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[2026] ZAGPPHC 859
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M.I.F v J.I.F (2024-138628) [2026] ZAGPPHC 859 (28 July 2026)
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IN THE HIGH COURT OF
SOUTH AFRICA
(GAUTENG DIVISION,
PRETORIA)
CASE NUMBER:
2024-138628
DATE: 27 JULY 2026
(1)
REPORTABLE: YES/NO
(2)
OF INTEREST TO OTHERS JUDGES: YES/NO
(3)
REVISED
..... DATE 28 July 2026
SIGNATURE
In the matter between:
M[...]
I[...] F[...]
Applicant
(Identity
Number: 6[...])
and
J[...]
I[...] F[...]
Respondent
(Identity
Number: 3[...])
In
re, the main action:
J[...]
I[...] F[...]
Plaintiff
(Identity
Number: 3[...])
and
M[...]
I[...] F[...]
Defendant
(Identity
Number: 6[...])
This order is made an
Order of Court by the Judge whose name is reflected herein, duly
stamped by the Registrar of the Court and
is submitted electronically
to the Parties/their legal representatives by e-mail. This
Order is further uploaded to the electronic
file of this matter on
Case Lines by the Judge or his/her secretary. The date of this
Order is deemed to be 28 July 2026.
JUDGMENT
DU
PLESSIS, AJ
INTRODUCTION
1.
1.1.
This is an
opposed application in terms of Rule 27 of the Uniform Rules of Court
for the upliftment of a notice of bar. The applicant,
Ms M[...]
I[...] F[...], is the defendant in the main action. She was barred
from delivering her plea and now seeks to be relieved
of that bar so
that she may deliver a plea and counterclaim. The respondent, Ms
J[...] I[...] F[...], is the plaintiff in the main
action. She
opposes the application and, for her part, seeks condonation for the
late delivery of her answering affidavit.
1.2.
The parties
are related. The applicant is married to the respondent’s son,
and the respondent is therefore the applicant’s
mother-in-law.
The applicant and her husband are themselves embroiled in divorce
proceedings, and it is common cause that the present
dispute is bound
up with that divorce. That familial backdrop explains much of the
acrimony evident in the papers, but it does
not alter the questions
of principle that fall to be decided.
1.3.
The matter was
argued before me on 27 July 2026. Both parties stood by their heads
of argument as filed. Three questions arise:
first, whether the
respondent’s late answering affidavit should be condoned;
second, whether the applicant has shown good
cause for the upliftment
of the bar; and third, the costs of the application, having regard to
the conduct of both parties. I deal
with each in turn, after setting
out the background and the applicable principles. Save for a single
authority to which the respondent
referred me from the Bar, and to
which I return, I have confined myself to the authorities placed
before me by the parties.
THE
MAIN ACTION
2.
2.1.
The respondent
issued a combined summons on 28 November 2024. Her claim, as pleaded,
is founded upon an oral agreement allegedly
concluded between the
parties during 2008, in terms of which the respondent would fund the
construction of a cottage on the applicant’s
property and
contribute towards the bond registered over that property, in
exchange for a right to reside on the property for the
remainder of
her life. The respondent alleges that she paid R678 994.00 towards
the construction and a further amount towards the
bond, that the
applicant breached the agreement and she claims payment of R678
994.00 and R630 000.00 — some R1.3 million
in total —
together with interest at 11.75% per annum and costs on the
attorney-and-client scale. The claim is framed, in
the alternative,
in enrichment and under the Aquilian action.
2.2.
The
applicant’s intended defence, as foreshadowed in her founding
affidavit and draft plea, is that no such oral agreement
was ever
concluded; that the payments relied upon were made pursuant to an
arrangement between the respondent and her son (the
applicant’s
husband), as an advance against, or part of, his inheritance; that
the amounts are in any event disputed; and
that a substantial portion
of the construction was funded by the applicant and her husband. The
applicant further foreshadows a
counterclaim, premised on the
contention that the respondent is in unlawful occupation of the
applicant’s property, as a
result of which the applicant is
unable to let the cottage and has suffered a loss of rental. I
express no view on the merits of
any of this; I record it only
because the strength of a proposed defence is relevant to the enquiry
that follows.
