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IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION, MTHATHA)
CASE NO.: 2025 -088899
In the matter between:
MINISTER OF POLICE Applicant
and
MACEBO QWELA 1st Respondent
BULELANI MAMKELI 2nd Respondent
LUYANDA TAFENI 3rd Respondent
SHERIFF OF THE HIGH COURT -
KING WILLIAMS TOWN 4th Respondent
REASO NS FOR JUDGMENT
ZONO AJ:
Introduction
[1] The applicant approached the court by way of urgency. Notwithstanding
applicant’s request made in the certificate of urgency dated 10th June 2025
that the applicant be heard on 11th June 2025 at 14:15 and that papers be
served by 17:00 on 10th June 2025 , it was directed that this matter be heard
on 12th June 2025.
[2] The applicant sought interim relief in his notice of motion in the following
terms:
“2.1 That the warrant of executi on issued on 04 March 2025 in favour of the
first to fourth respondent s against the applicant emanating from the
action issued in the Regional Court of Idutywa under case numbers
09/23; 10/23; 11/23 and 12/23 be and are hereby stayed pending
finalization of the judgment to be brought by the applicant.
2.2 That the applicant shall launch the application referred to in paragraph
2.1 hereof within 15 days from the date of this order.
2.3 Interdicting and restraining anyone from acting in furtherance of the
warrant of execution referred to in paragraph 2.1 above.
2.4 That the fifth respondent be and is hereby directed to release to the
applicant two motor vehicles with registration letters and numbers B[...]
and J[...], as well as any other goods or items belonging to the
applicant that were removed on 10th June 2025 pursuant to the
attachment.
2.5 That upon the release and delivery to the applicant of the motor
vehicles referred to in paragraph 2.4 above and any other goods
removed from the applicant, the applicant be and is hereby directed not
to dispose of th e said motor vehicle or item pending the final
determination of this matter ” (sic).
[3] The applicant sets out the ground for urgency both in the certificate of urgency
and the founding affidavit thus:
“ If this matter is not heard by this honourable cou rt, I submit that the
applicant will not be afforded a redress in a hearing in due course
because by then, he would have suffered an irreparable harm”( sic).
[4] The ground for urgency is underpinned by the following common cause facts :
Pursuant to the default judgment having been obtained in the amount of R260
000.00 in the Regional Court of Idutywa, a warrant of execution was issued
out of the same court. The sheriff of the court , armed with warrant of
execution, attached applicant’s movable property consisting of the office
furniture and equipment together with two motor vehicles. There is no clear or
dim indication in the founding affidavit as to the times when the aforesaid
were done. The only thing that is crystally clear, w hich permeated through to
the argument i n court on the date of hearing is that, applicant’s legal
representatives received instructions on 10th June 2025. This date happened
to be the same d ate of removal of applicant’s movable assets. .
[5] I may digress and state that the default judgment appears to have been
obtained on the 26th June 2024. The warrants of execution were issued on
03rd April 2025. Applicant’s property aforesaid was attached and inventoried
on 11th April 2025. The attached movable properties were removed on 10th
June 2025. All of these dates, except the date of removal are found , not in the
founding affidavit, but in the annexure s. It suffices to mention that such
important non -disclosure leaves much to be desired.
[6] The only reas on the applicant did not defend the action in the R egional court
is because the poli ce docket went missing during the refurbishment at Idutywa
Police Station. The docket was found on 20th May 2025 after the judgment
had bee n obtained, but before the removal of the attached movable assets. It
was only after the docket had been found that the applicant became aware of
his Department’s defence.
[7] The matter was opposed by the first to fourth respondents. In doing so the
respondents delivered their notice to oppose and answering affidavit deposed
to by their attorney, Mvume Vitshima. The deponent in the answerin g affidavit
alludes to the fact that applicant’s movable assets were attached on 11th April
2025 and further state th at there is no justification that the application was not
launched immediately after the attachment. He concludes by saying that
applicant’s alleged urgency is self -created.
[8] After hearing both Counsel on 12th June 2025 I struck this matter fro m the r oll
for lack of urgency with costs . On 25th June 2025 I received applicant’s
request for reasons for such an order. The request was apparently filed on
23rd June 2025. I am now furnishing the requested reasons hereafter.
