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Monesa Projects (Pty) Ltd v Ablon Construction CC and Another (2025/216771) [2026] ZAFSHC 14 (19 January 2026)

70 Reportability
Contract Law
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Brief Summary

Contract — Specific performance — Urgent application for specific performance of subcontract agreement — First respondent's purported termination of the agreement declared invalid — Court finding that the first respondent failed to place the applicant in mora prior to cancellation, constituting repudiation not accepted by the applicant — Specific performance granted with costs.

Comprehensive Summary

Summary of Judgment


Introduction


The proceedings were an urgent application brought in the High Court of South Africa, Free State Division, Bloemfontein, in which the applicant sought specific performance of a subcontract and ancillary relief restoring it to site and enabling it to continue the subcontract works. The application was pursued under Rule 6(12) of the Uniform Rules of Court.


The applicant was Monesa Projects (Pty) Ltd, the subcontractor appointed to perform certain construction works at premises in the district of Theunissen, Free State. The first respondent was Ablon Construction CC, the contractor under the subcontract. The second respondent was Juwi Construction 2A, cited as an interested party because it held the main contract with the first respondent from which the subcontract arose.


Procedurally, the matter was launched after the first respondent issued a letter purporting to terminate the subcontract on 16 October 2025. The urgent application was initially issued out of the Northern Cape Division, Kimberley, and enrolled for hearing on 11 November 2025; it was then transferred to the Free State Division, Bloemfontein, in terms of section 27 of the Superior Courts Act 10 of 2013, and heard on 18 November 2025. The applicant abandoned the relief originally sought to prevent referral to arbitration (prayer 2), and persisted with relief declaring the termination invalid and compelling continued performance.


The general subject-matter of the dispute concerned whether the first respondent validly terminated the subcontract (based on alleged insurance/COIDA compliance shortcomings) and whether the applicant was entitled, urgently, to an order compelling the first respondent to permit performance and restore access to the site.


Material Facts


The parties concluded a subcontract agreement in July 2025 in terms of which the applicant was appointed to conduct various construction works, with the first respondent as contractor. The subcontract contemplated that the works were to be completed by 30 March 2026, but it did not provide a commencement date for the subcontract works.


After conclusion of the subcontract, the applicant was given access to the premises and began preparatory and establishment activities from 11 August 2025 until 12 September 2025. On 12 September 2025, the first respondent verbally advised the applicant that it would no longer be allowed access to the premises and prevented it from carrying out the subcontract works. The first respondent admitted in its answering affidavit that it had forced the applicant off-site.


In response to being removed from site, the applicant launched an urgent spoliation application which was served on 19 September 2025, but then removed the spoliation matter from the roll on 30 September 2025 in order to attempt an amicable resolution. The parties then attempted to arrange meetings to resolve the dispute, but dates were repeatedly postponed due to availability constraints on both sides.


A meeting took place on 15 October 2025. The applicant’s version was that it expressed its intention to comply with the subcontract and that the first respondent’s representative repeatedly alleged the applicant was in breach for not obtaining a “FEM letter” (a letter of good standing associated with Federated Employers Mutual Assurance Company (RF) (Pty) Ltd). The applicant further asserted that it had a letter of good standing from the Department of Employment and Labour and that the first respondent nevertheless indicated it would cancel because the second respondent allegedly no longer wanted the applicant on site. The first respondent admitted that the FEM point had been raised as a breach allegation.


On 16 October 2025, the first respondent sent a letter titled “Termination of Subcontract” asserting that the applicant had failed to provide valid proof of FEM coverage “within the prescribed period” as required under clause 6.3.1 of the subcontract, and it purported to terminate the subcontract with immediate effect, also invoking the Occupational Health and Safety Act 85 of 1993.


On 22 October 2025, the applicant’s attorneys addressed a demand asserting that the purported termination constituted repudiation, which the applicant rejected, and demanded compliance with the subcontract failing which an urgent application for specific performance would follow. The first respondent’s attorneys responded on the same day denying repudiation and contending that the applicant had not followed the dispute-resolution process in the subcontract.


The applicant proceeded to draft and issue the urgent application, which was issued on 29 October 2025. The answering affidavit was filed on 4 November 2025 and the replying affidavit on 10 November 2025.


Where the papers reflected disagreement, the court distinguished between the parties’ characterisation of their discussions after the removal from site. The first respondent contended that the discussions were not “settlement negotiations” but rather repeated opportunities for the applicant to bring its COIDA registration/insurance up to date. The court rejected that characterisation, finding that the discussions arose after spoliation and were directed at resolving the underlying dispute concerning the alleged insurance/COIDA issue and access to site.


Legal Issues


The court was required to determine, first, whether the matter met the requirements for urgency under Rule 6(12), including whether the applicant had explicitly set out circumstances rendering the matter urgent and why it could not obtain substantial redress in due course, and whether any urgency was self-created.


Secondly, the court had to determine whether the first respondent’s purported termination on 16 October 2025 was valid under the subcontract and applicable principles of contract law. This required determining whether the asserted ground (failure to provide “FEM coverage” proof) was a contractual requirement and, if not, whether cancellation without prior demand was permissible where the contract did not stipulate a time for performance in relation to insurance/registration proof.


