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[2008] ZANCHC 56
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Ditshetelo v Moshaweng Local Municipality and Others (1001/2008) [2008] ZANCHC 56 (15 August 2008)
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IN THE HIGH COURT OF
SOUTH AFRICA
(Northern Cape
Division)
Case
Nr:
1001/2008
Case
Heard:
01/08/2008
Date
:
15/08/2008
In
the matter between:
N
P Ditshetelo APPLICANT
and
Moshaweng
Local Municipality
1
st
RESPONDENT
Pabalelo
Jacqueline Simpson 2
nd
RESPONDENT
Member
of the Executive Council:
Local
Government & Housing: NC 3
rd
RESPONDENT
Speaker
of Moshaweng Local Municipality 4
th
RESPONDENT
JUDGMENT
Olivier J:
The
applicant, Mrs Nomonde Patience Ditshetelo, lodged an application in
which she cited the Moshaweng Local Municipality as the
first
respondent, M
rs
Pabalelo Jacqueline Simpson as the second respondent, the Member of
the Executive Council: Local Government & Housing:
Northern
Cape Province as the third respondent and the Speaker of the
Moshaweng Local Municipality as the fourth respondent.
The
application is in essence aimed at the review and setting aside of
resolutions adopted at a meeting of the council of the
first
respondent on 30 June 2008 (part B of the notice of motion). The
applicant has, however, also applied for interim relief
to the
effect that the operation of the particular resolutions be suspended
pending finalisation of the review (part A of the
notice of motion).
The application for
the interim relief was heard on 1 August 2008. Mr Danzfuss SC
appeared on behalf of the applicant and mr
Daffue on behalf of the
first respondent, being the only respondent that actually opposed
the application.
Mr Daffue at that
stage applied for leave to file a rejoining affidavit, which
application I dismissed with costs. At the conclusion
of the
hearing I granted an order
“
2.1 T
hat
pending the finalisation of the application for review by the
applicant in Part B hereof, the resolutions passed by the Council
of
the first respondent on
30
June 2008
referred to in items
5.1.3
,
5.1.4
and
5.1.5
of the Minutes of the said meeting appended to the founding affidavit
as annexure ‘
X
’
with the following effect:
that the
applicant’s employment agreement be terminated;
that the second
respondent be appointed as Acting Municipal Manager of first
respondent;
that the process
of advertising the post of Municipal Manager be proceeded with;
be suspended”
a
nd
ordered the first respondent to pay the costs of the application.
Although provision was
originally made in the notice of motion for the issue of a rule
nisi, both mr Danzfuss and mr Daffue were
agreed that, in view of
the fact that the application had been fully argued on 1 August
2008, a rule nisi would serve no purpose.
BACKGROUND
The applicant and the
first respondent had concluded a contract in terms of which the
applicant would be the first respondent’s
municipal manager
for a fixed period ending on 30 October 2007.
On
15 September 2007 the council of the first respondent resolved to
extend the applicant’s appointment from 31 October
2007 “
on
month to month contract
”
and to advertise the post of municipal manager. The applicant was
informed that the month to month contract would continue
“
until
Council decides otherwise
”.
When the post was
advertised the applicant also applied for the position. She, the
second respondent and a third candidate were
shortlisted and invited
to interviews. The third candidate withdrew and the second
respondent was apparently after the interviews
found to be the
strongest candidate.
At
a meeting on 6 June 2008 the council of the first respondent
resolved to appoint the second respondent as the new municipal
manager and to terminate the applicant’s month to month
contract with immediate effect.
The
applicant then applied for the review and setting aside of the
decisions taken on 6 June 2008,
inter
alia
on the ground that members of the council had been influenced and
even threatened to vote in favour of the termination of her
contract
and the appointment of the second respondent as municipal manager.
That
application was settled on 24 June 2008
,
when it was by agreement ordered that those resolutions be set
aside. On the very same day the applicant was, however, informed
(by the first respondent’s attorneys, acting upon instructions
issued by the mayor of the first respondent) that council
would meet
on 27 June 2008 to discuss “
the
termination of …
(her)
…month to month employment agreement
”
and was invited to make written representations in this regard.
It
appears that the applicant then enquired about the reason/s why the
termination of her contract was going to be considered.
No reason
was given. At the hearing it was on this basis argued that she had
in fact been denied a fair hearing, as it was
only in the opposing
papers that the mayor alleged that the strained working relationship
between himself and the applicant had
necessitated considering the
termination of the applicant’s contract.
