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SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in
compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
MPUMALANGA DIVISION, MBOMBELA (MAIN SEAT)
Case No.: 2026-112725
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED NO
DATE 21 August 2026
SIGNATURE
In the matter between:
HENNY HERRAH SAMBO FIRST APPLICANT
MOKOENA DANIEL SECOND APPLICANT
DLAMINI NCAMSILE PRECIOUS THIRD APPLICANT
and
THE REGISTRAR OF COMMUNAL FIRST RESPONDENT
PROPERTY ASSOCIATION
2
THE DIRECTOR GENERAL LAND SECOND RESPONDENT
REFORM AND RURAL DEVELOPMENT
THE CHIEF DIRECTOR LAND REFORM THIRD RESPONDENT
AND RURAL DEVELOPMENT
THE DEPARTMENT OF RURAL FOURTH RESPONDENT
DEVELOPMENT AND LAND REFORM
THE REGISTRAR OF DEEDS FIFTH RESPONDENT
MPUMALANGA
EVAH SIMANGELE MKHATSHWA SIXTH RESPONDENT
KHULILE MKHATSHWA SEVENTH RESPONDENT
JUDAS MAKHUBELA EIGHTH RESPONDENT
JEREMIAH MKHATSHWA NINTH RESPONDENT
KHULEKILE MERICA MOKOENA TENTH RESPONDENT
THOKO MABUYA ELEVENTH RESPONDENT
CLEMENT CEKO TWELTH RESPONDENT
MTHOMBISI MASHABANE THIRTEENTH RESPONDENT
THANDEKA KHOZA FOURTEENTH RESPONDENT
3
BONGANI GODFREY MKHATSHWA FIFTEENTH RESPONDENT
MAWEWE COMMUNAL PROPERTY SIXTEENTH RESPONDENT
ASSOCIATION
AFRICAN SUNRISE (PTY) LTD SEVENTEENTH RESPONDENT
LAMBOKAZI HOLDING (PTY) LTD EIGHTEENTH RESPONDENT
ABSA BANK NINETEENTH RESPONDENT
THE SOUTH AFRICAN POLICE TWENTIETH RESPONDENT
SERVICES
THE DIRECTORATE OF PRIORITY TWENTY-FIRST RESPONDENT
CRIMES INVESTIGATIONS
________________________________________________________________
JUDGMENT
________________________________________________________________
FOURIE AJ:
INTRODUCTION:
[1] The Applicants before this Court were the successful Applicants before
the Court when Mangena AJ delivered Judgment in their favour on 12
June 2026.
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[2] In the Judgment granted by Mangena AJ on the aforesaid date, certain
relief was granted pending, as per Prayer 2 of the aforesaid Order,
certain ancillary steps to be taken. Paragraph 2 of the Mangena AJ
Judgment specifically states that:
‘[2]. The relief they seek in Part B is consequential to the outcome of the
forensic investigation and the taking of remedial action in line with
the Constitution of the MCPA’.
[3] When the application was initially brought, it was predicated on three
portions of relief sought, in essence being:
a). Declaratory relief under the auspices of Section 18(2) of
the Supreme Courts Act, 10 of 2023 (hereinafter “the
SCA”).
b). Alternatively, to Prayer 1, relief under the auspices of
Section 18(3) of the SCA, and
c). An Order placing the Registrar in contempt of Court for its
non-compliance with the Order of 12 June 2026.
[4] To be thorough, the Order of Mangena AJ indicated that:
‘2. Pending further proceedings in Part B to be enrolled by the Applicants
not more than 120 days from the execution of this Order, it is ordered
that:
2.1. The sixth, seventh, eighth, ninth, tenth, eleventh, twelfth,
thirteenth, fourteenth, and fifteenth respondents are immediately
interdicted and prohibited and restrained from:
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1.1.1. administrating the affairs of the sixteenth respondent;
1.1.2. controlling, accessing or operating the Mawewe
Communal Property Association bank accounts held
at ABSA Bank under Account Number: 4[...];
1.1.3. entering into or purporting to enter into any
transactions, arrangements, or contracts on behalf of
Mawewe Communal Property Association
2. The seventh respondent is interdicted and restrained from alienating,
transferring or encumbering the immovable property described as ERF
3[...] M[...] Extension 35 Township, Registration Division JT,
Mpumalanga and held by deed of transfer T 6806/2023 pending
finalisation of Part B of the application.
