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H.C.C v Magistrate Sikala and Others (2025/192858) [2025] ZALMPPHC 207 (27 October 2025)

55 Reportability
Family Law
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Brief Summary

Urgent Applications — Stay of execution — Applicant sought to stay execution of arrest warrant pending review application — Warrant issued for failure to appear in maintenance proceedings — Applicant alleged medical reasons for absence and potential irreparable harm from arrest — Court found urgency in the matter but noted inadequate context in the founding affidavit — Respondent opposed, citing contempt of court and failure to comply with maintenance order — Court held that the Applicant's vague affidavit did not sufficiently establish a clear right or irreparable harm, and thus dismissed the application for a stay of execution.

Comprehensive Summary

Case Note


H[…] C[…] C[…] v Magistrate Sikala and Others (High Court of South Africa, Limpopo Division, Polokwane) Case No. 2025-192858 (27 October 2025). Coram: Bresler AJ


Reportability


This judgment is reportable because it clarifies the circumstances under which a High Court will exercise its discretion to stay the execution of a warrant of arrest and to suspend proceedings arising from a maintenance court process, particularly where a litigant invokes Uniform Rule 45A in the face of specialised statutory remedies under the Maintenance Act 99 of 1998 and the Criminal Procedure Act 51 of 1977. The court’s articulation of the appropriate forum and remedy—emphasising the need first to approach the issuing Magistrates’ Court under section 170(2) of the Criminal Procedure Act for cancellation of a warrant—provides important guidance on forum selection, subsidiarity, and the principle that specialised statutory frameworks should be used in preference to general High Court powers.


The judgment is also significant for its reaffirmation of motion proceedings principles: litigants must make out their case in the founding affidavit, identify the specific documentary portions relied upon, and avoid trial by ambush. By foregrounding authorities such as Swissborough Diamond Mines and Minister of Land Affairs v D & F Wevell Trust, the court reinforces best practice in urgent motion proceedings, especially where liberty and the administration of justice are implicated.


Finally, the decision is noteworthy for its strong endorsement of the constitutional imperative to enforce maintenance orders in line with Bannatyne v Bannatyne and the protective ambit of section 28 of the Constitution. By declining to stay either the warrant of arrest or the maintenance proceedings, the court underscores that the “interests of justice” analysis is shaped by the best interests of children and the need to prevent systemic evasion of maintenance obligations.


Cases Cited


BP Southern Africa (Pty) Ltd v Mega Burst Oils and Fuels (Pty) Ltd and Another; BP Southern Africa (Pty) Ltd v ZA Petroleum and Another 2022 (1) SA 162 (GJ).


Gois t/a Shakespeare’s Pub v Van Zyl and Others 2011 (1) SA 148 (LC).


Road Accident Fund v Legal Practice Council 2021 (6) SA 230 (GP).


Swissborough Diamond Mines (Pty) Ltd and Others v Government of the Republic of South Africa and Others 1999 (2) SA 279 (T).


Minister of Land Affairs and Agriculture v D & F Wevell Trust 2008 (2) SA 184 (SCA).


Transnet Ltd v Rubenstein 2006 (1) SA 591 (SCA); also reported as [2005] 3 All SA 425 (SCA).


Triomf Kunsmis (Edms) Bpk v AE & CI Bpk en Andere 1984 (2) SA 261 (W).


Saunders Valve Co Ltd v Insamcor (Pty) Ltd 1985 (1) SA 146 (T).


S v Baloyi 2000 (1) SACR 81 (CC).


Mokone v Tassos Properties CC and Another 2017 (5) SA 456 (CC); 2017 (10) BCLR 1261 (CC).


Bannatyne v Bannatyne (Commission for Gender Equality, Amicus Curiae) 2003 (2) SA 363 (CC).


Legislation Cited


Maintenance Act 99 of 1998, notably sections 31 and 32.


Criminal Procedure Act 51 of 1977, notably sections 170(2) and 188.


Superior Courts Act 10 of 2013, section 18.


Uniform Rules of Court, including Rules 6(5), 6(12), 43(6), and 45A.


Constitution of the Republic of South Africa, 1996, section 28.


Rules of Court Cited


Uniform Rule 6(12) concerning urgency.


Uniform Rule 6(5) concerning the determination of applications on affidavit and referral to oral evidence.


Uniform Rule 43(6) concerning variation of interim maintenance orders.


Uniform Rule 45A concerning suspension of the operation and execution of orders.