The applicant was then
informed by the mayor (on 27 June 2008) that the meeting would only
take place on 30 June 2008. According
to the applicant she was
present and available when the meeting took place on 30 June 2008,
but was not allowed to attend the
meeting.
It
is of interest to note that the speaker (fourth respondent) of the
first respondent’s council, mrs Matshidiso Irene
Mothibakeledi, would in any event not have attended any meeting on
27 June 2008. She had addressed a letter to the mayor on that
day,
informing him that she would not report for work “
due
to ill health
”
and stating that she “
assume
(d)
that
there will be no abnormal matters dealt with during my absence other
than day to day activities (i.e. routine)
”.
The
applicant’s case is that the fourth respondent deliberately
avoided having to convene or attend a meeting on 27 June
2008
concerning these matters, because she was not in favour of the
mayor’s initiative to have the applicant’s contract
terminated.
The minutes of the
meeting of 30 June 2008 reflect the following relevant resolutions:
“
That
Mrs. N.P. Ditshetelo
(
sic
)
month
to month contract be terminated with effect from 31 July 2008.
That
Mrs. N.P. Dit
shetelo
be given a month’s salary in lieu of notice and that she
vacates her place of employment forthwith.”
“
Council
resolved to appoint Mrs P.J. Sampson as Acting Municipal Manager when
Mrs. N.P. Ditshetelo vacates her office on the 31
st
July 2008.”
In a letter from the
office of the mayor (dated 3 July 2008) the applicant was informed
that her contract would expire on 31 July
2008.
The
application for interim relief was brought on an urgent basis on 23
July 2008. By agreement between the parties the matter
was then
postponed to 1 August 2008 on the basis that answering papers would
be filed by 24 July 2008 and replying papers by
29 July 2008.
LOCUS STANDI
In
a confirmatory affidavit dated 24 July 2008 (and attached to an
answering affidavit deposed to by the first respondent’s
mayor, mr T L Seikaneng, on the same date) the second respondent
stated that she, in her capacity as acting municipal manager
of the
first respondent, had the delegated power to authorise the
opposition of the application on behalf of the first respondent.
In
reply the applicant took the point that the second respondent could,
on the papers as at the stage when she deposed to that
affidavit,
not have been validly appointed as acting municipal manager and that
the opposition of the application by the first
respondent had
accordingly not been authorised.
Mr Daffue conceded
that the minutes of the meeting of 30 June 2008 reflect completely
contradictory decisions in this regard
On
the one hand the minutes reflect resolutions to the effect that the
applicant’s contract would be terminated “
with
effect from 31
st
July 2008
”
and that the second respondent’s appointment would only then
become effective. The subsequent letter (dated 3 July
2008) by the
first respondent’s mayor informed the applicant that it had
been resolved that her contract would “
expire
on the 31 July 2008
”.
In
the same letter the mayor excused the first applicant from work for
the month of July, which would not have been necessary if
the
intention had been to terminate her contract with immediate effect.
On
the other hand the minutes do reflect another resolution which would
suggest that this had indeed been the intention,
viz
“
That
Mrs N P Ditshetelo be given a month’s salary in lieu of notice
and that she vacates her place of employment forthwith
”
(and therefore not only on 31 July 2008, as implied in a further
resolution).
On
the papers as at 1 August 2008 the
second
respondent had therefore not made out a case that she was the
validly appointed acting municipal manager at the stage when
she
deposed to her answering affidavit and when she purported to
authorise the opposition of the application on behalf of the
first
respondent. There is no suggestion that the mayor would have been
competent on any basis to authorise the opposition of
the
application. Insofar as the first respondent had chosen to rely on
the second respondent’s affidavit as proof of authorisation,
it had therefore (on the papers as at 1 August 2008) failed to make
out a case that it had the required
locus
standi
.
APPLICATION FOR
LEAVE TO FILE REJOINING AFFIDAVIT
It
is against this background that leave was sought, on the day of the
hearing, to introduce a further affidavit by the second
respondent.
The affidavit was deposed to by the second respondent on the day of
the hearing. Appended thereto were minutes
of a further council
meeting (of 30 July 2008), reflecting a resolution:
“
That
the decision of special council meeting of 30
th
June 2008 herewith be varied to read that:
That
Mrs Ditshetelo’s appointment as municipal manager be
terminated with effect 30
th
June 2008.
That
Mrs Ditshetelo be given one month’s salary for july (
sic
)
2008 in lieu of notice.
