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2024
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[2024] ZALMPPHC 157
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Thabazimbi Local Municipality and Others v ABSA Bank Limited Others (11869/2023) [2024] ZALMPPHC 157 (9 April 2024)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
LIMPOPO DIVISION,
POLOKWANE
CASE NO: 11869/2023
(1)
REPORTABLE:
YES/NO
(2)
OF INTEREST TO
THE JUDGES: YES/NO
(3)
REVISED.
In the matter between:
THABAZIMBI
LOCAL MUNICIPALITY
First
Applicant
LETSEKA
GLADWIN THOUBATLA
Second
Applicant
KEDISALETSE
JOHANNES MATLOU
Third
Applicant
And
ABSA
BANK LIMITED
First
Respondent
LINDIWE
PATRICIA MAKAYA
Second
Respondent
PAPULA
LUCKY MOGOROSI
Third
Respondent
BUTANA
BEN TLHABADIRA
SERVICES
Fou
rth
Respondent
Delivered: This judgment
is handed down electronically by circulation to the parties through
their legal representatives’
email addresses. The date for the
hand-down is deemed to be 09 April 2024.
JUDGMENT
Makoti AJ
Introduction
[1]
The applicants touted this as an extremely urgent application which,
but for logistical reasons, would have come before
court on Friday 22
March 2024. It ultimately came before me on Monday 25 March 2024,
still bypassing the procedures set out in
the practice directives of
this Division. In the end, against what the author of
Luna
Meubels
[1]
taught us over the many years since its delivery, one could hardly
see what made the matter extremely urgent if it was not for
the
applicants’ insatiable appetite for litigation. Perhaps the
reality of losing control of Thabazimbi Local Municipality’s
(the Municipality) purse proved too ghastly a proposition to accept.
The hallmarks of abuse of court processes are quite palpable.
All
said, and owing to the litigation history of this matter, it is apt
that I consider the merits with the hope that the end of
this
litigation battle is nigh.
Relief sought by
applicants
[2] I do not deal
with the intervention application which the parties have sensibly
resolved amongst themselves. The intervening
party, the Democratic
Alliance, makes common cause with the fourth respondent on the
substantive grounds for opposing the application.
[3] Apart from the
question of urgency the applicants asked for a declaration that the
judgment and orders that were granted
by Semenya DJP upon hearing the
review application involving most, if not all, of the parties are
suspended pending an application
to the President of the Supreme
Court of Appeal to have reconsidered the refusal by two judges of the
court to grant leave to appeal
the judgment. Whether an application
for reconsideration suspends the operation of the judgment and orders
is the only question
to grapple with - as I will explain below.
[4]
In what mimics an application within the contemplation of s 18(3) of
the Superior Courts Act
[2]
(the
Act), the applicants sought another declaratory order to the effect
that the orders granted by Phatudi JP on 21 December 2023
are
currently operational and ought to be given effect to pending the
final outcome of the appeal processes. Upfront I asked to
be
addressed on whether it was the intention of the applicants to invoke
the said legislative provisions and what I got was an
intangible
answer, taking into account that they would have had to satisfy the
requirements for interim interdictory relief if
they intended the
application to fall within the remit of s 18 of the Act.
[5]
No attempt was made to address the requirements in the founding
papers. As indicated, I invited the applicants through
their counsel
to address me on these, more specifically as to what irreparable
harm
[3]
the applicants would
suffer if employee salaries were paid by someone other than them.
That was not adequately answered. But there
is yet another problem
for the applicants, and that is that relief was previously sought
verbatim
before Muller J, which was favourably granted on 11 January 2024. To
my knowledge no appeal lies against that order and that should
be the
end of it. There is no reason why I should re-open that question,
also because I am legally disempowered to review an order
granted by
a judge. It is enough to say that court orders are not reviewable.
[6] Based on the
two reasons which I have expressed in the above stanza prayer 3 of
the applicant’s notice of motion
is dismissed. I suspend
dealing with the question of costs at this juncture to avoid piece
meal approach of the issue. This is
advised also taking into account
that the applicants are seeking a punitive cost order against ABSA
Bank Ltd, the first respondent.
