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IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
CASE NUMBER: 2025-185201
Reportable: NO
Circulate to Judges: NO
Circulate to Magistrates: NO
Circulate to Regional Magistrates NO
In the matter between:-
FRANCOIS ANTHONY GERBER Applicant
and
JOE ALBERTO DA SILVA 1st Respondent
MARIA ALCINDA DA SILVA 2nd Respondent
This judgment is handed down electronically to the parties via email. The
date of the judgment is deemed to be 18 November 2025.
JUDGMENT
Reid J
Introduction
[1] In this urgent application the applicant seeks several interdicts, both
prohibitive and compelling, as well as monetary payments.
[2] The applicant is a tenant of the respondents and leases buildings from
the respondents from which the applicant does his business.
[3] The relief sought by the applicant can be summarised as follows:
3.1. That the application be heard as one of urgency.
3.2. Interdicting the respondents to:
3.2.1. not overcharge for electricity and water.
3.2.2. seize threats of eviction and removal of the applicant’s solar
panels.
3.2.3. remove all illegal pre -paid meters as per clause 11.3 of the
lease agreement and return to status quo as per the sales
agreement.
3.2.4. return all overcharged monies paid on illegal pre -paid meters
with immediate effect to the applicant’s nominated bank
account.
3.2.5. refrain from doing harm to the Companies Polar Ice and Ice
Cube Centre, whether the harm is financial, physical or
emotional.
3.2.6. refrain from insulting and damaging the reputation of the
applicant’s businesses to his clients.
3.2.7. not have any contact with the applicant.
3.2.8. return of all items agreed to in the Sale of the Businesses and
honouring both lease and sales agreements.
3.3. Payment of:
3.3.1. all the money owed to the applicant to date as well as to Mr
De Ponte and the employees.
3.3.2. R10 million to the applicant, R2,4 million to Polar Ice on behalf
of M De Ponte and R4 million to employees.
3.4. That the respondents pay the cost of this application, including the
costs of 7 October 2025.
Material factual background
[4] The 1st respondent is the registered owner of an immovable property
situated at Number 2[...] B[...] Road, Honingklip, Krugersdorp, Gauteng
("the property"). The applicant is a tenant of the property.
[5] The applicant is the sole director of 2 companies:
5.1. Polar Ice Distributors (Pty) Ltd, a private company duly registered
and incorporated in terms of the company laws of the Republic of
South Africa, with registration number 2015/020155/07 ("Polar
Ice"). Polar Ice conducts business from the property.
5.2. Ice Cube Centre (Pty) Ltd, a private company duly registered and
incorporated in terms of the company laws of the Republic of
South Africa, with registration number 2021/448439/07 ("Ice
Cube"). Ice Cube also conducts business from the property.
[6] Both Polar Ice and Ice Cube conduct business as manufacturers and
distributors of ice, supplying bulk and packaged ice products for
commercial purposes.
[7] On 30 November 2023, at Honingklip, Krugersdorp, the applicant and
1st respondent entered into written lease agreements with Polar Ice and
Ice Cube to lease the property to the applicant for commercial
purposes. The entities were duly represented by the applicant and their
erstwhile representative, Michael Salgado De Ponte ("De Ponte").
[8] The 1st respondent states that both Polar Ice and Ice Cube have on a
continuous basis breached the terms of the lease agreements by failing
to timeously pay the monthly rental and related charges on time or at
all.
[9] A litany of litigation followed.
[10] On 12 August 2025, the 1 st respondent’s attorneys of record caused
notices of breach to be delivered to Polar Ice and Ice Cube, which
notices advised them of inter alia the following:
10.1. At that stage, Polar Ice's rental was in arrears in the amount of
R41,829.44 (forty -one thousand eight hundred and twenty -nine
rand and forty -four cents) and Ice Cube's rental was in arrears in
the amount of R180 ,031.00 (one hundred and eighty thousand
and thirty- one rand).
10.2. They were afforded 20 (twenty) business days from the date of
the notices , until Monday, 11 September 2025, to remedy the
breach, failing which the lease agreements would be cancelled.
[11] The 1st respondent states that the breach was not remedied and on 15
September 2025, the respondents delivered notices of cancellation of
the agreements to the applicant. The applicant’s businesses remain in
occupation of the property.
[12] The respondents issued a commercial eviction application against the
applicant’s businesses on 3 October 2025 in the Gauteng Division of
the High Court, Pretoria. This eviction application is pending.
[13] On 1 October 2025, the respondents caused a rent al interdict
summons in terms of section 31 of the Magistrates' Courts Act , No 32
of 1944 to be issued against the applicant’s companies in the
Krugersdorp Magistrates' Court under case number 2385/2025 on the
basis that the companies allegedly are collectively indebted to the
respondents an amount of R316 ,914.69 by virtue of the lease
agreements.
