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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
Case Number: 2025 -028096
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: YES
DATE : 04 APRIL 2025
SIGNATURE
In the matter between:
D[...] T[...] M[...] First Applicant
J[...] N[...] M[...] Second Applicant
and
M.C VAN DER BERG ATTORNEYS First Respondent
M[...] P[...] (FORMALY M[...] ) Second Respondent
P[...] L[...] M[...] M[...] Third Respondent
Delivered: This judgment was prepared and authored by the Judge whose name is
reflected and is handed down electronically by circulation to the parties/their legal
representatives by e -mail and by uploading it to the electronic file of this matter on
Caselines. The d ate for hand -down is deemed to be 04 April 2025.
JUDGMENT
KUBUSHI, J
Introduction
[1] The First Applicant and the Second Applicant (“the Applicants”) launched an
urgent application seeking an order in the following terms:
1. Condoning the failure by the Applicants to comply with the ordinary
rules relating to enrolling, timeframes and sittings of this Honourable
Court, on the basis that the application is urgent as envisaged by
Uniform Rule 6(12);
2. That the First Respondent is interdicted and restrained fr om releasing
and/or dispersing an amount of R304 619.20 from the Second
Respondent's 50% share of the sale proceeds in respect of the sale of
the immovable property, fully described as, ERF 9 […] Clubview
Extension 63 Township, to the Second Respondent;
3. That, pending the final determination of the legal proceedings instituted
by the Applicants against the Second Respondent under case number:
2025 -027728, the Second Respondent's portion of the 50% share of
the sale proceeds, in the amount of R304 619.20 still in the possession
of the First Respondent, be retained in the First Respondent's
Attorneys Trust Account and invested accordingly;
4. In the event that the First Respondent has already dispersed R304
619.20 of the sale proceeds to the Second Respondent:
4.1 That the Second Respondent is hereby interdicted and
restrained from utilising the amount of R304 619.20 from the
50% sale proceeds received from the Third Respondent in
respect of the sale of the immovable property, ERF 9 […]
Clubview Extension 63 Town ship, pending the final
determination of the legal proceedings under case number:
2025 -027728;
5. Costs of the Application in the event of opposition; and
6. Granting the Applicants such further and/or alternative relief as this
Honourable Court may deem justifi ed by the facts set out in the
Founding Affidavit.
[2] Essentially, the Applicants seek the preservation of the amount of
R304 619.20 pending the final determination of the legal proceedings instituted by
the Applicants against the Second Respondent under case number: 2025 -027728 .
The said amount is a portion of the Second Respondent’s 50% share of the sale
proceeds of the property ERF 9[…] Clubview Extension 63 Township .
[3] The First Respondent has, together with a submission affidavit, filed a notice
to abide by the decision of the court, subject to the relevant statement it address ed in
the submission affidavit. In the submission af fidavit, the First Respondent alleges
that it was instructed to attend to the transfer of the immovable property previously
owned by the Second Respondent and Third Respondent. The transfer was duly
registered in the name of the purchasers on 19 February 2 025. The net proceeds
from the sale were to be shared equally between the Second Respondent and the
Third Respondent . According to the First Respondent, an amount of R304 619.20
was erroneously paid into the Third Respondent’s bank account, instead of bein g
split in accordance with the agreed terms of the divorce settlement between the
Second Respondent and the Third Respondent . Despite numerous demands, the
amount remains with the Third Respondent. This is not denied by the Third
Respondent, and as such, a t the time of the hearing of this application, the Third
Respondent had still not paid over the money to the First Respondent. This is the
money that the Applicants seek to have preserved pending the finalisation of the
legal proceedings instituted agains t the Second Respondent by the Applicants.
[4] The application is opposed only by the Second Respondent. Her answering
affidavit was filed late, with an application for condonation. The condonation
application is unopposed, as such, I am of the view that it ought to be granted.
[5] The Third Respondent appeared personally in court without legal
representation. He confirmed that he does not require legal representation and will
abide by the decision of the court. It is worth noting that, although the Thir d
Respondent is cited as a party to the proceedings, no relief is specifically sought
against him.
