REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
CASE NO: 19623/2024
DERICK ANTONY APPEL First Applicant for Intervention
BONGIWE MKHWIBISO Second Applicant for Intervention
MAMOTHIPANE SYLVIA SHALE Third Applicant for Intervention
MZWANELE MPAMBANI Fourth Applicant for Intervention
RINAH LORRAINE MIENIES Fifth Applicant for Intervention
MBOGENI ALFRED NOMKOKO Sixth Applicant for Intervention
MONWABISI RAYMOND NONGXAZA Seventh Applicant for Intervention
And
DEMOCRATIC ALLIANCE First Respondent
LINCOLN DE BRUYN Second Respondent
In the matter between:
DEMOCRATIC ALLIANCE First Applicant
LINCOLN DE BRUYN Second Applicant
And
COUNCIL OF THEEWATERSKLOOF First Respondent
LOCAL MUNICIPALITY
SPEAKER OF THEEWATERSKLOOF Second Respondent
LOCAL MUNICIPALITY
THEEWATERSKLOOF LOCAL Third Respondent
MUNICIPALITY
JOHN MICHELS Fourth Respondent
THEUNIS ZIMMERMAN Fifth Respondent
Heard: 18 December 2024
Delivered: Electro nically on 04 February 2025
JUDGMENT
LEKHULENI J
Introduction
[1] This is an application brought on an urgent basis by the first to the eight
applicants (“the intervening applicants ”) for an order that they be granted leave to
intervene in the main application in which this Court granted judgment on 15
September 2024 setting aside the decis ion of the Council of the Theewaterskloof
Local Municipality to remove Councillor Lincoln De Bruyn from his position as the
Municipality’s Executive Mayor and the subsequent election of Theunis Zimmerman
as the new Executive Mayor. The applicants seek leave to intervene and appeal this
Court's judgment. The applicants have, simultaneously with the intervening
application, launched an application for leave to appeal the judgment of this Court
delivered on 15 September 2024.
Background Facts
[2] The intervening applicants are individual Councillors representing the African
National Congress (“the ANC ”) in the Theewaterskloof Local Municipality. On 19
September 2024, the Democratic Alliance (“the DA") and Councillor Lincoln De
Bruyn, the Executive Mayor of the Theewaterskloof Local Municipality, brought an
urgent application (“the main application ”) in this Court seeking a declaratory relief
from this Court regarding two decisions made by the Council of Theewaterskloof
Local Municipality.
[3] These decisions ("the impugned decisions") were taken during a special
council meeting held on Monday, 2 September 2024. The impugned decisions
involve d the removal of Councillor De Bruyn from his position as Executive Mayor of
the Municipality and the subsequent election of Theunis Zimmerman as th e new
Executive Mayor. In the main application , the DA and Councillor De Bruyn sought an
order that th e impugned decisions be declared unconstitutional, unlawful and invalid
and that they be reviewed and set aside.
[4] The intervening applicants were served with the main application on 5
September 2024. The DA and Councillor De Bruyn asserted in the main application
that out of an abundance of caution, they served the application on all councillors,
including the interve ning applicants, and invited them to intervene as respondents if
they wished. Despite the service of the main application upon them, the intervening
applicants elected not to take up the invitation. Subsequently, the court heard the
main application on 20 September 2024 and gave judgment on 15 November 2024.
Ostensibly, the intervening applicants wilfully chose not to get involved in the matter.
However, the Speaker of the Municipal Council opposed the main application.
[5] After considering the matter, the Court found that the procedure adopted by
the Local Council to remove Councillor De Bruyn was flawed and riddled with
irregularities. The Court found that the Council did not follow the procedure set forth
in the Rules of Order adopted by the Council, which tightly regulates the Council's
powers and proceedings of the Theewaterskloof Municipal Council. The Court
concluded that Councillor De Bruyn and the Municipal Councillors were not afforded
adequate time to consider the motion of no confidence, as s tipulated in section 58 of
the Local Government Municipal Structures Act 117 of 1998.
