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2026
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[2026] ZAKZPHC 12
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eThekwini Tennis Association and Another v City Manger, eThekwini Metropolitan Municipality and Another (14077/2024P) [2026] ZAKZPHC 12 (16 February 2026)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
CASE NUMBER: 14077/2024P
In
the matter between:
eTHEKWINI
TENNIS ASSOCIATION
FIRST APPLICANT
EVOLV
OUTDOOR (PTY)
LIMITED
SECOND APPLICANT
And
THE
CITY MANGER, eTHEKWINI METROPOLITAN
MUNICIPALITY
FIRST RESPONDENT
eTHEKWINI METROPOLITAN
MUNICIPALITY
SECOND RESPONDENT
JUDGMENT
BEZUIDENHOUT
J
:
[1]
Applicants seek an order in terms of section 18(1) of the Superior
Courts Act putting into effect
the order of Seegobin J of 24 October
2025 and accordingly that it does not be suspended due to the notice
of appeal to the Supreme
Court of Appeal which was filed by
Respondents.
[2]
It was submitted that in terms of section 18(1) and (3) the Court is
empowered to suspend the
implementation of the suspension of the
order pending the application for leave to appeal. There must
however:
1.
Be exceptional circumstances
2.
On a balance of probabilities that he or she will suffer irreparable
harm if the order is
not granted.
3.
On a balance of probabilities that the other party will not suffer
irreparable harm if the
Court so orders.
It
was submitted that Respondents did not point to any harm.
[3]
Respondents submitted that Applicants should have brought the
application earlier. It was
submitted that Applicants were
notified of the application on 23 December 2025. It was
submitted that section 18 applications
are by their nature urgent.
It was submitted that it was only on 22 December 2025 that the
section 18 application became
necessary when the application was
launched at the Supreme Court of Appeal. Due to
miscommunication Applicants only became
aware of the application for
leave to appeal to the Supreme Court of Appeal on 22 January 2026 and
thereafter acted with urgency.
The matter was then dealt with
on an urgent basis.
[4]
There is no general rule about what constitutes exceptional
circumstances each case having to
be decided on its own facts.
Exceptional circumstances denotes something out of the ordinary or of
an unusual nature.
The second and third requirements are the
two sides of the same coin. It was submitted by Applicants that
in the case of
University of the Free State v AfriForum 2018(3) SA
428 SCA in paragraph 15 it was held that the prospects of success are
relevant
in deciding whether a case is exceptional. It was
submitted that in his judgment Seegobin J set out seven grounds for
setting
aside the decision of the Municipal Manager. It was
therefore submitted that there was no prospects of success on
appeal.
It was submitted that the seven reasons on which
Seegobin J set aside the decision of the manager and the rejection
that the land
was public open space showed that the manager did not
apply his mind properly to the bylaw. It was submitted that
each of
the grounds set out by Seegobin J were sufficient for setting
aside the decision. Respondents would thus have to satisfy on
appeal that the court
a quo
was wrong not only on one but on
five of the seven grounds of the judgment. The categorisation
of the land as public space
for purposes of the bylaw is an error of
law which means that the decision fell to be set aside in terms of
section 6(2)(d) of
PAJA and the rejection of the appeal on the
grounds that the land was public open space and that the manager
therefore did not
apply his mind.
[5]
It was submitted that Respondents only challenged three grounds
namely those dealing with section
7(5)(b) of the bylaw. It was
submitted that as Respondents did not include the grounds relating to
the finding that the property
was public open space Respondents have
no prospects of success.
[6]
The ground of appeal deals with the court’s reliance on a
traffic report filed and it is
contended that the court accepted this
report when it set aside the manager’s decision. It is
admitted that it did
not do so on the basis that it was something
which the decision maker ought to have taken into account. The
report did not
exist at the time that the decision was made and
therefore could not have been taken into account. It was
submitted that
the court relied on the report coming to the
conclusion that the matter should not be referred back to the manager
but instead
should make a substitution order. There have been
delays by Respondents in this matter and the boards can be removed
after
it had been erected.
[7]
It was further submitted in respect of irreparable harm that First
Applicant faced imminent closure
because of the delay in having the
board erected. Second Applicant will lose approximately
R250 000.00 per month in
lost revenue for every month that the
board is not operational. Second Applicant will lose
approximately R1 500 000.00
in revenue and R1 000 000.00
in profit for every month that the board is not operational.
Applicants rely on the
financial loss to show irreparable harm.
It is submitted that financial loss should be taken into account to
determine irreparable
harm.
[8]
It was further submitted that there was no harm to Respondents if the
boards were erected.
They will suffer no prejudice because the
boards can be removed if the appeal succeeds and the board would be
compliant with the
bylaws as appears from the report of Emerald Sky.
It is submitted that as far as costs are concerned the conduct of
Respondents
is deserving of censure and justifies a punitive costs
order.
[9]
It was submitted on behalf of Respondents that the decision maker did
not have the report and
that it could therefore not take it into
account and the court should therefore not have accepted the report.
