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2026
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[2026] ZANWHC 100
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Isago @N12 Development (Pty) Ltd and Another v Government Employees Pension Fund (4657/25) [2026] ZANWHC 100 (8 April 2026)
IN
THE HIGH COURT OF SOUTH AFRICA
NORTH
WEST DIVISION, MAHIKENG
Not
reportable
Case
no:4657/25
In
the matter between:
ISAGO
@N12 DEVELOPMENT (PTY) LTD
FIRST
APPLICANT
ISAGO
PROPERTY HOLDINGS (PTY) LTD
SECOND
APPLICANT
And
GOVERNMENT
EMPLOYEES PENSION FUND
SECOND
RESPONDENT
In
re:
GOVERNMENT
EMPLOYEES PENSION FUND
APPLICANT
And
ISAGO
@N12 DEVELOPMENT (PTY) LTD
FIRST
RESPONDENT
ISAGO
PROPERTY HOLDINGS (PTY) LTD
SECOND
RESPONDENT
PUBLIC
INVESTMENT CORPORATION SOC LTD
THIRD
RESPONDENT
THE
REGISTRAR OF DEEDS, PRETORIA
FIFTH
RESPONDENT
EDWARD
NATHAN SONNENBERGS
INCORPORATED
SIXTH
RESPONDENT
Coram:
Wessels
AJ
Heard:
26
and 27 March 2026
Delivered:
This judgment was handed down electronically, circulated to the
parties’ representatives via email, uploaded to CaseLines,
and
released to SAFLII. The date and time for the handing down of the
judgment are deemed to be 10h00 on 8 April 2026.
Summary
:
Practice and procedure – Rule 35(12) – production of
documents – redacted documents – confidentiality
–
penalty clause – Rule 30A – production is the rule,
conditions are the exception – R5 million penalty
clause held
disproportionate – documents to be produced under
confidentiality regime excluding penalty clause – Scale
C costs
awarded against GEPF.
Leave
to appeal – Rule 6(5)(d)(iii) – conditional answering
affidavit filed pending Rule 30A application – court
a quo
disregarded affidavit – proper course would have been
postponement – reasonable prospects of success –
8
September orders prohibiting appeals held procedurally irregular –
impact on section 34 rights – 15 September interdict
granted
without benefit of answering affidavit – Rule 30A subsequently
granted – compelling reason under section 17(1)(a)(ii)
–
leave to appeal granted – direct appeal to Supreme Court of
Appeal – interests of justice.
Section
18(3) – suspension of interdict – R2 million monthly
interest payments – interruption of cash flow –
capital
of R306 million remains ring-fenced – GEPF has recourse against
PIC – exceptional circumstances established
– suspension
granted – costs of leave to appeal and Section 18 application
to be costs in the appeal.
JUDGMENT
Wessels
AJ
Introduction
[1]
This matter concerns four applications
for leave to appeal against a series of orders delivered by Masike
AJ, on 4, 8, and 15 September
2025. Also before me is an application
by the applicants in terms of
s 18
of the
Superior Courts Act 10 of
2013
, seeking to suspend the operation and execution of the order of
15 September 2025 pending the finalisation of the appeal process
(‘
Section 18
application’).
[2]
As will become apparent, there is a
fifth application, namely the
Rule 30A
application launched by the
applicants (collectively referred to as ‘Isago’) on 1
August 2025. The previous Court never
heard this application. It
remains pending. It is now before me, and I am required to determine
it as part of the overall disposition
of this matter.
[3]
The main protagonists in these
applications are the first applicant, Isago @N12 Development (Pty)
Ltd, the second applicant,
Isago Property Holdings (Pty) Ltd, as the
first and second respondents (collectively, ‘Isago’) and
the respondent,
the Government Employees Pension Fund (the ‘GEPF’).
It should be noted that the fourth respondent in the main
application, the City of Matlosana (‘City of Matlosana’),
although attending the proceedings, did not take part in
the
applications that were before me and indicated that their observance
of the proceedings was focused on a possible involvement
at a later
stage.
[4]
The four applications for leave to
appeal, the
Section 18
application, and the
Rule 30A
application were
heard on 26 and 27 March 2026, following directives issued by the
Hendricks JP made on 19 February 2026. I have
had the benefit of
comprehensive written heads of argument filed by all parties
concerned, extensive oral submissions, and the
voluminous record of
the proceedings (about 5600 pages in extent) that served before the
previous Court. The magnitude of issues
that had to be considered in
this matter cannot be overstated. The applications before me raised
complex procedural and substantive
issues that required careful
consideration. Although I committed to handing down this judgment on
an expedited basis, I elected
to ensure that the parties received a
fully reasoned judgment. For this reason, I regret that its delivery
has taken longer than
anticipated.
Procedural
history
[5]
The underlying dispute concerns a suite
of agreements concluded in November 2018 between the GEPF, acting
through its agent, the
Public Investment Corporation (‘PIC’),
and Isago, relating to the acquisition of a 60% undivided share in
land for
a purchase consideration of R510 million. The sale of the
land, to Isago by the City of Matlosana on 2 October 2007, was
structured
to transfer a tract of land (approximately 1,124 hectares
along the N12 highway) for development, while ensuring the City of
Matlosana
retained control over the project’s progression
[6]
A part of the suite of agreements
concluded between Isago, the GEPF and ENSAfrica consisted of an
Escrow Agreement, which provided
that R306 million of the purchase
price of the land would be held in an escrow account administered by
ENSAfrica, with the accrued
interest to be paid to Isago upon a
release notice duly executed by the GEPF.
[7]
On 5 June 2025, the GEPF launched a
two-pronged application (‘main application’). Part A of
the main application sought
urgent interdictory relief pending the
finalisation of a review application in Part B, in which the GEPF
wants to set aside the
entire suite of agreements entered into
between Isago and the GEPF. The relief sought was an order
interdicting ENSAfrica from
disbursing any further interest payments
to Isago.
Isago seeks leave to appeal
against the following orders of the previous court:
(a)
The order of 4 September 2025 upholding a point raised by the GEPF in
terms of
Rule 6(5)(d)(iii)
and directing that Isago’s
conditional answering affidavit be disregarded;
(b)
The order of 4 September 2025 refusing Isago’s application for
a postponement;
(collectively
referred to as the ‘4 September orders’)
(c)
The orders of 8 September 2025 prohibiting Isago from bringing
applications for leave to appeal
against the 4 September orders until
the proceedings were completed, and further prohibiting Isago from
appealing against that
prohibition (‘8 September orders’);
and
(d)
The order of 15 September 2025 granting the GEPF urgent interdictory
relief (‘15 September order’).
[8]
In the
Section 18
application, Isago
seeks an order suspending the operation of the 15 September 2025
interdict pending the appeal process.
[9]
Lastly, in the
Rule 30A
application,
Isago wants to compel the GEPF to produce the documents referred to
in its founding affidavit in the main application,
including the
unredacted Investment Management Agreements (‘the IMAs’)
between the GEPF and the PIC.