HEADNOTE


Summary


This urgent application sought orders staying the execution of a warrant of arrest issued by the Malamulele Magistrates’ Court and suspending ongoing maintenance-related proceedings, including a section 31 Maintenance Act enquiry, pending a review and related Rule 43(6) processes. The applicant premised the relief on alleged medical impediments to attendance, a contested paternity issue, and the potential prejudice of detention to his participation in High Court matters.


The court accepted that urgency was established because a warrant of arrest threatens personal liberty and could be executed at any time. However, on the merits, the court held that the applicant’s founding papers were deficient, failed to set out the necessary factual matrix, and sought to rely on unidentified documents not properly incorporated into the affidavits. More fundamentally, the court held that the applicant had not availed himself of the statutory remedy to seek cancellation of the warrant in the Magistrates’ Court under section 170(2) of the Criminal Procedure Act, rendering the High Court relief incompetent in the circumstances.


The court further held that Uniform Rule 45A was not the appropriate mechanism to suspend maintenance criminal and enquiry proceedings where the Maintenance Act provides dedicated procedures to address paternity disputes and to vary or suspend maintenance orders. Emphasising the constitutional importance of maintenance enforcement, the court refused to stay either the warrant or the maintenance proceedings. The application was dismissed with costs, including costs to counsel on Scale B.


Key Issues


The first issue was whether the application met the threshold for urgency given that a warrant of arrest had issued and could be executed at any time, potentially affecting the applicant’s liberty and ongoing litigation interests. The court concluded that urgency existed, even assuming (without deciding) the applicant’s merits.


The second issue was whether the High Court should stay the execution of a magistrates’ court warrant of arrest under Uniform Rule 45A when the Criminal Procedure Act provides a direct mechanism for the issuing court to cancel the warrant upon a satisfactory explanation under section 170(2). The court found that the applicant’s failure to approach the issuing court rendered the requested High Court relief inappropriate.


The third issue concerned whether Uniform Rule 45A could be used to suspend maintenance-related proceedings, including a section 31 criminal enquiry, pending disputed paternity and other High Court processes. The court held that the Maintenance Act provides both a pathway to address paternity disputes and to seek variation or suspension of maintenance obligations, making Rule 45A an ill-suited vehicle to interrupt those proceedings.


Held


The court held that the matter was urgent within the meaning of Uniform Rule 6(12) because a warrant of arrest implicates the applicant’s freedom of movement and could be executed at any time. The urgency assessment assumed the applicant may have merits but did not engage them.


On the merits, the court held that a stay of execution was not competent in the circumstances. The applicant had not sought cancellation of the warrant from the Magistrates’ Court under section 170(2) of the Criminal Procedure Act, which, read with section 32 of the Maintenance Act and section 188 of the Criminal Procedure Act, furnished an adequate and alternative remedy. Absent recourse to that remedy, the High Court’s intervention under Rule 45A was unwarranted.


The court further held that the applicant’s founding case was inadequately pleaded and improperly substantiated, contravening the established rule that in motion proceedings the affidavits must contain the material facts and identify the documentary passages relied upon. Given the statutory scheme of the Maintenance Act, the constitutional imperatives identified in Bannatyne, and the applicant’s repeated non-compliance, the balance of convenience and the interests of justice militated against suspending the warrant or the maintenance proceedings. The application was dismissed with costs, including costs to counsel on Scale B.


THE FACTS


The applicant launched an urgent application to stay a warrant of arrest issued by the Malamulele Magistrates’ Court on 17 October 2025 (case B316/2025), and to suspend all maintenance-related proceedings in that court, including a section 31 Maintenance Act enquiry. The applicant sought this relief pending the finalisation of a review of a decision by the first respondent (the presiding magistrate) and pending a Uniform Rule 43(6) variation application in the High Court. The matter first came before the High Court on Saturday, 18 October 2025; an interim order stayed execution of the warrant pending a full hearing on 22 October 2025. Service issues were regularised and the matter proceeded on an urgent basis.


In his founding affidavit the applicant provided sparse context. He asserted a pending review and appeal relating to the magistrate’s decision, claimed a medical inability to attend court on 17 October 2025, and raised an unresolved paternity dispute concerning a minor child, contending that a stay was necessary to avoid detention and to preserve his ability to participate in concurrent High Court proceedings. However, he failed to clearly connect these components to the precise relief sought or to annex and identify the specific portions of documents relied upon to establish his case.


