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SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in
compliance with the law and SAFLII Policy
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE Number: 119605/2024
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO OTHER JUDGES: YES/NO
(3) REVISED: YES/NO
10/02/2026
In the matters between: -
MIDSTREAM HOMEOWNERS ASSOCIATION APPLICANT
NPC
(Registration Number: 2002/017983/08)
And
MATOME SOLOMON RALEBIPI RESPONDENT
(Identity Number: 7[...])
JUDGMENT
BAQWA, J
Introduction
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[1] This is an application for leave to appeal incorrectly lodged as a notice of appeal
regarding an order granted by this court on 24 June 2025, in favour of the applicant
in the main application by Midstream Home Owners Association (Midstream).
Grounds
[2] Mr Ralibipi bases his application on the following grounds:
2.1. The granting of interdictory relief was incorrect as an alternative remedy
existed in the form of a remedy pending before the Community Scheme
Ombudsman in terms of the Community Schemes Ombudsman Services Act
9 of 2011.
2.2. There was a pending dispute which was referred to the Ombudsman on
20 June 2025, of which Midstream was aware.
2.3. The court erred in refusing condonation as well as the opportunity to file a
supplementary affidavit.
2.4. The court erred in ignoring the notice of intention to oppose and the
answering affidavit and proceeding with the matter as an unopposed
application.
[3] The application for leave is opposed by Midstream on the basis that there are no
reasonable prospects of success on appeal and no compelling reason for granting
leave to appeal.
[4] The application fails to satisfy the test, which was dealt with by the SCA in MEC
for Health v Mkhitha1 as follows:
1 2016 JDR 2014 SCA at paragraph 17.
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"[17] An applicant for leave to appeal must convince the court on proper
grounds that there is a reasonable prospect of realistic chances of success on
appeal. A mere possibility of success, an arguable case, one that is not
hopeless, is not enough. There must be a sound rational basis to conclude
that there is a reasonable prospect of success on appeal."
Alternative remedy
[5] The first and second grounds demonstrate a lack of understanding of the purpose
and nature of the third requisite for a final interdict set out in Setlogelo v Setlogelo 2
This requirement was further elucidated by Wallis JA (as he then was) in Hot 2 and
others v University of Cape Town 3
"[35] For the sake of clarity it is necessary to say something about this
requisite. The appellant's submissions wavered between a contention that the
court has general jurisdiction to withhold the remedy of an interdict and
contending that various causes were open to the university to resolve its
dispute with the protesters and that this constituted alternative remedies that
were to be preferred to an interdict in order to deal with the university's
concerns. All of these submissions were misconceived because they
proceeded from a misconception as to the purpose of the interdict and as to
the nature of this requisite for its grant.
[36] Firstly, the purpose of an interdict is to put an end to conduct in breach of
the applicant's rights. The applicant invokes the aid of the court to order the
respondent to desist from such conduct, and, if the respondent does not
2 1914 AD 221 at para 227.
3 2017 (2) SA 485 (SCA) at para 35.
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comply, to enforce it s order by way of an action for contempt of court.
Secondly, the existence of another remedy will only preclude the grant of an
interdict where the proposed alternative will afford the injured party a remedy
that gives it similar protection to an interdict against the injury that is occurring
or is apprehended. That is why in many cases a court will weigh up whether
an award of damages will be adequate to compensate the injured party for
any harm they may suffer. Thirdly, an alternative remedy must be a legal
remedy, that is, a legal remedy that a court may grant and, if need be,
enforce, either by the process of execution or by way of proceedings for
contempt of court. The fact that one of the parties, or even a judge, may think
that the problem would be better solved, or ultimately only be resolved, by a
strike or other means, is not a justification for refusing to grant an interdict."
[6] In the circumstances, the above pronouncement by the SCA puts paid to the
applicant’s Community Schemes Ombudsman submissions. The fact of the matter is
that the alleged alternat ive remedy suggested by the applicant is simply not an
alternative remedy to that of an interdict.
