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
Not reportable
CASE NO: M415\2017
Reportable: NO
Circulate to Judges: NO
Circulate to Magistrates: NO
Circulate to Regional Magistrates: NO
In the matter between:
OSCAR JABULANI SITHOLE N.O Applicant
( in his capacity as executor of the estate
of the late Priscilla Motsoenyane)
and
MASTER OF THE NORTH -WEST HIGH
COURT : MAHIKENG First Respondent
REGISTRAR OF DEEDS : PRETORIA Second
Respondent
IMPALA PLATINUM MINE LTD Third Respondent
CAZEL PIETER ZIETSMAN Fourth
Respondent
V ALDTIME (Pty ) Ltd Fifth Respondent
JONAS R MONTSHO N.O Sixth Respondent
Coram: Matlhape AJ
Heard: 15 August 2025
Delivered: Judgment was handed down electronically by circulation to the
parties’ legal representatives by email and released to SAFLII. The date and
time for handing down of the judgment are deemed to be 1 6h00 on 23 March
2026.
Summary: Rule 41 (2) of the Uniform Rule of Court – abandonment of
judgment – judgment or order can only be abandoned by the party in whose
favour the order has been granted – order referring the matter for oral evidence
not a judgment in favour of any party – order gives direction on future conduct
of proceedings.
ORDER
1. The matter is struck off the roll.
2. Costs reserved.
JUDGMENT
MATLHAPE AJ
Introduction
[1] On 12 September 2017, t he Applicant, in his capacity as the Executor in
the Estate of the late Priscilla Matsoenyane, approached the Court by way
of application proceedings seeking the following substantive relief
against the Respondents to wit:
‘1. Declaring the sale agreement of the property f arm Wildebeest between
the 4 th and the 5 th respondents null and void due to it not being
authorised by the representatives of the deceased.
2. Alternatively, if it is found that the sale was authorized, that such
authorisation and/or consent was obtained by misrepresent ation by the
4th respondent.
3. The transfer of the property from the name of the late Priscilla Mazzoni
into the name of the 5 th respondent under title Deed number T[...] is
declared void and is set aside.
4. That the second respondent be ordered to cancel the title deed number
206752907 in the name of the 5 th respondent and to cancel all the rights
accorded to the 5 th respondent by virtue of the sale and transfer of the
property; and
5. Costs order be granted against the first, second, third, fourth and the
fifth respondents.
6. Further and alternative relief.’
[2] The matter was heard by my brother , Peters en J, who handed down
judgment and an order referring the application to oral evidence in terms
of Rule 6(5)(g) of the Uniform Rules of Court on the basis that there were
material disputes of fact which could not be resolved on affidavit.
[3] It is common cause that Petersen J made the referral order mero motu and
not on the application of either party. This is a crucial fact in this matter.
[4] Approximately two years after the aforesaid order had been granted, the
matter served before me . Counsel for the Applicant requested that this
Court determine the very same application that has already been
determined by my brother Petersen J who had handed down the aforesaid
judgment and order, referring the matter to oral evidence. The request is
to the effect that this cou rt should determine the aforesaid application on
the same papers as they were before Petersen J, including the heads of
argument, supplementary heads of argument and submissions made
during the hearing of the application. It was submitted that the Applicant
“abandons” the judgment and order referring the matter to oral evidence .
The Applicant filed a notice to abandon Judgment in terms of Rule 41 of
the Uniform Rules of court.
[5] In the Applicant’s Supplementary Heads of Argument it is stated that
‘The applicant and the 5 th respondent, through their legal representatives, filed a joint
practice note notifying the court about the abandonment of the interlocutory ruling of
Petersen J and for the application to be decided on the papers as they stand, the
applicant is dominus litis and decides how his matter should be dealt with.’
[6] I issued a directive to both legal representatives of the parties to file heads
of argument addressing the issue of whether it is competent that a party
may “abandon” judgment and order of another court referring the matter
for oral evidence.
[7] I must mention that Counsel for the Respondents immediately stated that
he would not be able to do so as he was doubtful that same can be done.
He went as far as mention ing that he would not be filing such heads of
argument and that he might even withdraw from the matter informing the
court that he might not even be in attendance on the next hearing date to
argue this point. I have since only received submissions from counsel for
the Applicant.
[8] The issue before me is whether such abandonment is competent in law,
and whether this Court may disregard the prior order granted by a
competent court.
[9] I did not deal with the merits of this matter at all.
The Order referring the matter to trial
[10] As stated herein above, o n 19 April 2023 my brother, Petersen J handed
down a comprehensive judgment and an order referring the matter to trial.
The order reads as follows:
‘(i) The matter is referred to trial.
(ii) The notice of motion shall stand a simple summons, the founding affidavit
shall stand as the plaintiff ’s declaration, the answering affidavit shall stand as
the defendant’s plea.
(iii) The witnesses relevant to the adjudication of the trial, shall be the applicant
who deposed to the founding affidavit with all witnesses who have deposed to
confirmatory affidavits; the deponent to the answering affidavit and all
witnesses w ho deposed to confirmatory affidavits on behalf of the
respondents. Any other witnesses that either party wishes to call may be called
after due notice has been given to the other side, but not less than 15 days
before trial.
(iv) Pre- Trial procedures, including discovery and the request for and provision of
trial particulars, shall be regulated by the Uniform Rules of Court in respect of
action proceedings. Discovery of documents not forming part of the
application papers shall take place in accordance with the provisions of the
Rules of Court.
