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SWARTBOOI, NTLELI GABRIEL 1St Applicant TSOAI

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SWARTBOOI, NTLELI GABRIEL 1St Applicant TSOAI 5 IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA CASE NO : In the matter between : SWARTBOOI, NTLELI GABRIEL 1st Applicant TSOAI, GODFREY MOJAKI 2nd Applicant THEDISI, SABATA ELIAS 3rd Applicant MATSEPE, SANAH MOTSHEHOANE 4th Applicant MATUBE, DANIEL NGAKE 5th Applicant PHOLO, JACOB 6th Applicant NDONGA, TSIETSE ANDRIES 7th Applicant LETSHOARA, KHUMISI JOSEPH 8th Applicant MOLETSANE, MOLIFI ERNEST 9th Applicant SWARTBOOI, NTSOKOLO APRIL 10th Applicant MEPHA, MERRIAM PULANE 11th Applicant KGANG, BETHUEL POGISHO 12th Applicant MOLISENYANE, KONTSANE JONAS 13th Applicant MATHIBE, MAKGOBE REGINA 14th Applicant LEKHELEBANE, LIPHAPANG DAVID 15th Applicant MASUMPA, TLANGANISO ISHMAEL 16th Applicant LESEANE, MARTHA DIKELEDI 17th Applicant MOGOJE, THEKO AUBOU 18th Applicant and BRINK, LILIAN RAY 1st Respondent NIEUWOUDT, GERITT 2nd Respondent FOUNDING AFFIDAVIT I, the undersigned, NTLELI GABRIEL SWARTBOOI do hereby make oath and say : 6 1 I am an adult male employed at the Civic Centre, Preller Street, Bothaville. I am the speaker of the Municipality of Nala Local Municipality. I am the First Applicant in this matter. 2 The facts contained herein are within my personal knowledge and are both true and correct. 3 The Second Applicant is GODFREY MOJAKI TSOAI, an adult male Councillor of the Nala Local Municipality who resides at 351 Mpomela Street, Kgotsong, Bothaville. The Second Applicant is also the mayor of the Nala Local Council. 4 The Third Applicant is SABATA ELIAS THEDISI, an adult male Councillor of the Nala Local Municipality who resides at Stand No.3697, Monyakeng, Wesselsbron. 5 The Fourth Applicant is SANAH MOTSHEHOANE MATSEPE, an adult female Councillor of the Nala Local Municipality who resides at 808 Swartbooi Street, Monyakeng, Wesselsbron. 7 6 The Fifth Applicant is DANIEL NGAKE MATUBE, an adult male Councillor of the Nala Local Municipality who resides at 1939 Phola Street, Monyakeng, Wesselsbron. 7 The Sixth Applicant is JACOB PHOLO, an adult male Councillor of the Nala Local Municipality who resides at Wesselsbron. 8 The Seventh Applicant is TSIETSE ANDRIES NDONGA, an adult male Councillor of the Nala Local Municipality who resides at 3190 Mokgage Street, Kgotsong, Bothaville. 9 The Eighth Applicant is KHUMISI JOSEPH LETSHOARA, an adult male Councillor of the Nala Local Municipality who resides at 2616 Kgotsong, Bothaville. 10 The Ninth Applicant is MOLIFI ERNEST MOLETSANE, an adult male Councillor of the Nala Local Municipality who resides at 2205 Sebotsa Crescent, Kgotsong, Bothaville. 8 11 The Tenth Applicant is NTSOKOLO APRIL SWARTBOOI, an adult male Councillor of the Nala Local Municipality who resides at 85 Mbuthu Street, Monyakeng, Wesselsbron. 12 The Eleventh Applicant is MERRIAM PULANE MEPHA, an adult male Councillor of the Nala Local Municipality who resides at 518Mogoaladi Street, Monyakeng, Wesselsbron. 13 The Twelfth Applicant is BETHUEL POGISHO KGANG, an adult male Councillor of the Nala Local Municipality who resides at 160 Church Street, Wesselsbron. 14 The Thirteenth Applicant is KONTSANE JONAS MOLISENYANE, an adult male Councillor of the Nala Local Municipality who resides at 536 Moalusi Street, Kgotsong, Bothaville. 15 The Fourteenth Applicant is MAKGOBE REGINA MATHIBE, an adult male Councillor of the Nala Local Municipality who resides at 2229 Maile Street, Kgotsong, Bothaville. 9 16 The Fifteenth Applicant is LIPHAPANG DAVID LEKHELEBANE, an adult male Councillor of the Nala Local Municipality who resides at 115 Mohau Street, Kgotsong, Bothaville. 17 The Sixteenth Applicant is TLANGANISO ISHMAEL MASUMPA, an adult male Councillor of the Nala Local Municipality who resides at 7598 Kgotsong, Bothaville. 18 The Seventeenth Applicant is MARTHA DIKELEDI LESEANE, an adult male Councillor of the Nala Local Municipality who resides at 1173 Motlhaoleng, Kgotsong, Bothaville. 19 The Eighteenth Applicant is THEKO AUBOY MOGOJE, an adult male Councillor of the Nala Local Municipality who resides at 926 Letsie Street, Kgotsong, Bothaville. 20 The First Respondent is LILIAN RAY BRINK, an adult female residing at 37 Greyling Street, Bothaville. 10 21 The Second Respondent is GERITT NIEUWOUDT, an adult male businessman whose further particulars are currently unknown to the Applicants. 22 All the Applicant have duly authorised their attorneys of record in this matter, Ramsurjoo-du Plessis Incorporated to bring this application on their behalf. In terms of the rules of the Court it is not necessary to annex the powers of attorney, but they can be produced, if necessary. I am a competent witness in this matter due to the fact that I have knowledge of the facts set out hereunder. 