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2026
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[2026] ZAGPJHC 88
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Tavon Props (Pty) Ltd v Amon Technologies (Pty) Ltd and Others (2023/062827) [2026] ZAGPJHC 88 (6 February 2026)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA,
GAUTENG LOCAL
DIVISION, JOHANNESBURG
CASE
NO:
2023-062827
(1)
REPORTABLE:
NO
(2)
OF
INTEREST TO OTHER JUDGES: NO
6
February 2026
In the matter between:
TAVON PROPS (PTY) LTD
(Registration
number: 2022/462761/07):
Applicant
[respondent in the
application for leave to appeal]
and
AMON TECHNOLOGIES
(PTY) LTD:
First Respondent
OLIVIA
NGULUBE:
Second Respondent
THEMBELANI
NGULUBE:
Third Respondent
[Applicants
in the
application for leave to appeal]
CITY OF TSHWANE
MUNICIPALITY:
Fourth Respondent
JUDGMENT
MIA J:
[1]
This application is brought
in terms of
section 18(3)
of the
Superior Courts Act 10 of 2013
, to
declare the eviction order granted on 4 June 2024 effective and
enforceable pending the finalisation of the respondents’
appeal
pending before the Full Court of this Division. The applicants also
seek costs in the application.
[2]
A summary of the background
facts is necessary. The applicant became the registered owner of the
property, Portion 43 (a Portion
of 400) of the farm Grootfontein, 394
(Registration Division JR) Gauteng Province. The second and third
respondents (the respondents)
were registered as the owners of the
property before the property was transferred to the applicant. The
applicant has not enjoyed
the benefits of ownership of the property
upon registration of the property in their name. This court granted
an order evicting
the respondents on 4 June 2024. The respondents
were granted leave to appeal the judgment. Consequently, the
applicants brought
an application in terms of
s18(3)
of the
Superior
Courts Act seeking
an order declaring the order granted on 4 June
2024 effective and enforceable pending the respondent’s
application for leave
to appeal.
[3]
The applicants contend that
unless they are permitted to evict the respondents and all persons
holding under them, they are unable
to obtain an income from leasing
the property and in addition they fear they may not be able to
recover the costs incurred for
municipal services which the
respondents fail to pay despite using services. The respondents
maintain that they will be prejudiced
if the relief sought by the
applicant is granted and they were removed from the property. This is
so because they have dependant
children, livestock and will be
prejudiced if they were to move and are not able to find
accommodation. They also maintain that
they are vulnerable persons,
the effect being that they seek a report from the fourth respondent
confirming same and offering them
alternative accommodation.
[4]
Section 18(3)
provides:
"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 or 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.
[5]
In determining whether the applicant presents exceptional
circumstances, a key consideration raised by the applicant is that
they
will not be able to recover the expenses incurred in the
interim, whilst the respondents occupy the property and do not pay
the
municipal expenses. In addition, they are losing rental income
which they contend they may not be able to recover from the
respondents.
[6]
In
Incubeta
Holdings
(
Pty
)
Ltd
and another v Ellis and another
[1]
,
Sutherland DJP, considered the import
s18(1)
–(3) and the
meaning of “exceptional circumstances”. Referring to
MV
Ais Mamas Seatrans
Maritime
v Owners, MV Ais Mamas and another
[2]
,
in Incubeta,
Sutherland
J said
:
[17] What
constitutes "exceptional circumstances" has been addressed
by Thring J in
MV Ais Mamas Seatrans Maritime v Owners, MV Ais
Mamas and another
2002 (6) SA 150
(C), where a summation of the
meaning of the phrase is given as follows at
156I - 157C
[also
reported at
[2000] JOL 7119
(C) - Ed]:
"What does emerge
from an examination of the authorities, however, seems to be the
following:
1
.
What is ordinarily contemplated by the words 'exceptional
circumstances' is something out of the ordinary and of an unusual
nature;
something which is excepted in the sense that the
general rule does not apply to it; something uncommon, rare or
different;
'besonder', 'seldsaam', 'uitsonderlik', or 'in hoë
mate ongewoon'.
2.
To be exceptional the circumstances concerned must arise out of, or
be incidental to, the particular case.
