SAFLII Note: Certain personal/private 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
NORTH WEST DIVISION, MAHIKENG
CASE NO: 3195/25
In the matter between:
THE INSTITUTE OF MARKET AGENCIES
OF SOUTH AFRICA (IMASA) Applicant
and
THE CITY OF MATLOSANA LOCAL
MUNICIPALITY First Respondent
THE EXECUTIVE MAYOR OF
THE CITY OF MATLOSANA Second Respondent
THE MINISTER OF PUBLIC WORKS
AND INFRASTRUCTURE Third Respondent
THE MINISTER OF COOPERATIVE
GOVERNANCE AND TRADITIONAL AFFAIRS Fourth Respondent
THE MINISTER OF TRADE, INDUSTRY
& COMPETITION Fifth Respondent
THE MINISTER OF AGRICULTURE Sixth Respondent
THE MEC FOR THE NORTH WEST
DEPARTMENT OF ECONOMIC DEVELOPMENT,
ENVIRONMENT, CONSERVATION & TOURISM Seventh Respondent
AGRICULTURAL PRODUCE AGENTS’
COUNCIL (APAC) Eighth Respondent
ABSA BANK LIMITED (KERK ST KLERKSDORP
BRANCH) Ninth Respondent
FRESHLINQ (PTY) LTD Tenth Respondent
Coram: Reddy J
Heard: 12 February 2026
Reserved: 12 February 2026
Delivered: This judgment was electronically circulated to the parties' legal
representatives by e-mail and released on SAFLII. The date and time of hand
down are deemed to be 12 May 2026 at 16h00.
Summary:
Interdicts — Interim — Requirements — Setlogelo test — Application
against organ of state — Municipality in persistent non -compliance with
court order for four years — All four requirements for interim interdict
established — No adequate alternative remedy where prior money judgment
ignored — Structural interim relief competent.
Interdicts — Structural interdict — Against municipality — Removal of
municipal officials from operational control of disbursement function —
Appointment of private mandatee on municipal bank account — Whether
order impermissibly impacts running of municipality — Funds held in trust
not municipal money — Municipal Finance Management Act 56 of 2003 not
applicable to trust funds belonging to third parties — Order constitutionally
grounded in sections 165 and 172 of Constitution — Order proportionate,
interim and reversible — Relief competent.
Municipalities — Fresh produce market — Agricultural Produce Agents Act
12 of 1992 — Market agent's trust funds — Municipality collecting sale
proceeds as conduit — Obligation to disburse 95% of proceeds to market
agents within 48 hours — Persistent non-compliance with court order —
Structural interim relief granted.
Contempt — Non-compliance with court order — Prior court order ignored
for four years — Municipality failing to return to court to seek variation —
No explanation for non-compliance — Opposition consisting of inadmissible
hearsay — Further compliance order futile on facts — Structural
enforcement mechanism appropriate.
Costs — Attorney and client scale — Organ of state — Municipality
maintaining opposition on inadmissible and objectively contradicted
evidence — Four years of non -compliance with court order — Complexity
of litigation requiring two counsel — Attorney and client costs awarded
jointly and severally against Municipality and Executive Mayor in official
capacity.
JUDGMENT
_____________________________________________________________
REDDY J
Introduction
[1] This application is brought by the Institute of Market Agencies of
South Africa ("IMASA"), a voluntary association representing registered
fresh produce market agents, against the City of Matlosana Local
Municipality ("the Municipality") and nine other respondents. The
application arises from the Municipality's failure to make timely payments to
market agents operating at the Matlosana Fresh Produce Market at
Klerksdorp ("MFPM"). IMASA seeks interim relief in Part A to address the
Municipality's continued n on-compliance with its payment obligations,
pending the determination of the relief sought in Part B.
[2] The application was initially enrolled on the urgent roll on 22 August
2025 but was struck from that roll for lack of urgency. It thereafter
proceeded on the opposed motion roll and was argued before me on 12
February 2026.
The parties
[3] To navigate the application properly, an accurate description of the
parties is essential. The applicant is the Institute of Market Agencies of
South Africa ("IMASA"), a voluntary, non -profit association registered
under the Companies Act. It comprises market agencies and individual
market agents who operate at fresh produce markets throughout South
Africa, including at the MFPM.
[4] The first respondent is the City of Matlosana Local Municipality ("the
Municipality"), a local authority constituted under the Local Government
Municipal Systems Act 32 of 2000 and the Local Government: Municipal
Structures Act 117 of 1998. The Municipality owns and operates the MFPM.
