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2024
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[2024] ZAFSHC 266
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South African Municipal Workers' Union v Maluti-A-Phofung Water (SOC) Ltd and Others (5265/2022) [2024] ZAFSHC 266 (20 August 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable:
YES/NO
Of
Interest to other Judges:
YES/NO
Circulate
to Magistrates: YES/NO
Application
number: 5265/2022
In
the matter between:
SOUTH
AFRICAN MUNICIPAL WORKERS’ UNION
Applicant
and
MALUTI-A-PHOFUNG
WATER (SOC) LTD
1
st
Respondent
MALUTI-A-PHOFUNG
MUNICIPALITY
2
nd
Respondent
ACTING
CEO: MALUTI-A-PHOFUNG WATER
(SOC)
LTD: MR LEPHUTHING
3
rd
Respondent
MEC:
DEPARTMENT OF CO-OPERATIVE
GOVERNANCE
AND TRADITIONAL AFFAIRS:
FREE
STATE
4
th
Respondent
DL
ERNEST
5
th
Respondent
M
XOLANI
6
th
Respondent
L
MALAKOANE
7
th
Respondent
TC
SEKHELE
8
th
Respondent
MR
RANTSHO
9
th
Respondent
JG
MAHLANGU
10
th
Respondent
I
MOSIA
11
th
Respondent
NM
MBELE
12
th
Respondent
LS
MOKOENA
13
th
Respondent
LW
MAPHIKE
14
th
Respondent
CORAM:
VAN ZYL, J
HEARD
ON:
Heads of
Argument Delivered on
27 and 29
September
2023 for Consideration in Chambers.
DELIVERED
ON:
20
AUGUST 2024
[1]
This is an application for leave to appeal against the whole of my
judgment in terms whereof I
struck the application from the roll,
with the applicant to pay the costs of the application.
[2]
By agreement between the parties this application was dealt with in
chambers in terms of section
17(2)(d) of the
Superior Courts
Act, 10 of 2013 (“the Act”), read with Free State Rule
16.5, w
ithout a hearing in open
court, but on consideration of written heads of argument filed on
behalf of both parties.
[3]
I profusely apologise for the delay in delivering this judgment which
was due to a
bona fide
mistake on my side.
[4]
The late filing of the applicant`s heads of argument are condoned.
Applicable
legal principles in respect of applications for leave to appeal:
[5]
Section 17(1)(a) of the Act determines as follows:
“
1.
Leave to appeal may only be given where the judge or judges concerned
are of the opinion that –
(a)(i) the
appeal would have a reasonable prospect of success; or
(ii)
there is some other compelling reason why the appeal should be heard,
including conflicting judgments on the matter under consideration;
(b)
…”
[6]
In the judgment of
Acting National Director of Public
Prosecutions v Democratic Alliance
In Re
Democratic
Alliance v Acting National Director of Public Prosecutions
(19577/09) [2016] ZAGPPHZ 489 (24 June 2016) the court held at
paragraph [25] of the judgment that the Act has raised the bar for
granting leave to appeal and in this regard it referred to the
judgment of
The Mont Chevaux Trust (IT 2012/28) v Tina Goosen
and 18 Others
2014 JDR 2325 (LCC). See also
Rohde v S
2020 (1) SACR 329
(SCA) at para [8] and
Fair-Trade Independent
Tobacco Association v President of the Republic of South Africa and
Another
(21688/2020) [2020] ZAGPPHC 311 (24 July 2020) at
para [4].
[7]
In considering whether there is some other
compelling reason why the proposed appeal should be heard, an
important question of law may constitute such a compelling reason.
However, the merits thereof still need to be considered in deciding
whether to grant leave to appeal or not. In
Caratco
(Pty) Ltd v Independent Advisory (Pty) Ltd
2020 (5) SA 35
(SCA) at para [2] the court determined as follows in
this regard:
[2]
In order to be granted leave to appeal in terms of s 17(1)
(a)
(i)
and
s 17(1)
(a)
(ii) of the
Superior Courts Act an
applicant for leave must satisfy the court that the appeal would have
a reasonable prospect of success or that there is some other
compelling reason why the appeal should be heard. If the court is
unpersuaded of the prospects of success, it must still enquire
into
whether there is a compelling reason to entertain the appeal. A
compelling reason includes an important question of law or
a discrete
issue of public importance that will have an effect on future
disputes. But here too, the merits remain vitally important
and are
often decisive. Caratco must satisfy this court that it
has met this threshold.”
The
first ground of appeal:
[8]
My aforesaid order of striking the application from the roll followed
upon the resultant finding
which I made at paragraph [37] of my
judgment:
“
[37]
In the circumstances I am not satisfied that Kramer Weihmann
Attorneys are properly authorised to act on behalf
of the applicant
and/or to have instituted and prosecuted the application on behalf of
the applicant. I am
mutatis
mutandis
not
satisfied that the Provincial Secretary and/or the Free State
provincial structure of the applicant is properly authorised to
act
on behalf of the applicant and/or to have instituted and prosecuted
the application on behalf of the applicant.”
[9]
The first ground of appeal deals with the issue of authority and is,
inter alia,
set out in the Notice of Application for Leave to
Appeal as follows:
“
4.
The court erred through – respectfully – applying the
Rule 7
Notice that was filed to both the deponent and Kramer Weihmann
Attorneys. The
Rule 7
Notice specifically challenges the authority of
Kramer Weihmann to act on behalf of the Applicant (who the court had
apparently
accepted was SAMWU as a National entity). There was no
similar challenge – in terms of
Rule 7
– launched against
the authority of the deponent to launch the proceedings on behalf of
SAMWU.
