SAFLII Note: Certain personal/privat e details of parties or witnesses have been redacted from this
document in compliance with the law and SAFLII Policy
THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE HIGH COURT, CAPE TOWN)
Case no: 2026 -098885
In the matter between:
BEN KATUZEIKO LUTUMBA Applicant
and
MELODY DENISE POYNTON First Respondent
SHERIFF OF THE COURT Second Respondent
FOR CAPE TOWN NORTH
Delivered electronically by email to the parties this 15th day of June 2026
_____________________________________________________
REASONS FOR ORDER
_____________________________________________________
NDITA; J
Introduction
[1] The Applicant brought an urgent application on Sunday , 3 May
2026, seeking relief couched in the following terms:
“1. Dispensing with the applicable forms, service and time periods and
directing that the application be heard as one of urgency a Rule Nisi be issued
calling upon the any Respondent, to show cause on Thursday 4 th June 2026,
(or any other date determined by the Court) why an order should not be made
in the following terms:
1.1 The Respondents are interdicted and restrained from executing a Warrant of
Ejectment for the eviction of the Applicant and his family from 2[...] R[...]
Crescent, Sunningdale, Western Cape, pending filing of an application for
rescission/variation to be filed by the Applicant;
1.2 The Respondents are interdicted and restrained from evicting the Applicant
from the property 2[...] R[...] Crescent, Sunningdale, Western Cape, pending
the Court’s ruling on the rescission/variation application, which shall be filed
by the Applicants no later than 11th May 2026.
1.3 That prayers in 1.2 and 1.3 shall operate as interim interdict with immediate
effect;
1.4 The costs of this application be paid by a Respondent who oppose this
application.”
[2] The matter served before O’Brien AJ, and the relief set out above
was granted.
[3] On 22 May 2026, the matter served before me, and on 25 May
2026, I issued the following order:
“1. This application is struck off the roll due to lack of urgency.
2. The Rule Nisi granted by this court on 4 May 2026 is hereby
discharged,
3. The operation of the eviction order granted by this Court under case
number 2026-011579 on 24 March 2026 is reinstated and declared to be of
full force and effect.”
Factual background
[4] The factual background underpinning the current application is
largely uncontested and may be summarised thus: The First Respondent
and a company known as Global General Trade (Pty) Ltd (“the
Company”) duly represented by the Applicant who is its director
concluded a lease agreement in terms of which the Applicant would
occupy the Respondent’s property situate at 2[...] R[...] Crescent,
Sunningdale, Western Cape (”the premises”) for six months at the rental
amount of R28 000.00 (twenty eight thousand Rand). The lease expired
on 31 May 2025 and subsequently thereto it was agreed that it would
continue on a month-to-month basis on the same terms and conditions.
[5] It is common cause that the Company defaulted on the rental
agreement by 30 November 2025. This culminated an Acknowledgement
of Debt (“AOD”) being signed for the arrear amount of R160 850.00. The
Applicant had bound himself as surety and co-principal debtor.
[6] Pursuant to the AOD, the Company and the Applicant defaulted on
the very first payment which was due on 30 November 2025 in terms of
the AOD . In addition, they failed to pay the current rental amount of
R28 000.00 due on 1 December 2025. As a result of the breaches, the
First Respondent, through her attorneys cancelled the lease agreement
on 9 December 2025 and demanded that the Company and the
Applicant vacate the premises.
[7] Further as a result of the breaches, the First Respondent initially
issued provisional sentence summons in the Cape Town Magistrate’s
Court for the liquidated amount of R160 850.00 base d on the AOD.
Second, the First Respondent also institute d Rental Interdict Summons
in t he same court under case number 2219/2026 for the arrear rental
from November 2025 through April 2026 which totals R171 000.00 plus
damages for holding over until date of vacating as well as interest and
costs on attorney and client scale. The Applicant’s attorney filed a Notice
of Intention to Defend on 30 April 2026. Third, before this court, the First
Respondent filed an application in terms of the Prevention of Illegal
Evictions and Unlawful Occupation of Land Act 19 of 1998 (“the PIE
Act”) for the eviction of the Applicant and all those occupying under him.
This action was based on the notice of termination of the Applicant’s
right to occupy the property after breaching the lease agreement.
[8] It is not in dispute that the application in terms of PIE was served
personally on the Applicant by the Sheriff on 26 January 2026.
