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This judgment was handed down electronically by circulation to the parties and/or
parties’ representatives by email. The date and time for hand -down is deemed to be
18 June 2025 at 10:00.
JUDGMENT
Bhengu AJ
Introduction
[1] This is an opposed urgent application brought by the applicants in their capacity
as the trustees of Morneo Family Trust and in their individual capacity . The
applicants are married in community of property to each other. They fall within
the class of accused persons and affected persons whose assets are subject to
a restraint order in terms of section 26 of the Prevention of Organised Crime Act
121 of 1998 (“POCA”). They are seeking an interdict ory relief to stop the first
respondent (“the Curator ”) from proceeding with th e sale of the immovable
property described as Portion 121 of the Farm 64 White River, Mpumalanga
Province “the Property ”.
Brief background facts
[2] On 23 September 2022 the National Director of Public Prosecutions (“NDPP”)
sought and obtained a provisional restraint order in terms of section 26 of POCA
against the applicants . In terms of the restraint order the applicants’ joint estate ,
including the immovable property which is the subject matter of this application
form part of the assets under restraint order , pending the criminal proceedings .
The said property at the time was used as a wedding venue and a conference
centre.
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[3] The applicants were called upon to show cause on 18 November 2022 why the
provisional order should not be made final. The applicants did not oppose the
provisional order, and a final order was granted on 05 December 2022.
[4] The first respondent, was appointed as a curator bonis in terms of section
28(1) (a) of POCA and subject to the applicable provisions of the Administration
of Estates Act 66 of 1965 . He has since taken the restrained propert y under his
control.
[5] The matter was enrolled on extreme urgency basis . The urgent application was
served via email on 19 May 2025 at 16h24 , setting the matter for hearing on 27
May 2025. The respondents were required to file their notice to oppose by 20
May 2025 and a n answering affidavit by 21 May 2025. The respondents indeed
filed the ir intention to oppose and answering affidavits withing the truncated time
limits.
[6] On 27 May 2025, the date of hearing, the applicant s sought condonation for the
late filing of their replying affidavit . The application was opposed by the
respondents on the basis that the replying affidavit was only served on the first
respondent on the eve of the hearing and that the replying affidavit was not
accompanied by a formal application for condonation . The second respondent
objected on the basis that they were never served with the replying affidavit . The
applicants ’ counsel requested permission to file the replying affidavit during the
hearing and for the matter to be heard later in the day to allow the parties and
the court to have regard to the replying affidavit . I refused the application on the
basis that the applicants failed to comply with the basic rule for service of
documents on all parties to the proceedings and to apply for condonation for
noncompliance with the practice directives for management of urgent matters.
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Respondents ’ points in limine
[7] The respondents raised four points in limine. First point in limine for lack of
urgency, second point in limine for non -compliance with the disclosure
obligations in terms of section 26(7) of POCA, third point in limine for absence of
a confirmatory affidavit by the second applicant, and fourth point in limine for
failure to satisfy the requirements for interim interdict. I will first deal with urgency.
Urgency
[8] It is trite that an applicant in an urgent application must set out in their founding
affidavit the circumstances which render the matter urgent and must also satisfy
the court why the applicant claim that she/he will not obtain substantive redress
at a hearing in due course that warrants departure from the times frames
prescribed in Rule 6(5)(b) .1
[9] According to applicants t he urgen cy was precipitated by the information that the
applicant s received on 16 May 2025 from an ac quaintance who was passing by
the property and saw an advertisement for sale by public tender which was
posted outside the property . The deadline for submitting tenders being 30 May
2025.
[10] The first applicant averred that he was taken aback by the move of the Curator
considering that his attorneys of record had been engaging with the Curator
regarding the Curator’s notice to sell the immovable property . The chronology of
events leading up to this urgent application according to the applicants are as
follows:
1Luna Meubel Vervaardigers (Edms) Bpk v Makin & Another (t/a Makin's Furniture Manufacturers) 1977 (4) SA
135 (W) at 137F ; East Rock Trading 7 (Pty) Ltd and Another v Eagle Valley Granite (Pty) Ltd and Others
(11/33767) [2011] ZAGPJHC 196 (23 September 2011) at para 6.
