REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
Case Number: 2024-043187
In the matter between:
In the applications of:
J P RAUTENBACH t/a RAUTENBACH First Applicant for Intervention
AND ASSOCIATES
CORNELIS TOBIAS VERMAAK Second Applicant for Intervention
In re: the matter between:
DISCOUNT BOARD SPECIALISTS GROUP Plaintiff
(PTY) LIMITED
JOHANNES JACOBUS POTGIETER Defendant
This judgment and the order incorporated herein is handed down by email to the
parties, and by uploading to Court Online.
JUDGMENT
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: NO
28 August 2026
_________________________
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MOULTRIE, J
[1] This is an opposed interlocutory application in which the First Applicant for
Intervention seeks to intervene in partially -pending default judgment proceedings
launched by the Plaintiff (DBSG) against the Defendant (Potgieter).
[2] At the outset, it is relevant to note that the deponent to the founding affidavit
describes himself as “JACOBUS PETRUS RAUTENBACH REG: CFDC
00128664/2023 … an adult male person, a debt collector by trade … and trading as
such under the name and style of Rautenbach and Associates”. Somewhat curiously,
however, the deponent then proceeds to identify “the applicant” for intervention in the
third person as “JP RAUTENBACH T/A RAUTENBACH AND ASSOCIATES”. The
same deponent also does not dispute in the replying affidavit that he has sent
correspondence to DBSG’s attorneys under the name “Ruatenbach [sic] Lundall and
Associates”, which is more fully described in the same correspondence as being “JP
(Werner) Rautenbach T/A Rautenbach and Associates”. Whatever the purpose of
these descriptions may be, i t is trite that while a natural person who plies their trade
under a trading name may be sued in that name, that is purely a procedural matter. It
does not substantively “turn a partnership or firm into a different entity or into a juristic
person, existing separately from its members or owner”.
1 As such, it is apparent that
it is Rautenbach himself who is the applicant ( and the purported cessionary of the
claim that forms the basis of the intervention application).
[3] Rautenbach’s intervention application was instituted after default judgment had
been granted against Potgieter in the unopposed motion court on 22 August 2024 in
respect of all of DBSG’s claims except for “Claim A”, which was postponed sine die.
Under this claim, DBSG pursues a declaration that a sale agreement concluded
between DBSG (as buyer) and Potgieter (as seller) and signed on 11 March 2021 in
between DBSG (as buyer) and Potgieter (as seller) and signed on 11 March 2021 in
respect of certain immovable property is valid and binding, together with anciliary
orders directing Potgieter or , failing him, the Sheriff to sign the documentation
necessary to effect transfer of the property to DBSG.
1 DF Scott (EP) (Pty) Ltd v Golden Valley Supermarket 2002 (6) SA 297 (SCA) para 9.
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[4] The reason why DBSG’s default judgment claim for transfer of the property was
postponed and not granted in the order of 22 August 2024 was because Rautenbach
delivered a notice of intention to oppose and counsel appeared at Court his behalf
contending that his client has a direct and substantial interest in the relief sought by
DBSG under Claim A, and that it was his intention to launch an intervention application
and oppose that relief. This argument found favour with the court, which proceeded to
grant an order placing Rautenbach on terms to deliver “a substantive Application to
Intervene and/or be joined in respect of Claim A ”. He subsequently did so, albeit four
days after the stipulated date of 3 September 2024 – a matter to which I return below.
Answering and replying papers were subsequently delivered, as were DBSG’s heads
of argument.
[5] Rautenbach’s intervention application was then set down on the opposed
motion roll. However, Rautenbach (who had hitherto not been formally represented)
declined to co-operate in the process of preparing a joint practice note as mandated
by this Court’s Consolidated Practice Directive, 1 of 2024. The reason advanced for
this conduct was Rautenbach’s contention that his own intervention application was
not ripe for hearing because another intervention application that had been threatened
(and which was subsequently launched) by the Second Applicant for Intervention
(Vermaak). Vermaak also claims to be one of Potgieter’s many creditors who seek to
claim rights in respect of the property . In his intervention application (which was
subsequently opposed by DBSG) , Vermaak alleges that he is “the legally entitled
owner of the property” by virtue of a settlement agreement allegedly concluded
between him and Potgieter, and which had allegedly been made an order of court in
the Cullinan Magistrates’ Court on 24 April 2025. DBSG rejected the contention that
this constituted a reason why Rautenbach’s intervention application was not ripe for
this constituted a reason why Rautenbach’s intervention application was not ripe for
hearing and declined to agree to delay the hearing of Rautenbach’s application.
[6] This prompted Rautenbach and Vermaak (by now both represented, by the
same attorneys) to jointly deliver a formal application (to be moved on the same date
as Rautenbach’s intervention application) seeking that it be postponed sine die. DBSG
proceeded to file a unilateral practice note indicating that the joint postponement
application would be opposed, that it continued to seek a determination of
Rautenbach’s intervention application and that it would seek costs on a punitive scale
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due to his failure to deliver heads of argument and co-operate in preparing the required
joint practice note. By the time of the hearing, answering and replying affidavit s had
been delivered in the joint postponement application, and DBSG had also helpfully
delivered concise heads of argument. As such, the matters requiring my determination
were the joint postponement application and, should it not succeed, Rautenbach’s
intervention application.
