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JUDGMENT
Moleleki AJ
[1] This is an application by the applicants in terms of section 26 and 44 of the
Prevention of Organised Crime Act 121 of 1998 (POCA) for the variation of the
provisional preservation of property order granted by this Court on 15 November 2023
in case number 5325/2023 (the provisional preservation order ), as well as the variation
of the provisional restraint of property order in case number 5833/2023 (the provisional
restraint order) dated 21 December 2023, for the release of legal and living expenses
to the applicants.
[2] The first and second applicants are husband and wife who hold dual citizenship
in both South Africa and Namibia . They are also directors of the third and fourth
respondents respectively. The First Respondent (The NDPP) and the second
respondent ( the curator bonis ) are opposing this application.
[3] The return days of the provisional preservation and restraint orders were
extended on numerous occasions. A date for the hearing of the application has not
been allocated yet.
[4] It is common cause that on 30 December 2024 a preservation order was
granted in Namibia in terms of the Namibian statutory provisions preserving all bank
accounts of the first and second applicants and related entities in Namibia .
[5] As a consequence of the orders, the curator bonis was authorised to take into
his possession the property of the applicants and to administer the realisable property.
Background
[6] It is alleged that the first and second applicants together with thirteen others,
were part of a syndicate charged with multiple serious offences of illegal coal mining,
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theft of coal from the State, multiple contraventions of environmental legislation as well
as money laundering offences in contravention of Chapter 3 of POCA. The offences
are said to involve millions of Rands. The allegations above gave rise to criminal
charges being laid against the applicants and thirteen others. These criminal charges
are pending and the trial is set f or 3 to 28 November 2025 in the Middleburg High
Court of this Division. Following these allegations, funds were therefore restrained.
[7] The applicants , therefore, seek the release of funds in order to pay the
reasonable living expenses of the first and second applicants as well as the legal
expenses of the first to fourth applicants as follows:
7.1 R6 200 000.00 for the reasonable legal expenses.
7.2 Monthly payments in an amount of R148 767.05 .
Issues to be Adjudicated
[8] The central issues to be decided upon are whether the applicants have
complied with the jurisdictional requirements provided for in section 26 and 44 of
POCA, thus, making out a case for an order to provide for their reasonable living
expenses and for their reasonable legal expenses.
The Applicant’s Case
[9] The applicants contend that the effect of the orders in the Republic of South
Africa (RSA Orders) and Namibia is that the applicants currently have no access to
any funds or any unrestrained realisable property, whether movable, immovable or
cash. The applic ants are opposing the confirmation of the provisional orders in the
main application. However, due to the numerous postponements of the provisional
orders , a period of one year and four months has elapsed without the opportunity to
be heard in response to the relief sought in the main application. The applicants
contend further that there is a criminal case pending against them, which has been set
down for hearing for four weeks in November 2025. The discovered documents in
respect of the criminal case are voluminous and will require about two weeks of
preparation by their legal representatives.
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[10] For the past 18 months to date, the applicants have , therefore, not had any
funds available to pay legal fees, nor did they have funds to pay for their reasonable
living expenses. It is for this reason that they seek relief for the variation of the
provisional orders , in order to make provision for the payment of expenses in the
amounts claimed. The applicants’ submission is that such amounts are reasonable
under the circumstances.
[11] The applicants maintain that they have met the requirements of both
section 26(6) in respect of the restraint order and section 44(1)(a) and (b) in respect
of the preservation order in that:
11.1 They have an interest in South African assets under the control of the curator
to the value of R128 million;
11.2 They have disclosed all their assets as required; and
11.3 They cannot meet their expenses out of property that is not subject to the
preservation or restraint orders .
The Respondents’ Case
[12] Both respondents (the first and the second respondents) contend that the
applicants have failed to prove any of the jurisdictional requirements envisaged in
section 26 and section 44 of POCA to be successful with their application.
[13] It was pointed out by the respondents that the applicants are obligated to
disclose under oath and furnish the court with a sworn statement of their unpreserved
and unrestrained property and to explain why they cannot provide for their reasonable
living expenses from their unreserved and unrestrained assets.
