IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
(1) REPORTABLE: %/ NO
(2) OF INTEREST TO OTHER JUDGES:~/ NO
(3) REVISED
DATE : 5 December 2025
In tne application of:-
THE SOUTH AFRICAN BOARD FOR SHERIFFS
AND
JOHANNES TSEKE MPHALELE
FIRST NATIONAL BANK A DIVISION OF FIRST
RAND BANK LTD
NAMEDI TSHEPO MPHAL£L£
CASE NO: 211867/2025
HEARD ON: 27 November 2025
JUDGMENT: 5 December 2025
APPLICANT
FIRST RESPONDENT
SECOND RESPONDENT
T~ IRD Rt'.SPONDt'.NT
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JUDGMENT
Striidom J
INTRODUCTION
1. This is the anticipated return date of a rule nisi, which operates as an interim
order, and which was granted on an urgent ex parte basis on 11 November
2025 ("the order") in terms of which the first respondent is prohibited from
dealing with his trust account and a curator bonis is appointed to take control
of and administer the trust account.
2. The first respondent is moreover ordered to surrender to the curator bonis "all
receipt books and accounting documents relating to the Pretoria North East
Sheriffs' Office and the applicant ("the Board") is ordered to make
arrangements to ensure that the office of the Sheriff, Pretoria North East will
continue to function lawfully and in terms of the Sheriffs' Act 90 of 1986, wh ich
arrangements may include the appointment of an acting Sheriff in accordance
with the provisions of the Sheriffs' Act."
RELEVANT FACTS
3. The relevant facts are as follows:
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3.1 The first respondent has been the Sheriff for Lephalala since 1
December 2012 and the Sheriff for Pretoria North East since 1 March
2023.
3.2 The first respondent is in possession of two fidelity fund certificates
('FFC"), reflecting the Lephalale and Pretoria North East offices
respectively.
3.3 The first respondent was appointed on 15 September 2025 by the
Minister of Justice and Constitutional Development ("the Minister")
as the Sheriff of Pretoria North East "with immediate effect".
3.4 The Minister appointed the third respondent on 28 September 2025
as the Sheriff for Pretoria North East from 1 November 2025.
3.5 During the Board's "vetting process" it came to its knowledge that the
first respondent was allegedly convicted during 1987 of robbery and
received corporal punishment and a suspended prison sentence,
which is a disqualifying factor to be issued with a fidelity fund
certificate in terms of section 33(1 )(h).
3.6 On 13 October 2025, the first respondent applied to the Board in
terms of section 33(2) for the issuing of a fidelity fund certificate which
provision reads as follows:
"If in respect of any Sheriff who is subject to any disability
mentioned in subsection (1), the Board is satisfied that having
regara to me relevant consideration s, the issue of a fidelity
fund certificate to him is justified in the interest of fairness
towards him , the Board may , on such conditions as the Board
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may with the concurrence of the Minister determine, issue a
fidelity fund certificate to him when he applies therefore."
(Emphasis added.)
3.7 The Board has to date refused to consider the first respondent's
application.
3.8 On 14 October 2025, the first respondent applied on an urgent basis
("the urgent application") for the suspension of the Ministers
retraction of the first respondents' appointment and the appointment
of the third respondent as Sheriff for Pretoria North East pending the
review of the decisions.
3.9 In the Minister's answering affidavit in the urgent application, she
stated that she had never retracted the first respondents'
appointment.1
3. 1 O The urgent application was argued on 30 October 2025 before
Kumalo J, who reserved judgment, which is still pending.
3.11 On 30 October 2025 and after argument before Kumalo J, the
Board's attorneys addressed correspondence to the first
respondent's attorneys demanding that the first respondent conduct
a full and complete hand over of all court processes, documents and
assets currently in his possession for the Pretoria North East
1 Paragraph 21.6 of the answering affidavit [pOl-98)
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jurisdiction to the Court Manager ... by close of business tomorrow,
31 October 2025, being the last day of his lawful acting appointment.
3.12 The first respondent refused to comply with the Board's demand.
3.13 Pending the judgment of Kumalo J, the applicant launched an urgent
ex parte application and obtained an interim order on 11 November
2025, which is the subject of this matter.
