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IN THE HIGH COURT OF SOUTH AFRICA

NORTH WEST DIVISION, MAHIKENG

 

CASE NO: 1296/2018

 

Reportable: NO

Circulate to Judges: NO

Circulate to Magistrates: NO

Circulate to Regional Magistrates: NO

In the matter between:-

 

SELOGILWE BUILDING CONTRACTORS CC                                  Applicant

 

and    

 

THE MEC: DEPARTMENT OF CO-OPERATIVE

GOVERNANCE, HUMAN SETTLEMENTS AND

TRADITIONAL AFFAIRS: NORTH WEST                                          1^st Respondent

 

THE HOD: DEPARTMENT OF CO-OPERATIVE

GOVERNANCE, HUMAN SETTLEMENTS AND

TRADITIONAL AFFAIRS: NORTH WEST PROVINCE                      2^nd Respondent

 

Coram :                     Mfenyana J

This judgment was handed down electronically by circulation to the parties’ representatives via email. The date and time for hand-down is deemed to be 13 May 2025.

ORDER

 

a.    The application is dismissed with costs, including costs of two counsel where so employed.  

 

JUDGMENT

Mfenyana J

 

[1]       In these proceedings, the applicant, Selogilwe Building Contractors brought an application against the respondents. The application is two-fold. First, the applicant seeks an order for removal of the Bar, preventing it from filing of a replication. Secondly, the applicant seeks an order condoning the late filing of its replication.  

 

[2]        The respondents have opposed the application. For this reason, the applicant further contends that the respondents should be ordered to pay the costs of the applications jointly and severally, the one paying the other to be absolved.

 

[3]        The matter has a somewhat convoluted history. At the centre of the dispute between the parties are pending action proceedings instituted by the applicant for payment of a sum of R14 166 702.97 in respect of a construction agreement concluded between the parties for the construction of some 793 houses in the Greater Taung municipal area.  In those proceedings, the respondents duly entered appearance to defend the action and filed their plea. I interpose at this point, to state that the applicant points out that the respondents filed their plea 33 days out of time, without any application for condonation. This is immaterial for the simple reason that the respondents were not barred from pleading.  

 

[4]        The applicant thereafter filed an application for summary judgment which was dismissed by the court.  It is worth noting that the applicant further points out that in opposing the application for summary judgment, the respondents raised a point in limine that because the applicant had not filed a replication, they were barred from raising the issue of estoppel which the respondents raised in the application for summary judgment. However, further contend the applicant, the application for summary judgment was dismissed on a different point.

 

[5]        Subsequent to the dismissal of the application for summary judgment, the applicant filed an application for rescission of the order / judgment dismissing the summary judgment application. In a judgment handed down on 17 November 2022, the court also dismissed the rescission application.

 

Submissions

 

[6]        In the present application, the applicant contends that because the court granted condonation for the late filing of the respondents’ answering affidavit in the rescission application, which was almost three months late, and permitted an amendment sought by the respondents from the Bar, the court should similarly condone the late filing of its replication. I must say that the issue of the late filing of the replication is the core of the present proceedings. Granting of an indulgence by another court, does not elicit any form of entitlement by the applicant.   

 

[7]        It is further the applicant’s contention that the court in its judgment dismissing the rescission application on 17 November 2022 did not set out a specific timeframe within which a replication should be filed where there had been a summary judgment and rescission applications after the plea was filed. Neither do the Rules of Court.  It is on these grounds that the applicants instituted the present proceedings.

 

[8]        The applicant further avers that in the event  that it is inferred that the 15-day period specified in rules 25(1) and 26 is applicable in the present circumstances, then it should commence on the expiry of the time stipulated in rule 49(1)(b) for filing of an application for leave to appeal, in this case being 8 December 2022, which should also take into account the dies non between 16 December and 15 January.

 

[9]        The applicant then details the steps it took since 5 December 2022.  At that point the applicant states that counsel was briefed to draft the replication who thereafter on 13 December 2022 provided the first draft.  From 22 December 2022 until the end of January 2023, the applicant avers that its attorney became unavailable as he was involved in a major dispute in the Northern Cape Division of the High Court.

