Sogika Consulting Engineers CC v Mamusa Local Municipality (Leave to Appeal) (UM180/2023) [2025] ZANWHC 128 (25 July 2025)

IN THE NORTH WEST HIGH COURT, MAFIKENG

CASE NO: UM 180/2023

Reportable: NO

Circulate to Judges: NO

Circulate to Magistrates: NO

Circulate to Regional Magistrates: NO

In the matter between:

SOGIKA CONSULTING ENGINEERS CC Applicant AND MAMUSA LOCAL MUNICIPALITY 1st Respondent MUNICIPAL MANAGER: MAMUSA LOCAL MUNICIPALITY 2nd Respondent HEAD OF DEPARTMENT: COOPERATIVE GOVERNANCE AND TRADITIONAL AFFAIRS 3rd Respondent DEPARTMENT OF HUMAN SETTLEMENT OF NORTH WEST PROVINCE 4th Respondent

DATE OF HEARING

: 09 MAY 2025

DATE OF JUDGMENT

: 25 JULY 2025

FOR THE APPLICANT

: ADV. S COHEN

FOR THE RESPONDENT

: MR. BALOYI

JUDGMENT ON LEAVE TO APPEAL

Delivered: This judgment was handed down electronically by circulation to the parties’ legal representatives via email. The date and time for hand-down is deemed to be 10h00 on 25 July 2025.

Summary: Section 17 (1) (a) read with s 18 (3) of the Superior Court Act 10 of 2013 (the act) - the test to be applied. Rule13 of the Uniform Rules of Court and its applicability to motion proceedings. Whether there are reasonable prospects of success that another court – sitting as court of appeal – ‘would’ arrive at a different decision than the court of first instance.

Leave to appeal to either the Supreme Court of Appeal (SCA) or the Full Court of this division is refused with costs.

ORDER

Resultantly, the following order is made:

(i) The application for leave to appeal by Mamusa Local Municipality to either the Supreme Court of Appeal (SCA) or the Full Court of this division, is dismissed.

(ii) Mamusa Local Municipality is ordered to pay the costs of this application on a party-and-party basis, on the High Court Scale B, to be taxed.

JUDGMENT

HENDRICKS JP

Introduction

[1] This is an application for leave to appeal lodged by Mamusa Local Municipality against the whole of the judgment and order granted by

Vermeulen AJ, to either the Full Court of this division or the Supreme Court of Appeal (SCA) in terms of S 17 (1) (a) of the Superior Court Act 10 of 2013 (the act)[1], on 15 January 2025, in which it was ordered that the Mamusa Local Municipality (Mamusa), pay an amount of R13 773 619.84 plus interest and costs to Sogika Consulting CC (Sogika), for services rendered in terms of a service level agreement entered into between the parties, plus ancillary relief. The application for leave to appeal was filed and served on 04 February 2025. The date allocated for the hearing of the application for leave to appeal was 9 May 2025.

[2] Sogika then lodged an application in terms of S 18 (3)[2] of the act, to execute the judgment granted in its favour, pending the finalization of the appeal process. The application for leave to appeal was opposed until 5 May 2025, three (3) days before the date of hearing, when the attorneys of record Kgaugelo Baloyi Incorporated withdrew as attorneys of record for Mamusa “due to lack of instructions including non-payment of accounts and/or invoices”. This was seen by Sogika as a delaying tactic; hence it was deemed necessary to lodged a S 18 (3) execution application.

[3] As alluded to, the matter was enrolled on 9 May 2025 for the hearing of both applications (S 17 (1) (a) and S 18 (3) of the act). Mr. Baloyi, whose mandate had been terminated as a result of lack of further and/or proper instructions, attended the virtual hearing out of respect for the Court as an observer, whose professional ethos in this regard is indeed commendable. The withdrawal of the attorneys of record on the proverbial eleventh hour renders the application for leave to appeal aborted. However, this Court nevertheless, and in the interest of justice, entertained the application for leave to appeal

especially because the presiding judge who presided over this matter, was unavailable to hear and decided the application for leave to appeal which could not be further delayed.

[4] The gist of the application for leave to appeal is against the finding insofar as it concerns the interpretation of the application of Rule 13 of the Uniform Rules of Court to motion proceedings. This aspect was comprehensive and extensively dealt with in the main judgment of Vermeulen AJ, and need not be rehashed in this judgment on leave to appeal. Suffice to state that I am in full agreement with the reasoning and ultimate conclusion reached by the court a quo, and I fully align myself therewith. I am unable to phantom any other logical interpretation and applicability of Rule 13 to applications,

than so meticulously outlined by Vermeulen AJ in his well-reasoned judgment.

[5] The test for leave to appeal to be granted is now settled. S 17 (1)(a) (i) has now raised the bar for the granting of leave to appeal. It is no longer the test that an application for leave to appeal ‘may’ have reasonable prospects of success on appeal, but that it ‘would’ have reasonable prospect of success on appeal[3].

