IN THE HIGH COURT OF SOUTH AFRICA
[EASTERN CAPE DIVISION – MAKHANDA]
CASE NO.: CA112/2024
In the matter between: -
THANDEKILE THEMBA MNYIMBA APPELLANT
and
BONGIWE MASHALABA 1ST RESPONDENT
SANGO DABLATHI 2ND RESPONDENT
ZOLISWA NYEMBEZI 3RD RESPONDENT
MONGEZI MABECE 4TH RESPONDENT
NOXOLO FLORENCE XEGO 5TH RESPONDENT
ZOLANI MACUBA 6TH RESPONDENT
THE MEMBER OF THE EXECUTIVE COUNCIL
FOR CO -OPERATIVE GOVERNANCE &
TRADITIONAL AFFAIRS, PROVINCE OF THE
EASTERN CAPE 7TH RESPONDENT
THE EXECUTIVE MAYOR OF THE AMATHOLE
DISTRICT MUNICIPALITY 8TH RESPONDENT
THE MUNICIPAL COUNCIL OF THE AMATHOLE
DISTRICT MUNICIPALITY 9TH RESPONDENT
THE PERSONS LISTED ON ANNEXURE
“A” TO THE NOTICE OF MOTION FURTHER RESPONDENTS
AMATHOLE DISTRICT MUNICIPALITY INTERVENING RESPONDENT
APPEAL JUDGMENT
ROBERSON J:
Introduction
[1] The appellant was appointed as the municipal manager of the intervening
respondent, the Amathole District Municipality (the ADM), at a special council
meeting held on 16 May 2022. This appointment was for a second five -year term as
municipal manager. The first to sixth respondents, and a further 118 applicants,
employees of the ADM (the ADM employees), brought an application to review and
set aside the appella nt’s appointment, and to set aside the contract of employment
concluded between the appellant and the ADM. The respondents in the review
application included the appellant, the ADM, the Member of the Executive Council for
Co-operative Governance and Tradit ional Affairs, Eastern Cape Province, the
executive mayor of the ADM and the ADM’s municipal council. The grounds of
review will be dealt with later in this judgment. On 28 June 2022 the relief claimed
was granted by the East London Circuit Court Local D ivision. No notice of
opposition to the review application had been served or filed, and there was no
appearance by any of the respondents.
[2] On 30 June 2022 the appellant and the ADM launched an application, part A
of which was to stay the implementat ion of the court’s order, and Part B of which was
for rescission of the order. On 12 July 2022 an order was made by agreement
recording that the ADM and the appellant would not pursue Part A, the South African
Municipal Workers Union (SAMWU) was granted l eave to intervene, time frames
were set for the filing of affidavits and heads of argument in part B, and the
rescission application was to be heard on 11 August 2022. Part B was eventually
heard by Smith J (as he then was) on 23 November 2023. By this t ime the ADM had
withdrawn its participation in the application for rescission (on 7 November 2022)
and was now an intervening respondent. In addition, a new municipal manager, Mr
Bhekisisa Mthembu, had been appointed (on 16 March 2023). On 20 February 20 24
Smith J dismissed the application for rescission with costs. (Unreported judgment,
case number EL 841/2022.) This appeal is against this decision, with the leave of
Smith J.
Rule 42 (1) (a) – judgment or order erroneously granted
[3] Although the ap plication for rescission was purportedly brought in terms of
Uniform Rule 32 (1) (b), the common law or Uniform Rule 42 (1) (a), it is apparent
from Smith J’s judgment that the application crystalised into one in terms of rule 42
(1) (a), which provides:
“42. Variation and rescission of orders
(1) The court may, in addition to any other powers it may have, mero motu or
upon the application of any party affected, rescind or vary:
(a) An order or judgment erroneously sought or erroneously granted
in the a bsence of any party affected thereby;”
[4] It is apposite to refer at this stage to the judgment of the Constitutional Court
in Zuma v Secretary of the Judicial Commission of Enquiry into Allegations of State
Capture, Corruption and Fraud in the Public Se ctor Including Organs of State and
Others 2021 (11) BCLR 1263 (CC), where the following was stated at paragraph [53],
one of the paragraphs in the judgment under the sub -heading “Rescission in terms of
rule 42 of the Uniform Rules of Court” (footnotes omit ted):
“It should be pointed out that once an applicant has met the requirements for
rescission, a court is merely endowed with a discretion to rescind its order.
The precise wording of rule 42, after all, postulates that a court “may”, not
“must”, rescin d or vary its order – the rule is merely an “empowering section
and does not compel the court” to set aside or rescind anything. This
discretion must be exercised judicially.”1
[5] Smith J found that the appellant had met the requirements of rule 42 (1) (a), in
that the order had been erroneousl y granted in the absence of the appellant, but
exercised his discretion against the granting of rescission. The core of this appeal is
whether or not Smith J exercised his discretion properly.
[6] The appellant and the ADM employees were ad idem that the order had been
erroneously granted but the ADM did not agree. It is necessary therefore to consider
the circumstances in which the order was granted and Smith J’s reasoning in finding
that the requirements of rule 42 (1) (a) were met.
[7] In Naidoo and Another v Matlala NO and Others2012 (1) SA 143 (GNP) the
following was stated at paragraph [6]:
“In general terms a judgment is erroneously granted if there existed at the
time of its issue a fact of which the judge was unaware, which would have
precluded the granting of the judgment and which would have induced the
judge, if aware of it, not to grant the judgment ……..”
And in Occupiers, Berea v De Wet NO and Another 2017 (5) SA 346 (CC) at
paragraph [22] it was stated that:
“An order is erroneously gran ted where there was no procedural entitlement
to it.”
1 With regard to the discre tion given to a court in the rule, see also Obiang v Janse van Rensburg and Others
[2025] ZASCA 30 (31 March 2025) at paragraph [16].
[8] The review application was brought in terms of rule 53 which provides:
“(1) Save where any law otherwise provides, all proceedings to bring under
review the decision or proceedings of any inferior court and of any tribunal,
board or officer performing judicial, quasi -judicial or administrative functions
shall be by way of noti ce of motion directed and delivered by the party
seeking to review such decision or proceedings to the magistrate, presiding
officer or chairperson of the court, tribunal or board or to the officer, as the
case may be, and to all other parties affected —
(a) calling upon such persons to show cause why such decision or
proceedings should not be reviewed and corrected or set aside, and
(b) calling upon the magistrate, presiding officer, chairperson or
officer, as the case may be, to despatch, within 15 days after receipt of
the notice of motion, to the registrar the record of such proceedings
sought to be corrected or set aside, together with such reasons as the
magistrate, presiding officer, chairperson or officer, as the case may be
is by law required or d esires to give or make, and to notify the applicant
that such magistrate, presiding officer, chairperson or officer, as the
case may be has done so.
(2) The notice of motion shall set out the decision or proceedings sought to
be reviewed and shall be supp orted by affidavit setting out the grounds and
the facts and circumstances upon which applicant relies to have the decision
or proceedings set aside or corrected.
