IN THE HIGH COURT OF SOUTH AFRICA
FREE STATE DIVISION, BLOEMFONTEIN
In the matter between:
SEQHOBONG CONSTRUCTION CC
(reg no: 2002/091165/23)
and
MANGAUNG METROPOLITAN MUNICIPALITY
THE MUNICIPAL MANAGER: MANGAUNG
METROPOLITAN MUNICIPALITY
Not Reportable
Case no: 2193/2025
APPLICANT
FIRST RESPONDENT
SECOND RESPONDENT
Neutral citation: Seqhobong Construction CC v Mangaung Metropolitan Municipality
and Another(2193/2025 ) [2025] ZAFSHC 371 (25 November 2025)
Coram: DE LA REY AJ
Heard: 11 September 2025
Delivered: This judgment was handed 9own electronically by circulating to the parties
legal representatives and release to SAFLII. The date and time for the hand-down is
deemed to be 12h00 on 25 November 2025.
Summary: Application for payment - whilst action still pending - defence of /is pendens
established - abuse of process.
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ORDER
1 Condonation is granted for the late filing of respondents answering affidavit and the
applicant's replying affidavit.
2 Condonation is granted and the applicant's additional affidavit is accepted.
3 The applicant's application is dismissed with costs payable on an attorney and client
scale.
De la Rey AJ
Introduction
JUDGMENT
[1] The applicant approaches court by way of a mandamus application for an order in
the following terms:
'1.1 an order to compel the first and second respondents to pay invoices 166; 168; 171; 176;
191; 192; 193; 195 and 198 totalling the amount of R3 362 536-75 within seven days from the date
of the order directly into the applicant's Nedbank current account held under account number: . .. '
[2] In the alternative, the applicant sought the following relief:
'3.2.1 an order to compel the first and second respondents to process within thirty (30) calendar
days from the date of order invoices 166; 168; 171; 176; 191; 192; 193; 195 and 198.
3.2.2 An order to compel the first and second respondents to pay invoices 166; 168; 171; 176;
191; 192; 193; 195 and 198 totalling the amount of R3 362 536-75 within seven days from the
lapsing of the thirty (30) calendar days as per prayer 1.2.1 supra, directly into the applicant's
Nedbank bank account held under account number .. . '
The applicant furthermore sought cost order on an attorney and own client scale.
[3] The applicant's application for payment of the abovementioned amount is founded
on s 65(2)(e) of the Municipal Finance Management Act 56 of 2003. Although framed as
an application to compel, it is evident from the application that the applicant simply seeks
payment of the outstanding invoices as mentioned hereinbefore.
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[4J In opposing the application, the respondents, besides answering to the specific
averments, took various points in limine arguing that the mandamus relief sought was
inappropriate on the facts, stating that the applicant has failed to meet the requirements of
an interdict and stating that there are material disputes of facts and alleging prescription
of the applicant's claims. For reasons that appear hereafter, it is only necessary to deal
with a single aspect in the respondents' opposition to the application and that is the
allegation that the payment sought on the relevant invoices by the applicant has
prescribed.
[5] In this regard, the applicant, in its replying affidavit, in answer to the respondents'
averment of prescription stated as follows:
'7 .2 Prescription is not applicable in this event. The applicant has instituted action proceedings in
this Honourable Court during 2022 thus the applicant has not allowed for the claims to have
prescribed , and I thus reiterate that the purpose of this application is to compel the respondents to
adhere to their statutory duty to duly process invoices and affect payment thereon within a period
of thirty (30) days should there be no disputes.'
[6] The applicant's averment relating to the action already instituted in 2022 did not
appear in its founding affidavit and the applicant sought and was granted leave to file an
additional affidavit dealing specifically with the points in limine raised by respondents and
more specifically to the response relating to the allegation of prescription. Attached to the
additional affidavit is an amended particulars of claim filed under case number 5216/2022
in terms of which the applicant, as plaintiff in the action, also sought payment in the amount
of R? 338 360.96 from the first respondent, as defendant in the action. Part of this amount,
as is evident in the annexures to the amended particulars of claim, relates to tax invoices
as is evident in the annexures to the amended particulars of claim, relates to tax invoices
166; 168; 171; 176; 191; 192; 193; 195 and 198. It is thus clear that the applicant has,
prior to launching the application, instituted an action for the payment of the balances due
on the exact same invoices that forms the subject matter of this application.
[7] It must be mentioned that, on the face of it, it appears as though the particulars of
claim in the action was amended to eventually include the invoices that form the subject
matter of the current application and it might not have formed part of the initial action.
Based on the aforesaid, counsel for the respondents, in his heads of argument and in
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court, took the point that there is a current action pending between the same parties based
on the same factual averments i.e., payment of the above mentioned disputed invoices and
that the application, irrespective of all the other points taken, clearly cannot succeed based
on the defence of /is pendens.
