IN THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL LOCAL DIVISION, DURBAN
CASE NO: 2026-208317
In the matter between:
MEC FOR COGTA FIRST APPLICANT
NHLAKANIPHO SYDNEY FREEDOM ZULU SECOND APPLICANT
and
UMDONI LOCAL MUNICIPALITY FIRST RESPONDENT
UMDONI MUNICIPAL COUNCIL SECOND RESPONDENT
THE PURPOTED MUNICIPAL THIRD RESPONDENT
COUNCIL WHO MET ON 20TH AUGUST 2026
DHANPALAN DEVARAJ NAIDOO FOURTH RESPONDENT
POONSAMY NAIDOO FIFTH RESPONDENT
SIWAPHIWE ALEX ZOKO SIXTH RESPONDENT
SITHANDIWE ZULU SEVENTH RESPONDENT
MTHOKOZISI REGINALD MADLALA EIGHT RESPONDENT
MPHIWE ANDREAS MBANJWA NINTH RESPONDENT
GIDEON MANDLENKOSI PHUNGULA TENTH RESPONDENT
2
LUNGISA REGGIE DLAMINI ELEVENTH RESPONDENT
WELCOME SITHEMBISO MTHWANE TWELVE RESPONDENT
SIPHELELE EWART HORATIO MNGOMA THIRTEEN RESPONDENT
PRINCESS NONHLANHLA NOMBIKA FOURTHEEN ESPONDENT
BHEKANI ANTHONY CELE FIFTEENTH RESPONDENT
NONHLANHLA LADYPEACE NKOMO SIXTEENTH RESPONDENT
SOLLY VINCENT KHANYILE SEVENTEETH RESPONDENT
RIVANAND SAMLALL MAHARAJ EIGHTEENTH RESPONDENT
MUHAMMAD ASGHAR KHAN NINENTEETH RESPONDENT
ROYITH BALOO BHOOLA TWENTIETH RESPONDENT
ALLAN T CUTTEN TWENTY-FIRST RESPONDENT
SHAMILLA SOOKHRAJ TWENTY-SECOND RESPONDENT
DANA DANIELS TWENTY-THIRD RESPONDENT
SALEEM MAHOMED TWENTY-FOURTH RESPONDENT
ZAMA FORTUNATE MIYA TWENTY-FIFTH RESPONDENT
SIBUSISO DAVID MDLULI TWENTY-SIXTH RESPONDENT
ZANELE MOLEFE TWENTY-SEVENTH RESPONDENT
NONHLANHLA MNGOMEZULU TWENTY-EIGHTH RESPONDENT
ORDER
The following order is made:
1. The application is struck off the roll.
2. The applicants are to pay the costs of this application, including the costs of two
counsel where so employed on scale B.
3
JUDGMENT
Sipunzi J
Introduction
[1] This is an urgent application in terms of which the applicants seek relief as set
out in the first order prayed. They seek to rescind the decision of the Umdoni Municipal
Council and the respondents in appointing, Ms Mngomezulu, the 28 th respondent as
the acting municipal manager. They further seek that the decision of the respondents
to reinstate the appointment of the fourth respondent, Mr Dhanpalan Devaraj Naidoo
as the acting municipal manager be declared unlawful and set aside. As set out in the
notice of motion:
“1. That the matter is heard as urgent;
2. That pending the final determination of the second order prayed:
2.1. that the third respondent’s decision taken on 20 August 2026 to:
2.1.1. rescind the second respondent’s decision to terminate the position of fourth
respondent as acting municipal manager; and to
2.1.2. reinstate the fourth respondent as the acting municipal manager with effect from
21 August 2026;
be and are hereby suspended forthwith.
3. that the first to third respondent are interdicted and restrained from appointing
anyone into such acting position in the future until the secondment to the second
applicant in such position is terminated by the first applicant or upon appointment of
the municipal manager.
4. that the costs of this application are reserved for the court hearing the second order
prayed.”
[2] The application is opposed by the first and second respondents (the
respondents) on the basis that it lacks urgency; and an abuse of process. The
4
respondents also raised points in limine; which they believed were dispositive of the
application. The remaining respondents did not participate in the proceedings.
Background
[3] On 5 August 2026, the Umdoni Municipal Council held a meeting, with a set
agenda. At the time, the fourth respondent was acting municipal manager. His tenure
was due to expire on 12 August 2026. During the meeting, there was a proposal to
discuss the term ination of the fourth respondent’s appointment as acting municipal
manager. This proposal was rejected for the reason that it was not an item on the
agenda.
[4] Although there was a rejection of the proposed agenda item, the Speaker
allowed the discussion to proceed. In protest, some councillors walked out of the
meeting as their expression of disapproval of the Speaker’s conduct. The remaining
councillors resolv ed to terminate the fourth respondent’s contract with immediate
effect. On the written request of the mayor, on 6 August 2026 the first applicant (the
MEC) dispatched the second applicant to commence duties as acting municipal
manager.
