IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION, GQEBERHA)
NOT REPORTABLE
Case no: 751/2025
In the matter between:
CLASSY TRADE AND INVESTMENT CC Intervening
Party
t/a TECHNO PADEL
(Registration Number: 2006/056225/23)
and
DEREK KENNETH KIBBLE First Respondent
BENITA KIBBLE Second Respondent
CLIVE SWANEPOEL Third Respondent
BERNIE SWANEPOEL Fourth
Respondent
DAVID PAXTON Fifth Respondent
CARLA PAXTON Sixth Respondent
THE WALMER GOLF CLUB Seventh Respondent
NELSON MANDELA BAY MUNICIPALITY Eighth Respondent
In re matter between:
DEREK KENNETH KIBBLE First Applicant
BENITA KIBBLE Second Applicant
CLIVE SWANEPOEL Third Applicant
BERNIE SWANEPOEL Fourth Applicant
DAVID PAXTON Fifth Applicant
CARLA PAXTON Sixth Applicant
and
THE WALMER GOLF CLUB First Respondent
NELSON MANDELA BAY MUNICIPALITY Second Respondent
________________________________________________________________
JUDGMENT
___________________________________________________________________
Govindjee J
Background
[1] Padel’s rapid ascent in South Africa – fuelled by the simplicity of the sport as
well as its sociable nature and communal appeal – has led to a proliferation of pad el
courts across the country, from urban centres to neighbourhood clubs. The
intervening party (Techno Padel) and the Walmer Golf Club (the Club) concluded an
agreement in 2024. Techno Padel leased land from the Club and constructed three
padel courts (the courts), which it operates for its own account since May 2024. The
first to sixth respondents (the respondents) obtained an urgent interim interdict
restraining the Club from, in essence, operating, conducting or permitting padel to be
played on courts si tuated on its property, pending an instituted action for the
demolition of the courts (the order). 1 The basis of the application was, inter alia, the
1 The order was dated 11 March 2025. The relief sought in terms of the action is for the Club to
demolish and remove all structures, fences constituting the three padel courts on the property and / or
any other structures erected for such purposes on the property, together with incidental relief.
absence of approved building plans for the construction of the courts. Reliance was
also placed on s 14 o f National Building Regulations and Building Standards Act,
19772 (the Act), which prohibits use or occupation absent a certificate of occupancy.3
Techno Padel was not cited as a respondent and was unsuccessful in its attempt to
postpone the Club’s appl ication for leave to appeal the order, to enable its
intervention.4
[2] Techno Padel seeks to intervene in the application at this stage, post -
judgment, to be joined as a respondent. Its aim is to rescind the order for the matter
to be heard afresh. The main issues to be decided are whether Techno Padel has
locus standi to intervene and, if so, whether there are grounds to rescind the
judgment in terms of the common law.
Intervention
[3] Techno Padel argued that it had made out a prima facie case to demonstrate
a direct and substantial interest in the subject -matter of the litigation. The case, in
essence, is that the court took a decision that was manifestly prejudicial to Techno
Padel without affording it a hearing, so that leave to intervene ought to be grant ed.
Once intervention is granted, so the argument goes, rescission must follow since the
purpose of the intervention is to engage the respondents on the merits. Techno
Padel argues, in its papers, that it is both in the interests of justice, and that there are
exceptional circumstances present, to permit its intervention, 5 and that it should
succeed on the proper application of the traditional test. The respondents, in
opposing the application, highlight that more than a simple financial interest is
required for purposes of intervention.
2 Act 103 of 1977 (the Act).
3 S 14(4)(a): ‘The owner of any building, or any person having an interest therein, erected or being
erected with the approval of a local authority, who occupies or uses such building or permits the
occupation or use of such building –
occupation or use of such building –
(i) unless a certificate of occupancy has been issued in terms of subsection (1)(a) in
respect of the building …
shall be guilty of an offence.’