(3) The registrar shall make available to the applicant the record
despatched as aforesaid u pon such terms as the registrar thinks appropriate
to ensure its safety, and the applicant shall thereupon cause copies of such
portions of the record as may be necessary for the purposes of the review to
be made and shall furnish the registrar with two co pies and each of the other
parties with one copy thereof, in each case certified by the applicant as true
copies. The costs of transcription, if any, shall be borne by the applicant and
shall be costs in the cause.
(4) The applicant may within 10 days aft er the registrar has made the
record available to the applicant, by delivery of a notice and accompanying
affidavit, amend, add to or vary the terms of such applicant’s notice of motion
and supplement the supporting affidavit.
(5) Should the presiding off icer, chairperson or officer, as the case may be,
or any party affected desire to oppose the granting of the order prayed in the
notice of motion, such presiding officer, chairperson or officer, as the case
may be, or such party shall —
(a) within 15 days after receipt of the notice of motion or any
amendment thereof deliver notice to the applicant that such presiding
officer, chairperson or officer, as the case may be, or such party
intends so to oppose and shall in such notice appoint an address within
25 kilometres of the office of the registrar and an electronic mail
address, where available, at either of which addresses such presiding
officer, chairperson or officer, as the case may be, or such party will
accept notice and service of all process in suc h proceedings, as well as
a postal or facsimile addresses where available: and
(b) within 30 days after the expiry of the time referred to in subrule
(4) hereof, deliver any affidavits such presiding officer, chairperson or
officer, as the case may be, or such party may desire in answer to the
allegations made by the applicant.
(6) The applicant shall have the rights and obligations in regard to replying
affidavits set out in rule 6.
(7) The provisions of rule 6 as to set down of applications shall mutat is
mutandis apply to the set down of review proceedings.”
[9] The review application was issued on 27 May 2022. In their notice of motion,
the ADM employees called upon the ADM and the ADM Council to dispatch the
record of decision, in terms of rule 53 ( 1) (b). They also referred in their notice of
motion to their right, after receipt of the record of decision, to amend their notice of
motion and deliver a supplementary affidavit. They further gave notice that if no
notice of intention to oppose was giv en within the time period stipulated in the notice
of motion, the application would be made on 28 June 2022. As already mentioned,
the review application was moved and granted on 28 June 2022.
[10] The record of decision was delivered on 29 June 2022. As Smith J stated in
his judgment, the time for the filing of a notice to oppose would have started to run
from the date of the filing of an amended notice of motion and a supplementary
affidavit. The respondents thus had fifteen days after that date to deliver a notice of
intention to oppose, which would have given them until 4 August 2022 to do so.
Smith J concluded that the ADM employees were not procedurally entitled to the
order granted on 28 Jun e 2022 because the time for filing an intention to oppose had
not yet lapsed. This conclusion cannot in my view be faulted and is supported in any
event by authority. For example, in Fizik Investments (Pty) Ltd t/a Umkhombe
Security Services v Nelson Man dela Metropolitan University 2009 (5) SA 441
(SECLD) Jones J stated at paragraph [7.1]:
“It is only after the applicant has received the record that it can amplify the
notice of motion and affidavits in the light of its contents, and only then is it
requi red to formulate its allegations and its relief in final terms. Only
thereafter is the respondent called upon to give notice of intention to defend in
terms of rule 53 (5).”
[11] It was submitted on behalf of the ADM that the proper course would have
been for the appellant to appear at court on 28 June 2022 and demonstrate that the
matter had been set down prematurely. He had, so it was submitted, been given
notice that if he took no steps to oppose, the matter would be called on 28 June
2022. (A notice of intention to oppose on behalf of the appellant and the ADM had
been prepared but not filed and served.) It may well have assisted the appellant to
have appeared at court on 28 June 2022, but the fact that he (and at that time the
ADM) did not appear d oes not undermine the clear time limits prescribed in the rule
and the authorities such as Fizik (supra).
[12] Smith J was therefore correct in finding that the requirements of rule 42 (1) (a)
had been met.
Application for condonation for the late filing of supplementary volume 9 in the
appeal record
[13] Shortly prior to this appeal being heard, the appellant brought an application
for condonation for the late filing of a supplementary volume which contained two
affidavits which had not been included in the appeal record. One was the appellant’s
replying affidavit in the rescission application and the other was the ADM employees’
affidavit in the application by the ADM to be joined in the rescission application as a
respondent. This omission was pointe d out by the ADM employees in their heads of
argument filed prior to 18 November 2024. The appeal was originally to be heard on
that date but could not proceed owing to the recusal of one of the appeal panel.
According to the appellant’s founding affidav it the omission of his replying affidavit
was an error on the part of his attorney. The appellant did not refer to the omission
of the ADM employees’ affidavit. The application for condonation was opposed by
the ADM employees on the grounds that the expl anation for the delay in filing the
supplementary volume was unsatisfactory and there was no explanation relating to
the ADM employees’ affidavit which had also been omitted.
[14] In my view, despite the lateness of the application, there is no good rea son to
refuse condonation. The explanation for the omission of the replying affidavit was
acceptable. The other omitted affidavit was that of the ADM employees themselves
of which they were obviously aware. The omission of the affidavits did not cause
any substantial inconvenience to this court or the other parties, who were already in
possession of the affidavits and aware of their contents.
Application to dispense with security for costs
[15] In the same notice of motion the appellant prayed for an order dispensing with
security in terms of rule 49. The non -provision of security for costs was also raised
in the ADM employees’ heads of argument filed prior to 18 November 2024.
[16] Rule 49 (13) provides:
“(13) (a) Unless the respondent waives his o r her right to security or the court
in granting leave to appeal or subsequently on application to it, has released
the appellant wholly or partially from that obligation, the appellant shall, before
lodging copies of the record on appeal with the registra r, enter into good and
sufficient security for the respondent’s costs of appeal.
(b) In the event of failure by the parties to agree on the amount of security, the
registrar shall fix the amount and the appellant shall enter into security in the
amount so fixed or such percentage thereof as the court has determined, as
the case may be.”
[17] In his founding affidavit the appellant referred to a costs award made in his
favour against the ADM employees in an interlocutory application for condonation for
the late filing of the ADM’s answering affidavit in the rescission application. His bill of
costs in the total sum of R260 000.00 has not yet been taxed. He also referred to an
agreement between him and the ADM, that R100 000.00 for security for costs would
be deducted from a costs award in his favour against the ADM, arising from another
interlocutory application.
[18] The appellant stated that the default order reviewing and setting aside his
appointment as municipal manager had caused financial prejudice to him and his
family. He has placed both his properties on the market for sale and also has to sell
his two motor vehicles. He has received no income since the default order and the
legal costs have increased exponentially. He maintained that to provide security
would be unjust in the circumstances.
[19] The appellant further referred to a request for comment by th e Rules Board
for Courts of Law, Republic of South Africa, with regard to proposed amendments to
rule 49 (13), on the basis that the current rule may be in conflict with s 34 of the
Constitution. The draft amendments contain two options. The first is, an d I
summarise, that no party shall be required to provide security for the costs of an
appeal, with the provision that a respondent may apply to the court granting leave to
appeal or to the court of appeal upon good cause, for the provision by the appellan t
of security for costs. The second option is to the effect that a respondent shall upon
good cause apply to the court granting leave to appeal or to the court of appeal, for
security for costs to be provided by the appellant.
