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Makhado Local Municipality v Makhavu and Another (Appeal) (HCAA36/2024) [2025] ZALMPPHC 214 (10 November 2025)

60 Reportability
Civil Procedure
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Brief Summary

Appeal — Review of court orders — Appellant challenging orders not sought in notice of motion — Respondents sought urgent relief regarding electricity disconnection and account clarification — Court a quo granted orders mero motu, leading to appeal on grounds of lack of jurisdiction and deviation from pleadings — Court held that orders 5 and 6 were impermissibly beyond the scope of the relief sought, resulting in an error of law.

Comprehensive Summary

Case Note


Case Name: Makhado Local Municipality v Paul Makhavhu and Pauline Makhavhu

Citation: HCAA36/2024

Date: 10 November 2025


Reportability


This case is reportable due to its implications regarding the boundaries of judicial discretion within civil proceedings in South Africa. The court's decision to grant orders that were not expressly sought by the parties raises significant questions about the extent to which a court can exercise its discretion to issue orders not grounded in the pleadings. This case is particularly noteworthy as it demonstrates the delicate balance between ensuring justice is served and adhering to principles of procedural fairness and due process in legal proceedings.


The decision further engages with key legal principles concerning the necessity of parties to be aware of the matters they are required to address, reinforcing the importance of clarity in pleadings and the role of the court in adjudicating the issues presented. Given these considerations, the decision has broader implications for future case law on judicial discretion, particularly in application proceedings.


Cases Cited



  1. Molusi v Voges N.O. 2016 (3) SA 370 (CC)

  2. Fischer v Ramahlele 2014 (4) SA 614 (SCA)

  3. Sunker v Mega Websites (Pty) Ltd [2008] 4 All SA 498 (SCA)


Legislation Cited



  1. General Law Amendment Act 62 of 1955

  2. Institution of Legal Proceedings Against Organs of State Act 40 of 2002


Rules of Court Cited



  1. Uniform Rules of Court

  2. Rule 6(12)(a)


HEADNOTE


Summary


This appeal concerns the validity of two orders issued by the court a quo that were not part of the original application brought by the Respondents. The Appellant contended that the orders were ultra vires as they were not requested in the notice of motion, while the Respondents argued that the orders were a logical extension of the relief sought. The High Court ultimately sided with the Appellant, confirming that the original court exceeded its jurisdiction by making determinations that were not encompassed by the pleadings.


The judgment reinforces the principle that courts should not venture outside the issues defined by the parties in the pleadings. The court emphasized that while judges possess the discretion to ensure justice, they must also respect the procedural rights of the litigants involved.


Key Issues


The key legal issues that the court addressed include:



  1. Whether the court a quo had the authority to grant orders not sought in the notice of motion.

  2. The implications of procedural fairness in relation to the parties' rights to address issues before the court.

  3. The appropriate approach to judicial discretion in the context of maintaining the integrity of legal pleadings and the adversarial system.


Held


The High Court upheld the appeal, ruling that the court a quo erred in granting orders that were not prayed for or discussed during the application proceedings. The court determined that such orders undermined the procedural rights of the parties and expanded the scope of the litigation beyond what was permissible. The appeal thus succeeded, and the Appellant was awarded costs, reflecting the prevailing party's entitlement to recovery of legal expenses.


THE FACTS


The case emerged from an urgent application by the Respondents seeking representational relief concerning their electricity supply from the Makhado Local Municipality. The application included requests for the reconnection of electricity, provision of account breakdowns, and interdicts against disconnection. The Respondents argued that the orders sought were compelling due to misleading billing practices and failures in the municipality's account consolidation processes.


The original court granted a rule nisi on the basis of urgency and subsequently issued a final order, which included provisions not articulated in the Respondents' original application. The Appellant filed an appeal contesting these specific orders, asserting they were made without jurisdiction, complicating the principles of fair notice and opportunity to respond.


