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IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
Case number: 34426/2014
In the matter between:
EZEKIEL PHETOLA MAENETJA N.O. Applicant
and
MATHABATHE ROSINA MARODI First Respondent
UNLAWFUL OCCUPIERS OF UNIT 1[...], W[...] Second Respondent
SEBOPE SHADRACK MARODI Third Respondent
Neutral citation:
Coram: E Botha AJ
Heard: 8 September 2025
Decided: 20 October 2025
Summary:
___________________________________________________________________
ORDER
___________________________________________________________________
1. The case is postponed sine die for the leading of evidence on the disputes of
fact in accordance with the order of Her Ladyship Ms Justice Malopa -Sethosa
J dated 20 February 2019.
2. The applicant is authorised and ordered to forthwith bring this order and that
of Malopa -Sethosa J referred to in paragraph 1, to the attention of the
following parties by delivering the two orders, together with copies of the
notice of motion, founding affidavit, first respondent’s answering affidavit and
replying affidavit, together with all their annexures, in the following manner:
2.1. On the second respondent, any person who is currently occupying Unit 1[...],
W[...] Sectional Title Scheme, 1[...] J[...] Drive, Silverton, Gauteng, by the
Sheriff of the High Court or his or her deputy ( “the Sheriff”), by delivering it in
terms of Uniform Rule 4(1)(a)(i) or, should personal service not be reasonably
possible, in terms of (ii);
2.2. On the third respondent, by delivering it to the address of his attorney or, if he
is no longer represented by an attorney, by delivery thereof by the Sheriff in
terms of Uniform Rule 4(1)(a)(i) or (ii); and
2.3. On the City of Tshwane Metropolitan Municipality , by delivery by the Sheriff in
terms of Uniform Rule 4(1)(a)(viii).
3. The order in paragraph 2 shall not replace or derogate any party’s rights or
obligations in terms of Section 4 of the Prevention of Illegal Eviction and
Unlawful Occupation Act, 1998.
4. If and once the order in 2 is complied with, the applicant, or should he fail to
do so any other party, may approach the office of the Deputy Judge President
for a directive in respect of the hearing of the case.
5. The costs consequent upon the enrolment of the case on the opposed motion
roll of 8 September 2025, together with any wasted costs occasioned by the
postponement thereof, and the costs of effecting service as provided for in the
order in paragraph 2, are reserved.
___________________________________________________________________
JUDGMENT
___________________________________________________________________
E BOTHA AJ:
Introduction
[1] This opposed application for eviction has a protracted history. If one considers
the relative simplicity of the basis for the relief and the defences raised, the course it
has taken appears needlessly complex. This is made worse by the fact that there are
has taken appears needlessly complex. This is made worse by the fact that there are
documents that should be before court that are missing and n one of the parties
appears to be able to find them , or give a n explanation as to why they cannot be
found.
[2] In 2019 the case was on the opposed motion roll of Molopa-Sethosa J. She
held that the re were disputes of fact that could not be resolved on the papers that
had to be referred for evidence. Six years later, the case is no closer to being
finalised than it was then. It is not surprising that when the case was before the court
again on 8 September 2025, it could not be finalised.
[3] The two parties that were before court agreed with one another that the case
was in the wrong court, and that it could not proceed. They provided the court with a
draft interlocutory order as to how they thought the case should be dealt with going
forward. They differed about what an appropriate cost order should be.
[4] The question is whether the court should at the instance of some parties vary
an order referring an application for evidence in the absence of other parties whose
interests may may be adversely affected by the proposed order.
Background
[5] The first and third respondents are the owners of a residential unit in respect
of which the applicant seeks to make out a case for eviction. They were married in
community of property, but later divorced. The applicant is an attorney. In 2011, after
first and third respondents’ divorce, Rabie J granted an order appointing the
applicant as the liquidator to divide the joint estate. In 2014 the applicant brought this
application for eviction in his capacity as liquidator.
[6] The applicant alleges that the first respondent and other persons occupy the
property unlawfully . The first respondent alleges that she is in lawful occupation.
There are other disputes between them that are immaterial for present purposes.
Whether the first respondent’s occupation of the property is lawful, or whether any
occupation of the property should stand in the way of the applicant dividing the
estate, are questions that have to be left for another day.
