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
GAUTENG DIVISION, PRETORIA
CASE NO: 119661/2023
In the matter between:
INFORMAT SOLUTIONS (PTY) LTD First Applicant
(Registration Number: 2015/103655/07)
GLEN LIFE PROPERTIES CLOSE CORPORATION Second Applicant
(Registration Number: 2004/047179/23)
DELBERG ATTORNEYS INC Third Applicant
(Registration Number: 1990/019077/21)
and
PK AND TS INVESTMENTS (PTY) LTD Respondent
(Registration Number: 2022/721427/07)
_________________________________________________________________________
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: NO
21 May 2026 SM MARITZ AJ
DATE SIGNATURE
2
JUDGMENT
_________________________________________________________________________
MARITZ AJ
A. INTRODUCTION
[1] This is an interlocutory application by Informat Solutions (Pty) Ltd ("the First
Applicant") and Glen Life Properties Close Corporation ("the Second Applicant") for
leave to amend their Plea to the Respondent's Particulars of Claim in terms of Rule
28(4) of the Uniform Rules of Court. The Respondent, PK and TS Investments (Pty)
Ltd, opposes the application. The Respondent raises two points in limine — non-
compliance with Rule 28(4) and lack of authority and personal knowledge of the
deponent to the First Applicant’s Founding Affidavit — and four substantive grounds
of opposition: withdrawal of admissions without proper justification; mala fides and
abuse of process; the amendment rendering the Plea and Counterclaim excipiable;
and irreparable prejudice.
[2] A condonation application was filed belatedly together with the Replying Affidavit on
18 September 2025, in respect of the two-day late filing of the Application for Leave
to Amend.
B. RELEVANT FACTUAL BACKGROUND
The Respondent's claim
[3] The Respondent issued summons on 15 November 2023 (Case No 119661/2023)
arising from an alleged sale of an agricultural property — Freehold Stand No: PTN 2
of Holding 133 Township, P […] P[…] AH, 5[… ] S[…] Road, P[…] P[…] , Midrand —
at a purchase price of R1 800 000.00. The Respondent pursues three claims: Claim
A for interest of R104 823.79; Claim B for R256 500.00 (being 14.25% of the
purchase price as a delay penalty under paragraph 13 of the Offer to Purchase);
and Claim C in the alternative for R204 000.00 loss of income, together with costs.
[4] The Respondent's case is founded upon an Offer to Purchase Agreement. It avers
that the agreement was originally concluded on 12 August 2022 and 20 August
2022 between the First Applicant (as seller) and Ms. Prudence Khumalo and Mr.
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Timothy Sibanda personally as purchasers. Because the property is classified as an
agricultural holding — which prevents more than one name appearing on the title
deed — the purchasers' personal names were subsequently replaced by the
Respondent company as purchaser. The Respondent contends this was done upon
instruction from, and through, the Second Applicant (Glen Life Properties CC), which
throughout the transaction operated under the " Glenlife Properties " letterhead and
which is alleged to have been the First Applicant's duly authorised agent.
[5] The Respondent avers that the First Applicant was at all material times aware of and
consented to this substitution: that all correspondence was channelled through the
Second Applicant; that the conveyancing attorneys (the Third Defendant, Delberg
Attorneys Inc) were instructed through the Second Applicant; and that the First
Applicant's director thereafter signed the transfer documents with full knowledge of
the purchaser's identity. The Respondent placed Annexures AA10 to AA29 before
the Court in support of this version, comprising the altered Offer to Purchase on the
Glenlife Properties letterhead (AA10), a chain of email correspondence spanning the
transaction (AA11– AA21), a consent document (AA22), further post -transaction
correspondence (AA23– AA28), and the transfer documents said to have been
signed by the First Applicant's director (AA29).
Earlier procedural history
[6] The Third Defendant filed its Plea on 11 January 2024. The Respondent filed its
Replication on 2 February 2024. On 6 August 2024 the Respondent withdrew its
action against the Third Defendant. An application for default judgment was brought
against the First and Second Applicants, and by order of Van der Westhuizen J
dated 14 February 2025 the matter was removed from the roll and the Applicants
were directed to file their Notice of Intention to Defendant and Plea and
Counterclaim, if any, within the stipulated time periods provided for in the order.
Counterclaim, if any, within the stipulated time periods provided for in the order.
