IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
REPORTABLE : Y
OF IN EST
(1)
(2)
Y ES
R
CASE NO: 104577/2024
(3)
DATE
In the matter between:
AUBREY MAXWELL GOLDMAN
and
Applicant
MAGISTRATE D THALATSE MAGISTRATE FOR THE First Respondent
DISTRICT OF JOHANNESBURG NORTH HELD AT
RANDBURG
THE MINISTER OF POLICE Second Respondent
THE NATIONAL COMMISSIONER OF THE SOUTH Third Respondent
AFRICAN POLICE SERVICES
LIEUTENANT COLONEL KGOMOTSO GALETIOLE Fourth Respondent
OF VAAL RAND THE DIRECTORATE FOR PRIORITY
CR IM ~S 1"'1Vl=~Tl~ AT ION
WARRANT OFFICER JOHN RIKHOTSO GAUTENG Fifth Respondent
ORGANISED CRIME
WARRANT OFFICER ALBERT MASHANGOANE Sixth Respondent
GAUTENG ORGANISED CRIME
SEN IOR PUBLIC PROSECUTOR WYNBERG Seventh Respondent
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JUDGMENT
KLOEK, AJ
INTRODUCTION
1. On 18 June 2025, this Court was sitting as a Court assigned to deal with
unopposed applications. Mundanely, if a matter becomes opposed, it
loses its place on the unopposed roll. As the name of the roll suggests,
an unopposed Court is designed for unopposed cases. At the hearing,
Advocate E Dreyer appeared on behalf of the Applicant and Advocate
0 Mokoka appeared on behalf of the Second to Seventh Respondents.
The Applicant indicated to me that the "dispute" between the Applicant
and the Second to Seventh Respondents was in essence an
examination of the interpretation of Uniform Ru le of Court, 53(4) and
therefore the dispute before the Court was very limited in that sense.
However, the Second to Seventh Respondent beseeched this Court to
simply refuse to hear the application based on the grounds that it was
opposed, however no answering affidavit has been presented. I return
to thie ca o poot rnoro fu lly hc;rc;inbelow.
2. For expediency and in the interest of justice, this Court exercised its
discretion and indicated to the parties that short heads of argument
should be filed by the parties, wh ich both parties timeously did by 19
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June 2025, and the Court heard the submissions by the parties on 20
June 2025.
BACKGROUND FACTS
3. Owing to the limited nature of the issues appertaining this judgment, it
is unnecessary to narrate all the facts in the present application. It
suffices to mention that the Applicant approached this Court and sought
an order inter alia setting aside the search and seizure warrant issued
by the First Respondent, Magistrate Thalatse, on 1 February 2025
together with a declarator order that the search undertaken under the
auspices of the Fourth and Fifth Respondents by the Fifth and Sixth
Respondents be declared invalid and of no force and effect. The
Applicant therefore seeks to review the issuing of the search and seizure
warrant issued on 1 February 2025 and approached this Court pursuant
to Uniform Rule of Court 53. Further relief was sought in the notice of
mo tion dated 2 September 2024, however the Applicant did not persist
w ith the relief, save for an order for costs, wh ich was sought in the notice
of motion on an attorney and client scale. However, at the hearing
Advocate E Dreyer on behalf of the Applicant indicated that she no
longer persisted with costs on an attorney and client scale, but rather
sought costs of the application on a party and party scale, scale B.
RELEVANT TIMELINE
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4. The present application was initiated on or about 2 September 2024.
Pursuant to service of the application on the First Respondent on 3
October 2024 (the return of service indicating that the correct spelling of
the First Respondent is in fact "Phalatse" and not "Thalatse"), however
no amendment to the notice of motion was brought or sought at the
hearing.
5. The First Respondent indicated, and being represented by the State
Attorney, on 12 June 2025 that the First Respondent would abide by the
decision of this Court. Hereafter proper service was affected on the
Second, Third, Fourth, Fifth and Sixth Respondents during the period
25 September 2024 to 1 October 2024 respectively and notwithstanding
non-service on the Seventh Respondent, the State Attorney on 9
October 2024 indicated that they also act on behalf of the Seventh
Respondent. The notice of intention to oppose dated 9 October 2024
was served on the Applicant's attorney on 16 October 2024.
6. As expected, in review applications and due to the need to have access
to the full record, wh ich is fundamental to the proper ventilation of a
judicial review, the Office of the State Attorney on 13 November 2024
served the record on the Applicant's attorney.