The third respondent, who opposed the application, provided material context. She averred she is the applicant’s customary-law spouse and the mother of the minor child, and that the applicant has been prosecuted for contravening section 31 of the Maintenance Act by failing to pay maintenance in terms of an existing order. She highlighted that the applicant had repeatedly failed to attend maintenance proceedings, culminating in the warrant of arrest issued to secure his attendance. She also pointed out a prior conviction and wholly suspended sentence (R50,000 or 13 months, suspended for five years on condition of no similar offence) imposed on 15 January 2025, and noted that staying enforcement could in practice moot that sanction over time. She further referenced earlier urgent applications brought and abandoned or struck from the roll, and a Children’s Court application concerning paternity that the applicant had not prosecuted to finality.


THE ISSUES


The court had to determine whether the matter should be entertained as urgent given the presence of a warrant of arrest and the applicant’s claims of potential prejudice if detained before his review and Rule 43(6) applications could be finalised. This required the court to separate the procedural question of urgency from the merits in accordance with established principles.


A central dispute was whether the High Court should stay execution of a magistrates’ court warrant of arrest under Uniform Rule 45A when the Criminal Procedure Act provides a targeted remedy: cancellation of the warrant by the issuing court under section 170(2) upon a satisfactory explanation. The court needed to consider whether the applicant had to exhaust that remedy before seeking High Court relief and whether an alternative remedy barred extraordinary intervention.


The court also had to decide whether to suspend maintenance-related proceedings, including a section 31 enquiry, in light of the applicant’s paternity defence and references to High Court processes. This raised the propriety of using Rule 45A where the Maintenance Act itself prescribes procedures for determining paternity, revising maintenance obligations, and enforcing orders, and implicated the broader constitutional and public-interest considerations surrounding maintenance enforcement and children’s rights.


ANALYSIS


On urgency, the court reiterated that it must assume the applicant has merits, and examine only whether the papers demonstrate a need for immediate relief. The court accepted that a warrant of arrest is an imminent threat to liberty and, if executed, could deprive the applicant of freedom pending any later vindication. That risk, coupled with the nature of the relief sought, rendered the matter urgent under Uniform Rule 6(12). The court thus entertained the application on an urgent basis.


Turning to the stay of execution, the court analysed the scope of Uniform Rule 45A in the context of maintenance and criminal process. While Rule 45A allows a court to suspend the operation and execution of an order in the interests of justice, it is a discretionary remedy deployed sparingly, especially given the principle that a litigant with an enforceable judgment is entitled to execution absent exceptional circumstances, as underscored in BP Southern Africa (Pty) Ltd v Mega Burst Oils and Fuels (Pty) Ltd and Another; BP Southern Africa (Pty) Ltd v ZA Petroleum and Another. The modern approach, reflected in Gois t/a Shakespeare’s Pub v Van Zyl and Others and Road Accident Fund v Legal Practice Council, is that a stay may be granted where real and substantial justice requires it or an injustice would otherwise result.


Critically, the court held that, although the warrant was likely issued under section 32 of the Maintenance Act read with sections 188 and 170(2) of the Criminal Procedure Act, the applicant failed to invoke the statutory mechanism designed precisely for this scenario: approaching the issuing Magistrates’ Court to cancel the warrant upon satisfactory explanation that his non-attendance was not due to fault on his part. Section 170(2) provides a tailored, efficacious remedy within the originating forum. The existence of this alternative remedy weighed heavily against High Court intervention, particularly in an urgent motion.


The court emphasised that an arrest warrant to secure attendance in a maintenance criminal matter does not automatically entail immediate incarceration. The Police Standing Orders underscore that arrest is but one mechanism to secure attendance and should be used as a last resort. The applicant’s apprehension of inevitable detention, without more, did not establish irreparable harm or the absence of adequate alternative remedies sufficient to justify a High Court stay.


On the request to suspend maintenance proceedings, the court found Rule 45A an inappropriate tool where the Maintenance Act provides dedicated procedures for paternity disputes, and mechanisms to vary or suspend maintenance obligations. The court noted that the applicant had initiated, but not prosecuted to conclusion, paternity proceedings in the Children’s Court, and that his defence could be raised in the criminal process under section 31. In these circumstances, the balance of convenience and the interests of justice did not favour halting statutory maintenance processes designed to vindicate children’s rights and ensure compliance with court orders.


The court scrutinised the sufficiency of the applicant’s founding papers. Relying on Swissborough Diamond Mines and Minister of Land Affairs v D & F Wevell Trust, it reiterated that in motion proceedings the affidavits are both pleadings and evidence. A party must identify the specific documentary passages relied upon and articulate the conclusions drawn therefrom. It is impermissible to annex voluminous materials and invite the court to trawl through them to reconstruct a case. The applicant’s founding and replying affidavits were “bare and inadequate,” requiring the court to solicit missing context from the bar, thereby prejudicing the opposing party and contravening established practice.