[8] Counsel for the applicant was queried on why the application should not be
regarded as an abuse of process and, more specifically, why the existence of a current
action between the same parties relating to the same invoices was not mentioned at all by
the applicant in its founding papers. Counsel for the applicant conceded that it should have
been stated in the founding affidavit but denied that the application amounted to an abuse
of process. The relief in seeking payment was abandoned during argument and the
applicant simply sought an order in terms of which the respondents had to process the
necessary invoices within a period of 30 days.
[9] In Maughan .v Zuma and Others, 1 it was held that:
'Our courts have not attempted to have an all-encompassing definition of what is meant by an
abuse of process. Over the years there have been a number of instances in which the courts have
deemed it appropriate to intervene and arrest an abuse of process which include those instances
where proceedings have been instituted for an ulterior and/or improper purpose and for an
improper and/or ulterior motive.'
[10] Given that there is an unresolved action pending between the parties relating to
payment of, inter alia, the same invoices the respondents, as defendants in the action,
would in any event have already considered payment of the invoices and for whatever
reason have decided that the payment thereof was not due and payable, hence the
pending unresolved action.
[11) An amended order as sought by the applicant simply makes no sense . It is quite
clear that the applicant in this matter, irrespective of the pending action between the
clear that the applicant in this matter, irrespective of the pending action between the
parties, decided, to approach this Court under a different case number on application to
try and hasten and force payment of the apparent disputed invoices.
1 Maughan v Zuma and Others [2023] ZAKZPHC 59; [2023) 3 All SA 484 (KZP); 2023 (5) SA 467 (KZP);
2023 (2) SACR 435 (KZP) para 70.
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{12] It is unthinkable that a party, knowing that it is involved in an unresolved action
would simply disregard the action, fail to tell the court about the pending action in its
founding affidavit and then effectively seek payment of a disputed debt and thereby
sidestepping the pending action procedure.
(13) Counsel for the applicant was adamant that the process followed was not an abuse
of process in that they are in terms of the Act entitled to the relief sought. Whilst this
submission simply reiterates the administrative actions to be that respondents had to
perform in terms of the Act, the issue in this matter is not whether the applicant has got
the right to seek the relief as per the notice of motion, the problem lies in the fact that the
applicant, having been forced to divulge to court the pending action only after being forced
to deal with the possible prescription, failed in its founding affidavit to be frank and honest
with the court relating to the true current scenario relating to the disputes between the
parties.
[14] The issue of abuse of process thus lies with the failure by the applicant to play open
cards with the Court. Had the respondents not pleaded prescription in its opposing affidavit
which the applicant of necessity had to deal with in reply, this Court would have been none
the wiser about the existing action pending between the parties. The conclusion is
inescapable that that the application was brought for an ulterior and/or improper purpose
and constitutes an abuse of process.
[15] In Nestle (South Africa) (Pfy) Ltd v Mars lnc,2 Nugent AJA stated:
'The defence of /is alibi pendens shares features in common with the defence of res judicata
because they have a common underlying principle which is that there should be finality in litigation.
Once a suit has been commenced before a tribunal that is competent to adjudicate upon it the suit
must generally be brought to its conclusion before that tribunal and should not be replicated (/is
alibi pendens). By the same token the suit will not be permitted to be revived once it has been
brought to its proper conclusion (res judicata). The same suit, between the same parties , should
be brought only once and finally.'
2 Nestle (South Africa) Pty Ltd v Mars Incorporated (2001] ZASCA 76; [2001] 4 All SA 315 (A); 2001 (4) SA
542 (SCA); 2001 BIP 130 (SCA) para 16.
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[ 16] The existence of the pending action between the same parties, relating to payment
of the same invoices clearly establishes the defence of /is pendens and the application
stands to be dismissed. It should be mentioned that even if the additional affidavit by
applicant is disregarded, on applicants own case, that is that the claims have not
prescribed because of the action instituted in 2022, the defence of /is pendens is
established. The doctrine of /is pendens requires that the pending action be finalised in
the forum in which it is pending. The argument that there is no /is pendens because
applicant in the application also seeks an order that respondents 'process' the invoices is
contrived. Prior to abandoning it during argument, applicant clearly sought payment of the
relevant invoices both in terms of its main relief as well as its alternative relief sought.
Furthermore, and, in any event, it is hard to imagine how the applicant could ever have
argued that it does not have an effective alternative remedy whilst presenting the existing
pending action as answer to a defence of prescription.
[17] The defence of /is pendens is established and the application cannot succeed.
Costs
[18] Considering the applicant's abuse of process this court will grant a punitive cost
order in favour of the respondents as is evident in the order.
Order
[19] In the result, the following order is granted:
1 Condonation is granted for the late filing of respondents answering affidavit and the
applicant's replying affidavit.
2 Condonation is granted and the applicant's additional affidavit is accepted.
3 The applicant's application is dismissed with costs, payable on an attorney and client
scale.
HE e a Rey
ACTING JUDGE OF THE HIGH COURT
..
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Appearances
For the applicant: J Ferreira
Instructed by: Willie J Botha Incorporated, Bloemfontein
For the respondents: L B J Moeng
Instructed by: Matlho Attorneys, Bloemfontein.