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[2023] ZAWCHC 86
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City of Cape Town v ICT-Works Proprietary Limited (8049/2019) [2023] ZAWCHC 86 (23 April 2023)

FLYNOTES:
CIVIL PROCEDURE – Exception – Period to amend –
Plaintiff failing to amend particulars within
30-day period –
Condonation – Amendments substantial and increasing claim to
R38 million – Directions in
exception judgment procedural
and time-related, and not substantive – Interests of justice
would be served if condonation
is granted.
In the High Court of
South Africa
(Western Cape
Division, Cape Town)
Case
Number: 8049/2019
In
the matter between:
THE
CITY OF CAPE TOWN
Plaintiff
And
ICT-WORKS
PROPRIETARY LIMITED
Defendant
Date
of hearing: 19 April 2023
Date
of Judgment: 29 April 2023
Before:
The Honourable Ms Acting Justice Pangarker
JUDGMENT
DELIVERED THIS 28 DAY OF APRIL 2023
PANGARKER,
AJ
Introduction
[1]
On 10 May 2022, Goliath DJP (as she then was) delivered a judgment
pursuant to the hearing of an exception
taken by the defendant
against the plaintiff’s Particulars of Claim. At paragraph 43
of the judgment, the learned Judge granted
the following order (the
Goliath order):
“
43.1
The exception is upheld with costs.
43.2
Plaintiff is given leave to amend the particulars of claim by way of
notice of amendment within 30 days of
the date of this order.
43.3
Should the Plaintiff fail to amend the particulars of claim within
the time stipulating in this order, the
defendant is granted leave to
set the matter down for an order striking out the Plaintiff’s
claim.
43.4
The Plaintiff is ordered to pay the costs of the exception.”
[2]
Thus, the plaintiff had 30 days from date of granting of the order to
amend its Particulars of Claim
by way of a notice of amendment and
that failing such compliance, the defendant was granted leave to set
the matter down for an
order striking out the plaintiff’s
claim. The plaintiff instituted its damages claim against the
defendant in May 2019 and
it is based on the defendant’s breach
of contract in relation to the design, supply and development of the
City of Cape Town’s
“My City” bus fare and
maintenance system. The parties had contracted with each other in
February 2011 and the plaintiff
pleads that the defendant failed to
carry out the work in a proper and workmanlike fashion.
[3]
The plaintiff failed to comply with the 30-day period as required by
paragraph 43.2 of the Goliath order
and such failure precipitated the
two applications before me: the defendant’s application to
strike out the plaintiff’s
claim and the plaintiff’s
counter application for condonation for non-compliance with the
30-day time limitation. This period
would have lapsed on 22 June
2022, meaning that the plaintiff was required to amend its
Particulars of Claim by such date. The
amendment was delivered on 22
July 2022.
Relief
sought
[4]
In its striking out application the defendant applies for the
dismissal of the plaintiff’s claim,
and in the alternative, for
the claim to be struck out with costs. When proceedings commenced on
19 April 2023, the defendant’s
counsel advised that his client
was not proceeding to seek a dismissal of the claim but persisted
with the application to strike
out. In its counter application, the
plaintiff seeks condonation for the late delivery of its amendment
and an order that the defendant
pays the costs of the application in
the event that it is opposed. The parties are referred to as
plaintiff and defendant in this
judgment. It was agreed that the
condonation application would be argued first.
The
defendant’s striking out application
[5]
The defendant’s attorney deposed to an affidavit in support of
the application to strike out.
The affidavit recites the history of
the matter to the extent that the Summons was issued in May 2019 and
that the action was defended.
Subsequently, in June 2019, the
defendant delivered a notice to remove the cause of complaint which
was followed by the delivery
of an exception in July 2019 as the
plaintiff had failed to remove the cause of complaint.
[6]
The affidavit then refers to Goliath DJP’s order and that the
exception was upheld with costs
and a copy of the judgment is
attached to the striking out application. The affidavit confirms that
the 30-day period lapsed on
22 June 2022 and that the plaintiff had
failed to amend its Particulars of Claim in accordance with the
order.
The
plaintiff’s condonation application
[7]
As with the striking out application, the plaintiff’s attorney
is the deponent to the affidavit
in support of condonation. The
attorney remarks that the 30 day time period afforded to amend its
pleading was not “
ungenerous”
[1]
.
The
attorney explains that in order to effect the relevant amendments to
the Particulars of Claim, it was necessary to obtain instructions
to
determine whether, in light of the judgment, the action should still
be pursued and if so, to consult with City officials extensively
and
the external engineer, Telematics. The consultations occurred on, 3,
24 and 29 June 2022 respectively.
