REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
Case Number: 2023- 028928
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED : YES
1 August 2025
DATE SIGNATURE
In the matter between:
THE NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS
and
LESETJA DAVID MOGOTLANE
THOMAS DUMASI MARIMA
PIETER JOHANNES JACOBS
MAMOHUBA HELEN MODIBA
TSHEPO EDWIN MODIKWE
SEJABATI CYNTHIA MODIKWE
J Vorster, AJ.
JUDGMENT
Applicant
10th Defendant
11th Defendant
34th Defendant
35th Defendant
36th Defendant
12th Respondent
1

2

[1] On 28 April 2023, the applicant obtained a provisional restraint order in terms
of section 26 of the Prevention of Organised Crime Act, 121 of 1998, against
71 defendants and 12 respondents. The provisional order has since been
confirmed against most of these defendants and respondents, except those
listed in the headnote above.

[2] On Monday, 28 July 2025, when the matter was called, Mr Hills appeared on
behalf of the 34
th defendant and informed me that his client was no longer
opposing the confirmation of the provisional restraint order. Mr Wilson, who
appeared for the applicant, confirmed this arrangement. As such, my order at
the end of this judgment will confirm the order against the 34
th defendant.

[3] In addition, the provisional order will also be confirmed against the 11
th and 35th
defendants, who did not take part in the proceedings, and who do not oppose
the confirmation of the provisional order.

[4] In respect of procedure, I mention that the application was not argued on
Monday, 28 July, but stood down for argument on Thursday, 31 July 2025. As
a motion court roll is a continuous roll, and as the application merely stood down
(it was not postponed), it remained enrolled before me and there was no need
to extend the provisional restraint order – it remained operative.

[5] There is a dispute between the parties as to what exactly serves before me.
The applicant contends that it is the extended return date of the provisional
restraint order, whilst Mr Sekwakeng, who appear ed for the 10
th and 36 th
defendants and the 12th respondent (the opposing parties), submitted that his
clients’ application to compel compliance with a rule 35(12) and (14) notice
served before me.

[6] The opposing parties have never filed answering affidavits in the main restraint
application. Instead, on 11 October 2023, they delivered a notice in terms of
uniform rule 35(12) and (14) calling on the applicant to make available a large

uniform rule 35(12) and (14) calling on the applicant to make available a large
number of documents for their inspection. The applicant failed to respond to

3

this notice, and on 23 November 2023, the opposing parties launched an
application to compel compliance with their rule 35(12) and (14) notice. After
doing so, the opposing parties took no further steps to prosecute this application
to finality.

[7] It appears that the applicant initially failed to respond to the application to
compel, but that at some stage earlier in 2025 uploaded an opposing affidavit.
When the matter came before me, the opposing parties contended that the
opposing affidavit was never served on their attorney of record, and that they
only recently became aware thereof. The applicant’s counsel conceded that the
state attorney was unable to produce evidence of service.

[8] Under these circumstances, counsel for the opposing parties, Mr Sekwakeng,
submitted that the application should be removed from my roll so that the
opposing parties could file their replying affidavit.

[9] I was unwilling to accede to this request. My unwillingness is the result of my
view that there is, in truth, no proper application to compel capable of being
removed from the roll, and that to allow an application that cannot succeed to
be removed or postponed will result in a waste of judicial resources.

[10] I asked Mr Sekwakeng to identify the specific rule on which the application to
compel was based. He was, understandably, unable to do so. To understand
my findings, it is necessary to briefly reflect on rule 35(12) and the judicial
pronouncements dealing with a failure to comply with this rule.

[11] Rule 35(12) provides as follows:


“(a) Any party to any proceeding may at any time before the hearing thereof
deliver a notice in accordance with Form 15 in the First Schedule to any
other party in whose pleadings or affidavits reference is made to any
document or tape recording to -

4

(i) produce such document or tape recording for inspection and to
permit the party requesting production to make a copy or
transcription thereof; or
(i) state in writing within 10 days whether the party receiving the
notice objects to the production of the document or tape
recording and the grounds therefor; or
(iii) state on oath, within 10 days, that such document or tape
recording is not in such party’s possession and in such event to
state its whereabouts, if known.
(b) Any party failing to comply with the notice referred to in paragraph (a)
shall not, save with the leave of the court, use such document or tape
recording in such proceeding, provided that any other party may use
such document or tape recording.”

