OFFICE OF THE CHIEF JUSTICE
IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
Case NO: 22132/2024
REPORTABLE: NO
OF INTEREST TO OTHER JUDGES: NO
In the matter between:
CAREL ARON VAN DER MERWE APPLICANT
and
MAGISTRATE BLAAUW N.O. FIRST RESPONDENT
MAGISTRATE GEA JACOBS N.O. SECOND RESPONDENT
DEON MARIUS BOTHA N.O. THIRD RESPONDENT
JOCHEN ECKHOFF N.O. FOURTH RESPONDENT
PHILIMON TATENDA MAWIRE FIFTH RESPONDENT
THE LAND AND AGRICULTURAL SIXTH RESPONDENT
DEVELOPMENT BANK OF SOUTH AFRICA
MASTER OF THE HIGH COURT SEVENTH RESPONDENT
Coram: Slingers J et Kholong, AJ
Date of hearing: 4 August 2025
Date of judgment: 25 August 2025
JUDGMENT
KHOLONG AJ
Introduction
[1] The applicant has filed an application for leave to appeal against the
judgement and orders of this Court delivered on 23 May 2025. The backgro und to
the main application is set out in the judgment and need not be repeated herein.
[2] The applicant, now appearing in person, seeks leave to appeal in terms of
section 17(1)(a)(i) and (ii) of the Superior Courts Act.
[3] The application for leave to appeal is opposed by the 3rd to 6th respondents.
Grounds of Appeal
[4] In bringing the application for leave to appeal, the applicant submits that the
Court erred in law and fact thereby prejudicing the applicant, creditors, and public
interest by failing to uphold the rule of law thereby violating the applicant’s section 9
constitutiona l right to equality, and section 33 right to just administrative action.
[5] In a nutshell, the applicant attacks:
(i) the Court’s directive that the Rule 30 application would be heard with
the main application;
(ii) the Court’s refusal of the condonati on application for the late bringing
of the rtule 30 application;
(iii) the Court’s refusal to grant the informal application for a postponement
of the hearing of the main application; and
(iv) This court’s assessment of the main application in dismissing it.
[6] The applicant argues that this court’s refusal of his application resulted in an
infringement of his constitutional right to equality; right to just administrative action
and to a fair public hearing.
[7] The applicant was legally represented thr oughout the hearing, with his legal
representatives electing not to participate in the proceedings when their request for a
postponement was denied. It must be emphasized that the applicant’s legal
representatives did not withdraw as his legal representat ive and remained on record
but that they simply left the court and elected not to participate further in the
proceedings.
[8] Had the applicant’s legal representative withdrawn, the court would have had
to consider the applicant’s right to legal represent ation. However, in the
circumstances of this matter that did not arise.
[9] The election of the applicant’s legal representative not to participate in the
proceedings pertaining to the main application was a manipulative ploy to engineer a
postponement after it was refused by the Court and borders on an abuse of the court
process.
[10] The court’s refusal to postpone the hearing does not amount to a violation of
the applicant’s constitutional rights to equality, nor right to a fair hearing or to just
administrative action.
[11] The applicant argued that the Court erred when it failed to consider the
alleged conflict of interest which resulted from a trustee and creditor in the insolvent
estate having the same legal representative. The applicant also rep eated these
arguments presented at the hearing (prior to him and his legal representatives
walking out) but failed to show why the Court erred in finding as it did.
[12] The applicant equally complains that the Court left some matters
undetermined and rai se as illustration the argument that the court did not deal with
the point raised by respondents on his locus standi nor determine prayer 5 and 6 in
the notice of motion. This argument is without foundation. Applicant had been
granted interim relief by thi s court on 8 November 2024 thereby accepting his locus
standi as insolvent to launch this application. More importantly, respondents did not
pursue this line of argument during the hearing on the return date. This argument by
applicant is thus superfluous.
[13] Similarly, the argument that the court, whilst it noted prayer 5 and 6, did not
decide this question thereby raising an error is without foundation on the facts and in
law. Rule 6(1) prescribes that every application shall be brought on notice of moti on
supported by an affidavit as to the facts upon which the applicant relies for relief. It
was held in Reynolds1 that the facts must be set out simply, clearly and in a
chronological sequence, and without argumentative matter, in the affidavits which
are filed in support of the notice of motion.
