Enforcement orders explained: Circumstances that demand immediate compliance

In this era of Stalingrad litigation, it is well known to court reporters and amateur legal experts alike that the noting of an appeal (or an application for leave to appeal) against a judgment suspends the operation and execution of the judgment – the intention being to prevent irreparable harm to the party seeking to appeal the judgment. Both the common-law rule[1] as well as section 18 of the Superior Courts Act[2] (“Act“), which superseded it, allow for deviations from this default position, in order to prevent irreparable harm to the winner when the facts so require. In such cases, it is for the winner, i.e. the party opposing the appeal, to convince the court, on application, that exceptional circumstances exist that justify an order (“enforcement order“) that the judgment be put into effect immediately, despite the appeal.

Under the common law, the Court was vested with a wide discretion as to whether to grant an enforcement order or not. Where there was potential for both parties to suffer irreparable harm if the judgment were to be enforced before the appeal process was finalised, the court would weigh up the balance of hardship as one of the factors in exercising its general discretion – along with other factors such as prospects of success on appeal.

Section 18 of the Act changed the position. The court’s previously wide discretion was removed, and replaced by factual enquiries that now inform the court’s decision. First, section 18(1) provides that the court may issue an enforcement order only “under exceptional circumstances”. Secondly, in terms of section 18(3), the court may grant an enforcement order only if the applicant “in addition” proves on a balance of probabilities that it will suffer irreparable harm if the court does not grant an enforcement order, and that the other party will not suffer irreparable harm if the court does grant it.

The Gauteng Division of the High Court, Johannesburg, grappled with the meaning of these requirements in Incubeta Holdings (Pty) Ltd and Another v Ellis and Another[3]. Addressing the meaning of the elastic term “exceptional circumstances”, the Court agreed with earlier authority[4] that in order to be exceptional, the circumstances concerned must arise out of or be incidental to the particular case. Further, the Court opined that although “exceptional circumstances” might be indefinable and difficult to articulate, the conclusion that they exist in a given case is not a product of discretion but a finding of fact. Regarding irreparable harm, the Court found that the proper meaning of section 18(3) is that “if the loser, who seeks leave to appeal, will suffer irreparable harm, the order must remain stayed, even if the stay will cause the victor irreparable harm too. In addition, if the loser will not suffer irreparable harm, the victor must nonetheless show irreparable harm to itself. A hierarchy of entitlement has been created…” – with the winner who seeks immediate enforcement of the judgment being lower on the hierarchy than the loser who seeks to appeal it.

In Tyte Security Services CC v Western Cape Provincial Government & Others[5], the Supreme Court of Appeal (SCA) added a further nuance in finding that the “exceptional circumstances” requirement does not have to be separate and distinct from the “irreparable harm” enquiries and does not necessarily require additional and separate facts to establish. Despite the words “in addition” in section 18(3), the overarching enquiry is whether there are exceptional circumstances to justify a deviation from the default position, and “…the presence or absence of irreparable harm… may well be subsumed under the… exceptional circumstances enquiry”. The SCA concluded that as long as the Court is alive to its duty to satisfy itself in respect of exceptional circumstances and irreparable harm, it does not need to do so in a formulaic or hierarchical fashion.

The recent decision of a full bench of the Northern Cape High Court in Alexkor SOC Ltd v Vast Mineral Sands (Pty) Ltd and Others[6] is illustrative. Vast Mineral Sands (“Vast“) had acquired a prospecting right under the provisions of the Mineral and Petroleum Resources Development Act[7] (“MPRDA“) over the same piece of land in the Richtersveld in respect of which Alexkor SOC Ltd (“Alexkor“)and its partners had the right to mine diamonds. Vast’s prospecting right was for an initial period of five years, and initially, Alexkor allowed Vast onto the land to go about its prospecting. Alexkor then unilaterally terminated Vast’s access. After the MPRDA-envisaged dispute resolution process had failed to resolve the dispute, Vast applied for an interdict in the High Court on an urgent basis to allow it access to the land to prospect. The application was successful: Alexkor was interdicted from preventing Vast from exercising its statutory right of entry onto the land, and (in case that wasn’t clear enough) directed to provide Vast free and unrestricted access to the land. Alexkor unsuccessfully sought leave to appeal, and Vast successfully counter-applied for an enforcement order. Alexkor then applied to the SCA for leave to appeal, and simultaneously sought to use its automatic right of appeal under section 18(4)(ii) to appeal to a full bench of the High Court to have the enforcement order set aside.

