IN THE HIGH COURT OF SOUTH AFRICA
NORTH WEST DIVISION, MAHIKENG
In the matter between:
CASE NO: 3195/2025
Reportable
THE INSTITUTE OF MARKET AGENCIES
OF SOUTH AFRICA (IMASA) APPLICANT / FIRST RESPONDENT
and
THE CITY OF MATLOSANA LOCAL
MUNICIPALITY FIRST RESPONDENT/ APPLICANT
THE EXECUTIVE MAYOR OF THE
CITY OF MATLOSANA SECOND RESPONDENT I APPLICANT
THE MINISTER OF PUBLIC WORKS
AND INFRASTRUCTURE
THE MINISTER OF COOPERATIVE
GOVERNANCE AND TRADITIONAL
AFFAIRS
THE MINISTER OF TRADE,
INDUSTRY & COMPETITION
THIRD RESPONDENT
FOURTH RESPONDENT
FIFTH RESPONDENT
2
THE MINISTER OF AGRICULTURE
THE MEC FOR THE NORTH WEST
DEPARTMENT OF ECONOMIC
DEVELOPMENT ,ENVIRONMENT,
CONSERVATION & TOURISM
AGRICULTURAL PRODUCE AGENTS'
COUNCIL (AP AC)
ABSA BANK LIMITED (KERK ST
KLERKSDORP BRANCH)
FRESHLINQ (PTY) LTD
Coram: Reddy J
Heard: 12 June 2026
SIXTH RESPONDENT
SEVENTH RESPONDENT
EIGHTH RESPONDENT
NINTH RESPONDENT
TENTH RESPONDENT
Delivered: This judgment was electronically circulated to the parties' legal
representatives by e-mail and released on SAFLII and uploaded to Caselines. The
date and time of hand down are deemed to be 10h00 on 22 June 2026.
Summary: Leave to appeal - Section l 7(l)(a) of the Superior Courts Act -
Interim order not final in effect - Interim interdict does not impinge on
municipal constitutional powers where funds are trust monies - Section 139 of
the Constitution has no application to judicial enforcement of a court order -
Requirements for interim interdict met - MFMA does not govern third-party
trust funds - No reasonable prospects of success on any ground - No
compelling reasons - Leave to appeal dismissed . Section 18(3) of the Superior
Courts Act - Exceptional circumstances - Organ of state in persistent non
compliance with court order for more than four years - Trust monies unlawfully
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retained - Ongoing irreparable harm to innocent third parties - No adequate
alternative remedy - Section 139(5) financial recovery plan not an exceptional
circumstance where it has no bearing on third-party trust funds - Section 18(3)
application succeeds - Counter-application dismissed.
JUDGMENT
REDDY J
Introduction
[ 1] The first and second respondents, the City of Matlosana Local
Municipality (the Municipality) and its Executive Mayor, apply for leave to
appeal the interim order granted by this Court on 12 May 2026 ( the interim
order).The applicant, the Institute of Market Agencies of South Africa (IMASA),
applies in terms of s 18(3) of the Superior Courts Act 10 of2013 (the Act) for an
order that the interim order shall not be suspended and shall be implemented
immediately. The Municipality brings a counter-application for its formal
suspension. Given their interconnected nature by directive of this Court all three
applications were enrolled for hearing together on 12 June 2026.
Background
[2] The first respondent is the City of Matlosana Local Municipality (the
Municipality) , a local municipality established in terms of the Local Government:
Municipal Structures Act 11 7 of 1998, which operates the Matlosana Fresh
Produce Market at Klerksdorp . The second respondent is the Executive Mayor of
the Municipality (mayor), cited in his official capacity as the political head of the
4
Municipality responsible for its executive functions. The facts are set out fully in
my judgment of 12 May 2026 including a full description of all the parties. That
being so, no useful purpose is served by reidentifying the parties. I propose to
follow the nomenclature used there throughout, the Matlosana Fresh Produce
Market at Klerksdorp (the MFPM); the Agricultural Produce Agents Act 12 of
1992 (the APA Act); the MFPM's closed trust account held at ABSA Bank
Limited (the Bank Account); and the Freshmark payment and accounting system
administered by FreshLinq (Pty) Ltd (the Freshmark system). I propose to
summarise what is material to the present applications.
The way the Market system operates as previously found
[3] In the main judgment I concluded that market agents are appointed by
farmers and producers to sell fresh produce on commission, and that payment by
buyers is made into the Bank Account at ABSA. I held that, in law, this is a closed
trust account, and that the proceeds do not belong to the Municipality but are held
in trust for market agents and, ultimately, producers. I reasoned that the
Municipality retains a commission of five percent, and that the remaining ninety
five percent must be transferred to the trust account of the relevant market agent,
who in tum accounts to the producer within five business days of the sale. I held
that this obligation arises from both the contractual arrangements and Rule 32 of
the rules made under the AP A Act, and that immediate disbursement is not merely
a commercial obligation but a legal imperative.
