REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
Case Number: 2025/070141
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: YES
04/09/2026
DATE SIGNATURE
In the matter between:
CITY OF JOHANNESBURG METROPOLITAN
MUNICIPALITY TSHEPO MAKOLA N.O.
and
INDEPENDENT SCHOOLS ASSOCIATION OF
SOUTHERN AFRICA NPC
TRUSTEES FOR THE TIME BEING OF THE
SLOVO PARK EDUCATIONAL TRUST
SALVAZIONE CHRISTIAN SCHOOL NPC
1
First Appellant
Second Appellant
First Respondent
Second Respondent
Third Respondent
ROEDEAN SCHOOL SOUTH AFRICA NPC
MINISTER OF CO-OPERATIVE GOVERNANCE
AND TRADITIONAL AFFAIRS
MEMBER OF THE EXECUTIVE COUNCIL FOR
CO- OPERATIVE GOVERNANCE AND
TRADITIONAL AFFAIRS, GAUTENG PROVINCE
MEMBER OF THE EXECUTIVE COUNCIL
FOR EDUCATION, GAUTENG PROVINCE
MINISTER OF FINANCE
TRUSTEES FOR THE TIME BEING OF
THE SPARROW SCHOOLS EDUCATIONAL TRUST
BELLAVISTA SCHOOL NPC
CITYKIDZ PRE AND PRIMARY SCHOOL NPC
JUDGMENT
Fourth Respondent
Fifth Respondent
Sixth Respondent
Seventh Respondent
Eighth Respondent
Ninth Respondent
Tenth Respondent
Eleventh Respondent
DU PLESSIS J and NDLOKOVANE AJ (MAHOSI J concurring)
Introduction
[1] This is an opposed full court appeal in which the first and second appellants note
an automatic appeal under section 18(4 )(a)(ii) of the Superior Courts Act1 (Act),
against the whole of Mudau J's judgment in terms of section 18(3) of the Act, that
directed that a prior review concerning the first appellant's four-year phasing-in
of the "business and commercial " tariff on independent schools should remain
operative pending the outcome of all present and future appeals. The review
itself is not before us for reconsideration . What is before us is to decide whether
the court a quo was entitled to lift the usual suspension of its order by finding, on
1 10 of 2013.
2
the record before it, that exceptional circumstances existed, that independent
schools and the learners would suffer irreparable harm if execution were refused,
and that the first appellant would not suffer irreparable harm if the execution were
granted.
[2] The appeal thus only concerns the section 18(3) order permitting execution of
the underlying review order pending the first appellant's appeal to the Supreme
Court of Appeal (the main appeal). The first appellant contends that the court a
quo erred both in law and fact in granting execution pending appeal and in
granting extensive additional relief beyond the scope of section 18.
[3] The principal grounds that the first appellant relies on are:
(a) That paragraphs 9 and 11 of the order are incompetent because they purport
to prevent the automatic suspension of an order pending a section 18(4)
appeal, contrary to the Act and binding authority. The first appellant also
submits that ISASA failed to establish:
i. exceptional circumstances;
ii. irreparable harm if execution were refused; and
iii. absence of irreparable harm to the first appellant if execution were
granted.
(b) That the court misapplied the legal test, relied on historical rather than
prospective harm, overlooked the first appellant's undertakings and the
urgency of the appeal, reversed the statutory onus regarding harm to the first
appellant, and failed to properly consider the financial and administrative
prejudice to the municipality.
(c) That the court improperly resolved material factual disputes on motion
proceedings, contrary to the Plascon-Evans rule, and made findings of
contempt-like conduct, bad faith and constitutional breach without the
procedural safeguards applicable to contempt proceedings or referral to oral
evidence.
3
(d} That insufficient weight was given to the fact that the Supreme Court of
Appeal had already granted leave to appeal in the main matter,
demonstrating that the issues are reasonably arguable. It argues that
execution pending appeal effectively pre-empts the outcome of that appeal
and renders aspects of it nugatory.
(e) That the court incorrectly interpreted the April 2025 review order as governing
subsequent financial years from 2024/25 to 2026/2. It argues that, properly
construed, the order applied only to the 2023/24 Rates Policy and did not
prescribe tariffs for later years.
(f) That the condonation granted for ISASA's replying affidavit, submitted
approximately nine months late, and that the court improperly relied on
extensive new matter introduced in reply, including evidence concerning
schools not party to the proceedings.
(g) That the punitive attorney-and-client costs order was unjustified because the
findings of contemptuous conduct were unsustainable, the opposition raised
substantial legal issues, and the first appellant was exercising a bona fide
statutory right of appeal.
Relief sought
[4] Based on the above, the first appellant seeks an order upholding the appeal,
setting aside the section 18 order of 6 July 2026 and substituting it with an order
dismissing the application with costs. Alternatively, it seeks to set aside
paragraphs 3 to 12 of the order and a declaration confirming that the operation
and execution of the underlying review order of 8 April 2025 remain suspended
under section 18(1) pending determination of the main appeal.
Parties
[5] The first appellant is the City of Johannesburg Metropolitan Municipality (the
City), a metropolitan municipality established In terms of the Constitution and the
applicable local government legislation. The second appellant is Tshepo Makola,
4
cited in his official capacity as the Acting Municipal Manager of the City. Unless
the context indicates otherwise, we refer to the appellants collectively as 'the
City', and where it is necessary to distinguish between them, we refer to each
separately as cited.
[6] The first Respondent is the Independent Schools Association of Southern Africa
NPC (ISASA), a non-profit company representing independent schools in the
Southern African region. ISASA is the oldest and largest association of
independent schools in Southern Africa. It has more than 900 member schools
across South Africa, Botswana, Eswatini, Namibia, Angola, Lesotho ,
Mozambique, Mauritius and Zambia, of which approximately 847 are situated in
South Africa.
[7] The second Respondent is the Trustees for the Time Being of the Slovo Park
Educational Trust (Slovo Park Trustees).
(8] The Third Respondent is Salvazione Christian School (Salvazione Christian
School), a non-profit independent school situated in the Slovo Park informal
settlement, serving approximately 202 learners from predominantly low-income
households.
(9] The Fourth Respondent is Roedean School (Roedean School), a non-profit
independent school.
(1 0] For convenience, WErefer to the first to fourth respondents collectively as
'ISASA', except where it is necessary to distinguish between the individual
respondents.
(11] The appeal is opposed by the first to fourth respondents. The fifth respondent
has filed a notice to abide by the decision of the court.
Relevant background
(12] The background to this appeal is largely common cause.
