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IN THE HIGH COURT OF SOUTH AFRICA

NORTH WEST PROVINCIAL DIVISION, MAHIKENG

 

                                                                                     Case No.: UM161/2023

Reportable:

Circulate to Judges: NO

Circulate to Magistrates: NO

Circulate to Regional Magistrates: NO

In the matter between:

           

RATLOU LOCAL MUNICIPALITY                                             Applicant

 

and

 

SEBATANA CASSIUS SEJAKE                                                1^st Respondent

 

FIRST NATIONAL BANK LIMITED                                           2^nd Respondent

 

THE ACTING SHERIFF:                                                            3^rd Respondent

ITSOSENG (DITSOBATLA)

 

JUDGMENT

 

DIBETSO-BODIBE AJ

 

Introduction

 

[1]        When the court process is deliberately turned into a litigatory game, the end of it all is that not only will litigants stumble and fall going forward, entangled inside the spiderweb they created themselves but also the effect thereof is that the litigants will have lost a sense of direction concerning pertinent issues to be resolved in a particular matter given the overwhelming string of legal battles spanning over a long period of time. “Like all things in life, like the best of times, litigation must, at some point, come to an end…”[1]

 

[2]        First Respondent, Sejake, was in the employ of the Applicant, Ratlou Local Municipality (the Municipality) in casu. The Second and Third Respondents, First National Bank and the Acting Sherrif: Itsoseng, respectively, did not oppose the application.

 

[3]        I hasten to state from the onset the lateness of handing down of this judgment to which I offer my sincerest apologies. Due to the several impending applications between the Parties, the main court file rotate between the relevant Judges as and when the parties’ applications are allocated to them for adjudication. In casu, the court file had to be given to another judge, though the file was later returned to my office, due to administrative glitches. I became unaware that it was so returned.

 

[4]        This is an urgent application in terms of Section 18(3) of the Superior Courts Act 10 of 2013 for an order that the court order of 20 July 2020 under case no. UM185/2022 remain in force and effect.

 

[5]        The other application (Ratlou Local Municipality and another v Sejake UM185/2022) was a Counter-Application heard simultaneously with the Section 18(3) application. By agreement between the parties, the matter was removed from the roll and the Applicant to pay wasted costs occasioned by the removal of the matter on a party and party scale.

 

[6]        This application has its genesis from a court order of 20 May 2021 wherein the Municipality (Defendant then) was ordered to make a payment in the sum of R969 827.57 to Sejake (Plaintiff then). Since then the litigants have locked horns with the resultant, protracted litigation leading to several judgments to date of this application.

 

THE PLEADINGS

 

[7]        The relief sought in terms of the Notice of Motion is the following:

 

[7.1]     That the forms and service as provided for in the Uniform Rules of Court are dispensed with and that the matter be heard as one of urgency in terms of Rule 6(12) of the Uniform Rules of Court.

 

[7.2]     That the operation of paragraph 56(i), 56(ii), 56(iii), 56(iv) and 56(v) of the order of the Honourable Court by Her Ladyship Justice Reid under Case Number UM185/2022 on 20 July shall not be suspended pending the final determination of any applications for leave to appeal or appeals against the orders.

 

[7.3]     Costs on attorney and own client scale, in the event of opposition.

 

[7.4]     The Notion of Motion was served on 19 September 2023 and the Respondents were supposed to file their Notice of Intention to Oppose same day whilst Answering Affidavits were supposed to be filed on 12 September, days before the filing of the founding papers. It is not clear from the court papers how this error was dealt with but the Notice of Intention to Oppose of Sejake was served on 20 September 2023 and the Answering Affidavit on 21 September 2023.

 

[8]        The deponent to the Municipality’s Founding Affidavit, Dr Mothupi, in his capacity as the Acting Municipal Manager averred briefly as follows:

 

[8.1]     PURPOSE OF APPLICATION: In addition to having this matter heard on an urgent basis, the Applicant seeks that the operation and execution of paragraphs 56(i), 56(ii), 56(iii), 56(iv) and 56(v) of the orders of the Honourable Justice Reid given under case no. UM185/2022 shall not be suspended pending the final determination of any applications for leave to appeal or appeals against the order.

 

[8.2]     REFERENCE AND INCORPORATION OF AFFIDAVITS ALREADY BEFORE COURT: On 10 August 2023, the Applicant instituted a counter-application, in proceedings pending before the Honourable Court, under case no. UM161/2023. In that application, similar relief is sought before the Honourable Court.

 

[8.3]     The Applicant’s counter-application has been set down for hearing on 22 September 2023, which is the same day on which this application is to be heard in the urgent court. In the counter-application proceedings, there has been extensive exchange of affidavits between the Applicant and the First Respondent.

