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IN THE HIGH COURT OF SOUTH AFRICA, MPUMALANGA DIVISION,
(MBOMBELA, MAIN SEAT)
DELETE WHICHEVER IS NOT APPLICABLE
(1) REPORTABLE : YES/NO
(2) OF INTEREST TO OTHER JUDGES: YES /NO
(3) REVISED YES/NO
15/12/2025
Date
In the matter between:
NONTANDO JACQUILINE NDASHE
And
Appeal Case No: A2025-213512
A quo Case No:2025/164139
APPELLANT
IMAGAGANE CONSTRUCTION CC FIRST RESPONDENT
NDASHE MOSES JUNIOR SECOND RESPONDENT
STANDARD BANK OF SOUTH AFRICA N.O THIRD RESPONDENT
JUDGMENT
NYAMBI AJ, VUKEYA J, AND FOURIE AJ CONCURRING
INTRODUCTION
[1] On the 14th of October 2025 judgment and an order in terms of Section 18 of
the Superior Courts Act, 10 of 2013, was granted by Ratshibvumo DJP in
favour of the First and Second Respondents (who were the Applicants in the
court a quo) The Court ordered, that an order that was granted on the 7th of
October 2025 against the Appellant and the Third Respondent herein, was
declared executable immediately pending appeal by the Appellant (who was
the first Respondent in the court a quo).
[2] The granting of the order accorded the Appellant an automatic right of appeal
in terms of the further provisions of Section 18 as stated supra, hence this
appeal, which is opposed by the Respondents.
[3] The Court is satisfied that all peremptory and preliminary issues, such as the
setting of security and the filing of the record, have been properly complied
with. On this note the matter stood down from its initial set down date for a
week in order for the full record to be filed and for the relevant documentation
indicating the waiver of security to form part of the Court bundle. At the hearing
of the matter, it was no longer necessary to deal with those aspects, and the
Court could merely evaluate the relevant issues on appeal. The issue of
security for costs has been waived
BACKGROUND
[4] On the 07th of October 2025, the Court granted an order in favour of the First
and Second Respondents , in terms of which the Second Respondent was
allowed access to assets belonging to the Second Respondent and prohibiting
the Appellant from preventing the Second Respondent from accessing the
assets.
[5] The First Respondent is a member of the Second Respondent (a Close
Corporation), and he had sought to gain access to the assets in order to utilise
them in the operation of the Second Respondent's business.
[6] Pursuant to the granting of the order, the Appellant lodged an appeal against
that order, which ther_, prompted the 1st and 2nd Respondents (as Applicants)
to bring an application for an order declaring that the order of the 07th of
October 2025 be declared to be executable immediately pending the
application for leave to appeal or appeal.
[7] It was Applicants' case that a delay in the execution of the court order will
result in their failure to deliver in terms of their appointment as a sub-contractor
with NEWTHINGS LEFATSHE (PTY) LTD , that same will cause irreversible
harm , will expose them to civil claims for breach of contract and that they are
unable to obtain alternative vehicles due to lack of funds for rental.
[8] On the 14th of Octob~r 2025, the Court, in accordance with section 18 of the
Superior Courts Act, granted the order for the immediate execution of the
order. In appealing that order, the Appellant, in essence is of the view that a
case had not been made out by the Respondents for the execution of the order
dated 07 October 2025.
APPELLANT'S SUBMISSIONS
[9] The Appellant submitted that a case for exceptional circumstances as
envisaged in section 18 of the Superior Courts Act had not been made out by
the Respondents and that the Court a quo should not have found that the
Respondents will suffer irreparable harm and that the Appellant will not suffer
irreparable harm.
[1 O] The Appellant placed much emphasis on the fact that the initial application
was seemingly brought under the auspices of Section 18(3) of the Superior
Courts Act, without having regard to Section 19(1) of the Superior Courts Act.
The Appellants submit that the Respondents mis appreciated the nature of the
application and that they failed to set out expressly, exceptional circumstances
justifying the Order being granted.
[11] It is the Appellants' contention that, in the absence of the Court finding that
exceptional circumstances existed, the Court need not evaluate the existence
or absence of irreparable harm.
