IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)
Case No. 005443/2025
1. REPORTABLE: NO
2. OF INTEREST TO OTHER JUDGES: NO
3. REVISED: NO
SIGNATURE
In the matter between:
DLC 56 GROUP (PTY) LTD
CALVIN MUTIZE
And _ _14 March 2025
DATE
MOHLAWE TECHNOLOGY (PTY) LTD
MALOSE MGOAI
PATRICK PHILLIMON MASHA
JOHANNESMAGKIBA MALULEKA
MINISTER OF POLICE
KOKETSO CHARLES MAPHOTHOMA First Applicant
Second Applicant
First Respondent
Second Responde nt
Third Responde nt
Fourth Respondent
Fifth Respondent
Sixth Respondent
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Summary: Urgent Application -Uniform Rule of
Court 6(12) -Applicants should set forth explicitly
the reasons why the matter should be treated
urgent -self -created / subjective perceived urgency
does not entitle the applicants to urgent relief -
Application struck from the roll for lack of urgency.
The Sanctity of the Urgent Court has to be preserved
for matters that are deservingly , lest the Urgent
Court would the flooded with matters tha t are
undeserving, self-created / subjective orientated
urgency.
JUDGMENT - EX TEMPORE
YENDE AJ
[1] An application is brought in terms of the Uniform Rule 6(1 2), in that the
application, it is common cause that the applicant s should set forth explicitly the
reasons why the matter is urgent. Self -created urgency does not entitle the applicants
to urgent relief and where it is found that the application is self -created, such
application has to be struck off the roll for lack of urgency. The Sanctity of the Urgent
Court has to be preserved for matters that are deservingly, lest the Urgent Court would
the flooded with matters that are not deserving , self-created therefore subjectively
orientated urgency .
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[2] This Court has consistently refused urgent applications in cases where the
urgency relied upon was subjective urgency, clearly self -created. Consistency is
important in this context, as it informs the public and legal practitioners that rules of
Court and Practice Directives can only be ignored at a litigant's peril. Legal certainty
is one of the cornerstones of a legal system based on the Rule of Law.
[3] As we all know by now that the test for urgency was eloquently stated in the dictum
from the judgment in East Rock Trading 7 (PTY) Ltd and Another v Eagle Valley
Granite and Another’s1
that “ .... There import thereof is that the procedure set out in Rule 6(12) is not
for taking. An applicant has to set forth explicitly the circumstances which he
avers render the matter urgent. More importantly, the applicant must state
the reasons why he claims that he cannot be afforded substantial redress at
a hearing in due course”.
[4] In other words, urgency must be considered together with the issue of whether
there will be substantial redress at a later hearing if the matter is not heard on
an urgent basis.
[5] In this particular matter, this application is today brought before court on urgent
basis for non-compliance with the court order viz contempt of court order. The
applicants aver that the respondents have not complied or are in contempt of court
order.
1 (11/33767) [2011] ZAGPJHC 196 at par 6.
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[6] It must be said that there is accordingly no class of proceedings that enjoys
inherent preference. It is my view that counsel appearing in urgent court would do
well to put the concept of inherent urgency out of their mind, remember, of course,
as I said earlier on matters that deserve urgency.
[7] In this particular matter, the contempt of court is by its nature urgent but the
court has got to be very much circumspect when considering the non -compliant with
the court order.
[7.1] Firstly, as to whether those that are alleged to have not complied with the
court order did, they have knowledge of same, was the court order served on them
personally, do they know what exactly they are supposed to do;
[7.2] Secondly, when the applicant contends that there is a fragrant contempt of the
court order, he must show it to this court sufficiently how they have been in contempt
of the court order.
[8] It is sometimes said that the contempt of court proceedings is inherently urgent
in this regard see, Rustenburg Platinum Mines v Lesojane (UM44/2022) [2022]
ZANWHC 36 (21 June 2022) at par 7 and Gauteng Boxing Promoters Association v
Wysoke (22/6726) [2022] ZAGPJHC 18 (28 April 2022) at par 14). I do not think that
can be true as a general proposition that the contempt of court proceedings is
inherently urgent. I accept that the enforcement of a contempt of a court order may
well qualify as urgent, i n situations where time is of essence.
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[9] But it seems to me that contempt of court proceedings entails the exercise of
power which often demand the kind of careful and lengthy consideration which is
generally incompatible with urgent proceedings, for example, it cannot be sound
judicial policy to commit someone to prison even where the committal is suspende d
or to impose a fine on an urgent basis simply because that might be the only way to
enforce the court order. [My emphasis], there must, in addition, be some other
feature of the case that rend er it essential that the court order be instantly enforced
such that the penalties associated with the contempt require immediate impositions.
[10] In cas u, from the reading of the founding affidavit ad the contempt of court
proceedings, the applicant says he saw the respondents being in contempt of the
court order and he relies on ANNEXURE E, which is a picture, that depicts a number
of employees clad in overalls, whose fascial appearance is not clear. Other than that,
there is nothing from the applicant founding affidavit that clearly demonstrate to this
court how exactly did the respondents contravene the court order and/or be in
contempt of the court order.
[11] I cannot accept the submissions made by the counsel for the applicant that the
sheriff’s return further, explain and strengthens the applicant’s case by way of the
return of service to the effect that they were served on the respondent personally,
that they were served at their place of employment . No where on the return of
service does it indicate that each of these respondents did see the court order, same
court order which we are here today about, being not complied with.
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[12] It is the court’s view that from the reading of the applicant’s founding affidavit,
there is a fundamental point that has not been alleged. The applicant has not alleged
that there is any imminence and depth of harm that he will suffer if the relief so ught is
not granted. There is nowhere in his founding affidavit where he alleges same.
[13] The court unfortunately is constrained to find that this application does not
deserve to be heard on urgency and, secondly, the fact that the applicant has not
successfully convinced this court as to how have the respondents contravened and
or being in contempt of the court order save by only alluding to a picture, which
picture upon proper scrutiny one cannot d ecipher who is who on that picture. That
information is the basis upon which the applicant builds its case.
[14] It is this court’s view that the claim by the applicant of contempt of court order
based on ANNEXURE E, which is the photograph of seven men whom none are
identifiable, which is unclear. This court cannot rely on that photograph to conclude
that indeed the respondents are in contempt of court order.
[15] It is this court’s strong view that the submissions made by the applicant’s
counsel, that the applicant has not succeeded;
1. in convincing the court that this application is urgent;
2. That the facts pleaded on the applicant’s affidavit proves that indeed the
respondents have been in contravention and /or are in contempt of the court
order looking at the four corners of the applicants founding affidavit.
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[16] As a consequence thereof, this application falls to be struck of from the roll for
lack of urgency.
Order
Accordingly , I make the following order: -
( 1 ) The applicant's urgent application be and is hereby struck from the roll for lack
of urgency.
(2) The applicants shall pay the responde nt's costs for the urgent
application on attorney and own client scale jointly and severally.
J YENDE
ACTING JUDGE OF THE HIGH COURT
GAUTENG DIVISION , PRETORIA
This judgment was prepared by YENDE AJ. It is handed down electronicafly by
circulation to the parties/their legal representatives by e-mail and uploaded on
Caselines electronic platform and by publication of the judgment to the South African
Legal Information Institute. The date for hand-down is deemed 26 February 2025.
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Appearances:
Advocate for Applicant (s): I Mureriwa
Instructed by: S E Kanyoka Attorneys
Advocate for Respondent(s) : Z Schoeman
Instructed by : Kgosana Attorneys
Heard: 26 February 2025
Delivered: 26 February 202 5