THE
DEFAULT AND THE EXPLANATION FOR IT
3.
3.1.
The summons
was served personally on the applicant on 3 December 2024. She
instructed her then attorneys, Clarinda Kügel Attorneys,
to
defend the action, and a notice of intention to defend was delivered
on 13 December 2024. The applicant’s plea fell due
on 11
February 2025. On her version, she believed throughout that her
attorneys were attending to the matter and that a plea would
be, and
had been, delivered.
3.2.
On 4 February
2025 the applicant terminated the mandate of her erstwhile attorneys
— her dissatisfaction arising principally
from their handling
of the divorce, in which they were also instructed — and she
requested her file and her account. On 4
March 2025 the respondent’s
attorneys served a notice of bar on the erstwhile attorneys, calling
for delivery of the plea
by 11 March 2025. On the same day, 4 March
2025, the erstwhile attorneys signed a notice of withdrawal as
attorneys of record for
the applicant. That notice of withdrawal was
served on the respondent’s attorneys and received by them on 7
March 2025 (CaseLines
005-1 to 005-2), and it recorded the
applicant’s personal email address (m[...]) and her residential
address as the address
at which she was thereafter to be served. The
applicant did not deliver a plea and became ipso facto barred on 11
March 2025.
3.3.
The
applicant’s explanation for the default rests on the conduct of
her erstwhile attorneys, and it must be stated at the
outset that her
account is, in one respect, inaccurate. Her founding affidavit
asserts that the erstwhile attorneys did not deliver
a notice of
withdrawal; the record at CaseLines 005 shows that they did, on 4
March 2025, received on 7 March 2025. To that extent
her affidavit
overstates the position, and I take the inaccuracy into account. But
the substance of her complaint is a different
one, and it is not
answered on the papers: that the notice of bar — served on
attorneys whose mandate she had already terminated
— was never
brought to her attention, and that she remained unaware that she had
been barred until 22 to 23 May 2025. What
the notice of withdrawal
does establish, and what tells against the respondent, is that from 7
March 2025 the respondent’s
attorneys knew both that the
applicant was unrepresented and where she was personally to be
served. Notwithstanding that knowledge,
the respondent proceeded on
24 April 2025 to request default judgment, and enrolled the matter
for 29 August 2025.The pending default
judgment was disclosed to the
applicant’s newly-instructed attorneys only after those
attorneys made contact by email on
22 May 2025 (annexure MF14).
3.4.
The
intervening period is taken up largely with the applicant’s
attempts to obtain her file and account from the erstwhile
attorneys,
which she says were withheld pending payment. She followed up on 24
February, 7 March, 11 March and 13 March 2025; received
an account on
27 March 2025; and settled it on 23 April 2025, having borrowed the
money from a colleague. Her new attorneys, Van
Heerden & Krügel,
received the file on or about 6 May 2025 and consulted with her on 19
May 2025, at which point —
the plea and the main action being
conspicuous by their absence from the file — the true state of
affairs began to emerge.
Between 22 and 23 May 2025 the new attorneys
made contact with the respondent’s attorneys (annexure MF14)
and were told that
the applicant had been barred “
for
some time
”.
A notice of appointment was filed on 28 May 2025; a letter seeking
consent to the upliftment of the bar was delivered on
4 June 2025;
consent was refused, without reasons, on 17 June 2025; and the
applicant instructed her attorneys to proceed on 25
June 2025. After
a period during which counsel was ill, the application was deposed to
and finalised on 18 July 2025, and issued
and served in early August
2025 — shortly before the date on which default judgment was to
be sought, with the result that
the application for default judgment,
enrolled for 29 August 2025, was removed from the roll.
THE
RESPONDENT’S LATE ANSWERING AFFIDAVIT
4.
4.1.
The respondent
delivered a notice of intention to oppose on or about 13 August 2025.
