IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION, MTHATHA)
CASE NO.: 4146 /2023
In the matter between:
AB XUMA LOCAL MUNICIPALITY 1ST APPLICANT
THE MUNICIPAL MANAGER, AB XUMA
LOCAL MUNICIPALITY 2ND APPLICANT
and
KUNOGQALA LOCAL RESIDENTS 1ST RESPONDENT
NOWANATHI MXUXUMBA 2ND RESPONDENT
NOJIKILE MAKHAMBA 3RD RESPONDENT
ASAKHE MAKHAMBA 4TH RESPONDENT
NGCAWE NTSHEQANE 5TH RESPONDENT
NOBUTNTI NTSHEQANE 6TH RESPONDENT
LULAMILE TSHEQANE 7TH RESPONDENT
·\\. OJ· SCJ\;
JUDGMENT
ON APPLICATION FOR LEAVE TO APPEAL
ZONO AJ:
Introduction
[1] This is an application for a leave to appeal against the judgment granted and
delivered on 06th February 2025. Application for leave to appeal was delivered
on 25th February 2025. Parties will be referred to as in the application for leave
to appeal. The Municipality and its Manager are the applicants herein. The
respondents herein are Nogqala resid ents.
[2] Section 17(1) (a) of the Superior Courts Act 10 of 2013 provides thus:
“(1) Leave to appeal may only be given where the judge or judges
(a)
(i) the appeal would have a reasonable prospect of success; or
(ii) there is some other compelling reason why the appeal should be
heard, including conflicting judgments on the matter under
consideration; ”
[3] An applicant for leave to appeal mu st convince the court on proper grounds that
there is a reasonable prospect or realistic chance of success on appeal. A mere
possibility of success, an arguable case or one that is not hopeless is not
enough. There must be a sound, rational basis to conclude tha t there is a
reasonable pros pect of success on appeal1.
1 MEC for Health, Eastern Cape v Mkhitha and Another (1221/2025) [2016] ZASCA (25 November
2016) P ara17; Smith v S ( 475/10) [2011] ZASCA 15; 2012(1) SCACR 567(SCA) (15 March 2011) Para
7.
[4] During arg ument, applicants’ Counsel wisely focused his argument o n two
topics, namely:
4.1 First, dispute of facts which allegedly warranted the application of
Plascon -Evans principle2.
4.2 Second, the applicant s argued that the order of this court infringes the
doctrine of separation of powers. The court does not have power to
dictate to the Municipality a s to when and how its duties have to be
performed.
Dispute of facts
[5] Regarding dispute of facts, the applicants argued tha t whilst the respondents
contend that there is nothing that has been done to construct the Nogqala road;
the applicants on the other ha nd argued that 500m metre road had been
constructed approaching from both sides of the Nogqala bridge. With regard to
the construction of the road on both sides of the bridge, the applicant relied on
paragraph 38 and 44 of its answering affidavit which states as follows:
“38. Ad Paragraph 19 thereof
It is denied that the respondents only appointed a contractor after receipt
of the so called statu tory letter. The contractor was appointed on 17th
July 2023 and the statutory letter was only delivered to the Office of the
second respondent on 04th August 2023 as is evidenced by the
endorsement on the last page of annexure “ NM3 ”. Furthermore, the
supply chain and procurement processes take time and the project
specification for the construction of the Nogqala Bridge had already been
published on 14th April 2023.The allegation that “nothing is being done
with the fact that there is no access road ”[sic], is incorrect. Incorporated
in construction of 500 meters of road approached either side of the new
bridge.
2 Plascon Evans Paints Ltd v Van Riebeek Paints (Pty) Ltd 1984(3) SA 623 (A); National Director
of Public Prosecutions v Zuma 2009 (2) SA 277(SCA) Para 26
44. As stated above, incomplete structure left behind by the previous
contractor will be demolished and the construction of an entirely new
bridge is in progress. It is not disputed that access to and from the said
village is currently substandard, but steps have been taken by the first
respond ent and the completion of the bridge and the 500 metres of new
road either of the bridge will provide adequate access to and from the
village. In these circumstances no mandatory or supervisory relief
against the respondent are warranted.”
[6] The context in which the aforesaid allegations were made was the answer to
the allegations of construction of the N ogqala Bridge . These allegations were
answering a complaint about the failure to construct the Nogqala bridge . The
allegations themselves demons trate that the alleged 500 metre road was
constructed in the context of constructing a bridge . It would be inconceivable
that a bridge would be constructed only in the ri ver space or area and beyond
the river n othing would be done. The said new road was built as part of the
Nogqala bridge for which a tender had been issued and appointment been
made.