3. The seventeenth respondent (African Sunrise (Pty) Ltd) is interdicted
and restrained from alienating, transferring or encumbering the
immovable property described as Portion 372 (A portion of portion
74) of the farm 375 Rietfontein JR, Pretoria held under title deed
number
T 02386/2024.
4. The Registrar of Communal Property Associations is ordered to
appoint a suitably qualified independent forensic investigator, within
90 days from the date of this order, to conduct an investigation into
the financial affairs of Mawewe Communal Property Association for
the period March 2021 to May 2026. The appointed investigator shall
submit a report to this court within 120 days from the date of
appointment by the Registrar.
5. The Registrar is further ordered to immediately appoint a new interim
committee to manage the affairs of Mawewe Communal Property
Association pending finalisation of part B of this application.
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6. All the respondents who opposed the application, except the sixteenth
respondent, are ordered to pay jointly and severally the applicants'
costs on a party and party scale, including the costs of one senior
counsel, where one is employed.”
[5] Prior to the commencement of the proceedings, which was set down on
the Urgent Roll of this Court of 18 August 2026, the Applicants
indicated that they have abandoned their relief as sought in respect of the
Contempt of Court proceedings.
[6] During argument , it was further conceded by the Applicant’s legal
representatives that they no longer rely on the relief sought under Section
18(2) of the SCA, namely the declaratory relief.
[7] The essence of the issues on which this Court ultimately needs to decide
accordingly turns on the applicability of Section 18(3) of the SCA, and
whether the Applicants have met the jurisdictional requirements and
threshold for relief to be granted in terms thereof.
[8] The urgent application is opposed by the same groups of Respondents
that opposed the initial interdict application, who are grouped together as
follows:
a). The First, Second, Third and Fourth Respondents;
b). The Sixth, Seventh, Eleventh and Twelfth Respondents; and
c). The Eighth, Ninth, Tenth, Thirteenth and Fourteenth Respondents.
[9] As was the case in the initial interdict application, the remaining
Respondents do not oppose the relief sought by the Applicants herein.
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BACKGROUND:
[10] It is highly irrelevant to what follows to indicate that, as at the time of
the current application, the parties are awaiting being heard by Mangena
AJ in an application for leave to appeal brought by the respective
Respondents against the Order of 12 June 2026.
[11] The principles on which the application for leave to appeal is grounded,
although highly relevant to the ultimate finalisation of the matter, will,
for reasons as are highlighted hereinafter, not be dealt with in depth by
this Court.
[12] If either of the parties expects this Court to adjudicate on any of the
matters that serve before this Court in less than a week’s time in order to
utilise the findings of this Court in any way or form or attempt to utilise
the findings of this Court in any way or form to attempt to pursue the
Court ultimately hearing the application for leave to appeal, same would
amount to nothing less than an abuse of Court process.
[13] The Respondents specifically complain about the timing of the current
application under circumstances where the application for leave to
appeal is set down in less than a week’s time. The Respondents
complain that the Applicants indicated they were unavailable to deal
with the application for leave to appeal at an earlier stage, although the
application had already been brought by the respective Respondents in
early July 2026.
[14] The Respondents complained that it is only after the matter has finally
been enrolled that they are confronted by the Applicants with the current
application.
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URGENCY:
[15] Prior to dealing with the merits of the matter, the Court was necessitated
to evaluate whether it ought to deal with the matter on the urgent Court
roll.
[16] A litigant who approaches Court for leave on an urgent basis must
comply with Rule 6(12)(b) of the Uniform Rules of Court. The Rule
reads as follows:
“In every affidavit of petition filed in support of any application under paragraph
(a) of this sub rule, the Applicant shall set forth explicitly the circumstances
which he avers render the matter urgent and the reason why he claims that he
could not be afforded substantial redress at a hearing in due course.”
