(I) REPORTAUUt: ,Kl
(2) OF lff!f RE:6rTOO Tl!ERJUDGES: NO
(3} Rcl/lSEO
17 March 202S
DATE
IN THE HIGH COURT OF SOUTH AFRICA
MPUMALANGA DIVISION, MBOMBELA
SIGNATURE
In the matter between:
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CASE: 2026-034622
CHRISTO STRYDOM PHARMACEUTICAL APPLICANT
AND NATURAL MEDICINE LABORATORIES (PTY) LTD
(REG NO: 2015/451243/07)
And
KAMOSO PROJECTS CC
(REG NO.: 2010/148790/23)
TEBOGO TAPSON MAKUSHU
UNLAWFUL PERSONS ACTING THROUGH
ANO UNDER THE AUSPICES OF THE FIRST RESPONDENT
1 sr RESPONDENT
2No RESPONDENT
3Ro RESPONDENT
This judgment was handed down electronically by circulation to the parties' legal
representatives by email. The date and time for hand-down is deemed to be 17 March
2026 at 1 0h00.
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JUDGMENT
MANGENAAJ:
[1] On 16 February 2026 applicant in the main application obtained an urgent ex parte
order against the respondents. The order directed the respondents to immediately restore
possession, access and control to the applicant of all hotel rooms situated at Portion 2 of
Farm 561 Grootfonteinberg, in respect of which the locks were changed during an act of
spoliation. The order was to operate as an interim one with a rule nisi issued for 06 March
2026 at 10h00 am.
[2] The respondents filed papers in opposition and applied for the re-consideration of the
ex parte order on the basis that true facts were not placed before the court. Had the court
been aware of the true and correct facts regarding the farm and the respondent's
entitlement thereto, it would not have granted the order.
[3] In support of the contention, counsel placed reliance on a signed sale agreement
concluded between the first respondent and the joint liquidators dated 11 December 2025.
The essential terms of the agreement are that the liquidators sell to the first respondent an
immovable property known as Portion 2 of the Farm Grootfonteinberg, Registration
Division KT, Mpumalanga held by Deed of Transfer T111545/2003. The purchase price
excluding VAT was agreed at R 3 500 000.00.
[4] The respondents paid the full purchase price and in terms of clause 12 of the
agreement, possession and occupation will be given and taken subject to any existing
lease agreement, on date of delivery of guarantees of the balance of the purchase price.
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The respondents will assume sole risk, profit or loss arising out of the property from the
date of delivery of guarantees.
[5] The respondents made full payment of the purchase price inclusive of VAT by 02
February 2026. The respondents were, according to the submissions made by counsel,
entitled to take occupation of the property.
[6] This may well be so, but their possession and occupation were subject to the existing
leases over the property. It is not denied and cannot be seriously contested that
applicants were in possession of the property and conducting hotel operations there. The
respondents had no right to interfere with applicant's possession without a valid court
order and or consent of the applicant.
[7] To his credit, counsel for the respondents, Mr Roelofse conceded that the respondents
were not supposed to attend at the property with guns and seize control of the
administration and management of the hotel. He added his voice to the condemnation of
his client's conduct and agreed that the applicant was indeed spoliated of his control and
access to the property.
[8] Ordinarily, that should have been the end of the matter and as correctly pointed by Mr
Presch, all what was required was to have the rule nisi confirmed and respondents be
ordered to pay the costs including the costs of the extension of the rule nisi on Friday 06
March 2026. He urged me to order the respondents to pay costs on a punitive scale of
attorney and own client scale as their conduct was reprehensible.
[9] However, there was a difficulty in that along with the reconsideration application, the
respondents have brought a counter application for the eviction of the applicant from the
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4
property. The counter application was under the same case number as the ex parte
spoliation application. In the counter application, they argued that applicant has no legal
basis to remain in occupation of the property as the agreement upon which he relies to be
there has lapsed. I was directed to the correspondences exchanged between the
liquidators and the applicant where the applicant was informed by the liquidators that they
have elected to repudiate and terminate the contract concluded between the applicant and
the company, Forever Resort Mount Sheba (Pty) Ltd before it went into liquidation.
[1 OJ The respondents cannot be faulted for believing in the potency of their argument. The
law supports them. The principle is that a liquidator of a company in liquidation is invested
with a discretion whether to abide by or terminate an executory contract which had been
concluded by the company in liquidation before its liquidation. Such an agreement does
not terminate automatically on the company being placed in liquidation. The liquidator
must make his election within a reasonable time. Should he elect to abide by the
agreement the liquidator steps into the shoes of the company in liquidation and is obliged
to the other party to the agreement to do whatever counter-prestation is required of the
company in terms of the agreement. See Nedcor Investment Bank v Pretoria Belgrave
Hotel (Pty) Ltd, 2003 (5) SA 189 (SCA) at para 6.
[11) On the basis of the SCA authority cited above and many others, the respondents
appear to have good prospects to ultimately obtain ownership rights in respect of the
contested property. However, good prospects alone are not sufficient to earn them
declaratory orders as prayed for in their counter application. Applicant laid some hurdles
over which they had to jump before they can succeed in their application for declaratory
orders. Given the conclusion I reach, I shall only focus on the two which had some
orders. Given the conclusion I reach, I shall only focus on the two which had some
semblance of persuasive force and were pursued with vigour. The two points relate to
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non-joinder and pending business rescue proceedings in the Gauteng Division of the High
Court.
[12) Applicant says that they should have joined the liquidators to these proceedings
because, so, it is argued, they have a substantial and direct interest in that they will be
required to pass transfer. The counter argument by Mr Roelofse is that the respondents
are not asking for an order to declare them owners nor are they asking for an order to
pass transfer. All what they seek is a declaratory order that the agreement they concluded
with the liquidators is valid and binding and consequent upon it, they should be given
occupation of the property. There is therefore no need for the liquidators to be joined.