Her answering affidavit fell due on 2 September
2025 but was
delivered only at the beginning of November 2025 —
approximately two months out of time. In her answering affidavit
the
respondent seeks condonation. Her explanation is that her daughter,
who assists her in communicating with her attorneys, notified
them
that she would be overseas; that her attorneys mistakenly understood
this to mean that the respondent herself would be unavailable
and
diarised the file for after her “
return
”;
and that the delay was a
bona
fide
oversight. At the hearing, the applicant’s counsel indicated
that the applicant did not oppose the respondent’s condonation,
and the respondent’s counsel confirmed that the affidavit might
be accepted. The condonation is therefore, in the event,
unopposed.
It remains, however, a matter that I am entitled to weigh, and do
weigh, in assessing the respondent’s conduct
and her insistence
upon strict compliance by the applicant.
THE
APPLICABLE PRINCIPLES
5.
5.1.
Rule 27
permits the court, on good cause shown, to extend or abridge time
limits and to condone non-compliance with the Rules. A
party in
default of a pleading is barred under Rule 26, and the bar may be
lifted only on application showing good cause. The parties
are agreed
that the touchstone is “
good
cause
”,
and their respective lists of authorities substantially overlap on
the content of that standard.
5.2.
The classic
statement is that of the Appellate Division in
Melane
v Santam Insurance Co Ltd
1962 (4) SA 531
(A), on which both parties rely. There the court
held:
“
In
deciding whether sufficient cause has been shown, the basic principle
is that the Court has a discretion, to be exercised judicially
upon a
consideration of all the facts, and in essence it is a matter of
fairness to both sides. Among the facts usually relevant
are the
degree of lateness, the explanation therefor, the prospects of
success and the importance of the case. Ordinarily these
facts are
interrelated, they are not individually decisive … save of
course that if there are no prospects of success there
would be no
point in granting condonation. … What is needed is an
objective conspectus of all the facts. Thus a slight delay
and a good
explanation may help to compensate for prospects which are not
strong. Or the importance of the issue and strong prospects
of
success may tend to compensate for a long delay. And the respondent’s
interest in finality must not be overlooked.”
5.3.
The
requirement of a full explanation, covering the entire period of the
delay, was underscored by the Constitutional Court in
Van
Wyk v Unitas Hospital and Another
[2007] ZACC 24
;
2008 (2) SA 472
(CC), which requires an explanation that is full,
that covers the entire period, and that is reasonable. The
respondent’s
authorities make the same point: in
Independent
Municipal and Allied Trade Union obo Zungu v SA Local Government
Bargaining Council and Others
[2013] JOL 30060
(LC) it was held that the mere listing of
significant events, without an explanation for the time that lapsed
between them, does
not place a court in a position to assess the
explanation — it amounts to no more than a recordal of dates.
And in
Dengetenge
Holdings (Pty) Ltd v Southern Sphere Mining and Development Company
Ltd and Others
[2013] 2 All SA 251
(SCA) the relevant factors were listed as the
degree of lateness, the explanation for the delay, the prospects of
success, the
respondent’s interest in finality, the convenience
of the court and the avoidance of unnecessary delay.
5.4.
As to what an
applicant for the upliftment of a bar must show, the content of “
good
cause
”
is conveniently gathered in the authorities relied upon by the
applicant. In
A.M
v S.M.M
(45707/2021) [2023] ZAGPJHC 965 (25 August 2023) and
Ingosstrakh
v Global Aviation Investments (Pty) Ltd and Othe
rs
2021 (6) SA 352
(SCA) it was held that good cause entails a
reasonable and acceptable explanation for the default, a
demonstration that the party
is acting
bona
fide
, and
a
bona fide
defence which
prima
facie
carries some prospect of success. In
Smith
NO v Brummer NO
1954 (3) SA 352
(O) the explanation must be sufficiently full to
enable the court to understand how the default really came about and
to assess
the party’s conduct and motives, and the application
must not be made merely to delay. In
Madinda
v Minister of Safety and Security
[2008] ZASCA 34
;
2008 (4) SA 312
(SCA) “
good
cause
”
was said to look to all those factors bearing on the fairness of
granting relief between the parties and the proper administration
of
justice, including the prospects of success, the reasons for and
sufficiency of the explanation, the
bona
fides
of
the applicant, and any contribution by other persons or parties to
the delay.
