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IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
Case No. 2025-040036
1. REPORTABLE: NO
2. OF INTEREST TO OTHER JUDGES: NO
3. REVISED: NO
DATE : 25 April 2025
SIGNATURE
In the matter between:
M[...] : O[...] K[...] M[...] Applicant
And
M[...] : L[...] M[...] P[...]
MATJEE: TSHEPO JOHANNES
First Respondent
Second Respondent
JUDGMENT
YENDE AJ
[1] This is an opposed enforcement application in terms of section 18 (1) and (3) of
the Superior Courts Act 10 of 2013, in terms of which the applicant seeks an order
that the operation and execution of the order of Justice Mokose of 2 April 20251,
shall not be suspended pend ing final determination of all present and future
applications for leave to appeal or appeals lodged by the second respondent.
[2] The applicant contends that this application is factually in that the second
respondent lodged his application for leave to appeal on 8 April 2025 , this being the
date on which the Justice Mokose order lost its efficacy and the applicant’s urgency
began . Immediately thereafter, on 9 April 2025, the Applicant launched the present
agent application which points to the ap plicant’s promptness in bringing her
application before Court.
[3] The applicant contends further that the Superior Courts Act 10 of 2013 treats the
enforceability of a judgment pending appeal processes as inherently urgent , thus
condoning the applicant’s non -compliance with the prescribed forms, manner of
service and time periods in terms of the Rules of the above the Honourable Court
and permitting this application to be heard as one of urgency in terms of Rule 6 (12)
of the Unifo rm Rules of Court.
[3.1] The applicant contends that she will not obtain substantial redress at a
hearing in due course if the processes of appeal unfold in the ordinary course ,
thus i t is for that reason that the section 18 (3) procedure is therefore
manifestly inherently urgent.
The applicant’s main contentions ad exceptional circumstances are interalia
that:
[4] The applicant was in peaceful and undisturbed possession of immovable
property situated at number 6 [...] M[...] Way, Xanadu Nature Estate, Hartbeespoort,
North -West (“the matrimonial home”). The second respondent dispossessed the
1 Justice Mokose order granted on 2 April 2025 -Spoliation order.
applicant of the matrimonial home by terminating the water and electricity supply as
well as by disconnecting and removing solar equipment mounted on the wall in the
garage for consequent to his non-payment of municipal charges as well as the home
owners’ association levies. The second respondent has been throughout responsible
for payment of same.
[4.1] The applicant is a chronic patient and suffers from a chronic condition.
Her possession of the matrimonial home was surreptitiously spoliated by the
second respondent during her temporary hospitalisation.
[4.2] The applicant urgently needs wat er, electricity and solar equipment to
be restored by the second respondent at the immovable property situated at
number 6 [...] M[...] Way, Xanadu Nature Estate, Hartbeespoort, North -West
(“the matrimonial home”) which has been cut off by the second respondent
while she was hospitalized between the 18 March 2025 until discharged on
Sunday 23 March 2025.
[4.3] Should the Justice Mokose order not be put into operation with
immediate effect, it would result in the second respondent who has unlawfully
spoliated the applicant of her peaceful and undisturbed possession and
occupation of the matrimonial home, benefiting from his unlawful conduct. The
severity of the impact of the suspension of the Mokose J order is catastrophic
on the applicant and two of her minor children whose entire livelihoods and
existence have been in the matrimonial home.
[4.4] The s econd respondent previously launched an application for leave to
appeal an anti -dissipation order granted by Nyathi J in the above Honourable
Court in favour of the Applicant on 27 September 2024, under case number
061379/2024, in connection with the matrimonial home, which application for
leave to appeal the second respondent left dormant until it lapsed. Thus, the
enforcement of Justice Mokose order will incentivise the second respondent
to pursue his appeal with the necessary vigour since he has been
demonstrated to have a tendency of launching applications for leave to appeal
and simply leaving them dormant .
