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2024
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[2024] ZALMPPHC 191
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Frecton v University of Limpopo Senate and Others (HCAA31/2024) [2024] ZALMPPHC 191 (27 November 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
(LIMPOPO
DIVISION, POLOKWANE)
CASE
NO: HCAA31/2024
(1)
REPORTABLE: YES/NO
(2)
OF INTEREST TO THE JUDGES: YES/NO
(3)
REVISED: YES/NO
SIGNATURE:
Naude-Odendaal J
DATE:27/11/2024
In
the matter between:
RAMOKGOPA
MODITSA FRECTON
APPELLANT
and
UNIVERSITY
OF LIMPOPO, SENATE
1
st
RESPONDENT
UNIVERSITY
OF LIMPOPO
2
nd
RESPONDENT
REGISTRAR
OF THE UNIVERSITY OF LIMPOPO
3
rd
RESPONDENT
JUDGMENT
NAUDE-ODENDAAL
J:
[1]
This is an appeal against the judgment and order of the High Court
dismissing an application
in terms of
Section 18(3)
of the
Superior Court's Act, 10 of 2013
on 28 June 2024.
[2]
The background facts are succinctly as follows:-
2.1
The Appellant launched an urgent application in terms of Rule 6(12)
of the Uniform Rules
of Court, seeking an order in terms of which the
Senate of the University of Limpopo is ordered to permit him to
register only
one module towards the completion of Bachelor of Laws
(LLB) Degree, instead of ten modules as he in terms of the old
curriculum
only had one module outstanding. The order was granted in
favour of the Appellant on 13 February 2024.
2.2
The University filed an application for leave to appeal the order
that was granted on 13
February 2024. The Appellant then proceeded to
launch an application in terms of
Section 18(1) read with
Section
18(3)
of the
Superior Courts Act, 10 of 2013
, in terms whereof
the Appellant applied that the operation and execution of the
Judgment and Order dated 13 February 2024, be implemented
pending a
decision of the Respondents' application for leave to appeal and in
the event leave to appeal is granted, the outcome
of such appeal.
2.3
The court
a quo
dismissed the application in terms of
Section
18(3)
of the
Superior Courts Act, 10 of 2013
on 28 June 2024 with
no order as to costs. It is this judgment and order that is the
subject of this appeal.
2.4
The Appellant then proceeded to note an appeal in terms of
Section
18(4)
of the
Superior Courts Act, 10 of 2013
against the 28 June
2024 judgment and order. The Appeal is opposed by the Respondents.
[3]
Section 18
of the
Superior Courts Act, 10 of 2013
stipulates
as follows:-
"18.
Suspension of decision pending appeal
(1)
Subject to subsections (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.
(2)
Subject to subsection (3), unless the court under exceptional
circumstances 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 of 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.
(4)
(a)
If a court orders otherwise
, as contemplated in
subsection (1)-
(i)
the court must immediately record its reasons for doing so;
(ii)
the aggrieved party has an automatic right of appeal
to
the next highest court;
(iii)
the court hearing such an appeal must deal with it as a matter of
extreme urgency; and
(iv)
such order will be automatically suspended, pending the outcome of
such appeal.
(b)
'Next highest court', for purposes of paragraph (a)(ii), means-
(i)
a full court of that Division, if the appeal is against a decision of
a single
judge of the Division; or
(ii)
the Supreme Court of Appeal, if the appeal is against a decision of
two judges or
the full court of the Division.
[S 18(4) substituted
by
s. 29
of Act 15 of 2023 with effect from 3 April 2024.]
(5)
For the purposes of subsections (1) and (2), 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." (Own emphasis
added)
[4]
From a plain reading of
Section 18
, it is clear that an order
which is the subject of an appeal is suspended and only if a court
orders otherwise, ie. that the order
be implemented pending the
appeal, does the aggrieved party have an automatic right of appeal.
[5]
In the present matter, the Court
a quo
did not order otherwise
ie. that the order be implemented but instead dismissed the
application in terms of
Section 18(3)
and the Appellant cannot
be described as an aggrieved party as intended in terms of Section
18(4)(a)(ii), as the Court a quo did
not order otherwise. The
application was dismissed.
[6]
In the result, the Appellant cannot rely on
Section 18(4)(a)(ii)
of the
Superior Courts Act
and
an automatic right of appeal. In
this court's view, the Appellant misinterpreted
Section 18(4)
when it approached this court on the basis that he has an automatic
right of appeal, which in the circumstances he does not have.
In the
result, the appeal stands to be dismissed.
[7]
Even if the above approach and interpretation is incorrect, the
Appellant failed to
show in the Court
a quo
that there exist
exceptional circumstances warranting the operation and execution of
the judgment and order pending the outcome
of the appeal.
[8]
Furthermore, the Appellant also failed to prove on a balance of
probabilities that
he will suffer irreparable harm if the Court does
not so order and the other party will not suffer irreparable harm if
the Court
so orders. To the contrary, the Appellant has been invited
by the Respondents to come and register and finish his degree, which
the Appellant simply chose not to do, but rather to embark on this
path of litigation.
[9]
The Appellant should simply go and register and finish his degree as
agreed to by
the University and therefore will not suffer any
irreparable harm. This Court cannot find that the Court
a quo
misdirected itself in facts or in law. The Court
a quo
correctly found that the Appellant failed to discharge his onus to
prove on a balance of probabilities, that the Respondents will
not
suffer any irreparable harm if the execution of the order is not
suspended.
[10]
Whether or not exceptional circumstances exist is not a decision
which depends on the exercise
of a judicial discretion - their
existence or otherwise is a matter of fact which the Court must
decide accordingly. In this Court's
view, the Appellant simply
restated already pre-existing circumstances and no exceptional
circumstances. In this Court's view,
the Court
a quo
was
correct in dismissing the application and in the result also on this
score, the appeal stands to be dismissed.
[11]
Accordingly, this Court therefore makes the following order:-
1. The appeal is
dismissed with costs.
M.
NAUDE-ODENDAAL
JUDGE
OF THE HIGH COURT,
LIMPOPO
DIVISION
POLOKWANE
I
AGREE:
K.
PILLAY
ACTING
JUDGE OF THE HIGH COURT,
LIMPOPO
DIVISION
POLOKWANE
I
AGREE:
M.Z.
MAKOTI
ACTING
JUDGE OF THE HIGH COURT,
LIMPOPO
DIVISION,
POLOKWANE
APPEARANCES:
HEARD
ON:
25 OCTOBER 2024
JUDGMENT
DELIVERED ON: 27 NOVEMBER 2024
For
the Appellant:
Ramakgopa Moditsa Frecton
(In person)
Rams.mod07@gmail.com
For
the Respondents: Adv. J.D.
Mphahlele
Instructed
by:
Dikgati Mphahlele Attorneys Inc.,
Polokwane
admin@dmainc.co.za