There was no
specific definition of irreparable harm and there was
nothing exceptional in this case. Applicants were not in a
position
to show that there was exceptional circumstances.
[10)
It would appear that the main thrust of Respondents submissions is
that the report of Emerald Sky which Seegobin
J took into account at
page 62 of the papers in paragraph 37 was incorrect. Paragraph
37 reads:
“
It is clear from the above that
had the advice from the municipalities LUC been heeded and the report
of Emeral Sky accepted, the
advice of the ETA would have been
different. I accordingly consider that the failure to utilise
the provisions of section
7(5)(b) of the bylaw on the issue rendered
the process unfair in the circumstances.”
It
was therefore contended by Respondents that the matter should have
been sent back for hearing with the report of Emeral Sky.
[11]
In University of Free State v AfriForum and Another
2018 (3) SA 428
(SCA) it was held that what was required was proof on a balance of
probabilities that the Applicant will suffer irreparable harm
if the
order is not granted. And conversely that Respondent will not
if the order is granted. Further that the exceptional
circumstances 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.
[12]
In Multisure Corporation (Pty) Ltd v KGA Life Limited and Another
2780/2021 (2022) ZAECQBC dated 30 August
2022 it was held in
paragraph 30:
“
The requirements for Multisure
to demonstrate that it will suffer irreparable harm if the relief it
seeks is not granted is in this
instance closely linked to the
duration of exceptional circumstances. In Premier for the
Province of Gauteng and Others v
The DA and Others the Supreme Court
of Appeal confirmed that there is no prohibition on the set of facts
giving rise to irreparable
harm and exceptional circumstances.
The ordinary meaning of harm is injury, damage or ill effect.
For harm to be irreparable
the effects or consequences must be
irreversible or permanent. The financial harm occasioned to
Multisure is continuous and
serious as described. The business
is losing money with each passing month. Multisure has
downsized and being forced
to rely on its saving and the sale of
shares. The onus placed on immovable property on the market in
order to raise further
capital. It has established on a balance
of probabilities that it will suffer irreparable harm if the relief
sought is not
granted.”
[13]
It was held in Incubeta Holdings v Ellis
2014 (3) SA 189
(GJ) in
paragraph 27:
“
The forfeiture of substantive
relief because of procedural delay, even if not protracted in bad
faith by a litigant ought to be
sufficient to cross the threshold of
exceptional circumstances.”
[14]
In Knoop N.O. v Gupta
2021 (3) SA 135
(SCA) it was held in paragraph
48 that it was not a balancing exercise between the two as set out in
the judgment of the University
of The Free State v AfriForum but both
must be established on a balance of probabilities. If
Applicants cannot show that
Respondents will not suffer irreparable
harm by the grant of the execution order that is fatal.
[15]
It must therefore be considered if there are exceptional
circumstances and whether on a balance or probabilities
there will be
irreparable harm to Applicants and none to Respondents. To do
so the facts of the case must be considered.
[16]
As set out above Applicants are suffering severe financial prejudice
which was also found to be a factor
in the Multisure Corporation
(Pty) Ltd case. Respondents will not suffer any prejudice as
appears from the papers and the
submissions and it was also not
contended on behalf of Respondents that it would suffer any financial
prejudice. It was not
even indicated that it would suffer
prejudice of any sort.
[17]
In respect of the prospects of success it was submitted that the
report should not have been taken into account
by Seegobin J in his
judgment. However it appears that it was placed before him and
that there was no objection thereto and
the parties were satisfied
that he consider it in his judgment as he did. He therefore
exercised his judicial discretion
not to refer the matter back but to
make a substituted order. It would accordingly appear to me
that the prospects of success
in this appeal is not of such a nature
that one can say that another court would come to a different
conclusion.
[18]
I do not consider it necessary in these circumstances that an order
of costs on attorney and client scale
be awarded. Respondents
are entitled to exercise their rights in respect of an appeal as is
set out in the Act and Rules.
The
following order is made:
1.
The order of Seegobin J on 24 October 2025 shall not be suspended
pending the final determination of
the applications for leave to
appeal against the order.
2.
Respondents are ordered to pay Applicants costs on scale (c).
P
C BEZUIDENHOUT J.
JUDGMENT
RESERVED ON:
5 FEBRUARY 2026
JUDGMENT
HANDED DOWN:
16 FEBRUARY 2026
COUNSEL
FOR APPLICANTS:
A J RALL SC
Instructed by:
Vanessa Fernihough
& Associates
Sandton
Email:
vanessa@vfalw.co.za
rochelle@vfalaw.co.za
Ref: V Fernihough/MV0019
c/o: Grant & Swanepoel
Attorneys
Pietermaritzburg
Email:
anthony@gsalaw.co.za
COUNSEL
FOR RESPONDENTS:
J P BROSTER
Instructed by:
Hughes Madondo
Inc.
Umhlanga Rocks
Tel: 031 584 6969
Cel: 083 650 6779
Email:
denise@h-m.co.za
Ref: Denise Keekan/mrs/EM199
c/o Messenger
King
N Nhlapo
Attorney
Pietermaritzburg