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2024
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[2024] ZAECMHC 43
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Zikhundla v Malala and Another (2082/2024) [2024] ZAECMHC 43 (31 May 2024)
IN THE HIGH COURT OF
SOUTH AFRICA
[EASTERN CAPE
DIVISION, MTHATHA]
Case No: 2082/2024
Date heard: 17/5/2024
Date delivered:31 /5/2024
In the matter of:
ZAMILE HERBERT
ZIKHUNDLA
APPLICANT
And
LINDELANI
MALALA
1
ST
RESPONDENT
ALFRED NZO DISTRICT
MUNICIPALITY
2
ND
RESPONDENT
This
judgment was handed down electronically by circulation to the
parties’ legal representatives via e-mail and publication
to
SAFLII. The date and time for hand-down is deemed to be
09
H
30
on
31
May
2024.
JUDGMENT
MJALI J:
[1]
The applicant is employed by the second respondent
as a Municipal Manager and Accounting Officer. Following certain
allegations,
the applicant is on suspension pending the finalisation
of the disciplinary hearing instituted by the second respondent. The
disciplinary
proceedings commenced and have not been finalised. The
first respondent is an attorney hired by the second respondent as the
chairperson
of that disciplinary process. The applicant is
represented in the hearing by advocate A M Bodlani SC on the
instruction of
Messers AW Chopha Attorneys.
[2]
On 13 May 2024 the first respondent gave a ruling
that the disciplinary hearing was to proceed again on 20 to 22 May
2024 and on
27 to 31 May 2024 excluding 29 May 2024. The ruling was
according to the applicant given without consultation with its legal
representatives
and as such the dates were not suitable for them as
they would both be engaged in a medical negligence trial that was set
down
for those dates. When their request to have the dates changed
did not yield the desired results, the applicant approached this
court on an urgent basis seeking an order couched in the following
terms.
2.1 Granting the
applicant leave to bring this application by way of urgency in
accordance with the provisions of the Uniform Rule
6(12) and that the
usual forms of service have been dispensed with.
2.2
That pending the launch within a period of 30 (thirty) days from the
date of this order, and finalisation of an application
for the review
and setting aside of the first respondent’s ruling of 13 May
2024 postponing the internal disciplinary hearing
of the second
respondent, instituted against the applicant (the disciplinary
hearing), for hearing from 20 to 22 May and 27 to
31 May 2024
excluding 29 May 2024:
2.2.1
The second respondent’s disciplinary hearing be and is hereby
stayed; and
2.2.2
the first respondent and /or any official, employee and/or agent of
the second respondent and /or anyone acting at the instance
of the
first and second respondents in connection with the disciplinary
hearing or otherwise, be and is hereby interdicted and
restrained
from continuing with the second respondent’s disciplinary
hearing.
2.3
Directing the first respondent to pay the costs of this application,
provided that should the applicant not launch the review
application
otherwise than because the dispute has become settled, the applicant
shall pay the costs of this application.
[3]
Consequent upon the certificate of urgency
that was filed with the registrar on Tuesday,14 May 2024, I issued an
order on the same
day that papers be served on the respondents and
that the matter will be heard on Friday, 17 May 2024 at 10h00. The
setting down
of the hearing on Friday, 17 May 2024 was to afford
sufficient time to the parties to file their answering and replying
papers
if they so wished before the day of the hearing. The first
respondent did not oppose the application but simply filed a notice
to abide the decision of this court. The application was only opposed
by the second respondent. The second respondent’s lengthy
answering affidavit coupled with the application for condonation for
its late filing was only filed with the registrar on the day
of the
hearing. The replying affidavit was also filed just before the
hearing of the matter, necessitating some time for the court
to read
the papers before the hearing. Apart from its opposition on the
grounds that the applicant has failed to meet the requirements
for
interdictory relief, the second respondent also raised points in
limine, namely, firstly, whether urgency has been made out,
secondly,
whether it is appropriate to have launched the present application in
medias res when such is clearly premature; and
thirdly, whether the
court’s jurisdiction has been properly engaged – the
applicant has not delineated whether the
pending review is being
brought in terms of PAJA or review in terms of the Labour Relations
Act.
