IN THE HIGH COURT OF SOUTH AFRICA
MPUMALANGA DIVISION , MBOMBELA (MAIN SEAT)
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES : NO
(3) REVISED: YES
04/02/2026
DATE
In the matter between:
MEMBER OF THE EXECUTIVE COUNCIL: COOPERATIVE
GOVERNANCE AND TRADITIONA L AFFAIRS ,
MPUMALANGA
ANALYTICA L FORENSIC INVESTIGATION SERVICES
(PTY) LTD
MINISTER OF COOPERATIVE GOVERNANCE AND
TRADITIONAL AFFAIRS
CASE NO: 3430/2022
FIRST APPLICANT
SECOND APPLICANT
THIRD APPLICANT
2
MINISTER OF FINANCE FOURTH APPLICANT
EMALAHLENI LOCAL MUNICIPALITY FIFTH APPLICANT
and
HUMPHREY SIZWE MA YISELA FIRST RESPONDENT
PRECIOUS JABULILE HLATSHWA YO SECOND RESPONDENT
THAPELA MICHAEL LELAKA THIRD RESPONDENT
COLIN BRENT JIES FOURTH RESPONDENT
EDWIN SEDUPANE FIFTH RESPONDENT
This judgment was handed down electronically by circulation to the parties and/or parties '
repres entatives by email. The date and time for hand-down is deemed to be 04 February
2026 at 1 Oh 00.
JUDGME NT
Mashile J
[1] This is a leave to appeal application following this Court reviewing and setting
aside three decisions by the First Applicant ("the MEC"), which were as follows:
1.1 Designating the Second Applicant ("AFIS") to investigate allegations of
maladmin istration, fraud, corruption or any other serious malpractice within
3
the Fifth Applicant ("the .Municipality") in terms of Section 106(1 )(b) of the
Local Government Municipal Systems Act1 ("the MSA");
1.2 The AFIS Report titled: Investigation in terms of Section 106(1 )(b) of the
MSA; - Emalahleni Local Municipality;
1.3 The adoption and tabling of the Report in the Provincial Executive Council.
[2] This Court also awarded costs jointly and severally against the MEC and AFIS
("the Applicants"). Dissatisfied with the interim order as described above, the Applicants
launched this application for leave to appeal. At the heart of this matter is that this Court
failed to discharge its duties contemplated in Section 34 of the Constitution of the Republic
of South Africa ("the Constitution").2 In support of the criticism, the MEC and AFIS have
raised several grounds of appeal. Some of these grounds, they argue, were identified by
this Court early in the judgment , but failed to canvass them when analysing the matter. I
now proceed to briefly discuss those main grounds on which the MEC and AFIS rely.
[3] The MEC raised the following two grounds: Firstly, the Respondents lacked locus
standi. Secondly, the review prematurely came before this Court. These are two distinct
grounds, but they are consequential because the former precedes the latter unless locus
standi is conceded . In justification of the grounds, the MEC contends that the decisions
of the MEC and the subsequent report were not final administrative decisions as intended
in Section 1 of the Promotion of Administrative Justice Act ("PAJA").3 That must be the
position, argues the MEC, because AFIS's report has neither been tabled before the
Municipality nor has there been any disciplinary action against the Respondents
stemming from the report.
[4] Insofar as AFIS is concerned, this Court misconstrued the relief sought by the
Respondents. It is the MEC's decision to designate AFIS, so continues the argument, that
the Respondents impugned and not the MEC's decision to invoke the power to investigate
the Respondents impugned and not the MEC's decision to invoke the power to investigate
1 Local Government: Municipal Systems Act, No 32 of 2000 ("the MSA").
2 Constitution of the Republic of South Africa, Act No 108 of 1996 ("the Constitution").
3 Promotion of Administrative Justice Act, No 3 of 2001 ("PAJA").
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bestowed upon her by Section 106(1 )(b) of the MSA. To the extent that this Court
interpreted the notice of motion as comprising the latter , it has erred. For that reason,
concludes AFIS, anothe r Court would reach a different conclusion.
[5] Section 17(1 )(a) of the Superior Courts Act, 1 0 of 2013 provides that:
"(c1) Leave to appeal may only be given where the judge or judges concerned are of
the opinion that -
(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."
[6] In Ramakatsa and Others v African National Congress and Another 4, the Supreme
Court of Appeal ("SCA") set out the test when seek ing leave to appeal under Section
17(1)(a)(i), as follows :
" ... I am mindful of the decisions at the High Court level debating whether the use of the
word 'would' as opposed to 'could' possibly means that the threshold for granting the
appeal has been raised. If a reasonable prospect of success is established, leave to
appeal should be granted. Similarly, if there are some other compelling reasons why the
appeal should be heard, leave to appeal should be granted. The test of reasonable
prospects of success postulates a dispassionate decision based on the facts and the law
that a court of appeal could reasonably arrive at a conclusion different to that of the trial
court. In other words, the appellants in this matter need to convince this Court on proper
grounds that they have prospects of success on appeal. Those prospects of success must
not be remote, but there must exist a reasonable chance of succeeding. A sound rational
basis for the conclusion that there are prospects of success must be shown to exist."
