REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG

Case Number: 2025- 061204
Appeal Case Number: A2023- 063349
Consolidated Case Number: 2816/2017

(1) REPORTABLE: YES / NO
(2) OF INTEREST TO OTHER JUDGES: YES/NO
(3) REVISED: YES/NO
In the matter between:
MERCHANT COMMERCIAL FINANCE 1 (PTY) LTD t/a MERCHANT FACTORS
Plaintiff

and

HLANTINI MANAGEMENT AND FINANCE (PTY) LTD First Defendant

BLUE CLOUD INVESTMENTS 79 (PTY) LTD Second Defendant

CROSS ATLANTIC PROPERTIES 136 (PTY) LTD Third Defendant
DALHOUSIE FORESTS CC Fourth Defendant

GRANT HUGH RAMSAY Fifth Defendant

HIGH LANDS SECURITIES (PTY) LTD Sixth Defendant

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HLATINI FARMING (PTY) LTD Seventh Defendant
HLATINI FINANCE CORPORATION (PTY) LTD Eighth Defendant
HLATINI INVESTMENT HOLDINGS LIMITED Ninth Defendant
HLATINI MANAGEMENT AND FINANCE (PTY) LTD Tenth Defendant
LAGOON HOMES (PTY) LTD Eleventh Defendant
MOGWALA TRADING 154 (PTY) LTD Twelfth Defendant
NCY TADE & INVEST (PTY) LTD Thirteenth Defendant
STAND 827 MARLBORO PARK (PTY) LTD Fourteenth Defendant

RST TRADE & INVEST (PTY) LTD Fifteenth Defendant
TRIBAL PROPERTIES (PTY) LTD Sixteenth Defendant
HORIZ ION INVESTMENT TRADING (PTY) LTD Seventeenth Defendant
AND

Case Number: 2816/2017
In the matter between:
TRIBAL PROPERTIES (PTY) LTD First Applicant
CROSS ATLANTIC PROPERTIES (PTY) LTD Second Applicant
LAGOON HOMES (PTY) LTD Third Applicant
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STAND 827 MALBORO PARK (PTY) LTD Fourth Applicant
HORIZION INVESTMENT TRADING (PTY) LTD Fifth Applicant
and
MERCHANT COMMERCIAL FINANCE (PTY) LTD First Respondent
GRANT HUGH RAMSAY Second Respondent
HLATINI MANAGEMENT AND FINANCE (PTY) LTD Third Respondent
BONATLA PROPERTIES (PTY) LTD Fourth Respondent
NIKITAS GHIKAS VONTOS Fifth Respondent

THE REGISTAR OF DEEDS Sixth Respondent
THE CIPC Seventh Respondent
AND

Case No: 34887/2016
In the matter between:
MERCHANT COMMERCIAL FINANCE 1 (PTY) LTD t/a MERCHANT FACTORSApplicant
and
THE BEVTEC PARTNERSHIP Respondent

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JUDGMENT


CRUTCHFIELD J

[1] The applicant s are the joint liquidators of Horizon Investment Trading PTY
(Ltd) (in liquidation), seek urgent relief interdicting the respondent , Merchant
Commercial Finance 1 (PTY) L td t/a M erchant Factors , from alienating ,
hypothecating, encumbering, executing and otherwise dealing with various identified
immovable properties (“the properties”) .

[2] The applicant seeks interim relief pending finalisation of an application in
terms of rule 49(6) together with the applicant’s appeal.
[3] The respondent opposes the application on both urgency and the merits of the
application.
[4] In order to find success in the application, the applicant must meet the
peremptory requirements of rule 6(12). I deal with the alleged urgency of the
application.

[5] The applicant alleges that on 9 April 2025, the applicant received
correspondence from the respondent’s attorneys informing the applicant’s attorneys
that the appeal had lapsed and that the respondent intended disposing of the properties.

[6] In terms of the procedures necessary to procure a date for the hearing of an
appeal, the applicant was obliged to apply for such a date on or before 6 September
2023. The applicant failed to do so resulting in the alleged lapse of the appeal and
the necessity for the applic ant to launch an application for reinstatement of the
appeal in terms of rule 49(6) .

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[7] Prior to 6 September 2023, the Supreme Court of Appeal granted the
applicant leave to appeal on 16 May 2023, after which the applicant delivered its
notice of appeal and heads of argument timeously.
[8] Thereafter, for some 20 months, the applicant did nothing to prosecute the
appeal.
[9] The applicant ’s attorneys refer to an “oversight” in its offices, alleg ing that a
succession of different staff members dealing with the m atter overlooked the
necessity to apply for a hearing date. T hus, as at 9 April 2025, the applicant had not
yet applied for a date for the hearing of the appeal. The applicant’s attorneys contend that the applicant should not be held responsible for an oversight in the office of the applicant’s attorneys.
[10] The alleged oversight relates to an absence of steps taken by the attorneys for
a period of approximately 20 months including, by way of example, a failure to consider the file, contact the Appeals Registrar’s office, enquire at the court and
update the client. An absence of any steps taken over a period of approximately 20
months does not amount to a mere oversight or an error. Similarly to the matter of
Colyn v Tiger Food industries Ltd t/a Meadow Feed Mills (Cape)
1, it is not a simple
matter of an error or an oversight when nothing happens on a matter for
approximately 20 months. The explanation by the applicant ’s attorneys for their
failure is lacking substantially.

