Rogal Holdings (Pty) Ltd and Others v Naidoo and Others (2023/066197) [2025] ZAGPPHC 695 (7 July 2025)

SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

HELD AT PRETORIA

CASE NO: 2023/066197

DOH: 20 June 2025

DECIDED: 07 July 2025

1) REPORTABLE: NO

2) OF INTEREST TO OTHER JUDGES: NO

3) REVISED.

07 July 2025

In the matter between:

ROGAL HOLDINGS (Pty) Ltd

First Applicant

(Registration Number: 2014/240061/07)

EIFEL PROPERTY (Pty) Ltd (Registration Second Applicant

Number: 1999/008408/07)

MFUNDO CLEMENT NKUHLU

Third Applicant

ERICA NTOMBEKHAYA NKUHLU

Fourth Applicant

and

MOGANAM NAIDOO

First Respondent

(Identity Number: 5[…])

KESAVAN VERAPPEN NAIDOO

Second Respondent

MATHEW SAMUEL DREYER

Third Respondent

(Identity Number: 7[…])

RAMESHA NAIDOO DREYER

Fourth Respondent

(Identity Number: 8[…])

JERIFANOS MASHAMBA N.O.

Fifth Respondent

THE REGISTRAR OF DEEDS

Sixth Respondent

THE MASTER OF THE HIGH COURT

Seventh Respondent

PULENG FELICITY BODIBE N.O.

Eight Respondent

GONASAGREE GOVENDER N.O

Nineth Respondent

This judgment has been handed down remotely and shall be circulated to the parties by way of email / uploading on Caselines. The date of hand down shall be deemed to be 07 July 2025.

ORDER

1. The application for leave to appeal is dismissed.

JUDGMENT

BAM J

1. The First and Second Applicants apply for leave to appeal against the judgment and order of this court, of 12 February 2025, excluding paragraph 1 of the order. The applicants’ grounds are set out in their notice of application for leave to appeal, filed on 5 March 2025.

2. Legislative provision is made for applications for leave to appeal in Section 17 (1) of the Superior Courts Act[1]. The relevant parts of the provision read:

‘17 (1) Leave to appeal may only be given where the judge or judges concerned are of the opinion that—

(a)

(i) the appeal would have a reasonable prospect of success; or

(ii) there is some other compelling reason why the appeal should be heard, including conflicting judgments on the matter under consideration;’

3. It is trite that an applicant for leave to appeal ‘must satisfy the court that the appeal would have a reasonable prospect of success or that there is some other compelling reason why the appeal should be heard. If the court is unpersuaded of the prospects of success, it must still enquire whether there is a compelling reason to entertain the appeal. A compelling reason includes an important question of law or a discreet issue of public importance that will have an effect on future disputes. But here too, the merits remain vitally important and are often decisive.’ [2]

4. An applicant must ‘convince the court on proper grounds that there is a reasonable prospect or realistic chance of success on appeal. A mere possibility of success, an arguable case or one that is not hopeless, is not enough. There must be a sound, rational basis to conclude that there is a reasonable prospect of success on appeal.’[3]

Standard of appellate interference with a lower court’s exercise of its discretion

5. It is trite that an appellate court will not easily interfere with the exercise of a lower court’s exercise of its discretion unless it can be shown that the discretion was not exercised judiciously or it was exercised based on a wrong appreciation of the facts of the law, or where it can be shown that the court did not bring an unbiased mind. In respect of a discretion in a loose sense, even though a court of appeal may easily intervene, there may be policy and other considerations that militate against such interference. This position is encapsulated in the remarks of the court in Giddey NO v JC Barnard and Partners, where it was said that an appellate court will not consider.

