REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
LIMPOPO DIVISION, POLOKWANE
(1) REPORTABLE :"fES/NO
(2) OF INTEREST TO THE JUDGES : ~/NO
(3) R EV ISED.
In the matter between:
MC TEE HOLDINGS
And
MEC FOR SOCIAL DEVELOPMENT,
LIMPOPO PROVINCE
CASE NO. 4224/2025
APPLICANT
1 ST RESPONDENT
THE DEPARTMENT OF SOCIAL DEVELOPMENT ,
LIMPOPO PROVINCE
HEAD OF DEPAR TMENT OF SOCIAL
DEVELOPMENT , LIMPOPO PROVINCE
In Re:
MEC FOR SOCIAL DEVELOPMENT ,
LIMPOPO PROVINCE
THE DEPARTMENT OF SOCIAL DEVELOPMENT ,
LIMPOPO PROVINCE
HEAD OF DEPARTMENT OF SOCIAL
DEVELOPMENT , LIMPOPO PROVINCE
And
LELEDU SECURITY SERVICES CC
PETKA Y TRADING ENTERPRISES (PTY) LTD
OMPWA TRADING EN TERPRISE CC
GIJA SECUR ITY SERVICES
2 ND RESPONDENT
3 RD RESPONDENT
1 sr APPLICANT
2 ND APPLICANT
3 RD APPLICANT
1sr RESPONDENT
2 ND RESPONDENT
3 RD RESPONDENT
4 TH RESPONDENT
NKARI SECURITY AND PROJECTS 5TH RESPONDENT
MAREBOLE SECURITY SOLUTIONS 5TH RESPONDENT
MC TEE HOLDINGS 7TH RESPONDENT
PAPA MIKE PROJECTS srH RESPONDENT
BRAVOSPAN 90 CC grH RESPONDENT
VHUTAKA GENERAL TRADING 10TH RESPONDENT
TUBATSE SECURITY SERVICES 11 TH RESPONDENT
MPHO JEANY MOKHUDU 12TH RESPONDENT
PHETOLO RAMAKEPE 13rH RESPONDENT
ELICIA VU KEY A 14TH RESPONDENT
NYAUME PATRICK THOBEJANE 15TH RESPONDENT
POLE ALFRED SEOPA 16TH RESPONDENT
MPHAKI DANIEL MASEMOLA 17TH RESPONDENT
JOSEPH TSHISIKWANE 18TH RESPONDENT
DESMOND MAHOPO 1 grH RESPONDENT
Delivered: This judgment is handed down electronically by circulation to the
parties through their legal representatives' email addresses. The date for the
hand-down is deemed to be _ November 2025.
JUDGMEN T
Masilo AJ
Introd uction
[1] On 16 April 2025 the Applicants launched an urgent application for the
review and setting aside of Tender DSDP 05/22-22/22 aw arded to the
first to eleventh Respondents. The application was set to be heard on 3
June 2025. The matter was accordingly opposed.
[2] On 30 May 2025 the Applicants apparently served by email a copy of an
application for admission of explanatory affidavit of one Nanda Anna
Ndalane as evidence in the ma in application. This application was also
allegedly loaded on case line at 02h00 of 3 June 2025. In paragraph 3
is a prayer on costs, which interestingly reads: -
"3. Directing any of the Respondents who successfully
opposes this application, to pay the Applicants' costs,
inclusive of the payment of two counsel on an attorney and
client scale."
[3] On 3 June 2025 at 02h00 the application was loaded on caselines. The
matter was then removed from the roll as it had become opposed.
[4] On 8 August 2025, this matter appeared before Nkoana AJ who decided
that the matter is removed from the roll and costs reserved. The court
directed that the parties approach the Judge President for a special
allocation that the Rule 30(1) application be heard first.
[5] On August 2024, the Applicants and the 7th Respondent wrote to the
Judge President in which they requested a preferential date for hearing
of the Rule 30. On 26 August 2025 the Office of the Judge President
allocated the date of 25 September 2025 as a date for hearing of the
Rule 30(1).