Whether
reconsideration application suspends court orders
[7]
On 28 February 2024 two judges of the SCA dismissed an application by
the Municipality and a number of its councilors
for leave to appeal
the judgment of Semenya DJP. Upon acquiring knowledge of that outcome
they issued an application to the President
of that court to have
that decision reconsidered. By virtue of the provisions of the Act
the operation of the impugned orders was
suspended when leave to
appeal was applied for, first before Semenya DJP and later on at the
SCA.
[4]
Where exceptional
circumstances warrant it, an order that is subject to an application
for leave to appeal can be implemented if
the court orders so.
[5]
Both the applications failed.
[8] Section
17(2)(f) of the Act stipulates that a party that is aggrieved by a
refusal by judges of the SCA to grant an application
for leave to
appeal may approach the President of that court, through application,
to refer the decision dismissing leave to appeal
back to the court
for reconsideration. The Act puts it thus:
“
The
decision of the majority of the judges considering an application
referred to in paragraph (b), or the decision of the court,
as the
case may be, to grant or refuse the application shall be final:
Provided that the President of the Supreme Court of Appeal
may in
exceptional circumstances, whether of his or her own accord or on
application filed within one month of the decision, refer
the
decision to the court for reconsideration and, if necessary,
variation.”
[9] As at the
hearing of this case the decision of the President of the SCA was
still unknown. Because of that the applicants
hold the view that the
implementation of the orders contained in the judgment that they
impugn are suspended by operation of law
in the same manner as an
application for leave to appeal does. The respondents contend
differently.
[10]
This matter calls for an interpretation of s 17(2)(f) of the Act,
that is, to determine whether an application in terms
of that
provision suspends the operation of an order in relation to which a
reconsideration is sought. Wallis JA in
Bothma-Botha
Transport
(Edms) Bpk v S Bothma & Seun Transport (Edms) Bpk
[6]
eruditely gave us guidance on how legal instruments are to be
interpreted. He said:
“
T
hat
summary is no longer consistent with the approach to interpretation
now adopted by South African courts in relation to contracts
or other
documents, such as statutory instruments or patents. While the
starting point remains the words of the document, which
are the only
relevant medium through which the parties have expressed their
contractual intentions,
the
process of interpretation does not stop at a perceived literal
meaning of those words, but considers them in the light of all
relevant and admissible context, including the circumstances in which
the document came into being
.
The former distinction between permissible background and surrounding
circumstances, never very clear, has fallen away. Interpretation
is
no longer a process that occurs in stages but is “essentially
one unitary exercise” [a reference to a statement
of Lord
Clarke SCJ in Rainy Sky SA v Kookmin Bank
[2011]
UKSC 50
,
[2012] Lloyd’s Rep 34 (SC) para 21].” (Emphasis added)
[11]
I am deliberately making reference to the above authority to express
my rejection of the notion that the court need look
no further than
the wording of the legislative provisions of s 17(2)(f) of the Act, a
submission made by the intervening party
– the Democratic
Alliance. Context plays an important role whenever an interpretation
of a legal instrument, including legislation,
is called for.
[7]
[12]
There are only a handful of legal authorities which have dealt with
the implications of a procedure in terms of s 17(2)(f)
of the Act. In
S
v Liesching and Others
[8]
(Liesching I) the apex court in the land taught us to appreciate the
dichotomy between an application for leave to appeal and an
application for reconsideration in terms of s 17(2)(f) of the Act. It
has told us that an application to have a decision of the
SCA
reconsidered is not itself an application for leave to appeal.
[9]
These are its exact words:
“
[35]
… The latter is not an application for leave to appeal. It is
an application to the President for referral of a decision
of the
court, refusing leave to appeal, to the court for reconsideration. It
is another bite at the cherry for an unsuccessful
litigant to have
the refusal of its application for leave to appeal reconsidered by
the SCA on referral by the President
in
exceptional circumstances
.”
(Emphasis added)
[13]
If an application for reconsideration under section 17(2)(f) is not
an application for leave to appeal, can it be said
that it operates
in the same way as the latter to suspend the orders that are being
challenged? I shall answer the question upon
further considering of
additional authorities. In
Cloete
and Another v S; Sekgala v Nedbank
[10]
(Cloete) the court again posited that an application for
reconsideration espoused in s 17(2)(f) of the Act is not an
application
for leave to appeal. Cloete did not change what the court
held about the nature of the procedure, but sought to elucidate its
implications.
