IN THE HIGH COURT OF SOUTH AFRICA
FREE STATE DIVISION, BLOEMFONTEIN
In the matter between:
MOHOKARE LOCAL MUNICIPALITY
and
2T INNOVATION BUSINESS CONSUL TING
& PROJECTS (PTY) LIMITED
THE SHERIFF OF ZASTRON
Not reportable
Case no: 2516/2024
APPLICANT
FIRST RESPONDENT
SECOND RESPONDENT
Neutral citation: Mohokare Local Municipality v 2T Innovation Business Consulting &
Projects (Ply) Limited & Another (2516/2024) [2026] ZAFSHC 48 (9 February 2026)
Coram: PARKS AJ
Heard: 22 January 2026
Delivered: This judgment was handed down electronically by circulation to the
parties' representatives by email and released to SAFLII. The date and time for the hand
down is deem·ed to be 11 h30 on 9 February 2026.
Summary: Uniform Rules of Court- stay of execution - rule nisi- Legal Practice
Act 28 of 2014 - unauthorised legal representation - authority to represent a company
public interest - essential service vehicle.
2
ORDER
1 The rule nisi granted on 6 November 2025 is hereby confirmed.
2 The respondent is ordered to pay the costs of the application, including the costs
of counsel on scale 8.
JUDGMENT
Parks AJ
Introduction
(1] On 14 October 2025, the respondent obtained a default judgment pursuant to which,
the applicant's goods were attached. Consequently, on 5 November 2025, the applicant
launched an urgent application for the suspension of the execution and the return of the
attached goods. The matter was subsequently postponed to 6 November 2025 to allow
the respondent to file its notice of intention to oppose and answering affidavit by no later
than 12h00, and for the applicant to file its replying affidavit by no later than 13h00. In the
absence of an answering affidavit being filed, a rule nisi was granted suspending all
execution steps pending the final determination of the application for rescission of the·
default judgment, including an order directing the Sheriff to release the goods under
attachment. The respondent was called upon to show cause on 22 January 2026, why
the execution steps pursuant to the order issued on 14 October 2025, suspending the
final adjudication of the application for rescission of the default judgment, should not be
made final.
(2) It appears that the answering affidavit was filed on 11 November 2025 and was
deposed to by Mr Phetogo Morake, the legal manager employed by the first respondent.
The applicant thereafter filed a replying affidavit on 15 January 2026. The parties'
respective heads of argument were filed on 14 January 2026 and 20 January 2026. The
application is opposed.·
Background
(3) On the day of the hearing, I was informed that, on 21 January 2026, a letter had
been addressed to the respondent seeking confirmation as to whether the deponent, who
purported to represent the first respondent, was an admitted and practising attorney·, duly
admitted to appear in the High Court.
3
[4] Prior to the commencement of the hearing, counsel for the applicant furnished me
with copies of the following authorities: Manong & Associates (Pty) Ltd v Minister of Public
Works & Another, 1 S v Martin (Review);2 S v Lebeloane; S v Ketshengane and S v
Ntshudu (Review)3 and Mamfengu v Magistrate Regional Court, Bizana & Others
(Review).4 I directed that copies of these authorities be provided to Mr Phetogo Morake
to enable him to respond to the intended argument by counsel for the applicant. Counsel
for the applicant subsequently advanced an argument concerning the propriety of the
respondent's representation, pointing out that the heads of argument were unsigned and
failed to disclose the identity of the drafter. This resulted in a request for the practice note,
which reflected that Mr Phetogo Morake would represent the respondent and appear in
person.
[5] In support of their argument, counsel for the applicant referred to s 33(1) of the Legal
Practice Act 28 of 2014 (the Legal Practice Act), which regulates the authority to render
legal services, as well as Manong & Associates (Pty) Ltd v Minister of Public Works and
Another, 5 wherein it was held that a director may be permitted to appear on behalf of a
company that is a party to the proceedings, provided that leave to do so is sought from
the court by way of a formal application. Counsel accordingly submitted that I was
required to consider the consequences where a person, in the absence of a right of
appearance or proper authorisation, purports to represent a company.
[6] Mr Morake, in response, contended that his role as a legal manager employed by
the respondent authorised him to ensure that the respondent was properly represented,
which he submitted justified his personal appearance in court. He conceded that he does
not have a right of appearance in terms of the Legal Practice Act and requested
not have a right of appearance in terms of the Legal Practice Act and requested
permission to continue acting on behalf of the respondent.
1 Manong & Associates (Pty) Ltd v Minister of Public Works and Another (2009] ZASCA 11 0; 201 0 (2) SA
167 SCA; [2010] 1 All SA 267 (SCA).
2 S v Martin (Review) (2020] ZAECPEHC 49.
3 S v Lebe/oane; S v Ketshengane and S v Ntshudu [2020] ZAECGHC 153.
4 Mamfengu v Magistrate Regional Court, Bizana & Others (2025] ZAECMHC 90.
5 Op cit fn 1 para 14.
The issue
[7] Whether Mr Morake has the authority to appear on behalf of the respondent in
these court proceedings and further whether the rule nisi issued on 6 November 2025
must be confirmed .
