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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
Case Number: 2025 -028456
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO OTHER JUDGES: YES/NO
(3) REVISED: YES/NO
DATE 20 MARCH 2025
SIGNATURE
In the matter between:
MIKATEKO FLORENCE HLABANGWANE Applicant
and
THE UNIVERSITY OF PRETORIA First Respondent
PROFESSOR WYNAND STEYN Second Respondent
PROFESSOR CAROLINE NICHOLSON Third Respondent
Delivered: This judgment was prepared and authored by the Judge whose
name is reflected and is handed down electronically by circulation to the
parties/their legal representatives by e -mail and by uploading it to the
electronic file of this matter on Caselines . The date for hand -down is deemed
to be 18 March 2025.
JUDGMENT
KUBUSHI, J
[1] The Applicant approached this court on an urgent basis seeking
interdictory relief in Part A , in which she seek s an order for her immediate
readmission to the Bachelor of Engineering ( “B-Eng”) programme at the First
Respondent, the University of Pretoria , (“the University”) pending a review of
the decision of the University from excluding her from continuing with her B-
Eng programme, in Part B . This being the urgent court, urgency must be
decided first.
[2] Urgency is regulated in terms of rule 6(12) of the Uniform Rules of
Court which provides that:
Rule 6(12)
(a) 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 is such manner and in
accordance with such procedure (which shall as far as is
reasonably practicable be in terms of these rules) as it deems fit .
(b) In every affidavit or petition filed in support of any application under
paragraph (a) of this subrule, the applicant must set for th explicitly
the circumstances which is averred render the matter urgent and
the reasons why the applicant claims that applicant could not be
afforded substantial redress in due course .
[3] For the Applicant to succeed in this application she must show why this
application should be heard in the urgent court. In doing so, she must also
show that any delay in launching this application was not because of self-
created urgency . She must also show why she claims she could not be
afforded substantial redress in due course.
Self-created urgency
[4] The Applicant in an attempt to prove that the urgency in this matter is
not self -created , provided the following facts in her founding affidavit:
[5] She alleges that on 20 December 2024 she was informed that she had
been excluded or dismissed from the faculty based on her academic
performance during 2024. According to the EBIT Faculty the reason for the
exclusion is that she had exceeded maximum attempts for her modules in
2021, 2022, 2023 and 2024. She was advised to appeal the decision before
21 January 2025.
[6] On 07 January 2025 she tried to make an appointment with Dr
Raubenheimer to provide her with letters to back up her appeal. However, she
was informed that the doctor would only be available once the University
opens its doors for the 2025 academic year on 10 February 2025. On 30
January 2025, the Faculty Appeal Committee confirmed the decision not to
readmit her.
[7] On 06 February 2025, the Senate Review Committee on Readmission
(hereinafter referred to as the Senate Review Committee) confirmed the EBIT
Faculty's decision not to re -admit her or exclude or dismiss her from the B -
Eng programme. She says she was advised that this decision amounts to
expulsion or dismissal from the B -Eng programme alternatively the faculty or
the University. On 10 February 2025, the University opened its doors for the
2025 academic year. On the same day she booked an online appointment
with Dr Raubenheimer t o provide her with a letter to support her attempts to
have the Committee's exclusion decision overturned or reconsidered. On 12
February 2025 she saw the doctor and the doctor produced two reports dated
12 and 14 February 2025. Copies of Dr Raubenheimer's reports are annexed
to her founding affidavit.
[8] During the week of 14 February 2025 she consulted the University's
Disability Unit for their intervention to request the EBIT Faculty to reconsider
its decision. The D isability Unit informed her that the Senate Review
Committee's decision was final. Prior to the D isability Unit's advice that the
decision not to re -admit her was final she still believed that the U niversity
could still change its decision based on Dr Raubenheimer's report. On 18
February 2025, her parents engaged in an online or virtual meeting with the
Faculty to reconsider its decision without any success. A copy of an email on
the online meeting from her parents to the Dean of the EBIT Faculty is
annexed to her founding affidavit. Whilst her parents requested a meeting with
the Dean of the EBIT Faculty only the Deputy Dean attended. According to
the Appellant t he Deputy Dean , Ms Alta Van Der Merwe , is the one who
denied her a special exam in June 2024. The EBIT Faculty informed her
parents that it was not going to change its decision.
