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IN THE HIGH COURT OF SOUTH AFRICA

(NORTH WEST DIVISION, MAHIKENG)

 

Case No: 1229/25

Reportable: YES / NO

Circulate to Judges: YES / NO

Circulate to Magistrates: YES / NO

Circulate to Regional Magistrates: YES / NO

 

In the matter between:                       

DITSOBOTLA LOCAL MUNICIPALITY	First Applicant
ACTING MUNICIPAL MANAGER: DITSOBOTLA LOCAL MUNICIPALITY: RASUPANG CLARIUS MOOKETSI	Second Applicant
MAYOR: DITSOBOTLA LOCAL MUNICIPALITY: MAZWI MORURI	Third Applicant
SPEAKER: DITSOBOTLA LOCAL MUNICIPALITY: JAROS MODISAKENG	Fourth Applicant
MUNICIPAL COUNCIL: DITSOBOTLA LOCAL MUNICIPALITY	Fifth Applicant
and
OLAOTSE THEOPHILIUS BOJOSINYANE	First Respondent
MOLEFE WITNESS MORUTSE	Second Respondent
MANANA EMILY BOGATSU	Third Respondent
THABO NTHAUDI	Fourth Respondent
LINDIWE BOTES	Fifth Respondent
ALFRED TALI	Sixth Respondent
BRENDA MOKHUANE	Seventh Respondent
KABELO MENOE	Eighth Respondent
PHILLIP MOLEME	Ninth Respondent
AMAN RAJANE	Tenth Respondent
ERETIA MODISE	Eleventh Respondent
GABRIEL SEBOPELO	Twelfth Respondent
BERNARD MOSIANE	Thirteenth Respondent
THABO NKAHLE	Fourteenth Respondent
SIMON DITHATO	Fifteenth Respondent
PETRUS MOSETE	Sixteenth Respondent
MMAMMEREKI PLAATJIE	Seventeenth Respondent
MOTLAGOMANG KGALAPA	Eighteenth Respondent
THAPELO SEHEMO	Nineteenth Respondent
MEC: COOPERATIVE GOVERNANCE, HUMAN SETTLEMENTS AND TRADITIONAL AFFAIRS (NORTH WEST)	Twentieth Respondent

 

Coram:          Titus AJ

Reserved:     14 March 2025

Delivered:     27 March 2025

 

ORDER

 

It is ordered that:

 

(i)                     The application is heard as one of urgency as contemplated in Rule 6(12) of the Uniform Rules, read with this Court’s Practice Directive 14(4)(iii). The formal requirements regarding service, form and dies contemplated in the Uniform Rules are dispensed with.

 

(ii)                    The first respondent is hereby interdicted and restrained from presenting himself as the Municipal Manager and/or acting under such false pretence or giving instructions or directives under such authority both within the municipality, and to third parties and public.

 

(iii)                   The second respondent is hereby interdicted and restrained from presenting himself or purporting to be the Mayor and/or acting under such false pretence or giving instructions or directives under such purported authority both within the municipality, and to the third parties and the public.

 

(iv)                  The third respondent is hereby interdicted and restrained from presenting himself or purporting himself to be the Speaker of the Municipal Council and/or acting under such false pretence or giving instructions or directives under such purported authority both within the municipality, and to third parties and the public.

 

(v)                   The fourth to nineteenth respondents are hereby interdicted and restrained from interfering with the applicants’ lawful discharge of their duties and obligations in their capacities as duly appointed Acting Municipal Manager, Mayor and Speaker, respectively.

 

(vi)                  The second applicant remains as the Acting Municipal Manager of Ditsobotla Local Municipality until and unless a duly constituted municipal council determines otherwise.

 

(vii)                 The third applicant remains as the duly elected Mayor of Ditsobotla Local Municipality until he resigns from the said position in terms of the law or a duly constituted municipal council determines otherwise, in accordance with its standing rules and order read with the provisions of the applicable laws.

 

(viii)                The fourth applicant remains as the duly elected Speaker of Ditsobotla Local Municipality until he resigns from the said position in terms of the law, or a duly constituted municipal council determines otherwise in accordance with its standing rules and order read with the provisions of the applicable laws.

 

(ix)                  The orders contained in (i) to (viii) above shall operate as an interim interdict with immediate effect, pending the final adjudication of Part B of this application.

 

(x)                   The first to the nineteenth respondents are ordered to pay the costs of this application on an attorney and own client scale, the one paying the others to be absolved, including costs consequent upon the employment of two counsel.

