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2024
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[2024] ZAECMHC 67
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Mambafula v Alfred Nzo District Municipality (3264/2024) [2024] ZAECMHC 67 (20 August 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION – MTHATHA)
Reportable/
Not
Reportable
Case
no.: 3264/2024
Matter
heard on: 07 August 2024
Judgment
delivered on: 20 August 2024
In
the matter between:
SIMVUMILE
MAMBAFULA
Applicant
And
ALRED
NZO DISTRICT MUNICIPALITY
Respondent
JUDGMENT
Zono
AJ
Introduction
[1]
This application was brought pursuant to a directive issued in this
court, setting out directions for urgent matter. Consequently,
the
matter was enrolled in the unopposed motion court on 01
st
August 2024 wherein it was postponed to 06
th
August 2024
with the following terms:
“
2. The
applicant shall file their replying affidavit on or before 02
nd
August 2024. (sic)
3.The parties shall file their
heads of argument/ supplementary heads of argument on or before 05
th
August 2024.”
[2]
On 06
th
August 2024 the matter appeared in court and due
to congestion of the roll and lateness of hour the matter was
scheduled to be
heard 07
th
August 2024. This matter was
duly heard on 07
th
August 2024 with all sets of papers,
including parties’ respective heads of argument, having been
filed.
[3]
The applicant’s main relief appears in paragraph 3 of the
notice of motion which reads as follows:
“
3
.
That the operation of the order of this court issued on 10
th
July 2024 by the Honourable Justice Brooks be in operation and
extended in terms of section 18(2) and (3) of the Superior Court
Act
10 of 2013 pending the application for leave to appeal
.
[4]
It is prudent and expedient to quote verbatim the contents of the
order of Brooks J dated 10
th
July 2024. The following are
its terms:
“
1. The
applicant’s non-compliance with the Uniform Rules of court
relating to form, time frames and service is condoned.
2. The respondent is hereby
interdicted and restrained from conducting any interviews relating to
the post of Director Co-operative
services advertised under
re-advertisement notice 18/2023/2024, External, and from making any
permanent appointment to the post
pending the finalization of the
review contemplated in Part B of the notice of motion.
3. The costs attendant upon the
prosecution and argument on an opposed basis relating to the
determination of the relief sought
in Part A of the notice of motion
are reserved for decision by the court determining the relief sought
in Part B thereof.”
[5]
I am mindful of the fact that the application is purported to be made
in terms of Section 18(2) and (3) of the Superior Court
Act 10 2013.
For the sake of expediency, I deem it appropriate to quote the full
text of the provisions of Section 18(1), (2) and
(3) of the Superior
Court Act 10 of 2013.
[6]
Section 18
[1]
provides:
“
(1)
Subject to subsections (2) and (3), unless the court under
exceptional circumstances orders otherwise, the operation and
execution
of a decision which is the subject of an application for
leave to appeal or of an appeal, is suspended pending the decision of
the application or appeal.
(2) Subject to subsection (3),
unless the court under exceptional circumstnces orders otherwise, the
operation and execution of
a decision that is an interlocutory order
not having the effect of a final judgment, which is the subject of an
application for
leave to appeal or an appeal is not suspended pending
the decision of the application or appeal.
(3) A court may only order
otherwise as contemplated in subsection (1) or (2) if the party who
applied to the court to order otherwise,
in addition proves on a
balance of probabilities that he or she will suffer irreparable harm
if the court does not so order and
that the other party will not
suffer irreparable harm if the court so orders.”
[7]
This matter involves and invokes interpretation of Rule 18(1), (2)
and (3) of the Superior Court Act 10 of 2013 and the court
order
dated 10
th
July 2024 by Books J.
Wallis
JA
[2]
held:
“
[18]
Interpretation is the process of attributing meaning to the words
used in a document, be it legislation, some other statutory
instrument, or contract, having regard to the context provided by
reading the particular provision or provisions in the light of
the
document as a whole and the circumstances attendant upon its coming
into existence. Whatever the nature of the document, consideration
must be given to the language used in the light of the ordinary rules
of grammar and syntax; the context in which the provision
appears;
the apparent purpose to which it is directed and the material known
to those responsible for its production.”
[8]
Under the section 18(1) mere filing of no application for leave to
appeal automatically suspends the operation and execution
of a
decision,
[3]
unless the court
under exceptional circumstances otherwise directs. In simple terms
the operation and execution of a decision is
automatically suspended
unless the court grants an order that has an effect of lifting that
suspension. A party in favour of whom
an order was granted cannot
simple execute on the said order if there is an application for leave
to appeal duly filed unless the
court directs otherwise.
