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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
LIMPOPO LOCAL DIVISION, THOHOYANDOU.
In the matter between:
LUFUNO ARCHIBOLD NEMUKONGWE
NEMUKONGWE ATTORNEYS INC
IVE STONE CRUSHERS
and
AIRCRAFT ASSET FINANCE CORPORATION
JUDGMEN T
Heard on: 15 January 2026.
CASE NO. 1653/2025
FIRST APPLICANT
SECOND APPLICANT
THIRD APPLICANT
RESPONDENT
Delivered: this judgment was handed down electronically by circulation to the
parties' legal representatives by email and release on SAFLI I. The date and
time for hand-down is deemed to be at 14:00 on 19 February 2026.
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SEMENYA DJP
[1] The applicants instituted an urgent ex parte application for the
restoration into their possession of a Metso 2018 LT120 Mobile Jaw
Crusher, year model 2018 Serial number 79602, and a Metso 2017
Locotrack L T300 Cone Crusher year model 2017 serial number 79408
(equipment) to the first applicant by the respondent. The applicants
obtained an order as prayed for with the return date of the rule nisi of the
23 October 2025.
[2] , The respondent opposes the confirmation of the rule nisi in part A of its
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answering affidavit and had anticipated the return date of the rule nisi.
The anticipation was struck off the roll for lack of.urgency. Part B is a
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counter application for the restoration of same equipment into the hands
of the respondent. The two claims launched by the applicants and
respondent will be dealt with in this judgment.
[3] The ex parte application and the counter application arise out of a
Master Rental Agreement entered into between the applicants and the
respondents. According to the Schedule of the agreement attached to
the respondent's answering affidavit, the commencement date of the
agreement was 3 December 2024 with the expiry date of 28 October
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2025. The agreement was, therefore, about to expire by effluxion of time
when the ex parte application was instituted. It is not in dispute that the
agreement was already cancelled by the respondent.
[4) The applicants state that the equipment was delivered in a defective
state and could not be operated for most of the contract period. Despite
this fact the applicants made two payments, in December 2024 and May
2025. The applicants further allege that . they spent approximately
R2 100 000.00 on repairs of the equipment.
[5] The respondent contends that the applicants, particularly the first
applicant, who is an attorney by profession, failed to act with utmost
good faith when deposing to the founding affidavit. The respondent
submits that had the applicants or the first applicant in particular, who is
an attorney by profession, disclosed all necessary informati9n, this court
would not have granted the interim order.
[6] The utmost good faith principle applicable in ex parte applications has
been restated in Recycling and Economic Development Initiative of
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South Africa NPC v Minister of Environmental Affairs1 where it was
said that:
"[45] The principle of disclosure in ex parte proceedings is clear. In NDPP v
Sasson this court said:
'Where an order is sought ex parte it is well established that the utmost
good faith must be observed. All material facts must be disclosed
which might influence a court in coming to its decision, and the
withholding or suppression of material facts, by itself, entitles a court to
set aside an order, even if the non-disclosure was not wilful or mala
fide (Schlesinger v Schlesinger 1979 (4) SA 342 (W) at 348E-349B)
.,
[46] The duty of the utmost good faith, and in particular the duty of full
and fair disclosure, is imposed because orders granted without notice
to affected parties are a departure from a fundamental principle of the
administration of justice, namely, audi alteram partem. The law
sometimes allows a departure from this principle in the 6 National
Director of Public Prosecutions v Sasson; 2002 (1) SA 419 (SCA) para
21. 17 interests of justice but in those exceptional circumstances the
ex parte applicant assumes a heavy responsibility to neutralise the
prejudice the affected party suffers by his or her absence.
[47] The applicant must thus be scrupulously fair in presenting her
own case. She must also speak for the absent party by disclosing all
relevant facts she knows or reasonably expects the absent party would
1 2019 (3) SA 251 (SCA) at 268A
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want placed before the court. The applicant must disclose and deal
fairly with any defences of which she is aware or which she may
reasonably anticipate. She must disclose all relevant adverse material
that the absent respondent might have put up in opposition to the
order. She must also exercise due care and make such enquiries and
conduct such investigations as are reasonable in the circumstances
before seeking ex parte relief. She may not refrain from disclosing
matter asserted by the absent party because she believes it to be
untrue. And even where the ex parte applicant has endeavoured in
good faith to discharge her duty, she will be held to have fallen short if
the court finds that matter she regarded as irrele~ant was sufficiently
t material to require disclosure. The test is objective." Footnotes
excluded.
