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2018
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[2018] ZALMPPHC 37
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Modimolle-Mookgopong Local Municipality v Maphoke P K Mogane Incorporated and Others (3406/2018) [2018] ZALMPPHC 37 (14 June 2018)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
LIMPOPO
DIVISION, POLOKWANE
CASE
NO: 3406/2018
In
the matter between:
MODIMOLLE-MOOKGOPONG
APPLICANT
LOCAL
MUNICIPALITY:
And
MAPHOKE
P K MOGANE INCORPORATED:
1
ST
RESPONDENT
THE
SHERIFF OF THE HIGH COURT
FOR
2
ND
RESPONDENT
NYLSTROOM,
MODIMOLLE & WATERBERG :
THE
LAW SOCIETY OF
3
RD
RESPONDENT
THE
NORTHERN PROVINCE:
JUDGEMENT
SEMENYA
J:
1.
The applicant launched this applicant in two parts. In part A, the
applicant seeks an order, on an urgent basis, for the suspension
of
the order granted by this court on the 17 May 2018 pending the
application for the rescission of that judgment in Part B. In
addition, the applicant seeks an order for the suspension and/or
setting aside of the writ of execution issued in terms of that
order.
2.
The parties agree that the ancillary prayer, being for the referral
of the alleged improper conduct of the 1
st
respondent to the 3
rd
respondent is a matter that cannot be heard on an urgent basis. I
find no fault in the parties’ submission. I will therefore
no
take this aspect further.
3. The 1
st
respondent in a supplementary affidavit raised a point of law that
the founding affidavit was not properly commissioned in that
the
gender of the deponent is not clear. It was submitted that the
commissioner should have deleted the he or the she whatever
the case
may be. This issue is resolved in that the commissioner of oath
deposed to an affidavit that explain that the deponent
was a female.
4.
The other issue raised by the 1
st
respondent is that of lack of authority on the part of the Municipal
Manager, the deponent to the applicant’s founding affidavit,
to
act on behalf of the applicant.
5.
On this issue, counsel for the applicant contended that the 1
st
respondent admitted the authority of the Municipal Manager to act in
his answering affidavit and can therefore not challenge it
in his
supplementary affidavit. I agree that the Municipal Manager’s
authority has indeed been admitted. It is therefore
not necessary to
take this matter further.
6.
The issue of the authority of the applicant’s attorney to act
on behalf of the applicant was also raised in the supplementary
affidavit. In answer to this point of law, the applicant attached two
letters which appointed the attorney to act on behalf of
the
applicant. In the first letter, the municipal manager states that
he/she has appointed the applicant’s attorney to serve
on the
Mookgopong Local Municipality’s panel for Legal Services. I
agree with Mr Mohoto, who appeared on behalf of the first
respodent
that the letter as it is cannot serve as authority to launch this
application. In the second letter the Senior Manager:
Corporate
Services dated the 16 June 2018 wrote that he is authorizing the
attorney to bring this instant application. Mr Mohoto
challenged the
authority of the author of the letter to appoint the attorney to act
on behalf of the applicant.
7.
What is required in Rule 7 is that the court must satisfy itself that
the attorney is so authorized to act. On this aspect, I
deem it
necessary to borrow the words used by Brand JA in Unlawful Occupiers,
School Site v City of Johhanesburg
2005 (4) SA 199
(SCA) at 207 (City
of Johannesburg), paragraph [16] in which he asked the question: “Is
it conceivable that an application
of this magnitude could have been
launched on behalf of the municipality with the knowledge but against
the advice of its own director
of legal services? The question can,
in my view, be answered only in the negative.”
8.
In bringing the sentiments made by Brand JA in City of Johannesburg
matter in line with the application before me, I find that
it cannot
be said that the Municipal Council authorized the Municipal Manager
to launch this urgent application without knowledge
of the attorney
she would have to instruct to assist her in this regard. The first
respondent’s argument that the attorney
has no authority to act
on behalf of the applicant is rejected on the authority of the City
of Johannesburg matter.
9.
The only remaining issue is one for urgency. It was argued on behalf
of the first respondent that the municipality has an alternative
relief in the form of an interpleader application. That all it has to
do is to inform/instruct the sheriff launch the application.
It was
further submitted that the urgency is self-created on the basis that
the municipality would not have found itself in this
position, had it
paid the first respondent’s claim in time.
10.
Counsel for the applicant argued that the first respondent’s
argument is misplaced. It was submitted that it is not the
applicant’s case that the judgment granted in favour of the
first respondent in correct, hence the application to have it
rescinded. It was contended that interpleader proceedings application
can only be launched where the goods of a third party is
attached on
the strength of a valid order. It was further contended that the
first respondent’s argument loses sight of the
fact that the
application is brought in terms of Rule 45A.
11.
Rule 45A provides as follows:
“
The
court may suspend the execution of any order for such period as it
may deem fit.
12.
I
n
exercising its discretion to suspend a court order the court in
Soja
Ltd v Tuckers Land Develop Corp
1981 (1) SA 407
(W) at 411
took
into consideration the interest of justice in the applicant
retaining the opportunity of showing that the judgment appealed
against is incorrect, the prejudice to the applicant if the sale
proceeds and the right to appeal is frustrated, is manifest.
It also
considered the prejudice that the respondent would suffer if the
order is suspended.
13.
In the present matter, the applicant has already made an application
for the rescission of the order granted in favour of
the first
respondent. The property which is attached is highly necessary in
the applicant’s duty to carry out its constitutional
mandate
to provide services to the citizens. Should the sale in execution
proceed, the cash strapped municipality may find it
difficult to
replace the vehicles.
14.
I agree with counsel for the applicant that the first respondent
failed to show any form of prejudice that he may suffer should
the
application succeed. I cannot find any prejudice that the first
respondent may suffer either. It would be proper to allow the
application for rescission to take its cause. The first respondent
would be entitled to payment should the application fail.
15.
In
Gois
t/a Shakespear’s Pub v Van Zyl and Others
2011 (1) SA 148
(LC)
the court held that the stay of execution will be granted where the
underlying causa is the subject matter of an ongoing dispute
between
the parties. It was further held that an application for review, as
in the present case, qualifies as an attack on the
underlying causa.
16.
I find that the applicant has made out a case for urgency in that an
interpleader proceeding would delay the provision of services
to the
citizens. It will further leave the applicant at the mercy of the
sheriff. Furthermore, the validity of the order made in
favour of the
applicant is disputed.
17.
I therefore make the following order:
(i). The attachment of the applicant’s
property in terms of a writ of execution is suspended pending the
determination of
the application for the rescission of the order
granted by this court on the 17 May 2018.
(ii) Costs to be
costs in the rescission application.
M.V
SEMENYA
JUGDE OFTHE HIGH COURT; LIMPOPO
DIVISION
APPEARANCES
FOR THE APPLICANT
: ADV. D VAN DEN BOGERT
INSTRUCTED BY
: GEYSER & FERREIRA INC
FOR THE RESPONDENT: MR MOHOTO
INSTRUCTED BY
: TP MOLOTO ATTORNEYS
DATE OF HEARING
: 12 JUNE 2018
DATE OF JUDGEMENT
: 14 JUNE 2018