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2022
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[2022] ZANCHC 72
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Yola and Another v Jonas and Others (1800/2022) [2022] ZANCHC 72 (8 November 2022)
IN
THE HIGH COURT OF SOUTH AFRICA,
NORTHERN
CAPE DIVISION, KIMBERLEY
JUDGMENT
Not
reportable
Case
No: 1800/2022
In
the matter between:
TOMMY
YOLA
FIRST
APPLICANT
THE
AFRICAN NATIONAL CONGRESS
(PIXLEY
KA SEME REGION, NORTHERN CAPE) SECOND
APPLICANT
and
DANNY
ANDRIES JONAS
FIRST RESPONDENT
THEMBELIHLE
LOCAL MUNICIPALITY
SECOND
RESPONDENT
MUNICIPAL
MANAGER: LMR NGOQO
THIRD
RESPONDENT
THE
INDEPENDENT ELECTORAL COMMISSION
OF
SOUTH AFRICA
FOURTH
RESPONDENT
THE
SIYATHEMBA COMMUNITY MOVEMENT FIFTH
RESPONDENT
THE
MEC- DEPARTMENT OF COOPERATIVE
GOVERNANCE,
HUMAN SETTLEMENT AND
TRADITIONAL
AFFAIRS, NORTHERN CAPE
SIXTH RESPONDENT
COUNCILLOR:
RAGEL JANSEN SEVENTH
RESPONDENT
COUNCILLOR:
LEONARD WILLIAM MAKENNA
(THE
MAYOR)
EIGHTH
RESPONDENT
COUNCILLOR:
FRANS MANS NINTH
RESPONDENT
COUNCILLOR:ELZERONE
STENEKAMP TENTH
RESPONDENT
COUNCILLOR:
PAUL PETRUS VAN NIEKERK ELEVENTH
RESPONDENT
MARNUS
STANLEY VISSER
TWELFTH
RESPONDENT
Neutral
citation:
Yola
and Another v Jonas and Others
(Case
no 1800/2022) (08 November 2022)
Heard: 13
October 2022
Delivered: 08
November 2022
JUDGMENT
Phatshoane
DJP
Introduction
[1]
A municipal council ought to be a custodian of good governance. The
prevailing state
of affairs in the political governance structure of
Thembelihle municipality can best be described as chaotic with a
potential
to permeate and lead into administrative inefficiency and
lack of service delivery. The municipal council has descended into
being
virtually ungovernable. There reigns heightened tensions and
dysfunctionality. The antagonists, in their respective positions,
claim to be vindicating the rule of law. A poignant truism is that
the community suffers the brunt. This put into context what this
case
is about.
[2]
Mr Tommy Yola and the African National Congress(ANC), the first and
second applicants,
approached this court on a semi-urgent basis for
an order declaring that Mr Danny Jonas (Mr Jonas), the first
respondent, was removed
as a councillor of Thembelihle Local
Municipality (the municipality), the second respondent, on 22 June
2022 which resulted in
his seat being vacant and his position as a
Speaker brought to its abrupt end. They further sought an order
interdicting Mr Jonas
from holding himself out as a councillor or
speaker of the municipality or taking part in the affairs of the
municipality as a
speaker or councillor. I am further urged to
forthwith order that the municipality and the municipal manager, Mr
Ngoqo, the third
respondent, convene a meeting of council of the
municipality within 10 days for purposes of electing a new speaker of
the municipality.
In addition, the applicants seek an order of costs
against Mr Jonas and any of the respondents that opposes the relief
on an attorney
and client scale.
[3]
Mr Jonas, the municipality, the municipal manager, the mayor,
councillor Frans Mans,
and councillor Elzerone Stenekamp, the first,
second, third, eighth, ninth and tenth respondents (municipal
respondents) resists
the application. The Siyathemba Community
Movement (Siyathemba), the fifth respondent, also filed its separate
opposing affidavit
late. It sought condonation. The delay is not
inordinate and there can be no prejudice in admitting the affidavit.
