REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
LIMPOPO DIVISION, POLOKWANE
CASE NO: 2479/2025
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO THE JUDGES: YES/NO
(3) REVISED.
DATE: 01/4/2025
SIGNATURE:
In the matter between :
FEDERATED LOCAL AND LONG DISTANCE TAXI 1ST APPLICANT
ASSOCIATION
JANE FURSE LONG DISTANCE TAXI ASSOCIATION 2ND APPLICANT
And
MOHLALA DITHOMO MOSES 1ST RESPONDENT
UNKNOWN PERSONS 2ND RESPONDENT
_______ _____
JUDGEMENT
KGANYAGO J
[1] The first applicant Federated Local and Long Distance Taxi Association (FELLDTA) is a
federation of various taxi associations. The second applicant Jane Furse Long Distance Taxi
Association (JALDTA) is a member of the first applicant. The second applicant had been
placed under administration by the first app licant and Sindane Edward Charles who is the
deponent to the applicants founding affidavit has been appointed as the administrator of the
second applicant. The applicants have launched an urgent interdict application against the
respondents seeking the fol lowing orders:
“(a) interdicting the respondent from operating his minibus taxi along Jane Furse -
Johannesburg route and any route without a valid operating permit ;
(b) interdicting and restraining the respondent from preventing and/or obstructing the members
of the applicants and their drivers from engaging in their normal business of transporting
passengers along their designated route ;
(c) interdicting and restraining the respondent individually and/or together with any in dividual/s
or organisation/s or person/s from intimidating, threatening or threatening to harm members of
the applicant, their employees and are further ordered to desist from unlawfully interfering
with the applicants’ business operations in any way;
(d) interdicting the respondent from forcing members of the applicants to join SA Local and
Long Distance Taxi and Bus Organisation (SALLDTBO) or any rival taxi association;
(e) interdicting the respondent from issuing unlawful instru ctions to members of the applicants
to join SALLDTBO and/or any other rival association of the applicants;
(f) that the South African Police Services and other law enforcement agencies be requested to
assist in ensuring compliance with the terms of this court order in the event of non -compliance
by the respondent with the contents thereof”.
[2] According to the time frames fixed by the applicant, should the respondent wish to oppose the
applicants’ application, they should notify the applicants’ attorneys in writing on or before
10h00 on Tuesday the 11th March 2025, and to file his answering affidavit , if any on or before
15h00 on 12th March 2025, and the applicants if the y wish to reply, to do so by 12h00 on 13th
March 2025. The appli cant’s application was issued on 10th March 2025 set down on Tuesday
the 18th March 2025 at 10h00. The application was served by the deputy sheriff
Makhuduthamaga personally on the first respondent on 10th March 2025 at 15h32. According
to the sheriff’s re turn of service, the documents that were served on the first respondent were
(i) notice of motion, (ii) founding affidavit and annexures, and (iii) Rule 41A notice.
[3] According to the applicant’s founding affidavit the first respondent used to be a member of the
applicants and chairperson of the second applicant. When the first respondent was removed
as chairperson, he joined the rival association and the first respondent and cohorts are forcing
the members of the second applicant to join SALLDTBO. T hat SALLDTBO is affiliated to
SANTACO and there is an ugly history between FELLDTA and SANTACO. The respondents
are not only forcing applicants’ members to join the rival association but have also removed
the applicants’ stickers from the minibus taxis of the applicants’ members and replaced them
with stickers of SANTACO and SALL DTBO.
[4] A meeting was convened by the applicants on 20th February 2025, wherein the members who
have joined or defected to the rival association at the behest of the first respondent
apologised as they were tricked and forced to join the rival association. SALLDTBO does not
have a permit to operate the route between Jane Furse and Johannesburg. Fearing that the
respondents’ action might lead to conflict and possible vi olence, the applicants approached
the offices of the station commander of Jane Furse on 21st February 2025. The police tried to
mediate, but the first respondent did not avail himself despite being contacted by the police
station. The first respondent is busy forcing members of the applicants to join his association,
and his conduct holds the potential to spark renewed and unavoidable violence which are
imminent.
[5] The first respondent (respondent) is opposing the applicant’s application and has serv ed the
applicants with opposing papers on 14th March 2025 outside the time periods fixed by the
applicant. The respondent did not file the original notice to oppose and answering affidavit
with the registrar of the court. The respondent’s counsel wanted to hand in from the bar the
notice to oppose and answering affidavit on the 18th March 2025 which was the date of
hearing of the matter. The applicant’s counsel objected to the respondent ’s counsel handing
in the opposing papers arguing that the respondent h ad served them with the opposing
papers out of time without a substantive application for condonation .