[7] On 28 February 2025, the First and Second Applicants delivered their Notice of
Intention to Defend. A Notice of Bar was filed on 1 April 2025. The Applicants filed
their Plea and Counterclaim on 7 April 2025 and their Notice of Intention to Defend
was formally filed on 22 April 2025. In that Plea, the First and Second Applicants
admitted the existence and terms of the Offer to Purchase Agreement as annexed to
the Respondent's Particulars of Claim.
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[8] On 2 May 2025 the Respondent launched an Application for Summary Judgment.
The Applicants filed a Notice to Oppose on 9 June 2025. It was during preparation
to oppose the Summary Judgment Application that the First Applicant's director says
he first appreciated that the Offer to Purchase annexed to the Particulars of Claim
was not the agreement he had in fact concluded.
The amendment and procedural steps leading to this application
[9] On 4 July 2025 the First and Second Applicants served a Notice of Intention to
Amend their Plea in terms of Rule 28(1). The Respondent delivered its Rule 28(3)
objection on 18 July 2025. Rule 28(4) required the Applicants to lodge their
application for leave to amend within 10 court days, i.e. by 1 August 2025.
[10] On 1 August 2025 at 19h00 the Applicants served the Application for Leave to
Amend on the Respondent's attorneys. The application was, however, only filed with
the Court on 5 August 2025 — two court days late — and without a condonation
application. The Respondent filed its Notice of Intention to Oppose on 15 August
2025. The Respondent's Answering Affidavit was filed on 4 September 2025. On 18
September 2025 the Applicants filed their Replying Affidavit together with a belated
Condonation Application. The Respondent filed Heads of Argument on 15
December 2025 and the Applicants filed Heads of Argument on 17 March 2026. The
matter was enrolled for hearing on 11 May 2026.
What the Applicants seek to amend and why
[11] The Applicants seek to withdraw their admissions to the Offer to Purchase
Agreement annexed to the Particulars of Claim and to substitute a version that: (a)
denies the document annexed is the agreement actually concluded; (b) alleges the
purchaser's details were unilaterally altered without the First Applicant's knowledge
or written consent; and (c) avers that no valid deed of alienation complying with
section 2(1) of the Alienation of Land Act 68 of 1981 was ever concluded between
section 2(1) of the Alienation of Land Act 68 of 1981 was ever concluded between
the First Applicant and the Respondent.
[12] The explanation offered is that at the time the Plea was filed, the First Applicant was
under severe financial constraints that impaired its ability to consult
comprehensively with its attorneys and scrutinise the Respondent's annexures. The
admission was accordingly made without full appreciation of the document. The
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Founding Affidavit also mistakenly recorded the date of conclusion of the original
agreement as 2024 rather than 2022 — an error acknowledged as clerical.
[13] On the legal merits, the Applicants raise two substantive grounds. First, section 2(1)
of the Alienation of Land Act 68 of 1981 requires that no alienation of land shall be
of any force or effect unless it is contained in a deed of alienation signed by the
parties or by their agents acting on written authority. The Applicants aver the altered
agreement was never so signed and is accordingly void ab initio. Second, clauses
17.1 and 17.2 of the original Offer to Purchase contain a non-variation clause
providing that " no additions to or amendments of this Agreement shall be of any
force or effect unless reduced to writing and signed by or on behalf of the parties."
Relying on SA Sentrale Ko-op Graanmaatskappy Bpk v Shifren en Andere 1964 (4)
SA 760 (A), the Applicants contend that any variation not so signed is invalid.
[14] In the Replying Affidavit the First Applicant's director attached the CIPC disclosure
certificate confirming his status as sole director, relied on section 66(1) of the
Companies Act 71 of 2008 to establish authority, maintained his factual case, and —
significantly — disavowed that the Second Applicant was ever the First Applicant's
authorised agent. This last averment is a departure from the version in the existing
Plea and creates a conflict of interest between the two Applicants since they are
represented by the same attorneys.
C. RESPONDENT’S POINTS IN LIMINE
(a) Non-compliance with Rule 28(4): Rule 28(5) and Sasol v Penkin
[15] The Respondent submits that the two-day late filing of the Application for Leave to
Amend means the amendment lapsed under Rule 28(5) of the Uniform Rules and
must be treated as pro non scripto, requiring the Rule 28 process to be recommenced.
