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
(WESTERN CAPE DIVISION)
Case No. 2026-095065
CAPE POINT WINE (PTY) LTD First applicant
CPW PROPERTIES (PTY) LTD Second applicant
and
SYBRAND VAN DER SPUY First respondent
SERINA INVESTMENTS (PTY) LTD Second respondent
Coram: Pangarker J
Hearing date: 18 May 2026
Judgment delivered: 9 June 2026
Summary: Urgent application for interim interdict – Requirements of Uniform Rule
6(12) considered – Whether the applicants delayed launching the application after the
occurrence of the incident which gave rise to the application – Whether the explanation
for the delay is cogent - Requirement in terms of Rule 6(12)(b) that the applicant s must
set out reasons why they claim that substantial redress cannot be obtained at a
hearing in due course , is a peremptory requirement - Whether the applicants have
fulfilled all the requirements of Rule 6(12)(b) and met the threshold for urgency
ORDER
The application is struck from the roll with costs, including the costs of two counsel
where so employed (scale C).
JUDGMENT
___________________________________________________________________
PANGARKER J
Introduction
[1] In the picturesque coastal suburb of Noordhoek, storm clouds are brewing above
the Chapmans Peak Estate, home to the Cape Point Vineyards Estate (the Estate). The
Estate houses, inter alia, a restaurant and a winery, the latter sourcing grapes from the
various vineyards located on the Estate.
[2] The current application, launched on an urgent basis, is but another step in an
ongoing series of litigation instituted between Stephen Alexander Newton (Newton), the
sole director and owner of Cape Point Wine (Pty) Limited (WineCo), and owner of CPW
Properties (Pty) Ltd (CPW Properties), and Sybrand van der Spuy (van der Spuy), the
sole director, owner and controlling mind of Serina Investments (Pty) Limited (Serina).
As the applicants’ counsel stated during the hearing, Newton and van der Spuy, and
their respective juristic entities involved in the commercial transactions forming the
subject matter of the Estate and various disputes between them , are ‘at daggers
drawn’1.
The parties’ commercial relationship and disputes
[3] The business relationship between the parties is governed by a relatively
complex suite of agreements concluded in Cape Town and London between 2022 to
2024. In 2022, Newton and van der Spuy commenced exploring a business relationship
related to the Estate. This culminated in a Memorandum of Understanding (MOU2)
concluded in February 2024. A second Memorandum of Agreement was concluded in
September 2024, referred to herein as MOU5.2 It is common cause and apparent from
the application, that Newton and van der Spuy each have more than one company
associated with them.
[4] Newton and van der Spuy and their companies are embroiled in various disputes
which emanate from the broader transaction: the sale of the winery and various
properties by van der Spuy and his companies, including Serina, to Newton and his
companies, including WineCo and CPW Properties. The winery business is separate
from the restaurant business. The parties have not yet concluded their negotiations and
the final instalment of these complex agreements. To the extent necessary, the
backdrop to the broader dispute, which is set out in great detail in the founding affidavit,
is described below.
[5] The parties to the MOU2 agreed on a sectional title scheme in respect of the
consolidated property comprised of various portions making up the immovable property
to be registered as Erf 5[...] Noordhoek. The immovable property comprises portions of
Farm De Goede Hoop No. 934 . Van der Spuy and his companies will dispose of the
wine business as a going concern to Wine Newco, an as yet to be identified company of
1 The Cambridge Dictionary (dictionary.cambridge.org) describes ‘at daggers drawn’, as a state of
extreme unfriendliness and mistrust
2 FA3 and FA4
Newton’s which would take transfer of the wine business from van der Spuy
Investments.
[6] The transaction related to the restaurant business was implemented through its
transfer to Cape Point Vineyards (Pty) Ltd (CPV) which is majority -owned by van der
Spuy. WineCo is 75% indirectly owned by Newton through a company, The Alexander
Collection (Pty) Ltd. The sectional title scheme is described in MOU2 as follows:
“Sectional Scheme” means the proposed sectional title scheme in respect of
the Remainder and the buildings thereon, which scheme shall be known as the Cape
Point Vineyards Sectional scheme situated at Cape Point Vineyards, Silvermine
Road, Noordhoek, Cape Town, comprising 2 (two) sectional title units, 1 (one)
exclusive use area and 2 (two) real rights to extend, as depicted in the fully
approved sectional plan S.G. No. D63/2023:”
[7] WineCo occupies a portion of the sectional title scheme which includes office
space, an underground wine cellar, a warehouse, outdoor storage and parking in a
building or separate property which is not located on the Estate. Th e separate property
is Erf 7[...], situated approximately 1,2 kilometres to the west of the Estate 3 off
Noordhoek Main Road. Serina is the owner of the building and Erf 7[...].
[8] In terms of the MOU2, the WineCo portion (as described by the applicants) is
due to be transferred to the second applicant, CPW Properties. The space currently
occupied by WineCo will constitute section 1 of the proposed sectional title scheme
made up of the building and surrounding area and the two exclusive use areas. The
remainder of the building, occupied by Serina and another tenant, would be section 24.
3 See FA7, FA8
4 More specifically, in terms of clause 2.1.4 of MOU2, the cellar, currently occupied by WineCo and its
employees, refers to:
[9] It is common cause that the sectional title scheme has , as yet, not been
registered. The transfer of the winery to Newton’s yet to be identified company has also
not yet occurred. Serina is re quired to transfer the cellar space, currently partially
occupied by WineCo, to a company to be identified , which shall be 75% owned by The
Alexander Collection. CPW Properties was identified as the new company and
accepted it’s right to transfer of the WineCo portion in terms of the MOU2. The intention
of the parties is that CPW Properties5 would then lease the portion of the cellar complex
to WineCo.
[10] The applicants allege that CPW Properties has a clear right to the transfer of the
portion of the cellar complex , pending the transfer of such portion by Serina .
