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2024
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[2024] ZAFSHC 223
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Dikoko v Tswelopele Municipality and Others (3675/2023) [2024] ZAFSHC 223 (19 July 2024)
IN THE HIGH COURT
OF SOUTH AFRICA,
FREE STATE
DIVISION, BLOEMFONTEIN
Reportable:
NO
Of Interest to other
Judges: NO
Circulate to
Magistrates: NO
Case No: 3675/2023
In
the matter between:
BOITSHOKO
PERCIVAL DIKOKO
Applicant
and
TSWELOPELE
MUNICIPALITY
1
st
Respondent
THE
ACTING MUNICIPAL MANAGER
2
nd
Respondent
LEBOHANG
SHADRACK MALOKASE
3rd
Respondent
HEARD
ON:
19 JULY 2024
JUDGMENT
BY
:
MHLAMBI, J
APPLICATION FOR LEAVE
TO APPEAL
[1]
This an application for leave to appeal the judgment and order I
granted on 08 January 2024 in which I granted
the respondent’s
condonation application with costs and dismissed the main application
with costs.
[2] The
grounds of appeal are as follows:
“
The
learned Judge erred:
1.
In finding that there was a proper
application for condonation filed before court;
2.
In granting the application for
condonation;
3.
In finding that the replying affidavit
contained new matter;
4.
In find that the supplementary affidavit
was necessary to cure the prejudice suffered by the respondents;
5.
In not granting the applicant the
opportunity to respond to the supplementary affidavit notwithstanding
the third respondent’s
invitation to show and the agreement in
court that if condonation is granted applicant will have an
opportunity to file a further
affidavit.
6.
Not making any finding on the cover up
in the organogram attached to the answering affidavit;
7.
In not finding that the respondent did
not qualify for the position.”
[3]
Based on the above, the applicants submitted that the proposed appeal
had reasonable prospects of success
in that it is in the interest of
justice that leave be granted as contemplated in section 17(1)(a)(i)
and (ii) of the Superior
Courts Act 10 of 2013, (“the Act”).
[4]
Section 17(1) of the Act provides that leave to appeal may only be
given where the judge or judges concerned
are of the opinion that the
appeal would have prospects of success or there is some other
compelling reason why the appeal should
be heard, including
conflicting judgments on the matter under consideration. It is
evident that the applicant’s leave to
appeal is predicated
solely on the provisions of section 17(1)(a)(i) of the Act.
[5]
In
Ramakatsa
and other v African National Congress and another,
[1]
it was held that the test of reasonable prospects of success
postulated a dispassionate decision based on the facts and law that
a
court of appeal could reasonably arrive at a conclusion different to
that of the trial court. In other word, the appellants needed
to
convince the court on proper grounds that they had prospects of
success on appeal. Those prospects of success must not be remote,
but
there must exist a reasonable chance of succeeding. A sound rational
basis for the conclusion that there are prospects of success
must be
shown to exist.
[6]
The relief sought and the only issue for adjudication (apart from a
prayer for costs) was the setting aside
of the appointment of the
third respondent as the technical service director of the first
respondent.
[2]
This is contained
in the grounds of appeal as the seventh ground. The applicant failed
to set out facts in the founding affidavit
which justified the
granting of the relief sought.
[3]
A perusal of the sparse heads of argument and the grounds of appeal
show that the emphasis is more on the condonation application
than in
showing that the applicant had reasonable prospects of success in the
appeal.
[7]
I have dealt with the reasons for the granting of the condonation
application and the admission of the supplementary
affidavit in the
judgment.
[4]
The applicant
failed to discharge the onus that reasonable prospects of success
existed that he would succeed on appeal. The application
for leave to
appeal must therefore fail.
[8]
I make the following order:
Order:
1.
The application for leave to appeal is
dismissed with costs.
MHLAMBI, J
On
behalf of the Applicant:
Adv.
J Lubbe SC
Instructed
by:
Finger
Attorneys
4
Captain Proctor Street
Westdene
Bloemfontein
On
behalf of the respondent:
Adv.
AE Ayayee
Instructed
by:
Rampai
Attorneys
48
General Hertzog Street
Dan
Pienaar
Bloemfontein
[1]
(424/2019)
[2021] ZASCA 31
(31 March 2021)
[2]
Paragraphs
2 and 9 of the judgment.
[3]
Paragraphs
10 to 12 of the judgment.
[4]
Paragraphs
14 and 17 of the judgment.