SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
CASE NO: 2024-054106
In the matter between:
SONIA SIZAKHELE LUBBE
[ID 6[…]]
Applicant
And
KAREN KEEVY N.O.
[In her capacity as joint liquidator of Lubbe
Construction (Pty) Ltd (in liquidation)
Master’s reference G987/2021]
First Respondent
SIMON JIYANE N.O.
[In his capacity as joint liquidator of Lubbe
Construction (Pty) Ltd (in liquidation)
Master’s reference G987/2021]
Second Respondent
BENNIE KEEVY N.O.
[In his capacity as joint liquidator of Sam Lubbe
Investments (Pty) Ltd (in liquidation)
Master’s reference G1222/2024]
Third Respondent
TASNEEM SHAIK MAHOMED N.O.
[In her capacity as joint liquidator of Sam Lubbe
Investments (Pty) Ltd (in liquidation)
Master’s reference G1222/2024]
Fourth Respondent
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: YES
25 AUGUST 2026
DATE SIGNATURE
Page 2 of 21
MASTER OF THE SOUTH GAUTENG HIGH
COURT JOHANNESBURG
Fifth Respondent
COMPANIES AND INTELLECTUAL
PROPERTY COMMISSION
Sixth Respondent
In re:
KAREN KEEVY N.O.
[In her capacity as joint liquidator of Lubbe
Construction (Pty) Ltd (in liquidation)
Master’s reference G987/2021]
First Applicant
SIMON JIYANE N.O
[In his capacity as joint liquidator of Lubbe
Construction (Pty) Ltd (in liquidation)
Master’s reference G987/2021]
Second Applicant
And
SAM LUBBE INVESTMENTS (PTY) LTD Respondent
JUDGMENT
DE VILLIERS-GOLDING AJ
Introduction
[1] This is a n interlocutory application, by way of which the applicant seeks the
referral of a disputed issue in the main application to oral evidence in terms
of Uniform R ule 6(5)(g). The first to fourth respondents oppose th is
application on procedural grounds.
[2] The disputed issue concerns the correct identity of the holder of an ABSA
Bank account, with account number 9[…] (“the ABSA Bank account”). It is
common cause that the disputed issue is central to the determination of the
main application.
[3] The relevant background and context can be summarised as follows:
Page 3 of 21
a) On 22 October 2024, the first and second respondents , in their
capacities as the joint final liquidators of Lubbe Constr uction (Pty) Ltd
(in liquidation) (“Lubbe Construction”), procured a final-winding up order
in respect of Sam Lubbe Investments (Pty) Ltd (“SLI”) on an unopposed
basis (“the liquidation order”).
b) The liquidation of SLI was sought based on inter alia the allegation that
SLI is indebted to Lubbe Construction in the amount of R10 000 000.00
given the following facts:
i) on 6 and 7 July 201 7, Lubbe Construction made two payments of
R5 000 000.00 each, from its bank account to the bank account of
SLI, the latter being the ABSA Bank account;
ii) these payments were dispositions without any value as
contemplated in section 26 of the Insolvency Act ( 24 of 1936) ,
alternatively were paid without a valid causa; and
iii) SLI has not repaid the amount of R10 000 000.00 to Lubbe
Construction, despite demand as provided for in section 345 of
the Companies Act (61 of 1973) (“the old Act”).
c) On 11 August 2025, the applicant ( the sole director of SLI) instituted
the main application, wherein she seeks an order in terms of which the
liquidation order is set aside in terms of section 354 of the old Act. The
applicant contends inter alia that she was unaware of the liquidation
application; and Lubbe Construction did not pay SLI , and SLI did not
receive, R10 000 000.00 as alleged in the liquidation application.
d) The applicant specifically contends that SLI is not the account holder of
the ABSA Bank account. The applicant states in paragraph 32 of the
founding affidavit in the main application as follows:
“On investigation, I discovered that ABSA account 9[…] does not
belong to Sam Lubbe Investments but to Lubbe Construction
(Pty) Ltd. I attach hereto as "SFA 4" an ABSA print -out of the
account reflecting Lubbe Construction Pty Ltd as the account
Page 4 of 21
holder. It appears that account 9[…] was a cash investment
account belonging to Lubbe Construction Pty Ltd.”
e) The first and second respondents oppose the main application. They
inter alia 1 persist with the contention that SLI is the account holder of
the ABSA Bank account. In this regard, they rely on the following:
i) The evidence of Mr. Mandla Samual Lubbe during a n enquiry in
terms of sections 417 and 418 of the old Act, in relation to Lubbe
Construction. It is asserted in the answering affidavit that Mr.
