Lungekazi Geca v Anelisa Ndzekeni and Others

The applicant alleged she was allocated a residential site at Highbury location by a sub-headman and allocation committee. The first respondent claimed she purchased the same site for R60,000 from Phumeza Mapanzela, a member of the allocation committee, in October 2017, based on a resolution that sites should be allocated to youth of Highbury location and committee members, not residents of Rosedale location where the applicant resided. The first respondent took occupation, fenced the property, and commenced construction. Previous litigation between the parties commenced in December 2021 (Case No. 5390/2021) seeking interdictory relief. On 25 January 2022, Nhlangulela DJP granted an interim order restraining the first respondent from continuing construction until the matter was settled or finalized. This order was never rescinded. On 4 April 2022, another interdict was granted, which was later rescinded on 23 January 2025. In her answering affidavit in the main application filed on 17 February 2025, the first respondent expressly stated she had commenced construction and would complete it by December 2025. The applicant filed her replying affidavit in March 2025 acknowledging this construction was illegal. On 15 April 2025, the applicant launched this urgent application seeking to interdict the first respondent from continuing construction pending finalization of the main application.

• Whether the application was properly brought as an urgent application under Rule 6(12)
• Whether the applicant unreasonably delayed in bringing the urgent application, thereby creating self-created urgency
• Whether the applicant was entitled to the relief sought given the existence of a prior court order granting similar relief
• Whether an applicant who fails to file a replying affidavit is bound by uncontested allegations in the respondent's answering affidavit

The application was dismissed with costs.

An urgent application will be dismissed where the urgency is self-created through unreasonable delay by the applicant in approaching the court after becoming aware of the facts giving rise to the alleged urgency. A delay of two months between becoming aware of ongoing construction (through service of court papers expressly stating such construction was continuing) and bringing an urgent application to interdict such construction constitutes unreasonable delay that undermines urgency. Furthermore, an application seeking interdictory relief identical to relief already granted in an existing, unrescinded court order constitutes an abuse of process and cannot succeed. An applicant who fails to file a replying affidavit to contest material allegations in a respondent's answering affidavit will be bound by those uncontested allegations.

The court observed that when a directive is issued for a matter to be heard as urgent, it is based only on the applicant's version, and the respondent cannot be prejudiced by accommodating the applicant through undertakings before obtaining full instructions. The court noted that both parties must be heard before a decision is made, which is a cornerstone of the legal system. The court also noted (without deciding) that the relief sought against the third respondent (police) appeared to be incompetent, though this issue was not fully argued as the police's legal representatives did not appear or make submissions. The court did not find it necessary to address all the grounds on which the first respondent attacked the application given the findings on urgency and the existence of the prior court order.

This case reinforces important principles regarding urgent applications in South African law: (1) applicants seeking urgent relief must approach the court at the earliest opportunity and cannot delay for substantial periods after becoming aware of the facts giving rise to the urgency; (2) self-created urgency will not be condoned by the courts; (3) interim undertakings and directives do not constitute judicial determinations on urgency or the merits; (4) applicants have a duty of candor to the court and must provide a true and complete account of material facts, particularly regarding when they became aware of the conduct they seek to interdict; (5) courts will not grant relief that duplicates existing court orders; and (6) failure to file a replying affidavit will result in uncontested allegations in the answering affidavit standing against the applicant. The case also illustrates the importance of enforcing existing court orders rather than seeking fresh relief.