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[2019] ZALMPPHC 42
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Mphephu and Another v Mashau and Another (HCAA15/2019) [2019] ZALMPPHC 42 (23 August 2019)
REPUBLIC OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(LIMPOPO
DMSION, POLOKWANE)
(1)
REPORTABLE:
YES
/NO
(2)
OF
INTEREST TO OTHER JUDGES: YES/
(3)
REVISED.
CASE NO: HCAA15/2019
23/8/2019
In
the matter between:
MPHEPHU
MATODZI ROBERT
FIRST APPELLANT
MALULEKE
NYUMANI NOBRIDE
SECOND APPELLANT
and
MASHAU
PFUNZO LAWRENCE
FIRST RESPONDENT
VHEMBE
FM
NPC
SECOND RESPONDENT
JUDGMENT
MAKGOBA
JP
[1]
This
is an appeal against the judgment and order of a single Judge of the
Limpopo Local Division, Thohoyandou (Makhafola J) granting
the
Respondents an order in terms of
section 18
of the
Superior Courts
Act 10 of 2013
, putting into operation and execution a· Court
order pending the outcome of the Applicants / Appellants application
for
leave to appeal. The Appellants approached the Full Court after
the Court a
quo
had refused
their application for leave to appeal and have therefore exercised
their automatic right of appeal in terms
section 18(4)(ii)
of the
Superior Courts Act 10 of 2013
.
[2]
On
26 June 2019 the First Respondent was dismissed from his employment
as the station manager of the Second Respondent. Aggrieved
by such
dismissal the First Respondent launched an application for
reinstatement which application was granted by the Court a
quo
on the 7 July 2019.The Appellants
herein filed an application for leave to appeal against the aforesaid
order on 8 July 2019. On
the 18 July 2019 the Respondents filed an
application in terms of
section 18
of the
Superior Courts Act, 2013
.
The Court a
quo
granted
the Respondents' application on 23 July 2019 thus putting into
operation and execution the order granted on 7 July 2019.
Aggrieved
by the aforesaid order the Appellants noted the present appeal in
terms of
section 18(4)(ii)
of the
Superior Courts Act
, 2013.
[3]
Section
18
of the
Superior Courts Act reads
as follows:
"Suspension
of decision pending appeal
(1)
Subject
to subsections (2) and (3),
and
unless the court under exceptional circumstances orders otherwise,
the operation and execution of
a
decision which
is
the subject of an application for
leave to appeal or of an appeal, is suspended pending the decision of
the application or appeal.
(2)
Subject
to subsection (3), unless the court under exceptional circumstances
orders otherwise, the operation and execution of a decision
that
is
an interlocutory order not having the
effect of
a
final
judgment, which is the subject of an application for leave to appeal
or of an appeal, is
not
suspended pending the decision of the application or appeal.
(3)
A
court may only order otherwise as contemplated in subsection (1) or
(2), if the party who applied to the court to order otherwise,
in
addition proves on
a
balance
of probabilities that he or she will suffer irreparable harm if the
court
does
not
so
order
and that the other party will not suffer irreparable harm if the
court
so
orders.
(4)
If
a
court
orders otherwise,
as
contemplated
in subsection (1)
(i)
the
court must immediately record its reasons for doing
so;
(ii)
the aggrieved party has an
automatic right of appeal to the next highest court;
(iii)
the court hearing such an appeal
must deal with it
as a
matter
of extreme urgency; and
(iv)
such order will be automatically
suspended, pending the outcome of such appeal.
(5)
For
the purposes of subsections (1) and (2), a decision becomes the
subject of an application for leave to appeal or of an appeal,
as
soon
as
an application for leave to appeal or
a notice of appeal is lodged with the registrar in terms
of
the rules."
[4]
Subsections
18(1) and (3) of the Act in essence provide for a two-fold enquiry in
that the following requirements must be met before
an order appealed
against can be put into operation pending the outcome of the appeal:
1.
First, whether or not exceptional
circumstances exist and
2.
