U.H N.O and Another v S.L and Others (D14148/2023) [2024] ZAKZDHC 103 (20 December 2024)

begin wrapper begin container begin header begin slogan-floater end slogan-floater - About SAFLII About SAFLII - Databases Databases - Search Search - Terms of Use Terms of Use - RSS Feeds RSS Feeds end header begin main begin center # South Africa: Kwazulu-Natal High Court, Durban South Africa: Kwazulu-Natal High Court, Durban You are here: SAFLII >> Databases >> South Africa: Kwazulu-Natal High Court, Durban >> 2024 >> [2024] ZAKZDHC 103 | Noteup | LawCite sino index ## U.H N.O and Another v S.L and Others (D14148/2023) [2024] ZAKZDHC 103 (20 December 2024) U.H N.O and Another v S.L and Others (D14148/2023) [2024] ZAKZDHC 103 (20 December 2024) Download original files PDF format RTF format make_database: source=/home/saflii//raw/ZAKZDHC/Data/2024_103.html sino date 20 December 2024 SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy IN THE HIGH COURT OF SOUTH AFRICA KWAZULU-NATAL LOCAL DIVISION, DURBAN Case No.: D14148/2023 In the matter between: U[...] H[...] N.O.                                                                                      FIRST APPLICANT DAN NAGAPPEN NAICKER N.O.                                                    SECOND APPLICANT and S[...] L[...]                                                                                          FIRST RESPONDENT N[...] H[...]                                                                                     SECOND RESPONDENT K[...] H[...]                                                                                          THIRD RESPONDENT K[...] H[...]                                                                                      FOURTH RESPONDENT THE MASTER OF THE HIGH COURT OF SOUTH AFRICA, PIETERMARITZBURG                                         FIFTH RESPONDENT AND Case no.: D10578/2024 In the matter between: S[...] L[...] APPLICANT and U[...] H[...] N.O.                                                                                  FIRST RESPONDENT U[...] H[...]                                                                                     SECOND RESPONDENT DAN NAGAPPEN NAICKER N.O. THIRD RESPONDENT N[...] H[...]    N.O.                                                                          FOURTH RESPONDENT K[...] H[...] N.O.                                                                                 FIFTH RESPONDENT THE MASTER OF THE HIGH COURT OF SOUTH AFRICA, PIETERMARITZBURG                                         SIXTH RESPONDENT STATION COMMANDER -                                                          SEVENTH RESPONDENT DURBAN NORTH POLICE STATION THE CHIEF MAGISTRATE, ETHEKWINI                                       EIGHTH RESPONDENT MAGISTRATE’S COURT-POINT MAGISTRATE THANGO, ETHEKWINI                                             NINTH RESPONDENT MAGISTRATE’S COURT-POINT ORDER The following orders shall issue: A. In case number D14148/2023: 1.     The applicants are given leave to withdraw their application. 2.     The applicants are ordered to pay the first respondent’s costs until 16 September 2024 on Scale B, such costs to be payable jointly and severally, the one paying, the other to be absolved. B. In case number D10578/2024 1.     The rule nisi granted on 4 September 2024 is discharged. 3.     Paragraph 4 of the order granted on 4 September 2024 is reconsidered and set aside. 2.     The applicant is ordered to pay the first to fifth respondent’s costs of the appearance on 12 November 2024. JUDGMENT BRAMDHEW AJ Introduction [1]          There are three matters before me namely, an application to withdraw, under case number D14148/2023, an application to confirm part of a rule nisi granted under case number D10578/2024, and a reconsideration application under case number D10578/2024. [2]         These individual matters were argued simultaneously, and I deliver this judgment in respect of all three applications. The background/facts [3]         The Trustees of the Greenbury Family Trust (“the Trust”) are U[...] H[...] (“H[...]”), Dan Nagappen Naicker (“Naicker”), S[...] L[...] (“L[...]”), N[...] H[...] (“N[...]”), K[...] H[...] (“K[...]”).  L[...], N[...], K[...] and K[...] H[...] (“K[...]”) are beneficiaries of the Trust.  L[...], N[...], K[...] and K[...] are siblings, and H[...] is their father.  In addition to their roles within the Trust, these parties are also involved as key figures in various juristic entities and businesses, which further intertwines their familial and business relationships.  Against this background revolves a family dispute. [4]         H[...] is embroiled in a contested divorce with L[...]’s mother, S[...] H[...] (“S[...]”).  In those divorce proceedings, S[...] has sought to join the Trust. [5]        On 13 December 2023, H[...] and Naicker instituted an application, in their capacities as trustees of the Trust, which application has commonly come to be known in these proceedings as “ the trust proceedings ”.  