Lubbe “admitted the payments were made to SLInvestments from
Lubbe Construction to avoid attachment thereof”2. It is also stated
that Mr. Lubbe confirmed under oath that three disclosed bank
accounts, which did not include the ABSA Bank account, were the
only bank accounts ever opened in the name of Lubbe
Construction.3
ii) The following averment in paragraph 5.10 of the answering
affidavit in the main application:
“In addition, I can confirm that as part of the enquiry and in
compliance of our statutory duties in the administration of Lubbe
Construction, all of the major banks were subpoenaed to produce
information and/or bank statements of any and/or all bank
accounts opened at their institutions by Lubbe Constr uction and
no other number but the three accounts referred to abov e, was
forthcoming.”
4
f) A replying affidavit , wherein the applicant reiterates her position with
regard to the ABSA Bank account, has been delivered.
1 The first and second respondents also challenge the applicant’s locus standi and raise a point
in limine of non-joinder.
2 Answering affidavit, CL15-24, para 5.4.
3 Answering affidavit, CL15-27, paras 5.7 to 5.9.
4 These three accounts exclude the ABSA Bank account.
Page 5 of 21
g) The applicant subsequently delivered a notice in terms of Uniform Rule
35(12) calling on the first and second respondents to inter alia make
available for inspection:
“The bank statement of Lubbe Construction Pty Ltd (in
liquidation) for its bank account number 9[ …] held at ABSA Bank
Limited for the period 1 July 2017 to 31 July 2017.”
h) The first and second respondents replied (by way of notice) to the Rule
35(12) notice, stating as follows:
“This document does not exist. From the bank account
statements provided by Mr. Lubbe and/or ABSA, Lubbe
Construction (Pty) Ltd never held a bank account at Absa with
account number 9[…] .”
i) On or about 15 May 2026, the applicant delivered a notice in terms of
Rule 6(5)(g), in the following terms:
“TAKE NOTICE that application will be made on behalf of the
abovenamed applicant on a date and time to be determined by
the Registrar for an order in the following terms:
1. With regard to the affidavits filed of record, the Rule
35(12) Notice and the answer thereto, directing that the
issue specified below be referred to oral evidence as
contemplated in Rule 6(5)(g) of the Uniform Rules of
Court;
2. Granting the applicant leave to subpoena such a person
employed by ABSA Bank Limited for the purpose of giving
viva voce evidence at the hearing of the main application
as contemplated in 1. above;
THE SPECIFIED ISSUE
Page 6 of 21
The determination of the identity of the account holder of ABSA
bank account 9[…] as disputed in the papers before the Court as
follows:
• The applicant’s allegation in, inter alia, paragraph 32 of
the founding affidavit that the account holder of the said
account is/was Lubbe Construction Pty Ltd;
• The respondents’ allegation in, inter alia, paragraph 5.10
of the answering affidavit that the holder of the said
account is/was Sam Lubbe investments Pty Ltd;
• The applicant’s repeated allegation in, inter alia,
paragraph 27.1 of the replying affidavit that the account
holder of the said bank account is/was Lubbe
Construction (Pty) Ltd.”
j) On 14 July 2026, the first to fourth respondents delivered a notice of
intention to oppose the application in terms of Rule 6(5)(g). I pause to
mention that the third and fourth respondents are cited in the main
application as the joint liquidators of SLI. It has not been explained why
the third and fourth respondents oppose this application, but seemingly
do not oppose the main application (only the first and second
respondents have delivered an answering affidavit in the main
application). Nonetheless, this does not inform the reasoning and
outcome below.
The applicant’s stance
[4] The applicant cautiously approaches the disputed issue as constituting a
genuine dispute of fact, which puts the applicant at risk, given the required
application of the Plascon-Evans Rule in the main application.
5 A referral of
5 In Democratic Alliance in re: Electoral Commission of South Africa v . Minister of Co-
operative Governance 2022 (1) BCLR 1 (CC) this Rule was described in footnote 15, as
follows:
“The Plascon-Evans rule is that an application for final relief must be decided on the fact s
stated by the respondent, together with those which the applicant states and which the
respondent cannot deny, or of which its denials plainly lack credence and can be rejected
outright on the papers.”
