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
NORTH WEST DIVISION – MAHIKENG
Case No: M 310 / 2022
In the matter between:
TJ MAMPE TRADING AND PROJECTS CC PLAINTIFF
And
REGISTRAR OF DEEDS, VRYBURG 1st DEFENDANT
NORTH WEST HOUSING CORPORATION 2nd DEFENDANT
MEC OF THE DEPARTMENT OF
CO-OPERATIVE GOVERNANCE, HUMAN
SETTLEMENTS & TRADITIONAL AFFAIRS
NORTH WEST PROVINCE 3rd DEFENDANT
HEAD OF THE DEPARTMENT – THE
DEPARTMENT OF CO-OPERATIVE
GOVERNANCE, HUMAN SETTLEMENT &
TRADITIONAL AFFAIRS – NORTH WEST
PROVINCE 4th DEFENDANT
HEMCA MOTORS (PTY) LTD 5th DEFENDANT
SHELL SA (PTY) LTD 6th DEFENDANT
PREMIER OF THE NORTH WEST PROVINCE 7th DEFENDANT
MEC OF THE DEPARTMENT OF PUBLIC
WORKS, ROADS AND TRANSPORT 8th DEFENDANT
HEAD OF DEPARTMENT, DEPARTMENT
OF PUBLIC WORKS, ROADS AND
TRANSPORT – NORTH WEST 9th DEFENDANT
CORAM: MAODI AJ
Date judgment reserved: 15 August 2025
Judgment is handed down electronically by distribution to the parties’ legal
representatives by e -mail. The date that the judgment is deemed to be handed
down is 18 March 2026 at 10h00.
ORDER
1. The point in limine of lis pendens is granted.
2. The application is stayed pending final determination of the matter
under case 1026/11.
3. The applicant to pay costs on scale B, such costs to include those
consequent upon the employment of two counsel.
JUDGMENT
MAODI AJ
Introduction
[1] This is an application involving rights of ownership over immovable
property and validity of deeds of sale concluded by certain of the parties
over the said immovable property. The immovable property forming the
subject of this matter is Erf 1[...], Unit […], Mmabatho, Registration
Division JO, North West Province (the property). Although some of the
respondents filed papers, not all respondents participated or were
represented in the proceedings. Only the applicant (Mampe), the first
respondent (Registrar) and the fifth respondent (Hemca) were represented
at the hearing of the matter and to whom I will refer as stated herein . I
will refer to the other parties as cited on the notices.
Applicant’s case
[2] Mampe’s application is set out in its notice of motion as follows:
“1.The first respondent is ordered to execute the registration of the transfer of
Erf 1[...], Unit […], Mmabatho, Registration Division JO, North West
Province (“the property”( to the applicant, on the registration documents
previously lodged on its behalf;
Alternatively,
1.1The first respondent is ordered to execute the registration of the transfer of
Erf 1[...], Unit […], Mmabatho, Registration Division JO, North West
Province (“the property”) to the applicant, upon the lodgment of fresh
registration documents.
2. The first respondent is ordered to immediately remove the interdict/caveat
(i.e the right of first refusal registered against the Title Deed – Certificate of
Title Deed Number T[...] in favour of Shell SA (Pty) Ltd on the property as
per court order dated 21st July 2011 in case no: 1026/11.
3. It is declared that the applicant lawfully acquired ownership of Erf 1[...],
Unit [...], Mmabatho, Registration Division JO, North West Province (“the
property”) in April 2009.
[3] Mampe’s case as per its founding affidavit is that it seeks a mandamus
against the first respondent in respect of property on which a Shell filling
station is being operated by Hemca. On 26 March 1997 the North West
Provincial Government entered into a lease agreement with the sixth
respondent in respect of the property. The lease agreement was for a
period of five years but renewable. At some point, the sixth respondent
sub-let the property to Hemca. On 21 April 2009 the property, together
with another property cited as 1728 Unit 6 Mmabatho, were being sold by
the second respondent. Mampe signed an offer to purchase both
properties. Property 1 [...] Unit [...] Mmabatho was transferred into the
names of Mampe.