[6] Counsel for respondent submitted that the papers that were served on the respondent by the
sheriff did not have time frames within which they wer e required to serve and file their
opposing papers, and his instructing attorney had informed him that before the 14th March
2025 he had come to court to try and file opposing papers more than once, but the registrar of
the court had refused to accept the answering affidavit. When it was pointed counsel for the
respondent that the answering affidavit was only signed and commissioned on 14th March
2025 and which answering affidavit was he referring to . Counsel for the respondent submitted
that maybe his instructing attorney was trying to file an unsigned answering affidavit. When it
was further pointed to him that the notice to oppose was also signed on 14th March 2025 and
also why the alleged unsigned papers were not served on the applicant’s attorneys, he could
not answer that and stated he was merely placing on record what his instructing attorney had
told him.
[7] On perusal of the application served on the respondent, it was found that it was n ot similar to
the original application filed by the applicant. On the original application, the time frames fixed
by the applicant appears on the last page of the notice of motion which the applicant’s
attorney had signed. However, on the application alleg edly served on the respondent, the
page with time frames was not there, but was there a signed page which on perusal shows
that it was the signed last page for the rule 41A notice. The rule 41A notice was not contained
in the application allegedly served o n the respondent. When it was pointed to counsel for the
respondent that the last page which he alleges that it was for the notice of motion, was in fact
for the rule 41A notice, he insisted that the application as it stand was the one that was
served on t he respondent by the deputy sheriff.
[8] The court gave directives to the applicant’s attorney must request the deputy sheriff to depose
an affidavit regarding what documents he had serve d on the respondent , and the matter was
adjourned to the 20th March 2025. On 20th March 2025 both counsel for t he two parties
presented to court two different affidavit from the same deputy sheriff stating different things.
What was even more surprising was that signatures on both affidavits looked different. On
18th March 2025, the respondent was not directed to request the deputy sheriff to depose an
affidavit, but it was the applicant’s counsel who was directed to do so. The court issued a
directive that the applicant subpoena the deputy sheriff to come an clarify the court whether
indeed it was him who had deposed both affidavit and which documents did he serve on the
respondent . The matter was adjourned to the 26th March 2025.
[9] On 26th March 2025 before the hearing started, counsel for the applicant informe d the court for
noting that after this matter was adjourned to 20th March 2025, on 19th March 2025
respondent attorney went to magistrate court Nebo on an ex -parte urgent basis and obtained
an interim order interdicting the applicants from refusing the res pondents to load passengers
pending the determination of part B which was for a final interdict. On perusal of the interim
order obtained at magistrate Nebo, even though it was obtained on ex -parte basis, it had the
effect of a final interdict a s there was no rule nisi that was issued and there is also no
provision for the anticipation of the interim order. Counsel for respondent submitted he is
aware of the application and order of magistrate Nebo , but had no instructions about it.
[10] The deputy sheriff doctor Phiri had testified that he is one who had deposed both affidavit s. The
affidavit that was handed in by the applicant’s counsel, he had deposed it during the day
whilst he was still on duty at Jane Furse. The one handed in by the respondent’ s counsel he
had signed it after hours after he was requested by Mr Kgapola attorney for the respondent.
The information that he gave to Kgapola was his names, identity number, date and time of
service. The rest of the information contained in the affidavi t were from Mr Kgapola. He had
read the affidavit and have it signed and commissioned at Nebo police station. Everything
was done in a hurry regarding the affidavit prepared by Mr Kgapola .
[11] Th e deputy sheriff further testified that he is one who ha d served the applicant’s application on
the respondent. After serving the application, he had noted the documents that he had served
on a job card, and thereafter prepared a return of service. According to his return of service,
he had served the responden t with a notice of motion, founding affidavit and annexures, and
rule 41A notice. The source document to prepare the return of service was his job card. The
documents that he had served on the respondent is the same as the ones that appear s on the
applican t’s original application. He had no reason to remove any document received from the
applicant’s attorney .
[12] In addressing the court, counsel for the respondent had conceded that he had seen the
applicant’s rule 41A notice and do not understand why su ddenly it is missing from the copy of
the application which is in his possession . He submitted that on 18th March 2025 he had a
discussion with Mr Rahlagane counsel for the applicant and that anything could have
happened. When asked whether he is insinuati ng that Mr Rahlagane could have tampered
with his documents, he could come out clearly but was evasive. However, he submitted that
copy of the application that he had handed in to the court was given to him by his instructing
attorney stable d together as it is , and was also containing rule 41A notice which is suddenly
missing from his copy of the application . Counsel for the respondent conceded that from the
18th March 2025 up to the 26th March 2025, they did not attempt to make any substantiv e
application for condonation as th ere was still a dispute in relation to whether condonation was
necessary or not .
