IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CIRCUIT LOCAL DIVISION, THEMBALETHU)
Case number: 228/2026
In the matter between:
CV PROJECTS (PTY) LTD
Applicant
and
ADAPTFIN (PTY) LTD
First respondent
COEGA DEVELOPMENT CORPORATION (PTY)
LTD
Second respondent
ADAPHUMELELI TRADING 1133 CC
Third respondent
BLACK BELT SECURITY EXCELLENCE (PTY) LTD
Fourth respondent
TSOHA OIKETSETE ALUMINIUM GUTTERS
CONSTRUCTION CC
Fifth respondent
Coram: Van Zyl, J
Heard on: 4 August 2026
Judgment: : 26 August 2026
Summary: Application to have set tlement agreement made an order of court,
coupled with application for interim interdict – general principles – court not making
settlement agreements orders of court in the absence of pending litigation between
parties to such agreement – application for transfer of application for interdict to
another Division due to lack of jurisdiction – oral application from the bar – prospects
of success not a consideration to be dealt with by transferring court – order for
transfer of interdict application granted
___________________________________________________________________
ORDER
1. The applicant’s application, as set out in paragraph 2.1 of the notice
of motion dated 17 April 2026, to have the settlement agreement
concluded between it and the first respondent on 20 March 2026
made an order of court, is dismissed.
2. The applicant’s application for interdictory relief , as set out in
paragraphs 2.2 to 2.4, read with paragraph 3, of the notice of motion
dated 17 April 2026, is transferr ed to the High Court (Eastern C ape
Division, Gqeberha) for determination, pursuant to the provisions of
section 27(1)(a), read with section 27(2), of the Superior Courts Act
10 of 2013.
3. The applicant shall pay the second respondent’s costs up to and
including the date of the hearing of th is application on 4 August
2026, including counsel’s fees taxed on Scale B.
JUDGMENT
VAN ZYL, J:
Introduction
1. The applicant seeks, on an urgent basis and through a rule nisi , to
accomplish two distinct outcomes:
1.1 The first is to have a settlement agreement, concluded between the
applicant and the first respondent, made an order of court under
Rule 41 of the Uniform Rules of Court.
1.2 The second is to seek an order against the second respondent ,
effectively for payment of a contractual debt, by means of an interim
interdict.
2. Only the second respondent oppose s the application, in particular in relation
to the application for an interdict against it. The second respondent objected
to the application having been brought as one of urgency. It appeared to me,
however, that given the postponement of the matter after it had initially been
set down, the question of urgency (or the lack thereof) was no longer live,
and should not stand in the way of dealing with the merits of the parties’
dispute. I accordingly heard full argument.
3. There are various disputes on the papers, but in oral argument counsel
confined the argument to two issues: should the settlement agreement be
made an order of court, and should the remainder of the relief (that is, the
application for interim interdictory relief against the second respondent ) be
transferred to another Division of the High Court? Theses are dispositive of
the application, at least at this stage.
4. The second issue arose because the parties were, by the time the matter was
argued, in agreement that this court does not have the territorial jurisdiction to
determine the relief sought against the second respondent.
5. I discuss these two issues below.
Making the settlement agreement an order of court
6. The applicant and the first respondent concluded a settlement agreement on
20 March 2026, in which t hose parties made arrangements for the fulfilment
of certain contractual obligations that the applicant had undertaken as
regards the first respondent.
7. Rule 41 of the Uniform Rules of Court regulates the “withdrawal, settlement,
discontinuance, postponement, and abandonment ” of proceedings. Rule
41(4), upon which the applicant relies, provides as follows:
“Unless such proceedings have been withdrawn, any party to a settlem ent
agreement which has been reduced to writing and signed by the parties or their legal
representatives but which has not been carried out, may apply for judgment in terms
thereof on at least five days’ notice to all interested parties.”
8. A plain reading of the provision suggests that a settlement may be made an
order of court pursuant to the settlement of proceedings – and thus a lis –
between the parties involved. In Eke v Parsons1 the Constitutional Court held
that, for an order to be competent and proper, it must satisfy, amongst others,
the following requirement:
“[25] This in no way means that anything agreed to by the parties should be
accepted by a court and made an order of court. The order can only be one that is
competent and proper. A court must thus not be mechanical in its adoption of the
terms of a settlement agreement. For an order to be competent and proper, it must,
in the first place, 'relate directly or indirectly to an issue or lis between the
parties'. Parties contracting outside o f the context of litigation may not approach a
court and ask that their agreement be made an order of court. On this Hodd says:
'(I)f two merchants were to make an ordinary commercial agreement in writing, and
then were to join an application to court to have that agreement made an order,
merely on the ground that they preferred the agreement to be in the form of a
judgment or order because in that form it provided more expeditious or effective
remedies against possible breaches, it seems clear that the cou rt would not grant
the application.'
the application.'