[20] The point was taken by the ADM employees that this court does not have
jurisdiction to dispense with security, such jurisdiction resting with the court which
granted leave to appeal, as provided for in rule 49 (13) (a). In support of this stance,
Mr Rorke, counsel for the ADM employees, relied on the full court judgment in TR
Eagle Air (Pty) Ltd v RW Thompson [2020] ZAGPPHC 801 (13 November 2020),
where leave to appeal had been granted by the court a quo. At paragraph [18] it was
stated that:
“The rule envisages an instance w here the court granting leave to appeal may
release the appellant wholly or partially from giving security.”
[21] Mr Rorke further relied on Strouthos v Shear 2003 (4) SA 137 (T), a matter
where leave to appeal had been granted on petition to the Supreme Court of Appeal.
At 140G it was stated that:
“Here it is provided that the Court in granting leave to appeal ‘or subsequently
on application to it….’ (as opposed to the Court to which appeal is made , or
the Court hearing the appeal ) is the Court designated to order the release of
the appellant from his or her obligations to lodge security.”
[22] On the other hand, in Allem Inc v Baard In re: Baard v Allem Incorporated
[2022] 1 All SA 680 (GJ) the view was expressed that where leave to appeal is
granted by the Supreme Court of Appeal, rule 49 (13) does not find application (at
paragraph [61]).
[23] There was some debate during argument as to whether or not the court
envisaged in rule 49(13) (a), namely the court which may release an appellant from
providing security, should be restricted to the individual judge of the division who
granted leave, or could include a full court of the same division, hearing the appeal.
[24] In Malomini Strategists (Pty) Ltd and Another v Amanda [2022] ZAGPPHC
670 (15 September 2022) the following was said at paragraph [24]:
“In my view, the answer lies in the wording of Rule 49(13): the present appeal
is sui generis in that no leave to appeal is required and therefore there is no
court a quo that can exempt that appellant from furnishing security. However,
Rule 49(13) does not confine the exemption from security to the court granting
Leave to Appeal as it provides that a court “ subsequently an application to it ”
is entitled to release the appellant eit her wholly or in part, from that obligation.
Whilst it is tempting to read these words restrictively, in my view the phrase is
broad enough to encompass that it is not just the court hearing the leave to
appeal that may release the appellant from this obli gation, but any court on
application to it.”
[25] The appellant relied on the judgment in Collatz and Another v Alexander
Forbes Financial Services (Pty) Ltd and Others [2022] ZAGPJHC 93 (10 February
2022). This was a full court appeal against the order of the High Court dismissing an
application under s 30P of the Pensions Funds Act, 1956. The conduct of the
appellants in the course of the litigation, including a disregard of the rules of court
and delays necessitating condonation applications, was stro ngly criticised by the
court. The appellants had not provided security for costs and the respondents
sought an order striking the appeal from the roll with costs. The court declined to do
so, and heard and decided the merits of the appeal. There was no substantive
application to dispense with security, and the question of the full court’s jurisdiction to
make such an order was not raised. Implicit however in the decision to hear the
appeal on the merits, was, in my view, a decision that the failure to f ile security was
condoned. Amongst the reasons given for declining to strike the appeal from the roll
were: striking the appeal from the roll did not determine the merits; the appellants
could seek to resume the appeal and there were strong indications t hat they would
do so; further delays would ensue without the issues between the parties being
resolved; and it was unfair to the respondents who had waited long enough and were
entitled to finality.
[26] In proceeding to hear the merits of the appeal when security had not been
provided, the court relied on the judgment in PFE International Inc (BVI) and Others
v Industrial Development Corporation of South Africa 2013 (1) SA 1 (CC) at
paragraph [30} where the following was stated (footnote omitted):
“Sinc e the rules are made for courts to facilitate the adjudication of cases, the
superior courts enjoy the power to regulate their processes, taking into
account the interests of justice. It is this power that makes every superior
court the master of its own process. It enables a superior court to lay down a
process to be followed in particular cases, even if that process deviates from
what its rules prescribe. Consistent with that power, this Court may in the
interests of justice depart from its own rules.”
[27] In my view it would be in the interests of justice to follow this approach. The
facts in Collatz are in some respects different, but there are factors in this appeal
which I consider to be persuasive. The appellant has brought a substantive
applica tion for the dispensing with security for costs and has demonstrated his poor
financial situation. The jurisdiction of this court to hear the application is the subject
of different views. The proposed amendments by the Rules Board to rule 49 (13)
appear to accept that currently it is only the court granting leave to appeal which can
dispense with security, because the proposed amendments envisage an application,
albeit by the respondent, to the court granting leave or to the court hearing the
appeal. Smi th J has since been appointed to the Supreme Court of Appeal. If the
argument on behalf of the ADM employees is correct, another judge of this division,
sitting alone, would have to hear the application, necessitating a further delay. If that
is the case , this court is in as good, or even better, position to hear the application.
Much time has passed since the application for rescission was launched. There
have been interlocutory applications with accompanying costs. The appeal was
initially to be hear d on 18 November 2024 but did not proceed because of the late
recusal of one of the appeal panel. I assume there were costs implications as a
result. Costs have already been incurred in the enrolling and hearing of the appeal
before this court, which has been fully argued on the merits. As was said in Collatz,
if the appeal were to be struck from the roll with costs because of the failure to
furnish security, such an order will not finally dispose of the dispute between the
parties. The appeal may poten tially be re -enrolled, with the accompanying costs
implications. To strike the matter would not serve the interests of any of the parties.
Finality is in everyone’s interests. The application to dispense with security for costs
must therefore be granted .
[28] The constitutionality of rule 49 (13) was raised in argument on behalf of the
appellant. This issue was not squarely before the court, having only been raised in
the application to dispense with the furnishing of security brought shortly before the
hearing of the appeal.
Mootness
[29] It was submitted on behalf of the ADM employees that the matter was moot
because the ADM had lawfully appointed a new municipal manager and there was
no attack on the lawfulness of that appointment. Reference was made to the
provisions of the Local Government: Municipal Systems Act 32 of 2000 (the
Systems Act), in particular s 54A (1) (a) which provides that the municipal council
must appoint a municipal manager as head of the administration of the municipal
counc il, and s 54A (2) which provides that a person appointed as municipal
manager must have the prescribed skills, expertise, competencies and qualifications.
Reference was made to further statutory provisions which, so it was submitted,
allowed for only one municipal manager. For example s 57 (1) of the Systems Act
provides for the appointment of a municipal manager only in terms of a written
employment contract and subject to a performance agreement. It was consequently
submitted that there can only be on e municipal manager at any given point in time.
Since the municipality had already appointed a new municipal manager, so the
submission went, the appellant could no longer lawfully be its municipal manager.
