REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFR ICA
LIMPOPO DIVISION, POLOKWANE
CASE NUMBER : 11237/2024
(1)
(2)
(3)
R E PORTAB LE : ¥-ES/NO
OF INTEREST TO THE JUDGES : YES/NG
REVISED.
DATE 16 September 2025
~· jl
SIGNATIJRF .c. -
In the matter between:
BENJANIN MAENET JA
AND
THE BALEPYE COMMUNAL PROPERTY
ASSOCIATION
PETER RAGANYA
APPLICANT
1 SI RESPONDENT
2nd RESPONDENT
In re
THE BALEPYE COMMUNAL PROPERTY
ASSOCIATION
PETER RAGANYA
and
BENJANIN MAE NET JA
Delivered: 16 September 2025
2
1 ST APPLICANT
2 N D APPLICANT
RESPONDENT
This judgment was handed down electronically by circulation to the parties'
legal representatives by e-mail. The date and time for hand down of the
judgment is deemed to be 16 September 2025 at 10:00 am .
Date heard
Coram
09 September 2025
Chidi AJ
REASONS FOR THE ORDER
OF THE 12TH OF SEPTEMBER 2025
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Chidi AJ:
Introduction:
[1] These are reasons for the order which was transmitted to the parties on the 12th of
September 2025. In this matter, the applicant approached the Court on an urgent
basis, for a hearing on the 9th of September 2025. I entertained the matter as such.
It was a reconsideration application in terms of Rule 6( 12( c ). In paragraph 11 of his
'founding' affidavit, the jurisdictional requirement of absence is established by the
applicant. In paragraph 3.9 of their 'answering' affidavit, the respondents confirm, in
the negative, that the impugned proceedings went on without the applicant's
version. In paragraphs 3.9 and 3.10, the respondents concede the reason for the
applicant's absence when annexure X 2025 order was granted. Absence is
established.
[2] On urgency, I proceeded to hear the matter. Generally, reconsideration applications
turn to be heard on an urgent basis, should the requirements of urgency be met by
the applicant. In his affidavit, the applicant did set out material grounding urgency.
The respondents aver that there is no urgency, on two grounds. I deal with those,
which are the first and second. The interest of justice is a question I, mero motu, put
to the respondents-
First-timelines for filing
2.1. the respondents' complaint is that the timelines for their filing was not
commensurate with urgency. Effectively, the respondents had three days to
file a notice of intention to oppose and the relevant affidavit;
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2.2. my view is that the respondents were already well versed with the facts in
the matter. So were their legal representatives. The reconsideration
application was not a matter in which fresh facts were to be dealt with. The
facts were known between the parties, given previous proceedings and the
founding papers in the impugned proceedings;
2.3. a study of the respondent's affidavit reveals that the respondents do set out
a number of things, in the main-
a. urgency;
b. background to the reconsideration application, in paragraph 4 of the said
affidavit;
c. averments as per their founding papers in the impugned proceedings;
d. to some degree, restatement of what appears in their founding affidavit;
e. the setting out of the basis for the argument to be advanced, and
f. the new issues, namely: service of the order and why the bringing of the
impugned proceedings were not in contempt of the order the applicant
was held to have been in contempt of (it will become clear below what
the issue is in this regard).
2.4. Nothing in the respondents' answering affidavit needed elaborate time for
their version to be advanced. At any rate, the respondents were able to and
did indeed file their affidavit within the applicant's regulated timelines. The
respondents' main version, in my view, is in the founding affidavit in the
impugned proceedings.
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2.5. there was no need for the applicant to file an affidavit of the length it did. In
paragraph 32, below, under a different context, the reasons for this
conclusion appear.
Second- substantial relief
2.6. a possibility of imprisonment-in the impugned proceedings, the applicant
was held to have been contemptuous of the order in paragraph 3.1, below.