In this application, the applicants sought, inter alia , L[...]’s removal as a trustee, that she be directed to hand over documents relating to the Trust, that L[...] transfers ownership of a movable asset and her members interest in two close corporations. [6]        In her answering affidavit, L[...] alleges, in addition to answering the specific allegations in the H[...]’s founding affidavit, that the reason that the trust application was launched is due to the divorce proceedings between H[...] and S[...] and L[...]’s relationship with S[...].  L[...] alleges that H[...] had launched the trust application in order to gain full control of the Trust assets.  L[...] set the trust application down on the opposed roll for hearing on 12 November 2024.  The notice of set down was served on H[...] and Naicker on 16 July 2024. [7]         H[...] obtained an interim protection order against L[...] in the Point Branch Court on 15 July 2024, with the return date for the application being 12 November 2024.  H[...]’s protection order encompassed orders that L[...] was not to disclose information relating to certain properties, or passwords that are used in businesses, and to deliver certain movable items. [8]                This gave rise to L[...]’s urgent application, under case number D10578/2024 wherein Lallloo alleged that: 8.1.         H[...] obtained a protection order against her on 15 July 2024 at the Point Branch Court, with the return date being 11 November 2024. 8.2.         she gained knowledge of the protection order on 8 August 2024. 8.3.         she anticipated the return date of the protection order to be heard on 28 August 2024, with the notice to anticipate being served on the trustees on 15 August 2024. 8.4.         H[...] evaded personal service of the application to anticipate. 8.5.         H[...]’s legal representative appeared at the hearing and H[...] was not in attendance.  H[...]’s legal representative handed up a medical certificate on his behalf. 8.6.         N[...] and K[...] were present, whilst Naicker was not. 8.7.         H[...]’s legal representative refused to give an undertaking that the execution of the protection order would be stayed. 8.8.         the Magistrate indicated that he could only stay the execution of the interim protection order if this Court so ordered that. 8.9.         members of the Durban North police station attended at L[...]’s home on 9 July 2024 (in relation to a fraud charge not relevant to these applications). 8.10.      on 8 August 2024, four policemen arrived in an unmarked vehicle to serve the interim protection order and were insistent on carrying out the terms of the order, including the removal of various movable items, namely, L[...]’s vehicle, laptop and jewellery. 8.11.      after L[...]’s attorney (“Singh”) telephonically spoke to one of the policemen, Captain Mundree, the policemen left.  Singh met with Captain Mundree at the Durban North Police Station. 8.12.      Singh was handed the protection order, and the policemen did not take much interest in the pending trust application or her allegation that the relief sought by H[...] in the Magistrates’ Court did not fall within the ambit of the Domestic Violence Act. 8.13.      removal of items would cause grave injustice and severe prejudice to her, the beneficiaries of the Trust, other juristic entities and her mother in the pending divorce against H[...]. 8.14.      on Friday, 30 August 2024 N[...] and K[...] advised her that she ought to resign as trustee and convene a meeting with the Trust as the litigation was unnecessary.  Further, she was allegedly informed that H[...] was in possession of an issued warrant and was attending at the Durban North police station that evening if she did not agree to the meeting. 8.15.      she spent the weekend stressed and concerned and finalised the urgent application. 8.16.      H[...] had become combative and hostile against her ever since she reconciled with her mother. 8.17.      she is living in constant fear of arrest and harassment by the SAPS and abuse by H[...] given a history of abuse against his family. 8.18.      she fears for her life as H[...] has a R10 million life policy in her name of which the Trust is the beneficiary. 8.19.      H[...] may dissipate and conceal assets and funds of the Trust. [9]          L[...]’s urgent application was issued on 2 September 2024. [10] Singh deposed to an affidavit on 3 September 2024 [1] , wherein she stated that Captain Mundree informed her that: 10.1.     he was instructed to take L[...] into custody immediately as she failed to hand over the movables. 10.2.     if L[...] did not present herself at the Durban North Police Station on 3 September 2024 at 08h00, he would cause her to be arrested at her home. 10.3.     