SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy

IN THE HIGH COURT OF SOUTH AFRICA
KWAZULI NATAL DIVISION, PIETERMARITZBURG

CASE NO: 13720/2024P & 14437/24P

In the matter between:
AFROPULSE 477 (PTY) LTD APPLICANT

and

THEODORE WILHELM VAN DER HEEVER N.O FIRST RESPONDENT
TANIA OOSTHUIZEN N.O SECOND RESPONDENT
PETER MASKELL THIRD RESPONDENT
THE REGIONALN COURT MAGISTRATE FOR THE
DISTRICT OF KWADUKUZA N.O – MS G PIKELELI FOURTH RESPONDENT
MINISTER OF POLICE FIFTH RESPONDENT
SASOL OIL (PTY) LTD SIXTH RESPONDENT



Coram: Matlamela AJ
Heard: 31 October 2025
Delivered: 27 February 2026


ORDER

2

The following order is granted:
1. In the application to set aside the search warrant (case no 14437/24P):
1.1 The decision by the fourth respondent to issue and authorise the document
titled: ‘Warrant – in terms of Section 69 of Act 24 of 1936 as read with Section 21 of
Act 51 of 1977: To search for and take possession of property in the liquidated estate
of Sherpa Trade and Investments 71 (Pty) Ltd (in liquidation)’ is reviewed and set
aside.
1.2 The execution of the warrant is reviewed and set aside.
1.3 The first and second respondents are directed to forthwith restore possession
of the business premises situated at Erf 1[...], corner of Green and White Street s,
Isithebe, Kwa-Zulu Natal to the applicant, which premises comprises a fore court and
convenience store known as Sasol Isithebe and Sasol Delight , respectively with
immediate effect.
1.4 In the event of the first and second respondents not restoring possession as
aforesaid immediately upon service on them /their attorneys of this order, then the
sheriff is authorised to do all that is necessary and incidental to restoring possession
of the abovementioned business premises, stock and contents therein to the
applicant, including using the services of a locksmith to cut off /otherwise remove the
chains and locks affixed to the doors, gates and the like at such premises.
1.5 The first and second respondents, jointly and severally, the one paying the
other to be absolved, to pay the costs of the application on scale C.
1.6 As between the applicant and six respondent, each party is to pay its own
costs.
2. In the counterapplication by the first and second respondent ( case no
14437/24P):
2.1 The first and second respondents are authorised in terms of s 386 (5), as read
with s 386 (4)(a) of the Companies Act 61 of 1973, to bring this counterapplication
and to oppose the relief sought by the applicant.
2.2 The applicant, together with those persons or parties acting under or through

2.2 The applicant, together with those persons or parties acting under or through
it, are ejected from the property, more fully descried as Portion of ERF 1[...], I[...] I[...]
Estate, comprising approximately 9 000 square meters and situated at the corner of
White and Green Streets, Mandeni, KwaZulu-Natal.
2.3 Should the applicant and those persons or parties referred to in the above
paragraphs 2.2 hereof, fail to vacate the said premises by 30 March 2026, the sheriff

3

of the high court with jurisdiction is directed to eject the applicant and the further
persons or parties from the premises by preventing access thereto and by removing
the applicant’s movable property from the premises.
2.4 The applicant is directed to pay the first and second respondents’ costs of the
counterapplication on scale C.
2.5 In respect of the urgent interdict application, it is ordered that each party is to
pay its own costs.
3. In the counterapplication by the sixth respondent (case no 14437/24P):
3.1 The applicant and all those occupying the property through or under the
applicant are ejected from the immovable property , being Portion of ERF 1[...], I[...]
I[...] Estate, comprising approximately 9 000 square meters and situated at the
corner of White and Green Streets, Mandeni, KwaZulu-Natal (the premises).
3.2 Should the applicant and all those occupying the property through or under
the applicant fail to vacate the said premises by 30 March 2026, the sheriff of the
high court with jurisdiction is directed to eject the applicant and the further persons or
parties from the premises by preventing access thereto and by removing the
applicant’s movable property from the premises.
3.3 The applicant and/or their privies are interdicted and restrained from:
(i) conducting any activities associated with a service and filling station as
contemplated in terms of the franchise agreement between the sixth
respondent and the applicant from the property known as Portion of ERF
1[...], I[...] I[...] Estate, comprising approximately 9 000 square meters and
situate at the corner of White and Green Streets, Mandeni, Kwazulu -Natal
(the premises) by utilising and/or be associated with the Sasol brand, know
how, marketing and comprehensive blueprint for the operation of a
convenience center and related businesses, equipment and programmes,
licences and/or trademarks and tradenames and/or intellectual property.

licences and/or trademarks and tradenames and/or intellectual property.
(ii) Sourcing and/or storing and/or distributing any third -party automotive fuel,
automotive products, emission fluids and related products at or from the
premises, which products were sourced from parties than the applicant.
3.4 The applicant is ordered to authori se the sixth respondent to gain access to
the premisses in order to effect an onsite disablement, which includes manual
locking, where required, of the sixth respondent’s system and equipment on site.

4

3.5 The applicant is ordered to pay the six respondent’s costs of this counter -
application, such costs to be taxed on the attorney and client scale.
4. In the application to confirm the rule nisi (case no 13720/24P):
4.1 The rule nisi, together with its interim relief issued on 6 September 2024 by
Pitman AJ, is discharged.
4.2 The applicant shall pay the sixth respondent’s costs of the rule nisi application
on scale C.
4.3 The applicant and the first and second respondents are each to pay their own
costs in the rule nisi application.
5. In the condonation application (case no 14437/24P):
5.1 The late delivery of the applicant’s heads of arguments and practice note is
condone.
5.2 The applicant is ordered to pay the wasted costs occasioned by the
condonation application.


JUDGMENT

Matlamela AJ

Introduction

[1] On 30 October 2025, five applications came before me. The first application is
by Afropulse 477 (Pty) Ltd (the applicant) against all respondents, except the third
respondent and is for the setting aside of a warrant (the application to set aside the
warrant).

[2] The second application is an unopposed application by the applicant for the
late filling of its heads of argument.

[3] The third application, which was brought as a counterapplication, ( ‘the ejectment
application’) is by first and second respondents against the applicant for the ejectment of the
applicant (the ejectment application).

5

[4] The fourth application, which was also brought as a counterapplication (‘the
ejectment application’) is by the sixth respondent against the applicant for its
ejectment. All these applications were brought under case number 14437/24P.

[5] The fifth and final application deals with the confirmation of the rule nisi dated
6 September 202 5 which had been obtained by the applicant . This application was
brought under case number 13720/24P .

[6] All five applications were placed before me and argued simultaneously. I will
deal with all f ive applications in one judgment. Save for matters that are common to
all four applications, I shall structure this judgment accordingly and consider each
application separately.

[7] For purposes of this judgment the rule nisi, in short, reads as follows:
(a) By consent, Sasol Oil (Pty) Ltd has been joined.
(b) Paragraph 2.2 of the rule nisi provide d that that pending the outcome of
proceedings to be instituted within seven days for the warrant to search for and take
possession of the property issued by the Regional Court for the District of
KwaDukuza on 27 August 2024 to be set aside, the respondents be and are hereby
ordered to forthwith restore possession of the business premises situated at Erf 1[...],
corner of Green and White Streets, Isithebe, Kwazulu -Natal to the applicant, which
premises comprises a forecourt and convenience store known as Sasol Isithebe and
Sasol Delight, respectively.

