REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
LIMPOPO DIVISION, POLOKWANE
CASE NUMBER: 8159/2021
(1)
(2)
(3)
RE PO RTAB LE: YES/~
OF INTEREST TO THE JUDG ES : Y ES /~
RE V ISED.
::::::::::::::::::::::::: ~
DATE 25 Septem ber 2025 SIGNATURE ............................. .
In the matter between:
PHENYO IN MEDIA CONSULTANCY CLOSE
CORPORATION trading as PIMC DEVELOPMENT
COMMUNICATION
REGISTRATION NUMBER: 2004/047085/23
-and-
POLOKWANE LOCAL MUNICIPALITY
MUNICIPAL MANAGER OF THE POLOKWANE LOCAL
MUNICIPALITY
PLAINTIFF
1sr DEFENDANT
2 ND DEFENDANT
Delivered
D ate heard
Coram
BRESLERAJ:
Introduction:
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25 September 2025
This judgment w as handed dow n electronically by circulation to
the parties' legal representatives by e-mail. The date and time
for hand dow n of the judgment is deemed to be 25 September
2025 at 10:00 am .
2 June 2025
Bresler AJ
JUDGMENT
[1] This case initially came before this Court on the 7th of February 2025 as a Case
Management Conference in terms of Rule 37 A of the Uniform Rules of Court. The
follow ing directives w ere issued relevant for purposes of these proceedings:
1.1 The Defendant is directed to launch an application to determine the follow ing
issues w ithin 15 (fifteen) days from the date of the Case Management Meeting:
1.1.1 The Plaintiffs responsibility to lodge security;
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1.1.2 Mr. Lekoma 's authority to represent the Plaintiff in person in the
current proceedings before court and w ithout the assistance of a
legal representative.
1.2 The Plaintiff is entitled to deliver its Notice to oppose and Answ ering affidavit
w ithin 15 (fifteen) days after delivery of the aforesaid application;
1.3 The Defendant is entitled to deliver its Replying affidavit thereto w ithin 5 (five)
days from the date of deliver of the Notice to Oppose and Answ ering affidavit.
1.4 The Plaintiff shall deliver its Heads of Argument [pertaining to both the
aforesaid applications w ithin 10 (ten) days after delivery [/receipt] of the
Replying affidavit.
1.5 The Defendant shall deliver its Heads of Argument w ithin 10 (ten) days after
receipt of the Plaintiff's Heads of Argument.
1.6 Upo n compliance w ith the aforesaid directives pertaining to the exchange of
documents, either party w ill be entitled to approach the Office of the Judge
President for a preferential enrolment of the matter.
1. 7 The parties recorded that they have no objection to enrolling the matter before
the Court that attended to the Case Management Meeting.
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[2] The case w as therefore enrolled for argument (unfortunately on the unopposed
compel roll) on the 6th of June 2025 after substantial compliance w ith the said Case
Management Directives.
[3] From a consideration of the record that served before court at that stage, it w as
evident that there are numerous interlocutory disputes pending between the parties
that requires consideration and determination by the Court. As it w as how ever also
clear that the authority of the respective representatives of the Plaintiff and the
Defendants w as vehemen tly disputed, the Court directed that argument be heard
only on the follow ing aspects, w ith the remaining aspects to be deemed postponed
sine die:
3.1 The authority of Moh ale Incorporated to represent the 1 stand 2nd Defendant;
and
3.2 The representation of the Plaintiff by its member and w ithout assistance
from any legal representative.
[4] Having regard to the limited nature of the issues that require determination at this
stage, this Court is of the view that a detailed analysis of the factual synopsis of this
matter, w ill be of no purpose to these proceedings. The parties' arguments in Co urt
w ere thus only directed at the procedural aspects.
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The Applicable Legal Principles:
Represen tation of the Plaintiff by its member
[5] Mr. Phenyo Lekoma (hereinafter 'Lekoma ') is the sole director of, and shareholder
in the Plaintiff. Lekoma had appointed no less that four different legal
representatives from the commencement of the dispute between the parties. He
provided a detailed exposition as to w hy these representatives w ere terminated.
The Court do not see the need to analyse the conduct of these legal practitioners to
determine if same constitutes misconduct. Suffice to state that their conduct
resulted in adverse cost orders being granted against the Plaintiff in the past.
