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[2022] ZAGPPHC 669
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Tshwane Economic Development Agency (TEDA) SOC Ltd v Mogaladi and Others (54865/2020) [2022] ZAGPPHC 669 (15 September 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
Case
No: 54865/2020
In
the matter between:
TSHWANE
ECONOMIC DEVELOPMENT
AGENCY
(TEDA) SOC LTD
APPLICANT
and
SOLLY
DANIEL MOGALADI
FIRST
RESPONDENT
CITY
OF TSHWANE METROPOLITAN
MUNICIPALITY
SECOND
RESPONDENT
HEAD
ADMINISTRATOR
THIRD
RESPONDENT
JUDGEMENT
IN APPLICATION FOR LEAVE TO APPEAL AND S 18(3) APPLICATION
NDLOKOVANE
AJ
INTRODUCTION
[1.]
The First Respondent in the main application applies for leave to
appeal to the Supreme Court of Appeal, against the whole
judgment and
order I handed down on 14 July 2022.
[1]
The application for leave to appeal is opposed by the Applicant (in
the main application),who has also instituted an application
in terms
of
s 18(3)
of the
Superior Courts Act 10 of 2013
as amended (the
Act).
[2]
[2.]
For the sake of convenience, I will refer to the parties as they are
cited in the main judgment. After delivery of the judgment
on 14 July
2022, the First Respondent filed a detailed notice of application for
leave to appeal which contained the grounds of
appeal.
[3.]
The First Respondent submitted that the application is based on the
contention that the appeal have reasonable prospects of
success and
that the appeal will dispose of all the issues in the case between
the parties.
[3]
[4.]
The Applicant on the other hand contends that the application for
leave to appeal has no prospects of success and amounts to
an abuse
of court processes.
[4]
The
test in an application for leave to appeal
[5.]
Applications for
leave to appeal are governed by
sections 16
and
17
of the Act.
Section 17(1)
of the Act provides:
“
(1)
Leave to appeal may only be given where the judge or judges concerned
are of the opinion that –
(a)(i)
the appeal would have a reasonable prospect of success;
or
(ii)
there is some other compelling reason why the appeal should be heard,
including conflicting judgments on the matter
under consideration;
(b)
the decision sought on appeal does not fall within the ambit of
section 16((2)(a)
; and
(c)
where the decision sought to be appealed does not dispose of all the
issues in the case, the appeal would lead to
a just and prompt
resolution of the real issues between the parties.
”
[6.]
With the enactment of
s 17
of the Act, the test has now obtained
statutory force and is to be applied using the word “
would”
in
deciding whether to grant leave. In other words, the test is would
another court come to a different decision. In the unreported
decision of the
Mont
Chevaux Trust v
Goosen
& 18 others
[5]
,
the land claims court held,
albeit
obiter
,
that the wording of the subsection raised the bar for the test that
now has to be applied to any application for leave to appeal.
In
S
v Notshokovu
[6]
,
it was held that an appellant faces a higher and stringent threshold
in terms of the Act comparted to the repealed Supreme Court
Act 59 of
1969.
[7.]
It is noteworthy that the phrase “
reasonable
prospects of success
”
in s 17(1) of the Act presupposes a measure of certainty that the
court of appeal would reach a different outcome. What
the test
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.
[7]
In order to succeed,
the appellant must convince the 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.
[8]
[8.]
In the present matter, I would have to determine whether another
court would (my emphasis) come to a different decision. I
have
considered the application for leave to appeal and the oral
submissions of the parties.
[9.]
Mr. Pretorius as the record will reveal, made several submissions in
relation to whether or not I correctly found amongst others
that the
Applicant was appointed CEO by the Board of the First Respondent. For
the appointment of the applicant as CEO to have
taken place, there
ought to have been a written agreement with all the relevant
signatures appended to it, in the present case
,no such written
agreement exist, instead the City of Tshwane’s concurrence is
sought and by virtue of that request, same
excludes any appointment,
so his submissions goes. Therefore, I should have dismissed the
application with costs ,including the
costs in respect of part A of
the application.