4 Techno Padel’s application to postpone the application for leav e to appeal, pending this application,
was dismissed with costs on 20 June 2025. Application for leave to appeal was dismissed with costs
on 19 September 2025. It is my understanding that the Club has petitioned the Supreme Court of
Appeal for leave, which the respondents have opposed.
5 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 [2021] ZACC 28; 2021 (11)
BCLR 1263 (CC) (Zuma).
The legal position
[4] Any person entitled to join as an applicant or liable to be joined as a
respondent may, on notice to all parties, apply for leave to intervene as an applicant
or respondent at any stage of the proceedings.6 The fact that an order has already
been issued at the time of the application for intervention is immaterial. 7 The
question must be determined on the assumption that the allegations of fact relied
upon by Techno Padel are true. Leave of th e court is required and the court typically
considers the same principles applicable to joinder. Determination of the issue does
not involve the exercise of a discretion.8
[5] It must be noted from the outset that the usual test, discussed below, is
distinct from cases where intervention is sought before the Constitutional Court. A
different rule applies in that court, alongside Uniform Rule 12, so that the court
considers whether it is in the interests of justice for a party to intervene in litigatio n.9
For present purposes, the test is whether the party applying to intervene has a direct
and substantial (legal) interest in the subject matter of the proceedings ‘which may
be affected prejudicially by the judgment of the court’.10 Corbett J framed the position
as follows:11
6 Uniform Rule 12 read with rule 6(14).
7 SA Riding for the Disabled Association v Regional Land Claims Commissioner 2017 (5) SA 1 (CC)
(SA Riding ) para 20; United Watch and Diamond Co (Pty) Ltd and Others v Disa Hotels Ltd and
Another 1972 (4) SA 409 (C) (United Watch & Diamond Co) at 415.
8 Nelson Mandela Metropolitan Municipality and Others v Greyvenou CC and Others 2004 (2) SA 81
(E) para 9. The intervening party must satisfy the court that their application is made seriously and is
not frivolous: Minister of Local Government and Land Tenure and Another v Sizwe Development and
Others: In re Sizwe Development v Flagstaff Municipality 1991 (1) SA 677 (Tk) (Flagstaff Municipality)
at 678G–679B.
at 678G–679B.
9 International Trade Administration Commission v SCAW South Africa (Pty) Ltd [2010] ZACC 6; 2012
(4) SA 618 (CC); 2010 (5) BCLR 457 (CC); 72 SATC 135 paras 11 –12. Also see s 167(6) of the
Constitution, as discussed in Independent Newspapers (Pty) Ltd v Minister for Intelligence Services
(Freedom of Expression Institute as Amicus Curiae) In re: Masetlha v President of the Republic of
South Africa and Another [2008] ZACC 6; 2008 (5) SA 31 (CC); 2008 (8) BCLR 771 (CC) paras 19 –
20. The Constitutional Court has noted that the question of direct and substantial interest in the
subject matter of the proceedings ‘will rank highly along with other relevant considerations’, including
explanation for any delay in seeking to be joined; the nature of the relief or opposition put up by the
intervening party; whether the intervention woul d materially prejudice the case of any of the other
parties to the litigation.’ Also see Gory v Kolver NO and Others [2006] ZACC 20; 2007 (4) SA 97 (CC);
2007 (3) BCLR 249 (CC) para 13. Cf Snyders and Others v De Jager [2016] ZACC 54 para 9: a
person has a direct and substantial interest in an order that is sought in proceedings if the order would
directly affect such a person’s rights or interest (own emphasis).
10 Bowring NO v Vredecorp Properties CC and Another 2007 (5) SA 391 (SCA) para 21. See Gordon
v Department of Health, KwaZulu -Natal 2008 (6) SA 522 (SCA) ( Gordon) para 9, citing the two -
‘In my opinion, an applicant for an order setting aside or varying a judgment or order of Court
must show, in order to establish locus standi, that he has an interest in the subject-matter of
the judgment or order sufficiently direct and substantial to have entitled him to intervene in
the original application upon which the judgment was given or order granted.’
