Koingnaas Belastingbetalersvereniging v Kamiesberg Local Municipality and Another (2609/2021) [2024] ZANCHC 111 (11 October 2024)

IN THE HIGH COURT OF SOUTH AFRICA

NORTHERN CAPE DIVISION, KIMBERLEY

Case No: 2609/2021

Heard:

10/09/2024

Date available: 11/10/2024

In the matter between:

KOINGNAAS BELASTINGBETALERSVERENIGING Applicant

and

KAMIESBERG LOCAL MUNICIPALITY First Respondent

RUFUS CORMARCO BEUKES

Second Respondent

In re:

KAMIESBERG LOCAL MUNICIPALITY First Respondent

RUFUS CORMARCO BEUKES

Second Respondent

NAMAKWA DISTRICT MUNICIPALITY

Third Respondent

MEC FOR ENVIRONMENTAL AFFAIRS,

NORTHERN CAPE

Fourth Respondent

MINISTER OF HUMAN SETTLEMENT, WATER

AND SANITATION

Fifth Respondent

MINISTER OF ENVIRONMENTAL AFFAIRS Sixth Respondent

MEC FOR LOCAL GOVERNMENT

NORTHERN CAPE

Seventh Respondent

MINISTER OF COGHSTA

Eighth Respondent

MINISTER OF JUSTICE ANDCONSTITUTIONAL

DEVELOPMENT

Ninth Respondent

KAMIESBERG LOCAL MUNICIPALITY

First Applicant

THE MUNICIPAL MANAGER OF THE KAMIESBERG

LOCAL MUNICIPALITY

Second Applicant

KOINGNAAS BELASTINGBETALERSVERENIGING

First Respondent

JOHAN GRÄBE

Second Respondent

JUDGMENT: APPLICATION FOR LEAVE TO APPEAL

Mamosebo ADJP

[1] This is an application in terms of s 17(1)(a)(i) and (ii) of the Superior Courts Act 10 of 2013 for leave to appeal to the Supreme Court of Appeal (SCA) against the whole judgment and order I delivered on 16 February 2024. Koingnaas Belastingbetalersvereniging, (KBBV) the applicant in this matter, contends that the appeal would have a reasonable prospect of success or there are some or other compelling reason why the appeal should be heard.

[2] The SCA has definitively pronounced in Shoprite Checkers (Pty) Ltd v Bumpers Schwarmas CC and Others[1], that the court of first instance retains the duty to determine what Court is appropriate in the circumstances of the case. The Court must accordingly be satisfied that the jurisdictional requirements of s 17(6)(a)[2] of the Superior Courts Act are met.

[3] The test whether to grant leave to appeal is trite. In Caratco (Pty) Ltd v Independent Advisory (Pty) Ltd[3] the Court made these insightful remarks:

‘[2] In order to be granted leave to appeal in terms of s 17(1)(a)(i) and s 17(1)(a)(ii) of the Superior Courts Act an applicant for leave must satisfy the court that the appeal would have a reasonable prospect of success or that there is some other compelling reason why the appeal should be heard. If the court is unpersuaded of the prospects of success, it must still enquire into whether there is a compelling reason to entertain the appeal. A compelling reason includes an important question of law or a discrete issue of public importance that will have an effect on future disputes. But here too, the merits remain vitally important and are often decisive. Caratco must satisfy this court that it has met this threshold.’

[4] These are the grounds relied upon by the applicant in substantiation that the Court had erred:

(a) in upholding the point in limine that the applicant, KBBV, lacked standing (locus standi) in the counter-application;

(b) by failing to consider, alternatively fully, that I am bound by the judgments of the SCA (Van Staden NO and Another v Pro Whiz Group (Pty) Ltd 2019 (4) SA 532 (SCA) and Forestry South Africa v Minister of Human Settlements, Water and Sanitation and Others (777/2022) and Minister of Human Settlements, Water and Sanitation and Others v Forestry South Africa (824/2022) [2023] ZASCA 153 (15 November 2023);

(c) in finding that the requirements for a final interdict were met;

(d) in applying the principles of negotiorum gestio in considering the counter-application instead of necessity whereas the principles of negotiorum gestio were never argued;

(e) by failing to apply its mind to the case of the applicant as a sui generis form of necessity where government is failing to fulfil its constitutional mandate.