[7] Over the course of years, the case has been on a number of different rolls in
[7] Over the course of years, the case has been on a number of different rolls in
this court. Sometimes orders were made. Sometimes the case was struck from the
roll. Sometimes the case did not proceed because someone did not do what they
had to do to ensure that it could proceed. Much of what happened over the course of
more than a decade is unclear.
[8] On 20 February 2019 the case was set down for hearing on the opposed
motion roll, where it served before Malopa-Sethosa J. She made an order referring
the case for oral evidence which reads as follows (“the order” or “Malopa-Sethosa J’s
order”):
“1. This application must be referred for oral evidence.
2. No cost order.
3. There are disputes in the application.”
The enrolment of the case
[9] About ten years after the application was launched and about five years after
the order, the applicant set the case down for hearing on the trial roll of 7 June 2024.
The case never proceeded. It is not apparent from the court file why the case was
not heard on that day. The advocate for the applicant, Mr Baloyi, informed the court
that the case was never finally enrolled, but he could not provide more detail.
[10] Despite the terms of the order and the applicant’s effort to have it heard on
the trial roll, the applicant then applied for the case to be allocated for a hearing on
the opposed motion court roll. This eventually led to the enrolment on the opposed
motion roll of 8 September 2025.
[11] This seems not to have bothered anyone . That is until the advocate for the
first respondent, Mr Trumpie, raised it in heads of argument and a practice note in
the week before the hearing . Mr Baloyi says the applicant was initially intent on
proceeding. This is reflected in his heads of argument practice note, where there is
no reference to the order; no indication that evidence would be led; and it is indicated
that the argument before this court would endure for an hour . It says nothing about
the order of Molopa-Sethosa J . During the course of the hearing the court was
informed that these two parties agreed that the case would have to be postponed.
The parties before this court
[12] When the case was heard, the re were a number of concerns . Amongst them
was the question whether all the parties had received notice that the case was set
down. Although there is a notice of set down that was filed by the applicant, there is
no evidence that it was served on any of the parties. Only the applicant and the first
respondent w ere before court. There is no evidence that the order of Malopa -
Sethosa J or any notice in terms of Section 4(2) 1 had been served either. Although
there is more than one application for an order directing a manner of service in terms
of Section 4(4), no such order can be found.
[13] There is doubt whether the City of Tshwane Metropolitan Municipality was
ever joined. The application definitely commenced without the municipality being a
party. The first respondent had taken the point that it ought to have been joined in
her answering affidavit . At some point, the parties added a description of the
municipality to the heading of the papers . The description was also included in the
heading of some orders, including Malopa -Sethosa J’s order. Despite this, there is
no evidence before court that there was ever an order joining the municipality, nor is
there any evidence of a complete copy of the papers being delivered to the
municipality.
[14] The applicant and the first respondent prepared and handed up a draft order.
It provided for a postponement of the case, setting a timetable for the filing of
pleadings, the holding of a pre -trial conference and so forth (“the proposed order” ).
This, they submitted, was the preferable route to take in light of J’s order . They
could not agree on the appropriate cost order. The applicant asked for the costs to
be reserved, whereas the first respondent asked for the applicant to pay the costs
due to the erroneous enrolment. Mr Baloyi submitted that it was his instructions that,
despite the order, and despite the applicant’s prior efforts to enrol the case for a
despite the order, and despite the applicant’s prior efforts to enrol the case for a
hearing on the trial roll, his attorney was advised by the Registrar that the case had
to be enrolled for a hearing in the opposed motion court.2
1 Section 4(2) of the Prevention of Illegal Eviction and Unlawful Occupation of Land Act , 19 of 1998
(“PIE”).
2 It was only at the time of writing the judgment that it was realised that the court had not asked whether the
reference to the attorney was a reference to the applicant or another attorney at the applicant’s firm.
[15] The parties addressed the court in respect of the appropriate order in respect
of the referral for evidence, the joinder of the municipality, costs, and the notice of
set down . The court was not immediately satisfied that it could make any of the
orders requested by these two parties. The parties were informed that judgment
would have to be reserved , and they were asked whether they wished to be heard
again in the event of it becoming apparent to the court that a different order ought to
be made . Both Mr Baloyi and Mr Trumpie indicated that, in such an event, the ir
clients would not want an opportunity to be heard again. Judgment was reserved.
