SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISIO N, CAPE TOWN )
Case number: 2025 -080510
In the matter between:
HUBERT PAUL FLEISCH ADENDORFF N.O.
(trustee for the time being of the Adendorff Trust (IT
11635/99)
and
SAVREZ TRADING (PTY) LTD
Applicant
First respondent
JAMES OPENSHAW ZERVAS
Second respondent
REASONS DELIVERED ON 9 JULY 2025
VAN ZYL AJ :
Introductio n
1. On 11 June 2025 I granted the following order in the urgent court:
1. The respondents’ application for a postponement is dismissed.
2. The applicant’s application is dealt with as urgent in accordance with
the provisions of Rule 6(12), and the applicant’s non -compliance with
regular service, notices, and timelines is condoned.
3. Pending the final resolution of arbitration proceedings to be instituted
by the first respondent within 30 (thirty) days from the date of this
order:
3.1. It is declared that the applicant [having paid to the trust account
of DELBERG ATTORNEYS the amount of R1 500 000.00 (one
million five hundred thousand rand)], has provided sufficient
substituted security for an alleged builders’ lien exercised by the
first respondent over the immovable property described as 1 [...]
H[...] Street (Erf 1[...]), Springfield, Somerse t Lakes Estate,
Somerset West, Western Cape Province (“the property”).
3.2. The continuous duration of the substituted security is conditional
upon punctual compliance by the first respondent with the
following procedural and substantive matters:
3.2.1. The applic ant and the first respondent must, within 7
(seven) days from the date of this order, reach an
agreement regarding the person to be appointed as
arbitrator. If no agreement can be reached, then: -
a) after the lapse of 7 (seven) days, but within 10
(ten) days from date of this order, the first
respondent must request the President for the time
being of the South African Institute of Architects
(“SAIA”) to nominate 2 (two) suitably qualified
arbitrators who must have at least 10 (ten) years’
experience as arbitrators; and
b) Miltons Matsemela Attorneys (“MMA”), with
contact person Izak Venter, must within 3 (three)
days from the date of the nomination referred to in
subparagraph (a) select one of the arbi trators
nominated by the SAIA to serve as arbitrator.
c) In the alternative to sub -paragraphs (a) and (b),
and if the SAIA or MMA is unwilling, unable or non -
responsive to nominate or select (as the case may
be) an arbitrator as set out above within a period of
3 (three) days after having been requested to
nominate or select (as the case may be) then,
within 3 (three) days after such failure to nominate
or select (as the case may be) the first respondent
must request the Chairperson of the Cape Bar
Council to nominate 2 (two) suitably qualified
arbitrators with at least 10 (ten) years’ experience
as arbitrators; and
d) MMA, with contact person Izak Venter, must within
3 (three) days from date of the nomination referred
to in sub -paragraph (c) select one of the arbitrators
nominated by the Chairperson of the Cape Bar
Council to serve as the arbitrator.
3.2.2 The first respondent must make initial payment of fees
and costs which may be payable to the arbitrator, on
demand, for purposes of instituting the arbitra tion.
3.2.3 The first respondent must serve and file its Statement of
Claim in the arbitration within 30 (thirty) days from the
date of this order.
3.2.4 The applicant (through its attorneys of record, Delberg
Attorneys) must be copied into, and receive copies of, a ll
correspondence and documents submitted to all of the
individuals or entities referred to in paragraphs 3.2.1,
3.2.2 and 3.2.3.
3.3 If the first respondent fails to comply with any timelines or dates
or other requirements as set out in paragraph 3.2 (in cluding all
sub-paragraphs) (or such extended dates as the parties may
agree upon), then the applicant shall be released from the
security set in the amount of R1 500 000.00 (one million five
hundred thousand rand) and Delberg Attorneys shall be entitled
to make payment of said amount to an account nominated by
the applicant.
4. The first respondent is ordered, within 2 (two) days from the date of this
order, to:
4.1 remove its security guard(s)/employee(s)/agent(s) stationed at
the property, and hand over and grant unrestricted possession
of and access to the property to the applicant; and
4.2 provide the applicant with all keys, access control equipment,
and related items and devices required for access to the
property.
