IN THE HIGH COURT OF SOUTH AFRICA
NORTH WEST DIVISION, MAHIKENG
In the matter between:
MEC FOR DEPARTMENT OF HEALTH,
NORTHWEST
and
SOPHIE VICKIE SHASHAPE
THE SHERIFF OF THE HIGH COURT,
MAHIKENG
Coram: Wessels AJ
Judgment reserved: IO July 2026
(Receipt of Respondent's heads of argument)
Not reportable
Case no: 1105/2016
Applicant
First Respondent
Second Respondent
Delivered: This judgment was handed down electronically, circulated to the
parties' representatives via email, uploaded to CaseLines, and released to
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SAFLII. The date and time for the handing down of the judgment are deemed to
be 16h00 on 19 August 2026.
Summary: Stay of warrant of execut ion pending proceedings on duplicat ed taxed
items - authority challenge must follow rule 7(1 ) - prima facie right shown on
duplication , not on fees - relief confined to disputed items - costs of one
counse l only.
JUDGMENT
Wessels AJ
Introduction
[I] This is an urgent application to stay a warrant of execution issued on 22
June 2026 for R9 l 8,036.7 l. The applicant seeks the stay of the warrant of
exec ution pending proceedings to establish that part of the alleged indebted
amount is not owed. The first respondent opposes the application. The second
respondent abides.
[2] The first respondent raises seve ral points in limine, namely that the matter
is not urgent, that the deponent lacked authority to bring the application and that
the applicant has not met the requirements for an interim interdict. The respondent
furthermore objected to the evidence of Mr Khadafi Lehabe ('Mr Lehabe')
conta ined in a confirmatory and replying affidavit of the applicant as being
hearsay evidence. The answering affidavit raises another point in limine, non-
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joinder of the Taxing Master. That point is not advanced anywhere m the
respondent's heads of argument and I treat it as not persisted with.
Background facts
[3] The taxed accounts that underlie this application arise from an action
instituted by the first respondent against the applicant. The proceedings in this
action were postponed on 17 March 2025, which gave rise to a wasted costs order
in favour of the first respondent for which the applicant was liable. A final costs
order, also in the first respondent's favour, followed on 5 August 2025. Two bills
of costs and two taxations followed from these two orders. I refer to the taxation
of the wasted costs bill as 'the first taxation', and to the taxation of the bill arising
from the final costs order as 'the second taxation ' . It is common cause that the
first taxation took place on 5 December 2025 and that it was settled and taxed.
The second taxation took place on 8 May 2026. In the second taxation, more than
R800,000 was taxed off the first respondent's bill of costs. The State Attorney
appointed Lehabe Attorneys as costs consultants for the applicant in the second
taxation and seemingly also in the first taxation. I say seemingly because I could,
from the papers before me, not conclude that Mr Lehabe attended the first
taxation, but I am not enjoined to make a finding on this issue for the purpose of
this application.
[4] The applicant contends that if the first respondent were allowed to proceed
with the recovery of the amount reflected in the allocatur in the second taxation,
she would effectively be compensated twice for the same wasted costs, which the
applicant refers to as 'double dipping', as it appears that it contains items already
taxed in the first taxation for which the first respondent had already received
payment.
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The second taxation
[5] The first respondent's attorney, whom I refer to as 'Mr Seeletso ', states
that the parties reached an agreement after considering the applicant's objections.
About fifty per cent was taxed off the bill of costs in terms of that agreement.
According to Mr Seeletso, the taxing master was presented with the agreement
and signed the allocatur. The first respondent contends that the second taxation
was attended, for the applicant, by a representative of Lehabe Attorneys and not
by Mr Lehabe ( a director of that firm), himself. This distinction is of importance
to these proceedings, in relation to the first respondent's objection to Mr Lehabe's
evidence as hearsay and will be dealt with later in this judgment. On this account,
the taxing master exercised no independent function at the second taxation and
signed what was placed before him.
[6] Mr Lehabe denies allegations of a settlement of the second taxation 'in the
strongest possible terms'. He states the second taxation was formal and opposed,
and the applicant filed a detailed list of objections before the hearing of the second
taxation. According to Mr Lehabe, his mandate from the State Attorney was to
oppose the bill, not to settle it and he states any meetings before the hearing were
only to identify disputed items, not to negotiate a settlement.
