Scaw South Africa (Pty) Ltd v VIP Recycle CC (006276/2022) [2025] ZAGPJHC 1335 (25 August 2025)

begin wrapper begin container begin header begin slogan-floater end slogan-floater - About SAFLII About SAFLII - Databases Databases - Search Search - Terms of Use Terms of Use - RSS Feeds RSS Feeds end header begin main begin center # South Africa: South Gauteng High Court, Johannesburg South Africa: South Gauteng High Court, Johannesburg You are here: SAFLII >> Databases >> South Africa: South Gauteng High Court, Johannesburg >> 2025 >> [2025] ZAGPJHC 1335 | Noteup | LawCite sino index ## Scaw South Africa (Pty) Ltd v VIP Recycle CC (006276/2022) [2025] ZAGPJHC 1335 (25 August 2025) Scaw South Africa (Pty) Ltd v VIP Recycle CC (006276/2022) [2025] ZAGPJHC 1335 (25 August 2025) Download original files PDF format RTF format make_database: source=/home/saflii//raw/ZAGPJHC/Data/2025_1335.html sino date 25 August 2025 REPUBLIC OF SOUTH AFRICA IN THE HIGH COURT OF SOUTH AFRICA GAUTENG LOCAL DIVISION, JOHANNESBURG CASE NO : 006276/2022 (1)  REPORTABLE: NO (2)  OF INTEREST TO OTHER JUDGES: NO (3)  REVISED: NO In the matter between: SCAW SOUTH AFRICA (PTY) LTD                         Plaintiff/Respondent And VIP RECYCLE CC                                                    Defendant/Applicant Neutral Citation : Delivered: By transmission to the parties via email and uploading onto Case Lines the Judgment is deemed to be delivered. JUDGMENT SENYATSI J [1]  This application requests condonation for non-compliance with the court order dated 29 February 2024, which directed the applicant to submit its discovery affidavit within three days. The defendant submitted a discovery affidavit on 26 June 2024, after the specified deadline. For consistency, the parties are identified as plaintiff and defendant, as in the main action. [2]  In July 2022, the plaintiff initiated a claim against the defendant for R1,232,821.85, pertaining to goods sold pursuant to a written agreement. The defendant subsequently filed a notice of intent to defend in August 2022. [3]  Despite notification of the plea deadline, the defendant was barred from filing after ignoring the notice of bar. [4]  With the Court's permission granted on 19 April 2023, the defendant submitted its plea in June 2023. Pleadings were completed by July 2023. [5]  The defendant acknowledges a debt of R1 232 821.85 to the plaintiff for goods received but asserts a verbal agreement from September 2019 permitted repayment through supplying products. The plaintiff denies this agreement and any refusal to accept such products. [6]  On 8 August 2023, the plaintiff notified the defendant under Rule 35 to disclose all supporting documents and provide discovery by 6 September 2023. The defendant did not respond or submit a discovery affidavit. [7]  On 2 October 2023, the plaintiff’s attorneys gave the defendant an additional 5 days to file its discovery affidavit via letter. The defendant’s attorneys did not reply. [8]  On 1 November 2023, the plaintiff requested discovery from the defendant, who did not respond or oppose. [9]  On 29 February 2024, I ordered the defendant to file its discovery affidavit by 5 March 2024, allowed the plaintiff to seek striking out of the defence if missed, and directed the defendant to pay the plaintiff's application costs on an attorney and client basis. [10]  On 4 March 2024, the plaintiff’s attorneys notified the defendant’s attorneys that the defendant’s discovery affidavit was due per court order. The defendant’s attorney, James Mannering, replied on 5 March 2024, stating this was his first notice of such an order. This is notwithstanding having received the plaintiff’s application to compel on 1 November 2023. He went on to state further that he was "occupied with an urgent matter since last Thursday, which will continue tomorrow” but that "[Despite this, I have made immediate efforts to draft the discovery affidavit and gather the necessary items for inclusion" and that he would "serve as soon as possible." [11]  On 7 March 2024, the plaintiff’s attorneys replied to the defendant’s attorneys' 5 March 2024 email, noting that the defendant had been informed of the requirement to deliver its discovery affidavit for six months and had not responded to the discovery notice, the 2 October 2024 letter, or