Lesedi Investment Properties (Pty) Ltd and Another v Sikhakhana and Others (2023/106751) [2025] ZAGPJHC 1166 (17 November 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 1166 | Noteup | LawCite sino index ## Lesedi Investment Properties (Pty) Ltd and Another v Sikhakhana and Others (2023/106751) [2025] ZAGPJHC 1166 (17 November 2025) Lesedi Investment Properties (Pty) Ltd and Another v Sikhakhana and Others (2023/106751) [2025] ZAGPJHC 1166 (17 November 2025) Download original files PDF format RTF format make_database: source=/home/saflii//raw/ZAGPJHC/Data/2025_1166.html sino date 17 November 2025 THE REPUBLIC OF SOUTH AFRICA IN THE HIGH COURT OF SOUTH AFRICA GAUTENG DIVISION, JOHANNESBURG CASE NO: 2023-106751 (1) REPORTABLE: NO (2) OF INTEREST TO OTHER JUDGES: NO (3) REVISED: DATE: 17/11/2025 SIGNATURE In the matter between: LESEDI INVESTMENT PROPERTIES (PTY) LTD First Applicant TLADI THABISO PUWANE Second Applicant And COLLETT DUDUZILE SIKHAKHANA First Respondent VALERIE NTSADI SIMONE Second Respondent ROAS ISMAIL AHMED Third Respondent NOMPUMELELO ESTER MADONSELA Fourth Respondent BUKHOSI ALPHEUS XIMBA Fifth Respondent MEMENG DOROTHY MATSETELA Sixth Respondent BRIJH DEWCHARAN Seventh Respondent EPHY JOYCE BUSISIWE SHEMBE Eighth Respondent LUCUS TSHABATSHABA TSHETLO Ninth Respondent JUDGMENT NKOENYANE AJ: Introduction [1]        This is an interlocutory application that turns on a fundamental point of procedure. The First and Second Applicants (the Defendants in the main action) seek condonation for the late delivery of a document dated the 3 rd of April 2024, which they style an "Exception." The Respondents (the Plaintiffs in the main action) seek an order striking out that document and dismissing the condonation application, contending that the Defendants are barred from pleading. [2]        The procedural history is largely common cause. The Plaintiffs issued combined summons in late 2023. After the Defendants filed a notice of intention to defend, the Plaintiffs served a notice of bar on the 25 th of March 2024. On the 3 rd of April 2024, the last day of the bar period, the Defendants delivered the impugned document. No further steps were taken until the Defendants launched this application for condonation on the 16 th of January 2025. Issues for Determination [3]        The following issues fall for determination: 3.1.      Whether the Defendants' application for condonation should be granted. 3.2.      Whether the document dated the 3 rd of April 2024 constitutes a valid notice of exception. 3.3.      If not, what the consequences are. The Legal Framework: The Nature of an Exception [4]        The starting point is the Uniform Rules of Court. Rule 23(1) permits a party to deliver an exception where a pleading is vague and embarrassing or lacks necessary averments. Rule 23(3) requires that the grounds for the exception be "clearly and concisely stated." [5]        The fundamental nature of an exception was succinctly articulated in Barclays National Bank Ltd v Thompson [1] . Van Heerden JA held that the function of a well-founded exception is "to dispose of the case in whole or in part" and thereby "to avoid the leading of unnecessary evidence at the trial." It is a mechanism for judicial efficiency, designed to resolve legal disputes at the pleading stage. [6]        Critically, an exception is a pleading. The distinction between a procedural notice and a pleading is dispositive in this matter. In Hill NO and Another v Brown [2] , the court provided essential clarity. It held: 6.1.      An exception is a pleading and, like a plea, "a properly drawn exception concludes with a prayer for relief" (at para [4]). 6.2.      A notice in terms of Rule 23(1)(a), which affords an opponent an opportunity to remove a cause of complaint, is "simply that, a notice." It is a precursor to a potential exception, not the exception itself, and it "claims no relief" and "does not call for adjudication" (at para [6]). 6.3.      Consequently, a Rule 23(1)(a) notice "is not a proper response" to a notice of bar issued in terms of Rule 26. To avoid being barred, a defendant must deliver a "pleading," which is either a plea or a formal exception (at para [8]). Analysis A. The Condonation Application [7]        The Defendants seek condonation for the late "setting down of the exception" and the "non-delivery of a formal exception." The test for condonation is trite and requires a consideration of the degree of lateness, the explanation offered, the prospects of success, and the prejudice to the other party. [8]        The Defendants' explanation that their counsel was not informed of a hearing date is unconvincing. It does not adequately explain the extensive delays in this matter, particularly the failure to timeously deliver a proper pleading in response to the notice of bar and the subsequent inertia. The Plaintiffs' contention