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[2016] ZAGPPHC 1167
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Member of the Executive Council for Co-operative Governance, Human Settlements and Traditional Affairs (COGHSTA) and Others v Mogalakwena Municipality and Another (89657/2014) [2016] ZAGPPHC 1167; 2017 (2) SA 464 (GP) (10 November 2016)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
10/11/2016
CASE
NO: 89657/2014
A848/16
REPORTABLE
OF
INTEREST TO OTHER JUDGES
REVISED
In
the matter between
MEMBER
OF THE EXECUTIVE COUNCIL
FOR
CO-OPERATIVE GOVERNANCE, HUMAN
SETTLEMENTS
AND TRADITIONAL AFFAIRS
(COGHSTA)
1ST
APPELLANT
THAPELO
MATLALA 2ND
APPELLANT
TLHALEFI
ANDRIES MASHAMAITE 3RD
APPELLANT
L.D
LANGA 4TH
APPELLANT
N.S
MONTANE 5TH
APPELLANT
M.A
TSEBE
6TH
APPELLANT
M.R
LEBELO
7TH
APPELLANT
VAALTYN
KEKANA 8TH
APPELLANT
SANNY
TLHAKU 9TH
APPELLANT
SAMUEL
MATHEBULA 10TH
APPELLANT
LESIBA
JACOB MASHALA 11TH
APPELLANT
LESIBA
JACKSON MATHABATE 12TH
APPELLANT
RAMASELA
LINAH MAHLAELA 13TH
APPELLANT
MOKGAETI
FRANCINA MUTSHIMYA 14TH
APPELLANT
RAMOKONE
MINKY MOLEKOA 15TH
APPELLANT
DAVID
MAGONGOA 16TH
APPELLANT
LESTJA
CHARLES KGANYAGO 17TH
APPELLANT
MONICCA
SENOAMADI 18TH
APPELLANT
ERNEST
RAMTHUPA 19TH
APPELLANT
NELSON
NGWETJANA 20TH
APPELLANT
NAKEDI
MABULA 21ST
APPELLANT
NELLY
MONENE 22ND
APPELLANT
LESIBA
JAIRUS LEBELO 23RD
APPELLANT
LG
LEGODI 24TH
APPELLANT
EMILY
MANGANYI 25TH
APPELLANT
LEBOGANG
BRENDA MOKGOTHO 26TH
APPELLANT
MAPHUTI
REHAD LEBELO 27TH
APPELLANT
MAMMA
MILOANE 28TH
APPELLANT
ENOCK
MANAMELA 29TH
APPELLANT
LAWRENCE
SOMO 30TH
APPELLANT
RAISIBE
ANDRINA MATSAMELA 31ST
APPELLANT
ZUNAID
SURTEE 32ND
APPELLANT
MANKOPANE
MICHAEL RAPATSA 33RD
APPELLANT
MALESELA
FRANS MOKWELE 34TH
APPELLANT
LESETJA
PHILLEMON ERIC GWANGWA 35TH
APPELLANT
MAHLODI
JOSEPHINE MADIBA 36TH
APPELLANT
MADIBANA
CATHY LENTSOANE 37TH
APPELLANT
MAPULA
SHIRLEY TEFU 38TH
APPELLANT
MANKALE
SOLOMON MOLABA 39TH
APPELLANT
P.P
SELEPE 40TH
APPELLANT
MINISTER
OF POLICE 41ST
APPELLANT
NATIONAL
COMMISSIONER OF SOUTH
AFRICAN
POLICE SERVICE 42ND
APPELLANT
PROVINCIAL
COMMISSIONER OF POLICE
SERVICE,
LIMPOPO PROVINCE 43RD
APPELLANT
STATION
COMMISSIONER, SOUTH AFRICAN
POLICE
SERVICE,
MOKOPANE,COL.
MOGWANENG 44TH
APPELLANT
Vs
MOGALAKWENA
MUNICIPALITY FIRST
RESPONDENT
SHELLA WILLIAM
KEKANA SECOND
RESPONDENT
JUDGMENT
RANCHOD
J:
[1]
In this matter the second respondent Mr Shella William Kekana (Mr
Kekana) applied in the Court
a quo
for an order that he be
reinstated as the Municipal Manager of the Mogalakwena Local
Municipality (the first respondent). He alleged
that he had been
unlawfully ousted from the position by the appellants. The court
a
quo
(per Hiemstra AJ) granted the order on 1 April 2016. (I shall
refer to that application as the 'main application'). It is not
necessary
for the purposes of this judgment to deal with the facts in
the main application in any detail as it is presently the subject of
an appeal in the Supreme Court of Appeal - leave to appeal having
been granted by the court
a quo
. There is some dispute about
who the appellants are. But it is something to be determined, if
necessary, in the appeal in the main
application. I shall refer to
the appellants who appeared before the court
a quo
.