[8]
In addition to the above, the attorney states that the claim is
relatively complex, that the tender
document is voluminous, that the
amendment required careful consideration of the judgment and further
investigation into the factual
background and legal issues arising
from it. A further challenge was that information related to the
claim was in the hands of
the defendant which still operated the
transport management system of “My City” on an outsourced
basis.
[9]
At paragraph 11 of the affidavit, the attorney explains that the
matter is also complicated as it relates
to a pending matter in this
Division under case number 6582/2020. I point out that this
particular issue forming part of the explanation
for delay was
eventually abandoned during argument and accordingly I do not intend
to address it further.
[10]
It is thus stated on behalf of the plaintiff that the delay in
complying with the 30-day period was due to the
following factors:
10.1
Certain City officials were on leave;
10.2
It was necessary to liaise with Telematics to obtain historical
information and documents which were not
available on the City’s
records; and
10.3
After the Goliath judgment, the parties became engaged in settlement
discussions which ultimately proved
unsuccessful.
[11]
On 23 June 2022, a day after the lapse of the 30 days, the
plaintiff’s attorney corresponded with the defendant’s

attorney advising that the plaintiff awaited certain instructions
from the City and would endeavour to deliver the amendment by
28 June
2022
[2]
. The attorney had
followed up with the relevant officials regarding the outstanding
documents so that the amendment could be finalised.
He explains that
incomplete information was received from Telematics. Accordingly,
therefore, the plaintiff’s attorney had
requested the
outstanding information from the relevant sources
[12]
Further correspondence followed on 8 July 2022, and once again, the
plaintiff’s attorney informed his opponent
that he was in the
process of finalising the amendment
[3]
.
On 15 July 2022, the defendant’s attorney reiterated the
Goliath order, emphasising that it had not been complied with,
and
the plaintiff was accordingly advised that the defendant was
proceeding to enrol an application to strike out the plaintiff’s

claim. This correspondence was followed on 18 July 2022 by the
plaintiff’s attorney who advised in writing that he still

awaits final instructions from the City to complete the amendment,
which he was unable to obtain as certain City officials were
on
leave. Furthermore, the external engineers and historical information
were not readily available. The correspondence concludes
by
indicating that the City’s instructions were that the
outstanding information and instructions would be made available

during the course of that week and that the notice of amendment would
be delivered by 22 July 2022.
The plaintiff’s
submissions
[13]   Counsel
for the plaintiff submitted that the amendments to the Particulars of
Claim are substantive and runs to
hundreds of pages. He admits that
the City could have put something up before the 30-day deadline but
it did not do so as it took
the Goliath judgment and the learned
Judge’s findings regarding excipiability of the pleadings,
seriously. It required of
the City to investigate the evidence it had
and consider the steps to be taken to attend to the amendments as set
out in the judgment.
Counsel submits that the amendment, following on
from the judgment, runs to 235 pages.
[14]   I am
asked to take account of the prospects of success in that the
question must be asked whether the amendment
does what the Goliath
judgment says it must do. To this extent, the plaintiff submits that
the defendant takes no issue with the
amendments and that the
latter’s opposition does not address the amendments at all. It
is further submitted that the defendant
does not attack the
amendments on the basis of excipiability and that the only issue
relates to the lateness of delivery thereof
and the reasons provided
for such delay.
[15]   The
amendments, should condonation be granted, would mean that the
plaintiff’s claim is increased to R38million
and further
substantive changes would take effect in respect of the Particulars
of Claim. Counsel has further submitted that regard
must be had to
the extent of the City’s non-compliance with the order, which
is limited to a further month (thirty) days
after the 22 June 2022
deadline. The plaintiff’s counsel has conceded that while the
reasonable explanation for his client’s
delay is not a model of
perfection, and that the latter can be criticized, the delay is
nonetheless explained in the application,
showing that the City is by
no means
mala fide
in seeking condonation.
[16]
The further submissions by the plaintiff are that the Court should be
mindful that the order relates to a procedural
step or requirement,
and it not a substantive order. In support of its case, the plaintiff
relies on
Finch
v Finch
[4]
where
the question arose whether a plaintiff’s failure to have a
rule
nisi
endorsed
in terms of section 25(2) (a) of the now repealed Supreme Court
Act
[5]
,
was capable of condonation by the Court. The High Court condoned the
non-compliance, holding that there must be a “
good
and sufficient foundation”
[6]
for
the exercise of its discretion to condone non-compliance with s25
(2). The further submission is that the materiality of the
breach is
relevant.