Furthermore, it is alleged that WineCo took occupation of such portion in 2024 in
anticipation of such transfer and conducts the winery business from this portion of the
cellar complex . To clarify, it is undisputed that the building which houses the cellar
complex is owned by Serina, which is owned and controlled by van der Spuy.
[11] It is also not in dispute that WineCo and its employees occupy such portion of
the cellar complex6, notwithstanding that transfer as described above has not yet been
registered in CPW’s name. In addition to the cellar, WineCo uses the parking spaces
and warehouse in the cellar complex. It is also important to note that there is a single
office in section 1 which is not occupied by WineCo: it is occupied by Mary -Ann de Wet
(de Wet) , a financial director of Cape Point Vineyards (CPV) who is also a qualified
chartered accountant.
“Cellar” means section 1, the exclusive use areas associated therewith and the real right to
extend in the proposed sectional scheme to be known as Chapman’s Peak Estate Sectional
Scheme situated at Chapmans Peak in the City of Cape Town, comprising 2 (two) sectional title
units, 5 (five) exclusive areas and a real right to extend, as depicted in the fully approved
sectional plan S.G. No. D535/2022.”
5 The affidavits also refer to Cellar Newco, the as yet to be identified company
6 Portion 1
[12] From an overview of the various affidavits and annexures filed in the application,
both Newton and van der Spuy express their intentions to implement the suite of
transactions which are broadly described above. Notwithstanding the expressions of
intent, and to illustrate the current “daggers drawn” status, they (and some of the
entities associated with them) are engaged in arbitration proceedings before the
arbitrator, LA Rose-Innes SC, a member of the Cape Bar , in which they dispute various
matters. My understanding is that Newton and WineCo referred matters to arbitration, to
which van der Spuy and his companies raised a counterclaim. Newton and his
companies thereafter raised a further counterclaim in the arbitration proceedings, which
proceeds later during the year.
[13] The arbitration proceedings aside , and again in broad/general terms, Newton
also accuses van der Spuy of defam ing him by corresponding with his business
associates and encouraging them not to do business with him (Newton). Van der Spuy
alleges, inter alia, that Newton is dishonest in that “no agreement with him is worth the
paper it is written on” 7. According to van der Spuy, there are only two options: all-out
war or settlement.
[14] On the other hand, Newton recently instituted various High Court applications
against van der Spuy: an application to interdict him (van der Spuy) from trespassing on
land on the Estate, which is owned by Newton’s Alexander Land, and an application by
Newton and Hannes Meyer, chief executive officer of CPV, to interdict van der Spuy
from publishing defamatory statements about them.
[15] Aside from the above, in March van der Spuy launched an urgent application in
the arbitration seeking an interim interdict to prevent WineCo from making and selling
wine from certain vineyards on the Estate 8. Subsequently, Newton sought a variation of
the arbitration award and an interlocutory application in the arbitration proceedings. To
the arbitration award and an interlocutory application in the arbitration proceedings. To
place the above in further context, the arbitrator (in van der Spuy’s urgent application ),
7 RA8 – email by van der Spuy to Stuart Makin on 30 December 2025
8 In par 34 of the replying affidavit, Newton informs that the application was largely dismissed
granted one of van der Spuy’s companies, Noordhoek Wine Estate (Pty) Ltd (NWE), the
right to inspect the third-party cellar in Somerset West which was being used by
WineCo.
[16] When van der Spuy attempted to exercise the right personally, Newton and
WineCo applied urgently for a variation of the award to preclude NWE from nominating
van der Spuy, on behalf of the company, to exercise the right to inspect the third party
cellars on its ( NWE’s) behalf. The motivation behind this step was, according to
Newton, van der Spuy’s belligerent behaviour . The arbitrator granted the urgent
variation application, thus precluding NWE from nominating van der Spuy as the person
responsible to conduct the inspection of the third-party cellar.
[17] According to the applicant s, various incidents occurred in June 2025, following
on van der Spuy’s attempt to cancel the MOU2. The validity of the cancellation was
disputed by Newton and this led van der Spuy to withdraw the purported c ancellation.
The applicants allege that van der Spuy has entered the office of Anzette Visser
(Visser), assistant winemaker at WineCo, and issued threats regarding the movement
of furniture; that he stormed into the portion of the cellar complex occupied by WineCo,
interrupted a meeting, and accosted Willem Vo rster (Vo rster)9 who had earlier
commented on the suitability of van der Spuy’s wife (Erna Swart) as a director of
WineCo; and, furthermore, that van der Spuy he entered the WineCo meeting and
threatened to lock the employees in the cellar.
[18] The result of these incidents recorded in correspondence and emails exchanged
between the parties’ attorneys, was that in 2025 WineCo installed an electronic access -
control system, capable of being activated by persons whose fingerprints are registered
with WineCo, including employees and licensees. Van der Spuy ’s fingerprints are not
stored with WineCo, yet in August and November 2025, he gained access to WineCo’s
stored with WineCo, yet in August and November 2025, he gained access to WineCo’s
portion of the cellar to photograph wine labels and in the process, it is alleged that he
9 Vorster is Chief Operating Officer and Chief Financial Officer of Fish Hoek Company Investments Ltd,
the holding company of Newton’s business interests and representative of the Alexander Collection
interrupted a photo shoot by Emma Swanepoel (Swanepoel), the marketing manager at
the Alexander Estate. Van der Spuy gained access via innocent and/or unsuspecting
WineCo employees who are authorised to enter the WineCo portion of the cellar.
[19] On 18 March 2026, Vorster gave de Wet notice to vacate the single office in the
cellar complex to make space for WineCo personnel 10. On 30 March and 7 April 2026
respectively, Vorster followed up with a WhatsApp message 11 to de Wet indicating she
had not yet vacated the office, that arrangements could be made to move her items with
care and that her items/furniture could be collected at her convenience. Despite these
follow-ups, de Wet did not vacate her office. Matters came to a head the next day.
