Source:

Erasmus Superior Court Practice/Volume 2: Uniform Rules and Appendices/Part D1 Uniform Rules of Court/Rules regulating the conduct of the proceedings of the
several provincial and local divisions — GN R48 of 1965/Rules of Court/6 Applications

URL:
http://jutastat.juta.co.za/nxt/gateway.dll/scpr/399/427/428/429/437?f=templates$fn=default.htm

6 Applications
RS 24, 2024, D1 Rule 6­1
(1) Every application shall be brought on notice of motion supported by an affidavit as to the facts upon which the applicant relies for relief.
[Subrule (1) substituted by GN R2133 of 3 June 2022 and by GN R5124 of 16 August 2024.]
(2) When relief is claimed against any person, or where it is necessary or proper to give any person notice of such application, the notice of motion shall be
addressed to both the registrar and such person, otherwise it shall be addressed to the registrar only.
[Subrule (2) substituted by GN R5124 of 16 August 2024.]
(3) . . .
[Subrule (3) repealed by GN R2133 of 3 June 2022.]
(4) (a) Every application brought ex parte shall —
(i) be upon notice to the registrar supported by an affidavit referred to in subrule (1);
(ii) be filed with the registrar and set down, before noon on the court day but one preceding the day upon which it is to be heard; and
(iii) set forth the form of order sought, specify the affidavit filed in support thereof, request the registrar to place the matter on the roll for hearing, and be as
near as may be in accordance with Form 2 of the First Schedule:
Provided that where an ex parte application is brought as an urgent application —
(i) the applicant shall indicate the basis on which the application is deemed to be urgent, including the provisions of any law upon which the applicant relies;
(ii) the application may be brought before a judge in chambers; and
(iii) the provisions of subrule (12) may be applied in so far as is necessary.
[Paragraph (a) substituted by GN R2133 of 3 June 2022 and by GN R5124 of 16 August 2024.]
(b) (i) Any person having an interest which may be affected by a decision on an application being brought ex parte, may deliver notice of an application for leave to
oppose, supported by an affidavit setting forth the nature of such interest and the ground upon which such person desires to be heard, whereupon the registrar shall set
such application down for hearing at the same time as the initial application.
(ii) The court hearing the matter may grant or dismiss either or both such applications as the case may require, or may adjourn the same upon such terms as to the
filing of further affidavits by either applicant or otherwise as it deems fit.
[Paragraph (b) substituted by GN R5124 of 16 August 2024.]
(c) . . .
[Paragraph (c) deleted by GN R5124 of 16 August 2024.]
(5) (a) Every application other than one brought ex parte shall be brought on notice of motion as near as may be in accordance with Form 2(a) of the First Schedule
and true copies of the notice, and all annexures thereto, shall be served upon every party to whom notice thereof is to be given.
[Paragraph (a) substituted by GN R3397 of 12 May 2023.]

RS 24, 2024, D1 Rule 6­2

(b) In a notice of motion the applicant shall —
(i) appoint an address within 25 kilometres of the office of the registrar and an electronic mail address, if available to the applicant, at either of which addresses
the applicant will accept notice and service of all documents in such proceedings;
(ii) state the applicant’s postal or facsimile addresses where available; and
(iii) set forth a day, not less than 10 days after service thereof on the respondent, on or before which such respondent is required to notify the applicant, in
writing, whether respondent intends to oppose such application, and shall further state that if no such notification is given the application will be set down for
hearing on a stated day, not being less than 10 days after service on the said respondent of the said notice;
Provided that —
(aa) for the purposes of this subrule, the days between 21 December and 7 January, both inclusive, shall not be counted in the time allowed for delivery of the
notice of intention to oppose or delivery of any affidavit;
(bb) the provisions of subparagraph (aa) shall not apply to applications brought under subrule 6(12) of this rule and applications brought under rule 43.
[Paragraph (b) substituted by GN R1055 of 29 September 2017 and by GN R3397 of 12 May 2023.]
(c) If the respondent does not, on or before the day mentioned for that purpose in such notice, notify the applicant of an intention to oppose, the applicant may
place the matter on the roll for hearing by giving the registrar notice of set down before noon on the court day but one preceding the day upon which the same is to be
heard.
(d) Any person opposing the grant of an order sought in the notice of motion shall —
(i) within the time stated in the said notice, give applicant notice, in writing that such person intends to oppose the application, and in such notice appoint an
address within 25 kilometres of the office of the registrar and an electronic mail address, if available to such person, at either of which addresses such
person will accept notice and service of all documents, as well as such person’s postal or facsimile addresses where available;
(ii) within 15 days of notifying the applicant of intention to oppose the application, deliver such person’s answering affidavit, if any, together with any relevant
documents; and
(iii) if such person intends to raise any question of law only such person shall deliver notice of intention to do so, within the time stated in the preceding sub­
paragraph, setting forth such question.
[Paragraph (d) substituted by GN R2133 of 3 June 2022 and by GN R3397 of 12 May 2023.]
(e) Within 10 days of the service upon the respondent of the affidavit and documents referred to in sub­paragraph (ii) of paragraph (d) of subrule (5) the
applicant may deliver a replying affidavit. The court may in its discretion permit the filing of further affidavits.

RS 24, 2024, D1 Rule 6­2A

(f) (i) Where no answering affidavit, or notice in terms of sub­paragraph (iii) of paragraph (d), is delivered within the period referred to in sub­paragraph (ii) of
paragraph (d) the applicant may within five days of the expiry thereof apply to the registrar to allocate a date for the hearing of the application.
(ii) Where an answering affidavit is delivered the applicant may apply for such allocation within five days of the delivery of a replying affidavit or, if no
replying affidavit is delivered, within five days of the expiry of the period referred to in paragraph (e) and where such notice is delivered the applicant may apply for
such allocation within five days after delivery of such notice.
(iii) If the applicant fails so to apply within the appropriate period aforesaid, the respondent may do so immediately upon the expiry thereof. Notice in writing
of the date allocated by the registrar shall be given by the applicant or respondent, as the case may be, to the opposite party within five days of notification from the
registrar.
[Subparagraph (iii) substituted by GN R3397 of 12 May 2023.]

RS 24, 2024, D1 Rule 6­3

(g) 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 cross­examined as a witness or it may refer the matter to trial with appropriate directions as to pleadings or definition of
issues, or otherwise.
(h) . . .
[Paragraph (h) repealed by GN R2133 of 3 June 2022.]
(6) The court, after hearing an application whether brought ex parte or otherwise, may make no order thereon (save as to costs if any) but grant leave to the
applicant to renew the application on the same papers supplemented by such further affidavits as the case may require.
(7) (a) Any party to any application proceedings may bring a counter­application or may join any party to the same extent as would be competent if the party
wishing to bring such counter­application or join such party were a defendant in an action and the other parties to the application were parties to such action. In the
latter event the provisions of rule 10 will apply.
(b) The periods prescribed with regard to applications apply to counter­applications: Provided that the court may on good cause shown postpone the hearing of
the application.
(8) Any person against whom an order is granted ex parte may anticipate the return day upon delivery of not less than twenty­four hours’ notice.
(9) A copy of every application to court in connection with the estate of any person deceased, or alleged to be a prodigal, or under any legal disability, mental or
otherwise, shall, before such application is filed with the registrar, be submitted to the Master for consideration and report; and if any person is to be suggested to the
courtJuta
© 2018 for and
appointment
Companyas(Pty)
curator
Ltd.to property, such suggestion shall likewise be submitted Downloaded
to the Master for
: Frireport.
Apr 25Provided that theGMT+0200
2025 15:31:26 provisions of this subrule
(South do not Time)
Africa Standard
apply to any application under rule 57 except where that rule otherwise provides.
[Subrule (9) substituted by GN R5124 of 16 August 2024.]
 (b) The periods prescribed with regard to applications apply to counter­applications: Provided that the court may on good cause shown postpone the hearing of
the application.
(8) Any person against whom an order is granted ex parte may anticipate the return day upon delivery of not less than twenty­four hours’ notice.
(9) A copy of every application to court in connection with the estate of any person deceased, or alleged to be a prodigal, or under any legal disability, mental or
otherwise, shall, before such application is filed with the registrar, be submitted to the Master for consideration and report; and if any person is to be suggested to the
court for appointment as curator to property, such suggestion shall likewise be submitted to the Master for report. Provided that the provisions of this subrule do not
apply to any application under rule 57 except where that rule otherwise provides.
[Subrule (9) substituted by GN R5124 of 16 August 2024.]
(10) The provisions of subrule (9) further apply to all applications for the appointment of administrators and trustees under deeds or contracts relating to trust funds
or to the administration of trusts set up by testamentary disposition.
(11) Notwithstanding the aforegoing subrules, interlocutory and other applications incidental to pending proceedings may be brought on notice supported by such
affidavits as the case may require and set down at a time assigned by the registrar or as directed by a judge.

RS 24, 2024, D1 Rule 6­4

(12) (a) In urgent applications the court or a judge may dispense with the forms and service provided for in these rules and may dispose of such matter at such
time and place and in such manner and in accordance with such procedure (which shall as far as practicable be in terms of these rules) as it deems fit.
(b) In every affidavit filed in support of any application under paragraph (a) of this subrule, the applicant shall set forth explicitly the circumstances which it is
averred render the matter urgent and the reasons why the applicant claims that applicant could not be afforded substantial redress at a hearing in due course.
[Paragraph (b) substituted by GN R2133 of 3 June 2022 and by GN R5124 of 16 August 2024.]
(c) A person against whom an order was granted in such person’s absence in an urgent application may by notice set down the matter for reconsideration of the
order.
(13) In any application against any Minister, Deputy Minister, Member of an Executive Council, officer or servant of the State, in such capacity, the State or the
administration of any province, the respective periods referred to in paragraph (b) of subrule (5), or for the return of a rule nisi, shall be not less than 15 days after the
service of the notice of motion, or the rule nisi, as the case may be, unless the court has specially authorized a shorter period.
[Subrule (13) substituted by GN R5124 of 16 August 2024.]
(14) The provisions of rules 10, 11, 12, 13 and 14 apply to all applications.
(15) The court may on application order to be struck out from any affidavit any matter which is scandalous, vexatious or irrelevant, with an appropriate order as to
costs, including costs as between attorney and client. The court may not grant the application unless it is satisfied that the applicant will be prejudiced if the application
is not granted.
[Rule 6 substituted by GN R3 of 19 February 2016 and amended by GN R2133 of 3 June 2022.]

Commentary
Forms. Notice of motion (to registrar), 2; Notice of motion (to registrar and respondent), 2(a); Notice of agreement or opposition to mediation,
27.
General. 1 In terms of rule 1 ‘application’ means ‘a proceeding commenced by notice of motion or other forms of applications provided for by
rule 6.’ Rule 6 makes provision for the following distinct applications:
(a) applications on notice and, in this regard —
(i) unopposed applications;
(ii) opposed applications, which may further be divided into those that can properly be decided on affidavit and those that cannot;
(b) ex parte applications (including applications for leave to oppose an ex parte application);
(c) interlocutory and other applications incidental to pending proceedings;
(d) urgent applications;
(e) application for the striking out from any affidavit matter which is scandalous, vexatious or irrelevant;
(f) counter­applications. 2

Every application must comply with the provisions of rule 62. See further rule 62 and the notes thereto below.

RS 24, 2024, D1 Rule 6­5

3
Most of the divisions of the High Court have their own, sometimes very detailed, local rules of practice relating to applications.
An application is brought on notice and addressed to the registrar and a particular person when relief is claimed against any such person, or
where it is necessary or proper to give any such person notice of the application. 4 An application is brought ex parte and addressed to the
registrar only, where no relief is claimed against any person and it is neither necessary nor proper to give any person notice thereof. 5
The rules set out the requirements in relation to the form, place and manner in which applications on notice or ex parte applications should
be brought. An interlocutory application or an application incidental to pending proceedings, as opposed to applications on notice or ex parte
applications commencing proceedings, may be brought on notice addressed to all other parties to the pending dispute and the registrar and not
on notice of motion. 6 Certain requirements in the rules relating to the form, place and manner in which applications should be brought do not
apply to interlocutory applications. 7 An urgent application can be brought either on notice or ex parte. 8 To the extent that an application
which is not ex parte is urgent, the court or a judge may dispense with the forms and service provided for in the rules. 9 As opposed to
applications on notice or ex parte applications, an urgent application may be disposed of at such time and such place and in such manner and in
accordance with such procedure as may be necessary or desirable to the court or a judge. 1 0
For the citation of the relevant division of the High Court in the heading of the notice of motion, see Directive 3/2004 issued by the Chief
Justice under GN 148 of 28 February 2014 (GG 37390 of 28 February 2014), which is reproduced in Volume 3, Part E1, but which is in need of an
update.
It has been held that, in an application on notice of motion, the giving of notice to the respondent (where relief is claimed against such
respondent) is an essential first step. Consequently, an application is not properly initiated by the mere filing of the application with the registrar
of the High Court and the issue thereof by the registrar. 1 1
It is imperative that motion court litigation should be conducted in an efficient manner. In Venmop 275 (Pty) Ltd v Cleverlad Projects (Pty)
Ltd 1 2 Peter AJ observed: 1 3
‘The efficient conduct of litigation has as its object the judicial resolution of disputes, optimising both expedition and economy. The conduct and
finalisation of litigation in a speedy and cost­efficient manner is a collaborative effort. The role of witnesses is to testify to relevant facts of which
they have personal knowledge. The role of legal representatives has two key aspects. First is the supervision, organisation and presentation of
evidence of the witnesses and, secondly, the formulation and presentation of argument in support of a litigant’s case. The diligent observation of
those roles facilitates the role of the judicial officer, which is to arrive at a reasoned determination of the issues in dispute,

RS 24, 2024, D1 Rule 6­6

in favour of one or other of the parties. Where practitioners neglect their roles, it leads to the protracted conduct of the litigation in an ill­
disciplined manner, the introduction of inadmissible evidence and the confusion of fact and argument, with the attendant increase in costs and
delay in its finalisation, inimical to both expedition and economy.’
It is undesirable to dispose of an application piecemeal. 1 4 It is the duty of legal practitioners appearing in motion court to draw the presiding
judge’s attention to any deviations from the standard forms and orders in the papers and to offer an explanation therefor. 1 5
Legal practitioners appearing in motion court also have a duty, in both opposed and unopposed motions, to direct the court’s attention to
any relevant authority. 1 6 In Multi­Links Telecommunications Ltd v Africa Prepaid Services Nigeria Ltd 1 7 Fabricius J stated: 1 8
‘I do agree with Mr A Bham SC’s submission that certain general standards apply in the context of whether or not counsel are obliged to bring an
authority, which precluded the granting of an order sought, to the court’s attention. I agree with what Wunsh J said in Ex parte Hay Management
Consultants (Pty) Ltd 2000 (3) SA 501 (W) ([2002] 2 All SA 592) at 506B–D:
“Had I not known of it, counsel’s ignorance of its existence and failure to bring it to my attention could have misled me. While counsel and
attorneys may not be expected to read the law reports as they are published and recall their contents or effect, if they have to present
argument on a matter, the least that is expected of them is to consult the relevant textbooks, the consolidated indexes of and noters­up to
the ordinary law reports and the indexes of and noters­up in weekly or monthly reports which have been published after the effective date
© 2018 Juta and of the latest consolidated index and noter­up. I do not mention the computer services that are available to retrieve material.”
Company (Pty) Ltd. Downloaded : Fri Apr 25 2025 15:31:26 GMT+0200 (South Africa Standard Time)
I could, however, add that I do expect counsel and attorneys to read the law reports as they are published, as they may have a vital impact on
litigation with which they are busy. Counsel should be up to date with recent authorities in their field of practice and authority that relates to the
 Consultants (Pty) Ltd 2000 (3) SA 501 (W) ([2002] 2 All SA 592) at 506B–D:
“Had I not known of it, counsel’s ignorance of its existence and failure to bring it to my attention could have misled me. While counsel and
attorneys may not be expected to read the law reports as they are published and recall their contents or effect, if they have to present
argument on a matter, the least that is expected of them is to consult the relevant textbooks, the consolidated indexes of and noters­up to
the ordinary law reports and the indexes of and noters­up in weekly or monthly reports which have been published after the effective date
of the latest consolidated index and noter­up. I do not mention the computer services that are available to retrieve material.”
I could, however, add that I do expect counsel and attorneys to read the law reports as they are published, as they may have a vital impact on
litigation with which they are busy. Counsel should be up to date with recent authorities in their field of practice and authority that relates to the
subject matter at hand when they appear in court. Obviously, it happens every day that counsel’s opponent mentions an authority of which he (or
she) had either not been aware, or had not mentioned during the address or argument. Similarly the court mero motu often refers to an authority
that was not mentioned by the parties. This does not per se mean that one or other counsel was negligent or acted improperly. It also does not
mean that they had an improper motive per se, or acted vexatiously. Each case would depend on its own merits, and in my view no general rule
should be laid down that would have the effect of limiting in any way counsel’s duty to act fearlessly, but obviously honestly and ethically. As I
have said, in the present instance, I do not find that either Mr Biebuyck or his counsel in the attachment application acted so irresponsibly that a
special costs order would be justified against them personally.’
A court is empowered, in the exercise of its discretion, to direct that a preliminary point (i e a point in limine) be disposed of first in motion
proceedings. 1 9 Such an order will be made when

RS 25, 2024, D1 Rule 6­7

the issue is one of substance that may dispose of the case as a whole, or at least of a substantial portion thereof. 2 0 This procedure is
particularly apposite when the legal issues are crisp and far removed from any conflict of fact, much like when parties first argue a legal issue,
but nevertheless request a court to refer the matter to oral evidence if the applicant should lose the legal point. 2 1 In the aforesaid
circumstances it will normally be convenient to allow the parties first to complete argument on the preliminary issue and, depending on the
outcome thereof, only then to proceed with the remainder of the case. 2 2
If an issue is not raised in an application, no relief is claimed concerning it and it is not properly and fully argued, it would be imprudent and
inappropriate for the court hearing the application to pronounce upon it. 2 3
The principles applicable to an application for the grant of a postponement of an application are the same as those that apply to trials. 24

As to amendments to a notice of motion or an affidavit, see the notes to rule 28 s v ‘General’ below.
The dismissal or refusal of an application amounts to a decision in favour of the respondent. 25

In BR v TM 2 6 it is pointed out 2 7 that, since the decision in Room Hire Co (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd, 2 8 our courts have
consistently held, on grounds of public policy, that motion proceedings are not permissible in matrimonial causes as it is undesirable for a court
to grant a divorce without hearing oral evidence of the parties, first, because not only is the status of the parties themselves involved, but also
that of children, and, secondly, because of the interest of the State in the preservation of the binding nature of marriage.
In Malema v Rawula 2 9 the Supreme Court of Appeal held that a claim for defamation by way of application for an interdict was not a new
phenomenon in our law. 3 0 The court held that damages for defamation may, however, not be claimed in motion proceedings. 3 1 In NBC Holdings
(Pty) Ltd v Akani Retirement Fund Administrators (Pty) Ltd 3 2 the Supreme Court of Appeal held 3 3 that where relief for defamation in
application proceedings was directed

RS 25, 2024, D1 Rule 6­8

at compensating the claimant for harm caused by publication of defamatory material, such relief, whether damages, an apology or a retraction,
could not be claimed in motion proceedings where there were disputes of fact that required evidence to be led.
In IRD Global Ltd v The Global Fund to fight AIDS, Tuberculosis and Malaria 3 4 the Supreme Court of Appeal held that it was settled law that
an apology or retraction might serve the same purpose as an award of damages. That relief, however, required the institution of an action. 3 5
A claim for the rectification of a contract should not be brought in the guise of an application for a declaration of rights. 3 6 An action for
rectification of the contract should rather be instituted. 3 7 In Schoonhoven NNO v Schoonhoven 3 8 the applicants sought declaratory relief
relating to the proper interpretation of a trust deed. Following Hadiaris v Freeman & Freeman 3 9 it was held 4 0 that the declaratory relief
sought by the applicants amounted to a rectification of the trust deed and that an action to claim such rectification instead of an application
for declaratory relief should have been instituted.
Subrule (1): ‘Every application.’ Pursuant to its substitution with effect from 8 July 2022, 4 1 the subrule no longer makes reference to
proceedings instituted by way of petition. Proceedings by way of petition were abolished with effect from 1 July 1976 by the Petition
Proceedings Replacement Act 35 of 1976 which provides that any reference in any law to the institution of application proceedings in any court
by petition, shall be construed as a reference to the institution of such proceedings by notice of motion in terms of the rules of court. 4 2 In
terms of rule 1 ‘application’ means ‘a proceeding commenced by notice of motion or other forms of applications provided for by rule 6.’ See
further the notes to rule 6 s v ‘General’ above.
‘Shall be brought on notice of motion.’ The term ‘notice of motion’ is used in two different senses: (i) to denote particular written notices,
the form of which is prescribed in the First Schedule to the rules; 4 3 and (ii) to denote one of the different ways in which civil proceedings may
be initiated. 4 4 It is not a requisite of the rules that a notice of motion must, as in the case of a summons, be issued by the registrar or
delivered to him before it may be served upon the respondent. 4 5
Notice of mediation. In every new application proceeding, the applicant must, together with the notice of motion, serve on each respondent a
notice indicating whether such applicant agrees to or opposes referral of the dispute to mediation. 4 6 The notice must substantially be in
accordance with Form 27 of the First Schedule and must clearly and concisely indicate

RS 25, 2024, D1 Rule 6­8A

the reasons for the applicant’s belief that the dispute is or is not capable of being mediated. 47The notice must not be filed with the
registrar. 4 8 If the parties agree on mediation, and a joint minute to that effect is signed, the time limits prescribed by the rules for the delivery
of notices and the filing of affidavits or the taking of any step are suspended for every party to the dispute from the date of signature of the
minute to the time of conclusion of mediation: Provided that any party to the proceedings who considers that the suspension of the prescribed
time limits is being abused, may apply to the court for the upliftment of the suspension of the prescribed time limits. 4 9 See further the
provisions of rule 41A below.

RS 24, 2024, D1 Rule 6­9

In Nomandela v Nyandeni Local Municipality 5 0 the applicant’s urgent application for interim relief was met with the respondent’s point in
limine that the applicant failed to comply with rule 41A(2)(a). At issue was whether the court should allow the application to proceed as it
stood. It was held 5 1 that rule 41A(2)(b) compels a respondent to also file its notice as to whether it agrees to or opposes referral of the
dispute for mediation. The rule did not suggest that the respondent’s compliance was dependent on the applicant’s filing of a rule 41A(2)(a)
notice. Even if it were, nowhere in the answering affidavit was it stated that the respondent would have wished to explore or not explore the
mediation process, but could not do so for reason of the applicant’s non­filing. The respondent could have complied with its part of the
obligation in terms of the rule or communicated its stance on mediation regardless of the applicant’s failure. The rules were meant to be
complied with, but they were meant for the court, and not the other way round. While it was ideal that litigants comply with rule 41A, in the
interests of justice the issues raised in the application called for immediate resolution rather than removing the matter from the roll in order for
the litigants to pronounce on whether they would agree to or oppose mediation. The point in limine was accordingly dismissed.
In Ethypersadh v Minister of Police NO 52 it was held that an application brought on an urgent basis would of necessity not be subject to the
provisions of rule 41A. 5 3
‘Supported by an affidavit.’ An affidavit is a statement in writing sworn to before someone who has authority to administer an oath; it is a
solemn assurance of fact known to the person who states it, and sworn to as his statement before some person in authority such as a
© 2018 Juta and Company
magistrate, justice of(Pty)
the Ltd. Downloaded
peace, commissioner of the court or a commissioner of oaths. 5 :4 Fri
OnApr 25attestation
the 2025 15:31:26
of GMT+0200
affidavits,(South Africa
see Part D3Standard
below. Time)
On the amendment of affidavits, see the notes to rule 28 s v ‘General’ below.
 In Ethypersadh v Minister of Police NO 52 it was held that an application brought on an urgent basis would of necessity not be subject to the
provisions of rule 41A. 5 3
‘Supported by an affidavit.’ An affidavit is a statement in writing sworn to before someone who has authority to administer an oath; it is a
solemn assurance of fact known to the person who states it, and sworn to as his statement before some person in authority such as a
magistrate, justice of the peace, commissioner of the court or a commissioner of oaths. 5 4 On the attestation of affidavits, see Part D3 below.
On the amendment of affidavits, see the notes to rule 28 s v ‘General’ below.
In terms of rule 62:
(i) every affidavit must be divided into concise paragraphs which shall be consecutively numbered (subrule (3));
(ii) every affidavit filed with the registrar by or on behalf of a respondent must, if the respondent is represented, on the first page thereof
bear the name and address of the attorney filing it (subrule (5));
(iii) the registrar may reject any document which does not comply with the requirements of the rule (subrule (6)).
Who can execute an affidavit. Anyone who can lawfully be a witness can execute an affidavit. The Criminal Procedure Act 51 of
1977 5 5 provides that ‘no person appearing or proved to be afflicted with mental illness or to be labouring under any imbecility of mind due to
intoxication or drugs or the like, and who is thereby deprived of the proper use of his reason, shall be competent to give evidence while so
afflicted or disabled’. It is submitted that these statutory bars to the competency of a witness in criminal matters in principle apply equally to
civil matters. A further incompetency to make an affidavit might exist in the case of a

RS 24, 2024, D1 Rule 6­10

child too young to know what it was deposing to: the competence of the child depends upon its mental development and condition. 56

Subrule (1) requires a notice of motion to be accompanied by at least one affidavit. It is not necessary for the applicant to file an affidavit: a
notice of motion can be supported by any person who is in a position to provide the necessary material to support the claim. 5 7 It is, in general,
undesirable for an attorney to depose to an affidavit on matters that can equally or more appropriately be deposed to by his client. 5 8
‘The facts upon which the applicant relies for relief.’ The facts must be set out simply, clearly and in chronological sequence, and without
argumentative matter, in the affidavits which are filed in support of the notice of motion. 5 9 It is well established that ‘it is . . . imperative that a
litigant should make out its case in its founding affidavit, and certainly not belatedly in argument’. 6 0 The statement of facts must at least
contain the following information:
(i) The applicant’s right to apply, that is, the applicant’s locus standi. 6 1 In Scott v Hanekom 6 2 it is said that it is ‘trite law that appropriate
allegations to establish the locus standi of an applicant should be made in the launching affidavits and not in the replying affidavits’.
The deponent to the affidavit need not be authorized by the party concerned to depose thereto. It is the institution of the proceedings
and the prosecution thereof that must be authorized. 6 3
It is submitted that authorization to institute motion proceedings should not be conflated with locus standi in iudicio in such
proceedings. Authorization concerns proper authority to act on behalf of a party in the proceedings. Locus standi materially concerns the
direct interest of a party in the relief sought in the proceedings. For this reason

RS 25, 2024, D1 Rule 6­11

rule 7(1) should be applied when ‘the authority of anyone acting on behalf of a party’ is challenged. The rule does not limit such challenge
to the authority of attorneys to act on behalf of a party only but, it is submitted, includes challenges to authorizations to institute
proceedings in general. Properly applied, this interpretation of rule 7(1) in motion proceedings should, in the words of Flemming DJP in
Eskom v Soweto City Council, 6 4 ‘lead to the elimination of the many pages of resolutions, delegations and substitutions still attached to
applications by some litigants’. See further, in this regard, the notes to rule 7 s v ‘General’ and ‘Satisfies the court that he is authorised to
act’ below.
The question whether or not a deficiency in the applicant’s locus standi can be remedied retrospectively in the applicant’s replying
affidavit, has given rise to conflicting decisions. 6 5 A court will not be unduly technical and each case should be considered on its own
merits.
If new allegations regarding locus standi are made in the applicant’s replying affidavit, the respondent should be afforded an opportunity
to file a further affidavit in respect thereof.
As a matter of principle, when parties are cited in legal proceedings they are entitled without more to participate in those
proceedings. 6 6 The fact that they were cited as parties gives them that right. 6 7 It is not open to an applicant who has joined a
respondent to contend thereafter that it was a misjoinder and on that footing to resist an adverse order for costs. 6 8

RS 25, 2024, D1 Rule 6­12

(ii) The facts indicating that the court has jurisdiction. 69

(iii) The cause of action on which the applicant relies. 7 0 The respondent is entitled to raise an objection in limine (not an exception) that the
founding affidavit does not make out a prima facie case for the relief claimed. 7 1 An applicant may be allowed to amend the cause of
action by filing supplementary affidavits. 7 2 See further the notes to subrule (5)(d)(iii) s v ‘Intends to raise any question of law only’
below.
(iv) The evidence in support of the application. In application proceedings the affidavits take the place not only of the pleadings in an action,
but also of the essential evidence which would be led at a trial. 7 3 In other words, deponents to the affidavits are ‘testifying’ in the

RS 22, 2023, D1 Rule 6­13

motion proceedings. 7 4 It follows that affidavits must, as a general rule, contain admissible evidence. 7 5 Inadmissible material falls to be
struck out of affidavits. Disputes of fact ought not to be disguised in a mass of indignant argument, expostulation and other useless
verbiage. 7 6
In Knoop NO v Gupta 77 Wallis JA stated: 78

‘Before concluding it is appropriate to remark that the application papers in this matter reflect little credit on the legal practitioners
responsible for their preparation. They were replete with allegations in emotive terms not borne out by any of the evidence. Ms Ragavan’s
allegations against the BRPs did not stand up to scrutiny and the charges of incompetence, conflict of interest, lack of independence, a
failure to live up to the high professional standards expected of BRPs, and the like, were unwarranted. It should not be necessary to remind
legal professionals who draft affidavits for their clients that they bear a responsibility for the contents of those documents and may not use
them for the purpose of abusing their clients’ opponents. Such allegations should only be made after due consideration of their relevance
and whether there is a tenable factual basis for them. This aggressive tone was likewise reflected in the affidavits of Mr Knoop where he
described Ms Ragavan and others as “Gupta acolytes”, an expression more appropriate to a newspaper report than an affidavit. On many
points, he would have been better advised to set out greater detail and less rhetoric. As to some of the correspondence between the
attorneys, the less said, the better. It was marked by aggression, hostility and accusations, but little of great relevance to the case, and
little that reflected well on the authors.’
In Venmop 275 (Pty) Ltd v Cleverlad Projects (Pty) Ltd 79 Peter AJ held: 80

‘[15] The answering affidavit of Cleverlad amounted to 40 pages without annexures. Its contribution to the factual narrative was to
introduce, into the chronology, the correspondence concerning the offer to settle the award in instalments, Cleverlad’s application to make
the award an order of court and interlocutory proceedings to prevent the dissipation of assets. For the rest, the common­cause facts are set
out in the founding affidavit of Venmop. This amounted to 16 pages and included a repetition, in reported speech, of the contents of the
relief sought in the notice of motion, under the guise of an unhelpful explanation of “the purpose of the application”, as well as a number of
argumentative comments on rule 53 and the case that was being made under the Act. In argument I put to Mr Berlowitz, who appeared for
Cleverlad, that, stripped of its argumentative matter, the answering affidavit would be reduced to approximately a quarter of its size. Mr
Berlowitz conceded the unnecessary expanse but offered his estimate of one­third of non­argumentative matter.
[16] A statement appeared in the introductory paragraphs of the answering affidavit made by Cleverlad’s director, that where he made legal
© 2018 Juta and submissions,
Company (Pty)he did so on the strength of legal advice having been obtained
Ltd. by him: Fri
Downloaded on Apr
behalf of Cleverlad
25 2025 15:31:26 from its legal
GMT+0200 representatives
(South in Time)
Africa Standard
the application. A statement of such nature in motion proceedings has become increasingly popular in practice in the last few years. Its
 relief sought in the notice of motion, under the guise of an unhelpful explanation of “the purpose of the application”, as well as a number of
argumentative comments on rule 53 and the case that was being made under the Act. In argument I put to Mr Berlowitz, who appeared for
Cleverlad, that, stripped of its argumentative matter, the answering affidavit would be reduced to approximately a quarter of its size. Mr
Berlowitz conceded the unnecessary expanse but offered his estimate of one­third of non­argumentative matter.
[16] A statement appeared in the introductory paragraphs of the answering affidavit made by Cleverlad’s director, that where he made legal
submissions, he did so on the strength of legal advice having been obtained by him on behalf of Cleverlad from its legal representatives in
the application. A statement of such nature in motion proceedings has become increasingly popular in practice in the last few years. Its

RS 22, 2023, D1 Rule 6­14

purpose is to disclaim responsibility of the deponent for later argumentative matter which serves to inflate the papers and of which the
deponent has no comprehension. However impressive this might be to a lay client in justifying a legal representative’s fee for voluminous
affiavits, I find this practice disturbing in at least four respects. First, by their very nature these submissions have neither evidential content
nor probative value; as argumentative matter they have no place in affidavits. It is not for nothing that rule 6(1) of the Uniform Rules of
Court provides for an application to be supported by an affidavit “as to the facts”. Secondly, the argumentative submissions that follow are
expressly admitted hearsay and, as such, inadmissible. Thirdly, the submissions amount to legal opinions on matters upon which the court is
required to decide. Even expert legal opinion on matters of domestic law is neither necessary nor admissible (South Atlantic Islands
Development Corporation Ltd v Buchan 1971 (1) SA 234 (C) at 237C–F; and Prophet v National Director of Public Prosecutions 2007 (6) SA 169
(CC) (2006 (2) SACR 525; 2007 (2) BCLR 140; [2006] ZACC 17) para 43). Lastly, there is the aspect of professional legal privilege. It is well
established that a communication made in confidence between a client, or an agent for that purpose, and a legal professional in such
professional capacity, for the giving or receiving of legal advice, attracts professional legal privilege unless the purpose of the advice is to
facilitate the commission of a crime or fraud (see generally Three Rivers District Council and Others v Bank of England (No 6) [2004] UKHL 48
([2004] 3 WLR 1274; [2005] 1 AC 610); and Thint (Pty) Ltd v National Director of Public Prosecutions and Others; Zuma v National Director of
Public Prosecutions and Others 2009 (1) SA 1 (CC) (2008 (2) SACR 421; 2008 (12) BCLR 1197; [2008] ZACC 13) paras 183–185). However,
the privilege may be waived. In this sense, it is not only a waiver in the contractual sense of a decision to abandon a right with full
knowledge thereof (Laws v Rutherfurd 1924 AD C 261 at 263). It is rather an imputed waiver by implication; one which arises from the
element of publication of the privileged content, or part thereof, which can serve as a ground for the inference of an intention no longer to
keep the content secret (Ex parte Minister van Justisie: In re S v Wagner 1965 (4) SA 507 (A) at 514D). A waiver by implication is concerned
not so much with an ascertainment of the subjective implied intention of the party relinquishing the privilege, but fairness and consistency. It
is where the conduct in disclosing part of a confidential communication touches a point that fairness and consistency require disclosure of
the whole, irrespective of whether or not there was an intention to have this result (Wigmore On Evidence 3 ed vol 8, para 2327;
Kommissaris van Binnelandse Inkomste v Van der Heever 1999 (3) SA 1051 (SCA) at 1061B–C). This test of imputed or implied waiver is well
illustrated in the context of the litigation privilege in Competition Commission of South Africa v Arcelormittal South Africa Ltd and Others 2013
(5) SA 538 (SCA) ([2013] ZASCA 84) paras 33–34 and 37. Although the mere disclosure of the fact of a privileged communication, or its
existence, is not sufficient to justify an imputed waiver of its contents, where its substance is disclosed to secure an advantage in
proceedings, the High Court of Australia has found that this will reach the point that fairness and consistency require disclosure of the whole
of the communication and a concomitant loss of privilege (Mann v Carnell (1999) 201 CLR 1; Osland v Secretary to the Department of Justice
(2008) 234 CLR 275). Where parties in motion proceedings disclose the substance of otherwise privileged legal advice from their legal
representatives, in the form of submissions to advance their case, it is difficult to comprehend that fairness and consistency would not
permit them to “cherry pick” those parts of the advice that they received without being required to disclose the whole of the advice.’

RS 25, 2024, D1 Rule 6­15

The procedure of adducing evidence by way of hearsay evidence in the main affidavit, supported by so­called ‘confirmatory affidavits’ by
the witnesses who should have provided the necessary details, but who merely sought to confirm what was said in the main affidavit
‘insofar as reference [has been] made to me’, was criticized by the Supreme Court of Appeal and described as a ‘slovenly practice’. 8 1
See further the notes to rule 6(15) below.
The rule is that the necessary allegations upon which the applicant relies must appear in the founding affidavit, 8 2 as the applicant will
not generally be allowed to supplement the founding affidavit by adducing supporting facts in a replying affidavit. 8 3 See further the notes
to subrule (5)(e) s v ‘Deliver a replying affidavit’ below.

RS 25, 2024, D1 Rule 6­16

In Booth and Others NNO v Minister of Local Government, Environmental Affairs and Development Planning 8 4 a submission made on
behalf of the respondent that a contention made on behalf of the applicant was not open to him on the papers as the point had not been
taken in the founding affidavit or even in the replying affidavit, was upheld, the court adding that the point was not even mentioned in the
heads of argument filed on behalf of the applicant. 8 5
The source of the deponent’s information must be given. In the case where the application is brought personally, there is an initial
assumption in most cases that the facts are within the applicant’s knowledge, while the converse is true where it is brought in a
representative capacity. In the latter case the affidavit usually contains a statement that the facts are within the deponent’s
knowledge, 8 6 but such a statement is not essential 8 7 nor is it conclusive. 8 8 Each case has to be decided on its own facts and
circumstances. Thus, in FirstRand Bank Ltd v Kruger 8 9 the key issue in an unopposed application, brought on long­form notice of motion,
by a financial institution as credit provider against a defaulting credit receiver in relation to a credit agreement entered between the
parties and subject to the National Credit Act 34 of 2005 (‘the NCA’), was whether the deponent to the founding affidavit had set out
enough facts to demonstrate personal knowledge. The only basis upon which the deponent was claiming personal knowledge was by virtue
of the position he held as commercial recoveries manager of the applicant; not that he had been involved in any attempt to recover the
alleged debt or that he had accessed any of the bank’s records. Information obtained from other individuals and on which he relied

RS 25, 2024, D1 Rule 6­17

was not confirmed by affidavits attested to by those persons. It was found 9 0 that ‘the deponent, while having the trappings of authority
in the department, does not claim to have been personally involved in the process of recovering the debt, let alone having personally
accessed the bank’s records, accounts or other relevant documents . . . the deponent left it unclear as to what he personally did and
what information was provided to him by others or from where they in turn might have sourced it’. After addressing the impact of s 3(1) of
the Law of Evidence Amendment Act 45 of 1988 in regard to the admissibility of hearsay evidence, and finding of assistance a body of
case law dealing with applications for summary judgment, 9 1 the court concluded: 9 2
‘Under the exceptions to the hearsay rule the inherent difficulties of producing every individual who dealt with the credit receiver and made
each entry reflected in the account in question would in my view, together with the other factors already mentioned regarding probity and
reliability, entitle an applicant credit grantor seeking judgment in an unopposed matter to rely on —
(a) the evidence of a person who exercises custody and control of the documents in issue to introduce them into evidence through
the founding affidavit provided such allegation is made, or appears from the contents of the affidavit as a whole, and provided the
agreements are attached and are alleged to be true copies. This would usually be a bank manager or an official holding the
position of a recoveries manager;
(b) the evidence of a person who has personal knowledge of the current status of the credit receiver’s account by reason of having
access to the account and being involved in the present management of the account or collection process, in respect of the
allegations contained in the founding affidavit regarding the current outstanding balance. This would be subject to the terms of the
agreement which may permit a certificate of indebtedness to constitute prima facie proof, provided it is signed by a designated
official at the financial institution and provided further that the court is otherwise satisfied that such person would, in the ordinary
course, have personally accessed the records, accounts and other relevant records of the respondent and provided the certificate
is otherwise reliable. See generally Saldulker JA in Rees 9 3 para 14; Maharaj v Barclays National Bank Ltd 1976 (1) SA 418 (A) at
424E–F; and Wallis J (at the time) in Shackleton Credit Management (Pty) Ltd v Microzone Trading 88 CC and Another 2010 (5) SA 112
(KZP) para 13, approving the requirement in Standard Bank of SA Ltd v Secatsa Investments (Pty) Ltd and Others 1999 (4) SA 229
(C) at 235A — that the deponent at least has personal knowledge of certain of the relevant facts;
(c) the evidence of a person who positively attests that notice was properly sent to the respondent under either s 129(1) or s
86(10) of the NCA.’
If an affidavit sets out facts based on hearsay information, the deponent must state that the allegations of fact are true to the best of
his information, knowledge and belief and state the basis of his knowledge or belief; 9 4 and failure to state the source of the information or
grounds of belief in the original affidavit is an irregularity that cannot be cured by stating them in a replying affidavit. 9 5 It does not follow,
however,

RS 25, 2024, D1 Rule 6­18

© 2018 Juta andthe
that Company (Pty)
court is Ltd. to accept such hearsay evidence, even if the source
obliged Downloaded : Frigrounds
and the Apr 25 2025 15:31:26
for the GMT+0200
belief (South Africa
are furnished. 96 Standard Time)
The admission of hearsay evidence is governed by s 3 of the Law of Evidence Amendment Act 45 of 1988 which gives the court a wide
 If an affidavit sets out facts based on hearsay information, the deponent must state that the allegations of fact are true to the best of
his information, knowledge and belief and state the basis of his knowledge or belief; 9 4 and failure to state the source of the information or
grounds of belief in the original affidavit is an irregularity that cannot be cured by stating them in a replying affidavit. 9 5 It does not follow,
however,

RS 25, 2024, D1 Rule 6­18

that the court is obliged to accept such hearsay evidence, even if the source and the grounds for the belief are furnished. 96

The admission of hearsay evidence is governed by s 3 of the Law of Evidence Amendment Act 45 of 1988 which gives the court a wide
discretion whether or not to admit hearsay evidence. 9 7 As to hearsay matter in affidavits in urgent applications, see also the notes to
subrule (12)(a) s v ‘Urgent applications’ below.
Secondary evidence as to documents is inadmissible. 98

While it is not necessary to annex the original documentary evidence to affidavits filed in the office of the registrar in motion
proceedings, the originals must be available for inspection in court when the matter is called, not only at the request of the other side,
but also when required by the court. 9 9
It is not open to an applicant or a respondent to merely annex to his affidavit documentation and to request the court to have regard
to it. What is required is the identification of the portions thereof on which reliance is placed and an indication of the case which is sought
to be made out on the strength thereof. 100 It cannot be expected of a party

RS 25, 2024, D1 Rule 6­19

to trawl through lengthy annexures to the opponent’s affidavit and to speculate on the relevance of facts contained in such
annexures. 101 Trial by ambush cannot be permitted. 102 It is also improper for an applicant simply to attach a lengthy document to his
affidavit and then proceed to quote therefrom without any indication as to which paragraphs are indeed being quoted. 103 It cannot be
expected of the court, in preparation for the case, to struggle through what is often a quagmire of fine print to check whether the quotes
are in fact correct. 104
An inordinate delay in filing an answering affidavit, the regurgitation of statutory provisions without much attempt to explain how these
impact on the case, and the annexing of documents to the affidavit without properly identifying those portions on which reliance would be
placed are considerations justifying a costs order against an organ of state. 105
The affidavits should not unnecessarily burden the record of the application proceedings. They should therefore (a) promote orderly ventilation
of the real issues; (b) not contain irrelevancies; and (c) not be unnecessary prolix. 106
In Hlazi v Buffalo City Metro Municipality 107 the court, referring to Patmore v Patmore 108 and Visser v Visser, 109 stated:

RS 25, 2024, D1 Rule 6­20

‘[77] An affidavit containing unnecessary evidence has been held to constitute sufficient grounds to disallow costs to a successful party. Inordinate
prolixity in affidavits has been met with displeasure by the courts and rightly so.’
In terms of rule 67A(2)(c) the court may, in considering all relevant factors when awarding costs, have regard to unnecessary or prolix drafting
and unnecessary annexures.
An applicant is entitled to make any legal contention which is open to him on the facts even though it was not specifically raised or relied on
in the affidavits supporting the application. 110 This principle is subject to the proviso that its application should not be unfair to the
respondents. 111 This element is often subsumed under the further requirement that the principle can be applied only if all the relevant facts are
before the court. 112
Subrule (2): ‘Necessary or proper to give any person notice of such application.’ Notice of an application must, for example, be given to
the Master where it is necessary for him to report in applications for voluntary surrender, sequestration, rehabilitation and other matters under
the Insolvency Act 24 of 1936; 113 in applications for the winding­up of companies; 114 in applications for the winding­up of close
corporations; 115 and in applications affecting deceased estates or the property of minors or other persons under legal
disability. 116 Amendments to

RS 25, 2024, D1 Rule 6­21

the Insolvency Act 24 of 1936 and the Companies Act 61 of 1973 117 also require that notice of an application for sequestration or winding­up,
as the case may be, must be given to every registered trade union, the employees, the South African Revenue Service 118 and the debtor or
the company concerned. See further subrules (9) and (10) of this rule above and the notes to subrule (9) s v ‘A copy of every application . . .
must . . . be submitted to the Master’ below.
In addition it may be necessary or proper to give a person notice of an application, even if no relief is claimed against such person, if the
relief claimed is of such a nature that the rights or interests of the person may be affected by any order the court may make pursuant to the
application. 119 The principles relating to joinder apply in such cases. 120
Subrule (4)(a): ‘Every application brought ex parte.’ The phrase ex parte in this subrule contemplates the situation in which an application
is brought without notice to anyone, either because no relief of a final nature is sought against any person, or because it is not necessary to
give notice to the respondent. 121
An ex parte application is used: 122

(i) when the applicant is the only person who is interested in the relief which is being claimed; 123

(ii) where the relief sought is a preliminary step in the proceedings, e g applications to sue by edictal citation, for substituted service, to
attach to found or confirm jurisdiction;
(iii) where the nature of the relief sought is such that the giving of notice may defeat the purpose of the application, e g an Anton Piller­type
order; 124

RS 25, 2024, D1 Rule 6­22

(iv) where immediate relief, even though it may be temporary in nature, is essential because harm is imminent. In such cases the applicant will
often seek a rule nisi, the application then being in the nature of an ex parte application in terms of this subrule; 125
(v) where certain kinds of applications are customarily brought ex parte. In this regard the local practice of the various divisions of the High
Court differ. Thus, for example, applications for provisional sequestration and winding­up are brought ex parte in the Free State Division of
the High Court, Bloemfontein 126 and in the KwaZulu­Natal Division of the High Court, Pietermaritzburg and Durban; 127 in the Gauteng
Division of the High Court, Pretoria, such applications, unless based upon a nulla bona return, are not brought ex parte. 128
An applicant in an ex parte application must set forth concisely the nature and extent of the claim, the grounds upon which it is based and
upon which the court has jurisdiction to entertain the claim. 129
It has been held 130 that an ex parte application is not the appropriate procedure for the provisional winding­up of a body corporate
established in terms of the Sectional Titles Act 95 of 1986. In such instance there are numerous interested parties who in the ordinary course
would have been entitled to receive notice of the intended application. 131
As a general principle, an interdict to restrain or forbid an intended publication by a journalist must be brought on appropriate notice to the
journalist and not ex parte. 132

RS 25, 2024, D1 Rule 6­22A

Good faith is a sine qua non in ex parte applications. 133 It extends also to legal representatives. 134

If any material facts are not disclosed, whether they be wilfully suppressed or negligently omitted, 135 the court may on that ground alone
dismiss an ex parte application. 136 The court will also not hold itself bound by any order obtained under the consequent misapprehension of the
© 2018 Juta and Company (Pty) Ltd. Downloaded : Fri Apr 25 2025 15:31:26 GMT+0200 (South Africa Standard Time)
true position. 137 Among the factors which the court will take into account in the exercise of its true 138 discretion to grant or deny relief to a
litigant who has been remiss in his duty to disclose, are: 139 the extent to which the rule has been breached; the reasons for the
 RS 25, 2024, D1 Rule 6­22A

Good faith is a sine qua non in ex parte applications. 133 It extends also to legal representatives. 134

If any material facts are not disclosed, whether they be wilfully suppressed or negligently omitted, 135 the court may on that ground alone
dismiss an ex parte application. 136 The court will also not hold itself bound by any order obtained under the consequent misapprehension of the
true position. 137 Among the factors which the court will take into account in the exercise of its true 138 discretion to grant or deny relief to a
litigant who has been remiss in his duty to disclose, are: 139 the extent to which the rule has been breached; the reasons for the

RS 25, 2024, D1 Rule 6­22B

non­disclosure; 140the extent to which the first court might have been influenced by proper disclosure; the consequences, from the point of
doing justice between the parties, of denying relief to the applicant on the ex parte order; and the interest of innocent third parties such as
minor children, for whom protection was sought in the ex parte application. 141 The test is objective. 142
Even though partially successful an applicant may be ordered to pay the costs of the application if he has negligently failed to disclose
material facts. 143 In Schlesinger v Schlesinger 144 an order obtained ex parte was set aside with costs on the scale as between attorney and
client against the original applicant for displaying a reckless disregard of a litigant’s duty to a court in making a full and frank disclosure of all
known facts that might influence the court in reaching a just conclusion. If the failure to disclose is the fault of the attorney acting for a party,
he may be ordered to pay the costs de bonis propriis. 145
After a rule nisi has been discharged by default of appearance by the applicant, the court or a judge may revive the rule and direct that the
rule so revived need not be served again. 146
On the return date of an opposed rule nisi, the court must decide what relief has to be granted based on the evidence adduced by the
parties. Obviously, the evidence is the legally relevant evidence. It is well established that a court should not pronounce upon issues that it is
not called upon to pronounce and that are not properly and fully argued. So much the more when no relief is claimed concerning such issue. It
would be imprudent and inappropriate for a court do to so. 147 It is also well established that because in motion proceedings the papers stand
as the pleadings and evidence, the relevance of the evidence offered is dependent on its cogent connection with the relief being sought as
defined in the notice of motion. 148 According to the circumstances, the court should then either discharge the rule, confirm it, vary it or make
such order thereon as shall seem just to the court. 149
Subrule (4)(a)(i): ‘Supported by an affidavit.’ This subrule, read with subrule (1), makes it clear that every ex parte application must be
supported by an affidavit. See further the notes to subrule (1) s v ‘Supported by an affidavit’ and the notes to subrule (4)(a) s v ‘Every
application brought ex parte’ above.
Subrule (4)(a)(iii): ‘Set forth the form of the order sought . . . as near as may be in accordance with Form 2 of the First Schedule.’
The relief claimed must be adequately set out in the notice of motion. In practice a prayer for ‘further and/or alternative relief’ is usually
included. In Hirschowitz v Hirschowitz 150 Vieyra J held 151 that the ‘prayer for alternative relief is to my mind,

RS 25, 2024, D1 Rule 6­22C

in modern practice, redundant and mere verbiage. Whatever the court can validly be asked to order on papers as framed, can still be asked
without its presence. It does not enlarge in any way “the terms of the express claim”’. In Chao v Gomes 152 Lamont J held that despite the fact
that the prayer for further and/or alternative relief has been held to be mere surplusage, ‘a prayer containing the words and seeking relief in
accordance with them is invariably inserted in every civil process issued as if some magic attached to the words’. 153 The effect of the prayer is
not unlimited. 154 The established position is that:
(a) the prayer can be invoked to justify an order in terms other than that set out in the notice of motion where that order is clearly indicated
in the founding (and other) affidavits and is established by satisfactory evidence on the papers; 155
(b) relief under the prayer cannot be granted if it is substantially different from that specifically claimed, unless the basis therefor has been
fully canvassed, and the party against whom such relief is to be granted has been fully apprised that relief in this particular form is being
sought and has had the fullest opportunity of dealing with the claim for the relief being pressed. 156
In appropriate circumstances the use of a wrong form may be condoned. See the notes to subrule (5)(a) below.

