IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION, MTHATHA)
In the matter between:- Case No. 5244/2021
SONWABO CLEOPUS MAMPOZA Applicant
and
KING SABATA DALINDYEBO LOCAL MUNICIPALITY First Respondent
THE SPEAKER OF COUNCIL, KING SABATA Second Respondent
DALINDYEBO LOCAL MUNICIPALITY
THE EXECUTIVE MAYOR, KING SABATA Third Respondent
DALINDYEBO LOCAL MUNICIPALITY
THE MUNICIPAL MANAGER, KING SABATA Fourth Respondent
DALINDYEBO LOCAL MUNICIPALITY
___________________________________________________________________
JUDGMENT ON APPLICATION FOR LEAVE TO APPEAL
___________________________________________________________________
2
BANDS J:
[1] The applicants seek leave to appeal against the whole of my judgment and
order granted in favour of the respondents, handed down on 18 July 2023.
[2] The applicant, an employee of the first respondent whose designation within
the municipality is in dispute between the parties, sought an order declaring, unlawful,
the first respondent’s council resolution, VORDCM 887/06/21 (“ the resolution”),
passed on 30 June 2021, for its alleged want of compliance with rule 27 of the standing
rules for the meetings of council and its committees (“the standing rules”).
[3] The applicant, in bringing the application, acts in his own interest.
[4] He complains that the resolution, which rescinds
1 resolution MC127/07/08, has
the effect of unilaterally and arbitrarily varying his contract of employment with the first
respondent and accordingly, that he has a direct and substantial interest in the
outcome of the proceedings. The legal basis upon which the applicant relies for his
relief is based on the provisions of section 21(1)(c) of the Superior Courts Act 10 of
2013 (“the Act”), having repealed and replaced its predecessor, section 19(1)(a)(iii) of
the Supreme Court Act 59 of 1959.
1 This too being an issue in dispute between the parties. The respondents contend that whilst
the Municipal Council was, at the time of passing resolution VORDCM 887/06/21, under the
mistaken impression that resolution MC127/07/08 (which it purported to rescind) had been
taken by it, such resolution was in fact a resolution of the Mayoral Committee. A ccordingly,
the respondents argue that a resolution which does not exist is incapable of rescission.
3
[5] In the aforesaid judgment, I found at paragraph [16] that not only had the
applicant failed to establish that he holds the position of Senior Communications
Officer, as contended for by him, but that he had failed to establish that resolution
VORDCM 887/06/21 has the effect of unilaterally and arbitrarily varying his contract of
employment with the first respondent.
[6] For the above reasons, I concluded that the applicant lacked the necessary
interest in the proceedings, within the context of section 21(1)(c) of the Act, and I
dismissed the application. Dissatisfied with this outcome, the applicant launched the
present application.
[7] The test to be applied in applications for leave to appeal finds legislative
expression in section 17 of the Act, which provides that leave to appeal may only be
granted where the judge concerned is of the opinion that the appeal would have a
reasonable prospect of success, or that there is some other compelling reason why
the appeal should be heard, including confl icting judgments on the matter under
consideration.
[8] Whilst the applicant’s notice of application for leave to appeal records at
paragraph [9] that “there are reasonable prospects of success on appeal and there is
also a compelling reason why the appeal should be heard”, no reasons were
advanced, neither in the notice of application nor in argument, as to the applicability
of section 17(1)(a)(ii) of the Act to the present matter.
4
[9] Accordingly, properly considered, the applicant brings his application in terms
of section 17(1)(a)(i) of the Act only.
[10] The Supreme Court of Appeal has on more than one occasion had the
opportunity to consider what constitutes a reasonable prospect of success, which is
stated to be as follows:2
“What the test of reasonable prospects of success postulates is a dispassionate decision,
based on the facts and the law, that a court of appeal could reasonably arrive at a conclusion
different to that of the trial court. In order to succeed, therefore, the appellant must convince
this court on proper grounds that he has prospects of success on appeal and that those
prospects are not remote, but have a realistic chance of succeeding. More is required to be
established than that there is a mere possibility of success, that the case is arguable on appeal
or that the case cannot be categorised as hopeless. There must, in other words, be a sound,
rational basis for the conclusion that there are prospects of success on appeal.”
