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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
LIMPOPO DIVISION , POLOKWANE
(1)
(2)
(3)
REPORT ABLE: YES/NO
OF INTEREST TO THE JUDGES: YES/NO
REVISED.
2026/01/07 DATE ......................... SIGNATURE. ... .
In the matter between:
THABAZIMBI LOCAL MUNICIPALITY
and
HOME-GROWN BUSINESS INTEGRATIONS (PTY) LTD
ESKOM HOLDINGS SOC LIMITED
JUDGMENT
CASE NO: 2025-213496
APPLICANT
FIRST RESPONDENT
SECOND RESPONDENT

BURNETT. AJ
INTRODUCTION
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[1 ] T his is an urgent application to hold the First Respondent and Mr. Thaisi Shale (a
director of the First Respondent) in contempt of the order handed down by his
Honourable Acting Judge Magane on 11 December 2025. The Applicant seeks the
incarceration of Mr. Shale for a period of 12 (twelve) months.
[2] T he order of 11 December 2025 states inter alia that: -
[2.1) The First Respondent is directed to deliver to the Applicant, within two court
days of the granting of this order, the following information and date in
accessible excel or CVS format: -
[2.1.1)
[2.1.2)
A complete Prepaid Electricity Customer "Dump File" containing
all prepaid customer details on the First Respondent's system
for the municipality, including customer names, addresses,
meter numbers, applicable tariff codes, and classifications of
each customer including indigent, commercial, domestic or
larger-power users, as applicable.
A transactional history report covering at least one year of all
prep-paid electricity vending transactions conducted for the
municipality, including transaction dates, meter or customer
details, amounts and vending tokens or references for each
transaction.

[2.1.3)
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An updated third-party vendor list reflecting all third-party
vendors currently or recently vending electricity on the
Municipality system, including for each vendor their physical
address, contact person and details, and the current
commission rate or fee structure applicable to that vendor.
[2.2) That the First Respondent is directed to pay over to the Applicant, within two
court days of the granting of this order, all monies constituting prepaid
electricity revenue collected on behalf of the Applicant which the First
Respondent has not yet remitted to the Municipality's designated bank
account.
[2.3) The First Respondent is directed to submit and hand over to the Applicant all
invoices, statements, and reports required under the Service Level
Agreement and the Addendums thereto, including but not limited to all
invoices for its services and any periodic reports not yet furnished, such
submission to be completed within two court days of the granting of this order.
[2.4) The First Respondent is directed to furnish the Applicant with all contracts
concluded with third parties for the vending of prepaid electricity or any
related services on behalf of the municipality, within two court days of the
granting of this order.
[3] The First Respondent opposed the application. The Second Respondent did not
oppose the application; however, no relief is sought against it. Counsel for the
Applicant and the First Respondent filed heads of argument and appeared on the

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day of hearing to advance oral arguments. It must be noted that both counsels
argued their cases diligently.
URGENCY
[4] I n urgent applications, the first issue to consider is whether the matter is urgent.
The test for urgency was articulated in East Rock Trading (PTY) Ltd and Another
v Eagle Valley Granite and Another 's (11/33767) [2011] ZAGPJHC 196 at
paragraph 6 where Justice Notshe AJ held that "The import thereof is that the
procedure set out in Rule 6(12) is not for taking. An applicant must set forth
explicitly the circumstances which he avers render the matter urgent. More
importantly, the applicant must state the reasons why he claims that he cannot be
afforded substantial redress at a hearing in due course." It was submitted by the
Applicant that contempt of court applications are by their very nature urgent.
[5] I t was held in Protea Holdings Ltd v Wright and Others 1978 (3) SA 865 (W) 868
A - H that: -
"The element of urgency would be satisfied if in fact it is shown that the respondents
were continuing to disregard the order, if this be so, the applicant is entitled, as a
matter of urgency, to attempt to get the respondents to desist by the penalty referred
to being imposed."
[6] I n Victoria Park Ratepayers Associates v Greyvenouw CC and Others [2004] 3
All SA 623 (SE) (11 April 2003) the court found that: -
"That contempt of court has obvious implications for the effectiveness and legitimacy
of the legal system and the judicial arm of government. There is thus a public