That
Mrs Sampson be appointed as acting municipal manager immediately
after Mrs Dit
shetelo
vacates her office, the effective date of her appointment being 01
st
July 2008.
That
all the actions of the mayor and/or acting municipal manager in
opposing applications under high
(
sic
)
court
case no’s 861/2008 and 1001/2008 be ratified.”
The
“
variations
”
pertaining to the termination of the applicant’s contract and
the appointment of the second respondent would amount
to a decision
completely different from that reflected in the minutes of 30 June
2008 and on the basis on which the applicant
had lodged her
application. Mr Danzfuss pointed out that the introduction of such
new and completely different facts on the
day of the hearing would
in all probability have necessitated a postponement to enable the
applicant to deal with the new allegations.
This would have
frustrated the whole purpose of the interim relieve she seeks.
It
is noteworthy that the resolution taken on 30 July 2008 was not
aimed at the variation of the
minutes
of 30 June 2008. The resolution was quite clearly to vary the
“
decision
”
of 30 June 2008. This would amount to a resolution, taken on 30
July 2008, to terminate the applicant’s contract
with
retrospective effect from 30 June 2008 and to appoint the second
respondent retrospectively from 1 July 2008. Needless
to say the
applicant would have been entitled to an opportunity to address
this.
Mr
Daffue argued that the second respondent had not been in the
position to depose to the further affidavit at an earlier stage,
because in terms of the resolutions adopted on 30 June 2008 her
appointment only became effective on 1 August 2008. In her
affidavit of 1 August 2008 the second respondent indeed also stated
that she “
could
not depose to this affidavit at an earlier stage
”.
Apart
from the fact that this argument was obviously based on only certain
of the resolutions adopted at the meeting of 30 June
2008, this
statement would have been irreconcilable with the minutes of the
meeting which was held from 14:00 to 15:00 on 30
July 2008,
according to which the second respondent would in any event have
been entitled to depose to an affidavit in her capacity
as acting
municipal manager from 1 July 2008. On her own version nothing
would therefore have prevented the second respondent
from deposing
to the further affidavit immediately after the meeting of 30 July
2008.
It
cannot be argued on behalf of the first respondent that it was only
when the replying papers were filed that it became aware
of the fact
that the second respondent had possibly not been properly appointed
as acting municipal manager when she deposed
to her initial
affidavit. In his
answering
affidavit of 24 July 2008 the mayor already made the allegation
that the minutes of 30 June 2008 were “
not
correct in so far as second respondent has been appointed as acting
Municipal Manager with immediate effect
”.
No reason was advanced for the fact that the next meeting only took
place on 30 July 2008.
As
far as the council’s own ratifying resolution is concerned,
and
even if it is for the moment to be assumed that the council could
not have convened earlier than 30 July 2008, nothing prevented
the
first respondent from bringing it to the applicant’s attention
at an earlier stage.
In
my view the introduction of the further affidavit by the second
respondent at that stage would therefore have unjustifiably
prejudiced the applicant. It went much further than merely an
attempt to rectify a procedural defect. It sought to introduce
a
completely different case as regards when the applicant’s
contract was terminated.
This would not, of
course, affect any rights that the first respondent may have to
apply for leave to file a further affidavit
for the purposes of the
review application.
Although
I therefore concluded that the first respondent lacked the
locus
standi
to oppose the application, I will nevertheless, and insofar as this
conclusion might not have been correct, deal with the contents
of
the opposing affidavits.
URGENCY
It is quite clear that
the applicant had been fully entitled to approach the Court on an
urgent basis for the interim relief.
The applicant had been
informed (on 3 July 2008) that her appointment would terminate on 31
July 2008 and that she would only
receive her salary until then.
Although
the issue of urgency was attacked in the opposing papers, mr Daffue
wisely decided not to take this any further in argument.
It in any event for all purposes became a moot point when the
parties on 23 July 2008 agreed on the postponement and on dates
for
the filing of papers.
JURISDICTION
Mr Daffue argued that
the issues essentially emanated from a relationship between employer
and employee and that the Labour Court
therefore had exclusive
jurisdiction in terms of
section 157(1)
of the
Labour Relations Act,
66 of 1995
.
The
mere fact of such a relationship would not result in any imaginable
dispute between the parties being reserved for the exclusive
jurisdiction of the Labour Court. What had to be decided was
whether the nature of the disputes was such that they all fell
“
to
be determined by the Labour Court
”
(see
Chirwa
v Transnet Limited and Others
[2007] ZACC 23
;
2008 (3) BCLR 251
(CC) para [60]).