5
[13] On 8 April 2025, Mudau J delivered judgment in the consolidated review
proceedings under case numbers 95869/2023, 133361 /2023, 120464/2023 and
128616/2023 (the review order). In that judgment, the court declared unlawful
and set aside the City's 2023/2024 Municipal Property Rates Policy and By-Law
insofar as they re-categorised privately owned educational properties as
"business and commercial" and phased in the associated tariff over the
2023/2024 to 2026/2027 financial years. It held that the City failed to conduct a
lawful public participation process and had not properly considered the best
interest of learners and their basic education when adopting that scheme, and it
directed the City to instead levy rates on private educational properties at the
level of the former education category, adjusted by specific annual increases,
pending the adoption of a new, lawful policy. On 5 May 2025, the City lodged an
application for leave to appeal. In consequence, the operation and execution of
the review order was automatically suspended in terms of section 18(1 ), read
with section 18(5), of the Act.
[14] On 6 May 2025, the electricity supply to Salvazione Christian School was
disconnected. At that stage, the review order had been in full operation since 8
April 2025 and had not yet been suspended by the City's application for leave to
appeal. The supply was restored on 16 May 2025, following the City's written
undertaking that no further disconnection would occur by reason of the non
payment of rates in respect of a property affected by the review order.
[15] On 20 May 2025, ISASA launched an application in terms of section 18(3) of the
Act, seeking an order that the April 2025 review order should continue to operate
and be executed pending the determination of the appeal. The City delivered its
answering affidavit on 13 June 2025. Leave to appeal against the review order
was refused by the High Court on 24 June 2025, whereafter the City petitioned
was refused by the High Court on 24 June 2025, whereafter the City petitioned
the Supreme Court of Appeal on 24 July 2025. On 24 November 2025, the
Supreme Court of Appeal granted the City leave to appeal.
[16] ISASA's replying affidavit was delivered on 20 March 2026, approximately nine
months out of time. On 29 May 2026, the City launched an application to strike
6
out portions of the replying affidavit on the basis that it introduced extensive new
matter and evidence concerning schools not cited as parties. The section 18
application was heard on 19 June 2026.
[17] On 6 July 2026, Mudau J delivered judgment and granted the order which is the
subject of the present appeal.
[18] The order comprised twelve operative paragraphs. In summary, the learned
Judge:
(a) granted condonation for the late filing of the replying affidavit;
(b) dismissed the City's strike-out application;
(c) declared that the City had failed to comply with the review order between
8 April and 5 May 2025 and had thereby acted in breach of section 165
of the Constitution;
(d) directed the Acting Municipal Manager to ensure compliance with the
review order in relation to the 2026/27 Rates Policy and By-law and to
report to the court within 21 days;
(e) suspended the operation of the 2026/27 Rates Policy and By-law,
insofar as they relate to privately owned educational properties, pending
such compliance;
(f) directed that the electricity supply to Salvazione Christian School be
restored without charge;
(g) ordered that paragraphs 1 to 5 of the review order would not be
suspended by any present or future application for leave to appeal or
appeal and would remain operative pending the final determination of
all such proceedings;
(h) granted a further interdict restraining the City from implementing credit
control measures to recover rates in excess of the education tariff,
subject to specified annual adjustments; and
(i) ordered the City to pay the costs of the application on the attorney-and
client scale, including the costs of two counsel.
7
[19] The learned Judge furnished reasons simultaneously with the order, as
contemplated in section 18(4)(a)(i) of the Act. On the same day, 6 July 2026, the
City noted an automatic appeal in terms of section 18(4 )(a)(ii) of the Act against
the whole of the judgment and order, alternatively against paragraphs 3 to 12
thereof. The appeal lies as of right to the full court of this division, being the "next
highest court" contemplated in section 18(4)(b)(i) of the Act, the order having
been granted by a single judge. By operation of section 18(4)(a)(iv) of the Act,
the execution order granted under section 18(3) was automatically suspended
upon the noting of the appeal. Pending its determination. Section 18(4 )(a)(iii)
further requires that such an appeal be dealt with "as a matter of extreme
urgency". It is that appeal which now serves before this court.
Issues for determination
[20] The issues that arise for determination are whether the court a quo correctly
exercised the powers conferred by section 18(3) of the Superior Courts Act. More
particularly, this court must determine:
(a) Whether the court a quo correctly found that the respondents
established the three jurisdictional requirements for relief under section
18(3), namely:
i. exceptional circumstances.
ii. that they would suffer irreparable harm if the order were not put
into operation pending appeal; and
iii. that the City would not suffer irreparable harm if execution were
permitted.
(b) Whether the court a quo exceeded the scope of its powers under section
18 by granting relief that went beyond authorising the interim execution
of the order under appeal, including the declaratory relief, supervisory
orders, suspension of the 2026/27 Rates Policy and by-law, the credit
control interdict, and the costs order.
8
(c) Whether paragraphs 9 and 11 of the order are legally competent, having
regard to section 18(4 )(a)(iv), which provides that a section 18 execution
order is automatically suspended upon the noting of an appeal.
(d) Whether the court a quo misdirected itself in resolving disputed factual
issues on the papers, making findings of contemptuous or
unconstitutional conduct, and relying on evidence introduced in reply.
(e) Whether the court a quo failed to take proper account of the pending
appeal before the Supreme Court of Appeal and the effect that
execution pending appeal would have on that appeal.
(f) Whether the court a quo correctly interpreted the order of 8 April 2025
as extending beyond the 2023/24 Rates Policy to subsequent financial
years.
(g) Whether the court a quo erred in granting condonation for the late filing
of the replying affidavit, dismissing the strike-out application, and
making a punitive costs order.
[21] The central enquiry is whether the respondents established the jurisdictional
requirements for the exceptional remedy in section 18(3), and whether the relief
granted was competent and appropriately directed at giving practical effect to the
review order pending appeal.
Applicable legal prescripts
[22] Section 18 of the Superior Courts Act codifies the common-law position
governing the execution of court orders pending appeal. Generally, the operation
and execution of a decision which is the subject of an application for leave to
appeal or an appeal is suspended pending the determination of those
proceedings.
(23] Section 18(1) provides:
9
"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."
(24] Section 18(3) permits a court to depart from that default position, but only where
stringent requirements are met. It provides that a court may order execution
pending appeal only if the applicant proves on a balance of probabilities that-
(a) exceptional circumstances exist;
(b) the applicant will suffer irreparable harm if execution is not ordered; and
(c) the respondent will not suffer irreparable harm if execution is ordered.
(25] These requirements are cumulative. The failure to establish any one of them is
fatal to the application.
(26] Section 18( 4) further provides that where such an execution order is granted:
(a) the court must immediately record its reasons;
(b) an aggrieved party has an automatic right of appeal to the next highest
court;
(c) the appeal must be dealt with as a matter of extreme urgency; and
(d) the execution order is automatically suspended pending the outcome of
that appeal.
(27] The jurisprudence has consistently emphasised that section 18(3) creates an
exceptional departure from the ordinary rule that judgments are suspended
pending appeal. In lncubeta Holdings (Pty) Ltd v Ellis2 (/ncubeta) the court held
that exceptional circumstances depend on the peculiar facts of each case and
must be truly out of the ordinary.
