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Introduction
[1] This is a special interlocutory application brought by the applicant, Mr Maqhawe
Mthombeni, against the respondents, Sithole & Associates Inc Attorneys and Mr
Edward Sithole. The applicant seeks an order compelling the respondents to sign
a pre-trial minute of a pre-trial conference held on 5 April 2024.
[2] The application is brought in terms of paragraph 27 of the Consolidated Practice
Directive 1 of 2024 (“Directive”), as amended on 12 June 2024.
[3] The relief sought is twofold. First, the applicant requests that the respondents be
ordered to sign the pre-trial minute dated 9 April 2024 within three days of service
of this Court’s order. Second, should the respondents fail to comply with such an
order, the applicant seeks leave to approach this Court on the same papers,
supplemented where necessary, for an order to strike out their defence in the main
action.
[4] The respondents oppose this application. Their primary contention is that the pre-
trial minute does not accurately reflect the consensus reached during the pre -trial
conference and that they cannot be compelled to sign a document that contains a
disputed proposition on a material issue. The respondents further argue that the
applicant’s approach constitutes a misuse of the Special Interlocutory Court
(“SIC”) process and that the issue in dispute should properly be ventilated at trial.
Factual background
[5] The applicant, a practicing advocate, instituted action against the respondents on
29 June 2022, claiming an amount of R570 500.00 for professional services
rendered at the instance and request of the respondents. The claim is based on
16 invoices issued for work performed in various matters between 2019 and 2021.
The applicant pleads that his fees constitute a disbursement in the business and
practice of the respondents, and that he is entitled to look to them for payment.
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[6] The respondents filed a plea on 25 October 2022. In their plea, the respondents
admitted certain paragraphs but raised a special plea of prescription and defended
the merits on the basis that payment of the applicant’s fees was conditional upon
the successful finalisation of matters and the taxation of bills of costs. Critically,
at paragraph 24 of the plea, the respondents admitted the following: “[t]he contents
of this paragraph are admitted ” – this being a reference to paragraph 26 of the
amended particulars of claim, which states that the applicant’s fees constitute a
disbursement in the business and practice of the respondents, and that the applicant
is entitled to look to them for payment.
[7] The pleadings closed, and discovery was completed by both parties. On 5 April
2024, a pre -trial conference was held via Microsoft Teams. The applicant’s
erstwhile attorney, Mr Thobane Magubane, and the respondents’ representative,
Ms Nontokozo Mndebele, attended the pre-trial conference . The applicant also
joined the pre-trial conference , albeit about five minutes late, to provide
instructions.
[8] Prior to the pre-trial conference, Mr Magubane prepared a pre-trial agenda, which
was erroneously labelled as “Pre-Trial Minutes”. The agenda contained sections
for common cause issues, issues in dispute, and the standard Rule 37(6)(a -k)
questions. At the conclusion of the pre -trial conference, it was agreed that Mr
Magubane would finalise the minutes, sign them, and send them to the
respondents’ attorney for signature.
[9] Mr Magubane prepared the final pre -trial minute and sent it to Ms Mndebele on
6 April 2024. However, Ms Mndebele took issue with a particular paragraph listed
under common cause issues. This paragraph, which appeared as paragraph 2.7 in
the final minute, read: “[t]hat the Plaintiff’s fees constitute a disbursement in the
business and practice of the Defendants and the obligation to pay him rests with
business and practice of the Defendants and the obligation to pay him rests with
them.” Ms Mndebele crossed out the paragraph with a red pen, refused to sign the
minute, and requested that the paragraph be removed from the list of common
cause issues.
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[10] The applicant, through his legal representatives, took the position that the
respondents could not unilaterally resile from an agreement reached at the pre-trial
conference. The applicant also pointed out that the proposition in question was
admitted in the respondents’ plea at paragraph 24 and therefore constituted a
common cause issue.
