IN THE HIGH COURT OF SOUTH AFRICA
WESTERN CAPE DIVISION, CAPE TOWN
CASE No: 12000/2024
In the matter between:
JANINE ARMER Applicant
and
PIETER ROY NAUDÉ Respondent
Heard: 3 February 2026
Judgment: 4 February 2026
Summary: Application for leave to appeal: Contempt of Court; joinder of necessity
and effect on order of court; rescission of order granted by agreement; variation of an
interim order of court.
ORDER
1. The application for leave to appeal is dismissed with costs, with scale B applying.
2. The order of this court handed down on 1 December 2025 in the above matter is varied
to include:
2.1. A new paragraph 18 which reads as follows: “The application for rescission of the order
of this court under the above case number on 31 May 2024 is dismissed.”
2.2. A new paragraph 19 which reads as follows: “Save to the extent of the aspects in
respect of which the relief sought therein was incorporated in the above paragraphs of this order,
the counter-application is dismissed.”
JUDGMENT
Handed down by email to the parties on 4 February 2026
Judgment handed down electronically by circulation to the parties’ legal representatives by email and
released to SAFLII.
KANTOR, AJ:
1. Judgment was handed down and an Order was granted in the above matter on 1
December 2025 (“the Judgment” and “the Order”) . The respondent delivered an
application for leave to appeal by email on 22 December 2025. The application for
leave to appeal was heard on 3 February 2026.
2. The definitions employed in the Judgment and the Order will be employed in this
judgment.
3. The grounds of substance in the application for leave to appeal are quoted verbatim
and considered briefly below.
4. Before doing so, there is another aspect requiring attention which occurred to me in
preparing for the hearing of this application. It was recorded in paragraph 58 of the
Judgment that “The application for rescission of the 31 May Order therefore fails .” but the
Order did not include that the application for resciss ion was dismissed. Similarly, the
counter application was not successful but the Order did not specifically record that it
was dismissed, save to the extent of the aspects in respect of which the relief sought
therein was incorporated in the Order . Paragraph 12 and paragraph 1 .5 of the
application for leave to appeal reveal that the respondent was also of the view that the
counter-application was dismissed, the first line of the former reading “The Court erred in
dismissing the counter application …” These were due to an error/omission on my part,
occasioned by oversight on my part. I raised these two aspects with the parties at the
hearing of the application for leave to appeal. They both agreed that the Order should
be varied in terms of Rule 42(1)(b) to include paragraphs to the above effect. In my
view this is an appropriate situation for my error/oversight to be corrected in terms of
Rule 42(1)(b) by the variation of the Order to include:
4.1. A new paragraph 1 8 which reads as follows: “The application for rescission of the
order of this court under the above case number on 31 May 2024 is dismissed”
4.2. A new paragraph 19 which reads as follows: “Save to the extent of the aspects in
respect of which the relief sought therein was incorporated in the above paragraphs of this
order, the counter-application is dismissed.”
5. It appeared from paragraph 1 of the application for leave to appeal that there was an
error in the reference to paragraphs of the Order against which leave to appeal would
be sought. For example, paragraph 17 was not included, which was the costs order. Mr
Dunn, who appeared for the respond ent, confirmed that there was an error and after
considering the paragraphs of the Order confirmed that leave to appeal was sought
only against paragraphs 1 to 9 and 17 to 19 thereof (i.e. including the new paragraphs
18 and 19 referred to above).
