Motaung and Others v MEC Cooperative Governance and Traditional Affairs and Others (4339/2020) [2021] ZAFSHC 128 (13 April 2021)

IN THE HIGH COURT OF SOUTH AFRICA,

FREE STATE DIVISION, BLOEMFONTEIN

Case No: 4339/2020

In the matter between:

COUNCILLOR

TA MOTAUNG 1st Applicant

COUNCILLOR

M MKHELOANE 2nd Applicant

COUNCILLOR

PM MAHLABELA 3rd Applicant

COUNCILLOR

L FISCHER 4th Applicant

COUNCILLOR

MN MTSHALI 5th Applicant

COUNCILLOR

NP MOKOENA 6th Applicant

COUNCILLOR

L TSOTETSI 7th Applicant

CONCILLOR

LL NHLAPO 8th Applicant

COUNCILLOR

S MOTJEANE 9th Applicant

COUNCILLOR LEOTLELA 10th Applicant

COUNCILLOR

TJ TAATS 11th Applicant

COUNCILLOR

ME MASEKO 12th Applicant

COUNCILLOR

FD MOSOKWENI 13th Applicant

COUNCILLOR

T MOFOKENG 14th Applicant

COUNCILLOR

MS POHO 15th Applicant

COUNCILLOR

MARE ALEXIS 16th Applicant

COUNCILLOR

NNUNE BABY 17th Applicant

COUNCILLOR

LEBOHANG MAKHEFU 18th Applicant

COUNCILLOR

MORENA MOLAWA 19th Applicant

COUNCILLOR

KOBO SKY 20th Applicant

COUNCILLOR

M MOKOENA 21th Applicant

COUNCILLOR

DYWILI M 22th Applicant

COUNCILLOR

NTESOA RANI 23th Applicant

COUNCILLOR

TELANE MATHITHI 24th Applicant

COUNCILLOR

SL TSHONGWE 25th Applicant

COUNCILLORMS

POHO 26th Applicant

COUNCILLOR

KB MOFOKENG 27th Applicant

COUNCILLOR

MJ MALINDI 28th Applicant

COUNCILLOR R

MEYER 29th Applicant

SELLO

JONAS MOKOENA 30th Applicant

MJ

NDABA 31th Applicant

MJ

MKHEFA 32th Applicant

MB

OANYANE 33th Applicant

CC

SHEEPERS 34th Applicant

and

MEC: COOPERATIVE

GOVERNANCE AND

TRADITIONAL

AFFAIRS FS 1st Respondent

MATHE

MOTSUMI 2nd Respondent

KENEILWE

LEPESA 3rd Respondent

METSIMAHOLO

LOCAL MUNICIPALITY 4TH Respondent

JUDGMENT

ON APPLICATION FOR LEAVE TO APPEAL

JUDGMENT BY: MOLITSOANE, J

DELIVERED ON: 13 APRIL 2021

[1] The applicants brought an application on an urgent basis for certain interdictory and declaratory relief. I dismissed the application and undertook to give reasons later. On 26 January 2021 I duly gave reasons as undertaken. 0n 16 February 2021 the applicants filed an application for leave to appeal my whole judgment and order to the Full Court of this Division, alternatively, to the Supreme Court of Appeal.

[2] On 19 February 2021 I caused certain directives to be issued to the parties with regard to the filing of the Heads of Argument. The applicants were obliged to have filed their Heads of Argument on or before 5 March 2021. The applicants missed the deadline of filing their Heads of Argument. And at the time of writing this judgment they had not filed the same. No reasons were given for not filing the Heads of Argument and consequently no condonation was sought from this court for ignoring this directive. The application for leave to appeal has also not been withdrawn. Only the First Respondent duly filed the Heads of Argument as directed. Only the First Respondent opposes the application.

[3] With regard to the test for granting an application for leave to appeal, the Court in MEC for Health, Eastern Cape v Mkhitha and Another (1221/2015 [2015] ZASCA 176(25 November 2016) held as follows:

“[16] Once again it is necessary to say that leave to appeal, especially to this court, must not be granted unless there truly is a reasonable prospects of success. Section 17(1)(a) of the Superior Courts Act 10 of 2013 makes it clear that leave to appeal may only be given where the judge concerned is of the opinion that the appeal would have a reasonable prospect of success or there is some other compelling reason why it should be heard.

