IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
Case number: 2025-075815
In the matter between:
ROBERTO GARDINI Applicant
and
THE GARDINI COLLECTION (PTY) LTD First respondent
JASON GARDINI Second
respondent
REASONS DELIVERED ON 26 NOVEMBER 2025
VAN ZYL, AJ:
Introduction
"Good faith is a sine qua non in ex parte applications. If any material facts
are not disclosed, whether they were wilfully supressed or negligently
omitted, the court may on that ground alone dismiss an ex parte
application. The court will also not hold itself bound by any order obtained
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under the consequent misapprehension of the true position. ... "1
1. This matter involved cars, good faith, and the anticipation of a rule nisi
granted against the respondent s on 29 May 2025 on an ex parte basis.
In terms of the interim order, read with Rule 6(8), the respondents were
entitled to anticipate the return day on not less than 24 hours' notice.
2. On 17 June 2025 I granted an order in the following terms:
3.1 The rule nisi granted ex parte on 29 May 2025 at the applicant’s
behest is set aside.
3.2 The applicant shall pay the respondents’ costs on the scale as
between attorney and client.
3. These are, briefly, the reasons for the grant of the order. I was in
agreement with the submissions made by the respondents’ counsel that
the interim order had been granted because of various material
nondisclosures by the applicant in the ex parte application. Had the
Court known of the true facts at the time, it would probably not have
granted the order.
The interim order
4. The first res pondent was incorporated in 2024. Its business is the
renting of vehicles to mainly foreign clients in Cape Town on a short -
term basis. It accordingly purchased various vehicles for that purpose.
The second respondent is the first respondent’s sole director, and the
applicant’s son.
5. In the ex parte application the applicant motivated the need for an order
1 Bertelsmann et al Erasmus Superior Court Practice (Juta, looseleaf) at B1-42.
on various bases. The applicant claimed true ownership of the vehicles
registered in the first respondent’s name, alleging that those vehicles
had been purchased with funds he had provided; and tha t ownership
remained with him until the respondents repaid the amounts owed. The
applicant alleged that the respondents owe him USD 781,566.54, which
included loans and investments made to supp ort the first respondent's
business and the second respondent's personal expenses.
6. The applicant contend ed that the respondents were dissipating the
assets of the first respondent, including selling vehicles without his
consent, which jeopardize d his ability to recover the debt owed. Here
therefore sought an urgent ex parte preservation order to prevent the
respondents from further dissipating assets, arguing that the first
respondent was insolvent and that the dissipation w ould leave it as an
empty shell, making recovery impossible.
7. The interim order subsequently granted prohibited the first respondent
company from “disposing or concealing ” of any of its assets , including
cash, its bank accounts, and eight motor vehicles which are listed in the
order, namely an Aston Martin, a Range Rover, a Jeep, a Mini Coopeer,
a Maserati, a Vespa scooter, a BMW 650i, and a BMW 320i.
8. The interim order was undoubtedly wide -ranging in effect, as it
effectively prevented the first respondent from conducting any
business.2 While it was theoretically possible for the first respondent
rent out its vehicles, it c ould not dispose of any funds from its bank
account in order to manage the business. The vehicles constitute one of
the respondents’ bones of contention with the applicant: they say that
the applicant knew that some of the vehicles listed in the interim order
had already been sold and thus no longer belonged to the first
respondent.
2 Going to the balance of convenience.
9. The ex parte application was but part of a wider landscape of litigation
between the parties. During early 2025 the first respondent launched
an urgent application in which it sought an order that the applicant
return a BMW 650i motor vehicle to it (“the BMW appli cation”). That
application was opposed, and the first respondent delivered a replying
affidavit in April 2025 which was deposed to by the second respondent.
As will be seen, the content of the replying affidavit was important in
relation to the non-disclosures that the respondents complained of. The
applicant did not indicate to the court in the ex parte application that
there were allegations in the replying affidavit that could have had a
material impact on the outcome of the ex parte application.