[6] ‘Direct and substantial interest’ has also been held to connote ‘an interest in
the right which is the subject -matter of t he litigation and … not merely a financial
interest which is only an indirect interest in such litigation’. 12 This understanding was
confirmed in Standard Bank of SA Ltd v Swartland Municipality 13 (Swartland
Municipality). The SCA held that a mortgagee (the bank), as the holder of a real right
in property, which included buildings on the land, erected lawfully or otherwise, had
more than a financial interest in the outcome of proceedings for demolition of those
buildings.14 The reason for this was expressed as follows:15
‘…the bank had a clear and substantial interest in the outcome of the application … The
value of the property in which it had real rights would no doubt be affected by the demolition
of structures erected on it. The bank’s ability to sell th e property for the amount owed to it
was placed in jeopardy. It was accordingly necessary for the municipality to join the bank as
a respondent in the application.’
[7] Once the intervening party shows a direct and substantial interest in the
subject matter o f the case, which could be prejudicially affected by an order, the
court ought to grant leave to intervene:16
‘It is now settled that an applicant for intervention must meet the direct and substantial
interest test in order to succeed. What constitutes a direct and substantial interest is the
legal interest in the subject -matter of the case which could be prejudicially affected by the
order of the court. This means that the applicant must show that it has a right adversely
order of the court. This means that the applicant must show that it has a right adversely
pronged test formulated in Amalgamated Engineering Union v Minister of Labour 1949 (3) SA 637 (A)
(Amalgamated Engineering Union) at 657.
11 United Watch & Diamond Co above n 7 at 415B.
12 Henri Viljoen (Pty) Ltd v Awerbuch Brothers 1953 (2) SA 151 (O) ( Henri Viljoen (Pty) Ltd ) at 169H;
United Watch & Diamond Co above n 7 at 415 –416; Aquatur (Pty) Ltd v Sacks and Others 1989 (1)
SA 56 (A) at 62C. Cases involvi ng right and title to immovable property have bene held to fit the bill:
see for example, Mabuza v Nedbank Ltd and Another 2015 (3) SA 369 (GP) para 16. So too cases
involving the eviction of natural persons: Snyders and Others v de Jager [2016] ZACC 54 para 10.
13 Standard Bank of South Africa Ltd v Swartland Municipality and Others 2011 (5) SA 257 (SCA)
(Swartland Municipality) para 9.
14 Ibid. Also see Collin v Toffie 1944 AD 456 at 464.
15 Swartland Municipality above n 13 para 10. Cf M Dendy and C Loots Herbstein and Van Winsen:
The Civil Practice of the Superior Courts of South Africa (2025) OS 2021 p7-32.
16 SA Riding above n 7 paras 9–10, citing Flagstaff Municipality above n 8.
affected or likely to be affected by the order sought. But the applicant does not have to
satisfy the court at the stage of intervention that it will succeed. It is sufficient for such
applicant to make allegations which, if proved, would entitle it to relief … If the applicant
shows that it has some right which is affected by the order issued, permission to intervene
must be granted. For it is a basic principle of our law that no order should be granted against
a party without affording such party a predecision hearing. This is so fundame ntal that an
order is generally taken to be binding only on parties to the litigation.’ (References omitted.)
[8] Case authority offers various useful approaches to determine the issue. In
Amalgamated Engineering Union v Minister of Labour , the following two tests were
employed to decide whether a third party had a direct and substantial interest:17
(a) Whether the third party would have locus standi to claim relief concerning the
same subject matter;
(b) Whether a situation could arise in which, because the third party had not been
joined, any order that the court might make would not be res judicata against
it, entitling it to approach the court again concerning the same subject matter
and possibly obtain an order irreconcilable with the order made in the first
instance.
