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[2026] ZAGPPHC 848
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Coetzee v Neethling N.O. and Others (2025-034141) [2026] ZAGPPHC 848 (29 July 2026)
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IN THE HIGH COURT OF
SOUTH AFRICA
(GAUTENG DIVISION,
PRETORIA)
CASE NUMBER:
2025-034141
DATE HEARD : 28 JULY
2026
(1)
REPORTABLE: YES/NO
(2)
OF INTEREST TO OTHERS JUDGES: YES/NO
(3)
REVISED
..... DATE 29 July 2026
SIGNATURE
In the matter between:
MARIO
COETZEE
Applicant
and
PIETER JOHANNES
NEETHLING N.O.
First Respondent
FRANCOIS MARTHINUS
VENTER N.O.
Second Respondent
ANDRIES JOHANNES NEL
N.O.
Third Respondent
PIETER JOHANNES
NEETHLING
Fourth Respondent
57 PONTIAC (PTY)
LTD
Fifth Respondent
NATIONAL DIRECTOR OF
PUBLIC PROSECUTIONS
Sixth Respondent
This order is made an
Order of Court by the Judge whose name is reflected herein, duly
stamped by the Registrar of the Court and
is submitted electronically
to the Parties/their legal representatives by e-mail. This
Order is further uploaded to the electronic
file of this matter on
Case Lines by the Judge or his/her secretary. The date of this
Order is deemed to be 29 July 2026.
JUDGMENT
DU
PLESSIS, AJ
INTRODUCTION
1.
1.
The applicant, Mr Mario Coetzee,
seeks an order directing the first to fourth respondents to restore
to him a number of classic
motor vehicles, alternatively to pay their
value, together with the repayment of various cash amounts and
credits. The claim is
advanced in unjustified enrichment: the
applicant contends that the first to fourth respondents were enriched
at his expense through
performance which he says he rendered towards
the purchase of the Soshanguve Plaza Shopping Centre, a purchase that
was never carried
into effect by transfer to the intended purchaser.
2.
The first to third respondents are
the trustees for the time being of the Pieter J Neethling Beleggings
Trust (“the Trust”).
The fourth respondent, Mr Pieter
Johannes Neethling, is the first respondent in his personal capacity
and deposed to the answering
affidavit of the first to fourth
respondents. The fifth respondent, 57 Pontiac (Pty) Ltd (“Pontiac”),
is the company
which the applicant caused to be incorporated and of
which he claims to be the sole shareholder; its sole director is the
applicant's
brother, Mr Etienne Coetzee, who resides in the
Netherlands. The sixth respondent, the National Director of Public
Prosecutions,
is cited as an interested party only and has taken no
part.
3.
The application is opposed by the
first to fourth respondents jointly. An answering affidavit was also
filed in the name of the
fifth respondent by Mr Jaco Koster of Koster
Attorneys, on the instructions of Mr Etienne Coetzee. In addition to
opposing the
relief, the first to fourth respondents brought an
application under rule 6(15) of the Uniform Rules of Court to strike
out portions
of the founding affidavit. At the hearing before me, Mr
B Reynders appeared for the first to fourth respondents. There was no
appearance
for the applicant or for the fifth respondent.
4.
Being satisfied that the applicant
and the fifth respondent were duly served with notice of the hearing
and elected not to appear,
I heard Mr Reynders. For the reasons that
follow, the applicant's application against the first to fourth
respondents falls to
be dismissed.
THE
PAPERS AND PROCEDURAL HISTORY
5.
The application was launched as one of
urgency in March 2025 and set down for 22 April 2025. All the
affidavits, and all three sets
of heads of argument, date from April
2025. On 23 April 2025 the matter was struck from the urgent roll,
with costs, by Yende AJ.
Thereafter it was the first to fourth
respondents — and not the applicant — who applied for a
date on the opposed motions
roll; the matter was set down, on their
initiative, by notice of set-down dated 26 June 2026, and came before
me in the ordinary
course.
