( 1) REPORT ABLE: NO
(2) OF INTEREST TO OTHER JUDG
(3) REVISED: NO
In the matters between:-
JONATHAN HENDRICKS
TRACY HENDRICKS
ROZELDA MEYER
and
JOHN FREDERICK SCHICKERLING N.O.
NADASEN MOODLEY N.O.
JOHANNES ZACHARIA MULLER N.O.
PHP ARMED RESPONSE (PTY) LTD
THE MASTER OF THE HIGH COURT - PRETORIA
First Applicant
Second Applicant
Third Applicant
First Respondent
Second Respondent
Third Respondent
Fourth Respondent
Fifth Respondent
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JUDGMENT
H F JACOBS, AJ
[1] The unsuccessful applicants apply for leave to appeal the judgment of 28
August 2025. The fourth and fifth respondents counter apply for relief in terms of sub
section 18(3) of the Superior Courts Act 10 of 2013 to the effect that the operation and
execution of the order granted in their favour should not be suspended in terms of
section 18( 1) pending any further application for leave to appeal. I refer to the parties
as in the main application. The applicants contend that the section 18(3) application
may only be considered if leave to appeal is granted. Erasmus et al1 write as follows
on the topic: "An application for leave to execute a decision under s 18(1) of the Act
can be made even if an application for leave to appeal has not yet been lodged. A
mere indication of intent to apply for leave to appeal, or a reasonably anticipated
application for leave to appeal, constitutes sufficient ground to bring an application
under s 18(1). In other words, the power of a High Court to order that a decision be
put into operation is not contingent on the decision having been suspended by virtue
of the lodging of an application for leave to appeal. Simply put, courts 'must be the
guardians of their own process and be quick to avoid a toing and froing of litigants'.
The applicants' contention is, therefore, at variance with judgments of our courts on
the point and cannot be upheld. The fourth and fifth respondents anticipate further
attempts by the applicants to obtain leave to appeal. I will deal with the application for
leave to appeal first.
Superior Court Practice RS 7, 2025 at D-124B, and in fine the authorities cited in footnotes 32
and 33 by the authors
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[21 In the main judgment, the purpose of an inquiry under Chapter XIV of Act
61 of 1973 is outlined. Leave to appeal is not sought on the grounds that the law
referenced involves a material misdirection. Counsel for the applicants argues that
complying with the subpoenas would breach the Protection of Personal Information
Act 4 of 2013. This argument does not acknowledge that such inquiries are private
and confidential unless a court or the Master decides otherwise. No such ruling is
cited. The argument is without merit and must be dismissed.
[31 The applicants argue that the subpoenas issued by Mr Schickerling are too
broad and that his actions amount to nothing more than a fishing expedition, which
requires judicial review of the subpoenas. I do not agree. The authorities cited in my
judgment demonstrate that a commissioner like Mr Schickerling may (and is obliged
to) seek evidence and information to, in this instance, assess the validity of the
allegations concerning R16 000 000 of Mamba PHP's funds. Any challenge raised by
the applicants in the review should be and must be presented under oath during
evidence before the commissioner. The law is well established on this point, and the
applicants' behaviour undermines the statutory framework established by Chapter XIV
of Act 61 of 1973.
[41 I do not believe that the appeal has a reasonable chance of success or that
there is any other strong reason for it to be heard. On the contrary, the application and
the application for leave to appeal are abuses of process, and the grounds put forward
for relief are contrived. I now turn back to the section 18(3) application.
[5] To succeed with an application for an execution order under sub-section
18(3), the fourth and fifth respondents must prove the existence of exceptional
circumstances, demonstrate that they will suffer irreparable harm if the order is not
granted, and show that the party against whom the order is sought (the applicants in
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casu) will not suffer irreparable harm if the order is granted. Consideration of each of
the three requirements does not occur in isolation, and to treat each as separate would
result in an invalid exercise of judicial discretion.2
[6] In my view, the mere existence of the application for review brought by the
applicants makes the circumstances exceptional. It is contrived and undermines the
legislation mentioned in my judgment of 28 August 2025. In my opinion, the first of the
three requirements has been demonstrated to exist. What the commissioner seeks
here is information and evidence to fulfil his statutory duties. Compliance with the
subpoenas and the giving of evidence under oath by the applicants cannot harm them
in a way that causes irreparable damage or prejudice if leave to execute the judgment
is granted. They may have legal representation before the commissioner, and all their
objections can be raised and considered by the commissioner. The requirement or
factor mentioned exists, in my opinion, against refusing the execution order.
[7] The commissioner is expected to perform his statutory duties promptly and
effectively. In the present circumstance, these duties have been delayed by these
proceedings since 21 August 2023 Gust under three years). Considering the facts of
the matter and my opinion that the review application is contrived and intended to
cause delays in the enquiry into the affairs of the liquidated company, there is a real
risk of irreparable harm and prejudice to the commissioner and the body of creditors
(and the fourth and fifth respondents) if permission to execute the judgment is denied.
They have been exposed to the risk of the liquidated company's funds being lost, and
this third factor in the application works against the applicants.
2 See Tyte Security Services CC v Western Cape Provincial Government 2024 (6) SA 174 (SCA)
at (1 O] - (21]
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[8] Taking into account all the facts and circumstances of the case, as Tyte3
states, I exercise my discretion in favour of the granting of the relief sought in terms of
section 18 of Act 10 of 2013.
[9] As stated earlier, the review application and the application for leave to
appeal are without merit and amount to an abuse of process. The respondents should
be awarded costs for both applications.
I make the following order:
1. Leave to appeal is refused.
2. The respondents' counter-application is upheld, and it is ordered that
paragraphs 2 and 3 of the order dated 28 August 2025 are to be maintained
and not suspended in terms of section 18(3) of Act 10 of 2013, pending any
application for leave to appeal.
3. The applicants shall pay the costs of the fourth and fifth respondents in respect
of the application for leave to appeal and the counter-application.
HF JACOBS
ACTING J DGE F THE HIGH COURT
GA DIVISION, PRETORIA
Delivered: This judgment was handed down electronically by circulation to the parties'
legal representatives by e-mail. The date and time for hand-down is on the 8th of June
2026 at 13h00.
3 Supra
DATE OF HEARING: 25 MAY 2026
DATE OF JUDGMENT: 8 JUNE 2026
APPERANCES
Attorneys for applicant:
Counsel for Applicant:
Attorneys for 1st Respondent:
Counsel for 1st Respondent:
Attorneys for 4th & 5th Respondents :
Counsel for 4th & 5th Respondents:
MJ HOOD & ASSOCIATES
Email: martin@mjhood.co.za
Adv M Snyman SC
Email: msnyman@snymanfamilie.co.za
Schickerling Inc
Email: derek@dslegal.co.za
Adv L Acker
Email: lizelle@ackerlaw.co .za
Andersen Attorneys
Email: Keshia.manolios@za.anderson.com
Adv HA Van Der Merwe
Email: heinicloud@icloud.com
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