IN THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL DIVISION, PIETERMARITZBURG
CASE NO: 2025-226686
In the matter between:
UNATHI FARMING PROJECT 02 (PTY) LTD Applicant
and
CRAIG NEVEN FARM (PTY) LTD Respondent
ORDER
The following order is made:
1. A rule nisi is issued calling upon the respondent to show cause, if any, on 7
January 2026 at 09h30, or as soon thereafter as the matter may be heard,
why an order should not be granted in the following terms:
1.1. That pending the final determination of the arbitration proceedings
contemplated by clause 20 of the Sale of Farming Enterprise Agreement read
with the Sale of Livestock Agreement:
1.1.1. The respondent is interdicted and restrained from concluding any
contract for the alienation, by sale, lease or otherwise, of the farming
enterprise, the immovable properties and livestock which form the subject
matter of the agreements, and from mortgaging, encumbering or transferring
the immovable properties, enterprise or livestock;
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1.1.2. The respondent shall permit the applicant to graze the cows purchased
by it on the property free of charge, as contemplated by the provisions of
clause 8 of the Sale of Livestock Agreement.
1.2. The respondent shall pay the costs of this application on the basis of
scale C.
2. The provisions of paragraph 1.1 hereof shall operate forthwith as an interim
order.
3. The respondent is directed to deliver any answering affidavit by 17 December
2025 and the applicant any replying affidavit by 24 December 2025.
4. The respondent is directed to pay the applicant’s costs incurred in respect of
26 November 2025 on the basis of scale C.
JUDGMENT
Delivered: 5 December 2025
MASIPA J
Introduction
[1] This is an urgent application in which the applicant seeks interim relief
interdicting the respondent from alienating, transferring, encumbering, leasing,
selling or in any manner dealing with the immovable properties and farming
enterprise which form the subject of a Sale of Farming Enterprise Agreement and a
Sale of Livestock Agreement concluded between the parties on 6 August 2025. The
relief is sought pending the final determination of arbitration proceedings
contemplated in clause 20 of the Sale of Farming Enterprise Agreement.
[2] The respondent opposes the application on two principal bases. First, it
contends that the matter is not urgent and that any urgency is self -created. Second,
it submits that the applicant has failed to satisfy the requirements for interim
interdictory relief. The respondent further contends that the sale agreement has
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lapsed due to the non-fulfilment of suspensive conditions and that no tacit terms can
be imported into the written contract.
[3] When the matter initially served on the urgent roll on 26 November 2025, it
was stood down for the exchange of heads of argument and was, by order of
Radebe ADJP, enrolled as an opposed urgent application on 4 December 2025 on
the issues of urgency and interim relief. The costs of 26 November 2025 were
reserved.
Factual Background
[4] On 6 August 2025 the parties concluded a Sale of Farming Enterprise
Agreement and a Sale of Livestock Agreement. In terms of these agreements the
applicant became the purchaser of the respondent’s farming enterprise, immovable
properties and livestock. Clause 20 of the Sale of Farming Enterprise Agreement
provides that any dispute arising between the parties in relation to their respective
rights and obligations shall be decided by arbitration. The agreement contained a
number of suspensive conditions, including a requirement that the applicant secure
finance of not less than R60 million within 60 days of signature and that the
respondent furnish due-diligence documentation within a stipulated period.
[5] On 22 October 2025 the respondent’s attorneys addressed a letter to the
applicant’s then attorneys alleging that the agreement had lapsed due to the alleged
non-fulfilment of the suspensive condition relating to finance and foreshadowed the
possibility of a further sale to another party. On 23 October 2025 the applicant’s
then attorneys replied, recording that their client was of the view that the agreement
remained alive, that a dispute had arisen regarding the alleged lapse, and that it
would be unethical for them to continue acting in the light of that dispute.
[6] After the change of attorneys, on 4 November 2025 the applicant’s new
attorneys addressed a detailed letter disputing the alleged lapse, contending that the
respondent’s failure to furnish due -diligence documents had prevented the applicant
respondent’s failure to furnish due -diligence documents had prevented the applicant
from securing finance, and identifying tacit terms which they contended were to be
read into the agreement. On 5 November 2025 the respondent’s attorneys replied,
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reiterating their client’s stance that the agreement had lapsed, relying in part on a
letter from Standard Bank, and expressly reserving their client’s rights. A further
email on the same day addressed the cattle and asserted that the applicant’s grazing
rights had terminated because the sale had lapsed.