6.
The relief sought is final relief. The
applicant filed a founding affidavit and a replying affidavit; the
first to fourth respondents
filed an answering affidavit deposed to
by the fourth respondent; and an answering affidavit was filed in the
name of the fifth
respondent by its attorney. The replying affidavit,
so far as it goes, is directed largely at the alienation of the
vehicles and
confirms that the property was sold at auction and
transferred to Danny Gunn Properties (Pty) Ltd. It does not answer
the central
factual disputes to which I refer below.
SERVICE,
NON-APPEARANCE AND THE PRACTICE DIRECTIVES
7.
A court may determine a matter in the
absence of a party who has had due notice of the hearing. Service of
a notice of set-down
may be effected by email under rule 4A, at the
address a party has nominated for service. The applicant and the
fifth respondent
each nominated an email address for service in these
proceedings, at which their attorneys of record accepted service; the
notice
of set-down of 26 June 2026 was transmitted to those
addresses, and its delivery appears from the electronic file as
paragraph
6.3 of the practice directive requires. I am satisfied that
both the applicant and the fifth respondent were duly served with
notice
of the hearing and have elected not to appear, and that I may
properly proceed to determine the matter in their absence.
8.
The conduct of opposed motions in this
Division is governed by the consolidated Practice Directive 1 of
2024. It requires, among
other things, that the parties hold a
pre-hearing conference and prepare a joint practice note (paragraphs
25.17 and 25.18) and,
where an opponent fails to cooperate, that the
aggrieved party file a unilateral practice note and declare the
opponent in default
(paragraph 25.19). No practice note, joint or
unilateral, was filed, and it was for the first to fourth
respondents, as the party
that applied for the date, to have attended
to this. Paragraph 6.9, however, empowers the court to condone
non-compliance, and
the court in any event retains a discretion in
such matters. In the present case the issues are adequately defined
by the affidavits
and the heads of argument already filed; Mr
Reynders was able fully to address me upon them; and no prejudice
results from the
absence of a practice note, the more so as the
applicant elected not to appear. I therefore condone the
non-compliance with paragraphs
25.17 to 25.19 and proceed to deal
with the matter.
THE STRIKING-OUT
APPLICATION
9.
The
first to fourth respondents seek, under rule 6(15), to strike out
paragraphs of the founding affidavit that make allegations
of
municipal-clearance fraud, threats, and criminal conduct. Two
requirements must be met before matter is struck out: it must
be
scandalous, vexatious or irrelevant; and the party seeking the relief
must be prejudiced if it is not struck.
[1]
Much of the impugned material bears on issues genuinely raised in the
papers — in particular the treatment of the municipal
charges
and the deductions from the sale proceeds — and could not be
struck as irrelevant merely because it is discreditable;
[2]
[3]
nor does the requisite prejudice, in the sense required, appear to be
established.
[4]
Since the
application falls to be dismissed on the grounds set out below, it is
unnecessary to decide the striking-out application,
and I would in
any event not have been inclined to grant it. I record only that I
have had regard to the impugned material solely
to the limited extent
that it bears on the civil issues, and I attach no weight to the
untested allegations of criminality as such.
I make no separate order
as to the costs of that application.
LOCUS STANDI
10.
The
applicant accepts, in his heads of argument, that he was not a party
to the sale agreements and has no contractual claim; his
claim is one
in unjustified enrichment, which he identifies as the
condictio
ob causam finitam
.
Its elements are settled: enrichment; impoverishment; that the
enrichment was at the applicant's expense; and that it was
unjustified.
[5]
A presumption of
enrichment arises on payment or delivery, and the recipient bears the
onus of disproving it;
[6]
the
defence of non-enrichment is narrow.
[7]
11.