The grounds relied
upon by the applicant for the purposes of the review of the
decisions taken at the meeting of the first respondent’s
council on 30 June 2008 can be roughly divided into two categories:
The
applicant’s case is that the meeting was irregularly convened
and held and that accordingly the resolutions adopted
at the
meeting are of no force or effect.
The
applicant furthermore contends that events before the meeting and
the procedure followed at that meeting infringed upon
her right to
just administrative action and fall to be reviewed in terms of the
Promotion of Administrative Justice Act, 3 of 2000
. More
specifically the applicant’s case is that she was effectively
denied the right to be heard and that the members
of the council
had failed to properly exercise and apply their minds in taking the
decisions.
In
my view
the question whether a meeting of the council of a municipality has
been irregularly convened or conducted is not one intended
by the
legislature to “
be
determined by the Labour Court
”
and therefore reserved for the exclusive jurisdiction of the Labour
Court.
In
view of the conclusion to which I had come as regards the validity
or regularity of the meeting, I deem it unnecessary at this
stage to
deal with the question whether the taking of the decisions at the
meeting and the termination of the contract and the
appointment of
the second respondent amounted to administrative action and to the
exercise of a public power and, if so, whether
the applicant should
have approached the Labour Court insofar as she wished to rely on
those grounds.
Suffice
it to remark that there can apparently be an overlapping of
jurisdiction in respect of administrative issues and that,
although
it has been found that this can lead to “
forum
shopping
”,
there is apparently at this stage nothing that prevents an employee
from approaching a High Court on this basis (see
Chirwa
v Transnet Limited and Others, supra
,
para [71] and compare
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
2008 m(2) SA 24 (CC) para [97]).
THE MEETING OF 30
JUNE 2008
In
terms of
section 29(1)
of the
Local Government: Municipal Structures
Act, 117 of
1998
, meetings of a municipal council can only be called by the
speaker.
The
applicant’s case is that the meeting of 30 June 2008 was
called and conducted irregularly. In this regard she appended
(as
annexure ‘U’) a “
NOTICE
OF SPECIAL COUNCIL MEETING
”
to her founding affidavit, which purports to be signed by the fourth
respondent and to be a notice of a meeting on 27
June 2008. The
applicant stated as a fact that this notice could not have been
signed by the fourth respondent before 30 June
2008, because the
fourth respondent had been absent from work on Friday 27 June 2008.
The mayor has in fact admitted that this
notice was not signed by
the fourth respondent on or before 27 June 2008. According to him
the fourth respondent did however
sign it on 30 June 2008. I will
revert to this aspect in due course.
According
to a letter addressed by the fourth respondent to the mayor, and
which is dated 28 June 2008, the fourth respondent
did call a
meeting for 30 June 2008, but specifically stated that matters
concerning the applicant’s contract and the appointment
of the
second respondent could not be deliberated, due to the
unavailability of a “
judgment
document
”
(in the previous case between the applicant and the first
respondent) and correspondence subsequent to that judgment.
This
letter was copied to members of the executive committee of the first
respondent, the chief whip and to the municipal manager.
On
the assumption that the fourth respondent did indeed sign the letter
dated 28 June 2008, t
he
question may be raised whether the fourth respondent had been
entitled to prescribe or limit the issues to be deliberated at
a
meeting of the council. Furthermore no “
judgment
document
”
would in any event have become available, because that matter had
been settled.
The
fact would remain, however, that a number of the members of the
council had been informed that these issues would not be discussed.
According to the minutes the meeting of 30 June 2008 was attended by
only twelve of the twenty members of the council, which
raises the
question whether one or more of those absent had possibly decided
not to attend because of the fact that the fourth
respondent had
indicated that these issues would not be discussed.
In
his affidavit the mayor stated that the applicant’s contract
and the second respondent’s appointment were eventually
indeed
deliberated after it had at that meeting been “
agreed
between myself and the fourth respondent that all items referred to
in the agenda may form part of the discussions and
may be resolved
upon”
.
This
wa
s
clearly not true, because the fourth respondent had not attended the
meeting of 30 June 2008. This appears clearly from the
minutes of
the meeting. Not only is her name not included among the names of
those who attended the meeting, but the minutes
reflect that the
meeting was in fact chaired by an acting speaker in her stead.
The
applicant interpreted the fact that the fourth respondent did not
attend the meetings of 27 and 30 June 2008 as an indication
that the
fourth respondent thereby disassociated herself from the mayor’s
drive to get rid of the applicant. In answer
to this the mayor
stated (in his affidavit) that “
Applicant
tries to create the impression that fourth respondent did not want
to become a party to irregularities
”.