Second, proof on a balance of
probabilities by the Applicant of -
2.1.
The
presence of irreparable harm to the applicants / victor, who wants to
put into operation and execute the order; and
2.2.
The
absence of irreparable harm to the respondent / loser, who seeks
leave to appeal
[1]
.
[5]
The
test to be applied by a Court in deciding whether or not to suspend a
Court order by virtue of the provisions of
section 18(1)
(and the
observe situation arising from
section 18(2))
has been the subject of
a fair amount of judicial scrutiny. In particular, there have been
conflicting decisions with regard to
whether or not the Court ought
to take into account the question of prospects of success on appeal.
The latter question, and the
test itself, has been settled by the
Supreme Court of Appeal in the matter of
University
of The Free State v Afriforum
[2]
.
In that matter the appeal Court
found that the Legislature has proceeded from established premise of
the common law that the granting
of relief of this nature constitutes
an extraordinary deviation from the norm that, pending an appeal, a
judgment and its attendant
orders are suspended. The exceptionality
of such an order is also underscored by the requirements of
section
18(4)
which provides for,
inter alia,
an automatic right of appeal on an
urgent basis. The appeal Court also found that the requirements
introduced by
section 18(1)
and (3) are more onerous than the common
law requirements which existed previously and that
section 18(3)
has
introduced
“
a
higher
threshold, namely proof on a balance of probabilities that the
Applicant will suffer irreparable harm if the order is not
granted,
and conversely that the Respondent will not if the order is
granted”
[3]
.
[6]
In
Afriforum,
supra,
the Court found that prospects of success in the pending appeal ought
to play a role in the consideration as to whether or
not to grant
such an order. In doing so, the appeal Court confirmed a dictum by
Binns-Ward J in the case of
Minister
of Social Development Western Cape and Others v Justice Alliance of
South Africa and Another
[4]
as follows:
"The
less sanguine
a
Court
seized of an application in terms of
s 18(3)
is about the prospects
of the judgment at first instance being upheld on appeal, the less
inclined it will be to grant the exceptional
remedy of execution of
that Judgment pending the appeal. The same quite obviously applies in
respect of a Court dealing with an
appeal against an order granted in
terms of
s 18(3).
"
[7]
Whether
or not exceptional circumstances for the purpose of
section 18(1)
are
present, must necessarily depend on the peculiar facts of each case.
In
lncubeta
Holdings (Pty) Ltd v Ellis
[5]
at paragraph 22 Sutherland J put it
as follows:
"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".
We agree and wish to add that in evaluating the
circumstances relied upon by an, Applicant, a Court should bear in
mind that what
is sought is an extraordinary deviation from the norm,
which, in turn, requires the existence of truly exceptional
circumstances
to justify the deviation.
Whether or not exceptional circumstances exist
is not a decision which depends upon the exercise of a judicial
discretion, their
existence or otherwise is a matter of fact which
the Court must decide accordingly.
[8]
It
is now trite that the prospects of success in the pending appeal
plays a role in the consideration as to whether or not to grant
an
order in terms of
section 18
of the
Superior Courts Act, 2013
. The
Court hearing an application in terms of
section 18
or an appeal
arising from such order is enjoined to peruse and consider the
judgment sought to be appeal against. In the present
appeal it will
be the judgment of the Court a
quo
delivered on the 7 July 2019.
[9]
It
is common cause that the Appellants in the present appeal failed and
/ or neglected to file of record the judgment of the Court
a
quo
sought to be appealed against. It is
against this backdrop that Mr Mokotedi, Counsel for the Respondents
argued and submitted that
the appeal record is incomplete without the
judgment of the Court a
quo
which
is sought to be appealed against. Mr Mokotedi submitted further that
the present appeal was lodged prematurely and with an
incomplete
record. He prayed that the appeal be struck from the roll with costs.
We agree.
[10] As matters stand,
this Court is not in a position to consider or assess the prospects
of success in
the
section 18
appeal without having regard to the
judgment of the Court a
quo
delivered on the 7 July 2019. The
Court record before us is incomplete for appeal purpose.