[14] The respondent s oppose the application for living and legal expenses on the
grounds that the applicants did not take the court into their confidence by failing to
acquaint the court with various material facts. Full disclosure, honesty and absolute
good faith are therefore peremptory requirements for an applicant in an application of
this nature. The second respondent submitted that the applicants relied on incorrect
facts in some respects. The applicants have on several occasions failed to and or
refused to disclose assets and to repatriate the sum of R50 million which was
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transferred to Namibia shortly before the granting of the orders to which this
application is related .
[15] It is submitted that the applicants, alternatively, the second applicant, failed to
disclose all property interests and submit a sworn and full statement of all their assets
and liabilities. This includes the property held in the trust of which the second applicant
is a trustee, the Umbila Trust. Further investigations by the second respondent
revealed that the second applicant is the trustee of Umbila Trust and the various motor
vehicles that are registered to the trust were not disclosed as required in te rms of the
court orders. In terms of the fourth report by the second respondent dated 14
December 2024, the list of the vehicles which the second applicant failed to disclose
is annexed to the second respondent’ supplementary affidavit .
[16] Therefore, the contention by the applicants that they do not have any other
assets, is, according to the second respondent, simply incorrect. This makes the
applicants’ contention that they cannot meet any expenses from unrestrained or
unpreserved property fallacious. Th e second respondent rejects the applicants ’
contention that the non -disclosure of property was a bona fide oversight , maintaining
that, from the outset , they did not intend to disclose such property.
[17] The applicants stated that they never made or received any income without
disclosing it to the second respondent. This, according to the second respondent , is
incorrect in that game was removed by the second applicant and income to the value
of R524 752.50, generated therefrom was not disclosed and remains unaccounted for.
The applicants failed to give an explanation regarding this sum of money in their
replying affidavits.
[18] The contention by the curator is that the applicants are required to make full
disclosure of their interests, assets and liabilities. In addition, the applicants ought to
have taken the second respondent into their confidence when it came to the required
disclosures. However, according to the second respondent, the applicants made a
vague disclosure and therefore, they cannot be assisted with the relief sought in
respect to their reasonable living expenses.
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[19] In so far as reasonable legal expenses are concerned, the curator contends
that the relief sought in the Notice of Motion supported by the founding affidavit is
premature as the court was not furnished with the required information to consider
whether the legal costs as stated concur with the maxim um allowable cost for such
services. The curator ’s submission is that the applicants have failed to appreciate that
section 45 of POCA is not concerned with the applicants’ belief that the fees are not
extravagant or whether there are sufficient funds available in the restrained or
preserved property to adequately provide for legal costs claimed by the applicants.
Therefore, the court may only allow reasonable legal costs in so far as they relate to
legal costs that arise from the provisional restraint and preservation orders that were
granted. Of importance is what the court will regard as reasonable legal fees, having
regard to the maximum allowable costs for such services.
[20] The curator further submits that, although the applicants annexed three
statements of account generated by their attorneys, the attorneys’ fee agreement with
the applicants is irrelevant in an application of this nature . Absent such an agreement,
neither the curator nor the court is in a position to determine how these costs are
derived. For this court to consider the amount claimed, the applicants should have
prepared a detailed statement and or invoices of the services rendered and to be
rendered by the legal practitioners, per the maximum allowed costs in terms of the
tariff tables. Further that, the amount of R1 163 351.97 claimed by the applicants does
not reflect the maximum allowed costs for the alleged services as required by
section 45 of POCA.
[21] The NDPP and the curator submitted further that, the material non -disclosure
of all the relevant facts were reve aled by the historical facts of the matter as follows:
21.1 In the urgent application for living and legal expenses dated 22 May 2024, the
applicants claimed the release of R3 000 000.00 for all their historical and future legal
expenses; R293 349.81 per month for their living expenses and an amount of
R614 585.78 from one of the bank accounts of the Second Applicant.
21.2 In terms of the current application they are claiming the release of
R6 200 000.00 for all their historical and future legal expenses and R148 767.05 per
month for their living expenses.
