IN THE HIGH COURT OF SOUTH AFRICA
FREE STATE DIVISION, BLOEMFONTEIN
In the matter between
MINISTER OF POLICE
NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS
and
MALEFETSANE EZEKIEL LETSHELA
SHERIFF PRETORIA CENTRAL Reportable / Not
reportable
Case no: 7133/2024
First Applicant
Second Applicant
First Respondent
Second Respondent
Neutral citation: Minister of Police and Another v Letshela and Another [2025]
Coram: Mpama AJ
Heard: 20 February 2025 1
Delivered: This judgment was handed down electronically by circulation to the parties'
representatives by email and released to SAFLII. The date and time for hand-down is
deemed to be 14h00 on 19 May 2025.
Summary:
2
ORDER
1. The special defence of /is pendens raised by the respondent is granted and the rule
nisi granted on 13 December 2024 is discharged.
2. The first and second respondents are ordered jointly and severally, the one paying
the other to be absolved, to pay the respondent's costs of the application on Scale C as
envisaged under rule 67 A of the Uniform Rules of the Court
JUDGME NT
MpamaAJ
[1] The applicants seek a final interdict against the first and second respondents to
restrain the respondents from executing a warrant of execution obtained by the first
respondent. The application is opposed by the first respondent only.
[2] The applicant launched an ex parte urgent application on 13 December 2024 and
a rule nisi was granted with the following relief:
1. This matter is heard on an urgent, ex parte basis.
2, The forms and service provided in terms of the Rule 6(10) of the Uniform Rules of
Court is dispensed with and non-compliance with the usual forms and manner relating
to service as prescribed by the Uniform Rules of Court is condoned .
3. A rule nisi, with return date Thursday, 30 January 2025 at 09h30, is issued calling on
the first respondent and/or second respondent to show cause why an Order in the
following terms should not be made final:
3.1. The execution of court orders of the Regional Magistrate Tsatsimpe dated 30
November 2023 and 11 April 2024 is suspended .
3
3.2. The first and second respondents are interdicted and restrained from proceeding
with execution steps in respect of the Notice of Attachment in Execution dated 29 July
2020, pending the finalization of the application in respect of Part B issued in terms of
the same case number-FS/BHM/RC/148/2023, in the Regional Magistrates' Court,
Bethlehem which is set down for hearing on 23 January 2025.
3.3.The First and Second Respondents are interdicted and restrained from removing ,
disposing and selling the Applicant's movable property in terms of the writ of
execution issued under case number FS/BHM/RC/148/2023 dated 22 August 2024,
pending the finalization of the application in respect of Part B issued in terms of the
same case number -FS/BHM/RC/148/2023, in the Regional Magistrates' Court,
Bethlehem which is set down for hearing on 23 January 2025.
4. The relief as set out in paragraphs 3.1 to 3.3 above is granted and shall operate
with immediate effect.
5. The first and Second Applicants are directed to serve on the first and second
respondents;
5.1. A copy of this court order;
5.2 The notice of motion in this application and the founding affidavit together with its
annexures; and
5.3 A notice informing the respondents that the return date for the confirmation of the
rule nisi may be anticipated on 48 hours written notice to the applicant, at the address
of the applicant's attorneys.
6. Costs of this application shall be paid by the first and second applicants, except if
the matter is opposed, in which case any respondent opposing the relief sought be
ordered to pay costs jointly and severally, one paying the other to be absolved.
7. Service of the interim order shall be effected in the following manner:
7 .1 By serving a copy of this order, Notice of Motion, affidavits and annexures on the
First and Second Respondents.
7 .2 the applicant is granted leave to send/ affect service of the court order to the First
and Second Respondent by way of email and that such email may be used for
purposes of service.
[3] It is necessary to sketch out the background of this matter. The applicants and
the first respondent are embroiled in litigation which commenced when the first
respondent issued summons against the first and second applicants for unlawful arrest,
detention and malicious prosecution on 6 September 2023 in the Regional Court,
4
Bethlehem (the regional Court). The applicants failed to file a notice of intention to
defend and consequently, on 30 November 2023, an order by default on merits was
obtained by the first respondent against both applicants. On 25 March 2024, the
applicants filed and served their notice of intention to defend. On 11 April 2024, the
regional court granted an order by default on quantum against the applicants.
Resultantly, the first respondent obtained a warrant of execution against the applicants'
property. This warrant appears to have been filed and issued on 29 July 2020 (as per
the assistant registrar's stamp). An affidavit has since been filed by the assistant
registrar explaining this issue. The issue of this date is a subject of dispute between the
parties on another application brought by the applicants against the first respondent; it
is not relevant to this application and I choose to say nothing more on it. On 12 August
2024, the writ was received by the second respondent for execution. On 20 August 2024
the second respondent visited the offices of the first applicant and attached some
movable property. The second respondent is not opposing the application and since it
is only the first respondent before court, I will refer to the first respondent, as the
respondent.
[4] On 12 December 2024 the applicants approached the regional court with a two­
part application. On Part A they sought an interim order on an urgent basis to stay or
suspend the warrant of execution issued by the assistant registrar on 29 July 2020
pending the determination of their application for the rescission of judgment. On Part B,
the applicants sought rescission of judgments granted by the regional court on merits
and quantum.
[5] That application was served on the respondent's attorney on 10 December 2024
and heard by the regional court on 12 December 2024. It is common cause between the
parties that the court struck the application from the roll and awarded a cost order
against the applicants .
[6] It is the applicants' contention that the matter was struck off by the magistrate as
the original papers were not before court. The applicants have explained in detail the
reasons for not filing the original papers. I do not wish to dwell much on this as it is not
germane to the issues before this court.