The applicant’s main contentions ad irreparable harm included interalia that:
[5] The Applicant has been deprived of possession and occupation of the
matrimonial home on an ongoing basis, as such, she continuously suffers irreparable
harm and prejudice with each day that passes . That a t the time of the hearing of the
present application, the Applicant would have been deprived of possession of th e
matrimonial home for a full month.
[5.1] The applicant further contends that t he right of possession is inextricably
linked to time in that a period of enjoyment of such a right cannot be restored
after the fact of its deprivation. A period of unlawful spoliation cannot be taken
out of the hands of the second respondent, after that time has passed, to be
handed back to the Applicant .
[5.2] The applicant averred that the second respondent will not suffer any
irreparable harm if the order of Justice Mokose of 2 April 2025, is not be
suspended pending his application for leave to appeal or appeal . That t here
is no impediment to the second respondent bringing eviction proceedings
against the applicant for her ejectment. Should the second respondent so
choose, he may, without waiting for the appeal process to unfold, pursue
eviction proceedings against the applicant alternatively, the second
respondent may also if needs be instituting legal proceedings against the
applicant for the recovery of the outstanding municipal debt that he claims the
applicant has accumulated by virtue of her occupation of the matrim onial
home.
[5.3] The applicant further contends that she will not be able to obtain
substantial redress at a hearing in due course unless the or der sought in her
Notice of Motion to is granted on urgent basis. Since this flows from the
nature of the righ t she sought to vindicate through J ustice Mokose order,
being a possessory right.
SECOND RESPONDENT’S MAIN CONTENTIONS :
[6] The second respondent opposes this application and argues that the applicant is
accommodated by her loving family and is subjected to daily support and warmth of
her family and parents. The second respondent argues further that, the applicant
continues to coex ist with her children and s he is gainfully employed earning a
substantial salary.
[7] More over the second respondent contends that t he applicant owns an
immovable property at 6 [...] B[...] Crescent, Pretoria North, 0182 which is a 3-
bedroom house, with 2 bathrooms, kitchen, sitting room and a double garage which
is unoccupied she can relocate to same. The second respondent does not deny that
the applicant has chronic illness but maintains that the Applicant has a Bestmed
medical aid scheme and therefore her chronic illness is treated by top medical
practitioners and in private medical facilities .
[8] In the main the second respondent complains that he has got no means to pay
for the Municipality debts thus if Justice Mokose order is enforced the second
respondent will be bound to be in contempt of the same court order due to financial
constraints. The second respondent argued that t he applicant failed to join the
Municipality who cut the water and electricity to the matrimonial home, the party to
whom this application ought to have been directed to. As a result of this non joinder,
the entire case before this honourable court falls and must be dismissed with costs.
Legal fram e work.
[9] Section 18 of the Superior Courts Act provides in the relevant part as follows
that
“Suspension of decision pending appeal: -
‘(1) Subject to subsections (2) and (3), and unless the court under exceptional
circumstances orders otherwise, the operation and execution of a decision
which is the subject of an application for leave to appeal or of an appeal, is
suspended pending the decision of the application or appeal.
(2) … … …
(3) A court may only order otherwise as contemplated in subs ection (1) or (2),
if the party who applied to the court to order otherwise, in addition proves
on a balance of probabilities that he or she will suffer irreparable harm if
the court does not so order and that the other party will not suffer
irreparable ha rm if the court so orders.
(4) If a court orders otherwise, as contemplated in subsection (1) —
(i) the court must immediately record its reasons for doing so;
(ii) the aggrieved party has an automatic right of appeal to the next highest
court;
(iii) the court hearing such an appeal must deal with it as a matter of extreme
urgency; and
(iv) such order will be automatically suspended, pending the outcome of such
appeal.
[10] When considering the legal framework mentioned supra it is apposite in section
18(3) of the Superior Courts Act that it allows for the execution of a court order,
despite an appeal, if certain conditions are met. In casu , the applicant is seeking an
order enforcing the order of Justice Mokose which order was obtai ned consequent to
the second respondent having acted unlawfully and in disregard of the law and the
rule of law. The second respondent has noted an appeal against the order of Justice
Mokose which in effect means that the second respondent who has by all accounts,
made himself guilty of self -help, having acted unlawfully and disregarded the rule of
law must benefit from such conduct (Which conduct Justice Mokose has pronounced
on its unlawfulness) cannot and should not be countenanced.