THE ISSUES


The central legal question for the court was whether the lower court exceeded its jurisdiction by issuing orders that were not part of the pleadings and whether such actions complied with the necessary legal procedures. Additionally, the court considered whether any judicial errors warranted annulment and the implications for the parties involved if the original orders remained in place.


ANALYSIS


The court’s analysis focused on the principle that the notice of motion and accompanying affidavits define the framework of issues for adjudication. Drawing on precedent from both the Constitutional Court and the Supreme Court of Appeal, the court reiterated that it is improper for courts to create or change issues outside of the parties' submissions.


The court carefully reviewed the function of pleadings, emphasizing the importance of procedural fairness, ensuring both parties could adequately address and respond to the issues at stake. It was noted that courts do possess an inherent power to endorse reasonable orders that promote justice but must exercise this power within the confines of established procedures.


Ultimately, the court found that the orders granted in the lower court were not only beyond what was sought by the Respondents but also fundamentally altered the litigation landscape without proper input from all parties. This led to the conclusion that respect for due process could not be sacrificed for expediency.


REMEDY


The court ordered the appeal to be upheld, thereby nullifying the specific orders numbered 5 and 6 issued by the court a quo. The court granted the Appellant the costs of the appeal, with the stipulation that these be taxed on Scale B. The decree indicated the necessity for adherence to proper procedural norms and reinforced options for litigation based on established rules.


LEGAL PRINCIPLES


This case established several critical legal principles:




  1. Judicial Limits on Authority: Courts must adhere to the issues outlined in pleadings and can only consider matters that fall within that scope unless fairness dictates otherwise.




  2. Importance of Procedural Fairness: All parties must be afforded an opportunity to address issues that may affect their rights. The court cannot unilaterally modify or expand the scope of discussion.




  3. Discretion Within Judicial Actions: While judges are empowered to ensure justice, their actions must not contravene fundamental legal procedures or infringe upon the rights of the litigants involved.




This case serves as a significant reminder of the importance of procedural law in maintaining the integrity of the judicial process.

SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy

IN THE HIGH COURT OF SOUTH AFRICA
(LIMPOPO DIVISION, POLOKWANE)

CASE NO: HCAA36/2024
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO THE JUDGES: YES/NO
(3) REVISED: YES/NO
SIGNATURE: Naude-Odendaal J
DATE: 10/11/2025

In the matter between:

MAKHADO LOCAL MUNICIPALITY APPELLANT

and

PAUL MAKHAVHU 1st RESPONDENT

PAULINE MAKHAVHU 2nd RESPONDENT

JUDGMENT

NAUDE-ODENDAAL J:

[1] This is an appeal with leave from the court a quo on limited grounds against
orders 5 and 6 only, of the judgment delivered on 18 September 2024. The orders
read as follows:-

"5. The First Respondent is ordered to review the consolidation of the
Applicants' accounts and provide a clear explanation of the process followed,
particularly with regard to the unmetered property, within 30 days of this order.
6. The Applicants are granted leave to approach this court on the same
papers, duly supplemented, s hould any disputes arise from the
implementation of this order."

[2] The grounds of appeal in essence is based on the fact that the orders in 5 and
6 were not prayed for and were meru moto granted by the court a quo.

[3] The Respondents brought an urge nt application in terms whereof the
following relief was sought:-