[8] Following the above order, an application for setting aside the warrant was
instituted on 18 September 2024.

[9] What caused these applications will be dealt with later.

[10] The applicant under case number 13720/2024P is Afropulse 477 (Pty) Ltd, a
limited liability company , duly registered and incorporated in accordance with the
company laws of the Republic of South Africa and which has its principal place of
business at Erf 4[...] , corner Green and White Streets, Isithebe, KwaZulu-Natal.

6

[11] The first respondent is Theodor Wilhem van der Heever NO, a joint
provisional liquidator of Sherpa Trade and Investments 71 (Pty) Ltd, employed by D
& T Trust (Pty) Ltd, 426/428 Ontdekkers Road, Florida Park, Gauteng.

[12] The second respondent is Tania Oosthuizen N O, a joint provisional liquidator
of Sherpa Trade and Investments 71 (Pty) Ltd, employed by D & T Trust (Pty) Ltd,
426/428 Ontdekkers Road, Florida Park, Gauteng.

[13] The third respondent is Peter Maskell, an auctioneer, who engages in
business under the style of Peter Maskell Auctioneers at 4[...] O[...] Road, Willowton,
Pietermaritzburg, KwaZulu-Natal.

[14] The fourth respondent is the Regional Court Magistrate for the District of
KwaDukuza.

[15] The fifth respondent is the Minister of Police.

[16] On 27 August 2024, the first and second respondents applied for a search
warrant in terms of s 69 of Insolvency Act 24 of 1936 (the Insolvency Act), which the
fourth respondent granted and issued.

[17] The fifth respondent’s members or sheriff of the court entered and searched
the applicant’s premises and took into their possession property belonging to Sherpa
Trade and Investments 71 (Pty) Ltd (Sherpa Trade) and property belonging to Sasol
Oil (Pty) Ltd (the sixth respondent).

[18] The applicant’s premises is described as Portion of Erf 1[...], corner of White
and Green Streets, Isithebe, Kwa Zulu-Natal (the property), and is owned by the
Ithala Development and Finance Corporation (Ithala).

[19] Ithala, in terms of a written agreement, leased the property to Sherpa Trade.

[20] Sherpa Trade further sub-let the property to the sixth respondent in terms of a
notarial written agreement of lease duly executed on 19 April 2012 (the sub -lease).

7

The sixth respondent leased the property from Sherpa Trade for the sole purpose of
establishing and operating a Sasol branded service and filling station.

[21] Finally, the sixth respondent further sub -let the property to the applicant in
terms of a written franchise agreement as a retailer to operate the intended Sasol
branded service and filling station.

[22] On 12 February 2024, Sherpa Trade was placed in final liquidation by an
order of court and the first and second respondents were subsequently appointed as
the liquidators of Sherpa Trade on 9 January 2024.

[23] The first and second respondents brought an application in terms of ss 69(2)
and (3) of the Insolvency Act , authorising and directing the South African Police
Service (SAPS) in terms of s 69 of the Insolvency Act, read together with s 21 of the
Criminal Procedure Act 51 of 1977 (the CPA), to:
(a) Enter and search the property.
(b) To take into their possession the movable assets referred to in the warrant ,
which are found at the property.
(c) To deliver possession of the movable assets to the first and second
respondents.

[24] In their affidavit for the issuing of the warrant , the first and second
respondents alleged that Mr Amod, who is the sole director and shareholder of the
applicant, did not honour his obligations to the sixth respondent, which resulted in it
terminating the retail agreement with the applicant and the lease agreement with
Sherpa Trade.

[25] They further indicated that after termination of the agreements , Mr Amod
caused the business of the applicant to continue operating whilst no Sasol fuel has
been supplied.

[26] The sixth respondent installed all movable assets, including pumps, tanks,
convenience store equipment and shopfitting. In terms of the lease agreement, the
sixth respondent remained the owner of th e installed equipment. The sixth

8

respondent had, however, demanded that this equipment to be handed over by the
applicant’s liquidators.

[27] In that application, the first and second respondents alleged that they have a
real and substantial interest in taking possession of the movable assets , except
stock which was not supplied by the sixth respondent, situated on the property.

[28] The stock which was not supplied by the sixth respondent was not mentioned.

[29] The first and second respondents alleged that it would be for the benefit of the
creditors that the y immediately took possession of the assets , and that the sixth
respondent was suffering untold damages because persons unknown are operating
from the property.

[30] The first and second respondents only had a letter from the sixth respondent
dated 20 September 2023 to Sherpa Trade which confirmed the termination of the
agreement between it and the applicant. In the letter, the sixth respondent did not
indicate whether it suffered substantial damages because of the continuation of the
business, nor was there a confirmatory affidavit to such allegation.

[31] The fourth respondent issued a warrant in terms of s 69 of the Insolvency Act,
as read with s 21 of the CPA. Paragraph 2 of the warrant read as follows:
‘You are hereby authorised and directed to enter and search during the day or night the
premises, and to take the abovementioned property into your possession if located, and then
and there to hand same over to Theodor Wilhelm Van Der Heever N.O and Tania
Oosthuizen N.O, in their personal capacities as duly appointed joint provisional liquidators of
the company in liquidation, or to their authorised agents.’

[32] It is this search warrant which caused the urgent application date d 6
September 2024 to be brought by the applicant. Pitman AJ issued a rule nisi that
pending the outcome of the proceedings to be instituted , within seven days , for the
search warrant issued by the fourth respondent on 27 August 2024 to be set aside,

search warrant issued by the fourth respondent on 27 August 2024 to be set aside,
the respondents were ordered to forthwith restore possession of the property.

[33] Following the rule nisi, the applicant issued an application on 18 September
2024 to set aside the search warrant authorised by the fourth respondent. In this

9

application, the parties were the same, except that Sasol Oil (Pty) Ltd was added as
the sixth respondent.
[34] The sixth respondent is a company with limited liability registered and
incorporated with the company laws of the Republic of South Africa and which has its
principal place of business at Sasol Place, 5[...] K[...] Street, Sandton,
Johannesburg, Gauteng.

[35] The application to set aside the warrant was opposed by the first, second and
sixth respondents. In addition to the opposition, the first and second respondents
and the sixth respondent brought counterapplications separately. I will deal with the
counter-applications later in the judgment.

Condonation application
[36] Before dealing with the application to set aside the warrant, a preliminary
issue needs to be dealt with. Due to a change of attorneys, the applicant only filed its
heads of argument after 13 October 2025, which was the date of filing heads of
argument.

[37] The applicant brought an application in terms of rule 27 of the Uniform Rules
of Court in which it seeks condonation for the late filing of its heads of argument and
practice note.

[38] This application was not opposed by the respondents.


[39] In Grootboom v National Prosecuting Authority and Another ,1 the following
was said:
‘It is now trite that condonation cannot be had for the mere asking. A party seeking
condonation must make out a case entitling it to the court's indulgence. It must show
sufficient cause. This requires a party to give a full explanation for the non -compliance with
the rules or court's directions. Of great significance, the explanation must be reasonable
enough to excuse the default’.


1 Grootboom v National Prosecuting Authority and Another [2013] ZACC 37; 2014 (2) SA 68 (CC)
para 23.

10

[40] I am satisfied that the factual background contained in the condonation
application is sufficient to grant such indulgence. The applicant undertook to pay the
wasted costs of occasioned by the condonation application.
Application to set aside the warrant

[41] This application is only opposed by the first and second respondent. The six
respondent does not oppose the setting aside of the warrant on the grounds that
Sasol has no interest in the said relief. In challenging the warrant, the applicant
argued that it was executed in such a manner that the applicant was affectively
evicted from the property.

