SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in
compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
(NORTHERN CAPE DIVISION, KIMBERLEY)
Not Reportable
Case no: 2025-203676
In the matter between:
THE MEC FOR THE DEPARTMENT OF TRANSPORT,
SAFETY AND LIAISON Applicant
and
OCEAN ECHO PROPERTIES (PTY) LTD Respondent
Neutral citation: MEC for the Department of Transport, Safety and Liaison v
Ocean Echo Properties (Pty) Ltd (Case no 203676/2025) 12 December
2025.
Coram: MAMOSEBO J.
Heard: 07 November 2025.
Delivered: 12 December 2025.
Summary: Urgent application – Applicant seek s immediate access to
Respondent’s office building to retrieve documents for completion of audited financial
statements – Section 40(1)(c) of the Public Finance Management Act 1 of 1999 –
Respondent claims abuse of court process as matter is lis pendens – Relief sought in
casu is narrower and not dispositive of the pending application – Immediate access
for retrieval of documents granted.
___________________________________________________________________
ORDER
In the result, the following order is made:
1. The application is urgent, and the ordinary forms and service provided for in
the Uniform Rules of Court are dispensed with.
2. The respondent’s late filing of the answering affidavit is hereby condoned.
3. The respondent, Ocean Echo Properties (Pty) Ltd, is directed to provide the
applicant, the MEC for the Department of Transport, Safety and Liaison, with
immediate and full access to the building/offices at the corner of Sydney and
Lennox Streets, Kimberley, for the recovery of documents.
4. The respondent is ordered to pay the costs of this application on the scale as
between party and party.
JUDGMENT
Mamosebo J
[1] This is an opposed application brought on an urgent basis . The applicant
seeks an order directing the respondent to provide him with full access to its
offices situated at the corner of Sydney and Lennox Streets , Kimberley,
Northern Cape , in order to retrieve essential documents needed for the
completion of mandatory annual financial statements . The applicant also
sought further ancillary relief.
[2] The applicant is the Member of the Executive Council for the Department of
Transport, Safety and Liaison ( “the MEC”), and the respondent is Ocean
Echo Propertie s (Pty) Ltd, a limited liability company registered in
accordance with the laws of the country.
3
[3] Paragraph 27.2 of the respondent’s answering affidavit expressly denies
being a company but a close corporation , further intimating that the
application is a nullity as the applicant has cited a non -existent party. It
further suggested that the applicant should withdraw the application and
tender co sts on a punitive scale. There is an indication in the answering
affidavit that this aspect would be argued at the hearing of the matter. In his
reply, the MEC is silent in this regard and did not invoke Rule 28 of the
Uniform Rules of Court or seek leave to file a supplementary affidavit , to
correct the citation of the parties . Notwithstanding, the respondent did not
raise this issue at the hearing. What is inexplicable and common cause is
that the parties are cited in the same manner in Case number 1155/2025
which was postponed to 29 January 2027 to the opposed roll. I afforded the
parties an opportunity to file supplementary heads dealing with this aspect.
The respondent , relying on Friends of the Sick Association v Commercial
Properties (Pty) Ltd and Another 1; Devonia Shipping Ltd v MV Luis (Yeoman
Shipping Co Ltd Intervening )2; and Van Heerden v Du Plessis 3, persisted
with the argument of the incorrect citation being a fatal error and hence a
nullity since “Ocean Echo Properties (Pty) Limited” lacks legal personality .
The a pplicant, relying on both local and foreign jurisdiction cases4,
maintained that this Court, in the absence of any prejudice, should entertain
the matter as the citation was a mere misdescription which can still be
amended.
[4] Ocean Echo Properties (Pty) Ltd and Ocean Echo Properties 333 CC with
registration number 2007/245380/23 ha ve the same registered business
address; 1[...] T[...] Street, Kimberley. The application was served on it. The
respondent contented itself with the application and argued the matter fully
despite recognising the error in its description. The applicant is not obliged to
despite recognising the error in its description. The applicant is not obliged to
cross the evidentiary hurdle in respect of the lease agreement at this stage
1 1996 (4) SA 154 (D & CLD).