The second respondent is the Executive Mayor of the City of Matlosana,
cited in his official capacity.
[5] The third to seventh respondents are organs of state, being the
Ministers of Public Works and Infrastructure, Cooperative Governance and
Traditional Affairs, Trade Industry and Competition, and Agriculture
respectively, and the MEC for the North West Department of Economic
Development, Environment, Conservation and Tourism cited by reason of
the statutory and regulatory framework governing fresh produce markets.
[6] The eighth respondent is the Agricultural Produce Agents Council
("APAC"), the regulatory body established under the Agricultural Produce
Agents Act 12 of 1992 ("the APA Act") that registers and oversees market
agents, including all IMASA members. The ninth respondent is ABSA Bank
Limited (Kerk Street, Klerksdorp Branch), the financial institution holding
the MFPM's closed trust account ("the Bank Account"). The tenth
respondent is FreshLinq (Pty) Ltd ("FreshLinq"), the private company that
administers the Freshmark payment and accounting system ("the Freshmark
system") deployed at the MFPM to record all daily sales and regulate the
disbursement of funds to market agents.
The way the Market system operates
[7] The MFPM operates within a well -established statutory and
commercial framework that has been in place for decades. Market agents are
appointed by farmers and producers to sell their fresh produce on a
commission basis. Buyers attend the market and purchase produce; payment
for these purchases is made into the Municipality's Bank Account at ABSA
Bank. In law, this account is a closed trust account. The proceeds received
therein do not belong to the Municipality but are held in trust on behalf of
the market agents and, ultimately, the producers.
[8] The Municipality is entitled to retain a commission of five percent of
the gross proceeds from each sale. The remaining ninety -five percent must
be transferred daily to the trust account of the relevant market agent, who, in
turn, accounts to the producer within five business days of the sale. This
obligation arises from both the parties' contractual arrangements and Rule 32
of the rules made under the APA Act, which requires market agents to effect
electronic payment to their principals (the producers/ farmers) no later than
five business days after the fresh produce is sold.
[9] Immediate payment by the Municipality to market agents is therefore
not merely a commercial obligation. It is a legal imperative that enables
market agents to fulfil their downstream obligations to producers under the
APA Act. The Freshmark system was specifically designed to record all
daily transactions and to facilitate immediate disbursement upon the
conclusion of each sale. The Municipality's failure to process disbursements
in a timely manner thus places market agents in an impossible position, as
they cannot pay producers within five business days when the Municipality
has retained the proceeds beyond that period.
[10] The consequences of delayed payment cascade through the chain.
Market agents, starved of the funds they are owed, cannot meet their
obligations to producers. Producers, dependent on the timely receipt of their
selling price, cannot fund the next production cycle. The knock -on effect on
the agricultural sector that relies on the MFPM is, on the evidence before
me, severe and ongoing.
The court order of 4 March 2021 and the non-compliance thereof
[11] The Municipality’ s non -compliance with its payment obligations is
not a recent development. According to Mr Hooghiemstra, the Municipality
has been in contravention of its payment obligations since at least 2018.
Accordingly, in 2021, the market agents were compelled to approach this
Court. On 4 March 2021, this Court granted an order that is not challenged
and remains extant , directing, inter alia, that the Municipality comply with
future payment obligations by paying ninety -five percent of the capital
amounts received on the market agents’ behalf within forty -eight hours, and
further directing that the Municipality pay the costs of that application on the
attorney-and-client scale.
[12] A crucial feature of the 2021 proceedings was that a money judgment
was entered against the Municipality in favour of IMASA's members for
failure to pay amounts already due at that time, totalling R1,166,786.00.
[13] Notwithstanding these orders, the Municipality has continued to treat
its obligations with indifference. The founding affidavit, deposed to on 21
August 2025, demonstrates that, as at that date, market agents had not been
paid for produce sold on 15, 16, 18 and 19 August 2025, which was already
more than five days overdue. The outstanding payment on the reconciliation
for one market agent, Subtropico Market Agents (Pty) Ltd, continued to
escalate on a daily basis. WL Ochse & Kie (Klerksdorp) (Pty) Ltd was in an
even worse position, with outstanding amounts going back considerably
further. These are not isolated incidents; they are symptomatic of a systemic
and persistent failure.