[42] The applicant conten ded that the fourth respondent erred in authorising the
warrant as she violated the audi alteram partem rule as the applicant was not given
notice of the application nor was it given the right to be heard. This failure , in itself,
vitiates the proceedings and justifies the warrant being set aside.

[43] Section 69(2) of the Insolvency Act provides that if a trustee has a reason to
believe that any property, book or document is concealed or otherwise withheld from
him, he may apply to a magistrate having jurisdiction for a search warrant mentioned
in s 55(3).

[44] Section 69 provides as follows:
‘Trustee must take charge of property of estate
(1) A trustee shall, as soon as possible after his appointment, but not before the deputy -
sheriff has made the inventory referred to in subsection (1) of section nineteen, take into his
possession or under his control all movable property, books and documents belonging to the
estate of which he is trustee and shall furnish the Master with a valuation of such movable
property by an appraiser appointed under any law relating to the administration of the
estates of deceased persons or by a person approved of by the Master for the purpose.
(2) If the trustee has reason to believe that any such property, book or document is

(2) If the trustee has reason to believe that any such property, book or document is
concealed or otherwise unlawfully withheld from him, he may apply to the magistrate having
jurisdiction for a search warrant mentioned in subsection (3).
(3) If it appears to a magistrate to whom such application is made, from a statement
made upon oath, that there are reasonable grounds for suspecting that any property, book or
document belonging to an insolvent estate is concealed upon any person, or at any place or

11

upon or in any vehicle or vessel or receptacle of whatever nature, or is otherwise unlawfully
withheld from the trustee concerned, within the area of the magistrate's jurisdiction, he may
issue a warrant to search for and take possession of that property, book or document.
(4) Such a warrant shall be executed in a like manner as a warrant to search for stolen
property, and the person executing the warrant shall deliver any article seized thereunder to
the trustee.’

[45] It appears clearly from the papers that the fourth respondent was approached
in chambers with the application to authorise the issue of the warrant. No notice of
the application was given to any person.

[46] The provisions of s 69 provide that there be an application and a statement on
oath. The first and second respondents’ application was supported by an affidavit. It
this aspect, it complied with the requirements of the said provision.

[47] The fourth respondent authorised and issued a warrant with the following
heading:
‘WARRANT IN TERMS OF SEC 69 OF ACT 24 OF 1936 AS READ WITH SEC 21 OF ACT
51 OF 1977.
TO SEACH FOR AND TAKE POSSESSION OF PROPERTY IN THE LIQUIDATED ESTATE
OF: SHERPA TRADE AND INVEST 71 (PTY) LTD (IN LIQUIDATION)
MASTER’S REFERENCE NO: N347/22…’

[48] The warrant authorised and instructed the SAPS and the sheriff of the court to
enter and search during the day or night the premises and to take the
abovementioned property into their possession, if located, and then to hand same
over to the first and second respondents.

[49] The warrant was executed by one Sergeant Glover of the SAPS at the
property, which was a Sasol service station operated by the applicant, comprising a
forecourt (with fuel pumps) and a convenience store.

[50] According to the applicant, on Monday, 2 September 2024, at approximately
09h30, according to the manageress, Vasantha Harrysingh, who was at the

12

applicant’s premises when approximately ten men arrived at the service station and
some of them identified themselves. She was informed by one of the men that they
were there to close down the service station. She was handed a warrant and was
told that in terms of the warrant, they were entitled to close the service station down.

[51] The ten men proceeded to make an inventory of the assets. They blocked the
entrance to the side by initially parking vehicles across the entrance and later locked
the entrance gates by using a chain and locks. They also posted security guards at
the gate to prevent people, including customers, from entering the property.

[52] They locked the nozzle of each pump to its cradle, thereby making it
impossible to dispense fuel. The applicant’s staff members were instructed to leave
the property, which they did.

[53] These allegations contained in the founding affidavit were admitted by the first
and second respondents. The first and second respondents answered that the
provisional liquidators were acting within their rights when the warrant was executed
on 2 September 2024. The applicant was invited on more than one occasion to
remove its assets from the property.

[54] The sixth respondent did not answer to these allegations by the applicant,
despite filing a notice to oppose.

[55] In Naidoo and Others v Kalianjee NO and Others,2 the following was held: The
underlying purpose of a seizure under s 69 of the Act is fundamentally different. As stated by
Marais JA in Cooper:
“[11] It is to disable the insolvent and anyone else who may be physically in
possession of such assets from alienating or encumbering them to the prejudice of
creditors. That purpose is achieved by, inter alia, providing for the trustee to have
physical possession of them in the case of movables or, in the case of movables
under attachment or immovables, by having the relevant functionaries place caveats
against the assets.

against the assets.

2 Naidoo and Others v Kalianjee NO and Others [2015] ZASCA 102; 2016 (2) SA 451 (SCA) para 25.

13

[12] Despite all that, but for s 69, there would remain a window of opportunity for a
third party in possession of a movable asset, the ownership of which is vested in the
trustee, to alienate it in such a way that it could not be vindicated by the trustee. . . .
The longer a third party can resist handing over the asset, the more extensive the
opportunities of alienating the asset to another for value to the prejudice of creditors
of the insolvent may be. . . . Hence the need for a provision such as s 69.”’

[56] The sole aim of s 69 is to provide the first and second respondents with
physical possession of goods which, upon reasonable suspicion, are believed to be
owned by the insolvent, wherever such assets may find themselves. The aim is
certainly not to close the business of the applicant, as was done by those executing
the warrant in question.

[57] In Bruwil Konstruksie (Edms) Bpk v Whitson NO and Another 3, which
described the section as draconian and proceeded to state the following at page
711:
‘It seems to me that the purpose of the section is clearly to enable the
liquidator or trustee to obtain speedy possession of goods belonging to an
estate which he suspects, or believes on reasonable grounds, to be assets of
the estate. The safeguard to the ordinary public lies in the words “reasonable
belief” or “reasonable grounds” for suspecting. … whether the words
“reasonable grounds” imply that it should amount to a prima facie case in a
court of law. Unfortunately, there is no guidance or precedent on this
particular section but, in my view, it contemplates a lesser burden than prima
facie in a court of law, otherwise there would be hardly any purpose in the
section. The section is obviously designed to enable a liquidator or trustee to
obtain possession of assets speedily and to place the onus on the person in
possession to prove his ownership or right of possession, and to remove the
burden from an estate instituting action first and discharging the onus of

burden from an estate instituting action first and discharging the onus of
proving that the estate is the owner. If this is so, it seems to me that it would
be wrong to equate the duty resting on a liquidator or trustee under this
section with that of a litigant in proving a prima facie case. It seems clear that
sometimes less would suffice. However, he can never be free of a burden

3 Bruwil Konstruksie (Edms) Bpk v Whitson NO and Another 1980 (4) SA 703 (T).

14

before he applies to the magistrate and makes the statement that he had
reasonable grounds for suspecting that these are assets belonging to the
estate.’
[58] In Le Roux and Others v Viana N.O and Others,4 the following was held:
‘The objective of s 69(3) contemplates nothing less than the seizure of property, books and
documents relating to the insolvent estate wherever they may be. In this case the target of
the warrant was the books and documents of the companies in liquidation contained on
Caspian's hard drive. A reading of the warrant lists all that was to be seized consisting of
financial, accounting and investment documents and records relating to the companies in
liquidation. It is incorrect, as submitted on behalf of the appellants, that the objective of the
warrant was the seizure of the hard drive. The magistrate was clearly alive to the fact that
the hard drive did not belong to the companies in liquidation and that it also contained
information relating to innocent third parties. Hence the warrant is couched in terms
respecting the confidentiality of the other information on the hard drive and does not
countenance the deputy sheriff having access to it.’