The
facts
[10]
The GEPF’s case in the review
application is that the 2018 sale of the immovable property was
unlawful and irrational. It
contends that Isago had purchased the
land from the City of Matlosana in 2009 under an agreement that
required Isago to develop
the land and prohibited its sale to third
parties except under specified conditions. It further contends that
its decision to purchase
was based on incorrect information provided
to the PIC, that necessary township approvals were not in place, and
that the valuation
of the property was fundamentally flawed.
[11]
Part A of the main application, brought
on an urgent basis, was set down for hearing on 8 August 2025. Isago
did not file an answering
affidavit by the deadline of 30 June 2025
set in Part A of the GEPF’s notice of motion. Instead, it
delivered three notices
in terms of
Rule 35(12)
calling for the
production of documents referred to in the GEPF’s founding
affidavit, including the IMAs between the GEPF
and the PIC.
[12]
On 16 July 2025, Isago served a notice
in terms of
Rule 30A
calling upon the GEPF to comply with the
Rule
35(12)
notices. On 1 August 2025, Isago launched a
Rule 30A
application to compel production of the outstanding documents. That
application sought an order that Isago would deliver its answering
affidavit within 15 court days of the date on which the GEPF complied
with the production of the documents sought in terms of Isago’s
Rule 35(12) notices.
[13]
The GEPF did not file an answering
affidavit to the
Rule 30A
application but did file a notice of
intention to oppose. The
Rule 30A
application essentially remained
unopposed, but the previous court had not heard it.
[14]
When the main application initially
served before Reddy J on 8 August 2025, logistical difficulties
prevented it from proceeding.
Reddy J directed that a complete set of
papers be filed and postponed the main application. The main
application was subsequently
allocated to Masike AJ (‘the
previous Court’) and was heard on 4, 8, and 15 September 2025.
[15]
On 22 August 2025, Isago delivered a
conditional answering affidavit in response to the main application,
more than six weeks after
the deadline imposed by the GEPF in Part A
of its notice of motion. The affidavit was delivered subject to the
reservation that
Isago would supplement the answering affidavit once
the relief sought in the
Rule 30A
application had been granted. No
application for condonation accompanied the filing of the conditional
answering affidavit. The
GEPF responded to the conditional answering
affidavit, on 28 August 2025, with a notice in terms of
Rule
6(5)(d)(iii).
Isago furthermore brought a postponement
application applying to postpone the main application, premised on
the production
of the documents in terms of the
Rule 30A
application.
The
4 September orders
[16]
On 4 September 2025, the previous court
heard argument on the
Rule 6(5)(d)(iii)
notice and the postponement
application and made two orders: that the conditional answering
affidavit of Isago is disregarded;
and dismissed the application for
postponement with costs (‘4 September orders’).
[17]
In the written reasons for the first
order, handed down on 16 October 2025, the previous court, inter
alia, held that Isago had
not applied for condonation for the late
filing of its answering affidavit, and that in the absence of such an
application, that
court could not come to its assistance. The
previous court relied on the principle that where a party is out of
time, it must apply
for condonation.
[18]
In the reasons for refusing the
postponement, handed down on 8 October 2025, the previous court found
that Isago’s conduct
was not bona fide and that the application
was being used as a tactical manoeuvre to delay the hearing of Part
A. The court noted
that Isago had elected to ignore the time periods
set out in the notice of motion and had failed to bring its
Rule 30A
application on an urgent basis when the opportunity arose.
The
8 September orders
[19]
When the proceedings resumed on 8
September 2025, Isago indicated that it intended to apply for leave
to appeal against the 4 September
orders. The previous court ruled
that it was undesirable for a matter to be handled in such a manner,
because the record will be
incomplete and that the application for
leave to appeal should be brought at the end of the matter. The
previous court then made
an order that Isago may not bring
applications for leave to appeal against the judgment and orders made
on 4 September 2025 until
the proceedings then pending before that
court were completed.
[20]
When Isago indicated that it would seek
leave to appeal against that very order, the previous court also
prohibited that, stating
that his earlier ruling would also apply.
The
15 September order
[21]
On 15 September 2025, the previous court
handed down its order on the merits of Part A. It found that the
matter was urgent, that
the GEPF had established a prima facie right
to the relief sought, and that the requirements for an interim
interdict had been
satisfied. It was accordingly ordered that
ENSAfrica be interdicted from disbursing any further interest
payments to Isago pending
the finalisation of the review application.
Written reasons for this order were provided on 12 December 2025.
Rule
30A:
application
[22]
Before addressing the applications for
leave to appeal, it is necessary to determine the
Rule 30A
application that is properly before this Court. Isago launched the
Rule 30A
application on 1 August 2025. It moves for an order in the
following terms:
(a)
An order that the GEPF shall, within 10 days, comply with the first
Rule 35(12)
notice served on 20 June 2025 by providing the applicants
with an unredacted copy of the IMA concluded during March 2022 as
referred
to in paragraph 13.1 of the founding affidavit;
(b)
An order that the GEPF shall, within 10 days, comply with the third
Rule 35(12)
notice served on 10 July 2025 by providing to the Isago
with: the two addenda to the IMA entered into between the GEPF and
the
PIC in 2007; and the document referred to as ‘the
Investment Portfolio Structure, Risk Parameters, Benchmark and Fees’.
(c)
An order that the documents be provided subject to a confidentiality
regime as set out in the notice of motion.
(d)
An order that Isago shall, within 15 court days of the date on which
the GEPF complies with the production orders, deliver their
answering
affidavit in the main application.
[23]
In the founding affidavit in support of
the main application, the GEPF made extensive reference to the IMAs
between it and the PIC.
In this regard, paragraph 13.1 of the
founding affidavit states:
’
13.1
GEPF and the PIC concluded an Investment Management Agreement (‘IMA’)
in terms of which PIC was granted power of
attorney by GEPF, as an
investment manager, with the authority to act as GEPF’s agent
in managing and administering GEPF’s
investment portfolio
within the constraints specified in the IMA and specifically
Annexures A & B, and subject to any policies
of GEPF which are
appended to the IMA. Given the confidentiality and sensitivity of the
information in the IMA, the same will be
made available to the above
Honourable Court under a lock and key arrangement, if necessary.’
[24]
On 20 June 2025, Isago served the first
Rule 35(12)
notice on the GEPF’s attorneys. The notice called
for production of, inter alia, the IMA referred to in paragraph 13.1
of
the founding affidavit, the power of attorney granted by the GEPF
to the PIC, the annexures to the IMA, and the policies appended
thereto. On 24 June 2025, Isago served a second
Rule 35(12)
notice
calling for production of further documents referred to in the
founding affidavit, including the PAIA request and response,
the 21
files prepared for counsel, and other documents. On 4 July 2025, the
GEPF responded. It produced a redacted version of the
2022 IMA. No
explanation was given for the redactions. No unredacted version was
produced.