[6] The test for “some other compelling reason” under section 17 (1) (a) (ii) is also not easily overcome. This generally requires some legal controversy of wider significance that warrants the effort and attention of a court of appeal. In Fair Trade Tobacco Association v President of the Republic of South Africa[4], it was stated that there can be no “compelling reasons” where a case merely involves the application of “settled law” to the facts.

[7] I am in full agreement with contention on behalf of Sogika that the order made by Vermeulen AJ is correct on both the facts and the interpretation of the law. No misdirection can be found in the judgment of Vermeulen AJ. On this basis alone, there exist no reasonable prospects of success on appeal, that another court sitting as a court of appeal ‘would’ come to a different decision than what the court a quo had arrived at. The application for leave to appeal therefore stands to be dismissed.

[8] In anticipation that leave to appeal would be granted, which will not be the case, Sogika launched an application in terms of S 18 (3) of the act for the execution of the order, pending any further appeal to either the Full Court of this division or the Supreme Court of Appeal (SCA). As a result of the conclusion reached in this application for leave to appeal, it will be superfluous to deal with the S 18 (3) application, as there are no further appeal pending. As a consequence hereof, there is no need to make any pronouncement on the S 18 (3) application, at this stage of the proceedings.

[9] Insofar as costs are concerned, the general rule applies that costs should follow the result and be awarded in favour of the successful litigant, Sogika, who successfully opposed the application for leave to appeal. The second and third respondents were not parties to the application for leave to appeal. No cost order should be granted against them. The costs orders made by Vermeulen AJ should also not be amended as it is based on the well-reasoned and applied principles, which cannot be faulted. Mamusa should be ordered to pay the costs of this application for leave to appeal. I am also of the view that as a result of the complexity of the matter and the issues raised with regard to the applicability of Rule 13 to motion proceedings, that at higher scale of costs is justified.

Order

[10] Resultantly, the following order is made:

(i) The application for leave to appeal by Mamusa Local Municipality to either the Supreme Court of Appeal (SCA) or the Full Court of this division, is dismissed.

(ii) Mamusa Local Municipality is ordered to pay the costs of this application on a party-and-party basis, on the High Court Scale B, to be taxed.

R D HENDRICKS

JUDGE PRESIDENT OF THE HIGH COURT,

NORTH WEST DIVISION, MAHIKENG

[1] S 17 (1) (a) of the Superior Court Act Provides: “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; (b) …”

[1] S 17 (1) (a) of the Superior Court Act Provides:

“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;

(b) …”

[2] S 18 (3) of the Superior Court Act Provides: “18. Suspension of decision pending appeal (1) … (2) … (3) A court may only order otherwise as contemplated in subsection (1) or (2), if the party who applied to the court to order otherwise, in addition proves on a balance of probabilities that he or she will suffer irreparable harm if the court does not so order and that the other party will not suffer irreparable harm if the court so orders. (4)…”

[2] S 18 (3) of the Superior Court Act Provides:

“18. Suspension of decision pending appeal

(1) …

(2) …

(3) A court may only order otherwise as contemplated in subsection (1) or (2), if the party who applied to the court to order otherwise, in addition proves on a balance of probabilities that he or she will suffer irreparable harm if the court does not so order and that the other party will not suffer irreparable harm if the court so orders.

(4)…”

[3] Acting National Director of Public Prosecution and Others v Democratic Alliance; In re Democratic Alliance v Acting National

Director of Public Prosecution and Others 2016 ZAGPPHC 489 (24 June 2016) at paragraph 25,29 (Full Court), citing the Mont Chevaux Trust (IT2012/28) v Tina Goosen & 18 Others LCC 14R at paragraph 6. Monthuloe Incorporated Attorneys v The Law Society of the Northern Provinces and Another 2017 ZASCA 17 (22 March 2017) at paragraph 18;Notshokovu v S [2016] ZASCA 112 (7 September 2016) it paragraph 2: “[a]n appellant … faces are higher a stringent threshold, in terms of the Act compared to the provisions of the repealed Supreme Court Act 59 of 1959.”

[3] Acting National Director of Public Prosecution and Others v Democratic Alliance; In re Democratic Alliance v Acting National

Director of Public Prosecution and Others 2016 ZAGPPHC 489 (24 June 2016) at paragraph 25,29 (Full Court), citing the Mont Chevaux Trust (IT2012/28) v Tina Goosen & 18 Others LCC 14R at paragraph 6.

Monthuloe Incorporated Attorneys v The Law Society of the Northern Provinces and Another 2017 ZASCA 17 (22 March 2017) at paragraph 18;Notshokovu v S [2016] ZASCA 112 (7 September 2016) it paragraph 2: “[a]n appellant … faces are higher a stringent threshold, in terms of the Act compared to the provisions of the repealed Supreme Court Act 59 of 1959.”

[4] Fair Trade Tobacco Association v President of the Republic of South Africa and Others (21688/2020) [2020] ZAGPPHC 311 (24 July 2020) at paragraph 22 (Mlambo JP. Molefe J, Basson J).