The law
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[8] Rule 18(1) of the Uniform Rules of Court provides that a combined summons and
the pleadings must be signed by both an attorney and an advocate, unless the attorney
concerned holds a right of appearance in the High Court, or where a party sues or defends
in person, in which event the documents must be signed by that party. In ter~s of s 33(1)
of the Legal Practice Act, only a practising legal practitioner duly admitted and enrolled in
terms of its provisions may appear in any court of law or draw up or execute any
instrument or document relating to, or intended for use in, proceedings before a court of
civil or criminal jurisdiction within the Republic.
[9] A company is defined in s 1 of the Companies Act 71 of 2008 (the Companies Act),
as a juristic person incorporated in terms of the provisions of that Act. Once duly
registered, a company constitutes a distinct legal persona, separate and independent
from its members, whether considered individually or collectively. In terms of s 19(1 )(b)
of the Companies Act, a company has all the legal powers and capacity of an individual,
except to the extent that a juristic person is incapable of exercising such powers or having
such capacity, or where the company's memorandum of incorporation provides
otherwise. Section 20(1) of the Companies Act further provides that a company's
memorandum of incorporation may restrict, limit, or qualify the legal capacity and powers
of the company. Section 66(1) of the Companies Act, vests the management of a
company in its board of directors, empowering them to cause the company to participate
in legal proceedings . Shareholders do not, merely by virtue of their shareholding, have
locus standi to represent the company in such proceedings, a principle affirmed in
locus standi to represent the company in such proceedings, a principle affirmed in
Basotho Meat Enterprise v Falcodor 199 CC tla lceburg Trading NO and 2 Others.6
[1 O] The Supreme Court of Appeal held in Ganes and Another v Telecom Namibia Ltd, 7
6 Basotho Meat Enterprise v Fa/codor 199 CC tla /ceburg Trading NO and 2 Others [2024] ZAFSHC 268
para 18.
7 Ganes and Another v Telecom Namibia Ltd [2003] ZASCA 123; 2004 (3) SA 615 (SCA); 2004] 2 All SA
609 (SCA); (2004) 25 ILJ 995 (SCA) para 19.
5
that it is irrelevant whether the deponent to an affidavit filed in support of an application
on behalf of a company is authorised to depose to the affidavit. What is relevant is that
'the institution of the proceedings and the prosecution thereof must be authorised'. In
Manong & Associates (Ply) Ltd v Minister of Public Works,6 it was held that, in rare and
exceptional, or at least unusual, circumstances, the general rule may be relaxed. In each
such instance, however, the leave of the court must be obtained in advance. In this
regard, Ponnan JA stated:
'I have expressly refrained from formulating a test for the exercise of the court's inherent power
as I believe that such cases can confidently be left to the good sense of the Judges concerned.
Lest this be misconstrued as a tacit or general licence to unqualified agents, it needs to be
emphasised that in each such instance leave must be by way of a properly motivated, timeously
lodged formal application showing good cause why, in that particular case, the rule prohibiting
non-professional representation should be relaxed. Individual cases can thus be met by the
exercise of the discretion in the circumstances of that case. It would thus be impermissible for a
non-professional representative· to take any step in the proceedings, including the signing of
pleadings, notices or heads of argument (as occurred here), without the requisite leave of the
court concerned first having been sought and obtained.'
[11] In Advertising Digital Services Pty (Ltd) v Standard Bank of South Africa and
Another,
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Khumalo J held that the court must determine whether exceptional
circumstances exist and whether any envisaged inconvenience or prejudice will be
suffered by the opposing party. The court is accordingly required to assess whether an
applicant has made out a proper case for non-compliance with the general rule by
showing good cause why a non-professional person should be permitted to act as a
showing good cause why a non-professional person should be permitted to act as a
representative in legal proceedings. The purpose of this enquiry is primarily to prevent
abuse of the judicial process and to protect the integrity of the legal system. In this regard,
the court bears a responsibility to uphold procedural fairness and to deter conduct that
undermines the administration of justice, thereby ensuring efficient and equitable legal
processes and reinforcing the authority of the court.
Application of the law to the facts
Whether Mr Mo rake has the authority to appear on behalf of the respondent in these
court proceedings
8 Op cit fn 1 para 14.
9
Advertising Digital Services Ply (Ltd) v Standard Bank of South Africa and Another (2025] ZAGPPHC 625
para 19.