[17] An applicant for leave to appeal 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 sound, rational basis to conclude that there is a reasonable prospect of success on appeal.”

[4] The applicant relies on the following grounds of appeal in assailing the judgment of this Court:

a) “That the Honourable Court Judge erred in allowing the attack on the locus standi of the Applicants by the Respondent without invoking the provisions of Rule 7.

The Honourable court ought to have satisfied itself that the attachment of the confirmatory affidavits by the Applicants does not waive the settled procedure by the Supreme Court of Appeal.

b) The Honourable court placed too much weight on technicalities and ignored the importance of the case before it.

c) The Plascon Evans Paints case relied upon by the court is totally misplaced. From the papers filed on record the issues were crystal clear and there was absolutely no dispute of facts. The Honourable court erred in this regard.

d) The court misdirected itself by ignoring the importance of the case to the community of Metsimaholo, the misuse of public funds and only concentrated on trivial and non-existent technicalities.

e) The Honourable court erred in not realizing that by dismissing the said application it upheld non-compliance of treasury legislation by the Respondents.”

[5] I am going to confine myself to the grounds of appeal as set out above. On the

first ground of locus standi, this court dealt fully with this ground in paragraphs 7 and 8 of its judgment. In amplification it is necessary to add a comment by Loggerenberg in Erasmus Superior Court Practice, 2nd ed, with regard to Rule 7 where the authority to act is challenged. The following is said:

“When authority is challenged, the requirement of the sub rule is that the person concerned shall satisfy the court that he is authorised to act. This the person concerned may do by adducing any acceptable form of proof and not necessarily by filing a written power of attorney.”

[6] The Fourth Respondent averred that it had 18 affidavits from some of the ‘Applicants’ to the effect that Councillor Poho was not authorised by them to bring this application. Seven of the 18 Councillors went to the extent of furnishing this court with affidavits distancing themselves from Poho. The Applicants preferred not to supplement their papers by filing replying affidavits. It was clear from the answering affidavits that the authority to act was disputed. In view of the fact that this application was brought on an urgent basis, what more was expected from the respondents. They provided the most compelling evidence in the form of affidavits which remained undisputed. This ground must be dismissed.

[7] The difficultly with the rest of the grounds of appeal is that they are enumerated in a vacuum and in general terms without reference to specifics. It has to be borne in mind that the Applicants chose not to supplement their case with the replying affidavits on disputed facts. Allegations of facts were made by the “Applicants’ which were disputed. In the absence of a reply the so-called Plascon Evans rule found application. The Applicants further failed to file the Heads of Argument to clearly indicate in what way the court failed to appreciate ‘the importance to the Community of Metsimaholo’. It would be wrong to allow Poho and possibly 7 other deponents to proceed with litigation in circumstances where they allege that they are authorised, even as against the Council to bring this application. This application is brought by “Councillors” purportedly duly authorised yet clearly the Fourth Respondent confirms under oath that it has 18 affidavits of some of the so called Applicants who clearly deny being “Applicants”. The least Poho could have done was to file replying affidavits to the contrary. The ‘Applicants’ failed to deal with the locus standi of Applicants 31 to 34, who are officials in the employ of the Fourth Respondent. There is no evidence as to who or what clothed them with the authority, as officials, to bring this application. In the exercise of my discretion, a proper just and equitable order is not to award costs, although I believe that a compelling case may be made against Poho and the other 7 deponents who deposed to confirmatory affidavits as Applicants to pay costs. In the premises this application ought to fail.

ORDER

1. The application is dismissed.

2. Each party to pay his/her/its costs.

_______

P.E. MOLITSOANE, J

On behalf of the Applicant: Fixane Attorneys

BLOEMFONTEIN

On behalf of the 1st Respondent: Adv. Burger SC

Instructed by:

The State Attorney