THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Reportable
Case No: 006/2015
In the matter between:

THE MINISTER OF SAFETY AND SECURITY                                             FIRST APPELLANT

THE DIRECTOR OF PUBLIC PROSECUTIONS
GAUTENG LOCAL DIVISION                                                                  SECOND APPELLANT

and

TEMBOP RECOVERY CC                                                 FIRST RESPONDENT

STAR DIAMOND CUTTING WORKS CC                                             SECOND RESPONDENT

GIANDOMENICO (MARIO) MUGNAIONI                                                 THIRD RESPONDENT

MARCELLINO MUGNAIONI                                                                  FOURTH RESPONDENT

GIANDOMENICO FLORIDO SALVATORE
MUGNAIONI JNR

FIFTH RESPONDENT

MARIA ROSARIA MUGNAIONI                                                                 SIXTH RESPONDENT

GOFFREDO MUGNAIONI                                                                   SEVENTH RESPONDENT

Neutral citation:
Minister of Safety and Security v Tembop Recovery (006/15) [2016]
ZASCA 52 (1 April 2016)

Coram:
Leach, Saldulker, Dambuza, Mathopo JJA and Baartman AJA

Heard:

18 March 2016

Delivered:

1 April 2016

Summary:
Civil Procedure ─ Uniform rules of court ─ application to strike out the defence in
application for return of items seized in terms of warrant of search and seizure ─ where such
application is made, and criminal proceedings are pending or have been reinstituted, court must
consider the interests of justice, policy and public considerations in the exercise of its discretion
to grant order ─ court should be loath to issue civil declaratory orders in matters which are the
subject of criminal proceedings.

______________________________________________________________________

ORDER
______________________________________________________________________

On appeal from: The South Gauteng Local Division of the High Court, Johannesburg
(Vorster AJ sitting as court of first instance):

1 The application for leave to appeal is granted.
2 The appeal is upheld.
3 Paragraphs 1, 2 and 3 of the order of the high court of 29 August 2014, dismissing the
appellants’ application for condonation and, striking out the appellants’ defence to the
main application are set aside and substituted with the following:
‘1.1 The respondents are ordered to comply with the applicants’ notice in terms of rule
35(12) read with rule (13) of the Uniform rules within ten (10) days of this order.
1.2 In the event of the respondents failing to comply with paragraph 1.1 of the order, the
applicants may apply on the same papers duly amplified to strike out the respondents’
defence to the main application.
2 Late filing of the respondents’ rule 6(5)(d)(iii) notice is condoned.
3 The respondents are to pay the costs of this application as well as the costs of their
application for condonation.’
______________________________________________________________________

JUDGMENT
______________________________________________________________________

Mathopo JA (Leach, Saldulker, Dambuza JJA and Baartman AJA concurring):

[1] This is an application for leave to appeal against a judgment of the South
Gauteng Local Division of the High Court, Johannesburg, (Vorster AJ) in which the
appellants’ application for leave to appeal and condonation was dismissed. The high
court held that in the absence of compliance with a notice issued by the respondents’ in
terms of rule 35(12) read together with rule 35(13) of the Uniform rules, the respondents
were entitled to an order for the striking out of the appellants defence to the main
application. The high court also ordered that the appellants pay the respondents’ costs

on a scale as between attorney and own client. The high court refused leave to appeal.
On petition, this court granted leave to appeal against that finding and ordered that the
parties be prepared if called upon to do so, to argue the merits in terms of s 17(2)(b)
and (d) of the Superior Courts Act 10 of 2013 (the Act).

Background
[2] A brief background to the matter is as follows. During 2009, the South African
Police Services (SAPS) commissioned a special investigation project named Project
Nemesis, established after a formal investigation was authorised in December 2007
relating to an alleged platinum syndicate. During these investigations, SAPS opened
some 50 dockets in various jurisdictions in the country relating to the syndicate.

[3] As part of the investigations, the third and fourth respondents were implicated in,
and it was alleged that they were involved in an organised fashion over a period of time,
possessed and dealt with metals or precious groups of metals, in particular platinum,
which was either stolen or illegally obtained. During 2011, the police secured warrants
for the search and seizure of these alleged illegal precious group metals and other
items associated with the crime committed and obtained warrants to arrest implicated
persons, who included the third and fourth respondents. The evidence gathered during
the investigations indicated that they were linked to organised smuggling and illegal
export of unwrought precious metals from the Republic of South Africa to refineries
abroad.