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[11] On 19 April 2024 the Curator sent the Applicants a Notice to Sell the Property. In
this notice the Curator informed the applicants that the value of the property
continued to de cline every month as a result of escalating municipal ar rears,
security, and insurance costs .
[12] The notice further in formed the applicants that there were no liquid assets to pay
off the expenses an d requested the applicants to furnish him with sufficient
security and or acceptable (lawful) means to pay the outstanding debt owed to
the municipality and to preserve the value of the movable and immovable
property and to reduce the costs. He invited the a pplicants to consult with him
within 14 days from the date of the letter “in order to prevent the immovable and
movable property from being sold on auction or tend er in order to properly
administer the estate ” under his control.
[13] On 09 May 2024 the applicant s’ attorneys sent a letter to the Curator . In
summary, t he said letter raised the following issues:
13.1 That the Trust deny that the property was owing arrear rates and taxes
to the Municipality , that the applicants had not received any statement or
letter of demand from the municipality regarding the outstanding debt , that
the proper ty was using borehole water and solar pump . They denied that
there was an account for solar water.
13.2 Regarding the unavailability of any liquid assets to satisfy the expenses,
the applicants state d that the Curator had failed to consult them or their
accountants after obtaining the order as required by paragraph 12.7 to
establish whether there are any realisable assets or not .
13.3 They recorded that the properties were losing value as a result of the
failure on the part of the curator to preserve the properties and to explain
why the property was not generating income. The applicants indicated their
willingness to meet with the Curator to discuss the matter further.
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[14] On 15 May 2024 the Curator sent a letter to the applicant s’ attorneys. In this letter
the Curator requested amongst other things: details about the legal mandate of
the applicants ’ attorney, the applicants’ financial affairs and how they were
funding the legal services in compliance with the restraint order .
[15] On 17 July 2024, the applicants’ attorneys responded to the Curator, and they
objected to furnishing the requested finan cial information related to the
agreements between the applicants and their attorneys on the basis of legal
privilege . The Curator was asked to follow Uniform Rule 7 route if he is
questioning their mandate. The letter further stated the following:
“…Lastly, kindly indicate if you are persistent on auctioning the property despite
the issues, we have raised of which you have not responded to.”
[16] According to the applicants until the date when they launched the urgent
application , the Curator never respon ded to the letter of 07 July 2024 . They then
sent a follow up email dated 26 July 2024 to which there was again no response .
The applicant s averred that they were compelled to approach this Court on an
urgent basis to interdict the sale pending the finalization of the criminal trial as
the “Curator ’s conduct in seeking to sell the property behind the back of the
Trustee s constitute an ambush and is not justified .” The applicants averred that
the matter is extremely urgent as the tenders close on the 30th of May 2025 ,
whereafter the successful bidder will take full ownership of the property .
[17] The applicants averred that the property was purchased to sustain future
generations of their family. Should the property be sold, the Trust will not be
afforded sufficient redress in due course in that i f the court does not come to
their assistance and in the event that they are acquitted in the pending criminal
trial, the property would never be recovered. According to the applicant s the
damages claim will not be possible to quantify as the property is currently in a
dilapidated state. Further, the applicants averred that there is sufficient movable
property that the Curator can sell to cover the expenses. The property was
functioning as a conference area and could be leased out at an amount of
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R500,000.00 . They alleged that the Curator has allowed the property to
deteriorate into a “white elephant”.
Respondent s’ Point in limine on Urgency
[18] The point in limine was raised by the first respondent. He contended that the
application lacked urgency and/or alternative ly the urgency as pleaded by the
applicants was self-created. They averred that the applicants were made aware
of the curator’s intention to sell the property as early as 19 April 2024. He
contended that the application was designed to obstruct the lawful execution of
his duties as the Curator rather than to advance any meritorious legal claim . He
averred that the re was an inordinate delay in bringing the application, that the
founding affidavit of the applicants is replete with material misrepresentations
and omissions.