[12] The Appellant further submitted that the fact that the Court a quo found
urgency to be existent did not constitute exceptional circumstances for
purpose of the Section application.
[13] It is the Appellants' submissions that the facts as stated in the Section 18
application need to be clear and clearing stated, and whether the matter at
hand is one meeting the threshold of exceptional circumstances ought not be
made by mere deduction.
RESPONOENTS' SUBMISSIONS
[14] The Respondents' submission stood directly opposite to the case as submitted
by the Appellant. The Respondents submit that the Respondents were not
required to, under a specific heading, deal with exceptional circumstances,
and submitted that the facts as portrayed in the application, which was clearly
set out in the papers justify the Order as was made in the Court a quo.
[15] The Respondents opposed the views by the Appellant that the Section 18
application ought to have set out new facts beyond those initially relied on for
the hearing of the main application.
[16] The Respondents submit that the Court correctly found that the matter was of
such an exceptional nature that the matter ought to be heard on an urgent
basis in order to ensure that substantial redress is obtained and the same
facts that render the matter urgent render the matter of such an exceptional
state that a Section 18 order was warranted.
APPLICABLE LEGAL PRINCIPLES AND ANALYSIS
[17] Section 18 of the Superior Courts Act provides as follows:
"18 Suspension of decision pending appeal
(1) Subject to subsections (2) and (3), and unless the court under
exceptional circumstances orders otherwise, the operation and
execution of a decision which is the subject of an application for leave
to appeal or of an appeal, is suspended pending the decision of the
application or appeal.
(2) Subject to subsection (3), unless the court under exceptional
circumstances orders otherwise, the operation and execution of a
decision that is an interlocutory order not having the effect of a final
judgment, which is the subject of an application for leave to appeal or
of an appeal, is not suspended pending the decision of the application
of appeal.
(3) A Court may only order otherwise as contemplated in subsection (1) or
(2), if the party who applied to the court to order otherwise, in addition
proves on a balance of probabilities that he or she will suffer irreparable
harm if the court does not so order and that the other party will not suffer
irreparable harm if the court so orders.
(4) If a court orders otherwise, as contemplated in subsection (1) -
(i) The court must immediately record its reasons for doing so;
(ii) The aggrieved party has an automatic right of appeal to the next highest
court
(iii) The court hearing such appeal must deal with it as a matter of extreme
urgency; and
(iv) Such order will be automatically suspended, pending the outcome of
such appeal. '
[18] From the reading of section 18(1), it is clear that the court has the authority to
make an order departing from the ordinary rule that orders are suspended
where there is an appeal. The section, however, puts a proviso that such
authority may be exercised by the court under exceptional circumstances. The
exceptional circumstances in any particular case must be within the context
and facts of that case.
[19] It is clear from the provision of section 18(3) that, with the prerequisite of
exceptional circumstances, as prescribed in section 18(1 ), for the court to
order the immediate execution of an order pending an appeal, the party
seeking such order, must additionally prove on a balance of probabilities that
he or she will suffer irreparable harm if the court does not order the immediate
operation of the said order, and that on a balance of probabilities, the
Respondent stands to suffer no irreparable harm if the order is not suspended.
[20] The requirements for an order in terms of section 18 are therefore succinctly
prescribed and section 18(4) thus places a duty upon a court that makes an
order for the immediate execution of an order, to record its reasons for ordering
as such. The intention of the legislature would have been nothing other than
allowing the other party to immediately and easily ascertain how the court
arrived at its decision, as a remedy under 18(4) for the aggrieved party is an
automatic right of appeal and to be afforded urgent redress with access to
court.
[21] The dictates of section 18(4) are that where an appeal is lodged under this
section, the court hearing the appeal must deal with it on an extremely urgent
basis. The aim is to accord urgent redress to both parties, as the order for the
immediate execution of an order is suspended under this section, where there
is an appeal, thus putting the party who had been granted the order, in the
default position of his or her awarded order being suspended pending the
appeal.
[22] In as far as the meaning of exceptional circumstances is concerned, the
grammatical meaning thereof means "circumstances that are out of the
ordinary" and the courts have in various case law, both in criminal and civil
cases, made strides to define the concept of 'exceptional circumstances', and
in all such cases, what stands out, is the fact that extra-ordinary factors must
be found to exist.
