Summary of Judgment

Introduction

This judgment concerned an urgent interlocutory application (Part A) for interim relief pending the determination of related review proceedings. The applicant sought an order compelling the South African Board for Sheriffs to issue him with a Fidelity Fund Certificate so that he could continue to act as sheriff, pending the outcome of review relief (Part B) challenging the Board’s refusal to issue that certificate.

The parties were Johannes Tseke Mphahlele (the applicant), the South African Board for Sheriffs (first respondent, “the Board”), the Minister of Justice and Constitutional Development (second respondent, “the Minister”), and Namedi Tshepo Mphahlele (third respondent), who had been appointed by the Minister as sheriff for the same area in circumstances disputed by the applicant.

The procedural history involved two streams of litigation. First, after the applicant learned that the Minister had appointed the third respondent and that the Board regarded the applicant’s appointment as having fallen away, the applicant launched a separate application under case number B6834/25 seeking to suspend the alleged retraction of his appointment and to suspend the third respondent’s appointment; that matter was still pending and judgment was awaited. Second, after the Board refused to issue a Fidelity Fund Certificate, the applicant instituted the present urgent Part A proceedings seeking interim relief pending the hearing of Part B (a review of the Board’s refusal) and pending the finalisation of Part B in case B6834/2025.

The dispute’s general subject matter concerned the lawfulness and interim consequences of (i) the Board’s refusal to issue a Fidelity Fund Certificate, (ii) the effect of an expungement of a criminal record on disqualification under the Sheriffs Act, and (iii) the administrative-law implications of competing sheriff appointments where the earlier appointment had not been set aside or formally retracted.

Material Facts

The applicant served as Sheriff for Lephalale from 1 December 2012 to 2 December 2025, and as Acting Sheriff for Pretoria North East High and Lower Courts from 1 March 2023. On 15 September 2025, the Minister appointed him as Sheriff for Pretoria North East with immediate effect; he accepted the appointment on 18 September 2025. His letter of appointment stated that he had to immediately apply for a Fidelity Fund Certificate, and that failure to obtain the certificate could result in repudiation of the appointment.

On 3 October 2025, the applicant became aware that the Minister had appointed the third respondent as sheriff for Pretoria North East on 28 September 2025, effective 1 November 2025. The applicant was informed by the Board that the Minister had retracted his appointment due to his failure to timeously submit a Police Clearance Certificate, required for security clearance and finalisation of his appointment; this communication occurred on 6 October 2025. In the separate proceedings (B6834/25), however, the Minister’s position was that the appointment was provisional, subject to a condition precedent that the applicant obtain a Fidelity Fund Certificate, which condition had not been fulfilled; the Minister stated she had not retracted the appointment.

On 8 October 2025, the applicant obtained a Police Clearance Certificate reflecting that he had been convicted on 14 July 1987 of robbery and sentenced to five lashes corporal punishment and three months’ imprisonment wholly suspended for three years. The applicant disputed the correctness of that certificate, contending that he had not been convicted of robbery but of common assault, and that he had no recollection of a suspended custodial sentence. Despite this dispute, he accepted that a suspended custodial sentence would still be custodial and would render him disqualified under section 33(1)(h) of the Sheriffs Act, unless the Board granted relief under section 33(2) on the basis that issuing a Fidelity Fund Certificate would be justified in the interests of fairness towards him.

On 13 October 2025, the applicant applied to the Board for a Fidelity Fund Certificate and sought relief in terms of section 33(2). He relied on the passage of time (almost 40 years), his youth at the time (18), the asserted absence of dishonesty, and his subsequent record, including his admission as an attorney, his service as a sheriff for about 13 years, and his membership of the Board since 18 June 2024.

When applying for the certificate, the applicant also sought expungement of his criminal record under section 271C of the Criminal Procedure Act. He notified the Board on 23 November 2025 that he had obtained an expungement and asked for a decision on his Fidelity Fund Certificate application. On 10 December 2025, he was notified that his application had been declined.

The applicant then brought the present urgent application on 15 December 2025, seeking a Fidelity Fund Certificate pending the review of the refusal decision. A critical practical fact was that the applicant’s existing Fidelity Fund Certificate for 2025 would lapse at the end of 2025 because, under section 32(2) of the Sheriffs Act, such certificates are valid until 31 December of the year for which they are issued. Without a new certificate, the applicant could not perform sheriff functions; he also employed fourteen employees whose work depended on his ability to act lawfully as sheriff.

In addition, the judgment treated as common cause that the Minister had not retracted the applicant’s appointment, notwithstanding the Board’s stance during argument that the appointment was subject to a condition precedent and had lapsed automatically. This factual premise was central to the court’s assessment of the competing appointments and the rationality of the third respondent’s appointment.