[59] A reading of the warrant in question reveals that it does not specify a list of
items to be seized. Rather, it stated that on the grounds of a statement made upon
oath, “there exist reasonable grounds for suspecting that property belonging to
Sherpa Trade”. The affidavit also does no list those assets to be seized. For this
reason, this warrant is too eclectic.

[60] In De Beer NO and Others v Magistrate of Dundee NO and Others ,5 it was
held that warrants that contain vague, unintentional or overbroad provisions may be
found to be invalid in their entirety.

[61] Section 69 of the Insolvency Act must be read with s 21 of the CPA.6 Section
21(3)(a) provides that ‘[a] search warrant shall be executed by day, unless the

21(3)(a) provides that ‘[a] search warrant shall be executed by day, unless the
person issuing the warrant in writing authorizes the execution thereof by night’. In the
affidavit requesting the warrant, no basis was laid for the warrant to be executed by
night. It was wrong for the fourth respondent to authorise it for execution in the day
and night without basis in support thereof.


4 Le Roux and Others v Viana NO and Others [2007] ZASCA 173; 2008 (2) SA 173 (SCA) para 9.
5 De Beer NO and Others v Magistrate of Dundee NO and Others [2021] 1 All SA 405 (KZP) para 28.
6 See s 69(4) of the Insolvency Act.

15

[62] Another reason for setting aside a warrant is found in the matter of Cooper
v First National Bank of SA Ltd 7 has stated that; “The purpose of sec 69(3) is to
strengthen the hand of a trustee in carrying out the obligation to take charge of all
the assets belonging to an insolvent estate which are being concealed or unlawfully
withheld”. The SCA however cautioned that; “Resorting to its provisions has the
potential to infringe the rights of others in relation to both their property (at least to
the extent of depriving them of something in their possession) as well as their privacy
when it comes to search and seizure. In those circumstances, in my view, as a
general principle, a warrant should not be issued without affording the person or
persons affected, or likely to be affected (to the extent that their identities are
ascertainable or reasonably ascertainable), an opportunity to be heard, unless it can
be said that s 69(3) (the authorising provision) excludes that right either expressly or
by necessary implication. An opportunity to be heard would require the giving of
appropriate notice to the person or persons concerned.”8

[63] In the circumstances, the warrant falls to be set aside.

Counter-application by the first and second respondents and the sixth
respondent

[64] The first and second respondents issued a counter”-applications on 11
October 2024. In their application, these respondents seek the following relief:
“(a) That the First and Second Respondents be authorised in terms of Section 386
(5) as read with Section 386 (4) (a) of the Companies Act, 1973 to bring this
counterapplication and to oppose the relief sought by the Applicant.
(b) That the Rule Nisi together with its interim relief, issued on 6 September 2024
by Acting Justice Pitman be discharged.
(c) That the Applicant together with those persons or parties acting under or
through it, be ejected from the property more fully described as a Portion of Erf 1[...],

through it, be ejected from the property more fully described as a Portion of Erf 1[...],
I[...] I[...] Estate, comprising approximately 9000 square metres and situate at Corner
of White and Green Streets, Mandeni, Kwa -Zulu Natal, on grounds that its, and their
where applicable, continued occupation of the property is unlawful.

7 2001 (3) SA 705 (SCA)
8 Cooper v First National Bank of SA Ltd 2001 (3) SA 705 (SCA) at para 22

16

(d) That should the Applicant and those persons or parties referred to in the
paragraph above hereof, fail to vacate the said premises by the ______ day of
_________ 2024, the Sheriff of the High Court with jurisdiction, be directed to eject
the Applicant and the said further persons or parties, from the premises by
preventing access thereto and by removing the Applicant’s movable property from
the premises.
(e) That the Applicant pay the costs of the urgent application in terms of which the
Rule Nisi was issued, the application to set aside the warrant issued on 27 August
2024 and the counterapplication on Scale B“9.

[65] The sixth respondent also issued a counterapplication on 7 November 2024.
(a) It seeks an order for evicting the Applicant and all those occupying the
property through or under the Applicant from the immovable property described
above, on the grounds that its and their where applicable, continued occupation of
the property is unlawful.
(b) That the Rule nisi, together with its interim relief issued on 6 September 2024
by Acting Justice Pitman be discharged.
(c) Authorising and directing the Sheriff of the above Honourable Court to take
such steps as are necessary in order to give effect of the above prayer.
(d) Interdicting and restraining the Applicant and / or their privies from:
(i) conducting any activities associated with a service and filling station as
contemplated in terms of the franchise agreement between the Sixth Respondent
and the Applicant from the property described above, by utilising and / or be
associated with the Sasol brand, know -how, marketing and comprehensive blueprint
for the operation of a convenience centre and related business, equipment and
programmes, licences and / or trademarks and tradenames and / or intellectual
property.
(ii) sourcing and / or storing and / or distributing any third -party automotive fuel,
automotive products, emission fluids and related products at or from the property,

automotive products, emission fluids and related products at or from the property,
which products were sourced from parties other than the Applicant.
(e) Authorising the Sixth Respondent to gain access to the premises in order to
effect on onsite disablement, which includes manual locking where required of Sasol
is system and equipment on site.

9 Notice of Motion by first and second respondent-counterapplication

17

(f) Ordering the Applicant to pay the Sixth Respondent’s costs of this
counterapplication such to be taxed on the attorney and client scale.
(g) That the Applicant pay the costs of the urgent interdict application in terms of
which the Rule Nisi was issued, the application to set aside the warrant issued on 27
August 2024 and the counter application on Scale C “10.

[66] The sixth respondent’s counterapplication is based on the following.

[67] The property forming the subject matter of the counterapplication is owned by
Ithala. Ithala leased the property to Sherpa Trade. Sherpa Trade further sub -let the
property to the sixth respondent in terms of a written notarial agreement of lease duly
executed on 19 April 2012.

[68] The sixth respondent leased the property from Sherpa Trade for the sole
purpose of establishing and operating a Sasol branded service and filling station.
Finally, the sixth respondent further sub-let the property to the applicant in terms of a
written franchise agreement as a retailer to operate the intended Sasol branded
service and filling station.

[69] The sixth respondent indicated that the applicant obtained occupation of the
property and the right to operate the Sasol branded service station by virtue of and in
terms of the franchise agreement.

[70] The terms and conditions of the franchise agreement relevant to these
proceedings are:
(a) The applicant undertook during the currency of the franchise agreement to
purchase exclusively from the sixth respondent its entire requirements of petroleum
products.
(b) The applicant shall not under any circumstances purchase for resale any
other brand of fuel or petroleum products other than those defined under petroleum
products in the franchise agreement, unless otherwise directed in writing by the sixth
respondent (clause 12.3).

10 Notice of motion by sixth respondent-counterapplication

18

(c) The franchise agreement may be terminated with immediate effect by the
sixth respondent, inter alia, if the applicant purchased petroleum products from any
other entity, and not directly from the sixth respondent, or if the applicant allowed the
resale of any other brand of petroleum products from the premises not specifically
agreed to by the sixth respondent (clause 22.2.16).