Thirdly, the court had to consider whether the applicant was entitled to specific performance, acknowledging that such relief is subject to the court’s discretion, and whether the circumstances justified granting the remedy.


Finally, insofar as the subcontract included a dispute-resolution clause contemplating adjudication and potentially arbitration and/or litigation, the court had to decide whether that clause precluded the court’s jurisdiction to grant urgent relief.


The dispute involved a combination of legal questions (urgency requirements; mora principles; repudiation; effect of a dispute-resolution clause) and the application of law to largely common-cause facts (the contents of clause 6.3.1; the absence of a stipulated time for the relevant performance; the fact of removal from site and purported termination).


Court’s Reasoning


On urgency, the court applied Rule 6(12)(b), emphasising that an applicant must explicitly set out the circumstances giving rise to urgency and explain why it cannot obtain substantial redress in due course. The court adopted the approach articulated in the cited authorities that urgency is fundamentally underpinned by the absence of substantial redress later, that delay is not necessarily fatal, and that attempts to settle do not detract from urgency. The court further noted the principle that the court will not assist where urgency is self-created.


Applying those principles to the facts, the court considered the chronology from the removal from site and subsequent attempts to resolve the dispute, through to the termination letter and the steps taken to prepare and launch the application. It held that there was no inordinate delay, that the applicant had provided a full explanation for relevant periods (including time spent on attempted settlement), and that the applicant had sufficiently set out why relief in the ordinary course would not afford substantial redress, particularly with reference to the contractual completion deadline and the consequences alleged to flow from continued exclusion from site. The court rejected the first respondent’s complaint about prejudice from truncated time periods, characterising it as an unsubstantiated sweeping statement in the answering affidavit.


On the validity of the termination, the court examined the content of clause 6.3.1 of the subcontract. It held that the first respondent’s reliance on a FEM letter as a contractual requirement was misplaced because clause 6.3.1 required insurance against risks related to COIDA (and related legal liability) but did not stipulate FEM registration or production of a FEM letter as a contractual prerequisite. For that reason, the asserted failure to produce FEM proof was not a valid contractual ground for termination.


The court further reasoned that clause 6.3.1 did not stipulate a specific time frame within which the applicant had to procure and provide the relevant insurance registration proof. Relying on the principle that where a contract does not fix a time for performance, a demand is necessary to place the debtor in mora, the court held that the first respondent could not cancel without first placing the applicant in mora. The court applied the distinction between mora ex re and mora ex persona as explained in the cited authorities and concluded that, absent a fixed time for the relevant performance, the first respondent had to make a demand before it could treat non-performance as actionable delay entitling cancellation.


In those circumstances, the court held that the purported cancellation amounted to repudiation by the first respondent. Because the applicant had not accepted the repudiation, the contract remained extant, and the applicant could pursue specific performance.


On specific performance, the court noted that the remedy remains subject to judicial discretion exercised on a consideration of all relevant facts. It considered the first respondent’s contention that it could no longer work with the applicant because the applicant could not be trusted, and that the second respondent held a similar view. The court considered the record and noted that an annexure relied on by the applicant demonstrated the first respondent’s awareness that the applicant was experiencing a delay in obtaining confirmation of insurance from the Department of Employment and Labour. Objectively assessed, the court found no valid reason to refuse specific performance and therefore granted it.


The court also held that, in light of its conclusions, it was unnecessary to decide the status of the applicant’s letter of good standing (annexure FA8), because the decisive point was that FEM proof was not a contractual requirement and that cancellation without placing the applicant in mora was not justified on the papers.


Regarding the dispute-resolution clause (including arbitration), the court reasoned that, on the applicant’s founding case, the clause could not be interpreted as ousting the court’s jurisdiction for purposes of obtaining urgent relief. The court accepted the submission that the clause contemplated arbitration as part of a broader dispute-resolution process and did not preclude litigation; in any event, it did not bar the urgent approach to court for the immediate relief sought.


Outcome and Relief


The court enrolled and heard the application as an urgent matter under Rule 6(12) and dispensed with the ordinary forms and service and filing time limits.


The court declared the first respondent’s purported termination of the subcontract agreement on 16 October 2025 invalid, ordered the first respondent to comply with its obligations under the subcontract, and directed the first respondent to do what was necessary to allow the applicant to comply with its obligations. This included restoring access and possession of the premises through notification to on-site security and preventing impediments by the first respondent’s employees or agents to the applicant’s continued performance of the subcontract works.


Costs were awarded against the first respondent, including the costs of counsel on Scale C.


Cases Cited


East Rock Trading 7 (Pty) Ltd and Another v Eagle Valley Granite (Pty) Ltd and Others [2011] ZAGPJHC 196


Transnet Limited v Rubenstein [2005] ZASCA 60; [2005] 3 All SA 425 (SCA); 2006 (1) SA 591 (SCA)


Luna Meubelvervaardigers (Edms) Bpk v Makin and Another 1977 (4) SA 135 (W)


Schweizer Reneke Vleis Mkpy (Edms) Bpk v Die Minister van Landbou en Andere 1971 (1) PH F11 (T)


Breytenbach v Van Wijk 1923 AD 541


Crookes Brothers Ltd v Regional Land Claims Commission, Mpumalanga, and Others [2012] ZASCA 128; 2013 (2) SA 259 (SCA); [2013] 2 All SA 1 (SCA)


Scoin Trading (Pty) Ltd v Bernstein NO 2011 (2) SA 118 (SCA)


Legislation Cited


Arbitration Act 42 of 1965 (including section 3(2)(b))


Compensation for Occupational Injuries and Diseases Act 130 of 1993


Occupational Health and Safety Act 85 of 1993


Superior Courts Act 10 of 2013 (including section 27)


Rules of Court Cited


Uniform Rules of Court, Rule 6(12) (including Rule 6(12)(b))


Held


The court held that the applicant established urgency within the meaning of Rule 6(12)(b), having explained the chronology, the absence of substantial redress in due course, and the reasonableness of its attempts at settlement prior to litigation.