RS 24, 2024, D1 Rule 6­23

Subrule (4)(a): Proviso.

(a) In terms of paragraph (i) of the proviso an ex parte application brought as an urgent application must indicate the basis on which the
application is deemed to be urgent. The application must also indicate the provisions of any law relied upon by the applicant. In terms of
paragraph (iii) of the proviso the provisions of rule 6(12) relating to urgent applications may be applied in so far as is necessary. Rule 6(12)
(b) provides that, apart from setting forth explicitly the circumstances which render the application urgent, the reasons why the applicant
claims that it could not be afforded substantial redress at a hearing in due course must be set forth in the affidavit supporting the
application. The latter requirement is not a requirement under paragraph (i) of the proviso but, having regard to paragraph (iii) of the
proviso and rule 6(12)(b), should, if necessary, be dealt with by an applicant bringing an ex parte application as an urgent one. See also
the notes to subrule (12)(a) s v ‘May dispense with the forms and service provided for in these rules’ below.
(b) In terms of paragraph (ii) of the proviso the application may be brought before a judge in chambers. This is an exception to the general
principle that proceedings in any superior court have to be carried on in open court. 157 It is submitted that this provision should be
applied with restraint and, as a general rule, be reserved for special cases as directed by the judge dealing with the urgent court roll.
(c) As pointed out under (a) above, the provisions of rule 6(12) relating to urgent applications may be applied in so far as is necessary in
terms of paragraph (iii) of the proviso. Rule 6(12)(b) is dealt with in (a) above. Rule 6(12)(a) provides that in urgent applications the court
or a judge may dispense with the forms and service provided for in these rules and may dispose of such matter at such time and place and
in such manner and in accordance with such procedure (which shall as far as practicable be in terms of these rules) as it deems fit. Thus,
the court (or judge in chambers) hearing an ex parte application brought as an urgent one may apply rule 6(12)(a) in so far as is
necessary. See further the notes to subrule (12)(a) s v ‘May dispense with the forms and service provided for in these rules’ below.
Should the occasion arise, rule 6(12)(c), which provides that a person against whom an order was granted in such person’s absence in an
urgent application may by notice set down the matter for reconsideration of the order, could be applied in so far as is necessary.

RS 24, 2024, D1 Rule 6­24

Subrule (4)(b)(i): ‘Any person having an interest which may be affected.’ There is nothing inherently wrong or contrary to public policy in
an interested party opposing an ex parte application which has come to his notice fortuitously or by informal notice. This subrule provides for
this very contingency. 158
Subrule (4)(b)(ii): ‘The court hearing the matter may . . . .’ This subrule deals with the powers of the court hearing an ex parte
application, including an ex parte application which is brought as an urgent one, under circumstances where an application to oppose the
application has been made in terms of subrule (4)(b)(i). As to the filing of further affidavits, see the notes to subrule (5)(e) s v ‘May in its
discretion permit the filing of further affidavits’ below.
Subrule (5)(a): ‘As near as may be in accordance with Form 2(a) of the First Schedule.’ The provisions of this subrule are
peremptory 159 but in appropriate circumstances the use of a wrong form may be condoned. The use of Form 2 in circumstances where Form
2(a) is appropriate, will not necessarily result in the notice of motion being a nullity which cannot be condoned. 160
An urgent application is an application in terms of the subrule and Form 2(a) must be used with such adaptation as may be required by the
circumstances of the case. 161 If a matter is ​sufficiently urgent complete deviation from the form may be justified. 162
‘Shall be served upon every party.’ Service of any document initiating application proceedings must in terms of rule 4(1) be effected by the
sheriff. Service by the sheriff is not necessary in interlocutory applications where there is already an attorney of record for the respondent. 163
Subrule
© 2018 (5)(b)(i):
Juta and Company‘An
(Pty)electronic
Ltd. mail address, if available.’ If an electronic mail address
Downloaded : Fri is
Aprnot
25 available the GMT+0200
2025 15:31:26 only other(South
address allowed
Africa by Time)
Standard
the subrule for acceptance of notices by and service of documents on the applicant is the one appointed by it within 25 kilometers of the office
of the registrar. In addition, subrule (5)(b)(ii) requires the applicant to state its postal or facsimile addresses, where available. The subrule, and
 circumstances of the case. 161 If a matter is ​sufficiently urgent complete deviation from the form may be justified. 162

‘Shall be served upon every party.’ Service of any document initiating application proceedings must in terms of rule 4(1) be effected by the
sheriff. Service by the sheriff is not necessary in interlocutory applications where there is already an attorney of record for the respondent. 163
Subrule (5)(b)(i): ‘An electronic mail address, if available.’ If an electronic mail address is not available the only other address allowed by
the subrule for acceptance of notices by and service of documents on the applicant is the one appointed by it within 25 kilometers of the office
of the registrar. In addition, subrule (5)(b)(ii) requires the applicant to state its postal or facsimile addresses, where available. The subrule, and
subrule (5)(b)(ii), must be read together with rule 4A above, which provides, amongst other things, that service may be effected:
(a) by hand at the physical address for service provided, or
(b) by registered post to the postal address provided, or
(c) by facsimile or electronic mail to the respective addresses provided.
Subrule (5)(b)(iii): ‘Set forth a day, not less than 10 days.’ The period of 10 days in regard to the notification of intention to oppose the
application applies regardless of whether the notice of motion is served within or outside the jurisdiction of the court in which it was
issued. 164 The days are court days and must be calculated in terms of the definition of ‘court day’ in rule 1. Subrule (13) provides that in
applications against the State, etc, the dies allowed must be at least 15 days unless the court has specially authorized a shorter period.
Depending on the circumstances, a failure to state a date by when the notice of intention to oppose the application has to be delivered can
be condoned, even in the absence of an application for condonation. 165

RS 24, 2024, D1 Rule 6­25

Failure to allow for the dies prescribed by the rules may be condoned 166 and in urgent applications the court may in terms of rule 6(12)
dispense with the time periods prescribed in the rules.
The provisions regarding dies contained in this subrule do not apply to an application for a rule nisi since such an application (even on notice)
is in the nature of an ex parte application in terms of rule 6(4). 167
‘Will be set down for hearing on a stated day.’ This subrule ensures that a respondent is given notice of when the application will be heard.
Requiring notice of a stated day is not a formalistic application of procedural rules. The subrule, whilst procedural in nature, protects a
fundamental principle of fairness — that generally a person be afforded an opportunity to be heard before a court grants any relief against
it. 168 An omission to set out a stated day is fatal to the application. 169 A subsequent notice of set down cannot cure the defect. 170 A
sensible order is to postpone the application in order for the applicant to comply with the subrule. 171
‘Provided that.’ In terms of the first proviso to this subrule the days between 21 December and 7 January, both inclusive, shall not be counted
in the time allowed for the delivery of a notice of intention to oppose or of any affidavit. 172 In terms of the second proviso to this subrule the
first proviso does not apply to urgent applications brought under rule 6(12) and applications brought under rule 43.
Subrule (5)(d)(i): ‘An electronic mail address, if available.’ If an electronic mail address is not available the only other address allowed by
the subrule for acceptance of notices by and service of documents on the person who intends to oppose the application is the one appointed
by such person within 25 kilometers of the office of the registrar. The subrule, however, in addition, requires the person who intends to oppose
the application to state such person’s postal or facsimile addresses, where available. The subrule must be read together with rule 4A above,
which provides, amongst other things, that service may be effected:
(a) by hand at the physical address for service provided, or
(b) by registered post to the postal address provided, or
(c) by facsimile or electronic mail to the respective addresses provided.

RS 24, 2024, D1 Rule 6­26

Subrule (5)(d)(ii): ‘Within fifteen days of notifying the applicant of intention to oppose the application.’ Form 2(a) has been
amended 173 and the wording has been brought into line with that of the subrule. 174
If an answering affidavit is not delivered within the stipulated fifteen­day period, the applicant may within five days after the expiry of such
period apply to the registrar, in terms of rule 6(5)(f)(i), to allocate a date for the hearing of the application.
As a general rule, if an answering affidavit is delivered out of time, an extension of time or condonation should be sought 175 unless there is
an agreement between the parties. 176 This subrule, however, does not state that an answering affidavit which is delivered late is pro non
scripto without an application for an extension of time or for condonation. 177 If no prejudice is caused to any party and it is in the interests of
justice that the answering affidavit be taken into account, as would, for example, be the case where the applicant does not object to the
answering affidavit in terms of rule 30 and delivers a replying affidavit, the court should allow the affidavit in order to decide the case
unfettered by technicalities. 178
Notice of mediation. A respondent must, when delivering a notice of intention to oppose an application, or at any time thereafter, but not later
than the delivery of answering affidavit, serve on each applicant or the applicant’s attorneys, a notice indicating whether such respondent
agrees to or opposes referral of the dispute to mediation. 179 The notice must be substantially in accordance with Form 27 of the First Schedule
and must clearly and concisely indicate the reasons for the respondent’s belief that the dispute is or is not capable of being mediated. 180 The
notice must not be filed with the registrar. 181 See further the provisions of rule 41A below.
‘Deliver such person’s answering affidavit.’ In terms of rule 1 ‘deliver’ means to ‘serve copies on all parties and file the original with the
registrar’.
The requirements for a respondent’s answering affidavit, which deals with the allegations contained in the applicant’s founding affidavit, are
the same as for that of the applicant. If the respondent’s affidavit in answer to the applicant’s founding affidavit fails to admit or deny, or
confess and avoid, allegations in the applicant’s affidavit, the court will, for the purposes of the application, accept the applicant’s allegations
as correct. 182

RS 25, 2024, D1 Rule 6­27

An affidavit is not a pleading. A respondent cannot content himself in his answering affidavit with bare or unsubstantiated denials 183 unless,
of course, there is no other way open to the respondent and nothing more can be expected of him. 184 A statement of lack of knowledge
coupled with a challenge to the applicant to prove part of his case does not amount to a denial of the averments by the applicant. 185 If the
respondent in such a case requires oral evidence he can apply in terms of subrule (5)(g) to cross­examine witnesses. 186 It is permissible for a
respondent, without advancing evidence of facts under oath, to seek to impugn the veracity of the applicant’s affidavits by examining their
inherent validity or probity in all the proved circumstances. 187 The respondent must, however, eschew ‘indignant argument and expostulation’ in
his answering affidavit. 188
Subrule (5)(d)(iii): ‘Intends to raise any question of law only.’ A respondent should, generally, file his answering affidavit on the merits at
the same time as he takes a preliminary objection on a point of law. 189 Should the respondent choose not to file an answering affidavit in
response to the applicant’s allegations but to take a legal point only, the court is faced with two unsatisfactory alternatives should the
objection fail. The first is to hear the case without giving the respondent an opportunity to file an answering affidavit on the merits, something
the court would be ‘most reluctant’ to do. The second is to grant a postponement to enable the respondent to prepare and file an answering
affidavit, a course which gives rise to an undue protraction of the proceedings and a piecemeal handling of the matter. 190 It has been
suggested 191 that a respondent should be given the opportunity to file an answering affidavit where the court is satisfied that the respondent
was not acting mala fide, where an adequate explanation for the failure to file an affidavit on the merits is given, where justice demands that
the respondent should have further time for the purpose of presenting his case and where the disadvantages to the applicant of a
postponement can be compensated by an appropriate order as to costs.

RS 25, 2024, D1 Rule 6­28

192
© 2018AJuta
notice
and in terms (Pty)
Company of this subrule is not a pleading and cannot be excepted Downloaded
Ltd. to under rule: Fri
23.Apr 25 2025 15:31:26 GMT+0200 (South Africa Standard Time)
If the respondent relies exclusively on the notice in terms of this subrule, the allegations in the founding affidavit must be taken as
 the respondent should have further time for the purpose of presenting his case and where the disadvantages to the applicant of a
postponement can be compensated by an appropriate order as to costs.

RS 25, 2024, D1 Rule 6­28

A notice in terms of this subrule is not a pleading and cannot be excepted to under rule 23. 192

If the respondent relies exclusively on the notice in terms of this subrule, the allegations in the founding affidavit must be taken as
established facts by the court. 193 The court should not be led astray by the arguments contained in the respondent’s notice in terms of rule
6(5)(d)(ii), and should not accept it uncritically. The court’s central role in the identification of issues is important. It is only after careful
thought has been given to a matter that the true issue for determination can be properly identified. That task should never be left solely to the
parties or their legal representatives. 194
A respondent who files an affidavit on the merits is entitled to make any legal contention open to him on the facts as they appear on the
affidavits, 195 and notice of such legal contention need not be given in terms of the subrule, provided that the raising of the legal contention is
not, in the circumstances, unfair to the applicant. 196 There are a number of cases that recognize the right of a respondent, in spite of having
filed an answering affidavit, to raise an objection in limine that the founding affidavit does not make out a prima facie case for the relief
claimed. 197 In most cases it is suggested that the approach to be adopted by the court in determining the validity of the point in limine is
similar to that adopted in deciding an exception to a pleading in that (a) the founding affidavits alone fall to be considered; and (b) the
averments in those affidavits must be accepted as being true. 198 There is, however, one important difference: unlike pleading, an affidavit
contains evidence and not only allegations of fact, and what might be sufficient in a summons may be insufficient in a founding affidavit. 199 It
has accordingly been suggested that the analogy with the exception procedure may be inappropriate and that the comparison should rather be
with an application for absolution from the instance in a trial action. 200 In Louis Pasteur Holdings (Pty) Ltd v Absa Bank Ltd 201 the Supreme
Court of Appeal held that rule 33(4) does not apply to applications but that the High Court may deal with separate issues in applications in
limine and that it may, in its inherent jurisdiction, apply to them a procedure similar to the one in rule 33(4). This must, however, be done with
circumspection. 202
Subrule (5)(e): ‘Within 10 days . . . deliver a replying affidavit.’ For the late delivery of a replying affidavit, see the notes to rule 6(5)(d)(ii)
s v ‘‘Within fifteen days of notifying the applicant of intention to oppose the application’ above in regard to the late delivery of an answering
affidavit, which apply mutatis mutandis to the late delivery of a replying affidavit.

RS 25, 2024, D1 Rule 6­29

In terms of rule 1 ‘deliver’ means to ‘serve copies on all parties and file the original with the registrar’.
All the necessary allegations upon which the applicant relies must appear in his founding affidavit, as he will not generally be allowed to
supplement the affidavit by adducing supporting facts in a replying affidavit. 203 This is, however, not an absolute rule for the court has a
discretion, which must be exercised judicially, to allow new matter in a replying affidavit in exceptional circumstances, giving the respondent the
opportunity to deal with it in a second set of answering affidavits. 204 In the exercise of this discretion a court should in particular have regard
to: (i) whether all the facts necessary to determine the new matter raised in the replying affidavit were placed before the court; (ii) whether
the determination of the new matter will prejudice the respondent in a manner that could not be put right by orders in respect of postponement
and costs; (iii) whether the new matter was known to the applicant when the application was launched; and (iv) whether the disallowance of
the new matter will result in unnecessary waste of costs. 205 Thus, a distinction must be drawn between a case in which the new material is
first brought to light by the applicant who knew of it at the time

RS 25, 2024, D1 Rule 6­30

when his founding affidavit was prepared and a case in which facts alleged in the respondent’s answering affidavit reveal the existence or
possible existence of a further ground for relief sought by the applicant. In the latter type of case the court would obviously more readily allow
an applicant in his replying affidavit to utilize and enlarge upon what has been revealed by the respondent and to set up such additional ground
for relief as might arise therefrom. 206 The court will, however, not allow the introduction of new matter if the new matter sought to be
introduced amounts to an abandonment of the existing claim and the substitution therefor of a fresh and completely different claim based on a
different cause of action. 207 Nor will the court permit an applicant to make a case in reply when no case at all was made out in the original
application. 208
The right to personal freedom is so fundamental that a detainee should be allowed to seek in motion proceedings an order for his release
based on a founding affidavit in which he alleges that he is being held by the respondent, notwithstanding (and by means of exception to) the
general requirement that an applicant must disclose his complete case in the founding affidavit and the restriction on the number of sets of
affidavits usually accepted in motion proceedings. 209
An applicant is entitled to introduce further corroborating facts by means of a replying affidavit should the contents of the answering
affidavit call for such facts. 210
A replying affidavit should not be unnecessarily prolix or repetitive. Thus, in Minister of Environmental Affairs and Tourism v Phambili Fisheries
(Pty) Ltd; Minister of Environmental Affairs and Tourism v Bato Star Fishing (Pty) Ltd 211 Schutz JA said:
‘There is one other matter that I am compelled to mention — replying affidavits. In the great majority of cases the replying affidavit should be by
far the shortest. But in practice it is very often by far the longest — and the most valueless. It was so in these reviews. The respondents, who
were the applicants below, filed replying affidavits of inordinate length. Being forced to wade through their almost endless repetition when the
pleading of the case is all but over brings about irritation, not persuasion. It is time that the courts declare war on unnecessarily prolix replying
affidavits and upon those who inflate them.’
In Van Zyl v Government of the Republic of South Africa 212 Harms ADP, after quoting Schutz JA, said:
‘A reply in this form is an abuse of the court process and instead of wasting judicial time in analysing it sentence by sentence and paragraph by
paragraph such affidavits should not only give rise to adverse costs orders but should be struck out as a whole . . . mero motu . . .’
Rule 67A(2)(c) provides that in considering all relevant factors when awarding costs, the court may have regard to unnecessary or prolix
drafting and unnecessary annexures.

RS 25, 2024, D1 Rule 6­31

‘May in its discretion permit the filing of further affidavits.’ There are normally three sets of affidavits in motion proceedings. 213 The court
will exercise its discretion in permitting the filing of further affidavits against the backdrop of the fundamental consideration that a matter should
be adjudicated upon all the facts relevant to the issues in dispute. 214 It is for the court to exercise the discretion. The registrar is not
empowered to exercise it and a party cannot take it upon himself to simply file further affidavits without first having obtained the leave of the
court to do so. 215 It has been held 216 that where further affidavits are filed without the leave of the court, the court can regard such
affidavits as pro non scripto. While the general rules regarding the number of sets and proper sequence of affidavits should ordinarily be
observed, some flexibility must necessarily also be permitted. 217 It is only in exceptional circumstances that a fourth set of affidavits will be
received. 218 Special circumstances may exist where something unexpected or new emerged from the applicant’s replying affidavit. 219
It is essentially a question of fairness to both sides as to whether or not further sets of affidavits should be permitted. 220 There should in
each case be a proper and satisfactory explanation, which negatives mala fides or culpable remissness, as to why the facts or information had
not been put before the court at an earlier stage, 221 and the court must be satisfied that no

RS 25, 2024, D1 Rule 6­32

prejudice is caused by the filing of the additional affidavits which cannot be remedied by an appropriate order as to costs. 222 The tactic of
holding back on evidence in the hope that the other side will first commit itself to an untruthful version which can be resoundingly demolished in
further affidavits has attracted the opprobrium of the court in Nick’s Fishmonger Holdings (Pty) Ltd v Fish Diner In Bryanston CC. 223
The factors that the court will consider are the following:
(a) The reason why the evidence was not produced timeously.
© 2018 Juta and Company (Pty) Ltd. Downloaded : Fri Apr 25 2025 15:31:26 GMT+0200 (South Africa Standard Time)
(b) The degree of materiality of the evidence.
 prejudice is caused by the filing of the additional affidavits which cannot be remedied by an appropriate order as to costs. The tactic of
holding back on evidence in the hope that the other side will first commit itself to an untruthful version which can be resoundingly demolished in
further affidavits has attracted the opprobrium of the court in Nick’s Fishmonger Holdings (Pty) Ltd v Fish Diner In Bryanston CC. 223
The factors that the court will consider are the following:
(a) The reason why the evidence was not produced timeously.
(b) The degree of materiality of the evidence.
(c) The possibility that it may have been shaped to ‘relieve the pinch of the shoe’.
(d) The balance of prejudice to the applicant if the application is refused and the prejudice to the respondent if it is granted.
(e) The stage which the particular litigation has reached. Where judgment has been reserved after all the evidence has been heard and,
before judgment is delivered, an applicant applies for leave to place further evidence before the court, it may well be that he will have a
greater burden because of factors such as the increased possibility of prejudice to the respondent, the need for finality, and the
undesirability of a reconsideration of the whole case, and perhaps also the convenience of the court.
(f) The ‘healing balm’ of an appropriate order as to costs.
(g) The general need for finality in judicial proceedings.
(h) The appropriateness, or otherwise, in all the circumstances, of visiting the fault of the attorney upon the head of his client. 224

If the court is satisfied on these points it will generally incline towards allowing the affidavits to be filed. 225

If an affidavit is tendered both late and out of its ordinary sequence, the party tendering it is seeking, not a right, but an indulgence from
the court. Such party must then explain why it is out of time and satisfy the court that in all the circumstances of the case it should be
received. 226
Although it is the accepted modus operandi for parties formally to seek to amplify their affidavits by the filing of further affidavits, there is
some indirect authority that where the parties rely on a statement of agreed issues, they may amplify those issues by way of a separate
agreement instead of filing further affidavits. 227

RS 25, 2024, D1 Rule 6­33

Subrule (5)(f)(i): ‘Within five days of the expiry thereof apply to the registrar.’ If neither an answering affidavit nor a notice referring a
question of law to be raised has been filed, an applicant may in terms of this subrule apply to the registrar to allocate a date for hearing of the
application. An applicant is not entitled to place a matter on the unopposed roll for hearing unless the registrar has on application to him in
terms of the subrule, allocated a date for the hearing of the application. 228 An applicant’s right to set the matter down is not limited to the
five­day period laid down in the subrule. An applicant is entitled to apply to the registrar for a date of hearing on the unopposed roll even after
expiry of the five­day period. 229
Subrule (5)(f)(ii): ‘Apply to the registrar to allocate a date for the hearing of the appli​cation.’ A litigant is not entitled to place a matter
on the opposed roll for hearing unless the registrar has on application to him in terms of the subrule, allocated a date for the hearing of the
application. 230
The applicant is dominus litis and, in selecting a date, need not consult the respondent. 231

Subrule (5)(g): ‘Where an application cannot properly be decided on affidavit.’ ‘Motion proceedings, unless concerned with interim relief,
are all about the resolution of legal issues based on common cause facts. Unless the circumstances are special they cannot be used to resolve
factual issues because they are not designed to determine probabilities’. 232 It is well established that if the material facts are in dispute and
there is no request for the hearing of oral evidence, a final order will only be granted on notice of motion if the facts as stated by the
respondent together with the facts alleged by the applicant that are admitted by the respondent, justify such an order 233 unless, of course,
the court is satisfied that the respondent’s

RS 25, 2024, D1 Rule 6­34

version consists of bald or uncreditworthy denials, raises fictitious disputes of fact, is so far­fetched or so clearly untenable or so palpably
implausible as to warrant its rejection merely on the papers. 234
If in such a case the court is satisfied as to the inherent credibility 235 of the applicant’s factual averment, it may proceed on the basis of
the correctness thereof and include this fact among those upon which it determines whether the applicant is entitled to the final relief
sought. 236

RS 25, 2024, D1 Rule 6­35

The subrule is of wide import and empowers the court, where an application cannot properly be decided on affidavit, to make such order as it
deems fit with a view to ensuring a just and expeditious decision. 237 As a general rule an application for the hearing of oral evidence must be
made in limine and not once it becomes clear that the applicant is failing to convince the court on the papers or on appeal. 238 The
circumstances must be exceptional before a court will permit an applicant to apply in the alternative for the matter to be referred to evidence
should the main argument fail. 239 It is undesirable that a court mero motu orders a referral to oral evidence. 240
The ambit of the subrule is not restricted to cases where oral evidence is called for to resolve disputes of fact. 241 Thus, the subrule also
applies in the case of unopposed motions where ex hypothesi there can be no dispute of fact. The court is, for example, entitled in an
unopposed application for the variation of a custody order to invoke the rule and call for viva voce evidence. 242 A party will, however, not be
allowed to lead oral evidence to make out a case which is not already made out in his affidavits. 243
If a party to an application requires the evidence of a person who is unwilling or unavailable to make an affidavit, the court may be
approached under this subrule for leave to ​subpoena such a person for the purpose of giving viva voce evidence. 244 The court will, however,
refuse such an application where evidence is requested to be given in circumstances which amounted to a fishing expedition. 245
A party who is obliged by law to bring proceedings by way of notice of motion and who seeks to discharge an onus of proof which rests upon
him by asking for an opportunity to adduce oral evidence or to cross­examine deponents to answering affidavits, should not be lightly deprived
of that opportunity. 246

RS 25, 2024, D1 Rule 6­36

If the respondent in his answering affidavit states that he can lead no evidence to dispute the truth of the applicant’s statements and puts
the applicant to the proof thereof, the cross­examination of witnesses may properly be ordered in terms of the subrule. 247
If a respondent made averments which, if proved, would constitute a defence to the applicant’s claim, but is unable to produce an affidavit
containing allegations which prima facie establish that defence, the respondent is entitled to invoke this subrule. 248 It would, however, be
essential in such a situation for the deponent to the respondent’s answering affidavit to:
(a) set out the import of the evidence which is proposed to be elicited (by way of cross­examination of the applicant’s deponents or other
witnesses);
(b) explain why the evidence is not available;
(c) most importantly, satisfy the court that there are reasonable grounds for believing that the defence would be established. 249

The Supreme Court of Appeal has cautioned that a court should be astute to prevent an abuse of its process in such a situation by an
unscrupulous litigant intent only on delay or a litigant intent on a fishing expedition to ascertain whether there might be a defence without there
being any credible reason to believe that there is one. 250
In general terms it can be said that oral evidence in terms of the subrule should be allowed if there are reasonable grounds for doubting the
correctness of the allegations made by the applicant. 251 In reaching a conclusion in this regard, facts peculiarly within the knowledge of the
applicant which cannot for that reason be directly contradicted or refuted by the other party are to be carefully scrutinized. 252
© 2018The
Jutaaforegoing
and Company (Pty)not,
does Ltd. however, detract from the fact that in practice the
Downloaded
presence: of
FriaApr 25 2025
dispute of15:31:26 GMT+0200
fact in an (South
opposed Africa Standard
application, and Time)
the nature thereof, will often be the determining consideration in deciding whether viva voce evidence should be ordered. 253
 being any credible reason to believe that there is one. 250

In general terms it can be said that oral evidence in terms of the subrule should be allowed if there are reasonable grounds for doubting the
correctness of the allegations made by the applicant. 251 In reaching a conclusion in this regard, facts peculiarly within the knowledge of the
applicant which cannot for that reason be directly contradicted or refuted by the other party are to be carefully scrutinized. 252
The aforegoing does not, however, detract from the fact that in practice the presence of a dispute of fact in an opposed application, and
the nature thereof, will often be the determining consideration in deciding whether viva voce evidence should be ordered. 253

RS 25, 2024, D1 Rule 6­37

The ‘principal ways’ in which a dispute of fact may arise are set out as follows in Room Hire Co (Pty) Ltd v Jeppe Street Mansions (Pty)
Ltd: 254
(i) When the respondent denies all the material allegations made by the various deponents on the applicant’s behalf, and produces or will
produce, positive evidence by deponents or witnesses to the contrary. He may have witnesses who are not presently available or who,
though adverse to making an affidavit, would give evidence viva voce if subpoenaed.
(ii) When the respondent admits the applicant’s affidavit evidence but alleges other facts which the applicant disputes.
(iii) When the respondent concedes that he has no knowledge of the main facts stated by the applicant, but denies them, putting the
applicant to the proof and himself gives or proposes to give evidence to show that the applicants and his deponents are biased and
untruthful or otherwise unreliable, and that certain facts upon which the applicant relies to prove the main facts are untrue. The absence
of any positive evidence possessed by a respondent directly contradicting the applicant’s main allegations does not render the matter free
of a real dispute of fact.
In resolving to refer a matter to evidence a court has a wide discretion. 255 In every case the court must examine an alleged dispute of fact
and see whether in truth there is a real 256 dispute

RS 25, 2024, D1 Rule 6­38

of fact which cannot be satisfactorily determined without the aid of oral evidence; if this is not done a respondent might be able to raise
fictitious issues of fact and thus delay the hearing of the matter to the prejudice of the applicant. 257 The test is a stringent one that is not
easily satisfied. 258 Vague and insubstantial allegations are insufficient to raise the kind of dispute of fact that should be referred for oral
evidence. 259 If a respondent genuinely intends to raise a serious matter such as corruption as an issue, it must be based on fact not rumour,
innuendo or inference based only on speculation. 260 A finding of fraud should not be made on the basis of untested allegations in motion
proceedings if the allegations of fraud are denied on grounds that could not be described as far­fetched or untenable. 261
262
A bare denial of the applicant’s allegations in his affidavits will not in general be sufficient to generate a genuine or real dispute of fact. It
has been said that the court must take ‘a robust, common­sense approach’ to a dispute on motion and not hesitate to decide an issue

RS 25, 2024, D1 Rule 6­39

on affidavit merely because it may be difficult to do so. 263

This approach must, however, be adopted with caution and the court should not be
tempted to settle disputes of fact solely on the probabilities emerging from the affidavits without giving due consideration to the

RS 25, 2024, D1 Rule 6­40

advantages of viva voce evidence. 264

As a general rule, decisions of fact cannot properly be founded on a consideration of the probabilities unless the court is satisfied that there
is no real and genuine dispute on the facts in question, or that the one party’s allegations are so far­fetched or so clearly untenable or so
palpably implausible as to warrant their rejection merely on the papers, 265 or that viva voce evidence would not disturb the balance of
probabilities appearing from the affidavits. 266 This rule

RS 25, 2024, D1 Rule 6­41

applies not only to disputes of fact, but also to cases where an applicant seeks to obtain final relief on the basis of the undisputed facts
together with the facts contained in the respondent’s affidavits. 267 In the latter regard it has become known as the ‘Plascon Evans rule’,
referred to by the Constitutional Court in Democratic Alliance (as Third Intervening Party): In re Electoral Commission of South Africa v Minister
of Co­operative Governance and Traditional Affairs (African National Congress and others as Intervening Parties and Council for the
Advancement of the South African Constitution and others as amici curiae) 268 as follows: 269
‘The Plascon­Evans rule is that an application for final relief must be decided on the facts 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.’
It has been held 270 that a court should, in deciding disputed facts in application proceedings, always be cautious about deciding probabilities in
the face of conflicts of facts in the affidavits. This is so because affidavits are settled by legal advisers with varying degrees of experience, skill
and diligence, and a litigant should not pay the price for an adviser’s shortcomings.
Judgment on the credibility of the deponent, absent direct and obvious contradictions, should be left open. Nevertheless, the courts have
recognized reasons to take a stronger line to avoid injustice: 271 Mere assertions of witnesses do not of themselves need to be believed and
testimony which is contrary to all reasonable probabilities or conceded facts (i e testimony which no sensible man can believe) goes for nothing,
while the evidence of a single witness to a fact, there being nothing to throw discredit on it, cannot be disregarded.
‘The court may dismiss the application.’ The court will dismiss an application if the applicant should have realized when launching his
application that a serious dispute of fact, incapable of resolution on the papers, was bound to develop. 272 A party who is obliged by law to

RS 25, 2024, D1 Rule 6­42

bring proceedings by way of notice of motion, in the event of a conflict of fact arising on the papers which can be resolved only by oral
evidence, cannot be penalized on the basis that he should have anticipated the conflicts and proceeded in another way. 273 The court should
dismiss the application where there are fundamental disputes of fact on the papers and the applicant failed to make out a case for the relief
claimed. 274
It does not necessarily follow that because a dispute of fact is reasonably foreseeable that an application will always be dismissed with
costs. There may be circumstances present that will persuade a court to order the parties to go to trial together with an order that the costs
of the application be costs in the cause or that the costs stand over for determination at the trial. 275
A dismissal in terms of this subrule does not preclude a litigant from proceeding by way of action, and thus does not finally dispose of a
matter. 276
For a discussion of the question how rule 6(5)(g) operates in the context of a review application brought in terms of rule 53, see the notes
to that rule s v ‘Shall be by way of notice of motion’ below.
‘Or make such an order as it deems fit.’ If the facts are in dispute, the court has a discretion as to the future course of the proceedings. It
may dismiss the application with costs or order the parties to go to trial or order oral evidence in terms of the rules. 277 The three alternatives
are set out in the subrule as possible courses which the court may adopt. 278
‘With a view to ensuring a just and expeditious decision.’ In the exercise of its discretion under the subrule, the court should have regard
to the fact that ‘maklike en spoedige beslegting van ’n feitegeskil . . . gewoonlik as vereiste gestel (word) wanneer daar oorweeg word of daar
gebruik gemaak moet word van mondelinge getuienis by mosie­verrigtinge’. 279
‘In particular, but without affecting the generality of the aforegoing, it may direct.’ If there is a factual dispute, the function of the court
is to select the most suitable method of employing viva voce evidence for the determination of the dispute. 280 The subrule sets out three

© 2018 Juta and Company (Pty) Ltd. RS 25,

Downloaded : Fri Apr 25 2025 15:31:26 GMT+0200 2024,
(South D1Standard
Africa Rule 6­43
Time)
281
different courses which the court may adopt, but it is in explicit terms made clear that the discretion of the court is not thereby restricted.
 gebruik gemaak moet word van mondelinge getuienis by mosie­verrigtinge’. 279

‘In particular, but without affecting the generality of the aforegoing, it may direct.’ If there is a factual dispute, the function of the court
is to select the most suitable method of employing viva voce evidence for the determination of the dispute. 280 The subrule sets out three

RS 25, 2024, D1 Rule 6­43

281
different courses which the court may adopt, but it is in explicit terms made clear that the discretion of the court is not thereby restricted.
‘Oral evidence be heard on specified issues with a view to resolving any dispute of fact.’ The court will adopt this course where the
factual dispute is within a narrow compass and can be expeditiously disposed of. 282 The dispute of fact must be one between the parties and
not a dispute between one of the parties and his agent or representatives. 283 An order to refer a matter to oral evidence presupposes a
genuine dispute of fact. If an applicant chooses not to respond to the factual allegations put forward in the answering affidavit he does so at
his peril and runs the risk of the application to refer the matter to oral evidence being refused. 284
In exercising its discretion under the subrule, the court will to a large extent be guided by the prospects of viva voce evidence tipping the
balance in favour of the applicant. If on the affidavits the probabilities are evenly balanced, the court would be more inclined to allow the
hearing of oral evidence than if the balance were against the applicant. The more the scales are depressed against the applicant, the less likely
the court will be to exercise its discretion in favour of the applicant. Only in rare cases will the court order the hearing of oral evidence where
the preponderance of probability on the affidavits favour the respondent. 285
If a disputed application is settled on a basis which disposes of the merits except in so far as costs is concerned, the court should not hear
evidence to decide the disputed facts in order to decide who is liable for costs, but the court must, with the material at its disposal, make a
proper allocation of costs. 286
Since the hearing of oral evidence is intended to be on specified issues only, it is desirable that the court states in its order which issues will
be determined by the hearing of oral evidence and defines who may or must be called as witnesses. 287 The court must be on its guard not to
formulate its order in such a way that the hearing of oral evidence is, perhaps unintentionally, converted into a trial. 288 The fact that the court
orders oral evidence does not enlarge the scope of the inquiry, 289 but the ambit of the inquiry may be extended by the terms of reference and,
in special circumstances, also by the judge presiding at the hearing. 290

RS 25, 2024, D1 Rule 6­44

As a general rule an application to refer a matter to evidence must be made at the outset and not after argument on the merits, 291 but the
rule is not an inflexible one and a party is entitled to persist in his application without being precluded, when a dispute becomes apparent and
incapable of resolution on the papers, from asking for evidence viva voce. 292
A referral to oral evidence (or trial) is not merely there for the taking. A case ought to be made out for such a referral and a satisfactory
explanation ought to be provided as to why the applicant did not institute action instead of motion proceedings and whether the applicant did
not foresee the possibility of dispute of fact not capable of resolution on paper. 293
At the hearing of oral evidence the affidavits stand as evidence, save to the extent that they deal with disputes of fact. Once the disputes
have been resolved by oral evidence, the case is decided on the basis of that finding together with the affidavit evidence that is not in
dispute. 294 If there is a dispute, the oral evidence must prevail. 295 This differs from a referral to trial. 296 As to the latter, see the notes s v
‘Refer the matter to trial’ below.
If an order has been made referring an application for the hearing of oral evidence, it is open to the court, when the matter comes before it
for the hearing of such oral evidence, to hold that it is unnecessary to hear oral evidence and to decide the matter on the papers. 297 The
court will not lightly adopt such a course, but will do so where it is clear that the hearing of oral evidence will not affect the outcome of the
claim for substantive relief and will only lead to unnecessary delay and unnecessary costs being incurred. 298 The court to which the matter has
been referred for oral evidence does not, however, have the power to require the parties to address it on a number of legal points that it had
raised mero motu, and then decide the matter on those points without hearing oral evidence. In Fischer v Ramahlele 299 Theron JA stated:

RS 25, 2024, D1 Rule 6­45

‘[13] Turning then to the nature of civil litigation in our adversarial system, it is for the parties, either in the pleadings or affidavits (which serve the
function of both pleadings and evidence), to set out and define the nature of their dispute, and it is for the court to adjudicate upon those issues.
That is so even where the dispute involves an issue pertaining to the basic human rights guaranteed by our Constitution, for “(i)t is impermissible
for a party to rely on a constitutional complaint that was not pleaded”. There are cases where the parties may expand those issues by the way in
which they conduct the proceedings. There may also be instances where the court may mero motu raise a question of law that emerges fully from
the evidence and is necessary for the decision of the case. That is subject to the proviso that no prejudice will be caused to any party by its being
decided. Beyond that it is for the parties to identify the dispute and for the court to determine that dispute and that dispute alone.
[14] It is not for the court to raise new issues not traversed in the pleadings or affidavits, however interesting or important they may seem to it,
and to insist that the parties deal with them. The parties may have their own reasons for not raising those issues. A court may sometimes
suggest a line of argument or an approach to a case that has not previously occurred to the parties. However, it is then for the parties to
determine whether they wish to adopt the new point. They may choose not to do so because of its implications for the further conduct of the
proceedings, such as an adjournment or the need to amend pleadings or call additional evidence. They may feel that their case is sufficiently
strong as it stands to require no supplementation. They may simply wish the issues already identified to be determined because they are relevant
to future matters and the relationship between the parties. That is for them to decide and not the court. If they wish to stand by the issues they
have formulated, the court may not raise new ones or compel them to deal with matters other than those they have formulated in the pleadings
or affidavits.’
If the application is referred to oral evidence it can be justifiably expected of the respondent, if he has any confidence in his own version, to
reiterate that version in oral evidence and to submit that version to be tested by cross­examination. If there is a strong prima facie case in
favour of the applicant at the close of his case, the court is entitled to draw an adverse inference against the respondent should he fail to
testify in support of the allegation in his opposing affidavit that the applicant has no case whatsoever. 300
301
An order referring an application for the hearing of oral evidence is not appealable under s 16 of the Superior Courts Act 10 of 2013.
‘Order any deponent to appear personally or grant leave for him or any other person to be subpoenaed.’ The court in its order must set
out who may or must be called as witnesses and the parties are not entitled at will to subpoena witnesses they wish to call. 302 If a party is
desirous of calling a witness who has not made an affidavit, special leave has to be obtained from the judge and the name of the witness must
be included in the order. 303

