(1) REPORTABL E: NO REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION , PRETORIA
(2) OF INTEREST TO OTHER JUDGES: YES
(3) REVISED: YES
"-. ~ \._)(...---"
21 May2025
In the matter between:
EUGENE THIPE MODISE
TRIOTIC PROTECTION SERVICES (PTY) LTD
and
FREDERICK JOHANNES STRAUSS
LYNETTE STRAUSS 1
Case No: 56239/2020
1sT APPLICAN T
2ND APPLICAN T
1sT RESPONDEN T
2ND RESPONDENT
2



REASONS FOR ORDER


MYBURGH, AJ

INTRODUCTION:

[1] On 6 May 2025 I granted the following relief in this matter:

1. The Applicants ’ rescission application under case number 56239/2020,
served on 25 August 2022, is dismissed.

2. The Applicants are ordered to pay the cost on an attorney and client scale ,
jointly and severally , the one to pay the other to be absolved.

[2] Considering the punitive nature of the cost order and giving effect to the
pronouncements in the matter of Prithilal v Akani Egoli (Pty) Ltd and Another
(CCT 290/24) [2025] ZACC 5 (24 April 2025) , this judgment will set out the reasons
for the punitive order and the basis upon which I exercised my discretion .
[3] I, in addition , instruct , as a matter of urgency, that a copy of th ese reasons be
provided to the Judge President of this Division, the Legal Practi ce Council as well
as the Pretoria Society of Advocates, for them to urgently consider whether further
steps should be taken regarding the conduct of the Applicants’ legal
representatives. My reason s for doing so will be discussed infra.
3

LITIGATION HISTORY :

[4] Following a protracted history of disputes, and during 2020, the Respondents
issued summons against the Applicants, claiming, amongst others, cancellation of
a lease agreement, which related to an immovable property allegedly leased by
the Applicants from the Respondents, and payment of an amount of R758 067.80
in arrear rent payable. The Applicants filed a plea, which constituted a bear denial
save for an attack on the jurisdiction of the Court, and secondly an alle gation that
the Applicants laboured unde r the misapprehension that the lease agreement was
actually a purchase agreement.
[5] The above action was set down for 6 June 2022, which was preceded by a special
pre-trial conference that was attende d by all parties on 30 May 2022. A joint
practice note, evidencing the content of the special pre -trial, was properly signed.
The disputes of fact, evidenced in the practice note, does not echo the disputes
raised in the pleadings, as the attack on the Court’s jurisdiction was omitted. The
practice note however confirms that the nature of the agreement, being either a
lease agreement or a sale agreement, was still a contentious issue, together with
the Respondents’ entitlement to cancel, the Applicants’ br each and the Applicants’
indebtedness.
[6] On 6 June 2022, being the date of trial, the Applicants’ then attorney, Samalenge
Attorneys, filed a notice of withdrawal, citing a lack of instructions, communication
and funds. On such day, and following the instructions of Ledwaba DJP, attempts
were made to locate the Applicants’ then attorney as Ledwaba DJP required an
explanation for the sudden and late withdrawal . The attorney was however in the
Eastern Cape and did not attend Court on such day. Ledwaba DJP proceeded to
grant default judgment a gainst the Applicants.
4

[7] On 30 June 2022 the Applicants served upon the Respondents a document
purporting to be an application to have the judgment of 6 June 2022 rescinded1.
The Applicants were, in this application, ostensibly represented by a firm of
attorneys referred to as Malatji Attorneys2. This application was however launched
under case number 567239/2020, being the incorrect case number. The
Respondents proceeded to file a notice of opposition and to file an answering
affidavit.
[8] On or about 30 June 2022 the Applicants served a further purported rescission
application (the second appli cation) , seeking the rescission of the order dated 6
June 20223, again ostensibly represented by a firm of attorneys referred to as
Malatji Attorneys . This application was brought under the correct case number.
Similar to the previous application, the Respondents proceeded to oppose this
application and file an answering affidavit.
[9] On 23 September 2022 the Applicants served an urgent application on the
Respondents, in which application the Applicants sought, on an urgent basis, an
interdict against the Respondents preventing them from executing the order dated
6 June 2022, pending the finalization of the rescission application. Again,
Respondents opposed such application and filed an answering affidavit. This
application the Applicants did not persist with .
[10] The Applicants did not file a replying affidavit in the second purported rescission
application, following which the Respondents enrolled such for determination on
22 May 2024. On such day the matter was removed from the roll, with no order as
to costs. It appears that the Presiding Judge, Collis J, required service of the
enrolment on the Applicants.
[11] With proper service the Respondents again enrolled the purported application for
rescission for hearing on 4 November 2024. On such date, and before Mazibuko