Page 7 of 21
the disputed issue to oral evidence is accordingly, so the applicant contends,
justified.6
[5] The applicant acknowledges the established principle that an application for
the referral of a disputed issue to oral evidence should be made as soon as
affidavits are exchanged, in limine (on the threshold) or initio (in the
beginning) and not after arguing the merits.
7
[6] The applicant contends that, absent this interlocutory application, the
practical impact that a referral to oral evidence will have, is a postponement,
with concomitant costs . This is so, because the applicant requires a
representative of ABSA Bank to be subpoenaed.
[7] This is the fundamental reason why the applicant approaches the court on
an interlocutory basis. Mr. Nel, who appeared on behalf of the applicant,
submitted that, in these circumstances, it is necessary to approach the court
by way of an interlocutory application, in order to obtain the required order,
implement the said order and have an appropriate ABSA Bank
representative subpoenaed. In this manner, the applicant seeks to ensure
that when the main application is set down for hearing, it is ripe for hearing
and can proceed (in an orderly fashion) during the motion court week, as
directed by the presiding judge.
The respondents’ grounds of opposition
[8] Four principal grounds of opposition were asserted by the first to fourth
respondents (hereinafter referred to collectively as “ the respondents”) in the
heads of argument delivered on their behalf.
[9] In the first instance, it was contended that a Rule 6(5)(g) application is
required to be made by way of a notice of motion, supported by an affidavit,
and the applicant’s notice in terms of Rule 6(5)(g) , absent a supporting
affidavit, is irregular and impermissible.
6 With reliance placed on Room Hire Co (Pty) Ltd v. Jeppe Street Mansions (Pty) Ltd 1949 (3)
SA 1155 (T).
7 With reference to Parker v. Quantum Leap Investments 386 (Pty) Ltd [2024] ZAWCHC 70
7 With reference to Parker v. Quantum Leap Investments 386 (Pty) Ltd [2024] ZAWCHC 70
and Africa’s Best Foods (Pty) Ltd v. CISA Specialita Alimentari S.R.L. 2025 JDR 1074 (GJ)
at [29].
Page 8 of 21
[10] This contention was advanced with reference to Molatjane v. Joffe and
Another8 and in particular what was stated by Friedman AJ in paragraph 14
of the judgment, emphasised in the quote below:
“Despite saying, in the letter dated 24 May 2021, that
Ms Molatjane's next step would be to issue summons, the
applicant took a different approach. On 3 August 2021, the
applicant uploaded onto Caselines a defective application in
terms of rule 6(5)(g) of the Uniform Rules seeking an order
referring the matter to trial. In doing so, the applicant sought
further relief directing the founding affidavit to stand as the
declaration in the action and the answering affidavit as the plea.
The application is defective because it was not brought on notice
of motion supported by a founding affidavit. It also seeks relief
which plainly cannot be granted – most notably the request that
the answering affidavit should stand as a plea, which would
prevent the respondents from asserting their rights in terms of
rule 23 of the Uniform Rules.”
[11] I do not read the aforesaid statement as an articulation of the general legal
position, as it is , or should be. Considered in context, the statement relates
to the application and facts in the case that presented in Molatjane
specifically.
[12] In any event, during argument, Mr. Marais , who appeared on behalf of the
respondents, accepted (correctly, in my view) that an application in terms of
Rule 6(5)(g) may be brought on notice (absent a supporting affidavit), as per
the express provisions of Rule 6(11) and as explained in Africa’s Best
Foods (Pty) Ltd v. CISA Specialita Alimentari S.R.L.
9
[13] Mr. Marais clarified that the respondents’ contention is not that a supporting
affidavit is required as an absolute rule, but rather that a supporting affidavit
is required in the circumstances of this case, given that the applicant seeks
8 Molatjane v. Joffe and Another 2022 JDR 0711 (GJ).
8 Molatjane v. Joffe and Another 2022 JDR 0711 (GJ).
9 Africa’s Best Foods (Pty) Ltd v. CISA Specialita Alimentari S.R.L. 2025 JDR 1074 (GJ) at
[30] to [42].
Page 9 of 21
leave to subpoena an ABSA Bank representative, and the details of this
representative ought to have been disclosed in a supporting affidavit.
