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, JOHANNESBURG
Case Number: 2022/024956
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: NO
24 February 2026
In the matter between:
ANDRIES JULY SHONGWE First Applicant
FIKELEPHI MOLY SHONGWE Second Applicant
And
CS HENTIQ 1151 (PTY) LTD First Respondent
EKURHULENI METROPOLITAN MUNICIPALITY Second Respondent
SHERIFF OF THE COURT, GERMISTON SOUTH Third Respondent
In re:
CS HENTIQ 1151 (PTY) LTD Applicant
And
ANDRIES JULY SHONGWE First Respondent
FIKELEPHI MOLY SHONGWE Second Respondent
EKURHULENI METROPOLITAN MUNICIPALITY Third Respondent
2
This judgment was handed down electronically by circulation to the parties’
representatives by email and by uploading the judgment onto
CourtOnline/CaseLines. The date of delivery of the judgment is deemed to be
24 February 2026.
JUDGMENT
SOUTHWOOD, AJ:
[1] The applicants seek the rescission of a judgment granted by this Court
(per Dippenaar J) in their absence on 4 May 2023 1. That judgment
ordered the demolition of certain structures erected or being erected by
the applicants on the property situated at 1[ …] K[…] Street, E […] ,
Germiston (‘the property’). The applicants also seek a stay of the
demolition order pending the finalisation of a rezoning application which
they claim is pending before the second respondent ; an order setting
aside the demolition order of 2 May 2023; and condonation for the late
filing of this rescission application.
[2] The application is opposed by both the first and second respondents.
The first respondent , in particular, seeks a special costs order on the
attorney and client scale.
The Parties
[3] The first applicant, Mr Andries July Shongwe, and the second
applicant, Ms Fikelephi Moly Shongwe, are the registered co- owners of
the property. They purchased the property in 2020 with the assistance
of a bond registered in favour of Nedbank Limited. Their primary
1 Although the papers refer to an order granted on 2 May 2023, no such order is in the
papers and I have assumed in the applicants’ favour that they are referring to the order
granted on 4 May 2023.
3
residence (a phrase which suggests other residences) is at [ …] F[…]
Street, K[…] , Boksburg.
[4] The first respondent, CS Hentiq 1151 (Pty) Ltd, is the owner of
neighbouring commercial premises at 1 […] and 1[ …] N[…] Streets,
E[…] . It was the applicant in the main application which resulted in the
demolition order and opposes this application.
[5] The second respondent, Ekurhuleni Metropolitan Municipality, is the
local authority responsible for building control and planning approvals
within its area of jurisdiction. The property falls within its area of
jurisdiction. It, too, opposes the application.
[6] The third respondent, the Sheriff of the Court, Germiston South, has
abided the decision of this Court.
Application not ripe for hearing
[7] At the outset of the hearing, the applicants ’ counsel contended that the
matter is not ripe for hearing because the applicants have applied for
rezoning of the property , which application is pending. Effectively, the
applicants sought a postponement of the matter without a
postponement application.
[8] The basis for counsel’s contentions are averments contained in an
affidavit deposed to by an unidentified person (referred to in the
affidavit as ‘We, Ripinda Development Planners ’), dated 20 January
2026 and uploaded onto CaseLines on 29 January 2026.
[9] The Court was not approached for leave to upload this affidavit prior to
doing so, contrary to this C ourt’s prior directives read with the Gauteng
Division’s Directive 1 of 2024.
[10] There is, furthermore, no application for leave to admit this affidavit out
of time and sequence.
4
[11] Accordingly, I will not admit this affidavit and there is, therefore, no
basis for the contention that the matter is not ripe for hearing. In any
event, even if these facts had been before me, there is still no basis for
the contention that the matter is not ripe for hearing. The papers
constitute a founding affidavit, answering affidavits by the first and
second respondents, replying affidavits in response to each answering
affidavit, practice notes and heads of argument from all the parties.
The applicants seek a stay pending the outcome of a rezoning
application with the second respondent.
The Factual Matrix
[12] The facts are taken from the founding affidavit in the application for the
demolition order (‘the first application’), which the applicants have not
refuted in this application as well as the affidavits in this application.