[25]
On 10 July 2025, Isago addressed a
letter to the GEPF’s attorneys, noting that the redacted IMA
was inadequate and that the
founding affidavit had also referred to a
2007 IMA. Isago invited the GEPF to indicate the terms of the ‘lock
and key arrangement’
it had envisaged in its founding
affidavit. Simultaneously, they served a third
Rule 35(12)
notice
calling for production of the 2007 IMA, its addenda, and the
Investment Portfolio Structure document.
[26]
On 14 July 2025, the GEPF responded. It
stated that the request was not relevant to any triable issue in Part
A or Part B of the
GEPF’s application. It nevertheless produced
a redacted version of the 2007 IMA. Again, no explanation was given
for the
redactions. On 16 July 2025, Isago served a
Rule 30A
notice
on the GEPF, calling on it to comply with the first and third
Rule
35(12)
notices within 10 days. The GEPF did not comply. On 1 August
2025, Isago launched the
Rule 30A
application. The GEPF filed a
notice of intention to oppose on 5 August 2025. However, it did not
file an answering affidavit.
For more than seven months, the
application remained unopposed without an answering affidavit. In the
meantime, on 29 July 2025,
the GEPF’s attorneys sent a draft
‘lock and key agreement’ to Isago’s attorneys. The
terms were restrictive
in that they allowed for inspection only at
the GEPF’s offices, under supervision, with no copying
permitted. Isago rejected
this and proposed its own confidentiality
regime.
[27]
On 30 October 2025, the Hendricks JP
made an order pursuant to an agreement between Isago and the GEPF.
Paragraphs 3 to 5 of that
order provided:
‘
3.THAT:
In respect of Part B of the Review Application and subject to
paragraphs 4 and 5 below, the First Respondent (‘the
GEPF’),
will produce the documents in respect of which production is sought
in the
Rule 30A
application, under a confidentiality regime to be
agreed in writing between the GEPF, the First Applicant (Isago @N12)
and the
Second Applicant (Isago Holdings)
.
4.
THAT: The GEPF will produce the documents in respect of which
production is sought in the
Rule 30A
application, under the agreed
confidentiality regime, within 10 days after the date on which the
confidentiality regime is agreed
in writing.
5.
THAT: If the GEPF, Isago@N12 and Isago Holdings are unable to agree
to the confidentiality regime, then any of the parties shall
be
entitled to approach the Office of the Judge President for a
preferential hearing of the interlocutory application on a date
to be
determined by the Office of the Judge President.’
[28]
On 13 November 2025, Isago’s
attorneys wrote to the GEPF’s attorneys, attaching a draft
confidentiality agreement and
requesting a response by 14 November
2025. The GEPF’s attorneys responded on 14 November 2025,
stating that it was considering
the proposal and would revert as soon
as possible. No substantive response followed. On 26 November 2025,
Isago again requested
a response. None was forthcoming.
[29]
On 26 January 2026, Isago again wrote to
the GEPF’s attorneys, reminding them of the Judge President’s
order and requesting
their changes to the confidentiality agreement
by 22 January 2026. The letter warned that if no agreement was
reached by 23 January
2026, Isago would approach the Judge President
for a hearing date. In a letter dated 22 January 2026, the GEPF’s
attorneys
responded. They provided a draft Non-Disclosure Agreement
that contained, for the first time, a penalty clause. Clauses 9.1.2
and
9.1.3 provided:
‘
9.1.2
to demand payment of a penalty for such breach in the amount of R5
million from the Receiving Party
9.1.3
The penalty for breach shall be payable by the Receiving Party to the
Disclosing Party within 15 days from the date on which
the breach
occurred.’
[30]
The penalty clause had not appeared in
any earlier draft. It was not mentioned in the GEPF’s founding
affidavit or in any
of its previous correspondence. It appeared for
the first time on 22 January 2026, more than seven months after the
first
Rule 35(12)
notice and nearly six months after the
Rule 30A
application was launched.
[31]
On 30 January 2026, Isago responded,
raising concerns about the penalty clause and other aspects of the
draft Non-Disclosure Agreement.
Isago enquired whether the GEPF was
insistent on retaining the penalty clauses. The GEPF responded on 5
February 2026, stating
that ‘[t]he penalty is a subject of
negotiation as between the parties’ and inviting Isago to table
a counter-proposal.
On 4 March 2026, Isago wrote again, stating:
‘
Our
clients view the imposition of the unreasonable conditions to the
disclosure of documents which form the subject matter of the
NDA, to
constitute an ongoing oppression of our clients’ legal
entitlements and the continued insistence on the part of your
client,
to deprive ours of their rights to a fair hearing.
For
example, clauses 9.1.2 and 9.1.3 impose unreasonable conditions to
our clients’ entitlement to have access to the documents
concerned.
Our
clients one last time implore your client to, without the imposition
of draconian terms, make these necessary documents available.
Please
indicate whether your client will agree to the deletion of clauses
9.1.2 and 9.1.3 of the NDA to enable us to take final
instructions.’
[32]
No substantive response was received. On
10 March 2026, Isago approached Hendricks JP for a preferential
hearing date. The matter
was allocated to me for hearing on 26 and 27
March 2026. On 20 March 2026, three court days before the hearing,
the GEPF delivered
its answering affidavit in the
Rule 30A
application. The answering affidavit runs to 21 pages and sets out
the GEPF’s opposition.
Rule
30A:
the legal framework
[33]
Rule 35(12) of the Uniform Rules
provides that any party to any proceeding may at any time before the
hearing thereof deliver a
notice as near as may be in accordance with
Form 15 in the First Schedule to any other party in whose pleadings
or affidavits reference
is made to any document or tape recording to
produce such document or tape recording for his inspection and to
permit him to make
a copy or a transcription thereof.
[34]
The
purpose of Rule 35(12) was described in
Protea
Assurance Co Ltd v Waverley Agencies CC
[1]
as follows:
‘
That
Rule plainly entitles a litigant to see the whole of a document or
tape recording and not just the portion of it upon which
his
adversary in the litigation has chosen to rely. That entitlement,
unlike the entitlement to general discovery for which Rule
35(1)
provides, does not arise only after the close of pleadings in a trial
action, or after both answering and replying affidavits
have been
filed in motion proceedings: it arises as soon as reference is made
in the pleading or affidavit to a document or tape
recording. It is
inherent in that that a litigant cannot ordinarily be told to draft
and file his own pleadings or affidavits before
he will be given an
opportunity to inspect and copy, or transcribe, a document or tape
recording referred to in his adversary’s
pleading or
affidavits.’
[35]
The
Supreme Court of Appeal (‘SCA’) has emphasised that a
court’s discretion in terms of Rule 35(12) is not unfettered.
In
Caxton
and CTP Publishers and Printers Limited v Novus Holdings Limited
[2]
, the SCA held that where
documents are referenced, relevant, and not privileged, the
application for their production must, in
the ordinary course,
necessarily succeed. Confidentiality alone does not permit refusal;
it merely justifies the imposition of
appropriate limits.
