IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETOR IA
REPORTABLE: ~ / NO ( l)
(2)
(3)
O F INTEREST TO OTHER JUDG ES: ~ /NO
REVISED.
C 28 MAY 2026
SIGNATURE DATE
In the matter between:
JOHANNES TSEKE MPHAHLELE
and
THE SOUTH AFRICAN BOARD FOR SHERIFFS
THE MINISTER OF JUSTICE AND CONSTITUTIONAL
DEVELOPMENT
NAMEDI TSHEPO MPHAHLELE
JUDGMENT
LABUSCHAGNE J
CASE NO: 245823/2025
Applicant
First Respondent
Second Respondent
Third Respondent
Page 2
[1] This is a continuation of litigation between the applicant and the respondents
pertaining to the appointment of the applicant as Sheriff for Pretoria North
East.
[2] Three judgments have been delivered, the orders of which will be referred to
below. The first judgment was delivered on 22 January 2026 .The second
judgment was on 24 February 2026 in an application for leave to appeal the
first judgment. The third judgment was also delivered on 24 February 2026
and related to contempt proceedings. Prayers 1,8 ,9 and 10 in the contempt
proceedings were not related to contempt at all, but to a suspension of a
removal decision. They were postponed sine die.
[3] What currently serves before this court are the postponed prayers referred
to above and enforcement proceedings pertaining to the order in the first
judgment. The further applications are:
3.1 For a suspension of a decision to remove the applicant as Sheriff by
the Minister in a letter dated 20 December 2025 , alternatively 3
February 2026, pending Part B proceedings;
3.2 Implementations proceedings in which the applicant seeks a
declarator that the order granting leave to appeal does not suspend
the interim order in the first judgment. The issue in that regard is
whether the order granted is interim or final in effect.
Page 3
3.3 Alternatively, and in the event of the order being suspended, an
application is brought to implement the first order in terms of section
18(3) of the Superior Courts Act, 10 of 2013.
PREVIOUS ORDERS GIVEN
[4] On 22 January 2025 I gave an order in the urgent court in the following terms:
“2. Pending the finalisation of the relief sought in Part B of the
application, as well as Part B of the application under case number
B6834/2025, the first respondent is ordered to forthwith:
2.1 Issue the applicant with a Fidelity Fund Certificate for Pretoria
North East High and Lower Courts; and
2.2 Remove any reference on the first respondent’s website to the
third respondent as the Sheriff for Pretoria North East High
and Lower Courts.
3. The first respondent is ordered to pay the costs of this application
on Scale C.”
[5] The first respondent brought an application for leave to appeal. From the
application for leave to appeal it appears that a letter of the Minister dated 20
December 2025 removing the applicant as Sheriff for Lephalale on the
grounds of a lack of fitness and propriety had not been disclosed to me. Both
parties were aware of this, but the letter was only written after the applicant
had launched his application for the provision of a Fidelity Fund Certificate.
Page 4
[6] As the letter of the Minister of 20 December 2025 did not serve before me, but
was relevant, and as the Board for Sheriffs will seek to introduce this letter on
appeal, I made an order in the application for leave to appeal on 20 February
2026 granting leave to appeal to the SCA, in the interests of justice and as the
withholding of a relevant document was deemed to be a compelling reason
why the appeal should be heard.The leave to appeal excluded the costs order
granted, which order is the subject of a petition to the SCA.
[7] I made an order granting leave to appeal to the SCA against paragraph [2] of
my order of 22 January 2026, but not paragraph [3]- the costs order.
[8] On 24 February 2026 I delivered a judgment in a contempt application brought
by the applicant against the respondents for failure to issue him a Fidelity Fund
Certificate. By the time the application for contempt was heard, the applicant
had amended the notice of motion to plead the following two prayers as part
of the notice of motion:
“8. Pending the final determination of the relief sought in Part B of this
application as well as Part B of the application under case number
B6834/2025, the second respondent’s purported decision to
remove the applicant as the Sheriff of Pretoria North East and lower
courts is suspended.
9. The first respondent is ordered to forthwith and unconditionally
withdraw annexure JM 41A, JM41B, JM41C, JM41D and JM53 to
the founding affidavit by addressing correspondence in this regard
to the addressees of the said letters and circular.”
Page 5
[9] As the prayers had not been dealt with by the respondents at the time that I
heard the contempt application, I made an order postponing sine die Prayers
1, 8, 9 and 10 (costs) until all papers had been exchanged.
