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[2025] ZAMPMBHC 40
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Sibanyoni v Speaker of City of Mbombela and Others (2107/2025) [2025] ZAMPMBHC 40 (13 May 2025)
IN
THE HIGH COURT OF SOUTH AFRICA,
MPUMALANGA DIVISION, (MBOMBELA MAIN
SEAT)
Case No.: 2107/2025
(1)
REPORTABLE: NO
(2)
OF INTEREST TO OTHER JUDGES: NO
(3)
REVISED YES/NO
13-5-2025
In the application between:
DN
SIBANYONI
APPLICANT
and
THE SPEAKER
OF THE CITY OF MBOMBELA
FIRST RESPONDENT
THE MAYOR OF
THE CITY OF MBOMBELA
SECOND RESPONDENT
THE CITY
MANAGER OF THE CITY OF MBOMBELA THIRD
RESPONDENT
THE COUNCIL
OF THE CITY OF MBOMBELA
FOURTH RESPONDENT
THE MEC FOR
CORPORATE GOVERNANCE,
FIFTH
RESPONDENT
HUMAN
SETTLEMENT AND TRADITIONAL
AFFAIRS,
MPUMALANGA PROVINCE
JUDGMENT
FOURIE AJ
INTRODUCTION:
[1]
The matter at hand concerns an application in which the Applicant
seeks certain declaratory orders declaring certain directives,
reports and resolutions of the Respondents unlawful and to have them
set aside.
[2]
Initially when the application was opposed, the Second to Fourth
Respondents also issued a Counterapplication to declare
a certain
resolution that the Respondents themselves had taken, in respect of
the employment of the Applicant, and to appoint the
Applicant as the
Chief Financial Officer be declared unlawful, invalid and in
contravention of Section 56 of the Local Government
and Municipal
Systems Act of 2000.
[3]
After engagement by the Court, Advocate Zwane, appearing on behalf of
the Second to Fourth Respondents, specifically on
the urgency of the
Counterapplication, the Counterapplication was withdrawn. The
concession by Advocate Zwane on behalf of his
clients was well-made
in that their application, specifically the Notice of Motion part
thereof made no mention of a request for
the matter to be heard as
one of urgency and similarly their papers substantiating the
application did not set out a case in respect
of urgency at all. The
submission initially by Advocate Zwane that the urgency ought to
“piggyback” on the urgency
of the Applicant’s case
is a principle foreign to our law and one which the Court would in
any event not have accepted. The
only issue accordingly pertaining to
the Counterapplication of the Second – Fourth Respondents
remains the issue of costs
which I will deal with later.
URGENCY:
[4]
Before the Court can deal with the issues as between the respective
parties, and as in all matters of a nature such as
the current where
any of the parties averred the matter to be urgent, the Court is
vested with the obligation to first determine
whether the matter is
urgent and only after making such a determination, will the merits of
the application be considered.
[5]
I accept that in certain instances the merits of a matter might be
intertwined with the submissions pertaining to urgency
to the degree
that they cannot be separated, but I do not believe the current
matter is one where that is the case. I have similarly
not been
advised by any of the counsel that they wish to deal with the matter
as a whole as a result of the aforesaid proposition.
[6]
The previous practice directives of this division expressly stated
that the Court would not deal with urgent applications
exceeding a
specific number of pages. The current practice directives as enacted
by this Court on 14 April 2025 do not allow any
such provisions and
it is accepted that the Court ought to deal with the matter as per
the general principles pertaining to urgent
applications.
[7]
Ordinarily, this Court would have appreciated the opportunity to have
more time available to deal with a judgment in respect
of the issue
of urgency, but having considered that the matter at hand is of great
public interest and the relief the parties ultimately
seek might be
of great public importance I have found it necessary to deal with the
drafting and delivering of a Judgment on the
point of urgency
immediately after argument by the respective counsels on the point,
to enable the Applicant, should it be necessary,
to advance the
remainder of her argument and pursue the relief she ultimately does.
[8]
A litigant who approaches Court for leave on an urgent basis must
comply with Rule 6(12)(b) of the Uniform Rules of Court.
The Rule
reads as follows:
“
In every affidavit or
petition filed in support of any application under paragraph (a) of
this sub-rule, the Applicant shall set
forth explicitly the
circumstances which he avers render the matter urgent and the reason
why he claims that he could not be afforded
substantial redress at a
hearing in due course.”
[9]
The importance hereof is that the procedure as set out in Rule 6(12)
is not there for the mere taking. An Applicant has
to set forth
explicitly the circumstances which he avers render the matter urgent.