5. In respect to the further conduct of the arbitration proceedings and
following compliance with paragraphs 3 and 4 (including all sub -
paragraphs):
5.1. The applicant must file its Statement of Defence and
Counterclaim (if any) within 15 (fifteen) days after receipt and
filing of the first respond ent’s Statement of Claim.
5.2. The applicant and the first respondent must hold a pre -
arbitration conference with the appointed arbitrator within 10
(ten) days after the close of pleadings, failing which either party
may request the arbitrator to nominate a date and time suitable
to the arbitrator for when the pre -arbitration conference will take
place. At such pre -arbitration conference the parties must agree
on the further timelines for the conduct of the arbitration and,
failing agreement, the arbitrator must appoint such dates.
6. If the first respondent fails to comply with any timelines or dates or
other requirements for and in relation to the effective management of
the arbitration, as set out in paragraph 5 and/or as may be agreed to
between the parties and/or as determined by the arbitrator, then the
applicant may request the arbitrator formally to consider and issue an
interim award or notice recording such non -compliance and the effect
thereof, whereafter the applicant shall be released from the security set
in the amount of R1 500 000.00 (one million five hundred thousand
rand), and Delberg Attorneys shall be entitled to make payment of said
amount to an account nominated by the applicant.
7. The respondents, jointly and severally, the one paying, the other to be
absolved, shall pay the applicant’s costs in the urgent application, as
well as the costs of the respondents’ application for postponement, on
the scale as between attorney and client. These costs will include the
costs consequent upon the employment of both senior and j unior
counsel on behalf of the applicant, as well as travelling and
accommodation costs .
2. These are , briefly, the reasons for the grant of the order.
3. The applicant trust has one trustee, and I refer to the applicant
interchangeably as “it” or “he”.
The respondents’ application for postponement
4. The application was instituted on 30 May 2025 and served on the
respondents vi a email on the same day.1 Late in the afternoon before the
hearing of the application, the respondents caused an application for
postponement to be emailed to the applicant. The Court was provided with a
copy on the morning of the hearing.
5. Having heard argument and having considered the matter , I concluded in the
exercise of my discretio n that a postponement should not be granted. There
are many authorities dealing with postponement applications. Suffice it to say
that the responden ts’ applicatio n was far removed from the standard set out in
Myburgh Transport v Botha t/a SA Truck Bodies :2
“1. The trial Judge has a discretion as to whether an application for
a postponement should be granted or refused .
2. That discretion must be exercised judicially. It should not be exercised
capriciously or upon any wrong principle, but for substantial reasons.
…
5. A Court should be slow to refuse a postponement where the true reason for
a party's non -preparedness has been fully explained, whe re his unreadiness
to proceed is not due to delaying tactics and where justice demands that he
should have further time for the purpose of presenting his case.
6. An application for a postponement must be made timeously, as soon as the
circumstances which might justify such an application become known to the
applicant. Where, however, fundamental fairness and justice justifies a
postponement, the Court may in an appropriate case allow such an
application for postponement, even if the application was not so timeously
made.
7. An application for postponement must always be bona fide and not used
1 It was also served by the Sheriff on the second respondent on 30 May 2025 and on the first
respondent on 2 June 2025.
2 1991 (3) SA 310 (NmS) at 314G -315I.
simply as a tactical manoeuvre for the purposes of obtaining an advantage to
which the applicant is not legitimately entitled.
8. Considerations of prejudice will ordinarily constitute the dominant
component of the total structure in terms of which the discretion of a Court will
be exercised. What the Court has primarily to consider is whether any
prejudice caused by a postponement t o the adversary of the applicant for a
postponement can fairly be compensated by an appropriate order of costs or
any other ancillary mechanisms.
9. The Court should weigh the prejudice which will be caused to the
respondent in such an application if the postponement is granted against the
prejudice which will be caused to the applicant if it is not.
