IN THE HIGH COURT OF SOUTH AFRICA
EASTERN CAPE DIVISION: MAKHANDA
(1) REPORTABLE: YES
(2) OF INTEREST TO OTHER JUDGES:
YES
DATE: 24 MARCH 2026_________
SIGNATURE:__________________
CASE NUMBER: 2026-046762
In the matter between:
EASTERN CAPE QUARRIES (PTY) LTD Applicant
And
EYETHU QUARRY (PTY) LTD Respondent
____________________________________________________________________________________
Summary: Urgent application -Rule 6(12) – Uniform Rules of Court – urgent -
substantial redress - normal motion court explicit reasons. Application dismissed.
______________________________________________________________________
JUDGMENT
______________________________________________________________________
NTLAMA-MAKHANYA AJ
[1] This application was brought on an urgent basis in terms of Rule 6(12) of the
Uniform Rules of Court against the respondent for his failure to comply with
agreed terms of the Memorandum of Agreement (MoA) that was entered on the
2nd of October 2025.
[2] The applicant sought the following orders in terms of the Notice of Motion that the
respondent:
(i) Be ordered to cease mining at the quarry located at Farm
Grobelaarsgrave 2010 and Farm Roydon 209 Komani (‘the
premises’).
(ii) Be ordered to vacate the premise s following the lawful cancellation
of the parties’ agreement.
[3] This application was opposed by the respondent and other than urgency, he
argued that the relief sought was final and amounted to eviction.
[4] This Court will only address the principle of urgency and not go beyond the
scope and merits of the case. This is motivated by the fact that urgency is the
benchmark which would determine the substance of this case. It is essential that
I deal with content of this principle. However, a brief backg round will suffice to
provide an insight into the subject of the dispute.
BACKGROUND
[5] On the 23rd of September 2025, the respondent made an offer to the applicant for
the purchase of a crushing plant and the equipment. On the 2 nd of October 2025,
the offer was accepted and the parties entered a Memorandum of Agreement
(MoA) as a framework that will regulate the contractual relations between them.
The terms of the agreement were that the respondent would pay a deposit of R7
000 000.00 on the 31 st of January 2026 of the agreed contractual amount of R14
000 000.00. Thereafter, the outstanding balance of R 7 000 000. 00 will be paid
in monthly instalments.
[6] The agreement was to be executed in two phases. Firstly, exploration and testing
where the appl icant would apply for the renewal of the mining permit which was
due to expire on the 31st of January 2026 and the respondent would thereafter on
renewal, pay 50% of the agreed purchase price. Secondly, in conclusion of the
first phase, respondent will tak e over the acquisition of the plant. However, the
agreement experienced some challenges even before it could take effect.
Attempts were made to salvor the situation in vain with the consequent result of
the applicant’s cancellation of the agreement and the institution of this
application.
[7] This background provides an insight into the parties’ submissions.
SUBMISSIONS AND ISSUES
[8] The applicant submitted that the respondent committed a material breach of the
agreement by failing/ alternatively refusing to pay the deposit of R7 000 000.00
which renders the application extremely urgent because:
(i) The applicant is not allowed access on site and has no idea
whether preventative maintenance is being done to their plant and
equipment that is worth R14 000 000.00.
(ii) The applicant seeks to protect his commercial interest; and
(iii) The mining permit can be revoked due to respondents’ actions of
mining the site illegally which would lead to the applicant suffering
severe prejudice if the license is revoked.
[9] On the other hand, the respondent submitted that:
(i) The application lacks urgency alternatively constituted self -created
urgency;
(ii) The applicant breached the terms of the agreement by failing to
provide a maintenance plan; and
(iii) The respondent w as not obligated to pay the deposit because its
due diligence process had not been completed because of the
section 54 notice that was issued by the Department under the
Mine and Safety Act.
[10] These submissions raised the following issues that require this Court to
determine whether:
(i) The application is urgent.