[7] The first applicant deposed to the affidavit filed in support of the
application for spoliation application. The sequence of events leading to
the alleged act of spoliation, according to the version of the applicants, is
that on 17 October 2025, the first applicant informed the respondent in
meeting held on WhatsApp, that the second applicant has recently
secured certain projects in the amount of R6 600 000.00 and that the
work will be done at Giyani. Despite this information the respondent, on :.
the 21 October 2025, engaged the services of Briant Security Company
to go and remove the equipment from the applicants' site at Matanda.
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They were also sent to remove another equipment which was already at
the Giyani site.
[8] The applicants contend that the removal and seizure of the equipment
from the Matanda and Giyani site by Brinant Security Company, acting
on respondent's instructions on the 21 October 2025, constitute unlawful
deprivation of possession of the equipment and amounts to self-help,
which is legally prohibited. They further content that the seizure halted
performance at the site which resulted in putting the livelihood of the r workers at risk.
[9] In answer to the averments made in the applicants' founding affidavit,
the respondent state that the applicants deliberately omitted to attach
the correct documentation to the founding affidavit and that, had they
attached the Schedule to the agreement, the court would have noticed
that the lease agreement was about to expire within five days. The
respondent states further that the applicants misled the court under oath
by stating that they were dispossessed of the equipment when, in truth,
the equipment has been in the applicants' possession since the
commencement of the agreement and remained in their possession up
until the date of the ex parte application. In addition, the respondent
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contends that the applicants failed to disclose that the lease agreement
was already cancelled.
[1 O] The respondent admits that it attempted to collect the equipment on the
21 October 2025 as alleged by the applicants. However, the security
officers and those who were to transport the equipment met with a
rowdy community which made the repossession impossible. The
applicants later informed the respondent that the riot was caused by the
applicants' failure to pay salaries. When the respondent sent armed
guards to safeguard the equipment, as opposed to~ removing it, the
people who had gathered there became violent towards them and
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ordered them to leave.
[11] The respondent states that the applicants attempted to negotiate a new
agreement to no avail. On the 18 November 2025, after the failed
renegotiation, the applicants decided to serve the applicants with an
interim ex parte order. The respondent further states that it came to its
attention that the equipment has been removed to Giyani site and that
its Global Positioning System (GPS) has been disabled. A team of
technicians were sent to repair it. On 21 November 2025, the GPS on
one of the equipment showed that it was being transported back to
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Matanda, where it would have been difficult for the respondent to collect
due to possible unrest. The equipment was returned to Giyani.
[12] The respondent states that the applicants offered to withdraw the ex
parte application and the application and to remove it from the roll of the
12 December 2025, only on condition that the respondent enters into a
new lease agreement with them.
[13] The respondent states that the equipment is currently uninsured by the
.• applicants and that the current ongoing operation ot the equipment
threatens imminent disaster to its mechanical components .
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[14] The applicants erroneously contend in their replying affidavit that the ex
parte application is not opposed. The respondent has structured its
answering affidavit in two parts. Part A is an urgent anticipatory
application brought in terms of rule 6(8). This application was struck off
the roll due to lack of urgency. In Part 8, the respondent seeks the
restoration of the equipment into its possession. It is clearly stated that
the affidavit is filed in support of both applications and will serve as a
founding affidavit in the counter application and an answering affidavit in
the main application.
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[15] There applicants contend in the replying affidavit that the respondent's
contention that the applicants failed to insure the equipment is false.
They have attached insurance contracts documents (with OUTsurance)
as proof that the equipment has been insured. However, as correctly
pointed out by the respondent, the insurance contract was entered into
on the 26 November 2025, after the filing of the respondent's answering
affidavit. In addition, the insurance covers equipment which unrelated to
the application before me. The applicants state further that the
.• agreement entered into was for rental with option Jo purchase. The
respondent again brought it to the attention of this court that the written
agreement speak about a lease agreement only.
