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[2026] ZAGPJHC 741
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Fidelity Fire Solutions (Pty) Ltd v Fireblock CC (2025/073318) [2026] ZAGPJHC 741 (3 June 2026)
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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
Case
Number: 2025-073318
(1)
REPORTABLE: NO
(2)
OF INTEREST TO OTHER JUDGES: NO
(3)
REVISED: YES
3.06.2026
In the matter between:
FIDELITY
FIRE SOLUTIONS (PTY) LTD
Applicant
and
FIREBLOCK
CC
Respondent
JUDGMENT
CRUTCHFIELD J
[1]
The applicant, Fidelity Fire Solutions
(Pty) Ltd, seeks the upliftment of a bar in terms of rule 27 of the
uniform rules of court,
together with relief ancillary thereto. The
respondent, Fireblock CC, opposes the application and seeks the
dismissal of the application
together with costs.
[2]
An applicant must show good cause in order
to succeed in procuring the upliftment of a bar in terms of rule 27.
The requirements
of good cause include a reasonable explanation for
the delay, in this case the applicant’s delay in delivering the
plea,
a triable defence and that the applicant is
bona
fide
, meaning that the applicant
genuinely intends to proceed with the litigation and is not intent on
simply delaying the respondent
in its quest for a judgment.
[3]
A court is vested with a wide discretion in
respect of the upliftment of a bar.
[4]
The applicant is the defendant in the
action proceedings issued by the respondent
qua
plaintiff.
[5]
The respondent delivered the notice of bar
calling for delivery of the applicant’s plea on 11 July
2025. The applicant’s
plea ought to have been delivered on or
before 18 July 2025.
[6]
The respondent sells products used in the
extinguishing of fires. The applicant delivers private fire
solutions, including equipment.
The source of the litigation between
the applicant and the respondent lies in two distribution agreements
concluded between the
parties. The agreements afford the applicant
the right to distribute the fire extinguishing products of the
respondent through
Africa.
[7]
In terms of the agreements, the applicant
would distribute two products, lithium gel and agri powder, purposed
at extinguishing
fires caused by lithium-ion batteries. The
litigation arose from the applicant becoming aware of defects in the
respondent’s
products during late 2024, early 2025. Defects in
the respondent’s 2-litre fire extinguisher were confirmed by
the certification
manager of the company that performed the audit on
the respondent’s 2-litre fire extinguisher.
[8]
It emerged from investigations and
discussions undertaken by the applicant that the respondent’s
lithium gel product had a
microbial presence that made it unsafe and
allegedly unreliable, so the applicant contends. Furthermore, the
applicant alleges
that the lithium gel and agri powder were not able
to extinguish fires caused by lithium ion batteries.
[9]
As a result of the developing and evolving
factual matrix described briefly above, the applicant alleges that it
was unable to deliver
its plea timeously. Investigations were
undertaken during late 2024 and early 2025. Discussions with the
respondent and various
role players involved continued into May 2025.
The respondent disclosed during January/February 2025 that the
problems encountered
by the applicant in respect of the 2-litre fire
extinguishers might be replicated in the 9-litre fire extinguishers.
[10]
The parties agreed to terminate the
agreements on various terms, in circumstances where the applicant had
paid the respondent just
short of the full amount owing under the
agreements. The payment was approximately R100 000 short of the
full amount.
[11]
The applicant explains at length in the
founding papers, the delay in delivering its plea and the reasons for
that delay, including
that the applicant required expert evidence. An
expert report in respect of the defects in the respondent’s
products was
delivered on 10 July 2025, one day prior to
delivery of the respondent’s notice of bar upon the applicant.
[12]
The applicant, upon receipt of the notice
of bar, was aware that it would not be in a position to comply with
the bar and requested
the respondent to allow the applicant
additional time, which the respondent refused. Subsequently, however,
the applicant became
aware that it in fact needed even more time than
it had requested from the respondent.
