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SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this
document in compliance with the law and SAFLII Policy
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
Case Number: 075714/2025
(1) REPORTABLE:
(2) OF INTEREST TO OTHER JUDGES:
(3) REVISED:
In the matter between:
K[…] S[…] Applicant
And
K[…] S[…] First Respondent
THE UNLAWFUL OCCUPIERS OF THE IMMOVABLE
PROPERTY AT PORTION 3[…] S[…] PLACE, B[…]
V[…] GOLF ESTATE, MIDRAND Second Respondent
BLUE VALLEY GOLF ESTATE
HOMEOWNERS ASSOCIATIONS Third Respondent
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Delivered: This judgment was prepared and authored by the Judge whose name is reflected
and is handed down electronically by circulation to the Parties / their legal
representatives by email and by uploading it to the electronic file of this matter on
CaseLines. The date for hand-down is deemed to be 17 October 2025.
JUDGMENT
BOTSI-THULARE AJ
Introduction
[1] This is an application for reconsideration of two court orders granted on an
urgent basis on 24 May 2025 (Strijdom J Order) and 29 May 2025 (Mooki J
Contempt Order). The reconsideration application is brought by Mr Mabena, the
second respondent , in terms of rule 6(12)(c) of the Uniform Rules of Court.
The Strijdom J Order includes the rule nisi sought to be made final by the
applicant.
[2] The second respondent argues that the Strijdom J Order was obtained ex parte
against him and on the basis of false information provided to the court by the
applicant. Furthermore, the Mooki J Contempt Order was also obtained in the
absence of the second respondent and on the basis of false information
provided to the court.
[3] In a nutshell, the applicant submits that both Court Orders were granted
erroneously for various procedural and substantive reasons. Accordingly, this
court ought to exercise the wide discretion that it has in such matters to set
aside both Court Orders. Lastly, the rule nisi ought not to be made final.
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[4] As her grounds for opposition of the reconsideration application, the applicant
argues that it must be stated that there were two options available to the
second respondent to oppose the Strijdom J Order. First, the second
respondent was supposed to have filed an affidavit showing cause why the
Strijdom Order should not be made final. Instead, the second respondent chose
to launch a separate reconsideration application, which the applicant opposes.
[5] Before dealing with the issues that arise from the above, it is apposite to first
provide a summary of the facts leading up to this reconsideration application.
Factual background
[6] In 2013, the applicant and the first respondent purchased the stand known as
3[…] S[…] Place, B[…] V[…] G[…] E[…], M[ …] (the Property). The applicant
and first respondent were married to each other in community of property on 25
April 2014, which marriage currently still exists. However, their marriage is
subject of the pending divorce proceedings which were initiated by the
applicant on 14 June 2019.
[7] In January 2025, the second respondent noticed that the Property was
advertised as being up for sale. After inspecting the property on no less than
four occasions, the second respondent offered to purchase the P roperty. It
should be noted that the second respondent did not offer to purchase the
Property in his personal capacity. He indicated that he was purchasing the
Property on behalf of a private company known as the Industrial Butcher (Pty)
Limited (Industrial Butcher). Hence, the Property was transferred into the name
of the Industrial Butcher on 23 May 2025. On the same day, the first and
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second respondents started making arrange ments for the second respondent
to move into the property.
[8] The applicant was not aware of the sale of the Property to the second
respondent. According to the applicant the sale of the property by the first
respondent without her knowledge was nothing else but fraud committed by the
first respondent. The applicant contended that the first respondent ’s fraudulent
intent is corroborated by the fact that he indicated on the offer to purchase that
he is unmarried. Further, this was clearly done to evade the obligation to obtain
marital consent to sell the property as required by section 15 of the Matrimonial
Property Act as they were married in community of property and joined owners
of the Property.
[9] The second respondent was unable to move into the property on 23 May 2025
despite having made arrangements with the first respondent. The reason for
this was that the belongings of the applicant and first respondent were still in
the Property. Ultimately, the second respondent managed to move into the
Property on 24 May 2025.
[10] On the same day, the applicant launched an urgent ex parte application in this
court (Urgent Application). The Urgent Application came before Strijdom J.
