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THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
Case no 2026-017521
In the matter between:
NATHANIEL TSAKANE MAKHUBELE Applicant
and
RONALD TSAKANE MABUNDA
First Respondent
MHLAVE INVESTMENT HOLDINGS (PTY) LTD
Second Respondent
SHERIFF OF THE HIGH COURT, SOWETO WEST
(MAUREEN CIBE)
Third Respondent
SHERIFF OF THE HIGH COURT, WESTONARIA Fourth Respondent
JUDGMENT
DU PLESSIS J
Introduction
[1] This judgment concerns another urgent court application by Mr Makhubele in
long‑running litigation regarding the immovable property situated at Erf 1[ … ], N[… ]
Street, P[…] N[…] , Soweto (“the property”). The present application is brought by Mr
Nathaniel Tsakane Makhubele (“the applicant”), in person, on an urgent basi s, and
invokes section 18 of the Superior Courts Act 10 of 2013 (“the Act”).
(1) REPORTABLE: Yes☐/ No ☒
(2) OF INTEREST TO OTHER JUDGES: Yes☐ / No ☒
(3) REVISED: Yes ☒ / No ☐
Date: 01 April 2026
2
[2] Aside from urgency, t he central question is whether the applicant is entitled,
under section 18, to obtain relief that would, in effect, circumvent the interim regime
created by the order granted by Mia J on 13 February 2026 and restore the earlier
orders granted by Tebeile AJ and Wanless J. The crisp question is whether section
18 of the Act can be used in the manner contended for by the applicant, given what
Mia J decided and given the status of those earlier orders.
[3] For the reasons set out below, the answer to the question is no. The
application falls to be dismissed with a punitive costs order. I am also compelled,
given the applicant’s egregious litigation history in the urgent court , to impose
procedural controls on any further litigation he may seek to initiate in this Division, as
sought for in the third respondent’s counter-application.
[4] Before I can proceed to the merits, however, I need to deal with the recusal
application brought by Mr Makhubele.
Recusal application
[5] A day before the hearing, Mr Makhubele lodged a complaint with the Judicial
Service Commission (JSC) on the same grounds advanced in a leave- to-appeal
application concerning a judgment I delivered in a separate application he brought
against WITS U niversity in March 2025. I struck an urgent application from the roll
for lack of urgency . That application remains pending and is a matter for those
proceedings.
[6] After lodging the complaint and on the day of the hearing, he submitted a
recusal application in this matter. Prior to submitting the application, he had already
written to the Acting Deputy Judge President requesting that the matter be allocated
to a different judge. Only after he did not receive a satisfactory response did he file
the recusal application with me. I rejected the application for the reasons explained
below.
3
[7] The test for recusal is objective. President of the Republic of South Africa v
South African Rugby Football Union 1 clarified the test for recusal, which I quote in
full:
“[48] It follows from the foregoing that the correct approach to this application for the
recusal of members of this Court is objective and the onus of establishing it rests
upon the applicant. The question is whether a reasonable, objective and informed
person would on the correct facts reasonably apprehend that the judge has not or will
not bring an impartial mind to bear on the adjudication of the case, that is a mind
open to persuasion by the evidence and the submissions of counsel. The
reasonableness of the apprehension must be assessed in the light of the oath of
office taken by the judges to administer justice without fear or favour; and their ability
to carry out that oath by reason of their training and experience. It must be assumed
that they can disabuse their minds of any irrelevant personal beliefs or
predispositions. They must take into account the fact that they have a duty to sit in
any case in which they are not obliged to recuse themselves. At the same time, it
must never be forgotten that an impartial judge is a fundamental prerequisite for a fair
trial and a judicial officer should not hesitate to recuse herself or himself if there are
reasonable grounds on the part of a litigant for apprehending that the judicial officer,
for whatever reasons, was not or will not be impartial.”
[8] Judges are assumed to be impartial. Since this is fundamental to judging and
a judge’s duty, the presumption is not easily overturned. The litigant who seeks to
displace it must clearly present the facts they rely on, which, when viewed
objectively, would give rise to a reasonable suspicion of bias.
