Minister: Co-Operative Governance and Traditional Affairs and Others v Insika Foundation NPC (2024-054854) [2024] ZAGPPHC 1139 (1 November 2024)

IN THE HIGH COURT OF SOUTH AFRICA

(GAUTENG DIVISION, PRETORIA)

Case No. 2024-054854

(1) REPORTABLE: NO

(2) OF INTEREST TO OTHERS JUDGES: NO

(3) REVISED

DATE: 08 NOVEMBER 2024

SIGNATURE

In the matter between:

THE MINISTER: CO-OPERATIVE GOVERNANCE AND TRADITIONAL AFFAIRS First Applicant THE DIRECTOR GENERAL: CO-OPERATIVE GOVERNANCE Second Applicant ACTING DDG: COMMUNITY WORKS PROGRAMME Third Applicant THE CHIEF DIRECTOR: CWP FINANCE CO-OORDINATOR Fourth Applicant THE DIRECTOR: CWP IMPLEMENTATION FOR KWAZULY NATAL Fifth Applicant and INSIKA FOUNDATION NPC Respondent

This matter was heard virtually (Ms teams) and disposed of in terms of the directives issued by the Judge President of this Division. The judgment and order are accordingly published and distributed electronically.

JUDGMENT

KUBUSHI J

[1] The applicants seek an order to be granted leave to appeal to the full court of the Gauteng Division of the High Court, Pretoria, alternatively to the Supreme Court of Appeal, against the Order handed down by this court, on 12 July 2024.

[2] The application for leave to appeal (“the application”) emanates from the urgent application that was launched by the respondent in which the respondent sought an order declaring unlawful the decision of the first applicant refusing to pay the invoices submitted to it by the respondent for project management fees for the month of April 2024, in terms of a Service Level Agreement (“the SLA”) entered into by the first applicant and the respondent. Apart, from the declarator, the respondent also sought an interim interdict to stop the first applicant from making payments directly to people who were not screened and recruited by the respondent, and some other ancillary relief. The urgent application, as such, revolved around the SLA.

[3] The three main issues sought to be determined in the urgent application, namely, whether the application should serve in the urgent court; whether the respondent was entitled to declaratory relief as prayed for in the Notice of Motion - underlying this question, was whether the respondent breached the provisions of Clause 16.13 of the SLA; and, whether the respondent was entitled to the interdictory relief it sought, were all determined in favour of the respondent. The applicants are aggrieved by the decision taken in the urgent court and have now instituted the application for leave to appeal.

[4] The applicants have, in the application for leave to appeal and in their heads of argument, raised numerous grounds to be allowed leave to appeal the order granted against them. Although the applicants’ counsel stressed the applicant’s reliance on all the grounds raised in their application as well as their heads of argument, counsel, however, in court, argued two grounds, the determination of which are, dispositive of the application.

[5] The first ground argued is that of urgency. The applicants’ contention is that there was no basis for urgency because the respondent failed in its founding affidavit to plead urgency and to provide the reasons why it would not in due course find substantial redress. It was argued that the averments that were required in terms of rule 6(12), rendering the matter urgent, were not made out in the papers. Counsel for the applicants emphasised that the rules of court are there to guide the parties and are indirectly peremptory in nature and should always be observed. The contention in this regard being that the court misdirected itself in deciding the application on urgency when the respondent had not complied with the provisions of rule 6(12).

[6] Counsel further argued that the court ought to have considered that there was alternative remedy for the respondent in that the funds that the respondent was to use to pay the employees in question belonged to the first applicant and not the respondent, who was the implementing agent. According to counsel, the respondent could have paid the salaries of the employees and still have been able to proceed with the project. There would not have been any irreparable harm suffered by the respondent as the respondent would have been able to institute legal proceedings against the first applicant for damages, if any.

[7] Furthermore, counsel argued that the court should not have considered the duration of the contract as determinative of the urgency of the matter. The court ought to have instead taken into account that the SLA had a dispute resolution process which the respondent should have followed rather than running to court, and that by coming to court before following that process, the respondent brought the urgent application prematurely, which is a fact that was ignored by the court.