[14] Prayer 5 in the notice of motion deals with a request for an order “that the
order of court issued…by the second respondent on 24 May 2024 be declared
invalid and be set aside”. Prayer 6 requested that “..the decisions taken at the first
meetings and second meetings of creditors including all decisions to postpone the
said meetings of creditors, the resolutions passed, and the subpoenas issued, be
declared invalid and be set aside”.
[15] It is trite per auth ority in R v Dhlumayo 2, that judgements can never be all
embracing and therefore that just because something was not mentioned specifically
in the judgement, does not mean it was not considered. Schreiner JA in Dhlumayo
noted that where an appellate court is not satisfied that the verdict appealed from is
noted that where an appellate court is not satisfied that the verdict appealed from is
wrong, but is seriously dissatisfied with the treatment of issues of fact in the
judgement supporting the verdict, it must be a question of degree whether the flaws
in the judgement, coupled with appellate court’s doubts as to the correctness of the
1 Reynolds NO v Mecklenberg (Pty)Ltd 1996(1) SA 75 at 781.
2 R v Dhlumayo and Another 1948 (2) SA 677 (A) at 702.
verdict, are such as to require the appeal to be allowed. On the facts foreshadowed
above, this court would think not.
[16] Appeals lie in any event against the substantive order of the court, not the
reasons or lack thereof for the judgement as held in Cape Empowerment Trust 3
[17] Paragraph 24 of the main judgement which applicant seeks leave to appeal
states that despite applicant’s Counsel decision to excuse himself, this court had
been left with “the paper s” and respondent to consider his papers and assessing the
merits of the application and defense. The court went on to point out that it will
consider “the applicant’s version from his affidavit and the evidence on the papers”. It
goes without saying that an affidavit is in support of the relief or prayers sought in the
notice of motion. Paragraphs 24 to 47 of the judgement proceeds to summarize and
consider submissions made with reference to applicable law on applicant’s reasons
to have the following set a side as set out in the notice of motion: 1 st and 2nd meeting
of creditors; the decisions made in those meetings and the directions made by 3 rd
respondent per prayer 5 and 6 in the notice of motion. This court in giving its
judgement on the relief applicant sought, pointedly prayer 5 and 6, at paragraph 47
stated as follows “This court thus concludes that the main application falls to be
dismissed”. The main application was about prayers 1 to 8 in the notice of motion.
[18] The argument therefore that th e court did not determine prayers 5 and 6 is
thus misplaced on the facts and in law for the reasons foreshadowed above. In any
event even if there was doubt, which there isn’t, this court’s order makes it plain per
paragraph 52 of the judgement with its or der that applicant’s “application dated 14
October 2024 is dismissed”. The dismissal of the application logically and as a
matter of common sense includes prayers 5 and 6 with the reasons set therein for
matter of common sense includes prayers 5 and 6 with the reasons set therein for
refusing to set aside the meetings and as a corollar y, decisions made therein, as
stated in the judgement.
The Law
3 Cape Empowerment Trust Limited v Fisher Hofman Sithole 2013 (5) 183 (SCA) at 1981 -J.
[19] Section 17(1) of the Superior Courts Act4 reads:
“(1) Leave to appeal may only be given where the judge or judges concerned
are of the opinion that –
(a)(i) the appeal would have a reasonable prospect of success; or
(ii) there is some other compelling reason why the appeal should be heard,
including conflicting judgements on the matter under consideration”.
[20] The Supreme Court of Appeal in Notshokovu5 noted th at an appellant faces
a higher and stringent threshold in terms of the Act compared to the provisions of the
repealed Supreme Court Act 59 of 1959 . Whilst Erasmus in its commentary
observed that this remark by the SCA was obiter dictum as far as it possibl y relates
to section 17(1)(a)(i), it is significant that the Notshokovu remark was applied in
applications for leave to appeal under section 17(1)(a)(i) of the Act in Mtungwa v
Premier of Kwazulu -Natal6, Talhado Fishing Enterprises (Pty) Ltd v Firstrand
Bank Ltd t/a First National Bank 7 and Mombeeg (Pty) Ltd v Eskom Rotek
Industries SOC Ltd8.
