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[2026] ZAGPJHC 733
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Hogg and Others v Bolhuis and Others (2025/112704) [2026] ZAGPJHC 733 (19 June 2026)
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, JOHANNESBURG
Case
Number: 2025-112704
1.
REPORTABLE: NO
2. OF INTEREST TO OTHER
JUDGES: NO
3.
REVISED: NO
19
June 2026
In
the matter between:
GREGORY
HOGG
First Applicant
THERESA
HOGG
Second Applicant
GTD
EXPRESS (PTY) LTD
Third Applicant
and
MICHAEL
LESTER
BOLHUIS
First Respondent
MADUKA
CARRIERS
CC
Second Respondent
MLB
DIENSTE
(PTY) LTD
t/a
SPECIALISED SECURITY SERVICES
Third Respondent
Neutral
Citation
: Gregory Hogg & Theresa
Hogg & Gtd Express (Pty) Ltd v Michael Lester Bolhuis &
Maduka Carriers CC & MLB Dienste
(Pty) Ltd t/a Specialised
Security Services (112704-2025) [2026] ZAGPJHC ------ (19 June 2026)
Coram
:
Khaba AJ
Heard
:
30 April 2026
Delivered
:
19 June 2026 – This judgment was handed down electronically by
circulation to the parties’ representatives by email,
by being
uploaded to CaseLines and by release to SAFLII. The date for
hand-down is deemed to be 19 June 2026.
Summary:
Practice
and Procedure – costs – urgent application for interim
interdict – costs reserved – condition that
defamation
action be instituted – failure to institute action –
premature application for costs – abuse of process
–
application dismissed.
ORDER
1.
The
application is dismissed.
2.
The
costs of the urgent application stand reserved, such costs to be
determined upon the conclusion of the defamation action which
the
applicants are directed to institute pursuant to paragraph 4 of the
court order granted by Malungana AJ on 21 July 2025.
3.
The
applicants are ordered to pay the respondents’ costs of this
application on the attorney and client scale.
JUDGMENT
KHABA, AJ:
Introduction:
[1]
This
matter is an unfortunate sequel to what should have been the
conclusion of a dispute. On 21 July 2025, the parties appeared
before
Malungana AJ and consented to a comprehensive court order that
granted the applicants substantial interim relief, including
an
interdict against certain statements, provision for the exchange of
information, and the reservation of costs for later determination.
The applicants now seek an order that the respondents pay the costs
of that urgent application. The respondents have opposed the
application on the grounds that it is premature. The respondents
contend that the applicants have not complied with a fundamental
term
of the court order they obtained. The respondents contend that the
applicants’ have acted
mala
fide
,
and the application should be dismissed.
The
terms of the consent court order:
[2]
The
court order of 21 July 2025 is not ambiguous. It must be read as a
whole. Paragraph 4 of the court order provides that the interim
interdict is granted “
pending
the finalisation of a defamation action to be instituted by the
applicants.”
Those
words are not surplusage. They are not a polite suggestion. They are
a condition. They are the very foundation upon
which the interim
relief rests.
[3]
The
legal nature of an interim interdict is well established in our law.
It is a temporary remedy. Its purpose is to preserve the
status
quo
pending the final determination of the parties' rights in action
proceedings. An interim interdict is not an end in itself; rather,
it
is a means to an end. The end is the final relief to be obtained at
trial, where the merits of the dispute are fully ventilated.
[4]
The
structure of the court order makes this clear. The applicants sought
and obtained interim relief. In exchange, they undertook
to institute
a defamation action. That was the bargain. That was the basis upon
which the respondents consented to the court order.
The applicants
cannot now ignore their part of the bargain while seeking to enforce
the part that benefits them.
The
applicants’ failure to act:
[5]
The
applicants have not instituted the defamation action. This is common
cause. The respondents’ attorney, Ms. Opperman, states
this on
oath. The applicants’ attorney, Mr. Botha, does not deny it.
Mr. Botha offers no real explanation. Mr. Botha rather
points to the
fact that the respondents have not delivered their enquiries in terms
of paragraph 5 of the court order. That may
be a legitimate
contention. But it is not an answer.
[6]
The
institution of a defamation action did not depend on the delivery of
enquiries. The applicants could have issued summons on
their own
initiative. They could have pleaded their case. They could have set
the matter down for trial. They did none of these
things. The
applicants have allowed the matter to remain dormant for nearly a
year, and now they are approaching this court for
a costs order. This
is not how the orderly administration of justice operates.
