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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
Case Number: 2025-248625
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: YES
DATE 27 FEBRUARY 2026
SIGNATURE
In the matter between:
WANDERING INVESTMENTS (PTY) LTD Applicant
and
MUKS BUS TRUCKS AND TRAILERS (PTY) LTD Respondent
Delivered: This judgment was prepared and authored by the Judge whose name is
reflected and is handed down electronically by circulation to the parties/their legal
representatives by e -mail and by uploading it to the electronic file of this matter on
Caselines. The date for hand-down is deemed to be 27 February 2026.
JUDGMENT
KUBUSHI, J
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Introduction
[1] The applicant launched an urgent application in terms of section 18(3) of the
Superior Courts Act 10 of 2013 (the Act) seeking an order that the eviction order
granted on 23 January 2026 by Strijdom J, operate and be executed notwithstanding
the application for leave to appeal . The eviction order directed the respondent to
vacate the commercial property known as ERF 5[...] W[...] P[...] Manor x65, Pretoria
(the property), within fourteen (14) days.
[2] The respondent is the lessee and occupier of the property in question, the
lawfulness of which is in dispute . The parties concluded a lease agreement in April
2024 for the occupation date of 1 May 2024 until 1 June 2027, effectively a 3 -year
lease period. The respondent fell behind on rental , and on 28 October 2025, after
persistent non -compliance, the applicant purported to cancel the lease on one
month's notice in terms of clause 26.1.6 of the lease agreement. The respondent
disputed that the lease was validly cancelled on the basis that the applicant failed to
comply with clause 35 when exercising clause 26.
[3] The dispute was heard by Strijdom J who decided that the respondent was in
unlawful occupation of the property, ordered the cancellation of the lease agreement
and made an order evicting the applicant from the property within fourteen days of
the order. On 4 February 2026, the respondent delivered an application for leave to
appeal the eviction order and , as such , in terms of section 18(1) of the Act, the
eviction order was automatically suspend ed pending the finalisation of the
application for leave to appeal and any appeal thereafter, unless this Court orders
otherwise.
Urgency
[4] In support of its argument that the matter be heard on an urgent basis, the
applicant conten ds that the matter is urgent because it has secured an incoming
tenant on a five- year lease in respect of the property. It appears that the said tenant
tenant on a five- year lease in respect of the property. It appears that the said tenant
was to take occupation by 1 February 2026 , but because of a direct consequence of
the respondent either only vacating the premises within fourteen days of the eviction
order, or in the event of non -compliance by respondent, after the sheriff has
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executed the court order to evict the respondent, the applicant was compelled to
renegotiate the commencement date of the lease to 1 March 2026. The applicant
was as a result compelled to approach this court on an urgent basis first, due to the
respondent’s application for leave to appeal and its consequential suspension of the
eviction order, and second because it required two weeks within which to prepare the
property for occupation by the new tenant.
[5] The applicant submits that it cannot obtain substantial redress in due course if
the matter is enrolled in the ordinary course . This it conten ds is so because i f the
application is not heard urgently , i t will suffer immediate and ongoing financial
prejudice, including loss of a secured long -term tenant, rental income, continued
deprivation of possession, and the inability to commercially utilise or lease the
property. The application warrants urgent determination, particularly given the
imminent occupation date of the incoming tenant on 1 March 2026, so it is argued.
[6] My take is that that this matter should continue to be heard on an urgent basis
pursuant to the urgency that was granted when the matter was argue d before
Strijdom J, which urgency remains prevalent in the present application. The matter
was declared urgent then, and it should remain urgent before this Court.
Applicable Law
[7] The requirements for the implementation of an execution order pending an
appeal is governed by section 18 of the Act. The provisions of section 18, in
relevance, provides that
“(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) … … …
(3) A court may only order otherwise as contemplated in subsection (1) or (2), if the
(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.
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(4) If a court orders otherwise, as contemplated in subsection (1)—
(i) the court must immediately record its reasons for doing so;
(ii) the aggrieved party has an automatic right of appeal to the next highest
court;
(iii) the court hearing such an appeal must deal with it as a matter of extreme
urgency; and
(iv) such order will be automatically suspended, pending the outcome of such
appeal.”
[8] The parties referred me to several judgments wherein the requirements for
the implementation of an execution order pending an appeal have been discussed.