[11] It is against this backdrop that this application is adjudicated.
[12] The applicant rel ies on eight grounds of appeal, each of which are dealt with
below.
First ground of appeal
[13] The applicant, mistakenly, contends that the issue of his legal standing (or lack
thereof) was raised mero motu, for the first time , in my judgment, without having
2 S v Smith 2012 (1) SACR 567 (SCA) para 7.
Maphana and Another v S (174/2017) [2018] ZASCA 8 (1 March 2018).
Ramakatsa and Others v African National Congress and Another (724/2019) [2021] ZASCA
31 (31 March 2021) at para 10.
5
afforded the parties an opportunity to canvass this aspect in argument . For this
reason, the applicant, in essence, attacks: (i) my finding that the applicant lacked the
necessary interest in the proceedings, within the context of section 21(1)(c) of the Act;
and (ii) my resultant dismissal of the application on this basis.
[14] The above contention is not only factually incorrect, but it is also misguided.
[15] The issue of the applicant’s lack of interest in the proceedings was identified
and pertinently raised by the respondents’ counsel in argument, based on the factual
averments on the papers before court. To this end, approximately two- thirds of the
respondents’ written heads of argument filed in the main application were dedicated
to this aspect, under various headings.
[16] To succeed in obtaining declaratory relief, the applicant had to establish that he
has a legally recognised interest, that being a direct and substantial interest, in the
order sought.
3 It is only once such an interest has been established that the court can
then enter the fray and determine whether to exercise its discretion in favour of
granting the relief sought by the applicant. Paragraphs [4], [5], and [19] to [23] of my
judgment dealt pertinently with section 21(1)(c) of the Act and the two-stage approach
to be adopted under the subsection as set out by the Supreme Court of Appeal in
3 Trinity Asset Management (Pty) Ltd & others v Investec Bank Ltd & others 2009 (4) SA 89 (SCA) para
16; (574/07) [2008] ZASCA 158. Cordiant Trading CC v Chrysler Financial Services (Pty) Ltd 2005 (6)
SA 205 (SCA) paras 15 to 18; (237/2004) [2005] ZASCA 50. Illovo Opportunities. Partnership #61 v
Illovo Junction Properties (Pty) Ltd & others (490/13) [2014] ZASCA 119. Muldersdrift Sustainable
Development Forum v Mogale City (20424/14) [2015] ZASCA 118 (11 September 2015) at para 16.
6
Cordiant Trading CC v Chrysler Financial Services (Pty) Ltd,4 which I need not repeat
herein.
[17] The applicant loses sight of his case before court.
[18] As stated, the entire basis upon which he claims to have sufficiency of interest
in the order sought is his contention that the resolution, which he seeks to set aside,
has the effect of unilaterally and arbitrarily varying his contract of employment between
him and the first respondent. In what manner he contends this to be so 5 is not dealt
with by the applicant on the papers.
[19] Perhaps more fundamentally, however, is that it is common cause that: (i) the
issue of the position held by the applicant, as contended for by him, was a factual
dispute on the papers before the court in prior litigation between the parties, which
culminated in the granting of an order by consent on 27 February 2014; (ii) the existing
order of court regulates the applicant’s remuneration and benefit package with the first
respondent; (iii) the applicant has historically been, and is at present continues to be,
remunerated in accordance with the terms of such order (notwithstanding the passing
of the resolution which the applicant seeks to set aside); and (iv) the parties are bound
(and consider themselves to be bound) by the order. Leaving aside the dispute on the
papers as to whether the position held by the applicant is a managerial position, the
applicant, on his own version at paragraph [18] of his founding affidavit, asserts that
the implementation of the order of court effectively meant that he “ was remunerated
4 2005 (6) SA 205 (SCA).
