IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION, BHISHO)
CASE NO.: 2025-163743
Date heard on: 19th September 2025
Date of delivery :25th September 2025
In the matter between:
FIKILE VINCENT HINTSA Applicant
and
MEMBER OF EXECUTIVE COUNCIL,
FOR COMMUNITY SAFETY 1st Respondent
HEAD OF DEPARTMENT
(MR PHIKO MBAMBO) 2nd Respondent
CHIEF DIRECTOR CORPORATE SERVICES
(MR ZUKILE KANI) 3rd Respondent
CHIEF FINANCIAL OFFICER
(NWABISA LIBALA) 4TH Respondent
THE SECURITY MANAGER
(BAFANA NDZWANANA) 5th Respondent
JUDGMENT – INTERIM RELIEF
ZONO AJ:
Introduction
[1] The applicant is the Deputy Director for the Department of Community
Safety, Eastern Cape. He approached this court on urgent basis for a relief
more fully set out in Part A of the notice of motion. It is not necessary to
deal herein with the relief sough t in Part B , save to state that the
applicant therein seeks to review second respondent’s decision contained
in a letter dated 08 th September 2025, terminating and or withdrawing
protection services afforded to the applicant; and some consequential
relief.
[2] In Part A the applicant seeks, on urgent basis, a Rule Nisi calling upon
the respondents to show cause, if any, why the following order should not
be granted.
“2.1 The respondents are interdicted and restrained from withdrawing,
terminating or suspending the provision of protective security measures to the
applicant (being two security personnel and transport ) pending:
2.1.1 The submission by the applicant of his representations in respect
of the termination and withdrawal of his security protection; and
2.1.2 The consideration and final outcome of such representations by
the respondents.
2.3 The respondents shall pay the costs of this application on punitive scale
scale C jointly and severally, the one paying the other to be absolved” (sic).
The Rule Nisi is sought without a suggested return day.
[3] The first respondent is sued as a political head and on the basis that he is
vicariously liable for the wrongs committed by the employees of his
Department when acting within the course and scope of their employment
with the Department of community. The second respondent is cited as an
accounting officer in the Department of Community Safety. The third
respondent is cited as an official who penned a letter advising that
security services would not be afforded to the applicant beyond or after
09th September 2025. Fourth respondent is cited as a functionary in
charge of procurement of security services. Fifth respondent oversees the
security operations of the Department of Community Safety.
[4] The a pplication is opposed and in so doing the respondents have
delivered both the notice to oppose and opposing affidavit accompanied
by the annexures. The applicant had delivered his replying affidavit. This
matter came before court as a matter of urgency on 12th September 2025
and an undertaking was made that the security or protection services to
the applicant would not be withdrawn or terminated pending hearing of
this application (interim relief) on 19 th September 2025. On 19 th
September 2025, after hearin g of this matter, the parties agreed that the
undertaking made on 12 th September 2025 be extended pending this
judgment. It is for that reason Mr Poswa consistently submitted during
the hearing of this matter that the applicant is under protection for 24
hours, seven days a week (24/7).
[5] The facts herein are largely common cause. The applicant was appointed
as District Manager in the respondents’ Department with effect from 01 st
September 2014 and he grew within the ranks of the Department. During
October 2022, the applicant received some threats seemingly arising from
his involvement in the investigations relating to the hijacking of
government buildings in Mthatha. Those investigations resulted in the
arrest, detention and prosecution of some people. Bongani Cikolo,
Zamikhaya Songca, Sic elo Nkqayi and Fezile Potwana allegedly
threatened to kill the applicant if he does not cease his involvement in the
criminal case under CAS No 359/03/2019. The confrontation and threats
allegedly took place in October 2022. Following a Threat and Risk
Assessment Report, the applicant was provided with two protectors
(security guards) and a motor vehicle for his transportation. In August
2023 the applicant received anonymous calls threatening to kill him.
Threats and suspicious men following the applicant c ontinued until 2024.
During December 2024 the applicant was allegedly confronted by a
member of community when they were vising Mthatha and Flagstaff,
who accused him of being responsible for eviction of the occupants
during ECDC operation, but the protectors managed the situation.