the application. [12]  On 13 March 2024, the plaintiff’s attorneys dispatched an additional letter to the defendant’s attorneys, enclosing a copy of the court order and observing that the defendant had not yet complied with the terms of the order. [13]  On 27 March 2024, the plaintiff applied under Rule 35(7) to strike out the defendant’s defence and recover attorney-client costs. The unopposed hearing was set for 27 June 2024, with notice served to the defendant on 18 April 2024. [14]  On 26 June 2024, the defendant filed a discovery affidavit listing only prior pleadings and offered to pay the plaintiff’s strike out application costs incurred to that date. [15]  The plaintiff’s attorneys informed the defendant's attorneys that, because of the late affidavit and lack of explanation for ignoring the court order, they would apply to strike out and seek punitive costs. The defendant was advised that any request for relief must be supported by a substantive application explaining its repeated non-compliance and prior position stated in its 5 March 2024 email. [16]  On 26 June 2024, the defendant submitted a notice opposing the plaintiff’s strike out application; however, the notice was dated 26 June 2023. The parties subsequently agreed to a draft order, which became an order of Court on 27 June 2024. This order postponed the plaintiff’s application sine die, directed the defendant to file its condonation application by 3 July 2024, and noted the defendant’s tender of costs. The condonation application was filed on 3 July 2024. [17]  In this application, the defendant asserts that after receiving the plaintiff’s Rule 35(1), (6), (8), and (10) notice on 8 August 2023, but on an unspecified date, the defendant’s attorney, Mr Botha, "made enquiries with the Defendant's representative, Mr Naas Grobler, and advised him to peruse his records, and to gather any documentary evidence which would be required to be discovered." Subsequently, and on another unspecified occasion, Mr Grobler reportedly agreed to review his records. The defendant then proceeds to state directly that “ [u]pon further enquiries, Mr Grobler advised that there were no documents to be discovered", without providing any dates, corroborating correspondence, or any further details. [18]  The defendant’s “explanation” for its failure to comply with the Rules and the court order is as follows: "... Mr Grobler, on behalf of the Defendant, had repeatedly intimated that there may have been delivery notes in respect of product which was delivered, or tendered to be delivered to the Plaintiff in terms of the verbal agreement concluded between the parties during September 2019. Due to Mr Groblers move to the Western Cape he experienced difficulties in coordinating the necessary searches for the aforesaid, especially going as far back as 2019, which had caused an inevitable delay.” [19]  The defendant contends that, since its defence relies on an oral agreement, it was not required to produce further documents under the court order and Rule 35 notice, and its delayed response should be excused on these grounds. [20]  The plaintiff opposes condonation, stating that the defendant has not provided a complete explanation for their non-compliance with the court order and Rule 35 discovery. The plaintiff requests a punitive costs order and, if the application is unsuccessful, also asks for the defendant’s defence to be struck out with costs on a punitive scale. [21]  The key question is whether the defendant's explanation is sufficient for condonation. [22]  Under Uniform Rule 27(1), if parties do not agree, the court may, on application with notice and good cause, extend or shorten any time period set by the rules or by a court order for actions in proceedings. [1] There is no deadline for seeking condonation, and the court has discretion to grant or deny condonation for late compliance with procedural requirements. [23] The defendant must provide a full explanation for the delay and show a bona fide attempt to comply with the procedural rules. The test in considering the condonation application is that the court has a broad discretion to grant condonation for non-compliance with procedural rules, provided there is good cause. [2] The defendant must provide a full explanation for the delay and show a bona fide attempt