[11]
With this defect in the appeal record,
it is not necessary to go into the merits of the appeal with regard
to the existence of exceptional
circumstances and irreparable harm on
the part of any of the parties to this appeal.
[12]
Before concluding this matter, it is
appropriate to deal with one aspect which is rather worrisome to say
the least. This is a point
in limine
raised by the Respondents in their
heads of argument. The Respondents raised a point that the Limpopo
Division, Polokwane has no
jurisdiction to hear appeals from the
Limpopo Local Division, Thohoyandou. At the start of the proceedings
during the hearing of
this matter the provisions of
section 6(4)
of
the
Superior Courts Act, 2013
were read to the parties by the
presiding Judge. Thankfully, Mr Mokotedi, for the Respondents did not
persue the point
in limine
raised
in the heads of argument filed by the Respondents' attorney. It needs
to be put on record that the heads of argument were
not drawn up by
Mr Mokotedi.
[13]
For what it may be worth, we hereby
state the provisions of
section 6(4)
of the
Superior Courts Act, 2013
which read as follows:
"(4)
If
a
Division
has one or more seats
-
(a)
the main seat of that Division
has concurrent appeal jurisdiction over the area of jurisdiction of
any local seat of that Division,
and the Judge President of the
Division may direct that an appeal against
a
decision of a single Judge or
a
Magistrates' Court within that area
of jurisdiction may be heard at the main seat of the Division;
(b)
the Judge President of that
Division must compile
a
single
Court roll for that Division; and
(c)
the Judge President of that
Division may assign all the Judges of that Division within the
Division as he or she deems fit."
[14]
The provisions of
section 6(4) of the Superior Courts Act are crystal clear. In any
event our Local Division at Thohoyandou has
only three Judges. Once
an appeal is lodged against the judgment of any of them, the
remaining two Judges will not be able to constitute
a Full Court for
purposes of an appeal. We trust that this issue is clarified once and
for all even to those who are still with
stereotyped minds of the old
order.
[15]
The following order is made:
1.
The appeal is struck from the roll.
2.
The Appellants are to pay the costs of
the appeal jointly and severally, the one paying the other to be
absolved.
E M MAKGOBA
JUDGE
PRESIDENT OF THE
HIGH
COURT, LIMPOPO
DIVISION,
POLOKWANE
I
agree
A LAMMINGA
ACTING JUDGE OF THE HIGH
COURT, LIMPOPO DIVISION,
POLOKWANE
KGANYAGO J
I have had the benefit of reading
the judgment of the majority prepared by Makgoba JP. I agree with the
reasoning of the judgment
and order. However, I do not agree with the
last statement in paragraph 14 of the judgment which read as follows:
“
We trust that this issue is clarified
once and for all even to those who are still with stereotyped minds
of the old order.”
In my view, this statement is
unnecessary and was also not an issue before us. Except for what I
have stated, I will concur with
the judgment and order of the
majority.
MF HGANYANGO
JUDGE OF THE HIGH COURT,
DIVISION POLOKWANE
APPEARANCES
Heard
on
: 16 August 2019
Judgment
delivered on
: 23 August 2019
For
the Appellants
: Adv. N T Themeli
Instructed
by
: Tshitangano Attorneys
c/o M M Maiwashe Attorneys
For
the Respondents
: Adv.KM Mokotedi
Instructed
by
: V M Netshipale Attorneys
c/o D S Sello Attorneys
[1]
lncubeta Holdings (Pty) Ltd v Ellis
2014 (3) SA 189
(GJ) para 16 and
Ntlemeza v Helen Suzman Foundation and Another
[2017] 3 ALLSA 589
(SCA) at para 35;
2017 (5) SA 40
2 (SCA) at para 35-36.
[2]
2018 (3) SA 428
(SCA) paragraphs 9 - 15
[3]
UFS v Afriforum (supra) paragraphs 9 - 10
[4]
[2016] ZAWCHC 34
[5]
2014 (3) SA 189
(GJ) at paragraph 22