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REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

(LIMPOPO DIVISION, POLOKWANE)

 

CASE №: 13268/2022

REPORTABLE: YES/NO

OF INTEREST TO OTHER JUDGES: YES/NO

REVISED

 

In the matter between:

 

DEMOCRATIC ALLIANCE	1ST APPLICANT
JOHANNA ELIZABETH ALBERTINA SWANEPOEL	2ND APPLICANT
And
THE COUNCIL OF THE THABAZIMBI LOCAL	1ST RESPONDENT
MUNICIPALITY
JUDITH MOTSEI MOGAPI	2ND RESPONDENT
TSHEGOFATSO RAMOABI	3RD RESPONDENT
LETSEKA GLADWIN TLOUBATLA	4TH RESPONDENT
KEDISALETSE JOHANNES MATLOU	5TH RESPONDENT
BUTANA BEN TLHABADIRA	6TH RESPONDENT
LINDIWE MAKAYA	7TH RESPONDENT
THAVANESHAN CHETTY	8TH RESPONDENT
SEGALE SETSWE PILANE	9TH RESPONDENT
JOHANNES JACOBUS VAN DER MERWE	10TH RESPONDENT
TEBOGO MAHESO	11TH RESPONDENT
MEC FOR THE CORPORATIVE GOVERNANCE	12TH RESPONDENT
HUMAN SETTLEMENT AND TRADITIONAL
AFFAIRS, LIMPOPO PROVINCE
THABAZIMBI LOCAL MUNICIPALITY	13TH RESPONDENT

 

Heard:          28 February 2023

Delivered:    16 March 2023 by circulation to the parties’ legal representatives

 

JUDGMENT

 

PILLAY AJ:

 

Introduction

 

[1]      The matter before Court came as an urgent application on an amended notice of motion. The applicants seek the Court to dispense with the normal requirements pertaining to the rules and formalities in respect of timelines in terms of rule 6(12) insofar as it pertains to urgency in respect of this application. The applicants notice of motion is for an order to have the Court review and set aside resolutions passed on the 21 October 2022 and on the 1 December 2022. The applicants have filed its founding affidavit in support of same. The application is opposed with the respondent filing their opposing affidavit. The applicants filed a reply. Both parties submitted heads of arguments pertaining to the application.

 

[2]      The applicants seek to have the decisions made at the special counsel meeting of the Thabazimbi Local Municipality on the 21 October 2022 wherein the following was decided set aside;

 

a)              the motion of no-confidence and resultant removal of the 2nd applicants as Mayor;

 

b)              the motion of no-confidence and resultant removal of the 6 respondent as Speaker;

 

c)               the appointment of the 2nd respondent is the new Mayor;

 

d)              the appointment of the 3rd respondent is the new Speaker;

 

e)              the dismissal of the 7th respondent as the acting Municipal manager.

 

Thereafter declaring;

 

f)                the 2nd applicants to be the incumbent Mayor of the Thabazimbi Local Municipality; and

 

g)              the 6th respondents to be the incumbent Speaker of the Thabazimbi Local Municipality.

 

h)              The 7th respondent to be the incumbent Acting Municipal Manager of the Thabazimbi Local Municipality.

 

[3]      In respect of the 1 December 2022;

 

a)              the dismissal of the 8th respondent as the acting Chief Financial Officer;

 

b)              the appointment of the 4th respondent as the new Municipal manager;

 

c)               the appointment of the 5th respondent as the acting Chief Financial Officer;

 

d)              the dismissal of the 10th respondent as the acting Corporate Service Director.

 

e)              The appointment of the 11th respondent as the acting Corporate Service Director.

 

Thereafter declaring;

 

f)                The 8th respondent to be the incumbent Acting Chief Financial Officer of the Thabazimbi Local Municipality.

 

[4]      The applicants sought cost orders in the event of any of the respondents opposing the application on attorney client scale jointly and severally the one paying the other to be absolved.