[4] I further concluded that the Freshmark system was designed to record daily
transactions and to facilitate immediate disbursement upon conclusion of each
sale, and that delayed payment cascades through the chain. Market agents, starved
of the funds they are owed, cannot pay producers, and producers in turn cannot
fund the next production cycle. I reasoned that the knock-on effect on the
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agricultural sector that relies on the MFPM was, on the evidence before me at
that stage, severe and ongoing.
The court order of 4 March 2021 and the non-compliance thereof
[5] I held in the main judgment that the Municipality has been in contravention
of its payment obligations since at least 2018. On 4 March 2021 this Court granted
an order, unchallenged and still extant, directing inter alia that the Municipality
disburse ninety-five percent of sale proceeds within forty-eight hours. The 2021
proceedings also yielded a money judgment in favour of IMASA's members for
arrear amounts totalling Rl 166 786.00, and a costs order on the attomey-and
client scale. I concluded that, notwithstanding those orders, the Municipality
continued to treat its obligations with indifference.
[6] The founding affidavit, deposed to on 21 August 2025, shows that market
agents had not been paid for produce sold on 15, 16, 18 and 19 August 2025,
already more than five days overdue. The reconciliation for Subtropico Market
Agents (Pty) Ltd showed amounts escalating daily; WL Ochse & Kie
(Klerksdorp) (Pty) Ltd was in an even worse position with outstanding amounts
going back considerably further. These are not isolated incidents; they are
symptomatic of a systemic and persistent failure.
[7] IMASA's averment that the Municipality has been wholly oblivious to its
obligations and has, notwithstanding years of correspondence and meetings,
simply disregarded them, stood unrebutted, which was accepted.
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[8] The application was initially enrolled on the urgent roll on 22 August 2025
but was struck from that roll for lack of urgency. It thereafter proceeded on the
opposed motion roll and was argued before me on 12 February 2026. The main
judgment was delivered on 12 May 2026 granting the interim order under Part A.
Part B was postponed sine die. On 20 May 2026 the Municipality filed its notice
of application for leave to appeal. ABSA thereupon refused to implement the
mandate change directed in the interim order, citing s 18 of the Act. Producers
and market agents have accordingly remained unpaid since the date of the main
judgment.
The application for leave to appeal
Submissions
Advocate Chwaro for the first and second respondents (applicants in the leave to
appeal)
[9] On the leave to appeal, Advocate Chwaro advanced the following grounds:
( 1) the interim order unjustifiably inhibits the Municipality's original
constitutional powers by vesting operational control of a municipal bank account
in a private party and is artificial in benefiting only IMASA members;
(2) the order displaces duly appointed officials without the jurisdictional
prerequisites prescribed by s 139 of the Constitution of the Republic of South
Africa, ( the Constitution)
(3) the Court in granting Part A relief determined Part B questions on non
compliance with the 2021 Order and the authorisation of FreshLinq rendering the
order final in effect;
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( 4) the requirements for an interim interdict were not met, the complaint
concerned four past days of non-payment and an adequate alternative remedy
existed;
(5) Section 10 of the Municipal Finance Act 56 of 2003 (MFMA) vests sole
control of all municipal bank accounts in the Accounting Officer without
distinction between trust and non-trust monies; and
(6) the punitive costs order was granted on the basis of non-compliance findings
reserved for Part B, without affording the Municipality a full opportunity to place
its compliance record before this Court.
Advocate de Beer SC for the applicant (respondent in the leave to appeal)
[10] In opposition to the leave to appeal, Advocate de Beer SC submitted that
none of the six grounds advanced by Advocate Chwaro establishes a reasonable
prospect of success or any compelling reason why leave should be granted.
[ 11] On ground 1, Advocate de Beer SC argued that the Bank Account holds
third-party trust monies to which (MFMA) has no application, and that the order
neither transfers ownership of the MFPM nor displaces any legitimate municipal
function. Advocate de Beer SC claimed that the so-called artificial sub-ground is
answered bys 38 of the Constitution.
[12] On ground 2, Advocate de Beer SC maintained that s 139 of the
Constitution addresses executive intervention between spheres of government
and has no application to judicial enforcement of a court order. This Court
exercises its authority under sections 165 and 1 72 of the Constitution, which is
not subject to the jurisdictional preconditions of sl 39.
8
[13] On ground 3, Advocate de Beer SC contended that the Part A findings were
made for the limited purpose of the interdict enquiry and do not constitute a final
adjudication of Part B issues. The order is expressly interim and not final in effect.