[17]
As to the Defendant’s view that the Plascon-Evans rule applies,
the plaintiff’s submission is that
because the condonation
application is interlocutory, the reliance on the aforesaid principle
is incorrect. Similarly, there can
be no request to refer the issues
to oral evidence. The plaintiff relies on
Wilson
v Die Afrikaanse Pers Publikasies (Edms) Bpk
[7]
and
on
Paribas
Asia Ltd and Others v Liang and Others
[8]
as
authority for holding that striking out a claim or defense is a
drastic step, and should only be resorted to in instances where
there
is contumacy by the other party. It is thus argued that there is no
basis for stating that the plaintiff’s explanations
are false,
and that its actions were deliberate. Thus, the plaintiff seeks
condonation in respect of non-compliance with the Goliath
order,
dismissal of the striking out application and costs as per paragraph
52 of its Heads of Argument.
The
defendant’s opposition to the condonation application
[18]
In the answering affidavit to the counter application, the
defendant's attorney makes the averment that the City’s

non-compliance with the Court order was wilful, that it cannot be
said that the City was unaware of the order, nor can it be said
that
the City was unaware of what was required of it in terms thereof. It
is pertinently argued that the City chose not to comply
with the
Goliath order. The attorney avers that the plaintiff’s
explanation for non-compliance relies on factors which indicate
that
it was not convenient for it to comply with the order.
[19]
Furthermore, it is contended that given that the Summons was issued
in May 2019, the plaintiff had sufficient time
to determine what its
position was and how to formulate its case, as well as what necessary
evidence it required against the defendant.
Despite this, the
Particulars of Claim were materially defective. Subsequent to the
judgment on the irregular step by Kusevitsky
J in August 2021, the
City’s stance was to maintain that its case against the
plaintiff was good. Furthermore, the plaintiff
had an additional
opportunity to consider its position against the defendant. It is
emphasized that despite the plaintiff's attorney’s
concession
that the 30-day period was not ungenerous, the plaintiff nonetheless
failed to comply with the Goliath order and now
sought condonation
for its wilful misconduct.
[20]
At paragraph 22 of the answering affidavit, the Defendant makes the
point that it is not in the interests of justice
for the Court to
exercise its discretion in favour of the City by granting
condonation. In this regard, it is advanced that the
defendant is
prejudiced by the City's conduct, and cannot bear the financial
burden of the plaintiff's approach to its flawed case.
It is
submitted that the City, as an organ of State, is held to a higher
standard than ordinary citizens, and in circumstances
where the City
flouts the Court order, the Court must hold it accountable for its
actions.
[21]
I am reminded that the City is seeking an indulgence. The submission
on behalf of the Defendant is that the non-compliance
with the Court
order should be viewed in a more serious light than non-compliance
with the Rules or procedure. It is argued that
the explanation for
delay is inadequate and unreasonable, and that there are periods of
time which the City does not explain.
[22]
The defendant takes issue with the Plaintiff’s explanation that
it took three weeks to consider a judgment
on an exception. In
addition, the complaint is that the consultations with City officials
only occurred in June, after the order
was granted. The City is thus
criticized for not acting promptly following the judgment, more
specifically that the last two consultations
occurred at the end of
June, after the lapse of the 30-day period. As to the explanation of
having to consult with Telematics,
the defendant points out that this
engineer had always been readily at the disposal of the City and was
the engineer at the time
of the institution of the Plaintiff’s
action. The further complaint is that the information required is not
specified.
[23]
The defendant attacks the City’s explanation that the former
had information relevant to it pursuing the
amendment, and it is
submitted that the plaintiff never requested any information from the
defendant at any stage. There is also
no evidence that legal steps
were taken in order to obtain such information. I point out that this
basis for condonation was eventually
abandoned during argument. The
defendant furthermore complains that the City officials who were
presumably on leave are not named
and no indication is provided as to
when they were on leave and why they are essential for the
finalization of the amendment. It
is also pointed out that none of
these officials have provided any confirmatory affidavits in the
circumstances. Accordingly, it
is argued that this Court is not in a
position to scrutinize the acceptability of the City’s
assertion that officials were
on leave.
[24]
As to the explanation that the parties engaged in settlement
negotiations, the defendant admits same but it is
stated that the
parties had already engaged in such negotiations prior to the
judgment of Goliath DJP. On this aspect, the argument
is that
notwithstanding settlement negotiations, the City was obliged to
amend its Particulars of Claim in line with the order.
The
defendant’s view is that the City should have approached the
Court to seek an extension of the deadline referred to in
terms of
paragraph 43.2 of the order before the expiry of 30 days.
[25]
On the question of prejudice, the defendant states that it is
prejudiced by the botched attempt to prosecute the
plaintiff’s
claim. As time goes by and the matter continues, the defendant
remains defamed as a result of the averments in
the pleading and the
action hanging over its head. The defendant is a profitable business
and is required to spend hours gathering
supporting evidence and
historical facts in order to defend itself against the City’s
weak case, which is in the public domain.