[14] IMASA avers that the Municipality has been wholly oblivious to the
obligations imposed upon it by the 2021 order of court and that,
notwithstanding years of correspondence and meetings, it has simply
disregarded those obligations. I accept this evidence. It stands unrebutted.
The Rule 30(2)(b) application
[15] Before addressing the merits of the interim relief, I must deal with the
first and second respondents' notice in terms of Rule 30(2)(b) read with Rule
30A(1) of the Uniform Rules of Court, in which they sought to strike out the
supplementary affidavit filed by the tenth respondent (FreshLinq) on 4
February 2026. The Municipality contended that the supplementary affidavit
constituted an irregular step because FreshLinq had previously elected to
abide by the Court's decision.
[16] I disagree. FreshLinq is a party to these proceedings. As the
administrator of the Freshmark system, it has a direct and substantial interest
in the outcome. FreshLinq’s supplementary affidavit does no more than
contextualise and comment upon documents that the Municipality itself
disclosed in response to the applicant's Rule 35(12) notice. Specifically, the
affidavit explains, from the perspective of an experienced market operator,
why the documents discovered by the Municipality cannot demonstrate that
the MFPM's finances are in order, and identifies the absence of key
reconciliations that any proper accounting audit would require.
[17] To my mind, this does not introduce a new cause of action or new
evidence in the prohibited sense. The Rule 30 procedure is not a mechanism
for suppressing inconvenient evidence. Prejudice is a jurisdictional
prerequisite for such relief. The Municipality has demonstrated no prejudice
to the further conduct of this litigation. Any alleged prejudice can be
addressed in Part B of the application. Accordingly, the Rule 30 application
fails, and I allow the affidavit to stand.
Submissions of the applicant
[18] Advocate de Beer SC submitted that the applicant has established all
four requirements for an interim interdict. He submitted, first, that IMASA
has a clear prima facie right arising from the cont ractual arrangements
between the market agents and the Municipality, the express provisions of
the APA Act and its rules, and the court order of 4 March 2021, which has
never been set aside or suspended. Advocate de Beer SC argued that the
ABSA Bank Account holds funds that are trust monies in law and that the
Municipality's continued retention of those funds constitutes an ongoing
unlawful act.
[19] Advocate de Beer SC contended that irreparable harm was self -
evident. The inability of market agents to pay producers within five business
days of sale exposed them to regulatory sanctions by APAC, potential
deregistration, and reputational harm that could not be adequately remedied
by a damages award after the fact. Moreover, Advocate de Beer SC claimed
that the harm was cumulative: each day of non -compliance increased the
shortfall owed to agents and producers alike, and the financial cascade had
already begun to undermine the viability of certain market agencies.
[20] On the balance of convenience, Mr de Beer SC asserted that the relief
sought was narrowly tailored; it did not dispossess the Municipality of its
market or its infrastructure. It merely removed municipal officials from
control of the Bank Account and placed oversight of disbursements with
FreshLinq, as the technical administrator of the Freshmark system, with Mr
Hooghiemstra of IMASA as the authorised signatory. Importantly, Mr de
Beer SC maintained that this arrangement precisely mirrored the position the
parties were always contractually and legally obliged to be in, and that the
Municipality would suffer no cognisable prejudice.
[21] Regarding the absence of any other adequate remedy, Mr de Beer SC
pointed to the history of non -compliance. He submitted that the 2021 money
judgment and compliance order had been completely disregarded, and that
any further monetary or contempt remedy would be equally futile unless
operational control over the disbursement mechanism were first restored.
The structural relief sought in Part A was therefore the only remedy capable
of providing meaningful redress.
The first and second respondents’ opposition
[22] Advocate Chwaro, for the first and second respondents resisted the
application on three principal grounds. First, Advocate Chwaro argued that
the payment delays were not attributable to any wrongful act by the
Municipality, but rather to systemic delays in the South African banking
clearing system, specifically the time required for payments made by buyers
through various banking platforms to be reflected in the ABSA trust account.
Advocate Chwaro maintains that the Municipality could affect
disbursements only once th e funds had cleared and were visible in the
account.
[23] Second, Advocate Chwaro posits that the relief sought by the
applicant was disproportionate to the alleged harm and amounted to a
significant encroachment on the Municipality’s executive authority over its
own financial operations. He argued that the appointment of a private party
as the authorised signatory on a municipal bank account effectively
displaced the democratically accountable Municipal Manager from the
performance of his statutory functions, and that such relief was not
competent in interim proceedings.
