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[2015] ZASCA 57
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Thulamela Municipality and Another v Tshivhase and Others (78/2014) [2015] ZASCA 57 (30 March 2015)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not
Reportable
Case
no
:
78/2014
In
the matter between:
THULAMELA
MUNICIPALITY
........................................................................
FIRST
APPELLANT
THE
MUNICIPAL MANAGER: THULAMELA
MUNICIPALITY
..............................................................................................
SECOND
APPELLANT
and
THOVHELE
MIDIAVHATHU
PRINCE
KENNEDY
TSHIVHASE
.................................................................
FIRST
RESPONDENT
TSHIVHASE
TRADITIONAL COUNCIL
...............................................
SECOND RESPONDENT
VALULINE
203 (PTY)
LTD
............................................................................
THIRD
RESPONDENT
MEC
FOR CO-OPERATIVE GOVERNANCE
HUMAN
SETTLEMENTS AND
TRADITIONALAFFAIRS:
LIMPOPO
PROVINCE
...............................................................................
FOURTH
RESPONDENT
MINISTER
OF RURAL DEVELOPMENT
AND
LAND
REFORM
.....................................................................................
FIFTH
RESPONDENT
REGISTRAR
OF DEEDS: DEEDS
REGISTRATION
OFFICE
..............................................................................
SIXTH
RESPONDENT
Neutral
citation:
Thulamela Municipality &
another v T Tshivhase & others
(78/2014)
[2015] ZASCA 57
(30 March 2015)
Coram:
Ponnan, Shongwe and Majiedt JJA, Dambuza and
Gorven AJJA
Heard:
11 March 2015
Delivered:
30 March 2015
Summary:
Appeal against dismissal of an
exception – a plea of lack of locus standi in an interlocutory
application raised as a point
in limine – dismissal of
exception not appealable - judgment not finally determinative of the
rights of the parties.
ORDER
On
appeal from:
Limpopo
High
Court, Thohoyandou (Mpshe AJ sitting as court of first instance):
1
The matter is struck off the roll.
2 Each party is
ordered to pay its own costs.
JUDGMENT
Dambuza
AJA (Ponnan, Shongwe, Majiedt JJA and Govern AJA concurring):
[1]
The first appellant, the Thulamela Municipality (the municipality),
exercises executive jurisdiction in and around the City
of
Thohoyandou, amongst others. The first respondent, Chief Thovhele
Midiavhathu Prince Kennedy Tshivhase (Khosi Tshivhase), is
a
traditional leader who exercises traditional authority over the
Ha-Tshivhase villages located in and around Thohoyandou. He is
assisted in his duties by the second respondent, the Tshivhase
Traditional Council (the council).
[2]
On 23 February 2012 the municipality sold erven 22 and 26 Thohoyandou
IA to Valuline (Pty) Ltd for R579 150 each. The properties
were
transferred to Valuline on 11 June 2012 by virtue of Deeds of Grant.
On the same day two other properties, erven 21 and 27
Thohoyandou IA
were also transferred by the Registrar of Deeds to Valuline.
[3]
On 18 February 2013, Khosi Tshivhase and the council launched an
application (the main application) in the Limpopo High Court
seeking
to have reviewed and set aside the decisions by the municipality to
alienate the properties. The grounds of review were,
amongst others,
that the decisions to alienate the properties were unconstitutional,
illegal, arbitrary, irrational, unfair, inequitable,
unreasonable,
were taken without consultation or authorisation and were based on
inaccurate or wrong information.
[4]
The municipality did not timeously file its answering affidavit to
the main application. Khosi Tshivhase and the council also
sought
from the municipality and the municipal manager, in terms of rule 53
of the Uniform Rules of court, the record relevant
to the decisions
to alienate the properties. When the municipality failed to furnish
the required record, they launched an interlocutory
application to
compel the municipality to produce it. The municipality then filed
two sets of affidavits, one in opposition to
the main application and
one in opposition to the interlocutory application. In both, the
municipality challenged, in limine, Khosi
Tshivhase and the council’s
locus standi. It contended that they had an obligation to prove on
the papers that they were
traditional leaders as provided in the
Traditional Leadership and Governance Framework Act 41 of 2003
, as
well as the Limpopo Traditional Leadership and Institutions Act 6 of
2005. It challenged them to produce the government gazette
in which
they were recognised by the Premier of Northern Limpopo as
traditional institutions. It was alleged on behalf of the
municipality that Khosi Tshivhase’s claim to traditional
leadership was rejected by the Nhlapo Commission which was
established
by former President Thabo Mbeki, in October 2004, to
determine the traditional leadership of the Venda people, amongst
others.
