IN THE HIGH COURT OF SOUTH AFRICA
NORTH WEST HIGH COURT MAHIKENG
Not Reportable
Case No: 2409/2025
In the matter between:
TSHENOLO WASTE (PTY) LTD Applicant
and
MEC FOR HEALTH NORTH WEST First Respondent
ULTIMATE WASTE (PTY) LTD Second Respondent
AUDITOR-GENERAL OF SA Third Respondent
MEC FOR TREASURY NORTH WEST Fourth Respondent
PROGRESSIVE PROJECT ADMINISTRATION Fifth Respondent
LIMPOPO SUPPLEMENT TRADERS Sixth Respondent
MAKHATHINI MEDICAL WASTE (PTY) LTD Seventh Respondent
SIYABONGA INDUSTRIAL WASTE Eighth Respondent
SCELO BUSINESS CONSULTANCY Ninth Respondent
PLEASANT MAPHOKA (PTY) LTD Tenth Respondent
VSL GENERAL TRADING (PTY) LTD Eleventh Respondent
MAHLABANA WASTE (PTY) LTD Twelfth Respondent
MASA WASTE MANAGEMENT (PTY) LTD Thirteenth Respondent
PHUTING MEDICAL WASTE CC Fourteenth Respondent
MAMPURU WASTE MANAGEMENT (PTY) LTD Fifteenth Respondent
BUHLE WASTE (PTY) LTD Sixteenth Respondent
KLT MEDICAL AND PROJECTS
JV JIKELA AFRIKA WASTE CARE Seventeenth Respondent
Corum: Tsautse AJ
Heard: 24 July 2026
Delivered: This judgment was handed down electronically by circulation to the parties'
representatives via email. The date and time for the hand-down of the judgment is deemed to
be 16h00 on 28 August 2026.
JUDGMENT
TSAUTSE AJ
INTRODUCTION
[1] This is an urgent application for compliance with an order granted by Morgan AJ
on 29 May 2026 (the Order). The applicant, Tshenolo Waste (Pty) Ltd (Tshenolo),
seeks to compel the first respondent, the MEC for Health North West (the MEC), and
the secon d respondent, Ultimate Waste (Pty) Ltd (Ultimate), to give effect to
paragraphs 4 and 5 of the Order.
[2] The application is opposed by the MEC and Ultimate. They contend, among other
things, that the matter is not urgent and that the operation and execution of the Order
are suspended by applications for leave to appeal. Paragraph 4 is central. It directs
the MEC forthwith to terminate Ultimate's month -to-month contract, to utilise or
contract Tshenolo's services, and to extend Tshenolo's month-to-month contract under
the expired tender pending the commencement and finalisation of a new tender
process, in order to ensure the uninterrupted removal and disposal of healthcare risk
waste.
[3] The immediate question is whether Tshenolo has established a basis for the Court
to exercise its urgent jurisdiction. That enquiry must, however, be considered against
the statutory consequences of the pending applications for leave to appeal and the
constitutional duty to obey court orders.
THE PENDING APPLICATIONS FOR LEAVE TO APPEAL
[4] Both Ultimate and the MEC instituted applications for leave to appeal before the
present application was launched.
[5] Section 18(1)-(3) of the Superior Courts Act 10 of 2013 provides:
'18 Suspension of decision pending appeal
(1) 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 application for leave to appeal or of an appeal, is suspended pending
the decision of the application or appeal.
(2) Subject to subsection (3), unless the court under exceptional circumstances orders
otherwise, the operation and execution of a decision that is an interlocutory order not
having the effect of a final judgment, which is the subject of an application for leave to
appeal or of an appeal, is not suspended pending the decision of the application or
appeal.
(3) A court may only order otherwise as contemplated in subsection (1) or (2), if the
party who applied to the court to order otherwise, in addition proves on a balance of
probabilities that he or she will suffer irreparable harm if the court does not so o rder
and that the other party will not suffer irreparable harm if the court so orders.'