The twelfth
respondent, Mr Marnus Stanley Visser, filed an affidavit
in support of the application.
[4]
In their replying affidavit, the applicants took issue that the
municipality and the
municipal manager joined forces with Mr Jonas in
opposition to the application when there is no council resolution
sanctioning
the conduct or the general delegation authorising Mr
Jonas to act on behalf of the municipal respondents. It goes without
saying,
as the facts of the case would show, that an attempt by the
municipal respondents to obtain a council resolution to oppose the
application, would have turned futile. The opposing affidavit by the
municipal respondents was deposed to by Mr Jonas. However,
what is
remarkable is that none of the municipal respondents attested to
confirmatory affidavits.
[5]
Mr Jonas and the municipal respondents have attached, to their
opposing affidavit,
several applications that had been filed by
various parties in this court, making the record unreasonably
prodigious. I must add,
that they took no effort to indicate the
relevant passages they relied on which made traversing the record
quite a difficult task.
This ought to be strongly deprecated. To
borrow from Joffe J in
Swissborough
Diamond Mines (Pty) Ltd and Others v Government of the Republic of
South Africa and Others
:
[1]
‘(I)
t
is not open to an applicant or a respondent to merely annex to its
affidavit documentation 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. If this were not
so the essence of our established practice would
be destroyed.’
[6]
Mr Jonas and the municipal respondents took a point, first, that the
application is
not urgent. From the prelude to this judgment, it is
difficult to comprehend how the issues traversed in the papers cannot
be classified
as urgent. It is in the interest of the community of
Thembelihle that the impending disputes, within its municipal
council, be
resolved speedily. The second preliminary point is to the
effect that the applicants failed to set out facts which support the
requirements for a final interdict. This point, seen in the context
of the present setting, as I shall show, is of little or no
moment.
[7]
Siyathemba Community Movement (Siyathemba), the fifth respondent,
applied in terms
of
s 15
of the
Electoral Commission Act 51 of 1996
for registration as a political party. In terms of its application
for registration, Siyathemba’s leader and its chairperson
is
recorded to be Mr Andrew Phillips. Other members constituting its
executive structure were, amongst others, Mr Andrew Phillips,
Mr
Chumisa Mooi, and Mr Piet Olyn.
[8]
On 3 December 2021, the IEC confirmed to the office of the Municipal
manager of Thembelihle
that Siyathemba had been registered as a
political party with Mr Phillips indicated to be the party leader and
Mr Piet Olyn, the
Secretary. The municipal council (council) consists
of 11 seats. Five of these are held by the ANC, one by the Democratic
Alliance(DA),
three by the Economic Freedom Fighters (EFF),
Siyathemba and Freedom Front Plus (FFP) hold one seat each. The ANC
won wards 1 to
4, the EFF won ward 5 and the FFP garnered ward 6. On
a proportional basis, the ANC obtained a further seat, the EFF
obtained two
further seats, the DA one proportional seat and
Siyathemba, one propositional seat. The elections were declared free
and fair by
the Independent Electoral Commission of South Africa
(IEC), the fourth respondent. On 22 November 2021, at the inaugural
council
meeting, Mr Jonas of Siyathemba was elected the speaker of
council.
[9]
Siyathemba’s seat on the council (that which has been occupied
by Mr Jonas)
is based on proportional representation only. In terms
of s 27(c) of the Local Government: Municipal Structures Act 117 of
1998
(the Structures Act) a councillor elected as a
proportional representative loses his or her seat when he or she
ceases to
be a member of a party that he or she represented on the
occurrence of which event the municipal manager of the municipality
concerned
is required by Item 18(1)(b) of Schedule 1 of the
Structures Act to inform the chief electoral officer of the Electoral
Commission
that the councillor in question has ceased to hold office.
Item 18(1)(a) provides that he or she will then be replaced by
another
person on the party's list after the chief electoral officer
has declared this to be the case.