2 1994 (2) SA 363 (C) at 369J – 370A.
3 1969 (3) SA 298 (O) at 304A – G.
4 Consolidated Transport Rigging and Logistics (Pty) Ltd v Concord Cranes (Pty) Ltd (34646/20)
[2023] ZAGPPHC 1984 (12 December 2023); Kaiso Nguwo v Maria Peno HC 1220/16; Mapondera v
Fred Rebecca Goldmine Holdings Limited SC 565/19; Chambi and Others v Registrar General
Cause 21 of 2020; Essence Lading CC v Infiniti Insurance Ltd and Another 2024 (2) SA 407 ( GJ);
[2023] 3 All SA 410 (GJ ); [2023] JOL 59420 (GJ) ; Four Tower Investments (Pty) Ltd v Andre’s
Motors 2005 (3) SA 39 (NPD).
4
as the merits will be argued in January 2027. The respondent did not take
the preliminary point for this Court to consider as dispositive of the matter. In
my view, an incorrect citation is a curable misdescription and not a fatal flaw ,
particularly where t he question of prejudice to the respondent does not
arise.5
Background and submissions
[5] On 20 June 2025 , the applicant had brought an application under Case
number 1155/2025 seeking the following relief:
‘1. That the locking of the building situated at Corner Phakamile Mabija and
Lennox Streets, Kimberley (also known as the “Ocean Echo Building”) by
the Respondent, be declared unlawful.
2. That a Mandament van Spolie be granted against the Respondent as a
consequence of the unlawful dispossession/depravation of the property
situated at Corner Phakamile Mabija and Lennox Streets, Kimberley (also
known as the “Ocean Echo Building”) that was taken from the Applicant
and that the Applicant’s peaceful and undisturbed possession of the
property that was unlawfully taken from them, be restored.
3. Directing and ordering the Respondent to forthwith return and restore
peaceful and undisturbed possession of the property situated at Corner
Phakamile Mabija and Lennox Streets, Kimberley (also known as the
“Ocean Echo Building”).
4. That the Respondent to pay the costs of this application on Scale C,
regardless of whether the application is opposed or not.’ (Sic.)
The spoliation application was postponed to the opposed roll for 29 January
2027. The applicant maintain s that the application in casu is addressing a
limited aspect which is not dispositive of the pending matter.
[6] A brief factual background is necessary. The applicant and the respondent
had concluded a lease agreement in terms of which the applicant’s
5 See Foxlake Investments (Pty) Limited trading as Foxway Developments (Pty) Limited v Ultimate
Raft Foundation Design Solutions CC trading as Ultimate Raft Design and another [2016] JOL
Raft Foundation Design Solutions CC trading as Ultimate Raft Design and another [2016] JOL
35631 (SCA) para 14.
5
Department was housed at the respondent’s building. During the period of
the lease, the building posed structural and ventilation issues which the
applicant raised with the respondent. The Department of Employment and
Labour issued two prohibition notices in respect of the same building on 26
November 2024, barring further occupation until the building is declared safe.
The applicant’s Department left its office equipment, documents and furniture
in its reaction to the prohibition notices. According to the applicant, the long-
term lease between the parties had lapsed, and they had been occupying the
building on a month -to-month basis. The respondent, however, disputes the
alleged lapse of the long -term lease and avers that it was automatically
renewed in accordance with the relevant clauses of the agreement. There is
a separate court order for the applicant to pay the rent directly to Nedbank
Limited.