[4] On 18 May 2009 Mampe entered into a deed of sale with Hemca over the
property. In terms of Clause 3 of the deed of sale the purchase price was
R 1 200 000, 00. Hemca was required to pay a deposit of R 1 100 000, 00
to the conveyancer within 7 days of signature of the deed of sale. The sale
and transfer of the property did not materialis e as the Registrar rejected
transfer documents lodged with it on the basis that a competent certificate
of authority as required by Item 28 (1) of Schedule 6 of the Constitution
of the Republic of South Africa, 1996 had not been obtained. The
certificate w as provided on 4 May 2011 by the Director General –
Department of Rural Development and Land Reform.
[5] As the only query raised by the Registrar had been addressed, the
conveyancers lodged documents for registration. However, on 20 June
2011, the Regis trar refused to register transfer on the basis that the
Registrar was being investigated due to properties in Mmabatho and
Mafikeng being illegally disposed of by unauthorised persons. This led to
a protracted litigation under case number 1026/11 in this Division.
[6] Mampe states that it acquired ownership of the property on 21 April
2009, but only entered into a formal offer to purchase with the second
respondent on 26 March 2020. On 27 May 2021 the second respondent
issued a letter confirming that the property had been sold to Mampe in
April 2009. This was pursuant to a letter issued by the Chief Financial
Officer of the second respondent on 14 November 2019 confirming that
the property was fully paid for.
[7] The deed of sale between Mampe and Hemca lapsed on 18 May 2009 due
to Registrar’s refusal to register transfer. Mampe and Hemca have, to
date, not been able to agree on a new purchase price after a lapse of 13
years since the date of aborted deed of sale. Therefore, Hemca can no
longer be party to the registration of transfer of the property as previously
contemplated.
[8] On 21 July 2011 Madam Justice Kgoele of this Division made a court
order by agreement between the parties, under case number 1026/11, that
a ca veat/interdict be registered against the title deed (Certificate of
Township Title Deed Number T[...]) of the property in order to prevent
any alienation of the property, pending finalisation of the application
therein. There is no longer any justific ation for retention of the
caveat/interdict registered against the property in favour of the sixth
respondent by the Registrar despite case number 1026/11 still pending in
this Division. Mampe has withdrawn its participation in case number
1026/11 in order to pursue this application.
[9] On 29 July 2021 the third respondent consented to a draft order that the
Registrar execute transfer of the property to Mampe and thereafter to
Hemca. However, the said draft order was not made an order of court. On
4 August 2021 the second respondent filed its notice of withdrawal of its
defence under case number 1026/11.
First respondent’s case
[10] The Registrar ra ised two points in limine. That of lis pendens and non-
joinder. The issue of non -joinder was addressed and I see no need to
concern myself with this aspect. With regard to lis pendens, the Registrar
states that during 2013, Mampe under case number 1026/11, sought a
declarator against the Registrar to transfer the property to Mampe, and
thereafter to Hemca. The said proceedings under case 1026/11 are still
pending in this Division and have not been disposed of. Annexure
“MTL1” is the process in respect of the said proceedings. The same relief
involving the same property is being sought in casu by Mampe. In 2015
Mampe, by agreement, caused a caveat/interdict to be registered against
the title deed of the property pending finalisation of the application under
case number 1026/11.
[11] During 2016 , under case number M294/11, Mampe brought another
application against the Registrar and others for registration and transfer of
the property to itself. The matter is still pending.
[12] The property has not been registered yet and the original documents
lodged are still in a safe at the Registrar’s offices. This is because the
matter is linked to another tra nsaction forming the subject of an
investigation by the Special Investigation Unit (SIU). The property was
first registered in favour of the former Bophuthatswana Government by
certificate of title T[...]. In May 2011 the property was transferred into t he
North West Provincial Government in terms of item 28 of Schedule 6 of
the Constitution, Republic of South Africa.
[13] The first lodgment took place on 17 December 2009 and consisted of the
following four transactions:
(a) VA application for T[...] (Verlore Akte, an application for the issuing of
certified copy to replace a lost deed).
(b) Transfer of Erf 1[...] from NWPG to TJ Mampe Trading and Projects CC
for an amount of one hundred and twenty -four thousand one hundred and ten
rands (R 124 110, 00).
(c) Transfer from TJ Mampe Trading and Projects CC to Hemca Motors (Pty)
Ltd for an amount of one million two hundred thousand rands (R 1 200 000,
00).
(d) Bond by Hemca Motors in favor of Standard Bank for the sum of one
million two hundred thousan d rands (R 1 200 000, 00) over Erf 1 [...]