In evaluating the discretionary criteria for a stay—well-grounded apprehension of execution at the instance of the respondent and irreparable harm absent a stay—the court held that the applicant had not met the threshold. His failure to pursue the section 170(2) remedy, the absence of a clear, properly pleaded right, and the availability of statutory pathways to address paternity and maintenance undermined his claim to equitable relief. The court cited S v Baloyi on the authority to cancel warrants upon satisfactory explanations, further illustrating why the issuing court was the proper forum for that relief in the first instance.


Finally, the court framed the “interests of justice” analysis against the constitutional backdrop. Drawing on Bannatyne v Bannatyne and section 28 of the Constitution, it highlighted the systemic importance of enforcing maintenance orders and the deleterious effects of habitual evasion on vulnerable women and children. The applicant’s litigation history—repeated non-attendance, multiple urgent applications abandoned or struck, and failure to prosecute paternity proceedings—suggested an effort to frustrate maintenance enforcement. In these circumstances, to grant a stay would undermine the rule of law and the best interests of the child, contrary to the wide but principled discretion to stay proceedings recognised in Mokone v Tassos Properties CC and Another.


REMEDY


The court declared the matter urgent within the meaning of Uniform Rule 6(12) because the existence of a warrant of arrest posed an immediate threat to the applicant’s liberty. Recognising urgency, however, did not predetermine the merits of the relief sought. The court moved to consider the substance and found the applicant had not satisfied the requirements for a stay.


The application to stay the execution of the warrant of arrest and to suspend maintenance-related proceedings was dismissed. The court held that the applicant had not pursued the appropriate statutory remedy for cancellation of the warrant before the issuing magistrate and had not demonstrated circumstances warranting High Court intervention under Rule 45A. The court further held that maintenance proceedings should proceed in accordance with the statutory framework, and that the applicant’s defences, including paternity, could be addressed in those processes.


On costs, the court found no reason to depart from the general rule that costs follow the result. Given the extreme urgency invoked, the inadequacy of the applicant’s case, and the importance of the proceedings to the parties, the court ordered the applicant to pay the costs, including the costs of counsel on Scale B.


LEGAL PRINCIPLES


In urgent applications, the court assesses urgency on the assumption that the applicant may have merits, focusing on whether immediate relief is necessary to prevent prejudice that cannot be remedied in due course. A warrant of arrest implicates liberty and often satisfies this threshold. However, urgency does not relax the substantive requirements for the relief, nor does it excuse non-compliance with procedural and evidentiary duties in motion practice.


A stay of execution under Uniform Rule 45A is an equitable, discretionary remedy granted sparingly. The applicant must show that real and substantial justice requires a stay, typically by demonstrating a well-grounded apprehension of execution and irreparable harm if a stay is refused and the applicant later succeeds. This discretion is exercised within the broader legal framework, including the availability of adequate alternative remedies, the specialised statutory schemes governing the dispute, and the interests of justice.


In motion proceedings, the affidavits are both the pleadings and the evidence. Litigants must set out all material facts in the founding papers, identify the specific portions of documents relied upon, and articulate the conclusions drawn therefrom. It is impermissible to annex documents wholesale and invite the court to reconstruct a case. New matter may not be advanced for the first time in reply or on appeal. These principles ensure fairness, avoid trial by ambush, and promote procedural clarity and efficiency.


Where maintenance enforcement is at issue, the constitutional rights of children under section 28 of the Constitution and the systemic need to ensure compliance with maintenance orders are central considerations. Courts will be slow to stay maintenance processes, particularly where the statutory framework (Maintenance Act and Criminal Procedure Act) provides targeted remedies for paternity disputes, variation or suspension of maintenance obligations, and the cancellation of warrants upon adequate explanations. The interests of justice, informed by Bannatyne, favour the effective operation of maintenance courts and the prompt enforcement of maintenance obligations.


Finally, where a warrant of arrest issues from a magistrates’ court in a maintenance matter, the proper course is to approach that court under section 170(2) of the Criminal Procedure Act to seek cancellation upon a satisfactory explanation. High Court intervention to stay execution will generally be inappropriate absent exceptional circumstances, especially where the applicant has not exhausted or attempted the dedicated statutory remedy.

SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy

REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
LIMPOPO DIVISION, POLOKWANE

CASE NUMBER: 2025-192858
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO THE JUDGES: YES/NO
(3) REVISED.
DATE: 27 October 2025
SIGNATURE:

In the matter between:

H[…] C[…] C[…] APPLICANT

-and-

MAGISTRATE SIKALA 1ST RESPONDENT

DIRECTOR OF PUBLIC PROSECUTIONS 2ND RESPONDENT

N[…] E[…] M[…] 3RD RESPONDENT

MINISTER OF POLICE 4TH RESPONDENT

Delivered 27 October 2025
This judgment was handed down electronically by circulation to the
parties' legal representatives by e -mail. The date and time for hand
down of the judgment is deemed to be 27 October 2025 at 10:00 am.
Date heard 22 October 2025

Coram Bresler AJ

JUDGMENT

BRESLER AJ:

Introduction:

[1] The Applicant applied on an urgent basis for inter alia the following relief:

1.1 An order staying the execution of the arrest warrant issued by the
Malamulele Magistrates Court on the 17 th of October 2025 under case
number B316/2025 pending finalisation of the review application and Rule
43(6) application.
1.2 Suspending all pro ceedings in the Malamulele Mgistrate's Court,
including the Section 31 Maintenance enquiry pending the finalisation of the
review application, Rule 43(6) application, including the application for leave
to appeal.
1.3 Suspending the proceedings in the Ma lamulele Magistrate's Court
pending the outcome of the paternity results as ordered by Mushwana AJ.

[2] The case was initially enrolled on Saturday, the 18 th of October 2025 and,
having provided neither the Court nor the Respondent with sufficient time t o consider
the matter, the Court was not inclined to hear the matter. An interlocutory order was
granted staying the warrant of arrest pending the hearing of the case on the 22 nd of
October 2025. This interlocutory order was since extended pending delivery of this
judgment.

[3] This Court was also not satisfied that specifically the 1 st, 2 nd and 4 th
Respondent was duly notified as the documents were only e -mailed to two
individuals employed at the state attorney as opposed to actually notifying the
relevant state organ.

[4] When the matter came before Court on the 22 nd of October 2025, the Court
was satisfied with service, and the parties were requested to address the court on
the issue of urgency and merits simultaneously.

[5] The Applicant provides very little informatio n in its Founding affidavit as to the
context of the current proceedings. It is only alleged that the Applicant lodged a
review against the decision of the 1 st Respondent on the 14 th of October 2025. He
also notes that there is an appeal pending. On the 17th of October 2025 the Applicant
was unable to appear in the Magistrate's Court and a warrant of arrest was issued.

[6] The Applicant then sets out particulars in respect of an alleged dispute with
regards to the paternity of a minor child. Again, no cont ext is provided as to when
this dispute arose or how the minor child specifically features into the scenario.

[7] As to irreparable harm the Applicant submits that the execution of the warrant
of arrest will result in his detention and might potentially impact his ability to partake
in the ongoing high court proceedings. Again, this Court is not privy to the alleged
High Court proceedings or the context thereof having regard to the current
proceedings.

[8] The proceedings were opposed by the 3 rd Respondent. In her answering
affidavit, the 3rd Respondent submits that she acts in her capacity as the customary
wife and the mother of the 3rd Respondent's minor child. This provided the Court with
a bit more context as to exactly what the Applicant's aim with the urgent proceedings
is.

[9] The 3rd Respondent also explained that the Applicant is guilty of the offence of
failure to pay in terms of a maintenance order as contemplated in Section 31 of the
Maintenance Act , Act 99 of 1998. He was summoned to appea r before the
maintenance court to answer to the charge and the warrant of arrest was authorised
after he repeatedly failed to appear in person and obtained several postponements.

after he repeatedly failed to appear in person and obtained several postponements.
The aim of the warrant is therefore to secure his attendance before court to answer
to the contravention of the Maintenance Act.

[10] The 3 rd Respondent also submits that on the 15 th of January 2025, the
Applicant was convicted and sentenced to a fine of R50,000.00 or 13 (thirteen
months) imprisonment wholly suspended for a period of five (5) years on condition
that he is not convicted of a similar offence during the suspension period. It appears
that, suspending the current warrant will, in effect, possibly render this conviction
moot as finalisation of the pending proceedings might very well exceed the stipulated
five (5) year period.