Strijdom J granted the Urgent Application in favour of the applicant in the
following terms (the Strijdom Order):
a. Pending the finalisation of the application, the applicant may not be
removed from the Property;
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b. Neither the first nor second respondent may remove the applicant or her
furniture from the Property;
c. The second respondent may not be allowed to move in to the Property,
pending the finalisation of the application; and
d. The Blue Valley Homeowners Association must restore the applicant's
access at the security gate.
[11] On 26 May 2025 the second respondent’s attorneys, after confirming that their
client received the Strijdom Order on the evening of 25 May 2025, requested a
copy of the entire application, which was subsequently sent to them by the
applicant’s erstwhile attorneys of record. On 27 May 2025 the applicant ’s
attorneys sought confirmation from the second respondent's attorneys if they
are going to comply with the Strijdom Order or not.
[12] The next day, the second respondent’s attorneys confirmed receipt of the
Strijdom Order with the applicant’s attorneys and stated that they are taking
instructions from their client. No tender of compliance was made on behalf of
second respondent.
[13] Therefore, the applicant launched an urgent contempt application (Urgent
Contempt Application) , which was also served on the second respondent by
way of email addressed to his attorneys. The Urgent Contempt Application was
heard ex parte by Mooki J.
[14] On 29 May 2025, Mooki J granted an order declaring the first and second
respondents in contempt of paragraphs 3, 4, 5 and 6 of the Strijdom Order. It
was also ordered that the first and second respondents must comply with
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paragraph 5 of the Strijdom Order within 24 hours (Mooki J Contempt Order).
For the sake of clarity, paragraph 5 was the order prohibiting the second
respondent from moving into the property pending the finalisation of the
applicant's application.
[15] The Mooki J Contempt Order was emailed to the second respondent’s attorney
of record on the same day it was obtained by the applicant (i.e. on 29 May
2015). On 30 May 2025, the second respondent launched an urgent application
to suspend the operation of the Mooki J Contempt Order. On 31 May 2025,
Potterill J granted the order for the suspension of the Mooki J Contempt Order
pending the finalisation of a reconsideration application, which the second
respondent had to institute by 3 June 2025 (Potterill J Order).
[16] On 3 June 2025, the second respondent launched the reconsideration
application in terms of which he seeks to reconsider and set aside the Strijdom
J Order and, as a consequent, Mooki J Contempt Order.
[17] It is common cause that the second respondent had already moved into the
Property before the granting of the Strijdom J Order. In other words, the second
respondent continued occupying the Property despite the Strijdom J Order.
Because of this reality, it appears that the applicant and second respondent
continued having to issues outside of the reconsideration application. In this
regard, on 19 June 2025 the applicant obtained an interim protection order in
terms of section 3(2) of the Protection from Harassment Act 17 of 2011, against
the second respondent (Interim Protection Order).
[18] On 19 July 2025, the second respondent was arrested. This was because of
him being in breach of the Interim Protection Order. On 20 July 2025, t he
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second respondent then launched an urgent application for the order of the
release of the second respondent from custody. On the same day , Teffo J
ordered that the second respondent must be released from custody (Teffo J
Order). She also ordered that the Interim Protection Order be suspended until
29 July 2025.
[19] With only the Mooki J Contempt Order being suspended by Potterill J, and
having due regard to the fact that the second respondent moved into the
property in contravention of the Strijdom J Order, which remained valid,
binding, and enforceable, a warrant of eviction was issued, whereafter the
second respondent launched an application in terms of which he sought relief
that the execution of the Strijdom J Order be stayed and suspended pending
the finalisation of the reconsideration application and/or the return date of the
order being 25 September 2025.
[20] Prior to the hearing of the reconsideration application, the applicant obtained a
writ of execution of the eviction of the second respondent from the Property
based on the Strijdom J Order. T he second respondent then launched an
urgent application in which he sought an order interdicting the applicant from
enforcing a writ of ejectment for the eviction of the second respondent from the
Property.
[21] This urgent application was heard by Swanepoel J on 13 September 2025. On
the same day, Swanepoel J made an order in the following terms:
“[1.1] The status quo in respect of Erf 3[…] B[…] V[…] G[…] E[…] (“the property")
shall be maintained pending the hearing of the matter on 25 September 2025;
[1.2] No person may evict the current occupiers of the property;
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[1.3] Time periods were set for the filing of papers in anticipation of the hearing
on 25 September;
[1.4] Costs were reserved.”
