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SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in
compliance with the law and SAFLII Policy
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NO: 110842/2023
1. REPORTABLE: NO
2. OF INTEREST TO OTHER JUDGES: NO
3. REVISED: NO
DATE 19 MARCH 2026
SIGNATURE
In the matter between:
E[...] E[...] M[...] Applicant
and
S[...] E[...] M[...] First Respondent
GOVERNMENT EMPLOYEES PENSION FUND Second Respondent
_________________________________________________________________________________________
Delivered: this judgment was prepared and authored by the judge whose name is
reflected and is handed down electronically and by circulation to the parties/their
legal representatives by email and by uploading it to the electronic file of this matter
on Caselines. The date for handing down is deemed to be 19 March 2026.
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JUDGMENT
Introduction
[1] This is an opposed urgent application brought in terms of Rule 6(12) of the
Uniform Rules of Court. The Applicant, in terms of a notice of motion dated 18
February 2026, seeks condonation for non -compliance with the prescribed
forms, service , and time periods provided for in the Uniform Rules and
requests that the matter be heard as one of urgency.
[2] The relief sought by the Applicant includes the following:
(a) Suspension of the execution of the divorce order marked Annexure “L1” in
terms of Rule 45A of the Uniform Rules of Court, pending the determination of
the application for leave to appeal before the Supreme Court of Appeal
against the judgment of the Honourable Justice Moshoana;
(b) An order interdicting the Second Respondent from processing the
Applicant’s pension fund proceeds as directed by the divorce order, pending
the determination of the appeal; and
(c) Costs against the party opposing the application, including the costs of
counsel.
[3] Directions were issued requiring the Respondents to file their notices of
intention to oppose by 19 February 2026 at 16h00 , and their answering
affidavits by 20 February 2026 at 16h00 .On the day of the hearing, counsel
for the First Respondent sought an indulgence from the Court to file opposing
papers out of time. After considering the brief submissions made from the bar,
I directed that the answering affidavit be filed on 25 February 2026 , with the
Applicant to file its replying affidavit on the following day. The matter was
accordingly set down for hearing on 26 February 2026. The First Respondent
complied with these directives and served its answering affidavit electronically
on 25 February 2026, followed by the Applicant’s replying affidavit.
.
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Material Facts
[4] The Applicant and the First Respondent were married in community of
property on 4 April 2004 and resided at the matrimonial home. In September
2007, the First Respondent left the matrimonial home and has not returned.
Since that time, the parties have not lived together as husband and wife.
[5] Two minor children were born of the marriage, namely, on 03 March 1999 and
29 June 2004 . Issues relating to their care and maintenance form part of the
disputes arising from the divorce proceedings.
[6] It is a common cause that the parties are presently divorced pursuant to a
default judgment. The Applicant is challenging the divorce decree and has
instituted proceedings seeking leave to appeal.
[7] The Applicant contends that the enforcement of the divorce order, particularly
in relation to the division of his pension fund benefits, would result in
irreparable harm and undermine his right to pursue an appeal.
[8] The First Respondent disputes that the matter is urgent and contends that the
Applicant has failed to demonstrate any basis for urgency.
Urgency
[9] Rule 6(12) of the Uniform Rules of this court permits a court to dispense with
the ordinary forms and service provided for in the Rules and to hear a matter
as one of urgency where the circumstances justify such intervention.
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[10] An applicant who seeks to invoke this rule must explicitly set out the
circumstances that render the matter urgent and the reasons why the
applicant cannot be afforded substantial redress in due course.
[11] The requirement that urgency be established in the founding affidavit is well
established. It is trite that the court must determine urgency based on the
facts set out in the founding papers, and not on speculation or subsequent
elaboration.
[12] It is well established that the issue of urgency must be determined based on
the facts set out in the founding affidavit . The founding papers must therefore
contain sufficient particularity to justify the departure from the ordinary
procedures of the court.
[13] In the present matter, the explanation for urgency contained in the founding
affidavit is sparse and lacking in particularity . The Applicant advances several
grounds in support of urgency. These include that there is a pending
application before the Supreme Court of Appeal challenging the divorce
order granted by default , and that the Applicant believes he has good
prospects of success.
[14] The Applicant further relies on the fact that, on previous occasions, Baqwa J
and Mazibuko AJ (as she then was) granted interim orders interdicting the
payment of the pension benefits. The Applicant also contends that the Second
Respondent has refused to provide an undertaking that the processing of the
pension benefits will be suspended pending the outcome of the litigation.
[15] It is further contended that enrolling the matter on the ordinary roll would
render the relief sought moot, given the congested nature of the court roll, and
that the Applicant would therefore not obtain substantial redress in due
course.
[16] The First Respondent, however, submits that the Applicant was aware as
early as September 2025 that the First Respondent had resigned from her
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employment and that pension benefits were likely to become payable. This
contention was not satisfactorily addressed in the founding affidavit.
[17] Moreover, the Applicant has failed to adequately explain why the relief sought
could not have been pursued through the ordinary processes available in the
divorce proceedings, including the institution of appropriate interlocutory relief.
[18] Although several points in limine were initially raised by the First Respondent,
these were not pursued at the hearing. The only issue pursued was that
of urgency, and this judgment is therefore confined to that question.
[19] In determining whether a matter qualifies for urgent intervention, the court
must consider whether the Applicant has demonstrated that substantial
redress cannot be obtained in due course and whether the urgency relied
upon is genuine and not self-created.
[20] The founding affidavit must contain sufficient factual detail to justify a
departure from the ordinary rules governing motion proceedings.
[21] In this matter, the explanation for urgency is inadequate. The founding papers
do not provide a coherent chronology of events demonstrating why the
Applicant could not have sought relief in the ordinary course.
[22] The absence of a clear and satisfactory explanation for the alleged urgency
is fatal to the Applicant’s case . Courts have consistently held that where
urgency is not properly established in the founding papers, the matter ought to
be struck from the roll.
[23] In the circumstances, I am not satisfied that the Applicant has made out a
proper case for the matter to be heard as one of urgency.
[24] As a result, the following order is made:
1. The application is struck from the roll for lack of urgency.
2. The Applicant is ordered to pay the costs of the application.
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N NDLOKOVANE AJ
ACTING JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
APPEARANCES
FOR THE APPLICANT: MR. M MARWESHE
FOR THE RESPONDENTS: MS. IM SELANE
HEARD ON: 26 FEBRUARY 2026
DATE OF JUDGMENT: 19 MARCH 2026