[13]
It is not necessary for me to refer to the
content of the expert report received by the applicant on 10 July
2025, other than
to say that as a result thereof, the applicant
considered it necessary to obtain a further expert report in respect
of certain
issues that remained unresolved and were left unanswered
by the expert report received on 10 July 2025. Accordingly, the
applicant
required the further time referred to by me above.
[14]
The applicant, in the interim, prepared its
plea together with the counterclaim, and those pleadings, in draft
format, were included
in the applicant’s application to uplift
the bar.
[15]
The applicant submitted that the pleadings
can be delivered within a reasonably short period of time in the
event that I exercise
my discretion to uplift the bar.
[16]
The applicant, at this stage, does not need
to demonstrate a defence or a counterclaim that will succeed at
trial. The applicant
needs only to show a plea or a counterclaim, in
this case both, that are good in law and raise an issue or issues
that are triable
before a court in the future. The applicant, on the
draft pleadings before me, does indeed raise such triable issues in
respect
of its defence and counterclaim.
[17]
The applicant sets out the reasons for the
delay in delivering the plea, the investigations into the
respondent’s products
and the potential pecuniary liability and
the potential damages to be suffered by the applicant as a result of
the alleged defects
described above, in some detail.
[18]
There is no reasonable doubt on the papers
before me that the applicant is
bona
fide
in its desire to proceed with the
litigation and to recover its alleged damages, such as it is able to
prove before a court.
[19]
The respondent referred to various
procedural conduct on the part of the applicant, such as the
applicant delivering a rule 7
notice, a rule 35(12) notice
that resulted in a rule 30 application and the necessity for the
applicant to be compelled
to provide its heads of argument.
Furthermore, the respondent submitted that the applicant’s
ongoing use of the respondent’s
trademark indicated
mala
fides
on the part of the applicant such
as ought to prevent the applicant from obtaining the upliftment of
the bar. I am not persuaded
that the applicant was
mala
file
in its conduct described by the
respondent, and that this court’s discretion should be
exercised against the applicant pursuant
to such conduct described by
the respondent as being
mala fide
.
[20]
The interests of justice require that the
applicant be permitted an opportunity to ventilate its defence to the
respondent’s
particulars of claim together with its
counterclaim, before a court.
[21]
A significant and far-reaching injustice
would be caused to the applicant and to the administration of justice
as a whole, if I
were to refuse to uplift the bar, thus preventing
the applicant from ventilating its defence and prosecuting its
counterclaim,
and permitting the respondent to proceed to default
judgment against the applicant. The prejudice to the respondent, in
the event
that I allow the upliftment of the bar, is able to be
compensated by the costs order that I intend to make.
[22]
Such an outcome as would result from my
refusing the upliftment of the bar, in the face of the issues raised
by the applicant, would
constitute a violation of justice.
[23]
As to the costs of the application heard by
me, the applicant seeks an indulgence and should be ordered to pay
the costs of the
applicant’s application. The respondent
however should be ordered to pay the costs of the opposition to the
applicant’s
application.
[24]
In the circumstances, I grant the following
order:
1.
The notice of bar served by the respondent
on the applicant on 11 June 2025, is uplifted in terms of
rule 27.
2.
The applicant is ordered to deliver its
plea and counterclaim under case number 2025-073318 within 15
(fifteen) days of the delivery
of this judgment on 3 June 2026.
3.
The applicant is ordered to pay the costs
of the application and the respondent is ordered to pay the costs of
the opposition to
the application.
CRUTCHFIELD J
JUDGE OF THE HIGH COURT
JOHANNESBURG
For the
Applicant:
Adv HC Van Zyl instructed by Albert Jacobs Inc Attorneys.
For
the Respondent:
Adv Ogunrobi instructed by Beder- Friedland Inc Attorneys.
Date of the
hearing:
1 June 2026.
Date of the judgment:
3 June
2026.