[22] Swanepoel J provided the reasons for his order on 26 September 2025. In his
reasons, Swanepoel J stated the following:
“[6] It was, in my view, appropriate to stay the writ for the following reasons:
[6.1] The Strijdom J order did not provide any legal basis for the applicant's
eviction. It simply prohibited the eviction of the first respondent from the time when
the order was granted onward, by which time the applicant had already taken
occupation. The order most definitely did not justify the issuing of a writ of
ejectment;
[6.2] The reconsideration application was imminent, at which time all of the
issues would be ventilated and determined. It was not in anyone's interests to
create more chaos by evicting a family shortly before the matter was to be heard.”
[23] On the same day that Swanepoel J provided the reason s for his order of
13 September 2025, the reconsideration application was heard on an urgent
basis before this court. After hearing, this court directed that the applicant and
second respondent’s counsel make written submissions in closing argument by
3 October 2025 and 8 October 2025 respectively. What follows is the summary
of the submissions made by counsel for both the applicant and second
respondent.
Parties’ Submissions
[24] The second respondent submits that this reconsideration application was
instituted urgently out of an abundance of caution so that it could be enrolled
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and determined on the same day as the return date for the Strijdom J Order. To
this end, the second respondent argues if the reconsideration application is
determined after the return date for the Strijdom J Order, then it will be
rendered moot. It is therefore necessary to determine both the finality of the
rule nisi in the Strijdom J Order and the reconsideration application on the
same date.
[25] The second respondent submits when the Strijdom J Order was granted, the
fact of second respondent’s ownership of the Property was not placed before
the court because the applicant was not aware of it at the time and because
she chose to bring the application ex parte. Accordingly, had the court been
aware of second respondent’s ownership of the Property, it would not have
granted the Strijdom J Order.
[26] Similarly, when the Mooki J Contempt Order was granted, the fact of second
respondent’s ownership of the Property was not placed before the Court
because the Contempt Application was not served personally on second
respondent at all hence the Mooki J Contempt Order was granted.
[27] On this basis, the second respondent submits that what is evident is the fact
that each court that has been made aware of his ownership of the Property has
found in second respondent’s favour. In this regard, the second respondent
pointed this court to the Potterill J Order, Teffo J Order and Swanepoel J Order.
[28] The second respondent argues that his family are innocent lawful occupiers of
the Property who have been caught up in the dispute between the applicant
and first respondent concerning the sale of the Property which the first
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respondent bought before they were married in community of property, and
which was sold by the bank due to non-payment of the bond.
[29] The second respondent submits that the true nature of applicant’s complaint is
that she has a claim against her soon to be ex -husband, such as for a portion
of the proceeds of the sale of the Property, for damages, or for the setting aside
of the registration of the Property. Instead of bringing any such claim or
challenging the sale and registration of transfer of the property in any way in the
more than six months since the transfer of the Property was registered, the
applicant has repeatedly sought to unl awfully evict the second respondent and
his family from the Property.
[30] The applicant has for more than six months pursued every avenue except a
formal challenge to the sale of the Property to allow her to take occupation of
the Property which, on Mr S […]’s version, was never her primary residence.
The applicant does not currently have any right in law to occupy the Property.
[31] It is thus inappropriate for the applicant to ask the Court to infer fraud on the
part of the second respondent in circumstances where no fraud is pleaded
against him in any of the papers, or to imply that such fraud (if it had been
pleaded and proven) could have any relevance to these proceedings.
[32] If the applicant is the victim of a fraudulent property sale then so is the second
respondent. If fraud is eventually alleged and proved in duly instituted
proceedings which challenge the lawfulness of the transfer of the property, then
the Court will determine what impact, if any, such fraud will have on the sale of
the property with due regard to the impact on the victims of the fraud. Similarly,
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the attempts by counsel for the applicant to infer fraud on the part of Mr S […]
through reference to the pleadings filed in the divorce action are inappropriate.
[33] The second respondent bought the Property through Industrial Butcher (Pty)
Ltd and is the lawful owner of the Property unless and until the sale of the
Property and the Deed of Transfer are set aside and the Registrar of Deeds is
ordered to amend his records accordingly.