[7] After the allocatur of the second taxation was issued, it surfaced that the
items already taxed in the first taxation again appeared in the bill of costs
presented at the second taxation. The State Attorney then instructed Lehabe
Attorneys to review the complete taxation process for double billing. On that
review, Lehabe Attorneys identified items 252, 253, 256, 257, 258, 330 and 331
of the bill taxed at the second taxation as apparent duplicates of items 1 to 6 of
the taxed bill at the first taxation ('disputed items').
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[8) Mr Lehabe explains in his affidavit that, at the time of the second taxation,
his firm was not asked, and did not undertake, to compare the bill taxed at the
second taxation against the bill already settled at the first. He states that a taxation
does not ordinarily call for that kind of comparison and that none was done at the
time. The first respondent denies that any item was duplicated. That remains a
dispute.
[9] The State Attorney raised the duplication of the fees, dealt with below, with
Mr Seeletso's firm, in an attempt to resolve the matter without litigation. On 22
June 2026, Mr Seeletso's firm rejected the complaint and enclosed the warrant of
execution. The applicant approached this Court urgently shortly thereafter.
[ l 0) I must decide whether the matter is urgent, whether the deponent had
authority to bring the application , what to make of the criticism of the
confirmatory affidav it of Mr Lehabe and whether the applicant has met the
requirements for an interim interdict. If I find in the applica nt's favour, I must
decide to what extent my order will affect the first respondent's warrant.
Urgency
[ 11] Rule 6(12)(b) requires an applicant to set out the circumstances that lay the
basis for urgency and why it cannot get substantial redress in due course. The first
respondent's counsel, relyin g inter a/ia on East Rock Trading 7 (Pty) Ltd v Eagl e
Valley Granite (Pty) Ltd 1, argues that the applica nt has not met this test. The
main point taken on urgency is that the State Liability Act2 ('State Liability Act')
1 East Rock Trading 7 (Pty) ltd v Eagle Valley Granite (Pty) ltd (2011] ZAGPJHC 196.
2 State Liabi I ity Act 20 of 1957.
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must first run its course before any attachment can be effected. On this argument,
the threat is neither immediate nor final.
[ 12] I do not accept this for the following reason. Section 3 of the State Liabil ity
Act sets out steps that precede attachment in execution and sale. Mandatory
compliance with these steps does not mean the applicant has no right worth
protecting until those steps are exhausted. Once the warrant is served and the
statutory steps are complete, the second respondent may attach and sell the
applicant's assets. If the applicant is correct , that pa1t of the debt is already paid
and harm caused becomes irreversible once the process runs its course. A
statutory delay before harm occurs does not remove the harm, it only postpones
it.
[13] The chronology of the facts shows the urgency is not self-created. The
applicant moved promptly once Lehabe Attorneys identified the duplication. It
raised the matter with Mr Seeletso's firm before litigating, in an attempt to resolve
it. East Rock Trading' itself holds that a delay caused by an attempt to settle a
matter should not count against urgency and that delay is not, on its own, a ground
that diminishes the urgency of a matter. The applicant launched this application
shortly after Mr Seeletso' s firm rejected that attempt on 22 June 2026. That
rejection, not the earlier discovery of the dispute, triggered the urgency. I find
that the applicant has established urgency and as a result, this point in limine fails.
Locus standi of the deponent
[14] In her opposing affidavit, the first respondent advances that the deponent
to the applicant's founding affidavit, Job Selle Maabela ('Mr Maabela') , had no
3 fdem, £as/ Rock Tradin g para 3.
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authority to bring this application because no written delegation was attached.
The manner of challenging such authority had been decided in Eskom v Soweto
City Council .,1992 (2) SA 703(W) at 705C-J and confirmed by the Supreme
Court of Appeal in Ganes and Another v Telecom Namibia Ltd5, wherein it sets
out how that challenge must be raised. Uniform Rule 7( I) allows a respondent
who disputes authority to give notice within ten days of becoming aware of the
apparent lack of such authority to require proof of authority. This issue is aptly
dealt with by Petersen J in the judgment of this Division in Mahikeng Local
Municipality v Clayton Virgil Harrison 6 as follows:
'In this Division the legal position is clear. Any challenge to the authority of a Municipal
Manager to launch an application on behalf of a municipality must be brought by way of Rule
7(1). The respondent has not challenged the authority of the Municipal Manger by way of Rule
7(1) and the point in limine on locu s standi must accordingly fail.'
