IN THE HIGH COURT OF SOUTH AFRICA

NORTH WEST DIVISION, MAHIKENG

CASE NO.: UM56/2019

In the urgent application between:

LINDI VAN WYK Applicant

and

NELIA BLACKMAN 1st Respondent

FLIP WESSELS 2nd Respondent

WILHELM ROCHER 3rd Respondent

A W BRITZ 4th Respondent

JUDGMENT

LAUBSCHER AJ

INTRODUCTION, RELEVANT BACKGROUND AND CHRONOLOGY

[1] This application was launched by the Applicant on an urgent basis

Reportable: YES/NO Circulate to Judges: YES/NO Circulate to Magistrates: YES/NO Circulate to Regional Magistrates: YES/NO

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and to be more exact on an extremely urgent basis. The

Application was issued by the Registrar on Saturday, 13 April

2019 and the application were set down to be heard on the same

Saturday at 16:00. The notice of motion which enrolled the

application for hearing, sets out the abridged timeframes and the

relief requested by the Applicant reads as follows:

“Take notice that the abovementioned Applicant intends to make

Application to the above honourable Court on 13 April 2019 at

16:00, or soon thereafter as counsel may be heard, for an order in

the following terms:

1. That this matter be treated as one of urgency and that for

the purpose thereof condonation is granted for the non-

compliances with the normal rule of Court with regard to

service, form and time-periods as contemplated in rule

6(12);

2. The Respondents be ordered to, upon the service of the

order by e – mail and WhatsApp on them, forthwith and at

their own cost, return to Mosita Wildlife, farm Faith,

Setlagole, North West Province, all the Brahman cattle

which were unlawfully removed from the said farm ;

3. That the First Respondent pay the costs of this application

on a scale as between Attorney and Own Client, jointly and

severally with any other Respondent who opposes this

application ; and

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4. further and/or alternative relief.

….

Take notice further that if you intend opposing this application, you

are required to:

(a) Notify the Applicant’s Attorneys, in writing, of your intention

to do so, within 2 hours from date of service of this

Application upon you by e-mail to waltern@mweb.co.za;

and

(b) Simultaneously with the filing of your Intention to

Defend this application, file your answering affidavit, if

any; and

(c) To appoint, in such notification, an address at which you will

accept notice and service of all documents in these

proceedings.

Kindly enrol the matter accordingly.” (Court’s emphasis)

[2] On Saturday, 13 April 2019 at 16:00, Moagi AJ heard this urgent

application. At this hearing Me Mongale appeared on behalf of the

Applicant and Me Britz appeared on behalf of the Respondents.

The following order was, by agreement between the parties,

made an order of Court:

“IT IS ORDERED (by agreement)

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THAT: the matter is postponed to 17/04/2019 for argument at

14:00 hrs;

THAT: the first Respondent to file her answering affidavit

including her counter spoliation application on Tuesday

the 16th April 2019, by 10:00;

THAT: the Applicant to file her replying affidavit, if any, and

answering affidavit to the counter spoliation application if

any on 16 April 2019 by 17:00;

THAT: the second Respondent’s properties inter alia horses and

mobile equipment to remove cattle to be released under

supervision by 09:00 on 14/04/2019;

THAT: the parties agree that the status quo before launching of

this application will remain in force until the matter is

heard on Wednesday 17 April 2019 by this Honourable

Court;

THAT: neither of the parties will dispose of any property pending

the hearing of this matter as stated above in prayer 5;

THAT: the first Respondent and the Applicant are ordered not to

remove any cattle from Mosita Wildlife, farm Faith,

Setlagole in North West and from farm Doornkraal, Groot

Marico, North West; and

THAT: Costs are reserved.”

[3] The matter was then allocated to this Court and on Wednesday,

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17 April 2019 at 11:00 and thus three days after the application

was first heard by Moagi AJ, the following documents were

contained in the court file which was at that time provided to this

Court: the notice of motion, the founding affidavit, a handwritten

document setting out the terms of the order quoted in the

preceding paragraph, the Court Order made by Moagi AJ and the

First Respondent’s answering affidavit. The court file was at that

time not indexed or paginated.

[4] On the same day at 14:00 this matter was called to be heard by

this Court. At this hearing Me Mongale again appeared on behalf

of the Applicant and Me Britz again appeared on behalf of the

Respondents. Me Mongale addressed this Court and requested

that the application be postponed to the following day. The reason

for the postponement, so it was argued, was the fact that the First

Respondent only filed the answering affidavit on Tuesday 16 April

2019 at 15:30 and not at 10:00 as provided for in the order made

by Moagi AJ. Therefore, so the argument on behalf of the

Applicant went, the Applicant could not file her replying affidavit at

the time allotted in the order, i.e. at 17:00 on Tuesday, 16 April

2019. The Applicant also argued that the First Respondent must

bring an application for condonation for the late filing of the

answering affidavit.