[7] The applicable threshold when applying Section 17(1 )(a)(i) of the Superior Courts
Act remains the same as under the old Supreme Court Act , 59 of 1959. The interpretat ion
Act remains the same as under the old Supreme Court Act , 59 of 1959. The interpretat ion
4 Ramakatsa and Others v African National Congress and Another (2021) JOL 49993 (SCA) para 10.
5
of this Section, as articulated by the SCA in the Ramakatsa matter supra, does not result
in any raised threshold, requiring some degree of certainty that the Appeal Court will differ
from the Court a quo. The Supreme Court Act standard that 'a Court of Appeal could
reasonably arrive at a conclusion different to that of the trial Court' is still extant. If the
Court is unpersuaded by the prospects of success, it must still enquire into whether there
is a compelling reason to entertain the appeal. In Caratco (Pty) Ltd v Independent
Advisory (Pty) Ltd5, the Court defined a compelling reason as one including an important
question of law or a discrete issue of public importance that will have an effect on future
disputes.
[8] Any discussion of locus standi and prematurity in these circumstances must begin
with Section 3 of PAJA, headed: "Procedurally fair administrative action affecting any
person." Subsection 1 states that: "administrative action which materially and adversely
affects the rights or legitimate expectations of any person must be procedurally fair." The
AFIS report made unequivocal conclusions of alleged misconduct against the
Respondents and accused them of wrongdoing. These included, among others,
corruption, mismanagement, incompetence, and recommended criminal liability and
investigations. These findings, together with the recommendations, are devastating and
adverse to the Respondents, making them, for the purposes of this Application, the
people envisaged in Section 3(1) of PAJA.
[9] The MEC's assertion that the decisions were directed at the Municipality and not
the Respondents, thereby implying that any adverse consequence befalling the
Respondents must be treated as a mere coincidence, must be rejected. The Respondents
have already felt the impact of the findings in the AFIS report, as it has been published,
and their image in the public eye is no longer the same. Once this has happened, I find it
and their image in the public eye is no longer the same. Once this has happened, I find it
difficult to understand why they would lack locus standiwhen PAJA specifically prescribes
that 'administrative action which materially and adversely affects the rights or legitimate
e xpe ctations of any person must be proce d urally fair.'
5 Caratco (Pty) Ltd v Independent Advisory (Pty) Ltd 2020 (5) SA 35 (SCA) para 2.
6
[1 0] Turning to the ground that the application for the review of the ME C's decisions
was premature. The import of this Court's finding that the impugned decisions were
administrative actions is that another's rights have been adversely affected. These are
the Respondents. The issue of prematurity cannot arise because implied in the MEC's
argument is a subtle admission that the Respondents were adversely affected, even
though they were not the target. By inference, therefore, they have locus standi but must
live with the adverse consequences until the AFIS report has been tabled before the
Municipality. That is not acceptable, and PAJA was enacted to address such situations.
[11] In any event, Section 106(6) of the MSA states that a Municipality must take
disciplinary measures if it appears necessary from the Report. I agree with Counsel for
the Respondents that, given the damaging findings of the AFIS report on the
Respondents, the Municipality does not have any discretion but to implement the
disciplinary processes contemplated in Section 106(6) of the MSA The question is, why
should the Respondents wait for an event that they know is certain to come? I do not see
another Court reaching a different conclusion on both locus standi and prematurity.
Accordingly , it will serve no purpose to grant leave on those grounds. Insofar as the other
grounds raised by the MEC, I have carefully considered them and chosen to defer to the
judgment.
[12] The main ground for AFIS is that the notice of motion is couched in a manner that
suggests that the attack is aimed at the designation of AFIS as an investigator and not
the power of the MEC to invoke Section 106(1 )(b) of the MSA. I reiterate that a proper
reading of the notice of motion and the founding and replying affidavits shows that the
MEC's authority is also impugned. Accordingly, I do not expect another Court to reach a
different conclusion on that matter, and there is no compelling reason why I should grant
different conclusion on that matter, and there is no compelling reason why I should grant
leave to appeal. In the circumstances, it is appropriate to refuse leave to appeal. Like in
the case of the MEC , I have given adequate thought to the other grounds of appeal raised
by AFIS. In my opinion, my judgment covers them, making it unnecessary to reconsider
them.
7
[13] I have also considered if there exists a compelling reason, including an important
question of law or a discrete issue of public importance, that will have an effect on future
disputes. The outcome of my assessment is that both do not exist, making it unnecessary
to entertain this matter.
[14] Against the background above, I am constrained to make the following order:
(a) Leave to appeal is dismissed.
(b) Both the MEC and AFIS are liable for the costs of the Respondents as at
the scale between party and party Scale 'B'.
Appearances
Counsel for the Applicant:
Instructed by:
Counsel for the Respondent:
Instructed by:
C/O
HILE
JUDGE OF THE HIGH COURT
MPUMALANGA DIVISION, MBOMBELA
Adv ZZ Matebese SC
Adv L Zwane
Matsane Attorneys
Adv M Peacok
Morgan Law Incorporated
Christo Smith Attorneys Incorporated
Counsel for the 2nd Respondent: Adv L Laughland
Instructed by: Adams Attorneys
C/O Ou Toit - Smuts & Partners
Date of Judgment: 04 February 2026