2
In re:
Case Number: 24 -136466
ERF 784 ROBINDALE FIVE (PTY) LIMITED & OTHERS Applicants
vs
CITY OF JOHANNESBURG METROPOLITAN MUNICIPALITY & ANOTHER Respondents
and
Case Number: 23 -077080
In the matter between:
ORDICODE (PTY) LTD Applicant
vs
CITY OF JOHANNESBURG Respondent
and
Case Number: 2 0-15428
HYDE PARK GARDENS (PTY) LTD t/a SHELL HYDE PARK GARDENS Applicant
vs
CITY POWER OF JOHANNESBURG SOC LIMITED [“ CoJ] & ANOTHER Respondents
JUDGMENT ON APPL ICATION FOR LEAVE TO APPEAL
3
BADENHORST AJ:
Introduction
1. On 6 January 2025 I handed down judgment in the above three matters .
The following Orders which appear at the end thereof are relevant for the
purposes of the CoJ’s application for leave to appeal in C ase Number:
20-15428 :
“C. In HYDE PARK GARDENS (PTY) LTD // CITY POWER JOHANNESBURG
SOC LIMITED & OTHER Case Number: 20/15428 [No. 9 on the roll] (“the
Hyde Park matter”):
1) The second respondent (City of Johannesburg) is found to be in
contempt of paragraph 2 of the Order made by the honourable Justice Yacoob on 8 July 2020 under case number 2020/15428 [“the Yacoob Order”];
2) The questions of:
i. the appropriate sanction for the contempt of the Yacoob Order;
ii. which individuals, if any, should be sanctioned; and
iii. the final determination of case number 2020/15428 (including the
resolution of all the disputes arising in respect of City of
Johannesburg Municipal Account No: 220096837 which are referenced in the Yacoob Order), are referred for the hearing of oral
evidence before me (or another Judge as the DJP may direct) on a date
and at a time to be determined by the Deputy Judge President.
3) Witness statements
i. The evidence shall be that of any witnesses whom the parties or
either of them may elect to call, subject, however, to what is
provided in para. 3.2 hereof.
ii. Neither party shall be entitled to call any witness unless:
a) it has served on the other party at least 15 days before the
date appointed for the hearing (in the case of a witness to be
4
called by the respondents) and at least 10 days before such
date (in the case of a witness to be called by the applicant), a statement wherein the evidence to be given in chief by such
person is set out; or
b) the Court, at the hearing, permits such person to be called
even though no such statement has been so served in respect of his evidence.
4) Either party may subpoena any person to give evidence at the hearing, whether such person has consented to furnish a statement or not.
5) The fact that a party has served a statement in terms of para. 3.2 hereof, or has subpoenaed a witness, shall not oblige such party to call the
witness concerned.
6) Within 30 days of the making of this order, each of the parties shall
make discovery, on oath, of all documents relating to the issues referred to in para. 2 thereof, which are or have at any time been in the possession
or under the control of such part y.
7) Such discovery shall be made in accordance with Rule of Court 35 and
the provisions of that Rule with regard to the inspection and production of documents discovered shall be operative.
8) In the event that the respondents again disconnect the applicants’ electricity supply to Shell Hyde Park, located at 99 Winnie Madikizela Drive, Hyde Park, Johannesburg (“the supply of electricity”), in breach of the Yacoob Order, and thereafter fail to reconnect the supply of electricity
within two hours of receiving a request (by email or telephone call) to do
so, the applicant is hereby authorized to engage an electrician and/or
service provider to reconnect the supply of electricity. The reasonable costs incurred in effecting this reconnection shall be borne by the party or parties responsible for the breach;
9) The incidence of the costs incurred up to now shall be determined after the hearing of oral evidence.
D. Respondents’ attorneys and counsel of record are invited to make
representations to this Court within 30 days of the publication of this order,
demonstrating why they should not be prohibited from charging or recovering any fees from the City of Johannesburg, City Power, or Johannesburg Water for work performed in respect of the matters decided
5
in this judgment in the light of their failures identified herein . If such
representations are not filed in a timely manner, or if they are deemed
unpersuasive, supplementary orders to that effect will be issued.