5.5.
The threshold
for the
bona
fide
defence is not a demanding one. In
Body
Corporate v Bassonia Four Zero Seven CC
2018 (3) SA 451
(GJ) it was held that the defendant need show only
that the defence is not patently unfounded and that it is based on
facts, set
out in outline, which if proved would constitute a
defence. The court does not, at this stage, decide the merits.
5.6.
The
respondent, for her part, correctly emphasises the limits of an
explanation founded on the failures of a litigant’s legal
representatives. In
Chetty
v Law Society, Transvaal
1985 (2) SA 756
(A) the good-cause enquiry was authoritatively
restated, and a wholly unacceptable explanation may be decisive
whatever the prospects.
In
Saloojee
and Another v Minister of Community Development
1965 (2) SA 135
(A) the court warned:
“
There
is a limit beyond which a litigant cannot escape the results of his
attorney’s lack of diligence or the insufficiency
of the
explanation tendered. To hold otherwise might have a disastrous
effect upon the observance of the Rules of this Court. Considerations
ad misericordiam should not be allowed to become an invitation to
laxity. The attorney, after all, is the representative whom the
litigant has chosen for himself, and there is little reason why …
the litigant should be absolved from the normal consequences
of such
a relationship …”
5.7.
That principle
was applied more recently in
Ntintili
v City of Johannesburg Metropolitan Municipality
(788/2015) [2024] ZAGPJHC 676 (15 July 2024), where the court held
that the negligence of an attorney cannot always excuse a failure
to
discharge the mandate to prosecute the client’s case. And in
Shaikh v
South African Post Office Ltd and Others
(DA 4/09)
[2013] ZALAC 18
(19 July 2013) the court observed that
where a litigant attributes delay to the conduct of attorneys, a
confirmatory affidavit
from at least one of them is to be expected,
and that its absence points to a want of
bona
fides
.
5.8.
These strands
are not in tension. The court retains a discretion, to be exercised
on an objective conspectus of all the facts and
in fairness to both
sides. A litigant may not hide behind an attorney as a matter of
course; but where the explanation, taken as
a whole, enables the
court to understand how the default came about and is not a mere
device to delay, and where it is coupled
with a
bona
fide
defence of substance, good cause may be established notwithstanding
imperfections in the explanation. I approach the facts on that
footing, and — as fairness requires — without indulgence
towards negligence on either side.
CONDONATION
FOR THE LATE ANSWERING AFFIDAVIT
6.
6.1.
Although the
condonation is now unopposed, I record my assessment of it, because
it must be measured against the very standard the
respondent invokes
against the applicant. The answering affidavit was some two months
late. The explanation — a diarising
error by her attorneys,
born of a miscommunication about her daughter’s travel —
is meagre. It is not supported by
any particulars of the travel
relied upon, and the confirmatory affidavit foreshadowed in the
affidavit was, on the papers before
me, not delivered. Measured
against
Van
Wyk
and
against the respondent’s own authority in
IMATU
obo Zungu
,
the explanation is thin and does not cover the period of the delay
with any precision. There is, moreover, a real irony in a litigant
who insists upon strict compliance with the Rules seeking, in the
same breath, to be excused from them.
6.2.
Nevertheless,
the applicant does not oppose the indulgence, and applying
Melane
and weighing the matter in fairness to both sides I am satisfied that
condonation should be granted. The delay occasioned no real
prejudice: the applicant was afforded, and took, a full opportunity
to reply. Refusing condonation would not advance finality,
since the
main action must in any event be determined; it would instead decide
the application on a one-sided record. The interests
of justice are
best served by having the application determined on all the papers.
The thinness of the explanation and the respondent’s
own want
of diligence are matters that sound in costs, and in the weight to be
given to her demand for strict compliance, rather
than in the refusal
of the indulgence. Condonation is accordingly granted, but the
respondent earns no costs for it, and her posture
as a champion of
strict compliance is considerably weakened by it.
UPLIFTMENT
OF THE BAR
7.
The
explanation for the default
7.1.