[6] The 7th Respondent served and filed a Notice of Set down of the hearing
of the Rule 30(1) application accordingly. It is important to note that at
the top left end of the Notice of Set Down , the 7th Applicant inserted the
words "In the Rule 30(1) application. On the 2nd page in between the
tramlines the Notice of set down read: -
Notice of Set Down
Be Pleased to take notice ... "
[7] This Notice of Set Down was served on the parties by em ail. On 25
September 2025 at 03h00 the Applicants filed a Practice N ote, which on
page 5 para 2-4 read as follows-
"2. Dispensing with the forms and service provided for in the
Rules of the above Honourable Court and allowing the
matter to proceed as one of urgency in terms of the Rule
6(12) and condoning any non-compliance with the Rules by
the Applicant;
3. Condoning non-compliance with the Practice Directive of
the above Honourable Court;
4. Condoning the service of the application on the Respondents
by way of e-mail address or other appropriate means of
service other than by the Sheriff/Deputy Sheriff of the High
Court ("the Sheriff'?;"
[8] Further, the Applicants filed a Practice Note, wh ich read on page 6 para
5 wh ich read as follows -
"Directing the First to the Eleventh Respondents to pay the
Second Applicant's costs on an attorney and client scale which
is to include the costs of the employment of Senior and Junior
Counsel;"
[9] On 25 September 2025, pursuant to the Notice of Set Down , and the
Practice Note, the 1 st to 3rd Respondents, 6th Respondent, 11 th
Respondent, 14th Respondent, 16-19th Respondent appeared in court,
along with the Applicants and 7th Respondent who are in the Rule 30
(1) application.
[1 O] The 1 st to 3rd Respondents, 6th Respondent, 11 th Respondent, 14th
Respondent, 16-19th Respondent sought costs for the day, given the
fact that they were not parties in the Rule 30(1) but came specifically
because costs orders on an attorney and client scale was sought against
them, despite not being party to the interlocutory applications.
[11] The 1 st to 3rd Respondent also lamented that they were not served with
the application by the Applicants for admission of the "Explanatory
Affidavit", which is the subject of the Rule 30(1 ). The Applicants insisted
that the 1 st to 3rd Respondents were served on 30 May 2025. Further,
that they were aware of the fact that there is the application by the
Applicants for admission of the "Explanatory Affidavit", since 3 June
2025 alternatively since 8 August 2025.
[12] The court had to direct that a service affidavit and proof of service by
email be made available to the court at 14h00. Further, that the pt to 3rd
Respondents be served with a copy thereof for them to respond and be
able to answer for their representations. The court was at 14h00 advised
that apparently, the service of the application by the Applicants for
admission of the "Explanatory Affidavit", was served by email at the
incorrect email address which does not belong to the 1 st to 3rd
Respondents' attorney Ms. Judy Nchabeleng. Further, that only at
14h09 on 25 September 2025 was the application by the Applicants for
admission of the "Explanatory Affidavit" served on the 1st to 3rd
Respondents.
[13] The Applicants sought to persist on the fact that despite the non
compliance with Rule 6(5)(a), the 1st to 3rd Respondents were aware of
the application and therefore, they waived their right to object and the
court must proceed to hear the Rule 30(1) application.
[14] The 7th Respondent, the 1 st to 3rd Respondent insisted that the matter
be removed or postponed so as to avoid prejudice to any of the parties
with the Rule 30(1) proceeding without affording the 1 st to 3rd
Respondents their right to consider the application by the Applicants for
admission of the "Explanatory Affidavit". Further, that on the question of
costs, that the parties are out of pocket as a result of the conduct, failure
and/or omission of the Applicants to comply with the Rules of court.
[15) It is trite that the Uniform Rules of court read with the Practice Directives
of this court govern the conduct of proceedings. Of paramount
importance is that Rule 6(5)(a) is crafted in peremptory terms and
enjoins an applicant to serve the true copy of the notice and all
annexures thereto.
[16) I have noted that in the Rule 30(1 ), one of the cause of complaint is that
the 4 annexures in the Explanatory Affidavit of Ms . NA Ndalane sought
to be admitted were not attached. This omission invites the provisions
of Rule 6(5)(a).
