REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
(LIMPOPO DIVISION , POLOKWANE)
REPORTABLE : YES/NO (1)
(2)
(3) OF INTEREST TO THE JUDGES: YES/NO
REVISED: YES/NO
VANWYK ASL (AJ) --SIGNATURE
In the matter between: 2 JUNE 2025
DATE
MEROPA LEISURE AND ENTERTAINMENT (PTY) LTD
T/A SUN MEROPA (REGISTRATION NUMBER
1997 /007830/07)
and
REJASIMANO TRADING (PTY) LTD t/a
MARIMBA RESTAURANT (REGISTRATION NUMBER
2024/666496 /07)
MOSIMA MARY LANGA
INRE
REJASIMANO TRADING (PTY) LTD t/a CASE N2: 08060/2025
APPLICANT
FIRST RESPONDENT
SECOND RESPONDENT
2
MARIMBA RESTAURANT (REGISTRATION NUMBER
2024/666496/07)
MOSIMA MARY LANGA
And
MEROPA LEISURE AND ENTERTAINMENT (PTY) LTD
TIA SUN MEROPA (REGISTRATION NUMBER
1997 /007830/07)
JUDGMENT
VANWYK ASL (AJ): FIRST APPLICANT
SECOND APPLICANT
RESPONDENT
1. This is a reconsideration application in accordance with Uniform Rule
6(12)(c) following an ex parte order granted by Bresler AJ in favour of
the Respondents herein on 30 May 2025.
2. The Applicant in the reconsideration application inter alia argued that the
order granted as such by Bresler AJ was erroneously sought and
approached this Court on Saturday 31 May 2025 to have the interim ex
3
parte order, rescinded and set aside. Following my directive the matter
stood down until Sunday 1 June 2025 at 10:00 AM for argument.
3. I am of the view that the very nature of an application in accordance with
Uniform Rule 6(12)(c) is urgent, more specifically within the context of
the facts of the matter in casu. The Applicant became aware of the ex
parte order seemingly on the eve of 31 May 2025 and without delay
approached this Court on Saturday 31 May 2025. Uniform rule 6(12)(c)
demands the presence of two jurisdictional requirements, i.e. (i) First the
order must have been granted on an urgent basis and (ii) secondly, the
order must have been granted in the absence of a litigant. I am satisfied
that both requirements were met for the reconsideration of the order. In
consequence I find that this matter is sufficiently urgent to be heard
outside the normal time frames of this Court's practice directives and
other authorities relating to the urgency of this nature.
4. Without dealing extensively with the facts and merits of the matter at
hand because for obvious reasons it is not necessary, it is important to
mention that on 22 May 2025 an altercation ensued at the premises of
the Applicant. I will deal with the issue and consequences of full and
4
frank disclosure , more specifically within the context of ex-parte
applications , in more detail herein below. On 23 May 2025, the
Applicant , through its appointed representative(s) , terminated the verbal
lease agreement alternatively the verbal service level agreement with
the First Respondent with immediate effect. The lawfulness and validity
of such immediate termination of the verbal agreement is not before me
for consideration . It is common cause that the Second Respondent and
her husband, Mr Langa's access to the Applicants premises was
terminated on 23 May 2025 with the so-called letter 'banning' them from
its premises.
5. Although the First and Second Respondent provided an explanation as
regards the procedures , avenues, and processes they followed from 23
May 2025 until 30 May 2025, they were fully aware that the Applicant
was legally represented and written communication during the aforesaid
period ensued between the respective legal representatives of the
parties. Notwithstanding this knowledge the First and Second
Respondent elected to approach this Court on an urgent ex-parte basis.
6. It follows that exceptional circumstances must be present to approach
Court on an urgent ex-parte basis and that the duty of full disclosure as
5
encapsulated in the concept of uberrima fides, or utmost good faith must
be upheld by the Respondents.
