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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
LIMPOPO DIVISION, POLOKWANE
CASE No: 1775/2025
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO THE JUDGES: YES/NO
(3) REVISED : Yes
DATE: 25/04/ 2025
SIGNATURE:
In the matter between:
POLOKWANE LOCAL MUNICIPALITY APPLICANT
AND
SAND HAWKS (PTY) LTD 1ST RESPONDENT
NETWORTH PROPERTIES (PTY) LTD 2ND RESPONDENT
65 TWIN PROPERTY2 (PTY)LTD 3RD RESPONDENT
MINISTER OF POLICE 4TH RESPONDENT
Delivered : 25 April 2025
This judgment was handed down electronically by circulation to
the parties' legal representatives by e -mail. The date and time
for hand down of the judgment is deemed to be 25 April 2025 at
10:00 am.
Date heard : 26 March 2025
Coram : MASHIFANE AJ
JUDGMEN T
Introduction.
1. This is an application for reconsideration in terms of Rule 6 (12) ( c) of the
Uniform Rules of Court brought by the first respondent in respect of an order granted
ex parte on 19th of February 2025 by Mathabathe AJ in terms of which a rule nisi was
issued and the return day set on the 13 of May 2025. The application is opposed by
the applicant, the second and third respondent. For the purposes of this judgment
the parties will be referred to as in the main application.
Background
2. Before dealing wi th the issues before me I find it expedient to deal first with
the historical background of the matter. During January 2007 the applicant and the
first respondent entered into a written lease agreement in terms of which the first
respondent leased proper ty known as Undivided Portion of the Remainder of the
farm Krugersburg 993 LS owned by the applicant. Upon expiry of the first fixed term
the parties continue with the lease agreement on month -to-month basis.
3. On 29 November 2017, after a being declared a successful bidder the second
respondent and the applicant entered into a notarial lease agreement in respect of
the same property. The second respondent then entered into sub lease agreement
with the third respondent and were operations scheduled to com mence on the 1st of
October 2024.
4. On the 28th of August 2023 the applicant gave the first respondent one month
termination notice. The first respondent replied to the termination notice and
requested a grace period of twelve months ending 14 September 2024 and same
was acceptable to the applicant. Instead of vacating the premises as per its own
undertaking, on the 27th of September 2024 first respondent issued summons
against the applicant alleging a lien over the property and that it will not vacate th e
premises until fully compensated in the amount of R708400.00. It is evident from the
particulars of claim that the alleged lien was because of alleged improvements by the
first respondent which by their nature it could be safely inferred that they were
incurred shortly after the commencement of the lease agreement.
5. On the 11th and 12th of February 2025 the third respondent sent armed
security guards arrived at the leased property to stop the operation or business and
further to remove the first respo ndent and its equipment from the property. This
conduct caused the first respondent to urgently and successfully approaching the
High Court for spoliation order. On the 18th of February 2024 Makoti AJ delivered his
judgment in favour of the first responden t.
Ex parte application
6. A day following the date of the judgment referred to above, the applicant (third
respondent before Makoti AJ) approached the court on urgent basis and the order in
its favaour was granted exparte as follows:
1. "A rule nisi is granted returnable on the 13 May 2025 at 10h00 in the
morning or so soon thereafter as the matter may be heard, calling upon the
First Respondent to show cause, if any, as to why a final order should not be
granted in the following terms:
1.1 The First Res pondent or any third party, agent or persons associated
with First Respondent from the property of the Applicant are evicted from the
property known portion/ Erf 6 […] East ridge Ext3;
1.2 The officials of the Applicant are hereby authorised to implement this
court order and execute the eviction by themselves, alternatively with the
assistance of the SAPS in so far as may be necessary;
1.3 The First Respondent is ordered to pay the cost of this application
including of Counsel;
1.4 This order will operate as an interim interdict having am immediate
effect, pending the return date for this application;
1.5 The fourth respondent is hereby directed to take notice of this order
and act in accordance and within the scope of the law of the land to uphold
the laws o f the Republic of south Africa.
2. The First respondents is hereby interdicted and restrained from using
the property known as Portion/ Erf6[…], East Ridge Ext 3 in contravention with
the provisions of the Polokwane Integrated Land Use Scheme, 2022 for
stockpiling purposes pending finalisa tion of this application on its return date.
3. This order comes into effect immediately and will operate as an interim
order of this court until the return date of the application.
4. The first Respondent may anticipate the rule nisi with notice of 48
hours to the Applicant '.
7. The first respondent promptly and urgently approached the court with an
application for reconsideration however the 27th of February 2025 Diamond AJ
removed the application from the urgent roll. This matter came before me because of
the directive from the Judge President granting a permission that it be placed on
special allocation roll.
Reconsideration application.
8. The first respondent vehemently argued that its application is governed by the
Rule 6 (12) (c).The counsel for t he first respondent insisted that the only procedure
to be followed is as provided for in rule 6 (12) (c) and was granted an opportunity to
argue the respondent's case under the subrule. The first respondent's argument is
basically that based on the fou nding affidavit the applicant failed to set out the case
for the relief sought and for the matter to be heard on ex parte basis.
9. The ruling that the first respondent may proceed to argue the case based
solely on the applicant's case did not preclude ot her parties from raising points of law.
It was only to say when arguing the merits they were limited to the applicant's
founding papers and for that reason all other parties were allowed to argue their
points of law. This court is obliged to consider first the point of law raised and it is
only if their point(s) of law are dismissed that the court will be permitted to proceed
as per request of the first respondent.
Points in limine
10. The applicant, second and third respondent raise preliminary points of law.
The applicant's first point in limine was that of lack of urgency and its second point in
limine is like that of first and second respondent. They all argued that the first
respondent followed a wrong procedure in that the due to nature of main appl ication
this matter is govern by provisions of rule 6 (8).
