SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy





THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Reportable
Case no: 773/23

In the matter between:

GERDA RUTH PRINGLE APPELLANT

and

JOSEPH MATOME MAILULA RESPONDENT

Neutral citation: Pringle v Mailula (773/2023) [2024] ZASCA 146 (25 October
2024)

Coram: MOKGOHLOA, MABINDLA -BOQWANA and KEIGHTLEY JJA and
BAARTMAN and MASIPA AJJA

Heard: 19 September 2024

Delivered: This judgment was handed down electronically by circulation to the
parties’ representatives by email, publication on the Supreme Court of Appeal
website and release to SAFLII. The date and time for hand -down of the judgment is
deemed to be 11h00 on 25 October 2024.

Summary: Protection from Harassment Act 17 of 2011 (the Act) – whether the
magistrates’ court had powers to consider new evidence in terms of ss 9(2) and (3)
of the Act – whether in accepting further evidence the magistrates’ court
compromised the respondent ’s right to a fair trial – whether associating someone
with ‘Verwoerd’ amounts to racial slur – did racial slur and electronic correspondence
amount to harassment.


ORDER


On appeal from; Limpopo Division of the High Court, Polokwane (Naude - Odendaal
J and Mdhluli AJ, sitting as a court of appeal):

1 The appeal is upheld with no order as to costs.

2 The order of the high court is set aside and replaced with the following:

‘The appeal is dismissed with no order as to costs.’

JUDGMENT


Baartman A JA ( Mokgohloa, Mabindla -Boqwana, Keightley JJA and Masipa
AJA concurring):

[1] The Limpopo Division of the High Court, Polokwane (the high court) set aside
a harassment order, granted in terms of the Protection from Harassment Act 17 of
2011 (the Act) by the magistrate at Modimolle (the magistrates’ court ). In setting
aside the order, the high co urt held that the magistrates’ court had accepted further
evidence in circumstances that violated the respondent’s right to a fair hearing. The
appeal is against that order with the special leave of this Court.

[2] At the times relevant to this judgment , the appellant, Ms Gerda Ruth Pringle,
was the principal of E […] Primary School (the school) in Modimolle and the
respondent, Mr Joseph Matome Mailula’s minor child was a pupil at the school. Both
parties were members of the school’s governing body (the SGB ), the appellant ex
lege, and the respondent, as an elected parent. Soon after he became a member of
the SGB, the respondent addressed email correspondences to the appellant seeking
information regarding the operations of the SGB. The appellant answered some of
the emails and referred others to the chairperson of the SGB . In the answering
affidavit, the respondent annexed, among others , email correspondence A A11,
dated 31 May 2021 at 07h26, addressed to the appellant in which he stated:

‘I have asked you on numerous occasions to give me access to school
information and you have either given me the run around or deferred the
matter to the SGB . . . I will be launching a formal complaint with your
employer regarding your unprofessional conduct as the principal of the
school.’

[3] Matters came to head at the SGB meeting on 1 June 2021 (the June meeting)
where the majority of the members resolved to suspe nd the respondent. He did not
take kindly to his suspension and went into a rage pointing his finger at Mr Chisi
calling him a joke; he referred to three white SGB members, including the appellant,
still finger pointing, ‘I will deal with Verwoerd’s kids’ and, pointing at the remainder of
the SGB members, threatened to deal with them as well.

[4] The appellant considered the remark ‘I will deal with Verwoerd’s kids’
defamatory, racist and a threat . She removed the respondent from the SGB’s
WhatsApp group and blocked his cellular telephone number on her personal cellular
telephone. Undeterred, the respondent used an alternate cellular telephone number
to contact the appellant. There after, and on 3 June 2021, the appellant approached

to contact the appellant. There after, and on 3 June 2021, the appellant approached
the magistrates’ court and applied for an order in terms of the Act. In her application,
on the prescribed form, the appellant gave the following as grounds for the order she
sought:

(a) despite a request from the SGB, the respondent continued to contact
her, even using an alternate number after she had blocked him on her
personal phone,

(b) on 1 June 2021, the respondent had threatened, pointing in her
direction, that he ‘…will deal with Verwoerd’s kids’.

(c) he made false accusations against her to the Department of Education
and thereby brought her into disrepute with her employer.

(d) the appellant further alleged that she had felt threatened by the
repetitive electronic communications and threats. Being in the respondent’s
presence was also threatening to her.