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[5] Me Britz opposed the application for postponement and presented

the following timeline of events and facts to this Court:

5.1 the answering affidavit was prepared and finalised and was

sent through to Mahikeng at 9:20 on Tuesday 16 April 2019

for the filing thereof but as a result of a logistical issue in the

office of the First Respondent’s correspondent attorney’s

office the answering affidavit was in fact only filed on

Tuesday, 16 April 2019 at 15:30. Receipt of the answering

affidavit was confirmed by the Applicant’s attorneys;

5.2 during the morning of 17 April 2019 at 8:40 the Applicant’s

attorney confirmed to the First Respondent’s attorney that

they are working on the replying papers and dealing with the

matter. At 9:20 the Applicant’s attorney confirmed to the

First Respondent’s counsel that the replying affidavit is ready

and will be filed imminently, whereupon the Applicant’s

counsel requested that a hard copy of the replying affidavit

be readied by the Applicant’s correspondent attorney’s office

and be provided to the First Respondent’s counsel, who in

turn will see to the indexing and pagination of the court file

during the morning of the 17th to have the application ready

for hearing at 14:00;

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5.3 when the First Respondent’s attorney and counsel arrived in

Mahikeng they went to the office of the Applicant’s

correspondent attorney’s who informed them that they are

awaiting the replying affidavit and when same arrives at their

offices they will inform the First Respondent’s attorney and

counsel accordingly;

5.4 no indication was given by the Applicant’s attorney to the

First Respondent’s attorney and counsel that the replying

affidavit will not be finalised or that, as a result of the late

delivery of the answering affidavit, the Applicant is of the

view that the matter cannot proceed at 14:00 on the 17th, in

fact, so it is argued on behalf of the First Respondent, the

Applicant’s attorney “stringed” the First Respondent along up

and until the hearing of the application at 14:00 without any

indication that the Applicant is not ready to proceed with the

hearing of the matter;

5.5 if the Applicant’s attorney indicated that they are not ready to

proceed with the application, as a result of the late filing of

the answering affidavit, then the First Respondent would not

have incurred the costs to be ready for arguing the matter at

14:00 on the 17th.

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[6] In reply, the Applicant’s counsel did not refute the aforementioned

facts and issues raised by Me Britz. This Court indicated to Me

Mongale that the order of Moagi AJ (which was made by

agreement between the parties) provided the period from 10:00 to

17:00 on 16 April 2019 to the Applicant to file her replying

affidavit. From 10:00 to 17:00 constitutes a period of 7 hours. If

the answering affidavit was filed on 16 April 2019 at 15:30, then

the Applicant had more than 7 business hours between 15:30 on

16 April 2019 to 14:00 on 17 April 2019 to file her replying

affidavit. The issues of the court file not being indexed and

paginated was also raised by this Court with the Applicant.

[7] This Court then mero moto adjourned the application to 15:15 on

the 17th of April 2019 to allow a further opportunity to the

Applicant to finalise and file the replying affidavit and to attend to

the indexing and pagination of the court file.

[8] When the proceedings resumed at 15:15 on 17 April 2019, the

court file was indexed and paginated, but the Applicant’s replying

affidavit was still not forthcoming. This Court was then informed by

the Applicant’s counsel that Applicant was not able to proceed with

the hearing of the application. However, and instead of persisting

with the application for a postponement, as initially launched by the

Applicant, the Applicant’s counsel informed this Court that the

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Applicant is not “…in a position…” to file the replying affidavit and

proceeded to request this Court to “remove” the application from

the urgent roll in order for the matter to be “…properly

adjudicated…when the papers are in order…and when the

Applicant shall have been afforded the opportunity to indicate as to

why the matter has to be reinstated…”. The Applicant did not

request that the Court order granted by Moagi AJ on 13 April 2019

be extended. Upon the issue of costs, should the matter be

“removed” from the urgent roll, the Applicant argued that each

party should pay its own costs.

[9] This Court also requested the Applicant’s counsel to explain why

the Applicant is not in position to file the replying affidavit and

proceed with the matter. The reasons so advanced on behalf of

the Applicant were threefold: (a) the answering affidavit was filed

late, (b) the answering affidavit is voluminous and contains various

issues which the Applicant must address and (c) the Applicant’s

attorney also had to “…drive more than 100 kilometres…” to attend

to procure the signing of a “confirmatory affidavit”, which was

referred to in the founding affidavit, by the deponent of the said

confirmatory affidavit. What “…took most of the time was the

driving…” to attend to the signing of this “confirmatory affidavit”

and as such there was not enough time to finalise the replying

affidavit.

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[10] The First Respondent’s counsel strenuously objected to the matter

being merely “removed” from the urgent roll. It was argued on

behalf of the First Respondent that the First Respondent is in the

process of selling the cattle (which forms the objects of the

spoliation dispute) and the mere removal of the matter from the roll

and thus the prolonging of the order to preserve the status quo as

expressed by the order of Maogi AJ, will severely prejudice the

First Respondent in dealing with the cattle. The First Respondent

was evidently under the impression that the “removal” of the

application from the urgent roll meant that the operation of the

Court order granted by Moagi AJ will be extended. However, and

as indicated above, the Applicant did not request an extension of

the operation of the said order should the matter be “removed”

from the roll. The First Respondent also argued that the Applicant

elected to launch this application on an urgent basis and as such

the Applicant must be ready to proceed with the matter on that

basis. As to the issue of the signing of the “confirmatory affidavit”

the First Respondent argued that the Applicant’s attorney had

more than ample time from Saturday 13 April 2019 to secure the

signing of this “confirmatory affidavit” and that the argument raised

on behalf of the Applicant that the efforts to secure the signing of

this “confirmatory affidavit” delayed the preparation of the replying

affidavit is no excuse for the fact that the replying affidavit is not

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forthcoming.