"1. That the Applicants non-compliance with the Uniform Rules and Directives
of the above Honourable Court be forthwith condoned and the matter be
heard on an urgent basis in terms of Unifo rm Rules 6(12)(a) of the Uniform
Rules of Court.
2. That the Applicants non -compliance with Sec tion 35 of the General
Law Amendment Act 62 of 1955 be forthwith condoned.
3. That the Applicants' non -compliance with Section 3 and 4 of the
Institution of Legal Proceedings Against Organs of Sate Act 40 of 2002, as
amended [be condoned].
4. That this matter be heard ex parte.
5. That the First Respondent be ordered to reconnect and/or cause to be
reconnected, electricity to the immovable property of the Applicants situated
at Number 1 […] B[…] Street, Louis Trichardt, under Makhado Local
Municipality, Limpopo Province, Under Account Number 0[…], within 24 hours
of receipt of this Order.
6. That the First Respondent be ordered to furnish and/or cause to be
furnished the Applicants' attorneys of record with a breakdown and/or
explanation of the amount of R154 577.27 contained in Tax Invoice/Statement
of Account, Under Account Number 0 […], Tax Invoice Number
0000703948202407, dated 1 July 2024, of the immovable property of the
Applicants situated at Number 1 […] B[…] Street, Louis Trichardt, under

Makhado Local Municipal ity, Limpopo Province, within ten (10) [days] of
receipt of this Order.
7. That the First Respondent be interdicted from disconnecting and/or
causing to be disconnected, disrupting and/or caused to be disrupted, the
provision of electricity to the immovabl e property of the Applicants situated at
Number 1[…] B[…] Street, Louis Trichardt, under Makhado Local Municipality,
Limpopo Province, Under Account Number 0 […], pending compliance with
order number 6 above.
8. That the First Respondent be interdict ed from disconnecting and/or
causing to be disconnected, disrupting and/or caused to be disrupted, the
provision of electricity to the immovable property of the Applicants situated at
Number 1[…] B[…] Street, Louis Trichardt, under Makhado Local Municipality,
Limpopo Province, Under Account Number 0 […], without first giving the
Applicants the required notice of not less than seven (7) days, demanding
payment and affording the Applicants a reasonable period to pay and/or
cause to be paid, the amoun t due and payable as per the tax
invoice/statement of the particular month.
9. Further and/[or] alternative relief that the Honourable Court may deem
suitable under the circumstances.
10. Costs of suit on the party and party scale to be determined by the
Honourable Court.
11. That orders number 6, 7 and 8 be granted on interim basis and that a
Rule Nisi be issued, calling upon the Respondents to come and show cause
why the above interim orders should not be made final orders, returnable on
the ___ day of ___ 2024."

[2] The court a quo issued a rule nisi order on the 19 th of July 2024, that mirrors
the Notice of Motion except for prayer 4 of the Notice of Motion. The rule nisi was
granted before the Appellant filed and served its answering affidavit.

[3] The Appellant subsequently opposed the application and filed its answering
affidavit. After hearing the arguments from the respective parties' legal

affidavit. After hearing the arguments from the respective parties' legal
representatives, the court a quo granted a final order on 18 September 2024. It is
prayers/orders 5 and 6 of this final order that are the subject of this appeal.

[4] The Appellant submits that the court a quo erred in granting orders that were
neither sought in the notice of motion nor canvassed in the founding papers or at the
hearing of the application.

[5] The Appellant further submitted that the court a quo erred by not realizing that
order number 5 and 6 of its judgment were not sought, canvassed and the parties
were not afforded an opportunity to address the possibility of the court making such
orders. I t was submitted that orders 5 and 6 were outside the pleadings and
therefore the court had no authority or jurisdiction to decide issues not before the
court.

[6] The Appellant submitted that the court a quo's judgment is further silent on the
basis of granting orders 5 and 6. The judgment did not explain why the orders were
made and how did the court arrive at the conclusion of granting such orders outside
the pleadings.

[7] The Respondents submitted that the orders in 5 and 6 were reasonable and
necessary to bring the matter to finality. It was submitted that these two orders were
relevant and has to stand as it is still within the scope of the review of the
consolidation process required to be understood by the Respondents as to how the
figures referred to were arrived at. In the alternative, it was submitted that should this
court find that order 5 was not supposed to have been granted, this court is
requested to consider order 5 in line with order 3 of the standing prayers. If this order
is removed, this will leave issues not being fully canvassed and issues will be left
hanging.