 

[8.4]     In order not to be repetitive and make the papers before court prolix, I kindly request that the contents of the affidavits duly filed therein be read and incorporated herein by reference. More specifically, the grounds of urgency set out therein are also relied upon herein.

 

[8.5]     Further to the above, at the hearing of this matter, a request that this matter and the counter-application proceedings be heard simultaneously will be made accordingly.

 

WHEREFORE based on the submissions above, the Applicant prays for the relief sought in the Notice of Motion

 

[9]        In his Answering Affidavit, (the relevant portions thereof), the First Respondent averred as follows: BASIS OF OPPOSITION. I am advised that the context relevant to section 18 of the SC Act is:

 

[9.1]     The set of considerations pertinent to a threshold test to deviate from a default position, i.e. the appeal stays the operation and execution of the order. The realm is that of procedural laws whose policy objectives are to prevent avoidable harm to litigants.

 

[9.2]     The primary rationale for the default position is that finality must await the last court’s decision in case the last court decide differently, the reasonable prospects of such an outcome being an essential ingredient of the decision to grant leave in the first place.

 

[9.3]     When the pending happening is the application for leave itself, the potential outcome in that proceeding, although conceptually distinct from the position after leave is granted, ought for policy reasons to rest on the same footing.

 

[9.4]     I will demonstrate hereunder that the applicant has failed to demonstrate exceptional circumstances at all and that I will suffer irreparable harm as the appellant should leave to execute be granted.

 

[9.5]     The applicant wishes to rely on the counter-application in the proceedings pending before Court under case number: UM161/2023 in order to demonstrate that exceptional circumstances exist in respect of his application.

 

[9.6]     The applicant seeks this matter to be heard as one of urgency, yet the applicant has failed to make out any case of urgency at all in respect thereof and seeks to rely on the matter under case number UM161/2023.

 

[9.7]     Conclusion. On the merits of the urgent application filed herein, the municipality has failed to meet the requirements of the granting of an order as contemplated in terms of Section 18(3) of the Superior Courts Acts, in that the municipality has simply failed to demonstrate that exceptional circumstances exist in this case and has further failed to make out a case for urgency.

WHEREFORE, I pray that the urgent application be dismissed with costs.

 

[9.8]     The nub of the Applicant’s contentions were that the First Respondent issues writs every month against the Applicant for payment of his salaries since the court order of 20 May 2021. That this is the stratagem employed by the First Respondent to be paid for the period of his contract of employment whilst not rendering any services to the Applicant. That the Applicant is unable to appoint a Senior Manager in the affected position as the First Respondent remain in occupation of the position to the detriment of service delivery. The Applicant will suffer irreparable harm since the Applicant has limited resources meant for service delivery and may in the end not be able to recover the monies paid to the First Respondent in the form of salaries should the First Respondent’s appeal be dismissed.

 

[9.9]     On the other hand, the First Respondent argued that it is a fallacy that the First Respondent is using a stratagem of writs to obtain salaries since the letter of termination of the First Respondent’s employment contract has been suspended as per the order of 25 August 2023. The litigation between the parties will be curtailed once the Applicant become desirous to pay the monthly salaries of the Respondent.

 

ANALYSIS

 

[10]      On 20 July 2023 the following order was made under case no. UM185/2022:

 

“[56]    In the premises I make the following order pending the outcome and finalisation of the application for rescission of default judgment under case number 255/2021:

 

(i)            The following writs of execution issued by the Registrar of this Court, alternatively the Sheriff of this Court under case number 255/2021, is set aside:

 

(a)       On 9 June 2021 in the amount of R969 827.57,

 

(b)       On 18 January 2022 in the amount of R647 897.92;

 

(c)          On 09 September 2022, of which all the writs were issued in favour of the First Respondent.

 

(ii)          That the notice(s) of attachment in terms of Rule 45(8) and (12) of the Uniform Rules of Court issued by the third respondent (the Sheriff) in favour of the first respondent be set aside and any pending attachment as a result of the notice of attachment be uplifted with immediate effect;

 

(iii)         That to the extent that funds have been disbursed from the applicant’s bank account as held with the second respondent (the FNB Bank) to the third respondent as a consequence of the notice of attachment (Uniform Rule 45(8) and (12), or if those funds have already been paid by the FNB Bank to the first respondent (Sejake) or his attorneys, these funds be returned to the applicant’s bank from which the funds were disbursed;

 

(iv)         That the operation and execution of the orders by Hendricks DJP granted by default on 21 May 2022 under case number 255/2021 be suspended pending judgment in the rescission application under case number 255/2021.

 

(v)          The first respondent is ordered to pay the cost of the applicant.”

 

[11]      On 01 August 2023 the First Respondent filed an application for leave to appeal the judgment of 20 July 2023. On the other hand, the Applicant launched an application in terms of Section 18(3) of the Superior Courts Act 10 of 2013 seeking an order on an urgent basis, that the said order be put into effect pending the application for leave to appeal or any future appeal process.