Does the court have the power to vary the order referring the matter for evidence?
[16] Molopa-Sethosa J ’s order is final and enforceable .3 It is not for these two
parties or this court to vary it, unless such variation is done in a recognised manner. 4
Neither of the parties applied for a formal variation of the order.
[17] The authority that provides for a court to reconsider, rescind or vary its own
interlocutory order does not apply here.5 Even in such a case, a court can only do so
on good cause shown. There is not sufficient cause to do so now.
[18] There is authority for the proposition that a court may depart from the order,
decline to hear oral evidence, and to decide the case on the papers . That it is not a
step that courts take lightly,6 and one that was not open to the court in this case.
An interlocutory order in the absence of affected parties?
[19] The general principle is that a court cannot grant an order in the absence of a
party who has a direct and substantial interest in the order, unless that party has
waived its right to be heard. 7 Whether a party has such an interest in the order
sought by another is determined by the question whether t he former’s rights or
interests may be adversely affected by the order.8
interests may be adversely affected by the order.8
3 See Department of Transport v Tasima (Pty) Ltd 2017 (2) SA 622 (CC) at para176 to 182 for the
general principles in respect of the enforceability of orders.
4 In terms of Uniform Rule 42(1) or the Common Law.
5 See, for example, Duncan NO v Minister of Law and Order 1985 (4) SA 1 (T) at 2E-J and the cases
cited by van Dijkhorst J.
6 Wallach v Lew Geffen Estates CC 1993 (3) SA 258 (A) at 262I and 263H.
7 Amalgamated Engineering Union v Minister of Labour 1949 (3) SA 637 (A) at 659.
8 Gordon v Department of Health, Kwazulu-Natal 2008 (6) SA 522 (SCA) at para [9].
[20] It is one thing if it can be shown that a party has proper notice and chooses
not to be heard, or if it does not make a determined effort to have its case heard, 9
but that is not the case here. Here, there is no evidence that the notice of set down
was delivered. There is also no evidence that a Section 4(2) notice was served. PIE
provides substantial, as well as procedural protection against eviction. 10 Compliance
with Section 4 is peremptory, and service of the Section 4(2) notice is intended as an
additional notice of forthcoming eviction proceedings. 11 Here, the occupants of the
property do not have this protection.
[21] Accordingly, properly posed, the question is whether the proposed order may
adversely affect the rights of the second and third respondents. If so, it cannot be
granted in their absence. The answer to the question requires and evaluation of the
order and the proposed order.
Evaluating and comparing the order and the proposed order
[22] Where an application cannot properly be decided on affidavit , the court may
dismiss the application or make an order it deems fit to ensure a just and expeditious
decision.12 Usually, the court takes one of three avenues. First, it may dismiss the
application. Second, it may order the parties to go to trial. Third, it may order oral
evidence in terms of the rules.
[23] The order provides for the third avenue , that of referral for oral evidence . It
has been held that this is the avenue that will ordinarily be followed if one or a few
disputes cannot be determined on the affidavits. 13 The order does not contain a
formulation of what those disputes are that have to be decided , or whose evidence
9 Zuma v Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption
and Fraud in the Public Sector Including Organs of State and Others (CCT 52/21) [2021] ZACC 28;
2021 (11) BCLR 1263 (CC) (17 September 2021) at para 61.
10 Ndlovu v Ngcobo; Bekker v Jika 2003 (1) SA 113 (SCA) at para 1.
10 Ndlovu v Ngcobo; Bekker v Jika 2003 (1) SA 113 (SCA) at para 1.
11 Cape Killarney Property Inv (Pty) Ltd v Mahamba 2001 (4) SA 1222 (SCA) at para 11 to 13.
12 Rule 6(5)(g) provides “Where an application cannot properly be decided on affidavit the court may
dismiss the application or make such order as it deems fit with a view to ensuring a just and
expeditious decision. In particular, but without affecting the generality of the aforegoing, it may direct
that oral evidence be heard on specified issues with a view to resolving any dispute of fact and to that
end may order any deponent to appear personally or grant leave for such deponent or any other
person to be subpoenaed to appear and be examined and cross -examined as a witness or it may
refer the matter to trial with appropriate directions as to pleadings or definition of issues, or otherwise.”