[9] It has also been held to be important to determine ( a) what interest it is that
the intervening party claims to have in the proceedings that led to the order and ( b)
what the issues in th ose proceedings were.18 The nature of the relief claimed before
that court should therefore be considered in conjunction with the interest of the party
who it is argued should have been joined. This will enable determination as to
whether the intervening p arty has a direct and substantial interest in the subject -
matter of the proceedings.19
17 Amalgamated Engineering Union above n 10 as cited in Dendy and Loots above n 15 at p7-28.
18 United Watch & Diamond Co above n 7 at 416H.
18 United Watch & Diamond Co above n 7 at 416H.
19 Dendy and Loots above n 15 at p7 -42. See Gordon above n 10 para 10. The court held that a
successful appointee would only have a legal interest in the proceedings where the decision to
appoint them was sought to be set aside, which could lead to removal from the post. The person then
became a necessary party to the proceedings because the order could not be effected without
affecting their interests
[10] In SA Riding, for example, it was argued that the Association merely had a
financial interest in the litigation. 20 In concluding to the contrary, the Constitutional
Court relied squarely on the applicable legislative provision, which afforded lawful
occupiers of state land the right to claim compensation when the land occupied was
awarded to a claimant for restitution of land rights. It was the determination of the
right to compensation, emanating from the entitlement to compensation conferred
upon lawful occupiers in terms of the statute, that gave rise to a direct and
substantial interest and an entitlement to be heard.21
‘The Association was therefore entitled to intervene and enforce its right to compensation. It
is in this limited sense that it had a direct and substantial interest in the proceedings … it had
no legal interest in the transfer of the land [and] no direct and substantial interest in the
property in question.’
Analysis
[11] The original papers reflect that the gravamen of the respondents’ complaint
was that unlawful activities had created an untenable nuisance. The alleged
unlawfulness was premised squarely on the absence of submitted or appr oved
building plans for the courts. 22 This was also the reason for the application to be
brought on an urgent basis. Several paragraphs were devoted to the issue, including
reference to the statutory obligation to obtain a prescribed certificate prior to
occupation, and that non -compliance constituted a criminal offence and justified
demolition.23 The prima facie right relied upon by the respondents was described as
follows:
‘… we have a clear right, or at the very least, a prima facie legal right to demand that the
[Club] complies with the requirements of building regulations and town planning schemes,
which serves the interests of the community.’
Similarly, statutory non -compliance was the sole basis for submitting that the
balance of convenience for the g ranting of the interim interdict favoured the
balance of convenience for the g ranting of the interim interdict favoured the
respondents. The respondents clearly did not rely on nuisance for the relief sought,
although this featured, as may have been expected, in describing the respondents’
apprehension of harm.
20 SA Riding above n 7.
21 SA Riding above n 7 paras 15, 18–19. Also see Flagstaff Municipality above n 8 at 679.
22 Cf City of Tshwane v Ghani and Others 2009 (5) SA 563 (T).
23 See Lester v Ndlambe Municipality and Another 2015 (6) SA 283 (SCA) para 23.
[12] Does Techno Padel h ave a sufficient direct and substantial legal interest to
intervene in an application that sought this relief? Techno Padel relies on its lease
agreement, in terms of which it will operate the courts for its own account for a period
of five years, with an option to renew. The rental payable to the Club is a percentage
of the income. The papers deal with the cost of construction, the income generated
between December 2024 and February 2025 and the estimated loss if the courts are
closed. It is readily appare nt that this constitutes nothing more than a financial
interest, which is tantamount to an indirect interest in the litigation. As indicated
above, the SCA has confirmed that this is an insufficient basis to establish locus
standi.