(f) in making a factual finding when referring to the R120 000 invoice to the municipality without following a procurement process and in conflict with s 217 of the Constitution;

(g) by failing to develop the common law to provide that the principle of necessity or a sui generis form of necessity applies where the National, Provincial, and Local Governments do not comply with their obligations in terms of the Constitution, particularly, the rights enshrined in the Bill of Rights;

(h) by failing to consider the ConCourt and SCA cases based on unlawful conduct of either sphere of government on the lack of accountability and transparency, Carmichele v Minister of Safety and Security and Another (Centre for applied legal studies intervening) [2001] ZACC 22; 2001 (4) SA 938 (CC); Minister of Safety and Security v Van Duivenboden 2002 (6) SA 431 (SCA); Minister of Safety and Security & Another v Carmichele 2004 (3) SA 305 (SCA);

[5] The applicant invoked Van Staden NO and Others v Pro-Wiz Group (Pty) Ltd[4] claiming that I either failed or neglected to consider that I am bound by the dicta of the SCA when it said:

‘[13] Furthermore, as a matter of principle, when a party is cited in legal proceedings it is entitled without more to participate in those proceedings. The fact that it was cited as a party gives it that right.’

[6] Significantly, and at the heart of this application, is that members purportedly representing the KBBV failed to comply with the requirements of its own constitution resultantly lacking the authority and the locus standi to defend the main application or bring the counter-application. Whereas in the main application KBBV is cited together with Gräbe, in the counter-application it is the only litigant. The contention by KBBV that the case of Van Staden supports it, is misplaced. The fact that KBBV failed to comply with its own constitution disqualifies it from participating in the main application as well as in the counter-application. Likewise, its failure to meet the requirements of its own constitution is dispositive of the counter-application since it was the only party cited therein. Gräbe in his personal capacity had the legal standing to oppose the main application but was not even cited in the counter-application and therefore not a party. In my

view para 13 in Van Staden does not assist the applicant. Gräbe relies on a resolution signed by himself authorising himself to act on behalf of KBBV. This cannot be as it is not what the KBBV constitution envisaged.

[7] Mr du Preez argued that I was wrong to regard rule 7 as applicable to the applicant. This argument must fail because of the pronouncements made by the SCA in Limpopo Provincial Council of the South African Legal Practice Council v Chueu Incorporated Attorneys and Others[5] when it said:

‘[21] Since then, the issue of authority has been dealt with in a number of decisions of this Court. The position is now established that the manner to challenge the authority of a litigant is to utilise rule 7(1) of the Uniform Rules of Court. The original understanding of rule 7(1) was that it only applied to the mandate provided to attorneys. However, this Court in Unlawful Occupiers, School Site v City of Johannesburg (Unlawful Occupiers), citing Eskom v Soweto City Council [1992 (2) SA 703 (W)] and Ganes and Another v Telecom Namibia Ltd[2004 (3) SA 615 (SCA], held that the remedy for a respondent who wishes to challenge the authority of a person allegedly acting on behalf of the purported applicant is provided for in rule 7(1).’

[8] Likewise, the contention made on behalf of the applicant that I ignored the sentiments expressed in Forestry South Africa v Minister of Human Settlements, Water and Sanitation and Others (777/2022) and Minister of Human Settlements, Water and Sanitation and Others v Forestry South Africa cannot be sustained. Paras 13, 14 and 15 in the main judgment are unequivocal that the challenge, which I endorsed, pertained to KBBV not having satisfied the requirements of its own constitution and not its standing recognised by s 38(e) of the Constitution of the country. It therefore follows that the contention by the applicant that I disregarded the SCA dicta as binding is ill-founded.

[9] The requirements for a final interdict are trite, see Setlogelo v Setlogelo[6]. Clearly, it was within the municipality’s rights to protect what falls within its sphere of authority and having satisfied the requirements, it was not a discretionary decision to grant the interdict. The municipality had shown a clear right which was being infringed by the KBBV, injury actually committed or reasonably apprehended, as KBBV had already started with the road repairs and threatened to take over the control of the water, sewerage, buildings and refuse works of Koingnaas. The absence of similar protection or any other ordinary remedy was also a consideration. The municipality has satisfied all these requirements. The attack on this ground stands to fail.

[10] KBBV is a voluntary association no different from any citizen entitled to the protection of the rights enshrined in the constitution. Why KBBV still persists in its attempt to usurp the functions of a local government under the pretext of a sui generis necessity, when the main judgment elaborately dealt with the local government legal framework, is difficult to fathom.

[11] A further submission for the applicant was that I dealt with s 139 of the Constitution, which was not argued. Mr du Preez, invoking Goedverwachting Farm (Pty) Ltd v Roux and Others[7] also argued that I had failed to heed to the caution by the SCA to only determine issues before me and not to create new factual issues. This submission is self-defeating. The applicants had, in their submissions, urged me to develop the common law and consider granting orders similar to, among others, Mafube[8], Unemployed People’s Movement[9], and Agri Eastern Cape[10]. Section 139 had to be considered. This Court has no power to authorise that KBBV or any disgruntled citizen to take over the running and functions of a municipality under the pretext of a sui generis form of necessity.

