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2024
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[2024] ZALMPPHC 139
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Snyman v Phihorah Foods (Pty) Ltd and Others (10072/2024) [2024] ZALMPPHC 139 (8 October 2024)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
LIMPOPO DIVISION,
POLOKWANE
CASE
NO:
10072/2024
(1)
REPORTABLE: YES/NO
(2)
OF INTEREST TO THE JUDGES: YES/NO
(3)
REVISED.
DATE 8/10/2024
SIGNATURE
In the matter between:
MARIO
SNYMAN
Applicant
and
PHIHORAH
FOODS (PTY) LTD
First respondent
KOENA MARTIN MATLALA
Second respondent
FAITH MATHONGASI
NKANYANI
Third respondent
MAZIA CARRIM
ATTORNEYS
Fourth respondent
THE REGISTRAR OF
DEEDS, LIMPOPO PROVINCE
POLOKWANE
Fifth respondent
JUDGMENT
GAISA AJ
INTRODUCTION
[1]
This is an urgent application brought by
Mario Snyman (the Applicant) against Phihorah Foods (Pty) Ltd (First
Respondent), Koena
Martin Matlala (Second Respondent), and others.
The Applicant seeks an urgent interdict to prevent transfer of a
property to the
Third and Fourth Respondents pending an action for
specific performance.
[2]
The key issue for determination is whether
the application meets the requirements for urgency as set out in Rule
6(12) of the Uniform
Rules of Court.
CHRONOLOGY OF
EVENTS
[3]
Before addressing the issue of urgency, it
is necessary to set out the relevant timeline of events:
3.1.
23 June 2024: The First and Second
Respondents entered into an offer to purchase with the Third and
Fourth Respondents through Seeff
Agency.
3.2.
25 June 2024: The Applicant entered into an
offer to purchase with the First Respondent through Remax Agency.
3.3.
1 August 2024: A power of attorney was
signed authorizing Nazia Carrim Attorneys to transfer and act upon
the contract entered into
between the First and Second Respondents
and the Third and Fourth Respondents.
3.4.
20 August 2024: A mortgage loan was secured
by Kemstruct Systems Pty Ltd (not the Applicant personally).
3.5.
22 August 2024: The Applicant became aware
of the competing offer.
3.6.
28 August 2024: Negotiations between the
parties failed.
3.7.
10 September 2024: The Applicant filed this
urgent application.
LEGAL FRAMEWORK
[4]
Rule 6(12) of the Uniform Rules of Court
requires an applicant in urgent proceedings to set forth explicitly:
4.1.
The circumstances which render the matter
urgent; and
4.2.
The reasons why the applicant claims he
could not be afforded substantial redress at a hearing in due course.
[5]
In
East
Rock Trading 7 (Pty) Ltd and Another v Eagle Valley Granite (Pty)
Ltd
[1]
the court emphasized that:
"[6] The import
thereof is that the procedure set out in rule 6(12) is not there for
taking. An applicant has to set forth
explicitly the circumstances
which he avers render the matter urgent. More importantly, the
Applicant must state the reasons why
he claims that he cannot be
afforded substantial redress at a hearing in due course. The question
of whether a matter is sufficiently
urgent to be enrolled and heard
as an urgent application is underpinned by the issue of absence of
substantial redress in an application
in due course. The rules allow
the court to come to the assistance of a litigant because if the
latter were to wait for the normal
course laid down by the rules it
will not obtain substantial redress.”
[6]
Furthermore,
in
Mogalakwena
Local Municipality v Provincial Executive Council, Limpopo and
Others
[2]
the court held:
"
It
seems to me that when urgency is in issue the primary investigation
should be to determine whether the applicant will be afforded
substantial redress at a hearing in due course. If the applicant
cannot establish prejudice in this sense, the application cannot
be
urgent”
.
ANALYSIS
[7]
After careful consideration of the papers
before me, I find that the Applicant has failed to meet the
requirements for urgency for
the following reasons:
7.1.
The Applicant became aware of potential
issues with the property sale as early as August 22, 2024, when he
received a letter indicating
there was a competing offer for the
property.
7.2.
Negotiations between the parties
definitively failed on August 28, 2024. This date marks the point at
which the urgency of the matter
crystallized and the clock, in
respect of urgency, started ticking
7.3.
Despite the clear failure of negotiations
on August 28, 2024, the Applicant only filed the urgent application
on September 10, 2024
- a delay of approximately 13 days.
7.4.
This 13-day delay is significant in the
context of an urgent application and suggests that the Applicant did
not act with the promptness
required for urgent relief.
7.5.
The Applicant has not provided a
satisfactory explanation for this delay in the founding affidavit, as
required by Rule 6(12) of
the Uniform Rules of Court.
7.6.
Most importantly, the Applicant has failed
to explicitly set forth in the founding affidavit why he cannot be
afforded substantial
redress at a hearing in due course, as required
by Rule 6(12)(b) and emphasized in East Rock Trading.
7.7.
The Applicant has not demonstrated why he
cannot obtain substantial redress through normal court processes, as
required by the Mogalakwena
Local Municipality case.
7.8.
While there may be potential financial
implications for the Applicant if the property is transferred, this
alone does not justify
urgent relief, especially in the absence of a
clear explanation as to why normal court procedures would not provide
substantial
redress.
[8]
Given that the application does not meet
the requirements for urgency, there is no need to consider the merits
of the matter at
this stage.
CONCLUSION
[9]
The Applicant has failed to demonstrate the
level of urgency required for this court to hear the matter on an
urgent basis. The
13-day delay between the failure of negotiations
and the filing of the urgent application is significant and
unexplained. This
delay, coupled with the failure to explicitly
address why substantial redress cannot be obtained in due course,
leads me to conclude
that this matter is not truly urgent as
contemplated by Rule 6(12) and the relevant case law.
[10]
It is important to note, however, that
striking this matter from the urgent roll does not mean the end of
the road for the Applicant.
The Applicant retains the right to pursue
this matter through ordinary court procedures if so advised.
ORDER
[11]
In light of the above, I make the following
order:
11.1.
The matter is struck from the urgent roll
for lack of urgency.
11.2.
The Applicant is ordered to pay the costs
of this application.
N GAISA
ACTING JUDGE OF THE HIGH
COURT
LIMPOPO DIVISION,
POLOKWANE
APPEARANCES
FOR
THE APPLICANT
:
MR OBERHOLZER
:
DE BRUIN OBERHOLZER ATTORNEYS
EMAIL
:
j.oberholzer@jbolaw.co.za
FOR
THE 1
st
& 2
nd
RESPONDENT :
ADV. V SAKO
EMAIL
:
counsel@okas.co.za
INSTRUCTED
BY
: NAZIA CARRIM ATTORNEYS
EMAIL
:
Mashole@ncattorneys.co.za
DATE OF
HEARING
:25 September 2024
DATE OF
JUDGEMENT
: 8 October 2024
This
judgment is handed down electronically by circulation to the parties’
representatives by email. The date and time for
hand-down of the
judgment is deemed to be 8 OCTOBER 2024.
[1]
East
Rock Trading 7 (Pty) Ltd and Another v Eagle Valley Granite (Pty)
Ltd and Others (11/33767) [2011] ZAGPJHC 196 (23 September
2011)
[2]
Mogalakwena
Local Municipality v Provincial Executive Council, Limpopo and
Others (35248/14) [2014] ZAGPPHC 400;
[2014] 4 All SA 67
(GP) (19
June 2014)