[6] D uring the Case Management Co nference held on 7 February 2025 and contrary to
the normal accepted practice, this Court directed the Defendants to subm it reasons
w hy Lekoma should not be allow ed to represent the Plaintiff in these proceedings.
This flow s from the fact that there has already been a judgment in this case
declaring that Lekoma may represent the Plaintiff. The Defendants w ere, in fact,
now applying for a form of reconsideration of that finding.
[7] In justification of the Defendants' view that Lekoma is not equipped and / or qualified
to represent the Plaintiff, counsel for the Defendant enunciated that this case is of
a complicated nature. A junior attorney w ill therefore not be able to assist Lekoma
in this matter. Lekoma requires the assistance of a duly qualified and experienced
legal team that w ould ensure that the rights of the Plaintiff are not prejudiced in any
w ay. It w as also submitted that Lekoma 's lack of know ledge and understanding of
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court procedures causes severe delays as incorrect procedures are pursued at
length and to the prejudice of the Defendants.
[8] In answ er to the subm ission made by the Defendants' counsel, Lekoma highlighted
that the very same issue w as considered by both Mphahlele AJ and Seme nya DJP.
Both found that Lekoma is equipped and qualified to represent the Plaintiff in the
absence of a legal representative. Lekoma also again highlighted his history w ith
previous practitioners that, according to him delivered unsatisfactory services that
resulted in an inordinate delay and w asted legal costs. In his view, the delay is not
caused by the Plaintiff's lack of legal representation but rather by the failure of the
Defendants to abide by the R ules resulting in Lekoma having to come to court
repeatedly to expedite the matter. Lekoma impressed on the Court that his door is
not yet closed to appoint an attorney in future, should the need arise. He merely
requires leave of the Co urt to continue representing the Plaintiff until such a need
arise.
[9] As stated herein before, this issue w as previous dealt w ith by the H onourable
Mp hahlele AJ and the H onourable Semenya DJP . Both these judgments favoured
the Plaintiff's view .
[1 O] The Hono urable Mp hahlele AJ dealt extensively w ith the ability of natural persons
to represent juristic persons w ithout the assistance of legal representation in his
judgmen t dated the 8th of April 2024.
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[11] Reference was made to the Suprem e Court of Appeal decision of Navy Two CC v
Industrial Zone Limited1 wh ere the follow ing w as inter alia stated:
'[11 J The decision in Hal/owes v The Yacht Sweet Waters has been severely
criticised in Lees Import & Export (Pty) Ltd v Zimbabwe Banking Corporation
Ltd2 as having overlooked the caveat placed upon the rule, recognising the
court's residual power to regulate its own proceedings unless fettered by
legislation. The caveat embodies a power which a court has, in the exercise
of its discretion and in the interests of justice, to permit a person other than a
legal practitioner to appear before it on behalf of a corporate entity, but only if
exceptional circumstances so warrant it.
[12] There is a lot to be said for the above criticism. It is clear that the rule
limiting representation of a corporate entity to legal practitioners is not
inflexible. In Arbuthnot Leasing International Ltd v Have/et Leasing Ltd &
others3, while accepting that the normal rule was that a body corporate must
appear by counsel or solicitor, the court recognised that in certain exceptional
circumstances, a director who is a party to litigation to which a company is
a/so a party may be allowed to appear in person for purposes which are also
those of the company.
1 2005 JDR 1069 (SCA )
2 1999 ( 4) SA 1119 ZSC at 1126 A -D.
3 (1991] 1 ALL ER (CH D ), at 597 to 598 a-h 599 a e g
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[13] In California Spice Marinade (Pty) Ltd and others in re: Bankorp v
California Spice and Marinade (Pty) Ltd v others; Fair O'Rama Property
Investments CC v others; Tsaperas; and Tsaperas4 after tracing the history of
the rule in the English common law Wunsch J came to the conclusion that a
court should be entitled, in an appropriate case and to avoid injustice, to allow
at least a one-person company to be represented at a court hearing by its alter
ego. The learned judge said that the inconvenience caused to the court as a
result of an unqualified person appearing before it had to be weighed up
against the injustice of a juristic person being denied access to the courts. In
this regard I agree with the reasoning of Wunsch J.'
