REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
LIMPOPO DIVISION, POLOKWANE
(1)
(2)
(3) REPORT ABLE: YES/
OF INTEREST TOT E JUDGES : YES/t:.J£!'
REVISED . '
In the matter between:
SAMWU POLOKWANE WORKERS FUND
POLOKWANE WORKERS FUND
SOUTH AFRICAN MUNICIPAL WORKERS UNION
-and-
TSHIDISO BUSINESS ENTERPRISE CC
FIRST NATIONAL BANK
In re:
TSHIDISO BUSINESS ENTERPRISE CC CASE NO: 1154112023
1 ST APPLICANT
2ND APPLICANT
3RD APPLICANT
15T RESPONDENT
2No RESPONDENT
APPLICANT
-and-
SAMWU POLOKWANE WORKERS FUND
POLOKWANE WORKERS FUND 2
SOUTH AFRICAN MUNICIPAL WORKERS UNION
In re:
TSHIDISO BUSINESS ENTERPRISE CC
-and-
STANDARD BANK OF SOUTH AFRICA LTD
POLOKWANE WORKERS FUND
CITY OF POLOKWANEMUNICIPALITY
SAMWU LOCAL BRANCH
FIRST NATIONAL BANK
WRITTEN REASONS
MANGENA AJ 1 ST RESPONDENT
2ND RESPONDENT
3Ro RESPONDENT
APPLICANT
15T RESPONDENT
2ND RESPONDENT
3Ro RESPONDENT
4TH RESPONDENT
5TH RESPONDENT
[1] Tshidiso Business Enterprise CC (Tshidiso) has been involved in a litany of
court cases against the respondents (SAMWU). The dispute arises out of the
contract concluded for the provision of services for which the respondents were
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liable to pay on an agreed formula. What l was called upon to decide on has
nothing to do with the contract, but issues related to an order granted by my
brother Diamond AJ on 18 March 2025.
[2] The genesis of the order is briefly as follows: -On the 12 December 2023
Tshidiso approached the court ex-parte in which she sought to interdict SAMWU
from operating / transacting on its Standard Bank and First National Bank
accounts. The orders were granted by my sister Bresler AJ with the return date
of 05 March 2024.
[3] SAMWU anticipated , as it was in law entitled to, and the matter came before
Semenya DJP who reconsidered the ex-parte order and upon consideration of
the facts placed before her by both parties, concluded that Tshidiso was not
entitled to the order. She took umbrage at Tshidiso's failure to disclose crucial
information that would have assisted the court in the adjudication of the matter.
The crucial information related to the fact that there were previous applications
under case numbers 12952/2022 and 3900/2023 which were disposed of and
dismissed. In addition, Tshidiso was granted a substantially similar order under
case number 8781/2023 on 26 September 2023. On the basis of its failure to
act with utmost good faith by withholding crucial information to the court, the
application was dismissed with costs.
[4] Aggrieved by the dismissal order, Tshidiso applied for leave to appeal and same
was granted by Semenya DJP to the full court on 20 September 2024. SAMWU
contends that the appeal has lapsed.
[5] On the 3rd December 2024 Tshidiso appeared before Naude-Odendaal J once
again seeking an order that First National Bank (FNB order) be ordered and
directed not to allow any withdrawals from SAMWU Workers Fund account
pending finalisation of the appeal under case number 11541/2023. This order
came into immediate effect and a rule nisi was issued calling upon respondents
to show cause on 18 March 2025, at 10h00 why this order should not be made
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final. It is unclear on the papers before me whether this application was served
upon SAMWU or not. It is also not clear whether Naude -Odendaal J was
made aware that there is a pending case between the parties under case
number 8781/2023.