[24] Third, Advocate Chwaro contended that IMASA failed to establish
urgency in the original application and that, even on the ordinary opposed
motion roll, the alleged harm was compensable in money and did not
warrant the extraordinary structural relief claimed. Accordingly, the
application should be dismissed with costs.
The law on interdicts
[25] The requirements for granting an interim interdict are well settled. In
Setlogelo v Setlogelo 1 our jurisprudence as regards interdicts was
authoritatively decided and has been consistently applied in our law. An
1 Setlogelo v Setlogelo 1914 AD 221 page 227.
applicant must establish (a) a prima facie right, even if open to some doubt;
(b) a well -grounded apprehension of irreparable harm if the interdict is not
granted; (c) that the balance of convenience favours the granting of the
interdict; and (d) that there is no other satisfactory remedy.2
[26] In Webster v Mitchell 3, the court held that the applicant need only
show a right that is prima facie established, even though open to some doubt.
The strength of the right bears on the court's discretion in considering the
other factors, particularly the balance of convenience. The weaker the right,
the more the court will need to be persuaded that the balance of convenience
clearly favours the applicant; and vice versa.
[27] In National Treasury and Others v Opposition to Urban Tolling
Alliance and Others 4 where the apex court held that a court granting interim
relief must, in exercising its discretion, have regard to the prospects of
success on the merits . In doing so, the court emphasised that the
constitutional right of access to courts 5 and the right of an aggrieved party
not to be left without effective remedy are always relevant considerations
when interim interdictory relief is sought.
[28] In evaluating irreparable harm, our courts have consistently held that
harm is irreparable where monetary compensation would be an inadequate or
incomplete remedy for the prejudice suffered. In Knox D'Arcy Ltd and
2 See also Webster v Mitchell 1948 (1) SA 1186 (W) at 1189 and Eriksen Moto rs
(Welkom)Ltd v Protea Motors, Warrenton and Another 1973 (3) SA 685 (A) at 691C.
3 Op cit fn 2.
4 National Treasury and Others v Opposition to Urban Tolling Alliance and Others 2012
(6) SA 223 (CC) at para 44-45
5 Section 34 of the Constitution of the Republic of South Africa, 108 of 1996.
Others v Jamieson and Others 6, the Appellate Division held that where the
injury flows from the very conduct complained of and will continue and
compound until the matter is finally resolved, the harm is irreparable in the
sense relevant to interim relief.
[29] On the balance of convenience, the court must weigh the prejudice the
applicant would suffer if the interdict were refused against the prejudice the
respondent would suffer if it were granted. In instances where the respondent
is not deprived of any right or property but merely restrained from
continuing conduct it was always legally obliged not to engage in, the
inconvenience to the respondent is minimal and cannot outweigh the serious
ongoing harm to the applicant.
[30] Notably, a distinction must be drawn when an organ of state is the
respondent in interdict proceedings. To this end, additional considerations
arise. Our precedents establish that organs of state are bound by the
principle of legality and the rule of law. Simply put, a court will be reluctant
to allow a delinquent organ of state to take refuge in its own non -compliance
with legal obligations to resist interim relief designed to restore legality.
[31] I turn to the final requirement governing interim interdictory relief.
The jurisdictional requirement is that there be no other satisfactory remedy,
which has been interpreted to mean no other remedy that is adequate in the
circumstances, not merely the absence of any remedy whatsoever. A
monetary judgment against a recalcitrant organ of state that has already
demonstrated a disposition to ignore court orders is not a satisfactory
alternative remedy.
6 Knox D’ Arcy Ltd and Others v Jamison and Others 1996 (4) SA 348 (A) at 362G.
An evaluation of the Municipality’s opposition
[32] The first and second respondents opposed the application. The essence
of the opposition is as follows. Their core argument is that any delay in
paying market agents is attributable to the general banking system. More
specifically, this refers to delays in clearing funds deposited into the Bank
Account by purchasers via various banking platforms across South Africa,
which prevent the funds from being reflected in the ABSA trust account. The
Municipal Manager avers that he has been "advised" of this explanation.
[33] This opposition is without merit for several reasons. First, the
Municipal Manager acknowledges he was "advised" of the cause of the
delays but fails to identify the source of that advice. Applying the general
principles of hearsay evidence, which find equal application to affidavit
evidence, his averment constitutes inadmissible hearsay. When a deponent
relies not on personal knowledge but on legal advice and declines to identify
the source or confirm the advice by an appropriate confirmatory affidavi t,
the court may decline to act on such an averment.