[13] Whilst many of the allegations in the respondents’ affidavit are hearsay,
I have decided to admit these allegations in the interest of justice in
terms of section 3 of the Law of Evidence Amendment Act
2 for the
following reasons:
a. the applicants do not dispute the allegations and do not object
to this evidence;
b. the allegations in the first respondent’s affidavit are based on
information obtained from the second respondent which is
consistent with what is alleged by the second respondent;
c. the second respondent has no interest in misleading the court;
d. the second respondent’s deponent has obtained many of the
facts from the second applicant’s records which are recorded
as a matter of course and not for the purposes of this litigation;
e. the deponent to the second respondent’s affidavit has attached
what appear to be contemporaneous notes and notices which
2 45 of 1988.
5
support the allegations even if these notes have not been
authenticated. The messiness of the notes suggests that they
are genuine;
f. the allegations are made for the purpose of updating the court
on the allegations made in the founding affidavit in this
application; and
g. most of the allegations are consistent with the allegations
contained in the replying affidavits.
[14] The material uncontested facts may be summarised as follows.
[15] The applicants purchased the property on or around 20 May 2020.
[16] In or around 2021, the applicants built approximately thirty residential
units on the property.
[17] On 25 November 2021, the second respondent issued a formal
contravention notice to the first applicant. The notice recorded that an
inspection conducted that day revealed that the applicant was
‘proceeding/erecting a building’ without approval in contravention of
section 4(1) read with section 4(4) of the National Building Regulation
and Building Standards Act .
3 The applicant was directed to cease
building operations and to submit building plans for approval within 30
days. It is worth noting that the notice was served personally on the
first applicant at the property.
[18] On 17 or 18 February 2022, some three months after the expiry of the
thirty-day period referred to in the contravention notice , the applicants
submitted building plans to the second respondent.
[19] In or around March 2022, the application for approval was refused. The
refusal was based on several fundamental non- compliances, which
included:
3 103 of 1977.
6
a. the site plan lacked a detailed plan for the main house;
b. fire walls were required between the units and fire safety walls
for building on the boundary;
c. wall-to-wall building was prohibited as a 2- metre servitude was
required; and
d. critically, a site inspection conducted on 22 March 2022
revealed that the structures had been erected over and had
encroached upon the sewer line. The building inspector noted
that this encroachment made demolition necessary.
[20] In addition, on 1 June 2022, the City Planning Division commented that
‘[t]he zoning does not allow dwelling units/boarding rooms ’. A pre-
consultation for rezoning of the erf must first be conducted with the
Municipal Town Planner by a registered town planning consultant prior
to submitting any application. A pre-consultation form could be obtained
from the reception desk. This was communicated to the applicants.
[21] On 16 September 2022, the first respondent launched the first
application. The founding affidavit alleged that the applicants resided at
1[…] K[…] Street, E[… ], Germiston.
[22] Service of the notice of motion was attempted at the property, 1 […]
K[…] Street, E […] on 6 October 2022. The S heriff's return recorded
that the premises were kept locked, that two attempts to find the
addressee yielded ‘nobody home’, and that the notice was thereafter
affixed to the main entrance of the residence of the first applicant . The
return further recorded that the property contained ‘ 30 rooms and
occupiers’ and that the occupiers ‘refused to take the document ’.
There is no return of service for the second applicant.
[23] A further Sheriff’s return records that the notice of set down was served
on Miss Makhubela, caretaker, apparently a responsible person and
apparently not less than 16 years of age, in control of and at the place
7
of residence of the first applicant in his temporary absence. There is no
similar return for the second applicant.
[24] On 4 May 2023, this Court (per Dippenaar J) granted judgment against
the applicants on an unopposed basis in their absence. The learned
Judge ordered the demolition of the unlawful structures, with costs.
[25] The applicants claim that they only became aware of this order on 25
January 2024, when they were personally served with a copy thereof.
The applicants do not indicate how this occurred and where such
service occurred.
[26] On 13 March 2024, some 34 court days after allegedly acquiring
knowledge of the judgment, the applicants launched the present
rescission application.
The Applicable Legal Principles
[27] The applicants invoke three alternative remedies: rescission under rule
31(2)(b), rescission under r ule 42(1)(a), and rescission under the
common law.