7. The reasons advanced by the Respondents for approaching the Court
on an ex parte basis as they did, includes inter a/ia reference to a
function (wedding) which at that stage was two days away and if notice
were to be given to the Applicants the time periods which had to be
imposed would render the application incapable of being adjudicated
before Saturday 31 May 2025, leaving too little time to finalize and
ensure that the wedding can proceed on Sunday, referring to 1 June
2025-my emphasis. The Respondents made further reference to other
functions commencing 5 June 2025 to 26 June 2025. I am not
persuaded that the reasons advanced by the Respondents constitute
exceptional circumstances to invoke a procedure with the exclusion of
the Applicant whereby they were entitled to receive notice or to be heard
by the Court on 30 May 2025. This preservation of audi a/teram partem
principle remains trite.
8. Turning to the principle of the Respondents duty in disclosing all facts
and circumstances and upholding the principle of uberrima fides, or
utmost good faith, the following is of importance:
6
8.1 The Second Respondents version of the 22 May 2025 event
includes, inter alia that she had an altercation with Mr Freeman.
This related to a dispute where the Second Respondent had
parked her vehicle and the removal thereof. Thereafter she
phoned her husband for emotional support. The Second
Respondents husband, Mr Langa, upon hearing how distraught
the Second Respondent was, came to the Applicants premises.
Mr Langa entered the Applicants premises at a high speed and
whilst emotional and furious regarding how Mr Freeman treated
the Second Respondent went to search for Mr Freeman and
confront him. Mr Langa was unable to locate Mr Freeman and
before he left, he informed staff members of the Applicant to tell
Mr Freeman he must stop threatening the Second Respondent.
Mr Langa, still angry, used bitter words in order to deliver a
strong message to Mr Freeman. The Second Respondent denied
that Mr Langa threatened or intimidated Mr Freeman's person or
his life. The Second Respondent stated that she was not present
when Mr Langa entered the Applicants ' premises and searched
for Mr Freeman. Further, the Second Respondent stated that at
no time was any person or patron's life threatened or were they
threatened with a firearm. The Second Respondent vaguely
7
mentioned that the Applicants main complaint is the alleged
conduct of her husband and two other persons, which is denied.
She stated that she was not involved in the conduct complained
of by the Applicant.
8.2 The Applicant deponent stated that Mr Freeman requested the
Second Respondent to remove her vehicle from the loading
zone, because of a board meeting taking place on 22 May 2025
at the Applicants' premises. The Second Respondent refused to
do so and became hysterical and verbally abused, Mr Freeman.
The Second Respondent made a telephone call to which the
Applicants deponent presumed to be to her husband. Thereafter
Mr Langa entered the Applicants' premises at high speed
together with two accomplices driving their own vehicles. The two
accomplices were large men brandishing firearms. It is stated on
behalf of the Applicant that the two accomplices were summoned
to the Applicants premises to intimidate , threaten and cause
harm to the Applicants employees and specifically Mr Freeman.
8.3 Upon their attempts to enter the Applicants premises, a security
officer employed by the Applicant, Mr Masuanyisa requested the
8
men to leave their firearms at reception in safe custody. Mr
Masuanyisa was assaulted by one of Mr Langa's accomplices .
Mr Langa shouted for Mr Freeman and verbally made threats to
kill him in the presence of staff members and guests. The
Applicant presented three witness statements by its security
personnel, Mr Dineo Motladi, Mr Dineo Mabotja, and Mr
Nyambeni Masuantise all confirming at least verbal threats
directed by the Second Respondents husband, Mr Langa to Mr
Freeman. The Applicants version is that following the incident as
aforesaid it terminated the verbal lease and/or service agreement
with the First Respondent, and it proceeded to "ban" or exclude
the Second Respondents and her husband's access from its
premises for the safety and well-being of its employees and
customers .
