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IN THE HIGH COURT OF SOUTH AFRICA
NORTH WEST HIGH COURT MAHIKENG
CASE NO: 5437/2025
In the matter between:
NOTABOGI VINCENT MASILO FIRST APPLICANT
AOBAKWE DIRE SECOND APPLICANT
YVONNE MORUTI THIRD APPLICANT
MOSA SEHLOHLO FOURTH APPLICANT
And
MAMUSA LOCAL MUNICIPALITY FIRST RESPONDENT
MUNICIPAL MANAGER OF MAMUSA SECOND RESPONDENT
LOCAL MUNICIPALITY
Reportable: YES / NO
Circulate to Judges: YES / NO
Circulate to Magistrates: YES / NO
Circulate to Regional Magistrates: YES / NO
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Date considered : 13 February 2025
Delivered: This judgment was handed down electronically by circulation to the
parties' representatives via email. The date and time for hand -down of the
judgment is deemed to be 20h00 on 20 February 2026.
JUDGEMENT
TSAUTSE AJ
INTRODUCTION
[1] This is an application for leave to appeal the judgment delivered on 24
October 2025, in which this Court granted an interim interdict suspending
disciplinary proceedings against the applicants pending the final
determination of a review application.
[2] The applicants (respondents in the main proceedings) contend that the
Court misdirected itself in three principal respects:
1. In its findings regarding the authority of the Municipal Manager and
the doctrine of legality;
2. In its application of the requisite elements for an interim interdict; and
3. In the exercise of its judicial discretion concerning the award of costs.
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[3] The respondents oppose the application, submitting that there are
no reasonable prospects of success on appeal and that the interim order is,
in any event, not appealable.
[4] The inquiry before this Court is narrow: whether the applicants have met
the statutory threshold established by section 17(1)(a) of the Superior
Courts Act 10 of 2013.
The Statutory Threshold
[5] Section 17(1)(a)(i) of the Superior Courts Act 10 of 2013 stipulates that
leave to appeal may only be granted where the judge concerned is of the
opinion that the appeal "would have a reasonable prospect of success".
[6] The jurisprudence has made plain that the use of the word "would" in the
Act, as opposed to the "might" found in previous legislation, represents
a heightened and more stringent threshold as set out in The Mont Chevaux
Trust v Tina Goosen & 18 Others [2014] ZALCC 20 at para 6. The inquiry
is no longer whether another court might reach a different conclusion, but
whether there is a realistic and substantial prospect that it would do so.
[7] The Supreme Court of Appeal held that a "sound, rational basis" is required
for leave to appeal, not merely a possibility of success or an arguable case.
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This requires a dispassionate decision that an appellate court could
reasonably reach a different conclusion. With this framework, the analysis
turns to the grounds advanced by the applicants.
A. Urgency and Appealability
[8] The first ground assails this Court's determination to enrol and hear the
matter as urgent in terms of Uniform Rule 6(12).
[9] It is trite that the adjudication of urgency constitutes a procedural and
quintessentially discretionary interlocutory ruling. Such a determination
governs merely the manner and timing of the dispute's hearing, without
impinging upon substantive rights. As held in S v Western Areas Ltd and
Others [2005] ZASCA 31 (para 24), a court's inherent power to regulate its
own process is ordinarily not appealable absent finality or dispositive
effect.
[10] This principle was reaffirmed by the Supreme Court of Appeal
in Cornerstone Logistics (Pty) Ltd v Zacpak Cape Town Depot (Pty) Ltd
[2022] ZASCA 12 (para 15), highlighting that procedural orders lacking
finality, such as urgency rulings, which are inherently temporary , do not
ordinarily attract appellate scrutiny. Indeed, as observed in Commissioner,
South African Revenue Service v Hawker Air Services (Pty) Ltd [2006]
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ZASCA 51 (para 9), a dismissal for want of urgency permits re-enrolment
in the ordinary roll, confirming the non-final nature of such decisions.
[11] The Constitutional Court in United Democratic Movement v Lebashe
Investment Group (Pty) Ltd [2022] (ZACC) 34 (para 25) reiterated that
appealability hinges on the "interests of justice," which typically demands
that an order be final in effect and dispositive of rights before warranting
intervention.
[12] The impugned urgency order satisfies none of these criteria, for it:
• is not final in effect;
• does not define or determine the substantive rights of the parties; and
• does not dispose of any portion of the relief sought in the main review
application.
[13] Even arguendo that the discretion was exercised imperfectly , which this
Court does not accept , such a ruling falls beyond the ambit of appellate
jurisdiction. To permit otherwise would engender the "piecemeal
adjudication" of disputes deprecated by the Constitutional Court
in Machele v Mailula [2010] (ZACC) 7 (para 37).