[11] Counsel for the First Respondent directed this Court’s attention to

certain averments made by the Applicant in the founding affidavit

and the manner in which the First Respondent address those

averments in the answering affidavit to indicate that the Applicant

has in any event not presented a clear right for the final spoliatory

relief which the Applicant is requesting. This Court was requested

on behalf of the First Respondent to dismiss the Applicant’s

application with costs on a punitive scale.

[12] In reply this Court afforded the Applicant’s counsel an opportunity

to address this Court on the request made on behalf of the First

Respondent to dismiss the application with costs on a punitive

scale. On behalf of the Applicant it was argued that the Applicant

has a right to reply to the contents of the answering affidavit. It

was reiterated by the Applicant’s counsel that the answering

affidavit is not properly before this Court because same was not

file at 10:00 on 16 April 2019 and no application was made for

condonation to allow for the late filing of the answering affidavit.

Counsel for the Applicant also argued that the Applicant made out

a case in the founding papers that the Applicant was in peaceful

and undisturbed possession of the cattle and was spoliated by the

Respondents. As such, this Court was requested on behalf of the

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Applicant to “remove” the matter from the urgent roll and not to

dismiss this application.

THE PROVISIONS OF RULE 6(12) AND THE CONDUCT OF THE

APPLICANT IN THIS URGENT APPLICATION

[13] As is evident from the contents of prayer 1 of the Applicant’s notice

of motion the Applicant requests that: “That this matter be treated

as one of urgency and that for the purpose thereof condonation is

granted for the non-compliances with the normal rule of Court with

regard to service, form and time-periods as contemplated in rule

6(12)…”.

[14] The effect of Rule 6(12)(a) “…is that in urgent applications an

Applicant is allowed, depending on the circumstances of the

matter, to make his own rules, which should as far as

practicable accord with the normal rule of Court.”1 (Court’s

emphasis) Such an applicant must however at the hearing of the

matter request, motivate and obtain the relief as provided for in this

rule from the Court.2 This does not occur as a mere formality and

the discretion to extent the relief provided for in the rule rests with

1 Cilliers et al Herbstein & van Winsen The Civil Practice of the Superior

Courts of South Africa, Juta 5th ed at p 431-432.

2 See Kayamandi Town Committee v Mkhwaso 1991 (2) SA 630 (C).

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the presiding judge. Hence, the use of the word “may” as utilise in

the text of Rule 6(12).

[15] In the exercise of its discretion the Court should apply the

requirements set by Rule 6(12)(a) and (b) and apply same to the

facts before it.3

[16] In the matter of Caledon Street Restaurants CC v D’Aviera4 the

Court gave a detailed analysed of what was expected from an

applicant who is contending that the relief which it is seeking

should be extended on an urgent basis. This exposé by the Court

are opposite in this matter as well and in fact, in all matters where

urgency is claimed by an applicant. The following was stated: “In

the assessment of the validity of a respondent's objection to the

procedure adopted by the Applicant the following principles are

applicable. It is incumbent on the Applicant to persuade the

court that the non-compliance with the rules and the extent

thereof were justified on the grounds of urgency. The intent of

the rules is that a modification thereof by the Applicant is

permissible only in the respects and to the extent that is necessary

in the circumstances. The Applicant will have to demonstrate

3 Cilliers et al supra at page 73, Van Loggerenberg Erasmus supra at D1-

87 and Harms supra at B-74.

4 1998 JOL 1832 (SE) at pages 7 – 9.

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sufficient real loss or damage were he to be compelled to rely

solely or substantially on the normal procedure. The court is

enjoined by rule 6(12) to dispose of an urgent matter by

procedures ‘which shall as far as practicable be in terms of these

rules’. That obligation must of necessity be discharged by

way of the exercise of a judicial discretion as to the attitude of

the court concerning which deviations it will tolerate in a

specific case. Practitioners must accordingly again be

reminded that the phrase ’which shall as far as practicable be

in terms of these rules’ must not be treated as pro non

scripto. The mere existence of some urgency cannot therefore

necessarily justify an Applicant not using Form 2 (a) of the First

Schedule to the rules. If a deviation is to be permitted, the extent

thereof will depend on the circumstances of the case. The

principle remains operative even if what the Applicant is seeking in

the first instance, is merely a rule nisi without interim relief. A

respondent is entitled to resist even the grant of such relief. The

Applicant, or more accurately, his legal advisors must

carefully analyse the facts of each case to determine whether

a greater or lesser degree of relaxation of the rules and the

ordinary practice of the court is merited and must in all

respects responsibly strike a balance between the duty to

obey rule 6(5)(a) and the entitlement to deviate therefrom,

bearing in mind that that entitlement and the extent thereof,

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are dependent upon, and are thus limited by the urgency

which prevails. The degree of relaxation of the rules should

not be greater than the exigencies of the case demand (and it

need hardly be added these exigencies must appear from the

papers). On the practical level it will follow that there must be a

marked degree of urgency before it is justifiable not to use Form

2(a). It may be that the time elements involved or other

circumstances justify dispensing with all prior notice to the

respondent. In such a case Form 2 will suffice. Subject to that

exception it appears that all requirements of urgency can be met

by using Form 2(a) with shortened time periods or by another

adaptation of the form, e.g. advanced nomination of a date for the

hearing of the matter, or omitting notice to the registrar

accompanied by changed wording where necessary. Adjustment,

not abandonment of Form 2(a) is the method.” (Court’s emphasis)

[17] The inappropriate application and use of the provisions of Rule

6(12) has in the past been labelled as an “abuse of the court

process”. In the matter of Vena and Another v Vena and Others5

Jones J stated the following: “My finding was that the Applicant’s

allegations did not comply with rule 6(12)(b) which requires him to

set out explicitly the circumstances rendering the matter urgent

and also the reasons why he will not be afforded substantial

5 2010 (2) SA 248 (ECP) at par [5].