[6] The Third Respondent is the son of the Applicants. He was married to the
Second Respondent. During the subsistence of the marriage, they purchased
property, the proceeds of which are the subject matter of these proceedings. When
their marriage fell apart, they entered into a settlement agreement which was made
an order of court. In terms of the settlement agreement, they were to share the
marital prope rty in equal shares.
[7] This application revolves around the proceeds of the property. It is alleged
that part of the funds used to purchase the property were, according to an oral
agreement, loaned to the Second Respondent and the Third Respondents by t he
Applicants. Now that the property has been sold, the Applicants want the proceeds
of the sale to be used to refund that loan. According to the Applicants, this was also
agreed upon between the parties. The Second Respondent disputes the existence of
both the oral loan agreement as well as an agreement that such a loan, if it existed,
would be paid out of the proceeds of the sale of the property. As such, the Second
Respondent wants her share of the proceeds of the sale to be paid directly to her as
per the divorce settlement, which was made an order of court. In the meantime, the
Applicants are alleged to have instituted a civil claim against the Second Respondent
for the refund of a portion of her share of the alleged debt (the loan), which civil claim
is still ongoing.
Urgency
[8] As earlier stated, the Applicants seek the relief set out in the notice of motion
in the urgent court. They want the application to be heard on an urgent basis,
claiming that the funds they seek to preserve will be dissipated before the civil claim
litigation is finalised.
[9] Urgency is regulated in terms of rule 6(12) of the Uniform Rules of Court. The
rule provides that:
(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 is such manner and in accordance with such
procedure (which shall as far as reasonably practicable be in terms of
these rules) as it deems fit.
(b) In every affidavit or petition filed in support of any application under
paragraph (a) of this subrule, the applicant must set forth explicitly the
circumstances which is averred render the matter urgent and the reasons
why the applicant claims that applicant could not be afforded substantial
redress in due course.
[10] In M M v N M and Others ,1 the court , dealing with the rule 6(12) procedure,
had this to say:
“[6] Notshe AJ in East Rock Tradin g 7 (Pty) Ltd v Eagle Valley Granite (Pty)
Ltd,2 stated:
1 (15133/23P) [2023] ZAKZPHC 117 (18 October 2023).
2 (11/33767) [2011] ZAGPJHC 196 (23 September 2011), para 6 and 7.
‘The import thereof is that the procedure set out in rule 6(12) is not
there for the 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 underpin ned 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 substan tial redress.’
[7] The import of this is that the test for urgency begins and ends with
whether the applicant can obtain substantial redress in due course. It
means that a matter will be urgent if the applicant can demonstrate,
with facts, that the appli cant requires immediate assistance from the
court, and that if his application is not heard on an urgent basis that
any order that he might later be granted will by then no longer be
capable of providing him with the legal protection he requires.”
[11] For the Applicants to succeed in this application, they must show why this
application should be heard in the urgent court. In doing so, they must also show that
any delay in launching this application was not due to self -created urgency. In
addition, they m ust demonstrate why they claim that they could not be afforded
substantial redress in due course.
[12] In deciding on the issue of urgency, sight should not be lost that the relief
sought by the Applicants in this matter is for the preservation of the money in
question, and not payment thereof, which will be decided in the action proceedings
that the Applic ants allege they have instituted against the Second Respondent.
[13] The urgency, therefore, in my view, was triggered when, by email on 19
February 2025, the First Respondent informed the Applicants that the Second
Respondent had inst ructed it to pay her portion of the proceeds directly to her. The
application became more urgent when the First Respondent responded to the email
sent by the Applicant’s attorneys, requesting the First Respondent to hold on to the
disbursement of the money , by stating that, absent a court order, it would disburse
the money to the Second Respondent on 20 February 2025.
[14] Was the urgency self -created? No. In my view, the urgency is not self -created
as it could not have been triggered at any time before 19 February 2025. It could
only have been triggered as already alluded above. The Second Respondent’s
suggestion that the urgency is self -created because the Applicants could have
instituted proceedings against the Second Respondent, for the payment of t he
alleged debt, at the time of the institution of the divorce proceedings or upon
dissolution of the marriage through the divorce settlement and subsequent court
order, is without merit.