Reliance is placed on Sasol South Africa Ltd t/a Sasol Chemicals v Penkin 2024 (1)
Reliance is placed on Sasol South Africa Ltd t/a Sasol Chemicals v Penkin 2024 (1)
SA 272 (GJ) at paragraph 43. This submission is, with respect, founded on a
fundamental misreading both of Rule 28(5) and of that judgment.
[16] Rule 28(5) provides that if no objection as contemplated in Rule 28(4) is delivered
within the period referred to in Rule 28(2), every party who received notice of the
proposed amendment shall be deemed to have consented, and the amending party
may within 10 days after expiration of the Rule 28(2) period effect the amendment by
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delivering the relevant amended pages in terms of Rule 28(7). The text of Rule
28(5) is unambiguous: it operates exclusively in the no-objection scenario. It governs the
consequence of a party's failure to object — namely, deemed consent and the right
to file amended pages. It says nothing whatsoever about the consequence of a late
filing of a Rule 28(4) application for leave to amend in a contested matter where an
objection has been delivered. Once a Rule 28(3) objection is lodged, Rule 28(5) has no
further role to play. The procedural path is exclusively that of Rule 28(4).
[17] Sasol v Penkin does not assist the Respondent. In that case, the defendant
served a defective Notice of Intention to Amend. The plaintiff did not deliver a
Rule 28(3) objection — it instead gave a Rule 30(2)(b) notice of irregular step.
Because there was no Rule 28(3) objection, the position was governed by Rule
28(5): the defendant was required, in the no-objection scenario, to deliver amended
pages within the Rule 28(5) period. The defendant failed entirely to deliver any
amended pages. The court held at paragraph 43 that the amendment accordingly
lapsed — expressly noting that it " could not find any authority, one way or another,
on this issue" and was articulating what it regarded as long- standing practice. Three
features render Sasol v Penkin inapplicable here: first, the lapse arose from failure to
deliver amended pages in the no-objection scenario, not from a late Rule 28(4)
application; second, the court itself acknowledged the absence of any authority; third,
the procedural posture was wholly different — there was no Rule 28(3) objection at
all. The Respondent has misread a decision confined to the Rule 28(5) no-objection
scenario and sought to transplant it into the wholly distinct Rule 28(4) contested
scenario. That submission is rejected.
(b) Condonation
[18] Although Rule 28(5) does not cause the amendment to lapse, the Applicants' late
[18] Although Rule 28(5) does not cause the amendment to lapse, the Applicants' late
filing of the Rule 28(4) application by two court days is a non-compliance with the Rules
requiring the Court's indulgence in terms of Rule 27. The applicable approach
requires the Court to consider holistically: the nature and degree of non-compliance;
the explanation therefor; any prejudice caused to the Respondent; and the applicant's
prospects of success on the main application. The overriding consideration is the
interests of justice: Matjhabeng Local Municipality v Eskom Holdings Limited and
Others 2018 (1) SA 1 (CC) at paragraph 72; State Attorney v Notshe (2022/00966)
[2025] ZAGPJHC 206 at paragraph 4; Dengetenge Holdings (Pty) Ltd v Southern
Sphere Mining and Development Company Ltd [2013] ZACC 48; Ferris v FirstRand
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Bank Ltd 2014 (3) SA 39 (CC); Nair v Telkom SOC Ltd & Others (JR59/2020) [2021]
ZALCJHB 449 at paragraph 11.
[19] The degree of non-compliance is two court days — a minimal delay. The Application
for Leave to Amend was served on the Respondent's attorneys on the due date, 1
August 2025, at 19h00. The Respondent was accordingly in actual possession of the
papers by the due date; the only failure was an administrative omission in filing with
the Court two days later. That omission was not wilful or reckless — it is explained in
the condonation application as an inadvertent administrative oversight in
distinguishing between service and filing. The Respondent has not demonstrated any
specific prejudice flowing from the two-day filing delay itself, as distinct from its
substantive objections to the amendment. As the Constitutional Court confirmed in
Matjhabeng supra at paragraph 72, where no prejudice has been demonstrated, the
interests of justice demand that condonation be granted, particularly where the degree of
non-compliance is minimal. Taking these factors holistically, condonation is
granted. The first point in limine is dismissed.
