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IN THE HIGH COURT OF SOUTH AFRICA
NORTH WEST DIVISION, MAHIKENG
CASE NO: 3977/2025
In the matter between:
LESEDI LA BOTSHABELO MINING
SUPPORT SERVICES (PTY) LTD
And
OKAYENG TRADING AND PROJECTS
(PTY) LTD
RITTAH MMADITSHIDI
STATION COMMISSIONER:
COMMANDER,SOUTH AFRICAN
POLICE SERVICE: PHOKENG
Date heard: 14 May 2026
Delivered: 26 August 2026
Coram: Reddy J
APPLICANT
FIRST RESPONDENT
SECOND RESPONDENT
THIRD RESPONDENT
Summary: Objection to the enrolment of an opposed application- grounded in
the applicant's failure to file heads of argwnent for the hearing date- the absence
of any application for condonation- non-compliance is found to be material and
unexplained- forms part of a broader pattern of procedural default in related
litigation between the same parties- point in limine is upheld- section 34 of the
Constitution and the litigation history between the parties- application is
postponed, on strict condition rather than struck from the roll or postponed sine
die- costs are awarded against the applicant on the scale as between attorney and
client.
JUDGMENT
REDDY J
Introduction
[ 1] This matter does not serve before me for the determination of the interim
interdict sought by the applicant. The issue that now arises is a point in limine, an
objection to enrolment of the application as advanced by the first and second
respondents. The respondents contend that the application, enrolled for hearing
as an opposed motion on 14 May 2026, is not ripe for hearing. The basis for that
contention is the applicant's material and substantia l non-compliance with the
Practice Directives of this Division governing opposed motion proceedin gs.
The parties
[2] The parties may conveniently be described at this stage. The applicant is
Lesedi La Botshabelo Mining Support Services (Pty) Ltd (Lesedi), a private
company registered in terms of the company laws of the Repub lic of South Africa.
The first respondent is Okayeng Trading and Projects (Pty) Ltd (Okayeng). The
second respondent is Ms Rittah Mmaditshidi (Mmaditshidi), cited as Okayeng's
director or authorised representative. The third respondent is the Station
Commissioner: Commander, South African Police Service: Phokeng (the
Commissioner), cited nominally in an official capacity. The Commissioner
refrained from participating in the contest.
Background facts
[3] Lesedi conducts business in chrome processing. It constructed a chrome
washing plant on the Rietvlei property, referred to in this application as the
Chrome Wash Plant. During 2024, Lesedi approached Mmaditshidi for funding
to assist with the plant's construction. That funding, ultimately quantified at R3
000 000 was advanced in tranches.
[ 4] The parties thereafter concluded what is described as the Liability
Agreement, executed during April and May 2025, recording Lesedi's
acknowledgement of liability for the funding advanced. A dispute has since arisen
as to the interpretation of the repayment and forfeiture provisions of that
agreement. It culminated in Okayeng and Mmaditshidi asserting operational and
administrative rights over the Chrome Wash Plant, which prompted Lesedi to
launch the present application. What needs to be underscored is that the merits
are to be detem1ined at a hearing in due course. It is logical to deduce that the
present ruling is confined to the point in limine.
The litigation history
[5] Lesedi has previously approached this Court for relief arising from this
dispute. The litigation history ventilates the following. On 19 September 2025,
Maodi AJ struck the application from the roll for lack of urgency. Costs were
reserved in the cause. On 3 October 2025, Masike AJ again struck the re-enrolled
application from the roll. Each party was directed to pay its own costs on that
occasion.
[ 6] A related dispute has travelled an equally difficult procedural road. Under
case number 5481/2025, arising from the same underlying dispute, Masike AJ
struck a further application from the roll on 17 October 2025 for Lesedi's non-
appearance. Costs were awarded against Lesedi on the scale as between attorney
and client. That matter was removed again on 24 October 2025, to allow Lesedi
to file an affidavit explaining its earlier default, with no order as to costs. It was
removed once more on 31 October 2025, this time for non-compliance with
Practice Directive 27(5). The court directed that it not be re-enrolled absent full
compliance, and again mulcted Lesedi in punitive costs. It is against this backdrop
of repeated procedural default that the present objection falls to be considered.
The current application
[7] The present application was set down for hearing on 14 May 2026, by
notice of set down dated 9 January 2026. Lesedi accordingly had more than four
months' notice of the hearing date. The Practice Directives of this Division require
heads of argument to be delivered not less than fifteen court days before the
hearing. On a proper computation, Lesedi's heads of argument for the 14 May
2026 hearing ought to have been delivered by 21 April 2026.
[8] The heads of argument contained in the bundle were, however, prepared
and filed for the earlier, now defunct, hearing dates of 19 September 2025 and 3
October 2025. No heads of argument were filed or served for the 14 May 2026
hearing. What was instead transmitted, by email on 11 May 2026, three court days
before the hearing, was a document styled 'Applicant's Updated Practice Note'.
