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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NO: 2025-132793
In the matter between:
MUSTAFA MOHAMED N.O. First Applicant/
First Intervening Party
JOHAN FRANCOIS ENGELBRECHT N.O. Second Applicant/
Second Intervening Party
JOHN NGOATLANA MZIMBA N.O. Third Applicant/
Third Intervening Party
[In their capacities as the duly appointed joint
liquidators of Africa Consult (Pty) Ltd previously
known as Toro Ya Africa Consultants (Pty) Ltd
(in liquidation) (Reg. No: 2003/011055/07)
Master’s Ref No. M000333/19]
and
SEKGOBO MORRIS MOTAUNG
(Registration No. 855743) First Respondent
THE REGISTRAR OF DEEDS, PRETORIA Second Respondent
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED.
06/03/2026
DATE SIGNATURE
NORTH-WEST HOUSING CORPORATION Third Respondent
TORO YA AFRICA (PTY) LTD Fourth Respondent
PARK VILLAGE AUCTIONEERS Fifth Respondent
In Re:
CASE NO: 2025-132793
In the matter between:
SEKGOBO MORRIS MOTAUNG Applicant
and
THE REGISTRAR OF DEEDS, PRETORIA First Respondent
NORTH-WEST HOUSING CORPORATION Second Respondent
TORO YA AFRICA (PTY) LTD Third Respondent
PARK VILLAGE AUCTIONEERS Fourth Respondent
and
MUSTAFA MOHAMED N.O. First Intervening Party
JOHAN FRANCOIS ENGELBRECHT N.O. Second Intervening Party
JOHN NGOATLANA MZIMBA N.O. Third Intervening Party
[In their capacities as the duly appointed
Joint liquidators of Africa Consult (Pty) Ltd
Previously known as Toro Ya Africa
Consultants (Pty) Ltd (in liquidation)
(Reg. No: 2003/011055/07)
Master’s Ref No: M00033/19]
This judgment was prepared and authored by the Judge whose name is
reflected and is handed down electronically by circulation to the parties’
legal representatives by e -mail and uploading it to the electronic file of
this matter on Caselines. The date and time of hand -down is deemed to
be 10:00 on 6 March 2026.
J U D G M E N T
TEFFO, J:
Introduction
[1] The first respondent launched an ex parte application on an urgent
basis in this Court under the above -mentioned case number in terms of which
he sought an order that the second respondent be interdicted from registering
the property on Erf 3[...], Zone 9, Ga -Rankuwa (“the property”) to any person
other than him and that he be authorised to transfer the property into his
names (“the main application”).
[2] On 26 August 2025 this Court granted the urgent application and
interdicted the second respondent from reg istering the property to any person
other than the first respondent. The court further issued a rule nisi returnable
on 22 October 2025 calling upon the respondents to show cause why the
order should not be confirmed.
[3] Before me is an application by the joint liquidators of Africa Consult Co
(Pty) Ltd previously known as Toro Ya Africa Consultants (Pty) Ltd (“ Toro”) (in
liquidation) (“ the applicants ”) seeking leave to intervene in the main
application and anticipate the return date issued by this Court o n 26 August
2025. They further seek to oppose the relief sought in the main application in
terms of Rule 6( 8) of the Uniform Rules of Court on an urgent basis and/or a
reconsideration of the order granted on 26 August 2025 in terms of Rule
6(12)(c) of the Uniform Rules of Court.
[4] The application is only opposed by the first respondent.
The parties
[5] The applicants are Mustafa Mohamed N.O. (the first applicant), Johan
Francois Engelbrecht N.O. (the second applicant) and John Ngoatlana
Mzimba N.O. (the third applicant). They will be referred to collectively as the
liquidators.
[6] The first respondent is an adult male person who is currently residing
at the property. He was the applicant in the main application. For the sake of
convenience in this application, he will be referred to as Mr Motaung.
[7] The second respondent in this application and the first respondent in
the main application is the Registrar of Deeds, Pretoria. He has been cited in
his official capacity. He will conveniently be referred to as the “Registrar”.
[8] The third respondent in this application and the second respondent in
the main application is the North -West Housing Corporation. It is an entity of
the State responsible for the development and sale of the properties in the
North-West Province of South Africa. It will conveniently be referred to as the
“Housing Corporation”.
[9] The fourth respondent and third r espondent in the main application is
Toro Ya Africa (Pty) Ltd. Where necessary it will be referred to as “Toro”.
[10] The fifth respondent and fourth respondent in the main application is
Park Village Auctioneers. They will be referred to in this applica tion as the
auctioneers.
