SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA, MPUMALANGA DIVISION ,
(MBOMBELA MAIN SEAT )
CASE NO. : 2692/2022
(1) REPORTABLE: YES
(2) OF INTEREST TO OTHER JUDGES: YES
(3) REVISED YES/NO
FOURIE AJ
DATE 12 MAY 2025
SIGNATURE
In the application between:
NAD PROPERTY INCOME FUND (PTY) LTD FIRST APPLICANT
ERF […] H[…] TECHNOPARK SECOND APPLICANT
INVESTMENTS (PTY) LTD
AND
NELSON WISEMAN TIVANE FIRST RESPONDENT
ELEGANT FUEL (PTY) LTD SECOND RESPONDENT
THE BUSHBUCKRIDGE LOCAL MUNICIPALITY THIRD RESPONDENT
THE MPUMALANGA PROVINCIAL GOVERNMENT FOURTH RESPONDENT
DEPARTMENT OF AGRICULTURE, RURAL
DEVELOPMENT, LAND AND ENVIRONMENTAL
AFFAIRS
THE MINISTER OF ENERGY FOR THE REPUBLIC FIFTH RESPONDENT
OF SOUTH AFRICA
THE CONTROLLER OF PETROLEUM PRODUCTS SIXTH RESPONDENT
IN THE NATIONAL DEPARTMENT OF ENERGY
JUDGMENT
FOURIE AJ
INTRODUCTION:
[1] The current application , as set down and as was heard on 8 May 2025 , is but
the latest in a long line of litigious processes , all involving the same parties.
The matter as set down constitutes a hearing in due course of a matter initially
set down to be heard on the urgent Court roll of this Court on 18 June 2024
before Msibi AJ , on which day the matter was struck from the roll due to a lack
of urgency.
[2] The main matter concerns several applications, interlocutory applications,
attempts at appeals, and litigious processes in this Court, the Supreme Court of
Appeal and the Constitutional Court.
[3] The catalyst application is one wherein the First and Second Applicants
secure d an interim interdict in this Court on 25 July 2022 , in which Mashile J
ordered as follows:
1. Part A of the Application is dealt with as one of urgency , and the Court
condones the non -compliance with the Rules of this Honourable Court in
terms of Rule 6(12) of the Uniform Rules of Court.
2. The Respondents are interdicted, pending the final resolution of Part B of
the Notice of Motion, for continuing with any further construction and
ancillary activities aimed at the establishment of a petrol filling station on a
property known as Stand No. 2[...], T[...] , Acornhoek, Buschbuckridge Local
Municipality (“Subject Property”).
3. The Respondents are interdicted, pending the final resolution of Part B of
the Notice of Motion , from conducting the business of a petrol filling station
and all ancillary or subsidiary activities on the Subject Property.
4. The costs of Part A of this application shall be paid by the Respondents,
jointly and severally, the one paying the other to be absolved.
[4] Insofar as clarification is necessary, Part A of the application mentioned by
Mashile J refer to the interim interdict sought and granted , and Part B relates to
a review application.
[5] The essence of the Order granted by Mashile J is that, pending the finalisation
of the review application, the First and Second Respondents are interdicted
from constructing and operating a petrol filling station.
[6] In the current application, the First and Second Respondents apply for the
upliftment of the interim interdict granted by Mashile J on 25 July 2022 pending
the finalisation of the review application .
[7] As the matter has been stated, restated, evaluated, and re -evaluated, as will be
seen hereinafter , on countless times and to avoid any confusion , the parties
shall be referred to as in the main and initial application that served before
Mashile J on 25 July 2022.
[8] For further clarification, the Applicants in the current application, being the party
that seeks the upliftment of the interim interdict , are the First and Second
Respondents (“The Respondents”) , and the parties opposing the current
application are the First and Second Applicant (“The Applicants”) in the initial
application , who are also the Applicants in the review application.
[9] At the hearing of the matter, Advocate Savvas indicated that he only held a
mandate to act in the matter on behalf of the Second Respondent , although in
essence the relief as sought would be in favour of the First Respondent also.
