the Rules.
[64] In the answering affidavit filed in the action proceedings by Mr
Newton’s attorney, it is conceded in paragraph 5 that the delivery of
the summons by email to Schoeman Law Inc did not constitute formal
service. It was described instead as a courtesy, extended on the basis
that, at that stage, Ms Klein was believed to be represented by
Schoeman Law Inc. During argument, Mr Newton’s counsel relied
heavily on the wording of Schoeman Law Inc’s email dated 24 April
2025, discussed above, in an attempt to establi sh that Schoeman Law
Inc already held a mandate to represent Ms Klein at the time the
summons was emailed. In my view, however, this contention is,
properly considered, misplaced. The correspondence, read as a whole,
does not support the contention that Schoeman Law Inc w as
authorised to accept service or was acting as attorneys of record.
Crucially, the responding email from Mr Newton’s attorneys
expressly indicates that the summons had been transmitted merely as a
courtesy, which undermines any suggestion that Schoeman Law Inc
had the requisite mandate to accept service on behalf of Ms Klein.
[65] Counsel for Mr Newton referred the Court to various authorities in
which alternative methods of service were accepted and where
reliance was put on ‘effective service’ as provided for in Prism and
Obiang, respectively as opposed to compliant service in terms of the
Rules. It is thus true that courts have held that where it is
incontrovertibly established that the summons came to the defendant’s
attention and no prejudice resulted, strict reliance on technical defects
may not always be permitted. However, it is trite that ‘[s]ervice is at
the court ’s discretion, and the court has the inherent jurisdiction to
regulate its process ’ and thus has a discretion to c ondone service.32
Each matter must be determined on its own facts, and those decisions
do not necessarily detract from the requirement that the present case
be assessed in light of its particular circumstances. Besides, there are
also courts, such as in the BMW case that have reaffirmed that actual
knowledge does not automatically cure defective service. In the matter
before me, the position is rendered decisive by the email of Mr
Newton’s attorney dated 24 April 2025, which expressly
acknowledges that there had been no proper service and that the
transmission of the summons by email was merely a courtesy and to
prevent prescription. This admission is fatal to Mr Newton’s case and
effectively brings the issue of service to an end.
32 See Obiang v Van Rensburg and Others [2023] 2 All SA 211 (WCC) at para 61.
[66] In the Prism case, service of the summons on the fourth defendant
took place at 1[...] E[...] Close, Linbro Business Park, Sandton, which
the Sheriff recorded as being the defendant’s place of employment.
The process was not handed to the fourth defendant personally, but
was effected at that address by leaving the documents with a person
present there, identified as an employee (including an HR practitioner
on a prior occasion). This address functioned as the central reception
point and gateway to the fourth defendant’s place of work: it was
where visitors reported, where calls were received and routed to him,
and where his presence in or out of office was recorded. Although his
actual office was located approximately 1.5 kilometres away, access
to him could only be obtained through this reception point. On this
basis, the court there found that service at this address was sufficiently
connected to his employment to constitute service at his place of
employment, and in any event, that the service was effective as it
brought the summons to his attention.
[67] In Obiang,33 service of the various court processes took place after the
appellant, the President of Equatorial Guinea, terminated his
attorneys’ mandate, and was carried out primarily through the
Equatorial Guinea Embassy in Pretoria, which had been identified as a
contact point in the notice of withdrawal. After the termination in July
2020, the appellant’s former attorneys filed notices of withdrawal
indicating that he could be reached via the Embassy, specifically for
the attention of Ms Hombria. Despite this, the appellant failed to
comply with rule 16(2) by not appointing a new address for service.
33 Obiang above fn 25.
Following this, the respondent proceeded to serve the application to
strike out the appellant’s defence in July 2020 by both emailing it to
Ms Hombria at the Embassy, clearly indicating the hearing date, and
by physical service through the Sheriff at the Embassy, where it was
received by an official. Although the return of service contained a
minor error in the street number, this defect did not invalidate the
service.
[68] Further trial -related documents in Obiang were also served at the
Embassy between January and February 2021. These included the
notice of set down for trial, a Rule 28 notice of amendment, expert
notices, and the trial bundle index. These documents were physically
delivered to the Embassy and signed for by a security guard, and this
was supplemented by email transmissions to Ms Hombria, attaching
copies of all the documents. In addition, the rule 28(7) notice together
with the amended pages was hand -delivered directly to Ms Hombria,
who acknowledged receipt, and this notice explicitly recorded the trial
date as 8 March 2021.
[69] Throughout the litigation, there was a consistent pattern of service.
