Ruling emphasises South African courts’ discretion over filing timelines

Ordinarily, non-compliance with the prescribed timelines in the Practice Manual results in the dismissal or striking out of a claim or defence. However, this judgment emphasises that a court can first satisfy itself as to the merits of a claim or defence before merely dismissing or striking it out due to late filing. It is not yet clear whether the ruling will be considered and applied in future judgments or if these considerations will only be relevant to similar motion proceedings.

The High Court’s judgment

Capitec Bank Limited approached the court seeking a dismissal of a recission application brought by Lerato Mangena, which would cancel a contract she had entered into with the bank. Capitec argued that the application should be dismissed because Mangena had failed to submit her heads of argument in the recission application within the prescribed time limit.

The Practice Manual of the Gauteng Local Division of the High Court of South Africa authorises an application to the High Court for an order compelling a party who has failed to timeously file heads of argument in an opposed motion to do so within a period of no fewer than five days. Failing to do so, the defaulting party’s claim or defence will be dismissed or struck out.

The court, however, elected not to follow this process. In reaching its decision (6 pages / 191KB PDF), the court took into account the nature of both action and motion proceedings. It found that the strike-out and dismissal procedures are well-suited to action proceedings because no evidence has been led at the time of referral, whereas the affidavits in motion proceedings contain the evidence necessary to sustain the claim or defence.

As such, the rules relating to a claim being dismissed or a defence being struck out are important procedural tools in action proceedings because they enable a court to confine parties with frivolous claims or defences that have instituted proceedings as a mere delay tactic. Such parties try to stall proceedings through sheer non-compliance with the rules designed to move a matter forward to trial. This means that the court need not have regard to the merits of the action or the strength of the claim or defence.

In dismissing a claim or striking out a defence in motion proceedings, however, the court does so at a stage where all the evidence believed to be relevant to support the claim or defence has been placed before it. The court in this instance adopted the position that, under these circumstances in motion proceedings, “a court is not at liberty simply to ignore the affidavits and to dismiss a claim or strike out a defence merely because one of the parties has failed to take an important procedural step”.

Judge Stuart Wilson held that the court must go one step further and satisfy itself that, based on the evidence placed before it, the claim or defence lacks merit and ought to be dismissed and struck out for that reason alone –not merely due to non-compliance with a procedural rule.

With reliance on a prior case involving two joint liquidations heard in the Gauteng Division, the judge held that a court’s general duty to apply its mind to relevant evidence and consider whether or not a claim or defence is meritorious before dismissing or striking it out must apply in all motion proceedings.

Merits considered

Putting into practice its adopted principle, the High Court considered the evidence placed before it before simply dismissing Mangena’s recission application due to her failure to comply with procedural timelines in the Practice Manual.

Mangena had sought to rescind an order of the court dated 19 August 2021 in which the court granted a money judgment against her, and postponed Capitec’s claim for special execution on her house until proper service of the summons on Mangena. The court found that this approach was inconsistent with the general rule laid down in the 2018 ruling on a dispute involving ABSA Bank.

The general rule provides that judges of this division will not entertain and determine an application for a money judgment on a mortgage credit agreement separately from the application to execute against the mortgaged property. Judge Wilson said the 2021 judgment had no good reason to depart from the general rule. As a result, the High Court found that Mangena’s recission application was one of merit.

After considering the evidence placed before it, the court was satisfied that Mangena’s recission application had merit and consequently dismissed Capitec’s application to dismiss it, placing the application on the opposed motion roll for hearing.

Co-written by Brendan Whyte and Nombasa Mazwai of Pinsent Masons.