The Supreme Court of Appeal has recently, in Tyte Security Services CC v Western
Cape Provincial Government and Others, 1 had an opportunity to relook at these
requirements. The following is stated in that judgment:
“This Court has examined the requirements for the implementation of an execution
order pending an appeal in University of the Free State v
Afriforum (Afriforum); Ntlemeza v Helen Suzman Foundation ; Premier of Gauteng v
Democratic Alliance; Knoop v Gupta (Knoop) ; and, most recently, in Zuma v Downer
and Another. Relying, in part, on some of the statements made in those judgments,
in particular Afriforum and Knoop, counsel for Tyte, argued that it was for an
applicant for an execution order (in the position of Royal), to establish three separate,
distinct and self -standing requirements, namely: first, exceptional circumstances
(the first); second, that it will suffer irreparable harm if the order is not made
(the second); and, third, the party against whom the order is made (in this case Tyte)
will not suffer irreparable harm if the order is made (the third).
Whilst there are indeed statements in those judgments that would appear to support
counsel’s fundamental hypothesis, they seem to have been made in passing. They
thus call for closer examination in this matter. An important point of departure, so it
seems to me, is that consideration of each of the so -called three requirements is not
seems to me, is that consideration of each of the so -called three requirements is not
a hermetically sealed enquiry and can hardly be approached in a compartmentalised
fashion.
1 (479/2024) [2024] ZASCA 88; 2024 (6) SA 175 (SCA) (7 June 2024) paras 9 -17.
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It is important to recognise that the existence of ‘exceptional circumstances’ is a
necessary prerequisite for the exercise of the court’s discretion under s 18. If the
circumstances are not truly exceptional, that is the end of the matter. The application
must fail and falls to be dismissed. If, however, exceptional circumstances are found
to be present, it would not follow, without more, that the application must succeed. In
its consideration of s 17(2) (f) of the Act, the Constitutional Court pointed out
in Liesching and Others v S:
‘As with section 18(1), section 17(2)(f) prescribes a departure from the ordinary
course of an appeal process. Under section 17, in the ordinary course, the decision of
two or more Judges refusing leave to appeal is final. However, section 17(2)(f) allows
for a litigant to depart from this normal course, in exceptional circumstances only, and
apply to the President for reconsideration of the refusal of leave to appeal.
In Ntlemeza, the requirement of exceptional circumstances is viewed as a “controlling
measure.” In terms of section 17(2)(f), the President has a discretion to deviate from
the normal course of appeal proceedings – such discretion can only be exercised in
exceptional circumstances. The requirement of the existence of exceptional
circumstances before the President can exercise her discretion is a jurisdictional fact
which may operate as a controlling or limiting factor.’ It has long been accepted that
it is ‘undesirable to attempt to lay down any general rule’ in respect of ‘exceptional
circumstances’ and that each case must be considered upon its own facts. In MV Ais
Mamas Seatrans Maritime v Owners, MV Ais Mamas and Another , Thring J
summarised the approach to be followed. He said that ‘ 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
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.’
What constitutes irreparable harm is always dependent upon the factual situation in
which the dispute arises, and upon the legal principles that govern the rights and
obligations of the parties in the context of that dispute. It was accepted in Knoop that:
‘the need to establish exceptional circumstances is likely to be closely linked to the
applicant establishing that they will suffer irreparable harm if the . . . order is not
implemented immediately.’ The same, I daresay, can be said of its counterpart, the
absence of irreparable harm to the respondent. In that sense, the presence or
absence of irreparable harm, as the case may be, can hardly be entirely divorced
from the exceptional circumstances enquiry. It would perhaps be logically incoherent
for a court to conclude, on the one hand, in favour of an applicant that exceptional
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circumstances subsist, but, on the other, against an applicant on either leg of the
irreparable harm enquiry.
The argument, as I have it, is that as the language of s 18(3) is clear – it is for an
applicant, in addition to exceptional circumstances, to prove on a balance of
probabilities that it will suffer irreparable harm and conversely the other party would
not. A court is thus required to undertake what would be in the nature of a tick -box
exercise by enquiring into and satisfying itself as to the first, then the second and
finally the third, in that order. Unless each box is successfully ticked, the applicant
must fail. Here, so the argument proceeds, the high court failed to undertake such an
exercise; had it done so, it could not permissibly have ticked the third box,
consequently, the s 18 application should have failed. Even accepting that the
legislature has employed the words ‘in addition [to exceptional circumstances] proves
on a balance of probabilities’ in s 18(3), it would be passing strange that if an
applicant comes short in respect of either the second or third requirements it would
nonetheless still be able to successfully meet the exceptional circumstances
threshold. The use of the words ‘in addition proves’ in s 18(3) ought not to be
construed as necessarily enjoining a court to undertake a further or additional
enquiry. The overarching enquiry is whether or not exceptional circumstances
subsist. To that end, the presence or absence of irreparable harm, as the case may
be, may well be subsumed under the overarching exceptional circumstances enquiry.