[13] This court is called upon to determine whether the application served on the respondent
contained times frames within which the resp ondent was supposed to file his opposing
papers, and whether condonation application for late filing of the papers by the respondent
was necessary in this matter . Rule 27(1) of the Uniform Rules of Court (Rules) provides as
follows:
“In the abse nce of an agreement between the parties, the court may upon application on notice
and on good cause shown, make an order extending or abridging any time frame prescribed
by these rules or an order of court or fixed by an order extending or abridging any ti me frame
for doing any act or taking any step in connection with any proceeding of any nature
whatsoever upon such terms as to it seems meet”.
[14] It is trite that in urgent applications, it is the applicant who fixes time period s within which the
respondent is required to file opposing papers. The respondent is required to comply with the
said time period, and if the respondent is unable to comply , and file opposing papers out of
the fixed time period, a substantive condonation ap plication must accompany the papers filed
out of time. Normally in the answering affidavit there will be a portion dedicated to
condonation application. In the matter at hand, the notice to oppose and answering affidavit
was only served on the applicant’s attorneys on Friday the 14th March 2025 outside the time
frames fixed by the applicant. The respondent’s original opposing papers w ere not filed with
the registrar of this court.
[15] The respondent’s counsel had submitted the application served on the r espondent did not
contain the time frames fixed by the applicant, and hence they were under the impression that
that they can serve and file their opposing papers at any time. After serving the applicant, the
respondent did not file the original with the r egistrar of this court and wanted to hand it in court
from the bar. There are some elements of dishonesty displayed by counsel for the respondent
or from the instructions given to him by his instructing attorney. Counsel for the respondent
when asked why t he respondent’s original opposing papers was not filed with the registrar, he
had placed it on record that his instructing attorney had come to the registrar’s office more
once before the 14th March 2025 to try and file opposing papers but the registrar re fused to
accept them. When it was pointed to him that the notice to oppose and answering affidavit
were only signed and commissioned on 14th March 2025, he stated that maybe his instructing
attorney wanted to file unsigned answering affidavit. He made th ese submissions without
instructions from his instructing attorney, whilst a counsel act based on instructions from
his/her instructing attorney.
[16] In urgent application s an unsigned affidavit if the other party is given truncated time period is
usually served and filed, and on the date of hearing a properly signed and commissioned
affidavit will be handed in. That is done solely to meet the fixed time period s, and also to
make the other party aware of what case they are going to meet, and should they with reply,
they be able to do so timeously. Counsel for the respondent could not answer why the alleged
unsigned answering affidavit was not served on the applicant’s attorne ys if indeed they
wanted to file it with the registrar . The normal procedure is that you first serve the interested
party to the proceedings, and thereafter file the original with the registrar of the court. In this
case is quite strange that the responden t was more interested in only filing with the court and
not serving the party that called him to attend court. It seems that the respondent attorney is
not aware that a notice to oppose is signed by the attorney who had prepared it and does not
need the si gnature of his client. Therefore, if in indeed the submission by the respondent’s
counsel is correct, the notice to oppose should have been signed and served before the 14th
March 2025 and not bear the same date with the answering affidavit. If the respond ent was
served with a n application without time frames, why was the respondent’s attorney so anxious
in trying to file unsigned papers. The only conclusion is that the respondent’s counsel or
through the ins tructions from his instructing attorney was tryin g mislead the court as to the
reasons why the respondent’s opposing papers were not served and filed timeously, whilst
the respondent was served with the application on 10th March 2025.
[17] The misleading of the court by the respondent’s counsel or thr ough his instructions from his
instructing attorney did not end there. The respondent’s counsel alleges that the application
that was served on the respondent did not have time frames within which they were required
to file opposing papers. On perusal of t he application in possession of the respondent’s
counsel, is totally different from the one that the applicant alleges that it was the original that
was served o n the respondent. That led to the court giving directive to the applicant’s attorney
that the deputy sheriff be called to clarify the court on which documents were actually served
on the respondent. The deputy sheriff came and confirmed that he had served the respondent
with a notice of motion, founding affidavit and annexures , and rule 41A notice. These are the
documents contained in the original application filed by the applicant. The deputy sheriff’s
version is corroborated by the return of service which he prepared after serving the
application on the respondent.