[10]
On 19 May 2022, Mr Jonas was informed by Siyathemba that he had been
found guilty of gross misconduct
and expelled from the party. Mr
Jonas’s letter of termination was signed by Mr Phillips, the
party leader according to the
records of the IEC. The applicants
explained that Mr Phillips also forwarded a copy of a letter to the
acting Municipal Manager
of the municipality, Mr Shuping, which
confirmed that Mr Jonas’s membership in Siyathemba had been
terminated and that Siyathemba’s
seat on the council was
therefore vacant.
[11]
Mr Shuping directed a letter to the IEC informing it that Mr Jonas
was expelled from Siyathemba
and that in terms of s 27 of the
Municipal Structures Act, his seat was vacant. By means of a letter
delivered to the IEC on 8
June 2022, the Municipal manager called
upon the IEC to fill the vacancy in terms of Item 18(1) of Schedule 1
of the Structures
Act. Whether Mr Shuping was the duly appointed
acting municipal manager at the time, and thus authorised to issue
the letter, is
highly contentious. The applicants claim that Mr
Shuping was the acting municipal manager and properly authorised to
act as he
did. In terms of the council resolution of 30 March 2022,
council resolved to extend his contract for a period of three months
effective from 1 April to 30 June 2022. Mr Jonas, on the other hand,
submits that Mr
Steven Marufu was the acting municipal manager. He stated that, when
Mr Marufu became aware of the letter that Mr
Shuping forwarded to the
IEC, concerning Mr Jonas’s expulsion, he immediately informed
the IEC that he (Mr Marufu) was the
acting municipal manager and not
Mr Shuping. The IEC did not respond to the letter. Therefore, Mr
Jonas believes that the IEC acted
in concert with Mr Shuping and
involved itself in politics.
[12]
On 22 June 2022, the IEC issued a notice in terms of which it
declared a vacancy in respect of
the position that was held by Mr
Jonas in the council and further advised that Siyathemba had
recommended Mr Marnus Stanley Visser
(Mr Visser), the twelfth
respondent, as the next candidate to fill the vacancy. It further
directed that Mr Visser, being the candidate
on the top of
Siyathemba’s list, was declared to be elected to the council as
envisaged in Schedule 1 Item 18 of the Structures
Act and that Mr
Visser had replaced Mr Jonas who had ceased to hold office in the
municipal council. It is partly on this basis
that the applicants
approached this court for the declaratory order that Mr Jonas was
removed as a councillor on 22 June 2022 which
resulted in his seat
being vacant and his position as a Speaker, being brought to an end.
[13]
Further reasons the applicants advanced, as having precipitated the
launching of the application,
were the following. They asserted that
Mr Jonas, despite his expulsion from council, continues to represent
himself as both a councillor
and the speaker in meetings and in
correspondence and notices that he dispatches. They say that this
undermines the role of the
council and also raises substantial risk
of review applications being brought on account of an incorrectly
constituted council.
They portrayed Mr Jonas’s role as a
speaker as disruptive, suppressive and lacking objectivity. Time is
largely spent in
meetings addressing technical points on his status
as a speaker. Furthermore, the majority of councillors refused to
sign the attendance
register as they do not recognise Mr Jonas.
[14]
The applicants further state that Mr Jonas called several special
council meetings between 22
June 2022 to 30 August 2022 on extremely
short notices contrary to the Structures Act intent to foist upon
council decisions without
affording councillors sufficient time to
consider reports and points traversed in the agenda. For instance,
they claimed, he scheduled
a special council meeting for 22 June 2022
at 10h00. The objection raised by other councillors that he should
not preside over
the meeting was rejected. He also presided over a
special council meeting held on 29 June 2022 which dealt with
important issues,
including the 2022/23 final budget and 2022/27
first final independent plan. He repeatedly called special council
meetings for
21 July 2022; 4 August 2022, 8 August 2022 and 30 August
2022. The applicants intimate that the frequency of meetings
demonstrates
that, as a direct consequence of Mr Jonas’s
conduct, the council affairs are out of control and requires
intervention from
this court.