RS 25, 2024, D1 Rule 6­46

This subrule provides the only manner in which the attendance of a witness may be secured in relation to an application. It does not permit a
party to an application on his own authority to cause the registrar to subpoena a witness to appear at the hearing of an application. Such
authority vests only in the court and it must grant leave for a person to be subpoenaed. 304
‘Refer the matter to trial.’ The court will refer a matter to trial if the dispute of fact is incapable of resolution on the papers and too wide­
ranging for resolution by way of referral to oral evidence. 305 In such instance it is essential that the issues be defined. 306 It is an alternative
procedure to dismissal of the application in such circumstances, and is appropriate where the applicant when launching his application could not
reasonably have foreseen that a serious dispute of fact, incapable of resolution on the papers, was bound to develop. 307
The question whether the court has the power to order a referral to trial mero motu has been described as one ‘not free from difficulty’ by
the Supreme Court of Appeal and has not yet been decided by that court. 308 At the trial a witness who gives evidence must do so in the
ordinary way. The witness should not be allowed to read from his affidavit in the motion proceedings. Such affidavits may be used for cross­
examination and as proof of admissions therein contained, but (save to the extent that they contain admissions) they have no ​probative value
and, in the absence of agreement, they do not stand as the witness’s evidence­in­chief, or supplement it. If, by agreement, the affidavits are
to be treated as such, it is unnecessary and a waste of time and costs for them to be read into the record. In this regard a referral to trial is
different to a referral to oral evidence. In the latter case the affidavits stand as evidence, save to the extent that they deal with disputes of
fact. Once the disputes have been resolved by oral evidence, the case is decided on the basis of that finding together with the affidavit
evidence that is not (Pty)
in dispute. 309
© 2018 Juta and Company Ltd. Downloaded : Fri Apr 25 2025 15:31:26 GMT+0200 (South Africa Standard Time)
If the court orders that a case brought to court on application should go to trial, the ordinary course is to make the costs of the application
 and, in the absence of agreement, they do not stand as the witness’s evidence­in­chief, or supplement it. If, by agreement, the affidavits are
to be treated as such, it is unnecessary and a waste of time and costs for them to be read into the record. In this regard a referral to trial is
different to a referral to oral evidence. In the latter case the affidavits stand as evidence, save to the extent that they deal with disputes of
fact. Once the disputes have been resolved by oral evidence, the case is decided on the basis of that finding together with the affidavit
evidence that is not in dispute. 309
If the court orders that a case brought to court on application should go to trial, the ordinary course is to make the costs of the application
abide the result of the action: or, at least, to give the party who has been ordered to pay the costs leave to reclaim them in the action. It is
only in exceptional circumstances that the court, in the exercise of its discretion, departs from this rule. 310
An occasion where costs will not be made costs in the cause is that where the applicant should have known that the proceedings brought by
him would be abortive: in such case he will be ordered to pay them himself. 311 If, on the other hand, it cannot be said that the

RS 25, 2024, D1 Rule 6­47

application would clearly be abortive, he will be ordered to pay the costs, even if the application is one to obtain a final order on motion. 312

If the respondent knows that a disputed issue of fact is involved but chooses to embark upon the merits and by so doing adds to the costs,
he may well be ordered (semble) to bear not merely a portion of his own costs, but to pay part of the costs of the applicant, if the court were
to order the matter to go to trial. 313
‘Directions as to pleadings or definition of issues, or otherwise.’ In case of referral to trial the court usually orders that the notice of
motion shall stand as a simple summons, the answering affidavit as a notice of intention to defend, that a declaration shall be delivered within a
fixed time and that the Uniform Rules dealing with further pleadings, discovery and the conduct of trials shall thereafter apply. 314
Subrule (6): ‘Make no order . . . but grant leave . . . to renew the application on the same papers.’ If no order is made on an application
or leave is granted to apply again on the same papers, the order is the equivalent of an order of absolution from the instance. 315 Dismissal or
refusal of an application amounts to a decision in favour of the respondent. 316 If an application is dismissed by reason of some procedural
defect, such as the existence of an irresoluble factual dispute, the order does not operate as a judgment for the respondent. 317 An order of
absolution is ordinarily not decisive of the issue raised; it decides nothing for or against either party. 318
Subrule (7)(a): ‘Bring a counter­application.’ Counter­applications are subject to the general principles applicable to applications. 319 Thus,
the court will dismiss a counter­application if the respondent when launching his counter­application was aware of a then existing and
irresoluble dispute of fact. 320
The notice of counter­application need not be in the form of a notice of motion but the respondent must set out the relief claimed in the
counter­application. 321
There is no bar in law or in the rules to a litigant endeavouring to obtain a remedy in a counter­application that is more expansive than, or
even unrelated to, relief sought in the main application. 322

RS 25, 2024, D1 Rule 6­48

A counter­application need not be served by the sheriff since there is already an attorney of record for the applicant (respondent in
reconvention) 323 and a notice of motion would seem to be unnecessary. 324
As a general rule (but the court has a discretion to depart from the rule) an application and a counter­application should be adjudicated pari
passu and if the application is unopposed, judgment thereon should be suspended pending finalization of an unliquidated counter­application. 325
Subrule (7)(b): ‘Postpone the hearing of the application.’ The principles applicable to an application for the grant of a postponement of an
application are the same as those that apply to trials. 326 See, in this regard, the excursus to rule 41 s v ‘Postponement’ below.
Subrule (8): ‘An order is granted ex parte.’ The provisions of this subrule only apply where an order has been granted against a person ex
parte and where a return day has been fixed. The subrule comes to the aid of a person who has been taken by surprise by an order granted ex
parte. The subrule does not apply where the return day of a rule nisi obtained ex parte has been extended with the knowledge or in the
presence of the persons affected thereby. 327 Subrule (12)(c) deals with a somewhat different situation and allows a person against whom an
order was granted in his absence in an urgent application to set the matter down on notice for reconsideration of the order.
‘May anticipate the return day.’ The rules do not provide substantively for the granting of a rule nisi by the court. The practice of doing so is,
nevertheless, firmly embedded in our procedural law. 328 This is recognized by implication in this subrule and in subrule (13) of this

RS 25, 2024, D1 Rule 6­49

rule. 329 The procedure of a rule nisi is usually resorted to in matters of urgency and where the applicant seeks interim relief in order adequately
to protect his immediate interests. 330 The procedure must be considered in conjunction with the provisions of subrule (12). 331 See further the
notes to subrule (12) below.
A return day may be anticipated under the subrule even if the order granted ex parte does not explicitly provide for the anticipation of the
return day. 332
Procedure by way of rule nisi in review proceedings is considered in the notes to rule 53(1) s v ‘All proceedings . . . shall be by way of notice
of motion’ below.
Rule 27(4) provides for the revival of a rule nisi which has been discharged by default of appearance. A rule nisi which had lapsed because of
the fulfilment of a resolutive condition cannot be revived in terms of rule 27(4). 333 See further the notes to rule 27(4) s v ‘A rule nisi has been
discharged by default of appearance’ below.
An opposed rule nisi which is returnable on the first day of a continuous opposed motion court roll that endures from 10:00 am on a Monday
of a particular week until 16:00 pm on the Friday of that week, and has been properly enrolled, does not lapse if it is only heard by the court, in
the administration of its roll, on another day during that week. 334
An application to anticipate the return day of a sequestration order for the purpose of discharging the order of provisional sequestration
should comply with the requirements of s 11(3) of the Insolvency Act 24 of 1936. 335
Subrule (9): ‘A copy of every application . . . shall . . . be submitted to the Master.’ The object of this subrule is to avoid applications
being enrolled only to be postponed so that the court may have the advantage of the Master’s assistance, and not to force an applicant to
obtain the Master’s advice in order to learn whether or not he has a case. The subrule does not operate

RS 25, 2024, D1 Rule 6­50

when the Master’s involvement is neither legally necessary nor of assistance to the court. The subrule strikes at the lodging and enrolment of
an application and non­compliance therewith does not result in the voidness of the affidavits or of service. 336 The subrule does not apply to an
application for relief of a temporary nature. 337
An application for the appointment of a curator ad litem to a person, as a preliminary to the appointment of a curator bonis, is not submitted
to the Master for report. In terms of rule 57(6) the applicant is obliged, after receipt of the report of the curator ad litem, to submit the report
and copies of all the documents which had been filed in the application to the Master for consideration and report to the court.
See further the notes to subrule (2) s v ‘Necessary or proper to give any person notice of such application’ above.
Subrule (11): ‘Applications incidental to pending proceedings.’ An application is incidental to pending proceedings if it is subordinate or
accessory to while at the same time being distinct from the main proceedings. 338 A legal issue should be decided at the interlocutory stage of
proceedings only if it would result in the final disposal of either the matter as a whole or a particular aspect thereof. 339
Matters in which an order, judgment or direction is sought from a judge sitting otherwise than in open court may, in certain divisions, be
340
brought
© 2018 through
Juta and the Chamber
Company (Pty) Ltd. Book. For example, rule 17(d) of the Joint RulesDownloaded
of Practice :for
Fri the High
Apr 25 Courts
2025 of the
15:31:26 Eastern(South
GMT+0200 Cape, inter alia,
Africa Standard Time)
provides that the Chamber Book may be used in matters in which an order or direction is sought from a judge and may be granted otherwise
 Subrule (11): ‘Applications incidental to pending proceedings.’ An application is incidental to pending proceedings if it is subordinate or
accessory to while at the same time being distinct from the main proceedings. 338 A legal issue should be decided at the interlocutory stage of
proceedings only if it would result in the final disposal of either the matter as a whole or a particular aspect thereof. 339
Matters in which an order, judgment or direction is sought from a judge sitting otherwise than in open court may, in certain divisions, be
brought through the Chamber Book. For example, rule 17(d) of the Joint Rules of Practice for the High Courts of the Eastern Cape, 340 inter alia,
provides that the Chamber Book may be used in matters in which an order or direction is sought from a judge and may be granted otherwise
than in open court as provided in the Uniform Rules of Court. See also Practice Direction 22 of the Practice Directions of the North West Division
of the High Court, Mahikeng 341 and paragraph 37 of the Consolidated Practice Notes of the Western Cape Division of the High Court, Cape
Town. 342
‘May be brought on notice.’ ‘Notice’ in this subrule does not mean notice of motion. 343 Interlocutory and other applications incidental to
pending proceedings need not be served by the sheriff: service may be effected upon the attorney of record of the respondent by the party
initiating the proceedings. 344
The provisions of the rules relating to the time for filing answering and replying affidavits do not apply to interlocutory
applications. 345 Further affidavits in interlocutory applications must be filed within a reasonable time; prima facie in the absence of special
circumstances, this would not be longer than the times prescribed in terms of rule 6(5). 346

RS 25, 2024, D1 Rule 6­51

A court dealing with an interlocutory proceeding, especially one involving significant issues of considerable complexity, will only decide such
issues where it is strictly necessary to do so and where the issues have been fully and precisely determined in the papers between the
parties. 347
An application to strike out matter from an affidavit can be brought as an interlocutory application in terms of subrule (11). 348

Subrule (12)(a): ‘Urgent applications.’ ‘Urgency’ in urgent applications involves mainly the abridgment of times prescribed by the rules and,
secondarily, the departure from established filing and sitting times of the court. 349
The proviso to subrule (4)(a) deals with ex parte applications which are brought as urgent applications. In terms of paragraph (iii) of the
proviso subrule (12) may be applied in so far as is necessary. See further the notes to subrule (4)(a) s v ‘Proviso’ above.
The first proviso to subrule (5)(b)(iii) of rule 6, in terms of which the days between 21 December and 7 January, both inclusive, shall not be
counted in the time allowed for the delivery of a notice of intention to oppose or of any affidavit for purposes of that subrule, does not apply to
applications under subrule (12). 350
In urgent applications the applicant must show that he will not otherwise be afforded substantial redress at a hearing in due course. 351

Urgency does not relate only to some threat to life or liberty; the urgency of commercial interests may justify the invocation of the subrule
no less than any other interests. 352 It has

RS 25, 2024, D1 Rule 6­52

been held, on the one hand, that a matter is urgent because of the imminence and depth of harm that the applicant will suffer if relief is not
given, not because of the category of right the applicant asserts. In other words, urgency (except where a statute provides for inherent
urgency) is determined not by the nature of the claim brought, but by the circumstances in which the applicant seeks its adjudication. There is,
accordingly, no class of proceeding that enjoys inherent preference. 353 On the other hand, it has been held that there is an element of
urgency in contempt proceedings. 354 So too in matters involving the interest of the public, especially where members of the public entrust legal
practitioners with their financial matters. 355 It is submitted that whatever the correct view might be, and regardless of the nature of the relief
sought, it is peremptory that an applicant set out explicitly the circumstances on which he relies to render the matter urgent and the reason
why he claims that he cannot be afforded substantial relief at a hearing in due course. 356

RS 25, 2024, D1 Rule 6­53

The application must be brought as soon as possible; cogent reasons must be advanced to the court for any delay in bringing the
application. 357
It is well established that an applicant cannot create its own urgency by simply waiting until the normal rules can no longer be
applied. 358 Where an applicant first seeks compliance from the respondent before lodging the application it cannot be said that the applicant
had been dilatory in bringing the application or that urgency was self­created. 359
There are degrees of urgency and it is well established that applicants in urgent applications must give proper consideration to the degree of
urgency and tailor the notice of motion to that degree of urgency. 360 In the Western Cape Division of the High Court, Cape Town, a semi­
urgent roll is operated alongside the ordinary (i e continuous) roll and opposed matters which are not of extreme urgency but are nevertheless
too urgent to await hearing in the ordinary course on the continuous roll are placed on the semi­urgent roll. 361 In the Gauteng Division of the
High Court the divergence arising from different degrees of urgency is dealt with by different times of set down. 362

RS 25, 2024, D1 Rule 6­54

The degree of relaxation of the rules and of the ordinary practice of the court depends upon the degree of urgency of a case. 363 The
degree of urgency and the relaxation of the rules should not be greater than the exigencies of the case demand. 364 Cases of extreme urgency
may be proceeded with at once, even if that be at night or during a weekend. 365 Some cases are so urgent that no time is available to prepare
any documents, in which case viva voce evidence may be heard. In such cases the evidence is normally recorded and transcribed and a copy of
the transcription served on the respondent either together with the order or subsequently.
In South African Airways Soc v BDFM Publishers (Pty) Ltd 366 Sutherland J expressed strong views on the ineffective service of an urgent
application and laid down the procedure to be followed by an attorney in an urgent application on less than 24 hours’ notice: 367
‘[22] The principle of audi alterem partem is sacrosanct in the South African legal system. Although, like all other constitutional values, it is not
absolute and must be flexible enough to prevent inadvertent harm, the only times that a court will consider a matter behind a litigant’s back are in
exceptional circumstances. The phrase “exceptional circumstances” has regrettably, through overuse and the habits of hyperbole, lost much of its
impact. To do that phrase justice it must mean “very rarely” — only if a countervailing interest is so compelling that a compromise is sensible, and
then a compromise that is parsimonious in the deviation allowed. The law on the procedure is well established.
[23] In this case the purported service was, de facto, no service at all. The order was taken ex parte, and the service was a farce. The single
paragraph in the founding affidavit which stated that service had been performed by email was true only in the meanest possible way.
[24] The nature of the relief sought is not such that an ex parte order could ever have been justified. Doubtless, SAA appreciated this obvious fact
that service was necessary. However, what it and its legal representatives did, pursuant to a responsibility to achieve effective service in order to
respect the principle of audi alterem partem, was not simply clumsy, but unprofessional. When a litigant contemplates any application in which it is
thought necessary to truncate the times for service in the rules of court, care must be taken to use all reasonable steps to mitigate such
truncation. In a matter in which less than a day’s notice is thought to be justifiable, the would­be applicant’s attorney must take all reasonable
steps to ameliorate the effect thereof on the would­be respondent. The taking of all reasonable steps is not a collegial courtesy, it is a mandatory
professional responsibility that is central to the condonation necessary to truncate the times for service. When there is the prospect of a hearing
before a judge after business hours

RS 25, 2024, D1 Rule 6­54A

and, even more so, when there is the prospect of the hearing taking place elsewhere than in a courthouse, the duty to take reasonable steps is
ever more important and imperative.
[25] In this case, without any forewarning, on at most 30 minutes notice, the application was emailed at 22h00, a time at which it is unreasonable
to have expected that the email would at once be read. The phone calls from SAA, 30 minutes later, reached one out of the three persons to
whom the papers had been sent, who was fortuitously awake to receive it. The notice omitted to state the venue for the hearing. In any event,
by then it was too late to offer even token opposition. None of this could not have been appreciated by SAA.
[26] In my view it is incumbent on the attorney of any person who contemplates an urgent application on less than 24 hours’ notice, to undertake
© 2018 Juta
theand Company
following (Pty) Ltd.
default Downloaded : Fri Apr 25 2025 15:31:26 GMT+0200 (South Africa Standard Time)
actions in fulfilment of the duty to ensure effective service:
[26.1] Once the respondents are properly identified, the names and contact details, ie phone, cell, email, fax and physical addresses of
 [25] In this case, without any forewarning, on at most 30 minutes notice, the application was emailed at 22h00, a time at which it is unreasonable
to have expected that the email would at once be read. The phone calls from SAA, 30 minutes later, reached one out of the three persons to
whom the papers had been sent, who was fortuitously awake to receive it. The notice omitted to state the venue for the hearing. In any event,
by then it was too late to offer even token opposition. None of this could not have been appreciated by SAA.
[26] In my view it is incumbent on the attorney of any person who contemplates an urgent application on less than 24 hours’ notice, to undertake
the following default actions in fulfilment of the duty to ensure effective service:
[26.1] Once the respondents are properly identified, the names and contact details, ie phone, cell, email, fax and physical addresses of
persons who have the authority to address the application must be ascertained. Obviously, if the issue has already been the
subject of debate between the parties and an attorney has already been retained by a respondent, such attorney’s contact details
will top the list.
[26.2] At the earliest moment after deciding to bring an urgent application, contact must be made to demand compliance with the relief
to be sought and to alert one or more of such persons of the intention to bring an application, stating where it is likely to be heard,
when it is likely to be served, and the identity of the judge on urgent duty. Agreement should be reached about who should receive
service on behalf of the respondent by email or fax, or other method.
[26.3] Next, the urgent judge shall be alerted, and a report made, whether or not the respondents have been alerted.
[26.4] When the papers are ready for service, direct contact shall again be made with the persons dealing with the matter on behalf of
the respondent. Where delays occur, the respondents must be kept informed by interim calls to report progress.
[26.5] Sufficient time must be allowed for the respondents to read and digest the papers. It is appropriate to send a notice of motion in
advance of the founding papers to give the respondents a chance to formulate a view about the relief being sought.
[26.6] When the papers are about to be served electronically or otherwise, the urgent judge should be consulted about when and
where the hearing will occur, if at all, and how much notice must be given, in the context of earlier alerts to the respondents.
[26.7] Once served in any manner other than by personal physical delivery, the attorney must immediately call the respondent’s
representatives directly to confirm actual receipt of all the papers.’
A respondent faced with an urgent application, in order to avoid the risk of judgment being given against it by default, is obliged provisionally to
accept the rules set by applicant and then, when the application is heard, make its objections thereto, if any. 368
In Optimum Coal Terminal (Pty) Limited v Richards Bay Coal Terminal (Pty) Limited 369 it was held 370 that while access to the courts is
guaranteed to all to have their disputes adjudicated, courts are not to be abused by litigants with a deluge of papers at short notice, only for
the legal representatives to conclude amongst themselves that it would not be possible for the court to hear the matter on the allocated date
when it was originally set down. Litigants are to be mindful

RS 23, 2024, D1 Rule 6­55

of the case load of judges, particularly where it is expected that apart from other matters on the motion court roll, attention should also be
given to reading several thousand pages at short notice. Convenience to the court and the judges presiding is an important consideration when
deciding to launch urgent litigation of this nature. The failure to do so, is tantamount to an abuse of the court process.
In Economic Freedom Fighters v Chairperson of the Powers and Privileges Committee NO 371 the application was struck from the roll by the
majority of the full court under circumstances where:
(a) the timelines set by the applicant, extending over public holidays and long weekends, for answering affidavits, etc were truncated to the
extreme;
(b) the parties subsequently agreed to different timelines that were confirmed in a court order;
(c) the run up to the date for hearing caused a flurry of activity, particularly with constituting a bench;
(d) the court order was not complied with in various respects, without condonation being sought;
(e) the Practice Directives of the court were not complied with without condonation being sought;
(f) the matter was, accordingly, not ripe for hearing on the date of hearing.
In striking the application from the roll with costs, the majority stated (footnote between [ ]):
‘[18] The applicants are dominus litis. They chose to approach court on an urgent basis, which they were entitled to do. It would have been clear
from the outset, given the time of year and the particular circumstances that the respondents are mostly of an institutional nature, Parliament had
already risen for the year. The court was in recess on the date that they unilaterally chose, meaning there were only two judges on duty.
Managing the hearing of a matter like this, launched during the court recess and set down to be heard during court recess becomes an almost
impossible task. The judiciary has an obligation to perform their duties and functions for all the parties involved in litigation to have a fair hearing.
This includes proper preparation and reading of all the necessary papers.
[19] An applicant who applies for the date for a matter that they foresee will be opposed, as in the instant matter, must ensure that the timelines
they set are not only reasonable in the particular circumstances but that it can be accommodated on the court roll and that the matter will be ripe
for hearing on the date so chosen or agreed. The agreed order of this court dated 17 January 2024 included the possibility of approaching the
Acting Judge President for special allocation, which eventually happened in this matter.
[20] The applicants in this matter had the obligation to ensure that the matter was ripe for hearing. No reasons were given for the midnight filing
of the heads of argument on the Friday preceding the Monday hearing which clearly left no time for the respondents to file their heads of
argument. Not only were the applicants forewarned of the effect of late filing of heads of argument but also the requirement to apply for
condonation for the non­compliance with a court order.
[21] I can put it no better than Gilbert AJ in Chonqin Gingxing Industries SA (Pty) Limited v Ye and Others [2021 (3) SA 189 (GJ) at paras 25–27.]:
“[25] Having so applied for the opposed date, the applicant represented that the matter was ripe for hearing. As discussed above, the
whole purpose of the procedures

RS 23, 2024, D1 Rule 6­56

is to ensure that as far as practically possible a matter is ripe for hearing before becoming deserving of allocation on the busy opposed
motion court roll.
[26] Having made that representation, the applicant must, insofar as practically feasible, ensure that the application remains ripe for
hearing. Should the application become no longer ripe for hearing, then the application should be removed from the roll. Understandably
there may be instances where recalcitrant respondents may conduct themselves, with varying degrees of ingenuity, in an attempt to render
an allocated matter no longer ripe for hearing and so seek to avoid a hearing. The court will be alive to these attempts, but where the
applicant itself take steps that render its own matter no longer ready for hearing, it can hardly complain that its opposed application is
struck from the roll.
[27] This is such an instance”
[22] The respondents were clearly prejudiced by the conduct of the applicants but more importantly, the court is prejudiced despite our best
efforts and literally having to disadvantage other litigants in an attempt to accommodate the matter. All litigants before the courts have equal
rights of access and, by accommodating this matter, other litigants had to be prejudiced. Courts must ensure that the integrity and efficient use of
the judicial resources is protected. As pointed out above by allowing litigants to ignore court orders that they’ve agreed to without a proper
explanation, will bring the administration of justice into disrepute.’
In urgent matters the court is entitled to admit hearsay evidence in an affidavit provided the source of the information and the grounds for
belief in its truth are stated. 372 The type of case in which such evidence is accepted, if these prerequisites are complied with, is one in which
it is necessary to restrain immediate injury and to keep matters in status quo. 373 In Secretary, Judicial Commission of Inquiry into Allegations
of State Capture v Zuma 374 hearsay evidence presented by the applicant consisting of a series of public statements concerning the
Constitutional Court’s authority purportedly made by Mr Zuma was, although being prejudicial to Mr Zuma’s case, admitted as evidence in the
public interest in an urgent application to declare him in contempt of court under circumstances where he did not oppose the application and
made no attempt to distance himself from the statements. 375
In an urgent application which involves large and complex issues, it would be impracticable to require each and every person with knowledge
of a fact to make an affidavit. Thus, in Lagoon Beach Hotel (Pty) Ltd v Lehane NO 376 the Supreme Court of Appeal stated: 377
‘That there is a great deal of hearsay in the first respondent’s papers is clear enough. In the circumstances of the matter, that is understandable.
As Lehane says, he “came to Mr Dunne’s affairs as a stranger”, and during the course of carrying out his duties as official assignee, he came into
possession of documents and records relevant to Mr Dunne’s affairs which, in turn, led him to conclude inter alia that Mr Dunne had retained the
true
© 2018 Juta and Company (Pty) Ltd. Downloaded : Fri Apr 25 2025 15:31:26 GMT+0200 (South Africa Standard Time)
RS 23, 2024, D1 Rule 6­57
 376 377
of a fact to make an affidavit. Thus, in Lagoon Beach Hotel (Pty) Ltd v Lehane NO the Supreme Court of Appeal stated:
‘That there is a great deal of hearsay in the first respondent’s papers is clear enough. In the circumstances of the matter, that is understandable.
As Lehane says, he “came to Mr Dunne’s affairs as a stranger”, and during the course of carrying out his duties as official assignee, he came into
possession of documents and records relevant to Mr Dunne’s affairs which, in turn, led him to conclude inter alia that Mr Dunne had retained the
true

RS 23, 2024, D1 Rule 6­57

ownership of the shares in Mavior and that his disposition of such shares and his loan accounts to Mrs Dunne constituted an invalid stratagem to
place assets beyond the reach of creditors. In his approach to court Lehane made documents in his possession available to support certain
statements made by him. Some of them included judgments of the Irish courts, which relate to certain of the facts established in those
proceedings, as well as financial statements of companies, correspondence and statements made by others and official records of government
bodies, and the like. In a case such as this, in which the first respondent is in a position akin to that of a trustee in an insolvency in this country,
the comment in Registrar of Insurance v Johannesburg Insurance Co Ltd (1) 1962 (4) SA 546 (W) at 547E–F, that “(i)f all the people who know about
every small fact which makes up this complex case should have to make affidavits, the matter would become quite impracticable. In a case like
that a court will relax its rules for the sake of facilitating litigation and in the interests of justice”, becomes pertinent. It is also necessary to state
that Lehane could not swear positively to the facts, but was only called on to justify his suspicions.’
It does not follow that the court is obliged to accept such hearsay evidence, even if the source and the grounds for belief are
furnished. 378 Though this rule antedates the Law of Evidence Amendment Act 45 of 1988, its flexibility is in consonance with the wide
discretion which s 3 of the Act gives the court in regard to the admission of hearsay evidence. See further the notes s v ‘The facts upon which
the applicant relies for relief’ to subrule (1) above.
In Lagoon Beach Hotel (Pty) Ltd v Lehane NO 379 it was held 380 that in an application which is moved as one of urgency, courts are
commonly sympathetic to an applicant and often allow papers to be amplified in reply, subject of course to the right of a respondent to file
further answering papers.
If the application lacks the requisite element or degree of urgency, the court can, for that reason, decline to exercise its powers under this
subrule. The matter is then not properly on the roll. It is well established that the appropriate order under such circumstances is to strike the
application from the roll. 381 That enables the applicant to set the matter down again on proper notice and compliance with the rules. 382 Any
amendment to the original notice of

RS 23, 2024, D1 Rule 6­58

motion must be done in accordance with the provisions of rule 28. 383

If a matter has been set down for hearing on the basis that it is urgent, but the urgency thereafter falls away, and the parties only persist
with the issue of costs, the matter should be postponed to a date on the normal roll. 384
It is well established that in pronouncing on the issue of urgency, the court exercises a wide discretion. 385

Rule 67A(4)(a) provides that a costs order may upon application by any party indicate which portions of the proceedings are deemed urgent.
See further the notes to rule 67A(4) below.
‘The court or a judge.’ As to the meaning of the words ‘court’ and ‘judge’, see rule 1 above.
‘May dispense with the forms and service provided for in these rules.’ Although the court may in terms of this subrule dispense with the
forms and service provided for in the rules, the court is enjoined by the subrule to dispose of an urgent application by procedures which are as
far as practicable in terms of the rules. That obligation must be reflected in the attitude of the court about which deviations it will tolerate in a
specific case. 386 It has been held that the rules of service could be relaxed in urgent cases for interim relief involving respondents who resided
outside the area of jurisdiction of a court. 387
An urgent application is an application in terms of rule 6(5) and the provisions of the subrule apply to such applications subject to the
qualification that an applicant may, to the extent that is necessary in the particular circumstances, deviate from the rules without asking prior
permission of the court. 388 The applicant must, of course, ask that his non­compliance​ with the rules be condoned. 389 If the applicant
requires the operation of any other rules to be dispensed with, such as rules relating to the service of any order made, he should in his
application make out a case for dispensing with them. 390
In terms of rule 6(5)(a) an application must be in a form as near as may be in accordance with Form 2(a). The mere existence of some
urgency does not justify an applicant not using Form 2(a), but the applicant may deviate from the form to the extent justified by the exigencies
of the circumstances by, for example, using shortened time periods, advance nomination of a date of hearing, omitting notice to the registrar
and adaptation of the wording. 391 It is not

RS 25, 2024, D1 Rule 6­59

a requisite of the rules that a notice of motion (and, a fortiori, an urgent application) be issued by the registrar or delivered to him before it
may be served upon the respondent. 392
There must be a marked degree of urgency before it will be justifiable not to use Form 2(a). There may, for example, be factors present
which justify dispensing with all notice to the respondent. 393 In such cases the use of Form 2 may suffice. 394
In appropriate circumstances a rule nisi may be sought by way of urgent application. 395 In such cases an applicant would be entitled in one
document to give two notices for the two sets of relief which are being sought: (i) a notice along ex parte lines (Form 2) for the immediate
relief which will be sought without notice or on shorter notice than the main relief; and (ii) a notice along the lines of Form 2(a) for the relief
which will be sought at a later stage. The relief under (i) will be relief pending the relief to which (ii) refers, i e relief pending the main
hearing. 396
An urgent application for a rule nisi operating as an interim interdict against the State, any Minister, Provincial Premier or any other officer of
the State or province in his capacity as such, must be served at least 72 hours, or such lesser period as the court may in all the circumstances
of the case consider reasonable, before the time mentioned in the application for the hearing of the application. 397

RS 25, 2024, D1 Rule 6­60

If a case has lost its urgency as a result of an interim arrangement between the parties, the case will not be enrolled otherwise than in
accordance with the rules. 398
In appropriate circumstances an applicant is entitled, under this subrule, to move the court, in camera, and without notice to the
respondent, for an Anton Piller order. See further the notes s v ‘Search and Seizure: Orders for the Preservation of Evidence (Anton Piller
Orders)’ in Part D8 below.
Subrule (12)(b): ‘In every affidavit.’ Pursuant to its substitution with effect from 8 July 2022, 399 the subrule no longer makes reference to a
petition filed in support of an application. Proceedings by way of petition were abolished with effect from 1 July 1976 by the Petition
Proceedings Replacement Act 35 of 1976 which provides that any reference in any law to the institution of application proceedings in any court
by petition, shall be construed as a reference to the institution of such proceedings by notice of motion in terms of the rules of court.
‘Shall set forth explicitly the circumstances which it is averred render the matter urgent and the reasons why . . . applicant could not
be afforded substantial redress at a hearing in due course.’ The applicant must in his founding affidavit set out explicitly the circumstances
on which he relies to render the matter urgent and the reason why he claims that he cannot be afforded substantial relief at a hearing in due
course. 400 The applicant needs to justify why the matter is so urgent as to warrant other litigants being shifted further down the queue. 401
Subrule (12)(c): ‘Against whom an order was granted in his absence.’ While subrule (8) allows a person against whom an order has been
granted ex parte to anticipate the return day upon notice, this subrule allows a person against whom an order was granted in his absence in an
urgent application to set the matter down on notice for reconsideration. The absence of the aggrieved party has been termed the ‘underlying
pivot’ to which the exercise of the power under the subrule is coupled. 402 Absence does not extend to wilful absence. 403
© 2018
‘By Juta and Company
notice.’ (Pty) Ltd.
This subrule Downloaded
does not provide for the words ‘supported by such affidavits : Fri case
as the Apr 25may
2025require’
15:31:26as
GMT+0200 (Southand
in rule 6(11) Africa
hasStandard
been Time)
held 404 to mean that it does not require that the
 Subrule (12)(c): ‘Against whom an order was granted in his absence.’ While subrule (8) allows a person against whom an order has been
granted ex parte to anticipate the return day upon notice, this subrule allows a person against whom an order was granted in his absence in an
urgent application to set the matter down on notice for reconsideration. The absence of the aggrieved party has been termed the ‘underlying
pivot’ to which the exercise of the power under the subrule is coupled. 402 Absence does not extend to wilful absence. 403
‘By notice.’ This subrule does not provide for the words ‘supported by such affidavits as the case may require’ as in rule 6(11) and has been
held 404 to mean that it does not require that the

RS 25, 2024, D1 Rule 6­61

notice referred to therein should be accompanied by affidavits. If, however, the aggrieved party does file an affidavit then the other party has
an opportunity to file a replying affidavit which is subject to the general rules and practice about not introducing new matter illegitimately. 405
The subrule merely provides a method for setting the matter down for reconsideration of the order as opposed to subrule 6(11) which
provides for a method of notifying the opposing party of the bringing of interlocutory and other applications incidental to pending
proceedings. 406
In The Fonarun Naree: Afgri Grain Marketing (Pty) Ltd v Trustees, Copenship Bulkers A/S (In Liquidation) 407 the Supreme Court of Appeal
summarized the position in regard to this subrule as follows (footnotes omitted):
‘[12] Rule 6(12)(c) does not prescribe how an application for reconsideration is to be pursued. The absence of prescription was intentional, and
the procedure will vary, depending upon the basis on which the party applying for reconsideration seeks relief against the order granted ex parte
and in its absence. A party wishing to have the order set aside on the ground that the papers did not make a case for that relief, may deliver a
notice to this effect and set the matter down, for argument and reconsideration, on those papers. It may do the same if it merely wishes certain
provisions in the order to be amended, or qualified, or supplemented. The matter is then argued on the original papers. It is not open to the
original applicant, save possibly in the most exceptional circumstances, or where the need to do this has been foreshadowed in the original
founding affidavit, to bolster its original application by filing a supplementary founding affidavit.
[13] The party seeking reconsideration is not confined to this route. It may file an answering affidavit, either traversing the entire case against it,
or restricted to certain issues relevant to the reconsideration. In many instances such an affidavit will be desirable. Even if an affidavit is filed,
however, it does not preclude the party seeking reconsideration arguing at the outset, on the basis of the application papers alone, that the
applicant has not made out a case for relief. That is a well­established entitlement in application proceedings and there is no reason why it should
not be adopted in reconsideration applications.
[14] If an affidavit is filed in support of the application for reconsideration, then the party that obtained the order is entitled to deliver a reply
thereto, subject to the usual limitations applicable to replying affidavits. When that is done, and the party seeking reconsideration does not argue
a preliminary point at the outset that the founding affidavit did not make out a case for relief, the case must be argued on all the factual material
before the judge dealing with the reconsideration proceedings. That material may be significantly more extensive and the nature of the issues
may have changed as a result of the execution of the original ex parte order.’
‘Set the matter down for reconsideration of the order.’ The dominant purpose of the subrule is to afford an aggrieved party a mechanism
designed to redress imbalances in, and injustices and oppression flowing from an order granted as a matter of urgency in his absence. 408 The

RS 25, 2024, D1 Rule 6­62

rationale is to address the actual or potential prejudice because of an absence of audi alteram partem when the order was made. 409 It has
been held that an application for reconsideration is not urgent for the purposes of rule 6(12) simply because an order was granted in the urgent
court. This means that, in the absence of demonstrable prejudice in the time between when an application may be heard before an urgent court
and in the ordinary course, a party seeking a reconsideration must set out the prejudice that will ensue. The threshold is the same whether in
an application for reconsideration or when approaching the court under rule 6(12)(a). In both instances, the parties seeking relief must set out
in clear terms facts duly supported that will pass the threshold of ‘absence of substantive relief’ if the matter is not heard before the urgent
court. 410
Reconsideration of the order, which may be either interim or final in its operation, may involve deletion of the order, either in whole or in part,
or amendment of the order or additions thereto. 411
A court that reconsiders any order in terms of this subrule should do so with the benefit not only of argument on behalf of the party absent
during the granting of the original order but also with the benefit of the facts contained in affidavits filed by all the parties. 412 The result of
this is that the reconsideration needs to be done on the basis of a set of circumstances quite

RS 25, 2024, D1 Rule 6­63

different from that under which the original ex parte order was obtained. 413 The consequences of this are twofold. First, the issues are to be
reconsidered in the light of the fact that both sides of the story are now before the court. Secondly, the execution of the original order may
have had the effect that those issues are not exactly the same as the issues the court had to deal with in the original application. 414
It has been held 415 that the subrule is wide enough to permit the reconsideration of an order granted ex parte, such as an Anton Piller order,
on the basis of a set of circumstances quite different from those under which the original order had been obtained. In these circumstances the
order will be reconsidered in the light of the execution of the previous order, the variation of such order and further affidavits filed by the
parties.
Under the subrule, the court has a wide discretion and the factors which may determine whether an order falls to be reconsidered, include
the reasons for the absence, the nature of the order granted and the period during which it has remained operative. Other factors to be taken
into consideration will be whether an imbalance, oppression or injustice has resulted, and, if so, the nature and extent thereof, and whether
alternative remedies are available. The convenience of the parties is another factor to be taken into consideration. 416 The aggrieved party,
seeking to invoke the provisions of the subrule, ought in his affidavit to detail the form of reconsideration required and the circumstances upon
which it is based. 417

RS 25, 2024, D1 Rule 6­64

Where the court reconsiders an Anton Piller­type order in terms of this subrule and it appears that the application was an abuse of the
process of court, the court may in its discretion order the applicant to pay costs on an attorney and own client scale. 418 For the approach on
the reconsideration of an Anton Piller order, see further the notes s v ‘Discretion’ in Part D8 below.
Subrule (15): ‘May on application order to be struck out.’ This subrule regulates the striking out of matter from an affidavit as opposed to
an application to strike out an entire claim that is vexatious. In the latter instance, the court enjoys at common law an inherent power to strike
out claims that are vexatious by which is meant ‘frivolous, improper, instituted without sufficient ground, to serve solely as an annoyance to the
defendant’. 419 As a complement to the common law, the Vexatious Proceedings Act 3 of 1956 provides the court with a mechanism for
preventing the institution of vexatious legal proceedings. 420
The application must be on notice in terms of subrule (11). 421 The application must clearly indicate the passages to which objection is taken
and set out the grounds of objection shortly. 422
The application should be set down for hearing at the same time as the hearing of the main application. 423 Since an application to strike out
objectionable matter in affidavits is dealt with only at the hearing of the main application, a party must in his opposing affidavits deal

RS 25, 2024, D1 Rule 6­65

with the allegations sought to be struck out. By doing so he does not waive his right to object to the offending allegations in the affidavits. 424

The use of the word ‘may’ indicates that the court has a discretion in an application to strike out matter from an affidavit. 425

426
‘Any matter which is scandalous, vexatious or irrelevant.’ The meaning of these terms has been stated as follows:
(a) Scandalous matter — allegations which may or may not be relevant but which are so worded as to be abusive or defamatory.
(b) Vexatious matter — allegations which may or may not be relevant but are so worded as to convey an intention to harass or annoy.
(c) Juta
© 2018 Irrelevant matter
and Company (Pty)—Ltd.
allegations which do not apply to the matter in hand and do not
Downloaded contribute
: Fri in 15:31:26
Apr 25 2025 one wayGMT+0200
or the other to Africa
(South a decision of Time)
Standard
such matter. 427
 The use of the word ‘may’ indicates that the court has a discretion in an application to strike out matter from an affidavit. 425

426
‘Any matter which is scandalous, vexatious or irrelevant.’ The meaning of these terms has been stated as follows:
(a) Scandalous matter — allegations which may or may not be relevant but which are so worded as to be abusive or defamatory.
(b) Vexatious matter — allegations which may or may not be relevant but are so worded as to convey an intention to harass or annoy.
(c) Irrelevant matter — allegations which do not apply to the matter in hand and do not contribute in one way or the other to a decision of
such matter. 427
The subrule is not exhaustive of the grounds upon which an application to strike out matter from an affidavit may be brought. 428 The following
can be struck out:

RS 25, 2024, D1 Rule 6­66

(a) Inadmissible evidence — e g privileged communications 429 and hearsay evidence, 430 unless, in the latter case, supported by an affidavit
or affirmation ‘of information and belief’. Inadmissible evidence appearing in affidavits may be struck out without invoking rule 6(12) and
notice of such an application to strike out may be given in terms of rule 6(11). 431 Such an application is in essence an objection against
the admission of evidence which is only made at the hearing of the main application. 432 Hearsay statements in affidavits can, therefore,
be struck out irrespective of whether or not there is prejudice. 433
(b) Argument. 434
435
(c) Attacks on credibility.
(d) New matter (if the affidavit in question is a replying affidavit). 436

‘An appropriate order as to costs including costs as between attorney and client.’ The court has a wide discretion to make an appropriate
costs order, including an order for costs on the basis as between attorney and client, depending on the facts and circumstances of the
matter. 437
‘The applicant will be prejudiced in his case.’ Two requirements must be satisfied before an application to strike out matter from any affidavit
can succeed: first, the matter sought to be struck out must indeed be scandalous, vexatious or irrelevant; secondly, the court must be
satisfied that if such matter is not struck out the parties seeking such relief would be prejudiced. 438 The procedure for striking out was not
intended to be utilized to make technical

RS 25, 2024, D1 Rule 6­67

439
objections which merely increase costs. The word ‘case’ in the subrule should not be interpreted narrowly so as to enable a party freely to
make irrelevant allegations which could only be struck out upon proof of prejudice in respect of the relief sought. 440 Scandalous or irrelevant
matter may be defamatory of the other party and the retention of such matter will therefore be prejudicial to such party. 441
Costs of applications. The general rules applicable to costs apply also to awards of costs in application proceedings. See, in general, Part
D5 below.
There is no principle that a costs order cannot be made against a respondent in an unopposed matter. While there might be sound policy
considerations why, for example, the respondent in a review application (such as a public body, a magistrate, a master of the High Court or an
arbitrator) would not be required to pay the costs of an application, save in the event of opposition, the same considerations do not apply to
applications for relief against ordinary commercial entities. 442

