THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Case no: 2026 – 048139
In the matter between:-
PATIENCE SHUMBA Applicant
and
SIDMEDIA First Respondent
SOUTHERN AFRICA INDIAN-OCEAN DIVISION OF
THE SEVENTH DAY CHURCH (SID) Second Respondent
DR HARRINGTON AKOMBWA Third Respondent
MAVIS MWEEMBA Fourth
Respondent
Date of hearing: 11 June 2026
Summary: S 18(3) Superior Courts Act – by nature urgent application –
however requirements of urgency must still be satisfied – principles relating to
urgency considered – applicant satisfying requirements of urgency –
application considered as one of urgency under Rule 38
S 18(3) Superior Courts Act – requirements for application of section
considered – meaning of exceptional circumstances and irreparable harm
(1) REPORTABLE: YES
(2) OF INTEREST TO
OTHER JUDGES:
YES
(3) REVISED: YES
29 June 2026
2
considered – constitutes holistic enquiry and not compartmentalized approach
– involves weigh-off on prejudice – overall considered requirements for relief
not satisfied by applicant
S 18(3) Superior Courts Act – prospects of success on appeal as p art of
exceptional circumstances – prospects of success ordinarily not material
consideration – prospects of success however can establish exceptional
circumstances – prospects of success of respondent overwhelming –
exceptional circumstances justifying refusal of relief
Fair hearing – Court bound to only afford relief as prayed for in pleadings –
applicant in matter before Court seeking interim relief pending final decision
for declaratory / directory relief in main matter – respondent only required to
answer such case – Court deciding to grant final relief on all issues including
declaratory / directory relief – such approach not competent and violating right
of respondent to fair hearing – respondent filing appeal on such ground –
prospects of suc cess on appeal overwhelming – enforcing order in such
circumstanced would be unjust
S 18(3) Superior Courts Act – irreparable harm to applicant – case of applicant
primarily founded on financial considerations – such considerations do not
establish irreparable harm for purposes of s 18(3) – applicant no different from
all other litigants not receiving salary due to termination of employment –
applicant able to obtain substantial redress in ordinary course i f successful –
no irreparable harm shown
S 18(3) Superior Courts Act – irreparable harm to respondents – harm to
respondents also primarily based on financial considerations – however harm
to respondents also founded on having to comply with unjust order –
respondents cannot be expected to comply whilst pursuing only process to
remedy such injustice – weigh off of prejudice favours respondents
Conclusion – applicant failing to make out case under s 18(3) – relief refused
3
JUDGMENT
SNYMAN, AJ
Introduction
[1] The current matter for determination concerns an urgent application brought
by the applicant in terms of section 18(3) of the Superior Courts Act1, in terms
of which the applicant seeks relief to the effect that orders granted by Prior AJ
in a judgment handed down on 24 March 2026 not be stayed by the pending
appeal and application for leave to appeal brought by the respondents against
such orders, and that these respondents be ordered to immediately
implement such orders. The application was opposed by the respondents.
[2] The application was first brought on 30 April 2026 and set down for 19 May
2026. In this application, the applicant sought relief that the order of 24 March
2026 not be stayed and be implemented pending the determination of an
application for leave to appeal brought by the respondents at the time. It came
before Orr AJ on 19 May 2026. However, and on such date, the learned
Judge granted an order removing the matter from the roll, due to intervening
events.
[3] On 26 May 2026, the applicant then filed a second application in terms of
section 18(3), but on this occasion, as Prior AJ had granted partial leave to
appeal, the applicant sought relief to the effect that the order of 24 March
2026 not be stayed and be implem ented pending the appeal noted by the
respondents. The respondents had also filed a petition for leave to appeal to
the Labour Appeal Court (LAC) based on the grounds in the application for
leave to appeal that had been refused by Prior AJ, and the applicant equally
1 Act 10 of 2013.
4
sought an implementation order pending that petition. This application was set
down on 11 June 2026, and this is how it came before me.
[4] When the matter came before me on 11 June 2026, there had been a full
exchange of pleadings, and both parties filed written heads of argument. The
matter was heard virtually. After hearing both parties, and because of the
provisions of section 18( 4)(a)(i) 2 , I reserved judgment. I now hand down
written judgment. For ease of reference, I will refer to the respondents jointly
as ‘the Church’.
Urgency
[5] In opposing this matter, the Church has taken issue with the urgency of the
application. It pointed out that it took the applicant about a month to b ring the
initial application in terms of section 18(3), considering the catalyst for that
application was the Church’s application for leave to appeal file d on 26 March
2026. The Church further complains that after the abortive process on 19 May
2026, it took a further two weeks to bring the current application. According to
the Church, there is no explanation for this delay. In fact , considering the
founding affidavit of the applicant, she has very little to say about the issue of
urgency. She appears to approach the matter on the basis that considering
the nature of the matter and the purpose of the relief sought , she is entitled to
an urgent determination of the matter.
[6] Th approach adopted by the applicant towards urgency is not entirely
accurate. Even the particular nature of section 18(3) proceedings does not
render it automatically urgent. Whilst it true that section 18(3) proceedings do
enjoy an inherent quality of urgency ,
3 that is not automatic urgency and the
2 The section reads: ‘If a court orders otherwise, as contemplated in subsection (1) - (i) the court must
immediately record its reasons for doing so …’.
3 See Caterpillar Financial Services South Africa (Pty) Ltd v MNTK Projects Proprietary Limited
(Leave to Appeal) 2025 JDR 1717 (LP) at para 26; Sable Place Properties 106 (Pty) Ltd and Others v
Visa Security Group (Pty) Ltd and Another (Leave to Appeal) 2025 JDR 3670 (GP) at para 5; Volvo
Financial Services Southern Africa (Pty) Ltd v Adamas Tkolose Trading CC 2023 JDR 2806 (GJ) at
para 6; Board of Healthcare Funders NPC v Council for Medical Schemes and Others 2023 JDR 3069
(GP) at para 8; Merge IT Recruitment CC v Brits and Another (2016) 37 ILJ 1145 (LC) at para 37.
5
requirements for urgency under Rule 38 must still be addressed and satisfied.
A similar situation h as been dealt with in the context or urgency in
enforcement of restraint of trade applications , which also enjoy an inherent
quality of urgency, 4 and where it has been held that nonetheless, the
requirements of urgency must still be satisfied. 5 I believe the same
considerations would apply here. Let me explain why. It surely cannot be
considered to be appropriate that an applicant basically at any time during t he
course of the determination of an appeal or an application for leave to appeal
can decide to ask for interim enforcement , despite procrastinating for months
and doing nothing, just because it is inherently urgent . After all, one of the
core purposes of section 18(3) proceedings is to prevent irreparable harm to
the applicant, and it can hardly be said that this is a realistic prospect if the
application is not brought at the first available opportunity.
[7] In my view, the Church is correct where it comes to it s complaints about the
manner in which the applicant approached urgency. The applicant needed to
provide an explanation why it took her so long to bring the application. She
also needed to bring the application at the first available opportunity .
However, the applicant did not deal with this in her application at all.
[8] What the applicant needed to deal with in her application was the ordinary
requirements necessary to establish urgency summarized in Association of
Mineworkers and Construction Union and Others v Northam Platinum Ltd and
Another
6 as follows: (a) the applicant has to set out explicitly the
circumstances which renders the matter urgent with full and proper
particularity; (b) the applicant must set out the reasons why the applicant
cannot be afforded substantial redress at a hearing in due course; (c) where
an applicant seeks final relief, the court must be even more circumspect when
an applicant seeks final relief, the court must be even more circumspect when
4 See Mozart Ice Cream Classic Franchises (Pty) Ltd v Davidoff and Another (2009) 30 ILJ 1750 (C)
at 761.
5 In Vumatel (Pty) Ltd v Majra and Others (2018) 39 ILJ 2771 (LC) at para 5 the Court said: ‘… An
urgent restraint of trade application is still nothing else but an urgent application, just like any other
urgent application where final relief is sought. The ordinary requirements applicable to such urgent
applications must still find application. The fact that one is dealing with a restraint of trade is not some
kind of license that in itself establishes urgency, to the exclusion of all other considerations …’. See
also Ecolab (Pty) Ltd v Thoabala and Another (2017) 38 ILJ 2741 (LC) at para 20.
6 (2016) 37 ILJ 2840 (LC) at paras 20 – 26, and all the authorities cited there.
6
deciding whether or not urgency has been established; (d) urgency must not
be self-created by an applicant, as a consequence of the applicant not having
brought the application at the first available opportunity; (e) the possible
prejudice the respondent might suffer as a result of the abridgement of the
prescribed time periods and an early hearing must be considered; and (f) the
more immediate the reaction by the litigant to remedy the situation by way of
instituting litigation, the better it is for establishing urgency. The applicant did
not do so.
[9] Thus, I was tempted t o non-suit the applicant based on a lack of urgency.
However, I believe the applicant is saved in this regard by the fact that it can
be said that the later developments, after the leave to appeal application was
first brought , to be some sort of novation. This is because a n actual
subsequent finding by the original Court on leave to appeal may have an
impact on the assessment of the matter , and may require supplementary
addressing of the issues under section 18(3). In casu, Prior AJ did decide the
leave to appeal application on 12 May 2026. This at least reduces the delay to
some two weeks, which is how long it took after that to file the second section
18(3) application. By saying this I am not excusing the applicant from the
earlier delay, and I remain of the firm view that she should have brought the
first application far earlier. But these later events do impact on the
assessment when deciding urgency , because i t can be said that the filing of
the notice of appeal and petition for leave to appeal by the Church would also
be an appropriate point in time to have brought the section 18(3) application,
which appeal proceedings happened two days after the leave to appeal
judgment of Prior AJ. The following dictum in Letsholonyane v Minister of
Human Settlements and Another
7 is apposite in this respect:
‘The main judgment having been delivered on 15 May 2023, the respondents
‘The main judgment having been delivered on 15 May 2023, the respondents
had as the timeline has demonstrated, lodged their application for leave to
appeal within two days of that judgment. Thus, no purpose would have been
7 (2023) 44 ILJ 2757 (LC) at para 15.
7
achieved by the applicant filing this or any application in enforcing or
executing the order pending a ruling on the leave to appeal.’
