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compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
LIMPOPO DIVISION, POLOKWANE
CASE NO.: 10268/2024
In the matter between:
IHAWU FIREARM CENTRE CC APPLICANT
AND
THE MINISTER OF POLICE N.O. FIRST RESPONDENT
COLONEL J.M. MOTHLE N.O. SECOND RESPONDENT
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO THE JUDGES: YES/NO
(3) REVISED: YES/NO
_____________________ 11/05/2026
SIGNATURE DATE
DATE………… SIGNATURE:……
THE ACTING MAGISTRATE: J.A. MTSWENI THIRD RESPONDENT
MAGITRATES’ COURT MODIMOLLE N.O.
DELIVERED: 11 MAY 2026
This judgment was handed down electronically by circulation to the parties’
legal representatives by e-mail. The date and time for hand down of the
judgment is deemed to be 11 MAY 2026 at 16:00.
Date heard: 15 APRIL 2026
Coram: NGOBENI J
JUDGMENT
NGOBENI J
[1] The applicant is IHAWU Firearm Centre , a Close Corporation duly
registered in terms of the Company Laws of this Country, with its
principal place of business at 1 […] E[...] Road, New Germany, Kwa -Zulu
Natal, from where it trades as IHAWU FIREARM CENTRE, with dealer
number 100084, and has been licensed and registered to deal with
firearms.
[2] The first respondent is the Minister of Police N.O., cited in his official
capacity as the political functionary responsible for the South African
Police Service (SAPS) , in the Republic of South Africa, Pretoria, with his
last known address at […] W[…], 2[…] P[…] Street, Pretoria.
[3] The second respondent is Colonel Mothle N.O. cited herein in his official
capacity as the member of SAPS, with his address at Polokwane
Directorate Priority Crime Investigations (DPCI), with his address in
Polokwane DPCI offices.
[4] The third respondent is the Acting Magistrate at Modimolle Magistrates’
Court, (he is described as the Additional Magistrate on the searc h and
seizure warrant) cited in his official capacity as the judicial officer who
purportedly issued a search and seiz ure warrant in terms of section s 20
and 21 of the Criminal Procedure Act 1, (CPA), as well as in terms of
section 29(1)(a) of the Cybercrimes Act2,(CA).
[5] On 08 August 2024 the premises of Nkwe Wildlife & Security Services
were searched by the police led by second respondent on the basis of the
search and seizure warrant which was issued by the third respondent,
and firearms and ammunition were seized at the said premises. The
applicant following the search and seizure of the firearms and
ammunition, launched an urgent application to have its firearms and
ammunition returned under case number 9463/2024 (I will also refer to it
1 51 of 1977.
2 19 of 2020.
as the withdrawn application for easy reference). On 12 September 2024,
the said urgent application was however withdrawn by a notice which was
served on the respondents and also removed from the roll of the urgent
roll.
[6] The basis for the withdrawal of the application as the applicant submits,
was that the applicant was not shown the search and seizure warrant
when the arms and ammunition were seized, and the applicant only knew
about the existence of same from the answering affidavit of the first and
second respondents (respondents). The applicant subsequently issued a
new application, under this current case number, 10268/2024 for the
return of the said firearms and ammunition, and that urgent application
was struck off the roll by Mashamba AJ for lack of urgency on 04 October
2024.
[7] The matter was after being struck from the roll allocated the date on the
opposed roll, on 15 April 2026. The respondents started by bringing an
application before the court for leave to file a supplementary affidavit,
which application was not opposed, and the court eventually granted the
respondents leave to file that supplementary affidavit. The contents of
that supplementary affidavit are not relevant to what this court has to
decide in the instant proceedings.
[8] In the current proceedings the respondents raised an issue that the court
cannot proceed with the main application because case number
9643/2024 is still pending. The argument by the respondents is that even
though the applicant filed a notice of withdrawal , the matter was already
set down and as the respondents never consented to the withdrawal, and
the applicant did not approach the court for leave to withdraw to be
granted to it, that case is still pending.
[9] In issue between the applicant and the respondents is as to whether case
number 9643/2024 is still pending or not because the consent of the
respondents was not given and the court has also not given leave for
such withdrawal.
[10] The withdrawal, settlement, discontinuance, postponement and
abandonment of proceedings are governed by Uniform Rule (Rule/s) 41 .
Rule 41 reads as follows:
41. Withdrawal, settlement, discontinuance, postponement and
abandonment
“ (1) (a) A person instituting any proceedings may at any time before the
matter has been set down and thereafter by consent of the parties
or leave of the court withdraw such proceedings, in any of which
events he shall deliver a notice of withdrawal and may embody in
such notice a consent to pay costs, and the taxing master shall tax
such costs on the request of the other party.
(b) A consent to pay costs referred to in paragraph (a) shall have
the effect of an order of court for such costs.
(c) If no such consent to pay costs is embodied in the notice of
withdrawal, the other party may apply to court on notice for an
order for costs.
