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2024
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[2024] ZAECMHC 93
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Pembeshiya and Others v Kumkani Mhlontlo Local Municipality and Others (4482/2024) [2024] ZAECMHC 93 (26 November 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, MTHATHA)
CASE
NO.: 4482/2024
Reportable:
Yes/No
In
the matter between:
THEMBELANI
PEMBESHIYA
1
st
Applicant
NYANISEKA
MXINWA
2
nd
Applicant
UNATHI
MAYISELA
3
rd
Applicant
VUMILE
THEKWINI
4
th
Applicant
SOMELEZE
ZAZAZA
5
th
Applicant
and
KUMKANI
MHLONTLO LOCAL MUNICIPALITY
1
st
Respondent
THE
MEC FOR COOPERATIVE GOVERNANCE
2
nd
Respondent
AND
TRADITIONAL AFFAIRS, EASTERN CAPE
NANDIPHA
KHANYISILE SIBOBI
3
rd
Respondent
JUDGMENT
MHAMBI
AJ
Introduction
[1]
The Applicants brought a two-part application. Part A seeks an
interim interdict pending
the finalization of part B of the
application.
[2]
In the main, part A challenges the resolution of the 1
st
Respondent, “
the Municipality
”, appointing the 3
rd
Respondent as it's Chief Financial Officer “
CFO
”,
the resolution was taken on 20 March 2024. The other reliefs are
ancillary to this one.
[3]
The application is opposed by the Municipality and the 3
rd
Respondent.
[4]
They both challenge the
locus standi
of the Applicants and
that the Applicants have not made a case for the grant of interim
relief.
[5]
The 1
st
Respondent goes further and says the reliefs
sought in part A, even though are captioned as interim relief, are in
fact suspension
in nature, and that the case has not been made for
suspension order.
[6]
Lastly, the Respondents contend that the matter is not sufficiently
to be heard as
an urgent application.
The
facts of this case
[7]
The Applicants are the residents of Malepelepe Community, Tsolo,
within the jurisdiction
of the Mhlontlo Local Municipality, the 1
st
Respondent.
[8]
The Applicants alleged in the founding papers that on 20 March 2024,
the Council of
the Municipality took a resolution to appoint the 3
rd
Respondent as its CFO, allegedly she scored the highest amongst the
interviewed candidates.
[9]
They now challenge the 3
rd
Respondent’s appointment, alleging that the 3
rd
Respondent was not supposed to have been appointed as she (3
rd
Respondent)
had previously been dismissed by two Municipalities for allegations
amongst others, financial misconduct, fraud, and
corruption.
The Applicants based their case on, amongst others, regulation 18(4)
of the regulations of the Local Government
Municipal Systems Act
[1]
,
“
the
Systems Act
.”
Issues
for determination
[10]
this Court has to determine: -
(i)
Whether the matter is urgent.
(ii)
Whether the Applicants have locus standi to bring this application.
(iii)
Whether the requirements for the grant of interim relief have been
satisfied.
Urgency
[11]
On urgency, the deponent to the founding affidavit has alleged he
learnt about the 3
rd
Respondent’s appointment as CFO of the Municipality on Daily
Dispatch. He alleged to have gathered relevant information
and
consulted with attorneys on 27 September 2024.
[12]
The attorneys wrote a letter to the 2
nd
Respondent, the
2
nd
Respondent replied to the Applicants’ attorneys’
letter by email on 30 September 2024. Between 2 October and 3
rd
October 2024, there has been an exchange of letters between the
Applicants’ attorneys and the office of the 2
nd
Respondent. Applicants then instituted this application on 10 October
2024.
[13]
The founding affidavit does not state with clear particularity why
the matter is urgent, mostly
submitted as the basis of urgency is
that the matter is of public interest and concerns the appointment of
the CFO of the Municipality,
the deponent to the founding affidavit
simply resuscitated the duties of the CFO as endowed in the Municipal
Finance Management
Act 56 of 2003.
[14]
This Court regards that as nothing but conclusory and generalized
averments with no explicit
explanation as to urgency or no
explanation has been proffered as to why this Court should dispense
with ordinary forms and service
provided for in the rules and dispose
of the matter on an urgent basis.