10. Where the applicant for a postponement has not made his
application timeously, or is otherwise to blame with respect to the procedure
which he has followe d, but justice nevertheless justifies a postponement in the
particular circumstances of a case, the Court in its discretion might allow the
postponement but direct the applicant in a suitable case to pay the wasted
costs of the respondent occasioned to suc h a respondent on the scale of
attorney and client. …”
6. In the application, the respondents f ailed to give an adequate explanation for
their failure to deliver opposing papers to the main application. They made
bald averments that the second respondent was in Australia, had to attend to
his son's golf tournament, had meetings, and had to collect his daughter from
school in the afternoons. It was further alleged that the respondents were
unable to provide their attorneys with financial instructions sooner, but they
nevertheless attached a payment confirmation from a South African bank
account. Notably, they f ailed to disclose any defence to the relief sought in
the main application , other than making a n unsubstantiated allegation that the
applicant was seek ing to pierce the corporate veil.
7. The respondents had been aware of the pending application for ten days .
They had legal represent ation. No proper explanation was given for the
failure to act sooner. The application for a postponement had the hallmarks of
an attempt to delay the proceedings. No good or strong reasons were
provided in support of the request for a postponement , and no full and
satisfactory explanati on was given of the facts that gave rise to the
application. As postponement applications go, it was vague and sketchy, and
the supporting affidavit had not been properly commissioned as contemplated
in the Justices of the Peace and Commissioners of Oaths Act 16 of 1963 .
8. The respondents did not tender the costs that would be occasioned by the
suggested postponement.3
9. The prejudice that the applicant was suffering in not having access to and
possession of his property far outweighed any prejudice to be suffered by the
respondents in proceeding with the matter. As appears from what is set out
below on the merits of the main application, the respondents’ lien over the
property was sufficiently secured by the amount of R1,5 million held in trust.
The resp ondents said that they wanted the dispute giving rise to the exercise
of the lien (whatever that dispute might be, as the respondents had not told
either the Court or the applicant what it entailed) resolved by arbitration, but
failed to take any steps to commence with arbitration proceedings. The
applicant was compelled to ask the Court to make an order in that respect ,
which was done .
10. The respondents gave no indication at all as to what the nature of their
defence to the applicant’s claims would be, or what the disputes were that
supported the respondents’ lien over the property .4 There was thus nothing
upon which the Court could exercise it discretion to conclude that it would be
in the interests of justice to delay the hearing of the application. There was
nothing upon which to consider that the postponement would not simply be
kicking the ball to another judge who would have to deal with the same
3 Shilubana and others v Nwamitwa 2007 (5) SA 620 (CC) para 12: “A standard way to mitigate
prejudice to other parties is for the party asking for the court’s indulgence to postpone a
hearing – particularly one requested at the last minute – to offer, or to be ordered, to pay the
costs of the postponement. ”
4 T.A.M -W v C.M.M [2025] ZAWCHC 217 (23 May 2025) para 3: “Tellingly however, and
contrary to clear Constitutional Court authority (the highest court in South Africa), and despite
the respondent having devoted 21 paragraphs to his rea sons for requesting a postponement,
nowhere did he provide even a brief outline of his defence to the contempt application itself,
save for a bare denial… ”
situation a week down the line.
11. I accordingly refused the postponement application.
The main application
12. A residential immovable property situated in Somerset West is at the core of
these proceedings. The disputes between the parties have been ongoing for
a period of almost two years. The present application is the fourth one that
the applicant has been compelled to institute against the respondents in
relation to the property . The second respondent has at all relevant times been
the first respondent’s sole director and representative.
13. In July 2023 the parties concluded two written agreements, in terms of which:
13.1. The applicant purchased the property from the first respondent for the
sum of R999 500,00; and
13.2. The parties concluded a building agreement in terms of which the first
respondent would construct a dwelling on the property for the sum of
R1 500 500,00.
14. The applicant has paid the sum of R2 205 451,50 to the first respondent
pursuant to the conclusion of the agreements .