[9] On 20 February 2025, the Appellant consulted the Varsity College
Pretoria Law Clinic for advice because they provide free legal advice, and
they promised to give her feedback. In the evening of the same day , the
Applicant consulted Advocate Lepaku for legal advice as she was not sure
about the Varsity College assistance and to date she still has not received a
response on her application for legal assistance. On 21 February 2025
Advocate Lepaku prepared a letter of demand in which he requested the
University to rescind its dec ision not to admit her , based on new supporting
evidence from Dr Raubenheimer. On 24 February 2024, her legal
representative delivered the letter of demand to the University and gave the
University two days to provide its response. A copy of the letter of demand is
also annexed to the founding affidavi t.
[10] On 25 February 2025, the University replied and stated that the matter
was not urgent and that they will oppose this application. On 26 February
2025 the University made further responses in which they , inter alia , stated
the following: that the Applicant was excluded because of her academic
performance; she does not have a right to approach this court for relief as she
did not perform in accordance with the rules of the University and that they will
be asking for a costs order against her. On 26 February 2025, her legal
representative informed the University that unless the decision not to readmit
was rescinded the Appellant was going ahead with an urgent application to
court to review and set aside the decision as irrational and unlawful.
[11] The University gave the Applicant formal notice of her exclusion on 20
December 2024. Her appeal to the EBIT Faculty Appeals Committee was
refused on 30 January 2025, and the Senate Review Committee confirmed
this decision on 6 February 2025. It is at this time that the Applicant should
have recognised the need for urgent relief . The urgent application was
launched on 3 March 2025 almost a month after the need to approach court
was established.
[12] In the email threat attached to the Applicant’s founding affidavit which is
from the Deputy Dean of the Faculty of Engineering , informing the Applicant
that she has been excluded from the Faculty of Engineering, the Applicant is
further informed that
“You have the option to appeal the exclusion before 21 January 2025.
Please follow the process described at the following link (see README
OVERVIEW): h[...]”
[13] In a letter from the Senate Review Committee dated 6 February 2025
in which the Applicant is informed that the decision of the Faculty not to
approve her readmission has been upheld, the Applicant is further informed
that:
“Please log into your Student Portal to check the Appeals section for
feedback or contact your Faculty Administrator for further assistance.”
[14] This to me is indicative that the Applicant had been informed of what to
do, contrary to her allegation in her papers that she was not given any
assistance or her counsel’s argument that she was a clueless student. She
does not in her papers state whether she follow ed the advice of the Senate
Review Committee and logged into the Student Portal to check the Appeals
section or whether she approached the Faculty Administrator for further
assistance, and did not find any help there.
[15] Instead, she went on a frolic of her own to try and convince the Senate
Review Committee to rescind its decision which they could not do because,
as she concedes, the decision was final. The Disability Unit had already on
14 February 2025 informed her that the decision of the Senate Review
Committee was final . Why she continued to belie ve that she could convince
the Senate Review Committee to change its decision, is unknown . The finality
of the decision rendered the Senate Review Committee functus officio . There
was nothing the Senate Review Committee could do to change its decision .
Her legal representative was also oblique to the fact that the Senate Review
Committee having given its decision , was functus officio . On receipt of
instructions from the Applicant he followed the same route that the Applicant
had already undertaken without success.
[16] My vie w is that had the Applicant heeded the advice given to her by the
Committee and taken time to log into the Student Portal or contacted the
Faculty Administrator, she would have found her answers there. She instead
wasted time looking for the doctor to draft a report in support of what she
thought would help convince the Committee to rescin d its decision . I have, as
such, to hold that the delay of almost a month that the Applicant wasted
looking for something that would not assist her, caused the urgency. As such,
the urgency , if any, is self -created.
Substantial redress in due course
[17] As regards being afforded substantial redress i n due course, in M M v
N M and Others ,1 the court remarked that
“[6] Notshe AJ in East Rock Trading 7 (Pty) Ltd v Eagle Valley
Granite (Pty) Ltd ,2 stated:
‘The import thereof is that the procedure set out in rule 6(12) is
not there for the 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. The question of whether a matter is
sufficiently urgent to be enrolled and heard as an urgent
application is underpinned by the issue of absence of substantial
redress in an application in due course. The rules allow the court
to come to the assistance of a litigant because if the latter were
1 (15133/23P) [2023] ZAKZPHC 122 (18 October 2023) .
2 [2011] ZAGPJHC 196 para 6 and 7 .
to wait for the normal course laid down by the rules it will not
obtain substantial redress.’