Addressing the law relating to section 18, the full bench noted that primary consideration is still to prevent irreparable harm to the party seeking to appeal. However, the differences between the common law position and section 18 have made the nett position even more onerous on the party seeking enforcement than it was before. Previously, where there was potential for irreparable harm to both parties if the order were to be enforced pending the appeal, the court would weigh up the balance of hardship as one of the factors to be considered, and could still exercise its discretion in favour of enforcement. Under section 18, any irreparable harm to the loser will preclude enforcement.

Applying the law to the facts, the full bench noted that it was common cause that the prospecting right was for a limited period – an initial five-year period which was renewed for a further three years while the main application was pending and had only 15 months remaining. No further renewal was possible. Alexkor had prevented Vast from prospecting for all but ten months of the initial period. Vast contended that exceptional circumstances existed for an enforcement order because the mere ten months prospecting it had been restricted to by Alexkor were insufficient to fulfil two important requirements: firstly to satisfy the DMRE[8] that a mining right should ultimately be issued to Vast, and secondly, to garner the required prospecting data to enable Vast to attract investors to raise the necessary finance to mine. If the remaining period of the extended prospecting right were to be eaten up by appeals, then Vast would suffer irreparable harm. Vast had further contended that Alexkor would suffer no irreparable harm if enforcement were to be granted – bearing in mind that if Alexkor could show a likelihood of any irreparable harm, the court would have to refuse enforcement.

Alexkor contended that it would indeed suffer irreparable harm if the order were to be put into effect, in that absent any agreement between Alexkor and Vast on statutory health and safety requirements, Alexkor would be exposed if a serious or fatal accident were to occur, and its mining right potentially placed at risk. Vast replied by pointing out that during the ten months that it did prospect on the property it had followed Alexkor’s health and safety protocol without incident. Vast also demonstrated that in various correspondence it had tried to negotiate a health and safety protocol with Alexkor but had been either ignored or rebuffed. Further, Vast had tendered to comply with Alexkor’s security requirements and respect Alexkor’s rights. The court held that Vast’s irreparable harm was self-evident from the common-cause facts, and that Alexkor’s allegations were “contrived”. The court scathingly rejected as “facile” Alexkor’s argument that there is nothing exceptional about a prospecting right being of limited duration. It also rejected Alexkor’s argument that Vast needed to allege additional facts and circumstances to establish irreparable harm, over and above the facts establishing exceptional circumstances: that rigid, silo-based approach had been put to bed by the SCA in Tyte. Lastly, the court rejected Alexkor’s attempt to rely on arguments that went to the merits of the main application (still subject to a pending appeal)[9] and kept the enquiry strictly within the parameters of section 18. Alexkor’s appeal was dismissed, and the enforcement order stood.

In light of the judgment in Alexkor v Vast, any party applying for an enforcement order would be well advised to focus its efforts on establishing its own anticipated irreparable harm in the event the order is not granted, and, equally importantly, excluding the possibility of the other party suffering irreparable harm if the order is granted. Exceptional circumstances will generally flow from these findings.

This article was prepared by Pierre Burger.


[1] Encapsulated in Uniform Rule 49(11).

[2] Act 10 of 2013.

[3] 2014 (3) SA 189 (GJ)

[4] MV Ais Mamas Seatrans Maritime v Owners, MV Ais Mamas, and Another 2002 (6) SA 150 (C)

[5] 2024 JDR 2306 (SCA)

[6] Appeal Case No: CA+R26/2024; 10 September 2024

[7] Act 28 of 2002

[8] Department of Mineral Resources and Energy

[9] Alexkor sought to argue that Vast had not followed due process in obtaining its prospecting right, and also that the prospecting right was subject to an unfulfilled condition, making it illegal for Vast to prospect.