[10] The second consideration that saves the applicant is the inability to obtain
substantial redress in the ordinary course. I accept that in some instances , a
delay and procrastination may be so substantial or extreme , without any
proper explanation for it, that this requirement of substantial redress is
effectively rendered obsolete, and an applicant must fail on urgency on such
basis alone. But this is not such a case . The delay is not extreme, and there
are intervening events. So, the inability to obtain substantial redress in the
ordinary course remains relevant. The proceedings under section 18(3) and
(4) are bespoke and contemplate being expeditiously disposed of. There are
no other means open to the applicant to obtain the kind of relief afforded by
these provisions in the ordinary course.
[11] I also consider that, overall, the Church had ample time to formulate a
response to the application. Much of the work needed in opposing t he
application had been done in the course of prosecuting the appeal and in filing
the petition for leave to appeal. The application by the applicant is not unduly
lengthy, and can readily be answered. This mitigates prejudice to the Church
resulting from truncated time periods.
8
[12] In the end, I consider it to be in the interests of justice that this application be
urgently dealt with. Although there is an undue delay with little explanation for
it, for which the applicant can legitimately be criticised , there are intervening
events that must be taken into account. Considering that at the heart of
deciding the current application is the issue of irremediable prejudice, as may
be applicable to both parties, it must be in the interest of the parties to obtain
finality on the issue, instead of striking it from the roll and kicking it down the
finality on the issue, instead of striking it from the roll and kicking it down the
track to be decided later. The issue of the inability to obtain substantial
redress in the ordinary course is also an important factor. I am thus inclined to
decide this matter as one or urgency.
8 See Trendy Greenies (Pty) Ltd t/a Sorbet George v De Bruyn and Others (2021) 42 ILJ 592 (LC) at
para 12.
8
Background facts
[13] The applicant i s employed by the Church as chief financial officer (CFO),
having commenced employment in March 2019. She is employed on a
permanent basis in terms of a contract of employment signed on 19 May
2021. However, her employment was subject to the esoteric rules, beliefs and
practices of the Church.
[14] Further, the applicant is married to Good-Son Shumba (Good- Son), who is
from Zimbabwe (the applicant is also from Zimbabwe) , and who was also
employed by the Church. In 2025, Good- Son was required to take up the
position of Chief Financial Officer at the Mission of the Church in
Mozambique. He declined to take up that position. That meant he had to
relocate back to his original M ission in Zimbabwe, where a position for him
would be found. It is common cause that Good- Son has now resigned from
the Church, but this only happened after the hearing before Prior AJ.
[15] According to the Church, because the Church had decided that Good- Son
would be deployed elsewhere, with Church doctrine and policy being that
married persons employed by the Church shall not be separated, the
applicant was told at a meeting held in November 2025 that she would no
longer occupy the position of CFO and she also had to relocate, because
Good-Son needed to return to Zimbabwe . She was told that an alternative
position would have to be found for her where Good-Son was deployed, being
in Zimbabwe.
[16] The applicant challenged this decision to higher authorities of the Church. She
also pursued an unfair labour practice dispute to the CCMA , however this
dispute was later withdrawn. The Church however remained of the view that
Church policy dictated that the applicant’s role as CFO would end effective 1
February 2026 when Good- Son was required to return to Zimbabwe. There
was a dispute as to whether the Church actually terminated her employment,
9
but this issue need not concern this judgment. The applicant was paid until 31
January 2026, whereafter the payment of her salary stopped.
[17] On 2 March 2026, the applicant launched an urgent application. It is important
for the purposes of this application, for reasons dealt with later, to determine
exactly what the applicant was asking for in such proceedings. The applicant’s
notice of motion was divided into two parts, being part A and part B. Part A
was the urgent application. Part B related to relief sought in the ordinary
course. In part A, the applicant sought relief to the effect that the Church
continue to make the applicant’s monthly salary payments to her, pending the
final determination of her dis pute under part B. In part B, the applicant asks
for final declaratory and directory relief. The terms of the declaratory relief is
that it be declared that she is employed by the Church on a permanent basis
as CFO, and that it further be declared that her removal from that position was
unfair, invalid and be set aside. The prayer for directory relief is in the form of
her reinstatement into the position as CFO.
[18] Turning to her founding affidavit, the applicant indicates that her case is based
on her contract of employment and the application is brought under section 77
of the B asic Conditions of E mployment Act (BCEA) 9. She explains, where it
comes to the nature of the application, that the relief she is seeking on an
urgent basis is that the Church continues to pay her salary pending a
determination under part B. She records that ‘The nub of this application rests
on the unlawful decision of the Respondents to stop my remuneration when in
their stated position I am still regarded to be an employee’. The bulk of the
founding affidavit is devoted to making out a case for the granting of interim
relief, including the harm and prejudice she would suffer i f her salary is not
paid. And then, under the ambit of establishing a prima facie right to the relief
paid. And then, under the ambit of establishing a prima facie right to the relief
sought, she pleads reliance on her contractual right to her salary read with
section 32 of the BCEA.
9 Act 75 of 1997 (as amended).
10
[19] The Church opposed the application, and in its opposition highlighted what it
described as sever al endemic deficiencies in the applicant’s application. In
particular, it took issue with the competence of the notice of motion, the basis
for the relief sought by the applicant, which seemed to be couched both in the
form of interim and final relief . In her replying affidavit, the applicant then
explained the relief she s ought, and indicated that she only sought interim
relief for the restoration of her salary payments . She explains that under part
B she s ought to make out a case for a declaratory order, and the Court ‘has
an option’ to make such an order.
[20] The application came before Prior AJ on 6 March 2026. According to the
Church, as will be dealt with in more detail later, the case before Prior AJ only
concerned the urgent interim relief regarding the continued payment of the
applicant’s salary, and the parties were directed by the learned Judge to focus
on the question of urgency in presenting argument. Urgency was then argued
and to a limited extent the merits of the matter. The Church contends that the
learned Judge reserved judgment on the question of urgency, however then,
in the judgment of 24 March 2026, proceeded to grant substantial and final
relief against the Church on all the issues raised in the notice of motion. The
Church complained that this violated its right to a hair hearing. The Church
was particularly concerned about the fact that the learned Judge found that
the Church policy related to employed married people and their staying
together is inimical to public policy , whilst the Church in the hearing before
Prior AJ had specifically stated that due to a lack of time afforded to oppose
the application, it could not fully ventilate this issue.
[21] The Church filed an application for leave to appeal on 26 March 2026, two
days after the judgment. In the application for leave to appeal, it raised
days after the judgment. In the application for leave to appeal, it raised
several issues, and in particular focussed on what it considered to be conduct
of Prior AJ in making the findings that he did, contending that this violated its
right to a fair hearing. A specific challenge also related to the fact that final
relief was granted in matters concerning Church policy, when this sh ould not
have been dealt with in urgent proceedings on a final basis.
11
[22] On 12 May 2026, Prior AJ handed down judgment in the application for leave
to appeal.10 The learned Judge was convinced to grant leave to appeal on the
issue of the Church policy relating to the termination of a position where
spouses working for the Church would be required to be separated, which
was referred to by the learned Judge as the ‘doctrine of entanglement’. Where
it came to the issues of final relief being granted, the learned Judge refused
leave to appeal, on the basis that he considered his views in the he aring to be
that argument be focussed ‘ mainly’ on the issue of urgency and that the
merits were dealt with. The learned Judge in essence adopted the view that
his decision w as justified because he believed that a proper case had been
made out for final relief on the facts as set out in the pleadings and he had an
opportunity of a f ull a nd proper analysis of the matter before j udgment was
given.
[23] On 29 May 2026, the Church then noted an appeal to the LAC on the issue of
the doctrine of entanglement , for which it had received leave to appeal fr om
Prior AJ. It however at the same time also filed a petition for leave to appeal to
the LAC on all the other leave to appeal gr ounds that had been rejected by
Prior AJ. Therefore, and as matters st ood when the application came before
me, there is a proper appeal and a petition for leave to appeal pending, both
of which need to be decide d by the LAC. As such, the order of Prior AJ of 24
March 2026 is suspended in terms of section 18(1) of the Superior Courts Act.
This is then what led to the current application by the applicant in terms of
section 18(3) of the Superior Courts Act.
Section 18(3)
[24] Section 18(1) of the Superior Courts Act provides that: ‘Subject to subsections
(2) and (3), and unless the court under exceptional circumstances orders
otherwise, the operation and execution of a decision which is the subject of an
otherwise, the operation and execution of a decision which is the subject of an
application for leave to appeal or of an appeal, is suspended pending the
10 The judgment was dated 9 May 2026 but was only delivered on 12 May 2026.
12
decision of the application or appeal .’. This matter does not concern section
18(2). Turning then to Section 18(3), it provides:
‘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.’
[25] In University of the Free State v Afriforum and Another 11 , the SCA had
occasion to consider how section 18(3) was to be applied, and had the
following to say:
‘It is further apparent that the requirements introduced by s 18(1) and (3) are
more onerous than those of the common law. Apart from the requirement of
'exceptional circumstances' in s 18(1), s 18(3) requires the applicant 'in
addition' to prove on a balance of probabilities that he or she 'will' suffer
irreparable harm if the order is not made, and that the other party 'will not'
suffer irreparable harm if the order is made. The application of rule 49(11)
required a weighing-up of the potentiality of irreparable harm or prejudice
being sustained by the respective parties and, where there was a potentiality
of harm or prejudice to both of the parties, a weighing-up of the balance of
hardship or convenience, as the case may be, was required. Section 18(3),
however, has introduced a higher threshold, namely proof on a balance of
probabilities that the applicant will suffer irreparable harm if the order is not
granted, and conversely that the respondent will not if the order is granted.’
[26] It would appear fr om the judgment in Afriforum that the Court postulated that
an enquiry under section 18(3) concerned satisfying three distinct and
separate requirements. First, it must be proven by the applicant there exist
exceptional circumstances . Second, it must be proven on a balance of
exceptional circumstances . Second, it must be proven on a balance of
probabilities that the applicant will suffer irreparable harm if the order is not
granted. And third, it must be proven on a balance of probabilities that the
respondent will not suffer irreparable harm if the order is granted. These
11 2018 (3) SA 428 (SCA) at para 10.
13
requirements are then considered and applied as distinct and separate
requirements, each having to be individually established in its own right. 12 But
more recently, the SCA in Tyte Security Services CC v Western Cape
Provincial Government and Others 13 specifically reconsidered that approach,
where the Court said:
‘Whilst there are indeed statements in those judgments that would appear to
support counsel's fundamental hypothesis, they seem to have been made in
passing. They thus call for closer examination in this matter. An important
point of departure, so it seems to me, is that consideration of each of the so-
called three requirements is not a hermetically sealed enquiry and can hardly
be approached in a compartmentalised fashion.