[6] In addition, t he Court found that it was irrational for the Council to follow a
proce ss that precluded the Councillors and Councillor De Bruyn from fairly and
adequ ately submitting relevant considerations and properly responding to the
allegations against him in the motion of no confidence, calling for his removal. The
procedure set forth by the Speaker did not enable the Council to make a rational
decision regarding the motion of no confidence against Councillor De Bruyn. As a
result, the Court concluded that the decision to remove Councillor De Bruyn from the
position of Executive Mayor was unlawful , and t he Court reviewed and set aside that
decision.
[7] In this application, the intervening applicants contend ed that the urgent nature
of the main application precluded them from adequately consulting with their
respective constituencies and obtaining the requisite mandate to oppose the main
application before t he pronouncement of the judgment on 15 November 2024. They
now seek to intervene in the main application. The intervening applicants asserted
that they have now obtained the mandate and authorisation to oppose the main
application and/or to apply for leave to appeal the judgment. The intervening
applicants further averred that they ha ve a direct and substantial interest in the
matter and wanted to adduce further evidence not placed before the Court when the
main application was heard.
[8] The DA and Counc illor De Bruyn, the respondents in the intervening
application, opposed the applicants' application. The respondents contended that the
main application in which the intervening applicants sought to intervene was served
on them on 5 September 2024. Yet , the intervening applicants waited three months
and five days before launching the present application on 10 December 2024 for an
urgent hearing during the 2024 holiday season and during the court recess on 18
December 2024.
[9] The respondent s asserted that the intervening applicants failed to
demonstrate the requisite urgency. The focus of their efforts has been solely on
whether they should be granted permission to intervene in the main application.
Following that, they intend to pursue an ap plication for leave to appeal the judgment
they seek to contest, as well as to request permission to introduce additional
evidence.
Principal Submissions by the parties
[10] Mr Holland, the applicants’ Counsel, submitted that the main application was
heard on an urgent basis. In the circumstances, the intervening applicants did not
have an adequate opportunity to consult with their constituencies, which they
represent and obta in the necessary mandate from the ANC to oppose the main
application before the judgment was delivered on 15 November 2024. Mr Holland
submitted that the intervening applicants have since obtained the necessary
mandate from their constituencies.
[11] The applicants' Counsel argued that despite not initially opposing the main
application, the intervening applicants are the same Councillors who, on 16 August
2024, tabled the motion of no confidence seeking the removal of Councillor Lincoln
De Bruyn as the interim Executive Mayor of the Municipality and who, on 2
September 2024, voted for the removal of Mr Lincoln De Bruyn at a lawfully
convened and constituted special council meeting. Accordingly, Mr Holland argued
that a valid case exists, providing suffic ient grounds for this Court to grant the
requested relief in the notice of motion.
[12] On the other hand, Mr Sive, Counsel for the respondents, challenged the
urgency of this application. Counsel contended that the urgency associated with this
applicatio n has been self -created . Mr Sive noted that the intervening applicants had
more than two months and one week from 5 September 2024, when they were
served with the main application, until 15 November 2024, when this Court
pronounced its judgment to engage w ith the electorate and their constituencies and
to request leave to intervene in the main application.
[13] Mr Sive asserted that the intervening applicants were invited to intervene in
the main application but elected not to take up this invitation befor e the court granted
the judgment on 15 November 2024. Counsel submitted that the applicants filed this
urgent application three months after the main application was instituted without
explaining their delay. The sole justification offered was that the urgent nature of the
main application had restricted their ability to engage with their constituencies and
secure the necessary mandate to contest the main application prior to the delivery of
the judgment on 15 November 2024.
[14] On the merits of the a pplication, Mr Sive submitted that the intervening
applicants do not seek to intervene in the main application because the order will
affect them, the electorate or their constituents in any way at all. Instead, so the
contention proceeded, their case for intervention is entirely speculative. Beyond
barely asserting that they have a direct and substantial interest in the outcome of the
litigation, Mr Sive submitted that the applicants failed to plead what such interest is,
let alone demonstrate that it exis ts. Counsel implored the court to strike the
application from the roll, alternatively dismiss the application with a punitive cost
order.