(c) Authority and personal knowledge of the deponent
[20] The Respondent challenges the deponent's authority to institute the
proceedings on behalf of the First Applicant and his personal knowledge of facts
relating to the Second Applicant, relying on Delico Investments 10 (Pty) Ltd v City
of Johannesburg Metropolitan Municipality (116276/2024) (Theron AJ,
unreported, 22 October 2025); Diliculo Properties (Pty) Ltd v City of
Johannesburg & Others (2023-010531) (Putter AJ, unreported, 15 May 2025); and
FirstRand Bank Ltd v Kruger 2017 (1) SA 533 (GJ).
[21] This point fails on two independent and cumulative grounds. First, on authority: the
CIPC disclosure certificate attached to the Replying Affidavit confirms the deponent
is the sole director of the First Applicant. In terms of section 66(1) of the Companies
is the sole director of the First Applicant. In terms of section 66(1) of the Companies
Act 71 of 2008, where a company has a sole director, that director constitutes the
board and is vested with authority to exercise all the powers and perform all the functions of
the company. No additional resolution or external authorisation i s required. Second,
and more fundamentally, the Respondent employed the wrong procedural vehicle.
The proper mechanism to challenge a litigant's authority to institute motion proceedings is
Uniform Rule 7(1), which requires the respondent to deliver a notice calling on the
other party to furnish proof of authority. The Respondent did not invoke Rule 7. It
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instead sought to raise the objection as a point in limine in its Answering Affidavit.
This is impermissible: Ganes and Another v Telecom Namibia Ltd 2004 (3) SA 615
(SCA) at paragraph 19; Unlawful Occupiers of the School Site v City of
Johannesburg 2005 (4) SA 199 (SCA) at paragraph 16. Once Rule 7(1) is
available, a party may not substitute textual dissection of the founding affidavit as an
alternative. On personal knowledge: the Respondent has not identified any specific
factual averment concerning the Second Applicant that was inadmissible or outside
the deponent's knowledge; and in Ganes supra at paragraph 19 the SCA confirmed
that a deponent to an affidavit in motion proceedings need not be separately
authorised by the relevant party to depose to it. The second point in limine is
dismissed.
D. MERITS
What the Court is required to do at the stage of an application for leave to
amend
[22] Before turning to the specific grounds of opposition, it is necessary to identify
with precision what the Court is and is not required to do when considering an
application for leave to amend. The importance of this is heightened in the
present matter because much of the Respondent's opposition is, at its core, a
submission that the Applicants' version is factually false and that the
documentary record proves it. The Court must resist the temptation to determine
those factual disputes at this stage.
[23] The Court hearing an application for leave to amend exercises a broad discretion,
which must be exercised judicially upon a consideration of all the relevant
circumstances: Brocsand (Pty) Ltd v Tip Trans Resources (Pty) Ltd 2021 (5) SA 457
(SCA) at paragraph 15; Embling and Another v Two Oceans Aquarium CC 2000 (3)
SA 691 (C) at 694H. The general approach was stated by Wessels J in Whittaker v
Roos; Morent v Roos (TPD) , as cited with approval in Adel Fresh Fruit CC v
Producer Ally (Pty) Ltd (case no. 4111/2014, ECGHC):
Producer Ally (Pty) Ltd (case no. 4111/2014, ECGHC):
"This court has the greatest latitude in granting amendments, and it is
very necessary that it should have. The object of the court is to do
justice between the parties. It is not a game that we are playing, in
which, if some mistake is made, the forfeit is claimed. We are here for
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the purpose of seeing that we have a true account of what actually took
place, and we are not going to give a decision upon what we know to be
wrong facts ... [T]he court will not look to technicalities, but we will see
what the real position is between the parties."