[5] On 19 August 2026, the Speaker called a special meeting, scheduled for 20
August 2026. There was no agenda circulated for this meeting. Nonetheless, the
meeting did quorate as it was attended by 21 councillors. Shortly before the meeting
was due to commence, the Speaker cancelled the meeting by sending out a
WhatsApp text to the councillors. In protest, the councillors who had attended the
meeting resolved to continue in the absence of the Speaker and the second applicant.
[6] The attendees resolved to designate the 28 th respondent to preside over the
meeting. The meeting resolved to rescind the council’s decision that was taken on 5
August 2025 to terminate the acting appointment of the fourth respondent. The fourth
respondent was then reinstated to resume duties from 21 August 2026.
5
Points in limine
The founding affidavit
[7] The MEC deposed to the founding affidavit on 26 August 2026. It was
commissioned by a legal representative, Mr Mpumelelo Zikalala, an attorney of the
High Court of South Africa, at the 7 th floor Durban Club Chambers, Durban. The
contention of the respondents was that Mr Zikalala was disqualified from
commissioning the affidavit of his client. The respondents argued that as the legal
representative of the deponent, Mr Zikalala had an interest in the matter. On the other
hand, the applicants submitted that, Mr Zikalala was a mere correspondent attorney
and by implication had no interest in the matter.
[8] Regulation 7(1) of the Regulations Governing the Administering of an Oath or
Affirmation1 promulgated in terms of the Justices of the Peace and Commissioners of
Oaths Act 16 of 1963 provides that a commissioner of oaths shall not administer an
oath or affirmation relating to a matter in which he has an interest.
[9] It is common cause that Mr Zikalala was the correspondent attorney when he
administered the oath and commissioned the affidavit of the MEC. The question that
arises, is whether he had an interest in the matter and therefore disqualified from
commissioning the affidavit. In Kouwenhoven v Minister of Police and Others ,2 the
Supreme Court of Appeal (the SCA) settled the question of what constituted ‘interest’
within the context of reg 7(1). The SCA determined this by reflecting on the reasoning
of the courts in The Master v Benjamin NO 3 and R v Brummer ;4 which was
subsequently overruled in R v Rajah .5 Ultimately, the SCA emphasised that the
‘interest’ must be sufficiently substantial to render the affidavit inadmissible. It held
that: 6
1 GN 1258, GG 3619, 21 July 1972.
2 Kouwenhoven v Minister of Police and Others [2021] ZASCA 119 (Kouwenhoven).
3 The Master v Benjamin NO 1955 (4) SA 14 (T).
4 R v Brummer 1952 (4) SA 437 (T).
5 R v Rajah 1955 (3) SA 276 (A).
4 R v Brummer 1952 (4) SA 437 (T).
5 R v Rajah 1955 (3) SA 276 (A).
6 Kouwenhoven para 30.
6
‘The usual instances in which the commissioner has been held to have an interest are cases
where an affidavit has been attested before an attorney acting in the litigation or proceedings
for which the affidavit is tendered, or before that attorney's partner or agent. These cases
overlap with a rule of evidence derived from English law that an affidavit deposed to before
such an attorney is inadmissible. In Papenfus the court extended the exclusionary rule of
evidence to an in-house legal adviser for a board in regard to affidavits deposed to by staff of
the board in litigation to which the board was party.’ (Footnotes omitted.)
[10] The situation at hand is materially distinguishable from Kouwenhoven where
the deponent and the commissioner were both police officers. Mr Zikalala who
commissioned the affidavit was involved in the litigation process for which the affidavit
was tendered. He was in clear terms an agent of the deponent. In my view, Mr Zikalala
was rendering a professional service in the litigation. In Kouwenhoven the deponent
and the Commissioner of Oaths were only connected to each other by employment,
as police officers. Mr Zikalala clearly had a financial interest in the process and
possible outcome of the litigation. The applicants’ argument that Mr Zikalala was a
mere correspondent attorney, assumed a rather simplistic approach. It failed to
appreciate the professional role of a correspondent attorney in the entire value chain
and as a conduit of efficient and effective co-ordination of the litigation process.
[11] Uniform rule 6(5) (b) rules requires an applicant in motion proceedings to
appoint a physical address within a specific distance of the registrar’s office and
electronic contact details to ensure fair, transparent, and efficient service of
documents.
[12] Various courts have expressed their observations on the value of
correspondent attorneys. Most recently, in Bandara Investments CC and Another v
Palmer and Others, the SCA observed that: 7
Palmer and Others, the SCA observed that: 7
‘Even where instructions are conveyed electronically, the attorney must still read and
understand them, identify the nature of the relief sought, appreciate the procedural posture of
the matter, and take the necessary steps to advance the client’s case. In that sense, the work
for which the fee is allowed is professional in character and not merely clerical.’