6. The grounds of the application for leave to appeal will now be considered.
“A. MISDIRECTION AS TO THE NATURE OF THE ORDERS - INTERIM IN FORM BUT FINAL IN EFFECT
3. The Court erred by granting orders that are characterised as interim but are, by reason of their nature
and effect, final orders that cause immediate and irreversible prejudice to the Respondent/Counter-
Applicant, in particular:
3.1. Paragraph 1 (Declaration of contempt) is a final declaratory order that brands the
Respondent/Counter-Applicant as a contemnor of court. This declaration cannot be "undone"
even if the appeal succeeds, as the stigma and consequences of the contempt finding are
immediate and permanent;
3.2. Paragraph 2 (Leave to set down for sanction) creates a procedural "contempt trap" whereby the
simple fact of non -compliance with any aspect of the order (including impossible compliance
with payment obligations) automatically entitles the Applicant to bring the
Respondent/Counter-Applicant before the Court for sanction. The order expressly states that
"by 'not comply' is not meant to 'be in contempt'" - meaning mere non -compliance, regardless
of reason or ability, triggers the right to seek imprisonment;
3.3. Paragraph 3 (Sole authority to Applicant) immediately disposses ses the Respondent/Counter -
Applicant of control over businesses he built over approximately 30 years. Although framed as
Applicant of control over businesses he built over approximately 30 years. Although framed as
interim relief "pending the final determination of the action" , the practical effect is immediate
and complete transfer of control which cannot practically be reversed;
3.4. Paragraph 6 (Payment of R686,572.54 within 7 days) is in substance a final money judgment that
was granted without any inquiry into the Respondent/Counter -Applicant's ability to pay, and
which requires immediate exec ution. The consequences of non -payment are severe
(imprisonment) yet no opportunity was afforded to demonstrate financial impossibility;
3.5. Paragraph 8 (Hand over keys and interdict from properties) immediately dispossesses the
Respondent/Counter-Applicant from properties where he resides and has resided for many
years, effectively operating as an eviction order without following PIE procedures;
3.6. Paragraph 11 (Dismissal of counter application) is a final order refusing the
Respondent/Counter-Applicant's substantive relief; and
3.7. Paragraph 17 (Costs on Scale C) is a final punitive costs order that must be paid regardless of
the outcome of the main action.”
7. Paragraph 3.1: It is correct that the contempt finding in paragraph 1 of the Order
is final. It was not intended to be, and could not be, anything besides final, as appears
from the Judgment. It related to the non-compliance with the 31 May Order dealt with in
the Judgment. This does not ground a basis for leave to appeal to be granted.
8. Paragraph 3.2: Paragraph 2 of the Order is plain: sanction for contempt of the
31 May Order was only to be considered if the Order was not complied with. The right
to seek a sanction was already there. The Order afforded the respondent a reprieve in
this regard, provided that he complied with the terms thereof. This was not a contempt
trap. Contempt had already been found and sanction could have been determined, but
instead of doing that paragraph 3 of the Order deferred that aspect, which was in the
respondent’s favour. This does not ground a basis for leave to appeal to be granted.
9. Paragraph 3.3: Control of a company can be reversed. This does not ground a
basis for leave to appeal to be granted.
10. Paragraph 3.4: The Judgment (for example, paragraphs 80, 85 and 111) dealt in
detail with the facts which established that the respondent had diverted between
R2 589 707.68 as at the end of June 2025, increasing to R3 165 409.95 in November
2025, of funds of certain entities whose bo nd liabilities had not been paid. These were
funds which had been directed in the Order to be paid into specific bank accounts of
specific entities which was ignored by the respondent. The respondent did not disclose
what had happened to these diverted fun ds and where they were held. Paragraph 6 of
the Order reads: “ The respondent is directed, within 7 (seven) days from the date of this order, to
cause the following amounts in respect of the following properties to be paid into the bank accounts as
indicated …” No question of ability to pay arose and the order was for the respondent to
“cause the following amounts ” to be paid in the aforesaid context. Th e consequence of
non-payment is contended by the respondent to be imprisonment. This is not the case
(1) in the absence of contempt of court being established and even then it would be for
the court hearing that matter to determine that aspect in the exerc ise of its discretion or
(2) the respondent not causing such payment to be made and then the sanction is not
for the failure to make that payment but for having been in contempt of the 31 May
Order. This does not ground a basis for leave to appeal to be granted.
11. Paragraph 3.5: The question of the applicability of PIE was never an issue in the
matter. This does not ground a basis for leave to appeal to be granted.
12. Paragraph 3.6: The rescission of judgment sought in the counter application was
not granted. That is final and leave to appeal can be sought in respect thereof. The
balance of the counter application was for relief pending the determination of the
action. It is not final relief. This does not ground a basis for leave to appeal to be
granted.
13. Paragraph 3.7: Costs awarded on scale C is not a punitive costs order. Scale A,
B or C in terms Rule 67A relate to the complexity and importance of the matter
(Mashavha v Enaex Africa (Pty) Ltd 2025 (1) SA 466 (GJ) at paragraph 19 ). The
contempt relief granted was final as was the failure of the application for rescission of
judgment, both decided in favour of the applicant. The interim relief was also decided in
her favour in the main. This does not ground a basis for leave to appeal to be granted.
