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[2022] ZAKZPHC 79
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MEC for Co-operative Governance and Traditional Affairs and Another v Umkhanyakude District Municipality and Others (7718/22P) [2022] ZAKZPHC 79 (2 December 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
Case
No: 7718/22P
In
the matter between:
THE
MEC FOR CO-OPERATIVE GOVERNANCE
AND
TRADITIONAL AFFAIRS FIRST
APPLICANT
BAMBA
NDWANDWE
SECOND
APPLICANT
and
UMKHANYAKUDE
DISTRICT MUNICIPALITY FIRST
RESPONDENT
HOWARD
SIHLE NDLOVU SECOND
RESPONDENT
GP
MOODLEY
THIRD
RESPONDENT
CT
KHUMALO FOURTH
RESPONDENT
M
Q MKHWANAZI AND FIFTH
TO
FOURTEEN
OTHERS NINETEENTH
RESPONDENTS
SOLOMON
MKHOMBO
TWENTIETH
RESPONDENT
SF
MDAKA TWENTY
FIRST RESPONDENT
JERICKO
MUSAWAKHE GUMEDE TWENTY
SECOND RESPONDENT
SIYABONGA
ROBSON NTULI TWENTY
THIRD RESPONDENT
INKATHA
FREEDOM PARTY TWENTY
FOURTH RESPONDENT
AFRICAN
NATIONAL CONGRESS TWENTY
FIFTH RESPONDENT
ECONOMIC
FREEDOM FIGHTERS TWENTY
SIXTH RESPONDENT
ORDER
The
following order is granted:
1.
The application for leave to appeal is dismissed with costs, such to
include
the costs of two counsel where so employed.
JUDGMENT
MOSSOP
J:
[1]
This is an application for leave
to appeal against an order granted by me on 20 June 2022 in motion
court. On that day, an urgent
application (the urgent application)
served before me that was brought by the first and second applicants
cited above. They are
not the applicants in this application. The
applicants in this application are the second to nineteenth
respondents in the urgent
application. I shall henceforth refer to
them as ‘the appellants’.
The
application for leave to appeal is opposed by the first and second
applicants and the first, twentieth and twenty first respondents.
The
other respondents have not participated in the application.
[2]
Unfortunately,
the affairs of the Umkhanyakude district municipality (the
municipality) have occasioned the bringing of several
applications in
this court besides the urgent application. The urgent application was
merely one in a seemingly endless stream
of matters having their
origin in the bitterly contested political environment that seems to
characterise the municipality. The
urgent application was preceded by
two earlier applications,
[1]
heard by Chili J and Nkosi J. I shall refer to the application before
Nkosi J as ‘the prior application’. Nkosi J granted
two
orders, one on 18 May 2022 (the first order) and one on 30 May 2022
(the second order). In essence, what was ordered by the
first order
was that, pending the final determination of the prior application,
only the ‘ordinary usual business’
of the municipality
could be conducted. The second order directed that the twentieth to
twenty third respondents should serve as
speaker, mayor, deputy mayor
and municipal manager respectively of the municipality, pending the
final determination of that application.
These orders were apparently
intended to create some stability in the affairs of the otherwise
turbulent municipality.
[3]
After the granting of the first order, a
vote of no confidence in the then office bearers of the municipality
was moved by the appellants
on 13 June 2022. This led to the bringing
of the urgent application, it being contended that this was in
defiance of the provisions
of the first order. An ex tempore judgment
was delivered by me on the day that the application served before me,
namely 20 June
2022. The order that I granted was in the form of a
rule nisi with interim relief and it, inter alia, set aside the
results of
the meeting of the municipality on 13 June 2022. The
return date of the rule that I granted was 3 August 2022, which was
specifically
chosen because it was also the return date of the
earlier applications.
[4]
Assuming
for a moment that the rule nisi that I granted was appealable, it
still not yet having been finalised, the appellants were
required to
lodge an application for leave to appeal by no later than 11 July
2022.
[2]
This was not done. The
application for leave to appeal was received by the registrar of this
court on 6 September 2022.
[3]
It
is accordingly some 41 days out of time.