(2) …
(3) …
(4) … ”
[11] The court was referred to the case which upon perusal, I believe deals
with the doctrine of lis alibi pendens extensively, being the case of
Caesarstone Sdot -Yam Ltd v The World of Marble and Granite CC 3
(Ceasarstone case), and on paragraph 2 of the judgment the Supreme
Court of Appeal (SCA) said the following:
“As its name dictates, a plea of lis alibi pendens is based on the
proposition that the dispute (lis) between the parties is being litigated in
the court in which the plea is raised. The policy underpinning it is that
there should be a limit to the extent to which the same issue is litigated
3 (741/12) [2013] ZASCA 129 (26 September 2013).
between the same parties and that it is desirable that there be finality in
litigation. The courts are also concerned to avoid a situation where
different courts pronounce on the same issue with the risk that they may
reach differing conclusions”
[12] In dealing with the point in limine raised by the respondents in the case
at hand , the applicant submits that after the notice of withdrawal was
served on the respondents there has not been any positive conduct from
the respondents. The respondents did not react to the notice of
withdrawal. There was no issue that was raised by the respondents
pertaining to that notice of withdrawal, up until now that the issue is
raised by the respondents in the current proceedings. The further
submission by the applicant is that when the matter was removed it was
removed from the urgent roll, and when the notice of withdrawal was
filed there was no date yet for the application to be heard on the opposed
roll.
[13] The respondents amongst the cases they referred the court to, quoted
the case of Bondev Midrand (Pty) Ltd v Madzie and Others 4, which states
that in terms of Rule 41(1)(a), a withdrawal cannot occur unilaterally
once a matter has been set down, and that this applies to both opposed
4 2017(4) SA 166 (GP) (19 December 2016)
and unopposed matters by virtue of the plain language of the rule that
applies in general terms to all proceedings.
[14] In the Ceasarstone case, supra, the court quoted on paragraph 3 of the
judgment, the Writings of Johannes Voet on ‘The Exception of Res
Judicata’ on the identifying features to determine if the suit is pending
before another court as follows:
“… Thus the suit must already have started to be mooted before another
judge between the same persons, about the same matter and on the
same cause, since the place where a judicial proceeding has once taken
up is also the place where it ought to be given its ending”
[15] In Nestle (South Africa) (Pty) Ltd v Mars Inc 5 (Nestle case), Nugent AJA
said the following:
“… Once a suit has been commenced before a tribunal that is competent
to adjudicate upon it, the suit must generally be brought to its conclusion
before that tribunal and should not be replicated (lis alibi pendens)”.
[16] It is so that once the matter is set down for hearing, it cannot be
unilaterally withdrawn just by notice if the consent of the respondent is
5 2001 (40 SA 542 (SCA).
not sought, and in the absence of consent from the respondent, leave
must be sought from the court6.
[17] In the case at hand, the respondents did not react to the notice of
withdrawal of the application under case number 9643/ 2024. The court
did not see the said notice of withdrawal in the papers filed , and I
therefore do not know as to whether the applicant tendered costs or not.
When the court was addressed on this point in limine , the legal
representative of the respondents informed the court that they are not
interested in costs. It therefore becomes difficult for this court to
determine the basis of the objection by the respondents of the withdrawal
of case number 9643/ 2024. What remains though is that i n the absence
of the consent from the respondents, the applicant should have
approached the court as required by Rule 41(1)(a) and seek such leave to
withdraw the application.
[18] The answering affidavit of the respondents in this proceedings has been
filed, and on paragraph 22 , deals with the withdrawn application.
Paragraph 22.2 reads as follows:
“The failure to cite a party in motion proceedings does not warrant the
withdrawal of an application. The applicant ought to have supplemented
6 Brondani v Brondani (2021).
its papers by seeking an urgent relief joining the Third Respondent to the
proceeding (sic). Therefore, if it is accepted by the honourable court that
the Applicant has withdrawn its previous application, it is submitted by
the First and Second Respondents that by withdrawal of the application
the Applicant has withdrawn the application in its entirety including the
cause of action as alleged in the papers”
[19] This court has the inherent jurisdiction to make orders that will bring
cases to finality where appropriate. This case at hand is in my view one of
those cases that would warrant this court to make such an order to take
the matter forward. This court is however unable to make such an order
because of the response of the respondents in their answering affidavit ,
which in my view might raise the special plea of res judicata . I will
therefore allow the applicant to deal with case number 9643/2024 in the
manner that it would deem fit.
[20] The silence of the respondents however, after the notice of withdrawal
was served is something that must be frowned upon, because had the
respondents reacted, I believe that the issue would have been dealt with
appropriately. As it stands now, the applicant has not complied with the
provisions of Rule 41(1)(a) in as far as seeking leave from the court is
concerned, and I find that the withdrawal of case number 9 643/2024 is
therefore not valid.
[21] The conduct by the respondents has delayed the adjudication of this
matter, and for that reason, I will order that each party bear its own
costs. The applicant requested that this court makes an order that a
preferential date be allocated by the office of the Judge President because
of the delay caused in dealing with this case. I’m inclined to agree to that
request for the reasons that I have already outlined above.
[22] In the result the following order is made:
(i) the point in limine raised by the respondents of lis alibi pendens is
upheld,
(ii) the court makes an order that the applicant is hereby permitted to
make an application to the office of the Judge President of this
division for a preferential date due to the delays encountered in
adjudicating case number 9643/2024,
(iii) this case,10268/2024, is stayed pending the final determination of
case number 9643/2024.
(ii) each party to pay its own costs.
____________________________
J.T. NGOBENI
JUDGE OF THE HIGH COURT
APPEARANCES
For the applicant: Adv. N. Jagga
Instructed by: Kotze Low Swanepoel Attorneys
For the 1st and 2nd respondents: Adv. M.G. Senyatsi
Instructed by: State Attorney Polokwane
For the 3rd respondent: No appearances
Date heard: 15 April 2026
Date delivered: 11 May 2026