[9] Mr Makhubele’s stated reason appears to be that I struck a previous urgent
application from the roll due to lack of urgency, and that he is unhappy with the
application from the roll due to lack of urgency, and that he is unhappy with the
judgment. During his oral address, he said he bore no personal ill will and felt no
animosity from me when he previously appeared. His only complaint concerns the
content of the judgment, which is a matter to be addressed in those proceedings, not
in a recusal application in an unrelated matter.
1 [1999] ZACC 9; 1999 (4) SA 147; 1999 (7) BCLR 725.
4
[10] His grounds for recusal do not meet the legal test set out above. An alleged
mistake or oversight in a previous judgment does not serve as proof of bias.
Similarly, the fact that a complaint has been made to the JSC does not, on its own,
create a reasonable apprehension of bias. Nor does the complaint imply the judge
has a personal interest in the outcome of the case before them. The complaint
relates to a separate judgment, and its merits are unaffected by the outcome here. If
merely lodging a complaint were enough to justify recusal, any litigant could
disqualify any judge simply by filing one. This would undermine the duty of judges to
preside over cases assigned to them, promote forum shopping, and weaken the
administration of justice.
[11] Furthermore, writing to the Acting Deputy Judge President to request the
reallocation of a matter already assigned to a sitting judge is in itself procedurally
improper and irregular. The assignment of cases is an administrative and judicial
function vested in the Judge President and those acting under his authority.
2 Once a
matter has been allocated, a litigant has no standing to approach the court's
administration to reverse that allocation. Doing so interferes with the orderly
distribution of judicial work and effectively attempts to choose one's judge by indirect
means. The recusal application that followed was filed only after that improper
attempt had failed and cannot be viewed independently of it. No reasonable,
objective, and informed person would see that sequence of events as evidence of a
genuine concern of bias. Rather, it exhibits the traits of a litigant intent on avoiding a
particular judge.
[12] I have no personal interest in this litigation and harbour no ill will towards Mr
Makhubele. I approach this matter with an open mind. A reasonable, objective and
informed observer, in possession of the true facts, would not apprehend otherwise.
The recusal application is accordingly dismissed.
Backgro
The recusal application is accordingly dismissed.
Backgro
[13] I now turn to the merits of the urgent application. The dispute has involved
multiple rounds of litigation between entities associated with the applicant and
2 In this case, the senior judge on Urgent Court duty, who allocated all the even numbers on the roll to me.
5
respondents over several years. Tebeile AJ granted an order on 4 December 2025
directing the Sheriff to give the applicant vacant possession of the property within
five days, in light of the prolonged litigation. Wanless J later granted a coercive
contempt order on 26 January 2026, requiring the Sheriff to fully comply with Tebeile
AJ’s order within 48 hours or face 60 days’ imprisonment, which ultimately resulted
in the eviction of the first and second respondents on that date.
[14] During January 2026, the first and second respondents (Mabunda and his
company) were in occupation of the property. On 26 January 2026, they were
removed due to the execution of earlier orders. On 13 February 2026, Mia J granted
an order restoring possession and occupation.
[15] Before the matter was heard by Mia J in the urgent court, it was before Fisher
J on 4 February 2026. The applicant brought a recusal application based on previous
complaints lodged with the Judicial Service Commission against Fisher J (and,
according to the third respondent, six other judges in this Division). The matter was
then later scheduled for hearing before Mia J.
[16] Mr Makhubele appealed Mia J’s order and states that lodging the appeal
suspends the order, thereby requiring the sheriff to execute it again.
[17] The third respondent disputes that Mr Makhubele launched an appeal and
launched a counter-application to strike the matter for want of urgency and to declare
him a vexatious litigant. They indicated to the court that there is no pending leave to
appeal, as it has not been filed due to noncompliance with the Rules of the Court. An
email from “Court Online” confirms the following:
This is to inform you that a document has been rejected as follows: Case Title:
RONALD TSAKANE MAKHUBELA v. SHERIFF OF THE HIGH COURT SOWETO
WEST # 2026-017521 # MRNDMOCHAKICIV0061021ND
Case Number: 2026-017521
Name of Document: Leave to Appeal Date and Time: 2026/03/12 15:18
6
Reasons for rejection: RONALD TSAKANE MAKHUBELA v. SHERIFF OF THE
HIGH COURT SOWETO ----- WEST # 2026-017521 #
MRNDMOCHAKICIV0061021ND
--- pls upload the judgment and reapply for a date.