[4] The third and fourth respondents, as well as other accused persons were
arrested and charged in terms of the Prevention and Combating of Corrupt Activities Act
12 of 2004 (POCA) in the Krugersdorp Regional Court on 29 September 2011. The
crimes for which they were charged were allegedly committed in districts within the
North West, North Gauteng and South Gauteng Provinces. The case was postponed
several times for a variety of reasons, chief amongst which was the fact that the State
was not ready to proceed because it was in the process of centralising the matter, and
intended to indict the third and fourth respondents, and other accused persons for

contravention of the certain provisions of the POCA. On 23 August 2013, the defence
successfully objected to a further postponement and the State provisionally withdrew
the charges against them.

Issues
[5] The preliminary issues in this appeal are the high court’s refusal of the
appellants’ (a) application for leave to appeal and (b) application for condonation for the
late filing of their rule 6(5)(d)(iii) notice. The main issue of substance is whether the high
court correctly exercised its discretion when it struck out the appellants’ defence to the
main application whilst criminal proceedings were pending. These issues are
considered below.

The application for leave to appeal
[6] The high court correctly found that on a plain reading of rules 35(12) and 35(13),
the respondents are entitled to documents which were relied upon in the appellants
answering affidavit. Because the appellants had not filed any opposing affidavit to the
notice in terms of rules 35(12) and (13), it dismissed the application for leave to appeal
on the basis that there were no reasonable prospect of success on appeal. The
attention of the high court was drawn to a number of judgments of this court which held
that courts should be loath to issue civil declarators in matters which are the subject of
criminal proceedings. The appellants thus have an arguable case and therefore have
some prospects of success on appeal. There are compelling reasons why the appeal
should be heard. It is also in the interest of justice that leave to appeal be granted. I turn
to consider the application for condonation.

Condonation
[7] It is trite that an application for condonation will be granted on good cause
shown. There are several factors that a court would generally take into account when
considering whether or not to exercise discretion, such as the reasons for lateness, the
importance of the case, the prejudice to be suffered by the opposing party, and whether
there are any prospects of success.

[8] The appellants sought condonation for the late filing of the notice in terms of rule
6(5)(d)(iii) which they filed on 18 July 2014. The explanation for the delay was described
by the appellants in the high court as ‘the respondents rule 6(5)(d)(iii) was unfortunately
only filed on 15 July 2014 as a result of counsel’s unavailability before that time.’
Because no condonation application had been filed by 24 July 2014, being the date
allocated for the hearing of the interlocutory application, the matter was postponed to 27
August 2014. The appellants submit that the respondents suffered no prejudice as a
result of the delay and contend that the interlocutory application was overtaken by
events once the criminal charges were reinstated, which they were on 11 July 2014.
(Those proceedings are still pending, apparently awaiting the finalisation of this appeal.)

[9] Although the explanation of the appellants’ is far from satisfactory. There were
indeed reasonable prospects of success in the case. The high court should have
exercised its discretion and granted condonation instead of dismissing the application.
However, the opposition to the condonation application was not unreasonable and the
appellants who sought the indulgence should bear the cost of obtaining it. I turn to deal
with the merits of the interlocutory application.

Interlocutory application
[10] Spurred on, no doubt by the provisional withdrawal of the charges and the failure
of the State to recharge them as it had threatened to do, the respondents launched
motion proceedings (the main application) on 12 February 2014, for the return of all
seized items under the search and seizure warrant. At that stage the State had not yet
served any indictment on them in terms of POCA and the authorisation for centralisation
of the cases because the crimes were allegedly committed in various jurisdictions,
namely North West, Northern Gauteng and South Gauteng, had not been obtained. In
addition the forensic reports were still outstanding. The centralisation authorisation was
necessary because it was the State’s intention that all the pending cases be
consolidated and be tried in one court, in this regard the South Gauteng Local Division
of the High Court, Johannesburg.