’
The Court in Tyte supra proceeded to then consider how the requirements of
section 18(3) should be considered and applied, where the Court pertinently
held:14
‘… Even accepting that the legislature has employed the words 'in addition [to
exceptional circumstances] proves on a balance of probabilities' in s 18(3), it
would be passing strange that, if an applicant comes short in respect of either
the second or third requirements, it would nonetheless still be able to
successfully meet the exceptional circumstances threshold. The use of the
words 'in addition proves' in s 18(3) ought not to be construed as necessarily
enjoining a court to undertake a further or additional enquiry. The overarching
enquiry is whether or not exceptional circumstances subsist. To that end, the
presence or absence of irreparable harm, as the case may be, may well be
subsumed under the overarching exceptional circumstances enquiry. As long
as a court is alive to the duty cast upon it by the legislature to enquire into,
and satisfy itself in respect of, exceptional circumstances, as also irreparable
harm, it does not have to do so in a formulaic or hierarchical fashion.
harm, it does not have to do so in a formulaic or hierarchical fashion.
12 See Ntlemeza v Helen Suzman Foundation and Another 2017 (5) SA 402 (SCA) at para 35; Knoop
NO and Another v Gupta (Execution) 2021 (3) SA 135 (SCA) at para 48.
13 2024 (6) SA 175 (SCA) at para 10.
14 Id at paras 14 – 15.
14
Although it has been postulated that the second and third are distinct and
discrete enquiries, they are perhaps more accurately to be understood as
being two sides of the same coin. The same facts and circumstances, which
by that stage ought largely to be either common cause or undisputed, will
inform both enquiries. The logical corollary of an applicant suffering
irreparable harm will invariably — but not always — be that the other party
has not. The enquiry into each can thus hardly be mutually exclusive,
particularly because, as far as the third is concerned, unlike the second, the
onus cast upon an applicant would be to prove a negative, in accordance with
the usual civil standard. This suggests that, as with the exceptional
circumstances enquiry, a court considering both the second and third must
have regard to all of the facts and circumstances in any particular case.
Insofar as the third goes, although s 18(3) casts the onus (which does not
shift) upon an applicant, a respondent may well attract something in the
nature of an evidentiary burden. This would be especially so where the facts
relevant to the third are peculiarly within the knowledge of the respondent. In
that event it will perhaps fall to the respondent to raise those facts in an
answering affidavit to the s 18 application, which may invite a response from
the applicant by way of a replying affidavit.’ (emphasis added)
[27] So, what then constitutes ‘exceptional circumstances’? This was dealt with in
Incubeta Holdings (Pty) Ltd and Another v Ellis and Another15 as follows:
‘What constitutes 'exceptional circumstances' has been addressed by Thring
J in MV Ais Mamas Seatrans Maritime v Owners, MV Ais Mamas, and
Another 2002 (6) SA 150 (C) , where a summation of the meaning of the
phrase is given as follows at 156I – 157C:
'What does emerge from an examination of the authorities, however, seems
to me to be the following:
1. What is ordinarily contemplated by the words ''exceptional circumstances''
1. What is ordinarily contemplated by the words ''exceptional circumstances''
is something out of the ordinary and of an unusual nature; something which is
excepted in the sense that the general rule does not apply to it; something
15 2014 (3) SA 189 (GJ) at para 17. See also Ntlemeza (supra) at para 37; Knoop (supra) at para 46;
Tyte (supra) at para 12; Sibanye Gold Limited and Others v Valuation Appeal Board for Rand West
City Local Municipality and Others (Leave to Appeal) 2025 JDR 1291 (GJ) at para 19; Road Accident
Fund v Newnet Properties (Pty) Ltd t/a Sunshine Hospital and Another 2023 (5) SA 289 (GP) at para
11, where this exact reasoning was applied.
15
uncommon, rare or different; ''besonder'', ''seldsaam'', ''uitsonderlik'', or ''in
hoë mate ongewoon.
2. To be exceptional the circumstances concerned must arise out of, or be
incidental to, the particular case.
3. Whether or not exceptional circumstances exist is not a decision which
depends upon the exercise of a judicial discretion: their existence or otherwise
is a matter of fact which the Court must decide accordingly.
4. Depending on the context in which it is used, the word ''exceptional'' has
two shades of meaning: the primary meaning is unusual or different; the
secondary meaning is markedly unusual or specially different.
5. Where, in a statute, it is directed that a fixed rule shall be departed from
only under exceptional circumstances, effect will, generally speaking, best be
given to the intention of the Legislature by applying a strict rather than a
liberal meaning to the phrase, and by carefully examining any circumstances
relied on as allegedly being exceptional.
'
[28] In summary, as held in Ntlemeza v Helen Suzman Foundation and Another 16:
‘In UFS v Afriforum this court agreed that whether exceptional circumstances
were present depended on the facts of each case. The circumstances must
be such as to justify the deviation from the norm. …’. And in Jai Hind Emcc
CC t/a Emmarentia Convenience Centre v Engen Petroleum Ltd South
Africa17 it was said: ‘ … The question posed brings sharply into focus the
anterior question of exactly what it is that one is in search of in order to
conclude that a given fact-specific set of circumstances clears the threshold of
exceptionality. It must be recognised that 'exceptionality' is a value judgment
…’. Lastly in this respect, the Court in Moqhaka Local Municipality and
Another v Tshabalala
18 said:
‘Whether exceptional circumstances exist is a factual question that does not
involve the exercise of a discretion or, as the court in Incubeta put it,
‘[n]ecessarily, in my view, exceptionality must be fact-specific. The
‘[n]ecessarily, in my view, exceptionality must be fact-specific. The
16 2017 (5) SA 402 (SCA) at para 39.
17 2023 (2) SA 252 (GJ) at para 13.
18 (2025) 46 ILJ 2439 (LAC) at para 34. See also National Education Health and Allied Workers Union
v Minister of the Public Service and Administration and Others (2023) 44 ILJ 1207 (LA C) at paras 31
– 32.
16
circumstances which are or may be exceptional must be derived from the
actual predicaments in which the given litigants find themselves’. In
determining whether exceptional circumstances exist that warrant the order, a
court must also consider whether there are prospects of success in the appeal
...’
[29] In this case, the bulk of the Church’s opposition to the applicant’s application
was based on the issue that its appeal and petition for leave to appeal to the
LAC enjoyed substantial prospects of success, and as such, exceptional
circumstances justifying interim enforcement do not exist . Or in other words,
they argued that interim enforcement should be refused because they have
an extremely good case on appeal. Conversely , the applicant contended that
the Church’s appeal is basically hopeless and will likely fail. This brings a
crisp question into focus, namely what role would prospects of success on
appeal play in deciding whether or not to grant relief under section 18(3)?
[30] The issue of prospects of success on appeal decided in the context of an
application under section 18(3) is an unruly horse to saddle. A conspectus of
the wealth of authorities in this regard reveal that there are differing views.
Some authorities say prospects of success are an entirely irrelevant
consideration.19 Others say it must always be considered. 20 A third approach
is that it may be a factor, but it is not an important or decisive factor.21 No
matter what the approach is, it at least does appear to be competent to grant
or refuse relief under section 18(3) without needing to specifically consider
19 See f or example Incubeta (supra) at para 26; Liviero Wilge Joint Venture and Another v Eskom
Holdings Soc Ltd 2014 JDR 1611 (GJ) at para 30.
20 See Afriforum (supra) at para 15; Minister of Social Development Western Cape and Others v
Justice Alliance of South Africa and Another 2016 JDR 0606 (WCC) at para 27; Bliss Brands (Pty) Ltd
v Colgate- Palmolive (Pty) Ltd and Others 2025 JDR 2888 (GJ).22 – 23; Zero Azania (Pty) Ltd v
Caterpillar Financial Services SA (Pty) Ltd and a Similar Appeal 2024 (2) SA 574 (GJ) at para 41;
Meintjes and Meintjes Rekenmeesters CC v Annandale and Another 2025 JDR 0079 (GP) at para 30;
Langeni and another v South African Women in Mining Association and others (Leave to Appeal and
Section 18(3)) 2024 JDR 1113 (GJ) at para 16; Bitline SA 951 CC v Sasol Oil (Pty) Ltd and Another
2024 JDR 1652 (GJ) at para 19
21 See Tuhf Urban Finance (RF) Ltd v The House of Tandoor and Others 2022 JDR 0640 (GJ).at para
7. In Nene v District Municipality of Zululand and Others 2024 JDR 2706 (KZP) at para 28, the Court
said: ‘… the strength of the proposed appeal may only be a small factor to consider …’.
17
prospects of success. As said in Tuhf Urban Finance (RF) Ltd v The House of
Tandoor and Others22:
‘In Afriforum where the court did not have before the necessary material to
consider prospects of success, it candidly acknowledged that the prospects of
success played no role in the decision. Plainly, it must follow that although
a relevant factor to consider, prospects of success is not a necessary factor
...’
[31] Further in this respect, the Full Court in Road Accident Fund v Newnet
Properties (Pty) Ltd t/a Sunshine Hospital and Another 23 said: ‘… The debate
that raged amongst the members of the judiciary with regard to the role of
prospects of success in the analysis of a s 18 situation, seems to have been
settled by the SCA in AfriForum. We say 'seem' because there is no clear and
direct authority on this point, in our view, given what the SCA said at a later
stage … ’. The Court in Newnet Properties then concluded:
24
‘Nevertheless, of importance, in AfriForum, there was no record available and,
as such, prospects of success did not feature in the consideration of the
matter. This in our view is a demonstration that, even in the absence of
prospects of success, a court may successfully consider a s 18(3) application
and/or s 18(4) appeal. … ’
[32] I do not intend to ent er into this debate and decide whether prospects of
success are relevant or not. What I do believe is that after Afriforum, and
through the authorities that followed it , a middle way, so to speak, has
emerged, namely that prospects of success are relevant where such
prospects of success in itself indicates that that it is something exceptional in
the particular case. Or in other words, the prospects of success or lack of
prospects of success is so extreme and patently obvious and apparent, that it
necessitates being considered as par t of the exceptional circum stances
22 2022 JDR 0640 (GJ).at para 7.
23 2023 (5) SA 289 (GP) at para 23.
24 Id at para 24.
18
enquiry. 25 As held in Minister of Social Development, Western Cape and
Others v Justice Alliance of SA and Another26:
‘It follows that the less sanguine a court seized of an application in terms of s
18(3) is about the prospects of the judgment at first instance being upheld on
appeal, the less inclined it will be to grant the exceptional remedy of execution
of that judgment pending the appeal. The same quite obviously applies in
respect of a court dealing with an appeal against an order granted in terms of
s 18(3). The position is very much akin to that which pertains when interim
interdictory relief pending a judicial review is being considered.