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[12] Upon a perusal of the pleadings, it is unclear who the signatory to the notice of
intention to oppose is, as the document bears only a signature and the address of the first
respondent. The same deficiency is apparent in the filing notice of the answering affidavit,
signed at Bloemfontein on 11 November 2025, as well as in a further filing notice, signed
at Rustenburg on 6 November 2025. In both instances, the documents contain merely a
signature,· without any identificati9n of the signatory, and reflect only the address of the
first respondent. Mr Morake failed, in his answering affidavit, to state that he was
authorised to depose to the affidavit on behalf of the first respondent. He further failed to
allege that he possessed the requisite authority to institute or defend the proceedings,
which, in the case of a company, would ordinarily require authorisation by way of a
properly adopted resolution.
[13] Having regard to the considerations set out above, I find that Mr Morake lacked both
the right of appearance and the requisite authority to institute· proceedings to represent
and appear on behalf of the_ respondent, a company which exists as a separate juristic
entity.
Whether the rule nisi issued on 6 November 2025 must be confirmed
[14] Counsel for the applicant submitted that a rule nisi was granted on 6 November
2025, staying execution, and that the refuse truck attached pursuant to the writ of
execution was subsequently returned to th~ applicant. Counsel for the applicant further
contended that this Court ought to apply the framework of principles enunciated in Gois
tla Shakespeare Pub v Van Zy/ (Gois), 10 when considering the granting of a stay of
execution. It was pointed out that the applicant's rescission application is enrolled for
hearing · on 6 March 2026. Counsel submitted that, should the interim order not be
confirmed, the continued unavailability of the refuse truck would have adverse
confirmed, the continued unavailability of the refuse truck would have adverse
consequences for the community, as the applicant possesses only one refuse truck with
which to render refuse removal services. This would result in severe backlogs and
potentially unhygienic conditions.
[15] Lastly, it was argued that, in considering whether to confirm the interim order, the
Court may have regard to the grounds for rescission, including the contention that any
payment allegedly due to the respondent must first be certified by the Chief Financial
10 Gois Va Shakespeare Pub v Van Zyl 2011 (1) SA 148 (LC) para 37.
7
Officer prior to payment. However, this consideration is not the sole factor to be taken into
account in determining the matter.
[16] In Lesapo v North West Agricultural Bank and Another,11 held that a superior court
has, in terms of s 173 of the Constitution of the Republic of South Africa, 1996, the
inherent power to stay execution if it is in the interests of justice. Mokgoro J, in pointing
out that execution is incidental to the judicial process, stated that execution 'is subject to
the supervision of the court which has an inherent jurisdiction to stay the execution in the
interests of justice'. In BP Southern Africa (Pty) Ltd v Mega Burst Oils and Fuels (Pty) Ltd
and Another, BP Southern Africa (Pty) Ltd v ZA Petroleum (Pty) Ltd and Another, 12 the
court referred to the principles laid down in Gois as 'guidelines' and held that it could, in
the exercise of its discretion whether or not to grant a stay of execution, consider the
prospects of success in an application for leave to appeal against the order in respect of
which a stay was sought.
[17] Apart from the provisions of the rule, the Court possesses an inherent common-law
discretion to order a stay of execution and to suspend the operation of an order granted
by it. This discretion must be exercised judicially but is otherwise not circumscribed. I have
not had regard to the contents of the answering affidavit filed on behalf of the respondent,
given my finding that the respondent was not authorised to depose to the affi~avit. Even if
consideration were to be given to the answering affidavit, it merely highlights irrelevant
matters, including the use of the same case number allocated to the summons to the urgent
matter, which in the respondent's view should have been issued under a different case
number; the contention that service was ineffective as it was effected via email; an alleged
lack of urgency, which issue is moot; and a detailed response to the rescission application,
lack of urgency, which issue is moot; and a detailed response to the rescission application,
particularly with reference to prospects of success, despite the matter not yet having been
enrolled.
[18] In considering the potential prejudice to the community, the continued unavailability
of the refuse truck would result in a complete cessation of service delivery until such time
as it is returned to the applicant. There is also the possibility that the applicant may be
11
Lesapo v North West Agricultural Bank [1999] ZACC 16; 2000 (1) SA 409 (CC); 2000 (1) SA 409; 1999
(12) BCLR 1420 para 13.
12
BP Southern Africa (Pty) Ltd v Mega Burst Oils and Fuels (Pty) Ltd and Another; BP Southern Africa (Pty)
Ltd v ZA Petroleum (Pty) Ltd and Another [2020) ZAGPJHC 56; 2022 (1) SA 162 (GJ) paras 17-19.
8
compelled to outsource the service ordinarily rendered using the refuse truck, which
would have financial implications for the public purse. I, accordingly, find that it is in the
interests of justice to grant a stay of execution.
Order
(19) I, accordingly, make the following order:
1 The rule nisi granted on 6 November 2025 is hereby confirmed.
2 The respondent is ordered to pay the costs of the application, including the costs of
counsel on scale B.
ACTING JUDGE OF THE HIGH COURT
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Appearances
For the applicant: LA Roux
Instructed by: Peyper Attorneys, Bloemfontein
For the respondent: No appearance.