 

[10]      Of importance is that the applicant states that the replication was then finalised by its attorneys, and ready for service and filing on 30 January 2023. According to the applicant, that was also the last day permissible for filing the replication.  The applicant further contends that on the same day, the replication was sent by email to its correspondent attorneys.  It was not until the end of March 2023 that the applicant learnt that the replication had not been delivered or brought to the attention of the relevant person at its correspondent’s offices, as he was not available the whole time. Attempts to have the respondents consent to the late filing of the replication came to naught, and on 2 May 2023 the applicant was informed of this outcome by its correspondent attorneys.

 

[11]      The applicant contends that no prejudice would be suffered by the respondents if its non- compliance is condoned, as the respondents have been aware of its estoppel defence since 28 October 2020 when the applicant delivered its application for summary judgment in which the issue of estoppel was raised for the first time. Moreover, the respondents have already pleaded to the issue of estoppel in the application for summary judgment and can file a rejoinder in terms of rule 25(5) if the replication is allowed, the applicant further contends. The applicant therefore avers that no additional costs would be incurred by the applicants as there are no new facts raised, and tenders the costs, however only in the event this application is not opposed.

 

[12]      On prospects of success, the applicant avers that it enjoys good prospects of success as the estoppel it has raised would shorten the proceedings and thus promote judicial efficiency, as the matter would be decided on its merits and not on technicalities.

 

[13]      Lastly, the applicant contends that good cause is a matter of fairness to both parties, and as the respondents were granted condonation for their non-compliance in the rescission application and the amendment, the applicant should be afforded similar indulgence by lifting the Bar and condoning the late delivery of its replication. The applicant sought to rely on section 173 of the Constitution for the proposition that it was not improper for it to launch a rescission application after the summary judgment application.

 

[14]      In opposing the application, the respondents contend that the applicant opted not to file a replication and instead brought an application for summary judgment. They further contend that even after that application was dismissed on 26 May 2021, the applicant still failed to deliver its replication and chose to bring another application, this time for rescission of the order dismissing summary judgment. The respondents aver that this was incompetent, and was also dismissed by the court on 17 November 2022. Having failed to file its replication within 15 days as stipulated in rule 25(1) after the service of the plea, the applicant is ipso facto barred, further contend the respondents.

 

[15]      Pertaining to the application for condonation for the late filing of the replication as well as the upliftment of the Bar, it is the respondents’ contention that the time for filing of the replication lapsed on 29 October 2020 and is thus two and a half years out of time, and not on 30 January 2022 as averred by the applicant.  

 

[16]      The respondents aver that the applicant was required to file its replication, and raise the issue of estoppel, which it raised in the summary judgment application, which fact was within the applicant’s knowledge. The applicant’s contention in this regard is that in terms of rule 25(1) it had an election to either file a replication or an application for summary judgment. To this, the respondents retorted that by electing to apply for summary judgment, the applicant waived its right to file a replication. This is not entirely correct.  The filing of a summary judgment application does not necessarily translate to a waiver of the plaintiff’s right to file a replication. The authorities indicate that there is nothing prohibiting a party from filing a replication simultaneously with an application for summary judgment.

 

[17]      In Quattro Citrus (Pty) Ltd v F & E Distributors (Pty) Ltd t/a Cape Crops[1]  the court had to consider whether a plaintiff who files a replication or an exception after delivery of a plea waives their right to apply for summary judgment. In that case, the plaintiff had delivered its replication and the application for a summary judgment simultaneously. The court ruled that it was permissible for the plaintiff to file a replication and an application for summary judgment simultaneously. It granted summary judgment application.

 

[18]      This approach was followed in King Price Insurance Company Limited v Integritas Risk Solutions (Pty) Ltd[2]  where the plaintiff filed an application for summary judgment before filing a replication and plea. The court found that the plaintiff did not waive its right to apply for summary judgment by having filed a replication and plea.  

 

[19]      While it may be permissible for the applicant to make an election between a summary judgment application in terms of rule 32, and a replication in terms of rule 25(1), it is still required to comply with the Rules. Both Rules stipulate a period of 15 days within which a plaintiff should file either process. Thus, the applicant was entitled to file a replication, but had to do so within 15 days. There can therefore be no merit to the applicant’s contention that the present application is only brought ex abudanti cautela.  Having failed to file its replication within the time stipulated in the Rules, the applicant was obliged to apply for condonation. I deal with the application for condonation hereunder.

