AB Xuma Local Municipality and Another v Kunogqala Local Residents and Others (Leave to Appeal) (4146/2023) [2025] ZAECMHC 41 (27 May 2025)

IN
THE HIGH COURT OF SOUTH AFRICA

(EASTERN
CAPE DIVISION, MTHATHA)

CASE
NO.: 4146/2023

In
the matter between:

JUDGMENT

ON APPLICATION FOR
LEAVE TO APPEAL

ZONO
AJ:

Introduction

[1]       
This is an application for a leave to appeal against the judgment
granted and delivered
on 06^th February 2025. Application
for leave to appeal was delivered on 25^th February 2025.
Parties will be referred to as in the application for leave to
appeal. The Municipality and its Manager are the
applicants herein.
The respondents herein are Nogqala residents.

[2]       
Section 17(1) (a) of the Superior Courts Act 10 of 2013 provides
thus:

“(1)       
Leave to appeal may only be given where the judge or judges

(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;”

[3]       
An applicant for leave to appeal must convince the court on proper
grounds that there
is a reasonable prospect or realistic chance of
success on appeal. A mere possibility of success, an arguable case or
one that
is not hopeless is not enough. There must be a sound,
rational basis to conclude that there is a reasonable prospect of
success
on appeal[1].

[4]       
During argument, applicants’ Counsel wisely focused his
argument on two topics,
namely:

4.1      
First, dispute of facts which allegedly warranted the application of
Plascon-Evans principle[2].

4.2      
Second, the applicants argued that the order of this court infringes
the doctrine of separation
of powers. The court does not have power
to dictate to the Municipality as to when and how its duties have to
be performed.

Dispute of facts

[5]       
Regarding dispute of facts, the applicants argued that whilst the
respondents contend
that there is nothing that has been done to
construct the Nogqala road; the applicants on the other hand argued
that 500m metre
road had been constructed approaching from both sides
of the Nogqala bridge. With regard to the construction of the road on
both
sides of the bridge, the applicant relied on paragraph 38 and 44
of its answering affidavit which states as follows:

           
“38.    
Ad Paragraph 19 thereof

It is denied that the
respondents only appointed a contractor after receipt of the so
called statutory letter. The contractor was
appointed on 17^th
July 2023 and the statutory letter was only delivered to the Office
of the second respondent on 04^th August 2023 as is
evidenced by the endorsement on the last page of annexure “NM3”.
Furthermore, the supply chain and procurement processes take time and
the project specification for the construction of
the Nogqala Bridge
had already been published on 14^th April 2023.The
allegation that “nothing is being done with the fact that there
is no access road”[sic], is incorrect.
Incorporated in
construction of 500 meters of road approached either side of the new
bridge.

44.      
As stated above, incomplete structure left behind by the previous
contractor will be demolished
and the construction of an entirely new
bridge is in progress. It is not disputed that access to and from the
said village is currently
substandard, but steps have been taken by
the first respondent and the completion of the bridge and the 500
metres of new road
either of the bridge will provide adequate access
to and from the village. In these circumstances no mandatory or
supervisory relief
against the respondent are warranted.”

[6]       
The context in which the aforesaid allegations were made was the
answer to the allegations
of construction of the Nogqala Bridge.
These allegations were answering a complaint about the failure to
construct the Nogqala
bridge. The allegations themselves demonstrate
that the alleged 500 metre road was constructed in the context of
constructing a
bridge. It would be inconceivable that a bridge would
be constructed only in the river space or area and beyond the river
nothing
would be done. The said new road was built as part of the
Nogqala bridge for which a tender had been issued and appointment
been
made.