Documents were served by hand delivery at the Embassy to staff or
officials and by email communication to Embassy representatives,
particularly Ms Hombria. This dual method reinforced the likelihood
that the documents would reach the appellant through official
channels. In evaluating this method of service, the court held that
strict compliance with formal rules such as edictal or substituted
service was not decisive. The essential questi on, was whether the
documents came to the attention of the appellant. The court found that
service was valid because it was reasonably likely, and indeed
demonstrated, that the documents reached him through Embassy
channels. The appellant’s failure to appoint an address for service,
together with his inaction, justified the respondent’s reliance on the
Embassy as the effective address for service. The SCA held that,
although service did not strictly comply with formal rules, it was valid
because it was effected at the designat ed address and brought the
proceedings to the appellant’s attention, thereby achieving the purpose
of service.
[70] The SCA in Obiang does not suggest, as a general proposition, that
non-compliance with the court rules of service is permissible, nor
does it imply that the Rules may simply be disregarded. In my view,
on a proper reading, it instead affirms the court’s discretion to
condone service, recognises the court’s inherent jurisdiction to
regulate its own processes, and clarifies the correct test for effective
service, a test that must be applied with due regard to the particular
facts and circumstances of each case . The SCA emphasises that strict,
mechanical compliance with the rules is not decisive. Instead, the
central inquiry in applicable cases is whether, despite any procedural
irregularity, the intended re cipient in fact received notice of the
proceedings. This purposive approach gives effect to the underlying
objective of the rules of service, namely , to ensure that a person being
sued is made aware of the action. Where that purpose is fulfilled,
service may be regarded as effective even in the absence of strict
compliance.
[71] In my view, reliance on Prism and Obiang, respectively and the
‘effective service’ principle is distinguishable from the facts in the
present matter. In Prism the summons and in Obiang the documents
were served by being left with a person at a location sufficiently
connected to the defendant and appellant respectively, thereby
providing a tangible basis for concluding that the process would come
to the defendant’s or appellant’s attention. These aspects materially
distinguish the present facts from those in Prism and Obiang, where
there was at least some human intermediary through whom the
process could be received and brought to the attention of the litigant.
[72] By contrast, in the matter before this Court, service was not effected
on any person at all, but merely by affixing the summons to the gate
of the property. This constituted an entirely irregular procedure, as it
was purportedly carried out in terms of a rule applicable to juristic
persons, and was accordingly inappropriate and invalid in the
circumstances.
[73] In addition, the conduct of Mr Newton’s attorneys in effecting service
was, in my view, notably careless. The sheriff made only a single
attempt at service, and no proper or meaningful effort was made to
effect service by alternative means. It is evident that the primary
objective was simply to interrupt prescription, with little regard for
compliance with the Rules. This lack of diligence and disregard for
the prescribed procedures does not persuade me to exercise my
discretion in favour of condoning the i rregular service. Furthermore,
in Prism and Obiang there was no reliance on an incorrect subrule of
Rule 4 governing service, as is the position in the present case.
Accordingly, the inference and acceptance of effective service in
Prism and Obiang do not readily apply to the present matter, as the
instances of service in those cases arose from highly specific
circumstances.
[74] Rule 18(4) governs the form and content of pleadings. It requires that
every pleading contain a clear and concise statement of the material
facts upon which the party relies, pleaded with sufficient particularity
to enable the opposing party to reply. In the particulars of claim in the
action proceedings, Mr Newton pleads only that an oral agreement
was concluded during 2018 in terms of which a total amount of R779
075.40 was advanced between August 2018 and August 2019, that no
time for repayment was stipu lated, and that Ms Klein admitted
liability on or about 19 April 2022 but failed to make payment.
[75] Rule 18(4) requires that a pleading contain a clear and concise
statement of the material facts relied upon, with sufficient particularity
to enable the opposing party to reply. I further observe that oral
unsecured loan agreements, while valid in law, often present
significant evidential challenges. It is frequently difficult to prove not
only their existence, but more importantly their terms. In the present
matter, the existence of the oral agreement is not in dispute. However,
the difficulty lies in the absence of clearly pleaded and defined terms.
The particulars of claim contain sparse information regarding the
terms of the agreement.
[76] I agree with counsel for Ms Klein that the essential facts, being the
facta probanda to which Ms Klein is required to plead, are neither
clear nor concise and do not set out the material facts upon which Mr
Newton relies. This renders the pleading vague and embarrassing.
This case further illustrates the difficulty in practice to sometimes
distinguishing between facta probanda and facta probantia , namely
between the essential facts required to be pleaded and the evidence
required to prove those facts.
[77] In my view, the submission that all material facts have been
adequately pleaded must be approached with caution in the present
context. While it may well be correct in matters involving written
agreements, where the terms are clearly defined and readily
ascertainable, the same cannot readily be said of a verbal agreement of
the nature alleged in this case.