[14] In September 2025, the applicant applied for a protection order against
the 1st respondent in the Krugersdorp Magistrate's Court in terms of the
Protection from Harassment Act 17 of 2011 ("the Harassment Act"). No
interim order was granted but the respondents were to show cause on
17 September 2025 as to why a protection order should not be granted.
[15] The 1st respondent denies harassing the applicant in any manner. The
harassment proceedings are pending.
[16] The applicant proceeded to have solar panels installed in the property,
despite the respondent’s allegation that the contract between them was
terminated and without the permission of the 1st respondent.
[17] On 1 October 2025 the 1 st respondent applied for a protection order
against the applicant in terms of the Harassment Act and an interim
protection order was granted.
[18] The 1 st respondent further states that he instructed his attorneys to
bring an application to inter alia declare that the unlawfully erected
additions and/or improvements must be removed, and that the property
must be restored to its prior condition. This application is also pending.
Respondent’s points in limine
Urgency
[19] The 1 st respondent submits that the application lacks the necessary
urgency that would warrant it to be heard on the urgent roll.
[20] The 1st respondent points out that, on the applicant’s own version, the
applicant has been victimised by the respondent’s actions since
December 2023.
[21] Based on the above points in limine, the 1st respondent submits that
the application should be dismissed, alternatively struck from the roll,
with costs.
[22] The 1 st respondent is correct that the applicant is disgruntled from
certain conduct of the 1 st respondent that, on the applicant’s own
version, arose during December 2023. The respondents claim that the
application is thus on the applicant ’s own version not urgent and ought
not be entertained by the urgent court.
Lis alibi pendens
[23] The applicant previously brought an urgent application against the
respondents in this Court under case number 2025 -179847 ("the first
application"), which was enrolled by the applicant on the urgent roll for
hearing on Tuesday, 7 October 2025. The first application was duly
opposed by the respondents and at the hearing thereof Yacoob J
struck the matter from the urgent roll and reserved costs.
[24] Subsequent thereto, the applicant brought this application on 8 October
2025 and set it down on the urgent roll for hearing on Tuesday, 14
October 2025.
[25] The respondents claim in this application that the applicant seeks
substantially the same relief, against the same parties, founded on the
same cause of action, as raised in the first application and it is
submitted on behalf of the respondents that this application ought to be
dismissed, alternatively struck from the roll, alternatively stayed
pending the outcome of the first application, with costs.
[26] The first urgent application before Yacoob J has not been finalised. It
has been struck from the roll and costs were reserved. This means
that the applicant should re -enrol the application on the normal roll, not
the urgent roll, for the merits to be dealt with. The reserved costs are
also then to be argued and determined when the matter is heard on the
normal roll.
[27] The previous urgent application, as well as the harassment
proceedings in Krugersdorp, has the effect that this application is lis
pendens.
No founding affidavit
[28] Uniform Rule 6 of the High Courts determines that an application shall
be accompanied by an affidavit. An affidavit is defined as a statement
in writing sworn to before someone who has the authority to administer
an oath. An oath or affirmation is governed by the Justices of the
Peace and Commissioners of Oaths Act, No 16 of 1963 ("the Act").
[29] The 1st respondent claims that the applicant’s statement lacks the
essential attestation or certification by a commissioner of oaths and
does not comply with the requirements determined in Rule 6.
[30] The 1st respondent is correct in this assertion. The founding affidavit
lacks the essential attestation. This results in the application not being
duly before this Court. In the absence of a proper founding affidavit ,
there is no application before this Court. In the absence of an
application, the matter cannot be heard.
Non-joinder
[31] The 1st respondent states that the applicant has irregularly sought relief
in his Notice of Motion on behalf of his companies, Polar Ice and Ice
Cube as well as his partner, Du Ponte, without these parties being
joined in this application.
[32] The 1st respondent contends that the failure to join Polar Ice, Ice Cube
and Du Ponte as applicants to the application, results therein that the
relief sought on their behalf cannot be granted.
[33] The 1st respondent is correct that the 3rd parties such as Polar Ice, Ice
Cube and Du Ponte have an interest in the outcome of the matter. On
that basis they should have been joined as parties in these
proceedings.
[34] Without joining all the parties that have an interest in the outcome in
the proceedings , the matter cannot proceed before this Court and is
fatally defective.
[35] In the event that I have been incorrect in any of the above conclusions,
I proceed to deal with the merits of the application.