[2]
The effect of granting leave to appeal in the main application is
that the order granted became suspended in terms of s18(1)
[1]
of the Superior Courts Act 10 of 2013
(the Act) which came into operation on 23 August, 2013.
[3]
Mr Kekana therefore applied for an order in terms of s 18(1) that the
order granted in the main application be executed pending
the appeal.
The court
a quo
granted the order on 8 July 2016.
[4]
On the same day the 2nd to 38th appellants served a notice of appeal
in terms of s 18(4) of the Act on the attorneys of the
respondents
indicating that they are appealing against the order to the Supreme
Court of Appeal (the SCA). The effect was that
the enforcement order
granted in terms of s18 (1) became suspended in accordance with s18
(4) (iv)
[2]
[5]
On 12 July 2016 the respondents' attorneys addressed a letter to the
Registrar of the SCA submitting that the notice of appeal
is fatally
defective in that the "next highest court" referred to in
s18(4)(ii)
[3]
of the Act refers (in this instance)
to the full Court of the Gauteng Division of the High Court and not
the SCA It was further
contended that the appellants deliberately
filed the notice of appeal in the SCA in order to further delay the
operation of the
order granted on 1 April 2016 in the main
application.
[6]
In reaction to the letter, the attorneys of the 2nd to 381h
appellants also wrote to the Registrar of the SCA in which they
submitted that the SCA had a discretion and the jurisdiction to deal
with the s18 (4) appeal. Further, that it would be convenient
for the
latter appeal to be dealt with by the SCA as it will in any event be
hearing the appeal in the main application.
[7]
The Registrar of the SCA responded in a letter dated 20 June 2016 as
follows:
'I acknowledge receipt of your letter
of 14 July 2016 which was referred to the Acting President for his
attention. He has asked
me to respond thereto as follows:
1. In the Ntlemeza matter the court
never had the opportunity to consider the meaning of the expression
'next highest court of appeal'
contemplated in
section 18
of the
Superior Courts Act.
2. As
things stand now, it appears
that the Gauteng Division of the High Court has dealt with at least
two such urgent appeals in terms
of
section 18...
. The practice in
that Division therefore binds the parties until a contrary decision
is made, in which event this court will be
called upon to settle the
issue.
3. In the circumstances, the Acting
President directs that the appeal in terms of
section 18
be referred
to the Gauteng Division to be dealt with by the Full Court.'
[8]
This court invited the parties to make submissions on the meaning of
the expression 'next highest court of appeal'. The parties
provided
written heads of argument for which we are grateful. Counsel for
first appellant and counsel for the second respondent
were both of
the view that the Full Court of a Division of the High Court was the
'next highest court' for the purpose of an appeal
in terms of
s18.
Counsel for the rest of the appellants, Mr Mokhari SC, argued in the
written heads that the next highest court would be the SCA
However,
during the hearing of the appeal he aligned himself with the view of
the other two counsel.
[9]
The starting point in construing any piece of legislation or a
section or phrase thereof is the text itself, read in the context
of
the statute and its subject. The so-called 'golden rule' of statutory
construction was stated in
Venter
v R
[4]
to be the ascertaining of the
intention of the legislature. This was to be done by taking-
‘
,...
the language of the instrument, or of the relevant portion of the
instrument, as a whole; and, when the words are clear and
unambiguous, to place upon them their grammatical construction and
give them their ordinary effect.'
[10]
Under certain circumstances it would, however be permissible to
depart from the ordinary meaning of the words:
[5]
'when
to give the plain words of the statute their ordinary meaning would
lead to absurdity so glaring that it could never have
been
contemplated by the legislature or where it would lead to a result
contrary to the intention of the legislature, as shown
by the context
or by such other considerations as the Court is justified in taking
into account. The Court may depart from the
ordinary effect of the
words to the extent necessary to remove the absurdity and to give
effect to the true intention of the legislature.'
