IN THE HIG H COU RT O F SOUT H AF RICA
LIMPOPO DIVISION, POLOKWANE
CASE NO: 7654/2017
(I) REPORT A BLE:~ /NO
[2) OF INTE REST TO OTHER JUDGES: ¢/NO
(3) RE V ISED: 'fp.f!NO ~
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Date Signature
In the matter between:
AKHILE MANAGEMENT AND CONSULTING (PTY) LTD APPLICANT
AND
MOOKGOPHONG MUNICIPALITY
MODIMOLLE-MOOKGOPHONG LOCAL
MUNICIPALITY
FIRST RESPONDENT
SECOND RESPONDENT
2
JUDGMENT
NGOBENIJ
[1] The applicant is Akhile Management and Consulting (PTY) LTD , a private
company with limited liability, duly registered and incorporated in
accordance with the laws of the Republic of South Africa, with registration
number 2006/013365/07, and its registered address being 2nd floor,
Block 6,Suite 203, cnr Elephant Road and Steenbok Avenue, Monument
Park, Pretoria, Gauteng.
[2] The first respondent is the Mookgophong Municipality, a Local
Government Municipality Structure established within the ambit and
meaning of the Local Government Municipal Structures Act 117 of 1998,
with its main place of business being situated at Modimolle Civic Centre,
O.R. Tambo Square, Harry Gwala Street, Modimolle, Limpopo Province.
[3] The second respondent is the Modimolle-Mookgophong Local Municipality,
a Local Government Municipal Structures Act 117 of 1998, and with its
main place of business being situated at 52 Harry Gwala Street,
Modimolle.
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[4] This is an application in terms of Rule 30A of the Uniform Rules of Court
(Rules) in which the applicant seeks compliance with Ru le 28 by the first
respondent on the basis that the first respondent served the applicant
with its plea and counterclaim on 29 May 2018. On 1 March 2024, the
first and second respondents served their special plea, plea on merits and
their counterclaim on the applicant.
[SJ The cause of complaint by the applicant is that, when both respondents
served their special plea, plea on merits and counterclaim on 1 March
2024, the first respondent had already served its plea and counterclaim
on 29 May 2018, and therefore, because of the fact that the first
respondent had already filed its plea and counterclaim, then the first
respondent or the respondents should have followed the procedure that is
laid down in Rule 28 regarding amendments.
[6] The respondents were notified of the cause of complaint, and the
respondents failed to remove the cause of complaint. The court is
therefore asked to order the respondents to comply with the procedure in
Rule 28. The applicant contends that the legal representative who is
acting for the second respondent also acted for the first respondent and
therefore can act on behalf of both respondents. That constitutes the
summary of the application that the applicant brought before this court.
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[7] The application is opposed by the second respondent on the basis that
Mookgophong Municipality was disestablished through a notice published
in Government Gazette No. 2735 on 22 July 2016, and the second
respondent is therefore the successor in law to the first respondent. It is
further stated that the legal effect of the disestablishment of the first
respondent is that it no longer exists as a legal entity with legal rights
and obligations. The further submission is that the first respondent cannot
exercise any of the rights associated with juristic persons.
[8] It appears from the answering affidavit that the applicant(plaintiff) has
amended its plea after the first respondent had filed its plea, special plea
and counterclaim, and therefore when the particulars of claim were
amended, the plea, special plea and counterclaim of the first respondent
could no longer stand.
[9] In issue between the parties is that the applicant (plaintiff) issued summons
against the first respondent, who then pleaded to those summons or
particulars of claim. The applicant after the first respondent had pleaded
then joined the second respondent as a party to the proceedings where
the first respondent was already party to and had even pleaded. The
second respondent after being joined pleaded to the particulars of claim
and raised a special plea that the first respondent is non-existent as it
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was deregistered on 22 July 2016, whereas the action proceedings were
instituted on 10 November 2017. The issue which the court has to decide
is as to whether the first respondent had to follow the steps that are
provided for in Rule 28 to amend its plea.
[10] Rule 30A reads as follows:
30A Non-compliance with Rules and Court orders
"(1) Where a party fails to comply with these Rules or with a request
made or notice given pursuant thereto, or with an order or direction made
by a court or in a judicial case management process referred to in Rule
37A, any other party may notify the defaulting party that he or she
intends, after the lapse of 10 days from the date of delivery of such
notification, to apply for an order-
(a) that such rule, notice, request, order or direction be complied with,
or
(b) that the claim or defence be struck out.
(2) Where a party fails to comply within the period of 10 days
contemplated in subrule (1), application may on notice be made to the
court and the court may make such order thereon as it deems fit".
[11] The application that is before this court was brought on the basis that the
respondents did not remove the cause of complainant by acting in terms
of Rule 28 as requested by the applicant. I will only, for the sake of
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completeness quote the provisions of Rule 28(1) to (5) as I consider those
provisions to be relevant to the issues in the case at hand.
[12] Rule 28 reads as follows:
28 Amendment of Pleadings and Documents
"(1) Any party desiring to amend a pleading or document other than a
sworn statement, filed in connection with any proceedings, shall notify all
other parties of his intention to amend and shall furnish particulars of the
amendment.
