IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
Case No: 4913/24
In the matter between
MNYAMEZELI JACKSON PENXA APPLICANT
AND
THE CENTRAL KAROO DISTRICT MUNICIPALITY 1st RESPONDENT
THE EXECUTIVE MAYOR OF THE CENTRAL KAROO 2nd RESPONDENT
DISTRICT MUNICIPALITY
THE SPEAKER OF THE CENTRAL KAROO DISTRICT 3rd RESPONDENT
MUNICIPALITY COUNCIL
MZUNGISI GRATITUDE NKUNGWANA 4th RESPONDENT
RALPH ROLAND LINKS 5th RESPONDENT
ANTON BREDELL, MINISTER OF LOCAL 6th RESPONDENT
GOVERNMENT, ENVIRONMENTAL AFFAIRS
AND DEVELOPMENT PLANNING
Date Heard : 07 October 2024
Date Delivered : 10 October 2024 (to be delivered via email to the respective
counsel)
___________________________________________________________________
JUDGMENT
___________________________________________________________________
THULARE J
[1] This is an urgent application wherein the applicant (Penxa) sought an order that
the judgment and order delivered in the matt er between the parties be executed
pending the fourth respondent’s (Nkungwana) application for leave to appeal to the
Supreme Court of Appeal and pending any further appeals by Nkungwana. Only
Nkungwana opposed the application. The application is opposed o n two grounds, to
wit, no urgency and that if there was any urgency it was self -created and that no
case was made for the relief sought as no exceptional circumstances existed.
URGENCY
[2] Penxa relied on five points on urgency. The first was that Nkungwana only filed
his petition on 13 September 2024 and that he endeavoured to consult and issue this
application as soon as possible thereafter. Secondly, there were both exceptional
circumstances u pon which he relied as well as the irreparable harm which would
result from Nkungwana remaining in office. Thirdly, a decision to retain Nkungwana
as the Municipal Manager (MM) of the Municipality, despite the court’s referral order
and Nkungwana’s lack of competence, was bound to have a detrimental effect on the
public purse of the Municipality and the public administration in view of the critical
role of a MM as the risk to the public purse was exceptionally amplified by
Nkungwana’s lack of competence. Fo urthly, the decision to retain Nkungwana in
office was prima facie unlawful and the decision itself was inherently abhorrent to the
rule of law and could not be countenanced to continue unchecked. Fifthly,
Nkungwana was appointed on a fixed term contract commencing on 1 February
2024 and which may not exceed one year after the Local Government elections. The
next Local Government elections were due in 2025. It was therefore self -evident that
a delay occasioned by bringing this application into the normal cause would render it
moot.
[3] Nkungwana’s case in opposition was that the judgment and order were issued
almost 3 and a half months before the issuing of this application. Nkungwana filed an
application for leave to appeal on 21 June 2024 and the first and third respondents
filed their application for leave to appeal on 14 June 2024. At that point Penxa was
unconcerned about the impact of the applications for leave to appeal on the
execution of the order. If his c urrent concerns were vali d he would have filed this
application immediately after the initial applications for leave to appeal were
submitted. Penxa showed no concern about Nkungwana’s ongoing appointment as
MM from the time the first applications for leav e to appeal were submitted until they
were dismissed on 13 August 2024. Penxa did not rely on any new facts or
circumstances which emerged between the filing of the first application for leave to
appeal and the filing of the application for leave to appeal to the Supreme Court of
Appeal, which caused or contributed to any exceptional circumstances or irreparable
harm, justifying the institution of this application on 19 September 2024. The alleged
grounds on which the section 18 application was premised, in cluding the grounds for
the alleged urgency on the matter, already existed when the first application for leave
to appeal were delivered. Nevertheless, Penxa did not at that stage apply for the
execution of the order. The matter was for these reasons not urgent and if it still was,
such urgency was self -created. Penxa did not attempt to explain why he would not
be able to afford substantial redress if the application was not heard on an urgent
basis.
[4] I am persuaded by the applicant’s reasons on the urgency of the matter. The
courts are guardians of their own processes. Where a court apprehends, on the
evidence before it, a to and fro- of litigants and that further litigation was in the offing,
it is just for the court to help crystallize the position for the parties [Ntlemeza v Helen
Suzman Foundation and Another 2017 (5) SA 402 (SCA) at para 32]. This is more so
where the issue related to the administrative stability of public administration,
especially as regards matters of leadership competency at municipal level, which
seems to be the weakest link on service delivery currently in our democratic state. I
am inclined to exercise my discretion in favour of accepting the urgency of the
matter.
OPERATION AND EXECUTION OF ORDER
[5] The applicable s ubsections of section 18 of the Superior Courts Act, 2013 (Act
No. 10 of 2013) (SuCA) provides:
“18 Suspension of decision pending appeal
1. Subject to subsection (2) and (3), and 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. …
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 do orders.”