Background
[11] In terms of a deed of sale concluded by and between the Housing
Corporation and Mr Motaung on 22 April 2002, the Housing Corporation sold
and Mr Motaung purchased the property for the sum of R17 775,00
(seventeen thousand seven hundred and seventy-five rand). Mr Motaung also
took occupation of the property.
[12] He alleges that pursuant thereto, he made two payments to the
Housing Corporation for the purchase price in the amounts of R1 000,00 on
10 September 2007 and R16 700,00 on 10 June 2008 respectively.
[13] In terms of annexure MM5, an e xtract from the database of the
Registrar, the same property was purchased by Toro on 4 October 2006 and
registered into its name on 22 November 2007.
[14] Africa Consult Co (Pty) Ltd, previously known as Toro was placed in
final winding -up by a special re solution which was later converted to a
compulsory winding-up order by the court. Toro, during its existence inter alia
conducted various developments of local housing units (RDP housing) for
government institutions. It also acted as a contractor on variou s
developments. It acquired various pieces of land which were either
developed and/or rezoned, sub -divided and thereafter sold or sold prior to
development.
[15] All the developments conducted by Toro showed remarkable losses
and caused institutions such as the Industrial Development Corporation
(“IDC”) to lose investments made in the developments with Toro to the tune of
more than R300 000 000,00 (three hundred million rand).
[16] This prompted the liquidators to approach the North -West High Court
to inter alia approve the enquiries in terms of sections 417 and 418 of the
Companies Act 61 of 1973 (“ the old Companies Act ”) to ascertain the modus
operandi of Toro and investigate the extent of its losses suffered when
conducting the developments and the r easons thereof. The liquidators also
sought an order declaring Toro unable to pay the debts in terms of section
388 of the old Companies Act. The order was eventually granted on 9 May
2024.
[17] During the enquiries and when administering the estate of To ro, it
came to the attention of the liquidators that Toro concluded various
agreements for the sale and purchase of the erven and that the various erven
which included amongst others, the property which forms the subject -matter
of this application, were registered in the names of Toro.
[18] The liquidators have by way of administration steps taken, sold the
property to Tshidumo Projects.
[19] Mr Motaung alleges that in May 2025 he learnt that various immovable
properties in Zone 9, Ga -Rankuwa were to be auc tioned. He later saw an
advertising Billboard on one of the streets indicating that immovable
properties in the area were to be auctioned. He later learnt from the members
of the Steering Committee that was e stablished to enquire and resolve the
issue, that his property was also enlisted to be auctioned.
[20] Mr Motaung further alleges that he contacted an official of the
auctioneers, Ms Debbie Scholes, and requested the details about the auction.
Ms Scholes informed him that the auctioneers were only acti ng as agents on
instructions of Zenande Trust. On 27 May 2025 Ms Scholes referred him to an
official of Toro whom he attempted to contact without success.
[21] He avers that on 19 July 2005 while at his residence, he was
approached by three persons who inf ormed him that they had purchased the
property on auction and gave him a month to vacate the property.
[22] This led to the launching of the main application.
The liquidators’ case
[23] The liquidators raise the following issues in this application:
23.1 That this application is urgent.
23.2 They request leave to intervene in the main application.
23.3 In the event they succeed with the application to intervene, they
seek anticipation of the return date and reconsideration of the
main application. They rely on the provisions of Rule 6(8) and
Rule 6(12)(c) of the Uniform Rules of Court.
23.4 They further request the rule nisi to be discharged and that the
main application be dismissed.
[24] They contend that the basis for the intervention, the request for the rule
nisi to be discharged, and the main application dismissed is the following:
(a) that Mr Motaung is not the registered owner of the property.
(b) They as representing the insolvent estate of Toro are the registered
owners of the property which ownership has been in existence for
almost 18 years.
(c) In terms of insolvency law, they validly and legally sold the property
on auction.
(d) The urgent ex parte application launched by the applicant should
never have been launched on an ex parte basis and was never
urgent.
(e) The main application as it stands suffers from various material and
patent defects.
[25] They also deal with the requirements for an interdict.
Discussion
Urgency
[26] In dealing with urgency the liquidators contend that they have launched
this application because the main application was never served on them and
the order of 26 August 2025 only came to their attention through an e -mail
sent by the auctioneers. They claim that the immovable properties resorting
within Toro in liquidation have been sold in a group to a third party for such
developer to commence with the developments in those properties. They
assert that if one property does not form part of the developments, the whole
intended development may collapse.
[27] They claim that it is a fait accompli that a new purcha ser could cancel
the agreement in respect of all the properties if this property in question poses
to be an issue.