1 For proposed amendments to rule 6, see Price ‘Civil court rules — open to abuse?’ 2013 (August) De Rebus 29–31.
2 This paragraph was referred to with approval in Inzalo Enterprise Management Systems (Pty) Ltd v Mantsopa Local Municipality (unreported, FB case no
3832/2023 dated 22 November 2023) at paragraph [17].
3 See, in general, Volume 3, Parts F–N.
4 Subrule (2).
5 Subrules (2) and (4)(a).
6 Subrule (11).
7 See the proviso to subrule (4)(a) and, further, the notes to subrule (11) s v ‘May be brought on notice’ below.
8 See the notes to subrule (12) below.
9 Subrule (12)(a).
1 0 Subrule (12)(a).
1 1 Finishing Touch 163 (Pty) Ltd v BHP Billiton Energy Coal South Africa Ltd 2013 (2) SA 204 (SCA) at 211B–C, overruling BHP Billiton Energy Coal South Africa Ltd
v Minister of Mineral Resources 2011 (2) SA 536 (GNP) at 541I–542D on this point.
1 2 2016 (1) SA 78 (GJ).
1 3 At 85D–F.
1 4 Theron and Another NNO v Loubser NO 2014 (3) SA 323 (SCA) at paragraph [26]; Tau v Mashaba 2020 (5) SA 135 (SCA) at paragraph [15].
1 5 Ex parte Satbel (Edms) Bpk: In re Meyer v Satbel (Edms) Bpk 1984 (4) SA 347 (W) at 362G.
1 6 Ex parte Hay Management Consultants (Pty) Ltd 2000 (3) SA 501 (W) at 506B–507B; Ulde v Minister of Home Affairs 2008 (6) SA 483 (W) at 495F–496H.
1 7 2014 (3) SA 265 (GP).
1 8 At 289E–290A.
1 9 Reymond v Abdulnabi 1985 (3) SA 348 (W) at 349E; Brian Kahn Inc v Samsudin 2012 (3) SA 310 (GSJ) at 313A–B and the cases there referred to.
2 0 Brian Kahn Inc v Samsudin 2012 (3) SA 310 (GSJ) at 313B–C.
2 1 Brian Kahn Inc v Samsudin 2012 (3) SA 310 (GSJ) at 313C.
2 2 Brian Kahn Inc v Samsudin 2012 (3) SA 310 (GSJ) at 313B–C.
2 3 Afriforum NPC v Nelson Mandela Foundation Trust 2023 (4) SA 1 (SCA) at paragraphs [70]–[71]; Road Accident Fund v MKM obo KM 2023 (4) SA 516 (SCA) at
paragraph [55]; Minister of Communications and Digital Technologies v South African Post Office SOC Ltd (unreported, GP case no 2023­051134 dated 10 July
2023) at paragraph [7]; and see Road Accident Fund v Taylor and Related Matters 2023 (5) SA 147 (SCA) at paragraphs [30]–[31]; Kouga Local Municipality v St
Francis Bay (Ward 12) Concerned Residents Association 2024 (4) SA 70 (SCA) at paragraph [15].
2 4 Persadh v General Motors South Africa (Pty) Ltd 2006 (1) SA 455 (SE) at 459E–G. The principles are discussed in the excursus to rule 41 s v ‘Postponement’
below.
2 5 Purchase v Purchase 1960 (3) SA 383 (N) at 385A; African Farms and Townships Ltd v Cape Town Municipality 1963 (2) SA 555 (A) at 563D–H; Sparks v
Sparks 1998 (4) SA 714 (W) at 721F; Bouwer v City of Johannesburg (unreported, LAC case no JA64/06 dated 23 December 2008) at paragraphs [17]–[45]; but
see Vena v Vena 2010 (2) SA 248 (ECP) at 253A–I where it was held that the dismissal of an application under certain cirumstances amounts to absolution from
the instance.
2 6 2016 (3) SA 417 (GJ).
2 7 At 425A–B, with reference to Ex parte Van Loggerenberg 1951 (1) SA 771 (T) at 772A–D; Ex parte Inkley and Inkley 1995 (3) SA 528 (C) and Williams v
Tunstall 1949 (3) SA 835 (T).
2 8 1949 (3) SA 1155 (T).
2 9 Unreported, SCA case no 139/2020 dated 23 June 2021.
3 0 At paragraph [26].
3 1 At paragraph [27]. See also Koko v Tanton (unreported, GJ case no 2021/2212 dated 7 September 2021) at paragraphs [41]–[42].
3 2 [2021] 4 All SA 652 (SCA).
3 3 At paragraph [21].
3 4 2025 (1) SA 117 (SCA).
3 5 The Supreme Court of Appeal disagreed with the decision of the High Court in Ramos v Independent Media (Pty) Ltd (unreported, GJ case no 01144/21 dated
28 May 2021) and held that motion proceedings were unsuited to deal with defamatory allegations as was done in that case (at paragraphs [24]–[26]).
3 6 Hadiaris v Freeman & Freeman 1948 (3) SA 720 (W) at 724.
3 7 Hadiaris v Freeman & Freeman 1948 (3) SA 720 (W) at 727.
3 8 2024 (4) SA 240 (KZP).
3 9 1948 (3) SA 720 (W).
4 0 At paragraphs [67]–[69].
4 1 GN R2133 in GG 46475 of 3 June 2022.
© 2018 4Juta andnature
2 The Company (Pty) Ltd. by way of petition is discussed in Du Preez v Du PreezDownloaded
of proceedings : Fri(N)
1960 (3) SA 388 Apr 25 the
and 2025 15:31:26
decisions GMT+0200
referred (SouthSee
to therein. Africa
alsoStandard
Hepker vTime)
National Gelatine & Glue (SA) (Pty) Ltd 1966 (3) SA 591 (W) and Open Market Bazaars (Pty) Ltd v Bolnick Bros (Pty) Ltd 1973 (2) SA 590 (T).
 37 Hadiaris v Freeman & Freeman 1948 (3) SA 720 (W) at 727.
38 2024 (4) SA 240 (KZP).
3 9 1948 (3) SA 720 (W).
4 0 At paragraphs [67]–[69].
4 1 GN R2133 in GG 46475 of 3 June 2022.
4 2 The nature of proceedings by way of petition is discussed in Du Preez v Du Preez 1960 (3) SA 388 (N) and the decisions referred to therein. See also Hepker v
National Gelatine & Glue (SA) (Pty) Ltd 1966 (3) SA 591 (W) and Open Market Bazaars (Pty) Ltd v Bolnick Bros (Pty) Ltd 1973 (2) SA 590 (T).
4 3 Both Form 2 and Form 2(a) bear the heading ‘Notice of Motion’.
4 4 In Du Plessis v Tager 1953 (2) SA 275 (O) at 277F–G ‘notice of motion’ is described as ‘benewens dagvaarding en petisie een van die erkende maniere . . .
waarop ’n geding aanhangig gemaak kan word, en as sulks is dit ’n siviele geding’.
4 5 Republikeinse Publikasies (Edms) Bpk v Afrikaanse Pers Publikasies (Edms) Bpk 1972 (1) SA 773 (A) at 780C–E.
4 6 Rule 41A(2)(a).
4 7 Rule 41A(2)(c).
4 8 Rule 41A(2)(d).
4 9 Rule 41A(4)(c).
5 0 2021 (5) SA 619 (ECM). A similar point in limine was dismissed in Tau Lekoa Gold Mining Company v Nicolar (Pty) Ltd (unreported, GJ case no 055281/23
dated 14 August 2023) at paragraph [23].
5 1 At paragraphs [9]–[11].
5 2 Unreported, GP case no 2023­064414 dated 25 July 2023.
5 3 At paragraph [7]. See also Shannin and Ulisha Investments (Pty) Limited t/a Fast Spares v Mahomed (unreported, KZP case no 16524/2022P dated 16
November 2023) at paragraph [14].
5 4 See Goodwood Municipality v Rabie 1954 (2) SA 404 (C) at 406B–C; Swissborough Diamond Mines (Pty) Ltd v Government of the Republic of South Africa 1999
(2) SA 279 (T) at 336A–B.
5 5 Section 194; and see S v Thurston 1968 (3) SA 284 (A).
5 6 S v L 1973 (1) SA 344 (C). In Chaimowitz v Chaimowitz (1) 1960 (4) SA 818 (C) the ‘hearsay ramblings of an infant’ in an affidavit were struck out.
5 7 Leith NO and Heath NO v Fraser 1952 (2) SA 33 (O) at 36B.
5 8 Mazibuko v Singer 1979 (3) SA 258 (W) at 264F; Samex Consulting (Pty) Ltd v Department of Roads and Public Works Northern Cape (unreported, NCK case no
2101/2021 dated 28 October 2022) at paragraph [7].
5 9 Reynolds NO v Mecklenberg (Pty) Ltd 1996 (1) SA 75 (W) at 78I. In this case Stegmann J deprecated the disorderly presentation of facts in lengthy affidavits
containing much argumentative matter. The result was that the court was ‘given no clear context of facts which are common cause, and no clear guidance as to
the dispute of facts which must be evaluated against the background of such a context’ (at 83A–C).
6 0 My Vote Counts NPC v Speaker of The National Assembly 2016 (1) SA 132 (CC) at paragraph [177]; WD v AD (unreported, GJ case no 2019/41365 dated 18
October 2021) at paragraph [19]. See further the notes to subrule (5)(e) s v ‘Deliver a replying affidavit’ below.
6 1 Mars Incorporated v Candy World (Pty) Ltd 1991 (1) SA 567 (A) at 575H–I; Kommissaris van Binnelandse Inkomste v Van der Heever 1999 (3) SA 1051
(SCA) at 1057G–H.
6 2 1980 (3) SA 1182 (C) at 1188H; and see Eagles Landing Body Corporate v Molewa NO 2003 (1) SA 412 (T) at 423I; Giant Concerts CC v Minister of Local
Government, Housing and Traditional Affairs, KwaZulu­Natal 2011 (4) SA 164 (KZP) at 170H–I. It has been held that where a resolution authorized a person to
sign all documentation and affidavits necessary ‘in connection with . . . an action’, the word ‘action’ embraced application proceedings and the deponent
accordingly had the necessary authority (Kwik Kopy (SA) (Pty) (Ltd) v Van Haarlem 1999 (1) SA 472 (W) at 481E–F).
6 3 Ganes v Telecom Namibia Ltd 2004 (3) SA 615 (SCA) at 624G–H; Plettenberg Bay Country Club v Bitou Municipality [2006] 4 All SA 395 (C) at 398i–j; ANC
Umvoti Council Caucus v Umvoti Municipality 2010 (3) SA 31 (KZP) at 38B–E; MV Andre Builder Joiner CC v Nordien (unreported, WCC case no 19002/20 dated 6
December 2021) at paragraph [22]; SAMWU obo Members v Mangaung Metropolitan Municipality 44 ILJ 360 (LC) at paragraphs [21]–[22]; Masako v
Masako 2022 (3) SA 403 (SCA) at paragraph [10]; and see Eskom v Soweto City Council 1992 (2) SA 703 (W) at 705E. Once the authority of a departmental
officer to represent the State is challenged, it is encumbent upon the State to produce proof that such officer is duly delegated, directed and authorized to
represent it in the proceedings. The mere say­so of a departmental officer in an affidavit is no proof of either delegation or authority without submitting
acceptable evidence or documentation to substantiate the averments (Eveleth v Minister of Home Affairs [2004] 3 All SA 322 (T) at 326f–h. See also Gerhardt v
State President 1989 (2) SA 499 (T) at 504G and Kasiyamhuru v Minister of Home Affairs 1999 (1) SA 643 (W)).
6 4 1992 (2) SA 703 (W) at 207D–E.
6 5 It was held that it cannot be done in South African Milling Co (Pty) Ltd v Reddy 1980 (3) SA 431 (SE); Interboard SA (Pty) Ltd v Van den Berg 1989 (4) SA 166
(O); United Methodist Church of South Africa v Sokufundumala 1989 (4) SA 1055 (O); South African Allied Workers’ Union v De Klerk NO 1990 (3) SA 425
(E) (confirmed on appeal sub nomine South African Allied Workers’ Union (in liquidation) v De Klerk NO 1992 (3) SA 1 (A) but the question of locus standi was not
considered (at 4H)); M & V Tractor & Implement Agencies Bk v Vennootskap D S U Cilliers & Seuns; Hoogkwartier Landgoed; Olierivier Landgoed (Edms) Bpk
(Kelrn Vervoer (Edms) Bpk Tussenbeitredend) 2000 (2) SA 571 (N). It was held that it can be done and that the court has a discretion to come to the aid of the
applicant in appropriate cases in Baeck & Co SA (Pty) Ltd v Van Zummeren 1982 (2) SA 112 (W); Evangelical Lutheran Church in Southern Africa (Western
Diocese) v Sepeng 1988 (3) SA 958 (B) at 966A–B; De Polo v Dreyer 1991 (2) SA 164 (W) at 178C–179B; Nahrungsmittel GmbH v Otto 1991 (4) SA 414 (C) at
418D; National Co­op Dairies Ltd v Smith 1996 (2) SA 717 (N) at 718J–719D; Torgos (Pty) Ltd v Body Corporate of Anchors Aweigh 2006 (3) SA 369 (W) at
371E–F; Plettenberg Bay Country Club v Bitou Municipality [2006] 4 All SA 395 (C) 399c; Msunduzi Municipality v Natal Joint Municipal Pension/Provident
Fund 2007 (1) SA 142 (N) at 147G–H. In Merlin Gerin (Pty) Ltd v All Current and Drive Centre (Pty) Ltd 1994 (1) SA 659 (C), Fourways Mall (Pty) Ltd v South
African Commercial Catering and Allied Workers Union 1999 (3) SA 752 (W) at 753G–H and Cyberscene Ltd v i­Kiosk Internet and Information (Pty) Ltd 2000 (3)
SA 806 (C) at 811B–812H it was contended that this approach had in fact been approved by the Appellate Division in Moosa and Cassim NNO v Community
Development Board 1990 (3) SA 175 (A) at 181B. In South African Allied Workers’ Union v De Klerk NO 1990 (3) SA 425 (E) at 433C–E the view was expressed
that the Appellate Division had not resolved the matter. In Smith v Kwanonqubela Town Council 1999 (4) SA 947 (SCA) at 954F–H it was emphasized (albeit
obiter) that the Appellate Division in the Moosa case clearly adopted as correct the approach in the Baeck & Co case (supra) and that the Supreme Court of
Appeal fully subscribes to that view. It was also pointed out (at 954H) that the rule against new matter in reply is not absolute and that it should be applied with a
fair measure of common sense. The Supreme Court of Appeal also settled conflicting case law as to whether or not authority could be ratified, holding that it
could be ratified except where the ratification would prejudice the substantive rights of a third party (at 952F–H; 953B–G and 954A–B). In Nestlé (South Africa)
(Pty) Ltd v Mars Inc 2001 (4) SA 542 (SCA) the Supreme Court of Appeal, with reference to Smith v Kwanonqubela Town Council (supra), rejected a submission
on behalf of the appellant that the respondent did not authorize the application that it brought in the High Court, stating (at paragraph [11]) that ‘because it is
abundantly clear that at the time the application was heard Mars, even if it had not authorised them at the outset, had at least ratified the commencement of the
proceedings as it was entitled to do’. See also Lynn NO v Coreejes 2011 (6) SA 507 (SCA) at paragraphs [14]–[15].
6 6 Van Staden NO v Pro­Wiz Group (Pty) Ltd 2019 (4) SA 532 (SCA) at 538E–G.
6 7 Van Staden NO v Pro­Wiz Group (Pty) Ltd 2019 (4) SA 532 (SCA) at 538E–G.
6 8 Van Staden NO v Pro­Wiz Group (Pty) Ltd 2019 (4) SA 532 (SCA) at 538E–G.
6 9 Ex parte Kaiser 1902 TH 165. In Titty’s Bar and Bottle Store (Pty) Ltd v ABC Garage (Pty) Ltd 1974 (4) SA 362 (T) at 368H it is said that it has always been the
practice in South Africa to strike out matter in replying affidavits which should have appeared in founding affidavits, ‘including facts to establish . . . the
jurisdiction of the court’. See also Kritzinger v Newcastle Local Transitional Council 2000 (1) SA 345 (N) at 352C–D; Eagles Landing Body Corporate v Molewa
NO 2003 (1) SA 412 (T) at 423J–424A.
7 0 Mauerberger v Mauerberger 1948 (3) SA 731 (C) at 732; Titty’s Bar and Bottle Store (Pty) Ltd v ABC Garage (Pty) Ltd 1974 (4) SA 362 (T) at 369A; Shakot
Investments (Pty) Ltd v Town Council of the Borough of Stanger 1976 (2) SA 701 (D) at 704F–H; Director of Hospital Services v Mistry 1979 (1) SA 626 (A) at
635H–636F; Shepherd v Mitchell Cotts Seafreight (SA) (Pty) Ltd 1984 (3) SA 202 (T) at 205E; Bowman NO v De Souza Roldao 1988 (4) SA 326 (T) at 327D–328A;
Business Partners Ltd v World Focus 754 CC 2015 (5) SA 515 (KZD) at 528B–C; Annex Distribution (Pty) Ltd v Bank of Baroda 2018 (1) SA 562 (GP) at 578F;
Atlantis Property Holdings CC v Atlantis Exel Service Station CC 2019 (5) SA 443 (GP) at 458E–G; Philippi Horticultural Area Food and Farming Campaign v MEC
for Local Government, Western Cape 2020 (3) SA 486 (WCC) at paragraph [18]; Botha v Smuts 2024 (12) BCLR 1477 (CC) at paragraph [58]; National Council
of Societies for the Prevention of Cruelty to Animals v Openshaw 2008 (5) SA 339 (SCA) at 349A–B. In the latter case the court stated (at 349B–C):
‘The applicant must set out facts to justify the relief sought and also to inform the respondent of the case he is required to meet. The appellant is precluded from
making a case on appeal that was not only not pleaded on the papers but was also disavowed by the appellant in reply.’
See also Molusi v Voges NO [2015] 3 All SA 131 (SCA) at paragraphs [20] and [39] and the cases there referred to, reversed on appeal (but not on this point)
in Molusi v Voges NO 2016 (3) SA 370 (CC).
7 1 Lang v Wilhelmus (unreported, GP case no 25502/2022 dated 7 February 2023), applying WP Fresh Distributors (Pty) Ltd v Klaaste NO (unreported, WCC case
no 16473/12 dated 23 April 2013).
See also the notes to rule 6 s v ‘General’ above.
7 2 Berg v Gossyn (1) 1965 (3) SA 702 (O); Nedbank Ltd v Hoare 1988 (4) SA 541 (E) at 543H.
7 3 Hart v Pinetown Drive­In Cinema (Pty) Ltd 1972 (1) SA 464 (D) at 469C–E, cited with approval in Pearson v Magrep Investments (Pty) Ltd 1975 (1) SA 186
(D) at 187G; Prok Africa (Pty) Ltd v NTH (Pty) Ltd 1980 (3) SA 687 (W) at 692H–693A; Triomf Kunsmis (Edms) Bpk v AE & CI Bpk 1984 (2) SA 261 (W) at 269B–
270B; Radebe v Eastern Transvaal Development Board 1988 (2) SA 785 (A) at 793E; Hyperchemicals International (Pty) Ltd v Maybaker Agrichem (Pty) Ltd 1992
(1) SA 89 (W) at 92H; Swissborough Diamond Mines (Pty) Ltd v Government of the Republic of South Africa 1999 (2) SA 279 (T) at 323F–324C; Bezuidenhout v
Otto 1996 (3) SA 339 (W) at 344J–345D; South Peninsula Municipality v Evans 2001 (1) SA 271 (C) at 280I; Choice Holdings Ltd v Yabeng Investment Holdings
Co Ltd 2001 (3) SA 1350 (W) at 1360D–E; Union Finance Holdings Ltd v I S Mirk Office Machines II (Pty) Ltd 2001 (4) SA 842 (W) at 847D–E; Die Dros (Pty) Ltd v
Telefon Beverages CC 2003 (4) SA 207 (C) at 217A–B; Transnet Ltd v Rubenstein 2006 (1) SA 591 (SCA) at 600G; Minister of Land Affairs and Agriculture v D&F
Wevell Trust 2008 (2) SA 184 (SCA) at 200D; Absa Bank Ltd v Kernsig 17 (Pty) Ltd 2011 (4) SA 492 (SCA) at 499A–D; MEC for Health, Gauteng v 3P Consulting
(Pty) Ltd 2012 (2) SA 542 (SCA) at 550G–551C; Foize Africa (Pty) Ltd v Foize Beheer BV 2013 (3) SA 91 (SCA) at 102G–H; Business Partners Ltd v World Focus
754 CC 2015 (5) SA 515 (KZD) at 528B; Venmop 275 (Pty) Ltd v Cleverlad Projects (Pty) Ltd 2016 (1) SA 78 (GJ) at 85G–I; Molusi v Voges NO 2016 (3) SA 370
(CC) at 381F–H; FirstRand Bank Ltd v Kruger 2017 (1) SA 533 (GJ) at 537A; Masstores (Pty) Ltd v Pick n Pay Retailers (Pty) Ltd 2017 (1) SA 613 (CC) at 625I–J;
Mostert v FirstRand Bank Ltd t/a RMB Private Bank 2018 (4) SA 443 (SCA) at 448D; National Credit Regulator v Lewis Stores (Pty) Ltd 2020 (2) SA 390 (SCA) at
paragraph [29]; Global Environmental Trust v Tendele Coal Mining (Pty) Ltd (Centre for Environmental Rights and others as amici curiae) [2021] 2 All SA 1 (SCA)
© 2018 Juta
at and Company
paragraph (Pty)
[95]. SeeLtd. Downloaded
also Molusi v Voges NO [2015] 3 All SA 131 (SCA) at paragraphs [20] and: [39];
Fri Apr 25 2025Motor
Maponya 15:31:26
City GMT+0200 (South
Properties (Pty) LtdAfrica Standard
v Hamilton N.O.Time)
(unreported, GJ case no 20/39151 dated 12 October 2021) at paragraph [23]; Nongadla v Standard Bank (Pty) Ltd (unreported, ECM case no 1677/2014 dated 2
 Wevell Trust 2008 (2) SA 184 (SCA) at 200D; Absa Bank Ltd v Kernsig 17 (Pty) Ltd 2011 (4) SA 492 (SCA) at 499A–D; MEC for Health, Gauteng v 3P Consulting
(Pty) Ltd 2012 (2) SA 542 (SCA) at 550G–551C; Foize Africa (Pty) Ltd v Foize Beheer BV 2013 (3) SA 91 (SCA) at 102G–H; Business Partners Ltd v World Focus
754 CC 2015 (5) SA 515 (KZD) at 528B; Venmop 275 (Pty) Ltd v Cleverlad Projects (Pty) Ltd 2016 (1) SA 78 (GJ) at 85G–I; Molusi v Voges NO 2016 (3) SA 370
(CC) at 381F–H; FirstRand Bank Ltd v Kruger 2017 (1) SA 533 (GJ) at 537A; Masstores (Pty) Ltd v Pick n Pay Retailers (Pty) Ltd 2017 (1) SA 613 (CC) at 625I–J;
Mostert v FirstRand Bank Ltd t/a RMB Private Bank 2018 (4) SA 443 (SCA) at 448D; National Credit Regulator v Lewis Stores (Pty) Ltd 2020 (2) SA 390 (SCA) at
paragraph [29]; Global Environmental Trust v Tendele Coal Mining (Pty) Ltd (Centre for Environmental Rights and others as amici curiae) [2021] 2 All SA 1 (SCA)
at paragraph [95]. See also Molusi v Voges NO [2015] 3 All SA 131 (SCA) at paragraphs [20] and [39]; Maponya Motor City Properties (Pty) Ltd v Hamilton N.O.
(unreported, GJ case no 20/39151 dated 12 October 2021) at paragraph [23]; Nongadla v Standard Bank (Pty) Ltd (unreported, ECM case no 1677/2014 dated 2
February 2023) at paragraph [16]; Skog NO v Agullus 2024 (1) SA 72 (SCA) at paragraph [18]; Kouga Local Municipality v St Francis Bay (Ward 12) Concerned
Residents Association 2024 (4) SA 70 (SCA) at paragraph [15]. See also Molusi v Voges NO [2015] 3 All SA 131 (SCA) at paragraphs [20] and [39] and the
cases there referred to, reversed on appeal (but not on this point) in Molusi v Voges NO 2016 (3) SA 370 (CC).
7 4 Venmop 275 (Pty) Ltd v Cleverlad Projects (Pty) Ltd 2016 (1) SA 78 (GJ) at 86A.
7 5 See, for example, FirstRand Bank Ltd v Kruger 2017 (1) SA 533 (GJ) at 537B–D and the cases there referred to.
7 6 Venmop 275 (Pty) Ltd v Cleverlad Projects (Pty) Ltd 2016 (1) SA 78 (GJ) at 86C–88B.
7 7 2021 (3) SA 88 (SCA).
7 8 At paragraph [145].
7 9 2016 (1) SA 78 (GJ).
8 0 At 88B–89H.
8 1 Eskom Holdings SOC Ltd v Masinda 2019 (5) SA 386 (SCA) at 387I–388B. In Freedom Under Law v Judicial Service Commission [2023] 3 All SA 631 (SCA) the
secretary of the Judicial Service Commission deposed to the answering affidavit in opposition to the application to review and set aside the JSC’s decision made
in respect of Judge Motata. Although the secretary was not a member of the JSC and could not have participated in any of the deliberations or decision making,
he asserted that ‘the facts . . . are within my personal knowledge and are, to the best of my knowledge and belief, both true and correct’. In its replying affidavit,
FUL challenged that assertion:
‘[26] . . .
“10. The JSC’s answering affidavit is deposed to by Mr Chiloane. Mr Chiloane speaks widely, broadly and with alleged authority about what the JSC decided, what
its reasons and reasoning were, what motivated it to act in a particular way and what factors it took into account. Mr Chiloane is not a member of the JSC or the
JSC majority which took the Decision and issued the submissions which formed the basis of the Decision. He is simply not in a position to speak with personal
knowledge to any of the issues on which he professes to express a factual view. Almost the entirety of his affidavit is hearsay and falls to be disregarded.”’
The majority of the Supreme Court of Appeal held as follows:
‘[27] Had the JSC merely participated with a view to placing the record of its deliberations before the court to assist it in its consideration of the matter, there
could hardly have been any objection to Mr Chiloane deposing to an affidavit for that purpose. Not so, once it had decided to oppose the application. As a lay
witness it was simply not open to him to depose to all manner of opinion evidence. Mr Chiloane’s affidavit was not accompanied by even a single confirmatory
affidavit from any of those persons with personal knowledge of the facts. The high court approached the evidential material proffered by Mr Chiloane in his
affidavit as if it constituted proof of the truth of the matter so asserted. In that, as counsel for the JSC accepted at the bar in this Court, it erred. For my part, I
am willing to pass over the issue, because on the view that I take of the matter, even on the JSC’s own showing, the decision of the majority does not survive
scrutiny.’ (Emphasis added by the author.)
The above­mentioned approach of the majority in regard to the procedure of adducing hearsay evidence appears to fly in the face of the criticism of such
procedure in Eskom Holdings.
8 2 In this regard the relevance of the evidence offered is dependent on its cogent connection with the relief being sought in the notice of motion (Kouga Local
Municipality v St Francis Bay (Ward 12) Concerned Residents Association 2024 (4) SA 70 (SCA) at paragraph [15] — a case where the Supreme Court of Appeal
determined the appeal strictly with reference to the case advanced by the first respondent in its founding papers and disregarded extraneous legal issues that
the first respondent’s counsel sought to argue based on facts which were not supported by the founding papers (at paragraphs [17]–[18])).
8 3 Mauerberger v Mauerberger 1948 (3) SA 731 (C) at 732; Bayat v Hansa 1955 (3) SA 547 (N) at 553C–G; Schreuder v Viljoen 1965 (2) SA 88 (O); Titty’s Bar
and Bottle Store (Pty) Ltd v ABC Garage (Pty) Ltd 1974 (4) SA 362 (T) at 368–9; Shakot Investments (Pty) Ltd v Town Council of the Borough of Stanger 1976
(2) SA 701 (D) at 704–5; Pat Hinde & Sons Motors (Brakpan) (Pty) Ltd v Carrim 1976 (4) SA 58 (T); Shephard v Tuckers Land and Development Corporation
(Pty) Ltd (1) 1978 (1) SA 173 (W) at 177G; Masenya v Seleka Tribal Authority 1981 (1) SA 522 (T) at 524G; Wiese v Joubert 1983 (4) SA 182 (O) at 194F;
Triomf Kunsmis (Edms) Bpk v AE & CI Bpk 1984 (2) SA 261 (W) at 269A–H; Shepherd v Mitchell Cotts Seafreight (SA) (Pty) Ltd 1984 (3) SA 202 (T) at 205E;
United Methodist Church of South Africa v Sokufundumala 1989 (4) SA 1055 (O) at 1057E–I; Interboard SA (Pty) Ltd v Van den Berg 1989 (4) SA 166 (O) at
168B–D; Port Nolloth Municipality v Xhalisa; Luwalala v Port Nolloth Municipality 1991 (3) SA 98 (C) at 111E; Tumisi v African National Congress 1997 (2) SA 741
(O) at 746A–C; Swissborough Diamond Mines (Pty) Ltd v Government of the Republic of South Africa 1999 (2) SA 279 (T) at 338E–F; Ferreira v Premier, Free
State 2000 (1) SA 241 (O) at 254B–D; M & V Tractor & Implement Agencies Bk v Vennootskap D S U Cilliers & Seuns; Hoogkwartier Landgoed; Olierivier
Landgoed (Edms) Bpk (Kelrn Vervoer (Edms) Bpk Tussenbeitredend) 2000 (2) SA 571 (N) at 580A–C; South Peninsula Municipality v Evans 2001 (1) SA 271
(C) at 280I–281A; Union Finance Holdings Ltd v I S Mirk Office Machines II (Pty) Ltd 2001 (4) SA 842 (W) at 847D–E; Rens v Gutman NO [2002] 4 All SA 30 (C);
Eagles Landing Body Corporate v Molewa NO 2003 (1) SA 412 (T) at 423I; Body Corporate, Shaftesbury Sectional Title Scheme v Rippert’s Estate 2003 (5) SA 1
(C) at 6E–F; National Council of Societies for the Prevention of Cruelty to Animals v Openshaw 2008 (5) SA 339 (SCA) at 349A–B; Betlane v Shelly Court
CC 2011 (1) SA 388 (CC) at 396C; Minister of Safety and Security v Jongwa 2013 (3) SA 455 (ECG) at 462A; York Timbers (Pty) Ltd v National Director of Public
Prosecutions 2015 (3) SA 122 (GP) at 135E–F; Gold Fields Ltd v Motley Rice LLC 2015 (4) SA 299 (GJ) at 325I–326A; Business Partners Ltd v World Focus 754
CC 2015 (5) SA 515 (KZD) at 528C–G; Brayton Carlswald (Pty) Ltd v Brews 2017 (5) SA 498 (SCA) at 507I–J; Passenger Rail Agency of South Africa v Swifambo
Rail Agency (Pty) Ltd 2017 (6) SA 223 (GJ) at 227E–228I; Philippi Horticultural Area Food and Farming Campaign v MEC for Local Government, Western
Cape 2020 (3) SA 486 (WCC) at paragraph [18]; Global Environmental Trust v Tendele Coal Mining (Pty) Ltd (Centre for Environmental Rights and others as
amici curiae) [2021] 2 All SA 1 (SCA) at paragraph [96]; Trustees, Bymyam Trust v Butcher Shop & Grill CC 2022 (2) SA 99 (WCC) at paragraph [54]; Botha v
Smuts 2024 (12) BCLR 1477 (CC) at paragraph [58]. Facts could be either primary or secondary. Primary facts are those capable of being used for the drawing
of inferences as to the existence or non­existence of other facts. Such further facts, in relation to primary facts, are called ‘secondary facts’. Secondary facts, in
the absence of primary facts, are nothing more than a deponent’s own conclusions and do not constitute evidential material capable of supporting a cause of
action (see, for example, Willcox v Commissioner for Inland Revenue 1960 (4) SA 599 (A) at 602A; Swissborough Diamond Mines (Pty) Ltd v Government of the
Republic of South Africa 1999 (2) SA 279 (T) at 324D–F; Die Dros (Pty) Ltd v Telefon Beverages CC 2003 (4) SA 207 (C) at 217B–D; Rees v Harris 2012 (1) SA
583 (GSJ) at 595H–596A).
8 4 2013 (4) SA 519 (WCC) at 532B. See also Maponya Motor City Properties (Pty) Ltd v Hamilton N.O. (unreported, GJ case no 20/39151 dated 12 October 2021)
at paragraph [41].
8 5 Heads of argument are not evidence. They should contain argument based on the pleadings and evidence/affidavits in opposed applications. It is irregular to
raise a potential defence for the first time in heads of argument, especially where the facts have not been fully canvassed (Janse van Rensburg v Obiang 2023
(3) SA 591 (WCC) at paragraphs [22]–[24]). See also Montle and Neo Transport Service v Engen Petroleum Limited (unreported, WCC case no 20420/2022
dated 18 August 2023) at paragraphs 41–45; ABSA Bank Limited v 93 Quartz Street Hillbrow CC (unreported, GJ case no 2022/5554 dated 6 December 2023) at
paragraph [9].
8 6 Brighton Furnishers v Viljoen 1947 (1) SA 39 (GW); The Master v Slomowitz 1961 (1) SA 669 (T) at 672A–C.
8 7 The Master v Slomowitz 1961 (1) SA 669 (T) at 672C.
8 8 Raphael & Co v Standard Produce Co (Pty) Ltd 1951 (4) SA 244 (C).
8 9 2017 (1) SA 533 (GJ).
9 0 At 541A–B.
9 1 At 538C–540B.
9 2 At 540B–541A (footnotes omitted).
9 3 Author’s note: Rees v Investec Bank Ltd 2014 (4) SA 220 (SCA).
9 4 The Master v Slomowitz 1961 (1) SA 669 (T) at 672B; Galp v Tansley NO 1966 (4) SA 555 (C) at 558H; Passenger Rail Agency of South Africa v Swifambo Rail
Agency (Pty) Ltd 2017 (6) SA 223 (GJ) at 230F–G.
9 5 The Master v Slomowitz 1961 (1) SA 669 (T) at 672B. See also Mears v African Platinum Mines Ltd (1) 1922 WLD 48 at 55; Grant­Dalton v Win 1923 WLD 180
at 186; Pountas’ Trustee v Lahanas 1924 WLD 67; Levin v Saidman 1930 WLD 256; Mia’s Trustee v Mia 1944 WLD 102 at 104; Geanotes v Geanotes 1947 (2) SA
512 (C); Fisher v Presiding Officers, Rosettenville Constituency 1961 (3) SA 651 (W) at 656A; Galp v Tansley NO 1966 (4) SA 555 (C) at 558H–559H; Johnstone
v Wildlife Utilization Services (Pvt) Ltd 1966 (4) SA 685 (R); Southern Pride Foods (Pty) Ltd v Mohidien 1982 (3) SA 1068 (C) at 1071D–1072B; Wiese v
Joubert 1983 (4) SA 182 (O) at 195B; Cerebos Food Corporation Ltd v Diverse Foods SA (Pty) Ltd 1984 (4) SA 149 (T) at 157E–H; Syfrets Mortgage Nominees Ltd
v Cape St Francis Hotels (Pty) Ltd 1991 (3) SA 276 (SE).
9 6 Chaimowitz v Chaimowitz 1960 (4) SA 818 (C) at 819F–G; Yorigami Maritime Construction Co Ltd v Nissho­Iwai Co Ltd 1977 (4) SA 682 (C) at 692C; Passenger
Rail Agency of South Africa v Swifambo Rail Agency (Pty) Ltd 2017 (6) SA 223 (GJ) at 230G. It is well established that our courts have consistently refused to
countenance the admission of hearsay evidence (see, for example, Galp v Tansley NO 1966 (4) SA 555 (C) at 558 and 560; Swissborough Diamond Mines (Pty)
Ltd v Government of the Republic of South Africa 1999 (2) SA 279 (T) at 336G). Notwithstanding this principle, the courts have on occasion taken cognizance of
hearsay statements for limited purposes and subject to certain conditions (see, for example, Galp v Tansley NO 1966 (4) SA 555 (C) at 558H; Southern Pride
Foods (Pty) Ltd v Mohidien 1982 (3) SA 1068 (C) at 1071H–1072B; Cerebos Food Corporation Ltd v Diverse Foods SA (Pty) Ltd 1984 (4) SA 149 (W) at 157E–H;
Swissborough Diamond Mines (Pty) Ltd v Government of the Republic of South Africa 1999 (2) SA 279 (T) at 336G–I).
9 7 The application of the section to evidence by affidavit in application proceedings is considered in Hlongwane v Rector, St Francis College 1989 (3) SA 318 (D) at
324E–F; Mnyama v Gxalaba 1990 (1) SA 650 (C); Rail Commuter Action Group v Transnet Ltd t/a Metrorail (No 1) 2003 (5) SA 518 (C) at 546E–547E; FirstRand
Bank Ltd v Kruger 2017 (1) SA 533 (GJ) at 539D–541B; Passenger Rail Agency of South Africa v Swifambo Rail Agency (Pty) Ltd 2017 (6) SA 223 (GJ) at 230H–
233A; South African Broadcasting Corporation SOC Ltd v South African Broadcasting Corporation Pension Fund 2019 (4) SA 608 (GJ) at 636F–637D; Sol Plaatje
University v SRC of the Sol Plaatje University (unreported, NCK case no 1471/2023 dated 26 January 2024) at paragraphs 31–35. The application of the section
in trials is considered in S v Cekiso 1990 (4) SA 20 (E); Mdani v Allianz Insurance Ltd 1991 (1) SA 184 (A); Metedad v National Employers’ General Assurance Co
Ltd 1992 (1) SA 494 (W); Pentree v Nelson Mandela Bay Municipality 2017 (4) SA 32 (ECP). In Secretary, Judicial Commission of Inquiry into Allegations of State
Capture v Zuma 2021 (5) SA 327 (CC) hearsay evidence presented by the applicant consisting of a series of public statements concerning the Constitutional
Court’s authority purportedly made by Mr Zuma was, although being prejudicial to Mr Zuma’s case, admitted as evidence in the public interest in an urgent
application to declare him in contempt of court under circumstances where he did not oppose the application and made no attempt to distance himself from the
statements (at paragraphs [19]–[23]). The Constitutional Court (at paragraph [23]) affirmed the principle in S v Ndhlovu 2002 (6) SA 305 (SCA) at paragraph
[15]
© 2018 Juta andthat the intention
Company (Pty) behind
Ltd. s 3(1)(c) of the Law of Evidence Amendment Act 45 of 1988 is to create
Downloaded flexibility
: Fri Apr 25 2025 so 15:31:26
that hearsay evidence(South
GMT+0200 may be admitted
Africa whenTime)
Standard
the interests of justice, and indeed common sense, demand it. See also, in general, De Vos 1989 TSAR 231; Schutte (1991) 54 THRHR 495; De Vos & Van der
Merwe (1993) 4 Stell LR 3.
 in trials is considered in S v Cekiso 1990 (4) SA 20 (E); Mdani v Allianz Insurance Ltd 1991 (1) SA 184 (A); Metedad v National Employers’ General Assurance Co
Ltd 1992 (1) SA 494 (W); Pentree v Nelson Mandela Bay Municipality 2017 (4) SA 32 (ECP). In Secretary, Judicial Commission of Inquiry into Allegations of State
Capture v Zuma 2021 (5) SA 327 (CC) hearsay evidence presented by the applicant consisting of a series of public statements concerning the Constitutional
Court’s authority purportedly made by Mr Zuma was, although being prejudicial to Mr Zuma’s case, admitted as evidence in the public interest in an urgent
application to declare him in contempt of court under circumstances where he did not oppose the application and made no attempt to distance himself from the
statements (at paragraphs [19]–[23]). The Constitutional Court (at paragraph [23]) affirmed the principle in S v Ndhlovu 2002 (6) SA 305 (SCA) at paragraph
[15] that the intention behind s 3(1)(c) of the Law of Evidence Amendment Act 45 of 1988 is to create flexibility so that hearsay evidence may be admitted when
the interests of justice, and indeed common sense, demand it. See also, in general, De Vos 1989 TSAR 231; Schutte (1991) 54 THRHR 495; De Vos & Van der
Merwe (1993) 4 Stell LR 3.
9 8 Standard Merchant Bank Ltd v Rowe 1982 (4) SA 671 (W) at 676–7.
9 9 Sugden v Beaconhurst Dairies (Pty) Ltd 1963 (2) SA 174 (E) at 187H; Commercial Union Assurance Co of SA Ltd v Van Zyl 1971 (1) SA 100 (E) 104F–105D;
Goudini Chrome (Pty) Ltd v MCC Contracts (Pty) Ltd 1993 (1) SA 77 (A) at 82I–83B.
100 Swissborough Diamond Mines (Pty) Ltd v Government of the Republic of South Africa 1999 (2) SA 279 (T) at 324F–G; Minister of Land Affairs and Agriculture v
D&F Wevell Trust 2008 (2) SA 184 (SCA) at 200C; Van Zyl v Government of the Republic of South Africa 2008 (3) SA 294 (SCA) at 306D–E; National Adoption
Coalition of South Africa v Head of Department of Social Development for KwaZulu­Natal 2020 (4) SA 284 (KZD) at paragraph [13]; Skema Holdings Proprietary
Limited v Fellner­Feldegg (unreported, KZP case no AR32/22 dated 21 September 2022 — a decision of the full court) at paragraph [52]; RMS Joint Venture CC
t/a Radds Transport v Transnet SOC Limited, Eyamakoshi (unreported, GP case no 038072/2022 dated 15 December 2022) at paragraph [6]; Fine and Country
South Africa (Pty) Ltd v Tradelink Properties (Pty) Ltd (unreported, GJ case no 2024/048486 dated 21 June 2024) at paragraph [31]. In Executive Officer,
Financial Services Board v Dynamic Wealth Ltd 2012 (1) SA 453 (SCA) an extensive report by inspectors appointed by the Registrar of Financial Institutions,
dealing with the activities of the respondent group of companies, formed part of the founding affidavit. The inspectors’ report was based on annexures which
were omitted from the papers but made available to the court and the respondents, and cross­referenced by way of footnotes to the report. The Supreme Court
of Appeal, in rejecting the respondents’ contention that the annexures were not properly before the court and that there was accordingly no admissible direct
evidence of the facts relied upon by the registrar, held that the fact that the annexures were not physically attached to the founding affidavit did not disqualify
them as evidence. Wallis JA stated (at 462A–C):
‘Had they been attached to the founding affidavit there could have been no doubt that they were properly before the court as evidence. Counsel for the
respondents conceded as much. The fact that they were not physically attached to the founding affidavit, cannot affect their status as evidence. That is to place
form over substance. Solely for reasons of convenience, and to avoid the papers being unduly and possibly unnecessarily bulky, they were placed in an identified
separate bundle that was served on the respondents and made available to the court. It was expressly stated that they formed an integral part of the report that
was attached to the founding affidavit. They were properly placed in evidence . . .’
101 Minister of Land Affairs and Agriculture v D&F Wevell Trust 2008 (2) SA 184 (SCA) at 200D; National Adoption Coalition of South Africa v Head of Department
of Social Development for KwaZulu­Natal 2020 (4) SA 284 (KZD) at paragraph [13]; Skema Holdings Proprietary Limited v Fellner­Feldegg (unreported, KZP case
no AR32/22 dated 21 September 2022 — a decision of the full court) at paragraph [52]; Elegant Line Trading 257 CC v Member of the Executive Council for
Transport — Eastern Cape (unreported, ECB case no 104/2022 dated 14 December 2022) at paragraph [9]; Fine and Country South Africa (Pty) Ltd v Tradelink
Properties (Pty) Ltd (unreported, GJ case no 2024/048486 dated 21 June 2024) at paragraph [31].
102 Minister of Land Affairs and Agriculture v D&F Wevell Trust 2008 (2) SA 184 (SCA) at 200E; National Adoption Coalition of South Africa v Head of Department
of Social Development for KwaZulu­Natal 2020 (4) SA 284 (KZD) at paragraph [13]; Fine and Country South Africa (Pty) Ltd v Tradelink Properties (Pty) Ltd
(unreported, GJ case no 2024/048486 dated 21 June 2024) at paragraph [31].
103 Standard Bank of South Africa Ltd v Hand 2012 (3) SA 319 (GSJ) at 321C–D.
104 Standard Bank of South Africa Ltd v Hand 2012 (3) SA 319 (GSJ) at 321D.
105 National Adoption Coalition of South Africa v Head of Department of Social Development for KwaZulu­Natal 2020 (4) SA 284 (KZD) at paragraph [77].
106 Philippi Horticultural Area Food and Farming Campaign v MEC for Local Government, Western Cape 2020 (3) SA 486 (WCC) at paragraph [18] and the cases
there referred to.
107 2023 (6) SA 464 (ECEL).
108 1997 (4) SA 785 (W) at 787H–788H.
109 1992 (4) SA 530 (SE) at 531.
110 Minister van Wet en Orde v Matshoba 1990 (1) SA 280 (A) at 285; Swissborough Diamond Mines (Pty) Ltd v Government of the Republic of South Africa 1999
(2) SA 279 (T) at 324H–I; McDonald t/a Sport Helicopter v Huey Extreme Club 2008 (4) SA 20 (C) at 26B–C; MEC for Health, Gauteng v 3P Consulting (Pty)
Ltd 2012 (2) SA 542 (SCA) at 551C–D.
111 Minister van Wet en Orde v Matshoba 1990 (1) SA 280 (A) at 285F–G; McDonald t/a Sport Helicopter v Huey Extreme Club 2008 (4) SA 20 (C) at 26D; MEC for
Health, Gauteng v 3P Consulting (Pty) Ltd 2012 (2) SA 542 (SCA) at 551C–D.
112 Allen v Van der Merwe 1942 WLD 39 at 47; Heckroodt NO v Gamiet 1959 (4) SA 244 (T) at 246A–C; Van Rensburg v Van Rensburg 1963 (1) SA 505
(A) 509E–510B; Sentrale Kunsmis Korporasie (Edms) Bpk v NKP Kunsmisverspreiders (Edms) Bpk 1970 (3) SA 367 (A) at 404D–G; Minister of Justice v
Nationwide Truck Hire (Pty) Ltd 1981 (4) SA 826 (A) at 833G; Cabinet for the Territory of South West Africa v Chikane 1989 (1) SA 349 (A) at 360F–G; Minister