[13] It may be added that Te chno Padel’s answering affidavit focuses
predominantly on the respondents’ complaints about the inconvenience caused to
them by the courts, based on various factual disputes. It erred by approaching the
respondents’ case as one founded on nuisance, instead of a contravention(s) of the
Act. It places no reliance on any obligations imposed upon it, as the party that
seemingly erected the courts, in terms of the Act, maintains that compliance is an
issue restricted to the Club and avers, in reply, that it does not have knowledge of
what is, or is not, outstanding in respect of Municipal approvals. On that basis alone,
and bearing in mind the nature of the relief claimed by the respondents, it fails to
demonstrate a necessary entitlement for intervention. Viewed as such, its interests
are purely financial. Put differently, if the respondents’ complaints involving building
regulations are truly a matter only involving the Club and Municipality, Techno Padel
has no ‘legal’ interest in the matter on its own version, notwithstanding even a
substantial financial or commercial interest which may be prejudicially affected by the
judgment.24
judgment.24
[14] Techno Padel does, however, suggest the following at one point in its papers:
‘…the issue has become academic because the Metro has now approved the building plans
and … the Golf Club, as the registered owner of the property on which the courts are
situated, has compl ied, or is in the process of complying with all the necessary conditions
24 Henri Viljoen (Pty) Ltd above n 12 at 167; Dendy and Loots above n 15 at p7 -29; Aquatur (Pty) Ltd
v Sacks and Others above n 12 at 62G.
and requirements set out therein … the approval thereof puts an end to their cause of
action.’
[15] As a result, I am prepared to assume in Techno Padel’s favour that this is an
additional basis relied upon for intervention. Indeed, s 4 of the Act provides that ‘no
person’, rather than the owner alone, may erect any building in respect of which
plans and specifications are to be drawn and submitted in terms of the Act. 25 Various
concomitant rights flow from this, including the right to a decision in respect of the
approval to erect a building, and an appeal against the decision of a local authority.
Techno Padel could conceivably have exercised such rights. As for a certificate of
occupancy, it is common cause that there was no certificate of occupancy issued at
the time the application was argued. 26 At least notionally, this too appears to be a
matter of concern to both an owner of any building and any person having an interest
therein, such as Techno Padel. 27 Considering these dimensions of the application,
and the relief claimed, Techno Padel could be said to have a direct and substantial
interest that transcends a ‘financial interest’, as the party that was responsible for the
erection of the courts, and as a party with an interest in occupying or using the
courts. As indicated, these matters are both pertinent to the core issue that was
before the court at the time the order was granted.
[16] There is, however, one further hurdle to cross. Th e approach in SA Riding is
different to that adopted in Swartland Municipality in respect of the extent of the right
to be demonstrated by the intervening party. In Swartland Municipality, the SCA held
that the High Court erred in failing to order the bank ’s joinder, despite the court’s
remarks that good cause for rescission was unlikely because the bank lacked any
defence to the claim for demolition. By contrast, In SA Riding , the Constitutional
Court held that while the intervening party did not have to s atisfy the court at the
Court held that while the intervening party did not have to s atisfy the court at the
stage of intervention that it would succeed, it remained necessary to make
allegations which, if proved, would entitle it to relief.28 Dendy and Loots explain that a
25 Cf Richter v Waterfall Equestrian Estate WUQF (Pty) Limited and Others [2014] ZAGPJHC 371;
[2015] 1 All SA 695 (GJ) para 53.
26 S 14 of the Act.
27 S 14(4)(a), quoted above n 3.
28 The Constitutional Court cited Flagstaff Municipality above n 8 at 679A with approval: in addition to
demonstrating a direct and substantial interest, the applicant must satisfy the court that the application
is made seriously and is not frivolous, and that the allegations made by the applicant constitute a
direct and substantial interest is a legal interest because it is premised on a legally
enforceable right, which must constitute a prima facie right or defence.29
[17] Applying SA Riding , I am satisfied that Techno Padel’s intervention
application is made seriously. 30 For different reasons to that presented in its papers,
I am also prepared to accept that it has a direct and substantial interest in the
subject-matter of the litigation. Techno Padel has, however, failed to make sufficient
allegations to demonstrate a prima facie defence to the respondents’ case for an
interdict, which was based on alleged non -compliance with the Act. The high -water
mark of the defence is that both the Club and Techno Padel believed ‘at the time’
that building plans were unnecessary, that this was ‘the first time [as far as Techno
Padel were concerned] that building plans have been required’ for padel courts, that
the requirement was ‘debatable’ and that the issue was ‘academic’ given that
building plans had since been approved.