I am asked to be mindful
that were I to grant condonation, it would result in the plaintiff
obtaining another bite at the cherry
when it had failed to comply
with an order of Court and that this would not serve the interests of
justice. The defendant argues
that the confirmatory affidavit of the
City’s senior legal advisor, Ms. Markram, takes the matter no
further.
[26]
Furthermore, it is submitted that the City is able to litigate
luxuriously using public funds, while the defendant
has to carry the
costs which were awarded on the ordinary scale, leaving the defendant
out of pocket at the end of the day. The
submission is made that the
City should have withdrawn its action and started afresh. The
defendant seeks an order dismissing the
counter-application with
costs and granting the striking out application with costs.
The
defendant’s submissions
[27]
The defendant’s counsel handed up a further note on oral
argument, in addition to his Heads of Argument.
I must state that the
Heads of Argument amount to a regurgitation of the defendant’s
answering affidavit, but for the references
and discussion of
authorities. Counsel submits that the defendant could not condone the
plaintiff’s non-compliance and that
the breach of the order is
thus willful. In addition, there is an absence of a clear, full and
frank explanation for the plaintiff’s
delay. It is submitted
that organs of State such as the plaintiff, are held to a higher
standard when it comes to compliance with
Court orders
[9]
.
The argument goes that if the explanation does not pass muster, then
there is no need to deal with the rest of the issues in respect
of
condonation.
[28]   The
defendant’s counsel submits that no reason is advanced for the
failure to approach the Court to seek
an extension of the 30 days nor
why the consultations with the officials and engineers only occurred
in June, and the defendant
was never requested to provide information
in order for the plaintiff to have attended to the amendments.
[29]
As for Ms Markram’s confirmatory affidavit, it does not address
the issues regarding officials on leave and
falls short of what is
stated in
Drift
Supersand v Mogale City Local Government
[10]
.
As
regards the test for condonation, counsel submitted that
Wilson
was
overruled by the Full Bench in
Wanson
Company of South Africa (Pty) Ltd v Establissements Wanson
Construction De Material Thermieque Societe Anonyme
[11]
,
which held that contumacy was not the only reason for striking out a
defense.
[30]   The
defendant denies that it wishes the claim to be struck out because it
is reluctant to plead. The argument is
that its failure to address
the amendments is through no reluctance to plead but due to there
being no amendment to consider. Counsel,
though conceding that the
Plascon-Evans is not material in the determination of the
application, nonetheless submitted that the
striking out application
and the condonation application sought final relief. It is further
argued that the defendant is prejudiced
by the serious allegations
which the plaintiff makes in its pleadings. It is submitted that the
defendant’s reputation is
tarnished, and that breach of a Court
order cannot be remedied by a costs order.
[31]
In reply plaintiff’s counsel emphasized that the test for
condonation is as set out in
Du
Plooy v Anwes Motors (Edms) Bpk
[12]
and
emphasized that the defendant does not attack the amendments to the
plaintiff’s pleadings. It was further submitted that
the Court
order allows for amendments and the only issue is the plaintiff’s
lateness; furthermore, that the order envisaged
a further step in the
event of the plaintiff’s non-compliance, albeit, a striking out
application, where the plaintiff’s
explanation for its would be
considered. Counsel also disagrees that the applications are for
final relief.
Discussion
[32]   The
Court order requires of the plaintiff to amend its Particulars of
Claim by delivering its Notice of Amendment
within 30 days of the
order being granted. In the absence of such compliance, a further
procedure is indeed envisaged in paragraph
43.3 of the Goliath order
in that the defendant was granted leave to apply to strike out the
plaintiff’s claim. Having regard
to the exception judgment, it
is evident from paragraph 37 and following, that the learned Goliath
DJP found that:
32.1
The plaintiff’s annexure “POC3”
to the Particulars of Claim does not deal with defects and the like
and thus the
Particulars of Claim lack averments necessary to support
the allegation that the defendant was in breach of the parties’
agreement;
32.2
The material facts necessary to establish
the contractual basis to support the employer’s (the City)
claim was not properly
pleaded;
32.3
The plaintiff failed to plead termination
of mediation (as a first step in dispute resolution); and
32.4
The plaintiff failed to sustain a cause of
action in support of the loss suffered as a result of breach of the
parties’ contract.