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[22] This, according to the respondents, would mean that in a short period of
8 months , the applicants’ historical and future legal expenses have increased by
R1 200 000 and their living expenses have been reduced by R144 582.76 per month.
The contention by the NDPP and the curator is that it can be deduced that the
applicants have been dishonest under oath about their real legal and living expenses.
[23] It is contended that the applicants ignored and have done everything possible
to circumvent the provisional restraint order dated 21 December 2023 by not disclosing
all their assets both in South Africa and Namibia . Despite the fact that they were
ordered in terms of section 26(7) of POCA to disclose within ten days of knowledge of
the order, a description and whereabouts of all their realisable property to the second
respondent by way of affidavit. The applicants, therefore, failed after more than 13
month s to comply with the provisional order to repatriate all their realisable assets from
Namibia to South Africa.
[24] The first and second respondents contend that POCA does not make provision
for legal entities like the third and fourth respondents to apply for legal and living
expenses. In any event, in terms of the provisional preservation and restraint orders ,
the third and fourth applicants fall under the control and administration of the curator
bonis , who administers the businesses. Seeing that the third and fourth applicants are
under the curator , the first and second applicants do not, therefore, have locus standi
(legal authority) to bring an application for living and legal expenses for legal entities.
Prevention of Organised Crime Act
[25] Crucial to this application are the provisions of POCA. I, therefore , find it
necessary at this stage to consider the provisions of POCA and the approach our
Courts have adopted.
[26] Section 26(1) provides:
“The National Director may by way of an ex parte application apply to a competent
High Court for an order prohibiting any person, subject to such conditions and
exceptions as may be specified in the order, from dealing in any manner with any
property to which the order relates.”
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[27] Section 26(6) provides:
“Without derogating from the generality of the powers conferred by subsection (1), a
restraint order may make such provision as the High Court may think fit –
(a) for the reasonable living expenses of a person against whom the restraint order
is being made and his or her family or household; and
(b) for the reasonable legal expenses of such person in connection with any
proceedings instituted against him or her in terms of this Chapter or any criminal
proceedings to which such proceedings may relate.
If the court is satisfied that the person whose expenses must be provided for has
disclosed under oath all his or her interests in property subject to a restraint order and
that the person cannot meet the expenses concerned out of his or her unrestrained
property.”
[28] The purpose of POCA is to foster the prevention of crime, to strip criminals of
the proceeds of their crimes, thus removing the incentive for crime, and not to punish
them .1 As noted by the Constitutional Court, the provisions of POCA provide a
framework for a strategy for the combating of modern organised criminal activity. The
purpose is achieved, in part, by ensuring that the proceeds of criminal activity and
those assets utilised as an instrumentality of crime can be wrested from the control of
the alleged criminal and, following a process of forfeiture to the State, be utilised for
combating crime. This broad scheme, in terms of which assets may be seized,
preserved and ultimately confiscated, is however not intended merely to enrich or
benefit the State. On the contrary the seizure and forfeiture of assets is subject to a
range of checks and safeguards designed to balance the interests of the State in the
restrained or pr eserved assets and those of third parties who may have an interest in
such assets .2
[29] The effect of a restraint order is to place the property beyond the control of an
applicant and into the hands of a curator bonis pending the outcome of the criminal
1 National Director of Public Prosecutions v Mohamed NO and Others 2002 (4) SA 843 (CC) para 15 .
2 National Director of Public Prosecutions v Elran 2013 (1) SACR 429 (CC).
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proceedings. All property held by an applicant may be subject to restraint, in addition
to property transferred to him or her after the restraint order is imposed .3
The release of funds in terms of section 26
[30] A person who applies to the High Court in terms of section 26(6) to make
provision for reasonable living and/or legal expenses must satisfy the c ourt that he or
she has disclosed under oath all his or her interests in property subject to the
restraining order and that he or she cannot meet the expenses for which an allowance
is sought out of the unrestrained property. Both of these requirements must be met to
enable a court to exercise its discretion in favour of the person so applying. When the
court is sa tisfied, it may make such provision as it may think fit.
