Mtakati v Ntombela N.O in her capacity as the Premier of the Free State Province and Others (1248/2020) [2021] ZAFSHC 106 (11 May 2021)

IN THE HIGH COURT OF SOUTH AFRICA,

FREE STATE DIVISION, BLOEMFONTEIN

Case number: 1248/2020

In the matter between:

SIPHO SAMUEL MTAKATI

Applicant

and

SEFORA HIXONIA NTOMBELA N.O IN HER CAPACITY

AS THE PREMIER OF THE FREE STATE PROVINCE 1st Respondent

THE MEMBER OF THE EXECUTIVE COUNCIL FOR THE

DEPARTMENT OF SPORTS, ARTS, CULTURE AND

RECREATION OF THE FREE STATE PROVINCE 2nd Respondent

DEPARTMENT OF TRANSPORT THE FREE STATE

PROVINCE

3rd Respondent

JUDGMENT BY: MHLAMBI J,

HEARD ON: Matter disposed of without oral hearing in terms of section 19(a) of the Superior Court Act 10 of 2013.

DELIEVERED ON: This judgment was handed down electronically by circulation to the parties’ legal representatives by email and release to SAFLI. The date and time for hand-down is deemed to have been 9h30 on 11 May 2021.

APPLICATION FOR LEAVE TO APPEAL

MHLAMBI, J

[1] This is an application for leave to be granted to the first respondent to appeal to the Supreme Court of Appeal, South Africa, alternatively to the Full Court of the Free State Division of the High Court of South Africa against the order and reasons therefor which I granted on 29 March 2021, and that the costs of the application be costs in the appeal. The application is opposed.

[2] On 29 March 2021, I granted an order in favour of the applicant based on the following truncated reasons:

“1. That there is no merit in the preliminary issues raised by the respondent.

2. Based on the pleadings of this case and not the substantive merits, this court has jurisdiction to adjudicate this matter. The pleadings and/or affidavits contained the legal basis of the claim under which the applicant has chosen to invoke the court’s competence (see in this case Gcaba v Minister for Safety and Security 2010(1) SA 238 (CC).

3. The matter before me cannot be classified as a quintessential employment matter based on unfair labour practice. The applicant does not assert a right under the Labour Relations Act or rely on a cause of action based on a breach of an obligation in that Act.

4. The envisaged proceedings contained in the notice of motion and affidavit, have a prospect of success.

5. The applicant has satisfied the requirements and the test for the granting of an interim interdict.”

[3] The application for leave to appeal is predicated on the provisions of section 17(1)(a)(i) and/or (ii) of the Superior Courts Act, which provide that leave to appeal may only be given where the court is of the opinion that (i) the appeal would have a reasonable prospect of success or there is some compelling reason why the appeal should be heard, including conflicting judgments on the matter under consideration.

[4] Several grounds of appeal were raised but in essence these boil down to the court a quo having misdirected itself as to the following:

· The legal principles enunciated in the precedent of the Constitutional Court and judgments of the Free State Division, which are binding on this court if not clearly wrong or distinguishable.

· The granting of the interim interdict.

[5] It is trite that an interim order is interlocutory and appealable if the interests of justice so require.[1] The relevant circumstances and factors to be considered by the court differ based on the facts of each case and are non-exhaustive.[2] The court has a wide general discretion in relation to interim interdicts.

[6] In support of the contention that this court did not have jurisdiction to entertain this matter, reference was made to the decision of Molemela J (as she then was) in Goliath v Mangaung Local Municipality and Others.[3] In that case, the dispute revolved around the employment agreement and the Labour Relations Act. Though the court based its finding on Chirwa v Transnet Ltd and Others,[4] that as a general rule the High Court did not have an inherent jurisdiction to grant interim relief pending the final determination

of a matter in which it did not ordinarily have jurisdiction, the case is distinguishable on both the facts and the law. Jurisdiction

is determined based on the pleadings and not on the merits of the case.[5] When the court’s jurisdiction is challenged at the outset, the applicant’s pleadings are the determining factor.[6]

[7] The first respondent contended that the grant of an interim relief without the grant of a rule nisi is manifestly unfair, unreasonable, and prejudicial to the first respondent’s rights as she was not afforded a reasonable time to oppose the grant of the of the interim interdict. I have considered all the authorities I was referred to and am not persuaded

otherwise and still maintain the stance as set out in my truncated reasons for granting the order. I am also not persuaded that this matter is of such a nature as to be referred to the Supreme Court of Appeal. In the heads of argument, the first respondent contended that:

“By not advising the first respondent that the court intended to grant the interdict without granting the requested rule nisi, and bearing in mind that the applicant called upon the respondents (including the first and second respondents) to advance reasons first why a rule nisi with interim effect should not be granted, the first respondent was not afforded a fair trial and the proceedings were manifestly unfair and prejudicial.”

[8] Even though I do not agree with this contention, I cannot exclude the possibility that another court would differ from my judgment. Consequently, the application for leave to appeal to the Full Court of this Division should succeed.

[9] I issue the following order:

Order:

1.The application for leave to appeal to the Full Court of this Division is granted.

2. Costs to be costs in the appeal.

_______________

JJ MHLAMBI, J

Counsel for Applicants: Adv CD Pienaar

Adv. MS Mazibuko

Instructed by:

Matlho Attorneys

96 Henry Street

Bloemfontein

Counsel for 1st Defendant: Adv N Snellenburg SC

Adv MJ Marabe

MJ Engelbrecht

Instructed by:

Office of the State Attorney

11th Floor Fedsure Building

48 Charlote Maxeke Street

[1] Tshwane City v Afriforum 2016 (6) SA 279 (CC), EFF v Gordhan and Others 2020(6) SA 325 (CC).

[2] EFF, supra, para 51.

[3] (2786/2008) [2008] ZAFSHC 117 (11 September 2008) para 7.

[4] 2008(4) SA 367 (CC).

[5] Chirwa, supra; Gcaba v Minister for Safety and Security and Others 2008(4) SA 367 (CC) para 75.

[6] Gcaba, supra.