The previous litigation between the parties
15. During 2024 it came to the applicant’s attention that the first respondent had
sold the property to a third party, despite the existence of the agreements and
the fact that the applicant has paid the purchase price in full). In March 2024
the applicant therefore instituted an urgent application to interdict the transf er
of the property to the third party. The parties agree d to the terms of an order
at the time,5 in terms of which the first respondent would repay the applicant
the amount paid under the agreements, and costs, failing which the transfer of
the property would be interdicted.
16. The first respondent failed to comply with the terms of the order, and in
September 2024 the applicant instituted an urgent application and obtained
an order6 to compel the first respondent to comply with the terms of the
agreements and to obtain registration of transfer of the property. The balance
outstanding under the agreem ents, namely R294 548,50 , was paid into the
applicant’s attorneys’ trust account pending the completion of the building
work on the property .
17. The first respondent again failed to comply with the order and failed to have
the property transferred into the a pplicant’s name. It also came to the
applicant's knowledge that the first respondent had allowed unknown third
parties to take occupation of the property
18. The applicant therefore instituted an urgent contempt application which was
set down for 10 February 2025 . The parties, once again, agreed to the terms
of an order7 in terms of which the first respondent would comply with the order
in accordance with a specified timeline. The respondents were o rdered to give
notice to the occupants to vacate the property by 30 April 2025.
19. The property was transferred into the applicant's name on 5 May 2025.
The events leading up to the present application
20. On 29 April 2025 the applicant's attorneys wrote to the respondents' attorney
to inform the respondents that the applicant would be taking possession of the
property once transfer had been given, and that the parties should meet at the
property on 2 May 2025 to compile a detailed list of all buildings works not yet
5 Granted on 19 March 2024 under case number 4914/2024.
6 Granted on 10 September 2024 under case number 11573/2024.
7 Granted on 10 February 2025 under case number 11573/2025.
completed.
21. The applicant attended the pro perty on 2 May 2025 (before transfer , and
without a response from the respondents or their attorney ) to view the
property. The occupants who should have vacated by the end of April 2025
were still in occupation of the property. They informed the applicant that they
had been told by the respondents that they c ould remain in occupation of the
property until their own property (also being built by the first respondent in the
estate) was complete.
22. Whilst at the property the applicant noticed worrisome electri cal connectio ns.
He could not gain access to the inside of the property to see what the
situation was.
23. On 6 May 2025 the respondents’ attorney replied to the applicant’s attorneys’
correspondence of 29 April 2025. He said that, according to the first
respondent, the applicant was indebted to the first respondent in the sum of
R1 467 000 ,00 (being R500 00 0,00 in respect of variation orders issued,
R592 000 ,00 in respect of enlarging the structure , and R375 000 ,00 in respect
of VAT on the purchase price) . The first respondent accordingly ha d a
builder's lien over the property and , until payment was received, the first
respondent would enforce the lien and refuse the applicant access to the
property .
24. This correspondence came as a shock to the applicant, because the first
respondent ha s never previously mentioned or demanded payment in any
amount, or indicate d that the applicant would not be granted possession and
control of the property because of f unds that were owing. The applicant trust
denies t hat it is indebted to the first respondent in any of the amounts claimed .
25. In terms of the building agreement (which the applicant subsequently
cancelled), any dispute in respect of monies owed must be resolved by way of
arbitration . This provision survive d the cancelled agreement.
26. On 8 May 2025 the applicant’s attorneys wrote to the respondents’ attorney ,
confirming that the applicant disputes any indebtedness to the first responden t
and that the lien is disputed, but that the applicant had nonetheless paid the
sum of R1.5 million into his attorneys ’ trust account to serve as security for
any amounts that the first respondent may be entitled to upon arbitration.
27. On 15 May 2025 the applic ant’s attorneys wrote to the respondents’ attorney
again , and attached proof of payment of the R1.5 million into their trust
account. They confirmed that the amount was formally tendered to serve as
security for any amount which may be due to the first re spondent upon
arbitration.
28. On 20 May 2025 the respondents’ attorney replied that the first respo ndent
was not obliged to accept the substituted security and w ould not waive its
alleged lien over the property . He stated that the first respondent would
institute arbitration proceedings . The first respondent stationed a guard at the
proper ty, preventing access thereto by the applicant or any third party.