“B. CRITICAL MISDIRECTION REGARDING PARAGRAPH 6 - THE PAYMENT ORDER
4. The Court c ommitted a fundamental misdirection in granting an order directing payment of
R686,572.54 within seven days without conducting any inquiry into the Respondent/Counter -
Applicant's ability to comply:
4.1. No evidence was led, nor any inquiry conducted, as to whether the Respondent/Counter -
Applicant has the financial means to make such payment within the timeframe specified;
4.2. The Respondent/Counter -Applicant's bank accounts (as at 16 December 2025) reflect total
available funds of less than R100,000.00, w hich is manifestly insufficient to comply with an
order to pay R686,572.54;
4.3. The Respondent/Counter-Applicant's monthly expenses and debit order obligations amount to
approximately R467,392.73, leaving him with no surplus funds;
4.4. The law is clear that a person cannot be imprisoned for failing to do that which is genuinely
impossible (see Fakie NO v CCII Systems (Pty) Ltd 2006 (4) SA 326 (SCA)); and
4.5. The combination of Paragraphs 2 and 6 creates an unconscionable situation where the
Respondent/Counter-Applicant faces imprisonment for non -compliance with a payment order
that he cannot possibly satisfy, regardless of his willingness to comply.”
5. It is submitted that another Court would find that an order requiring payment of a substantial su m
within seven days, combined with a mechanism for imprisonment upon non -compliance, cannot
lawfully be granted without first establishing that the debtor has the means to comply. The failure to
conduct such an inquiry renders the order fundamentally flawed.”
14. This has been dealt with in paragraph s 8 and 10 above and in my view does not
ground a basis for leave to appeal to be granted.
“FUNDAMENTAL MISDIRECTION ON NON-JOINDER OF CORPORATE ENTITIES
Misapplication of the Principles Governing Non-Joinder
6. The Court erred in its application of the established principles governing non-joinder by:
6.1. Failing to properly apply the test for joinder of necessity as set out in Gordon v Department of
Health: KwaZulu-Natal 2008 (6) SA 522 (SCA), which requires that a party must be joined if it has a
direct and substantial interest in the subject matter that may be affected prejudicially by t he
court's judgment;
6.2. Incorrectly finding at paragraphs 33 -34 that, even if joinder was necessary, the circumstances of
the matter did not require the joinder of the corporate entities, when the Court purported to grant
relief directly affecting the rights, assets, and management of those entities;
6.3. Erroneously concluding at paragraphs 36 -38 that the relief sought does not determine rights in
respect of assets belonging to the companies, when the order granted sole authority over "all
immovable property owned by such entities" and "any associated operational activities";
6.4. Failing to apply the principle in Matihabeng Local Municipality v Eskom Holdings Limited 2018 (1)
SA 1 (CC) that no court can make findings adverse to any person's interests w ithout that person
first being a party to the proceedings.
Failure to Recognise the Separate Legal Personality of Corporate Entities
7. The Court erred by:
7.1. Disregarding the principle enshrined in section 19 of the Companies Act 71 of 2008 that
companies enjoy separate legal personality distinct from their directors and shareholders;
7.2. Making far -reaching orders affecting the management, control, and assets of corporate entities
(ACP Metals (Pty) Ltd, IPJA Investments (Pty) Ltd, Forestriver (Pty) Ltd, Mufasa Global
Management Enterprises (Pty) Ltd, Little Dinkum (Pty) Ltd, and the trusts) without those entities
being joined as parties;
7.3. Failing to recognise that the Applicant had not sought relief to pierce the corporate veil , and
absent such relief, the separate legal personality of these entities had to be respected.
7.4. Essentially joining entities to the proceedings in circumstances where no application existed for
them to be joined. ”
15. This does not deal with the reasoning in the Judgment as to why non-joinder should not
prevent the relief (including that the parties were the sole director s of each of the
corporate entities involved) and ignores paragraph 14 of the Order which prevents a ny
of the assets being dealt with other than in the ordinary course of the business of the
relevant entities. The respondent, in his application for leave to appeal, inconsistently
does not comment on the entities which he was to control, as sole director, in terms of
the Order.
the Order.
16. The question of joinder is dealt with in copious detail in paragraphs 20 to 57 of the
Judgment. No basis was proffered for the reasoning and conclusions dealt with therein
to be wrong.
17. In my view, these paragraphs do not ground a basis for leave to appeal to be granted.
“MISDIRECTION ON THE CONTEMPT FINDINGS
Failure to Apply the Correct Legal Test for Civil Contempt
8. The Court erred in finding the Respondent/Counter-Applicant in contempt by:
8.1. Failing to properly apply the requirements for civil contempt, namely that the breach must be
wilful and in bad faith (mala fides), beyond a reasonable doubt, as established in Fakie NO v CCII
Systems (Pty) Ltd 2006 (4) SA 326 (SCA), Matjhabeng Local Municipality, and R v R (CCT 337/21)
[2023] ZACC 5; 2023 (9) BCLR 1126 (CC) (1 February 2023).