[34] There is no action or application before any Court at this stage for an order
permitting cancellation of the Deed of Transfer. Accordingly, the second
respondent’s ownership of the Property is incontrovertible. That, with respect, is
the end of the matter. The second respondent has a clear right in law to occupy
the Property because the second respondent owns it. The applicant has not
demonstrated any right in law to occupy the Property. In those circumstances,
the Eviction Order cannot be confirmed and bot h the Eviction Order and the
Contempt Order must be reconsidered and set aside.
Applicant’s submissions
[35] The applicant submits that it must be stated that the reconsideration application
fails to make it out of the starting blocks because, as a basis to assert a right to
occupy the Property and to reconsider the orders granted against him, the
second respondent incorrectly asserts that he is the owner of the Property,
when the evidence clearly demonstrates that the Industrial Butcher (Pty) Ltd
bought and paid for the property and is currently the title holder.
[36] Insofar as the justification for bringing an ex parte application is concerned, the
urgent founding affidavit clearly explains the necessity of bringing it without
notice. This is contained in paragraph 5.7 of the founding affidavit, which reads
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as follows: “the respondents were asked on numerous occasions to provide
proof that the house was sold legally; instead, they refuse and want to apply
force to remove myself and the minor children”
[37] Lastly, regarding the allegation that the applicant was not occupying the
property, the applicant and her children were, in fact, occupying the property.
Here the second respondent faces the fundamental difficulty that he must
concede that he has no personal knowledge of the living arrangements of the
applicant, first respondent, and their minor children before 23 May 2025.
[38] To substantiate this ground, the second respondent entirely relies on the
version of the first respondent, who, as has been demonstrated above, is a
fraudster who has no qualm lying under oath and has been conniving to reach
his ultimate goal, which is for the applicant to forfeit her interests in the property
that serves as their children’s primary residence.
[39] The second fundamental difficulty on this ground is that because there is a
factual dispute (i.e., the applicant contends that she occupied the property with
her children), Plascon Evans requires the court to accept the applicant's
version in the face of a genuine factual dispute.
[40] The applicant submits that should there be any factual disputes, those disputes
must be resolved with the application of the principles in the well -known
judgment of Plascon -Evans, which obliges the court, in the absence of a
version by the applicant that is capable of being rejected on the papers, to
accept the applicant’s version of the facts.
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[41] Consequently, all the grounds raised by the second respondent as to why the
Strijdom J Order should be reconsidered are without merit and stand to be
rejected completely.
[42] The applicant submits that the basis for impeaching the Mooki J Contempt
Order was twofold. One, the Strijdom J Order was not served on the second
respondent. Two, the order is egregious because it allows all occupiers to be
present, which would include the second respondent’s wife and children.
[43] The uncontested facts demonstrate that at this juncture there were still
belongings of the applicant and first respondent in the property, and despite an
order preventing the second respondent from moving into the property, he
persisted, nonetheless.
[44] Thus, the true facts demonstrate that even on the second respondent’s own
version, he was in breach of a valid, binding, and enforceable court order when
he persisted to move into the property despite being ordered not to do so. In
careful scrutiny of all the affidavits filed on record, the second respondent
proffers no explanation why, despite having knowledge of the Strijdom J Order,
the day after it was granted, he proceeded to move into the property
irrespective.
[45] Accordingly, the Mooki J Contempt Order cannot be reconsidered because it
has been demonstrated that it came to the knowledge of the second
respondent, and on his own version he was in wilful contempt of the order.
[46] The second important proposition is that the second respondent cannot now
claim the benefit of his unlawful conduct by arguing that he has been in
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occupation of the property for many months; therefore, it would inconvenience
him and his family to vacate it. The difficulty for the second respondent is that
he became an unlawful occupier of the property when he moved into it in
contravention of a valid, binding, and enforceable court order that prohibited
him from doing so. He cannot claim a benefit of his contemptuous conduct. One
pauses to mention that the Strijdom J Order was only suspended in September
2025.
[47] The reconsideration application stands to be dismissed with costs. The Strijdom
J Order was justified in all respects, and the Mooki J Contempt Order was
equally justified since the second respondent was in contempt of the Strijdom J
Order.
[48] In the interest of justice, bearing in mind that there are minor children involved
on both sides, it is submitted that both orders, upon being confirmed, must be
qualified or suspended for at least 30 days (which can be extended to the
extent that the court wishes to do so, having due regard to the interest s of the
minor children ) to allow the second respondent to obtain alternative
accommodation. This has been provided for in the applicant’s proposed draft
order.