The mayor then strangely went on to deny this (which would mean
that according to him the fourth respondent did indeed
want to
become a party to irregularities).
The
mayor appended to his affidavit what purports to be a confirmatory
affidavit by the fourth respondent and he specifically
referred to
the confirmatory affidavit in support of his contention that the
fourth respondent had at the meeting of 30 June
2008 agreed upon the
deliberation of all issues on the agenda. As already pointed out
this cannot be true.
This
places a huge question mark over the confirmatory affidavit. Why
would the fourth respondent have confirmed this allegation
if she
had indeed not even attended the meeting and why is there no
explanation at all for her sudden change of heart?
In
this regard it is of interest to note that two members of the
council have deposed to affidavits in which they state,
inter
alia
,
that the fourth respondent walked out of an earlier caucus meeting
in protest against the mayor’s attitude regarding the
applicant’s contract.
It
was not disputed that the person who chaired the meeting of 30 June
2008 as acting speaker had not been validly appointed.
It
was also not disputed that at least one of the members who had not
attended the meeting of 30 June 2008, mr E O Leshope, had
been
instructed at an earlier ANC caucus meeting not to attend, and that
he was so instructed because of the fact that he had
previously
deposed to an affidavit to the effect that members had been
influenced and threatened prior to the meeting of 6 June
2008 to
vote against the applicant.
There
was also a question mark over whether all
councillors
had received notice of the meeting of 30 June 2008. According to
the mayor they had all been given notice telephonically
by the
administrator in the office of the fourth respondent, mr M A Segame,
and a confirming affidavit was annexed. In reply
the applicant
however appended the affidavits of two councillors, mr O Leshope and
mr M G Choche, who denied having received
any notice of the meeting.
The
same two gentlemen also emphatically denied having signed the
document (annexure
‘TLS
7’ to the answering affidavit of the mayor) which purports to
be a list of the names of councillors who had in
writing requested
the fourth respondent to convene a meeting on 30 June 2008 and who,
according to the mayor, had “
felt
very strongly that the issues to be discussed at that meeting
(the meeting that had been planned for 27 June 2008 and at which the
mayor had intended the termination of the applicant’s
contract
to be deliberated upon)
should
proceed
”.
Messrs Leshope and Chocke stated that their signatures had been
forged on annexure ‘TLS 7’.
There
is absolutely no merit in mr Daffue’s argument that, even if
two of the fifteen signatures on annexure ‘
TLS
7’ had been forged, the applicant still did not prove that a
majority of members (
ie
more than ten members) did not sign the document. The fact that two
of the signature had been forged would cast more than sufficient
suspicion on annexure ‘TLS 7’ to justify its subjection
to intense scrutiny on review.
As
regards the letter (annexure ‘TLS 6’) under cover of
which the list had allegedly been forwarded to the fourth
respondent, it is a mystery how the mayor could, when allegedly
signing it on 27 June 2008, have mistakenly dated it the 30
th
of June 2008. In this regard it is also of interest to note that
in this letter, which purports to be a notification by the
fourth
respondent of a meeting on 30 June 2008, reference was made to the
mayor’s letter of 27 June 2008 (and not 30 June
2008).
The
question is also why it would have been deemed necessary to have the
fourth respondent sign a notice (of a meeting –
annexure ‘U’)
on Monday 30 June 2008, if all the members had in any event already
been notified telephonically.
As
far as the appointment of the second respondent is concerned, it is
clear that insofar as it was on 30 June 2008 resolved to
“
appoint
mrs RS Sampson as Municipal Manager
”
with immediate effect, this would have been clearly irreconcilable
with a resolution that the applicant’s contract
would only
terminate on 31 July 2008. On this basis alone the resolutions of
30 June 2008 would fall to be reviewed.
The
mayor’s somewhat incoherent explanation for this was that “
the
minutes are not correct in so far as second respondent has been
appointed as acting Municipal Manager with immediate effect
”.
He failed to explain what had in fact been resolved in this regard.
That
the intention had in fact been to re-appoint the second respondent
with immediate effect on 30 June 2008 is borne out by
the fact that
she had continued to work as the acting municipal manager as if the
resolution of 6 June 2008 had not been set
aside.
When
this fact was noted in a letter dated 25 June 2008 by the
applicant’s attorneys, the first respondent’s attorneys
replied (on 26 June 2008) that “
Mrs
Sampson is currently … not in the employ of our client
”.