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redress at a hearing in the ordinary course. He gave no reasons

at all why he could not get substantial redress at a hearing in due

course. The circumstances allegedly giving rise to the commercial

urgency upon which he relied were the reverse of being explicit.

Instead, they were set out in vague, incomplete, and insubstantial

terms and did not seem to me to have bearing on the relief sought

in the notice of motion or the issues in dispute, other than that the

divorce between the parties was disruptive of the business of the

service station. The grounds of urgency alleged certainly did not

justify giving the respondents two court days within which to give

notice of an intention to oppose and to file opposing affidavits. A

postponement was inevitable and was granted. The

1strespondent filed her opposition as soon as reasonably

possible, on 12 December 2008. The Applicant’s replying

affidavit was not filed until 8 January 2009. He gave no

explanation for his delay and one is therefore left in doubt

about the bona fides of his case for urgency. The urgency

appears to have completely disappeared. In consequence, I

find myself echoing the remarks of Kroon J at page 21 of the

judgment in Caledon Street Restaurants CC that ‘in my

judgment, therefore, the use that the Applicant made of the

procedure relating to matters of urgency was a misuse,

indeed an abuse, of the process of the court. On that ground

alone I find that the Applicant should be non-suited’.” (Court’s

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emphasis)

[18] In practise the “abuse” of the court process by an inappropriate

application and use of the provisions of Rule 6(12) not only has an

effect on the parties to the litigation and the Court concerned, but

also on the other litigants. This fact was alluded to in the matter of

National Ship Chandlers (Natal) 1989 (Pty) Ltd v Ellis and Another6

wherein the Court stated the following: “When an Applicant insists

on dealing with a matter on an urgent basis there is not only

inconvenience to the respondent, but to the court as well as

litigants and practitioners making demands on its time and

resources. Other litigants (and their representatives) waiting for

their matters to receive attention are also compromised by the

queue being jumped as it were by a litigant making their subjective

emergency everyone else’s concern.” The effect referred to in this

matter, resulting from an abuse of the court process is also

referred to as “jumping the “litigation queue”.

[19] The same sentiment was expressed in the matter of IL & B

Marcow Caterers (Pty) Ltd v Greatermans SA Ltd and Another;

Aroma Inn (Pty) Ltd v Hypermarkets (Pty) Ltd and Another7

wherein it was held at 113 E – 114 B that: “Other litigants

6 (542/2018) [2018] ZAECELLC 6 (6 April 2018) at paragraph [35].

7 1981 (4) SA 108 (C).

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waiting for their matters to be heard would be prejudiced if

priority were afforded to these applications as they would

have to wait longer. And what distinguishes these two

applications from other matters? Applications for review

such as these occur commonly and are not given priority.

The prejudice that Applicants are complaining about is the

possibility that they may suffer losses of profits – the losses, if any,

sound in money. Assuming that such losses are irrecoverable,

that still does not distinguish these matters from many others

awaiting their turn on the ordinary roll. Take for example all the

cases wherein general damages are claimed in delict including

actions instituted under the Compulsory Motor Vehicle Insurance

Act 56 of 1972. Interest is not claimable on the amount awarded

and litigants suffer financially by delay in the adjudication of their

matters. Moreover, the fact that a litigant with a claim

sounding in money may suffer serious financial

consequences by having to wait his turn for the hearing of his

claim does not entitle him to preferential treatment. On the

other hand, where a person’s personal safety or liberty is involved

or where a young child is likely to suffer physical or psychological

harm, the Court will be far more amenable to dispensing with the

requirements of the Rules and disposing of the matter with such

expedition as the situation warrants. The reason for this

differential treatment is that the Courts are there to serve the public

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and this service is likely to be seriously disrupted if considerations

such as those advanced by the Applicants in these two matters

were allowed to dictate the priority they should receive on the roll.

It is, in the nature of things, impossible for all matters to be dealt

with as soon as they are ripe for hearing. Considerations of

fairness require litigants to wait their turn for the hearing of

their matters. To interpose at the top of the queue a matter

which does not warrant such treatment automatically results

in an additional delay in the hearing of others awaiting their

turn, which is both prejudicial and unfair to them. The loss

that Applicants might suffer by not being afforded an

immediate hearing is not the kind of loss that justifies the

disruption of the roll and the resultant prejudice to other

members of the litigating public.” (Court’s emphasis)

[20] In the matter of Ledimo and Others v Minister of Safety & Security

and Another8 Rampai J, before dismissing the application before

him for a lack of urgency and after referring to inter alia the

principles laid down as quoted above in the matter of IL & B

Marcow Caterers (Pty) Ltd v Greatermans SA Ltd and Another;

Aroma Inn (Pty) Ltd v Hypermarkets (Pty) Ltd and Another, stated

the following: “[32] In the three cases I have quoted above the

8 (2242/2003) [2003] ZAFSHC 16 (28 August 2003) at paragraph 32 et

seq.