[15]
The frequency of the meetings drew the attention of the Department of
Cooperative Governance,
Human Settlement and Traditional Affairs
(COGHSTA) which made an exhortation to the council on 28 July 2022 to
limit the number
of special council meetings and to convene for
emergency purposes only. Mr Jonas was also implored to investigate a
possible breach
of the code of conduct aligned to the standing rules
of order to determine reasons for absenteeism of one of the
councillors.
On 18 August 2022 the current Municipal manager,
the third respondent, directed a letter to the MEC for COGHSTA, the
sixth respondent,
which reads in part:
‘
It
seems to me there is a legal battle on the position of the speaker,
which has a potential of creating instability and that is
the reason
why I am writing this letter for the intervention of the honourable
MEC B.C Vass. It is my belief that a legal opinion
be obtained on
urgent basis in order to resolve the matter to prevent any
interruption of services’.
[16]
In his opposition Mr Jonas sketched some historical background to
this saga. He says that his
election as the speaker on 22 November
2021 and the eighth respondent as the mayor effectively culminated
into the removal of the
ANC as the governing party. Two months into
office, he explained, he was confronted with an array of frivolous
and vexatious motions
of no confidence. He stated that Mr Yola, the
first applicant, who is the representative of the ANC, Pixley Ka Seme
Region, submitted
a motion of no confidence to remove him as a
speaker. He was made aware of his removal through a WhatsApp message.
He then lodged
an urgent application which resulted in the order by
Erasmus AJ on 11 February 2022
which reads:
‘
1.
Pending the finalisation of the application for the relief, as set
out in PART B of the Notice
of Motion issued on 25 January 2022:
1.1
the first to the seventh respondents [amongst them the municipality
and the present applicants] are interdicted and restrained
from
implementing a resolution by the municipal council of the first
respondent to remove the applicant [Mr Jonas] as the speaker
of the
first respondent;
1.2
the applicant
is reinstated as the speaker of the first respondent;
2.
The costs of this application shall be costs in the main application,
set out in PART B of
the Notice of Motion issued on 25 January 2022;
3.
…..
4.
The applicant is directed to enrol the application for the relief in
PART B of the Notice
of Motion issued on 25 January 2022 within 30
days of this order, failing which this order shall lapse, unless a
court grants an
order extending such time limit.’
[17]
It would appear that the matter was not set down for the hearing of
PART B as directed in para
4 of Erasmus AJ ’s order and
consequently the order lapsed.
Mr
Jonas intimated that 3 months later, on 30 April 2022, he was again
unlawfully removed as a speaker pursuant to a motion of no
confidence
that was submitted, once more, by Mr Yola. He successfully brought an
urgent application to interdict his removal. Pursuant
to this, on 19
May 2022, he received a letter from the Siyathemba informing him that
he had been found guilty of, inter alia, participating
in organised
factional activity; behaving in a grossly, disorderly or unruly way;
and interfering with the orderly functioning
of the organisation. He
was expelled but filed an appeal which nonetheless ruled that his
conduct ‘caused an irretrievable
breakdown within the
organisation’ and thus confirm his expulsion. He then launched
another urgent application which resulted
in the order by Nxumalo J
on 25 June 2022 in these terms:
‘
1.
Part A of this application be and is hereby dealt with as a matter of
urgency and that the applicant’s
[Mr Jonas’s]
noncompliance with the Rules of Court regarding service and process
is condoned in terms of Rule 6(12)(a) and
pending the determination
of the review envisaged in part B.
2.
The first to the fifth respondents [the IEC, the municipality, the
municipal manager, Siyathemba
and its chairperson] are hereby
interdicted and restrained from appointing a councillor to replace
the applicant as councillor
pending finalisation of a review
application.
3.
The fourth to the fifth respondents [Siyathemba and its chairperson]
are ordered to reinstate
the applicant to his position as a member of
the fourth respondent [Siyathemba] pending finalisation of the review
application.
4.
There is no order as to costs.’
[18]
Mr Jonas gainsaid that he lacks objectivity and intimated that he has
discharged his obligations
as speaker with integrity and distinction.