[18] What appears from the copy of the application handed in by counsel for respondent, is that the
application has been rearranged. The last pag e of the notice of motion was removed and
replaced with the last page of rule 41 A notice . From the original application t he times frames
fixed by the applicant’s attorney appears on the last page of the notice of motion which the
attorney for the applicant had signed , and that is the page that is missing on the copy in
possession of the applicant’s counsel . By removing the last page of the notice of motion and
replacing it with the last page of the rule 41 A notice, whoever did that his/her intention was to
try and mislead the court that the application that was served on the respondent did not have
time frames. However, that person did not do a thorough job, as he/she did not notice that the
document attached requires the respondent to indicate whether they are agreeable to matter
been referred for mediation , which shows that it was the last page of the rule 41A notice .
Even the application itself shows the original stables that was used by the deputy sheriff to
bind the documents has been removed and the doc uments were again stabled together . The
deputy sheriff has testified that he had no reason to remove any document from the
applicant’s application and was not challenged by counsel for the respondent on that version.
[19] The return of service by the de puty sheriff state that the application was served personally on
the respondent after the original document was displayed and the nature and contents
explained. The originals will be the signed notice of motion, signed and commissioned
founding affidavit , and signed rule 41A notice. Counsel for respondent when asked why copy
of the application that was served on the respondent did not contain the rule 41A notice, he
wanted to blame counsel for the applicant as the person who might have removed it as he
alleges that when he came to court he had seen th e rule 41A notice in the copy of the
application in his possession , but was surprised that it was missing, and anything could have
happened whilst he was having a discussion with the applicant’s counsel . His attempt to try
and blame counsel for applicant had no merit as according to counsel for the respondent,
copy of the application which he had handed it in court was still stabled together same way he
was given by his instruc ting attorney. Counsel for respondent was asked whether he wishes
to call his instructing attorney to come and clarify the court on anything that looks obscure,
and he stated that there was no need.
[20] All these shows that the respondent was aware that he was out of time with t he filing of his
opposing papers and did not have persuading reasons why he was out of time since he was
timeously served with the applica tion. The respondent devised a means of trying to mislead
the court by rearranging the application and removing the pa ge that contained the time
frames with in which to serve and file opposing papers. From the time the application was
adjourned twice, the respondent did not attempt to prepare a substantive condonation
application, but instead opted to launch a parallel app lication in the lower court well knowing
that there is a pending application which deals with the same issues in the high court. This
was done with sole pu rpose of trying to cause confusion, and has also an element of
undermining the authority of this cour t. Since the issue of the ex parte urgent application in
the lower court was raised by counsel for the applicant for noting , and counsel for the
respondent did not have instructions on that, I will not take it any further but will take that into
consider ation when dealing with costs.
[21] It is clear that counsel for respondent or through the instruction given to him by his
instructing attorney was not honest with this court in the ma nner in which he wanted
represent the respondent. Legal practitioners are officers of the court and are
expected to act with intergrity, honesty and with diligence at all times. Legal
practitioners play an important role in the administration of justice, and a hi gh level of
professional standard is expected from them. As officers of the court, legal
practitioners are expected to assist the court and not mislead it. The duties of the of
an attorney were summarised by Kirk -Cohen J in Law Society, Transvaal v Mathews1
as follows:
“The attorney is a person from whom the highest standard are expected by the
profession and this court. if an attorney wishes to digress from that standard he may
do so but he must first cast aside his profession by resigning and then pursue his
chosen course. He cannot serve two masters. In this regard the standards are
admirably dealt with in the founding affidavit as follows:
‘An attorney is a professional man whose independence and freedom in the
conduct of his pra ctice are recognised and preserved. Within the limits of the
law and rules of the professional conduct an attorney conducts, and in fact
should conduct, his practice with a high degree of independence. The
1 1989 (4) SA 389 (T) at 395F -396B
profession itself is not a mere calling or occupat ion by which a person earns
his living. An attorney is a member of a learned, respected and honourable
profession and, by entering it, he pledges himself with total and
unquestionable intergrity to the society at large, to the courts and profession
… only the very highest standard of conduct and repute and good faith are
consistent with the membership of the profession which indeed only function
effectively if it inspires the unconditional confidence and trust of the public.
The image and standing of the pr ofession are judged by the conduct and
reputation of all its members and, to maintain this confidence and trust, all
members of the profession must exhibit the qualities set out above.