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courts have held that the mere fact that irreparable financial losses

have been suffered or would be suffered by the applicant was not,

by itself, sufficient ground to ground the requisite urgency

necessary to justify a departure from the ordinary court rules. In

applying this principle, a judge will do well to keep the words of

wisdom which were expressed through the lips of Kroon J on p 15

in CALEDON STREET RESTAURANTS CC (supra).9 I find it

apposite to echo those sentiments here by quoting him verbatim:

‘However, the following comments fall to be made. First, to the

extent that these cases may be interpreted as laying down that

financial exigencies cannot be invoked to lay a basis for urgency, I

consider that no general rule to that effect can be laid down. Much

would depend on the nature of such exigencies and the extent to

which they weigh up against other considerations such as the

interests of the other party and its lawyers and any inconvenience

occasioned to the court by having to entertain an application on an

urgent basis. Second, whatever the extent of the indulgence, the

sanction of the court thereof that an application be heard as a

matter of urgency, would not in general, in this Division, accord the

matter precedence over other matters and result in the disposal of

the latter being prejudiced by being delayed.’ “

[21] What is clear from the above referred to authorities and the well-

9 Caledon Street Restaurants CC v D’Aviera supra.

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established principles in the application of Rule 6(12), is that it is

incumbent upon an applicant, when embarking upon the launching

of an application on an urgent basis to satisfy the Court that the

deviations which the Court are requested to make to the rules of

Court are justifiable under the circumstances of the case. This

principle applies to the different timeframes and actions involved in

the application process, as well as to the manner in which the

litigation is conducted by an applicant in the application as a

whole. Therefore, the conduct of an applicant in the application

litigation in its entirety, must be commensurate to the urgency

which such an applicant elected to afford to the application. If not,

the actions of an applicant amount to an abuse of the process

allowed for in Rule 6(12). This is the test that this Court must

apply to the conduct of the Applicant in this application.

[22] In instances where an abuse of process occurs the Court is at

liberty to dismiss the application. In Nelson Mandela Metropolitan

Municipality v Greyvenouw CC10 the Court stated: “It is also true

that when courts are enjoined by rule 6(12) to deal with urgent

applications in accordance with procedures that follow the rules as

far as possible, this involves the exercise of a judicial discretion by

10 (3263/02) [2003] ZAECHC 5 (21 February 2003) at paragraph 37 to 39

also see Makhubu Civils CC v Icon Construction Pty (Ltd) and Others

(4866/2014) [2015] ZAFSHC 14 (29 January 2015).

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a court concerning which deviations it will tolerate in a specific

case. [38] Secondly, it is not in every case in which the

applicant may have departed from the rules to an unwarranted

extent that the appropriate remedy is the dismissal of the

application. Each case depends on its special facts and

circumstances. This is implicitly recognised by Kroon J in the

Caledon Street Restaurants CC case when he held “…looking

at the issue from the other perspective, as it were…“ that the

approach should rather be that there are times where, by way

of non-suiting an applicant, the point must clearly be made

that the rules should be obeyed and that the interest of the

other party and his lawyers should be accorded proper

respect, and the matter must be looked at to consider whether

the case is such a time or not. [39] Thirdly, the ratio of the

decision in Caledon Street Restaurants CC was not that the

application fell to be dismissed because the applicant had not

attempted to comply more fully with form 2(a) of Schedule 1 to the

rules but rather that the applicant had misconceived the

urgency of the matter to the extent that Kroon J held that the

use that the applicant made of the procedure relating to

matters of urgency, was a misuse, indeed an abuse, of the

process of the court and it was on this basis that the learned

judge concluded that the application was to be dismissed.”

(Court’s emphasis and footnotes omitted)

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[23] As referred to above and subsequent to the Applicant launching

this application on an extremely urgent basis, the Applicant was on

17 April 2019 not able to proceed with the application because, so

it was contended on behalf of the Applicant, the Applicant was not

ready with the filing of her replying affidavit. The reasons

advanced as to why the Applicant was not ready to file the replying

affidavit are the following:

23.1 firstly, the answering affidavit was filed at 15:30 on 16

April 2019 instead of at 10:00, as per the order made by

Moagi AJ, as a result of this late filing of the answering

affidavit the replying affidavit could not be filed prior to

14:00 on 17 April 2019 when the application was heard

by this Court;

23.2 secondly, the Applicant’s attorney was attending to the

signing of a “confirmatory affidavit” referred to in the

Applicant’s founding affidavit and that the traveling

involved in dealing with this matter took up a lot of time;

23.3 thirdly, the answering affidavit of the First Respondent is

voluminous and a number of issues which require reply

are contained therein.

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[24] As to the merits of the aforementioned reasons:

24.1 Regarding the first reason:

(a) the Applicant, by agreement, allowed herself 7

hours (the time period between 10:00 and

17:00 on 16 April 2019) to file the replying

affidavit;

(b) allowing for the fact that the First Respondent

filed her answering affidavit only at 15:30 on 16

April 2019, the Applicant still had from 15:30 on

16 April 2019 until 14:00 on 17 April 2019

(more than 7 business hours and 22 normal

hours) to file her replying affidavit;

(c) what is concerning to this Court about the

behaviour of the Applicant in this regard is the

fact that the Applicant did not as soon as her

attorneys received the answering affidavit at

15:30 on 16 April 2019, or even during the

early morning on 17 April 2019, informed the

First Respondent that due to the lateness of the

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filing of the answering affidavit, the Applicant will

not be in a position to file her replying affidavit

and as such, the matter cannot proceed to a

hearing at 14:00. In fact, the First Respondent’s

version is that the Applicant strung the First

Respondent along until 14:00 on 17 April 2019

when the Applicant then applied for a

postponement and eventually to “remove” the

matter from the roll premised on inter alia the

lateness of the filing of the answering papers.