(v) The parties are granted leave to invoke Rule 28 to amend their papers if they
so elect.
(vi) The issue of costs is reserved for the determination by the trial court.’
[11] The judgment dealt at length with the legal position where a matter
cannot be determined on papers due to a material dispute of fact that has
arisen. I will not revisit a plethora of case law that has been referred to in
the judgment since the applicable law is not in dispute.
[12] Significantly, in the Supplementary Heads of Argument filed by the
Applicant, it is conceded that:-
‘During argument neither of the parties asked the Court to refer the matter to oral
evidence because the applicant was satisfied with the fact that the application be
decided as motion proceedings on paper.’
Rule 41 of the Uniform Rules of Court
[13] The real issue that I have to determine is whether a party can simply
disregard an order of a competent court that has not been set aside and
more specifically whether the provisions of Rule 41 apply in a case such
as the present where the order was granted mero motu.
[14] On 18 August 2025 the Applicant filed a notice in terms of Rule 41
stating that ‘The Applicant and the Fifth Respondent abandons the judgment and
order of Petersen J in whole delivered on 19 April 2023’.
[15] Rule 41(2) of the Uniform Rules of Court states the following:
‘41. Withdrawal, settlement, discontinuance, postponement and
abandonment
(2) Any party in whose favour any decision or judgment has been given,
may abandon such decision or judgment either in whole or in part by
delivering notice thereof and such judgment or decision abandoned in
part shall have effect subject to such abandonment. The provisions of
sub-rule (1) relating to costs shall mutatis mutandis apply in the case of
a notice delivered in terms of this subrule.’
[16] The Rule is clear regarding who may abandon a decision or judgment. It
refers to any party in whose favour the decis ion or judgment has been
granted. This then means that judgment should have been granted in
favour of the either the Applicant or the Respondent. In this case, the
Judgment has not been g ranted in favour of any of the parties, therefore
neither the Applicant nor the Respondent can abandon the Judgment or
decision of the court to refer the matter to trial.
[17] In the case of Coetzer v Wesbank t/a FirstRand Bank Ltd , the court held
that1:
“An abandonment Is an election available to Westbank whether to enforce
the rights obtained in terms of the judgment or not. A mere abandonmen t
does not extinguish the existence of the judgment against the applicant ’s
name. The default judgment is final in effect and stands until it is varied,
rescinded or set aside . It is not within the power of the plaintiff to vary or
rescind a judgment. It cannot usurp the court’s role in purporting to do so
by using Rule 41(2)”.
1 2022 (2) SA 178 (GJ) at para26-27
[18] Furthermore, in Body Corporate 22 West Road v Erggold Property
Number 8 CC 2, the court, in equating abandonment of judgment to a
waiver held that:
“The waiver is a mechanism whereby a party can limit costs or distance
himself from a particular judgment, but it certainly, as I have already
indicated above, cannot be equated to a rescission or setting aside of the
judgment on appeal...”
[19] In view of the above, it is clear that the Applicant cannot abandon a
judgment that was not granted in his favour.
The effect of an order referring the matter for oral evidence
[20] In Room Hire Co (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd 3 the Court
explained that where genuine disputes of fact arise in motion proceedings,
oral evidence or trial procedures may be necessary.
[21] In this case the referral of motion proceedings to oral evidence in terms of
Rule 6(5)(g) was a judicial determination that the dispute of fact cannot
properly be resolved on the papers. It was not a judgment in favour of
either the respondent or the applicant. It is only an order to regulate future
conduct of proceedings.
[22] In Pahad Shipping CC v Commissioner, SARS a court has a wide
discretion in terms of Rule 6(5)(g) of the Uniform Rules of Court regard
to referring matters to oral evidence where application proceedings
cannot be properly decided by way of affidavit. In certain circumstances,
2 JDR 2258 at paragraph 9.
3 1949 (3) SA 1155 (T)
the court itself may decide that a matter should be referred to oral
evidence even where no application for such referral had been made4.
[23] The purported abandonment is therefore legally incompetent and of no
force or effect.
Conclusion
[24] The provisions of Rule 41(2) of the Uniform Rules of Court are not
applicable in this instance since a judgment and order referring the matter
for oral evidence is clearly not a judgment or order in favour of any of the
parties.
[25] In the absence of a proper rescission, variation, or appeal, this Court
cannot disregard or override the order.
[26] Accordingly, the matter is therefore not properly before this Court for
determination on the papers unless and until the order referring it to oral
evidence is lawfully and validly set aside.
Order
1. The application is struck from the roll.
2. Costs are reserved.
__________________________________
4 Pahad Shipping CC v Commissioner, SARS [2010] 2 ALL SA 246 (SCA) at para [20]; see
also Tryzone Fourteen (Pty) Ltd v Batchelor N.O and Others (3535/2013) [2016] ZAECPEHC 9 (4
March 2016) at para [38].
MATLHAPE B
ACTING JUDGE OF THE HIGH COURT OF SOUTH AFRICA
NORTH WEST DIVISION, MAHIKENG
Appearances:
For the applicants: Advocate Mokhare SC
Instructed by: Kutumela Sithole Inc
For second and third respondents: Adv Scholtz
Instructed by: KYRIACOU Incorporated
Date heard: 15 August 2025
Date reserved: 05 December 2025
Date handed down: 23 March 2026