Discussion and A nalysis
[9] In Mphahlele1 the Constitutional C ourt remarked thus:
“[12] There is no express constitutional provision which requires judges
to furnish reasons for their decisions. Nonetheless, in terms of section
1 of the Constitution, the rule of law is one of the founding values of our
democratic state, and the judiciary is bound by it. The rule of law
undoubtedly requires judges not to act arbitrarily and to be
accountable. The manner in which they ordinarily account for their
decisions is by furnishing reason s. This serves a number of purposes.
It explains to the parties, and to the public at large which has an
interest in courts being open and transparent, why a case is decided as
it is. It is a discipline which curbs arbitrary judicial decisions. Then, too,
it is essential for the appeal process, enabling the losing party to take
an informed decision as to whether or not to appeal or, where
necessary, seek leave to appeal. It assists the appeal court to decide
whether or not the order of the lower court is co rrect. And finally, it
provides guidance to the public in respect of similar matters. It may well
be, too, that where a decision is subject to appeal it would be a
violation of the constitutional right of access to courts if reasons for
such a decision wer e to be withheld by a judicial officer”.
1 Mphahlele v First National Bank of South Africa Ltd 1999 (2) SA 667 (CC), 1999 (3) BCLR 25
3(CC) Para 12 .
[10] It is elementary that litigants are ordinarily entitled to reasons for a judicial
decisions following upon a hearing, and when a judgment is appealed, written
reasons are indispensable. Failure to supply them will usually be a grave
lapse of duty, a breach of litigants ’ rights and an impediment to the appeal
process2. Judges ordinarily account for their decisions by giving reasons and
the rule of law requires that they should not act arbitrarily and that they be
accountable. Judicial accountably impels the judicial officers to account to the
parties in a litigation and to the public at large through their judgments3. The
core principle of the rule of law includes the right of a litigant to be given
reaso ns by a court.4 Absent such a right, transparency is cloaked in darkness,
accountability is honoured in the breach5.
[11] For a proper context , applicant’ s entire case is about staying the warrant of
execution issued on the 04th March 2025. Th ere is absolutely no relief sought
for the interdict of the impending sale of the attached and removed applicant’s
movable assets. This distinction is important because the two distinct legal
processes took place at two separate and distinct periods. As st ated above,
the warrant of execution was issued on 04th March 2025, and removal of the
applicant’s movable assets only took place on 10th June 2025.
[12] The applicant became aware or ought reasonably to have been aware of the
warrant s of execution issued on 04th March 2025 on 11th April 2025 when the
sheriff visited its Griffiths Mxenge offices at Zwelitsha for attachment. On this
date applicant’s movable assets were attached and inventorised and that
inventory was apparently left at the applicant’s offic es. The inventory was
annexed in the applicant’s founding papers . Nothing appear to h ave been
done by the applicant s ince the date of attachment and inventory. No
explanation has been made for this delay as this application was only
instituted on 11th June 2025 .
2 Strategic Liqour Services v Mvumbi NO and Others 2010(2) SA 92 (CC) Para 16 .
3 Tom v S (Appea l) (CA &R/ 2025) [2025] ZAECBHC 13 (12 June 2025) Para 16 .
4 GMSA Financial Services: A division of West Bank: A Division of First National Bank Limited
v PBF Investors (Pty) Ltd. and another (2358/2017) [2019 ] ZAECMHC 15 (12 March 2019) Para
5- per Mbenenge JP .
5 M v M (20350/2012) [2015] ZAWCHC 197 (24 November 2015) per Davis J.
[13] On 20th May 2025 the applicant found the long missing docket and became
aware of his defence. The applicant again, does not explain the impediment to
the institution of these proceedings immediately after he became aware of his
defence. The applicant only acted when the respondents decided to remove
the attached goods. Again, there is no explanation for this late reaction. The
first to fourth respondents are justified in contending that the urgency alleged
by the applicant is self -created. It is so because, t he warrants of execution
that are sought to be stayed were issued on 04th March 2025 and became
known or ought reasonably to have been known by the applicant on 11th April
2025 when the sheriff went to attach and inventorise applicant’s movable
assets.