that the Defendants' conduct is dilatory and tactical is not without merit. [9]        Most significantly, and for reasons that will become apparent, the defendants have no prospects of success on the merits of their underlying case. A complete absence of prospects is fatal to any application for condonation. It follows, therefore, that the application for condonation must be dismissed. B. The Validity of the 3 April 2024 Document [10]      I turn now to the core of the dispute. The document delivered on the 3 rd of April 2024 is divided into two parts. Part A alleges no cause of action, and Part B alleges that the particulars of claim are vague and embarrassing. Crucially, the document affords the Plaintiffs "a 15-day courtesy period" to remove the cause of complaint and contains no prayer for relief. [11]      Applying the binding authority of Hill NO , this document is not an exception. Its defining characteristic is that of a Rule 23(1)(a) notice. By providing an opportunity to amend and by omitting a prayer for the relief of striking out the pleading, it fails to meet the essential requirements of a pleading. It is, at best, a nullity in the context of being a response to a notice of bar. [12]      It follows that this document did not constitute a valid response to the plaintiffs’ notice of bar. The defendants were therefore duly barred from delivering their plea upon the expiry of the bar period on the 3 rd of April 2024. C. The Substantive Grounds of Exception [13]      Even if I were wrong on the procedural points which I am not and that the document in question could properly be regarded as a valid exception, its substantive grounds would nonetheless fail. On any assessment, the exception lacks merit. 13.1. Unquantified Damages: The Defendants argue that the Plaintiffs' claim for damages is vague and embarrassing because paragraph 42 of the particulars of claim states the quantum "cannot reasonably be quantified" before claiming specific amounts. This argument misunderstands Rule 18(10). 13.2. As held in Minister van Wet en Orde v Jacobs [3] , the Rule requires only such particulars as would enable the defendant "to estimate the quantum," not to verify its correctness. The Plaintiffs have pleaded a specific global amount and detailed the factual basis for the loss (unlawful ejection, demolition, loss of income). This is sufficient for the purpose of Rule 18(10). 13.3. Derivative Action: The Defendants' contention that the Plaintiffs requires leave to bring a derivative action under section 165 of the Companies Act is misconceived. The Plaintiffs' claims, as pleaded, are brought in their personal capacities as shareholders for damages suffered due to alleged fraudulent conduct, not on behalf of the First Defendant. 13.3. Restoration of Property (Prayer 6): The Defendants correctly cite Tswelopele Non-Profit Organisation v City of Tshwane [4] for the principle that the mandament van spolie is aimed at the restoration of physical control, "not its reconstituted equivalent." However, they err in characterising Prayer 6 as a pure spoliation claim. The Plaintiffs' cause of action is multifaceted, including claims for declaratory relief and damages. Prayer 6 can reasonably be interpreted as a claim for final relief, such as specific performance, flowing from their other causes of action, and is not excipiable on the narrow ground advanced. Conclusion [14]      The Defendants’ application for condonation is dismissed. The document dated 3 April 2024 does not constitute a valid exception and is accordingly struck from the record. Having failed to deliver either a plea or a valid exception in response to the notice of bar, the defendants remain barred from doing so. [15]      The Defendants' approach has been procedurally flawed from the outset and has served to delay the resolution of this matter. In these circumstances, the Plaintiffs are entitled to their costs on a punitive scale. Order [16]      The following order is made: 1.         The Applicants' application for condonation is dismissed. 2.         The document dated the 3 rd of April 2024, purporting to be a notice of exception, is struck out. 3.         The Applicants are ordered, jointly and severally, the one paying the other to be absolved, to pay the Respondents' costs of this application on the scale as between attorney and client. NKOENYANE AJ ACTING JUDGE OF THE HIGH COURT GAUTENG LOCAL DIVISION, JOHANNESBURG Date of Hearing:       12 August 2025 Date of Judgment:    17 November 2025 Appearances: For the Plaintiffs/Respondents: Adv. TJ Magano Instructed by: Cornelius JM Attorneys For the Defendants/Applicants: Adv. LF Taljaard Instructed by: Mmakola Matsimela Inc. [1] 1989 (1) SA 547 (A) para 19 [2] [2020] ZAWCHC 61 [3] 1999 (1) SA 944 (O) at 953B-C (often cited as 952I–953E) [4] 2007 (6) SA 511 (SCA) at para [24] sino noindex make_database footer start