[28] Only once an applicant has met the requirements for rescission, can a
court exercise a discretion to rescind its order. The discretion must be
exercised judicially.
4
Rule 31(2)(b)
[29] Rule 31(2) provides as follows:
‘(a) Whenever in an action the claim or, if there is more than one claim,
any of the claims is not for a debt or liquidated demand and a
defendant is in default of delivery of notice of intention to defend or of
a plea, the plaintiff may set the action down as provided in subrule
(4) for default judgment and the court may, after hearing evidence,
4 Zuma v Secretary of the Judicial Commission of Inquiry into Allegations of State Capture,
Corruption and Fraud in the Public Sector Including Organs of State and others (Council for the
Advancement of the South African Constitution and another as amici curiae) [2021] ZACC 28;
2021 (11) BCLR 1263 (CC) at [53].
8
grant judgment against the defendant or make such order as it
deems fit.
(b) A defendant may within 20 days after acquiring knowledge of such
judgment apply to court upon notice to the plaintiff to set aside such
judgment and the court may, upon good cause shown, set aside the
default judgment on such terms as it deems fit.
’
Rule 42(1)(a)
[30] Rule 42(1)(a) provides that a court may rescind or vary ‘an order or
judgment erroneously sought or erroneously granted in the absence of
any party affected thereby’.
[31] A litigant who wants to invoke rule 42(1)(a) must show that the order
sought to be rescinded was granted in his or her absence and that it
was erroneously granted or sought.
5
[32] The first ground exists to protect litigants whose presence was
precluded, not those who chose to be absent. 6
[33] Where notice of proceedings is required and judgment is granted
against such a party in his absence without notice of the proceedings
having been given to him, such judgment is granted erroneously.
7
Common Law Rescission
[34] The common law test for rescission of a default judgment is well
established. An applicant must show ‘good cause’ or ‘sufficient cause’,
which comprises two essential elements:
a. a reasonable and acceptable explanation for the default; and
5 Zuma (supra) at [54].
6 Zuma (supra) at [56].
7 Lodhi 2 Properties Investments CC and Another v Bondev Developments (Pty) Ltd [2007] ZASCA
85; 2007 (6) SA 87 (SCA) at [24].
9
b. a bona fide defence which, prima facie, carries some prospect
of success.8
The Application for a Stay of Execution
[35] The court may exercise its discretion in terms of r ule 45A, the common
law and/or section 173 of the Constitution to suspend the operation and
execution of any order in the interests of justice.9
[36] This Court has found in applications of this type that relevant
circumstances which will be considered in order to come to a just
decision include:
a. the nature and extent of the deviation from the law;
b. the reasons for such deviation with specific reference to the
culpability of the party seeking the stay;
c. the steps taken by the party s eeking demolition in relation to
stopping the irregular building from progressing which has been
reached;
d. the strength of the prospects of the regularisation of the
unlawful position;
e. the time it will take to regularise the position;
f. the effect of the order on the parties personally; and
g. the general interests of the community.
10
Analysis
Rule 31
8 Zuma (supra) at [71].
9 Van Rensburg and another NNO v Naidoo and others NNO: Naidoo and others NNO v Van
Rensburg NO and others [2010] ZASCA 68; 2011 (4) SA 149 (SCA) at [51]. See also Chief Lesapo
v North West Agriculture Bank [1999] ZACC 16; 2000 (1) SA 409 (CC) ; 1999 (12) BCLR 1420 at
[13].
10 Ten Napel v Ekurhuleni Metropolitan Municipality [2021] ZAGPJHC 566 at [21].
10
[37] Given the wording of rule 31, I raised with counsel whether the rule was
applicable.
[38] Both the applicants ’ counsel and the first respondent’s counsel
indicated that r ule 31 applied because the order was granted in the
absence of the applicants. The second respondent’s counsel , in
contrast, submitted that rule 31 is inapplicable, referring to
Makhomisani,11 Kataka12 and, particularly to ADB Financial Services 13
where the court found that r ule 31(2)(a) and (b) apply to a default
judgment granted in an action.