All the special council meetings that he called complied with the
48-hour notice as
contemplated in s 5 of the standing rules and
orders. He has never suppressed discussions or debates. He
explained that it
was a disruptive behaviour of the applicants that
prompted him to adjourn the meetings. He further intimated that the
applicants
brought Mr Visser to the meeting and demanded that Mr
Jonas recognise him. They also called in the aid of a crowd to
disrupt the
meetings. Mr Jonas says that Mr Andrew Phillips, who
issued the letters for his expulsion, had already been removed from
Siyathemba
on 04 January 2022 and therefore he had no authority to
dismiss him from the party. Mr Phillips subsequently filed an
application
in this Court on 21 January 2022 under case No 148/22
challenging his expulsion. According to Mr Jonas, Mr Phillips and the
Acting
municipal manager, Mr Shuping, acted prematurely in notifying
the IEC of his purported expulsion. He contended that the IEC ought
not to have declared a vacancy in circumstances where it was aware of
the litigation in this court intended to address the rightful
leadership in the Siyathemba. The IEC was informed on 19 January 2022
that Mr Phillip had been expelled from Siyathemba and requested
to
remove Mr Phillips as a representative of Siyathemba.
[19]
Siyathemba in its opposition confirmed that Mr Phillips was expelled
from the party from 04 January
2022. It says that the decisions taken
by Mr Phillips, concerning the operations of Siyathemba, since his
expulsion are ultra vires.
Essentially, it denied that Mr Jonas was
suspended or expelled from Siyathemba. It says that despite the IEC
knowing that there
were disputes within the party, it recorded Mr
Visser as a candidate for Siyathemba and ‘declared him elected
to Thembelihle
Local Municipality.’ Siyathemba’s
deponent, Mr Piet Olyn, says neither he, as the secretary of
Siyathemba, nor Mr Ronald
February, who was voted as the new
chairperson of Siyathemba on 23 January 2022, informed the IEC and
the municipal manager of
the expulsion of Mr Jonas.
[20]
Mr Jonas is of the
view that the present application was launched solely to collapse the
coalition government of the EFF, Siyathemba,
DA and FFP and to block
the tabling of the National Treasury forensic report which had been
scheduled for 23 September 2022. He
is further of the view that the
applicants have teamed up with Mr Visser to oust the coalition rule.
[21]
The functions of a speaker of a municipal council are set out in s 37
of the Structures Act.
He or she plays a pivotal role in coordinating
council’s activities. He or she,
inter alia
, has
to preside at meetings of the council; must maintain order during
meetings; must ensure compliance in the
council and
council committees with the code of conduct; must ensure
that council meetings are conducted in accordance
with the rules and
orders of the council; is responsible for the effective
oversight over the executive authority of the municipality;
and must
ensure the effectiveness of the committees of the municipal council
established in terms of section 79. If the speaker’s
office is
rendered ineffectual, as it appears to be the case here, surely the
edifice would crumble.
[22]
The principal controversy that
emerges on the papers is whether Mr Jonas is still a councillor and
the speaker of the council or
has been removed.
The
applicants contend that a key consideration, in answering the
question, lies in the decision by the IEC that declared the position,
which Mr Jonas previously occupied, vacant and filled it. The
decision by the IEC stands, it was argued, until set aside by a court
of law. The applicants further contended that Mr Jonas conceded
before Nxumalo J that the decision by his own political party and
that of the IEC were valid and binding on him. He averred:
‘
The
decision of the fourth respondents (Siyathemba) is binding on me and
to do otherwise would amount to self-help. The decision
of the first,
second and fourth respondent [IEC, Thembelihle Municipality, and
Siyathemba] has legal consequences and must be complied
with or acted
upon. Accordingly, to achieve the opposite outcome lawfully, I am
enjoined to approach this honourable court to interdict
the decision
of the fourth respondent pending an application to review and set
aside the decision of the fourth respondent to expel
me.’
The
applicants submitted that the decision by the IEC, which includes the
loss of Mr Jonas’s seat in the council, has legal
consequences.