E. Mr Ngwana, the CoJ’s legal advisor, is invited to make representations to
this Court within 30 days of the publication of this order, providing reasons
why he should not be personally ordered to pay 20% of the costs incurred by
the CoJ and CP in these three matters, arising from his failure to heed the
Deputy Judge President’s warning in paragraph [45] of the decision in Millu
(case number 25039/2021). If such representations are not filed in a timely
manner, or if they are deemed unpersuasive, supplementary orders to that effe ct will be issued.
F. This judgment, as well as the following decisions—similarly critical of the
administration of the City of Johannesburg ,
Ulcombe v City of Johannesburg 18969/2022 (2023 02 01) per Strydom J;
AFHCO Calgro M3 Consortium (Pty) Ltd v City of Johannesburg
Metropolitan Municipality and others 2023 JDR 3337 (GJ) per Benson AJ
(23 August 2023) ;
Millu v City of Johannesburg Metropolitan Municipality and Another
(25039/2021) [2024] ZAGPJHC 419 (18 March 2024) per Sutherland DJP;
Ackerman v City of Johannesburg (2022/9392) [2024] ZAGPJHC 334 (5 April 2024) per Chetty J link;
Millu v City of Johannesburg Metropolitan Municipality and Another (supplemental judgment) (25039/2021) [2024] ZAGPJHC 420 (29 April 2024) per Sutherland DJP;
Afhco Calgo M3 Consortium (Pty) Ltd v City of Johannesburg Metropolitan Municipality and Others (2022/322) [2024] ZAGPJHC 1057 (18 October 2024) per Amm AJ ,
must be brought to the attention of the following officials of the City of
Johannesburg :
a. The Executive Mayor;
b. The City Manager;
c. The Head of Revenue Collection;
6
d. The Chief Legal Advisor;
e. The Chief Executive Officer of City Power;
f. The Chief Executive Officer of Johannesburg Water.
The y are invited, within 30 days, to respond to:
The finding of contempt of court in the Hyde Park matter (refer to
paragraph [9 7]); and
The flaws in the answering affidavits and arguments common to all three
matters (described in paragraphs [1] , [2] and [10 3] – [111 ] of this
judgment).
They are further invited to respon d to the criticism expressed in the six
previous decisions of this court listed above.
Any response, or lack thereof, will be duly considered when determining
an appropriate sanction for contempt, addressing the outstanding order for costs in the Hyde Park matter, and assessing the necessity for further
remedial action at higher levels of the governmental hierarchy.
G. The parties and relevant officials of the City of Johannesburg are directed
to email any representations delivered in terms of paragraphs D - F above to
the Registrar of the court, Mr. L Mabasa, at LMabasa@judiciary.org.za for the consideration of the court , copied to the applicants’ attorneys in the three
matters identified in A to C of this order and the Secretary of the DJP’s Office,
at secretarydjp@judiciary.org.za .”
2. On 27 January 2025 the attorney for the CoJ delivered a Notice of Application for
leave to appeal agains t the orders under C , D, E, F and G of the judgment , repeated
above.
3. On 4 March 2025 well in advance of the hearing of the application for leave to appeal ,
the Registrar notified the parties that the court intends, mero motu to raise the
question whether the Orders in respect of which leave to appeal is applied for
(namely paragraphs C & D, E, F and G of the Order quoted above) are appealable
considering:
7
3.1. In respect of paragraph C 1 (the finding of contempt of court in circumstances
where the penalty for contempt has not yet been determined), in the light of the rule described in Wahlhaus and Others v Additional Magistrate, Johannesburg
and Another 1959 (3) SA 113 (A) at page 120 D/E as “the salutary general rule that
appeals are not entertained piecemeal”; and
3.2. In respect of the balance of the Order (paragraph C2 - 8, a referral to oral evidence
and associated procedural directives; D - E, invitations to make representations;
F, an invitation to senior City Officials to consider and respond to the finding of cont empt and court decisions critical of the City’s administration and G, a
procedural direction concerning communication of any responses made), in the
light of the Zweni Rule (see Zweni v Minister of Law and Order 1993 (1) SA 523 (A) at pages 532J – 533A) re ad with TWK Agriculture Holdings (Pty) Ltd v Hoogveld
Boerderybeleggings (Pty) Ltd and Others 2023 (5) SA 163 (SCA) at paragraphs [21], [22] and [27] .