[5]      the applicants sought that the Court grants leave to the applicants to amend the notice of motion in accordance with the amended notice, and to file a supplementary founding affidavit dated the 8^th February 2023.

 

Brief Background

 

[6]      The Thabazimbi Municipal Council consists of the relevant parties before Court. A Special Counsel meeting was scheduled for 10H00 AM on the morning of the 21^st October 2022. Prior to the commencement of the meeting a group of people gathered outside the municipal building protesting. This led to a certain amount of disruption of the said meeting. According to the applicants the meeting was subsequently adjourned on the perceived threat to the safety of the councillors as well as the public.

 

[7]      According to the applicants despite the adjournment, ANC councillors remained in the Council chamber where they continued with the meeting. The agenda was extended to include a vote of no-confidence in the Speaker (6^th respondent) and the Mayor (2^nd applicant). These decisions were passed. The 2^nd respondent was elected new Mayor of the Thabazimbi Municipal Council. The 3^rd respondent was appointed the new Speaker of the Council. The 7^th respondent was also dismissed as acting Municipal Manager, being replaced by the 9^th respondent.

 

[8]      A further Special Council meeting was convened by the 3^rd respondent, now as the newly appointed Speaker of the Council, on 1 December 2022 which led to the following resolutions being adopted. The 8^th respondent was dismissed as the acting Chief Financial Officer. The 10^th respondent was dismissed as the acting Corporate Service Director. The 4^th respondent was appointed as the new Municipal Manager. The 5^th respondent was appointed as the acting Chief Financial Officer. The 11^th respondent was appointed as the acting Corporate Service Director.

 

[9]      The applicants seek that all of these decisions that were taken be reviewed, set aside and to a certain extent the status returned to the way it was prior the date of the 21^st October 2022. The basis for this argument is that there was noncompliance insofar as notice to the relevant parties were concerned in respect of this vote of no confidence which was placed on the agenda, in their absence, without there being a quorum to constitute a legitimate meeting. All this was done in contravention of the, Municipal Structures Act 117 of 1998, the Council rules and the Constitution of South Africa. In short all the processes that followed from that meeting was illegal and as such the Court is obliged to review and set aside the impugned decisions taken at that meeting resulting in the consequent decisions falling away.

 

[10]    The application is opposed by the 1^st,2^nd,3^rd,4^th,5^th,9^th,11^thand 13^th respondents on the merits of same but most importantly on the issue of urgency. In amplification I have tried to consider same by date sequence as recorded below. This however may not be all the proceedings concerning the parties, but an attempt at the chronology of the sequence of events for purposes of determining urgency and merits.

 

1.               The respondents indicate that the matter is not urgent as this application was issued on the 7^th December 2022 and served on the respondents on the 8^th December 2022 for hearing on the urgent Court roll of 21 December 2022. This said application was removed on the 12 December 2022.

 

2.               The resolution which was adopted by the Council on the 21 October 2022, and 1 December 2022 have far-reaching consequences, and yet it is not clear why the applicants took almost seven weeks before approaching the Court in respect of same.

 

3.               In the applicants explanation, it was indicated that the 6th respondent had approached the Magistrates Court on an ex parte basis for a Court order which halted the new Council till the 22 November 2022, when the said order was subsequently to a certain extent set aside and where granted had been taken on appeal by the respondents.

 

4.               The applicants only consulted their attorney after 22 November 2022 concerning this situation and only after the December appointees sought access to the Municipal Bank accounts was the application sought on an urgent basis to prevent such access being granted.

 

5.               The removal of this application in December 2022 was as a result of another review application of the proceedings of the 21^st October 2022 under case number 13207/2022, brought by the 6th respondent including an urgent ex parte application in the Magistrate’s Court for an order interdicting access to the Municipal bank account with the return date of the 20 January 2023. The interim interdict was postponed to the 10 February 2023.