3.14 On 20 November 2025, the first respondent's criminal record was
expunged in terms of section 271 B of the Criminal Procedure Act 51
of 1977, which implies that the first respondent is no longer
disqualified in terms of section 33(1)(h) to be issued with a fidelity
fund certificate ("FFC").
LIS PENDENS
4. It was submitted by the first respondent that:2 "The Board is moreover
attempting to pre-empt the findings of Kumalo J in the urgent application and is
thus acting contemptuously. The Board in this regard deals with the following
disputed issues, which Kumalo J is called upon to deal with in the pending
judgment:
21.5.1 my appointment as Sheriff for Pretoria North East "fell away";
I failed to meet the "fit and proper" criterion for appointment
as Sheriff; and I am pre-emptively disqualified by statute from
being issued with an FCC "(paragraph 7);
2 Para 21.5 pO 1-97 Answ ering Affidavit
21.5.2
21.5.3
21.5.4
21.5.5
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I have not been appointed as the Sheriff for Pretoria North
East and I cannot perform the functions of Sheriff because I
do not hold the requisite FCC for Pretoria North East
(paragraph 1 O);
I have "evidently ... been dishonest" (paragraph 46);
My criminal conviction and my failure to disclose it to the
Board "disqualifies [me] immediately" from issuing the office
of Sheriff and being issued with a FFC (paragraphs 47, 48,
and 55); and
My "conditional" appointment as Sheriff for Pretoria North
East lapsed (paragraph 58)."
5. It was argued by the first respondent that the following requisites for a defence
of /is pendens have been satisfied:
5.1 pending litigation between the same parties or their privies;
5.2 based on the same cause of action;
5.3 in respect of the same subject matter, which does not mean that the
form of relief claimed must be identical.
6. The applicant contended that the application before Kumalo J concerns
decisions taken or not taken by the Minister and has nothing to do with (a) the
operation of a trust account, (b) the legality of performing the functions of a
snerlrr wltnout an FFC, and (c) the protection of tru:st monie:s under 8ection 24.
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7. It was further submitted by the applicant that even if the first respondent
succeeds in the pending application before Khumalo J, he will still not have an
FFC for Pretoria North East, nor will it cure his historical misrepresentations.
The Board does not seek to pre-empt the application before Kumalo J.
8. It is trite that if an action is already pending between parties and the plaintiff
brings another action against the same defendant on the same cause of action
and in respect of the same subject-matter, it is open to the defendant to take
the objection of tis pendens. Objection is usually taken by way of a plea in
abatement.
9. The onus rests upon the party raising the defence to prove the requisites. Once
the requisites have been established, a factual presumption arises that the
second proceeding is prima facie vexations. The party who instituted the
second proceeding then bears the onus to convince the Court that the new
proceeding is not vexatious. He must convince the Court that despite the fact
that all the required elements are present, the balance of convenience and
equality are in favour of allowing the case to proceed.
10. On a conspectus of all the facts before me , I conclude that the grounds on
which the applicant seeks the relief in this matter are the same grounds and or
disputed issues that Kumalo J is called upon to deal with in the pending
judgment.
11. Although the relief claimed in thi::; matter i3 not identic;al ae the relief claimed
before Kumalo J, it is not a requirement for the defence of tis pendens.
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12. I am also of the view that this matter is based on the same cause of action and
in respect of the same subject matter that was argued before Kumalo J.
13. The proceedings before Kumalo J involved determination of issues that is
necessary for the determination of the present case and is substantially
determinative of its outcome.
14. In the circumstances, the following order is made:
1. The rule nisi granted on 11 November 2025 is discharged.
2. The application is dismissed with costs, which costs are to be taxed with
scale B.
Appearances:
For the applicant:
Instructed by:
For the first respondent:
Instructed by:
Judge of the Hight Court, South Africa
Gauteng D ivision, Pretoria
Brenton Joseph SC
Kuvashkir Naidoo
Herold G ie Attorneys
HF Oosthuizen SC
Krynauw Inc Attorneys