[12] Shortly hereafter and in the case of M anong & Associates (Pty) Ltd v Minister of
Public works and Anothe r5 the Supreme Court of Appeal held:
'[6] It has been thought, somewhat cynically I dare say, that the rule is based
on some misguided attempt to preserve an unjustified monopoly for legal
practitioners. This is not the case. Litigation is based on the adversary system.
In determining a dispute, a court is dependent on the way in which the case is
presented. Factual admissions or denials are made from time to time and a
course of conduct has to be chosen by the litigants. When a corporation
instructs an attorney who in turn instructs an advocate the law recognises their
authority to bind the corporation for the purpose of litigation. In those
4 (1997] ALL SA 317 (W )
5 2010 (2) SA 167 (SCA )
9
circumstances a court need not concern itself about authority. Litigation will
become very difficult indeed if a court had to be concerned at every step of
the proceedings as to the authority of the person conducting the litigation to
make binding decisions. The litigant in person can of course make those
decisions without any question of authority, but a corporation cannot act
except through its agent and an agent cannot have more authority than the
corporation legally gives to it. Yet a further consideration is that corporate
officers could cause impecunious companies to litigate hopeless causes
without any fear of personal risk. Thus, apart from the fact that there are
usually rules of court that preclude a company from being represented by
anyone other than a qualified practitioner, a review of the cases in England,
Ireland, Australia, New Zealand and Canada shows that the courts, for
pragmatic and policy reasons, have set their face against unqualified persons
presenting and conducting cases unless they are doing so on their own
behalf. So too, in Zimbabwe and South Africa.
[7] That a person in the position of Mr Manong has no right, such as counsel
and in certain circumstances attorneys have, to address this court on behalf
of the appellant is thus well settled. But to observe that he does not have a
right of audience is not as Scott J put it 'to answer the question whether the
court does not have, and whether the court should not on the facts of the case
exercise, a power to permit him to address the court on behalf of the corporate
litigant'.
10
[BJ Yates did not consider the question of a judicial discretion to allow non
professional representation in a particular case. For, as Gardiner JP put it:
'The rules of procedure of this Court are devised for the purpose of
administering justice and not of hampering it, and where the rules are deficient
I shall go as far as I can in granting orders which would help to further the
administration of justice.'
Likewise, Denning MR stated:
'It is well settled that every court of justice has the power of regulating its own
proceedings; and, in doing so, to say whom it will hear as an advocate or
representative of a party before it. As Parke J said in Collier v Hicks ((1831) 2
B & Ad 663 at 672, 109 ER 1290 at 1293): "No person has a right to act as
an advocate without the leave of the Court, which must of necessity have the
power of regulating its own proceedings in all cases when they are not already
regulated by ancient usage".'
[9] The main reasons for relaxing the rule are, I suppose, obvious enough: a
person in the position of the controlling mind of a small corporate entity can
be expected to have as much knowledge of the company's business and
financial affairs as an individual would have of his own. It thus seems
somewhat unrealistic and illogical to allow a private person a right of audience
in a superior court as a party to proceedings, but deny it to him when he is the
governing mind of a small company which is in reality no more than his
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business alter ego. In those circumstances the principle that a company is a
separate entity would suffer no erosion if he were to be granted that right.
There may also be the cost of litigation which the director of a small company ,
as well acquainted with the facts as would be the case if a party to the dispute
personally, might wish to avoid. Such companies are far removed from the
images of gigantic industrial corporations which references to company law
may conjure up.
[1 OJ It follows that cases will arise where the administration of justice may
require some relaxation of the general rule. Their occurrence, in my view, is
likely to be rare and their circumstances exceptional or at least unusual. I thus
consider that our superior courts have a residual discretion in a matter such
as this arising from their inherent power to regulate their own proceedings.
After all, it seems to me that the power of a court to give leave to a corporation
to carry on a proceeding otherwise than by a legal representative is of
necessity an integral part of the rule itself.'
[13] And further:
'[15] This approach, in my view, is consistent with the right enshrined in s 34
of the Constitution, which provides that everyone has the right to have any
dispute that can be resolved by the application of law decided in a fair public
hearing before a court, or, where appropriate, another independent and
impartial tribunal or forum. Emphasising that the courts have a duty to protect
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bona fide litigants and the importance of untrammelled access to the courts,
the right enshrined in s 34 has variously been described by the Constitutional
Court as 'fundamental to a democratic society that cherishes the rule of law',
'of cardinal importance ... that requires active protection', foundational for 'the
stability of an orderly society', and a right that 'ensures the peaceful, regulated
and institutionalised mechanisms to resolve disputes, without resorting to self
help' and serves as 'a bulwark against vigilantism, and the chaos and anarchy
which it causes'.