The approach to the section was set out in UFS v Afriforum & Another [2016]
2018 (3) SA 428 (SCA) (UFS)at para 10 as follows:
“[10] It is further apparent that the requirements introduced by ss 18(1) and (3)
are more onerous than those of the common l aw. Apart from the requirement
of ‘exceptional circumstances’ in s 18(1), s 18(3) requires the applicant ‘in
addition’ to prove on a balance of probabilities that he or she ‘will’ suffer
irreparable harm if the order is not made, and that the other party ‘ will not’
suffer irreparable harm if the order is made. The application of rule 49(11)
required a weighing -up of the potentiality of irreparable harm or prejudice
being sustained by the respective parties and where there was a potentiality
of harm or preju dice to both of the parties, a weighing -up of the balance of
hardship or convenience, as the case may be, was required. Section 18(3),
however, has introduced a higher threshold, namely proof on a balance of
probabilities that the applicant will suffer irr eparable harm if the order is not
granted and conversely that the respondent will not, if the order is granted.”
[6] Penxa’s case was that an MM holds a central and senior position in local
government as both the head of the administration and accountin g officer for the
municipality. The MM is responsible for the formation, development and
management of effective, efficient and accountable administration. They are
responsible for the management of the provision of services to the community and
the appoin tment, management, training and discipline of staff, as well as advising
political structures and office bearers in the municipality. The functioning of
Nkungwana as MM, against the findings in the judgment and order, placed both the
municipality and membe rs of the public residing in its jurisdiction at risk. If
Nkungwana was to remain in office until the entire appeal was finalized, it would
prevent the municipality from acting in terms of the court order and would render
implementation of the judgment moo t in view of the limited time before the end of
Nkungwana’s term. This was so because at the end of that term, the position of MM
will have to be re -advertised. The harm that the public and Penxa would suffer was
irreparable. The municipality was one of th e poorest in the province and had a
history of maladministration and the community needed to be protected. On the other
hand the only harm to be suffered by Nkungwana was loss of income as MM. He
was however well qualified academically and held various pos itions in municipal
administrations and it would not be difficult for him to secure employment.
[7] On the other hand, Nkungwana’s case includes that if the order were to be
executed pending his application for leave to appeal or the appeal, it will ha ve the
result that when his appeal was heard a new MM would have been appointed. Such
an appointment would not be conditional but final and not subject to reconsideration
after determination of the appeal and this will render his appeal moot and would
violate his right of access to court. He would not receive any remuneration and had
been denied access to his workplace until finalization of the appeal process. If the
order was granted, he would appear to be incompetent for the position of MM when
that was n ot the case and this will impact on his reputation in the industry, income
and future employment prospects. If he applied for other employment opportunities,
this would affect his prospects of appeal as the appeal will become moot for that
reason, if leave is granted.
[8] The MM is the most senior state official within public administration in a
municipality. A person holding that position must meet all the requirements for
appointments to that office. It is in the public interest that where an appointme nt of a
person to that position was found wanting, the illegality not be allowed to continue on
flimsy grounds, as this will harm the municipality, the public and those affected
thereby, including Mr Penxa in this instance [ Democratic Alliance v Speaker of the
Knysna Municipal Council and Others (4247/2023; 4441/2023) [2024] ZAWCHC 141
(28 May 2024). In Incubeta Holdings (pty) Ltd and Another v Ellis and Another 2014
(3) SA 189 (GJ) at para 27 and 28 it was said:
“[27] Do these circumstances give rise to 'exceptionality' as contemplated? In
my view the predicament of being left with no relief, regardless of the outcome
of an appeal, constitutes exceptional circumstances which warrant a
consideration of putting the order into operation. The forfeiture of su bstantive
relief because of procedural delays, even if not protracted in bad faith by a
litigant, ought to be sufficient to cross the threshold of 'exceptional
circumstances'.
[28] The plight of the victor alone is probably all that is required to pass
muster. Nonetheless, I am not unconscious of the undesirable outcome that
relief granted by the court becomes a vacuous gesture. A court order ought
not to be lightly allowed to evaporate, a fate which, seems to me, would tend
to undermine the role of courts in the ordering of social relations.
[9] It cannot be in the public interest that Nkungwana remain in office until the appeal
process is finalized, and thereby prevent the municipality from acting in its own
interests and that of the community it served by ensuring that it appoints the MM
properly. If the law is that a prospective MM should go t hrough the eye of the needle
of SALGA assessments to enable the thread to weave proper municipal
management, it follows that an undue delay by someone who could not make the
eye should not be allowed to derail progress towards finality of a municipal manag er
appointment [ Ntlemeza at para 39]. This is moreso where the prospect of the
outcome of the case changing because of the appeal appears slim. No prospect of
success is a factor to be considered [ UFS at para 15] which in my view
would mitigate any potenti al harm which may follow immediate execution. The
damage to Nkungwana’s reputation and the like, if any, would not be occasioned by
the execution, but by the judgment and order [ Ntlemeza at para 46]. Public interest
and the crucial role of an MM in a munic ipality adds to factors that in my view
support the conclusion of irreparable harm Ntlemeza at para 47]. I am not persuaded
that the applicant made out a case for an order for the 4 th respondent to pay costs of
this application on a scale as between attorney and client. I am not satisfied that
Nkungwana’s exploring of remedies available to him justified an expression of
displeasure with him.
[10] For these reasons I am persuaded tha t on a balance of probabilities, the
applicant made out a case for the following order:
(a) The judgment and order granted by this court on 5 June 2024 be executed
pending the 4 th respondent’s application for leave to appeal to the Supreme
Court of Appeal and pending any further appeals by any of the respondents.
(b) The 4th Respondent to pay the costs on scale B.
_________________________
DM THULARE
JUDGE OF THE HIGH COURT