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[2023] ZAFSHC 502
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Mahapane and Others v Mohokare Local Municipality and Others (6308/2022) [2023] ZAFSHC 502 (21 December 2023)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE STATE
DIVISION, BLOEMFONTEIN
Case No:
6308/2022
Reportable: YES/NO
Of Interest to other
Judges: YES/NO
Circulate to
Magistrates: YES/NO
In
the matter between:
PULE
MAHAPANE
First Applicant
TEBOHO
MOCHECHEPA
Second Applicant
THABISO
EMMANUEL NAI
Third Applicant
TSHEPO
NOVEMBER
Fourth Applicant
SOUTH
AFRICAN MUNICIPAL WORKERS UNION
Fifth Applicant
and
MOHOKARE
LOCAL MUNICIPALITY
First Respondent
SPEAKER
OF THE COUNCIL OF MOHOKARE
LOCAL
MUNICIPALITY: MR R J THULO
Second Respondent
MAYOR
OF MOHOKARE LOCAL MUNICIPALITY:
MR
ZINGESI MGAWULI
Third
Respondent
MOLATELO
JOHANNES KANWENDO
Fourth Respondent
PHAKAMISA
DYONASE
Fifth Respondent
MEC
FOR THE FREE STATE DEPARTMENT OF
CO-OPERATIVE
GOVERNANCE AND TRADITIONAL
AFFAIRS
Sixth Respondent
CORAM:
HEFER AJ
HEARD
ON
:
26 OCTOBER 2023
DELIVERED
ON:
21
DECEMBER 2023
[1]
Applicants launched an application under case number 6308/2022,
inter
alia
for reviewing and setting aside the First Respondent’s
decision to appoint the Fourth Respondent to the position of the
Municipal
Manager and declaring such appointment unlawful and/or
irregular and/or
ab initio
void and/or setting aside such
appointment.
[2]
Subsequent to such application being launched, First to Fourth
Respondents filed a notice in terms of
Rule 30(1) together with Rule
30A to the effect that the Notice of Motion in the matter is deemed
to be an irregular step in that:
“
1.
The Applicant applies, amongst others, for the review and setting
aside
of the First Respondent’s decision to appoint the Fourth
Respondent to the position of Municipal Manager.
2.
If the impugned action is an administrative action, as defined in
the
Promotion of Administrative Justice Act 3 of 2000 (the PAJA), the
application must be made in terms of Section 6 of the PAJA.
3.
The impugned action that forms the subject matter of the Applicants’
review is an administrative action.
4.
The application is not made in terms of Section 6 of the PAJA.”
[3]
After the Applicants have failed to remove the abovementioned cause
of complaint within the stipulated
time, the First to Fourth
Respondents (herein later referred to as “
Respondents”
),
launched the present application in terms of which an order is sought
in terms of which the Notice of Motion, alternatively the
application
itself, be set aside, alternatively struck through.
[4]
The Fifth Applicant, being the South African Municipal Workers Union,
opposes the Rule 30 application.
Application
of Rule 30
:
[5]
In
SA
Metropolitan Lewensversekeringsmaatskappy Bpk v Louw N.O.
[1]
,
Fleming J stated the object of Rule 30(1) as follows:
“
I
have no doubt that rule 30(1) was intended at the procedure whereby a
hindrance to the future conducting of the litigation, whether
it is
created by a non-observance of what the Rules of Court intended or
otherwise, is removed.”
[6]
“
In
terms of rules 18(12), 22(5) and 24(5) the pleadings referred to in
these subrules are, on non-compliance with the provisions
of the rule
concerned, deemed to be an irregular step and the opposite party
‘shall be entitled to act in accordance with
rule 30”
.
[2]
[7]
In
Singh
v Vorkel
[3]
,
it was held that Rule 30 applies only to irregularities of form and
not to matters of substance.
[8]
In
SA
Metropolitan Lewensversekeringsmaatskappy Bpk v Louw NO
supra
,
it was also held that “
proof
of prejudice is a prerequisite to success in an application in terms
of rule 30(1)”
.
[4]
[9]
Mr
Du Preez
, appearing on behalf of the Fifth Applicant,
argued that there is no requirement in law that a party is obliged to
plead the legislation
on which it relies.
[10]
Mr
Snellenburg
SC
,
appearing on behalf of First to Fifth Respondents, in this regard
referred me to the matter of
Bato
Star Fishing (Pty) Ltd v Minister of Environmental Affairs
[5]
where O’Regan J said as follows:
“
Where
a litigant relies upon a statutory provision, it is not necessary to
specify it, but it must be clear from the facts alleged
by the
litigant that the section is relevant and operative. …
However, it must be emphasized that it is
desirable
(own emphasis) for litigants who seek to review administrative action
to identify clearly both the facts upon which they base their
cause
of action, and the legal basis of their cause of action.”