That document itself reflects signature only on 8 May 2026.
[9] It identifies the dispute only in general terms. It cites no authorities, and
falls short of the structured submissions which the applicable Practice Directives
require of proper heads of argument. Given this chronology, it was incumbent on
Lesedi to bring an application for condonation of this non-compliance with the
Practice Directives of this Division. Towards this end, no application for
condonation was brought. Additionally, no explanation has been proffered by or
on behalf ofLesedi.
The point in limine
[ 1 O] On 13 May 2026, the respondents delivered a notice of point in limine and
objection to enrolment. In broad strokes, the respondents seek an order striking
the matter from the roll, alternatively postponing it sine die, together with costs
on the attorney and client scale.
Submissions on behalf of the respondents
[11] Mr Ramoshaba submits that Lesedi's default is neither trivial nor
excusable. Mr Ramoshaba points to the absence of any heads of argument
address ing the 14 May 2026 hearing, the belated and non-compliant practice note,
and the absence of any application for condonation. Mr Ramoshaba contends
further that this default cannot be viewed in isolation, forming part of a pattern of
chronic procedural default spanning two case numbers and several hearing dates,
on two of which Lesedi was already mulcted in punitive costs. In the
circumstances, Mr Ramoshaba avers, only a striking from the roll, coupled with
a costs order on the att01ney and client scale, will mark this Court's disapproval
of that pattern.
The applicant's litigation posture
[12] Lesedi has filed no answering affidavit to the objection and no heads of
argument addressing it. No submissions were accordingly advanced on Lesedi's
behalf, whether in opposition to the objection or otherwise. The matter served
before this Court effectively unopposed on the point in limine . Regard has
nonetheless been had to Mr Ramoshaba's affidavit, the respondents' heads of
argument, and the whole of the record, in reaching the conclus ions set out below.
The law on condonation and compliance with Practice Directives
[13] It is settled that the Rules of Court and the Practice Directives issued under
them are not mere technicalities, to be observed or disregarded at a litigant's
convenience. In Federated Trust Ltd v Botha , the following was stated:
' the Rules are not an end in themselves to be observed for their own sake. They are provided
to secure the inexpensive and expeditious completion of litigation before the courts.' 1.
[14] In Coetzer NO and Others v Extrasec Security (Pty) Ltd and Others, the
following was held (footnotes omitted) as regards condonation:
' [1 2] The applicable test that governs condo nation is well established. Condonation is not for
the mere asking. It is a discretionary judicial remedy to be exercised within the prism of the
interests of justice. To this end, in Van Wyk v Unitas Hospital and Another, Off-Beat Holiday
Club and Another v Sanbonani Holiday Spa Shareblock Limited and Others and Grootboom v
National Prosecuting Authority and Another , the apt:x Court reaffirmed that the overarch ing
enquiry is whether the interests of justice favour the relief being granted. In Melane v Sanlam
Insurance Co Ltd, the following factors were identified as considerations relevant to this
enquiry: These include the degree of non-compliance; the explanation therefor; the importance
of the case; the prospects of success on the merits; the respondent 's interests in finality ; the
convenience of the court; and the avoidance of unnecessary delay in the administration of
justice. These considerations are not individually decisive. It axiomatically follows that these
considerations must be weighed holistically within the interests of justice enquiry. '2
[15] Our courts have also consistent ly deprecated litigation conducted by
ambush. In Minister of Land Affairs and Agriculture v D & F Wevell Trust, the
following was stated:
1 Federated Trust ltd v Botha 1978 (3) SA 645 (A) at 654 D.
following was stated:
1 Federated Trust ltd v Botha 1978 (3) SA 645 (A) at 654 D.
2Coetzer NO and Others v E.xtrasec Security (Pty) Ltd and Others [2026] ZAN WI-IC 148; [2026] 3 All SA I 05
(NWM) para 9
' a party cannot be expected to trawl through lengthy annexures to the opponent's affidavit and
to speculate on the possible relevance of facts therein contained. Trial by ambush cannot be
permitted.' 3
[16] A few comments would be apposite as regards the purpose and objects of
heads of argument. Heads of argument serve to identify the issues for
determination , the authorities relied upon, and the submissions to be advanced.
In doing so, they reduce the risk that a party is confronted with a case it has had
no proper opportunity to meet.
Evaluation
[ 17] Juxtaposing these principles to the facts, in my view Lesedi's non
compliance with the Practice Directives is both material and substantial. Lesedi
itself set this matter down more than four months in advance. It nevertheless
failed entirely to deliver heads of argument addressing the hearing actually before
the Court. The belated practice note does not begin to satisfy the function which
heads of argument are designed to serve. It left the respondents , in the days
immediately preceding the hearing, without any indication of the legal basis, the
authorities, or the submission s Lesedi intended to advance.