[7] The applicant thereafter requested an undertaking that the respondent would
not alienate the property pending the determination of the dispute by arbitration. No
such undertaking was furnished. On 19 November 2025 the respondent for the first
time disclosed that it had concluded a sale of the properties with a third party on 22
October 2025. The respondent refused to disclose the identity of the purchaser or to
provide a copy of the sale agreement.
[8] It is common cause that Standard Bank has instituted foreclosure proceedings
against the respondent and that a settlement agreement was concluded in terms of
which the bank’s consent to the sale and the application of the sale proceeds form
part of a restructuring of the respondent’s indebtedness. The precise extent of the
respondent’s liabilities and equity position is in dispute.
Issues for Determination
[9] The following issue arises:
(a) Whether the matter is urgent.
(b) Whether the applicant has established the requirements for interim interdictory
relief pending arbitration.
Submissions
[10] In addition to the written affidavits and heads of argument, both parties
presented oral submissions. On the first occasion, 26 November 2025, the matter
came before me on the urgent roll. At the request of the applicant, and after hearing
both parties, the matter was adjourned for the filing of heads of argument and
argument was scheduled, in terms of a directive of Radebe ADJP, for 4 December
2025. Costs of 26 November 2025 were reserved.
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[11] Mr Hollis, who appeared for the applicant, submitted that two issues were to
be decided, namely urgency and the grant of interim relief. He emphasised that the
matter concerned “two sales of the same farming enterprise”, and that the applicant
was not merely a potential purchaser but the first purchaser of the property. He
referred to clause 20 of the Sale of Farming Enterprise Agreement, which requires
disputes between the parties to be referred to arbitration to be finalised, if possible,
within 60 b usiness days. He pointed to the suspensive condition that the purchaser
obtain finance from Land Bank or another recognised financial institution, and
submitted that while the respondent contended that the sale had lapsed for non -
fulfilment of that condition, the applicant’s case was that it had been unable to obtain
finance because the respondent had failed to provide the due -diligence
documentation within 30 days of signature as contemplated in the agreement.
[12] Mr Hollis submitted that clause 15 of the agreement contemplated extensions,
and that in the 4 November 2025 letter the applicant’s attorneys had effectively put
the respondent on terms to provide the due-diligence documentation. He argued that
in the initial letter of 22 October 2025 the respondent relied only on non -fulfilment of
the finance condition, but that in subsequent correspondence the issue of Standard
Bank’s consent was raised. He took the court through the chronology: the change of
attorneys between 24 October and 4 November 2025, the request for an undertaking
on 11 November 2025 that no sale would proceed until after arbitration, the
respondent’s refusal on 12 November 2025, and the applicant’s discovery on 19
November 2025 that a second sale had in fact been concluded on 22 October 2025.
He noted that on 20 November 2025 the respondent for the first time raised the
appointment of an arbitrator and, by agreeing to the proposed name, implicitly
appointment of an arbitrator and, by agreeing to the proposed name, implicitly
acknowledged the existence of a dispute to be resolved by arbitration. On 21
November 2025 the applicant provided the respondent with an unissued draft notice
of motion, in an attempt to avoid litigation. The papers were then issued and enrolled
for 26 November 2025.
[13] On urgency, Mr Hollis argued that the applicant had taken all reasonable
steps to avoid litigation and only approached court after learning that the farm had
already been sold and after its requests for an undertaking had been rebuffed. The
delay between 22 October and 19 November 2025 was attributable to the
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respondent’s failure to disclose the second sale and to the change of attorneys. He
pointed to the looming final payment date under the Standard Bank settlement
agreement and submitted that the settlement would fall away by 1 February 2026 if
the sale did not proceed, thereby reinforcing the need for urgent relief to preserve
the subject matter and enable an expedited arbitration. He argued that any urgency
could have been avoided had the respondent provided the requested undertaking.