10. In relation to the BMW dispute, the first respondent also launched an ex
parte application pursuant to which a bank account owned by the
applicant was attached in April 2025 to confirm jurisdiction for a
damages claim by the first respondent against the applicant (“the
jurisdiction application”), as the applicant resides in Zimbabwe and is a
peregrinus. The claim arose from the applicant’s alleged unlawful
possession of the BMW. Th e jurisdiction application, which is opposed,
will be determined on a return day enrolled during January 2026.
11. In the present ex parte application, the applicant did not disclose certain
material disputes between the parties which arose from the jurisdiction
application, and which could have had an impact on the outcome of the
ex parte application.
The relevant legal principles
12. The principles underlying the anticipation of an interim order granted in
a party’s absence are well-known:3
"A person against whom an order was granted in his absence in an urgent
application. may simply by notice set the matter down for reconsideration of
the order. The reconsideration of the matter can be performed on the basis of
a set of circumstances quite different from that under which the original order
was obtained. The jurisdictional facts establishing the discretion provided for
are (i) the granting of an order in the absence of the party affected thereby (ii)
by way of urgent proceedings as intended under rule 6(12). The court has a
wide discretion to redress imbalances in and injustices and oppression flowing
from an order granted in urgency and in the absence of the affected party. An
order under this provision is not the same as the discharge of a rule nisi. The
court redetermines the matter. This it ma y do with reference not only to the
matter that was before it when the order was granted but it may take into
account all the relevant and permissible facts that are before it at that stage."
13. Under Uniform Rule 6(12)(c) the court has a wide discretion , and “the
factors which may determine whether an order falls to be reconsidered,
include the reasons for the absence, the nature of the order granted
and the period during which it has remained operative. Other factors to
be taken into consideration will be whether an imbalance, oppression or
injustice has resulted, and, if so, the extent and nature thereof, and
whether alternative remedies are available . The convenience of the
parties is another factor to be taken into consideration. ... ".4
14. A century ago, Estate Logie v Priest5 held that in an ex parte application
the utmost good faith must be observed by an applicant. A failure to
disclosure fully and fairly all material facts known to him or her may
lead, in the exercise of the court's dis cretion, to the dismissal of the
3 See the discussion in Harms Civil Procedure in the Superior Courts (LexisNexis,
3 See the discussion in Harms Civil Procedure in the Superior Courts (LexisNexis,
looseleaf) at B6.67. Emphasis supplied.
4 Bertelsmann et al Erasmus Superior Court Practice (Juta, looseleaf) at B1-56C to
B1-56D (emphasis supplied) . See also Sheriff v Pr etoria North -East v Flink and
another [2005] 3 All SA 392 (T).
5 1926 AD 312 at 323.
application on that ground alone.6
15. The Supreme Court of Appeal 7 has more recently summarised the
principles as follows:
“[45] The principle of disclosure in ex parte proceedings is clear. In NDPP v
Basson this court said:
‘Where an order is sought ex parte it is well established that the utmost
good faith must be observed. All material facts must be disclosed which
might influence a court in coming to its decision, and the withholding or
suppression of material facts, by itself, entitles a court to set aside an
order, even if the non -disclosure or suppression was not wilful or mala
fide (Schlesinger v Schlesinger 1979 (4) SA 342 (W) at 348E–349B).’
[46] The duty of the utmost good faith, and in particular the duty of full and fair
disclosure, is imposed because orders granted without notice to affected
parties are a departure from a fundamental principle of the administration of
justice, namely, audi alteram partem. The law sometimes allows a departure
from this principle in the interests of justice but in those exceptional
circumstances the ex parte applicant assumes a heavy responsibility to
neutralise the prejudice the affected party suffers by his or her absence.
[47] The applicant must thus be scrupulously fair in presenting her own case.