Direct imprisonment was suspended for two months. The suspension was to
be and was still alive, as of the date of the order and these reasons, until
around the 18th of October 2025. By implication, the initiation of the
reconsideration application amounted to a decision relevant to the 1 st
respondent;
2.7. if I did not hear the matter on an urgent basis, the applicant would possibly
have been imprisoned, for making a decision to bring the reconsideration
application, when it appeared, in the circumstances, to be that the 2nd
respondent seemed to have thought that he was either permitted to make a
decision on behalf of the 1 s1 respondent or that he could bring legal
proceedings without making a decision to initiate such proceedings. By
simply initiating the impugned proceedings, the respondents seem to have
hoped that when the applicants invoke the Rules of Court for reconsideration,
if they could, as they did, the respondents' defence would be that the
applicants violate the 05th of December 2024 order. Even if that may not have
been what the respondents intended, the effect is the same;
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2.8. no relief in due course was available to the applicant, let alone a substantial
one;
Substantial relief-test for urgency and immediate assistance
2.9. if the above is not enough, the applicant passed the test for urgency. For this,
I rely on Tsengwa v E xxaro Resources Limited (20241148733) [2025]
ZAGPPHC 82, paragraph [18], in which the Court held-
' ... the test for urgency begins and ends w ith whether the applicant can obtain
substantial redress in due course. It means that a matter will be urgent if the
applicant can demonstrate, with facts, that it requires immediate assistance
from the court, and that if her application is not heard earlier than it would be
in due course, any order that it might later be granted will by then be no longer
capable of providing her with the legal protection she requires.' (My
emphasis).
2.10. The applicant requires immediate judicial assistance. As for the underlined
in the preceding paragraph, it does not apply in this matter, since there would
not have been any relief in respect of imprisonment. If I did not hear the
matter, the applicant wou ld have stood no chance of demonstrating, before
any forum, why he should not be imprisoned for bringing the reconsideration
application.
Thirdly, Interest of justice
2.11. the interest of justice-on their own version, the respondents pleaded that the
order in paragraph 3.1, below, prohibited the applicant from deciding on
beha lf of the 1st respondent. The re spondents so submitted , and this was in
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line with their papers. The submission was that by filing a certain process in
some other proceedings elsewhere, the applicant had decided for and on
behalf of the 1 st respondent. There appears to have been another leg to the
prohibition. The respondents were silent about this. They disclosed the
prohibition but were silent about its meaning and effect on them. The
prohibition seemed not limited to the applicant. On a reading of the papers,
and when urgency was a subject of argument, the prohibition seemed to have
been against the respondents as well. I set out the relevant facts and give
my reasons for this, below;
2.12. the above considered, the interest of justice dictated that I proceed on an
urgent basis, as I did.
[3] Enough about urgency, I turn to the order sought to be reconsidered and set aside.
On the face of it, the application is for reconsideration of two orders, namely-
3.1. the impugned order, of August 2025, attached to the papers as annexure X .
The date that appears on the applicant's reconsideration notice is not the
date which appears on the order. In paragraph 4.4 of its answering affidavit
to these reconsideration proceedings, the 1st respondent records yet another
date. I will, for ease of reference, refer to the order by my brother Muller J,
as annexure X August 2025 order (it is attached to the applicant's affidavit);
and
3.2. one dated the 12th of August 2025. This, according to prayer 3 of the notice
of reconsideration. This date is the one on w hich the notice of mo tio n in the
8
impugned proceedings was signed.
[4] A reading of the 'founding' affidavit reveals that the challenged order is annexure X
August 2025 order. Since the affidavit contains the applicant's evidence, nothing
turns on prayer 3. Prayer 3 concerns an alleged order of the 12th of August 2025.
At any rate, the alleged order is not attached to the papers. There appears not to
be such an order.
[5] Only at the commencement of the hearing did it occur to me that what I perused,
which was the material on casefines, was not the case I had to entertain. The
applicant's papers were not filed. The founding papers were handed up in Court.
The 1st and 2nd issues in this matter, specified by the applicant, were set out in the
papers. So were the remaining issues. In argument, the applicant referred to those
issue as they are pleaded in the papers and made submissions.
[6] The applicant's summarized grounds for reconsideration appear below, albeit
couched in these reasons as issues for determination. On completion of oral
submissions, I could not deliver an extempore judgment. Heads of argument on a
specific issue had to be filed. I specify the issue below. By the way, a
reconsideration application is a process for re-determination of the matter (in this
case the impugned proceedings and the relevant order). See the reported
judgment of Basil Read (Pty) Ltd v Nedbank Ltd and Another 2012 (6) SA 514
(GS J), paragraph 17. The papers in the impugned proceedings, the applicant's
(applicant in the reconsideration application) papers and all the material filed in this
reconsideration had to be considered, as is trite law. I considered them.
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[7] Allocated a civil trial matter under a case number different from the one under which
this application proceeded, on special roll, one decided and proceeded to hear the
applicant's reconsideration application even when the founding papers were
handed up at the commencement of the hearing. I thought it proper to assist in
entertaining the matter, since I was so allocated the reconsideration application.