’
And as pertinently explained in Mdletshe and another v Youtube Channel and
Another27:
‘... this Court, whilst accepting that it is obliged to consider the Respondent’s
prospects of success on appeal at this stage of the proceedings, is also alive
to the fact that same should not be over -emphasised to the detriment of other
pertinent and important factors. It is, as already stated, only one of the
relevant factors to be added into the “melting pot” of the various factors to be
taken into consideration in each particular case when arriving at a decision as
to whether an applicant has discharged the somewhat onerous burden of
proof in an application of this nature and proven, on a balance of probabilities,
both exceptional circumstances, together with irreparable harm and, at the
same time, no such harm to a respondent
.’
[33] I must confess that I have been a proponent of the notion that , generally
speaking, prospects of success should not play a role in deciding an
application under section 18(3). There are two reasons why this may be
problematic, which I believe still remain relevant . First, and in the context of
an application for leave to appeal, this Court would in essence be called upon
to reconsider its own orders outside the ambit of the actual application for
to reconsider its own orders outside the ambit of the actual application for
leave to appeal, as it is not required that the section 18(3) application be
25 See Minister of the Public Service (supra) at para 33; CCI SA (Umhlanga) (Pty) Ltd and Others v
Mobile Telephone Networks (Pty) Ltd and Others (2023) 44 ILJ 1055 (LC) at para 35.
26 [2016] JOL 35612 (WCC) at para 27.
27 2023 JDR 3164 (GJ) at para 32.
19
decided by the same Judge that considered the main matter. This is
undesirable. Second, and where an appeal may be noted or there is a p etition
for leave to appeal, the prospects of the appeal succeeding rests with a
decision by the Judges of the a ppeal Court, and it may be said, for all
practical purposes, that to decide the issue of prospects of success in such
circumstances would usurp the powers of the appeal Court in respect of an
appeal yet to be decided. 28 This was succinctly explained in Minister for Local
Government, Environmental Affairs and Development Planning, Western
Cape v Bitou Municipality and Others 29, with specific reference to the dicta in
Afriforum supra, as follows:
‘I do not take the above paragraphs in a matter concerning a s 18(4)(ii) appeal
as authority for the proposition that the court of first instance (which this court
is) should take into consideration the prospects of success on appeal. This
would mean a second guessing of its own judgment and order granting leave
to appeal. In any event as the above paragraphs reflect the SCA did not make
its decision in that matter based on a consideration of the prospects of
success on appeal, given the absence of the appeal record. I do not therefore
take submissions made by the parties on this question into account …’
[34] And further, it is difficult to decide whether there are prospects of success on
appeal without a proper consideration of the appeal record. In a section 18(3)
application, a Court would ordinality not have the benefit of an appeal record,
unless of course it is motion proceedings, where the Court may have access
to the pleadings bundle (the affidavits ) that formed the basis of the original
decision, and such pleadings constituting the evidence in the matter. But an
appeal record may compromise more than this. The point is that it is
undesirable to pronounce on the possible success on appeal without an
undesirable to pronounce on the possible success on appeal without an
appeal record. For example, the Court in Afriforum supra, despite deciding
that prospects of success are a relevant consideration, nonetheless did not
consider prospects of success, because it was not called on to decide the
28 Incubeta (supra) at para 26. See also Newnet Properties (supra) at para 28, where it was said: ‘… I
interpose and state that this court is not hearing the appeal at this stage. It is inappropriate for us at
this stage to second- guess the stance to be taken by the Constitutional Court when hearing the
application for leave to appeal … ’.
29 (2020) 41 ILJ 1154 (LC) at para 8.
20
appeal on the merits and was not seized with the appeal record. 30 And the
following comments in Knoop NO and Another v Gupta (Execution) 31 are
apposite:
‘There may be difficulties if the High Court takes the prospects of success into
account in granting an execution order, because it is not clear that the court
hearing an urgent appeal under s 18(4) will always be in a position to assess
the weight of this factor. As I have noted, in both UFS v
Afriforum and Ntlemeza the court disposed of the appeal by disregarding the
prospects of success on appeal. The urgency of the appeal almost inevitably
dictates that in this court, and possibly in a full court, the appeal court will not
have the record before it and will be confined to assessing the prospects of
success in the main appeal from the judgment alone. The usual principle that
an appeal court decides the appeal on the record before the High Court
cannot apply in those circumstances. …
’
[35] In sum, it is my view that where it comes to prospects of success, and
adopting a practical approach to everything that has been said in the various
Courts, the following approach is appropriate. First, a section 18(3) application
may be competently decided without reference to prospects of success, even
if it considered to be factor , where the Court considers it in a particular case
inappropriate to do so. Second, and even where the Court considers
prospects of success, it is a factor of lesser importance in an overall
assessment of exceptional circumstances. And third, where a consideration of
the prospects of success show that such prospects are patently obvious and
overwhelming, it could serve to establish exceptional circumstances , to either
to grant or refuse relief. As I have said above, this would include the case that
the likelihood that an appeal would succeed on the grounds raised is so
30 Id at para 15.
31 2021 (3) SA 135 (SCA) at para 50. The Court in Ntlemeza (supra) at para 44, actually said: ‘…
in UFS, in deciding the matter before it, this court recorded that the review record was not before it
and thus had no regard to the prospects of success. We are in the same position in the
present appeal. As in UFS, but more so, because of the application for leave to appeal the principal
order, pending in this case, before us the question of prospects of success recedes into the
background. As stated at the commencement of this judgment, s 18 has now had as a consequence
the curious and ostensibly undesirable position that there are two appeal processes in one appeal
court in relation to the same case’ (emphasis added).
21
compelling and patently obvious, that it would be a grave injustice to order
interim enforcement. On the other side of the coin, if the likelihood of success
on appeal is so extremely poor that it can comfortably be said the appeal is
nothing more than a stratagem to avoid compliance and it is thus highly
unlikely that an appeal will succeed, it can be said that it will lead to a grave
injustice if interim enforcement is not granted. It is clear that all of this would
be a fact specific enquiry in each and very individual case. In any view, and
properly considered, this is the approach adopted in Justice Alliance supra,
32
where the Court assessed prospects of success in order to determine whether
a particular case on appeal wa s so poor and completely lacking in merit, that
it was unlikely that it will ever be upheld on appeal , and as such, it would
establish the necessary exceptional circumstances justifying interim
enforcement.
[36] The next consideration is irreparable harm (prejudice), which of course
remains a critical factor , overall, in assessing exceptional circumstances. As
discussed above, although it can be said that there are distinct requirements
under section 18(3) to show that the applicant will suffer irreparable harm,
whilst the respondent will not suffer irreparable harm, it simply does not mean
a compartmentalised consideration of these requirements must be conducted.
This is because, as said in Tyte supra, both these requirements serve to
establish exceptional circumstances. In fact, the Court in Tyte made this clear,
as follows:33
‘What constitutes irreparable harm is always dependent upon the factual
situation in which the dispute arises, and upon the legal principles that govern
the rights and obligations of the parties in the context of that dispute. It was
accepted in Knoop that '(t)he need to establish exceptional circumstances is
likely to be closely linked to the applicant establishing that they will suffer
likely to be closely linked to the applicant establishing that they will suffer
irreparable harm if the . . . order is not implemented immediately'. The same, I
dare say, can be said of its counterpart, the absence of irreparable harm to
the respondent. In that sense, the presence or absence of irreparable harm,
32 See paras 27, 29, and 35 of the judgment.
33 Id at para 13.
22
as the case may be, can hardly be entirely divorced from the exceptional
circumstances enquiry. It would perhaps be logically incoherent for a court to
conclude, on the one hand, in favour of an applicant that exceptional
circumstances subsist, but, on the other, against an applicant on either leg of
the irreparable harm enquiry
.’
Applying what the court said in Tyte, the Full Bench in Alexkor SOC Ltd v Vast
Mineral Sands (Pty) Ltd and Others34 added:
‘In Tyte’s case, as can be seen from the passages quoted above, the SCA
recognises the fact that in most cases the irreparable harm would be
subsumed into the ‘exceptional circumstances’. In those circumstances one
would have to rely on the same facts and circumstances to establish both
requirements
.’
[37] In sum, and in my view, what would be appropriate is a weighing off of harm
that would be suffered by the respective parties , if an interim enforcement
order is granted on the one hand, as opposed to it being refused on the other.
The direction the scale would tip in , when conducting this w eight off, would
then determine whether irreparable harm exists or not, as one holistic enquiry.
The Court surely always have a residual discretion where to comes to this
harm (prejudice) weigh off, as specifically recognized in Tyte supra35.
Analysis
[38] In casu, the first consideration must be whether exceptional circumstances
are found in the nature of the right the applicant seek s to enforce, and the
circumstances under which she seek s to enforce it. In this context, and
considering the applicant pursued her right s by way of urgent motion
proceedings, she is bound by her case as pleaded in the notice of motion and
34 2024 JDR 3901 (NCK) at para 40.
35 Id at para 18. See also Sable Place Properties (supra) at para 17; Neumann v Western Cape
Education Department (2026) 47 ILJ 1363 (LC) at para 14.
23
founding affidavit. In Betlane v Shelly Court CC36 the Court said: ‘It is trite that
one ought to stand or fall by one's notice of motion and the averments made
in one's founding affidavit … ’. In Van Der Merwe and Another v Taylor NO
and Others37 it was similarly held that: ‘… The applicants must stand or fall by
the factual averments in their affidavits which are intended to support the
cause of action on which the relief sought is based … ’. And as to the
introduction of what may be described as a ‘new’ case, the Court in Brayton
Carlswald (Pty) Ltd and Another v Brews38 made the following clear:
‘In my view, there are two insurmountable hurdles in the 'new' version being
accepted. First, the general rule in motion proceedings is that an applicant
must stand or fall by the averments made out in its founding affidavit …’
[39] In her notice of motion, the applicant clearly and undeniably asked for interim
relief, which she confirmed in her replying affidavit. This interim relief prayed
for is specifically only that the Church continues to pay her salary, until the
issue of her declaratory and directly relief sought, which is articulated under a
separate heading (part B) in the notice of motion, is finally decided. A detailed
conspectus of the founding affidavit leaves me convinced that the applicant
made out no case for final relief where it comes to the declaratory and
directory orders she sought. It follows that the interim relief case is the only
case that Prior AJ would be permitted to decide. In this respect, the Court in
Molusi and Others v Voges NO and Others39 had the following to say:
‘It is trite law that in application proceedings the notice of motion and affidavits
define the issues between the parties and the affidavits embody evidence. As
correctly stated by the Supreme Court of Appeal in Sunker:
'If an issue is not cognisable or derivable from these sources, there is little or
'If an issue is not cognisable or derivable from these sources, there is little or
no scope for reliance on it. It is a fundamental rule of fair civil proceedings that
36 2011 (1) SA 388 (CC) para 29. See also Van Der Merwe and Another v Taylor NO and Others 2008
(1) SA 1 (CC) at para 122; President of the Republic of SA and Others v SA Rugby Football Union
and Others 2000 (1) SA 1 (CC) at para 150; National Council of Societies for the Prevention of
Cruelty to Animals v Openshaw 2008 (5) SA 339 (SCA) at paras 29-30; Passenger Rail Agency of SA
v Hoyo (2025) 46 ILJ 1123 (LAC) at para 18.
