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IN THE HIGH COURT OF SOUTH AFRICA
(LIMPOPO DIVISION, POLOKWANE)
CASE NO: 9645/2023
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO THE JUDGES: YES/NO
(3) REVISED: YES/NO
DATE: 06/11/2025
SIGNATURE: Naude-Odendaal J
In the matter between:
VAKANAYENA ENGINEERINGS & SCAFFOLDING
(PTY) LTD 1st APPLICANT
KENNETH EDWIN NKWAMBA 2nd APPLICANT
BUSI ABIGAIL MATHEBULA 3rd APPLICANT
and
PEZULA ACCESS SCAFFOLDING (PTY) LTD 1st RESPONDENT
MICHAEL JAMES ORGANISATION (PTY) LTD 2nd RESPONDENT
JUDGMENT
NAUDE-ODENDAAL J:
[1] This is an application for costs only. On the 31 st day of October 2023 an order
was made by agreement between the parties which ordered as follows:-
"1. The first applicant is ordered to pay into the trust account of Frik van
Schalkwyk Attorneys the amount of R166 536.25 (144,814, 13 excluding VAT)
within 3 day s from the date of this order, in. respect of the maintenance and
repair work on the truck previously used on the Foskor site, which payment
will be regarded as a payment without prejudice.
2. The applicants are interdicted, pending the final determination of the
remaining disputes between the parties, from selling, alienating or
encumbering the following movable properties:
2.1 Portion 0, Erf 2 […], Phalaborwa Extension 8, Registration Division LT,
held by deed of transfer T [...]. A copy of [the] deed of Transfer in respect of
the immovable property is annexed as Annexure "A".
2.2 Portion, Erf 1[...], Phalaborwa Extension 1, Registration Division LT,
held by deed of transfer T[...]. A copy of the deed of Transfer in respect of the
immovable property is annexed as Annexure "Y".
("the immovable properties';
3. The first respondent is interdicted from proceeding with the sale of the
immovable properties based on the auction of 19 October 2023.
4. The costs of this application is reserved."
[2] The application came before court on the 31 st of October 2023 as an urgent
application. The parties reached a settlement agreement, which agreement was then
made an order of court as per the a bove court order. This application is therefore in
respect of the reserved cost order between the Applicants and the 1 st Respondent,
as the 2nd Respondent did not oppose the application.
[3] The Applicants submitted that there are several disputes between the
Applicants and the 1 st Respondent, with a long history, but the immediate cause of
action for the urgent application was that the 2 nd Respondent, on the instructions of
action for the urgent application was that the 2 nd Respondent, on the instructions of
the 1 st Respondent, had advertised and put up for sale at a public auction two
immovable properties belonging to the Applicants, without a court order or consent to
do so from the Applicants.
[4] According to the Applicants, the Applicants ceded the properties to the 1 st
Respondent in terms of a court order made by this Court, as secur ity for payment
obligations due to the 1 st Respondent by the 1 st Applicant, in respect of a service
project with Phalaborwa Mining Company (Pty) Ltd. The Respondents wanted to sell
the properties to recover a disputed debt allegedly owed to the 1 st Respondent by
the 1st Applicant, in respect of an unrelated service project with Foskor Mining (Pty)
Ltd.
[5] The Applicants submitted that as it is apparent from the aforegoing, the main
objective of this application was to stop the Respondents from selling th e Applicants'
properties unilaterally and unlawfully, without a court order or consent of the
Applicants. The above settlement agreement was then reached which was made an
order of court.
[6] The Applicants submitted that it is apparent from the aforego ing that the
Applicants achieved the main objective of the urgent application, as the outcome and
effect of the Court Order was to immediately stop the 1st Respondent from selling
the Applicants' properties or undertaking any related action unilaterally wi thout a
court order.
[7] It was further submitted by the Applicants that the order under paragraph 1 of
the Court Order for payment of R166 536.25 was not final, and the payment was to
be made without prejudice. According to the Applicants the claim for this amount was
dubious, fortuitous and had already been strongly disputed by the 1 st Applicant
before the 1 st Respondent set out to sell the Applicants' properties to recover this
amount. It was submitted that payment of such claims under the Foskor Projec t were
fully covered and regulated in terms of the court order by the Pretoria High Court.
[8] I pause here to state that from a reading of the Founding Affidavit in the
urgent application, it is clear that there is a dispute between the parties in res pect of
urgent application, it is clear that there is a dispute between the parties in res pect of
whether or not an amount is due and payable by the Applicants to the 1st
Respondent. and if indeed due and payable, what amount.