van Wet en Orde v Matshoba 1990 (1) SA 280 (A) at 285E–I; Angus v Kosviner 1996 (3) SA 215 (W) at 222G–I; Minister of Land Affairs and Agriculture v D&F
Wevell Trust 2008 (2) SA 184 (SCA) at 200B–E; Seale v Van Rooyen NO; Provincial Government, North West Province v Van Rooyen NO 2008 (4) SA 43
(SCA) at 48E; Municipal Manager: Qaukeni Local Municipality v FV General Trading CC 2010 (1) SA 356 (SCA) at 363C–D; MEC for Health, Gauteng v 3P
Consulting (Pty) Ltd 2012 (2) SA 542 (SCA) at 551C–D. The relevance of the evidence offered is dependent on its cogent connection with the relief being sought
in the notice of motion (Kouga Local Municipality v St Francis Bay (Ward 12) Concerned Residents Association 2024 (4) SA 70 (SCA) at paragraph [15] — a case
where the Supreme Court of Appeal determined the appeal strictly with reference to the case advanced by the first respondent in its founding papers and
disregarded extraneous legal issues that the first respondent’s counsel sought to argue based on facts which were not supported by the founding papers (at
paragraphs [17]–[18])).
113 Sections 9(4) and 124 of the Insolvency Act 24 of 1936. The practice in the Western Cape Division of the High Court, Cape Town, in applications for
provisional orders of sequestration is that the Master’s report (incor​porating his certificate that sufficient security as required by s 9(3) of the Insolvency Act has
been given) need not be served on the respondent and is to be lodged with the court prior to the application being set down for hearing (see Standard Bank of
SA Ltd v Court 1993 (3) SA 286 (C) and paragraph 31(3) of the Consolidated Practice Notes of that High Court in Volume 3, Part N1). The same practice prevails
in KwaZulu­Natal (RSA Factors Ltd v Hansen 1983 (4) SA 873 (D)) and in the Northern Cape (Mafeking Creamery Bpk v Mamba Boerdery (Edms) Bpk 1980 (2)
SA 776 (NC)). In the Gauteng Division of the High Court, Pretoria, service on the respondent is required (Arnawil Investments (Pty) Ltd v Stamelman 1972 (2)
SA 13 (W); Rennies Consolidated (Transvaal) (Pty) Ltd v Cooper 1975 (1) SA 165 (T); A Holman Trading Co (Pty) Ltd v Pipeweld Construction & Erection (Pty)
Ltd 1977 (4) SA 360 (T); De Wet NO v Mandelie (Edms) Bpk 1983 (1) SA 544 (T)).
114 Section 346(4) of the Companies Act 61 of 1973, which continues to apply until a date to be determined by the Minister by virtue of the provisions of item
9 of Schedule 5 of the Companies Act 71 of 2008.
115 Section 66(1) of the Close Corporations Act 69 of 1984 read with s 346(4) of the Companies Act 61 of 1973 and read, further, with item 9 of Schedule 5 of the
Companies Act 71 of 2008.
116 Section 4(2) and s 9 of the Insolvency Act 24 of 1936; and s 346(4A) of the Companies Act 61 of 1973, which continues to apply until a date to be determined
by the Minister by virtue of item 9 of Schedule 5 of the Companies Act 71 of 2008.
117 The provisions of Act 61 of 1973 continue to apply to the winding­up and liquidation of companies until a date to be determined by the Minister (item
9 of Schedule 5 of the Companies Act 71 of 2008).
118 See, in this regard, EB Steam Co (Pty) Ltd v Eskom Holdings Soc Ltd 2015 (2) SA 526 (SCA).
119 In Van Zyl v Boat Lodge Investments CC (unreported, KZP case no 9417/2019P dated 31 May 2021) the court, in a liquidation application of a close
corporation where the members of the close corporation sought to intervene, referred to this paragraph and held (at paragraph [36]) that although there was no
specific provision in the Companies Act 71 of 2008 or in rule 6(2) that required service of the application on individual members of a close corporation, the
applicant recognized that the intervening parties were members and consequently, the applicant, at the very least, ought to have served the application on them.
120 As to joinder, see the notes to rule 10 s v ‘General’ below.
121 Collective Investments (Pty) Ltd v Brink 1978 (2) SA 252 (N) at 255G, approved in Enslin v Slabbert, Verster & Malherbe (Noord­Oos Kaap) (Edms) Bpk 1979
(2) SA 983 (O) at 985C and in Turquoise River Incorporated v McMenamin 1992 (3) SA 653 (D) at 657D. In National Director of Public Prosecutions v Mohamed
NO 2003 (4) SA 1 (CC) at paragraphs [28]–[30] the Constitutional Court provides a useful exposition of the historical development of ex parte applications, the
granting of rules nisi and the making of interim orders pending the return day of a rule nisi. See also Kgetlengrivier Concerned Residents v Kgetlengrivier Local
Municipality [2023] 2 All SA 452 (NWM) (a decision of the full court) at paragraphs [23]–[26]; Moshe v Minister of Agriculture, Land Reform and Rural
Development [2023] 2 All SA 776 (NWM) (a decision of the full court) at paragraph [20]. In Simross Vintners (Pty) Ltd v Vermeulen 1978 (1) SA 779 (T) at 783A,
approved in, for example, Sizwe Development v Auditor General, Transkei 1991 (1) SA 291 (Tk) at 292I; National Director of Public Prosecutions v Mohamed
NO 2003 (4) SA 1 (CC) at paragraphs [28]; Kgetlengrivier Concerned Residents v Kgetlengrivier Local Municipality [2023] 2 All SA 452 (NWM) (a decision of the
full court) at paragraph [24] and Moshe v Minister of Agriculture, Land Reform and Rural Development [2023] 2 All SA 776 (NWM) (a decision of the full court) at
paragraph [20], it was stated that an ex parte application is ‘simply an application of which notice was as a fact not given to the person against whom some relief
is claimed in his absence’. See also Ghomeshi­Bozorg v Yousefi 1998 (1) SA 692 (W) at 696D; Investec Employee Benefits Ltd v Electrical Industry KwaZulu­
Natal Pension Fund 2010 (1) SA 446 (W) at 473F–G; Engen Petroleum Ltd v Multi Waste (Pty) Ltd 2012 (5) SA 596 (GSJ) at 599E–G.
122 Mynhardt v Mynhardt 1986 (1) SA 456 (T) at 458H–I.
123 See subrule (2) above.
124 Universal City Studios Inc v Network Video (Pty) Ltd 1986 (2) SA 734 (A) at 753C; Mazetti Management Services (Pty) Ltd v AmaBhungane Centre for
Investigative Journalism NPC 2023 (6) SA 578 (GJ) at paragraph [1]. The facts of this case demonstrate ‘an egregious example of the abuse of the ex parte
procedure’ (at paragraphs [7]–[13]).
125 Safcor Forwarding (Johannesburg) (Pty) Ltd v National Transport Commission 1982 (3) SA 654 (A) at 674H–675A; Turquoise River Incorporated v
McMenamin 1992 (3) SA 653 (D) at 657D; Minister of Environmental Affairs v Recycling and Economic Development Initiative of South Africa NPC 2018 (3) SA
604 (WCC) at 654G–H; National Director of Public Prosecutions v Mohamed NO 2003 (4) SA 1 (CC) at paragraphs [29]–[30]; Kgetlengrivier Concerned Residents
v Kgetlengrivier Local Municipality [2023] 2 All SA 452 (NWM) (a decision of the full court) at paragraph [24]; Moshe v Minister of Agriculture, Land Reform and
Rural Development [2023] 2 All SA 776 (NWM) (a decision of the full court) at paragraph [20]. See further the notes to subrule (8) s v ‘May anticipate the return
date’ below.
126 Enslin v Slabbert, Verster & Malherbe (Noord­Oos Kaap) (Edms) Bpk 1979 (2) SA 983 (O) at 985A–B.
© 2018 127
Juta and Company
Collective (Pty) Ltd.(Pty) Ltd v Brink 1978 (2) SA 252 (N). See also paragraph
Investments Downloaded
8.1.1 of the :Practice
Fri Apr 25 2025of15:31:26
Manual GMT+0200Division
the KwaZulu­Natal (South Africa
of theStandard Time)
High Court
in Volume 3, Part I2.
 McMenamin 1992 (3) SA 653 (D) at 657D; Minister of Environmental Affairs v Recycling and Economic Development Initiative of South Africa NPC 2018 (3) SA
604 (WCC) at 654G–H; National Director of Public Prosecutions v Mohamed NO 2003 (4) SA 1 (CC) at paragraphs [29]–[30]; Kgetlengrivier Concerned Residents
v Kgetlengrivier Local Municipality [2023] 2 All SA 452 (NWM) (a decision of the full court) at paragraph [24]; Moshe v Minister of Agriculture, Land Reform and
Rural Development [2023] 2 All SA 776 (NWM) (a decision of the full court) at paragraph [20]. See further the notes to subrule (8) s v ‘May anticipate the return
date’ below.
126 Enslin v Slabbert, Verster & Malherbe (Noord­Oos Kaap) (Edms) Bpk 1979 (2) SA 983 (O) at 985A–B.
127 Collective Investments (Pty) Ltd v Brink 1978 (2) SA 252 (N). See also paragraph 8.1.1 of the Practice Manual of the KwaZulu­Natal Division of the High Court
in Volume 3, Part I2.
128 Bhyat v Khurishi 1929 TPD 896; Ellis v Stuart 1942 WLD 10; Simross Vintners (Pty) Ltd v Vermeulen 1978 (1) SA 779 (T). In the Gauteng Division of the High
Court, Pretoria, paragraph 1 of Appendix I to the Practice Manual requires that the notice of motion should seek final liquidation (see Volume 3, Part H2). This is
also the position in the Gauteng local seat of the High Court, Johannesburg (see paragraph 10.11.1 of the Practice Manual of that seat of the High Court
in Volume 3, Part H3). As to the effect of the use in such applications of Form 2 in circumstances where Form 2(a) is appropriate, see the notes to subrule (5)(a)
s v ‘As near as may be in accordance with Form 2(a) of the First Schedule’ below.
129 Sheriff African Board of Sheriff v Cibe (unreported, GJ case no 30169/2021 dated 17 March 2022) at paragraph [19].
130 In re: Body Corporate of Caroline Court [2002] 1 All SA 49 (A).
131 In re: Body Corporate of Caroline Court [2002] 1 All SA 49 (A).
132 Mazetti Management Services (Pty) Ltd v AmaBhungane Centre for Investigative Journalism NPC 2023 (6) SA 578 (GJ) at paragraph [45].
133 In re The Leydsdorp & Pietersburg (Transvaal) Estates Ltd 1903 TS 254 at 257, cited with approval in Spilg v Walker 1947 (3) SA 495 (E) at 499. See also
Estate Logie v Priest 1926 AD 312 at 323; Barclays Bank v Giles 1931 TPD 9 at 11; De Jager v Heilbron 1947 (2) SA 415 (W) at 419–20; Mauerberger v
Mauerberger 1948 (3) SA 562 (C); Du Plessis v Gunn 1962 (4) SA 7 (O) at 17H; Lusernvallei (Edms) Bpk v Turner 1964 (4) SA 104 (O) at 107A–E; Adjust
Investments (Pty) Ltd v Wiid 1968 (3) SA 29 (O) at 34D; J W Jagger & Co (Rhodesia) (Wholesaling) (Pvt) Ltd v Mubika 1972 (4) SA 100 (R); United Watch &
Diamond Co (Pty) Ltd v Disa Hotels Ltd 1972 (4) SA 409 (C) at 413D; Godlonton NO v Ryan Scholtz & Co (Pty) Ltd 1978 (4) SA 84 (E) at 87A–E; Schlesinger v
Schlesinger 1979 (4) SA 342 (W) at 348D–350B; Cometal­Mometal SARL v Corlana Enterprises (Pty) Ltd 1981 (2) SA 412 (W) at 414C–H; Reilly v Benigno 1982
(4) SA 365 (C) at 370D–H; H R Holfeld (Africa) Ltd v Karl Walter & Co GmbH (1) 1987 (4) SA 850 (W); Rosenberg v Mbanga (Azaminle Liquor (Pty) Ltd
intervening) 1992 (4) SA 331 (E) at 336H; MV Rizcun Trader (4); MV Rizcun Trader v Manley Appledore Shipping Ltd 2000 (3) SA 776 (C) at 793I–794E; Cubitt v
Stannic [2000] 3 All SA 16 (E) at 18f–g; National Director of Public Prosecutions v Basson 2002 (1) SA 419 (SCA) at 428H–I; Moila v Fitzgerald [2007] 4 All SA
909 (T) at 917a–c; Thint (Pty) Ltd v National Director of Public Prosecutions; Zuma v National Director of Public Prosecutions 2009 (1) SA 1 (CC) at 115A–E;
Berrange NO v Hassan 2009 (2) SA 339 (N) at 354A–G, confirmed on appeal sub nomine Hassan v Berrange NO 2012 (6) SA 329 (SCA) at 335G–H; Fesi v Absa
Bank Ltd 2000 (1) SA 499 (C) at 502H–I; Ex parte Bouwer and Similar Applications 2009 (6) SA 382 (GNP) at 385B–E; Investec Employee Benefits Ltd v
Electrical Industry KwaZulu­Natal Pension Fund 2010 (1) SA 446 (W) at 473E–I; South African Airways Soc v BDFM Publishers (Pty) Ltd 2016 (2) SA 561 (GJ) at
573D and 573I–J, and the cases there referred to; Recycling and Economic Development Initiative of South Africa NPC v Minister of Environmental Affairs 2019
(3) SA 251 (SCA) at 267C–H; Sheriff African Board of Sheriff v Cibe (unreported, GJ case no 30169/2021 dated 17 March 2022) at paragraph [19]; National
Director of Public Prosecutions v Wood [2022] 3 All SA 179 (GJ) (a decision of the full court) at paragraph [102].
134 Cubitt v Stannic [2000] 3 All SA 16 (E) at 18g; Recycling and Economic Development Initiative of South Africa NPC v Minister of Environmental Affairs 2019 (3)
SA 251 (SCA) at 268A.
135 It was made clear in Schlesinger v Schlesinger 1979 (4) SA 342 (W) at 349 and Cometal­Mometal SARL v Corlana Enterprises (Pty) Ltd 1981 (2) SA 412
(W) at 414E that the non­disclosure or suppression of facts need not be wilful or mala fide to incur the penalty of rescission of an order made ex parte. This
position was affirmed in National Director of Public Prosecutions v Basson 2002 (1) SA 419 (SCA) at 428H–I; in Recycling and Economic Development Initiative of
South Africa NPC v Minister of Environmental Affairs 2019 (3) SA 251 (SCA) at 267C–D; and in Makwakwa v Minister of State Security (unreported, SCA case no
1316/2022 dated 5 April 2024) at paragraph [19].
136 Schlesinger v Schlesinger 1979 (4) SA 342 (W) at 348E–350B, cited with approval in Cometal­Mometal SARL v Corlana Enterprises (Pty) Ltd 1981 (2) SA 412
(W) at 414C–E; Trakman NO v Livshitz 1995 (1) SA 282 (A) at 288E–F; Phillips v National Director of Public Prosecutions 2003 (6) SA 447 (SCA) at 455A–B; Absa
Bank Ltd v Ntsane 2007 (3) SA 554 (T) at 562I–563A; Thint (Pty) Ltd v National Director of Public Prosecutions; Zuma v National Director of Public
Prosecutions 2009 (1) SA 1 (CC) at 115D; Berrange NO v Hassan 2009 (2) SA 339 (N) at 354A–G, confirmed on appeal sub nomine Hassan v Berrange NO 2012
(6) SA 329 (SCA) at 335G–H; Investec Employee Benefits Ltd v Electrical Industry KwaZulu­Natal Pension Fund 2010 (1) SA 446 (W) at 473E–I; South African
Airways Soc v BDFM Publishers (Pty) Ltd 2016 (2) SA 561 (GJ) at 573D and 573I–J, and the cases there referred to; Recycling and Economic Development
Initiative of South Africa NPC v Minister of Environmental Affairs 2019 (3) SA 251 (SCA) at 267C–268G. In the Trakman case (supra) it is stressed (at 288F–G)
that the principle does not extend to motion proceedings: material non­disclosure, mala fides, dishonesty and the like in motion proceedings can be dealt with by
making an adverse or punitive order as to costs but cannot serve to deny a litigant substantive relief to which he would otherwise have been entitled.
137 See, for example, In re The Leydsdorp & Pietersburg (Transvaal) Estates Ltd 1903 TS 254; African Realty Trust v Sherman 1907 TH 34; Barclays Bank v Giles
1931 TPD 9.
138 Makwakwa v Minister of State Security (unreported, SCA case no 1316/2022 dated 5 April 2024) at paragraph [19].
139 These factors are listed in Phillips v National Director of Public Prosecutions 2003 (6) SA 447 (SCA) at 455B–C and in Makwakwa v Minister of State Security
(unreported, SCA case no 1316/2022 dated 5 April 2024) at paragraph [20]. See also Berrange NO v Hassan 2009 (2) SA 339 (N) at 354G and Recycling and
Economic Development Initiative of South Africa NPC v Minister of Environmental Affairs 2019 (3) SA 251 (SCA) at 268F–H.
140 The absence of acceptable reasons for the failure to disclose a material fact is one of the factors which the court will take into account in exercising its
discretion whether to grant or deny the relief sought (Ex parte Madikiza et uxor 1995 (4) SA 433 (TkS) at 437A).
141 Cometal­Mometal SARL v Corlana Enterprises (Pty) Ltd 1981 (2) SA 412 (W) at 414H.
142 Recycling and Economic Development Initiative of South Africa NPC v Minister of Environmental Affairs 2019 (3) SA 251 (SCA) at 267F–H.
143 Vernall v Naested 1924 SR 103; Wilkies Continental Circus v De Raedts Circus 1958 (2) SA 598 (SWA) at 604A–605B; J W Jagger & Co (Rhodesia)
(Wholesaling) (Pvt) Ltd v Mubika 1972 (4) SA 100 (R).
144 1979 (4) SA 342 (W). See also Moila v Fitzgerald [2007] 4 All SA 909 (T) at 921f–g.
145 Dana v Byron 1935 (1) PH F8 (N).
146 Rule 27(4).
147 Afriforum NPC v Nelson Mandela Foundation Trust 2023 (4) SA 1 (SCA) at paragraphs [70]–[71].
148 Kouga Local Municipality v St Francis Bay (Ward 12) Concerned Residents Association 2024 (4) SA 70 (SCA) at paragraph [15].
149 Van Zyl Judicial Practice at 367.
150 1965 (3) SA 407 (W).
151 At 409; and see Movienet Networks (Pty) Ltd v Motus Ford Culemborg (unreported, WCC case no 13781/2024 dated 2 September 2024) at paragraph 67 and
the cases there referred to. In Johannesburg City Council v Bruma Thirty­Two (Pty) Ltd 1984 (4) SA 87 (T) Coetzee J also stated that, in modern practice, the
prayer for alternative relief is ‘redundant and mere verbiage’ (at 93F).
152 Unreported, GJ case no 2010/16410 dated 21 May 2012.
153 At paragraph [14]. See also Maleho 740822 (Pty) Ltd v Maboho (unreported, NWM case no M336/2022 dated 15 February 2024).
154 Queensland Insurance Co Ltd v Banque Commerciale Africaine 1946 AD 272 at 286; and see Johannesburg City Council v Bruma Thirty­Two (Pty) Ltd 1984
(4) SA 87 (T).
155 Port Nolloth Municipality v Xhalisa 1991 (3) SA 98 (C) at 112D–G; Combustion Technology (Pty) Ltd v Technoburn (Pty) Ltd 2003 (1) SA 265 (C) at 268B–J.
See also Luzon Investments (Pty) Ltd v Strand Municipality 1990 (1) SA 215 (C) at 229H; Mgoqi v City of Cape Town; City of Cape Town v Mgoqi 2006 (4) SA 355
(C) at 362F–363B; MN v FN 2020 (2) SA 410 (SCA) at paragraph [26]; Somali Association of South Africa v Refugee Appeal Board 2022 (3) SA 166 (SCA) at
paragraph [97] (a case in which substantive relief not fore​shadowed in the notice of motion in the court a quo, was sought on appeal, and refused); Movienet
Networks (Pty) Ltd v Motus Ford Culemborg (unreported, WCC case no 13781/2024 dated 2 September 2024) at paragraph 65.
156 Port Nolloth Municipality v Xhalisa 1991 (3) SA 98 (C) at 112D–F; Genesis One Lighting (Pty) Ltd v Jamieson (unreported, GJ case no 3212/2109 dated 7
August 2024) at paragraph [17]; Movienet Networks (Pty) Ltd v Motus Ford Culemborg (unreported, WCC case no 13781/2024 dated 2 September 2024) at
paragraph 66; and see Somali Association of South Africa v Refugee Appeal Board 2022 (3) SA 166 (SCA) at paragraph [97] (a case in which substantive relief
not foreshadowed in the notice of motion in the court a quo, was sought on appeal, and refused).
157 See s 32 of the Superior Courts Act 10 of 2013.
158 Schlesinger v Schlesinger 1979 (4) SA 342 (W) at 347F; Trakman NO v Livshitz 1995 (1) SA 282 (A) at 288E.
159 Gallagher v Norman’s Transport Lines (Pty) Ltd 1992 (3) SA 500 (W) at 502E.
160 Mynhardt v Mynhardt 1986 (1) SA 456 (T); Gouws v Scholtz 1989 (4) SA 315 (NC) at 320I; a contrary view was taken in Simross Vintners (Pty) Ltd v
Vermeulen 1978 (1) SA 779 (T). See also Patcor Quarries CC v Issroff 1998 (4) SA 1069 (SE) 1075A–B.
161 Gallagher v Norman’s Transport Lines (Pty) Ltd 1992 (3) SA 500 (W) at 502E–503C.
162 Nelson Mandela Metropolitan Municipality v Greyvenouw CC 2004 (2) SA 81 (SE) at 94H–96C.
163 Rule 4(1)(aA); Willies v Willies 1973 (3) SA 257 (D). See also rule 6(11) and (12).
164 See the notes to s 24 of the Superior Courts Act 10 of 2013 s v ‘Civil summons’ in Volume 1 third edition, Part D.
165 SB Guarantee Company (Pty) Ltd v TS Tshantsha Attorneys (Pty) Ltd (unreported, GJ case no 04586/2022 dated 10 July 2023). An important feature in this
case was that the respondent, notwithstanding the absence of a date by when the notice of intention to oppose the appllication had to be delivered in the notice
of motion, delivered its notice of intention to oppose the application as well as its answering affidavit prior to the hearing of the application on the unopposed
motion court roll. The respondent did not avail itself of the remedies under rule 30 (at paragraph [12]).
166 In terms of rule 27(3).
167 Turquoise River Incorporated v McMenamin 1992 (3) SA 653 (D) at 657D.
168 Mashaba v The Judicial Commission of Inquiry Into Allegations of State Capture, Corruption and Fraud In The Public Sector, Including Organs of State
(unreported, GP case no 14261/21 dated 16 August 2022) at paragraph [15].
169 Meme­Akpta v Unlawful Occupiers at 44 Nugget Street 2023 (3) SA 649 (GJ) at paragraph [13]; Mashaba v The Judicial Commission of Inquiry Into Allegations
of State Capture, Corruption and Fraud In The Public Sector, Including Organs of State (unreported, GP case no 14261/21 dated 16 August 2022) at paragraph
[12].
© 2018 170
Juta and Companyv(Pty)
Meme­Akpta Ltd. Occupiers at 44 Nugget Street 2023 (3) SA 649 (GJ) at paragraph
Unlawful Downloaded[18];: Fri Apr 25v2025
Mashaba 15:31:26Commission
The Judicial GMT+0200of (South Africa
Inquiry IntoStandard Time)
Allegations
of State Capture, Corruption and Fraud In The Public Sector, Including Organs of State (unreported, GP case no 14261/21 dated 16 August 2022) at paragraphs
 167 Turquoise River Incorporated v McMenamin 1992 (3) SA 653 (D) at 657D.
168 Mashaba v The Judicial Commission of Inquiry Into Allegations of State Capture, Corruption and Fraud In The Public Sector, Including Organs of State
(unreported, GP case no 14261/21 dated 16 August 2022) at paragraph [15].
169 Meme­Akpta v Unlawful Occupiers at 44 Nugget Street 2023 (3) SA 649 (GJ) at paragraph [13]; Mashaba v The Judicial Commission of Inquiry Into Allegations
of State Capture, Corruption and Fraud In The Public Sector, Including Organs of State (unreported, GP case no 14261/21 dated 16 August 2022) at paragraph
[12].
170 Meme­Akpta v Unlawful Occupiers at 44 Nugget Street 2023 (3) SA 649 (GJ) at paragraph [18]; Mashaba v The Judicial Commission of Inquiry Into Allegations
of State Capture, Corruption and Fraud In The Public Sector, Including Organs of State (unreported, GP case no 14261/21 dated 16 August 2022) at paragraphs
[12] and [14].
171 Mashaba v The Judicial Commission of Inquiry Into Allegations of State Capture, Corruption and Fraud In The Public Sector, Including Organs of State
(unreported, GP case no 14261/21 dated 16 August 2022) at paragraph [21].
172 In Mobile Telephone Networks (Pty) Ltd v Sugarberry Trading 239 CC (unreported, NWM case no 1503/2021 dated 19 January 2023) it was held (at
paragraphs [21]–[30]) that the dies non period provided for in the first proviso is applicable to the period within which a plaintiff must deliver its application for
summary judgment under rule 32(2)(a). It is submitted that, having regard to the specific purpose of the first proviso, its clear and unambiguous wording, and
the proper interpretation thereof, the judgment is wrong. Condonation/an extension of time under rule 27 can be applied for by a plaintiff who has delivered its
application for summary judgment out of time.
173 By GN R2410 of September 1991.
174 The decision in Frölich v Flaschner 1980 (4) SA 17 (W) is, therefore, no longer applicable.
175 On application in terms of rule 27.
176 See, for example, Grootboom v National Prosecuting Authority 2014 (2) SA 68 (CC) at 75H–76A.
177 Ferreiras (Pty) Ltd v Naidoo 2022 (1) SA 201 (GJ) at paragraph [18].
178 In Pangbourne Properties Ltd v Pulse Moving CC 2013 (3) SA 140 (GSJ) the respondents filed their answering affidavits approximately nine days late. The
applicant filed its replying affidavit some ten months later. Neither party brought an application for condonation for the late filing of its affidavit, nor availed itself
of the remedies pertaining to irregular steps contained in rule 30. The respondents argued that the replying affidavit fell to be disregarded. Wepener J held (at
147G–148I) that it was unnecessary for either of the parties to have brought a substantive application for condonation. All the papers were before court and the
matter was ready to be dealt with. To uphold the argument that the replying affidavit (and, consequently, also the answering affidavit) fell to be disregarded
because they were filed out of time, was too formalistic and an exercise in futility, and would have left the parties to commence the same proceedings on the
same facts de novo. There was no allegation of prejudice to any party nor was the court referred to any such prejudice were the matter to be disposed of on its
merits, despite the late filing of the respective affidavits. It was in the interests of justice that the affidavits were taken into account and that the case was
finalized and unnecessary additional costs avoided. See also Ardnamurchan Estates (Pty) Limited v Renewables Cookhouse Wind Farms 1 (RF) (Pty) Ltd [2021] 1
All SA 829 (ECG) at paragraphs 50­59.
179 Rule 41A(2)(b).
180 Rule 41A(2)(c).
181 Rule 41A(2)(d).
182 Moosa v Knox 1949 (3) SA 327 (N) at 331. See, for example, United Methodist Church of South Africa v Sokufundumala 1989 (4) SA 1055 (O) at 1059A;
Ebrahim v Georgoulas 1992 (2) SA 151 (B) at 153D.
183 Peterson v Cuthbert & Co Ltd 1945 AD 420 at 428–9; Room Hire Co (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd 1949 (3) SA 1155 (T) at 1163 and 1165;
Soffiantini v Mould 1956 (4) SA 150 (E) at 154F; Engar v Omar Salem Essa Trust 1970 (1) SA 77 (N) at 83E; Plascon­Evans Paints Ltd v Van Riebeeck Paints (Pty)
Ltd 1984 (3) SA 623 (A) at 634I–635A; Tsenoli v State President of the Republic of South Africa 1992 (3) SA 37 (D) at 41E–F.
184 Wightman t/a JW Construction v Headfour (Pty) Ltd 2008 (3) SA 371 (SCA) at 375G; National Scrap Metal (Cape Town) (Pty) Ltd v Murray & Roberts Ltd 2012
(5) SA 300 (SCA) at 305E; Grancy Property Ltd v Manala 2015 (3) SA 321 (SCA) at 320C–321A; Centaur Mining South Africa (Pty) Ltd v Cloete Murray NO 2023
(1) SA 499 (GJ) at paragraph [15].
185 Gemeenskapontwikkelingsraad v Williams (2) 1977 (3) SA 955 (W) at 957E. See also Room Hire Co (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd 1949 (3) SA
1155 (T) at 1163 in fin; Saflec Security Systems (Pty) Ltd v Group Five Building (East Cape) (Pty) Ltd 1990 (4) SA 626 (E) at 631D.
186 Room Hire Co (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd 1949 (3) SA 1155 (T) at 1164; Klep Valves (Pty) Ltd v Saunders Valve Co Ltd 1987 (2) SA 1 (A) at
24B–C.
187 Kelleher v Minister of Defence 1983 (1) SA 71 (E) at 75C.
188 Reynolds NO v Mecklenberg (Pty) Ltd 1996 (1) SA 75 (W) at 79A–F. In Retrofit (Pvt) Ltd v Posts and Telecommunications Corporation 1996 (1) SA 847
(ZSC) the Zimbabwe Supreme Court disallowed half of the costs in respect of the preparation of a ‘voluminous answering affidavit which contained much
irrelevant, unnecessarily disparaging and argumentative matter’ (at 867H).
189 Randfontein Extension Ltd v South Randfontein Mines Ltd 1936 WLD 1 at 4–5; Du Toit v Fourie 1965 (4) SA 122 (O) at 128G–129C; Bader v Weston 1967 (1)
SA 134 (C) at 136E–137C; Lipschitz & Schwartz NNO v Markowitz 1976 (3) SA 772 (W) at 776A–C; Moskovitz v Meteor Records (Pty) Ltd 1978 (3) SA 996 (C);
Standard Bank of South Africa Ltd v RTS Techniques and Planning (Pty) Ltd 1992 (1) SA 432 (T) at 441F–442J; Ebrahim v Georgoulas 1992 (2) SA 151 (B) at
154D–G; Selesho NO v Mangoejane (unreported, FB case no 1372/2024 dated 3 October 2024) at paragraph [13].
190 Bader v Weston 1967 (1) SA 134 (C) at 136H–137A; Selesho NO v Mangoejane (unreported, FB case no 1372/2024 dated 3 October 2024) at paragraph [13].
191 By De Villiers J in his dissenting judgment in Standard Bank of South Africa Ltd v RTS Techniques and Planning (Pty) Ltd 1992 (1) SA 432 (T) which is reported
sub nomine Standard Bank of South Africa Ltd v RTS Techniques and Planning (Pty) Ltd 1992 (2) SA 532 (T).
192 Minister of Finance v Public Protector 2022 (1) SA 244 (GP) at paragraphs [6]–[15].
193 Boxer Superstores Mthatha and Another v Mbenya 2007 (5) SA 450 (SCA) at 452F–G; Absa Bank Ltd v Prochaska t/a Bianca Cara Interiors 2009 (2) SA 512
(D) at 514I–J.
194 De Wet v Khammissa (unreported, SCA case no 358/2020 dated 4 June 2021) at paragraph [14]; Snyman v De Kooker NO 2024 (6) SA 146 (SCA) at
paragraph [24]; Botha v Smuts 2024 (12) BCLR 1477 (CC) at paragraph [66].
195 Simmons NO v Gilbert Hamer & Co Ltd 1963 (1) SA 897 (N) at 903C. See further the notes to subrule (1) s v ‘The facts upon which the applicant relies for
relief’ above.
196 Angus v Kosviner 1996 (3) SA 215 (W) at 222G–I.
197 See Valentino Globe BV v Phillips 1998 (3) SA 775 (SCA) at 779F.
198 Taylor v Welkom Theatres (Pty) Ltd 1954 (3) SA 339 (O) at 345A; Aspek Pipe Co (Pty) Ltd v Mauerberger 1968 (1) SA 517 (C) at 519F–H; Hart v Pinetown
Drive­In Cinema (Pty) Ltd 1972 (1) SA 464 (D) at 465F; Pearson v Magrep Investments (Pty) Ltd 1975 (1) SA 186 (D) at 187D–F; Poseidon Ships Agencies (Pty)
Ltd v African Coaling and Exporting Co (Durban) (Pty) Ltd 1980 (1) SA 313 (D) at 315C; Erasmus v Pentamed Investments (Pty) Ltd 1982 (1) SA 178 (W) at
181A; Switchboard Manufacturers (Natal) (Pty) Ltd v Anmor Electrical Contractors (Pty) Ltd 1982 (2) SA 244 (D) at 245F; Bowman NO v De Souza Roldao 1988
(4) SA 326 (T) at 327I–328A; Hubby’s Investments (Pty) Ltd v Lifetime Properties (Pty) Ltd 1998 (1) SA 295 (W) at 297A–E.
199 Valentino Globe BV v Phillips 1998 (3) SA 775 (SCA) at 779G.
200 Valentino Globe BV v Phillips 1998 (3) SA 775 (SCA) at 779G–780A.
201 2019 (3) SA 97 (SCA).
202 At 106C–J.
203 Mauerberger v Mauerberger 1948 (3) SA 731 (C) at 732; Schreuder v Viljoen 1965 (2) SA 88 (O); Titty’s Bar and Bottle Store (Pty) Ltd v ABC Garage (Pty)
Ltd 1974 (4) SA 362 (T) at 368H–369B; Shakot Investments (Pty) Ltd v Town Council of the Borough of Stanger 1976 (2) SA 701 (D) at 704F–H; Pat Hinde &
Sons Motors (Brakpan) (Pty) Ltd v Carrim 1976 (4) SA 58 (T) at 63A; Shephard v Tuckers Land and Development Corporation (Pty) Ltd (1) 1978 (1) SA 173
(W) at 177G; Masenya v Seleka Tribal Authority 1981 (1) SA 522 (T) at 524G; Wiese v Joubert 1983 (4) SA 182 (O) at 194F; Shepherd v Mitchell Cotts Seafreight
(SA) (Pty) Ltd 1984 (3) SA 202 (T) at 205E; Port Nolloth Municipality v Xhalisa 1991 (3) SA 98 (C) at 111E; Tumisi v African National Congress 1997 (2) SA 741
(O) at 746A–C; Ferreira v Premier, Free State 2000 (1) SA 241 (O) at 254A; M & V Tractor & Implement Agencies Bk v Vennootskap D S U Cilliers & Seuns;
Hoogkwartier Landgoed; Olierivier Landgoed (Edms) Bpk (Kelrn Vervoer (Edms) Bpk Tussenbeitredend) 2000 (2) SA 571 (N) at 580A–C; South Peninsula
Municipality v Evans 2001 (1) SA 271 (C) at 280I–281A; Union Finance Holdings Ltd v I S Mirk Office Machines II (Pty) Ltd 2001 (4) SA 842 (W) at 847D–E; Rens
v Gutman NO [2002] 4 All SA 30 (C); Eagles Landing Body Corporate v Molewa NO 2003 (1) SA 412 (T) at 423I; National Council of Societies for the Prevention
of Cruelty to Animals v Openshaw 2008 (5) SA 339 (SCA) at 349A–B; Minister of Safety and Security v Jongwa 2013 (3) SA 455 (ECG) at 462A–B; York Timbers
(Pty) Ltd v National Director of Public Prosecutions 2015 (3) SA 122 (GP) at 135E–F; Gold Fields Ltd v Motley Rice LLC 2015 (4) SA 299 (GJ) at 325I–326A;
Brayton Carlswald (Pty) Ltd v Brews 2017 (5) SA 498 (SCA) at 507I–J; Passenger Rail Agency of South Africa v Swifambo Rail Agency (Pty) Ltd 2017 (6) SA 223
(GJ) at 227E–228I; Mostert v FirstRand Bank Ltd t/a RMB Private Bank 2018 (4) SA 443 (SCA) at 448D–E; Global Environmental Trust v Tendele Coal Mining
(Pty) Ltd (Centre for Environmental Rights and others as amici curiae) [2021] 2 All SA 1 (SCA) at paragraph [96]; Trustees, Bymyam Trust v Butcher Shop &
Grill CC 2022 (2) SA 99 (WCC) at paragraph [54]; Botha v Smuts 2024 (12) BCLR 1477 (CC) at paragraph [58]. See also the notes to subrule (1) s v ‘The facts
upon which the applicant relies for relief’ above.
204 Bayat v Hansa 1955 (3) SA 547 (N) at 553C–G; Shakot Investments (Pty) Ltd v Town Council of the Borough of Stanger 1976 (2) SA 701 (D) at 704G–H;
Shephard v Tuckers Land and Development Corporation (Pty) Ltd (1) 1978 (1) SA 173 (W) at 178A; Dawood v Mahomed 1979 (2) SA 361 (D) at 364E; Baeck &
Co SA (Pty) Ltd v Van Zummeren 1982 (2) SA 112 (W) at 116A–E; Skjelbreds Rederi A/S v Hartless (Pty) Ltd 1982 (2) SA 739 (W) at 742D; Bowman NO v De
Souza Roldao 1988 (4) SA 326 (T) at 327H; Djama v Government of the Republic of Namibia 1993 (1) SA 387 (Nm) at 391F; Body Corporate, Shaftesbury
Sectional Title Scheme v Rippert’s Estate 2003 (5) SA 1 (C) at 6D–E; South African Heritage Resources Agency v Arniston Hotel (Pty) Ltd 2007 (2) SA 461 (C) at
477F–478F; Finishing Touch 163 (Pty) Ltd v BHP Billiton Energy Coal South Africa Ltd 2013 (2) SA 204 (SCA) at 212B–C; Mostert v FirstRand Bank Ltd t/a RMB
Private Bank 2018 (4) SA 443 (SCA) at 448D–F; Trustees, Bymyam Trust v Butcher Shop & Grill CC 2022 (2) SA 99 (WCC) at paragraphs [54]–[55]. See also
Lagoon Beach Hotel (Pty) Ltd v Lehane NO 2016 (3) SA 143 (SCA) in which it was held (at 152G–H) that in an application which is moved as one of urgency,
courts are commonly sympathetic to an applicant and often allow papers to be amplified in reply, subject of course to the right of a respondent to file further
answering papers.
205 Mostert v FirstRand Bank Ltd t/a RMB Private Bank 2018 (4) SA 443 (SCA) at 448F–G; Kwadukuza Municipality v Stangvest Investments (Pty) Ltd (unreported,
KZP case no AR134/22 dated 16 October 2023) at paragraph [33] (where the text to this footnote is referred to with approval by the full court); AD Trade
Belgium SPRL Private Limited v Central Bank of Guinea [2024] 2 All SA 806 (GP) at paragraph [64] (where the text to this footnote is referred to with approval
by the court). In Trustees, Bymyam Trust v Butcher Shop & Grill CC 2022 (2) SA 99 (WCC) it was held (at paragraph [56]) that the court, in the exercise of its
discretion, must also have regard to the procedural history of the particular matter.
© 2018 Juta and Company (Pty) Ltd. Downloaded : Fri Apr 25 2025 15:31:26 GMT+0200 (South Africa Standard Time)
206 Driefontein Consolidated Gold Mines Ltd v Schlochauer 1902 TS 33 at 38; Registrar of Insurance v Johannesburg Insurance Co Ltd (1) 1962 (4) SA 546 (W);
Kleynhans v Van der Westhuizen NO 1970 (1) SA 565 (O) at 568F; Cohen NO v Nel 1975 (3) SA 963 (W) at 966F; Shakot Investments (Pty) Ltd v Town Council of
 answering papers.
205 Mostert v FirstRand Bank Ltd t/a RMB Private Bank 2018 (4) SA 443 (SCA) at 448F–G; Kwadukuza Municipality v Stangvest Investments (Pty) Ltd (unreported,
KZP case no AR134/22 dated 16 October 2023) at paragraph [33] (where the text to this footnote is referred to with approval by the full court); AD Trade
Belgium SPRL Private Limited v Central Bank of Guinea [2024] 2 All SA 806 (GP) at paragraph [64] (where the text to this footnote is referred to with approval
by the court). In Trustees, Bymyam Trust v Butcher Shop & Grill CC 2022 (2) SA 99 (WCC) it was held (at paragraph [56]) that the court, in the exercise of its
discretion, must also have regard to the procedural history of the particular matter.
206 Driefontein Consolidated Gold Mines Ltd v Schlochauer 1902 TS 33 at 38; Registrar of Insurance v Johannesburg Insurance Co Ltd (1) 1962 (4) SA 546 (W);
Kleynhans v Van der Westhuizen NO 1970 (1) SA 565 (O) at 568F; Cohen NO v Nel 1975 (3) SA 963 (W) at 966F; Shakot Investments (Pty) Ltd v Town Council of
the Borough of Stanger 1976 (2) SA 701 (D) at 705A–B; Cowburn v Nasopie (Edms) Bpk 1980 (2) SA 547 (NC) at 565B–D; Shepherd v Mitchell Cotts Seafreight
(SA) (Pty) Ltd 1984 (3) SA 202 (T) at 205F; Pienaar v Thusano Foundation 1992 (2) SA 552 (B) at 578C–D; Finishing Touch 163 (Pty) Ltd v BHP Billiton Energy
Coal South Africa Ltd 2013 (2) SA 204 (SCA) at 212C–D. See also Masstores (Pty) Ltd v Pick ’n Pay Retailers (Pty) Ltd 2016 (2) SA 586 (SCA) at 591C–F.
207 Triomf Kunsmis (Edms) Bpk v AE & CI Bpk 1984 (2) SA 261 (W) at 270A; Johannesburg City Council v Bruma Thirty­Two (Pty) Ltd 1984 (4) SA 87 (T) at 91F–
92F; Kwinana v Ngonyama (unreported, SCA case no 103/2021 dated 8 April 2022) at paragraph [12].
208 Poseidon Ships Agencies (Pty) Ltd v African Coaling and Exporting Co (Durban) (Pty) Ltd 1980 (1) SA 313 (D) at 316A.
209 Minister van Wet en Orde v Matshoba 1990 (1) SA 280 (A) at 286C.
210 eBotswana (Pty) Ltd v Sentech (Pty) Ltd 2013 (6) SA 327 (GSJ) at 336G–H. It was held (at 336H–I) that a common­sense approach based on want of
prejudice should be applied in deciding to allow the further corroborating facts to be set out in the replying affidavit. See also Bousaada (Pty) Limited v FCB
Africa (Pty) Limited (unreported, GJ case nos 16949/2021; 29891/2021 dated 14 June 2023) at paragraph [16].
211 2003 (6) SA 407 (SCA) at 439G–H.
212 2008 (3) SA 294 (SCA) at 307G–H. See also Wingaardt v Grobler 2010 (6) SA 148 (ECG) at 152G–153A.
213 See, inter alia, Standard Bank of SA Ltd v Sewpersadh 2005 (4) SA 148 (C) at 153G–H; Amedee v Fidele (unreported, GJ case no 20/9529 dated 20
December 2021) at paragraph [74]; Garnnett­Adams Properties (Pty) Ltd v Thomas (unreported, GJ case no 029983/2023 dated 4 June 2024) at paragraph [14].
214 Bader v Weston 1967 (1) SA 134 (C) at 138D; Dickinson v South African General Electric Co (Pty) Ltd 1973 (2) SA 620 (A) at 628F; Cohen NO v Nel 1975 (3)
SA 963 (W) at 970B; Dawood v Mahomed 1979 (2) SA 361 (D) at 365H; Nampesca (SA) Products (Pty) Ltd v Zaderer 1999 (1) SA 886 (C) at 892J–893A;
Dhladhla v Erasmus 1999 (1) SA 1065 (LCC) at 1072D; South Peninsula Municipality v Evans 2001 (1) SA 271 (C) at 283A–H; Amedee v Fidele (unreported, GJ
case no 20/9529 dated 20 December 2021) at paragraph [74]; Garnnett­Adams Properties (Pty) Ltd v Thomas (unreported, GJ case no 029983/2023 dated 4
June 2024) at paragraph [14]; De Kock v Du Plessis (unreported, SCA case no 284/2023 dated 24 July 2024) at paragraph [24] (where this sentence is referred
to with approval by the Supreme Court of Appeal).
215 Standard Bank of SA Ltd v Sewpersadh 2005 (4) SA 148 (C) at 153H; Sealed Africa (Pty) Ltd v Kelly 2006 (3) SA 65 (W) at 67B–E; Hano Trading CC v JR 209
Investments (Pty) Ltd 2013 (1) SA 161 (SCA) at 165A–C; Du Toit v Human N.O. (unreported, WCC case no 3063/2023 dated 2 November 2023 — a decision of
the full bench) at paragraphs 363–371. See also Waltloo Meat and Chicken SA (Pty) Ltd v Silvy Luis (Pty) Ltd 2008 (5) SA 461 (T) at 472H–472J.
216 Standard Bank of SA Ltd v Sewpersadh 2005 (4) SA 148 (C) at 153H–154J.
217 James Brown & Hamer (Pty) Ltd (previously named Gilbert Hamer & Co Ltd) v Simmons NO 1963 (4) SA 656 (A) at 660E; Dawood v Mahomed 1979 (2) SA
361 (D) at 364G–H; Nampesca (SA) Products (Pty) Ltd v Zaderer 1999 (1) SA 886 (C) at 892J–893A; Dhladhla v Erasmus 1999 (1) SA 1065 (LCC) at 1072D;
South Peninsula Municipality v Evans 2001 (1) SA 271 (C) at 283A–H; Hano Trading CC v JR 209 Investments (Pty) Ltd 2013 (1) SA 161 (SCA) at 164E–G; M&G
Media Ltd v President of the Republic of South Africa 2013 (3) SA 591 (GNP) at 600B–D; Amedee v Fidele (unreported, GJ case no 20/9529 dated 20 December
2021) at paragraphs [78] and [79]; Garnnett­Adams Properties (Pty) Ltd v Thomas (unreported, GJ case no 029983/2023 dated 4 June 2024) at paragraph [15].
218 Transvaal Racing Club v Jockey Club of South Africa 1958 (3) SA 599 (W) at 604A–E; Kasiyamhuru v Minister of Home Affairs 1999 (1) SA 643 (W) at 649H–
650D; Nampesca (SA) Products (Pty) Ltd v Zaderer 1999 (1) SA 886 (C) at 892J–893A; Dhladhla v Erasmus 1999 (1) SA 1065 (LCC) at 1072D; South Peninsula