37 2008 (1) SA 1 (CC) at para 122.
38 2017 (5) SA 498 (SCA) at para 29.
39 2016 (3) SA 370 (CC) at para 27/
24
parties . . . should be apprised of the case which they are required to meet;
one of the manifestations of the rule is that he who [asserts] . . . must . . .
formulate his case sufficiently clearly so as to indicate what he is relying on.'
The purpose of pleadings is to define the issues for the other party and the
court. And it is for the court to adjudicate upon the disputes and those
disputes alone. Of course there are instances where the court may of its own
accord (mero motu) raise a question of law that emerges fully from the
evidence and is necessary for the decision of the case as long as its
consideration on appeal involves no unfairness to the other party against
whom it is directed. In Slabbert the Supreme Court of Appeal held:
'A party has a duty to allege in the pleadings the material facts upon which it
relies. It is impermissible for a plaintiff to plead a particular case and seek to
establish a different case at the trial. It is equally not permissible for the trial
court to have recourse to issues falling outside the pleadings when deciding a
case.
'
[40] In fact, it makes perfect legal sense that the applicant would not , in her urgent
application, seek final declaratory relief to the effect that she is permanently
employed and that her removal from her position of CFO is unfair and invalid
and be set aside. The same applies to the relief of reinstatement she seeks
under part B, as this is nothing but an order for specific performance. 40 Why
the applicant would not ask for this in urgent motion proceedings on a final
basis is because this kind of relief, especially on a final basis, is simply not
competent in such proceedings. As stated in Member of the Executive Council
for Education, North West Provincial Government v Gradwell
41, in deciding an
urgent application: ‘… A final declaration of unlawfulness on the grounds of
unfairness will rarely be easy or prudent in motion proceeding ...’. And further,
unfairness will rarely be easy or prudent in motion proceeding ...’. And further,
at the heart of the dipsute is nothing else but a breach of contract claim, and
there simply nothing special in such a claim that necessities urgent
40 See Pilanesberg Platinum Mines (Pty) Ltd v Ramabulana (2019) 40 ILJ 2723 (LAC) at para 31,
where it was said: ‘… The relief of reinstatement in terms of the LRA is the same as specific
performance that arises in a contractual dispute …’.
41 (2012) 33 ILJ 2033 (LAC) at para 46.
25
intervention, especially on a final basis . In Northam Platinum supra 42 the
Court held:
Whilst it may be so that a dismissal could in particular circumstances, and
where the LRA is not relied upon, be considered to be unlawful and
consequently invalid because of a specific provision in a contract of
employment which has been breached, this cannot per se serve to jump the
queue of all other dismissed employees relying on the provisions of the LRA
waiting for their turn in court. This kind of situation is merely another cause of
action upon which the termination of a contract of employment can be
challenged in the Labour Court. But other than that it holds no particular
magic ...’
Similarly, in Maphalle v National Heritage Council and Others43 the Court
decided:
‘... It is entirely inappropriate to drag the first respondent to court by way of
motion proceedings on extreme short notice to answer a case of breach of
contract and to address the issue of the remedies that may follow such breach
of contract, including the possibility of specific performance (the applicant
calls this reinstatement). The fact that there may be breach of contract does
not mean that specific performance (reinstatement) as a remedy follows as a
matter of course, and the court would need to be satisfied, on the basis of
proper evidence, that such relief is appropriate. It is seldom appropriate to
make these kinds of determinations, which are in the form of final declaratory
relief, in motion proceedings on an urgent basis.’
[41] I believe the applicant crafted her case with the above in mind. That is why
the notice of motion was split in two, with one part being dedicated to interim
relief on an urgent basis, and the other to final relief in the ordinary course.
The founding affidavit, overall considered, also specifically speaks to such
separation and is principally aimed at making out a case for interim relief. To
obtain this interim rel ief, the applicant would need to satisfy the following
obtain this interim rel ief, the applicant would need to satisfy the following
requirements as articulated in National Council of Societies for the Prevention
42 (2016) 37 ILJ 2840 (LC) at para 6.
43 (2023) 44 ILJ 579 (LC) at para 27.
26
of Cruelty to Animals v Openshaw 44: ‘… (a) A prima facie right. What is
required is proof of facts that establish the existence of a right in terms of
substantive law; (b) A well -grounded apprehension of irreparable harm if the
interim relief is not granted and the ultimate relief is eventually granted; (c)
The balance of convenience favours the granting of an interim interdict; (d)
The applicant has no other satisfactory remedy. ’ That is exactly what the
applicant sought to do, with specific reference to these requirements under
separate heading in her founding affidavit.
[42] So, it is clear that on the basis of the case that was pleaded, what came
before Prior AJ was an urgent application to decide if the Church should
continue to pay the applicant‘s salary until the dispute concerning t he breach
of her contract was decided in the ordinary course. What happened the
hearing on 6 March 2026 appears to be commensurate with this. The Church
has discovered, as part of its grounds for seeking leave to appeal to the LAC,
the transcript of the proceedings before Prior AJ and has made extensive
reference to it. A conspectus of this transcript leaves me convinced that what
was at stake before Prior AJ, and which the parties were required to address,
was the issue of urgency in the context of the urgent interim relief asked for.
Prior AJ was not addressed on granting final declaratory and directory relief ,
and the leaned Judge never asked to be addressed on the same nor did he
ever intimate that he was inclined to consider granting it.
[43] Whilst the Church referred me to many references in the transcript in this
respect, I will suffice by only referring to a few that I believe pertinent . When
presenting the Church’s argument to Prior AJ, its counsel, when referring to
what can be called the merits of the main case of the applicant, said: ‘ … we
would respectfully ask your Lordship not to deal with whether that was lawful
would respectfully ask your Lordship not to deal with whether that was lawful
or not on an urgent basis and under these circumstances … ’ Prior AJ answers
that: ‘I think your point is made, your point, your point is made in the sense
that it is not the aspect that I must concentrate on …’. In fact, the learned
44 2008 (5) SA 339 (SCA) at para 20. See also Eskom Holdings SOC Ltd v Vaal River Development
Association (Pty) Ltd and Others 2023 (4) SA 325 (CC) at para 253.
27
Judge recognises that the point in this regard concerns that this issue would
be a determination for another day.
[44] In reply to the submissions of the Church, the applicant’s counsel then argued
that the Court was already seized with sufficient information and with what he
termed concessions from the Church, to enable the Court to grant all the relief
sought in the notice of motion, including relief under part B, on a final basis.
This argument solicited an immediate objection from the Church’s counsel.
This objection led to the following exchange between the Church’s counsel
and Prior AJ:
‘Court: Right. Let me….. let him repeat his objections. Sorry Mr Grobler,
would you mind just repeating your objection
Mr Grobler: Yes. M’Lord, the, the, the argument in chief this morning relates
to the payment of the salary in the interim, in the interim, as if it is an interim
interdict and related only to that ...
Court: Yes.
Mr Grobler: I responded to that and I responded only to the question of
urgency, which Your Lordship had asked us to deal with
Court: Yes.
Mr Grobler: My learned friend is now dealing with relief that is sought beyond
Part A, let us forget about the urgency argument, and he is saying to the
Court, the Court is seized with all the facts of the matter in order to make a
determination on Part B, which is something that is on rudimentary level
different to what was argued in chief
Court: Yes
Mr Grobler: and from there, the objection ...’
[45] Prior AJ then explained to the applicant’s counsel that his (the Court’s)
understanding was that only part A of the application was argued, and it was
only about the payment of the applicant’s salary. The applicant’s counsel
answered that he held a different view and that he considered the Court
capable of making a final decision on both part A and part B . This then led to
the following exchange between the applicant’s counsel and Prior AJ:
28
‘Court: But, but to be, but to be honest with you, I do not recall you
mentioning the ability of the Court to make declaratory orders to reinstate
certain contractual relationship beyond the remedy that was being sought to
restore her status quo ante from a remuneration point of view. I certainly do
not recall there being any emphasis … despite your geenrla argument on that
basis, but so is th eapplciant seeking to have A and B dealt with this
morning?’
The applicant’s counsel answers in the affirmative and states that the
applicant made out that case. Prior AJ answers:
‘Court: Well, be but the problem is that it has not been argued on that basis
because we moved from are we dealing simply with an interim interdict with
urgency or are dealing with a final interdict with urgency?’
This answer was allowed by a further exchange between Prior AJ and
the applicant’s counsel concerning what was argued and in what
context it was argued. Following this debate, Prior AJ said:
‘
Court: So, the, the understanding and it seems to accord with your
opponent’s understanding, that what was being asked for this morning,
although it was confusing, was that of an interim relief in respect of monies
but that is the nub of where your….. the applicant is saying, listen, that is
where I am suffering the prejudice ...
Court: My understanding of his [Grobler] dealing with the facts of the
matter dealt with question of the allegations of unlawfulness of the contract
being determinate unlawfully and he, his, his concentration was on the basis
that the jurisprudence before this Court is that is not a standalone basis upon
which an urgent relief can be granted and those judgments that he referred to.
Mr Mkhize: Yes.
Court: It was in that context that he mentioned the factual dispute he said ...’
[46] From the above, it is surely quite clear that it was the understanding of both
Prior AJ and the Church’s counsel that what was being argued was only the
29
issue of urgency and the urgent relief under part A. Where it came to
addressing the facts on the merits, that was only done in the context of this
urgent relief sought. A final determination under part B was simply not on the
cards.