[23] In the case of S v Peterson 2008 (2) SACR (C) 355, the court held that:
"Generally speaking, "exceptional" is indicative of something unusual,
extraordinary, remarkable, peculiar or simply different but that because of
varying degrees, it will therefore depend on the context and on the
particular circumstances of the case under consideration."
[24] It is thus a crucial consideration that in each case, the finding of exceptional
circumstances will depend on the context and on the particular circumstances
and facts of the case that is before the court at any given point. There is no
'one glove fits all' approach, in the consideration of exceptional circumstances.
[25] In University of Freestate v Afriforum and Another 2018 (3) SA 428 (SCA)
in par 12-13, the Supreme Court of appeal stated the following:
'[12] The concept of 'exceptional circumstances' introduced by s 18(1),
was considered by Mpati Pin Avnit v First Rand Bank Limited [2014]
ZASCA 123, in the context of s 17(2)(f) of the Act which provides that in
exceptional circumstances' the President of this court may refer a
decision on an application for leave to appeal to the court for
consideration. Mpati P held that upon a proper consideration of s
17(2)(f), the President w ill need to be satisfied that the circumstances
are 'truly exceptional' before referring a matter for consideration.
[13] Whether or not 'exceptional circumstances' for purposes of s
18(1) are present, must necessarily depend on the peculiar facts of each
case. In lncubeta Holdings para 22 Sutherland J J put it as follows:
'Necessarily, in my view, exceptionality must be fact-specific. The
circumstances which are or may be "exceptional' must be derived from
the actual predicaments in which the given litigants find themselves.'
[26] As this Court has found in the matter of Skhosana v The State, Middelburg
(Local Seat), Bail Appeal Case Number : BA 10/2025, although the wording
seems to burden an Applicant in a bail process with some or other exceptional
hurdle to cross, the principle need not be over evaluated than anything else,
being the normal burden of proof, which is one of a balance of probabilities.
During the engagement at Court with the respective legal representatives, this
was equated to, if a hundred grains of sand we re to be placed on a weighing
scale, the Applicant in a bail application in respect of Schedule 6 needs the
Court to find that at least 51 grains of sand are on her side of the scale. Simply
because the wording "exceptional circumstances" presents itself does not
mean that the threshold suddenly changes to something that would equate to
being beyond reasonable doubt or beyond all doubt. It is, in keeping with the
same metaphor, the 51 grains of sand that should be so out of the ordinary that
they outweigh the 49 grains of sand that represent the interest of justice,
[27] Sight should, however, not be lost that there are 3 requirements that must be
met, in order to succeed in an application as envisaged in Section 18(1) & (3),
and those are;
a) The existence of exceptional circumstances;
b) Proof on a balance of probabilities, that Applicant will suffer irreparable
harm if the order is not granted
c) Proof on a balance of probabilities that the Respondent will not suffer
irreparable harm if the order is granted.
[28] In Tyte Security Services CC v Western Cape Provincial Government and
Others 2024 (6) SA 175 (SCA) it was stated in par 1 0 that;
' ... An important point of departure, so it seems to me , is that consideration
of each of the so-called three requirements is not a hermetically sealed
enquiry and can hardly be approached in a compartmentalised fashion.'
[29] The Supreme Court of Appeal in Tyte, further stated in para 13 that
"What constitutes irreparable harm is alw ays dependent upon the factual
situation in which the dispute arises, and upo n the legal principles that
govern the rights and obligations of the parties in the context of that
dispute. It was accepted in Knoop that 'the need to establish exceptional
circumstances is likely to be closely linked to the applicant establishing
that they will suffer irreparable harm if the ... order is not implemented
immediately'. The same I dare say, can be said of its counterpart, the
absence of irreparable harm, as the case may be, can hardly be entirely
divorced from exceptional circumstances enquiry. It would perhaps be
logically incoherent for a court to conclude, on the other hand, in favour
of an applicant that exceptional circumstances subsist, but on the other,
against an applicant on either leg of the irreparable harm inquiry."
[30] The issue to be determined by this Court, is whether the court a quo correctly
held that the requirements for the enforcement of an order under section 18
of the Superior Courts Act had been established or not.
