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2021
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[2021] ZANCHC 67
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Mgaguli and Others v Setlhogomi and Others (2620/2021) [2021] ZANCHC 67 (23 December 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
NORTHERN
CAPE DIVISION, KIMBERLEY
Case
No:
2620/2021
Heard:
20/12/2021
Delivered:
23/12/2021
Reportable:
YES/NO
Circulate
to Judges: YES/NO
Circulate
to Magistrates: YES/NO
Circulate
to Regional Magistrates: YES/NO
In
the matter between:
BUSISWE
PATIENCE
MGAGULI
1
st
Applicant
PORTIA
REMAKETSE
SELOGILWE
2
nd
Applicant
TEBOGO
AFRIKA
3
rd
Applicant
and
MICHAEL
SETLHOGOMI
1
st
Respondent
GOITSEMODIMO
HALTER
2
nd
Respondent
OLEBOGENG
SAMUEL
TUMODI
3
rd
Respondent
TSHOLOFETSO
MOCUMIE
4
th
Respondent
THABONYANE
VAN
WYK
5
th
Respondent
NEO
PITSO
6
th
Respondent
LESEGO
JANKI
7
th
Respondent
ANNETTE
VAN
WYK
8
th
Respondent
ESTELLE
DAVIES
9
th
Respondent
LEAN
LE
ROUX
10
th
Respondent
MUNICIPAL
COUNCIL: PHOKWANE MUNICIPALITY
11
th
Respondent
MPHO
MOJAKI
12
th
Respondent
JUDGMENT
Mamosebo
J
[1]
The applicants launched an urgent application on the basis that the
termination of
employment of the first applicant, Ms Busiswe Patience
Mgaguli, Acting Municipal Manager, Phokwane Municipality, was
unlawful.
They rely on two aspects, first, that the termination
amounted to a breach of contract and, secondly, that it amounted to
an exercise
of public power that breached the rule of law.
[2]
This application was set down for 20 December 2021 with severely
truncated time-periods
determined by the applicants. The Notice of
Motion was served and filed on 15 December 2021 for the respondents
to consider the
application and to file their answering affidavit by
no later than 17 December 2021 at 13:00 and for the applicants to
file their
replying affidavit by 17 December 2021. The first to
twelfth respondents filed a Notice to Oppose the application on 17
December
2021. The basis for opposition is that the application is
not urgent.
[3]
At the commencement of the hearing, Mr Ntombeni, appearing for the
applicants, took
issue in terms of the Rule 7(1) Notice pertaining to
the lack of authority of Moribe Attorneys to act on behalf of the
eleventh
respondent, the Municipal Council: Phokwane Municipality
which they served on the respondents’ legal representatives the
morning of the hearing of the application. While Mr Ngandwe, counsel
for the respondents, confirmed to only receiving the Notice
just
before the court sitting, more detail in respect of Moribe Attorneys’
locus standi
are captured in the answering affidavit with
supporting documentation and there was no need, according to him, for
the matter to
be postponed for this reason. According to Mr Ngandwe
the answering affidavit was served on 19 December 2021 at 20:53 and
the respondents
were yet to receive the replying affidavit.
Notwithstanding, both counsel indicated their readiness to argue
urgency while the
applicants sought the relief as outlined in Part A
of the Notice of Motion.
[4]
The first applicant is Ms Busiswe Patience Mgaguli, Acting Municipal
Manager, Phokwane
Municipality. The second applicant, Ms Portia
Remaketse Selogilwe, is the Speaker, while the third respondent, Mr
Tebogo Afrika
is the Mayor. The first to tenth respondents as well as
the twelfth respondents are Council members and the eleventh
respondent
is the Municipal Council: Phokwane Municipality.
[5]
The following relief is sought by Ms Mgaguli in Part A of a
two-pronged application:
“
1.
Dispensing with the forms, service, time limits and such further
requirements as may be applicable and
prescribed by the Rules of this
Honourable Court, condoning the applicants’ non-compliance
therewith and directing that this
matter be heard as one of urgency
as contemplated in terms of Rule 6(12) of the Uniform Rules of Court.
