JUDGMENT
BOTSI -THULARE AJ
Introduction
[1] This is an urgent application in which the applicant, Imologa Community Project
(NPO), seeks a mandatory interdict compelling the third respondent to provide a
closing report or formal confirmation that the alleged pending case has been
concluded. Further, r eview and setting aside of the decision disqualifying the
applicant from funding for the 2025/2026 financial year.
[2] The first respondent is the Minister of Social Development. The second
respondent is Member of Executive Council for Social Development in the North
West Province. The third respondent is the Head of the Department of Social
Development in the North West P rovince.
[3] The urgent application is opposed by the respondents. In this regard, the
respondents rely on the following grounds:
a. The applicant has not established urgency.
b. This court lacks jurisdiction against the second and third respondent.
c. This application ought to be dismissed on the basis of misjoinder.
d. The applicant failed to exhaust internal remedies.
[4] Before dealing with the issues , it is appropriate to provide a summary of the
parties submission before this court .
Applicant’s submission s
[6] The applicant submits that in 2021, funds for the 2020/2021 period were
belatedly paid by the respondents , leaving the applicant with insufficient time to
use them, resulting in a refund of R274 000.00. In this regard, the applicant
contends that d espite the refund, the respondent continued to fund the applicant
in subsequent years but later rejected its 2024/2025 and 2025/2026 applications
based on a purported pending investigation .
[7] According to the applicant, the respondents never informed the applicant about
the nature of the investigation and did not afford the applicant an opportunity to
respond . Having said that, the applicant alleges that it provided full cooperation
and submitted all relevant documents, including proof of repayment of the
R274 000.00.
[8] The applicant alleges that the respondents refuse to close the investigations
despite the applicant having cooperated in every respect. The applicant submits
that the respondents’ refusal to confirm a closed investigation lacks a legal basis
and constitutes administrative irrationality.
[9] The applicant submits that it has a clear and constitutionally protected right to
apply for funding and to have such application considered fairly. Accordingly, the
applicant argues that t he ongoing denial of funding and refusal to issue the
closing report has caused irreparable harm to the applicant’s operations,
beneficiaries, and reputation .
[10] The applicant contends that it exhausted internal remedies, including a written
appeal dated 10 April 2025 and follow -ups on 5 June 2025. However, t hese were
ignored by the respondents . In other words, the internal appeal process has
proven futile. The respondents has not identified any alternative recourse or
mechanism, nor responded substantively.
[11] The applicants therefore submits that t he impugned decision is reviewable under
section 6(2) of PAJA on grounds of procedural unfairness, arbitrariness,
irrationality, and unconstitutionality. The applicant argues that it was denied the
right to make representations, contrary to section 33 of the Constitution.
[12] Regarding urgency, the applicants argues that the matter is inherently urgent
because it is at risk of losing access to funding for the 2025/2026 financial year,
which will result in immediate termination of essential services to vulnerable
communities. Furthermore, t he delay by the respondents, after numerous follow -
ups and formal appeal demands, justifies the invocation of Rule 6(12)(a) of the
Uniform Rules .
[13] Lastly, the applicant argue that a ny further delay will result in permanent closure
of the applicant’s programmes, with irreparable harm to the community .
Furthermore, i f this matter is not heard as one of urgent matters, by the time
when the applicant follow the normal roll, the financial year for funding 2025 will
have been ended. The application is urgent, and the applicant has no other
recourse than to seek judicial intervention to protect its operations and the
constitutional rights of the benefic iaries it serves.
Respondents submissions
[14] The respondents submit that t he applicant knew on 22 April 2024 that its
application for funding has been declined due to financial mismanagement and
for failure to file audited financial report. Yet the applicant failed to take any steps
to submit audited financial reports nor to await the finalisation of its director’s
criminal case.
[15] The respondents contend they are required by the Public Finance Management
Act 1 of 1999 to take appropriate actions to avoid fruitless and wasteful
expenditure. In addition, section 4 of the Prevention of Organized Crime Act,
1998 makes it a crime for the respondents to continue funding the applicant
where they suspect or ought to have known that its property forms part of
unlawful activities.
[16] In this regard, the respondents has already been informed that the applicant’s
director Tebogo Olifant send excess rent payment to the landlord and request
the latter to deduct his money and send the remainder to his personal bank
account. Further, the applicant was not submitting its audited financial report and
breached clause 6.1.2 of the service level agreement by failing to return
R40 000.00 unspent money for 2022/23 financial year.
[17] Furthermore, t he applicant’s director has a criminal case where he mismanaged
R90 000.00 and a criminal case to that effect is pending. But even worse, the
applicant’s director conducts the applicant as a private company and refuses any
guidance from the respondents .
[18] The respondents therefore argues that it is on the basis on the above -mentioned
facts that the respondents decline d the applicant’s application for funding for
2025/2026 just like it declined the application for funding for 2024/2025.