Municipality v Evans 2001 (1) SA 271 (C) at 283A–H. See also Rhoode v De Kock 2013 (3) SA 123 (SCA) at 129C–D; M&G Media Ltd v President of the Republic
of South Africa 2013 (3) SA 591 (GNP) at 600A; Gold Fields Ltd v Motley Rice LLC 2015 (4) SA 299 (GJ) at 326C–G (where the court condemned the laxity and
non­adherence to the rules relating to three sets of affidavits); Amedee v Fidele (unreported, GJ case no 20/9529 dated 20 December 2021) at paragraphs [75]
and [79].
219 Afric Oil (Pty) Ltd v Ramadaan Investments CC 2004 (1) SA 35 (N) at 38J–39A.
220 Milne NO v Fabric House (Pty) Ltd 1957 (3) SA 63 (N) at 65A; Broode NO v Maposa 2018 (3) SA 129 (WCC) at 137G; Amedee v Fidele (unreported, GJ case
no 20/9529 dated 20 December 2021) at paragraph [79]; Garnnett­Adams Properties (Pty) Ltd v Thomas (unreported, GJ case no 029983/2023 dated 4 June
2024) at paragraph [16].
221 Transvaal Racing Club v Jockey Club of South Africa 1958 (3) SA 599 (W) at 604A–E; Broode NO v Maposa 2018 (3) SA 129 (WCC) at 137G–138A; Amedee v
Fidele (unreported, GJ case no 20/9529 dated 20 December 2021) at paragraph [79].
222 See also Garnnett­Adams Properties (Pty) Ltd v Thomas (unreported, GJ case no 029983/2023 dated 4 June 2024) at paragraph [16].
223 2009 (5) SA 629 (W) at 641G–642D.
224 Porterstraat 69 Eiendomme (Pty) Ltd v PA Venter Worcester (Pty) Ltd 2000 (4) SA 598 (C) at 617A–E, where Davis J summarized the considerations laid down
in Mkwanazi v Van der Merwe 1970 (1) SA 609 (A) at 626A–G and Barclays Western Bank Ltd v Gunas 1981 (3) SA 91 (D) at 95C–95E; Hano Trading CC v JR
209 Investments (Pty) Ltd 2013 (1) SA 161 (SCA) at 164E–165A; National Credit Regulator v National Consumer Tribunal [2024] 1 All SA 67 (SCA) at paragraphs
[53]–[54]; Garnnett­Adams Properties (Pty) Ltd v Thomas (unreported, GJ case no 029983/2023 dated 4 June 2024) at paragraph [16]. See also Kootbodien v
Mitchell’s Plain Electrical Plumbing & Building CC 2011 (4) SA 624 (WCC) at 627C–E.
225 Transvaal Racing Club v Jockey Club of South Africa 1958 (3) SA 599 (W) at 604A–F; Zarug v Parvathie NO 1962 (3) SA 872 (D) at 874A–B; Parow
Municipality v Joyce & McGregor (Pty) Ltd 1973 (1) SA 937 (C) at 939A–C; Cohen NO v Nel 1975 (3) SA 963 (W) at 966A–B; Dawood v Mahomed 1979 (2) SA
361 (D) at 365A–C; Kasiyamhuru v Minister of Home Affairs 1999 (1) SA 643 (W) at 650D; Standard Bank of SA Ltd v Sewpersadh 2005 (4) SA 148 (C) at 154
D–F; Hano Trading CC v JR 209 Investments (Pty) Ltd 2013 (1) SA 161 (SCA) at 164G–165A; Garnnett­Adams Properties (Pty) Ltd v Thomas (unreported, GJ
case no 029983/2023 dated 4 June 2024) at paragraphs [16]–[17]. See also Waltloo Meat and Chicken SA (Pty) Ltd v Silvy Luis (Pty) Ltd 2008 (5) SA 461 (T) at
473A–B; M&G Media Ltd v President of the Republic of South Africa 2013 (3) SA 591 (GNP) at 599I–600E.
226 James Brown & Hamer (Pty) Ltd (previously named Gilbert Hamer & Co Ltd) v Simmons NO 1963 (4) SA 656 (A) at 660F; M&G Media Ltd v President of the
Republic of South Africa 2013 (3) SA 591 (GNP) at 600B–E; and see Dhladhla v Erasmus 1999 (1) SA 1065 (LCC) for the procedure in the Land Claims Court.
227 Director of Hospital Services v Mistry 1979 (1) SA 626 (A); South Peninsula Municipality v Evans 2001 (1) SA 271 (C) at 284D.
228 Staufen Investments (Pty) Ltd v Minister of Public Works 2019 (2) SA 295 (ECP) at 316G–317A.
229 Anthony Johnson Contractors (Pty) Ltd v D’Oliveira 1999 (4) SA 728 (C) at 731E–H.
230 Nordberg Inc v AQTN Services CC 1998 (3) SA 531 (T).
231 Cf Davids v Van Straaten 2005 (4) SA 468 (C) at 479D–F.
232 National Director of Public Prosecutions v Zuma 2009 (2) SA 277 (SCA) at 290D–E, approved and followed in African Congress for Transformation v Electoral
Commission of South Africa; Labour Party of South Africa v Electoral Commission of South Africa; Afrikan Alliance of Social Democrats v Electoral Commission of
South Africa 2024 (8) BCLR 987 (CC) at paragraph [95]. See also Cooper and Another NNO v Curro Heights Properties (Pty) Ltd 2023 (5) SA 402 (SCA) at
paragraph [13].
233 The general rule as stated in Stellenbosch Farmers’ Winery Ltd v Stellenvale Winery (Pty) Ltd 1957 (4) SA 234 (C) at 235 has been followed and applied on
numerous occasions; see, for example, Lubbe v Die Administrateur, Oranje­Vrystaat 1968 (1) SA 111 (O) at 113; Cape Tex Engineering Works (Pty) Ltd v SAB
Lines (Pty) Ltd 1968 (2) SA 528 (C) at 529; Burnkloof Caterers (Pty) Ltd v Horseshoe Caterers (Green Point) (Pty) Ltd 1976 (2) SA 930 (A) at 938; John Craig
(Pty) Ltd v Dupa Clothing Industries (Pty) Ltd 1977 (3) SA 144 (T) at 149; Tamarillo (Pty) Ltd v B N Aitken (Pty) Ltd 1982 (1) SA 398 (A) at 430–1; Associated
South African Bakeries (Pty) Ltd v Oryx & Vereinigte Bäkereien (Pty) Ltd 1982 (3) SA 893 (A) at 923–4; Plascon­Evans Paints Ltd v Van Riebeeck Paints (Pty)
Ltd 1984 (3) SA 623 (A) at 634; Kemp, Sacs & Nell Real Estate (Edms) Bpk v Soll 1986 (1) SA 673 (O) at 685; FW Knowles (Pty) Ltd v Cash­In (Pty) Ltd 1986 (4)
SA 641 (C) at 658; The Free Press of Namibia (Pty) Ltd v Cabinet for the Interim Government of South West Africa 1987 (1) SA 614 (SWA) at 622; Vena v
George Municipality 1987 (4) SA 29 (C) at 43; W v S (1) 1988 (1) SA 475 (N) at 479–80; Miele et Cie GmbH & Co v Euro Electrical (Pty) Ltd 1988 (2) SA 583
(A) at 595; Townsend Productions (Pty) Ltd v Leech 2001 (4) SA 33 (C) at 40E–H; Hudson v The Master 2002 (1) SA 862 (T) at 870A–C; Die Dros (Pty) Ltd v
Telefon Beverages CC 2003 (4) SA 207 (C) at 214A–E; Ripoll­Dausa v Middleton NO 2005 (3) SA 141 (C) at 151G–H; Wormald NO v Kambule 2006 (3) SA 562
(SCA) at 566H–I; Transnet Ltd v Nyawuza 2006 (5) SA 100 (D) at 107H–I; Lifeguards Africa (Pty) Ltd v Raubenheimer 2006 (5) SA 364 (D) at 379D; Mahala v
Nkombombini 2006 (5) SA 524 (SE) at 527I–528A; Yunnan Engineering CC v Chater 2006 (5) SA 571 (T) at 580D–J; Roeloffze NO v Bothma NO 2007 (2) SA 257
(C) at 264J–265A; De Villiers v Potgieter and Others NNO 2007 (2) SA 311 (SCA) at 317D–E; University of Pretoria v South Africans for the Abolition of
Vivisection 2007 (3) SA 395 (O) at 400A; Wightman t/a JW Construction v Headfour (Pty) Ltd 2008 (3) SA 371 (SCA) at 375D–F; Gounder v Top Spec
Investments (Pty) Ltd 2008 (5) SA 151 (SCA) at 154C–D; Chopper Worx (Pty) Ltd v WRC Consultation Services (Pty) Ltd 2008 (6) SA 497 (C) at 502A; Thint
(Pty) Ltd v National Director of Public Prosecutions; Zuma v National Director of Public Prosecutions 2009 (1) SA 1 (CC) at 19A; Malan v Law Society, Northern
Provinces 2009 (1) SA 216 (SCA) at 222A–B; National Director of Public Prosecutions v Zuma 2009 (2) SA 277 (SCA) at 290D–E; Berrange NO v Hassan 2009
(2) SA 339 (N) at 359B–D; Thebe ya Bophelo Healthcare v NBC for the Road Freight Industry 2009 (3) SA 187 (W) at 197G–198A; Nick’s Fishmonger Holdings
(Pty) Ltd v Fish Diner In Bryanston CC 2009 (5) SA 629 (W) at 652C–D; Pinzon Traders 8 (Pty) Ltd v Clublink (Pty) Ltd 2010 (1) SA 506 (ECG) at 510H; Microsure
(Pty) Ltd v Net 1 Applied Technologies South Africa Ltd 2010 (2) SA 59 (N) at 61F–G; Hassan v Berrange NO 2012 (6) SA 329 (SCA) at 343A–C; Minister of
Safety and Security v Jongwa 2013 (3) SA 455 (ECG) at 461F–H; Knipe v Kameelhoek (Pty) Ltd 2014 (1) SA 52 (FB) at 59E–60D; Cape Town City v South African
National Roads Agency Ltd 2015 (6) SA 535 (WCC) at 608C–D; Comair Ltd v Minister of Public Enterprises 2016 (1) SA 1 (GP) at 15H–I; Media 24 Books (Pty)
Ltd v Oxford University Press Southern Africa (Pty) Ltd 2017 (2) SA 1 (SCA) at 17I–18B; Mouton v Park 2000 Development 11 (Pty) Ltd 2019 (6) SA 105
(WCC) at 128D–E; Gelyke Kanse v Chairperson, Senate of the University of Stellenbosch 2020 (1) SA 368 (CC) at paragraph [16]; Global Environmental Trust v
Tendele Coal Mining (Pty) Ltd [2021] 2 All SA 1 (SCA) at paragraph [94]; South African Reserve Bank v Leathern NO 2021 (5) SA 543 (SCA) at paragraph [24]
footnote 12; Democratic Alliance (as Third Intervening Party): In re Electoral Commission of South Africa v Minister of Co­operative Governance and Traditional
Affairs (African National Congress and others as Intervening Parties and Council for the Advancement of the South African Constitution and others as amici
curiae) 2022 (1) BCLR 1 (CC) at paragraph [40] footnote [15]; Ayres v Minister of Justice and Correctional Services 2022 (5) BCLR 523 (CC) at paragraph [15]
footnote [12]; Minister of Social Development v SA Childcare (Pty) Ltd; MEC, Social Development, Eastern Cape v SA Childcare (Pty) Ltd (unreported, SCA case
no 71/2021 dated 29 August 2022) at paragraph [18]; Nyamukamadi Mukumela Denga (Mabirimisa) v Mabirimisa Tshililo Arnold NNO (unreported, SCA case no
1296/2021 dated 31 October 2022) at paragraph [16]; Modikwa Platinum Mine, an unincorporated joint venture between Rustenburg Platinum Mines Limited and
Arm Mining Consortium Limited v Nkwe Platinum Limited (unreported, SCA case no 1333/2021 date 6 February 2023) at paragraph [9]; African Congress for
Transformation v Electoral Commission of South Africa; Labour Party of South Africa v Electoral Commission of South Africa; Afrikan Alliance of Social Democrats
v Electoral
© 2018 Juta Commission
and Company of South Africa 2024 (8) BCLR 987 (CC) at paragraph [95].Downloaded : Fri Apr 25 2025 15:31:26 GMT+0200 (South Africa Standard Time)
(Pty) Ltd.
234 Plascon­Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A) at 635C; National Director of Public Prosecutions v Zuma 2009 (2) SA 277
(SCA) at paragraph [26]; South African Reserve Bank v Leathern NO 2021 (5) SA 543 (SCA) at paragraph [24] footnote 12; Mtolo v Lombard 2022 (9) BCLR
 curiae) 2022 (1) BCLR 1 (CC) at paragraph [40] footnote [15]; Ayres v Minister of Justice and Correctional Services 2022 (5) BCLR 523 (CC) at paragraph [15]
footnote [12]; Minister of Social Development v SA Childcare (Pty) Ltd; MEC, Social Development, Eastern Cape v SA Childcare (Pty) Ltd (unreported, SCA case
no 71/2021 dated 29 August 2022) at paragraph [18]; Nyamukamadi Mukumela Denga (Mabirimisa) v Mabirimisa Tshililo Arnold NNO (unreported, SCA case no
1296/2021 dated 31 October 2022) at paragraph [16]; Modikwa Platinum Mine, an unincorporated joint venture between Rustenburg Platinum Mines Limited and
Arm Mining Consortium Limited v Nkwe Platinum Limited (unreported, SCA case no 1333/2021 date 6 February 2023) at paragraph [9]; African Congress for
Transformation v Electoral Commission of South Africa; Labour Party of South Africa v Electoral Commission of South Africa; Afrikan Alliance of Social Democrats
v Electoral Commission of South Africa 2024 (8) BCLR 987 (CC) at paragraph [95].
234 Plascon­Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A) at 635C; National Director of Public Prosecutions v Zuma 2009 (2) SA 277
(SCA) at paragraph [26]; South African Reserve Bank v Leathern NO 2021 (5) SA 543 (SCA) at paragraph [24] footnote 12; Mtolo v Lombard 2022 (9) BCLR
1148 (CC) at paragraph [38]; Minister of Social Development v SA Childcare (Pty) Ltd; MEC, Social Development, Eastern Cape v SA Childcare (Pty) Ltd
(unreported, SCA case no 71/2021 dated 29 August 2022) at paragraph [19]; African National Congress v Ezulweni Investments (Pty) Ltd (unreported, SCA case
no 979/2022 dated 24 November 2023) at paragraph [20].
235 Buffalo Freight Systems (Pty) Ltd v Crestleigh Trading (Pty) Ltd 2011 (1) SA 8 (SCA) at 14E–H, referring to Da Mata v Otto NO 1972 (3) SA 858 (A) at 869D–E.
236 See, for example, Peterson v Cuthbert & Co Ltd 1945 AD 420 at 428–9; Room Hire Co (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd 1949 (3) SA 1155 (T) at
1163 and 1165; Soffiantini v Mould 1956 (4) SA 150 (E) at 154F; Engar v Omar Salem Essa Trust 1970 (1) SA 77 (N) at 83E; Van der Merwe v Meyer 1971 (3) SA
22 (A) at 26G; Von Steen v Von Steen 1984 (2) SA 203 (T) at 205B; Plascon­Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A) at 634–5;
Associated South African Bakeries (Pty) Ltd v Oryx & Vereinigte Bäckereien (Pty) Ltd 1982 (3) SA 893 (A) at 923G–924B; Soofie v Hajee Shah Goolam Mahomed
Trust 1985 (3) SA 322 (N) at 329; Steenkamp v Mienies 1987 (4) SA 186 (NC) at 191; Khumalo v Director­General of Co­operation and Development 1991 (1)
SA 158 (A) at 168A; Administrator, Transvaal v Theletsane 1991 (2) SA 192 (A) at 197A–D; Nampesca (SA) Products (Pty) Ltd v Zaderer 1999 (1) SA 886 (C) at
892H–893B; South African Veterinary Council v Szymanski 2003 (4) SA 42 (SCA) at 51A–C; Rail Commuters Action Group v Transnet Ltd t/a Metrorail 2005 (2)
SA 359 (CC) at 392C–G; Minister of Social Development v SA Childcare (Pty) Ltd; MEC, Social Development, Eastern Cape v SA Childcare (Pty) Ltd (unreported,
SCA case no 71/2021 dated 29 August 2022) at paragraphs [19]–[20]. See also South Peninsula Municipality v Evans 2001 (1) SA 271 (C) at 283B–E; Townsend
Productions (Pty) Ltd v Leech 2001 (4) SA 33 (C) at 40H; Terblanche NO v Damji 2003 (5) SA 489 (C) at 501I–502D; Ripoll­Dausa v Middleton NO 2005 (3) SA
141 (C) at 151I–152I; Rajah v Chairperson: North West Gambling Board [2006] 3 All SA 172 (T) at 190f–g; Berrange NO v Hassan 2009 (2) SA 339 (N) at 359D–
F; Bester NO v Pieters 2023 (1) SA 398 (WCC) at paragraph [35]; Skog NO v Agullus 2024 (1) SA 72 (SCA) at paragraph [24].
237 Moosa Bros & Sons (Pty) Ltd v Rajah 1975 (4) SA 87 (D) at 91A; Nkwentsha v Minister of Law and Order 1988 (3) SA 99 (A) at 117C; Ploughmann NO v
Pauw 2006 (6) SA 334 (C) at 340H–I; Madia v B.M.R (unreported, LP case no HCA33/2022 dated 26 May 2023 — a decision of the full bench) at paragraph [10];
Phalane N.O. v Department of Co­operative Governance, Human Settlements and Traditional Affairs of the Limpopo Provincial Governance (unreported, LP case
no 1971/2018 dated 21 September 2023) at paragraph [25], where the text to this footnote is referred to with approval.
238 Law Society, Northern Provinces v Mogami 2010 (1) SA 186 (SCA) at 195C.
239 De Reszke v Maras 2006 (1) SA 401 (C) at 412J–413H; Law Society, Northern Provinces v Mogami 2010 (1) SA 186 (SCA) at 195C–D; Nel v Ramwell t/a
Ramwell Attorneys (unreported, GJ case no 18171/2018 dated 1 March 2019) at paragraph [13].
240 Joh­Air (Pty) Ltd v Rudman 1980 (2) SA 420 (T) at 428–9; Santino Publishers CC v Waylite Marketing CC 2010 (2) SA 53 (GSJ) at 56F–57B.
241 Moosa Bros & Sons (Pty) Ltd v Rajah 1975 (4) SA 87 (D) at 91A and 93F; Khumalo v Director­General of Co­operation and Development 1991 (1) SA 158
(A) at 167G.
242 Moosa Bros & Sons (Pty) Ltd v Rajah 1975 (4) SA 87 (D) at 91A–C.
243 Dodo v Dodo 1990 (2) SA 77 (W) 91I. See also Carr v Uzent 1948 (4) SA 383 (W) at 390; Liss Shoe Co (Pty) Ltd v Moffett Building and Contracting (Pty)
Ltd 1952 (3) SA 484 (O) at 487H; Hymie Tucker Finance Co (Pty) Ltd v Alloyex (Pty) Ltd 1981 (4) SA 175 (N) at 179F–H; Minister of Land Affairs and Agriculture v
D&F Wevell Trust 2008 (2) SA 184 (SCA) at 205D–206B.
244 Room Hire Co (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd 1949 (3) SA 1155 (T) at 1163; Nkwentsha v Minister of Law and Order 1988 (3) SA 99 (A) at 117B–
F; Apleni v Minister of Law and Order 1989 (1) SA 195 (A) at 199C–E.
245 Seton Co v Silveroak Industries Ltd 2000 (2) SA 215 (T); and see Minister of Land Affairs and Agriculture v D&F Wevell Trust 2008 (2) SA 184 (SCA) at 206D–
207C where this case was distinguished.
246 AECI Ltd v Strand Municipality 1991 (4) SA 688 (C) at 698J–699A. In Freedom Under Law v Acting Chairperson: Judicial Service Commission 2011 (3) SA 549
(SCA) at 564F–H Streicher JA, in a different context, stated:
‘Courts frequently have to decide where the truth lies between two conflicting versions. They often do so where there is only the word of one witness against
another, and neither of the witnesses concedes the version of the other. Civil cases are decided on a balance of probabilities, but where there is a dispute of fact
it is rarely possible to do so without subjecting the parties to cross­examination, and without allowing them to test what are alleged to be probabilities in the other
party’s favour. A court may of course after cross­examination still be unable to decide where the truth lies. That possibility does not entitle a court to decide the
matter without allowing cross­examination . . .’
247 Room Hire Co (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd 1949 (3) SA 1155 (T) at 1164; Moosa Bros & Sons (Pty) Ltd v Rajah 1975 (4) SA 87 (D) at 90F–H;
Plascon­Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A) at 635A; Klep Valves (Pty) Ltd v Saunders Valve Co Ltd 1987 (2) SA 1 (A) at 24B–
C; Minister of Environmental Affairs and Tourism v Scenematic Fourteen (Pty) Ltd 2005 (6) SA 182 (SCA) at 202E–H. See also Freedom Under Law v Acting
Chairperson: Judicial Service Commission 2011 (3) SA 549 (SCA) at 564F–H referred to in the preceding footnote.
248 Minister of Land Affairs and Agriculture v D&F Wevell Trust 2008 (2) SA 184 (SCA), distinguishing (at 204E–207C) the following cases: Peterson v Cuthbert &
Co Ltd 1945 AD 420 at 428–9; Hopf v Pretoria City Council 1947 (2) SA 752 (T) at 767–8; Room Hire Co (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd 1949 (3) SA
1155 (T) at 1163–4, Carr v Uzent 1948 (4) SA 383 (W) at 390; Dodo v Dodo 1990 (2) SA 77 (W) at 91H–I; Seton Co v Silveroak Industries Ltd 2000 (2) SA 215
(T) at 231A–B.
249 Minister of Land Affairs and Agriculture v D&F Wevell Trust 2008 (2) SA 184 (SCA) at 205A–B.
250 Minister of Land Affairs and Agriculture v D&F Wevell Trust 2008 (2) SA 184 (SCA) at 205B–C; 4 Africa Exchange (Pty) Ltd v Financial Sector Conduct
Authority 2020 (6) SA 428 (GJ) at paragraph [10].
251 See also Red Coral Investments 117 (Pty) Ltd v Bayas Logistics (Pty) Ltd (unreported, KZD case no D6595/2018 dated 5 November 2020) at paragraph [21].
252 Moosa Bros & Sons (Pty) Ltd v Rajah 1975 (4) SA 87 (D) at 93D; Bloem v Minister of Law and Order 1987 (2) SA 436 (O) at 440A–F; Gumede v Minister of
Law and Order 1987 (3) SA 155 (D) at 160E; Khumalo v Director­General of Co­operation and Development 1991 (1) SA 158 (A) at 167G–J; Secfin Bank Ltd v
Mercantile Bank Ltd 1993 (2) SA 34 (W) at 37F; Ripoll­Dausa v Middleton NO 2005 (3) SA 141 (C); Minister of Environmental Affairs and Tourism v Scenematic
Fourteen (Pty) Ltd 2005 (6) SA 182 (SCA) at 202E–H.
253 Moosa Bros & Sons (Pty) Ltd v Rajah 1975 (4) SA 87 (D) at 91D. If a court finds that allegations made by a party in its affidavit are erroneous or false, the
court may order viva voce evidence to be presented by that party, and the witness to be cross­examined, even in the absence of a dispute of fact (Manuel v
Sahara Computers (Pty) Ltd 2020 (2) SA 269 (GP) at paragraphs [88], [97] and [100]).
254 1949 (3) SA 1155 (T) at 1163, approved and followed in African Congress for Transformation v Electoral Commission of South Africa; Labour Party of South
Africa v Electoral Commission of South Africa; Afrikan Alliance of Social Democrats v Electoral Commission of South Africa 2024 (8) BCLR 987 (CC) at paragraph
[94]. In Moosa Bros & Sons (Pty) Ltd v Rajah 1975 (4) SA 87 (D) at 90D it is stressed (i) that the Room Hire case does not purport to be an exhaustive
exposition on how disputes of fact may arise; and (ii) that in the case the only issue was whether the application should be dismissed with costs and the applicant
left to proceed by trial action if so minded. See also Khumalo v Director­General of Co­operation and Development 1991 (1) SA 158 (A) at 167G.
255 Lombaard v Droprop CC 2010 (5) SA 1 (SCA) at 10A–D; Red Coral Investments 117 (Pty) Ltd v Bayas Logistics (Pty) Ltd (unreported, KZD case no
D6595/2018 dated 5 November 2020) at paragraph [22]. As to the approach to be adopted in a defamatory claim brought on notice of motion to be referred to
trial, see, for example, Herbal Zone (Pty) Ltd v Infitech Technologies (Pty) Ltd [2017] 2 All SA 347 (SCA) at 361D–362A; ENX Group Limited v Spilkin
(unreported, ECGq case no 2296/2022 dated 8 November 2022) at paragraphs 31–42 and the authorities there referred to; Phalane N.O. v Department of Co­
operative Governance, Human Settlements and Traditional Affairs of the Limpopo Provincial Governance (unreported, LP case no 1971/2018 dated 21 September
2023) at paragraph [30]; True North Holdings (Pty) Limited v Sky Gecko Software Lab (Pty) Ltd (unreported, WCC case no 23149/23 dated 29 May 2024) at
paragraph [70].
256 Plascon­Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A) at 634I; True North Holdings (Pty) Limited v Sky Gecko Software Lab (Pty) Ltd
(unreported, WCC case no 23149/23 dated 29 May 2024) at paragraph [70]. Other terms used include ‘genuine’ (Peterson v Cuthbert & Co Ltd 1945 AD 420 at
429; Plascon­Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A) at 634I; Khumalo v Director­General of Co­operation and Development 1991
(1) SA 158 (A) at 168A; President of the Republic of South Africa v South African Rugby Football Union 2000 (1) SA 1 (CC) at paragraph [235]; Wightman t/a JW
Construction v Headfour (Pty) Ltd 2008 (3) SA 371 (SCA) at 375E; Lombaard v Droprop CC 2010 (5) SA 1 (SCA) at 10D; Cape Town City v South African National
Roads Agency Ltd 2015 (6) SA 535 (WCC) at 608C; MAN Financial Services SA (Pty) Ltd v Phaphoakane Transport 2017 (5) SA 526 (GJ) at 528G–529A; Mouton v
Park 2000 Development 11 (Pty) Ltd 2019 (6) SA 105 (WCC) at 128E; 4 Africa Exchange (Pty) Ltd v Financial Sector Conduct Authority 2020 (6) SA 428 (GJ) at
paragraph [9]); ‘genuine, and not merely illusory’ (Parker v W G B Kinsey & Co (Pvt) Ltd 1988 (1) SA 42 (ZS) at 51E); ‘werklike of direkte’ (Van der Merwe v
Meyer 1971 (3) SA 22 (A) at 26G); ‘bona fide’ (Von Steen v Von Steen 1984 (2) SA 203 (T) at 205B; Plascon­Evans Paints Ltd v Van Riebeeck Paints (Pty)
Ltd 1984 (3) SA 623 (A) at 634I; Wightman t/a JW Construction v Headfour (Pty) Ltd 2008 (3) SA 371 (SCA) at 375E; Fakie NO v CCII Systems (Pty) Ltd 2006 (4)
SA 326 (SCA) at 347E–I; Hassan v Berrange NO 2012 (6) SA 329 (SCA) at 343A–C; Cape Town City v South African National Roads Agency Ltd 2015 (6) SA 535
(WCC) at 608C; MAN Financial Services SA (Pty) Ltd v Phaphoakane Transport 2017 (5) SA 526 (GJ) at 528G–529A; Mouton v Park 2000 Development 11 (Pty)
Ltd 2019 (6) SA 105 (WCC) at 128E; ENX Group Limited v Spilkin (unreported, ECGq case no 2296/2022 dated 8 November 2022) at paragraphs 20 and 23). See
also Nampesca (SA) Products (Pty) Ltd v Zaderer 1999 (1) SA 886 (C) at 892H–893B; Dorbyl Vehicle Trading & Finance Co (Pty) Ltd v Northern Cape Tour &
Charter Service CC [2001] 1 All SA 112 (NC) at 123b–124c; South Peninsula Municipality v Evans 2001 (1) SA 271 (C) at 283F–G; First Rand Bank of Southern
Africa Ltd v Pretorius 2002 (3) SA 489 (C) at 497D–E; Rajah v Chairperson: North West Gambling Board [2006] 3 All SA 172 (T) at 190h–i; Red Coral
Investments 117 (Pty) Ltd v Bayas Logistics (Pty) Ltd (unreported, KZD case no D6595/2018 dated 5 November 2020) at paragraph [21]; Centaur Mining South
Africa (Pty) Ltd v Cloete Murray NO 2023 (1) SA 499 (GJ) at paragraph [15].
257 Peterson v Cuthbert & Co Ltd 1945 AD 420 at 428. See also Von Steen v Von Steen 1984 (2) SA 203 (T) at 205C; Standard Credit Corporation Ltd v
Smyth 1991 (3) SA 179 (W) at 181H; Fakie NO v CCII Systems (Pty) Ltd 2006 (4) SA 326 (SCA) at 347G–H; National Director of Public Prosecutions v Zuma 2009
(2) SA 277 (SCA) at 290F; Wishart v Blieden NO 2013 (6) SA 59 (KZP) at 84G–85E; True North Holdings (Pty) Limited v Sky Gecko Software Lab (Pty) Ltd
(unreported, WCC case no 23149/23 dated 29 May 2024) at paragraph [70]. A court is not required to deal with a challenge to a referee’s report delivered
under s 38 of the Superior Courts Act 10 of 2013 in the way that it would decide factual disputes in motion proceedings (Wright v Wright 2015 (1) SA 262
(SCA) at 268C).
258 National Scrap Metal (Cape Town) (Pty) Ltd v Murray & Roberts Ltd 2012 (5) SA 300 (SCA) at 307F. In this case it was held (at 308A–F) that if the dispute
involved the conduct of businessmen, it was also necessary to guard against approaching the case on the assumption that businessmen would act in a
businesslike manner or with meticulous concern for the keeping of accurate records; all too often they did not. This was all the more so if there had been not
© 2018 Juta
onlyand Company
a close (Pty) Ltd. relationship between the parties, but one party in addition
and symbiotic Downloaded : Fri Apron
had representation 25the
2025 15:31:26
other party’sGMT+0200 (South Africa
board of directors Standard Time)
and was
therefore a party to its business plans and strategies. The closeness of the relationship between the opposing parties might readily explain why the respective
 (unreported, WCC case no 23149/23 dated 29 May 2024) at paragraph [70]. A court is not required to deal with a challenge to a referee’s report delivered
under s 38 of the Superior Courts Act 10 of 2013 in the way that it would decide factual disputes in motion proceedings (Wright v Wright 2015 (1) SA 262
(SCA) at 268C).
258 National Scrap Metal (Cape Town) (Pty) Ltd v Murray & Roberts Ltd 2012 (5) SA 300 (SCA) at 307F. In this case it was held (at 308A–F) that if the dispute
involved the conduct of businessmen, it was also necessary to guard against approaching the case on the assumption that businessmen would act in a
businesslike manner or with meticulous concern for the keeping of accurate records; all too often they did not. This was all the more so if there had been not
only a close and symbiotic relationship between the parties, but one party in addition had representation on the other party’s board of directors and was
therefore a party to its business plans and strategies. The closeness of the relationship between the opposing parties might readily explain why the respective
parties had not conducted their business relationship with greater formality. See also Cape Town City v South African National Roads Agency Ltd 2015 (6) SA 535
(WCC) at 608D–E; True North Holdings (Pty) Limited v Sky Gecko Software Lab (Pty) Ltd (unreported, WCC case no 23149/23 dated 29 May 2024) at paragraph
[70].
259 King William’s Town Transitional Local Council v Border Alliance Taxi Association (BATA) 2002 (4) SA 152 (E) at 156I–J; True North Holdings (Pty) Limited v
Sky Gecko Software Lab (Pty) Ltd (unreported, WCC case no 23149/23 dated 29 May 2024) at paragraph [70].
260 King William’s Town Transitional Local Council v Border Alliance Taxi Association (BATA) 2002 (4) SA 152 (E) at 157A–B; Wightman t/a JW Construction v
Headfour (Pty) Ltd 2008 (3) SA 371 (SCA) at 375F–G; National Scrap Metal (Cape Town) (Pty) Ltd v Murray & Roberts Ltd 2012 (5) SA 300 (SCA) at 305D–E.
261 Prinsloo NO v Goldex 15 (Pty) Ltd 2014 (5) SA 297 (SCA) at 304A–C. See also N v N (unreported, ECMk case no 2283/2021 dated 17 May 2022) at paragraph
[31] and the authorities there referred to.
262 Peterson v Cuthbert & Co Ltd 1945 AD 420 at 428–9; Room Hire Co (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd 1949 (3) SA 1155 (T) at 1163 and 1165;
Soffiantini v Mould 1956 (4) SA 150 (E) at 154F; Engar v Omar Salem Essa Trust 1970 (1) SA 77 (N) at 83E; Associated South African Bakeries (Pty) Ltd v Oryx
Vereinigte Bäckereien (Pty) Ltd 1982 (3) SA 893 (A) at 923G–924B; Plascon­Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A) at 634I–635A;
Ngqumba/Damons NO/Jooste v Staatspresident 1988 (4) SA 224 (A) at 261G–262B; Ndara v Umtata Presbytery, Nederduitse Gereformeerde Kerk in Afrika
(Transkei) 1990 (4) SA 22 (Tk) at 28E; Minister of Health v Drums and Pails Reconditioning CC 1997 (3) SA 867 (N) at 873A–G; Dorbyl Vehicle Trading & Finance
Co (Pty) Ltd v Northern Cape Tour & Charter Service CC [2001] 1 All SA 112 (NC); King William’s Town Transitional Local Council v Border Alliance Taxi
Association (BATA) 2002 (4) SA 152 (E) at 156I–J; South African Veterinary Council v Szymanski 2003 (4) SA 42 (SCA) at 51A–C; Terblanche NO v Damji 2003
(5) SA 489 (C) at 501I–502D; Rajah v Chairperson: North West Gambling Board [2006] 3 All SA 172 (T) at 190g–h; Fakie NO v CCII Systems (Pty) Ltd 2006 (4)
SA 326 (SCA) at 347G–H; Tecmed (Pty) Ltd v Hunter 2008 (6) SA 210 (W) at 217D–H; Malan v Law Society, Northern Provinces 2009 (1) SA 216 (SCA) at 222C;
National Director of Public Prosecutions v Zuma 2009 (2) SA 277 (SCA) at 290F; Feni v Gxothiwe 2014 (1) SA 594 (ECG) at 596G; Minister of Environmental
Affairs v Recycling and Economic Development Initiative of South Africa NPC 2018 (3) SA 604 (WCC) at 632F; Red Coral Investments 117 (Pty) Ltd v Bayas
Logistics (Pty) Ltd (unreported, KZD case no D6595/2018 dated 5 November 2020) at paragraph [22]; ENX Group Limited v Spilkin (unreported, ECGq case no
2296/2022 dated 8 November 2022) at paragraph 22; True North Holdings (Pty) Limited v Sky Gecko Software Lab (Pty) Ltd (unreported, WCC case no 23149/23
dated 29 May 2024) at paragraph [70]. In Wightman t/a JW Construction v Headfour (Pty) Ltd 2008 (3) SA 371 (SCA) at 375F–376B it is stated:
‘A real, genuine and bona fide dispute of fact can exist only where the court is satisfied that the party who purports to raise the dispute has in his affidavit
seriously and unambiguously addressed the fact said to be disputed. There will of course be instances where a bare denial meets the requirement because there
is no other way open to the disputing party and nothing more can therefore be expected of him. But even that may not be sufficient if the fact averred lies purely
within the knowledge of the averring party and no basis is laid for disputing the veracity or accuracy of the averment. When the facts averred are such that the
disputing party must necessarily possess knowledge of them and be able to provide an answer (or countervailing evidence) if they be not true or accurate but,
instead of doing so, rests his case on a bare or ambiguous denial the court will generally have difficulty in finding that the test is satisfied. I say “generally”
because factual averments seldom stand apart from a broader matrix of circumstances all of which needs to be borne in mind when arriving at a decision. A
litigant may not necessarily recognise or understand the nuances of a bare or general denial as against a real attempt to grapple with all relevant factual
allegations made by the other party. But when he signs the answering affidavit, he commits himself to its contents, inadequate as they may be, and will only in
exceptional circumstances be permitted to disavow them. There is thus a serious duty imposed upon a legal adviser who settles an answering affidavit to
ascertain and engage with facts which his client disputes and to reflect such disputes fully and accurately in the answering affidavit. If that does not happen it
should come as no surprise that the court takes a robust view of the matter.’
The approach in Wightman was approved and followed in African Congress for Transformation v Electoral Commission of South Africa; Labour Party of South
Africa v Electoral Commission of South Africa; Afrikan Alliance of Social Democrats v Electoral Commission of South Africa 2024 (8) BCLR 987 (CC) at paragraph
[93]. See also Malan v Law Society, Northern Provinces 2009 (1) SA 216 (SCA) at 222C; National Scrap Metal (Cape Town) (Pty) Ltd v Murray & Roberts
Ltd 2012 (5) SA 300 (SCA) at 305D; Cape Town City v South African National Roads Agency Ltd 2015 (6) SA 535 (WCC) at 609A–H; Smith v Stellenbosch
Municipality (unreported, WCC case no 18381/2022 dated 11 July 2022) at paragraph [82]; Minister of Social Development v SA Childcare (Pty) Ltd; MEC, Social
Development, Eastern Cape v SA Childcare (Pty) Ltd (unreported, SCA case no 71/2021 dated 29 August 2022) at paragraph [20]; Centaur Mining South Africa
(Pty) Ltd v Cloete Murray NO 2023 (1) SA 499 (GJ) at paragraph [15]; Mashisane v Mhlauli (unreported, SCA case no 903/2022 dated 14 December 2023) at
paragraph [15] (an appeal in which the Supreme Court of Appeal held (at paragraph [13]) that courts should be slow to decide disputes concerning the
conclusion of customary marriages on affidavits alone). In Masango v Sunset Bay Trading 156 (Pty) Ltd (unreported, GJ case no 17272/20 dated 1 October 2020)
it was held (at paragraph [31]) that, should a respondent possess no more facts to counter an allegation save to deny same, it cannot be expected of the
respondent to say more. For instance, if a respondent is accused of demolishing a structure but knows nothing about it, it cannot be expected of such a
respondent to place further facts before the court, save to deny the allegation. It was accordingly found (at paragraph [32]) that the bare denial of the
respondents created a real factual dispute which was then decided on the basis of the Plascon Evans principle due to the urgency of the matter.
263 Soffiantini v Mould 1956 (4) SA 150 (E) at 154G–H. See also Reed v Witrup 1962 (4) SA 437 (D) at 443G; West​ern Bank Bpk v Trust Bank van Afrika
Bpk 1977 (2) SA 1008 (O) at 1017E–H; Gemeenskapontwikkelingsraad v Williams (2) 1977 (3) SA 955 (W) at 962F–G; Jonker v Ackerman 1979 (3) SA 575
(O) at 599D–E; Wiese v Joubert 1983 (4) SA 182 (O) at 202F; The Free Press of Namibia (Pty) Ltd v Cabinet for the Interim Government of South West
Africa 1987 (1) SA 614 (SWA) at 621C–E; Rössing Stone Crushers (Pty) Ltd v Commercial Bank of Namibia 1994 (2) SA 622 (NmHC) at 627H–628A; Minister of
Health v Drums and Pails Reconditioning CC 1997 (3) SA 867 (N) at 872C–J; Truth Verification Testing Centre v PSE Truth Detection CC 1998 (2) SA 689 (W) at
698H–I; Rosen v Ekon 2001 (1) SA 199 (W) at 215B–D; Tecmed (Pty) Ltd v Hunter 2008 (6) SA 210 (W) at 217I–218B; Minister of Environmental Affairs v
Recycling and Economic Development Initiative of South Africa NPC 2018 (3) SA 604 (WCC) at 632F–G; Mouton v Park 2000 Development 11 (Pty) Ltd 2019 (6)
SA 105 (WCC) at 128F; Red Coral Investments 117 (Pty) Ltd v Bayas Logistics (Pty) Ltd (unreported, KZD case no D6595/2018 dated 5 November 2020) at
paragraph [22]; Canton Trading 17 (Pty) Ltd t/a Cube Architects v Hattingh NO 2022 (4) SA 420 (SCA) at paragraph [78]; Bester NO v Pieters 2023 (1) SA 398
(WCC) at paragraph [35]; True North Holdings (Pty) Limited v Sky Gecko Software Lab (Pty) Ltd (unreported, WCC case no 23149/23 dated 29 May 2024) at
paragraph [70].
264 Sewmungal and Another NNO v Regent Cinema 1977 (1) SA 814 (N) at 820F. See also Metallurgical and Commercial Consultants (Pty) Ltd v Metal Sales Co
(Pty) Ltd 1971 (2) SA 388 (W) at 390B–G; Carrara & Lecuona (Pty) Ltd v Van der Heever Investments Ltd 1973 (3) SA 716 (T) at 719G; Wiese v Joubert 1983
(4) SA 182 (O) at 202F–203C; Administrator, Transvaal v Theletsane 1991 (2) SA 192 (A) at 196I–197A; Grobbelaar v Freund 1993 (4) SA 124 (O) at 127A–D
and 129D–G; Minister of Environmental Affairs v Recycling and Economic Development Initiative of South Africa NPC 2018 (3) SA 604 (WCC) at 632G; True North
Holdings (Pty) Limited v Sky Gecko Software Lab (Pty) Ltd (unreported, WCC case no 23149/23 dated 29 May 2024) at paragraph [70].
265 In Cape Town City v South African National Roads Agency Ltd 2015 (6) SA 535 (WCC) Binns­Ward J and Boqwana J observed (at 608F–I):
‘In South African Veterinary Council and Another v Szymanski 2003 (4) SA 42 (SCA) (2003 (4) BCLR 378) para 24 it was suggested in passing that “denials that
are ‘so far­fetched or clearly untenable that the Court is justified in rejecting them merely on the papers’ constitute a separate category of ‘uncreditworthy
denials’ from those which do not raise ‘a real, genuine or bona fide dispute of fact’.” With respect, we doubt whether there is in fact a basis for such a distinction:
a denial that is so far­fetched or clearly untenable as to be rejected on the papers cannot provide the evidential basis for a genuine dispute of fact. We read the
distinction drawn by Corbett JA in Plascon­Evans supra at 634I–635C as having been made on a different basis, viz as between the effect of the failure by the
respondent who makes a bald denial to an inherently credible allegation by the applicant and fails to apply to cross­examine the applicant, as being insufficient,
within the ambit of the general rule, to raise a genuine dispute of fact and, by way of an exception to the general rule, the rejection of the respondent’s evidence
where its allegations or denials of the respondent are so far­fetched or clearly untenable that the court is justified in rejecting them merely on the papers. In
both of the posited situations, whether within the general rule, or by way of an exception to it, the effect will be the same — the respondent’s averments will not
be sufficient to bar the applicant from obtaining final relief on the papers. In the current matter the City needed to persuade us to disregard Sanral’s denial in
terms of the exception to the Plascon­Evans rule.’
In Media 24 Books (Pty) Ltd v Oxford University Press Southern Africa (Pty) Ltd 2017 (2) SA 1 (SCA) Wallis JA observed (at 18A–B) that a finding to the effect
that facts deposed to by a respondent constituted bald or uncreditworthy denials or were palpably implausible, far­fetched or so clearly untenable that they could
safely be rejected on the papers ‘occurs infrequently because courts are always alive to the potential for evidence and cross­examination to alter its view of the
facts and the plausibility of evidence’.
See also Nel v Ramwell t/a Ramwell Attorneys (unreported, GJ case no 18171/2018 dated 1 March 2019) at paragraphs [11]–[12]; Mouton v Park 2000
Development 11 (Pty) Ltd 2019 (6) SA 105 (WCC) at 128F; Mthembu v Mpungose (unreported, KZP case no 16011/2022P dated 28 March 2024) at paragraph
[30].
266 Administrator, Transvaal v Theletsane 1991 (2) SA 192 (A) at 197A–B. See also Mahomed v Malik 1930 TPD 615 at 619; Hilleke v Levy 1946 AD 214 at 219;
Room Hire Co (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd 1949 (3) SA 1155 (T) at 1162; Da Mata v Otto NO 1972 (3) SA 858 (A) at 882F; Sewmungal and
Another NNO v Regent Cinema 1977 (1) SA 814 (N) at 819D–820F; Trust Bank van Afrika Bpk v Western Bank Bpk 1978 (4) SA 281 (A) at 294D; Elco Steel
Dealers v Blackwood Hodge (South Africa) (Pty) Ltd 1979 (3) SA 1312 (T) at 1318G; Wiese v Joubert 1983 (4) SA 182 (O) at 201D–202D; Ramakulukusha v
Kruger 1984 (1) SA 218 (V) at 221H; National Union of Textile Workers v Ndlovu 1987 (3) SA 149 (D) at 152G; Nampesca (SA) Products (Pty) Ltd v
Zaderer 1999 (1) SA 886 (C) at 892H–893B; Rail Commuters Action Group v Transnet Ltd t/a Metrorail 2005 (2) SA 359 (CC) at 392C–G; Fakie NO v CCII
Systems (Pty) Ltd 2006 (4) SA 326 (SCA) at 347H–348A; University of Pretoria v South Africans for the Abolition of Vivisection 2007 (3) SA 395 (O) at 400E–F;
Wightman t/a JW Construction v Headfour (Pty) Ltd 2008 (3) SA 371 (SCA) at 375E; Malan v Law Society, Northern Provinces 2009 (1) SA 216 (SCA) at 222B;