Legal Issues

The court was required to determine whether the applicant had met the requirements for urgent interim relief pending review. This raised a mixed inquiry of fact, law, and application of legal standards to facts, rather than a purely factual dispute.

The central legal questions included whether the matter was urgent within the meaning of Uniform Rule 6(12), and whether the applicant had established the conventional elements required for interim relief, particularly a prima facie right grounded in good prospects of success in the contemplated review.

A core issue within the “prima facie right” inquiry was whether the Board’s refusal decision was reviewable on the basis that it was materially influenced by an error of law and/or a failure to consider relevant considerations, particularly concerning the legal effect of expungement on disqualification under section 33(1)(h) of the Sheriffs Act (“has at any time been convicted”).

The case also required the court to consider whether it was competent to order the Board to issue a Fidelity Fund Certificate pending review, in light of authority relied on by the Board.

Further issues included whether the applicant would suffer irreparable harm without interim relief, whether the balance of convenience favoured granting relief given the competing appointment and public-interest consequences, and whether there existed an adequate alternative remedy, such as an expedited review.

Court’s Reasoning

Urgency

The court accepted that the application was urgent because the applicant’s Fidelity Fund Certificate for 2025 would lapse at year-end under section 32(2), and the refusal decision was only communicated on 10 December 2025, leaving insufficient time to obtain relief through ordinary motion-court processes. The court reasoned that, absent a Fidelity Fund Certificate, the applicant could not act as sheriff, and the matter could not await the ordinary timetable of review proceedings (which were not ripe for hearing).

Prima facie right and prospects of success in the review

The court applied the principle that a prima facie right in interim-review contexts requires showing good prospects of success and reliance on strong grounds likely to succeed, with reference to Economic Freedom Fighters v Gordhan 2020 (6) SA 325 (CC).

A substantial part of the court’s reasoning concerned the status of the applicant’s appointment. The Board contended that the appointment was provisional and had lapsed automatically because the applicant had not obtained a Fidelity Fund Certificate as a condition precedent. The court rejected the characterisation of the appointment term as a self-executing condition that automatically unravelled the appointment. It treated the relevant provision as a condition of appointment that allowed for retraction if a certificate were not obtained, rather than an automatic nullification mechanism.

Proceeding from the premise that it was common cause that the Minister had not retracted the appointment, the court reasoned that the appointment stood as administrative action until set aside, invoking the Oudekraal principle as stated in the judgment. On that basis, the court considered the appointment of the third respondent, made while the applicant’s appointment still stood, to be prima facie irrational. This supported the applicant’s case that the third respondent’s appointment was materially influenced by an error of law, which the court linked to section 6(2)(d) of PAJA.

The court then addressed the Board’s stated position (in correspondence) that expungement did not matter because section 33(1)(h) uses the words “has at any time been convicted”, which the Board viewed as capturing historical conduct irrespective of the criminal record’s current status. The court tested this position against Constitutional Court authority discussing the effect of pardons, amnesty, and related relief on prior convictions and their consequences, relying in particular on Masemola v Special Pensions Appeal Board and Another (CCT260/18) [2019] ZACC 39, The Citizen and Others v McBride 2011 (4) SA 191 (CC), and Du Toit v Minister of Safety and Security 2009 (6) SA 128 (CC).

Drawing from those authorities, the court highlighted the distinction between retrospectivity and retroactivity, and reasoned that while an expungement may not operate retroactively in a manner that rewrites history, it could at minimum act prospectively. On the court’s assessment, because the Board had been notified of the expungement before it made its decision on 10 December 2025, the expungement had the effect (at least prospectively) of restoring the applicant to an unblemished legal and civil status at the time of decision-making. Accordingly, the court reasoned that the applicant was no longer disqualified by virtue of the conviction at the time the Board decided the application.

From this, the court inferred that the Board’s stance—treating the applicant as disqualified “as a matter of law”—meant that expungement was not taken into account as a relevant consideration, and that the Board’s approach reflected an error of law about the effect of expungement. The court further characterised the Board’s approach as applying fairness to the public as a yardstick, whereas the statute required assessment in relation to “fairness to him” for purposes of section 33(2).

The court added that, given the applicant’s reliance on section 33(2), fairness required that the applicant be given an opportunity to address the Board’s perception of the ongoing disqualification, including the question whether expungement operated ex tunc or ex nunc in the relevant sense. In light of these considerations, the court held that the applicant had established good prospects of success in the review, and thus a prima facie right for interim relief.

Competence to order interim issuing of a Fidelity Fund Certificate

The Board relied on Ntsibantu v The Minister of Justice and Correctional Services 2018 JDR 0574 (YVCC) and Segwana N.O. v South African Board for Sheriffs 2025 JDR 0492 (GP) to argue that the court lacked power to grant an interim order that a Fidelity Fund Certificate be issued pending review.