[7] The import of this is that the test for urgency begins and ends
with whether the applicant can obtain substantial redress in due
course. It means that a matter will be urgent if the applicant can
demonstrate, with facts, that the applicant requires immediate
assistance from the court, and that if his application is not heard
on an urgent basis that any order that he might later be granted
will by then no longer be capable of providing him with the legal
protection he requires. ”
[18] The court in E.M.W v S.W3 stated that –
“[11] It is trite that the correct and the crucial test to be applied in
urgent applications and confirmed that it is the true test is
whether or not an applicant will be afforded substantial redress
in due course. (See the matter of E ast Rock Trading 7 (Pty)
Ltd and Another v Eagle Valley Granite (Pty) Ltd and Others
(11/33767) [2011] ZAGPJHC 196 (23 September 2011).This in a
nutshell means, if the matter were to follow its normal course as
laid down by the rules, an Applicant will be afforded substantial
redress. If he cannot be afforded substantial redress at a
hearing in due course then the matter qualifies to be enrolled
and heard as an urgent application. It means that if there is
some delay in instituting the proceedings, an applicant has to
explain the reasons for the delay and why despite the delay he
claims that he cannot be afforded substantial redress at a
hearing in due course. ”
[19] The Applicant ’s contention is that she will not be able to obtain
substantial redress in the interim pending final determination of the review
application under part B.
3 (26912/2017) [2023] ZAGPJHC 710 (15 June 2023)
[20] It has been held that o rdinarily , "in due course " typically refers to a
matter being dealt with in its normal, regular, and expected manner, rather
than urgently or exceptionally. It suggests that redress will be available
through the normal legal process if the matter is not dealt with urgently . The
rule requires substantial redress in due course , that the Applicant will not be
afforded substantial redress in the interim is not what is required by rule
6(12) (b). The Applicant has applied for the review of the University’s decision
in Part B of the application, which follows that she will still get substantial
redress in due course. Therefore, the Applicant has failed to establish that
requirement of substantial redress in due course.
The type of relief sought
[21] What further makes this application not urgent, is the type of relief the
Applicant seeks. The relief , if granted, will have the effect of tempering with
the decision of the University that the Applicant seeks to review and set aside
in Part B of the application.
[22] The relief the Applicant wants in prayer s 2 and 3 of the notice of motion
is for this court , pending the final determination of the relief sought in Part B of
the notice of motion , to direct the Second Respondent , Professor Wyanand
Steyn, the Dean of the Faculty of Engineering, to re-admit the Applicant and to
allow her to register for the Bachelor Degree in Civil Engineering in the
Faculty of Engineering, Built Environment and Information Technology. The
challenge for the Applicant is that the relief cannot be granted whilst the
decision of the University made by the Senate Review Committee , is still
extant.
[23] The Constitutional Court in Economic Freedom Fighters v Gordhan and
Others; Public Protector and Another v Gordhan and Others4 remarked that
“[47] Turning to the present matter, it should be borne in mind that
both applicants seek urgently to appeal an interim interdict,
which is purely interlocutory in nature . An interim interdict is a
4 [2020] ZACC 10 .
temporary order that aims to protect the rights of an applicant,
pending the outcome of a main application or action It attempts
to preserve or restore the status quo until a final decision
relating to the rights of the parties can be made by the review
court in the main application. As a result, it is not a final
determination of the rights of the parties . It bears stressing that
the grant of an interim interdict does not, and should not, affect
the review court’s decision when making its final decision and
should not have an effect on the determination of the rights in
the main application . The purpose of an interdict is to provide an
applicant with adequate and effective temporary relief.” (footnote
omitted)
[24] The status quo in this matter, which the interdictory relief should
preserve or restore until the review application has been finally decided , is the
Applicant’s exclusion from the University . It should not be the final
determination of the rights of the Applicant to be readmitted to the Engineering
Faculty , as the Applicant seeks to do in this application , despite the pending
review . If this court directs that the Applicant be allowed to register with the
University, it will be tantamount to it setting aside the Univers ity’s decision
which the Applicant seeks to set aside in Part B of the application . As
emphasised in Economic Freedom Fighters , the grant of an interim interdict
does not, and should not, affect the review court’s decision when making its
final decision and should not have an effect on the determination of the rights
in the main application. This in a sense makes this application not urgent.
[25] Consequently, the application is struck from the roll for lack of urgency
with no order as to costs .
E M KUBUSHI
JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
APPEARANCES:
For the Applicant: Adv M Khanyeza & Adv M Lepaku
Instructed by: Moabi Attorneys
For the First Respondents: Adv E J J Nel
Instructed by: Anton Bakker Inc
Date of the hearing: 13 March 2025
Date of judgment : 20 March 2025