The pepper spray gun incident
[20] On 8 April 2026, van der Spuy entered the WineCo portion of the cellar offices
and proceeded to de Wet’s office, directing her to accompany him outside. She refused,
and he entered the adjacent boardroom where Vorster was working. Vorster and
Swanepoel observed that van der Spuy was in possession of a black object /device
which resembled a handgun and which they both believed to be a firearm.
[21] According to Newton, who relies on the versions of the incident presented by
Vorster and Swanepoel 12, v an der Spuy shouted that de Wet would not vacate her
office, that he was there to help protect her (and would bring dogs and security officers
if necessary) and he waved the “weapon” in the air. At this stage , de Wet remained in
her office. Vorster informed van der Spuy that the office area formed part of the space
allocated to WineCo. Meanwhile, from her position at the front office, Swanepoel
observed that van der Spuy carried the unidentified object and she confirms Vorster’s
account that van der Spuy spoke in a loud, agitated and threatening manner.
10 The applicants refer to “licensees”
11 WV1
12 Newton was not present at the cellar offices on the day of the incident; Vorster and Swanepoel
deposed to affidavits
[22] Van der Spuy eventually left the boardroom, and Vorster and Swanepoel state
that they heard him inform de Wet that she would not be leaving her office. Shortly
thereafter, van der Spuy and de Wet passed through the front office and exited to the
parking area where it was observed and heard that van der Spuy verbally instructed
and physically demonstrated to de Wet, how to turn the safety off the device and how to
pull the trigger in order to shoot. Van der Spuy thus discharged and fired a projectile
from the device, which struck the ground.
[23] On the way back to de Wet’s office, van der Spuy was heard to instruct her that
“if they bothe r you , just shoot them” 13. The reference to “they”, according to the
applicants, is a reference to WineCo and its employees . Thereafter, van der Spuy left
the device with de Wet and returned to Vorster, where a heated exchange ensued with
van der Spuy accus ing WineCo of squatting in the cellar complex , which Vorster
denied. Furthermore, van der Spuy made clear that de Wet would not vacate her
office.14
[24] Vorster explains in his affidavit that WineCo has occupied the space for years
and that van der Spuy previously allocated the office space between CPV and WineCo
employees. During the heated exchange, van der Spuy is alleged to have taken up a
threatening stance and block ed the doorway of the boardroom. Vorster asked van der
Spuy to leave, which he initially refused to do, but eventually he left of his own accord.
Vorster thereafter went to de Wet’s office requesting to see (what he believed was) the
firearm. De Wet informed Vorster that she did not intend to use the device.
[25] At this point, it is necessary to state that the device/”weapon” was not a fire arm
but rather, in simple terms, a pepper spray gun.15 From the photograph taken by Vorster
after the incident, it is evident that the device certainly resembles a black fire arm.
Vorster and Swanepoel indicate that they reasonably believed that van der Spuy was
Vorster and Swanepoel indicate that they reasonably believed that van der Spuy was
13 Founding affidavit, p38
14 It is also alleged that van der Spuy made disparaging remarks about Newton
15 FA21, RA3
armed with a fire arm and that he had encouraged de Wet to shoot them as well as
WineCo employees.
[26] On the same day, Vorster laid criminal charges against van der Spuy at F ish
Hoek SAPS, which eventually lead to his arrest on a charge of pointing a firearm. it is
apparent from the affidavits filed, that the charge was later changed to assault. In view
of the incident on 8 April, the applicants seek an interim interdict against the
respondents as set out later in the judgment.
[27] The applicants contend that once the extent and existence of WineCo’s right to
occupy the current portion of the cellar and to exclude van der Spuy prior to transfer, is
finally determined, either by way of arbitration or a civil action, the need for interim relief
would no longer exist. Newton ad ds that if van der Spuy is barred from WineCo’s
portion of the cellar complex, he would still be able to access the remainder of the area,
including section 2 and the common area.
[28] The applicants rely on two prima facie rights. Firstly, WineCo’s contractual right
to exclusive and und isturbed possession of the portion of the cellar complex (which it
currently occupies) in view of van der Spuy’s repeated incursions into that section and
his interruption of the work of WineCo employees, licensees and contractors. Secondly,
the right of WineCo employees and license es to bodily integrity and to not be
threatened with violence. In view of van der Spuy’s recent conduct, Newton alleges that
the rights of these persons have also been infringed. It is necessary to indicate that the
persons referred to have not been identified nor have any individual employees,
licensees and contractors of WineCo been cited in the application.
[29] As for the requirement of a well -grounded apprehension of irreparable harm if
interim relief is not granted, Newton relies on the conduct of van der Spuy during the
course of 2025 and 2026 in that he had interrupted work despite receipt of a cease and
course of 2025 and 2026 in that he had interrupted work despite receipt of a cease and
desist warning from the applicants’ legal representatives and had accessed their
occupied portion despite the installation of an electronic security system specifically
aimed at preventing his access to the WineCo section. The applicants submit that they
have a well-grounded apprehension that van der Spuy’s incursions would continue if an
interim interdict were not granted.
[30] Newton relies on the pepper spray gun incident in order to support the view that
allowing van der Spuy to continue to enter the WineCo portion poses a real threat to the
physical and bodily safety of its employees and licens ees, and that the re is a real
apprehension that he would continue to threaten the m with physical violence16. As for
the balance of convenience, the applicants contend that the granting of interim relief
favours the applicants. It was submitted that i n the event that an interim interdict is
granted but the transfer of section 1 to CPW Properties does not occur, then neither van
der Spuy nor Serina would be prejudiced, as the latter has no commercial reason to be
in the WineCo portion of the cellar. Only de Wet has an office in that section and should
van der Spuy wish to communicate with her , Newton suggests that he does so in
another area of the building or via te xt or call to de Wet . Newton is insistent that a ny
inspection of the cellar area should be conducted by someone other than van der Spuy,
whose conduct as described is in any event unlawful.