The
difficulty for the applicant lies in the requirements that the
enrichment be at his expense and unjustified. It is common cause
that
each of the agreements — the sale of 26 October 2019, the
agreement of 9 October 2020, the addendum of 29 January 2021,
the
settlement addendum of 8 March 2021, and the memorandum of
understanding of 3 November 2021 — was concluded between the
Trust and Pontiac, and not with the applicant. The first agreement
preceded Pontiac's incorporation, and to that extent the applicant
contracted for a company to be formed under
section 21
of the
Companies Act 71 of 2008
; but Pontiac neither rejected nor failed to
ratify that agreement and is regarded as having ratified it,
[8]
and the remaining agreements were concluded by Pontiac in its own
name. The performance in issue — whether the payments or
the
delivery of the vehicles — was rendered in discharge of
Pontiac's obligations under those agreements. A debt may be
discharged by a third party even without the debtor's authority,
[9]
and the fact that the funds or the vehicles may have been the
applicant's does not convert Pontiac's performance into the
applicant's.
The authorities on which the applicant relies concern
the recovery of a payment made without an underlying obligation;
[10]
they do not assist a party who accepts that the performance was
rendered under valid agreements to which he was not party.
12.
Where there is a
causa
for the transfer — here, the agreements between the Trust and
Pontiac — the transfer is not made without cause, and
the right
to cancel for repudiation and to reclaim performance vests in the
contracting party, Pontiac, and not in the applicant.
On the facts as
they must be accepted, the applicant is not the party in whom any
restitutionary claim vests. He has not established
his
locus
standi
to claim the relief sought, and
the application fails on that ground alone.
THE DEREGISTRATION OF
PONTIAC
13.
The conclusion just reached is reinforced
by a further matter. It is common cause on the papers that Pontiac
was incorporated on
8 June 2020 and was finally deregistered on 21
January 2024. A company that has been finally deregistered ceases to
exist as a
juristic person; it can neither sue nor be sued, nor be
represented, nor validly oppose. The answering affidavit filed in the
name
of the fifth respondent is, for that reason, of no effect, quite
apart from the applicant's unresolved challenge under
rule 7(1)
to
the authority of those purporting to act for it. More importantly, if
the right to reclaim the performance vests in Pontiac,
as I have
held, that right cannot presently be pursued by anyone, because
Pontiac does not exist and has not been restored to the
register. The
applicant's attempt to assert the claim in his own name cannot cure
that difficulty.
DISPUTE OF FACT
14.
There
is a further and independent obstacle. The applicant seeks final
relief. Such relief may be granted on motion only if the
facts
admitted by the respondents, together with the facts they allege,
justify it, unless the respondents' version is bald, uncreditworthy,
or so far-fetched as to be rejected on the papers.
[11]
The affidavits are both the pleadings and the evidence, and the
applicant must make out his case in the founding papers.
[12]
15.
The
answering affidavit of the fourth respondent is not a bald denial. It
sets out a detailed version: that no agreement was ever
concluded
with the applicant personally; that all performance was rendered by
Pontiac under the agreements; that Pontiac short-paid
the deposit and
fell into arrears with the municipal charges; that the memorandum of
understanding recorded the parties' final
arrangement, under which
the Trust would retain the performance already made and pay the net
proceeds of the auction to Pontiac
in full and final settlement of
all claims; and that the Trust performed its obligations and did not
repudiate. On that version
— which, the applicant not having
appeared to displace it, must be accepted — the applicant has
established no basis
for restitution. The fifth respondent's
alternative request for a referral to oral evidence
[13]
was not pursued and does not arise: the applicant, who bears the
onus, sought final relief and did not appear, and the disputes
fall
to be resolved against him on the papers.
Non-joinder of Mr
Etienne Coetzee
16.
Finally,
the applicant failed to join Mr Etienne Coetzee, who has a direct and
substantial interest in the matter — a legal
interest that may
be prejudicially affected by an order.
[14]
He is the sole director of Pontiac, the contracting purchaser; he
concluded several of the agreements relied upon; he and his father
are said to have contributed to the purchase price; and it is his
complaint that founds the criminal proceedings referred to in
the
papers. His non-joinder is a further reason why the applicant's
application, as constituted, cannot succeed. The dismissal
of the
application grants no relief against Mr Etienne Coetzee and does not
prejudice him; it is therefore no impediment to the
order I make.