[21] In MEC for Health, Eastern Cape v Mkhitha 9 the Supreme Court of Appeal
held that leave to appeal, especially to that court must not be granted unless there
truly is a reasonable prospect of success. The Court noted in this judgement that the
Superior Courts Act makes it clear that leave to appeal may only be granted where
the judge concerned is of the opinion that the appeal would have a reasonable
prospect of success or there is some other compelling reason why it should be heard.
An applicant for leave to appeal must convince the Court on proper grounds that
there is a reasonable prospect or realistic chance of success on appeal. The Court
noted that a mere possi bility of success; an arguable case or one that is not
4 Superior Courts Act 10 of 2013.
5 Notshokovu v S ( unreported, SCA case no 157/15 dat ed 7 September 2016.)
6 Mtungwa v Premier of Kwazulu Natal, unreported, KZP case no 3618/22P dated 28 February 2023
at para 5.
at para 5.
7 Talhado Fish ing Enterprises (Pty) Ltd v Firstrand Bank Ltd t/a First National Bank, unreported ECGq
case no 1104/2022 dated 14 March 2023 at para 3.
8 Mombeeg (Pty) Ltd v Eskom Rotek Industries SOC Ltd, unreported, Gj case no 2021/15418 dated
27 March 2023 at para 9.
9 MEC for Health, Eastern Cape v Mkhitha, unreported, SCA case no 1221/2015 dated 25 November
2016
hopeless is not enough. There must be a sound rational basis to conclude that there
is a reasonable prospect of success on appeal.
[22] Erasmus10 in its commentary observes that from this foreshadowed list of
authorities following enactment of the new Act, it follows that leave to appeal must
only be granted when there is a rational basis for doing so. This court concurs.
[23] After considering the grounds set out in the application for leave to appeal
together with the parties’ submissions, this Court is not satisfied that the applicant
has demonstrated that this Court misdirected itself on the facts or in law in
dismissing the Rule 30 application nor refusing the postponement and determining
the main application.
[24] It was held in Trencon Construction 11 that judicial discretion in the true
sense is found where a court has a wide range of equally permissible options
available to it. A true discretion obtains in circumstances where a court has an
election as to which option it will apply and no option can be said to be wrong where
each is entirely permissible given the circumstances. By contrast, where a court has
a discretion in the loose sense, it does not necessarily have a choice between two
equally permissible options. Instead, such a discretion means no more than that a
court is entitled to have regard to a number of disparate and ‘incommensurable
features’ in coming to a decision.
[25] It is this Court’s view that its decision regarding its direction to hear both the
Rule 30 application together with the main application as directed in February 2025
to the parties entailed a true discretion. It is also this Court’s view that its authority in
relation to consideration and decision in respect of the condonation applications (i.e.
condonation application for late filing of heads; condonation application for late filing
of the rule 30 application; condonation application for the postponement) as dealt
of the rule 30 application; condonation application for the postponement) as dealt
with on the day of this hearing involved the exercise of a true discretion.
10 Erasmus, Superior Court Practise, vol 1 3 rd edition, service 4, 2024 at D -106.
11 Trencon Construction (Pty)Ltd v Industrial Development Corporation of South Africa and Aonther
2015 (5) SA 245 (cc) at 82 -86.
[26] In Giddey12, it was observed that the approach of an appellate court to an
appeal against the exercise of a discretion by another court will d epend upon the
nature of the discretion concerned. That where a discretion is a true discretion, the
appellate court will not consider whether the decision reached by the court of first
instance was correct, but will only interfere in limited circumstances for instance if it
is shown that the discretion has not been exercised judicially or has been exercised
based on a wrong appreciation of the facts or wrong principles of law.
[27] This Court empowered by Rule 6(11) directed that the rule 30 application will
be heard together with the main application understanding that the matters raised by
the parties were urgent. The argument that this direction was not judicious is thus
incorrect and misplaced given that applicant himself came to court on an urgent
basis. It was in the interest of justice for both insolvent, the trustees and creditors
that these matters are dealt with expeditiously.