[36]
This
approach was affirmed by the Constitutional Court in
Independent
Newspapers (Pty) Ltd v Minister for Intelligence Services (Freedom of
Expression Institute as Amicus Curiae) In re:
Masetlha v President of
the Republic of South Africa and Another
[3]
,
wherein it was held that where there is a claim of confidentiality
over information sought to be discovered, a court has a discretion
to
impose appropriate limits to balance the competing interests.
[37]
In
Democratic
Alliance and Others v Mkhwebane and Another
[4]
The SCA confirmed that documents in respect of which there is a
direct or indirect reference in an affidavit or its annexures,
that
are relevant, not privileged and are in the possession of the party
from which they are requested, must be produced. It was
further held
that where a party relies on a document in an affidavit, that
reliance is a primary indicator of relevance. The right
conferred by
Rule 35(12) is a procedural right that underpins the constitutional
right to a fair trial under s 34 of the Constitution.
A party that
refers to a document in an affidavit cannot refuse to produce it on
the ground that it is confidential, unless it
is privileged.
Confidentiality is not a bar to production; it is a matter to be
managed by an appropriate confidentiality agreement,
not by a refusal
to produce.
[38]
This
procedural right gives effect to the constitutional guarantee of a
fair trial under s 34 of the Constitution. A litigant cannot
be
expected to answer a case without sight of the documents on which the
opposing party relies. In
Vodacom
(Pty) Ltd v Makate
[5]
the Constitutional Court emphasised the importance of procedural
fairness in ensuring that a litigant’s right to a fair hearing
is not hollowed out by procedural obstruction.
Rule
30A: analysis
[39]
The GEPF’s founding affidavit
makes extensive reference to the IMAs. The IMAs are central to its
case. The founding affidavit
in support of the main application
states that the IMA constitutes the necessary authority for the PIC
to conclude transactions
on behalf of GEPF. The GEPF applies for
relief against the PIC in Part B. To this extent, the IMAs are
plainly relevant. The GEPF
has produced only redacted versions of the
IMAs and has provided no explanation for the redactions and has not
claimed privilege.
It has not identified any valid objection to
production.
[40]
The GEPF’s assertion that the IMAs
are not relevant to any triable issue in Part A or Part B is
untenable. The IMAs govern
the relationship between the GEPF and its
agent, the PIC. The GEPF seeks to set aside the transactions based on
the PIC’s
alleged negligence and misconduct. The IMAs define
the scope of the PIC’s authority and the terms of its mandate.
On this
pretext, the IMAs are relevant. Even if the IMAs were not
relevant to Part A (a proposition I need not decide), they are
undoubtedly
relevant to Part B. The GEPF cannot pick which parts of
its application the IMAs are relevant to. As it has referred to the
IMAs,
it must produce them.
[41]
The
GEPF is not doing Isago a favour by agreeing to produce the
documents, it is fulfilling a legal obligation. As was held in
Protea
Assurance
[6]
,
the right to inspect arises as soon as reference is made to the
document. It is not conditional on the disclosing party’s
willingness to do so.
[42]
The parties have agreed on all aspects
of the confidentiality regime except two clauses: 9.1.2 and 9.1.3,
which impose a R5 million
penalty for breach. The GEPF argues that
the penalty clause is an appropriate mechanism to protect its
commercially sensitive information.
Isago argue that it is draconian
and unreasonable.
[43]
In my view, the penalty clause is not
appropriate in the context of court-ordered discovery. Firstly, the
GEPF already has adequate
protection, as set out in clause 9.1.1 of
the Non-Disclosure Agreement, which provides for interdictory relief.
If the Isago breach
the confidentiality regime, the GEPF can approach
the court for an interdict. Any order made by this court is
enforceable by contempt
proceedings. The GEPF also has a claim for
damages if it suffers loss as a result of a breach. The penalty
clause adds nothing
to these remedies except a financial deterrent.
Secondly, the penalty clause is disproportionate. R5 million is a
substantial sum,
not linked to any estimate of potential loss. Any
breach would trigger it, however insignificant. This is not a
liquidated damages
clause that represents a pre-estimate of loss; it
is a penalty in the true sense. Thirdly, the timing of the penalty
clause is
telling. It was not mentioned in the GEPF’s founding
affidavit, nor was it mentioned in its initial ‘lock and key’
proposal of 29 July 2025. It appears for the first time on 22 January
2026, more than seven months after the first Rule 35(12)
notice. This
casts doubt over the GEPF’s bona fides in introducing the
penalty clause as a genuine protection measure. Fourthly,
the GEPF’s
delay in producing the documents undermines its claim to equitable
relief. Isago have been requesting these documents
since June 2025,
but the GEPF has resisted throughout. It has now, on the eve of the
hearing, introduced a penalty clause as a
condition of production.
These actions of the GEPF do not bear the hallmarks of good-faith
negotiations.
[44]
The
principle laid down in
Caxton
[7]
is that production is the rule, conditions are the exception. Where
conditions are imposed, they must be reasonable and necessary.
A
penalty clause of R5 million for breach of a confidentiality regime
in litigation is not necessary. The existing remedies are
sufficient.
Where conditions are imposed, they must be reasonable and necessary,
and a court must be careful not to place undue
or unnecessary limits
on a litigant’s right to a fair hearing.
[45]
The GEPF filed a notice of intention to
oppose on 5 August 2025 and filed an answering affidavit only on 20
March 2026. The application
is therefore opposed. However, the
opposition is narrow in that the GEPF does not oppose the production
of the documents, it opposes
only the deletion of the penalty clause.
The delay in producing the documents and the late introduction of the
penalty clause are
factors that this Court may take into account in
exercising its discretion under Rule 30A. In substance, the GEPF
seeks to impose
an unjustified condition on production. Isago is
entitled to production without that condition.
[46]
The parties have agreed on all other
aspects of the confidentiality regime. The agreed terms are set out
in Isago’s draft
of 13 November 2025, which was annexed to the
Rule 30A application. The GEPF has not objected to any of those terms
except the
penalty clause.
[47]
In these circumstances, it is
appropriate to order that the documents be produced under the
confidentiality regime proposed by Isago,
which excludes the penalty
clause.
Rule
30A: costs
[48]
The GEPF has delayed the production of
these documents for nine months. It failed to file an answering
affidavit in the Rule 30A
application for more than seven months and
introduced the penalty clause late, prolonging the resolution of the
dispute. It has
caused Isago to incur unnecessary costs.
[49]
In these circumstances, the GEPF should
pay the costs of this application as Isago has been substantially
successful. The costs
should be on Scale C, as the matter is complex
and has demanded the attention of senior counsel.
Application
for leave to appeal: the 4 September order
[50]
Having determined the Rule 30A
application, I now turn to the applications for leave to appeal. The
first two applications concern
the 4 September order: the order
disregarding Isago’s conditional answering affidavit, and the
order refusing Isago’s
postponement application.