[31] While section 44(1) empowers a court to make provision for living and legal
expenses, section 44(2) provides that a court shall not afford living and legal expenses
unless it is satisfied that –
31.1 The person cannot meet the expenses concerned out of his or her property
which is not subject to the preservation of property order; and
31.2 The person has disclosed under oath all his or her interests in the property and
has submitted to that court a sworn and full statement of all his or her assets and
liabilities.
[32] It is established that section 26 relates to restraint orders and its provisions are
similar to those of section 44. The requirements of section 44(2)(a) and (b) are
preconditions of section 44(1). The first precondition under section 44 is need and the
second is disclosure. The only difference between section 26 and 44 is that
section 44(2) expressly stipulates that a court shall not make provision for legal or
living expenses unless the person whose assets are restrained or preserved satisfies
the two preconditions.
[33] In so far as the application in terms of section 44(2) is concerned, the applicant,
when applying for an order for expenses from the preserved property, must disclose
3 Fraser v Absa Bank Ltd (National Director of Public Prosecutions as Amicus Curiae) 2007 (3) SA 484
(CC) par a 12.
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under oath all his or her interests in the property and he or she must submit a sworn
and full statement of all his or her assets and liabilities. The main reason disclosure is
required is to satisfy the court that the applicant is unable to meet the expenses out of
the property not subject to the preservation order .4
[34] Therefore, for the court to be able to determine that the applicant is unable to
meet the expenses, the information required to be disclosed must have been
furnished. Without knowing the extent of the applicant’s interest in the preserved
property , the court may have difficulty in establishing how much is available in the
preserved property from which it can authorise payment of expenses. The reason for
the submission of a sworn and full statement of all assets and liabilities is to enable
the court to have a full picture before it determines whether there is unpreserved
property from which the applicant can meet the expenses, and if so, how much
provision can reasonably be made from the unpreserved property for such expenses .5
Full Disclosure
[35] The applicants are required to satisfy the court that they have made a full
disclosure under oath of all their interests in the restrained property. The provisional
restraint order required the applicants to disclose and surrender all property held by
them, either specifically listed in Annexure “A” and/or all property at any time before
or after the granting of the order , whether in their respective names or not, including
all property held for or on their behalf by any person. The order limits the extent of
realisable property to be restrained to the value of R264 000 000.00.
[36] Paragraph 19 of the provisional restraint order reads as follows: “In terms of
section 26(7) of POCA, the defendants and respondents be and are hereby ordered
to disclose, within ten (10) days after getting knowledge of this restraint order, to the
curator on affidavit or in such form as the curator may deem necessary, a description
and the whereabouts of all realisable Property ”.
4 National Director of Public Prosecutions v Elran 2013 (1) SACR 429 (CC) para 81 .
5 Ibid para 113.
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[37] In order to reach a determination which is fair and just in view of the objects
and wording of POCA, together with constitutionally protected fair trial rights, the
circumstances of each case have to be considered .6
[38] The applicants must satisfy the court that they have made full disclosure under
oath of all their interests in the restrained property, if they are to succeed in terms of
section 26. It was averred on behalf of the applicants that they have disclosed all their
interests in the restrained property. The provisional restraint order authorised the
curator to take the realisable property into his possession and control, whether such
property is situated in or outside the Republic of South Africa. The allegations by t he
NDPP are that the restrained assets derive from illegal coal mining, theft of coal,
multiple contraventions of environmental legislation as well as money laundering. It is
from the business of selling coal that the NDPP base their criminal charges. With out
incriminating themselves in any way, the applicants are expected to disclose their
interests in the property. They are, however, silent on this aspect.
[39] On the other hand, the provisional preservation order was granted on
15 November 2023. The order covered all property that belonged to the applicants. In
their affidavits in support of this application, the applicants stated that all their assets
and those of the entities of which they are directors and/or shareholders of, in both the
Republic of South Africa and Namibia have been seized, restrained and preserved.
Further that, as matters currently stand, they do not have any income or access to any
funds, except for an amount of approximately R58 818.49 per month which they
receive from rental and monthly annuity pay -out respectively, as well as old age grant
from the Republic of Namibia in the amount of N$3 200.