[9]
It is clear from the notice of motion that the applicant does not
intend to invoke the provisions of section 18(1) of the Superior
Court Act. The applicant seeks to retain the operation of the court
order of Brooks J dated 10
th
July 2024. The position under this subrule is that, only the court
which granted the order appealed against had the power to grant
an
application for leave to allow its judgment to be carried into effect
pending decision of the appeal.
[4]
Section 18(1) of the Superior Court Act applies to all final
decisions, that is those granting as well as those dismissing a claim
or an application.
[5]
[10]
However section 18(2) of the Superior Courts Act governs a different
situation all together. Under this subsection, if a court
order or
decision which is subject of an application for leave to appeal or of
an appeal has an attribute of being an interlocutory
order not having
the effect of a final judgment, it is not suspended pending the
decision of the application or appeal. Proper
Construction of this
subsection is that an interlocutory order not having the effect of a
final judgment which is subject of an
application for leave to appeal
or an appeal demonstrates that such an order may be executed
notwithstanding filing or existence
of an application for leave to
appeal. Such an order is not suspended pending finalization of an
application for leave to appeal
or of an appeal.
[11]
If the party against whom an interlocutory order having no effect of
a final judgment wishes to suspend the operation and execution
of
that order, that party must approach the high court to otherwise
direct or to order the suspension of an interlocutory order
pending
the decision of an application for leave to appeal or of an appeal.
Otherwise, the default position is that an interlocutory
order with
no effect of a final judgment is readily operational and executable
notwithstanding the filing or existence of an application
for leave
to appeal. I pause to mention that exceptional circumstances must
exist for that order to be granted.
[12]
The Supreme Court of Appeal
[6]
makes a contradistinction between the provisions of section 18(1) on
one hand and section 18(2) on the other and come to a conclusion
that
an interlocutory order that does not have the effect of a final
judgment is not suspended pending the decision of the application
for
leave to appeal or appeal.
[13]
The full text of the relevant paragraphs in Ntlemeza matter is as
follows:
“
[25]
In
order to embark on a determination of whether the preliminary
jurisdictional point raised on behalf of General Ntlemeza, set
out in
para 17 above, has substance, it is necessary to consider the
provisions of
s
18(1)
and
(2). These sections provide for two situations.
First,
a judgment (the principal order) that is final in effect, as
contemplated in
s
18(1):
In
such a case the default position is that the operation and execution
of the principal order is suspended pending ‘the
decision of
the application for leave to appeal or appeal’. Second, in
terms of
s
18(2)
,
an interlocutory order that does not have the effect of a final
judgment: The default position (a diametrically opposite one to
that
contemplated in
s
18(1))
is
that the principal order is not suspended pending the decision of the
application for leave to appeal or appeal. This might
at first blush
appear to be a somewhat peculiar provision as, ordinarily, such a
decision is not appealable. However, this subsection
appears to have
been inserted to deal with the line of cases in which the ordinary
rule was relaxed referred to in para 20 above.
[26]
Both sections empower a court, assuming the presence of
certain
jurisdictional
facts,
to
depart from the default position. It is uncontested that the high
court’s judgment on the merits of General Ntlemeza’s
appointment is one final in effect and therefore
s
18(1)
applies.
This section provides that the operation and execution of a decision
that is the ‘subject of an application
for leave to appeal or
appeal’ is suspended pending the decision of either of those
two processes.
Section
18(5)
defines
what the words ‘subject of an application for leave to appeal
or appeal’ mean: ‘a decision becomes
the subject of an
application for leave to appeal or of an appeal, as soon as an
application for leave to appeal or a notice of
appeal is lodged with
the registrar in terms of the rules.
[14]
As things stand in this case, the default position obtains, that is,
the order of 10
th
July 2024 is not suspended. The
respondent remains interdicted from conducting interviews regarding
the post of a Director- Corporate
Services, pending final
determination of the review application in part B.
[15]
The court order referred to in paragraph 4 above which is the subject
matter of these proceedings is in the nature of an interlocutory
order not having effect of a final judgment. It is admittedly
confronted with an application for leave to appeal. That order is
operational irrespective.
[16]
The court order dated 10
th
July 2024 was granted as a temporal measure, pending finalization of
a review application in Part B hereof. A pertinent question
that
needs to be answered is whether this application was necessary in the
light of the nature of the court order that is subject
of an
application for leave to appeal. I think not. Applications of this
nature are made only when the principal order is final
in nature,
which has its attributes.
[7]
[17]
Harms
JA
[8]
held:
“
A
"judgment or order" is a decision which, as a general
principle, has three attributes, first, the decision must be final
in
effect and not susceptible of alteration by the court of first
instance; second, it must
be
definitive of the rights of the parties; and, third, it must have the
effect of disposing of at least a substantial portion of
the relief
claimed in the main proceedings (Van Streepen & Germs (Pty) Ltd
case supra at 586I-587B; Marsay v Dilley
[1992]
ZASCA 114
;
1992
(3) SA 944
(A)
962C-F).