[18] Based on this communication, I accept that, factually, there is no pending
leave to appeal and, therefore, no order is suspended. Even if there was a valid
pending appeal, the order would not be suspended for reasons set out below.
Mia J’s order
[19] Various applications and counter‑applications were placed before Mia J in the
urgent court during the week of 9– 13 February 2026. What matters for present
purposes is not so much the content, but the character and effect of the order she
made on 13 February 2026.
[20] In broad terms, Mia J did not grant the urgent relief on the basis of want of
urgency and/or merit as then framed. At the same time, appreciating the long-winded
history and the escalating nature of the dispute, she made an order designed to
bring the litigation under judicial control. In particular, she consolidated the
applications and counter ‑applications under case numbers 2026/017521 and
2026/006488 and referred them to the Judge President for case management and
determination. She also directed that t he planned rescission applications to the
Tebeila AJ and Wanless J orders be instituted by the stipulated dates.
[21] Pending the determination or finalisation of those applications, she granted
interim relief restoring possession and occupation of the property to the first and
second respondents, and interdicted the applicant and the Sheriff from taking any
further civil, criminal or administrative steps against the first and second respondents
and their legal representative. Costs were reserved for determination in the case‑
managed process.
[22] Properly understood, the order of Mia J did not aim to overturn, modify, or
definitively resolve the earlier merits orders of Tebeile AJ and Wanless J. Instead, it
7
established a temporary “holding” arrangement while ensuring that all related
disputes, including any challenges to those previous orders, would proceed in an
orderly and supervised manner under the direction of the Judge President.
[23] It is this order that Mr Makhubele argues is suspended by the alleged pending
leave to appeal.
The legal framework
[24] Section 18 of the Act regulates the operation and execution of a court order
pending an appeal or application for leave to appeal. It provides, in relevant part
(own emphasis):
“(1) Subject to subsections (2) and (3), and unless the court under exceptional
circumstances orders otherwise, 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.
(2) Subject to subsection (3), unless the court under exceptional circumstances
orders otherwise, the operation and execution of a decision that is an interlocutory
order not having the effect of a final judgment, which is the subject of an application
for leave to appeal or of an appeal, is not suspended pending the decision of the
application or appeal.
(3) A court may only order otherwise as contemplated in subsection (1) or (2), if the
party who applied to the court to order otherwise, in addition proves on a balance of
probabilities that he or she will suffer irreparable harm if the court does not so order
and that the other party will not suffer irreparable harm if the court so orders.”
[25] The distinction in sections 18(1) and 18(2) between final orders and
interlocutory orders is therefore critical. Final orders are automatically suspended
upon the filing of a leave- to-appeal application or an appeal . Interlocutory orders are
not. The classification of an order as final or interlocutory depends on whether it has
the effect of disposing definitively of the rights and obligations of the parties. A
the effect of disposing definitively of the rights and obligations of the parties. A
case‑management order that creates an interim regime pending the finalisation of
further proceedings, as the order of Mia J did, falls squarely within the interlocutory
category and is not automatically suspended.
8
[26] The applicant’s submissions treat the order of Mia J as if it were a final merits
determination on the lawfulness of the earlier orders of Tebeile AJ and Wanless J,
and on who is ultimately entitled to occupy the property. This is not correct.
[27] As already explained, Mia J’s order had a dual purpose. It partly disposed of
the urgent relief as then formulated and partly established an interim case-
management and possession regime pending the resolution of rescission and
related proceedings by or under the authority of the Judge President. The latter
component is clearly interlocutory. Therefore, the default position under section 18(2)
applies: the operation and execution of the order are not halted by simply filing a
leave to appeal.
3
[28] Even if one were to assume in the applicant’s favour that section 18(1) applies
to the Mia J order, the suspension would only affect the operation and execution of
her order itself. It does not transform or amplify the earlier orders of Tebeile AJ and
Wanless J , nor does it render any subsequent occupation of the property per se
unlawful. Most importantly, it does not entitle the applicant to entirely new
substantive relief , namely the eviction and occupational rental orders he now
effectively claims in this application. Section 18 concerns the existing order under
appeal, not the grant and creation of new rights.