[6]
[11]
Of importance is that in the
Bato
Star
-matter,
the Constitutional Court further held that it was clear that PAJA was
of application to the matter and that the matter
could not be decided
without reference to PAJA. To that extent, according to the
Constitutional Court, neither the High Court nor
the SCA considered
the claims made by the Applicant in the context of PAJA, and in that
regard both Courts therefore erred. The
Constitutional Court further
took into consideration “
although
the applicant did not directly rely on the provisions of PAJA in its
Notice of Motion or founding affidavit, it has in
its further written
argument identified the provisions of PAJA upon which it now
relies”
.
[7]
On that basis the Constitutional Court proceeded to adjudicate the
matter.
[12] Of
importance is that the Constitutional Court used in particular the
word “
desirable”
which is indicative thereof as
correctly pointed out by Mr
Du Preez
that a party is not
obligated in this regard.
[13]
In further support of his argument, Mr
Snellenburg
SC
referred me to a matter of the Bophuthatswana Supreme Court in
Deputy
Minister of Tribal Authorities and Another v Kekana
[8]
.
This matter however cannot be used as authority for the submission
that a “
defect
going to the root of a claim can be attacked under Rule 30
”
whereas these words were merely used
obiter
by Van der Merwe J where he stated as follows:
“
I
can think of no reason and principle why a defect going to the root
of the claim, cannot be attached under this rule”
.
[9]
[14] More
importantly, Van der Merwe J further held as follows:
“
In
any event in the present proceedings applicants attack the form and
not the root of the respondent’s cause. Applicants
claim that
this cause should be in the form of motion proceedings under rule 53
and not in the form of a combined summons. To that
extent applicants’
claim that the combined summons is an irregular or improper
proceeding in respondent’s cause ………….....
I am of the opinion that the applicants’ submissions are
correct and that they adopted the correct procedure by approaching
the court in terms of rule 30.”
[10]
[15]
In
Secretary
for the Interior v Scholtz
[11]
,
the High Court also followed the same route in setting aside as an
irregular proceeding, a summons by reason of the fact that
the
complaint by the Respondent was in the nature of a review and the
proper procedure accordingly was by way of Notice of Motion
in terms
of Rule 53.
[16] Mr
Snellenburg SC
referred me to numerous authorities in support
of his submission that the present review as launched by the
Applicants, needs to
be dealt with as a review in terms of PAJA and
not a legality review as it presently stands. Mr
Du Preez
on
the other hand, maintains that the decision which the Applicants seek
to review does not constitute administrative action as
defined by
PAJA. Although Mr
Snellenburg SC
appears to be correct in his
submissions in this regard, in view of my finding herein, I do not
deem it necessary to make a finding
in this regard.
[17]
In
Mbuthima
and Another v Walter Sisulu University and Others
[12]
in discussion the distinction between a legality review and a review
in terms of PAJA, Toni AJ said as follows:
“
While
the above two types review appear to be conjoined twins in that they
are both the cornerstone of our hallowed and time-honoured
principle
of the rule of law, they are
in
substance
not.”
[13]
(own
emphasis)
[18] Both the
legality review as well as a review in terms of PAJA are however in
its form “
conjoined twins”
. Therefore, the present
attack by the First to Fourth Respondents, is in respect of the
substance and not the form and can therefore
not be upheld in terms
of Rule 30, whereas both the Notice of Motion as well as the
application itself do not constitute an irregular
step.
[19] Mr
Du
Preez
asked that in the event of the Rule 30 application being
dismissed, a punitive cost order should be granted against the
Respondents.
I do, however, not consider there to be any basis for a
cost order to be granted against the Respondents on a punitive basis.
ORDER
:
Therefore, I make the
following order:
1.
The application in terms of Rule 30(1) is
dismissed.
2.
First to Fifth Respondents are to pay the
costs of the Rule 30(1) application, jointly and severally, payment
by the one to absolve
the other.
J J F HEFER, AJ
Appearances
on behalf of the Fifth Applicant:
Adv
T du Preez
Instructed
by:
Kramer
Weihmann Incorporated
Bloemfontein
On
behalf of the First to Fifth Respondents:
Adv
N Snellenburg SC
Instructed
by:
Peyper
Attorneys
Bloemfontein
[1]
1981 (4) SA 329
(O) at 333G - H
[2]
Erasmus, Superior Court Practice, 2
nd
Edition, Vol. 2, p. D1-351.
[3]
1947 (3) SA 400
(C) at 406
[4]
At p. 333G – 334G.
[5]
2004 (4) SA 490 (CC)
[6]
p. 507, par. [27]
[7]
Par. [26]
[8]
1983 (3) SA 492 (BSC)
[9]
p. 496.
[10]
p. 496B – C.
[11]
1970 (2) SA 633
(CPD)
[12]
2020 (4) SA 602 (ECN)
[13]
p. 612, par. [36]