[39] I agree with counsel for the second respondent and with these
judgments which indicate that r ule 31(2)(b) is not applicable to
judgments which are not granted in terms of rule 31(2)(a).14
[40] In using the phrase ‘such judgment’ , r ule 31(2)(b) is referring to
judgments granted in terms of r ule 31(2)(a). Accordingly, rule 31(2)(b)
must be interpreted as only permitting a defendant to set aside a
judgment obtained in terms of r ule 31(2)(a). This subrule does not
apply to a judgment not granted in terms of rule 31(2)(a). The subrule
does not apply to judgment obtained on an unopposed basis in motion
proceedings.
[41] As indicated above, the order sought to be rescinded was granted in
motion proceedings on an unopposed basis in the absence of the
applicants. It was not granted in terms of rule 31(2)(a).
[42] This rule is accordingly inapplicable, and the relief sought cannot be
granted in terms of this rule.
11 Makhomisani N.O. and Another v SB Guarantee Company (RF) (Pty) Ltd [2022] ZAGPJHC 179 at
[55].
12 Kataka v Standard Bank [2025] ZAGPPHC 512 at [39].
13 ADB Financial Services (Pty) Ltd and another v Mercantile Bank Limited and another [2023]
ZAGPPHC 67 at [20].
14 See also De Wet and Others v Western Bank Ltd 1979 (2) SA 1031 (A) at 1035F and 1038A.
11
[43] Condonation was sought for failing to bring this application within the
time set by rule 31(2)(b). Given the inapplicability of r ule 31, I decline
to make a decision in this regard.
Rule 42
[44] It is common cause that the order sought to be rescinded was granted
in the absence of the applicants.
[45] The first question to be determined is whether the applicants have
established that they did not have prior notice of the first application
and whose presence was thereby precluded , or whether they received
timeous notice and chose not to oppose the application or be present in
court to oppose the application.
[46] The first applicant alleges that the applicants only became aware of the
application when served with a court order on 25 January 2024. The
first applicant also claims that Miss Makhubela did not bring the notice
of set down to the applicant’s attention nor was she employed as the
applicants’ caretaker. Although this is not properly disputed by the
respondents, uncontradicted evidence is not necessarily acceptable or
sufficient to discharge an onus.
15
[47] The applicants do not indicate how the order was served upon them.
The first applicant attempts to support the cogency of these allegations
by attempting to give the impression that the applicants did not reside
at the property at the relevant time. The confirmatory affidavit deposed
to by the second applicant which merely states that she confirms the
contents of the founding affidavit insofar as it relates to her , does not
assist in this regard at all
16 and affidavits in this form have been
described as a slovenly practice.17
15 McDonald v Young [2011] ZASCA 31; 2012 (3) SA 1 (SCA) at [6].
16 See in this regard Drift Supersand (Pty) Ltd v Mogale City Local Municipality and Another [2017]
ZASCA 118; [2017] 4 All SA 624 (SCA) at [31].
17 See in this regard Eskom Holdings SOC Ltd v Masinda [2019] ZASCA 98; 2019 (5) SA 386 (SCA)
at [3].
12
[48] In the founding affidavit in this application, the first applicant alleges
that he ‘presently’ resides at 1 […] F[…] Street, K […] , Boksburg. He
also alleges that the second applicant resides at this address. The first
respondent’s answering affidavit does not raise a genuine dispute in
this regard. The second respondent’s answering affidavit admits or
does not dispute these allegations.
[49] The first applicant does not allege when he and the second applicant
started residing at this address.
[50] The first applicant alleges that ‘ the address at which the application
was served is and was not the primary residence of the Applicants’.
[51] It is clear that the impression that is sought to be created by this
allegation is that the applicants did not reside at the property when the
application was served. However, that is not what is stated. The first
applicant does not expressly state that at the time when the application
was served, the applicants were not residing at the property.
[52] The absence of such a clear allegation is compounded by the reference
to a ‘primary’ residence, suggesting that the applicants have more than
one residence, thus not excluding the possibility that the applicants
were living at the property when service of the application was effected.
[53] The applicants do not indicate where they resided when the notice of
set down was served. The S heriff’s return does not state that Miss
Makhubela informed the S heriff that the applicants did not live there
and/or that she would not be able to give the notice to them.