CHRONOLOGY OF EVENTS:
[10] To restate and evaluate all the previous litigious processes between the
respective parties would serve no practical purpose under normal
circumstances , but given the animosity between the respective parties and the
fact that the Applicants, in opposing the application , seek a punitive cost order
to be paid by the Respondents’ legal representatives de bonis propriis , an
aspect which I need to deal with at the end of this judgment, the restating of the
events that have unfolded leading up to the current application become
significant.
[11] For all other reasons and as far as it relates to the legal question this Court is
faced to pronounce upon, as will be seen later in the judgment, the previous
litigious processes are of no real influence.
[11.1] On 25 July 2022 , the Order of Mashile J was handed down as
already addressed.
[11.2] On 27 July 2022 , and two days after the Order of Mashile J, the
Second Respondent’s attorneys of record applied for leave to appeal
against the judgment of Mashile J.
[11.3] On 17 August 2022 , the application for leave to appeal against the
Order of Mashile J was dismissed by Mashile J with costs.
[11.4] After the dismissal of the application for leave to appeal by Mashile
J, the Second Respondent proceeded to apply directly to the
Supreme Court of Appeal for leave to appeal against the judgment of
Mashile J.
[11.5] On 11 August 2023 , the Second Respondent’s petition to the
Supreme Court of Appeal was dismissed with costs.
[11.6] On 28 August 2023 , the Second Respondent applied to appeal
against the Order of Mashile J to the Constitutional Court.
[11.7] On 4 June 2024 , the Second Respondent was notified that its
application to appeal to the Constitutional Court had been dismissed
with costs.
[11.8] In as far as it relates to Part B of the original application being the
review application, the Applicants made application to compel the
delivery of the required records which application was opposed by
the Second Respondent who filed a conditional application and
counterapplication for the separation and enrolment of a point of law
in terms of Rule 6(5)(d)(iii) of the Uniform Rules of Court .
[11.9] The issues pertaining to the compelling of the record and the issues
as raised by the Second Respondents were heard by Greyling -
Coetzer AJ on 24 October 2023 , and judgment was handed down on
24 January 2024 , in which she granted the application to compel and
dismissed the counter -application of the Second Respondents with
costs.
[11.10] On 7 March 2024 , this Court was requested to hear an application
for leave to appeal against the decision of Greyling -Coetzer AJ and
on 10 June 2024 , the application for leave to appeal was dismissed.
[11.11] Flowing from the aforesaid , the current application was born.
[11.12] It is important to point out that, after the application was issued by
the Respondents, the following documents have become available ,
which the Respondent s wish this Court to take into consideration :
[11.12.1] The Department of Mineral Resources and Energy has
filed the record of proceedings regarding the issuing of
licenses to the First Respondent.
[11.12.2] The municipality filed its record of proceedings in respect
of the zoning of the property in question .
[11.12.3] The Applicants have filed their Rule 53(4) Supplementary
Affidavit in the review application .
[11.12.4] The Second Respondent has filed its Rule 53(3)
Answering Affidavit in the review application .
[11.13] It is further accepted by the parties that the municipality has filed a
notice of intention to oppose and has until 21 May 2025 to file their
Answering Affidavit in the review application .
[11.14] At the hearing of the matter , it was conceded by both Advocate
Savva s, appearing on behalf of the Respondents , and Advo cate
Venter, appearing on behalf of the Applicants , that the only issues
outstanding for the main application to be finalised, as the papers
currently stood , were:
[11.14.1] The filing by the municipality of their Answering Affidavit ,
followed by a possible Replying Affidavit, which
Answering Affidavit is to be filed on 21 May 2025.
[11.14.2] The parties were to obtain a date for the review
application to be heard.
[11.14.3] Heads of Argument in respect of the review application
needed to be filed if the parties so wished, whilst being
guided by the practice directives of this Court.
[11.15] I find no reason why the Applicant could not have , by now , applied
for a date for the review application to be set down . Given the
exorbitant number of appeals and interlocutory applications , the
Court cannot , however , fault the Applicants for being overly cautious
in not obtaining a date for the rev iew application to be heard , to
avoid unnecessary costs being incurred in respect of the matter.
[11.16] During the argument, Advocate Savva s highlighted the fact that
many unknown eventualities in respect of the matter might arise ,
which the Court needed to take into account when making the
current order. Whilst I agree that there would always be the
possibility of unforeseen issues that might arise in any litigious
process, if the same is to be taken into regard currently , it would
amount to nothing more than mere speculation.
