IN THE HIGH COURT OF SOUTH AFRICA
(NORTHERN CAPE DIVISION, KIMBERLEY)
Reportable/Not Reportable
Case no: 1396/2025
In the matter between:
MEC: DEPARTMENT OF COOPERATIVE GOVERNANCE,
HUMAN SETTLEMENTS AND TRADITIONAL AFFAIRS
DEPARTMENT OF COOPERATIVE GOVERNANCE, HUMAN
SETTLEMENTS AND TRADITIONAL AFFAIRS
and
NAMA KHOI LOCAL MUNICIPALITY
COUNCIL OF THE NAMA KHOI LOCAL MUNICIPALITY
RODNEY KRITZINGER
JAN IZAK SWARTZ
Coram: MAMOSEBO J.
Heard: 24 November 2025.
Delivered: 05 December 2025.
First Applicant
Second Applicant
First Respondent
Second Respondent
Third Respondent
Fourth Respondent
Summary: Application for leave to appeal - Reliance on s 17(1)(a)(i) and (ii) of the
Superior Courts Act 10 of 2013 - Whether the envisaged appeal has reasonable
prospects of success and or - Whether there are compelling reasons for the appeal
to be heard and or - Whether it would be in the interests of justice for the appeal to be
heard - Ne ither of the grounds are established - Leave to appeal is refused.
2
ORDER
1. The application for leave to appeal is dismissed with costs, including costs of
counsel on Scale C .
JUDGMENT
Mamosebo J
[1] This is an application for leave to appeal to the Full Court of this Division,
alternatively, the Supreme Court of Appeal (SCA ) against the whole of my
judgment and order handed down on 27 June 2025 in which I dismissed the
application for a declarator and ordered each party to pay its own costs. The
applicants rely on s 17 ( 1 )( a)(i) and (ii) of the Superior Courts Act1 that the
appeal would have reasonable prospects of success and that there is a
compelling reason for the appeal to be heard. The application is opposed by
the first and second respondents (hereafter collectively referred to as
respondents), the Nama Khoi Local Municipality and the Council of the Nama
Khoi Local Municipality, respectively. The third and fourth respondents filed
notices to abide the decision of the Court in the main application and are not
parties in this application for leave to appeal.
[2] The first and second applicants, MEC for the Department of Cooperative
Governance, Human Settlements and Traditional Affairs and the Department
of Cooperative Governance, Human Settlem ents and Traditional Affairs
(COGHSTA) , respectively, filed a notice of application for leave to appeal with
the Office of the Registrar on 18 July 2025. Whereas it is settled that the
grounds of appeal must be clearly outlined and succinct, the applicants'
1 10 of 2013.
3
grounds were presented not only in an argumentative but also in a repetitive
form which is impermissible. 2
[3] A brief background is that the respondents had appointed the 65-year-old
fourth respondent as the acting municipal manager for three months in terms
of s 54A of the Municipal Systems Act.3 The respondents intended for the
fourth respondent to be in employment as a mun icipal manager for two more
years after his employment contract of three years had ended. For various
reasons, this plan was not supported by the MEC. Nonetheless, the
respondents had accordingly applied to the Minister for Cooperative
Governance and Traditional Affairs for a waiver of the requirement that a
senior manager must retire upon the age of 65 as contemplated in Regulation
41(1).4 While the waiver application was pending before the Minister, the
applicants had urgently sought an order declaring unlawful, invalid, null and
void ab initio the employment of the fourth respondent as an acting municipal
manager. As already alluded to, I dismissed that application.
[4] Aggrieved, the applicants seek leave to appeal against the dismissal of their
application for a declarator. The surmised grounds upon which the applicants
rely in substantiation of this application are that the Court had erred:
4.1. In relying on the purported achievements of the fourth respondent as
a basis to determine whether his appointment as an acting municipal
manager was unlawful, invalid, and thus null and void ab initio.
4.2. In not finding that the jurisdictional requirements for a declaratory
order were met and subsequently declare the appointment of the
fourth respondent unlawful, invalid and set it aside.
4.3. In finding that the declaratory order would not be appropriate whereas
the finding made was influenced by an error of law thereby resulting
2 See Songono v M inister of Law and Order 1996 (4) SA 384 (E) at 3858 - H; see also Hing and Others
v Road Accident Fund2014 (3) SA 350 (WCC) para 4; see also Mahori and Anotherv Firstrand Bank
Ltd and Others (Leave to Appeal) 2024 JDR 1108 (GP) para 7.
3 32 of 2000.
4 Local Government: Regulations on Appointment and Conditions of Employment of Senior Managers
GN 21, GG 37245, 17 January 2014.
4
in the failure to exercise its discretion judiciously. The error of law
being the misconception of the actual dispute between the parties,
namely the unlawfulness or not of the fourth respondent's
appointment; and the reliance by the Court on the fourth respondent's
achievements to the ignorance of evidence relevant in determining the
main issue.