[24] The practical principle distilled from the authorities is this: an amendment will
be allowed unless it is (a) mala fide, or (b) will cause the other party such
injustice as cannot be compensated by a costs order: Moolman v Estate
Moolman 1927 CPD 27 at 29; Villa Crop Protection (Pty) Ltd v Bayer
Intellectual Property GmbH 2024 (1) SA 331 (CC) at paragraphs 64– 67;
Media 24 (Pty) Ltd v Nhleko & Another (109/22) [2023] ZASCA 77 at
paragraph 16. Where the proposed amendment involves the withdrawal of
an admission, a proper and sufficient explanation for the admission and for
the intention to withdraw it is additionally required: Bellairs v Hodnett and
Another 1978 (1) SA 1109 (A) at 1150F –H; President-
Versekeringsmaatskappy Bpk v Moodley 1964 (4) SA 109 (T) at 110H–111A;
JR Janisch (Pty) Ltd v WM Spilhaus & Co (WP) (Pty) Ltd 1992 (1) SA 167
(C) at 170. Prejudice to the other party must also be weighed: Amond v
South African Mutual Fire and General Insurance Co Ltd 1971 (2) SA 611
(N) at 614H per Leon J.
[25] Critically, the court at the amendment stage does not adjudicate the factual
dispute between the parties. It does not determine which version is more
probable or who will succeed at trial. The enquiry is not: " does the evidence
show that the Applicants' version is true?" The enquiry is: " have the
Applicants put up a version which, if true, would constitute a triable defence,
have they sufficiently explained the admissions they seek to withdraw, and is
there any reason in law why the amendment should be refused?" This
distinction matters enormously in the present case. Much of what the
Respondent argues in opposition amounts to a submission that it will win at
Respondent argues in opposition amounts to a submission that it will win at
trial — a submission which, however well founded it may be, does not,
without more, constitute grounds for refusing an amendment. The
appropriate forum for resolving disputes about whether the First Applicant
consented to the substitution of the purchaser, and whether AA22 and AA29
establish that consent, is a trial at which oral evidence is led and witnesses
are cross-examined.
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Withdrawal of admissions: the legal requirements and their application
[26] In their Plea of 7 April 2025, the Applicants admitted the existence and terms of the
Offer to Purchase Agreement as annexed to the Respondent's Particulars of Claim.
They now seek to withdraw those admissions. The applicable standard, derived
from Bellairs v Hodnett and the companion authorities, requires three things: (i) the
admission must have been made in error — through inadvertence, mistake, or
inadequate appreciation of the document at the time of pleading; (ii) the explanation
for the error must be satisfactory and sufficient to establish the bona fides of the
withdrawal: President-Versekeringsmaatskappy Bpk v Moodley supra at 110H ; and
(iii) the withdrawal must not cause the opposing party prejudice incapable of being
cured by a costs order: Amond supra at 614H. In Bellairs v Hodnett itself, the
Appellate Division refused the withdrawal because " the pleadings show a clear
appreciation of the separate identities " — meaning the admission was not an error
at all but an informed, considered pleading position.
[27] The Respondent's Answering Affidavit builds a detailed factual edifice, supported by
Annexures AA10 to AA29, contending that the admission was made with full
appreciation and that the version now sought to be introduced is a fabrication. In
summary: Annexure AA10 is the altered Offer to Purchase on the Glenlife Properties
letterhead. Annexures AA11 to AA21 are a chain of emails which the Respondent
says demonstrate that the Second Applicant — as agent for the First Applicant —
conducted all transaction correspondence, that the First Applicant was informed of
the need to substitute the purchaser's identity due to the agricultural holding
registration constraint, and that the conveyancers were instructed accordingly.
Annexure AA22 is a document described as evidencing the First Applicant's express
consent to the substitution of the purchaser. Annexures AA23 to AA28 are further
consent to the substitution of the purchaser. Annexures AA23 to AA28 are further
post-transaction correspondence. Annexure AA29 is described as the transfer
documents subsequently signed by the First Applicant's director. The Respondent
submits that the director signed documents naming the Respondent company as
purchaser knowing full well what he was signing — a submission that, if correct,
would render the "error" explanation wholly implausible.
[28] The Respondent invokes Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd
1984 (3) SA 623 (A) at 634E –635D, submitting that its version of the facts, placed
under oath and not adequately disputed by the Applicants in the Replying Affidavit,
must prevail. There is force in this submission. The Applicants' Replying Affidavit
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does not challenge the authenticity of the correspondence (AA11 to AA21). It does
not identify precisely which documents it disputes or explain specifically why AA22
does not establish consent. It does not deny that transfer documents were signed.
Its answer — that the director was processing multiple concurrent transfers and
focused on the property description rather than the purchaser's identity — is general
and unparticularised.