[11.17] During the hearing of the matter, I conveyed a sentiment to the
respective counsel appearing , that it was my view that, if the total of
the review process and application could be equated to a 100 meter
athletics event, then the athletes , in th e current matter being the
litigants , would have run 90 meters of the race already , and that it
was only the final 10m stretch of the race that remained in order for
the issues between the Applicants and Respondents, which
obviously cause significant grievances to the respective parties, to
be finally pronounced upon.
[12] It is against the backdrop of the aforesaid that the Court evaluated the
application of the Respondents
NATURE OF THE APPLICATION:
[13] The application at hand is one of a truly unique nature. I would not go as far as
to agree with Advocate Venter appearing on behalf of the Applicants that the
application is a beast of unknown description , but it is accepted by the
respective practitioners appearing that the proposition advanced by the
Respondent s which they wish this Court to order upon , is one that is yet to
present itself in any matter in which the Courts have pronounced on at least in
our country and at least as far as they could gather . As such, this Court cannot
be guided by any prevailing legal president in evaluating whether the relief the
Respondents seek ought to be granted or not.
[14] Much was said by the respective legal representatives in respect of the
previous appeals brought by the Respondents.
[15] The general view of counsel was , that it was, at least to a certain degree ,
accepted by the parties that the initial order by Mashile J was now indeed
regarded as an Interim Order, which is evident from the fact that the
Respondents try to revisit the Interim Order , and further that neither the
Supreme Court of Appeal nor the Constitutional Court found it to be in the
interest of justice to nonetheless , despite it being such, deal with the matter.
[16] I cannot attempt to ph rase it any better than Unterhalter AJA ( as he then was)
in the matter of TWK AGRICULTURAL HOLDINGS (PTY) LTD v HOOGVELD
BOERDERY BELEGGINGS (PTY) LTD 2023 (5) SA 163 (SCA) where, in
referencing the matter of ZWENI v MINISTER OF LAW AND ORDER [1992]
ZASCA 197; 1993 (1) SA 523 A, he stated on behalf of the Supreme Court of
Appeal and confirmed that the Zweni triad remains relevant and has not been
supplanted by the development of our jurisprudence . The interest of justice
standard, the Court held, must also be considered in the context of two other
principles, legal certainty and finality in litigation , which are themselves key
components of the rule of law. (“own emphasis”)
[17] I do not for one moment wish to state that the current matter ought to be
decided on the same principles as an appeal but in any matter where a
previous order is to be reviewed, appealed against, reconsidered, or as the
Respondents wished to phrase it during argument , revisited, the interest of
justice, legal certainty and finality in litigation remain considerations which I
believe would always be paramount to take into consideration.
[18] The Respondents submit that the test this Court is to apply is that of “good
cause shown” and that the only criterion is the dictates of justice.
[19] It is by now an accepted position that the Courts continually avoid defining, as a
principle set in stone, the concept of “good cause” as it remains a discretionary
evaluation of each and every Court determining on the facts of each and every
case presented before that Court.
[20] The Court is however guided by the principles as stated in the matter of
MADINDA v MINISTER OF SAFETY AND SECURITY 2008 (4) SA 312 (SCA) ,
where the Court stated at paragraph 10 thereof that:
“Good cause looks at all those factors which bear on the fairness of granting the
relief as between the parties and as affecting the proper administration of justice.
In any given factual complex, it may be that only some of many such possible
factors become relevant. These may include prospects of success in the
proposed action, the reasons for the delay, the sufficiency of the explanation
offered, the bona fides of the Applicant, and any contributions by other persons or
parties to the delay and the Applicant’s responsibility therefore.”
[21] Good cause in all instances remains a “balancing act” and depending on the
facts of each matter, more, or less, weight might be applied to any number of
aspects.
[22] The reliance on the aforesaid dictum emanates from the Respondents stating
and relying on the matter s of ZONDI v MEC TRADITIONAL LOCAL
GOVERNMENT 2006 (3) SA 1 (CC) at 13A – 14G, SOUTH CAPE
CORPORATION (PTY) LTD v ENGINEERING MANAGEMENT SERVICES
(PTY) LTD 1977 (3) SA 534 (A) at 55H, and BELL v BELL 1903 TS 887.