[31] Newton also submits that Serina has the right to claim the costs of Win eCo’s
occupation (in the interim ) and this claim can only be enforced after a de batement of
account, thus submitting that WineCo’s occupation of the cellar portion is not prejudicial
to the respondents. It is argued that if interim relief is not granted, and it is later
determined that WineCo was permitted to occupy the current portion of the cellar
complex pending transfer , then WineCo and its employees and contractors would be
severely prejudiced as its work would be interrupted by van der Spuy . It is further
severely prejudiced as its work would be interrupted by van der Spuy . It is further
submitted that WineCo has a right to peaceful and und isturbed possession of the
16 Newton also refers to a dispute which occurred between him and van der Spuy (and their respective
entities) regarding the planting of trees in front of the signage for the Alexander Estate at the entrance to
the Cape Point Vineyards Estate. Newton is of the view that security officers and dogs posted by van der
Spuy (at the signage and trees) posed a threat to WineCo and its employees. This yet another dispute
between van der Spuy and Newton.
current portion of the cellar complex and its employees have the right not to be
threatened by physical violence.
[32] The applicant s allege that they have no other satisfactory remedy available
because despite repeated request s that van der Spuy does not access the WineCo
portion, these requests have fallen upon deaf ears; so too, the installation of an access
control system has failed to keep him out. In addition, the conduct complained of cannot
be remedied nor quantified by damages.
[33] Turning to urgency, the applicants submit that the firearm incident occurred on 8
April 2026 and in the days following the incident, WineCo and it’s legal representatives
were occupied with laying criminal charges at Fish Hoek SAPS and preparing the
various affidavit s forming the subject matter of this application. Furthermore, the
applicants’ junior counsel, who is steeped in the complexity of the parties’ commercial
relationships and disputes, returned to work on 14 April 2026 , after being abroad. On
the same day , he was provided with a high-level brief of the firearm incident. Newton
explains that over the rest of that week, the legal representatives put together a full brief
for coun sel and the applicants and legal representatives considered whether to bring
this application17.
[34] On 20 April the applicants decided to launch the application and the legal
representatives immediately began drafting same. In conclusion, Newton states that the
matter is urgent and that the applicants will not be afforded substantial address if the
matter is heard in the ordinary course which, he is advised, would only be in 2027.
The opposition
17 Founding affidavit, p49
[35] Van der Spuy and Serina dispute the urgency of the application. Firstly, the
contention in the answering affidavit is that the facts do not justify such an approach
because the harm as alleged by the applicants occurred on 8 April 2026. The other
pertinent points raised by the respondents is that the conduct complained of – van der
Spuy’s interference in a photo shoot and accessing the WineCo portion via the access
control entry - all occurred in 2025. The current application was only launched on 24
April 2026, some two weeks after the alleged incident. Van der Spuy contends that such
delay is hardly befitting of appl icants who fear for their lives, as alleged in the
applicants’ affidavits.
[36] In respect of the justification for the delay, in that junior coun sel was abroad and
had only returned on 14 April 2026, the respondents submit that the implication is that it
took several days subsequent to the incident occurring , to consider bringing the
application, consult and draft an application, which was supposedly so urgent a s the
employees of WineCo felt threatened. However, the Court is asked to take into account
that the respondents were only afforded one Court day to oppose the application and
four Court days to file an answering affidavit . The respondents regard the applicants’
conduct as untenable and abusive.
[37] Insofar as the merits are concerned, v an der Spuy opposes the application on
the ground that an interim interdict would amount to awarding exclusive use of the cellar
complex to the applicants. Put another way, the building in which the cellar complex is
housed is owned by Serina, and van der Spuy is its sole director and controlling mind.
Van der Spuy is of the view that the applicants enjoy no prospects of success in the
final determination of either of the prima facie rights in respect of the cellar complex18.
[38] Van der Spuy also makes it clear that Serina is not obligated to transfer the
[38] Van der Spuy also makes it clear that Serina is not obligated to transfer the
relevant portion of the cellar complex to CPW Properties. In addition, the provisions of
the MOU2 amount to an agreement to agree between the parties and an undertaking to
18 As described above
negotiate in good faith with the intention of concluding a transaction document for the
transfer of the portion of the cellar complex. Furthermore, the respondents emphasize
that several agreements still need to be negotiated between the parties and concluded
before transfer of the portion of the cellar complex can occur.
[39] Van der Spuy also denies that WineCo occupies the portion of the cellar
exclusively and submits that its occupation currently is on a temporary basis, pending
negotiation and conclusion of the outstanding documents required to give effect to the
intended transfer of the wine business. WineCo’s occupation occurred in anticipation of
the implementation and conclusion of the transactions referred to above. In the event
that the parties fail to conclude the transaction documents, and the transaction is not
implemented, then the wine business w ould have to be restitut ed and the loss
compensated by Newton.
[40] Van der Spuy also states that the respondents have unfettered access to the
entire complex for more than 30 years , and when the electronic a ccess system was
installed in 2025, his access was unlawfully restricted for the sole purpose of preventing
him from making necessary enquiries as to whether Win eCo was carrying out the
unlawful Alexander initiative, which he regards as a rebranding strategy, and which
legitimacy is the subject of arbitration proceedings. Ser ina, as the owner and insured of
the building, carries the risk of loss or damage in respect of the entire building and
hence inspection of the cellar complex is necessary.
[41] The respondents are of the view that the applicants cannot seriously contend
that any of the rights advanced by Newton 19 relate to CPW Properties, which has failed
to assert any rights worthy of protection for purposes of the interim inter dict. In respect
of these rights, all alleged to be enjoyed by the employees and license es of WineCo,
of these rights, all alleged to be enjoyed by the employees and license es of WineCo,
van der Spuy is of the view that a n interdict cannot be sought by a company on behalf
19 This is a reference to the contractual rights of WineCo to exclusive and undisturbed possession of the
portion of the cellar complex and the right of its employees and licensees to bodily integrity, and not to be
threatened with violence
of the employees and licensees, where these individuals are not identified. According to
him, the interdict is a violation of his personal freedom and the application should be
dismissed. Alternatively, it is submitted that the application should be struck from the roll
with costs as the urgency is self-created.