(e) she had laid criminal charges against the respondent and annexed her
affidavit in those proceedings in which she alleged among others that, ‘The
suspect is a very dangerous individual and will attack without provocation’.

In the magistrates’ court

[5] On 3 June 2021, the magistrate granted an interim order in the appellant’s
favour, with the return date set for 14 June 2021, in the following terms:

‘3.1 The respondent is prohibited by this court from –
. . .
(b) enlisting th e help of another person to engage in the harassment of the
complainant and/or above related person/s; and/or

(c) committing any of the following act/s:

(i) Not to communicate with or contact the applicant/applicant’s children
directly or indirectly neither via social media nor electronically.

(ii) Not to be in the vicinity of the applicant’s house and or person.

(iii) Not to threaten the applicant directly or indirectly. Not to attend any
SGB meetings at school.
. . .
3.2 (a) The respondent can contact the chairperson of the SGB regarding his
child’s academic [performance].’

[6] On the return date, the respondent appeared in person and the magistrate
reconsidered the order prohibiting the respondent from attending SGB meetings and
removed that prohibition. Thereafter, the matter was postpon ed to afford the
respondent an opportunity to seek legal representation. The respondent deposed to
his answering affidavit on 21 July 2021 but filed it on 16 August 2021.

[7] In his answering affidavit, he alleged that the June 2021 meeting had not
been called to ‘specifically address problems arising from emails and letters sent by
[him]’, instead, it was to deal with his complaint s against members of the SGB, as
well as complaints against him from members of the SGB. He confirmed his
temporary suspension from the SGB pending referral to a tribunal consisting of
independent specialists. He denied that his communications with the app ellant had
been either ‘oppressive or unreasonable’, instead, it was ‘to enable [the respondent]
to discharge [his] duties as a duly elected member of the SGB, and the parent of a
pupil of E[...] Primary school’. The respondent further annexed AA3-AA15 comprising
email correspondence with the appellant. He described the conduct complained of
as being at best, ‘unattractive’ and denied that the appellant had met the test for an
interdict.

[8] On 16 August 2021, the appellant filed a comprehensive replying affidavit
that included a recording of the June 2021 meeting which the respondent had
attached to email correspondence to her. She alleged that the recording had been
edited and challenged the respondent to place the full recording before the court. He
did not. The appellant had, in her replying affidavit, set out the time frame and
subject matter of AA7 to AA15, emails that the respondent had annexed to his

subject matter of AA7 to AA15, emails that the respondent had annexed to his
answering affidavit. The following appears from the summary:

(a) On 28 May 2021, the respondent emailed her at 07:21 ‘requesting
demographic records’. At 07:54 another email was sent , seeking further
information. At 08:39 the respondent sent an email ‘…again demanding
records’. At 09:01 he sent an email ‘requesting the school’s PAIA manual’,
and at 09:05 another one ‘enquiring about lawyers appointed by the SGB’. On
the same day, the appellant forwarded ‘all emails’ from the respondent to the
SGB members seeking advice on how to respond.

(b) On 31 May 20 21 at 06:15, the respondent started with an email to the
appellant ‘regarding [his son’s] report’. The appellant responded at 06:53. At
07:02 the appellant referred ‘the respondent’s enquiry to the SGB members
and requested members to address all matters c oncerning the SGB to the
SGB’. At 07:26, the respondent sent an email accusing the appellant ‘of a
corrupt relationship with certain SGB members and threating [her] with formal
complaints’. At 12:39 ‘Email from the respondent to SGB members
questioning the proposed SGB meeting requesting answers from [her]’. At
12:42 the appellant responded to the respondent’s mail. At 17:11 ‘Email from
the respondent to SGB members – respondent does not acc ept the school’s
code of conduct for SGB members’.

(c) On 1 June 2021 at 08:23 in another email, the respondent accused the
appellant of ‘denying [him] access to the school and access to information’.
On 2 June 2021 at 06:05 the respondent sent an email to the appellant
enquiring into the appellant’s ‘position as a board member of FEDSAS ’. At
06:19 another email from the respondent was sent to the appellant insinuating
‘election t ampering’. At 06:23, in another email, the respondent enquired
about ‘an alleged incident concerning his child’ . Later the same day at 10:51
the respondent requested ‘the school’s code of conduct for learners and the
school’s language policy’ from the appellant. At 12:26 and 12:35 the
respondent sent emails ‘to the Department q uestioning his suspension from

respondent sent emails ‘to the Department q uestioning his suspension from
the SGB’.