[23] The notion advanced by the Respondents is that, at Common Law , a purely
interlocutory application may be corrected, altered, or set aside by the Judge
who granted it at any time before final judgment and that such could be done
on good cause shown. I find it important that Advocate Savvas , appearing on
behalf of the Respondent , continuously requested that the Court not refer to the
application of the Respondents as a reconsideration of the application that
served in front of Mashile J. Advocate Savvas motioned that one ought rather
evaluate the matter as a revisitation of the initial application. I find the notion of
Advocate Savvas strange under circumstances where the Respondents
themselves, specifically in paragraph 41 of their Replying Affidavit , state that:
“The backdrop to this application is set in my paragraph 38 above and
is simply that only once the Constitutional Court decline d to hear an
application to appeal against the interdict granted by his Lordship
Mashile J (as he then was) on 25 July 2022 could this Honourable
Court be approached for a reconsideration of the basis of his
Lordship
Mashile J’s ruling in the application for leave to appeal that his order
was interlocutory.” (underlined own emphasis)
[24] Similarly, the case law on which the Respondents rely does not mention a
“revisitation” of an interim interdict but speaks at best for the Respondents at a
reconsideration, variation, or rescission.
[25] The Applicants motioned that they were not in a position to advance a
proposed test for this Court to apply in the current matter due to the
proceedings being irregular and unheard of.
[26] The Court needs to clarify that the Respondents do not seek a rescission or a
reconsideration of a simple interlocutory order , as the Court referenced in the
matter of ZONDI supra.
[27] The interlocutory order, being the interim interdict granted by Mashile J , is not a
stand -alone order removed from any other application or legal implication. The
interim interdict granted by Mashile J walks, proverbially speaking , hand -in-
hand with the pending review application. Once the review application is
finalised, the interim interdict is similarly dispensed with.
[28] The Respondents request this Court to revisit or reconsider whether an interim
interdict phrased in the terms as Mashile J did ought to remain in place pending
the finalisation of the review , and premised the ir submissions on why it ought
not to remain in place on the following key points:
[25.1] During the initial Part A application , the Respondents were not properly
represented , and due to the inadequacy of the representation of the
Respondents , their case was not properly advanced.
[25.2] The record in respect of the review is now complete , and this Court has
all the required information to evaluate whether an interim interdict
ought to be in place pending the finalisation of the review.
[25.3] The effect of the interim interdict is detrimental to the Respondents ,
and
[25.4] There has been an exorbitant lapse of time and a tardiness in
prosecuting the review by the Applicants.
[29] This Court needs to establish, on the test the Respondents propose whether
the Respondents have shown good cause and whether it would be in the
interest of justice if this Court revisits or reconsiders the Order of Mashile J to
order that the interim interdict of the Applicants be set aside for the remaining
period up until the finalisation of the review.
[30] Whilst I accept that the Courts have previously dealt with and pronounced upon
matters that concerned the reconsideration, variation, or rescission of simpl e
interlocutory orders, I could find no legal precedent, nor could any of the
representatives acting in the matter direct me to any other matters where a
Respondent, against which an interim interdict was granted , pending a review
being finalised , applied for such relief. Both Advocate Savvas and Advocate
Venter submitted that they scrutinised the Law R eports and legal resources
available , but that they could not find any similar incident where a Court was
faced with a similar proposition.
[31] I deem it important, in coming to a conclusion in the matter , to deal briefly with
each of the grounds on which the Respondents rely in seeking the order they
so do.
[32] The notion that the matter was inadequately dealt with initially on behalf of the
Respondents does not move the matter any further. At least the First
Respondents were represented at the hearing of the matter by one Advocate
Sibuyi and although the Respondents currently complained of the standard of
the work done by Advocate S ibuyi, he was at least at that stage , the preferred
legal representative of the First Respondent and they advanced, under oath , an
opposition to the application. If the version advanced was incomplete or false ,
the First Respondent ought not to have retained, for the hearing of the matter
initially , the services of Advocate S ibuyi, and the relevant af fidavits presented to
the Court ought not to have been signed under oath.
