IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
Case No: 2025-250950
In the matter between:
CAPE TOWN MINSTREL CARNIVAL ASSOCIATION Applicant
And
CITY OF CAPE TWON Respondent
Neutral citation: Cape Town Minstrel Carnival Association V City of Cape Town
(Case no 2025-250950) [2026] ZAWCHC … (18 February 2026)
Coram: LEKHULENI J
Heard: 31 December 2025
Delivered: 18 February 2026
REASONS FOR JUDGMENT
___________________________________________________________________
LEKHULENI J:
Introduction
[1] On 29 December 2025, I granted a mandatory order compelling the respondent to
make available to the applicant a suitable venue within its jurisdiction for the hosting
of the applicant’s Minstrel competition events, being a medium -risk gathering as
contemplated in the Safety at Sports and Recreational Events Act 2 of 2010
(SASREA), on the following dates:
1 January 2026;
10 January 2026;
17 January 2026; and
24 January 2026.
[2] Pursuant to the granting of that order, the respondent applied for leave to appeal
against that order, contending, inter alia, that this Court erred in granting the final
relief in the form of a mandatory interdict, in circumstances where the applicant failed
to establish the essential require ments for such a remedy. The respondent also
asserted that this Court erred in accepting the applicant's version and discounting
the respondent's evidence regarding venue availability and risk grading, and that the
respondent's withdrawal of the applicant' s Vygieskraal booking was lawful and
compelled by SASREA. The respondent submitted that the Court failed to appreciate
that SASREA compliance is mandatory and that the respondent had no discretion to
permit the use of a non-compliant venue.
[3] After the application for leave to appeal was filed, the order of this Court issued
on 29 December 2025 was automatically suspended in terms of s 18(1) of the
Superior Courts Act 10 of 2013 ( ‘the Superior Courts Act ’). Subsequent thereto, the
applicant brought an application in terms of s 18(3) read with s 18(1) of the Superior
Courts Act on an urgent basis seeking an order directing that, notwithstanding the
respondent's filing of its application for leave to appeal, the order granted by this
Court on 29 December 2 025, be immediately enforceable. In addition, t he applicant
sought an order that the respondent be ordered to comply with the terms of the order
immediately. The applicant also sought an order directing the respondent to pay the
costs of the application on a punitive scale, including all costs occasioned by the
urgency of the application. The respondent opposed the application and filed the
urgency of the application. The respondent opposed the application and filed the
necessary answering affidavit. The s 18(3) application was subsequently enrolled for
hearing on 31 December 2025 at 21h00 hours.
[4] After carefully considering the arguments presented by both parties and
thoroughly reading the record , I gave an ex-tempore. I granted the relief requested
by the applicant in terms of s 18(3) in read with s 18(1) of the Superior Courts Act, as
articulated in the applicant’s notice of motion. The Court also ordered the respondent
to pay the costs of the application on a party -and-party scale, including counsel's
costs on scale B. The respondent subsequently filed an application for leave to
appeal against that order and requested this Court to provide reasons in terms of
rule 49(1)(c) of the Uniform Rules of Court. I must emphas ise that in the ex-tempore
judgment that I gave on 31 December 2025, I did not just issue an order. However, I
gave reasons for that order as enjoined by s 18(4)(i) of the Superior Courts Act. To
the extent that I have been requested to provide reasons for that order, I will
supplement those reasons already on record.
Principal submissions by the parties
[5] At the hearing of the s 18(3) application, Ms Adriaanse, counsel for the applicant,
submitted that the respondent filed an application for leave to appeal against the
order of this Court of 29 December 2025 and that there has been no meaningful
engagement between the applicant and the respondent. Counsel submitted that time
was of the essence in that if the respondent did n ot comply with the court order, the
applicant would lose the opportunity to hold its Minstrel competition this year. Ms
Adriaanse further submitted that this would cause the applicant and its members to
suffer irreparable harm if the order is not granted, while the respondent won't suffer
any harm whatsoever.
[6] On the other hand, Mr Kirk -Cohen SC, the respondent's counsel, submitted that
the matter is not urgent. Mr Kirk -Cohen argued that the difficulty in the applicant’s
application was compounded by the fact that there was no request made by the
application was compounded by the fact that there was no request made by the
applicant for a permit to hold the Minstrel competition. Counsel submitted that the
respondent facilitated the applicant's compliance with all applicable event permit
requirements as set out in the court order. According to Mr Kirk -Cohen, the
applicant’s Minstrel competition could not proceed without the necessary permit.
Counsel argued that the applicant and its members failed to make out a case for an
order in terms of s 18(3) and applied that the application be dismissed.
Issues to be determined
[7] From the discussion above, this Court was enjoined to determine whether, under
the specific circumstances of this case, the applicant successfully established a
basis for the lifting of the suspension of the order issued on 29 December 2025 as
envisaged in s 18(3) read with s 18(1) o f the Superior Courts Act. Simply put, the
question was whether the Court should grant an execution or enforcement order in
terms of s 18(3) of the Superior Courts Act.