2 2014 (3) SA 189 (GJ) para 16.
10
[28] The court in University ol the Free State v Afriforum3 explained that execution
pending appeal is "an extraordinary deviation from the norm" and that section
18(3) imposes a stringent threshold before a successful litigant may execute a
judgment pending appeal. The court has further held that the applicant bears the
onus throughout of establishing all three jurisdictional facts on a balance of
probabilities. The court may not reverse that onus or infer the absence of
irreparable harm merely because the respondent has not proved prejudice.
[29] The appellate court is not concerned with whether it would itself have exercised
the discretion differently. Where the decision depends upon the existence of
jurisdictional facts prescribed by statute, the appeal court is entitled to determine
afresh whether those jurisdictional requirements were established.
[30] In determining a section 18(3) application, the court is not called upon finally to
determine the merits of the pending appeal. However, where leave to appeal has
already been granted, particularly by the Supreme Court of Appeal, that is a
relevant consideration in assessing whether the appeal is bona fide and
reasonably arguable, and whether execution pending appeal risks rendering the
appeal academic.4
[31] Finally, because section 18(3) proceedings are ordinarily brought on motion, the
ordinary principles governing motion proceedings remain applicable. Material
disputes of fact must be resolved in accordance with the rule in Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd5 (Plascon-Evans), and courts should
be slow to make findings of bad faith, contempt or credibility on affidavit where
genuine disputes of fact exist.
[32] This court is not concerned with deciding the merits of the pending appeal before
the Supreme Court of Appeal. Nevertheless, the fact that the Supreme Court of
Appeal has granted leave to appeal is an important consideration demonstrating
Appeal has granted leave to appeal is an important consideration demonstrating
that the appeal raises reasonably arguable questions of law. Execution should
3 2018 (3) SA 428 (SCA) paras 9-10.
4 University of the Free State v Afriforum (2016) ZASCA 165 para 15.
5 1984 (3) SA 623 (A) at 634E-635C.
11
therefore not lightly be perm1tced where it may substantially anticipate or render
the appeal academic.
Exceptional circumstances
[33] The first jurisdictional requirement imposed by section 18(3) of the Act is the
existence of exceptional circumstances . The concept is not defined in the Act
and has deliberately been left to judicial development. In lncubeta , the court held
that exceptional circumstances are circumstances which, viewed against the
ordinary rule that execution is suspended pending appeal, justify a departure
from that rule.6 Whether such circumstances exist depends upon the peculiar
facts of each case and must be determined in the context of the interests of
justice.
[34] The enquiry is therefore fact specific. A court must consider the cumulative effect
of all relevant circumstances rather than isolate each factor and determine
whether it is intrinsically exceptional. Circumstances that may appear ordinary
when viewed individually may, in combination, constitute the degree of
exceptionality contemplated by section 18. Equally, the enquiry is informed by
the constitutional values implicated by the dispute and the practical
consequences of maintaining the statutory suspension pending the
determination of the appeal.
[35] The respondents relied on a constellation of circumstances which, taken
together, they contended justified immediate execution of the review order. In
practical terms, execution in this context would primarily prevent the City from
continuing to levy and enforce, against private educational properties, the
phased-in "business and commercial" tariff that the review court had declared
unlawful, and from employing credit-control measures, including the termination
of electricity, to compel payment of the differential over the education-equivalent
rate.
6 lncubeta above n 2 paras 21-2.
12
[36] Those circumstances includea:
(a) the disconnection of electricity to Salvazione Christian School shortly after
the review judgment;
(b) the continuing implementation by the City of the tariff structure declared
unlawful by the review court;
(c) the financial burden imposed on independent schools through the levying
of commercial rates;
(d) the recurring threat of credit-control measures; and
(e) the impact of those measures on learners, particularly children attending
schools serving vulnerable communities.
[37] It is common cause that the interruption of electricity at Salvazione Christian
School materially disrupted the school's ordinary functioning. T he evidence
demonstrates that teaching activities, nutrition programmes, learner safety and
the day-to-day administration of the school were adversely affected. Although
electricity was subsequently restored, the restoration followed urgent intervention
and a written undertaking by the City that no further disconnection would occur
on account of the disputed rates pending the appeal. The restoration of supply
did not eliminate the underlying dispute nor remove the continuing uncertainty
confronting the affected schools.
[38] The City submitted that these events were historical in nature and therefore
incapable of constituting exceptional circumstances at the time the section 18(3)
application was heard. It argued in particular that the disconnection at Salvazione
and the levying of the phased-in tariff occurred under the 2023/2024 policy, and
that by the time of the hearing, a new rates policy was in force which, in its view,
lawfully authorised the continued levying of commercial rates and the use of
credit-control measures. We are unable to agree. The disconnection was not
relied upon merely as an isolated historical event. Rather, it formed part of a
broader pattern of conduct that the respondents relied upon to demonstrate the
practical conse quences of permitting the suspension of the review order to
practical conse quences of permitting the suspension of the review order to
remain in place. The evidence before the court a quo disclosed that the City,
13
under its subsequent policies, continued to levy rates in accordance with the
same phased-in business and commercial tariff structure set aside in the review
proceedings and the subject of the appeal, and continued to reserve to itself the
right to employ statutory credit-control mechanisms in the event of non-payment.
Those circumstances created an ongoing risk of repeated disruption, grounded
in the continuation of the same scheme under a different legislative instrument,
rather than a completed event with no future significance.
[39] Considerable emphasis was placed by the City upon the written undertaking
furnished after the restoration of electricity. While that undertaking was properly
considered, it could not, in the circumstances of this case, neutralise the
respondents' concerns. The undertaking related to the disconnection of
electricity for one school. It did not resolve the broader dispute concerning the
continued implementation of the impugned tariff regime, nor did it constitute an
abandonment by the City of its position that commercial rates remained payable
notwithstanding the review judgment. The respondents were therefore not
required to accept that the u'ndertaking eliminated the prospect of future
prejudice, particularly where the evidence showed continuing disputes regarding
implementation of the review order.
[40] This matter is distinguishable from the ordinary commercial dispute in which
execution pending appeal is sought merely to secure the fruits of a monetary
judgment. The litigation concerns the implementation of a judgment affecting the
constitutional right to basic education, the best interests of children protected
under section 28(2) of the Constitution, and the constitutional obligation resting
upon organs of state to comply with and give effect to binding court orders. The
cumulative effect of the continued implementation of the impugned tariff
structure, the practical consequences for educational institutions, the
structure, the practical consequences for educational institutions, the
demonstrated disruption already experienced , and the constitutional interests
implicated, constitute exceptional circumstances within the meaning of section
18(3). The court a quo cannot therefore be faulted for concluding that the first
jurisdictional requirement had been established.