8.4 I perused the video footage material of the 22 May 2025 incident
and could establish that Mr and Mrs Langa, the Second
Respondent , did meet at some stage when he entered the
Applicants building premises and further that a physical
altercation did take place during the periods 08:03 to 08:04 at the
Applicants premises. The Respondents did not disclose the
9
aforesaid information. The Respondent furthermore failed to
disclose in specific detail that the two other men accompanied Mr
Langa in their own vehicles or exactly what their purpose,
intention and role was for attending or accompanying Mr Langa
to the Applicants premises or that life terminating threats were
made by Mr Langa to Mr Freeman. The Second Respondent
vaguely stated that Mr Langa was emotional and furious and
used bitter words in order to deliver a strong message to Mr
Freeman.
8.5 I am of the view that the Second Respondent cannot distance
herself from the turmoil and discord that unfolded on the 22nd of
May 2025 at the Applicants premises. If it was not for the
telephone call by the Second Respondent to her husband,
whether she summoned him and his accomplices to the
Applicants premises or whether they attended the Applicants
premises of their own accord, the preposterous and illegal
conduct as explained herein supra and in the affidavits before me
could have been avoided in toto.
10
9. I am of the view that the Respondents failed in their duty of full
disclosure encapsulated by the concept of uberrima tides, or utmost good
faith in applications of this nature.
10. In LW v KCA [2023] 4 All SA (GJ) (13 October 2023), the court reiterated
that a party seeking relief ex parte has a duty of utmost good faith to
disclose all material facts impacting the court's decision, including
potential defences that might favour the refusal of the relief sought.
Failure to comply with this duty can result in the court setting aside the
interim protection order on the return date, even if the non-disclosure was
not willful or in bad faith.
11. In Schlesinger v Schlesinger 1979 (4) SA 342 (W), the court outlined
the essential elements of this duty. This principle was further elaborated
in Recycling and Economic Development Initiative of South Africa v
Minister of Environmental Affairs; Kusaga Taka Consulting (Pty) Ltd
v Minister of Environmental Affairs 2019 (3) SA 251 (SCA). The
Supreme Court of Appeal emphasized that the utmost good faith must be
observed in ex-parte proceedings, and all material facts must be
11
disclosed1. The withholding or suppression of material facts entitles a
court to set aside an order, even if the non-disclosure was not willfu/ or
ma/a tide. The SCA further emphasized that ex parte applicants assume
a "heavy responsibility " to neutralize the prejudice the affected party may
suffer by their absence. This includes disclosing all relevant adverse
material that the absent respondent might have put up in opposition to
the order.
12. In Schlesinger v Schlesinger , the court outlined the foundational
principles regarding non-disclosure in ex parte applications. The court
held that:
12.1 All material facts must be disclosed that might influence a court in
coming to a decision.
12.2 The non-disclosure or suppression of facts need not be willful or
mala fide to incur the penalty of rescission.
Thint (Pty} Ltd v National Director of Public Prosecutions and others; Zuma and another v
National Director of Public Prosecutions and others 2008 (12) BCLR 1197 (CC).
12
12.3 The court, when apprised of the true facts, has the discretion to
set aside the order obtained on incomplete information or to
preserve it.
13. The judgment in Schlesinger established that the duty of full disclosure
is not merely a procedural formality but a substantive requirement that
underpins the fairness and integrity of the judicial process.
14. The rationale behind this strict duty is that ex-parte proceedings are a
significant departure from the audi alteram partem rule, a fundamental
principle of justice that requires all parties to have the opportunity to be
heard. In the absence of the respondent , the applicant must effectively
speak for the absent party, presenting all relevant information , including
potential defences. In Powell NO and others v Van der Merwe and
others [2005] 1 All SA 149 (SCA) at pars 66 -76 the following was legal
principles were stated:
"[66} ... In my view the applications for the search warrants
(paragraphs 3044 of Cameron JA 's judgment) were fatally
flawed by the misstatement of the material facts and this, in
13
itself, justified the setting aside of the warrants and the
return of the documents and other things seized.
[67] A search and seizure warrant obtained ex parte places a
formidable weapon in the hands of the Director of IDSEO. It
authorises the Director and his staff to enter and search the
premises of the person involved without prior notice and to
seize and retain documents and other things relevant to the
suspected offence. Such an operation is a profound
violation of the right of privacy.
