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IN THE HIGH COURT OF SOUTH AFRICA
NORTH WEST DIVISION, MAHIKENG
Not Reportable
Case No: 2359/2024
In the matter between:
KEDIBONE GLORIA SEBESHO
and
ORETETSE CAROLINE LEKALAKE
Applicant
First Respondent
LEKALAKE FAMILY Second Respondent
BAROLONG BOO RATSHIDI TRIBAL COUNCIL
MAHIKENG LOCAL MUNICIPALITY
STATION COMMANDER: SAPS MMABATHO
Third Respondent
Fourth Respondent
Fifth Respondent
Coram: Petersen ADJP
Date enrolled: 22 January 2026
Judgment reserved: 22 January 2026
Delivered: This judgment was handed down electronically by circulation to the
parties' representatives via email. The date and time for hand-down of the
judgment is deemed to be 14h00 on 26 January 2026.
Summary: Practice - Applications - Application to strike out - First and
Second Respondents sought to remove portions of the Applicant's replying
affidavit, claiming they introduced "new matter" or were irrelevant - Striking
Out Application Dismissed - The disputed paragraphs in the Applicant's
replying affidavit relevant and serves to directly respond to allegations raised in
the First and Second Respondents' answering affidavit.
Practice - Applications - Application for Referral to Oral Evidence -
Applicant requested a hearing of oral evidence under Uniform Rule 6(5)(g) to
resolve factual disputes that could not be settled on paper - Rule 30/30A
Application by First and Second Respondents' - Respondents' challenge to the
procedural validity of the request for oral evidence rejected - Referral to Oral
Evidence granted.
ORDER
1. The respondents' application to strike out is dismissed.
2. The respondents' application in terms of Rule 30 and 30A is dismissed.
3. The main application is referred for the hearing of oral evidence in terms
of Rule 6(5)(g) on the following issues:
3.1 The authenticity and veracity of the Land Allocation Certificate
(Annexure "OCL4").
3.2 The historical allocation and boundaries of Stand No. 1[...] and Stand No.
1[...]2, Ramosadi Village, including whether the Third Respondent allocated
Stand No. 1[...]2 to the First Respondent's late husband; and whether the
Applicant's late grandparents donated a portion of Stand No. 1[...] to the First
and/or Second Respondents.
3.3 The existence and extent of any encroachment by the First and/or Second
Respondents onto the Applicant's land.
4. Uniform Rule 35 shall apply to discovery for the purpose of the hearing.
5. The costs of both interlocutory applications are reserved for determination
by the court hearing the oral evidence.
JUDGMENT
Petersen ADJP
Introduction
[1] This Court is seized with two interlocutory applications arising from a
dispute concerning the alleged encroachment by the first and second Respondents
("the respondents") onto the applicant's property, Stand No. 1[...], Ramosadi
Village, Mahikeng. In the m ain application, the applicant seeks an order for the
eviction of the First and Second Respondents from Stand No. 1[...], Ramosadi
Village in terms of Section 4(1) of the Prevention of Illegal Eviction from and
Unlawful Occupation of Land Act 19 of 1998 ('the PIE Act").
Background
[2] The applicant and first Respondent hold contiguous customary land
allocations within the same tribal settlement. The applicant alleges that there is a
physical encroachment from the first respondent's allocation onto her own.
[3] While the applicant contends that the first respondent tacitly admitted to
this encroachment in 2021 by suggesting the applicant demolish the structures
herself, the respondents have since filed an answering affidavit denying any such
encroachment. Furthermore, a dispute has arisen regarding the history of the
land's allocation. The first respondent claims to have occupied the land since
1969, following an allocation to her late husband by Kgosi Tiro Molema. The
applicant, in a replying affidavit, introduced testimony from her aunt, Mrs.
Maikecwane, regarding a disputed donation of land made by the applicant's
grandparents to the respondents.