Furthermore, the court -sanctioned section 4(2) Notice under PIE , along
with the City of Cape Town’s Personal Circumstances Questionnaire was
served on him by the Sheriff on 28 February 2026. The Sheriff’s return of
service in respect of the Notice in terms of section 4(2) reflects that it
was served on C Lutumba, who is the Applicant’s daughter. The
application served before Saldanha J, on 24 March 2026, and an order
evicting the Company and the Applicant was issued. The Applicant did
not attend the proceedings of 24 March 2026. It was specifically ordered
that they vacate the property by 30 April 2026 and that should they fail to
vacate, the Sheriff or his/her Deputy was authorised and ordered to
effect the eviction after 10:00 am on 4 May 2026.
[9] On Sunday , 3 May 2026, the Applicant brought the urgent
application I have already referred to, in respect of which O’Brien AJ,
issued the Rule Nisi depicted in paragraph 1, of this judgment/
[10] According to the Applicant, after receipt of the eviction court
papers, he had engagements with his landlady , the First Respondent,
who made it clear to him that the main reason f or the court action stems
from the arrear rental. He avers that he understood that if he could settle
the arrears owing, the problem would be solved. Thus, he focused on
securing the funds instead of opposing application, as a result on 13
March 2026, he settled the entire arrears reflected in the judgment debt.
The Applicant states that pursuant to the payment, he and the First
Respondent made an arrangement to the effect that the further
outstanding rental payments would be paid on 13 June 2026. However,
on 15 April 2026, he received an email from the First Respondent’s
attorneys enclosing the eviction order granted by the court on 24 March
2026 within a space of two weeks. This surprised him because he was
under the impression that the matter had been resolved.
[11] In his founding affidavit, justifying the urgency with which the
application had been brought, the Applicant states that he became
aware of the Court Order on 15 April 2026 and although no warrant had
been served on him, he believed that the eviction order would be
implemented on 4 May 2026. He further states that as soon as he
became aware of the order, he took steps to search for alterative
accommodation, In addition, he “requested lawyers to engage with the
first respondent’s attorneys in the matter so that the eviction is not
implemented on 4 May 2026 and hopefully achieve an out of court
settlement.” He further explains that when the First Respondent was not
responsive to these endeavours, he called her directly on Thursday , 30
April 2026. According to the Applicant, the First Respondent indicated to
him that she was waiting for her lawyers to contact her. He states:
“39. When I became aware of the Court Order, immediately took steps
because it was apparent that notwithstanding the arrear amount that settled,
the First Respondent was proceeding with the eviction.
40. I will not be able to obtain adequate redress in the ordinary courts and
by the time the hearing is held in the normal roll, we will have been evicted.
41. I submit that I have made out a case for urgency.”
[12] The First Respondent opposes the application on the basis that it
is not urgent and avers that the Applicant is disingenuous when he
alleges that the eviction order “ took him by surprise’ because her
attorneys (the First Respondent’s attorneys) emailed him a letter on 31
March 2026 advising him that an eviction order had been granted and he
needed to vacate the premises by 30 April 2026, failing which he and
those holding under him would be removed by the Sheriff on 4 May
2026. Furthermore, so further contends the First Respondent, the matter
was correctly set down on an unopposed basis on 24 March 2026
because the Applicant failed to file a Notice to Defend or appear in
person on the day of the hearing.
[13] The First Respondent acknowledges the Applicant’s telephonic call
of 30 April 2026 but denies that any settlement was ever reached with
the Applicant. She admits that she informed the Applicant that she would
await her attorney’s instructions and that should not be construed as an
agreement to suspend a valid and executable order. In the same vein,
the First Respondent flatly denies that her attorneys ever agreed that the
payment of R160 850.00 by the Applicant on 13 March 2026, agreed
that it would “solve the problem” or that the need for the eviction was
obviated. According to her the payment was for the provisions sentence
order for the historical AOD debt and the Applicant paid the amount only
after the Warrant of Execution had been obtained.
The legal principles
[14] Rule 6(12) (a), provides that in bringing an urgent application, an
applicant must set forth explicitly circumstances which it avers render the
matter urgent and the reasons why it claims it could not be afforded
substantial redress at a hearing in due course.