14
Irreparable harm: respondents
[41] The remaining jurisdictional requirements prescribed by section 18(3) are that
the applicant must establish, on a balance of probabilities, first, that it will suffer
irreparable harm if the order is not put into operation pending appeal, and
secondly, that the respondent will not suffer irreparable harm if execution is
permitted. These requirements are cumulative, and the onus rests squarely upon
the applicant throughout. As emphasised by the court in UFS v Afriforum the
threshold is deliberately stringent because section 18 constitutes an exceptional
departure from the general rule that judgments are suspended pending appeal.7
[42] The enquiry into irreparable harm is necessarily prospective. The court is
required to assess the practical consequences that are likely to arise during the
pendency of the appeal before the Supreme Court of Appeal. It is not sufficient
to identify harm already suffered unless that harm demonstrates a continuing or
recurring risk. Equally, the court must distinguish between prejudice that is
capable of subsequent redress through ordinary legal remedies and prejudice
which, by its nature, cannot adequately be remedied after the event.
[43] The respondents demonstrated that the continued enforcement of the impugned
tariff regime would have consequences extending well beyond financial
inconvenience. The evidence established that many independent schools,
including schools serving economically disadvantaged communities, would
continue to divert limited educational resources towards the payment of rates
levied at the disputed commercial tariff. While financial prejudice, viewed in
isolation, is ordinarily capable of subsequent recovery, the evidence in the
present matter demonstrates that the practical effect of the disputed levies is to
diminish the resources available for teaching, learner support programmes, the
maintenance of educational facilities, and the provision of essential services.
maintenance of educational facilities, and the provision of essential services.
Those consequences are neither abstract nor speculative.
[44] Of particular significance is the evidence regarding the disruption of educational
activities caused by the City's implementation of credit -control measures. The
7 UFS v Afriforum above n 3.
15
interruption of electricity i:lt Salvai:ione Christian School illustrated the practical
consequences that may follow where municipal powers are exercised pending
the determination of the appeal. The evidence showed that the interruption
adversely affected classroom teaching , learner nutrition programmes, security,
sanitation and the ordinary administration of the school. Harm of that nature
cannot meaningfully be reversed after the appeal has been determined. Lost
instructional time, disruption to vulnerable learners, and interference with the
delivery of basic education are not adequately compensable by an award of
damages.
[45) The constitutional dimension of the enquiry is of particular importance. Section
29(1 )(a) of the Constitution guarantees everyone the right to a basic education,
a right which the Constitutional Court has repeatedly recognised as immediately
realisable. Section 28(2) further provides that a child's best interests are of
paramount importance in every matter concerning the child. The prejudice
identified by the respondents is therefore not confined to proprietary interests. It
directly implicates the constitutional rights of learners who are not themselves
parties to these proceedings but whose interests the court is constitutionally
obliged to protect. Where the suspension of a judgment is likely to impair the
continued delivery of education, the resulting prejudice is properly characterised
as irreparable.
(46) The City contended that any prejudice suffered by the respondents could be
adequately addressed should they ultimately succeed on appeal, because any
excess rates paid could be adjusted or refunded. That submission fails to engage
with the substance of the respondents' case . The principal prejudice relied upon
is not merely the payment of additional rates but the practical consequences of
requiring schools to operate under an unlawful tariff regime during the period of
the appeal. Once educational programmes have been curtailed, staff retrenched,
the appeal. Once educational programmes have been curtailed, staff retrenched,
learners displaced, or essential services interrupted, subsequent reimbursement
cannot restore what has been lost.
Absence of irreparable harm : the City
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[47] It remains necessary to ccnsidm whether the respondents established that the
City will not suffer irreparable harm if execution is permitted. The City relied
principally on the impact that implementation of the review order would have on
municipal revenue, annual budgeting, and the administration of the Municipal
Property Rates Act8 (Municipal Property Rates Act) and the Municipal Finance
Management Act9 (Municipal Finance Management Act). Those considerations
are undoubtedly relevant. A municipality bears constitutional and statutory
obligations to ensure sound financial management, and the court must be astute
not to underestimate the significance of municipal fiscal planning.
[48] The question , however, is not whether the City will suffer inconvenience or
financial prejudice. Section 18(3) requires proof of irreparable harm. The
distinction is critical. The evioence demonstrates that the disputed revenue is
capable of precise calculation and accounting. Should the City ultimately
succeed before the Supreme Court of Appeal, it will remain legally entitled to
recover any rates found to have been underpaid together with any lawful interest
or ancillary charges permitted by the applicable statutory framework. The
temporary implementation of the review order therefore postpones, rather than
extinguishes, the City's entitlement should it ultimately prevail.
[49] Nor are we persuaded that the administrative consequences relied upon by the
City rise to the level of irreparable prejudice contemplated by section 18(3).
Municipal budgeting is necessarily dynamic and frequently accommodates
adjustments arising from litigation, legislative amendments and revised fiscal
assumptions. The City placed no evidence before the court a quo demonstrating
that compliance with the review order pending appeal would threaten its financial
viability, materially impair the discharge of its constitutional obligations or
produce consequences incapable of subsequent correction. The prejudice
produce consequences incapable of subsequent correction. The prejudice
identified is real but remediable. · It does not satisfy the stringent statutory
standard of irreparability.
8 6 of 2004.
9 56 of 2003.
17
[50] Having regard to all the evldence. we are satisfied that the respondents
discharged the onus resting upon them under section 18(3). They established,
on a balance of probabilities, that they and the learners served by the affected
schools would suffer irreparabie prejudice if execution were refused, whereas
the prejudice to the City, although not insignificant, is essentially financial and
administrative in character and is capable of subsequent adjustment should the
appeal before the Supreme Court of Appeal succeed. The court a quo therefore
committed no misdirection in concluding that the second and third jurisdictional
requirements had been established.
Interpretation of the April 2025 order
[51] The City submitted to the court a quo that it misconstrued the review order of 8
April 2025 by treating it as applicable beyond the 2023/2024 financial year.
According to the City, the review order concerned only the Rates Policy adopted
for that particular financial year and could not lawfully regulate subsequent
annual rates policies enacted Uf\der the Munic!pal Property Rates Act. It was
submitted that each annual rates policy constitutes a separate legislative
instrument under sections 4, 5 and, 12 _of.the Municipal Property Rates Act, read
with section 24 of the Municipal Finance Management Act, and that any
challenge to a later policy must be brought by way of separate review
proceedings. Further, the City contended that Mudau J effectively amended
earlier judgment by introducing obligations concerning future annual rates
policies which had never formed part of the original order.
[52] ISASA, by contrast, argued that paragraphs 2, 5, 11 and 13 of the April 2025
order unmistakably contemplated the entire four-year phase-in period and that
the July 2026 order merely enforced what had already been decided.
