Bojosinyane v Maroga and others (Leave to Appeal)

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: Mfenyana J
• Judgment Date: 18 August 2023
• Citation: 2023 JDR 3101 (NWM)
• Hearing Date: 03 February 2023
• Docket Number: UM197/2022
• Court: North West Division, Mahikeng

Mfenyana J:

[1]

On 31 October 2022, this Court per Mahlangu AJ made an order inter alia, dismissing an application brought by the applicant. The essence of that application was to obtain various orders, declaring

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and setting aside certain decisions of the respondents, in particular the 8th respondent (prayer 1); the 5th respondent (prayer 2); the 1st respondent (prayers 3 and 4); the 2nd respondent (also in respect of prayer 4) unlawful and invalid and set them aside. In addition the applicant sought an order reinstating him as the second respondent’s municipal manager.

[2]

This application for leave to appeal lies against the whole of the judgement and orders granted by Mahlangu AJ. It is dealt with pursuant to the provisions of section 17(2)(a) of the Superior Courts Act, 10 of 2013 (the Act)

[3]

The application is opposed by the first, second, third, fifth and seventh respondents only.

[4]

Mr Zisiwe appeared on behalf of the applicant and on behalf of the first and second respondents, Mr Muza appeared. Mr Monnahela appeared for the third, sixth and seventh respondents.

[5]

The grounds of appeal are as set out in the notice of application for leave to appeal, and are essentially that the Court erred, (i) in finding that the Minister had approved the appointment of the first respondent as an administrator on 10 October 2022; (ii) in not

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finding that the seventh respondent (the Executive Council) had complied with the provisions of section 139(2)(a) of the Constitution when it submitted a notice for intervention to the fifth respondent (Minister) on 13 September 2022 pursuant to its resolution of 7 September 2022 to invoke section 139(1)(b); and (iii) finding that the applicant’s contract of employment would lapse in November 2022, in circumstances where the administrator had no power to reduce the applicant’s term of office.

[6]

It is the applicant’s contention that the Minister made no mention of the appointment of the first respondent as an administrator for the second respondent (the Municipality). He further avers that the Minister, in any event, does not have the power to make such appointment.

[7]

Section 17 (1) of the Superior Courts Act 10 of 2013 states:

17 (1)

Leave to appeal may only be given where the judge or judges concerned are of the opinion that –

(a)

(i)

the appeal would have a reasonable prospect of success; or

(ii)

there is some other compelling reason why the appeal should be heard, including conflicting judgments on the matter under consideration;. . .

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[8]

An applicant for leave to appeal must show a sound and rational basis for the conclusion that the matter enjoys good prospects of success on appeal.

[9]

It was contended on behalf of the first and second...