[11] The appellants opposed the main application and filed an opposing affidavit in
which reference was made to several documents supported by annexures (in which the
seized items were listed). They contended that the relief sought by the respondents was
incompetent in law because the respondents were not entitled to possess some of the
seized items, either as they were to be used as evidence in pending criminal
proceedings or as their possession in the hands of the respondents would be unlawful.
In the opposing affidavit reference was made to the fact that the Mugnaioni family (who
are related to the respondents) operated a recovery works plant with an expired refinery
licence and further that they were not allowed or entitled to possess Precious Group
Metals (PGM) and uncut diamonds at their premises.

[12] After the appellants had filed their opposing affidavit, the respondents did not file
a replying affidavit. Instead they filed a notice in terms of 35(12) read with rule 35(13) on
14 April 2014, requesting the appellant to produce and make available some of the
documentation referred to in the State’s opposing affidavit of warrant officer Meyer, an
investigating officer in the criminal proceedings. The appellants did not oppose the rule
35(12) and (13) notice. Instead, their attorney wrote to the respondents attorneys on 13
May 2014 and indicated to the respondents that they were not entitled to the documents
requested. The appellants placed reliance for this proposition on the judgment in
Stevens & others v Magistrate Swart & others 2014 (2) SA 150 (GSJ) where it was held
that the provisions of rule 35(12) read with rule 35(13) were not applicable to motion
proceedings until the stage where the court has issued an order directing it to do so.

[13] Rule 35(12) and (13) and rule 30A provide as follows:
‘(12) Any party to any proceeding may at any time before the hearing thereof deliver a notice as
near as may be in accordance with Form 15 in the First Schedule to any other party in whose
pleadings or affidavits reference is made to any document or tape recording to produce such
document or tape recording for his inspection and to permit him to make a copy or transcription
thereof. Any party failing to comply with such notice shall not, save with the leave of the court,
use such document or tape recording in such proceeding provided that any other party may use
such document or tape recording.

(13) The provisions of this rule relating to discovery shall mutatis mutandis apply, in so far as
the court may direct, to applications.’
Rule 30A provides:
‘(1) Where a party fails to comply with these rules or with a request made or notice given
pursuant thereto, any other party may notify the defaulting party that he or she intends, after the
lapse of 10 days, to apply for an order that such rule, notice or request be complied with or that
the claim or defence be struck out.
(2) Failing compliance within 10 days, application may on notice be made to the court and the
court may make such order thereon as it seems meet.’
Clearly the appellants were misguided, because there is no obligation on a party
seeking to exercise the provisions of rule 35(12) to first secure a directive from the court
to do so. The mere reference of a document in the affidavit entitles the other party to
seek or request that the documents be produced. See Machingawuta & others v Mogale
Alloys (Pty) Ltd & others 2012 (4) SA 113 (GSJ).1 In so far as Stevens held to the
contrary, it was wrongly decided.

[14] As a result of the appellants’ failure to oppose the interlocutory application, the
respondents filed a notice in terms of rule 30A of the Uniform rules to strike out the
appellants defence to the main application (the interlocutory application). The appellant
did not oppose this application. Relying on the Stevens judgment, and being of the view
that the step taken by the respondent was premature and irregular, they took no steps
to set aside the rule 30A notice as an irregular proceeding in terms of rule 30. The
respondents, as they were entitled to do, enrolled the matter for hearing on the
unopposed roll for 24 July 2014. In the meantime, the second appellant decided to
officially institute the criminal prosecution against the third, fourth and other accused
persons. On 11 July 2014, the criminal case was transferred to the high court and
postponed, pending the outcome of these motion proceedings.

[15] On 18 July 2014, without seeking condonation, the appellants served and filed a
notice in terms of rule 6(5)(d)(iii) of the Uniform rules in which they raised three points of

1 See further Moulded Components & Rotomoulding South Africa (Pty) Ltd v Coucourakis & another 1979
(2) SA 457 (W) at 460H-461E.

law, namely, privilege, reinstitution of the criminal proceedings, and repeated their
assertion that the respondents were not entitled to the documents. They also made
various factual assertions and explained why they had ignored both the rule 35(12)
notice and that under rule 30A. The belated stance of the appellants resulted in the
matter being postponed to 26 August 2014. On 28 July 2014, the appellants delivered
an application for condonation for the late filing of the rule 6 notice. As stated earlier, the
high court thereafter dismissed the condonation application and struck out the
appellants defence to the main application in terms of rule 30(A).

