Makhado Local Municipality v Makhavhu and Another (Leave to Appeal) (7776/2024) [2024] ZALMPPHC 187 (21 November 2024)
- Citation
- [2024] ZALMPPHC 187
- Status
- Judgment
- Jurisdiction
- South Africa
- Court
- Limpopo High Court, Polokwane
- Panel
- Gaisa
- Case number
- 7776/2024
More details
- Court
- Limpopo High Court, Polokwane
- Panel
- Gaisa
- Case number
- 7776/2024
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The court found that, applying the test in section 17(1)(a) of the Superior Courts Act and the principle from Mkhitha, there may be reasonable prospects of success on appeal limited to orders 5 and 6, as these were not specifically prayed for in the notice of motion and may have exceeded the relief sought. The remaining orders were within the scope of the relief sought and necessary to give effect to the main relief. Accordingly, leave to appeal is granted only in respect of orders 5 and 6, and refused for the rest.
Court disposition
Leave to appeal granted to the Full Court of the Limpopo Division, limited to orders 5 and 6; application for leave to appeal against the remaining orders dismissed; costs to be costs in the cause unless the applicant does not proceed with the appeal.
Orders
- Leave to appeal is granted to the Full Court of the Limpopo Division, limited to orders 5 and 6 of the judgment delivered on 18 September 2024.
- The application for leave to appeal against the remaining orders is dismissed.
- The cost of the appeal is to be costs in the cause, unless the applicant does not proceed with the appeal, in which case the cost is to be paid by the applicant.
02
Material facts
Parties
Makhado Local Municipality
Applicant Counsel: Adv. U B MakuyaPaul Makhavhu
Respondent Counsel: Adv. Z D MalulekePauline Makhavhu
Respondent03
Procedural history
Posture
Leave to Appeal / Application for Leave to Appeal Against Judgment and Orders Delivered on 18 September 2024.
04
Questions and positions
Legal issues
- 01
Whether there are reasonable prospects that another court would reach a different conclusion regarding orders 5 and 6 of the judgment delivered on 18 September 2024.
- 02
Whether orders 5 and 6 exceeded the relief specifically prayed for in the notice of motion.
Party arguments
- Applicant
- The applicant contended that orders 5 and 6 of the judgment were not specifically prayed for in the notice of motion and thus exceeded the relief sought. The applicant argued that there are reasonable prospects of success on appeal regarding these orders, as they directed a review of account consolidation processes and leave to approach the court on supplemented papers, which were not part of the original application.
- Respondent
- The respondents argued that all orders granted were necessary to give effect to the main relief regarding electricity disconnection and fell within the scope of the relief sought. They maintained that the applicant failed to demonstrate a reasonable prospect that another court would reach a different conclusion, especially as the core relief was properly granted.
05
Court’s reasoning
Legal principles
- 01
Section 17(1)(a) of the Superior Courts Act 10 of 2013
Leave to appeal must not be granted unless there is a reasonable prospect of success, not merely an arguable case or a possibility of success.
- 02
MEC for Health, Eastern Cape v Mkhitha and Another (1221 of 2015) [2016] ZASCA 176 (25 November 2016)
The focus in an application for leave to appeal must be on the orders made, not the reasoning or style of the judgment.
06
Ratio, limits and disposition
Ratio decidendi
The court found that, applying the test in section 17(1)(a) of the Superior Courts Act and the principle from Mkhitha, there may be reasonable prospects of success on appeal limited to orders 5 and 6, as these were not specifically prayed for in the notice of motion and may have exceeded the relief sought. The remaining orders were within the scope of the relief sought and necessary to give effect to the main relief. Accordingly, leave to appeal is granted only in respect of orders 5 and 6, and refused for the rest.
Obiter and limits
- Counsel is reminded that applications for leave to appeal should focus on the orders made, not the judgment's reasoning or style.
- Appellate scrutiny is warranted where orders may exceed the relief specifically prayed for, but the core relief must remain protected.
Court disposition
Leave to appeal granted to the Full Court of the Limpopo Division, limited to orders 5 and 6; application for leave to appeal against the remaining orders dismissed; costs to be costs in the cause unless the applicant does not proceed with the appeal.
- Leave to appeal is granted to the Full Court of the Limpopo Division, limited to orders 5 and 6 of the judgment delivered on 18 September 2024.
- The application for leave to appeal against the remaining orders is dismissed.