[19] The respondents submit that the decision to decline the applicant’s funding seeks
to vindicate the rule of law, promote accountability, and protect the public fiscus.
These are quintessential matters of public interest. Therefore , any prejudice or
harm that the applicant may suffer is far outweighed by the public interest in
restoring legality, particularly where public funds are concerned.
[20] In response to the applicant’s arguments on urgency, the respondents submit
that the applicant has not established urgency. To this end, the respondents
argues that the applicant’s application for funding for 2024/2025 financial year
was also declined on 22 April 2024 on the similar reasons provided on 30 May
2025 i.e. that the applicant has failed to submit audited financial report, that it
has committed financial mismanagement and that there is a pending case
against it which has not been closed.
[21] Against this background, the respondents contend that the applicant has been
having complete knowledge of the facts which led to its application for funding
being declined for fifteen months (i.e. since April 2024) and yet did nothing to
remedy the issue.
[22] The respondents therefore contend that this application is not urgent by any
stretch of imagination. Accordingly, they submit that this matter must be struck
off the roll with punitive costs for lack of urgency.
Issues
[23] Against this background, this court must determine the following issues:
a. The point in limine raised (by the respondents) w hether this court has
jurisdiction over this matter (in particular against the second and third
respondent ).
b. If the answer to the point in limine above is in the positive, whether this
matter is urgent.
c. If yes, whether the applicant has exhausted internal remedies.
d. If yes, whether the applicant has made up a case on the merits for the relief
sought.
Jurisdiction
[24] As a point in limine , the respondent contended that this court does not have
jurisdiction over the second and third respondents as they are not domiciled
within this court’s jurisdiction . Furthermore, the respondents argues that the
applicant’s main relief are sought against the third respondent who also falls
within the jurisdiction of the North West High Court.
[25] Conversely, the applicant contends that this court has jurisdiction to hear this
matter. The applicant argues that t he principal place of business of the first
respondent is situated in Pretoria, Gauteng. Jurisdiction is accordingly
established based on the residence of the respondents, the location of the cause
of action, and the rules relating to attachment and situs of government authority.
[26] I am inclined to agree with the applicant on this point. In my view, this court has
jurisdiction to hear this matter on the basis that it has jurisdiction over the first
respondent. It may be that the second and third respondents are not located
within th e jurisdiction of this Court but the fact that the first respondent is party to
this matter bestows upon this court the power to adjudicate this matter.
[27] Accordingly, I am of the view that the point in limine raised by the respondents
should fail.
Urgency
[28] Now that I have concluded that this court has jurisdiction to hear this matter, I
proceed to deal with the issue whether urgency has been established. Urgent
applications are brought when an applicant cannot wait for a matter to be dealt
with in the ordinary course, where time is of the essence and urgent relief is
required. Bringing an urgent application is an extraordinary measure, which is
why there are stringent conditions that must be met in order to bring one
successfully.
[29] It is therefore imperative that the applicant in urgent application should set forth
explicitly the reasons why the matter is urgent. Self -created urgency does not
entitle a particular applicant 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.
[30] 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.
[31] The court’s power to condone non -compliance with the rules and to accelerate
the hearing of a matter should be exercised with judicial discretion and in the light
of sufficient and satisfactory grounds being shown by the applicant. There are
three major considerations1:
a. The prejudice that the applicant may suffer by having to wait for a hearing
in the ordinary course.
b. The prejudice that other litigants might suffer if the application were to be
given preference.
c. The prejudice that the respondents might suffer by the abridgment of the
prescribed times and an early hearing.
[32] The rule requires two legs to be present before urgency can properly be founded,
namely; first, the urgency should not be self -created2 and secondly, it must
provide reasons why substantial relief cannot be achieved in due course.
[33] The Court in East Rock Trading 7 (Pty) Ltd v Eagle Valley Granite (Pty) Ltd3
stated:
1 IL & B Marcow Caterers (Pty) Ltd v Greatermans SA Ltd and Another 1981 (4) SA 108 (C) at 112H -
113A
2 Nelson Mandela Metropolitan Municipality v Greyvenouw CC [2003] ZAECHC 5; 2004 (2) SA 81 (SE)
paras 23, 33 -34, and Rokwil Civils (Pty) Ltd and others v Le Sueur N.O and others [2020] ZAKZDHC
61 paras 16 -19.
3 East Rock Trading 7 (Pty) Ltd and another v Eagle Valley Granite (Pty) Ltd and others [2011]
ZAGPJHC 196 para 6.
“The import thereof is that the procedure set out in rule 6(12) is not there 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
claim s 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 appli cation in due course. The rules allow the court to come to the assistance
of a litigant because if the latter were to wait for the normal course laid down by
the rules it will not obtain substantial redress.”
[34] 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
immedia te 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.