[1 5] No Rule 7(1) notice was delivered by the first respondent. The point is
raised only in the answering affidav it. Absent a Rule 7 challenge, this point in
limine fails.
The confirmatory affidavit
[16] The first respondent criticises Mr Lehabe's confirmatory affidavit because
he was not present at the second taxation. The first respondent's counsel relies on
Masako v Masako and Von Abo v President of the Republic of South Africa 7 for
the proposition that a deponent without personal knowledge, who does not
disclose his source, carries no weight. The first respondent's counsel also points
4 Eskom v Soweto City Council 1992 (2) SA 703(W) at 705C-J.
5 Ganes and Another v Telecom Namibia ltd 2004 (3) SA 615 (SCA).
6 Mahikeng local Municipality v Harrison [202 1] ZANWHC 87 para 19.
7 Masako v Masako (724/2020) [2021] ZASCA 168, 2022 (3) SA 403 (SCA) para 26, and Von Abo v President
of the Republic of South Africa (CCT 67/08) [2009] ZACC 15, 2009 (5) SA 345 (CC)
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out that no confirmatory affidavit was filed by the representative of Lehabe
Attorneys who attended the second taxation.
[ 1 7] That criticism is well made for anything Mr Lehabe purports to confirm
about events at the second taxation itself and I disregard his affidavit to that
extent, and the same goes for his later reply insofar as it describes the
circumstances surrounding the second taxation. The application, however, does
not fail on this point. The duplication of the fees does not depend on events that
took place at the second taxation. It rests on Mr Lehabe's own review of his firm's
file and on a documentary comparison between the two bills emanating from the
first and second taxations. Mr Lehabe's evidence on what resulted from his
assessment of these bills is not hearsay and needs no confirmation from a witness
present at either taxation.
The requirements for an interim interdict
[ 18] The requirements are a prima facie right, though open to doubt, a well
grounded apprehension of irreparable harm, a balance of convenience favouring
relief, and no other satisfactory remedy.8
[19] The applicant relies on two grounds. Duplication of items already taxed
and paid at the first taxation and excessive counsel's fees. The duplication ground
is present in items 252, 253, 256, 257 and 258, and the excessive counsel's fees
ground is present in 3 3 0 and 3 31 of the bill of costs of the second taxation.
[20] Taxation fixes costs so execution can be levied, and stops a party paying
an excessive amount.9 Once signed, an allocatur is functus officio. The taxing
8 See Setlogelo v Setlogelo 1914 AD 221 and Webster v Mitchell 1948 ( I) SA 1186 (W).
9 Mouton v Martine 1968 (4) SA 738 (T) at 742A-B
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master cannot retax, amend, or supplement it.10 An item already taxed and paid
at the first taxation cannot be charged again at the second for the same work. The
first respondent does not dispute this principle. Her answer is factual, as she
denies that any item was charged twice. I have already found that this remains a
dispute, not resolved on the evidence before me and that I need not resolve it for
the inquiry into the existence of a prima facie right, given Mr Lehabe's
comparison of the two bills.
[21] I am, furthermore, not enjoined to decide whether the second taxation
proceeded by agreement or was formally opposed. An interim interdict needs
only a prima facie right, open to doubt. A court need not resolve a dispute of fact
at that stage. The current focus is narrower: whether the first taxation occurred
and if items already taxed were included in the bill taxed later. The first issue is
undisputed. Mr Lehabe's evidence supports the second issue, which I accept for
the reasons previously stated.
[22] Rule 48(1) allows review only of items objected to or disallowed mero
motu at the taxation in question. It reads:
'Any party dissatisfied with the ruling of the taxing master as to any item or part of an item
which was objected to or disallowed mero motu by the taxing master, may within 15 days after
the allocatur by notice require the taxing master to state a case for the decision of a judge.·
[23] Rule 48 is not the only route open to the applicant. A party who pays money
in the mistaken belief that it is due may recover it by inter alia the condictio
indebiti to the extent the recip ient was em·iched at the payer' s expense without
1° Crind/ays international Finance (Rhodesia) v Ballam 1985 (2) SA 636 (W) at 647D-E .