[9] Annexed to the replying affidavit was also a victim impact statement compiled
by Rhoda van Niekerk, a clinical social worker and criminologist in private practice.
She described the impact the respondent’s conduct had on the appellant as follows:

‘The impact of the victimisation events:

As victim of the incidents, [the appellant] encountered that [the respondent]
disregarded the law and the basic human rights of people. She experienced
emotional distress during and after this traumatic events. She was confronted
with fear, anxiety, nervousness, frustration, and powerlessness. As victim she
experienced the following psychological reactions:

• Increase in the realisation of personal vulnerability.

• The perception of the world as unfair and incomprehensible.

The experience of victimisation resulted in an increasing fear on the part of
the victim, and the spread of fear within the school system.’

[10] At the magistrates’ court hearing, of 18 August 2021, both parties were legally
represented, and the respondent raised the following points in limine:

(a) the appellant failed to prove repetitive behaviour on his part and
therefore she was not entitled to the relief sought;

(b) the appellant impermissibly introduced new facts in reply seeking to
introduce a new cause of action;

(c) the appellant should have sought the court’s permission to amplify her
case in reply; and

(d) he would be prejudiced if the new facts were allowed as he has had no
opportunity to respond thereto.

[11] After hearing argument, the magistrate dismissed the points in limine, allowed
the replying affidavit and gave the respondent an opportunity to apply for a
postponement if he needed time to deal with ‘new or further evid ence’ in the
appellant’s replying affidavit. The respondent’s attorney, after an adjournment to
consult, indicated that the respondent was ready to proceed and would not seek a
postponement due to possible costs implications.

[12] The matter proceeded with the appellant leading the evidence of the
chairperson of the SGB ( Mr Chisi ) who confirmed that the respondent had been
suspended at the June 2021 meeting whereupon the respondent had reacted by
calling him a ‘joke’ and pointing fi ngers at him saying, ‘I am going to deal with you
and after dealing with you I am going to deal with these children of Verwoerd’ . As he
made those remarks, the respondent pointed at the white colleagues that were
present at the meeting. The appellant was o ne of three white colleagues. The
respondent was very aggressive. The recording of the June 2021 meeting was
played in court, and Mr Chisi identified the respondent as the person referring to him
as a joke in the recording.

[13] In cross-examination, Mr Chisi maintained that the respondent’s suspension
had been necessary to protect members of the SGB. He insisted that the respondent
had bombarded them with email correspondence. The appellant closed her case
after leading Mr Chisi’ s evidence. The respondent closed his case without leading
any evidence. The magistrate confirmed the interim order as follows:

‘In terms of the protection order, the respondent is prohibited by this court
from engaging or attempting to engage in the haras sment of number one, the
complainant.

B. Enlisting the help of another person to engage in the harassment of the
complainant.

C number 3. Committing any of the following acts:

1. Not to engage in electronic communication aimed at the applicant including
communication through social media.

2. Not to send electronic mail or causing the delivery of electronic mail to the
applicant.

3. Not to threaten the applicant with phycological, mental or physical harm;
and

4. The court impose the following additional condition that I am of the view is
necessary to protect and to provide for safety and wellbeing of the
complainant, to wit, not to enter the house where the applicant resides.

5. No order as to costs.’

In the high court

[14] On appeal, the high court did not deal with the merits of the application,
instead, it criticised the magistrates’ court’s handling of the points in limine. The high
court upheld the appeal and set aside the order holding that the respondent’s r ight to
a fair trial had been violated as follows:

‘It is not an issue for this court that further evidence was tendered, but the
manner in which same was considered to the detriment of the [respondent].
By dismissing the points in limine when they should have been upheld, the
court misdirected itself and violated the [respondent’s] rights to a fair hearing
and the benefit of application of the audi alteram partem principle.
…
Upholding the points in limine by the [respondent], would not necessarily have
disposed of the matter, it would have enabled the principles of natural justice
to be applied. Given the above misdirection, I am of the view that the court
can interfere with the finding of the court a quo and further persuaded that the
[respondent] has made out a case for the relief sought.’

Despite this finding the high court did not remit the matter for fresh consideration in
the magistrates’ court.