 

6.               This application with supplementary affidavit of the 2nd applicant serves to seek urgent relief for the review as sought previously, the urgency is based on the recent Court orders brought ex parte by the respondents in case numbers 475/2023(24/01/23) and 762/2023(9/03/23) granting the respondents access to the relevant bank accounts and prohibiting the 6th and 7th respondents from performing acts and duties that they were discharged from in respect of the running of the Municipal affairs. These ex parte orders were sought whilst the respondents were ordered by the Magistrate Court not to touch the bank accounts and failing to disclose this information to the Court at the ex parte application was an untenable situation.

 

7.               The applicants further motivated that the 1st applicant has anticipated the return dates of both those applications so that they could be considered with this review proceedings in light of the fact that it flowed from same impunged decision. The accessing to the Bank accounts have resulted in funds being dissipated from the Municipal bank account and same being used for irregular purposes.It is based on the aforesaid that urgency was motivated for this Review to proceed.

 

[11]    These abovementioned applications involving the different litigants are all still pending before the various Courts at various stages, with all stemming from the incident of the 21^st October 2022. On appearing in Court it was established that the urgent Review application was opposed by one Counsel whilst the other two anticipated interdict proceedings case numbers 475/2023(24/01/23) and 762/2023(9/03/23) were opposed by another Counsel. The Applicant elected that the Court proceed with this application first and thereafter the other applications.

 

[12]    In light of the aforesaid, reference to the circumstances and allegations concerning the two cases as mentioned above will not be repeated herein, save where necessary and only where it has baring on this Review application.

 

[13]    The applicants maintain that the matter is inherently urgent and if the Review application is not attended to, amidst the shortcomings in respect of the file in that there were no heads of argument, or practise directive submitted by the respondents, based on the urgency and the straightforward issues to bare this matter was ripe for hearing. The respondent acceded to same and handed in their draft document for their heads of argument.

 

[14]    The applicant indicated that the abuse of public power especially in respect of the circumstances of this matter must urgently be corrected with these appointments being set aside due to the illegal and unconstitutional manner in which they were obtained. To proceed by normal course to have these decisions set aside will materially affect the operations of the Municipality and the service which it delivers. The applicant referred the Court to the case of Democratic Alliance v National Commissioner of Correctional Services; Helen Suzman Foundation v National Commissioner of Correctional Services; Afriforum NPC v National Commissioner of Correctional Services[1] wherein the Court held;

 

“In Apleni, it was held that where allegations are made relating to abusive power by a Minister or other public official, which may impact the rule of law and have a detrimental impact on the public purse, the relevant relief sought ought normally to be urgently considered. The alleged abuse of power in the present proceedings if proven would impact the rule of law and the matter is accordingly urgent.”

 

[15]    The respondents argue that the urgent need for this said application was already from the time of the decision to remove the 2^nd applicant yet she did nothing in respect of protecting her own rights and those of her constituents. She relied on the 6^th respondent’s applications in the various Courts wherein she was a respondent, which was indicative of her wait and see attitude, “if he fails she would proceed.” Thus, an inherent lack of urgency was depicted by her conduct in respect of the manner in which these proceedings were prosecuted.

 

[16]    According to the respondent the removal of the urgent review application was based on the 2nd interim order issued out of the Magistrate’s Court wherein the 2^nd applicant was a respondent. However, the applicants did not elaborate on what motivated the decision in respect of the removal of this review process which would have brought finality to the issue instead of relying on temporary protection afforded by the interim interdicts.

 

[17]    The Respondents argued that sudden urgency now appeared from the supplementary affidavit based on the respondent’s access to the banking accounts, according to the applicant which now created the dire situation to approach this Court on urgency, in light of the financial affairs being affected. The respondents argue that there is no merit for the applicants to rely on these circumstances to claim urgency and the application should be dismissed especially as there is currently a review concerning the very same circumstances pending before this Court.

 

 [18]   The respondent highlighted that the applicants did not set out explicitly the circumstances allegedly rendering the matter urgent especially the 2^nd applicant in respect of the time frame which passed before Counsel’s advice was sought and the 1^st application drafted and removed from the roll.