[18]
The order dated 10
th
July 2024 by Brooks J is susceptible to alteration by the review
court, which is a court of first instance. The court order aforesaid
has no effect of disposing of a portion of review application in Part
B. This court order is not definitive of the rights of parties
hereto. Consequently, and as a corollary this is not a final order
that is liable to be suspended by mere existence and filing
of an
application for leave to appeal. It is an interlocutory order having
no effect of a final judgment that, by operation of
the Law, cannot
be suspended by a mere filing of an application for a leave to
appeal.
[19]
It is plain from paragraph 2 and 3 of the court order dated 10
th
July 2024 that Brooks J granted an interlocutory order and that order
is the one envisaged in section 18(2) of the Superior Court
Act. The
Ordinary grammatical meaning of words used in section 18(2) relating
to the interlocutory order must be adhered to.
[9]
Departure
from the ordinary grammatical meaning would lead to an absurd
result.
[10]
[20]
If the relief sought by the applicant can be granted, that would be
done
ex
abundanti cautela
to
make it abundantly clear that filing of an application for leave to
appeal does not suspend the operation and execution of the
interlocutory order, otherwise it was not legally necessary to bring
this application.
[21]
It is not only from the submissions made by the respondent’s
Counsel in court, but also in the respondent’s answering
affidavit that the respondent is intent on proceeding with the
interviews notwithstanding that there is a court order of Brooks
J
interdicting same. In what follows I make few excerpts from the
answering affidavit to illustrate respondent’s intention.
[22]
The following are relevant paragraphs in the answering affidavit that
manifestly demonstrate respondent’s intentions
to defeat Books
J’s Order of 10
th
July 2024.
“
63.
As already demonstrated the respondent stands to suffer prejudice in
the event the position that is subject of this litigation
is not
filled, because the vacancy may and is likely to cause Labour
instability since the efficiency of the Department will lag
behind.
64.It
will also result in a negative audit finding since in terms of the
policy of the Human Resources of the respondent no position
must
remain vacant for longer than three months, this one has been vacant
for more than a year now. It is necessary that the respondent
must
ameliorate potential suffering of the Department by securing a
permanent appointment.”
[23]
Now that it is plain that the order of this court granted on 10
th
July 2024 is operational and executable regardless of the fact that
it is subject of an application for leave to appeal,
[11]
the respondent is duty bound to obey that court order. All orders of
court have to be obeyed until they are properly set aside.
[12]
The
Constitution
[13]
provides
that:
“
An order
or decision issued by a court binds all persons to whom and organs of
state to which it applies.”
[24]
Allowing parties to ignore court order would shake the foundations of
the law and compromise the status and constitutional
mandate of the
courts. The duty to obey orders is the Stanchion around which a state
founded on the Supremacy of the Constitution
and the Rule of law is
built.
[14]
An instability may
only occur when parties are allowed to ignore court orders with
disdain and impugnity.
[25]
The intention of the respondent as adumbrated above leads to an
inescapable impression that the application for leave to appeal
was
only filed with the sole purpose of opening gates for the respondent
to frustrate the operation of the court order dated 10
th
July 2024. While it is apparent from the papers, it was also argued
in court on behalf of the respondent that the appeal may not
have
practical effect or result
[15]
in that the respondent intends to conduct the interdicted interviews
possibly before the appeal could be finalized. The respondent
does
not, for that reason, intend to succeed on the appeal as the process
of appeal will be academic and hypothetical once the
interdicted
interviews run its course to the end.
[16]
Part B of this application will be rendered nugatory as well.
[26]
It is unnecessary to deal in this judgment with the kind of harm and
prejudice that would befall the applicant should the interviews
be
conducted before the finalization of the review in Part B of this
application. It is so because Brooks J, when granting the
interlocutory order of 10
th
July 2024 considered that as part of the requisites for the grant of
an interlocutory order.
[17]
[27]
I share all of these sentiments only to make a point that it is
necessary for the sake of clarity and certainly that the respondent
must be made aware that it has a constitutional obligation to obey
the order of Brooks J granted on 10
th
July 2024
notwithstanding that it is subject of an application for leave to
appeal.
[28]
However, I am mindful that of the fact that this application was ill
conceived and premised on wrong principles of the law,
alternatively
on a clear misunderstanding of the law or correct legal principles.
When the applicant came to this court for protection,
that protection
had already been provided by the law, to wit, Section 18(2) of the
Superior Court Act 10 of 2013. As corrollary
it was not necessary for
this application to have been made.