 

 

REASONS FOR JUDGMENT / ORDER

 

TITUS AJ

 

Introduction

 

[1]          This is an application for urgent interdictory relief. In broad terms, the applicants contend that the respondents are interfering with their process and function by creating parallel municipal structures at the Ditsobotla Local Municipality (‘the municipality’). As it appears from the papers, there is unfortunate enmity between the parties with a net adverse effect on the proper functioning of the municipality and its service delivery mandate.

 

[2]          The application is opposed by the respondents, who oppose it on various grounds. It must be said on widely varying degrees of merit, not least being an alleged lack of urgency, and they seek an order that the application be struck off this Court’s roll, alternatively dismissed with costs on a scale as between attorney and client .

 

[3]          The parties are at loggerheads over the municipality’s office bearer positions. By way of some background to this application, it would appear from the papers that the first respondent, Mr O.T. Bojosinyane (‘Bojosinyane’), was employed as the Municipal Manager until 30 January 2025, when his employment was summarily terminated by the municipality for being in contravention of the law[1]. Prior to his dismissal, he had been placed on special leave with the second applicant, Mr R.C. Mooketsi, acting in his stead.

 

[4]          Unhappy with the decision to terminate his employment, Bojosinyane turned to the Labour Court, Johannesburg, for his urgent reinstatement. On 28 February 2025, he was reinstated by the Labour Court[2] who agreed with Bojosinyane that he had been unlawfully dismissed[3].

 

[5]          On 3 March 2025, the applicants filed a notice to appeal the whole of the judgment and orders of the Labour Court at the Labour Appeal Court[4]. The appeal remains pending. Emboldened by the Labour Court judgment and seemingly undeterred by the pending appeal against that judgment. Bojosinyane, in the words of Mooketsi, ‘…returned to the municipal offices accompanied by bodyguards…and forced his entry into the (municipal) offices…’ on 3 March 2025 and again the following day when he also wrote to the municipality’s bank requesting access to the municipality’s banking account.

 

[6]          That same day, Bojosinyane convened a meeting of the municipal council to procure the replacement of the municipality’s incumbent Mayor and Speaker, the third and fourth applicants respectively.  Bojosinyane alleged they had resigned from their respective positions and he tendered their letters of resignation to the meeting. The incumbent Mayor and Speaker however allege that their purported ‘letters of resignation’ are a forgery. The meeting also served to reinstate Bojosinyane to his previous position, to withdraw the municipality’s notice of leave to appeal and also, for good measure, to terminate the mandate of the municipality’s attorneys, Messrs MPM Molefe & Associates.

 

[7]          The applicants therefore approach this Court on an urgent basis for interdictory relief to restrain the first to nineteenth respondents from acting unlawfully. They are represented by Advocate PL Mokoena SC appearing with Advocate M Motlogelwa, instructed by MPM Molefe & Associates, and the 1^st to 19^th respondents by Advocates S Tisani and Olebogeng Moche, instructed by Zisiwe Attorneys. The 20^th respondent was not before Court, albeit that it received notice of the urgent hearing. In any event, no relief is sought against the 20^th respondent.

 

[8]          At this juncture, it must be said that at the hearing Mr Tisani made much of the allegation that the applicants’ attorneys are not in possession of a valid Fidelity Fund Certificate (‘FFC’). He referred the Court to annexure ‘AA4’[5] to the respondent’s answering affidavit that he alleges is a copy of ‘a report of the Legal Practice Council’ confirming same. That this not so, is evident from annexure ‘AA4’ itself.

 

[9]          The respondents delivered a notice[6] two days before the hearing in which they also dispute the authority of MPM Molefe & Associates to act for the applicants. It is, respectfully, clear from the papers filed of record[7] and the various affidavits deposed to by the applicants that the application is brought with their knowledge and on their authority and that MPM Molefe & Associates are authorized to act as they have.

 

[10]       That being said, when the application was heard by this Court on Friday 14 March 2025, I granted an order in the terms set out in the order above without giving reasons. These are the reasons for the order. 

 

Jurisdiction

 

[11]       In answer to the application, the respondents take issue, amongst other things, with this Court’s jurisdiction to determine the status of the pending proceedings at the Labour Court. Mr Tisani argued that it is only the Labour Court that could determine the effect of a pending appeal before it, not this Court. The argument is not well understood.  

 

[12]       What is at issue here is alleged unlawful conduct that threatens the stability of the municipality and that adversely affects the public interest and service delivery. There is no matter before this Court that is reserved exclusively for the Labour Court[8].