[51]
In
my view, the determination of the Rule 30A application alters the
backdrop against which these orders must be assessed. Isago’s
conditional answering affidavit was filed on 22 August 2025, more
than six weeks after the deadline of 30 June 2025. On the face
of it,
this was clear non-compliance. However, the conditional answering
affidavit was filed in the context of a pending, unopposed
Rule 30A
application that expressly sought an extension of time for the
delivery of the answering affidavit. The legal principles
governing
this situation are derived from
Potpale
Investments (Pty) Ltd v Mkhize
[8]
and
Caxton
[9]
.
In
Potpale,
it was held that the delivery of a Rule 35(12) notice does not
automatically suspend time limits. The court stated the following:
‘
The
delivery of the rule 35 notice did not suspend the period in which
the defendant was obliged to deliver a plea or other document
referred to in rule 22. When he was confronted with a rule 26
notice, he was put to an election. He could either have done
his best
to plead and so have defeated the bar or he could have applied to
extend the time within which to plead and to compel
production of the
documents for that purpose. If he had pleaded, it would have been
open to him to apply to compel delivery of
the documents and, if so
advised, to thereafter seek to amend his plea.’
[52]
In
Caxton
[10]
the SCA approved the mechanism for launching a Rule 30A application
coupled with an express prayer seeking an extension of time.
The
court stated at paragraph 78:
‘
There
is nothing in the language of rules 35(12) and 30A to suggest that
once a demand has been made for the production of the documents
to
which the rule 35(12) notice relates, the party seeking such
documents is excused from complying with the timeframes prescribed
in
terms of Uniform Rule 6(5)(d)(ii)[66] or 6(5)(e),[67] as the case may
be. In Potpale Investments (Pty) Ltd v Mkhize,[68] Gorven
J rightly
observed that the delivery of a notice in terms of rule 35(12) or
(14) does not suspend the period referred to in rule
26 or any other
rule. Whilst there is much to be said for the view expressed by the
learned Judge, sight should however not be
lost of the fact that it
is open to the court, in the exercise of its discretion, to extend
the time periods prescribed in terms
of the rules whenever a proper
case therefor has been made out by the party seeking such indulgence.
Indeed, this is what Uniform
Rule 27 itself contemplates.’
[53]
Isago seem to have done precisely what
Caxton
endorsed.
It filed a Rule 30A application that included an express prayer for
an extension of time. The GEPF did not oppose it.
The application was
pending before the same court when the previous Court made the orders
of 4 September 2025.
[54]
Isago’s argument that the previous
court was aware of the Rule 30A application and that it was unopposed
is compelling. The
GEPF argues that the Rule 30A application was not
set down for hearing and therefore could not be considered pending in
a procedural
sense. This is a compelling counterargument, but it does
not address the fundamental point, namely that the previous court was
seized of a formal, unopposed application for an extension of time.
The proper course, in my view, would have been to postpone the
main
application pending the determination of the Rule 30A application.
[55]
Instead, the previous court disregarded
Isago’s conditional answering affidavit without considering the
existence of the pending
application for extension of time, and
refused Isago’s postponement application. In my opinion, Isago
has reasonable prospects
of success on appeal.
[56]
Accordingly, leave to appeal against the
4 September orders is granted.
The
application for leave to appeal: the 8 September orders
[57]
The
8 September orders are controversial. While I fully appreciate the
legitimate concern of the previous court about avoiding piecemeal
litigation and ensuring that appeals do not disrupt the orderly
progress of proceedings, the orders made went significantly further.
The orders of 8 September 2025 prohibited Isago from bringing
applications for leave to appeal against the 4 September order until
the proceedings were completed and further prohibited Isago from
appealing against that prohibition. The right of appeal is a
fundamental aspect of the right of access to courts enshrined in s 34
of the Constitution. A court has the power to control its
own
processes and to discourage piecemeal litigation. In
Take
& Save Trading CC and Others v The Standard Bank of SA Ltd
[11]
, the SCA remarked:
‘
A
judge is an administrator of justice, he is not merely a figure head,
he has not only to direct and control the proceedings according
to
recognised rules of procedure but to see that justice is done.’
The same applies to civil proceedings: a judge is not
simply a
‘silent umpire’.A judge is not a mere umpire to answer
the question “How’s that?” Lord Denning
once said.
Fairness of court proceedings requires of the trier to be actively
involved in the management of the trial, to control
the proceedings,
to ensure that public and private resources are not wasted, to point
out when evidence is irrelevant, and to refuse
to listen to
irrelevant evidence. A supine approach towards litigation by judicial
officers is not justifiable either in terms
of the fair trial
requirement or in the context of resources.’
[58]
The
SCA further remarked
[12]
:
‘
In
any event, an appeal
in
medias res
in the event of a
refusal to recuse, although legally permissible, is not available as
a matter of right and it is usually not
the route to follow because
the balance of convenience
more often than not requires
that the case be brought to a conclusion at the first level and the
whole case then be appealed.’
[59]
This statement recognises that while
appeals in the course of proceedings are not generally encouraged,
they are not prohibited.
In my opinion, the 8 September orders did
not merely regulate the hearing of the application(s) before the
previous court, they
prohibited Isago from bringing such applications
for leave to appeal at all. When Isago indicated that it would seek
leave to appeal
against that prohibition, the previous court also
prohibited such an appeal. The 8 September orders may generally
impact on Isago’s
constitutional rights entrenched in s 34 of
the Constitution. Isago makes a strong argument for the position that
these orders
were procedurally irregular and have reasonable
prospects of success on appeal.
[60]
Resultantly, leave to appeal against the
8 September orders is granted.
The
application for leave to appeal: the 15 September order
[61]
The 15 September order granted the GEPF
urgent interdictory relief in terms of Part A of its application,
interdicting ENSAfrica
from disbursing any further interest payments
to Isago pending the finalisation of the review proceedings. The GEPF
contends that
the interdict was correctly granted on the merits. It
argues that it established a prima facie right to protect pension
fund assets,
that it would suffer irreparable harm if the interest
payments continued, that the balance of convenience favoured
preservation
of the funds and that it had no alternative remedy.
[62]
However, the 15 September order was
premised on the procedural framework brought about by the earlier
orders. Isago’s conditional
answering affidavit was
disregarded. Its Rule 30A application (which sought an extension of
time) was not taken into account and
its postponement application was
refused. The result was that the previous court hearing, Part A, did
so without the benefit of
Isago’s version of the facts.
[63]
Having now granted the Rule 30A
application, Isago will, in due course, be entitled to file its
answering affidavit. The foundation
upon which the 15 September 2025
interdict was granted may be fundamentally altered. There is
therefore a compelling reason, within
the meaning of
section
17(1)(a)(ii)
of the
Superior Courts Act, why
the appeal should be
heard. In any event, Isago has reasonable prospects of success on
appeal against the 15 September order.
[64]
In the result, leave to appeal is
granted.
Appeal
forum
[65]
Given the complexity of the legal issues
raised, the substantial public interest in the proper administration
of justice, and the
fact that this matter involves novel questions
regarding the interplay between
Rule 30A
and
Rule 6(5)(d)(iii)
, I am
of the view that it is appropriate for any appeal to lie directly to
the Supreme Court of Appeal rather than to the Full
Court of this
Division. The interests of justice favour a direct appeal to the
Supreme Court of Appeal, which is best placed to
provide definitive
guidance on these procedural questions and to ensure the expeditious
finalisation of this protracted litigation.
