IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN
Case No: 2026-047062
In the matter between:
SOLAM MDINGI Applicant
and
THE UNIVERSITY OF THE WESTERN CAPE First Respondent
THE VICE-CHANCELLOR / RECTOR, THE UNIVERSITY
OF THE WESTERN CAPE Second Respondent
SAAJID KOOTBODIEN N.O. Third Respondent
ADRIAAN ENGELBRECHT N.O. Fourth Respondent
ANDREW MANELI N.O. Fifth Respondent
THE DEPUTY VICE-CHANCELLOR / VICE-RECTOR,
THE UNIVERSITY OF THE WESTERN CAPE Sixth Respondent
ROBERT CHARLES VERWANT Seventh Respondent
THE PROCTOR, THE UNIVERSITY OF THE
WESTERN CAPE Eighth Respondent
Reportable / Not reportable
Coram: Anderssen AJ
Heard: 24 March 2026
Delivered: Electronically on 24 March 2026
Summary: Urgent application – previously struck – no new grounds for urgency –
matter struck – directed not to enrol again until future event actually occurs
ORDER
1. The application is struck from the roll.
2. The applicant may not re -enrol this application for hearing until such time
as he has launched an application, if any, for the review and setting aside
of the sentence of expulsion served on the applicant on 2 March 2026
wherein he seeks, inter alia , the s uspension of the operation of the
expulsion sanction.
3. The applicant shall bear the costs of the respondent and scale C shall
apply.
JUDGMENT
Anderssen AJ:
[1] The application for relief in terms of Part A of the notice of motion – for the
staying of the execution and / or operation of the sanction handed down on
13 February 2026 – first served before this court on 10 March 2026. At the
hearing the matter was struck fro m the roll for lack of urgency. In a
supplementary founding affidavit the applicant seeks to explain why the
matter is so urgent that it requires a hearing in fast lane. The matter was
set down for hearing before me on 24 March 2026, once again in fast lan e.
The supplementary affidavit reiterates the steps taken by the applicant
between 13 February and 27 February 2026 when the application was
launched. I agree with Ms Gabriel that the supplementary affidavit does not
raise new matter.
[2] It seems to me th at the applicant has a bigger problem than urgency. The
matter before the court relates to the review application arising from a
disciplinary hearing where the applicant was accused of threatening and
harassing one Nthuthuko Shivuri (“ the Shivuri matter ”). The sanction /
sentence was delivered to him on 13 February 2026 and, in terms thereof,
he is excluded for a period of 6 months from attending any part of the first
respondent’s premises, including a residence unless he has prior
authorisation to access s uch premises. I will hereafter refer to the first
respondent as “UWC”. It is the operation of this sanction that the applicant
seeks to suspend / stay until such time as his review application (Part B of
the notice of motion) has been heard.
[3] There is a second disciplinary hearing that also commenced in 2025. This
arose from charges that the applicant physically assaulted a fellow student
and behaved in a disorderly manner, which forced a primary school to
cease their activities (“ the Jama matter ”). The applicant was found to be
guilty and the sanction, handed down on 2 March 2026, expelled him from
studying at UWC. The applicant was informed of his right to appeal the
decision but was warned that an appeal will not suspend the operation of
the decision. The applicant has not availed himself of the opportunity of
lodging an appeal but I was informed that he is in the process of finalising
a further review application to this Court.
[4] The respondent s, after receiving service of the application in the Shi vuri
matter pointed out to the applicant that the relief sought has been rendered
moot by the sanction imposed in the Jama matter. The applicant does not
accept this and has pressed ahead with the application. During argument
the applicant’s counsel submit ted that I am able to grant an order
suspending the operation of the sanction imposed in the Shivuri matter,
which order can be conditional on this court, at a future date, granting an
order suspending the operation of the sanction in the Jama matter. He
referred me to three cases, which he said supported his argument that this
is permissible, namely:
[4.1] Head of Department: Mpumalanga Department of Education
and Another v Hoërskool Ermelo and Another1 at para [97]
It is clear that section 172(1)(b) confers wide remedial powers on a
competent court adjudicating a constitutional matter. The remedial power
envisaged in section 172(1)(b) is not only available when a court makes
an order of constitutional invalidity of a law or conduct under section
172(1)(a). A just and equit able order may be made even in instances
where the outcome of a constitutional dispute does not hinge on
constitutional invalidity of legislation or conduct. This ample and flexible
remedial jurisdiction in constitutional disputes permits a court to forge an
order that would place substance above mere form by identifying the
actual underlying dispute between the parties and by requiring the
parties to take steps directed at resolving the dispute in a manner
consistent with constitutional requirements. In se veral cases, this Court
has found it fair to fashion orders to facilitate a substantive resolution of
the underlying dispute between the parties. Sometimes orders of this
class have taken the form of structural interdicts or supervisory orders.