to comply with the procedural rules. [24]  The discretion, while extensive, must be exercised judicially, considering the fairness to both parties and in accordance with established legal principles. [3] Factors relevant to granting condonation include the degree of non-compliance, the explanation provided (which must cover the entire period of the delay and must be a full, detailed and accurate account of the causes of the delay), [4] the applicant’s prospects of success in the matter, and the potential prejudice to the opposing party, including its interest in finality. [25]  In dealing with the meaning of “good cause” for the delay, in Silber v Ozen Wholesalers (Pty) Ltd [5] Schreiner JA said in relation to procedural relief: “ The meaning of “good cause” in the present sub-rule, like that of the practically synonymous expression ‘sufficient cause’ which was considered by this Court in Cairn’s Executors v Gaarn, 1912 A.D. 181 , should not lightly be made the subject of further definition. For to do so may inconveniently interfere with the application of the provision to cases not at present in contemplation. There are many decisions in which the same or similar expressions have been applied in the granting or refusal of different kinds of procedural relief. It is enough for present purposes to say that the defendant must at least furnish an explanation of his default sufficiently full to enable the Court to understand how it really came about, and to assess his conduct and motives.” Good cause’ usually comprehends the prospects of success on the merits of a case, for obvious reasons. [6] [26]  Our courts have consistently refrained from attempting to formulate an exhaustive definition of what constitutes “good cause” b, because to do so would hamper unnecessarily the exercise of the discretion. [7] The court will refuse to grant the application where there has been a reckless or intentional disregard of the rules of court, or the court is convinced that the applicant does not seriously intend to proceed. [8] The application must be made bona fide and not made with the intention of delaying the opposite party’s claim. [9] A litigant who  asks for indulgence should also act with reasonable promptitude, be scrupulously accurate in his statement to the court ,and other neglectful acts in the history of the case are relevant to show his attitude and motives. [10] [27]  The other requirement is that the applicant should satisfy the court on oath that he has bona fide defence [11] or that his action is clearly not ill-founded. Put differently, the defence must be based upon the facts which, if proved, would constitute a defence. [12] [28]  In Ferris v FirstRand Bank Ltd , the Constitutional Court determined that lateness is not the sole factor when considering whether to grant an application for condonation. The court stated that the relevant test is whether granting condonation serves the interests of justice, with factors such as the applicant's prospects of success and the significance of the issue being pertinent considerations. [29]  The defendant failed to act within required timeframes, missing the deadline for submitting its plea after filing notice to defend in August 2022. As a result, the plaintiff barred the defendant per court rules. The defendant filed its plea only after the court lifted the bar in April and June 2023, causing delays in the case. [30]  The defendant ignored the Rule 35 discovery notice in August 2023. After correspondence between law firms and a five-day extension, the defendant still did not submit the discovery affidavit. [31]  The defendant ignored a November 2023 notice to file a discovery affidavit, prompting my February 2023 order for submission within three days. This conduct indicates noncompliance with court rules and suggests an attempt to delay case resolution. [32]  The defendant has not shown good cause for missing the discovery deadline. Their representative’s vague explanation lacked dates or specifics and only claimed Mr. Grobler said no documents were relevant. This is inadequate; if no delay was intended, an affidavit could have clarified matters. I therefore reject this justification. [33]  This section evaluates whether the defendant's affidavit supports a viable defence, considering the case history and submitted