In terms of
section
16(1)(a)
of the
Superior Courts Act, read
with
section 17(2)(d)
,
leave to appeal to the Supreme Court of Appeal is accordingly granted
Section
18
application
[66]
Isago applies for an order suspending
the operation and execution of the 15 September 2025 interdict
pending the finalisation of
the appeal process. The interdict,
granted by the previous Court, restrains Edward Nathan Sonnenbergs
Incorporated from disbursing
any further funds from the escrow
account to Isago, effectively ceasing monthly interest payments of
approximately R2 million.
Section
18
application: legal framework
[67]
Section
18(1)
of the
Superior Courts Act
[13
]
provides that the operation and execution of a decision which is the
subject of an application for leave to appeal or of an appeal
is
suspended pending the decision of the application or appeal. This is
the default position.
Section 18(3)
permits a court to order
otherwise, that is, to put an order into operation pending appeal,
only if the party seeking such relief
proves, on a balance of
probabilities:
(a)
that it will suffer irreparable harm if the court does not so order;
and
(b)
that the other party will not suffer irreparable harm if the court so
orders.
[68]
In
Incubeta
Holdings and Another v Ellis and Another
[14]
the court held that the following in relation to exceptional
circumstances:
‘
Necessarily,
in my view, exceptionality must be fact-specific. The circumstances
which are or may be ‘exceptional’ must
be derived from
the actual predicaments in which the given litigants find themselves.
I am not of the view that one can be sure
that any true novelty has
been invented by
Section 18
by the use of the phrase. Although that
phrase may not have been employed in the judgments, conceptually, the
practice as exemplified
by the text of
Rule 49(11)
, makes the notion
of the putting into operation an order in the face of appeal process
a matter which requires particular ad hoc
sanction from a court. It
is expressly recognised; therefore, as a deviation from the norm, ie
an outcome warranted only ‘exceptionality’.
[69]
Although
the enquiry is fact-based as set out in
Incubeta
,
the SCA in
University
of the Free State v Afriforum and Another
[15]
clarified that the enquiry is not a mechanical one. The prospects of
success on appeal are relevant to the question of whether
exceptional
circumstances exist, and the court must weigh all relevant factors,
including the nature of the relief granted and
the potential for
prejudice to either party. The court stated the following:
‘
It
is further apparent that the requirements introduced by
ss 18(1)
and
(3) are more onerous than those of the common law. Apart from the
requirement of ‘exceptional circumstances’ in
s 18(1)
,
s
18(3)
requires the applicant ‘in addition’ to prove on a
balance of probabilities that he or she ‘will’ suffer
irreparable harm if the order is not made, and that the other party
‘will not’ suffer irreparable harm if the order
is made.
The application of
rule 49(11)
required a weighing-up of the
potentiality of irreparable harm or prejudice being sustained by the
respective parties and where
there was a potentiality of harm or
prejudice to both of the parties, a weighing-up of the balance of
hardship or convenience,
as the case may be, was required.
Section
18(3)
, however, has introduced a higher threshold, namely proof on a
balance of probabilities that the applicant will suffer irreparable
harm if the order is not granted and conversely that the respondent
will not, if the order is granted.’
[70]
Autumn
Skies Resources and Logistics (Pty) Ltd v Genet Manganese (Pty) Ltd
In re: Genet Manganese (Pty) Ltd v Minister of Mineral
Resources and
Others
[16]
the full court emphasised that the irreparable harm enquiry is a sine
qua non: if either question is answered in the negative,
the
existence or non-existence of exceptional circumstances is moot. Only
once the irreparable harm hurdle is crossed does the
court proceed to
consider whether exceptional circumstances justify the deviation.
Section
18
application: nature of the 15 September order
[71]
Before considering the
section 18
application, it is necessary to determine the nature of the order
that is the subject of the applications for leave to appeal.
Mr
Konstantinides SC, who appeared for Isago, submitted that this Court
must expressly state whether it finds the 15 September
order to be
final in effect or interlocutory in nature. I agree that this
determination is essential, as it concerns both the test
for leave to
appeal and the procedural consequences for the
s 18
application.
[72]
The 15 September order, granted by the
previous court, interdicts and restrains ENSAfrica from disbursing
any further portion of
the funds held under its control and
administration pursuant to the Escrow Agreement to Isago or any other
party pending the finalisation
of the review application in Part B.
Of importance is that the order does not dispose of the review
application itself. It is an
interdict pendente lite, granted to
preserve the status quo and protect the funds pending the final
determination of the parties’
rights in the review proceedings.
[73]
In
Zweni
v Minister of Law and Order
[17]
,
the SCA held that for an order to be appealable as a judgment or
order, it must have three attributes: it must be final in effect
and
not susceptible to alteration by the court of first instance; it must
be definitive of the rights of the parties; and it must
have the
effect of disposing of at least a substantial portion of the relief
claimed in the main proceedings. Importantly, as the
Constitutional
Court held in National Treasury v Opposition to Urban Tolling
Alliance
[18]
, the test for
appealability is now included within the broader interests of justice
standard. An interim order may be appealable
even if it does not
possess all three attributes, if the interests of justice so require.
[74]
Applying these principles, I find that
the 15 September 2025 order is interlocutory in nature as it does not
ultimately determine
the parties’ rights. It does not dispose
of the review application, and it is capable of being altered by the
court of first
instance as circumstances change. The aforementioned
are all hallmarks of an interlocutory order.
[75]
However,
an interlocutory order may nonetheless be appealable if the interests
of justice require it. In
United
Democratic Movement and Another v Lebashe Investment Group (Pty) Ltd
and Others
[19]
,
the Constitutional Court held that an interim order restricting free
speech was sufficiently invasive and far-reaching that it
was in the
interests of justice for the grant of the interim order to be treated
as a decision for the purposes of
s 16(1)(a)
of the
Superior Courts
Act. The
court found that an interdict restricting free speech
constitutes a grave intrusion on a constitutional right, and where
there
is a likelihood that the life of the interim interdict might be
extended even longer than it had already existed, it was sufficiently
invasive and far-reaching that it was in the interests of justice for
the grant of the interim order to be appealable
[20]
.
[76]
Similarly, in the present application,
the interdict halts the payment of the monthly interest amounting to
approximately R2 million.
It affects Isago’s ability to meet
its ongoing obligations and to continue its development projects. The
interdict has been
in place since September 2025, and absent an
appeal, it would remain in place pending the finalisation of the
review proceedings,
a process that could take many months, if not
years. In these circumstances, the interests of justice dictate that
the order be
appealable, notwithstanding its interlocutory nature.
[77]
Having found that the order is
interlocutory but appealable in the interests of justice, the test
for leave to appeal under
s 17(1)(a)
of the
Superior Courts Act
applies
. I have already granted leave to appeal, having found
reasonable prospects of success and compelling reasons to hear the
appeal.