In this Court

[15] The issues on appeal are:

(a) whether the respondent’s right to a fair trial was compromised by the
admission of further evidence contained in the replying affidavit;

(b) whether, on the merits, the appellant met the requirements for a final
protection order.

[16] The appellant submitted that the magistrates’ court was entitled to receive the
further evidence and that the respondent had ample opportunity to respond to it but
chose not to. In the circumstances, so the submission went, the respondent’s right to
a fair trial was not compromis ed and the appellant met the requirements for a final
order. Conversely, the appellant submitted that the evidence was admitted in
circumstances that compromised his right to a fair trial and that the appellant, in any
event, did not meet the requirements for a final protection order.

[17] Section 9 of the Act, in relevant parts, provides as follows:

‘9 Issuing of protection order
. . .
(2) If the respondent appears on the return date and opposes the issuing of a
protection order, the court must proceed to hear the matter and –

(a) consider any evidence previously received in terms of section 3 (1);
and

(b) consider any further affidavits or oral evidence as it may direct, which
must form part of the record of the proceedings.
. . .

(4) Subject to subsection (5), the court must, after a hearing as provided for in
subsection (2), issue a protection order in the prescribed manner if it finds, on
a balance of probabilities, that the respondent has engaged or is engaging in
harassment.’

[18] The section is mandatory in that the court must consider further affidavits or
oral evidence presented. It is obvious that the court hearing the application has a
discretion to allow further affidavits and , in the exercise of that discretion , must
ensure that the rights of all parties to the proceedings are protected. The reason for
this being that the Protection from Harassment Act, like the Domestic Violence Act
116 of 1998, seeks to grant access to court for an unrepresented person who is
confronted with a perceived threat to safety or dignity to obtain protection. Therefore,
the clerk of the court is mandated to assist a person se eking protection under the
Act.1 The prescribed form on which the application is made , further directs the
applicant to annex available affidavits and to preserve any documents, photographs,
and recordings, among others , to which reference is made in the application for a
subsequent hearing. It is anticipated that a full hearing will follow the initial
application and therefore the presiding officer must deal with the application as
follows:

‘3 Consideration of application and issuing of interim protection order

(1) The court must as soon as is reasonably possible consider an
application submitted to it in terms of section 2(7) and may, for that purpose,
consider any additional evidence it deems fit, including oral evidence or
evidence by affidavit, which must form part of the record of the proceedings.

(2) If the court is satisfied that there is prima facie evidence that –

1 Section 2 of the Act provides as follows:
‘Application for protection order.
(1) A complainant may in the prescribed manner apply to the court for a protection order against
harassment.

harassment.
(2) If the complainant or a person referred to in subsection (3) is not represented by a legal
representative, the cleck of the court must inform the complainant or person, in the prescribed
manner, of-
(a) the relief available in terms of this Act; and
(b) the right to also lodge a criminal complaint. . . .’

(a) the respondent is engaging or has engaged in harassment;

(b) harm is being or may be suffered by the complainant or a related
person as a result of that conduct if a protection order is not issued
immediately; and

(c) the protection to be accorded by the interim protection order is likely
not to be achieved if prior notice of the application is given to the respondent,

the court must, notwithstanding the fact that the respondent has not been
given notice of the proceedings referred to in subsection (1), issue an interim
protection order against the respondent, in the prescribed manner.’ (Emphasis
added)

[19] It is self -evident that on the return date, the respondent must be able to
challenge the evidence adduced in his absence. The interim order is clearly
designed to avert imminent threats of harm of which the court on prima facie
evidence is satisfied exist s. Given the brutal society in which we live, the legislature
was compelled to all ow for this sui generis procedure with greater latitude given to
the presiding officer to receive further evidence.2 There is nothing to suggest that the
procedure envisaged is limited to the ordinary civil standard of three sets of affidavits
of which the replying affidavit is ordinarily the shortest. This is so , as the court , on
granting the order, also authorises a w arrant for the respondent’s arrest. 3 Insistence
on the ordinary civil process would frustrate the purpose of the Act. The preamble of
the Act envisages that its purpose is to protect victims of harassment by:

‘. . .
(a) afford (ing) victims of harassment an effective remedy against behaviour;
and


2 Omar v The Government of The Republic of South Africa and Others [2005] ZACC 17; 2006 (2)
BCLR 253 (CC); 2006 (2) SA 289 (CC); 2006 (1) SACR 359 (CC) paras 12-19.
3 Section 11 of Act.

