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IN THE HIGH COURT OF SOUTH AFRICA,
MPUMALANGA DIVISION, MIDDELBURG (LOCAL SEAT)
CASE NUMBER: 2026/098879
(1) REPORTABLE: YES
(2) OF INTEREST TO OTHER JUDGES: YES
(3) REVISED YES/NO
DATE 25/5/2026
SIGNATURE
In the application between:
STEVE TSHWETE LOCAL MUNICIPALITY APPLICANT
and
VERALOGIX PROPERTIES (PTY) LTD FIRST RESPONDENT
MIDDELBURG WATERFRONT HOME SECOND RESPONDENT
OWNERS ASSOCIATION
______________________________________________________________
JUDGMENT
______________________________________________________________
FOURIE AJ
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INTRODUCTION:
[1] The First Respondent , under the auspices of Rule 6(12)(c) of the Uniform
Rules of Court, apply for the reconsideration of the Order granted by Leso
AJ, on 12 May 2026.
[2] The Judgment deals with the distinction that needs to be drawn between
applications brought under Rule 6(8) of the Uniform Rules of Court, and
applications brought under Rule 6(12)(c) of the Uniform Rules of Court.
[3] This Judgment further deals with the test to be applied when applications
under Rule 6(12)(c) under the Uniform Rules of Court are heard, and
whether a party making an application under this Rule is necessitated to
prove urgency or whether urgency flows from the nature of the application.
BACKGROUND:
[4] On 12 May 2026, the Applicant obtained an interim interdict against the First
Respondent, which deals in essence with interim access to a sewer pump
station situated on the First Respondent’s property. When the matter was
heard on 12 May 2026, by Leso AJ, only the Applicant was present. The
Applicant advanced that the application as issued by the Applicant on 30
April 2026, was served on the same day at 18h12 at 3[...] L[...] Street,
Middelburg, the registered address of the First Respondent, a copy of the
Notice of Motion being served to one Mr. SE Nkuna, a security guard of the
First Respondent. To substantiate and prove service under the auspices of
Rule 4(1)(a)(v) of the Uniform Rules of Court, the Applicant advanced a
Sheriff’s Return of Service indicating the aforesaid information.
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[5] It is a trite principle that the Sheriff’s Return of Service is prima facie, but not
conclusive evidence of the matter stated therein. It can only be impeached
on the clearest and most satisfactory evidence.[1]
[6] The party seeking to impeach a Return of Service carries the onus to show
by clear evidence that the Return is not a proper Return.[2]
[7] In this Court’s view, Leso AJ was justified in accepting the information
displayed on the Sheriff’s Return of Service pertaining to service on the First
Respondent, and proceeded to hear the application on 12 May 2026, under
the belief that the First Respondent had received notice of the application,
and had for whatever reason decided not to partake in the proceedings.
[8] On 14 May 2026, and after learning of the Judgment and interim interdict
granted against them, the First Respondent brought to Court an application
under the auspices of Rule 6(12)(c) of the Uniform Rules of Court for the
reconsideration of the Order of 12 May 2026, seeking the Applicant’s
application to either be struck, or alternatively dismissed with costs.
[9] Both the Applicant in the main application as well as the First Respondent in
the reconsideration application prayed in the form of Part B to their
respective applications for certain ancillary and ultimate relief that will
ultimately regulate the position between, specifically, the Applicant and the
First Respondent.
[10] The issues as identified during the hearing of this matter are accordingly only
in respect of interim measures to be put in place with respect to the sewer
pump situated on the First Respondent’s property. Ultimately, the Court
hearing the respective Parts B of the applications will need to decide
whether the sewer pump is regular or irregular with respect to its location
and functionality, and how the pump is to be dealt with. The parties currently
seek the Court’s direction as an interim measure on who should maintain the
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sewer pump, who should have access to the sewer pump, and who is liable
for the expenses incurred in respect of the maintenance of the sewer pump
whilst the issues are pending finalisation.
ISSUES IN DISPUTE:
[11] At the commencement of the hearing, Counsels for the First Respondent
and Applicant respectively attacked each other, both aggressively and
emotionally, with regard to the form and substance with which the respective
main application and the current reconsideration application were brought.
[12] The First Respondent claimed that the initial Judgment was obtained by way
of underhand tactics in that the Applicant ought to have an automatic right
under the auspices of Rule 6(12)(c) for the reconsideration of the matter.
[13] The Applicant , taking issue with the sentiments of the First Respondent,
persisted that the Order was validly obtained after proper service of the
application occurred.