This manner of dealing with the litigation, in the

view of this Court, shows a clear degree of

malice on the part of the Applicant. If the

Applicant played open cards with the First

Respondent and timeously informed the First

Respondent that due to the lateness of the filing

of the answering affidavit the Applicant will not

be able to proceed with the hearing of the

application on the 17th, the outcome of this

application would have been vastly different for

the Applicant.

24.2 Regarding the second reason:

Page 26 of 40

(a) the “confirmatory affidavit” was referred to in the

Applicant’s founding affidavit and the First

Respondent’s argument that the Applicant’s

attorney had between Saturday 13 April 2019

when the Court order was made by Moagi AJ

until Tuesday at 15:30 when the answering

affidavit was filed, to secure the signing of the

“confirmatory affidavit”, is correct;

(b) the efforts made and the time it took the

Applicant’s attorney to procure the signing of

this “confirmatory affidavit” can, under the

circumstances and the extreme urgency of the

application, not be regarded as an excuse as to

why the replying affidavit could not be filed

before the hearing of the application at 14:00 on

17 April 2019.

24.3 Regarding the third reason:

(a) the answering affidavit comprise of 16 pages

and 72 paragraphs, each paragraph comprising

between one and six lines, most paragraphs

comprising between two to three lines. It is not

Page 27 of 40

inordinate voluminous and address the contents

of the founding affidavit in a direct and relevant

manner;

(b) the contents of the answering affidavit take

issue with the averments made by the Applicant

and advance averments, mostly supported by

documentary proof, as to inter alia why the

Applicant was not in peaceful and undisturbed

possession of the cattle when the Respondents

commenced to remove same from the farm

where the cattle was kept, which belonged to

one Keeley;

(c) having regard to the well establish principle that

a replying affidavit, in the ordinary course,

cannot be utilised to introduce new matter,

found or amend a cause of action, or make a

case where none was made in the founding

affidavit11 and should be succinct in addressing

11 Poseidon Ships Agencies (Pty) Ltd v African Coaling & Exporting Co

(Durban) (Pty) Ltd 1980 (1) SA 313 (D) at 316A, Triomf Kunsmis

(Edms) Bpk v AECI Bpk 1984 (2) SA 261 (W), Johannesburg City

Council v Bruma Thirty-Two (Pty) Ltd 1984 (4) SA 87 (T), Governing

Body of the Winterberg Agricultural High School v Premier of the

Page 28 of 40

only matter requiring a reply,12 it is difficult to

comprehend what the delay on the part of the

Applicant could have been in the preparation of

the replying affidavit in casu;

(d) the death knell for the Applicant’s argument that

the application cannot proceed due to the

unavailability of the replying affidavit comes by

way of the Applicant’s own words: The

Eastern Cape [1996] 3 All SA 71 (E), SA Heritage Resources Agency v

Arniston Hotel Property (Pty) Ltd 2007 (2) SA 461 (C) at par 29 and

Aeroquip SA v Gross and Others [2009] 3 All SA 264 (GNP) as well as

Harms Civil Procedure in the Superior Courts Butterworths at B6.37 and

Van Loggerenberg Erasmus Superior Court Practice 2nd Edition Juta at

D1-65 to D1-66.

12 In Harms supra at B6.37 it is stated that: “…a replying affidavit should

remain short and to the point and court should curtail their length by

making adverse cost orders.” See Minister of Environmental Affairs and

Tourism v Phambili Fisheries (Pty) Ltd [2003] 2 All SA 616 (SCA) at par

80 wherein the following was stated: “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.” Also see Van Zyl v Government of the Republic of

South Africa 2008 (3) SA 294 (SCA) at 307 G-H and Van Loggerenberg

supra at D1-67.

Page 29 of 40

Applicant states in paragraph 8.10 of the

founding affidavit: ”It is important to point out

that this is not a lengthy and complicated

application. It will be easy for the

Respondents to respond thereto in a short

space of time. In any event, these time

periods have been brought upon themselves

by the Respondents and their unlawful and

illegal actions. They should have known,

where he unlawfully takes something that they

have no right to take, there will be

consequences and that they may be swift.

The Respondents were aware of the dispute

between the shareholders and that I did not

consent to such removal.” (Court’s emphasis)

Surely, the same reasoning must apply visa

versa.

[25] The reasons advanced by the Applicant as to why the Applicant

did not file the replying affidavit and as such why the application

could not proceed on 17 April 2018, is without merit and the

manner in which the Applicant conducted the litigation in this

application constitutes, in the view of this Court, an abuse of the

court process. More so, if one considers the fact that the Applicant

Page 30 of 40

did not forewarn and alert the First Respondent’s attorney and

counsel, on the evening of 16 April 2019 or even the morning of

17 April 2019, that the Applicant is not of the intention to proceed

with the hearing of the application at 14:00.