As long as a court is alive to the duty cast upon it by the legislature to enquire into,
and satisfy itself in respect of exceptional circumstances, as also, irreparable harm, it
does not have to do so in a formulaic or hierarchical fashion.
Although it has been postulated that the second and third are distinct and discrete
enquiries, they are perhaps more accurately to be understood as being two sides of
enquiries, they are perhaps more accurately to be understood as being two sides of
the same coin. The same facts and circumstances, which by that stage ought largely
to be either common cause or undisputed, will inform both enquiries. The logical
corollary of an applicant suffering irreparable harm, will invariably – but not always –
be that the other party has not. The enquiry into each can thus hardly be mutually
exclusive, particularly because as far as the third is concerned, unlike the second,
the onus cast upon an applicant would be to prove a negative, in accordance with the
usual civil standard. This suggests that, as with the exceptional circumstances
enquiry, a court considering both the second and third must have regard to all of the
facts and circumstances in any particular case. Insofar as the third goes, although s
18(3) casts the onus (which does not shift) upon an applicant, a respondent may well
attract something in the nature of an evidentiary burden. This would be especially so
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where the facts relevant to the third are peculiarly within the knowledge of the
respondent. In that event, it will perhaps fall to the respondent to raise those facts in
an answering affidavit to the s 18 application, which may invite a response from the
applicant by way of a replying affidavit.
What counsel’s argument boiled down to was that as each of the second and
the third so-called requirements had to be approached as discrete, isolated enquiries,
there was accordingly to be no weighing -up of the irreparable harm of the one as
against the other. In that regard, reliance was placed on Afriforum, which, in turn,
referred with approval to Incubeta Holdings and Another v Ellis and Another , where
Sutherland J is reported to have said:
‘A hierarchy of entitlement has been created . . . Two distinct findings of fact must
now be made, rather than a weighing-up to discern a “preponderance of equities”.’
It is not clear what the learned Judge sought to convey by ‘a hierarchy of entitlement
has been created .’ Counsel experienced some difficulty in trying to explain – or
support – such a characterisation.” (footnotes omitted)
Exceptional Circumstances
[9] The takeaway from the above judgment is that the existence of ‘exceptional
circumstances’ is a necessary prerequisite for the exercise of the court’s discretion
under section 18 of the Act. If the circumstances are not truly exceptional, that is the
end of the matter. It was also held that ‘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.’
[10] The exceptional circumstance s that the applicant relies on is that it has a
secured five-year lease, and that if the suspension is not uplifted it will lose the
tenant because the compliance of the obligations of the contract will not be fulfilled.
tenant because the compliance of the obligations of the contract will not be fulfilled.
[11] It has been factually established that the applicant has a secured five-year
tenant. This is confirmed by the signed agreement of lease between the applicant
and the said tenant. According to that agreement of lease, the tenant is to take
occupation of the property on 1 March 2026. The question is whether a secured five-
year tenant is something out of the ordinary and of unusual nature , something
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uncommon, rare or different, to render it exceptional. I am not persuaded that a
secured five-year tenant can be considered as something that is out of the ordinary
and of unusual nature, something uncommon, rare or different.
[12] The applicant’s argument that further exceptional circumstances are that the
respondent is in unlawful occupatio n of the property because it has been confirmed
in the original order that the lease agreement has been cancelled , and that what is
suspended by the section 18(1) of the Act is only the execution of the eviction order,
has no merit. The eviction order hinges on the cancellation of the agreement of
lease. The court would not have ordered the evi ction without having cancelled the
lease agreement. It cannot at this stage be conclusively said that the respondent is
in unlawful occupation until the appeal has been decided. The effect of section 18(1)
of the Act is that the whole order is suspended.