[14] The First Respondent, together with their Answering Affidavit, filed an
affidavit by Mr. Nkuna, indicating that he is not an employee in the sole
employ of the First Respondent, and that he admits, after receiving the
application, he misplaced the application and did not bring it to the attention
of the First Respondent.
[15] Counsel for the First Respondent advanced that the manner of service,
which, according to the First Respondent , was irregular, ought to leave the
matter akin to an ex parte application.
[16] In requesting the matter to be evaluated essentially as if brought ex parte,
the First Respondent argues that the matter falls foul of material non -
disclosures, on which grounds the application is to be dismissed.
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[17] An ex parte application by its nature requires the utmost good faith on the
part of an Applicant. The Court, on the return date or on the anticipated
date, has a discretion to set aside the Order with costs on any grounds of
non-disclosure. It should, however, be noted that the Court has a discretion,
and is not compelled, even if the non -disclosure was material, to dismiss the
application or to set aside the proceedings.[3]
[18] The threshold and utmost good faith required in respect of ex parte
applications do not apply in the same degree to applications brought by way
of notice. It is accordingly obvious why the First Respondent wishes the
Court to find that the matter was brought ex parte, as it would open a whole
line of attack on the applicant’s application on all issues the First
Respondent might believe ought to have been disclosed when the matter
was brought to Court initially.
[19] It is noteworthy, however, that the First Respondent did not make the current
application under the auspices of Rule 6(8) of the Uniform Rules of Court,
which states that:
“(8) Any person against whom an order is granted ex parte, may
anticipate the return day upon delivery of not less than 24 hours'
notice.”
[20] The First Respondent elected to bring the matter to Court under the
auspices of Rule 6(12)(c) of the Uniform Rules of Court, which states that:
“(c) A 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.”
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[21] It is important to make a clear distinction between the respective procedures
in respect of Rules 6(8) and 6(12)(c) of the Uniform Rules of Court.
[22] If an Applicant brings a matter to Court on an ex parte basis, such an
Applicant must set out in their papers facts to justify why notice to a
Respondent was either not possible or practical. This would be one of the
considerations a Court would take into account prior to hearing a matter
without affording the Respondent a right of audience under the principles of
audi alteram partem.
[23] A Respondent against whom an Order was granted ex parte , without any
notice and without the Applicant attempting notice, after convincing the Court
that it is just and equitable to do so, has an automatic right at their mere say
so, to set the matter down by giving 24 hours’ notice to anticipate the return
date. It is, under Rule 6(8), the final hearing of the matter that is brought
forward to be heard as anticipated by a party against whom an ex parte
application was granted.
[24] Under Rule 6(12)(c) , the position is materially different. It would make no
practical sense to avail Rule 6(12)(c) to a party against whom an ex parte
Order was granted, as Rule 6(8) already grants such a Respondent an
automatic right of anticipation.
[25] It is only a reasonable inference that Rule 6(12)(c) caters to a situation
where notice to a Respondent was given or attempted by an Applicant,
which a Court found to be sufficient at the time, and upon which Judgment
was granted in the absence of such Respondent participating in the
proceedings. It is this Respondent, against whom an Order was granted in
absentia, that can approach the Court under Rule 6(12)(c) of the Uniform
Rules of Court.
[26] The Rules of Court do not define nor set out how the absence of a
Respondent is defined or to be dealt with.
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[27] Counsel for the First Respondent suggested that the sub-rule is available to
any Respondent who was not present when the matter was heard in Court,
irrespective of the reason for such absence. I do not agree with the
aforesaid reasoning for several reasons.
[28] The Court believes that the absence of a party can only be condoned if the
Court is satisfied that the absence is not wilful.
[29] Although dealing with a Rescission of Judgment, I find no reason for this
Court not to align itself with the Court in Maujean t/a Audio Video Agencies
v Standard Bank of SA Limited[4], where the Court found that:
“More specifically, in the context of a default judgment, wilful connotes
deliberateness in the sense of knowledge of the action and of its
consequences, i.e. its legal consequences and freely taken decision to
refrain from giving notice of intention to defend, whatever the
motivation for this conduct might be”
[30] The same principles have been upheld by the Constitutional Court under
Rule 42 of the Uniform Rules of Court. [5]
[31] The principles which this Court believes to find application as much in
applications brought under the auspices of Rule 6(12)(c) are that a party
wishing to rely on this Subrule needs to convince the Court that his absence
at Court was not a result of knowledge of the proceedings and an election
not to partake therein. If a Respondent has knowledge of proceedings or
proceedings have been served on a Respondent that would bring knowledge
of the proceedings to the attention of a Respondent had such a Respond ent
applied reasonable care and diligence, then the absence of the Respondent
is wilful and the reliance on Rule 6(12)(c) of the Uniform Rules of Court is an
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abuse of Court process. To reason otherwise would open the doors for
Respondents to electively not partake in urgent application when they are
brought and set down, and to then, as a runt, claim an audience with the
Court for the reconsideration of the Order of Court at the leisure of the
Respondent at a time when it is more convenient for the Respondent to deal
with the matter.
