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[2026] ZAGPPHC 679
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Kyalami Shisanyama (Pty) Ltd and Others v Nchaupa (2025-209681) [2026] ZAGPPHC 679 (8 June 2026)
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
CASE
NO: 2025-209681
(1)
REPORTABLE:
YES
/NO
(2)
OF INTEREST TO OTHER JUDGES:
YES
/NO
(3)
REVISED:
YES
/NO
DATE 08/06/2026
SIGNATURE
In
the matter between:
KYALAMI
SHISANYAMA (PTY) LTD
First Applicant
TSHEPO
EVANS SEFOMOLO
Second Applicant
THOMAS
CHAUKE
Third Applicant
GRANITE
NETWORK (PTY) LTD
Fourth
Applicant
and
NTSHAUPA
MOHALE NCHAUPA
Respondent
JUDGMENT
MBONGWE,
J:
INTRODUCTION
[1]
This is an application for leave to appeal brought by the respondents
in the main application
against the judgment and orders of this court
delivered on 20 November 2025. The respondents contend that the Court
erred in several
respects, most notably in granting relief not sought
in the notice of motion. The applicant disputes the premise of the
application
and further submitting that the respondents have failed
to demonstrate reasonable prospects of success on the findings and
orders
in the impugned judgment as required by
section 17(1)(a)
of
the
Superior Courts Act 10 of 2013
.
Background
[2]
The applicant (Respondent in this application) sought declaratory and
interdictory relief
to prevent the transfer of his 40% shareholding
in the first respondent (First Applicant herein). He alleged that his
mandate to
sell the shares had been lawfully withdrawn at a
shareholders meeting on 2 October 2025, and that statutory
requirements for transfer
under the
Companies Act 71 of 2008
had not
been complied with.
[3]
The respondents opposed the application, contending that a binding
Sale of Shares Agreement
had been concluded in July 2025, partly
performed on in that the applicant had accepted part payment for his
shares.
[4]
The Court granted final relief,
including:
a) An
interdict restraining registration of transfer of the applicant’s
shares;
b) A
declarator that the applicant remains the lawful owner of 40% shares;
c) A
declaration that the mandate was lawfully withdrawn; and
d) A
mandatory order directing restoration of the applicant’s name
to the CIPC registry.
GROUNDS
OF APPEAL
[5]
The respondents advanced seven grounds of appeal. The most
significant is the contention
that the Court granted relief not
sought in the notice of motion / pleadings, thereby offending the
audi alteram
partem
principle. This contention is
addressed hereunder.
THE
GOVERNING PRINCIPLES
[6]
It is trite that pleadings define the issues between the parties. In
Molusi v
Voges N.O.
[1]
the Constitutional Court held that:
“
in application
proceedings the notice of motion and affidavits define the issues
between the parties… it is a fundamental
rule of fair civil
proceedings that parties should be apprised of the case which they
are required to meet
.”
[7]
The Supreme Court of Appeal in
Fischer
v Ramahlele
[2]
reaffirmed that courts may not raise new issues not traversed in
pleadings or affidavits, however interesting they may seem.
[8]
In
Municipal
Workers Retirement Fund v Kopanong Local Municipality
[3]
, the Court held that final orders not prayed for in the notice of
motion are incompetent absent amendment.
[9]
However, the jurisprudence also recognises that courts are empowered
to grant effective
relief where rights are established. In
De
Beer NO v North-Central Local Council
[4]
,
the Constitutional Court emphasised that fairness requires
opportunity for both parties to be heard, but courts must interpret
pleadings purposively to ensure proceedings are fair and remedies
effective.
[10]
Similarly, in
Slabbert
v Slabbert,
[5]
the Court held that once the issues are properly before the court, it
may craft orders necessary to resolve them, provided they
are
grounded in the pleaded case.
THE
COURT’S DISCRETION TO GRANT THE MOLDED / ALTERNATIVE ORDER
[11]
The Respondents’ objection is anchored on the technical ground
that the exact wording of the
relief does not explicitly encapsulate
in the Applicant's primary prayers within the Notice of Motion. This
formalistic approach
is legally flawed and misconstrues the purpose
of the general prayer for further and/or alternative relief,
inter
alia
.
The court has a discretion to grant a moulded relief to protect the
substantive rights of litigants where the strict, literal
enforcement
of the main prayers might fail to provide a practical remedy. In
Johannesburg
City Council v Bruma 32 (Pty) Ltd
[6]
,
the Court held that the prayer for alternative relief allows the
court to fashion a moulded remedy, stating that:
"…it may
be invoked to justify the granting of an order other than that
specifically requested, where such other order
is indicated by the
premises and is not altogether of a different nature from that which
was asked for."
[12]
The courts have consistently held that the standard for granting an
alternative or moulded order relies
in the fulfilment of three clear
prerequisites:
a)
Factual Foundation: The facts underpinning the moulded order must be
clearly indicated and fully traversed
in the affidavits on record;
b) No
Alteration of Cause of Action: The order must not introduce an
entirely new legal cause of action that alters
the nature of the
dispute; and
c)
Absence of Prejudice: The granting of the order must not cause unfair
prejudice or catch the Respondent by
surprise, violating the
audi
alteram partem
rule.