Mmabatho Unit [...].
[14] On 22 December 2009 the batch was rejected as item 28(1) of Schedule 6
of the Constitution was to be lodged for vesting. Following this, the
transaction was lodged on 9 June 2011 and was reject ed at lodgment due
to non-linking of batches. It was then re -lodged immediately on 9 June
2011. The batch now consisted of five transactions, namely:
(a) Item 28(1) Schedule 6 of the Constitution vesting the property on NWPG.
(b) VA application for T[...] (Verlore Akte, an application for the issuing of
certified copy to replace a lost deed).
(c) Transfer of Erf 1[...] from NWPG to TJ Mampe Trading and Projects CC
for an amount of one hundred and twenty -four thousand one hundred and ten
rands (R 124 110, 00).
(d) Transfer from TJ Mampe Trading and Projects CC to Hemca Motors (Pty)
Ltd for an amount of one million two hundred thousand rands (R 1 200 000,
00).
(e) Bond by Hemca Motors in favor of Standard Bank for the sum of one
million two hundred thou sand rands (R 1 200 000, 00) over Erf 1 [...]
Mmabatho Unit [...].
[15] On 21 June 2011 the Registrar sent an e-mail to Provincial Depart of
Public Works informing the Department of the transaction as it is practice
to do so. The Department of Public Works responded that the transfer
must not be registered. The Registrar then informed Venter Booysen and
Ferreira Attorneys that the transfer was not registered on 20 June 2011.
On 23 June 2011 the Registrar received correspondence from the
conveyancers that the transfer should be registered and attached copies of
letters from second respondent confirming sale of the property to Mampe.
The registration could not take place due to custodianship of the property
being under Department of Public Works and Roads.
[16] On 23 June 2011 the Registrar informed the conveyancers that transfer
could not be registered due to the o bjection by the Department of Public
Works and Roads . On 30 June 2011 the Registrar was served with a
notice of motion under case number 1026/11. The same notice of motion
was again served on the Registrar on 25 October 2013. On 19 October
2013 the Registr ar was served with a court order, which was recorded,
captured and filed as interdict number I -803/2015I. on 23 June 2016 the
Registrar was served with a notice of motion under case number
M294/2016.
[17] On 3 August 2020 another batch of two was lodged with the Registrar,
which consisted of two transactions, to wit:
(a) VA application in terms of Regulation 68(1) of DRA for T[...].
(b) VA application signed by MEC Mothibedi Gordon Kegakilwe on behalf of
the NWPG.
It was a transfer of the property from NWPG to Mampe. The purchase
price was now three hundred and forty thousand rands (R 340 000, 00)
with the purchase date being 3 January 2020. On 6 August 2020 the
Registrar reported this to the SIU and raised rejection notes. The batc h
was rejected out of the system on 11 August 2020. On 22 June 2022 the
Registrar was served with a notice of motion under case number
M310/22.
[18] The power of attorney was signed on different dates with different
amounts. The power of attorney dated 19 July 2009 was for an amount of
R 124 110, 00; whereas the power of attorney dated 24 June 2020 for the
same property being sold, eleven years later, was for an amount of R
340 000, 00. The 2020 offer to purchase does not have a description of
the propert y being sold. This is the reason that the matter is being
investigated by the SIU.
Second respondent’s case
[19] The second respondent, although no one appeared for it at the hearing of
the matter, filed an answering affidavit. The second respondent states that
there is a matter pending under case number 1026/11 wherein Mampe
issued an application jointly with Hemca seeking an order that the
property be transferred by the Registrar to Mampe and thereafter to
Hemca. The matter is still pending but it seem s not capable of amicable
resolution despite the second respondent having prepared a draft order
which Mampe and Hemca should have confirmed. Although the second
respondent was a party to the said application, it withdrew its opposition
of the matter. The application was converted to action proceedings.
[20] The MEC of the Department of Public Works, Roads and Transport –
North West (MEC) was joined as sixth respondent in case number
1026/11. The MEC delivered a counter application in which he sought the
setting aside and declaring as invalid the agreement of sale dated 21 April
2009 between Mampe and the second respondent. Also directing the
Registrar to cancel any transfer of the property to Mampe and to order the
second respondent to repay any considera tion received from Mampe
pursuant to the said sale. That an interim interdict be granted prohibiting
the further transfer of the property to any person or entity, other than the
State, pending the outcome of the application under case 1026/11.