13 Atlas Organic Fertilisers (Pty) Ltd v Pikkewyn Ghwano (Pty) Ltd 1978 (4) SA 696 (T) at 698G
will have to be led to decide them .14 In the exercise of her discretion, 15 Molopa-
Sethosa J ordered that evidence would be led on those disputes on the papers
before her at the time. It has been held that it is preferable that a court ordering a
referral for evidence directs whose evidence will be required.16 However, the fact that
the order does not contain such a direction does not mean that the parties may call
any witness they please. The parties are bound to those witnesses who deposed to
affidavits, and they may only call other witnesses with the leave of the court. 17 If
anything else was intended, the order would have said so. It cannot be understood in
any other way. The effect of the order is that the case had to be set down for
hearing; that the disputes were defined by the affidavits; that evidence would be
limited to the disputes on the papers at the time; and that only those who deposed to
affidavits would be able testify, unless a court ordered otherwise.
[24] Where there is a referral for trial , a court brings about what the dispute
needed in the first place, by ordering an action procedure with the benefit of
hindsight.18 That is the avenue that the applicant and the first respondent tried to
follow before this court through the proposed order. Contrary to the path determined
by the order, this would open up the possibility of supplementing the papers,
broadening the issues , introducing new evidence through discovery , and calling
other witnesses. This avenue has understandably been described as
‘disproportionately costly and cumbersome’.19
[25] Seen in this light of the comparison, the adverse effect on the interests of the
other parties becomes clear. The adverse effect is not only procedural, but it may be
substantial. Expanding on or broadening the disputes, allowing for further discovery,
or allowing further evidence or witnesses may lead to a different result than would
or allowing further evidence or witnesses may lead to a different result than would
have been the case if the leading of evidence was limited to the existing disputes or
the deponents’ evidence.
14 See, for instance, Standard Bank of SA Ltd v Neugarten and Others 1987 (3) SA 695 (W)
(Neugarten) at 699E-H, with reference to Combrinck v Rautenbach and Another 1951 (4) SA 357 (T)
(Combrinck).
15 Metallurgical & Commercial Consultants (Pty) Ltd v Metal Sales Co (Pty) Ltd 1971 (2) SA 388 (W)
at 296D-E.
16 See, for instance, Neugarten at 699E-H, with reference to Combrinck supra.
17 Combrinck supra at 359F-H.
18 Neurgarten at 699B-D.
19 Ibid.
[26] There is no assurance that the second and third respondents knew of the
hearing before this court or, in fact, whether they knew of anything that happened
before. They could be under the impression that the case was going to be
determined on the basis of the papers before court , or they could be under the
impression that the order allows for evidence to be led by the deponents on the
existing disputes of fact. They may well have been satisfied with whatever the result
would be in either of these scenarios. Considering the effect of the proposed order
and the adverse effect on their interests, it may also be that they may have felt
differently about coming to court if they had known what the proposed order was.
Also, considering the time that has elapsed, they may be under the impression that
the application was unsuccessful , or that it died a slow death. There may be other
occupiers who know nothing of any of this. There is simply no way of knowing.
[27] In all the circumstances and for all of the aforesaid reasons, the court cannot
grant the proposed order.
An appropriate order
[28] Having concluded that the proposed order cannot be granted, the question is
what an appropriate order will be in the circumstances.
[29] In the circumstances of this case and on the evidence before the court , an
appropriate order must address at least three points . First, it must give effect to the
order of Malopa-Sethosa J. Second, it must ensure that the rights and interests of all
interested parties are adequately protected. Third, it must provide for a mechanism
that will ensure a just and expeditious determination of the disputes between the
parties.
Costs
[30] The two parties before court were at odds about what an appropriate cost
order will be . The first respondent submitted that the applicant must pay the costs,
whereas the applicant submitted that the costs must be reserved . Where the issues
relating to interlocutory costs are clear, the court seized with the matter should not
avoid deciding them by leaving the task to another court. 20
[31] The essence of the applicant’s argument is that he is not to blame for the
case being on the wrong roll, because the Registrar directed him to enrol it as an
opposed motion. The essence of the first respondent’s argument is that, whatever
the reasons may be, the applicant enrolled the case on the wrong roll and that the
applicant must carry the costs caused by the postponement. The first respondent’s
argument has some merit. The applicant is dominus litis and he set the matter down.