 

[13]       By virtue of the pending appeal, the judgment of the Labour Court is suspended pending the determination of that appeal[9]. For all intents and purposes, Bojosinyane remains dismissed from his employ at the municipality pending his appeal. This is more so because the Labour Court did not order that its Order of reinstatement remains extant, notwithstanding the pending appeal against it[10]. Given that this is so, Bojosinyane was accordingly not entitled to act as he did qua Municipal Manager. In doing so, he acted unlawfully in the manner that the applicants allege. They are accordingly entitled to approach this Court, as they did, for urgent interdictory relief.

 

Urgency

 

[14]       In dealing with the preliminary point of urgency, the applicants contend that their application is inherently urgent because it involves the public interest and matters of service delivery. Counsel for the applicants brought this Court’s attention to the unreported Mokhele[11] case, and the authorities cited therein, as authority for the proposition that, where a delay in hearing a matter will prejudice the public interest, the matter should ordinarily enjoy the urgent attention of the court.

 

[15]       The applicants are the municipality, its council and senior office bearers. They allege that the respondents, with the exception of the first respondent, who are purported councillors, are unlawfully interfering with the municipality’s function and operations by unlawfully creating dual and parallel municipal structures and lines of authority thereby undermining the rule of law. In of itself, allegations against public officials such as these should invite the court’s urgent attention[12]. Underpinning the alleged unlawful conduct are further allegations by the second to third applicants of fraud and uttering to procure their ‘removal’ from office.

 

[16]       On the other hand, the respondents argue that the matter is not urgent as the applicants have enjoyed several days before the hearing to prepare voluminous papers and fourteen page heads of argument, while they were burdened with a severely truncated timeline to respond. The respondents argue therefore that the application is an abuse of process. Nevertheless, the respondents filed papers of some 160 pages in answer during the hearing of the matter. In the interests of justice, this Court condoned the late delivery of the answer, so that the issues raised may be properly ventilated as far as it is possible, given the urgent manner in which the application was launched.

 

[17]       In this Court’s view a delay in the hearing of the application will not serve the public interest. It will only add to the instability and uncertainty which, it seems, now pervade the municipality’s operations. If the allegations by the applicants are anything to go by, the respondents are destabilising the municipality and harming its operations. The mischief that such instability creates in public bodies is self-evident. This Court therefore found that the application was indeed urgent and that it should be heard as such.

 

The Legal Position

 

[18]       The requirements for an interim interdict are trite[13].  An applicant must satisfy the Court that it has a prima facie right; that it has a well-grounded apprehension of irreparable harm if the interim relief is not granted and the ultimate relief is eventually granted, that the balance of convenience favours the granting of an interim interdict and that the applicant has no other satisfactory remedy.

 

[19]       This Court is mindful that where state entities are concerned, the Constitutional Court in OUTA[14] cautioned that, when granting an interim interdict against a state entity, courts should ‘consider the probable impact of the restraining order on the constitutional and statutory powers and duties of the state functionary or organ of state against which the interim order is sought. The Constitutional Court further cautioned that, where legislative or executive power will be thwarted by an interim interdict, the interdict should only be granted in the clearest of cases and after careful consideration of the possible harm to the separation of powers principle. It is against this caution that this Court now turns to consider the merits of the application.

 

Prima Facie Right

 

[20]       The Supreme Court of Appeals has held that “…the accepted test for a prima facie right in the context of an interim interdict was to take the facts averred by the applicant, together with such facts set out by the respondent that were not or could not be disputed, and to consider whether, having regard to the inherent probabilities, the applicant should on those facts obtain final relief at the trial. The facts set up in contradiction by the respondent should then be considered and, if serious doubt was thrown upon the case of the applicant, he could not succeed. ”[15]

 

[21]       That the first and fifth applicants enjoy a prima facie right to approach this Court as they do is unquestionable or not seriously disputed by the respondents. The relief sought by them involves their internal operations and matters of public service delivery. For their part, the second to fourth applicants allege that they are duly elected office bearers of the first applicant and that they therefore enjoy a prima facie right to the interim relief sought. This much is clear from the relevant resolutions of the municipality that is filed of record.

 

[22]       While the respondents may take a different view on who exactly the current Municipal Manager, Mayor or Speaker are, they cannot seriously dispute that the second to fourth applicants enjoy, at least, a prima facie right to approach this Court. This is more so as it cannot also be seriously disputed that the order of the Labour Court is the subject of a pending appeal at the Labour Appeal Court. The net effect of the pending appeal is that the order of the Labour Court, reinstating Bojosinyane as Municipal Manager, is suspended pending the determination of the appeal. That much is trite[16].