[7]
What
inference can be drawn from the applicants conduct? The applicants
obtained the interim interdict. They silenced the respondents.
They
achieved their immediate objective. Then they did nothing. No steps
were taken to institute the defamation action. The only
reasonable
inference is that the applicants never intended to institute that
action. They are content to remain in the interim
position. Such
conduct is inconsistent with that of a litigant who genuinely seeks
final relief.
The
premature nature of this application:
[8]
The
question of who is the successful party in the urgent application
cannot be determined in isolation. The interim relief was
always
intended to be temporary. The true measure of success will only be
known once the defamation action is finalised. If the
applicants
succeed in that action, they may well be entitled to the costs of the
urgent application. If they fail, or if the action
is never
instituted, a different outcome may follow.
[9]
To
award costs at this juncture would effectively pre-judge the outcome
of the main action, resulting in demonstrable prejudice
to the
respondents. Such a course would also be inimical to the clear
terms of the court order granted by Malungana AJ, which
expressly
reserves costs for determination upon the finalisation of the action
not before, and certainly not while the applicants
remain in default
of their own undertaking.
[10]
The
applicants have invited this court to find that they are the
successful party solely on the basis that they obtained interim
relief. This submission is flawed. An interim interdict is, by its
very nature, a temporary remedy. It is intended to preserve
the
status
quo
pending the final determination of rights in action proceedings. In
this matter, the interim relief is expressly conditional upon
the
institution of an action, and the applicants have not complied with
that condition, they cannot claim the status of a successful
litigant
entitled to costs. To hold otherwise would be to render the
conditional nature of the order meaningless. The applicants
cannot
seek the benefit of the interim order while ignoring the very
obligation that gave rise to it.
The
conduct of the applicants:
[11]
The
respondents submit that the applicants have acted
mala
fide.
There is considerable force in this submission. The evidence shows
that the applicants refused to include a timeframe for the
institution of the defamation action in the draft order. They
insisted on the interim interdict without any temporal limitation.
That was a tactical choice.
[12]
A
significant period has passed since the court order was granted. No
action has been instituted. The applicants have not even taken
preliminary steps. They have sat on the order. They have used it as a
shield. Now they seek to use the court order as a sword to
claim
costs. This is an abuse of the process of this court.
[13]
A
litigant who obtains interim relief must pursue the final relief with
reasonable diligence. This is not merely a matter of good
practice.
It is a requirement of fairness. The respondents have been subjected
to an interim interdict for nearly a year without
any final
determination of their rights. The applicants cannot be allowed to
prolong this uncertainty indefinitely while simultaneously
claiming
costs.
Conclusion:
[14]
The
applicants have not demonstrated that they are entitled to an order
for costs at this stage. The question of the costs of the
urgent
application must stand over until the finalisation of the defamation
action. The proper time for determining the costs of
the urgent
application is after the finalisation of the defamation action.
This
is precisely what the court order of Malungana AJ contemplates.
The
applicants failure to institute that action is inexplicable. The
applicants’ pursuit of this cost’s application
is
premature and unreasonable.
Costs:
[15]
The
applicants have pursued this costs application unreasonably. They
have forced the respondents to oppose it. They have done so
despite
their own failure to comply with a fundamental term of the order. In
these circumstances, a punitive costs order is warranted.
The
applicants are ordered to pay the costs of this application on the
attorney and client scale. This order is necessary to mark
this
court’s displeasure at the applicants conduct. It is also
necessary to deter other litigants from seeking interim relief
and
then failing to pursue final relief while claiming costs.
Order:
[16]
Accordingly, the following order is made:
1.
The application is dismissed.
2.
The costs of the urgent application stand
reserved, such costs to be determined upon conclusion of the
defamation action which the
applicants are hereby directed to
institute pursuant to paragraph 4 of the court order granted by
Malungana AJ on 21 July 2005.
3.
The applicants’ are ordered to pay
the respondents’ costs of this application on the attorney and
client scale.
KHABA
AJ
ACTING
JUDGE OF THE HIGH COURT
GAUTENG
DIVISION, JOHANNESBURG
Appearances:
For the
Applicants’:
Adv. H Scholtz
Instructed
by:
JJR Botha Attorneys
For the
Respondents’:
Adv. M van Der Westhuizen
Instructed
by:
Opperman Attorneys
C/O
UMS Attorneys
Date of
Hearing:
30 April 2026
Date of
Judgment:
19 June 2026