[11] In terms of section 18(3), the applicant(s) seeking enforcement of the order
must prove on balance of probabilities that they will suffer irreparable harm if the
execution of the order is suspended, and that the respondent(s) will not suffer
irreparable harm if the ex ecution proceeds. The court must then weigh up the
potential harm to both parties to determine whether the exceptional circumstances
pleaded warrants allowing the execution to proceed. Lastly the exceptional
circumstances pleaded must be unusual or extraor dinary to justify overriding the
general rule of suspension of orders pen ding the appeal process.
[12] The Supreme Court of Appeal has held that the prospects of success on
appeal, or lack thereof, are an important consideration2. The enquiry as to the
existence of ‘exceptional circumstance’ is a factual one and the court has discretion
to exercise3. In casu , I find that there are exceptional circumstances present in this
matter as mentioned supra . In deed the applicant would suf fer severe irreparable
harm if Justice Mokose Order is suspended pending the appeal process launched by
the second respondent. The second respondent has demonstrated that in the past
he had on ce launched an application for leave to appeal an anti -dissipati on order
granted in favour of the applicant on 27 September 2024 under case number
061379/2024 pertaining to the matrimonial home -which application the second
respondent left dormant until it lapsed.
[13] I have weighed more on this aspect as the same gi ves the court an impression
that the second respondent has also launched the present appeal against Justice
Mokose order in order to have same suspended and later not pursue the appeal
processes until is it dormant. Thus, benefiting from his already prono unced unlawful
conduct. The second respondent have failed to demonstrate that he will suffer
irreparable harm if Justice Mokose order is not suspended save to decry the fact that
he will not be able to pay the Municipality the arrear rates and taxes which issue was
never pleaded during the spoliation application.
[14] I found that when considering the both submissions by the counsel for the
applicant as well as the counsel for the second respondent I am constraint to find
that the applicant has demonstrated that exceptional circumstances exist that entitles
her to an order that the operation of Justice Mokose granted on 2nd April 2025 shall
not be suspended. I am therefore satisfied on the balance of probabilities that indeed
the applicant will s uffer irreparable harm if the relief sought is not granted, further
that the applicant has demonstrated exceptional circumstances entitling her to an
2 University of Free State v AfriForum and Another 2017 (5) SA 402 (SCA) at paragraph(s) 14 -15
3 Incubeta Holdings (Pty) Ltd and Another v Ellis and Another 2014 (3) SA 189 (GJ).
order enforcing the order of Justice Mokose pending the second respondent’s leave
to appeal and appeal.
[15] I found that this matter warrants urgency by virtue of its nature and that indeed
the requirement of Rule 6(12) of the Uniform Rules of the Court has been met.
[12] As the consequence, I make the following order.
Order
1. In terms of section 18(1), read with section 18(3), of Act 10 of 20134, it is
ordered that the operation and execution of the order of Justice Mokose
granted on 2nd April 2025, shall not be suspended pending a final decision on
the second respondent’s app lication for leave to appeal and in the event of
leave to appeal granted, the final outcome of such appeal process;
2. The second respondent shall pay the cost of this urgent application on
attorney and client scale B.
J YENDE
ACTING JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
This judgment was prepared by YENDE AJ. It is handed down electronically 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 25 April 2025 .
Appearances:
4 Superior Courts Act 10 of 2013
Attorney for Applicant : Mr S Twala
From Twala Attorneys Inc
C/O Hack Stupel & Ross Attorneys
2nd floor, Standard Bank Chambers
Church Square, Pretoria
Advoc ate for Second Responden t: P Mafu
Instructed by : Masipa Attorneys.
1027 Stanza Bopape Street
Hatfield, Pretoria
Heard: 23 April 2025
Delivered: 2 5 April 202 5