[68] In Investigating Directorate: Serious Economic
Offences and others v Hyundai Motor Distributors (Pty)
Ltd and others: In re Hyundai Motor Distributors (Pty)
Ltd and others v Smit NO and others 2001 (1) SA 545
(CC) [also reported at 2000 (10) BCLR 1079 (CC) Ed] the
Constitutional Court considered how the right to privacy is
protected by the provisions of the National Prosecuting
Authority Act 32 of 1998 ("the NPA Act'J where the director
seeks a search and seizure warrant for the purpose of a
[69] 14
preparatory investigation. The court identified a number of
essential safeguards.
[70] Second, the investigating directorate is required to place
before a judicial officer an adequate and objective basis to
justify the infringement of the right to privacy. The legislation
sets up an objective standard that must be met prior to the
violation of the right, thus ensuring that search and seizure
powers will only be exercised where there are sufficient
reasons for doing so (paragraph 55).
[71] Third, there must be authorisation by a judicial officer before
a search and seizure of property takes place: an
investigating director may not search and seize property, in
the context of a preparatory investigation , without prior
judicial authorisation (paragraph 35). It must appear to the
judicial officer, from information on oath or affirmation , that
there are reasonable grounds for believing that anything
connected with the preparatory investigation is, or is
15
suspected to be, on such premises. The judicial officer is
required, among other things, to be satisfied that there are
grounds for a preparatory investigation and in order to be
satisfied the judicial officer must evaluate the suspicion that
gave rise to the preparatory investigation as well as the
need for a search for purposes of a preparatory
investigation (paragraph 36). It is implicit in section 29(5)
that the judicial officer will apply his or her mind to the
question whether the suspicion which led to the preparatory
investigation , and the need for the search and seizure to be
sanctioned , are sufficient to justify the invasion of privacy
that is to take place. On the basis of the information , the
judicial officer makes an independent evaluation and
determines whether or not there are reasonable grounds to
suspect that an object that might have a bearing on a
preparatory investigation is on the targeted premises
(paragraph 37). It is also implicit in the legislation that the
judicial officer should have regard to the provisions of the
Constitution in making the decision (paragraph 38).
16
[72] Despite these safeguards the application for the warrant
can be made ex parte on the strength of what the
investigating director chooses to place before the judicial
officer. In such a case, before the warrant is executed, the
person who is targeted by the warrant does not have an
opportunity to contest the facts relied upon by the
investigating director or to place his or her version before
the court. By then, the sentimental damage and damage to
his or her good name and reputation and probably
professional and business interests will have occurred.
These factors emphasise the necessity for a proper
"adequate and objective basis" to be placed before the
judicial officer who is requested to authorise the warrant. All
the safeguards referred to in Hyundai (supra) will be
negated if the material facts are misstated to the judicial
officer or material facts are withheld. If this occurs the
judicial officer cannot properly consider whether the warrant
should be authorised or not. These factors also illustrate the
necessity for the rules relating to proper disclosure of
material facts in ex parte applications to be strictly and
rigorously applied.
17
[73] In National Director of Public Prosecutions v Basson
2002 (1) SA 419 (SCA) [21] [also reported at [2002] 2 All
SA 255 (A) Ed] this court expressly approved of these rules
as they are set out in Schlesinger v Schlesinger 1979 (4)
SA 342 (W) at 348E349B , concluding with the following
three propositions :
"(1) in ex parte applications all material facts must be
disclosed which might influence a court in coming
to a decision;
(2) the nondisclosure or suppression of facts need not
be wilful or ma/a tide to incur the penalty of
rescission ;
(3) the Court, apprised of the true facts, has a
discretion to set aside the former order or to
preserve it. "
18
[74] In Schlesinger (supra) Le Roux J also considered when a
court will exercise its discretion in favour of a party who has
been remiss in its duty to disclose rather than to set aside
the order obtained by it on incomplete facts. He concluded
(at 350BC)
"It appears to me that unless there are ve,y cogent practical
reasons why an order should not be rescinded , the Court
will always frown on an order obtained ex parte on
incomplete information and will set it aside even if relief
could be obtained in a subsequent application by the same
applicant. "
[75] In my view, this approach should apply equally to relief
obtained on facts which are incorrect because they have
been misstated or inaccurately set out in the application for
the order (compare, Hall and another v Heyns and others
1991 (1) SA 381 (C) at 397BC) or, as in this case because
they have not been sufficiently investigated. And it should
be rigorously applied where a right in the Bill of Rights has
19
been violated. That is the only way that the courts can
ensure that the right to privacy is vindicated after the event.
