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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NO.: 53875/13
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: NO
Date: 7 March 2025
E van der Schyff
In the matter between:
WILLOW ACRES HOMEOWNERS ASSOCIATION NPC Applicant
and
CITY OF TSHWANE METROPOLITAN MUNICIPALITY First Respondent
DOUBLE QUICK PROPERTIES 208 (PTY) LTD Second /Third Respondent
ABSA BANK LIMITED Fourth Respondent
AND
CASE NO: 23145/2009
KUNGWINI LOCAL MUNICIPALITY Applicant
and
DOUBLE QUICK PROPERTIES 208 CC First Respondent
WILLOW ACRES HOMEOWNERS ’ ASSOCIATION NPC Second Respondent
JUDGMENT
Van der Schyff J
Introduction
[1] This matter has a protracted history. Double Quick Properties 208 CC (later
Double Quick (Pty) Ltd, referred to as Double Quick 208) erected an illegal
structure on Erf 7[...], Willow Acres Ext. 8. Kungwini Local Municipality accordingly
applied under case number 23145/09 for an order, among others, that the building
be demolished. Kungwini Local Municipality was disestablished and absorbed into
the City of Tshwane Metropolitan Municipality in 2011. Neither Kungwini Local
Municipality before its disestablishment, n or the City of Tshwane Metropolitan
Municipality (hereafter referred to as the municipality or Tshwane Metropolitan
Municipality ) prosecuted the application to finality.
[2] Willow Acres Home Owners Association (“Willow Acres”) , the applicant under case
number 53875/13 , launched this application already in 2013 to obtain a mandamus
directing the municipality to comply with its duties to enforce compliance with the
relevant statutory and other requirements that buildings within its jurisdictional area
comply with approved building plans and zoning, and are not illegally erected.
Willow Acres seeks an order directing the City of Tshwane Metropolitan
Municipality to persist with and prosecute the application issued under case
number 23145/09 to finality.
[3] The two applications , respectively issued under case numbers 53875/13 and
23145/09, were consolidated. Willow Acres and the Tshwane Metropolitan
Municipality share the view that the building erected by Double Quick 208 must be
demolished . Double Quick 208, was in final l iquidation when the application by
Willow Acres was instituted . On 12 July 2024, however, the order for the final
winding up of Double Quick Properties 208 (Pty) Ltd was set aside , and Double
Quick Properties 208 (Pty) Ltd was discharged from liquidation. Willow Acres
subsequently filed a notice of substitution in terms of rule 1 5 of the uniform rules of
court, and Double Quick Properties 208 (Pty) Ltd substituted the second and third
respondents, the erstwhile liquidators.
[4] For purposes of the order that stands to be granted, the true nature of the juristic
person Double Quick Properties 208, and the time of its conversion from a closed
corporation to a private company , is irrelevant. The recent development in Double
Quick 208’s chameleonic juristic nature, is that I was informed during the hearing
on 4 March 2025, that the recently discharged -from-liquidation Double Quick 208
(Pty) Ltd, commenced business rescue proceedings , by its board resolving that the
company commence with business rescue proceedings and the resolution being
filed as prescribed in section 129 of the Companies Act 71 of 2008.
[5] No affidavit was filed by or on behalf of Double Quick Properties (Pty) Ltd
confirming under oath that it commenced voluntary business rescue proceedings.
Counsel for Willow Acres and Tshwane Metropolitan Municipality regarded it their
duty as officers of the court, to inform the court of the information communicated to
them by Double Quick 208 (Pty) Ltd.’s legal representative.
[6] I was tempted to disregard information that do not constitute evidence before the
court. However, if the information is correct, and in the absence of an application in
terms of s 133(1)(b), such an approach would have been futile. The presumed
development in any event does not affect Willow Acres’ application under case
number 53875/2013 and the relief sought by it.
[7] Counsel for the City of Tshwane Metropolitan Municipality submitted that the order
ultimately sought by Willow Acres is just a reflection of the status quo since the
municipality is clearly prosecuting its application to hold Double Quick 208
accountable for its actions by seeking a demolition order. As a result, counsel
contends that the order should not be granted, and if Willow Acres is awarded
costs, the costs should be limited to the date when the municipality filed its replying
affidavit.
[8] I disagree. As for the proceedings under case number 53875/2013, Willow Acres is
entitled to the relief as set out in the draft order handed up when the matter was
argued. It should not be for an entity like Willow Acres to take the Tshwane
Metropolitan Municipality to task for neglecting its statutory functions. This is also
the reason why Double Quick 208’s juristic nature is of no concern for the order
sought by Willow Acres. The order sought by Willow Acres is to oblige the
Tshwane Metropolitan Municipality to fulfill its statutory duties. With regard to the
history of this matter, the filing of a replying affidavit and heads of argument in itself
would have been cold comfort to Willow Acres. The recent development that
proves to be an obstacle in the finalisation of the application under case number
23145/2009 emphasises the need to grant the relief sought by Willow Acres.
[9] As far as costs are concerned, I agree that the matter was rather complex and that
the services of two counsel are justified. I am, however, of the view that the
complexity of the issues raised justifies a cost order on scale B.
[10] As for application 23145/2009, in the absence of an application in terms of section
133 (1)(b) of the Companies Act 71 of 2008, or any submissions that the voluntary
business rescue proceedings are bogus, or an abuse of court process, this court
cannot continue with the legal proceedings. The re is , however, no obstacle
preventing this court from granting an order for certainty to be obtained regarding
Double Quick 208 (Pty) Ltd’s position.
ORDER
In the result, the following order is granted:
Re: Case number 53875/2013
1. A mandamus is issued whereby the CITY OF TSHWANE METROPOLITAN
MUNICIPALITY (“the Municipality”) is directed to persist with and prosecute the
application issued in this court and commenced under case number 23145/2009,
as fast as reasonably possible and effectively to finality, subject to the general
moratorium imposed by Section 133 of the Companies Act, 71 of 2008;
2. The Municipality is ordered to pay the applicant's costs under case number
53875/2013, including the costs of two counsel on scale B, where so employed.
Re: Case number 23145/2009
1. The application is postponed sine die;
2. Double Quick 208 (Pty) Ltd is ordered to file an affidavit accompanied by the
necessary documentary proof, confirming its status as being in voluntary business
rescue , within three days of this order being served via email to its attorney of record,
Hennie Kotzé Attorneys;
3. In the event that no such affidavit is filed, the applicant in case number 23145/2009
may re -enroll the application , supplemented to the extent necessary, before Van der
Schyff J after having obtained a date from her secretary , and the notice of set down
may be served on Double Quick (Pty) Ltd via email to its attorney of record Hennie
Kotzé Attorneys :
3.1. In the event that papers are supplemented, Double Quick 208 (Pty) Ltd must be
served with the supplemented papers before a date for the hearing of the
application is arranged ;
4. The issue of the City of Tshwane Metropolitan Municipality’s wasted costs caused by
the postponement is reserved.
E van der Schyff
Judge of t he High Court
Delivered: This judgment is handed down electronically by uploading it to the
electronic file of this matter on CaseLines.
For Willow Acres HomeOwners’ Association NPC : Adv. JF van der Merwe
Instructed by: AJ van Rensburg Inc.
For the Tshwane Metropolitan Municipality: Adv. JA Motepe SC
With: Adv. K Mapengo
Instructed by: Mothle Jooma Sabdia Inc.
Date of the hearing: 4 March 2025
Date of judgment: 7 March 2025