[13]
All of the above three prerequisites are fully
satisfied in the present matter:
a) The
underlying facts justifying the practical mechanism of the proposed
order are fully detailed in the Founding
Affidavit;
b) The
purportedly impugned orders do not alter the cause of action. They
stems directly from the same contractual
right / possessory right /
statutory obligation] that formed the core of the main application.
The orders merely provide a practical
vehicle to enforce the
applicant’s exact rights.
c)
There is absence of procedural prejudice to the Respondents who had a
full and fair opportunity in their Answering
Affidavits to oppose the
material facts that form the bedrock of this moulded relief. The
issues were completely ventilated before
this Court.
[14]
To deny the Applicant moulded relief on the ground raised by the
respondents would elevate form over substance.
As cautioned in
Combustion
Technology (Pty) Ltd v Technoburn (Pty) Ltd
[7]
,
the court should not allow procedural technicalities to obstruct the
resolution of the true, ventilated dispute between the parties.
ANALYSIS
[15]
The respondents argue that the interdict against “registration”
was a different species of relief,
that the declarator on mandate
withdrawal was not sought, and that the restoration order was wholly
new.
[16]
The applicant counters that these orders were incidental to the
pleaded claim of ownership and
interdictory relief. Without them, the
declaratory relief would have been ineffectual.
[17]
The founding affidavit made clear that the applicant disputed the
validity of the mandate and sought recognition
of his ownership. The
annexures included correspondence recording his revocation of
mandate. The respondents were thus aware that
the issue of mandate
withdrawal was central.
[18]
The refinement of the interdict to restrain “registration”
was a permissible tailoring of relief
to the facts, given the
respondents’ attempt to effect transfer through CIPC. The
restoration order was incidental to the
declarator of ownership,
ensuring that the applicant’s rights were practically
enforceable.
[19]
The jurisprudence cautions against granting wholly new relief. Yet,
the orders granted here were not foreign
to the case; they were
incidental and necessary to render the declaratory and interdictory
relief effective. The respondents were
not procedurally prejudiced,
as the issues emerged fully from the evidence.
OTHER
GROUNDS OF APPEAL
[20]
The respondents’ remaining grounds — relating to
revocation of mandate, repayment of consideration,
restoration of
shares, reliance on
Du
Plessis v Pienaar
[8]
,
formulation of order, and ownership based on share certificate —
were addressed in the judgment. The respondents fail to
demonstrate
any error of fact or law.
[21]
The statutory requirements for transfer of shares under the
Companies
Act were
not complied with. No valid sale was perfected. The
applicant remained the lawful owner of his shares.
CONCLUSION
[22]
The respondents have failed to demonstrate reasonable prospects of
success on appeal. The contention that
the Court granted relief
outside the pleadings is without merit. The orders granted were
incidental to the pleaded case, grounded
in the evidence, and
necessary to render the declaratory and interdictory relief
effective.
ORDER
[23]
In the result, the following order is made:
1. The
application for leave to appeal is dismissed.
2. The
respondents are ordered to pay the costs of this application jointly
and severally, the one paying the
other to be absolved, on the party
and party Scale C.
________________________________
MPN MBONGWE
JUDGE OF THE HIGH
COURT
GAUTENG DIVISION
PRETORIA
APPEARENCES
For
Applicant:
Ms A. Vorster
Instructed
by:
Mothle Jooma Sabdia Inc.
For
the Respondent:
Mr K. Bokaba
Instructed
by:
Thobakgale Attorneys Incorporated
Date
of Hearing:
17 February 2026
Date
of Judgement:
08 June 2026
THIS
JUDGEMENT WAS ELECTRONICALLY TRANSMITTED TO THE PARTIES’ LEGAL
REPRESENTATIVES AND UPLOADED ONTO CASELINE ON 08 JUNE
2026.
[1]
Molusi
v Voges N.O.
2016 (3) SA 370
(CC) at paras 27–28.
[2]
Fischer
v Ramahlele
2014 (4) SA 614
(SCA) at paras 13–15.
[3]
Municipal
Workers Retirement Fund v Kopanong Local Municipality
1978 (4)
SA
182 (T).
[4]
De Beer
NO v North-Central Local Council
[2001] ZACC 9
;
2002 (1) SA 429
(CC) para 11.
[5]
Slabbert
v Slabbert
2012 (5) SA 1 (SCA).
[6]
Johannesburg
City Council v Bruma 32 (Pty) Ltd
1984 (4) SA 871 (T).
[7]
Combustion
Technology (Pty) Ltd v Technoburn (Pty) Ltd
2003 (1) SA 265 (C).
[8]
Du
Plessis v Pienaar NO and Others
2003
(1) SA 671
(SCA).