[47] I must make it clear that what I am compelled to say next I do not say in the
context of pronouncing on the merits of the Churc h’s petition for leave to
appeal as if I am deciding whether such petition has substance. That is simply
not my place to do. In circumstances where a Court is called upon to decide
prospects of success in section 18(3) proceedings, on the basis I have
discussed earlier, such a decision is not the same as considering prospects of
success in deciding whether or not to actually grant leave to appeal. Or in
other words, the issue of prospects of success in the context of a section
18(3) application is unrelated to actually deciding prospects of success for the
purposes of granting or refusing leave to appeal , or an appeal . Prospects of
success in a section 18(3) application inform exceptional circumstances in
that process, and not the merits of the matter on appeal which is a separate
process.
[48] The Church complains that what it thought it was facing and had to answer
was whether the matter was in the first place urgent, which it strenuously
opposed, and second whether the applicant would be entitled to the interim
relief she sought concerning the continued payment of her salary . It never
believed nor considered that it would be facing final declaratory and directory
relief, and cer tainly not final pronouncement on the Church’s internal edicts
and policies. I am unfortunately compelled to agree that what happened in the
hearing on 6 March 2026, particularly considering what is quoted above, lends
substance to the Church’s complaints. In short, it was informed of the case it
was required to meet, by way of the notice of motion and founding affidavit, as
was required to meet, by way of the notice of motion and founding affidavit, as
being interim relief on an urgent basis for the maintaining of the applicant’s
salary until the contract dipsute was decided. That is the case that was
argued before P rior AJ. But that is not what the Church got at the back end.
Instead, it got a final pronouncement on all the issues raised in the applicant’s
30
notice of motion, including part B, and more, in the form of pronouncement on
its edicts and policies.
[49] In Fischer and Another v Ramahlele and Others 45 the Court dealt with the
appropriate manner of conducting litigation in our Court s, and decided the
following:
‘Turning then to the nature of civil litigation in our adversarial system, it is for
the parties, either in the pleadings or affidavits (which serve the function of
both pleadings and evidence), to set out and define the nature of their dispute,
and it is for the court to adjudicate upon those issues. That is so even where
the dispute involves an issue pertaining to the basic human rights guaranteed
by our Constitution, for '(i)t is impermissible for a party to rely on a
constitutional complaint that was not pleaded'. There are cases where the
parties may expand those issues by the way in which they conduct the
proceedings. There may also be instances where the court may mero motu
raise a question of law that emerges fully from the evidence and is necessary
for the decision of the case. That is subject to the proviso that no prejudice will
be caused to any party by its being decided. Beyond that it is for the parties to
identify the dispute and for the court to determine that dispute and that dispute
alone.
It is not for the court to raise new issues not traversed in the pleadings or
affidavits, however interesting or important they may seem to it, and to insist
that the parties deal with them. The parties may have their own reasons for
not raising those issues. A court may sometimes suggest a line of argument
or an approach to a case that has not previously occurred to the
parties. However, it is then for the parties to determine whether they wish to
adopt the new point. They may choose not to do so because of its
implications for the further conduct of the proceedings, such as an
adjournment or the need to amend pleadings or call additional evidence. They
adjournment or the need to amend pleadings or call additional evidence. They
may feel that their case is sufficiently strong as it stands to require no
supplementation. They may simply wish the issues already identified to be
45 2014 (4) SA 614 (SCA) at paras 13 – 15. See also Public Protector v South African Reserve
Bank 2019 (6) SA 253 (CC) at para 234; Minister of Police v AmaBhungane Centre for Investigative
Journalism NPC 2021 (3) SA 246 (CC) at para 58.
31
determined because they are relevant to future matters and the relationship
between the parties. That is for them to decide and not the court. If they wish
to stand by the issues they have formulated, the court may not raise new ones
or compel them to deal with matters other than those they have formulated in
the pleadings or affidavits.
This last point is of great importance because it calls for judicial restraint. As
already mentioned Gamble J 'required' the parties to argue as a preliminary
issue what he described as two issues of legality. Although he added that the
parties were amenable to these proposals, counsel who appeared in this court
and in the court below confirmed that the judge's own description, that he
'required' the points to be argued, was accurate. They were not asked for their
submissions on whether this was an appropriate approach to the matter, or
even (which was more pertinent) whether either question was in issue in the
case. Nor were they asked whether their clients agreed to broaden the issues
to encompass these points. The authority on which the judge relied in
adopting this approach was not in point. That was a case where the court, on
the application of one of the parties , held that it could dispense with the
hearing of oral evidence, notwithstanding the case having been referred for
the hearing of such evidence, because the questions raised on the papers
could be determined without hearing such evidence and the evidence could
not affect the resolution of those issues. It is a far cry from that for a court to
raise issues that do not emerge from the papers and have not been
canvassed in the affidavits and require that those be argued instead of
hearing oral evidence and deciding the issues raised by the parties.
’
[50] It is also apposite to refer to the following dictum in Four Wheel Drive
Accessory Distributors CC v Rattan NO:46
‘In my view, a fundamental reason for maintaining the adversarial system in
‘In my view, a fundamental reason for maintaining the adversarial system in
which the parties identify the dispute, is to ensure that judicial officers remain
independent and impartial and are seen to be so. This is a cornerstone of any
fair and just legal system. When a judge intervenes in a case and has
recourse to issues falling outside the pleadings which are unnecessary for the
46 2019 (3) SA 451 (SCA) at para 23.
32
decision of the case and departs from the rule of party presentation, there is a
risk that such intervention could create an apprehension of bias. The court
could then be seen to be intervening on behalf of one of the parties, which
would imperil its impartiality.’
[51] Applying the aforesaid in casu, the failures , with the utmost of respect, are
apparent. It is not a case of Prior AJ deci ding to consider pure questions of
law. The granting of final declaratory relief in this case is not just a question of
law, but actually involves crucial factual determinations. I believe that the
Church was never informed that such factual determinations would be made
in the context of the Court granting final relief under part B, and certainly was
not asked to address it. In fact, a proper conspectus of the transcript of the
proceedings on 6 March 2026 shows the opposite. In any event, the founding
affidavit does not seek to make out such a case , and is clearly designed and
populated to serve as basis for interim relief. In fact, to grant final relief where
interim relief was asked for is unfair in itself , especially where the Church
made it clear that it was only answering such interim relief sought . The
Church was also at pains to indicate to Prior AJ that it was not appropriate to
decide Church policy and declaratory relief at stake in this matter in the urgent
application, and it was not able to properly present its case in this regard in
such urgent motion proceedings. There can be little doubt that the C hurch
would be materially prejudiced should the issue of final relief in this respect
nonetheless be considered, and then then granted. Prior AJ decided the
matter as he did, on the basis that he had the proper opportunity to consider
the facts contained in all the pleadings, despite what he had said in the
hearing on 6 March 2026. The learned Judge never decided the matter on the
basis of the requirements for interim relief, which was the case before him and
basis of the requirements for interim relief, which was the case before him and
what he needed to decide. All of this is exactly what the Court in Fischer
supra said should not happen, and the following dictum from such judgment is
apposite:47
47 Id at para 16.
33
‘... The parties found themselves in a situation where they felt obliged to
argue matters that formed no part of the case. That may easily arise because
of the relative positions of judge and counsel or litigant. The latter may feel
obliged to adopt the course indicated in order to avoid displeasing the judge
and possibly without adequate reflection on the implications of what they are
being told to do. For that reason judges must always exercise extreme caution
before suggesting that parties depart from the course that they have chosen.
That is particularly so in urgent matters where there is not always sufficient
time to think through the implications of the issues raised by the judge.
Gamble J obviously felt that counsel (and their clients) had acquiesced in the
course he suggested, but acquiescence is not consent, and what was
required was a clear and unequivocal change in the entire approach to the
case by the counter -applicants, to which the City and Mrs Fischer needed to
respond. That did not occur. ...’
[52] In the judgment relating to leave to appeal, Prior AJ said that the parties did
argue the merits of the case , albeit not as complete as they would like. But
this, with respect, appears to fly in the face of the learned Judge’s own views
expressed in the hearing on 6 March 2026, which indicate that the learned
Judge understood that the merits were only addressed in the context of the
urgent interim relief. The transcript of 6 March 2026 indeed shows that merits
were argued, but it is indeed clear that this was only done in the context of
satisfying the requirements for interim relief. As referred to earlier, in order for
the applicant to obtain the interim relief of the continued payment of her
salary, she must illustrate a prima right to the relief sought. Arguing a case on
that basis simply cannot mean that the Court, simply because the issue of the
right is addressed, could decide to grant final relief. It is one thing to establish
right is addressed, could decide to grant final relief. It is one thing to establish
a prima facie right even open to some doubt , where definitive and final proof
of the right is not required. 48 It is an entirely something else to make out a
case of a clear right for final relief , where the right must be finally proven. 49
48 As explained in Shimansky v Forman 2014 JDR 2447 (GJ) at para 17, in the case of a prima facie
right: ‘… this court must form a view on the relative strengths and weaknesses of the applicants' case
but without binding the court at the main trial in relation to the validity of the design’.
49 In Department of Economic Development and Environmental Affairs v Boyana and A nother 2024
JDR 1674 (ECM) at para 59, it was explained: ‘The meaning of ‘clear right’ in relation to an application
for a final interdict relates to the degree of proof required to establish the right. This, in turn, entails the
34
This is exacerbated by the fact that it is simply not appropriate to finally decide
declaratory relief in urgent application proceedings.
[53] Further, it was simply not necessary for Prior AJ to make a final determination
on whether the applicant would be entitled to final declaratory relief as asked
for in part B, in order for the applicant to succeed in obtaining interim relief of
the payment of her salary under part A . Making the unsolicited final order on
the basis that the facts in the pleadings made out a case for it and the
interests of justice demanded such an order, was thus irregular, per se. In De
Nysschen v Government Employees Pension Fund and others 50 the Court
said:
‘The court erred in granting the further, unsolicited order for payment against
the appellant. Apart from the fact that no such order had been sought by the
Department, the issue of the (re)payment of the pension benefit was not
necessary for determination of the mandatory interdict. Both this court and the
Constitutional Court have repeatedly expressed the principle that the dispute
between parties is defined in the pleadings before court. Courts may, on their
own accord raise issues of law that emerge fully from the record where
consideration of those issues is necessary for the decision of the case. In this
case, the foundation for the relief sought by the appellant was the
Department’s refusal to submit her exit documents to the GEPF. The
Department’s defence was that, its refusal to submit the documents was
justified given the appellant’s obligation to pay to it the pension benefit paid to
her. The issue fell to be determined solely on the pleadings and evidence
rather than on the interests of justice basis advanced by the high court.’