The
respondent’s criticisms of the applicant’s explanation
are not without force, and I do not accept the explanation
uncritically. Three criticisms in particular have merit. First, the
applicant’s reliance on her inability to pay her erstwhile
attorneys, as the reason she could not obtain her file, is undermined
by her own annexure “
MF12
”:
that account is headed “
divorce
”
and bears a file reference (PF0093) different from the reference for
this matter (PF0099). This was ventilated in argument.
The
applicant’s counsel submitted that the account nonetheless
relates to the same proceedings, but was unable to explain
the
discrepancy in the file reference; the respondent maintained that it
may relate to a different matter. The discrepancy was
thus not
resolved, and to that extent the “
file-was-withheld
”
strand of the explanation remains unconvincing. Second, there is no
confirmatory affidavit from the erstwhile attorneys,
whose conduct
lies at the heart of the explanation; that absence is a real
deficiency, of the kind cautioned against in Shaikh.
Third, parts of
the timeline reflect less urgency than one would expect of a litigant
facing default judgment — though, as
I explain below, that
criticism is materially blunted once the full record is considered.
7.2.
These are
proper considerations, and I take them into account. A litigant bears
ultimate responsibility for the conduct of her case,
and
Saloojee
and
Ntintili
rightly caution against allowing sympathy to become an invitation to
laxity. Had the applicant’s explanation rested on the
fee
dispute alone, or on a bare assertion that her attorneys had let her
down, it may well have failed.
7.3.
But the
explanation does not rest there, and when the full record is
considered the default, and the applicant’s continued
ignorance
of it, are substantially attributable to the conduct of others —
including the respondent’s own attorneys.
Three matters are
telling. First, although the erstwhile attorneys did withdraw, the
notice of bar served upon them on 4 March
2025 was not shown to have
been conveyed to the applicant, who on the probabilities remained
unaware that she had been barred until
her new attorneys ascertained
it on 22 to 23 May 2025. Second, and importantly, the respondent’s
attorneys received the notice
of withdrawal on 7 March 2025 and from
that date knew that the applicant was unrepresented and held the
address at which she was
to be served. Yet, instead of serving the
ensuing steps upon her, they requested default judgment on 24 April
2025, enrolled it,
and disclosed the pending default judgment to the
applicant’s new attorneys only after those attorneys initiated
contact
on 22 May 2025. A litigant kept in the dark in this way, and
against whom default judgment is pursued without service although her
address is known, cannot fairly be visited with the ordinary
consequences of inaction. Third,
Madinda
makes “
any
contribution by other persons or parties to the delay
”
relevant to good cause; here that contribution — by the
erstwhile attorneys and by the respondent’s attorneys
alike —
is substantial. It is this feature that distinguishes the present
matter from
Saloojee
and
Ntintili
,
in each of which the default lay at the door of the litigant’s
own passivity and her own attorney’s neglect, and not,
as here,
in part at the door of the opposing party.
7.4.
Applying the
objective conspectus required by
Melane
,
and the standard in
Smith
NO v Brummer
,
the explanation — though imperfect, inaccurate as to the notice
of withdrawal, and unconvincing as to the fee dispute —
is,
taken as a whole, sufficiently full to enable me to understand how
the default really came about. I am not persuaded that the
application is a device to delay within the meaning of Smith; the
applicant’s persistent efforts to retrieve her file, and
the
fact that she moved to regularise her position once the true state of
affairs emerged, are inconsistent with mere stratagem.
The
explanation meets the threshold, and such weaknesses as it has fall
to be weighed against the strength of the proposed defence,
to which
I now turn.
The
bona fide
defence
7.5.
The
applicant’s defence clears the threshold set in
Body
Corporate v Bassonia
and
Ingosstrakh
with room to spare. Her primary defence is a denial that the oral
agreement sued upon was ever concluded. A denial of the very
agreement on which the claim is founded is, if established at trial,
a complete defence; it is neither shadowy nor illusory. To
that she
adds a positive version — that the payments were made pursuant
to an arrangement between the respondent and the
applicant’s
husband, as an advance against or part of his inheritance — and
a dispute of the amounts. These are averments
of fact which, if
proved, would answer the claim.
7.6.