[14] It is thus evident that the Court has a discretion, in the interest of justice, to allow a
member of a juristic entity to appear and represent such entity in court. This
discretion has at its heart, the ability of the Court to regulate its own procedures.
The De fendants' ma in concern is the fact that Lekoma 's lack of knowledge and
understanding results in an inordinate delay in the finalisation of the matter, which
in return, causes prejudice to the Defendants and the Plaintiff.
[15] Rule 37 A of the Uniform Rules of the High Court deals with Judicial Case
Management. Subrule (2)(a) states:
'(2) Case management through judicial intervention -
(a) shall be used in the interests of justice to alleviate congested trial rolls
and to address the problems which cause delays in the finalisation of cases;'
[16] Subrule (5)(b) furthermore provides:
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~ case management judge shall not certify a case as trial-ready unless the
judge is satisfied -
(i) that the case is ready for trial, and in particular, that all issues that are
amenable to being resolved without a trial have been dealt with;
(ii) that the remaining issues that are to go to trial have been adequately
defined;
(iii) that the requirements of rules 35 and 36(9) have been complied with if
they are applicable; and
(iv) that any potential causes of delay in the commencement or conduct of the
trial have been pre-empted to the extent practically possible.'
[17] Subrule (11 ), in turn, states:
'(11) Without limiting the scope of judicial engagement at a case management
conference, the case management judge shall -
(a) explore settlement, on all or some of the issues, including, if appropriate,
enquiring whether the parties have considered voluntary mediation;
(b) endeavour to promote agreement on limiting the number of witnesses that
will be called at the trial, eliminating pointless repetition or evidence covering
facts already admitted; and
(c) identify and record the issues to be tried in the action.'
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[18] It is evident that the purpose of Uniform R ule 37 A is to promote the effective disposal
of defended actions through judicial intervention. As stated herein before, the
current matter is the subject of an ongoing judicial case ma nagemen t exercise w ith
the sole purpose of expediting the matter and ensuring that the parties do not delay
unnecessarily. A ny delay caused because of a possible m isunderstanding of the
procedural aspects of preparing for trial can be largely addressed through
appropriate Case Management D irectives.
[19] It mus t also be noted that the remarks made by the Ho nourable Mp hahlele A J
equally finds favour w ith this court to the extent that this Court w as impressed w ith
the level of understanding that Lekoma has show n pertaining to court procedures
having regard to the fact that he is not a legal practitioner. It often transpires that
fully qualified practitioners abuse the Co urt process by launching frivolous and
vexatious proceedings. Having regard to the unfortunate history that Lekoma had,
and the damages that w ere caused to the Plaintiff to date by legal representatives,
one has sympathy for his plight to represent the Plaintiff.
[20] As such, this Co urt is of the view that the current situation is tantamount to
exceptional circumstances w here the normal rules of representation of juristic
persons should be relaxed in the interest of justice.
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[21] As stated herein before, the matter remains under Case Managemen t and the Court
has, to a large extent, the ability to regulate its ow n process to avoid any
unreasonable delay or abuse of process.
[22] It follow s that Lekoma should be authorised to represent the Plaintiff in the current
proceedings before court and in the absence of a legal representative.
Representation of the Municipality by Moh ale Incorporated
[23] It is now trite law that a challenge to a person's authority m ust be addressed through
the procedure contemplated in Rule 7(1) of the Uniform Rules of Court that states:
'(1) Subject to the provisions of subrules (2) and (3) a power of attorney to act
need not be filed, but the authority of anyone acting on behalf of a party may ,
within 1 O days after it has come to the notice of a party that such person is so
acting, or with the leave of the court on good cause shown at any time before
judgment, be disputed, whereafter such person may no longer act unless he
satisfied the court that he is authorised so to act, and to enable him to do so
the court may postpone the hearing of the action or application.'
