IN THE HIGH COURT OF SOUTH AFRICA
(NORTHERN CAPE DIVISION, KIMBERLEY)
In the matter between:
OREWA YS MINING SA (PTY}L TD
and
MAGOMA ATTORNEYS
FIRST NATIONAL BANK LIMITED
Heard: 06 March 2026.
Order granted: 06 March 2026.
Reasons requested : 19 March 2026.
Reasons made available: 24 March 2026.
REASONS FOR ORDER
Tyuthuza AJ
Introduction
Case no: 2625/2024
Applicant
First Respondent
Second Respondent
1. On 6 March 2026, an order was granted in terms of which the application was
removed from the roll and the applicant was ordered to pay costs on a party
and party on scale B.
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2. On 19 March 2026, the first respondent served my office with a request for
reasons via-email.
3. What follows are the written reasons.
4. The history of the application shows that on 21 January 2025, the applicant
applied for a date for the hearing of the matter on the opposed roll in terms of
Rule 6(5) of the Rules.
5. On 24 March 2025, Nxumalo J, granted an order, wherein the first respondent
(the applicant in the interlocutory application) was granted leave to file a further
affidavit in respect of Part A and B of the main application.
6. On 25 August 2025, the applicant set down the application for hearing on
6 March 2026. The notice of set down was served on the first respondent on
25 August 2025.
7. On 3 March 2026, whilst preparing for the opposed motions to be heard on
6 March 2026, I perused the court file and realised that the papers were over
100 pages and that the parties had not filed any heads of argument, thus I was
of the view that the matter was not ripe for hearing and would not proceed on
6 March 2026. On the same day at about 12:00, the first respondent's heads
of argument were delivered to my office and according to the stamp thereon,
the heads of argument were served on the applicant at 10:45.
8. On 4 March 2026, my office was informed that the papers were not in order
and that the matter would not be proceeding and that the applicant would
tender the wasted costs. In light thereof, I was of the view that this matter would
be removed from the roll alternatively postponed and thus did not read the
papers.
9. On 6 March 2026, Ms. Sieberhagen on behalf of the applicant submitted that
the matter was not ripe for hearing, in that the applicant had not filed its heads
of argument, and that the parties had failed to comply with the practice
directives in respect of the time frames for the filing of heads of argument. It
was submitted that the applicant ought to have filed its heads of argument on
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18 February 2026 and the first respondent on 23 February 2026.
Ms. Sieberhagen submitted that the application be removed from the roll and
tendered the first respondent's costs on a party and party scale on scale A.
10. Mr. Mongala, counsel for the First Respondent, indicated that no proposal in
respect of the costs was made and further submitted that the first respondent
did not understand what the postponement was about and as such was
opposed to a postponement of the matter. He further submitted that the
application ought to be struck from the roll. In his heads of argument
Mr. Mongala submits that the matter is not ripe for adjudication on the opposed
roll and that the matter if not dismissed, calls to be struck with punitive costs
order on attorney and client scale. Mr. Mongala further submitted that the
applicant's failure to file its Heads, does not automatically deprive the court
from hearing the matter.
11. At the onset, I indicated to counsel that I did not read the papers, as I was
under the impression that the matter would not be proceeding in that the heads
of argument were not filed and that if the matter was not to be postponed, I
would need an opportunity to read the papers. I further indicated that there was
non-compliance with the practice directives in that the papers were more than
100 pages. I was of the view that the only issue at this stage between the
parties was the costs. I further indicated that the applicant had tendered the
costs, thus there would be no prejudice to the first respondent if the matter did
not proceed on 6 March 2026. Mr. Mongala insisted that I strike the application
off the roll on the basis that the first respondent complied with the practice
directives as no papers were filed in respect of Part B of the application, thus
the 100 pages was not applicable. I indicated that the court bundle consisted
of more than 100 pages and thus I was no inclined to strike the application off
the roll without having read the papers.
the roll without having read the papers.
The practice directives:
12. Rule 4 of Directive 1 of 2024 issued by the Judge President of this Division
deals with opposed applications and states that, in respect of each opposed
application, heads of arguments shall be filed with the registrar and served on
the opposing party before 12:00 on the Friday preceding the trial date or on
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behalf of the respondent before 12:00 on the Tuesday preceding the trial date
provided that in respect of long or complicated applications the heads of
argument shall be filed and served at least 12 and 9 days respectively before
the trial date.
13. Part B Rule 6.1.1 of Directive 1 of 2020 issued by the Judge President of this
Division states as follows: an application with more than 100 pages (includes
annexures to affidavits) is considered to be a long application.
14. It is common cause that this application consisted of 126 pages, thus in terms
of the practice directives of this division it is a long application and the heads
of argument were to be filed respectively 12 and 9 days prior. The applicant
had not complied in that it did not file any heads of argument, whilst the first
respondent filed heads of argument, but these heads of argument were not
filed in compliance with the practice directives. The first respondent filed its
heads of argument on 3 March 2026, two days before the matter was to be
heard and the first respondent did not seek condonation for the late filing
thereof. As such I am inclined to exercise my discretion as to how the
proceedings would be conducted.
Conclusion
15. The matter was removed from the roll, and I ordered that the applicant pay the
costs on party and party scale B. In my view the matter was not ready for
adjudication and that counsel for the first respondent conceded to this in his
written submissions.
16. It is trite that the removal of a matter from the roll is in all practical respects
akin to a postponement sine die and once an opposed matter has been set
down, unless the parties agree to the removal or postponement of the matter,
the matter cannot be unilaterally removed by one party and the discretion on
whether a matter should be removed lies with the Judge before who the matter
is enrolled. In Van der Schyff Jin Dey Street Properties (Pty) Ltd v Salentias
Travel and Hospitality CC tla Van Hobs Dry Cleaners1 it was held that a party
Travel and Hospitality CC tla Van Hobs Dry Cleaners1 it was held that a party
cannot unilaterally postpone a matter where the opposing party's consent
1 Case No 25461/21 dated 15 July 2021 Gauteng Division, Pretoria at para 5.
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cannot be obtained. It is the discretion of the court seized with an application
for postponement that prevails.
17. In the exercise of my discretion I was not inclined to strike the application off
the roll without having considered the whole matter and hearing submissions
in respect thereof. Furthermore, in respect of the costs, it is common cause
that the court makes an order of attorney and client costs in order to mark its
disapproval with the conduct of the losing party.2 Considering the fact that I
was of the view that the matter would not proceed and that the merits of the
application was not before me and not argued before me, I was not satisfied
that a punitive costs order was warranted.
18. As such, I exercised my discretion and removed the matter from the roll
because, as I alluded to above, it was not ripe for hearing and despite the fact
that the first respondent had failed to comply with the aforementioned practice
directives, I was inclined to grant costs in the first respondent's favour, as the
applicant had tendered the costs.
NOR ERN CAPE DIVISION
Appearances
On behalf of the Applicant: Adv AS Sieberhagen
On instructions of: Duncan & Rothman Attorneys
On behalf of the First Respondent: Adv J Mongala
On instructions of: Magoma Attorneys
2Public Protector v South African Reserve Bank 375 2019 (6) SA 253 (CC).