[29] Similarly, the premise that the Mia J order “was and remains incapable of
lawful operation” pending appeal is legally incorrect. Section 18(1) provides for
suspension upon the institution of an application for leave to appeal or an appeal . It
is a valid court order until it is set aside. It does not retrospectively invalidate steps
lawfully taken under the order before any suspension came into effect. In any event,
the order did not purport to set aside the earlier orders. It merely created a temporary
case‑management regime.
[30] There are other shortcomings in the application that will only be discussed
[30] There are other shortcomings in the application that will only be discussed
briefly here. For instance, Mr Makhubele’s attempt to obtain a declaration that the
3 Mambafula v Alred Nzo District Municipality [2024] JOL 66349 (ECM).
9
earlier orders of Tebeile AJ and Wanless J “remain operative” is legally unnecessary
and misleading. Those orders remain binding until set aside on appeal or rescinded.
What the Mia J order did was to regulate, on an interim basis, how those earlier
orders might be acted upon pending properly constituted rescission and related
proceedings. Section 18 does not empower this Court to re‑ characterise or prioritise
those earlier orders in the manner suggested.
[31] Furthermore, the applicant impermissibly uses section 18 as a vehicle to
obtain substantive new relief in the form of a detailed eviction order with enforcement
mechanisms, occupational rental and costs orders , which go far beyond anything
contained in the Mia J order. That is not the function of section 18. If the applicant
wishes to enforce earlier orders or obtain fresh eviction relief, he must do so by
appropriate substantive proceedings, subject to the constraints already imposed by
prior case‑management orders and the vexatious‑proceedings declaration discussed
below.
[32] Lastly, the application reveals an internal inconsistency. On the one hand, the
applicant claims that the Mia J order is suspended and cannot be enforced, but on
the other hand, he seeks an order under section 18(3) to make his own fresh eviction
order operate despite any appeal. Section 18(3) is usually used by a party who has
succeeded at first instance and wants to preserve the operation of a favourable order
while an appeal is pending. The applicant appears to be trying to use it to replace an
interim arrangement he does not favour with a different order.
[33] For all these reasons, the section 18 argument cannot be upheld, as there is
no pending appeal. Even if there were, the order is interlocutory and not
automatically stayed. Even if stayed, section 18 does not create new rights, which
ultimately means that the relief sought far exceeds what section 18 authorises.
Counter-application: vexatious litigant
Counter-application: vexatious litigant
[34] As mentioned, the third respondent brought a counter -application requesting
that the applicant be declared a vexatious litigant , and that procedural controls be
10
imposed on future litigation he seeks to initiate. The counter -application is properly
before this Court on the urgent roll.
[35] The applicant is no stranger to the courts in this division and to litigation. His
prior litigation history has been the subject of judicial scrutiny, culminating in a
declaration of vexatiousness under the Vexatious Proceedings Act ,
4 when, on 6
March 2023, Vermeulen AJ declared the applicant and associated entities vexatious
litigants in terms of section 2(1)(b) of the Act.
5
[36] The judgment documents a pattern of conduct spanning more than eight
years: repeated applications for rescission, leave to appeal, urgent stays,
interlocutory applications, recusal motions, and repeated interdict applications, all
aimed at a single judgment issued in 2015 and all ultimately dismissed. Vermeulen
AJ concluded that the applicant had “persistently and without any reasonable
ground” initiated legal proceedings, and that the purpose was to delay and obstruct
the enforcement of a final, confirmed judgment.
[37] Section 2(1)(b) of the Act empowers courts to prevent further legal action by
an individual who persistently and without reasonable cause initiates proceedings
against another. When deciding on such a declaration, the court examines the
pattern of litigation. Isolated incidents would not justify such a declaration, nor would
persistent litigation that has merit. This is because the Act aims to curb persistent
and unfounded legal actions, thus safeguarding the courts’ effectiveness and
protecting innocent litigants from abuse of process and associated costs. Such a
declaration intends to uphold the integrity of the judicial system by preventing the
misuse of court procedures. Courts have inherent powers to halt frivolous and
vexatious proceedings, since such actions undermine the administration of justice.
The Constitutional Court confirmed in Beinash v Ernst and Young
6 that the provision
The Constitutional Court confirmed in Beinash v Ernst and Young
6 that the provision
constitutes a justifiable limitation of the right of access to courts in terms of section
34 of the Constitution, since it serves to protect bona fide litigants from abuse and to
4 3 of 1956.