She must also speak for the absent party by disclosing all relevant facts she
knows or reasonably expect s the absent party would want placed before the
court. The applicant must disclose and deal fairly with any defences of which
she is aware or which she may reasonably anticipate. She must disclose all
relevant adverse material that the absent respondent mi ght have put up in
opposition to the order. She must also exercise due care and make such
enquiries and conduct such investigations as are reasonable in the
circumstances before seeking ex parte relief. She may not refrain from
disclosing matter asserted b y the absent party because she believes it to be
disclosing matter asserted b y the absent party because she believes it to be
untrue. And even where the ex parte applicant has endeavoured in good faith
to discharge her duty, she will be held to have fallen short if the court finds that
6 See also Trakman NO v Livschitz 19 95 (1) SA 282 (A), at 288E-F.
7 Recycling and Economic Development Initiative of South Africa NPC v Minister of
Environmental Affairs 2019 (3) SA 251 (SCA) paras 45-52 (emphasis supplied).
matter she regarded as irrelevant was sufficie ntly material to require
disclosure. The test is objective.
…
[49] … She should not make disclosure in a way calculated to deflect the
Judge’s attention from the force and substance of the absent respondent’s
known or likely stance on the matters in issue. Generally this will require
disclosure in the body of the affidavit. The Judge, who hears an ex
parte application, particularly if urgent and voluminous, is rarely able to study
the papers at length and cannot be expected to trawl through annexures in
order to find material favouring the absent party.
[50] In regard to the court’s discretion as to whether to set aside an ex
parte order because of non -disclosure, Le Roux J said in Schlesinger v
Schlesinger:
‘. . . [U]nless there are very cogent practical reasons why an order
should not be rescinded, the Court will always fr own on an order
obtained ex parte on incomplete information and will set it aside even if
relief could be obtained on a subsequent application by the same
applicant.’…”
16. What did this spell for the present matter?
The non-disclosures in the ex parte application
17. The founding affidavit in the ex parte application contained allegations
which are substantially similar to those made in the applicant’s
answering affidavit in the BMW application. Whilst the applicant
disclosed some of the allegations contained the first respondent’s
founding affidavit in the BMW application, he did so selectively. He
dealt with his own arguments in the BMW application, but failed to
mention the existence of the contents, even in broad te rms, of the first
respondent’s replying affidavit in the BMW application. I agree d with the
respondents’ submission that such omission was material. The fact that
the first respondent delivered a replying affidavit in the BMW application
in which those allegations were denied was significant, and should have
been disclosed to the court hearing the ex parte application.
18. The respondents point to various facts and aspects which were omitted
from the applicant’s founding papers. I refer to only a few of them.
19. The first aspects related to the first respondent’s buying and selling of
vehicles. In the founding affidavit the applicant created the impression
that the first respondent was selling vehicles effectively to get rid of its
assets, and that if that state of affairs was allowed to continue, the first
respondent would be rendered an empty shell. This was incorrect.
Whilst the applicant alleged that a Maserati vehicle and Vespa scooter
had been sold, he did not inform the court that the first resp ondent had
in fact purchased a BMW 320i, which purchase the applicant had been
aware of.
20. The respondents had stated in the replying affidavit already, which was
delivered on 29 April 2025, that the Maserati and Vespa had been sold.
The impression created in the founding papers i n the ex parte
application was that the applicant had discovered this fact through his
own investigations prior to 29 April 2025 , and it was thus evidence of
the respondents’ alleged secretive disposal of assets. Had the applicant
disclosed that the respondents had stated under oath in the BMW
replying affidavit that those assets had been sold and that the first
respondent was entitled to do so , the court would not have considered
the granting of the ex parte order on that basis.
21. Further, the applicant knew that the first respondent did not own a BMW
320i at the time when he deposed to his answering affidavit in the BMW
application. He disclosed the fact that the BMW 320i was owned by the
first respondent in the founding affidavit in the ex parte application but
stated that the money he had advanced to the first respondent had
been used to purchase that vehicle. That was not correct , as the
applicant knew that the BMW 320i must have been purchased after the
institution of the BMW ap plication, and thus that the first respondent
had purchased a vehicle in addition to selling them. Th e disclosure of
this fact would have countered the narrative that the first respondent
was in the process of denuding itself of its assets, and could very well
have resulted in the court not granting the interim order.
22. This aspect tied in with the applicant’s allegations in the ex parte
application that, if notice of the application had been given prior to the
hearing, the first respondent would accelerate its disposal of assets .