[19] The first respondent averred that the applicants’ asse rtion that he failed to
respond to their corresponden ce dated 17 and 26 July 2024 is patently false. He
averred that the applicants deliberately misled the Court in their chronology
leading up to the urgent application by exclu ding material facts which goes to the
heart of the applicants ’ case. In this regard, the first respondent contended that
there were repeated and documented efforts by the Curator to engage the
applicants for purpose of consultation since 2023 and more specifically on 19
April 2024, 15 May 2024, 09 October 2024 and on 06 November 2024.
[20] He referred to correspondence addressed to the applicants’ attorneys dated 09
October 2024, whereby the first respondent recorded the following:
“Kindly advise regarding a suitable date and time to meet with you and your
client’s to discuss the Property… we are amenable to a virtual meeting.”
[21] The respondent further referred to a follow up letter dated 06 November 2024
which recorded the following:
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“We refer to the above matter as well as our ma il of 9 October 2024, to which we
do not seem to have received a response from you.
We invited you to meet to discuss the sale of Portion 64… as well as the movable
assets of your clients held at the property….
Please be advised that the first respondent is now compelled by the prevailing
circumstances to proceed with the sale of the property and assets without further
delay to ultimately preserve value .”
[22] On 09 November 2024, the applicants’ attorneys responded as follows:
“Kindly be advised that we do not have instructions from our client to discuss the
property you are referring to. We further ask for your indulgence while we wait
for instructions from our client on how to proceed with the property described
below.”
[23] The first respondent contended that the failure by the applicants to attach or even
acknowledge this correspondence misrepresent the t rue factual context of the
application which must be viewed in the most serious light as it undermines the
integrity of the proceedings .
[24] The respondents further contended that the absence of an explanation for the
delay since the initial notice was given on 19 April 2024 combined with the
Applicants ’ failure to engage with or challenge the first respondent ’s powers, the
failure to apply for relief under Section 26(6) and the ir failure to comply with
section 26(7) of POCA renders the application fatally deficient.
[25] The preliminary issue for determination by this Court is whether the applicants
have made out a case for urgency. If so, whether the applicant s have satisfied
the requirements for an i nterim interdict .
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Discussion
[26] It is common cause that the court granted a restraint order in terms of section
26(1) of the Prevention of Organised Crime Act 121 of 1998 (POCA). The
applicants however, throughout the founding affidavit referred to a “preservation
order”. While the applicants’ counsel attributed the reference to the preservation
order instead of a restraint order as an honest oversight on the part of counsel
when preparing the papers, it is however not clear on the papers whether the
applicants underst ood the difference between the two order s and the legal
consequences that flow from a restraint order. This will be discussed later in the
judgment.
[27] Chapter 5 of POCA, Section 26(1) provides as follows:
“(1) 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. ”
(2) A restraint order ma y be made -
(a) in respect of suc h realizable property as may be specified in the restraint
order and which is held by the person against whom the restraint order
is being made;
(b) in respect of all realizable property held by such person, whether it is
specified in the restraint order or not; in respect of all property which if it
is transferred to such person after the making of the restraint order would
be realizable property ”.
[28] In the applicants ’ case, the restraint order states that the realisable property
included assets listed in Annexure A attached to the order and “all other property
held by the defendants and respondents 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 behalf of the Defendants and Respondents and any other people .” The
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effect of the order is to preserve realisable property pending the outcome of the
criminal proceedings.
[29] A Curator bonis appointed in terms of section 28(1)(a) of POCA is granted wide
powers subject to the directions of that court, to do any one or more of the
following on behalf of the person against whom the restraint order has been
made, namely
i) “to perform any particular act in respect of any or all the property to which
the restraint order relates;
ii) to take care of the said property;
iii) to administer the said property; and
iv) where the said property is a business or undertaking, to carry on, with due
regard to any law which may be applicable, the business or undertaking;
(b) order the person against whom the restraint order has been made to
surrender forthwith, or within such period as that court may determine, any
property in respect of which a curator bonis has been appointed under
paragraph (a), into the custody of that curator bonis. ”
[30] I will refer to the three paragraphs in the restraint order that are relevant for the
determination of this application.