[6] In relation to case number 8781/2023 , I may just point out that Kganyago J was
also not pleased with the conduct of Tshidiso in so far as non-disclosure of
material facts is concerned. Relying on Phillips v Director of Public
Prosecutions, 2004 (3) SA 615 (SCA) at para 19, Kganyago J unhesitatingly
found that Tshidiso failed in its duty to disclose all material facts. On this duty,
the learned judge said: "The duty which is upon the applicant is to disclose facts
that might influence the court in deciding the matter in a just manner. It is not
upon the applicant to be selective as to which facts might influence the court. It's
duty is to disclose all, and the court will decide which (ones) are relevant." As a
mark of displeasure , he granted costs in favour of SAMWU on a punitive scale of
attorney and client scale B. He therefore dismissed Tshidiso's application on 05
February 2025.
[7] SAMWU 's celebration was short-lived in that on the 13th February 2025,
Tshidiso once again approached the court in relation to the Standard Bank
account. The notice of motion says that the application was to be heard on 15th
February 2025. The founding affidavit is dead silent on the orders of both
Semenya DJP and Kganyago J. Tshidiso once more failed to make a material
disclosure other than that there is a pending appeal. It is important to state that
Standard bank account was not part of Naude-Odendaal J's order granted on
03 December 2024.
[8] The application in relation to Standard Bank was scheduled to be heard by
Kganyago J on 18 February 2025, but was removed from the roll and later
brought for an urgent hearing before Diamond AJ on 27 February 2025 where it
was again removed from the roll with an accompanying order that Tshidiso pays
the costs.
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[9] The matter came before Diamond AJ who was doing urgent duty on 18 March
2025. This was the date that Naude-Odendaal J's order prescribed as a return
date where parties were to show cause why the order granted on 03 December
2024 should not be made final.
[10] SAMWU appeared in court on the 18 March 2025 together with its attorneys
and counsel and found that the matter was not on the roll.
[11] Tshidiso admits that it is correct that the matter was not on the roll and says
that this was due to a mistake on the part of the office of the Registrar. SAMWU
contends otherwise and argued strenuously that the responsibility lied with
Tshidiso to make sure that the court file is ready for hearing by the presiding
judge. Tshidiso failed to do this and when the court (presiding judge, Diamond
AJ) indicated that the file was not before him because the matter was not on the
roll SAMWU together with its attorneys left.
[12] When the file was later found on the same day, Diamond AJ enrolled the
matter and after listening to Tshidiso 's submissions , gave an order interdicting
SAMWU from operating both FNB and Standard Bank account. This order was
made in the absence of SAMWU and reads as follows: -
" Having heard counsel for the applicant and having considered the
documents read on file of record by the applicant it is hereby ordered
that: -
1. It is hereby ordered that the rule nisi is hereby confirmed as
follows;
2. Directing that the matter be dealt with as one of urgency in
terms of Rule 6(4) and Rule 6(12) and that the normal High
Court Rules relating to this application has not complied with
Rules of this court, that failure to do so is condoned.
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3. The fourth respondent , First National Bank is ordered,
and directed not to allow any withdrawals from account
SAMWU workers fund account number xxxxxxxxx pending
finalisation of the appeal case number: 11541/2023 in this
matter.
4. It is ordered and directed that the respondent, Standard
Bank of South Africa Limited is interdicted from allowing
any withdrawal from account number xxxxxxxx until all
disputes are finalised by court order or by settlement.
5. No order as to costs."
[13] SAMWU approached the court to have the order (Diamond AJ order)
rescinded on two grounds, namely that it was not competent for Diamond AJ to
grant an order against Standard Bank on the basis of a rule nisi issued by
Naude-Odendaal J in December 2024 as that order related only to FNB.
[14] Secondly , Diamond AJ was aware that SAMWU was in court earlier in the
day and demonstrated its readiness and desire to present its case. The matter
was not on the roll and the court had at that stage not read the file and/or
prepared on it. After its representatives had engaged with the judge, they left on
the understanding that the matter was not on the roll.