The
respondent’s heads characterise the defence as “
illusory
”
and “
legally
misdirected
”,
and submit that bare denials and allegations of excipiability cannot
do duty for a plea. There is a short answer. In her
answering
affidavit the respondent elected not to engage the merits of the
defence at all, treating them as irrelevant to the present
application. The consequence is that the applicant’s account of
her defence stands substantially uncontroverted on these
papers. A
defence that denies the existence of the contract, and offers an
alternative explanation for the payments, is not met
by declining to
answer it and then describing it as illusory. The respondent’s
submissions that the contentions of excipiability
are misplaced, and
that the counterclaim could be pursued in a separate action, may have
some technical merit; but they do not
touch the core defence, and the
fragmentation of a single dispute — itself closely tied to the
pending divorce — into
separate actions is neither convenient
nor just. I am satisfied that the applicant has a bona fide defence
with prospects that
are, at the least, not patently unfounded.
The
authority of Oertel v Kok
7.7.
In argument,
Mr Elliott, for the respondent, referred me to
Oertel
v Kok and Others
(097739/23) [2025] ZAGPPHC 93 (31 January 2025) as authority for the
refusal of the application. With respect, it does not avail
the
respondent; if anything, it tells the other way. In
Oertel
the defendants were barred and sought the upliftment of the bar under
Rule 27. The court found their explanation for the default
—
pressure of business and the relocation of offices — to be
unacceptable, held that they had been lax and had not
respected the
rules, and observed that they had placed no plea, and no clearly
articulated bona fide defence, before the court.
And yet,
notwithstanding both an unacceptable explanation and the absence of
any pleaded defence, the court uplifted the bar, holding
that in the
interest of justice the defendants ought to be afforded the
opportunity to defend the action.
7.8.
Two
consequences follow. First, if the bar was to be lifted in the
interest of justice in
Oertel
,
where the explanation was rejected and no defence was before the
court, then the case for upliftment is stronger here, where the
applicant has advanced a substantive defence going to the very
existence of the agreement sued upon. Second,
Oertel
adopted the good-cause formulation in
Smith
NO v Brummer NO
— an authority on which the applicant also relies —
including the consideration that any prejudice to the opposing
party
may be compensated by an appropriate order as to costs. To that
extent
Oertel
reinforces, rather than undermines, the applicant’s case. The
single respect in which it assists the respondent is on costs:
there
the barred party, though partly successful, was ordered to pay the
costs because its own default and conduct had occasioned
the
application. I return to that question below; it does not bear on
whether the bar should be lifted.
Prejudice,
finality and access to court
7.9.
The competing
prejudice must then be weighed. If the bar stands, the applicant is
shut out from defending a claim of some R1.3 million
which she
squarely disputes, and default judgment in that amount will follow.
That is the closing of the doors of the court against
a litigant with
a genuine defence, and it implicates the right of access to court
under section 34 of the Constitution. Against
that, Mr Elliott
stressed that his client is elderly — 89 years of age and, as
he put it, in her ninetieth year — and
has a strong interest in
the finality and expeditious resolution of her claim. I do not
discount that interest; the age of a litigant
is a proper
consideration, and it justifies holding the applicant to an expedited
timetable for her plea. But advanced age is not,
without more, a
sufficient answer to the applicant’s right to defend a disputed
claim of this magnitude; and the force of
the respondent’s
complaint of delay is blunted by the fact that the delay is in part
of her own attorneys’ making,
and that default judgment was
pursued against the applicant without service upon her though her
address was known. As
Smith
NO v Brummer
,
applied in
Oertel
,
recognises, prejudice of the kind pressed here can be substantially
met by an appropriate order as to costs and by a strict timetable.
The
Melane
balance falls in favour of upliftment.
7.10.
I therefore
conclude that the applicant has shown good cause, and the bar will be
uplifted on terms that protect the respondent
against further delay.
COSTS
AND THE CONDUCT OF THE PARTIES
8.
8.1.