[11] The 3 rd Respondent also highlights that the Applicant is in contempt of the
court order granted by the Honourable Tshidada J on the 19 th of December 2023 in
terms whereof the 3rd Respondent was ordered to pay both child, as well as spousal
maintenance. The issue of paternity was ventilated during these proceedings.
Notwithstanding the alleged dispute, the maintenance order was granted pendente
lite.

[12] As to the alleged paternity dispute, the 3 rd Respondent submits that on or
about the 13th of February 2024, the Applicant issued out a Notice of Motion from the
Children's Court for the District of Malamulele held at Malamulele. The 3 rd
Respondent delivered her answering affidavit but to date the Applicant has failed to
prosecute the matter to finality.

[13] The Applicant also disclosed that there are similar proceedings to the current
application pending in the above court and under cas e number 2025-132323, which
proceedings were also launched on an extremely urgent basis and purportedly since
abandoned. On 8 September 2025, another urgent application for similar relief was
issued in this court under case number: 2025 -159794. This applic ation was struck
from the roll by the Honourable Makoti J.

[14] The 3 rd Respondent elaborated on her customary marriage to the applicant
and the events that transpired before and after the birth of the minor child. In this
court's view, these facts are i rrelevant to the current proceedings, but nonetheless

court's view, these facts are i rrelevant to the current proceedings, but nonetheless
helpful in explaining the context of the current case. Suffice to state that the
Applicant's dispute on the paternity of the minor child is premised on alleged
scientific evidence. Again, the court is n ot called upon to determine the issue of

paternity in these proceedings, and the facts are thus irrelevant for a determination
of the issues in this case.

[15] The Replying affidavit of the Applicant is largely a denial and a reference to
certain documents that do not form part of the record of the proceedings before this
court. The alleged customary marriage is for instance in dispute with regards to
documents forming part of the Rule 43(6) proceedings. Likewise, the paternity issue
and the Applicant's f inancial inability is presumably disclosed in these Rule 46(3)
proceedings. The Court is not privy to these proceedings nor are the relevant
extracts from these proceedings highlighted and annexed to the current application.

Applicable legal principles:

Urgency

[16] It is trite law that for purposes of urgency the court must assume that the
Applicant has merits in his case. The urgency must therefore appear from the papers
without regard to the merits or the opposition thereof.

[17] Having regard to the vague and incomprehensible Founding affidavit
delivered herein, it appears that the Applicant failed to appear in court because of
medical reasons, a warrant of arrest was issued which warrant was not suspended
pending his re -appearance in court. In this Court's view, urgency is manifest. The
warrant can be executed at any time depriving the Applicant of his freedom of
movement. If it is accepted that the Applicant might have merits in his case, the
matter therefore warrants the hearing on an urgent basis.

Merits

[18] Rule 45A of the Uniform Rules of Court provides that the court may on
application suspend the operation and execution of any order for such period as it
may deem fit, provided that in the case of appeal, such suspension is in compliance
with section 18 of the Superior Court Act, Act 10 of 2013.

[19] In the judgment of De Villiers AJ in BP Southern Africa (Pty) Ltd v Mega
Burst Oils and Fuels (Pty) Ltd and Another; BP Southern Africa (Pty) Ltd v ZA
Petroleum and Another1 at paragraph 25 it was held:

'A litigant with an enforceable Judgment is entitled to payment, and only in
rare cases would be delayed in that process. In my view there may be
exceptional cases where a court would still exercise a discretion to prevent an
injustice in staying execution.'

[20] Without embarking on an extensive discourse of the law, the legal position
today is that a Court will grant a stay of execution where real and substantial justice
is required, or an injustice will otherwise be occasioned. 2 A court faced with an
application for the suspension of execution, may be guided by the factors that
underlies the granting of interim interdicts, with due regard to the fact that an
applicant is not asserting a prima facie right but is seeking to avoid an injustice. The
Court must therefore be satisfied that:

20.1 The Applicant has a well -grounded apprehension that the execution is
taking place at the instance of the Respondent; and
20.2 Irreparable harm will result if execution is not stayed, and the applicant
ultimately succeeds in establishing a clear right.

[21] As stated herein before, the Applicant's Founding affidavit is quite bare and
inadequate when it comes to the relevant contextual background of this matter.
Reference is made to several proceedings that are not currently before Court. It is
trite law that a Court cannot be expected to trawl through lengthy annexures to
ascertain the actual message that the Applicant wishes to convey. Reference is often
made to the case of Swissborough Diamond Mines (Pty) Ltd and Others v

1 2022 (1) SA 162 (GJ)
2 Gois t/a Shakespeare's Pub v Van Zyl and Others 2011 (1) SA 148 (LC) at para
37; Road Accident Fund v Legal Practice Council 2021 (6) SA 230 (GP) (a
decision of the full court) at paragraphs 30 to 33.

