REPUBLIC OF SOUTH AFRICA
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IN THE HIGH COURT OF SOUTH AFRICA,
GAUTENG DIVISION, PRETORIA
Appeal: A254/2023
First Court: 4948/2022
Reportable: No
Of interest to other Judges: No
Retii-,
SIGNATURE
Date: 4 December 2025
In the matter between:
THE UNIVERSITY OF MPUMALANGA 1 st Applicant
SELLO LEGODI znd Applicant
and
KITSO MAFOKANE Respondent
JUDGEMENT
MOOKI J (Neurkicher J and Swanepoel J concurring)
1 The Supreme Court of Appeal granted the appellants leave to appeal to this
court. The appeal is in connection with the judgement and order by
Roelofse AJ on 13 January 2023, in the Mpumalanga division of the High
Court (the High Court).
2 The University suspended the respondent, a student at the University,
following disciplinary proceedings against him . The respondent then
brought urgent proceedings on 13 January 2023, seeking leave to sit for
special examinations scheduled from 16 January 2023. He also sought to
be allowed to be registered and enrolled as a student for the 2023 academic
year. The respondent sought relief pending a review application to be
instituted within 30 days of the grant of the order being sought.
3 The University opposed the application, contending that the application
was not urgent and that the respondent had not shown a basis for relief on
the merits. The history of the prior exchanges between the parties is of
particular importance when considering the issue of urgency - these are
detailed b elow.
4 The University called the respondent to a disciplinary proceeding based on
the respondent's participation in what the University charged was conduct
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contrary to the rules of the University. Specifically, the respondent was
said to have participated in protests by students that resulted in damage to
property belonging to the University. The University found the Respondent
guilty following a disciplinary hearing. The Respondent was suspended for
two years.
5 The Respondent brought an urgent application on 8 November 2022. He
sought to be allowed to sit for examinations pending the outcome of his
appeal of the decision of the disciplinary committee. The High Court
granted the interdict. The appeals committee dismissed the appeal on 17
November 2022.
6 The respondent launched a further application on 13 January 2023, for the
relief as stated in paragraph 2 above. The application was, once again,
brought on an urgent basis. This time, the application was launched on 13
January 2023 and gave the appellant but hours within which to appoint
attorneys, consult and draft answering papers.
7 The bases upon which the urgent application was launched, and the
reasons for the extreme urgency and severely truncated time periods, were
alleged by the respondent to be that the appeals committee dismissed his
appeal on 17 November 2022 but he still had several examinations to write
at the time of the dismissal of his appeal. He mentioned that he suffered
severe anxiety attacks and depression after the dismissal of his appeal. On
approximately 10 December 2022, he contacted his attorneys and informed
them of the outcome of the appeal but they could not obtain an opinion
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from counsel before the December holidays. His attorneys closed for the
holidays on 14 December 2022 and opened on 11 January 2023.
8 The respondent further stated that he received knowledge on 12 January
2023 that examinations and special examinations were to commence from
the 16th of January 2023. He was supposed to sit for special examinations
on the 16, 17, and 19 January 2023. He told his attorneys that the dates
were his last opportunity to sit for the 2022 academic year examinations.
His attorneys arranged for consultation with counsel on 13 January 2023
and the application was launched on the same day.
9 The University pointed out that it became aware of the application at 12:25
on 13 January 2025, with the University given very limited time to consult
and file answering papers. The University contended that the application
was not urgent, pointing out that the respondent was advised of the
decision by the appeal committee on 16 November 2022. The University
further pointed out that the respondent did not attend the appeal hearing
and took no steps after 16 November 2022 and yet he approached the court
in the morning of 13 January 2023 on an extremely urgent basis. The
University complained about how the respondent was litigating, pointing
out that the respondent previously brought an application on an urgent
basis on 8 November 2022 in which he sought relief pending his appeal.
The University pointed out that the respondent did not bother to attend the
appeal hearing. The University Further pointed out that the Intended review
application would be prejudicial to the University's disciplinary processes
because students found guilty of serious misconduct would seek to
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indefinitely or at least for a long period, frustrate the final determination of
disciplinary proceedings by rushing to court, as witnessed by the
Respondent. The University asked that the matter be removed from the
roll, with the respondent paying the wasted costs of counsel.
10 The High Court, in considering the application, stated that the court must
apply "very strict rules when considering urgent applications, because
ultimately an applicant asks a court for condonation for not keeping to the
time limits prescribed by the rules for normal proceedings." The High
Court pointed out that the court has a discretion in that regard; that the
University was given a day and a few hours to file an answering affidavit
and that there had been a delay by the Respondent. The High Court was " ...
of the view that this delay was not properly explained, however the nature
of the urgency and the prejudice that might be suffered by - that will be
suffered by the applicant if the matter is not heard urgently outweighs the
fact that the applicant has not come to court with the necessary speed and
haste that would be expected." Ultimately, the High Court granted the relief
sought by the respondent. The University sought leave to appeal, raising
various grounds. Those grounds included that the High Court improperly
exercised its discretion that the matter was urgent. The High Court refused
leave to appeal. The University petitioned the Supreme Court of Appeal,
which granted the petition, resulting in this hearing.
11 Counsel for the University accepted, when the matter came before this
court, that the appeal was moot. Counsel sought, however, to persuade the
court to express a view on what he submitted were students frustrating the
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University's disciplinary processes by launching court proceedings. In my
view, with the dispute being moot, a court should not enter the terrain by
expressing a view in relation to what is no longer a live dispute.
12 The High Court had made various cost orders against the University. The
University raised this as a ground of appeal, namely that the orders ought
not to have been made. The Supreme Court of Appeal, in granting leave to
the Un iversity, ordered that "The cost order of the court a quoin dismissing
the application for leave to appeal is set aside AND the cost of the
application for leave to appeal in this court and the court a quo are costs in
the appeal. If the applicant does not proceed with the appeal, the applicant
is to pay these costs."
13 The University should be made good for the costs in the appeal. The
University was entitled to vindicate its rights. The fact of the appeal being
moot when the matter came before this court is not on account of the
University.
14 I propose the following order:
(1) The appeal is dismissed for being moot.
(2) The respondent is ordered to pay the costs.
(3) The costs referred to are costs of the appeal, including the cost of the
application for leave to appeal in the Supreme Court of Appeal and the costs
in the application for leave to appeal in the High Court. ~
0 MOOI{I
JUDGE OF THE HIGH COURT
GAUTENG DfVISION PRETORIA
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I agree and ft is so ordered:
Counsel for the appellant:
Lnstructed by:
Counsel for the respondent:
Date heard:
Date of judgement:
IUDGE OF THE HIGH COU RT
GAUTENG DIVISION . PRF.TORIAI
I
CSWANEPOEL
JUDGE OFTflE HIGH COURT
GAUTENG DlV ISION, PRETORJA
R Rothlisberger
Zwane Sambo Attorneys
No appearance
5 Novemoer 2025
4 December2025
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