[14] Significantly,
reconsideration was again recognised by the court in
Cloete
as
part of the process of appeal. The court said:
“
[33]
Seen in context, as previously held by this court in
Liesching
I
, s 17(2)(f) procedure is part of the
appeal process. It involves making a judicial determination on a
defined legal issue between
the litigating parties. The President’s
decision under s 17(2)(f) of the Act thus falls comfortably within
the judicial function
and purpose of the Supreme Court of Appeal
leave-to-appeal process, in its instance, to be exercised by one
judge of that court,
its President.”
[15]
It should be recognised that the court in
Cloete
was answering a different question to the one I am faced with here:
that being the appealability of a decision taken by the President
of
the SCA under s 17(2)(f) of the Act. Thus, the court did not deal
with the question whether an application in terms of that
statutory
provision suspended the operation of an impugned order. The courts
have nonetheless repeatedly mentioned that an application
in terms of
s 17(2)(f) of the Act was to be granted when exceptional
circumstances exist.
[11]
[16]
I emphasise that the exercise of discretion by the President of the
SCA depends on the existence of exceptional circumstances.
Much like
the requirement that exceptional circumstances must exist for a court
to direct that an order which is subject to leave
to appeal must be
implemented. I view the two provisions as signifying a deviation from
the normal or ordinary course of things.
I anchor my heels on the
words of the court in
S
v Peterson
[12]
when Phatudi J likened exceptional circumstances to ‘
unusual,
extraordinary, remarkable, peculiar…’
factors. It is not surprising that in
Liesching
I
the court said of the procedure under s 17(2)(f) of the Act that it:
“
[136]
… prescribes a departure from the ordinary course of an appeal
process. Under s 17, in the ordinary course, the decision
of 2 or
more judges refusing leave to appeal is final. However, s 17(2)(f)
allows a litigant to depart from the normal course,
in exceptional
circumstances only, and apply to the President for reconsideration of
the recusal of leave to appeal.”
[16]
The court in
Cloete
further held:
“
[46]
… The finality of the decision is only disturbed in cases
where the President exercises her discretion to ‘refer
the
decision’ refusing leave to appeal to the Supreme Court of
Appeal for reconsideration.”
[17]
In a judgment of persuasive value, Moodley AJ held in
MEC
for Co-Operative Governance and Traditional Affairs and Others
[13]
that:
“
[32]
… In my view, and based on the observations referred to above
in Liesching, the refusal of the petition
was final determination of
the application for leave to appeal against the order granted by
Govern J, which refusal revived the
operation and execution of his
order. … Accordingly, I am of the view that the refusal of the
petition to the Supreme Court
of Appeal brought the appeal process to
an end, and the application for reconsideration of such refusal does
not suspend the order
granted by Govern J.”
[18] Likening the
procedure to the one under s 18(1) of the Act, Moodley AJ further
said the following:
[33] Another point which
I believe is supportive of the view which I take in this matter is
that under s 18(1) the operation and
execution of an order would be
suspended only if the court orders otherwise. In other words, the
order would not be suspended merely
on the bringing of the
application to suspend such order. In order to attain the suspension
of the order there has to be an order
from the court.
Similarly,
with respect to the proviso in s 17(2)(f), an application for
reconsideration of the refusal of a petition against an
order granted
would of itself not suspend the operation of the order. The President
would have to rule on the matter and, until
such ruling is made, and
even if the proviso of s [17(2)(f)] contemplated a suspension of the
order (which for reasons mentioned
above, I do not think it does),
the order would not be suspended until a favourable decision to the
application is pronounced on
the reconsideration of the petition.
”
(Emphasis added)
[19]
I am aligned to the thinking expressed above, and for different
reasons too. The fact of the matter is that it is not
a unique
situation that an opportunity to correct errors or vary a court order
is presented. But that does not imply, on its own,
that the order
sought to be corrected or varied has to be suspended. By way of
example, the Uniform Rules present an opportunity
to correct or vary
court order through a court process.
[14]
Invoking the procedure under the rule does not suspend the operation
of the order sought to be corrected or varied.