[16] Contrary to the well-established principle that the applicant must make
out a case in the founding affidavit,2 the applicants in this case
introduced a completely new case in reply Subsequent to the order
obtained ex parte and the filing of the answering affidavit and the
counter application launched by the respondent, the applicants instituted
civil action against the respondent based on the same agreement. The
particulars of claim in the action proceedings are attached to the replying
2 My Vote Counts NPC v Speaker of The National Assembly 2016 (1) SA 132 (CC) at paragraph [177]
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affidavit. The applicants argue that the respondent's counter application
cannot be granted before the resolution of the issues raised in the
action.
(17] The issues raised in the action proceedings are, firstly, that the
agreement concluded by the parties provided for rent with an option to
purchase and that they are entitled to keep the equipment on that basis.
Secondly, they have extensively repaired the equipment at great
expense with a view of purchasing it at a later stage. They argue that ,•
should the court have a different view with regard to tne exact nature of
the agreement, the applicants will then rely on negotiorum gestio.
Thirdly, the applicants argue that the respondent misrepresented the
facts and that the misrepresentation led to the joinder of the first and
second applicants to the lease agreement. They further allege that the
respondent is opportunistic and blackmailing them for something t~e
respondent has lured them into and now seek to rely on the written
agreement which excludes the option to purchase.
[18] The applicants argue that the issues raised in action proceedings
establish a genuine dispute of fact which cannot be determined on
paper. They further argue that they have a lien right over the equipment
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and that the respondent's counter application should be dismissed with
costs on that basis. I fail to find any dispute of fact which cannot be
resolved on paper filed by the parties. The applicants simply seek to
introduce new facts in reply, without offering any explanation why those
facts were excluded in the founding affidavit.
[19] The applicant who seeks a spoliation order must prove (i) that he or she
was in possession of the property, (ii) that the respondent deprived him
or her of the possession forcibly or wrongfully against his or her consent. .•
The parties agree that the applicants were in pdssession of the
equipment before the date of the ex parte application. It is the
requirement of wrongful and forceful deprivation of possession which is
in dispute. The respondent contends that the applicants failed to prove
this requirement.
(20] Counsel for the applicants contend that deprivation of possession does
not mean that the possession of the property must have physically
passed over to the respondent. He argues that the applicants have
succeeded in proving that the respondent's actions deprived the
applicants of peaceful and undisturbed control of the property when it
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sent security guards and arranged for transportation of the equipment
from the sites.
[21) The general rule in applications is the applicant must stand and fall by
the founding affidavit and the facts alleged therein because those are
the facts that the respondent is called upon to either affirm or deny.3 The
applicants' case, as stated in the founding affidavit, and that the
respondent was called upon to answer, is that the respondent 'forcibly
seized' the equipment from the two sites. The applicants seek relief in
terms of which the Sheriff of the court is directed afld authorized to
'seize' and to 'restore to the applicants· i ts ante omnia undisturbed
possession of the equipment.
[22) It appears nowhere in the applicants' founding affidavit that they retained
physical control of the equipment. Their case was that they were
physically dispossessed of the equipment which made it impossible for
them to fulfil their responsibilities in terms of contracts they had secured.
They further contend that the dispossession exposes them to the risk of
being held liable for damages by those they have contracted with. It is
only in reply where it is stated that they have a lien right to the
3 National Council of Societies for the Preventio n of Cruelty to Animals v Openshaw 2008(5} SA339 (SCA)
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equipment. The respondent's contention that it was impossible for the
Sheriff to execute the order by seizing the equipment from the
respondent and restoring it to the applicants has merit in that the
equipment was never with the respondent.
[23] The order granted ex parte stands to be discharged in that the
applicants failed to prove the requirement of wrongful dispossession of
the equipment. The applicants' reliance on the pending civil action is
equally misplaced. The negotiorum gestio was never relied upon in the ,•
founding affidavit in the ex parte application. Furthermore, the issue of
rent with the option to purchase was not raised in the founding affidavit.
In any case, there is no clause to that effect in the written agreement
signed by the parties.