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legal cause. I mention that any remark relating to the specific route mentioned
herein is obiter at most.
Irreparable harm, balance of convenience and alternative remedy
[24] The applicant advances that its assets exposed to attachment are vehicles
used for patient transport and mobile clinics , computers running patient record
systems, and equipment used in medical procedures. Attaching and removing
these assets would immediately disrupt essential public healthcare services. A
sale at public auction would give permanency to that disruptio n. No monetary
award afterwards could restore the service lost in the meantime and a review
succeeding months or a year later would be academ ic, since the harm to the public
would already be done and could not be undone. The sale would cause harm no
later award could undo. I accept that this harm is real, but it must be measure d
against the right actually estab lished, not the whole warrant.
[25] For the disputed items on the bill of costs, the balance favours a stay. The
prejudice to the first respondent is a delay in payment of an amount that, on a
prima facie basis, is not properly owed. The prejudice to the applicant and the
public , if execution proceed s, is real and not easily reversed. For the rest of the
warrant, no case for a stay has been made. The first respondent is entitled to the
ordinary consequences of a taxed and unchallenged debt.
[26] No other satisfactory remedy exists for the disputed items. A custodian of
public funds should not have to pay a claim it has good reason to regard as
duplicated, then sue to recover it. That would itself be fruitless and wasteful
expenditure, apart from the delay and cost of further litigation to recov er money
that should never have been paid. An interim interdict , confined to the disput ed
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items, is the only way to preserve the position pending a final decision on whether
they are owed.
Scope of the relief
[27] Prayer 2 seeks a stay of the whole warrant. That is wider than the evidence
before me supports. An interdict should not be wider than the right it protects. I
have found a prima facie right only for the duplicated items. It would not be just
to stay execution of an amount the applicant has shown no basis to dispute. A
naiTower order, confined to the disputed items, should be granted.
[28] The founding papers identify the disputed items by number but do not total
their rand value. I will not attempt that computation on affidavit alone. The order
identifies the items by number, by reference to the bill taxed at the second
taxation, forming part of the allocatur of 8 May 2026. Their value for execution
can be ascertained from that document.
[29] I have not prescribe d the form of the proceedings the applicant must bring.
That is for the applicant to decide and the first respondent to meet on the merits.
I require only that some such proceed ings be brought within the period stated in
the order, failing which the stay lapses.
Costs
[30] There is no reason to deviate from the normal order, in interim applications,
that the costs of this application be determined by the Court hearing the
proceedings to be instituted by the applicant. Insofar as the costs of this
application are concerned, I am enjoined to address the number of counsel that
represented the first respondent. The first respondent employed two counsel to
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oppose this application. The relief opposed was an ordinary interdict, without
unusual volume or complexity. The employment of two counsel was not
warranted, and I limit the costs recoverable to those of one counsel, regardless of
the outcome of the proceedings still to be brought.
Order
[31] In the result, I make the following order:
The applicant's non-compliance with the forms and service in the Uniform
Rules of Court is condoned. This application is heard as one of urgency
under Rule 6(12).
2 The warrant of execution issued by the Registrar of this Court on 22 June
2026, under the above case number, is stayed as to items 252, 253, 256,
257, 258, 330 and 33 l of the bill of costs taxed at the second taxation,
forming part of the allocatur of 8 May 2026 ('the disputed items').
3 This order takes effect immediately. The stay in paragraph 2 subsists
pending final resolution of the proceedings referred to in paragraph 5.
4 Save as provided in paragraph 2, the second respondent may proceed with
execution of the warrant for the balance of the amount reflected in it.
5 The applicant must institute proceedings to estab lish that the disputed items
are not due and payable, whether by review, action, or otherwise, within
30 (thirty) court days of this order. Failing this, the stay in paragraph 2
lapses and the second respondent may execute the warrant in full.
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6 The costs of this application are costs in the proceedings referred to in
paragraph 5, limited to the costs of one counsel.
M WESSELS
ACTING JUDGE or THE HIGH COURT
NORTH WEST DIVISION, M/\HlKENG
Appearances
For the appl icant:
Instructed by:
For the first respondent:
Instructed by:
Adv B Riley
State Attorneys
Mmabatho
Adv X Nyoka, with Adv JK Vuza
TL Seeletso Attorneys , Mmabatho