Issues for determination
[8] The issues for determination are (and I have dealt with urgency above)-
[8.1] whether the 1 st respondent was properly before the court when it obtained
annexure X August 2025 order. This relates to the 2nd respondent's authority
to litigate on behalf of the 1 st respondent;
(8.2] whether the 2nd respondent (2nd applicant in the main case) may not have
violated the Court order of my sister, Naude-Odendaal J, dated the 5th of
December 2024. If violated, what then would be the effect, in respect of the
impugned proceedings?
[8.3] whether the respondents complied with the duty of material disclosure, and
[8.4] that, there was no service of the order of the 5th of December 2024, as required.
Background to this application
[9] Relevant to this matter, the applicant and the 2nd respondent are brought together,
though they have a dispute/s, by the 1st respondent. There is a history of litigation
involving them. Four sets of proceedings are, other than this matter, pleaded.
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(10] The proceedings are evinced by the order dated the 05th of December 2024. Further
by the May 2025 proceedings and the proceedings in the Gauteng High Court. On
the material before me , the impugned proceedings are, so far, the penultimate set.
(11] The reconsideration proceedings herein concerned were the last set, as of the date
of the hearing of the reconsideration application.
(12] Regarding the impugned proceedings, the 2nd respondent cited himself for no
apparent reason. In paragraph 3 of his 'founding' affidavit, he records that-
'I am duly authorised to bring this application by virtue of a resolution taken by the
first applicant in the main application ... attached hereto marked annexure PR1 '
(13] Nowhe re does the 2nd respondent state that he acts in his personal capacity. He
just joins himself, without acting for himself. Under a different context, I come back
to this issue below.
(14] The impugned proceedings, as is the case with these reconsideration proceedings,
were and are still between the applicant and the 1 st respondent.
(15] Some relevant timelines are set out below, under the rubric, 'authority'.
Parties' submissions and filing
(16] The parties made submissions mainly on two issues, namely: the authority to litigate
for and on behalf of the 2nd respondent and whether the 2nd respondent, a person
who, on the applicant's version, appears to have made a decision to institute the
impugned proceedings for and on behalf of the 1 st respondent, may have violated
the order of the 5th of December 2024. The order prohibits the 2nd respondent and
11
others from making decisions on behalf of the 1 st respondent.
[17] The impugned proceedings centred on the applicant's conduct, as both parties
submitted. During the impugned proceedings, the Court found the applicant to be
criminally contemptuous. The applicant's conduct was visited with a two-month
direct imprisonment sentence.
[18] Given the imposed imprisonment, albeit suspended, I had to hear the applicant,
regardless of the filing challenges in the matter. Invariably, given the applicant's
papers being handed up in Court, this had a bearing on the duration of the hearing.
(19] The non-filing of the papers on caselines was explained at the hearing. At the heart
of the explanation was a number of the challenges the parties seem to experience
with access, uploading of papers, and related issues. This was nol the only matter,
on my roll, in which the caselines issue cropped up. Practitioners should really make
more efforts to cause the system to work and for it to be as efficient as reasonably
possible, a great system, it must be said. I hope practitioners in this Division will,
with time, make it more functional.
(20] During argument, the applicant submitted that the respondents did not disclose
material information to my brother Muller J. It was submitted by the applicant that
the undisclosed matter was a contempt application which was struck off the roll by
my brother, Mangena AJ (May 2025 proceedings). Reference by the applicant to
the papers in respect of the May 2025 proceedings and the relevant notice of
application in such May 2025 seemed persuasive. In summary , the applicant's
Counsel submitted that the 1 "' respondent sought, in the May 2025 proceedings,
12
the same relief as in the impugned proceedings and the parties were the same. Had
there been disclosure, the applicant's Counsel submitted, the Court in the impugned
proceedings may not have granted annexure X 2025 order. The applicant's Counsel
submitted that disclosure was material. Counsel for the respondents' submission
was to the contrary. There was no obligation to disclose, on the respondents'
submission. The respondents' submissions contradicted those of the applicant. Too,
the respondents' submissions seemed persuasive.
[21] At the end of the submissions, I directed the parties to file heads of argument on the
10th of September 2025, at or before 10:00 AM , on the material disclosure and
costs. I reserved judgment.
[22] When , therefore, the matter adjourned on the 09th of September 2025, material
disclosure was the third issue. Costs as well. All issues for determination are
specified above.