Issues
[49] Against this background, this court is required to resolve the following issues:
a. Whether the reconsideration application is urgent.
b. If so, whether the Strijdom J Order, and by extension, the Mooki J
Contempt Order, should be reconsidered and set aside.
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[50] I deal with each of the issues, as well as other ancillary issues, below.
Whether the reconsideration application is urgent
[51] The fundamental feature of our justice system is the audi alteram partem rule
which is trite in our law. This maxim is derived from Latin and it means let the
other side be heard as well. That said, however, our legal system provides for
occasions when this principle may, in the interests of justice, be overlooked
temporarily. It is for this reason that rule 6(12)(a) of the Uniform Rules of Court
is sometimes invoked in with respect to abridgment of time limits prescribed by
the rules.
[52] Rule (6)(12)(a) provides as follows:
“In urgent applications the court or a judge may dispense with the forms and service
provided for in these rules and may dispose of such matter at such time and place and
in such manner and in accordance with such procedure (which shall as far as
practicable be in terms of these rules) as it deems fit.”
[53] In urgent applications, brought in terms of rule 6(12)(a), the applicant must
show that he will not otherwise be afforded the substantial redress at the
hearing in due course.
1 The degree of the relaxation of the rules and of the
ordinary practice of the court depends upon the degree of urgency of a case.2
[54] Having said that, it should be noted that the Uniform Rules of Court allows the
respondent who is negatively affected by an order which was granted in their
1 See Luna Meubel Vervaardigers (Edms) Bpk v Makin (t/a Makin’s Furniture Manufacturers)
1977 (4) SA 135 (W) at 137F; AG v DG 2017 (2) SA 409 (GJ) at 412A.
2 See Minister of Water Affairs and Forestry v Stilfontein Gold Mining Co Ltd 2006 (5) SA 333
(W).
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absence and in terms of rule 6(12)(a) launch a reconsideration application
under rule 6(12)(c).
[55] Rule 6(12)(c) of the Uniform Rules of Court which offers a reconsideration
application reads as follows:
'A person against whom an order was granted in such a person's absence in
an urgent application may by notice set down the matter for reconsideration of
the order’.
[56] Rule 6(12)(c) serves as a mechanism to allow the court to hear from the
affected party, ensuring a fair hearing and correcting any injustices or
oppression resulting from the initial ex parte order. The rule allows the court to
reconsider, vary, or discharge the original order after hearing arguments from
both sides, with the dominant purpose of achieving justice and full ventilation of
the controversy.
Application and interpretation of Rule 6(12)(c) by the courts
[57] It is trite that the overriding purpose of rule 6(12)(c) is to afford an aggrieved
party a mechanism designed to redress imbalances in, and injustices and
oppression flowing from an order granted as a matter of urgency in his
absence.
3 In ISDN Solutions (Pty) Ltd v CSDN Solutions CC the High Court
stated the following regarding rule 6(12)(c):
“It affords to an aggrieved party a mechanism designed to redress imbalances in,
and injustices and oppression flowing from, an order granted as a matter of
urgency in his absence. In circumstances of urgency where an affected party is
3 See Lourenco v Ferela (Pty) Ltd (No 1) 1998 (3) SA 281 (T) at 290E –H; National Director of
Public Prosecutions v Braun 2007 (1) SA 189 (C) at 194B and 197C–D.
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not present, factors which might conceivably impact on the content and form of
an order may not be known to either the applicant for urgent relief or the Judge
required to determine it”.4
[58] Its rationale is to address the actual or potential prejudice because of an
absence of audi alteram partem when the order was made in the absence of
the respondent.5
[59] A court that reconsiders any order in terms of rule 6(12)(c) should do so with
the benefit not only of argument on behalf of the party absent during the
granting of the original order but also with the benefit of the facts contained in
affidavits filed by all the parties.
Urgency in reconsideration applications
[60] Rule 6(12)(c) itself contains no internal directive regarding urgency. The rule
simply requires that reconsideration be set down on notice. The rule is a sub-
rule to rule 6(12) which provides in 6(12)(a) for urgent applications. As a matter
of construction, it seems that a party seeking a reconsideration under 6(12)(c)
is required, if it wishes that the reconsideration be dealt with urgently, to provide
a basis justifying an urgent hearing for the reconsideration.