[42] In respect of the incident of 8 April, van der Spuy denies that he was in
possession of a firearm. The device which he had in his pos session dispensed pepper
spray, and he denies that there was any threat of physical violence towards any
WineCo employees. The device was intended for de Wet to protect her against any
physical removal from the office which Vorster had previously threatened to carry out.
[43] Van der Spuy also admits that he told Vorster that de Wet was not going to be
evicted and that she would be entitled to defend herself against threats. He admits
handing over the pepper spray gun to de Wet but denies pointing and/or waving it at
Vorster or anyone else. He emphasises that de Wet is employed as a bookkeeper and
occupies her office fin the cellar complex f or several years. The area also comprises
toilets, a kitchen and other common use areas, and the restaurant also collects wine
from the cellar.
[44] Thus, p reventing him a ccess to t hese areas is seriously prejudicial to the
restaurant business and will restrict van der Spuy’s ability to carry on the business. It is
also so that the cellar complex is in any event not exclusively used by Win eCo as
various staff members of the restaurant are able to access it.
[45] Furthermore, the building also comprises other tenants which rent space from
Serina and van der Spuy would have to ensure that various portions of the building are
accessible to these tenants. Van der Spuy’s response to the allegations that he makes
repeated incursions into the area occupied by Win eCo is that the applicants do not
allege any business interruption which could possibly warrant the granting of an interim
allege any business interruption which could possibly warrant the granting of an interim
restraining order.
[46] De Wet deposed to an affidavit and confirms that she occupies an office space
since February 2023 and has free and unfe ttered access to the cellar complex,
including bathrooms, kitchen and common areas. She had become fearful that Vorster
would use force to evict her from the office and expressed this fear to van der Spuy.
She also confirms the 8 April incident and generally corroborates van der Spuy’s
version as to the occurrence.
[47] De Wet denies that van der Spuy pointed the pepper spray gun at Vorster. He
held the device pointing towards the ground . She also explains that at no stage after
van der Spuy’s departu re, had Vorster indicated that van der Spuy had pointed a
firearm at him or that he was assaulted. She denies that van der Spuy intimidated,
threatened or insulted Vorster and/or WineCo employees.
The applicants’ reply
[48] In reply , the applicants indicate that they are entitled to a narrowly tailored
interdict which excludes van der Spuy from accessing the area which they occupy in the
cellar, pending the final determination of WineCo’s right of occupation. In this regard,
they deny that the respondent s are entitled to resist the interdict as van der Spuy
entered the premises, brandishing a weapon and encouraging de Wet to use the
weapon on Win eCo employees. S econdly, the argument that the overarching
transactions and documents have not been concluded does not assist the responden ts
as WineCo has a right of occupation. Thirdly, the applicants deny that van der Spuy has
enjoyed unfettered access to the wine business portions/section of the cellar complex
since WineCo took occupation.
[49] Newton states that u ntil recently, de Wet was an employee of both Win eCo and
CPV, but her employment ceased which resulted in WineCo demanding that she
vacates the office. As for the 8 April incident, van der Spuy had encouraged her to shoot
Vorster if attempts were made to remove her from the office. As for van der Spuy’s
averment that other employees utilize toilets, the kitchen and other areas of the wine
section, Newton’s response is that their access occurs with permission of Win eCo and
that this conduct is not inconsistent with WineCo’s right of occupation.
[50] In respect of the pepper spray gun, Newton relies on a Google search to explain
the nature and characteristics of the device which van der Spuy possessed20. In view of
this information, Newton emphasises that the pepper spray gun is in fact a weapon that
can disable a threat, is incredibly powerful and while it is non -lethal, it is still capable of
serious harm in close quarters such as an office space. He thus concludes that by
encouraging de Wet to use the weapon on Win eCo employees, which is not denied, he
incited her to commit assault.
[51] Newton states that the building in respective of section 2 can be access ed from
outside through entrances that open into the common area . He denies that it would be
necessary for van der Spuy to access this area for Serina to exercise any rights it has
as owner. Newton is also of the view that Ser ina can /should nominate any
representative other than van der Spuy from performing an inspection of the wine cellar.
[52] Newton takes issue with the respondents’ version that the applicants are guilty of
self-created urgency and that an urgent hearing would be inappropriate. The applicants
disagree with van der Spuy’s reference to Court days in respect of the computation of
time related to the filing of affidavits, submitting that such reference is misleading in light
of the various public holidays which occurred after service of the application. The
applicants indicate that the application was served on Friday 24 April and van der Spuy
applicants indicate that the application was served on Friday 24 April and van der Spuy
was required to file a notice of opposition by Tuesday 28 April, which was four calendar
days later. The answering affidavit was required by 6 May 2026, which was twelve
calendar days after service of the application . The argument is that this time -period is
20 RA3
reasonable in the circumstances 21. Newton emphasises that the respondents do not
allege that they were prejudiced by the timelines indicated in the Notice of Motion.
[53] In Vorster’s affidavit supporting the replying affidavit, he denies the De Wet
account of the pepper spray gun incident and states that it is inconsistent with his
version. Furthermore, and with reference to correspondence and WhatsApp messages
to de Wet, he denies that he ever threatened her or forced the issue of the eviction, and
in all instances, he was respectful, gave her the opportunity to move out of the property
and offered WineCo’s assistance with her furniture and belongings.
The Notice of Motion
[54] The applicants seek the following relief on an urgent basis:
“1. Condonation is granted for the applicants’ non -compliance with the
prescribed forms, time periods, and service requirements and leave is
granted for the application to be heard as one of urgency in terms of
Uniform Rule 6(12).
2. The first respondent (“Mr van der Spuy”) is interdicted from entering-
2.1 section 1 of the proposed sectional -title scheme at Erf 7[...]