That is so because the agreement would be unrelated to litigation.”
1 2016 (3) SA 37 (CC) para 25. My emphasis. See also Wolmarans NO and others v
Standard Bank of South Africa Ltd 2026 (1) SA 547 (SCA) para 57.
9. In Valor IT v Premier, North West Province 2 the Supreme Court of Appeal
explained:
“[52] In Eke v Parsons, a contractual dispute between two private individuals, the
Constitutional Court considered the nature and effect of settlements being made
court orders. Madlanga J held that, first, it is not anything agreed to by the parties
that can be made an order: the order must be 'competent and proper' in the sense
that it relates to the dispute with which the court was seized.”
10. This principle was confirmed by the Constitutional Court in Ekurhuleni City v
Rohlandt Holdings CC and others:3
“[48] … Eke requires that, before a court makes a settlement reached between the
parties an order of court, it must be 'competent and proper'. This requires that —
(a) the consent order must relate directly or indirectly to a lis (lawsuit) or issue
between the parties;
…
[50] Eke encourages a generous approach to this requir ement, so as not to burden
parties unduly, or deter them from settling their litigation. Thus ancillary or related
matters, not strictly central to the litigation, might form part of an approved
settlement. Absent such an approach, two settlement agreements might be required
to cover those issues relevant to a dispute, and those not, or a settlement might fail
because clauses important to one or both of the parties could not receive the benefit
of the court's sanction. On the other hand, a legal agreement r eached entirely
outside the context of litigation cannot be made an order of court.”
11. There is a glaring absence of details in the founding affidavit regarding the
dispute – in the sense of “proceedings” – between the applicant and the first
respondent, upon which the applicant relies for seeking an order that the
settlement be made an order of court. The only reference to proceedings is
to be found on the first page of the settlement agreement, which records that
the first respondent “ has commenced with legal proceedings ” against the
the first respondent “ has commenced with legal proceedings ” against the
2 2021 (1) SA 42 (SCA) para 52. My emphasis.
3 2025 (1) SA 1 (CC) paras 48 -50 (my emphasis). See also Mafisa v Road Accident Fund
2024 (4) SA 426 (CC) paras 39-40.
applicant. The settlement agreement does not indicate what the fate of any
such proceedings is given the resolution of the parties’ dispute. There is no
indication as to the court in which the proceedings were pending, and no
case number.
12. The settlement agreement, moreover, records that the parties consent to the
court's jurisdiction. There would hardly be a need for such a recordal if there
was pending litigation over which a court had jurisdiction.
13. The replying affidavi t is bare, too, despite an express invitation to the
applicant in the second respondent’s answering to identify the proceedings
giving rise to the settlement agreement. In fact, one gleans from the replying
affidavit that whilst the first respondent pushed the applicant for payment, the
dispute did not go as far as the institution of legal proceedings in a competent
court.
14. Counsel for the applicant conceded in argument that he “ could not take the
matter any further” on the facts. He nevertheless argued that the settlement
agreement resolved a dispute between the applicant and the first respondent,
and that “dispute” should be interpreted widely to encompass situations
where the parties had not yet ventured into litigation , but were contemplating
litigation. This is so because (as I understand the argument) in Eke v
Parsons the Constitutional Court stated that the settlement agreement must
relate either directly or “indirectly” to an “issue” or lis between the parties.
15. Counsel contended that the Constitut ional Court in Eke v Parsons confirmed
in paragraph 25 of its judgment, quoted above, only a portion of what was
stated in Ex parte Le Grange and another: In re Le Grange v Le Grange, 4
namely that a settlement agreement must “ relate directly or indirectly to an
4 [2013] ZAECGHC 75 para 15, also reported in the South African law reports as PL v YL 2013
(6) SA 28 (ECG) : “ … the court must satisfy itself that the parties are in agreement that the
terms of their settlement be made part of the order of the court. … i t must be competent for
the court to make the settlement agreement an order. That is, it must relate directly or
indirectly to an issue or lis between the parties that is properly before the court, and in
respect whereof, but for the settlement agreement, it would possess the necessary
jurisdiction to entertain it.”
issue or lis between the parties ”. Thus, so the argument went, the
Constitutional Court left the door open for counsel’s suggested wide
interpretation of the point at which the settlement agreement is concluded. He
could not explain, when asked by the court, where the line would be drawn as
to the point during negotiations at which litigation would be “contemplated”.