[31] Paragraph 12.2 of the restraint order require any person obliged to make
disclosure in terms of the Order to provide such further and specific information
as the Curator considers relevant to any fact which has been so disclosed.
[32] Paragraph 12.5 of the restraint order provided that the Curator had power and
authority “to pay expenses related to the reali sable property, which expense
would ordinarily be carried by the estate out of the realisable property. If no liquid
assets are available to the Curator to pay these expenses, the Curator will have
the power to sell assets under restraint, in consultation with the respective owner
of the realisable property under his control .” (my emphasis).
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[33] Paragraph 12.7 empowered and authorised the Curator to make enquiries from
the applicants’ as well as their respective accountants or auditors or attorneys
and pursuant to any such enquiries, inspect copy and analyse all relevant
documentation relating to the affairs of the applicants and any other entities in
which the applicants have an interest with a view of tracing such further reali sable
property.
[34] In Mngomezulu and Another v National Director of Public Prosecutions and
Another2 the appellants challenged the authority of a curator bonis appointed in
terms of section 28(1)(a) of POCA to alienate immovable property . The SCA held
that “I am of the view that a High Court may in terms of s 28(1)(a) authorize a
curator bonis appointed in terms of that section to alienate property under
restraint in order to properly administer the assets under his control.”
[35] The applicants’ counsel accepted that the correspondence referred to by the
respondent was omitted from the chronology of eve nts leading up to the urgent
application . She submitted that the omission was not deliberate and that her
instructions were that the counsel who prepared the papers did so based on the
information that was provided to him at the time . She submitted that even if the
applicants’ papers are not perfect , that the court can still come to the assistance
of the applicants if the court reason ed that an injustice would occur by not
granting the interim interdict . She submitted that the Curator was not justified in
trying to sell the “crown jewel ” of the family when the applicants’ indebtedness to
the municipality was disputed . She further submitted that the criminal trial is
setdown in the next two months and there is a possibility that th e applicants may
not be convicted in which instance they would have already lost the property .
She argued that the Curator had already waited for over two years already , since
his appointment . She reasoned that waiting for two more months for the criminal
trial to commence will not make any difference .
2 Mngomezulu v National Director of Public Prosecutions [2007] SCA 11 (RSA) at page 19.
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[36] While I note the assertion s about the importance of the property to the family ,
what remains unexplained is the failure of the applicants to meet with the Curator
to discuss the available means to save the property . It is also not explained why
the applicants had failed to furnish their attorneys with instructions regarding the
sale of the immovable property .
[37] I am of the view that the applicants ’ contention that the Curator had done nothing
in the past two years since the restraint order was granted is misplaced. The
Curator ’s report dated 11 July 2023 referred to by the respondents recorded that
the disclosure from the applicants was still outstanding . That there was no power
at the premises as power had been disconnected by the municipality due to
nonpayment . The Curator also reported that he had not found any liquid assets
in the estate to cover the mounting expenses. I’m of the view that the Curator
discharged his duty to consult the owners of the property .
Second point in limine – failure to comply with the provisions Section 26(7) of
POCA.
[38] This point was argued at length by the second respondent in amplification of the
submissions already made by the first respondent. The second respondent
averred that the applicants failed to compl y with section 27(1)(a) of POCA which
requires them to disclose under oath and in writing “a full description and location
of all the property, including the nature and source of any income or assets,
whether within or outside the Republic”. Th at their non -disclosure and their failure
to bring an application for living expenses in terms of section 26(6) of POCA,
compels the conclusion that the applicants have access to undisclosed financial
means which they have deliberately withheld from the first respondent.
[39] The respondents averred that the applicants are in contempt of the restraint order
by failing to comply with their disclosure obligations. They submitted that a party
who defies the remedial mechanism in the restraint order, is precluded from
seeking to interdict the Curator bonis from selling a restrain ed property while
continuing to withhold a true account of their financial affairs. Had they made the
disclosures , the Curator would have been in a position to assess whether there
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existed disposable income sufficient to sustain the ongoing costs associated with
the upkeep of the immovable property, and whether the alleged business
operations were viable. According to the second respondent this conduct was a
deliberate strategy to frustrate the administration of the restraint and hinder the
Curator from executin g his statutory fiduciary duties.