[15]
The authorities are very clear on urgency.
[16]
In
East
Rock Trading 7 (Pty) Ltd and Another v Eagle Valley Granite (Pty) Ltd
and Others
[2]
,
the Court held that a matter is urgent if the Applicant cannot
achieve substantial redress at a hearing in the ordinary course.
[17]
In
Twentieth
Century Fox Film Corporation and Another v Eagle Valley Granite (Pty)
Ltd and Others
[3]
,
the court expressed that when determining whether the matter is
urgent, the court must assume that the Applicant’s case
in the
merits is good.
[18]
In
Luma
Meubel Vervaardiges (Edms)BPK V Makin and Another t/a Makins
Furniture Manufacturers)
[4]
,
the court expressed that litigants shall not constrain the ordinary
time periods, or deviate from the Uniform rules of court,
more than
necessary.
[19]
Further to that, the issue of further a matter should be enrolled as
urgent application is governed
by the provisions of rule 6(12) of the
Uniform Rules. The aforesaid sub-rule allowed the court hearing
urgent applications
to depart or dispense from the ordinary forms and
services provided for in the rules and hear the matter in a manner as
the Court
may direct by directive.
[20]
Rule 6(12) requires the Applicant in an urgent application to set
forth explicitly the circumstances
under which he avers render the
matter urgent and the reasons why he claims that he could not be
afforded substantial redress at
a hearing in due course that must be
contained in an affidavit in support of the urgent application.
[21]
In this matter, the Applicants have failed to set forth explicitly in
the founding affidavit
papers the circumstances that render the
matter urgent and should be heard as such. No reasons are
stated why the Applicant
cannot be afforded substantial redress at a
hearing in due course than an urgent application roll.
[22]
It is a well-established principle of our law that a Court has a duty
to protect itself against
abuse of its processes, in
Nedcorbank
Ltd v Gcilitshana
[5]
,
referring to
Hudson
v Hudson
[6]
,
the court held that: -
“
Ordinarily,
the reasons and motives of a party for instituting legal proceedings
are irrelevant. However (w)hen the Court
finds an attempt made
to use for ulterior purposes machinery devised for a better
administration of justice, it is the duty of
the court to prevent
such abuse”.
[23]
It is trite to mention that the fact that the Applicants seek to have
their dispute resolved
urgently does not render the matter urgent.
Therefore, whether the matter is urgent depends on the relief sought
seen in context
with the facts of the case, as a result, urgency is
determined on a case by case and is context-specific
[7]
.
[24]
The Applicants have not made a case for urgency instead urgency is
pleaded on general, bald arguments
and emotional assertions.
[25]
In the context of the pleaded urgency, no case for urgency is made.
[26]
For the sake of completion, I will also deal with the issue of
locus
standi
of the Applicants and consider whether the case for the
grant of interim relief has been made out.
[27]
The submissions by the Applicant’s Counsel in his heads of
arguments in relation to urgency
do not favour the case made on the
founding papers
Locus
Standi
of
Applicants
[28]
The Applicants are alleged to be the residents of the lower
Malepelepe Community in the district
of Tsolo, within the
jurisdiction of the Municipality. They put reliance on Section
38(d) of the Constitution
[8]
to have locus standi to bring this application.
[29]
Mr Genukile who appeared for the Applicants goes further and submits
that, in terms of Section
5 of the Systems Act, members of the Local
Community are accorded extensive rights and duties with respect to
the governance of
their community including contributing to the
decision-making process and submitting written or oral
recommendations and being
informed of the decisions of the Municipal
Council. This submission, with respect, has no relevance and is not
what the Applicants
stated in their founding papers. In the
founding papers, Applicants rely on Section 38(d) to establish their
locus standi
. They substantiate that they are community
members that fall within the jurisdiction of the Municipality
.
[30]
I will deal with the Applicants’
locus standi
as it is
stated in the papers, not beyond that.
[31]
In this regard Section 38(d) of the Constitution reads: -
“
Anyone
listed in this section has the right to approach the competent court
alleging that a right in the Bill of Rights has been
infringed or
threatened, and the Court may grant appropriate relief, including
declaration or rights. The persons who may
approach a Court
are: (d) anyone acting in the public
interest,”
[32]
The Constitutional Court has given guidance in this regard. In
Lawyers
for Human Rights v Minister of Home Affairs and Others
,
[9]
The court dealt with what needs to be shown in order to establish
whether a person or an entity is acting in the public interest.