[32] The Rule is designed rather to cater for situations where a Respondent
genuinely did not receive notice of an application which was served on them.
[33] The onus of proving that the Respondent’s absence was not wilful rests on
the Respondent, and is the first hurdle a Respondent needs to overcome
before the facts of a matter are reconsidered. If a Respondent is unable to
prove that he was not wilful in his non -appearance and the matter was
initially called, Rule 6(12)(c) of the Uniform Rules of Court would simply not
be available to such a Respondent.
[34] If a Court is satisfied that the absence of a Respondent has reasonably been
explained and the matter is to be heard under the auspices of Rule 6(12)(c)
of the Uniform Rules of Court, the question that arises is whether the
Respondent seeking a reconsideration of the initial order ought to prove that
the reconsideration hearing is to be held urgently, and whether a burden of
prove pertaining to urgency is placed on the Respondent.
[35] Rule 6(12)(c) of the Uniform Rules of Court is only available to a Respondent
in respect of urgent applications, and is not available to a Respondent in
respect of applications brought in the normal course.
[36] In all applications brought on an urgent basis under Rule 6(12)(c) of the
Uniform Rules of Court, a Court will consider whether the matter is
sufficiently urgent to be dealt with as such. This will be the case in
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applications that are opposed and unopposed. The obligation of an
Applicant to convince the Court on the urgency of the matter does not
disappear absent opposition by a Respondent.
[37] It stands to reason that the Court initially dealing with the matter, in granting
the Order, found that the underlying facts as between the Applicant and the
Respondent were of such a nature that it justified the matter to be heard as
an urgent application.
[38] It is further self -evident that an Applicant under this Rule had previously
wanted the matter to be heard urgently and wanted to afford the Respondent
the opportunity of having themselves heard.
[39] If a reconsideration application is brought within a reasonable time from the
date on which the initial Order was granted, I find no reason why the
reconsideration application ought not, as a right, be heard on an urgent
basis. It is nearly inconceivable that a Court will find an application urgent
and, a moment later, find that it is no longer urgent simply because a
moment has elapsed or a Respondent is now present. My view is that it
would be reserved for exceptional circumstances or matters where an undue
time delay has occurred from the moment the initial Order was granted to the
time when the reconsideration application is brought, for it to be considered
necessary for a Respondent to again prove urgency.
[40] In the current matter, I find no reason not to accept that the Applicant did all
they could in order to have the initial application properly served on the First
Respondent. On the face value of the Sheriff’s Return of Service, the
Applicant could expect that the application would be brought to the attention
of the First Respondent, and the Applicant was justified in advancing the
application in the manner in which they did to the Court on the 12 th of May
2026. The First Respondent has, however, by way o f conclusive proof,
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convinced the Court that the application did not come to the attention of the
First Respondent, and that their absence at Court when the matter was
called was not wilful.
[41] As such the Court is satisfied that the First Respondent has met the
jurisdictional requirements to secure a right of audience to have the matter
reconsidered under Rule 6(12)(c) of the Uniform Rules of Court.
RECONSIDERATION OF THE 12 MAY 2026 ORDER:
[42] The Constitution of the Republic of South Africa, 1996, provides
Municipalities with an autonomous role in providing good governance in their
communities. Together with legislation such as the Local Government
Municipal Systems Act, 32 of 2000, and similar legislation, it is evident that
Municipalities are legally obliged to ensure the adequate provision of basic
services and the proper upkeep of critical infrastructure related to their
provision. In the main application, the Applicant alleged that it was being
prohibited, illegally so, by the First Respondent from performing their
obligations in respect of the maintenance of the sewer pump situated on the
First Respondent’s property, which caused certain harm to the environment,
the community, and disrupted the constitutional mandate of the Applicant.