[12] What is apparent, is that rule 35(12) does not have its own sanction for non-
compliance. However, a defaulting party may be compelled to comply by means
of a rule 30A application.
1 In Caxton and CTP Publishers and Printers
Limited v Novus Holdings Limited,2 the Supreme Court of Appeal confirmed
this approach as follows:

“However, 'a party who gives notice under rule 35(12) may not be content with
just the negative sanction provided by the rule'. So said Ponnan JA in Centre
for Child Law v The Governing Body of Hoërskool Fochville and Another, who
went on to state that '[i]n that event it is to rule 30A that such a party must turn'.”

[13] The opposing parties’ application to compel is not an application in terms of rule
30A. It was also not preceded by a rule 30A notice.

[14] In Centre for Child Law v Hoërskool Fochville and Another,
3 the following
relevant findings in respect of the purpose of court rules, and a failure to bring
an application within the ambit of a specific rule, was made:

1 Machingawuta and Others v Mogale Alloys (Pty) Ltd and Others 2012 (4) SA 113 (GSJ) at [2] – [8].
2 2022 JDR 0431 (SCA) at [20].
3 2016 (2) SA 121 (SCA) at [17].

5


“In general terms, the rules exist to regulate the practice and procedure of the
courts. Their object is to secure the 'inexpensive and expeditious completion of
litigation before the courts' and they are not an end in and of themselves.
Ordinarily, strong grounds would have to be advanced to persuade a court to
act outside the powers provided for specifically in the rules. Here, having given
notice in terms of rule 35(12) that has not been complied with, it was for the
School to give notice in terms of rule 30A that it intended, after the lapse of 10
days, applying for an order that its rule 35(12) notice be complied with. That
the School did not do. Nor did it apply to court in terms of rule 30A to compel
production of the documents sought. That, in and of itself, may have been fatal
to the application (see Universal City Studios v Movie Time 1983 (4) SA 736
(D)). In Universal City Studios Booysen J was urged, despite the fact that the
procedure laid down in rule 30(5) (the predecessor to rule 30A) had not been
followed, to nevertheless order compliance with the rule 35(12) notice. He
declined, stating that -

'a party who deliberately chooses not to claim relief of a particular
nature, should in general, even if it were competent, not be granted
such relief under the general prayer of alternative relief'.”
4

[15] In my judgment, the opposing parties’ application to compel is not catered for
in the rules. The rules do not provide for a general or generic application to
compel. On this basis alone, the application to compel is irregular and should
be dismissed. If I were to remove the application from my roll, the result w ould
be that a different court will be seized with an application that is not recognised
in the uniform rules. Saddling a different court with such an application will
amount to a waste of scarce judicial resources.

[16] The opposing parties had sufficient time to prepare answering affidavits. It is

[16] The opposing parties had sufficient time to prepare answering affidavits. It is
well established that a notice in terms of rule 35(12) does not interrupt the time
for the filing of a subsequent affidavit. This principle was confirmed in Caxton

4 Footnotes omitted from the quoted passage.

6

and CTP Publishers and Printers Limited v Novus Holdings Limited, 5
where the following was said:

“[84] Finally, it is necessary to deal with Caxton's quest to be afforded
sufficient time within which to file its replying affidavit in the main
application. It goes without saying that Caxton's replying affidavit is
considerably long overdue. Caxton deliberate ly elected not to file its
replying affidavit pending the outcome of its application to compel the
production of the documents it sought from Novus.

[85] There is nothing in the language of rules 35(12) and 30A to suggest that
once a demand has been made for the production of the documents to
which the rule 35(12) notice relates, the party seeking such documents
is excused from complying with the timeframes prescribed in terms of
Uniform Rule 6(5)(d)(ii) [66] or 6(5)(e), [67] as the case may be. In
Potpale Investments (Pty) Ltd v Mkhize, [68] Gorven J rightly observed
that the delivery of a notice in terms of rule 35(12) or (14) does not
suspend the period referred to in rule 26 or any other rule. Whilst there
is much to be said for the view expressed by the learned Judge, sight
should however not be lost of the fact that it is open to the court, in the
exercise of its discretion, to extend the time periods prescribed in terms
of the rules whenever a proper case therefor has been made out by the
party seeking such indulgence. Indeed, this is what Uniform Rule 27
itself contemplates.

[86] It is as well to remember that the manifest purpose of discovery is, as
was stated in Durbach v Fairway Hotel, Ltd, 'to ensure that before trial
both parties are made aware of all the documentary evidence that is
available. By this means the issues are nar rowed and the debate of
points which are incontrovertible is eliminated'. Accordingly, discovery
assists the parties and the court in discovering the truth, and, in doing
so, helps towards a just determination of the case. This also saves
costs.

so, helps towards a just determination of the case. This also saves
costs.

5 2022 JDR 0431 (SCA). Footnotes omitted from the quoted passages.