[71] The sixth respondent alleged that from 5 May 2021, the applicant commenced
to source its fuel requirements from suppliers other than the sixth respondent . The
last order placed and delivered by the sixth respondent was on 5 May 2021. This
amounted to a breach of the franchise agreement.

[72] As a result of the aforesaid breach of the franchise agreement, the sixth
respondent, on 30 March 2023, by way of a written notice, terminated the franchise
agreement. Notwithstanding the termination of the franchise agreement, the
applicant remains in occupation of the property, continues to source and distribute
third party products to members of the public, use s the equipment and confidential
information of the sixth respondent and conducts the business of a Sasol branded
service and filling station, or at least as far as the general public is concerned, under
circumstances where the sixth respondent has been excluded and locked out from
the site by the applicant. The sixth respondent has no control over the fuel stored in
its tanks, and it has no control over the quality of fuel that is being dispensed into the
vehicles of customers.

[73] Upon termination of the franchise agreement, the following clauses are
relevant:
(a) Clause 24.3.7: the applicant was required to return all equipment belonging to
the sixth respondent or any third party that was loaned or hired from the sixth
respondent or third parties in working condition, fair wear and tear expected.
(b) Clause 24.3.8: the applicant was required to immediately return operation

(b) Clause 24.3.8: the applicant was required to immediately return operation
manuals and written material issued or produced by the sixth respondent , such as
marketing material, signage or other written or printed material containing or
featuring any part of the intellectual property which the sixth respondent , its
shareholders or members had in their possession, to the sixth respondent.

19

(c) Clause 24.3.9: the applicant shall place all material containing or embodying
the sixth respondent’s confidential information in the sixth respondent’s custody, at a
place to be specified by the sixth respondent , immediately upon the sixth
respondent’s request to this effect.
(d) Clause 22.3.13: should the sixth respondent employ legal representation to
enforce compliance, the applicant shall be liable for such legal representation and
other costs on an attorney and own client scale.
(e) Clause 22.3.14: the applicant agreed and undertook to vacate the property
with immediate effect after the cancellation of the franchise agreement or after
termination of the franchise agreement due to the expiry of its term , leaving the
property in good order and condition.

[74] On the other hand, the first and second respondents’ foundations of the
counterapplication are follows.

[75] By notice dated 20 September 2023, the sixth respondent cancelled the sub-
lease with Sherpa Trade. On the other hand, b y notice dated 30 March 2023, the
sixth respondent terminated the franchise relationship with the applicant for the
latter’s ongoing sale of third-party fuel products, while masquerading as a Sasol fuel
station.

[76] According to the first and second respondents, the sixth respondent recorded
the unjustifiable resistance in gaining access to their assets on the property,
notwithstanding cancellation of the lease and the franchise agreements.

[77] The sixth respondent threatened legal proceedings should the assets owned
by it not be returned by the provisional liquidators. It was f urther stated that the
applicant continue d to unlawfully use the sixth respondent ’s assets and to
misrepresent to the market that it is operating as Sasol fuel station , thereby causing
irreparable harm to its reputation and brand.

[78] The applicant’s continued possession of the assets and the property is clearly

[78] The applicant’s continued possession of the assets and the property is clearly
unlawful and designed to permit the applicant to continue to trade from the property

20

without paying any royalties to the sixth respondent and without paying a cent
towards municipal charges levied for the consumption of electricity and water.
[79] The applicant is also using Sasol branding, Sasol get -up, Sasol pumps and
equipment and Sasol tanks without paying anything, whilst continuing to dispense
third-party products under the guise that these are the sixth respondent’s products.

[80] Most importantly, it was contended that the provisional liquidators were
entitled to take possession of the property, as they did when the warrant was
executed. Section 391 of the Companies Act specifically directs a liquidator to
proceed forthwith to recover and reduce into possession the movable and
immovable assets and property of the company.

[81] Upon the cancellation of the sub-lease by the sixth respondent, Sherpa Trade
was entitled to be restored to possession of the property and the refusal to do so by
the applicant is unlawful. The applicant remains in unlawful occupation of the
property, and the provisional liquidators are entitled to an order for its ejectment.

[82] The applicant opposed both counterapplications and filed an answering
affidavit.

[83] The applicant content ed that Ithala is the registered owner of the property.
Ithala leased the property to Sherpa Trade in terms of a registered long-term lease
and Sherpa Trade constructed a service station. Sherpa Trade leased the property to
the sixth respondent . The sixth respondent , in turn, appointed the applicant as a
franchise to operate the service station and convenience store.

[84] The applicant raised the non-joinder of Ithala. It was further alleged that as the
owner of the property, Ithala cancelled the lease with Sherpa Trade due to the non -
payment of rent and utilities and instituted action out of the Durban High Court under
case number D11549/2022 for the ejectment of Sherpa Trade.



[85] Regarding the first and second respondents, the applicant argued that they

[85] Regarding the first and second respondents, the applicant argued that they
lack locus standi to launch the counterapplication for the ejectment of the applicant

21

and they were appointed in terms of s 386(1) of the Companies Act. The applicant
alleged that these powers do not automatically afford the first and second
respondents the necessary authority to institute civil proceedings on behalf of the
company of which they are the liquidators. I find that the Master expressly gave the
provisional liquidators such powers or at the very least, by implication bestowed such
powers on them. As liquidators they had the powers ‘to take such measures for the
protection and better administration of the affairs and property’. In the case GCC
Engineering & others v Lawrence Maroos & others 11, the court held that the
functions of a provisional liquidator are essentially to take physical control and to
manage the administration of the property and affairs of the company pending the
appointment of a liquidator.

[86] In Jansen van Rensburg NO & another v Cardio -Fitness Properties (Pty) Ltd
& others12 Kgomo J, correctly, remarked that it is a fact that provisional liquidators of
a company have the task of taking physical control of the company and its assets.
Theirs is just to superintend or act as good shepherds over the affairs and assets of
the insolvent company until a final or permanent liquidator is appointed. Only a
permanent liquidator (not a provisional one) performs the actual processes and
chores of liquidation. Normally, the powers of a provisional liquidator are restricted
by the Master. However, it remains the prerogative of the Master or the court for that
matter, to relax any restrictions that may be there or extend powers granted.



[87] The applicant admitted that the franchise agreement has lapsed but argued
that it is an error of law on the part of the applicant’s attorneys and the applicant
cannot be held bound thereto. I must state that there is no confirmatory affidavit from
the attorney confirming the allegation of an error of law. In Saloojee and Another,

the attorney confirming the allegation of an error of law. In Saloojee and Another,
NNO v Minister of Community Development13 the following is stated:
‘There is a limit beyond which a litigant cannot escape the results of his attorney's lack of
diligence or the insufficiency of the explanation tendered. To hold otherwise might have a
disastrous effect upon the observance of the Rules of this Court. Considerations ad

11 (901/2017) [2018] ZASCA 178 (3 December 2018) at para 11
12 [2014] JOL 31979 (GSJ) para 33
13 Saloojee and Another, NNO v Minister of Community Development 1965 (2) SA 135 (A) at 141C-I.

22

misericordiam should not be allowed to become an invitation to laxity ... If he relies upon the
ineptitude or remissness of his own attorney, he should at least explain that none of it is to
be imputed to himself. That has not been done in this case.’