Discussion
[8] For the sake of completeness, the relevant part of s 18 of the Superior Courts Act
provides as follows:
‘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 cou rt does not so order
and that the other party will not suffer irreparable harm if the court so orders.’
[9] It is an established common law rule of practice in our Courts that generally, the
execution of a judgment is automatically suspended upon the noting of an appeal,
with the result that, pending the appeal, the judgment cannot be carried out. Cash
Crusaders Franchising (Pty) Ltd v Cash Crusaders Franchisees 2024 (4) SA 141
(WCC) para 57. No effect can be given thereto, except with the leave of the Court
which granted the judgment. To obtain such leave, the party in whose favour the
judgment was given must ma ke a special application as t he applicant did in this
matter. Gentiruco A.G . v Firestone SA (Pty.) Ltd 1972 (1) SA 589 (AD) at 667;
Standard Bank of SA Ltd . v Stama (Pty) Ltd 1975 (1) SA 730 (AD) at 746) . This
common law rule has been codified and incorpor ated in section 18 of the Superior
Courts Act.
[10] The purpose of this rule as to the suspension of a judgment on the noting of an
appeal is to prevent irreparable harm from being done to the intending appellant,
either by levy under a writ of execution or by execution of the judgment in any other
manner appropriate to the nature of the judgment appealed from. South Cape
Corporation (Pty) Ltd v Engineering Management Services (Pty) Ltd 1977 (3) SA 534
(A) at 545A-C. It is trite that the court to which an application for leave to execute is
made has a wide general discretion to grant or refuse leave and, if leave be granted,
to determine the conditions upon which the right to execute shall be exercised. South
Cape Corporation (Pty) Ltd v Engineering Management Services (supra) at 545B-C.
[11] Importantly, s 18 stipulates three prerequisites for an enforcement order which
must be established on a balance of probabilities. Firstly, exceptional circumstances
must exist for an enforcement order to be granted. Secondly, the applicant must
show that it would suffe r irreparable harm if the order granted, in this case, the
mandatory interdict is not enforced, and thirdly, the applicant must prove that the
respondent will not suffer any irreparable harm if the enforcement order is granted.
An applicant for an executio n order must prove all three requirements. In other
words, all these three requirements must be fulfilled for an execution order to be
words, all these three requirements must be fulfilled for an execution order to be
granted. (Cash Crusaders Franchising , supra para 59). I propose to deal with these
requirements in turn ad seriatim.
Exceptional Circumstances
[12] Courts have always eschewed any attempt to lay down a general rule as to what
constitutes and qualifies as exceptional circumstances. See MV Ais Mamas Seatrans
Maritime v Owners, MV Ais Mamas, and Another 2002 (6) SA 150 (C) at 156H –
157C; Incubeta Holdings (Pty) Ltd and Another v Ellis and Another 2014 (3) SA 189
(GJ) para 16. The reasons being that the enquiry is factual in nature. An exceptional
circumstance is a fact that gives rise to a deviation or departure from the general rule
that final orders are suspended pending appeal. The standard is flexible and
depends on the facts of each case. Ntlemeza v Helen Suzman Foundation 2017 (5)
SA 402 (SCA) at paras 37 -39. Seatrans Maritime v Owners, MV AIS MAMAS, and
Another 2002 (6) SA 150 (C) at 156F. Exceptional circumstances must arise from the
facts and circumstances of the case.
[13] In th e present matter, and pursuant to the reasons I gave in the main
application, I hold the view that the applicant has proven exceptional circumstances
for the granting of an order in terms of s 18(3). It cannot be disputed that the Minstrel
competition and the carnival are cultural traditions that date back to the early years
of colonisation and slavery in the Cape. This traditi on has been observed annually
for many decades and holds significant meaning for both the applicant and its
members. It is celebrated only at the beginning of January each year. Once that time
passes, the celebration loses its significance. It cannot be po stponed to mid-year, as
doing so would dilute the essence of this special occasion. Postponing the event
indefinitely would also infringe on the applicant and its members' rights to celebrate
their culture and tradition.
[14] Significantly, it was not dis puted at the hearing of this matter that costs have
been incurred for the planning and preparation of the event. The transport for the
applicant's participants has been arranged. Security for the event, judges, and
medics ha ve been secured. Various arrange ments that involved planning and
preparation had been invested in the intended competition. A suspension of the
preparation had been invested in the intended competition. A suspension of the
order, in my view, would cause irreparable harm to the applicant and have far -
reaching consequences to the 2000 members of the applicant's assoc iation who
have also incurred costs in preparation for the competition as detailed herein below.
[15] It bears emphasis that the applicant is a non -profit organisation, and the
participants in this event come from extremely disadvantaged background s and
communities. The resources they invested in preparing for this competition hold
immense value for them, representing not just financial expenditure but also a
heartfelt commitment to seizing this opportunity. In my opinion, the investment and
planning they made in preparing for this competition is significant to them and should
not be easily discounted. Notably, the date for the Minstrel competition has been set
and made known to all members of the applicant well in advance. The participants of
the competition have taken leave in contemplation of the competition. Clothes and
apparel for the competition have been sewn in preparation for the competition. When
the respondent confirmed the booking, the applicant excitedly informed its 2000
members, who eager ly prepared for the upcoming competition. According to the
applicant, t his communication inspired excitement and readiness among all
participants. The applicant also confirmed the competition with vendors and
suppliers and invested significant resources in planning and preparing for the event.