4.4. In not finding that absent a waiver by the Minister, the purported
appointment was unlawful, invalid and ought to be set aside.
[5] The test whether to grant leave to appeal is trite. 5 In Caratco (Pty) Ltd v
Independent Advisory (Pty) Ucfo the SCA held:
'In order to be granted leave to appeal in terms of s 17(1)(a)(i) ands 17(1)(a)(ii) of
the Superior Courts Act an applicant for leave must satisfy the court that the appeal
would have a reasonable prospect of success or that there is some other compelling
reason why the appeal should be heard. If the court is unpersuaded of the prospects
of success, it must still enquire into whether there is a compelling reason to entertain
the appeal. A compelling reason includes an important question of law or a discrete
issue of public importance that will have an effect on future disputes. But here too,
the merits remain vitally important and are often decisive. Caratco must satisfy this
court that it has met this threshold.'
[6] The gravamen of the applicants' complaint is that this Court had been
influenced by the achievements of the fourth respondent in not granting the
declarator sought by the applicants. The cited paragraph 19 of the Court's
judgment reads:
'Since the fourth respondent assumed his duty on 30 August 2022 neither the MEC
nor Council of the Municipality nor the Minister have raised complaints pertaining to
his competence and performance. The uncontroverted evidence is that he brought
about the turnaround that resulted in unqualified audits. This attribute strongly
5 Mont Chevaux Trust v Goosen 2014 JDR 2325 (LCC) para 6; S v Notshokovu 2016 JDR 1647 (SCA)
5 Mont Chevaux Trust v Goosen 2014 JDR 2325 (LCC) para 6; S v Notshokovu 2016 JDR 1647 (SCA)
para 2; S v Smith 2012 (1) SACR 567 (SCA) para 7; R ama katsa and Others v African National
Congress and Another (724/2019) [2021] ZASCA 31 (31 March 2021) para 10.
6 2020 (5) SA 35 (SCA) para 2.
5
militates against setting aside the fourth respondent's appointment, at least until the
Minister's decision, as that would otherwise leave a lacuna in the municipal
administration.' (My emphasis.)
[7] The words in bold above show that my refusal to grant a declarator was partly
influenced by the fact that the application for a wa iver was pending before the
Minister who would consider the same facts that this Court was privy to from
the papers, particularly paragraphs 19 and 21 of the main judgment. I also
clearly stated in the same sentence the need to avoid a lacuna, this being in
light of the importance of the position of a municipal manager. The applicants
are nit-picking and misconstruing the impugned judgment.
[8] In as far as prospects of success are concerned, the applicants' case faces
two hurdles: an improperly raised legal issue for determination and mootness.
The paragraphs which follow consider those aspects. The proceedings in the
impugned judgment were launched by way of notice of motion. In the replying
affidavit, the applicant tried to make a new case for the basis of the declarator
sought, namely the question whether a waiver is only necessary for the
appointment of a municipal manager or whether it is also necessary for the
appointment of an acting municipal manager. The applicant has now raised
the same issue as a ground for leave to appeal arguing that legal certainty is
needed on the matter. The SCA has, in Director of Hospital Services v Mistry, 7
held:
'When, as in this case, the proceedings are launched by way of notice of motion, it is
to the founding affidavit which a Judge will look to determine what the complaint is.
As was pointed out by KRAUSE J in Pountas' Trustee v Lahanas 1924 WLD 67 at 68
and as has been said in many other cases: • ... an applicant must stand or fall by his
petition and the facts alleged therein and that, although sometimes it is permissible
to supplement the allegations contained in the petition, still the main foundation of the
to supplement the allegations contained in the petition, still the main foundation of the
application is the allegation of facts stated therein, because those are the facts which
the respondent is called upon either to affirm or deny''.'
7 1979 (1) SA 626 (A) at 635H - 636A; see also Airpo,ts Company of South Africa (SOC) Ltd v
Tswelokgotso Trading Enterprise CC [2022] ZAGPJHC 410 para 9.
6
[9) The relief sought by the MEC and COGHSTA in prayer 2 was to declare the
appointment of the fourth respondent as the acting Municipal Manager of the
first respondent unlawful, invalid, null and void ab initio and set it aside. The
acting period has lapsed on 30 June 2025. The waiver was refused and the
fourth respondent has vacated his office. The aforementioned point towards,
borrowing from the phrase used by Ponnan JA, the envisaged appeal not
getting out of the starting stal Is. Even if it were to be found that the appointment
of the fourth respondent was unlawful, a determination wh ich was not made,
the determination by the appeal court would have no practical effect within the
meaning of s 16(2)(a)(i) of the Superior Courts Act. There is also no live
controversy as a new incumbent has been appointed to that position. 8
Accordingly, the matter would have no practical effect within the meaning of
s 16(2)(a)(i) of the Superior Courts Act and has become purely academic or
moot. Furthermore, it does not present any properly raised discrete legal
issues as the question on when the waiver is necessary was only raised in
reply.