[23) The respondents' heads of argument were filed nine minutes later than the directed
time. Only on the 11th of September 2025, at 16:34 PM , did the applicant file his
heads of argument, limited to the material disclosure.
[24) The construction of the judgment ensued immediately after receipt of the applicant's
heads of argument. On the 12th of September 2025, judgment was still to be
finalized. What remained was the form, in the sense of editing. I deemed it proper
to cause the order to be transmitted to the parties. On the 12th of September 2025,
I caused the order to be transmitted. What had to follow were the reasons for the
order, a promise I made to the parties on transmission of the order.
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(25] I now turn to the issues. Under each rubric, I also set out the parties' submissions
relevant thereto.
Authority
(26] During argument, the applicant raised and in the papers, objected to the 2nd
respondent's lack of authority to act for and on behalf of the 1 st respondent in the
impugned proceedings. The question was , therefore-whether the 1 st respondent
was properly before the court during the impugned proceedings. This is related to
the 2nd respondent's authority to litigate on behalf of the 1 st respondent.
[27] As stated above, the 2nd respondent was not a party seeking any relief. The reason
why he was the 2nd applicant (now 2nd respondent) in the impugned proceedings
does not appear in the papers. Consequently, the annexure X August 2025 order
was obtained by the 1 st respondent. In this re-determination, given the applicant's
averment and submissions on lack of authority, and the respondents' submissions
to the contrary, the issue was whether the pt respondent was properly before the
Court in August 2025.
(28] The 1 st respondent obtained an order on an urgent basis and in the absence of the
applicant. This was on a date in August 2025. The applicant's pleadings reveal a
different date. What cured the applicant's case is reference to annexure X in its
prayer 2. Hence , I call the order annexure X August 2025 order, instead of referring
to it as an order of a specific date, except in the next paragraph, the conclusion and
order I make . below and in certain instances.
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(29] In August 2025, the 1st respondent initiated reconsideration proceedings. The
application was heard on the 19th of August 2025, on the urgent roll.
(30] The 1 st respondent's affidavit supporting the impugned proceedings was deposed
to on a date after or not before the 7th of August 2025. This is gleaned from
paragraph 5.3 of the said affidavit. The affidavit was in support of and led to
annexure X August 2025 order being granted.
(31] The decision by the 2nd respondent to initiate the application proceedings, a subject
of reconsideration, would have been made closer but prior to the date on which
annexure X order was granted. The decision was made around the 12th of August
2025.
[32) On caselines, the date of the affidavit in the impugned proceedings does not appear.
I do not place reliance on this for the decision I arrive at. If the incomplete affidavit
was to be an issue, I would have invited the 1st respondent to hand up a full affidavit
in Court. Since the respondents filed an affidavit in answer to the applicant's
'founding' affidavit in the reconsideration application, and the portion of the
respondents' founding affidavit in the impugned proceedings filed on caselines was
in respect of the issues for determination, all issues could be and were ventilated.
Not that I am not alive to what Basil Read means . The following are relevant-
32.1. a move away from the approach in Basil Read should not ordinarily be
encouraged. I exercised my discretion to proceed in the manner I did on the
basis that the respondents' answering affidavit was not substantially different
to the founding affidavit in the impugned proceedings. What ts titled an
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answering affidavit was not, in the language of Basil Read in paragraph 22,
a 'supplement' of the 'original founding affidavit'. I summarised its content
in paragraph 2.3, above;
32.2. the applicant, for instance, alleged that the respondents did not serve
annexure X 2025 order. Other issues raised by the applicant is material
disclosure, with attachments the applicant wished could support this point.
The applicant is entitled to refute such. There is no other way of refuting such,
other than in the form of filing an affidavit. They are factual issues. In my view,
Basil Read and the authorities it relies on, remain sound law. The rule
deduced from Basil Read judgment does not exclude an affidavit, in addition
to a founding affidavit, of a party who, after obtaining an order in the absence
of the other, is called for redetermination of the order. As stated above, what
is not required is the supplementation of the original founding affidavit, and
32.3. the above is supported by paragraph 37 of Basil Read which I understand
it to mean that '... especially where the aggrieved party has not filed any
affidavits ... ·, no further affidavit, other than the founding affidavit. is allowed in
reconsideration applications. In Casu, the applicant, who is the aggrieved
party, filed an affidavit it titled a founding affidavit and states that it answers
the founding affidavit of the respondents (none of the two found any
proceedings, save to initiate them ). It follows, from Basil Read , and in my
opinion, that the respondents could, as they did, file an affidavit, perhaps not
titled answering affidavit. The title does not matter.