[61] This is in line with the reasoning of the High Court in Joint Venture Comprising
Gorogang Plant Razz Civils v Infiniti Insurance Ltd
6 where it is stated that:
“An application for reconsideration is not urgent for the purposes of rule 6(12)
simply because an order was granted in the urgent court. This means that, in the
4 1996 (4) SA 484 (W) at 486H-I.
5 Industrial Development Corporation of South Africa v Sooliman 2013 (5) SA 603 (GSJ) at para
10; Farmers Trust v Competition Commission 2020 (4) SA 541 (GP) at para 23.
6 [2024] ZAGP JHC 1048 at para 71 (15 October 2024).
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absence of demonstrable prejudice in the time between when an application may
be heard before an urgent court and in the ordinary course, a party seeking a
reconsideration must set out the prejudice that will ensue. The threshold is the
same whether in an application for reconsideration or when approaching the
court under rule 6(12)(a). In both instances, the parties seeking relief must set
out in clear terms facts duly supported that will pass the threshold of ‘absence of
substantive relief’ if the matter is not heard before the Urgent court.”
[62] Similarly, in Sheriff Pretoria North East v Flink and Another7 it was observed:
“Nothing in rule 6(12)(c) suggests that such a respondent would be entitled to
enrol the matter for reconsideration again on an urgent basis merely because the
order had been obtained on an urgent basis. A proper case will have to be made
out independently for the urgency of reconsideration of the order.”
[63] The High Court in Joint Venture Comprising Gorogang Plant Razz Civils and
Others correctly stated, after endorsing the proposition that a reconsideration
application is not automatically urgent, that it was:
“…not inclined to strike this matter from the roll and [instead] preferred to
address the merits of the matter as all the papers are before me, [because] I
have heard full argument in relation to both the procedural aspects and the
merits and therefore there is no good reason to burden another court in the
circumstances.”
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[64] The facts in this matter are that the Strijdom J Order was obtained ex parte. It
was thus granted in the absence of the second respondent. Similarly, the Mooki
J Contempt Order was also granted in the absence of the second respondent.
7 [2005] JOL 14761 (T).
8 [2024] ZAGP JHC 1048 at para 6.
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The reason for all these was as a result of the second respondent not being
made aware of these ex parte applications. These meant that only the
applicant’s version was considered by the court in both two ex parte
applications. In any event, the Strijdom J Order was also accompanied by the
rule nisi which is ripe for hearing as it was meant to be made final on 25
September 2025.
[65] It is therefore, in my view, advisable to follow the same approach adopted in
Joint Venture Comprising Gorogang Plant Razz Civils and Others because,
even if the case for urgency advanced by the second respondent for
reconsideration is somewhat limited, it is nonetheless a more appropriate use
of judicial resources, and a more appropriate balancing of the rights of the
parties to consider the application on the merits than to ascribe strictly to
procedural rules relating to urgency.
[66] Accordingly, considering the context and history of this matter, I am of the view
that the merits regarding the validity of the sale of the Property to the second
respondent requires to reach finality, especially because the contestation
between the second respondent and applicant affect minor children of both
parties. It is therefore in the interest of justice that this court should adjudicate
on the merits in this matter as a matter of urgency.
Whether the Strijdom J Order, and by extension, the Mooki J Contempt Order,
should be reconsidered and set aside
[67] On the merits, the second respondent submits that both Court Orders were
granted erroneously for various procedural and substantive reasons.
Accordingly, this court ought to exercise the wide discretion that it has in such
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matters to set aside both Court Orders. Lastly, the rule nisi ought not to be
made final.
[68] I agree with the second respondent that the Strijdom J Order must be set aside.
It is not disputed that the second respondent is the registered owner of the
Property through Industrial Butcher (Pty) Ltd, a company of which he is the sole
director. It follows therefore that the second respondent and his family have a
right to occupy the Property because he owns it.
[69] To this end, it is worth stressing the best evidence for proof of ownership of
immovable property is the Title Deed.
9 The Deed of Transfer is before this
court. In terms of the Deed of Transfer , Industrial Butcher (Pty) Ltd is the
registered owner of the Property. In terms of section 6 of the Deeds Registries
Act 47 of 1937, no Deed of Transfer may be cancelled by the Registrar of
Deeds except upon an order of court.
