REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: YES
11 Moy 2026
DATE
In the matter between:
SANNAH SANKIE MOREBUDI
JOSEPH MABUSENA MOREBUDI
NEO-THANDO HOLDINGS (PTY) LTD
and
BRAD BARKER
CHARLES LUYCKX
ELLIOTT MOBILITY (PTY) LTD
NEO THAN DO ELLIOTT MOBILITY (PTY) LTD
ORDER
CASE NO: 21392 / 2020
FIRST APPLICANT
SECOND APPLICANT
THIRD APPLICANT
FIRST RESPONDENT
SECOND RESPONDENT
THIRD RESPONDENT
FOURTH RESPONDENT
1. Leave to appeal to the Full Court of this division is granted against the cost
order.
2. The costs of this application will be costs in the appeal.
JUDGMENT
TOLMAY J:
[1] The first and third respondents ("the respondents") seek leave to appeal the
cost order granted on 16 April 2020 by Sardiwalla J in respect of Part A of the
application that was brought by the applicants. The judgment was, however, only
delivered on 22 July 2022.
[2] The respondents applied for leave to appeal but ultimately did not follow
through with it as Sardiwalla J retired and as they assumed the applicants would
refrain from enforcing the order given the lapse of time and lack of action. However,
on 26 January 2026, the applicants froze the bank accounts of the respondents. This
led to the urgent application that came before me. An order was granted pending the
outcome of the application for leave to appeal, which I undertook to hear due to the
fact that Sardiwalla J had retired.
[3] The background and circumstances of the granting of the order is significant.
The matter was decided on the papers without hearing oral argument. The judgment
shows that some misdirection occurred. In the judgment the court stated that the
respondents had not filed an answering affidavit or heads of argument. However, this
assertion was inaccurate as the respondents submitted an answering affidavit, heads
of argument, and supplementary heads of argument. Apparently, the judge did not
take the respondent's account into consideration. Additionally, he issued a punitive
cost order without offering any justification for it.
[4] The respondents accept that by virtue of Part A of the applicants' application
having been given effect to - the 16 April 2020 order was complied with - and Part B
of the applicants' application having ultimately succeeded - as Neo Thando Elliot
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Mobility (Pty) Ltd ("NTEM") was placed under final winding-up on appeal on 17 March
2025, an appeal in respect of the merits of Part A will not have any practical effect.
They insist however that considering the facts in this application leave to appeal
against the cost order should be granted.
[5] Section 17(1 )(a)(i) and (ii) of the Superior Courts Act1 provides that leave to
appeal may be granted if there is a reasonable prospect of success on appeal, or if
there exists another compelling reason for granting leave to appeal. The misdirection
by the Judge constitutes a rational basis for the conclusion that there are reasonable
prospects of success on appeal.
[6] As far as leave to appeal against a cost order is concerned, this will in terms of
s16(2)(a)(ii) of the Superior Courts Act only be granted if exceptional circumstances
exist. In Van Staden NO v Pro-Wiz Group (Pty) Ltd, 2 the SCA confirmed that "a failure
to exercise a judicial discretion would (at least, usually) constitute an exceptional
circumstance." Exceptional circumstances and the absence of the judicial exercise of
the court's discretion is further apparent where the court a quo in granting a costs
order did not give any consideration to the version of the party against whom the costs
order was granted and no reasons are given for the costs order. In Vodacom (Pty) Ltd
v Makate and Another3 the Constitutional Court dealt extensively with the duty of a
court to give proper consideration to the issues before the court and to give adequate
reasons.
[7] In this matter the court's misdirection was not only that it did not give reasons
for the cost order, but also that it did not consider the answering affidavit or the heads
of argument. This must constitute exceptional circumstances as envisaged by s16(2)
(ii).
(8] The applicants argument was however that the respondents failed to object to
the taxation of costs despite launching an appeal and delayed for approximately six
1 Act 10 of 2013.
1 Act 10 of 2013.
2 Van Staden NO v Pro-Wiz Group (Pty) Ltd 2019 (4) SA 532 (SCA) at para 8. See also Logistic Technologies
(Pty) Ltd v Coetzee and others 1998 (3) SA 1071 (W).
3 Vodacom (Pty) Ltd v Makate and Another 2025 (6) SA 352 (CC) at paras 61-62.
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years to prosecute the appeal. The applicants invoke the doctrine of peremption,
arguing that the respondents waived their right to appeal the cost order. The
respondents emphasised that their actions, including seeking leave to appeal and
serving amended applications, indicate an intention to challenge the original orders,
contrary to the applicants' assertions. They assert that the applicants' delay in
executing the taxed bill of costs (from June 2021 to January 2026) is viewed as
inconsistent with a waiver, suggesting instead that respondents retained their right to
appeal. The argument in relation to peremption should be properly ventilated on
appeal. I am of the view that in the specific circumstances of this case exceptional
circumstances do exist and that leave to appeal should be granted.
[9] The following order is made:
1. Leave to appeal to the Full Court of this division is granted against the cost
order.
2. The costs of this application will be costs in the appeal.
RTOLMAY
JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
This judgment was prepared and authored by the judge whose name is reflected and
is handed down electronically by circulation to the parties/their legal representatives
by email and by uploading it to the electronic file of this matter on Case lines . The date
for hand-down is deemed to be 11 May 2026.
APPEARANCES:
For the Applicants
Instructed by
For the 1st and 3rd Respondent
Instructed by
Matter heard on
Judgment date
AdvT Ndaba
Motaung MS Attorneys Inc
Adv L Hollander
Nochumsohn Pretorius Inc.
24 April 2026
11 May 2026
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