IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN
Case No: 2026-125578
In the matter between:
ROSS BERRIES (PTY) LTD (in business rescue) First Applicant
TIERKLOOF BESSIES (PTY) LTD (in business rescue) Second Applicant
STEPHANUS JOHANNES NEL N.O. Third Applicant
and
CHRIS LE CORDEUR ROSSOUW SNR First Respondent
CHRIS LE CORDEUR ROSSOUW JNR Second Respondent
THE AFFECTED PERSONS IN THE BUSINESS
RESCUE OF THE FIRST APPLICANT Third Respondent
THE AFFECTED PERSONS IN THE BUSINESS
RESCUE OF THE SECOND APPLICANT Fourth Respondent
STANDARD BANK OF SOUTH AFRICA LTD Fifth Respondent
THE COMPANIES AND INTELLECTUAL
PROPERTIES COMMISSION Sixth Respondent
Reportable / Not reportable
Coram: Anderssen AJ
Heard: 9 June 2026
Delivered: Electronically on 10 June 2026
Summary: Urgency – non-compliance Rules 6(1) and 6(12) – struck from the roll
– application constitutes an abuse of process egregious enough to warrant
punitive cost order
ORDER
1. The application is struck from the roll as an abuse of process.
2. The first and second respondents’ costs shall be paid by the applicants,
jointly and severally, the one paying the other being absolved on an
attorney and client basis.
JUDGMENT
Anderssen AJ:
[1] The application came before me in fast lane on an extremely truncated
timetable. The applicants seek an urgent interdict interdicting the first and
second respondents from interfering with, frustrating or jeopardizing the
business rescue proceedings of the first and second applicant (the third
applicant having been appointed as the business rescue practitioner ). The
complaint is that the first and second respondents repeatedly failed to
comply with instructions, keep reopening settled issues, condition thei r
cooperation on further demands, involve the employees of the first and
second applicants (as well as third parties) in disputes and are causing
implementation delays and uncertainty in the business rescue process.
The allegation is made that the pattern of conduct commenced in and
around March 2026 and continues to date.
[2] On 13 May 2026 the attorneys for the applicants wrote an 8 -page letter in
which, in the penultimate paragraph, the first and second respondents
were warned that “ should you persist with your conduct as detailed in
previous correspondence, the Practitioner shall be forced to pursue legal
remedies to protect the interest of the creditors and to prevent further
prejudice to the business rescues and shall seek a punitive costs order
against you.” The founding affidavit is silent as to any conduct by the fir st
and second respondents, after 13 May 2026, that may have taken place
and would justify the launching of the application . Despite this the
applicants saw fit:
[2.1] to launch an urgent application consisting of a n 8-page notice of
motion, and a founding affidavit of 39 pages (non -compliant with
WCHC practice directives in that it is typed in 1½ spacing) with 34
annexures totalling 215 pages.
[2.2] to serve the application via email on the first and second
respondents at 15h11 on Friday 2026 and to afford them, in the
timetable set out in the notice of motion, until 16h30 on Monday 1
June 2026 to file a notice to oppose and a further 24 hours – until
16h30 on the following day – to file an answering affidavit.
[3] The first and second respondents responded with a 32 -page answering
affidavit and 14 annexures totalling 54 pages . The affidavit was clearly
signed after hours on 4 June 2026 before a member of SAPS.
Confirmatory and supporting affidavits totalling 25 pages were also filed on
or after 4 June 2026. The replying affidavit (47 pages with 24 annexures
totalling 113 pages) was then served on Sunday 7 June 2026 at 21h40 via
email. When I came out of court on Monday (I was sitting in the slow lane)
the file awaited me in my in -tray. I was also provided with a separate file
with a rule 35(12) notice and documents provided in reply exceeding 200
pages. The following morning (the day of the hearing) , at 08h48 , a
supplementary answering affidavit of 7 pages and 6 annexures (totalling
more than 250 pages) arrived and I was informed in court that there is a
brief supplementary replying affidavit also.