[7] Having heard argument from Ms Jooste on behalf of Rautenbach and Vermaak
and Mr Strydom on behalf DBSG, I dismissed the joint postponement application and
indicated that the reasons would be set out in my judgment in Rautenbach’s
intervention application. I do so now. The basis upon which Rautenbach and Vermaak
sought the postponement of the hearing of Rautenbach’s intervention application was
the bald allegation Vermaak’s intervention application is “inextricably linked” to that of
Rautenbach together with the contention that “the procedural timelines applicable to
the Second Intervention Application will not have run their full course” by the time of
the hearing. The deponent proceeded to submit “that it would be prudent and in the
interest of justice for both applications to be heard simultaneously”. Even though I
was prepared to approach the joint postponement application on the assumption that
Vermaak’s intervention application was justified and would succeed, it was apparent
to me that that was entirely irrelevant to the merits of either postponement application
or Rautenbach’s intervention application. Simply put, the two intervention applications
are entirely distinct and independent of each other . There was no reason of principle
why they might have to be heard and decided simultaneousl y, or why the hearing of
Rautenbach’s intervention should not proceed on its own. My findings on the costs of
the joint postponement application are set out below . I only mention here that DBSG
the joint postponement application are set out below . I only mention here that DBSG
did not pursue an award of costs against Vermaak but, as foreshadowed in the
unilateral practice note, persisted in seeking costs against Rautenbach on an attorney
and client scale.
[8] Before proceeding to determine the merits of Rautenbach’s intervention
application, it is necessary for me to briefly address the fact that it was only served
(via email) at 16h10 on Monday, 9 September 2024. As noted above, this was four
court days after the date stipulated in the order of 22 August 2024. Although
Rautenbach seeks (and DBSG opposes the grant of) condonation for this delay, I am
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doubtful that this is indeed the case. This is because, at the time that the order was
made, Rautenbach was neither a party to the proceedings nor had he instituted his
intervention application. But while it thus seems questionable to me whether it can
truly be said that Rautenbach was bound to deliver his application by the date specified
in the order, I can see no useful purpose in examining that question further. I prefer to
take a more practical, if less principled, approach: having in any event heard full
argument on the merits of the intervention application and, since the parties both
accept that condonation is indeed required, I have little difficulty in making an order
formally granting it on the basis of an unexamined assumption that the parties are
correct. Again, my findings on costs are set out below.
[9] Rautenbach’s intervention application is premised on what he describes as a
“cession document” attached to his founding affidavit, in terms of which Potgieter’s ex-
wife (one Kyrnytska) ostensibly ceded a claim against Potgieter “for monies due and
payable” to her in the amount of R1.05 million “forth spreading [sic] from a divorce
order” to “Rautenbach & Associates – or any person so duly authorised, employed or
associated with Rauten bach & Associates. Sole Proprietor: J P Rautenbach T/A
Rautenbach & Associates CFDC registration Number: 00128664/23”. The claim that
forms the subject of the cession arises from an agreement allegedly concluded
between Kyrnytska and Potgieter in November 2022 under which the proprietary terms
of their divorce was settled and which was made an order of court by the Magistrates’
Court, Cullinan during January 2023 when it issued a decree divorcing them.
Rautenbach does not suggest that the effective date of the alleged cession was any
date later than 15 July 2024, being the date on which it was ostensibly signed by both
Kyrnytska (at Kansas in the United States of America) and Rautenbach (at
Roodepoort).
Kyrnytska (at Kansas in the United States of America) and Rautenbach (at
Roodepoort).
[10] DBSG raises a range of defences in response to Rautenbach’s intervention
application, most of which are seemingly aimed at excluding the evidence of the
cession. These include: ( a) that the confirmatory affidavit of Kyrnytska submitted as
part of the answering papers was not validly commissioned; and (b) that the
confirmatory affidavit had not been duly authenticated in compliance with the
provisions of Rule 63.
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[11] However, even assuming (without deciding) that these procedural difficulties
may be determined in Rautenbach’s favour, and that the cession document was in fact
signed by him and Kyrnytska and can be considered by me, I still do not accept that
he has made out a case on the merits for the intervention order that he seeks. I say
so, two reasons.