It held that the first respondent’s purported termination was invalid because the subcontract did not require a FEM letter as a contractual prerequisite and did not stipulate a time for the relevant insurance-related performance, with the result that the first respondent could not cancel without first placing the applicant in mora by demand. The purported cancellation therefore constituted repudiation, which the applicant did not accept.


It held that the applicant was entitled to specific performance and that the dispute-resolution clause did not oust the court’s jurisdiction to grant urgent relief.


LEGAL PRINCIPLES


The judgment applied the principle that an urgent application under Rule 6(12) requires an applicant to set out explicitly the circumstances rendering the matter urgent and to explain why it cannot obtain substantial redress in the ordinary course. Delay is not per se decisive; it must be assessed in context, and attempts at settlement may explain delay without detracting from urgency. The concept of self-created urgency remains a bar where applicable, but it must be supported by the facts.


On contract performance and cancellation, the judgment applied the principle that where a contract does not fix a time for performance, a creditor must make a demand to place the debtor in mora (mora ex persona) before treating delay as default justifying cancellation. Where no proper basis exists for cancellation, a purported cancellation may amount to repudiation; if repudiation is not accepted, the contract remains in force and the innocent party may seek enforcement.


The judgment also applied the principle that specific performance is available as a contractual remedy subject to the court’s discretion exercised judicially on the facts, and that a contractual dispute-resolution clause of the kind considered did not, on the case presented, exclude the court’s power to grant urgent relief.

IN THE HIGH COURT OF SOUTH AFRICA
FREE STATE DIVISION, BLOEMFONTEIN
In the matter between:
MONESA PROJECTS (PTY) LTD
[Registration No. 2025/560708/07]
and
ABLON CONSTRUCTION CC
[Registration No. 1996/020922/23]
JUWI CONSTRUCTION 2A
[Registration No. 2023/976064/07]
Not Reportable
Case no: 2025/216771
APPLICANT
FIRST RESPONDENT
SECOND RESPONDENT
Neutral citation: Monesa Projects (Pty) Ltd v Ab/on Construction CC and Another
(2025/216771) [2026] ZAFSH 14 (19 January 2026)
Coram: Van Zyl J
Heard: 18 November 2025
Delivered: This judgment was handed down electronically by circulation to the parties'
representatives by e-mail and released to SAFLII. The date and time for hand-down is
deemed to be 14h30 on 19 January 2026.
Summary: Urgent application for specific performance of contract- principles regarding
urgency - purported cancellation of contract without placing in mora in absence of agreed
time frame for performance - constitutes repudiation, which was not accepted - claim for
specific performance granted.

2
ORDER
1 The application is enrolled and heard in terms of Rule 6(12) of the Uniform Rules
of Court as a matter of urgency and the time limits as set out in the Rules pertaining to
form, service and filing are dispensed with.
2 The first respondent's purported termination of the subcontract agreement on 16
October 2025 is declared invalid.
3 The first respondent shall comply with its obligations under and in terms of the
subcontract agreement.
4 The first respondent shall do all things necessary to allow the applicant to comply
with its obligations under and in terms of the subcontract agreement including:
4.1 notifying all onsite security personnel to reinstate the applicant's access and
possession of the premises; and
4.2 preventing any of the first respondent's agents from impeding the applicant's
undisturbed access to, use and possession of the premises; and
4.3 preventing any of the first respondent's employees, agents or representatives from
preventing the applicant from continuing the subcontract works in terms of the subcontract
agreement.
5 The costs of the application are to be paid by the first respondent, including the
costs of counsel on Scale C.
JUDGMENT
Van Zyl J
[1] This matter served before me as an urgent application in terms whereof the applicant
sought the following relief:
'1. The ;:ipplication be enrolled and heard in terms of Rule 6(12) of the Uniform Rules of Court
as a matter of urgency and that the time limits as set out in the Uniform Rules pertaining to forms,
service and filing be dispensed with.
2. The dispute between the Applicant and the First Respondent regarding the First
Respondent's purported termination of the Subcontract Agreement entered into between the
Applicant and the First Respondent dated 23 July 2025 ("the Subcontract Agreement") shall not
be referred to arbitration, as contemplated by Section 3(2)(b) of the Arbitration Act 42 of 1965.
3. The First Respondent's purported termination of the Subcontract Agreement on 16 October