4. In accordance with the notification, the first question is to be decided is w hether
leave to appeal should (or can) be granted at this stage in the proceedings.
The Zweni test
5. In Zweni v Minister of Law and Order 1993 (1) SA 523 (A) at pages 532J – 533A, the
well -known test for appealability was stated as follows with reference to the Supreme
Court Act of 59 of 1959 :
“A 'judgment or order' is a decision which, as a general principle, has three attributes, first, the decision must be final in effect and not susceptible of alteration
by the Court of first instance; second, it must be definitive of the rights of the parti es;
and, third, it must have the effect of disposing of at least a substantial portion of
the relief claimed in the main proceedings… ”.
6. As appears from this passage, t he Zweni test (as it has become known) is informed
by the qualifying words, “judgment o r order” in the (now) repealed Supreme Court Act
of 59 of 1959. These words do not appear in the Superior Courts Act 10 of 2013.
8
Section 16 of the new Ac t is cast in general terms namely: “an appeal against any
decision of a Division as a court of first instance lies, upon leave having been granted ”
[underlined]
7. This difference in the two Acts sparked a d ebate in the Law Reports about the
continued relevance of the Zweni test and more particularly whether the only
qualifying test for leave to appeal should be “the interests of justice” which is the one
applie d by the Constitutional Court to applications for leave to appeal in that Court .
8. The issue was carefully considered In TWK Agriculture Holdings (Pty) Ltd v Hoogveld
Boerderybeleggings (Pty) Ltd and Others 2023 (5) SA 163 (SCA) . I refer to the following
passages of the decision by Unterhalter AJA (as he then was) :
“[21] Whether the decision of a court is appealable is a matter of great importance,
both for litigants and for the discharge by an appellate court of its institutional
functions. That is why the doctrine of finality has figured so prominently in the
jurisprudence of this court. As a general principle, the High Court should bring finality to the matter before it, in the sense laid down in Zweni. Only then should the matter be capable of being appealed to this court. It allows for the orderly use of the capacity of this court to hear appeals that warrant its atten tion. It prevents
piecemeal appeals that are often costly and delay the resolution of matters before the High Court. It reinforces the duty of the High Court to bring matters to an expeditious, and final, conclusion. And it provides criteria so that litiga nts can
determine, with tolerable certainty, whether a matter is appealable. These are the hallmarks of what the rule of law requires.
[22] I do not consider the Superior Courts Act to have supplanted the primacy of Zweni….
[27] To adopt the interests of justice as the foundational basis upon which this court decides whether to entertain an appeal would put in place a regime that is both unpredictable and open -ended. It would encourage litigants to persuade the
High Courts to grant leave, when they still have work to do, failing which, to invite
this court to hear an appeal under the guidance of a standard of commanding
9
imprecision. That would diminish certainty and enhance dysfunction. It would
also compromise the freedom with which the Constitutional Court selects the matters it hears from this court.”
9. It follows that the Zweni test of finality determines whether the application for leave to appeal qualifies under the Zweni test.
Summary of Paragraphs C – G of the Order :
10. Hyde Park Matter Proceedings (paragraph C of the Order ):
10.1. The City of Johannesburg is found to be in contempt for violating the
Yacoob Order.
10.2. Three key issues (arising from that finding ) are referred for oral evidence:
the sanction for contempt, which individuals (if any) to sanction, and final ly
resolution of the broader case in that matter (including disputes remaining
over the municipal account).