8.2. Rejecting the Respondent/Counter-Applicant's defence that his conduct was lawful, justified and
taken in good faith to protect legitimate business interests and prevent business collapse;
8.3. Failing to accord sufficient weight to the Respondent/Counter -Applicant's evidence that the
Applicant's own breaches of the 31 May Order and mismanagement of the business necessitated
his protective actions;
8.4. Incorrectly finding that the standard of proof was met when there was a genuine dispute as to
whether the Respondent/Counter-Applicant's conduct was in wilful defiance of the order or was
rather a reasonable interpretation thereof and/or a justified respon se to the Applicant's own
conduct.
Erroneous Interpretation of the 31 May Order
9. The Court erred in its interpretation of the 31 May Order by:
9.1. Finding at paragraphs 72 -84 that paragraph 3 of the 31 May Order was breached when the
Respondent/Counter-Applicant's conduct was consistent with a reasonable interpretation that
the order regulated existing operations and did not prohibit all business development and
adaptation necessary for survival;
9.2. Failing to consider that the crea tion of new business listings and systems was operationally
necessary in circumstances where the Applicant had rendered the existing mechanisms
unworkable through her own conduct;
9.3. Not adequately considering the context and purpose of the 31 May Order , which was to preserve
the status quo pending determination of the universal partnership action, and whether the
Respondent/Counter-Applicant's actions were consistent with that purpose.”
18. The test for contempt and Fakie were dealt with in detail in the Judgment.
19. The application for leave to appeal ignores the copious detail in the Judgment (for
example, paragraphs 72 to 102, 108 to 119 and 121) dealing with serial and objective
non-compliance with the Order by the respondent, such as the diversion of funds to the
extensive degree referred to above and causing them not to be paid into the bank
accounts specifically and unambiguously directed in the 31 M ay Order, the ignoring of
the directions of Mr Shaw and the self-servingly selective paying of the bond liabilities
----
only in respect of the respondent’s entities (as defined in the Order) and none in
respect of the applicant’s entities (as defined in the Order).
20. The respondent’s conduct was akin to that of the dishonest waiter whose protests as to
error fall flat when his errors always result in the customer being short-changed and
never receiving too much change.
21. As stated in paragraph 111 of the Judgment:
“This, however, in my view, cannot pass muster on the facts of the matter, including those considered in
detail in the above two sections: (1) The bonds on the properties owned by the entities of which the
applicant is the sole shareholder and director we re not paid while the bonds on the properties owned
by the entities of which the respondent is the sole director or trustee were paid: no explanation for this
transparently convenient divide was attempted. (2) The respondent caused R741 448 to be paid to
himself in respect of a loan which he claimed was owed to him by Hairbay. (3) The systematic diversion
of income. (4) The payments in breach of paragraph 11.1 of the 31 May Order. All of the above being
despite the regular written protest of the applicant.”
22. The unambiguous provisions of the Order and t hese acts in serial and objective non-
compliance with the Order , to a n extensive degree and in the face of protest, wholly
undermined any claims as to aspects such as necessity and any alleged interpretations
of the Order.
23. In my view, these paragraphs do not ground a basis for leave to appeal to be granted.
“MISDIRECTION ON THE RESCISSION APPLICATION
Incorrect Exercise of Discretion
10. The Court erred in its treatment of the rescission application by:
10.1. Finding at paragraph 52 that, even if there was a non-joinder, the appropriate approach was to
exercise the discretion against rescission, when the fundamental defect of non -joinder
rendered the original order ineffective against the corporate entities;
rendered the original order ineffective against the corporate entities;
10.2 Failing to consider the Respondent/Counter -Applicant's reliance on Rule 42(1)(c) that there
was a mistake common to the parties in agreeing to an order which was bad in law and
unenforceable against the actual parties it concerned;
10.3 Creating a circular argument at paragraph 50 that if the non -joinder point is good, the
rescission application fails for lack of notice to the corporate entities, while if the non -joinder
point is not good, then the rescission application fails for lack of a legal basis, when the logical
consequence should have been to rescind the order and require proper joinder.”
24. The respondent ignores the factors dealt with in the Judgment in respect of the
exercise of the discre tion to refuse the application for rescission, such as that one or
the other of the parties was the sole director of each of the corporate entities.