[8] The Respondents further submitted that based on the orders granted on 18
September 2024, the orders wherein leave to appeal was not granted is still standing
and binding as they are. Even in the event that the Appellant may succeed in this
appeal, that cannot take away the fact that the real and actual issues were dealt with ,
finalized and there is not appeal on those issues. It is submitted that there is

finalized and there is not appeal on those issues. It is submitted that there is
therefore no practical effect of this appeal on the orders sought. The appeal has
therefore become academic.

[9] The Respondents further submitted that the role of a judge is to ensure that
justice is dispensed with, with a just and expeditious decision and in doing so, a
Judge may make an order that the Judge believes to be reasonable in his/her
discretion in order to achieve a just and fair outcome. It was submitted that the Judge
in the court a quo did perform such duties and the orders were within the scope of
the relief sought.

[10] The Constitutional Court in Molusi v Voges N.O. 2016 (3) SA 370 (CC) at
paras 27-28 held as follows:-

"[27] It is trite law that in applic ation proceedings the notice of motion and
affidavits define the issues between the parties and the affidavits embody
evidence. As correctly stated by the Supreme Court of Appeal in Sunker:
'If an issue is not cognisable or derivable form these sources, th ere is little or
no scope for reliance on it. It is a fundamental rule of fair civil proceedings that
parties... should be apprised of the case which they are required to meet; one
of the manifestations of the rule is that he who [asserts] ... must... f ormulate
his case sufficiently clearly so as to indicate what he is relying on. '
[28]The purpose of pleadings is to define the issues for the other party and
the Court. And it is for the Court to adjudicate upon the disputes and those
disputes alone. Of course, there are instances where the court may, of its own
accord (mero motu), raise a question of law that emerges fully from the
evidence and is necessary for the decision of the case as long as its
consideration on appeal involves no unfairness to the other party against
whom it is directed. In Slabbert the Supreme Court of Appeal held:-
'A party has a duty to allege in the pleadings the material facts upon which it
relies. It is impermissible for a plaintiff to plead a particular case and seek to
establish a different case at the trial. It is equally not permissible for the trial
court to have recourse to issues falling outside the pleadings when deciding a

court to have recourse to issues falling outside the pleadings when deciding a
case." (Footnotes omitted.)

[11] It is trite that an Applicant must stand or fall by his paper s. Facts relevant to
the relief sought must be set out simply, clearly and in chronological sequence in the
affidavits which support the notice of motion.

[12] In the present matter, the court a quo clearly deviated from the relief sought
by the Respondents in their notice of motion. The court a quo further failed to invite
the parties to comment or address the court or make submissions before making
such orders that were completely outside the case the Respondents pleaded in their
founding affidavit.

[13] By making the orders, although the orders might have been practical under
the circumstances and might have resulted in a more speedily finalization of the
matter, impermissibly ventured and extended the relief beyond the Respondents
case.

[14] In Fischer v Ramahlele 2014 (4) SA 614 (SCA) at paras 13 -15 the following
was held:-

"[13] Turning then to the nature of civil litigation in our adversarial sys tem it is
for the parties, either in the pleadings or affidavits, which serve the function of
both pleadings and evidence, to set out and define the nature of their dispute
and it is for the court to adjudicate upon those issues. That is so even where
the dispute involves an issue pertaining to the basic human rights guaranteed
by our Constitution, for 'it is impermissible for a party to rely on a constitutional
complaint that was not pleaded'. There are cases where the parties may
expand those issues by the way in which they conduct the proceedings. There
may also be instances where the court may mero motu raise a question of law
that emerges fully from the evidence and is necessary for the decision of the
case. That is subject to the proviso that no prejud ice will be caused to any
party by its being decided. Beyond that it is for the parties to identify the
dispute and for the court to determine that dispute and that dispute alone.