[11] The respondents, on the other hand, argued that no consensus had been reached
on this issue during the pre -trial conference. They contended that Ms Mndebele
had expressly disputed the proposition and had indicated that she would not sign
the minute unless it wa s removed from the list of common cause issues. The
respondents further explained that the admission in the plea was the result of an
administrative and drafting error, and they filed a notice of intention to amend the
plea on 19 February 2026 to correct the error. The applicant objected to the
proposed amendment on 23 February 2026.
[12] On 28 May 2024, the applicant launched the present application to compel the
Respondents to sign the pre-trial minute. The applicant’s replying affidavit in this
application was served three days out of time, on 10 July 2024. The respondents
filed a Rule 30 notice of an irregular step on the same day, taking issue with the
late filing. The applicant subsequently brought a condonation application, which
was granted by S van Nieuwenhuizen AJ on 29 January 2026, with costs reserved.
The Court granted condonation for the late filing of the replying affidavit. The
present application to compel then proceeded to a hearing before me on 02 June
2026.
The issues
[13] The following issues arise for determination in this application:
13.1. Whether the respondents can be compelled to sign the pre -trial minute in terms
of paragraph 27 of the Directive, read with Rule 37 of the Uniform Rules of
Court.
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13.2. Whether the issue in dispute (whether the applicant’s fees constitute a
disbursement payable by the respondents) is properly a common cause issue or
a disputed issue that must be referred for trial.
13.3. Whether the respondents’ notice of intention to amend the plea has any bearing
on the application to compel.
13.4. Whether the applicant is entitled to the costs of the condonation application,
which were reserved by S Van Nieuwenhuizen AJ.
13.5. Whether the applicant is entitled to a punitive costs order on an attorney -and-
client scale.
[14] However, for convenience, I will not deal separately with each issue for
determination. In my approach, I will jointly deal with all the issues for
determination as it appears in this judgment.
The legal principles
[15] The purpose of a pre-trial conference is regulated by Rule 37. The rule is designed
to narrow the issues in dispute, obtain admissions where possible, promote
settlement, and curtail the duration of trials. Rule 37(4) requires that the parties
attempt to reach agreement on all matters that can be agreed upon, including the
issues that are in dispute and those that are common cause.
[16] The S IC was established by the Directive to address procedural delinquency,
including a failure to sign a pre -trial minute promptly. Paragraph 27.13.4 of the
Directive specifically identifies a failure to sign a Rule 37 minute as a type of
delinquency that the SIC shall deal with.
[17] However, the SIC is not intended to be used to compel substantive admissions on
disputed issues. Paragraph 27 of the Directive is concerned with procedural
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compliance, not with determining the merits of a dispute. As the respondents
correctly argued, a pre-trial minute merely records agreements reached during the
pre-trial conference. It cannot be used to create an admission where none exists.
[18] The leading authority on this issue is Fila-Matix1 wherein the Supreme Court of
Appeal held that to allow a party, without special circumstances, to resile from an
agreement deliberately reached at a pre -trial conference would negate the object
of Rule 37, which is to limit issues and curtail the scope of litigatio n.2 The court
emphasised that agreements reached by the parties at pre -trial conference are
binding on the parties, and a party cannot unilaterally withdraw from such an
agreement.3
[19] However, the Fila-Matix principle applies only where the parties have deliberately
reached an agreement during the pre -trial conference. It does not apply where
there is no consensus on a particular issue during the pre-trial conference. A party
cannot be compelled to agree to a proposition that it disputes, and the proper
course where there is no agreement is to record the issue as being in dispute and
refer it for trial.