[14] The second ground of opposition is premised on the contention that it is only
the court seized with the main application that has the discretion to refer a
disputed issue to oral evidence as provided for in Rule 6(5)(g). In this regard,
the respondents rely on three averments:
a) The express wording of Rule 6( 5)(g) contemplates that the application
for referral ought to be made in limine before the court hearing the main
application and not by way of a separate interlocutory application.10
b) The Insolvency Motion Court (“IMC”) Directive (“Directive”) precludes a
separate interlocutory application. T his averment is articulated as
follows in paragraph 11 of the respondents’ heads of argument:
“Paragraphs 14 and 15 of the I MC Directive provide that where
disputes requiring oral evidence arise, the Judge allocated to
hear the IMC matter gives the necessary procedural directions ,
including directions concerning oral evidence and referral to trial.
No Judge has yet been allocated. The notice therefore seeks to
invoke that power prematurely.”
c) The court deciding the application in terms of Rule 6( 5)(g) needs to
have regard to the affidavits in the main application, and the suggestion
is that this court cannot have regard to the affidavits in the main
application as it is not seized with the determination of the main
application.
[15] The third ground of opposition is premised on the contention, with reference
to Africa’s Best Foods,11 that an applicant in an interlocutory application in
terms of Rule 6(5)(g) must demonstrate that the hearing of the application for
10 Further reliance was placed on Lombaard v. Droprop CC and Others 2010 (5) SA 1 (SCA) at
[53] wherein it was reiterated that an application to refer a disputed issue to evidence should be
made at the outset and not after argument on the merits. This is simply a restatement of the
established legal position that an applicant must make its election as to a referral at the outset.
11 Africa’s Best Foods (Pty) Ltd v. CISA Specialita Alimentari S.R.L. 2025 JDR 1074 (GJ) at
[57].
Page 10 of 21
referral is both convenient and will not disrupt the hearing of the main
application, and that the applicant has failed to do so.
[16] This (the third) ground evidently contradicts the second ground of opposition,
in that it is premised on the contention that an interlocutory application in
terms of Rule 6(5)(g) is permissible, subject to the stated condition.
[17] The fourth and final ground of opposition is that the interlocutory
determination of the Rule 6(5)(g) application “creates the possibility that one
Court will determine the procedural framework while another determines the
merits”.
12
Overview: established principles regarding the referral to oral evidence as
contemplated in Rule 6(5)(g)
[18] Rule 6(5)(g) provides as follows (with emphasis added):
“Where an application cannot properly be decided on affidavit the
court may dismiss the application or make such order as it
deems fit with a view to ensuring a just and expeditious decision.
In particular, but without affecting the generality of the
aforegoing, it may direct that oral evidence be heard on specified
issues with a view to resolving any dispute of fact and to that end
may order any deponent to appear personally or grant leave for
such deponent or any other person to be subpoenaed to appear
and be examined and cross -examined as a witness or it may
refer the matter to trial with appropriate directions as to pleadings
or definition of issues, or otherwise.”
[19] Accordingly, i f facts are in dispute, rendering a court unable to make a
decision on the affidavits, the court has a discretion as to the future conduct
of the proceedings. The court may dismiss the application, or refer a
specified issue for determination by way of oral evidence, or refer the matter
to trial.
12 Respondents’ heads of argument, CL14-36, para 25.
Page 11 of 21
[20] The court has a wide judicial discretion to determine the most just and
expeditious path forward.13
[21] In respect of the latter two options (mentioned in paragraph 19) , the court is
required to select the most suitable method of employing viv a voce evidence
for the determination of the dispute.14
[22] The court will refer a specified issue to oral evidence when the factual
dispute is within a narrow compass and can be expeditiously disposed of.15
[23] Once it is established that a genuine dispute of fact exists , the test is
whether the referral to oral evidence could affect the outcome of the main
application. Stated differently, whether there are prospects of viva voce
evidence “tipping the balance” in favour of the applicant. 16 This question is
ultimately decided against the backdrop of the Plascon- Evans Rule and the
benefit that oral evidence provides.17
Analysis: the respondent’s opposition
The first ground – the supporting affidavit argument
[24] As stated above, the respondent s’ argument is that the Rule 6(5)(g)
application ought to have been supported by an affidavit , which ought to
have addressed the identity of the ABSA Bank representative sought to be
subpoenaed. During argument , the line of reasoning was that the
respondents are entitled to know who the Absa Bank representative is that
13 Metallurgical and Commercial Consultants v . Metal Sales Co (Pty) Ltd 1971 (2) SA 388
(W) and Wood v. Miller and Another 2025 JDR 1737 GJ.
14 Room Hire Co (Pty) Ltd v . Jeppe Street Mansions (Pty) Ltd 1949 (3) SA 1155 (T) at 1162 -
1165.