[17] The importance hereof is that the procedure set out in Rule 6(12) is not
merely for the taking. An Applicant must explicitly set forth the
circumstances he avers render the matter urgent. More importantly, the
Applicant must state the reasons why it claims that it cannot be afforded
substantial redress at a hearing in due course. The question of whether a
matter is sufficiently urgent to be enrolled and heard as an urgent
application is underpinned by the issue of absence of substantial redress
in an application in due course. The Rules allow the Court to come to
the assistance of a litigant because if the latter were to wait for a normal
course to be laid down by the Rules , it would not obtain substantial
redress. It is important to note that the Rule requires the absence of
substantial redress. This is not equivalent to the irreparable harm that is
required before the granting of an interim relief. It is something less. He
may still obtain redress in an application in due course, but it may not be
substantial. Whether an Applicant will not be able to obtain substantial
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redress in an application in due course will be determined by the facts of
each case. An Applicant must make out its case in this regard1.
[18] Thus, two requirements must be set forth in the Founding Affidavit to
satisfy the Rule2. Whether an Applicant has succeeded in satisfying the
requirements for urgency must be determined from the contents of the
Founding Affidavit3.
[19] In Luna Meubelvervaardigers (Pty) Ltd v Makin & Another 4 Coetzee J
held with reference to Rule 6(12)(b) the following:
“Mere lip service to the requirement of Rule 6(12)(b) will not do , and an
Applicant must make out a case in the Founding Affidavit to justify the particular
extent of the departure from the norm which is involved in the time and day for
which the matter be set down.”
[20] The test, insofar as it relates to urgency, remains, at its core, whether, if
the Court does not deal with the matter at this juncture and allows the
matter to be heard in the normal course, the Applicant will be able to
obtain substantial redress. Substantial redress will depend on the facts of
each specific matter5.
[21] In the matter of Witbank Taxi Association, supra, the Court found it
necessary to expressly deal with what is ultimately meant by substantial
redress, where the Court stated that:
‘Unfortunately, both litigants and the general public fail to appreciate what is
actually meant and what ought to be proven by the test to evaluate whether
substantial redress would be forthcoming if the matter is not heard in the
manner as set down by the Applicant in an urgent application.’
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[22] Applicants frequently insert the phrase:
‘The Applicant will not be able to obtain substantial redress in due course if the
matter is not heard on the Urgent Court Roll’
Absent such an averment, Respondents, when opposing urgent
applications, frequently insert the phrase:
‘The Applicant has failed to allege that substantial redress in due course will
not be forthcoming if the matter is not heard on the current Urgent Court Roll.’
[23] Neither of the aforesaid sentiments ought to find any place in the
litigious framework of an urgent application. To scrutinise founding or
answering papers in search of specific words that would serve as a
proverbial tick -box is a formalistic and outdated manner of evaluating
compliance with the litigious process.
[24] I am of the view that, even in the absence of a specific mention of the
phrase “substantial redress” if the facts as alleged by the Applicant in its
founding papers set up a premise which, if ultimately tested and proven
is proven to be the truth, and will lead to an Applicant invariable not
obtaining substantial redress if the matter was not dealt with on the day
as set down, the Applicant would have complied with his obligations in
this regard.
[25] The safeguard built in by the Uniform Rules of Court to protect against
abuse of Court process, and what is commonly referred to as a jumping
of the queue, is to protect against the following:
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a). A Respondent being able to properly present the opposition
they would otherwise have wanted to if they had sufficient
time to present their opposition to the application.
b). The Court being inconvenienced both in its preparation time
and the information at its disposal to come to an adequate
decision.
c). Litigants taking up valuable judicial resources which could
have and should have been allocated to matters that patiently
waited in line , which is now forced on the back -burner by an
Applicant that forced in a matter that could have and should
have been dealt with at either an earlier or later time.
[26] When evaluating whether a party could ultimately obtain substantial
redress, the starting point ought to generally be found in the relief sought
by such a party. A basic evaluation of the prayers in a Notice of Motion
ought to be indicative of whether a matter is truly principled on urgency
or not. Following this approach, a court will evaluate whether the
urgency was self -created or, when applying the principles of Luna
Meubelvervaardigers, supra, the timeframes set out in the application
align with the chosen urgency of the matter.
[27] A matter can accordingly be urgent but still fall foul of being heard by
the Court on the urgent roll because the urgency was self-created or the
manner of approach to Court was found to be unreasonable given the
facts of the matter.