[88] The s ame issue of blaming legal representatives was dealt with in Myeni v
Organisation Undoing Tax Abuse NPC and Others ,14 wherein the court dealt with a
similar issue and held that:
‘Applicant stated that she was unaware of the legal implications of these admissions and that
her new legal representatives were entitled to give her different advice as to what should
have been admitted. Different legal representatives may indeed give different advice, but
that cannot imply that a litigant may not be bound by pleadings drafted on her instruction and
after proper consultation. If a litigant seeks to blame their legal representatives for errors a
full explanation must be given as to why no blame should be attributed to herself.’

[89] The applicant argue d that the sixth respondent did not validly cancel the
agreement between itself and the applicant. The source of this denial has not been
explained and therefore the court will reject it . There is no pending application by the
applicant wherein it challenged the cancellation of the agreement or any submission
by counsel that such application is forthcoming on specific date. This means that the
cancellation of the franchise agreement stands.

[90] The applicant cannot just provide a bare denial in circumstances where the
applicant is in position to answer fully but failed. In R Bakers (Pty) Ltd v Ruto
Bakeries (Pty) Ltd15 the court held that:
‘For matters for which motion procedure is prescribed by law, e.g. Petitions for sequestration, a
bare denial, unsupported by facts, may be wholly inadequate and ineffective. The respondent
is expected to set out, in some detail, his available evidence in support of the denial, as also

where the defence is one of confession and avoidance. This is inevitable. In such cases, the
Court deciding the issues, must arrive at a decision based on the preponderance of probability
on the affidavits as best it can.’

[91] In the answering affidavit, t he applicant did not answer the first and second
respondents’ allegations that the sixth respondent was obliged to restore vacant

14 Myeni v Organisation Undoing Tax Abuse NPC and Others [2019] ZAGPPHC 565 (Myeni) para 44.
15 R Bakers (Pty) Ltd v Ruto Bakeries (Pty) Ltd 1948 (2) SA 626 (T) at 630-631.

23

possession of the site to Sherpa trade, free of any occupants, such as the applicant,
who had no contractual nexus with Sherpa Trade and no right to occupy the site. The
court will thus accept these allegations as unchallenged.

[92] Regarding the notice dated 30 March 2023 wherein the sixth respondent
terminated the franchise relationship with the applicant, the applicant argued that
these allegations are hearsay and should be struck out. The letter from the sixth
respondent dated 30 March 2023 confirm ed the termination and this letter is not
disputed by the applicant . The s ame letter is attached in the sixth respondent
application, which is related to the first and second respondents’ application. In the
counterapplication by sixth respondent, this letter was not challenged as a hearsay.

[93] The applicant denied the allegations by the first and second respondents that
the continued possession of the assets and the property are clearly unlawful. In
answering to this, the applicant argued that these allegations are not relevant. I find
these allegations relevant and they require answers from the applicant. In the
absence of gainsay, these allegations are accordingly admitted.

[94] I further find that the applicant is using Sasol branding, Sasol get -up, Sasol
pumps and equipment and Sasol tanks without paying anything as relevant for the
purpose of ejectment.

[95] The applicant answered the sixth respondent’s application as follows. In terms
of the agreement between the sixth respondent and the applicant, the applicant was
required to source its fuel requirement exclusively from the sixth respondent and it
would not store or distribute fuel not sourced from the sixth respondent. In answering
to this allegation, the applicant indicated that since December 2017, the applicant
experienced fuel shortages due to the sixth respondent’s inability to make deliveries
timeously and regularly.

[96] On numerous occasions, the applicant complained to the sixth respondent

[96] On numerous occasions, the applicant complained to the sixth respondent
and on occasion , sought the sixth respondent ’s permission to source fuel from third
party suppliers to continue the applicant’s business. The sixth respondent denied
these allegations and regards them as a postscript.

24


[97] This request of permission to source fuel from a third party is against clause
12.3 of the franchise agreement that -The applicant shall not under any
circumstances purchase for resale any other brand of fuel or petroleum products
other than those defined under petroleum products in the franchise agreement ,
unless otherwise directed in writing by the sixth respondent.

[98] The difficulty I have with th e applicant’s answer is that there is no proof of
these allegations in the form of a letter or email by the applicant to the sixth
respondent seeking permission to source fuel from the third party . It has been tried
that “ In motion proceedings, the affidavits constitute both the pleadings and the
evidence: Transnet Ltd v Rubenstein, and the issues and averments in support of the
parties’ cases should appear clearly therefrom.”16

[99] Instead, the applicant admitted the source of fuel from the third party, which is
a breach of contract. Therefore, the sixth respondent ’s termination of the franchise
agreement by way of written notice on 30 March 2023 was justified. The respondent
took the court into confidence and put all, the evidence needed to substantiate their
case and which there is a possibility that their version might be true. On the other
hand, applicant chosen not to place all the evidence needed before this court and
the court can only work with what is before it. I agree with sixth respondent reply that
this admission put end to any attempt to challenge the termination of the franchise
agreement on the part of the applicant.

[100] Following from the termination, the applicant must surrender the equipment
and the business back to the sixth respondent . I find that the applicant is and
remains in unlawful possession of the property. The activities conducted by the
applicant at the property is and remains unlawful. This continuation of unlawful
activities cannot be allowed anymore. It is for this reason that the applicant must be

activities cannot be allowed anymore. It is for this reason that the applicant must be
given 15 days to pack and leave.

[101] The sixth respondent did demonstrate that the franchise agreement was
validly cancelled. It follows that the applicant’s continued occupation and operation of

16 Minister of Land Affairs and Agriculture and Others v D & F Wevell Trust and Others (171/06) [2007] ZASCA
153; [2007] SCA 153 (RSA); 2008 (2) SA 184 (SCA) (28 November 2007) at para 43

25

the property is unlawful. Since the applicant’s only basis for occupying the property
was the franchise agreement, once the franchise agreement was terminated, any
entitlement the applicant had to occupy the property fell away.

[102] In Sasol Oil and Another v Bitline SA 951 cc t/a Sasol Roodepoort West and
Another,17 the court held the following:
‘[17] Sasol Oil has a clear right, in the form of its ownership of the intellectual property, which
requires protection and which Bitline SA presently uses without Sasol Oil’s authority to do so.
No more needs to be said about this requirement. Bitline SA and Mr Jassat continue to
operate the site as a Sasol branded service station, without the consent of Sasol Oil,
misrepresenting to the general public that the site is and remains a Sasol service and filling
station. They are also using Sasol’s equipment and intellectual property, on the
unsubstantiated and contradictory contention that a valid and binding franchise agreement is
and remains in place.
…
[21]. Both Sasol Oil and Amrich make application for the eviction of Bitline SA from
commercial premises, being the property situate at corner Main Reef and Serfontein Roads,
Roodepoort West ( “the premises ” or “the property ”) and from which premises Bitline SA
conducts the franchise business as Sasol Roodepoort West. Amrich approaches the court
for an eviction order in its capacity as owner of the premises and Sasol Oil’s cause of action
is based on its contractual and common law obligation(s) owed to Amrich as owner to return
free and undisturbed possession of the premises to its owner.
[22]. As I have already found, the franchise agreement, at best for Bitline SA, came to an
end by effluxion of time on 30 June 2022. This therefore means that it does not have any
right to remain in occupation of the premises. Sasol Oil is therefore entitled to an eviction
order against Bitline SA. The simple fact of the matter is that Bitline SA was granted the right

to occupy the premises by Sasol Oil pursuant to and in terms of the Franchise Agreement
and this is the only basis on which they could and in fact did occupy the said property. Once
the Franchise Agreement was terminated, Bitline SA’s entitlement to occupy the premises
came to an end and Sasol Oil was entitled to ask for their eviction from the premises.
[23]. Amrich, on the other hand, as the owner of the property, is entitled to an eviction order
against an unlawful occupier on the basis of the rei vindicatio. An owner is entitled to reclaim
possession of its property with the rei vindicatio and is required only to allege and prove: (a)
ownership of the premises; and (b) that the respondent is in possession of the said thing.
Should the respondent claim a right to be in possession or occupation of the premises, the

17 Sasol Oil and Another v Bitline SA 951 CC t/a Sasol Roodepoort West and Another [2023]
ZAGPJHC 1437 (Bitline).

26

respondent must allege and prove such right. Accordingly, in casu the onus is on Bitline SA
to justify its continued occupation of the premises in relation to Amrich as the owner thereof.
This, Bitline SA has miserably failed to do, which, in my judgment spells the end of Bitline
SA’s case in opposition to the eviction application.’