[6]
[11]
The context of the phrase 'the next highest court" is to be
found in
sections 16(1)(a)
and (b) as well as
section 17(6)(a)
which
set out the relevant hierarchy of courts of appeal.
[12]
Section 16(1)(a) and (b) of the Act provide:
"Subject to section 15 (1)
[7]
,
the Constitution and any other law-
(a) an appeal against any decision of
a Division as a court of first instance lies, upon leave having been
granted-
i) if the court consisted of a
single
judge, either to the Supreme Court of Appeal or to a full court of
that Division, depending on the direction issued in terms
of section
17 (6);
or
ii) if the court consisted of more
than one judge, to the Supreme Court of Appeal;
b) an appeal against any decision of a
Division
on appeal to it, lies to the Supreme Court of Appeal upon
special leave
having been granted by the Supreme Court of
Appeal;" (My emphasis).
[13]
Section 17(6) (a) of the Act provides:
"If leave is granted under
subsection (2) (a) or (b) to appeal against a decision of a Division
as a court of first instance
consisting of a single judge, the judge
or judges granting leave
must direct that the appeal be heard by a
full court of that Division
, unless they consider-
(i) that the decision to be appealed
involves a question of law of importance, whether because of its
general application or otherwise,
or in respect of which a decision
of the Supreme Court of Appeal is required to resolve differences of
opinion; or
(ii) that the administration of
justice, either generally or in the particular case, requires
consideration by the Supreme Court
of Appeal of the decision, in
which case they must direct that the appeal be heard by the Supreme
Court of Appeal." (My emphasis).
[14]
The corresponding provisions of the Act's predecessor, the Supreme
Court Act 59 of 1959 (the previous Act), form part of the
circumstances attendant upon the coming into existence of the Act
[8]
and must also be taken into account.
In
MTN Service Provider
(Pty) Ltd v Afro Call (Pty) Ltd
[9]
it is stated that section 20(2) of the
previous Act
[10]
makes
it clear that the primary court of appeal from a single judge of the
High Court lies to the Full Court unless questions of
law or fact or
other considerations involved dictate that the matter should be
decided by the SCA, allowing for a deviation from
the norm. The
provisions regarding the court to which leave to appeal must be
granted from a single judge are effectively the same
in section 20(2)
of the previous Act and section 17(6)(a) of the Act and as a result
the principle stated
in MTN
Service Provider
is in my
view still applicable.
[15]
As was the case in
MTN
Service Provider
the
inappropriate granting of leave to appeal to the SCA was deprecated
in
Shoprite Checkers (Pty)
Ltd v Bumpers Schwarmas CC and
Others
[11]
as well as
Swart
v Heine
[12]
.
It can safely be assumed that when
formulating sections 17(6)(a) and 18(4)(ii) this approach formed part
of the material known to
the legislature as is clear from the use of
the words "must" and "unless" in the introductory
part of Section
17(6)(a). This is a further indication that the
intention of the legislature is that in the event of an appeal
against a decision
of a single judge "the next highest court"
is the Full Court regard being had to the default position which may
be changed
when the circumstances in sub-sections 17(6)(a)(i) and
(ii) prevail.
[16]
Both the Act and the previous Act are silent regarding instances
where a party has an automatic right of appeal except as provided
for
in section 18(4) (ii). It is apparent that in the case of an
automatic right of appeal, regard being had to the provisions,
there
is no mechanism to change the default position. There is therefore
logically no reason for differentiating between the position
regarding an automatic right to appeal and where leave to appeal is
required. The context of section 18(4) dictates that the appeal
must
follow the default route, i.e. from a single judge to a Full Court of
the same Division as required by section 17(6)(a), being
the next
highest court.
[17]
In both
Coetzer v Actom (Pty) Ltd
(Unreported judgment of this
Division, case no A269/2015) and
Liviero Wilge Joint Venture v
Eskom Holdings SoC Ltd
(Unreported judgment of the Gauteng Local
Division, case no 17321/2014) the question whether the Full Court of
the Division was
the correct court of appeal was not raised. In my
view in both cases it was correctly accepted that the Full Court was
the correct
forum.
[18]
It seems to me it would logically follow that in the event of an
order in terms of s18(1) to put into operation the decision
of a
court constituted of more than one Judge an automatic right to appeal
lies to the SCA - being the next highest court.