The two interlocutory applications
[4] This Court is seized with two interlocutory appli cations, albeit that both
have not been set down with the main application for adjudication. The first is an
application by the respondents to strike out certain portions of the replying
affidavit of the applicant. The second is an application by the appli cant for the
referral of the matter to oral evidence in terms of Uniform Rule 6(5)(g), which
the respondents oppose under Uniform Rule 30A as an irregular step.
[5] At the hearing of the application on 22 January 2026, Adv Scholtz for the
application sought direction from this Court on the conduct of the application,
since the two interlocutory applications he opined had to be considered before the
merits of the application. Essentially, I understood him to propose that the
application be case managed and be postponed for the interlocutory applications
to be considered since same were not enrolled by the respective parties. Mr
Bayford on the contrary opined that the application could be considered as a
whole, with this Court adjudicating the interlocutory applications and the merits
of the main application. The advanced age of the parties who sought closure on
this matter, was proffered as a basis by Mr Bayford for disposing of the
application as whole.
[6] After engaging the legal representativ es for the parties, consensus was
reached that notwithstanding non-compliance with the Rules for setting down of
the interlocutory applications, the matter be heard on the interlocutory
applications. The logic underscoring this pragmatic approach proposed by the
Court is that the application for referral of the matter to oral evidence and the
outcome of that application would determine the further conduct of the matter,
whether to continue adjudication on the papers in the ambit of application
proceedings; or referral of the matter to oral evidence akin to action proceedings.
Condonation for the late filing of the heads of argument of the applicant
[7] It is common cause that the heads of argument of the applicant were
delivered out of time. Mr Bayford took no issue with the lateness of the heads of
argument, with an intimation that the allowing same would not be opposed.
[8] I do not propose to traverse th e trite authorities on condonation. The
application for condonation for the late delivery of the heads of argument was
accordingly granted.
The application to strike out
[9] The respondents seek to strike out various paragraphs of the replying
affidavit of the applicant (specifically paragraphs 26.6, 26.7, 39.3, 41.3, 56.1-
56.3, 58.1, 63-66, 68.3, and 71.1-71.4, on the grounds that they are scandalous,
vexatious, irrelevant, or constitute an attempt to introduce "new matter".
[10] The requirements for a successful striking out application were articulated
in Beinash v Wixley 1. It is trite that a court will only grant such an order if: (1) the
matter is indeed scandalous, vexatious, or irrelevant; and (2) the applicant for the
strike-out will be prejudiced if the matter is not removed.
1 Beinash v Wixley (457/95) [1997] ZASCA 32; 1997 (3) SA 721 (SCA); [1997] 2 All SA 24 I (A); (27
March 1997).
[11] Furthermore, it is a well -established principle that an applicant must make
out their case in the founding affidavit and cannot bolster a weak case
through new allegations in the replying affidavit.
[12] The respondents contend that the applicant has impermissibly used the
replying affidavit to augment her cause of action with new evidence that should
have been in the founding affidavit. The respondents argue this information was
available at the time of the founding affidavit and its late introduction is
prejudicial as they cannot respond once pleadings are closed.
[13] It is clear that whilst the respondents cast their net quite wide on the alleged
offending paragraphs of the replying affidavit of the applicant, they specifically
object to paragraphs 26.7 and 56.3, which contain new evidence regarding the
applicant's aunt, Mrs. Maikecwane, and her alleged knowledge of a "disputed
donation" of land. The respondents further take issue with the paragraphs
describing the specific measurements of the stand and the extent of the
encroachments.
[14] The applicant argues that the first and second respondents' application to
strike out portions of the replying affidavit is without merit. The applicant's
response focuses on two main categories: scandalous/vexatious/irrelevant matter
and the introduction of "new matter".