Chapman’s Peak, Cape Town as depicted in the registered
sectional plan SG No. D535/2022 (the “cellar complex”), a copy of
which is annexed marked “A”, and
2.2 the exclusive -use areas associated with section 1 of the cellar
complex, namely CP1, CY1, and P1, as depicted in sectional plan
SG No D535/2022.
21 The applicants also indicate that an unsigned version of the answering affidavit was served on 10 May
2026, sixteen days after service of the application
without the prior written permission of the first applicant (“WineCo)”.
3. Mr van der Spuy is interdicted from threatening any employee or
contractor of WineCo with violence or physical harm.
4. The interdicts in prayers 2 (inclusive) and 3 above shall operate as interim
interdicts pending the earlier of –
4.1 the transfer of section 1 of the cellar complex to the second
applicant (“CPW Properties”); or
4.2 the final determination by a court or arbitrator (to the extent that
arbitration has been agreed to by the parties to this application) of
the existence and extent of WineCo’s right to occupy the cellar
complex and to exclude Mr van der Spuy therefrom pending the
transfer of section 1 of the cellar complex to CPW Properties.
5. WineCo shall launch proceedings for the determination referred to in
prayer 4.2 above within twenty days of the handing down of judgment in
this application, failing which the interim interdicts in prayers 2 (inclusive)
and 3 above shall lapse.
6. Mr van der Spuy shall pay the costs of this application, including the costs
of two counsel on Scale C.”
Discussion: urgency
[55] With these facts and circumstances set out above, I turn to the issue of urgency .
It is common cause that the pepper spray incident occurred on 8 April 2026 and that on
24 April 2026, the application was delivered and uploaded onto the Court online system.
To the extent that submissions were made regarding the length of time that lapsed from
the date of the incident to the date of the application, the computation of time and
issues related to urgency, I must emphasise that rule 1 of the Uniform Rules of Court
(the Rules) stipulates that “court day” refers to a day that is not a public holiday,
Saturday or Sunday and only Court days are included in the computation of any time
expressed in days prescribed by the rules or fixed by any Court order 22. The Rules,
certainly for the purposes of computation of time related to applications in terms of rule
6(12), do not refer to ordinary days.
[56] From the above definition, dates and time periods as per the Notice of Motion ,
and on my computation of the dies, I conclude that twelve days23 had lapsed from the
date of the pepper spray incident (8 April) to the date of launching the application (24
April). From the evidence tendered in this matter, junior counsel was briefed on 14 April
2026, meaning that by then, four Court days had passed since the occurrence of the
incident. According to the Notice of Motion, the respondents were afforded time until 28
April to deliver a notice of opposition to the application.
[57] In this regard, it must be remembered that 27 April was a public holiday and is
therefore not included in the computation of time awarded to the respondents to deliver
their notice of opposition. Th us, 28 April was t he last day to deliver a notice of
opposition and is included in the computation of time . The result , therefore, is that the
respondents were afforded one day from date of delivery of the application to deliver
their notice of opposition . In this regard, the respondents ’ submissions are thus
accepted.
[58] The respondents’ answering affidavit was due to be deliver ed by 6 May 2026 ,
thus allowing the m five days (to deliver their answering affidavit).24 However, I note
from the documents filed of record that the answering affidavit was delivered on 13 May
from the documents filed of record that the answering affidavit was delivered on 13 May
2026, five days after its due date in terms of the Notice of Motion . There is no
22 Rule 1 Definitions
23 Court days – see Rule 1
24 1 May 2026 was a public holiday and is thus excluded from the computation of time periods, as per
Rule 1
explanation for this delay, nor a condonation application or an order which regulates the
extension of time to deliver the answering affidavit. This issue was also not addressed
by the parties during the hearing on the urgency of the application. Furthermore, it was
apparent from counsels’ submissions that they did not agree on the computation of time
when considering the question of urgency, hence the necessity of having to embark
upon the above exercise involving the calculation of dies.
[59] Applications brought as a matter of urgency are governed by rule 6(12). Rule
6(12)(a) and (b)25 read as follows:
(12)
(a) In urgent applications, the court or a judge may dispense with the
forms and service provided for in these Rules and may dispose of
such matter at such time and place and in such manner and in
accordance with such procedure (which shall as far as practicable
be in terms of these Rules) as it deems fit.
(b) In every affidavit filed in support of any application under paragraph
(a) of this subrule, the applicant must set forth explicitly the
circumstances which is averred render the matter urgent and the
reasons why the applicant claims that applicant could not be
afforded substantial redress at a hearing in due course.
[60] A Court faced with what the applicant consider s to be an urgent application is,
where it is alleged that there was a delay in bringing the application or where the issue
of a delay is raised , required to consider the following aspects in order to determine
whether the application may be entertained as an urgent application:
[60.1] the circumstances and explanation for any delay in bringing the application;
25 Sub-rule (c) is not set out above
[60.2] whether such explanation is cogent;
[60.3] the circumstances which the applicant avers renders the matter urgent; and
[60.4] the reasons why the applicant states/claims that it cannot be afforded substantial
redress at a hearing in due course.
The onus in respect of fulfilling the requirements of rule 6(12) rests squarely upon an
applicant who approaches the Fast Lane Court and/or Urgent Duty Judge for relief.
[61] Turning to this matter, while counsel for the applicants submitted in reply that the
respondents had not indicated any prejudice in respect of the shortened time periods to
respond to the founding affidavit , and had in fact delivered answering and confirmatory
affidavits, my view is that any failure by the respondents in this regard, does not
absolve the applicants from overcoming the peremptory requirements of rule 6(12)(b).
To be clear, the applicants elected to approach the Fast Lane Court and are therefore
bound to fully comply with the provisions of rule 6(12).
[62] The respondents allege and have submitted that the applicants delayed the
bringing of this application. The question of delay in a rule 6(12) application and the
requirement of showing that an applicant cannot obtain substantial redress at a hearing
in due course was considered in some detail in East Rock Trading 7 (Pty) Ltd and
Another v Eagle Valley Granite (Pty) Ltd 26, an unreported judgment which was cited
with approval recently by Slingers J in Venter and Another v Els and Another27.
