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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION, JOHANNESBURG
Case Number: 2024-079930
In the matter between:
SIFISO ANDREW NHLABATHI APPLICANT
and
THE STANDARD BANK OF SOUTH AFRICA LIMITED RESPONDENT
ORDER
1. The late delivery of the answering affidavit of the respondent dated 18 March
2025 is condoned. The costs of the respondent's application for condonation
are costs in the action.
2. The application by the applicant for condonation of the late delivery of his
notice of complaint in terms of rules 30 and 30A of the Uniform Rules of
Court, and of his application in terms of those rules, is refused.
3. The application in terms of rules 30 and 30A of the Uniform Rules of Court to
set aside the combined summons issued by the respondent herein under
case number 2024-079930 is dismissed.
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO OTHER JUDGES: YES/NO
(3) REVISED: YES/NO
_________________
GARVEY AJ 9 SEPTEMBER 2026
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4. The applicant is ordered to pay the costs of the respondent on the scale as
between attorney and client.
JUDGMENT
GARVEY AJ
Introduction
[1] The applicant is the defendant in a pending foreclosure action brought by the
respondent bank. He applies in terms of rules 30 and 30A of the Uniform
Rules of Court to set aside the respondent's combined summons in its entirety
and seeks condonation for t he late delivery of his notice of complaint and of
the application itself. The respondent opposes the application and seeks
condonation in turn, on a provisional basis, for the late delivery of its
answering affidavit. The applicant appeared in person, and counsel appeared
for the respondent.
Background
[2] The background is largely common cause. In October 2004 and October
2007, the respondent lent the applicant R 680 000 and R 200 000 under two
home loan agreements, secured by two mortgage bonds over his home, Erf
5[…] H[…] Extension 2 Township, Roodepoort. The applicant fell into arrears.
His last payment was made on 24 August 2022, and by 3 May 2024 the
arrears stood at R 385 852.36. After notice under section 129(1) of the
National Credit Act 34 of 2005, the respondent issued a combined summons
on 18 July 2024 claiming R 497 792.91 with interest, an order declaring the
property specially executable, a reserve price, and costs.
[3] The sheriff served the summons on the applicant personally at the property on
30 August 2024. T he return records that its nature and contents were
explained to him. He gave notice of intention to defend on 11 September
2024. On 7 November 2024 he delivered a notice of complaint in terms of
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rules 30 and 30A raising seven complaints, which the respondent's attorneys
rejected on 13 November 2024. Nothing followed until a notice of bar on 20
January 2025. At his request the applicant was given until 3 February 2025 to
plead. He did not plead, instead, on 4 February 2025 he la unched this
application.
[4] The respondent answered on 27 February 2025. After the applicant objected
that the affidavit had been commissioned before a commissioner employed by
the respondent's former attorneys, a further commissioned affidavit followed
on 18 March 2025, with a condonation application on 15 April 2025. The
applicant filed no replying affidavit and no affidavit opposing condonation.
The respondent's condonation
[5] The answering affidavit was due by 4 March 2025 and was some 11 days
late. The delay is fully explained. The initial affidavit was delivered in time, but
the deponent had unknowingly deposed before a “disqualified” commissioner,
and the defect was cured within the very 10- day period the applicant's own
notice allowed. The delay was short, the explanation is candid, and no
prejudice was suggested. Condonation is granted.
The applicant's condonation
[6] Rule 30(2) required the applicant to deliver his notice of complaint within 10
days of becoming aware of the alleged irregular step, and the application
within 15 days after the expiry of the period allowed for removing the alleged
complaint. With the summons having been s erved on 30 August 2024, he
had to deliver his notice by 13 September 2024. He delivered it on 7
November 2024, roughly two months late. The application, due by mid-
December 2024 at the latest, came on 4 February 2025, a further seven
weeks late.
[7] Condonation is not to be had for the mere asking. A full, detailed and accurate
account of the causes of the delay must be given (see Uitenhage Transitional
Local Council v South African Revenue Service 2004 (1) SA 292 (SCA) at
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para 6). The degree of lateness, the explanation, the prospects of success
and the importance of the case weigh together, but without prospects of
success condonation serves no purpose (see Melane v Santam Insurance Co
Ltd 1962 (4) SA 531 (A) at 532C-F). The applicant's explanation, being a lack
of funds, a fruitless search for legal assistance, family matters in Eswatini, and
a return to South Africa on 27 January 2025, is thin. He gives no dates for his
absence and does not explain September to November 2024, when he was in
the country, gave notice to defend, and himself having drafted a detailed
notice of complaint. He is, however, a lay litigant defending his home, and I
make every allowance for that. The decisive question is whether his
complaints enjoy any prospect of success. I turn to them.