15 Standard Bank of SA Limited v. Neugarten 1987 (3) SA 695 (W) at 699C.
16 Trust Bank van Afrika Bpk v Western Bank Bpk en Andere NNO 1978 (4) SA 281 (A) at
294D- 295A; Kalil v . Decotex (Pty) Ltd 1988 (1) SA 943 (A) at 979B – 980B; Knipe v .
Kameelhoek (Pty) Ltd 2014 (1) SA 52 (FB) at 60D -E; Hansa Silver (Pty) Ltd v. Obifon (Pty)
Kameelhoek (Pty) Ltd 2014 (1) SA 52 (FB) at 60D -E; Hansa Silver (Pty) Ltd v. Obifon (Pty)
Ltd t/a The High Street Auction Co 2015 (4) SA 17 (SCA) at 26D -F; Shoprite Holdings
Limited v. Oblovitz [2006] 3 All SA 491 (C) under the heading “Recourse to oral evidence”.
See also 4 Africa Exchange (Pty) Ltd v. Financial Sector Conduct Authority 2020 (6) SA
428 (GJ) at [10].
17 I.e., the opportunity to observe witnesses . See for instance Trust Bank van Afrika Bpk v
Western Bank Bpk en Andere NNO 1978 (4) SA 281 (A) at 294D - 295A and the authorities
referred to therein.
Page 12 of 21
will be called and what this person will say. The suggestion was that absent
such information, the respondents are prejudiced.
[25] This argument disregards two important points:
a) First: the disputed issue is narrow and well-defined. Its materiality to the
determination of the main application is also common cause. The Rule
6(5)(g) notice makes it plain that : [i] the applicant seeks the referral of
the disputed issue to oral evidence; [ii] she seeks to call an appropriate
ABSA Bank representative to give evidence in respect of the disputed
issue; and [iii] to that end, she seeks leave to subpoena the said
representative. It cannot be said that the respondents do not know what
case they are called upon to meet in this – the Rule 6(5)(g) –
application. I also did not understand Mr. Marais to contend differently.
b) Related to, and as a consequence of, the first point , the respondents
know for what purpose the ABSA Bank representative is sought to be
subpoenaed and called as a witness: to give evidence regarding the
identity of the account holder of the ABSA Bank account.
c) Second: the proposed order, which aligns with the salutary
formulation
18 in Metallurgical and Commercial Consultants (Pty) Ltd
v. Metal Sales Co (Pty) Ltd 19 ensures that the respondents will know
the identity of the witnesses that the applicant will call and what such
witnesses intend (broadly speaking) to say, and vice versa.
[26] I accordingly reject the first ground of opposition.
The second ground – the “premature” argument
[27] Rule 6 (5)(g) does not provide that only the court seized with the main
application may exercise the referral powers provided for in the Rule. “The
court” referred to in Rule 6(5)(g), includes an interlocutory court. This is
18 See Standard Bank of SA Limited v. Neugarten 1987 (3) SA 695 (W).
19 Metallurgical and Commercial Consultants (Pty) Ltd v. Metal Sales Co (Pty) Ltd 1971 (2)
SA 388 (W).
Page 13 of 21
acknowledged in inter alia Africa’s Best Foods20, on which the respondents
rely.
[28] The express provisions of the Directive do also not support the legal
conclusion contended for by the respondents. In fact, the provisions of
paragraph 14 and 15 of the Directive suggest the opposite: it is not
necessarily the court that orders the referral to oral evidence, that ultimately
hears the oral evidence and determines the main application. These
paragraphs provide as follows (with emphasis added):
“14. To the extent that:
14.1. there is a dispute in the application proceedings that
requires oral evidence or determination by trial, or,
14.2 the affidavits and documents in the application are of such
a volume and/or complexity that the application cannot
practicably be heard in the IMC and therefore requires a
special allocation (generally, matters that can be argued
within a day by the IMC will not fall into this category and
are to be determined by the IMC);
then, the judge allocated to hear the matter in the IMC
shall, after hearing submissions from the parties (where
such submissions are, as may be directed by the allocated
judge, made in open court, in chambers, by way of a virtual
case management meeting and/or by way of written
submissions made before the hearing), give such directions
as may be necessary to ensure that the matter is ripe for
hearing so that it may be specially allocated by the DJP
(whether before the same judge, in due course, or to
another judge). The objective is that parties are to engage
constructively with the allocated judge to advance the
efficient determination of the matter , and that the
appropriate directions are put in place by no later than the
conclusion of the allocated judge’s roll in the IMC for that
20 Africa’s Best Foods (Pty) Ltd v. CISA Specialita Alimentari S.R.L . 2025 JDR 1074 (GJ) at
[58].