[53] This court need not determine that interpretative dispute conclusively, as that
forms part of the issues already before the Supreme Court of Appeal. It suffices
forms part of the issues already before the Supreme Court of Appeal. It suffices
to observe that the Supreme Court of Appeal has already granted leave to appeal
on the interpretation of the review order . That fact alone demonstrates that the
question is reasonably arguable. But for the purpose of this appeal, it remains
18
necessary to identify the practical consequ~nces of maintaining the suspension
of the review order while that appeal is pending. That enquiry does not require
this Court to finally decide the validity of later annual policies or the ultimate
meaning of paragraphs 2 and 5 of the review order.
[54) The review order concerned the 2023/2024 rates policy, which adopted a four
year phasing scheme under which privately owned educational properties would
move from the former education tariff to the business and commercial tariff over
the 2023/2024 to 2026/2027 financial years.
[55) The review court treated the impugned decision as a four-year phasing-in
scheme. It set aside the 2023/2024 Policy and By-Law insofar as they concerned
the categorisation of educational properties and the phasing-in of the relevant
rates, and directed the City to levy rates in accordance with paragraph 5 of its
order. The parties differ on whether, properly interpreted, that relief directly
governs the later annual policies and the rates levied under them. That difference
. . .. ·, .
is for the Supreme Court of Appeal to resolve.
[56] Before us, the City argued that each later annual rates policy is a separate
legislative instrument and that any· challenge to it must be brought in separate
proceedings. The respondents' answer is that, notwithstanding the adoption of
later instruments, the City has co'ntinued to levy rates at the phased business
and-commercial tariff in respect of privately owned educational properties. They
contend that the practical effect is to maintain the same migration from the
education tariff that was challenged in the review proceedings. The section 18
enquiry may take account of t~at practical consequence without deciding the
validity of any later policy.
[57) The practical consequence of the City's position is that, while the appeal remains
unresolved, affected schools must either pay the rates levied under the later
unresolved, affected schools must either pay the rates levied under the later
policies or institute further review proceedings as successive policies are
adopted. The respondents contend that this places them at risk of repeated
enforcement action and litigation rega'rding what they regard as the same phased
migration. That asserted consequence was relevant to whether the review order
19
should operate pending appeal. The respondents characterised the City's
conduct as denuding the effectiveness of court orders and requiring affected
parties to institute fresh litigation each year.
[58) That circumstance speaks directly to the City's constitutional position as an organ
of state. When there is a serious challenge to the validity of the purported
exercise of public power, a state of uncertainty necessarily follows: on the one
hand, the action is treated as if it were valid until declared invalid; on the other
hand, the practical consequences of the action may turn out to be invalid as well.
For that reason, the law requires all concerned to respect the pending legal
process and, as far as is reasonably possible, to limit the practical consequences
of the challenged action. In appropriate circumstances , an authority should halt
its actions when it is aware that review proceedings are to be instituted against
it. This imperative is reinforced by sections 165(4) and (5) of the Constitution,
which require organs of state to assist and protect the courts and make court
orders binding upon them. The authorities relied on by Mudau J and the
respondents, including Pheko v ·Ekurhuleni Metropolitan Municipality1° and Pikoli
v President, 11 emphasise that an organ of state may not undo court orders or
their practical consequences , and that where public power is under serious
challenge, it must, as far as reasonably possible, limit the practical
consequences of the impugned decision while the courts determine its
lawfulness.12 It does not determine the merits of the appeal or amount to a finding
of contempt. It is relevant to the practical and constitutional context in which the
section 18 enquiry must be conducted.
[59] The City's conduct, on the papers, was the opposite. Rather than limiting the
consequences of a scheme a'iready declared unlawful, it continued to levy and
enforce the phased-in tariff and to rely on later policies to preserve the practical
enforce the phased-in tariff and to rely on later policies to preserve the practical
incidence of that scheme pending appeal. Mudau J was therefore entitled to treat
the matter as dealing with the 2023/2024 phased-in policy and as relevant
1 0 2015 (5) SA 600 (CC).
11 2010 (1) SA400 (GNP).
12 The judge quotes JR de Ville Judicial Review of Administrative Action in South Africa
(LexisNexis Butterworths , Durban 2003) at 332-333 .
20
circumstances in deciding whe.tht-r suspension of the review order would cause
irreparable harm.
[60] In interpreting a court order, the court rnust adopt the now-settled approach
applicable to the interpretation of legal instruments generally. The language of
the order must be construed purposively and in its proper context, having regard
to the judgment as a whole and the issues that the court was called upon to
determine. An order cannot be interpreted in isolation from the reasons that
explain its meaning and intended effect. The application of that approach to
paragraphs 2 and 5 of the review order, however, is one of the questions before
the Supreme Court of Appeal.
[61] The review judgment demonstrates that the legality of the City's decision was
examined against the backdrop of the entire phased tariff structure. The review
court repeatedly referred to the four-year implementation period and concluded
that the migration of educational properties to the business and commercial tariff
was unlawful. The relief grantJd 'was de;igned not merely to invalidate the tariff
applicable during the 2023/2024 financial year but to restore the educational tariff
that would have prevailed had the unlawful decision not been implemented.
[62] It is common cause that municipalities are required annually to adopt rates
policies and tariffs in accordance with the Municipal Property Rates Act and the
Municipal Finance Management Act. The City relies on that annual legislative
process to support its submission that each subsequent policy must be
' ..
challenged separately. Whether that submission is correct, having regard to the
terms and effect of the review order; is not for this Court to decide. For present
purposes, it is sufficient that the respondents' contention raises a practical
question: whether a municipality may preserve the practical effect of a decision
already declared unlawful merely by incorporating that decision into successive
already declared unlawful merely by incorporating that decision into successive
annual fiscal instruments, pending an appeal. It would seem that to accept such
a proposition would enable an organ of state to neutralise the practical effect of
a review judgment whil.e an appeal is pending, notwithstanding the constitutional
obligation resting upon it to respect and give effect to judicial decisions.
21
[63] The respondents did not seek, in the section 18 proceedings, a review and
setting aside of the later annual policies as independent legislative instruments.
They complained that the City continued, through those instruments, to give
practical effect to the same phased tariff regime that the review court had
declared unlawful. That distinction is important. The section 18(3) proceedings
did not seek to review or invalidate the later rates policies. Rather, they sought
to ensure that the review judgment retained practical efficacy pending the
determination of the appeal.
[64] The evidence before the court a quo demonstrated that the City continued to
categorise privately owned educational properties under the business and
commercial tariff and continued to levy rates calculated according to the phased
progression that had formed the subject of the review proceedings. On the
respondents' case, this left affected schools with a choice between paying the
disputed tariff and pursuing further proceedings in respect of later policies. That
practical predicament was relevant to the section 18 enquiry. It did not require . .
the court to determin·e the validity ·of those policies.