[31] It must further be noted that this Court will only interfere with the Court a quo's
judicial discretion if it is found that the Court misdirected itself in the application
of the facts and or the law in granting its order.
[32] Turning to the facts and circumstances of the matter. In its Judgment, the
Court a quo, in respect of exceptional circumstances, stated that;
"The question of exceptional circumstances becomes much easier to
deal with when this matter came before the Court as an urgent
application and this court having ruled already that the matter is urgent.
It will be very rare to have a matter that is urgent, yet at a later stage it
appears there are no exceptional circumstances, although this is not
impossible, but in most instances one would find that once it is a ruling
or finding to the effect that an application is urgent, that on its own w ould
in most instances also translate to mean there are exceptional
circumstances to allow the matter to be heard"
[33] In referring to the facts found to be constituting exceptional circumstances, the
court highlighted the fact that company will fail to operate unless it has access
to all its assets.
[34] It is thus accordingly an incorrect reading of the Court's reasoning, by the
Appellant, when they contend that the court only found that there are
exceptional circumstances because the matter is urgent. The court was clear
in that, although it is not impossible not to find exceptional circumstances
when the matter is urgent, but in most instances one would find that there are
exceptional circumstances once a ruling of urgency is made.
[35] The court proceeded in its judgment to state that the Appellant did not seem
to have any interest in the matter when the main application was dealt with,
having also denied having taken possession of the assets.
[36] What the court further stated in its judgment, was that; ' ... it shows clearly that
if the close corporation does not continue operating, the 1st applicant will suffer
prejudice or substantial harm of which there may not be substantial redress in
the normal course of events'.
[37] Court further held that: even after the distribution of assets to the
beneficiaries, it is the Applicant who will suffer more as there was also a will
wherein all the interests in the company appeared to have been bequeathed
to the 2nd Applicant. And that there is no indication or suggestion that the 1st
Respondent will suffer any prejudice and without any prejudice, I do not see
how it there would any irreparable harm that the 1st Respondent will suffer
when there is no interest displayed in respect of these assets.'
[38] The Jugde stated as part of the facts of the case that the Applicant had a
tender, as a subcontractor, which they were not able to execute without the
assets, and that by the time the matter is finalised on appeal, the tender may
no longer be there.
[39] From the reading of the Court a quo's judgment, as alluded to above, the Court
did record what it considered as facts and circumstances that constituted
exceptional circumstance within the context of the case, and the Court further
commented on the aspect of irreparable harm, in respect of the Applicant and
the Respondent, and so the Court granted the order.
[40] Having regard to the facts of the matter and keeping with the metaphor as
stated in the matter of Skhosana v The State, the question is accordingly
whether the submissions pertaining to the commercial prejudice that the
Respondents would suffer were of such an exceptional state that those grains
of sand would tip the scale in favour of the Respondents. The Court a quo
found that it did, and this Court is similarly convinced that those facts constitute
facts on which exceptional circumstances may be held.
RULING
[41] This Court is satisfied that the Court a quo and Honourable DJP in granting
the order, applied itself to the facts and the prescripts of section 18 to the letter,
and accordingly did not misdirect itself in any manner.
[42] For the reasons stated herein, the appeal stands to be dismissed .
•
[43] There is no reason why cost should not follow the outcome.
[44] Consequently, this Court makes the following order:
ORDER
1. The appeal is dismissed
2. The Appellant shall pay the costs of the applicati n
B .
I agree
I agree
TLL NYAMBI
ACTING JUDGE OF THE HIGH COURT
LDVUKEYA
JUDGE OF THE HIGH COURT
HF FOURIE
ACTING JUDGE OF THE HIGH COURT
This judgment was handed down electronically by circulation to the
parties' legal representatives by email
Representation
Counsel for the Appellant: NGWENYA TS
Instructed by: JF Shabangu Attorneys
Email: felicia@jfshabanguattorneys.co.za
Counsel for the 1st and 2nd Respondents: MAKAMU LH
Instructed by: Mzimba Mzimba Inc
Email: info@mzimbainc.co.za
Hearing date: 05 December 2025
Delivery date: 15 December 2025