[19]
Finally on this issue, in terms of s18 (4), where a court has decided
in favour of interim enforcement pending an appeal, an
aggrieved
party has a further and final opportunity by way of appeal (as is the
case before us) to challenge interim enforcement
of the order and
retain the default position of suspension of the order pending an
appeal.
[20]
There is one aspect that deserves comment before I turn to the merits
of this appeal. The terms 'Full Bench' and 'Full Court'
are often
used by parties interchangeably. Section 1 of the Act provides-
"
'full court' in relation to any Division, means a Court consisting of
three judges;"
and
"
'Division' means any Division of the High Court".
[21]
It follows that a court of a Division consisting of two judges is a
'full bench' and a Court consisting of three judges is
a Full Court.
[22]
I turn then to the merits of the appeal before us.
[23]
The crisp issue to be determined is whether the court a quo was
correct in granting an order in terms of s18 (1) of the Act
which has
had the effect of re-instating the order it granted in the main
application after it was automatically suspended when
the appellants
applied for leave to appeal the order in terms of s18 (4) of the Act.
Now that the present appeal has been launched
against the order
granted in terms of s18 (1) of the Act the order in the main
application has once again become suspended.
[24]
Sub-sections 18(1) (footnote 1
supra
)
and (3)
[13]
13
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. Firstly, exceptional circumstances
must exist;
2. Secondly, proof, on a balance of
probabilities, by the applicant;
2.1 that the applicant will suffer
irreparable harm if the order is not put into operation; and
2.2 that the other party will not
suffer irreparable harm if the order is put into operation.
[25]
Mr Kekana contended that exceptional circumstances existed in that
his contract as municipal manager expires on 3 August, 2017
and it is
highly improbable that the appeal in the main application would be
finalised in the SCA before that date. The court
a quo
said:
'7. Whether the circumstances of the
foreseen duration of the appeal process constitutes an exceptional
circumstance, was answered
in lncubeta Holdings (Pty) Ltd v Ellis
[2014(3) SA 189 (GJ)] where Sutherland J said in paragraph 27:
'Do these circumstances give rise to
'exceptionality' as contemplated? In my view the predicament of being
left with no relief,
regardless of the outcome of an appeal,
constitutes exceptional circumstances which warrant a consideration
of putting the order
into operation. The forfeiture of substantive
relief because of procedural delays, even if not protracted in bad
faith by a litigant,
ought to be sufficient to cross the threshold of
'exceptional circumstances'.
8. I therefore find that exceptional
circumstances exist, which may justify the implementation of the
order.'
[26]
I respectfully agree with the court
a quo
's finding that
exceptional circumstances do exist. However, that is not the end of
the enquiry, which the court
a quo
also recognised. It dealt
firstly at some length with the issue of irreparable harm to the
Municipality. I do not think I need
concern myself with that aspect
as the issue whether Mr Kekana had the requisite authority to act on
behalf of the Municipality
is also an issue to be determined in the
appeal in the main application.
[27]
Insofar as irreparable harm to Mr Kekana is concerned, the court
a
quo
said it had 'dealt with the harm that Mr Kekana would suffer
if the orders are not put into operation under the heading
"Exceptional
Circumstances". He was victorious in the
application and should not be deprived of the benefits of the order
by the slow grinding
of the judicial mill.'
[28]
It seems that the court
a quo
conflated the requirements for
exceptional circumstances with that of irreparable harm to Mr Kekana.
It stated under 'exceptional
circumstances' what Mr Kekana averred
was the irreparable harm to him without expressly finding that his
averments were correct.
Insofar as it may be inferred that the court
a quo
impliedly made such a finding it seems to be based on Mr
Kekana's submission that should he succeed in defeating the appeal in
the main application an order for his re-instatement as municipal
manager will be academic as his contract would have expired by
then.
[29]
Mr Kekana submitted that he is suffering financial loss as a result
of the suspension of his re-instatement as municipal manager.
He is
unable to service the mortgage bond on his residential property as a
result of which he risks losing it; he is unable to
continue paying
for his child or children's education fees, etc. While one has
empathy for his predicament, that is an almost inevitable
consequence
of instances of alleged unlawful termination of employment until the
dispute is resolved.
[30]
The appellants contend that Mr Kekana will not suffer irreparable
harm as he has a claim for damages against the Municipality
for any
loss he may suffer, if he defeats the appeal in the main application.
There is merit in this submission.