3. The First Respondent's purported termination of the Subcontract Agreement on 16 October
2025 is declared invalid.

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4. The First Respondent shall comply with its obligations under and in terms of the Subcontract
Agreement.
5. The First Respondent shall do all things necessary to allow the Applicant to comply with its
obligations under and in terms of the Subcontract Agreement, including:
5.1 Notifying all on-site security personnel to reinstate the Applicant's access and possession of
the Premises; and
5.2 Preventing any of the First Respondent's agents from impeding the Applicant's undisturbed
access to, use and possession of the Premises; and
5.3 Preventing any of the First Respondent's employees, agents or representatives from
preventing the Applicant from continuing the Subcontract works in terms of the Subcontract
Agreement.
6. The costs of this application shall be paid by the First Respondent, including the costs of
counsel on a "C" scale.'
[2] The applicant is no longer seeking an order in terms of prayer 2 of the notice of
motion.
Background
[3] The applicant and the first respondent entered into a subcontract agreement in July
2025, in terms whereof the applicant was appointed as subcontractor to conduct various
construction works at a designated premises in the district of Theunissen, Free State
Province, and further in terms whereof the first respondent is the contractor in the
subcontract agreement.
[4] The second respondent is cited as an interested party to the proceedings in as far
as the second respondent is the holder of the main contract between the first respondent
and the second respondent, which gives rise to the subcontract agreement between the
applicant and the first respondent.
[5] Clause 6.3.1 of the subcontract agreement reads as follows:
'6.3 The Subcontractor shall insure against such risks as are stated in the provisions of the Main
Contract and which may arise out of or in consequence of this Subcontract in respect of:
6.3.1 The Compensation for Occupational Injuries and Diseases Act (Act 130 of 1993) or any

6.3.1 The Compensation for Occupational Injuries and Diseases Act (Act 130 of 1993) or any
other statute in force for the time being or any other legal liability in respect of any accident or
injury to any workman or other person in the employment of the Subcontractor;
6.3.2 ... '

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[6] Clause 15 of the subcontract agreement determines as follows:
'15.
SETTLEMENT OF DISPUTES
15.1 If any dispute or difference shall arise between the Subcontractor and the Contractor, either
during the progress or after the completion of the Subcontract Works, or after the determination
of the employment of the Subcontractor under this agreement, as to the construction of this
agreement, or as to any manner or things arising thereunder, in the first instance an attempt shall
be made to settle the dispute amicably. Should all attempts to settle the dispute or difference
amicably fail, such dispute or difference shall be referred to the appointed representative of the
Contractor, or the Contractor's site agent if no representative is appointed, for his determination
by written decision to the Subcontractor. The said decision shall be delivered within 14 days of
the date of request and shall be final and binding upon the parties unless the Subcontractor, within
14 days of receipt thereof, by written notice to the Contractor disputes the decision, in which case
the matter shall be referred to an adjudicator. Should the Contractor's representative or site agent
fail to deliver his decision within 14 days he shall be deemed to have given a decision rejecting
the Subcontractor's contentions or claims. The adjudicator shall be appointed by agreement of the
parties failing which by the President of the South African Federation of Civil Engineering
Contractors upon request of the Subcontractor.
15.2 The opinion of the adjudicator shall be final and binding upon the parties for all disputes
involving less than R500 000. For disputes involving amounts in excess of RS00 000, should one
of the parties, within 28 days of receipt of the opinion, express to the other in writing their
dissatisfaction with the opinion, then that party may take the matter to arbitration and/or litigation,
provided arbitration and/or litigation proceedings are instituted within a further 28 days. The

opinion of the adjudicator shall take immediate effect and shall be maintained until such time as it
may be overturned by arbitration and/or litigation.
15.3 If the matter is referred to arbitration, the arbitrator shall be a person ... '
The chronology of events
[7] Following the conclusion of the subcontract agreement, the applicant was provided
with access to the premises in order to commence conducting the subcontract works. The
subcontract agreement did not contemplate a date on which the subcontract works were
to commence, it only provided that the subcontract works were to be completed by 30
March 2026.

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[8] From 11 August 2025 until 12 September 2025,. the applicant began to commence
with the subcontract works by establishing the premises as contemplated in terms of the
subcontract agreement.
[9] On 12 September 2025, the first respondent verbally advised the applicant that the
applicant would no longer be allowed access to the premises and therefore prevented the
applicant to carry out the subcontract works.
[1 O] According to the applicant, the aforesaid conduct of the first respondent constituted
spoliation and the applicant launched an urgent spoliation application which was served
on the first respondent on 19 September 2025. The first respondent admits, in its
answering affidavit, that it forced the applicant off-site.
[11] On 19 September 2025, and simultaneously with issuing the spoliation application,
the applicant addressed an e-mail to the first respondent, which e-mail is annexed to the
founding affidavit as annexure 'FA2'. In the said e-mail, the applicant recorded the
spoliation and confirmed that it has issued a spoliation application. The applicant,
however, also indicated that it would like to meet with the first respondent to resolve the
issue amicably during the course of the following week.
[12] On 21 September 2025, the first respondent responded to annexure 'FA3' by means
of an e-mail, annexure "FA3" to the founding affidavit, in which it, inter a/ia, stated the
following:
Please see my comments based on:
1. The e-mail received from you on 19 Sept '25 at 11h17 (as below)
2. The Dept of Labour's Tender Letter received from you on 19 Sept '25 at 17h24 (attached)
Re 1. Your e-mail below:
i) As per your second paragraph you are lodging a formal dispute.
(a) Pursuant to the subcontract signed between Ablon and Monesa, clause 15 makes provision
for dealing with disputes. You have not acted contractually, thus a non-conformance to the
contract.
Re 2. Tender Letter from DOL:
i) The letter is for Tender purposes, it merely states that you are registered ito COID,

