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[2026] ZAGPPHC 601
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City of Tshwane Metropolitan Municipality v Legari (A284/25) [2026] ZAGPPHC 601 (27 May 2026)
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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
CASE
NO:
A284/25
(1)
REPORTABLE: NO
(2)
OF INTEREST TO OTHER JUDGES: NO
(3)
REVISED: YES
Date
27 May 2026
Signature
In
the matter between:
CITY
OF TSHWANE METROPOLITAN MUNICIPALITY
Appellant
and
KAMOGELO
LEGARI
Respondent
In
re:
KAMOGELO
LEGARI
Applicant
And
CITY
OF TSHWANE METROPOLITAN MUNICIPALITY
First Respondent
DIVISION
HEAD: LABOUR RELATIONS MANAGEMENT
Second
Respondent
SENIOR
STRATEGIC EXECUTIVE SUPPORT SPECIALIST:
HUMAN
RESOURCES
Third Respondent
DIRECTOR:
HUMAN CAPITAL PROVISION AND MAINTENANCE Fourth Respondent
MEMBER
OF THE MAYORAL COMMITTEE
Fifth Respondent
ACTING
GROUP HEAD: COMMUNITY AND
SOCIAL
DEVELOPMENT
Sixth Respondent
HUMAN
RESOURCES DEPARTMENT HEAD
Seventh Respondent
This judgment was
prepared and authored by the Judge whose name is reflected and is
handed down electronically by circulation to
the parties or their
legal representatives by email and by uploading it to the electronic
file of this matter on Caselines.
The date for handing down is
deemed to be 27 May 2026.
JUDGMENT
CORAM: POTTERILL,
BAQWA JJ DE VOS AJ
Introduction
[1]
The appellant, the City of Tshwane Metropolitan
Municipality (“the City”)
appeals against the
dismissal of a rescission application.
[2]
The dispute concerns the respondent, Mr Kamogelo Legari (“Mr
Legari”),
an employee of the City of Tshwane, who is
dissatisfied with the City’s refusal to pay his salary.
Mr Legari brought
an urgent application to order the City to pay his
salary. This urgent application was successful and resulted in
an order
by Kooverjie J on 12 July 2022, directing the City to pay Mr
Legari his salary for the period 1 April 2022 to 30 June 2022.
[3]
The City launched an application to rescind the Kooverjie J order.
The
court a quo, per Domingo AJ, dismissed the City’s recusal
application. It is against this refusal that the City appeals. The
appeal is with the leave of Domingo AJ.
Nature
of the dispute
[4]
Mr. Legari, whilst employed by the City, garnered sufficient votes to
be elected
to the Rustenburg Local Municipal Council. Mr. Legari
commenced in his post with the Rustenburg Local Municipal Council in
December
2021.
[5]
On 24 January 2022, Mr Legari wrote to the Third Respondent, the
Senior Strategic
Executive Support Specialist Human Resources (“HR
Specialist”). From the HR Specialist’s response, it
is
apparent that Mr. Legari wanted to ensure his employment with the
City and election to the Rustenburg Council complied with the
City’s
regulatory provisions.
[6]
The HR Specialist informed Mr. Legari that his services with
Rustenburg Local
Municipality did not contravene any policy,
procedure, and/or regulation of the City, and was accordingly
permissible. The
reason given in the letter is that whilst some
regulations prohibit holding dual posts, that prohibition does not
apply if the
posts are in different municipalities. From the letter,
it is clear that the interpretation of the regulations is
contentious,
but that Mr. Legari is cleared to hold the two posts,
provided they are in different municipalities.
[7]
On 6 March 2022, Mr. Legari did not receive his salary. He raised a
query with
the Fourth Respondent, the Director: Human Capital
Provision and Maintenance (“Director”). The Director
informed Mr.
Legari that his salary was blocked because he was
receiving additional income from the Rustenburg Local Municipality.
[8]
The Director informed Mr. Legari that his salary would only become
unblocked
on instruction of the Sixth Respondent, who was Mr.
Legari’s direct supervisor. The Director further told Mr.
Legari that
a “small boy” like him would not receive the
salary.
[9]
After further correspondence, on 30 March 2022, the Sixth Respondent,
the Acting
Group Head: Community and Social Development, Tshwane,
informed the Director that Mr Legari had resigned from his post with
the
Rustenburg Local Municipality. The Sixth Respondent
specifically requested the Director to reactivate Mr. Legari’s
salary.
[10]
Despite the advice from the HR Specialist, Mr Legari’s
resignation from the Rustenburg Municipality,
and a request from the
Sixth Respondent, the Director did not release the funds.
[11]
At this stage, Mr. Legari explains, he had been without a salary for
some time. To pay for his
commute to work, he had to use his
savings. But these savings were depleted and he was about to default
on his bond payments, car
instalments and life insurance. Mr.
Legari was also the sole breadwinner of three minor children, aged
seven, three, and
the last one three months old.
[12]
Mr. Legari approached the urgent court seeking three months’
salary. The urgent application
came before Kooverjie J, who
granted the three months’ salary. The order of the Court
is dated 22 July 2022 and was
granted in the absence of the City. It
is this order which the City sought to rescind.