Issues in dispute
[15] There are t hree primary issues that arise for determination in this matter. The
first issue is whether the intervening applicants’ application was brought with the
requisite degree of urgency or whether the urgency pleaded by the applicants is self -
created. Secondly, whe ther the applicants should be granted leave to intervene in
the main application. Thirdly, whether this court should grant permission to the
intervening applicants to file an application for leave to appeal the order and
judgment of this court delivered on 15 November 2024.
Applicable Legal Principle s and Discussion
[16] As explained above, this matter was brought on an urgent basis. The
respondents have challenged the urgency with which this application was filed,
asserting that the urgency is entirely and egregiously self -created. In the interest of
thoroughness, I will address th e three disputed issues ad seriatim.
Urgency
[17] The legal principles applicable to the question of urgency are well -established.
Urgency in applications involves mainly the abridgement of times prescribed by the
rules and, secondarily, the departure from established filing and siting times of the
court.1 Rule 6(12) of the Uniform Rules of Court confers courts with a wide discretion
to decide whether an application justifies enrolment on the urgent court roll based on
the facts and circumstances of each case.2 An application is urgent when an
applicant cannot obtain substantial redress in d ue course.3 The degree of departure
from the modes of service and time frame in the Uniform Rules must be
commensurate with the urgency in each case.4
[18] It is common cause that the main application, in which the intervening
applicants seek to participate, was served on them on 6 September 2024. The
intervening applicants chose not to participate in or contest the main application.
Three months thereafter, the intervening applicants brough t this application to
intervene in the main application on an urgent basis. The reasons for urgency
advanced by the intervening applicants are that this matter is by its very nature
urgent as it concerns the exercise by a local authority of its plenary powers in the
public interest. The i ntervening applicants asserted that the urgency they have
highlighted is justified, especially considering that a judgment has already been
pronounced.
1 See Rule 6(12) (a) and (b) of the Uniform Rules.
2 Mogalakwena Local Municipality v Provincial Executive Council, Limpopo [2014] 4 AII 67 (GP) at
para 63; Caledon Street Restaurants CC v D’ Aviera 1998 JDR 0116 (SE) at 8.
3 Dlamini v City Manager of the City of Ekurhuleni Metropolitan Municipality [2023] ZAGPJHC 147 at
para 27.
4 Republikeinse Publikasie ( Edms) Bpk v Afrik aanse Pers Publikasie (edms) Bpk 1972 (1) SA 773 (A)
at 782A -G.
[19] I have great difficulty with the proposition of the intervening applicants. The
respondents insti tuted the main application in this matter on an urgent basis on 6
September 2024. Acting ex abundanti cautela , the respondents served the main
application on all councillors, including the intervening applicants, and invited them to
seek to intervene as re spondents if they so wished. In other words, the intervening
applicants were made aware of the relief sought in the main application .
Nevertheless, they knowingly chose not to respond to the invitation to intervene
before the Court delivered its judgment on 15 November 2024.
[20] Concernedly , the intervening applicants submitted their urgent application to
intervene during the recess period, three months after the launching of the main
application. They provided no plausible explanation for their delay beyond asserting
that the urgent nature of the main application precluded them from adequately
consulting with their constituencies and securing the necessary mandate to contest
the main application prior to the judgment being pronounced on 15 November 2024.
[21] If indeed, upon perusal of the main application, the intervening applicants
needed time to consult with their constituents, in my view, they could and should
have approached this Court and sought such an indulgence so that they could place
the case of thei r constituents before the Court. They failed to do that. Accordingly,
their belated application and the reasons given for their failure to intervene or file a
notice to oppose the main application are so inadequate to be accepted by this
Court.