[78] Where reliance is placed on an oral agreement, the terms thereof are,
by their very nature, less certain and more difficult to establish. In
such circumstances, it becomes all the more important that the
pleadings set out the material terms with sufficient clarity and
particularity to enable the opposing party to understand the case he or
she is required to meet. Absent such detail, the distinction between
material facts and evidence becomes less easily maintained.
[79] In the present matter, the lack of specificity regarding the essential
terms of the alleged agreement, including the manner in which the
advances were made and are said to be repayable, raises legitimate
concerns as to whether the cause of action has been pleaded with the
degree of particularity required in law.
[80] Counsel of Mr Newton argued that, at common law, a loan is
repayable on demand , unless otherwise agreed, and therefore it is not
necessary to expressly allege in the particulars of claim that the debt is
due and payable. Reliance was placed on Interaccess34 and Credit
Corporation v Roy 35 in support of this proposition. However, I am
unable to agree with this contention. In the present matter, the
particulars of claim merely allege that, in terms of the verbal
agreement concluded between the parties, no time was fixed for
repayment of the loan. Paragraph 5 of the particulars of claim merely
states that on or about 19 April 2022, Ms Klein, in response to a
demand for repayment, admitted liability but failed to pay. The
particulars do not allege when the loan became repayable or when any
demand was made, rendering it unclear when the obligation to repay
arose. It is therefore not self -evident that the agreement falls squarely
within the category of loans repayable on demand as contemplated in
the authorities relied upon by counsel. The applicability of those cases
is, at best, debatable on the facts before this Court.
[81] In any event, the very uncertainty surrounding the terms of repayment
underscores the necessity for greater particularity in the pleadings. In
circumstances where no express terms governing repayment are
alleged, it is incumbent upon the plaintiff to set out clearly the basis
upon which it is contended that the debt has become due and payable.
34 Above fn 21.
35 Above fn 22.
The omission to do so renders the particulars of claim lacking in the
requisite clarity and particularity expected in pleadings.
[82] In my view, the particulars of claim do not meet this standard, as they
fail to set out the necessary material facts with adequate particularity.
The result is that the pleading is vague and embarrassing and does not
enable Ms Klein to meaningfully plead or properly identify the issues
in dispute. In particular, there is insufficient clarity as to when
repayment became due, what the loan related to, and when and on
what basis repayment was demanded. Consequently, the pleading
does not fulfil the purpose of Rule 18(4), which is to ensure that the
issues between the parties are properly defined and that a party is not
left to speculate as to the case it must meet.
[83] Rule 30 provides a procedural remedy in respect of irregular
proceedings or steps. It allows a party to apply to court to set aside
any step or proceeding that does not comply with the Rules, provided
that the complaint is raised within the prescribed time periods, or
condonation is sought. It is aimed at ensuring procedural fairness and
compliance with the Rules.
[84] I find that Mr Newton’s institution of the action application is
fundamentally defective in respect of the formulation of the cause of
action. In relation to service, Mr Newton failed to comply with the
peremptory provisions of Rule 4, relied on an inapplicable subrule,
and purported to effect service by electronic means without consent or
judicial authorisation. As a result, Ms Klein was not properly brought
before court. These defects, whether considered individually or
cumulatively, constitute irregular steps in terms of Rule 30 and
materially prejudice Ms Klein in the preparation of her defence.
[85] In my view, the impending prescription of a claim cannot, without
more, justify non-compliance with the Rules governing service. While
it may explain the urgency with which a party acts, it does not excuse
a failure to comply with what is a fundamental procedural
requirement. Proper service is essential to the fair and orderly conduct
of proceedings, and cannot be disregarded lightly. Accordingly,
although prescription may form part of the broader context within
which the court exercises its discretion, it cannot be the sole or
dominant factor in condoning non -compliance. The enquiry must
remain a balanced one, taking into account all relevant considerations,
including the nature of the irregularity, the explanation tendered, and
the interests of justice.
[86] In my view, counsel for Mr Newton, in advancing submissions on
condonation for service, loses sight of the nature of the discretion this
Court is called upon to exercise in the present matter. In particular,
insufficient regard is had to the distinction between the respective
forms of condonation sought by the parties. Ms Klein seeks
condonation in respect of non -compliance with prescribed time
periods, which arose in the context of the summons that was not
served in accordance with the Rules. Mr Newton, by contrast, seeks
effectively to overlook or excuse non -compliance in relation to a
fundamental procedural step, namely the proper service of the
summons itself. These are not analogous forms of relief and cannot be
approached on the same footing.