It was argued for them that this Court should not interfere in
matters of politics but must uphold the rule of law
by condemning the
on-going unlawful conduct on the part of Mr Jonas and those who
engaged in an unlawful common enterprise with
him.
[23]
Mr Jonas countervailed that he has successfully interdicted, through
the Nxumalo J order issued
under case no 1308/2022, his replacement
as a speaker of the municipality and a member of Siyathemba. To
recapitulate, t
he Nxumalo J order
is to the effect that the IEC, the municipality, the municipal
manager, Siyathemba and its chairperson are restrained
from
appointing a councillor to replace Mr Jonas as councillor pending the
finalisation of a review application. It also compels
Siyathemba and
its chairperson to reinstate Mr Jonas to his position as a member of
Siyathemba pending the review.
[24]
The
parties gave
divergent interpretations of the order by Nxumalo J. It was contended
for the applicants, on the one hand, that the
Nxumalo J order did no
more than to reinstate Mr Jonas to his position as a member of the
Siyathemba. The order did not reinstate
him as a councillor or
speaker of council but simply blocked the appointment of a new
councillor to fill the seat. The
IEC
adopted the position, in its correspondence to the parties, that the
Nxumalo J order was incapable of being complied with because,
when it
was issued, IEC had already declared and filled the vacancy
purportedly left vacant by Mr Jonas.
It
was further argued, for the applicants, that
the
interdict was not a remedy for the past invasion of rights but
concerned the present or future infringements
of rights. Mr Jonas,
on the other hand, persisted that the order reinstated him into his
position as a councillor and speaker of
the Thembelihle council.
[25]
It is not necessary to venture into any interpretative task with
regard to the order issued by
Nxumalo J. It suffices to state that
t
he expulsion of Mr Jonas as a
member of Siyathemba is the subject matter of a review application
pending before this court under
case No 1308/2022. O
n
the date of the hearing of the present application Mr Jonas also
filed, from the bar, an application to review and set aside the
decision of the IEC for having declared and filled the vacancy. The
pending reviews are not irrelevant or “designed to create
a
certain atmosphere and detract attention away from the facts of this
matter” as the applicants sought to argue. On the
contrary, as
I see it, they lie at the heart of this application.
[26]
There are four central decisions which would have to be taken into
account in determining the
merits or demerits of the present
application. First the expulsion of Mr Jonas from Siyathemba.
Secondly, the determination by
the then acting municipal manager that
there had been a vacancy of Mr Jona’s seat. Thirdly, the
decision by the IEC to declare
Mr Jonas’s seat vacant. Lastly,
the decision to declare Mr Visser as the duly elected representative
of Siyathemba. I have
enquired from the applicants during the hearing
of the application, if the application was not premature in light of
the impending
reviews. The applicants pressed ahead with their
argument that the decisions, which are the subject matter in the
reviews, remain
valid and have not been reviewed or set aside. Thus,
they argued, this Court ought to grant the relief sought. Reliance by
the
applicants in
Cathcart
Residents Association
v
Municipal Manager for the Amahlathi Municipality
[2]
in support of their argument is misplaced. The facts in
Cathcart
are
entirely different from those which apply to this case. In
Cathcart,
the
respondent had done nothing for a few months short of three years to
challenge the lawfulness of the termination of his
membership in the
political party. Plasket J (as he then was) held that:
“
He
must be taken to have accepted it and, whatever doubts may arise as
to the legal pedigree of the decision, it must be accepted
as having
legally valid consequences until it is set aside.”
[27]
In this case, Mr Jonas took steps to challenge the lawfulness of his
expulsion from his political
party from the outset. It bears
repeating that
Nxumalo
J has already interdicted
the
IEC, the municipality, the municipal manager, Siyathemba and its
chairperson from “appointing a councillor to replace
the
applicant as councillor pending finalisation of a review
application.” But even more importantly, Siyathemba and its
chairperson were also ordered “to reinstate the applicant [Mr
Jonas] to his position as a member of the fourth respondent
[Siyathemba] pending finalisation of the review application.