THE SUSPENSION APPLICATION
[10] I have quoted the text of the letter of the Minister dated 20 December 2025
extensively in the contempt judgment that I delivered on 24 February 2026.
As the applicant’s case for suspension also depends on an interpretation of
the letter, I repeat the wording in full in this judgment.
“Dear Mr Mphahlele
Re: Decision on removal of office: Sheriff for Lephalale High and Lower
Courts
I refer to your letter dated 02 December 2025 which serves as a
response to my notice of proposed suspension and/or removal from
office issued on 21 November 2025.
I have noted your explicit statement that ‘it will accordingly not serve any
purpose to make written representations’ regarding your proposed
suspension or removal. I accept this as a formal waiver of your right to
make further representations on this matter. Accordingly, I proceed to
make my final decision based on the facts at my disposal.
Your assertion that you have ‘resigned’ to assume the position of sheriff
for Pretoria North East is founded on the fundamental misconception of
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the legal status of that appointment. The offer of appointment extended
to you on 15 September 2025 was not absolute. It was subject to strict
suspensive conditions which had to be fulfilled before the appointment
could vest. Specifically, the appointment letter stated:
• That you “forthwith relinquish your permanent appointment for
Lephalale HL”; and
• That you “are in compliance for the necessary requirements to be
issued for the Fidelity Fund Certificate (“FFC”).
Our records demonstrate that you failed to fulfil these material
conditions:
• You failed to relinquish for post at Lephalale “forthwith”
(immediately). You said you retained the post for months, only
attempting to tender a conditional resignation on 02 December
2025. This failure is sufficient to render the suspensive condition
unfulfilled.
• You are statutorily disqualified from holding a FFC in terms of
section 33(1)(h) of the Sheriffs Act, 90 of 1986 (“the Act”) due to
your previous criminal conviction. Consequently, you cannot meet
the conditions regarding compliance with FFC requirements.
As these suspensive conditions were not met, the appointment for
Pretoria North East lapsed by operation of law and never came into legal
effect. You do not hold that office, and your attempt to use it as a basis
Page 7
for resignation for Lephalale is legally incompetent. The South African
Board for Sheriffs has formally notified me that your FFC for Lephalale
was cancelled on 24 November 2025.
Furthermore, my office has been provided with evidence that,
notwithstanding the fact that you hold no valid FFC for any jurisdiction,
you have continued to perform the statutory functions of the sheriff. This
includes the organising and advertising of sales in execution. I must
remind you that the performance of such functions without a valid FFC
is a criminal offence under section 30(1)(a) as read with section 60(1)(a)
of the Act. This continued disregard for the law constitutes an
aggravating factor and serves as definitive proof that you are not a fit and
proper person to occupy the office of a sheriff, an office that demands
the highest standard of integrity and legal compliance.
In the circumstances, I am satisfied that grounds exist for your removal.
I hereby remove you from the Office of Sheriff for Lephalale High and
Lower Courts with immediate effect, in terms of section 4(3)(a) of the
Sheriffs Act.
Since you were appointed to the South African Board for Sheriffs in terms
of section 9(2)(a) of the Act (representing the sheriffs’ profession), please
be advised that your removal from the Office of Sheriff be due
immediately cease to hold office as a board member in terms of section
12(1)(d) of the Act.
Page 8
You are directed to surrender all office files, trust account records and
court process to the court manager and the board’s representative
immediately.
Yours sincerely
Ms Mmamoloko Kubayi, MP
Minister of Justice and Constitutional Development
20 December 2025”
[11] The applicant’s contention is that the letter is only directed at removing the
applicant as Sheriff for Lephalale, and not Pretoria North East. The applicant
contends that this letter therefore does not constitute a removal of the
applicant from the Office of Sheriff for Pretoria North East.
[12] Insofar as the position of the applicant as Sheriff for Pretoria North East was
concerned, it is contended by the applicant that the Minister laboured under
an error of law in assuming that that appointment had lapsed due to non -
compliance with a suspensive condition. I already ruled in this regard in the
first judgment, expressing a similar view as far as the Board for Sheriffs is
concerned.