[43] In the Counterapplication brought by the First Respondent, the First
Respondent alleges that the Applicant is not properly maintaining the sewer
pump, and that the First Respondent ought to be granted carte blanche to
deal with the sewerage pump, maintain it themselves, and then invoice the
municipality for services rendered in respect of the pump station. From an
evaluation of the papers before me, it seems that the First Respondent takes
issue with the presence of the sewerage pump on its premises, and possible
safety concerns of allowing people who are unknown to the First
Respondent to attend its premises.
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[44] The dispute between the Applicant and the First Respondent , in the main,
which is to be decided on the return date of this application, is the legitimacy
of the positioning of the pump station, possible servitudes, and the
infringement of rights pertaining to the positioning of the sewerage pump.
[45] This Court , however, evaluates the matter on the immediate needs of the
broader community, the environment, and the balancing of the aforesaid with
the rights of the First Respondent.
[46] The current matter is distinguishable from several other legal president
where municipalities have unfortunately absconded from their duties towards
service delivery and maintenance. At the very least, the Applicant cannot be
faulted for their attempts to render services and maintenance, which is
evident from the prima facie facts before me. The Court, during argument,
raised with the respective Counsel whether there is any reason why the First
Respondent should not allow the Applicant the opportunity to fulfil their
constitutional mandate to provide the services and maintenance in respect of
the sewerage pump. No such reason could be advanced.
[47] Whilst it is commendable that individuals and entities sometimes step in to
perform services that municipalities lack the capacity to provide, or from
which municipalities simply abdicate , these functions can never become the
primary objective or responsibility of individuals or entities. It can also not be
argued, absent failure to perform by a municipality, that individuals may
simply render services to a municipality, or, as in this case, prohibit a
municipality from rendering such services, and then render invoices to a
municipality thereafter. The proverbial administrative can of worms that such
a proposition would open is unthinkable. Section 217 of the Constitution
would be circumvented in its entirety if individuals were allowed to simply
render services to a municipality and issue invoices thereafter without
render services to a municipality and issue invoices thereafter without
following a procurement process or being requested to do so.
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[48] In the current matter , however, the ownership of the sewerage pump
remains a disputed issue which the Court ultimately needs to evaluate.
Prima facie , the sewerage pump is the property of the Applicant; it is
common cause that the absence of proper maintenance of the sewerage
pump poses significant health and safety risks to the community and the
environment. Under these circumstances, the Court is satisfied, as an
urgent interim measure, to extend the mandate in respect of the pump to
include provisions during this time, for a possible situation where the
constitutional mandate of the Applicant is not being performed. Neither of
the Applicant nor the First Respondent seriously contested the aforesaid,
and after argument was concluded, I believe the parties were in essence in
agreement that this is how the matter ought to be dealt with as an interim
measure.
[49] Given the nature of the matter and the underlying disputes, the First
Respondent requested the Court to incorporate in the Order certain
provisions to safeguard the First Respondent and the occupants of the
premises to discount any safety concerns the First Respondent may have.
Although I believe the broad terms as prayed for by the First Respondent
might lead to undesirable effects and the possibility of interfering with the
Applicant’s mandate, I see no reason why an Order at least protecting the
interest of the First Respondent to a certain degree cannot be incorporated
in the initial Order as granted.
[50] On the prima facie facts available, the Order granted on the 12 th of May
2026, cannot be faulted to the degree that it ought to be set aside
completely.
[51] The First Respondent was previously not before the Court, and having had
the benefit of their input, the Court is willing to, given the nature of the
matter, vary the Judgment of 12 May 2026, very slightly to accommodate
some of the concerns of the First Respondent.
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[52] The variation is ordered simply because the issues as raised by the First
Respondent would have been raised on the 12 th of May 2026, and I have
little doubt that the Court on that day would have made an Order in line with
the Order this Court ultimately makes.
COSTS:
[53] The Court, during argument, indicated to both the Applicant and the First
Respondent that neither party obtained real success in respect of the matter
at hand, but in order to avoid further emotion between the parties pending
the resolution of the final disputes, that an Order be made for the costs of the
current application to be costs in the main application to which no objection
was received. I remain satisfied that this is a just Order in respect of costs.
CONCLUSION:
[54] The Court is accordingly satisfied that the Applicant needs to be provided
with a sufficient opportunity of performing their constitutional mandate, to
gain access to the premises in question, and to ensure proper compliance
with their duties.
[55] Should the Applicant fail to perform their duties, the Court can find no reason
why the First Respondent ought not, at that stage, be allowed to intervene to
the benefit of themselves and the greater community and environment to
ensure a disaster does not unfold. The aforesaid intervention will , however,
only be allowed under the most extreme of circumstances, and is not to be
regarded by the First Respondent as carte blanche to interfere with the
Applicant’s infrastructure, as the First Respondent wishes.