[30] In Minister of Tourism and Others v Afrif orum NPC and Another 2023 (6)
BCLR 752 (CC) the Constitutional Court stated:
“A case is moot when there is no longer a live dispute or controversy between
the parties which would be practically affected in one way or another by a
court’s decision or which would be resolved by a court’s decision. A case is
also moot when a court’s decision would be of academic interest only.”
[31] In my view the question of mootness should be considered discretely and
objectively and not with regard to the factors which ma y be considered in the
exercise of a court’s discretion to grant or refuse rescission. Despite the default
order setting aside the appellant’s appointment, and leaving aside for the moment
the merits of the review application, there is a live dispute betw een the appellant on
the one hand, and the ADM employees and the ADM on the other. While the point
of mootness is superficially appealing, it must be remembered that it is a rescission
application which is under consideration, brought with the intention t hat the case be
reopened so that the appellant has an opportunity to oppose the review application
and be heard. He should not be barred from doing so, by way of a point of mootness,
because of the appointment of another municipal manager. Such appointme nt does
not negate the live dispute, which is the lawfulness or otherwise of the appellant’s
appointment as municipal manager. In my view, the appointment of a new municipal
manager would be a matter to be considered by the court hearing the review
applic ation. The point of mootness therefore cannot succeed.
The review application
[32] In the ADM employees’ founding affidavit, the appointment of the appellant as
municipal manager was alleged to be unlawful on a number of grounds. It was
alleged that he lacked the general and minimum competency levels required for his
appointment. Reference was made to Regulation 3 of the Local Government
Municipal Regulations on Competency Levels, 2007 which provides, inter alia , that
the accounting officer of a munici pality must be competent in the unit standards
prescribed for financial and supply chain management competency areas. The
regulation provides a list of categories requiring qualifications together with the
corresponding required competency levels. The co mpetency levels for the category
“Financial and Supply Chain Management Competency Area” are expressed in unit
standards. The ADM employees alleged that as at May 2022, the appellant required
further training in order to achieve some of the prescribed uni t standards. These
included cost management information, legislation framework, information systems,
debt management and generally recognised accounting practices.
[33] It was also alleged that prior to the appellant’s first appointment as municipal
mana ger in 2017, the ADM received unqualified audit outcomes for the period
2010/2011 to 2015/2016. After his appointment the ADM received a qualified audit
outcome for the period 2016/2017 and 2017/2018, a disclaimer of opinion in
2018/2019 and an adverse op inion in 2019/2020. In the result, so it was alleged, the
appellant failed during his first term of office to comply with the various statutory and
fiduciary responsibilities as prescribed in the Local Government: Municipal Finance
Management Act 56 of 2 003.
[34] There was a further allegation of misconduct on the part of the appellant, in
that in appointing certain legal practitioners to render legal services to the ADM, he
unlawfully deviated from procurement requirements.
[35] It was further alleged that the appellant’s alleged lack of competency, breach
of statutory responsibilities and misconduct were brought to the attention of the
executive mayor by way of a letter from the ADM employees’ attorneys dated 28
April 2022, after it became known that the appellant was the recommended
candidate. The executive mayor ignored these allegations and they were therefore
not brought to the attention of the ADM council when the decision to appoint the
appellant as municipal manager for a second term was made. A further letter was
addressed to the executive mayor prior to the meeting of 16 May 2022. The
executive mayor refused to table these two letters at that meeting.
[36] The applicants raised a further ground of unlawfulness of the appellant’s
appointment . This ground was contained in an article in the Daily Dispatch
newspaper, which reported that opposition council members had not seen the
interview panel’s report which should have been circulated prior to the meeting. The
report only became available to them after the decision to appoint the appellant had
been taken.
The rescission application
[37] As already mentioned, the appellant and the ADM launched the two -part
application, part A of which was not pursued. The appellant and his attorney, Mr
Lionel Trichardt, deposed to affidavits in support of a rescission of the order. In his
affidavit Mr Tr ichardt stated that the application was brought in terms of rule 31 (2)
(b), the common law, and rule 42 (1) (a). In relation to a rescission application
brought in terms of rule 42 (1) (a), Mr Trichardt stated that the respondents had
failed to disclose to the court which had granted the order sought to be rescinded,
that SAMWU had also brought an application to review and set aside the appellant’s
appointment and that it was opposed and pending. The SAMWU application was, so
it was alleged, brought on b ehalf of its members, and some of the applicants in the
review application were also SAMWU members. The order was therefore, so Mr
Trichardt stated, erroneously granted.
[38] In his affidavit, the appellant stated that he had met the requirements for
appointment as municipal manager and annexed a copy of his CV. He did not
specifically respond to the allegation concerning his failure to achieve the required
number of unit standards for Financial and Supply Chain Management Competency
Areas. With regard to the qualified audits, he stated that during his first tenure he
had inherited various problems. He chose not to deal with the allegation that he
departed from procurement requirement when appointing legal practitioners to
provide services to the ADM, s aying that this issue was the subject matter of High
Court proceedings and thus sub judice . He stated that the Daily Dispatch article was
hearsay.
[39] In their answering affidavit, deposed to by the first respondent, the ADM
employees pointed out that there were two applications brought by SAMWU, the first
of which they had become aware in April 2022. This application, so they had
understood, challenged the process of selection of a new municipal manager. They
had been advised to follow a different pr ocedure from that of SAMWU. The second
SAMWU application sought the review and setting aside of the appellant’s
appointment as municipal manager. The ADM employees only became aware of the
second SAMWU application in July 2022, that is after the default order was granted.
Nothing more need be said in this judgment about the SAMWU applications. They
played no part in Smith J’s finding that the requirements of rule 42 (1) (a) had been
met.
[40] In furtherance of the ground of review that the appellant di d not possess the
requisite competency levels for the position of municipal manager, the ADM
employees annexed a schedule prepared by the ADM in line with National Treasury
requirements. The schedule reflected that of eighteen -unit standards required by
National Treasury, the appellant had achieved twelve, leaving six outstanding. He
had achieved five extra unit standards but these were not aligned to National
Treasury regulations.
[41] The ADM employees persisted in their allegation that the appellant , as
accounting officer, had failed to carry out his statutory and fiduciary obligations, and
that the Council should have taken this into account in its deliberations when the
appellant’s appointment was considered.
[42] The ADM employees also persisted with their allegation of misconduct
concerning the deviation from procurement requirements in appointing certain legal
practitioners to render legal services to ADM. They expressed the view that the
council ought to have investigated the appellant’s condu ct in order to determine his
fitness for appointment.
[43] Mrs Jean Lombard, a Democratic Alliance (DA) councillor in the ADM,
deposed to an affidavit concerning the events which took place at the council
meeting on 16 May 2022. She stated that the agend a provided before the meeting
did not include the appointment of a new municipal manager. (The appellant’s
tenure as municipal manager was due to expire on 31 May 2022.) At the meeting,
the executive mayor raised the appointment of a new municipal manage r, and a
motion to amend the agenda accordingly was proposed by the majority party in the
council, the African National Congress (the ANC). The motion was approved by a
majority vote.