[28] It was submitted in the heads of argument filed on their behalf that the
estate of Toro (in liquidation) will not obtain substantial red ress in due course
because by then the purchaser of the erven would have cancelled the sale
leaving the estate with a massive loss.
[29] It was further submitted that the creditors require payment of their
claims and have been held up by the irregular inte rdict granted in favour of Mr
Motaung in the main application. The y claim that the administration of the
estate cannot be concluded whilst the interdict is still in existence and neither
can the sale transaction be finalised.
[30] Furthermore, it was subm itted that the situation is aggravated by the
fact that Mr Motaung is not the lawful owner of the property and no case has
been made for the interdict against the sale and transfer of the property. They
assert that Toro has been the owner of the property since October 2006, the
property rights and the right to ownership of the estate is trampled by the
interdict which should never have been granted. They contend that for this
reason the interdict must be urgently discharged to ensure that the estate
rights are restored.
[31] It appears from the papers that Mr Motaung filed his replying affidavit
outside the time frames that were given. The respondents sought an order to
strike out the replying affidavit in that it was filed late.
[32] The intervention appl ication and the answering affidavit to the main
application were served on Mr Motaung’s legal representatives by email on 30
September 2025 at 09:35. In terms of the notice of motion for the intervening
application, Mr Motaung was required to notify the l iquidators’ attorneys in
writing on/or before 30 September 2025 by close of business at 16:00 of his
intention to oppose the application; and then file his affidavit in answer to the
allegations made in the intervening application on/before 2 October 2025 at
10:00.
[33] The so -called replying affidavit by Mr Motaung is dated 3 October
2025. There is no indication as to when it was filed. At the time I heard the
matter, it was already filed. It is important to note that when I heard the
application all papers were filed and the issues were fully ventilated. I do not
find any valid reason to strike out the replying affidavit of Mr Motaung as
alluded to by the liquidators.
[34] I note from the replying affidavit of Mr Motaung that the urgency of the
intervention application was not challenged. The allegations made regarding
the urgency thereof remain uncontested. Consequently , I find that the
application is urgent.
Should the liquidators be allowed to intervene in the main application?
[35] The liquidators contend that they have a substantial and direct interest
in the subject -matter of the main application and the outcome thereof . They
should therefore be allowed to intervene in these proceedings for the following
reasons:
(a) not only was Toro cited as the third respondent in the main
application, Toro is also the registered owner of the property in
question.
(b) They have by way of ad ministration steps taken, sold the
immovable property to a purchaser/developer who has not been
joined in these proceedings.
[36] In reply , Mr Motaung contends that the main application was not
instituted against the liquidators (the intervening parties). He claims that the
liquidators lack locus standi to intervene in these proceedings. Mr Motaung
further contends he would not have initiated an action against the purchaser
of the property who was not known to him. He concedes that he learnt of the
liquidators from the auctioneers but avers that the information was hearsay
and it has now been confirmed by the liquidators.
[37] Rule 12 of the Uniform Rules of Court provides that any person entitled
to join as a plaintiff or liable to be joined as a defenda nt in any action may, on
notice to all parties, at any stage of the proceedings apply for leave to
intervene as a plaintiff or defendant. The court may upon such application
make such order, including any order as to costs, and give such directions as
to further procedure in the action as to it may seem meet.
[38] Our courts have held that a party is entitled to intervene as a plaintiff or
defendant in an action where:
(a) it has a direct and substantial interest in the right that is the subject -
matter of t he action, which could be prejudiced by the judgment of
the court. The interest must be such that the intervenor’s joinder is
either necessary or convenient. But the possibility that a legal
interest exists is sufficient, and it is not necessary for the c ourt
positively to determine that it exists.
(b) The allegations made by the intervening applicant constitute a
prima facie case or defence. It is, however, not necessary for the
intervenor to satisfy the court that it will succeed in its case or
defence. It is sufficient for the party seeking to intervene to rely on
allegations which if they can be proved in the main action would
entitle it to succeed. In assessing the intervenor’s standing, then,
the court must assume that the allegations it advances are true and
correct; and
(c) the application is made seriously and is not frivolous.1
[39] It is common cause between the parties that Mr Motaung is not the
registered owner of the property. The registered owner of t he property is Toro
in liquidation. He concedes in his papers that when he enquired about the
auction of the property from Ms Scholes of the auctioneers, he was referred to
Zenande Trust whom he was not successful in reaching for information. Had
1 Peermont Global (KZN) (Pty) Ltd v Afrisun (KZN) (Pty) Ltd t/a S ibaya Casi no and
Entertainment Kingdom and Others and a related matter [2020] 4 All SA 226 (KZP) at para 18
and the cases cited herein
he manag ed to contact Zenande Trust, he would have found information
about the liquidation of Toro which was only cited as a party not in liquidation
in the main application.