[34] Second, the explanation offered is contradicted by objective evidence.
The Freshmark payment and accounting system is the same system utilised
at the Tshwane Fresh Produce Market , one of the largest of its kind in the
country and a similar system is used at the Johannesburg Fresh Produce
Market. Both of those markets process deposits, payments, and
disbursements using the same South African banking infrastructure, without
the delays the Municipality attributes to the banking system. The
Municipality's contention that late payments are beyond its control is, on the
objective evidence, ill-conceived.
[35] Third, which goes to the heart of the opposition, the Municipality does
not explain why it cannot comply with a court order that has been in effect
for more than four years. The 2021 order imposed a clear, measurable
obligation that ninety -five percent of the capital amounts received on behalf
of market agents be paid within forty -eight hours. The Municipality neither
appealed the order nor sought its rescission.
[36] Advocate Chwaro contended that the relief sought impermissibly
displaces the Municipal Manager from statutory functions. This proposition,
properly considered, is answered by the simple observation that the
Municipal Manager has comprehensively failed to perform those functions
in accordance with both his statutory mandate and the extant court order.
[37] To my mind, the relief is not a substitution for the Municipality’s
authority; it is a restoration of the legal order. The contention also invites
consideration of the Municipal Finance Management Act 56 of 2003 (“the
MFMA”), which vests financial management functions in the Municipal
Manager, the accounting officer. That statutory framework, however, is
confined to the management of municipal money. The funds collected into
the Bank Account are not municipal money. They are trust monies, which, as
a m atter of law and on the undisputed evidence before me, belong to the
market agents and ultimately to the producers. The Municipality’s five
percent commission is the only portion of those proceeds properly
classifiable as municipal revenue. The MFMA does not and cannot authorise
the Municipal Manager to retain trust funds belonging to third parties
beyond the period prescribed by the APA Act and the 2021 court order.
Accordingly, there is no protected statutory function under the MFMA that is
displaced by the interim relief sought in Part A of the Notice of Motion.
[38] A related objection, implicit in the first and second respondents’
submissions, is that the appointment of Mr. Hooghiemstra as the authorised
mandatee on the Bank Account is not competent in interim proceedings. I
disagree. The appointment is a minimal, specifically targeted measure,
chosen because no lesser remedy has proven effective over four years of
non-compliance.
[39] FreshLinq already administers the Freshmark system and is the natural
technical supervisor of daily disbursements. Mr Hooghiemstra, as the
representative of IMASA whose members are the direct beneficiaries of the
funds held in trust, is the appropriate person to authorise those disbursements
on behalf of the parties entitled to them.
[40] The relief does not transfer ownership or management of the market,
dispossess the Municipality of its infrastructure, or permanently remove the
Municipal Manager from office. It is interim, expressly pending the
finalisation of Part B, and is fully reversible upon the final determination of
this matter. It constitutes the minimum necessary relief to give effect to the
rights at stake and to restore the legal order that the 2021 court order was
designed to maintain.
[41] As a result of these primary findings, I accordingly reject the
respondents’ opposition in its entirety.
Discussion
[42] Notwithstanding my findings regarding the first and second
respondents’ opposition, I turn to consider each jurisdictional requirement in
light of the facts to determine whether, on a balance of probabilities, the
applicant has made out a cause of action for the proposed interdictory relief.
Prima Facie Right
[43] The applicant has demonstrated a prima facie right to the relief
sought. IMASA's members are entitled by contract, by statute, and by court
order to receive payment of ninety -five percent of the daily market proceeds
within forty -eight hours of the conclusion of sales. That entitlement is not
disputed in any substantive sense. The founding affidavit establishes that
these amounts are collected by the Municipality into the closed trust account
at ABSA Bank. The Municipality holds these monies not as an owner but as
a conduit for funds that, by law, belong to market agents and ultimately to
producers. The failure to disburse these funds timeously is a breach of that
trust obligation.
[44] The right is reinforced by the court order of 4 March 2021, issued by
this Court, which remains extant. The applicant need not relitigate the merits
of the underlying obligation. The order establishes the right. The crisp
question that follows is whether the Municipality is complying. It manifestly
is not. This is not a right merely open to doubt; it is a right confirmed by
court order. That being said, the applicant has met the threshold of the first
jurisdictional requirement.
