SAFLII Note: Certain personal/privat e details of parties or witnesses have been redacted from this document in
compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
LIMPOPO DIVISION, POLOKWANE
CASE NO.: 2330/2023
In the matter between:
D[...] R[...] T[...] O.B.O. APPLICANT
D[...] D[...] T[...] O.BO.
B[...] K[...] T[...]
AND
ESKOM HOLDINGS SOC LTD 1ST RESPONDENT
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO THE JUDGES: YES/NO
(3) REVISED: YES/NO
_____________________ 11/05/2026
SIGNATURE DATE
DATE………… SIGNATURE:……
ESKOM LIMLANGA REGIONAL CLUSTER 2ND RESPONDENT
POLOKWANE MUNICIPALITY 3RD RESPONDENT
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: 11 MAY 2026
Coram: NGOBENI J
JUDGMENT
NGOBENI J
[1] The applicant is D[...] R[...] T[...], an adult female person, with identity
number 9[...], currently residing at stand number 1[...] Ga-Matlala,
Vlakfontein, Moletjie, Limpopo Province. She acts in her personal capacity
and also in her representative capacity as the biological mother of D[...]
D[...] T[...] and B[...] K[...] T[...], who are both minor children.
[2] The first respondent is Eskom Holdings (State Owned Company) LTD,
LimLanga cluster, with its physical address at Nedbank Building, 6[...],
Polokwane Central, Polokwane. The second respondent is Eskom (State
Owned Company) LTD, LimLanga Cluster with its physical address at
6[...] H[...] V[...] R[...] Street, Polokwane. The third respondent is the
Polokwane Municipality, with its physical address at corner L[...] and
B[...] street, Polokwane.
[3] This is an app lication for contempt of the court order (order) that was
granted by Judge Naude -Odendaal on 14 November 2023. The court is
asked in this application to order the second respondent to comply with
the order within ten court days of service of the order , and if the records
sought are not available the second respondent is called upon to explain
the reason for their unavailability. Failing to comply with what I have just
mentioned, then one Mrs Caron Phakula (Mrs Ph akula) must submit
herself to the South African Police Service (SAPS) within five days of non-
compliance to serve a sentence of 180 days which must be imposed by
the court.
[4] If Mrs Phakula does not submit herself to the SAPS, the Minister of Police
(Minister) and the Limpopo Provincial Commissioner (Commissioner)
must within three calendar days take all steps necessary and permissible
to bring Ms Phakula to a correctional centre to commence serving the
sentence. In paragraphs 1,3.4 and 1.4. of the not ice of motion, the
applicant is seeking costs, and the two prayers are not so clear to the
court, but that is not the cause for concern at this stage.
[5] It is common cause that in reaction to the application that I outlined
above, the first respondent filed a ‘Notice of Counter Application’
(counter application) to the main application. The counter application is
accompanied by an affidavit titled ‘First Respondent’s Affidavit’.
[6] The matter was set down for hearing of the application today on 11 May
2026, and whe n trying to determine at to who is supposed to start
because the first respondent brings an application in the counter
application for the rescission of the judgment by Judge Naude -Odendaal,
the applicant then raised an issue that the first respondent did not file an
answering affidavit to the contempt of court application, but rather filed a
two in one affidavit which answers and also seeks rescission of the
judgment or order granted by Judge Naude -Odendaal, which according to
the applicant is irregular.
[7] In reaction to the aspect that was raised by the applicant, the court was
referred to Uniform Rule (rule) 6(7), which reads as follows:
6. Applications
“(7)(a) Any party to any application proceedings may bring a counter -
application or may join any party to the same extent as would be
competent if the party wishing to bring such counter -application or join
such party were a defendant in an action and the other parties to the
application were parties to such action. In the latter event the provisions
of rule 10 will apply.
(b) The periods prescribed with regard to applications apply to counter -
applications: Provided that the court may on good cause shown postpone
the hearing of the application”.
[8] In issue between the parties is as to whether an answering affidavit and a
founding affidavit can be combined in the counter -application as the first
and second respondents did.
[9] In Dolce Domus CC and Elmarie Herholdt & 1 other 1 (Dolce case) , the
first respondent filed an answering affidavit which also served as a
founding affidavit for the counter -application. The applicant in the Dolce
case, supra, filed a reply which also served a dual purpose. Similarly in
the case at hand, the replying affidavit is titled ‘An swering and Replying
Affidavit’. So, just like the affidavit in the counter -application which
served a dual purpose, so is the replying affidavit of the applicant in the
1 (742/2021) [2022] ZAECPEHC 5 (24 February 2022).
case at hand . There is therefore no prejudice that has been suffered by
the applicant as a result of the affidavit filed by the first respondent.
[10] Rule 30(2)(a) implores an opponent not take a further step where the
opposing party would have taken an irregular step with the cause where
the irregularity is known to the opponent. In the case at hand the
applicant took a further step by filing the ‘Replying and Answering
affidavit.’ If what the first respondent did was indeed irregular, then the
applicant must have raised it. I find that what the first respondent did, by
filing the answering and founding affidavit which serves a dual purpose is
not irregular and the court allows that the proceedings continue with the
said affidavit as so filed.
[11] The application before court is for contempt of court as described, and a
counter-application for rescission of judgment. Logic dictates that the
rescission application be heard first, so that the validity of the order can
be dealt with first. I therefore or der that the counter -application of the
rescission of judgment or order be heard first if the matter is re -enrolled
at a later stage.
[12] In the result the following order is made:
(i) if the matter is re -enrolled, the application will proceed with all the
affidavits as filed,
(ii) the counter -application with regard to the rescission of the court
order granted on 14 November 2023 shall commence first,
(iii) costs in the cause.
____________________________
J.T. NGOBENI
JUDGE OF THE HIGH COURT OF
SOUTH AFRICA, LIMPOPO DIVISION,
POLOKWANE
APPEARANCES
For the applicant: Advocates Sako and Kotswane
Instructed by: Ntwampe Thobejane Inc. Attorneys
For the 1st & 2nd respondents: Adv. P.L. Uys
Instructed by: Gildenhuys Malatji Attorneys
For 3rd respondent: No appearances
Date heard: 11 May 2026
Date delivered: 11 May 2026