[17] There is a pattern of lackadaisical dealing with this matter on the part of
the Applicants' attorney. The service of the application, the loading on
case lines, annexures not attached to this application by the Applicants
for admission of the "Explanatory Affidavit".
[18] It is trite that non-compliance with the Rules of Court, renders the
process susceptible to being assailed by the aggrieved party in terms of
the Uniform Rules of Court. It is undisputable that the application by the
Applicants for admission of the "Explanatory Affidavit" was not served
on all parties prior to 25 September 2025. The 1 st to 3rd Respondents
were only served at court at 14h09 on 25 September 2025. This is the
main and real reason why the matter (I say matter, specifically looking
at the application by the Applicants for admission of the "Explanatory
Affidavit" and the 7th Respondent's Rule 30(1) application) was not able
to proceed and not heard as set down.
(19] The 1st to 3rd Respondents, 61h Respondent, 11th Respondent, 14th
Respondent, 16-1 gth Respondent appeared in court asking for costs, as
they were lugged before court by the Applicants and the 7th Respondent.
The most important part being the prayer for costs on attorney and client
scale, including costs of two counsel against the 1 st to 11 th Respondent.
The 141h Respondent's Counse l Mr. Baloyi conceded that he came on a
watching brief as no costs were sought against his client.
[20] As indicated above that the Applicants have been remiss in the handling
and management of this matter, resulting in the Respondents being
before court on 25 September 2025 so as to avoid a punitive costs order
which they were fore-warned would be asked for against anyone who
successfully opposes the application for the Applicants to file an
"explanatory Affidavit", in the Notice of Motion. Further, they were fore
warned in the Practice Note that costs will be sought against them. This
is against the backdrop that the App licants contend it was an error to
include that prayer in the Practice Note.
(21] It is undeniable that the 1 st to 3rd Respondents, 6th Respondent, 11 th
Respondent, 14th Respondent, 16-1 gth Respondent incurred costs
occasioned by 25 September 2025 appearance. The Applicants dispute
that the 1 st to 3rd Respondents, 61h Respondent, 11 th Respondent, 14th
Respondent, 16-19th Respondent, needed to prepare and read some
3000pages, as the main application is not before court for consideration,
what is before court is the small interlocutory applications which do not
constitute even 1 00pages.
(22] The courts have always held that a Counsel briefed to appear to ask for
a postponement, must not assume that the postponement would be
granted and not prepare to proceed in the main. In such an instance, the
counsel briefed to be in court must prepare as if the matter is to proceed.
For that reason, it is not inconceivable for counsel for the Respondents
to claim that they needed to prepare themselves to come to court, given
that the Rule 30 application was to be heard and if dismissed then the
application for leave to file a Supplementary Affidavit would have to be
heard.
(23] It is therefore not unpalatable for the 1 st to 3rd Respondents, 6th
Respondent, 11 th Respondent, 14th Respondent, 16-19th Respondent to
claim to have had to prepare themselves for court to oppose the prayer
for punitive costs against them. In order to do so they wou ld have
needed to be acquainted with all the papers including the main
application.
[24] The common denominator in everything that took place on 25
September 2025, and that brought the 1 st to 3rd Respondents, 61h
Respondent, 11 th Respondent, 14th Respondent, 16-191h Respondent to
court, as well as to result in the postponement of this matter was the
Applicants. either by action or omission.
(25] It is therefore inexorable that the Applicants are the cause of the 1 st to
3rd Respondents, 61h Respondent, 11th Re spondent, 14th Respondent,
16-19
th
Respondent appearance in court on 25 September 2025.
Further, it is inescapable that failure to serve the 1 stand 3rd Respondent
with the application to admit the "Explanatory Affidavit", which was the
subject of the Rule 30(1) application capitulated the hearing of the Rule
30(1) by the 7th Respondent and caused the postponement of this
matter.
