MEC for Co-operative Governance and Traditional Affairs, Free State v Metsimaholo Local Municipality and Others (1159/2020) [2020] ZAFSHC 251 (10 December 2020)

IN THE HIGH COURT OF SOUTH AFRICA

FREE STATE DIVISION, BLOEMFONTEIN

Case number: 1159/2020

In the matter between:

THE MEC FOR CO-OPERATIVE GOVERNANCE

AND TRADITIONAL AFFAIRS, FREE STATE

Applicant

And

METSIMAHOLO LOCAL MUNICIPALITY

1st Respondent

COUNCILLOR TA MOTAUNG

2nd Respondent

COUNCILLOR M NKHELOANE

3rd Respondent

COUNCILLOR PM MAHLAELA

4th Respondent

COUNCILLOR L FISHER

5th Respondent

COUNCILLOR MN MTSHALI

6th Respondent

COUNCILLOR FD MOSOKWENI

7th Respondent

COUNCILLOR NP MOKOENA

8th Respondent

COUNCILLOR FJ VAN DER MERWE

9th Respondent

COUNCILLOR JJ BARNARD

10th Respondent

COUNCILLOR SN MATWA

11th Respondent

COUNCILLOR G BURGER

12th Respondent

COUNCILLOR JJ GROBBELAAR

13th Respondent

COUNCILLOR LJ VAN HEERDEN

14th Respondent

COUNCILLOR ZV ZWANE

15th Respondent

COUNCILLOR P MOHAPI

16th Respondent

COUNCILLOR MT MBANA

17th Respondent

COUNCILLOR T MOFOKENG

18th Respondent

COUNCILLOR L TSOTETSI

19th Respondent

COUNCILLOR LL NHLAPO

20th Respondent

COUNCILLOR S MOTJEANE

21st Respondent

COUNCILLOR LEOTELA

22nd Respondent

COUNCILLOR TJ TAATS

23rd Respondent

COUNCILLOR ME MASEKO

24th Respondent

COUNCILLOR TM MOTLOUNG

25th Respondent

COUNCILLOR SL TSHONGWE

26th Respondent

COUNCILLOR MS POHO

27th Respondent

COUNCILLOR KB MOFOKENG

28th Respondent

COUNCILLOR JM MALINDI

29th Respondent

COUNCILLOR R MEYER

30th Respondent

SELLO JONAS MOKOENA

31st Respondent

MJ NDABA

32nd Respondent

MJ MKHEFA

33rd Respondent

MB OANYANE

34th Respondent

CC SCHEEPERS

35th Respondent

JUDGMENT – LEAVE TO APPEAL

JUDGMENT BY: CHESIWE, J

HEARD ON: The papers, as per the directive; with Heads of Arguments filed on 16 October and 23 October 2020 respectively

DELIVERED ON: 10 DECEMBER 2020

[1] This is an application for leave to appeal by the Fischer Group (the Respondents in the main action) against a judgment delivered by this court on 1 September 2020. The parties filed their respective heads of argument and the matter was considered as such on the papers in chambers. The parties are cited as in the court a quo. The applicant, 1st, 2nd, 26th, 28th, and 29th Respondents opposed the application for leave to appeal.

[2] The grounds of appeal are in essence that the court erred in finding that:

“1. The Honourable Lady, in her judgment erred in not dealing precisely and expressly with the most crucial and deciding issue “whether the Council Speaker has the powers to adjourn the Council meeting without Council approval.”

2. Her Ladyship misdirected herself by relying on the affidavit of Mr. Manele who was not authorized by the Council of Metsimaholo to act on its behalf.

3. Her Ladyship erred in not dealing with the point in limine raised in terms of Rule 7(1) of the Uniform Rules regarding authority of Mr. Manele.

4. Her ladyship misdirected herself by relying on an old authority, Makume case without giving regard to the recent and subsequent Supreme Court of Appeal case of Matshai.

5. Her Ladyship erred in relying on the unreported and old case of Van der Linde, 2018 without considering the recent case law of 2020.

6. Her Ladyship erred in not realizing that by granting the order sought, she condoned the illegal intervention of the Applicant to Metsimaholo Municipality which contravene section 139 (1)(b) of the Constitution.”

[3] I pause to mention that in the main action, the court had to determine whether the meeting that was held on 20 February 2020 at 15:10 was unlawful and invalid and/or whether the decisions or resolutions taken at that meeting were unlawful and invalid.

[4] I was not called upon to make a determination on the legislative process/powers of the Speaker to adjourn a Council meeting. The papers of the respondents were clear on the issues in dispute. The applicant correctly contends that the respondents argued their case outside of their pleadings, as the issues raised by the respondents were not in their answering affidavit.