[8] On 13 December 2024 the applicants, once again approached this court on an
urgent and obtained a rule nisi as stated above. The applicants now seek confirmation
5
of the rule nisi. The respondent raised a point in limine. It is the respondent's contention
that the application in the regional court brought by the applicants against the first and
second respondent, which was struck off, did not cease to exist; the same relief was
sought as in this application, and since it was not withdrawn by the applicants, it remains
pending. Therefore, the applicants' application should be dismissed.
[9] In their replying affidavit, the applicants contended that the point in limine has no
basis and should be dismissed by the court. They averred that, by virtue of the interim
order granted against the respondents, the application in the regional court is now moot.
There is no other pending case based on the same cause of action before the regional
court. Furthermore, it was stated that this court is clothed with a wider discretion than
the magistrates ' court. As such, even if the respondent is successful in proving his
special defence, the court should still proceed with this matter in the interest of justice.
[1 O] In So/idariteit Helpende Hand NPC and Others v Minister of Cooperative
Governance and Traditional Affairs1 the Supreme Court of Appeal, as per Salduker JA,
expressed itself as follows at para 12:
'The general principle is that a matter is moot when a court's judgment will have no practical
effect on the parties. This usually occurs where there is no longer an existing or live controversy
between the parties. A court should refrain from making rulings on such matters, as the court's
decision will merely amount to an advisory opinion on the identified legal questions, which are
abstract, academic or hypothetical and have no direct effect.'
[11] In my view, a case becomes moot if it is entertained very late after the issues
underlying the dispute between the parties have been resolved. However, in the
circumstances of this case, this argument finds no basis and cannot be sustained. When
the applicants approached this court, their dispute with the respondent had not yet been
extinguished.
[12] I now proceed to deal with the legal principles applicable in the special plea raised
by the first respondent. It is trite that there are three elements for a successful reliance
on /is pendens. These are:
(i) There must be pending litigations between the same parties;
(ii) The cause of action must be the same; and
(iii) The same relief must be sought in both sets of proceedings.
1 Solidariteit Helpende Hand NPC and Others v Minister of Cooperative Governance and Traditional Affairs (2023]
ZASCA35.
6
[13] It is also prudent at this stage to deal with the status of the matter that was struck
off the roll in the regional court. The question that the court must respond to before it
considers the special plea is whether the case was pending in the regional court or not
at the time this application commenced.
[14] Tokota J in the case of Jojwana v Regional Magistrate and Another2 at para 10
referred to the cases of Zuma v Democratic Alliance and Others3 and Thint Holdings
(Southern Africa) (Ply) Ltd v National Director of Public Prosecutions; Zuma v NDPP4
and expressed himself as follows:
'In my view the above cases do not lay down a general rule that if a matter is struck off the roll
it is thereby terminated and may not be re-enrolled. The striking of the matter from the roll has
nothing to do with the merits of the case. In civil matters it often happens that if a party has either
failed to comply with the practice directives such as pagination, filing of heads of argument etc,
or that the applicant or the plaintiff failed to appear when the matter was called, the matter is
struck from the roll. In practice where the matter has been struck from the roll in those
circumstances it may be re-enrolled upon the delivery of an affidavit explaining the reasons for
the failure to comply with the practice directive and /or failure to appear when the matter was
called. In this context therefore, striking out of the matter from the roll is not aimed atterminating
the proceedings but merely suspends the hearing thereof pending an application for re­
instatement.'
[15] It is common between the parties that the matter was struck off in the regional
court. Even though I am not privy to the court's reasons for striking off the matter, the
applicants have explained in their affidavit why the matter was struck off and the
respondent has not refuted same. Accepting the reasons tendered by the applicants, it
is my considered view that the matter was not terminated by the court's order striking
it out. It was pending and could be re-enrolled once the court's reason for striking it out
has been cured by the applicants and explained to court. Moreover, rule 2( 1) of the
Rules Regulating the Conduct of the Proceedings of the Magistrates' Courts defines a
pending case as 'a case in which summons or notice of motion has been issued and
which has not been withdrawn, discontinued or dismissed and in which judgment has
not been entered or given.'
[16] The relief sought by the applicants in this court is the same as the relief sought
2 Jojwana v Regional Magistrate and Another [2018] ZAECMHC 54; 2019 (6) SA 524 (ECM).
3 Zuma v DA; ANDPP v DA [2017] ZASCA 146; [2017] 4 All SA 726 (SCA).
4 Thint Holdings (Southern Africa) (Pty) Ltd v National Director of Public Prosecutions; Zuma v NDPP [2008] ZACC
13; 2008 (2) SACR 421 (CC).
7
in the regional court. As a matter of fact, even the affidavits filed by the applicants in
both proceedings read almost the same. Therefore, it is my view that the defence of /is
pendens has been successfully proven by the respondent. I am therefore barred from
hearing this application.
[17] The general rule is that costs follow suit. The respondent argued that the
application is vexatious and should be met with a punitive cost order. However, I do not
agree. It is my view that an order of costs on a party and party scale will be appropriate
in the circumstances .
[18] Accordingly, I make the following order:
1. The special defence of /is pendens raised by the respondent is granted and the rule
nisi granted on 13 December 2024 is discharged .
2. The first and second respondents are ordered jointly and severally, the one paying
the other to be absolved, to pay the respondent's costs of the application on Scale C as
envisaged under rule 67 A of the Uniform Rules of the Court
L MPAMA,AJ
Appearances
For the applicants:
Instructed by:
For the first respondent:
Instructed by:
For the second respondent: Adv PG Chaka
The Office of the State Attorney
Bloemfontein
Adv K Mohono
Tsepo Mputhi Attorneys Inc.
Bethlehem
c/o Thebe Attorneys Inc.
Bloemfontein
no appearance 8