[6] Section 18 is structured around three distinct components. The first is the default
position in subsection (1), namely that a decision is suspended pending the
determination of any appeal. The second is the default position in subsection (2),
namely that a n interlocutory order not having the effect of a final judgment remains
operative notwithstanding the noting of an appeal. The third component is found in
subsection (3), which permits a court to depart from either default position only upon
a finding of exceptional circumstances and the prescribed findings concerning
irreparable harm to the respective parties.
[7] Substance prevails over form when determining the appealability of a judicial
pronouncement. In Zweni v Minister of Law and Order 1993 (1) SA 523 (A) at 532I -
533B, the Appellate Division identified the three traditional hallmarks of an appealable
533B, the Appellate Division identified the three traditional hallmarks of an appealable
order: finality in effect, definitiveness of rights, and the disposal of a substantial portion
of the relief. Although courts now adopt a more holistic, interests-of-justice approach,
the Zweni attributes remain a vital guide in evaluating an order's true effect.
[8] Paragraph 4 of the Morgan AJ order is expressly time -bound, but its practical
consequences are substantial. It terminates Ultimate's existing month -to-month
arrangement and requires the MEC to contract with Tshenolo for the intervening
period. If implemented, the commercial and administrative consequences during that
period may not readily be reversed. Its temporary form does not, without more, answer
the section 18 enquiry.
[9] In Minister of Social Development, Western Cape v Justice Alliance of South Africa
[2016] JOL 35612 (WCC) paras 24 and 39 -42, the Court stressed both the strict
threshold created by section 18(3) and the caution required where immediate
implementation of mandatory relief would change the status quo and intrude into
polycentric executive decision-making. The applicant must establish, on a balance of
probabilities, that it will suffer irreparable harm if execution is withheld and that the
respondent will not suffer irreparable harm if execution is permitted. The equities alone
do not suffice.
[10] Incubeta Holdings (Pty) Ltd v Ellis 2014 (3) SA 189 (GJ) paras 16 and 21 -24
similarly holds that exceptional circumstances are fact-specific and that section 18(3)
requires two distinct findings of fact, rather than a general balancing of convenience.
Execution pending an appeal is a depart ure from the norm and requires particular
judicial sanction.
[11] There is therefore considerable force in the respondents' submission that the
practical effect of paragraph 4 brings it within section 18(1), and that Tshenolo could
secure its execution pending the appeal process only through section 18(3). This
application is not framed as such an application and does not seek an order in the
terms contemplated by subsections (1) and (3).
[12] It is nevertheless unnecessary to decide the classification issue finally. Whether
paragraph 4 was competent, and whether Morgan AJ correctly directed the MEC to
terminate one arrangement and contract with Tshenolo, are issues raised in the
pending applications for leave to appeal. This Court is not sitting as a court of appeal
over the Order.
over the Order.
[13] I accordingly approach the question of urgency on the assumption most
favourable to Tshenolo, namely that paragraph 4 constitutes an interlocutory order
contemplated in section 18(2) and was therefore not automatically suspended pending
appeal. Even on that assumption, Tshenolo bears the burden of establishing urgency
in terms of Uniform Rule 6(12). The fact that an order remains operative is a separate
question from whether urgent relief is warranted to enforce it. These are distinct
enquiries.
[14] That assumption does not diminish the authority of the Order. In Municipal
Manager, O.R. Tambo District Municipality and Another v Ndabeni [2022] ZACC 3;
2023 (4) SA 421 (CC) at paragraphs 23 –25, the Constitutional Court reaffirmed that
under section 165(5) of the Constitution, a judicial order binds all parties to whom it
applies, regardless of whether a party believes it to be a nullity. Litigants cannot usurp
the judicial function by simply disregarding an order; instead, any challenge must be
properly ventilated through an appeal or a review process.
[15] The present conclusion on urgency must therefore not be understood as
permission to disobey the Order. It determines only whether Tshenolo has justified the
exceptional procedural advantages of the urgent roll in this application.