National Director of Public Prosecutions v Zuma 2009 (2) SA 277 (SCA) at 290F; Berrange NO v Hassan 2009 (2) SA 339 (N) at 359F–G; Point 2 Point Same Day
Express CC v Stewart 2009 (2) SA 414 (W) at 420F; Els v Weideman 2011 (2) SA 126 (SCA) at 138F–H; Oakdene Square Properties (Pty) Ltd v Farm
Bothasfontein (Kyalami) (Pty) Ltd 2012 (3) SA 273 (GSJ) at 275A–C; South Coast Furnishers CC v Secprop 30 Investments (Pty) Ltd 2012 (3) SA 431 (KZP) at
439D–G; National Scrap Metal (Cape Town) (Pty) Ltd v Murray & Roberts Ltd 2012 (5) SA 300 (SCA) at 307D–E; Wishart v Blieden NO 2013 (6) SA 59 (KZP) at
84G–85E; Afzal v Kalim 2013 (6) SA 176 (ECP) at 180D–181F; SH v GF 2013 (6) SA 621 (SCA) at 626G–H; Cape Town City v South African National Roads
Agency Ltd 2015 (6) SA 535 (WCC) at 608D–609A; Hartog v Daly [2023] 2 All SA 156 (GJ) (a decision of the full court) at paragraphs [49]–[73]. In Smith v
Stellenbosch Municipality (unreported, WCC case no 18381/2022 dated 11 July 2022) it is reiterated, with reference to National Scrap Metal (Cape Town) (Pty) Ltd
v Murray & Roberts Ltd 2012 (5) SA 300 (SCA) at paragraphs [21]–[22] and Mathewson v Van Niekerk (unreported, SCA case no 260/11 dated 16 March 2012)
at paragraph [7], that the test for rejecting a respondent’s evidence on the papers, without the benefit of oral evidence, is ‘a stringent one not easily satisfied’ (at
paragraph [82]).
267 Administrator, Transvaal v Theletsane 1991 (2) SA 192 (A) at 197C. See also Tamarillo (Pty) Ltd v B N Aitken (Pty) Ltd 1982 (1) SA 398 (A) at 430H–431A;
Plascon­Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A) at 634H–635C; Ngqumba/Damons NO/Jooste v Staatspresident 1988 (4) SA 224
© 2018 Juta
(A)and Company (Pty)
at 261B–263A; Ltd. Stone Crushers (Pty) Ltd v Commercial Bank of NamibiaDownloaded
Rössing : Fri (NmHC)
1994 (2) SA 622 Apr 25 2025 15:31:26 GMT+0200
at 626H–627D; (SouthMining
Ocean Diamond AfricaSouthern
Standard Time)
Africa v Louw [2001] 1 All SA 241 (C); Ripoll­Dausa v Middleton NO 2005 (3) SA 141 (C) at 151G–154F; Rail Commuters Action Group v Transnet Ltd t/a
Metrorail 2005 (2) SA 359 (CC) at 392C–G; Yunnan Engineering CC v Chater 2006 (5) SA 571 (T) at 580E–J; National Director of Public Prosecutions v
 Stellenbosch Municipality (unreported, WCC case no 18381/2022 dated 11 July 2022) it is reiterated, with reference to National Scrap Metal (Cape Town) (Pty) Ltd
v Murray & Roberts Ltd 2012 (5) SA 300 (SCA) at paragraphs [21]–[22] and Mathewson v Van Niekerk (unreported, SCA case no 260/11 dated 16 March 2012)
at paragraph [7], that the test for rejecting a respondent’s evidence on the papers, without the benefit of oral evidence, is ‘a stringent one not easily satisfied’ (at
paragraph [82]).
267 Administrator, Transvaal v Theletsane 1991 (2) SA 192 (A) at 197C. See also Tamarillo (Pty) Ltd v B N Aitken (Pty) Ltd 1982 (1) SA 398 (A) at 430H–431A;
Plascon­Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A) at 634H–635C; Ngqumba/Damons NO/Jooste v Staatspresident 1988 (4) SA 224
(A) at 261B–263A; Rössing Stone Crushers (Pty) Ltd v Commercial Bank of Namibia 1994 (2) SA 622 (NmHC) at 626H–627D; Ocean Diamond Mining Southern
Africa v Louw [2001] 1 All SA 241 (C); Ripoll­Dausa v Middleton NO 2005 (3) SA 141 (C) at 151G–154F; Rail Commuters Action Group v Transnet Ltd t/a
Metrorail 2005 (2) SA 359 (CC) at 392C–G; Yunnan Engineering CC v Chater 2006 (5) SA 571 (T) at 580E–J; National Director of Public Prosecutions v
Zuma 2009 (2) SA 277 (SCA) at 290D–F; Airports Company South Africa Ltd v Airport Bookshops (Pty) Ltd t/a Exclusive Books 2017 (3) SA 128 (SCA) at 131E–
F.; Gelyke Kanse v Chairperson, Senate of the University of Stellenbosch 2020 (1) SA 368 (CC) at paragraph [16].
268 2022 (1) BCLR 1 (CC).
269 At paragraph [40] footnote [15]. See also Ayres v Minister of Justice and Correctional Services 2022 (5) BCLR 523 (CC) at paragraph [15] footnote [12].
270 Buffalo Freight Systems (Pty) Ltd v Crestleigh Trading (Pty) Ltd 2011 (1) SA 8 (SCA) at 14D–F; and see Naturally Australian Meat and Game (Pty) Ltd v JH
Meat CC (unreported, GP case no 57166/20 dated 17 June 2022).
271 Buffalo Freight Systems (Pty) Ltd v Crestleigh Trading (Pty) Ltd 2011 (1) SA 8 (SCA) at 14E–H, referring to Da Mata v Otto NO 1972 (3) SA 858 (A) at 869D–E.
272 Room Hire Co (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd 1949 (3) SA 1155 (T) at 1162 and 1168; Adbro Investment Co Ltd v Minister of the Interior 1956 (3)
SA 345 (A) at 350A; Hattingh v Ngake 1966 (1) SA 64 (O) at 66D; Carrara & Lecuona (Pty) Ltd v Van der Heever Investments Ltd 1973 (3) SA 716 (T) at 720C;
Campbell v First Consolidated Holdings (Pty) Ltd 1977 (3) SA 924 (W) at 932B; Elco Steel Dealers v Blackwood Hodge (South Africa) (Pty) Ltd 1979 (3) SA 1312
(T) at 1319F; Standard Bank of SA Ltd v Neugarten 1987 (3) SA 695 (W) at 699A; H R Holfeld (Africa) Ltd v Karl Walter & Co GmbH (1) 1987 (4) SA 850 (W) at
860B; Cullen v Haupt 1988 (4) SA 39 (C) at 40E–41B; Willowvale Estates CC v Bryanmore Estates Ltd 1990 (3) SA 954 (W) at 961H–J; Seloadi v Sun
International (Bophuthatswana) Ltd 1993 (2) SA 174 (BGD) at 191C–192C. See also Tamarillo (Pty) Ltd v B N Aitken (Pty) Ltd 1982 (1) SA 398 (A) at 430G–
431A; Gounder v Top Spec Investments (Pty) Ltd 2008 (5) SA 151 (SCA) at 154B–C.
273 Deputy Minister of Tribal Authorities v Kekana 1983 (3) SA 492 (B) at 497E–G; AECI Ltd v Strand Municipality 1991 (4) SA 688 (C) at 698I; Chief Motlegi v
President of Bophuthatswana 1992 (2) SA 480 (B) at 488D.
274 Transnet Ltd t/a Metrorail v Rail Commuters Action Group 2003 (6) SA 349 (A) at 368C–D and 368G–H.
275 Van Aswegen v Drotskie 1964 (2) SA 391 (O) at 395C–D. See also Nel v Abrams & Sloot 1911 TPD 24; Pithey v McQuirk 1923 WLD 41; Ngqumba/Damons
NO/Jooste v Staatspresident 1988 (4) SA 224 (A) at 262E–263A; Pressma Services (Pty) Ltd v Schuttler 1990 (2) SA 411 (C) at 419D–H; Naturally Australian
Meat and Game (Pty) Ltd v JH Meat CC (unreported, GP case no 57166/20 dated 17 June 2022).
276 Lombaard v Droprop CC 2010 (5) SA 1 (SCA) at paragraph [26] footnote 7; Mamadi v Premier of Limpopo Province 2024 (1) SA 1 (CC) at paragraph [22].
277 Room Hire Co (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd 1949 (3) SA 1155 (T) at 1162 and 1168; Conradie v Kleingeld 1950 (2) SA 594 (O) at 597; Adbro
Investment Co Ltd v Minister of the Interior 1956 (3) SA 345 (A) at 350A; Standard Bank of SA Ltd v Neugarten 1987 (3) SA 695 (W) at 699A–E; Seloadi v Sun
International (Bophuthatswana) Ltd 1993 (2) SA 174 (BGD) at 191D.
278 In Repas v Repas (unreported, WCC case no A151/2022 dated 13 February 2023) the majority of the full court refrained from making any conclusive
determination one way or the other as to whether the discretion exercised by the court under rule 6(5)(g) is a ‘loose’ or ‘true’ one (at paragraphs [38]–[43]) but
did, however express the view that it would seem as if the decision that a court had to make under rule 6(5)(g) involved a determination made in the light of all
relevant considerations. Hence, if the dispute of fact were not reasonably foreseeable and the issue in dispute could be conveniently determined on a reference
to oral evidence, dismissing the application on the papers instead of referring the dispute for the hearing of oral evidence would not be an available choice (at
paragraphs [41]–[42]).
279 Cresto Machines (Edms) Bpk v Die Afdeling Speuroffisier SA Polisie, Noord­Transvaal 1970 (4) SA 350 (T) at 365D; Wiese v Joubert 1983 (4) SA 182 (O) at
202D. See also Visser v Vorster 1986 (2) SA 598 (NC) at 608B.
280 Room Hire Co (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd 1949 (3) SA 1155 (T) at 1162; Standard Bank of SA Ltd v Neugarten 1987 (3) SA 695 (W) at 699D;
Red Coral Investments 117 (Pty) Ltd v Bayas Logistics (Pty) Ltd (unreported, KZD case no D6595/2018 dated 5 November 2020) at paragraph [24]; Le Mottee
NO v Mkhwanazi (unreported, GP case nos A306/2021; A307/2021 dated 8 December 2022 — a decision of the full court) at paragraph [22].
281 See the notes s v ‘Or make such an order as it deems fit’ above.
282 Standard Bank of SA Ltd v Neugarten 1987 (3) SA 695 (W) at 699C.
283 Khaile v Administration Board, Western Cape 1983 (1) SA 473 (C) at 478H.
284 Lombaard v Droprop CC 2010 (5) SA 1 (SCA) at 10D–E and the cases there referred to.
285 Kalil v Decotex (Pty) Ltd 1988 (1) SA 943 (A) at 979H; Bocimar NV v Kotor Overseas Shipping Ltd 1994 (2) SA 563 (A) at 587D–G. See also Wishart v Blieden
NO 2013 (6) SA 59 (KZP) at 85E; Knipe v 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.
286 Jenkins v SA Boilermakers, Iron & Steel Workers & Ship Builders Society 1946 WLD 15 at 17–18; Gamlan Investments (Pty) Ltd v Trilion Cape (Pty) Ltd 1996
(3) SA 692 (C) at 700G–701G.
287 Standard Bank of SA Ltd v Neugarten 1987 (3) SA 695 (W) at 699F; and see the orders made in this case (at 708G–709E) and in Metallurgical and Commercial
Consultants (Pty) Ltd v Metal Sales Co (Pty) Ltd 1971 (2) SA 388 (W) at 396G–397B; Mbilase v Dimbaza Foundries (Pty) Ltd 1990 (1) SA 812 (Ck) at 815H–816D
and Kambule v The Master 2007 (3) SA 403 (E) at 414G–415E. See also Atlas Organic Fertilisers (Pty) Ltd v Pikkewyn Ghwano (Pty) Ltd 1978 (4) SA 696 (T) at
698G; Combrink v Rautenbach 1951 (4) SA 357 (T) at 359F–H. In Chief Pilane v Chief Linchwe 1995 (4) SA 686 (BPD) the matter was referred to oral evidence
and it was agreed to by counsel that they would submit a memorandum to the presiding judge within a reasonable time, dealing with the issues that they
consider should be dealt with, and that the judge would then give a directive as to precisely what issues should be canvassed at the hearing of oral evidence (at
697E).
288 Standard Bank of SA Ltd v Neugarten 1987 (3) SA 695 (W) at 699F.
289 Wepener v Norton 1949 (1) SA 657 (W) at 659; Drummond v Drummond 1979 (1) SA 161 (A) at 170H; Antonsson v Jackson 2020 (3) SA 113 (WCC) at
paragraph [76]; 4 Africa Exchange (Pty) Ltd v Financial Sector Conduct Authority 2020 (6) SA 428 (GJ) at paragraph [9].
290 Drummond v Drummond 1979 (1) SA 161 (A) at 170H.
291 See Di Meo v Capri Restaurant 1961 (4) SA 614 (N) at 615H–616A; De Beers Industrial Diamond Division (Pty) Ltd v Ishzuka 1980 (2) SA 191 (T) at 204C–
206D; Spie Batignolles Société Anonyme v Van Niekerk: In re Van Niekerk v SA Yster en Staal Industriële Korporasie Bpk 1980 (2) SA 441 (NC) at 448E–G;
Erasmus v Pentamed Investments (Pty) Ltd 1982 (1) SA 178 (W) at 180H; IClear Payments (Pty) Ltd v Honeywell (unreported, KZD case no D7512/2021 dated
13 February 2023) at paragraphs [17]–[18].
292 Hymie Tucker Finance Co (Pty) Ltd v Alloyex (Pty) Ltd 1981 (4) SA 175 (N) at 179B–E; Klep Valves (Pty) Ltd v Saunders Valve Co Ltd 1987 (2) SA 1 (A) at
24I–25D; Kalil v Decotex (Pty) Ltd 1988 (1) SA 943 (A) at 981D–G; Marques v Trust Bank of Africa Ltd 1988 (2) SA 526 (W) at 530J–531F; Fax Directories (Pty)
Ltd v SA Fax Listings CC 1990 (2) SA 164 (D) at 167C–G; Administrator, Transvaal v Theletsane 1991 (2) SA 192 (A) at 200B–E; Abaany Property Investments
Ltd v Fatima Ayob & Sons Ltd 1994 (2) SA 342 (T) at 345G–346E.
293 Mthembu v Mpungose (unreported, KZP case no 16011/2022P dated 28 March 2024) at paragraph [31].
294 Lekup Prop Co No 4 (Pty) Ltd v Wright 2012 (5) SA 246 (SCA) at 258H–I; Antonsson v Jackson 2020 (3) SA 113 (WCC) at paragraph [77]; Murray NO v
Humansdorp Co­Operative 2023 (3) SA 66 (SCA) at paragraphs [21]–[22].
295 Murray NO v Humansdorp Co­Operative 2023 (3) SA 66 (SCA) at paragraphs [21]–[22].
296 Lekup Prop Co No 4 (Pty) Ltd v Wright 2012 (5) SA 246 (SCA) at 258H; Antonsson v Jackson 2020 (3) SA 113 (WCC) at paragraph [77].
297 Wallach v Lew Geffen Estates CC 1993 (3) SA 258 (A) at 263H. See also Shoprite Holdings Ltd v Oblowitz [2006] 3 All SA 491 (C) at 500f–501b.
298 Wallach v Lew Geffen Estates CC 1993 (3) SA 258 (A) at 262I and 263H. See also Shoprite Holdings Ltd v Oblowitz [2006] 3 All SA 491 (C) at 500f–501b.
299 2014 (4) SA 614 (SCA) at 620C–621C, affirmed by the Constitutional Court in Public Protector v South African Reserve Bank 2019 (6) SA 253 (CC) at
paragraph [234] and in Damons v City of Cape Town 2022 (10) BCLR 1202 (CC) at paragraph [117]. See also, for example, Maswanganyi v Road Accident
Fund 2019 (5) SA 407 (SCA) at 411H–412A; Atlantis Property Holdings CC v Atlantis Exel Service Station CC 2019 (5) SA 443 (GP) at 458G–459A; eThekwini
Municipality v Westwood Insurance Brokers Proprietary Limited (unreported, KZP case no AR230/2018 dated 31 January 2020 — a decision of the full court) at
paragraphs [28]–[29]; National Commissioner of Police v Gun Owners South Africa 2020 (6) SA 69 (SCA) at paragraphs [26]–[29]; Philander v Makiet
(unreported, WCC case no A61/2020 dated 18 September 2020) at paragraphs [40]–[41]; Q4 Fuel (Pty) Ltd v Ellisras Brandstof En Olie Verspreiders (Pty) Ltd
(unreported, LP case no HCAA 08/2021 dated 11 November 2021 — a decision of the full court) at paragraphs [20]–[22]; Loskop Landgoed Boerdery (Pty) Ltd v
Petrus Moeleso (unreported, SCA case no 390/2021 dated 12 April 2022) at paragraph [18]; Advertising Regulatory Board NPC v Bliss Brands (Pty) Ltd 2022 (4)
SA 57 (SCA) at paragraphs [9]–[10]; Discovery Insure Limited v Masindi (unreported, SCA case no 534/2022 dated 14 June 2023) at paragraph [35]; De
Nysschen v Government Employees’ Pension Fund [2024] 4 BLLR 349 (SCA) at paragraph [17]; DB v CB 2024 (5) SA 335 (CC) at paragraph [44].
300 Humphrys v Lazer Transport Holdings Ltd 1994 (4) SA 388 (C) at 400B–F.
301 Cf Wallach v Lew Geffen Estates CC 1993 (3) SA 258 (A) at 262J–263G.
302 Combrink v Rautenbach 1951 (4) SA 357 (T) at 359C; Standard Bank of SA Ltd v Neugarten 1987 (3) SA 695 (W) at 699G; B v S 1995 (3) SA 571 (A) at
586H–I and 588B–H.
303 Combrink v Rautenbach 1951 (4) SA 357 (T) at 359G.
304 Campbell v Kwapa 2002 (6) SA 379 (W) at 382B.
305 Less v Bornstein 1948 (4) SA 333 (C); Room Hire Co (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd 1949 (3) SA 1155 (T) at 1162; Conradie v Kleingeld 1950 (2)
SA 594 (O) at 597 and 599; Oblowitz v Oblowitz 1953 (4) SA 426 (C) at 434G.
306 Less v Bornstein 1948 (4) SA 333 (C); Room Hire Co (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd 1949 (3) SA 1155 (T) at 1162; Conradie v Kleingeld 1950 (2)
SA 594 (O) at 597 and 599; Oblowitz v Oblowitz 1953 (4) SA 426 (C) at 434G.
307 Standard Bank of SA Ltd v Neugarten 1987 (3) SA 695 (W) at 699A.
308 Minister of Land Affairs and Agriculture v D&F Wevell Trust 2008 (2) SA 184 (SCA) at 207E; Miloc Financial Solutions (Pty) Ltd v Logistic Technologies (Pty)
Ltd 2008 (4) SA 325 (SCA) at 340D–E.
309 Lekup Prop Co No 4 (Pty) Ltd v Wright 2012 (5) SA 246 (SCA) at 258E–I; Murray NO v Humansdorp Co­Operative 2023 (3) SA 66 (SCA) at paragraphs [21]–
[22].
© 2018 310
Juta and
GrayCompany (Pty)Municipality
v Goodwood Ltd. 1943 CPD 78. Downloaded : Fri Apr 25 2025 15:31:26 GMT+0200 (South Africa Standard Time)
311 Brown v Cloete 1914 CPD 757; Rieseberg v Rieseberg 1926 WLD 59; Gray v Goodwood Municipality 1943 CPD 78; Remley v Lupton 1946 WLD 353; Room
 307 Standard Bank of SA Ltd v Neugarten 1987 (3) SA 695 (W) at 699A.
308 Minister of Land Affairs and Agriculture v D&F Wevell Trust 2008 (2) SA 184 (SCA) at 207E; Miloc Financial Solutions (Pty) Ltd v Logistic Technologies (Pty)
Ltd 2008 (4) SA 325 (SCA) at 340D–E.
309 Lekup Prop Co No 4 (Pty) Ltd v Wright 2012 (5) SA 246 (SCA) at 258E–I; Murray NO v Humansdorp Co­Operative 2023 (3) SA 66 (SCA) at paragraphs [21]–
[22].
310 Gray v Goodwood Municipality 1943 CPD 78.
311 Brown v Cloete 1914 CPD 757; Rieseberg v Rieseberg 1926 WLD 59; Gray v Goodwood Municipality 1943 CPD 78; Remley v Lupton 1946 WLD 353; Room
Hire Co (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd 1949 (3) SA 1155 (T) at 1162; Conradie v Kleingeld 1950 (2) SA 594 (O) at 597; Winsor v Dove 1951 (4) SA
42 (N); Adbro Investment Co Ltd v Minister of the Interior 1956 (3) SA 345 (A) at 350; Porter v Cape Town City Council 1961 (4) SA 278 (C) at 285; Joubert v
Stemmet 1965 (3) SA 215 (O) at 218–19; Wiese v Joubert 1983 (4) SA 182 (O) at 194.
312 United Bioscope Cafés Ltd v Moseley Buildings Ltd 1924 AD 60 at 69; Johannesburg Municipality v Davies 1925 AD 395 at 408–9; Hilleke v Levy 1946 AD
214 at 221.
313 Clinical Centre (Pty) Ltd v Holdgates Motor Co (Pty) Ltd 1948 (4) SA 480 (W) at 491.
314 See the order referred to in Haupt t/a Soft Copy v Brewers Marketing Intelligence (Pty) Ltd 2006 (4) SA 458 (SCA) at 469I–J; and see the alternative order of
the court in Standard Bank of SA Ltd v Neugarten 1987 (3) SA 695 (W) at 709E. See also the order in Le Mottee NO v Mkhwanazi (unreported, GP case nos
A306/2021; A307/2021 dated 8 December 2022 — a decision of the full court) at paragraph [29].
315 African Farms and Townships Ltd v Cape Town Municipality 1963 (2) SA 555 (A) at 563F; Sparks v Sparks 1998 (4) SA 714 (W) at 721F; Liberty Group Ltd t/a
Liberty Life v K&D Telemarketing CC (unreported, SCA case no 1290/18 dated 20 April 2020) at paragraph [13].
316 Purchase v Purchase 1960 (3) SA 383 (N) at 385A; African Farms and Townships Ltd v Cape Town Municipality 1963 (2) SA 555 (A) at 563E; Sparks v
Sparks 1998 (4) SA 714 (W) at 721F; Bouwer v City of Johannesburg (unreported, LAC case no JA64/06 dated 23 December 2008) at paragraphs [17]–[45];
Liberty Group Ltd t/a Liberty Life v K&D Telemarketing CC (unreported, SCA case no 1290/18 dated 20 April 2020) at paragraph [13]; but see Vena v Vena 2010
(2) SA 248 (ECP) at 253A–I where it was held that the dismissal of an application amounts to absolution from the instance.
317 See Vleissentraal v Dittmar 1980 (1) SA 918 (O); Venmei Beleggings (Edms) Bpk v Bue 1980 (3) SA 372 (T) at 377B–F.
318 Sparks v Sparks 1998 (4) SA 714 (W) at 721F.
319 See, inter alia, Livanos NO v Oates 2013 (5) SA 165 (GSJ) at 166F–H; Smith NO v Malan NO 2024 (4) SA 624 (FB) at paragraph [26]. In Graham v Law
Society, Northern Provinces 2016 (1) SA 279 (GP) Murphy J held (at 189F–290D) that rule 6(7)(a) applies to all applications and rejected arguments that, on the
one hand, it applies only to interlocutory applications under rule 6(11) and, on the other hand, only to applications initiated under rule 6(1).
320 Willowvale Estates CC v Bryanmore Estates Ltd 1990 (3) SA 954 (W) at 961H–J.
321 Smith NO v Malan NO 2024 (4) SA 624 (FB) at paragraph [26].
322 Graham v Law Society, Northern Provinces 2016 (1) SA 279 (GP) at 291I–292A.
323 Rule 4(1)(aA).
324 In Commissioner, South African Revenue Service v Public Protector 2020 (4) SA 133 (GP), reversed on appeal only in respect of the personal costs order
against the Public Protector in Public Protector v Commissioner for the South African Revenue Service 2022 (1) SA 340 (CC), it was, however, held (at
paragraphs [42] and [43]) that if there are more parties than one to the main application, a counter­application should be brought on notice of motion and
served on all the other parties.
325 Truter v Degenaar 1990 (1) SA 206 (T) at 211D–G.
326 Persadh v General Motors South Africa (Pty) Ltd 2006 (1) SA 455 (SE) at 459E–G.
327 Peacock Television Co (Pty) Ltd v Transkei Development Corporation 1998 (2) SA 259 (Tk) at 262F.
328 The term ‘rule nisi’ is derived from the English law and practice. The term may be defined as an order of court to which a fixed period of validity has been
assigned, and once that period has expired the rule lapses and cannot be revived (Fisher v Fisher 1965 (4) SA 644 (W); and see VLG Accounting CC v Koloni
Consulting Enterprise CC (unreported, EL case no 95/2021 dated 7 September 2021) at paragraph [23]; Central University of Technology v Free State Provincial
Commissioner of the South African Police Services (unreported, FB case no 3278/2022 dated 14 December 2022) at paragraph [7]). In Sokomani v African
National Congress (unreported, EL case no 531/2020 dated 3 February 2023) the court gave the following description of the nature and effect of a rule nisi (at
paragraph [16]) (footnotes omitted):
‘The rule has been defined as a court order issued at the instance of an applicant calling upon another party to show cause before the court on a particular day
why the relief applied for should not be granted. The decree, rule or order does not take effect unless the person affected fails within the stated time to appear
and show cause why it should not take effect. If cause is shown on the return day, the court must decide on the evidence adduced, and according to the
circumstances, either discharge the rule, or make it absolute, or vary it, or make such order thereon as seems just.’
If a case is postponed or removed from the roll on the return day of a rule nisi, with no extension of the rule and no date for the matter to be heard in the future,
the rule must automatically lapse (National Director of Public Prosecutions v Walsh 2009 (1) SACR 603 (T) at paragraphs [24] and [25]; VLG Accounting CC v
Koloni Consulting Enterprise CC (unreported, EL case no 95/2021 dated 7 September 2021) at paragraph [234]; Kgetlengrivier Concerned Residents v
Kgetlengrivier Local Municipality [2023] 2 All SA 452 (NWM) (a decision of the full court) at paragraph [25].
Once a rule nisi is contested, the applicant is in no better position in other respects than he was when the order was first sought (Banco de Moçambique v Inter­
Science Research and Development Services (Pty) Ltd 1982 (3) SA 330 (T) at 332B–D; Ghomeshi­Bozorg v Yousefi 1998 (1) SA 692 (W) at 696C–D)).
Our common law knew the temporary interdict and, as Van Zyl points out, a ‘curious mixture of our practice with the practice of England’ took place and the
practice arose of asking the court for a rule returnable on a certain day, but in the meantime to operate as a temporary interdict (Van Zyl Judicial Practice vol II
450 et seq; and see Tollman v Tollman 1963 (4) SA 44 (C) at 46H; Shoba v Officer Commanding, Temporary Police Camp, Wagendrift Dam; Maphanga v Officer
Commanding, South African Police Murder and Robbery Unit, Pietermaritzburg 1995 (4) SA 1 (A) at 18J–19B).
It follows axiomatically that when a rule nisi is coupled with an interim order, the order will have interim effect until the return day, when same is either confirmed
or discharged. Once the return day of a rule nisi coupled with an interim order passes without being extended, both the rule nisi and the interim order
lapse/expire (Nzwalo Investments (Pty) Ltd v Infoguardian (Pty) Ltd (unreported, GJ case no 6950/2020 dated 23 July 2021) at paragraphs 15; Kgetlengrivier
Concerned Residents v Kgetlengrivier Local Municipality [2023] 2 All SA 452 (NWM) (a decision of the full court) at paragraph [26]; Moshe v Minister of
Agriculture, Land Reform and Rural Development [2023] 2 All SA 776 (NWM) (a decision of the full court) at paragraph [20]; CSS Security v Cloete (unreported,
NWM case no UM140/2023 dated 12 August 2024) at paragraphs [23]–[24]). On the difference between a rule nisi and an interim order, see Nzwalo Investments
(Pty) Ltd v Infoguardian (Pty) Ltd (unreported, GJ case no 6950/2020 dated 23 July 2021) at paragraphs 13–14; CSS Security v Cloete (unreported, NWM case no
UM140/2023 dated 12 August 2024) at paragraphs [23]–[24].
If a rule nisi operating as an interim interdict is discharged on the return day, the interim relief comes to an end and the interim interdict is not revived or
perpetuated by the noting of an appeal (SAB Lines (Pty) Ltd v Cape Tex Engineering Works (Pty) Ltd 1968 (2) SA 535 (C); and see Ismail v Keshavjee 1957 (1)
SA 684 (T)).
329 Safcor Forwarding (Johannesburg) (Pty) Ltd v National Transport Commission 1982 (3) SA 654 (A) at 674G–H.
330 Safcor Forwarding (Johannesburg) (Pty) Ltd v National Transport Commission 1982 (3) SA 654 (A) at 674H. In National Director of Public Prosecutions v
Mohamed NO 2003 (4) SA 1 (CC) at paragraphs [28]–[30] the Constitutional Court provided a useful exposition of the historical development of ex parte
applications, the granting of rules nisi and the making of interim orders pending the return day of a rule nisi. See also Kgetlengrivier Concerned Residents v
Kgetlengrivier Local Municipality [2023] 2 All SA 452 (NWM) (a decision of the full court) at paragraphs [23]–[26].
331 Safcor Forwarding (Johannesburg) (Pty) Ltd v National Transport Commission 1982 (3) SA 654 (A) at 675A–B.
332 Lourenco v Ferela (Pty) Ltd (No 1) 1998 (3) SA 281 (T) at 290B.
333 Williams v Landmark Properties SA 1998 (2) SA 582 (W).
334 Murray NO v Ramphele (unreported, GP case no 25067/2020 dated 27 September 2021) at paragraphs [7]–[13].
335 Regular Investments (Pty) Ltd v Du Plessis 1972 (2) SA 493 (O).
336 Manton v Croucamp NO 2001 (4) SA 374 (W) at 379B and 379E–H.
337 Manton v Croucamp NO 2001 (4) SA 374 (W) at 379G.
338 Massey­Ferguson (South Africa) Ltd v Ermelo Motors (Pty) Ltd 1973 (4) SA 206 (T) at 214G; Antares (Pty) Ltd v Hammond 1977 (4) SA 29 (W) at 30D. In
Graham v Law Society, Northern Provinces 2016 (1) SA 279 (GP) at 289E–F an interlocutory application was described as ‘an incidental application for an order at
an intermediate stage in the course of litigation, aimed at settling or giving directions with regard to some preliminary or procedural question that has arisen in
the dispute between the parties’.
339 Geyser v Nedbank Ltd: In re Nedbank Ltd v Geyser 2006 (5) SA 355 (W) at 360A–C.
340 See Volume 3, Part F1.
341 In Volume 3, Part L1.
342 In Volume 3, Part N1.
343 Yorkshire Insurance Co Ltd v Reuben 1967 (2) SA 263 (E) at 265E–H; Viljoen v Federated Trust Ltd 1971 (1) SA 750 (O) at 755A–756C; Hendricks v Santam
Insurance Co Ltd 1973 (1) SA 45 (C) at 46D–47C; Muller v Paulsen 1977 (3) SA 206 (E) at 208E–G; SA Metropolitan Lewensverseke​ringsmaatskappy Bpk v Louw
NO 1981 (4) SA 329 (O) at 332G; 4 Africa Exchange (Pty) Ltd v Financial Sector Conduct Authority 2020 (6) SA 428 (GJ) at paragraph [8].
344 Rule 4(1)(aA). See Reuben v Yorkshire Insurance Co Ltd 1967 (3) SA 166 (E) at 167E–F.
345 Gisman Mining and Engineering Co (Pty) Ltd (in liquidation) v LTA Earthworks (Pty) Ltd 1977 (4) SA 25 (W) at 25F–H.
346 Gisman Mining and Engineering Co (Pty) Ltd (in liquidation) v LTA Earthworks (Pty) Ltd 1977 (4) SA 25 (W) at 25H–26A; SA Metropolitan
Lewensversekeringsmaatskappy Bpk v Louw NO 1981 (4) SA 329 (O) at 333C; Isaacs v Mangera Attorneys (unreported, GJ case no 2021/51099 dated 12 July
2023) at paragraph 15.
347 Saharawi Arab Democratic Republic v Owners and Charterers of the Cherry Blossom 2017 (5) SA 105 (ECP) at 129D.
348 See Swissborough Diamond Mines (Pty) Ltd v Government of the Republic of South Africa 1999 (2) SA 279 (T) at 335C.
349 Luna Meubel Vervaardigers (Edms) Bpk v Makin (t/a Makin’s Furniture Manufacturers) 1977 (4) SA 135 (W) at 136H; and see Mamahule Traditional Authority
v Mabyane (unreported, LP case no 2449/2021 dated 14 May 2021) at paragraph [6]. See, in general, 2003 (August) De Rebus 32; Ingrid Opperman, J ‘Urgent
Applications, the do’s and dont’s’ October 2021 The Judiciary 6; and see the Memorandum to Practitioners re the Procedure in the Pretoria Urgent Motion Court (i
e Annexure ‘A’ 13.24 to the Practice Manual of the Gauteng Division of the High Court, Pretoria) which is reproduced in Volume 3, Part H2.
Rule 6(5)(b)(iii)(bb).
© 2018 350
Juta and Company (Pty) Ltd. Downloaded : Fri Apr 25 2025 15:31:26 GMT+0200 (South Africa Standard Time)
351 Luna Meubel Vervaardigers (Edms) Bpk v Makin (t/a Makin’s Furniture Manufacturers) 1977 (4) SA 135 (W) at 137F; East Rock Trading 7 (Pty) Ltd v Eagle
Valley Granite (Pty) Ltd (unreported, GJ case no 11/33767 dated 23 September 2011) at paragraphs [6]–[9]; Mogalakwena Local Municipality v Provincial
 348 See Swissborough Diamond Mines (Pty) Ltd v Government of the Republic of South Africa 1999 (2) SA 279 (T) at 335C.
349 Luna Meubel Vervaardigers (Edms) Bpk v Makin (t/a Makin’s Furniture Manufacturers) 1977 (4) SA 135 (W) at 136H; and see Mamahule Traditional Authority
v Mabyane (unreported, LP case no 2449/2021 dated 14 May 2021) at paragraph [6]. See, in general, 2003 (August) De Rebus 32; Ingrid Opperman, J ‘Urgent
Applications, the do’s and dont’s’ October 2021 The Judiciary 6; and see the Memorandum to Practitioners re the Procedure in the Pretoria Urgent Motion Court (i
e Annexure ‘A’ 13.24 to the Practice Manual of the Gauteng Division of the High Court, Pretoria) which is reproduced in Volume 3, Part H2.
350 Rule 6(5)(b)(iii)(bb).
351 Luna Meubel Vervaardigers (Edms) Bpk v Makin (t/a Makin’s Furniture Manufacturers) 1977 (4) SA 135 (W) at 137F; East Rock Trading 7 (Pty) Ltd v Eagle
Valley Granite (Pty) Ltd (unreported, GJ case no 11/33767 dated 23 September 2011) at paragraphs [6]–[9]; Mogalakwena Local Municipality v Provincial
Executive Council, Limpopo [2014] 4 All SA 67 (GP) at paragraph [64]; AG v DG 2017 (2) SA 409 (GJ) at 412A; Masicebise Business Solutions v MEC:
Cooperative Governance Human Settlement & Traditional Affairs NC Province (unreported, NCK case no 992/2022 dated 31 May 2022) at paragraph [13];
Kopano Uitkyk Farming Enterprise (Pty) Ltd v National Government of the Republic of South Africa (unreported, FB case no 3805/2022) dated 16 March 2023) at
paragraph [48]; Dladla v Ethekwini Municipality (unreported, KZD case no 2799/2023 dated 4 April 2023) at paragraph [37]; Abadiga v Minister of Defence and
Military Veterans (unreported, GJ case no 2023/018570 dated 20 April 2023) at paragraph [21]; Kgentlengrivier Local Municipality v Bertorbrite (Pty) Ltd
(unreported, NWM case no UM118/2023 dated 26 June 2023) at paragraph [12]; Mokrane v Bornman (unreported, GJ case no 2023–062766 dated 6 July 2023)
at paragraph [13]; Munsoft (Pty) Ltd v Musina Local Municipality (unreported, LP case no 5922/2023 dated 31 July 2023) at paragraphs [8]–[9]; Lucietto N.O. v
Wellman (unreported, ECMk case no 1697/2023 dated 26 September 2023) at paragraphs [22]–[23]; MM v NM (unreported, KZP case no 15133/23P dated 18
October 2023) at paragraphs [6]–[8]; Arcfyre International (Pty) Ltd v Govender (unreported, GJ case no 2023­098452 dated 31 October 2023) at paragraph
[22]; Chung­Fung (Pty) Ltd v Mayfair Residents Association (unreported, GJ case no 2023/080436 dated 13 October 2023) at paragraph [18]; and see V de Wit
‘The correct approach to determining urgency’ (2021) 21(2) Without Prejudice 1.
352 Twentieth Century Fox Film Corporation v Anthony Black Films (Pty) Ltd 1982 (3) SA 582 (W) at 586G. This is borne out by many reported cases that deal with
urgent applications in which commercial interests are at stake. See also Bandle Investments (Pty) Ltd v Registrar of Deeds 2001 (2) SA 203 (SE); Avis Southern
Africa (Pty) Limited v Porteous 2024 (2) SA 386 (GJ) at paragraphs [17]–[21].
353 Volvo Financial Services Southern Africa (Pty) Ltd v Adamas Tkolose Trading CC (unreported, GJ case no 2023/067290 dated 1 August 2023) at paragraphs 4,
6 and 8; and see the discussion of this case in Avis Southern Africa (Pty) Limited v Porteous 2024 (2) SA 386 (GJ) at paragraphs [17]–[21].
354 Victoria Park Ratepayers’ Association v Greyvenouw CC (unreported, EC case no 511/03 dated 11 April 2003) at paragraph [5]; Khepeng v Maseko
(unreported, FB case no 4777/2022 dated 13 March 2023) at paragraph [20].
In Volvo Financial Services Southern Africa (Pty) Ltd v Adamas Tkolose Trading CC (unreported, GJ case no 2023/067290 dated 1 August 2023) Wilson J in an
obiter dictum, however, stated:
‘7 It is sometimes said that contempt of court proceedings are inherently urgent (see, for example, Rustenburg Platinum Mines Limited v Lesojane (UM44/2022)
[2022] ZANWHC 36 (21 June 2022) at paragraph 7 and Gauteng Boxing Promotors Association v Wysoke (22/6726) [2022] ZAGPJHC 18 (28 April 2022)
paragraph 14). I do not think that can be true as a general proposition. I accept that the enforcement of a court order may well qualify as urgent, in situations
where time is of the essence, but it seems to me that contempt proceedings entail the exercise of powers which often demand the kind of careful and lengthy
consideration which is generally incompatible with urgent proceedings. For example, it cannot be sound judicial policy to commit someone to prison, even where
the committal is suspended, or to impose a fine, on an urgent basis, simply because that might be the only way to enforce a court order. There must, in addition,
be some other feature of the case that renders it essential that the court order be instantly enforced, such that the penalties associated with contempt require
immediate imposition.’
See also Chung­Fung (Pty) Ltd v Mayfair Residents Association (unreported, GJ case no 2023/080436 dated 13 October 2023) at paragraphs [30]–[31];
Actophambili Roads (Pty) Limited v Member of Executive Council: Gauteng Provincial Government: Department of Road and Transport (unreported, GJ case no
2024/097004 dated 4 September 2024) at paragraph [17].
In Board of Healthcare Funders NPC v Council for Medical Schemes (unreported, GP case no 2022–012058 dated 10 August 2023) Van der Schyff J cautioned that
to regard a contempt application as inherently urgent did not mean that applicants could indiscriminately approach the urgent court on the basis of extreme
urgency without having regard to the context and facts of each individual application (at paragraph [8]).
Persistent contemptuous conduct would render a matter urgent because it risks denigrating the rule of law and the authority of the judiciary (Secretary, Judicial
Commission of Inquiry into Allegations of State Capture v Zuma 2021 (5) SA 1 (CC) at paragraph [35]).
355 South African Legal Practice Council v Mokhele (unreported, FB case no 5511/2022 dated 27 March 2023) at paragraph [5]; South African Legal Practice
Council v Van Rensburg (unreported, MM case no 3938/2023 dated 3 April 2024) at paragraph [2].
356 Thus, for example, the fact that the mandament van spolie is a speedy remedy does not in itself justify an applicant to the enrolment of the application on the
urgent court’s roll. A proper case for urgency must still be made out by the applicant. As in every other urgent application, the issue of urgency must be
evaluated in the context of the specific facts of the matter (Siyakhulisa Trading Enterprise (Pty) Ltd v Glencore Operations South Africa (Pty) Ltd (unreported, GJ
case no 2023­038568 dated 2 October 2023) at paragraphs [4]–[12]; Salcarb KZN (Pty) Ltd v Ikwezi Mining (Pty) Ltd (unreported, GJ case no 2024/043364 dated
6 May 2024) at paragraphs [36]–[40]; Markos v Minister of Police NO (unreported, NWM case no 3945/2024 dated 12 September 2024) at paragraph [23]; and
see Nala Local Municipality v Handax Machinery (Pty) Ltd (unreported, FB case no 570/2024 dated 26 July 2024) at paragraphs [36]–[39]; Van Kerken v Eskom
Holdings SOC Limited (unreported, ECMk case no 3771/2024 dated 5 September 2024) at paragraphs [26]–[28]; Tau Mining Contractors (Pty) Ltd v Aveng
Moolmans (Pty) Ltd (unreported, NCK case no 2671/2024 dated 1 November 2024) at paragraphs 10–23).
357 Dladla v Ethekwini Municipality (unreported, KZD case no 2799/2023 dated 4 April 2023) at paragraph [37]; Venter v Els 2024 (4) SA 305 (WCC) at
paragraph [19].
358 See, for example, ENX Group Limited v Spilkin (unreported, ECGq case no 2296/2022 dated 8 November 2022) at paragraph 15 and the authorities there
referred to; Pacinamix (Pty) Ltd v Patina (Pty) Ltd (unreported, GJ case no 2022/045786 dated 25 November 2022) at paragraphs [9]–[10]; Janse van Rensburg
v WAD Holdings (Pty) Ltd (unreported, GP case no 29458/2022 dated 5 December 2022) at paragraphs [40]–[43]; Christ the King Primary School CC v Vallabh
NO (unreported, ECMk case no 3922/2022 dated 13 December 2022) at paragraphs [39]–[42]; Sabelo Cele t/a Amahle Building and Renovations v Umzumbe
Local Municipality (unreported, KZP case no 407/2023P dated 6 February 2023) at paragraph [12]; Defenders of the People v Municipal Manager: The City of
Tshwane Metropolitan University (unreported, GP case no B2057/2023 dated 26 April 2023) at paragraph [9]; Kgentlengrivier Local Municipality v Bertorbrite
(Pty) Ltd (unreported, NWM case no UM118/2023 dated 26 June 2023) at paragraphs [18]–[19]; Van Der Merwe v Nel NO (unreported, ECMk case no 2483/2023
dated 11 August 2023) at paragraph [30] (where it was held that ‘the rationale is that the more immediate the reaction by the litigant to remedy the situation by
way of instituting proceedings the better it is for establishing urgency’); Dynamic Sisters Trading (Pty) Limited v Nedbank Limited (unreported, GP case no
081473/2023 dated 21 August 2023) at paragraph [18]; Lucietto N.O. v Wellman (unreported, ECMk case no 1697/2023 dated 26 September 2023) at paragraph
[24]; Chung­Fung (Pty) Ltd v Mayfair Residents Association (unreported, GJ case no 2023/080436 dated 13 October 2023) at paragraphs [25]–[27]; MM v NM
(unreported, KZP case no 15133/23P dated 18 October 2023) at paragraphs [6]–[8]; Arcfyre International (Pty) Ltd v Govender (unreported, GJ case no 2023­
098452 dated 31 October 2023) at paragraph [24]; Shivambu v Chairpersons of the Joint Committee on Ethics and Members Interests (unreported, WCC case no
22223/23 dated 1 February 2024) at paragraph [33].
359 Nelson Mandela Metropolitan Municipality v Greyvenouw CC 2004 (2) SA 81 (SE) at 94C–D; Stock v Minister of Housing 2007 (2) SA 9 (C) 12I–13A;
Mfuniselwa v Mfuniselwa (unreported, ECGq case no 2818/2022 dated 13 December 2022) at paragraph [13]. See also Kumah v Minister of Home Affairs 2018
(2) SA 510 (GJ) at 511D–E (a case dealing with urgent applications by illegal foreigners who were detained pending deportation, for release in order that they
might apply for asylum).
360 Nelson Mandela Metropolitan Municipality v Greyvenouw CC 2004 (2) SA 81 (SE) at paragraphs [37], [38] and [40]; ENX Group Limited v Spilkin (unreported,
ECGq case no 2296/2022 dated 8 November 2022) at paragraphs 13–14; Kgentlengrivier Local Municipality v Bertorbrite (Pty) Ltd (unreported, NWM case no
UM118/2023 dated 26 June 2023) at paragraph [16].
361 I L & B Marcow Caterers (Pty) Ltd v Greatermans SA Ltd; Aroma Inn (Pty) Ltd v Hypermarkets (Pty) Ltd 1981 (4) SA 108 (C) at 110C–D; and see paragraph
34(3) of the Consolidated Practice Notes of the Western Cape Division of the High Court, Cape Town, in Volume 3, Part N1. Although contempt of court
proceedings are inherently urgent, contempt on its own is not sufficient to entitle an applicant to jump the queue and have its application heard and determined
in the urgent court (Fraser Solar GMBH v Trans­Caledon Tunnel Authority In re: Trans­Caledon Tunnel Authority v Fraser Solar GMBH (unreported, GJ case nos