[33]   Thus,
the plaintiff was required to remedy its pleading in respect of the
substantive defects which the Court found
in its Particulars of
Claim. Before addressing the condonation issue, it behooves me to
remark that the Notice of Amendment appends
Annexure ”A”
which is the the Amended Particulars of Claim together with annexures
relied, on to wit, “POC1-A;
“POC2”; ‘’POC2A”;
“POC4A’’ and ‘’POC4B’’. The
Amended Particulars
of Claim amount to 40 pages, and the annexures as
referred to above, to 189 pages. A quick perusal of ‘’POC1-A’’,

the FIDIC Conditions of Contract for Plan-and Design Build 1
st
Edition, which comprises part of the parties’ contract, shows
that it relates to the plaintiff’s IRT bus fare system,
and
that substantive amendments are made to it. In addition, and without
making any findings on the correctness or excipiablity
of the
amendments, my observations are that the plaintiff certainly
addresses the findings made by the learned Judge in the exception

judgment, by making amendments to paragraphs 3.3, 3.4, 7, 8 and 10 of
the Particulars of Claim. The further amendments relate to
the
quantum of the claim, and alternative claims. Thus, I agree with the
plaintiff’s counsel that the amendments seek to
address the
specific complaints raised in the exception judgment, and they are by
no means inconsequential or minor.
[34]   As a
matter of completeness, and having regard to the submissions of both
parties, I note that the Plascon-Evans
argument is seemingly not
relied upon and the plaintiff’s reliance on a pending case
6582/2020, was abandoned. Furthermore,
the plaintiff conceded,
correctly so in my view, that it did not comply with the 30-day time
period allowed to amend the pleadings
and that the City can be
criticized for the delay and jumping into action (by way of
correspondence), a day after the deadline
had expired. In addition,
the averment that the defendant had information which the plaintiff
considered necessary for the amendments,
was also a non-issue or
abandoned.
[35]
It is important to note that the plaintiff’s condonation
application does not relate to non-compliance with
the Uniform Rules
of Court. The non-compliance relates to its failure to act in
accordance with paragraph 43.2 of the Goliath order.
To this extent,
I agree with the defendant’s counsel that the conduct is
egregious. I furthermore agree with the submission
that Court orders
are required to be complied with and must be obeyed
[13]
.
In this regard, section 165(5) of the Constitution of South Africa
1996, makes orders of Court binding on all persons and organs
of
State to whom such orders apply. I am further in agreement that
organs of State are held to a higher degree of accountability
and
duty to respect the law
[14]
.
The higher standard and duty to obey Court orders derives from
section 165(4) of the Constitution which states that:
“
165.
Judicial authority
4.
Organs of state, through
legislative and other measures, must assist and protect the courts to
ensure the independence, impartiality,
dignity, accessibility and
effectiveness of the courts.”
[36]   The
defendant’s argument, which refers to seriousness or
disobedience of a Court order by an organ of State,
concludes that in
the context of this matter, the City’s breach of the Goliath
order, warrants a striking out of the plaintiff’s
claim. In my
view, this conclusion is not as straightforward as the defendant
proposes.
[37]   I turn
then to the next issue which is whether non-compliance with a Court
order may be condoned. The starting
point is that the applications
before me do not fall under contempt of Court proceedings, even
accepting that the plaintiff failed
to comply with paragraph 43.2 of
the Goliath order. It would seem that counsel are ultimately in
agreement that non-compliance
with a Court order may be condoned but
such agreements notwithstanding, the consideration of condonation for
such non-compliance
warrants my consideration.
[38]
I was referred to certain authorities on which the plaintiff relies
in support of the submission that condonation
for non-compliance with
a Court order may be granted. In
Paribas
(supra)
,
the Court held that the answering affidavit of the respondent’s
attorney, which replied to the applicant’s interrogatories

pursuant to an earlier order granting the applicants leave to
administer interrogatories, did not comply with the said order. It
is
evident from the facts of
Paribas
that the respondents had taken steps to comply with the order, albeit
not correctly or as required. The High Court faced with the

applicant’s striking out application, found that it would be
inappropriate in the circumstances of that matter to dismiss
the
respondent’s actions
[15]
.
In
Cilibia
v Cilibia
[16]
,
the
High Court dealt with a contempt of Court application. The respondent
was previously ordered to file an answering affidavit
by a certain
date and failed to do so. The High Court granted condonation for such
non-compliance, having regard to the nature
of the proceedings and
the serious consequences that a finding in favour of the applicant
would have for the respondent
[17]
.
[39]   Having
regard to the parties’ submissions and authorities, I conclude
that there can be no doubt that a party
is entitled to apply for
condonation for its non-compliance with a Court order. In the context
of this matter and the order granted
on 10 May 2022, a further
procedural step (striking out application) was envisaged and in my
view, there is nothing in the Goliath
judgment or order which would
preclude the plaintiff from applying for condonation in the event of
its non-compliance with paragraph
43.2 thereof. In the circumstances,
I am thus satisfied that the plaintiff is entitled to apply for
condonation for its non-compliance.