25. The question of joinder has been dealt with above and is dealt with in copious detail in
paragraphs 20 to 57 of the Judgment. No basis was proffered for the reasoning and
conclusions dealt with therein to be wrong.
26. Whether an argument is circular or not is of no moment – the fact is that Rule 42(3)
requires a joinder of any interested parties and , therefore, if the corporate entities were
interested parties, they were not joined and the rescission would fail.
27. In my view, these paragraphs do not ground a basis for leave to appeal to be granted.
“MISDIRECTION ON THE VARIATION OF THE ORDER
Failure to Grant Appropriate Relief
11. The Court erred in granting the Applicant sole authority over all entities by:
11.1. Accepting at paragraph 124 that a new mechanism was needed because the 31 May Order
had failed, but then failing to properly consider the counter application's proposal for control
to be granted to the Respondent/Counter -Applicant, who established, funded and
successfully operated these businesses for decades;
11.2. Failing to give adequate weight to the evidence that the Applicant's mismanagement, not the
Respondent/Counter-Applicant's conduct, caused the failure of the shared control
mechanism;
11.3. Not properly considering that the Applicant was never more than an employee in the business
and that her alleged partnership claim remains disputed in the pending action under case
number 16605/2024;
11.4. Granting interim relief that effectively determin es the ultimate relief sought in the pending
action, thereby prejudging the merits of the universal partnership claim.”
28. The Order did not grant control of all of the entities to the applicant: various entities
were ordered to be under the control of the respondent (paragraph 4 of the Order). This
was in the context of the mechanism of shared control in the 31 May Order having
failed and it being common cause that a new mechanism was required. The
respondent’s proposal was for the shared control to be re placed with his sole control.
Bearing in mind the findings in the Judgment , such as his contempt and diversion of
funds, this was plainly not a feasible proposal.
29. The questions of alleged mismanagement and the applicant’s alleged status as an
employee were considered directly in the Judgment (such as paragraph 129) . For
example, the fact that the applicant stood surety for R10.5 million of debt of the entities
of w hich she is the sole director and shareholder militates against the respondent’s
allegations, as well as the extensive diversion of funds by the respondent and the
selective failure to pay bond liabilities, all in breach of the 31 May Order.
30. The relief in the Order does not determine the ultimate relief sought in the pending
action. For example, the assets of the various entities were not to be dealt with in any
way (paragraph 14 of the Order) . The relief is interim pending the action and expressly
recorded in paragraph 16 of the Order to be subject to variation by this court.
31. In my view, these paragraphs do not ground a basis for leave to appeal to be granted.
“MISDIRECTION IN DISMISSING THE COUNTER APPLICATION
12. The Court erred in dismissing the counter application by:
12.1. Failing to properly weigh the competing applications when both parties acknowledged that
the existing mechanism had failed and both sought a replacement mechanism;
12.2. Not giving adequate consideration to the Respondent/Counter -Applicant's evidence that he
established, funded and operated the businesses for approximately 30 years;
12.3. Failing to properly consider the Respondent/Co unter-Applicant's evidence regarding the
Applicant's own breaches of the 31 May Order and the principle that she who comes to equity
must come with clean hands;
12.4. Not properly considering the alternative relief sought, including the proposal for a for ensic
audit to resolve the disputed financial issues.”
32. It was common cause that the shared management mechanism in the 31 May Order
had failed.
33. The evidence established plain ly and unequivocally conduct on the part of the
respondent in blatant disregard of that mechanism . As mentioned above, this included
the diversion of funds to an extensive degree and causing them not to be paid into the
bank accounts specifically and unambiguously directed in the 31 May Order, the
ignoring of the directions of Mr Shaw and the self-servingly selective paying of the bond
liabilities only in respect of the respondent’s entities (as defined in the Order) and none
in respect of the applicant’s entities (as defined in the Order). Again, the respondent’s
conduct was akin to that of the dishonest waiter whose protests as to error fall flat when
his errors always result in the customer being short -changed and never receiving too
much change.
34. On the other hand, the resp ondent’s recurring allegations as to mismanagement by the
applicant were not supported by any hard facts and were conclusions unsupported by
any substantial evidence. Similarly, his recurring allegations as to the applicant being
merely an employee with no contribution to the business was not supported by hard
facts and evidence, including those referred to above that she was the sole shareholder
and director of the ap plicant’s entities and had stood surety for their debts in the
amount of R10.5 million.