29. On 22 May 2025, the applicant cancelled the building agreement (after
demand was made to comply) given that the building works were incomplete
and posed serious safety concerns . It transpired that the necessary
completion certificates had not been issued in respect of the electrical
installation, the plumbing, the roof structure, and other aspects, a nd the
municipality had not issued an occupancy certificate . The applicant was
unable to insure the property until an occupancy certificate ha d been issued .
In fact, o n 13 May 2025 and again on 19 May 2025 the building inspector for
the area wrote to the applicant , stating that no occupancy certificate had been
issued, that a building inspector would be sent to the property and , should
there be a transgression, the owner (being the applicant) would be served
with a notice to comply. It appears that the r espondents had been informed of
this situation during February 2025 already.
30. On 16 May 2025 the building inspector inspected the property . In
correspondence dated 26 May 2025 the municipality confirmed that no
occupancy certificate would be issued until amended building plans had been
submitted – the dwelling had therefore not been constructed in accordance
with the approved plans. A transgression notice was issued to the applicant
on 3 June 2025 because the property was being occupied unlawfully in the
absence of an occupancy certificate. It was confirmed that the continued
occupation without the certificate constitute d a criminal offence .
31. The applicant subsequently obtained a report from an expert to the effect that
the electrical installations at the property d id not comply with the relevant
regulations, present ed an immediate danger of electrocution, fire , or serious
property damage, was unlawful and had to be decommissioned immediately.
32. As the property ha d already been transferr ed to the applicant, the risks and
responsibilities in respect there of rested on the applicant. He could not
mitigate such risks as he had no access to the property.
33. The applicant's trustee is 75 years old , and the applicant purchased the
property as a re tirement dwelling. His previous residential dwelling was sold in
April 2025 and he was living with a friend, with his furniture in storage. He
cannot afford alternative accommodation, given that R1.8 million (the security
tendered plus the balance owing un der the building agreement) is in his
attorneys’ trust account. He has already spent more than R800 000 ,00 in legal
fees, combating what appears on the papers to be frankly abusive conduct by
the respondents .
34. Given the historical conduct of the respondents in respect of the property, I
agreed with the submission by counsel for the applicant that the respondents
– for an unexplained reason - wished to delay the applicant taking possession
of the property for as long as possible. There was no reason not to grant the
relief sought by the applicant.
35. Where a debtor/creditor or enrichment lien i s claimed (the respondents have
not indicated the nature of the lien upon which they rely),8 and sufficient
security has b een tendered,9 there exist s no basis for the respondents to
continue retaining occupation of the property, whether physically or otherwise,
such as by denying access through a guard at the property. This C ourt ha d a
discretion10 to grant access and occupation to the applicant, and to cause the
security to be preserved pendente lite :
“[20] It follows that the conclusion reached in the Bombay Properties case,
that in the case of a jus retentionis based on an enrichment lien the court
does not have a discretion to deprive the lien holder of his possession or that
the substitute security f or such a lien would be meaningless, is clearly wrong.
The Sandton Square Finance case made it clear that the court does have a
discretion in respect of an enrichment lien. Quite clearly once it is established
that a court has a discretion in relation to a debtor/creditor lien, there is no
reason why such a distinction should not extend to the enrichment lien. On
appeal counsel for Pheiffer did not persist with the argument that the
approach in Sandton Square was wrong. It would consequently be untenable
to allow substitution of security in the one case (debtor/creditor lien) but not in
the other (enrichment li en).
[21] The principle articulated in the Sandton Square Finance case is sound
and based on considerations of equity and justice. I do not agree with the
contention that the security tendered by the third respondent is meaningless.