(13) Mr Roelofse is right. There is joinder of convenience and joinder of necessity. The
guiding principle is that a party should only be joined when he/she has a direct and
substantial legal interest in the outcome of the proceedings and is likely to be affected by
the order. In Bowring NO v Vrededorp Propetties CC, 2007 (5) SA 391 (SCA) para 21, the
court put the test as follows:
The substantial test is whether the patty that is alleged to be a necessary patty 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 coutt in the proceedings. If not,
there is no need for joinder. The non-joinder point is dismissed.
(14) Allied to the non-joinder point Mr Presch argued that the applicant has instituted
business rescue proceedings in Gauteng High Court and the effect thereof is that all legal
proceedings are suspended. Section 133(1) of the Companies Act 71 of 2008 provides in
unequivocal terms that no legal proceedings, including, enforcement action, against the
company or in relation to any property belonging to the company, or lawfully in its
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possession may be commenced or proceeded within any forum except with the leave of
the court.
[15) There is no dispute that there is a business rescue application pending and during the
hearing I did indicate to Mr Roelofse that this aspect is occupying a greater part of my
mind, and I cannot pre-empt the outcome of the court in Gauteng. But most importantly
section 133 places a moratorium on legal proceedings and in the absence of an
application to uplift the moratorium I cannot mero motu exercise a discretion to uplift it. In
the view I take on this matter, the respondents are handicapped in pursuit of their relief to
enforce the contract regarding the immovable property. The applicants will remain in
occupation until the provisions of section 133 are complied with. Consequently, the point
regarding the moratorium is well taken.
[16) The applicant has asked for the costs of opposing the counter application. I do not
think they should be paid costs. Applicant succeeded on a technical point which is dilatory
in nature. As alluded to above, it does not appear to me (and this is said in full deference
to the court in Gauteng which is seized with the business rescue application) that they are
on a strong footing in so far as the transfer of the property is concerned.
[17) The following order is made:
1. The re -consideration application is dismissed and the rule nisi is confirmed.
2. The respondents in the ex parte application and as applicants in the
reconsideration application are ordered jointly and severally, one paying and others
to be absolved, to pay applicant's costs in both an ex parte and reconsideration
application on a party and party scale B of the High Court tariffs including costs of
postponement on 06 March 2026.
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3. The counter application by the respondents is dismissed with no order as to
costs.
APPEARANCES:
Counsel on behalf of the Applicant:
Attorney for the Applicant:
MI MANGENA
ACTING JUDGE OF THE HIGH COURT
MPUMALANGA DIVISION, MBOMBELA
Advocate W K C Pretsch
The Club Advocate's Chambers
Mobile: 083 790 6082
E-mail:
wernerpretsch@c lubadvocates.co. za
JV Rensburg Kinsella Inc
5th Floor, Bloukrans Building
Lynwood Bridge
Corner Lynwood & Daventry Street
Lynwood Manor
Pretoria
Tel: 012 460 0008
Cell: 083 739 0825
Ref: 26/STR1/1
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Counsel for the Defendant:
Attorney for the Defendant:
Date of Hearing:
Date of delivery:
1 O March 2026
17 March 2026
E-mail: sean@jvrkinc.co.za;
C/O Du Toil Smuts Attorneys
Law Chambers, Van Niekerk Street
Mbombela
E-Mail: vkruger@dtsa.co.za
Advocate JH Roelofse
Cell: 065 353 5404
E-Mail: roelofsehenk@gmail.com
Gerrie Groenewald Attorneys Inc
Merci Dieu Office, Block B
24 Mostert Street
Mbombela
1200
Tel: 013 752 6955
Ref: Mr Jan Du ToiUHM2994
E-Mail: ian@ggattorneys.co.za;
heidi@ggattorneys.co.za
8
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OUh t.tU tlll:UHI rJL~lft_L
kU'L uuc: or .\UVI 11.\t kl(. A
IN THE HIGH COURT OF SOUTH AFRICA
MPUMALANGA DIVISION MBOMBELA (MAIN SEAT)
CASE NUMBER: 2026-034622
BEFORE HONOURABLE JUDGE: MANGENA AJ
DATE: 17 March 2026
In the matter between:
CHRISTO STRYDOM PHARMACEUTICAL
AND NATURAL MEDICINE LABORATORIES (PTY) LTD
(REG NO: 2015/451243/07)
And
KAMOSO PROJECTS CC
(REG NO.: 2010/148790/23)
APPLICANT
TEBOGO TAPSON MAKUSHU
Rl;:(J,ISTRAR OF THE 1--!tGrl COUHT OF SOUTH AFRICA
MPlll·,~~-1..ANGJI. 01\IISION,
Mf30M;:;:r.:LA (MAIN $EA
UNLAWFUL PERSONS ACTING THROUGH 3RD RESPONDENT
AND UNDER THE AUSPICES OF THE FIRST RESPONDENT
COURT ORDER
The Judge heard the matter on 10 March 2026 and electronically circulated the judgment
on 17 March 2026 and gave an order in paragraph "17" as follows:
"[17] The following order is made:
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/2
1. The re -consideration application is dismissed and the rule nisi is
confirmed:
2. The respondents in the ex parte application and as applicants in the
reconsideration application are ordered jointly and severally, one paying
and others to be absolved, to pay applicant's costs in both an ex parte
and reconsideration application on a party and party scale B of the High
Court tariffs including costs of postponement on 06 March 2026".
REGISTRAR