[54] As stated above, the contravention notice was served personally on the
first applicant at the property on 25 November 2021.
[55] This failure to explain clearly and fully how the applicants became
aware of the application is exacerbated by the first applicant’s
allegation that ‘the first opportunity we had to consider the matter was
September 2022’.
13
[56] The first respondent highlighted this discrepancy in its answering
affidavit. In reply, the first applicant merely reiterates that the
applicants became aware of the main application on 25 January 2024
and that in order to consider the matter during September 2022, the
main application would necessarily have had to have been served on
them. This is the first respondent’s point and does not clarify the
discrepancy.
[57] Accordingly, the applicants have not discharged the onus which rests
upon them to establish that they did not receive due notice of the
application.
[58] As such, the applicants have not established that the order sought to
be rescinded was granted in their absence. This would have the result
that the application could not be granted in terms of rule 42.
[59] In the event that I am wrong in this regard, I consider whether the order
was erroneously granted.
[60] The applicants contend that the judgment was erroneously granted
because they were not properly served because the property is and
was not their primary residence.
[61] The first respondent contends in the papers that service was good
because it occurred at a property owned by the applicants.
[62] Rule 4(1)(a)(i) provides for personal service. Rule 4(1)(a)(ii) and (iii)
provide for delivery of process at the place of residence or business or
employment of the person to be served, to a person, apparently in
charge of the premises or in authority over the person sought to be
served, respectively, and apparently not less than 16 years of age.
[63] Only rule 4(1)(iv), which provides for service on a person at his or her
domicilium citandi , and rule 4(1)(v) , which provides for service on a
corporation or company , permits affixing the process in limited
circumstances.
14
[64] Rule 4 does not provide for affixing of process at a property owned by
the person to be served.
[65] Accordingly, service by affixing at the property because it is owned by
the applicants does not constitute good service.
[66] In any event, even if the applicants resided at the property, service was
not effected in terms of r ule 4 as this was not service at a domicilium
citandi or on a corporation or company and affixing is not otherwise
permitted.
[67] Furthermore, there is no record of service on the second applicant.
[68] As such, on the record, the application had not been served on the
applicants and the respondents were not entitled to the order.
Accordingly, the order was erroneously granted.
[69] In the event that I am wrong about whether the applicants have
discharged the onus of establishing that they did not have prior notice
of the application and that they were precluded from appearing, then,
accordingly, the two requirements in terms of r ule 42(1)(a) have been
met, and this court’s discretion arises. Only if it is in the interests of
justice should the court exercise its discretion in favour of rescission.
18
[70] The applicants in this matter do not allege that the buildings are lawful
or that they were built pursuant to approved building plans. Nor do they
dispute the allegations in the founding affidavit in the first application
that the buildings have caused sewage and drainage water to flow into
the first respondent’s property, resulting in the collapse of the boundary
wall and ongoing damage to the re- built wall. The first respondent
alleges in this application that the harm articulated in the first
application continues. Sewage continues to seep through the boundary
wall and onto the first respondent’s premises. The applicants do not
18 Zuma (supra) n 3 at [50].
15
deny this. The applicants’ counsel conceded that there was no defence
to the first application.
[71] I have not considered whether the applicants would have applied to
stay the first application pending a rezoning application as similar relief
must be determined in this application.
[72] In the circumstances, insofar as I may exercise a discretion, it would
not be in the interests of justice to exercise my discretion in favour of
the applicants.
[73] The application based on rule 42 cannot, therefore, succeed.
Common law
[74] As is clear from what is stated above, the applicants have failed to
discharge the onus which rests upon them to furnish a credible and
thus reasonable and acceptable explanation for their default.
[75] Even if I am wrong in this regard, the applicants have not established a
defence which, prima facie, carries some prospect of success. In fact,
the applicants’ counsel conceded that there is no defence.
[76] Accordingly, the application for rescission based on the common law
must fail.
Stay of the demolition order
[77] The applicants seek an order staying the order for demolition pending
the outcome of a rezoning application.
[78] The founding papers do not establish any basis for a stay.