[9] The Applicants stated in paragraph 10.4 of the Founding Affidavit as follows:-
"The First Respondent's actions are unconscionable; the Honourable Court
should consider that even if in the unlikely event the First Applicant was
obliged to pay for the repairs of the truck scaffolding after they were
repossessed by the First Respondent, this would amount to only R969
420.51."
[10] The 1 st Respondent submitted that the Applicants' could never have been
successful in enrolling the matter as an urgent application for the following reasons:-
10.1 First, an identical application was launched under case number
9365/2023 and set down for hearing on 17 October 2023. This application
was dismissed with costs for lack of jurisdiction. Enrolling an identical matter
does not cure the lack of jurisdiction.
10.2 Second, in the first application, the p residing Judge stated that had he
not found that the court lacks jurisdiction, he would in any event have struck
the matter for lack of urgency. According to the 1 st Respondent, this is
common cause between the parties.
10.3 Thirdly, the auction was held o n 19 October 2023. Both applications
served before court after the auction was held. This rendered the relief sought
moot.
[11] The 1st Respondent further submitted that the main application was set down
for hearing on 31 October 2023 on this court's urge nt roll. On the day of the hearing
of the matter, the parties agreed on a draft order, which was subsequently made an
order of court.
[12] In respect of the relief sought in the notice of motion, it is submitted by the 1 st
Respondent that the Applicants would not have been successful in respect of
prayer 1 as the matter had already been adjudicated on previously and the date for
the auction had already passed. In respect of prayers 2 and 3 of the notice of motion,
no relief was granted. In respect of pray er 4 of the notice of motion, no relief was
granted. Prayer 4 was an alternative to prayers 2 and 3. In respect of prayer 5 of the
notice of motion, as an alternative to prayer 4, was agreed to between the parties.
[13] The 1st Respondent submitted that in respect of the actual relief contained in
the order of 31 October 2023, that paragraph 1 of the order was granted in favour of
the 1st Respondent and paragraph 2 was granted against the Applicants.
[14] It should be noted that only paragraph 3 of the c ourt order was granted in
favour of the Applicants which stipulated that the 1 st Respondent is interdicted from
proceeding with the sale of the immovable properties based on the auction of 19
October 2023.
[15] The 1st Respondent submitted that there is no reason why the court ought to
deviate from the general rule pertaining to costs.
[16] It is a fundamental principle that, as a general rule, the party who succeeds
should be awarded costs. and this rule should not be departed from except on good
grounds.
[17] The party in whose favour judgment is given is not necessarily the successful
party - the other party may, nevertheless, have succeeded on the issues in dispute.
In determining who the successful party is, the court will attempt to ascertain whic h
of the parties has been substantially successful. (See Herbstein & Van Winsen,
The Civil Practice of the High Courts of South Africa, Fifth Edition, Volume 2,
page 958)
[18] In the present matter, both parties were equally successful. The Applicants
managed to interdict the 1 st Respondent from proceeding with the sale of the
immovable party, but equally the Respondents managed to secure security in the
form of payment for maintenance and repair work on the truck previously used on
the Foskor site, altho ugh the payment was made without prejudice. The 1 st
Respondent also obtained an order against the Applicants in the form of security that
the Applicants are interdicted, pending the final determination of the remaining
disputes between the parties, from se lling, alienating or encumbering the immovable
properties as listed in the court order.
[19] In my view, it is against this mutual performance by the respective parties that
the settlement agreement was reached which was made an order of court. Both
parties were ordered to perform in some way. In light thereof, I am of the view that a
justifiable cost order would be that each party should pay his/her/own costs of the
application on 31 October 2023.
[20] This then brings me to the costs of the current application for costs, neither
party was successful and therefore also in the current application for costs, should
each party pay his/her/its own costs.
[21] Accordingly, this court therefore makes the following order:-
1. Each party is ordered to pay his/her/its own costs in respect of both, the
application of 31 October 2023, as well as the application for costs on 3
November 2025.
M. NAUDE-ODENDAAL
JUDGE OF THE HIGH COURT,
LIMPOPO DIVISION, POLOKWANE
APPEARANCES:
HEARD ON: 3 NOVEMBER 2025
JUDGMENT DELIVERED ON: 6 NOVEMBER 2025
For the Applicant: Adv. R L Kayingo
Instructed by: Mashamaite MR Attorneys Inc
c/o Malesela Moloto Attorneys
Polokwane
mrmashamaiteattorneys@gmail.com
For the Respondent: Adv. R Van Schalkwyk
Instructed by: Frik Van Schalkwyk Attorneys
c/o Elmarie Bierman Attorneys
Polokwane
frik@fvslaw.co.za
ashlee@elmariebierman.co.za