[7] Whilst awaiting the spoliation application to be heard in 2027, the applicant
brought this application to be granted immediate access to the building
where the Department’s employees were housed before vacating the
building in response to the prohibition notices. The access sought is said to
be for the retrieval of the necessary documents that will enable the
Department to comply with its mandatory requirements of filing audited
annual financial statements to the Northern Cape Provincial Treasury , from
whom a letter was received on 24 October 2025 under the signature of Ms
GL Bosvark, Provincial Accountant General, Northern Cape Provincial
Treasury. The abovementioned letter addresses serious concern s on the
non-submission of the Department’s annual financial statements as required
by s 40(1)(c)(ii) of the Public Finance Management Act6 (“the PFMA”).
[8] According to the letter from Treasury, the year ended on 31 March 2025.
Paragraph 3 of the letter reads:
‘The non -submission has a direct and adverse impact on the ability of Provincial
‘The non -submission has a direct and adverse impact on the ability of Provincial
Treasury to fulfil its statutory obligations, particularly, the preparation and
submission of the consolidated provincial annual financial statement for auditing
6 1 of 1999.
6
purposes and ensure timely tabling before the Provincial Legislature as required by
section 19 of the PFMA. The obligation is contingent upon timely submission of
audit financial statements from all departments and public entities.’
[9] In its answering affidavit, filed out of time as per the filing schedule set by the
applicant, the deponent, Ms Glynis Millicent Aysen, a member of the
respondent, first sought condonation for the late filing of the answering
affidavit. She refutes the urgency of the application and claims that the
perceived urgency is self -created. Further that the matter is lis pendens and
the applicant is abusing the court process. She urged the Court to strike the
matter from the roll with costs due to lack of urgency.
Analysis
[10] I deal first with urgency . The applicant must persuade the court, in terms of
Rule 6(12), of the urgency of this application. The following conclusion is
drawn by Van Loggenberg in Erasmus7 pertaining to urgent applications:
‘In other words, urgency (except where a statute provides for inherent urgency) is
determined not by the nature of the claim brought, but by the circumstances in
which the applicant seeks its adjudication. … [I]t is peremptory that an applicant set
out explicitly the circumstances on which he relies to render the matter urgent and
the reason why he claims that he cannot be afforded substantial relief at a hearing
in due course.’
[11] Clearly, the prohibition notice s had to be complied with. In vacating the
premises, the applicant left essentially everything behind. This Court is not
concerning itself with substantive issues to be ventilated by the parties on
29 January 2027. However, I am of the view that the respondent’s opposition
ignores the real issue on the face of the letter from the Provincial Treasury to
enable the Province to fulfil its mandatory obligations. This is justifiable and
falls squarely within the purview of Rule 6(12) as there will not be substantial
falls squarely within the purview of Rule 6(12) as there will not be substantial
redress in due course. Having regard to the substantial value of the rights
being infringed upon by the mere withholding of the essential documents, I
7 Erasmus: Superior Court Practice, 2ed, Volume 2 at RS 25, 2024, D1 Rule 6- 52.
7
am of a firm view that it was necessary for the matter to be heard as one of
urgency.
[12] Moving onto the respondent’s application for condonation of the late filing of
its answering affidavit, in Republikeinse Publikasies (Edms) Bpk v Afrikaanse
Pers Publikasies (Edms) Bpk8, this salutary explanation appears in the
headnote:
‘The effect of Rule of Court 6(12), analysed. Because Rule of Court 6(12) envisages
that a respondent, in the case of urgent application on notice to the respondent, is
entitled to act if he wishes to oppose the application in terms of the rules
which the applicant has made applicable in the case of an extraordinary
adjudication, the respondent is entitled to rely upon the process of extraordinary
adjudication in the event of the applicant, at a late stage, deciding not to proceed
with the application and he is entitled on notice of motion and by affidavit to place
before Court the papers, if any, and the facts of the incompleted extraordinary
process of adjudication and to apply for an order of costs.’ (Own emphasis added.)
