Wakeni v Pan Africanist Congress of Azania and Others (1222/2009) [2014] ZAECMHC 37 (30 October 2014)

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