Reinstatement
entails the restoration of the status quo ante.
[3]
The effect of an order reinstating Mr Jonas into his office is that
he did not cease to hold office in Siyathemba as contemplated
in
Schedule 1 Part 3 Item 18(1)(b) of the Structures Act.
[28]
The applicant’s argument that Mr Jonas did not approach this
court with clean hands when
he obtained an order before Nxumalo J
does not change the situation. The reality is that the order has been
issued. Court orders,
irrespective
of their validity, are binding until set aside. Wrongly issued
judicial orders are not nullities. They are
not void or
nothingness, but exist in fact with possible legal consequences.
[4]
To my mind, a
ny
declaratory order at this stage, to the effect that
Mr
Jonas was removed as a councillor and speaker of Thembelihle Local
Municipality would be legally untenable. This is so because
of
the
pending review concerning the expulsion of Mr Jonas from his party
and the review concerning the decision of the IEC to declare
the
position held by Mr Jonas vacant and filling it. The outcome of the
reviews in question would have a bearing on the order which
this
Court is enjoined to make. In my view, it would be expedient that
they be disposed of first, on an expedited basis.
[29]
The existing state of
affairs in the council of Thembelihle cannot continue unabated. The
fact that council meetings have been marred
by a series of walkouts
and stalemates indicates that the
municipality
cannot or does not fulfil an executive obligation as envisaged in s
139 of the Constitution. Apparent from the letter
by the current
municipal manager dated 18 August 2022, addressed to the MEC for
COGHSTA, referred to earlier, the interruption
of services to the
local community of Thembelihle is imminent. The prevailing conditions
in Thembelihle would require the relevant
provincial executive, in
this case, the MEC for COGHSTA, the sixth respondent, if so advised,
to intervene by taking any appropriate
steps to restore order and
ensure fulfilment of the executive obligations constitutionally
entrusted on the municipality, as an
interim measure,
pending
the determination of the two review applications filed by Mr Jonas
under case no 1308/2022 and the final determination of
this case.
[30]
To expedite the hearing of the reviews, I am of the view that the
applications filed under case
no 1308/2022 be placed before the Judge
President or any other judge to be designated by him for an expedited
judicial case flow
management.
[31]
Both parties sought punitive costs in the event they were successful.
In view of my conclusion
that the reviews be disposed of first, it
would be pragmatic that costs be reserved for later determination.
In the result, I make the
following order.
Order:
1.
Pending the
determination of the two review applications filed under case no
1308/2022,
the order in the
present application filed under case no1800/2022 is withheld
.
2.
The Registrar
of this Court is directed forthwith to refer the applications filed
under case no
1308/2022
to an
expedited judicial case-flow management by the Judge President or a
judge to be designated by the Judge President.
3.
Costs are reserved for
later determination.
MV
Phatshoane DJP
APPEARANCES
:
FOR
THE FIRST AND
SECOND
APPLICANTS:
Adv RJ Groenewalt
Instructed
by:
Calteaux & Partners, Edenvale
Duncan
& Rothman Attorneys,
Kimberley
FOR
THE FIRST, SECOND, THIRD
EIGHTH,
NINE AND TEN RESPONDENTS: Adv BM Babuseng
Instructed
by: Magoma
Attorneys, Kimberley
FOR
THE FIFTH RESPONDENT:
Adv
JK
Mongala
Instructed
by:
Akani Mathonsi Attorneys, Kuruman
Matlejoane
Attorneys, Kimberley
FOR
THE TWELFTH RESPONDENT: Adv
T Tyuthuza
Instructed
by: Motlhamme
Attorneys, Kimberley
[1]
1999
(2) SA 279
(T) at 324F-G.
[2]
2014
JDR 0797 (ECG).
[3]
Nel
v Oudtshoorn Municipality & another
(2013)
34
ILJ
1737
(SCA) at paras 8 and
10.
[4]
Municipal
Manager OR Tambo District Municipality & another v Ndabeni
(2022)
43 ILJ 1019 (CC) para 24.