[33] Similarly, and although the matter remained unopposed by the Second
Respondent , an employee of the Second Respondent deposed to a Supporting
Affidavit in support of the case advanced by the First Respondent. The Second
Respondent in the current application indicates that the Deponent to the
Supporting Affidavit was not duly authorised and that although the
Respondents do not seek this Court to disregard the Supporting Affidavit by
one Mr. Frank Mkhonto, the Respondents seek that the Court apply a reduced
amount of weight to the content thereof.
[34] It is not the contention of the Second Respondents that they did not receive
notice of the application initially , and it is a stated fact that the Second
Respondent elected not to partake in the initial interdict application on their own
version , as per paragraph 9 of their Founding Affidavit in the current application
stated that:
“…. It is a matter of record that the Second Respondent, obviously in
good faith, left the opposition of the interdict to the First Respondent ,
who had appointed Advocate S ibuyi to represent it and did not directly
participate in the matter.”
[35] Rule 42 of the Uniform Rules of Court does not find any application in the
current matter nor do I infer in any way that it does but the view expressed by
the Constitutional Court in the matter of ZUMA v SECRETARY OF THE
JUDICIAL COMMISSION OF ENQUIRY INTO ALLEGATIONS OF STATE
CAPTURE, CORRUPTION, AND FRAUD IN THE PUBLIC SECTOR
INCLUDING ALL GOODS OF STATE AND OTHERS [2021] ZACC 28, makes
an eloquently worded phrase applicable as much in the current matter as it
does in respect of the Rule 42 application the Court was faced with therein
where the Court state that:
“60. ……… Whilst that matter correctly emphasises the importance of a
party’s presence, the extent to which it emphasises actual presence
must not be mischaracterised. As I see it, the issue of presence or
absence has little to do with actual, or physical, presence and
everything to do with ensuring that proper procedure is followed so that
a party can be present, and so that a party, in the event that they are
precluded from participating, physically or otherwise, may be entitled to
rescission in the event that an error is committed. I accept this. I do
not, however, accept that litigants can be allowed to butcher, of their
own will, judicial process which in all other respects has been carried
out with the utmost degree of regularity, only to then, ipso facto (by that
same act) , plead the “absent victim”. If everything turned on actual
presence, it would be entirely too easy for litigants to render void every
judgment and order ever to be granted, by merely electing absentia
(absence) .
[61] The cases I have detailed above are markedly distinct from that
which is before us. We are not dealing with a litigant who was
excluded from proceedings, or one who was not afforded a genuine
opportunity to participate on account of the proceedings being marred
by procedural irregularities. Mr Zuma was given notice of the contempt
of court proceedings launched by the Commission against him. He
knew of the relief the Commission sought. And he ought to have
known that that relief was well within the bounds of what this Court was
competent to grant if the crime of contempt of court was established. “
[36] In the current matter , the Respondents knew of the threat and implications the
proposed legal relief sought by the Applicants held w hen the initial application
was brought. The Respondents consciously elected to act in a certain manner
at that stage. They did so at the ir own peril.
[37] To re -evaluate or revisit the interim interdict on this ground is devoid of any
merit.
[38] In evaluating the effect of the interim interdict on the Respondents , I need to
restate that , when the Court initially heard the matter , Mashile J would have
weighed up and balanced all the arguments for and against the granting of the
interim interdict. One of these issues would have been the impact on the
Respondents. Irrespective of the statements made by the Respondents in the
current application, the impact on the Respondents has not been as great as
they wish to hold out , as it is an accepted fact that the Respondents have not
ceased their business operations for the total period the interim interdict has
been in place. It necessitated further contempt of Court proceedings to bring
the business operations of the Respondents to a halt only on 4 June 2024.
This accounts for nearly the whole period since the interim interdict was
granted up until the current application was launched.
[39] Similarly, the period that remains to bring the review application to finality
cannot be held out by the Respondents to be s o gre at for this argument of the
Respondents to persuade the Court in favour of the Respondent s.
[40] It is accepted that the interim interdict might have an effect on the
Respondents , which is accepted purely for the reason that that is indeed why
such an interim interdict was obtained.
[41] The Court initially faced with the interim interdict application was faced with the
notion that the review application would , at that stage in July 2022 , commence
and still found it reasonable to make an order that would halt the business
operations of the Respondents , knowing the time a review application would
take until finalisation.