Regarding the merits of the application, the municipality
pleaded that the properties in question did not fall under the
jurisdiction
of Khosi Tshivhase and the council.
[5]
The issue of locus standi, as raised in the interlocutory
application, was heard before Mpshe AJ who considered the point in
limine as an exception and dismissed it. He made no order as to
costs. It is against that order that the municipality appeals.
[6]
Although not raised by any of the parties in the appeal, prior to the
hearing of the appeal counsel were asked to address the
issue whether
the order of the court a quo was appealable. Counsel for the
municipality submitted that the dismissal of the exception
was
appealable. The argument, on behalf of the municipality was based on
an understanding that the order of the court a quo was
a
pronouncement on the rights of Khosi Tshivhase and the council to
institute the application and was thus finally dispositive
of that
issue.
[7]
The dismissal of an exception, save an exception to jurisdiction,
does not finally dispose of the issue raised by the exception
and is
not appealable.
[1]
In
Maize
Board v Tiger Oats Ltd
&
others,
[2]
Streicher JA referred with approval to the following remarks by
Schutz JA in
Cronshaw
& another v Fidelity Guards Holdings (Pty) Ltd:
[3]
‘
The
question is intrinsically difficult, and a decision one way or the
other may produce some unsatisfactory results. There has
to be a
rule, however, and that rule was laid down by not later than the
Pretoria Garrison
case
[Pretoria Garrison Institutes v
Danish Variety Products (Pty)
Ltd
1948 (1) SA 839
(A)]. It is, as stated by Schreiner JA (at 870) that:
“…
a
preparatory or procedural order is a simple interlocutory order and
therefore not appealable unless it is such as to ‘dispose
of
any issue or any portion of the issue in the main action or suit’,
or which amounts, I think, to the same thing, unless
it irreparably
anticipates or precludes some of the relief which would or might be
given at the hearing.’”
Streicher
JA concluded (para 14): ‘. . . it now has to be accepted that a
dismissal of an exception (save an exception to
the jurisdiction of
the Court), presented and argued as nothing other than an exception
does not finally dispose of the issue raised
by the exception and is
not appealable’. In arriving at this conclusion Streicher JA
stated that the order made was capable
of being reconsidered and that
the decision on exception was not the final word on the point. He
thus expressed the view that laying
down that general principle would
‘create certainty and accordingly be in the best interests of
litigating parties’.
On the strength of Maize Board, it is
plain that the order of Mpshe AJ was not appealable. But that is not
the end of the matter.
[8]
A further difficulty that arises in this case was raised with counsel
for Khosi Tshivhase and the council. This relates to the
relief
sought in the main application: the review and setting aside of the
decisions to alienate the properties. It is evident
that, even if
obtained, the relief sought would be ineffective. This is because the
properties in question were transferred to
Valuline in 2012. When
Khosi Tshivhase and the council launched the main application
transfer of the properties or the rights thereto
to Valuline, had
long been completed. It thus can hardly assist Khosi Tshivhase and
the council to now challenge the administrative
decisions that
preceded the registration and transfer of the property into the name
of Valuline. That is so because in
Legator
McKenna Inc & another v Shea & others
2010
(1) SA 35
(SCA) para 22, this court accepted that the abstract theory
of transfer applies to immovables as well. In the light thereof
it appears to me that the main application may well be academic. For
that reason, I am of the view that although the order of Mpshe
AJ was
not appealable, Khosi Tshivhase and the council may have misconceived
their relief in the main application. In those circumstances
the
appropriate costs order is that each party should pay its own costs.
[9]
Consequently I make the following order:
1
The matter is struck off the roll.
2
Each party is to pay its own costs.
______________
N DAMBUZA
Acting
Judge of Appeal
APPEARANCES
For
Appellants: G J Diamond
Instructed by:
Khathutshelo A
Mainganye Attorneys, Thohoyandou
Webbers,
Bloemfontein
For
First and Second Respondent: Lebala SC with EM Baloyi -Mere
Instructed
by:
Anton
Ramaano Attorneys, Thohoyandou
Matsepes,
Bloemfontein
[1]
D
E Van Loggerenberg SC (2014)
Erasmus
Superior Courts Practice;
Revision
Service 45 at B1-152.
[2]
Maize
Board v Tiger Oats Ltd
&
others
2002 (5) SA 365
(SCA) at 373.
[3]
Cronshaw
& another v
Fidelity
Guards Holdings (Pty) Ltd
[1996] ZASCA 38
;
1996
(3) SA 686
(A) at 690 D-G.