Evidently, the applicant's members invested their scarce resources and energy in
preparing for this event.
[16] In my view, the cumulative effect of all the circumstances mentioned above,
gives rise to the exceptiona lity contemplated in s 18(1) of the Act. The respondent
has the means and resources to assist the applicant in securing a venue that is safe
and meets all SASREA requirements. The non-application for the permit cannot, in
my view, be used as a barrier to t he applicant exercising their cultural rights. The
application for a permit, with the assistance of the respondent, could be fast -tracked,
as it was confirmed on record at the hearing of this application that the respondent
had a similar application fast -tracked in the past. I therefore conclude on this point
that the applicant established exceptionality as envisaged in s 18(1) of the Act. I turn
to consider the two remaining requirements envisaged in s 18(3) of the Act. I will
address them jointly as they are inextricably intertwined.
address them jointly as they are inextricably intertwined.
Has the applicant shown that it will suffer irreparable harm without the
execution order and that the respondent won't suffer harm if it is granted?
[17] Section 18(3) requires the applicant for an execution order to establish that it will
suffer irreparable harm if the order is not granted and that the respondent will not
suffer irreparable harm if the order is granted. These two requirements must be
established on a balance of probabilities. The judgment of University of the Free
State v Afriforum and A nother 2018 (3) SA 428 (SCA) at para 18, indicates that the
requirement of irreparable harm to the applicant and no irreparable harm to the
respondent, unlike the common law position, does not involve a balancing exercise
between the two but must both be e stablished on the balance of probabilities. In
Knoop NO and Others v Gupta and Others 2021 (3) SA 135 (SCA) at para 48, the
Court noted that if the applicant cannot show that the respondent will not suffer
irreparable harm by the grant of the execution order, that is fatal.
[18] The applicant avers that unless the order is enforced, the applicant will suffer
irreparable harm. Further, that t he respondent will not suffer irreparable harm if the
order is granted. As mentioned earlier, the Court has been inf ormed that numerous
preparations have been made for this event. People have taken leave for this
competition, transportation has been arranged, service providers have been hired
and compensated, judges for the competition have been secured, and security
measures have been put in place to ensure a smooth event. Additionally, 2,000
members of the applicant have invested resources in preparing and planning for this
competition.
[19] As foreshadowed above, this competition is annual, and it is a heritage for the
applicant and members of its association. In my view, the applicant will suffer
irreparable prejudice if the order remains suspended. Importantly, if the order is not
enforced, the applicant and its members will be den ied the right to participate in their
culture and heritage, which is guaranteed by the Constitution. On the other hand, I
am of the opinion that there is no harm whatsoever that will be suffered by the
respondent if the suspension of the order is lifted.
[20] I must also stress that the respondent has placed nothing before the Court to
indicate whether it will suffer any harm or not if the suspension order is lifted. I
indicate whether it will suffer any harm or not if the suspension order is lifted. I
accept that the onus is on the applicant to prove the three requirements mentioned
above. However, in this case, the respondent had a duty to assist the applicant in
exercising their cultural rights and heritage. The applicant and its members cannot
realise these rights without the applicant's intervention. To this end, at the very least,
the respondent must have placed information before the Court why the lifting of the
suspension would affect it negatively. The respondent's counsel submitted that the
respondent remains firmly committed to supporting the Minstrel tradition and its rich
culture and heritage. This commitment is highly commendable. However, the
respondent must comply with this Court's order to demonstrate its commitment in
this regard.
[21] I am mindful that this application was brought on an urgent basis; however, I
expected, at the very least, the respondent to have placed before the Court evidence
under oath as to why it could not comply with the order of 29 December 2025. The
respondent placed nothing before the Court other than the exchange of
communication between its legal representative and the applicant's attorney.
[22] Given all these considerations, the Court was satisfied that the applicant
succeeded in making out a case for the execution of the order in terms of s 18( 3)
read with s 18(1) of the Superior Courts Act.
Order
[23] In the result, the following order was granted:
23.1 Notwithstanding the respondent's filing of an application for leave to appeal
against this Court's order, it is ordered that in terms of s 18(3) read with s 18(1) of the
Superior Courts Act 10 of 2013, the mandatory interdict granted by this Court on 29
December 2025 is hereby made immediately enforceable.
23.2 The respondent was ordered to immediately comply with the terms of that order.
23.2 The respondent was ordered to pay the costs of this application on a party and
party basis, including the costs of counsel on scale B.
_____________________________
LEKHULENI J
JUDGE OF THE HIGH
COURT
APPEARANCES
For the Applicant: Adv Adriaanse
Instructed by: Roelf Jumat Attorney Inc
For the Respondent: Adv Kirk-Cohen SC
Adv Wynne
Instructed by: Timothy and Timothy Attorneys