[78]
Because the order is interlocutory and
not final, the default position under
s 18(2)
of the
Superior Courts
Act is
that its operation and execution are not suspended pending the
appeal. Isago accordingly bears the onus in terms of
s 18(3)
to prove
that it will suffer irreparable harm if the interdict is not
suspended, and that the GEPF will not suffer irreparable
harm if it
is suspended. I turn now to consider that application.
[79]
As I have already granted leave to
appeal in respect of the 15 September 2025 interdict, the question
now is whether that interdict
should be suspended pending the appeal.
In resolving this question, I must apply the two-stage test set out
above.
Section
18
application: irreparable harm to Isago
[80]
Isago argues that it will suffer
irreparable harm if the interdict is not suspended. The interest
payments that have been halted
were its primary source of income. The
cessation of these payments, it submits, has halted development
projects, eliminated employment
opportunities, and left it unable to
meet ongoing expenses.
[81]
In
Masinga
and Others v Chief of the South African National Defence Force and
Others
[21]
it was held that dire personal financial circumstances, including the
threat of losing houses and motor vehicles, are sufficient
to
establish irreparable harm for purposes of
s 18(3).
In brief, the
court recognised that the applicants, who were members of the SANDF,
were in a disadvantageous position compared
to other employees
because they were excluded from the speedy dispute-resolution
procedures provided for in the Labour Relations
Act. This, in itself,
constituted exceptional circumstances warranting the enforcement of
the order pending appeal.
[82]
The present case is analogous. Isago has
placed evidence before this Court that it is a development company
whose operations depend
on the regular flow of funds from the escrow
account. The interdict has effectively halted its ability to meet its
obligations.
While the GEPF disputes the extent of the alleged harm,
I accept that the interruption of cash flow of this magnitude,
approximately
R2 million per month, constitutes irreparable harm in
the sense contemplated by
s 18(3).
In my assessment, I also take into
account that Isago has been receiving interest payments since shortly
after the conclusion of
the sale agreement with the GEPF – a
period of more than 6 years. If the interdict remains in place
pending the appeal, and
Isago ultimately succeeds in the review
proceedings, the harm it has suffered during the interim period
cannot be undone.
Section
18
application: absence of irreparable harm to GEPF
[83]
The GEPF argues that it will suffer
irreparable harm if the interdict is suspended, as the funds may not
be recoverable if the review
succeeds. It points to Isago’s
refusal to provide security or guarantees, and argues that the
indemnity from the PIC does
not cover recovery of the principal
amount.
[84]
I do not agree with this submission. The
capital amount of R306 million remains ring-fenced in the escrow
account. No part of the
capital has been disbursed to Isago. The
interdict, to which I have granted leave to appeal, prevents further
disbursements of
interest. If the interdict is suspended, the
interest payments would resume. But critically, they would accrue to
the benefit of
whichever party ultimately succeeds in the review
proceedings. If the GEPF succeeds in the review, it will have
recourse to the
capital amount. If Isago succeeds, it will be
entitled to the accrued interest.
[85]
Moreover, as I have found herein on the
Rule 30A
issue, the GEPF has recourse against the PIC under the IMAs.
While the full scope of the indemnity may be disputed, the GEPF has
not established that it would have no recourse at all. For the
purposes of the
Section 18
application, it is sufficient to find that
the GEPF has some recourse against the PIC and that the capital
amount remains preserved.
This supports the finding that the GEPF
will not suffer irreparable harm if the interdict is suspended
pending appeal.
Section
18
application: exceptional circumstances
[86]
Having found that Isago will suffer
irreparable harm if the interdict is not suspended, and that the GEPF
will not suffer irreparable
harm if it is suspended, I turn to the
question of whether exceptional circumstances exist to justify the
deviation from the default
position.
[87]
The following circumstances, taken
together, are exceptional:
(a)
The GEPF has been directed to produce the unredacted Investment
Management Agreements and related documents under a confidentiality
regime. These documents are central to the review proceedings. Isago
has not yet had the opportunity to file its answering affidavit
in
the review application. The
Rule 30A
judgment will now clear the path
for that to occur.
(b)
The
Rule 30A
judgment has altered the procedural landscape. The
GEPF’s conduct in withholding the documents and in introducing
the penalty
clause as a condition of production has caused
significant delay. It would be unjust to maintain the interdict
pending the appeal
when Isago has not yet been afforded a full
opportunity to answer the case against it.
(c)
The capital amount remains secure. The GEPF’s concern about
recoverability is addressed by the preservation of the R306
million
in the escrow account. The suspension of the interdict prejudices no
party, as the interest payments, if they resume, will
simply accrue
to the benefit of the ultimate successful party.
[88]
In
Incubeta
Holdings
[22]
,
the court held that the forfeiture of substantive relief due to
procedural delays constitutes exceptional circumstances warranting
the operation of an order pending appeal. In that case, a restraint
of trade order was granted pending the appeal because the short
duration of the restraint would otherwise expire before the appeal
process was exhausted. The court stated the following
[23]
:
‘
In
my view the predicament of being left with no relief, regardless of
the outcome of an appeal, constitutes exceptional circumstances
which
warrant a consideration of putting the order into operation. The
forfeiture of substantive relief because of procedural delays,
even
if not protracted in bad faith by a litigant, ought to be sufficient
to cross the threshold of ‘exceptional circumstances.’
[89]
The same principle applies in the
present application. If the interdict remains in place pending the
appeal, Isago will be deprived
of the benefit of the interest
payments for a prolonged period. Even if it ultimately succeeds in
the review, there is a strong
possibility that the harm caused by the
interruption of its cash flow might not be fully compensable in
damages. This is precisely
the kind of predicament that
s 18(3)
is
designed to address.
Section
18
application: conclusion
[90]
Having granted leave to appeal, and
having determined that Isago is entitled to file its answering
affidavit after production of
the documents, the balance of
convenience favours suspension of the interdict pending the appeal.
The capital amount of R306 million
remains ring-fenced. If interest
payments resume, they will accrue to the benefit of whichever party
ultimately succeeds in the
review proceedings. The GEPF, if it
succeeds in the review, will have recourse to the capital amount and
to the PIC under the IMAs.
The
Section 18(3)
application is
accordingly granted.
Costs
[91]
The GEPF has opposed all applications
for leave to appeal and has been unsuccessful in its opposition.
However, there is no clear
aspect of the facts before me to justify
deviating from the usual rule that the costs of the application for
leave to appeal should
be costs in the appeal. The
Section 18
application is intimately connected to the applications for leave to
appeal. Both arise from the same underlying dispute and seek
relief
that is contingent on the outcome of the appeal process. In these
circumstances, the costs of the
Section 18
application shall also be
costs in the appeal.
Order
[92]
In the premises, I make the following
order:
A.
Rule 30A
application
1.
Production of Documents
a.