(ii) Respondent committed a material breach of the agreement.
(iii) Applicant validly cancelled the agreement: and
(iv) The respondent is unlawfully occupying the property.
[11] The background, submissions and issues are intertwined with each other and set
a pathway to determine the core content of the “ urgency” of this application.
Therefore, I evaluate the extent of the urgency of this application.
ANALYSIS
[12] The foundations of urgency are well -grounded in Rule 6(12). They bestow this
Court with discretionary powers to determine the urgency of the matter as it sees
fit. I am not going to reproduce the principles that had been set forth and
contextualized the application of this Rule. However, it requires the party who
alleges urgency to explicitly state the reasons that constitute it. The Court is not
to imply the reasons as to why the party will not be afforded substantial redress
at the normal motion. The content of this Rule is not a ‘mere rule’ that must be
couched under what the applicant believed was urgent. This Court carries the
sanctity of addressing well -deserved matters and not to be flooded w ith matters
that could not have seen the roll of the urgent court.
[13] In an order that was granted by Laing J dated 27 February 2026, it stated that
this matter was “not sufficiently urgent to be dealt with on a day other than the
normal motion.” Judge Laing went on to state that the “application may be dealt
with in accordance with rule 12(a) of the Joint Rules of Practice of the Eastern
Cape (Joint Rules).: I am in the affirmative with Laing J that this matter was not
ripe to be viewed on an urgent bas is. I find it disturbing that Laing J declared this
matter not urgent on the 27 th of February 2026 and on the 10 th of March 2026
found its way into the urgent roll. The substance of this case relating to facts and
legal questions are of fundamental importa nce in business commercial
transactions that need proper articulation and ventilation of the underlying factors
relating to their merits.
[14] It is my opinion that parties do not have to cloud cases under an urgent roll and
use Rule 6(12) as a weapon to deal with serious prayers that were supposed to
have been properly allocated in a roll that will ensure the substantive
consideration of its merits. In this instance, Matshaya AJ in S v Khomo1 held:
“High courts should not be burdened by unmeritorious ma tters which are not
properly brought before them and [they] should guard against disguised “urgent
[applications]” like this one. Any matter that is … referred to the High Court on
[urgent basis] the [Judge] … would have [to] satisfy himself/herself that i ndeed
the matter is [urgent]. It cannot be correct that whenever a party is aggrieved [will
file his application as urgent …] to the high court willy-nilly.”2
[15] I am persuaded by Matshaya AJ because in this case, the applicant sought
orders against th e respondent to cease the operations at the Farm failing which
he must vacate the site. It is quite disturbing because the site is not a mere site
of economic development of the Province of the Eastern Cape but the country as
well. For the applicant to com e before this Court and prayed for an order to do
what I refer to as “uprooting the respondent” needs to be “frowned upon”. It is
incomprehensible that this application finds its way by urgency. It also appears to
me that the issue in the applicant’s case was not necessarily of urgency, but the
urgent enforcement of the R7 000 000 deposit which is the basis of this
application. His grief about the respondent’s failure to make the payment due,
does not fall within the confines of the principles of urgency.
[16] I find urgency in this matter unjustifiable because it limits the proper articulation
of the underlying factors that could have been properly addressed at the normal
motion proceedings. The filing of this applicant in urgent roll is an abuse of the
Court processes, and it amounts to vexatious litigation. I must express that I am
taking this with great concern that urgency will be clouded under the enforcement
of a contract that will have repercussions for the evolution of the principles of
of a contract that will have repercussions for the evolution of the principles of
motion cour t proceedings. It appears to me that the applicant needs to be
1 S v Khomo 2024 (1) SACR 73.
2 Ibid para 15.
reminded that the main issue in urgent proceedings is the justification of
departure from the normal procedural requirements and not to serve as a basis
to determine factual and complex legal issues.
[17] The applicant believed that the application was urgent in terms of Rule 6(12).