[40]
I hold the view that a discussion on condonation in this matter
should be preceded by a consideration of the nature
of the order and
the extent of non-compliance thereof. In this regard, I am more
inclined to find favour with the plaintiff’s
submission in that
the nature of paragraph 43.2 of the Goliath order is procedural and
time-related, and not substantive. Thus,
what was required of the
plaintiff was to act positively by delivery of a Notice of Amendment
within 30 days of the granting of
the order. Thus, accepting that in
relation to the plaintiff, the order and non-compliance are
time-related, I find that that the
views by the learned Heher, JA in
Uitenhage
Transitional Local Council v South African Revenue Service
[18]
are
apt;
“
[6]
One would have hoped that the many admonitions concerning what is
required of an applicant in a condonation
application would be trite
knowledge among practitioners who are entrusted with the preparation
of appeals to this Court: condonation
is not to be had merely for the
asking; a full, detailed and accurate account of the causes of the
delay and their effects must
be furnished so as to enable the Court
to understand clearly the reasons and to assess the responsibility
.
It must be obvious that if the non-compliance is time-related then
the date, duration and extent of any obstacle on which reliance
is
placed must be spelled out
.”
(my emphasis)
[41]   Whist
Heher, JA in
Uitenhage
considered condonation
for non-compliance within in the context of the Rules of the Supreme
Court of Appeal relating to the prosecution
of appeals, the Judge of
Appeal’s comments regarding time-related non-compliance are
applicable to the plaintiff’s
non-compliance in this matter.
Having regard to the additional authorities provided by the parties,
the further general guidelines
provided by the higher Courts
regarding explanations for delays and non-compliance may be
summarized as follows:
41.1
A
full explanation for the non-compliance must be provided and it must
be reasonable
[19]
;
41.2
The
explanation for delay must cover the entire period of the delay
[20]
;
41.3
The
standard for consideration of a condonation application is the
interests of justice
[21]
.
[42]   Turning
to the Court’s discretion to grant condonation, it is trite
that the discretion is a wide discretion,
having regard to the facts
and circumstances of the matter. Turning to the explanation for delay
in this matter, I point out that
there is no explanation provided by
the plaintiff’s attorney in his founding affidavit as to why,
realizing that the 30-day
deadline was approaching, the Court was not
approached to seek an extension of the time period. That being the
case, the defendant’s
criticism in this regard is thus
justified, so too its questioning of the lateness with which the
plaintiff’s attorney communicated
his client’s challenges
for the first time, which only occurred a day after the 30-day period
had lapsed. Most certainly,
when I consider the yardstick and
guidelines in
Uitenhage
and other authorities referred
to herein, the plaintiff’s explanation does not cover the
entire period of the delay as from
the granting of the order nor does
it explain why the plaintiff’s attorney only communicated with
his opponent for the first
time, a day after the lapse of the 30
days.
[43]   In this
regard, certainly the plaintiff’s attorney fails to indicate
how soon after 10 May 2022, contact
was first made with officials and
the engineer, and when information was requested from them for the
first time in order to attend
to the amendments. The question is
whether such failure clouds the explanation for delay and
non-compliance to the extent that
the counter-application should be
refused? The defendant has approached the counter-application in a
manner where it has broken
down each explanation for the delay and in
my view, categorized it as five excuses for non-compliance with the
order. While I can
appreciate the defendant’s opposition to the
request for condonation, I am of the view that the explanation should
rather
be considered holistically, as opposed to in a piecemeal
fashion, and within the context of the exception judgment, the extent
of the amendments to the pleadings and the interests of justice.
[44]   Despite
the shortcomings in the explanation and absence of dates, it is
nonetheless so that the plaintiff (through
its attorney), kept the
defendant abreast of the difficulties and challenges it was
experiencing in obtaining instructions regarding
the amendment. I
gather from the correspondence between the parties’, that
instructions were not finalized by 28 June 2022
as the plaintiff’s
attorney was still awaiting same at 8 July 2022. A further, more
detailed update followed on 18 July 2022,
setting out that the delays
were due to officials being on leave, awaiting instructions, the
external engineer not being readily
available and historical
information and documents not being readily accessible and available
in the City’s records.
[45]   In my
view, the plaintiff’s explanation regarding incomplete
information, the delay in obtaining documents
and instructions, and
the difficulties experienced in securing consultations with the
external engineer, is at the very least sufficiently
full.
Furthermore, the plaintiff was required to effect substantial changes
to its pleadings and Annexures in light of the findings
in the
exception judgment and this is explained in the founding affidavit to
the condonation application. Given the complexity
of the claim and
the parties’ agreement relied upon by the plaintiff, it would
be more than reasonable to expect that the
City would need to consult
with various personnel and its external engineer in order to consider
which parts of its claim required
attention and subsequent changes.
Having regard to the explanation tendered, I hold the view that the
extent of the obstacles faced
by the plaintiff, which led to the
delay and non-compliance with paragraph 43.2, are clearly described
and with sufficient detail
to give me an idea of the plaintiff’s
challenges, even if I discount the reference to unnamed officials
being on leave.
