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IN THE HIGH COURT OF SOUTH AFRICA
(NORTHERN CAPE DIVISION, KIMBERLEY)
Case No: 990/2025
Reportable: YES / NO
Circulate to Judges: YES / NO
Circulate to Regional Magistrates: YES / NO
Circulate to Magistrates: YES / NO
In the matter between:
MELISSA MARLENE JAPHTA First Applicant
ZECHA JV ROSSTECH XEROX (PTY) LTD Second Applicant
and
SEPHIRI ERNEST MOSALA First Respondent
CHARLES ALFRED ROSSOUW Second Respondent
ROSSBURG INDUSTRIAL ENTERPRISES
(PTY) LTD t/a ROSSTECH XEROX Third Respondent
FIRSTRAND BANK LTD t/a FNB BANK Fourth Respondent
STD BANK OF SA LTD t/a STANDARD
BANK Fifth Respondent
ZECHA HOLDINGS (PTY) LTD Sixth Respondent
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THE DEPARTMENT OF EDUCATION,
NORTHERN CAPE Seventh Respondent
CAPITEC BANK Eighth Respondent
In re:
ZECHA JV ROSSTECH XEROX (PTY) LTD First Applicant
SEPHIRI ERNEST MOSALA Second Applicant
CHARLES ALFRED ROSSOUW Third Applicant
ROSSBURG INDUSTRIAL ENTERPRISES
(PTY) LTD t/a ROSSBERG XEROX Fourth Applicant
and
ZECHA HOLDINGS (PTY) LTD First Respondent
MELISSA MARLENE JAPHTA Second Respondent
FIRSTRAND BANK LTD t/a FIRST
NATIONAL BANK Third Respondent
STD BANK OF SA t/a STANDARD BANK Fourth Respondent
Heard: 1 July 2025
Delivered: 1 July 2025
Summary: Urgent interlocutory application. Fear of dissipation of funds into a
new bank account when the r/n issued on 17 APRIL 2025 makes provision for the
original bank account to be frozen until such time as the matter is ventilated properly
on 25 JULY 2025.
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ORDER
The following order is made:
1. The application is dismissed with costs.
EX TEMPORE JUDGMENT
MAMOSEBO, J
1. The applicants approached this court on an urgent basis seeking the
following relief:
That this interlocutory application be heard as an urgent matter as
contemplated in Rule 6(12) of the Uniform Rules of the Court. That pending
finalization of the main application under Case Number 990/2025 and Part B
of this application, that this Court should order that the appointment of the
first and second respondents as directors of the second applicant at an
alleged shareholders meeting held on 17 April 2025 be suspended; that all
the payments made by the 7 th respondent arising from the Service Level
Agreement between the second applicant and the 7 th respondent be paid
into the second respondent’s bank account number 0[...] and that the bank
account number 3[...] of the second applicant be placed on hold pending the
final determination of the main application.
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2. This Court was approached on urgency by the applicants who in their papers
contend that if they are not heard on an urgent basis and this court not grant
them the relief they are seeking, they may not be afforded substantial
redress should the matter be heard in the normal course. Coupled with this
aspect of urgency the first to third respondents, who, I should also point out
are the only opposing parties in this application at this stage, is the challenge
to the applicants’ locus standi in judicio.
3. The submissions in sum by Mr Mongala, for the applicants, are the following:
3.1 The applicants have third parties with rights and interests who solely
depend on funds deposited by the Department of Education, cited as
the 7th respondent, in compliance with the Service Level Agreement
(SLA). Although such services continue to be rendered the
applicants are asking the court to place on hold the money deposited
by the 7th respondent pending the determination of the issues or until
the matter is fully ventilated on 25 July 2025. The applicants’ fear
which informed the urgency is the dissipation of the money if it is
deposited into a different account than that furnished by the
applicants. The new bank account was opened by parties whose
rights are yet to be determined in the main application. Should the
funds be dissipated the contract with the 7 th respondent may be at
stake. It is contended on behalf of the applicants that the first
applicant has a prima facie right though subject to doubt, but the
second applicant has a clear right. Should funds be dissipated, the
applicants stand to suffer irreparable harm. The balance of
convenience favours the granting of the relief to the applicants as
prayed for.