[14] On ground 4, Advocate de Beer SC asse1ted that a further money judgment
against a municipality that has treated such judgments with equanimity for four
years is not a satisfactory alternative remedy, and that the interdict is directed at
future conduct rather than past events.
[15] On ground 5, Advocate de Beer SC posited that the MFMA governs
municipal money and that the ninety-five percent of market proceeds is not
municipal money; to accept Advocate Chwaro 's argument would transform the
Municipality from conduit into beneficial owner of funds belonging to others.
[16] On ground 6, Advocate de Beer SC accentuated that no exceptional
circumstances warranting leave to appeal on costs alone have been demonstrated ,
and that the costs award rested on three independent bases each sufficient to
justify it. He proposed that the application for leave to appeal should be refused
in its entirety.
The law
[17] Section 17(1)(a) of the Act provides that leave to appeal may only be given
where the court is of the opinion that the appeal would have a reasonable
prospect of success, or that there is some other compelling reason why the
appeal should be heard, including conflicting judgments on the matter under
consideration. 1 The word "would" imports a measure of certainty that another
1Section 17(/) (a) {i) and (ii)) of the Superior Courts Act JO o/20 13 (" the Act ').
9
court will differ from the court a quo; a mere possibility of success 1s
insufficient. 2
[18] In Ramakatsa v African National Congress, the Supreme Court of Appeal
confirmed that leave to appeal may only be granted where the judges are of the
opinion that the appeal would have a reasonable prospect of success or there are
compelling reasons why the appeal should be heard. 3
[ 19] It is well established that the prospects of success on appeal, while not
conclusive, are a relevant consideration in evaluating whether leave to appeal
should be granted. A court asked to grant leave must be satisfied that the proposed
appeal has sufficient merit to warrant the suspension of the order under challenge.
Analysis
[20] I turn to address each of the grounds of the appeal.
The first ground: Municipal autonomy and constitutional powers
[21] The contentions Advocate Chwaro advances within this ground were fully
addressed in the main judgment and are further answered by s 21 of the Act,
which confers inherent power on this Court to regulate its own process and to
develop the common law, having regard to the interests of justice . More
pertinently, the interim order is grounded in s 165 and 1 72 of the Constitution.
Section 165(1) vests judicial authority in the courts. Section 165(2) provides that
the courts are independent and subject only to the Constitution and the law, which
they must apply impartially and without fear, favour or prejudice.
2 The Mont Chevau:x Trust (JT20 12/2008) v Tina Goosen & /8 Others 201 4 JDR 2325 (LCC) para 6; Notshokovu v S [2016]
ZASCA 11 2; para2 ; S vSmith 20 12 ( I) SACR 567 (SCA) para 7.
3 Ramakatsa v Afric an National Congress [2021] ZASCA 3 1; [2021] 3 All SA 136 (SCA) para 10.
10
[22] Section 172(1)(a) provides that a court must declare any law or conduct
inconsistent with the Constitution invalid. Section 172( 1 )(b) provides that a court
may make any order that is just and equitable. It is this constitutional authority
nots 139 that grounds the interim order. The Municipality's argument conflates
two entirely separate constitutional regimes; executive oversight under Chapter 7
and judicial authority under Chapter 8.
[23] The Bank Account holds third-party trust monies to which the MFMA has
no application; s 10 of the MFMA, read with ss 11 and 12 of that Act (considered
more fully under the fifth ground below), does not authorise the Accounting
Officer to retain trust funds beyond the APA Act's prescribed period; the order is
fully reversible and transfers neither ownership nor management of the MFPM.
The sub-ground advanced by Advocate Chwaro is answered by s 38 of the
Constitution , which confers standing on associations to litigate on behalf of their
members. No other court would reasonably differ from these findings. It follows
that this ground falls to be dismissed.
The second ground: Section 139 of the Constitution
[24] Advocate Chwaro's conflation of judicial enforcement with executive
intervention under s 139 was addressed and rejected in the main judgment.
Section 139 addresses executive intervention between spheres of government
and has no application to the enforcement by a court of a prior court order or to
the protection of third-party trust funds. This Court's jurisdiction under s 21 of
the Act and sections 165 and 172 of the Constitution is not subject to the
jurisdictional preconditions of s 139. Similarly, this ground suffers the same fate
as the first ground. Accordingly, it falls to be dismissed.
11
The third ground : The interim order is final in its effect
[25] Advocate Chwaro's submission under this ground is disposed of in the s
18(3) of the Act analysis below. The Part A findings were made for purposes of
the interdict enquiry only and do not constitute a final adjudication of Part B
issues. The order is interim, susceptible to alteration, and not final in effect. This
ground is meritless and falls to be dismissed.