3.
Whether or not exceptional circumstances exist is not a decision
which depends upon the exercise of a judicial discretion: their
existence or otherwise is a matter of fact which the Court must
decide accordingly.
4.
Depending on the context in which it is used, the
word
'exceptional' has two shades of meaning: the primary meaning is
unusual or different; the secondary meaning is markedly
unusual
or specially different.
5. Where, in a statute,
it is directed that a fixed rule shall be departed from only under
exceptional circumstances, effect will,
generally speaking, best be
given to the intention of the Legislature by applying a strict rather
than a liberal meaning to the
phrase, and by carefully examining any
circumstances relied on as allegedly being exceptional."
[7]
Sutherland DJP, opined at paragraph [21] that:
[21]
The context relevant to
section
18
of SCRT
is the set
of considerations pertinent to a threshold test to deviate from a
default position; ie the appeal stays the operation
and
execution of the order. The realm is that of procedural laws whose
policy objectives are to prevent avoidable harm to litigants.
The
primary rationale for the default position is that finality must
await the last court's decision, in case the last court decides
differently, the reasonable prospect of such an outcome, being an
essential ingredient of the decision to grant leave in the first
place. Where the pending happening is the application for leave
itself, the potential outcome in that proceeding, although
conceptually
distinct from the position after leave is granted, ought
for policy reasons, to rest on the same footing.
[8]
In
considering the application in terms of
s18(3)
and the enquiry into
exceptional circumstances, Sutherland DJP noted that this was based
on the facts and not a discretion applied
by the court.
[3]
The consideration is whether the circumstances the parties find
themselves in, is outside of the norm. At paragraph [24],
Sutherland DJP explains the different approach required in the
application of
s18(3):
“…
.But
section 18
(
3
) seems to require a different approach.
The proper meaning of that subsection is that if the loser, who seeks
leave to appeal,
will suffer irreparable harm the order must remained
stayed, even if the stay will cause the victor irreparable harm too.
In addition,
if the loser will not suffer irreparable harm, the
victor must nevertheless show irreparable harm to itself. A hierarchy
of entitlement
has been created, absent from the
South Cape
test.
Two distinct findings of fact must now be made, rather than a
weighing-up to discern a "preponderance of equities".
[9]
The applicant is suffering the loss of income and the amounts due for
municipal services. The account is in arrears and is increasing.
The
respondent must show irreparable harm to themselves as well. On
the facts of the present case, the respondents harm in
the event they
are evicted will have far greater impact which extends to more than
financial loss. Neither the eviction nor the
recovery of monies due
to the applicant for the respondent’s use of utilities or the
loss of rental income and the consequent
expenses are unusual. The
applicant should be able to recover monies from the respondents
whether it is from the same source that
the respondents are able to
pay for private school fees or the businesses registered in the
respondents’ names referenced
by the applicant.
[10]
The parties were ad idem that the nature of the application was such
that costs be granted on scale C. Given the history of the
matter and
the complexity of the dispute the higher scale is appropriate in
respect of counsel’s fees.
[11]
Accordingly, I make the following order:
1.
The application in terms of
section 18(3)
is dismissed.
2.
The applicant to pay the costs on the scale between party and party
and the fees of counsel at scale C.
S
C MIA
JUDGE OF THE HIGH
COURT OF SOUTH AFRICA
AUTENG LOCAL DIVISION,
JOHANNESBURG
DELIVERED
:
This
judgment was handed down electronically by circulation to the
parties’ legal representatives by e mail and publication
on CaseLines. The date and time for hand-down is deemed to be
10h00
on 6 February 2026.
Appearances:
On
behalf of the applicant:
Instructed
by:
Adv
P Strathern SC
Vermaak
Marshal Wellbeloved Inc.
Johannesburg
On behalf of the 1
st
to 3
rd
respondents:
Instructed by:
Adv. Manaka
Cornelius JM Attorneys
Johannesburg
Date of hearing:
Date
of judgment:
15 July 2025
6
February 2026
[1]
2014 (3) SA 189 (GJ)
[2]
2002
(6) SA 150 (C)
[3]
Incubeta
at para[18]