 

 [19]   The respondents sought that the matter be struck from the urgent roll with a punitive cost order due to lack of urgency.

 

The Merits

 

[20]    The applicant argued that in respect of the adjournment of the meeting by the 6^th respondent, regardless of what motivated same, the decision by the remaining members in the Council chambers to continue was irregular as it denied the members who were not present from participating in the proceeding especially as there was no notice afforded these members.

 

[21]    The applicants argue that the decision to remove the Mayor and Speaker was in contravention of section 53 and section 40 of the Municipal Structures Act 117 of 1998 as there was no prior notice of an intention to move a motion of no confidence in either parties nor was there notice given to them according to the legislation. The decision to entertain this motion on the agenda was irregular, the prescriptive provisions of the said act was not complied with, and as such falls to be reviewed and set aside. The decision was taken, in the absence of the affected parties without being given notice of same and being afforded their rights in terms of the principles of the audi alteram partem rule to have the opportunity to respond. This is opposed to the ethos as enshrined in the Constitution and the decision is destined to be reviewed and set aside on this basis alone.

 

[22]    The applicants allege that there was no quorum at this meeting for these resolutions to have been passed. The decision made was irregular and doomed to be set aside. The applicants argued that based on the aforesaid the court need not be distracted by the other ancillary issues and grant the relief sought.

 

[23]    The applicants sought costs against the individual respondents on account of the manner in which they conducted themselves at this meeting and in respect of the circumstances that followed. The applicants are normally conceded that costs are not sought against public officials exercising official duties save in the instance where such official acted with ulterior motive, gross negligence or malice. And that the circumstances warranted such order.

 

[24]    According to the Respondent the circumstances are not as simple as claimed by the applicants. The application was riddled with factual disputes namely:

 

[25]    i: -      Whether the meeting was adjourned.

This issue was not properly ventilated by the 2^nd applicant concerning the steps taken by the 6^th respondent to ensure that all the members were aware of the adjournment of the meeting. The bold allegation of the WhatsApp message is defective as it is a screenshot, which was attached in reply. There was no information regarding why the 6^th respondent was unable to inform the members present at the meeting of his decision to adjourn the meeting. It is unclear why on the 2^nd applicant’s version amidst this unruly protest, she succeeded in entering the Council chamber, and after being instructed by the 6^th respondent, she left its safety to return to where the unruly crowd was located.

 

[26]    ii: -      Whether a quorum was present when the resolution was adopted. The allegation of the lack of a quorum by the applicants, was based on hearsay evidence as the 2^nd applicant was not present. She failed to provide the source of the information pertaining to this allegation. The confirmatory affidavit by Xolisa Ntshatsheni, cannot be considered as it was only attached in reply.

 

[27]    iii: -     Whether the 2^nd applicant and the 6^th respondent had reasonable notice of the motions to remove them from their position.

According to the Respondent this version was improbable. 2^nd applicant and 6^th respondent were unaware of their intentions to call for a vote of no-confidence in them as several request were made for the convening of such a meeting which the 6^th respondent refused to arrange. The respondents argued that this affected the veracity of the factual allegations made by the 2^nd applicant concerning the said notice.

 

[28]    The respondents argued that due to the disputed facts which pertain to the heart of the application, the Plascon-Evans rule was applicable. In terms of this rule, an application for final relief must be decided on the facts stated by the respondent, together with those which the applicant states, and which the respondent cannot deny, on which its denials plainly lack credence and can be rejected outright on the papers.[2]

 

[29]    The respondents argued that in considering the application, the facts as contained in the answering affidavit, together with the admitted facts as stated by the applicants are the following:

 

I. The 2nd applicant and 6th respondent knew since September 2022 that both the ANC and TRA wanted to place on the agenda of a Special Council meeting, to be called by the 6th respondent, or by necessary implication, at the first next meeting of the Council, a motion for the removal of the 2nd applicant and 6th respondent would be tabled.

 

II. The 2nd applicant disingenuously decided to hide the aforementioned fact from the Honourable Court in the founding affidavit.