 

[20]      The respondents aver that according to the applicant, the replication was finalised on 30 January 2023, but that the applicant deliberately ignored the Rules, even though the replication was already 2 years out of time, delaying for a further 4 months to institute the present application. The respondent further contend that the applicant has not properly explained the delay, and that its conduct indicates a deliberate disregard of the Rules.  They contend that the applicant cannot be allowed to benefit from its own errors of judgment in an attempt to explain the unduly long delays.

 

[21]      It is further the respondents’ argument that the application is not bona fide in that the issue of estoppel, which is the main basis for the replication is ill-founded and misguided in that the plea only sought to amplify what the respondents had already stated in their letter to the applicant. Thus the respondents aver that intended estoppel has no prospect of success on trial.  

 

[22]      Consequently, the respondents aver that the applicant has failed to establish good cause and that it would not be in the interests of justice to grant the application where it is evident that the applicant took a conscious decision not to file a replication.

 

[23]      It is trite that Rule 25(i) requires to plaintiff, where necessary, to deliver a replication to the plea. What this means is that a replication must be filed only when it is necessary to do so. This includes responding to special defences raised in the plea, such as prescription. Estoppel in the context of a replication serves to rebut a defence raised by a defendant in the plea.

 

[24]      The applicant’s contention that the court did not set out timeframes when the replication should be filed is without merit. The rules are clear that a replication, if considered necessary, should be filed within 15 days of service of the plea. It is not for the court to regulate timeframes which are clearly set out in the Rules. What appears to be an issue is that the applicant believes that it was entitled to file its replication whenever it was done with whatever applications it chose to bring, and that only then would the dies start to run. Not only that- the applicant also argues that the dies should only start to run after the dies stipulated for leave to appeal. I have already stated that no leave to appeal was filed, and even if there was, the contention is flawed. The reasons which motivated the applicant not to follow that route are in my view, irrelevant. There has to be a limit to the extent to which a party can explore various strategies, which have the effect of dragging out its own litigation. Dare I say, considerably to the prejudice of the opposite party. While ‘summary judgment proceedings place a moratorium on the delivery of a plea pending the Court’s decision as to whether leave to defend should be granted’[3], they do not automatically suspend the filing of a replication. As I have already stated, this can be filed simultaneously with the application for summary judgment.

 

[25]      The rules pertaining to condonation are trite. Condonation will not be had for the mere asking.[4]  ‘(A)n applicant for condonation seeks indulgence from the court. Such applicant must set out fully and comprehensively, the reasons for the delay in not only timeously delivering the application for summary judgment, but also the delay in seeking condonation for non- compliance’.[5]  In Steenkamp and Others v Edcon Limited[6] the Constitutional Court (CC) noted that an overturned legal strategy alone was not sufficient to show good cause for granting condonation.  The Constitutional Court reaffirmed that:

 

“ The principle is firmly established in our law that where time limits are set, whether statutory or in terms of the rules of court, a court has an inherent discretion to grant condonation where the interests of justice demand it and where the reasons for non-compliance with the time limits have been explained to the satisfaction of the court.”

 

[26]      Citing Grootboom[7], the CC reiterated ‘that condoning a party’s non- compliance with the rules of court or directions is an indulgence. It involves a value judgment by the court seized with a matter based on the facts of that particular case.’[8]

 

[27]      In the present case the applicant’s explanation is first of all that there is no delay, as the dies would have expired on 30 January 2023, having regard to filing of an application for leave to appeal, and the dies non from 16 December to 15 January applicable in terms of rule 26.

 

[28]      The first difficulty with this construction is that the applicant did not make any application for leave to appeal. The second is that, even if it had done so, Rule 25(1) makes no mention of an application for summary judgment, and it does not cater for such eventuality as the applicant suggests. Similarly, rule 32 does not accommodate the filing of a replication. These are self- contained provisions which should be read within their meaning and contemplation.  The applicant attempts to ascribe to these provisions, a meaning that is not apparent from the rules themselves, and in so doing, take the scope and reach of the provisions too far.