[24] In the case of Rural Maintenance (Pty) Ltd and Others v Eskom Holdings SOC
Ltd and Anothe r6 the court reiterated that the purpose of Rule 7 is, one the one
hand to avoid cluttering the pleadings unnecessarily w ith resolutions and pow ers of
6 (2023/027739 ) [2023] ZAGP JHC 354 (20 April 2023)
16
attorneys and on the other hand to provide a safeguard to prevent a cited person
from repudiating the process and denying his or her authority for issuing the
process.
[25] The Plaintiff remained adamant that the Auditor General indicated in writing that
Mchale Incorporated was not authorised to represent the De fendants. The Plaintiff
presented a letter7 received from the Aud itor-General stating the following:
~s per various previous communications between yourself and my office, of
which the last was on 9 September 2024 where we indicated that we will
provide a response to the outcome of our resting of the population affected by
your request.
We audited the awards made to the panel of attorneys, which included Mohale
Incorporated, and found non-compliance matters which are reported in
paragraph 38 of our audit report, where we reported that appropriate evidence
could not be found that all contracts were awarded in accordance with the
legislative requirements. As a result of the non-compliance the payments
made to date to attorneys on the panel were classified as irregular expenditure
and included in the total amount of R432,4 million of irregular expenditure
incurred by the municipality.'
7 Contained on paginated page 256
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[26] On a plain reading of the letter allegedly obtained from the A uditor-General, this
Court does not share the view that it is clear evidence that Mchale Inc is not
authorised. It does how ever appear that certain attorneys retained on the panel
may be non-compliant, but the w ording of the letter does not lend itself to the
interpretation that specifically Mcha le Inc w as not properly appointed and therefore
lacks authority to represent the Defendants.
[27] The Court is fortified in its view insofar as a response to the initial Ru le 7 notice w as
in fact delivered by the Plaintiff as early as 17 February 2022. In this notice the
authority of Mr Mchale of Mcha le Incorporated w as already disputed. As the notice
w as delivered out of time , a Ru le 30A(1) Notice w as delivered by the 1 st and 2nd
Defendant resulting in the w ithdraw al of the R ule 7 Notice. Curiously enough, the
Plaintiff did not avail itself of the procedure contemplated in R ule 7(1) to the extent
that no leave w as hereafter obtained from the Court on good cause show n to
continue w ith the challenge.
[28] Be that as it may , this Rule 7 notice w as dealt w ith in detail in the judgment delivered
by the Honourable Mphah lele AJ on 8 April 2024 and w arrants no further analysis.
The Honourable Mphah lele AJ equally concluded that Mchale Inc is authorised to
represent the Defendants.
[29] In the absence of good cause being show n, this Court is not w illing to revisit this
issue. The letter from the A uditor-General is insufficient insofar as Mcha le Inc is
not implicated.
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[30] Consequently, this court is satisfied that Mcha le Inc (and Mr. Peter Mcha le) is
indeed duly appointed and authorised to represent the 1 st and 2nd Defendant in this
case.
Co sts:
[31] It is trite law that a successful party w ill only in exceptional circum stances be
deprived of its costs. In this Co urt's view, neither the Plaintiff nor the Defendant
were successful in their challenge to the other party's representative capacity.
Consequently, and in the interest of justice, the costs (and / or expenses justifiably
incurred as the case may be) of these proceedings will follow the outcome of the
ma in action in due course.
Order:
[32] In the result the following order is made:
32.1 It is declared that Mr. Phenyo Lekoma is entitled to represent the
Plaintiff in these proceedings and in the absence of a legal
representative;
32.2 It is declared that Mr. Peter Mohale of the firm Mohale Inc is duly
authorised to represent the Defendants in these proceedings.
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32.3 The costs of these proceedings challenging the authorities and I or
entitlement to represent the respective parties will follow the outcome
of the main action.
APPEARANCES:
FOR THE PLAINTIFF
INSTRUCTED BY
FOR THE 1sr AND 2N D
DEFENDANT
INSTRUCTED BY
M BRESLERAJ
ACTING JUDGE OF THE HIGH COURT ,
LIMPOPO DIVISION, POLOKWANE
Mr. Phenyo Lekoma
In person
Pretoria
phenyo@pimc-devcomm.co.za
Adv. JAL Pretorius
Mohale Incorporated
Polokwane
mohaleinc@gmail.com