[46]
While it was been argued that the plaintiff has not provided a
day-by-day account of its delay subsequent to the
granting of the
order as referred to in
Von
Abo
[22]
(supra)
,
and not withstanding such justified criticism, what is provided is
certainly a reasonable explanation for delay. Absent a day-by
day
explanation for such delay, what I do see is an explanation in the
affidavit, confirmed by the attached correspondence, which
supports
the view that not only was the plaintiff experiencing difficulties in
obtaining instructions, consulting and procuring
information and
documents, but it needed to seriously consider the findings related
to the shortcomings in its pleadings, and had
to attend to it. It is
also apparent that the fact that the plaintiff was afforded 30 days
to remedy the defects in the pleadings
shows that the Court hearing
the exception must also have considered that the amendments would be
numerous or substantial. Thus,
the further explanation that the
plaintiff needed to consider its positon and whether it would pursue
the action in light of Goliath
DJP’s findings, is in my view,
neither far-fetched nor indicative of any
mala
fides
on the plaintiff’s part.
[47]
The defendant has argued that the plaintiff’s failure to
identify which of its officials were on leave, when
they were on
leave and the absence of confirmatory affidavits of these officials,
is fatal. Certainly, Ms Markram’s affidavit
takes the matter no
further and would fall in that category of confirmatory affidavits
referred to in paragraph 31 of
Driftsand
[23]
(supra)
whereby
the statement in the affidavit amounts to hearsay and has little or
no cogency. One may ask whether the affidavits of officials
on leave
would be crucial to the plaintiff’s case for condonation? In my
view, the absence of these officials is but one
of the grounds or
bases upon which the plaintiff states that it could not consult
timeously and therefore there was a delay in
attending to the
amendment. Absent such confirmatory or explanatory affidavits from
these officials, the other reasons for delay
still remain, so in my
view, the failure to attach the officials’ affidavits is not
fatal tot eh application. Furthermore,
the defendant sought to pass
off the plaintiff’s additional explanation for the delay, being
the parties’ settlement
negotiations after the Goliath judgment
as being of no consequence, yet does not deny that there were
settlement negotiations after
the judgment. I am of the view that
this additional factor weights in favour of an ultimate finding that
the plaintiff’s
explanation for delay, notwithstanding
shortcomings pointed out in the opposing papers, is sufficiently full
and reasonable.
[48]   There is
the question as to whether the plaintiff’s explanation is
littered with contrived excuses, as suggested
by the defendant.
Firstly, the defendant is not entitled to know the content of
consultations between the plaintiff’s attorney
with City
officials amount to in view of the attorney and client privilege, and
aside from making sweeping statements about contrived
excuses, such
contention is not supported by contrary facts indicated in the
answering affidavit. In the context of the claims,
the pleadings and
amendment thereto, and the parties’ contractual relationship,
the submission that the plaintiff’s
explanation is contrived,
does not hold.
[49]
On the issue of prejudice to the defendant were I to grant
condonation, I certainly appreciate that the latter
faces a massive
claim of R38 million which it needs to contend with since issue of
the Summons four years ago. However, where I
disagree, is that the
prejudice resulting from the non-compliance with the order, stretches
over the four-year period. Furthermore,
the reliance on
Media
24 Ltd and Others v SA Taxi Securitisation (Pty) Ltd (Avusa Media Ltd
and Others as Amici Curiae)
[24]
as
support for the contention that the defendant is prejudiced by bad
publicity as a result of the pending action, is misguided.
Media
24
dealt with a defamation claim by a company arising from an article
published in a newspaper circulated country wide. The action
in this
commercial matter relates to a damages claim arising out of an
alleged breach of contract so the argument about bad publicity
in my
view, cannot hold. I must also point out that the suggestion that the
defendant was out of pocket because of party and party
costs awards
granted in two previous applications is not sufficient reason for me
to hold that there is continued prejudice to
the defendant in this
matter. Those applications were granted in the defendant’s
favour and costs followed the result. Accordingly,
I am inclined to
agree with the plaintiff that the prejudice to the defendant is
limited to the City’s non-compliance with
the Goliath order and
in this regard, the delay which the defendant was subjected to was a
month or 30 days, as the Notice of Amendment
was delivered on 22 July
2022. The prejudice is thus limited to a time-related delay.
[50]   Having
considered the application and submissions, I find that there is
simply no merit in the argument that the
City has acted in bad faith
and that its explanation for delay is
mala fide
. The
explanation is most certainly not a model of perfection, and it has
its shortcomings as described above, but it is sufficiently
full
enough for me to assess the plaintiff’s motives and conduct,
which I accept to be that it heeded the warnings of the
Goliath order
and after consultations and delays, attended to make numerous
amendments to its pleadings.