 

SECTION 18 OF THE SUPERIOR COURTS ACT 10 OF 2023 (the Act)

 

[12]      Section 18 dealing with “Suspension of decision pending appeal” provides that –

 

(1)          Subject to subsections (2) and (3), and unless the court under exceptional circumstances orders otherwise, the operation and execution which is the subject of an application for leave to appeal, is suspended pending the decision of the application or appeal;

 

(2)          Subject to subsection (3), unless the court under exceptional circumstances orders otherwise, the operation and execution of a decision that is an interlocutory order not having the effect of a final judgment, which is the subject of an application for leave to appeal or an appeal, is not suspended pending the decision of the application or appeal;

 

(3)          A court may only order otherwise as contemplated in subsections (1) and (2), if the party who applied to 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 will not suffer irreparable harm if the court so orders;

 

(4)          If the court orders otherwise as contemplated in subsection (1) –

 

(i)           the court must immediately record its reasons for doing so;

 

(ii)          the aggrieved party has an automatic right of appeal to the next highest court;

 

(iii)        the court hearing such appeal must deal with it as a matter of extreme urgency, and

 

(iv)        such order will be automatically suspended, pending the outcome of such appeal.

 

(5)          For purposes of subsections (1) and (2), a decision becomes the subject of an application for leave to appeal, as soon as an application for leave to appeal is lodged with the registrar in terms of the rules.

 

REQUIREMENTS OF SECTION 18 OF THE SUPERIOR COURTS ACT 10 OF 2013 AND BRIEF HISTORY PRIOR TO ITS COMING INTO EFFECT

 

[13]      The Superior Courts Act repealed the Supreme Court Act 59 of 1959 on 12 August 2013 when it was promulgated. However, the Uniform Rules of Court remained in place to the extent that they were not inconsistent with the spirit and purport of the Superior Courts Act until such time as they would be repealed or amended. To this end Rule 49(11) was subsequently repealed and replaced by Section 18 of the Superior Courts Act.

 

[14]      Rule 49(11) which re-stated the established common law of practice then provided that “Where an appeal has been noted or an application for leave to appeal against or to rescind, correct, review or vary an order of a court has been made, the operation and execution of the order in question shall be suspended, pending the decision of such appeal or application, unless the court which gave such order, on the application of a party, otherwise direct.”

 

[15]      Prior to the coming into effect of Section 18, “The well established common law rule of practice in our courts has been that generally the execution of a judgment is automatically suspended upon the noting of an appeal, with the result that, pending the appeal, the judgment cannot be carried out and no effect can be given thereto, except with leave of the court which granted the judgment… the purpose of the rule was to prevent damage being done to the intending appellant by the execution of the judgment pending appeal.”[2]

 

[16]      “However, … the court to which the application was made for leave to execute the judgment pending appeal, had a wide discretion to grant or refuse such leave and would, inter alia, have regard to the following factors:

 

(1)          the potentiality of irreparable harm on prejudice being sustained by the appellant on appeal if leave to execute were to be granted.

 

(2)          the potentiality of irreparable harm or prejudice being sustained by the respondent on appeal … if leave to execute were refused.

 

(3)          the prospects of success on appeal, including more particularly the question as to whether the appeal is frivolous or vetatious or has been noted not with bona fide intention of seeking to reverse the judgment but for some indirect purpose…

 

(4)          where there is the potentiality of irreparable harm or prejudice to both appellant and respondent, the balance of hardship or inconvenience, as the case may be.”[3]

 

[17]      The implications of the new provisions of subsection 18(4) and (5) are irrelevant to this judgment “Save that their very existence emphasises the exceptionality requirement of the relief of putting into operation and executing an order that is subject to a pending application for leave to appeal or an appeal.”[4]

 

[18]      “In embarking upon an analysis of the requirements of Section 18, it is firstly necessary to consider whether, and if so, to what extent, the legislature has interfered with the common law principles articulated in South Cape Corporation, and the now repealed Uniform Rule 49(11). What is immediately discernible upon perusing Subsecction 18(1) and (3) is that the legislature has proceeded from the well-established premise of the common law that the granting of relief of this nature constitutes an extraordinary deviation from the norm that, pending an appeal, a judgment and its attendant orders are suspended. Section 18(1) thus states that an order implementing a judgment pending appeal shall only be granted ‘under exceptional circumstances.”[5]

 

[19]      “It is further apparent that the requirements introduced by Subsection 18(1) and (3) are more onerous than those of the common law. Apart from the requirement of ‘exceptional circumstances’ in Section 18(1), Section 18(3) required the applicant ‘in addition’ to prove on a balance of probabilities that he or she ‘will’ suffer irreparable harm if the order is not made, and that the other party ‘will not’ suffer irreparable harm if the order is made.”[6]