7. Hereafter, the Second to Seventh Respondents failed to file an
answe ring affidavit. There was no dispute between the parties that the
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record was presented on 13 November 2024 and that the Second to
Seventh Respondent chose not to file an answering affidavit, in fact this
was common cause between the parties. The Second to Seventh
Respondents stated that the obligation to do so had as yet not arisen,
and that was the reason so provided that the answering affidavit was not
filed.
ANALYSIS
8. This application calls for the interpretation of Uniform Rule 53(4), which
reads as follows:
"(4) The applicant may within 10 days after the registrar has
made the record available to the applicant, by delivery of a
notice and accompanying affidavit, amend , add to or vary
the terms of such applicant's notice of motion and
supplement the supporting affidavit."
9. Advocate O Mokoka , appeared on behalf of the Second to the Seventh
Respondent, indicated to the Court that he sought a removal of the
matter from the roll on the basis that the matter is opposed. In essence,
the Second to Seventh Respondents say that they were awaiting the
App licant to amend , to add or to vary its notice of motion and once the
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Applicant had done so, the Applicant "should have and could have
notified the Respondents either that they had done so or if they had no
intention to amend and/or vary the notice of motion they could or should
have notified the Respondents that they had no intention to do so."
10. In turn, the Advocate E Dreyer on behalf of the Applicant, submitted that
there was no duty on the Applicant to inform the Second to Seventh
Respondents that they did not wish to amend the notice of motion. As
the Applicant had elected not to amend , add to or vary the terms of the
notice of motion or supplement the founding affidavit there was "no
obligation" in terms of the Uniform Rules of Court, Rule 53, to inform the
Second to Seventh Respondents of same and the Second to Seventh
Respondent should have filed there answering affidavit which they had
not done.
11 . Advocate E Dreyer therefore argued that Uniform Rule of Court 53(4)
was discreUonary In nature and the word "may " suggests that it is the
Applicant which can decide, in the Applicant's discretion, either to
amend and/or vary the terms of the Applicant's notice of motion and
upon a proper interpretation of Uniform Rule of Court 53(4), that
discretion remains with the Applicant and there exists no duty to notify
the Second to Seventh Respondents accordingly, should the Applicant
not wish to amend, vary or add.
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12. Furthermore, during the oral argument, Advocate O Mokoka indicated
that the obligation to file a notice of intention to oppose only arises after
the filing of the record and submitted, correctly so, that the Second to
Seventh Respondents were not obliged to take any steps to oppose the
application for review until a copy of the Record had been furnished.
13. The Court understood Advocate E Dreyer not to quarrel with the
submission that the Second to Seventh Respondents were not obliged
to take any steps to oppose the application for review until a copy of the
record was so presented on 13 November 2024. However, and what is
of import, thereafter the Second to Seventh Respondents failed to file
an answering affidavit.
14. Both counsels agreed that the meaning of the word "may" in Uniform
Rule 53(4) stood to be interpreted by the Court.
15. The Court now turns to meanings of the words "shalf' and "may' in
statutes is the subject of constant and conflicting interpretation. In
Northwest Townships (Pty) Limited v The Administrator, Transvaal
197 5 ( 4) SA 1 T at 12 F, Colman J adverted to the long line of authorities
stating at least as far back as Julius v The Bishop of Oxford (1880) 5
AC 214, and extending into the present decade, in which the Courts
have debated the question whether, and if so when , the word "may ' in a
statute means "musf' or "shalt'.
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16. When the words "the Court may" are used in a statute, they prima facie
suggest that a power is conferred upon the Court, which it can decide,
in its discretion, either to use or not to use. See Grosvenor Motors
(Cape) Limited v Samson 1956 (3) SA 169 C at 173A and furthermore
Wallace NO v Commercial Union Insurance Company of SA 1999
(3) SA 804 Cat 808 B-C, where it was stated that while the word "may''
does on occasion signify a power amounting in law to a discretion, that
is by no means necessarily so. In Shepstone & Wylie v Geyser NO
1998 (3) SA 1036 SCA at 1045 D, it was pointed out that the word,
standing on its own , is not particularly informative.
17. However, it is sometimes said that the word "may'', occurring in a statute,
often means "musf', but that is inaccurate. See Noble & Barbour v
SAR&H 1922 AD 527 at 540.