until he had a Court Order, he was obliged to arrest L[...] and remove the movable items listed in the interim protection order. [11]            The application was heard on 4 September 2024 without notice to H[...] or any of the other respondents cited in L[...]’s urgent application. [12] In paragraph 3.20 [2] of L[...]’s founding affidavit in the urgent application L[...] states “… that if this Honourable Court, does not grant the interim order, on an urgent ex parte basis , the First Respondent will execute on the interim protection order and take into his possession movable items, important documentation and records and unlawfully dissipate assets and funds, which he has no entitlement to. ” ( sic ) [13]            In her affidavit anticipating the protection order, L[...] alleges that H[...] fraudulently and without S[...]’s signature transferred property to a third person and transferred 98% of his member’s interest in two close corporations to the Trust. [14]            Nothing, however, is said as to how service of the application papers on H[...] would defeat the purpose of the relief sought. [15]            On the strength of the above, the Court granted the following orders: “ 1.    The Applicant’s non-compliance with the rules of this Honourable Court is hereby condoned; the application is deemed to be urgent, as contemplated by the provisions of Uniform Rule 6(12) and that the ordinary forms and service be dispensed with. 2.     That a Rule Nisi, do hereby issue, calling upon the First until the Ninth Respondents, to show cause on 12 NOVEMBER 2024 at 09h30am, being the return date, as to why the following, should not be granted:- 2.1    The interim protection order granted on 15 July 2024, at the Point Branch Magistrate’s Court under application no.: 1944/2024, together with any warrants issued, pursuant to the granting of the aforesaid order, be and is hereby stayed from execution, pending the finalisation of the application, issued under case number: D14148/2023 and the application for the protection order, issued under application number: 1944/2024 (Durban Magistrate’s Court, Point Branch). 2.2    It is directed that in the event of any further relief being granted to the First until the Fifth Respondents at the Point Branch Magistrate’s Court, under application no.: 1944/2024, pursuant to the hearing of this application, that such orders be and are hereby stayed from execution, pending the finalisation of the application, issued under case number: D14148/2023 and the application for the protection order, issued under application number: 1944/2024 (Durban Magistrate’s Court, Point Branch). 2.3    The First until the Fifth Respondents and any and all persons acting on behalf and under their instruction be interdicted and restrained from interfering with the lawful businesses and the movable and immovable assets of the Applicant and further interdicted from acting in an unlawful manner toward her employees; agents or representatives. 3.       That paragraphs 2.1 and 2.2 are to operate as interim relief with immediate effect pending the finalisation of this application on the return date; and 4.       That the First until the Fifth Respondents are directed to pay the costs, of this application, on an attorney and client scale, on a Scale B, as taxed or agreed upon. ” [16] On 30 September 2024 [3] , H[...] withdrew the protection order in the Point Branch Family Court. [17]            On 4 September 2024, following a trustee’s meeting, L[...] was replaced as trustee of the Trust. [18] On 16 September 2024, H[...] requested that the trust application be removed from the opposed roll as the relief sought was moot [4] .  On 17 September 2024, L[...] denied this request [5] . [19] On 23 October 2024, H[...] delivered a notice in terms of Uniform Rule 41(1) [6] , withdrawing the trust application and tendering L[...]’s costs up until 16 August 2024. [20]            Thereafter, on 5 November 2024, H[...] delivered a substantive application to withdraw the Trust application, which application was opposed. [21]            L[...] seeks confirmation of paragraph 2.3 of the rule nisi granted under case number D10578/2024.  At this hearing, the first to fifth respondents brought a reconsideration application, in terms of Uniform Rule 6(12)(c), for the urgent order that was granted under case number D10578/2024. [22]            The issues in these matters are: 22.1.         whether I ought to grant leave to H[...] and Naicker to withdraw the application under case number D14148/2023; 22.2.         whether L[...] is entitled to confirmation of paragraph 2.3 of the rule nisi granted under case number D10578/2024 on 4 September 2024; 22.3.         whether the first to fifth respondents in the urgent application under case number D10578/2024 are entitled to a reconsideration of the order granted. The legal framework and its application to the facts [23]            I shall deal with the withdrawal application, under case number D14148/2023, first. [24]            Whilst L[...] opposed the withdrawal application, in paragraph 9.7 of her opposing affidavit, she states “ Whilst I have no contention with the Applicants withdrawing the Trust Application, this Honourable Court is urged to come to my aid and grant that my removal as a Trustee be set aside. ” ( sic ).  