CONCLUSION
17.
For these cumulative reasons — the
applicant's want of
locus standi
,
the deregistration of Pontiac, the genuine disputes of fact that
preclude final relief on the papers, and the non-joinder of Mr
Etienne Coetzee — the applicant has not made out a case for the
relief sought, and the application against the first to fourth
respondents must be dismissed. No relief was sought against the fifth
or sixth respondents, and the order is confined accordingly.
COSTS
18.
Costs follow the result. The applicant has
been unsuccessful and must pay the costs of the first to fourth
respondents, who alone
appeared to oppose the application. Having
regard to the nature, complexity and volume of the matter, I consider
it appropriate,
in accordance with
rule 67A
, that those costs be
allowed on scale C. The fifth respondent did not appear, has been
finally deregistered, and its opposition
was in any event advanced
while its representation was in dispute; it would not be appropriate
to make any costs order in its favour
or against it. The costs
occasioned by the striking-out application are subsumed in the costs
of the application.
COSTS
In the result, I make the
following order:
1.The applicant's
application against the first to fourth respondents is dismissed.
2. The applicant is
ordered to pay the first to fourth respondents' costs of the
application, such costs to include the fees of
the legal practitioner
who appeared, on scale C.
3. There is no order as
to the fifth respondent's costs.
DU
PLESSIS AJ
ACTING
JUDGE OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
29
JULY 2026
APPEARANCES
Date
of hearing:
28
July 2026
Date
of judgment:
29
July 2026
For
the applicant:
No
appearance
For
the first to
Mr
B Reynders
fourth
respondents:
A
L Maree Incorporated, Pretoria
For
the fifth respondent:
No
appearance
Sixth
respondent:
No
appearance (no relief sought)
[1]
Beinash
v Wixley
[1997] ZASCA 32
;
1997 (3) SA 721
(SCA) at 733.
[2]
Vaatz
v Law Society of Namibia
1991 (3) SA 563
(Nm) at 566C-E.
[3]
Fisheries
Development Corporation of SA Ltd v Jorgensen
1979 (3) SA 1331
(W)
at 1339E-F.
[4]
New
Salt Rock City (Pty) Ltd v Kilken Platinum (Pty) Ltd 2024 JDR 2407
(GP) at para 8.
[5]
Kudu
Granite Operations (Pty) Ltd v Caterna Ltd
[2003] ZASCA 64
;
2003 (5)
SA 193
(SCA) at para 17.
[6]
Id
at para 21.
[7]
General
Council of the Bar of South Africa v Geach
2013 (2) SA 52
(SCA) at
para 201.
[8]
Section
21(5)
of the
Companies Act 71 of 2008
.
[9]
Absa
Bank Ltd v Moore
[2016] ZACC 34
;
2017 (1) SA 255
(CC) at para 33.
[10]
Besselaar
v Registrar, Durban and Coast Local Division
2002 (1) SA 191
(D) at
196-7; African Diamond Exporters (Pty) Ltd v Barclays Bank
International Ltd
1978 (3) SA 699
(A) at 713.
[11]
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984
(3) SA 623
(A) at 634I-635C;
Masipa
v Masipa
2020
JDR 1054 (GP).
[12]
Minister
of Land Affairs and Agriculture v D & F Wevell Trust
2008
(2) SA 184
(SCA) at para 43;
Bayat
v Hansa
1955
(3) SA 547
(N) at 553D.
[13]
Rule
6(5)(g) of the Uniform Rules of Court.
[14]
Amalgamated
Engineering Union v Minister of Labour
1949 (3) SA 637
(A) at 659;
Gordon v Department of Health, KwaZulu-Natal
[2008] ZASCA 99
;
2008
(6) SA 522
(SCA) at paras 9 and 11.