[54] An apposite example can be found Nederduitsch Hervormde Kerk v Die Wilge
Hervormde Gemeente and O thers 51 which ironically also concerned
declaratory relief relating to a church’s policy. The Court identified the di spute
declaratory relief relating to a church’s policy. The Court identified the di spute
as being declaratory relief relating to whether new congregations had the
existence of a right as a matter of substantive law, which means that the right must be one that is
recognized by law. The right asserted must, furthermore, be clearly established by the evidence …’.
See also Port St Johns Taxi Owners Association v MEC for Transport, Safety and Liaison Eastern
Cape and Others 2025 JDR 2243 (ECM) at para 11.
50 2023 JDR 4267 (SCA) at para 17.
51 2024 JDR 4175 (SCA).
35
authority under the governing documents of that church to alienate certain
properties to new owners. This was an issue distinct and separate from a
determination concerning whether contracts of donation were valid, which was
also at stake in this case in another part of the proceedings in the ordinary
course. However, the Court a quo had proceeded to decide the matter on the
issue of the validity of the contracts of donation. The Court a quo held that it
was entitled to raise and consider that issue, based on what was before it.
The SCA concluded:52
‘I conclude that, contrary to the high court’s view that it had acted within the
bounds of Fischer, it clearly acted outside of them. It did not simply raise a
new ‘issue’ or ‘approach’. It raised an entirely new question of law not in issue
in the pleadings. Counsel for the respondents had attempted to make this
clear to the high court when the matter was heard. However, as I noted
earlier, his submissions were rejected. In this respect, too, the high court
failed to heed the caution for judicial restraint expressed in Fischer, and
instead directed the parties to deal with an issue that was not pleaded. This
was clearly to the prejudice of the NHKA, which was denied its right, as a
cited defendant, to properly oppose the relief sought by the respondents …
’
[55] A further example is the judgment In Makhado Local Municipality v Makhavhu
and Another (Appeal) 53, which concerned a case where the appellant in that
matter complained that the Court a quo erred in granting orders that were
neither sought in the notice of motion nor canvassed in the founding papers or
at the hearing of the application. This is obviously the same as the complaint
of the Church in casu. The Court decided as follows:54
‘It is trite that an Applicant must stand or fall by his papers. Facts relevant to
the relief sought must be set out simply, clearly and in chronological sequence
in the affidavits which support the notice of motion.
in the affidavits which support the notice of motion.
52 Id at para 27. Also compare A Penglides (Pty) Ltd and Another v Minister of Agriculture, Forestry
and Fisheries and Another 2022 (5) SA 401 (SCA) at para 18.
53 2026 JDR 0204 (LP).
54 Id at paras 11 – 13.
36
In the present matter, the court a quo clearly deviated from the relief sought
by the Respondents in their notice of motion. The court a quo further failed to
invite the parties to comment or address the court or make submissions
before making such orders that were completely outside the case the
Respondents pleaded in their founding affidavit.
By making the orders, although the orders might have been practical under
the circumstances and might have resulted in a more speedily finalization of
the matter, impermissibly ventured and extended the relief beyond the
Respondents case.
’
[56] A last appropriate example to refer to is Tau v Mashaba and Others 55. In that
case, an applicant sought relief to the effect that pending the institution of an
action for defamation and damages, the respondents be interdicted from
repeating such and/or similar remarks concerning the applicant in future. But
despite this, and when the matter came before the Court a quo, the Judge
granted a final order which declared that the statement made by the
respondent was defamatory of the applicant , and finally interdicted the
respondent from repeating the statement, or statements to the same effect.
The SCA commented as follows in respect of this relief granted by the Court a
quo:56
‘The founding affidavit makes it clear that the dispute between the parties was
whether the respondent was entitled to a retraction and apology; and an
interdict to prevent the appellant from repeating the initial statements
'between the granting of the interim order and the finalisation of the action'.
That is also how the appellant understood the case he was called upon to
meet. Both parties had approached the application on the basis that the trial
court would decide whether the appellant was liable for damages for
defamation. The papers show that the appellant's defences were fair
comment, truth and public benefit and 'political commentary'. The order
comment, truth and public benefit and 'political commentary'. The order
declaring that the initial statements were defamatory of the respondent
effectively precludes the appellant from exercising his right to adduce
55 2020 (5) SA 135 (SCA).
56 Id at paras 20 – 21.
37
evidence in defence of a claim for defamation. That, in turn, adversely impacts
upon his fundamental right to have a dispute decided in a fair public hearing,
enshrined in s 34 of the Constitution.
Had the High Court determined the dispute before it as defined by the parties,
it ought to have decided whether the respondent had met the requirements for
the grant of an interim interdict. These are: a prima facie right; a well -
grounded apprehension of irreparable harm if the relief is not granted; that the
balance of convenience favours the granting of an interim interdict; and the
absence of another satisfactory remedy. An interim interdict pending an action
is an extraordinary remedy within the discretion of the court. ...’
[57] Based on all the aforesaid grounds, I believe t his is a case where the
prospects of success on appeal, considering the specific appeal grounds
raised by the Church, establish exceptional circumstances that would actually
justify not enforcing the order of 24 March 2026. I believe that the Church has
not received a fair hearing. It came to Court to fight a case about whether the
applicant should be paid whilst her breach of contract dispute is to be decided
in the ordinary course. What it got at the back end was a final decision on the
entire merits of the breach of contract di spute, together with adverse findings
on church policy, which it did not have an opportunity to answer in an urgent
Court. This is just not right, and certainly not fair. It infringes the Chur ch’s
rights under section 34 of the Constitution. The LAC is likely to intervene. In
De Beer NO v North- Central Local Council and South- Central Local Council
and Others (Umhlatuzana Civic Association intervening) 57 the Court had the
following to say:
'This s 34 fair hearing right affirms the rule of law, which is a founding value of
our Constitution. The right to a fair hearing before a court lies at the heart of
our Constitution. The right to a fair hearing before a court lies at the heart of
the rule of law. A fair hearing before a court as a prerequisite to an order
being made against anyone is fundamental to a just and credible legal order.
Courts in our country are obliged to ensure that the proceedings before them
are always fair. Since procedures that would render the hearing unfair are
57 2002 (1) SA 429 (CC) at para 11.
38
inconsistent with the Constitution courts must interpret legislation and Rules of
Court, where it is reasonably possible to do so, in a way that would render the
proceedings fair. It is a crucial aspect of the rule of law that court orders
should not be made without affording the other side a reasonable opportunity
to state their case.'
[58] And on this same basis, the Court in CCI SA (Umhlanga) (Pty) Ltd and
Others v Mobile Telephone Networks (Pty) Ltd and Others 58 decided as
follows, in refusing relief under section 18(3):
‘Prospects of success are to be considered as a factor in deciding whether or
not to grant the exceptional remedy of execution of a judgment pending
appeal. In my view, considering what I alluded to above, it is highly likely that
leave to appeal will be granted in due course and that the LAC will reach a
different finding on appeal.’
[59] In summary, it is my view that it would be manifestly unjust to require the
Church to comply with the order of 24 March 2026 in the interim, pending its
appeal, where the order was obtained under the circumstances it was
obtained in casu. This Court must always guard against such injustices and
should refrain from granting relief that will only further compound a failure of
justice. Even if the irreparable harm considerations are decided in favour of
the applicant (and they should not for the reasons set out below), this Court
still retains jurisdiction to refuse to grant relief under section 18(3) for the
reasons elaborated on above. As held in Marima and Another v Makofane
and Another59:
‘The full bench in Justice Alliance, Binns -Ward J (Fortuin and Boqwana JJ
concurring), viewed the provision differently. That court considered prospects
of success on appeal to remain a relevant factor in granting relief. I
understand Binns -Ward J, to say that prospects of success forms part of a
residual discretion sourced in the common law meaning that, even if the
residual discretion sourced in the common law meaning that, even if the
requirements of irreparable harm and exceptionality are satisfied, a court
58 (2023) 44 ILJ 1055 (LC) at para 45.
59 2025 JDR 4600 (GJ) at para 33.
39
retains a general wide discretion to grant or refuse leave to execute and to
determine conditions upon which the right to execute should be exercised.’
[60] In fact, this situation is tied in with the issue of irreparable harm to the Church.
It certainly cannot be gainsaid that the Church will suffer irreparable harm
where it is expected to comply with an order that is, for the w ant of a better
description, improperly obtained, and the only way to remedy this anomaly is
by way of an appeal. This unduly undermines the right to appeal and the
purpose of the appeal, in this case. The fact is that a final decision on whethe r
the applicant is a permanent employee of the Church, whether she was
unlawfully / invalidly removed from her position as CFO, and whether she
should be reinstated in that position, is entirely inappropriate in urgent
proceedings such as the one in casu. It is clear to me that the Church never
ventilated these issues in detail, because it justifiably believed it did not need
to. Making a final decision under these circumstances would deprive of a right
to a fair hearing. It cannot be permitted that this unfairness be compounded
by interim enforcement.
[61] Under the topic of prospects of success, final comments must be made. The
applicant has devoted some attention to illustrating why the Church’s decision
to remove (or dismiss) her fro m her position of CFO if fundamentally flawed
and in breach of her contract of employment. She also points out that the
conduct of the Church in relying on the disentanglement policy in conducting
this termination is discriminatory, in violation of local law, and in any event, it
has been inconsistently applied. She finally states that with her husband
having resigned from the Church, there was no longer any need to apply this
policy to her where it comes to her post as CFO. The Church has set out its
own views in answer to this, which contradicts what t he applicant has said. I
own views in answer to this, which contradicts what t he applicant has said. I
do however not intend to set out the Church’s views, as it is not necessary.
But in a nut shell, the case on the merits does not concern any egregious
violation, because, with all peripherals stripped away, the Church says that its
polices and the applicant ’s terms of employment tied thereto, entitled it to
remove the applicant from her position of CFO, whilst the applicant says that
the Church’s conduct in doing so was unlawful, unfair and discriminatory for
40
the reasons given. The simple fact is that t hese are issues on the substantive
merits, and an appeal Court should and would decide this when deciding the
merits of the appeal. This being the case, and for the reasons as st out above,
I do not consider any of this to be relevant in deciding the application under
section 18(3). There is nothing egregious or patent ly obvious in any of these
issues which may serve to convince me of an appeal outcome that is highly
likely in order to establish exceptional circumstances . But the issue of
prospects of success where it comes to the Church’s right to fair hearing is
different. For the reasons set out above, that case is obvious and egregious,
and it does not require any decision on the substantive merits of the case.