35. As to the alternative relief sought in the counter application, which was to place the
respondent in full control of each and every entity in the business, this wou ld simply
exacerbate the situation and would have put the fox in full control of the henhouse
which in my view would have been most inappropriate in the circumstances.
36. On the other hand, varying the control from the shared basis in the 31 May Order to the
split basis in the Order appeared the most appropriate and only viable option on the
evidence.
37. In my view, these paragraphs do not ground a basis for leave to appeal to be granted.
“ERRORS IN FACTUAL FINDINGS
13. The Court erred in its factual findings by:
13.1. Finding at paragraph 85 that the Respondent/Counter -Applicant engaged in " large-scale and
systematic diversion of funds " of over R2.5 million (increasing to R3, 165,409.95) when the
figures were disputed and unqualified, and a forensic audit was needed to resolve this
dispute;
13.2. Characterising the Respondent/Counter-Applicant's conduct as a breach when the evidence
showed that his actions were necessary oper ational responses to the Applicant's failure to
properly maintain business operations;
13.3. Relying at paragraph 129 on material from the Applicant's affidavit (including a WhatsApp
message in which the Respondent/Counter -Applicant allegedly referred t o the Applicant as
his "universal wife") when this was a matter of disputed fact that could not be resolved on the
papers;
13.4. Not properly considering the Respondent/Counter -Applicant's version that the Applicant was
never a partner but rather an empl oyee, when this factual dispute is central to the pending
action.”
38. The applicant produced clear evidence as to the diversion of funds contrary to the
Order.
39. That, and the various other breaches identified, were in plain non-compliance with the
Order, as referred to above.
40. The reference to the WhatsApp is misconceived by the respondent : this was not to
make a finding on the issue of a universal partnership, but to identify that there was
evidence which was in favour of the applicant’s version. That (1) the dispute as to the
universal partnership and that (2) there were competing allegations in this regard, were
identified, as opposed to ignored, and it was recorded that these were to be dealt with
in the Action.
41. In my view, these paragraphs do not ground a basis for leave to appeal to be granted.
“MISDIRECTION ON COSTS
14. The Court erred in awarding costs on Scale C by:
14.1. Failing to properly consider that the application was substantially premised on disputed facts
that could not properly be resolved on motion proceedings;
14.2. Not taking into account that the Respondent/Counter -Applicant had raised legitimate
defences including the non -joinder point, the interpretation of the order, and the good faith
defence;
14.3. Awarding punitive costs (Scale C) in circumstances where the Resp ondent/Counter-
Applicant's opposition was not frivolous or vexatious but raised genuine legal issues that
warrant consideration by a higher court.”
42. The contempt application and the rescission application were for final relief. The y were
both determined in the applicant’s favour. There was no reason why costs should not
follow the result, and nor was any proffered.
43. The need for the variation of the 31 May Order arose because of the respondent’s non -
compliance therewith, as dealt with comprehensively in the Judgment. Awarding costs
was considered appropriate by the court in the exercise of its discretion.
44. Scale C is not a punitive cost order but rather an award reflecting the court’s
consideration of aspects such as the complexity of the matter and the importance
thereof to the parties.
45. The matter was complex, b oth factually and legally, and of importance to the parties,
thereby, in the exercise of the court’s discretion, meeting the criteria for an award on
scale C.
46. In my view, these paragraphs do not ground a basis for leave to appeal to be granted.
47. The remaining content of the application f or leave to appeal is general and
conclusionary in nature and is covered by the aforegoing and will therefore not be
considered further.
48. The application for leave to appeal therefore falls to be dismissed with costs. The
consideration thereof was not as complex as the original matter itself and scale B shall
apply, a view which was supported by both parties.
Order
49. In the premise, the following order is made:
1. The application for leave to appeal is dismissed with costs, with scale B applying.
2. The order of this court handed down on 1 December 2025 in the above matter is
varied to include:
2.1. A new paragraph 18 which reads as follows: “The application for rescission of
the order of this court under the above case number on 31 May 2024 is
dismissed.”
2.2. A ne w paragraph 19 which reads as follows: “ Save to the extent of the
aspects in respect of which the relief sought therein was incorporated in the
above paragraphs of this order, the counter-application is dismissed.”
_________________
A Kantor
Acting Judge of the High Court
APPEARANCES
Counsel for the Applicant: Adv Kyle Felix
jkfelix@capebar.co.za
Instructed by: Karen Botha Attorney
Counsel for the Respondent: Mr Tim Dunn
tim@tjcdunnattorneys.co.za
Instructed by: TJC Dunn Attorneys