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[14] There exists no reasonable prospect that another court would overturn the
urgency determination or deem it appealable in terms of section 17(1)(a)
of the Superior Courts Act 10 of 2013.
B. Appealability of the Interim Interdict
[15] The core relief granted comprised an interim interdict suspending the
disciplinary proceedings pendente lite, pending finalisation of the review
application.
[16] The appealability of interim interdicts is governed by settled jurisprudence.
In Economic Freedom Fighters v Gordhan and Others [2020] ZACC 10
(paras 49 –50), the Constitutional Court confirmed that such orders are
ordinarily not appealable, being temporary measures that preserve
the status quo ante without determining the parties' ultimate rights or
disposing of substantial relief.
[17] This rule is buttressed by compelling policy considerations, including the
prevention of piecemeal appeals and the prudent conservation of judicial
resources. The principle was reiterated in United Democratic Movement v
Lebashe Investment Group (Pty) Ltd [2022] (ZACC) 34 (para 25), which
affirmed the "interests of justice" as the paramount test —rarely satisfied
by non-final interim orders.
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[18] The instant order was granted expressly pendente lite and lacks finality. It
neither disposes of any portion of the main relief nor determines:
• the legality of the Municipal Manager's appointment;
• the substantive merits of the disciplinary charges; or
• the ultimate justification for dismissal.
[19] These issues are reserved exclusively for the review court. The order thus
fails the traditional hallmarks of appealability articulated in Zweni v
Minister of Law and Order 1993 (1) SA 523 (A) at 533E –F—namely,
finality, definitive effect on rights, or disposition of substantial relief —
subject now to the overriding "interests of justice" inquiry.
[20] The applicants have adduced no exceptional circumstances, irreparable
harm, or other compelling factors warranting departure from the general
rule. Their averment of prejudice from delayed proceedings is unavailing;
as held in National Treasury v Opposition to Urban Tolling Alliance and
Others [2012] ZACC 18 (para 21), mere inconvenience or delay does not
elevate an interim order to appealable status.
[21] Should the review fail, the proceedings may resume untrammelled; should
it succeed, the interdict will have averted potentially unlawful action. In
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either event, the order preserves the integrity of the review process without
finally adjudicating rights.
[22] Therefore, no reasonable prospect exists that another court would deem the
order appealable or find the interests of justice demand interference with
this Court's discretion in terms of section 17(1)(a) of the Superior Courts
Act 10 of 2013.
C. Prima Facie Right and the Doctrine of Legality
[23] The applicants contend that this Court erred in finding that the respondents
established a prima facie right. However, the right asserted to was not a
claim to immunity from accountability, but rather the right to be subjected
to disciplinary action only where it is instituted by a lawfully authorised
official.
[24] The Constitutional Court in MEC for Health, Eastern Cape v Kirland
Investments (Pty) Ltd [2014] ZACC 6; 2014 (3) SA 481 (CC) established
that administrative decisions, even those that may be invalid , exist in fact
and carry legal consequences until a court of law formally sets them aside.
This principle prohibits public authorities from engaging in "self-help" by
unilaterally disregarding acts they deem invalid.
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[25] Further, the Supreme Court of Appeal has consistently affirmed in matters
such as Merafong City Local Municipality v Anglogold Ashanti Ltd [2016]
ZACC 35 that organs of state must proactively approach the courts to set
aside decisions they consider unlawful, rather than simply ignoring them.
[26] If the Municipal Manager’s purported dismissal was a nullity due to a lack
of authority, then in law, he remained in office. The principle that
an invalid dismissal is void and without legal effect is a cornerstone of our
labour and administrative jurisprudence.
[27] At this interim stage, the respondents were not required to prove their case
on a balance of probabilities. As held in Webster v Mitchell 1948 (1) SA
1186 (W), the requirement is merely the establishment of a prima facie
right, even if open to some doubt.
[28] The respondents demonstrated a bona fide dispute concerning the
underlying authority of the disciplinary process, thereby satisfying this
threshold. It cannot be said that another court, applying the dispassionate
standard required by section 17(1)(a), would necessarily reach a different
conclusion on this point.
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D. Balance of Convenience
[29] The applicants argue that the balance of convenience favours the
immediate resumption of disciplinary proceedings to uphold the principles
of accountability and the rule of law.
[30] This submission conflates administrative expediency with the substantive
requirements of the doctrine of legality. As the Constitutional Court held
in Chief Lesapo v North West Agricultural Bank 2000 (1) SA 409 (CC) ,
the rule of law does not permit "self -help" or shortcuts at the expense of
lawful process. Accountability pursued under potentially defective
authority does not vindicate the rule of law; rather, it fundamentally
undermines it.
[31] In weighing the competing interests, the Court must consider the nature of
the prejudice involved. The applicants cite the prejudice of delay.