[12] It was further contended on behalf of the applicant that I have remained mum regarding how the municipality has spent the R21 million as pointed out earlier. Clearly, the applicant is missing the point that KBBV must first have the capacity to bring the application to court and either recognise the available legal framework to challenge the municipality or get its papers in order for the appropriate relief. KBBV’s approach is, in my view, putting the cart before the horse. To put it differently, KBBV wants to enter through the backdoor and demand a seat at the main table. This would amount to self-help that is impermissible.

[13] On the question of costs. There is no contradiction in terms in as far as the order of costs as claimed on behalf of the applicant is concerned. In respect of the interim interdict issued on 20 December 2021 it will be noted that I ordered Gräbe and KBBV to pay the costs thereof jointly and severally, the one paying the other to be absolved. Pertaining to the main and counter-application handed down on 16 February 2024, each party was ordered to bear their own costs. Simply put, Gräbe was a party in the interim and main application in his personal capacity. In the counter-application KBBV is the only cited party.

[14] I am not persuaded of the existence of any prospects of success in KBBV’s counter-application or that there is a compelling reason why an appeal should be entertained. There are no conflicting judgments pertaining to the development of a sui generis form of necessity which the applicant claims exists. I am mindful of the unintended chaos and anarchy that may ensue pertaining to governance in local authority government if the courts give their imprimatur for the relief sought. Leave is refused.

[15] The following order is made:

1. The application for leave to appeal is dismissed.

________________________

M.C. MAMOSEBO

JUDGE OF THE HIGH COURT

NORTHERN CAPE DIVISION

For the Applicant: Adv. MD du Preez SC assisted by Adv. Z.F. Kriel

Instructed by:

JC Kidson Attorneys.

c/o Haarhoffs Inc

For the Respondents: Adv. A.G. van Tonder

Instructed by:

Van de Wall Inc

[1] Shoprite Checkers (Pty) Ltd v Bumpers Schwarmas CC and Others 2003 (5) SA 354 (SCA) para 23

[2] Section 17(6)(a) stipulates (6) (a) If leave is granted under subsection (2) (a) or (b) to appeal against a decision of a Division as a court of first instance consisting of a single judge, the judge or judges granting leave must direct that the appeal be heard by a full court of that Division, unless they consider- (i) that the decision to be appealed involves a question of law of importance, whether because of its general application or otherwise, or in respect of which a decision of the Supreme Court of Appeal is required to resolve differences of opinion; or (ii) that the administration of justice, either generally or in the particular case, requires consideration by the Supreme Court of Appeal of the decision, in which case they must direct that the appeal be heard by the Supreme Court of Appeal.

[2] Section 17(6)(a) stipulates (6) (a) If leave is granted under subsection (2) (a) or (b) to appeal against a decision of a Division as a court of first instance consisting of a single judge, the judge or judges granting leave must direct that the appeal be heard by a full court of that Division, unless they consider-

(i) that the decision to be appealed involves a question of law of importance, whether because of its general application or otherwise, or in respect of which a decision of the Supreme Court of Appeal is required to resolve differences of opinion; or

(ii) that the administration of justice, either generally or in the particular case, requires consideration by the Supreme Court of Appeal of the decision, in which case they must direct that the appeal be heard by the Supreme Court of Appeal.

[3] Caratco (Pty) Ltd v Independent Advisory (Pty) Ltd 2020 (5) SA 35 (SCA) para 2

[4] Van Staden NO and Others v Pro-Wiz Group (Pty) Ltd 2019 (4) SA 532 (SCA) para 13

[5] Limpopo Provincial Council of the South African Legal Practice Council v Chueu Incorporated Attorneys and Others 2023 JDR 2704 (SCA); (459/2022) [2023] ZASCA 112 (26 July 2023)

[6] 1914 AD 221 at 227

[7] Goedverwachting Farm (Pty) Ltd v Roux and Others (641/2023) [2024] ZASCA 83 (31 May 2024) para 21

[8] Mafube Business Forum and Another v Mafube Local Municipality and Others (1969/2021) [2022] ZAFSHC 86 (28 April 2022) also reported as 2022 JDR 1236 (FB)

[9] Unemployed People’s Movement v Eastern Cape Premier and Others 2020 (5) BCLR 573 (ECG); also reported as 2020 (3) SA 562 (ECG)

[10] Agri Eastern Cape and Others v MEC: Department of Roads and Public Works and Others 2017 (3) SA 383 (ECG) also reported as [2017] 2 All SA 406 (ECG)