[13] The applicant’s reliance on SA Retail Properties (Pty) Ltd v Golden Tee
Investments (Pty) Ltd (SA Retail) 2 in support of its argument that the eviction order
only suspends the operation of the original order, is misplaced. The applicant relies
on this judgment on the basis that the two judgment are similar. I do not agree . The
two judgments are clearly distinguishable. In the SA Retail judgment, the findings of
the court were based on the invalidity of the agreement and the mala fides of the
applicant therein, whereas i n the current application the validity of the agreement
and the mala fides of the applicant are not in question.
I have to conclude that the circumstances are not exceptional.
Irreparable Harm
[14] Even if I am wrong in my conclusion that the applicant’s circumstances are
not exceptional , I do not think that the applicant has been able , on a balance of
probabilities, to establish the other two requirements of irreparable harm. In terms of
probabilities, to establish the other two requirements of irreparable harm. In terms of
section 18(3) of the Act, an applicant, in addition to exceptional circumstances, has
to prove on a balance of probabilities that it will suffer irreparable harm and
conversely the other party would not.
2 (Case No: 2025/189819), delivered 17 November 2025.
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[15] The applicant’s supposition is that it will lose the 5-year tenant who is
supposed to take occupation on 1 March 2026 and that it would, obviously, continue
to suffer at the hands of the respondent not paying rental whilst in occupation.
[16] It was argued on behalf of the applicant that the irreparable harm for the
applicant, let alone the monetary amount, is double -sided. This it was argued is so
because on the one hand the applicant continue s to incur loss of rental income
because of the respondent not vacating the premises and being in unlawful
occupation. On the other hand, the applicant stands to lose a secured 5-year lease
that cannot be revived.
[17] However, what tips the scale in favour of the respondent in this regard, is that
in such circumstances, the applicant would have a damages claim against the
respondent. The contention by the applicant that a damages claim against the
respondent may not be realised because of its believe that the respondent has no
means, is meritless.
[18] The court in Dlamini v Ncube and Others 3 held that an amount owing for
rental is not irreparable harm even when there is a very little chance of getting it back
because the person owing is indigent or does not have money. I agree that that
judgment is not on point with the present application because it dealt with spoliation
and residential premises, when the present application is dealing with commercial
property and an agreement of lease. However, the abovementioned principle find
application in the present matter. The applicant has, as such, not proven the
irreparable harm it will suffer.
[19] The applicant has, also, not proven that the respondent will not suffer any
irreparable harm. The applicant alleges in its affidavit that should any harm befall the
respondent it will be addressed in due course. The applicant does foresee the
possibility of the respondent suffering irreparable harm in that is states that if any
3 (01355/2023) [2023] ZAGPJHC 379 (18 April 2023).
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harm is suffered by the respondent, it will be addressed in due course. The Supreme
Court of Appeal in Tyte Security Services4 held that
“Any irreparable harm (or even the potentiality of irreparable harm) to a
respondent, no matter how slight would irredeemably tip the scales against an
applicant. It thus would matter not that the irreparable harm of a respondent
was relatively slight or inconsequential or that it was significantly outweighed
by that of the applicant. The mere fact of irreparable harm in respect of the
respondent, irrespective of its nature or extent, would per force non -suit the
applicant. In other words, unless there was no (as in ‘zero’, in the words of
counsel) irreparable harm to a respondent the s 18 application had to fail.”
[20] On all of the above reasons, the application falls to be dismissed.
Costs
[21] The Respondent seeks costs on attorney and client scale. This is the scale at
which the two parties were litigating. However, the applicant sought punitive costs on
the basis of the terms agreed to by the parties stated in the agreement of lease. The
respondent on the other hand, has to prove abuse of process by the applicant in
order to qualify for a punitive cost order. There is no evidence o f any abuse of
process by the applicant in this matter. The respondent is, thus, not entitled to such
costs. The party and party scale of costs should be awarded on scale B.
Order
[22] The application is dismissed with costs on scale B.
_________________________
E.M KUBUSHI
JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
4 Ibid para 17.
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APPEARANCES:
For the Applicant: Adv F A Darby – (082 782 0634)
Instructed by: Kisch Africa Inc
Tel: 083 327 6490
For the Respondent: Adv Y K Ndziba – (078 862 5650)
Instructed by: Risenga Attorneys ( 065 933 7796)
Date of the hearing: 12 February 2026
Date of judgment: 27 February 2026