[16] The gravamen of the respondents’ submission in relation to the interlocutory
application was that the appellants should have delivered an answering affidavit and not
a notice in terms of rule 6(5)(d)(iii). The appellants concede that they were misguided
about the correct legal procedure applicable to rule 35(12) applications but contend that
the high court exercised its discretion wrongly when it struck out the appellants’ defence
to the main application.

[17] In this court, the cornerstone of the appellants’ argument was that once criminal
charges were reinstated, the interests of justice, policy and public considerations
outweighed the interests of the respondents. In essence the case advanced for the
appellants is that the respondents did not suffer any prejudice as a result of the late
introduction of the rule 6(5)(d)(iii) notice, because it was foreshadowed in the appellants
letter dated 13 May 2014.

[18] Properly understood, the argument of the appellants was the following. The effect
of the order of the striking out the defence of the appellants was that the items which
were lawfully seized pursuant to a valid search and seizure warrant would be returned
to the respondents and other accused persons even though some of the accused may
not lawfully possess them, as there were no exceptional circumstances warranting the
return of the items at this stage. We were urged to accept that the high court
misdirected itself when it held that the merits of the main applications were irrelevant
and the point of law relating to civil declarators affecting criminal proceedings was

unsustainable. In support of its argument reliance was placed on Wahlhaus & others v
Additional Magistrate, Johannesburg & another 1959 (3) SA 113 (A) at 118H-119I
where the court dealing with a civil declaratory order said the following:
‘The present case has no special features and cannot rightly be brought within the ambit of the
Johnstone & Co decision, supra. Apart from the fact that the petition neither referred to, nor
sought any relief by way of, a declaration of rights, it is clear that the present would not be a
suitable case for the granting of the very special relief entailed in the Court’s exercising its
discretion under s 102 of Act 46 of 1935 to make a declaratory order in relation to a criminal
case. The appellants are alleged to have committed a crime. The normal method of determining
the correctness, or otherwise, of that allegation is by way of the full investigation of a criminal
trial. There is a total absence of any of the types of consideration which induced this Court to
make a declaratory order in the Johnstone case supra. Nor, indeed does the case even contain
any law point which, if resolved in appellant’s favour, would dispose of the criminal charge, or a
substantial portion of it.’

[19] This view was endorsed in NDPP v King2 where this court also expressed itself
as follows:
‘Fairness is not a one-way street conferring an unlimited right on an accused to demand the
most favourable possible treatment, but also requires fairness to the public as represented by
the State. This does not mean that the accused's right should be subordinated to the public's
interest in the protection and suppression of crime; however, the purpose of the fair trial
provision is not to make it impracticable to conduct a prosecution. The fair trial right does not
mean a predilection for technical niceties and ingenious legal stratagems, or to encourage
preliminary litigation ─ a pervasive feature of white collar crime cases in this country. To the
contrary: courts should within the confines of fairness actively discourage preliminary litigation.
Courts should further be aware that persons facing serious charges ─ and especially minimum
sentences ─ have little inclination to co-operate in a process that may lead to their conviction
and 'any new procedure can offer opportunities capable of exploitation to obstruct and delay'.
One can add the tendency of such accused, instead of confronting the charge, of attacking the
prosecution.’3

2 National Director of Public Prosecutions v King [2010] ZASCA 9; 2010 (2) SACR 116 (SCA) para 5.
3 See also Mngomezulu & another v National Director of Public Prosecutions & another [2007] ZASCA
129; 2008 (1) SACR 105 (SCA) paras 12-14.

In Van der Merwe v National Director for Public Prosecutions [2010] ZASCA 129; 2011
(1) SACR 94 (SCA) para 32, this court held that litigation of this kind falls squarely into
the category of preliminary litigation that ought to be avoided or discouraged.

[20] The respondents’ counter argument was the following. Quite correctly, they
submitted that the appellants were not entitled to resort to rule 6(5)(d)(iii) to place
evidence before the court of the facts which should have been placed by way of an
opposing affidavit. The argument advanced is that the appellants’ sought to introduce
evidential material that would have been placed before the court by way of an opposing
affidavit, thus denying the respondents the opportunity to deal with these facts. It was
contended that the reinstitution of criminal proceedings was a stratagem aimed at
persuading the court that the State was ready to proceed with the trial when it was not.
It was further submitted that the appellants’ were not entitled to seize and retain the
items simply because of a pending criminal trial. The submission made in this regard
was that the institution of criminal prosecution does not constitute a bar against the
relief sought. Correctly understood, the respondents pin their hopes on the legal
assertion that in the main application, the State cannot prove the criminal activity as
alleged in respect of the items which the respondents seek to be returned to them. I do
not agree. Amongst the items sought to be returned are exhibits which are intended to
be used at the pending criminal trial. Returning them to the respondents will defeat the
purpose for which they were secured.