(10] Importantly, a declarator is a discretionary remedy.9 This Court exercised a
discretion whether or not to grant the declarator having carefully analysed the
matter objectively. Apart from the alleged error of law wh ich cannot be
sustained as already demonstrated above, the applicants have not alleged
this Court's misdirection or irregularity. Therefore, taking cue from Association
of Voluntary Sterilization of South Africa v Standard Trust Limited and
Others 1°, the appeal court would not be at large to substitute its discretion for
the lower court's in the absence of any misdirection or irregularity. In
Muldersdrift Sustainable Development Forum v Mogale City11, the SCA
elucidated a two-stage substantive enquiry leading to the decision whether or
not to grant a declaratory order. First, the applicant must have a direct and
not to grant a declaratory order. First, the applicant must have a direct and
substantial interest in the order sought and secondly, the case must be proper
for the exercise of the discretion. Although the MEC had the locus standi to
8 See Public Protector v Chairperson, Section 194(1) Committee and Others 2025 (4) SA 428 (SCA)
paras 30, 31 and 32.
9 Cordiant Trading CC v Daimler Chrysler Financial Services (Pty) Ltd 2005 (6) SA 205 (SCA) para 17.
10 (325/2022) (2023] ZASCA 87 (7 June 2023) para 11.
11 (20424/14) (2015] ZASCA 118 (11 September 2015).
7
bring the application as held in the impugned judgment, in light of the
subsequent mootness, neither the MEC nor the Minister has the sort of
substantial and direct interest needed for the sought declarator. In my view, it
would not be in the interests of justice to grant leave to appeal under the
circumstances wherein the improperly sought legal certainty would be
couched in a declarator that has no practical effect as there are no longer any
parties upon whom the declaratory order would be binding. 12
[11] In conclusion, it is apposite to address the applicants' claims that the Court
failed to conduct its duty of proper consideration by not pronouncing on certain
aspects. I emphasise that the applicants in this regard are referring to new
matters which were raised in reply as already stated. Similarly, I have already
stated the impermissibility of such an approach. For completeness' sake, I
point out that in any event, the Constitutional Court in Vodacom (Pty) Ltd v
Makate and Another13 cautioned:
'Justice and, indeed, the court process are not about perfection; courts are not to be
held "to some abstract standard of perfection".
Of critical importance is that "there is no duty on a judge in giving ... reasons to deal
with every argument presented by counsel in support of [their] case". I say of "critical
importance" because some litigants may find this statement of the law attractive for
nitpickingly arguing that a court's judgment failed to deal with this or that point and
that, therefore, there was a breach of the right to a fair hearing. Let them be warned
that they will not succeed. That is not what this statement of the law is about. It is
about the substance of a judgment viewed holistically. So viewed, does the judgment
tell a reasonable, if not discerning, reader that there was compliance with the duty of
proper consideration? In that regard, it is enough if the judgment identifies the issues
that were vital to the determination of the matter and then shows how they were
that were vital to the determination of the matter and then shows how they were
determined. One or two issues may not necessarily be critical for that holistic look at
the substance of the judgment.'
12 West Coast Rock Lobster Association and Others v Minister of Environmental Affairs and Tourism
and Others [2011] 1 All SA 487 (SCA) para 45.
13 2025 (10) BCLR 1174 (CC) paras 43 and 57.
8
[12] Having carefully and dispassionately considered the application for leave to
appeal in order to determine whether there are reasonable prospects that
another court would come to a different finding than this Court had reached, I
have not found any. There are, in my view, no cognisable prospects of success
nor compelling reasons that warrant the attention of the Full Court of this
Division or the SCA to entertain this appeal. I am therefore satisfied that there
are no reasonable prospects of a successful appeal. In the result, the
application for leave to appeal to the Full Bench of this Division or the SCA
must fail.
[13] Initially, in the main judgment I was of the view that because it is two organs
of state ligating against each other, it would not be sensible to grant a cost
order against the losing party because the source for either one of them is the
public purse. However, and in this instance, I incline to grant the successful
party its costs because it cannot be left out of pocket ad infinitum.14
[14] In the result, the following order is made :
1. The application for leave to appeal is dismis~ed with costs, including
costs of counsel on Scale C.
Appearances
For the Applicants:
Instructed by:
For the First and Second Respondents:
Instructed by:
MC MAMOSEBO
JUDGE OF THE HIGH COURT
NORTHERN CAPE DIVISION
Adv. P Mthombeni
Motlhamme Pino Attorneys
Adv. A Nacerodien
Webber Wentzel Attorneys
c/o Elliot Maris Attorneys
14 Ne/ v Waterberg Landbouwers Ko-operatiewe Vereeniging 1946 AD 597 at 607; see also Limpopo
Legal Solutions and Another v Eskom Holdings Soc Limited 2017 (12) BCLR 1497 (CC) para 37.