[4] A perusal of the founding affidavit demonstrated that the applicants did not
comply with the provision of Rule 6(1) which requires that every application
shall be brought on notice of motion supported by an affidavit as to the
facts upon which the applicant relies for relief . The facts must be set out
simply, clearly and in chronological order, without argumentative matter .1
The applicants did not identify in the founding affidavits what portions of
the annexures they are relying on and did not indicate what case is sought
to be made out on the strength thereof. 2 It should not be expected of the
court or the respondent to have to read the annexures to establish what
the relevance thereof may be or even to find something as simple as the
date upon which the document was created or an action was taken
because the information is no provided in the founding affidavit. It is not
expected of the court or the respondents to trawl through lengthy
1 Reynolds N.O. v Mecklenberg (Pty) Ltd 1996 (1) SA 75 (W) . As Stegmann J pointed out
applicants must explicitly plead primary facts rather than secondary facts (conclusions), as the
court and respondent are entitled to know exactly what case the respondents are required to
meet.
meet.
2 Swissborough Diamond Mines (Pty) Ltd v Government of the Republic of South Africa
1999 (2) SA 279 (T).
annexures to the affidavit and to speculate on the relevance of its content.3
[5] Furthermore, practitioners, when drafting applications, should ensure that
only relevant information is placed before the court . Irrelevant facts that
consist of background details, superfluous narrative, or factors that do not
contribute to applying the legal principle at stake clutter affidavits, and
increase the length of the papers and costs for litigants. The same is true
of annexures. When an urgent application is launched, litigants must
comply with rule 6(12), which regulates the procedure for urgent
applications. In these applications, applicant s are , in effect, ask ing the
court to prioritise their matter over others ’ matters. The rule permits
applicants to do so and to set their own timeframes in accordance with the
degree of urgency of the matter but strict adherence with the rule 4 is
required:
[5.1] An applicant must , in the founding affidavit, explicitly set forth the
circumstances which it is averred render the matter urgent and,
additionally, an applicant must demonstrate that they will not
obtain substantial redress in the ordinary course . Mere lip service
to the requirements of Rule 6(12)(b) will not do and an applicant
must make out a case in the founding affidavit to justify the
particular extent of the departure from the norm.
[5.2] Once an applicant is of the view that a matter is sufficiently urgent
to justify a departure from the rules and an abridgment of the times
3 Minister of Land Affairs and Agriculture and Others v D & F Wevell Trust and Others
(171/06) [2007] ZASCA 153 (28 November 2007); [2007] SCA 153 (RSA); 2008 (2) SA 184
(SCA).
4 Luna Meubel Vervaardigers (Edms) Bpk v Makin and Another (t/a Makin's Furniture
Manufacturers) 1977 (4) SA 135 (W).
prescribed by the rules, the applicant must properly consider
degrees of urgency. Practitioners should carefully analyse the
facts of each case to determine, for the purposes of setting the
case down for hearing, whether a greater or lesser degree of
relaxation of the rules and of the ordinary practice of the Court is
required. The degree of relaxation should not be greater than the
exigency of the case demands. It must be commensurate
therewith.
[6] On the applicant’s ipse dixit the behaviour complained about commenced
in March 2026 but a perusal of the founding affidavit demonstrate s that
some of the conduct complained about commenced in late November
2025. The annual financial statements were signed (without authorisation
apparently) in late January and early February 2026. Many of the letters
were written in March, and April with correspondence continuing to 12 May
2026. Most concerning is that n o document written by the first or second
respondents was produced and no mention w as made of any conduct –
after the formal letter from the applicants’ attorney was transmitted – on or
after 13 May 2026. Despite this , the application was launched. The lack of
any action by the first and second respondents after 13 May 2026 should
have prevented the application. And even if there had been some action –
buried in the myriad of annexures and not mentioned in the founding
affidavit – the timetable set in this matter constituted an abuse so
egregious that it raises the spectrum of litigation in terrorem.
[7] It is abundantly clear that this application constitutes an abuse of process
and that the application must be struck from the roll and the applicants
must be mulcted in a punitive cost order . The applicant has neither
complied with Rule 6(1) nor with Rule 6(12). Guiding principles set out in
leading cases have simply been ignored. Mr Siyo made a valiant effort to
persuade me otherwise but there is no reason why the first and second
respondents should be out-of-pocket.
[8] The order is recorded above.
__________________________
ANDERSSEN J S
Acting Judge of the High Court
Appearances:
For the applicant: Adv Lunga Siyo
Instructed by: Murison & Associates Inc
For the respondent: Mr Willem van Heerden of Piet van Dyk Attorneys Inc