[63] In East Rock Trading, Notshe AJ held as follows:
26 [2011] ZAGPJHC 196
27 2024 (4) SA 305 (WCC) par [19]
“[6] The import thereof is that the procedure set out in rule 6(12) is not there
for taking. An applicant has to set forth explicitly the circumstances which
he avers render the matter urgent. More importantly, the Applicant must
state the reasons why he claims that he cannot be afforded substantial
redress at a hearing in due course. The question of whether a matter is
sufficiently urgent to be enrolled and heard as an urgent application is
underpinned by the issue of absence of substantial redress in an
application in due course. The rules allow the court to come to the
assistance of a litigant because if the latter were to wait for the normal
course laid down by the rules it will not obtain substantial redress.
[7] It is important to note that the rules require absence of substantial
redress. This is not equivalent to the irreparable harm that is required
before the granting of an interim relief. It is something less. He may still
obtain redress in an application in due course but it may not be
substantial. Whether an applicant will not be able obtain substantial
redress in an application in due course will be determined by the facts of
each case. An applicant must make out his cases in that regard.
[8] In my view the delay in instituting proceedings is not, on its own a ground
for refusing to regard the matter as urgent. A court is obliged to consider
the circumstances of the case and the explanation given. The important
issue is whether, despite the delay, the applicant can or cannot be
afforded substantial redress at a hearing in due course. A delay might be
an indication that the matter is not as urgent as the applicant would want
the Court to believe. On the other hand a delay may have been caused by
the fact that the Applicant was attempting to settle the matter or collect
more facts with regard thereto.28
[9] It means that if there is some delay in instituting the proceedings an
Applicant has to explain the reasons for the delay and why despite the
Applicant has to explain the reasons for the delay and why despite the
28 See: Nelson Mandela Metropolitan Municipality v Greyvenouw 2004 (2) SA 81 (SE) at 94C–D;
Stock v Minister of Housing 2007 (2) SA 9 (C) 12I–13A.
delay he claims that he cannot be afforded substantial redress at a
hearing in due course. I must also mention that the fact the Applicant
wants to have the matter resolved urgently does not render the matter
urgent. The correct and the crucial test is whether, if the matter were to
follow its normal course as laid down by the rules, an Applicant will be
afforded substantial redress. If he cannot be afforded substantial redress
at a hearing in due course then the matter qualifies to be enrolled and
heard as an urgent application. If however despite the anxiety of an
Applicant he can be afforded a substantial redress in an application in due
course the application does not qualify to be enrolled and heard as an
urgent application.”29
(footnotes included)
[64] Bearing the above in mind and the explanation for the time period from the date
of the incident to the launching of the application on 24 April, my view is that the
applicants delayed bringing the application and /or did not act with haste. To clarify, it
took them twelve Court days from the date of the incident to approach the Fast Lane
Court. In this regard, counsel for the respondents was correct when he submitted that
approximately two weeks had lapsed since the incident to the date of delivery of the
application for an interim interdict , and where the applicants allege that employees of
WineCo were threatened with assault by the “firearm” brandishing van der Spuy.
[65] As clarified in East Rock Trading 30, the delay in applying in terms of rule 6(12)
is not the end of the enquiry as to whether the Court should exercise its discretion in
terms of rule 6(12)(a) and determine that the matter be heard as an urgent application. I
am required to consider the explanation for the delay and whether it is cogent 31. On the
applicants’ version, WineCo and their attorneys were occupied with lodging the criminal
charge against van der Spuy and preparing the affidavits for this application in the days
following the incident.
following the incident.
29 My emphasis
30 Supra
31 Venter supra, par [19]
[66] Objectively considered, there is no reasonable explanation why the lodging of
criminal charges related to the pepper spray gun incident and the preparation of
affidavits would have to occupy Vorster, Newton and/or WineCo for several days after
the incident. However, not to be too critical, I do point out that large parts of the
founding affidavit deal with the parties’ commercial relationship, the disputes related
thereto, the litigation, the historical conduct of van der Spuy and then, the 8 April
incident.
[67] Without drawing any conclusions regarding any alleged criminal conduct/offence,
it seems that this was not a drawn -out incident. It was witnessed by Vorster and
Swanepoel, not Newton, and t he applicants are of the view that van der Spuy was in
possession of a firearm and threatened the employees by waving the device in the air
and firing a projectile toward the ground.
[68] This explanation, that in the days following the incident the attorneys were
preparing the affidavits in support of the application , is reasonable. H owever, the
application plus supporting affidavits and annexures thereto comprise 235 pages,
relatively voluminous for an interdict application relating to a once-off pepper spray gun
incident. To be fair to the applicants, and bearing in mind the approach adopted in East
Rock Trading to the delay issue, this explanation must be considered with the rest of
Newton’s explanation regarding the time it took the applicants to launch the application.
[69] On 14 April, once their junior counsel had returned from abroad and was back in
chambers, he was provided with the brief of the “firearm incident”. It was submitted that
he was steeped in the complexity of the commercial disputes and agreements between
Newton and van der Spuy and their respective entities. This being the case, it then took
the rest of the week of 14 April for the applicants and their legal representatives to
the rest of the week of 14 April for the applicants and their legal representatives to
consider whether to bring the application. Thereafter, and only on 20 April, they decided
to launch this application. A further f our days then passed before the application was
eventually delivered on 24 April.
[70] Having considered the entire explanation for the delay in bringing the application,
I am of the view that the explanation for such delay is not cogent. To clarify, a total of
twelve days lapsed before the application was eventually launched. With due respect to
the legal representatives, and to the extent that it is made out that the matter was
extremely urgent, thus warranting one day’s notice to deliver a notice of opposition, I
am asked to simply accept that the time period after the incident (taken up by laying a
criminal charge, waiting for counsel to return from abroad, preparing affidavits and then,
eventually, deciding to launch the application ) was brief and reasonable . My view ,
however, is that this explanation for delay is unconvincing . To add, this was not a
situation where, for example, the time in-between the incident and 24 April was partially
spent on attempting to resolve the dispute between the parties.