[14] During hearing of this mat ter applicant’s Counsel limited himself only to the
fact that if the warrant of execution is not stayed, there is a substantial
injustice that will be suffered by the applicant as the removed movable assets
will have sold when this application is finalized in a long form. That cannot by
any stretch of imagination revive or bring back the lost urgency, especially in
the light of the fact that there is no explanation for such long delay. Applicant’s
concerns ma y be addressed by invocation of the practice rules relating to the
application for a preferential date to the Judge Pres ident or Deputy Judge
President th rough the office of the registrar, if so minded. Invocation of thos e
rules will afford applicant redress at a hearing in due course.
[15] It is well established that the applicant cannot create its own urgency by
simply waiting until the normal rules can no longer be applied6. A point must
be clearly made that the Rules should be obeyed and the inte rest of the other
party and his lawyers should be accorded proper respect and the matter must
be looked at to consider whether the case is such a time or not7. Rule 45A of
the Uniform Rules of Court provides for suspension of orders by the court. It is
6 Ngquma and another v Staas President; Damon’s No v State President; Jooste v State
President 1988 (4) SA 224 a t 243 D -E; Sokhani Development & Consulting Engineers (Pty) Ltd
v Alfred Nzo District Municipality (1254/2024) [2024] ZAECMKHC 44 (26 April 2024) Para 12 .
7 Nelson Mandela Metropolitan Municipality & Others v Greyvnouw CC & Others 2004 (2) SA 81
(SC) Para 38.
in the context of this Rule that Mr Mwelase for the applicant submitted that
substantial injustice will ensue if an order is not granted on urgent basis. A
case for an order to be granted on urgent basis must be made out in terms of
Rule 6 (12) (b) of the Un iform Rules of Court. No such case has been made
out both in the papers and during the oral submissions.
[16] As I conclude, it is apposite to be reminded of the words of Cameron J8 when
the Constitutional Court was dealing with citizens’ rights and gove rnment
Department: he had this to say:
“[82] All this indicates that this Court should not decide the validity of
the approval. This would be in accordance with the principle of
legality and also, if applicable, the provisions of PAJA. PAJA
requires that the government respondents should have applied
to set aside the approval, by way of formal counter -application.
They must do the same even if PAJA does not apply. To
demand this of government is not to stymie it by forcing upon it a
senseles s formality. It is to insist on due process, from which
there is no reason to exempt government. On the contrary,
there is a higher duty on the state to respect the law, to fulfil
procedural requirements and to tread respectfully when dealing
with rights . Government is not an indigent or bewildered litigant,
adrift on a sea of litigious uncertainty, to whom the courts must
extend a procedure -circumventing lifeline. It is the Constitution’s
primary agent. It must do right, and it must do it properly.”
[17] The applicant failed to follow the rules of procedure designed to be the vehicle
delivering speedy resolution of proceedings. It is reiterated that Rule 6 (12) (b)
of the Uniform Ru les of C ourt has not been complied with.
8 MEC for Health, Eastern Cape and Another v Kirland Investments (Pty) Ltd 2014 (3) SA 481
(CC); 2014 (5) BCLR 547 (CC) Para 82 .
[18] It is therefore in these circumstances that I struck the application from the roll
with costs. I was and am still satisfied that an order striking the matter from
the roll was justified.
__________________ ______________
A.S ZONO
JUDGE OF THE HIGH COURT (ACTING)
APPEARANCES:
For the Applicant : MR MWELASE
Instructe d by : B. MWELASE ATTORNEYS
Suite 201B, 1st Floor
City Centre Complex
York Road
Tel: 067 180 0045/047 050 4938
Email: mwelasebon gile@gmail.com
Ref: BM/M.10 -2025
For the 1ST to 4th Respondents : ADV JIKWANA
Instructed by : VITSHIMA ATTORNEYS
101 King Street
Idutywa
Email: mvumev@telkomsa.net
C/O : A.W CHOPHA INC.
No 67 Blakeway Road
Mthatha
Tel: 047 431 0185
Email: reception@awchophainc.co.za
Date matter heard : 12th June 2025
Date order issued : 12th June 2025
Date reasons sought : 23rd June 2025
Date rea sons furnished : 08th July 2025