[40] I do not agree that the liquidators do not have locus standi to intervene
in the proceedings. I am satisfied that there is a possibility that a legal interest
exists by virtue of the fact that Toro in liquidation is the owner of the property
that is the subject -matter of the main application. The liquidators therefore
have a direct and s ubstantial interest in the right that is the subject -matter of
the main application which could be prejudiced by the order of court. Under
the circumstances leave is granted to the liquidators to intervene as parties in
the main application.
Anticipation of the return date and reconsideration of the order of 26 August
2025
[41] Rule 6(8) of the Uniform Rules of court provides that any person
against whom an order is granted ex parte may anticipate the return day upon
delivery of not less than twenty-four hours’ notice.
[42] Uniform Rule 6(12)(c) provides that any person against whom an order
was granted in such person’s absence in an urgent application may by notice
set down the matter for reconsideration of the order.
[43] The jurisdictional facts establishing the discretion provided are:
(a) the granting of the order in the absence of the party affected
thereby.
(b) by way of urgent proceedings as intended under Rule 6(12).2
[44] The court has a wide discretion to redress the imbalance and
injustices and oppression flowing from an order granted on urgency and in the
absence of the other party.3
Shortcomings in the ex parte urgent application
[45] The liquidators contend that the founding affidavit in the main
application does not address any grounds to have approached this Court on
urgent and ex parte basis. In reply thereto, Mr Motaung claim that if the main
application was brought in the ordinary cause, there was a likelihood of the
property being registered in the office of the registrar to his prejudice.
[46] There is merit in the submission by the liquidators that nowhere in the
founding affidavit in the main application does Mr Motaung address the
reasons why the main application was brought ex parte and on an urgent
basis. However, the application was eventually granted. Mr Motaung’s reply in
the replying affidavit regarding this issue is immaterial. It does not assist his
case as he cannot make a case in the replying affidavit. I agree that the ex
parte urgent application should not have been granted.
Non-joinder of the liquidators and the purchaser of the property
[47] The liquidators claim that Mr Motaung was aware from his version that
Zenande Trustees instructed the sale of the property and that T oro was
liquidated. Further that the liquidators who conducted its administration
2 Sheriff Pretoria North-East v Flink [2005] 3 All SA 492 (T)
3 Chesterfin (Pty) Ltd v Contract Forwarding (Pty) Ltd an d Others 2002 (1) SA 155 (T) 162
overruled by Contract Forwarding (Pty) Ltd v Chesterfin (Pty) Ltd 2003 (2) SA 253 (SCA)
through the offices of Zenande were appointed. Furthermore, he should have
known that the immovable properties were being sold pursuant to the
insolvency of Toro.
[48] In the founding affidavit in the main application, Mr Motaung avers that
Ms Scholes of the auctioneers informed him that the auctioneers were only
acting as the agents on the instruction of Zenande Trust. He was also referred
to the officials of Toro.
[49] The fact that he was aware that his property was enlisted amongst the
immovable properties which were to be auctioned, should have led him to
Zenande Trust a s the auctioneers ’ official, Ms Scholes informed him
according to his version that the auctioneers were acting on the instructions of
Zenande Trust.
[50] Mr Motaung concedes that he learnt from the auctioneers that his
property was put on sale and that the sale was directed through Toro. He
further says he could not have brought the application against the person
unknown to him. This also applies to the non -joinder of the purchaser of the
property.
[51] Mr Motaung alleges that people approached him at his residence and
informed him that they were the owners of the property and he must vacate
the property. He never took their names and/or request information from
them.
[52] From his own version, it is evident that he knew that Zenande Trust
had instructed the auctioneers to put his property on sale. Furthermore, when
he launched the main application, he was aware that his property was sold.
On his version, he should have ensured that Zenande Trust and the
purchaser of the property were joined in the application.
The interdict
[53] The liquidators further contend that the relief sought by Mr Motaung in
the main application is final in nature. Furthermore, they submit that in the
founding affidavit none of the requirements for a final interdict were discussed.
[54] A reading of the notice of motion of the main application attest to the
fact that the relief sought was not an interim interdict but a final one.
[55] The requirements for a final interdict are trite.4 In order to succeed the
applicant must establish such requirements. They are:
(a) a clear right.
(b) injury actually committed or reasonably apprehended; and
(c) the absence of similar protection by any other remedy.