This approach is valuable and advances constitutional justice particularly
This approach is valuable and advances constitutional justice particularly
by ensuring that the parties themselves become part of the solution.
[4.2] Central Energy Fund SOC Ltd and Another v Venus Rays
1 (CCT40/09) [2009] ZACC 32; 2010 (2) SA 415 (CC) ; 2010 (3) BCLR 177 (CC) (14 October
2009).
Trade (Pty) Ltd and Others2 at para [37]:
It is settled law that s 172(1)(b) of the Constitution confers on the courts
very wide powers to craft an appropriate or just remedy even in
‘exceptional, complex or apparently irresolubl e situations’. The
Constitutional Court has held that ‘[t]he power to grant a just and
equitable order is so wide and flexible that it allows courts to formulate
an order that does not follow prayers in the notice of motion . . . ’ and
enables them ‘. . . to address the real dispute between the parties’.
[4.3] Electoral Commission v Mhlope and Others3 at para [132]
Section 172(1)(b) clothes our courts with remedial powers so extensi ve
that they ought to be able to craft an appropriate or just remedy even for
exceptional, complex or apparently irresoluble situations. And the
operative words in this section are “an order that is just and equitable”.
This means that whatever considerations of justice and equity point to as
the appropriate solution for a particular problem, may justifiably be used
to remedy that problem. If justice and equity would best be served or
advanced by that remedy, then it ought to prevail as a constitutionally
sanctioned order contemplated in section 172(1)(b). In this case a just
and equitable order is one that would pave the way for the August
elections to be held although ou r voters’ roll is the product of unlawful
conduct. Failure to do so, could indeed lead to constitutional crisis with
far-reaching implications.
[5] Mr Moela has argued that considerations of justice and equity demand
that, as the applicant is entitled to an order on the merits, such an order
should be granted and that the order should be crafted that would place
substance above mere form by identifying the actual underlying dispute
between the parties and by requiring the parties to take steps directed at
resolving the dispute in a manner consistent with constitutional
requirements. In this instance the constitutional right that must be
requirements. In this instance the constitutional right that must be
protected is the applicant’s right to basic education and the applicant will
not be afforded substantial redress unless this order is granted.
[6] This argument loses sight thereof that, firstly, the applicant’ s right to basic
2 (119/2021) [2022] ZASCA 54; 2022 (5) SA 56 (SCA); [2022] HIPR 191 (SCA) (13 April 2022).
3 (CCT55/16) [2016] ZACC 15; 2016 (8) BCLR 987 (CC); 2016 (5) SA 1 (CC) (14 June 2016) .
education does not entitle him to attendance at a specific university – his
right is generalised and he has not set forth any facts from which it can be
determined that he is not able to attend a different university in South
Africa. Secondly, rule 6(12) compels an applicant seeking urgent relief to
set forth explicitly the reasons why the applicant claims that they could not
be afforded substantial redress at a hearing in due course. Once again the
applicant, who has deposed to a supplemen tary founding affidavit after he
became aware of the 2 March 2026 sanction, did not set out the reasons
why he cannot be afforded redress in due course. The belated argument,
made out in a replying affidavit, that the 2 March 2026 -sanction is not yet
in effect as it was not confirmed, cannot be accepted. It is not permissible
to make out a case in reply. Furthermore, it seems that it is not the proctor
personally who must confirm, but the office of the proctor.
[7] The further problem is the practical impl ementation of the order sought by
the applicant in the Part -A-prayers. As long as the expulsion sanction
stands, the order sought will have no practical effect. The Constitutional
Court in Eke v Parsons 4 affirmed the essential characteristics of a Court
Order and accepted that a Court Order must be enforceable and
immediately capable of execution. The rule of law requires not only that a
court order be couched in clear terms but also that its pur pose be readily
ascertainable from the language of the order. The order that the applicant
wishes me to make will not be capable of immediate execution. I am
therefore unable to grant the order even in the amended terms sought by
the applicant.
4 2016 (3) SA 37 (CC) (2015 (11) BCLR 1319; [2015] ZACC 30).
[8] I am not refusing the application. I am affording the applicant an
opportunity of renewing the application in due course once he has
instituted the review application in the Jama matter. This is an indulgence
as the applicant comes before court for a second time in the fast lane
whilst being well aware of the defence of mootness raised by UWC and the
other respondents. Therefore the applicant should be mulcted in the costs
of this application.
[9] The order is recorded above.
__________________________
ANDERSSEN J S
Acting Judge of the High Court
Appearances:
For the applicant: Adv L Moela
Instructed by: L J Nemugumoni Inc
For the respondent: Adv P Gabriel
Instructed by: Hayes Inc