The applicant’s case
[36] The applicant states that he has been the victim of “ illegal self -
enrichment and fraudulent activities ” of the two respondents from
inception of his companies on 1 December 2023. These illegal self -
enrichment and fraudulent activities include , but is not limited to,
overcharging the electricity with illegal pre -paid meters ( which the
applicant contends to be a direct contravention of clause 1.3 of the
lease agreement) and the illegal self -enrichment of Eagles Crest
Properties where no plans have been approved to construct the
properties.
[37] The applicant claims that the electricity supply to his business is
diverted to the tenants who reside in flats above his premises , forcing
both the applicant and tenants to pay for electricity. The applicant
further contends that Eagles Crest Properties are not VAT registered
but earns approximately R1 million per annum and have submitted zero
tax returns for the past 8 years. The applicant contends that Eagles
Crest Properties earns approximately R100,000 per month. He further
argues that the employees have not received any increase for a period
of 8 years . The applicant claims that the respondents pay their
employees R8.52 below the minimum wage per hour.
[38] The applicant states that he has suffered the financial loss in the
amount of R565,000 as he was forced to pay cash for stock to the
value of R396,000 and Ice Cube Centre paid rent to the 1st respondent
in cash for months. The applicant states that his auditor informed him
that he will not be able to claim the rent back as the bank statements
do not reflect cash payments . All the payments to the respondents
were made on a cash basis at the insistence of the respondents . This,
the applicant contends, indicates sinister motives.
[39] The applicant refers to Clause 16.1 of the Sales Agreement which
determines that the applicant has the right to claim damages from the
respondents. In this application, the applicant believes that he is
exercising that right as to claim his cash expenses back . The
agreement between the parties determines that the tenant can pay for
electricity on a monthly basis, where the respondents demands
payment on a daily basis. The applicant states that his electricity on
one day was approximately R25,000.
[40] The applicant claims that he, as a tenant, needs protection against the
lawlessness of the respondents as the lives of individuals are at stake,
on the basis that the respondents on 3 occasions have pumped
sewerage water through the erf, despite warnings from Environmental
Health Westrand . Water went up by 25% where lease agreement
states 5% per annum.
[41] The applicant requests:
“In the event of my application being granted I request a full
investigation into Meterman's illegal involvement and abuse of
powers and want them reported for their illegal activities and
self-enrichment. I request a full disclosure of the tariff increases
of the top houses as to prove vindictiveness and illegal targeting
of both my businesses.
…
I beg for justice served to put an end to this destruction they
create in their path. I beg this Court to grant an immediate
interdict against the relentless harassment from both the previous
Directors and their accomplice, namely Meterman who clearly
acts on the instructions of these serial lawbreaking individuals.
…
I ask this Honourable Court to bring justice to my application as to
reinstate my businesses to what was bought in the first place. To
honour ALL agreements and expenses (ELECTRICITY) in
particular and return prosperity and peace to 2[...] B[...] Road
Honingklip Krugersdorp.”
As it a matter of PUBLIC INTEREST and society needs protection
against this unscrupulous unethical deliberate misconduct, I ask
for immediate arrest warrants being issued as to protect the public
against their deeps. As both will be considered a flight risk (even
suicidal risk) all Passports needs revoking and as I feel unsafe
and now a target of revenge, I request that ALL FIREARMS BE
SEIZED that includes the Da Silvas as now they have nothing to
lose.”
[42] This sets the tone for the applicant’s statements both in founding and in
reply.
The respondents’ case
[43] I have set out the details of the respondent’s case with the points
raised in limine, as well as the answers to the allegations made by the
applicant.
[44] The respondents respond to most of the allegations made by the
applicant, as follows: “… they are confusing, speculative, completely
fabricated and false.”
[45] It is argued on behalf of the respondents that a ny VAT that was levied,
was not payable to the respondents, but reflected the VAT as charged
by ESKOM, and payable to ESKOM. This was done separately, on the
invoices provided to the applicant in respect of the utilities . The
applicant requested proof that the V AT received by the respondents
was paid over to SARS. The respondents argue, rightfully so, that they
do not have to prove to the applicant that they have paid SARS.
Should the applicant so wish, he may lay a complaint against the
respondents at SARS.
[46] The respondent s have already instituted eviction proceedings as
described herein above in order to enforce their rights as the lawful
owners of the property.
[47] The merits of this dispute is thus sub judice and is not for this Court to
determine.
Analysis
[48] This matter has been set down by the applicant on the urgent roll. The
applicant must show that he will not otherwise be afforded substantial
redress at a hearing in due course. See: Luna Meubel Vervaardigers
(Edms) Bpk v Makin (t/a Makin’s Furniture Manufacturers) 1977 (4) SA
135 (W) at 137F.
[49] The applicant has, on more than one occasion, indicated that the
conflict between him and the respondents commenced from November
/ December 2023. This does not support sufficient allegations to make
the matter urgent.