[14] Mr Hollis also addressed the respondent’s complaint about the form of the
notice of motion. He submitted that in urgent applications the practice in this division
has been to use Form 2 (the “short form”) and that there was no prejudice to the
respondent, which had filed answering papers and heads. On the merits, he
submitted that the applicant’s prima facie right arises from its status as purchaser of
the farming enterprise and livestock as a going concern, and that this right is
underpinned by the tacit term articulated in the letter of 4 November 2025 concerning
the provision of due -diligence documentation and the consequent extension of the
period for securing finance. He emphasised that the respondent’s failure to provide
the due-diligence documentation, and its later reliance on valuations not previously
requested, demonstrated the existence of a real dispute fit for arbitration. As to
irreparable harm, he argued that there was no explanation why the respondent took
28 days to inform the applicant of the second sale, and that transfer to the third -party
purchaser would render the applicant’s right to specific performance illusory.
[15] On the balance of convenience, he stressed the agreed arbitral procedure,
the applicant’s earlier sale and the absence of any clear evidence that the
respondent would suffer uncompensable prejudice if an interim interdict were
granted. As to alternative remedies, he submitted that the respondent’s reliance on a
granted. As to alternative remedies, he submitted that the respondent’s reliance on a
damages claim was speculative in the absence of financial statements, particularly in
light of the foreclosure proceedings and the absence of proof of equity. The
applicant, he said, was in any event entitled to specific performance.
[16] Mr Pillay, for the respondent, submitted that the issue of urgency had to be
dealt with at the threshold. He took point with the use of Form 2 rather than Form 2A
and referred to the judgment of Steyn J in Rockwil Civils (Pty) Ltd and Others v Le
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Sueur NO1, where the learned judge, relying on Caledon Street Restaurants CC v
D’Aviera2, stressed that the provisions of Rule 6(5) are peremptory and that an
applicant is required to frame its notice of motion as near as may be to Form 2A. He
argued that, even in urgent applications, due regard must be had to the audi
principle and to the time periods prescribed by Rule 6(5), and that on the face of the
initial notice of motion no provision had been made for the filing of an answering
affidavit. He submitted that, on the reasoning in Caledon and Rockwil Civils , the
matter ought to be struck from the roll.
[17] Mr Pillay further relied on Square Root Logistics (Pty) Ltd v Commissioner for
SARS3, submitting that the certificate of urgency in this matter was defective and that
the applicant had not calculated the timelines with due regard to the respondent’s
rights. He argued that the applicant had been aware, by 23 October 2025, of the
respondent’s contention that the agreement had lapsed and of its intention to sell to
a third party yet did nothing until the end of November 2025. On his argument, the
urgency was self -created. He also drew attention to the fact that the sale sought to
be interdicted had already been concluded on 22 October 2025.
[18] In relation to the prima facie right, Mr Pillay submitted that tacit terms are
rarely imputed and only where necessary to give business efficacy to a contract. He
referred to the entire -agreement clause in clause 21.2 of the sale agreement and to
First National Bank of SA Ltd v Transvaal Rugby Union and Another 4 and Adhu
Investments CC and Others v Padayachee 5, for the proposition that where the
parties have recorded a comprehensive written agreement leaving little room for
supplementation, a court may not impute tacit terms and “make a contract for the
parties”. He submitted that there was no evidential foundation for the tacit term
contended for, and that the issue of Land Bank finance in any event presupposed a
contended for, and that the issue of Land Bank finance in any event presupposed a
further addendum to the agreement, which itself suggested that there was no
enforceable sale agreement capable of specific performance.
1 Rockwil Civils (Pty) Ltd and Others v Le Sueur NO (Rockwil Civils) [2020] ZAKZDHC 35.
2 Caledon Street Restaurants CC v D’Aviera (Caledon) [1998] JOL 1832 (SE).
3 Square Root Logistics (Pty) Ltd v Commissioner for SARS (Square Root) [2022] ZAKZDHC 11.
4 First National Bank of SA Ltd v Transvaal Rugby Union and Another 1997 (3) SA 851 (W) at 864J–
865A.