[12] In its answering affidavit, DBSG observed that the alleged interest of
Rautenbach in its claim against Potgieter for transfer of the property was not the
interest that he had initially identified in a letter addressed to DBSG’s attorneys dated
16 July 2024 (but which, as is apparent from its content was written on 17 July 2024,
when it was transmitted via email ). Extraordinarily, however, that letter (of which
Rautenbach does not dispute he was the author) makes no mention whatsoever of the
purported cession document upon which he now relies , and which had been signed
only hours previously. To the contrary, the letter stated that Rautenbach was acting
on behalf” of Kyrnytska, whom he described as “our client”. In its answering affidavit,
DBSG invited the court to draw the inference that the cession was not bona fide and
that Kyrnytska and Rautenbach “conspired to effect an ostensible transfer of the right
of action but that the proceeds of any successful recovery from [Potgieter] will accrue
to [Kyrnytska] and [Rautenbach] is merely the nominal party acting on her behalf ”. In
his replying affidavit, Rautenbach: (a) continued to insist that the 17 July letter was
sent in his capacity as a debt collector and that it set forth an argument in support of
his “ client instructions ”; (b) baldly denied DBSG’s contention that the cession
document had been backdated; and (c) insisted that it was valid, stating that
“regardless when the Applicant obtained cession of [Kyrnytska’s] rights the fact remain
that these rights have been ceded” . However, he failed to explain why he did not
that these rights have been ceded” . However, he failed to explain why he did not
mention it in the 17 July letter, and I am for that reason satisfied that \the most natural
or plausible inference to be drawn from the primary facts that I have accepted is that
the cession document is (at the very least) “not bona fide”, as DBSG contends, and
that Rautenbach cannot rely upon it for the purposes of his intervention application.
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[13] And even if I am incorrect in this regard, the intervention application must fail
for a further fundamental reason. Although the cession document purports to record
that the property that forms the subject of DBSG’s claim against Potgieter “provide[s]
2 South British Insurance Co Ltd v Unicorn Shipping Lines (Pty) Ltd 1976 (1) SA 708 (A) at 713E-H.
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the security for the collection of the liquidated amount” that constitutes Kyrnytska’s
claim against Potgieter under the settlement agreement , and although Rautenbach
alleges in his founding affidavit that he has a right under the cession document to “take
action to protect the interest and security provided by a fix property for a liquidated
amount” [sic], that is quite simply not correct . There is nothing in the settlement
agreement to justify a conclusion that the property constitutes real security for any
obligation owed by Potgieter to Kyrnytska that could form the basis of any claim of
which Rautenbach alleges to be the cessionary.
Conclusion, Costs and Order
[14] In conclusion, therefore, Rautenbach has not established any direct and
substantial interest in DBSG’s claim against Potgieter, and his intervention application
falls to be dismissed. I add that s ince it did not serve before me for determination, it
would be inappropriate to dismiss Vermaak’s intervention application and proceed to
grant default judgment in favour of DBSG on its remaining claim against Potgieter, as
requested by DBSG in one of the two alternative draft orders that it submitted.
[15] In my view, there is no reason why the costs of the postponement application
and the intervention application should not follow the result. Not only do I consider, for
the reasons set out above, that both of these applications were ill- conceived and
objectively vexatious in the sense that DBSG should not have been put to the trouble
of having to oppose them ,
3 but I am also of the view that Rautenbach’s conduct , in
failing to participate in the prehearing procedures required by the Practice Directive
and to favour the C ourt with written heads of argument on either application ,
constitutes “procedural delinquency” (as Mr Strydom aptly put it during argument) that
is deserving of censure in the form of a punitive costs order. I will consequently order
is deserving of censure in the form of a punitive costs order. I will consequently order
Rautenbach to pay DBSG’s costs in both applications on a scale as between attorney
and client. For the sake of completeness, I should add that , to the extent that DBSG
may have separately incurred any wasted costs in opposing Rautenbach’s prayer for
condonation, I am bound to accept such opposition was reasonabl e in light of the
conclusion that I have reached on the merits of the intervention application. And since
3 Re Alluvial Creek Ltd 1929 CPD 532 at 535; Ernst & Young v Beinash 1999 (1) SA 1114 (W) at
1148B-C.
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I grant condonation purely for the sake of good form on the assumption (but without
deciding) that it is required, and the grant of condonation is an indulgence in any
event,4 any such costs should follow those of the intervention application and be paid
on the same scale, again in view of Rautenbach’s procedural delinquency.
[16] In the premises (and in addition to the order I made at the hearing dismissing
the joint postponement application), I make the following order:
1. The First Intervening Party is granted condonation to proceed with the
application for leave to intervene.
2. Save as aforesaid, the application is dismissed.
3. The First Intervening Party is ordered to pay the Plaintiff’s costs (including the
costs of the postponement application and any wasted costs incurred in
opposing the prayer for condonation) on a scale as between attorney and client.
___________________________
RJ MOULTRIE
JUDGE OF THE HIGH COURT
GAUTENG DIVISION, JOHANNESBURG
Appearances: For the Applicants for Intervention: MF Jooste, instructed by JSK
Attorneys (replaced subsequent to the hearing by Rabie
Attorneys Inc.)
For the P laintiff: FP Strydom , instructed by Karla Strydom
Attorneys
4 Myers v Abramson 1951 (3) SA 438 (C) at 455G ; Ntangazana v Member of the Executive Council
for the Department of Education Eastern Cape [2025] ZASCA 160 (SCA) para 18.