Wakeni v Pan Africanist Congress of Azania and Others (1222/2009) [2014] ZAECMHC 37 (30 October 2014)
The court found that there was merit in granting leave to appeal on the grounds relating to the reinstatement of the applicant as councillor and the award of emoluments, as well as the costs order against the fourth respondent. The court clarified that once leave to appeal is granted, the original order is...
Source-derived case information.
- Citation
- [2014] ZAECMHC 37
- Parties
- Applicant: Dalakuthethuwa Wakeni; Respondent: Pan Africanist Congress of Azania; Respondent: Lehlape Mphahlele; Respondent: Sisa Mabuya; Respondent: Intsikia Yethu Municipality; Respondent: Nosiphiwo Gloria Giyose
- Court
- Eastern Cape High Court, Mthatha
- Jurisdiction
- South Africa
- Case Number
- 1222/2009
- Procedural Posture
- Leave to Appeal / Application for Leave to Appeal Following Judgment Delivered on 25 March 2010.
- Outcome
- Leave to appeal against the order delivered on 25 March 2010 is granted.
- Judges
- P.W. Tshiki
- Legal Topics
- Leave to Appeal, Reinstatement of Councillor, Costs Order, Review of Administrative Action
Source-derived case record
Summary, issues, holding and outcome
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Parties
Dalakuthethuwa Wakeni
Applicant
Pan Africanist Congress of Azania
Respondent
Lehlape Mphahlele
Respondent
Sisa Mabuya
Respondent
Intsikia Yethu Municipality
Respondent
Nosiphiwo Gloria Giyose
Respondent
Procedural Posture
Leave to Appeal / Application for Leave to Appeal Following Judgment Delivered on 25 March 2010.
Legal Issues
- 1 Whether leave to appeal should be granted against the order reinstating the applicant as councillor.
- 2 Whether the swearing in of the fifth respondent as councillor should have been set aside.
- 3 Whether the fourth respondent should be liable for costs when no fault was found against it.
Ratio Decidendi
The court found that there was merit in granting leave to appeal on the grounds relating to the reinstatement of the applicant as councillor and the award of emoluments, as well as the costs order against the fourth respondent. The court clarified that once leave to appeal is granted, the original order is automatically suspended pending the outcome of the appeal, making any application for leave to execute unnecessary. The application for leave to appeal was therefore granted on the specified grounds.
Court Disposition
Leave to appeal against the order delivered on 25 March 2010 is granted.
Orders
- The application for leave to appeal against the order of this Court delivered on 25 March 2010 is hereby granted.
Full Case Text
Judgment text and source record
45 paragraphs
NOT REPORTABLE
IN THE HIGH COURT OF SOUTH AFRICA
EASTERN CAPE, MTHATHA
Case no: 1222/2009
Date heard: 11.3.2014
Date delivered: 30.10.2014
In the matter between:
DALAKUTHETHUWA WAKENI
Applicant
vs
THE PAN AFRICANIST CONGRESS OF AZANIA First
Respondent
LEHLAPE MPHAHLELE
Second Respondent
SISA MABUYA
Third Respondent
INTSIKIA YETHU MUNICIPALITY
Fourth Respondent
NOSIPHIWO GLORIA GIYOSE
Fifth Respondent
JUDGMENT ON APPLICATION FOR LEAVE TO APPEAL
TSHIKI J:
[1] In my judgment on the 25th March 2010, I granted an order in the following terms:
[1.1] The first respondent’s conduct terminating membership of applicant as its member and councillor representing it in fourth respondent’s council is hereby reviewed and set aside.
[1.2] The applicant is hereby re-instated as a councillor of the first respondent with all the emoluments due to him from the time that he was removed as councillor by virtue of his councillorship.
[1.3] The respondents are ordered to pay costs of this application jointly and severally the one paying the other to be absolved.
[2] Applicant, the fourth respondent herein, has appealed against the judgment on the following grounds which are:
[2.1] That the Court erred in ordering reinstatement of applicant as Councillor of the fourth respondent, without setting aside the swearing in of the fifth respondent by fourth respondent as its councillor and when no prayer for re-instatement was sought in the notice of motion.
[2.2] That the Court erred in re-instating applicant’s emoluments from the time he was removed as councillor when no fault at all is found against the fourth respondent.
[2.3[ That the Court erred by overlooking a fact that fourth respondent has been paying fifth respondent as first respondent’s councillor from the date of her being sworn in as such.
[2.3] That the Court ordered the fourth respondent to pay costs of the application when no fault was found against the fourth respondent and more so that no prayer for costs was sought against the fourth respondent.
[3] I do not have a problem in granting the application for leave to appeal on the first two grounds proposed by Mr Cole for the applicant. I, however, do not understand the applicant’s order sought which reads “that the application for leave to execute in terms of Rule 49(11) be dismissed with costs.” I say so, because it follows that once the Court grants leave to appeal herein, the order granted by the Court in favour of the respondent is automatically suspended pending the outcome of the appeal.
[4] In the result, I hereby grant the following order:
[4.1] The application for leave to appeal against the order of this Court delivered on the 25th March 2010 is hereby granted.
_________________________
P.W. TSHIKI
JUDGE OF THE HIGH COURT
Counsel for the applicant : Adv S Cole
Instructed by
: Messrs Zepe & Co
c/o V.V. Msindo & Associates
MTHATHA
Counsel for the respondent : Mr S Mgxaji
Instructed by
: Mgxaji & Co Inc