[15] The import of the rule is explained by Notshe AJ, in East Rock
Trading (Pty) Ltd and Another v Eagle Valley Granite (Pty) Ltd and
Others (11/33767) [2011] ZAGPJHC 196 (23 September 2011) thus;
“[5] The issue of whether a matter should be heard as an urgent application
is governed by the provisions of 6(12)(b) of the Uniform Rules. The aforesaid
subrule allows the court or a Judge to dispense with the forms and service
provided for in the rules and dispose of the matter at such time and place in
such manner and in accordance with such procedure as to it seems meet. It
further provides that in the affidavit in support of an application the applicant ‘.
“. . . shall set forth explicitly the circumstances which he avers render the
matter urgent and the reasons why he claims that he could not be afforded
substantial redress at a hearing in due course.
[6] The import thereof is that the procedure set out in rule 6 (12) is not
there for the taking. An applicant has to set forth explicitly the circumstances
which he avers render the matter urgent. More importantly, the Applicant must
state the reasons why he claims that he cannot be afforded substantial
redress at a hearing in due course. The question of whether a matter is
sufficiently urgent to be enrolled and heard as an urgent application is
underpinned by the issue of absence of substantial redress in due course.
The rule allows the court to come to the assistance of a litigant because if the
latter were to wait for the normal course laid down by the rules it will not
obtain substantial redress.”
[16] With regard to self -created urgency, the learned judge found as
follows:
“[8] In my view, the delay in instituting proceedings is not, on its own a
ground for refusing to grant the matter as urgent. The court is obliged to
consider the circumstances of the case and the explanation given. The
important issue is whether, despite the delay, the applicant can or cannot be
afforded substantial redress at the hearing in due course. The delay might be
an indication that the matter is not as urgent as the applicant would want the
court to believe. On the other hand a delay may have been caused by the fact
that the applicant was attempting to settle the matter or collect more facts with
regard thereto. See Nelson Mandela Metropolitan Municipality v
Greyveenouw 2004 (2) SA 81 (SE) at 94 C -D; Stocks v Minister of Housing
2007 (2) SA 9 (C) 12I-13A.
[9] It means that there is some delay in instituting the proceedings an
applicant has to explain the reasons for the delay and why despite the delay,
he claims that he cannot be afforded substantial redress at the hearing in due
course. I must also mention that the fact that the applicant wants to have the
matter resolved urgently does not render the matter urgent. The correct and
the crucial test is whether, if the matter were to follow its normal course as laid
down by the rules, an applicant will be afforded substantial redress. If he
cannot be afforded substantial redress at the hearing in due course, the
matter qualifies to be enrolled and heard as an urgent application. If, however,
despite the anxiety of an applicant he can be afforded substantial redress in
an application in due course the applicant does not qualify to be enrolled and
heard as an urgent application.”
Analysis
[17] I have already indicated that the matter was struck off the roll on
the basis that urgency had not been established . In assessing the facts
concerning the urgency of the matter, it must be stated from the outset
that what is most relevant is when the Applicant obtained knowledge of
he order. In the replying affidavit, the Applicant assails the service of the
Notice in terms of section 4(2) of PIE on the basis that the Sheriff served
the aforesaid Notice on his daughter, who resides in Johannesburg but
was temporarily present at the property. According to the Applicant his
daughter forgot to bring the Notice to his attention and for this reason, he
denies that the urgency was self -created (as alleged by the First
Respondent) as the delay in instituting the proceedings was caused by
the latter’s f ailure to effect proper and lawful service. However, in the
founding affidavit he explains his non -attendance of the proceedings in
the following manner:
“24.1 I noted that the matter was issued by the Registrar on the 15 th April
2026 for a judgment granted on 24 th March 2026. I was not in Court on that
day because I was under the impression that the problem was solved after I
settled the debt.”
The payment of the AOD judgment debt was made on 13 March 2026.
[18] This contradicts his earlier that the reason for his non -attendance
of the proceedings on 24 March 2026 , namely, the defective service of
the section 4(2) Notice on his daughter.
[19] In addition, in paragraph 25 of the Respondent’s answering
affidavit, she emphatically denies that there ever was an agreement his
payment of the amount due in terms of the AOD would solve the
problem. His understanding of the problem goes straight into the heart of
why he relaxed and assumed that all was well until he was faced with an
eviction order two weeks before the Sheriff was authorised to evict him.