[5]
Before dealing with this lateness,
something perhaps needs to be said, very briefly, about the delay
between the date upon which
the application for leave to appeal was
received by the registrar and the date upon which argument was heard,
being 29 November
2022. The difficulty that caused the delay was that
counsel originally involved in the matter were so busy it was
virtually impossible
to agree on a date that suited each of them. My
registrar suggested several dates to the parties on which I was
available, none
of which were suitable to counsel. Ultimately, I
instructed my registrar to inform the legal representatives that they
should agree
a date amongst themselves, and I would then make myself
available on that date, whatever it was, provided that it was before
ordinary
court hours. Thus, the matter was finally dealt with at
08h30 on 29 November 2022.
[6]
Reverting to the late delivery of the
application for leave to appeal, condonation for this was sought by
the appellants. This was
done in the form of an affidavit deposed to
by Mr Bhekinkosi Petros Madlopha (Mr Madlopha), who was the seventh
respondent in the
urgent application. It makes for interesting
reading.
[7]
Distilled to its essence, Mr Madlopha
states that the appellants were not satisfied with the order that I
granted and wished to
appeal that order. They immediately advised
their legal representatives of their wishes. However, they were
advised that they should
not bring an application for leave to appeal
as the issues between the warring parties would probably be resolved
on 3 August 2022,
being the date that the urgent application and the
other applications were adjourned to. In the deponent’s words:
‘
It
was therefore anticipated that all litigation would be determined
once and for all on 3 August 2022 and that any appeal would
be moot
as a result.’
The
deponent goes on to state:
‘
Therefore,
the appellants, acting on legal advice to act practically and
sensibly, considered it appropriate that a notice
of leave
would not be necessary because the matters would be finally
concluded on 03 August 2022.’
[8]
As may be guessed, the matters that the
appellants believed would be resolved on 3 August 2022 were
apparently not all resolved.
In particular, the issues arising out of
the urgent application were apparently not resolved. Nor were they
resolved on 11 August
2022, being the date to which the urgent
application was thereafter adjourned.
[9]
Mr Madlopha in his affidavit then draws
attention to further events that occurred after 11 August 2022 at the
municipality. These
included attempts to call further meetings by the
appellants that were allegedly thwarted by the speaker of the
municipality based
upon an allegedly ‘perverse and
opportunistic’ reading of the order granted by Nkosi J. Mr
Madlopha states further
that because of this:
‘…
it
has become necessary to pursue the appeal. This is to say that the
hope of resolving the legal impasse practically and sensibly,
as
advised by our legal representatives, has not come to fruition.’
[10]
As interesting as these events post 11
August 2022 may be, they appear to be irrelevant to the issue of
condonation. If it is accepted
that a good explanation has been
provided for why the application for leave to appeal was not
delivered before 3 August 2022, which
is not a finding that I now
make, there is no reasonable explanation for the delay in lodging the
application for leave to appeal
between 3 August 2022, or 11 August
2022 being the extended return date, and 6 September 2022. After all,
the appellants knew that
no settlement had been achieved on 11 August
2022, yet still did not launch their application for leave to appeal.
Almost a further
month went by before this occurred. I have no idea
of the reasons for this.
[11]
A proper case for condonation must be
made out where there has not been compliance with the Uniform rules
of this court: condonation
is not there for the mere asking.
Parties
seeking condonation must establish that they did not wilfully
disregard the timeframes provided for in the Uniform rules
and that
there are reasonable prospects of their success on appeal.
[12]
In
Melane
v Santam Insurance Co Ltd,
[4]
the following was stated about the factors that will be taken into
account when considering a condonation application:
‘
In
deciding whether sufficient cause has been shown, the basic
principle is that the Court has a discretion, to be exercised
judicially upon a consideration of all the facts, and in essence it
is a matter of fairness to both sides. Among the facts usually
relevant are the degree of lateness, the explanation therefor, the
prospects of success, and the importance of the case. Ordinarily
these facts are interrelated: they are not individually decisive, for
that would be a piecemeal approach incompatible with a true
discretion, save of course that if there are no prospects of success
there would be no point in granting condonation. Any attempt
to
formulate a rule of thumb would only serve to harden the arteries of
what should be a flexible discretion. What is needed is
an objective
conspectus
of all the facts. Thus a slight delay and a good
explanation may help to compensate for prospects of success which are
not strong.
Or the importance of the issue and strong prospects of
success may tend to compensate for a long delay. And the respondent's
interest
in finality must not be overlooked.’