[7]       
As Lord Steyn said in Secretary
of the State for the Home Department, Ex Parte Daly[3]
“In
law, context  is everything.”
This dictum
was approved by the Supreme Court of Appeal.[4]
The Municipal Manager, Mr K.L Mulaudzi duly appointed in terms of a
letter dated 17^th
July 2023  Limiculture
Rural
Empowerment
J.V Lakhiwe General Trading,
which appointment was for the construction of Nogqala Bridge. This
appointment took place after Uxhanti
Builders and services JV BPKL Trading Enterprise
who was appointed for the construction of the Nogqala Bridge in terms
of the letters dated 30^th
August 2021 failed to perform in terms of the agreement. No separate
independant appointment was ever made for the construction
of the
road. The alleged 500 metre road approaching from both sides of the
bridge was constructed as part of the bridge. It is
reiterated that
it was in the context of constructing the bridge that the alleged 500
meter approaching from both sides of the
road was constructed.

[8]       
Even if I am wrong with regard to the aforesaid context in which 500
metre road approaching
from both sides of the road was constructed, I
would still find that a benevolent Samaritan constructor constructed
the road without
the blessings of the Municipality. That is so
because there was no appointment at all made by the Municipality to
construct the
Nogqala road, notwithstanding Municipality’s
express acknowledgement that such road is substandard. I therefore
find that
applicants’ argument is untanable.

[9]       
Lastly, it is common cause that applicants Integrated Development
Plans (IDP) including
the one for 2023-2024 financial year do not
have in them any plan  for the construction of the Nogqala Road.
The one for 2023-2024
financial year provides a standard purpose of
the IDP as follows:

“This
infrastructure master plan is intended to create a vison for Dr AB
Xuma Local Municipality in order to guide decision making
process and
provide a basis for a comprehensive planning framework relating to
the roads and storm water, transport and electricity
infrastructure.”

[10]     
There is no vison at all that has been created in order to guide
Municipality’s decision
making process relating to the
construction of Nogqala road. No planning framework at all has been
provided as a basis for the
construction of Nogqala Road. In the
interest of accountability[5],it
would  be expected of the Municipality to advise  the
respondents from time to time of what had happened  and
what
would happen  going forward with their request for the
construction of the road.

Separation of
Powers

[11]     
With regards to the second argument relating to the doctrine of
separation of powers, I find
that this argument is equally without
merit.  On this subject, Baxter[6]
neatly puts it thus:

“Without statutory
authority the court may not venture to question the merits or wisdom
of any administrative decision that may be in dispute.
If the court
were to do this, it would be usurping the authority that has been
entrusted to the administrative body by the empowering

legislation.”[7]

[12]     
This court only directed the applicant to take all steps necessary
for or with a particular aim
to commence and finish the described
Nogqala Road.  The second order takes the form of a structural
interdict or order. Nothing
in both orders usurps the duty of the
Municipality. It is clear that the Municipality has failed to perform
its statutory and constitutional
duties or take the steps statutorily
and constitutionally prescribed to commence and also finish the
construction of the road.
I therefore come to the conclusion that
this court has not in any way usurped the powers of the Municipality.

[13]     
Accordingly, the application for leave to appeal must fail with costs
as there would be no prospect
of success on appeal.

[14]     
In the result I would make the following order:

           
14.1   
Application for leave to appeal is dismissed with costs.

A.S ZONO

ACTING JUDGE OF THE
HIGH COURT

APPEARANCES:

For
the Applicants            
           

:ADV  GENUKILE

           
Instructed
by                      

:TSHIKUKUVUHE M INC

248 THOHOYANDOU P-EAST

Office No:7 and 8

Muremela Medical
Centre

Murangi Street

Tel:015
023 0832

Cell:076 291 4034

Ref: TMA/CIV.16/2025

Email:
tshikukuvhemattorneys@gmail.com

c/o                 
:BRAUNS NYEMBEZI INC

Office No 2 Phyllis
Court

49 Cumberland Street

Mthatha

           
Tel:047
531
1454

Email:
admin@binc.co.za
          

For the Respondents
       :          
MR NKELE

           
Instructed
by          
:          
T.A
NKELE & SONS INC

            56
Wesley Street

           
MTHATHA

           
Ref:TAN*I01838/nm/H/C

           
TEL: 047 531
0721/2

           
Email:
t.n.nkele@mweb.co.za
              

Matter heard on
                
:          
16 May
2025

Judgment delivered on
   :          
27 May 2025