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ii) Please provide proof that you have registered your site employees by name and ID within
the seven days from appointment as stipulated in the Act,
iii) Please provide proof or a copy of the ROE document you had to fill out for every employee
and submit to DOL ito ii) above with a date stamp from DOL,
iv) Please provide proof as to at which DOL office this was submitted,
v) Please explain why the letter emanates from the Nigel Labour Centre instead of the DOL
applicable to your business address or the DOL Welkom, FS where the project is taking place
vi) You do not understand that you have put Ablon in a serious predicament by having non­
FEM/COID covered employees on site for a substantial period of time to which our client Juwi did
not respond kindly to. Ablon was exposed to a non-conformance of contract with our client due to
your non-conformance towards Ablon.
Re 3. Urgent application:
iv) Remember your undertaking to myself and Ryno in his office that you will concede and step
down with Ablon taking over the employees if you could not provide a FEM letter by 17h00 same
afternoon.
[13] The applicant subsequently avers as follows pertaining to the spoliation application
in its founding affidavit, at paragraph 22 thereof:
'Be that as it may, and in an attempt to resolve the matter amicably, the Applicant instructed the
Applicant's attorneys of record to remove the matter from the urgent roll in order to allow the
parties to engage meaningfully and mediate the matter, with the aim to resolve the spoliation,
regain access to the Premises and continue with its construction services as per the Subcontract
Agreement's terms.'
[14] The notice of removal from the roll was consequently filed on 30 September 2025.
[15] On 30 September 2025, the applicant contacted the first respondent via WhatsApp
messenger to request a mutually beneficial time and date to discuss and negotiate the
matter. The parties found it difficult to agree upon a date which suited both parties and the

matter. The parties found it difficult to agree upon a date which suited both parties and the
arranged date to meet and mediate the dispute between them, was postponed on
numerous occasions due to the unavailability of both the applicant and the first
respondent.
[16] With regard to the events that led up to the cancellation of the subcontract
agreement, the applicant avers as follows in its founding affidavit:

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'29. On 15 October 2025, the Applicant and First Respondent met in Welkom to discuss their
dispute, wherein the Applicant was represented by myself and the First Respondent was
represented by Charles Deacon and Junior Letaona.
30. At the meeting it became apparent to me through Charles' demeanour and aggression
towards me that he had no intention to allow the Applicant to regain possession of the Premises
of which I expressed the Applicant's clear intention and willingness to abide by the Subcontract
agreement.
31 . During the meeting, Charles repeatedly alleged that the Applicant was in breach of his
obligations under and in terms of the Subcontract Agreement in that it had not obtained a "FEM"
letter.
31.1 For the sake of clarity, "FEM" is a reference to the Federated Employers Mutual Assurance
Company (RF) (Pty) Ltd.
31.2 FEM offers workmen compensation insurance for incidents contemplated by COIDA.
31.3 A 'FEM Letter' is a letter of good standing, which FEM issues confirming that an employer
has obtained insurance cover.
31.4 However, an employer is not obligated to obtain insurance through FEM. It can, instead,
obtain cover from the Department of Employment and Labour.
31.5 The Department of Employment and Labour also issues a Letter of Good Standing
confirming compliance with COIDA, and thus coverage under and in terms of the Act.
32. The Applicant was, factually, in possession of a Letter of Good Standing from the
Department of Labour and Employment. I annex a copy of the letter hereto as "FA8".
33. When I mentioned this to Charles he advised that this was "too little too late" and that the
First Respondent would not accept my submission.
34. I, on behalf of the Applicant, made it very clear to the First Respondent's representatives
that the Applicant had complied fully with its requirements in terms of the Subcontract Agreement
and placed on record that the First Respondent had not once placed the Applicant in breach for

and placed on record that the First Respondent had not once placed the Applicant in breach for
the lack of a letter of good standing. Despite this explanation, Charles advised that regardless of
what happens, the Second Respondent no longer wanted to work with the Applicant and neither
the First Respondent and that the First Respondent would be cancelling its contract with the
Applicant.
35. Charles further stated that the First Respondent had also received written notification from
the Second Respondent stating that the First Respondent is to remove the Applicant from the
premises. I informed Charles that I had never seen such letter, of which Charles confirmed that I
was never given a copy and advised that he would provide me with a copy of such.
36. Accordingly, the dispute was not resolved and on 16 October 2025, the First Respondent
sent a letter to me on behalf of the Applicant, a copy of this letter is annexed hereto as annexure
"FA9".'