5 Adhu Investments CC and Others v Padayachee [2019] ZASCA 63.
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[19] On the remaining requirements for interim relief, Mr Pillay argued that a
damages claim constituted an adequate alternative remedy and that the evidence
suggested substantial equity in the property, particularly if the second sale
proceeded. He relied on Hix Networking Technologies v System Publishers (Pty) Ltd
and Another6 and on Cyclone Technologies (Pty) Ltd and Another v Eskom Holdings
Ltd 7 to submit that it is a common “rider” in this division, where an interim interdict is
granted, for the applicant to tender an undertaking to compensate the respondent for
proven loss if the interdict is later found to have been wrongly granted; no such
undertaking had been tendered here. In any event, he contended, the applicant had
not demonstrated that it was a trading entity with sufficient resources to meet such a
claim and might be no more than a shell company. He submitted that for a number of
reasons the defective notice, the delay, the alleged lack of a prima facie right, the
existence of alternative remedies and the absence of a tender the matter should
either be struck from the roll for lack of urgency or dismissed, and that punitive costs
on the attorney -and-client scale (including the costs of 26 November 2025) should
be awarded.
[20] In reply, Mr Hollis reiterated that the respondent had never explained why it
took from 22 October to 19 November 2025 to inform the applicant that the property
had in fact been sold, and contended that had that been disclosed promptly, the
applicant would have approached the court within days. He submitted that the setting
down of the matter for 26 November 2025 was intended to secure a timetable for the
exchange of affidavits and was not an attempt to have the matter heard as an
opposed motion on that date; any infelicities in the notice of motion did not detract
from the genuine urgency.
[21] On the prima facie right, he maintained that there was on the applicant’s
[21] On the prima facie right, he maintained that there was on the applicant’s
version a breach of the obligation to provide due -diligence documentation, that this
was not foreseen by the parties and that it was in those circumstances that a tacit
term could be imputed an issue properly for the arbitrator. He stressed the
respondent’s failure to honour the arbitration clause, the payment by the applicant of
6 Hix Networking Technologies v System Publishers (Pty) Ltd and Another (Hix Networking)1997 (1)
SA 391 (A).
7 Cyclone Technologies (Pty) Ltd and Another v Eskom Holdings Ltd [2009] ZAKZDHC 79.
9
more than R1,4 million towards the transaction, and the need for preservatory relief
to avoid rendering the arbitral process nugatory. He disputed that a tender to pay
damages was a precondition to interim relief and emphasised that the applicant
sought an interdict essentially in the form of the draft order to preserve the status
quo pending the determination of the dispute.
Urgency
[22] The respondent’s central submission is that the applicant was advised as
early as 22 October 2025 that the respondent regarded the agreement as lapsed
and intended selling to a third party. It is contended that any urgency is self -created
and that the applicant delayed for several weeks before approaching court. This
argument fails to distinguish between two materially different facts: a threatened
future sale and the existence of a concluded sale. While the respondent indeed
foreshadowed the possibility of another sale on 22 October 2025, it concealed the
fact that a binding sale had already been concluded on that very day.
[23] The applicant became aware of the completed third -party sale only on 19
November 2025. Until that date the dispute concerned whether the suspensive
conditions had been met and whether the agreement had lapsed matters which both
parties accepted were to be determined by arbitration. During the period 11 to 18
November 2025 the applicant made sustained attempts to avoid litigation by
securing an undertaking that the respondent would preserve the status quo pending
arbitration. Those efforts were rebuffed . The urgent application was launched within
three days of the applicant learning of the concluded sale. That explains the timing
and demonstrates reasonable promptness.
[24] The test is not whether a specific act of transfer was scheduled for 26
November 2025, but whether the applicant would be afforded substantial redress in
due course if it were required to follow ordinary time periods. The risk of imminent
due course if it were required to follow ordinary time periods. The risk of imminent
transfer to an undisclosed third party is self -evidently destructive of the subject
matter of the arbitration.
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[25] The respondent relied strongly on Square Root8, where the Court cautioned
that “a certificate of urgency cuts through the normal waiting period for applications
and must be thoughtfully and appropriately calculated”, and further held that
“urgency must not be resorted to merely because it is convenient; Rule 6(12) is not a
mechanism for parties to jump the queue ”. While that caution is fully endorsed, the
present matter does not fall within the mischief addressed in Square Root Logistics.
Here, urgency did not arise from tactical convenience or dilatory conduct but from
the belated disclosure of a concluded sale after repeated refusals to give any
preservation undertaking.