[33]
The Court referred to the judgment by O’Regan J in
Ferreira
v Lenin NO, Vryenhoek v Powell NO
[10]
,
where he said: -
“
This
Court will be circumspect in affording applicants’ standing by
way of Section 7 (4) (b) (v) and will require an Applicant
to show he
or she is genuinely acting in public interest. Factors relevant
to determining whether a person is genuinely acting
in public
interest will include considerations such as: whether there is
another reasonable and effective manner in which challenge
can be
brought, the nature of the relief sought, the extent to which it is
of general and prospective application, and the range
of persons or
groups who may be directly or indirectly affected by an order made by
the Court and the opportunity that those persons
or groups have had
to present evidence and argument to the court. These factors
will need to be reconsidered in the light
of the facts and
circumstances of each case.”
[34]
The Court also said: -
“…
(A)
distinction must however be made between the subjective position of
the person or organization claiming to act in the public
interest on
one hand, and whether, it is, objectively speaking, in the public
interest for the particular proceedings to be brought
….”
[35]
In this matter having considered the
locus
standi
of
the Applicants, and the context in which it is pleaded, objectively
considered, the Applicants have made a case for their locus
standi to
bring these proceedings.
The
Requirements for Interim Relief
[36]
The well-known requirements for interim relief have recently been
affirmed in
Democratic
Alliance V Hlophe and Others
[11]
,
to be the following: -
(a)
Prima facie
right
(b)
A reasonable apprehension of irreparable harm
(c)
balance of convenience, and
(d)
no alternative remedy
[37]
In
Eskom
Holdings SOC Ltd v Vaal River Development Association (Pty) Ltd and
Others
[12]
,
the court emphasized that in adjudicating an application for interim
relief, the Court shall exercise discretion resting on substantive
consideration of justice.
[38]
In doing so, the Court shall ensure that the objects, spirit and
purport of the Constitution
are promoted as set out in
OUTA
[13]
.
[39]
It is apposite for me to state that interdict
pendent
lite
is an extraordinary remedy not to be granted lightly. In
United
Democratic Movement and Another v Lebashe Investment Group (Pty) Ltd
and Others
[14]
,
the
Constitutional Court held as follows: -
“
[47]
An interim interdict pending an action is an extraordinary remedy
within the discretion of the Court
[48]
In granting an interdict, the Court must exercise its discretion of
all facts and circumstances.
An interdict is not a remedy for
the past invasion of rights: it is concerned with the present and
future.
[40]
An interdict is appropriate only when future injury is feared.
[41]
It is worth noting what the Court said in
Steam
Development Technologies 96 Degrees (Pty) Ltd v Minister, Department
of Public Works and Infrastructure
[15]
,
the Court held that: -
“
Even
if all these requirements are met, the Court still enjoys an
overriding discretion whether or not to grant the interim interdict.”
Evaluation
of Parties' submissions
[42]
Applicants submitted that the 3
rd
Respondent was appointed
on the basis of an impugned resolution, which is the subject of
review in part of this application. If
she continues her duties as
CFO of the Municipality, the community will suffer.
[43]
The Applicants suggested that the 3
rd
Respondent be put on
suspension until part B is finalized, Mr Genukile submitted that the
glaring evidence cannot be ignored at
the convenience of the 3
rd
Respondent. He insisted on seeking interim relief with costs.
[44]
Mr Madonsela, for the Municipality, pinned his argument in saying the
application has no prospects
of success in part B, therefore interim
relief could not be granted. He submitted that an interdict is
forward-looking and
seeks to prevent future conduct not decisions
already made, a challenge to past decisions lies at the heart of part
B. He submitted
the balance of convenience in favour of the
Municipality and against the Applicants.
[45]
Mr Mngunyana, representing the 3
rd
Respondent, concurred
with Mr. Madonsela’s arguments and contended that the balance
of convenience does not support granting
interim relief. He noted
that the Applicants are seeking a suspension order, which they have
framed as an application for an interdict.