[10.]
During the course of argument Mr. Molotsi in contrast on behalf
of the Applicant, as would be expected, submitted that
the grounds
for leave to appeal advanced by the First Respondent do not meet the
stringent test set out in s 17(1) of the Act.
[9]
Mr. Molotsi further submitted that the grounds for leave to appeal do
not introduce anything new which was not argued by the First
Respondent during the hearing of the main application.
[10]
[11.]
Mr. Molotsi also submitted that the First Respondent’s grounds
for leave to appeal do not postulate a dispassionate
decision based
on law and facts that the appeal court could come to a different
decision.
[11]
He further
submitted that there are no proper grounds that the First Respondent
has shown to prove prospects of success on appeal.
[12]
[12.]
Mr. Molotsi also submitted that the grounds for application for leave
to appeal are purely an attack on the reasoning of the
court in
reaching the order pronounced and that it is trite that an appeal
lies against an order that is made by a court and not
against its
reasons for making the order. Therefore first respondent(TEDA)acted
ultra vires and contrary to the principles of the
case referred to by
both parties of Endimeni. I was therefore correct in re-asserting the
right of the applicant that he was appointed.
[13.]
Having considered the arguments presented by the First Respondent, I
am of the view that there is a reasonable prospect that
another court
would differ with me. Consequently, leave to appeal ought to be
granted to the Supreme Court of Appeal and the costs
of the
application for leave to appeal, be costs in the appeal.
[14.]
That brings me to the application in terms of s 18(3).
The
execution of the reinstatement order
[15.]
Section 18(1) of the Act provides that the execution of a decision
which is the subject of an application for leave to appeal,
is
suspended pending the decision of that application or the appeal,
unless the court under exceptional circumstances orders otherwise.
In
terms of s 18(3), the party who applies for execution of the decision
must in addition prove that it will suffer irreparable
harm if the
court does not make an execution order, and that the other party will
not suffer irreparable harm if it does. An applicant
must therefore
prove both exceptional circumstances and the requisites of
irreparable harm.
[16.]
It is impossible to lay down precise rules as to what constitutes
exceptional circumstances. Each case must be decided on
its own
facts. The prospect of success in the pending appeal is a relevant
consideration and if it is doubtful, a court deciding
an application
under s 18(3) would be less inclined to grant it.
[17.]
In
Incubeta
Holdings (Pty) Ltd and Another v Ellis and Another
[13]
,
Sutherland J had the following to say about exceptional
circumstances:
“
Necessarily
in my view exceptionality must be fact-specific. The circumstances
which are or may be ‘exceptional’ must
be derived from
the actual predicaments in which the given litigants find
themselves.
”
[18.]
It is noteworthy that in the present case what the Applicant sought
to articulate as exceptional circumstances is in the main
the
legislative framework under which the First Respondent was created
and in terms of which the first respondent operates, in
that TEDA
being an organ of state, certain measure of exercise for organ
of states performing certain functions is expected.
TEDA as a private
entity created by the legislation for the benefit and usage of the
City of Tshwane and the latter having effective
control over TEDA.
This means TEDA cannot perform functions outside the function of the
City of Tshwane, especially considering
TEDA’s the foremost
role and function of economic development.
[14]
The Applicant contended that the First Respondent’s role and
the role of the Applicant as CEO, the unlawful conduct of the
First
Respondent, the continuous chopping and changing of the acting CEOs,
all cumulatively creates the exceptional circumstances
referred to in
s 18 of the Act. Most importantly, that since, the applicant left
office, there has been instability in the City
of Tshwane with almost
5 acting CEO in a short space of time. I hasten to mention that this
is disputed by the first respondent.
[19.]