Government of the Republic of South Africa and Others 3, where the Honourable
Joffe J pertinently stated:

'... it is not open to an applicant or respondent to merely annexe to its affidavit
documentation and to request the Court to have regard to it. What is required
is t he identification of portions thereof on which reliance is placed and an
indication of the case which is sought to be made out on the strength thereof .
If this were not so the essence of our established practice would be destroyed.
A party would no know what case must be met.'

[22] An applicant must make out its case in its Founding affidavit. Rule 6(5) of the
Uniform Rules of Court provides:

'Where an application cannot properly be decided on affidavit the court may
dismiss the application or make such order as it deems fit with a view to
ensuring a just and expeditious decision. In particular, but without affecting
the generality of the afore going, it may direct that oral evidence be heard on
specified issues with a view to resolving any dispute of fact and to that end
may order any deponent to appear personally or grant leave for such
deponent or any other person to be subpoenaed to appear an d be examined
and cross­ examined as a witness or it may refer the matter to trial with
appropriate directions as to pleadings or definition of issues, or otherwise.'

[23] The affidavits must identify issues and contain the factual averments relevant
to those issues. Where a party for instance relief on a document, the passages in the
document must be identified and the conclusions based on the passages must be
set out.

[24] The reasoning is set out in Minister of Land Affairs and Agriculture v D & F
Wevell Trust4 as thus:


3 1999 (2) SA 279 (T)
4 2008 (2) SA 184 (SCA) at [43]

'[43] ... The second is that the case argued before this court was not properly
made out in the answering affidavits deposed to by Andreas. The case that
was made out, was conclusively refuted in the replying affidavits as I pointed
out in paras [18] to [20] above. It is not proper for a party in motion
proceedings to base an argument on passages in documents which have
been annexed to the papers when the conclusions sought to be drawn from
such pass ages have not been canvassed in the affidavits. The reason is
manifest - the other party may well be prejudiced because evidence may have
been available to it to refute the new case on the facts. The position is worse
where the arguments are advanced for t he first time on appeal. In motion
proceedings, the affidavits constitute both the pleadings and the evidence:
Transnet Ltd v Rubenstein, 5 and the issues and averments in support of the
parties' cases should appear clearly therefrom. A party cannot be exp ected to
trawl through lengthy annexures to the opponent's affidavit and to speculate
on the possible relevance of facts therein contained. Trial by ambush cannot
be permitted.

[25] The law is thus clear: In motion proceedings, the affidavits constitute both the
pleadings and the evidence. 6 They need to fully disclose the case of the party to
enable the Court to come to an informed conclusion.

[26] The Applicant's founding and replying affidavit falls dismally short of this
requirement. Much of the relevant background had to be solicited from counsel
during the hearing of the matter which resulted in objections from the 3rd Respondent
that evidence is being lead from the bar.

[27] Even if the Applicant's affidavit contained sufficient information to enlighten
the court as to how it truly came about, the Court is not convinced that the Applicant
is entitled to the relief it applied for.


5 2006 (1) SA 591 (SCA) [also reported at [2005] 3 All SA 425 (SCA) - Eds] para 28.

5 2006 (1) SA 591 (SCA) [also reported at [2005] 3 All SA 425 (SCA) - Eds] para 28.
6 Triomf Kunsmis (Edms) Bpk v AE & Cl Bpk en Andere 1984 (2) SA 261 (W) at
269G - H and Saunders Valve Co Ltd v lnsamcor (Pty) Ltd 1985 (1) SA 146 (T) at
149G.

[28] Although it does not explicitly appear from the Founding or Replying affidavit,
it is most likely that any warrant of arrest issued would be under section 32 of the
Maintenance Act read with the provisions of section 188 and 170(2) of the Criminal
Procedure Act, 51 of 1977 (the CPA).

[29] In accordance with these Acts, the court that issued the warrant of arrest is
entitled to cancel the warrant of arrest if it is satisfied with the explanation furnished
for the defaulter's failure to attend or remain in attenda nce at court and it is satisfied
that this was not due to any fault on his part.7

[30] The relief sought by the Applicant regarding the suspension of the warrant of
arrest is therefore not competent because he has not attempted to first resolve the
cancellation of the warrant of arrest at the court that issued it in accordance with the
provisions of s170(2) of the CPA. The Applicant failed to show that there is no
alternative remedy available to him or why this remedy is not accessible to him.