1 The reasons why this was not an application will be discussed infra .
2 The reasons for the use of the qualification “ostensibly” will be discussed infra .
3 The reasons why this was not an application will be discussed infra .
5

AJ, the Applicants applied for a postponement of the matter. The Court granted
such a postponement and further ordered directives to be applicable insofar as it
related to the Applicants’ application for condonation for the late service of their
replying affidavit, which application for condonation had to be launched on or
before 15 November 2024. Respondents were directed to serve and file any
answering affidavit on or before 22 November 2024, and the Applicants directed
to file and serve any replying af fidavit in the condonation application on or before
6 December 2024. In addition, the Applicants were ordered to file and serve their
practice note and heads of argument and apply for a date on the opposed roll on
or before 13 December 2024, failing which the Respondents were entitled to
approach the Registrar and the Deputy Judge Pres ident for a preferential date.
[12] In the proceedings before Mazibuko J Adv Molopyane represented the Applicants.
[13] Coupled with the aforementioned, Mazibuko AJ ordered the Applicants to pay the
wasted costs on an attorney and client scale, including Scale C.
[14] In compliance with the aforementioned directives issued by Mazibuko AJ the
Applicants launched an application for condonation, which was opposed but as
has been the norm of the Applicants, they again failed to file any replying affidavit.
The Applicants furthermore failed to file a practice note and/or heads of argument
and apply for a date. The Respondents enrolled the purported rescission
application, coupled with the condonation application, for determination before this
Court.

RULING ON THE WITHDRAWAL OF THE APPLICATION:

[15] At the hearing of this matter on Tuesday 6 May 2025 I was informed by counsel
acting for the Applicants , again Adv Molopyane , that a notice of withdrawal of the
application had been served. Such notice had however not been filed with the
Court.
6

[16] In terms of Rule 41(1)(a) of the Uniform Rules of Court a person instituting any
proceedings may at any time before the matter has been set down, and thereafter
by consent of the parties or leave of the Court withdraw such proceedings, in any
of which events he shall deliver a notice of withdrawal and may embo dy in such
notice a consent to pay the costs and the Taxing Master shall tax such costs on
the request of the other party.
[17] The counsel acting on behalf of the Respondents refused to consent to the
withdrawal, following which counsel acting for the Applicants was invited to
address the Court on the reasons why the Court should exercise its discretion and
grant leave for such withdrawal. The attempted withdrawal was not accompanied
by a tender of costs, and the Applicants were , during argument, insistent the
Respondents should separately apply, in terms of the provisions of Rule 41 of the
Uniform Rules of Court, for such a cost order.
[18] Save for insisting that the Applicants were entitled to withdraw the application at
any time, even after enrolment, counsel for the Applicants could not provide any
reason why the Court should exercise its discretion in favouring the withdrawal.
Having regard to the time that has elapsed since the underlying judgment was
obtained, the need for finality and guided by the principles enunciated in Huggins
v Ryan N. O. and Others 1978 (1) 216 (R) at 218 E , and further considering the
Applicants ’ insistence that the Respon dents should apply for an order of costs, I
exercised my discretion to refuse leave to withdraw the application. See in this
regard Levy v Levy 1991 (3) SA 614 (A) at 619 F – 620D.
[19] Following such ruling counsel for the Applicants withdrew, and the matter
proceeded absent any further input from the Applicants . I interpose to state that I
invoke d the “two c ounsel ” rule, and counsel for the Ap plicants thus remained in
Court for the remainder of the proceedings in this matter .


7

THE STATUS OF THE “APPLICATION” FOR RESCISSION:

[20] Neither the Applicants nor t he Respondents raise d any of the issues discussed in
this section of my reasons . The issues were identified by me in preparing the
written reasons for the punitive cost order. The punitive cost order was made
having regard to the conduct of the Applicants that was before me , which conduct
I regar ded as sufficient to justify the punitive order made.
[21] However, and o n 7 May 2025 the judgment handed down in this division by
Raubenheimer AJ, in the matter of Ismail and Another v Davis (2024/136926)
[2025] ZAGPPHC 416 (14 April 2025) came to my attention. The judgment
indicates that Adv Molopyane also represented the applicants therein .
[22] This judgment records a challenge to the status of Malatji Attorneys , the attorneys
on record, as being registered attorneys with the L egal Practice Counsel , and they
were requested to provide proof of such registration . This request was not
complied with and , at the hearing before Raubenheimer AJ , Adv Molopyane
provided his brief from Samalenge Attorneys . Neither a Notice of Withdrawal for
Malatji Attorneys nor a Notice of Appointment of Samalenge attorneys was filed.
[23] I interpose to state that Samalenge Attorneys , in the present matter, previously
represented the Applicants. When the notice of appointment of attorneys in the
present application was filed on 31 O ctober 2024, it indicated the appointment of
Malatji Attorneys as attorney s, care of Samalenge Attorneys.
[24] The hearing before Raubenheimer AJ took place on 6 March 2025, and the
judgment is dated 14 April 2025. Adv Molopyane, in his appearance before me,
ostensibly on instruction of Malatji Attorneys, failed to mention this judgment and
the findings therein .
[25] The judgment of Raubenheimer AJ further alerted me to the unreported judgment
of Retief J in Ramatlapa and Another v SB Guarantee Company (RF) (Pty) Ltd
(61088/2020) [2024] ZAGPPHC 853 (28 August 2024) .
8