2.
That the first respondent is interdicted and restrained from
presenting himself as an acting
Speaker of Council and/or acting
under such false pretence or giving instructions or directive under
such authority within the
Municipality or publicly.
3.
The first and 10
th
respondents are interdicted and
restrained from interfering with the first applicant’s lawful
discharge of her duties and
obligations as an acting Municipal
Manager. Alternatively, first and 10
th
respondents are
interdicted and restrained from unlawfully interfering with the first
applicant’s lawful discharge of her
contractual obligations as
an acting Municipal Manager who is duly appointed.
4.
That Mr Mpho Mojaki, is interdicted and restrained from presenting
himself as an acting Municipal
Manager and/or giving instructions or
performing any such obligations or exercising any authority under
false pretence of being
an appointed acting Municipal Manager by the
first and 10
th
respondents.
5.
Declare that pending the determination of Part B, the first applicant
shall remain as an
acting Municipal Manager as duly appointed on 11
October 2021 until expiry of her contract on 14 January 2022,
alternatively until
her employment contract or administrative support
is lawfully terminated or extended by a duly authorised Council.
6.
That any party which elects to oppose the relief sought be ordered to
pay the costs of this
application on an attorney and client scale
either jointly or severally.
7.
Granting the applicants further and/or alternative relief.”
[6]
Part B is an application still to be heard seeking to review and set
aside the impugned
decision of terminating the first applicant’s
employment as an acting Municipal Manager as unlawful and invalid. A
declarator
that the Council meeting organised and convened by the
first to 10
th
respondents on 13 December 2021 and the
consequent resolutions are invalid and unlawful. A declarator that
the first to 10
th
respondents lacked the authority to
terminate the first applicant’s employment or to convene any
Council meeting and such
conduct was unlawful and invalid.
Points
in limine
[7]
The following points were raised
in limine
by the respondents:
7.1
Lack of jurisdiction
Mr Ngandwe, for the
respondents, contended that this court lacked jurisdiction to hear
this application, maintaining that the applicants
have failed to
exhaust all remedies before litigating. Counsel intimated that this
matter is not only a labour matter but it is
also political. I find
the contention that this Court lacks jurisdiction on the basis of the
issues being labour-related unsubstantiated
solely on the basis of
the Constitutional Court pronouncements in
Baloyi
v Public Protector and Others
[1]
where
Theron J remarked:
“
[15] …In
Chirwa, [Chirwa v Transnet Limited and Others
[2]
]
the majority of this Court stated that ‘the jurisdiction of the
High Court is not ousted simply because a dispute is one
that falls
within the overall sphere of employment relations’”.
The Concourt went further
to state:
“
[33] In
Gcaba, this Court made clear that an assessment of jurisdiction must
be based on an applicant’s pleadings, as
opposed to the
substantive merits of the case. It held:
‘
In the event of
the Court’s jurisdiction being challenged ….. the
applicant’s pleadings are the determining factor.
They contain
the legal basis of the claim under which the applicant seeks to
invoke the court’s competence. While the pleadings
–
including in motion proceedings, not only the formal terminology of
the notice of motion, but also the contents of the
supporting
affidavits – must be interpreted to establish what the legal
basis of the applicant’s claim is, it is not
for the court to
say that the facts asserted by the applicant would also sustain
another claim, cognisable only in another court.
If however the
pleadings, properly interpreted, establish that the applicant is
asserting a claim under the LRA, one that is to
be determined
exclusively by the Labour Court, the High Court would lack
jurisdiction.’”
Regard being had to
the pleadings in the notice of motion and the relief sought, it is my
view
that
this matter is not within the exclusive
jurisdiction of the Labour Court and that makes the submission that
it is a labour matter
unsubstantiated.
Invoking Clause 24 (“MS1”
to the founding papers) of the Phokwane Local Municipal Council
Standing Orders By-Law, Mr
Ngandwe submitted that the eleventh
respondent is empowered to rescind its own resolution either at an
Ordinary Meeting or at an
Urgent Special Council Meeting, which has
not been done.