[15] Mr. Thobejane , for Tshidiso disagrees and argued that SAMWU was called
by the court to appear on the 18th March 2025 and should have waited until
excused by the court. Had they waited whilst he was sorting the "mistake" with
the office of the Registrar, the court would not have granted the order(s) in their
"absence". Mr. Thobejane urged me to find that SAMWU engineered its
absence, and the court should not assist them. He called in aid the judgment of
the Constitutional Court involving Mr. Zuma and "the state capture commission ".
7
[16] SAMWU contends otherwise and takes the view that on the objective facts, it
attended court and cannot be blamed for leaving when the presiding judge told
them that the matter was not on the roll. The court never said to them that they
should wait whilst Tshidiso 's attorney is sorting out the matter with the
Registrar. They argued that their "absence" when the matter was enrolled and
heard by Diamond AJ cannot be equated with the absence in the context of Mr.
Zuma. The difference between them and Mr Zuma is that they came to court and
Mr Zuma refused to go to court. This is a distinction with a difference as wide as
an ocean and can never be placed in the same category. With this I agree.
[17] The other issue related to the Standard Bank inclusion in the order of 18
March 2025 when same was not part of the order granted by Naude-Odendaal
Jon 06 December 2024. As I understand SAMWU's case, it has been operating
on the Standard Bank account since the dismissal of Tshidiso's application by
Semenya DJP. This remained the position until the 18th March 2025 when
Diamond AJ "confirmed' the rule nisi in their absence in circumstances where
Standard Bank account was not supposed to have been included. They argued
that the inclusion of Standard Bank on the confirmation order was an error
committed by the court in their absence. They attack this order on two fronts,
namely that the parties were never called upon to argue a joinder of Standard
Bank as there was no joinder application. Secondly Diamond AJ could not have
"confirmed ' Naude-Odendaal's order as same did not include Standard Bank.
[18] The application issued on 13 February 2025 in relation to Standard Bank
was removed by Diamond AJ from the roll on 27 February 2025 with a costs
order against Tshidiso. There was no order that it was going to be heard on 18
March 2025 together with a rule nisi issued by Naude-Odendaal J. The granting
of the order inclusive of the Standard Bank account under one composite order
in circumstances where there was no proper joinder in terms of Rule 1 O is
patently erroneous .
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[19] The principles governing rescission applications are trite. The Supreme Court
of Appeal reminded us of the proper approach as recent as 31 March 2025 in the
matter of Obiang v Janse Van Rensburg and others [2025] ZASCA 30 (31
March 2025). It said:
"Rescission is a remedy available only in exceptional cases. Where the order
is made in the absence of a party due to the omission of the other party to
serve legal process on it, the party in whose absence the order was made
may apply for rescission of the judgment in terms of Rule 42 (1) (a) of the
rules. That party would bear the burden to justify the default that led to an
adverse decision being made against him or her. The words "absence of a
party affected thereby" in rule 42(1) are intended to protect a litigant whose
presence was precluded as a result of a procedural irregularity in the
proceedings . A litigant who elected to be absent will enjoy no protection under
the rule. The order sought to be rescinded must have been erroneously
granted because, at the time of its issue, there existed a fact the judge was
unaware of which would have precluded the granting of the order and would
have induced the judge if aware of it not to grant the order. Even where the
requirements for rescission are met, a court retains the discretion to refuse an
order for rescission ".
[20] On the facts of this case, it is apparent that SAMWU was not in deliberate
default in relation to the rule nisi which called upon them to appear in court on the
18th March 2025. They honoured the court's invitation, and the matter was not on
the roll due to what Tshidiso calls the Registrar's mistake. When SAMWU left, it
did so not out disrespect for the court but because the matter was not on the roll.
To expect them to wait until excused by the court when it was not known whether
the file will be found or not is unjustifiable in the circumstances.