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[17] The aforesaid annexure 'FA9' is titled 'Termination of Subcontract' and, inter alia,
states the following:
'Following several discussions and a meeting held, the latest being 15 October 2025, it is
confirmed that you have failed to provide valid proof of FEM (Federated Employers Mutual)
coverage within the prescribed period as required under clause 6.3.1 (Insurances) of the
Subcontract and the Occupational Health and Safety Act (Act 85 of 1993).
Accordingly, and in terms of the Subcontract Agreement (Clauses 6.3.1 and 17), Ablon
Construction hereby terminates your Subcontract with immediate effect. .. .'
[18] On Monday, 20 November 2025, the applicant urgently consulted with its attorney of
first instance.
[19) On 22 October 2025, the applicant's attorney of first instance addressed a letter of
demand to the first respondent in which it was, inter alia, stated that the purported
termination of the subcontract agreement constitutes a repudiation of the agreement,
which repudiation the applicant rejects. It was demanded that the first respondent
complies with its obligations in terms of the subcontract agreement and that it provides an
undertaking to this effect, absent which, an urgent application will be sought in the high
court, seeking specific performance.
[20] On 22 October 2025, the first respondent's attorney of record responded to the
applicant's letter of demand, in which response it denied the repudiation of the subcontract
agreement and further stating that the applicant did not follow the dispute resolution
process as set out in the agreement.
[21] On 23 October 2025, Ms Rachael Chalmers of the applicant's attorneys of first
instance, commenced drafting the application.
[22] The draft was finalised on 25 October 2025 and sent to counsel to be settled, which
counsel did on 27 October 2025, and reverted with one or two queries.
[23] The application was issued on 29 October 2025. The notice of motion was signed

[23] The application was issued on 29 October 2025. The notice of motion was signed
on 28 October 2025, but was apparently filed electronically on 29 October 2025. In terms
of the notice of motion, the answering affidavit was to be filed on 4 November 2025, which

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affidavit was duly filed on the said date. The replying affidavit was filed on 10 November
2025.
[24] The urgent application was initially issued out of the Northern Cape Division,
Kimberley, and enrolled for 11 November 2025. On the said date, it was enrolled and
heard in terms of rule 6(12) of the Uniform Rules of Court, but was transferred to the Free
State Division of the High Court in Bloemfontein in terms of s 27 of the Superior Courts
Act 10 of 2013, for hearing on 18 November 2025.
Applicable legal principles on urgency
[25] The first respondent is contesting the urgency of the application.
[26] The point of departure in urgent applications is the provisions of rule 6(12). In this
regard, more particularly rule 6(12)(b), provides as follows:
'In every affidavit filed in support of any application under paragraph (a) of this sub-rule, the
applicant must set forth explicitly the circumstances which is averred render the matter urgent and
the reasons why the applicant claims that applicant could not be afforded substantial redress at
the hearing in due course.'
[27] The following well-known principles were set out in East Rock Trading 7 (Pty) Ltd
and Another v Eagle Valley Granite (Pty) Ltd and Others [2011] ZAGPJHC 196 at paras
6-9:
'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 claims 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 application 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.

rules it will not obtain substantial redress.
It is important to note that the rules require absence of substantial redress. This is not equivalent
to the irreparable harm that is required before the granting of an interim relief. It is something less.
He may still obtain redress in an application in due course but it may not be substantial. Whether
an applicant will not be able obtain substantial redress in an application in due course will be
determined by the facts of each case. An applicant must make out his cases in that regard.

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In my view the delay in instituting proceedings is not, on its own a ground, for refusing to regard
the matter as urgent. A court is obliged to consider the circumstances of the case and the
explanation given. The important issue is whether, despite the delay, the applicant can or cannot
be afforded substantial redress at a hearing in due course. A delay might be an indication that the
matter is not as urgent as the applicant would want the Court to believe. On the other hand a delay
may have been caused by the fact that the Applicant was attempting to settle the matter or collect
more facts with regard thereto.
It means that if there is some delay in instituting the proceedings an Applicant has to explain the
reasons for the delay and why despite the delay he claims that he cannot be afforded substantial
redress at a hearing in due course. I must also mention that the fact the Applicant wants to have
the matter resolved urgently does not render the matter urgent. The correct and the crucial test is
whether, if the matter were to follow its normal course as laid down by the rules, an Applicant will
be afforded substantial redress. If he cannot be afforded substantial redress at a hearing in due
course then the matter qualifies to be enrolled and heard as an urgent application. If however
despite the anxiety of an Applicant he can be afforded a substantial redress in an application in
due course the application does not qualify to be enrolled and heard as an urgent application.'
[28] In Transnet Limited v Rubenstein [2005] ZASCA 60; [2005] 3 All SA 425 (SCA); 2006
(1) SA 591 (SCA) at para 33, the Supreme Court of Appeal endorsed the approach that
an applicant cannot legitimately be criticised for attempting to settle a matter before
resorting to litigation and that such conduct would not detract from urgency.
[29] In Luna Meubelvervaardigers (Edms) Bpk v Makin and Another 1977 ( 4) SA 135 (W)
(Luna Meubelvervaardigers), the court determined as follows at 137:

(Luna Meubelvervaardigers), the court determined as follows at 137:
'Practitioners should carefully analyse the facts of each case to determine , for the purposes of
setting the case down for hearing, whether a greater or lesser degree of relaxation of the Rules of
the ordinary practice of the Court is required. The degree of relaxation should not be greater than
the exigency of the case demands. It must be commensurate therewith . Mere lip service to the
requirements of rule 6(12)(b) will not do and an applicant must make out a case in the founding
affidavit to justify the particular extend of the departure from the norm, which is involved in the
time and day for which the matter be set down.'
[30] If an applicant is responsible for its own urgency, the court will not come to his aid.
This is the principle of self-created urgency (see Schweizer Reneke Vleis Mkpy (Edms)
Bpk v Die Minister van Landbou en Andere 1971 (1) PH F11 (T) at paras 11 to 12).