Both parties
sought punitive costs. The applicant asked that the respondent pay
the costs on the attorney-and-client scale, contending
that the
opposition was unreasonable, malicious and vexatious. The respondent
asked that the application be dismissed with costs
on the
attorney-and-client scale. Neither request can be granted and it is
appropriate to say why, because the conduct of both
parties bears on
the order I make.
8.2.
The starting
point is that costs ordinarily follow the result (
Myers
v Abramson
1951 (3) SA 438
(C)), a rule from which the court departs only for
good reason. But the “
result
”
here is that a defaulting litigant has been granted an indulgence.
Where a party comes to court to be relieved of the consequences
of a
default, the court has a discretion, recognised in
Sampson
v Union and Rhodesia Wholesale Ltd
1929
AD 468
, either to refuse the costs of opposition, to make them costs
in the cause, or to grant them, according to whether the opposition
was justified; and the relevant considerations include prejudice
occasioned by delay (
Gool
v Policansky
1939 CPD 386)
, whether the default was a
bona
fide
mistake, and whether a genuine dispute exists between the parties
(S
chafer
v Memel Municipality
(2)
1933 OPD 173).
As
Oertel
illustrates, a party seeking the indulgence may be ordered to pay the
costs even where partly successful.
8.3.
The
applicant’s charge that the opposition was malicious and
vexatious is not made out. The respondent raised at least one
substantial and well-founded point — the discrepancy exposed by
annexure “
MF12
”,
which remained unresolved even in argument — and a legitimate
concern about the absence of a confirmatory affidavit
from the
erstwhile attorneys. A plaintiff confronted by a defaulting
defendant’s imperfect explanation is entitled to put
that
defendant to the proof; doing so is not vexatious. The applicant’s
prayer for attorney-and-client costs is refused.
8.4.
The
respondent’s prayer for a punitive order falls away with the
dismissal of her opposition, and would in any event have
failed. A
litigant who has herself delivered an answering affidavit two months
out of time, on a thin explanation, and who refused
consent to an
indulgence without furnishing any reasons, is in no position to seek
the court’s special disapproval of her
opponent.
8.5.
What remains
is to give effect, in the costs order, to the conduct of both sides.
The applicant is the party in default and seeks
an indulgence; a
litigant in that position is not ordinarily entitled to be paid for
obtaining it, and
Oertel
and
Sampson
show that she may even be ordered to pay. Her explanation was, as to
the fee dispute, unconvincing, and, as to the notice of withdrawal,
inaccurate — features that might ordinarily have attracted a
costs order against her. But the respondent’s conduct
disentitles her to that benefit. Her attorneys, knowing from 7 March
2025 that the applicant was unrepresented and holding her
address,
pressed for default judgment without serving her, and refused consent
to the upliftment; and the respondent herself delivered
her answering
affidavit two months late. In these circumstances it would be unjust
to order the applicant to pay the costs of an
application that the
respondent’s own conduct did much too precipitate, and equally
inappropriate to reward the applicant’s
imperfect and partly
inaccurate explanation with an order in her favour. The just and
equitable order, which marks the shortcomings
on both sides without
rewarding either, is that each party pays its own costs. I
considered, in reliance on
Oertel
,
directing the applicant to pay the costs as the party seeking the
indulgence; but
Oertel
is distinguishable, for there the wasted costs flowed from the barred
party’s own unreasonable persistence and there was
no
comparable contribution by the opposing party, whereas here the
respondent’s conduct substantially contributed to the
litigation.
ORDER
9.
In
the result, I make the following order:
9.1.
The
respondent’s non-compliance with the Rules in respect of the
late delivery of her answering affidavit is condoned.
9.2.
The notice of
bar served on the applicant on 4 March 2025 is uplifted.
9.3.
The applicant
is directed to deliver her plea, and counterclaim (if any), within 15
(fifteen) days of the date of this order.
9.4.
Each party is
to pay its own costs of the application.
DU
PLESSIS AJ
ACTING
JUDGE OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
Date
of hearing:
27 July 2026
Date
of judgment:
28 July 2026
For
the applicant:
Adv
B Bergenthuin, instructed by Van Heerden & Krügel Attorneys,
Pretoria.
For
the respondent:
Mr
K R Elliott of Elliott Attorneys Inc, Pretoria.