The respondent shall, within 10 days of
the date of this order, comply with the first
Rule 35(12)
notice
served by the applicants on 20 June 2025, by providing the applicants
with an unredacted copy of the Investment Management
Agreement
concluded during March 2022 as referred to in paragraph 13.1 of the
founding affidavit deposed to by Mr Musa Mabesa on
26 May 2025.
b.
The Respondent shall, within 10 days of
the date of this order, comply with the third
Rule 35(12)
notice
served by the applicants on 10 July 2025, by providing to the
applicants:
i.
The two addenda to the Investment
Management Agreement entered into between the Respondent and the
Public Investment Corporation
SOC Ltd in 2007, as referred to in
paragraph 7.2 of the statement of Mr Abel Sithole; and
ii.
The document referred to as ‘the
Investment Portfolio Structure, Risk Parameters, Benchmark and Fees’
as referred to
in paragraph 7.3 of the statement of Mr Abel Sithole.
2.
Confidentiality Regime
a.
The documents referred to in paragraphs
1.1 and 1.2 above shall be provided subject to the confidentiality
regime set out in annexure
‘K’ to the founding affidavit
in the
Rule 30A
application, which regime is hereby adopted as an
order of court.
b.
For the avoidance of doubt, clauses
9.1.2 and 9.1.3 of the draft Non-Disclosure Agreement circulated by
the respondent (GEPF) on
22 January 2026 are not part of the
confidentiality regime and shall not be enforced.
3.
Extension of Time
a.
The applicants shall, within 15 court
days of the date on which the respondent complies with paragraphs 1.1
and 1.2 above, deliver
their answering affidavit in the main
application under case number 4657/2025.
4.
The respondent shall pay the costs of
this application on Scale C.
B.
Applications for leave to appeal
5.
Leave to appeal is granted to the
applicants against the whole of the order made by Masike AJ on 4
September 2025 in terms of which
the conditional answering affidavit
of the applicants was disregarded.
6.
Leave to appeal is granted to the
applicants against the whole of the order made by Masike AJ on 4
September 2025 dismissing the
applicants’ application for
postponement.
7.
Leave to appeal is granted to the
applicants against the whole of the orders made by Masike AJ on 8
September 2025, prohibiting
the applicants from bringing applications
for leave to appeal until the proceedings are completed and
prohibiting them from appealing
against that prohibition.
8.
Leave to appeal is granted to the
applicants against the whole of the order made by Masike AJ on 15
September 2025, granting the
relief sought in Part A of the main
application.
9.
Leave to appeal, as granted in
paragraphs 5 to 8 herein is granted to the Supreme Court of Appeal.
10.
The costs of the applications for leave
to appeal shall be costs in the appeal.
C.
Section 18
application
11.
The operation and execution of the order
made by Acting Judge Masike on 15 September 2025 are hereby suspended
with immediate effect
pending the finalisation of the appeal process.
12.
Costs shall be costs in the appeal.
M
WESSELS
ACTING
JUDGE OF THE HIGH COURT
NORTH
WEST DIVISION, MAHIKENG
Appearances
For
applicants
:Adv
N Konstantinides SC
Instructed
by
:Van
Hulsteyns Attorneys
:Sandown
:c/o
Labuschagne Attorneys
:Mahikeng
For
second respondent
:Adv
C Erasmus SC
:Adv
T Motau SC
:Adv
R Tshetlo
Instructed
by
:Norton
Rose Fulbright South Africa Inc
:Sandton
:c/o
Tlou Attorneys
:Mahikeng
For
fourth respondent
:Adv
N Laubscher
:Lourens
Bezuidenhout Inc
:Klerksdorp
:c/o
Maree & Maree Attorneys
:Mahikeng
[1]
Protea
Assurance Co Ltd v Waverley Agencies CC
1994 (3) SA 247
(C) 249B-D.
[2]
Caxton
and CTP Publishers and Printers Limited v Novus Holdings Limited
(219/2021)
[2022] ZASCA 24
;
[2022] 2 All SA 299
(SCA) (9 March 2022)
para 79.
[3]
Independent
Newspapers (Pty) Ltd v Minister for Intelligence Services (Freedom
of Expression Institute as Amicus Curiae) In re:
Masetlha v
President of the Republic of South Africa and Another
(Independent (CCT38/07)
[2008] ZACC 6
;
2008 (5) SA 31
(CC);
2008 (8)
BCLR 771
(CC) (22 May 2008) para 27.
[4]
Democratic
Alliance and Others v Mkhwebane and Another
(1370/2019)
[2021] ZASCA 18
;
[2021] 2 All SA 337
(SCA);
2021 (3) SA
403
(SCA) (11 March 2021) para 28.
[5]
Vodacom
(Pty) Ltd v Makate
[2025] ZACC 13.
[6]
Op cit
fn1.
[7]
Op cit
fn 2.
[8]
Potpale
Investments (Pty) Ltd v Mkhize
(11711/2014) [2015] ZAKZPHC 55;
2016 (5) SA 96
(KZP) (15 December
2015) para 23.
[9]
Op cit
fn 2.
[10]
Op cit
fn2 para 85.
[11]
Take
& Save Trading CC and Others v The Standard Bank of SA Ltd
(21/2003)
[2004] ZASCA 1
;
2004 (4) SA 1
(SCA);
[2004] 1 All SA 597
(SCA) (27 February 2004) para 2.
[12]
Op
cit
fn
11 para 4.
[13]
Superior
Courts Act 10 of 2013
.
[14]
Incubeta
Holdings and Another v Ellis and Another
(2013/ 30879) [2013] ZAGPJHC 274;
2014 (3) SA 189
(GSJ) (16 October
2013) para 22.
[15]
University
of the Free State v Afriforum and Another
(929/2016)
[2016] ZASCA 165
;
[2017] 1 All SA 79
(SCA);
2018 (3) SA
428
(SCA) (17 November 2016) para 10.
[16]
Autumn
Skies Resources and Logistics (Pty) Ltd v Genet Manganese (Pty) Ltd
In re: Genet Manganese (Pty) Ltd v Minister of Mineral
Resources and
Others
(47060/2017) [2019] ZAGPPHC 559 (25 October 2019) para 26.
[17]
Zweni
v Minister of Law and Order
1993 (1) SA 523
(A) 532I-533A.
[18]
Constitutional
Court held in National Treasury v Opposition to Urban Tolling
Alliance
2012 (6) SA 223
(CC) para 25.
[19]
United
Democratic Movement and Another v Lebashe Investment Group (Pty) Ltd
and Others
(CCT 39/21)
[2022] ZACC 34
;
2022 (12) BCLR 1521
(CC);
2023 (1) SA
353
(CC) (22 September 2022).
[20]
Ibid
para
46.
[21]
Masinga
and Others v Chief of the South African National Defence Force and
Others
(51/2021)
[2022] ZASCA 1
;
[2022] 4 BLLR 305
(SCA); (2022) 43 ILJ 805
(SCA);
[2022] 2 All SA 399
(SCA) (5 January 2022).
[22]
Op cit
fn14.
[23]
Op
cit
fn14
para 27.