(b) introduce(ing) measures which seek to enable the relevant organs of
state to give full effect to the provisions of the Act.’

[20] Those victims are usually unrepresented and must navigate the process with
the assistance of a clerk who is not legally trained. Section 9(2)(a) and (b) of the Act
further envisage a hearing on the return date , at which the court must consider any
further evidence submitted.4 This is not problematic as the evidence is received with
appreciation of the rights of both parties to respond ther eto. The complaint that the
admission of the evidence should have been preceded by an application to file same
misconstrues the purpose of the Act which is specifically designed to address urgent
relief and gives the court inquisitorial powers to receive e vidence that it may so
direct.

[21] The complaint that the appellant had the opportunity to supplement her
founding affidavit prior to the respondent filing his answering affidavit does not take
the matter any further . The respondent had the replying affidavit before the hearing .
At that stage he was legally represented and could have sought agreement from his
opponent to postpone the matter if he needed an opportunity to respond to it. These
were factors the magistrates’ court was entitled to take int o consideration in the
exercise of its discretion. The magistrate, after argument, exercised a discretion to
allow the evidence as it was relevant to the determination of the matter. This was in
compliance with s 9 of the Act.

[22] Thereafter, the magistrate allowed the respondent ample opportunity to
consider how he wanted to deal with the ‘further evidence’. The respondent elected
to proceed with the hearing and closed his case without leading any evidence
despite his answering affidavit consisting, in the m ain, of bare denials. His choice
has consequences. In those circumstances, it is opportunistic for the respondent to
complain that his right to a fair hearing was compromised.

complain that his right to a fair hearing was compromised.


4 Sections 9(2)(a) and (b) provide as follows:
‘(2) If the respondent appears on the return date and opposes the issuing of a protection order, the
court must proceed to hear the matter and—
(a) consider any evidence previously received in terms of section 3(1); and
(b) consider any further affidavits or oral evidence as it may direct, which must form part of the record
of proceedings.’

[23] I am unable to agree with the finding of the high court that the respondent was
denied a fair trial. It follows that the high court’s order stands to be set aside. Both
parties require finality to the matter and have requested this Court to deal with the
merits. I turn to that enquiry.

[24] The terms ‘harassment’ and ‘harm’ are defined in s 1 of the Act as follows:

‘[H]arassment means directly or indirectly engaging in conduct that the
respondent knows or ought to know-

(a) causes harm or inspires the reasonable belief that harm may be caused to
the complainant or a related person by unreasonably-

(i) following, watching, pursuing or accosting of the complainant or a
related person, or loitering outside of or near the buildi ng or place where
the complainant or a related person resides, works, carries on business,
studies or happens to be;

(ii) engaging in verbal, electronic or any other communication aimed at the
complainant or a related person, by any means, whether or not
conversation ensues; or

(iii) sending, delivering or causing the delivery of letters, telegrams,
packages, facsimiles, electronic mail or other objects to the complainant or
a related person or leaving them where they will be found by, given to, or
brought to the attention of, the complainant or related person;
. . .
“harm” means any mental, psychological, physical or economic harm.’

[25] It is common cause that the respondent sent the emails summarised above.
The respondent’s zeal went far beyond what could r easonably be expected of the
appellant to tolerate from a concerned parent and SGB member. His personal
attacks on the appellant are a cause for concern. He followed through with his threat
and reported the appellant to the local Head of the Department of Education. An

informal hearing absolved her as the local Head of the Department agreed that the
SGB was the custodian of the relevant documents, and that the respondent should
request it from the SGB. The flurry of emails sent outside normal business hours
indicate complete disregard for the recipient.

[26] The respondent has downplayed his behaviour at the meeting following his
suspension and denied that he referred to the appellant and two other white
members of the SGB as ‘Verwoerd’s kids’. The evidence to the contrary is
overwhelming. Mr Chisi gave a credible account of the events at the meeting and the
appellant reported the incident to the police shortly after the meeting. The
magistrates’ court accepted that the res pondent uttered those words. The record
bears out the correctness of the finding.