11. The applicant argued that this application is not urgent as the first respondent
does not even attempt to explain to the court what harm or prejudice will ensue if the
matter was to be heard on the return day.
12. After the first respondent's application was removed from the urgent roll the
first respondent approached the office of the Judge President of this division with a
request for a preferential date hearing of the reconsideration appl ication and same
was granted. This matter was brought before me on preferential allocation at the
discretion and prerogative of the Judge President. In my opinion once the matter is
removed from urgent roll the urgency is lost, and it should thereafter be dealt with in
the normal cause of proceedings which includes preferential hearing. It is my finding
that allocation of a matter on a preferential roll has no connection with urgency save
to say the party asking for preferential date is given preference to be heard instead
of waiting in the que. I therefore find that submission that the application lacks
urgency is misplaced and the applicant's point in limine is subject to fail.
13. It was argued on behalf of the applicant and both second and third respon dent
that the order was sought and granted ex parte and the appropriate rule would be
Rule 6 (8) in terms of which the first respondent was required to anticipate the return
day with a 24 -hour notice.
14. Paragraph 1 of the order of Mathabathe AJ reads: "A rule nisi is granted
returnable on 13 May 2025 at 10h00 in the morning or so soon thereafter as the
matter may be heard, calling upon the First Respondent to show cause, if any, as to
why a final orde r should not be granted in the following terms:"
15. Paragraph 4 of the order reads: "The first Respondent may anticipate the rule
nisi with notice of 48 hours to the Applicant."
16. Rule 6 (8) provides as follows:
"Any person against whom an order is granted ex parte may anticipate the
return day upon delivery of not less than twenty -four hours' notice".
The use of the phrase "may anticipate the return day" denotes that the rule refers to
instances where a rule nisi was granted. The rule is distinguish able from rule 6 (12)
(c) in which instance the order granted should be final in its nature.
17. In order to understand the circumstances under which Rule 6 (12) ( c)
becomes applicable the rule should not be read in isolation of Rule 6 (12) (a) and (b)
which reads:
(a) In urgent applications the court or a judge may dispense with the forms
and service provided for in these Rules and may dispose of such matter at
such time and place and in such manner and in accordance with such
procedure (which shall as far as practicable be in terms of these Rules) as it
deems fit.
(b) In every affidavit filed in support of any application under paragraph (a)
of this subrule, the applicant shall set forth explicitly the circumstances which
it is averred render the matt er urgent and the reasons why the applicant
claims that applicant could not be afforded substantial redress at a hearing in
due course
(c) A person against whom an order was granted in such person's
absence in an urgent application may by notice set down the matter for
reconsideration of the order . [My emphasis ].
18. The use of the word dispose in paragraph (a) means that the matter may be
finally settled or dealt with by the court. Paragarpgh (b) in my opinion stresses further
that the disposition re ferred to in (a) is a final decision. It is only when a final order
was granted in accordance with paragraph (a) and (b) that person against who such
an order was granted in his or her absence may apply for reconsideration under Rule
6 (12) (c).
19. Rule 6(8) allows a party against whom a rule nisi was granted to anticipate the
return day within 24 hours' notice and that is what the first respondent should have
done. It is not open to the respondent, or a party affected by the order to choose
which subrule to employ but the nature of the order itself.
20. In CLAASSENS v ZENECA SA (EDMS)BEPERK 1996(1) SA 627 OPD
Hattingh J and Wessels AJ held at 630 C that the term ex parte referred to court
proceedings against a person who has not been given notice thereo f. This is exactly
the case in this matter.
21. In the matter before me there or two points which renders rule 6 (12) (c) to be
inapplicable. The application was not served on the first respondent before the order
was granted and the order granted was int erim calling on the first respondent to
show cause why the order should not be made final.
Referral to LPC
22. It was argued on behalf of the first respondent that this court should make an
order referring the conduct of the legal representatives of the applicant to Legal
Practice Council and the Limpopo Society of Advocates. I'm not persuaded that the
applican t's legal representatives committed any gross misconduct deserving an
order from this court directing LPC or any other regulatory body to conduct
investigations against anyone. The applicant approached the Court exparte with a
prayer for a rule nisi to be issued and the court being satisfied granted the order as
prayed for.
Conclusion
23. In the opinion of this court the first respondent did not only follow the wrong
procedure but carefully choose the procedure that favours its desired results. In the
absence of rule 6 (8) as an alternative the application stands to be dismissed. I have
carefully considered the litigation history between the parties and I do not see a
reason why cost should not follow the order. The facts of this case are not complex
and d o not require employment of two counsels per party. I have also considered the
third respondent's supporting affidavit and the annexures thereto. I do not think
certain documents filed by the third respondent were necessary for the purpose of
this applicat ion and must be excluded from taxation. The third respondent attached
bundles such as a tender document, market study and environmental impact study.
The first respondent should not be unjustly penalized or burden with unnecessary
costs.
Order
In the cir cumstances I make the following order:
a. The application for reconsideration by the first respondent is dismissed.
b. The first respondent is ordered to pay the cost of this application on
party and party scale.
c. Pages 318 to 970 are to be excluded fr om taxation.
R.S MASHIFANE, AJ
ACTING JUDGE OF THE HIGH COURT
LIMPOPO DIVISION, POLOKWANE
APPEARANCES:
Counsel for the applicant : VT Moya
Instructed by : Kgatla Incorporated
Counsel for the first respondent : L Van Gass
Instructed by : Kampherbeek, Twine & Pogrund Attorneys
Counsel for the second respondent : H.F Marx
Instructed by : Jaco Oberholzer Attorneys
Counsel for the third respondent : M.S Monene
Instructed by : Mphela Motimela Attorneys