[44] Mrs Lombard further stated that the executive mayor informed the council that
eight candidates had been shortlisted for the post and read out the scores from the
report which had been compiled by the selection committee. At this point only the
executive mayor and the speaker had a copy of the report. The appellant had the
highest score. One of the ANC councillors proposed that the appellant be appointed,
and the majority of the councillors, with the exception of the DA councillors,
approved the motion. Only after the motion was approved, was the report of the
selecti on committee provided to opposition councillors.
[45] Mrs Lombard pointed out that what took place was in contravention of s 30 (5)
(c) of the Local Government: Municipal Structures Act 117 of 1998 (the Structures
Act) which provides:
“Before a munici pal council takes a decision on any of the following matters it
must first require its executive committee or executive mayor, if it has such a
committee or mayor, to submit to it a report and recommendation on the
matter —
(a) ……………….
(b) ……………….
(c) the appointment and conditions of service of the municipal manager
and a head of a department of the municipality.”
[46] Mrs Lombard also referred to non -compliance with regulations 16 and 17 of
the Local Government Regulations on the Appointment and Conditions of
Employment of Senior Managers, 2014. Regulation 16 (1) provides that the
candidates recommended for appointment to the post of a senior manager must
undergo a competency assessment. Regulation 16 (5) provides that the selection
panel must submit a report and recommendation to the municipal council on the
selection process and the suitability of candidates who comp ly with the relevant
competency requirements for the post. Regulation 17 (1) (a) provides that before
making a decision on an appointment of a senior manager, a municipal council must
satisfy itself that the candidate meets the relevant competency require ments.
[47] Mrs Lombard ultimately maintained that the council had failed to satisfy itself
that the appellant had met the competency requirements for the position, that he had
been properly screened, and that the necessary preconditions for the appointme nt
had been met.
[48] An answering affidavit deposed to by the Superintendent General of the
Department of Co -operative Government and Traditional Affairs, Eastern Cape, was
filed on behalf of the seventh respondent. He explained that the seventh respond ent
had not opposed the review application and was content that it be granted. The
deponent submitted that the application for rescission should be dismissed. The
seventh respondent was not represented at the hearing before Smith J, or before
this court when the appeal was heard.
[49] The answering affidavit of the ADM employees was filed three days outside
the time frames which had been agreed. The appellant and the ADM brought an
application in terms of rule 30 to set aside the filing of the answerin g affidavit as an
irregular step. They brought a similar application against the seventh respondent.
The ADM employees then applied for condonation for the late filing of their
answering affidavit. The application was opposed by the ADM and the appellan t. It
was set down for hearing on 11 August 2022. An order dated 10 August 2022 (I
think the date should have been 11 August 2022) recorded that the matter
(presumably the rescission application and the condonation application) was
postponed to a date to be arranged with the Registrar.
[50] On 4 October 2022 an order was made postponing the matter to 27 October
2022 and the ADM, now represented by different attorneys2, was to file its
application for a postponement on or before 11 October 2022. Time frames were
stipulated for the filing of affidavits and heads of argument. On 27 October 2022 a
further order was made in which it was recorded that the ADM withdrew its
application for a postponement, the condonation application was to be heard on 25
November 2022 and the ADM was to pay the wasted costs of 11 August 2022, 4
October 2022, and 27 October 2022.
2 Mr Trichardt’s authority to act for the ADM in the rescission application was disput ed and his mandate was
terminated.
[51] The condonation applica tion was heard on 25 November 2022 and judgment
was delivered on 1 December 2022. Condonation was granted and the ADM
employees were ordered to pay the costs of the application. Leave to appeal against
the costs order was refused and the ADM employees pe titioned the Supreme Court
of Appeal for leave to appeal.
[52] The appellant filed his replying affidavit in the rescission application on 15
December 2022. He denied the allegations in the answering affidavit concerning his
lack of competency levels, th e audit outcomes, and his deviation from procurement
requirements, and said that the ADM employees were seeking to argue the merits of
the review application under the auspices of the issue of a bona fide defence for the
purposes of rescission. In doing s o, so he stated, the ADM employees were seeking
to introduce evidence, including the affidavit of Mrs Lombard, which did not form part
of the review application. He maintained that he had set out facts which constituted
a bona fide defence.
[53] The appe llant applied for a date for the hearing of the rescission application
on 27 March 2023. The date allocated was 25 May 2023. It is not in dispute that the
matter was not heard on that date because the court file had not been provided to
the presiding jud ge timeously.
[54] More affidavits followed. On 26 April 2023 the ADM employees applied for
permission to file a supplementary affidavit containing new facts, which application
was to be heard on 25 May 2023. In this affidavit it was stated that during November
2022 the ADM had begun the recruitment process for the appointment of a municipal
manager. According to the affidavit, the appellant was aware from 4 November 2022
that the recruitment process had begun. In a letter from his attorneys dated 4
November 2022, addressed to the executive mayor, he demanded that the resolution
by the council to advertise the post be rescinded and that the advertisement for the
post be retracted. The ADM declined to do so and ADM’s attorneys wrote to the
appellant’s a ttorneys informing them that the recruitment process would continue.
[55] The appellant’s attorneys wrote to the ADM’s attorneys on 18 November 2022,
noting that there had been an agreement between the parties which obviated the
need for interim relief (p art A of the application) because it was anticipated that the
rescission application would be disposed of expeditiously. The letter further
indicated that the appellant agreed to wait until 25 November 2022 before
proceeding with an application to interdi ct the ADM from filling the post of municipal
manager pending the finalisation of the rescission application. (The writer seems to
have believed that the rescission application was to be heard on 25 November 2022
whereas this was the date for the hearing of the condonation application.)
[56] By letter dated 14 March 2023 the appellant’s attorneys sought an
undertaking from the ADM not to appoint a municipal manager until the finalisation of
the rescission application.
[57] The appellant did not approach the High Court and the current municipal
manager, Mr Mthembu, was appointed on 16 March 2023. Thus, according to the
deponent to the affidavit, there was no live issue between the appellant and the ADM
employees and the rescission application had become m oot.
[58] In this supplementary affidavit the ADM employees specifically gave consent
to the appellant to respond to the allegations contained in the affidavit.
[59] A further supplementary affidavit, deposed to by Mr Mthembu, was filed on 8
November 202 3. By this time the ADM had brought an application to join the
rescission application as a respondent and the affidavit was filed in the event that the
joinder application was granted. Mr Mthembu stated that an ADM councillor and
member of the mayoral co mmittee, Mr Xhanti Mngxaso, was present at the council
meeting of 16 May and confirmed that the meeting was chaotic and conducted with a
preconceived outcome by those in favour of the appointment of the appellant.
Because the council was divided on the ap pointment of the appellant, so it was
stated, a vote should have been taken as provided for in s 30 (3) of the Structures
Act3. No vote was taken and the chairperson effectively pushed through the
appellant’s appointment and signed the resolution. Mr Mthembu also stated that in
terms of standing rules of council, 48 hours’ notice was required to be given to
councillors of an item placed on the agenda of a special council meeting. The
appointment of the appellant as an item on the agenda was only adopted at the
meeting.
