SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy

THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG

Case 2025-025807
(1) REPORTABLE: No
(2) OF INTEREST TO OTHER JUDGES: No
(3) REVISED: Yes
8 March 2025

In the matter between:

T[…] S[…] S[...] First Applicant

N AND C MAINTENANCE AND Second Applicant
SPARES (PTY) LTD

and

FIRST NATIONAL BANK OF SA First Respondent
LIMITED t/a FNB

S[…] S[...] Second Respondent


JUDGMENT


DU PLESSIS J

Introduction

[1] The first applicant ( "Ms S[...]") and second respondent ( "Mr S[...]") are in the
process of divorce. They are also co-directors of the second applicant , […] and […]
M[…] and S[…] (Pty) Limited ("the company") and co- signatories of the company 's
bank accounts with the first respondent, First National Bank (“FNB”), which Ms S[...]
seeks to unfreeze. Ms S[...] (and the company) seek an order declaring FNB 's
conduct in freezing the bank accounts unlawful and directing their immediate
unfreezing.

[2] Ms S[...] also seeks interdictory relief against Mr S[...], prohibiting him from
making false accusations and statements to FNB about the first applicant 's dealings
with the second applicant (a so-called gagging order).

Urgency
[3] Ms S[...] and the company assert that this matter is urgent. The company
must comply with its contractual obligations towards service providers, employees,
and customers. The frozen accounts, they submit , will lead to financial and
reputational ruin, which cannot be undone later. Ms S[...] also cites household
financial obligations that require immediate attention.

[4] FNB does not oppose the urgency of the matter and abides by this Court 's
decision.

[5] Mr S[...], however, submits that any urgency is self-created, asserting that the
Ms S […] was aware of the account freeze from 4 February 2025 but only
approached the Court on 22 February 2025.

[6] Mr S […] further contends that alternative funding sources were available to
the applicants, making the need for urgent relief less compelling. Part of the reason
he sought to freeze the FNB account was the fact that large sums of money were
transferred to an Investec Bank account (which is not frozen), without Ms S[...]
providing substantive documentation for these transactions. He thus claims that Ms
S[…] can use that money to make payments and that there is no imminent crisis.

[7] After launching this urgent application, Mr S[...]' s attorneys sent a letter to the
applicant's attorneys with a "with prejudice " proposal, proposing a solution to the
problem of having to make payments from a frozen account. That includes
appointing Mr S[...] as a co-signatory to the bank accounts, as was agreed upon in a
Shareholders' Agreement in January 2025. Additionally , both directors must
authorise transactions to ensure proper corporate governance and prevent unilateral
withdrawal of funds – the reason for the freezing of the accounts. Once this is in
place, the parties can approach the bank to uplift the freeze.

[8] The applicants made an application to have this letter struck out, submitting
that it is privileged
1 from disclosure even if the letter itself said "with prejudice" and
Mr S[...] indicated that it will be attached to the answering affidavit.

[9] Ms S[...]'s attempt to strike the respondent's "with prejudice" offer from the
record is misplaced. A "with prejudice" offer is not subject to the same restrictions as
a "without prejudice" communication, which is privileged and requires the consent of
both parties for disclosure. By making the offer "with prejudice," Mr S[...] intentionally
placed it on record as an open and admissible offer upon which he is entitled to rely.
He is not disclosing an offer from Ms S[...]; it is his own offer. As was confirmed in
Agnew v Union and South West Africa Insurance Co Ltd,
2 a "with prejudice" offer is,
by its very nature, an open offer that the offeror allows to be referred to in
proceedings. The letter will thus not be struck.

[10] This offer also provides an alternative remedy, which undermines the urgency
of the application. The applicant has a viable solution outside of an urgent court
order: implementing the agreed- upon governance mechanisms and then
approaching the bank to unfreeze the account. Urgency cannot be based solely on

approaching the bank to unfreeze the account. Urgency cannot be based solely on
self-imposed limitations, especially when the respondent has made a good faith offer
in line with a previous agreement that removes the need for immediate court
intervention. The matter thus stands to be struck from the roll for lack of urgency.

1 Absa Bank Limited v Hammerle Group (Pty) Ltd [2015] ZASCA 43 par 13.
2 1977 (1) SA 617 (A) , see also Van Der Westhuizen v Akarana Homeowners' Association [2023]
ZAWCHC 220.

[11] I am compelled to address the applicant's contention that Mr S[...] resigned
from the company, because he sent an email to that effect in January, as this links to
the issue of authorisation to deal with the company's finances . His purported
resignation was not genuine and unequivocal, as his subsequent actions indicate
otherwise. Instead of severing all ties with the organisation, he continued to engage
in its affairs, maintain an active role in decision- making, and interact with key
stakeholders as though still in office, with the knowledge of Ms S[...] . His name is still
on the company's stationary and used in communications. This conduct is
inconsistent with a bona fide resignation. Without a clear severance from the role
and responsibilities, Mr S […]’s claim to have resigned is contrived and lacks legal
effect.

[12] Lastly, the request for an interdict against Mr S[...] to prevent further alleged
defamatory statements is not legally sustainable. While the right to dignity and
reputation is constitutionally protected, defamation is ordinarily remedied through
damages, not an interdict .
3 Courts only grant prior restraint orders in exceptional
cases where the statements are clearly false, malicious, and likely to cause
irreparable harm. 4 The applicant has not demonstrated such exceptional
circumstances. Absent clear, demonstrable falsehoods causing irreparable harm, a
pre-emptive restriction on speech is unjustified.

[13] Consequently, the interdict application thus stands to be struck from the roll
with costs for lack of urgency.

Order
[14] The following order is made:
1. The application to strike out is dismissed.
2. The matter is struck from the roll for lack of urgency , with costs to be
taxed on scale B.

3 See Herbstein J, et al The Civil Practice of the High Courts and the Supreme Court of Appeal of
South Africa. 5th ed. Juta; 2009 chapter 44 page 1475.

South Africa. 5th ed. Juta; 2009 chapter 44 page 1475.
4 National Media Ltd v Bogoshi 1998 (4) SA 1196 (SCA); Midi Television (Pty) Ltd v Director of Public
Prosecutions (Western Cape) 2007 (5) SA 540 (SCA).

WJ du Plessis
Judge of the High Court
Gauteng Division, Johannesburg


Date of hearing:

4 March 2025
Date of judgment:

8 March 2025

For the applicants:

K Kabinde instructed by Ndlovu Lindiwe
Attorneys Inc
For the first respondent:

Peterson instructed by Glvoer
Kannieappan Inc
For the second respondent: D Goosen instructed by Scalco Attorneys