5 Other than in title.
7
as a manager according to the spirit and purport of the council resolution
127/07/2008”. This position remains unchanged, albeit that the nomenclature for the
salary grade which is applicable to the applicant in terms of the order of court has
since changed from “Grade 3” following the implementation of the Task Grade System
to that of “Task Grade 15”.
[20] The applicant repeatedly attempted to detract from this aspect in his replying
affidavit, instead maintaining that the crisp issue for determination is whether the
resolution was passed in contravention of the provisions of standing rule 27 and as
such whether it ought to be declared unlawful. To consider this aspect without first
establishing the existence of the necessary condition precedent for the exercise of my
discretion, would be to ignore the trite legal principles to which I have referred.
[21] Moreover, I am mindful of the words of Willis JA, writing for the Supreme Court
of Appeal, in Muldersdrift Sustainable Development Forum v Mogale City
6 where he
stated as follows at paragraph [10] thereof:
“…one cannot snatch a remedy from the air. In a unanimous judgment of this court in
Oudekraal Estates (Pty) Ltd v City of Cape Town & others Howie P and Nugent JA,
referred with approval to the following passage in Wade’s Administrative Law:
‘The truth of the matter is that the Court will invalidate an order only if the right remedy is sought
by the right person in the right proceedings and circumstances. The order may be hypothetically
a nullity, but the Court may refuse to quash it because of the plaintiff’s lack of standing, because
he does not deserve a discretionary remedy, because he has waived his rights, or for some
other legal reason.’
Although the passage deals with an administrative decision it would apply equally, in
my view, to the right to claim a declaratory order under s 21(1)(c).”
6 (20424/14) [2015] ZASCA 118 (11 September 2015).
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[22] Accordingly, even if the applicant was correct in his assertion that the resolution
was passed in contravention of the provisions of standing rule 27 (in respect of which
I made no finding), it does not, on its own, entitle the applicant to the relief sought in
the absence of adequate standing.
[23] On a proper application of the law to the facts of the present matter, and for the
reasons set out in the main judgment, I do not think that there are reasonable
prospects that another court will come to a different conclusion.
Second ground of appeal
[24] The applicant’s second ground of appeal takes issue with my factual finding
that the applicant failed to establish that he holds the position of Senior
Communications Officer and accordingly, that I was mistaken in my finding that he had
failed to establish that the resolution “had any bearing on him.”
[25] This ground of appeal is predicated on what the applicant terms my disregard
for the evidence placed before me “ including annexure “SCM6” to the founding
affidavit and annexure “NP9” to the answering affidavit which documents clearly shows
that the respondents recognises that the applicant is a Senior Communications Officer
and that their denial of this position is just contradictory, not real and genuine, but
farfetched and untenable.”
[26] Various issues arise.
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[27] The reason for my conclusions regarding: (i) the position held by the applicant;
and (ii) his failure to establish that resolution VORDCM 887/06/21 had the effect of
unilaterally and arbitrarily varying his contract of employment with the first respondent,
are dealt with in paragraphs [6] to [17] of my judgment. The disputes of fact in respect
of these issues, in the absence of oral evidence, fell to be resolved by the application
of the Plascon-Evans
7 rule; upon which approach, the findings to which I arrived were
based.
[28] Even if the applicant had established that he holds the position of Senior
Communications Officer, which, on a proper consideration of the allegations contained
in the respective affidavits, he did not; this would not have assisted him in establishing
legal standing given the existing order of court, to which I have referred.
[29] This conclusion is the end of the matter, and it would ordinarily be unnecessary
and irrelevant to go further. Having said that, I feel compelled to say something about
annexures “SCM6” and “NP9” given the applicant’s reliance thereon, coupled with the
fact that I did not pertinently deal with these annexures in my main judgment.