 

[20]      “The application of rule 49(11) required a weighing up of the potentiality of irreparable harm or prejudice to both parties, a weighing up of the balance of hardship or convenience, as the case may be, was required. Section 18(3), however, has introduced a higher threshold, namely proof on a balance of probabilities that the applicant will suffer irreparable harm if the order is not granted and conversely that the respondent will not if the order is granted.”[7]         

 

[21]      “Section 18(3) is a novel provision and places a heavy onus on the applicant. On a proper construction of Section 18, it is clear that it does not merely purport to codify the common law practice, but rather to introduce more onerous requirements…”[8]

 

[22]      Whether or not ‘exceptional circumstances’ for the purposes of Section 18(1) are present, must necessarily depend on the peculiar facts of each case. “Necessarily, … exceptionality must be fact specific. The circumstances which are or may be ‘exceptional’ must be derived from the actual predicaments in which the litigants find themselves.”[9]

 

EVALUATION AND CONCLUSION

 

[23]      The Applicant failed to canvass the material facts upon which it relied on in its founding affidavit. Instead the Court was referred to source the evidence relied upon in terms of the Section 18(3) application from the purported counter-application which was subsequently removed from the roll by the Parties. This is not only fatal to the Applicant’s case but is also prejudicial to the Respondent.

 

[24]      “It is not proper for a party in motion proceedings to base an argument on passages in documents which have been annexed to the papers when the conclusions sought to be drawn from such passages have not been canvassed in the affidavits. The reason is manifest – the other party may well be prejudiced because evidence may have been available to it to refute the new case on the facts… In motion proceedings, the affidavits constitute both the pleadings and the evidence…, and the issues and averments in support of the Parties’ cases should appear clearly therefrom. A party cannot be expected to trawl through lengthy annexures to the opponent’s affidavit and to speculate on the possible relevance of facts therein contained. Trial by ambush cannot be permitted.”[10]

 

[25]      “… If an issue is not cognisable or derivable from the notice of motion and affidavits, “there is little or no scope for reliance on it”. It is a fundamental rule of fair civil proceedings that the parties … should be appraised of the case which they are required to meet, one of the manifestation of the rule is that he who asserts … must formulate his case sufficiently clearly so as to indicate what he is replying on.”[11]

 

[26]      “… A party has a duty to allege in the pleadings the material facts upon which it relies. It is impermissible for a plaintiff to plead a particular case and seek to establish a different case at the trial. It is equally not permissible for the trial court to have recourse to issues failing outside the pleading when deciding the case.”[12]

 

[27]      It is a travesty of justice for the Applicant to fail to make out its case in the founding papers and instead refers the Court to some other court papers unrelated to the application before the Court and for the Court to thereupon “sift” the material facts relevant to its case therefrom and pronounce itself upon such.

 

[28]      The Respondent disputed urgency in this matter, however, the Court proceeded with the hearing on the basis that the Section 18 applications are considered inherently urgent by nature, hence the Court dealt fully with the requirements of Section 18 as none have been dealt with taking into consideration the heavy onus placed upon the Applicant in terms of Subsection 18(1) and (3).

 

[29]      The plight of the Applicant alone is probably all that is required to pass the muster as to whether or not exceptional circumstances exists and the presence of irreparable harm first to itself as Applicant who want to put into operation and execute the order and second, the absence of irreparable harm to the First Respondent, who seek leave to appeal.

 

[30]      In the premises, the Applicant has failed to discharge the onus, on a balance of probabilities, to show that it should be granted the relief sought in terms of Section 18(3) of the Superior Courts Act.

 

ORDER

 

[31]      I, therefore, make the following order:     

 

[31.1]  The forms and service prescribed by the Rules of Court are disposed of and the application is heard as an urgent application in terms of Rule 6(12),

 

[31.2]  The application is dismissed,

 

[31.3]  The Applicant shall pay the First Respondent’s costs in these proceedings.   

 

 

O.Y DIBETSO-BODIBE

ACTING JUDGE OF THE HIGH COURT

NORTH WEST DIVISION, MAHIKENG

 

 

Delivered: This judgment is prepared and authored by the Judge whose name is reflected and is handed down electronically by circulation to the Parties or their legal representatives by email and by release to SAFLII

 

DATE OF HEARING:	22 September 2023 & 26 September 2023
DATE OF JUDGMENT:	04 February 2025
APPEARANCES
FOR THE APPLICANT:	Adv M.C Makgato Adv V Quithi
INSTRUCTED BY:	Phambane Mokone Attorneys c/o Mokhetle Attorneys
FOR THE 1st RESPONDENT:	Adv C.Z Muza Adv Pooe
INSTRUCTED BY:	Zisiwe Attorneys
FOR THE 2nd RESPONDENT:	No appearance
FOR THE 3rd RESPONDENT:	No appearance

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