In my view once Pheiffe r has fully quantified and proved his claim, he will be
entitled to payment in respect of the improvements to the property. As soon
as sufficient security has been tendered, Pheiffer has no basis to continue
occupying the property. As the court below right ly held, he must vacate the
property .”11
36. This t ook care of the declarator y relief sought , which was a necessary
8 See Blair Atho ll Home Owners Association (NPC) v Meyer and another [2023] ZAGPPHC
2055 (22 December 2023) para 31, with reference to Sandton Square Finance (Pty) Ltd v
Vigliotti 1997 (1) SA 826 (W) and Pheiffer v Van Wyk 2015 (5) SA 464 (SCA).
9 In the present matter, security was tendered in an amount greater than the amount claimed,
with proof that it has been paid into an attorney’s trust account.
10 Astralita Estates (Pty) Ltd v Rix 1984 (1) SA 500 (C) at 503B -E.
11 Pheiffer v Van Wyk 2015 (5) SA 464 (SCA) paras 20 -21. Emphasis supp lied.
pronouncement for the ancillary orders sought relating to access and control,
but also occupancy , which an owner with a real right is entitled to even
without establishing irreparable damage, inconvenience , or the lack of
alternative remedies - typically in the nature of a rei vindicatio.
37. The chronology of events is clear from the facts set out above. I agreed that
the application was s ufficiently urgent for hearing on the urgent roll. There
was an ongoing violation of the applicant’s rights,12 and the respondents had
not given any indication of a desire speedily to resolve the issues between the
parties – not even at the hearing of the application.
38. The terms of the order to be granted were debated during argument. The
only real opposition raised by the respondents ’ counsel was the potential
prejudice to the respondents should the applicant’s attorneys be permitted to
release th e substituted security to the applicant in the event that the
respondent s did not comply with the timeframes for instituting and prosecuting
the arbitration proceedings. No objection was raised to the amount of the
substituted secur ity or to its holding in the applicant’s attorneys’ trust account
pending the finalisation of the arbitration proceedings , or to the suggested
timeframes . The relief sought by the applicant was therefore changed13 to
reflect that the arbitrator would decide whether the respondents had breached
the terms of the court order, and not the applicant or his attorneys.
Costs
39. The applicant was successful, and the re was no reason why costs should not
follow the event.14
40. In Public Protector v South African Reserve Bank15 the Constitutional Court
stated as follows in relation to punitive costs orders:
12 See South African Breweries (Pty) Ltd v Minister of Corporative Governance and Traditional
Affairs and Another [2021] 4 All SA 189 (WCC) paras 15 -16; 22 -23.
13 Further minor amendments were made to the reliefs sought in the notice of motion.
14 See Sackville West v Nourse and a nother 1925 AD 516.
15 2019 (6) SA 253 (CC) para 223. Emphasis supplied.
“More than 100 years ago, Innes CJ stated the principle that costs on an
attorney and client scale are awarded when a court wishes to mark its
disapproval of the conduct of a litigant. Since then this principle has been
endorsed and applied in a long line of cases and remains applicable. Over
the years, courts have awarded costs on an attorney and client s cale to mark
their disapproval of fraudulent, dishonest or mala fides (bad faith)
conduct; vexatious conduct; and conduct that amounts to an abuse of
the process of court .”
41. An extended meaning was given to the concept of “vexatious” in
Johannesburg City Council v Television and Electrical Distributors (Pty) Ltd
and another :16
“ … in appropriate circumstances the conduct of a litigant may be adjudged
‘vexatious’ within the extended meaning that has been placed upon this term
in a number of decisions, that is, when such conduct has resulted in
‘unnecessary trouble and expense which the other side ought not to bear (In
re Alluvial Creek 1929 CPD 532 at 535) .”
42. I was inclined to grant costs on the scale as between attorney and client given
the conduct of the respondents which caused the institution of the se
proceedings, and the nonchalant manner in which they treated the litigation
between them and the applicant .
Order
43. In the circumstances , I granted the order referred to at the outset of these
reasons.
____________________
16 1997 (1) SA 157 (A) at 177D.
P. S. VAN ZYL
Acting Judge of the High Court
Appearances:
For the applicant : Mr J. Roux SC and Ms S. Bosch, instructed
by Delberg Attorneys Inc.
For the respondents : Mr D. Whitcomb, instructed b y RC Smith &
Associates Inc.