[20] In SA Breweries (Pty) Ltd v Louw4 it was held:
“The relationship between the pleadings and the pretrial conference minute has been
the subject of several judicial pronouncements. In short, a minute of this sort is an
agreement from which one cannot unilaterally resile. Also, a pleading binds the
pleader, subject only to the allowing of an amendment, either by agreement with the
adversary, or with the leave of the court. The case pleaded cannot be changed or
expanded by the terms of a minute; if it does, it is necessary that that change go hand
in hand with a necessary amendment. The chief objective of the pretrial conference is
to agree on limiting the issues that go to trial. Properly applied, a typical minute – cum
1 Fila-Matix (Pty) Ltd v Freudenberg and Others 1998 (1) SA 606 (SCA).
1 Fila-Matix (Pty) Ltd v Freudenberg and Others 1998 (1) SA 606 (SCA).
2 See also Price NO v Allied-JBS Building Society 1980 (3) SA874 (A) 882D-H).
3 See also (Edms) Bpk v Santam Verseteringsmaatstappy Bpk 1985 (1) SA399 (A) 415B -D; Chemfos Ltd v
Plaasfosfaat (Pty) Ltd 1985 (3) SA 106 (A) 114I-115B).
4 (2018) 39 ILJ 189 (LAC).
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– agreement will shrink the scope of the issues to be advanced by the litigants. This
means, axiomatically, that a litigant cannot fall back on the broader terms of the
pleadings to evade the narrowing effect of the terms of a minute. A minute, quite
properly, may contradict the pleadings, by, for example, the giving of an admission
which replaces an earlier denial. When, such as in the typical retrenchment case, there
are a potential plethora of facts, issues and sub -issues, by the time the pretrial
conference is convened, counsel for the respective litigants have to make choices about
the ground upon which they want to contest the case. There is no room for any sleight
of hand, or clever nuanced or contorted interpretations of the terms of the minute or of
the pleadings to sneak back in what has been excluded by the terms of a minute . The
trimmed down issues alone may be legitimately advanced. Necessarily, therefore, the
strategic choices made in a pretrial conference need to be carefully thought through,
seriously made, and scrupulously adhered to. It is not open to a court to undo the laces
of the straitjacket into which the litigants have confined themselves. ”5 (My emphasis
and underlining)
Application of the legal principles and analysis of this case
[21] The central question in this application is whether the respondents can be
compelled to sign a pre -trial minute that contains a proposition that they dispute.
I find that they cannot. A party cannot be compelled to sign a pre-trial minute that
does not accurately reflect the consensus reached at the pre-trial conference. This
is so because a pre-trial minute is a record of agreement between the parties, and
not a document that can be unilaterally imposed by one party on another.
[22] The respondents have consistently maintained that no agreement was reached on
paragraph 2.7 of the pre-trial minute. Ms Mndebele crossed out the paragraph with
paragraph 2.7 of the pre-trial minute. Ms Mndebele crossed out the paragraph with
a red pen, refused to sign the minute, and requested that the paragraph be removed
from the list of c ommon cause issues. This demonstrates that there was no
consensus on this issue. The applicant cannot rely on Fila-Matix because there
5 Id at para 8.
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was no agreement to resile from. Instead, the respondents have consistently
objected to the inclusion of this proposition in the common cause section.
[23] Furthermore, the issue in dispute is a material one. The question of whether the
applicant’s fees constitute a disbursement payable immediately by the
respondents, or whether payment was conditional upon the successful finalisation
of matters and the taxation of bills of costs, lies at the heart of the dispute between
the parties. This is not a neutral factual issue but a legal conclusion that goes to
the core of the claim. It is precisely the kind of issue that must be ventilated at
trial, not determined in an interlocutory application.
[24] Most importantly, the respondents’ alleged mistaken admission must be read in
context with some of the paragraphs of the respondents’ plea wherein the
respondents pleaded as follows:
“5.3.1. The 1st Defendant would brief the Plaintiff from time to time in respect of
matters to which the 1st Defendant has entered into contingency fee agreements with
its clients;
5.3.2. The 1st Defendant will only settle the invoices of the Plaintiff upon successful
("a cost order granted in the favour of the 1st Defendant's clients") finalisation of each
matter;
5.3.3. Once the 1st Defendant has received a cost order, it would tax the bill;
5.3.4. Once the bill was taxed, and the opposition has settled the costs, the 1st
Defendant would then settle the Plaintiff's invoice as taxed by the taxing master;
5.3.5. In the event that the court rules in favour of the opposition ("unsuccessful
claims") then the Plaintiff shall have no claim against the Defendants.”