[29] That evidential insufficiency is a genuine concern that properly weighs against the
Applicants. However, as noted above, the enquiry at the amendment stage is not
who will win at trial. The Plascon-Evans principle governs the determination of
factual disputes in motion proceedings on the papers — it does not mean that a
party whose version is less convincing on the papers is precluded from seeking an
amendment to ventilate that version at trial, unless the version is so clearly
untenable as to be incredible or fraudulent on its face. The question is whether the
explanation is sufficient to establish bona fides at the amendment threshold, not
whether it will succeed at trial.
[30] The explanation offered — that the Plea was filed under financial pressure and
without adequate scrutiny of the annexures — is a recognised category of
inadvertence in pleading. Unlike in Bellairs v Hodnett, where the pleadings
themselves showed a clear appreciation of the very distinction being denied, the
Applicants here say they did not focus on the document at all. That is a different kind
of alleged error. Whether it is ultimately credible is for a trial court to assess after
cross-examination.
[31] That said, this Court does not shut its eyes to the evidentiary record. The
Respondent's case on the papers is strong. Annexure AA22 — the alleged express
consent document — and Annexure AA29 — the signed transfer documents —
represent the most significant hurdles the Applicants must overcome at trial. The
represent the most significant hurdles the Applicants must overcome at trial. The
director's explanation for signing AA29 without appreciating the identity of the
purchaser will be carefully tested. The Respondent is well -placed to demonstrate at
trial that the admission was made with knowledge. But the question of whether it will
succeed in doing so is a trial question. On the papers as they stand, the explanation
is not so inherently implausible or so clearly a fabrication that it must be refused at
the amendment stage. The repeated date errors (recording 2024 instead of 2022)
are troubling, but on the standard confirmed in Standard Bank of South Africa Ltd v
Phalane and Another [2022] ZAGPJHC 69 at paragraph 19, obvious errors that
12
cause no specific prejudice do not prevent adjudication on true issues. Whether they
reflect fabrication is again for trial. The withdrawal is accordingly permitted, subject
to the overall outcome of the application.
Whether the amendment raises a triable issue
[32] The Applicants' proposed amended Plea must raise a triable defence — one that is
legally viable if the facts are proved: Brocsand supra at paragraph 15; IPC Plumbing
SA (Pty) Ltd v Azrapart (Pty) Ltd [2025] ZAGPPHC 463 at paragraph 10. The two
defences raised satisfy this requirement.
[33] First: section 2(1) of the Alienation of Land Act 68 of 1981 is peremptory. If the
altered Offer to Purchase was not signed by the First Applicant or by an agent acting
under written authority, it is void ab initio. If proved, this defence is decisive.
[34] Second: the Shifren non-variation clause (clauses 17.1 and 17.2 of the original Offer
to Purchase) renders any amendment not signed by the parties invalid. If the First
Applicant never signed the altered document, the substitution of the purchaser is of
no force or effect. This too, if proved, defeats the Respondent's cause of action in its
entirety.
[35] Whether these defences will succeed depends on facts — the content and
circumstances of AA22 and AA29 in particular — that must be determined at trial.
Both defences are legally coherent and potentially decisive. They are plainly triable
issues.
Mala fides and abuse of process
[36] The Respondent submits that the amendment is not bona fide but is a tactical
device to avoid the Summary Judgment Application. Mala fides in the context of an
amendment application requires that the Court be satisfied that the amendment is
advanced for a purpose extraneous to the proper ventilation of a genuine dispute:
Beinash v Wixley 1997 (3) SA 721 (SCA) at 734. Timing alone does not establish
bad faith. The legal defences raised — the Alienation of Land Act and the Shifren
bad faith. The legal defences raised — the Alienation of Land Act and the Shifren
principle — are genuine and substantive. The fact that the documentary record is
unfavourable to the Applicants does not convert their pursuit of an amendment into
a mala fide act. The Respondent's submission amounts to saying that because it
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has a strong case, the Applicants should not be allowed to test it at trial. That is not
the law. This ground fails.