[35] De Wit,4 in his article discussing East Rock Trading , with regards to the harm the
applicant may suffer where the matter is not dealt with on an urgent basis, wrote
as follows:
“…. harm does not found urgency. Rather, harm is a mere precondition to urgency.
Where no harm has, is, or will be suffered, no application may be brought, since
there would be no reason for a court to hear the matter. However, where harm is
present, an applic ation to address the harm will not necessarily be urgent. It will
only be urgent if the applicant cannot obtain redress for that harm in due course.
Thus: harm is an antecedent for urgency, but urgency is not a consequence of
harm.”
[36] The High Court in Roets N.O. v SB Guarantee Company (RF) (Pty) Ltd5
regarding the explanation that the application must furnish as to why the matter
is urgent and cannot be brought be in the ordinary course, held:
“urgency which is self -created in a sense that an applicant sits on its laurels or
take its time to bring an urgent application can on its own lead to a decision that a
4 V de Wit ‘ The correct approach to determining urgency ’ (2021) 21(2) Without Prejudice 12 at 13.
5 Roets N.O. and another v SB Guarantee Company (RF) (Pty) Ltd and others [2022] ZAGPJHC 754
para 26.
matter is struck off the roll. It would of course depend on the explanation provided
but if the explanation is lacking and does not cover the full period from when it was
realised, or should have been realised, that urgent relief should be obtained. If thi s
criteria to strike a matter from the roll is not available to a court, a court would be
compelled to deal with an urgent application where for instance nothing was
forthcoming for weeks or months and a day or two before an event was going to
take place a party who wants to stay that event can approach a court and argue
that if an order is not immediately granted such party would not obtain substantial
redress in due course. If this is the approach to be adopted by a court there exist
no reason why any exp lanation for the delay should be provided at all. An applicant
only have to show that should interim relief not be granted it will suffer irreparable
harm.”
[37] The Supreme Court of Appeal in Commissioner, South African Revenue
Services v Hawker Air Services (Pty) Ltd; Commissioner, South African Revenue
Services v Hawker Aviation Partnership and Others6 stated that:
“… Urgency is a reason that may justify deviation from the times and forms the
Rules prescribe. It relates to form, not substance, and is not a prerequisite to a
claim for substantive relief.”
[38] In other words, once an applicant has established that it will not obtain
substantive redress at a hearing in due course, the court concerns itself with the
question of whether the abridgement of time periods from those ordinarily
prescribed by the Rules is commensurate with the urgency with which the
redress require.
Reasons for the decision
[39] On a proper analysis of the parties submissions , it is clear that the applicant was
aware from as far back as April 2024 that the respondents were investigating the
applicant’s director Tebogo Olifant as well as the applicant’s failure to submit its
audited financial report . The applicant was also aware that this was the main
reason why its application for 2024/2025 was declined. In other words, the
6 2006 (4) SA 292 (SCA) at para 9.
applicant knew that the investigation was continuing even at the time it applied
for the 2025/2026 funding from the respondents.
[40] In fact, o n assessing the facts and evidence, it cannot be said that the
respondents are simply refusing to act which would constitute a failure to do their
statutory duty. What is apparent from the papers is that there is no refusal to act
rather there is an ongoing investigation into the affairs of the applicant which the
applicant has been aware of since April 2024. In this regard, the applicant could
have at that stage followed the normal court processes or any internal remedies
available to it to challenge the respondents decision to decline its funding.
[41] The applicant further claims that if this matter is not heard as a matter of urgency
the applicant and the community which it serves will suffer harm. by the time
when the applicant follow the normal roll, the financial year for funding 2025 will
have been ended. I disagree with the applicant on this point. In my view, the
applicant has failed to demonstrate how its operations will suffer irreparable harm
when in fact it was not for the first time its application for funding was declined.
[42] What is apparent is that the applicant wants this court to believe that without
legitimate cause or justification the respondents simply refuses to fulfil their
statutory duty to approve the applicant’s funding application . The applicant
further wants this court to accept that its application for 2024/2025 and
2025/2026 funding was declined by the respondents without justification. in my
view this cannot be the case.
[42] In my view, any prejudice or harm that the applicant claims it may suffer is far
outweighed by the public interest in restoring legality, particularly where public
funds are concerned. The respondents have a responsibility to promote
accountability and protect the public fiscus . These are , as correctly argued by
the respondent, quintessential matters of public interest .
[43] Therefore, this court unfortunately is constrained to find that this application does
not deserve to be heard on urgency . It is my considered view that the applicant
has not succeeded in convincing th is court that this application is urgent . In my
view, the applicant
MODE OF DELIVERY: This revised judgment is handed down ele ctronically by
transmission to the parties' legal representatives by email, uploading on Caselines and
release to SAFLII. The date and time for delivery is deemed to be 10 00am.