16. The applicant’s submission s are unsustainable. The opinion expressed in
Eke v Parsons (and the judgments that followed it) is, with resp ect, sound,
and is the author itative law. This court is bound to apply it. It has no
discretion to do otherwise. I fail to see how the Constitutional Court’s
quotation of an extract from Le Grange, in the context of a discussion of what
are establish ed principles, could result in the open door for which counsel
contends. It is in any event clear from the judgments that followed Eke v
Parsons that the established principles remain unaffected.
17. In the circumstances, the applicant and the first respondent’s settlement
agreement, concluded outside of litigation pending between those parties ,
cannot be made an order of court.
Transfer of the interdict application to another Division
18. Sections 21(1) and 21(2) of the Superior Courts Act 10 of 2013 (the SCA Act)
provide as follows:5
(1) A Division has jurisdiction over all persons residing or being in, and in relation to
all causes arising and all offences triable within, its area of jurisdiction and all
other matters of which it may according to law take cognisance …
(2) A Division also has jurisdiction over any person residing or being outside its area
of jurisdiction who is joined as a party to any cause in relation to which such
court has jurisdiction or who in terms of a third party notice becomes a party to
such a cause, if the said person resides or is within the area of jurisdiction of any
other Division.
5 My emphasis.
19. I have indicated that the parties are in agreement that this court lacks the
jurisdiction to determine the application for interim interdictory relief against
the second respondent. This is undoubtedly correct.
20. The second respondent is squarely located in Gqeberha, and no part of the
contractual cause of action relied upon by the applicant as against the
second respondent took place in the Western Cape, wit hin the jurisdiction of
this court. Section 21(1) of the SC Act therefore does not assist the
applicant. The dispute between the applicant and the second respondent is
not related to the applicant’s cause against the first respondent , as the
second respondent is not a party to the settlement agreement (which was
concluded in George). The second respondent has not been joined to the
proceedings by way of a third party notice. There is no nexus between the
attempt at making the settlement agreement an ord er of court, and seeking
interdictory relief against the second respondent. There is thus no underlying
cause between the applicant and the second respondent relative to this
court’s jurisdiction. It follows that section 21(2) of the SC Act also cannot
come to the applicant’s rescue.
21. Section 27 of the SC Act provides as follows:6
Removal of proceedings from one Division to another or from one seat to
another in same Division
(1) If any proceedings have been instituted in a Division or at a seat of a Divisio n,
and it appears to the court that such proceedings —
(a) should have been instituted in another Division or at another seat of that
Division; or
(b) would be more conveniently or more appropriately heard or determined —
(i) at another seat of that Division; or
(ii) by another Division,
that court may, upon application by any party thereto and after hearing all other
parties thereto, order such proceedings to be removed to that other Division or
seat, as the case may be.
6 My emphasis.
(2) An order for removal under subsection (1) must be transmitted to the registrar of
the court to which the removal is ordered, and upon the receipt of such order that
court may hear and determine the proceedings in question.
22. Section 27 of the SC Act replaced section 9 of the now repealed Supreme
Court Act 59 of 1959, which provided for the removal of civil proceedings
from one High Court to another upon application by any party if such
proceedings could be more conveniently heard by the other court. Section 27
was foreshadowed by section 3 of the I nterim Rationalisation of Jurisdiction
of High Courts Act 41 of 2001 (now repealed) which contained a similar
provision but added another ground for removal, namely that the proceedings
should have been instituted in another High Court. Section 27 of the SC Act
substantially replicates the provisions of section of the Interim Rationalisation
of Jurisdiction of High Courts Act.7
23. Section 27(1)(a) does not require that this court must have jurisdiction before
it can transfer proceedings to another court:8
“[17] …It, in my view, is apparent from the wording of s 3(1)(a) of the Act 9 that it
envisages the removal of civil proceedings which have been instituted in a Court
other than one in which it should have been instituted (ie one without jurisdiction) to
another Court where it should have been instituted (ie one with jurisdiction). In my
view that subsection, at least by clear implication, empowers a High Court which
does not enjoy jurisdiction to order the removal of any civil proceedings before it to
another Court which enjoys jurisdiction and in that manner brought about a pro
tanto statutory amplification of the jurisdiction of High Courts.”
24. Counsel for the second respondent did not oppose the application for a
transfer very strenuously. He nevertheless submitted that the applicant
should have brought a substantive application, on notice, to seek such
should have brought a substantive application, on notice, to seek such
7 See the discussion in Van Loggerenberg Erasmus Superior Court Practice (Jutastat online
version, RS 5, 2025) at D -248ff; Cilliers et al Herbst ein & van Winse n The Civil Practice of
the High Courts of South Africa (5ed, Juta, 2009) at Vol. 1 p 774.
