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2024
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[2024] ZAGPJHC 1221
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Lesedi Local Municipality v Strydom (2023/107942) [2024] ZAGPJHC 1221 (22 November 2024)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG LOCAL
DIVISION, JOHANNESBURG
CASE NO: 2023-107942
(1)
REPORTABLE: YES / NO
(2)
OF
INTEREST TO OTHER JUDGES: YES/NO
(3)
REVISED.
In the matter between:
LESEDI
LOCAL MUNICIPLITY
APPLICANT
And
LYNNETTE
STRYDOM SYTRYDOM
RESPONDENT
JUDGMENT
MABESELE
J:
The applicant seeks an
order in the following terms:
[1]
1.
Calling upon the magistrate G. Strydom to show cause why the
proceedings in the matter between Lynette Strydom N.O, Izak Jacobs
Du
Plessis Van Den Berg N.O and Lesedi Local municipality, held at
Heidelberg, should not be reviewed, corrected and/or set
aside.
2.
Calling upon the magistrate Strydom to dispatch, within 15 days after
receipt of notice, to the registrar of this court, the
record of the
proceedings with such reasons as he is by law required to give or
make, and to notify the applicant
No
relief was sought against the second and third respondents in this
notice of motion.
[2] In the
founding affidavit the applicant seeks the following order:
1.
The
respondent and/or any interested parties be summoned to give reasons,
if any, why the following findings made by the first respondent
G
Strydom, should not be reviewed, corrected and/or set aside on
account of the fact that the first respondent allowed the application
to be heard urgently where a case of urgency was neither pleaded nor
made by the second and third respondents; where the
application
was brought on ex-parte and addressed to both the clerk of the court
and the applicants, however, only served on the
clerk of the court,
in instances where relief was claimed against the applicant and
a rule nisi was confirmed in its absence.
[3] Counsel for the
respondents raised an issue concerning the nature of the application
with reference to paragraphs 10 and
37 of the founding affidavit. He
argued that the applicant intends to argue the matter as an appeal
which is disguised as a review.
His argument is that confirmation of
rule nisi is a final order which should be appealed against and not
reviewed.
[4] In paragraph 10
of the founding affidavit the applicant refers to a review
application whereas paragraph 37 refers to
an appeal. Paragraph 37
reads:
‘
I
will now deal with the substantive part of the grounds of appeal in
turn, albeit briefly, since it will be argued on behalf of
the
applicant at the hearing of this matter that both the order dated 6
April 2023 and the subsequent confirmation of the rule
nisi on the
return date were predicted on the issue which was no longer live
between the parties and should have been discharged
with costs….’
[5] paragraph 38
reads:
‘
I
am advised that where a appoint of law is apparent on the papers, but
the common approach of the parties proceed on a wrong perception,
a
court
of appeal
[1]
is
not only entitled, but is in fact also obliged,
mera
motu
,
to raise a point of law….’
[6] Counsel for the
applicant was invited to address the court on the discrepancies in
paragraphs 11 and 37, including 38. His response
was that there is an
“an overlap’ between review and appeal in this
application. He acknowledged that there is a difference
between
appeal and review procedures. That said, counsel argued that the
matter should be treated as a review, but has failed to
state why the
applicant considered it as an appeal, too, thus, confused both the
court and respondents.
[7] The other issue that
needs attention, also raised by the respondents, is the relief sought
by the applicant. The applicant,
in its notice of motion, seeks
relief against the magistrate only. In the contrary, the relief
is sought against the respondents
in the founding affidavit. What is
crystal clear is that this application is defective. The applicant
should have not proceeded
with this defective application.
[8] In the result, the
following order is made:
8.1 The application is
dismissed.
8.2 The applicant should
pay costs of the second and third respondents, including costs of
respondent’s Counsel, on Scale
B.
M.M MABESELE
(Judge of the High
Court Gauteng Local Division)
Appearances
On behalf of the
Applicant:
Adv
Mthombeni
Instructed:
Mabunda
Incorporated Attorneys
On behalf of the
Respondent:
Mr
S.Meiklejohn
From:
Meiklejohn
Attorneys
Date of Hearing:
18
November 2024
Date
of Judgment:
22
November 2024
[1]
Emphasis
added