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[28] Ultimately this Court was called upon to decide whether the Applicants’
Section 18(3) application ought to be entertained on the urgent roll. The
essence of the relief the Applicants seek is that the Court Order granted
by Mangena AJ is not suspended pending the finalisation of the appeal
process.
[29] If the Court decides not to adjudicate the matter at the current juncture, it
is a reasonable inference to be drawn that the matter will proceed on the
normal roll approximately one calendar year from the date hereof, by
which time the appeal process would in all likelihood have been
concluded. Accordingly, the relief sought in the Notice of Motion will
in all likelihood have become moot by that stage.
[30] The Court initially hearing the application found same to be urgent and
although there has been some lapse of time until the current application
is brought, to reason, as the Respondents have, that the matter is not
urgent and could stand over for later adjudication makes no practical
sense.
[31] It is for the aforesaid reasons that the Court was satisfied that the
application in as far as it was to deal with Section 18(3) of the SCA was
sufficiently urgent.
[32] At the hearing of the matter the Court indicated its displeasure with the
state of the Applicants’ bundles as filed.
[33] In general, this Court agrees that an Applicant who brings his matter to
Court on the urgent roll should ensure that his papers are in an
impeccable state as to make it as easy as possible for the Court that
ultimately deals with the matter to evaluate such a matter in curtailed
time frames . There are, however, circumstances that may permit a
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deviation from this principle, and in deserving cases , this is an aspect in
which the Court needs to take a practical and logical approach, as the
interest of justice might necessitate a deviation from this norm from time
to time.
[34] Under appropriate circumstances, a Court, such as this one, might
condone the state of a litigant’s papers, but take the same into
consideration when ultimately dealing with the costs of an application.
APPLICABLE LEGAL PRINCIPLES:
[35] The relevant provisions of the SCA state that:
‘18. Suspension of decision pending appeal
(1) Subject to subsections (2) and (3), and unless the court under exceptional
circumstances orders otherwise, the operation and execution of a decision
which is the subject of an application for leave to appeal or of an appeal, is
suspended pending the decision of the application or appeal.
(2) Subject to subsection (3), unless the court under exceptional circumstances
orders otherwise, the operation and execution of a decision that is an
interlocutory order not having the effect of a final judgment, which is the
subject of an application for leave to appeal or of an appeal, is not
suspended pending the decision of the application or appeal.
(3) A court may only order otherwise as contemplated in subsection (1) or (2),
if the party who applied to the court to order otherwise, in addition proves
on a balance of probabilities that he or she will suffer irreparable harm if the
court does not so order and that the other party will not suffer irreparable
harm if the court so orders.’
[36] A significant portion of the respective bundles filed by the respective
parties relates to whether the Judgment by Mangena AJ could and should
be regarded as an Interim Order or a Final Order.
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[37] In the matter at hand, it is significant to determine whether the relief
granted by Mangena AJ was of a temporary or final nature. The reason
for the aforesaid is that the nature of the relief granted by Mangena AJ
will determine the procedure to determine the right of execution, or not,
pending the finalisation of the appeal.
[38] If the relief granted by Mangena AJ is ultimately found to be interim in
nature, then the provisions of Section 18(2) of the SCA find application.
[39] If Section 18(2) of the SCA finds application, the burden of proof shifts
to the Respondents in the current application, the Applicant in the
application for leave to appeal or the Appellant in the appeal , as the case
may be, to prove exceptional circumstances as to why the operation and
execution of the interim order ought to be suspended pending the
finalisation of the appeal process.
[40] The Applicant in whose favour the initial Interim Order was granted has
no burden to seek declaratory relief, as the Applicants initially attempted
in this Court , to prove their right to execute on an order that has been
granted on an interim basis. The general legal position is that interim
Court Orders stand and must be executed unless suspended by a Court
under Section 18(2) of the SCA.
[41] An application to suspend an interim order will generally be brought by
the Appellant in an appeal or the Applicant in an application for leave to
appeal, as it is such a party who seeks a change in the legal position.
[42] If the Applicants in the current application wanted any sort of
declaratory relief to clarify the legal position between the parties, then
such relief in the Notice of Motion ought to have expressly entailed a
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request for the Court to determine whether the Order of Mangena AJ
ought to be regarded as interim or final.