There was no evidence to justify that conclusion , particularly given the
content of the BMW replying affidavit, and t here was thus no basis for
seeking an ex parte order.
23. The respondents explained that there was n othing untoward in the sale
and purchase of vehicles in a business which rented out vehicles for
short-term use, particularly over the festive season. Thus, the sale of
vehicles was in itself nothing unusual. The first respondent has often
sold vehicles t hat were expensive to maintain or that did not achieve
proper rental demand. In the off -season, the first respondent has
purchased other types of vehicles and has employed those to earn
income via chauffer, tour, and Uber Black services. The proceeds of
the sale of the Maserati were utilised to buy the BMW 320i, which was
cheaper to operate, and more suitable to the first respondent’s business
needs.
24. The second aspect that should have been dealt with in more detail by
the applicant related to the ownership of the vehicles which formed the
subject of the interim order . The applicant alleged that he was the
owner of those vehicles , and that he was on that basis entitled to the
interim order. In the replying affidavit in the BMW application the first
respondent denied this. The Vespa, for example, was never owned by
the first respondent. The Jeep , too, had always been owned by the
second respondent in his personal capacity. This should, in my view,
have been disclosed. Coupled with this was the fact that t he applicant
had, In January 2025 prior to the launch of the BMW application, sent
correspondence to the respondents in which he stated that he was
holding the BMW 650i as collateral for amounts owed to him. As one
cannot hold one's own pro perty as collateral, that would count against
the allegations of ownership contained in the ex parte application. The
applicant did not disclose his prior correspondence to the court in the ex
parte application.
25. The third aspect related to the applicant’s circumstances, and the
situation in which he would allegedly find himself should the interim
order not have been granted. In the founding affidavit in the ex parte
application, the applicant portrays himself as an economically
vulnerable, elderly man who had invested his life savings into a
business operated by his son, and in the course of which various motor
vehicles have, unbeknownst to the applicant, been sold to frustrate his
claims, which are effectively undisputed. He did not disclose that in the
first respondent’s replying affidavit it had been pointed out that the
applicant was a dollar millionaire , and thus a man of considerable
means.
26. The applicant argued that his claim was in effect quasi -vindicatory as
contemplated in Fey NO v Van der Westhuizen and others ,8 and that
the applicant therefore did not have to show an intention to dissipate on
the first respondent’s part. 9 He was also not required to prove a well -
grounded apprehension of irreparable harm , because harm was
presumed.10 It accordingly did not matter that the facts relied upon by
the respondents in their anticipation application had not been disclosed
8 2005 (2) SA 236 (C); and see Cellucity (Pty) Ltd v Phillipson-Garcia and others 2025 (3)
SA 170 (WCC) paras 34-36.
9 Fey NO supra at 249E.
SA 170 (WCC) paras 34-36.
9 Fey NO supra at 249E.
10 Fey NO supra at 250D.
to the court in the ex parte application – those facts were not material to
the relief sought.
27. Fey NO was, however, decided on very different facts: there the court
held that, where the trustee of an insolvent estate was seeking to
preserve assets in a trust which was the alter ego of the insolvent
pending a claim to recover them, it was not necessary for the applicant
trustee to show an intention on the part of the respondent to dissipate
assets to defeat the claims of creditors. The court held that the
circumstances before it, which fell into the category of a quasi -
vindicatory or quasi -proprietary claim, could be regarded as one of the
“exceptional cases ” envisaged in Knox D’Arcy Ltd and others v
Jamieson and others.11
28. In Cellucity, the applicant sought to preserve the first respondent’s
funds pending a quasi -vindicatory claim, after the latter had stolen
money from the applicant, her employer. The theft was not denied.
The court was therefore satisfied that that there was a sufficiently close
link between the subject -matter of the applicant’s claim and the funds
sought to be preserved, holding as follows: 12
“[48] Applying the above to the present case, the applicant has not only
established a clear or at l east prima facie case that the First Respondent has
stolen and/or misappropriated a substantial sum of money, but also that the
identified immovable properties owned by her were acquired out of this
money. The First Respondent has not denied the Applicant’ s specific
averment to this effect.