23 I make this affidavit in support of an application for leave to appeal in terms of Rule 20 of the Rules of the Constitutional Court against an order of the Supreme Court of Appeal made on 5 July 2002, refusing the Applicants leave to appeal against the judgment of the Orange Free State Provincial Division of the High Court of South Africa delivered 31 January 2002 in terms of which the Applicants were ordered to pay the costs of the application under Orange Free State Provincial Division of the High Court of South Africa, case number 2125/2001 on the attorney and own client scale de bonis propriis. 24 HISTORY IN BRIEF 11 The brief history of the present matter is as follows : 24.1 On 13 June 2001 the Respondents issued a notice of motion in terms of Rule 53 of the Rules of the High Court, citing me, in my capacity as the speaker of the Municipal Council of the Nala Local Municipality as the First Respondent and the Nala Local Municipality as the Second Respondent. In terms of this notice of motion the Respondents requested the High Court to review certain decisions of the Nala Local Municipality, to which more detailed reference will be made hereunder, and requested that the Nala Local Municipality be ordered to pay the costs of the application on the attorney and client scale. This application was opposed and affidavits were exchanged. The record of the proceedings before the Orange Free State Provincial Division of the High Court is annexed hereto as “NGS2". 24.2 On the 10th of December 2001 the Orange Free State Provincial Division of the High Court of South Africa delivered a judgment (Coram Malherbe JP and Cillié J) in terms of which the Respondents’ application for the review of decisions was upheld. Furthermore, the court mero motu issued a rule nisi with a return date 12 of 31 January 2002 in terms of which all the members of the Municipal Council of the Nala Local Municipality were called upon to show cause why they should not be ordered to pay the costs of the application on the attorney and own client scale de bonis propriis. A copy of this judgment is annexed hereto as annexure “NGS3". 24.3 As a result of the rule nisi having been issued, the Applicants delivered an affidavit in opposition to the proposed cost order, which I annex hereto as annexure “NGS4". Another councillor, David Christie Ross, also delivered an affidavit, which I annex hereto as annexure “NGS5". 24.4 On 31 January 2002 the Orange Free State Provincial Division of the High Court confirmed the rule nisi and ordered the Applicants to pay the costs of the application on the attorney and own client scale, de bonis propriis. A copy of the Court’s judgment in this regard is annexed hereto as annexure “NGS6". 24.5 During February 2002 an application for leave to appeal was brought against the decision of the Orange Free State Provincial Division of the High Court. Such application is annexed hereto as annexure “NGS7". On the 15th of March 2002 13 the Orange Free State Provincial Division of the High Court dismissed the application for leave to appeal with costs. I annex hereto as annexure “NGS8" a copy of such judgment. 24.6 An application for leave to appeal, which is annexed hereto as annexure “NGS9", was directed to the Supreme Court of Appeal, requesting leave to appeal against the decision by the Orange Free State Provincial Division. On 5 July 2002 such application for leave to appeal was refused with costs. I annex hereto as annexure “NGS10" a copy of the order. As is customary, the Supreme Court of Appeal did not furnish any reasons for its decision. 25 THE DECISION IN RESPECT OF LEAVE TO APPEAL IS SOUGHT 25.1 The attention of the Honourable Court is drawn to the fact that the application for leave to appeal brought in the High Court and in the Supreme Court of Appeal was directed against both the decision to review the decisions of the Municipal Council of the Nala Local Municipality and the cost orders granted against the abovementioned Applicants in their personal capacities. 14 25.2 However, based on advice that was received subsequent to the dismissal of the application for leave to appeal by the Supreme Court of Appeal, it was decided not to persist with the appeal against the judgment in terms of which the decisions of the Local Council was reviewed and set aside. 25.3 Furthermore, the Respondents resigned as members of the Nala Municipal Council on the 11th of December 2001, the day after the judgment on the review application was delivered. An appeal in respect of the merits of the review will therefore be academic. The order in respect of the review itself became academic once the Respondents resigned. In view of the resignation, it is not clear why the application for review was brought in the first place. 25.4 However, the Applicants wishes to appeal against the decision by the High Court in terms of which they were ordered to pay the costs of the application de bonis propriis. 25.5 As stated above, and in the notice of motion, the purpose of this application is to obtain leave to appeal against the refusal of the Supreme Court of Appeal to grant leave to appeal.
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