[11] On 14 April 2025, the applicant launched an application for condonation and
reinstatement of the lapsed appeal. The respondent’s attorneys refused a request to
for an undertaking that the respondent not dispose of the properties in the interim ,
pending the finalisation of the application in terms of the r ule 46(9) and the appeal.
[12] Given the applicant’s attorney ’s failure to take steps to procure a date for the
hearing of the appeal for approximately 20 months, the respondent’ s attorneys
refused the requested undertaking.

1 Colyn v Tiger Food industries Ltd t/a Meadow Feed Mills (Cape) 2003 (6) SA 1 (SCA) at [9].
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[13] The applicant’s notice of motion is dated 30 April 2025 and the applicant
delivered the application to the respondent’s attorneys by email on Wednesday,
30 April 2025, at 18h13. The application was set down for hearing before me on
20 May 2025.
[14] The respondent referred to the requirements in respect of an explanation in
condonation proceedings as set out in Van Wyk v Unitas Hospital and Another.
2 The
applicant’s explanation for its failure to apply for a date for the hearing falls far short
of the requirements of a request for condonation.

[15] By way of example, t here is no explanation whatsoever as to why the
applicant’s attorneys failed to enquire from the Appeals Registrar as to whether a
date had been allocated or why a date had not yet been allocated or when the matter
would be heard. The applicant’s attorneys were content to sit supine for
approximately 20 months and do nothing in respect of the appeal.

[16] As regards he applicant’s attempt to find fault with the respondent’s attorneys
for not having applied for a date, the r ules provide that the respondent “may” apply
for a date but there is no obligation on the respondent to do so. The respondent is
not dominus litis and is free to sit back and wait for the appeal to lapse, in the event
that the applicant allows it to do so.
[17] In respect of the averment that the applicant should not be held responsible
for the failure on the part of the applicant’s attorneys to take the appropriate steps to
prosecute the appeal, it is striking that in the approximately 20 month- period at issue
before me, there is no mention of even a single enquiry from the applicant to their
attorneys enquiring about the appeal.

[18] Whilst I accept that the applicant , prior to September 2023, intended to
prosecute the appeal and took the necessary steps to do so, subsequent ly, the
applicant ’s attorneys took no steps in respect of prosecuting the appeal. The

2 Van Wyk v Unitas Hospital and Another 2008 (2) SA 472 (CC) .
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applicant and the applicant’s attorneys did nothing in respect of the appeal for a
significant duration.

[19] Furthermore, the applicant does not articulate why it will not achieve
substantial redress in respect of this application, at a hearing in due course. Given
recent changes to the setting down of matters on the opposed motion roll, dates on
that roll are more easily and expeditiously available than they were previously. This
factor must be considered together with the time necessary f or the sale and transfer
of immovable property to be effected, a notoriously lengthy procedure. The applicant
does not set out why this application cannot be dealt with and the applicant receive
substantial redress at a hearing on the opposed motion roll in the ordinary course.
[20] Furthermore, the order s of Fischer J in respect of which the applicant appeals
relevant to this application, are the dismissal of the application for a postponement
and the order entitling the respondent to execute against the properties. Fischer J
granted the latter order, permitting the respondent to execute against the properties ,
by default of appearance of the applicant, counsel for the applicant having withdrawn
subsequent to the dismissal of the postponement application.
[21] Accordingly, the respondent argued before me that the Supreme Court of
Appeal’s grant of leave to appeal c ould only relate to Fischer J’s refusal to grant the
request for a postponement and not to the order for execution against the properties ,
granted by default of appearance. An application for leave to appeal is not
competent against an order granted by way of default as such an order is capable of
being revisited by the court a quo and may sustain an application for rescission.
Thus , the order for execution against the properties granted by way of default is not
a final order and cannot sustain an appeal.
3

[22] In Pitelli, the SCA found that orders that are susceptible to rescission are not
appealable.4


3 Franceso Pitelli v Everton Gardens Project CC [2010] ZASCA 35 (29 March 2010) (“Pitelli”).
4 Pitelli id [36].
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[23] Moreover , I find that the applicant failed to meet the requirement in terms of
rule 6(12)(b), being that it does not demonstrate that it cannot obtain substantial
redress at a hearing in the ordinary course. This requirement is peremptory and
absent the applicant meeting this requirement, the matter does not qualify to be
enrolled and determined as a matter of urgency.

[24] In the circumstances the application stands to be struck from the roll for the
absence of urgency.
[25] There is no reason why the costs of the application should not follow the order
on the merits including the costs of counsel on scale C. [26] By virtue of the abovementioned, I grant the following order:
1. The application is struck from the roll for a lack of urgency.
2. The applicant is ordered to pay the costs of the application including
the costs of counsel on scale C.

CRUTCHFIELD J
JUDGE OF THE HIGH COURT
JOHANNESBURG
For the App licant : Adv M Nowitz instructed by Hirschowitz Flionis Attorneys .
For the Respondent : Adv S McTurk instructed by Brink, De Beer & Potgieter
Attorneys .
Date of the hearing: 22 May 2025.
Date of the judgment: 18 June 2025.