Clause 24 stipulates:
“
Motion to
rescind any resolution passed within the preceding three months
(1)
When a member proposes a motion in terms of provisions of
section 21 which –
(a)
is aimed at the revocation or amendment of a resolution of the
Council taken within the preceding three months, or
(b)
has the same purport as a motion which has been negative
within the preceding three months such motion shall be placed on the
agenda
only if the notice of such motions is signed by three members
in addition to a member who proposes such motion.
(2)
A motion similar to the one which was disposed of in terms of
subsection (1), shall not again be proposed by a member before the
expiry of six months after such disposal.
(3)
Notwithstanding the provisions of subsection (1) and (2), the
Council may at any time rescind or amend a resolution in pursuance
of
a recommendation of the Executive Committee contained in a report in
accordance with section 15.
In countering this
submission, Mr Ntombeni argued that the application is not dealing
with the resolution in terms of section 15.
I do not agree. The
appointment of the first applicant was by resolution of Council and
nothing stops Council, the eleventh respondent
in this instance, to
rescind its own resolutions passed within the preceding three months.
In as far as this
aspect is concerned, the respondents have illustrated but one of the
alternative remedies available to the applicants
.
7.2
Separation of powers
The contention raised
under this point is that should this Court entertain this matter it
will be at risk of acting at variance
with the doctrine of separation
of powers. This point ties in with the argument that this case is
political and must be left to
the politicians to sort it out failing
which the court will be encroaching in the sphere of other organs of
the state.
Majiedt JA, then, made
insightful remarks in
Cathay
Pacific Airways Ltd & Another v Lin & Another
[3]
when he
said
:
“
[1]
Judges wield enormous power in their courts. Judges decide, sometimes
conclusively, the rights and obligations
of the parties before them.
They are independent, subject only to the Constitution and the law,
which they are constrained to apply
impartially and without fear,
favour or prejudice. But these powers must be exercised with great
responsibility and abundant caution.
The overriding consideration in
every matter must indubitably be the interests of justice. The
blindfolded Lady Justice balancing
the scales in her left hand and
holding a sword in her right hand personifies the moral force of
justice. While all three of these
attributes of our system of justice
come to the fore in this matter, it is the balancing of the scales of
justice that is paramount.”
The aforementioned
quotation, in my view, addresses the role of the Judge and the courts
in any matter, political or otherwise and
what is of paramount
importance, as already stated by the SCA in
Cathay
is to
balance the scales of justice.
7.3
Misjoinder
Mr Ngandwe submitted that
the Speaker (second applicant) and the Mayor (third applicant) are
misjoined in this application because
they have no direct and
substantial interest in the matter and although they have filed
confirmatory affidavits, which are, so
the argument went, generic,
they do not aver being aggrieved. In countering the submission, Mr
Ntombeni argued that the Speaker
convened, chaired and adjourned the
meeting of Council on 13 December 2021 and the third applicant is the
Mayor who is the head
of the administration.
Both the second and third
applicants have filed their confirmatory affidavits supporting the
application. Since they neither deny
nor admit that they have a
substantial interest in the matter, it follows that they will both be
bound by the outcome.
Urgency
[8]
The issue of urgency remains alive. There are varying degrees of
urgency. The respondents
maintain that the application is not urgent.
It follows that I have to deal with it elaborately since it may be
dispositive of
the entire application.
[9]
It is trite that urgent applications are brought in terms of rule
6(12) of the Uniform
Rules of Court. I take cue from the guidelines
as enunciated in, amongst others, the classical cases like
Die
Republikeinse Publikasies (Edms) Bpk v Afrikaanse Pers Publikasies
(Edms) Bpk
[4]
and
Luna
Meubelvervaardigers
(Edms) Bpk v Makin and Another t/a Makin’s Furniture
Manufacturers
[5]
.
[10]
The applicants deal with urgency at para 5 of the founding affidavit,
which read:
“
5.
URGENCY
5.1
I have been advised that any party which approach this Honourable
Court on an urgent basis for a relief,
such a party shall be required
in order to succeed with an urgent application to clearly set out the
reasons and circumstances
in the founding affidavit, which the
Applicant alleges render the matter urgent and why the Applicant will
not be afforded substantial
redress at a hearing in due course.
