SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
Case Number: 022833 /2024
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: NO
DATE 23 April 2025
SIGNATURE
In the matter between:
MAKOTI NTHABISENG MAGDELINE First Applicant
SELAHLA SEWELE SARAH Second Applicant
SELOMO NTHABISENG SALAMINAH Third Applicant
MASHAU FUMANI GOLDWIN Fourth Applicant
SINGO ROFHIWA MILLICENT Fifth Applicant
MADIBA LERATOTO MARIA MOSIMA Sixth Appli cant
NONYANE SHARMAIN NTWANANO Seventh Applican t
NICK MOTEBELE Eighth Applicant
MUGWENA TSHIFHIWA ARABI Nineth Applicant
CHARITY MANGANYI Tenth Applicant
NYIKO MUKHARI Eleventh Applicant
and
INDLUPLACE PROPERTY MANAGEMENT (PTY) LTD First Respondent
INDLUPROP I (PTY) LIMITED Second Respondent
TSHIDI MO KOU Third Respondent
THE CITY OF TSHWANE METROPOLITAN MUNICIP ALITY Fourth 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 ’ legal
representatives by email and by uploading it to the electronic file system of this
matter on CaseLines . This matter was heard in open court on the 11 February
2025. The date for hand -down is deemed to be 23 April 2025.
___________________________________________________________________
JUDGMENT
DOMINGO, AJ
Introduction
[1] This is an application brought by eleven applicants who reside at Quagga
Estate, Erf 2[...] R[...] Road, Pretoria West (hereinafter referred to as “the
property”) managed by the first, second and third respondent s. The applicants
are seeking the following relief from the respondents.
1.1 That the first, second and th ird respondents be ordered to restore
electricity and water services permanently at the pro perty , as it is
unconstitutional to block the applicants’ electricity procurement as
alleged ;
1.2 That the first, second and third respondents take full responsibility
regarding the applicants' livelihood as well as the condi tions at the
property, hence the applicants pay the full rental fees at the end of each
month in accordance with the lease agreement ;
1.3 Lastly, to prevent fu ture occurrences that amount to ill -treatment of the
respective applicants who are tenants at the property managed by the
first, second and thir d respondents and that the latter take full
responsibility regarding the applicants ’ lease agreements not based on
individual leaseholders as the complaints of the applicants are
collectively similar to the issue of living conditions at the property.
[2] The first, second and third respondents oppose the appl ication, and at the
outset raise the following three points in limine:
2.1 The applicants have failed to make out a case in its founding affidavit
for the relief sought ;
2.2 Misjoinder of th e third respondent, having no direct or substantial
interest in the matter;
2.3 The relief sought by the applicants is immensely vague and
ambiguous .
Issues requiring determination
[3] The first se t of issues called upon for determinatio n is whether the applicants
have made a a case for the relief sought in its noti ce of motion after the
determination of the points in limine raised by the respondents .
[4] The second issue call ed up on for determination is costs de bonis propriis
against the applicants’ attorneys.
First and third point in limine
[5] I will deal with the first point in limine (failure to make out a case) together with
the second point in limine ( the relief sought is immensely vague and
ambiguous) together as they are interlinked .
[6] The applicants seek a final interdictory relief as part of the re lief sought. The
respondents have submitted that, it is trite, that in order to be successful in
seeking interdictory relief, the applicants will have to show (i) that they have a
clear right; (ii) an injury actually committed or reasonably apprehended; and (iii)
the absen ce of an alternative remedy. All three requirements must be present
and be satisfied. The discre tion of a court to refuse a final interdict, provided t he
three requisites are present is very limited .1
[7] The applicants have pr oduced no facts or evide nce regarding the pur ported
maintenance issues, including issues relating to utilities at the premises . There
are no facts or evidence regarding the factual background on why, when and
how their electricity and water supply was cut.
[8] The applicants have failed to advance any facts or eviden ce relating to any
purported present, fu ture, or past ill -treatments of any of the eleven applicants,
or by any of the respondents.
[9] Neither the Founding Affidavit, nor the Confirmatory Affidavits of the applicants
set out any facts to determine or evaluate on what basis the applicants
formulated the relief they seek .