[25] From the reading of paragraphs 5.3.1 to 5.3.5 of the respondents’ plea, it cannot
be concluded that the respondents are disingenuous in their refusal to sign the
minutes of the pre-trial conference.
[26] I find that the applicant’s reliance on the fact that the issue is admitted in the plea
[26] I find that the applicant’s reliance on the fact that the issue is admitted in the plea
to be misplaced. The applicant argues that because the proposition was admitted
in paragraph 24 of the plea, it is now a common cause issue that the respondents
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cannot dispute. I disagree. The admission in the plea is only a formal admission.
It can be withdrawn or amended, as the respondents have indicated they intend to
do and they have already filed notice to amend their plea . The proper forum for
challenging the respondents’ attempt to amend the plea is when the application for
leave to amend is heard. It is not appropriate to use this interlocutory application
to effectively determine the merits of the dispute, particularly when the
respondents have filed a notice of intention to amend their plea and the applicant
has objected to it.
[27] The respondents’ notice of intention to amend the plea, dated 19 February 2026,
is relevant. The respondents seek to substitute paragraph 24 of their plea with a
denial of the proposition that the applicant’s fees constitute a disbursement. The
applicant has objected to the proposed amendment. However, the amendment
process is separate from this application. The respondents are entitled to seek to
amend their pleadings, and the merits of that amendment will be considered in the
appropriate forum. The mere fact that an amendment has been proposed does not
render the present application to compel moot. However, it re inforces the
respondents’ position that the issue is genuinely in dispute.
[28] I am also persuaded by the respondents’ submission that compelling them to sign
the pre-trial minute would effectively determine the merits of the dispute without
a trial. This would prejudice the respondents’ ability to present their defence and
would be contrary to the principles of fairness and justice. The purpose of Rule 37
is to narrow issues, not to determine them. Only a trial is meant to determine the
issues. Where there is no agreement on a material issue, the proper course is to
record the issue in the pre-trial minutes as being in dispute and refer it for trial. No
party should be compelled to agree to anything during the Rule 37 proceedings.
party should be compelled to agree to anything during the Rule 37 proceedings.
[29] The applicant also contended that the respondents’ answering affidavit was
deficient because it did not respond to all the paragraphs of the founding affidavit.
The applicant argued that the unanswered paragraphs should therefore be deemed
admitted. I find this argument to be without merit. The central issue in this
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application is narrow and procedural: whether the respondents can be compelled
to sign the pre -trial minute where they dispute common cause issues . The
respondents’ answering affidavit squarely addresses this issue by explaining that
there was no agreement on paragraph 2.7 and that the proposition in question is
disputed. The fact that the answering affidavit does not respond to every narrative
paragraph of the found ing affidavit is not fatal to the respondents’ case. What
matters is that the Respondents have raised a bona fide dispute on the issue in
question.
[30] Furthermore, the applicant’s reliance on the doctrine that an allegation that is
neither admitted nor denied is deemed to be admitted is misplaced. That doctrine
applies to pleadings, not to affidavits in motion proceedings. In motion
proceedings, the court considers the affidavits holistically. The unanswered
portions of the founding affidavit do not automatically establish the facts alleged.
[31] The applicant further argued that the respondents’ conduct was obstructive and
that the only way to progress the matter was to compel them to sign the minute. I
do not agree. The respondents have not refused to participate in the pre -trial
process. They have simply refused to sign a document that they say does not
accurately reflect the agreement reached. This is not obstruction; it is a legitimate
exercise of their rights. The Dire ctive provides for other mechanisms to address
disputes, such as judicial case management. The applicant was not without a
remedy.