The removal that she speaks about is reference to the decision taken by the Trustees on 4 September 2024. [25]            At the hearing of the matter, L[...]’s Counsel handed up a draft order under case number D14148/2023, wherein L[...] sought that: “ 1.     The application is dismissed; and 2.     The First and Second Applicants are directed to pay the First Respondent’s costs of this application on the attorney and own client scale. 3.     It is hereby recorded between the Applicants and the First, Second, Third and Fourth Respondents that the resolution taken by the Greenbury Family Trust on 4 September 2024, be and is hereby set aside. ” [26]            In respect of the withdrawal application, Rule 41 provides that: “ (1)(a) A person instituting any proceedings may at any time before the matter has been set down and thereafter by consent of the parties or leave of the court withdraw such proceedings, in any of which events he shall deliver a notice of withdrawal and may embody in such notice a consent to pay costs; and the taxing master shall tax such costs on the request of the other party.” [27] As stated in Protea Assurance Co. Ltd v Gamlase and Others [7] , without such consent or leave, a purported notice of withdrawal is “ incompetent and invalid and must be set aside ”. [28]            In determining whether to grant the order as requested I have considered the following decisions. [29] In Pearson and Hutton NN.O. v Hitzeroth and Others [8] the Court held that: “ The question of injustice to the respondents is naturally germane to the exercise of the Court's discretion under Rule 41(1), but, as I have already indicated, it does not seem to me that the respondents will be materially better off if leave to withdraw is refused to the applicants..” [30] In Karoo Meat Exchange Ltd v Mtwazi [9] , the Court stated that: “ In the first place it seems to me important that the judicial officer should be in control of proceedings in his court. Once the case has been set down for hearing the court has an interest to see that justice is done both in regard to the merits of the dispute and in regard to costs. When the case has progressed to the stage of being set down for hearing, the parties can no longer do as they please. The court cannot be deprived of its control merely by reason of the fact that the plaintiff has served a notice of withdrawal. In the second place it seems to me wrong, in principle, that the plaintiff having initiated the proceedings and put his opponent to inconvenience, trouble and expense, should, subject only to the payment of costs, at his mere whim have the right to withdraw the action at any time before the hearing.” [31] Further, the Court stated [10] : “… the plaintiff who set down a case for hearing had no absolute right to withdraw it; the court was not powerless but was left with a discretion in the matter.” [32] In Levy v Levy [11] , the Court stated that: “ It is after all not ordinarily the function of the Court to force a person to institute or proceed with an action against his or her will or to investigate the reasons for abandoning or wishing to abandon one. An exception, though one difficult to visualise, would no doubt be where the withdrawal of an action amounts to an abuse of the Court’s process. In Hudson v Hudson and Another 1927 AD 259 De Villiers JA held at 268 that: ‘ Where … the Court finds an attempt made to use for ulterior purposes machinery devised for the better administration of justice it is the duty of the Court to prevent such abuse.  But it is a power to be exercised with great caution, and only in a clear case.’” [33] In Reuben Rosenblum Family Investments v Marsubar [12] the Court stated that: “ It is only in exceptional circumstances that a party that has been put to the expense of opposing withdrawn proceedings will not be entitled to all the costs caused thereby .” [34] L[...] delivered her answering affidavit in the trust application on 9 February 2024 [13] .  The notice of set down for hearing on the opposed roll was served on H[...] and Naicker’s attorneys on 16 July 2024.  Two months later, on 16 September 2024, H[...] and Naicker’s attorneys wrote to Singh requesting that the matter be withdrawn.  When met with a refusal, a notice to withdraw in terms of uniform rule 4(1) was delivered on 23 October 2024.  However, at this stage, such notice to withdraw was incompetent and invalid as the matter had long since been set down, a fact known to H[...] and Naicker since 16 July 2024, when the notice of set down was served on their attorneys. [35]            On 5 November 2024, four (4) days before the hearing of the trust application, H[...] and Naicker delivered a substantive application to withdraw the trust application. [36]            It was explained that reference to ‘16 August 2024’ in the notice of withdrawal ought to be ’16 September 2024’, being the date upon which the letter was sent to L[...]’s attorney requesting that the trust application be withdrawn. [37]            It is not this Court’s function to force a litigant to persist with his or her application, unless the withdrawal amounts to an abuse of the Court’s processes. [38]            Whilst H[...]’s conduct in the litigation is far from exemplary, it was submitted that the trust application is sought to be withdrawn due to the decision taken on 4 September 2024, rendering the trust application moot.  