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SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in
compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)
Case No. A 105/2025
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO OTHER JUDGES: YES/NO
(3) REVISED
DATE: 12 March 2026
SIGNATURE:
In the matter between:
ZAISAN KAIHATSU (PTY) LTD
FIRST APPELLANT
MOKOENA, NOKUTHULA
SECOND APPELLANT
And
CASSIM, ZAHEER N.O.
FIRST RESPONDENT
SIMBITHI HOLDINGS (PTY) LTD
SECOND RESPONDENT
GROUP OF PERSONS ON AND/OR
THIRD RESPONDENT
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OCCUPYING THE PREMISES SITUATED AT
4[...] S[...] AVENUE, BRYANSTON,
JOHANNESBURG
Coram: Millar et Swanepoel JJ et Mzuzu AJ
Heard on: 4 March 2026
Delivered: 12 March 2026 - This judgment was handed down electronically by
circulation to the parties' representatives by email, by being
uploaded to the CaseLines system of the GD and by release to
SAFLII. The date and time for hand-down is deemed to be 08H00
on 12 March 2026.
ORDER
It is Ordered:
[1] The appeal is dismissed.
[2] Each party is ordered to pay its own costs.
JUDGMENT
MILLAR J (SWANEPOEL J & MZUZU AJ CONCURRING)
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[1] This is an appeal in terms of s 18(4)(ii) of the Superior Courts Act 1 (the Act). It
is an automatic appeal against the judgment of M akhoba J , who granted an
order in terms of s 18(3) putting into operation an eviction order. The
application in terms of s 18(3) was made at the same time as an application for
leave to appeal had been brought against the eviction order by the parties
against whom that order had been made.
[2] An interesting feature in the present application, is that the first and second
appellant, as cited in the s 18(3) application and in this appeal, were not parties
to the initial proceedings in the court a quo.
[3] Two issues arise in this appeal –
[3.1] Firstly, it is common cause that after the dismissal of the application for
leave to appeal the eviction order, none of the respondents who were
cited in those proceedings pursued any further application for leave to
appeal. The eviction order, against the parties who were cited is
accordingly, a final order.
[3.2] Secondly, whether in consequence of the fact that the eviction order is
not subject to an appeal, notwithstanding the citing of the appellants for
the first time in the s 18(3) application and the exercise of their right to
appeal it, it is nonetheless moot because the eviction order is not
subject to any appeal.
[4] Firstly, s 18 of the Act provides that—
“(1) Subject to subsections (2) and (3), and unless the court under exceptional
circumstances orders otherwise, the operation and execution of a decision
which is the subject of an application for leave to appeal or of an appeal , is
suspended pending the decision of the application or appeal.
1 10 of 2013.
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(2) Subject to subsection (3), unless the court under exceptional circumstances
orders otherwise, the operation and execution of a decision that is an
interlocutory order not having the effect of a final judgment, which is the
subject of an application for leave to appeal or of an appeal, is not
suspended pending the decision of the application or appeal.
(3) A court may only order otherwise as contemplated in subsection (1) or (2),
if the party who applied to the court to order otherwise, in addition proves
on a balance of probabilities that he or she will suffer irreparable harm if the
court does not so order and that the other party will not suffer irreparable
harm if the court so orders.
(4) (a) If a court orders otherwise, as contemplated in subsection (1) —
(i) the court must immediately record its reasons for doing so;
(ii) the aggrieved party has an automatic right of appeal to the next highest
court;
(iii) the court hearing such an appeal must deal with it as a matter of
extreme urgency; and (iv) such order will be automatically suspended,
pending the outcome of such appeal.
(b) ‘Next highest court’, for purposes of paragraph (a)(ii), means —
(i) a full court of that Division, if the appeal is against a decision of a single
judge of the Division; or
(ii) the Supreme Court of Appeal, if the appeal is against a decision of two
judges or the full court of the Division.”
[5] An order in terms of s 18(3) is ancillary to a n order in terms of s 18(1). Unless
the operation of a court order is suspended, or it is anticipated that an
application for leave to appeal will be made which will have the effect of
suspending it, no order in terms of s 18(3) will be of effect.