The fourth ground : The requirements for an interim interdict were not met
[26] Advocate Chwaro's submission that IMASA had an adequate alternative
remedy in further legal proceedings cannot be accepted. To my mind, a further
money judgment against a recalcitrant municipality that has ignored a judgment
for four years is not a satisfactory remedy. Advocate Chwaro' s characterisation
of the complaint as concerning four discrete past days in August 2025 ignores the
systemic and ongoing pattern of non-compliance accepted on unrebutted
evidence in the main judgment. In plain terms an interdict is directed at future
conduct, not past events. Each of the four interdict requirements was met for the
reasons stated in the main judgment. It follows that this ground falls to be
dismissed.
The fifth ground: Section 10 of the MFMA and the Accounting Officer
[27] Advocate Chwaro's argument, if accepted, would transform the
Municipality from conduit which is what it is in law into beneficial owner of
funds belonging to market agents and producers. Section 10 of the MFMA cannot
be read in isolation from ss 11 and 12 of that Act, which form part of the same
12
statutory scheme governing municipal bank accounts.4 Section 1 l(l )(e) MFMA
expressly contemplates withdrawal from a municipal bank account to pay over to
a person money received by the municipality on behalf of that person, which is
precisely the mechanism by which the ninety-five percent of market proceeds
passes through the Bank Account. Section 12 of the MFMA confirms that a trust
fund administered through a municipal bank account does not thereby become
the property of the Municipality. The MFMA governs municipal money; the
ninety-five percent of market proceeds is not municipal money. It axiomatically
follows that s 10 of the MFMA does not displace the AP A Act obligations or the
2021 Order. No court would accept that result. Resultantly this ground equally
falls to be dismissed.
The sixth ground: The costs award
[28] Advocate Chwaro's sixth ground requires exceptional circumstances to be
established, since it is directed at costs alone.5 None has been demonstrated. In
any event, the costs award in the main judgment rested on three independent
bases, any one of which suffices. First, the Municipality's opposition rested on
inadmissible hearsay objectively contradicted by comparative evidence. Second,
it had disregarded the 202 1 Order for more than four years, directly necessitating
this application. Third, the litigation required two counsel in a complex multi-
4Sections I 0, 11 and 12 of the Munici pal Finance Management Act 56 of 2003 ("the MFMA ") provide: " I 0. Contro l of
municipal bank accounts (I) The accounting officer of a municip ality (a) must administer all the municipality 's bank
accounts, including a bank account referred to in section 12 or 48(2)(d); (b) is accountable to the municipal council for the
municipality's bank accounts; and (c) must enforce compliance with sections 7, 8 and 11 . (2) The accounting officer may
delegate the duti es referred to in subsection ( I )(c) to the municipality 's chief financial officer only . 11. Withdrawals from
municipal bank accounts (1) Only the accounting officer or the chief financial officer of a municipality, or any other
senior financi al official of the municipality acting on the written authority of the accounting officer , may withdraw money or
authorise the withdrawal of money from any of the municipality 's bank accounts, and may do so only ... (e) to pay over to a
person or organ of state money received by the municipality on behalf of that person or organ of state ... 12. Relief,
charit able, trust or other funds (1) No politi cal structure or office-bearer of a muni cipality may set up a relief , charitable,
trust or other fund of whatever description except in the name of the municipality. Only the municipal manager may be the
accounting officer or any such fund. (2) A municipality may in terms of section 7 open a separate bank account in the name
of the municipalit y for the purpose of a relief, charitable, trust or other fund."
5Section 16(2)(a)(ii) of the Superior Courts Act JO o/2013.
13
respondent matter. The threshold for appellate interference with a costs discretion
is nowhere near met.6 This ground falls to be dismissed.
No compelling reasons
[29] None of the grounds advanced by Advocate Chwaro raises a novel or
unsettled question of law of general importance, and no conflict between
judgments of different courts has been identified. There are no reasonable
prospects of success on any of the grounds considered above and no compelling
reason why the appeal should be heard, both legs of the enquiry under s 17 (1) (a)
of the Act fail. The application for leave to appeal is dismissed.
The section 18(3) application and the counter-application
Submissions
Advocate Chwaro for the first and second respondents
[30] Advocate Chwaro contested each ground and advanced a counter-ground.
Advocate Chwaro submitted that the North West provincial executive council has
intervened under s 139(5)(a) and (c) of the Constitution and placed the
Municipality under a mandatory financial recovery plan. Advocate Chwaro
maintained that this intervention standing alone constitutes an exceptional
circumstance and implementation of the interim order would obstruct the
recovery plan, interfere with the provincial representative's authority, and cause
the Municipality and the province irreparable harm.
