REPUBLIC OF SOUTH AFRICA
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
GAUTENG LOCAL DIVISION, JOHANNESBURG
CASE NO: 2023-070478
In the matter between:
In the matter between:
SUNIL GENESS APPLICANT
and
THE MELROSE RATEPAYERS ASSOCIATION FIRST RESPONDENT
THE CITY OF JOHANNESBURG SECOND RESPONDENT
MELROSE SPORTS AND RECREATION CLUB NPC THIRD RESPONDENT
In re:
THE MELROSE RATEPAYERS ASSOCIATION APPLICANT
and
THE CITY OF JOHANNESBURG FIRST RESPONDENT
SUNIL GENESS SECOND RESPONDENT
MELROSE SPORTS AND RECREATION CLUB NPC THIRD RESPONDENT
This judgment is handed down by the Judge whose name is reflected herein, and is
submitted electronically to the parties or their legal representatives by email. It is
further uploaded to the electronic file of this matter on CaseLines. The date of hand-
down is deemed to be 29 May 2026.
ORDER
DELETE WHICHEVER IS NOT APPLICABLE
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO OTHERS JUDGES: YES/NO
(3) REVISED: YES/NO
_________________
CB GARVEY AJ 29 MAY 2026
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1. The joinder of the third respondent, the Melrose Sports and Recreation Club
NPC, to the main application by way of the first respondent’s amended notice of
motion dated 4 March 2024, is set aside as an irregular step in terms of rule 30.
2. The first respondent shall pay the costs of the application.
JUDGMENT
GARVEY AJ
The parties
[1] The applicant is Mr Sunil Geness. He is the second respondent in the main
application.
[2] The first respondent is the Melrose Ratepayers Association (“ the MRA”). It is
the applicant in the main application.
[3] The second respondent is the City of Johannesburg (“ the City ”). It took the
decision under review. It took no part in this application.
[4] The third respondent is the Melrose Sports and Recreation Club NPC (“ the
MSRC”). It is the party the MRA seeks to join. Its joinder is the subject of this
application.
Introduction
[5] This is an application in terms of rule 30. The applicant seeks to set aside the
joinder of the MSRC as an irregular step.
[6] The MRA attempts to effect the joinder by an amended notice of motion
delivered under rule 53(4). The applicant says rule 53(4) does not permit the
joinder of a party. For the reasons that follow, I agree.
Background
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[7] The main application is in two parts. Part A seeks interim interdictory relief.
Part B is a review under rule 53.
[8] In Part B the MRA seeks to review and set aside a decision of the City. The
decision granted usage rights over a portion of erf 1[ … ] M[… ] E[… ], known as
the M[… ] B[…] C[… ].
[9] The MRA launched the application on 18 July 2023. The applicant opposed it.
He delivered his answering affidavit in Part A on 21 November 2023. The
MRA replied on 16 January 2024.
[10] On 19 January 2024 the City dispatched the record under rule 53(1)(b). The
record indicated that the rights had been granted to the MSRC.
[11] On 4 March 2024 the MRA delivered an amended notice of motion and a
supplementary affidavit. It relied on rule 53(4). It sought to join the MSRC as
third respondent. The proposed amendment was directed at both P art A and
B.
[12] The applicant objected. On 27 March 2024 he delivered a notice in terms of
rule 30. He gave the MRA the opportunity to remove the cause of complaint.
The MRA did not do so. On 6 May 2024 the applicant launched this
application.
[13] The MRA opposes the application. It contends that rule 53(4) entitles it to join
the MSRC as of right.
The competing contentions
[14] The applicant’s case is short. Rule 53(4) permits an applicant to amend, add
to or vary the terms of its notice of motion and to supplement its affidavit. It
does not permit the joinder of a new party. The proper course, he says, is an
application for joinder.
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[15] The MRA’s case is that rule 53(4) operates as of right. It says the rule entitles
it to join a party disclosed by the record, without an application to join. It says
rules 10 and 28 have no application in the context of rule 53(4).