[6] It may be that pending an application for leave to appeal an order was made, as
presumably was anticipated in the present instance, however once the initial
application for leave to appeal was dismissed by the court a quo and no further
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steps were taken to pursue a further application for leave to appeal to the
Supreme Court of Appeal, the eviction order became a final order of court. The
order granted in terms of s 18(3), being an ancillary order, whose effect
depends upon an underlying appeal, simply does not have any life in the
absence of such an appeal. This is what has occurred in the present instance
and for this reason alone, the appeal falls to be dismissed.
[7] Turning now to the second issue. The appellants were not specifically cited as
respondents in the eviction application. They were joined for the first time in the
s 18(3) application. The respondents argued that the appellants were by
implication part of the group of persons cited as the third respondent in that
application.
[8] The third respondent was cited as “ GROUP OF PERSONS ON AND/OR
OCCUPYING THE PREMISES SITUATED AT 4[...] S[...] AVENUE, BRYANSTON,
JOHANNESBURG. “Inexplicably , even though the appellants had presumably
been identified as forming part of the “group“ of persons cited as the third
respondent, no application was made to join them to the eviction proceedings.
Instead, they were cited for the very first time in the s 18(3) proceedings. This
was an error because the order in terms of s 18(3) depends for its entire
existence, upon there being an underlying order that is subject to appeal. It is
self-evident that if a party is not cited, a court order cannot be made against
them.
[9] The respondents contend that the appellants were involved in the main action
and fall within the “group” cited as the third respondent. In fact, they were not
specifically cited and therefore, to do so for the first time in the application in
terms of s 18(3) was incorrect.2
2 Costa v Korte and Another; In Re: Korte and Another v Mitrewood Products CC and Others (19524 /
2019) [2022] ZAGPJHC 1245 (19 December 2022) at para 33.
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[10] Given that the respondents were aware of the existence of the appellants at the
time when the application for leave to appeal the eviction order was granted, it
was incumbent upon them, believing that the appellants were to be subject to
the eviction order, to ensure that they were properly joined in those
proceedings. Of course, if the appellants were always part of the persons cited
in the eviction proceedings and had received proper notice of the proceedings,
the order made would be effective against them. By the same token, if that
order affected them, their remedy was to apply for leave to appeal that order. It
did not occur.
[11] The general principle is that a matter is moot when a judgment handed down by
the court will have no practical effect on the parties. 3 This frequently occurs
when there is no existing or live controversy between the parties ,4 as is the
case in the present instance. Whether or not the appellants are part of the
“group” or not, may be a matter for interpretation of the eviction order but is
certainly not an issue insofar as the present appeal in terms of s 18(4)(ii) is
concerned.
[12] Accordingly, in the absence of a pending application for l eave to appeal or
appeal, the s 18(3) order is of no moment since there is no longer any live
dispute between the cited parties to the eviction proceedings. It follows that the
appeal against the s 18(3) order is moot.
[13] In regard to costs, both parties approached this appeal under the
misapprehension that the s 18(3) order was of effect. For this reason, it is
appropriate that neither party should be mulcted with costs. It is for this reason
that the costs order will be one where each party is to pay its own costs.
[14] In the circumstances it is ordered:
3 Solidariteit Helpende Hand NPC and Others v Minister of Cooperative Governance and Traditional
Affairs (104/2022) [2023] ZASCA 35 (31 March 2023) at para 12.
4 Solidariteit above at para 12.
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[14.1] The appeal is dismissed.
[14.2] Each party is ordered to pay its own costs.
_____________________________
A MILLAR
JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
I AGREE,
________________________________
JC SWANEPOEL
JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
I AGREE,
________________________________
S MZUZU
ACTING JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
HEARD ON: 4 MARCH 2026
JUDGMENT DELIVERED ON: 12 MARCH 2026
COUNSEL FOR THE APPELLANTS: ADV. M SALUKAZANA
INSTRUCTED BY: MJ MAPONYA ATTORNEYS INC.
REFERENCE: MR. MJ MAPONYA
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COUNSEL FOR THE RESPONDENTS: ADV. R RAUBENHEIMER
INSTRUCTED BY: MOTHLE JOOMA SABDIA INC.
REFERENCE: MR. E JOOMA