5.
As a consequence there was no valid challenge to the authority of the
deponent to represent
the Applicant.
6.
Respectfully and as a consequence, the court could not find and
indeed should not have found
that the deponent to the Founding
Affidavit lacked authority to institute the proceeding on the
Applicant`s behalf.”
[10]
I indeed found that the “applicant” is the national
entity of SAMWU. The
Rule 7
notice in fact challenged the authority
of Kramer Weihmann to act on behalf of the applicant; hence, the
national entity. At paragraph
[31] onwards of my judgment I dealt
with the e-mail which Kramer Weihmann filed in their reply to the
Rule 7
notice and found as follows at paragraph [35] of my judgment:
“
[35]
From the aforesaid it is evident that the Free State provincial
structure of the applicant purportedly “
authorised
”
the institution of the application on behalf of the national entity,
SAMWU, but the Provincial Secretary completely failed
to indicate any
basis upon which it can be accepted that the Provincial Secretary
and/or the provincial structure of the applicant
had the authority to
and/or had been duly authorised to have instructed Kramer Weihmann
Attorneys to act on behalf of the applicant
and/or to institute the
application on behalf of the applicant. The same lack of authority is
applicable with regard to the Provincial
Secretary`s and/or the
provincial structure`s authority to act on behalf of the applicant
and/or to have instituted the application
on behalf of the
applicant.”
[11]
As also cited in my judgment, the following principle,
inter
alia,
was enunciated in
Eskom
V Soweto City Council
1992 (2)
SA 703
(W) at 705 F – G:
“
The
developed view, adopted in Court
Rule 7(1)
, is that the risk is
adequately managed on a different level. If the attorney is
authorised to bring the application on behalf
of the applicant, the
application necessarily is that of the applicant. There is no need
that any other person, whether he be a
witness or someone who becomes
involved especially in the context of authority, should additionally
be authorised. It is therefore
sufficient to know whether or not
the attorney acts with authority.”
[12]
The aforesaid led to my resultant finding at paragraph [37] of my
judgment, already cited at paragraph [7],
supra.
The
second ground of appeal:
[13]
The second ground of appeal as set out in paragraphs 14 and 15 of the
Notice of Application for Leave to
Appeal, cannot, in my view,
constitute an independent and substantive ground of appeal unless I
grant leave to appeal on the first
ground. Only if and when the first
ground of appeal succeeds, will the merits of the applicant`s
application become applicable.
Conclusion
on the first ground of appeal:
[14]
After I have duly considered the arguments raised by Mr Grobler in
his heads of argument filed on behalf
of the applicant, in
conjunction with the opposition thereto raised by Mr Masihlelo in his
heads of argument filed on behalf of
the first (and third)
respondents, I am of the opinion that the first ground of appeal
would have a reasonable prospect of success
on appeal. If indeed
successful, the merits of the application will have to be decided
although I did not deal with it in my judgment.
Other
issues raised in the first (and third respondents`) heads of
argument:
[15]
Mr Masihlelo also raised two further points in his heads of argument
regarding the finality, or not, of my
order and mootness of the
proposed appeal as from even before I issued my judgment in the main
application The said issues will
be considered by the court of appeal
in conjunction with the first ground of appeal.
Court
of Appeal:
[16]
The applicant requested in its Notice of Application for Leave to
Appeal that leave to appeal be granted
to the Full Court of this
Division. Section 17(6)(a) of the Act determines as follows:
“
(6)
(a)
If
leave is granted under subsection (2)
(a)
or
(b)
to
appeal against a decision of a Division as a court of first instance
consisting of a single judge, the judge or judges
granting leave must
direct that the appeal be heard by a full court of that Division,
unless they consider-
(i) that
the decision to be appealed involves a question of law of importance,
whether because of its general application
or otherwise, or in
respect of which a decision of the Supreme Court of Appeal is
required to resolve differences of opinion; or
(ii) that
the administration of justice, either generally or in the particular
case, requires consideration by
the Supreme Court of Appeal of the
decision, in which case they must direct that the appeal be heard by
the Supreme Court of Appeal.”
[17]
In the circumstances of the present matter I agree with the request
by the applicant that leave to appeal
to the Full Court of this
Division should be granted.
[18]
There is no reason why the usual order as to costs is not to be
granted.
Order:
[19]
The following order is granted:
1.
The applicant is granted leave to appeal against the whole of the
judgment and order of Van
Zyl, J to the Full Court of this Division.
2.
The costs of the application for leave to appeal are costs in the
appeal, which costs are to include
the reserved costs of 11 September
2023.
C.
VAN ZYL, J
On
behalf of the applicant:
Adv
S. Grobler SC
Instructed
by
:
Kramer
Weihmann Attorneys
BLOEMFONTEIN
E-mail:
christine@kwinc.co.za
On
behalf of the first and
third
respondents:
Adv
P.T. Masihlehlo
Instructed
by:
Phatshoane
Henney Inc.
BLOEMFONTEIN
E-mail:
tata@phinc.co.za
On
behalf of the fourth
respondent
(Notice to Abide
filed
in the main application):
Mr
G.P. Chauke
Instructed
by:
Office
of the State Attorney
BLOEMFONTEIN
E-mail:
GChauke@justice.gov.za