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2024
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[2024] ZALMPPHC 65
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Premier of the Limpopo Province and Others v Kobe and Others (10954/2023) [2024] ZALMPPHC 65 (10 July 2024)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
LIMPOPO
DIVISION, POLOKWANE
CASE
NO: 10954/2023
(1) REPORTABLE: YES/
NO
(2) OF INTEREST TO THE
JUDGES: YES/
NO
(3) REVISED
DATE: 10.07.2024
SIGNATURE:
In
the matter between:
PREMIER
OF THE LIMPOPO PROVINCE
FIRST
APPLICANT
THE
MEC OF COGHSTA, LIMPOPO PROVINCE
SECOND
APPLICANT
CHAIRPERSON
OF LIMPOPO HOUSE OF TRADITIONAL LEAADERS
THIRD
APPLICANT
-and-
HEADMAN
ENOS MATOME KOBE
FIRST
RESPONDENT
MAROKHU
MATOME ALFRED
SECOND
RESPONDENT
PHALA
NOTME SIMON
THIRD
RESPONDENT
KGATLA
MASHILO PHILIP
FOURTH
RESPONDENT
KUBU
NGOAKA ABRAM
FIFTH
RESPONDENT
LEBOGO
MOLOKO COURTLY
SIXTH
RESPONDENT
LEKWARA
MATLOU ALBERT
SEVENTH
RESPONDENT
MAILULA
KOLOBE PATRICK
EIGHTH
RESPONDENT
MANAKA
NHLODI SAMUEL
NINTH
RESPONDENT
MABOYA
MKGODI WILSON
TENTH
RESPONDENT
MALEKA
NTOME DALTON
11
TH
RESPONDENT
MONEYA
MADJADJI
12
TH
RESPONDENT
THELEDI
MANTASE JACOB
13
TH
RESPONDENT
KGOSHI
NGOAKO ISAAC LEBOGO
14
TH
RESPONDENT
BAHANANWA
TRADITIONAL COUNCIL
15
TH
RESPONDENT
SHERIFF
– POLOKWANE
16
TH
RESPONDENT
JUDGMENT
BRESLER
AJ:
Introduction:
[1]
The Applicants apply for the following relief:
1.1 That the execution of
the Full Court’s Order dated the 28
th
of June 2021
under case number: HCAA 14/2020, is stayed pending the finalisation
of the appeal in the Supreme Court of Appeal by
Kgoshi Isaac Lebogo
and Bahananwa Traditional Council.
1.2 That the 1
st
and 2
nd
Respondents be interdicted from removing the
Applicants’ attached property.
1.3 That the Applicants’
attached property is removed from attachment.
1.4 That the costs of the
Application be paid by any of the Respondents opposing the
application.
[2]
The application is opposed by the 1
st
to 13
th
Respondents (hereinafter referred to as the ‘Opposing
Respondents’).
[3]
The common cause facts relevant to these proceedings are the
following:
3.1 On the 11
th
of February 2019, the Opposing Respondents instituted a review
application in the above Honourable Court in terms whereof they
sought an order reviewing and setting aside the decision to remove
them as headman / headwomen and ancillary relief.
3.2 The review
application was dismissed with costs on the 6
th
of
February 2020.
3.3 Thereafter the
opposing respondents launched an appeal to the Full Court against the
whole judgment and order. The Full Court
upheld the appeal with costs
on the 28
th
of June 2021 (the ‘Full Court order’).
3.4 The 14
th
and 15
th
Respondent then obtained special leave to appeal
from the Supreme Court of Appeal.
3.5 The Applicants also
applied for special leave to appeal to the Supreme Court of Appeal
which application was dismissed on the
18
th
of September
2023.
[4]
The question which this court is called upon to answer is whether the
Appeal launched by the 14
th
and 15
th
Respondent
suspends the operation of the Full Court order granted under case
number HCAA 14/2020 having regard to the fact that
the leave to
appeal against the order was refused in respect of the Applicants.
[5]
The matter initially came before court as an urgent application on
the 7
th
of December 2023. On this day, this Court granted
a provisional order to the effect
inter alia
that the
execution of the order is suspended up to the 10
th
of
April 2024. The
crux
of the query at that stage was the status
of the 14
th
and 15
th
Respondents’ Appeal.
The parties were directed to deliver supplementary affidavits
addressing the validity of the alleged
pending appeal.
[6]
Both parties submitted Supplementary affidavits setting out their
respective communications with the attorneys for the 14
th
and 15
th
Respondent and the Registrar of the Supreme Court
of Appeal.
[7]
It must be noted that neither the orders granted by the Supreme Court
of Appeal, nor the correspondence received from the Registrar,
explicitly notes that the Appeal has either lapsed, was dismissed or
is deemed to have been dismissed because of the Applicants’
Application for leave to appeal being refused. Adv N Gaisa, who
represents the 14
th
and 15
th
Respondents in an
ancillary matter, was present in court during the hearing of the
matter. He confirmed that the 14
th
and 15
th
Respondents are in the process of applying for a hearing date for the
Appeal.