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Further averments in support of urgency
[31] In addition to the chronological set out of events by the applicant which led up to the
institution of the urgent application, the applicant also made the following allegations in
the founding affidavit in respect of urgency:
'53. From what is set out above, it is abundantly clear that this matter is of the utmost urgency.
54. The applicant has been denied the ability to continue its Subcontract Works as per the
Subcontract Agreement, which income the Applicant relies on to pay its employees and as a
livelihood to those who are employed by the Applicant.
55. In light of the spoliation and the repudiation of the First Respondent, the Applicant is suffering
irreparable harm due to not being able to comply with its obligations due to the First Respondent's
conduct. If the Applicant is not granted the necessary relief, it will suffer penalties and
consequently could end up becoming insolvent as a result of the First Respondent's conduct.
56. The Applicant is under strict time pressures to finish its works by 30 March 2026. These
time limits were already tight, but given the First Respondent's spoliation (referred to above), they
have become increasingly so.
57. The Applicant needs to commence the Subcontract Works as a matter of extreme urgency
in order to ensure that it is able to meet this contractual deadline date.
58.
59. Should the Applicant not receive the necessary relief on an urgent basis, and should the
matter be determined in the ordinary course, the period within which the Applicant is to complete
the works will have come and gone. In such an event, the relief sought by the Applicant will
become moot, resulting in further prejudice to the Applicant and an inability to continue with the
contract that were, which specific performance will become unenforceable.
60. I must also point out that the implementation of the Subcontract Agreement is a matter of

60. I must also point out that the implementation of the Subcontract Agreement is a matter of
existential concern for the Applicant. It has dedicated significant resources, time, and effort into
performing the contract works. This includes expending substantial amounts for equipment,
labour and other assets necessary to complete the works.
61. If the Applicant is not granted the relief sought, it will invariably have to shut down its
business, and place itself into voluntarily winding-up.
62. For this reason, a damages claim is not satisfactory alternative relief for the Applicant - as
Applicant will, in all likelihood, not be in a position to pursue a damages claim.
63. Accordingly, the Applicant cannot and will not obtain redress (substantial or otherwise) in
the ordinary course. The inability to access the Premises and carry out the Sub-contracted
services is currently being hampered. There is no relief which could be sought in the ordinary
course to make up for this harm which First Respondent inflicts on the Applicant.'

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Consideration of the urgency
[32] The applicant set out in detail the chronology of events that led to the letter of
termination and the time frames within which the applicant took further action in reaction
to the letter of termination. There was no inordinate delay before the applicant approached
Court on an urgent basis. The applicant gave a full and proper explanation of each
relevant time period.
[33] With regard to the settlement negotiations between the parties before the applicant
reverted to litigation, it is evident from the relevant case law that it does not detract from
the urgency of the matter.
[34] In its answering affidavit, the first respondent avers that the discussions between the
applicant and the first respondent did not involve settlement negotiations 'to resolve the
matter' as alleged by the applicant. According to the first respondent all that was discussed
was more and more chances that were given to the applicant 'to bring its COIDA
registration and insurance up to date'. In my view, this averment and explanation by the
first respondent does not hold water. The negotiations referred to by the applicant
commenced after the first respondent spoliated the applicant. It is obvious from the papers
that the spoliation, which is admitted by the first respondent, occurred as a result of the
applicant's failure to registrate with COIDA (or FEM). That issue, in my view, therefore
constituted the relevant dispute between the parties and their discussions in relation
thereto, cannot be construed to have been anything else than settlement negotiations
between the parties.
[35] Furthermore, the applicant has set out explicitly the circumstances which it avers
makes the application urgent and the reasons why it claims it will not be afforded
substantial redress at a hearing in due course. It was submitted on behalf of the first
respondent that the applicant made mere sweeping statements in this regard without any

respondent that the applicant made mere sweeping statements in this regard without any
evidence to underpin the allegations. I cannot agree with this submission. The applicant
dealt extensively with the relevant facts and circumstances on which he relies.
[36] It was further argued on behalf of the first respondent that the extend of deviation
from the usual time frames by the applicant does not commensurate with the degree of
urgency. Reference was made to relevant case law in this regard, such as Luna