- The cost of the appeal is to be costs in the cause, unless the applicant does not proceed with the appeal, in which case the cost is to be paid by the applicant.
Source and reliance status
Limpopo High Court, Polokwane
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
Limpopo High Court, Polokwane
Judgment
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
LIMPOPO DIVISION,
POLOKWANE
CASE NO: 7776/2024
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO THE JUDGES: YES/NO
(3) REVISED.
DATE: 21/11/2024
SIGNATURE:
In the matter between:
MAKHADO
LOCAL MUNICIPALITY
Applicant
and
PAUL
MAKHAVHU
First Respondent
PAULINE
MAKHAVHU
Second Respondent
JUDGMENT
ON APPLICATION FOR LEAVE TO APPEAL
GAISA
AJ
INTRODUCTION
[1] This is an application for leave to appeal against the judgment and orders delivered on 18 September 2024. The Applicant (Makhado Local Municipality) seeks leave to appeal to the full court, alternatively to the Supreme Court of Appeal.
LEGAL
FRAMEWORK
[2] The test for leave to appeal is set out in section 17(1)(a) of the Superior Courts Act 10 of 2013. As emphasized in MEC for Health, Eastern Cape v Mkhitha and Another,[1] leave to appeal must not be granted unless there truly is a reasonable prospect of success.
[3] An applicant must convince the court on proper grounds that there is a reasonable prospect or realistic chance of success on appeal. A mere possibility of success, an arguable case, or one that is not hopeless, is not enough. There must be a sound, rational basis to conclude that there is a reasonable prospect of success on appeal.
ANALYSIS
[4] At the outset, counsel is reminded that an application for leave to appeal must focus on the orders made rather than the judgment's reasoning or style of writing. This principle appears particularly relevant given counsel's extensive criticism of the judgment's reasoning rather than demonstrating why another court would reach a different conclusion on the actual orders granted.
[5] The question before this court is whether there are reasonable
prospects that another court would (not merely might) come to a different conclusion regarding the orders granted.
[6] Having considered the grounds raised by the Applicant, particularly regarding orders 5 and 6 of the judgment which were not specifically prayed for in the notice of motion, I find that there may be reasonable prospects of success on appeal limited to these specific orders. These orders directed:
6.1 the review of account consolidation processes;
6.2 leave to approach the court on supplemented papers.
[7] While the other orders fell within the scope of the relief sought and were necessary to give effect to the main relief regarding electricity disconnection, orders 5 and 6 may have exceeded what was specifically prayed for in the notice of motion.
FINDING
[8] Applying the principle from Mkhitha that there must be a sound, rational basis to conclude that there is a reasonable prospect of success on appeal I find it prudent to:
8.1 grant leave to appeal on the limited grounds relating to orders 5 and 6;
8.2 maintain the other orders which were clearly within the scope of relief sought.
[9] This approach allows appellate scrutiny of whether these specific orders exceeded the court's powers while protecting the core relief granted to the applicants.
ORDER
1. Leave to appeal is granted to the Full Court of the Limpopo Division, limited to orders 5 and 6 of the judgement delivered on 18 September 2024.
2. The application for leave to appeal against the remaining orders is dismissed.
3. The cost of the appeal is to be cost in the cause, unless the applicant does not proceed with the appeal, in which case the cost is to be paid by the applicant.
N
GAISA
Acting Judge
High Court of South Africa
Limpopo Division, Polokwane
APPEARANCES
FOR THE
APPLICANT
: ADV. U B MAKUYA
INSTRUCTED BY
: DABISHI, THAMBELENI INC c/o
:
TSHIGOMANA ATTORNEYS
: mbm@dninc.co.za
: admin5@dninc.co.za
FOR THE 1ST
RESPONDENT : MR T MALULEKE (HEADS OF ARGUMENT BY
ADV. Z D MALULEKE)
: MULULEKE (T) ATTORNEYS c/o
LEDWABA
M ATTORNEYS
: reception@m-tattorneys.co.za
: terrancemaluleke@gmail.com
: ledwaba@ledwabamattorneys.com
DATE OF
HEARING
:14 November 2024
DATE OF
JUDGEMENT : 21 November 2024
This judgment is handed down electronically by circulation to the parties’ representatives by email. The date and time for hand-down of the judgment is deemed to be 21 NOVEMBER 2024.
[1] (1221 of 2015) [2016] ZASCA 176 (25 November 2016)
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