[43] I hasten to say that this Court will not pronounce on whether or not a
Court would have entertained such a request at this stage in proceedings ,
seeing that the same question will in all probability confront the Court
hearing the application for leave to appeal or ultimately the appeal as the
case may be, but it would be relief aimed at clarifying an existing, future
or contingent right or obligation6.
[44] The manner in which the Applicant, however phrased the relief as sought
would have, in any event, and even if such relief was not abandoned by
the Applicant, precluded the Court from dealing with this question.
[45] As stated supra, Section 18(2) of the SCA deals with appeals to interim
orders whereas Section 18(3) of the SCA deals with appeals against final
orders.
[46] The only way in which the Applicants would accordingly be necessitated
to make an application under Section 18(3) of the SCA would be if it is
determined that the relief sought was final in nature as, once it is proven
that the relief sought is final in nature, it would be necessary for the
Applicants to prove exceptional circumstances, and irreparable harm on
their part, and the lack of irreparable harm on the part of the
Respondents that necessitate a deviation from the norm, that being the
suspension of Court Orders where an appeal process to such orders are
pending.
[47] The difficulty confronting the Applicants in the current matter , however,
is that the Applicants, in their founding papers, expressly state their firm
belief that the Order granted by Mangena AJ is interim in nature and not
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final. The Applicants further state that this will be one of the crucial legs
on which their opposition to the application for leave to appeal
ultimately rests when the matter is heard in the coming days.
[48] Accordingly, if the Applicants believe that the Order of Mangena AJ is
interim in nature, such would preclude the Applicants from bringing an
application under the auspices of Section 18(3) of the SCA under
circumstances where such an application would simply not be necessary
as the legal position would favour the Applicants and, on the Applicants
version it would have been necessary for the Respondents to proceed
with an application under Section 18(2) if they had wished to suspend
the operation of the Mangena AJ Order.
[49] Peculiarly, the relief the Applicants sought, which could have possibly
aided the Applicants in the relief it seems they ultimately seek, vested in
the prayers the Applicants abandoned, being the contempt of Court
process, if they were able to prove same, alternatively in seeking
clarification on the nature of the Mangena AJ relief, being either interim
or final.
[50] Once the Applicants elect to regard the Mangena AJ as interim, the
procedure as set out in Section 18(3) of the SCA becomes irrelevant.
[51] The only way in which this Court will entertain the application under the
auspices of Section 18 (3) is if this Court makes a determination on the
nature of the relief granted by Mangena AJ, a question this Court is not
requested to answer, and given the close proximity to the leave to appeal
application which the Court would in any event have had difficulty to
entertain as to not influence the Court during the application for leave to
appeal with this Court’s views and further as to not determine issues
already serving before this Court in a different forum.
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[52] Irrespective of the manner in which the relief sought by the Applicant is
phrased, a material dispute of fact exists between the respective parties
in that it is evident the Applicants believe the relief of Mangena AJ to be
interim in nature, and the respective Respondents who harbour the firm
view that the relief granted by Mangena AJ to have final effect.
[53] If the respective parties were in agreement on this point, it would have
indicated the route to be taken either by the Respondents under Section
18(2) of the SCA or by the Applicants under Section 18(3) of the SCA.
[54] In so far as the relief sought herein is subject to the principles of the
Plascon-Evans test 7, the circumstances where the Applicant, stating the
matter to be dealing with interim relief and the Respondents stating the
matter to deal with final relief which, if followed, would lead to the
bizarre notion that the Applicant would have erroneously so elected to
proceed under the auspices of Section 18(3) of the SCA and with the
submissions the Applicants make in their papers they would not be
entitled to such relief but if regard is had to the submissions made in the
Respondents’ papers i t would bring the matter within the ambit of
Section 18(3) of the SCA which would then, by virtue of some sequence
of events that neither of the parties could have foreseen bring the matter
back into the ambit of Section 18(3) of the SCA.
[55] Fortunately, this Court has not been requested to decipher or address this
anomaly, and the Court need only evaluate whether the Applicants have
met the threshold for what they aim to achieve in their application.
[56] Principled on their own factual allegations, the application in its current
form was unnecessary, and while relief phrased in different terms might
be available to the Applicants, the matter that was brought to Court
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stands to be dismissed as the relief sought and the submissions made in
the founding papers are irreconcilable with one another.