[22] It is worth noting that the Speaker of the Council opposed the main
application. In his deposition, the Speaker of the Council asserted that his authority
to respond to the application of the respondent s flowed from the Municipality's
system of delegation, alternatively, the provisions of the Municipal Systems Act 32 of
2000. In other words, as members of the Council, the intervening applicants
authorised the Speaker to respond to the main application. Expressed differently, the
intervening applicants were aware of both the main application and the Speaker's
response. They had sufficient time to present the evidence to the court that they
claimed was overlooked in the main application.
[23] Significantly, the i ntervening applicants had more than two months and one
week from 06 September 2024, when they were served with the main application,
until 15 November 2024, when this Court g ave judgment , to consult with their
constituencies and their electorate to seek leave to intervene in the main application.
As correctly pointed out by the respondents, the intervening applicants had ample
time to file their application to intervene. They had more than the normal 15 -day
period prescribed by Rule 6(5)(d)(ii) of the Uniform Rules to file an answering
affidavit. They had sufficient time to fully consult with their electorate and their
constituencies before deciding to seek leave to intervene in the main ap plication.
[24] I must stress that the intervening applicants had to bring their application at
the first available opportunity, and their failure to do so diminishes urgency.5 The
applicants have not sufficiently explained the substantial delay in launching this
application. They brought this application three months after the main application
was served on them. Our courts have more than once made it clear that self -created
urgency ought not to be entertained.6 The assertion that the main applicat ion was
brought on an urgent basis, thereby frustrat ed their ability to contest it, is an
unfounded afterthought that cannot be supported.
[25] The intervening applicants were required by Rule 6(12)(b) of the Uniform
Rules of Court to set forth explicitly in their founding affidavit the circumstances
which they averred rendered this matter urgent and the reasons why they claim that
they would not be afforded substantial redress at a hearing in due course.7 The
intervening applicants present ed two main reasons in their founding affidavit to
support their claim that this application is urgent. They argue d that the matter is
inherently urgent because it involves the exercise of a local authorit y's
comprehensive powers in the public interest. Additionally, they asserted that since a
5 Mhonko’s Security Services CC v City of Cape Town (21132/2018) [2018] ZAWCHC 168 (30
November 2018) at para 13 .
6 South African Social Security Agency v Minister of Social Development 2018 (10) BCLR 1291 (CC)
at para 19; Metbank Limited v Absa Bank Limited (59303/2021) [2022 ] ZAGPJHC 6 (4 January 2022)
at para 10.
7 Luna Meubel Vervaardigers ( Edms) Bpk v Makin and Another (t/a Makin’s Furniture Manufacturers)
1977 (4) SA 135 (W) at 137E -G.
judgment has already been delivered, the level of urgency they cite is warranted. I
disagree with these propositions.
[26] The applicants and the respondents were not taken by surprise when the
judgment was delivered on 15 September 2024. On 8 November 2024, the registrar
of this Court notified the parties that the judgment regarding the main application
would be pronounced on or before 18 November 2024. Conceivably, this notice
came t o their attention as members of the Council which was cited as the first
respondent in the main application . Nevertheless, the intervening applicants did not
request to intervene before the judgment was delivered. The suggestion that since
the pronouncement of the judgment, the degree of urgency relied on by the
applicants is justified is fundamentally flawed and lacks merit.
[27] The m ere fact that an application concerns the exercise of a local authority of
its plenary powers in the public interest does not automatically give rise to an
inherent urgency . The fundamental point is that a matter is urgent because of the
imminence and depth of harm that the applicant will suffer if relief is not given, not
because of the category of the right the applicant asserts.8
[28] Importantly, proceedings that involve the exercise by a local authority of its
plenary powers in the public interest does not automatically render a matter urgent.
To hold otherwise, in my view, would open the floodgates of applications from
organs of Stat e in the urgent court. Considering the preceding discussion, it is
evident that the intervening applicants have not successfully articulated compelling
reasons as to why they would be unable to obtain substantial redress at a hearing in
due course.