[31] Advocate Chwaro relied on the constitutionally protected autonomy of
local government. He contended that payment delays to market agents are not
6 Van Zyl v Steyn (83856/15) (2022] ZAGPPHC 302 (3 May 2022) paras 17- 19.6
14
extraordinary, that only two market agents were identified on the founding
papers, and that numerous remedies remain available.
Advocate de Beer SC for the applicant
[32] Advocate de Beer SC contended that exceptional circumstances are
established by five cumulative grounds. First, the Municipality's flagrant four
year non-compliance with the 2021 Order strikes at the rule of law and is, by its
nature, out of the ordinary for an organ of state. Second, the continued suspension
causes ongoing, irreversible daily harm to market agents facing deregistration by
APAC or and to producers unable to fund production cycles. Third, the Bank
Account holds trust monies that never belonged to the Municipality, making each
day of suspension another day of unlawful retention. To this end, Advocate de
Beer SC argued that no adequate alternative remedy exists, as a further money
judgment against an organ of state that has treated the 2021 judgment with
equanimity for four years would be futile. Fourth, the leave to appeal application
is primarily dilatory, designed to extend the period of unlawful retention rather
than to advance a genuine legal controversy.
[33] Fifth on the harm requirements, Advocate de Beer SC asserted that market
agents face deregistration that no damages award can undo, while the
Municipality suffers no harm from implementation since its five percent
commission is entirely unaffected. Insofar as costs are concerned, Advocate de
Beer SC sought a punitive costs order in respect of all three applications.
The law
[34] Section 18 of the Act provides the legislative framework. It reads:
" 18. Suspension of decision pending appeal
15
(1) Subject to subsections (2) and (3), and unless the court under exceptional
circumstances orders otherwise, the operation of a decision which is the subject
of an application for leave to appeal or of an appeal, is suspended pending the
decision of the application or appeal.
(2) Subject to subsection (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 judgment, which is the subject
of an application for leave to appeal or appeal, is not suspended pending the
decision of the application or appeal.
(3) A court may only order otherwise as contemplated in subsection (1) or (2),
if the party who applied to the court to order otherwise, in addition proves on a
balance of probabilities that he or she will suffer irreparable harm if the court
does not so order and that the other party will not suffer irreparable harm if the
court so orders.
(4)(a) If a court orders otherwise , as contemplated in subsection (1)
(i) the court must immediately record its reasons for doing so;
(ii) the aggrieved party has an automatic right of appeal to the next highest court;
(iii) the court hearing such an appeal must deal with it as a matter of extreme
urgency; and
(iv) such order will be automatica lly suspended, pending the outcome of such
appeal.
(b) 'Next highest court', for purposes of paragraph (a)(ii), means-
(i) a full court of that Division, if the appeal is against a decision of a single
judge of the Division; or
(ii) the Supreme Court of Appeal, if the appeal is against a decision of two
judges or the full court of the Division.
[35] Advocate Chwaro argued, in support of ground 3 of the leave to
appeal and the counter-application, that the interim order is final in its
effect and falls within s 18(1) of the Act. Advocate Chwaro ' s contention is
that in determining Part A this Court made findings on the Municipality's
16
non-compliance with the 2021 Order and on the authorisation ofFreshLinq
that are properly issues for Part B. This, Advocate Chwaro claims,
effectively disposed of a substantial portion of the Part B relief.
[36] What needs to be underscored is that the findings in the main judgment
were made for the limited purpose of assessing the prima facie right and the
balance of convenience in the interdict enquiry. In my view, they do not constitute
a final adjudication of the contempt and compliance questions that will fall for
determination within the perimeters of Part B, where the Municipality will have
a full and fair opportunity to place its case.
[3 7] It is my considered view that the order is expressly interim, susceptible to
alteration by this Court, and not final in its effect. It falls within the purview of s
18(2) of the Act. For the reason that ABSA has treated the order as suspended
regardless, and because all three applications seeks 18(3) relief, the tripartite test
under that subsection governs. Undoubtedly that enquiry is holistic. It stands to
reason that the three requirements must be evaluated together in light of the
overall circumstances of the particular case.
Analysis
[38] Section 18(3) imposes a specific and sequential onus. The applicant must,
in addition to establishing exceptional circumstances, prove on a balance of
probabilities two things simultaneously . First, that it will suffer irreparable harm
if the court does not order otherwise; and second, that the other party will not
suffer irreparable harm if the court does so order. The word "in addition" in s
18(3) is significant. It makes plain that the onus on irreparable harm is cumulative
upon, and not a substitute for, the threshold requirement of exceptional
circumstances. Both must be satisfied. The onus rests throughout on the party
17
seeking the departure from the default position. In the present case, that party is
IMA SA in respect of the s 18(3) application, and the Municipality in respect of
the counter-application . I address each in tum .