[20] I do not
believe it to be in error that the Act does not specifically state
that an application in terms of its s 17(2)(f)
shall have the same
effect as an application for leave to appeal. Also, I am loath to add
to or impute meaning to the statutory
provision that is not provided
for. To do so would be to undermine the distinction that the court in
Liesching I
told us exists between an application for leave to
appeal and one in terms of s 17(2)(f) of the Act.
[21] Finally, and
given the extraordinary nature of this procedure, I am of the
considered view that its invocation does not
result in the suspension
of the operation of the order under attack. In this regard I am in
agreement with the argument offered
by the respondents that the
institution of an application in terms of s 17(2)(f) of the Act does
not suspend the operation of the
order in relation to which the
reconsideration is asked for. Ordinarily, a decision by the judges
considering an application for
leave to appeal is final. When an
application for reconsideration is made, the finality of the order
related thereto is not disturbed
until the President has exercised
the discretion to refer the decision to be reconsidered.
[22] In my view a
party that requires the operation of an order to be suspended must,
in my view, obtain an order to that
effect pending the final
determination of the application under s 17(2)(f) of the Act. This is
the procedure that parties follow
when faced with the possibility of
an order being implemented which they wish to have rescinded, varied
or corrected under Rule
42 of the Uniform Rules.
Consideration of costs
[23] The
application was brought under extreme urgency. I have criticized this
as an abuse of court processes in my opening
paragraphs of this
judgment. That must attract costs in the event of the application
failing, though I do not believe that the
costs should be on a scale
higher than the ordinary party and party scale.
[24] The applicants
have in any event failed in their attempt to styme the operation of
the judgment and orders under attack.
This must mean, for obvious
reasons, that the application to have ABSA pay the costs of this
application on an attorney and client
scale must fail on account of
the failure of the application in its entirety.
Order
[24] I make the
following order:
[a] The application
is dismissed with costs.
MOKGERWA
MAKOTI
ACTING
JUDGE OF THE HIGH COURT
LIMPOPO
DIVISION, POLOKWANE
APPEARANCES
DATE
OF HEARING:
DATE
OF JUDGMENT:
25
MARCH 2024
09
APRIL 2024
FOR
APPLICANTS:
AB
ROSSOUW SC
K
PRETORIOUS
MOHALE
INCORPORATED ATTORNEYS
POLOKWANE
FOR
FIRST RESPONDENT :
KM
BOSHOMANE
LOWNDES
DLAMINI ATTORNEYS
WIERDA
PARK, PRETORIA
FOR
FOURTH RESPONDENT :
SS
TEBEILA
ML
SHOBA ATTORNEYS
POLOKWANE
FOR
FIFTH AND SIXTH RESPONDENTS :
SG
GOUWS
LF
TALJAARD
MINDE
SHAPIRO AND SMITH INC
c/o
DE BRUIN OBERHOLZER INC
POLOKWANE
[1]
Luna
Meubels Vervaardigers (Edms) Bpk v Makin and Another
1977 (4) SA 135
(W). Also,
East
Rock Trading 7 (Pty) Ltd and Another v Eagle Valley Granite (Pty)
Ltd and Others (11/33767) [2011] ZAGPJHC 196 (23 September
2011).
[2]
Act
No. 10 of 2013.
[3]
City
of Tshwane Metropolitan Municipality v Afriforum and Another
(157/15) [2016] ZACC 19; 2016 (9) BCLR 1133 (CC); 2016 (6) SA
279
(CC) (21 July 2016) para 59.
[4]
Section
18(1) of the Act.
[5]
Section
18(3) of the Act.
[6]
Bothma-Botha
Transport (Edms) Bpk v S Bothma & Seun Transport (Edms) Bpk
[2013]
ZASCA 176
;
2014
(2) SA 494
(SCA),
para 12.
[7]
See
University of Johannesburg v Auckland Park Theological Seminary and
Another (CCT 70/20)
[2021] ZACC 13
at para 65 – 67.
[8]
2019
(4) SA 219 (CC).
[9]
Ibid
at para 35.
[10]
2019
(2) SACR 130 (CC).
[11]
Liesching
I at para [137].
[12]
2008
(2) SACR 355 (C).
[13]
2021
(1) SA 432 (KZP).
[14]
Rule
42(1)(a) of the Uniform Rules.