[10] The determination as to whether a right is clear is a matter of evidence. To
establish a clear right, the applicants must prove on a balance of probability,
facts which in terms of substantive law establish the right relied on.2
[11] The applicants have failed to address and meet any one of the three
requirements for the final interdictory relief sought . The failure to advance facts
and evidence renders me incapable to determine or evaluate the existence of
any clear rights, injury committed or reasonabl y apprehended by the applicants
and the re is the absence of an alternative remedy.
[12] The relief sought by the applicants to order the respondents to restore the
electricity and wate r, to order the respondents to take full responsibility
regarding the applicants livelihood as w ell as the conditions at the property and
1 See Supreme Court of Appeal decision in Hotz and Others v University of Cape Town 2016 4
AII SA 723 (SCA) .
2 LAWSA Vol. 11, 2nd Ed. 397.
to order the respondents to prevent future occurrences of ill -treatmen t is
unsubstantiated, vague, ambiguous, unenforceable, without any logic an d bad
in law.
[13] In Eke v Parsons3 the Constitutional Court held as follows:
“If an order is ambiguous, unenforceable, ineffective, inappropriate, or lacks the
element of bringing finality to a matter or at least part of the case, it cannot be
said that the court that granted it exercised its discretion properly. It is a
fundamental principle of our law that a court order must be effective and
enforceable, and it must be formulated in lan guage that leaves no doubt as to
what the order requires to be done.”
[14] The applicants have failed to make out a case for the relief sought and the
relief sough t is vague and ambiguous, thus I am in agreement with the
submissio ns made by the respondents counsel that it would be impossible for
any of the respondents to determine the obligations flowing from a order in
such terms, rendering the order unenforceable.
[15] The applicants have failed to make out a case for the relief sought and the relief
sought is indeed immensely vague and ambiguous, I accordingly uphold the
respondents first and third point s in limine.
Second point in limine
[16] The respondents second point in limine is the misjoinder of the third
respondent , having no direct or substantial interest in this matter.
[17] The first applicant alleges on the one hand that the third respondent , Mr Tshidi
Mokou is an agent of the first respondent and on the other hand, that the third
respondent holds the leases with the applicants.
[18] It has been submitted that the third respondent does not have any direct and
substantial interest in this ma tter and the applicants have failed to make out any
3 [2015] ZACC 30 para 74.
case against the third respondent or advance any facts upon whi ch it can be
found that the third respondent was correctly joined in his personal capacity.
[19] Having considered the submission made ab ove in respect of the second point
raised in limine , I find merit in the submission as the applicants have failed to
provide any facts or evidence to make out a case against the third respondent
in joining him in his personal capacity .
[20] I accordingly uphold the second point in limine.
Costs de bonis propriis
[21] Counsel o n behalf of the respondents has referred me to the Multi -Links
Telecommunications LTD v Africa Prepaid Services Nigeria Ltd; Telkom SA
SOC Limited & Another v Blue Label Telecoms Limited & Others4 case , in
which the principles relating to costs order de bonis propriis against legal
practitioners were re -stated and explained as follows:
“Only in exceptional circumstances and pursuant to a discretion judici ally
exercised is a party ordered to pay costs on a punitive scale. Even more
exceptional is an order that a legal representative should be ordered to pay the
costs out of his own pocket. It is quite co rrect…that the obvious policy
consideration underlying the court’s reluctance, to order costs against legal
representatives personally, is that attorneys and counsel are expected to
pursue their client’s r ights and interests fearlessly and vigorously without undue
regard for their personal convenience. In that context they ought not to be
intimidated either by their opponent or e ven, I may add, by the court. Legal
practitioners must present their case fearlessly and vigorously, but always
within the context of set ethical rules that pertain to them, and which are aimed
at preventing practitioners from becoming parties to deception of the court. It is
in this context that society and the courts and the professions demand absolute
persona l integrity and scrupulous honesty of each practitioner.
4 [2013] 4 AII SA 436 (GNP) para s 34 and 35.