Accordingly, I now turn to set out grounds why this matter should be
enrolled and be heard
on an urgent basis.
5.2
The Applicants only became aware of the termination of the First
Applicant’s employment contract
on 14 December 2021, and the
purported appointment of the 12th Respondent as an acting municipal
manager, and the masquerading
of the First Respondent as an acting
speaker of the Council.
5.3
This application was brought pursuant to the sheer lawlessness
contained in the letter dated 13 December
2021, which I have already
referred above. In the aforesaid letter the First to Ten Respondents
brazenly, and unlawful give wide
ranging of instructions while
pretending to exercise a power which they don’t have in law in
perpetuation of falsehood.
5.4
The First Applicant was unlawful[ly] given an ultimatum to handover
her obligation and to vacate her
position on [or] before 14 December
2021. It is the Applicants’ contention that such conducts were
unlawful and constitute
undue interference in the administration of
the municipality. The First to Ten Respondents appears determine[d]
to use unlawful
means to prevent a duly appointed acting municipal
manager to carry out her duties as required in law. Secondly, the
First to Ten
Respondents have anointed themselves with powers which
are only vested in the Municipal Council and the Speaker, and they
are busy
giving unlawful instructions under such false pretence and
this is negatively impacting on the proper function of the
administration.
5.5
The Applicants are fearful that should anyone act on the unlawful
instructions of the First to Ten Respondents,
chaos will ensue which
will cripple the ability of the municipality from providing service
delivery. The Conduct of the First to
Third Respondent will render
the municipality ungovernable and collapse the capacity of the
municipality to provide basic services
as entailed in the
constitution.
5.6
The Conduct of the First to Ten Respondent is unlawful, and the
meeting which they convened or orchestrate
or engineer the creation
of the parallel structures was plainly unlawful. It is submitted that
there is no persons or entity which
is allowed to exercise more
powers than it has, or powers which are not confer[red] in law. The
conduct of the First to Ten Respondents
amount from taking the law
into their hands and cannot be allowed in a democratic society which
is founded on the supremacy of
the Rule of law, and supreme
constitution.
5.7
The Applicant approaches this Honourable Court on an extremely urgent
basis to avert a calamity which
may ensue should the unlawful
instructions to the First to Ten Respondents be carried. The
Applicant is duty bound to comply with
the law, and to act in haste
manner would be contrary to the duties imposed by the constitution.
5.8
The letter dated 14 December 2021 creates the impression that there
are two persons who are either appointed
as acting municipal
managers, or that I have been removed from office or my contract is
terminated. I submit that this is untenable
situation which is false
created by the First to Ten Respondents. It is submitted that this
creates instability within the municipality
and makes it intolerable
for me to perform my function or for the speaker to do so. The First
to Ten Respondent have no authority
to terminate or appoint any
person, or to convened Council meetings, and this cannot be allowed
unabated.
5.9
The First to Ten Respondents’ conduct directly undermined the
authority of the legitimate structures,
and the decorum of the
Council. Their conduct seems to be aimed at creating a shadow Council
to delegitimize the existence of the
Speaker and render the
administration of the municipality unworkable. It is submitted that
this is unlawful, and ought to be curbed
on an extremely urgent
basis.
5.10 I have been
advised that the question of whether a matter is sufficiently urgent
to be enrolled and heard as an urgent
application is underpinned by
the issue of absence of substantial redress in an application in due
course. Accordingly, I submit
that the Applicant would be not
substantial redress in due course.
5.11 The
applicant will have no substantial redress in due course and cannot
wait for the hearing in the normal Court Roll
as the First to Ten
Respondents are currently exerting pressure on the Applicants to
vacate her position despite the unlawfulness
of such instructions.
Furthermore, the First Applicant would not obtained substantial
redress in due course if the application
is brought in the ordinary
course because her employment contract as an acting Municipal Manager
would have expired on 14 January
2022, which she seeks to protect. If
the application is not heard on extremely urgent basis, it will be
unlikely that it would
have been heard before the 14 January 2022.