18. The Second to Seventh Respondents in support of their submission that
there w as a duty upon the Applicant to provide the Second to Seventh
Respondents with a notification where they opted to waive their rights in
terms of Rule 53(4), relied on the process of interpretation, which it
submits is objective, not subjective. In support of their submission, they
relied upon the principles as formulated by the Supreme Court of Appeal
in Natal Joint Municipal Pension Fund v Endumeni Municipality
2012 (4) SA 593 SCA. They furthermore relied upon the principles as
set out in Deputy Minister of Tribal Authorities and Another v
--------------- --- - - - --- ----·
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Kekana 1983 (3) SA 492 at p497 and Cape Town City v South African
National Roads Authority 2015 (4) SA 386 SCA at para 36.
19. Both these judgments, when considered are not authority for the
proposition or supports their submission as contended for by the Second
to Seven~ Responden~ .
20. Also, the word "may" in the context in which it is used was unambiguous
and had to be given its ordinary meaning which implied a discretionary
power.
CONCLUSION
21 . For all the above reasons, I find that there was no duty or obligation on
the Applicant to have notified the Second to Seventh Respondents that
they did not intend to vary or add or to amend the notice of motion or to
supplement the founding affidavit. It was for the Applicant to elect
whether to amend and/or to vary the terms of the notice of motion and
supplement the supporting affidavit.
22. I find that there was no duty on the Applicant to notify the Second to
Seventh Respondents of their election whether they intended or not to
amend or vary or ad to the notice of motion or founding affidavit. Upon
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a proper interpretation of Rule 53(4 ), it grants a discretion to the
Applicant to do what the rule in itself allows to be done.
23. The Second to Seventh Respondents did not to ask for a postponement
of the hearing and neither did they request an opportunity to file an
answering affidavit. In fact they persisted with the notion that their
answering affidavit is not due, which of course is incorrect for the
reasons as dealt with hereinabove.
24. I therefore find that there is no merit in the contention of Advocate 0
Mokoka acting on behalf of the Second to Seventh Respondents that
their answering affidavit is not due or that the Applicant has an obligation
to notify the Second to Seventh Respondents that they do not intend to
amend or vary or ad to the notice of motion or founding affidavit. He
furthermore did not join issue with the merits of the application.
25. The ordinary rule that costs should follow the result must apply and there
are no grounds before the Court to deviate from this principle and all
relevant circumstances justifies a cost order in favour of the Applicant.
26. With regard to costs as indicated hereinabove, initially in the notice of
motion costs were sought on an attorney and client scale against the
Second to Seventh Respondent, however at the hearing the Applicant
did not persist w ith such an order and the Court indicated to Advocate E
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Dreyer acting on behalf of the Applicant, that the application was not
served on the Seventh Respondent and therefore I did not believe that
it was proper that costs were to be granted against the Seventh
Respondent. Against this background, Advocate E Dreyer indicated that
she was not persisting with a cost order against the Seventh
Respondent and would be content with cost in favour of the Applicant,
granted on a party and party scale, scale B. Taking into account the
principles as set out in Mashavha v Enaex Africa (Pty) Limited and
others case number 18404/ 2022 by Wilson J, the Court is satisfied that
the scale on which costs are to be awarded should be on scale B.
ORDER
27. In the result I make the following order:
1. The search and seizure warrant issued by the First Respondent,
Magistrate Thalatse on 1 February 2024 is hereby set aside;
2. The search undertaken under the auspices of the Fourth and Fifth
R...,<rrn•n~~nto by tho Fifth and olXtfl ~esponaentS IS OeClareCJ
invalid and of no force and effect;
3. The Second to Six Respondents are to pay the costs of the
application jointly and severally, the one to pay the other to be
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J 'N tttOEK
ACTING JUDGE OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION
JOHANNESBURG
Electronically submitted
Delivered: this judgment was prepared and authored by the Acting Judge whose
name is reflected and is handed down · electronically by circulation to the
parties/their legal representatives by e-mail and by uploading it to the electronic
file of this matter on Caselines. The date of the judgment is deemed to be 24
November 2025.
Heard on 20 June 2025 decided on 24 November 2025
Counse l for the Applicant: Adv E Dreyer
Attorneys for the Applicant: M J Hood & Associates
Counsel for the Second to: Adv O Mokoka
Seventh Respondents:
Attorneys for the Second to:
Seventh Respondents:
State Attorney Johannesburg