 

[29]    It is worth noting that it was not until two months later, at the end of March 2023 that the applicant learnt that the replication had not been delivered. It adopted a supine and nonchalant approach to its own litigation, without following up on its instructions to the correspondent attorneys for two months. Remarkably, the applicant provides no explanation for this lapse.  

 

[30]      As if that was not enough, the applicant provides no explanation why for the remaining days in April which were not affected by the public holidays it did not deliver the replication. Subsequent thereto, the applicant states that it was advised by its correspondent attorneys that the respondents were not prepared to condone the late filing of the replication as the applicant was ipso facto barred. Ultimately, the applicant never delivered its replication and opted to bring this application.

 

[31]      In summary, the applicant avers that the delay ‘was due to the pressures of practice and inadvertence and not to any wilful default or bad faith or negligence on its part or its legal representatives.’ This is a contradiction in terms, more ‘like a cuttlefish spurting out ink’, in what appears to be an attempt to avoid providing a clear and plausible explanation. While the applicant admits its inattention, it in the same breath disavows any negligence on its part. In my view, this speaks to the applicant’s bona fides. The prejudice to the respondents is palpable. There can therefore be no merit to the applicant’s submission that the respondents would not be unduly prejudiced if the application succeeds. At any rate, the respondents aver that they continue to suffer prejudice, having incurred legal costs on the two previous applications, in circumstances where the applicant has made it clear under oath that it decided not to file a replication although it was aware that it should do so.

 

[32]      It is trite that if the other facts of a matter, taken in totality, render the application for condonation ‘obviously unworthy of consideration’, the court is not bound to consider prospects of success. There exists no basis in my view for the granting of condonation in these circumstances.  

 

[33]      As regards the applicant’s reliance on section 173 of the Constitution, it bears mentioning section 173 does not provide a blank cheque for the court to disregard existing laws but provides a mechanism to address gaps and ambiguities. Rules 25(1) and 26 admit of no ambiguity. Neither does rule 32 which the applicant seeks to conflate. The application falls to dismissed.

 

Costs

 

[34]      It remains for me to deal with the issue of costs. Notably, in this regard, the applicant’s tender for costs is conditional upon the application not being opposed. There can be no suggestion that the respondents’ opposition was frivolous, vexatious or unwarranted. The respondents pursued their opposition in good faith. The same cannot hold for the applicant. It embarked on a litigation strategy that was not only untenable, but also fatal to its application.  The consequence is that a period of 2 and half years went by while the applicant was exploring these options. All these did not yield the desired results. It makes no difference that the applicant avers that the decisions of the court in dismissing both the application for summary judgment and the application for rescission were wrong. The fact of the matter is that no real challenge has been mounted against those decisions. Neither is this court sitting as a court of appeal. As such, those decisions remain extant.

 

[35]      On the other hand, the respondents averred that the application was doomed to fail from the start as neither the facts nor the law support it. They further argued that they would still need to defend the action. All of these factors weigh in favour of a cost order against the applicants including costs of two counsel, the respondents further averred.

 

[36]      Arguing for the costs of two counsel, the respondents argued that given the importance of the matter, the size of the claim, and its future implications, it is clear that the application is not a ‘run of the mill’ application, which has implications on public funds. As such it was incumbent on the respondents to oppose the application. I agree.

 

Order

 

[37]      In the result, the following order is made:

 

a.    The application is dismissed with costs, including costs of two counsel where so employed.  

 

 

S MFENYANA

                JUDGE OF THE HIGH COURT OF SOUTH AFRICA

NORTH WEST DIVISION, MAHIKENG

 

APPEARANCES:

 

For the applicant                           :           A.D. Olivier instructed by Adrian B Horwitz & Associates

                                                                        c/o M.E. Tlou Attorneys & Associates

                                                            :          info@tlouattorneys.co.za

                                   

On behalf of the defendant.          :           A.T. Ncongwane SC assisted by MM Simelane instructed by Sifumba Attorneys

                                                            :           mafikeng@sifumbaattorneys.co.za

 

Reserved                                           :           3 June 2024

Delivered                                           :           13 May 2025

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