[40] The first and second applicants brought this application seeking an order
authorising payment of the living expenses for themselves as well as legal expenses
for themselves and other entities for which they are directors. In this respect, the
contention by both the NDPP and the curator is that the first and second applicants do
not have legal authority to act on behalf of the two entities. The curator contends that
he is unable to act outside of the court order to make payments which are not
6 Fraser at fn 4 above para 72 .
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authorised in terms of the court orders . Vally J in Regiment s Fund Managers (P ty) Ltd
v and Others v Nel NO. and Another7 granted leave to appeal his decision to the
Supreme Court of Appeal on the basis that there were two different approaches on
whether applicants whose property is vested in under the control of a curator have the
authority to initiate or defend the entity during litigation.
[41] When orders are made in terms of POCA in matters of this nature, the purpose
is to preserve assets that are the subject of the restraint order. The owners of such
assets are therefore divested of all control over the assets. Such assets will then be
placed under the control of the curator bonis who will care for and administer the
assets. It is for this reason that when a restraint order is granted, the owners of the
assets or any other person s are restrained from dealing with such assets and only the
curat or is entitled to deal with the assets on behalf of the owners. I , therefore, agree
with the contention by the respondents that the first and second applicants do not have
authority to initiate litigation on behalf of the entities.
[42] There was an amount of R50 million which was transferred to Namibia shortly
before the granting of the orders to which this application is related. The applicants,
and the second applicant in particular, failed to submit a sworn and full statement of
all their assets and liabilities. This includes the property held in Trust, the Umbila trust,
of which the second applicant is a trustee. Any assets related to the trust, including
vehicles, were not disclosed. In response, when confronted about the assets they had
failed to disclose, the applicants’ contention was that the non -disclosure was a bona
fide oversight. Game was removed from one of their farms and income to the value of
R524 752.50 was generated therefrom. This was not disclosed , and the money
remains unaccounted for. One would have expected the applicants to address this
issue in their affidavits , but they did not.
[43] From the facts of this matter, it is clear that the applicants ignored the orders of
this Court by not disclosing all their assets both in South Africa and Namibia. The
general rule is that orders of court must be obeyed. Were this not so, the protection of
the rights of persons and the resolution of disputes by recourse to the Court, which is
7 Regiment s Fund Managers (Pty) Ltd v and Others v Nel NO and Another [2024] ZAGPJHC 1559.
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established for that purpose, would be of little, if any, effect and the community would
be deprived of the proper administration of justice .8
Inability to meet expenses out of unrestrained property
[44] In their initial urgent application on 22 May 2024, the applicants sought the
release of R3 000 000 for all their historical and future legal expenses; R293 349.81
per month for their living expenses ; and an amount of R614 585.78 from one of the ir
bank accounts. In these proceedings, the amount for legal expenses has doubled to
R6 200 000.00 without any information that would assist the court in determining how
it was arrived at, especially to justify the fact that it has doubled. In respect of the living
expenses, the amount has been mysteriously reduced by approximately R144 582.76
in a period of about 12 months.
[45] The applicants stated that when a preservation order was granted on
30 December 2023 in terms of the Namibian POCA legislation, it effectively restrained
all funds in entities and trusts in Namibia , which therefore left them with no assets to
rely on. Further, at that stage , they had no property that was unrestrained, either in
South Africa , Namibia or anywhere else. This cannot be correct due to the fact that,
prior to 6 March 2024 when the Namibian restraint order was granted, they were able
to pay their reasonable expenses from the Namibian funds. What the applicants fail to
mention is that they had failed to disclose all their interests in the Namibian property,
under oath and to submit a sworn and full statement of all their assets and liabilities.
[46] The applicants had also failed to disclose their interests in the following:
46.1 Welgevonde Farm, which is a farming enterprise in the extent of 3755 hectares
situated in the Aranos District, Namibia, with a total value of approximately
N$11 265 000.00; and
46.2 Game, that is, approximately 100 Oryx Antelope, 50 Kudus, 100 Wildebeest,
20 Eland Antelope, 50 Impala, 500 Springbuck, 5 Zebras, 20 Red hartebeest, 6 Sable
Antelope, 4 Giraffe s, and 4 horses.
