INTRODUCTION

Procedural compliance plays a critical role in ensuring the orderly and efficient administration of justice. The Uniform Rules of Court are used in civil litigation to impose clear timelines for the filing of pleadings. Litigants who fail to comply with these timelines may face serious consequences, including being barred from delivering further pleadings.

There is an increasing concern about the tendency of organs of state to delay filing their papers during court proceedings without providing adequate justification. Such conduct often results in unfair prejudice to the litigant and undermines public confidence in the principle that all parties are equal before the law.

In Minister of Police v Petrus Dikgang Gareng (unreported case number 2815/24) [2025] ZANWHC 113 (3 July 2025)¹, the North West High Court (‘’the Court’’) reaffirmed that a party seeking the upliftment of a bar must meet strict requirements before the Court will exercise its discretion in their favour. The judgment highlights the importance of providing both a satisfactory explanation for procedural delays and a properly substantiated defence to condone the late filing of court documents.

BACKGROUND OF THE CASE

The matter arose from a civil claim instituted by Petrus Dikgana Gareng (“the Respondent”) following his arrest.² After the summons was served, the Minister of Police (“the Applicant”) delivered a Notice of Intention to Defend. However, the Applicant failed to deliver its plea within the time period prescribed by the Rules.

On 19 August 2024, the Respondent served a Notice of Bar in terms of Rule 26 of the Uniform Rules of Court, affording the Applicant an additional 5 (five) days within which to file its plea. Rule 26 provides that where a party fails to deliver a pleading within the prescribed time period and remains in default after service of a Notice of Bar, that party is automatically barred from delivering the pleading.³ Despite being afforded this further opportunity to comply, the Applicant once again failed to deliver its plea and was accordingly ipso facto (by the very fact) barred from the proceedings.⁴

As a result of the Applicant’s continued failure to deliver its plea, the Respondent proceeded to apply for default judgment and a trial date. A Notice of Set Down was subsequently served on the State Attorney’s office on 25 September 2024. Only thereafter, on 15 October 2024, did the Applicant launch an application seeking the upliftment of the bar.⁵

The Court retains a discretion to grant such relief, provided that the Applicant demonstrates “good cause” for the indulgence. South African Courts have consistently held that two key requirements must be satisfied before a Court will consider granting an upliftment of bar application:

i) The Applicant must provide a reasonable explanation for the default; and

ii) The Applicant must show a bona fide defence to the claim that carried some prospect of success.

The Respondent opposed the application on several grounds, including the inadequacy of the founding affidavit, the reliance on hearsay evidence, and the Applicant’s failure to demonstrate either a satisfactory explanation for the delay or the existence of a bona fide defence.⁶

DEFICIENCIES IN THE FOUNDING AFFIDAVIT

The founding affidavit was deposed to by an Assistant State Attorney who had only become involved in the matter at a later stage of the proceedings. The Respondent contended that the deponent lacked personal knowledge of the material events of the matter and failed to provide supporting evidence, including confirmatory affidavits.⁷

The Court noted that the Applicant’s affidavit lacked the necessary factual foundation; the State Attorney, as the deponent, did not explain how the information contained in the affidavit had been obtained, and no confirmatory affidavits were provided in support of this information. As a result, much of the information relied upon constituted inadmissible hearsay evidence.

In motion proceedings, an Applicant must make out its case in the founding affidavit. The Court emphasised that it is not the function of the Court to speculate or supplement deficiencies in a litigant’s papers.⁸

FAILURE TO PROVIDE A REASONABLE EXPLANATION FOR THE DELAY ⁹

The Applicant sought to justify the delay on the basis that the arresting officer’s statement was missing from the police docket, which allegedly prevented the preparation of a plea.

The Court found this explanation to be vague and incomplete. The Applicant failed to provide critical information, including when it first became aware that the statement was missing and what steps were taken to locate it. Furthermore, there was no explanation as to why the statement was not attached to the founding affidavit once it had allegedly been obtained. The Applicant also failed to attach a draft plea, which would have demonstrated a genuine intention to defend the claim.

The Court further noted that there were extended periods of unexplained inactivity between the various procedural steps. These omissions undermined the credibility of the Applicant’s explanation for the delay.

FAILURE TO DEMONSTRATE A BONA FIDE DEFENCE ¹⁰

The Court also found that the Applicant failed to establish the existence of a bona fide defence. Although the Applicant referred to statutory provisions such as the Criminal Procedure Act,¹¹ it failed to provide any factual basis explaining how those provisions related to the circumstances of the arrest.

A bare reference to legal provisions, without supporting facts, does not disclose a triable issue. The Court held that a bona fide defence must raise a genuine dispute of fact or law that, if proven at trial, would constitute a defence to the claim. In the absence of any supporting factual material or a draft plea, the purported defence was regarded as vague and speculative.

CONCLUSION

The Court upheld the point in limine and dismissed the Applicant’s application for the upliftment of the bar.

This judgment is particularly significant in reinforcing that applications for the upliftment of a Bar are not granted lightly. It illustrates that Courts will scrutinise both the procedural conduct of litigants and the evidentiary foundation of their applications, especially where delays are unexplained and defences are not properly articulated.

This judgment reinforces the importance of strict compliance with procedural rules. Courts are generally reluctant to come to the assistance of litigants who disregard procedural timelines or fail to properly prepare their applications.

The decision also highlights the critical role of properly drafted founding affidavits in motion proceedings. Where an affidavit is based largely on hearsay and lacks supporting documentation, it is unlikely to satisfy the evidentiary standard required by the Court.

Furthermore, the case demonstrates that the existence of a bona fide defence must be substantiated with factual material. Mere assertions or references to statutory provisions are insufficient. Where a litigant fails to provide both a satisfactory explanation for procedural non-compliance and a properly substantiated defence, courts are unlikely to exercise their discretion to grant indulgences such as the upliftment of a bar.

Please note: Each matter must be dealt with on a case-by-case basis, and you should consult an attorney before taking any legal action.