[32] The applicant also argued that he would suffer prejudice if the application is
dismissed because he will be unable to apply for a trial date without a signed pre-
trial minute. I do not find this argument compelling.
[33] The applicant is not precluded from applying for a trial date. If the parties cannot
agree on a pre -trial minute, the issue can be resolved by the trial court. The
agree on a pre -trial minute, the issue can be resolved by the trial court. The
registrar may still allocate a trial date, albeit with the dispute noted. Moreover, the
applicant can seek judicial case management to resolve the impasse.
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Conclusion
[34] In conclusion, I find that the applicant has failed to make out a case for the relief
sought. The respondents cannot be compelled to sign a pre -trial minute that
contains a proposition that they genuinely dispute.
[35] The issue in dispute (whether the applicant’s fees constitute a disbursement) is a
material issue that must be ventilated at trial. The respondents’ refusal to sign the
minute is not obstructive but is a legitimate exercise of their rights. The application
to compel is therefore dismissed.
Costs
[36] The central dispute that gave rise to this application was paragraph 2.7 of the pre-
trial minutes, which stated: “[t]hat the Plaintiff’s fees constitute a disbursement in
the business and practice of the Defendants and the obligation to pay him rests
with them.” The respondents’ attorney unilaterally deleted this paragraph, refusing
to sign the minutes.
[37] The applicant contended that this issue was common cause. He further pointed out
that the very same legal proposition was admitted by the respondents in paragraph
24 of their plea. The respondents submitted that this admission was a mistake, an
“administrative and drafting error,” and that they intended to amend their plea. At
the time of hearing of this application, they had indeed filed a notice of intention
to amend their plea.
[38] The question before me now is the appropriate costs order. In assessing the
respondents’ conduct, I must consider the context. The admission in their plea was
indeed a mistake. The respondents’ decision to first deny the admission existed
and then later to characterize it as a mistake was, objectively, caused the applicant
to launch this application. It was this very conduct that necessitated the applicant’s
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application to compel. Nevertheless, the respondents’ decision to oppose the
application was not entirely without foundation. They presented a coherent
argument that the issue was disputed. Their “mistaken admission” argument was
not so far-fetched as to be deemed vexatious or malicious. It was a legal argument
rooted in their own view of their case. They were attempting to correct what they
perceived as an error, and they followed the proper procedure by filing a notice to
amend their plea. This lends some credence to their claim of a good-faith mistake.
[39] Furthermore, the respondents’ conduct was not characterized by the kind of gross
delinquency or abuse of process that typically attracts punitive costs. Their
opposition was based on a legal point concerning the use of pre -trial minutes to
record admissions on disputed issues. This, i n my view, distinguishes this case
from situations where a party acts with deliberate disregard for the rules or seeks
to frustrate the litigation process.
[40] Although t he applicant was unsuccessful and the respondents are generally
entitled to their costs, this Court retains a broad discretion. In the present case, the
applicant’s application was necessitated by the respondents’ mistake and the
respondents succeeded in opposing the application. I find no vexatious conduct on
each party, and therefore the Court may depart from the usual costs order.
[41] In the exercise of my discretion, I find that the just and equitable order is that each
party should bear its own costs for this application. The respondents’ refusal to
sign the minutes was the direct cause of the litigation, but their conduct was not
so reprehensible as to warrant a punitive costs sanction.
[42] Furthermore, the applicant seeks the costs of the condonation application, which
were reserved by S Van Nieuwenhuizen AJ. As for the costs of the condonation
application, I am of the view that similarly each party must pay their own costs
application, I am of the view that similarly each party must pay their own costs
having considered that although the applicant was successful, he was a party
seeking indulgence from the court. Of significance, it is also that the condonation
application is intertwined to this application wherein I found that each party must
pay their own costs and that application was necessary because the applicant filed