[60] Mr Mthembu dealt further with the appellant’s fitness for the post of municipal
manager and referred to a j udgment of the Western Cape High Court, delivered on 1
June 2012, in terms of which the decision of the Oudtshoorn Municipal Council to
appoint the appellant as municipal manager and any contract concluded were
declared to be null and void. Mr Mthembu sai d that the ADM selection committee
did not consider this judgment and there was no indication that it was brought to the
attention of the ADM council.
[61] Mr Mthembu also pointed out that the identity number of the appellant on his
senior certificate di ffered from that on his CV, and this discrepancy was apparently
not considered by the selection committee.
[62] Mr Mngxaso deposed to a confirmatory affidavit.
[63] There was no affidavit by the appellant in response to either of these two
supplementary affidavits.
[64] The ADM’s application to join the rescission application as a respondent was
launched on 8 September 2023. It was initially opposed by the appellant. According
to a timeline schedule annexed to the ADM employees’ heads of argument, th e
appellant withdrew his opposition and the application was granted on 23 November
2023, when the rescission application was heard.
Exercise of discretion
3 This subsection provides that questions before a municipal council other than matters mentioned in s 160 (2)
of the Constitution are decided by a majority of the votes cast, subject to s 34 of the Structures Act which deals
with dissolutions of municipal councils.
[65] In the first footnote to paragraph [53] of Zuma (supra), in relation to the
discretion given to a court in rule 42 (1) (a), the Court referred, inter alia , to Colyn v
Tiger Food Industries Ltd t/a Meadow Feed Mills (Cape) 2003 (6) SA 1 (SCA) at
paragraph [5] where Jones AJA stated:
“It is against this common law background, which imparts finality to judgments
in the interests of certainty, that Rule 42 was introduced. The Rule caters for
mistake. Rescission or variation does not follow automatically upon proof of a
mistake. The Rule gives the Courts a discretion to order it, which must be
exercised judicially.”
[66] For convenience, I reproduce the second footnote to paragraph [53], where it
was stated that the discretion must be exercised judicially:
“Chetty4 id at 761D where the Court held as follows: “broadly speaking, the
exercise of a court’s discretion [is] influenced by considerations of fairness
and justice, having regard to all the facts and circumstances of the particular
case”. One of the most important factors to be taken into account in the
exercise of discretion, so the Court in Chetty found at 760H and 761E, was
whether the applicant has demonstrated “a determined effort to lay his case
before the court and not an intention to ab andon it” for “if it appears that [an
applicant’s] default was wilful or due to gross negligence, the court should not
come to his assistance”. And, as stated in Naidoo v Matlala N.O. 2012 (1) SA
143 (GNP) at para [4], a court will not exercise its discre tion in favour of a
rescission application if undesirable consequences would follow.”
[67] These three quoted extracts attributed to Chetty in the footnote were, with
respect, not contained in the Chetty judgment. The first was contained in the
responden t’s counsel’s submissions which were published together with the
judgment in the report. The submission was made in relation to the exercise of a
court’s discretion in a rescission application brought under the common law, where
4 Chetty v Law Society, Transvaal ,1985 (2) SA 756 (AD).
sufficient cause must be s hown. The application for rescission in Chetty was one
under the common law. The second and third extracts were also contained in
counsel’s submissions. The second related to an application for condonation, and
the third to the requirement of sufficient cause.
[68] It must be accepted however that the Constitutional Court endorsed and
approved these submissions as influencing the exercise of discretion in an
application for rescission in terms of rule 42 (1) (a).
[69] The matter of Naidoo v Matlala referred to in the footnote involved an
application for rescission in terms of s 149 (2) of the Insolvency Act 24 of 1936. In
that matter the court referred to the judgment in Storti v Nugent and Others 2001 (3)
SA 783 (W) at 806D -G where the relevant principles in considering such an
application were stated, the last of which was: “A court will not exercise its discretion
in favour of such an application if undesirable consequences would follow.”
[70] In his judgment, Smith J stated th at the nature of the discretion in a rule 42 (1)
(a) rescission application was explained in paragraph [53] of Zuma . He described
the nature of the discretion as a loose discretion.
[71] In Trencon Construction (Pty) Limited v Industrial Development Corp oration of
South Africa Limited and Another 2015 (5) SA 245 (CC) the following was said
concerning the types of discretion and the extent to which a court of appeal may
interfere with the court a quo’s exercise of discretion, at paragraphs [85] to [87]
(footnotes omitted):
“[85] A discretion in the true sense is found where the lower court has a wide
range of equally permissible options available to it. This type of discretion has
been found by this Court in many instances, including matters of costs,
damages and in the award of a remedy in terms of section 35 of the
Restitution of Land Rights Act. It is “true” in that the lower court has an
election of which option it will apply and any option can never be said to be
wrong as each is entirely permissible .
[86] In contrast, where a court has a discretion in the loose sense, it does
not necessarily have a choice between equally permissible options. Instead,
as described in Knox, a discretion in the loose sense —
“means no more than that the court is entit led to have regard to a
number of disparate and incommensurable features in coming to a
decision.”
[87] This Court has, on many occasions, accepted and applied the
principles enunciated in Knox and Media Workers Association . An appellate
court must heed the standard of interference applicable to either of the
discretions. In the instance of a discretion in the loose sense, an appellate
court is equally capable of determining the matter in the same manner as the
court of first instance and can therefore substitute its own exercise of the
discretion without first having to find that the court of first instance did not act
judicially. However, even where a discretion in the loose sense is conferred
on a lower court, an appellate court’s power to interfere may be curtailed by
broader policy considerations. Therefore, whenever an appellate court
interferes with a discretion in the loose sense, it must be guarded.”
[72] In my view the nature of the discretion as determined in Zuma , is a discretion
in the loose sense. “Considerations of fairness and justice” and “all the facts and
circumstances of the particular case” are in my view “disparate and
incommensurable features”.
[73] In exercising his discretion, Smith J took into acco unt a number of factors.
The relevant portions of his judgment are at paragaphs [26] and [27] as follows
(footnotes omitted):
“[26] The ADM also presented compelling facts to show that the decision to
appoint Mr Mnyimba for another term was fundamentally flawed and unlawful.
It appears that proper procedures were not followed and that the ADM’s
council did not endorse the appointment by formal majority vote, as it was
required to do in terms of the law. Mr Mnyimba was unable to gainsay these
allegations . In Mlokoti v Amathole District Municipality , Pickering J held that
the failure by a municipal council to vote on the appointment of a municipal
manager at a duly constituted council meeting fundamentally tainted the
decision and rendered the appointment invalid. The learned judge relied on
section 160 (3) of the Constitution, which requires a majority of council
members to be present when a vote is taken on any matter and provides that
all questions before the council must be decided by majority vote.
[27] There is therefore compelling and undisputed evidence that Mr
Mnyimba’s appointment for a second term was unlawful. In my view it would
not be in the interests of justice for him to be reinstated as municipal manager
in circumstances where it is una voidable that all his official acts will be tainted
with illegality and invalidity. Furthermore, he will be resuming his official
duties pending the finalization of a review application which, on the available
evidence, will likely result in his appointme nt being declared unlawful. The
situation is further complicated by the fact that the ADM has already
appointed another municipal manager. It is therefore not difficult to conceive
of the debilitating and disruptive effect that his reinstatement would ha ve on
the ADM’s administration. These will be grave and undesirable
consequences that will flow from the rescission of Hartle J’s order. In my view,
these compelling circumstances militate strongly against an exercise of the
courts discretion to rescind the default judgment. I am accordingly of the view
that the interests of justice demand that the rescission application should be
refused.”