5.12 The First
to Ten Respondents have abused their powers in purporting to
terminate my employment contract and contravening
the alleged Council
meeting which purport to have appointed the First Respondent as
acting speaker. It is submitted that the First
Ten Respondents lack
authority to terminate my employment contract or appoint any person
or to convene a council. As a result,
I respectfully submit that an
abuse of public power is inherently urgent, and the Court is obliged
to curb same.
5.13 The ongoing
lawlessness perpetuated by the First to Ten Respondents would
diminish the capacity of the Municipality to
render service delivery
as constitutional mandated, and an impact of same would be far
reaching to the communities which desperately
depend on the
municipality for services. The Applicant would have no substantial
redress in due course. The Court is obliged to
immediately put an end
to the perpetuation of the lawlessness.
5.14 I also wish
to immediately point out that this application is not based on a
self-created urgency nor attempts by the
Applicant to circumvent the
proper functioning of the Court to jump the que[ue], in fact, far
from it, this application constitutes
a sincere effort to resolve the
matter since they would be no substantial redress in due course.
5.15 In the
premises, it is submitted that it is just and equitable, and in the
interests of justice, that this application
be heard on an urgent
basis.
5.16 The
Applicant submits that there is prospect of success in the
declaratory application and it would not be just and equitable
for
Applicants to be forced to vacate her position which she was duly
appointed by Council to facilitated service delivery, otherwise
to do
so will have a devastating impact on the financial being of the
Municipality and create instability which will impede on
service
delivery.
5.17 I wish to
point out that an attempt to have the First to Ten Respondents
withdraw their unlawful instructions and desist
from such unlawful
conduct has dismal failed. The Respondents were served with a letter
requesting them to give undertaking however,
they have failed to do
so. I have attached a copy of a letter marked annexure “FA8”
5.18 Under the
circumstances, I respectfully submit that a court is obliged to enrol
and hear this mater as an urgent application,
and the short notice
for service is justified by the degree of urgency in this matter, and
the continue act of unlawfulness which
has placed the municipality at
the verge of collapse and instability.”
[11]
Essentially, and gleaning from the aforementioned explanation to
support the basis for urgency,
what the first applicant is seeking is
addressing her employment contract as the acting municipal manager
and the concern around
the unlawfulness of her removal by letter
dated 13 December 2021 which effectively denies her the opportunity
to complete her term
of contract which would end on 14 January 2022.
[12]
Rule 6(12)(b) of the Uniform Rules of Court provides:
“
In every
affidavit or petition filed in support of any application under
paragraph (a) of this sub-rule, the applicant
must set
forth explicitly the circumstances which is averred render the matter
urgent and the reasons why the applicant claims that
the applicant
could not be afforded substantial redress at a hearing in due
course.”
(own emphasis) Should I find that the matter
urgent, I have the discretion to dispense of the forms and service
provided for in
the rules.
[13]
The onus is on the applicants to illustrate that they will not be
afforded substantial redress
if the matter is not on an urgent basis
and this does not equate to irreparable harm, which is one of the
requirements to be met
when seeking an interim interdict. See
East
Rock Trading 7 (Pty) Ltd and Another v Eagle Valley Granite (Pty) Ltd
and Others.
[6]
[14]
One would have hoped that the many admonitions concerning what is
required of an applicant in
an urgent application would be trite
knowledge among practitioners who are entrusted with the preparation
to this Court. In
Luna
Meubelvervaardigers
[7]
Coetzee J
emphasised
the following factors, which have been cited with approval in
numerous divisions of the courts:
“
For the sake of
clarity I am going to set forth the important aspects of ‘urgency’.
In doing so I shall not deal with
those ex parte applications which
fall under Rule 6(4). Urgency involves mainly the abridgement of
times prescribed by the Rules
and, secondarily, the departure from
the established filing and sitting times of the Court. The following
factors must be borne
in mind. They are stated thus, in ascending
order of urgency:
1.