[15] As to paragraph 26.6 of the replying affidavit, the applicant counters, on
trite authority, that "scandalous" matter is abusive or defamatory, "vexatious"
matter is intended to harass or annoy, and "irrelevant" matter does not apply to
the case at hand. To this end, the applicant submits that the paragraph is neither
abusive nor defamatory. The applicant argues that the content is relevant because
it establishes the basis upon which the applicant's late grandparents originally
donated the land to the respondents. The applicant maintains that the paragraph
simply amplifies the existing issue regarding the donated land.
[16] As to the respondents claim that paragraphs 26.7, 56.3, and 91 constitute
"new matter" that should not be in a replying affidavit, the applicant counters
that, paragraph 26.7 was written in direct response to the respondents' denial of
the donation and encroachment found in their own answering affidavit. The
argument then goes that it is trite law that if a respondent's affidavit reveals new
facts, the applicant is permitted to enlarge upon those facts and set up additional
grounds for relief arising from them. The applicant posits that the disputed
paragraphs seek to controvert the claim of the respondents' that a neighbour
introduced the parties in 1972; and that the applicant was simply expanding on
allegations introduced in paragraph 35 of their answering affidavit by the
respondents' themselves.
[17] As to the issue taken by the respondents with the paragraphs describing
the specific measurements of the stand and the extent of the encroachments, the
applicant argues that the encroachment was already clearly depicted in pictures
(Annexures FAl(a) through FAl(h)) attached to the original founding affidavit.
The applicant posits that no new cause of action was introduced in the replying
affidavit in that the measurements provided in the replying affidavit only served
to amplify what was already shown in the pictures.
[18] In my view, the disputed paragraphs in the replying affidavit serve to
controvert allegations introduced in the answering affidavit by the respondents
themselves, particularly regarding the historical allocation of the land and the
introduction of parties by a neighbour in 1972. The evidence of the applicant's
aunt, Mrs. Maikecwane, and her alleged knowledge of a "disputed donation" of
land is clearly in reply to the demarcation of the land.
[19] In my view, the application to strike out lacks meri t as the information and
evidence introduced in the replying affidavit is relevant to the factual issues. To
my mind, the introduction of the material in the replying affidavit of the applicant,
would in the ordinary course be relevant to the issue of whet her it adds to any
factual disputes which cannot be resolved on the papers in motion proceedings.
[20] The application to strike out is accordingly dismissed.
The Rule 6(5)(g) application: Referral to oral evidence
[21] It is unsurprising, with this Court having dismissed the application to strike
out, that the applicant seized with the triad of papers, constituting the founding
affidavit, the answering affidavit and the replying affidavit is faced with a
conundrum, which she could not have anticipated.
[22] It follows axiomatically that the applicant would now contend that several
material disputes of fact have arisen that cannot be resolved on the papers alone.
The applicant contends in this regard that there is a disagreement on the portion
of land, "donated" to the respondents. Notably this emerged in the replying
affidavit of the applicant. The applicant further contends that there are issues
regarding the veracity and authenticity of a certificate dated 16 August 2023,
which contradicts the respond ents' claim that the stand was allocated in 1969.
Lastly there is a disagreement over the date the applicant's grandmother was
allocated Stand No. 1[...].
[23] The applicant argues that the correct legal procedure was followed by
applying for an oral hearing in limine when she realised the conundrum brought
about by the factual disputes on the papers. The applicant, mindful of the
overwhelming authority on referral of applications to oral evidence, correctly
asserts that such applications should be made as soon as affidavits have been
exchanged and it becomes clear that a dispute exists, rather than waiting until the
end of argument s on the merits. The applicant relies on the cases of Lombaard v
Droprop CC and Others and Kalil v Decotex (Pty) Ltd and Another2 to support
the timing of her application.