The attorneys’ profession can only fulfil its obligations to the community and comply
with this role in the administration of justice in the land if it inspires and maintains the
unconditional confidence of the community and if its members dev ote their absolute
intergrity to the conduct of their profession and to the fulfilment of all the requirements
demanded of the profession and its members. The intergrity of an attorney should
inter alia manifest itself in a situation where he must prefer t he interest of his client
above his own. It is required of an attorney that he observes scrupulously, and
complies with the provisions of the Attorneys Act and rules”.
[22] What the respondent’s legal representative did in this matter was a deliberate a nd intentional
attempt to mislead the court. The rules of court and practice directive of each division are
meant for the smooth running of the court. Any deliberate attempt to ignore them by a legal
practitioner, there is no reason why the court should be merciful on that practitioner more
especially where the practitioner act with no intergrity or honesty. The respondent has not
furnished this court with single acceptable reason why they have failed to make a substantive
application for condonation for late filing of their opposing papers , but had tried to devise
some means to try and mislead the court .
[23] Taking into consideration the evidence tendered in this matter, and arguments presented , the
applicant s’ objectio n stand be upheld . Since the respondent were aware that they were
supposed to make a condonation application, but deliberately tried to mislead the court, the
court find no justifiable reasons why the proceedings should be stayed to enable the
respondent t o file a substantive condonation application, or to permit them to present their
application for condonation from the bar. T he matter will be finalised on unopposed basis. The
applicant s have established that the matter is urgent and will be enrolled as su ch. On merits,
the applicant s had satisfied the requirements for granting of a final interdict.
[24] Counsel for applicant s has applied for a costs de bonis pro priis due to the conduct displayed by
the respondent’s attorneys. Costs of this nature are r arely granted. This court had found that
the respondent’s attorneys had acted without intergrity, as they have rearranged the
application served on the respondent with the sole purpose of trying to mislead this court into
believing that the respondent’s co py did not contain time frames within which to file opposing
papers. That in itself amounted to dishonesty. From the beginning counsel for respondent or
through the instructions he received from his instructing attorney tried mislead the court
regarding th e number of times his instructing attorney tried unsuccessfully to file the opposing
papers with the registrar of this court . The submission that counsel for respondent made was
that it was his instructing attorney who gave him such instruction s. However, when given an
opportunity to call the instructing attorney to come and clarify the court, he s ubmitted that it
was not necessary. With regard to the institution of the parallel case in the lower court , it will
be through the advice the respondent received from his attorney. It will therefore be unfair to
punish the respondent for the actions of his attorney. This is one of the rare cases where
costs de bonis pro riis will be appropriate.
[25] In the result the f ollowing order is made:
25.1 The applicant s’ objection is upheld and the respondent’s notice to oppose and answering
affidavit is rejected as no condonation application for their late filing was made.
25.2 The applicant s’ non-complian ce with this honourable court’s practice directive relating to
the set down of urgent applications is condoned .
25.3 Non -compliance with the rules relating to service and time periods are condoned and this
matter is heard as urgent in terms of r ule 6(12) .
25.4 The respondent is interdicted from operating his mini -bus taxi along Jane Furse -
Johannesburg route and /or any route without a valid operating permit .
25.5 The respondent is interdicted and restrained from preventing an d/or obstructing the
members of the applicants and their drivers from engaging in their normal business of
transporting passengers along their designated route .
25.6 The respondent is interdicted and restrained individually and /or together with any
individual/s or organisation/s or person/s, from intimidating, threatening or threatening to harm
members of the applicants, their employees and are further ordered to desist from unlawfully
interfering with the applicant s’ business operations in any w ay.
25.7 The respondent is interdicted from forcing members of the applicants to join SA Local and
Long Distance and Bus Organisation (SALLDTBO) or any rival taxi association.
25.8 The respondent is interdicted from issuing unlawful instructions to members of the
applicants to join SA Local and Long Distance Taxi and Bus Organisati on (SALLDTBO) and
or any other rival association of the applicants.
25.9 The South African Police Services and other relevant law enforcement agencies are
requested to assist in ensuring compliance with the terms of this court order in the event of
non-compliance by the respondent with the contents thereof.
25.10 Costs de bonis propri is is awarded against the respondent’s attorney on scale C.
25.11 Copy of this judgment must be sent to the Legal Practice Council (LPC).
KGANYAGO J
JUDGE OF THE HIGH COURT OF SOUTH AFRICA,
LIMPOPO DIVISION , POLOKWANE
APPEARANCE S:
Counsel for the applicants : JL Rahlagane
Instructed by : JL Rahlagane attorneys
Counsel for the respondent s : Adv Mamogobo
Instructed by : T hato B Kgapola attorneys
Date heard : 26th March 2025
Electronically circulated on : 1st April 2025