[21] The caveat/interdict which Mampe seeks to remove is a result of the
counter application by the MEC under case number 1026/11. The papers
filed by the MEC under case 1026/11 show that there are serious legal
issues on whether or not the second respondent was enti tled to sell the
property to Mampe, appropriateness of the purchase price and the
position of Shell (sixth respondent) as lessee. The case under case number
1026/11 must be fully considered by the court in determining the issue of
case M310/22.
[22] The SIU has been investigating immovable property transactions between
the second respondent and Mampe as early as 2018. It is appropriate that
the Court take into account the outcome of the investigations by SIU prior
to making a ruling on this matter or the m atter under case number
1026/11.
[23] It seems the property was sold by an official purporting to act on behalf
of the second respondent in 2009. However, the second respondent
cannot confirm this as Mampe does not attach the deed of sale. It is not
known if Mampe has paid the purchase price a s it has not attached proof
of payment. It would not be appropriate to remove or uplift the caveat as
the matter under case number 1026/11 is still pending and not resolved.
[24] The Registrar filed a supplementary affidavit. The supplementary
affidavit seeks to ensure that the confirmatory affidavit by the SIU is filed
as it was not attached to the original answering affidavit of the Registrar.
The confirmatory affidavit by the SIU confirms the investigations done
by the SIU. Nothing else.
Fifth respondent’s case
[25] The fifth respondent (Hemca) states that on 21 April 2009, Mampe
entered into a deed of sale over the property with second respondent. On
18 May 2009 Mampe on-sold the property to Hemca. Mampe was to take
ownership of the property and imm ediately transfer same to the Hemca.
On 20 June 2011 t he Registrar refused to register the transfer stating that
dealings revolving around the sale of the property were being investigated
as it might have been disposed of by unauthorised persons . As result
Mampe and Hemca launched a joint application under case 1026/11 to
compel the Registrar to transfer the property. Other parties joined the case
in opposition thereof. However, all the parties have since changed and are
no longer opposing the application. Mampe has however adopted the
attitude that the property should be transferred to it alone and to the
exclusion of Hemca.
[26] Hemca has been operating a Shell fuel station from the property for the
past 27 years. The property was first registered in the name of the
Republic of Bophuthatswana under title deed T [...]. Ownership of the
property now vests with the North West Provincial Government by virtue
of s 239 of the Interim Constitution of the Republic of South Africa, 200
of 1993 read with item 28(1) of the Constitution of the Republic of South
Africa, 108 of 1996.
[27] It transpired that the Registrar refused to register the property due to the
objection by the MEC for the Department of Co -operative Governance,
Human Settlements and Traditional Affairs. A caveat was then registered
against the property as a result of a court order dated 21 July 2011 under
case 1026/11. The second respondent withdrew its opposition of the said
application. The first, second and fourth respondents also withdrew thei r
opposition of the said application. The MEC filed a notice to oppose and
counter application. The second respondent filed a re -instatement of its
opposition to the matter but subsequently withdrew same . Thereafter the
matter was referred to trial on 3 October 2013.
[28] Since then all disputes giving rise to the matter have been settled with the
MEC for the Department of Cooperative Governance, Human
Settlements and Traditional Affairs who is the successor to the MEC for
Public Works, Roads and Transpor t in North West Province. The MEC
consented to the transfer of the property to Mampe and thereafter to
Hemca. To this effect a draft order was prepared by agreement between
the parties.
[29] Hemca cannot oppose all the relief sought by Mampe, albeit for d ifferent
reasons than those proposed by Mampe. Hemca cannot raise a valid
ground opposing transfer to Mampe, but with the proviso that upon
transfer to Mampe, the property must forthwith be transferred to Hemca.
In the absence of an agreement or an order o f court allowing for transfer
of the property to be effected firstly to Mampe and thereafter to Hemca,
the condition precedent contained in the caveat/interdict will not be
fulfilled and therefore the interdict should not be uplifted.
First respondent’s case on fifth respondent’s counter application
[30] The first respondent delivered an answering affidavit to the Hemca’s
counter application that there is no agreement between the parties and
that the first respondent still persists with its opposition of the matter. The
draft order under case 1026/11 was not made an order of court and as
such the Registrar cannot register transfer of the property. The
caveat/interdict can only be uplifted upon finalisation of case 1026/11.