[57] For this reason, the Applicants’ application cannot succeed.
COSTS:
[58] It was argued by the Respondents, and to a great degree conceded by the
Applicants, that the fact that the Applicants abandoned significant
portions of their relief sought, and evaluated together with the disorderly
manner in which the Applicants’ bundles were ultimately presented to
the parties and to the Court , would have an impact on the Order the
Court ultimately makes in respect of costs.
[59] It should be noted that the Court, in coming to the conclusion it does,
does not deal at all with the merits of the application or many of the
submissions made by either the Applicants or the Respondents.
[60] As much as the Applicants misinterpreted the principles on which the
Application was to be brought, none of the principles on which the Court
ultimately finds in respect of the matter was highlighted or presented to
the Court by any of the Respondents.
[61] The Court can, under the circumstances, however, not disregard the fact
that the Respondents were brought to Court with significant portions of
the relief sought against them ultimately not persisted with, under
circumstances where the Applicants’ papers were presented to the Court
and the respective parties in a less than satisfactory manner.
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[62] Having found that the application was unnecessary and premised on
incorrect legal principles, I find no reason why the Applicants ought not
to pay the costs occasioned due to the current application. I am ,
however, not persuaded by the submissions made by the Respondents
that the costs ought to attract a punitive scale.
ORDER:
[63] For the aforesaid reasons, the following Order is made:
[63.1] The relief as persisted with by the Applicants pr edicated on
Section 18(3) of the Superior Courts Act, 10 of 2013, is
found to be urgent and dealt with as such in accordance with
Rule 6(12) of the Uniform Rules of Court.
[63.2.] The Applicants’ application is dismissed.
[63.3.] The Applicants shall pay the Respondents’ costs, jointly and
severally, the one to pay the other to be absolved, on a party -
and party scale.
_____________________________________
HF FOURIE
ACTING JUDGE OF THE HIGH COURT,
MPUMALANGA DIVISION
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Attorneys for the Applicants:
CHAUKE AND MAZIBUKO ATTORNEYS
Email: info@chaukemazibuko.co.za
Telephone: 067 272 6847
Counsel for the Applicants: ADV MOLOTSI SC
Contact Number: 0650528 9144
Attorneys for the 1st – 4th Respondents:
TH MATHEBULA INC
Email: info@thminc.co.za
Telephone: 076 1633 178
Counsel for the 1st – 4th Respondents: ADV B SHABALALA AND
ADV T VUKEYA
Contact Number: 083 974 7489 / 079 934 1077
Attorneys for the 6th, 7th, 11th and 12th Respondents:
MURPHY KEAPE MARITZ
ATTORNEYS
Email: helga@mkmattorneys.co.za
Telephone: 012 362 1958
Counsel for the 6th, 7th, 11th and 12th Respondents: ADV AR COETSEE
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Attorneys for the 8th, 9th, 10th, 13th, 14th, and 16th Respondents:
COETSEE ATTORNEYS
Email: ghc@coetseeatt.co.za
Telephone: 012 329 9669
Counsel for the 8th, 9th, 10th, 13th, 14th, and 16th Respondents: ADV KRIEL
Date of hearing: 18 August 2026
Date of Judgment: 21 August 2026
1 Eastrock Trading 7 (Pty) Ltd & Another v Eagle Valley Granite (Pty) Ltd & Others (11133767) [2011]
ZAGPJHC 196 (23 September 2011)
2 Salt & Another v Smith 1991 (2) SA 186 (NM) at 197 A
3 Il & B Marcow Caterers v Greatermans SA 1981 (4) SA 108 (C) at 111 A
4 Setlogelo v Setlogelo 1914 AD 221
22
5 Witbank Taxi A ssociation v Local Taxi Association and Another (2026 -069702) [2026] ZAMPMHC 15 (9
April 2026)
6 Gensinger & Neave CC and Others v Minister of Mineral Resources and Energy and Others 2015 (4) SA 84
(SCA) at para 31
7 Plascon-Evans Paints (TVL) Ltd. v Van Riebeck Paints (Pty) Ltd. (53/84) [1984] ZASCA 51; [1984] 2 All SA
366 (A); 1984 (3) SA 623; 1984 (3) SA 620 (21 May 1984)