3.2 On the aspect of locus standi , in the first applicant’ s founding
affidavit she stated that she is a businesswoman , a director, for all
intends and purposes, Zecha JV Rosstech Xerox (Pty) Ltd. In the
papers she maintains that she is the sole director and, although the
papers she maintains that she is the sole director and, although the
issues pertaining to shareholding and directorship are deferred to the
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main case to be heard on 25 July 2025, she maintains that she was
not properly removed as contemplated by the Companies Act.
4. The submissions in sum by Mr Olivier, for the first to third respondents is the
following:
4.1 The applicants lack locus standi and have not satisfied the
requirements for urgency. The SLA is between the 7 th respondent
and the Zecha JV (the second applicant). On 17 April 2025 the court
ordered the freezing of the bank account that the applican ts are
asking this court to order that the money must be deposited into. An
amount of R4 million is frozen in that account. The new account was
opened in the second applicant’s name to enable the services to be
rendered and for service providers to continue to be paid. The
applicants have neither explained how the money would be swindled
or dissipated nor the anticipation of irreparable harm. Redress would
be afforded by this court on 25 July 2025 when the main application
will be heard and therefore the urgency is unfounded.
4.2 The first applicant was removed as a director on 17 April 2025 and
did nothing. She could have filed a counter -application seeking relief
but has failed to do so. The first applicant has not challenged her
removal in court and it is only on 25 July 2025 where the issues of
directorship and shareholding would be fully ventilated. Until then,
she has no standing to approach the court.
5. The principles relating to urgent applications are trite. The leading case in
this regard is Luna Meubel Vervaardigers (Edms) Bpk v Makin and Another
1977 (4) SA 135 (W). A court would dispense with the normal forms and
service as contemplated in the Uniform Rules of Court if the applicant
demonstrates that it would not be afforded substantial redress should the
matter be heard in the normal course.
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6. It is apposite to refer to the remarks by Flemming DJP, with which I align, in
Gallagher v Norman’s Transport Lines (Pty) Ltd 1992 (3) SA 500 at 502H –
503A where the Court said:
‘But the intent of the Rules is that such amendment is permissible only in
those respects and to that extent which is necessary in the particular
circumstances. I use the word 'necessary' in its ordinary signification, but
naturally in relation thereto that evidence shows 'real loss or disadvantage if
he is compelled to rely solely on the normal procedure'. The Court is
enjoined by Rule 6(12) to dispose of an urgent matter by procedures 'which
shall as far as practicable be in terms of these Rules'. That obligation must of
necessity be reflected in the attitude of the Court about which deviations it
will tolerate in a specific case.
…The mere existence of some urgency cannot therefore justify an applicant
not using Form 2(a) of the First Schedule to the Uniform Rules. The rules do
not tolerate the illogical knee -jerk reaction that, once there is any amount of
urgency, that form of notice of motion may be jettisoned - and often that a
rule nisi may be sought. The applicant must, in all respects, responsibly
strike a balance between the duty to obey Rule 6(5) and the entitlement to
deviate, remembering that that entitlement is dependent upon and is thus
limited according to the urgency which prevails.’
7. The applicants have the responsibility to explicitly set forth in the founding
papers the circumstances which render this application urgent and the
reason why they claim they will not be afforded substantial relief in the
hearing in due course. I pause to mention that the main application has
already been set down to 25 July 2025. I am not persuaded that the
applicants have satisfied this requirement, and it follows that th e application
on urgency cannot be sustained.
8. The fact that the first applicant was removed from office and a determination
8. The fact that the first applicant was removed from office and a determination
of the lawfulness of her status as director would only be made once the
issues have been fully ventilated in July 2025, at this stage, the applicants, in
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my view, hold no standing to launch this application. Their piecemeal
approach of dealing with issues is deprecated by the courts. Substantial
redress is around the corner, 25 July 2025, there is no justification for having
brought this application on an urgent basis.
9. On the question of costs. There is no reason why costs should not follow the
result.
10. In the result, the following order is made:
1. The application is dismissed with costs.
MC MAMOSEBO
JUDGE OF THE HIGH COURT
NORTHERN CAPE DIVISION
Obo the Applicants: Adv. J. Mongala
On instruction of: Taylor Inc.
Obo 1st to 3rd Respondents: Adv. A.D Olivier
On instruction of: Engelsman, Magabane Inc.