(33) The date on which the decision to initiate the impugned proceedings was made
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does not appear in the 1st respondent's founding papers (as an applicant in the
impugned proceedings). By whom, other than the 2nd respondent, as well, the
decision was made, is not revealed in the said affidavit. It is apparent from the
deponent to the 1 st respondent's affidavit that the decision may have been made on
the Jth of August 2025 or between the 8th to the 12th of August 2025. The notice of
motion is dated the 12th of August 2025. Further, the index is dated the 14th of
August 2025. The fact is, as of the 12th of August 2025, a decision to litigate had
already been made.
[34] The only person who made that decision is the 2nd respondent. This, he says, as I
will show below.
(35] The above notwithstanding, the resolution purportedly authorizing the 1 st
respondent to initiate the impugned proceedings is not of the year 2025. It is of the
year 2024, dated 8th of October.
[36] In the said 2024 resolution, the 1st respondent (through persons recorded as its
Executive Committee members) authorized the 2nd respondent, who is its
Chairperson, to be a deponent and to initiate interdictory proceedings. The
impugned proceedings were not interdictory in nature. They were punitive,
criminally.
[37] Counsel for the respondents, when invited to address the court on the issue,
indicated that the resolution is one from the first set of proceedings. He was not
referring to the impugned proceedings. Rather, he was referring to the proceedings
which resulted in the order of the 05th of December 2024.
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[38] The cause of action for the impugned proceedings arose on the 7th of August 2025.
After that date, no resolution to litigate was made. On his version, the 2nd
respondent, for the 1 st respondent, avers, in paragraph 1.3, that-
'I am duly authorized to bring this application by virtue of a resolution taken by the
first applicant in the main proceedings"
[39] Counsel for the 1 st respondent conceded that the main proceedings refer to the
proceedings which led to the order of the 5th of December 2024. From the attached
resolution to litigate, the 2nd respondent appears to have been under an impression
and thought that since he was authorised under the December 2024 proceedings,
he was, too, authorised to bring the impugned proceedings. That is not what the
resolution says.
[40] To bring the criminal contempt proceedings, a decision had to be made. The entity
to make the decision was the 1 st respondent, through its Executive Comm ittee
members . If it so decided, it would have resolved to bring contempt proceeded,
since in 2024, it resolved to initiate interdictory proceedings. Conce rning wh en the
resolution could have been made , it could only have been made on or after the 7th
of August 2025. The said date is one on which the cause of action arose in the
impugned proceedings. I do not suggest that the decision would have been to set
the law in motion by way of issuance of the papers, under a new case number. What
I mean is that no litigation may be commenced without a decision to bring it. That
decision had to be made.
[41] As a ve rred by the 1st respondent. which I set out in paragraph 47, below, Part B
was still pending when the decision to bring the impugned proceedings was made.
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For this reason, the 1st respondent would appear, as speculative as this may be, to
have been aware of this. That may explain why it did not decide to litigate and
commence proceedings. Even if my speculation is incorrect, on the material before
me , the 1 st respondent did not decide to institute the impugned proceedings.
[42] In my considered view, the attached resolution was not one for the impugned
proceedings. Since the 1st respondent was not properly before the Court when the
annexure X August 2025 order was obtained, it ought not to have sought the order.
It should not have succeeded.
[43] The 1 st respondent was not entitled to annexure X August 2025 order. Ne vertheless,
if I am incorrect in my finding, the matter should not end here. The applicant w ould
still have succeeded on the next issue.
Acting against the court order
[44] In paragraph 5.2 of its affidavit in the impugned proceedings, the 1 st respondent
avers that the order of the 5th of December 2024 prohibits decisions from being
made regarding the 1st respondent. Indeed, prayer 8 of the order so directs. It is
attached to the 'founding' affidavit in the impugned proceedings, marked annexure
PR-2. It is important to record, in my reasons, the wording of prayer 8-
'none of the parties (Applicants and Respondents) may take any further decisions
or call meetings pending finalization of part B'
[45] The 1 st and 2nd respondents are the 1 st and 2nd applicants in the proceedings in
which the order of the 5th of December 2024 was granted. Having succeeded in the
application, they should be the ones who endeavour to protect the order. In the
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context of these reasons, the first set of persons who should advance and protect
prayer 8 are the two of them.