‘whether the decision reached by the court of first instance was correct but will only interfere in limited circumstances; for example, if it is shown that the discretion has not been exercised judicially or has been exercised based on a wrong appreciation of the facts or wrong principles of law. Even where the discretion is not a discretion in the strict sense, there may still be considerations which would result in an appellate court only interfering in the exercise of such a discretion in the limited circumstances mentioned above.’[4]

6. The same reasoning was endorsed in Trencon Construction (Pty) Limited v Industrial Development Corporation of South Africa Limited and Another as may be seen from the extracts set out immediately below:

‘[83] In order to decipher the standard of interference that an appellate court is justified in applying, a distinction between two types of discretion emerged in our case law. That distinction is now deeply-rooted in the law governing the relationship between appeal courts and courts of first instance. Therefore, the proper approach on appeal is for an appellate court to ascertain whether the discretion exercised by the lower court was a discretion in the true sense or whether it was a discretion in the loose sense. The importance of the distinction is that either type of discretion will dictate the standard of interference that an appellate court must apply… .

[87] … An appellate court must heed the standard of interference applicable to either of the discretions. In the instance of a discretion in the loose sense, an appellate court is equally capable of determining the matter in the same manner as the court of first instance and can therefore substitute its own exercise of the discretion without first having to find that the court of first instance did not act judicially. However, even where a discretion in the loose sense is conferred on a lower court, an appellate court’s power to interfere may be curtailed by broader policy considerations.’ [5]

7. A decision to grant or refuse condonation for non-compliance whether with the rules or directions, requires a court to exercise its discretion. The test to be applied in reaching the decision is the interests of justice. The court will not apply one standard for non-compliance with its directions and a different one when confronted with non-compliance with the rules. Basson J, writing for a unanimous court in Steenkamp and Others v Edcon Limited, makes the point:

‘[26] …In Grootboom this Court held that— “[i]t is axiomatic that condoning a party's non-compliance with the rules of court or directions is an indulgence. The court seized with the matter has a discretion whether to grant condonation.”

[27] And that— “It is by now axiomatic that the granting or refusal of condonation is a matter of judicial discretion. It involves a value judgment by the court seized with a matter based on the facts of that particular case.’[6]

[31] The decision to grant condonation is either yes or no: there is no wide range of available options for the decision-maker as envisaged in Trencon. A court can either grant or deny the condonation. But the election of either option is equally permissible and is something that reasonable judges could disagree on. To grant condonation is an exercise of judicial discretion that is only fettered by being judicially explained…

[36] Granting condonation must be in the interests of justice. This Court in Grootboom set out the factors that must be considered in determining whether or not it is in the interests of justice to grant condonation:

“[T]he standard for considering an application for condonation is the interests of justice. However, the concept ‘interests of justice’ is so elastic that it is not capable of precise definition. As the two cases demonstrate, it includes: the nature of the relief sought; the extent and cause of the delay; the effect of the delay on the administration of justice and other litigants; the reasonableness of the explanation for the delay; the importance of the issue to be raised in the intended appeal; and the prospects of success. It is crucial to reiterate that both Brummer and Van Wyk emphasise that the ultimate determination of what is in the interests of justice must reflect due regard to all the relevant factors but it is not necessarily limited to those mentioned above.’

An appeal lies against the order and not the reasons

8. It is further trite that an appeal lies against an order and not the reasons, Neotel (Pty) Ltd v Telkom SOC & Others[7]. ‘Even if an applicant in an application for leave to appeal succeeds in convincing the Court that it erred in fact and / or in law, it must also show that the judgment (substantive order) would have been different if the Court applied the correct law or facts. The notice should therefore clearly specify what orders will be sought on appeal’[8].

Applicants’ grounds

(i) Ground 1: Condonation

9. The applicants submit that this court erred in granting condonation to the fifth respondent in respect of the late filing of his answering affidavit, which dealt in part with his condonation application, and merits. The thrust of the applicants’ resistance may be broken down to two succinct points. They are: (i) This court failed to distinguish between non-compliance with the rules and with directions, with the suggestion that courts rarely, if ever, condone non-compliance with the rules. It will be recalled that the first directive was issued by the court while a later one was issued by the Office of the Deputy Judge President. The court is also said to have misconstrued the extent of the delay which the applicants contend was poorly accounted for if at all.