[7] As Lord Steyn said in Secretary of the State for the Home Department , Ex Parte
Daly3 “In law, context is everything .” This dictum was approved by the Supreme
Court of Appeal .4 The Municipal M anager, Mr K.L Mulaudzi duly appointed in
terms of a letter dated 17th July 2023 Limiculture Rural Empowerment J.V
Lakhiwe General Trading , which appointment was for the construction of
Nogqala Bridge. This appointment took place after Uxhanti Builders and
services JV BPKL Trading Enterprise who was appointed for the construction
of the Nogqala Bridge in terms of the letters dated 30th August 2021 failed to
perform in ter ms of the agreement . No separate independant appointment was
ever made for the construction of the road. The alleged 500 metre road
3 R v Secretary of the State for the Home Department Ex Parte Daly [2001] VKHL26; [2001] 3 ALL
ER 43 (HL) at 447A .
4 Aktiebolaget Hassle and another v Triomed (Pty) Ltd 2003 (1) SA 155 (SCA) Para 1 ; Minister of
Home Affairs and others v Scalabrini Centre, Cape Town and others 2013(6) SA 421 (SCA);
2013(4) ALL SA 571 (SCA) Para 89 .
approaching from both sides of the bridge was constructed as part of the bridge.
It is reiterated that it was in the context of constructing the bridge that the
alleged 50 0 meter approaching from both sides of the road was constructed.
[8] Even if I am wrong with regard to the aforesaid context in which 500 metre road
approaching from both sides of the road was constructed , I would still find that
a benevolent Samaritan constructor constructed the road without the blessings
of the Municipality. That is so because there was no appointment at all made
by the Municipality to construct the Nogqala road, notwithstanding
Municipal ity’s express acknowledgement that such road is substandard. I
therefore find that applicants’ argument is untanable.
[9] Lastly , it is common cause that applicants Integrated Development Plans (IDP)
including the one for 2023 -2024 financial year do not have in them any plan for
the construction of the Nogqala Road. The one for 2023 -2024 financial year
provides a standard purpose of the IDP as follows:
“This infrastructure master plan is intended to create a vison for Dr AB
Xuma Local Municipality in order to guide decision making process and
provide a basis for a comprehensive planning framework relating to the
roads and storm water, transport and electr icity infrastructure.”
[10] There is no vison at all that has been created in order to guide Municipality’s
decision making process relating to the construction of Nogqala road. No
planning framework at all has been provided as a basis for the constructio n of
Nogqala Road. In the interest of accountability5,it would be expected of the
Municipality to advise the respondent s from time to time of what had happened
and what would happen going forward with their request for the construction of
the road.
Separation of Powers
5 Section 195(1)(g) & (h) of the Constitution .
[11] With regards to the second argument relating to the doctrine of separation of
powers, I find that this argument is equally without merit. On this subject,
Baxter6 neatly puts it thus:
“Without statutory authority the court may not venture to question the
merits or wisdom of an y administrative decision that may be in dispute.
If the court were to do this, it would be usurping the authority that has
been entrusted t o the administrative body by the empowering
legislation .”7
[12] This court only directed the applicant to take all steps necessary for or with a
particular aim to commence and finish the described Nogqala Road. The
second order takes the form of a structural interdict or order. Nothing in both
orders usurp s the duty of the Municipality. It is clear that t he Municipality has
failed to perform its statutory and constitutional duties or take the steps
statutorily and constitutionally prescribed to comm ence and also finish the
construction of the road. I therefore come to the conclusion that this court has
not in any way usurped the powers of the Municipality.
[13] Accordingly, the application for leave to appeal must fail with costs as there
would be no prospect of success on appeal.
[14] In the result I would make the following order:
14.1 Application for leave to appeal is dismissed with costs.
__________________________________
A.S ZONO
ACTING JUDGE OF THE HIGH COURT
6 Baxter: Administrative Law, Page 305 .
7 National Treasury v Opposition to Urban Tolling Alliance 2012(6) SA 223 (CC) Para 44;
Economic Freedom Fighters v Speaker of the National Assembly 2016 (3) SA 580 (CC) Para 92 .
APPEARANCES:
For the Applicants :ADV GENUKILE
Instructed by :TSHIKUKUVUHE M INC
248 THOHOYANDOU P -EAST
Office No:7 and 8
Muremela Medical Centre
Murangi Street
Tel:015 023 0832
Cell:076 291 4034
Ref: TMA/CIV.16/2025
Email: tshikukuvhemattorneys@gmail.com
c/o :BRAUNS NYEMBEZI INC
Office No 2 Phyllis Court
49 Cumberland Street
Mthatha
Tel:047 531 1454
Email: admin@binc.co.za
For the Respondents : MR NKELE
Instructed by : T.A NKELE & SONS INC
56 Wesley Street
MTHATHA
Ref:TAN*I01838/nm/H/C
TEL: 047 531 0721/2
Email: t.n.nkele@mweb.co.za
Matter heard on : 16 May 2025
Judgment d elivered on : 27 May 2025