[31] The issuing of the warrant of arrest to secure his attendance will also not
automatically result in his incarceration as alleged by the Applicant. In accordance
with the Police Standing Orders an arrest is one of the ways of securing an
accused's attendance in court, but it was the most drastic infringement of the rights
of a person and therefore it should be used as a last resort.

[32] As to the stay of the maintenance proceedings, this Court is not convinced
that the provisions of Rule 45A of the Uniform Rules of Court is the appropriate
remedy in these circumstances. The Maintenance Act specifically provides for the
procedure to be followed if there is a paternity dispute. The act furthermore provides
for a remedy for the suspension or setting aside of any maintenance order. Moreover,
it appears from the 3 rd Respondent's version that the Applicant must answer to the
offence of fail ure to pay maintenance. If the Applicant persists in its defence on

offence of fail ure to pay maintenance. If the Applicant persists in its defence on
paternity, this will be considered in the criminal trial in due course. The balance of
convenience therefore do not favour the granting of the relief.


7 S v Baloyi 2000 (1) SACR 81 CC para 29.

[33] In Mokone v Tassos Properties CC & anothe r8 the Constitutional Court
held that a court has the discretion to grant a stay of proceedings if it is in 'the
interests of justice' to do so and that the idea of 'interests of justice' in this context is
quite wide.

[34] At this stage, the A pplicant appears to have taken every possible endeavour
to frustrate to payment of maintenance to both the 3 rd Respondent and towards the
minor child. The remedies available to him to question the paternity of the minor child,
has either not been pursued or appears to have been abandoned.

[35] Courts are enjoined to intervene when the interests of children are imperilled.
In Bannatyne v Bannatyne 9 in which the Constitutional Court expressed itself as
follows:

'[27] Systemic failures to enforce maintenance orders have a negative impact
on the rule of law. The courts are there to ensure that the rights of all are
protected. The Judiciary must endeavour to secure for vulnerable children and
disempowered women their small but life-sustaining legal entitlements. If court
orders are habitually evaded and defied with relative impunity, the justice
system is discredited and the constitutional promise of human digni ty and
equality is seriously compromised for those most dependent on the law.

[28] It is a function of the State not only to provide a good legal framework, but
to put in place systems that will enable these frameworks to operate
effectively. Our maintena nce courts and the laws that they implement are
important mechanisms to give effect to the rights of children protected bys 28
of the Constitution. Failure to ensure their effective operation amounts to a
failure to protect children against those who take advantage of the
weaknesses of the system.'


8 2017 (5) SA 456 (CC), 2017 (10) BCLR 1261 paras 64 -72 at 474B -476B (SA),
1278E-1280D (BCLR).
9 2003 (2) SA 363 (CC) at [27]

[36] Maintenance orders and maintenance enquiries are very important for the
reasons stated in Bannatyne. Therefore, they must be enforced and those required
to attend maintenance enquiries have an obligation t o present themselves at the
maintenance courts for those enquiries. That is why failure to respond to a
maintenance summons or to attend a maintenance enquiry may lead to possible
arrest and could also lead to detention.

[37] Had the Applicant simply attended to maintenance enquiry and presented his
version to the Court the matter might have been finalised by now. Justice must run
its course. On this basis, it is not in the interest of justice if the warrant of arrest and
the maintenance proceedings are suspended at this stage.

[38] The application therefore stands to be dismissed.

Costs:

[39] There is no reason why the cost order should not follow the outcome of the
proceedings. Having regard to the extreme urgency with which the proceedings were
launched, the inadequacy of the Applicants case and the importance of the
proceedings to the parties, costs to counsel on Scale B is warranted.

Order:

[40] In the result the following order is made:

40.1 The applicati on is deemed urgent as contemplated in Uniform
Rule 6(12);
40.2 The application is dismissed.
40.3 The Applicant is ordered to pay the costs, including the costs to
counsel on Scale B.



M BRESLER AJ

ACTING JUDGE OF THE HIGH COURT,
LIMPOPO DIVISION, POLOKWANE


APPEARANCES:

FOR THE APPLICANT : Adv. N Tshigidimisa
INSTRUCTED BY : Tlaleni Godi Attorneys
Randburg
happygodi@gmail.com

FOR THE 3rd RESPONDENT : Ms. NP Mbhiza
INSTRUCTED BY : Ntsako Phyllis Mbhiza Attorneys
Pretoria
admin@npminc.co.za
npmbhizainc@gmail.com

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