[70] On the other hand, the applicant has not pleaded or proven ownership of the
Property. She has also not claimed any limited real rights over the Property
(such as a right to habitation) . The applicant has also failed to prove that she
has a personal right to occupy the Property (such as through a contract) or any
statutory right of residence or occupation of the Property. What the applicant
alleged in contesting the second respondent’s ownership of the Property is that
the first respondent fraudulently or illegally sold the Property to the second
respondent.
9 Goudini Chrome (Pty) Ltd v MCC Contracts (Pty) Ltd 1993 (1) SA 77 (A) at 82B.
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[71] Even if it were appropriate in these proceedings to consider the lawfulness of
the sale of the Property to the second respondent (which it is not because that
is not the cause of action before this Court), there is no basis in the papers for
any finding of fraud because it has not been pleaded. It would therefore be
inappropriate for this court to infer fraud on the part of the second respondent in
circumstances where no fraud is pleaded against him in any of the papers, or to
imply that such fraud (if it had been pleaded and proven) could have any
relevance to these proceedings.
[72] For these reasons , I am of the considered view that the second respondent’s
ownership of the Property is undisputable. Further , the applicant has no right in
law to demand that the second respondent be evicted from the Property or to
demand occupation of the Property.
[73] It follows therefore that t he Mooki J Contempt Order cannot remain since this
court has now concluded that the Strijdom J Order must be set aside. In other
words, since the Strijdom J Order is set aside it follows therefore that the Mooki
J Contempt Order must also be set aside.
[74] Lastly, the conclusion reached in this judgment means that there is therefore no
basis for this court to decide on whether the rule nisi should be made final. In
other words, t he setting aside of the Strijdom J Order means that whether the
rule nisi should be made final becomes a none issue.
Costs
[75] The general rule in matters of costs is that the successful party should be given
his costs, and this rule should not be departed from except where there be
good grounds for doing so, such as misconduct on the part of the successful
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party or other exceptional circumstances. The second respondent has been
successful in this matter. As a successful party, I am of the view that the costs
should follow the results.
[76] Having said that, the only issue that this court needs to decide is to what extent
is the applicant liable for the second respondent’s costs. In this regard, t he
second respondent submits that this court should grant him t he costs of both
the Strijdom J Order and Mooki J Contempt Order including the costs of
counsel because both orders were sought on an ex parte basis where there
was no justification for an ex parte hearing, nor was any case made for an ex
parte hearing or a hearing in the absence of the cited respondents. He argues
that t he applications were an abuse of process . I disagree with the second
respondent on this point. The second respondent cannot be entitled to costs for
the Strijdom J Order and Mooki J Contempt Order when he did not participate
in those proceedings.
[77] Secondly, the second respondent submits that he instituted the Suspension
Application which was heard Swanepoel J to suspend the implementation of
the Mooki J Contempt Order. The application was successful. To this end, the
Swanepoel J provided that costs of the Suspension Application are costs in the
cause, so if this reconsideration application is successful, it is appropriate that
costs follow the result. I agree with the second respondent on this point.
[78] Against this background, t he applicant should therefore pay the second
respondent’s costs in this reconsideration application and the Suspension
Application on the attorney and own client scale, including the costs of counsel.
Order
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[79] In the result, I make the following order:
1. The order granted by Strijdom J on 24 May 2025 under the above case
number is substituted with the following order:
“The application is dismissed with no order as to costs”
2. The order granted by Mooki J on 29 May 2025 under the above case
number is substituted with the following order:
“The application is dismissed with no order as to costs”
3. The Applicant is ordered to pay the second respondent’s costs in this
reconsideration application and the Suspension Application on the
attorney and own client scale, including the costs of two counsel.
__________________________________
MD BOTSI-THULARE
ACTING JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
Date of Hearing: 25 September 2025
Date of Judgment: 17 October 2025
Appearances:
Counsel for the Applicant: Adv M Louw
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Instructed by: Magagane Attorneys Inc
271 Francis Baard Street
Pretoria
Counsel for the Second Respondent: Adv K Harding-Moerdyk
Instructed by: Taleni Godi Kupiso Inc
c/o T.F Matlakala Attorneys Inc
465 Mackenzie Street
Menlo Park
Pretoria
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