[26] The Applicant in bringing the application on an urgent basis

accepted the peril, or potential peril, that she must sustain the

litigation on this urgent basis, otherwise the urgency of the matter

dissipates. By applying to this Court to merely “remove” the

application from the urgent roll so that same can be re-enrolled at

a later date (being an undetermined date on the normal opposed

roll) when the replying affidavit was forthcoming, means that on the

Applicant’s own version, the urgency of this application has in

effect been abandoned by the Applicant and same dissipated. In

turn and as a result, the Applicant is not entitled to the departure

from the normal Rules of Court as envisaged in terms of the

provisions of Rule 6(12). Under the circumstances, there was a

number of suitable alternative options to the Applicant’s avail

which had the potential of preserving the urgency of the

application. These options were not availed by the Applicant and

the Applicant elected to apply to have the application “removed”

from the roll.

Page 31 of 40

[27] Having regard to: (a) the conduct of the Applicant in this urgent

application, (b) the nature of the relief requested by the Applicant,

(c) the effect which would result if the matter be merely “removed”

(or struck) from the roll,13 (d) the prejudice to be occasioned to the

First Respondent should the application merely be “removed” from

the urgent roll vis-à-vis any prejudice to the Applicant (who has a

claim for damages against the First Respondent, if the Applicant’s

version of events to the effect that she is a shareholder in the

company which owns the cattle are correct) and (e) the interest of

justice, this Court is of the view that this application must be

dismissed and a punitive cost order14 must be granted against the

13 In this regard there was two options to the avail of this Court if this

Court was inclined to grant the application that the application be

“removed” from the roll: (a) if this Court ordered that the Court order

granted by Moagi AJ remained in operation and the status quo ante

as at 13 November 2019 remained until the matter is re-enrolled on the

normal opposed motion roll, then (in the view of this Court) the

prejudice to the First Respondent would have outweighed any prejudice

occasioned to the Applicant for the reasons stated in paragraph [10] of

this judgement and the fact the Applicant will have a claim for damages;

OR (b) if this Court did not order that the Court order by Moagi AJ

remain in operation (because the Applicant did not request to sustain

its operation) then the “removal” of the application from the roll would

have rendered the application moot and academic, because the First

Respondent would proceed to remove the remainder of the cattle and

sell same.

14 See paragraph 24.1(c) above as to the conduct of the Applicant which

weighed heavily in the mind of this Court in the granting of this special

order as to costs. Cilliers The Law of Costs LexisNexis at paragraph

Page 32 of 40

Applicant in favour of the First Respondent. The conduct of the

Applicant in this application clearly warrants a punitive cost order.

THE SPOLIATION REQUIREMENTS

[28] An additional and separate reason why the Applicant’s application

stands to be dismissed, which is wholly independent from the

above referred to reasons of this Court, as set out in the preceding

paragraphs, is the fact that the Applicant on her own version fails

to establish the requirements for the spoliatory relief which she is

requesting in prayer 2 of the notice of motion.

[29] It is trite that in an application relying on the mandament van spolie

to reclaim and restore possession of an object, an applicant must

4.09.states the following regarding “attorney and client” costs: “The

ordinary rule is that the successful party is awarded costs as between

party and party. An award of attorney and client costs is not lightly

granted by the court: the court leans against awarding attorney

and client costs, and will grant such costs only on “rare”

occasions. It is clear that normally the court does not order a litigant to

pay the costs of another litigant on the basis of attorney and client

unless some special grounds are present. An award of attorney and

client costs is granted by reason of some special considerations

arising either from the circumstances which gave rise to the

action, or from the conduct of the losing party.” (Court’s emphasis)

Page 33 of 40

proof peaceful and undisturbed possession of the object in

question.15

[30] In the founding affidavit the Applicant states the following:

30.1 In paragraph 1.1: “I am an adult businesswoman married

out of community of property, currently residing at Farm

Doornkraal, District Groot Marico, North West

Province.” (Court’s own emphasis)

30.2 In paragraph 4: “This is a spoliation application. The

purpose of this application is to obtain an order that the

Respondents return to the cattle which the Respondents

removed unlawfully from the premises on which they

were placed on the instruction of my husband and

appointed manager of Ochre Shimmer Trade and

Invest 95 (Pty) Ltd (Ochre). The cattle were under my

control and in my free and undisturbed possession.”

(Court’s emphasis)

15 Zulu v Minister of Works, KwaZulu 1992 1 All SA 45 (D), Marais v

Engler Earthworks (Pty) Ltd 1998 (2) SA 450 (E), Du Plessis v Du

Plessis 2012 JOL 28682 (ECP) and Harms Amler’s Precedents of

Pleadings, LexisNexis, 9th ed at 340 to 341.