However, he failed to comprehend and proffer reasons why he could not be
afforded substantial redress at the normal course proceedings. The applicant
misconceived the principles of urgency and their location within the context of
normal motion proceedings. The applicant was apprehensive that the
respondent’s failure to pay the deposit or vacate the property, the Minister of the
Department of Minerals and Energy (Dep artment) will revoke the mining license.
This Court is not to assume and determine urgency based on the applicant’s
belief that the Minister may revoke the license if the respondent failed to pay the
deposit. The Minister carries the executive authority of the Republic. He is
required to uphold the rule of law and ensure adherence to the prescripts of the
legal framework that regulate his allocated portfolio. Although the Minister holds
the “purse and the sword” 3 to enforce compliance, such authority could not be
exercised without the due process of law. The process is prescribed in terms of
section 47 of the Mineral and Petroleum Resources Development Act 8 of 2002
(Minerals Act) for a step -by-step process relating to the Minister’s powers to
suspend, cancel rights and or permits. Importantly, the role of the Minister falls
within the broader framework of the rule of law. Nkabinde J in Pheko v Ekurhuleni
Metropolitan Municipality 4 contextualized the rule of law and is of equal
application in this case and its effectiveness on the role of the courts in the
application of the law. The Judge held:
“The rule of law, a foundational value of the Constitution, requires that the dignity
and authority of the courts be upheld. This is crucial, as the capacity of the courts
and authority of the courts be upheld. This is crucial, as the capacity of the courts
to carry out their functions depends upon it. As the Constitution commands,
3 See Kriegler J in S v Mambolo 2001 (5) BCLR 449 (CC), para 16.
4Pheko v Ekurhuleni Metropolitan Municipality [2015] ZACC 10.
orders and decisions issued by a court bind all persons to whom and organs of
state to which they apply, and no person or organ of state may interfere, in any
manner, with the functioning of the courts. It follows from this that disobedience
towards court orders or decisions risks rendering our courts impotent and judicial
authority a mere mockery. The effectiveness of court orders or decisions is
substantially determined by the assurance that they will be enforced.”5
[18] The application of section 47 of the Minerals Act should not be used as a shield
to compromise the rule of law and enf orce matters that are unmerited for
urgency. I am persuaded by the responded that the prayer for his “vacation” of
the site is a final remedy. It constitutes what I would refer to as “getting rid” of the
respondent from the site. It is my opinion that this application clouded primary
issue of enforcing the contractual terms against the respondent under the
principle of urgency.
[19] It bears repetition that I am not satisfied that the applicant met the requirements
of Rule 6(12). It is my further view th at this matter be removed from the urgent
roll and be enrolled in the normal motion court roll where it will be provided with a
substantive opportunity to address the complexity of facts and legal issues that
emanate from it.
[20] In the circumstances of this case, both parties applied for costs on an attorney
and client scale. I must express the discomfort because the costs are not meant
to discourage parties in litigation because of punitive costs. The substance of
litigation is to ensure the resolution of a dispute in impartial and fair processes of
the law without any fear. It substantiates the foundations of constitutional
democracy. I therefore order the costs as they appear below.
[21] In the result, the following order is made:
5 Ibid para 1.
[21.1] This application is dismissed for lack of urgency.
[21.2] The applicant is ordered to pay the costs of this application on
Scale B and costs of one Counsel where so employed.
_________________________________
N NTLAMA-MAKHANYA
ACTING JUDGE OF THE HIGH COURT
MAKHANDA
Delivery: This judgment is issued by the Judges whose name appears herein and is
delivered and submitted to the parties /legal representatives. Its date of delivery is
deemed 24 March 2026.
Date Heard: 12 MARCH 2026
Date Delivered: 24 March 2026
Appearances:
Applicant: Advocate M van der Berg
Cape Town
Instructing Attorneys: SDP Attorneys
Grahamstown
Respondent: Advocate A Mafu
East London
Instructing Attorneys: Bate Chubb & Dickson Inc