More importantly, the Applicant must state the
reasons why it claims
that it cannot be afforded substantial redress at a hearing in due
course. The question of whether a matter
is sufficiently urgent to be
enrolled and heard as an urgent application is underpinned by the
issue of the absence of substantial
redress in an application in due
course. The Rules allow the Court to come to the assistance of a
litigant because, if the latter
were to wait for a normal trial date,
it would not obtain substantial redress. It is important to note that
the Rule requires the
absence of substantial redress. This is not
equivalent to the irreparable harm that is required before the
granting of interim
relief. It is something less. He may still obtain
redress in an application in due course, but it may not be
substantial. Whether
an Applicant will not be able to obtain
substantial redress in an application in due course will be
determined by the facts of
each case. An Applicant must make out its
case in this regard
(See Eastrock Trading 7 (Pty) Ltd &
Another v Eagle Valley Granite (Pty) Ltd & Others (11133767)
[2011] ZAGPJHC 196 (23
September 2011)
.
[10]
There are thus two requirements that must be outlined in the Founding
Affidavit in order to satisfy the requirements
of the Rule
(See
Salt & Another v Smith
1991 (2) SA 186
(NM) at 197 A).
Whether
an Applicant has succeeded in satisfying the requirements for urgency
must be determined from the contents of the Founding
Affidavit
(See
Il & B Marcow Caterers v Greatermans SA
1981 (4) SA 108
(C) at
111 A).
[11]
In
LUNA
MEUBELVERVAARDIGERS (PTY) LTD V MAKIN & ANOTHER
[1]
Coetzee J held with reference to Rule 6(12)(b) the following:
“
Mere lip service to the
requirement of Rule 6(12)(b) will not do, and an Applicant must make
out a case in the Founding Affidavit
to justify the particular extent
of the departure from the norm which is involved in the time and day
for which the matter be set
down.”
[12]
The test in as far as it relates to urgency remains, at its core
whether, if the Court does not deal with the matter
at the current
junction, and the Court allows the matter to be heard in the normal
course, whether the Applicant will be able to
obtain substantial
redress. Substantial redress will depend on the facts of each
specific matter.
[13]
The Court takes judicial notice of the fact that should a matter be
enrolled to be heard on the opposed Motion Court
roll as at the date
of this judgment, the date obtained from the Registrar will be
approximately one year from the date of such
enrolment.
[14]
Counsel for the Applicant, Advocate Ngwenya, premised in argument,
the urgency of the Applicant on the matter of
APLENI v THE
PRESIDENT OF THE REPUBLIC OF SOUTH AFRICA AND ANOTHER
(65757/2017)
[2017] ZAGPPHC 656;
[2018] 1 ALL SA 728
GP (25 October
2017)(“hereafter
APLENI
”) where the Court held as
follows:
“
I hold that the application
is urgent. Where allegations are made relating to abuse of power by a
Minister or other Public Officials,
which may impact upon the Rule of
Law, and may have a detrimental impact upon the public purse the
relevant relief sought ought
normally be urgently considered.”
[15]
The Court accepts that, irrespective of the test regarding urgency,
the notion of inherent urgency, as one that litigants
loosely refer
to, is a notion the Courts ought generally to disregard. Each matter
premised upon the facts and legal principles
applicable to that
matter needs to be set out explicitly, and proven in order for a
Court to find that matter to be urgent.
[16]
If a party fails to set out explicitly why the matter is to be
regarded as urgent, they do so at their own peril.
[17]
I pause for a moment to evaluate the requirements of Rule 6(12)(b)
and specifically the fact that an Applicant is required
to set forth
explicitly
the circumstances which they aver render the matter
urgent. The fact that the Legislator deemed it necessary to impress
upon litigants
the need to make certain express and explicit
statements indicates the importance of highlighting the relevant
facts for the Court’s
consideration when evaluating whether a
matter is urgent. It can never be accepted that the Courts are
required to, by matter of
inference deduct from a reading of
affidavits and annexures that a matter is to be regarded as urgent.
[18]
The reliance by the Applicant on the matter of
APLENI
supra
is correct but the principles of
APLENI
need to be evaluated
to ensure that compliance in respect of
APLENI
has been met in
order to enforce the same relief that the Court granted in the matter
of
APLENI
. The matter of
APLENI
was properly evaluated
and I align myself with the evaluation thereof by Yacoob J in the
matter of
GOVENDER v MINISTER OF JUSTICE AND CONSTITUTIONAL
DEVELOPMENT AND OTHERS
(2024/088827) [2024] ZAGPJHC 779 (20
August 2024).