10. The dicta extracted from Steenkamp dispels the notion that different standards apply when dealing with condonation for non-compliance with the rules as opposed to

non-compliance with the Court’s directions, or that courts rarely condone non-compliance with the rules. There is only one

standard, and that is the interests of justice, an elastic and versatile concept which takes into account a range of factors.

11. Significantly, the judgment traces the timeline from the date of inception of this litigation, placing particular emphasis on intervening directives issued via the Court and that issued via the Deputy Judge President’s office. Secondly, this court identified what factors it took into account in applying the standard of interests of justice. Finally, the court distinguished the circumstances of the present case from those prevailing Millu v City of Johannesburg Metropolitan Municipality[9]. No point will be served by regurgitating that discussion all over again.

12. It was not in vain that the Constitutional Court remarked in Eke v Parsons that the rules exist for the courts and not the courts for the rules, as seen in the passage immediately here below:

‘…Without doubt, rules governing the court process cannot be disregarded. They serve an undeniably important purpose. That, however, does not mean that courts should be detained by the rules to a point where they are hamstrung in the performance of the core function of dispensing justice. Put differently, rules should not be observed for their own sake. Where the interests of justice so dictate, courts may depart from a strict observance of the rules. That, even where one of the litigants is insistent that there be adherence to the rules. Not surprisingly, courts have often said “[i]t is trite that the rules exist for the courts, and not the courts for the rules”[10].

13. It may be that this court exercised a discretion in the loose sense, as the court in Steenkamp demonstrates. However, based on the circumstances of this case, there is no likelihood that a court of appeal would interfere. The applicants have failed to make a case demonstrating any misdirection on the part of this court. There is no merit to this ground and no prospect that a court of appeal would come to a different conclusion.

Ground 2: The court erred in finding that FRB had an interest in the matter

14. The gist of the applicants’ resistance to the judgment can be broken down to two points. I now deal with the first point. The applicants submit that the court erred in finding that FRB had an interest in the relief they seek. The applicants, it will be recalled sought an order declaring the sale concluded by the BRP, whilst lawfully in office, void. They say that FRB, the party paid about R2.8 million from the proceeds of the sale they seek to set aside, has no interest in the matter because FRB was paid in full. They add that were the court to confirm the order of voidness, FRB would have the right to institute a claim against the insolvent estate.

15. The flaw in the applicants’ reasoning is discussed in full in the judgment. That flaw is glaringly obvious from these submissions. The applicants do not answer the fundamental question of how the order would be executed against FRB, a party that is not before this court. These matters are canvassed in the judgment. There is no merit to the submission and no prospect that another court would come to a different finding.

Ground 3: The court erred in treating the sale as an executory contract

16. The court, according to the applicants ought to have found, as was espoused in Pride Milling Company (Pty) Ltd v Bekker NO and Another (393/2020) [2021] ZASCA 127; [2021] 4 All SA 696 (SCA); 2022 (2) SA 410 (SCA) (30 September 2021), that the disposition of the immovable property was void, and that the court had no discretion to validate the transaction. The applicants find their gripping ground, it would appear, from the fact that none of the payments made to Pride Milling were validated by the court, and later the SCA, but that reading needs to be sharpened somehow if not corrected.

17. The court in Pride Milling distinguished between the dispositions made in the period between the provisional winding up and the final winding up orders. That period was identified in that judgment as 29 June to 14 September 2017. There the court made plain that a court has no discretion to validate those dispositions. It then turned to deal with the disposition made on 7 June 2017, before the provisional winding up order but after the date of first presentation of the application to court. After canvassing the facts the court decided against validating that payment. What is important for present purposes is the distinction made by the court between the two periods.

18. The common cause facts as canvassed in the judgment confirm that the BRP was lawfully in office from September 2021 until 3 December 2021. The judgment further confirms that the sale was concluded on 29 November 2021 and the transfer to the 1st to 4th respondents was still outstanding when it was interrupted by the coming in of the concursus creditorium event, (28 March 2023).

Simply, the transaction was not completed by 28 March. That makes the transaction an executory contract, in respect of which the

liquidators elected to enforce, as stated in the judgment, a case to which the applicants had no answer whatsoever.