[42] Given the fact that in most all aspects the review application is ri pe for hearing ,
this Court cannot accept the notion that, in weighing up all the respective
interests of the respective parties, and having regard to the extent to which the
review application has progressed, it is necessary or indeed possible for this
Court to accept the submissions made by the Respondent s in respect of this
contention.
[43] Insofar as it relates to the lapse of time and the proposed tardiness to
prosecute the review application , the notion by the Respondents is outright
rejected. The Applicants have been faced with countless appeals and
unnecessary interlocutory applications which, if not solely then greatly , result
from litigious actions taken by the Respondents during which the Respondents
have yet to be successful.
[44] Although the Respondents were well within their rights to advance the case
they wanted to the respective Courts, in sequence, the notion that it is the
actions of the Applicants who have delayed the finalisation in the review cannot
be accepted.
[45] I truly believe that if the legal representatives of the respective parties utilised
the time and resources that have been spent in the appeals and interlocutory
applications in respect of this matter in purely pursuing the finalisation of the
review, the review would , by now , have been, in all likelihood , finalised and
dispensed with.
[46] The propositions by the Respondents pertaining to the prosecution of the
review find no favour with the Court that assists the Respondents in the relief
they seek.
[47] The only remaining issue raised by the Respondents which I believe is
deserving of any significant consideration by me in the current matter is
whether this Court ought to have consideration of the review record that has
now been completely filed and, before the hearing of the review application to
evaluate the review record and to make a finding on the Applicant’s prospects
of success in the review application as, this is the only way in which the relief
the Respondents seek can be obtained.
[48] Whilst I accept that , should the review record be scrutinised by me, and I make
a finding on the prospects of success in the review by the Applicant, the Court
of review would not be bound by the decision I have taken, as is the normal
principle in related matters shall apply , this Court hold s significant reservations
in dealing with the matter as proposed by the Respondents.
[49] As stated previously, no legal precedent exists where parties have been
allowed to revisit an interim order pending the finalisation of the review
application , much less when the review application has moved so significantly
as in the current matter.
[50] If the Court finds favour with the Respondents’ application , a legal precedent
shall be set. This legal precedent would , although subject to a test or threshold
being met, allow similar litigants in a similar position to approach the Courts.
[51] I cannot accept the submissions by the Respondents that, being requested to
evaluate the full review record and ruling on significant aspects thereof , would
hold no single implication for the Court evaluating the review application of the
matter.
[52] When Mashile J was initially confronted with the application , he ruled in respect
of the application , on what the Applicant s wished to achieve , and he found that
the threshold for an interim interdict was met.
[53] It is important that the test for an interim interdict be restated.
[54] The test for an interim interdict as set out in the SETLOGELO v SETLOGELO
1914 AD 221 at 227 and WEBSTER v MITCHELL 1948 (1) SA 1186 (W) at
1187 and although these matters were decided in 1914 and 1948 respectively,
the fact that they have withstood the test of time indicates that the test is as
simple as set out therein , and in the interest of justice to be applied continually
as such.
[55] The requirements are:
1. A prima facie right, even if it is open to some doubt .
2. Injury actually committed or reasonably apprehended.
3. The balance of convenience.
4. The absence of similar protection by any other remedy.
[56] After the hearing of the current matter, only one of two positions shall prevail,
the first being that the application is dismissed and the interim interdict remains
intact, or alternatively, the interim interdict is set aside. Irrespective of the
aforesaid , the review application shall proceed.
[57] The essence of what the Respondent s are seeking cannot be anything else
than the Respondents, in requesting a re -evaluation or a revisitation of the
interim interdict , is no longer requesting the Court to apply the principles for an
interim interdict specifically pertaining to only a prima facie right although open
to some doubt being the applicable test and requests this Court to amplify the
test to be applied and in evaluating the Applicant’s case when, being faced with
all the facts filed on the review application and the benefit of all the information
on which the Respondents on this stage wish to rely, seeking the Court to
scrutinise such evidence and to in essence apply not whether a prima facie
right open to some doubt exists but whether a clear right exists.
[58] The Respondents seek nothing less than that the Applicants should be forced
to re-state their case and prove why their previously obtained order should
remain intact.