Applicant’s reply
[31] Mampe states that although the plea of lis pendens is valid, it does not
constitute an absolute right to the discontinuance of the proceedings
herein at this stage. The court has a discretion whether to stay or refuse to
stay the proceedings. Both convenience and equity requires that the
matter be heard and that the defence of lis pendens not be acceded to.
Mampe has spent an amount of R 340 000, 00 buying the property from
the second respondent. Should the special plea of lis pendens be granted,
the applicant will suffer prejudice since it and the Hemca have not been
able to agree to a purchase price since their deed of sale lapsed some 13
years ago. Mampe has withdrawn from case 1026/11.
Fifth respondent’s reply to first respondent’s affidavits
[32] Hemca states that it finds the opposition of the matter by the Registrar to
be of interest as she has no interest in the transfer of property. The
Registrar was expected to have filed a notice to abide as is normally done.
It set out the duties of the Registrar. A seller of property need not be the
owner. The only requirement is that the seller must be able to effect
transfer of the merx. At the time the deeds documents were lodged with
Registrar, Mampe was indeed not the owner, but having regard to all
documents lodged, it had a legitimate expectation to acquire ownership
enabling it to give immediate transfer to Hemca. Hemca delivered a
supplementary affidavit setting out the history of their involvement with
the property since 1996 with an entity called Bodisatswana.
Sixth respondent’s answering affidavit
[33] The sixth respondent (Shell) filed an answering affidavit to deal only with
costs. This is because the applicant had sought a special costs order as a
result of the sixth respondent’s failure to file its answering affidavit. At
all material times the sixth respondent had been the lessee over the
property which it sub -let to Hemca. The se cond respondent is a creature
of statute and does not possess powers to dispose of provincial state land
in terms of the Bophuthatswana Housing Corporations Act, 1982 as
amended by the North West Housing Corporation Amendment Act of
1994. The sale of the p roperty was not published in the Government
Gazzette and a newspaper circulating in the province of the proposed
disposal as required in s 3(2) of the North West Land Administrative Act
4 of 2001.
[34] The matter under case 1026/11 is still pending. The matter was opposed
and referred to oral evidence. An interdict was granted under the said
case number and is still in operation. The sixth respondent denies that the
applicant acquired ownership as alleged or at all.
The court order of 21 July 2011 under case 1026/11
[35] The court order by Kgoele J dated 21 July 2011 under case number
1026/11, which was granted by agreement between the parties , states as
follows:
(a) The third respondent has the right to file its answering affidavit within 15
days of date of this order.
(b) A caveat/interdict is to be registered against the Title Deed (Certificate of
Township Title Deed Number T[...]) of the property (Erf 1[...] Mmabatho Unit
[...], situated in the Mafikeng Local Municipality, Registration Division J .Q.;
North West Province in extent of 4137 (Four Thousand One Hundred and
Thirty Seven) square meters in order to prevent any alienation (as defined in
Section 1 of the Alienation of Land Act (Act 68 of 1981) of the property,
pending finalisation of this application.
(c)The application is postponed sine die.
(d) Costs be and is hereby reserved.
Analysis, the authorities and reasons for judgment
[36] It is common cause that the matter under case 1026/11 involved the same
parties as before me, the same lis and relief sought. The said case was
referred to oral evidence. The main question before I deal with the merits
of the case , is lis pendens . W hether the case under 1026/11 is still
pending or not, as some of the parties are of the view that the matter is
still pending, while others are of the view that the issues under the said
matter have been settled.
[37] In the case of Standard Bank of SA Ltd v Tsheola Dinare Tours and
Transport Brokers (Pty) Ltd (22011/2021) [2022] ZAGPJHC 311 (6 May
2022)at par 14, Molahlehi J, as he then was, states as follows:
“(14) The three requirements for a successful reliance on the plea of lis pendens
are
1. The litigation is between the same parties.
2. That the cause of action is the same; and
3. That the same relief is sought in both sets of proceedings”
[38] In the case of Nestle (South Africa) Pty Ltd v Mars Incorporated 2001
(4) SA 542 (SCA) (“Nestle SA”) Nugent AJA states as follows:
“[16] The defence of lis alibi pendens shares features in common with the
defence of res judicata because they have a common underlying principle which
is that there should be finality in litigation. Once a suit has been commenced
before a tribunal that is competent to adjudicate upon it the suit must generally
be brought to its conclusion before that tribunal and should not be replicated ( lis
alibi pendens). By the same token the suit will not be permitted to be revived
once it has been brought to its proper conclusion ( res judicata). The same suit,
between the same parties, should be brought only once and finally.