It is true that legal representatives sometimes make errors of law, omit to
comply full y with the rules of court or err in other ways related to the conduct of
proceedings. This is an everyday occurrence. This does not, however, per se
ordinarily result in the court showing its displeas ure by ordering the particular
legal practitioner to pay the costs from his own pocket. Such an order is
reserved for conduct which substantially and materially deviates from the
standard expected of the legal practitioners, such that their clients, the actual
parties to the litigation, cannot be expected to bear the costs, or because the
court feels compelled to mark its profound displeasure at the conduct of an
attorney in any particular context. Examples are dishonesty , obstructions of the
interes ts of justice, irresponsible and grossly negligent conduct, litigating in a a
reckless ma nner, misleading the court, gross incompetence and a lack of care.”
[22] The applicants ’ application before this court is fatally fl awed and bad in law.
[23] Counsel for the applicants have placed no facts bef ore the court to allow me or
the respondents to remotely determine what the applican ts’ case is about.
[24] The applicants ’ papers submitted in this application were riddled with case law
and legislation, none of which were relevant. The applicants ’ head s of
argument were also riddled with lengthy quotes from various case law, none of
which were applied to any facts or contextualised in order for me or the
respondents to determine its application to ‘non-existing’ facts. It fai led to
advance any argument in support of the requirements for the relie f sought
having been met.
[25] Our courts have in exceptional circumstances ordered costs de bonis propriis.
In the Silinga and Others v Nelson Mandela Metropolitan Municipality5 the court
stated:
“An order that a legal practitioner (or for that matter a representative litigant)
should pay the costs personally carries with it obviously serious consequences
that necessarily impinge upon the rights and interests of that representative. It
5 (CA266/2017) [2018] ZAECGHC 50 (26 June 2018) para 11.
is for this reason that, in dealing wish such cost orders, a practice has been
developed by the courts to afford the affected party notice of the inte ntion to
impose such an order and an opportunity to make representations or
submissions prior to such order being made and is based upon constitutionally
protected fundamental rights to a fair hearing.”
[26] In the present matter, the respondents’ answering affidavit stated that they
would b e seeking an order that the applicants’ attorneys be ordered to pay
costs of the application de bonis propriis.
[27] In Hlumisa Technologies (Pty) Ltd and Another v Voigt N.O. and Others6 the
court stated that notice in an answering affidavit that a cost order de bonis
propriis is being sought is sufficient in terms of notifying the affected party of the
intention to impose such an order.
[28] In the present matter, i t was also submitted by Counsel on behalf of the
respondents that on the 8 April 2024, and before delivering the respondents’
answering affidavit, the respondent s’ attorneys advised the applicants’
attorneys of the flawed application and offered them an opportu nity to withdraw
the application, failing which the respondents’ attorneys would seek costs de
bonis propriis.
[29] Furthermore, on the 4 February 2025 in an email correspondence to the
respondents ’ attorneys, the applicants’ attorneys indicated that they would
furnish the respondents with a notice of withdrawal. The respondents’ attorneys
replied through email correspondence on the 4 February 2025, that they would
proceed to argue costs de bonis propriis and urged the applicants’ attorneys to
be present at the Pretoria High Court at 10h00 on 10 February 2025. They also
informed the applicants’ attorneys that a copy of this email correspondence
would be uploaded onto Case Lines a nd brought to the Judge's attention.
6 (111/2018) [2020] ZAECGHC 133 (1 December 2020) para 22.
[30] Despite the afo resaid warning s and the notice that a cost order de bonis
propriis would be sought by the respondents , the applicants ’ attorneys
persisted with the application .
[31] However, t he applicants’ attorneys on the eve of the hearing of this matter, on
the 10 February 2025, uploaded a notice of withdrawal as attorneys of record.
While t his case was heard in open court on the 11 February 2025, it must be
noted that the opposed motion roll was set down for the week starting from the
10 February to 15 February 2025 .
[32] This application is wholly misconceived, and it is with profound displeasure that
I express my discontent at the behaviour by the applicants ’ attorneys which falls
short of and materially deviates from the standard expected of legal
practitioners , to the detriment of the eleven applicants.
[33] In the premises, I grant the cost order de bon is propriis.
Order
[34] I hereby make the following order:
1. The applicants’ application is dismissed.
2. The applicants’ attorneys are to pay the first, second
and third respondents cost de bonis propriis.
W DOMINGO
ACTING JUDGE OF THE HIGH COURT
PRETORIA
APPEARANCES
For the Applicant: No appearance
For the Respondent: ADVOCATE C ERASMUS instructed
by MJS ATTORN EYS
10