[18] These averments are, at best, equivocal. To compound matters, Tec hno
Padel effectively admits, in reply, that matters pertaining to the building plan were left
to the Club, as the registered owner of the property. As a result, it cannot comment
as to any non -compliance with special conditions attached to the building pl an
approval. These allegations, taken together, fall short of what is required for
purposes of intervention. Techno Padel also fails to address the lack of a certificate
of occupancy. Occupation or use of a building, or permitting occupation or use,
absent a certificate of occupancy constitutes an offence in terms of the Act. 31 It is
common cause that, as matters stand, no certificate of occupancy has been issued.
This was a key aspect of the interdict application, together with the concern
pertaining to th e absence of building plans. While it was unnecessary for Techno
pertaining to th e absence of building plans. While it was unnecessary for Techno
prima facie case or defence, although it is not necessary for the applicant to satisfy the court that they
will succeed. See Soorju v Pillay 1962 (3) SA 906 (N): this means that the defence must be set up
honestly, disclose fully the nature and grounds of it and, in so far as it relies upon facts, lay before the
court facts which, if proved, will be a good defence. The question is whether, assuming those to be
the facts, the defence is good in law.
29 Dendy and Loots above n 15 at p 7 -32. At common law, it was often held that a person applying for
leave to intervene had to establish: (i) an interest in the suit, or that their interests would probably be
affected; and (ii) a common cause of action or common ground with the party with whom joinder was
being sought: at p7–53.
30 See Land and Agricultural Development Bank of South Africa v Lazercor Eight (Pty) Ltd and Others
2024 (6) SA 267 (WCC); [2024] 3 All SA 273 paras 30-33.
31 S 14(4)(a)(i).
Padel to demonstrate that it would succeed in staving off the interdict application,
assuming it were granted leave to intervene and that the order was rescinded, it was
obliged to make alleg ations which, if proved, would be a good defence. Given the
shortcomings with Techno Padel’s allegations in respect of both the building plans
and the certificate of occupancy, in my view it has failed to do so. As a result, applied
to the present circumst ances and absent a prima facie defence to the original relief
sought by the respondents, no purpose would be served by granting Techno Padel
the right to intervene.
Rescission
[19] If this analysis is erroneous, so that intervention ought to have been
permitted, it may be added that I find that Techno Padel has failed to establish a
common-law basis for rescission. 32 While I accept that it had good reason not to
oppose the applicatio n, on the basis that it had not been cited, it has failed to
demonstrate a bona fide defence which prima facie carries some prospects of
success. The reasons for this conclusion are apparent from the earlier analysis. In
short, the interdict application was premised on non-compliance with the Act. Techno
Padel’s tentative suggestions that building plans were either unnecessary, or have
now been approved, fall short of showing sufficient cause for the order to be
rescinded. That aside, the lack of a certific ate of occupancy, in contravention of the
Act, has not been addressed and constitutes a separate basis for the interdictory
relief obtained by the respondents. For this reason, too, the application must be
dismissed.
Order
[20] The following order is issued:
1. The application is dismissed with costs, including the costs of counsel on
Scale C.
32 See Zuma above n 5 para 71.
_________________________
A GOVINDJEE
JUDGE OF THE HIGH COURT
Heard: 13 November 2025
Delivered: 18 November 2025
Appearances
For the Intervening Party: Adv NJ Mullins SC
Instructed by: Francois Roux Attorneys
Gqeberha
For the 1st to 6th Respondents: Adv JG Richards SC
Instructed by: Friedman Scheckter
Gqeberha