[21] What emerges clearly from the above-cases is that although there is no absolute
bar from adjudicating such issues during the interlocutory applications, applications
amounting to preliminary litigation pending the outcome of criminal proceedings should
not be encouraged as it is the duty of the criminal trial to deal with all issues relating to
the aspects that will affect the criminal trial. The duty to examine or adjudicate the
lawfulness or otherwise of the search and seizure resides with the trial court. A decision
by a civil court to interfere with the trial court’s decision should be exercised sparingly, in
exceptional circumstances. (See Wahlhaus). In my view where a court is approached
for a relief, as in the present case, it must in the exercise of its discretion have recourse

inter alia to the following, (a) the main issues between the parties, (b) return of items
seized in connection with a criminal trial; (c) the reason why the documents cannot be
furnished at that stage, (d) the likely impact the release of the documents would have on
the pending trial and (e) finally, the prejudice that may be suffered by either party if the
order is refused or granted.

[22] The exhibits which have been seized are required by the State to attempt to
prove its case against the third and fourth respondents, as well as other accused
persons, and form an integral part of the State’s case in the pending criminal trial.
Returning the items seized to the respondents would seriously undermine and impact
negatively on the State’s case. There is no reason to believe that the respondents’
rights are under threat and neither will their rights to a fair trial be infringed. In my view
no grave injustice would result if the issues raised by the respondents in the main
application are determined by the trial court. The respondents will have an opportunity
to challenge each and every aspect of the warrants and evidence obtained against them
at the trial. It will be for the trial court to decide whether the warrants and evidence were
unconstitutionally obtained, and the trial court will decide whether such evidence should
be admitted or not.

[23] It was thus necessary that the high court strike a balance between the policy
considerations, public interest, interests of justice and the rights of the respondents. In
my view, the court a quo failed to do so. It adopted the most draconian option of striking
out the defence to the main application without affording the appellants the opportunity
to remedy their default. In terms of rule 30A(2) it should have exercised its discretion
and ordered the appellants’ to comply with the request for discovery in terms of rule
35(12) and (13). Had there then been non-compliance with that order, the court could
on further application have considered striking out the defence. Such an approach
would have been far more in accordance with justice. As the high court did not seek
compliance with the rule but ordered the striking out of the appellants defence, it
misdirected itself, entitling this court to interfere with its order. For these reasons, the
appeal must succeed.

Costs
[24] The high court ordered the appellants to pay the respondents costs on a scale of
attorney and own client. It was driven to this conclusion by the appellants’ misguided
interpretation to the rules and reliance on the Stevens case. I accept that the conduct of
the appellants was less than satisfactory and dilatory but that does not mean that it
should be mulcted with a punitive costs order. In the circumstances an appropriate
costs order would be one on a party and party scale.

[25] However, counsel for the appellants correctly conceded that in the light of the
woefully inept conduct of the appellants’ case, including the necessity to seek
condonation in this court, despite their success the appellants ought not to be awarded
their appeal costs. The effect of this is that each party would pay their costs of appeal.

[26] The following order is made:
1 The application for leave to appeal is granted.
2 The appeal is upheld.
3 Paragraphs 1, 2 and 3 of the order of the high court of 29 August 2014, dismissing the
appellants’ application for condonation and, striking out the appellants’ defence to the
main application are set aside and substituted with the following:
‘1.1 The respondents are ordered to comply with the applicants’ notice in terms of rule
35(12) read with rule 35(13) of the Uniform rules within ten (10) days of this order.
1.2 In the event of the respondents failing to comply with paragraph 1.1 of the order, the
applicants may apply on the same papers duly amplified to strike out the respondents’
defence to the main application.
2 Late filing of the respondents’ rule 6(5)(d)(iii) notice is condoned.
3 The respondents are to pay the costs of this application as well as the costs of their
application for condonation.’

