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compliance with the law and SAFLII Policy
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA )
CASE NO: 14557/20
(1) REPORTABLE: YES / NO
(2) OF INTEREST TO OTHER JUDGES: YES / NO
(3) REVISED. YES
DATE 23 May 2025
SIGNATURE
In the application to stay a warrant of execution between:
MANAPANE GRACE POOPEDI
(Identity number: 6[...]) FIRST APPLICANT
CHOENE LAZARUS POOPEDI
(Identity number: 4[...]) SECOND APPLICANT
RAMATSOBANE POOPEDI
(Identity number: 8[...]) THIRD APPLICANT
and
SB GUARANTEE COMPANY (RF) (PTY) LTD
(Registration number: 2006/0215576/07) FIRST RESPONDENT
THE SHERIFF: BOKSBURG NORTH SECOND RESPONDENT
MEC: GAUTENG PROVINCIAL DEPARTMENT
OF EDUCATION THIRD RESPONDENT
DIRECTOR: OFFICE OF THE DISTRICT OF
EKHURHULENI SOUTH FOURTH RESPONDENT
THE CHIEF EXECUTIVE OFFICER OF THE
GOVERNMENT EMPLOYEES PENSION FUND,
REGISTRAR OF DEEDS FIFTH RESPONDENT
In the application for declaratory relief between:
MANAPANE GRACE POOPEDI
(Identity number: 6[...]) FIRST APPLICANT
CHOENE LAZARUS POOPEDI
(Identity number: 4[...]) SECOND APPLICANT
RAMATSOBANE POOPEDI
(Identity number: 8[...]) THIRD APPLICANT
and
SB GUARANTEE COMPANY (RF) (PTY) LTD
(Registration number: 2006/0215576/07) FIRST RE SPONDENT
MEC: GAUTENG PROVINCIAL DEPARTMENT
OF EDUCATION SECOND RESPONDENT
DIRECTOR: OFFICE OF THE DISTRICT OF
EKHURHULENI SOUTH THIRD RESPONDENT
THE CHIEF EXECUTIVE OFFICER OF THE
GOVERNMENT EMPLOYEES PENSION FUND, FOURTH RESPONDENT
REGISTRAR OF DEEDS – OFFICE OF THE
STATE ATTORNEY, PRETORIA
JUDGMENT
Introduction :
1. On 3 December 2020, this court ( per the Honourable Basson J) granted
summary judgment in favour of the first respondent against the applicants,
jointly and severally, the one paying the other to be absolved, for an order in
the following terms:
1.1. Payment of the amount of R1,537,568.76 (One million five hundred
and thirty -seven thousand five hundred and sixty -eight rand and
seventy -six cents);
1.2. Interest on the amount referred to at the rate of 10.80% per annum
from 12 February 2020 to date of payment, both dates inclusive;
1.3. That the immovable property described as:
Erf 5[...] F[...] P[...] , Ext 1 Township
Registration Division I.R., Province of Gauteng
Measuring 1105 (One thousand one hundred and five) square meters
Held by Deed of Transfer No. T36393/2016
Subject to the conditions therein contained
(“the property ”)
be declared specially executable;
1.4. An order authorising the issuing of a writ of execution in terms of
Rule 46 as read with Rule 46A for the attachment of the property;
1.5. The property to be sold at a reserve price of R900,000.00;
1.6. Cost of suit.
The application for a stay of execution:
2. During June 2021, the applicants instituted an application seeking a stay of
the warrant of execution and attachment authorised in terms of the summary
judgment (“the stay application”).
3. In the stay application, the applicants also seek substanti ve relief against the
third, fourth and fifth respondents.
4. Despite the applicants seeking far -reaching and invasive relief against the
third, fourth and fifth respondents, it does not appear as if the applicants
served th e stay application on the third to fifth respondents.
5. Moreover, despite this being a substantive application, the applicants have
inexplicably issued an interlocutory application under the same case number
as the summary judgment proceedings. This is inappropriate.
6. This application is not interlocutory in nature and the third, fourth and fifth
respondents were not parties to the summary judgment proceedings.
7. The stay application is instituted by the applicants as the first applicant is
currently embroiled in a dispute with the third, fourth and fifth respondents
regarding the payment of her pension pursuant to her resignation as an
educator. This has nothing to do with the first respondent who obtained
judgment as long ago as 3 December 2020.
8. The applicants in their stay application allege that:1
“The Honourable Court has in favour of the first respondent granted
judgment against me and my co -applicants. I respect the judgment.”
9. Significantly, when the applicants instituted their present application for a stay
of execution, the applicants elected not to appeal against the summary
judgment order aforesaid.
10. Pursuant to the institution of the stay application, the first respondent held
over with execution steps for the next 3 years. This was clearly an indulgence
on the part of the first respondent.