7 Bandara Investments CC and Another v Palmer and Others [2026] ZASCA 85 para 27.
7
In this regard the SCA was evaluating the permissible fees charged by correspondent
attorneys, in view of the significance of their role.
[13] In Van der Burgh v Guardian National Insurance Co Ltd the court stated:8
‘…the attorney of record generally performs an extremely valuable function in litigation which
goes far beyond him merely operating as a “postbox” and indexing and paginating the papers
and, if he is unable to deal with the problems of the nature of those which arose in casu due
to the terms of the mandate extended to him by his correspondent from another centre and
the matter is therefore postponed, the litigant, who engaged the correspondent should, as a
general rule, bear the costs occasioned thereby.’
[14] In view of the fact that Mr Zikalala was a legal practitioner makes it also
imperative to reflect on the sentiments of the SCA in Kouwenhoven and its discussion
of the judgment of Papenfus v Transvaal Board for the Development of Peri -Urban
Areas.9 The court in Papenfus had concluded that reg 7(1) did not preclude the legal
adviser from acting as commissioner of oaths because she did not have an interest in
the matter.10 However, the circumstances of this case are vastly different to Papenfus,
firstly because Mr Zikalala, as an attorney played a clearly defined professional role
as set out in rule 6(5)(b); secondly, he had a direct financial interest in how the matter
was litigated and ultimately presented in court.
[15] Accordingly, the highlighted characteristics above render the applicants’
reliance on the lack of interest difficult, if not impossible to sustain. The applicants’
inclination to downplay the significance of the correspondent attorney in its litigation
fails to pass scrutiny. Therefore, the commissioning of the founding affidavit by Mr
Zikalala who clearly had an interest within the meaning of reg 7(1) rendered it
inadmissible as evidence in support of the relief sought by the applicants in their notice
inadmissible as evidence in support of the relief sought by the applicants in their notice
of motion. The affidavit ought to be declared pro non scripto and disregarded.
8 Van der Burgh v Guardian National Insurance Co Ltd 1997 (2) SA 187 (E) at 191C-D.
9 Papenfus v Transvaal Board for the Development of Peri-Urban Areas 1969 (2) SA 66 (T).
10 Kouwenhoven para 31.
8
Alibi lis pendens
[16] Although the finding above may be dispositive of the matter, it is still necessary
to consider the other points in limine raised.
[17] On 26 February 2026, and under Case No: 2026-041716, at the instance of the
applicants; where the same respondents appeared, an urgent application served
before the Pietermaritzburg High Court. That application concerned questions which
related to the secondment of the second applicant and appointment of the fourth
respondent as the acting municipal managers at Umdoni Municipality. The application
was referred to the opposed roll by consent, without a consideration of the question
urgency. The matter is still pending.
[18] On 2 June 2026, another urgent application under Case No: 2026-125395, was
launched by MEC against the same respondents at the Pietermaritzburg High Court.
On 11 June 2026, it served before the court but was struck off the roll for lack of
urgency.
[19] The respondents asserted that the current application was an unwarranted
attempt by the applicants to revisits the question which arose in the initial urgent
applications. The applicants were dismissive of this submission and insisted that the
two earlier applications were irrelevant for the purposes of this application.
[20] The defence of alibi lis pendens succeeds if it is established that:11
(a) there is litigation pending;
(b) between the same parties; and
(c) based on the same cause of action.
[21] In Nestlé (South Africa) (Pty) Ltd v Mars Inc,12 the SCA held that:
11 Herbstein and Van WinsenThe Civil Practice of the High Courts and Supreme Court of Appeal of
South Africa 5 ed (2009) at 311.
12 Nestlé (South Africa) (Pty) Ltd v Mars Inc 2001 (4) SA 542 (SCA) para 17.
9
‘There is room for the application of that principle only where the same dispute, between the
same parties, is sought to be placed before the same tribunal (or two tribunals with equal
competence to end the dispute authoritatively). In the absence of any of those elements there
is no potential for a duplication of actions.…’
[22] In casu, it is uncontested that the parties, namely the applicants being the MEC
and Mr Nhlakanipho Zulu, and the respondents being the Umdoni Local Municipality
and its Municipal Council, including the fourth respondent are the same parties in the
pending litigation under Case No: 2026 -041716 which last served before the
Pietermaritzburg High Court. In addition, Case No: 2026 -125395 which also served
before court on 21 June 2026, involving the same parties was heard and struck off the
roll for lack of urgency.
[23] It has also been demonstrated without any contestation that the cause of action
and/or the subject matter of these cases concerned the apparent acrimony that is
unfolding between the MEC and the respondents over the post of the acting municipal
manager. The questions arising from these three applications revolve around the
suitability or lack thereof of the second applicant and/or the fourth respondent.