8 Di Bona v Di Bona [1993] 3 All SA 624 (C) at 628.
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[47] It has not been indicated whether Welgevonde Farm is generating any income
and or profit ; if any , what the turnover is, if any, what are the running expenses, save
for the stipend that was said to have been paid to the two employees.
[48] The order granted by the Namibian High Court on 6 March 2024 was a
provisional restraint order , with a rule nisi , in terms of which the applicants’ Namibian
property was restrained. This rule nisi was discharged on 22 November 2024. This
property therefore became available to the applicants until the Namibian Financial
Intelligence Centre placed a hold on all of their FNB bank accounts on 30 December
2024. It is important to note that this provisional preservation order preserves positive
balances of the specific FNB accounts and no other assets or property. From the
information before court, it cannot be found that there are no other available assets to
meet their expenses.
[49] Once again, it would have been expected of the applicants to address the court
concerning these assets. In an attempt to explain their failure to disclose the assets in
Namibia, the applicants’ Counsel submitted that the approach the applicants had
adopted was that the South African orders did not apply to the assets in Namibia. They
submitted further that they were therefore under no obligation to disclose the Namibian
assets .
[50] The applicants do seem to comprehend the problem in their non -disclosure of
their Namibian assets. They continued to use the funds from the Namibian assets to
pay for all their expenses. This explains why their first urgent application was brought
in May 2024 . This was after their assets in Namibia had been discovered and a
provisional restraint order was granted. The urgent application was not pursued and
was ultimately withdrawn on 7 June 2024 and costs tendered. For the period from May
2024 to the current application, the applicants did not deem it necessary to bring the
applicatio n for living and legal expenses. There is no reason why this was not given
priority.
[51] There was an amount of R5 million which was obtained by the applicants. There
is no explanation as to how much of the said amount had been drawn or expended
and why provision was not made therefrom to pay for legal expenses. Without this
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information, it may very well be that there are funds available which the applicants can
use for all expenses.
[52] This Court cannot accept the applicants’ submission that they had no obligation
to disclose the Namibian assets. These assets are their source of living which they
have failed to disclose. As stated, they have not necessarily explained how they derive
their income, excluding the amount s already declared. It is therefore compelling to
conclude that the Namibian assets are an instrumentality of crime and that could be
the reason they did not disclose them.
[53] I am also persuaded to conclude that the FNB accounts are not the only assets
that they have. This conclusion would lead to the result that the applicants have failed
to satisfy the court that they cannot meet their living and legal expenses from their
unrestrained and unpreserved property as prescribed by sections 26 and 44(2)(a) of
POCA.
[54] I agree with the contention that mere assertion by the applicants that they are
unable to fund their living and legal expenses is plainly insufficient to meet the
requirements .
[55] An applicant who seeks to have restrained assets released for them to meet
their living and legal expenses must place facts before the court that would establish
that they are unable to meet their reasonable expenses from the unrestrained assets
or income. Such information would have placed the court in a position to exercise its
discretion on whether to release such funds. The applicants have failed to satisfy this
requirement , as there is no information as to their income. In the absence of such
information, it may very well be that there are funds to meet their expenses.
[56] In the circumstances, the application must fail.
Costs
[57] The respondents argued that a punitive cost order be made against the
applicants. It was also argued that the court should take into consideration the
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The judgment was handed down electronically by circulation to the parties' and/or the
parties' representatives by email. The date and time for hand -down is deemed to be
10h00 on 11 June 2025
Appearances
For the Applicants : Mr MMW Van Zyl SC with Mr JJ Venter
Instructed by: Tim Du Toit & Co. Inc
Pretoria
C/O Combrink Greyling Attorneys
Mbombela
For the First Respondent: Mr K Van Der Walt
The State Attorney Mbombela
For the Second Respondent : Mr J Hershensen SC
Instructed by: Van Der Merwe & Associates
Pretoria
C/O Gerrie Groenewald Attorneys
Mbombela
Heard on: 8 May 2025
Judgment delivered on: 11 June 2025