[29] In summation, t he intervening applicants have failed to provide a full
explanation, let alone a reasonable explanation, for their substantial delay in
instituting this application . The urgency asserted by the applicants is entirely a self-
8 Volvo Financial Services Southern Africa (Pty) Ltd v Adams Tkolose Trading CC (2023/067290)
[2023] ZAGPJHC 846 (1 August 2023) para 8.
created urgency.9 There is no justification for the intervening applicants’ failure to
bring this application earlier . Accordingly , the applicants’ application must ordinarily
fail due to their decision to wait three months to approach the urgent cou rt and their
incomplete and paltry explanations for the delay.
[30] Ordinarily , the above finding regarding urgency would lead to the applicants ’
application being struck off the roll. However, for the sake of completeness , I will
consider the remaining issues raised by the applicants in their Notice of Motion.
Should the applicants be granted leave to intervene?
[31] The applicants aver that the outcome of the main application or the judgment
delivered by this Court on 15 November 2024 has profound consequences for the
constituencies they represent. To this end, the applicants seek leave to intervene so
that the application for leave to appeal and, more specifically, the grounds raised
therein can be properly ventilated.
[32] The intervening applicants further asserted that it would be in the interest of
justice for this Court to grant them leave to intervene in the main application so that
they can apply for leave to appeal the judgment of this Court. If granted leave to
intervene, the applicants seek to apply for leave to adduce evidence that is pertinent
to a proper adjudication of the main application, which was allegedly not disclosed by
any of the parties to this Court when the judgment was pronounced on the main
application on 15 November 2024.
[33] Rule 12, read with Rule 6(14) of the Uniform Rules, sets out the
circumstances under which a party may apply to intervene in action or application
proceedings. In an application to intervene, an applicant must s atisfy the Court that
he has a direct and substantial interest in the subject matter of the litigation and
could be prejudiced by the judgment of the Court.10 The applicant must further satisfy
the court that the application is made seriously and is not fr ivolous and that the
9 Big Blue Marketing CC v King Sabata Dalindyebo Local Municipality 2017 JDR 0302 (ECM) at para
10; Windsor Hotel (Pty) Ltd v New Windsor Properties (Pty) Ltd 2013 JDR 1989 (ECM) at para 9.
10 Minister of Local Government and Land Tenure and Another v Sizwe Development and Others: In
re Sizwe Development v Flagstap Municip ality 1991 (1) SA 677 (TK) at 679D.
allegations made by the applicant constitute a prima facie case or defence. The
applicant does not need to satisfy the Court that he will succeed in his case or
defence.11
[34] In casu, the applicants seek to intervene notwithstanding that a judgment has
already been delivered. The applicants assert that they want to appeal the judgment.
I must emphasise that t he mere fact that a judgment or final order has already been
issued is not a b ar to leave to intervene being granted if the intervention is sought for
some legitimate process which can be instituted after the issue of the judgment or
final order.12 To intervene in proceedings, a party must have a direct and substantial
interest in t he outcome of the litigation, whether in the court of first instance or on
appeal.13
[35] It is common cause that the Council has a legal interest in the judgment
delivered on 15 November 2024 . This is so because the Theewaterskloof Local
Council is a product of the Constitution. Section 43(c) of the Constitution provides
that the legislative authority of the local sphere of government is vested in the
Municipal Councils, as set out in section 156. In terms of section 151(2) of the
Constitution, the executive and legislative authority of a municipality is vested in its
Municipal Council.
[36] The Theewaterskloof Municipal Council, represented by the various
councillors, including the intervening applicants, took the decision to remo ve
Councillor De Bruyn as an Executive Mayor of the Theewaterskloof Local Municipal
Council. In the judgment, this Court declared that the decision to remove the
Executive Mayor and the subsequent appointment of Councillor Zimmerman was
unconstitutional, u nlawful and invalid.
[37] As correctly pointed out by Mr Sive, the declaratory and review orders granted
by this Court affected the Council’s legal interests in exercising its power s under
11 Mgobozi and Others v The Administrator of Natal 1963 (3) SA 757 (D) at 760G; Ex parte Moosa: In
re Hassim v Harrop Allin 1974 (4) SA 412 (T) at 414B .