Exceptional circumstanc es
[39] A proper evaluation regarding exceptional circumstances requires an
assessment of the grounds advanced by Advocate de Beer SC. It is to this that I
now tum .
[40] The most compelling ground is the Municipality 's prolonged and
contumacious non-compliance with the 2021 Order. That order imposed a clear,
calculable obligation, the disbursement of ninety-five percent of sale proceeds
within forty-eight hours of each sale. The Municipality neither appealed it, nor
sought its variation, nor complied with it for more than four years. Advocate
Chwaro offered no satisfactory answer to this ground.
[ 41] Organs of state bear a heightened constitutional responsibility towards the
courts. The constitutional injunction as enshrined in s 165( 4) of the Constitution
obliges them to assist and protect the courts. Moreover, our jurisprudence is
unambiguous that non-compliance by all members of South African society
lawyers, laypeople and politicians alike strikes at the rule of law and the
foundations of constitutional order.1 Four years of defiance is, by its very nature,
extraordinary .
1Secretary, Judicial Commissi on of lnquity into Allegations of State Capture v Zuma and Others (CCT 52/2 1) [2021] ZACC
18; 202 1 (5) SA 327 (CC) para l; Southern Africa Litigation Centre v Minister of Justice and Constitutional Development
and Others (27740/201 5) [201 5] ZAGPPHC 402; 201 5 (5) SA I (GP) para 37.2; Pheko and Others v Ekurhuleni
Metropolitan Municipality (No 2) [201 5] ZACC IO para I.
18
[ 42] Organs of state are not singled out for any preferential treatment and are not
immune to acquiescence with court orders. In Secretary, Judicial Commission of
Inquiry into Allegations of State Capture v Zuma and Others8 the following was
posited:
"It is indeed the lofty and lonely work of the Judiciary, impervious to public
commentary and political rhetoric, to uphold, protect and apply the Constitution and
the law at any and all costs. The corollary duty borne by all members of South African
society - lawyers, laypeople and politicians alike - is to respect and abide by the law,
and court orders issued in terms of it, because unlike other arms of State, courts rely
solely on the trust and confidence of the people to carry out their constitutionally
mandated function.".
[ 43] In Pheko and Others v Ekurhuleni Metropolitan Municipality (No 2)9
Nkabinde J held that :
"(t)he 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 to carry
out their functions depends upon it. As the Constitution commands, 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."
[44] In Southern Africa Litigation Centre v Minister of Justice and
Constitutional Development the following was held:
" ... if the State, an organ of State or State official does not abide by court orders, the
democratic edifice will crumble stone by stone until it collapses and chaos ensues." 10
8Secreta,y , Judicial Commission of Inquiry into Allegations of State Capntre v Zuma and Others (CCT 52/21) (202 1] ZACC
18; 202 1 (5) SA 327 (CC) para I. Ibid para I.
9 Op cit fn 7
10. Op Cit fn 7.
19
[ 45] In MEC for Health, Eastern Cape & Another v Kirkland Investments (Pty)
Ltd t/a Eye and Lazer Institute the following was stated regarding the duty placed
on organs of state:
"There is a higher duty on the state to respect the law, to fulfil procedural requirements
and to tread respectfully when dealing with rights. Government is not an indigent or
bewildered litigant adrift on a sea of litigious uncertainty, to whom the costs must
extend a procedure-circumventing lifeline. It is the Constitution 's primary agent. It
must do right and it must do it properly." 11
[ 46] These principles apply with full force to the Municipality ' s four-year
disregard of the 2021 Order. The ongoing daily harm to innocent third parties is
a further exceptional circumstance. Advocate Chwaro ' s contention that only two
market agents were identified on the founding papers understates the systemic
nature of the harm . This to my mind is ofno moment. What warrants accentuating
is that Market agents who fail to pay producers within five business days breach
the AP A Act and their registration conditions , exposing them to regulatory
sanctions by AP AC, including deregistration.
[ 4 7] Deregistration cannot be undone by a damages award ex post facto.
Producers who do not receive the proceeds of their sales cannot fund subsequent
production cycles; those losses are permanent for farmers operating on narrow
margins. These consequences fall on parties who bear no responsibility for the
Municipality 's default. The facts are closely analogous to those in which courts
have found exceptional circumstances where an organ of state's non-compliance
holds third parties to ransom. 12
11 MEC for Health, Eastern Cape & Another v Kirkland Investments (Pty) Ltd t/a Eye and Lazer institute 2014 (3) SA 48 1
(CC) para 82.
