IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
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CASE NO: 2024-015672
1. Reportable: No
2. O f interest to other judges: No
3. Revised
13 October 2025
WR IG H T J
In the matter between:
CUL TIVAR INVESTMENTS (Pty) LTD
and
SPECIAL INVESTIGATING UNIT
APPELLANT
FIRST RESPONDENT
THE MINISTER OF THE DEPARTMENT OF AGRICULTURE ,
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LAND REFORM AND RURAL DEVELOPMENT SECOND RESPONDENT
THE DIRECTOR-GENERAL: DEPARTMENT OF
AGRICULTURE, LAND REFORM AND
RURAL DEVELOPMENT THIRD RESPONDENT
THE DEPARTMENT OF AGRICULTURE, LAND
REFORM AND RURAL DEVELOPMENT FOURTH RESPONDENT
JUDGMENT – WRIGHT J
Introduction
1. The heading above is set out in the way the present application was launched.
Broadly speaking, and without making any finding, the above cited appellant,
Cultivar obtained a thirty year lease with the above cited fourth respondent, the
Department of Agriculture, Land Reform and Rural Development. That lease
became the subject of proceedings before a Special Tribunal established in
terms of section 2(1) of the Special Investigating Units and Special Tribunals Act
74 of 1996.
2. On 19 April 2023, Modiba J in her capacity as member of the Special Tribunal
handed down judgment.
3. The learned judge made the following order:
“ 1. The decision of the Minister of Rural Development and Land Reform to order
the lease agreement referred to in (2) below is declared irregular and unlawful;
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2. The lease agreement entered into between the Department of Rural
Development and Land Reform and the first respondent dated 11 January 2019
is declared irregular and unlawful.
3. The Tribunal Registrar is directed to convene a case management meeting
with the parties to determine the further conduct of the matter for the
determination of the appropriate consequential remedy in terms of s4(1)(c) read
with s8(2) of the SIU Act. “
4. On 15 May 2023, Cultivar delivered a notice of appeal, to a Full Court “ In the
High Court of South Africa, Gauteng Local Division, Johannesburg “. Under the
notice, Cultivar seeks the upholding of the appeal and the setting aside of the
order of Modiba J. Grounds of appeal are set out in some detail.
5. Cultivar did not seek leave to appeal.
6. Now, before me is an application under Uniform Rule 30 brought by the Special
Investigating Unit in which it seeks orders that Cultivar’s notice of appeal be
declared an irregular step and that it be set aside. Also sought is an order that
the matter be remitted to the Special Tribunal in order to finalize the procedure
envisaged in paragraph 3 of the order of Modiba J.
Legislation and Rules
7. Under section 8(7) of the Act “ Any party may appeal against a ruling, decision
or order of a Special Tribunal to the Provincial Division of the Supreme Court
which has jurisdiction and such an appeal shall be deemed to be an appeal
against a decision by a single judge of the Supreme Court: Provided that no
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appeal shall lie against any ruling, decision or order which, if made by the
Supreme Court, would not be subject to appeal. “
8. The Rules for Special Tribunals were published on 25 August 2020 in
Government Gazette 43647 under GN 449.
9. Rule 32(1) reads “ Any party may appeal against a ruling, decision or order of the
Tribunal, to the Provincial Division of the High Court which has jurisdiction in
terms of section 8 (7) of the Special Investigating Units and Special Tribunals
Act 74 of 1996 as amended. Such appeal shall be deemed to be an appeal to the
Full Court of that Provincial Division.”
10. Rule 32(2) reads “ No appeal shall lie against any ruling, decision or order of the
Tribunal which, if made by the High Court would not be subject to appeal.”
11. The relevant part of Rule 32(3) reads “ A party intending to appeal a judgment
and order of the Tribunal shall first apply for leave to appeal…”
12. Under Rule 32(10) “ The provisions of Rule 49 of the Uniform Rules of the High
Court relating to Civil Appeals to the Full Court shall apply mutatis mutandis to
the appeal proceedings from the Tribunal. “
13. Section 16(1)(a)(i) of the Superior Courts Act 10 of 2013 reads - “ Subject
to section 15 (1), the Constitution and any other law— (a) an appeal against any
decision of a Division as a court of first instance lies, upon leave having been
granted — (i) if the court consisted of a single judge, either to the Supreme Court
of Appeal or to a full court of that Division, depending on the direction issued in
terms of section 17(6) “ ( My emphasis).
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14. Given the conclusion reached below, it is preferable that I do not deal further with
these laws and their possible applicability.
Grounds under Uniform Rule 30
15. The SIU bases its application on two grounds.
16. Firstly, the order is as yet unappealable. It is alleged that the order would
become appealable only after the remedy referred to in paragraph 3 of the order
has been determined.