[24] The applicant further refutes the claim by the respondents' that the
application for referral to oral evidence is a delaying tactic, submitting that Rule
6(5)(g) is intended to ensure a just and expeditious decision when a matter cannot
be properly decided on affidavit. The oral evidence posits the applicant, is
specifically sought to test the authenticity of the respondents' Land Allocation
Certificate, which is date stamped 16 August 2023 but purportedly relates to an
allocation in 1969; clarify discrepancies such as the signature of the "Stand
Owner" being absent and the Identity Number of the signatory appearing to
contradict the claimed 1969 allocation date; and the donation of the specific piece
of land as alleged by the aunt of the applicant.
[25] The first and second respondent oppose the referral and have filed a cross
application in terms of Rule 30 and 30A to have the applicant's request declared
an irregular step. They assert that the applicant's request for referral to oral
evidence is an irregular step and a failure to comply with the Uniform Rules of
Court. They further assert that the application for referral to oral evidence is
intended to delay the finalization of the proceedings and to pre-empt an adverse
outcome in the respondents' own "striking out" application. The respondents
contend that the applicant's request is "misconstrued" because the applicant
2 Lombaard v Droprop CC and Others (377/09) [20 I OJ ZASCA 86; 20 IO(5) SA I (SCA) ; [201OJ 4 All
SA 229 (SCA) (31 May 2010) and Kalil v Decotex (Pty) Ltd and Another (158/87) [1987] ZASCA 156;
[1988] 2 All SA 159 (A) (3 December 1987).
simultaneously denies factual disputes in her replying affidavit while persisting
with the relief sought in the notice of motion.
[26] In the locus classicus, Room Hire Co (Pty) Ltd v Jeppe Street Mansions
(Pty) Ltd3, the court clarified that motion proceedings are only appropriate where
there is no real dispute of fact. If a genuine dispute exists that cannot be resolved
on affidavit, the court must refer the matter for oral evidence or trial.
[27] I take cognisance of the fact that there are in fact significant discrepancies
in the Land Allocation Certificate dated 16 August 2023, signed by a person
whose Identity Number suggests a birth date (740301) inconsistent with an
allocation in 1969, and lacks the signature or thumbprint of the "Stand Owner".
This is exacerbated by the reference to evidence of the aunt of the applicant. There
is clearly a direct conflict regarding the boundaries of Stand 1[...] and Stand 1[...]2
and the alleged "donation". This is not a "bald denial" but a substantial factual
conflict.
[28] It being trite that Rule 6(5)(g) provides this Court with a discretion to refer
a matter to oral evidence when an application cannot be properly decided on
affidavit and given the direct conflict regarding the authenticity of the
title/allocation documents and the physical extent of the encroachment, this
matter cannot be justly resolved on the papers.
3 Room Hire Co (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd 1949 (3) SA 1155 (T).
Order
[29] In the result, I make the following order:
1. The respondents' application to strike out is dismissed.
2. The respondents' application in terms of Rule 30 and 30A 1s
dismissed.
3. The main application is referred for the hearing of oral evidence in
terms of Rule 6(5)(g) on the following issues:
3.1 The authenticity and veracity of the Land Allocation Certificate
(Annexure "OCL4").
3.2 The historical allocation and boundaries of Stand No. 1[...] and Stand
No. 1[...]2, Ramosadi Village, including whether the Third Respondent
allocated Stand No. 1[...]2 to the First Respondent's late husband; and
whether the Applicant's late grandparents donated a portion of Stand No.
1[...] to the First and/or Second Respondents.
3.3 The existence and extent of any encroachment by the First and/or
Second Respondents onto the Applicant's land.
4. Uniform Rule 35 shall apply to discovery for the purpose of the hearing.
5. The costs of both interlocutory applications are reserved for determination
by the court hearing the oral evidence.
AH PETERSEN
ACTING DEPUTY JUDGE PRESIDENT OF THE HIGH COURT,
NORTH WEST DIVISION, MAHIKENG
Appearances
For the Applicant:
Instructed by:
For the applicant:
Instructed by:
Adv H Scholtz
Sethunyane Attorneys
Mahikeng
Mr A E Bayford
Legal Aid South Africa
Mahikeng