[24] The deponent to the founding affidavit and, by extension, the applicants
clearly lied about these facts. The applicants were never dispossessed
of the equipment since the commencement of the lease. The respondent
correctly argues that, had the applicants disclosed the correct facts, this
court would not have granted the order. .:.
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[25] On the counter application, counsel for the respondent contends that the
applicants have failed to prove the requirements of negotiorum gestio.
For the applicant to obtain relief based on negotiorum gestio, he must
prove that the act was performed in the respondent's interests in his
absence, without the respondent's knowledge and consent.
[26] The basis for reliance on spontaneous agency is that the applicants
were forced to repair and maintain the equipment. The applicants'
reliance on this aspect is misplaced. It is agreed in terms of the lease
agreement that the applicants will maintain and insure the equipment.
They were not doing it out of favour. Furthermore, it cannot be said that
they were doing same in the interests of the respondent. The applicants'
argument that they did so based on the alleged misrepresentation that
the agreement was for rental with option to purchase, is without merit.
As already stated above, the parties agreed to reduce their agreement
into writing and are therefore bound by it. The rent with an option to
purchase is not part of the written agreement. This contention is without
merit also on the basis that it does not form part of the founding affidavit.
The applicants further failed to attach invoices in support of the monies
they allegedly spent on repairs.
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[27] The respondent, as the applicants in the counter application, are entitled
to the return of the equipment. They remain the owner in terms of the
agreement. Furthermore, the agreement expired by effluxion of time and
has already been cancelled.
[28] The remaining issue is whether the first respondent should be reported to
the Legal Practice Council for deliberately misleading the court. Counsel
for the parties do not agree on this point. Counsel for the applicants
contends that the contents of the founding affidavit were made by a
litigants who honestly believed that their rights to posseJs the equipment
are threatened and that the ex parte application was one of the
remedies available to them. Counsel for the applicants submits that the
respondent's contention that the first applicant is an attorney of court
who is required to act with utmost good faith, particularly in ex parte
litigation is misplaced. On this point, counsel for the applicants contends
that this court should view the first applicant as an ordinary litigant who
acted on the advice of his lawyers, and not as someone who was
performing his functions as a legal practitioner.
[29] It cannot be disputed that the applicants failed to do what an applicant in
an ex parte application is expected to do as stated in National Director
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of Public Prosecutions v Basson, referred to in Recycling case
above.4 However, I find that it would be unfair to put the blame on the
shoulders of the first applicant simply because he is a lawyer by
profession. The first applicant is not representing himself, as it appears
clearly from the papers filed of record. He and his co-applicants sought
the services of an attorney who was part of the drafting of papers. He
clearly acted on the advice of his attorney. I do not agree that this is a
case where he should be reported for dishonesty. This is an issue that
can best be dealt with by a cost order.
[30] The respondent is a successful party. The general rule on costs applies.
However, I am of the view that the ex parte application was not
warranted. I am further of the view that had the applicants served the
respondent, the matter would have been held differently and costs
effectively. It is on this basis that I find that the respondent is entitled to
punitive costs.
[31] In the result I make the following order:
i. The rule nisi granted by this court in the ex parte application dated
the 23 October 2025 is dismissed and set aside.
44 2002 (1) SA419 (SCA) par 21
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ii. The Sheriff of the court or his deputy is directed and
authorized to restore into the possession of the respondent
the equipment described herein being:
Item 1: One Metso 2018 L T120 Mobile Jaw Crusher year
model 2018 serial number N3F02548.
Item 2: One Metso 2017 Locotrack L T300 Cone Crusher
year model 2017 serial number N5F01067.
iii. The applicants are ordered to pay the costs of the ex parte .•
application jointly and severally, the orte paying the other
absolved on an attorney and client scale inclusive of
counsel's costs to be taxed on scale C in so far as
applicable.
iv. The applicants are ordered to pay the costs of the counter
application jointly and severally, the one paying the other
absolved on attorney and client scale C in so far as
applicable.
MVSE YA
DEPUTY JUDGE PRESIDENT
LIMPOPO DIVISION
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For the Applicants: Adv MS Sikhwari SC with Adv S Mathabathe
Instructed by: Sibanda M Attorneys
For the Respondent: Adv L Franck
Instructed by: Etiene Van Der Merwe
c/o SVN Attorneys
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