[59] The proposal by the Respondents in the current matter can at best be
described as a Respondent arguing a matter on the return date to argue
whether an interim interdict ought to be made final after the parties were
allowed the opportunity to advance further evidence to indicate why or why not
such an interim order might be made final. The proposition, having regard to
the fact that the court is still requested to pronounce on an interim interdict ,
does not find any traction with me.
[60] The Respondents lost sight of the fact that the interim interdict was ordered in
place initially , not as an independent order but as an order functioning to
achieve a specific purpose in the review application. The review application not
being finalised , and no exceptional circumstances existing in the current matter ,
the application was doomed to fail from the start.
[61] Even if a Court was to allow an application in the form as the Respondents are
currently making, the test to be applied in evaluating whether or not an interim
interdict ought to be granted can never evolve into the same test as for a final
order, irrespective of the nature of proceedings or the benefit of additional
information.
[62] The application by the Respondents, if the Court grants same , will no doubt not
only lead to legal -uncertainty and confusion, it would open the floodgates for
litigants to bring similar applications once the review record has been filed to
avoid waiting for the review to be heard to dispense with the issues at hand and
to use the documents obtained in the review process to bolster a case with
which the Court was not initially faced with.
[63] It might be that the day comes when certain information becomes available that
requires the intervention by a Court , screaming for justice to be done if the
position as per the interim interdict is not revisited pending the review to be
finalised.
[64] The current matter is definitely not a matter, given the facts of the current
matter , in which this Court is of the intention to set a legal precedent for similar
matters.
[65] Another Court faced with different facts might very well entertain those facts
and determine an applicable test which would justify the Court coming to the
aid of such an applicant. The current matter is not deserving of such.
[66] Having been seized with the matter the Court was necessitated to work through
the complete record to ensure that, even if I am not correct in my views in
respect of the aforesaid, whether a Court faced with the current facts,
irrespective of whether an interim order is in place or not, will have granted
such an interim order.
[67] On the facts as they represent themselves, I cannot find any reason why a
Court faced with those facts would make any other order tha n the Order as
made by Mashile J and that the Applicant would have met the threshold for the
obtaining of an interim interdict if the Court was presented with the same
documents I am currently faced with. The prima facie threshold the Applicants
needed to meet would, in any event , have been met with the information at
hand. Although the position might be open to some doubt being placed on it by
the review record, it does not cause the prima faci e position to be dispensed
with in totality.
[68] I say so ex abundanti cautela and not as a result of finding that the application
the Respondents propose d is one that I am willing to give any form of
recognition or legal standing to for the reasons I have already stated. In sofar
as it is necessary , the further documents and the information therein as
advanced by the Respondents find no favour with the Court in respect of the
current application and do not move the Court to a favourable consideration of
the Respondents’ application.
COSTS:
[69] No reason exists why the normal principle of cost following the successful
litigant of a suit ought not be applied. The Applicants’ legal representatives
utilised a significant portion of their opposition to the current application as well
as their address to the Court to request that the Court indicate its displeasure
with the litigious tactics of the Respondents by making a punitive costs order
against the Respondents. The Applicant further requested that the cost order
should be payable by the legal representatives of the Respondents themselves.
[70] The Constitutional Court in the matter of FERREIRA v LEVIN NO AND OTHER
1996 (2) SA 621 (CC), held that the award of costs unless otherwise indicated
is in the discretion of the Court.
[71] The Constitutional Court further , in the matter of SA LIQUOR TRA DERS
ASSOCIATION AND OTHERS v CHAIRPERSON GAUTENG LIQUOR
BOARD AND OTHERS 2009 (1) SA 565 (CC) stated:
“An order of costs de bonis propriis is made against attorneys where a
Court is satisfied that there has been negligence in a serious degree
which warrants an order of costs being made as a mark of the Court’s
displeasure. An attorney is an officer of the Court and owes the Court
an appropriate level of professionalism and courtesy .