Page 14 of 21
week, and so facilitate the subsequent allocation of the
matter by the DJP to the extent that the allocated judge
cannot determine or otherwise dispose the matter on his or
her IMC roll during that week.
15. Such directions by that judge shall include directions in
relation to:
15.1. the exchange of further affidavits between the parties,
including in relation to the intervention and/or joinder of any
further parties and the exchange of any further heads of
argument and practice notes, due regard being had to the
caution against the deliberate protraction of proceedings;
15.2. the appropriate narrowing of and identification of issues
that remain in dispute;
15.3. the ad hoc hearing of oral evidence by that judge in that
week in the IMC, which would be particularly appropriate
where a factual dispute is narrow and requires limited oral
evidence;
15.4. to the extent that there is a factual dispute that requires
determination by oral evidence that cannot be decided as
provided for in the preceding sub-paragraph, the
formulation of an appropriate Metallurgical-type order (see
Metallurgical and Commercial Consultants (Pty) Ltd v Metal
Sales Co (Pty) Ltd 1971 (2) SA 388 (W) at 396G – 397B);
15.5 to the extent there is to be referral to trial, the formulation of
an appropriate referral order including as to the role of the
affidavits that have been delivered, particularly for purposes
of narrowing the issues in dispute (regard being had to inter
alia Lekup Prop Co No 4 (Pty) Ltd v Wright 2012 (5) SA
246 (SCA), paragraph 32)”
[29] Mr. Marais, upon being confronted with paragraph 14.2 of the Directive ( as
emphasised in the quote above) submitted that I am not “the judge allocated
to hear the matter in the IMC” as it is not the main application (i.e., “the
Page 15 of 21
matter”), but rather the interlocutory application, that presents before me (in
the IMC). I disagree.
[30] The aim of the interlocutory application, as advanced by the applicant, is
specifically to meet the objective as expressed in paragraph 14.2 of the
Directive: constructive engagement, to “advance the efficient determination
of the matter”.
[31] The interpretation contended for by the respondents , promotes form over
substance, which is contrary – and will achieve the exact opposite – to this
objective, and is thus unsustainable.
[32] This brings me to the respondents’ third averment in support of the second
ground of opposition. I agree that the court tasked with deciding whether to
refer a disputed issue to oral evidence, needs to have regard to the affidavits
in the main application. Given that a Rule 6(5)(g) application may in
appropriate cases be brought on notice (without a supporting affidavit), such
as the present matter, the court will by implication need to consider the
affidavits in the main application and specifically the portions referred to in
the Rule 6(5)(g) notice which identifies where the disputed issue/s present of
the papers.
[33] I disagree with the contention that an interlocutory court cannot or may not
have regard to the main application papers. Whilst this submission is made
by the respondents, it is unsubstantiated. An interlocutory court does not sit
with proverbial blinkers on and is simply not precluded from having regard to
the affidavits in the main application.
21
[34] As appears from the background summarised in paragraph 3, I have
considered the application papers . Further, as stated in paragraph 2, it is
common cause that the disputed issue is central to the determination of the
main application. I expand on this, to the extent necessary, under the
heading “Conclusion and order” below.
21 See for example Coetzer v. Wesbank t/a FirstRand Bank Ltd 2022 (2) SA 178 (GJ) and WB
v. RB 2024 (4) SA 316 KZD [8].
Page 16 of 21
[35] I accordingly reject the second ground of opposition.
The third ground – the “not convenient” argument
[36] Whilst Africa’s Best Foods,22 on which the respondents rely , relate to an
application for the referral of an application to trial, as opposed to the referral
of a narrow defined issue to oral evidence, I agree that an applicant that
approaches a court for a referral as contemplated in Rule 6(5)(g) by way of
an interlocutory application must demonstrate that such an approach is
appropriate in all the circumstances and will facilitate the efficient
determination of the matter. Various factors play a role. A core factor is the
ambit of the dispute and whether a referral to oral evidence or trial is being
sought.
[37] The Directive also provides guidance and indicates that practicality is
encouraged. Parties and their legal representatives are required to apply
their minds to procedural issues. An expedient and cost -effective approach
is endorsed.