[51]
The further important factor which the defendant should be mindful of
is the interest of justice standard
[25]
.
Given the large claim of R38 million, the efforts made in respect of
substantial amendments to the pleadings, the defendant’s

silence on the amendments and the fact that parties should be given
an opportunity to have their disputes aired in Court, I am

accordingly satisfied that the interests of justice would be served
if condonation is granted for non-compliance with paragraph
43.2 of
the order. I must also remark that I am not persuaded by the argument
that the plaintiff should simply have withdrawn its
claim and started
afresh: it would seem that on the one hand, the defendant wants to
urge the plaintiff to proceed with the matter
yet also wishes that
the action would be withdrawn, and this cannot be. Furthermore, there
is no suggestion that the amended Particulars
of Claim, albeit that
they are late, are in any way excipiable.
[52]   The
effect of granting the condonation would be that the striking out
application would be dismissed. In any event,
having regard to
Wanson
(supra)
,
this is not a matter where it can be said
that the plaintiff recklessly embarked on its claim which it did not
have a hope in proving
or that its pleadings are inadequate.
[53]   As to
the argument regarding organs of State, I agree that they are held to
a higher standard. However, the submissions
by plaintiff that the
authorities such as
Kirkland
and
Pheko
(supra),
upon which the defendant relies, relate to PAJA and
review applications, and that this matter relates to a commercial
dispute,
are accepted. In my view, to simply refuse condonation
because the City failed to comply with the order, and does not
present a
perfect explanation for its default, and thus to strike out
the City’s claim, would be to elevate the procedural and
time-related
non-compliance with the order, above the interests of
justice standard. In the circumstances and as a result of all the
above findings,
I am inclined to exercise my discretion in favour of
the plaintiff and grant condonation for its failure to comply with
paragraph
43.2 of the Goliath order.
[54]   In
conclusion, this is a matter where the defendant could not consent to
condonation and was forced to enroll a
striking out application. The
costs orders below reflect this conclusion and the plaintiff’s
request regarding costs during
its argument. In view of the above
findings, it is hence not necessary to deal with the remaining issues
raised in the matter.
In the result, I grant the following order:
1.
The counter-application (condonation) is
granted.
2.
The striking out application is dismissed.
3.
The defendant shall pay the plaintiff’s
costs arising from its opposition to the counter-application
(condonation application).
4.
The plaintiff shall pay the defendant’s
costs of the striking out application.
PANGARKER,
AJ
Counsel for Applicant:
M Tsele
Instructed by:
CMS
RM Partners
Counsel for Respondent: M
Greig
Webber
Wentzel Attorneys
[1]
Par
7, Record, p2
[2]
Annexure
AA1
[3]
Annexure
AA2
[4]
1963(3)
SA 594 (N),
[5]
59
of 1959
[6]
1963(3)
SA 594 (N) at 604
[7]
1971(3)
SA 455 (T)
[8]
1987(2)
SA 491 (C)
[9]
See
MEC for Health, Province of Eastern Cape NO and Another v Kirkland
Investments (Pty) Ltd t/a Eye & Laser Institute 2014(3)
SA 219
(SCA)
[10]
[2017]4
All SA 624 (SCA) paras 31 and 32
[11]
1976(1)
SA 275 (T)
[12]
1983(4)
SA 212 (O)
[13]
Pheko
and Others v Ekurhuleni City 2015(5) SA 600 (CC) para26-27
[14]
Buffalo
City Metropolitan Municipality v Asla Construction (Pty) Ltd 2019(4)
SA 331 (CC) paragraph 60; MEC for Health, Eastern
Cape and Another v
Kirland Investments (Pty) Ltd 2014(3) SA 481 (CC paragraph 82
[15]
Paribas
(supra)
at
499
[16]
[2022]
ZAFSJC 132
[17]
At
paragraph 15 of the judgment
[18]
2004(1)
SA 292(SCA)
[19]
Grootboom
v National Prosecuting Authority and Another 2014(2) SA 68 (CC)
paragraph 23; Von Abo v President of the Republic of
South Africa
2009 (5) SA 345
(CC paragraph 20; see also Siber v Ozen Wholesalers
(Pty) Ltd 1954 (2) SA 345 (A) 353
[20]
Van
Wyk v Unitas Hospital 2008(2) SA 472 (CC)
[21]
Brummer
v Gorfil Brothers Investments (Pty) Ltd and Others 2000(2) SA
837(CC); eThekwini Municipality v Ingonyama Trust 2014(3)
SA 240
(CC)
[22]
At
paragraph 20
[23]
At
paragraph 31
[24]
2011
(5) SA 329
(SCA) at paragraph 17
[25]
See
Brummer