12FourieFismer Inc and Others v Road Accident Fund, [2020] ZAGPPHC 183; [2020) 3 All SA 460 GP; 2020 (5) SA 465
(GP) para 35; Minister of Home Affairs and Others v Somali Association of South Africa Eastern Cape ( SASA EC) and
Another 2015 (3) SA 545 (SCA) paras 6-7.
20
[ 48] The nature of the funds in the Bank Account adds further weight. Those
funds are trust monies that never belonged to the Municipality . Each day of
continued suspension is another day of their unlawful retention. Suspending an
order directed at preventing a continuing unlawful act is contradictory. It amounts
to condoning it. On the alternative remedy point, Advocate Chwaro's suggestion
that IMASA could obtain a further money judgment, as it did in 2021, has been
adequately addressed and does not necessitate repetition. As I see it structural
relief of the specific kind granted in the interim order is the only mechanism with
a realistic prospect of securing disbursement of trust funds pending the
finalisation of Part B.
[ 49] I turn to Advocate Chwaro' s counter-ground, which is the principal
submission advanced in support of the counter-application . Advocate Chwaro
submitted that the s 13 9( 5)( a) and ( c) of the Constitution intervention by the North
West provincial executive council constitutes an exceptional circumstance
favouring the Municipality . Of importance Advocate Chwaro opines that the
implementation of the interim order would obstruct the financial recovery plan
and cause the Municipality and the province irreparable harm.
[50] Section 139(5) of the Constitution addresses a municipality's own financial
crisis its budget, revenue, service delivery obligations , and commitments as a
governmental entity. A financial recovery plan imposed under that section
governs the Municipality ' s own finances. Properly understood s139(5) of the
Constitution does not extend to, and has no bearing on, trust monies held in a
closed account on behalf of private third parties. The ninety-five percent of
market proceeds belonging to market agents and producers never formed part of
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the Municipality 's finances. No nexus between the recovery plan and the Bank
Account was established on the evidence. The two functions do not overlap.
[ 51] Advocate Chwaro' s most cogent submission was the invocation of the
constitutionally protected autonomy of local government, which has been
confirmed to be constitutionally bolstered and to deserve respect.13 That principle
is well established. Notwithstanding, the disbursement of trust monies belonging
to private parties is not a function within the Municipality' s protected domain. To
permit the Municipality 's own financial mismanagement which triggered the s
139 of the Constitution intervention to function as a shield against obligations to
private trust beneficiaries would be constitutionally impermissible.
[52] The s 139 of the Constitution regime is designed to restore constitutional
governance, not to enable a municipality to defer the disbursement of funds to
which it was never beneficially entitled. The counter-ground fails and the
counter-application is dismissed. On the contrary, the s 139 of the Constitution
intervention lends further urgency to compelling compliance with the
Municipality's trust obligations.
Irreparable harm and balance of harm
[53] On the irreparable harm requirements, I accept the submissions of
Advocate de Beer SC. Market agents face deregistration by APAC and producers
face loss of production capacity that cannot be recouped by a damages award.
The harm flows directly from the Municipality 's conduct and compounds daily.
It is irreparable in every sense relevant to s 18(3) of the Act.
13CDA Boerdery (Edms) Bpk and Others v Nelson Mandela Metropolitan Municipality 2007 (4) SA 276 (SCA) para 33.
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[54] The nature of the harm to IMASA's members warrants closer
examination. Market agents are registered under the AP A Act and are bound by
Rule 32 to account to producers within five business days of each sale. That
obligation is not discretionary. Where the Municipality retains the proceeds
beyond the prescribed period, market agents are placed in the impossible position
of being required by statute to pay over funds they have not received. Each day
of continued suspension is another day on which market agents are exposed to
regulatory sanction by APAC.
[55] Deregistration, once imposed, carries consequences that no subsequent
damages award can repair. The loss of a licence to operate is permanent and
irreversible, and the market agent's business relationships, trading relationships
and reputation in the industry cannot be restored by money. The prejudice is not
abstract or speculative. It is ongoing, measurable and compounds with each
trading day.
[56] The position of producers and farmers is equally compelling. Producers
who sell through market agents at the MFPM operate within narrow commercial
margins. The proceeds of each sale are not surplus income; they are the working
capital required to fund the next production cycle. Where those proceeds are
withheld by the Municipality beyond the statutory period, the farmer cannot plant
the next crop. That loss is not recoverable. A damages award months or years
later cannot restore a missed growing season, cannot undo a defaulted loan, and
cannot reconstitute a farming operation that has collapsed in the interim. This is
precisely the kind of harm that the courts have recognised as irreparable in the
context of s 18(3). Harm that is immediate, continuing and incapable of adequate
monetary remedy.