[50] The mere fact that the applicant desires urgent relief, does not make
the matter urgent.
[51] I therefore find that the matter is not urgent.
Relief sought
[52] The applicant approaches this Court for relief that entails both
interdictory relief (applicable in application proceedings) and monetary
relief (applicable in action proceedings).
[53] At the onset it has to be recorded that monetary relief, and specifically
the relief sought by the applicant, is not to be brought on application
proceedings. The correct procedure is that the applicant should issue
summons and claim the monetary relief, as oral evidence needs to be
lead and various versions must be tested under cross examination .
The incorrect procedure is being used in casu. The applicant should
make use of the action process (summons), and not the application
process (motions).
[54] The claim for monetary relief is not a liquidated amount and is disputed.
This is not something that can be determined on papers in an
application but should be determined by the applicant instituting action
proceedings with a summons and particulars of claim.
[55] The monetary claim of the application should be dismissed, in order to
afford the applicant, the opportunity to use the correct procedure,
namely action proceedings and issue summons.
[56] I summarise the points in limine individually:
56.1. Lis alibi pendens: There are proceedings pending in the
Krugersdorp Magistrates Court that was instituted by the applicant
against the respondents (for inter alia harassment) and there are
proceedings pending in the Krugersdorp Magistrate Court
instituted by the respondents against the applicant for recovery of
alleged outstanding rental payments. The correct procedure
would be that the applicant institute a counter -claim against the
claim of rent, in order to claim for the monetary compensation as
incorrectly claimed in this application. This point in limine is
upheld.
56.2. No founding affidavit: Rule 6 sets out the detailed specifications
of what is required to be contained in an application to be
recognised as a proper application before court. One of the
requirements is that the founding affidavit (and all the other
affidavits) be made under oath. The applicant ’s founding and
replying affidavit is not made under oath or confirmation. This
results therein that the application is fatally defective. This point
in limine is upheld.
56.3. Non-joinder: The applicant refers to entities that are not before
this Court, such as his companies and the companies of the
respondents. These entities each have their own legal persona
and should be cited separately before court. This was not done.
This point in limine is also upheld.
[57] Having upheld the points in limine, this application stands to be
dismissed.
[58] In relation to the merits of the application, t he application that served
before Yacoob J has not been disposed of, and the applicant is to set it
down on the normal roll for hearing.
Costs
[59] The general principle is that the succe ssful party is entitled to its costs.
I find no reason to deviate from the general principle.
[60] The respondents request cost on a punitive scale. I do not agree , as
the applicant is litigating in person and as set out in the judgment,
many of the issues involve the application of legal princi ples. I am not
of the opinion that the applicant was vexatious or mala fide in launching
the application. It is clear that the relationship between the applicant
and respondents have broken down and mainly involves
[61] In Mashavha v Enaex Africa (Pty) Ltd 2025 (1) SA 466 (GJ) it was said
by Wilson J that:
“[15] It also seems to me that the rule implies that the power to
reduce the scale on which counsel’s costs are awarded should
be exercised sparingly, and only where a case for its exercise
has been made out. A judge generally approaches a case on the
assumption that it has been competently litigated, that counsel
has done what is within their power to ensure substantial
compliance with the applicable rules, and that argument and
evidence has taken as long as it needs to take. It is only where
there has been a marked departure from these norms that a
court should consider lowering the scale on which counsel’s
costs are awarded.
[16] Likewise, the default position set under the rule is that, in
the absence of contrary indication, counsel’s costs will be
recovered on scale A. Scale A, it seems to me, is the
appropriate scale on which to make an award unless the
application of a higher scale has been justified by careful
reference to clearly identified features of the case that mark it
out as unusually complex, important or valuable. Run -of-the-mill
cases, which must be the vast majority of cases in the High
Court, should not attract an order on the B or C scales.”
[62] In application of the principle set out by Wilson J in Mashavha above,
the applicant should be ordered to pay the costs of the respondents on
Scale A, party and party costs.
Order
In the result, I make the following order:
(i) The application is dismissed.
(ii) The applicant is to pay the costs of the application on Scale A,
party and party.
FMM REID
JUDGE OF THE HIGH COURT
GAUGENG DIVISION JOHANNESBURG
DATE RESERVED: 14 OCTOBER 2025
DATE OF JUDGMENT: 18 NOVEMBER 2025
APPEARANCES:
FOR APPLICANT: MR GERBER IN PERSON
Polaricefw2023@gmail.com
FOR RESPONDENT:
KAPP ATTORNEYS
TEL: 010 025 0560
E-MAIL: tienie@kappas.co.za
litigation@kappas.co.za