The question is whether there must be a departure at all
from the times prescribed in Rule 6(5)(b)
. Usually this
involves a departure from the time of seven days which must elapse
from the date of service of the papers until the
stated day for
hearing. Once that is so, this requirement may be ignored and the
application may be set down for hearing on the
first available motion
day
but regard must still be had to the necessity of filing
the papers with the Registrar
by the preceding Thursday so
that it can come onto the following week’s motion roll which
will be prepared by the Motion Court
Judge on duty for that week.
2.
Only if the matter is so urgent that the applicant cannot
wait for the next motion day,
from the point of view of
his obligation to file papers by the preceding Thursday, can he
consider placing it on the roll for the
next Tuesday, without having
filed his papers by the previous Thursday.
3.
Only if the urgency be such that the applicant dare not
wait even for the next Tuesday,
may he set the matter down
for hearing on the next Court day at the normal time of 10:00 a.m. or
for the same day if the Court has
not yet adjourned.
4.
Once the Court has dealt with the causes for that day and
has adjourned,
only if the applicant cannot possibly wait
for the hearing until the next Court day at the normal time that the
Court sits, may
he set the matter down forthwith for hearing at any
reasonably convenient time, in consultation with the Registrar, even
if that
be at night or during a weekend.
Practitioners
should carefully analyse the facts of each case to determine, for
purposes of setting the case down for hearing, whether
a greater or
lesser degree of relaxation of the Rules and of the ordinary practice
of the Court is required. The degree of relaxation
should not be
greater than the exigency of the case demands. It must be
commensurate therewith. Mere lip service to the requirements
of Rule
6(12)(b) will not do and an applicant must make out a case in the
founding affidavit to justify the particular extent of
the departure
from the norm, which is involved in the time and day for which the
matter be set down.”
(Own emphasis)
[15]
In as far as procedural issues are concerned, it must be established
whether the applicants have
complied with the procedural
requirements, that is, whether all the papers were properly indexed
and paginated and filed before
the date of the hearing, which is the
Thursday preceding 20 December 2021. According to their own
arrangement, the respondents
were served on 15 December 2021 while
the Answering Affidavit and the Replying Affidavit were to be served
and filed on 17 December
2021. This did not happen. As a result, the
Replying Affidavit was not served on the respondents until the
hearing commenced.
[16]
Not only were the respondents not afforded sufficient time to answer
to the allegations in the
founding affidavit, file affidavits and to
attend court but the papers in this matter were also filed in drips
and drabs just as
the parties wished including during the hearing.
The replying affidavit was handed up and consequently I have not had
opportunity
to read it before the application was argued and further
it was not served on the respondents.
[17]
The relief the applicants seek amount to restoring the
status quo
of the first applicant as the acting Municipal Manager.
Unquestionably, her contractual term expires on 14 January 2022. She
is
urging this Court to restrain and prohibit the twelfth respondent
from exercising the functions of the acting Municipal Manager
because
he was purportedly unlawfully placed in that position. The contention
by the respondents is that the first applicant was
removed by a
properly constituted Council of the majority of 10 out of 19
councillors and in an ordinary council meeting.
[18]
Moseneke DCJ sounded this warning in dealing with interim relief
pending a review in
National
Treasury and Others v Opposition to Urban Tolling Alliance and
Others
[8]
“
[26] A
court must also be alive to and carefully consider whether the
temporary restraining order would unduly trespass upon
the sole
terrain of other branches of Government even before the final
determination of the review grounds. A court must be astute
not to
stop dead the exercise of executive or legislative power before the
exercise has been successfully and finally impugned
on review. This
approach accords well with the comity the courts owe to other
branches of Government, provided they act lawfully.
Yet another
important consideration is whether in deciding an appeal against an
interim order, the appellate court would in effect
usurp the role of
the review court. Ordinarily the appellate court should avoid
anticipating the outcome of the review except perhaps
where the
review has no prospects of success whatsoever.”
[19]
In
Mogalakwena
Local Municipality v The Provincial Executive Council, Limpopo and
Others
[9]
the
Court held
:
“
It seems to me
that when urgency is an issue the primary investigation should be to
determine whether the applicant will be afforded
substantial redress
at a hearing in due course. If the applicant cannot establish
prejudice in this sense, the application cannot
be urgent. Once such
prejudice is established, the other factors come into consideration.