[26] In paragraph 26 of her judgment, Retief J states:
“On 8 July 2024, and without Mashao ever formally withdrawing, Malatji Attorneys
[Malatji] came on record by notice. Malatji in the notice was cited as the attorney
of record in care of Samalenga attorneys. This created the impression that
Samalenga was Mal atji’s correspondent. However, both Samalenga attorneys and
Malatji practice in Pretoria and from the same address, situated at the Centenary
Boulevard, at 2[...] B[...] Lane, Church Square Pretoria. The reason for the use of
the acronym ‘c/o’ in the notic e is unknown, it is confusing and certainly under the
circumstances raises suspicion. Furthermore, Malatji’s letterhead fails to identify
any of its partners nor style under which the practice is registered. Whether
practising in a partnership, own account or otherwise. This omission by Malatji is
in contravention of provision 15 of the South African Legal Practice Council Codes
of Conduct promulgated in terms of section 36(1) of the Legal Practice Act 28 of
2014 [LPC Act] .”
[27] And in paragraph 31 Retief J wrote:
“To test the weight of the submission this Court requested Malatji after the hearing
to provide proof of Mr Moses Mosiko’s section 25 certificate confirming his
authority of right of appearance and that he indeed was an admitted attorney in
their employ. No response was forthcoming from Mala tji. Several attempts were
made. In fact, Mr Moses Mosiko’s name nor a firm practising as Malatji attorneys
at the given address on their letterhead, appears on the LPC’s website.
Confirmation of Mr Mosiko’s admission, his right to appear in the High Court and
the proper registration of Malatji with the LPC remains unconfirmed. The necessar y
authorities will be requested to attend to the further enquiry and consequences
thereof .”
[28] Adv Molopyane also appeared before Retief J , ostensibly on instruction of Malatji
Attorneys.
[29} There are however further similarities between the matter presented before Retief
J and the present matter. In paragraph 12 of her judgment, Retief J stated:
9

“The papers which were filed by the applicants in support of the re scission
application consisted of a founding ‘affidavit’ and confirmatory ‘affidavit’. Both
‘affidavits’ purportedly commissioned by one Robert Charles Maasdorp
[Maasdorp]. Maasdorp, at the time was a Court messenger and did not hold office
nor was he autho rised to administer the oath and commission any document as
envisaged in terms of the Justice of the Peace and Commissioners of Oaths Act
16 of 1963 [Oaths Act]. This fact was verified with the office of the Deputy Chief
Registrar of this Division. This wo uld explain why Maasdorp did not clearly set out
his designation nor his ex officio as statutorily prescribed by the Oaths Act and the
regulations thereto. Maasdorp rather and disingenuously so, merely inscribed “The
High Court” as his designation and ex o ffice. Maasdorp then proceeded to detail
the physical address of this Division as the address from whence he held and
exercised such ‘office’ and from where he administered the prescribed oath and
affixed his signature. The weight of the applicants’ eviden ce in support of the
recission application clearly disturbed and Maasdorp perpetrating a possible
fraud. ”
[30] It is the same Robert Charles Maasdorp who “commissioned” the Founding
Affidavit in the present matter. Again, Adv Molopyane failed to disclose it.
[31] Albeit that the first rescission application, launched under the incorrect case
number, was not before me , I perused the Founding Affidavit fi led therein, and
found it was “commissioned” by the same Maasdorp. In addition, such comparison
evidenced, at least prima facie , that the second rescission application under the
correct case number was issued using the original “affidavit ”, as signed, save that
the first page was removed and replaced with a new page, not initialled.
[32] When th e current application served before Mazibuko AJ in November 2024 , and
the Applicants sought a postponement, the judgment of Retief J had already been
handed down. This was also not brought to the attention of Mazibu ko AJ.