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interest element in each and every case in which it is alleged that a party has wilfully
and in bad faith ignored or otherwise failed to comply with a court order. This added
element provides to every such case an element of urgency .... It is not only the
object of punishing a respondent to compel him or her to obey an order that renders
contempt proceedings urgent, the public interest in the administration of justice and
the vindication of the constitution also renders the ongoing failure of refusal to obey
an order a matter of urgency. This in my view, is the starting point, all matters in
which an ongoing contempt must be dealt with as expeditiously as the
circumstances and the dictates of fairness follow.
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[7] I t was held in Rhweba Butterworth (Pty) Ltd and Others v Lubabalo Brown
Mntonga & Others (5368/2021) [2022] ZAECMHC 9 (3 May 2022) that: -
"Contempt of court proceedings are, as a general rule, urgent and the degree of
urgency will always depend on the facts of each case.
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[8] The failure to abide by a court order is a v iolation of section 165 (5) of the
Constitution of the Republic of South Africa states that: - ''An order or decision
issued by a court binds all persons to whom and organs of state to which it applies.
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I agree that contempt applications are by their very nature urgent because it
concerns the rule of law. A society that is allowed to disregard court orders is a
society in disarray. Contemp t of court applications are especially urgent, as in this
case, when the public p urse is being affected. An urgent application such as the
one at hand, does not just affect the right of the Applicant, but thousands of
residents within its area of jurisdiction. It is in the public interest that the matter be
dealt with as a matter of urgency. The allegations that are levelled against the First

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Respondent are severe. It is alleged that the First Respondent has misappropriated
public funds and continues to do so. The First Respondent was, inter alia, ordered
to pay certain public funds over to the Applicant, however, has not abided by the
court order. For as long as the court order is not adhered to, confidence in the rule
of law diminishes. The public will not regain this confidence through substantial
redress in due course. A failure to deal with an attack on the rule of law urgently, will
set a precedent of leniency in these kinds of matters.
NON-JOIN DER
[9] T he First Respondent is a juristic person. The Applicant seeks to hold the First
Respondent and a director thereof, namely Mr. Thaisi Shale, in contempt. It is not
in dispute that Mr. Shale is a director of the First Respondent, however it must be
noted that the Applicant did not attach a Company Search to his Founding Affidavit,
and it is thus unknown whether First Respondent has any other directors. This
ought to have been done.
[1 O] The First Respondent argues that Mr. Shale cannot be held in contempt of court
because he is not a party to these proceedings. In the matter of Stonehi/1 Property
Fund Proprietary Limited v Shongwe and Another (20421/2024) [2024]
ZAWCHC 311 (16 October 2024) at paragraph 20, 27 and 28 it was held that: -
"It should be observed that it is important to remember that when a court pronounces
a judgment it should do so without prejudice to the rights and interests of persons
who were not parties before it. In that context, it is peremptory that the issue of

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prejudice must be considered in the determination of necessary non-joinder .... the
non-joinder of a necessary party is a defect in a pleading that can simply be
remedied by a joinder. Accordingly, a deficiency in pleadings had nothing to do with
the merits but is related to procedure. Put differently, a non-joinder cannot defeat
the merits, as it may be a reversible error dependant of course, upon circumstances.
To hold otherwise would be to extend the scope of and effect of a non-joinder. In
the circumstances, it seems entirely reasonable to suppose that, in an application, if
the court finds there is a non-joinder of a necessary party, it is competent for the
court to strike the matter from the roll. In any event, nothing prevents this Court from
striking the matter from the roll due to non-joinder. This is even the case as the
matter is not an action but an application. In this matter, it is however significant to
note that the respondents are not applying for joining of the parties, but they are
rather objecting to the non-joinder of parties."
[1 1] The non-joinder of a party to legal proceedings is a matter of procedure which must
be adjudicated as a point in limine before the merits of the matter are entertained.
[12] To ascertain whether Mr. Shale ought to have been joined as a party to the
proceedings, one must consider whether he has a direct and substantial interest in
the matter.
[13] The Appellant Division held in Amalgamated Engineering Union v Minister of
Labour 1949 (3) SA 637 A at page 659 that: -
"Indeed is seems clear to me that the Court has consistently refrained from dealing
with issues in which a third party may have a direct and substantial interest without

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either having that party joined to the suit or if the circumstances of the case admit of
such a course, taking other adequate steps to ensure that its judgment will not
prejudicially affect that party's interests."
[14] In the matter of Stonehi/1 Property Fund Proprietary Limited v Shongwe and
Another (20421!2024) [2024] ZAWCHC 311 (16 October 2024) at paragraph 20, 27
and 28 it was held that: -
"It should be observed that it is important to remember that when a court pronounces
a judgment it should do so without prejudice to the rights and interests of persons
who were not parties before it. In that context, it is peremptory that the issue of
prejudice must be considered in the determination of necessary non-joinder .... the
non-joinder of a necessary party is a defect in a pleading that can simply be
remedied by a joinder. Accordingly, a deficiency in pleadings had nothing to do with
the merits but is related to procedure. Put differently, a non-joinder cannot defeat
the merits, as it may be a reversible error dependant of course, upon circumstances.
To hold otherwise would be to extend the scope of and effect of a non-joinder. In
the circumstances, it seems entirely reasonable to suppose that, in an application, if
the court finds there is a non-joinder of a necessary party, it is competent for the
court to strike the matter from the roll. In any event, nothing prevents this Court from
striking the matter from the roll due to non-joinder. This is even the case as the
matter is not an action but an application. In this matter, it is however significant to
note that the respondents are not applying for joining of the parties, but they are
rather objecting to the non-joinder of parties."