[6] The applicant alleges in his founding affidavit further that:
“5.1 I continue to live in constant fear due to:
5.1.1 ongoing threats from known individual (especially
teacher, a known violent taxi boss) living in various places all over the
country;
5.1.2 Three suspects from the hijacking case being out on bail.
5.1.3 Continued sightings of suspects in East London (Some
with businesses in the area).
5.1.4 Lack of trust in the second respondent particularly
after confidential details from my Threat and Risk
Assessment were shared inappropriately” (sic).
The allegations made in paragraph 5.1 of applicant’s founding affidavit
are deemed to have been admitted as they are not disputed 1. I will come
back to these averments later during the course of this judgment,
especially with reference to the fact that the second respondent
inappropriately shared confidential information.
[7] The respondents deal with these allegations in paragraph 28 of their
answering affidavit as follows:
“28 Ad Paragraph 4.1.16 to 5.1.4 thereof
I have no knowledge of the allegations contained herein and can
consequently neither admit nor deny the same. Applicant is put to the
proof thereof” (sic).
A party who does not make a firm repudiation of an allegation when
bound to do so incurs the risk of an adverse inference being drawn
against him2.
[8] This appl ication is opposed basically on two grounds: namely, lack of
urgency, and that there is no case made out for the relief sought in Part A
of the notice of motion. The respondents contended that the applicant has
failed to establish the requisites for the g rant of the interdict. During
hearing of this matter, there was vacillation by respondents’ Counsel;
which vacillation and uncertainty pertained to whether it is the clear right
or prima facie right that needs to be established for a successful interim
relief. I was little taken aback by this approach; looking at the stature and
expected experience of the Counsel concerned.
Urgency
1 Mc Williams v First Consolidated Holdings (Pty) Ltd 1982 (2) SA 1 (A) at 10E-D.
2 Makhuva and others v Lukoto Bus Service (Pty) Ltd and others 1987 (3) SA 376 (V) at 386 E.
[9] During argument, respondent’s Counsel argued that urgenc y is not time
bound and time based. Whatever that means, the Counsel was clearly
understood to be saying the time by and at which an application is
launched vis-a-vis the time when facts giving rise to urgency occurred are
not relevant for purposes of dete rmining urgency. There is absolutely no
merit in this argument. It is well established that the applicant cannot
create its own urgency by simply waiting until the normal rules can no
longer be applied3.
[10] In Spiklin4 Lowe J had the following to say:
“15 An applicant cannot create its own urgency by simply waiting till the
normal rules cannot longer be applied.
16. If the above is satisfied other issues come to be considered, some of which
are:
16.1 Whither respondent can adequately present its case in the
time given.
16.2 Other prejudice to respondent and the administration
of justice;
16.3 The strength of applicant’s case and any delay in asserting its
rights (self-created urgency”).
[11] Rule 6(12) of Uniform Rules of Court regulates time periods within
which certain things must be done. The time therefore is always relevant
to urgent application. Rule 6(12)(a) of URC provides:
“(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 in such manner and in accordance with such procedure
(which shall as far as practicable be in terms of these Rules) as it deems fit”.
Urgent applications involve abridgement of times prescribed by the rules
and departure from established filing and sitting times of the court 5.
3 Ngquma and Another V Staats President; Damons No v State President; Joostee v State President 1988 (4)
SA 224 at 243 D; Sokhani Development and Consulting Engineers (Pty) Ltd v Alfred Nzo District
Municipality (1254/2024)[2024] ZAECMKHC 44 (26 April 2024) Para 12-14.
Municipality (1254/2024)[2024] ZAECMKHC 44 (26 April 2024) Para 12-14.
4 ENX Gropup Limited v Spilkin (2296/2022) [2022] ZAECQBHC 42 (8 November 2022) Para 15-16.
Dilatory cond uct in bringing the application or that urgency was self -
created is a relevant factor to be taken into account in urgent application 6.
In what follows I deal with fact which I deem to be relevant for
determination of urgency. Urgency does not only have a bearing on the
times and periods of certain occurrences, but is also fact bound. It relates
to the facts of a particular case.
[12] The applicant learnt for the first time on 08 th September 2025 that he
would be without security and or protection services . Protection services
would be terminated after the 09 th September 2025. The third respondent
penned a letter dated 08 th September 2025 inter alia, in the following
terms:
“The Department therefore will not extend the protection services to yourself
beyond 09th September 2025. You are however given an opportunity to make a
representation to the Department should you disagree with the termination of
these services” (sic).