I am not tasked with determining whether the decision taken on 4 September 2024 is correct.  The Trustees no longer wish to persist with the trust application.  Given these facts, I cannot conclude that such application was an abuse of process.  Without making any comment on the merits, the trust application does not seem to have been withdrawn with a view to abuse the Court’s processes. [39]            That being said, the applicants in the trust application must bear the costs.  The set down was served on 16 July 2024.  When L[...] refused, on 17 September 2024, to consent to the matter being withdrawn, H[...] and Naicker ought to have brought a substantive application to withdraw the trust application.  Instead, they served an incompetent and invalid notice of withdrawal on 23 October 2024.  They knew that L[...] refused to give her consent to withdraw the trust application, and that the leave of the Court would be necessary.  Instead, a substantive application was only instituted on 5 November 2024. [40]            At paragraph 9.7 of her affidavit in opposition to the application to withdraw, L[...] indicated that she has no qualm with the withdrawal of the trust application, however, seeks an order protecting her rights as Trustee.  Further, the order handed up by Counsel seeks that the resolution taken on 4 September 2024 be set aside. That decision, and its consequences, are not and have not served before this Court.  I cannot grant any relief as requested by L[...] in respect of the decision taken at the Trustees’ meeting.  There is no such application before me.  It would appear that L[...] refused to consent to the withdrawal and persisted with an opposing affidavit to the substantive application in the ill-conceived hope that this Court would grant her relief pursuant to the decision taken on 4 September 2024.  That belief was never sustainable.  Accordingly, I find that this justifies a departure from the position that the party that has been put to the expense of opposing a withdrawal application should be entitled to all the costs caused thereby. [41]            Accordingly, the applicants are given leave to withdraw the Trust application, and are directed to pay L[...]’s costs of the application up to and including 16 September 2024, the date upon which H[...] and Naicker requested that the application be withdrawn, with such costs to be on Scale B. [42]            I now turn to deal with the return date of the urgent application and the reconsideration application. [43]            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.” [44] In South African Airways Soc v BDFM Publishers (Pty) Ltd [14] , Sutherland J (as he was then) stated: “ The principle of audi alteram 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 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. [45] In Mazetti Management Services (Pty) Ltd and Another v Amabhungane Centre for Investigative Journalism NPC and Others , the Court stated [15] : “ In our law, there is a fundamental norm that no decision adverse to a person ought to be made without giving that person an opportunity to be heard. In a court of law, this norm is scrupulously observed. However, in the real world, prudence dictates that sometimes pragmaticism must be applied and in exceptional circumstances that sacred right of audi alterem partem may be relaxed, but when it is appropriate to do so, such a decision is hedged with safeguards. The principle which governs whether to grant an order against a person without their prior knowledge is straightforward: only when the giving of notice that a particular order is sought would defeat the legitimate object of the order. This procedure is rare and is called an ex parte application. The classic examples of its usage are where the applicant is the victim of a theft and seeks an order to either recover the stolen goods from the thief or procure evidence of the crime through an unannounced raid on the premises of the alleged perpetrator, a spouse who seeks protection from a violent partner or a creditor who seeks to freeze the bank account of a debtor when grounds exist to fear illegitimate dissipation, especially in insolvency proceedings. Any order made ex parte is provisional. The uniform Rules of Court, make provision for an urgent reconsideration of such an order. ” (footnote omitted) [46]            L[...] launched the urgent application without any notice to H[...] or the further respondents cited.  Singh’s affidavit, dated 3 September 2024, deals with her conversation with Captain Mundree, who indicated that L[...] ought to present herself on 3 September at 08h00.  