5 M T Makhubele Enterprises CC and Others v Business Partners Limited [2023] ZAGPPHC 1666.
6 1999 2 BCLR 125 (CC) in par 21.
11
preserve the effective administration of justice. I am satisfied on the facts set out
below that the section 2(1)(b) requirements are met.
[38] The current application precisely follows the pattern identified by Vermeulen
AJ. It is a new urgent application concerning the same property, involving largely the
same parties, aiming to overturn orders that the applicant dislikes, and attempting to
bypass the structured case‑management arrangements already established by Mia J
and directed to the Judge President. The fact that this is done through the urgent
court, with all the disruption and upheaval it causes, makes the abuse considerably
more serious. I am convinced that the criteria under section 2(1)(b) are satisfied and
that a declaration is appropriate.
[39] Additionally, in accordance with paragraph 4.2 of the Mia J order, the
applicant is barred and restrained from pursuing any further civil, criminal, or
administrative proceedings against the first and second respondents and their legal
representative. The current application clearly represents a civil step directed
precisely at that. This further reinforces a declaration.
[40] The urgent roll is not a forum for serial litigation intended to weaken existing
case-management arrangements. The current use of the urgent court is vexatious
and abusive, justifying both a punitive costs order and the implementation of
structured procedural controls.
[41] Restricting an order to litigation concerning this specific property would prove
inadequate. The history of this matter, combined with the Vermeulen AJ order in
another case, demonstrates that the applicant does not restrict his abusive litigation
to a single case or particular parties. He shifts between cases, employing the same
tactics whenever it benefits him. The only effective response is a division- wide
oversight mechanism that requires proper judicial scrutiny before any proceedings
commence. I recognise that this is a considerable step, but I view it as proportionate
commence. I recognise that this is a considerable step, but I view it as proportionate
given the well -documented pattern of litigation across multiple cases and different
judges within this division.
12
The way forward
[42] The order of Mia J already provides for the cases concerning this property to
be referred to the Judge President for case management and determination. A copy
of this judgment will be referred to the Judge President to enable him to give such
further directions as he may consider appropriate, including the appointment of a
dedicated case manager for all matters concerning this property.
[43] Furthermore, considering the applicant’s declaration as a vexatious litigant
and the ongoing misuse of the court, as detailed in this judgment, it is necessary to
strengthen the existing procedural safeguards. Any future applications or
interlocutory steps the applicant intends to initiate in this Division must, before
enrolment, be approved through the office of the Judge President (or a person
delegated by him) in accordance with the procedure outlined in the order below.
Conclusion
[44] The applicant has failed to establish any basis for the declaratory and section
18 relief sought. His attempt to characterise the interlocutory order of Mia J as
incapable of lawful operation and to deploy section 18 as a mechanism for obtaining
fresh urgent eviction relief is fundamentally at odds with the structure of the Act and
with the status of the underlying orders.
[45] In the exercise of this Court’s discretion, having regard to the applicant’s
litigation history and the abusive features of this application, a punitive costs order is
warranted. Attorney‑and‑client costs are to be awarded where a litigant’s conduct is
vexatious or constitutes an abuse of court process. Those criteria are met here in full
measure.
Order
[46] The following order is made:
1. The application and counter-application are enrolled on the urgent roll.
2. The application is dismissed. The applicant is ordered to pay the third
respondent’s costs on the attorney and client scale.
13
3. The applicant is declared a vexatious litigant in terms of section 2(1)(b)
of the Vexatious Proceedings Act 3 of 1956.
4. Pending further written direction from the Judge President or a judge
designated by him, no new application or interlocutory step which the
applicant or any entity acting at his instance shall be enrolled, on the
urgent roll or otherwise, unless:
a. the applicant has first submitted a written request to the office of
the Judge President, supported by an affidavit of not more than
three pages, seeking written leave to institute or take the proposed
step; and
b. the Judge President, or a judge designated by him, has granted
such leave in writing.
____________________________
WJ du Plessis
Judge of the High Court, Gauteng Division,
Johannesburg
Date of hearing:
24 March 2026
Date of judgment:
1 April 2026
For the applicant:
In person
For the third respondent:
LCM Morland instructed by Warrener de
Agrela and associates.