Granting this interim
order would effectively suspend the 3
rd
Respondent without
reviewing the resolution that appointed her as CFO. Additionally, he
argued that the 3
rd
Respondent has a valid contract with
the Municipality, which needs to be challenged under the Labour
Relations Act.
[46]
It is trite that an Applicant for an interim interdict must show that
it is likely to sustain
some irreparable harm irreversible character,
to wit a reasonable apprehension of irreparable harm. That is the
prima facie
right the Applicants right the Applicants need to
prove. The 3
rd
Respondent was appointed as CFO six months
ago, there is no evidence placed before the court that she is
incompetent in the exercise
of her duties as CFO.
[47]
The Applicants have failed to establish irreparable harm satisfactory
enough to grant the interim
interdict, despite Part B.
[48]
Having seriously considered all relevant factors, and the parties'
submissions, this Court has
applied its mind objectively, I am not
convinced that the balance of convenience favours the grant of the
interim order sought.
[49]
In assessing the balance of convenience required, this Court has to
consider the harm to be endured
by the Applicants if the interim
relief is not granted, and the Applicants succeed in part B, compare
that to the harm to be borne
by the 3
rd
Respondent, and
the consequences of suspending her employment, and that of the 1
st
Respondent, to be without CFO during auditing period as informed, and
Part B fails.
[50]
This is one of the clearest cases that, in evaluating the balance of
convenience, granting an
interim interdict will be inappropriate and
cause grave injustice. The rights of the Applicants remain protected
by the pending
review application. Consequently, the
application in terms of part A should fail.
Costs
[51]
I am satisfied that the Applicants are indigent community members
seeking the administration
of justice, whether they have a similar
case or not, is not important. I see no basis to penalize them
with costs.
Order
[52]
In the result, the following order
is issued
1.
The Applicants’ application in terms of Part A is dismissed.
2.
The Applicants’ application in terms of Part B is postponed
sine die
, to a date to be arranged with the Registrar.
3.
There is no order as to costs.
M
MHAMBI
ACTING
JUDGE OF THE HIGH COURT
APPEARANCES:
Counsel
for the Appellant
:
Adv
Genukile
Instructed
by
:
Luyanda
Mdludla Inc.
Mthatha
Counsel
for the 1
st
Respondent :
Adv Madonsela
Instructed
by
: Mvuzo
Notyesi Inc.
Mthatha
Counsel
for the 2
nd
Respondent :
Adv Mngunyana
Instructed
by
: M.
Nzima Attorneys
Mthatha
Heard
on
: 12
November 2024
Judgment
Delivered on
:
26
November 2024
[1]
Act
42 of 2000.
[2]
E
ast
Rock Trading 7 (Pty) Ltd and Another v Eagle Valley Granite (Pty)
Ltd and Others (11/33767) [2011] ZAGPJHC 196 (23 September
2011).
[3]
1982
(3) SA 582 (W).
[4]
1997
(4) SA 135 (W).
[5]
2004
(1) SA 232
(SE) at para 27.
[6]
1927 AD 259.
[7]
EMM
v S.W. ZAPGJHC 710, 15 June 2023.
[8]
Constitution
of the Republic of South Africa, Act 108 of 1996.
[9]
[2004] ZACC 12
;
2004 (4) SA 125
,
2004 (7) BCLR 775
(EC) at paras 14-16.
[10]
1995 ZACC 13
,
1996 (1) SA 984
(CC),
1996 (1) BCLR 1
CC.
[11]
16170/2024,
16771/2024, 1646 3/2024,
2024 ZAWCHC 282
, 27 September 2024 at paras
36 and 37.
[12]
2023
(4) SA 325
(CC) at paras 279 -307.
[13]
National
Treasury and Others v Opposition to Urban Tolling Alliance and
Others,
2012 (6) SA 223
(CC) at para 45.
[14]
2003
(1) SA 353
(CC)
at
paras 47– 48.
[15]
Steam
Development Technologies 96 Degrees Proprietary Limited v Minister:
Department of Public Works & Infrastructure (Reasons
for Interim
Interdict) (4264/2023) [2024] ZAECGHC 20 (16 February 2024)
at
para 8.