[46] The 1 st respondent has not violated the order. Wearing the 1 st respondent's
chairpersonship hat, it is the 2nd respondent, as the chairperson, who did so.
[47] Before my brother Muller J, on the 19th of August 2025, the deponent (2nd
respondent) relied on paragraph 5.2 of the 'founding' affidavit. In the paragraph, the
said respondent averred that part 8 was still pending.
(48] During the hearing, and this was on merits, I pointed out to Counsel for the 1st
respondent that maybe the parties should consider applying for a variation of the
relevant term of the order.
[49] My view was and is still, without making a ruling on the issue, that certain decisions
relating to the 1st respondent had and still have to be made. However , since there
is a Court Order, it should, until set aside, be complied with. If, as is the law,
administrative decisions are binding, what of court orders? That Court orders are
binding is trite law. The case law I set out below on this point should, I believe, fortify
my view that court orders, until set aside, remain binding. They enjoy their currency.
My approach is not aimed at restating the law on a trite position. The authorities are
relied on for a different subject.
(50] The 1st respondent's conundrum is that the decision to institute the impugned
proceedings offends the order of the 5th of December 2024. The order still existed
when the order sought to be set aside was granted. It still exists. It should be
complied with. That, sadly for the respondents, is the quagmire from which they may
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not be able to extricate themselves in respect of the applicant's application.
[51] Perhaps as though it is a sub-rubric, without labelling it as such, the dirty hands
principle seemed , during argument, to me applicable in this matter. Before seeking
compliance with an order of Court, a litigant must first comply with such an order of
Court. That seems , to me , to be the essence of the principle. If non-compliance with
the order is established, an applicant would have challenges in proceeding further
with the case. During argument, I gave the 1st respondent's Counsel an opportunity
to address me on whether the principle applies and if not why. The kernel of his
response was that it does not apply.
[52] Relying on the South African law (from paragraph 34 ), a Namib ian judgment makes
clear the principle. It was in the matter of Ae Gams Data (Pty) Ltd and Others v
Sebata Municipal Solutions (Ply) Ltd and Others (A224/2009) [2011] NAHC 6 (21
January 2011 ), paragraph 46. Muller J, of Namibia, held and I quote with approval-
'ln the light of the court's decision to confirm the Rule Nisi issued on 21 August 2009,
the respondent is in contempt of court. As long as that order is not complied with
the respondent's hands are dirty and no legal proceedings can be conducted by the
respondent in this court. The respondent is either a crucial or only relevant
defendant in the exception. The exception can therefore also not be entertained by
this court at this stage.'
[53] The Court had earlier stated in the judgment, in paragraph 34, and too, I quote with
approval-
'Our law is clear that a litigant cannot act against an existing court order or an Act.
This is commonly referred to as the doctrine of "dirty hands" or "clean hands". This
doctrine has been considered in old English cases and the ratio is "purge first and
argue later". In the context of an existing law or court order it means that until such
time as that law or court order had been set aside it must be complied with. It is
21
irrelevant that the law or court order may be unconstitutional or wrong.'1
(54) Context specific to and indistinguishable from the facts in casu respecting the 1st
respondent's compliance with the order of the 5th of December 2024, the Namibian
judgment clarifies the application of the principle. The judgment heavily draws from
the South African law. It is as good as South African law. I state this because some
may ask-why go far when Courts in South Africa have had occasions to consider
and have expressed themselves on the principle.
[55] The law, therefore, is that as long as an existing order is not complied with, a non
compliant party's hands are dirty. The consequence of that is-no legal proceedings
initiated by such a non-compliant litigant will be conducted. I am not invited to make
a ruling on the effect of not hearing a non-compliant initiating litigant. The point is
that such a litigant will not be heard. Whether there should be dismissal of the
initiated proceedings or not is not an issue for my determination.
(56] What serves before me is whether the 1st respondent ought to have been heard, on
the day the impugned proceedings were held.
(57] Coming back home, in the reported judgment of Villa Crop Protection (Pty) Ltd v
Bayer Intellectual Property GmbH, 2024 (1) SA 331 (CC), paragraph 72, the
Constitutional Court held that-2
' ... the authorities do bear out the proposition that to dismiss a claim that a litigant
would pursue before the courts on the grounds of abuse is not precluded because
that claim exists in law. The claim is dismissed because the litigant who would bring
it is disqualified from doing so by reason of their abuse.' (footnotes excluded).