[8] Besides, so counsel argued, the matter had lost its urgency, if any existed previously, when the respondent removed the matter from the roll after the previous judge (Potteril J) had left the door open for the respondent to proceed with the matter on an urgent basis.

[9] The second point argued was that the court erred in concluding that Clause 6.13 of the SLA required no interpretation. The court ought to have found that Clause 6.13 properly interpreted required the respondent to absorb the employees as the clause was included in the SLA in the spirit of trying to safe jobs. The personnel in question were in fact the respondent’s previous employees who were kept by the first applicant when the respondent’s past agreement with the first applicant ended, the respondent would, as such, not have been prejudiced if it had absorbed them.

[10] The issues raised by the applicants in this application were all dealt with in the main judgment of this court and there is, therefore, no need for the court to repeat them in this judgment. The issue of urgency, as the respondent’s counsel argued, is a matter for the discretion of the court. As decided in Lubambo v Presbyterian Church of Africa[1], a decision as to whether the case should be heard as a matter of urgency, amounts to the exercise of a judicial discretion. Such

discretion arises from the wording of rule 6(12)(a), itself. It is trite law that an Appellant Tribunal will not generally interfere

with the exercise of a judicial discretion, unless it is shown that the discretion was exercised capriciously or without grounds.

[11] The issue of urgency, in this matter, was dealt fully and comprehensively, in paragraphs 20 to 33 of the main judgment and in exercising its discretion the court decided to hear the application as a matter of urgency. All the arguments taken by the parties were fully dealt with by the court leaving no room of any suggestion that the court exercised its discretion capriciously or without any grounds.

[12] Over and above that in coming to the conclusion it did on urgency, the court relied also on the decision taken in Cekeshe and Others,[2] where it was held that that it is

‘. . . the substance of the affidavit, and not its form, which will weigh with a Court; if an affidavit sets out facts upon which a Court can decide that an applicant is entitled to relief in terms of the subrule, the Court will entertain the application. If the only reasonable inference from the facts set out in the affidavit is that the matter is one of urgency then the applicant would have complied with the requirements of the subrule, even though he does not make a specific averment that it is urgent.’

[13] Thus, the merits of the application weighed heavily with the court to conclude that the matter was inherently urgent.

[14] The argument by the applicants’ counsel that the court erred in concluding that Clause 6.13 of the SLA required no interpretation, has no merit as it fails to address the court’s finding that the first applicant’s conduct to withhold the funds was unlawful and amounted to self-help.

[15] Section 17 of the Superior Courts Act, which regulates the granting of leave to appeal applications, provides that –

"17. Leave to Appeal

(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 a reasonable prospect of success; or

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

[16] The test for the granting of the application for leave to appeal based on section 17(1)(a) of the Superior Courts Act, is trite and need not be repeated in this judgment. Applying the test stated in section 17(1)(a) of the Superior Courts Act, when considering all the grounds raised by the applicants in this application, it is in this court’s opinion that there are no reasonable prospects that the appeal will succeed; and there are no compelling reasons, presented to this court, why the appeal should be heard.

[17] In the circumstances the application is dismissed with costs including costs of counsel on scale C.

Judge of the High Court

Gauteng Division

Appearances:

For the Applicant : Adv T Chavalala E-mail: talenta@law.co.za Mobile: 072 279 4792 Adv N Siboza Email: nelsie@counsel.co.za Cell: 072 435 1894 Instructed by : JM Modiba Attorneys E-mail: kopman@jmmodibaattorneys.co.za Tel: 012 323 2577 For the Respondent : Adv JG Rautenbach SC E-mail: gysrautenbach@gmail.com Mobile: 082 968 1959 Instructed by : Mfinci Bahlmann Incorporated E-mail: vuyisa@mfincibahlmann.co.za Tel: 012 261 1647 Date of argument: 22 October 2024 Date of judgment: 01 November 2024

[1] 1994 (3) SA 241 (SE) at 243A - H

[2] Cekeshe and Others v Premier, Eastern Cape, and Others 1998 (4) SA 935 (Tk).