[21] SAMWU was also negatively affected by the order of Diamond AJ to the
extent that it was "confirmed' in their "absence" when the court was aware that
they appeared earlier that morning to oppose the "confirmation " of Naude-
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Odendaal J's rule nisi. The inclusion of Standard Bank in the "confirmation "
order was a procedural irregularity entitling SAMWU to the relief it seeks under
Rule 42(1 )(a).
[22) Guided by the applicable principles in rescission applications, I granted an
order rescinding Diamond AJ's order issued on 18 March 2025.
[23) With the above said, this court was recently rebuked by the SCA regarding
the manner in which it handled matters with particular reference to res judicata.
The censure was well-meant , and it brought much needed alertness and
attentiveness on the part of the judges in the performance of their duties.
See: Board of Governors of Mitchell House School & Others v T KM
(748/2023) [2025] ZASCA 15 (25.02.2025)
[24] It however needs to be stated that judges rely on legal practitioners to present
their client's cases with utmost honesty and good faith. What happened in this
case attests to the failure of the legal representative to observe the duties he/she
owes to the court. The papers in all the applications which served before the
various judges, since 2023 were drafted by a legal representative who knew and
or was aware that she/he has an obligation to disclose previous cases which
served before the court and were dismissed. He failed to do so, motivated by
nothing but ·desire for instant glory in the eyes of his/her client. This conduct
should not be countenanced.
[25) In conclusion , I consider it appropriate to remind legal practitioners of what
the court said in Mzayiya v Road Accident Fund (48012020) [2020] ZAECELLC
15; [2021] 1 All SA 517 (ECL) (17 September 2020) and offer advance apology
for a long quotation. It said:-
[83] "A legal practitioner has a pre-eminent duty to the
court not to embark on a litigation plan that will
mislead the court and this includes misleading the
court on evidentiary and legal points. He is not
10
permitted to knowingly offer or rely on false
evidence or to misstate evidence. He may not
induce a witness to give dishonest evidence or to
depose to an affidavit containing a version
different to what he knows to be true facts. He is
not permitted to draft a statement of case, an
affidavit or any other document which contains
any statement of fact which is at variance with or
unsupported by his instructions. To suppress
evidence or worse still to suborn perjury, is to
sabotage the administration of justice and it
strikes at the heart of the legal practitioner 's duty
to the court.
[87] The misleading of the court can take place by way
of both commission and omission. As to the latter,
to every legal practitioner comes those implacable
moments when he is called upon to make a
disclosure in respect of a difficulty in or challenge
to the granting of an order which the Presiding
Judge, not having the attributes of papal
infallibility , has either overlooked or is unaware
and which may result in the client losing his case.
The legal practitioner must step-up and must not
shirk his duty ...... If because of the disclosure the
order is refused, well then, the legal practitioner
would have honourably fulfilled his role in the
proper administration of justice.
[93] Legal practitioners must refuse to follow
instructions from their clients if to do so would put
the administration of justice and the public's faith
in the profession in jeopardy. Cases can and
should be fought fearlessly but they must be
fought within the bounds of honour and propriety ."
I 1
[26] What happened in this case was a failure of ethics on the part of the legal
practitioner and had the potential to result in different/multiple orders not
consistent with each other and at worst having the effect of overturning other
judges' orders in violation on the principle of res judicata. This should be
discouraged.
~ ~NGENAAJ
ACTING JUDGE OF THE HIGH COURT
LIMPOPO DIVISION, POLOKWANE
APPEARANCES
FOR APPLICANTS/RESPONDENTS
FOR RESPONDENTS/APPLICANTS
HEARD ON
REQUEST OF REASON ON
DELIVERED ON : Adv. M R Maphutha +
Adv. P M Seloga
(Pt 2nd & 3rd App/Resp)
GM TJIANE ATTORNEYS INC
: Adv. L E Thobejane
BOTHA MASSYN & THOBEJANE
ASSOCIATED ATTORNEYS
(15T Resp/App)
: 29 April 2025
: 30 April 2025
: 09 May 2025