13
Meubelvervaardigers dealt with above. All that is averred in this regard, in the answering
affidavit, is the following at paragraph 12 of the answering affidavit:
' . . . And lest there be no doubt, Ablon is prejudiced by the short time-period afforded to file papers.
I did not have time to source documents like minutes of meetings held etc.'
In my view, the last-mentioned averment is a mere sweeping statement par excellence.
The first respondent failed to substantiate the statement in any manner whatsoever.
[37] When all the relevant facts, circumstances and legal principles are considered, I am
of the view that the applicant made out a proper case for urgency and that the application
is to be enrolled and heard as an urgent application.
The termination of the subcontract agreement
[38] The applicant, in its founding affidavit read with its replying affidavit, fully explained
what FEM insurance is and that insurance can be obtained either through FEM or COIDA.
In the founding affidavit, at paragraph 31 thereof, the applicant averred that, during the
meeting with the first respondent on 15 October 2025, the first respondent repeatedly
alleged that the applicant was in breach of the subcontract agreement in that it had not
obtained a FEM letter. This allegation is admitted in the answering affidavit. In the
termination letter of the first respondent, it is also alleged that the applicant 'failed to
provide proof of FEM coverage' which 'requirement' constitutes a 'contractual obligation'.
However, it is evident from clause 6.3.1 of the subcontract agreement, quoted earlier
herein, that FEM registration or obtaining of a FEM letter is not a contractual requirement.
It therefore did not constitute a valid ground for the termination of the subcontract
agreement.
[39] Clause 6.3.1 of the subcontract agreement does not contain a specific time frame
within which the insurance registration by the applicant should have taken place or within

within which the insurance registration by the applicant should have taken place or within
which a letter of registration should have been provided by the applicant to the first
respondent. It is trite that when a contract does not fix a time for performance, a demand
by the creditor is necessary in order to place the debtor in mora (see Breytenbach v Van
Wijk 1923 AD 541 at 549). In Crookes Brothers Ltd v Regional Land Claims Commission,
Mpumalanga, and Others [2012] ZASCA 128; 2013 (2) SA 259 (SCA); [2013] 2 All SA 1
(SCA) at para 17, this principle is explained as follows:
'The term mora simply means delay or default. When the contract fixes the time for performance,
mora (mora ex re) arises from the contract itself and no demand (interpel/atio) is necessary to

14
place the debtor in mora. In contrast, where the contract does not contain an express or tacit
stipulation in regard to the date when performance is due, a demand (interpellatio) becomes
necessary to put the debtor in mora. This is referred to as mora ex persona. (See Scoin Trading
(Pty) Ltd v Bernstein NO G 2011 (2) SA 118 (SCA) paras 11 and 12.)'
[40] The first respondent was consequently not entitled to have cancelled the contract.
The purported cancellation of the contract constituted a repudiation of the contract by the
first respondent, which repudiation the applicant did not accept.
[41] The applicant is consequently entitled to its claim for specific performance, subject
to the Court's discretion, which discretion is to be exercised judicially on a consideration
of all the relevant facts (see GB Bradfield Christie's The Law of Contract in South Africa,
8 ed (2022) at 655-656).
[42] In the present matter, the first respondent merely makes the allegation that it cannot
continue to work with the applicant as the applicant cannot be trusted any further.
According to the first respondent the second respondent holds a similar view. However, it
is evident from annexure 'RA29' to the replying affidavit that the first respondent was well
the aware that the applicant was experiencing a delay in obtaining confirmation of
insurance from the Department of Employment and Labour. Objectively considered, there
is, in my view, no valid reason why an order of specific performance should not be granted
in favour of the applicant.
[43] In view of my findings above, it is not necessary to make a determination regarding
the status of the Letter of Good Standing, annexure 'FA8' to the founding affidavit.
The arbitration clause
[44] In the founding affidavit, the following allegations are made in respect of the
arbitration clause:
'64. It is also for this reason that a referral of the dispute to arbitration is neither just nor equitable.

65. The Subcontract Agreement contemplates an extended and lengthy process whereby the
dispute must first be determined by the First Respondent's site agent and thereafter be referred
to arbitration.
66. By the time this process is ventilated, the contractual period within which the Applicant is to
render the Subcontract Works would have come and gone, and any arbitration award would be
entirely moot.'

15
[45) It was argued, on behalf of the applicant, that the arbitration clause is not mandatory
in that it specifically also provides for litigation. It is a dispute resolution procedure which
makes arbitration optional. It was further submitted that this is also the reason why the
first respondent itself did not refer the dispute to arbitration , but merely purported to cancel
the subcontract agreement.
(46) In my view, and based on the case made out by the applicant in the founding
affidavit, the arbitration clause cannot be interpreted to have ousted the jurisdiction of the
Court for purposes of obtaining urgent relief.
Order
[47] The following order is made:
1 The application is enrolled and heard in terms of Rule 6(12) of the Uniform Rules of
Court as a matter of urgency and the time limits as set out in the Rules pertaining to form,
service and filing are dispensed with.
2 The first respondent's purported termination of the subcontract agreement on 16
October 2025 is declared invalid.
3 The first respondent shall comply with its obligations under and in terms of the
subcontract agreement.
4 The first respondent shall do all things necessary to allow the applicant to comply
with its obligations under and in terms of the subcontract agreement including:
4.1 notifying all onsite security personnel to reinstate the applicanf s access and
possession of the premises; and
4.2 preventing any of the first respondent's agents from impeding the applicant's
undisturbed access to, use and possession of the premises; and
4.3 preventing any of the first respondenf s employees , agents or representatives from
preventing the applicant from continuing the subcontract works in terms of the subcontract
agreement.
5 The costs of the application are to be paid by the first respondent, including the costs
of counsel on Scale C.
C VANZYL
JUDGE OF THE HIGH COURT

Appearances
For the applicant:
Instructed by:
For the first respondent:
Instructed by:
16
L Franck
Symington & De Kock, Bloemfontein
N Snellenburg SC
Kramer Weihmann Attorneys Inc, Bloemfontein.

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