Regard to the requirement of irreparable harm, the Applicant
presented his dire financial situation since 30 December 2020
to date
as an indication of irreparable harm that will ensue if the order
sought in this regard is not granted. In that he has
taken up a part
time job where he only earns an amount of R10 000.00 per month
and having to support his family and being
a bread winner who used to
live at a salary of R116 000.00 per month. This has caused
him irreparable as opposed to
the first respondent in the event its
leave to appeal does not succeed, so his submissions goes.
[20.]
It is inconceivable as to why the First Respondent would not be
liable to appoint the Applicant as CEO with back-pay, including
the
loss of interest and any such interest expended on borrowing from
friends for living expenses if necessary, should its appeal
fail.
[15]
[21.]
On the other hand it is doubtful whether the Applicant would not be
able to reimburse the first respondent in the event that
the order
being put into operation and the First Respondent being unsuccessful
in this appeal.
[22.]
However, should the order be put into operation, the First Respondent
would continue to operate as normal and therefore would
not suffer
any irreparable harm by virtue of the operation of the order and will
find stability while the appeal is pending.
[23.]
In my view the irreparable harm (if any) to be suffered by the
parties should be viewed in the light of the period when the
appeal
is still pending and not at any period after that.
[24.]
In the circumstances I am of the view that the balance of
probabilities favours the Applicant in the circumstances.
Costs
[25.]
That then brings me to the aspect of costs. Mr. Pretorius on behalf
of the First Respondent submitted that the application
be dismissed
with costs. It seems to me that there is no reason to depart from the
usual rule in relation to costs. The rules make
provision for the
Applicant to bring such an application, he has done so. The First
Respondent did oppose the application, consequently
the costs ought
to follow the result.
[26.]
Consequently, the following orders will issue:
(a)
The First Respondent is granted leave to appeal the judgment
delivered on 14 July 2022 to the Supreme
Court of Appeal.
(b)
The costs of the application for leave to appeal will form part of
the costs in the appeal.
(c)
It is hereby ordered and directed that in terms of the provisions of
s 18(3) of the Superior Court Act
10 of 2013 as amended, this court’s
orders granted on 14 July 2022 under Case No. 54865/2020, shall
operate and be implemented
with immediate effect pending the outcome
of the appeal instituted by the First Respondent.
(d)
The First Respondent shall pay the Applicant’s costs of the s.
18(3) application.
APPEARANCES:
FOR
THE APPLICANT:
ADV JAL
PRETORIUS SC
FOR
THE FIRST RESPONDENT: ADV
H MOLOTSI SC
DATE
HEARD: 30
AUGUST 2022
DATE
DELIVERED:
14 SEPTEMBER
2022
[1]
Preamble to the Notice of Application for Leave to Appeal at para 1,
First Respondent’s Heads of Argument (Application
for Leave to
Appeal) at para 2, Founding Affidavit to the Applicant’s
Urgent Application at para 10.
[2]
Preamble to the Applicant’s Opposition to the Application for
Leave to Appeal, Founding Affidavit to the Applicant’s
Urgent
Application at paras 9 & 10.
[3]
Preamble to the Notice of Application for Leave to Appeal at para 2.
[4]
Preamble to the Applicant’s Opposition to the Application for
Leave to Appeal at para 3.
[5]
2014 JDR 2325 (LCC) para 6.
[6]
[2016]
ZASCA 112
para
7.
[7]
S v
Smith
2012
(1) SACR 567
, 570 para 7.
[8]
Supra.
[9]
Applicant’s Heads of Argument (Opposition to Application for
Leave to Appeal) at para 10.
[10]
Supra.
[11]
Applicant’s Heads of Argument (Opposition to Application for
Leave to Appeal) at para 12.
[12]
Supra.
[13]
2014 (3) SA 189
(GJ) para 22.
[14]
Applicant’s Heads of Argument (Opposition to Application for
Leave to Appeal) at paras 41-51.
[15]
See
Incubeta
Holdings (Pty) Ltd & Another v Ellis & Another
2014
(3) SA 189
(GJ) para 25.6.