[79] The first applicant alleges that on or around February 2020 (before the
applicants allegedly owned the property) , he approached an architect
who drew plans and advised him to start building. No plans are
attached in support of the averment. In addition, the architect’s advice
is, on the face of it, reckless advice and appears, for this reason, to be
16
improbable. The architect does not make a confirmatory affidavit. It is
alleged that the architect has passed away. This is inadmissible
hearsay. For all the aforegoing, I do not accept that the applicants
proceeded on the advice of the architect.
[80] The founding papers allege that the first applicant appointed Ripinda
Development Planning Consultants to lodge a rezoning application and
alleges that this was done but does not indicate when this was done.
There is no evidence that a rezoning application was submitted. The
second respondent denies that a rezoning application was ever
submitted with the consequence that the building plans expired. The
first applicant admits , in a replying affidavit, that there was
communication regarding the expiration of the plans. The first
applicant’s allegations are consistent with the second respondent’s
allegations. The first respondent then alleges , in his replying affidavit,
that following expiration of the plans , another application was done and
refers to annexure ‘AJS9’ which is attached to the replying affidavit in
response to the first respondent’s answering affidavit. No particulars
are given as to when the application was made or who made the
application.
[81] AJS9 is not signed by the applicants or on their behalf nor have the
particulars of the applicants been completed. AJS9 is the pre -
consultation form which records the pre- consultations which the
applicants’ town planner must have with various officials of the second
respondent prior to a rezoning application. AJS9 records one
consultation which occurred on 13 February 2024. The applicant does
not explain why this document was not referred to in the founding
affidavit deposed to on 18 March 2024. Accordingly, I will not have
regard to these allegations since the basis for the relief sought must be
contained in the founding affidavit.
19
19 A point made by the first respondent’s counsel, referring to Director of Hospital Services v Mistry
1979 (1) SA 626 (A) at 635H-636A.
17
[82] The applicants’ heads of argument appear to establish the basis for the
stay by submitting that the applicants have:
a. established a prima facie right, namely their defences which
have strong prospects of success;
b. a well- grounded apprehension of irreparable harm if the
demolition proceeds. This contention was tempered by the
submission that the applicants will be severely prejudiced in
that they will be deprived of the opportunity to have the already
submitted rezoning application determined; and
c. they have no other alternative satisfactory remedy.
[83] The first respondent’s counsel, referring to Erasmus,20 submitted that
the applicants must set out certain facts which may be similar to the
factors considered by a court when determining whether interim relief
should be granted, such as a clear or present right, a well -grounded
apprehension of irreparable harm, the balance of convenience and
whether another satisfactory remedy exists.
[84] The first respondent’s counsel also submitted, referring to Soja ,
21 that
the applicants must also show what injustice would be suffered if the
stay is not granted.
[85] The first respondent’s counsel submitted further that the applicants had
failed to establish any of the aforesaid requirements. The applicants
have failed to obtain approval for their building plans and rezoning and
ask the C ourt to condone their non- compliant conduct and order that
the structures remain in place until some unforeseen date whilst the
first respondent stands to suffer irreplaceable loss and prejudice.
[86] There is no answer to these submissions.
20 Erasmus v Sentraalwes Kooperasie [1997] 4 All SA 303 (O).
21 Soja (Pty) Ltd v Tuckers Land Development Corporation (Pty) Ltd 1981 (2) SA 407 (W) at 411E-F.
18
[87] However, I do not think that the requirements for interim relief are
appropriate in this context. The factors indicated above will, instead, be
considered.
[88] In my view, the deviation from the law is quite substantial. At least 30
units were built on the property without approved building plans.
Subsequently, the building plans were not approved for a number of
reasons including that the property had to be rezoned. On the papers,
no application for rezoning has been made.
[89] The applicants’ explanation is that an architect told them that they could
proceed prior to the building plans being approved. This allegation
appears on the face of it to be inherently improbable. Furthermore,
nowhere do the applicants allege that they were unaware of what was
required in order to be able to build lawfully.
[90] What is plain is that the applicants have not acted with alacrity in order
to regularise their position once the unlawfulness of the construction of
the buildings was made clear to them.