[19]
Yacoob J held that it must be noted that
APLENI
did not set a
precedent that any allegation of abuse of public power resulted in an
automatic enrolment on the urgent roll. It
required a probable impact
on the Rule of Law and an impact on the public purse. Then the relief
would
normally
be urgently considered. This does not oust the
Judge’s discretion. The Judge would still have to consider all
the relevant
elements for a claim of urgency. There is nothing in
APLENI
that exempts an Applicant from justifying the degree of
urgency imposed. To mention the principles of
APLENI
is simply
not sufficient; they need to be proven.
[20]
I accordingly align myself with the view that
APLENI,
although
finding application and deserving serious consideration in respect of
the current matter, does not dispense with the normal
principles
pertaining to urgency being proven which in essence would be the
principles as enunciated by
EAST ROCK
supra
dealing
with substantial redress and then the specific degrees of urgency.
[21]
The fact that judicial resources are a scarce commodity fortifies the
position that the urgent court ought to be reserved
for only the most
deserving of cases which necessitates litigants “jumping the
queue” of other litigants who were patiently
waiting in line
for their matters to be heard. It has long been held that the urgent
Court is not the forum in which to argue and
evaluate overly
technical matters or matters of extremely voluminous papers. A Court
dealing with an urgent application simply
does not have the luxury to
prepare on overly technical issues or overly voluminous papers.
[22]
It similarly places opposing litigants at an inconvenience, as, if
the matter is overly voluminous or overly technical,
parties may not
be in a position to advance their case as sufficiently and thoroughly
as they would have ordinarily liked if the
matter were brought on the
normal roll.
[23]
At least to a certain degree, the time frames chosen in the current
matter has indeed affected the Second to Fourth and
Fifth Respondents
as they indicated at the commencement of the matter they would have
wanted to still file a Replying Affidavit
to the Explanatory
Affidavit of the First Respondents who did not oppose or support the
application but explained their position
with the filing of an
affidavit. At least to this degree, the Court needs to accept that
the manner in which the application was
brought had some prejudice in
the preparation of papers that parties would have liked to file
before the matter was heard.
[24]
I agree that the matter at hand is one of great public interest, the
position the Applicant holds or at least held up
until the
termination of her employment necessitates full transparency in how
this matter is dealt with and given the importance
of the issues at
hand, not only pertaining to the Applicant, but also the Rule of Law,
this Court cannot be left to speculate or
guess on certain issues
which are crucially important to dispense with the matter and for
justice to be done.
[25]
The Applicant, in substantiating urgency in the matter, in her
Founding Affidavit, deals with urgency in paragraphs 28
and 29 of her
affidavit.
[26]
Besides the Applicant stating that the matter is inherently urgent,
an aspect with which I have already dealt, she states
that:
[26.1] The matter involves an
allegation about the abuse of public power.
[26.2] The matter involves her
fundamental right to job security and dignity; and
[26.3] The matter involves
public interest.
[27]
Insofar as it relates to substantial redress, she states that she
will not be afforded substantial redress in due course
because the
effect of the termination is that she will lose her salary, which is
the only source of her income.
[28]
The substantial redress portion of the Applicant’s statements
relates only to the proposed financial effect on
the Applicant if the
matter is not disposed of in this Court.
[29]
The Applicant does not deal with the issues of substantial redress
insofar as it relates to the abuse of public power
or the effect on
the public purse.
[30]
Having premised her application on the principles of
APLENI
supra,
the Court would have expected the Applicant to at least
deal with these requirements when addressing substantial redress
also.
The Applicant’s founding papers are, in essence, silent
on the effect on the public purse. During the argument, Advocate
Ngwenya, appearing on behalf of the Applicant, requested the Court to
draw an inference to the effect on the public purse from the
submission that the matter involves public interest and the fact that
the Applicant’s office is closely connected to service
delivery
and certainty regarding the office of the CFO. The Applicant did not
address in any way how, pending the matter being
heard on the normal
roll, the decisions of the Respondents would impact not the Applicant
in her personal capacity but the public
purse and the general working
of the Respondents.
[31]
I have already stated that the Applicant needed to explicitly set out
these issues in her Founding Affidavit.
[32]
The Applicant wished for the court to read into her Founding
Affidavit the content of her answering affidavit in a previous
litigious process. In paragraph 17 of her founding affidavit, she
mentioned her previous affidavit for “the benefit of the
court”. She does not ask for the affidavit to be incorporated,
nor does she seek the court to take specific notice of specific
portions on which she relies to substantiate the relief she seeks.
[33]
The general principle is that a party cannot merely annexe a document
or an affidavit to its papers and require the court
to prepare on the
document without having been directed to which portions of the
document or affidavit they will be relying on.
I believe this general
principle finds even greater traction when a matter is heard in the
urgent court.