[31]
It appears that the court
a quo
did not pertinently deal with
the issue of irreparable harm to the appellants. The wording of
sub-section (3) stipulates that not
only must the court find
exceptional circumstances but '
in addition
' make a finding (on
a balance of probabilities) whether the party who applied for the
enforcement of the order pending the appeal
will suffer irreparable
harm '
and
' whether the other party will not suffer irreparable
harm.
[32]
Mr Kekana has not demonstrated that the appellants will not suffer
irreparable harm. If the appellants were to ultimately succeed
in the
appeal in the main application the probabilities are that his
employer will not be able to recover any monies paid to him
from the
time of his re-instatement as Municipal Manager.
[33]
In the result I propose the following order:
1. The appeal succeeds with costs.
2. The order of the court
a quo
is set aside and replaced with the following order:
'The application is dismissed with
costs.'
_________________________
RANCHOD
J
JUDGE
OF THE HIGH COURT
I
AGREE
________________________
FABRICUS
J
JUDGE
OF THE HIGH COURT
I AGREE
________________________
J.W
LOUW
JUDGE
OF THE HIGH COURT
Appearances:
Counsel
on behalf of First Appellant :Adv
T. Ngcukaitobi
Instructed
by :State
Attorney
Counsel
on behalf of 2nd - 37th Appellant :
Adv W.R. Mokhari (SC)
:Adv
K.T. Mokhatla
Instructed
by :Hogan
Lovells (SA) Inc
Counsel
on behalf of 2nd Respondent :Adv
J.H
Dreyer (SC)
:
Adv J.A.L. Pretorius
Instructed
by :Mohale
Inc
Date
heard :23
September 2016
Date
delivered
:1
0
November 2016
[1]
Subject 18(1) provides ‘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]
Section 18(4)(iv) provides
“
such
order will be automatically suspended pending the outcome of such
appeal”.
[3]
Section 18(4)(ii) provides-
“
the
aggrieved party has an automatic right of appeal to the next highest
court.”
[4]
1907 TS 910
at 913.
[5]
Venter v R
at
914-915
[6]
See also
Natal
Joint Municipal Pension Fund v Endumeni Municipality
2012(4) SA 593 (SCA) at para [18] and
[19] for a more recent exposition on the rules of interpretation.
[7]
The provisions of section 15(1) are
no applicable
in casu
as
they refer to referral of an order of constitutional invalidity to
the Constitutional Court.
[8]
Natal Joint Municipal Pension Fund
v Endameni Municipality supra
para
[18].
[9]
2007 (6) SA 620
(SCA) at para [24].
[10]
"(2) (a) If leave is granted
under subsection (4) (h) to appeal against a judgment or order, in
any civil proceedings of
a court constituted before a single judge
the court against whose judgment or order the appeal is to he made
or the appellate
division according to whether leave is granted by
that court or the appellate division shall direct that the appeal he
heard
by a full court. unless it is satisfied that the questions of
law, and of fact and the other considerations involved in the appeal
are of such a nature that the appeal requires the attention of the
appellate division in which case it shall he directed that
the
appeal he heard h:, the appeal late division."
[11]
2003 5) SA 354
(SCA) at para [23].
“
The
inappropriate granting of leave to appeal to this court increases
the litigants' costs and results in cases involving greater
difficulty and which are truly deserving of the attention of this
Court having to compete for a place on the Court's roll with
a case
which is not.·
[12]
Unreported. SCA case no 192/15 dated
14 March 2016 at para [13].
‘
[13]
There is a further Disconcerting aspect to this appeal. The issues
in this appeal arc simple and straightforward and do not
involve
complicated or complex issues of law. This is a case where leave to
appeal should not have been granted at all. Why the
court a quo
thought this appeal deserves the attention of this court is not
explained. This court has repeatedly bemoaned the
fact that unworthy
appeals are referred to it, with the result that more deserving and
meritorious appeals are either delayed
or lose their places in the
roll. (See
Shoprite
Checkers Pty Ltd v Bumper
2003 (5) SA 534
(SCA):
S, v
Monyane
& others
2008 (1) SACR 543
(SCA).) Leave to appeal should
not be granted where there is no reasonable prospect of success on
appeal or no compelling reason
why an appeal should be heard - s
17(1)(a) of the.
Superior Courts Act 10 of 2013
."
[13]
Sub-section 18( 3) provides:
‘
(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.’