[13] On 03 February 2026 the Minister wrote a further letter, the content of which I
quote in full:
“Dear Mr Mphahlele
Page 9
Re: Status of your appointment and removal from the office of Sheriff
I refer to my letter dated 20 December 2025 and the subsequent
judgment of the Gauteng Division of the High Court delivered on 22
January 2026 (case number 245823/2025). The ongoing exchange of
correspondence between your legal representatives and the So uth
African Board for Sheriffs (“the Board”) was brought to my attention.
I wish to restate and confirm my decision as initially communicated on
20 December 2025. My decision remains unchanged in that your
purported “resignation” dated 02 December 2025 was legally competent
and of no force or effect.
As you failed to fulfil the material suspensive conditions of the Pretoria
North East appointment, specifically the immediate relinquishment of
your Lephalale post and compliance with Fidelity Fund Certificate
(“FFC”) requirements, the appointment for Pretoria North East lapsed by
operation of law.
Consequently, at the time of my decision to remove you, you were the
incumbent Sheriff for Lephalale high and lower courts. Your removal from that office
under section 4(3)(a) of the Sheriff’s Act, 90 of 1986 (“the Act”) was a valid exercise
of statutory power.
It is necessary to address the judgment of 22 December 2026. The
administrative act of your removal from the Office of Sheriff took place on 20 December
2025, or in the month prior to the delivery of judgment. The court was requested to
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regulate the status of an appointment that had already lapsed and an individual that
had already been removed from the profession.
“For the avoidance of any doubt, I hereby confirm that you have been
removed from the Office of Sheriff for all jurisdictions with the Republic
of South Africa.
The Office of Sheriff is one of high trust and integrity. A finding that an
individual is no longer a fit and proper person to hold the office of Sheriff
in one jurisdiction, resulting in formal removal, renders that individual by
fact, ineligible to hold office in any other jurisdiction.
I may further remind you that your removal from the Office of Sheriff
resulted in your immediate and automatic cessation as a member of the
South African Board of Sheriffs in terms of section 12(1)(d) of the Act.
Any continued performance of the statutory functions of the Sheriff, in
any jurisdiction, without a valid appointment and current FFC, constitute
a criminal offence under section 60 of the Act. You are once again
directed to comply with the handover instructions issued on 20
December 2025.
Yours sincerely
Ms Mmamoloko Kubayi, MP
Minister of Justice and Constitutional Development
Page 11
Date: 3 February 2026”
WAS MR MPHAHLELE REMOVED AS SHERIFF FOR PRETORIA NORTH
EAST BY MEANS OF THE LETTER OF 20 DECEMBER 2025?
[14] This letter is to be interpreted by the court in the context in which it was written.
The letter of 03 February 2026 is a clarification of the letter of 20 December
2025.
[15] Considering the letter of 20 December 2025 in isolation, it s text is consistent
with an intention to remove Mr Mphahlele as Sheriff from his appointment in
Lephalale.However,what motivates this removal is the lack of trust which the
Minister expresses in the applicant and the finding that, by virtue of his conduct
he is no longer a fit and proper person to carry the Office of Sheriff. As a further
consequence of the aforesaid, the Minister removed Mr Mphahlele from the
Board for Sheriffs.
[16] As the Minister was under the impression that his appointment to Pretoria
North East had lapsed by operation of law, the letter was aimed at ensuring
that he holds no office as a Sheriff or as a Board Member in terms of the
Sheriffs Act.
[17] The applicant contends that the Minister never had the intention of removing
him from his appointment from Pretoria North East due to the aforesaid error
of law. She assumed that position had lapsed.
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[18] In any interpretation exercise the text is the starting point, and an interpretation
that is not consistent with the resonable meaning of the text will falter (see
Chapman’s Bay Estate Home Owners Association v Lötter ano [2024]
ZASCA 153 at par 28).
[19] However, the text demonstrates:
19.1 A fundamental breakdown in trust by the Minister in the character
qualities of Mr Mphahlele required for being appointed as the Sheriff.
It is the result of that assessment, that he was removed from the Board
of Sheriffs. The basis for this removal is inconsistent with Mr
Mphahlele being a sheriff. The purpose of the letter was clearly to
ensure a clean slate as far as the applicant was concerned to ensure
that he holds no office as Sheriff at all.
19.2 Taking into account the context, the purpose and the text of the letter
(particularly the basis for his removal as Board Member) the effect of
the letter, as a matter of interpretation and by necessary implication,
was to remove Mr Mphahlele as Sheriff for Pretoria North East.