[17] There is room for the application of that principle only where the same
dispute, between the same partie s, is sought to be placed before the same
tribunal (or two tribunals with equal competence to end the dispute
authoritatively). In the absence of any of those elements there is no potential for
a duplication of action.”
[39] The first, second, third and sixth respondents state that the matter under
case 1026/11 is still pending. The applicant states that it withdrew from
the said matter, however, it has not attached any documents or notice to
show its withdrawal from the said case. The fifth responden t states that
the issues under the said case have been settled. However, there is no
proof that there was settlement or finalisation of the said case. In the
contrary, the applicant states at paragraphs 47 to 50 of its replying
affidavit that the case is s till pending. However, requests that given the
balance of convenience and equity, this matter be proceeded with instead
of granting the order for lis pendens.
[40] The fifth respondent states that all the parties have since changed and are
no longer opposing the application under case 1026/11. It is not true that
other parties are no longer opposing registration. There is proof that the
first, second and third respondents withdrew their opposition of the
application under case 1026/11 as per annexures AA7 and AA8 to fifth
respondent answering affidavit. However, I have not yet seen the
withdrawal by applicant (Mampe) from the said application. The fifth
respondent has not withdrawn its application under the said case or at
least no evidence has been p laced before me to that effect in the form of
notices of withdrawal. Therefore I cannot accept this submission. There is
only a purported settlement agreement in the form of a draft order which
has not been made an order of court, and to which the applicant seems to
have resiled.
[41] Wallis J in Caesarstone Sdot -Yam Ltd v The World of Marble and
Granite 2000 CC and Others 2013 (6) SA 499 (SCA) (“Caesarstone”) at
par 2, explained the doctrine of lis pendens as follows:
"[2] As its name indicates, a plea of lis alibi pendens is based on the
proposition that the dispute ( lis) between the parties is being litigated
elsewhere and therefore it is inappropriate for it to be litigated in the court in
which the plea is raised. The policy underpinning it is that there should be a
limit to the extent to which the same issue is litigated between the same parties
and that it is desirable that there be fin ality in litigation. The courts are also
concerned to avoid a situation where different courts pronounce on the same
issue with the risk that they may reach differing conclusions. It is a plea that
has been recognised by our courts for over 100 years.”
[42] The second respondent, from whom the applicant draws its powers as it
purchased the property from second respondent, has withdrawn its
opposition of the application and counter -application in case 1026/11.
The draft order was never made an order of cour t and there is no
indication that the matter was finalised. It remains pending. More so since
one of the plaintiffs (Mampe /applicant) has indicated that it disputes the
matter and has by implication resiled from the relief sought. That matter
remains pending.
[43] The other problem is, if fifth respondent says the draft order settled the
matter between the parties, why then should I make an order in the same
terms as the draft ord er in another matter. This would cause a conflict of
judgments or duplication of orders in the same dispute involving the same
parties. The fifth respondent itself states, at para graphs 5.3 to 5.8 of its
answering affidavit , that the caveat/interdict canno t be uplifted in the
absence of a court order or agreement between the parties. If there is no
court order or agreement in case 1026/11, how then is it alleged that the
issues in that matter have been settled or finalised.
[44] To add to the problem, i f the issues have been settled under case 1026/11
why is there no plea of res judicata . The applicant, on its own version as
per paragraphs 47 to 50 of its replying affidavit, has admitted lis pendens
of case 1026/11. These are the issues espoused by the courts in the Nestle
SA case and Caesarstone case supra.
[45] The first time the amount spent by the applicant in purchasing the
property arose was in its replying affidavit. Whether the deed of sale
between the applicant and fifth respondent has lapsed, is something to be
determined in the main application under case 1026/11 or this case.