Judgment
of the court a quo
[13]
Domingo AJ held that none of the requirements for rescission, either
under Rule 42(1)(a) or the common
law, was met.
[14]
The Court
held that the City had failed to show the order was granted in its
absence for purposes of rule 42(1)(a). In reaching
this conclusion,
the Court relied on the judgment in
Zuma
[1]
that
“absence” in Rule 42(1)(a) “exist[s] to protect
litigants whose presence was precluded, not those whose absence
was
elected” and “a decision by a party not to participate in
proceedings where they have received notices of those
proceedings and
being given the opportunity to do so does not qualify as that party
having been absent for the purposes of Rule
42(1)(a).”
[15]
The Court
held
[2]
that the City was
correctly invited to participate in the proceedings according to the
rules of court; entered a notice of intention
to defend; addressed
correspondence to Mr Legari in which the City communicated their
representatives’ appointment as attorneys
of record, and also
attached a notice of intention to oppose in the same correspondence.
[16]
In light of these common cause facts, the Court concluded that: “the
order was not granted in
the absence of the applicant. The applicant
thus fails to meet the second jurisdictional requirement of Rule
42(1)(a).” The
Court held that the City’s failure to
explain its absence was fatal for both its Rule 42(1)(a) and common
law rescission
grounds.
[17]
For the City to be successful on appeal, it needs to disturb Domingo
AJ’s findings regarding
its absence.
The
City’s absence
[18]
The facts surrounding the City’s absence is
common cause between the parties.
The City, on appeal, does
not take issue with any of the factual findings forming the basis of
Domingo AJ’s finding on the
City’s absence.
[19]
The facts, as found by Domingo AJ, are that the City received notice
of the hearing on 22 July 2022.
The set-down date was contained in
the notice of motion that the City received. The City filed a notice
of intention to oppose.
The City had legal representation. The City
engaged Mr Legari in correspondence regarding the hearing. The City’s
representatives
were aware of the hearing date.
Reasons
for the absence
[20]
The Court
considered the events of the day of the hearing. Specifically, that
the City had legal representation on the day of the
hearing; the
legal representatives were informed that the matter was on the roll,
they knew the matter was on the roll, and they
nonetheless failed to
appear.
[3]
The City alleged it
believed the matter was online before Bam J and realised too late to
travel to Pretoria that it was before
Kooverjie J in person. The
Court held that, in relation to this explanation that -
“
It is also
alarming to me that, after discovering the matter had been moved to
Judge Kooverjie, the applicant’s legal representatives
did not
attempt to remedy the situation but simply resigned themselves to the
belief that they could not make it to court on such
short notice,
despite knowing the legal consequences of not appearing.
In the premises, I am not
convinced the applicant has provided a reasonable and satisfactory
explanation for their default or absence.”
[4]
[21]
On appeal, the City did not seek to disturb the factual findings on
which the Court made this finding.
Rather, it reiterated its
position. Specifically, that it had prepared for an online hearing
before Bam J, but learned too late
that the matter was to be heard in
person before Kooverje J. By the time it realised the hearing was in
person, it was too late
to attend, as its representatives were in
Melville.
[22]
This Court also considers explanation, which is essentially that the
City’s representatives erred
in failing to find the correct
roll. There is no allegation that the roll before Kooverje J was not
publicly available. There is
no allegation of an error on the roll.
The City does not state that their matter was on the roll before Bam
J. The explanation
is that the City assumed the matter was
before Bam J when it was in fact of Kooverje J’s roll.
The City’s representatives
did not explain why they made this
error.
[23]
The City explanation is lacking in further material respects. The
City does not explain when it found
out that its assumption that the
matter was to be heard by Bam J was incorrect. This is important. If
the City found out about
its error before judgment was handed down,
it does not explain what steps it took to prevent the judgment from
being handed down.
If the City found out after the judgment had been
handed down, it doesn’t explain why it did not approach
Kooverje J in chambers
and explain the situation to have the matter
recalled. The City also does not explain why it did not immediately
use the special
remedy in Rule 6(12)(c) to reconsider the order.
[24]
The City has not given a reasonable and satisfactory explanation.
The explanation is lacking
vital details, does not take the Court
into its confidence, and does not give the Court a sense of how the
order was granted in
the City’s absence.
[25]
Lastly, even if this Court were to accept the City’s
explanation at face value and ignore the
missing elements, it is an
explanation of negligence. Stated differently, to the extent there is
an explanation before the Court,
whilst lacking fullness, it is one
of gross negligence.
[26]
In
Chetty
[5]
the
Court held as follows: “broadly speaking, the exercise of a
court’s discretion [is] influenced by considerations
of
fairness and justice, having regard to all the facts and
circumstances of the particular case”. One of the most
important factors to be taken into account in the exercise of
discretion, so the Court in
Chetty
[6]
found,
was whether the applicant has demonstrated “a determined effort
to lay his case before the court and not an intention
to abandon it”
for “if it appears that [an applicant’s] default was
wilful or due to gross negligence, the court
should not come to his
assistance”.