[72] Costs are ordinarily ordered on a party and party scale. Only in exceptional
circumstances and pursuant to a discretion judicially 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. The obvious policy considerations underlying the Court’s reluctance to
order costs against the legal representative personally are that attorneys and
counsel are expected to pursue their client’s rights and interests fearlessly and
vigorously without regard for their personal convenience . In that context, they
ought not to be intimidated either by their opponent or even, I may add, by the
Court. Legal practitioners must present their case fearlessly and vigorously but
always in the context of a set of ethical rules that pertain to them, and that are
aimed at preventing practitioners from becoming a party to the deception of the
Court. It is in this context that society and the Courts, and professions demand
absolute personal integrity and scrupulous honesty of each practitioner – see in
this regard MULTI -LINKS TELECOMMUNICATIONS LIMITED v AFRICA
PREPAID SERVICES NIGERIA LIMITED 2013 (4) ALL SA 346 GMP at
paragraph 34.
[73] It seems to me that a practice has evolved whereby legal opponents , when
seeking costs at the end of a matter believe that costs on a de bonis propriss
scale should somehow be, after the scales of party and party, followed by
attorney and client follow as a higher scale to indicate success in a litigious
matter or to even indicate the Court’s displeasure with the fact that a litigant has
approached Court.
[74] This Court is of the view that a punitive cost order , being an order against the
litigant on an attorney and client scale , remains the highest punitive scale of
costs that can be awarded against a litigant , which ought already be regarded
as to be reserved only for the most extreme of circumstances.
[75] The evaluation of whether costs on a de bonis propriis scale becomes
applicable in any matter speaks not of the merits of a matter, it speaks of the
conduct of a person acting in a specific capacity.
[76] Attorneys and counsel are representatives of clients. Unless the Court makes
an express ruling that they were acting on the proverbial frolic of their own, the
Court is bound to accept that they presented the matter on the express
instructions of their clients. In the current matter, the Court is tasked to
evaluate whether the legal representatives of the Respondents conducted
themselves in a manner that can be seen as negligent, unprofessional, or
unethical.
[77] Even though the Court is in full agreement with the Applicant that the
application was ill -conceived and was doomed to fail from the start, the Court
cannot make a finding that the legal representatives for the Respondents acted
unethically, discourteously to their opponents, unprofessionally or negligently.
If anything, it is evident that the legal representatives for the Respondents are
vigorously pursuing the case that their client has requested them to pursue.
[78] I am accordingly not persuaded that the legal representatives for the
Respondents ought to be burdened by a costs order to be payable by them in
their personal capacities , and no sufficient case in this regard has in any event
been made out. It would seem that, in addressing the issue of costs , the
Respondents merely wanted to convey the seriousness of yet another cost
order being granted against the Respondents. This proposition I can accept if
one has regard to the history of the litigious processes. The current application
is one that, given the facts of the matter , ought never have been brought and
ought never have been persisted with. As a result thereof , I can find no reason
why exceptional circumstances do not exist to deviate from the normal
principles pertaining to costs.
[79] This Court cannot allow a situation where a litigant , such as in the position of
the Applicants currently , ought to be left out of pocket resultant of the actions of
the Respondent s in making the application as they did. It is accordingly
justified that an order on an attorney and client scale be granted.
CASE MANAGEMENT:
[80] At the hearing of the matter , I indicated to the parties that I am of the intention
of case managing the matter as far as I am able to do so. As such, and
embedded in the Order I make hereinunder , the parties are directed to move
the review application as quickly as possible under the circumstances.
ORDER:
[81] For all the reasons before , I make the following Order:
1. The application is dismissed.
2. The First and Second Respondents, jointly and severally , shall pay the
costs of the First and Second Applicants on an attorney and client scale.
3. The parties are directed to, in compliance with case management of the
review application , approach the office of the Registrar within 10 (ten) days
of this order to obtain a date for the review application to be heard. The
parties shall jointly address a letter to the office of the Judge President
within 20 (twenty) days of obtaining a provisional date for the hearing of
the review application to seek an expedited date for the review application
to be heard in an attempt to finalise the review application as quickly as
possible. The parties shall agree on the filing and timeframes of any
outstanding issues in respect of the review application by completing and
filing a Form B by no later than 10 June 2025.
H F FOURIE AJ
ACTING JUDGE OF HIGH COURT , MBOMBELA
Counsel for the Applicant s: ADV VENTER
Instructed by: IVAN PAUW & PARTNERS ATTORNEYS
Counsel for the Respondents : ADV SAVVAS
Instructed by: MKA ATTORNEYS
Judgment reserved on: 08 MAY 2025
Date of delivery: 12 MAY 2025