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[2024] ZAFSHC 37
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Acting Municipality Manager of the Metsimaholo Local Municipality and Others v Democratic Alliance (6192/2023) [2024] ZAFSHC 37 (15 February 2024)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: 6192/2023
Reportable:
YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
In
the matter between:
THE
ACTING MUNICIPAL MANAGER OF THE METSIMAHOLO
LOCAL
MUNICIPALITY
1
st
Applicant
FUSI
JOHN MOTLOUNG
2
nd
Applicant
HELGARDT
MULLER N.O.
3
rd
Applicant
EHEILA
MARTINA HENDRIKA MULLER N.O.
4
th
Applicant
HELGARDT
MULLER N.O.
5
th
Applicant
CHANTE
GAIL COETZEE N.O.
6
th
Applicant
CORRIE
PLOOS VAN AMSTEL N.O.
7
th
Applicant
EXECUTIVE
MAYOR OF THE METSIMAHOLO
LOCAL
MUNICIPALITY
8
th
Applicant
COUNCIL
OF THE METSIMAHOLO LOCAL MUNICIPALITY
9
th
Applicant
THE
SPEAKER OF THE COUNCIL OF THE
METSIMAHOLO
LOCAL MUNICIPALITY
10
th
Applicant
THE
METSIMAHOLO LOCAL MUNICIPALITY
11
th
Applicant
LUCAS
FISCHER
12
th
Applicant
and
DEMOCRATIC
ALLIANCE
Respondent
CORAM:
LOUBSER, J
HEARD
ON:
9 FEBRUARY
2024
JUDGEMENT
BY:
LOUBSER, J
DELIVERED
ON:
15 FEBRUARY 2024
[1]
This is an application for leave to appeal against an order handed
down by this Court restraining
the Applicants from making any further
payments to the Lizelle Sake Trust (the 3
rd
to 6
th
Applicants) pending the final adjudication of a review application
launched by the Respondent. The said Trust was also ordered
to return
to the Metsimaholo Local Municipality the full quantum of any funds
already received from the Municipality, pending the
final outcome of
the review proceedings. The majority of the Applicants for leave are
the Municipality and its relevant functionaries.
The 7
th
Applicant is the arbitrator in arbitration proceedings that were held
between the Trust and the Municipality, and he is not applying
for
leave to appeal.
[2]
When the application for leave came before
the Court, the Court expressed its concern whether leave
should be
granted in instances, like the present, where the intended appeal is
directed against an interim order that was handed
down pending the
final outcome of a future review. Counsel appearing for the
respective parties were consequently requested to
address the Court
on this issue, and many submissions were made in the process on
behalf of the parties.
[3]
Now generally, Courts are reluctant to hear appeals against interim
orders that have no final
effect and that are, in any event,
susceptible to reconsideration by a Court when the final relief is
determined.
[1]
That, however, is not an inflexible rule. What best serves the
interest of justice dictates whether an appeal against an
interim
order should be entertained. In the instances where leave to appeal
in relation to interim orders were in fact granted,
it was made clear
that the operative standard is the interest of justice.
[2]
[4]
In their grounds of appeal, the Applicants do not pertinently rely on
the interests of justice,
although this aspect was raised on their
behalf when submissions were made at the hearing of the application.
[5]
I am not persuaded that it would be in the interests of justice to
grant leave to appeal at this
stage, simply because the appeal would
only result in the piecemeal appellate disposal of the issues in
question.
[3]
The interim order did not even dispose of a portion of the relief
claimed in the review. The issues will be finally adjudicated
in the
review proceedings, and either party will then have the right of
appeal again. This is so since the present order does not
finally
dispose of any relief claimed by the Respondent.
[6]
It was submitted on behalf of the Trust that the order directing it
to pay back the funds to the
Municipality, is final in its effect and
therefore appealable. I do not agree with this submission. This order
was also made pending
the review, and in any event, should the review
be adjudicated in favour of the Trust, the Municipality will have to
pay the funds
back to the Trust.
[7]
On behalf of the Municipality and its functionaries it was submitted
that leave to appeal should
be granted because this Court had,
inter
alia
, ignored the principles pertaining to the separation of
powers when it determined the merits of the interim relief sought.
This
is one of the reasons why granting leave would be in the
interest of justice, it was argued. Again, I do not agree with this
submission,
because that very point will certainly be raised in the
review proceedings. To grant leave now, will only offend against the
jurisprudence
of the courts, in that it would result in a piecemeal
disposal of the issues on appeal.
[8]
Section 17(1)(a) of the Superior Courts
Act
[4]
provides that leave to appeal may only be granted where the appeal
would have a reasonable prospect of success or where there is
some
other compelling reason why the appeal should be heard. In
Ramakatsa
and Others v African National Congress and Others
[5]
the Supreme Court of Appeal indicated that compelling reasons to
entertain an appeal would include an important question of law
or a
discreet issue of public importance that will have an effect on
future disputes. In the present application for leave, the
appeal
would certainly not involve an issue of public importance that will
have an effect on future disputes.
[9]
In the premises, I am not persuaded that
leave to appeal should be granted. As for costs, I find no
compelling
reasons why a punitive costs order should be made. I make the
following order:
1. The application for
leave to appeal is dismissed with costs, including the costs of two
counsel.
P.
J. LOUBSER, J
For
the 1
st
, 2
nd
, 8
th
, 9
th
,10
th
,
11
th
and 12
th
Applicants:
Adv.
M. Koza SC, with him Adv. R. M. Mahlatsi
Instructed
by:
Raphela
Attorneys Inc. Santon
c/o
Fixane Attorneys, Bloemfontein
For
the 3
rd
, 4
th
, 5
th
and 6
th
Applicants:
Adv.
J. G. Smit
Instructed
by:
NLA
Legal Inc. Santon
c/o
E.G. Cooper Majiedt Inc. Bloemfontein
For
the Respondent:
Adv.
A. Stein SC, with Adv. D. Sive
Instructed
by:
Minde
Schapiro & Smith Inc., Belville
c/o
Symington & De Kok, Bloemfontein
[1]
National
Treasury and Others v Opposition to Urban Tolling Alliance 2012(6)
SA 223 (CC), par 24.
[2]
Ibid
par 25, also Economic Freedom Fighters v Gordhan 2020(6) SA 325 (CC)
at para 50
[3]
Cilliers
N.O. and Others v Ellis
[2017] ZASCA 13
at paras 11 to 19
[4]
Act 10
of 2013
[5]
[2021]
ZASCA 31