[8]
This court must therefore assume that, although the Appeal is
purportedly on the ‘inactive’ roll at the Supreme
Court
of Appeal, it is still pending for purposes of this application.
[9]
It stands to be noted that this matter was argued simultaneously with
case number: 11377/2023, being a related matter between
the same
parties raising similar issues to be determined. Judgment in matter
11377/2023 will be delivered separately but simultaneously
herewith.
Application
of law to the facts:
[10]
At
common law the general rule is that the execution of a judgment is
automatically suspended pending the noting of an appeal with
the
consequence that until the finalisation of the appeal, the judgment
cannot be carried into effect.
[1]
The reasoning behind this, is to prevent irreparable damage to a
losing party pending the outcome of the appeal if the judgment
is put
into motion under a warrant or by execution of the judgment.
[2]
[11]
During the course of argument, I invited both the Applicants as well
as the Respondents to present me with authority to the
effect that
the appeal has lapsed due to the fact that it was removed from the
roll and not re-enrolled again.
[12]
Van Loggerenberg
[3]
clearly states that a decision becomes the subject of an appeal as
contemplated in Section 18(1), as soon as an application for
leave to
appeal or a notice of appeal is lodge with the registrar in terms of
the applicable rules of court. It is furthermore
apposite to note
that Section 18(1) specifically suspends the operation and execution
of the decision ‘pending the decision
of the application or
appeal’.
[13]
In my view, the Appeal of the 14
th
and 15
th
Respondents is still pending as no decision has been made on the
appeal as of yet. Although the Applicants’ application for
leave to appeal was refused, a determination must still be made on
the 14
th
and 15
th
.Respondents’ Appeal. In
effect, the Applicants therefore has no pending appeal. But, having
regard to the nature and effect
of the 14
th
and 15
th
Respondents’ appeal, a successful prosecution thereof will
result in the setting aside of the Full Court order.
[14]
I am fortified in my view
in as far as the Full Court in the matter of
Turner
and Another v Ntintelo and Another
[4]
states
the following at [62]:
‘
Considerably,
the respondents’ application was instituted on February 2020
when the interim order was granted. The matter
was struck off the
roll on 08 April 2020 when the respondents were in default. The
submission that the respondents’ application
was concluded on
08 April 2020 when the matter was removed from the roll is not
correct. It must be stressed that the application
was not dismissed
but was removed from the roll. The difference between striking a
matter off the roll and dismissal is that in
the case of dismissal,
the matter is disposed of and can no longer be set down on the roll
again. If the applicant wishes to proceed
with the matter, he would
have to start the matter de novo. While on the other hand, striking
of a matter off the roll has nothing
to do with the merits of the
case. It is not aimed at terminating the proceedings but merely
suspends the hearing thereof pending
an application for
re-instatement. Skhosana and Others v Roos t/a Roos se Oord and
Others
2000 (4) SA 561
(LCC) at para 19.’
[15]
The striking, postponement or removal of a matter does not have a
decisive and final effect. The matter must be re-enrolled
for hearing
to bring about a final result.
[16]
Even if I am wrong in my contention that the Appeal is still alive, I
am guided by the principles pertaining to the suspension
of execution
in general. Rule 45A of the
Uniform Rules of Court
provides
that, the court may on application, suspend the operation and
execution of any order for such period as it may deem fit,
provided
that in the case of appeal, such suspension is in compliance with
section 18 of the Superior Court Act, Act 10 of 2013.
[17]
In the judgment of De
Villiers AJ in
BP
Southern Africa (Pty) Ltd v Mega Burst Oils and Fuels (Pty) Ltd and
Another; BP Southern Africa (Pty) Ltd v ZA Petroleum and
Another
[5]
at paragraph 25 it was held:
‘
A
litigant with an enforceable judgment is entitled to payment, and
only in rare cases would be delayed in that process. In my view
there
may be exceptional cases where a court would still exercise a
discretion to prevent an injustice in staying execution.’
[18]
Without
embarking on an extensive discourse of the law, the legal position
today is that a Court will grant a stay of execution
where real and
substantial justice is required, or an injustice will otherwise be
occasioned.
[6]
[19]
A court faced with an application for the suspension of execution,
must consider the factors that underlies the granting of
interim
interdicts, with due regard to the fact that an applicant is not
asserting a
prima facie
right but is seeking to avoid an
injustice. The Court must therefore be satisfied that:
19.1 The applicant has a
well-grounded apprehension that the execution is taking place at the
instance of the respondent; and
19.2 Irreparable harm
will result if execution is not stayed, and the applicant ultimately
succeeds in establishing a clear right.
[20]
It follows that irreparable harm will invariably result if there is a
possibility that the underlying
causa
may ultimately be
removed or where the underlying
causa
is the subject matter of
an ongoing dispute between the parties.
In casu,
the
underlying
causa
is the subject matter of an ongoing dispute
between the Opposing Respondents and the 14
th
and 15
th
Respondent. It however materially effects the position of the
Applicants although they were not successful in their appeal.