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[56] The Court is satisfied that certain safety measures may be put in place to
safeguard the personal interest of the First Respondent and the occupants of
its premises.
ORDER:
[57] For all the aforesaid reasons, the following Order is made:
[56.1] The First Respondent is granted leave to have the Order of 12
May 2026 reconsidered under Rule 6(12)(c) of the Uniform Rules
of Court. The Applicant is authorised to enter upon the First
Respondent’s property situated at Portion 54 of Erf 2[...], A[...] ,
Middelburg.
[56.2] The Applicant is granted immediate access to the sewer pump
station situated on the First Respondent’s property, and to take all
steps necessary to prevent environmental harm , including
addressing sewerage spillage into the natural water stream.
[56.3] The Applicant is authorised to inspect, repair, maintain, and
restore the sewer infrastructure to full working order.
[56.4] The First Respondent is interdicted from any act or omission
which interferes with or contributes to the malfunctioning of the
sewer system.
[56.5] The First Respondent is interdicted and restrained from
obstructing or denying the Applicant access to the property and
the pump station.
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[56.6] The Applicant is authorised, if necessary, to obtain the assistance
of the South African Police Service to give effect to the Order.
[56.7] Any representatives of the Applicant who attend the First
Respondent’s premises shall be clearly identified and shall, upon
request, make available their identification to prove their
employment with the Applicant when attending the First
Respondent’s premises.
[56.8] In respect of routine inspections and maintenance of the sewer
pump, the Applicant shall give the First Respondent 24 hours'
notice of the proposed attendance at the First Respondent’s
premises.
[56.9] In respect of the emergency preparation of the sewer pump or
emergency attendance at the sewer pump, the 24 -hour period
shall not be applicable, and the Applicant shall have undisturbed
and immediate access to the sewer pump.
[56.10] The Applicant’s attendance at the First Respondent’s premises
shall be limited to reasonable access from the entrance of the
premises to the sewer pump and shall be confined to the area in
and around the sewer pump for the performance of necessary
services as identified in this Order.
[56.11] Any work required to be performed on the First Respondent’s
property by the Applicant in terms of this Order shall, at all times,
be performed having due regard to all of the First Respondent's
rights (including but not limited to its rights of ownership), and
including the rights of the occupants thereupon. The Applicant
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shall accordingly not intimidate and interfere with any persons or
occupants of the First Respondent’s premises , including such
parties’ rights of beneficial use and enjoyment of the property.
[56.12] Should the Applicant, at any stage, fail to properly undertake all
steps necessary concerning the sewer pump station, and fail to
remedy such failure after being provided 48 hours written notice
by the First Respondent, then and only in that event shall the First
Respondent be authorised to remediate and maintain the sewer
pump station on its property to address sewerage spillage into the
natural water stream and to prevent environmental harm.
[56.13] The right of the First Respondent to remediate and maintain the
sewer pump station shall only manifest absent the Applicant
starting remediation works within the timeframe stipulated, and
finalising the remediation works within a reasonable timeframe.
[56.14] Any remedial works performed by the First Respondent shall only
be performed by suitably qualified persons.
[56.15] Should any representatives of the intimidating or interfere with any
representative so that the First Respondent or the residents on
the property, then and in that event, the First Respondent shall be
entitled to enlist the help of the South African Police Service to
give effect to this Order.
[56.16] The costs of the urgent application and the reconsideration
application are to be determined when Part B of the application is
heard.
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________________________
H F FOURIE AJ
ACTING JUDGE OF HIGH COURT, MIDDELBURG
Judgment reserved on: ___ May 2026
Date of delivery: ___ May 2026
______________________________________________________________
[1] Deputy Sheriff v Goldberg 1905 TS 680
[2] SASFIN Bank Ltd and Another v Vareltzis (15432/2013) [2019] ZAGPPHC
436 (23 August 2019)
[3] Schlesinger v Schlesinger 1979 (4) SA 342 (W) at 348E – 350B
See also National Director of Public Prosecutions v Basson 2002 (1) SA 419
(SCA) at 21
[4] Maujean t/a Audio Video Agencies v Standard Bank of SA Limited 1994 (3)
SA 801 (C)
[5] Zuma v Secretary of the Judicial Commission of Inquiry into Allegations of
State Capture, Corruption and Fraud in the Public Sector , Including Organs
of State and Others [2021] ZACC 28