[29]
The trajectory which this application took requires this court to
exercise power bestowed upon it in terms of section 172(1)
of the
Constitution, which provide:
“
1. When
deciding a Constitutional matter within its power a court-
(a) must declare that law or
conduct that is inconsistent with the Constitution is invalid to the
extent of its inconsistency; and
(b) may make any order that is just
and equitable, I including-
(i)
an order limiting the retrospective effect of the declaration of
invalidity; and an order suspending the declaration of invalidity
for
any period and on any conditions, to allow the competent authority to
correct the defect
.”
[30]
In paragraph 5 of the notice of motion the applicant seeks a
discretionary order for further and / or alternative relief. I
therefore seek to make use of that to grant just and equitable relief
envisaged in Section 172(1) of the Constitution.
[31]
For the sake of completion and clarity it is underscored that this
matter concerns not only the provisions of section 18(2)
of the
Superior Act 10 of 2023, but also the provisions of section 1 of the
Constitution coupled with the provisions of section
165(5) of the
Constitution. The binding nature of the order of Brooks J dated 10
th
July 2024 is implicated in the instant proceedings. If that court
order may be allowed to be undermined for any reason that may
have
devastating effect on the Rule of law and our Constitutional order.
Costs
[32]
As adumbrated above, the protection the applicant sought by means of
this application is a protection already provided by
section 18(2)
of
the
Superiors Court Act 10 of 2013
. Therefore, it was not necessary
for this application to have been launched in the first place. This
application was premised on
a clear misunderstanding of the law.
Accordingly, the applicant cannot be entitled to any costs.
[33]
The respondent followed the incorrect premised upon which this
application was made, and even labored under the misapprehension
that
its application for leave to appeal had an effect of suspending an
interlocutory order which is clearly having no effect of
a final
judgment. Opposition of this application would equally not have made
any difference. It was unnecessary.
[34]
On the facts of this case there is no party who is a winner. No party
is entitled to costs.
Order
[35]
In the result I make the following order:
35.1
The respondent is directed to
obey the order of this court granted on 10
th
July 2024 by not conducting the interdicted interviews pending final
determination of Part B of this application.
35.2
There shall be no order as to
costs.
Zono
AJ
Acting
Judge of the High Court
APPEARANCES:
For
the applicant
:
Adv Z BADLI
Instructed by
:
JOLWANA
MGIDLANA INC
19
Park Road
Mthatha
TEL:
047 531 0394
E-mail
: jolwana@telkomsa.net
Ref
: KM/fg/CIV-3136
For
the Respondents
:
ADV. B
MASWAZI
Instructed by
:
F. NTLELELEKO
ATTORNEYS
73
Blakeway Road
Mthatha
Email:
fiksntleks@gmail.com
[1]
Superior
Court Act 10 of 2013
[2]
Natal
Joint Municipal Pension Fund v Endumeni Municipality
2012
(4)
SA 56
Para 18
[3]
Incubeta
Holdings (Pty) ltd v Ellis
2014
(3) SA 189
(GT)at 195F-196C
[4]
Hermansburg
Mission v Sugar industry Central Board
1981(4) SA 717 (D) at 723E-H and 726A
[5]
Uitzig
Secondary School Governing Body v MEC for Education, Western Cape
2020 (4) SA 618
(WCC) Para 6-15
[6]
Ntlemeza
v Helen Suzman Foundation and another
(402/201)
[2017] ZASCA 93
(9 June
2017); 2017 (5) SA 402
SCA Para 25-26
[7]
Section
18(1) Superior Court Act 10 of 2013
[8]
Zweni
v Minister of Law and order
1993
(1) SA 523
(A) at 532H-533A
[9]
Natal
Joint Municipality pension fund v Endumeni Municipality
2012(4) SA 593 SCA Para 17
[10]
Cools
Ideas 1186 CC v Hubbard and another
2014 (4) SA 474
(CC) Para 28
[11]
Section
18(2) of the Superior Court Act 10 of 2013
[12]
Culverwell
v Beira
1992 (4) SA 490
(W) at 494 A-C
[13]
Section
165 (5) of the Constitution
[14]
Department
of Transport and others v Tasima (Pty) Ltd
2017 (2) SA 622
(CC) Para 123
[15]
Section
16(2) of the Superior Court Act 10 of 2013
[16]
Section
16(2) (a) of the Superior Court Act 10 of 2023 provides:
(i)
When at the hearing of an appeal the issues are of such a nature
that the decision sought will have no practical effect or
result,
the appeal may be dismissed on this ground alone.
[17]
Setlogelo
v Setlogelo
1927
AD 222
at 227