[87] Moreover, it is necessary to consider the impact that the defective
service of the summons has had on the procedural timeline. The
absence of proper service is not a mere technicality, but a foundational
irregularity which has a direct bearing on when and how Ms Klein
was required to act. Of particular significance is the fact that she only
became aware of the summons through attorneys who were not
formally on record as acting on her behalf in the manner ordinarily
contemplated by the Rules. This circumstance must be considered
when assessing the reasonableness of her conduct and any delay
attributable to her.
[88] Ultimately, the enquiry is whether either, or both, parties have
provided good cause, bona fide, reasonable and full explanations for
their respective delays and instances of non -compliance.36 That
assessment must be undertaken with due regard to the differing
procedural positions of the parties and the overarching interests of
fairness and justice.37
[89] Insofar as there may have been any non -compliance with the time
periods prescribed in Rule 30(2), I am satisfied that Ms Klein has
provided a full and reasonable explanation. She acted promptly upon
36 See also AH Vest Limited t/a Joy Foods Limited v Corruseal Corrugated Gauteng (Pty) Ltd
(2025/049929) [2026] ZAGPJHC 470 (28 April 2026) at para 19 to 31 and the authorities cited regarding
‘good cause’.
37 See also Bertie van Zyl (Pty) Ltd and Another v Minister for Safety and Security and Others 2010 (2) SA
181 (CC) at para 14.
obtaining proper instructions and upon identifying the irregularities,
and there is no indication of wilful delay.
[90] As to prejudice, Mr Newton has not demonstrated any cognisable
prejudice arising from the timing of th is application. His reliance on
the impending prescription of the claim cannot avail him, as any
prejudice in that regard is self-created and stems from his failure to act
timeously in instituting proceedings. In any event, on the facts before
me, the debt appears, and it is indeed quite possible, to have already
prescribed, irrespective of whether the email from Ms Klein
constitutes an acknowledgement of debt. However, it is not necessary
for me to make any definitive finding on prescription.
[91] It must be emphasised that extinctive prescription is grounded in the
principle of legal certainty, ensuring that debtors are not indefinitely
exposed to old claims while promoting fairness by requiring creditors
to enforce their rights within a reasonable time. It also encourages
creditors to exercise their rights diligently by collecting their debts
timeously and without undue delay. 38 By contrast, Ms Klein would
suffer substantial prejudice if compelled to plead to a defective
summons and inadequately particularised claim merely to prevent Mr
Newton’s claim from prescribing. In these circumstances, the interests
of justice favour the granting of condonation to Ms Klein , to the
extent required, and the setting aside of the impugned proceedings.
38 See J Saner Prescription in South African Law (1996-) (loose-leaf) at para 1.2; M Kelly-Louw and P N
Stoop ‘Prescription of debt in the consumer -credit industry ’ (2019) 22 PELJ 1 at 2; Murray & Roberts
Construction (Cape) (Pty) Ltd v Upington Municipality 1984 (1) SA 571 (A) 578F-H; KLD Residential CC
v Empire Earth Investments 17 (Pty) Ltd [2017] 3 All SA 739 (SCA) at para 13; and Road Accident Fund v
Mdeyide 2011 (2) SA 26 (CC) at para 2.
[92] It is most unfortunate that Mr Newton delayed for such an extended
period before seeking to enforce repayment of the alleged debt. The
law of prescription exists precisely to prevent debts from remaining
indefinitely suspended over a debtor, thereby promoting legal
certainty and finality in financial obligations. Creditors are required to
act timeously to enforce their rights, while debtors are obliged to meet
their obligations when properly called upon to do so before
prescription intervenes.
Costs
[93] As to costs, it is trite that the c ourt retains a discretion in awarding
costs, notwithstanding the general principle that costs follow the
result. In the present matter, I am not persuaded that either party is
deserving of a costs order in their favour. I am inclined to the view
that Ms Klein was aware of the alleged indebtedness, but there is little
to indicate that she made any meaningful effort to settle it over the
years. Conversely, Mr Newton failed to act timeously and thereafter
his attorneys attempted to circumvent the Rules governing service in
order to avert prescription. In these circumstances, the conduct of both
parties does not justify a costs order in favour of either. Accordingly,
each party is directed to pay their own costs.
Order
[94] The following order is made:
1. Condoning the late filing of this application.
2. That the Respondent’s/Plaintiff’s action application (the summons
and particulars of claim) be set aside in its entirety as an irregular
step in terms of Rule 30.
3. No cost order is made with each party to carry their own costs.
_____________________________
M LOUW
ACTING JUDGE OF THE HIGH COURT
Appearances
For applicant/defendant: Adv M Garces
Instructed by: Schoeman Law Inc, Cape Town
For respondent/plaintiff: Adv J K Felix
Instructed by: Frank Hollard & Associates, Cape Town.