Rule 53(4)
[16] Rule 53(4) provides:
“The applicant may within 10 days after the registrar has made the record
available to the applicant, by delivery of a notice and accompanying
affidavit, amend, add to or vary the terms of such applicant’s notice of
motion and supplement the supporting affidavit.”
[17] The rule must be read according to its terms. It permits three things. The
applicant may amend the notice of motion. It may add to or vary the terms of
that notice. It may supplement the supporting affidavit.
[18] Each of these acts is directed at the applicant’s own papers. The rule speaks
of the terms of the notice of motion and of the supporting affidavit. It says
nothing of parties. It does not mention joinder.
[19] To “add to” the terms of a notice of motion is to add to the relief sought or the
grounds advanced. It is not to add a party. The language does not carry that
meaning.
[20] The purpose of the rule confirms the construction. Rule 53(4) exists to spare a
review applicant the expense and delay of an amendment once the record is
to hand. It allows the applicant to refine its own case considering the record. It
is a facility for amendment. It is not a mechanism for joinder.
[21] The joinder of a party raises different considerations. The party to be joined
must be given notice. It must be allowed to resist its joinder. It must be
allowed to object to an amendment. A direct and substantial interest must be
shown. Rule 53(4) provides for none of this. A joinder effected under it
bypasses these protections.
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[22] On a proper construction and interpretation, rule 53(4) cannot be extended to
amend to add or join a party. The first respondent’s reliance on it for that
purpose is misguided.
[23] I am fortified in this view by Pine Glow Investments (Pty) Ltd v Minister of
Energy and Others (3525/2020) [2021] ZAMPMBHC 5 (22 January 2021).
There the applicant sought to use rule 53(4) to amend Part A of a notice of
motion, which fell outside the review under Part B. The court held that rule
53(4) is designed for reviews. It held that the amendment fell outside the rule
and that the proper procedure lay elsewhere. It held that the objection under
rules 30 and 30A was correctly taken, and that costs should follow that result.
[24] The principle applies here. Rule 53(4) is confined to its purpose. It cannot be
stretched to do work for which it was not designed. The joinder of a party is
such work.
The proper procedure
[25] The procedure for joining a party in application proceedings is rule 10. By
virtue of rule 6(14), the provisions of rule 10 apply to applications. A party
seeking joinder must show that the party to be joined has a direct and
substantial interest in the matter. The party to be joined must be afforded the
opportunity to be heard.
[26] The MRA may well have grounds to join the MSRC. The record suggests that
the MSRC holds the rights in issue. But that is a matter for an application to
join the MSRC to the current matter . No such application is before me. I am
not called upon to decide whether the MSRC should be joined.
Rule 30 and rule 30A
[27] Rule 30 allows a party to apply to set aside an irregular step. Rule 30A
provides a remedy for non-compliance with the rules.
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[28] The use of rule 53(4) to join the MSRC was a non- compliance with the rules.
It was a step taken in disregard of the rules that govern joinder. T he applicant
and the MSRC, were denied the protections that a joinder appliaction affords.
[29] The applicant followed the procedure laid down in rule 30. Notice was given
and the MRA was afforded the opportunity to remove the complaint within the
time allowed. The MRA did not.
[30] The rule 30 objection was properly taken. The joinder of the MSRC by way of
amendment is irregular within the meaning of rule 30A read with rule 30. It
falls to be set aside.
Costs
[31] Costs follow the result. The applicant has succeeded. There is no reason to
depart from the ordinary rule. The first respondent will pay the costs of the
application.
[32] In the result, the following order is made:
1. The joinder of the third respondent, the Melrose Sports and Recreation
Club NPC, to the main application by way of the first respondent’s
amended notice of motion dated 4 March 2024, is set aside as an
irregular step in terms of rule 30.
2. The first respondent shall pay the costs of the application.
_______________________________
C B GARVEY
ACTING JUDGE OF THE HIGH COURT
GAUTENG DIVISION
JOHANNESBURG
Date of hearing: 18 March 2026
Date of judgment: 29 May 2026
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Appearances
For the applicant: Adv B D Stevens
instructed by Morgan Law Inc
For the first respondent: Adv K Reddy
instructed by Shirish Kalian Attorneys