[4]
That coupled with the unavailability of the court
room, resulted in the hearing commencing only after 12h00 and
continued until
after 16h00. The application papers excluding the
substantive heads of argument filed by both parties ran in excess of
two hundred
and twenty pages. During the much-contested hearing both
counsel referred to a number of authorities to bolster their
arguments
for and against the relief sought. When it became clear
that the decision on this application would not be taken on the day
of
the hearing bearing in mind the aforesaid as well as the fact that
the disciplinary hearing sought to be stayed was scheduled for
Monday
20 May, practically two days after the hearing of this matter,
counsel agreed to an order effectively staying the envisaged
disciplinary hearing scheduled to take place on the dates stipulated
in the notice of motion. Further to hold a pre-hearing on
31 May 2024
and reserved costs of this application.
[5]
The order agreed upon by the parties is
practically the very relief that the applicant sought in this urgent
application and as
such there is no longer a live issue between the
parties in so far as the resumption of the hearing on the stipulated
dates. In
addition to that, at the time of this judgment, the dates
stated in the order sought to be stayed have now come and gone. Apart
from staying the proceedings, the order effectively rendered all the
other issues raised in limine moot. What remained for determination
was the issue of costs.
Section
16(2)(a) of the Superior Courts Act provides that the question
whether the decision would have no practical effect or result
is to
be determined without reference to any consideration of costs.
Ordinarily, under the circumstances,
the application would be regarded as mute and thus there would be no
need for this court to
pronounce thereon.
[6]
It
is a well-established principle in our law that courts should refrain
from making rulings on such matters, as the courts’
decision
will merely amount to an advisory opinion on the identified legal
questions, which are abstract, academic, or hypothetical
and have no
direct effect.
The
reasoning behind this principle is that
courts’
scarce resources must be used to determine live legal disputes rather
than abstract propositions of law. Courts
should refrain from
giving advisory opinions on legal questions that are merely abstract,
academic or hypothetical and have no
immediate practical effect or
result.
[1]
In
President of the Republic of South Africa v Democratic Alliance, the
Constitutional Court cautioned that ‘courts should
be loath to
fulfil an advisory role, particularly for the benefit of those who
have dependable advice abundantly available to them
and in
circumstances where no actual purpose would be served by that
decision, now’
[2]
.
[7]
On the issue of costs. Properly construed, the
order obtained by consent was what the applicant sought. It was under
the circumstances
the successful party in this application. The
general rule is that costs must follow the event. There is no reason
to deviate therefrom.
In the result the following order shall issue.
The
second respondent shall pay costs of this application.
GNZ MJALI
JUDGE OF THE HIGH
COURT
On
behalf of the Applicant
Instructed
by
Adv.
Genukile
AW
Chopha Attorneys
reception@achophainc.co.za
On
behalf of the Respondent
Instructed
by
Adv.
R.A Solomon SC with Adv, L. Mnqandi
richardsol@maisels.co.za
rasolomon@maisels.co.za
loyisomnqandi@advocatesa.co.za
Madlanga
&Partners Inc. Attorneys
admin@mpiattorneys.co.za
[1]
National
Coalition for Gay and Lesbian Equality v Minister of Home
Affairs
2000
(2) SA 1
(CC);
2000
(1) BCLR 39
(CC)
para 21;
JT
Publishing (Pty) Ltd and Another v Minister of Safety and
Security
[1996] ZACC 23
;
1997
(3) SA 514
(
CC
);
1996
(12) BCLR 1599
(CC)
para 15.
[2]
President
of the Republic of South Africa v Democratic Alliance and Others
[2019] ZACC 35
;
2019 (11) BCLR 1403
(CC);
2020 (1) SA 428
(CC) para
35.