[26] The balancing authority is East Rock Trading 7 (Pty) Ltd v Eagle Valley
Granite (Pty) Ltd and Others 9, where it was held that urgency exists only where “ the
applicant cannot obtain substantial redress in due course ” and that “ self-created
urgency is not a basis for invoking Rule 6(12) ”. Once the existence of the concluded
third-party sale became known, the threat to the subject matter of arbitration was
immediate, concrete and irreversible. This matter therefore falls squarely within the
legitimate protective scope of Rule 6(12) contemplated in East Rock Trading , and
not the abuse cautioned against in Square Root Logistics . I am satisfied that the
urgency was not self-created and that substantial redress cannot be obtained in due
course. The matter was properly enrolled as urgent.
[27] The respondent further sought punitive costs on the basis of an alleged abuse
of Rule 6(12). Punitive costs are reserved for clear cases of bad faith, recklessness
or deliberate manipulation of process. The applicant attempted to resolve the dispute
through arbitration, sought undertakings, and acted within three days of learning of
the completed sale. It cannot be said that the urgent procedure was abused. On the
contrary, the respondent’s concealment of the concluded third -party sale materially
contrary, the respondent’s concealment of the concluded third -party sale materially
generated the emergency.
[28] The respondent further took technical issue with the applicant’s use of Form 2
instead of Form 2A in the notice of motion, relying on Rockwil Civils10 and Caledon11.
8 Fn 3 above.
9 East Rock Trading 7 (Pty) Ltd v Eagle Valley Granite (Pty) Ltd and Others [2011] ZAGPJHC 196.
10 Fn 1 above.
11
It was argued that even in urgent applications Rule 6(5) remains peremptory and that
the matter ought to be struck from the roll for non -compliance therewith. In my view,
that objection was overtaken by events in this matter. When the matter was called on
26 November 2025, all affidavits had already been filed. The respondent did not
indicate that it was prejudiced by the form used, did not seek to supplement its
answering affidavit, and did not reserve any rights to do so. The parties thereafter
proceeded to file full heads of argument and the matter was argued
comprehensively. As correctly submitted by Mr Hollis, no prejudice whatsoever was
suffered by the respondent as a result of the use of Form 2 instead of Form 2A. The
audi alteram partem principle was fully observed. The objection based on form is
therefore without merit.
Interim interdictory relief
[29] The requisites for an interim interdict are a prima facie right, though open to
some doubt; a reasonable apprehension of irreparable harm; a balance of
convenience in favour of the applicant; and the absence of any other satisfactory
remedy. Where the facts disclose disputes and denials, the court applies the
approach formulated in Webster v Mitchell 12, namely whether, on those facts which
are not seriously disputed , together with the inherent probabilities, the applicant has
shown a prima facie right. Greenberg J explained that the Court must ask “ whether,
on the affidavits as a whole, the applicant should on the facts obtain final relief at
trial”.
Prima Facie Right
[30] The applicant relies on its contractual rights arising from the Sale of Farming
Enterprise Agreement and the arbitration clause contained therein. It does not, at
this stage, seek final enforcement of the sale. What it seeks is preservation of the
subject matter pending arbitration. The respondent contends that the agreement has
lapsed because the applicant failed to secure finance within 60 days and because
lapsed because the applicant failed to secure finance within 60 days and because
Standard Bank did not furnish timeous consent. It further relies on the entire -
agreement clause to exclude any tacit terms.
11 Fn 2 above.
12 Webster v Mitchell 1948 (1) SA 1186 (WLD).
12
[31] The applicant’s case is that the respondent failed to furnish due -diligence
documentation timeously, thereby frustrating the applicant’s ability to secure finance.
It further contends that tacit extensions and waivers arose from the parties’ conduct
after 6 October 2025. These disputes go directly to the merits of whether the
agreement lapsed. They cannot be finally determined on motion. They are precisely
the disputes the parties agreed to refer to arbitration. The applicant has at least a
prima facie right to insist that the arbitral process not be rendered nugatory by the
alienation of the property beforehand. That suffices at the interim stage.
Reasonable Apprehension of Irreparable Harm
[32] The respondent disclosed only on 19 November 2025 that it had already sold
the property to a third party some twenty -eight days earlier. There is currently no
legal impediment preventing the registration of transfer in favour of that third party. If
transfer occurs, the arbitration proceedings contemplated by clause 20 will be
deprived of their primary subject matter. An award for transfer in favour of the
applicant would be incapable of implementation.