[15] The question that follows is whether the Applicants would be afforded
substantial redress in due course. The court in E.M.W v S. W,3 stated the following:
“[11] It is trite that the correct and the crucial test to be applied in urgent
applications and c onfirmed that it is the true test is whether or not an
applicant will be afforded substantial redress in due course. (See the
matter of E ast Rock Trading 7 (Pty) Ltd and Another v Eagle Valley
Granite (Pty) Ltd and Others (11/33767) [2011] ZAGPJHC 196 (23
September 2011). This in a nutshell means, if the matter were to follow
its normal course as laid down by the rules, an Applicant will be
afforded substantial redress. If he cannot be afforded substantial
redress at a hearing in due course , then the matter qualifies to be
enrolled and heard as an urgent application. It means that if there is
some delay in instituting the proceedings, an applicant has to explain
the reasons for the delay and why despite the delay he claims that he
cannot be afforded substant ial redress at a hearing in due course.”
3 (26912/2017) [2023] ZAGPJHC 710 (15 June 2023) .
[16] The Second Respondent contends that the Applicants will be afforded
substantial redress in due course because they have issued summons against her,
and she is employed.
[17] The Applicants’ contention is th at if the money is used, there will be no
substantial redress in due course for them. They have brought this case on the
basis that there is fear of the funds dissipating if not preserved. They argue that the
funds should be preserved so that their victor y should not be hollow. To support the
allegation of dissipation of the funds, they aver that the Second Respondent does
not have assets that can be used as security for the payment of the debt in due
course. They also mention the previous financial diffic ulties the Second Respondent
endured together with the Third Respondent, during their marriage, which led to
them taking a loan from the Applicants.
[18] The Second Respondent does not address these issues in her answering
affidavit. Save for the denial o f the loan agreement, she does not state whether she
has the necessary funds or assets to secure the amount of money the Applicants are
claiming against her, should she be found liable. However, she indicates that she is
in desperate need of money, as she is currently staying with a friend. She requires
the money to enable her to move out of her friend’s home. This, in my view, is
enough to indicate that the Second Respondent’s financial position is such that the
Applicants may not be afforded substantial redress in due course. Consequently, the
matter ought to be dealt with on an urgent basis.
[19] It is also worth noting that there were two applications launched. The first
application was for interdictory relief to stop the First Respondent from paying out the
money to the Second Respondent. This application was filed prior to the payment
being made. The application could not proceed because, in the meantime, the First
Respondent had already paid out the money. However, fortunately (or unfortunately),
the money was erroneously paid to the Third Respondent instead of the Second
Respondent. Based on a letter of demand written by the First Respondent to the
Third Respondent, demanding that the money be paid back into its banking account,
the Applicants laun ched the present application seeking to interdict the First
Respondent and the Second Respondent from dealing with the money.
Mootness of the relief sought
[20] First and foremost, from the papers as they stand, the relief sought by the
Applicants is improper. They seek an order to preserve funds which are neither in the
possession of the First Respondent nor the Second Respondent. The funds, it
appears, are in the possession of the Third Respondent, but no relief is sought
against him. T he Applicants knew, at the time of drafting their founding papers, that
the money they seek to preserve is with the Third Respondent. This is clearly stated
in paragraph 48 of the founding affidavit, which reads as follows:
“48. I was informed by the Thir d Respondent that he was erroneously paid
an amount of R331 522.19, which seemingly/presumably is Second
Respondent's 50% proceeds of the sale of the immovable property.”
[21] The Applicants’ excuse for not seeking any relief against the Third
Respondent is their understanding that the Third Respondent was to pay that money
back to the First Respondent. However, by the time the matter appeared before me,
the money had not been paid over to the First Respondent and there was still no
relief sought against t he Third Respondent. Hence, the relief sought by the
Applicants is improper.
[22] At the commencement of the hearing, it was conceded on behalf of the
Applicants that the money was still with the Third Respondent, who was not in court.