8 Gumede v Road Accident Fund 2007 (6) SA 304 (C) para 17.
9 The Interim Rationalisation of Jurisdiction of High Courts Act 41 of 2001.
transfer. I agree that that is the general route to follow. 10 I can, however, not
see that there is any significant prejudice to the second respondent if I
entertain the oral application from the bar.11 The second respondent had
raised this court’s lack of jurisdiction in its answering papers, and the
possibility of transfer was fully argued even though it was only raised at the
outset of oral argument . Applications for postponements, amendments to
pleadings, and other interlocutory rulings are often requested in this manner,
perhaps less frequently these days as patterns of practice have changed over
the years, but it nonetheless remains possible.
25. Counsel for the second respondent argued further that there is no point in
transferring the matter to another court, as the applicant’s prospects of
success in obtaining the interdictory relief sought are remote. Whatever my
views are on the merits of the interdict application, I do not think that that is a
factor that should (or can) be taken into account in relation to a transfer under
section 27(1)(a). This court does not have any jurisdiction to determine the
merits of the application. It would be illogical f or it to have the power to
express an opinion on the prospects of success in considering whether to
order a transfer. As stated in Road Accident Fund v Rampukar; Road
Accident Fund v Gumede:12
“[10] As I see it, s 3(1)(a), 13 on its own wording, deals with the situation where the
proceedings should have been instituted in 'the other court', ie the transferee court.
This can only mean that they should not have been instituted in the court where they
were in fact instituted, ie the transferring court. … in the context of an Act dealing
with jurisdiction, the only reason I can think of is that the transferring court lacked
jurisdiction to determine the dispute between the parties under s 19(1) of the
Supreme Court Act. In these circumstances, s 3(1)(a) does not bestow the
10 Erasmus op cit at D-254A.
10 Erasmus op cit at D-254A.
11 See, for example, the reference in Era smus op cit fn 46 to Ntambo v President of the
Republic of South Africa (unreported decision of the Gauteng Division of the High Court
under case number 51179/2021, dated 10 March 2023) which held at para 32 that section 27
of the SC Act does not require a substantive application, and that an application moved from
the bar pursuant to the issue of removal of the case to another Division of the High Court
having been raised in the answering affidavit as a point in limine, met the requirement of the
subsection.
12 2008 (2) SA 534 (SCA) para 10. My emphasis.
13 Of the the Interim Rationalisation of Jurisdiction of High Courts Act 41 of 2001.
transferring court with jurisdiction to entertain and decide the main dispute; all the
section does is to afford the transferring court the limited jurisdiction - which
otherwise it would not have had - to transfer the matter to the 'right' cour t, ie the
court with proper jurisdiction to determine the dispute under s 19(1) of the Supreme
Court Act. Thus understood, I think the situation that s 3(1)(a) seeks to address is
obvious. It is the one where a plaintiff has wrongly instituted proceedings in the
transferring court instead of the transferee court and now seeks a transfer from the
former to the latter.”
26. The position is obviously different where a transfer under section 27(1)(b) of
the SCA Act is sought, because in such a case a court may tak e into account
various factors to determine the aspect of convenience, and whether a
transfer should, in the exercise of the court’s discretion in that context , be
ordered.14
27. In these circumstances, the appropriate route is to transfer the remainder of
the application – the application for interdictory relief – to the court with the
necessary jurisdiction to hear it.
Costs
28. I regard the second respondent as having been substantially successful up to
this point in the proceedings. There is no need for anot her court to have to
consider the arguments that served before me, in order to come to a decision
on costs at the end of the matter. I therefore intend to grant the second
respondent its costs up to the date upon which the application was argued
before me. Counsel’s fees will be taxed on Scale B, as contemplated in Rule
67A, read with Rulle 69.
Order
29. In the premises it is ordered as follows:
14 Nongovu NO v Road Accident Fund 2007 (1) SA 59 (T) at 64H–65J.
1. The applicant’s application, as set out in paragraph 2.1 of the notice
of motion dated 17 April 2026, to have th e settlement agreement
concluded between it and the first respondent on 20 March 2026
made an order of court, is dismissed.
2. The applicant’s application for interdictory relief , as set out in
paragraphs 2.2 to 2.4, read with paragraph 3, of the notice of motion
dated 17 April 2026, is transferr ed to the High Court (Eastern Cape
Division, Gqeberha) for determination, pursuant to the provisions of
section 27(1)(a), read with section 27(2), of the Superior Courts Act
10 of 2013.
3. The applicant shall pay the se cond respondent’s costs up to and
including the date of the hearing of this application on 4 August
2026, including counsel’s fees taxed on Scale B.
_____________________
P. S. VAN ZYL
Judge of the High Court
Appearances:
For the applicant: Mr C. E. Thompson
Instructed by: W J Bezuidenhout Inc.
For the second respondent: Mr I. Lambrechts
Instructed by: McWilliams & Elliot Inc.