[56] The clear right to be proved is a right to which, if not protected by an
interdict, irreparable harm would ensue. 5 Quite apart from the right to an
interdict, the applicant should demonstrate a right that is threatened by an
impending or imminent irreparable h arm. An interdict is meant to prevent
future conduct and not the past.
4 Setlogelo v Setlogelo 1914 AD 221 at 227
5 OUTA para 50 footnote 1
[57] The liquidators contend that Mr Motaung has no clear right since he is
not the owner of the property. He is also not the title holder of the property.
Toro in liquidation is the t itle holder and therefore the lawful owner of the
property.
[58] In the replying affidavit Mr Motaung alleges that he has been in
occupation of the property for more than a decade. He claims that he took
occupation of the property through a deed of sale fr om the Housing
Corporation. Further that under common law of contract, he became the
purchaser and occupier. He further claims to have a clear right and a
constitutional right to housing from which he cannot be unlawfully evicted
without an order of court.
[59] Mr Motaung concedes that he is not the registered owner of the
property. He therefore has no clear right to the property. As confirmed in
Herbert N.O. and Others v Sengu Municipality and Others 6, a permission to
occupy does not confer ownership on the holder of such document. The issue
of eviction is not before court. In any event Mr Motaung cannot be unlawful ly
evicted from the property by the purchaser as the law precludes such unlawful
eviction.
Injury actually committed or reasonably apprehended
[60] The liquidators submit that Mr Motaung will not suffer any harm if he is
not the owner of the property. However, should the developer/purchaser
decide to cancel the contract of sale, serious lo sses will be sustained by the
concursus creditorium of Toro. They further claim that the property forms an
6 2019 (6) SA 231 (CC)
integral part of the intended development by the new purchaser. The intended
purchaser could cancel all the agreements if the issue with this proper ty
persists.
[61] Mr Motaung claims to have made developments on the property.
[62] I agree with the liquidators that the harm to the estate is severe.
Further that the constitutional right to property and ownership is unduly
infringed by the interdict without justification. There is merit in the liquidator’s
submission that the prejudice and harm the estate suffers because of the
interdict far outweighs that of Mr Motaung.
Absence of similar protection by any other remedy
[63] The liquidators contend that Mr Motaung has an alternative suitable
remedy. Mr Motaung contends that the purchaser bought the property for
R30 000,00 when the property valu e has gone up to R980 000,00 for which
he cannot be satisfied by neither of the parties.
[64] There can be no doubt that Mr Motaung can take action against the
people who received the funds he allegedly paid for the purchase price. He
also has a claim for damages against the persons to whom the purchase price
was paid.
Conclusion
[65] The allegations made in the liquidators’ affidavit are largely not
contested.
[66] A reading of the founding affidavit of the main application clearly shows
that the requirements for the interdict were not dealt with all. It is therefore my
view that the main application should not have succeeded.
[67] I am therefore persuaded that a proper case has been made for the
intervention, reconsideration and anticipation of the return date.
Costs
[68] Mr Lotter for the liquidators sought costs on a punitive scale on the
ground that the liquidators were ambushed by Mr Motaung in these
proceedings. Further that the main application was never urgent. Mr Mabuse
disagreed.
[69] Having considered the matter, I am not persuaded that the application
justifies the award of costs on a punitive scale. It is my view that costs which
include costs of counsel on scale B are fair and reasonable.
[70] Consequently, the following order is made:
1. The applicants /intervening parties’ non -compliance with forms,
service and time periods are condoned and this application is heard
as one of urgency as provided for in Rule 6(12) of the Uniform
Rules of Court.
2. The applicant/intervening parties are granted leave to intervene in
the proceedings under the above -mentioned case number and as
such allowed to anticipate the return date issued by the above
honourable court under the above -mentioned case number and to
oppose the relief sought in terms of that ap plication as provided for
in Rule 6(8) of the Uniform Rules of Court, on an urgent basis,
and/or for the honourable court to reconsider the order granted on
26 August 2025 as provided for by Rule 6(12)(c) of the Uniform
Rules of Court.
3. That the rule nisi issued by the above -mentioned court on 26
August 2025 is discharged and the application (main application), is
dismissed.
4. The applicant is ordered to pay the costs of the main application
and the costs of the intervention application which costs include the
costs of Counsel on scale B.
M J TEFFO
JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
Appearances
For the applicant K M Mabuse
Instructed by Odi Law Centre
For the intervening parties G J Lotter
Instructed by Willemse Potgieter & Babinszky Inc
Heard on 10 October 2025