[13]
It was conceded by the appellants’
counsel when the matter was argued that the appellants were aware
that there were time
limits that needed to be complied with should
they want to appeal. From the affidavit deposed to by Mr Madlopha, it
is clear that
they disregarded those time limits in preference to
wagering everything on the possibility of all matters, including the
urgent
application, settling on 3 August 2022, a date that was
already outside the time limits imposed for the lodging of a notice
of
application for leave to appeal. They consciously and knowingly
disregarded the time limits but now seek condonation for so doing
on
the grounds that it was sensible for them to approach the matter in
this fashion.
[14]
In my view, it was clearly not sensible.
It would, for example, have been sensible for them to deliver their
notice of application
for leave to appeal in time and hold it over
for a while to determine what would happen on 3 August 2022 or,
alternatively, argue
the application and if it succeeded but they
were subsequently able to settle the matter, abandon the appeal.
[15]
Having considered and applied the
criteria referred to in
Melane
,
I am not satisfied that a proper case has been made out for
condonation. Sufficient compelling facts have not been disclosed upon
which I could reasonably exercise my discretion in favour of the
appellants. Indeed, such facts that have been made known to me
tend
to indicate that a decision not to appeal was taken. I shall deal
further with this proposition shortly. The lodging of applications
for leave to appeal are subject to fairly short time constraints,
primarily because the law cherishes the finality of decisions.
Undoubtedly, circumstances will arise from time to time that permit
these time limits to be extended to allow a deserving matter
to enjoy
the attention of a higher court. I do not believe that this is such a
case. I come to that conclusion strengthened by
the fact that the
appellants have not disclosed or discussed their prospects of success
in the affidavit seeking condonation and
because the urgent
application has, as yet, not been finally determined. The interim
relief that I granted has yet to be confirmed
in a final order.
[16]
In the circumstances, condonation is not
granted.
[17]
Should I be incorrect in arriving at
that finding, I am of the view that there is at least one other
reason, there may be others,
why the application for leave to appeal
should not be granted. That reason is closely associated with the
explanation provided
by Mr Madlopha in his affidavit used in support
of the application for condonation. It is the operation of the
doctrine of peremption.
[18]
According to the common law doctrine of
peremption, a party who acquiesces to a judgment cannot subsequently
seek to challenge the
judgment to which he has acquiesced. This
doctrine is founded on the logic that no person may be allowed to
opportunistically endorse
two conflicting positions. Thus, one cannot
decide not to appeal and then later decide to appeal.
[19]
The
doctrine of peremption has its origins in appeals.
[5]
It was enunciated in
Hlatshwayo
v Mare and Deas
,
[6]
where Lord De Villiers CJ held that:
‘
where
a man has two courses open to him and he unequivocally takes one he
cannot afterwards turn back and take the other.’
[20]
Innes
CJ in
Dabner
v South African Railways and Harbours,
[7]
stated in a similar fashion as follows:
‘
The
rule with regard to peremption is well settled, and has been
enunciated on several occasions by this Court. If the conduct of
an
unsuccessful litigant is such as to point indubitably and necessarily
to the conclusion that he does not intend to attack the
judgment,
then he is held to have acquiesced in it. But the conduct relied upon
must be unequivocal and must be inconsistent with
any intention to
appeal. And the onus of establishing that position is upon the party
alleging it. In doubtful cases acquiescence,
like waiver, must be
held non-proven.’
[21]
In
Tswelopele
Non-Profit Organisation v City of Tshwane Metropolitan
Municipality,
[8]
the Supreme Court of Appeal dealt with whether an appeal had been
perempted. Cameron JA discussed the doctrine of peremption as
follows:
‘
Peremption
of the right to challenge a judicial decision occurs when the losing
litigant acquiesces in an adverse judgment. But
before this can
happen, the Court must be satisfied that the loser has acquiesced
unequivocally in the judgment. The losing party's
conduct must “point
indubitably and necessarily to the conclusion that he does not intend
to attack the judgment”:
so the conduct relied on must be
“unequivocal and must be inconsistent with any intention
to appeal”…'
[22]
In
Venmop
275 (Pty) Ltd and Another v Cleverlad Projects (Pty) Ltd,
[9]
the court stated that the enquiry into whether peremption has been
established, does not involve an enquiry into the subjective
state of
mind of the person alleged to have acquiesced in the judgment but
rather involves a consideration of the objective conduct
of such
person and the conclusion to be drawn therefrom.
[23]
The objective conduct of the appellants
in initially not seeking to challenge the order invites the
conclusion that they perempted
their right to appeal it. The longer
that they remained passive regarding an appeal, the more likely that
they had chosen not to
appeal. Mr Madlopha stated in his affidavit
that the appellants considered ‘that a notice of leave would
not be necessary’.