[65] The City's approach would substantially undermine the effectiveness of judicial
review in matters involving ongoing povernmental conduct. Where a review court
has declared a particular administrative or legislative scheme unlawful, an organ
of state cannot, pending appeal, preserve the practical operation of that scheme
by re-enacting its material features in successive instruments while contending
that each requires fresh litigation. Such an approach is inconsistent with the
constitutional principle that court orders are binding upon organs of state until set
aside by a competent court.
[66] It follows that Mudau J did not err in concluding that the continued implementation
of the phased tariff structure was a relevant consideration in determining whether
of the phased tariff structure was a relevant consideration in determining whether
execution should be permitted pending appeal. That conclusion did not
determine the merits of the pending appeal before the Supreme Court of Appeal.
Nor did it usurp the appellate function of that court. It merely recognised that,
unless execution were authorised, the respondents would continue to experience
the practical consequences of a scheme that had already been declared unlawful
22
by the review court, notwitl1star,ding that tho legality of that declaration remained
the subject of appellate scrutiny.
[67) The existence of the appeal before the Supreme Court of Appeal is undoubtedly
an important consideration. The grant of leave to appeal demonstrates that the
issues are reasonably arguable. It does not, however, create a presumption
against execution pending appeal, nor does it displace the statutory enquiry
mandated by section 18(3 ). Once the respondents established exceptional
circumstances and irreparable harm, the court a quo was entitled to conclude
that the interests of justice favoured preserving the practical efficacy of the review
order pending the final determination of the appeal. We accordingly find no
material misdirection in the court a quo's approach to interpreting and
implementing the review judgment.
Scope of section 18 relief
[68) The City further cqntends 1hat,.~ven if the j_u~isdictional requirements of section
• • • I
18(3) were established, the s;ourt a quo exceeded the powers conferred upon it
by granting relief extending beyond the execution of the review order. It is
submitted that the declaratory orders, supervisory relief, suspension of portions
of the 2026/2027 Rates Policy and By-law, the interdict restraining credit-control
measures, and paragraphs 9 and 11 of the order constituted fresh substantive
relief which could not compete~tly oe granted in proceedings brought under
section 18(3).
[69) It is correct that section 18(3) is not an independent source of substantive
jurisdiction. Its purpose is limited. It empowers a court, in exceptional
circumstances and where 'the· prescribed jurisdictional facts have been
established , to order that an existing judgment operate notwithstanding the
noting of an appeal. It does not authorise a court to determine fresh causes of
action or to grant substantive final relief unrelated to the implementation of the
judgment under appeal.
judgment under appeal.
(7 0) Tha t principle, however , must be applied with due re gard to the nature of the
proceedings before the court a qu_o. The respondents did not seek to advance a
23
new cause of action divorced from the reviEiw judgment. The central purpose of
the application was to secure the effective implementation of the order of 8 April
2025 during the pendency of the appeal. In considering whether execution
should be authorised, the court was entitled to examine the conduct of the parties
following the grant of the review order and to fashion ancillary relief directed at
rendering that order practically effective.
[71] Courts possess an inherent power to regulate their own process and to ensure
that their orders are not rendered ineffective through conduct designed, whether
deliberately or otherwise, to frustrate their implementation. Section 173 of the
Constitution preserves the inherent power of the superior courts to protect and
regulate their own processes, having regard to the interests of justice. That
inherent jurisdiction does not permit a court to disregard statutory limitations. It
does, however, permit the making of procedural and ancillary orders necessary
to give practical effect to existing judgments.
[72] The supervisory directions issued to the Acting Municipal Manager must be
viewed in that context. They were directed towards ensuring compliance with the
review order and securin_g accountability on the part of the municipality in
implementing a judgment b_indin~ upon it. Structural or supervisory relief is now
well recognised in South African constitutional jurisprudence as an appropriate
mechanism where onQoing complian.ce by organs of state is required. The fact
that such relief accompanies · an order under section 18 does not necessarily
render it incompetent, provided that it remains directed at securing compliance
with the existing judgment rather than creating new substantive rights.
[73] Likewise, the interdict restraining the implementation of credit-control measures
was not granted as an independent remedy, but rather as an ancillary measure
in support of the ~evie~ order .. _ Its evident purpose was to preserve the efficacy
in support of the ~evie~ order .. _ Its evident purpose was to preserve the efficacy
of the review judgment by prev~nting enforcement action based upon the tariff
structure that had been declared unlawful. Had the City remained free to
disconnect services or institute credit-control measures founded upon the
impugned tariff during the pendency of·the appeal, the practical benefit of the
section 18 order would nave been-substanti.ally undermined .
. . . . 24
[74] The City's submission that the su$per1sion of portions of the 2026/2027 Rates
Policy constituted impermissible s1Jbstantive relief requires closer scrutiny.
Ordinarily, a court exercising powers under section 18 would not suspend the
operation of legislative instrume~ts not them~elves the subject of the underlying
judgment. However, the evidence before the court a quo established that the
' ..
impugned provisions of the 2026/2027 policy represented the continued
implementation of the very phased tariff scheme declared unlawful in the review
proceedings. The temporary suspen·sion of those provisions was therefore not
directed at determining their ind~pen~ent validity but at preventing the review
order from being rendered ineffective pending appeal.
[75] The City separately attacks paragraphs 9 and 11 of the order. It submits that both
purport to preclude the automatic suspension that follows, under section
18(4 )(a)(iv) of the Act, when an appeal is noted against an order made under
section 18(3). The submission requires separate consideration of each
paragraph.
[76] Section 18(4)(a)(iv) is perempt9ry and self-executing. Where an execution order
~ ~ ~ . .
is granted unde_r section 18(3), and an appeal is filed against it, the execution
order is automatically suspended by law pending the determination of the appeal.
. 1
No court order granting execution can override this suspension, whether based
on section 18(3) or the inherent powers retained by section 173 of the
Constitution.13
[77] Paragraph 9 provides that the operation and execution of paragraphs 1 to 5 of
the review order "is not suspended by any application for leave to appeal or any
appeal", and that the review order continues to be operational and enforceable
"until the final determination of present and future leave to appeal applications
and appeals". Read in the context of an order granted under section 18(3), that ' ' • '
language is directed at the suspension worked by section 18(1) in respect of the
language is directed at the suspension worked by section 18(1) in respect of the
review order. That is the very suspension section 18(3) exists to lift, and lifting it
is what the court a quo was asked to do. The language cannot bear the wider
meaning of excluding the distinct suspension worked by section 18(4)(a)(iv) in
.
13 Knoop and Another NNO v Gupta (Tayob Intervening) [2020] ZASCA 149 para 29.
25
respect of the execution order itsel+, because the statute forbids that meaning,
and because Mudau J was plainly conscious of the statute, having furnished his
reasons immediately as section 18(4)(a)(i) requires. An order must, where its
language reasonably permits, be construed so as to be lawful and effective. So
construed, paragraph 9 requires no ~mendment.