On 09th September 2025, applicant’s attorneys penned a letter inter alia,
requesting the respondents to suspend their decision terminating security
and or protection services afforded to the applicant, pending submission
of representations and outcome thereof. No confirmation of suspension of
the decision aforesaid was received by the deadl ine. On 12 th September
2025 this matter was before this court on urgent basis where an
undertaking was made and the matter was further postponed for hearing
on 19th September 2025. I am therefore satisfied that this application was
urgently instituted and made. The matter is sufficiently urgent to be
entertained in this court. Respondents’ point of lack of urgency has no
merit and accordingly cannot be upheld. I deal hereinafter with the merits
of the application.
5 Luna Meubel Vervaarfigers (Edm) Bpk v Makin (t/a Makin’s Furniture Manufactures) 1997 (4) SA 135
(W) at 136 H.
6 Nelson Mandela Metropolitan Municipality v Greyvenouw CC 2004 (2) SA 81 (SE) at 94C-D.
Has the applicant satisfied the requirements of the interim or interlocutory
interdict?
[13] The requirements which an applicant for an interlocutory interdict has
to satisfy are the following7:
“(a) a prima facie right.
(b) a well - grounded apprehension of irreparable harm if the interim
relief is not granted and ultimate relief is eventually granted.
(c) a failure of convinience in favour of the granting of the interim
relief, and
(d) the absence of any other satisfactory remedy.”
[14] In Webster v Mitchell8 Clayden J laid down the following approach:
“The Right to be set up by an applicant for temporary interdict need not be
shown by a balance of probabilities. If it is prima facie established though
open to some doubt that is enough…. The proper manner of approach is to
take the facts as set out by the applicant, together with any facts set out by the
respondent which the applicant cannot dispute, and to consider whether,
having regard to the inherent probabilities, the applicant could on those facts
obtain final relief at the trial. The facts set up in contradiction by the
respondent should then be considered. If serious doubt is thrown upon the
case of the applicant, he could not succeed in obtaining temporary relief, for
his right, prima facie established may only be open to some doubt. But if there
is mere contradiction, or unconvincing explanation, the matter should be left
to trial and the right be protected in the meanwhile, subject of course to the
respective prejudice in the grant or refusal of interim relief.”
[15] In protecting the applicant’s right to life 9 and right to bodily integrity 10
the applicant was afforded by the respondents security and protection
services in terms of the Guidelines on Employee Protection Services:
Eastern Cape Provincial Government 2025 -2030 (the Guidelines). The
Guidelines are informed by the Provincial Securi ty Management Policy.
7 Setlogelo v Setlogelo 21914 AD 221 at 227.
7 Setlogelo v Setlogelo 21914 AD 221 at 227.
8 Webster v Mitchell 1948(1) SA 1186 (W) at 1189.
9 Section 10 of the Constitution.
10 Section 12(2) of the Constitution.
Whilst the first respondent was obliged to provide the services in
question, the applicant had a corresponding right to receive those
services. The respondents accepted that the applicant was exposed to
death threats and physical harm . During October 2022, after the Threat
and Risk Assessment Report had been compiled 11 the applicant was
afforded security and or protection services. Applicant’s right to security
and/or protection services is interlinked and inextricably interwoven with
applicant’s right to life and to bodily integrity. They are not separable.
Whilst the applicant seeks to enforce his right to security and protection
services, he is contemporaneously and quintessentially seeking to protect
the right to life and bodily integrity.
[16] Whilst it is accepted that the prevalence of the threats and potential risk
to applicant’s life and bodily integrity availed the applicant to the right to
security and or protection services, respondents contended that such right
ceased to ex ist. There is paucity of information about the date and or
period as to when that right ceased to exist. Counsel for the respondent,
upon invitation, could not assist this court as to when applicant’s right to
security and or protection services ceased to exist. It is the ceasation of
the right and the non-existence thereof that would, with due process, lead
to the lawful termination of the protection services. It is axiomatic that
provisions of security and or protection services naturally follow the right
thereto. If there is a right to those services, it follows axiomatically that
those services must be provided. I am satisfied that the right to security
and or protection services which originally existed when the applicant
afforded same in 2022 did not c ease to exist. I am further satisfied that
the applicant has established the first requisite of an interim, temporal or
interlocutory interdict (prima facie right).