[38] I am of the view that the applicant has demonstrated that the manner in
which the Rule 6(5)(g) application has been prosecuted is appropriate in all
the circumstances and will facilitate the efficient determination of the main
application. The applicant cannot be faulted for proceeding in terms of Rule
6(5)(g), in the manner that she has . In this regard, I refer to what is stated in
paragraph 7 above and hereinbelow.
[39] In response to the applicant’s motivation, it was submitted on behalf of the
respondents that there is no reason why the referral to oral evidence,
subpoena process and hearing of the main application, including the hearing
of oral evidence, cannot take place during the motion court week that the
main application is set down for hearing. This submission does not take into
account various processes, procedures and practicalities, such as those
catered for in the recommended order (as per Metallurgical and
catered for in the recommended order (as per Metallurgical and
22 Africa’s Best Foods (Pty) Ltd v. CISA Specialita Alimentari S.R.L . 2025 JDR 1074 (GJ) at
[57].
Page 17 of 21
Commercial Consultants v. Metal Sales Co (Pty) Ltd 23) when referring a
specified disputed issue to oral evidence.
[40] The reality is that a subpoenaed witness is entitled to reasonable notice and
an opposing party is entitled to an opportunity to prepare to cross -examine a
witness. These are but two practical issues that require attendances and
time. They are also the exact issues that counter the prejudice alluded to on
behalf of the respondents under their first ground of opposition.
[41] In addition, it is unlikely that the presiding judge in any given week in the IMC
will only have one matter to dedicate the week to. The Directive (as quoted
above) acknowledges this.
[42] The respondents’ suggested approach is impractical and will undoubtedly
lead to a postponement, with attendant costs and further delay.
[43] I accordingly reject the third ground of opposition.
The fourth ground – the “fragmented” argument
[44] The crux of the fourth ground of opposition is the assertion that the court
seized with the main application, may hold a different view to this court in
respect of the referral of the disputed issue to oral evidence and
nevertheless be bound by the decision of this court.
[45] This assertion is incorrect. Given that the finding of this court is interlocutory,
should the court seized with the main application hold a different view, and
thus that oral evidence is not necessary , (be it for example that the dispute
is in fact not genuine and can be rejected on the basis of the answering
affidavit or that the main application ought to be dismissed for a different
reason), the court may decide the matter on the affidavits .
24 Such a decision
23 Metallurgical and Commercial Consultants v. Metal Sales Co (Pty) Ltd 1971 (2) SA 388
(W).
24 Wallach v. Lew Geffen Estates CC 1993 (3) SA 258 (A) at 262I to 263I ; and Shoprite
Holdings Limited v . Oblovitz [2006] 3 All SA 491 ( C) at 500F to 501B. See also Zondi v.
Holdings Limited v . Oblovitz [2006] 3 All SA 491 ( C) at 500F to 501B. See also Zondi v.
MEC, Traditional and Local Government Affairs, and Others 2006 (3) SA 1 (CC) at para
[30].
Page 18 of 21
ought obviously not to be taken lightly and ought to be informed by the facts
and status of the matter at the relevant time.
[46] This principle was articulated in Wallach v. Lew Geffen Estates CC as
follows: 25
“That being so, it was open to the Court a quo to hold, as it did,
that it was unnecessary to hear oral evidence and to decide the
matter on the papers. I do not consider that it did so lightly.
Indeed there were considerations of the most weighty why it
should do so. To have heard oral evidence in circumstances
where that would not and could not have affected the outcome of
the claim for substantive relief would have been to incur wholly
unnecessary costs and to involve wholly unnecessary delay.”
[47] The further suggestion that there is some irregularity in one court issuing
procedural directives and another court determining the merits of the matter,
as quoted in paragraph 17 above, is also unsustainable. Our law of civil
procedure (motion and action) caters for a myriad of procedural rulings and
directives that a court may issue, which is not necessarily the court ultimately
seized with the determination of the merits of the case, which aids the
efficient administration of justice.
[48] In this instance, I have found that the procedure adopted by the applicant is
appropriate for the efficient determination of the main application. I refer to
what I have stated in respect of the third ground of opposition above. I
further find, as expanded upon in the conclusion below, that it is necessary
and just for oral evidence to be heard on the dispute issue.
[49] I accordingly reject the fourth ground of opposition.