[74] Mr Farlam, who appeared for the appellant, submitted that Smith J erred in
having regard to the merits of the review application. He referred to the distinction
between a rule 42 (1) (a) and a common law application for rescission, in particular
what was said in various authorities that sufficient cause is not required to be
established in a rule 42 (1) (a) appl ication. For example, he relied on Ferris and
Another v Firstrand Bank Limited and Another 2014 (3) SA 39 (CC) where Moseneke
ACJ stated at paragraph [13]:
“Mr and Mrs Ferris brought their rescission application in terms of Rule
42(1)(a) or the common law or Rule 31. I deal first with the requirements
under Rule 42(1)(a). Unlike under the common law or Rule 31, an applicant is
not required to show good cause ( including a bona fide defence) in order to
succeed under Rule 42(1)(a). Instead, under this Rule, a court may rescind a
default judgment if it is “erroneously sought or erroneously granted”.
[75] Mr Farlam further relied on the judgment in National Pride Trading 452 (Pty)
Ltd v Media 24 Ltd 2010 (6) SA 587 (ECP) where Alkema J stated as follows at
paragraphs [55] and [56]:
“[55] The matter is now authoritatively settled by the judgment of the SCA in
Lodhi 2 Properties (supra ) where Streicher JA said at 95 F:
“The existence or non -existence of a defence on the merits is an irrelevant
consideration …” (under Rule 42 (1) (a)).
[56] There is, I believe, also a consideration of policy why it is not a
requirement that an applicant has to show a bona fide defenc e under Rule 42
(1) (a), and that is this: Any order or judgment made against a party in his
absence due to an error not attributable to him, is such a profound
intervention in his right to a fair trial and right to be heard, that, for this reason
alone, t he judgment or order should be set aside without further ado.”
[76] Mr Farlam submitted that Zuma and Ferris should be read together and were
not irreconcilable because of the role that the merits play in the respective
requirements for rescission. He ho wever conceded that if earlier judgments were
irreconcilable with Zuma , then they were tacitly overruled by Zuma . He further
conceded that if there were exceptional circumstances it would be futile to grant
rescission. He submitted that the appellant had set out a defence to the grounds of
review as contained in the review application and could not be faulted for the lack of
response to the further affidavits filed by the ADM employees and the ADM. Various
submissions were made as to why there was no res ponse by the appellant to these
further affidavits, including that they had not been formally admitted, that the
appellant was not required to respond, sufficient cause does not have to be
established in a rule 42 (1) (a) application and there were contrad ictory accounts
concerning whether or not a vote was taken at the council meeting of 16 May 2022.
[77] On the question of delay on the part of the appellant, which was a point taken
by the ADM employees, Mr Farlam submitted that the appellant did not dela y in
launching the rescission application, and referred to other factors which contributed
to the delay in the eventual hearing of the application. In relation to this aspect, he
said that the tight time frames for exchanging affidavits and heads of argum ent were
a quid pro quo for not proceeding with part A of the application, as was stated by the
appellant in his replying affidavit in the rescission application. The appellant stated in
this affidavit that the abandonment of part A was pursuant to an agre ement entered
into between the parties regarding the hearing of part B on truncated time frames.
Mr Farlam submitted that this was a factor to be taken into account in the exercise of
the discretion to grant or refuse rescission. The ADM’s conduct in app ointing a new
municipal manager while the rescission application was pending was, so it was
submitted, a further factor to take into account in the exercise of the discretion to
grant or refuse rescission.
[78] On this latter aspect, Mr Rorke submitted th at it may have been understood
that the truncated time frames led to the appellant not pursuing part A of the
application, but that there was never an understanding that no new appointment
would be made pending the finalisation of the rescission applicatio n. If there had
been, it would have been in the correspondence. On the merits of the review
application, Mr Rorke submitted that the appellant’s CV did not demonstrate that he
possessed the requisite minimum competencies for the position of municipal
manager. In relation to the appointment procedure, Mr Rorke referred to the failure
to put relevant information before the council and the evidence that no vote was
taken.
[79] Mr Osborne, who appeared for the ADM, submitted that the discretion
involved was a broad discretion and that the case law prior to Zuma was swept aside
by Zuma . With regard to the merits of the review, Mr Osborne submitted that the
appellant took a conscious decision not to respond to allegations concerning the
lawfulness or otherwis e of his appointment. Mr Osborne emphasised two aspects of
the merits: first, the appellant’s lack of compliance with the requirements for office,
and second, that no vote was taken when the appellant was appointed for a second
term.
[80] The factors t aken into account by Smith J in the exercise of his discretion
must be considered in the light of what was stated in Zuma concerning this exercise.
I should deal firstly with whether or not it was an improper exercise of discretion to
take into account th e merits of the review. As previously stated, various reasons
were given for not responding to the supplementary affidavits of the ADM employees
and the ADM. It must be accepted that they were before Smith J. It appears that
there was no formal oppositi on to their admission and the appellant was not
prevented from filing a response. He was aware of the contents of the affidavits
which were extremely damaging to his opposition to the review application. It is
important to note that Mrs Lombard’s affidav it was in the answering papers in the
rescission application. The respondent had the opportunity to respond to Mrs
Lombard’s allegations in his replying affidavit, but did not do so. In addition, the
ADM employees in their supplementary affidavit specifi cally consented to a response
by the appellant. It is so that the appellant responded to the grounds of review in the
review application and that the supplementary affidavits contained new allegations.
Nonetheless these affidavits were part of the rescis sion papers for consideration by
Smith J and they were left unanswered.
[81] I should deal with the apparently differing accounts of what took place at the
meeting when the appellant was appointed, as contained in Mrs Lombard’s affidavit
on the one hand, and Mr Mthembu’s on the other. It was submitted on behalf of the
ADM employees that they were not irreconcilable. Mrs Lombard stated that the
motion to appoint the appellant was approved by the majority of councillors, but she
did not expressly say that there was a formal vote. Mr Mthembu stated in his
affidavit, relying on Mr Mngxaso’s account which was confirmed, that no vote was
taken and the appointment was pushed through by the chairperson of the meeting.
The minutes of the meeting, which were anne xed to Mr Mthembu’s affidavit, throw
little light on what took place. In my view, on either account, it appears that the
appointment of the appellant was planned to be achieved hurriedly and without the
observation of the required formalities for a lawful appointment procedure. Mrs
Lombard also referred to other material irregularities. The minutes reflect that the
appellant was present at the meeting. It was therefore possible for him to have
stated what happened, if according to him, a lawful procedur e took place.