[24] Linked to the above, is the question of whether the matter is urgent, which I
propose to address here below.
Urgency
[25] On 19 August 2026, the Speaker called a special meeting, without a specified
agenda, which was scheduled for 20 August 2026. Shortly before the meeting
commenced, the Speaker sent out a notice of the cancelation of the meeting. In protest
the councillors who had already arrived held the meeting, anyway. The representative
of the MEC was also in attendance. The meeting resolved to rescind the resolution of
5 August 2026, where the acting appointment of the fourth respondent was terminated.
Effectively, they reinstated him to commence duty on 21 August 2026. Th e MEC
Effectively, they reinstated him to commence duty on 21 August 2026. Th e MEC
considered that the manner in which this meeting was held and its resolution were
unlawful.
10
[26] On 26 August 2026, the MEC launched the present application on an urgent
basis, approximately six days after the meeting in question. The certificate of urgency
was signed on 27 August 2026, and the applicants’ counsel enrolled the matter for
hearing on 3 September 2026, a further six days thereafter. The MEC contended that
urgent intervention was warranted because the decision taken on 20 August 2026 had
allegedly precipitated a state of uncertainty, disorder, and lawlessness within the
Umdoni Municipality. He further asserted that, in terms of his constitutional obligations,
he bears responsibility for monitoring, supervising, and reviewing the conduct and
functioning of local government institutions.
[27] According to the respondents, the applicants’ failure to act expeditiously upon
becoming aware of the incident which triggered this application is fatal to their case
for urgency. The respondents also asserted that the applicants have failed to provide
any meaningful explanation for the delay in launching this application.13
[28] Rule 6(12) empowers the court to hear urgent applications. It reads:
‘Where an application is not brought within the periods prescribed by these rules, the registrar
or a judge may, on application, enrol it as one of urgency.’
Rule 6(12) (b) requires an applicant to explicitly set forth the circumstances which
render the matter urgent, and why substantial redress cannot be obtained at a hearing
in due course. As stated in East Rock Trading 7 (Pty) Ltd and Another v Eagle Valley
Granite (Pty) Ltd and Others:14
‘…The question of whether a matter is sufficiently urgent to be enrolled and heard as an urgent
application is underpinned by the issue of 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 the normal course laid down by the rules it will not obtain substantial
redress.’
redress.’
[29] The applicants elected not to disclose what in their opinion or the circumstances
which rendered the matter urgent. The MEC only stated that his urgent intervention
13 See paras 25-28 of the answering affidavit.
14 East Rock Trading 7 (Pty) Ltd and Another v Eagle Valley Granite (Pty) Ltd and Others [2011]
ZAGPJHC 196 para 6.
11
became necessary upon the decision taken on 20 August 2026 which created a
chaotic situation and lawlessness at the Umdoni Municipality. He did not explain what
factors occasioned his alleged urgency or in what respect the decision of the
respondents implicated rule 6(12).
[30] If the applicants considered their intervention to be necessary, they were also
required to set out why, in their view, substantial redress could not be obtained at a
hearing in due course. They made no attempt to address this requirement. This
omission is particularly significant given the unexplained lapse of approximately two
weeks between the impugned decision and the applicants' decision to approach the
court. If the relief sought was indeed so urgent as to warrant immediate intervention,
the applicants were required to explain why s ubstantial redress would not be
obtainable in the ordinary course. None was forthcoming; they furnished no such
explanation.
[31] In this regard, I am in agreement with the respondents’ contention that the
applicants’ failure to act with the requisite expedition upon becoming aware of the
events giving rise to this application is fatal to their claim of urgency. In the
circumstances, the applicants have failed to establish facts warranting a departure
from the ordinary procedures prescribed by the rules of court and have not
demonstrated that the requirements of rule 6(12) have been satisfied.
Conclusion
[32] Accordingly, the applicants’ defective founding affidavit had the consequence
that the evidence of the MEC was inadmissible, leaving the notice of motion bereft of
any factual basis upon which relief sought could properly be grounded. In these
circumstances, the application is unsustainable. Equally, the respondents’ alibi lis
pendens defence does not avail the applicants. In addition, the applicants have failed
to demonstrate facts justifying a departure from the ordinary procedures of this court
or warranting the exercise of its urgent intervention.
or warranting the exercise of its urgent intervention.
Order
[33] Therefore, the following order is made:
1. The application is struck off the roll.
13
CASE INFORMATION
FOR APPLICANT(S): MR DICKSON SC
INSTRUCTED BY SANDILE DLOMO INC
FOR RESPONTENT(S): MR RALL
MR CHRISTISON
INSTRUCTED BY SEETHAL ATTORNEYS
DATE HEARD: 03 SEPTEMBER 2026
DATE DELIVERED: 09 SEPTEMBER 2026