The matter was stood down twice to grant the Applicants’ counsel an opportunity to
rectify the Applica nts’ papers and to await the appearance of the Third Respondent.
[23] When court resumed, the Applicants, through their counsel, and without
having amended their papers, sought to rectify the situation by invoking Prayer 6 of
the notice of motion, which reads as follows:
“6. Granting the Applicants such further and/or alternative relief as this
Honourable Court may deem justified by the facts set out in the
Founding Affidavit.”
[24] The Applicants sought to make use of the prayer for further and/or alternative
relief, by proposing to abandon Prayers 1 and 2 of the notice of motion and
substitute them with a prayer reading as follows:
“That pending the final determination of the legal proceedings instituted by the
Applicants against the Second Respon dent for the recovery of the loan
advanced by the Applicants to the Second and Third Respondents for the
initial acquisition of the immovable property ERF 9 […] Clubview Extension 63
Township by the First and Second Respondent, under case number 2025 -
027726, Second Respondent's 50% share of the sale proceeds still in the
possession of the Third Respondent be deposited in the Trust Account of Ezra
Matlala Attorneys and invested accordingly;”
[25] To fortify this argument, the Applicant’s counsel referred to an old judgment of
1946 in Queensland Insurance Co Ltd v Banque Commerciale
Africaine (“Queensland Insurance”) ,4 which was applied with approval in Hirschowitz
v Hirschowitz .5 The submission is that even though Queensland Insurance was
decided in 1946, the principles enunciated therein, still apply today.
[26] It was brought to the attention of the Applicants’ counsel that, without an
amendment of the notice of motion, the proposal she seeks under the rubric of
further and/or alternative relief will not pass muster. Counsel then moved an
application from the bar for the amendment of the notice of motion to read that ‘ the
Third Respondent is the one interdicted from spending the money ’. This, however,
was not a well thought out amendment because it now differed materially from the
Applicants’ initial proposition, which sought to include the payment of the money into
the trust account of the Applicants’ attorneys.
[27] If an order is made that the Third Respondent should not spend the money, it
means that the money remains with him until the finalisation of the main action. He
should simply not spend it. This contrasts with the initial proposition which was for
l4 1946 AD 272 .
5 1965 (3) Sa 407 (W) .
the Third Respondent to pay the money in the trust account of the Applicants’
attorneys.
[28] The law regarding the necessity for an appropriate amendment of a claim and
the limits of a prayer for alternative relief, is contained in the judgment of Tindall JA in
Queensland Insuran ce. From my own research, I could not locate any judgment from
the Supreme Court of Appeal that was decided in the constitutional dispensation, nor
could I find any judgment from the Constitutional Court on this point. None was also
referred to by any of t he counsel in this matter. Therefore, although old, Queensland
Insurance appears to be the only authority from the Supreme Court of Appeal (then
the Appellate Division) that must be followed by all courts, on the issue under
discussion.
[29] The following passages in Queensland Insurance have relevance at 286:
‘In regard to the judgment for £2 450, in my opinion, the plaintiff was not
entitled to claim it on the action as framed. The action is based on the policy;
the claim for £2 450 is based on the compromise arising from the acceptance
of the tender in the alternative pleas. The prayer for alternative relief does not
help the plaintiff over the difficulty. It is unnecessary to consider whether the
practice of including such a prayer is deriv ed from the Roman -Dutch or the
English practice. In the Roman -Dutch practice according to Van Leeuwen
RDL5.15.8, this prayer (the so -called clausule salutaire asking for such other
relief as the court may deem best for the plaintiff) is of such effect that every
right to which the plaintiff may in any way be entitled upon the allegations in
his claim, is thereby considered to be included in the prayer. See also Voet
2.13.13 and Van der Linden Jud Pract 2.3.7 vol 1 at 147. The effect of the
prayer for 'such further or other relief as the nature of the case might require'
in the English practice seems to be the same. See Cargill v Bower 10 ChD502
at 508, in which Fry LJ pointed out that the prayer for alternative relief is
limited by the statement of fact in t he declaration and by the terms of the
express claim, and that a plaintiff cannot get, under the prayer for alternative
relief, anything that is inconsistent with those two things.