7


[87] As the time for the delivery of Caxton's replying affidavit has long come
and gone, it made perfect sense therefore for Caxton to ask for leave to
deliver its replying affidavit only once it has had the opportunity to
inspect and copy the documents that No vus is required to produce in
terms of this judgment. And given the voluminous nature of the
documents involved, it is eminently reasonable and fair that it be
afforded a reasonable period within which to do so. This will be reflected
in the order mad e below. Similarly, it is only fair that Novus should be
afforded a reasonable period of time within which to produce the
documents sought. This, too, is catered for in the order below
.”

[17] The application to compel, even if it was regarded as a proper application, does
not include an order to condone the late filing of answering affidavits. The time
for filing answering affidavits lapsed in 2023 already.

[18] During argument, the opposing parties’ counsel submitted that my views in
respect of the application to compel, and the possible dismissal of the
application for procedural reasons, would amount to judicial overreach. In this
regard, he invited my attention to the judgment in Van Der Nest NO v Minister
of Police,
6 where the following was said:

“[21] It is trite that courts adjudicate issues outlined by the parties in their
pleadings, as was found by this Court in Fischer and Another v
Ramahlele and Others. It is for the parties to identify the dispute and for
the court to determine that dispute and that dispute alone. In some
cases, the parties may expand the issues for determination by the way
they conduct the proceedings. In others, the court may, mero motu,
raise a question of law that emerges fully from the evidence and is
necessary for the decision of the case, subject to the proviso: no
prejudice will be caused to any party by its being decided.


6 2025 JDR 1489 (SCA).

8

[22] It is, however, also trite that a court can also raise an issue mero motu
where: raising it is necessary to dispose of the matter, and it is in the
interests of justice to do so, which depends on the circumstances at
hand. Where a point of law is apparent on the papers, but the common
approach of the parties proceeds on a wrong perception of what the law
is, a court is not only entitled but is in fact also obliged, mero motu, to
raise the point of law and require the parties to deal with it.”


[19] I am also mindful of what was said in Magistrates Commission and Others v
Lawrence,7 concerning the function performed by a Judge when adjudicating
matters:

“At the outset it may be important to restate certain basic tenets: (i) in exercising
the judicial function, judges are themselves constrained by the law; (ii)
judgments should be confined to the issues before the court; (iii) courts should
avoid deciding matters that are not relevant; (iv) it is not for a court to create
new factual issues; and (v) courts must distinguish between allegation, fact and
suspicion.”

[20] In my judgment, the difference between the approach that I adopt, and what
was referred to in Van Der Nest and Lawrence, is that the issue that I raised
concerns procedure, and not the substance of the application. Put differently: I
am enforcing the uniform rules – nothing more.

[21] In my judgment, the application to compel must be dismissed for procedural
reasons, and the application to confirm the provisional restraint order against
the opposing parties must therefore proceed on an unopposed basis.

[22] In respect of the restraint application, I am satisfied that the requirements in
sections 25 and 26 of the Prevention of Organised Crime Act, 1998, have been
met. In this regard, there is pending criminal prosecution against the

7 2022 (4) SA 107 (SCA) at [78].

9

defendants, there are reasonable grounds to believe that a confiscation order
may be granted, and the criminal proceedings have not been concluded.

[23] In respect of costs, it must follow the event, and the opposing respondents will
be ordered to pay the costs of the application to compel and also the costs
incurred by the applicant to have the order against them confirmed. Such costs
to be taxed on scale B.

[24] Consequently, the following order is made:

[24.1] The 10th and 36th defendants’ and the 12th respondent’s, application to
compel compliance with the notice in terms of rule 35(12) and (14) dated
11 October 2023 is dismissed with costs, such costs to be taxed and
paid on scale B.
[24.2] The provisional restraint order issued in terms of section 25 of the
Prevention of Organised Crime Act, 121 of 1998 , on 28 April 2023, as
extended from time to time, is hereby confirmed and made final against
the 10th, 11th, 34th, 35th and 36th defendants, and the 12th respondent.
[24.3] The 10th and 36th defendants, and the 12th respondent, shall jointly and
severally pay the applicant’s costs occasioned by the proceedings to
have the provisional restraint order against them confirmed, such costs
to be taxed on scale B.


J VORSTER, AJ.
Acting Judge of the High Court

Date heard: 31 July 2025.
Judgment date: 1 August 2025.

Appearances:
For the applicant (NDPP):
Counsel: J Wilson
Instructed by: State Attorney

10


For the 34th defendant:
Appearance: J Hills (attorney)
Attorney: Hills Attorneys Inc.

For the 10
th and 36th defendants and 12th respondent:
Counsel: MD Sekwakeng
Instructed by: Abram Madira Attorneys Inc.