19.3 There is a public interest component to the context of the letter that
cannot be overlooked.The contention of the applicant amounts to him
clinging to a position that is one of high trust in circumstances where
the Minister had lost trust in the applicant.The administration of justice
is fundamentally pillared on the Constitution and public trust. The rule
of law is served when duly appointed sheriffs of high character
execute court orders. Public trust is undermined where a sheriff no
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longer meets the character qualities required of his position, according
to the Minister, but clings to his position. It is for this further reason
that I conclude that the applicant was removed as sheriff in all
jurisdictions by the letter of 20 December 2025.
[20] If I were mistaken in this regard, any doubt was removed by means of the
letter of 03 February 2026 which confirms the breakdown in trust between the
Minister and Mr Mphahlele and the fact that he was not viewed as fit and
proper to hold office as Sheriff anywhere in the country.
[21] My conclusion is therefore that Mr Mphahlele was removed as Sheriff on 20
December 2025. Whether as an act of confirmation,or viewed independently,
the letter of 3 February clarifies and restates his removal from office.
[22] A question may very well be asked how this finding is reconcilable with the
judgment delivered on 22 January 2026.
[23] It needs to be stated categorically that, had the facts of the letter of 20
December 2025 been disclosed to this court, the outcome in the judgment
would have been different.
[24] There are two reasons why this is stated:
24.1 The removal letter would stand as administrative action in terms of the
Oudekraal principle and would be a bar to the relief ordered.
24.2 The Minister’s letter with the finding that Mr Mphahlele lacked
character qualities consistent with the appointment as Sheriff for
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Lephalale, resulting in his removal from the Board, while under the
erroneous assumption that his appointment for Pretoria North East
had lapsed, constitute an attempt to ensure that the applicant is not a
Sheriff at all after 20 December 2025. Viewed in its context, the letter
of 20 December 2025 is a retraction of the appointment of the
applicant as Sheriff in all jurisdictions, including Pretoria North East.
The letter of 3 February 2026 is an overt rejection of Mr Mphahlele as
sheriff in any jurisdict ion.That is what would have undone his
appointment, in terms of his appointment letter of 25 September 2025.
MUST THE REMOVAL OF MR MPHAHLELE BE SUSPENDED PENDING
PART B PROCEEDINGS?
[25] In order to establish a case for the suspension of the removal decision, the
applicant would need to establish the requirements for an interim interdict. In
the context of the interim relief pending a review, he would need to show
strong grounds ofn review that are likely to succeed in Part B (See EFF v
Gordhan 2020 (6) SA 325 (CC) par [42])
[26] I am mindful thereof that the review court would have a power and jurisdiction
to determine this issue on the facts serving before it and that this assessment
would not be binding on the review court.
[27] The basis on which the applicant asserts its prima facie right, i.e. strong
prospects of success in the review, is the following:
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27.1 The letter of 20 December 2025 only effects the removal of Mr
Mphahlele from his appointment to Lephalale.
27.2 The Minister ha d the subjective intention of only removing him from
the position to Lephalale in circumstances where she laboured under
an error of fact and/or law regarding the validity of his appointment to
Pretoria North East. She assumed that it had lapsed. I found that his
appointment required a retraction, with reference to the applicant’s
letter of appointment.
[28] In my judgment of 22 January 2026 I found that the Minister had laboured
under of an error of law in assuming that the appointment to Pretoria North
East had lapsed. As stated, I found that an act of retraction was required, as
these were the conditions under which the applicant had been appointed.
[29] At the time of granting the relief on 22 January 2026:
29.1 It was common cause between the parties, confirmed by counsel for
the Board for Sheriffs, that there had been no act of retraction of the
appointment of the appellant in the position of Pretoria North East.
This was a false position to advance.
29.2 Both parties were aware of the letter of 20 December 2025 but failed
to disclose it.
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[30] If the prospects of success before a review court are assessed, and particular
whether a suspension of the removal decision would be confirmed or not, the
following considerations came into play:
30.1 The letter of 20 December 2025, interpreted as set out above, aims at
ensuring that Mr Mphahlele is not a Sheriff at all in any jurisdiction.
30.2 The finding that he is no longer fit and proper, and falls to be removed
from the Board of Sheriffs, is inconsistent with this continued position
as Sheriff for Pretoria North East.