[78] This is not a novel course. In Maritz v Truworths Ltd, 14 a Full Court of the Western
Cape Division sitting in an appeal under section 18(4 )(a)(ii) confronted an
execution order in materially identical terms, providing that the order under
appeal "shall not be suspended pending the determination of the Respondent's
application for leave to appeal and any further appeal proceedings". The court
held that, to the extent that this wording was arguably wide enough to include the
section 18(4 )(a)(ii) appeal then before it. it was incompetent; but that, properly
construed, and bearing in mind the provisions of section 18(4 )(a)(iv) "of which
Higgins AJ was doubtless aware", the order was not intended to include that
appeal.15 No part of the order was set aside on that account. We would adopt the
same approach. . .
[79] Nor is paragraph 9 incompet~n.t b~cause it refers to present and future leave
applications and appeals. That complaint was rejected in Maritz, on the strength
of Ntlemeza v Helen Suzman Fowydation, 16 in which the Supreme Court of
Appeal endorsed a proactive approach by a court in granting an execution order
to avoid "a multiplicity of applications" and the "to-ing and fro-ing of litigants".
Navsa JA approved wording substantially similar to paragraph 9, noting that the
high court reasonably foresaw additional appeals and issued an order not only
to clarify the current position but also to anticipate future appeal processes.
Courts have the right to oversee their own procedures. In this regard, paragraph
9 remains appropriate.
[80] There is a f~rther and simpler answer. The suspension under section 18(4 )(a)(iv)
[80] There is a f~rther and simpler answer. The suspension under section 18(4 )(a)(iv)
has already done its work. Paragraph 9 has been suspended since 6 July 2026,
when the City noted this appeal, and has not operated since. On the dismissal of
14 [2025] ZAWCHC 508
15 Para 63.
16 [2017] ZASCA 93 at para 32.
26
this appeal, the execution order revives hy operation of law, and paragraph 9
revives with it.
[81] Setting the paragraph aside does not remedy anything. It removes from the
respondent relief Mudau J was _entitled to grant. When a statutory provision
overrides the alleged defect, an appellate court does not go further.
[82] Paragraph 11 requires separate treatment, even though the outcome is the
same. That paragraph interdicts the City from taking credit-control action to
enforce rates exceeding the education-equivalent tariff. The City attacks it on the
same ground as paragraph 9, namely that it impermissibly defeats the automatic
suspension in section 18(4 )(a)(iv). That ground misconceives the basis on which
paragraph 11 was granted.
[83] Section 18(4 )(a)(iv) suspends an execution order granted under section 18(3).
Paragraph 11 is not such an order. It was not granted in order to put the review
order into operation. It was sought as separate relief, in the alternative, in the
event the court found that paragraph 2 of the review order did not itself prohibit
the City from enforcing the business and commercial rate. The requirements for
an interim interdict were pleade~! in t~~t alte~native, as a discrete cause of action.
Mudau J granted it on that footing. ~e held that, given his finding on paragraph
' 2, it was strictly unnecessa~ to reach the alternative relief, but that its
requirements had in any event been established: a reasonable apprehension of
irreparable harm, a balance of convenience favouring the interdict, and the
absence of a suitable alternative remedy.
[84] This means that section 18(4 )(a)(i~) has no application to paragraph 11, because
that paragraph does not owe its exist~nce to section 18(3). It also means that the
correctness of paragraph 11 falls to be tested against the requirements for an
interim interdict, and it has not been attacked on that basis. The City does not
contend that a prima facie right was absent, that the apprehension of harm was
contend that a prima facie right was absent, that the apprehension of harm was
unreasonable, that the balance of convenience favoured it, or that a suitable
alternative remedy existed. Paragraph 11 accordingly stands unassailed on the
only grounds relevant to it. •
27
(85] It may be said that paragraph 11 cannot be independent of the section 18 relief
because it was sought conditionally. We do not agree. Relief pleaded in the
alternative is not for that reason dependent upon the relief to which it is an
alternative. The conditional formulation identifies paragraph 11 as the relief to be
granted if the section 18 case should fail to provide the necessary relief.
(86] If paragraph 11 was to be regarded ~s an order granted under section 18(3), the
answer is the same as for paragraph 9. It cannot exclude the operation of section
18(4 )(a)(iv), and it need not be set aside in order to be denied that effect.
(87] The City further criticised the court a quo for making observations regarding its
conduct and its constitutional obligations. Those observations must be
understood in context. The court was required to assess whether exceptional
circumstances existed and whether the continued suspension of the review order
would occasion irreparable prejudice. In undertaking that enquiry, it was both
relevant and necessary to consider the City's conduct following the review
judgment. References to the constitutional obligations resting upon organs of
• '
state were not findings of contempt but formed part of the broader assessment
required under section 18(3).
(88] The court a quo was entitled to emphasise that organs of state occupy a special
constitutional position. They are expected to conduct litigation in a manner
consistent wi.th the rule of law, constitutional accountability and respect for
judicial authority. Those observations neither determined the pending appeal nor
imposed criminal or quasi-criminal liability upon the City. They reflected
constitutional principles which informed the exercise of the court's discretion
under section 18(3).
(89] In the result, we conclude that the court a quo did not materially exceed the ambit
of section 18 by granting ancillary relief designed to secure the effectiveness of
the review order.
Factual disputes
the review order.
Factual disputes
[90) The City further contended that the court a quo impermissibly resolved material
disputes of fact on the papers and, in doing so, made findings of bad faith,
28
constitutional breach ancl conduci akin to Gontempt without referring the matter
to oral evidence. Reliance was plnced upon the principles articulated in Plascon
Evans.
[91] The submission cannot be upheld. The Plascon-Evans rule does not require
every factual disagreement appearing in affidavits to be referred to oral evidence.
The rule applies only where a drspute is genuine, bona fide and material to the
determination of the issues before the court. Courts are required to distinguish
between real disputes of fact and disputes that are contrived, peripheral or
incapable of affecting the outcome . .
[92] The essential facts upon which the section 18 application depended were either
common cause or objectively established by documentary evidence. It was not
disputed that the review order had been granted on 8 April 2025; that leave to
appeal had suspended its operation by virtue of section 18(1 ); that electricity to
Salvazione Christian School had subsequently been disconnected; that the City
furnished a written undertaking following restoration of supply; and that disputes
• ,,r ,.
thereafter continue~ regarding the_ implementation of the review judgment and . ,. . ,, . .
the continued levying of the impugned tariff.
[93] The differences between th_e .,P~rties concerned principally with the legal
significance of those events rather than their occurrence. That exercise did not
involve the determination of credi_bility disputes of the kind ordinarily requiring
viva voce evidence. In any event, no application for contempt was sought or ... ~ . , ..
granted; the court's observations were made in the context of assessing , .
exceptional circumstances an~ the City's conduct as an organ of state exercising
public power.