Apprehension of Irreparable Harm
[45] The applicant has equally successfully established the apprehension of
irreparable harm. Market agents cannot indefinitely advance to producers the
proceeds of sales collected by the Municipality but not yet disbursed. The
ongoing culture of non -payment increases the outstanding balance and has a
prejudicial domino effect on agents. Agents who fail to pay producers within
five business days breach the APA Act and their registration conditions,
exposing them to regulatory sanctions by APAC, including suspension or
cancellation of their registration as market agents. The prejudice is ongoing
and cannot be adequately redressed by a monetary judgment alone.
[46] Advocate Chwaro’s claim that monetary relief, being a further
judgment debt, would suffice is rejected. The Municipality has already been
the subject of a money judgment and a compliance order, both of which have
been disregarded. It bears emphasising the purpose and objectives of court
orders. Towards this end, in, Secretary, Judicial Commission of Inquiry into
Allegations of State Capture, v Zuma and Others 7 the following was
posited:
“It is indeed the lofty and lonely work of the Judiciary, impervious to public commentary
and political rhetoric, to uphold, protect and apply the Constitution and the law at any and
all costs. The corollary duty borne by all members of South African society – lawyers,
laypeople and politicians alike – is to respect and abide by the law, and court orders
issued in terms of it, because unlike other arms of State, courts rely solely on the trust and
confidence of the people to carry out their constitutionally-mandated function.”
[47] In Pheko (2) 8 Nkabinde J held that:
7 Secretary, Judicial Commission of Inquiry into Allegations of State Capture v Zuma and
Others 2021 (5) SA 327 (CC), at para 1.
8 Pheko and Others v Ekurhuleni Metropolitan Municipality (No 2) [2015] ZACC 10 at
para 1
“(t)he rule of law, a foundational value of the Constitution, requires that the dignity and
authority of the courts be upheld. This is crucial, as the capacity of the courts to carry out
their functions depends upon it. As the Constitution commands, orders and decisions
issued by a court bind all persons to whom and organs of state to which they apply, and
no person or organ of state may interfere, in any manner, with the functioning of the
courts. It follows from this that disobedience towards court orders or decisions risks
rendering our courts impotent and judicial authority a mere mockery. The effectiveness of
court orders or decisions is substantially determined by the assurance that they will be
enforced.
Courts have the power to ensure that their decisions or orders are complied with by all
and sundry, including organs of state. In doing so, courts are not only giving effect to the
rights of the successful litigant but also and more importantly, by acting as guardians of
the Constitution, asserting their authority in the public interest.”
[48] In my view, there is no rational basis for me to be satisfied that a
further money judgment would prompt compliance. It would simply be a
superfluous exercise in futility, given the Municipality’s posture in response
to orders of court granted against it. As Innes CJ observed in Setlogelo v
Setlogelo, where the harm flows from the very conduct complained of and
will recur until final relief is granted, the court of equity should not stand
aside and watch the harm continue.
Balance of Convenience
[49] The balance of convenience is squarely in favour of the applicant. The
relief sought in Part A does not permanently transfer management of the
market to the applicant. It is expressly interim, pending the final
determination in Part B. The interim order restores the position that the
Municipality was always obliged, by law and court order, to maintain.
[50] On the one hand, the market agents face ongoing financial prejudice
and the risk of cascading defaults to producers. On the other hand, the
Municipality faces only the inconvenience of having the Bank Account
operated under the supervision of a mandatee of IMASA and the oversight of
FreshLinq. This is not prejudice of a kind the law recognises as weighing
against relief, particularly where the Municipality's predicament is entirely of
its own making.
No Other Adequate Remedy
[51 ] I am persuaded that there is no other adequate remedy available to the
applicant. The 2021 court order has been ignored for four years. A further
contempt application, while it may remain a remedy in Part B, does not
address the ongoing financial prejudice to market agents and producers.
Each day without compliance is another day of unlawful retention of trust
monies.
[52] It follows that, where an alternative remedy in the form of a damages
award or further court order would not be realistically effective against a
party that has demonstrated its willingness to disregard court orders, that
alternative is not a satisfactory remedy. On the evidence, no lesser remedy
will restore the position required by the law.
The Rule 35 (12) Discovery
[53] I briefly note the difficulties arising from the Municipality's response
to the Rule 35(12) notice. The applicant sought production of reconciliations
and bank statements for the six months preceding the application, pertaining
to the closed trust account. The Municipality, having referred to these
documents in its answering affidavit without annexing them.