On 2 September 2024, the urgent application was already set down to be heard on an ex parte basis on 4 September 2024. [47]            L[...]’s founding affidavit does not substantiate grounds for hearing the urgent application without notice.  It was this affidavit that was annexed to the notice of motion when the application was issued.  Only thereafter was the affidavit deposed to by Singh.  Singh allegedly spoke to Captain Mundree on 2 September 2024 at approximately 15h25.  Despite this, L[...] was content that the matter be heard on 4 September 2024.  Moreover, no allegations were made to suggest that providing notice to any of the respondents would have defeated the purpose of the application. [48]            The order was granted as set out in paragraph above.  L[...] seeks that only paragraph 2.3 be confirmed, as paragraphs 2.1 and 2.2 were rendered moot upon H[...]’s withdrawal of the protection order. The first to fifth respondents seek that the order be reconsidered in terms of Uniform Rule 6(12)(c), which reads as follows: " 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 ." [49] The rationale for this rule is to address actual or potential prejudice because of the absence of the audi alteram partem rule when the order was made. [16] [50] In ISDN Solutions (Pty) Ltd v CSDN Solutions CC [17] , it was stated that: “ The Rule has been widely formulated.  It permits an aggrieved person against whom an order was granted in an urgent application to have that order reconsidered, provided only that it was granted in his absence.  The underlying pivot to which the exercise of power is coupled is the absence of the aggrieved party at the time of the grant of the order. … It affords to 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. … the order in question may be either interim or final in its operation.  Reconsideration may involve the deletion of the order, either in whole or in part, or the engraftment of additions thereto. ” [51] The Court, further stated [18] , “ The framers of the Rule have not sought to delineate the factors which might legitimately be taken into reckoning in determining whether any particular order falls to be reconsidered. What is plain is that a wide discretion is intended. Factors relating to the reasons for the absence, the nature of the order granted and the period during which it has remained operative will invariably fall to be considered in determining whether a discretion should be exercised in favour of the aggrieved party. So, too, will questions relating to whether an imbalance, oppression or injustice has resulted and, if so, the nature and extent thereof, and whether redress is open to attainment by virtue of the existence of other or alternative remedies. The convenience of the protagonists must inevitably enter the equation. These factors are by no means exhaustive. Each case will turn on its facts and the peculiarities inherent therein .” [52] The first to fifth respondents in the urgent application, under case number D10578/2024, elected not to file an affidavit to deal with these issues and instead delivered a notice in terms of Rule 6(12)(c).  It is desirable that a party seeking to invoke rule 6(12)(c) ought to deliver an affidavit to detail the form of reconsideration required and the circumstances upon which it is based. [19] [53]            L[...] makes the statement in paragraph 3.20 of her founding affidavit in the urgent application: “ that if this Honourable Court, does not grant the interim order, on an urgent ex parte basis , the First Respondent will execute on the interim protection order and take into his possession movable items, important documentation and records and unlawfully dissipate assets and funds, which he has no entitlement to. ” [54] Members of the police called upon her premises in respect of the protection order once – on 8 July 2024.  Apart from N[...] and K[...] allegedly telling L[...] that H[...] was armed with a protection order and the alleged conversation between Captain Mundree and Singh, no allegation is made that providing notice to the respondents would defeat the object of the application.  Nothing at all is said as to why the respondents could not be given notice.  In fact, Singh states that “ I explained to Captain Mundree that my client was in the process of approaching High Court …” [20] [55]            There are also no allegations in L[...]’s founding affidavit that substantiate the granting of paragraph 2.3. [56]            Further, the costs order was granted on a final basis.  There is no indication as to why this was not sought as part of the rule nisi and why it was sought as final relief. [57]            Whilst I accept that there are specific and limited circumstances within which an urgent application may be entertained ex parte , I must also consider the nature of the order granted, the time over which it has remained operative, whether injustice has resulted and, if so, the nature and extent thereof. [58]            Paragraphs 2.1 and 2.2 of the order operated until the interim protection order was withdrawn and those orders rendered moot.  