[7] What is trite is that an order obtained properly in terms of a proper procedure s in
terms of the Uniform Rules of Court cannot be upset by a defence raised late ex post
facto without the timeous lodgement of an application for condonation to enable
reconsideration of the default judgement or order granted by default such as in the
present case.
[8] Rule 6(5)(d)(ii) provides that Mr Ralibi pi’s answering affidavit ought to have been
filed within 15 days after the filing of his notice of intention to oppose, which was
lodged on 28 March 2025.
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[9] Instead, the applicant only filed an affidavit on 20 June 2025, without any
application for condonation.
[10] It is an established principle of our law that condonation cannot be simply had
for the taking. That is the principle which was applied by this court when the
applicant's attempt to lodge the answering affidavit without an application was
refused by this court. It is required by the Rules of Court that a party ought to give a
full explanation regarding the non -compliance which explanation must be sufficient
and reasonable.
[11] In this matter, the main application was served on 28 October 2024 after which
Mr Ralibipi communicated to Midstream's attorneys on 28 October 2024 that further
communication should be addressed to his attorneys. He thereafter delivered a
notice of intention to oppose on 28 March 2025.
[12] In terms of Rule 6(5)(b)(i), Mr Ralibi pi's answering affidavit was supposed to be
delivered within 15 days after delivery of the notice of intention to defend. The
answering affidavit was not enough to excuse the default. This, the applicant failed to
do and only delivered it on 20 June 2025 without any application for condonation.
[13] In the circumstances, without a full explanation for the non -compliance with the
Rules of Court, this court exercised its discretion to exclude the answering affidavit
and deal with the matter as an unopposed application.
[14] In light of the absence of any reasonable and acceptable explanation for Mr
Ralibipi's delay, it cannot be argued that the court had not exercised its discretion
judicially or that it had misdirected itself in any way . It had instead acted in terms of
established legal principles.
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[15] I have not deemed it necessary to deal with the costs issue raised by the
applicant as the order in that regard was consented to in the memorandum of
agreement entered into between the parties. The applicant is bound by the terms
thereof, which specifically refer to costs on an attorney and client scale in the event
of litigation ensuing.
[16] In this regard I f ind it apposite to make reference to the remarks of the
Constitutional Court in Grootboom v National Prosecuting Authority and Another 4,
when the following remarks were made:
"[34] One gets the impression that we have arrived at a stage where litigants
and lawyers disregard the rules and directions issued by the courts with
monotonous regularity. In many instances, the explanations are prof fered. In
others, there is no explanation at all. The prejudice caused to the court is self-
evident. A message must be sent to litigants that the rules and the court's
directions cannot be disregarded with impunity."
[17] Regarding the submission that the court erred in not granting Mr Ral ebipi an
opportunity to file a supplementary affidavit, the submission is equally not
sustainable.
[18] It is trite that an applicant who wishes to file a supplementary affidavit must
make the necessary application to do so. There was no such application by Mr
Ralebipi. How such an omission is laid at the door of the court is simply mind -
boggling, to say the least.
4 2014 (2) SA 68 (CC) at paragraph 34.
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[19] In the circumstances, there can only be one conclusion The application for leave
to appeal is meritless, and I also find no compelling reasons to grant the same as the
matter raises no novel issues or questions of law.
[20] I also found that the application is baseless and amounts to an abuse of the
process.
[21] In the result, I make the following order:
21.1 The application for leave to appeal is dismissed with costs on the scale
as between attorney and client.
__________________________
SELBY BAQWA
JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
Date of hearing: 29 January 2026
Date of judgment: 10 February 2026
Appearance
behalf of the Applicant Adv A Sefoka
thato@manala-inc.co.za
Instructed by Manala & Co. Inc.
On behalf of the Respondents Adv SN Davis
coenie@cf-law.co.za
Instructed by C Fourie Attorneys
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