Page 34 of 40

30.3 In paragraph 6.1: “The instruction to place the cattle on

the farm was given by me and I have always exercised

the control over the cattle through my husband

directly to the owner of the farm I therefor submit that I

am in control of the cattle and that I am in peaceful and

undisturbed possession of the cattle. To remove such

cattle in the manner the First Respondent did with the

assistance of the other Respondents and the fact that she

gained access to the farm on a deceitful manner the

owner of the farm left and then bringing transport trucks

onto the farm to remove the cattle without authorisation

and taking the law into her own hands.” (Court’s

emphasis)

30.4 In paragraph 7.1: “It come to my attention on the 12th of

April 2019 at approximately 19:20 that approximately 60

head of Brahman cattle worth more than R 900,000.00

was unlawfully, without my knowledge and consent

removed from the farm. This was conveyed to Derik

by the farm owner. Due to the urgency of the matter I

am unable to annex a confirmatory affidavit from the

owner. I respectfully request this honourable court to

condone the inability to obtain the confirmatory affidavit

timeously and to accept the evidence in terms of section 3

Page 35 of 40

of the Law of Evidence Amendment Act as it is in the

interest of justice.” (Court’s emphasis)

30.5 In paragraph 7.3: “The Respondents entered the farm on

the false premise to inspect the cattle. When the farm

owner left the First Respondent brought the trucks

onto the farm. The Respondent’s convinced the farm

workers of the owner that they were authorised to load

the cattle on the truck and to remove the cattle from the

farm premises. The farm workers were unaware that such

consent was not provided to the Respondents.” (Court’s

own emphasis)

30.6 In paragraph 7.6: “The cattle were placed on the farm

by the farm manager of Ochre Shimmer and whilst the

shareholding and ownership of the cattle is in dispute the

status quo should be kept. First Respondent has been

residing abroad for the last two years and in any event

knows nothing about farming. The First Respondent I

simply attempting to sell the assets of Ochre Shimmer to

assist in her own cash-flow issues whilst destroying the

business of Ochre Shimmer. This happened whilst there

is a dispute relating to the shareholder. The First

Respondent cannot simply take the law into her own

Page 36 of 40

hands and remove assets under false pretences.” (Court’s

emphasis)

[31] Apart from a number of repetitive averments by the Applicant to the effect

that the “…cattle were under my control and in my free and undisturbed

possession…” the following contradictions to these averments are evident

from the founding affidavit:

31.1 the Applicant is not residing on the farm where the cattle were

being kept;

31.2 the cattle were being kept on a farm with a different “owner” and

“farm workers of the owner”, who were in control of the farm and

the cattle being kept on the farm to the extent that they (and not

the Applicant) had to grant the Respondents access to the said

farm in order to remove the cattle from the farm. The permission

or acknowledgement of the Applicant before such access were

granted were not obtained by the “farm owner”;

31.3 the cattle were placed on the above referred to farm: (a) “…on the

instruction of my husband and appointed manager of Ochre

Shimmer Trade and Invest 95 (Pty) Ltd (Ochre)…” (b) “…by the

farm manager of Ochre Shimmer…”, i.e. the Applicant’s husband;

Page 37 of 40

31.4 the Applicant exercised “control” over the cattle “…through my

husband directly to the owner of the farm…”;

31.5 the removal of the cattle from the farm by the Respondents was

reported not to the Applicant, but to the Applicant’s husband by

the owner of the farm where the cattle were being kept;

31.6 there is no other, or further averments made in the founding

affidavit as to the manner in which the Applicant exercised the

averred possession and control over the cattle, except for those

stated in paragraph [29] above from which the conclusions in the

preceding paragraphs were evident.

[32] From the contents of the founding affidavit it is clearly evident that the

cattle were in possession and control of the person who owns the farm on

which the cattle were kept. At best for the Applicant, her husband, being

the “…the farm manager of Ochre Shimmer…” who placed the cattle on

the farm (of Keeley) and who acted as a farm manager and to whom the

removal of the cattle was reported, may claim to have a degree of control

and possession over the cattle.

[33] On the Applicant’s own version, as set out in the founding affidavit, it was

not proven that she was in peaceful and undisturbed possession of the

Page 38 of 40

cattle and as such the Applicant did not establish the requirement for final

relief premised on the mandament van spolie.

[34] The above referred to facts only add the proverbial “insult to injury” and as

this Court has already stated, this application stands to be dismissed solely

on the premise as set out in paragraph [1] to [27] above.

[35] In the premise, it is not necessary for this Court to deal with the contents of

the answering affidavit and the argument conducted on behalf of the

Applicant that the First Respondent was required to bring an application for

condonation for the late filing (15:30 instead of 10:00) of the answering

affidavit. It must however be stated that under the circumstances, as inter

alia set out in paragraph 5.1 above, and having regard to the fact that this

application was launched on an urgent basis, the late filing of both the

answering affidavit and the replying affidavit (if it was ready to be filed prior

to the hearing of the application at 14:00) can be condoned. For the

reasons stated above it is not necessary to deal with the contents of the

answering affidavit.

ORDER

[36] Therefore and having considered the facts in this matter, the

submissions made on behalf of the parties and the prevailing and

applicable legal framework, the following order is made:

Page 39 of 40

“The Applicant’s application is dismissed with costs on a

scale as between attorney and client.”

_____________________________

N. G. LAUBSCHER

ACTING JUDGE OF THE HIGH COURT

NORTH WEST DIVISION

Page 40 of 40

APPEARANCES

DATE OF HEARING: 17 APRIL 2019

DATE OF JUDGMENT: 16 MAY 2019

COUNSEL FOR APPLICANT: ADV MONGALE

COUNSEL FOR RESPONDENTS: ADV BRITZ

ATTORNEYS FOR APPLICANT: MOKHETLE ATTORNEYS

ATTORNEYS FOR RESPONDENTS: HANNATJIE VAN DER MERWE

ATTORNEYS