[76] The purpose of rigorously applying the rule and setting
aside the decision to authorise the warrant is not to punish
the director as was stated by the court below. It is to
maintain the legality of the process. Infringement of the right
to privacy by a search and seizure warrant is justifiable only
if the correct facts have been placed before the judicial
officer in an objective manner so that he can properly apply
his mind. The process will be fatally flawed if incorrect facts
are placed before him."
15. As stated, the duty of full disclosure is not merely a procedural formality
but a substantive obligation that ensures fairness and justice.
16. In the article "The Duty of Utmost Good Faith in Asset Forfeiture
Jurisprudence -Some Lessons to Learn," written by Mr. Nkululeko
Christopher Ndzengu, Regional Head of the Asset Forfeiture Unit,
Eastern Cape, and Mr. John C. Von Bonde, Senior Lecturer of Criminal
and Procedural Law at Nelson Mandela Metropolitan University , Port
20
Elizabeth, the authors discuss the principle of utmost good faith in ex
parte applications . They underscore that the duty of full disclosure is
essential to prevent the abuse of ex parte procedures and ensure that
justice is served fairly (Ndzengu & Von Bonde, 2023).
17. I am of the view that the reconsideration application is about the
procedure and not any other issue and therefore I need not deal with
those aspects. The reconsideration if upheld, does not bring an end to
the matter.
18. I am of the view that the existing interim order has created an injustice to
the Applicant because it was obtained in its absence on an urgent basis
notwithstanding the facts presented from 23 May 2025 to 30 May 2025. I
am of the view that the application ought to have been served on the
Applicant (Respondent in the proceedings of 30 May 2025) and I
emphasize that the facts presented by the Respondent do not qualify as
exceptional circumstances in approaching this Court on an ex-parte
basis.
19. It follows that the reconsideration application must succeed.
21
ORDER
Having considered the papers and the submissions made before me,
the following order is made:
(a)The requirements of form and service as provided for in the rules,
insofar as necessary , are dispensed with and the application for
reconsideration of the ex parte order is heard as one of urgency in
terms of the Uniform Rules of Court.
(b) The order granted ex parte (Part A) against the Applicant
(Respondent on 30 May 2025) on 30 May 2025 in its absence by
Bresler AJ is hereby reconsidered and set aside.
(c)The First and Second Respondents (First and Second Applicants on
30 May 2025) are ordered to pay the costs of the application for
reconsideration.
ASLVANWYK
Acting Judge of the High Court
HEARD ON
JUDGMENT DELIVERED ON
FOR THE APPLICANT
(IN RECONSIDERATION)
INSTRUCTED BY
FOR THE RESPONDENTS
IN RECONSIDERATION
INSTRUCTED BY 22
Limpopo Division, Polokwane
APPEARANCES:
1 JUNE 2025
2 JUNE 2025 This judgment
was handed down electronically by
circulation to the parties' representatives
by email. The date and time for hand­
down of the judgment is deemed to be at
14:00
Mr JOHAN MOOLMAN
KNOWLES HUSSAIN LINDSAY INC
C/O PRATT LUYT & DE LANGE
POLOKWANE
ADV SS GREEN
DDKK ATTORNEYS
POLOKWANE
23