URGENCY
[16] Rule 6(12)(b) requires an applicant to set out explicitly the circumstances
rendering the matter urgent and the reasons why substantial redress cannot be
obtained at a hearing in due course. The explanation must cover the period from the
applicant's awareness of the alleged infringement until the institution of proceedings.
Urgency is assessed in the round, having regard to the degree of departure from the
ordinary rules that the applicant seeks.
[17] Rhweba Butterworth (Pty) Ltd and Another v Mntonga; In re: Rhweba Butterworth
(Pty) Ltd and Another v Mntonga and Others [2022] ZAECMHC 9; [2022] JOL 53031
(ECM) at paragraphs 9 –18 illustrates the point. The degree of relaxation must be
commensurate with the exigencies of the case; an applicant must play open cards and
explain material periods of inaction. The mere invocati on of enforcement does not
excuse an unexplained delay or unfairly truncated time periods.
excuse an unexplained delay or unfairly truncated time periods.
[18] The court in Rhweba likewise recognises at paragraphs 38 –40 that contempt
proceedings are generally urgent because ongoing defiance of a court order
undermines both the effectiveness of judicial remedies and the authority of the courts
themselves. However, the degree of urgency remains fact-specific, and considerations
of fairness retain a controlling role in determining the appropriate procedural course.
[19] The present matter is not a contempt application. It does not seek a declaration
that the respondents are in wilful and mala fide breach of a court order, nor does it
seek coercive or punitive contempt-related relief. Rather, it is framed as an application
to compel performance. Its urgency must therefore be assessed on its own terms and
established in its founding papers. It cannot derive urgency merely from the
proposition that contempt proceedings are ordinarily treated as urgent.
[20] The chronology is telling:
a) 5 June 2026 - The Order was furnished to, or otherwise became available to,
the parties.
b) 8 June 2026 - Tshenolo addressed correspondence to the MEC demanding
compliance.
c) 12 June 2026 - Ultimate filed an application for leave to appeal.
d) 18 June 2026 - Tshenolo again demanded compliance, requiring the issuance
of appointment letters by 19 June 2026 and threatening urgent litigation.
e) 19 June 2026 - Tshenolo's attorney made a single telephone call to the MEC's
State Attorney.
f) 22 June 2026 - The MEC filed an application for leave to appeal.
g) 30 June 2026 - Ultimate's attorneys expressly informed Tshenolo's attorneys
that applications for leave to appeal had been filed.
h) 13 July 2026 - Tshenolo launched the present application, more than five weeks
after the Order had been granted.
[21] This sequence of events sits uneasily with the urgency now asserted. Tshenolo
was aware of the Order from the outset, demanded compliance within days of its grant,
and threatened urgent proceedings on 18 June 2026. By 19 June 2026, it knew that
the MEC had not complied with the deadline it had imposed. By 22 June 2026, the
the MEC had not complied with the deadline it had imposed. By 22 June 2026, the
MEC's position was objectively apparent from its application for leave to appeal, and
by no later than 30 June 2026 Tshenolo had express confirmation that both
respondents were pursuing a ppeal processes. Yet the present application was
instituted only on 13 July 2026, and no satisfactory explanation is advanced for that
delay. In circumstances where urgency is self-created when a litigant fails to act at the
point when the need for relief first arises, this chronology weighs heavily agai nst a
finding that the matter justified a departure from the ordinary rules and timetables of
the Court.
[22] The founding papers do not satisfactorily explain the 24-day period from 19 June
to 13 July 2026. The assertion that it would have been unreasonable to rush to the
urgent Court while the MEC was considering its position is unpersuasive after
Tshenolo itself demanded compliance by 19 June and threatened urgent proceedings.
A litigant alleging continuing prejudice cannot leave a material period unexplained and
then rely on the accumulated consequences of its own inaction.
[23] The correspondence likewise does not demonstrate the promptness expected of
an urgent applicant. After the deadline of 19 June, one telephone call was made. No
adequate account is given of the steps taken thereafter, the reasons papers could not
be prepa red earlier, or the event on 13 July that suddenly made ordinary redress
inadequate.
