Appolus and Others v Naledi Local Municipality and Others (UM199/2023) [2023] ZANWHC 214 (17 November 2023)

IN THE HIGH COURT OF SOUTH AFRICA

NORTH WEST DIVISION, MAHIKENG

CASE NUMBER: UM199/2023

612/2019 Reportable: YES/NO

Circulate to Judges: YES/NO

Circulate to Magistrates: YES/NO

Circulate to Regional Magistrates YES/NO

In the matter between:-

THABO APPOLUS 1st Applicant CLLR LORATO SETHLAKE 2nd Applicant CLLR LEBOGANG JACOBS 3rd Applicant CLLR VUYISWA MORAKILE 4th Applicant NELSON MONGALE N.O 5th Applicant

and

NALEDI LOCAL MUNICIPALITY 1st Respondent NALEDI LOCAL MUNICIPAL COUNCIL 2nd Respondent CLLR PGC GULANE N.O (Speaker) 3rd Respondent CLLR J GROEP N.O (Mayor) 4th Respondent MR MODISENYANE SEGAPO N.O (Newly appointed Municipal Manager) 5th Respondent THE MEC FOR COOPERATIVE GOVERNANCE AND TRADITIONAL AFFAIRS NORTH WEST PROVINCE 6th Respondent SOUTH AFRICAN LOCAL GOVERNMENT ASSOCIATION (SALAGA) 7th Respondent PROVINCIAL TREASURY: NORTH WEST PROVINCE 8th Respondent

This judgment is handed down electronically via e-mail to the representatives of the parties, due to the urgent nature there-of. The date of the handing down of the judgment is deemed to be 17 November 2023.

ORDER

The following order is made:

i) The non-compliance of the Uniform Rules of Court is condoned in terms of Rule 6(12) and the matter is heard on an urgent basis.

ii) The judgment granted on 19 September 2023 by Reid J is enforced in terms of section 18(3) of the Superior Courts Act 10 of 2013 pending the appeal process instituted by the respondents on 29 September 2023.

iii) The respondents who opposed the application (the 1st to 5th respondents) is ordered to pay the costs of the application, jointly and severally, the one paying the other to be absolved, on a scale of party and party which costs is to include the instruction of two (2) counsel.

JUDGMENT: URGENT APPLICATION

SECTION 18(3) SUPERIOR COURTS ACT

Introduction:

[1] This application has been launched on an urgent basis for the following relief (as paraphrased):

1.1. Condoning the non-compliance of the Uniform Rules of Court in terms of Rule 6(12) and finding that the matter is urgent;

1.2. That the judgment granted on 19 September 2023 by Reid J be enforced in terms of section 18(3) of the Superior Courts Act 10 of 2013 (the Superior Courts Act) pending the appeal process instituted by the respondents on 29 September 2023;

1.3. That the respondents who oppose the application pay the costs on an attorney and own client scale which costs is to include the instruction of two (2) counsel.

[2] The judgment granted on 19 September 2023 which is the judgment sought to be enforced in this application, was done under case number UM 53/2023, and will be referred to “the judgment”. Save for one NELSON MONGALE N.O (the former Acting Municipal Manager) who is cited as the 3rd respondent in the proceedings under case number UM 53/2023, the parties in both applications are identical.

[3] In the judgment, the following orders were made:

3.1. That the appointment of the 5th respondent Mr Modisenyane Segapo as Municipal Manager from 10 March 2023 is set aside as invalid and unlawful.

3.2. That the first and second respondents are ordered to re-advertise the position of the Municipal Manager and commence the recruitment process de novo.

3.3. That the respondents which opposed the application are ordered to pay the costs of the applicant individually and severally, the one paying the other to be absolved, on a scale as between party and party.

3.4. That the costs are to include the cost of two (2) counsel where so instructed.

[4] The 2nd applicant is the mandated deponent to the founding affidavit. Where I refer to “applicant” in this judgment, I refer to all the applicants collectively. The applicant states that the 5th respondent continued to render his services as Municipal Manager, despite the adverse judgment as set out above. The current position is that the 5th respondent proceeds to render services as the Municipal Manager.

[5] On 29 September 2023 the appeal process, as instituted by the respondents’ ex lege suspends the execution of the judgment.

Urgency

[6] The 5th respondent opposed the application in his official capacity as Municipal Manager. He states that he was appointed as such on 10 March 2023 and his appointment is due to terminate after a period of 5 years from the aforesaid date, subject to the provisions

of section 57(6)(a) of the Municipal Systems Act 32 of 2000, as amended. Due to his position of Municipal Manager, the 5th respondent deposes to the opposing affidavit on behalf of the 1st to 5th respondent, and attaches the confirmatory affidavits of these respondents.

[7] In disputing the urgency of the application, the 5th respondent inter alia states:

“15. At the outset, I contend that the applicants have not demonstrated reasons why, even though the judgment and order of judge Reid was communicated to the parties on 19 September 2023, it took the applicants since then (19 September 2023) until October 2023, within which to bring their application in terms of section 18(3) of the Superior Courts Act.”

vi) The respondents who opposed the application (the 1st to 5th respondents) is ordered to pay the costs of the application, jointly and severally, the one paying the other to be absolved, on a scale of party and party which costs is to include the instruction of two (2) counsel.

FMM REID

JUDGE OF THE HIGH COURT

NORTH WEST DIVISION MAHIKENG

DATE OF HEARING: 19 OCTOBER 2023

DATE OF JUDGMENT: 17 NOVEMBER 2023

APPEARANCES:

FOR THE 1ST TO 5TH APPLICANTS: ADV CZ MUZA

WITH ADV NM MPYA

INSTRUCTED BY: MABAPA ATTORNEYS INC

REF: MAT0015/03/2023

C/O MOKONE ATTORNEYS INC

10 TILLARD STREET

MAHIKENG

TEL: 083 516 3083

084 848 1229

E-MAIL: info@mokoneinc.co.za

mabapaattorneys@gmail.com

amuza@mabapainc@gmail.co.za

REF: A.0006/CIV

FOR 1st TO 5th RESPONDENTS: ADV E MOKUTU SC

WITH ADV JH MOLLENTZE

INSTRUCTED BY: DU PLESSIS VIVIERS INC

C/O SMIT NEETHLING

WARREN STREET MAHIKENG

TEL: 018 – 381 0180-3

REF: NICOLENE / LEEZIL