Conclusion and order
[50] The disputed issue falls within the first category of factual disputes
considered in Room Hire Co (Pty) Ltd v. Jeppe Street Mansions (Pty)
Ltd
26 and it is central to the determination of the main application.27
25 Wallach v. Lew Geffen Estates CC 1993 (3) SA 258 (A) at 263G.
Page 19 of 21
[51] Given that the liquidation order was sought and granted based on SLI’s
alleged indebtedness to Lubbe Construction (as described in paragraph 3.b),
I am also of the view that the determination of the dis puted issue is required
for the fair and just determination of the main application.
[52] There are prospects that viva voce evidence could affect the outcome of the
main application and the test (as described in paragraph 23) has been met.
[53] In all the circumstances , I am of the view that it is appropriate to refer the
disputed issue to oral evidence.
[54] Costs ought to follow the result. On the question of the scale of costs,
submissions were made ( on behalf of the applicant and respondents) in
support of a punitive costs order. I decline to grant a punitive order.
[55] During argument, I was advised that the respondents’ attorneys applied for
and were allocated 7 September 2026 as a date for the hearing of the main
application (on the opposed IMC roll). I was further advised that the
application for a date was made after the institution of the Rule 6(5)(g)
application. I am not certain on what basis the Registrar could have been
approached for an opposed hearing date whilst the R ule 6(5)(g) application
remained pending and given that a joint practice note as contemplated in
paragraph 8.1.1 has seemingly not been delivered. The submissions did not
go further than that stated herein and as such I refrain from making any
finding in this regard.
[56] Given the order that I make below, the main application will not be ripe for
hearing on 7 September 2026. The matter ought to be removed from the roll
by way of notice and the Registrar ought to be informed accordingly, without
delay.
[57] I formulate the order below, based on Metallurgical and Commercial
Consultants (Pty) Ltd v. Metal Sales Co (Pty) Ltd.
28 I am mindful that the
26 1949 (3) SA 1155 (T) at 1163.
27 This is common cause, as stated in paragraph 2.
26 1949 (3) SA 1155 (T) at 1163.
27 This is common cause, as stated in paragraph 2.
28 Metallurgical and Commercial Consultants (Pty) Ltd v. Metal Sales Co (Pty) Ltd 1971 (2)
SA 388 (W).
Page 20 of 21
time periods provided for in the order need to be adjusted to ensure the
required exchanges occur timeously , and prior to the hearing date, as the
matter ought to be ripe for hearing, and the parties ought to have engaged
on a meaningful joint practice note, when application is made for a date. I
have endeavoured to adjust the time periods accordingly.
[58] In the result, I make the following order:
a) The matter is referred for the hearing of oral evidence, at the hearing of
the main application, on the question of the correct identity of the holder
of ABSA Bank account number 9[…] .
b) The evidence shall be that of any witnesses whom the parties or either
of them may elect to call.
c) Neither party shall be entitled to call any witness unless:
i) he/she has served on the other party a statement wherein the
evidence to be given in chief by such person is set out . Such
statement shall be delivered, in the case of a witness to be called
by the applicant, within 25 court days of making this order, and, in
the case of a witness to be called by any of the respondents,
within 30 court days of making this order; or
ii) the court, at the hearing, permits such person to be called despite
the fact that no such statement has been so served in respect of
his/her evidence.
d) Either party may subpoena any person to give evidence at the hearing
whether such person has consented to furnish a statement or not.
e) The fact that a party has served a statement in terms of sub- paragraph
(c)(i) above, or has subpoenaed a witness, shall not oblige such party
to call the witness concerned.
f) Within 20 court days of the making of this order, each of the parties
shall make discovery on oath of all documents relating to the issue
Page 21 of 21
referred to in paragraph (a) above, which are or have at any time been
in the possession or under the control of such party.
g) Such discovery shall be made in accordance with Uniform Rule 35 and
the provisions of that Rule with regard to the inspection and production
of documents discovered shall be operative.
h) The costs of this Rule 6(5)(g) application shall be paid by the first to
fourth respondents (jointly and severally, the one paying the other to be
absolved) including the costs of counsel, on scale B.
________________________________________
C De Villiers-Golding
Acting Judge of the High Court of South Africa
Gauteng Division, Johannesburg
This judgment and order is made 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 email. The judgment and order will be uploaded to the electronic file of
this matter on Caselines by the Judge’s secretary. The date of this judgment and order is
deemed to be 25 Augustus 2026.
Heard: 30 July 2026
Judgment: 25 August 2026
For the applicant: Adv. CJC Nel
Instructed by: Van der Meer & Schoonbee Attorneys
For the first to fourth respondents: Adv. JJ Marais
Instructed by: Rabie Botha & Associates Inc.