11 Ostensibly after thorough investigation had been made.
[17] This drives me to the second requisite of an irreparable harm. Right to
life is sacro sanct. There is no replacement for life. Once a person
becomes deceased he cannot be resuscitated to life again. Provisions of
security and or protection services to protect human life is a delicate
matter that requires pragmatism and sense of justice. A r equirement of
irreparable harm can appositely be dealt together with a requirement of
balance of convinience. The following rhetoric questions are relevant for
a proper determination of this issue: What would happen if the interim
relief is not granted and the review application in Part B is ultimately
granted after the applicant has been shot dead because of lack of security
and protection services? Part B would not only become a hollow victory
and brutum fulmen, but also a reminder of a too legalistic and unjust legal
system which did not assist a citizen who came to it when he was still
alive but could not get the necessary assistance. Life is an endowment or
value that cannot be measured in monetary terms. Applicant stand to
suffer irreparable harm should this interim relief be not granted. Equally,
balance of convenient favours the applicant and the grant of interim
relief.
[18] There is no other satisfactory remedy available to the applicant. The
respondents’ Counsel argued that an opportunity was/is a fforded to the
applicant to make representations. That opportunity is an adequate
remedy available to the applicant, so it is argued. I disagree. It is not a
foregone conclusion that the applicant, once he makes representations he
will be afforded those security and protection services. In any event, what
will happen to the applicant when he is still undergoing the rigmarole of
making the representations and that process is still unfolding? If this
interim relief is not granted, the applicant will not have security and
protection services. From the point when this court delivers its judgment
refusing interim relief, the applicant will be exposed to high scale risk.
[19] The applicant has established and satisfied all the requirements of an
interim interdic t. I have already found that this matter is urgent.
Accordingly, this application must succeed.
[20] However, there is a common cause worrisome and concerning fact. The
respondent is said to have inappropriately shared the applicant’s Threat
and Risk Ass essment Report. It is not clear with whom that report was
shared. However, it was shared without the knowledge and consent of the
applicant. The report contains a sensitive security information of the
applicant. The conduct of inappropriately sharing such information poses
a security risk to the applicant. This conduct buttresses a need for security
and protection services. Now that the respondents have not denied the
fact that they have inappropriately shared the said report, it admits of no
doubt that th e respondents pay no regard about their employees’ safety.
This underscores a need for security and protection services to be
provided to the applicant.
[21] The only issue now that is remaining is the issue of costs. The relief
sought in Part A is subject to what the court will decide in Part B. It is
apposite to order that costs of this application be costs in Part B, as the
two parts of this application are interconnected.
Order
[22] In the result I make the following order:
22.1 The applicant is gr anted leave to bring this application in one
of urgency, and the non -compliance with rules relating to
service is condoned and dispensed with in terms of Rule 6(12)
(a) of URC.
22.2 The respondents are hereby interdicted from withdrawing or
terminating applicant’s security and or protection services
pending the final determination of the application made in Prat
B hereof.
22.3 Costs of this application (Part A) are costs in Part B.
________________________________
A.S ZONO
JUDGE OF THE HIGH COURT (ACTING)
APPEARANCES:
For the Applicant : Adv Jikwana
Instructed by : YOZI ATTORNEYS INC
Suite 808 Sangro House
417 Anton Lembede Street
Durban
Email: reception@yoziattorneys.co.za
Tel:061 588 2099
c/o L MARKUS ATTORNEYS
Office 6, Smith Street
King Williams Town
Tel: 066 356 4310
Email: Lmarcusattorneys@gmail.com
For the Respondents : Adv Poswa
Instructed by : THE STATE ATTORNEY
Old Spoornet Building
Cnr Fleet and Station Street
East London
Ref:1231/25-P13 (Mrs Tyani)
Email : LTyani@justice.gov.za
c/o SHARED LEGAL SERVICES
Room 0083, Ground Floor
OTP Building No 1
Bhisho
Due to the fact that it is recess and that this matter was brought on urgent
basis, this judgment was handed down electronically by circulation to the
above mentioned legal representatives by email and release to SAFLII. The
date and time for hand -down is deemed to be 09h30 on Thursday 25 th
September 2025.