1 Commonly applied in the field of tax.
2
In 2005, the Supreme Court of Appeal, in Klokow v Sullivan, 2006 (1) SA 259 (SCA), paragraph 17, further
confirmed that the principle applies In South Africa
22
[58) As I pointed out above, to dismiss or not is not an issue in the reasons I give for the
order I made. The Namibian Judgment states that such a litigant will not be heard.
According to Villa Crop , a litigant with dirty hands should be dismissed. For the
purposes of this matter, whether not heard or dismissed, the 1st respondent would
not have been entitled to annexure X 2025 order.
[59) The Constitutional Court referred, with approval, to judgments which had already
been made before the Villa Crop matter on the dirty hands principle. The principle
applies in certain other instances, such as fraud, dishonesty and ma/a fide. See J.K
v E.S.K, 2024 1 All SA 775 (WCC) , paragraphs 37-42. Non-compliance with court
orders seems to be the essence of the principle, as I stated above. The three other
jurisdictional facts of the principle (fraud, dishonesty and ma/a tide) or any one of
them or non-compliance with the Court order, if established, would vitiate a litigant's
application. This reconsideration application is not concerned with fraud, dishonesty
and ma/a tide. In this matter, at the centre is an existing Court order and whether it
was violated ..
[60) The closest persuasive case law on a broad approach, w hich fortifies the approach
on unclean hands, is in the unreported judgm ent of Uniqon Wonings (Pty) Limited
v Brooklyn and Eastern Areas Citizen Association (A253/2022) [2024)
ZAGPPHC 105 (7 February 2024 ). The judgment is neither about comp liance with
an order nor the three grounds in the preceding paragraph. In paragraph 32, the
Court held that-
'The doctrine of unclean hands m eans that a party seeking relief cannot have acted
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unethically or unjust in its own matter.'
(61] There is another set of grounds for holding that a party has unclean hands, which
is acting unethically or unjustly in an applicant's own matter. In casu, in August 2025,
the 1st respondent ought not to have decided to institute the impugned proceedings.
By instituting the impugned proceedings, the respondents acted 'unjust in its own
matter'. The 5th of December 2024 case and the impugned proceedings were under
the above case number. The proceedings relevant herein and the applicant's
reconsideration application are under the respondents 'own matter'. That said, the
respondents acted unjustly in their own matter.
[62] To allow the 2nd respondent to decide for the 1 s1 respondent, when the applicant is
not permitted, would mean that the order of the 5th of December 2024 was meant
only for the applicant, to the benefit of the respondents. That would be unjust. The
respondents should not be permitted, in their own matter, to act unjustly. I do not
see how such unjust conduct and results which may come with it should be
permitted. Judicial pronouncement to this effect has got to, as I do, be made.
[63] The respondents should not have sought the order. To obtain the order, the 2nd
respondent had to first comply with the said order. Compliance, unfortunately, for
the 2nd respondent, meant that the said respondent ought not to have decided for
the 1st respondent to institute the impugned proceedings. That he decided is
manifest in the litigation.
(64] The 2nd respondent ought not to have violated the order by deciding and proceeding
to approach, as he did, through the 1 st respondent, the Court. He ought not to have
24
instituted the impugned proceedings. He ought not to have sought the annexure X
August 2025 order.
Material disclosure
[65] I appreciate the parties' filing of heads. The applicant is the party who raised the
issue-material disclosure. He had to prove this.
[66] In addition to the papers filed of record and the submissions, I considered the heads
of argument. Regarding the papers, motion proceedings are based on the pleadings
and evidence in the affidavit, as supported by the attachments. The applicant, in
paragraph 30 of his affidavit, attaches annexure BDM04 , the notice of motion which
served before my brother Mangena AJ in May 2025. On a reading of the papers and
consideration of the parties' submissions, disclosure would not have been material
for the following reasons-
66.1. the hearing relevant to annexure BDM04, as recorded above, was in May
2025,and
66.2. the cause of action in the impugned proceedings arose on the 7th of August
2025.
[67] Although the relief sought is the same, however, the cause of action is not the same.