Ordinarily, he will bear responsibility for any error in enrolment. Even if the Registrar
did advise the applicant to proceed as he did, that advice does not automatically
absolve him of liability.
[32] Whatever the explanation, the first respondent cannot be blamed for the
matter being enrolled. If the applicant is found to be at fault, he should ordinarily bear
the costs; if neither party is at fault, the proper order would be that costs follow the
cause. If it were only for these factors, the court could have determined liability for
costs and it would have been wrong if it were to avoid doing so. There are, however,
a further considerations.
[33] It may become apparent that there is more to the applicant’s explanation once
all the facts are properly before a court , but this is not the only reason to consider
reserving the costs . Ordering the applicant to pay the costs will mean that he will
carry the costs in his official capacity. If regard is had to paragraph 1.14 of Rabie J’s
order, the result of the applicant paying the costs in his official capacity will be that
the first and third respondents will each bear half of those costs. Such an order will
mean that the first respondent will essentially carry half of the costs paid by the
applicant under circumstances where she should not be liable for it . For the same
applicant under circumstances where she should not be liable for it . For the same
reason, the third respondent will pay half of the costs in circumstances where the
court has not heard the third respondent , and is not satisfied that he was given due
notice. There is also a possibility that later revelations may require a cost order de
bonis propriis. One simply cannot tell. For these reasons, the costs should be
20 Martin NO v Road Accident Fund 2000 (2) SA 1023 (W) at 1026I–1027A.
reserved until such a time that a court is in a better position to receive a full
explanation, to consider all the facts, and to make an appropriate cost order.
Order
[34] The following order is made:
1. The case is postponed sine die for the leading of evidence on the disputes of
fact in accordance with the order of Her Ladyship Ms Justice Malopa -Sethosa
J dated 20 February 2019.
2. The applicant is authorised and ordered to forthwith bring this order and that
of Malopa -Sethosa J referred to in paragraph 1 , to the attention of the
following parties by delivering the two orders , together with copies of the
notice of motion, founding affidavit, first respondent’s answering affidavit and
replying affidavit, together with all their annexures, in the following manner:
2.1. On the second respondent, any person who is currently occupying Unit
1[...], W[...] Sectional Title Scheme, 1[...] J[...] Drive, Silverton,
Gauteng, by the Sheriff of the High Court or his or her deputy ( “the
Sheriff”), by delivering it in terms of Uniform Rule 4(1)(a) (i) or, should
personal service not be reasonably possible, in terms of (ii);
2.2. On the third respondent, by deliver ing it to the address of his attorney
or, if he is no longer represented by an attorney, by delivery thereof by
the Sheriff in terms of Uniform Rule 4(1)(a)(i) or (ii); and
2.3. On the City of Tshwane Metropolitan Municipality, by delivery by the
Sheriff in terms of Uniform Rule 4(1)(a)(viii).
3. The order in paragraph 2 shall no t replace or derogate any party’s rights or
obligations in terms of Section 4 of the Prevention of Illegal Eviction and
Unlawful Occupation Act, 1998.
4. If and once the order in 2 is complied with, the applicant , or should he fail to
do so any other party, may approach the office of the Deputy Judge President
for a directive in respect of the hearing of the case.
5. The costs consequent upon the enrolment of the case on the opposed motion
5. The costs consequent upon the enrolment of the case on the opposed motion
roll of 8 September 2025, together with any wasted costs occasioned by the
postponement thereof, and the costs of effecting service as provided for in the
order in paragraph 2, are reserved.
E BOTHA
ACTING JUDGE OF THE HIGH COURT
For the Applicant: Mr F Baloyi
on instruction of Maenetja Attorneys
For the First Respondent: Mr B Trumpie
on instruction of Roux van Vuuren Inc
For the Second Respondent: No appearance.
For the Third Respondent: No appearance.
For the City of Tshwane: No appearance.