dispute and for the court to determine that dispute and that dispute alone.
[14] It is not for the court to raise new issues not traversed in the pleadi ngs or
affidavits, however interesting or important they may seem to it, and to insist
that the parties deal with them. The parties may have their own reasons for

not raising those issues. A court may sometimes suggest a line of argument
or an approach to a case that has not previously occurred to the parties.
However, it is then for the parties to determine whether they wish to adopt the
new point. They may choose not to do so because of its implications for the
further conduct of the proceedings, such as an adjournment or the need to
amend pleadings or call additional evidence. They may feel that their case is
sufficiently strong as it stands to require no supplementation.
They may simply wish the issues already identified to be determined because
they are relevant to future matters and the relationship between the parties.
That is for them to decide and not the court. If they wish to stand by the issues
they have formulated, the court may not raise new ones or compel them to
deal with matters other than those they have formulated in the pleadings or
affidavits.
[15] This last point is of great importance because it calls for judicial
restraint. As already mentioned Gamble J 'required' the parties to argue as a
preliminary issue what he described as two i ssues of legality. Although he
added that the parties were amenable to these proposals, counsel who
appeared in this Court and in the court below, confirmed that the judge's own
description, that he 'required' the points to be argued, was accurate. They
were not asked for their submissions on whether this was an appropriate
approach to the matter or even, which was more pertinent, whether either
question was in issue in the case. Nor were they asked whether their clients
agreed to broaden the issues to enco mpass these points. The authority on
which the judge relied in adopting this approach was not in point. That was a
case where the court, on the application of one of the parties, held that he
could dispense with the hearing of oral evidence, notwithstandin g the case
having been referred for the hearing of such evidence, because the questions

having been referred for the hearing of such evidence, because the questions
raised on the papers could be determined without hearing such evidence and
the evidence could not affect the resolution of those issues. It is a far cry from
that for a court to raise issues that do not emerge from the papers and have
not been canvassed in the affidavits and require that those be argued instead
of hearing oral evidence and deciding the issues raised by the parties."
[Footnotes omitted]

[15] In the result, in this court's view, the court a quo erred by venturing into relief
sought beyond the parties submissions and dispute before court. The court a quo
had to determine the dispute before it and that dispute alone. It was not for the court
a quo to raise new issues not traversed in the affidavits. Based on the aforegoing,
orders 5 and 6 fall outside the pleadings and consequently, the court had no power
to mero motu grant such orders. The appeal therefore stands to succeed.

[16] The only issue remaining is the issue of costs . The general rule is that costs
should follow success. There is no reason in the present appeal why the general rule
should not be applicable. Both parties applied for costs should they be successful,
with the only difference that the Appellant sought costs to be taxed on Scale B and
the Respondents applied for costs to be taxed on Scale C. In the r esult the appeal
should succeed with costs, which costs are to be taxed on Scale B.

[17] The following order is therefore made: -

1. The appeal is upheld with costs, which costs are to be taxed on party
and party cost – Scale B.



M. NAUDE-ODENDAAL
JUDGE OF THE HIGH COURT,
LIMPOPO DIVISION, POLOKWANE

I AGREE:


K. PILLAY
ACTING JUDGE OF THE HIGH COURT,
LIMPOPO DIVISION, POLOKWANE

I AGREE:

J. STROH
ACTING JUDGE OF THE HIGH COURT,
LIMPOPO DIVISION, POLOKWANE


APPEARANCES:

HEARD ON: 1 AUGUST 2025

JUDGMENT DELIVERED ON: 10 NOVEMBER 2025

For the Appellant: Adv. U.B. Makuya
Instructed by: Dabishi, Nthambeleni Inc.
C/O Tshigomana UM Attorneys
Polokwane
makhadzi@umtinc.co.za

For the Respondents: Adv. Z.D. Malueleke
Instructed by: Maluleke T and Associates Attorneys Inc.
C/O Ledwaba M Attorneys Inc.
ledwab@ledwabamattorneys.com

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