[24] The correct question is not whether Tshenolo is anxious to secure compliance,
but whether it will be denied substantial redress if the matter follows the ordinary
course. In East Rock Trading 7 (Pty) Ltd and Another v Eagle Valley Granite (Pty) Ltd
and Others [2011] ZAGPJHC 196 at paragraph 6, the court explained that a matter
only qualifies for urgent enrolment where an applicant cannot obtain substantial
redress in due course. Tshenolo has failed to demonstrate why an ordinary
enforcement application —coupled, where appropriate, with the statutory remedies
established under section 18 of the Superior Courts Act 10 of 2013—would afford it no
substantial redress.
[25] The alleged public-health dimension does not cure that omission. The Order itself
[25] The alleged public-health dimension does not cure that omission. The Order itself
was directed at uninterrupted healthcare risk -waste services. On the papers before
this Court, Ultimate remains the incumbent service provider. There is no properly
particularised evidence that healthcare risk waste is presently uncollected, that an
identified facility faces an imminent health hazard, or that the continuation of the
existing service pending an ordinary hearing creates a concrete and immediate
danger.
[26] The applicant's commercial interest in being appointed under paragraph 4 is real,
but commercial prejudice, without a showing that it cannot be substantially remedied
in due course, does not establish urgency. Nor can a general appeal to the public
interest substitute for the facts Rule 6(12)(b) requires.
[27] Tshenolo's characterisation of the matter as a simple application to compel does
not assist it. A binding order must be obeyed, but the authority of the order does not
render every chosen enforcement procedure automatically urgent. Ndabeni
safeguards the binding force of court orders; it does not dispense with the rules
governing urgent enrolment.
[28] I therefore find that Tshenolo has not explained its delay, has not established that
substantial redress is unavailable in due course, and has not justified the degree of
departure from the ordinary rules that it sought. The urgency is, to a material ext ent,
self-created.
[29] This finding is sufficient to dispose of the application. It is unnecessary to
determine finally whether paragraph 4 falls under section 18(1) or section 18(2),
whether a section 18(3) application was indispensable, or whether the relief granted
by Morgan AJ was competent. Nothing in this judgment determines the applications
for leave to appeal or authorises non-compliance with an operative court order.
ULTIMATE'S CONDITIONAL COUNTER-APPLICATION
[30] Ultimate's counter -application is expressly conditional upon a finding that
paragraph 4 is an interlocutory order falling within section 18(2). Since I have made
no final finding on that question and the main application is not properly before the
urgent Court, the condition for adjudicating the counter-application has not arisen.
[31] The counter-application will accordingly not be determined.
COSTS
[32] Costs ordinarily follow the result. Although the application was misconceived as
urgent, the circumstances do not justify punitive costs. The questions concerning
section 18 and the status of paragraph 4 are legally significant, and the applicant was
entitled to seek lawful means of enforcing an order made in its favour.
[33] In Zisiwe v Naude NO and Others [2025] ZANWHC 106 ad paragraphs 29-31 ,
this Division applied the ordinary principle that costs follow the result and awarded
party-and-party costs on Scale B in an interlocutory application. That approach is
equally appropriate in the present matter. Furthermore, the employment of two counsel
by the first and second respondents was entirely reasonable, having regard to the
manifest complexity and importance of the issues traversed.
ORDER
[34] In the result, the following order is made:
1. The application is struck from the urgent roll for want of urgency.
2. Ultimate Waste (Pty) Ltd's conditional counter-application is not determined.
3. The applicant is ordered to pay the costs of the first and second respondents on the
party-and-party scale, Scale B, including the costs of two counsel where so employed.
TSAUTSEAJ
ACTING JUDGE OF THE HIGH COURT
Appearances:
For the Applicant: Adv Kennedy Tsatsawane SC
Adv Kgomotso Kabinde
For the First Respondent: Adv L. Montsho-Moloisane SC
Adv G I Mothibi
For the Fourth Respondent: Adv L J Morison
Adv A Laher