The fact, however, that the plaintiff could not properly get judgment for £2 450
on his action as framed does not necessarily entitle the defendant to have the
judgment set aside. Mr Horwitz contended that if an application for an
amendment of the declaration had been made at the trial, the learned Judge
should have and would ha ve granted it, and he asked that, if this court upheld
the defendant's point based on the form of the action, it should now allow the
necessary amendment. The terms of the reasons of Blackwell J in addition to
what I have stated above, also lead one to inf er that the point that the form of
the action disentitled the plaintiff from getting judgment for £2 450 was not
taken before him. Be that as it may, I can find nothing in his reasons which
bears out the argument on behalf of the defendant that, if an amen dment had
been applied for, the learned Judge would have refused it. And I think that in
the interests of justice this court should now allow the necessary amendment,
which would take the form of an alternative claim alleging that, if the
chemicals in ques tion were not harmless, but dangerous and liable to catch
fire spontaneously, and in consequence the policy was voidable and the
defendant elected to avoid it, any concealment or misrepresentation by the
plaintiff as to the nature of the goods insured was innocent and the plaintiff is
entitled to a refund of the premium paid; and a prayer for judgment for £2 450.
It seems to me that such an alternative claim would validly have been
included in the original declaration.’
[30] In Johannesburg City Council , the court, relying on Queensland Insurance ,
overturned the judgment of the court a quo where the Applicant relying on the prayer
for further and/or alternative relief, did not amend the notice of motion. In that
judgment, the Applicant’s counsel c onceded at the hearing that the interim relief had
been sought on an incorrect cause of action, in that, the Applicant should instead
have attacked the respondent’s decision, and that the interim interdict should have
been based on that cause of action. Co unsel argued, however, that because the
Applicant has justified this decision in the replying affidavit, the Applicant could
change its cause of action and substitute it with the one stated in the replying
affidavit . Without an amendment to the notice of motion, the court could , under the
cloak of the prayer for alternative relief, issue a temporary interdict to remain in force
pending the determination of the review proceeding s. The court a quo upheld this
argument. This was, however, overt urned on appeal. The appeal court held that:
“I think that the learned Judge misdirected himself in the following respects:
1. It was not appreciated that this was not a case of merely "new
matter" appearing in the replying affidavit. It amounted to an
abandonment of the existing claim together with its cause of action
and the substitution of a fresh and completely different claim based on
a different cause of action.
2. Once this new course of action is the basis of a new claim the
original notice of motion, without suitable amendment was inadequate
to sustain a claim for a temporary interdict as the original
temporary interdict was being claimed on the basis of a completely
different alleged right. The prayer for alternative relief then became a
rather torn "cloak" which could not provide any refuge for the
applicant.”
[31] In Chao v Gomes (“Chao ”),6 the court had an opportunity to deal with a matter
where the defendant sought relief in terms of the further and/or alternative prayer in
the notice of motion in which condonation was sought. The defendant in that case
argued for entitlement to seek an ex tension of the time period contained within Rule
18(11) of the Uniform Rules of Court, using the prayer for further and/or alternative
relief. Originally, the Defendant, like in this case, sought relief without any
amendment to the notice of motion, relyin g on the further relief prayer alone. Later, it
presumably recognising the difficulty it faced, sought an appropriate amendment to
the notice of motion. The court, when declining to grant the amendment, remarked
as follows:
“[17] The amendment is sought at an extremely late stage with very little
notice to the plaintiff. The plaintiff has not been afforded an opportunity of
6 (2010/16410) [2012] ZAGPJHC 103 (21 May 2012).