In respect of the impugned proceedings, what caused the application is the filing of
a Rule 7 notice in the Pretoria High Court. As for the matter in May 2025, the cause
of action relevant to the impugned proceedings had not arisen. I reject the material
dispute point concerning the May 2025 proceedings. What the 1st respondent did
25
not disclose was not material. It could not have had a bearing on the decision to be
made by my brother, Muller J. Had the applicant proved that disclosure was
apposite. And, that it was material, the principle of resjudicata would possibly have
found application. It does not since there was no obligation to disclose the May 2025
proceedings.
[68] What remains under this rubric is the Gauteng proceedings. Nothing turns on this,
since the applicant has not, unlike in respect of the May 2025 proceedings,
attempted to show why there is, in his view, material deserving of disclosure.
[69] Since I have already found that annexure X August 2025 order ought not to have
been sought, the limitations on the duty of disclosure in this matter compe l me not
to take the issue any further. I stop here on the Gauteng High Court aspect of this
issue.
Service of the order
[70] During argument, the applicant's counsel did not strongly advance this issue. He
seemed resigned to a possibility that the applicant might not succeed on this point.
On the 5th of December 2024, when the order was delivered, the applicant was
present in Court. His legal representatives were also in Court. Counsel so indicated
during the hearing that the applicant was in Court. I do not think that legal
representatives would not have advised the applicant, on the day of the order, soon
thereafter or around May 2025 proceedings, about the effect and meaning of the
order. At any rate, after the 5th of December 2024, the order was served on his
attorneys.
26
[71] Assuming, without agreeing, in _the applicant's favour, that he needed personal
service, as he submitted, he is the one who attached the notice of motion in the May
2025 proceedings. He personally became aware of the said proceedings. The last
page of annexure BOM004 shows that his attorneys were served with the papers.
At the centre of the papers was the Court order of 5th of December 2024.
[72] The She riff is a Messenger of the Court. If a litigant is in Court when the order is
made , and when a litigant is legally represented, full knowledge of the order may be
said to have been obtained from the original source, which is the Court, and not its
Messenger. The legal representatives, in this matter, possibly advised the
respondents, a point I made above.
[73] When the cause of action arose on the 7th of August 2025, the applicant was already
aware of the order of December 2024. He had personal knowledge of the order. I
do not agree with the applicant on this issue of service.
[74] The respondents' point on material disclosure falls to be dismissed. On both
grounds of material disclosure, I dismiss the applicant.
C onclusion
[75] I have set out grounds why the applicant's prayer 3 should not be granted. I do not
grant it, as I stated above. The annexure X August 2025 order, which order was
granted by my brother Muller J, (dated the 19th of August 2025), deserves to be, on
an urgent basis, reconsidered, as I have, and set aside, as I do.
[76] I need to state that this case partly demonstrates the challenges inherent in the
27
urgent Court, where, within a short space of time, Judges have to deal with many
matters. It is usually on the return date, and in some instances on the
reconsideration or anticipated day, that issues may be ventilated as best may be
required. With the benefit of more than one version, Judges usually benefit from
Counsel's contributions on the reconsideration, anticipation and/or Court fixed
return date. That was not so on the 19th of August 2025.
[77) The 2nd respondent remains the chairperson of the 1st respondent. He , however, in
the impugned proceedings, did not have a resolution to litigate and no authority to
act enforce the order of the 5th of December 2024. The 1st respondent is liable for
the 2nd respondent's actions when the latter, as in this case, acts as its chairperson.
It is trite that costs follow the results, unless there are cogent grounds to move away
from that position. In this case, there is no basis for me to deviate from that position.
Order:
[78) In the result, the following order is made:
1. the applicant's non-compliance with the prescribed Uniform Rules, regarding:
1.1. service of the papers, the manner of time limits for filing of the application
papers, and
1.2. the enrolment,
is hereby condoned,
28
2. the applicant's reconsideration application is declared urgent, it is enrolled and
heard on the urgent roll;
3. the annexure X August 2025 order, dated the 19th of August 2025, is hereby
reconsidered and set aside, and
4. the 1st respondent shall pay the costs of the application, party and party, scale
A.
APPEARANCES :
FOR THE APPLICANT
INSTRUCTED BY
FOR THE RESPONDENTS
INSTRUCTED BY
Chidi AJ
ACTING JUDGE OF THE HIGH COURT,
LIMPOPO DIVISION , POLOKWANE
Adv Rase lebana
MPHELA MOTIMELE ATTORNEYS
Polokwane
m otimcle({tlmph clam otimclcattom cys.co.za
Adv TD Sibiya
IS RAEL MAE NET JA ATTORNEYS
eazym1 O@ mailil.com