Whether the amendment renders the pleadings excipiable
[37] The Respondent relies on R M van de Ghinste & Co (Pty) Ltd v Van de Ghinste
1980 (1) SA 250 (C) at 258H –259A for the proposition that an amendment which
would render a pleading excipiable should not be allowed. This is an accepted
principle of law. In De Klerk v ABSA Bank Ltd , cited with approval in M M v H P
(5182/2022P) [2024] ZAKZPHC 8 at paragraph 8, Van Dijkhorst J stated:
"An amendment which would render a pleading excipiable should not be
allowed. Whether a pleading would or would not become excipiable is a
matter of law which should be decided by the Court hearing the
application for amendment. It would be incorrect, in my view, to hold
that it is arguable that the amendment would not render the pleading
excipiable, allow it, and send the parties away to prepare for another
battle on exception on the same point."
[38] The court must therefore decide the excipiability question on the papers, accepting
as correct the allegations in the proposed amended Plea: IPC Plumbing supra at
paragraph 10; Lizinex (Pty) Ltd v FPC Solutions (Pty) Ltd [2023] ZAGPJHC 1261 at
paragraph 31. The onus is on the Respondent to establish that the amended
pleading would be excipiable on every reasonable interpretation.
[39] The Respondent raises four excipiability grounds. First: the amended Plea denies
the Offer to Purchase while the Counterclaim simultaneously relies on the same
transaction. The Respondent invokes the approbation-reprobation doctrine — a
party may not blow hot and cold: Cross v Ferreira 1951 (2) SA 435 (C). The
Applicants respond that a Counterclaim is a separate and independent pleading that
cannot render a Plea excipiable: S v Kolea [2010] ZAFSHC 171 at paragraph 21.
This is legally correct. Excipiabi lity of the Plea is assessed on the Plea itself. The
This is legally correct. Excipiabi lity of the Plea is assessed on the Plea itself. The
contradiction between the Plea and the Counterclaim may create practical difficulties
for the Applicants at trial and may require separate amendment of the Counterclaim,
but it does not render the Plea itself excipiable. Second: the interchangeable
references to "Applicant" and "Applicants" are said to render the pleading vague and
embarrassing. The standard for vagueness and embarrassment requires the
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pleading to be so unclear that the opposing party cannot identify the case it must
meet and that this causes real prejudice: Ferris v Naledi Local Municipality [2022]
ZANWHC 55 at paragraph 12. The Respondent has not identified specific
paragraphs and demonstrated that the amended Plea is excipiable on every
reasonable interpretation on this ground. The defect, if it exists, is correctable in the
drafting. Third: the First Applicant's disavowal of the Second Applicant's agency
creates an internal contradiction and a conflict of interest. This is a genuine concern
of real gravity — the two Applicants now appear to occupy antagonistic positions,
and the Applicants' attorneys must consider urgently whether they can continue to
act for both clients without breaching their professional obligations. However, this
concern does not, on the present papers, establish that the amended Plea itself is
excipiable on every reasonable interpretation. Fourth: the amended Plea raises
triable issues, as demonstrated above, and is not excipiable on the ground of failure
to disclose a defence.
[40] The Respondent has not discharged the onus of establishing excipiability on any of
the four grounds advanced. However, given the very real tensions created by the
disavowal of agency and the inconsistency between the Plea and the Counterclaim,
the Applicants are directed to file the amended Plea in a form that resolves the
interchangeable reference problem, and to align or separately amend the
Counterclaim within 15 court days of this order. The Respondent retains the full right
to except to any pleading that remains defective.
Prejudice
[41] The loss of the benefit of an admission does not, without more, constitute irreparable
prejudice justifying the refusal of an amendment. If it did, no withdrawal of an
admission could ever be allowed. Specific, demonstrable prejudice beyond the loss of
that benefit is required: Media 24 supra at paragraph 16. The Respondent has not
that benefit is required: Media 24 supra at paragraph 16. The Respondent has not
identified such specific prejudice on the papers. It retains all its documentary
evidence — Annexures AA10 to AA29 — its version under oath in the Answering
Affidavit, and its right to challenge the Applicants' version fully at trial. Conversely,
refusing the amendment would compel a trial on facts that may be incorrect and on
admissions that may have been made inadvertently. The interests of justice require the
real dispute to be ventilated at trial.
E. CONCULSION
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[42] Both points in limine are dismissed. The Respondent's reliance on Rule 28(5) and
Sasol v Penkin is misconceived: Rule 28(5) applies only in the no-objection scenario
and has no bearing on the consequences of a late Rule 28(4) application.