[27] In argument before this Court, the respondent, while denying that he made
the Verwoerd comment, submitted that, in any event, referring to three white SGB
members as ‘Verwoerd’s kids’ could not be construed negatively as there are streets
and a town bearing the name. In the South African context, reference to Verwoerd’s
kids carries a racial connotation associated with the late former South African Prime
Minister Dr Hendrick Verwoerd and what he stood for . The streets and town named
after Verwoerd is merely an incident of our past and , if anything, should serve as a
warning from history against what he stood for. In City of Cape Town v Freddie and
Others,5 the Court held as follows:

‘Concerning the Verwoerd racist slur email: The former South African Prime
Minister Dr Hendrik Frederik Verwoerd is notoriously known. . .

. . . one should expect to see all right -minded and peace-loving people not to
dare to be even perceived as associating themselves with anything to do with
Verwoerd and his lieutenants, as well as his similar-minded successors.’

[28] Those remarks still reflect the current position in society. It follows that the

[28] Those remarks still reflect the current position in society. It follows that the
respondent used a racial slur while threatening to deal with the appellant. The

5 City of Cape Town v Freddie and Others [2016] ZALAC 8; [2016] 6 BLLR 568 (LAC) ; (2016) 37 ILJ
1364 (LAC) para 54-55.

incident was not isolated as it was preceded by the unacceptable bombardment of
email correspondence. The question is whether cumulatively these acts by the
responded constituted harassment.

[29] In her initial application, the appellant stated, ‘I feel intimidated and threatened
by his presence as well as when we communicate electronically’ . She further
referred to the June meeting incident and that the respondent had reported her to
her employer which had brought her into disrepute. She annexed the affidavit she
had made to the police in support of a complaint of crimen injuria, from which th e
following appears:

‘At 17:13 the members at the meeting came to unanimous decision to
suspend Mr Mailula . . . [he] jumped up in a very aggressive manner . . . I will
deal with Verwoerd’s kids . . . At this time I was very emotional and felt
threatened and afraid and racially attacked and offended and my dignity was
severely attacked and damaged.
I am emotionally damaged and felt that he permanently damages my
reputation in front of the whole meeting. At this moment with the body
language Mr Mailula displayed I feared for my own safety. . .
. . .
I am devasted emotionally, physically, and psychologically . . . The suspect is
a very dangerous individual and will attack without provocation.’

[30] Mr Chisi confirmed that the respondent was aggressive at the June meeting
following his suspension. He also referred to the email bombardment, as he was also
copied in a number of these emails . The summary referred to above bears out the
correctness of that statement. It is further apparent that t he appellant consulted Mrs
van Niekerk on 4 June 2021, shortly after the June meeting. As Ms van Niekerk did
not testify or qualify herself as an expert the magistrates’ court did not have the
opportunity to consider the basis for her expert opinion, the probative value of which
is therefore minimal. However, it does confirm that at relevant times, the appellant

is therefore minimal. However, it does confirm that at relevant times, the appellant
felt emotional as she described in the initial affidavit. The reason for such em otion is
obvious. The respondent imposed on her impermissibly at unreasonable hours and
seemed to have focused his frustrations on her. The circumstances of this matter are

such that, at the June meeting, the appellant was already vulnerable and worn down
from the persistent electronic harassment.

[31] The manner, tone and times, together with requests to desist from the
correspondence leave no doubt that the respondent ought to have known that his
conduct was harmful to the appellant. He compounded the delibe rate obstructive
behaviour when he reported her to the Department and , after his suspension, found
creative means to contact her in flagrant continued harassment. The racial slur
coupled with the threat caused further emotional trauma. Th is added to his al ready
outrageous behaviour and was no doubt intended to cause harm.

[32] In the circumstances of this matter, the cumulative effect of the electronic
communications, the aggressive stance the respondent took in his dealings with the
appellant culminating in r acial slur and threat , brings his behaviour within the
definition of harassment. It follows that the magistrates’ court was correct in holding
that the appellant met the requirements for a final order. I further agree with the
magistrates’ court that given the nature of the matter a costs order would be
inappropriate.6

Order

[33] In the result the following order is issued:

1 The appeal is upheld with no order as to costs.

2 The order of the high court is set aside and replaced with the following:

‘The appeal is dismissed with no order as to costs.’


_____________________
E D BAARTMAN

6 Section 16 of the Act.

ACTING JUDGE OF APPEAL


Appearances

For the appellant: M Barnard
Instructed by: Breytenbach Keulder Inc, Modimolle
Hendre Conradie Inc, Bloemfontein

For the respondent: J M Mailula in person
Instructed by: In person.