[26] I therefore find that the App licants are the cause of the 1 st to 3rd
Respondents, 6th Respondent, 11 th Respondent, 14th Respondent, 16-
1 gth Respondent appearance in court, and cannot escape the
consequence of the inconvenience caused and resultant costs incurred
by the listed Respondents. It is only appropriate that the Applicants are
ordered to pay the costs occasioned, being the costs of 1 day for
preparation and the costs of court appearance on 25 September 2025.
[27] With regard to the postponement, it is trite that he how seeks indulgence
must pay the costs. It is the App licants who seek the indulgence to
comply with Rule 6(5)(a) for their failure to serve the Applicants'
application to admit an "Explanatory Affidavit" upon the 1 st to 3rd
Respondents. Further, that non-compliance with the Rules of Court, is
to be visited w ith an appropriate order of costs.
[28] As set out in LAWSA, 1 with reference to relevant case law:2
'The general rule is that, wh ere a party is responsible for a case
not being proceeded with on the day set down for hearing, such
party m ust pay the costs that are wasted. It is not correct to state
as a general rule that wasted costs are to be paid by the party who
1 The Law of South Africa, Vo l. 10 3rd ed. "Co sts" para 314.
2
Including Burger v Ko tze and Another 1970 (4) SA 302 (W) at 304E-H ; Sublime Technologies (Ply)
Ltd v Jonker and Ano ther 201 0 (2) SA 522 (SC A) para [3].
seeks a postponement. That may be the normal order if no-one is
to blame for the fact that the trial has to be postponed, but if a
postponement has become necessary in consequence of the fault
or default of one of the parties or his or her representative, the
normal rule is that the wasted costs are awarded against the party
who was at fault or in default.'3
(29] This approach was exemplified in the judgment of the matter of Sanvido,4
where, the Court (per Berman AJ, as he then was) ordered the defendant
to pay the costs occasioned by, and attributable to, the notices of
intention to amend; the costs of the plaintiff's application for a
postponement and for payment of wasted costs; and the costs
wasted as a result of the postponement of the trial. Berman AJ also
inter alia stated the following in support of those orders:5
'Here was a case where significant amendments were moved at a
very late stage and -as I made clear in Manus v Nelson (supra)6 -
where a party is in no position to resist an application for a
postponement of a trial, brought as a result of its having made late
discovery (as in Manus' case) or as a result of substantial
3 See, too, the com ments in the same paragraph of the LAWSA "Costs" section under the heading
"Costs of the day", where it is stated that a litigant who forces another party to apply for a
postponement must, in the normal course, pay the costs of the (wasted) day or other wasted costs.
4 Sanvido & Sons (Civil Engineering) (Ply) Ltd v Aglime (Ply) Ltd 1984 (4) SA 339 (C).
5 Sanvido supra fn.4 at 343F-G .
6 1982 (2) PH F62 (C).
amendments made at a very late stage (as here), it would have to
show very strong grounds for depriving the other party of its costs
or for delaying argument as to liability therefor.'
(30) In the circumstances, I order that the Applicants are to pay the wasted
costs of the 1 st to 3rd Respondents, 6th Respondent, 7th Respondent, 11 th
Respondent, 14th Respondent, 16-19th Respondent. Such costs to
include costs of 1 day preparation and 1 day for court appearance on 25
September 2025. Such costs to be taxed at Scale B.
ORDER
[31] In the circumstances I mak e the following order:
1 . The Applicants are to pay the costs of the 1 st to 3rd Respondents, 6th
Respondent, 7th Respondent, 11 th Respondent, 14th Respondent, 16-
19th Respondent. Such costs to include costs of 1 day preparation and
court appearance on 25 September 2025.
2. Such costs to be party and party costs to be taxed at scale B.
ACTING JUDGE OF THE HIGH COURT
LIMPOPO DIVISION
APPEARANCES:
FOR APPLICANT
Instructed by
FOR 1st - 3rd RESPONDENT
ADV Mathibedi SC
State Attorneys
Adv K.Mokwena
Adv C Mara is 7th Respondent
Adv P Thobejane 9th Respondent
Adv Kgafane 11 th Respondent
Adv Baloyi 14th + 17th Respondent
Adv A . T Thobejane 6th Respondent