 

III. The contention that they did not receive reasonable notice of their intended removal is therefore factually without substance.

 

IV. Section 40 of the Local Government Municipal Structures Act 117 of 1998 have been complied with. The said section only required prior notice of an intention to move a motion for the removal of the Speaker, no further requirement is set. There was therefore substantial compliance with the said section and this basis for the review must fallaway.

 

V. The fact that the applicants tried falsely to create the impression that councillors were forcefully prevented from entering the Council chamber, is indicative of the fact that both the 2nd applicant and the 6th respondent knew very well that the ANC councillors supported by the TRA would move for their removal, and as such they decided to leave the the meeting in an effort to prevent a quorum being formed.

 

VI. When they failed to achieve this goal, the 6th respondent tried to adjourn the meeting, allegedly with a WhatsApp message. This message is disputed as it was not provided in the founding affidavit and the one attached to the replying affidavit is suspicious. This message in any event must be ignored by the Court as the respondent could not investigate the authenticity of the so-called screenshot and properly respond thereto.

 

VII. The quorum of the meeting is positively proved by the first-hand evidence of the 2nd respondent who was in attendance and also the quorum is substantiated by the attendance register.

 

VIII. The proceedings at the meeting were properly recorded and minuted, and there was strict adherence to the rules of order.

 

[30]    The applicant failed to make out a proper case for the reviewing and setting aside of the removal of the 2^nd applicant and 6^th respondent from their positions and the election of a new Speaker and Mayor. It follows therefore that the meeting on 1 December 2022 was convened lawfully. As the lawfulness of the calling of the meeting is the only ground on which the resolutions adopted at that meeting is attacked, the relief sought concerning that meeting can also not be granted.

 

[31]    The respondents contend that the matter is not urgent. The applicants failed to show that they would not be able to be afforded substantial redress at a hearing in due course. This is especially so because of the other two pending matters in which this Honourable Court has to decide the same issues between the same parties. The applicants failed to make out a proper case for the relief sought. The application in the event of not being struck from the roll, should be dismissed with costs.

 

          The Legal principles applicable to Urgent Applications:

 

[32]    The law on urgency is abundantly clear. Urgent applications must be brought in accordance with the provisions of rule 6(12) of the Uniform Rules of Court (“The Rules”), with due regard to the guidelines set out in cases such as Die Republikeinse Publikasies (Edms) Bpk vs Afrikaanse Pers Publikasies (Edms) Bpk^[3] as well as a well-known case of Luna Meubelvervaardigers (Edms) Bpk v Makin and Another.^[4]

 

[33]    The Court indicated that the procedure set out in Rule 6(12) is not simply there for the taking.^[5]  It confirmed the principle set out in a case of East Rock Trading 7 (Pty) Limited and Another v Eagle Valley Granite (Pty) Limited and others in which it was held:-

 

“The import thereof is that the procedure set out in Rule 6(12) is not there for the taking.  An applicant has to set forth explicitly the circumstances which he avers render the matter urgent.  More importantly, the applicant must state the reasons why he claims that he cannot be afforded substantial readdress at a hearing in due course. The question of whether a matter is sufficiently urgent to be enrolled and heard as an urgent application is underpinned by the issue of absence of substantial readdress in the application in due course.  The rules allow the court to come to the assistance of a litigant because if the latter, were to wait for the normal course laid down by the rules, it will not obtain substantial readdress.