[30] Without belabouring the point, annexures “SCM6” and “NP9” are documents
emanating from the offices of the first respondent in which the applicant is referred to
as the Senior Communications Officer . Specific attention was not drawn to the
portions of the annexures , upon which the applicant’s counsel placed reliance in
argument, by either of the parties on affidavit. Annexure “SCM6” was attached by the
7 Plascon-Evans Paints v Van Riebeeck Paints 1984 (3) 623 (AD).
10
applicant to his founding papers for the purposes of illustrating various salary grades
mooted by the applicant and the first respondent during settlement negotiations,
including that contained in a proposed agreement of settlement, dated 23 March 2021,
by the first respondent. The first respondent, in its answering affidavit, highlights that
in an attempt to cease the hostilities between the parties and to put an end to the
seemingly endless litigation, it offered to settle the dispute on the terms contai ned in
annexure “SCM6”, which the applicant did not accept, and which offer has since
lapsed.
[31] “NP9” is communication, dated 7 December 2018, addressed to the applicant
from the first respondent, which predates the proposed deed of settlement, “SCM6”,
by some two years and four months. “NP9” was attached to the respondents’
answering affidavit and deals with discussions between the parties in respect of the
applicant’s salary grade. The applicant, in reply, instead of placing reliance on the
reference to him as the Senior Communications Offi cer in the said correspondence,
contends that the content of the respondents’ affidavit which deals with “NP9” should
be disregarded as it constitutes hearsay evidence; alternatively, it is irrelevant. It is
not open to the applicant to denounce reliance on the content of annexure “NP9” on
affidavit and thereafter seek to attach weight to it in argument. Such positions are
diametrically at odds with each other. Had the applicant sought to rely on a portion of
“NP9”, it was incumbent upon him to raise it pertinently to enable the respondents’ an
opportunity to respond. This the applicant failed to do.
[32] In motion proceedings, the affidavits constitute both the pleadings and the
evidence. It is well established, regard being had to the function of affidavits, that it is
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not open for a party to merely annex documents to his/her affidavit and to request the
court to have regard to it. “What is required is the identification of the portions thereof
on which reliance is placed and an indication of the case which is sought to be made
out on the strength thereof.”
8 On this score, the Supreme Court of Appeal in Minister
of Land Affairs and Agriculture and Others v D & F Wevell Trust and Others ,9 stated
as follows as paragraph [43]:
“It is not proper for a party in motion proceedings to base an argument on passages in
documents which have been annexed to the papers when the conclusions sought to
be drawn from such passages have not been canvassed in the affidavits. The reason
is manifest ─ the other party may well be prejudiced because evidence may have been
available to it to refute the new case on the facts. The position is worse where the
arguments are advanced for the first time on appeal. In motion proceedings, the
affidavits constitute both the pleadings and the evidence: Transnet Ltd v
Rubenstein, and the issues and averments in support of the parties’ cases should
appear clearly therefrom. A party cannot be expected to trawl through lengthy
annexures to the opponent’s affidavit and to speculate on the possible relevance of
facts therein contained. Trial by ambush cannot be permitted.”
[33] Apart from the respondents’ persistent denial in respect of the applicant’s
contention as to the position held by him, which, as stated, was not dealt with by the
applicant in reply, the respondents explain elsewhere in their answering affidavit that
the applicant, given his persistent insistence over the years, has, contrary to the
correct position, created confusion amongst the functionaries within the first
respondent regarding the position held by him. This on its own, offering an explanation
8 Swissborough Diamond Mines v Government of the RSA 1999 (2) SA 279 (TPD).
9 2008 (2) SA 184 (SCA).
12
for the referral to the applicant as the Senior Communications Officer in the said
annexures.
[34] Accordingly, and for the reasons stated, particularly having regard to what I
have stated regarding the existing order of court, I am of the view that there are no
reasonable prospects that another court will come to a different conclusion.
Third ground of appeal
[35] The applicant contends that I erred in finding that the resolution had no bearing
on the applicant despite that it, on the applicant’s version, dealt with a position that the
applicant was occupying.
[36] T his ground of appeal constitutes a duplication of the prior two grounds of
appeal. For the reasons articulated, I do not think that there are reasonable prospects
that another court will come to a different conclusion.
Fourth ground of appeal
[37] In essence it is contended that I erred by “ disregarding the evidence placed
before the court as annexure “SCM3” to the replying affidavit.