30.3 The reviewing court would have the benefit of the letter of 03 February
2026, which confirms the aforesaid assessment and is in itself and act
of retraction of the appointment of Mr Mphahlele as Sheriff for Pretoria
North East.
[31] The Board for Sheriffs contend that Mr Mphahlele’s failure to disclose his past
conviction for all the years that he has been a Sheriff, up to 2025, is in itself
an indication that he had been disqualified in terms of section 33 of the Sheriffs
Act all along.
[32] The cumulative effect of these considerations are such that they detract from
the prospects of the applicant succeeding in Part B proceedings.
[33] If I am mistaken in finding that the applicant has not established a prima facie
right in these proceedings, the aforesaid considerations are reasons why a
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court, exercising discretionary relief in Part B proceedings, may decline to
come to the assistance of Mr Mphahlele.
[34] In light of the aforesaid assessment, it is unnecessary to deal with the further
requirements of an interim interdict.
[35] It suffices to state that the application for suspension of the Minister’s decision
to remove Mr Mphahlele (whether that decision is limited to the letter of 20
December 2025 or includes the letter of 03 February 2026), fails and the
removal decision will be left undisturbed pending Part B proceedings.
[36] So too does the remaining relief sought fail , as it hinges on a suspension
being granted.
HAS THE BOARD’S NOTICE OF LEAVE TO APPEAL SUSPEND ED THE
ORDER GRANTED ON 22 JANUARY 2026?
[37] The applicant contends that the order granted is an interlocutory order not
having the effect of a final judgment in the context of section 18(2) of the
Superior Courts Act, 10 of 2013. It is contended that the order was not
suspended by the filing of the application for leave to appeal or the leave
granted.
[38] Section 18(2) reads:
“(2) Subject to subjection (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
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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.”
[39] The applicant contends that the order was not suspended by the filing of a
notice of leave to appeal (sec 18(1) of the Superio r Courts Act, 10 of 2013) .
But if I were to find that it was suspended, it applies for implementation in
terms of section 18(3) of the Act.
[40] The first question to be decided is therefore whether the order granted is an
interlocutory order not having the effect of a final judgment. As the order
granted was pendente lite, it is clearly interlocutory. The issue is whether it is
final in effect.
[41] One of the tests for finality is whether the order granted will be revisi ted in
subsequent proceedings. In this instance the relief sought in Part B seeks a
confirmation of the order granted, ostensibly indicating that it would be
revisited.
[42] In this application this test is useful for determining whether a decision is
interlocutory or not, but not necessarily whether it is final in effect.
[43] In terms of Zweni v Minister of Law and Order 1993 (1) SA 533 (A) at 532 I
to 533 B – the court found that an order is appealable if it has three attributes:
43.1 It must be final in effect and not susceptible of alteration by the court
of first instance;
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43.2 It must be definitive of the rights of the parties; and
43.3 It must have the effect of disposing of at least a substantial portion of
the relief claimed in the main proceedings.
[44] What is to be assessed in the effect of the order and to determine whether
that effect is final. The phrase “final in effect” was considered by the SCA in
Cipla Agrimed (Pty) Ltd v Merck Sharp Dohme Corporation 2018 (6) SA
440 (SCA) at para [47]. The court found that “final in effect” means that an
issue in the suit has been affected by the order such that the issue cannot be
revisited either by the court of first instance of that hearing the action”.
[45] In Metlika Trading Ltd v Commissioner for the South African Revenue
Service 2005 (3) SA 1 (SCA) an interlocutory order had been granted
directing the return of an aircraft to South Africa against the backlog of a tax
dispute in which SARS sought as declarator that the aircraft was owned by
persons against whom income tax assessments ha d been raised. Streicher
JA found that the order was final in effect for the following reasons:
“[22] … Whether or not the aircraft should be returned to South Africa
and whether or not the other orders relating to the aircraft should
be granted is not an issue in the action pending which the
interdict was granted. …
[24] The order that steps be taken to procure the return of the aircraft
to South Africa, as well as the other orders relating to the aircraft,
were intended to have immediate effect, they will not be
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reconsidered at the trial and not be reconsidered on the same
facts by the court a quo. For these reasons they are in effect
final orders. …”
[46] A Fidelity Fund Certificate is valid for one year only. A Sheriff may not perform
the duties of a Sheriff without a valid Fidelity Fund Certificate. The relief
granted excludes the third respondent from performing duties as Sheriff.