The following dictum in Neumann v Western Cape Education Department 60
illustrates the point:
‘Regarding the prospects of success in the respondent’s appeal, this court is
not required to re-evaluate its earlier decision. It is enough to note that this
case did not involve the kind of serious procedural irregularities or blatant
legal breaches seen in Letsholonyane v Minister of Human Settlements &
another, where the employer summarily dismissed the employee in direct
violation of contractual and statutory requirements. In that matter, this court,
per Tlholhlalemaje J, found that suspension during appeal would have
prolonged an unlawful situation and effectively perpetuated an illegality. The
employee in Letsholonyane had limited prospects of finding employment at
her age — about two years before retirement — which meant she would be
left with no income for the appeal period and that protracted appeals could
extend beyond her retirement, rendering reinstatement meaningless. In
contrast, the applicant was found guilty of a charge of insolence by this court,
his dismissal was not in flagrant breach of contractual or statutory
requirements, and there is no bad faith established on the part of the
requirements, and there is no bad faith established on the part of the
respondent. This case, therefore, does not present the type of circumstances
that would justify treating the judgment as immediately enforceable pending
appeal.’
60 (2026) 47 ILJ 1363 (LC) at para 21.
41
[62] I now turn to the issue of irreparable harm per se, starting with the applicant.
According to her, the irreparable harm that she will suffer if the order of 24
March 2026 is not enforced in the interim , pending t he appeal, is based on
several considerations. First, she states that her occupation is in the financial
industry, and it is a convention in that industry that any person that is appointed
or to be appointed in this industry must have their credit records in order, and
failing to pay her the salary due to her ‘will inevitably result in her obtaining an
adverse credit record’, which would render her unemployable in the industry as
her only career. She further contends that she also stands to lose her assets,
her career and her dignity. She stated that she is unable to afford basic
necessities such as food, clothing and medical costs, especially considering
her medical aid has been terminated. She complains that the conduct of the
Church infringes on her right to work . She points out that her husband had an
accident recently which was quite serious and which needed surgery but they
could not afford private health care as a result of her medical aid being
terminated by the Church, and they were forced to seek medical help in the
public hospitals with all its challenges . Finally, s he stats that her husband
resigned and is now left without an income, leaving her as the only
breadwinner.
[63] What is apparent from the aforesaid is that the basis for the applicant’s
contention of irreparable harm is founded squarely on nothing else but
financial considerations. She does not tender her services. Even taking what
she has said as it stands, this is not irreparable harm as contemplated by
section 18(3). The applicant is no different from the thousands of employees
that lost their jobs or salaries and are litigating to undo their pr edicament.
Properly considered, and no matter what the cause of action may be and how
Properly considered, and no matter what the cause of action may be and how
the applicant classifies it, what she is asking for is the restoration of the status
quo ante prior to the termination of her appointment as CFO. This is exactly
the same as a dismissed employee asking for reinstatement. And there is
nothing in this that establishes irreparable harm that justifies urgent
intervention. Compared to the applicant’s own version, all dismissed
employees lose their salary and benefits (such as medical aid), cannot pay
their bills, are accosted by their credito rs and cannot afford basic amenities.
42
There is nothing unusual or exceptional about it. This was made clear by the
Constitutional Court in Road Traffic Management Corporation v Tasima (Pty)
Ltd61 as follows:
‘In any event, the non-payment of wages or salaries pending finalisation of an
appeal cannot constitute exceptional circumstances for the purposes of s
18(3) without bringing almost every labour matter within the ambit of the
section. It is impossible to find that Tasima's employees' position pending
appeal must be protected, without finding that this must be the case in almost
every labour dispute. Differently put, the exceptional circumstances that s
18(3) requires, ordinarily should not be located purely in the non-payment of
wages or salaries pending appeal.’
[64] In CCI SA supra 62 the Court applied the aforesaid dictum in Tasima as
follows:
‘The Constitutional Court confirmed that the exceptional circumstances
required by s 18(3) should not be located purely in the non- payment of wages
or salaries pending an appeal process. More will be needed to demonstrate
that ‘exceptional circumstances' exist and the reality is that the applicants did
not present any facts, other than financial suffering and distress, to support
their case on the question of exceptional circumstances.
Secondly, as the Constitutional Court held, if the non-payment of wages or
salaries pending finalisation of an appeal were to constitute exceptional
circumstances for the purposes of s 18(3), it would bring almost every labour
matter within the ambit of s 18(3).
’
The Court in Maphalle supra similarly said:63
61 (2020) 41 ILJ 2349 (CC) at para 131.
62 Id at paras 32 – 33.
63 Id at para 31. Also compare Jonker v Wireless Payment Systems CC (2010) 31 ILJ 381 (LC) at
para 16; Democratic Nursing Organisation of SA and Another v Director -General, Department of
Health and Others (2009) 30 ILJ 1845 (LC) at para 19; Northam Platinum (supra) at para 37; De Beer
v Minister of Safety and Security and Another (2013) 34 ILJ 3083 (LAC) at para 32.
43
‘I am unconvinced that any explanation by the applicant concerning her
financial prejudice is compelling or exceptional. None of what the applicant
has set out in her founding affidavit makes the applicant’s case different to the
thousands of other cases where employees have been dismissed, and as a
result, lost their salaries. As harsh as it may sound, the applicant is in exactly
the same position as anyone else who has not received a salary, and there is
no reason why she cannot wait in the queue to obtain an order to secure
payment of that which may be contractually due to her, just like everyone
else. ...’
[65] The applicant’s reliance on her career prospects being compromised is
speculative to say the least. But what I find quite ironic is that the applicant
relies on a demand made for payment by the applicant of a medical account
for her late mother at the Steve Biko Hospital, in the sum of R67 663.00, in
which demand it is stated that if she does not pay, she would be blacklisted.
But what is apparent from this demand, even as quoted by the applicant, is
that this account is long outstanding, even whilst she was ear ning a salary.
Even then, the possible backlisting did not spur her into making payment , and
there was no cause for her not to, as she was earning her salary . I am
convinced that the whole career prospects issue is contrived for the purposes
of this substantiating this application.
[66] Lastly, and should the applicant ultimately be successful and the appeal is
decided in her favour, she will not only get her position back, but she would
have to be paid by the Church all the salary she did not earn in the interim.
That would constitute proper financial redress.64
[67] In sum, I am unconvinced that the applicant will suffer irreparable harm if the
order of 24 March 2026 is not enforced pending the appeal and the petition for
leave to appeal filed by the Church. What is nothing else but purely financial
leave to appeal filed by the Church. What is nothing else but purely financial
considerations raised by the applicant as basis to establish irreparable harm
do not serve to substantiate such. The applicant can ger proper financial
redress in the event that the appeal is decided in her favour. The applicant
64 Compare CCI SA (supra) at para 76.
44
has therefore failed to the satisfy the requirement that she will suffer
irreparable harm, as required under section 18(3).
[68] With the applicant failing to satisfy the requirement of establishing irreparable
harm on her part, there is really no need to consider whether the Church will
not suffer irreparable harm. It is true that in the case of the Church, the harm it
will suffer would be to pay the applicant her salary whilst the dispute is
ongoing, which is in reality also just a financial consideration. The applicant
has not tendered her services, as said above, so at this stage there is no
issue with regard to the prejudice that may be caused by a possibly
compromised trust relationship between the parties. So, and all said, things
appear to equal in the balance where it comes to the notion of irreparable
harm. But what put s this over the top in favour of the Church, is that the
Church will be expected to comply with an obviously improperly obtained
order, which is an injustice. But even considering the notion that both parties
will suffer comparable harm, the end result is that the relief sought by the
applicant must be refused. The Court in Moqhaka Local Municipality supra
held as follows:65
‘This exercise is not akin to a balance of convenience examination where the
respective harm to the parties is weighed up to determine the ‘preponderance
of equities’. The applicant must, as a matter of fact, show that it will suffer
irreparable harm if the suspension order is not granted and that the
respondent will not suffer irreparable harm. Where both parties will suffer
irreparable harm, the court should refuse the application.’
[69] All considered, I am not satisfied that the applicant has made out a proper
case for relief under section 18(3) of the Superior Courts Act. The
consideration of exceptional circumstances in this case work in favour of the
Church. As I have said, to enforce the order of 24 March 2026 at this stage,
Church. As I have said, to enforce the order of 24 March 2026 at this stage,
pending the appeal process, would just compound what is in my view an
existing failure of justice and an infringement of the Church’s right to a fair
hearing. The only way the Church can fix this wrong is by way of an appeal,
65 Id at para 36.
45
and it should not be expected of it to end ure the consequences of the order
whilst taking this remedial action . Further, and on the issue of irreparable
harm, the applicant’s principal basis for alleging such harm is simply financial
considerations flowing only from the fact that she would no longer receive a
salary. It has been made clear that such a consideration does not establish
irreparable harm nor is it anything exceptional. And finally, even if a global
perspective is conducted of harm suffered by both parties, this consideration
would favour the Church. The applicant is thus not entitled to the relief sought
and the application must fail.
Costs
[70] This only leaves the issue of costs. Whilst the applicant ultimately did not
succeed, I do not believe that the applicant acted unreasonably in bringing the
application, and certainly at least had an arguable case . I also consider that
there is obviously still plenty litigation between the parties to follow, and I do
not believe it is fair to mulch any party with a costs order in such ongoing
proceedings. Finally, I am guided by the judgment in Zungu v Premier of the
Province of Kwa-Zulu Natal and Others66 where it comes to the issue of costs
in employment disputes in this Court, making a costs order in this case
inappropriate. Exercising the wide discretion I have in terms of section 162(1)
of the LRA, I believe that this is a case where no costs order would be
appropriate and fair.
[71] In the premises, I make the following order:
Order
1. The application is heard as one of urgency in terms of Rule 38.
66 (2018) 39 ILJ 523 (CC) at para 25. See also Union for Police Security and Corrections Organisation
v SA Custodial Management (Pty) Ltd and Others (2021) 42 ILJ 2371 (CC) at para 35.
46
2. The applicant’s application for relief in terms of section 18(3) of the
Superior Courts Act is dismissed.
3. There is no order as ot costs.
_____________________
SNYMAN AJ
Acting Judge of the Labour Court of South Africa
Appearances:
For the Applicant: Advocate B M Mkhize
Instructed by: Sigama Attorneys
For the Respondents: Advocate S Grobler SC
Instructed by: Hendre Conradie Inc Attorneys