[38] “SCM3” are the minutes of a meeting of the Mayoral Committee, held on 23
June 2021, in which it is recorded, when dealing with a report to the mayoral committee
regarding the rescission of resolution 127/07/08, that the applicant had been
13
requested to recuse himself from the meeting “ as he had (sic) interest on (sic) the
above matter, even though he did not declare (sic) interest.”
[39] Whilst the ground of appeal itself goes no further than I have set out above, the
argument advanced on behalf of the applicant is that the recordal of the applicant’s
interest, by necessary implication, means that he occupies the position of Senior
Communications Officer. I disagree.
[40] This approach requires me to read words into the minutes which are simply not
there. Their intended import cannot be read in isolation, but rather must be read in the
context in which they were employed. The parties, at the time of the meeting were
engaged in settlement negotiations , having been involved in an ongoing dispute
regarding the position held by the applicant and his remuneration package for some 9
years, resulting in various court proceedings. This on its own is sufficient interest to
request the applicant to recuse himself from the meeting at the relevant time. S uch
interest should not be confused with the necessary interest required for the purposes
of these proceedings, nor does it amount to such. Moreover, it does not stand as proof
of the applicant’s contention that he holds the position of Senior Communications
Officer.
[41] In light of the above, I do not think that there are reasonable prospects that
another court will come to a different conclusion.
Fifth ground of appeal
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[42] This ground of appeal again attacks my finding that the applicant failed to
establish that he has the necessary interest in the proceedings, within the context of
section 21(1)(c) of the Act.
[43] I have dealt with this in detail.
Sixth ground of appeal
[44] Simply put, t he applicant contends that I erred in not accepting that the
resolution would have the effect of downgrading the post of Senior Communications
Officer to a non- managerial post, remunerated at Task Grade 12, which once
implemented would prevent the applicant from claiming any benefits associated with
the post “of a Senior Communications Officer as a Managerial Post.”
[45] The applicant loses sight of the fact that his remuneration is regulated in terms
of the order of court, which remuneration the applicant considers to be that of a
manager according to the spirit and purport of the council resolution 127/07/2008. I
refer to what I have stated in paragraph [19] of this judgment.
[46] Regard being had to the aforesaid, there exist no reasonable prospects that
another court will come to a different conclusion.
Seventh ground of appeal
[47] T he applicant’s seventh ground of appeal, broadly stated, pertains to my finding
that the applicant, at the time of launching the application, was under the mistaken
15
belief that resolution MC127/07/08 was that of the first respondent’s council when it
was instead, a resolution of the mayoral committee. Following the filing of the parties
answering and replying papers, it was undisputed that resolution MC127/07/08 was
that of the mayoral committee.
[48] Essentially, what the applicant contends is that he was not mistaken regarding
the identity of the resolution but was instead misled by the first respondent into
believing that the resolution was that of the first respondent’s council.
[49] There exists no basis on the papers before me upon which I can arrive at the
finding contended for by the applicant. Such finding would in any event take the matter
no further.
Eighth ground of appeal
[50] In light of what I have stated above, it follows that the applicant’s eighth ground
of appeal in respect of the costs of the matter, must fail.
[51] For all the above reasons, I consider that the contemplated appeal against my
dismissal of the application does not enjoy any prospect s of success. It was further
not contended that there exists any other compelling reason why an appeal in the
circumstances of this matter should be heard.
[52] In the result, the following order shall issue:
1. The application for leave to appeal is dismissed with costs.
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________________________________
I BANDS
JUDGE OF THE HIGH COURT
Appearances:
For the applicant: Mr Manana
Instructed by: B Mwelase Attorneys
Suite 319, 3 rd Floor, ECDC Building, Corner of York and
Elliot Street, Mthatha
For the respondents: Mr Bodlani SC
Instructed by: T.L. Luzipho Attorneys
26 Cnr Victoria and Madeira Street
First Floor, Steve Motors Building
Mthatha
Coram: Bands J
Date heard: 26 October 2023
Delivered: 30 January 2024