[21]
The Court is not
concerned with the merits of the underlying dispute. The Court’s
enquiry is limited to the existence of the
dispute in respect of the
causa.
[7]
The Court therefore
need not determine at this stage whether the 14
th
and 15
th
Respondents are going to
be successful with their Appeal. The Court must simply consider that
the underlying causa may be negated
if the 14
th
and 15
th
Respondents are
successful.
[22]
In my view, should a stay of execution not be granted at this stage,
it would lead to substantial prejudice for the Applicants
as they
could be without any satisfactory remedy. The execution of the Full
Court order also holds infinite consequences for the
community as a
whole and has severe financial consequences for the Applicants. A
suspension of the execution of the Full Court
order will therefore
serve the interest of justice.
[23]
Regarding the balance of convenience, it is indeed correct that the
Opposing Respondents have a right to finalisation of this
matter. It
is however my view that, the Applicants may be seriously prejudiced
should a stay of execution of the Full Court order
not be granted.
Thus, if the 14
th
and 15
th
Respondents succeed
in having the Full Court order expunged, the prejudice would be far
worse than the inconvenience the Opposing
Respondents are
experiencing pending the hearing of Appeal.
[24]
Nothing prohibits the Opposing Respondents from ensuring that the
Appeal is expedited and enrolled. It did not appear from
the records
before court that the Opposing Respondents took any steps in this
regard to date hereof.
[25]
In the result, I am of the view that, justice would be best served if
the operation and execution of the Full Court order,
inclusive of the
issue of costs, be stayed pending the outcome of the 14
th
of 15
th
Respondents’ Appeal.
[26]
There is no reason to consider the setting aside of the writ or the
consequential attachment at this stage. It follows that
the
suspension of the Full Court’s order will result in a
suspension of the writ as well. The writ was, after all, not
erroneously
issued as the underlying
causa
has not been
extinguished but is merely disputed.
Costs:
[27]
The Applicants are substantially successful in the relief prayed for.
The Opposing Respondents in this matter was entitled
to oppose the
application on the premise that the Applicants’ application for
leave to appeal was refused. The Opposing Respondents
was warranted
in their frustration as it is evident that the 14
th
and
15
th
Respondents did not proffer a reasonable explanation
for the delay in finalising their appeal.
[28]
The Court retains a discretion to award costs that is fair to all
parties concerned. Despite the fact, therefore, that the
Applicants
has succeeded in obtaining a stay in execution, I am of the view that
the normal rule that costs should follow the result,
will not bring
about a fair result. Under the circumstances, each party is ordered
to pay its own costs.
Order:
[29]
In the result the following order is made:
26.1 The execution of
the Full Court’s Order dated the 28
th
of June 2021
under Case number HCAA 14/2020, is stayed pending the finalisation of
the appeal in the Supreme Court of Appeal by
Kgoshi Isaac Lebogo and
Bahananwa Traditional Council.
26.2 The execution of
the Writ of Attachment issued under case number: 854/2019 (HCAA
14/2020) is suspended pending the finalisation
of the appeal in the
Supreme Court of Appeal by Kgoshi Isaac Lebogo and Bahananwa
Traditional Council.
56.5 Each party is
ordered to pay its own costs.
M
BRESLER
ACTING
JUDGE OF THE HIGH COURT,
LIMPOPO
DIVISION, POLOKWANE
APPEARANCES:
FOR
THE APPLICANTS:
:
Adv Tshikororo
INSTRUCTED
BY
:
The Office of the State Attorney
Polokwane
TMasete@justice.gov.za
FOR
THE 1
ST
– 13
TH
RESPONDENTS
:
Adv MB Monyemoratho
INSTRUCTED
BY
:
Mamphiwa Phihlela Attorneys
MPhilelaAttorneys@gmail.com
DATE
OF HEARING
:
10 April 2024
DATE
OF JUDGMENT
:
10 July 2024
[1]
Sabena
Belgian World Airlines v Ver Elst
1981
(1) SA 1235 (W)
at
1236H;
Rentecor
(Pty) Ltd v Rheeder and Berman NNO
1988
(4) SA 469
(T)
at
503E–504C;
Schoeman
v Nedbank Ltd
1989
(4) SA 812 (W)
at
815D-816C.
[2]
Reid
v Godart
1938
AD 511
at
513;
Kalahari
Salt Works (Pty) Ltd v Bonne Fortune Beleggings Bpk
1973
(4) SA 471 (NC)
at
477A.
[3]
Van Loggerenberg,
Erasmus:
Superior Court Practice
,
Volume 1 on page D - 133
[4]
(A248/22)
[2023] ZAWCHC 51
(8 March 2023)
[5]
2022 (1) SA 162
(GJ)
[6]
Gois
t/a Shakespeare’s Pub v Van Zyl and Others
2011
(1) SA 148
(LC)
at
para 37;
Road
Accident Fund v Legal Practice Council
2021
(6) SA 230
(GP) (a decision of the full court) at paragraphs 30 to
33.
[7]
Gois
t/a Shakespeare’s Pub v Van Zyl and Others
supra