Condonation is granted: the delay is two court days, the Respondent was in possession of
the papers on the due date, and no prejudice from the delay itself has been
demonstrated. The authority point fails because the deponent is the sole director of
the First Applicant and because the Respondent employed the wrong procedural
mechanism.
[43] On the merits: the Applicants have provided a sufficient — though far from
compelling — explanation for the admissions and the proposed withdrawal
thereof, meeting the threshold established by Bellairs v Hodnett and the companion
authorities. The proposed amendment raises genuine triable issues of potentially
decisive legal significance under the Alienation of Land Act 68 of 1981 and the
Shifren principle. The amendment is not mala fide. The excipiability objections, while
raising real concerns — particularly around the agency disavowal and the Plea/Counterclaim
tension — are not established with sufficient particularity to justify refusal at this
stage. No irreparable prejudice has been demonstrated.
[44] The grant of this application does not mean the Applicants will succeed at trial. The
Respondent's documentary case — and in particular Annexures AA22 and
AA29 — presents formidable evidentiary challenges that the Applicants' director will
need to meet under cross -examination. The withdrawal of the admissions is
permitted not because the Court has found the Applicants' version credible, but
because it is not so clearly untenable as to be incapable of trial ventilation, and
because the law requires that disputes of this nature be resolved on their true merits
rather than on procedural admissions made under circumstances of financial pressure.
rather than on procedural admissions made under circumstances of financial pressure.
[45] The Applicants' attorneys are placed on notice that: (a) the potential conflict of
interest arising from the First Applicant's disavowal of the Second Applicant's
agency must be addressed with both clients as a matter of urgency; (b) the
amended Plea must be drafted without the interchangeable vague references
complained of by the Respondent; and (c) the Counterclaim must be aligned
with the amended Plea or separately amended within the period specified in the
order below.
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F. COSTS
[46] Costs require careful consideration. The first point in limine was founded on a
demonstrably erroneous reading of Rule 28(5) — a sub-rule whose plain text does
not support the proposition advanced — and on an inapposite invocation of Sasol v
Penkin. That was not a tenable argument and should not have been pressed. The
second point in limine was procedurally incompetent for failure to invoke Rule 7(1).
Those points in limine should not have been taken in the form they were. On the
merits, however, the Respondent's opposition was not unreasonable: the factual
grounds raised — particularly the strength of Annexures AA10 to AA29 — are
legitimate and well -founded concerns that warranted a contested hearing. Further,
the Applicants' own application was factually defective in material respects: the
Founding Affidavit contained repeated and significant date errors; the Replying
Affidavit introduced a position (disavowal of agency) that contradicts the existing
Plea and creates a conflict of interest; and the Applicants' traversal of the
Respondent's detailed documentary record was inadequate. The application was
therefore not brought without deficiency. In these circumstances, where the
Respondent's procedural points were ill -conceived but its substantive concerns had
merit, and where the Applicants succeeded but with a factually deficient application,
justice is best served by directing each party to pay its own costs.
G. ORDER
The following order is made:
1. Condonation for the late filing of the Application for Leave to Amend is granted.
2. Both points in limine raised by the Respondent are dismissed.
3. The Application for Leave to Amend the Plea is granted.
4. The Applicants are directed, within fifteen (15) court days of this order, to deliver the
amended Plea in a form that resolves the interchangeable reference defects
identified in the Respondent's opposition.
identified in the Respondent's opposition.
5. The Applicants are further directed, within the same fifteen (15) court day period, to
either align the Counterclaim with the amended Plea or to separately amend the
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Counterclaim, failing which the Respondent shall be at liberty to take such steps as
it may be advised, including delivering an exception.
6. The Applicants' attorneys are directed to consider urgently, in consultation with both
Applicants, whether a conflict of interest prevents them from continuing to act for
both the First and Second Applicants given the positions adopted in the Replying
Affidavit, and to take any steps required by their professional obligations.
7. Each party is ordered to pay its own costs of the application, including the costs of
the condonation application.
BY ORDER
SM MARITZ AJ
ACTING JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
Appearances on behalf of parties:
Attorneys for Applicants: Maliseha Attorneys
Counsel for Applicants: Adv Mxolisi Nene
Attorneys for Respondent: Mudenda Inc Attorneys
Counsel for Respondent: Adv John Mouton
Date of Hearing: 11 May 2026
Date of Judgment: 21 May 2026