In his answering affidavit the mayor conceded that this was not
correct and stated that he had “
reason
to believe that Mr Anderson
(first
respondent’s attorney)
and
I misunderstood each other
”.
INTERIM RELIEF
The
requirements for the granting of interim relief are (i) a clear or
prima
facie
right; (ii) a well-grounded apprehension of irreparable harm if the
relief is not granted; (iii) a balance of convenience in
favour of
granting the relief; and (iv) the absence of any other satisfactory
remedy (see
Aranda
Textile Mills (Pty) Ltd v Hurn and another
[2000] 2 All SA 530
(E)).
In
view of what has already been referred to above I cam
e
to the conclusion that the applicant had, at the very least, made
out a case that she had a
prima
facie
right. In fact, the immediate appointment of the second respondent
would clearly have been irregular. Insofar as contradictory
decisions had been taken at the meeting of 30 June 2008 they would
also on this ground fall to be set aside.
There is no doubt that
the implementation of the resolutions of 30 June 2008 would have
caused the applicant irreparable harm
had the interim relief not
been granted. The consequences of the termination of her contract
would not have been confined to
financial losses.
“
The
implications of being barred from going to work and pursuing one’s
chosen calling, and of being seen by the community
round one to be so
barred, are not so immediately realised by the outside observer
and appear, with respect, perhaps to have been underestimated in the
Swart
and
Jacobs
cases. There are indeed substantial social and personal implications
inherent in that aspect of suspension. These considerations
weigh as
heavily in South Africa as they do in other countries.”
See:
Muller
v Chairman, Ministers’ Council, House of Representatives, and
Others
1992 (2) SA 508
(C) at 523C-B.
Mr
Daffue argued that
section 64(4)
of the
Labour Relations Act
provided
a satisfactory alternative remedy. Apart from the fact
that the termination of a month to month contract could hardly be
viewed
as “
a
unilateral change to terms and conditions of employment
”,
a dispute concerning the legality of a meeting of a party to such a
contract and the validity of resolutions adopted
at such meeting
cannot by any stretch of the imagination be seen as a “
labour
dispute
”
(see
section
28(c)
of the
Labour
Relations Act
).
I
am in any event of the view that, even if the applicant would
technically speaking have been entitled to approach a body like
the
bargaining council, it would have made much more sense from a
practical point of view to approach the
Court
which had already made an order in respect of a large part of the
evidence that could once again be relevant.
There
can be no question that the balance of convenience favoured the
applicant. She stood to lose her income and other benefits
with
effect from the end of July 2008 and was effectively barred from
attending her office and doing the work she had been doing
for more
than two years.
There
was no suggestion that the applicant was not competent or able to do
the work.
They
mayor made the rather vague allegation that the return of the
applicant would “
lead
to severe friction between her and other employees and in particular
with reference to the strained relationship between
her and
councillors, including me
”.
There is no evidence of a strained relationship between the
applicant and any of the other employees and councillors
(apart from
the mayor of course).
Mr
Daffue argued, with reference to the case of
Metlika
Trading Ltd and Other v Commissioner, South African Revenue
Service
2005 (3) SA 1 (SCA), that the relief sought in part A of the notice
of motion would in fact be final in effect and that the application
for that relief should therefore be dealt with in accordance with
the principles and requirements applicable to applications
for final
relief.
I
disagree. The facts of the present matter, and the effect of the
relief sought in part A of the notice of motion, are entirely
distinguishable from those in the
Metlika
case. An order suspending the execution of a resolution temporarily
cannot be said to be similar in effect to an order compelling
the
return of an aircraft to South Africa.
The
grounds of review raised in this part of the application, and the
issues pertaining thereto, will clearly again have to be
raised and
considered in the review proceedings and will only then be finally
disposed of. The grounds upon which the return
of the aircraft had
been ordered in the
Metlika
case were completely different from those in the pending action.
COSTS
I
could see no reason why costs should not follow the result and none
was suggested to me. This applies to both the application
for leave
to file a rejoining affidavit and the application for interim
relief.
These
are the reasons for the orders made on 1 August 2008.
________________________
C J OLIVIER
JUDGE
NORTHERN CAPE
DIVISION
For the
Plaintiff:
Adv
F W A Danzfuss, SC
Instructed
by:
Job
Attorneys, KIMBERLEY
For the
Respondent: Adv J Daffue
Instructed
by: Mjila & Partners, KIMBERLEY