_____________
R S Mathopo
Judge of Appeal

Appearances

For Appellants:

D J Joubert SC (with him M Kgomongwe)
Instructed by:
The State Attorney, Johannesburg
The State Attorney, Bloemfontein

For Respondents:
D Dörfling SC

Instructed by:

Xenophontos Attorneys, Johannesburg
Martins Attorneys, Bloemfontein

THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

MEDIA SUMMARY OF JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

FROM

The Registrar, Supreme Court of Appeal

DATE

1 April 2016

STATUS

Immediate

Please note that the media summary is for the benefit of the media and does not form part of
the judgment.

Minister of Safety and Security v Tembop Recovery (006/15) [2016] ZASCA 52 (1 April
2016)

MEDIA STATEMENT

Today, the Supreme Court of Appeal (SCA) granted leave to appeal to the Minister of Safety and
Security and the Director of Public Prosecutions, Gauteng Local Division (the appellants) and upheld
the appeal against the order by the Gauteng Local Division of the High Court, Johannesburg (the high
court).

This appeal, though civil in nature, arose as a result of a criminal matter which is still pending. During
2011, the police secured search and seizure warrants against the third and fourth respondents, after
it was alleged that they were involved in a syndicate which allegedly smuggled and exported platinum
Gauteng and North West regions. The police seized several items from the respondents and after
further investigations, the third and fourth respondents were charged under the Prevention and
Combating of Corrupt Activities Act 12 of 2004 (POCA). The prosecution of the matter was not
expeditious, and after several postponements of the trial in the Krugersdorp Regional Court, mainly at
the State’s instance, the State provisionally withdrew the charges against the third and fourth
respondents. According to the State, it required these postponements because it was in the process
of obtaining permission from the Director of Public Prosecutions in North West and Gauteng, to hold
the trial in Johannesburg, as the crimes had been committed in both these North West and Gauteng
and also because it was in the process of amending the indictment to include charges under POCA
against the third and fourth respondents, and other accused.

After the State provisionally withdrew the charges against the third and fourth respondents, they
applied to the high court for an order to direct the State to return to them, the items which had been

seized under the warrants (the main application). The appellants opposed this application and in their
opposing affidavit, made reference to several documents. The respondents then issued notice in
terms of Uniform rule 35(12) and (13), requesting the appellants to provide them with the documents
which they had referred to in the opposing affidavit. The appellants failed to provide these documents,
resulting in the respondents lodging an interlocutory application in the high court, in terms of Uniform
rule 30A, this time to strike out the respondent’s defence in the main application. This interlocutory
application was enrolled for hearing, and on the day that it was heard, the appellants delivered a
notice in terms of Uniform rule 6(5)(d)(iii) refusing to provide the documents, and  raising points of
law, including  privilege and the reinstitution of the criminal proceedings against the third and fourth
respondents. As a result of the delivery of the notice, the hearing was postponed and was again
heard on 26 August 2014. They also had to deliver an application for condonation for the late delivery
of the rule 6 notice.

The high court dismissed the appellants’ condonation application and granted the respondents’
application to strike out the appellants’ defence in the main application. The result was that the main
application, being the application to return the seized items, was now unopposed. This was in spite of
the rule 6 notice indicating that the State had reinstituted the charges against the third and fourth
respondents.

The appellants appealed the high court’s order, and leave to appeal was refused, with the result that
the appellants lodged these proceedings in the SCA.

In the SCA, the issues for determination were whether the appellants’ application for leave to appeal
and application for condonation for the late filing of their rule 6(5)(d)(iii) notice were correctly
dismissed. The court also had to decide whether the high court properly exercised its discretion when
it struck out the appellants’ defence to the main application whilst criminal proceedings were pending.

The SCA granted the appellants leave to appeal and the application for condonation in relation to the
late filing of the rule 6 notice. In considering the interlocutory application, it held that applications
amounting to preliminary litigation pending the outcome of criminal proceedings should not be
encouraged as it is the duty of the criminal trial to deal with all issues relating to the aspects that will
affect the criminal trial. The SCA cautioned that decisions by a civil court to interfere with the trial
court’s decision should be exercised sparingly, in exceptional circumstances only. The court further
said that the high court should strike a balance between the policy considerations, public interest,
interests of justice and the rights of the respondents, and that in this instance, the high court had
failed to do so.

--- ends ---