filing an appropriate answer to the affidavit filed by the defendant dealing with
the position on the basis of an amended notice of m otion. The relief claimed in
the notice of motion as amended is completely at variance with the relief
currently claimed and is dependent upon a different cause of action. Two
courses are available for me to follow. I could allow the amendment , grant a
postponement and afford the plaintiff an opportunity of dealing with the
application on the basis of the amended notice of motion. I could refuse the
amendment , and the defendant would then be free to take whatever further
steps it wishes. The prejudice the p laintiff suffers if the latter course is
followed is that the proceedings are not finalised. The prejudice the defendant
suffers if I follow the first course is that it must bring a fresh application. It
appears to me that the interests of justice dictate that the prejudice which the
plaintiff suffers in the event of a postponement should not be permitted. There
is no effect on costs as the defendant will have been substantially
unsuccessful in all the matters before me and will have to pay costs. I
accordi ngly decline to amend the notice of motion as sought by the
defendant.”
[32] As already mentioned, in this instance, it is not clear whether the Applicants
seek an amendment to stop the Third Respondent from using the money or whether
they want the Third Respondent to be ordered to pay the money into the trust
account of Ezra Matla la Attorneys. Fundamentally, the Applicants have not
withdrawn the application against the First Respondent and the Second Respondent,
who, it has been conceded, have been wrongfully cited in the papers, as suggested
by the court to their counsel. The Seco nd Respondent, as a party to the proceedings
and having an interest in the money sought to be preserved, has objected to the
amendment, citing that she was not provided time to file an appropriate answer to
the amendment.
[33] Like in Chao , two courses are available for me to follow. I could allow the
amendment , grant a postponement and afford the Second Respondent an
opportunity of dealing with the application on the basis of the amended notice of
motion. I could refuse the amendment and dismiss the appl ication .
[34] I can accept, without concluding, that a case has been made out for the
preservation of the money in question. What, however, remains a challenge for the
Applicants is that the cause of action canvassed in the papers is to interdict the First
Respondent a nd/or the Second Respondent. Nothing is said about interdicting the
Third Respondent, whereas the amendment they seek to make in the notice of
motion is a prayer for an order interdicting the Third Respondent. As such, the
amendment and/or the proposal to substitute Prayers 1 and 2 sought by the
Applicants are not justified by the facts set out in the Founding Affidavit . As is
pointed out in Queensland Insurance , ‘the prayer for alternative relief is limited by the
statement of fact in the declaration and by the terms of the express claim, and that a
plaintiff cannot get, under the prayer for alternative relief, anything that is
inconsistent with those two things. ’
[35] The argument by the Applicants’ counsel that since a case has been made out
for the preservation of the money, an interdict should be granted against whoever is
found to be in possession of that money, is not sustainable. As already mentioned,
much as it can be accepted that a case has been made out for the preservation of
the money, an incorrect cause of action is cited in the founding papers, which
renders the amendment and/or the substitute of Prayers 1 and 2 sought by the
Applicant s not to be justified by the facts set out in the Founding Affidavit .
[36] Furthermore, if Chao is to be followed, it is obvious that the amendment is
sought at an extremely late stage with very little or no notice at all to the
Respondents. The Respondents have not been afforded an opportunity of preparing
an appropriate answer to the amend ment of the notice of motion sought by the
Applicants. The relief claimed in the notice of motion as sought to be amended is
completely at variance with the relief currently claimed and is dependent upon a
different cause of action , which is not even traversed in the Applicants’ papers . This
is litigation by ambush at its best and is not permissible.
Costs
[37] It is trite that costs are always within the discretion of the court. In the exercise
of my discretion, it is my view that no party should be awarded costs in this matter
since none is substantially successful.
Order
[38] Therefore, I make the following order:
1. Condonation for the late filing of the answering affidavit is granted.
2. The application is dismissed.
3. No order as to costs is made.
_________________________
E.M KUBUSHI
JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
APPEARANCES:
For the Applicants:
First Applicant s: Adv L Maite
Instructed by: Ezra Matlala Attorneys
Tel: 081 790 9078
First Respondent’s Attorney: DU PLESISS INC.
Tel: 012 664 6767
Second Respondent’s Attorney: MAILULA SEFOKA ATTORNEYS
Tel: 011568 1993
Date of the hearing: 12 March 2025
Date of judgment : 04 April 2025