[33] The respondent submits that damages would be an adequate remedy
because there is substantial equity in the property. That assertion is not supported
by any independent financial evidence. The applicant, on the other hand, points to
the foreclosure proceedings instituted by Standard Bank and the absence of any
disclosed financial statements. Immovable property and a going farming enterprise
constitute unique property. Monetary compensation is not an equivalent substitute.
The apprehension of irreparable harm is real and well-founded.
Balance of Convenience
[34] The applicant’s contract predates the clandestine sale to the third party. If the
interdict is refused and the applicant ultimately succeeds in arbitration, its victory will
be hollow. The respondent faces financial pressure arising from Standard Bank’s
be hollow. The respondent faces financial pressure arising from Standard Bank’s
foreclosure, but that is a risk inherent in its own commercial affairs. The prejudice
suffered by the respondent is financial and remediable in damages should the
interdict later prove unwarranted.
13
[35] The respondent also concealed the existence of the third-party sale for almost
a month and repeatedly refused undertakings. That conduct weighs heavily against it
in the equitable assessment of convenience. In Hix Networking13 the Supreme Court
of Appeal held that “ a respondent’s refusal to give an undertaking may itself tilt the
balance of convenience in favour of an applicant ”. That principle finds direct
application here. The balance of convenience accordingly favours the granting of
interim relief.
No Other Satisfactory Remedy
[36] The respondent contends that a damages claim constitutes a satisfactory
alternative remedy. This submission is unsustainable on these facts. The
respondent’s financial position is opaque. There are existing foreclosure
proceedings. No audited financial statements have been produced. A damages claim
is therefore speculative and potentially unenforceable.
[37] In UDC Bank Ltd v Seacat Leasing and Finance Co (Pty) Ltd and Another 14,
the Court held that damages are not adequate where “ the harm is not easily
quantifiable, or the financial position of the respondent renders such damages
illusory”. Those considerations apply directly in this matter. The arbitration process
itself does not afford the applicant any coercive mechanism to preserve the status
quo. Only this court can do so. There is accordingly no satisfactory alternative
remedy.
[38] The applicant has established urgency, a prima facie right, a reasonable
apprehension of irreparable harm, a balance of convenience in its favour, and the
absence of any other satisfactory remedy. The purpose of the relief sought is purely
preservatory. It does not finally determine the parties’ rights under the sale
agreement. Those rights remain to be determined by the agreed arbitration process.
Order
13 Fn 6 above.
14 UDC Bank Ltd v Seacat Leasing and Finance Co (Pty) Ltd and Another 1979 (4) SA 682 (T) at 696.
14
[39] The following order is granted:
1. A rule nisi is issued calling upon the respondent to show cause, if any, on 7
January 2026 at 09h30, or as soon thereafter as the matter may be heard,
why an order should not be granted in the following terms:
1.1. That pending the final determination of the arbitration proceedings
contemplated by clause 20 of the Sale of Farming Enterprise Agreement read
with the Sale of Livestock Agreement:
1.1.1. The respondent is interdicted and restrained from concluding any
contract for the alienation, by sale, lease or otherwise, of the farming
enterprise, the immovable properties and livestock which form the subject
matter of the agreements, and from mortgaging, encumbering or transferring
the immovable properties, enterprise or livestock;
1.1.2. The respondent shall permit the applicant to graze the cows purchased
by it on the property free of charge, as contemplated by the provisions of
clause 8 of the Sale of Livestock Agreement.
1.2. The respondent shall pay the costs of this application on the basis of
scale C.
2. The provisions of paragraph 1.1 hereof shall operate forthwith as an interim
order.
3. The respondent is directed to deliver any answering affidavit by 17 December
2025 and the applicant any replying affidavit by 24 December 2025.
4. The respondent is directed to pay the applicant’s costs incurred in respect of
26 November 2025 on the basis of scale C.
__________________
MASIPA J
APPEARANCE DETAILS:
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For the applicant: Mr Hollis SC
Instructed by: Strauss Daly, Umhlanga
For the respondent Mr I Pillay
Instructed by: Hay & Scott Attorneys, Pietermaritzburg
Matter heard on: 4 December 2025
Judgment delivered on: 5 December 2025.