This can only bear the meaning that an
appeal was not to be proceeded with. This is fortified by the
appellants’ later conduct
in trying to settle the litigation,
as they were apparently advised to do. Objectively, they showed no
signs of moving to attack
the order that they now seek to appeal.
Subjectively, they state that they were advised not to appeal, which
advice they accepted.
When these factors are considered collectively,
the invitation to conclude that they perempted their right to appeal
becomes irresistible.
I furthermore cannot discern any
overriding policy considerations that militate against the
enforcement of the peremption of the appellant’s right of
appeal,
nor were any suggested in argument.
The
broader policy considerations
‘…
are that those litigants
who have unreservedly jettisoned their right of appeal must for the
sake of finality be held to their choice
in the interests of the
parties and of justice’.
[10]
[24]
I accordingly conclude that the
applicants’ right to appeal was perempted. Leave to appeal
cannot in such circumstances be
granted.
[25]
This does not leave the applicants
remediless. As previously stated, the order that I granted was in the
form of a rule nisi with
interim relief and accordingly, the final
word on it has not yet been spoken. That application has yet to be
finalised and it is
possible that the relief that I granted may be
overturned when the matter is finally argued and disposed of. That
fact simply serves
as another reason why leave to appeal ought not to
be granted. Entertaining an appeal at this stage would offend against
the jurisprudence
of appeal courts generally, namely that the
piecemeal appellate disposal of the issues in litigation should be
avoided.
[26]
From the inception of the matter, the
principle protagonists have been represented by two counsel. I do not
regard that as a wasteful
luxury and consider that it was necessary.
That fact must therefore be reflected in the order that I now make.
[27]
In the circumstances, I grant the
following order:
1.
The application for leave to appeal is dismissed with costs, such
costs to include
the costs of two counsel where so employed.
MOSSOP
J
APPEARANCES
Counsel
for the appellants :
Mr.
T. G. Madonsela SC with Mr.
M. N.
(2
nd
to 19
th
respondents) Xulu
Instructed
by: : S
M Mbatha Incorporated
51
Hunt Road
Glenwood
Durban
Counsel
for the first and :
Mr.
M. Pillemer SC
with Ms. M.
second
applicants
Mbonane
Instructed
by :
TKN
Incorporated
62/64
Florida Road
Morningside
Durban
Counsel
for the first, twentieth
: Mr. E. M. Nkosi
and
twenty first respondents
Instructed
by
: Nompumelelo Radebe and Company
Suite
1202
12
th
Floor
Metropolitan
Life Building
391
Anton Lembede Street
Durban
Date
of Hearing
: 29 November 2022
Date
of Judgment
: 2 December 2022
[1]
Those
applications bear c
ase
number 6208/22P and case number 6077/22P.
[2]
In
terms of Uniform rule 49(1)
(b)
a party seeking leave to appeal must deliver his notice of
application to do so within 15 days of the date of the order
appealed
against.
[3]
The
applicants state that the application was delivered to the registrar
on 2 September 2022. This is clearly an error as the
notice of
motion was only signed on 6 September 2022 and bears the registrar’s
stamp for that date.
[4]
Melane
v Santam Insurance Co Ltd
1962
(4) SA 531
(A)
at 532B-E.
[5]
Zuma
v Secretary of the Judicial Commission of Inquiry into Allegations
of State Capture, Corruption and Fraud in the Public Sector
Including Organs of State and others (Council for the Advancement of
the South African Constitution and another as amici
curiae)
[2021]
ZACC 28; 2021 (11) BCLR 1263 (CC) para 101.
[6]
Hlatshwayo
v Mare and Deas
1912
AD 242
at 249.
[7]
Dabner
v South African Railways and Harbours
1920
AD 583
at
594.
[8]
Tswelopele
Non-Profit Organisation and others v City of Tshwane Metropolitan
Municipality and others
[2007]
ZASCA 70;
2007
(6) SA 511
(SCA)
para 10.
[9]
Venmop
275 (Pty) Ltd and Another v Cleverlad Projects (Pty) Ltd and
another
2016
(1) SA 78
(GJ)
para 25.
[10]
South
African Revenue Service v Commission for Conciliation, Mediation and
Arbitration and others
[2016]
ZACC 38; 2017 (1) SA 549 (CC)
para
28.