[40] The applicants’ counsel submitted that she did not have instructions as to
whether the applicants complied with the restraint order or not. She however
submitted that the Curator has powers and civil remedies of contempt should he
feel th e applicants have failed to comply with the court order. She submitted that
none of the remedies had been utilized to date .
[41] Even though I agree with the applicants ’ counsel that the legal remedy of
contempt of court order is available to the respondents, I am however of the view
that regardless of whether the Curator ha d instituted contempt proceedings
against the applicants , the applicants as the trustees of the Family Trust have a
fiduciary duty to act with honesty and good faith in dealing with the assets of the
Trust . The applicants ’ failure to make full disclosure of their financial interests
and their omission and/or the misrepresentation of material facts leading to this
urgent application should be taken into account in determining whether they are
entitled to an urgent relief.
Sufficient r edress in due course
[42] The Court held in East Rock Trading 7 (Pty) Ltd and Another v Eagle Valley
Granite (Pty) Ltd and Others3 that:
“The import thereof is that the procedure set out in rule 6(12) is not there for
taking. An applicant has to set forth explicitly the circumstances which he avers
render the matter urgent. More importantly, the Applicant must state the reasons
why he claim s that he cannot be afforded substantial redress at a hearing in due
course. The question of whether a matter is sufficiently urgent to be enrolled and
3 East Rock Trading 7 (Pty) Ltd and Another v Eagle Valley Granite (Pty) Ltd and Others (11/33767) [2011]
ZAGPJHC 196 (23 September 2011) at para 6 - 8
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heard as an urgent application is underpinned by the issue of absence of
substantial redress in an application in due course. The rules allow the court to
come to the assistance of a litigant because if the latter were to wait for the
normal course laid do wn by the rules it will not obtain substantial redress.
…Applicant has to explain the reasons for the delay and why despite the delay
he claims that he cannot be afforded substantial redress at a hearing in due
course. I must also mention that the fact the Applicant wants to have the matter
resolved urgently doe s not render the matter urgent. The correct and the crucial
test is whether, if the matter were to follow its normal course as laid down by the
rules, an Applicant will be afforded substantial redress. If he cannot be afforded
substantial redress at a hea ring in due course then the matter qualifies to be
enrolled and heard as an urgent application. If however despite the anxiety of an
Applicant he can be afforded a substantial redress in an application in due course
the application does not qualify to be enrolled and heard as an urgent
application. ”
[43] The applicants claim that they will not be afforded sufficient redress at a hearing
in due course is premised on their belief that at the close of the tender on 30 May
2025 the successful bidder will take full ownership of the property . This is
however a mistaken belief as it is clearly stated in the advertisement and
conditions of sale that the acceptance of any offer remains subject to a further
21-day period within which the seller is entitled to accept or reject the offers . The
applica nts have not even approached the Curator to discuss the viability of selling
the movable assets as per their contention in their papers that there are sufficient
movable properties that could be sold in order to preserve the immovable
property . I am of the view that the claim that the y will no t be afforded sufficient
redress cannot succeed when the applicants refuse to take the first step which
could lead to the resolution of the matter.
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Conclusion
[44] It is clear from the facts of the matter that applicants did not comply with rule
6(12)(b) which requires an applicant to set out the circumstances rendering the
matter urgent . The applicants were unable to explain the delay in instituting these
proceedings as early as April 2024 or alternatively from 09 October 2024 when
the Curator unequivocally informed them of his intention to proceed with the sale.
The applicants ignored the notice and brought the urgent application less than
two weeks before the close of public tender . The applicants failed to satisf y the
court that they will not get substantial redress at a hearing in due course. Their
failure to co -operate with the Curator and their failure to comply with their
disclosure obligations in terms of section 2 6(7)(a) bar them from approaching
urgent court for assistance while they have failed to comply with their obligations
under a lawful restraint order and frustrated the administration process. I
therefore find that the urgency relied upon by the applicant s was self -created and
that the claim for urgency should fail.