[82] Prior to Zuma , the distinction between a rule 42 (1) (a) and a common law
application for rescission was recognised, in that sufficient cause, including a bona
fide defence, was not required to be established in the former (subject of c ourse to
the residual discretion). Zuma did not expressly state that this distinction no longer
applied, but the expressions “considerations of fairness and justice” and “all the facts
and circumstances of a particular case” are very broad and overarching and do not
appear to distinguish a rule 42 (1) (a) applicant from a common law applicant when
these considerations are applied in the exercise of the discretion. On the contrary,
the Constitutional Court expressly determined these considerations as apply ing to
the discretion to be exercised in a rule 42 (1) (a) application.
[83] Considerations of fairness and justice cannot be restricted to an applicant and
must extend to other parties. In my view there is no reason why the merits of the
case should be excluded as one of the “facts and circumstances” to be taken into
account. On the available evidence, as Smith J found, the appellant’s opposition to
the review would not be successful. No purpose would be served in re -opening the
case, and the time, res ources and expenses of all concerned, including the court,
would be wasted. An additional consideration in my view is the public interest in
good governance by a local authority. Were rescission to be granted, an unlawfully
appointed and unqualified pers on would potentially be managing a district
municipality and controlling its finances. This would not be in accordance with
fairness and justice and would amount to an “undesirable consequence”.
[84] Insofar as the appointment of Mr Mthembu is concerned, my approach is a
little different from that of Smith J. If for example, in a given case, the prospects of
successfully resisting a review like the present one were good, the fact that a new
municipal manager has been appointed should not on its own be a bar to rescission.
The significance of Mr Mthembu’s appointment as a fact or circumstance to be taken
into account is in my view the appellant’s failure to take steps to interdict the
appointment proce ss. Even if it is accepted that he did not pursue part A of the
application as a quid pro quo for the agreed time frames for the exchange of
affidavits and an early hearing of the rescission application, he was alerted to the
recruitment process of a new municipal manager and indicated in three letters that
he intended to approach the court to halt the process. He took no steps to do so,
despite knowing that an appointment would be made. In this way, he did not
demonstrate “a determined effort to lay his case before the court”, a factor to be
taken into account in the exercise of the discretion. In these circumstances, a
rescission which would result in two municipal managers would cause instability in
the governance of the ADM and most certainly be an u ndesirable consequence.
[85] Delay is a factor which may be taken into account in the exercise of the
discretion, where the requirements of rule 42 (1) (a) have been met. In Eden v Ellis
and Another [2025] 1 All SA 314 (WCC) Rogers J (as he then was) sta ted at
paragraph [65]
“The discretion recognised in the cases is a discretion arising once it has
been shown that an order was 'erroneously granted'. At the very least, delay
must be a factor relevant to the exercise of that discretion, however narrow it
otherwise is.”
Rogers J concluded as follows, at paragraph [66]:
“…………. assuming that the dissolution order was erroneously granted, I
would exercise my discretion against granting rescission, having regard to the
gross delay and the unsatisfactory natu re of Mr Eden's explanations.”
[86] Delay was imputed to the appellant, chiefly because the application for
condonation for the late filing of the ADM employees’ answering affidavit delayed the
hearing of the rescission application, and because he waited for three months before
applying for a further date for the hearing of the application. It is apparent from the
history of this matter recounted above, that other factors contributed to the delay in
the final hearing of the matter. The appellant did act promptly in launching the
application very soon after the default order was granted. Delay on the part of the
appellant is therefore not a significant factor to take into account in the exercise of
the discretion.
[87] Finally, a consideration of the mer its of a defence and the futility or
impracticality of granting rescission in applications where the requirements of rue 42
(1) (a) are met, is not without precedent. Pre -Zuma , in Van der Merwe v Bonaero
Park (Edms) Bpk 1998 (1) SA 697 (T), rescission of a provisional sentence was
refused. The court was of the opinion that there were good grounds for seriously
doubting the viability of the applicant/defendant’s defence to a claim based on an
acknowledgment of debt. Given the facts before the court, it wa s probable that a
court considering the claim for provisional sentence would find in favour of the
plaintiff (at 709D -E). The court found that in the exercise of its discretion in terms of
rule 42 (1), the interests of justice and fairness would not be se rved if the provisional
sentence was set aside (at 709F).
[88] In Nkosi v ABSA Bank Ltd [2023] ZAGPPHC 431 (6 June 2023) judgment had
been erroneously granted against the applicant for payment of monies lent and
advanced, and an order was made declarin g his immovable property executable.
The judgment was erroneously granted because the notice in terms of s 129 of the
National Credit Act 34 of 2005 had been directed to the wrong branch of the post
office. The court considered the fact that this was a d ilatory defence and that the
applicant did not dispute his indebtedness to the respondent or that he was in breach
of the agreements. The court expressed the view that in the exercise of its discretion
the practical effect of a rescission should be consid ered (at paragraph [38]).
Rescission was refused.
[89] It may well happen in a rescission application where the requirements of rule
42 (1) (a) are met, that the merits, if canvassed, might better be left to be considered
in the main application. In the present case however, the merits are so prominently
and decisively in favour of the review succeeding, that a rescission would not be in
the interests of justice.
Conclusion
[90] It follows that there are no grounds for interfering with Smith J’s exerc ise of
his discretion and the appeal cannot succeed.
Costs
[91] The costs of the appeal must follow the result. Counsel were agreed that scale
C should apply. I am also of the view that the costs of the two -fold application for
condonation for the late filing of the supplementary volume and the dispensing of
security for costs should be borne by the appellant. The appellant was alerted to the
omission of the affidavits in the appeal record and the non -provision of security, prior
to the first hearing date of 18 November 2024. The application was issued and
served on 22 January 2025, three court days before the hearing on 27 January 2025.
The opposition to the application for dispensing with security for costs was not
unreasonable. However, I am of the view that the costs should be on scale A.
Order
[92] The following order will issue:
1. The application for condonation for the late filing of volume 9 of
the appeal record, and for the dispensing of security for costs, is
granted.
2. The appellant is to pay the costs of the application on scale A.
3. The appeal is dismissed with costs, including the costs of two
counsel where so employed, on scale C.
________________________________ J.M. ROBERSON
JUDGE OF THE HIGH COURT
I agree
_______________________________
J.W. EKSTEEN
JUDGE OF THE HIGH COURT
I agree
_______________________________
B. R. TOKOTA
JUDGE OF THE HIGH COURT
APPEARANCES:
For the Appellant : Adv. Farlam SC
Instructed by : Wheeldon Rushmere & Cole Inc.
Matthew Fosi Chambers
119 High Street
MAKHANDA
(Ref.: Mr Brody)
For the First to Sixth Respondents: Adv. Rorke SC with Adv. Appels
Instructed by : Wesley Pretorius & Associates
(Ref.: Mr Pretorius/ab/W108)
c/o Netteltons Attorneys
118A High Street
MAKHANDA
For the Intervening Respondent : Adv. Osborne SC with Adv. Gabriel
Instructed by : Y. Tsipa Attorneys
(Ref. A47/CL/2022)
c/o Yokwana Attorneys
10 New Street
MAKHANDA
Matter heard on : 27 January 2025
Judgement delivered on : 10 April 2025