 

[23]       A significant consequence for the respondents, particularly for Bojosinyane, is that the suspension of the Labour Court’s judgment means that, after he had notice of the application for leave to appeal on 3 March 2025, Bojosinyane could no longer lawfully act qua Municipal Manager. It follows then that Bojosinyane’s conduct thereafter where he purports to be the Municipal Manager and to act as he did was unauthorised, unlawful and in violation of the rule law[17]. As the Constitutional Court held in Fedsure Life Assurance Ltd, “..the exercise of public power is only legitimate when lawful.’[18]

 

[24]       On the probabilities, the applicants may therefore well be successful in the final relief sought and this Court finds that the applicants have established a prima facie right to the interim relief sought. The respondents’ allegations to the contrary ignores the objective facts and, respectfully, do not establish any bona fide dispute of fact on this ground.

 

A well-grounded Apprehension of Irreparable Harm

 

[25]       This Court has found that, upon receipt of the notice of application for leave to appeal, of the judgment reinstating him as Municipal Manager, Bojosinyane remained dismissed from his employ at the municipality and that he could therefore not lawfully act as its Municipal Manager and convene meetings of the municipal council as he did. By convening an unauthorised council meeting for it to take decisions, also unauthorised albeit with consequences for the public at large and the applicants in particular, the apprehension of irreparable harm is established; quite aside from Bojosinyane’s equally unauthorised attempt to access the municipality’s banking facilities.

 

Balance of Convenience

 

[26]       The applicants further allege that the balance of convenience, in granting the interim relief as opposed to not granting it, favours them as the respondents are not entitled to the fruits of their unlawful conduct. It is indeed so, as the applicants argue, that an interim interdict restraining the respondents from acting unlawfully, will not cause them any harm of any significance as they are not entitled to the fruits of unlawful or unauthorised conduct. The balance of convenience clearly favour the applicants and this Court finds it so.

 

No other satisfactory remedy

 

[27]       In the nature of the circumstances of this matter, this Court accepts that there is no other satisfactory remedy to restrict the mischief complained of on an urgent interim basis, pending the determination of Part B of the application. The contention by the respondent’s counsel that the obvious satisfactory remedy lies at a challenge to the CCMA or the Labour Court, respectfully ignores that what is in issue here is urgent interim relief to maintain law and order.

 

Order

 

[28]       In the premises, it is ordered that:

 

28.1.    The application is heard as one of urgency as contemplated in Rule 6(12) of the Uniform Rules, read with this Court’s Practice Directive 14(4)(iii). The formal requirements regarding service, form and dies contemplated in the Uniform Rules are dispensed with.

 

28.2.    The first respondent is hereby interdicted and restrained from presenting himself as the Municipal Manager and/or acting under such false pretence or giving instructions or directives under such authority both within the Municipality, and to third parties and public.

 

28.3.    The second respondent is hereby interdicted and restrained from presenting himself or purporting to be the Mayor and/or acting under such false pretence or giving instructions or directives under such purported authority both within the municipality, and to the third parties and the public.

 

28.4.    The third respondent is hereby interdicted and restrained from presenting himself or purporting himself to be the Speaker of the Municipal Council and/or acting under such false pretence or giving instructions or directives under such purported authority both within the municipality, and to third parties and the public.

 

28.5.    The fourth to nineteenth respondents are hereby interdicted and restrained from interfering with the applicants’ lawful discharge of their duties and obligations in their capacities as duly appointed Acting Municipal Manager, Mayor and Speaker, respectively.

 

28.6.    The second applicant remains as the Acting Municipal Manager of Ditsobotla Local Municipality and until and unless a duly constituted municipal council determines otherwise.

 

28.7.    The third applicant remains as the duly elected Mayor of Ditsobotla Local Municipality until he resigns from the said position in terms of the law or a duly constituted municipal council determines otherwise, in accordance with its standing rules and order read with the provisions of the applicable laws.

 

28.8.    The fourth applicant remains as the duly elected Speaker of Ditsobotla Local Municipality until he resigns from the said position in terms of the law, or a duly constituted municipal council determines otherwise in accordance with its standing rules and order read with the provisions of the applicable laws.

 

28.9.    The orders contained in 28.1 to 28.8 above shall operate as an interim interdict with immediate effect, pending the final adjudication of Part B of this application.

 

28.10.  The first to the nineteenth respondents are ordered to pay costs of this application on an attorney and own client scale, the one paying the others to be absolved, including costs consequent upon the employment of two counsel.

 

 .

RR Titus

ACTING JUDGE OF THE HIGH COURT

NORTH WEST PROVINCIAL DIVISION

 

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