Whichever proceeds at the end. App licant states that it has withdrawn
from case 1026/11 but does not attach any proof of notice to that effect. It
is also clear that the sixth respondent (Shell) has lodged or raised a
dispute of fact on the rights of the second respondent to acquire
ownership and whether there was a valid deed of sale between the
applicant and second respondent. These issues require proper v entilation
and I cannot make such determination at this stage. Given these issues,
this matter might in all likelihood have to be referred to oral evidence like
the one under case 1026/11.
[46] In Loader v. Dursot Bros (Pty) Ltd (“Loader”) 1948 (3) SA 136 (T) at
139, in dealing with this aspect, Roper J said the following:
“It is clear on the authorities that a plea of lis alibi pendens does not have the
effect of an absolute bar to the proceedings in which the defence is raised. The
court intervenes to stay one or other of the proceedings, because it is prima
facie vexatious to bring two actions in respect of the same subject matter. The
court has a discretion which it will exercise in a proper case, but it is not
bound to exercise it in every case in which a lis alibi pendens is proved to
exist ….”.
[47] In as much as the discretion is that of the court , taking the balance of
convenience and equity into consideration, and given the protracted history
of this matter, I have difficulty in coming to the rescue of the applicant to
exercise my discretion in hearing this matter. Firstly, the MEC (third
respondent), who has filed a counterclaim in the 1026 /11 case, has not
properly responded to this matter. There is also allegations that the
Department has since changed. However, to what extent that affects the
existence of the counterclaim and the pending matter, can best be ventilated
in that case. I am mindful of the fact that some of the parties filed notices to
oppose, withdrew same and filed again. This coupled with the unconfirmed
draft order.
[48] Secondly, the applicant indicates that he has withdrawn from the case
(1026/11) as a plaintiff, althou gh it has made some concessions in the said
case. Applicant has not provided any proof that it has withdrawn from the
said case. The evidence in that case, as in this case, more so since the matter
was referred to trial after initially being launched as ap plication
proceedings, shows that there is a likely dispute of facts which need to the
properly canvassed. I am not told if discovery was done in those
proceedings or not, only that the issues were settled as alleged by fifth
respondent, whereas the first respondent and others state that the matter
remains pending while the second respondent indicates , in casu , that the
said matter should be adjudicated given the legal issues raised therein, more
specifically the fact that it (second respondent) did not have capacity to sell
the property as the property belonged to the MEC for the Department of
Public Works, Roads and Transport. I find that case 1026/11 is still pending.
Costs
[49] Costs are a discretion of the court. Despite lis pendens being raised by
some of the respondents, and its own admission that case 1026/11 is still
pending, the applicant persisted in proceeding with the matter. None of
the parties have placed evidence before me showing that the case 1026/11
has been finalised in one way or the other. The applicant has not attached
any proof that it withdrew from case 1026/11. As such I can’t accept its
version on this aspect. Be that as it may, the applicant has not informed
me when it withdrew and why it withdrew from the said proceedings,
having made certain concessions on affidavit in the said proceedings. I do
not know whether the applicant withdrew before the draft order was
presented by the other parties or not. I do not know why the draft order
was not made an order of cou rt, despite the second respondent and the
MEC for Co -operative Governance, Human Settlements and Traditional
Affairs, who is said to have taken over the MEC for Public Works, Roads
and Transport having consented to the draft order. It is on these basis that
costs should follow the suit.
Order
[50] I make an order as follows:
1. The point in limine of lis pendens is granted.
2. The application is stayed pending final determination of the matter
under case 1026/11.
3. The applicant to pay costs on scale B, such costs to include those
consequent upon the employment of two counsel.
_________________________
J. T. MAODI
ACTING JUDGE OF THE HIGH COURT OF SOUTH AFRICA,
NORTH WEST DIVISION, MAHIKENG
APPEARANCES
FOR THE APPLICANT: Adv. M. I. Matlawe
Instructed by: Tjikunga & Associates Inc
e-mail: info@tjikungainc.co.za
FOR THE FIRST RESPONDENT: Adv. D. Smit
Instructed by: The State Attorney – Mmabatho
e-mail: ondabeni@justice.gov.za
FOR THE FIFTH RESPONDENT: Adv. J.P. Vorster SC
With Adv. C.A. Kriel
Instructed by: Machobane Kriel Inc
e-mail: litigasie2@machobanekriel.com
Date judgment reserved: 15 August 2025
Date of Judgment: 18 March 2026