12 Minister of Local Government and Land Tenure and Another v Sizwe Development and Others: In
re Sizwe Development v Flagstap Municipality 1991 (1) SA 677 (TK) at 679D.
13 National Director of Public Prosecutions v Zuma 2009 (2) SA 277 (SCA) at para 85.
section 58 of the Local Government: Municipal Structures Act 117 of 1998 (“the
Structures Act”) . Section 58 of the Structures Act provides :
“A municipal council, by resolution may remove its executive mayor or deputy
executive mayor from office. Prior notice of an intention to move a motion for
the removal of the executive mayor or deputy executive mayor must be
given.”
[38] Evidently, the Theewaterskloof Municipal Council had a direct and substantial
interest in the declaratory and review relief granted by this court in favour of th e DA
and Councillor De Bruyn in the main application. This interest stems from the
Council's constitutional authority to govern local government affairs autonomously
and to exercise the municipality's executive and legislative powers.
[39] On the other hand, the individual Councillors do not have any rights
themselves beyond the right conferred on the Council under section 58 of the
Structures Act to remove the Executive Mayor from office. Furthermore, they do not
have any right under the Constitution to govern the local government affa irs of the
local community individually or on their own initiative and exercise the municipality’s
executive and legislative authority. They can only do so corporately as members of
the Municipal Council.
[40] As previously stated, to succeed with their intervention application, the
applicants, as Councillors , were each required to demonstrate that they have a direct
and substantial interest in the outcome of the litigation. The applicants only claim to
have a d irect and substantial interest in the outcome of the litigation and assert that
they represent the interests of the electorate and their own constituencies. However,
they do not specify what that interest is or provide any evidence to show that such an
interest exists. Accordingly, the applicants’ application for leave to intervene in the
main application stands to be dismissed. This leads me to the last issue in dispute.
Should the applicants be granted permission to file an application for leave to
appeal the judgment of this Court delivered on 15 November 2024?
[41] As discussed above, the applicants also seek permission to be granted
permission to apply for leave to appeal the judgment of this Court. The applicants
filed their application for lea ve to appeal without having secured the requisite
permission to intervene. In their individual capacities, the intervening applicants were
not parties to the main application. The applicants can only seek leave to appeal if
they receive permission from thi s Court.
[42] The 15 -day period provided for by Rule 49 (1)(a) of the Uniform Rules for filing
an application for leave to appeal has since expired. The applicant did not file an
application for condonation together with their application for permission to apply for
leave to appeal. It is a well -established principle in our law that the failure to apply for
leave to appeal within the designated timeframe will result in the lapsing of the right
to pursue such an application. The only circumstance under which this right may be
reinstated is through the granting of an ap plication for condonation.14
[43] To this end, I agree with the views expressed by Mr Sive that before
condonation is sought by the applicants and granted by the court for the late lodging
of the application for leave to appeal, permission to file the ap plication for leave to
appeal should not be granted. The applicants did not apply for condonation
regarding their request for leave to appeal. Their submission of the application for
leave to appeal without permission from this court is irrelevant. The app licants
should have filed a condonation application simultaneously with their request for
leave to appeal. As a result, the applicants' request for permission to apply for leave
to appeal must fail.
Order
[44] In the result, th e following order is granted:
44.1 The applicants' application is hereby dismissed. The applicants are
ordered to pay the costs of this application jointly and severally , including the
costs of Counsel on a party and party scale B .
14 Panayiotou v Shoprite Checkers (Pty) Ltd 2016 (3) SA 110 (GJ ) at paras 39 and 61.
____________________________
LEKHULENI JD
JUDGE OF THE HIGH COURT
APPEARANCES
For the App licant s: Adv Holland
Instructed by: Brink Thomas Cassiem Attorneys
For the Respondent s: Adv Sive
Instructed by: Minde Schapiro & Smith Inc