 

It is important to note that the rules require absence of substantial redress.  This is not equivalent to irreparable harm that is required before the granting of an interim relief.  It is something less.  He may still obtain redress in an application in due course, but it may not be substantial.  Whether an applicant will not be able to obtain substantial redress in an application in due course will be determined by the facts of each case.   An applicant must make out his case in this regard.”^[6]

 

[34]    It is unfortunate that the principles as laid out in the various case law as far back as Luna Meubels in 1977 is still to date not being adheared to resulting in the need for Practice directives being issued by the various High Courts in SA. As the Court so explicitly noted in that matter:

 

“Practitioners should carefully analyse the facts of each case to determine, for the purposes of setting the case down for hearing, whether a greater or lesser degree of relaxation of the Rules and of the ordinary practice of the Court is required. The degree of relaxation should not be greater than the exigency of the case demands. It must be commensurate therewith. Mere lip service to the requirements of Rule 6 (12) (b) will not do and an applicant must make out a case in the founding affidavit to justify the particular extent of the departure from the norm, which is involved in the time and day for which the matter be set down”.[7]

 

[35]    At the time of hearing there were three matters on roll this matter and the interim order matters for reconsideration. This application consisted of approximately 350 pages, the practise note filed by the applicant, requested all the documents to be read and that at the time of hearing there was no practise note or heads of argument submitted by the respondents in respect of the matter. The applicants Counsel was clear that as much as the matter appeared voluminous the issue was crisp and easily identifiable. 

 

[36]     In the judgment of In re: Several Matters On Urgent Roll 18 September 2012 the Court held that: -

 

“Further, if a matter becomes opposed in the urgent motion court and the papers become voluminous there must be exceptional reasons why the matter is not to be removed to the ordinary motion roll.  ‘The urgent court is not geared to dealing with a matter which is not only voluminous but clearly includes some complexity and even some novel points of law.’  See Digital Printers vs Riso Africa (Pty) Limited case number 17318/02, an unreported judgment of Cachalia J delivered in this division.”^[8] (Own underlining)

 

and further in the Judgment the Court noted:

 

“Urgency is a matter of degree.  …  Some applicants who abuse the court process should be penalised and the matters should simply be struck off the roll with costs for lack of urgency.  Those matters that justify a postponement to allow the respondent to file affidavits should in my view summarily be removed from the roll so that the parties can set them down on the ordinary opposed roll when they are ripe for hearing, with costs reserved.”^[9]

 

[37]    The above principle was once again considered in the case of Mogalakwena Local Municipality v The Provincial Executive Council, Limpopo and others ^[10] in which the Court noted as follows;

 

“I proceed to evaluate the respondent’s submission that the matter is not urgent.  The evaluation must be undertaken by an analysis of the applicant’s case taken together with allegations by the respondent which the applicant does not dispute.  Rule 6(12) confers a general judicial discretion on a court to hear a matter urgently … 

It seems to me that when urgency is an issue the primary investigation should be to determine whether the applicant will be afforded substantial redress at a hearing in due course.   If the applicant cannot establish prejudice in this sense, the application cannot be urgent.

 

Once such prejudice is established, other factors come into consideration.  These factors include (but are not limited to):  Whether the respondents can adequately present their cases in the time available between notice of the application to them and the actual hearing, other prejudice to the respondent’s and the administration of justice, the strength of the case made by the applicant and any delay by the applicant in asserting its rights.  This last factor is often called, usually by counsel acting for respondents, self-created urgency.” (Own emphasis)

 

Applying the facts to the Legal Principles;

 

[38]    It is common cause that this application and the other various ones involving these parties, stem from a battle being fought between the political parties over the control of the Thabazimbi Municipality.

 

[39]    Both sides are passionate to convince the Court of the others ‘bad faith conduct’ and both strongly believe, that the manner in how they conducted themselves, was always in ‘good faith’ and in the best interest of the Municipality and the community, they are obliged to serve.

 

[40]    It is against this backdrop that this application for review of the decisions made on the 21 October 2022 and the 1 December 2022 respectively is based. The parties argued both the issue of urgency and thereafter the merits.

 

[41]    In opposing this application the respondents were hard-pressed to bring home to the Court the fact that this application was not, as claimed by the applicants, urgent. Moreover, Counsel for the respondents highlighted how just on urgency alone, this application was doomed to fail as there was no merit in bringing this application on an urgent basis.

 

[42]    In response the Applicants maintained that the issue of urgency was continuous and due to the most recent incident of unethical conduct by bringing an ex parte application for orders gaining access to the municipality bank accounts this set into motion the urgent amended review application.