[94] Nor did the court a quo determine an application for contempt of court. No
declarator of contempt was sotJght or gr_anted, and no coercive or punitive
sanctions were imposed. References to se<;:tion 165 and to the binding nature of
sanctions were imposed. References to se<;:tion 165 and to the binding nature of
court orders were made in the context of assessing exceptional circumstances
and the City's 9onduct as an ._or~an of state exercising public power. In these
c irc ums tanc es, there is no misdirection in the court a quo's decision to determine
29
•, •.
:- ..
the application on affidavit. and there is accordingly no basis upon which this
court may interfere with the exercise of the court a quo's discretion in that regard.
Condonation
[95] The City also challenges the order granting condonation for the late filing of the
respondents' replying affidavit and the dismissal of its application to strike out
portions thereof. It is common cause that the replying affidavit was delivered
approximately nine months out of time.
[96] The grant or refusal of condonation is a matter entrusted to the judicial discretion
of the court of first instance. An appellate court will interfere only where that
discretion has not been exercised judicially , or where it is shown that the court
acted upon a wrong principle, misdirected itself on the facts, or concluded that
no reasonable court could have reached.
[97] The explanation tendered by the respondents was that significant developments
occurred after the institution . Qf the application, including the continued
implementation of the impugnep, tarJff regime and events relied upon to
demonstrate exceptional circumstances. Those matters were directly relevant to
the prospective enquiry required under section 18(3). The respondents sought to
place before the court the factual p~sition as it existed at the time of the hearing
rather than at the institution of th~ proceedings.
[98] While the delay was substantial and cannot be overlooked , the court a
quo considered the explanation, the importance of the issues, the absence of
irremediable prejudice to the ,Sity, and . the interests of justice before granting
condonation. Those are precisely the considerations that ought to have informed
the exercise of the discretion.
[99] Equally, the dismissal of the strike-out application cannot be faulted. The material
complained of was directed largely at subsequent events relevant to the section
18 enquiry. To the extent that portions of the replying affidavit traversed matters
18 enquiry. To the extent that portions of the replying affidavit traversed matters
arising after the founding ~apers had been delivered, they were responsive to
tile evolving factual matrix and assisted tile court in determining whether
30
exceptional circumstances continued to exist at the time the application was
heard.
[100] No misdirection has been demonstrated. The City's challenge to the condonation
order and the dismissal of the ~trike-out application must therefore fail.
Costs
[101] The remaining issue concerns the punitive costs order granted by the court a
• <
quo.
[102] It is well established that the questie:m of costs lies within the discretion of the
court that hears the matter. An appellate court will not lightly interfere with that
discretion unless it is shown that it was not exercised judicially or was materially
influenced by an error of law or fact.
[103] The court a quo considered that tile City's conduct following the review judgment
warranted the grant of attorney-and-client costs. It regarded the continued
• \ _: • . ::' \,rt ' .. • • • • •
implementation of the impugnea tariff stnicture, together with the necessity of
compelling compliance through urgent litigation, as conduct deserving of judicial
censure.
[104] While reasonable minds may differ as to whether a punitive costs order was the
only appropriate order, that is not the test on appeal. The question is whether the
discretion exercised by the court a quo was vitiated by a material misdirection.
We are unable to conclude that it was. The court was entitled to consider the
constitutional obligations resting upon an organ of state, the importance of
ensuring compliance with judicial orders, and the prejudice occasioned to
educational institutions and learners.
[105] Moreover, the litigation raised issues of considerable constitutional importance
involving the rule of law, the administration of local government, and the
protection of the right to basic education. The court a quo was entitled to
• • J • • •
conclude that the City's condu~t justified a costs order on the attorney-and-client ... . : ' .
scale to mark the court's di~approval and to ensure that the respondents were
31
not left out of pocket after being compelled to approach the courts repeatedly to
secure the benefit of an order already yranted in their favour.
[106] Accordingly, we find no basis to interfere with the costs order made by the court a
quo.
Conclusion
[107] The central issue in this appeal is not whether the City has prospects of success
before the Supreme Court of -Appeal in the main appeal. That question falls
exclusively within the jurisdiction of that court. The issue before this court is
narrower: whether the respondents established the statutory requirements for
execution pending appeal under section 18(3) of the Act and whether the relief
granted by the court a quo fell within the permissible limits of that provision.
[108] Section 18 creates a deliberate departure from the ordinary rule that the noting
of an appeal suspends the operation and execution of a judgment. The
exceptional nature of that remedy requires strict compliance with the statutory
requirements. In the presen.t ~a·tt~r. ho~ever , the ~esp~ndents discharged the
onus imposed upon them.
[109] The respondents demonstrated exceptional circumstances ansmg from the
continuing practical consequences of the City's implementation of a tariff regime
declared unlawful by the review court, the constitutional interests implicated by
the dispute, the vulnerability of affected learners, and the need to preserve the
effectiveness of the review order pending the determination of the appeal.
[11 OJ The respondents further established that they and the learners affected by the
dispute would suffer irreparable harm if execution were refused. The prejudice
was not confined to financial consequences but extended to the interruption of
educational services and the impairment of constitutional interests that cannot
subsequently be remedied through financial compensation. Conversely, the
prejudice identified by the City ~as primarily financial and administrative and
prejudice identified by the City ~as primarily financial and administrative and
could be addressed should the City ultimately succeed before the Supreme Court
of Appeal.
32
[111] The court a quo therefore correctly exercised the discretion conferred by section
18(3). The City's challenge to the merits of that exercise cannot succeed. The
fact that the Supreme Court of Appeal has granted leave to appeal in the main
matter does not alter the position. It confirms only that the issues are arguable; it
does not establish that execution pending appeal is impermissible where the
statutory requirements have otherwise been satisfied.
[112] The appeal accordingly fails in all respects. The respondents are entitled to their
costs, including the costs of two counsel.
Order
[113] The following order is made:
(1 ) The appeal is dismissed .
(2) The order of the court a quo is confirmed.
(3) The respor.idents_.are ~warded .tbe costs of the appeal, including the costs of
two couns~I. I .·• (
33
WJ DU PLESSIS
Judge of the High court
Gauteng Division
JOHANNESBURG
D MAHOSI
Judge of the High court
Gauteng Division
JOHANNESBURG
APPEARANCES
For the Appellants
Instructed by
For the Respondent
Instructed by
Date of Hearing
Date of Judgement
: S Ogunronb i with FA Darby
: Motsoeneng Bill Attorneys
: M Salukazana with M Kritzinger
: Bowman Gilfillan Inc.
: 22 July 2026
: 4 September 2026
34
Gauteng Division
JOHANNESBURG