[91] The contravention notice served on the first applicant on 25 November
2021 indicated that buildings had been erected on the property in
contravention of section 4(1) read with section 4( 4) of the National
Building Regulation and Building Standards Act as no prior written
approval for the erection of such buildings had been obtained from the
second respondent. The applicants were directed to submit and have
building plans approved within 30 days from the date of receipt of the
notice, i.e. on or around 5 January 2022.
[92] The applicants only lodged their application for approval of their
building plans on 17/18 February 2022.
[93] The application for approval of the building plans was refused on or
about 30 March 2022. The applicants were also informed that the
property had to be rezoned before the building plans could be
approved.
19
[94] The unlawful buildings have cause sewage and drain water to flow onto
the first respondent’s property, a situation which has not yet abated. In
addition to the unhealthy environment this has created, this has
resulted in the collapse of the boundary wall between the first
respondent’s property and the applicant’s property and damage to the
replacement boundary wall.
[95] As a result of this harm, the first respondent complained to the
applicants and the second respondent on various occasions without
success and eventually brought the first application and obtained an
order for demolition on 4 May 2023.
[96] The founding affidavit in this application was deposed to on 18 March
2024. Nothing in that affidavit, read in the context of the answering and
replying affidavits establishes that any steps are pending to regularise
the unlawfulness of the erection of the buildings.
[97] The relief sought is a stay pending the outcome of the rezoning
application. The founding papers do not establish that a rezoning
application has in fact been made. In any event, even if an application
were to be made and ultimately succeed, th at would not cure the
unlawfulness complained of, as duly approved building plans in respect
of these buildings would still be required.
[98] The applicants do not indicate how they have remedied the flaws
identified by the second respondent in refusing to approve the relevant
building plans. Furthermore, it appears that the applicants’ building
plans can never be approved as there has been building onto the
boundary wall , which is prohibited and certain structures have
encroached on the sewer line and must be demolished.
[99] Because the founding affidavit does not deal with facts in support of the
stay, there are no allegations relating to the prejudice that the
applicants may suffer.
20
[100] Accordingly, taking the above factors into consideration, it is not, in my
view, in the interests of justice to stay the demolition and I cannot,
therefore, exercise my discretion in the applicants’ favour.
Costs
[101] The first respondent seeks a special costs order on the attorney and
client scale .22 Its counsel contends that the applications for both the
rescission and the stay were stillborn with no prospects of success and
that this application is merely a dilatory tactic.
[102] The second respondent seeks a dismissal of the application and costs.
[103] An award of costs on the attorney and client scale is an extraordinary
remedy, reserved for cases of misconduct, dishonesty, vexatious
conduct, or where a party's conduct has been ‘ extraordinary and
deserving of censure’.
[104] In my view, this application, which has been found to be baseless on all
the grounds raised, save possibly in regard to r ule 42, is, at the very
least, vexatious in the extended meaning of the term as found in
Johannesburg City Council
23 in that it has resulted in unnecessary
trouble and expense which the respondents ought not to bear.
[105] Although the second respondent did not seek a special costs order,
given the reasons above, such an order is justified in favour of the
second respondent as well.
Order
[106] In the result, I make the following order:
22 Although an order for counsel’s fees on scale C was sought, this is only relevant to costs orders on
a party and party scale.
23 Johannesburg City Council v Television and Electrical Distributors [1996] ZASCA 97; 1997 (1) SA
157 (A) at 177D-E.
21
1. The application to rescind and set aside the order granted on 4
May 2023 under the above case number is dismissed.
2. The application to stay the order of demolition granted on 4 May
2023 is dismissed.
3. The applicants are ordered, jointly and severally, the one paying,
the other to be absolved, to pay both respondents’ costs on the
attorney and client scale, such costs to include the costs of
counsel.
___________________________
F SOUTHWOOD
ACTING JUDGE OF THE HIGH COURT
GAUTENG DIVISION, JOHANNESBURG
Date of hearing: 2 February 2026
Date of judgment: 24 February 2026
For the Applicants: Ms Terblanche
instructed by: Okafor MA Attorneys Inc
For the First Respondent: Mr DJ Coetzee
instructed by: Shaban Clark Coetzee Attorneys
For the Second Respondent: Ms T Pooe
Instructed by: Seanego Attorneys Inc.
22