documents. The claim relies on a written agreement, which usually requires written amendments. It is unnecessary at this stage to decide on the existence of the alleged oral agreement, though its potential relevance to the defence is noted. After review, the defendant’s defence appears unlikely to succeed at trial. Proceedings have been delayed due to the defendant’s handling of pleadings since 2022, and a cost order may not remedy the resulting prejudice. The defendant’s actions suggest a pattern of prolonging litigation without resolution. Therefore, the condonation application should also not succeed for this reason. [34]  The plaintiff requested the court to strike out the defence due to the defendant's non-compliance with my order of 29 February 2024. This application, made in April 2024 after the defendant failed to comply, was served timely. The defendant did not promptly file a notice of intention to oppose but eventually served one late on 26 June 2024. [35]  After being ordered to provide a discovery affidavit, the defendant was notified by the plaintiff’s attorneys on 4 March 2024 that discovery was due on 5 March 2024. The defendant ignored this notice and failed to file the affidavit as required. For six months, the defendant knew it had no documents to support its defence, making its failure to file inexcusable. The claim that staff were searching for documents on Mr. Grobler's instruction is unconvincing, since the defence did not depend on any documents. The defendant should have promptly filed an affidavit stating there were no documents to discover. [36]  Rule 35(7) allows a party to apply to court if another party fails to provide discovery or inspection as required. The court can then order compliance and, if not met, may dismiss the claim or strike out the defence. This rule ensures all parties comply with litigation procedures, giving the court discretion to enforce compliance. [37]  I have not received arguments from either party's counsel regarding the strike out of the defence. The plaintiff’s application has not been scheduled since its postponement sine die . Therefore, I will not address the strike out application and will leave it for another court to consider. [38]  Finally, I address the request for costs to be awarded on a punitive scale as between attorney and client. Upon review of the case history and the defendant's conduct, which I find to be without justification, I am of the view that a punitive costs order is warranted as an appropriate sanction. Accordingly, I concur with the plaintiff's submission in this respect. Order [39]  The application to condone late filing of the discovery affidavit is dismissed, and the defendant must pay attorney-client and counsel costs. ML SENYATSI JUDGE OF THE HIGH COURT OF SOUTH AFRICA GAUTENG DIVISION, JOHANNESBUR G DATE APPLICATION HEARD :  15 April 2025 DATE JUDGMENT HANDED DOWN : 25 August 2025 APPEARANCES Counsel for the Applicant: J E Mannering Instructed by: BMV ATTORNEYS Counsel for the Respondent: Adv. M W Verster Instructed by: Eversheds Sutherland (SA) Inc [1] Gool v Policansky 1939 CPD 386 at 390 [2] Botha t/a Tax Consulting SA v Renwick (2019/35217) [2021] ZAGPJHC 37 (13 April 2021) at paras 16 to 27, Du Plooy v Anwes Motors (Edms)Bpk 1983 (4) SA SA 212 (O) at 216H-217D [3] Du Plooy v Anwes Motors supra at footnote 2 at 217B [4] Van Wyk v Unitas Hospital and Others [2007] ZACC 24 ; 2008 (4) BCLR 442 (CC); 2008 (2) SA 472 (CC) at para 22 & Unitrans Fuel & Chemical (Pty) Ltd v Dove-Co Carriers CC [2010] JOL 25743 (GSJ) at para 7. [5] 1954 (2) SA 345 (A) at 352H-353A [6] See Chetty v Law Society, Transvaal 1985 [2] SA 756 [A] at 765 B­C.] [7] Silber v Ozen Wholesalers (Pty)Ltd 1954(2) SA 345(A)at 353A; Ford v Groenewald 1977(4) SA 224(T) at 225E-G; Erasmus ,Superior Court Practice 2 nd Ed D1-323 [8] Burton v Barlow Rand Ltd 1978(4) SA 794(T) at 797D; [9] Ingosstrak v Global Aviation Investments(Pty) Ltd 2021(6) SA 352 (SCA) at para 21. [10] Duncan t/a San Sales v Herbor Investment (Pty) Ltd 1974 (2) SA 214 (T) at 216E-F. [11] Santa Fe Sectional Title Scheme No 61/1994 Body Corporate v Bassonia Four Zero Seven CC 2018 (3) SA 451(GJ) at 454F-G. [12] Ford v Groenewald 1977(4) SA 224(T) at 226A-C; Flugel v Swart 1979(4) SA 493 ( E )  at 497H sino noindex make_database footer start