[49] The Applicant has therefore established a clear connection between the
misappropriated funds and the immovable properties. In essence, the
properties represent the stolen money which it is sought to recover. The cl aim
thus amounts to a quasi-vindicatory claim.
11 1996 (4) SA 348 (A) para 32.
12 See Cellucity supra paras 48-50 (emphasis supplied).
[50] Accordingly, to establish a right to an interdict, it is not necessary to go
further and show that the First Respondent is intending to dissipate these
properties.”
29. The present case is somewhat different. The problem I had with th e
applicant’s reasoning was that the applicant had known before the
institution of the ex parte application that his alleged ownership of the
vehicles was strenuously disputed. The parties were already embroiled
in litigation on the same or similar issues. T he applicant, should, in
seeking to establish his case for the purpose of an anti-dissipation order
on an ex parte basis, at least have disclosed the details of this dispute,
as they remained material to the court’s consideration of whether he
had a prima facie right.
30. The applicant argue d that the first respondent had been operating in
insolvent circumstances, and that that, coupled with its disposal of
vehicles, justified the grant of the interim relief. There is, however,
simply not sufficient evidence on record to sustain this proposition (even
on a prima facie basis and on the respondents’ version, as the applicant
would have it) when regard is had to the allegations in the replying
affidavit in the BMW application, and of which the applicant was aware.
31. I was of the view that, had the full picture been placed before th e court,
the interim order would not have been granted, at least not on an ex
parte basis, particularly in relation to the applicant’s alleged prima facie
right, the apprehension of harm, and the balance of convenience.13
Conclusion
32. It is apposite to revert to the underlying principles in ex parte
13 The first three requirements for the grant of interim interdictory relief: Gool v Minister of
Justice 1955 (2) SA 682 (C) at 688A-E.
applications:14
“Failure to make full disclosure of all known material facts (ie , facts that might
reasonably influence a court to come to a decision) may lead a court to refuse
the application or to set aside the rule nisi on that ground alone, quite apart
from considerations of wilfulness or mala fides. This approach should apply
equally to relief obtained on facts that are incorrect either because they have
been misstated or inaccurately set out in the application for the order or
because they have not been sufficiently investigated."
33. It goes without saying that the applicant was aware of th e parties’ prior
litigation when he sought the interim order in the present matter. He
knew that that the allegations upon which he relied in the ex parte
application were disputed by the respondents, but nevertheless did not
disclose those disputes, or the content of the respondents’ re plying
affidavit in the BMW application, to the court. There is, in my view, a
reasonable inference to be drawn that the applicant did so because he
wanted to obtain an advantage to which he was not entitled against the
respondents.
34. Whatever his motivati on, t he interim order should n ot have been
sought, and its continued existence not only prejudiced the
respondents, but was an affront to the court. In his replying affidavit in
the ex parte application the applicant did not explain how the omissions
in his founding papers came about.
35. While costs would in any event have followed the result, I was of the
view that the applicant’s attitude towards the litigation and the court,
and the blatant nature of the non -disclose, rendered his conduct
vexatious in the wider sense as contemplated in Johannesburg City
Council v Television and Electrical Distributors (Pty) Ltd and another:15 “
14 Harms Civil Procedure in the Superior Courts supra at B6.14.
15 1997 (1) SA 157 (A) at 177D.
… in appropriate circumstances the conduct of a litigant may be
adjudged ‘vexatious’ within the extended meaning that has been placed
upon this terms in a number of decisions, that is, when such conduct
has resulted in ‘unnecessary trouble and expense which the other side
ought not to bear …..” This warranted costs on an attorney and client
scale.
36. I accordingly granted the order referred to at the outset of these
reasons.
P. S. VAN ZYL
Acting Judge of the High Court
Appearances:
For the applicant: Mr E. Smit
Instructed by: Van Rensburg & Co. Attorneys
For the respondents: Mr D. van Reenen
Instructed by: Nirenstein Attorneys