[27]
In short, in cases of gross negligence, the Court should not come to
the assistance of someone seeking
to rescind an order.
[28]
The City’s explanation shows that it was aware of the hearing
and the likelihood of the order
being granted or that it had been
granted, did not take the necessary steps to prevent it, and did not
make use of the special
purpose remedy in rule 6(12)(c) to correct it
after it had been granted.
[29]
The City’s absence was not due to a procedural error that
prevented them from receiving notice.
The City did get the
notice but failed due to its own negligence in finding its matter on
the roll and attending Court. The absence
of the City is not the type
of absence that permits the Court to grant a rescission.
[30]
The City’s failure to appear at the hearing, despite notice,
has two consequences for its grounds
of rescission. The first is that
it fails to establish the order was erroneously granted in its
absence for purposes of Rule 42(1)(a),
the second is that it fails to
establish good cause under the common law in that it has failed to
explain its default adequately.
[31]
The City appeals against the conclusion reached by the Court without
seeking to disturb the factual
finding on which it is based. Rather,
the City submits that the authority of
Zuma
is factually
distinguishable. The City submits that
Zuma
concerns a
litigant who elects not to attend. Whilst the facts of this case are
that the City did not elect to attend, but merely
failed to attend.
Specifically, the submission on appeal is that the City “made
an effort to appear on the day”.
On this basis, the City
contends the Court a quo erred in finding the order was granted in
the absence of the City.
[32]
The City misconstrues the finding in
Zuma
. In
Zuma
,
the Court concluded that a party who is properly informed and fails
to attend has, despite receiving notice, elected not to attend
the
hearing and is not absent for purposes of Rule 42(1)(a). It
does not matter whether the litigant believes it elected
or not –
the question is whether, after proper notice, a party failed to
attend a hearing. The distinction which the
City seeks to draw
on the
Zuma
judgment is rejected.
[33]
The finding of the Court that the City has failed to explain its
absence and so failed to meet the
jurisdictional requirements for a
rescission under rule 42(1)(a) and the common law is upheld.
[34]
The City is
under a duty to give a “reasonable and satisfactory
explanation”
[7]
for its
default.
[8]
Recently, the
Constitutional Court in
Zuma
concluded that as Mr Zuma had failed to provide a plausible or
acceptable explanation for his default, he cannot hope to succeed
on
the merits, for ultimately, “an unsatisfactory and unacceptable
explanation remains so, whatever the prospects of success
on the
merits”.
[9]
[35]
In the
absence of a reasonable explanation for default, it is
unnecessary
to make findings or to consider the arguments relating to the
appellant’s prospects of success
.
[10]
[36]
Having found the City was in wilful default and the absence of good
cause, the requirements for a rescission
have not been met, and the
appeal is dismissed.
Costs
[37]
The Court sees no reason why costs should not follow the results. The
City has belatedly launched an
unsuccessful rescission application.
[38]
The matter is not complex, nor is it voluminous. There is no basis to
grant relief on any basis other
than Scale A.
Order
[39]
The Court grants an order:
1.
The appeal is dismissed.
2.
The appellant is ordered to pay the costs of the appeal.
Counsel’s costs on Scale A.
I de Vos
Acting Judge of the High
Court
I agree
S Potterill
Judge of the High Court
I agree
S.A.M. Baqwa
Judge of the High Court
Delivered:
This judgment is handed down electronically by uploading it to the
electronic file of this matter on CaseLines.
As a courtesy gesture,
it will be e-mailed to the parties/their legal representatives.
Counsel for
applicants:
PP Baloyi
Instructed by:
Leepile
Attorneys Inc
Counsel for
respondent:
M
Sithole
Instructed by:
Gordrich Gardee
Attorneys
Date of hearing:
22 January 2026
Date of judgment:
27 May 2026
[1]
Zuma v
Secretary of the Judicial Commission of Inquiry into Allegations of
State Capture and Fraud in the Public Sector Including
Organs of
State and Others
(CCT
52/21)
[2021] ZACC 28
;
2021 (11) BCLR 1263
(CC) (17 September 2021)
at para 53
[2]
Judgment
a quo para 30
[3]
Judgment
a quo para 33
[4]
Judgment
a quo para 34
[5]
Chetty v Law Society, Transvaal
1985 (2) SA 756
(A) at 764J-765D at
761D
[6]
at 760H and 761E
[7]
Grant
v Plumbers
1949 (2) SA 470
(O) p476–7
[8]
Government of the Republic of Zimbabwe v Fick
[2013]
ZACC 22
;
2013
(5) SA 325
(CC);
2013
(10) BCLR 1103
(CC)
(Fick) at para 85
[9]
Zuma v Secretary of the Judicial Commission of Inquiry into
Allegations of State Capture, Corruption and Fraud in the Public
Sector Including Organs of State and Others (CCT 52/21)
[2021] ZACC
28
;
2021 (11) BCLR 1263
(CC) (17 September 2021) 768B-C
[10]
768C