[103] I agree with what was held in Bitline, and it is applicable to this judgment.

[104] Given the fact that the franchise agreement was terminated the applicant right
to occupy the property and to operate the filing station ceased to exist , in Bitline the
following was held,

“[16]. In the circumstances, I am satisfied that Sasol Oil has made out a case
for final interdictory relief sought in the first application. I am persuaded that
Sasol Oil, as the applicant for interdictory relief, has fulfilled the requirements
for such relief, to wit: (a) it has a clear right; (b) it has a reasonable
apprehension of irreparable harm; and (c) it has no alternative remedy that
would suitably address any harm suffered in the normal course of events.

[17]. Sasol Oil has a clear right, in the form of its ownership of the intellectual
property, which requires protection and which Bitline SA presently uses
without Sasol Oil’s authority to do so. No more needs to be said about this
requirement. Bitline SA and Mr Jassat continue to operate the site as a Sasol
branded service station, without the consent of Sasol Oil, misrepresenting to
the general public that the site is and remains a Sasol service and filling
station. They are also using Sasol’s equipment and intellectual property; on
the unsubstantiated and contradictory contention that a valid and binding
franchise agreement is and remains in place.

[18]. There can also be no doubt that Sasol Oil will suffer irreparable harm if
the interdict is not granted. It is so, as contended by Mr Aucamp, Counsel for
Sasol Oil, that in the case of a vindicatory or quasi vindicatory claims, it is

Sasol Oil, that in the case of a vindicatory or quasi vindicatory claims, it is
factually presumed, until the contrary is shown, that Sasol will suffer
irreparable harm if the interdict is not granted.

27

[19]. Moreover, Sasol Oil does not have available to it any alternative remedy.
Even where an injury may be capable of pecuniary evaluation and
compensation, the court will generally grant an interdict if the injury is a
continuing violation of an applicant’s rights as is the case with Sasol Oil in
casu.

[20]. For all these reasons, the interdict application should succeed.

[105] I give the applicant thirty (30) days to vacate the property, more fully
described as Portion of ERF 1[...] I[...] I[...] Estate.

[106] The applicant raised a defence of non -joinder of Ithala as the owner of the
premises. The test for joinder of necessity was restated by Brand JA in Bowring NO
v Vrededorp Properties CC and Another:18
‘The substantial test is whether the party that is alleged to be a necessary party for purposes
of joinder has a legal interest in the subject -matter of the litigation, which may be affected
prejudicially by the judgment of the Court in the proceedings concerned…’

[107] The question is therefor e whether Ithala might be prejudicially affected by a
judgment in this application.

[108] The applicant did not demonstrate how this judgment will affect Ithala. The
mere fact that a party may have an interest in the outcome of the litigation does not
warrant a non-joinder objection. I therefore find no merit on this issue of non-joinder.

[109] In Myeni the court held that:
‘[65] In Amalgamated Engineering Union, the Appellate Division explained further that
“[t]he question of joinder should … not depend on the nature of the subject -matter of the suit
… but… on the manner in which, and the extent to which, the Court's order may affect the
interests of third parties."
[66] This means that the relief is decisive, not the facts or issues in dispute. Even where
a Court may be called on to make findings that are verse to another party this does not

18 Bowring NO v Vrededorp Properties CC and Another [2007] ZASCA 80; 2007 (5) SA 391 (SCA)
para 21.

28

establish grounds for non -joinder if the relief sought does not adversely impact on that
party’s interests.
[67] In this instance the Respondents seek relief only against the Applicant and not
against the other Board Members. The relief claimed therefore does not impact on the other
director them at all and as a result they do not have a direct and substantial interest in this
matter.’

[110] In applying Myeni to the matter in question , I find that the ejectment relief
does not impact on Ithala and as a result, Ithala has no direct and substantial interest
in this matter.

[111] The first and second respondents seek relief that they be authorised in terms
of s 386(5), as read with s 386(4)(a) of the Companies Act 61 of 1973 (Companies
Act), to bring this counterapplication and to oppose the relief sought by the applicant.

[112] Section 386 of the Companies Act deals with the general powers of
liquidators. More specifically, s 386(4)(a) states that the liquidator , with the
appropriate authority, has the power:
‘to bring or defend in the name and on behalf of the company any action or other legal
proceeding of a civil nature, and, subject to the provisions of any law relating to criminal
procedure, any criminal proceedings: Provided that immediately upon the appointment of a
liquidator and in the absence of the authority referred to in subsection (3), the Master may
authorize, upon such terms as he thinks fit, any urgent legal proceedings for the recovery of
outstanding accounts.’


[113] In the counterapplication, the first and second respondents alleged that they
were appointed by the Master of the High Court, Pietermaritzburg on 9 January 2024
in terms of a Certificate of Appointment with reference number N000347/2022.

[114] The first and second respondents submitted that Sherpa Trade was finally
wound-up on 12 February 2024 with the order suspended until 13 May 2024. It has
now become final.

29

[115] Section 386(5) provides that the court may grant leave to a liquidator to do
anything which the court may consider necessary for winding -up the affairs of the
company and distributing its assets. The court is granted wide powers to authorise
anything necessary for winding-up the affairs of the company.

[116] It is tried that ‘It is clear that a company being wound up never has standing;
the locus standi is always conferred on the liquidator who litigates on the company’s
behalf.”19 I am satisfied that it is in the interest of the company in liquidation or its
creditors to grant the leave they seek.

Confirmation of the rule nisi
[117] Regarding t he rule nisi, the sixth respondent requested that the rule nisi,
together with interim relief issued on 6 September 2024 , be discharged. Likewise,
the first and second respondents requested the rule nisi to be discharged. On the
other hand, the applicant requested that the rule nisi granted on 6 September 2024
be confirmed with costs.

[118] Since the warrant has been set aside, I find no reason to confirm the rule nisi.
Therefore, the rule nisi granted on 6 September 2024 is discharged.

Costs
[118] Regarding the issue of costs, the general rule relating to costs is that costs
follow the result. Re -imbursing a successful party of his or her out of pocket
expenses is a settled principle which brooks no further ventilation.