[71] As indicated in East Rock Trading 32, the delay in launching the application is
but a fac tor in whether to refuse to consider the application as urgent. The crucial
question, notwithstanding a finding that the explanation for delay is unconvincing , is
whether, despite the delay, the applicants can or cannot be afforded substantial redress
at a hearing in due course. To answer this question, it is necessary to emphasise that in
terms of rule 6(12(b) the applicants are required to provide reasons why they claim they
cannot be a fforded substantial redress in the ordinary course. As seen from the
authorities referred to in this judgment, the substantial redress requirement is the
determining factor in respect of the urgency issue.
[72] Paragraphs 8 to 15 and 99 to 101 of the founding affidavit address the reasons
for the interdict and why an urgent hearing is justified. The requirements for an interim
interdict aside, the only paragraph which addresses the “substantial redress” aspect is
interdict aside, the only paragraph which addresses the “substantial redress” aspect is
paragraph 101, the last paragraph of the founding affidavit, where Newton states as
follows:
32 Supra
101. In the circumstances, this matter is urgent, commensurate with the
timetable set out in the notice of motion and that the applicants will not be
afforded substantial redress in the event that this matter is heard in the
ordinary course (which I am advised will only be in 2027).
[73] Having regard to the peremptory requirement and the wording of rule 6(12)(b),
read with the authorities referred to above, the conclusion I reach is that the appl icants
have failed to set forth the reasons why they claim they cannot be afforded substantial
redress at a hearing in due course. The content of paragraph 101 of the founding
affidavit is nowhere near fulfilling this peremptory requirement. All it states is that the
applicants will not be afforded substantial redress if the application is heard in the
ordinary course, which will be in 2027.
[74] To be clear, c rucially missing from paragraph 101, and the rest of the founding
affidavit, are the reasons why the applicants say or claim that they would not be
afforded substantial redress at a hearing in due course. The preceding paragraphs 33 of
the founding affidavit, under the heading “An urgent hearing is justified ” in no way set
out the reasons why the applicants cannot be afforded substantial redress at a hearing
in due course. I must also add that the requirement that an applicant has to provide
reasons why they claim that they c annot not be afforded substantial redress at a
hearing in due course is not the same as the factors relevant to an interdict applications
regarding imminent or irreparable harm if interim relief is not granted or that no other
satisfactory remedy is available34.
[75] It was required of the applicants to have expressly provided their reasons, in the
founding affidavit, as to why they claim that waiting for the application to be heard at a
hearing on the semi-urgent or opposed roll at a later stage, in the normal course of the
hearing on the semi-urgent or opposed roll at a later stage, in the normal course of the
rules, would not /could not afford them substantial redress or remedy against the
respondents. The averments under the “Balance of convenience ” heading, which
33 Paragraphs 99 – 100.4
34 East Rock Trading supra, par [7]
addresses the possibility of prejudice if interim relief is not granted and it is later
determined that WineCo was permitted to occupy the portion of the cellar complex
pending transfer to CPW Properties, does not assist the applicants in their failure to
fully comply with rule 6(12)(b) insofar as the substantial redress requirement is
concerned. Stated differently, the “balance of convenience” factors relate to the
substantive relief sought which is an interim interdict, and not to the reasons why
substantial redress cannot be obtained at a hearing in due course.
[76] Merely as a comment in passing, the substantial redress that the applicants
seek in this application is an interim interdict which would preclude van der Spuy from
entering the cellar portion of the comple x and exclusive use areas of the building . He
would require WineCo’s prior written permission to do so , pending the transfer of
section 1 of the cellar complex to CPW Properties or the determination of a Court or
arbitrator of WineCo’s occupational right. He would thus be interdicted from entering the
area and from threatening WineCo’s employees with violence35.
[77] However, it is not for the Court to come to an applicant’s rescue and read in a
fulfilment of the substantial redress requirement as stipulated by rule 6(12)(b). It makes
sense that where applicants approach the Fast Lane Court/Urgent Duty Judge on
truncated timelines and seek condonation for such non -compliance with the ordinary
rules in terms of rule 6(12)(a), that they are required to clearly and specifically set out in
the founding affidavit , the reasons why they claim they cannot be afforded substantial
redress in the ordinary course of the rules and procedure. In this matter, the applicants
have failed to do so.
[78] In view of the above findings, I accordingly conclude that the applicants have
failed to fully comply with the requirements of rule 6(12)(b) and have thus also failed to
failed to fully comply with the requirements of rule 6(12)(b) and have thus also failed to
make out a case for urgency. Accordingly, the application will be struck from the roll.
The merits of the dispute are thus not determined.
35 See par 2 – 4 of the Notice of Motion (para 5 and 6 are excluded as they refer to WineCo launching an
action or proceeding to arbitration on the occupational right issue, and costs) .
[79] As for costs, counsel for the respondents submitted that the application is an
abuse. My view is that the failure to fully comply with the peremptory requirements of
rule 6(12)(b) and the delay in bringing the application, do not render the application an
abuse of process. Furthermore, I would also not go so far as to find that the application
was malicious or based upon ulterior motives. The detail and history of the matter
indicate that these are extremely litigious parties , that there are numerous disputes
which are largely unresolved and that this will not be the last dispute between them in
this Court. In the circumstances, a costs order in the normal course will follow on scale
C.
Order
[80] In the result, I grant the following order:
The application is struck from the roll with costs, including the costs of two counsel
where so employed (scale C).
__________________________
M PANGARKER
JUDGE OF THE HIGH COURT
Appearances:
For Applicants: S Miller SC
P Olivier
Instructed by: Bernadt Vukic Potash & Getz
Cape Town
Per: G T Ford
For Respondents: F Sievers SC
D Robertson
Instructed by: STBB
Cape Town
Per: M Bey