2020/33700; 2021/35990 dated 29 December 2021) at paragraph [22]).
362 Luna Meubel Vervaardigers (Edms) Bpk v Makin (t/a Makin’s Furniture Manufacturers) 1977 (4) SA 135 (W) at 137A–E. See also the Memorandum to
Practitioners re the Procedure in the Pretoria Urgent Motion Court (i e Annexure ‘A’ 13.24 to the Practice Manual of the Gauteng Division of the High Court,
Pretoria, which is reproduced in Volume 3, Part H2) and paragraph 9.23 of the Practice Manual of the Gauteng Local Division (i e local seat) of the High Court,
Johannesburg (in Volume 3, Part H3). As to the practice in other divisions of the High Court, see Volume 3, Parts F2, I2 and L1.
363 Luna Meubel Vervaardigers (Edms) Bpk v Makin (t/a Makin’s Furniture Manufacturers) 1977 (4) SA 135 (W) at 137F; and see Minister of Water Affairs and
Forestry v Stilfontein Gold Mining Co Ltd 2006 (5) SA 333 (W) at 339E–H; Harvey v Niland 2016 (2) SA 436 (ECG) at 443C–E; Dladla v Ethekwini Municipality
(unreported, KZD case no 2799/2023 dated 4 April 2023) at paragraph [37]; Mokrane v Bornman (unreported, GJ case no 2023–062766 dated 6 July 2023) at
paragraph [14]. In Davy v Douglas 1999 (1) SA 1043 (N) at 1060D the court condoned non­compliance with the provisions of s 27(a) of the (now repealed)
Supreme Court Act 59 of 1959 in relation to service of the application where the matter was inherently sufficiently urgent. The violation of a person’s privacy and
dignity in such manner that he could not be expected to endure the anxiety and embarrassment of a continued violation, created a degree of urgency which
justified the hearing of the application not in the ordinary course (Prinsloo v RCP Media Ltd t/a Rapport 2003 (4) SA 456 (T) at 462B–F).
364 MV Tai Harmony: Sure Success Steamship SA v MV Tai Harmony 2024 (4) SA 640 (ECGq) at paragraph [42], referring to Caledon Street Restaurants CC v
D’Aveira [1998] JOL 1832 (SE) at paragraphs 7­9.
365 Luna Meubel Vervaardigers (Edms) Bpk v Makin (t/a Makin’s Furniture Manufacturers) 1977 (4) SA 135 (W) at 137E; I L & B Marcow Caterers (Pty) Ltd v
Greatermans SA Ltd; Aroma Inn (Pty) Ltd v Hypermarkets (Pty) Ltd 1981 (4) SA 108 (C) at 110B.
366 2016 (2) SA 561 (GJ).
367 At 571C–573B (footnotes omitted).
368 ENX Group Limited v Spilkin (unreported, ECGq case no 2296/2022 dated 8 November 2022) at paragraph 12 and the authorities there referred to.
369 Unreported, KZD case no D531/2023 dated 1 March 2023.
370 At paragraph [2].
371 Unreported, WCC case no 23230/2023 dated 30 January 2024.
372 Galp v Tansley NO 1966 (4) SA 555 (C) at 558H–559A; Yorigami Maritime Construction Co Ltd v Nissho­Iwai Co Ltd 1977 (4) SA 682 (C) at 692B; Southern
Pride Foods (Pty) Ltd v Mohidien 1982 (3) SA 1068 (C); Syfrets Mortgage Nominees Ltd v Cape St Francis Hotels (Pty) Ltd 1991 (3) SA 276 (SE); Lehani NO v
Lagoon Beach Hotel (Pty) Ltd 2015 (4) SA 72 (WCC) at 79F–G, partially overturned on appeal, but not on this point, in Lagoon Beach Hotel (Pty) Ltd v Lehane
NO 2016 (3) SA 143 (SCA); JC Administrative Services (Pty) Ltd v Sekheleli (unreported, GJ case no 2023/006391 dated 22 September 2023) at paragraph [15].
© 2018 373 Mears
Juta and v African
Company Platinum
(Pty) Ltd. Mines Ltd (1) 1922 WLD 48 at 55; Yorigami Maritime Construction
Downloaded Co :Ltd
Fri vApr
Nissho­Iwai Co Ltd 1977
25 2025 15:31:26 (4) SA 682
GMT+0200 (C) Africa
(South at 692B.
Standard Time)
374 2021 (5) SA 327 (CC).
 371 Unreported, WCC case no 23230/2023 dated 30 January 2024.
372 Galp v Tansley NO 1966 (4) SA 555 (C) at 558H–559A; Yorigami Maritime Construction Co Ltd v Nissho­Iwai Co Ltd 1977 (4) SA 682 (C) at 692B; Southern
Pride Foods (Pty) Ltd v Mohidien 1982 (3) SA 1068 (C); Syfrets Mortgage Nominees Ltd v Cape St Francis Hotels (Pty) Ltd 1991 (3) SA 276 (SE); Lehani NO v
Lagoon Beach Hotel (Pty) Ltd 2015 (4) SA 72 (WCC) at 79F–G, partially overturned on appeal, but not on this point, in Lagoon Beach Hotel (Pty) Ltd v Lehane
NO 2016 (3) SA 143 (SCA); JC Administrative Services (Pty) Ltd v Sekheleli (unreported, GJ case no 2023/006391 dated 22 September 2023) at paragraph [15].
373 Mears v African Platinum Mines Ltd (1) 1922 WLD 48 at 55; Yorigami Maritime Construction Co Ltd v Nissho­Iwai Co Ltd 1977 (4) SA 682 (C) at 692B.
374 2021 (5) SA 327 (CC).
375 At paragraphs [19]–[23].
376 2016 (3) SA 143 (SCA).
377 At 150H–151D.
378 Chaimowitz v Chaimowitz (1) 1960 (4) SA 818 (C) at 819F–G; Yorigami Maritime Construction Co Ltd v Nissho­Iwai Co Ltd 1977 (4) SA 682 (C) at 692C.
379 2016 (3) SA 143 (SCA).
380 At 152G–H.
381 Luna Meubel Vervaardigers (Edms) Bpk v Makin (t/a Makin’s Furniture Manufacturers) 1977 (4) SA 135 (W) at 139F–140A; Commissioner, South African
Revenue Services v Hawker Air Services (Pty) Ltd; Commissioner, South African Revenue Service v Hawker Aviation Partnership 2006 (4) SA 292 (SCA) at
299H–300A; Njokweni v Qina (unreported, ECM case no 3839/2022 dated 23 March 2023) at paragraph [16]. In Vena v Vena 2010 (2) SA 248 (ECP) the court
remarked (at 252I–253B), first, that the judgment in the latter case did not place any restriction on the discretion of a trial court to dismiss a claim as a mark of
its displeasure at an abuse of the process of the court, whether it is an abuse of the procedure of urgency or any other procedure; and, secondly, that the
judgment suggested that an order striking the application from the roll was an appropriate order because, in that event, the matter could be set down again on
proper notice. The court held that a dismissal of the claim under the prevailing circumstances was generally equivalent to an order for absolution from the
instance, in which event it was open for the applicant to set the matter down again (at 253A–I). See also PT Operational Services (Pty) Ltd v Rawu on behalf of
Ngwetsana 2013 (34) ILJ 1138 (LAC) at paragraphs [31]–[36] and Inzalo Enterprise Management Systems (Pty) Ltd v Mantsopa Local Municipality (unreported,
FB case no 3832/2023 dated 22 November 2023) at paragraphs [11]–[12], [18]–[20], [47] and [55]. On the contrary, it has been held that the dismissal or
refusal of an application amounts to a decision in favour of the respondent (Purchase v Purchase 1960 (3) SA 383 (N) at 385A; African Farms and Townships Ltd
v Cape Town Municipality 1963 (2) SA 555 (A) at 563E; Sparks v Sparks 1998 (4) SA 714 (W) at 721F).
382 Commissioner, South African Revenue Services v Hawker Air Services (Pty) Ltd; Commissioner, South African Revenue Service v Hawker Aviation
Partnership 2006 (4) SA 292 (SCA) at 300A. In Inzalo Enterprise Management Systems (Pty) Ltd v Mantsopa Local Municipality (unreported, FB case no
3832/2023 dated 22 November 2023) it was held that ‘the enrollment [sic] must be in accordance with the nature of the application and the rules applicable
thereto’. Thus, if it is an opposed application, rule 6(5)(a) finds application (at paragraph [22]).
383 Inzalo Enterprise Management Systems (Pty) Ltd v Mantsopa Local Municipality (unreported, FB case no 3832/2023 dated 22 November 2023) at paragraphs
[23]–[24].
384 Laggar v Shell Auto Care (Pty) Ltd 2001 (2) SA 136 (C) at 138F–H.
385 Cornerstone Logistics (Pty) Ltd v Zacpak Cape Town Depot (Pty) Ltd [2022] 2 All SA 13 (SCA) at paragraph [30].
386 Gallagher v Norman’s Transport Lines (Pty) Ltd 1992 (3) SA 500 (W) at 502H.
387 Scott v Hough 2007 (3) SA 425 (O) at 431B–C.
388 Republikeinse Publikasies (Edms) Bpk v Afrikaanse Pers Publikasies (Edms) Bpk 1972 (1) SA 773 (A) at 782B; I L & B Marcow Caterers (Pty) Ltd v
Greatermans SA Ltd; Aroma Inn (Pty) Ltd v Hypermarkets (Pty) Ltd 1981 (4) SA 108 (C) at 110E; Gallagher v Norman’s Transport Lines (Pty) Ltd 1992 (3) SA
500 (W) at 502F–G.
389 I L & B Marcow Caterers (Pty) Ltd v Greatermans SA Ltd; Aroma Inn (Pty) Ltd v Hypermarkets (Pty) Ltd 1981 (4) SA 108 (C) at 110G; Kyamandi Town
Committee v Mkhwaso 1991 (2) SA 630 (C) at 633I.
390 Eniram (Pty) Ltd v New Woodholme Hotel (Pty) Ltd 1967 (2) SA 491 (E) at 493B; Luna Meubel Vervaardigers (Edms) Bpk v Makin (t/a Makin’s Furniture
Manufacturers) 1977 (4) SA 135 (W) at 137F; Kyamandi Town Committee v Mkhwaso 1991 (2) SA 630 (C) at 633I–634A; Salt v Smith 1991 (2) SA 186 (Nm).
391 Republikeinse Publikasies (Edms) Bpk v Afrikaanse Pers Publikasies (Edms) Bpk 1972 (1) SA 773 (A) at 782A–G; I L & B Marcow Caterers (Pty) Ltd v
Greatermans SA Ltd; Aroma Inn (Pty) Ltd v Hypermarkets (Pty) Ltd 1981 (4) SA 108 (C) at 110E; Gallagher v Norman’s Transport Lines (Pty) Ltd 1992 (3) SA
500 (W) at 502I–503C.
In Nomandela v Nyandeni Local Municipality 2021 (5) SA 619 (ECM) the applicant’s urgent application for interim relief was met with the respondent’s point in
limine that the applicant failed to comply with rule 41A(2)(a). At issue was whether the court should allow the application to proceed as it stood. It was held (at
paragraphs [9]–[11]) that rule 41A(2)(b) compels a respondent to also file its notice as to whether it agrees to or opposes referral of the dispute for mediation.
The rule did not suggest that the respondent’s compliance was dependent on the applicant’s filing of a rule 41A(2)(a) notice. Even if it were, nowhere in the
answering affidavit was it stated that the respondent would have wished to explore or not explore the mediation process, but could not do so for reason of the
applicant’s non­filing. The respondent could have complied with its part of the obligation in terms of the rule or communicated its stance on mediation regardless
of the applicant’s failure. The rules were meant to be complied with, but they were meant for the court, and not the other way round. While it was ideal that
litigants comply with rule 41A, in the interests of justice the issues raised in the application called for immediate resolution rather than removing the matter from
the roll in order for the litigants to pronounce on whether they would agree to or oppose mediation. The point in limine was accordingly dismissed.
In Tlang Ka Phulo Farming Project v Minister of Agriculture, Land Reform and Rural Development (unreported, NWM case no UM 82/23 dated 7 June 2023) an
urgent application was struck from the roll for, amongst other reasons, the applicant’s failure to comply with rule 41A(2)(a). In Ethypersadh v Minister of Police
NO (unreported, GP case no 2023­064414 dated 25 July 2023) it was, however, held that an application brought on an urgent basis would of necessity not be
subject to the provisions of rule 41A; to require an applicant to state that there could be no compliance with the provisions of that rule would be stating the
obvious (at paragraph [7]). See also Shannin and Ulisha Investments (Pty) Limited t/a Fast Spares v Mahomed (unreported, KZP case no 16524/2022P dated 16
November 2023) at paragraph [14].
If an applicant acts in terms of rule 6(12)(a) and informs the respondent that he regards the application as urgent, it follows that the respondent is obliged to
provisionally accept the rules that the applicant has adopted. At the commencement of the hearing, the respondent can object or, if necessary, apply for the late
filing of his papers. In the meantime, the respondent dares not disregard the rules that the applicant has adopted (Mamahule Traditional Authority v Mabyane
(unreported, LP case no 2449/2021 dated 14 May 2021) at paragraph [8]).
392 Republikeinse Publikasies (Edms) Bpk v Afrikaanse Pers Publikasies (Edms) Bpk 1972 (1) SA 773 (A) at 780C–E.
393 Gallagher v Norman’s Transport Lines (Pty) Ltd 1992 (3) SA 500 (W) at 503B.
394 Gouws v Scholtz 1989 (4) SA 315 (NC) at 322H; Gallagher v Norman’s Transport Lines (Pty) Ltd 1992 (3) SA 500 (W) at 503B.
395 Safcor Forwarding (Johannesburg) (Pty) Ltd v National Transport Commission 1982 (3) SA 654 (A) at 674G–675B; Turquoise River Incorporated v
McMenamin 1992 (3) SA 653 (D) at 657D–658D. See also Kyamandi Town Committee v Mkhwaso 1991 (2) SA 630 (C); Scott v Hough 2007 (3) SA 425 (O).
396 Gallagher v Norman’s Transport Lines (Pty) Ltd 1992 (3) SA 500 (W) at 503D–E.
397 Section 35 of the General Law Amendment Act 62 of 1955. The section was considered in Cassim v The Master 1960 (2) SA 347 (N); Freinkel v
Scheepers 1961 (1) SA 271 (W); Maharaj Brothers v Pieterse Bros Construction (Pty) Ltd and Another 1961 (2) SA 232 (N); Mkhize v Swemmer 1967 (1) SA 186
(D); Allie v De Vries NO 1982 (1) SA 774 (T); Jafta v Minister of Law and Order 1991 (2) SA 286 (A) at 294G–295H; Breukel v Department of Home Affairs 2023
(4) SA 583 (WCC) at paragraphs [47] and [48.2]. An Anton Piller order is not ‘a rule nisi operating as an interim interdict’ and an applicant seeking an Anton
Piller order against the State need not comply with the provisions of s 35 of the General Law Amendment Act 62 of 1955 (Shoba v Officer Commanding,
Temporary Police Camp, Wagendrift Dam; Maphanga v Officer Commanding, South African Police Murder and Robbery Unit, Pietermaritzburg 1995 (4) SA 1
(A) at 19C–H). See further Part D8 below.
398 Venture Capital Ltd v Mauerberger 1991 (1) SA 96 (W).
399 GN R2133 in GG 46475 of 3 June 2022.
400 Mangala v Mangala 1967 (2) SA 415 (E); Eniram (Pty) Ltd v New Woodholme Hotel (Pty) Ltd 1967 (2) SA 491 (E) at 493A–B; Sikwe v SA Mutual Fire & General
Insurance Co Ltd 1977 (3) SA 438 (W) at 440H; Luna Meubel Vervaardigers (Edms) Bpk v Makin (t/a Makin’s Furniture Manufacturers) 1977 (4) SA 135 (W) at
137F; I L & B Marcow Caterers (Pty) Ltd v Greatermans SA Ltd; Aroma Inn (Pty) Ltd v Hypermarkets (Pty) Ltd 1981 (4) SA 108 (C) at 110H–111A; Makhuvha v
Lukoto Bus Service (Pty) Ltd 1987 (3) SA 376 (V) at 388I–389D; Salt v Smith 1991 (2) SA 186 (Nm); Cekeshe v Premier, Eastern Cape 1998 (4) SA 935 (Tk) at
948F; Heathrow Property Holdings No 3 CC v Manhattan Place Body Corporate 2022 (1) SA 211 (WCC) at paragraphs [20]–[27]; Scientific Group (Pty) Limited v
South African National Blood Services (unreported, GJ case no 5495/2022 dated 18 March 2022) at paragraph [9]; Arcfyre International (Pty) Ltd v Govender
(unreported, GJ case no 2023­098452 dated 31 October 2023) at paragraph [24]; Jonker v De Wee (unreported, NCK case no 1859/2023 dated 3 November
2023) at paragraph 13.
401 Mlezana v South African Civic Organisation (unreported, ECG case no 3208/18 dated 12 November 2018) at paragraph [5]; Arcfyre International (Pty) Ltd v
Govender (unreported, GJ case no 2023­098452 dated 31 October 2023) at paragraph [23].
402 ISDN Solutions (Pty) Ltd v CSDN Solutions CC 1996 (4) SA 484 (W) at 486H; and see Sheriff Pretoria North­East v Flink [2005] 3 All SA 492 (T); National
Director of Public Prosecutions v Braun 2007 (1) SA 189 (C) at 193I–194B; Competition Commission v Wilmar Continental Edible Oils & Fats (Pty) Ltd 2020 (4) SA
527 (KZP) at paragraph [17]; Kirpal v Peters In Re: Peters v Kirpal (unreported, GP case no 32823/2021 dated 23 June 2022) at paragraph [11].
403 Magqabi S.Z Attorneys v Ntantiso (unreported, ECEL case no EL1685/2023 dated 23 February 2024) at paragraphs [20]–[25]; Mavundla v MEC: Department of
Corporative Goverment and Traditional Affairs Kwazulu­Natal (unreported, KZP case no 7940/2024 dated 16 August 2024) at paragraph [36].
404 Siegwart v Fey (unreported, case no 12252/99 dated 25 November 1998); Industrial Development Corporation of South Africa v Sooliman 2013 (5) SA 603
(GSJ) at paragraphs [9] and [12]; Farmers Trust v Competition Commission 2020 (4) SA 541 (GP) at paragraph [14]; Nemavhola v Rambauli (unreported, LP
case nos HCAA23/2023; 5602/2023 dated 11 August 2023 — a decision of the full court) at paragraph [29].
405 Industrial Development Corporation of South Africa v Sooliman 2013 (5) SA 603 (GSJ) at paragraphs [9] and [12]; Farmers Trust v Competition
Commission 2020 (4) SA 541 (GP) at paragraphs [15]–[20].
406 Siegwart v Fey (unreported, case no 12252/99 dated 25 November 1998).
407 2024 (1) SA 373 (SCA); reaffirmed in MV New Endeavour v Indian Oil Corporation Ltd 2024 (6) SA 64 (SCA) at paragraph [20]. See also Breukel v
Department of Home Affairs 2023 (4) SA 583 (WCC) at paragraphs [41]–[43]; Nemavhola v Rambauli (unreported, LP case nos HCAA23/2023; 5602/2023 dated
11 August 2023 — a decision of the full court) at paragraphs [32]–[33].
408 ISDN Solutions (Pty) Ltd v CSDN Solutions CC 1996 (4) SA 484 (W) at 486H–I; Lourenco v Ferela (Pty) Ltd (No 1) 1998 (3) SA 281 (T) at 290E–H; National
Director of Public Prosecutions v Braun 2007 (1) SA 189 (C) at 194B and 197C–D; Oosthuizen v Mijs 2009 (6) SA 266 (W) at 267E–268C; Industrial Development
© 2018 Juta and Company
Corporation (Pty)Africa
of South Ltd. v Sooliman 2013 (5) SA 603 (GSJ) at paragraph [10]; Farmers
Downloaded
Trust v: Competition
Fri Apr 25 2025 15:31:26 2020
Commission GMT+0200
(4) SA (South Africa
541 (GP) Standard Time)
at paragraphs
[22]–[24]; Kirpal v Peters In Re: Peters v Kirpal (unreported, GP case no 32823/2021 dated 23 June 2022) at paragraph [12]; TFM Customising Centre (Pty) Ltd
 406 Siegwart v Fey (unreported, case no 12252/99 dated 25 November 1998).
407 2024 (1) SA 373 (SCA); reaffirmed in MV New Endeavour v Indian Oil Corporation Ltd 2024 (6) SA 64 (SCA) at paragraph [20]. See also Breukel v
Department of Home Affairs 2023 (4) SA 583 (WCC) at paragraphs [41]–[43]; Nemavhola v Rambauli (unreported, LP case nos HCAA23/2023; 5602/2023 dated
11 August 2023 — a decision of the full court) at paragraphs [32]–[33].
408 ISDN Solutions (Pty) Ltd v CSDN Solutions CC 1996 (4) SA 484 (W) at 486H–I; Lourenco v Ferela (Pty) Ltd (No 1) 1998 (3) SA 281 (T) at 290E–H; National
Director of Public Prosecutions v Braun 2007 (1) SA 189 (C) at 194B and 197C–D; Oosthuizen v Mijs 2009 (6) SA 266 (W) at 267E–268C; Industrial Development
Corporation of South Africa v Sooliman 2013 (5) SA 603 (GSJ) at paragraph [10]; Farmers Trust v Competition Commission 2020 (4) SA 541 (GP) at paragraphs
[22]–[24]; Kirpal v Peters In Re: Peters v Kirpal (unreported, GP case no 32823/2021 dated 23 June 2022) at paragraph [12]; TFM Customising Centre (Pty) Ltd
v Firstrand Bank Ltd t/a First National Bank (unreported, GJ case no 048154/2022 dated 15 December 2022) at paragraph [5]; Bester NO v Mirror Trading
International (Pty) Ltd t/a MTI (in Liquidation) 2024 (1) SA 112 (WCC) at paragraph [14]; Mazetti Management Services (Pty) Ltd v AmaBhungane Centre for
Investigative Journalism NPC 2023 (6) SA 578 (GJ) at paragraph [14]; Mavundla v MEC: Department of Corporative Goverment and Traditional Affairs Kwazulu­
Natal (unreported, KZP case no 7940/2024 dated 16 August 2024) at paragraph [36].
409 Industrial Development Corporation of South Africa v Sooliman 2013 (5) SA 603 (GSJ) at paragraph [10]; Farmers Trust v Competition Commission 2020 (4)
SA 541 (GP) at paragraph [23].
410 Joint Venture Comprising Gorogang Plant Razz Civils v Infiniti Insurance Limited (unreported, GJ case no 02252/2023 dated 15 October 2024) at paragraph
[71].
411 ISDN Solutions (Pty) Ltd v CSDN Solutions CC 1996 (4) SA 484 (W) at 486I–487A; Lourenco v Ferela (Pty) Ltd (No 1) 1998 (3) SA 281 (T) at 290C–H; National
Director of Public Prosecutions v Braun 2007 (1) SA 189 (C) at 194C; Kirpal v Peters In Re: Peters v Kirpal (unreported, GP case no 32823/2021 dated 23 June
2022) at paragraph [13].
412 Oosthuizen v Mijs 2009 (6) SA 266 (W) at 267E–269I and the authorities there referred to; Ultimate Sports Nutrition (Pty) Ltd v Bezuidenhout (unreported, GP
case no 62515/20 dated 8 December 2020) at paragraphs [6]–[13]; Kirpal v Peters In Re: Peters v Kirpal (unreported, GP case no 32823/2021 dated 23 June
2022) at paragraph [17], all of which did not follow Rhino Hotel & Resort (Pty) Ltd v Forbes 2000 (1) SA 1180 (W) at 1182E where it was held that the original
application is to be reconsidered on its own without reference to anything else. The Oosthuizen case was followed in Elmasdal Boerdery (Pty) Ltd v Erasmus
(unreported, FB case no 5196/2022 dated 15 February 2023) at paragraph [5]. See also Bester NO v Mirror Trading International (Pty) Ltd t/a MTI (in
Liquidation) 2024 (1) SA 112 (WCC) at paragraphs [11]–[13]. In South African Airways Soc v BDFM Publishers (Pty) Ltd 2016 (2) SA 561 (GJ) it was stated (at
565I) that the ‘approach by the court is a comprehensive revisit of the circumstances as they present at the time of the reconsideration’. In Basil Read (Pty) Ltd v
Nedbank Ltd 2012 (6) SA 514 (GSJ) the Oosthuizen case was distinguished and it was held (at 520C) that the Rhino case remains authority for the proposition
that a party who seeks reconsideration of an order under rule 6(12)(c) is entitled to seek such reconsideration on the original application without reference to
anything else, in other words, that the applicant in the original application may not supplement its original founding affidavit with additional matter when faced
with an application for reconsideration. In Industrial Development Corporation of South Africa v Sooliman 2013 (5) SA 603 (GSJ) Sutherland J, having considered
the various judicial pronouncements on rule 6(12)(c) regarding the filing of affidavits in applications for reconsideration (at 604F–606I), held (at 606I–607A):
‘[12] Accordingly, in my view:
[12.1] If a respondent who invokes rule 6(12)(c) chooses not to put up an answering affidavit, then the respondent [Author’s note: Evidently the applicant.]
likewise has no need nor an opportunity to put up a reply.
[12.2] If a respondent who invokes rule 6(12)(c) chooses to file an answer, then the applicant may file a reply, which is, obviously, subject to the general rules
and practice about not introducing new matter illegitimately.’
In Mazetti Management Services (Pty) Ltd v AmaBhungane Centre for Investigative Journalism NPC 2023 (6) SA 578 (GJ) Sutherland DJP described the position
as follows:
‘[14] Rule 6(12)(c) confers a wide discretion on the court hearing the reconsideration application. The scheme of the rules of court, as a whole, and, no less, of
rule 6 itself, is to facilitate orderly and fair proceedings. Rule 6(12)(c) exists to remedy an injustice if one was done when the ex parte order was granted. What it
creates is the opportunity for the respondent to rebut the case for the order. To that end a respondent may either argue that the order was unjustified on its own
terms or provide additional facts on affidavit to support an argument that, on an enlarged factual matrix, the order should be set aside. If a respondent
introduces additional evidence, an applicant has a right of reply, but it is not open to an applicant to seek fresh relief or introduce, itself, new allegations of fact.
The scheme of the rule takes as its point of departure that the applicant has got its order and the reconsideration is about whether it can keep its order. To
belabour the point, an applicant cannot make out a better case for the ex parte order than the case it put before the court when the order was granted. It was
for this reason that an attempt by the applicants to bring a counterclaim to seek further relief was dismissed by me out of hand. It was irregular, and yet another
abuse of the process.’
413 The Reclamation Group (Pty) Ltd v Smit 2004 (1) SA 215 (SE) at 218D–F; Bester NO v Mirror Trading International (Pty) Ltd t/a MTI (in Liquidation) 2024 (1)
SA 112 (WCC) at paragraphs [11]–[13]; Fantom Operations Ltd v Avenant (unreported, WCC case nos 13632/2023; 11479/2023 dated 15 November 2023) at
paragraph [35].
414 The Reclamation Group (Pty) Ltd v Smit 2004 (1) SA 215 (SE) at 218D–F; Bester NO v Mirror Trading International (Pty) Ltd t/a MTI (in Liquidation) 2024 (1)
SA 112 (WCC) at paragraphs [11]–[13].
415 The Reclamation Group (Pty) Ltd v Smit 2004 (1) SA 215 (SE) at 218D–G.
416 ISDN Solutions (Pty) Ltd v CSDN Solutions CC 1996 (4) SA 484 (W) at 487D–C; National Director of Public Prosecutions v Braun 2007 (1) SA 189 (C) at 194E;
Kirpal v Peters In Re: Peters v Kirpal (unreported, GP case no 32823/2021 dated 23 June 2022) at paragraphs [14]–[15]; Molebush Investments CC v City Of
Johannesburg (unreported, GJ case nos 2023/082305; 2023/083488 dated 11 September 2023) at paragraphs [24]–[25]; Fetakgomo Tubatse Local Municipality v
Mapale Distributors and Enterprise CC (unreported, LP case no 6175/2023 dated 2 October 2023) at paragraph [15]; Mavundla v MEC: Department of Corporative
Goverment and Traditional Affairs Kwazulu­Natal (unreported, KZP case no 7940/2024 dated 16 August 2024) at paragraph [36]. See also Sheriff Pretoria North­
East v Flink [2005] 3 All SA 492 (T) at 498f–499f; Oosthuizen v Mijs 2009 (6) SA 266 (W) at 268C–269D.
417 ISDN Solutions (Pty) Ltd v CSDN Solutions CC 1996 (4) SA 484 (W) at 487D; National Director of Public Prosecutions v Braun 2007 (1) SA 189 (C) at 194D–E.
418 Rhino Hotel & Resort (Pty) Ltd v Forbes 2000 (1) SA 1180 (W) at 1185A–B; Audio Vehicle Systems v Whitfield 2007 (1) SA 434 (C) at 443C–D; MEC for Co­
operative Governance and Traditional Affairs v Maphanga 2018 (3) SA 246 (KZP) at 251A–252H and 253A.
419 Fisheries Development Corporation of SA Ltd v Jorgensen 1979 (3) SA 1331 (W) at 1339E–F; Bisset v Boland Bank Ltd 1991 (4) SA 603 (D) at 608B–E; Cohen
v Cohen 2003 (1) SA 103 (C) at 108D–H. Under s 173 of the Constitution of the Republic of South Africa, 1996, the superior courts have the inherent power to
protect and regulate their own process and, for example, prevent an abuse of their process.
420 MEC, Department of Co­Operative Governance and Traditional Affairs v Maphanga 2021 (4) SA 131 (SCA) at paragraphs [25] and [27] and the cases there
referred to. The purpose of the Vexatious Proceedings Act 3 of 1956 was discussed in Beinash v Ernst & Young 1999 (2) SA 116 (CC) at 112F–H where the
following was held:
‘This purpose is “to put a stop to persistent and ungrounded institution of legal proceedings”. The Act does so by allowing a court to screen (as opposed to
absolutely bar) a “person (who) has persistently and without any reasonable ground instituted legal proceedings in any Court or inferior court”. This screening
mechanism is necessary to protect at least two important interests. These are the interests of the victims of the vexatious litigant who have repeatedly been
subjected to the costs, harassment and embarrassment of unmeritorious litigation; and the public interest that the functioning of the court and the administration
of justice proceed unimpeded by the clog of groundless proceedings.’
See also, for example, ABSA Bank Ltd v Dlamini 2008 (2) SA 262 (T); MEC for Co­operative Governance and Traditional Affairs v Maphanga 2018 (3) SA 246
(KZP) at 249E and 252H–253A; Gouws v Taxing Mistress (Port Elizabeth) (unreported, ECPE case nos 3300/2018 and 525/2018 dated 5 November 2020) at
paragraphs [27]–[39]; Pricewaterhouse Coopers Inc v Pienaar (unreported, WCC case no 1845/2021 dated 10 September 2021); Emam v Carlson (unreported,
WCC case no 20740/2022 dated 11 April 2023); Gcora v Nelson Mandela Bay Municipality (unreported, ECGq case nos 1414/2016; 992/2016 dated 16 May 2023)
at paragraphs [40]–[52]; Minister of Police v Chauke (unreported, GP case no 59344/2021 dated 23 August 2023); Jiyana v Hardisty (unreported, WCC case no
22862/2023 dated 19 January 2024).
421 Viljoen v Federated Trust Ltd 1971 (1) SA 750 (O) at 755A; Wiese v Joubert 1983 (4) SA 182 (O) at 197D; Optimum Coal Terminal (Pty) Limited v Richards
Bay Coal Terminal (Pty) Limited (unreported, KZD case no D531/2023 dated 31 May 2023) at paragraphs [129]–[130].
422 Ehler (Pty) Ltd v Silver 1947 (4) SA 173 (W) at 178; Abromowitz v Jacquet (1) 1950 (2) SA 247 (W); Western Bank Ltd v Thorne NO 1973 (3) SA 661 (C) at
664D; The Free Press of Namibia (Pty) Ltd v Cabinet for the Interim Government of South West Africa 1987 (1) SA 614 (SWA) at 621H–I; Swissborough Diamond
Mines (Pty) Ltd v Government of the Republic of South Africa 1999 (2) SA 279 (T) at 335E–F; Securefin Ltd v KNA Insurance and Investment Brokers (Pty) Ltd
[2001] 3 All SA 15 (T) at 30g–h.
423 Elher (Pty) Ltd v Silver 1947 (4) SA 173 (W); Molebatsi v Magasela 1953 (4) SA 484 (W); Meinert (Pty) Ltd v Administrator of South West Africa in Executive
Committee 1959 (2) SA 498 (SWA); Shephard v Tuckers Land and Development Corporation (Pty) Ltd (1) 1978 (1) SA 173 (W) at 177D–E; Club Mykonos
Langebaan Ltd v Langebaan Country Estate Joint Venture 2009 (3) SA 546 (C) at paragraph [65]; LA Group (Pty) Ltd v Stable Brands (Pty) Ltd 2022 (4) SA 448
(SCA) (minority judgment) at paragraph [28]; Premier FMCG (Pty) Ltd v Baker 2023 (5) SA 279 (GP) at paragraph [24], following Wiese v Joubert 1983 (4) SA
182 (O).
424 Dennis v Garment Workers’ Union, Cape Peninsula 1955 (3) SA 232 (C) at 239H; Gore v Amalgamated Mining Holdings 1985 (1) SA 294 (C) at 295H–296B;
and see Langham and Another NNO v Milne NO 1961 (1) SA 811 (N) at 816D–F; LA Group (Pty) Ltd v Stable Brands (Pty) Ltd 2022 (4) SA 448 (SCA) (minority
judgment) at paragraph [29].
425 Titty’s Bar and Bottle Store (Pty) Ltd v ABC Garage (Pty) Ltd 1974 (4) SA 362 (T) at 368G.
426 Vaatz v Law Society of Namibia 1991 (3) SA 563 (Nm) at 566C–E; Tshabalala­Msimang v Makhanya [2008] 1 All SA 509 (W) at 516e­f; Breedenkamp v
Standard Bank of South Africa Ltd 2009 (5) SA 304 (GSJ) at 321C–E; Helen Suzman Foundation v President of the Republic of South Africa 2015 (2) SA 1 (CC) at
paragraph [28]; Scott v Scott 2021 (2) SA 274 (KZD) at paragraph [54]. See also Broode NO v Maposa 2018 (3) SA 129 (WCC) at 140A–C. In Gordhan v The
Public Protector [2021] 1 All SA 428 (GP) (a decision of the full court) the Public Protector contended that minister Gordhan, in his founding affidavit, described
her as corrupt, illiterate, rogue, incompetent, irrational, and unreasonable and unfit to occupy the position of Public Protector. She successfully applied for the
matter to be struck out as scandalous, vexatious and irrelevant (at paragraphs [265]–[269] and [305]).
427 Helen Suzman Foundation v President of the Republic of South Africa 2015 (2) SA 1 (CC) at paragraph [28], where it was also held that the test for relevance
is whether the evidence objected to is relevant to an issue in the litigation; Scott v Scott 2021 (2) SA 274 (KZD) at paragraph [54]. On the meaning of
‘irrelevant’, see further Meintjes v Wallachs Ltd 1913 TPD 278 at 285–8; Steyn v Schabort 1979 (1) SA 694 (O) at 698A; Vaatz v Law Society of Namibia 1991 (3)
SA 563 (Nm) at 566E; Beinash v Wixley 1997 (3) SA 721 (SCA) at 732A–734B; Swissborough Diamond Mines (Pty) Ltd v Government of the Republic of South
Africa 1999 (2) SA 279 (T) at 336J–337B; National Director of Public Prosecutions v Zuma 2009 (2) SA 277 (SCA) at 289F–G and 308A–B; Power Guarantees
(Pty) Ltd v Fusion Guarantees (Pty) Ltd (unreported, GJ case no A5015/2021 dated 6 May 2022 — a decision of the full court) at paragraph [19]; Ndebele v
Industrial Development Corporation of South Africa (unreported, GJ case no 21687/2021 dated 25 July 2023) at paragraph [68]. Matter which may be struck out
as irrelevant includes argumentative matter (SA Railways and Harbours v Hermanus Municipality 1931 CPD 184; John Craig (Pty) Ltd v Dupa Clothing Industries
(Pty) Ltd 1977 (3) SA 144 (T) at 148H); matter which is repetitive (Lotzoff v Connel 1968 (2) SA 127 (W) at 131H–132A); attacks on the credibility of an
© 2018 Juta and Company
opponent (Duchen(Pty) Ltd.1938 WLD 119; Morgendaal v Ferreira 1956 (4) SA 625 (T)
v Flax Downloaded : Friv Apr
at 628B; Jones John25Barr
2025 15:31:26
& Co GMT+0200
(Pty) Ltd 1967 (3) (South
SA 292Africa
(W) atStandard
296C); Time)
and inadmissible evidence (Swissborough Diamond Mines (Pty) Ltd v Government of the Republic of South Africa 1999 (2) SA 279 (T) at 336F–G; National
Director of Public Prosecutions v Zuma 2009 (2) SA 277 (SCA) at 289G).
 SA 563 (Nm) at 566E; Beinash v Wixley 1997 (3) SA 721 (SCA) at 732A–734B; Swissborough Diamond Mines (Pty) Ltd v Government of the Republic of South
Africa 1999 (2) SA 279 (T) at 336J–337B; National Director of Public Prosecutions v Zuma 2009 (2) SA 277 (SCA) at 289F–G and 308A–B; Power Guarantees
(Pty) Ltd v Fusion Guarantees (Pty) Ltd (unreported, GJ case no A5015/2021 dated 6 May 2022 — a decision of the full court) at paragraph [19]; Ndebele v
Industrial Development Corporation of South Africa (unreported, GJ case no 21687/2021 dated 25 July 2023) at paragraph [68]. Matter which may be struck out
as irrelevant includes argumentative matter (SA Railways and Harbours v Hermanus Municipality 1931 CPD 184; John Craig (Pty) Ltd v Dupa Clothing Industries
(Pty) Ltd 1977 (3) SA 144 (T) at 148H); matter which is repetitive (Lotzoff v Connel 1968 (2) SA 127 (W) at 131H–132A); attacks on the credibility of an
opponent (Duchen v Flax 1938 WLD 119; Morgendaal v Ferreira 1956 (4) SA 625 (T) at 628B; Jones v John Barr & Co (Pty) Ltd 1967 (3) SA 292 (W) at 296C);
and inadmissible evidence (Swissborough Diamond Mines (Pty) Ltd v Government of the Republic of South Africa 1999 (2) SA 279 (T) at 336F–G; National
Director of Public Prosecutions v Zuma 2009 (2) SA 277 (SCA) at 289G).
428 Titty’s Bar and Bottle Store (Pty) Ltd v ABC Garage (Pty) Ltd 1974 (4) SA 362 (T) at 368G; Tshabalala­Msimang v Makhanya [2008] 1 All SA 509 (W) at 516e;
Breedenkamp v Standard Bank of South Africa Ltd 2009 (5) SA 304 (GSJ) at 321B; LF v TF 2020 (2) SA 546 (GJ) at paragraph [25]. In Clairison’s CC v MEC for
Local Government, Environmental Affairs and Development Planning 2012 (3) SA 128 (WCC) the applicant delivered its founding papers and the second
respondent delivered a notice of its intention to abide by the court’s decision. Thereafter the first respondent delivered his answering affidavit and the applicant
its replying affidavit. Then the second respondent delivered an affidavit. The first respondent applied to strike it out on the ground that it supported the
applicant’s case. The first respondent asserted, inter alia, that the second respondent had chosen to abide and given notice of that, and it could not now, by
virtue of the doctrine of election, deliver an affidavit supporting the applicant. The court, in dismissing the application to strike out, held (at 129E–130A, 130I–
131D, 133F–I and 134E–F) that, as a party, the second respondent was entitled to set out its position on the main application and to explain it, and to abide by
the court’s decision.
429 Millward v Glaser 1950 (3) SA 547 (W).
430 Premier Produce Co v Mavros 1931 WLD 91; Cash Wholesalers Ltd v Cash Meat Wholesalers 1933 (1) PH A24; Jay’s Properties v Turgin 1950 (2) SA 694 (W);
Flange Engineering Co (Pty) Ltd v Elands Steel Mills (Pty) Ltd 1963 (2) SA 303 (W); Dublin v Diner 1964 (2) SA 304 (D); Wronsky v Prokureur­Generaal 1971 (3)
SA 292 (SWA); Parow Municipality v Joyce & McGregor (Pty) Ltd 1973 (1) SA 937 (C); Wiese v Joubert 1983 (4) SA 182 (O); Rail Commuter Action Group v
Transnet Ltd t/a Metrorail (No 1) 2003 (5) SA 518 (C) at 546E–547E; Broode NO v Maposa 2018 (3) SA 129 (WCC) at 140A–C; LF v TF 2020 (2) SA 546 (GJ) at
paragraph [26].
431 In Jeebhai v Minister of Home Affairs 2007 (4) SA 294 (T) at 306E–307H the court struck out matter, the publication whereof had been prohibited by a
previous court order. In addition the applicant, who deposed to the founding affidavit in which the matter appeared, his attorney and the attorney’s professional
assistant, all of whom had knowledge of the court order, were found guilty of contempt of court for having included the matter in the founding affidavit (at 309G–
312G).
432 Wiese v Joubert 1983 (4) SA 182 (O) at 196F–197E. See also Cyril Smiedt (Pty) Ltd v Lourens 1966 (1) SA 150 (O) at 152E–G. In Van Wyk v Protea
Assurance Co Ltd 1974 (3) SA 499 (SWA) inadmissible hearsay was struck out on formal notice of application to strike out.
433 Cultura 2000 v Government of the Republic of Namibia 1993 (2) SA 12 (Nm) at 27H; Madikizela v Public Protector; Mabuyane v Public Protector; Speaker:
Winnie Madikizela Mandela Local Municipality v Public Protector (unreported, ECB case nos 800/2021; 802/2021; 818/2021 dated 10 February 2023) at paragraph
[25]; Voight v Magistrate of Magistrates Court, East London (unreported, ECEL case no EL457/2023 dated 5 September 2024) at paragraph [47].
434 SA Railways and Harbours v Hermanus Municipality 1931 CPD 184; Parow Municipality v Joyce & McGregor (Pty) Ltd 1973 (1) SA 937 (C); Swissborough
Diamond Mines (Pty) Ltd v Government of the Republic of South Africa 1999 (2) SA 279 (T) at 337B.
435 Duchen v Flax 1938 WLD 119; and see Morgendaal v Ferreira 1956 (4) SA 625 (T) at 628; Jones v John Barr & Co (Pty) Ltd 1967 (3) SA 292 (W) at 296.
436 See, inter alia, Titty’s Bar and Bottle Store (Pty) Ltd v ABC Garage (Pty) Ltd 1974 (4) SA 362 (T) at 368H; John Craig (Pty) Ltd v Dupa Clothing Industries
(Pty) Ltd 1977 (3) SA 144 (T) at 148G; Pienaar v Thusano Foundation 1992 (2) SA 552 (B) at 577C; Rail Commuter Action Group v Transnet Ltd t/a Metrorail (No
1) 2003 (5) SA 518 (C) at 549D–553C.
437 Rail Commuter Action Group v Transnet Ltd t/a Metrorail (No 1) 2003 (5) SA 518 (C) at 589F–G.
438 Beinash v Wixley 1997 (3) SA 721 (SCA) at 733B; Securefin Ltd v KNA Insurance and Investment Brokers (Pty) Ltd [2001] 3 All SA 15 (T); Tshabalala­
Msimang v Makhanya [2008] 1 All SA 509 (W) at 516g–h; National Director of Public Prosecutions v Zuma 2009 (2) SA 277 (SCA) at 308B; Helen Suzman
Foundation v President of the Republic of South Africa 2015 (2) SA 1 (CC) at paragraph [27]; Gold Fields Ltd v Motley Rice LLC 2015 (4) SA 299 (GJ) at 325D–
328D; University of the Free State v Afriforum 2017 (4) SA 283 (SCA) at 296E (where the court, in footnote 22, incorrectly refers to rule 23(2) instead of rule
6(15)); South African Broadcasting Corporation SOC Ltd v South African Broadcasting Corporation Pension Fund 2019 (4) SA 608 (GJ) at 632C–D; Scott v
Scott 2021 (2) SA 274 (KZD) at paragraph [54]; Breukel v Department of Home Affairs 2023 (4) SA 583 (WCC) at paragraph [88]; Power Guarantees (Pty) Ltd v
Fusion Guarantees (Pty) Ltd (unreported, GJ case no A5015/2021 dated 6 May 2022 — a decision of the full court) at paragraph [20].
439 Anderson v Port Elizabeth Municipality 1954 (2) SA 299 (E) at 309B; Msunduzi Municipality v Natal Joint Municipal Pension/Provident Fund 2007 (1) SA 142
(N) at 150A–C.
440 Weber v Vermaak 1974 (3) SA 207 (O) at 216A–D; Steyn v Schabort 1979 (1) SA 694 (O) at 697F–H; Vaatz v Law Society of Namibia 1991 (3) SA 563
(Nm) at 566J–567A; Bekker v De Agrela (unreported, GJ case nos A5096/2019; 42125/2018 dated 25 November 2022) at paragraph [19].
441 Vaatz v Law Society of Namibia 1991 (3) SA 563 (Nm) at 567B.
442 Glencore Africa Oil Investments (Pty) Ltd v Ramano 2020 (3) SA 419 (GJ).

© 2018 Juta and Company (Pty) Ltd. Downloaded : Fri Apr 25 2025 15:31:26 GMT+0200 (South Africa Standard Time)