Costs
[45] The respondents sought a punitive cost order on the scale between attorney and
client against the applicants as well as their attorney of record , jointly and
severally based on the following grounds:
45.1 That the applicants made false and misleading representations to the Court and
omitted material correspondence which constitutes a deliberate abuse of court
process .
45.2 That the applicants ’ attorney actively participated in an obstructive strategy to
conceal possible assets that are subject to a restraint order under POCA by
refusing to comply with a reasonable request for information made under a valid
court order thereby obstructing the administration of justice under the guise of
legal privilege .
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[46] Punitive costs orders against legal representative are awarded in exceptional
circumstances where it is clear from the papers that the legal representative
conducted himself in a manner which grossly deviate from the standard expected
of a legal practitioner . In Multi -Links Telecommunications Ltd v Africa Prepaid
Services Nigeria Ltd; Telkom SA Soc Limited and Another v Blue Label Telecoms
Limited and Another4 the Court held th e following:
“Legal practitioners must present their case fearlessly and vigorously, but always
within the context of set ethical rules that pertain to them, and which are aimed
at preventing practitioners from becoming parties to a deception of the court. It
is in this context that society and the courts and the professions demand absolute
personal integrity and scrupulous honesty of each practitioner. ”
[47] What is clear from the facts of this case is that the Curator requested information
relating to the financial affairs of the applicants , the mandate agreement for legal
services rendered and whether there were any funds held in tr ust by the
attorneys on behalf of the applicants. In response to the Curator , the attorney
stated that the restraint order d id not authorise the curator to investigate the
attorney and client documents . It does not appear from the papers whether there
were any further engagements with the Curator on this issue. The attorney stated
that if the Curator wants to challenge the mandate of the attorney, he must follow
Uniform r ule 7 route.
[48] The question is whether this information is enough for such a n adverse order
against the legal representative, I do not agree. I am of the view that more
information is required including submissions from the legal practitioner
concerned for such a finding to be made . Certainly , that exercise is beyond the
issues before me for adjudication. It is important to note that the se are not
contemp t of court proceeding against the applicants for their failure to comply
with their disclos ure obligations . The non-disclosure is only relevant as far as to
the determination of whether the applicants have made a case for urgent relief
or not. The full merits of the case will be determined at the hearing in due c ourse
4 Multi -Links Telecommunications Ltd v Africa Prepaid Services Nigeria Ltd; Telkom SA Soc Limited and
Another v Blue Label Telecoms Limited and Another [2013] 4 All SA 346 (GNP) para [ 34 - 35]
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after the applicants have filed their replying affidavit. I am therefore not satis fied
that a case is made for a cost order against the attorneys.
[49] With regard to the applicants, I am satisfied that a punitive cost order is justified .
This is not because they are unsuccessful on urgency but because of the
misleading statements made under oath and unexplained omission of material
facts which I agree with the respondents that they go to the heart of this urgent
application. The integrity of the court process needs to be respect ed.
Misrepresentation of facts to induce a certain outcome in a matter should be
frowned upon as it constitutes an abuse of the court process which the applicants
cannot be excused from.
[50] In the result, I make the following order :
1. The application is struck off the roll for lack of urgency.
2. The applicants are ordered to pay the respondents ’ costs on an attorney
and client scale.
______ ______ _
JL Bhengu
Acting judge of the High Court
Mbombela Main Seat
Appearances
For the Applicant s: Adv Z Gumede
Instructed by JF Shabangu Attorneys
Email: felicia@ifshabanguattorneys.co.za
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For the First Responden t: Adv P Sieberhagen
Instructed by Crouse Incorporated
Email: johan@crouseinc.co.za
For the Second Respondent: Adv NN Pisane
Instructed by the State Attorney , Mbombela
Email: SJVanDerWalt@npa.gov.za
Date of hearing: 27 May 2025
Date of Judgment: 18 June 2025