1 Page D43, para 10.2.
11. The first respondent eventually filed an answering affidavit during
August 2024. The delay in filing an answering affidavit is explained on the
basis that the first respondent continued to grant the applicants an indulgence
to bring the pending litigation instituted between the applicants and the third,
fourth and fifth respondents either to finality, alternatively, to reach an
amicable solution.2
12. In its answering affidavit, t he first respondent claims that the applicants have
failed to make out any case for a stay of execution. I agree.
13. Regardless of the aforementioned, the applicants have subsequently changed
their stance and have indicated that they do not wish to proceed with the ir
stay application . In this regard, the applicants have filed a notice of
withdrawal of the application for a stay. As this was done after the matter was
set down, this can only be achieved with the consent of all the parties,
alternatively with the leave of the court.
14. The first respondent has not consented to the withdrawal of the application
and persists on an order being granted on the merits.
15. Having considered the matter, I am inclined to agree to the first respondent’s
request.
16. I am of the view that there is no merit in the application for a stay, and
accordingly, I intend to dismiss the stay application.
The application for declaratory relief:
17. During October 2024, the applicants instituted an application in which the
applicants seek various declaratory orders against the first to fourth
respondents.
2 Page F16, para 11.2.
18. Even though the applicants seek substantive relief against all of the
respondents, the applicants have again instituted an interlocutory application
under the same case number as the summary judgment proceedings.
19. The defective nature of the application aside, the application was also not
properly served on all of the respondents.
20. In Lutchman N.O. and Others v African Global Holdings and Others ,3 the
Supreme Court of Appeal per Meyer AJA (Saldulker JA, Molemela JA, Gorven
JA and Smith AJA concurring) indicated the following with regard to the
peremptory requirements of service pertaining to substantive applications4:
“On a proper conspectus of the papers, it cannot be said that there has
now been compliance, or even substantial compliance, with the service
and the notification prescripts … First, the business rescue application
ought to have been served by the Sheriff on each joint liquidator of
each of the six Bosasa companies in the manner provided for in
Rule 4(1)(a) of the Uniform Rules of Court. It is a substantive Form 2(a)
application, and not an ancillary or interlocutory application, which, in
terms of Rule 4(1)(aA) may be served upon an attorney representing a
party in proceedings already instituted.”
21. The first respondent has opposed the declaratory orders and ancillary relief
sought against it.
22. As set out above, the relief sought against the first to fifth respondents
constitutes substantive relief and as such, the applicants ought to have
instituted a substantive application under a separate case number, which
application had to be served on the first to fifth respondents by way of sheriff.
23. The applicants have failed to do so and the application for declaratory relief
was simply delivered by hand to the first to fifth respondents.
3 2022 (4) SA 529 (SCA).
4 At para 40.
24. Regardless of the defective service, the second to fifth respondents have not
opposed the application for declaratory relief.
25. On 7 May 2025, the applicants delivered a notice of intention to amend their
notice of motion. The notice of intention to amend, affects the second to fifth
respondents. To date hereof, the applicants have not effected the amendment
by the delivery of the amended pages.
26. Aside from the aforegoing, t he notice of intention to amend is confusing in
multiple respects. Firstly, no mention is made with regard to what prayers
ought to be deleted. Secondly, the prayers that the applicants seek to
introduce in its amended notice of motion, in fact, does not amount to relief at
all but rather appear to be an explanation as to why the first respondent was
cited as a party in the declaratory relief application.
27. Effectively, the applicants in its notice of intention to amend contend that
neither Standard Bank nor the first respondent (SB Guarantee) has a direct
and substantial interest in the declaratory relief sought by the applicants.
28. This is clearly incorrect as the applicants in its notice of motion (in its
unamended form) clearly seek declaratory orders that affect the first
respondent directly.
29. During the hearing of the matter, the applicants indicated that it was not
persisting with any relief against the first respondent in terms of this
application.
30. The first respondent seeks a dismissal of the relief sought against it in the
application for declaratory relief.
31. The applicants have failed to make out any case against the first respondent
for any declaratory relief.
32. The first respondent seeks costs on an attorney and client scale. I am inclined
to agree to this request. There was never any case made out against the first
respondent in either of the two applications.
33. In the premises, the following order is granted:
33.1. The applicants’ application for a stay of execution is dismissed with
costs on an attorney and client scale.
33.2. The applicants’ application for declaratory and ancillary relief against
the first respondent is dismissed with costs on an attorney and client
scale.
33.3. The applicants’ application for declaratory relief against the second,
third and fourth respondents is postponed sine die .
33.4. The applicants are ordered to serve the application for declaratory
relief on the second, third and fourth respondents by way of sheriff.
SG MARITZ AJ
ACTING JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
Counsel for Applicant s: Mr MD Molusi
Attorneys for the Applicants : Molusi Attorneys
Counsel for 1st Respondent: Adv LA Pretorius
Attorneys for 1st Respondent: Vezi & De Beer Inc
Date of Hearing: 19 May 2025
Date of Judgment: 23 May 2025