[119] In Mkhatshwa and Others v Mkhatshwa and Others ,20 the following was held
about costs:
‘Generally speaking, punitive costs orders are not frequently made, and exceptional
circumstances must exist before they are warranted. In SARB this court affirmed the
following guiding principles in relation to punitive costs, elucidated by the Labour Appeal
Court in Plastic Converters Association of SA:

19 Imperial Bank Limited v Hendrick Barnard NO (349/12) [2013]
ZASCA 42 (28 March 2013 at para 6
20 Mkhatshwa and Others v Mkhatshwa and Others [2021] ZACC 15; 2021 (5) SA 447 (CC) para 21.

30

“The scale of attorney and client is an extraordinary one which should be reserved for
cases where it can be found that a litigant conducted itself in a clear and indubitably
vexatious and reprehensible manner. Such an award is exceptional and is intended
to be very punitive and indicative of extreme opprobrium.”’

[120] The applicant was served with a termination letter of the franchise agreement
on 30 March 2023. From this date, the applicant was in unlawful occupation of the
premises. Most importantly, the applicant admitted that he sought fuel from a third
party. This means that the applicant deprived the sixth respondent of profit. Despite
this, the applicant joined the sixth respondent to the proceedings, and the sixth
respondent incurred more costs, in circumstances that were unnecessary. Therefore,
the sixth respondent is clearly entitled to be granted costs in its favour in the rule nisi
application.

[121] In relation to the first and second respondents’ requests of costs in the rule
nisi, I already found that the applicant was justified in launching the rule nisi
application to challenge a warrant . Therefore, the court will not grant costs order
against the applicant in favour of the said respondents nor grant a costs order in
favour of the applicant. Because the franchise agreement was terminated.
Notwithstanding being so, the applicant continued to operate business and
unlawfully so.

[122] In respect of the application to set aside a warrant, the applicant is successful.
The costs will follow the event.

[123] The first and second respondents brought a counterapplication for the
ejectment of the applicant based on reasons explained above. The general rule is
that the successful party should be given its costs, and that rule should not be
departed from except where there are good grounds for doing so, such as
misconduct on the part of the successful party or other exceptional circumstances.

misconduct on the part of the successful party or other exceptional circumstances.

[124] Likewise, the sixth respondent brought a counterapplication against the
applicant, which was successful and the costs must follow the event.

31

[125] I can think of no reason why I should deviate from these well-established
principles of costs to follow the event.

The following order is accordingly granted:
1. In the application to set aside the search warrant (case no 14437/24P):
1.1 The decision by the fourth respondent to issue and authorise the document
titled: ‘Warrant – in terms of Section 69 of Act 24 of 1936 as read with Section 21 of
Act 51 of 1977: To search for and take possession of property in the liquidated estate
of Sherpa Trade and Investments 71 (Pty) Ltd (in liquidation) ’ is reviewed and set
aside.
1.2 The execution of the warrant is reviewed and set aside.
1.3 The first and second respondents are directed to forthwith restore possession
of the business premises situated at Erf 1[...], corner of Green and White Street s,
Isithebe, Kwa-Zulu Natal to the applicant, which premises comprises a fore court and
convenience store known as Sasol Isithebe and Sasol Delight , respectively with
immediate effect.
1.4 In the event of the first and second respondents not restoring possession as
aforesaid immediately upon service on them/their attorneys of this order, then the
sheriff is authorised to do all that is necessary and incidental to restoring possession
of the abovementioned business premises, stock and contents therein to the
applicant, including using the services of a locksmith to cut off /otherwise remove the
chains and locks affixed to the doors, gates and the like at such premises.
1.5 The first and second respondents, jointly and severally, the one paying the
other to be absolved, to pay the costs of the application, on scale C.
1.6 As between the applicant and six respondent, there is no order as to costs.

2. In the counterapplication by the first and second respondent ( case no
14437/24P):
2.1 The first and second respondents are authorised in terms of s 386(5), as read
with s 386(4)(a) of the Companies Act 61 of 1973, to bring this counterapplication

with s 386(4)(a) of the Companies Act 61 of 1973, to bring this counterapplication
and to oppose the relief sought by the applicant.
2.2 The applicant, together with those persons or parties acting under or through
it, are ejected from the property, more fully descried as Portion of ERF 1[...], I[...] I[...]

32

Estate, comprising approximately 9 000 square meters and situated at the corner of
White and Green Streets, Mandeni, KwaZulu-Natal.
2.3 Should the applicant fail to vacate the said premises by 30 March 2026, the
sheriff of the high court with jurisdiction is directed to eject the applicant and the
further persons or parties from the premises by preventing access thereto and by
removing the applicant’s movable property from the premises.
2.4 The applicant is directed to pay the first and second respondents’ costs of the
counterapplication on scale C.
2.5 In respect of the urgent interdict application, it is ordered that each party is to
pay its own costs.


3. In the counterapplication by the sixth respondent (case no 14437/24P):
3.1 The applicant, together with those persons or parties acting under through it
are ejected from the immovable property, being Portion of ERF 1[...], I[...] I[...] Estate,
comprising approximately 9 000 square meters and situated at the corner of White
and Green Streets, Mandeni, KwaZulu-Natal (the premises).
3.2 Should the applicant and those persons or parties referred to in paragraph
3.1, fail to vacate the said premises by 30 March 2026, the sheriff of the high court
with jurisdiction is directed to eject the applicant and the further persons or parties
from the premises by preventing access thereto and by removing the applicant’s
movable property from the premises.
3.3 The applicant and/or their privies are interdicted and restrained from:
(i) conducting any activities associated with a service and filling station as
contemplated in terms of the franchise agreement between the sixth
respondent and the applicant from the property known as Portion of ERF
1[...], I[...] I[...] Estate, comprising approximately 9 000 square meters and
situate at the corner of White and Green Streets, Mandeni, Kwazulu -Natal
(the premises) by utilising and/or be associated with the Sasol brand, know

(the premises) by utilising and/or be associated with the Sasol brand, know
how, marketing and comprehensive blueprint for the operation of a
convenience center and related businesses, equipment and programmes,
licences and/or trademarks and tradenames and/or intellectual property.

33

(ii) Sourcing and/or storing and/or distributing any third -party automotive fuel,
automotive products, emission fluids and related products at or from the
premises, which products were sourced from parties than the applicant.
3.4 The applicant is ordered to authori se the sixth respondent to gain access to
the premisses in order to effect an onsite disablement, which includes manual
locking, where required, of the sixth respondent’s system and equipment on site.
3.5 The applicant is ordered to pay the six respondent’s costs of this
counterapplication, such costs to be taxed on the attorney and client scale.


4. In the application to confirm the rule nisi (case no 13720/24P):
4.1 The rule nisi, together with its interim relief issued on 6 September 2024 by
Pitman AJ, is discharged.
4.2 The applicant shall pay the sixth respondent’s costs of the rule nisi application
on scale C.
4.3 The applicant and the first and second respondents are each to pay their own
costs in the rule nisi application.
5. In the condonation application (case no 14437/24P):
5.1 The late delivery of the applicant’s heads of arguments and practice note is
condone.
5.2 The applicant is ordered to pay the wasted costs occasioned by the
condonation application.



___________________
MATLAMELA AJ

Appearances:
Counsel for the Applicant: Adv F M MOOLA SC
Instructed by: M.N MOOLA Attorneys
Counsel for the Respondent 1st and 2nd Respondent: Adv R M Van Rooyen
Instructed by: COX YEATS ATTORNEYS
Counsel for the 6th Respondent: Adv S Aucamp

34

Instructed by: MATHOPO MOSHIMANE MULANGAPHUMA INCORPORATED
Heard on: 31 October 2025
Delivered on: 27 February 2026