17. Cultivar suggests that this ground is bad in law. It says that a thirty lease has
been held to be irregular and unlawful. This is alleged to be a finding final in
effect. Cultivar’s argument proceeds that even if under paragraph 3 of the order it
were later to be held that the lease is not to be cancelled for whatever reason,
and even if it were to be ordered that rent must be paid for the full term, the
findings of irregularity and unlawfulness are discrete and determinative. The
argument proceeds that the Tribunal seized with determining a remedy would
need to take into account the judgment and order of Modiba J, unless set aside
on appeal. The argument continues that the judgment and order, as decided by
Modiba J or differently by a Full Court on appeal may well influence the
determination of the remedy.
18. The second ground relied on by the SIU is that even if the order is appealable,
leave to appeal is required. Cultivar argues that leave is not required. The
arguments on this point are intricate and require a close consideration of the law.
Prejudice
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19. The SIU alleges that it is prejudiced by the launching of the appeal without leave.
It says that it acts as the defender of proper administration of the affairs of state
and as protector of the public purse. It says that even if Cultivar was not involved
in any maladministration the lease falls to be cancelled. The SIU says that the
appeal is a delaying tactic, causing the life of the lease to continue to the
prejudice of proper administration and the public purse.
20. In Civil Procedure in the Superior Courts by Adv D Harms SC, the learned
author writes, at B30.3 “ When a party wishes to object to a notice given in terms
of section 3 of the Institution of Legal Proceedings against certain Organs of
State Act 40 of 2002,7 rule 30 is not the appropriate mechanism. The appropriate
course is either to object to the notice in terms of that Act, or to deliver a special
plea. Rule 30 is not intended to serve as a basis for an objection to procedural
irregularities in respect of other legislation.8 It is meant to deal with irregular
steps taken by parties during the course of litigation and where the irregularity
emanated from the inappropriate use of the rules of court.9 “ Footnotes 7, 8 and
9 read “ 7 Ntshingila and Others v Minister of Police 2012 (1) SA 392 (WCC). As
to the meaning of “legal proceeding”: Chetty t/a Nationwide Electrical v Hart NO
and Another [2015] 4 All SA 401 (SCA). 8 Cochrane v City
Johannesburg 2011 (1) SA 553 (GSJ) at par [33]. 9 Ibid at par [31] “
21. At B30.8 the learned author continues “ In order to succeed with the application,
the party who applies for the proceedings to be set aside has to suffer prejudice
relating to the continuation of the litigation”.4 “ Footnote 4 reads “ Pinro Building
& Steel Merchants (Edms) Bpk v Yawa [2003] 1 All SA 318 (C); Concrete 2000
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(Pty) Ltd v Lorenzo Builders CC t/a Creative Designs and Others [2014] 2 All SA
81 (KZD) at [36]–[37]. “
22. It would thus appear that the present Rule 30 application may be an incorrect
remedy.
23. I need not decide this latter point as, in any event, the SIU establishes no
prejudice. The present application would appear to delay matters, thus
exacerbating what the SIU says is prejudicial delay.
Other Considerations
24. Cultivar says that an application for leave to appeal would have been pointless
as the Tribunal has repeatedly ruled that leave is not required and that the
correct procedure is to appeal directly and as of right to a Full Court. It may be,
and I make no finding thereon, that Cultivar’s pessimism can’t detract from a
need to ask for leave if leave is otherwise required.
25. It is argued for Cultivar that a Full Court on appeal may itself consider its own
jurisdiction to hear the appeal, including the question of whether or not leave is
required and that it would be pointless now for a decision on appealability to be
made which would not bind the Full Court. In my view, this argument is well
made.
26. In addition, a Full Court will have in front of it the entire record of proceedings
before Modiba J, which I do not have. The record may be of relevance to the
questions of whether or not the order is final and whether or not leave is required.
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I am not seized w ith either an appeal or w ith an application for leave to appeal
but only w ith a narrow R ule 30 application.
27.A consequence of granting the application w ould be that I, sitting alone decide
that a Full Co urt may not hear the appeal as it has no jurisdiction to do so. In my
view , it w ould be preferable for a Full Court on appeal to decide this issue.
Costs
28. Cu ltivar seeks punitive costs. In my view , these are not w arranted. The SIU
reasonably raises interesting questions of law and procedure.
ORDER
1. The application is dism issed.
2. The first cited respondent, the Special Investigating Unit is to pay Cultivar's
costs, including those of two counsel. Scale C applies.
GC Wright
Judge of the High Court
Gauteng Division, Johanne sburg
HEARD 13 October 2025
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DELIVERED : 13 October 2025
APPEARANCES :
APPLICANT Adv RJ Raath SC
Adv D Mtsweni
Instructed by State Attorney
JvanSchalkwyk@siu.org.za
RESPONDENT Adv S Stein SC
Adv I Currie
Instructed by Elliott Attorneys
alex@blackboxlaw.co.za