These factors include (but are not limited
to): Whether the
respondents can adequately present their cases in the time available
between the notice of the application to
them and the actual hearing,
other prejudice to the respondent’s and administration of
justice, the strength of the case
made by the applicant and any delay
by the applicant in asserting its rights. The last factor is often
called, usually by counsel
acting for the respondents, self-created
urgency.”
[19]
The responsibility still lies with the applicants to meet the
requirements for urgency. The explanation,
if any, by the applicants
of their belief that substantial redress in due course would be
unattainable has, in my view, not satisfied
the requirement to be
met.
[20]
In any event, the applicants have to meet the test for interim
relief, namely, the well-known
requirements for the grant of an
interim interdict set out in
Setlogelo
v
Setlogelo
[10]
.
The test requires that an applicant that claims an interim interdict
must establish (a) a
prima
facie
right even if it is open to some doubt; (b) a reasonable apprehension
of irreparable and imminent harm to the right if an interdict
is not
granted; (c) the balance of convenience must favour the grant of the
interdict and (d) the applicant must have no other
remedy. From the
submissions made on behalf of the applicants, I am also not persuaded
that these requirements have been met.
[21]
I am not convinced that the averments by the first applicant in the
founding papers pertaining
to termination of her appointment as
acting Municipal Manager under the circumstances as she has described
them are sufficient
to cause this Court to find the matter urgent.
This Court cannot be seen to treat all matters, where a party is
aggrieved by a
decision or conduct of another as urgent. Should that
be the case, it will create a wrong precedent and open floodgates of
unmerited
urgent applications based on the slightest complaints
instead of pursuing available internal remedies. While each case must
be
weighed on its own merits, generally, the Courts should not be the
first port of call in such instances.
[22]
Regard being had to the afore-mentioned reasons, I find that the
application is not urgent. I
refrain from dealing with the merits of
the matter. The applicants’ attorneys should approach the
Registrar for an expedited
review date during term. That is where all
the issues will be fully ventilated after a proper exchange of
documents between the
parties and a properly updated, indexed and
paginated court file.
Costs
[23]
Counsel for the applicants argued for costs in their favour and added
that this matter was not
so complex as to justify costs for two
counsel. Counsel for the respondents sought costs for both counsel in
the event that the
respondents were the successful party. It will be
more sensible at this stage to reserve the issue of costs for later
determination,
which is when Part B of the application is heard.
[24]
The following order is made:
1.
The application is struck off the roll.
2.
Costs are reserved for later determination.
________________
M.C.MAMOSEBO
JUDGE
OF THE HIGH COURT
NORTHERN
CAPE DIVISION
For
the Applicants:
Adv. P Ntombeni
Instructed
by:
Mjila and Partners Inc
For
the Respondent:
Adv. PJ Ngandwe & Adv. K Lefaladi
Instructed
by:
Moribe Attorneys Inc
c/o
Mkhokeli Pino
[1]
(CCT 03/20)
[2020]
ZACC 27
;
2021 (2) BCLR 101
(CC);
[2021] 4 BLLR 325
(CC); (2021) 42
ILJ 961 (CC) (4 December 2021) at para 15
[2]
(CCT
78/06)
[2007] ZACC 23
;
2008 (4) SA 367
(CC);
2008 (3) BCLR 251
(CC);
[2008] 2 BLLR 97
(CC); (2008) 29 ILJ 73 (CC) (28 November 2007)
[3]
(260/2016)
[2017] ZASCA 35
(29 March 2017)
[4]
1972
(1) SA 773
(A) at para 782A - G
[5]
1977
(4) SA 135 (W)
[6]
[2012]
JOL 28244
(GSJ) at para 7
[7]
At
136H – 137F
[8]
(CCT 38/12)
[2012] ZACC 18
;
2012 (6) SA 223
(CC);
2012 (11) BCLR
1148
(CC) (20 September 2012)
[9]
(2014)
JOL 32103
(GP) at paras 63 - 64
[10]
1914
AD 221
at 227