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[15] In Herbstein & Van Winsen "The Civil Practice of the High Courts of South
Africa" 5th edition (2009) at page 208, the learned author stated that following: -
"Apart from considerations of convenience, however there are circumstances in
which it is essential to join a party because of the interest that party has in the
matter. When such an interest becomes apparent the court has no discretion and
will not allow the matter to proceed without joinder or the giving of judicial notice of
the proceedings to that party. The reason for this is that it is a principle of our law
that interests parties should be afforded an opportunity to be heard in matters that
they have a direct and substantial interest .... A third party who has, or may have, a
direct and substantial interest in any order the court might make in proceedings or if
such an order cannot be sustained or carried into effect without prejudicing that
party, is a necessary party and should be joined in the proceedings .... A direct and
substantial interest has been held to be an interest in the right which is the subject
matter of litigation and not merely a financial interest in such litigation. It is a legal
interest in the subject matter of litigation, excluding an indirect commercial interest
only. The possibility of such an interest is sufficient, and it is not necessary for the
court to determine that in fact it exists. For a joinder to be essential, the parties to be
joined must have a direct and substantial interest not only in the subject matter of
litigation, but also in the outcome of it. It is important to remember that a
constitutionally protected right is legally enforceable and gives rise to a legal interest
which may require a joinder. Thus, whenever an order which may infringe upon the
constitutional rights of any person, those persons should be joined or given judicial
notice of the proceedings."

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[16] Having regard to the above authorities, Mr Shale does have a direct and substantial
interest in t he matter. The Applicant is seeking incarceration. The Applicant
acknowledges that a juristic person cannot be incarcerated and thus wants Mr.
Shale to be incarcerated instead. The fact that the Applicant wants Mr. Shale to be
incarcerated, means that he has a direct and substantial interest in the matter and
accordingly must be joined as a party to the proceedings. It is trite that a court
cannot grant an order against someone that is not a party to the proceedings.
[17] Counsel for the applicant is correct in his submission that a director of a company
can be held liable for the company's non-compliance with the court order; however,
that director that the Applicant seeks to hold liable, must be cited as a party to the
proceedings. The Applicant also needs to lay a basis in his founding papers as to
the reasons why this specific director must be held liable. A failure to do this would
cause substantial prejudice to Mr. Shale, especially having regard to the fact that the
Applicant seeks his incarceration. If there is contempt, the directors of the First
Respondent must bear the consequences, however that does not entitle to Applicant
to disregard the rules of procedure.
[18] In the matter of Turner and Another v Ntintelo and Another (A248/22) [2023]
ZAWCHC 51 (8 March 2023) at paragraph 63 in relaying on Skhosana and Others
v Roos Va Roos se Oord and Others 2000 (4) SA 561 (LCC) at paragraph 19 it
was held that: -
"The difference between striking a matter off the roll and dismissal is that in the case
of dismissal, the matter is disposed of and can no longer be set down on the roll
again. If the applicant wishes to proceed with the matter, he will have to start the

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matter de novo. While on the other hand, striking the matter off the roll has nothing
to do with the merits of the case. It is not aimed at terminating the proceedings but
merely suspends the hearing pending an application for reinstatement."
[19] Having regard to the principle embodied in the Turner and Skhosana cases, the
matter is accordingly struck from the role for the directors of the First Respondent to
be joined as parties to the proceedings. Once the directors have been joined as
parties to the proceedings and the matter is re-enrolled for hearing, the merits of the
matter can be adjudicated.
ORDER
[20] I accordingly make the following order: -
[20.1] That the rules of the above Honourable Court pertaining to forms, service and
time periods be condoned and/or dispensed with, and the matter be heard as
one of urgency in terms of Rule 6 (12).
[20.2] The application is struck from roll due to the non-joinder of the directors of the
First Respondent.
[20.3] The Applicant to pay the wasted costs of the First Respondent on a party and
party scale B.
ACTING JUDGE OF THE HIGH COURT ,
POLOKWANE ; LIMPOPO DIVISION

APPEARANCES
FOR THE APPLICANT:­
INSTRUCTED BY:-
FOR THE :
INSTRUCTED BY:-
DATE OF HEARING:­
DATE OF JUDGMENT:-
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ADV. MAUNATLALA
WAKABA AND PARTNERS
ADV. GEYER
SWANEPOELATTORNEYS
30 DECEMBER 2025
7 JANUARY 2026