The first to fifth respondents have not delivered an affidavit to indicate what prejudice they have sustained and the nature and extent of such prejudice.  Without such evidence, I cannot infer any prejudice.  There is no indication that any prevention of the execution of the protection order has caused any prejudice to the first to fifth respondents.  They have not detailed how paragraph 2 has caused any prejudice or prevented the Trust from operating.  I can accordingly find no basis upon which I am to exercise my discretion to reconsider the rule nisi .  Whilst paragraphs 2.1 and 2.2 are moot, there are no grounds upon which I can confirm paragraph 2.3 of the order.  This relief has never been justified. [59]            The difficulty arises in paragraph 4 wherein a cost order was granted on a final basis.  This ought not to have been sought, particularly in circumstances where the order was sought ex parte .  The prejudice here is self-evident.  There is a final order directing the first to fifth respondents to pay the costs of the application.  I, accordingly, reconsider paragraph 4 of the order.  This order never formed part of the rule nisi sought and ought not to have been granted. I have considered whether it ought to be reconsidered and included as part of the rule nisi (which I intend on discharging).  However, the inclusion of a cost order in the rule nisi was never contemplated. I, therefore, deem it unwarranted to reconsider the rule nisi to include the cost order. I, accordingly, discharge the rule nisi and reconsider paragraph 4 and set it aside so that it ought not to have been granted by the Court hearing the urgent application. [60]            The first to fifth respondents elected not to deliver any affidavits and only handed to me a notice in terms of Rule 6(12)(c) on the day of the hearing, allegedly due to legal advice on the issue only being received during the week prior to the hearing on the opposed roll. However belated their response to the urgent application may have been, the fact is that they had to instruct legal representatives to attend court to oppose the confirmation of the rule nisi and to seek its reconsideration.  I, therefore, order that L[...] be directed to pay only the costs occasioned by the appearance of the legal representatives on 12 November 2024 in respect of the return date of the urgent application. Order [61]        The following orders shall issue: A. In case number D14148/2023: 1.     The applicants are given leave to withdraw their application. 2.     The applicants are ordered to pay the first respondent’s costs until 16 September 2024 on Scale B, such costs to be payable jointly and severally, the one paying, the other to be absolved. B. In case number D10578/2024 1.     The rule nisi granted on 4 September 2024 is discharged. 2.     Paragraph 4 of the order granted on 4 September 2024 is reconsidered and set aside. 3.     The applicant is ordered to pay the first to fifth respondent’s costs of the appearance on 12 November 2024. BRAMDHEW AJ Case information Heard on                                              : 12 November 2024 Judgment delivered                               : 20 December 2024 For the applicants in case                      : Mr J Ploos Van Amstel case no. D14148/2023 and first to fifth respondents in case no.: D10578/2024 Instructed by                                         : Miten Naren Inc Suite 9, Raza Oriental Plaza 56 Pandora Street Phoenix Ref: MN/RN/T141 E-mail: mitennaran@telkomsa.net For the first respondent in                      : Ms L Moodley case no. D14148/2023 and applicant in case no.: D10578/2024 Instructed by                                         : Strauss Attorneys 9 th Floor, Strauss Daly Place 41 Ridgeside Office Park Umhlanga Ridge Ref: S Singh/AB/LAL 110/0001 Email: SSingh2@straussdaly.co.za [1] Index to Urgent Ex Parte Application, Volume 2, pages 99-103 [2] I ndex to Urgent Ex Parte Application, Volume 1, page 14 [3] Index to Urgent Ex Parte Application, Volume 2, pages 152-153 [4] Index to Application for Leave to Withdraw, page 16 [5] Index to Application for Leave to Withdraw, pages 17-20 [6] Index to Application for Leave to Withdraw, pages 21-23 [7] 1971 (1) SA 460 (E) at 465G [8] 1967 (3) SA 591 (ECD) at 594H [9] 1967 (3) SA 356 (CPD) at 359B-D [10] Ibid at 360G [11] [1991] ZASCA 81 ; 1991 (3) SA 614 (AD) at paragraph 17 [12] 2003 (3) SA 547 (C) at 550B-C [13] Index to opposed application under case no.14148/2023, Volume 2, page 161 [14] 2016 (2) SA 561 (GJ) at paragraph 22 [15] 2023 (6) SA 578 (GJ) at paragraph 1 [16] Industrial Development Corporation of South Africa v Sooliman 2013 (5) SA 603 (GSJ) at paragraph 10 [17] 1996 (4) SA 484 (W) at 486G-J and 487A [18] Ibid at 487B-C [19] ISDN Solutions (Pty) Ltd v CSDN Solutions CC , supra , at 487C-D [20] Index to Urgent Ex Parte Application, Volume 2, page 102, paragraph 3.4.2 sino noindex make_database footer start