10

THE DUTY OF O FFICERS OF COURT:

[33] In his article ‘The dependence of judges on ethical conduct by legal
practitioners: The ethical duties of disclosure and non -disclosure ’ (2021) 4
SAJEJ 47 R Sutherland DJP wrote, on page 4 7, that it is ‘the duty of legal
practitioners to respect and support the process of court by making proper
disclosure and not mislead the court. It is argued that the culture of contemporary
litigation must be more respectful of this interrelationship between the judge and
the legal practitioner to produce efficient and fair litigation .’
[34] At page 64 he wrote:
‘Moreover, in a climate of burgeoning caseloads and the unrelenting pressure on
courts to deliver on the expectations of the litigating public, it is plain that the
dependence of the judge on legal practitioners is acute. The pressures on the
judge and on t he legal practitioner when busy and, perhaps, overwhelmed, create
an environment of fatigue ripe for error, oversight and slackness. The essence of
professionalism is being resilient and compliant with ethical duties under such
conditions. The ethical res ponsibilities of the judge and of the legal practitioners
are in harmony. The symbiotic relationship between the roles of judge and legal
practitioner warrants the respect necessary to produce efficient and fair litigation. ’
(Footnotes omitted.)
[35] As Court I have a duty of oversight over the conduct of officers of Court . In this
regard the following was held in Legal Practice Council v Mkhize 2024 (1) SA
189 (GP) para 1.
‘The public’s faith in the legal system is a condition for the rule of law. The conduct
of lawyers can diminish the legitimacy of the legal system. It is for this reason, that
the Court has oversight over the conduct of its officers. The public must be able to
trust their lawyers will act ethically a nd with integrity; and if the public cannot trust
their lawyers: they must trust that the Court will not hesitate to act. This is such a
11

case, in which the Court is requested to act to redeem a breach of the public’s trust
in the legal system. ’
[36] In Ex parte Minister of Home Affairs and Others; In re Lawyers for Human
Rights v Minister of Home Affairs and Others 2024 (2) SA 58 (CC), at paragraph
107, Majiedt J4 approvingly referred to the Canadian judgment of Lougheed
Enterprises Ltd v Armbruster 1992 CanLII 1742 (BCCA); (1992) 63 BCLR (2d)
317 (CA) at 324 to 325. The Court stated that, “ in an adversarial system, the usual
approach of judicial non -intervention presupposes that counsel will do their duty,
not only to their client but to the court in particular ”.
[37] That duty, said the Court, entails “ to do right by their clients and right by the court....
In this context ‘right’ includes taking all legal points deserving of consideration and
not taking points not so deserving . The reason is simple. Counsel must assist the
court in doing justice according to law ”.
[38] In paragraph 109 Majiedt J refers to an article by Rogers J, wherein he concludes,
amongst others, in respect of the ethical duties of counsel, that “ [t]here is an ethical
obligation to ensure that only genuine and arguable issues are ventilated and that
this is achieved without delay .”
[39] In paragraph 46 of his Public Protector judgment, Ponnan JA quotes with
approval the following:
‘Lawyers are not solely professional advocates or “hired guns”. And while they do
not surrender their free speech rights upon admission to the Bar, they are also
officers of the court with fundamental obligations to uphold the integrity of the
judicial proc ess, both inside and outside the courtroom. It is the duty of counsel to
be faithful both to their client and to the administration of justice. ”
[40] Due to fact that these issues, subsequ ently identified by me, were not fully debated
and ventilated by the parties, I make no final finding regarding the status of Malatji
Attorneys, the conduct of S amalenge Attor neys, the conduct and failures of

4 Zondo CJ, Maya DCJ, Kollapen J, Makgoka AJ, Potterill AJ, Rogers J, Theron J and Van Zyl AJ concurring
12
counsel for the Applicants or the purported commissioning and alteration of the
affidavit. I do however find that counsel for the Applicants had a duty, as officer of
this Court, to disclose the judgments of Retief J and Raubenheimer AJ, which duty
he neglected.
[41] I implore the LPC to investigate the previous and this referral as a matter of
urgency.
\__)L_/
SJ MYBURGH
ACTING JUDGE OF THE HIGH COURT, PRETORIA
These reasons have been delivered by uploading it to the court online digital data base
of the Gauteng Division, Pretoria and by e-mail to the attorneys of record of the parties.
The deemed date and time for the delivery is 21 May 2025.
Date of hearing: 6 May 2025
Date of reasons: 21 May 2025
APPEARANCES:
Counsel for the Applicants: T Molopyane
0815061910
thabo 789@gmail.com
13

Attorney for the Applicants: Malatji Attorneys
0767978466 / 0797289821
saikislegal@gmail.com
Counsel for the Respondents: M Coetzee
076 813 8003
madcoet@gmail.com
Attorney for the Respondents: Mr. HEE Gerneke
083 700 9336
heegerneke@mweb.co.za