[ 18] As has been noted, no application for condonation was brought. The papers
are entirely devoid of any justification for the non-compliance with the well
established principles governing condonation. Accordingly , there is no basis upon
which a discretion could be exercised in Lesedi's favour, even had such an
application been made.
3Minister of Land Affair s and Agriculture v D & F Wevell Trust 2008 (2) SA 184 (SCA) para 43.
[ 19] The default does not stand alone. The litigation has been tortuous,
traversing a long and halting road to reach this point. It is, on a conservative
estimate, the fourth or fifth occasion on which Lesedi has approached this Court
in respect of the same underlying dispute, only to founder on procedural default.
On some occasions it was a failure to establish urgency. On others it was non
appearance, or non-compliance with a Practice Directive. Lesedi has previously
been mulcted in costs on the punitive scale on two prior occasions for materially
similar conduct. It cannot expect a further indulgence in the absence of any
explanation whatsoever.
[20] The respondents have shown real and demonstrable prejudice. They were
left to prepare for an opposed hearing without knowledge of the case they were
required to meet. That is precisely the kind of procedural ambush our courts have
consistently condemned. The prejudice extends also to this Court, whose own
preparation for the hearing was correspondingly compromised by the absence of
proper heads. I am accordingly of the view that the point in limine is well taken,
and that the matter is not ripe for hearing.
Striking from the roll or postponement
[21] The respondents seek, in the alternative to striking, a postponement sine
die. A postponement sine die is, however, no more attractive than striking. What
would occur in ordinary litigation is that the matter would return to the roll only
once Lesedi applies afresh for a date. This would countermand efficient,
expeditious and cost effective litigation. To my mind, such an approach would
result in the recurring historical litigating conduct being repeated.
[22] Litigation must be conducted in a posture that breathes life into access to
courts. To this end, regard must also be had to section 34 of the Constitution,
which guarantees every litigant the right to have a justiciable dispute resolved in
a fair public hearing before a court. The interim reliefLesedi seeks has never been
heard on its merits, and the Chrome Wash Plant remains, in the interim, under the
respondents' asse1ted administrative control.
[23] To strike the application, or to postpone it sine die, would return the
underlying dispute to the general allocation queue for an indeterminate period, a
consequence not lightly countenanced where a litigant's access to court is already
implicated. Given the litigation history recounted supra , I am instead of the view
that the more prudent course is to postpone the matter to a specific date, on strict
condition, rather than to strike it or postpone it sine die. This kind of approach
would inadvertently result in proper judicial oversight and management of the
matter.
[24] The application is accordingly postponed to a preferential date before
Reddy J, to be arranged with the Office of the Judge President and the Registrar,
on condition that Lesedi delivers heads of argument fully compliant with the
applicable Practice Directives . Should Lesedi fail to comply with this condition,
the respondents are granted leave, without further notice, to re-enrol their
objection to enrolment for hearing at the earliest available opportunity, and any
further non-compliance shall stand as an aggravating factor for purposes of costs.
Costs
[25] The respondents seek costs on the scale as between attorney and client.
Such an order is not lightly made, and is generally reserved for conduct that is
vexatious, reckless, or otherwise deserving of judicial disquiet. In, In Alluvial
Creek, Ltd the following was stated:
'there are people who enter into litigation with the most upright purpose and a most firm belief
in the justice of their cause, and yet whose proceedings may be regarded as vexatious when
they put the other side to unnece ssary trouble and expense which the other side ought not to
bear. '4
[26] In the premises, such an order is warranted. Lesedi's default is not a first,
nor even a second, infraction. It forms part of an established pattern, previously
twice visited with punitive costs orders in related proceedings , and repeated here
without the slightest attempt at explanation. A punitive costs order is accordant
with the justice of the case.
Order
[27] In the result, the following order is made:
1. The point in limine is upheld.
2. The application is postponed to a preferential date before Reddy J, to be
arranged with the Office of the Judge President and the Registrar, on condition
that the applicant delivers heads of argument fully compliant with the applicabl e
Practice Directives .
3. Should the applicant fail to comply with the condition in paragraph 2, the
respondent s are granted leave, without further notice, to re-enrol their objection
to enrolment for hearing at the earliest available opportunity.
4. The applicant is directed to pay the wasted costs occasioned by the
defective enrolment , on the scale as between attorney and client.
4 /n re Alluvial Creek ltd 1929 CPD 532 at 535.
REDDY J
JUDGE OF THE HIGH COURT, SOUTH AFRICA,
NORTH WEST DIVISION
Appearances
For the Applicant: Adv Marakalla
Instructed by: Rangwako Attorneys, Rustenburg
clo Kgomo Attorneys, Mahikeng
For the First and Second Respondents: Mr M.S. Ramoshaba
Instructed by: Ms Ramoshaba Attorneys Inc, Johannesburg
For the Third Respondent: No appearance