The complaints
[8] Rule 30 permits t he setting aside of an irregular step. Rule 30A provides a
remedy for non- compliance with the rules. Both are procedural tools. An
irregular step will be set aside only where it prejudices the complaining party
in the further conduct of the case, and even then, the court retains a
discretion. Technical objections to less than perfect procedural steps should
not, in the absence of prejudice, be permitted to delay the decision of cases
on their real merits (see Trans-African Insurance Co Ltd v Maluleka 1956 (2)
SA 273 (A) at 278F-G).
[9] The first complaint is that the sheriff did not explain the nature and contents of
the summons, in breach of rule 4(1)(d). The return of service says the
opposite, and it is prima facie proof of what it records under section 43(2) of
the Superior Courts Act 10 of 2013. A bare denial does not displace i t (see
Wightman t/a JW Construction v Headfour (Pty) Ltd 2008 (3) SA 371 (SCA) at
paras 12 - 13). In any event the summons served its purpose. The applicant
received it and defended timeously. There is no prejudice. The complaint
fails.
received it and defended timeously. There is no prejudice. The complaint
fails.
[10] The second complaint, under rule 16(1), was not renewed in the founding
affidavit. R ightly so, as the summons identifies the respondent's attorneys.
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The third is that a simple summons under Form 9 had to be used because the
claim is for a debt or liquidated demand. It is not so confined. T he respondent
also claims an order declaring the applicant's home specially executable and
the fixing of a reserve price under rule 46A, relief that requires pleaded
particulars. Form 10 was the correct and a permissible form. Both complaints
fail.
[11] The fourth complaint is that the summons was not signed as rule 18(1)
requires. It was signed by René Pieterse, an attorney with the right of
appearance in the High Court in terms of section 25(3) of the Legal Practice
Act 28 of 2014, and rule 18(1) permits signature by such an attorney alone.
The complaint is factually unfounded.
[12] The fifth and sixth complaints concern the missing first loan agreement and
the particularity of the pleading. The particulars of claim plead when, where
and by whom each agreement was concluded, explain that the signed first
agreement was lost despite a diligent search, and annex an unsigned copy of
the standard terms then in use. Rule 18(6) does not compel the impossible .
The loss of a written contract does not destroy the cause of action, and its
terms may be proved by secondary evidence (see ABSA Bank Ltd v Zalvest
Twenty (Pty) Ltd 2014 (2) SA 119 (WCC) at paras 9 and 12). The remaining
points, being the 2003 date of the standard terms, the arrears calculation, the
legibility of annexures, are matters for a plea, a request for clearer copies, or
trial. They do not render the pleading irregular. These complaints fail.
[13] The seventh complaint is non- compliance with rule 46A. The particulars of
claim plead the rule 46A framework, draw the applicant's attention to section
26 of the Constitution, and invite him to place his personal circumstances
before the court. No writ of ex ecution can issue against his home unless a
court, after considering all relevant circumstances, orders it. That judicial
court, after considering all relevant circumstances, orders it. That judicial
oversight still lies ahead, and the applicant will be fully heard when it happens.
There is no present irregularity and no prejudice. The complaint fails.
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Conclusion and costs
[14] None of the complaints discloses an irregularity that prejudices the applicant
in the conduct of his defence. Everything he raises can be raised in a plea.
The application, which was launched the day after his extended deadline to
plead had expired, and after he had been barred, was in all probability aimed
at delay. It has no prospects of success. On the approach in Melane that is
decisive, and condonation is refused. Even had I granted it, I would have
dismissed the application for the reasons given.
[15] Costs follow the result. The mortgage bonds entitle the respondent to costs
as between attorney and client in proceedings to enforce its security, and the
application was a meritles s device deployed to stall a foreclosure. The
applicant's lay status does not excuse that. Costs are awarded on that scale.
The respondent's condonation application was occasioned by its own
commissioning error. Its costs will be costs in the action.
Order
[16] In the result, the following order is made:
1. The late delivery of the answering affidavit of the respondent dated 18
March 2025 is condoned. The costs of the respondent's application for
condonation are costs in the action.
2. The application by the applicant for condonation of the late delivery of
his notice of complaint in terms of rules 30 and 30A of the Uniform
Rules of Court, and of his application in terms of those rules, is refused.
3. The application in terms of rules 30 and 30A of the Uniform Rules of
Court to set aside the combined summons issued by the respondent
herein under case number 2024-079930 is dismissed.
4. The applicant is ordered to pay the costs of the respondent on the
scale as between attorney and client.
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________________________
C B GARVEY
ACTING JUDGE OF THE HIGH COURT
GAUTENG LOCAL DIVISION
JOHANNESBURG
Date of hearing: 8 June 2026
Date of judgment: 9 September 2026
Appearances:
For the Applicant: In person
For the Respondent: M Rakgoale
instructed by Vezi & De Beer Incorporated