The court distinguished Ntsibantu on the facts, noting that Mr Ntsibantu was found disqualified and failed to apply for exemption under section 33(2), with the result that he could show no prospects of success in a review. On that basis, the court treated Ntsibantu as not barring relief in the present matter, where the applicant had sought section 33(2) relief and advanced a review case. The court also distinguished Segwana, reasoning that it concerned final relief, not interim relief.

Irreparable harm, balance of convenience, and alternative remedy

On irreparable harm, the court considered the immediate consequence that the applicant could not perform sheriff functions without a current Fidelity Fund Certificate, notwithstanding that his appointment remained in place. The court also took into account the impact on the applicant’s fourteen employees, whose ability to discharge duties depended on his lawful ability to act.

On the balance of convenience, the court reasoned that without interim relief the applicant would be unlikely to obtain meaningful review relief even if he succeeded later, because the inability to act in the interim would undermine the practical benefit of any eventual review success. It further reasoned that the third respondent’s appointment, made while the applicant’s appointment still stood, was prima facie irrational; and that the risk that service by the third respondent could later be assailed introduced a public-interest component into the balance of convenience. The court concluded that the applicant should be permitted to continue rendering services without the ongoing uncertainty.

On alternative remedy, the court held that an expedited review was not an adequate remedy, because the review would take substantial time to prepare, including production of the record. The court therefore found that the applicant had no adequate alternative to urgent interim relief.

Outcome and Relief

The court granted the urgent interim relief. It held that the matter was urgent and dispensed with the usual forms, service and time periods under Uniform Rule 6(12).

Pending finalisation of Part B in the present application and Part B in case number B6834/2025, the court ordered the first respondent to forthwith issue the applicant with a Fidelity Fund Certificate for Pretoria North East High and Lower Courts, and to remove from the first respondent’s website any reference to the third respondent as the sheriff for Pretoria North East High and Lower Courts.

The court ordered the first respondent to pay costs of the application on Scale C.

Cases Cited

Economic Freedom Fighters v Gordhan 2020 (6) SA 325 (CC).

Masemola v Special Pensions Appeal Board and Another (CCT260/18) [2019] ZACC 39.

The Citizen and Others v McBride 2011 (4) SA 191 (CC).

Du Toit v Minister of Safety and Security 2009 (6) SA 128 (CC).

Ntsibantu v The Minister of Justice and Correctional Services 2018 JDR 0574 (YVCC).

Segwana N.O. v South African Board for Sheriffs 2025 JDR 0492 (GP).

Legislation Cited

Sheriffs Act (reference to section 32(2), section 33(1)(h), and section 33(2)).

Criminal Procedure Act (reference to section 271C).

Promotion of Administrative Justice Act 3 of 2000 (reference to section 6(2)(d)).

Constitution of the Republic of South Africa, 1996 (reference to section 84(2)).

Rules of Court Cited

Uniform Rules of Court, Rule 6(12).

Held

The court held that the urgent application met the requirements for interim relief pending review. It held that urgency was established due to the impending lapse of the applicant’s Fidelity Fund Certificate and the timing of the Board’s refusal decision.

The court held that the applicant demonstrated a prima facie right by showing good prospects of success in review proceedings. This was grounded in the court’s view that the applicant’s appointment as sheriff had not been retracted and therefore stood until set aside, and that the Board’s approach to disqualification and expungement disclosed reviewable error, including an error of law and a failure to consider relevant considerations.

The court held that the risk of irreparable harm, the balance of convenience (including public interest implications), and the absence of an adequate alternative remedy favoured granting interim relief.

LEGAL PRINCIPLES

The judgment applied the principle that, for interim relief pending a review, an applicant must show a prima facie right by demonstrating good prospects of success in the contemplated review and strong grounds likely to succeed, as articulated with reference to Economic Freedom Fighters v Gordhan 2020 (6) SA 325 (CC).

The judgment applied the administrative-law principle (referred to in the judgment as the Oudekraal principle) that an administrative act, such as an appointment, stands until set aside, and cannot be treated as void merely because it is alleged to be defective, absent proper setting aside or lawful retraction.

The judgment applied review principles under PAJA, including that administrative action is reviewable where it is materially influenced by an error of law (with specific reference to section 6(2)(d)), and where relevant considerations are not taken into account.

In evaluating the effect of expungement, the judgment applied Constitutional Court authority distinguishing retrospectivity and retroactivity, and treated expungement as capable, at minimum, of operating prospectively such that it could affect legal status and eligibility at the time an administrative decision is taken, where expungement has occurred and has been brought to the decision-maker’s attention before the decision is made.