[34]
I agree with the dictum of Joffe J where it was stated in the matter
of
SWISSBOROUGH DIAMOND MINES (PTY) LTD AND OTHERS v GOVERNMENT OF
THE REPUBLIC OF SOUTH AFRICA AND OTHERS
1999 (2) SA 279
(T)
at
p
324 F-G
that:
“
Regard being had to the
function of affidavits, it is not open to an applicant or a
respondent to merely annexe to their affidavit
documentation and to
request the Court to have regard to it. What is required is the
identification of the portions thereof on
which reliance is placed
and an indication of the case which is sought to be made out on the
strength thereof. If this were not
so, the essence of our established
practice would be destroyed. A party would not know what case must be
met.”
[35]
In her Replying Affidavit, the Applicant concedes that she would
receive redress in the normal course but indicates that
the redress
would not be substantial. The substantial portion thereof again deals
only with her personal interest and not the interest
of the public or
the public purse.
[36]
Insofar as it relates to the Applicant personally, the Court is not
persuaded that the unavailability of finances is
deserving of a
matter of the current magnitude and complexity being heard on the
urgent roll. If the Courts are to allow matters
of a purely personal
nature relating to the termination of their employment to be heard on
the urgent roll purely as a result of
employment being terminated,
the Courts, and specifically the Urgent Courts, would be flooded with
similar applications. I am fortified
in this position to state that,
if the Applicant ultimately succeeds with the relief that she is
seeking, she will be reinstated
and compensated for the manner in
which she has been dealt with.
[37]
Speaking to the technical nature of the matter it is common cause
that the issues at hand are not issues the Courts are
regularly faced
with and I am fortified in this position by the fact that, despite
being engaged thereon the counsel appearing
in the matter were still
not in agreement on the applicability or not of whether the matter is
to be regarded as a matter seeking
a declarator order, whether PAJA
finds application and whether the matter is to be dealt with under
the auspices of the Labour
Relations Act. Each of the respective
counsels held their separate views on all of these issues, and it
indicates the technical
nature of the matter at hand, which this
Court, as an urgent Court, ought not to be burdened to deal with or
dispose of.
[38]
Due to the fact that the Applicant has remained silent on specific
averments that could lead the Court to find the matter
to be
sufficiently urgent, together with the fact that the matter is
extremely technical and complicated in nature and having regard
to
the fact that the matter is of great public importance and that a
correct ultimate decision in respect of the matter after proper
evaluation needs to be achieved, I cannot find that the matter is
sufficiently urgent to be dealt with as such by this Court.
COSTS:
[39]
The normal principles relating to costs are trite in that a
successful litigant ought to be entitled to recover its costs
from an
unsuccessful litigant. In the current matter, the Applicant was
unsuccessful in her submissions pertaining to urgency.
Similarly, the
Second to Fourth Respondents were unsuccessful in their submissions
pertaining to the Counterapplication. The Second
to Fourth
Respondents cannot escape the cost order that flows from their
Counterapplication, which was evidently made in error.
[40]
Advocate Dlamini SC, on behalf of the Fifth Respondent, argued that
costs ought to include the cost of both senior and
junior counsel.
The Applicant and the Fifth Respondents employed the services of
senior and junior counsel, Advocate Ngwenya being
regarded as senior
in stature although not yet in title, and I am satisfied that this
would be an appropriate order.
APPROPRIATE
ORDER:
[37]
For all the reasons before, the following order is made:
1. The application is struck
from the roll for want of urgency.
2. The Applicant shall pay the
Second to Fourth and the Fifth Respondents’ costs on a party
and party scale, Scale B,
which costs shall include in as far as it
refers to the Fifth Respondent to the costs of both senior and junior
counsel employed.
3. The Second to Fourth
Respondents shall pay the Applicant’s costs in respect of the
Counterapplication withdrawn at
the hearing of the matter.
4. The parties shall jointly
approach the Registrar to compile a Form B for the matter to be case
managed and for the allocation
of a trial date on the normal Motion
Court roll, which case management shall be completed by 25 May 2025.
H
F FOURIE AJ
ACTING
JUDGE OF HIGH COURT, MBOMBELA
Counsel
for the Applicant:
Adv TS Ngwenya
Adv L Makamu
Instructed
by:
NTIWANE MGIJIMA ATTORNEYS INC
C/O NTHABISENG MADOA INC
Counsel
for the First Respondent: Adv TC Mokhare
Instructed
by:
GERHARD LOURENS INC
Counsel
for the Second to Fourth Adv Zwane
Respondents:
Instructed
by:
WS NKOSI ATTORNEYS INC
Counsel
for the Fifth Respondent: Adv MW Dlamini SC
Adv N Nkosi
Instructed
by:
OFFICE OF THE STATE ATTORNEY
C/O RS BHILA ATTORNEYS
Judgment
reserved on: 14 May 2025
Date
of delivery:
14 May 2025