His response to the specific averments in the entire paragraph 25
negating the fact that the payment solved everything as well as the
agreement that he could make another payment on 13 June 2026. He
merely reiterates his understanding and does not answer to the
allegations which impact on the reasons why he brought the application
on extremely urgent basis. He states that:
“Ad paragraph 25
24. Insofar as the contents of the allegations are inconsistent with the
contents in this [sic] for my Founding Affidavit, they are denied.
25. I have indicated that it was my understanding that after payment of the
initial amount and a commitment to pay the current arrears, will make my
landlord happy. She had stressed that the arrears were the main reason why
she had instituted eviction proceedings. Furthermore, in our discussion on
13th March 2026, she had not indicated that she was going got [sic] Court on
24th March to seek my eviction.”
[20] It is also telling that the Applicant elected not to respond to the
averments made by the First Respondent in paragraph 7. They read as
follows:
“7. The Applicant further states in his own affidavit that he only became
aware that an Eviction Order was granted on 15 th April 2026. My attorney in
fact sent the Applicant an email letter on 31st March 2026 advising him inter
alia that an Eviction was granted and that he needs to vacate by the 30 th April
2026, failing the Sheriff is authorized to remove him along with those holding
under him by 4th May 2026. See letter emailed to Applicant on 31 March 2026
marked annexure MP”3” attached.
The Applicant failed to take the Court into his confidence by disclosing
whether he received the emailed referred to above. The Applicant’s
allegations of urgency are based on the fact that the knowledge of the
order came to him a mere two weeks before he launched the
application. The undeniable letter of 3 1 March 2026 advising him that he
should vacate by 30 April 2026 contradicts his version.
[21] Likewise, the Applicant’s version in amplification of urgency to the
effect that he thought that his payment of the AOD amount resolved
whatever issues he had with the First Respondent is indicative of
ingenuousness when regard is had to the letter of 30 April 2026. The
relevant part reads as follows:
“At the request of landlord, Melody Poynton, we address this letter to you.
…
As a result we have obtained judgement for the AOD which has now been
paid but rental arrears have again accrued to the amount of R140 000.00 as
of 30 March 2026.
You were served with eviction notices twice by the Sheriff of the High Court
(S4(1) and S4(2) under the PIE ACT) at great expense to our client.
As a result, the High Court granted a final eviction order under the case
number 2026-011579 for you and all those holding under you to vacate the
premises by 30 April 2026, failing, the Sheriff is ordered to remove you from
the property on 4 May 2026.
The Eviction Order we are informed will only be typed by the Registrar in the
next few days which we will email.
As your lease expired on 31 May 2025 it is now strictly at the option of the
landlord to extend your occupation on a month-to month basis.
Ms Poynton advised she will sign an affidavit that you are presently occupying
the premises, but she regrettably will not renew the lease while the arrears
are outstanding AND future rentals are not guaranteed.”
[22] Of note, the impression created by the Applicant is that the
eviction was sprung on him whilst his remaining on the premises was
legitimate and based on the agreement reached by the parties. His
narrative is that his attorneys were trying to engage with First
Respondent’s attorneys. [23] The First Respondent vociferously
denied the existence of an agreement as set out in the summary of the
salient facts. At paragraph 30 of the answering affidavit the First
Respondent states that:
“The Applicant’s narrative of his attorneys’ attempts to engage with my
attorneys is noted. However, no settlement was ever reached. My attorneys
correctly sought my instructions, and I instructed them to proceed with the
eviction as my financial position had become untenable due to the Applicant’s
ongoing failure to pay rental since October 2025.”
[24] The aforegoing analysis amply demonstrates that the version
proffered by the Applicant which purports to justify the extreme urgency
with which this application has been brought is inconsistent and riddled
with avoidance of material issues such that in my view, it is untenable
and untrue and must be rejected. T it is my judgment that the Applicant
failed to give a reasonable explanation for the delay in bringing the
present application.
[25] For all these reasons, I dismissed the application with costs on
the basis that urgency had not been established and discharged the
Rule Nisi.
______________________
NDITA, J
Appearances
For the Applicant: Mr V R Seymour
Lionel Cay Attorneys
Email: vermonseymour@yahoo.com
For the Respondent: Mr M Ahmen
Ahmen & Hamman Attorneys
Email: admin@ahmenlaw.co.za