[5] The answering affidavit of the Fischer Group made no mention of the evidence relating to the Speaker having no powers to close a meeting. The Fisher Group raised these issues in their supplementary heads of argument. It is trite that in motion proceedings the affidavits of the parties constitute the evidence as it stands and that the parties should stand by their affidavits and pleadings.

[6] The judgment dealt in detail in respect of the process of the meeting, to the extent of when and how the first meeting was closed and the continuation of the alleged second meeting. As correctly stated by the applicant, that the issue of Mr. Manele’s authority to institute the legal proceedings was not before me, nor was there a review application to set aside his appointment. Neither did I have to deal with whether his appointment was irregular and or invalid.

[7] The test to be applied in an application for leave to appeal is now regulated by section 17 of the Superior Courts Act 10 of 2013 (the Act). Section 17 provides that:

“(1) Leave to appeal may only be given where the judge or judges concerned are of the opinion that:

(a) (i) the appeal would have reasonable prospects of success, or

(ii) There is some other compelling reasons why the appeal should be heard including conflicting judgments on the matter under consideration.”

[8] Section 17 has changed the position somewhat in the test to be applied. Previously, an applicant was merely required to show that there is a reasonable possibility that a court, differently constituted, may come to a different conclusion than the court a quo. The test according to section 17 requires the applicant for leave to appeal, must convince the court on proper grounds that there are reasonable prospects. A mere possibility of success, an arguable case or one that it is not hopeless, is not enough. Based on the grounds as advanced by the Fisher Group, I am not convinced that another court sitting on appeal would come to a different conclusion.

[9] In an unreported matter of The Mont Chevaux Trust v Tina Goosen 18 2014 JDR LCC, Bertelsmann J said:

“It is clear that the threshold for granting leave to appeal against a judgment of a high court has been raised in the new Act. The former test whether leave to appeal should be granted was a reasonable prospect that another court might come to a different conclusion…

The use of the word ‘would’ in the new statute indicates a measure of certainty that another court will differ from the court whose judgment is sought to be appealed against.”

[10] The respondents’ argument as raised in the appeal application bare a repetition of the arguments in the court a quo, except the issue relating to the powers of the Council Speaker to adjourn the meeting. As indicated earlier, this was not the issue in dispute before me, as the Fischer Group relied on the matter of Makume and Another v Northern Free State District Municipality.[1] Makume dealt with the powers of the Speaker to convene a meeting. The Fischer Group argument on the pleadings remain the legality of the meeting of 20 February 2020 at 15:10.

[11] In Smith v S[2] the court dealt with the question of what constitutes reasonable prospects of success as follows:

“What the test of reasonable prospects of success postulates is a dispassionate decision, based on the facts on the law that a court of appeal could reasonably arrive at a conclusion different to that of the trial Court. In order to succeed, therefore, the appellant must convince tis court on proper grounds that he has prospects of success on appeal and that those prospects are not remote but have a realistic chance of succeeding. More is required to be established that that there is a mere possibility of success that the case is arguable on appeal or that the case cannot be categorized as hopeless. There must, in other words, be a sound, rational basis for the conclusion that there are prospects of success on appeal.”

[12] Indeed the threshold for granting leave to appeal has been raised and the requirements are stringent. In my view, the Fischer Group have not shown that another court would differ from the judgment in this matter, nor have they made out a case for the matter to be dealt with in terms of section 17(1)(a)(i) of the Superior Courts Act 10 of 2013. I am therefore not satisfied that this matter would have reasonable prospects of success on appeal.

[13] In the circumstances, the following order is made:

1. The application for leave to appeal is dismissed with costs. Such costs to include costs of two counsels on a scale between attorney and client.

2. No order as to costs against the First Respondent Group (1, 7, 26, 28 and 29)

__________

CHESIWE, J

Appearances:

On behalf of the Applicant: Adv. BS Mene SC with Adv. PS Mphuloane

Instructed by: The State Attorney

On behalf of the of the 2nd, 3rd, 4th, 5th, 6th, 8th, 19th, 20th, 21st, 22nd, 23rd, 24th, 25th, 31st, 32nd, 34th and 35th: Adv. ND Khokho

Instructed by: Fixane Attorneys

BLOEMFONTEIN

On behalf of the 1st, 7th, 26th, 28th & 29th Respondents: Mr. MJ Ponoane

Instructed by: Ponoane Attorneys

[1] [2003] ZAFSHC 36; [2003] ZAFSHC 15 (21 August 2003).

[2] 2012(1) SACR 567 (SCA) par [7].