19. It does not assist the applicants to write off the acts lawfully carried out by the BRP whilst in office in their pursuit of an order of invalidity of the sale. The judgment illustrates these dates and why the transaction of purchase and sale concluded by the BRP was incomplete at the time of the concursus creditorium. I see no need to repeat what is in the judgment. There is no merit to this ground and no prospect that another court would come to a different conclusion.

Ground 4: The court erred in not exercising its discretion to validate the sale, yet, dismissing the application

20. The applicants contend that the court erred in not exercising its discretion to validate the disposition, as demonstrated in Pride Milling, whilst at the same dismissing the application. I refer to the judgment and the discussion there relating to the liquidators’

election to enforce the transaction. The liquidators in this case made the choice, as they are entitled to in law, to enforce the sale. Other than the submission that the transaction is not an executory contract, the applicants make no case to upset the authorities set out in the judgment confirming the liquidators’ authority. There is no merit to this submission and no prospect that another court would come to a different finding.

21. As to the remainder of the attack against the reasons, and whether the court made factual and legal errors in finding that sections 134 and 135 of the Companies Act, Act 71 of 2008, [2008 Act] is applicable to the present application. The established legal position is that an appeal lies against the order. The applicants do not suggest that the non-applicability or otherwise of these sections impact the order. There is thus no merit to this ground and no prospect that another court would come to a different finding.

Conclusion

22. For all the reasons set out in this ruling, the application for leave to appeal must fail.

Order

1. The application for leave to appeal is dismissed.

N.N BAM J (Ms)

JUDGE OF THE HIGH COURT,

GAUTENG, PRETORIA

Date of Hearing:

20 June 2025

Date of Judgment: 07 July 2025

Appearance:

Counsel for the Applicants: Adv D.M Leathern SC

Instructed by:

W De Wet Attorneys Inc.

Muckleneuk, Pretoria

[1] Act 10 of 2013.

[2] Caratco (Pty) Ltd v Independent Advisory (Pty) Ltd (982/18) [2020] ZASCA 17; 2020 (5) SA 35 (SCA) (25 March 2020).

[3] MEC for Health, Eastern Cape v Mkhitha and Another (1221/2015) [2016] ZASCA 176 (25 November 2016), paragraph 17.

[4](CCT65/05) [2006] ZACC 13; 2007 (5) SA 525 (CC); 2007 (2) BCLR 125 (CC) (1 September 2006), paragraph 19.

[5] (CCT198/14) [2015] ZACC 22; 2015 (5) SA 245 (CC); 2015 (10) BCLR 1199 (CC) (26 June 2015), paragraph 83, 85, 87- 88.

[6] (CCT29/18) [2019] ZACC 17; 2019 (7) BCLR 826 (CC); (2019) 40 ILJ 1731 (CC); [2019] 11 BLLR 1189 (CC) (30 April 2019), paragraph 26-27.

[7] (605/2016) [2017] ZASCA 47 (31 March 2017), paragraphs, 23-24; Zurich Insurance Company South Africa Ltd v Gauteng Provincial Government (734/2021) [2022] ZASCA 127; [2023] 1 All SA 368 (SCA); 2023 (1) SA 447 (SCA) (28 September 2022), paragraph 4; Cape Empowerment Trust Ltd v Fisher Hoffman Sithole (200/11) [2013] ZASCA 16; [2013] 2 All SA 629 (SCA); 2013 (5) SA 183 (SCA) (20 March 2013).

[8] Celliers and Others v Kleinfontein Aandeleblok (Edms) Bpk and Others (Leave to Appeal) (4755/2022) [2024] ZAGPPHC 1060 (31 October 2024), paragraph 16.

[9] (25039/2021) [2024] ZAGPJHC 1622 (18 March 2024).

[10] (CCT214/14) [2015] ZACC 30; 2015 (11) BCLR 1319 (CC); 2016 (3) SA 37 (CC) (29 September 2015), paragraph 39.