[47] In Cronshaw and Another v Fidelity Guards Holdings (Pty) Ltd 1996 (3)
SA 686 (A) a restraint of trade interdict was granted against a security guard
employed by Fidelity Guards who was formerly employed by Coin Security
(subject to a restraint of trade). In that matter the court found that the issues
in the interim interdict were exactly the same issues that were to be decided
in the trail, pending which the interdict had been operative.
[48] The applicant relies on Cronshaw for contending that the order granted is not
final in effect.
[49] In Cronshaw, Schutz JA consider the principle that time run cannot be undone
as an indicator whether an order is final in effect or not. At page 691 he states:
“We were addressed, as have been many courts before, on the prejudice
that is suffered by the subject of an interim interdict, which prejudice is
argued to render the working of such interdict final, in the sense that time
run cannot be recalled, and that the harm done cannot be retrieved. That
such prejudice is often suffered is not in issue. That the harm caused is
retrievable is by no means true in all cases …
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There is a further explanation of a rule that allows such prejudice without
prompt appeal. It is that the prospective harm is one of the factors that
must be judged by the court of first instance in weighing the balance of
convenience … This is a responsible and often difficult balancing,
premised as it is on the distinct possibility that the order be wrongly
granted, because of the incomplete information available to the judge,
and sometimes the haste with which such matters have to be dealt with.
If the grant of an interim interdict were appealable and leave were to be
granted (the test being reasonable prospects of success) the interim
order would be stayed. Such a stay would be destructive of the main
object of an interim interdict – to maintain the status quo pending the final
determination of the main case.
The stay may in turn lead to what is called an application for leave to
execute (to put the order into operation again) where considerations
similar to those already weighed under the balance of convenience
would have to be re-assessed. The court of first instance would then be
required to reach a decision, on imperfect information, a second time, all
with regard to the interim situation. If it be postulated that leave to appeal
can and has been granted, the appeal c ourt would have to reconsider
that situation without being in a position to reach a final decision. From
a practical point of view it seems preferable that the merits of the interdict
be left for final determination at the trial, and that the interim relief, to
which the balance of convenience is relevant, be considered once only.
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The net effect of a contrary rule, allowing an appeal against the grant of
interim orders, could be the undermining of a necessarily imperfect
procedure, which is nonetheless usually best designed to achieve
justice.”
[50] The aforesaid considerations raised by Schutz JA confirm that the suspension
of an interim order which was granted after a due weighing of available
information should not be undone by a pending appeal. It presupposes that
the court weighed the granting of the interdict against the absence of the
interdict and assessed it on the available (if incomplete) facts to obtain an
immediate effect.
[51] In Cipla Agrimed, paragraph [47] the court stated:
“Cipla seized on the phrase ‘final in effect’ in the present matter. It
argued that the patent will have run its course by the time the main action
comes to be considered. This is precisely the argument raised and
rejected in Cronshaw. It boils down to the argument that Cipla is
prejudiced because ‘time run cannot be recalled’. However, it has been
consistently held that ‘final in effect’ means that an issue in the suit has
been affected by the order such that the issue cannot be revisited either
by the court of first instance or that hearing the action. The kind of
prejudice relied on by Cipla was decisively rejected as a basis for
appealability as far back as Globe and Phoenix (Gold Mining Company
Ltd v Rhodesian Corporation Ltd). I kn ow of no case where it has
rendered a matter appealable.”
Page 23
[52] The applicant’s contention is that the question whether the applicant should
be issued with a Fidelity Fund Certificate will form the subject matter of Part B
and will thus “be reconsidered on the same facts” which implies that the order
is not “final in e ffect” and that the operation and execution of the order is
accordingly not suspended pending the Board’s appeal.
[53] This contention looses sight of the fact that the order granted and the
assessment of all the requirements of an interim interdict took place without
the court being apprised of a vital preceding occurrence. The fact that the
Minister had removed the applicant by means of a letter on 20 December 2025
had not been disclosed. The question whether an order is final in effect in
such circumstances is determined by not only the principles in Zweni, Cipla
Agrimed or Cronshaw, but by the interest of justice.
[54] On the interpretation of the aforesaid letter set out supra, the applicant had
been removed as Sheriff for Pretoria North East by necessary implication by
means of the letter of 20 December 2025. Alternatively, it , or the letter of 3
February 2026, constituted a retraction of his appointment in the context of his
letter of appointment of 25 September 2025.