 

[43]    When urgency is relied upon the Court must have regard as to the initial shift in circumstances, that force an applicant to approach the Court for protection. In this matter it is common cause that the meeting of the 26 October 2022 triggered this application.

 

[44]    The applicants are to a great extent silent concerning the period between the 27^th October 2022 and the 7^th December 2022 when the initial application was launched.

 

[45]    From the application it appears that the applicants were quite comfortable to leave the 6^th respondent, to litigate whilst it was favourable, and achieving the results that were potentially also being sought by the applicants. Motivation for this can be found in the fact that the applicants only sort legal advice in November 2022 and this was after the interim order granted to the 6^th respondent was anticipated for reconsideration, resulting in certain orders being discharged. The 2^nd applicant was one of the respondents in that application and aware of the various proceedings concerning this incident. The founding affidavit also did not state the exact date on which legal advice was sought by the applicants.

 

[46]    At the time this application was initiated on the 7 December 2022 approximately 5 to 6 weeks had passed. The applicants failed in their founding affidavit to grapple meaningfully with the reasons for delay. Especially in light of the applicant’s argument that the decisions made in October 22, with specific reference to non -compliance with section 53 and section 40 of the Municipal Structures Act 117 of 1998 was irregular and to be set aside.  

 

[47]    This application was scheduled for the urgent roll of the 20 December 2022. The application was served and filed. On the 12 December 2022 was removed from the roll. The applicants again failed to properly address the delay in pursuing the matter thereafter.  From the arguments raised it appears, that the 6^th respondent was again responsible for interrupting the respondents from accessing the finances of the municipality and thus the urgent need to set this matter straight was suspended.

 

This new amended application was now again enrolled urgently, because it seemed that the respondents were finally successful in getting access to the municipal funds and now this matter must be entertained urgently and ventilated.

 

[48]    Having heard the parties argue the issue of urgency, and after considering the arguments for and against this issue, I am hamstrung by the fact that the applicant’s urgency is self- created. The decision taken in October is almost 5 months old. The applicants were instrumental in the manner in which this review application was delayed. The eventual consequence of accessing the municipal funds was inevitable, flowing from that decision in October 22. The applicant’s failure to take the relevant steps to address the situation earlier, cannot be an excuse, to now rush to Court on an urgent basis to reverse that decision and get protection because the eventual consequence had occurred.

 

[49]    It is for these reasons and the others highlighted above that I am satisfied that the applicants have failed to establish urgency. Based on all that is said above, considering all the documents filed and after hearing the parties, I have to agree with the respondent that this matter is not urgent. The applicants themselves did not deem it to be urgent, motivation is found in the chronology of the time line involving the issuing and setting down of this matter on the urgent roll and concerning all the evidence in respect of the delay in prosecuting the review, the only conclusion to be drawn is that this application be struck off the roll for lack of urgency.

 

[50]     The parties both argued costs and after considering same the Court is of the view that the costs must be reserved to be determined when the application is heard on the merits, especially in light of all the allegations of impropriety by both sides and the specific cost orders sought by the parties.

 

In the result I make the following order:

 

1.     The application is struck off the roll for lack of urgency.

 

2.     The costs are reserved.

 

Pillay AJ

Judge of the High Court

Limpopo Division, Polokwane

 

APPEARANCES:

 

HEARD ON:                              28 JANUARY 2023

JUDGMENT DELIVERED ON:   15 MARCH 2023

 

FOR THE APPLICANT:	ADV.  SG GOUW
	ADV. L TALIJAARD
INSTRUCTED BY:	DE BRUIN OBERHOLZER INC.
	REF: DEM/16/0877/US5
	c.oberholzer@dbolaw.co.za
FOR THE RESPONDENT:	ADV.  A ROSSOUW
INSTRUCTED BY:	MOHALE INCORPORATED
	REF: NP MOHALE
	mohaleinc@gmail.com

 

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