10.3. Procedures are put in place for witness evidence, document discovery,
and handling electricity supply breaches, including cost allocation for reconnection , if required in the interim .
11. Representation by Respondents’ Attorneys and Counsel (paragraph D of the
Order ):
11.1. Attorneys and counsel are invited within 30 days to explain why they should not
be barred from charging/recovering fees for work done on the matter.
11.2. Failure to timely file persuasive representations may lead to supplementary orders prohibiting fee recovery.
12. Representation by the City’s Legal Advisor (Mr. Ngwana) [paragraph E of the Order] :
12.1. Mr. Ngwana must, within 30 days, provide reasons why he should not be personally liable for 20% of the costs incurred, due to his earlier failure to heed a prior warning.
10
12.2. Lack of a timely or persuasive response may result in orders imposing that cost
share on him.
13. Notification of Related Decisions of the courts in other matters raising similar
concerns as those expressed by this court [paragraph F of the Order]:
13.1. A series of related judgments critical of the City’s administration are listed.
13.2. These decisions, along with the finding of contempt and identified flaws in affidavits/arguments, must be brought to the attention of several key city officials.
13.3. The officials are invited to respond thereto within 30 days.
13.4. It is indicated that any response, or lack thereof, will be duly considered when
determining an appropriate sanction for contempt, addressing the
outstanding order for costs in the Hyde Park matter, and assessing the necessity for further remedial action at higher levels of the governmental hierarchy.
13.5. Communication of Representations [paragraph G of the Order]:
All parties and the designated City officials must email their representations to
the court Registrar and copy the applicants’ attorneys and the DJP’s Secretary,
ensuring the court receives all input for further consideration.
Only the finding of contempt satisfies the Zweni test
14. The finding of contempt [paragraph C 1 of the Order] unquestionably meets all three
criteria of the Zweni test for a “judgment or order” .
15. In contrast, the rest of the Orders [C 2 – 9, D , E, F and G] ( referral to evidence to
determine sanctions and outstanding issues on papers in Hyde Park Gardens matter ,
fee representations, cost allocation, and further remedial measures in future ) are all
subject to pending oral hearings and additional representations invited by the Court .
11
16. None of the m satisfies the Zweni test of finality and accordingly the application for
leave to appeal in relation thereto is impermissible and deficient.
Reasonable prospects of success: contempt of court
17. Has the applicant established a reasonable prospect that another Court would come
to a different finding ( i.e. that no contempt is established on the papers in the Hyde
Park matter .) And is so, is it appropriate for leave to appeal to be granted at this stage
when a number of related matters have not yet been resolved?
18. I have carefully reconsidered paragraphs [80] to [97] of the Judgment, especially
paragraphs [ 94] – [97] where the question of contempt and CoJ’s defences are
analysed and determined. I am unpersuaded that another Court would take a
different view. There is accordingly no reasonable prospect s of success on appeal.
19. I mention en passant that even if there was a reasonable prospect of success on
appeal of the contempt finding, mindful of general rule that appeals are not
entertained piecemeal , I would not at this point have granted leave to appeal. I
appreciate that the finding made against the applicant is for civil (not criminal) contempt which means that Section 316 of the Criminal Procedure Act does not
apply, which lays down as a general rule
1 that what are alleged to be wrong decisions
made in the course of a criminal trial, are only capable of correction by way of appeal
or review after the trial has ended , in other wor ds not before the trial has run its course
unless there is a compelling reason justifying it. Although not applicable, the principle
informing Section 316 is equally applicable in this matter and strengthens the avoidance of a piecemeal procedure as envisaged by the applicant.
20. It follows that the application for leave to appeal fails the jurisdictional requirement of the Zweni test in part and fails, regarding the finding of contempt in the Hyde Park
Gardens matter, to satisfy the test of reasonable prospect s of success on appeal. It
would in any event have been inappropriate, in my view, to cause a piecemeal
process at this stage where the “trial” has not yet been concluded. In the case of the
1 S v Zuma and Another 2022 JDR 0493 (KZP) paragraph [37].