[55] It suffices to state that the issue of the Fidelity Fund Certificate will not be
considered in Part B proceedings on exactly the same facts that served before
this court.
[56] In light of the aforesaid, and in the interests of justice, I conclude that the order
granted is final in effect and that it was suspended by means of the filing of an
application for leave to appeal.
Page 24
MUST THE INTERIM ORDER BE IMPLEMENTED?
[57] The applicant, as an alternative, contends that exceptional circumstances
exist warranting the interim implementation of the order granted on 22 January
2026.
[58] There are three requirements for such an implementation order. The applicant
must establish:
58.1 Exceptional circumstances;
58.2 That the applicant will suffer irreparable harm if the order is not made;
and
58.3 That the party against whom the order is made will not suffer
irreparable harm if the order is made.
[59] These separate requirements are however considered in an integrated
process and not in a compartmentalised fashion (see Tyte Security Services
CC v Western Cape Provincial Government and Others 2024 (6) SA 175
(SCA) at paragraphs [9] to [10]).
[60] The applicant’s prospects of success in the envisaged review should be taken
into account to determine exceptionality and as a factor in exercising the
court’s discretion to enforce the order ( Zero Azania (Pty) Ltd v Caterpillar
Financial Services SA (Pty) Ltd 2024 (2) SA 573 (GJ) at paragraph [41].
Page 25
[61] The applicant’s prospects of success in the pending review against the order
granted will be influenced by the non -disclosure of the letter of 20 December
2025 by both parties and the assurance given to this court at the time of
hearing the application that it was common cause between the parties that
there had b een no retraction of the applicant’s appointment. In these
circumstances I cannot find that there are exceptional circumstances
favouring the interim implementation of the order in terms of section 18(3).
[62] If I am mistaken in this regard, the implications of the implementation of the
interim order would be to freeze out the third respondent for as long as the
part B proceedings take. This effectively means that the entire 202 6 would
have passed by the time a judgment in part B proceedings is obtained . The
issue of mootness would arise in the review in circumstances where the clock
cannot turn back for the third respondent.
[63] The applicant has therefore failed to establish that the third respondent will not
be prejudiced by the interim implementation.
[64] As far as the Board for Sheriffs is concerned, the interim implementation is
sought in the face of a decision by the Minister to remove the applicant as
Sheriff from all jurisdictions, an issue on which I have expressed an opinion
supra. The applicant had been removed by necessary implication by means
of a letter of 20 December 2025. His removal from all jurisdictions was
confirmed in a letter of the Minister of 03 February 2026.
[65] The implementation of the interim order raises legality concerns on the part of
the Board of Sheriffs. These legality concerns relate to the applicant’s fitness
Page 26
and propriety. As far as the Minister is concerned, the interim implementation
will have the effect of a court endorsement of the applicant as Sheriff where
the Minister has lost her trust in the applicant and removed him from office in
all jurisdictions.
[66] In these circumstances the applicant has failed to establish that the
respondents will not be prejudiced by the putting into operation of the order
granted pending an appeal and/or finalisation of Part B.
[67] In the premises the section 18(3) application falls to be dismissed.
CONCLUSION
[68] For the reasons set out supra, I come the following conclusions:
68.1 The Minister removed the applicant as Sheriff for Pretoria North East
on 20 December 2025, as confirmed on 03 February 2026.
68.2 The aforesaid removal decision will not be suspended pending the
finalisation of the review thereof.
68.3 The order granted on 22 January 2026 is an interlocutory order that is
final in effect, which was suspended upon the filing of an application
for leave to appeal.
68.4 The suspended order will not be implemented in terms of section
18(3).
Page 27
[69] In the premises I make the following order:
1. Paragraphs 8, 9 and 1 O of the amended notice of motion in the contempt
proceedings are dismissed.
2. The applicant to pay the costs pertaining to the aforesaid on a party and
party scale, Scale C.
3. The applicant's application in terms of section 18(3) for interim execution
of the order of 22 January 2026 is refused with costs.
4. The applicant to pay the costs of the section 18(3) application on a party
and party scale, Scale C.
LABUSCHAGNE J
JUDGE OF THE HIGH COURT
APPEARANCES:
COUNSEL APPLICANT
INSTRUCTED BY
: ADV SATHEKGE
: GUSTAF DREYER