[13] The respondent ought to have accepted the applicant’s timelines and filed as
proposed. However, the answering affidavit was filed after the applicant had
already filed heads of argument, and two days out of time . Despite the late
filing of the answering affidavit, I find, in my discretion, that two days is not
inordinate and there will be no prejudice in accepting the answering affidavit.
The late filing of the answering affidavit is accordingly condoned.
[14] I now deal with the merits of this application. As already state d above, the
fact that the Department left essentially everything behind is understandable
in light of the prohibition notice s. It also bears repeating that, at this stage,
this Court is not concerning itself with the determination of the dispute
concerning the respective rights of the parties . However, the importance of
the Department’s compliance with its statutory obligation s in terms of the
the Department’s compliance with its statutory obligation s in terms of the
PFMA cannot be overstated. Section 40 of the PFMA provides:
8 1972 (1) SA 773 (A).
8
‘Accounting officers’ reporting responsibilities
(1) The accounting officer for a department, trading entity or constitutional
institution –
. . .
(c) must submit those financial statements within two months after the
end of the financial year to –
. . .
(ii) the relevant treasury to enable that treasury to prepare
consolidated financial statements in terms of section 8 or 19.’
[15] The respondent’s withholding of the sought documents stands between the
Department and its compliance obligations in terms of the abovementioned
provisions of the PFMA. The respondent’s opposition of this application
ignores, and even seems to downplay , the Department’s compliance
obligations notwithstanding the letter from the Provincial Treasury seeking
the Department’s compliance. Having regard to the need for the Department
to comply with the PFMA, and the wider implications of the withholding of the
said documents on the provincial treasury’s responsibilities, I am of a firm
view that the applicant must be provided with immediate access to the
respondent’s building to fetch the necessary documents. Needless to say
that any harm on the respondent’s rights which aw ait determination in the
pending spoliation application may be ameliorated upon finalisation of that
application. Importantly, t he same cannot be said for the applicant and the
broader functioning of the system within which the Department operates.
[16] In relation to costs, t he enunciation by Smallberger JA in Intercontinental
Exports (Pty) Ltd v Fowles9 bears repeating:
‘The basic rule is that, statutory limitations apart, all costs awards are in the
discretion of the court ( Kruger Bros & Wasserman v Ruskin 1918 AD 63 at 69, a
decision which has consistently been followed). The court ’s discretion is a wide,
unfettered and equitable one. It is a facet of the court ’s control over the proceedings
before it. It is to be exercised judicially with due regard to all relevant considerations.
before it. It is to be exercised judicially with due regard to all relevant considerations.
These would include the nature of the litigation being conducted before it and the
conduct of the parties (or their representatives).’
9 1999 (2) SA 1045 (SCA) para 25.
9
[17] The respondent’s opposition to the application is regrettable and
unnecessary. The application for access to the building just to retrieve
documents for purposes of the audited financial statements has nothing to do
with the pending substantive issues which will still be argued before Court.
The applicant was obliged to approach court for relief. There is no reason
why costs should not follow the result.
[18] In the result, the following order is made:
1. The application is urgent, and the ordinary forms and service
provided for in the Uniform Rules of Court are dispensed with.
2. The respondent’s late filing of the answering affidavit is hereby
condoned.
3. The respondent, Ocean Echo Properties (Pty) Ltd, is directed to
provide the applicant, the MEC for the Department of Transport,
Safety and Liaison, with immediate and full access to the
building/offices at the corner of Sydney and Lennox Streets ,
Kimberley, for the recovery of documents.
4. The respondent is ordered to pay the costs of this application on the
scale as between party and party.
_____________________
MC MAMOSEBO
JUDGE OF THE HIGH COURT
NORTHERN CAPE DIVISION
Appearances
For the Applicant: Adv. M Rasivhetshele
On instructions of: Office of the State Attorney
Kimberley
For the Respondent: Adv. J Harmse
On instructions of: Makhuni Inc Attorneys