[28] The Court did not receive a satisfactory explanation in the rule 30 condonation
application why the applicant did n ot or could not prepare a replying affidavit if he
deemed it critical to his case after getting the directions on 27 February 2025 that the
matter is set down for 14 March 2025 from the Judge hearing this matter. The
applicant ignored the Court’s directiv e and when the condonation for late filing is
refused the applicant seeks a postponement to allow him to prepare.
[29] In any event a case for an applicant is not made out in a replying affidavit nor
can the applicant raise new matters therein. A replying affidavit is limited to those
matters as may have been raised in the answer requiring a substantive rebuttal. A
reply is thus at the election of an applicant, where if so employed requires due
diligence such that a court is put into a position to take acc ount of when the matter is
diligence such that a court is put into a position to take acc ount of when the matter is
considered. In this case the applicant did not, after getting clear court’s direction on
how it intends to manage proceedings, draft a replying affidavit. Even if applicant’s
counsel believed he could not take any further step, w hich was legally incorrect, as
he argued before this court after filing the rule 30. If proper regard is had to the
direction given by this court on 27 February 2025 there was no explanation why a
12 Giddey N.O. v JC Barnard and Partners 2007 (5) SA 525 (cc) at 19.
draft could not be kept in hand to hand up or file should t he rule 30 application they
had filed fail.
[30] It was held by Schutz JA13 that a party opposing an application to postpone as
was the case in this matter has a procedural right that the matter should proceed on
the appointed day. That it is also in the p ublic interest that there should be an end to
litigation. The court found in that case that in order for an applicant for a
postponement to succeed, he must show a ‘good and strong reason’ for the grant of
such relief. The more detailed principles were su mmarized by the Constitutional
Court as follows:
‘The postponement of a matter set down for hearing on a particular date
cannot be claimed as of right. An applicant for a postponement seeks an
indulgence from the Court. Such a postponement will not be gran ted unless
this Court is satisfied that it is in the interest of justice to do so. In this respect
the applicant must show that there is good cause for the postponement. In
order to satisfy the Court that good cause does exist, it will be necessary to
furnish a full and satisfactory explanation of the circumstances that give rise to
the application. Whether a postponement will be granted is therefore in the
discretion of the Court and cannot be secured by mere agreement between
the parties. In exercising th at discretion the Court will take into account a
number of factors, including but not limited to:
i) Whether the application has been timeously made;
ii) Whether the explanation given by the applicant for postponement is full
and satisfactory;
iii) Whether there is prejudice to any of the parties; and
iv) Whether the application is opposed.’
[31] It is apparent that the applicant took it for granted, against a clear direction of
this Court, that if the Rule 30 application fail they will be entitled to a po stponement.
Postponements are not just there for the taking as held in McCarthy Retail’s case.
Postponements are not just there for the taking as held in McCarthy Retail’s case.
This application for postponement was opposed. There must be sound reason
13 McCarthy Retail Ltd v Shortdistance Carriers cc [2001] 3 All SA 236 (a) at 28.
advanced which in the Court’s view justify granting an order for postponement. The
Court had to consider prejudice or potential prejudice not only to applicant but also to
respondents. The applicant’s failure to advance sound reasons for the court to grant
a postponement is not a miscarriage of justice nor can it be said to raise a
constitutional infringement as it relates to a litigant’s right to a fair hearing. A Court
has a duty to always balance the rights of an applicant to those of respondents.
Conclusion
[32] The applicant has failed to show that there are reasonable prospects that
another court would differ from our judgement and orders.
[33] Furthermore, the applicant has failed to show that there is any other
compelling reason why leave to appeal should be granted.
Costs
[34] Applicant and respondents have asked for costs. This Court is satisfied that
respondents are entitled to costs.
Order
Accordingly, I would make the following order:
[35] The application for leave to appeal is dismissed.
[36] The applicant is to pay costs of the 3rd to 6th respondents on Scale C.
__________________________
KHOLONG, AJ
I agree. It is so ordered.
__________________________
SLINGERS, J
Appearances:
For the Applicant: Mr. Van der Merwe
(appearing in person)
For the Third to
Fifth Respondent: Adv L.M Olivier SC
Instructed by: JI Van Niekerk Incorporated Attorneys
For the Sixth
Respondent: Adv. D.W Baguley
Instructed by: Strydom and Bredenkamp