However, as established in National Treasury and Others v Opposition to
Urban Tolling Alliance and Others (CCT 38/12) [2012] ZACC 18, when a
court considers the balance of convenience, it must be satisfied that the
harm to the party seeking the interdict is irreparable.
[32] In this instance, the risk to the respondents , potential dismissal following
proceedings that may ultimately be declared a nullity , is immediate and
carries significant, often irreversible, professional and personal
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consequences. In contrast, the prejudice to the applicants is temporary and
can be cured by resuming the proceedings should the review application
fail.
[33] The balance of convenience therefore justified the preservation of
the status quo pending judicial clarification of the underlying authority.
This is consistent with the principle in Olympic Passenger Service (Pty)
Ltd v Ramlagan 1957 (2) SA 382 (D), which permits the court to grant an
interdict where the prejudice to the applicant outweighs the inconvenience
to the respondent.
[34] No material misdirection in this assessment has been demonstrated, and
there is no reasonable prospect that an appellate court would find that the
balance was struck incorrectly.
E. Costs
[35] It is a fundamental principle of our law that the award of costs lies within
the narrow and unfettered discretion of the court of first instance. As the
Supreme Court of Appeal held in Trencon Construction (Pty) Ltd v
Industrial Development Corporation of South Africa Ltd and
Another [2015] ZACC 22 , an appellate court will not interfere with this
discretion merely because it might have reached a different conclusion.
Interference is warranted only where it is shown that the discretion was not
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exercised judicially, or was based on a misdirection of fact or a wrong
principle of law.
[36] In this matter, the award of costs followed the general rule that the
successful party is entitled to their costs. Furthermore, the litigation
concerned the exercise of public power and the protection of constitutional
legality.
[37] Following the principles established in Biowatch Trust v Office of the
Registrar, Genetic Resources [2009] ZACC 14, in constitutional litigation
against the State, even an unsuccessful private litigant is generally shielded
from an adverse costs order.
[38] Conversely, where the private party is successful in vindicating
constitutional rights against an organ of state, the awarding of costs is
entirely appropriate.
[39] The applicants bear the onus to establish that this Honourable Court
misdirected itself in the exercise of its discretion by acting capriciously,
perversely, or without due regard to the material considerations pertinent
to the matter. No such demonstration has been forthcoming.
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[40] In this regard, the challenge mounted against the costs order amounts to
no more than an expression of dissatisfaction with the outcome ultimately
reached. It is trite law that mere displeasure with a judicial determination
does not furnish the "sound, rat ional basis" requisite for a successful
appeal. This principle finds authoritative expression in Smith v S [2011]
ZASCA 15 (para 7), wherein the Supreme Court of Appeal emphatically
held that an appellate court will not lightly interfere with a discretion
properly exercised at first instance unless vitiated by material misdirection
or unreasonableness.
[41] The applicants have not presented any convincing reasons for this Court to
reconsider the order in question. As a result, their challenge to the costs
order does not meet the statutory requirements set out in section 17(1)(a)
of the Act.
Conclusion
[42] The order granted by this Court on 24 October 2025 was quintessentially
procedural and discretionary, particularly in its determination of urgency.
It was interim and non-final in effect, designed solely to preserve the status
quo ante. The judicial exercise of discretion therein rested upon a balanced
assessment of the competing harms at stake. Critically, it did not purport
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to finally determine the substantive rights of the parties, which fall to be
adjudicated by the review court in due course.
[43] As authoritatively held by the Constitutional Court in United Democratic
Movement v Lebashe Investment Group (Pty) Ltd [2022] (ZACC) 34 (para
25), it is generally not in the interests of justice to permit appeals against
purely interlocutory relief of this nature. To hold otherwise would frustrate
the very purpose of such relief and occasion the undesirable piecemeal
adjudication of the underlying dispute.
[44] The applicants have failed to demonstrate that another court would
reasonably arrive at a different conclusion on any ground advanced. In
particular, they have not discharged the onus of establishing that this Court
exercised its discretion, whether in relation to urgency or the costs order ,
capriciously, perversely, or without regard to the relevant considerations.
[45] Their challenge to the costs order bespeaks mere dissatisfaction with the
outcome, which does not constitute the "sound, rational basis" requisite for
leave to appeal, as mandated by Smith v S [2011] ZASCA 15 (para 7).
[46] The high threshold prescribed by section 17(1)(a) of the Superior Courts
Act 10 of 2013 accordingly remains unmet.
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Order
1. The application for leave to appeal is dismissed.
2. The applicants are ordered to pay the costs of this application on the
ordinary scale.
___________________________
TSAUTSE AJ
Acting Judge of the High Court
Appearances :
Counsel for 1st to 4th Applicants: Adv S Shamase
Shamase Ramotswedi Attorneys
Counsel for 1st and 2nd Respondents: Adv O I Monnahela
Mahikeng Chambers
M Mere & Associates Inc