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[57] In FourieFismer Inc and Others v Road Accident Fund Hughes J found
exceptional circumstances where an organ of state's failure to comply with its
obligations held the public to ransom.14 The present facts are, if anything, more
acute. It is not the public in the abstract but identifiable producers and market
agents whose livelihoods depend directly on the Municipality's compliance with
its forty-eight-hour payment obligation.
[58] Advocate Chwaro's submission that the Municipality will suffer more
harm from implementation than the market agents will suffer from continued
suspension is wide of the mark. This is anchored on the following. The interim
order withholds no lawful funds of the Municipality. Its ownership and
management of the MFPM are wholly unaffected, and its five percent
commission may be withdrawn from the Bank Account without the authorisation
of Mr Hooghiemstra. The contention that the s 139 of the Constitution recovery
plan will be impeded by implementation of the interim order is without factual
foundation for the reasons already given. It logically follows that a party
restrained from continuing with an unlawful act does not suffer irreparable harm.
[59] The Municipality must establish, on a balance of probabilities, that it will
suffer irreparable harm if the interim order is implemented. It has not done so.
Three distinct answers present themselves. First, the interim order does not affect
any property, revenue or entitlement of the Municipality. The Bank Account
holds trust monies that never belonged to the Municipality. Its five percent
commission is expressly excluded from the order and may be withdrawn at any
time without the authorisation of Mr Hooghiemstra. The Municipality is not being
deprived of anything it lawfully possesses; it is being restrained from retaining
what it was never entitled to keep. A party restrained from perpetuating an
14 Op cit fn 12 para 35 and 85.
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unlawful act does not thereby suffer harm that the law recognises as weighing in
a s 18(3) enquiry.
[60] Second, the Municipality's ownership and management of the MFPM are
wholly unaffected. The interim order does not transfer ownership of the market,
does not remove the Municipality from its role as market operator, and does not
displace any statutory function properly belonging to the Municipality. What it
does is ensure that trust monies collected at the market are disbursed to their
rightful owners within the period prescribed by law. That is a function the
Municipality was always obliged to perform. The interim order restores, rather
than interferes with, the legal order.
[61] Third, the s 139(5) financial recovery plan, upon which the Municipality
principally relies to establish irreparable harm, operates in an entirely separate
sphere from the Bank Account. A recovery plan directed at the Municipality's
own finances its budget, revenue, service delivery obligations and governmental
commitments has no bearing on trust monies held for private third parties. The
ninety-five percent of market proceeds belonging to market agents and producers
never formed part of the Municipality 's finances. The Municipality placed no
evidence before this Court establishing any practical nexus between the recovery
plan and the disbursement obligations under the interim order. Bare assertion
cannot substitute for proof. The Municipality has accordingly failed to discharge
the onus imposed bys 18(3) and no irreparable harm to the Municipality has been
established.
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[62] The application in terms of s 18(3) of the Act accordingly succeeds. The
counter-application is dismissed.
Costs
[63] Costs are at the discretion of the court. IMASA has been substantially
successful and is entitled to its costs. The opposition to the s 18(3) application,
the prosecution of the counter-application , and the grounds advanced in the leave
to appeal application are a further chapter in the same narrative of non
compliance and delay that necessitated the main application. The proceedings
required two counsel and involved a contested counter-application. A punitive
costs order is warranted in respect of all three applications.
Order
[64] Resultantly , the following order is made:
1. The application for leave to appeal by the first and second respondents
against the judgment and interim order of this Court dated 12 May 2026 is
dismissed.
2. The application in terms of section 18(3) of the Superior Courts Act 10 of
2013 succeeds.
3. The operation and execution of the interim order granted by this Court on
12 May 2026 under Case No 3195/2025 shall not be suspended pending
the determination of the first and second respondents' application for leave
to appeal or any subsequent appeal.
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4. The interim order granted on 12 May 2026 is to be implemented and
executed with immediate effect.
5. The counter-application by the first and second respondents in terms of
sections 18(1) and (2) of the Superior Courts Act 10 of2013 is dismissed.
6. The first and second respondents shall pay the costs of the section 18(3)
application, the counter-application, and the leave to appeal application,
including the costs of two counsel where so employed, jointly and
severally, the one paying the other to be absolved, on the scale as between
attorney and client.
A REDDY
JUDGE OF THE HIGH COURT OF SOUTH AFRICA
NORTH WEST DIVISION, MAHIKENG
Appearances
For the Applicant : Adv J de Beer SC
Instructed by Lotz Baloyi Hom Inc, Pretoria
c/o Van Rooyen Tlhapi Wessels Attorneys, Mahikeng
For the First and Second Respondents: Adv OK Chwaro
Instructed by Modiboa Attorneys Inc., Mahikeng