Gcora and Others v Nelson Mandela Bay Municipality and Others (1414/16) [2016] ZAECPEHC 55 (30 August 2016)

Gcora and Others v Nelson Mandela Bay Municipality and Others (1414/16) [2016] ZAECPEHC 55 (30 August 2016)

The applicants, being unrehabilitated insolvents, have been divested of their member's interests and lack standing to represent the close corporation or litigate in their personal capacities. They are not parties to the review application and have not applied to be joined, thus cannot invoke Rule 30 or Rule 30A. The Metro's review application was issued within the time prescribed by the prior court order, and no time limit was set for service. Section 41 of the Constitution and the Inter-Governmental Relations Framework Act do not apply to the Public Protector, so the Metro was not required to take further steps in terms of cooperative governance. The application is dismissed on all...

Citation
[2016] ZAECPEHC 55
Parties
Applicant: Sipho Gcora; Applicant: Khuselwa Gobo-Gcora; Applicant: Gobo Gcora Construction and Project Management CC; Respondent: Nelson Mandela Bay Municipality; Respondent: Public Protector of South Africa
Court
Eastern Cape High Court, Port Elizabeth
Jurisdiction
South Africa
Judgment Date
30 August 2016
Case Number
1414/16
Procedural Posture
Urgent Application / Application to Set Aside Review Application and for Contempt; Interlocutory Application for Leave to File Supplementary Affidavit
Outcome
Application dismissed with costs, including costs of two counsel and the application for leave to file the supplementary affidavit. Judgment referred to the Director of Public Prosecutions for consideration of contempt.
Judges
C Plasket
Legal Topics
Standing of Insolvent, Irregular Proceedings, Contempt of Court Order, Cooperative Governance, Remedial Action by Public Protector
Civil Procedure Constitutional Law Standing of Insolvent Irregular Proceedings Contempt of Court Order Cooperative Governance Remedial Action by Public Protector

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Parties

Sipho Gcora

Applicant

Khuselwa Gobo-Gcora

Applicant

Gobo Gcora Construction and Project Management CC

Applicant

Nelson Mandela Bay Municipality

Respondent

Public Protector of South Africa

Respondent

Procedural Posture

Urgent Application / Application to Set Aside Review Application and for Contempt; Interlocutory Application for Leave to File Supplementary Affidavit

Legal Issues

  1. 1 Do the applicants have standing to bring the rule 30/rule 30A application against the Metro's review application?
  2. 2 Was the review application instituted irregularly or in contempt of a prior court order?
  3. 3 Did the Metro comply with its obligations under section 41 of the Constitution regarding inter-governmental relations?

Ratio Decidendi

The applicants, being unrehabilitated insolvents, have been divested of their member's interests and lack standing to represent the close corporation or litigate in their personal capacities. They are not parties to the review application and have not applied to be joined, thus cannot invoke Rule 30 or Rule 30A. The Metro's review application was issued within the time prescribed by the prior court order, and no time limit was set for service. Section 41 of the Constitution and the Inter-Governmental Relations Framework Act do not apply to the Public Protector, so the Metro was not required to take further steps in terms of cooperative governance. The application is dismissed on all...

Court Disposition

Application dismissed with costs, including costs of two counsel and the application for leave to file the supplementary affidavit. Judgment referred to the Director of Public Prosecutions for consideration of contempt.

Orders

  • The application is dismissed with costs, including the costs of the application for leave to file the supplementary affidavit, and the costs of two counsel.
  • The Registrar is requested to furnish a copy of this judgment to the Director of Public Prosecutions, Port Elizabeth, and to bring her attention to paragraphs 15 to 22 thereof.