[54] Advocate De Beer SC described the documents ultimately produced as
"laborious and nonsensical" and incapable of being contextualised without
the supporting records that any proper audit trail would necessitate. The
applicant has produced its own reconciliation of the bank statements
received. This inadequate discovery fortifies rather than weakens the
applicant's case. It suggests that the Municipality's financial management of
the MFPM is as muddled as the applicant's evidence indicates.
Costs
[55] The applicant has been substantially successful and is entitled to its
costs. Three considerations bear on the appropriate scale. First, the
Municipality’s opposition was without merit and rested on a factual basis,
the banking delay explanation, which was both inadmissible hearsay and
objectively contradicted by the evidence regarding comparable markets.
Second, the Municipality has had the benefit of the 2021 court order for
more than four years and chose to disregard it entirely, necessitating this
application. The costs of that application ought also, in principle, to be
visited upon those whose conduct made it necessary. Third, the litigation
was complex, required two counsel, and involved a multi-respondent
application with extensive affidavit evidence and a contested Rule 30(2)(b)
application. In the exercise of my discretion, I am satisfied that the
appropriate order is that the costs of Part A of this application, including the
costs of two counsel where so employed, be paid by the first and second
respondents jointly and severally on the scale as between attorney - and-
client.
Conclusion
[56] For the foregoing reasons, I am satisfied that the applicant has
established all the requirements for interim interdictory relief. The interests
of justice, the protection of trust monies, and the vindication of the rule of
law all point toward the granting of the relief sought in Part A of the Notice
of Motion.
Order
[57] I accordingly make the following order:
1. That the first and/or second respondent be directed to
immediately remove the current Market Manager and/or any
municipal official responsible for the processing or authorisation of
payments to all market agents from the Matlosana Fresh Produce
Market ("MFPM") from operational control of the Freshmark payment
and accounting system ("the Freshmark system") and the Bank
Account held with ABSA Bank Limited (ninth respondent), with the
following details:
1.1 Account Number: 9[...]
1.2 Account Name: NASIONALE VARSPRODUKTE MARK
KLERKSDORP
1.3 Branch Code: 334338
2. That the tenth respondent (FreshLinq (Pty) Ltd) is authorised to
oversee and ensure the daily disbursement of monies from the Bank
Account referred to in paragraphs 1.1 to 1.3 above to the respective
trust accounts of all market agents operating at the MFPM, in
accordance with the reconciliations produced by the Freshmark
system.
3. That ABSA Bank Limited (ninth respondent) is directed and
authorised to effect the change of mandate on the Bank Account
profile and to recognise Mr Gjalt Hooghiemstra (Identity Number:
6[...]), representing the applicant, as the mandatee authorised to effect
and/or authorise all disbursement transactions in respect of the Bank
Account linked to the Freshmark system, save that the first respondent
shall remain entitled, without requiring the authorisation of Mr
Hooghiemstra, to withdraw its commission o f five percent of gross
proceeds in respect of each sale at the MFPM in accordance with its
ordinary entitlement.
4. That payments shall be made from the Bank Account to the
respective trust accounts of all market agents, within forty -eight hours
of the conclusion of each sale at the MFPM and consistent with the
order of this Court dated 4 March 2021, pending the final
determination of the relief sought in Part B of this application.
5. That the relief in paragraphs 1 to 4 above shall operate as an
interim interdict with immediate effect, pending the finalisation of
Part B of this application.
6. That Part B of the Notice of Motion is postponed sine die. Any
party may supplement or amplify its papers for purposes of the
hearing of Part B.
7. That a copy of this order be served on all market agents of the
applicant operating at the MFPM.
8. That the costs of this application (Part A), including the costs of
two counsel where so employed, be paid by the first and second
respondents jointly and severally, the one paying the other to be
absolved, on the scale as between attorney- and- client.
_____________________
A REDDY
JUDGE OF THE HIGH COURT OF SOUTH AFRICA
NORTH WEST DIVISION, MAHIKENG
APPEARANCES
For the Applicant: Adv J De Beer SC
Attorney for Applicant Instructed by Lötz Baloyi Horn Inc., Pretoria
c/o Van Rooyen Tlhapi Wessels Attorneys,
Mahikeng
For the First and Second
Respondents: Adv OK Chwaro
Attorney for the Respondent: Modiboa Attorneys Inc
Mahikeng