(2) The notice referred to in subrule (1) shall state that unless written
objection to the proposed amendment is delivered within 1 O days of
delivery of the notice, the amendment will be effected.
(3) An objection to a proposed amendment shall clearly and concisely
state the grounds upon which the objection is founded.
( 4) If an objection which complies with subrule (3) is delivered within the
period referred to in subrule (2), the party wishing to amend may, within
10 days, lodge an application for leave to amend.
(5) If no objection is delivered as contemplated in subrule (4), every
party who received notice of the proposed amendment shall be deemed
to have consented to the amendment and the party who gave notice of
the proposed amendment may, within 1 O days after the expiration of the
period mentioned in subrule (2), effect the amendment as contemplated
in subrule (7)
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(6), (7), (8), (9) and (10). .. "
[13] In issue between the parties is as to whether the second respondent
when pleading after it was joined to the proceedings was obliged to follow
the procedure as set down in Rule 28 to amend what was already stated
in the plea by the first respondent before the second respondent was
joined.
[14] I must state from the outset that I was not favoured with documents when
the matter was still between the applicant and the first respondent. If
those documents were filed, I would have seen the first plea of the first
respondent and I would have seen the alleged amended plea which was
apparently filed without following the procedure in Rule 28 . The court
was, however, able to understand the facts of this case and the issue to
be decided from the three affidavits that were filed in this application
(Founding, Answering and Replying affidavits). I will still be able to decide
the issues in this case besides the non-filing of the documents I have
mentioned .
[15] The applicant rightly states that the legal representative who was
representing the first respondent is still the legal representative who is
now representing the second respondent. It is a fact that for a legal
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practitioner to represent a person, be it juristic or natural, there must be
an instruction that is given to such a legal practitioner.
[16] The first respondent was deregistered on 22 July 2016. The logical
explanation is that the first respondent ceased to exist. That in my view
though does not mean that what transpired before it was deregistered
could not be revisited. Logic though dictates that the first respondent
could not enter into new transactions in its name. The court was told that
it was replaced by the second respondent. The first respondent could
practically not give further instructions after being deregistered. The clear
demonstration is illustrated by the Suprem e Court of Appeal in Miller and
Others v Nafcoc Investment Holdings Compan y Ltd and Others1 , where
the court said:
"deregistration ... puts an end to the existence of the company. Its
corporate personality ends in the same way that a natural person seizes
to exist at death"
[17] The court in Juliana & Others v Fikeni & Others2 was even more robust as
it took the view that there w as no trial before it as the company that
issued summons was deregistered whe n the m atter w as to go to trial and
found that the summons wa s null and void. Th e court showed its
1 20 IO (6) SA 390 (SCA) et 395 para I I.
2 (25388/20 13) [20 15) ZAG PPH C 734 (22 May 20 15).
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displeasure by awarding costs de bonis propriis against the legal
representative who acted for the deregistered close corporation.
[18] In the case at hand I am not called upon to decide on the validity of these
proceedings or the merits of the case, and I desist from doing that. I'm
quoting the Juliana case, supra, to show that if an institution has stopped
existing, it cannot give instructions. The displeasure of the court in the
Juliana case, supra, is further demonstrated by what that court said in
paragraph 21.1 of the judgment, on the issue of acting on behalf of a
deregistered close corporation or company as thus:
"A situation where an attorney continues unabatedly to act on behalf of a
deregistered close corporation or company can be likened to a scenario •
where an attorney acts on behalf of a natural person lying in a hospital
bed in a coma, but the attorney claims to act on direct instructions from
such a person or even a deceased person"
[19] The reasoning in the two cases that I have quoted above is that a non
existent person is not capable of giving instructions. The first respondent
would not give instructions to amend if it is non-existent. The second
respondent was only joined to the proceedings at a later stage. The fact
of the matter is that even though the first respondent was already
deregistered at the time when the summons was issued, that does not
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mean that even its obligations were deregistered. If, for example there
were debts to be paid, that obligation had to be fulfilled. I have decided
not to delve into the merits and cut the chase.
[20] The reality is that even if the court can order that the first respondent on
its initial amendment before the second respondent was joined, must
follow the Rule 28 procedure, that will be a futile exercise because that
institution is currently non-existent. Any order that the court can make
against the first respondent relating to this application that is before this
court today will not be capable of being executed, and I believe that it is
the reason why the second respondent was joined.
[21] The application by the applicant in terms of Rule 30A is bound to fail for
the reasons that I have already stated. On costs, there are bound to be
complexities when an institution is deregistered and ceases to exist. If
there are proceedings to be instituted against a deregistered institution,
there must be issues as to who the litigation should be directed to and
even the procedures to be followed. It is for that reason that I will deviate
from the general rule that costs follow the event or the result.
[22] In the result the following order is made:
I I
(i) The application is dismissed,
(ii) Each party to bear its own costs.
Appearances
Counsel for the Applicant
Instructed by
Counsel for the Respondents
Instructed by
Date of hearing
Date of judgment
J.T. NGOBENI
Judge of the High Court
Adv. Russel Schorn
Alant Gell & Martin Inc.
: Adv. Richard Ramashia
Maboku Mangena Attorneys Inc.
: 25 August 2025
: 03 November 2025
Judgment transmitted electronically