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2024
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[2024] ZALMPPHC 187
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Makhado Local Municipality v Makhavhu and Another (Leave to Appeal) (7776/2024) [2024] ZALMPPHC 187 (21 November 2024)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
LIMPOPO DIVISION,
POLOKWANE
CASE
NO:
7776/2024
(1)
REPORTABLE: YES/NO
(2)
OF INTEREST TO THE JUDGES: YES/NO
(3)
REVISED
.
DATE:
21/11/2024
SIGNATURE:
In
the matter between:
MAKHADO
LOCAL MUNICIPALITY
Applicant
and
PAUL
MAKHAVHU
First Respondent
PAULINE
MAKHAVHU
Second Respondent
JUDGMENT
ON APPLICATION FOR LEAVE TO APPEAL
GAISA
AJ
INTRODUCTION
[1]
This is an application for leave to appeal against the
judgment and
orders delivered on 18 September 2024. The Applicant (Makhado Local
Municipality) seeks leave to appeal to the full
court, alternatively
to the Supreme Court of Appeal.
LEGAL
FRAMEWORK
[2]
The test
for leave to appeal is set out in
section 17(1)(a)
of the
Superior
Courts Act 10 of 2013
. As emphasized in MEC for Health, Eastern Cape
v Mkhitha and Another,
[1]
leave
to appeal must not be granted unless there truly is a reasonable
prospect of success.
[3]
An applicant must convince the court on proper grounds
that there is
a reasonable prospect or realistic chance of success on appeal. A
mere possibility of success, an arguable case,
or one that is not
hopeless, is not enough. There must be a sound, rational basis to
conclude that there is a reasonable prospect
of success on appeal.
ANALYSIS
[4]
At the outset, counsel is reminded that an application
for leave to
appeal must focus on the orders made rather than the judgment's
reasoning or style of writing. This principle appears
particularly
relevant given counsel's extensive criticism of the judgment's
reasoning rather than demonstrating why another court
would reach a
different conclusion on the actual orders granted.
[5]
The question before this court is whether there are reasonable
prospects that another court would (not merely might) come to a
different conclusion regarding the orders granted.
[6]
Having considered the grounds raised by the Applicant,
particularly
regarding orders 5 and 6 of the judgment which were not specifically
prayed for in the notice of motion, I find that
there may be
reasonable prospects of success on appeal limited to these specific
orders. These orders directed:
6.1
the review of account consolidation processes;
6.2
leave to approach the court on supplemented papers.
[7]
While the other orders fell within the scope of the relief
sought and
were necessary to give effect to the main relief regarding
electricity disconnection, orders 5 and 6 may have exceeded
what was
specifically prayed for in the notice of motion.
FINDING
[8]
Applying the principle from Mkhitha that there must be
a sound,
rational basis to conclude that there is a reasonable prospect of
success on appeal I find it prudent to:
8.1
grant leave to appeal on the limited grounds relating to orders
5 and
6;
8.2
maintain the other orders which were clearly within the scope
of
relief sought.
[9]
This approach allows appellate scrutiny of whether these
specific
orders exceeded the court's powers while protecting the core relief
granted to the applicants.
ORDER
1.
Leave to appeal is granted to the Full Court
of the Limpopo Division,
limited to orders 5 and 6 of the judgement delivered on 18 September
2024.
2.
The application for leave to appeal against
the remaining orders is
dismissed.
3.
The cost of the appeal is to be cost in the
cause, unless the
applicant does not proceed with the appeal, in which case the cost is
to be paid by the applicant.
N
GAISA
Acting
Judge
High
Court of South Africa
Limpopo
Division, Polokwane
APPEARANCES
FOR THE
APPLICANT
: ADV. U B MAKUYA
INSTRUCTED
BY
: DABISHI, THAMBELENI INC c/o
:
TSHIGOMANA ATTORNEYS
EMAIL
:
mbm@dninc.co.za
:
admin5@dninc.co.za
FOR THE 1
ST
RESPONDENT
: MR T MALULEKE (HEADS OF ARGUMENT BY
ADV. Z D MALULEKE)
:
MULULEKE (T) ATTORNEYS c/o
LEDWABA
M ATTORNEYS
EMAIL
:
reception@m-tattorneys.co.za
:
terrancemaluleke@gmail.com
:
ledwaba@ledwabamattorneys.com
DATE OF
HEARING
:14 November 2024
DATE OF
JUDGEMENT
: 21 November
2024
This
judgment is handed down electronically by circulation to the parties’
representatives by email. The date and time for
hand-down of the
judgment is deemed to be 21 NOVEMBER 2024.
[1]
(1221 of 2015)
[2016] ZASCA 176
(25 November 2016)