The Minister for Local Government, Environmental Affairs & Development Planning, Western Cape Provincial Government v The Bitou Municipality and Lonwabo Miniawa Ronald Ngoqo

The second respondent was employed as Municipal Manager by the Bitou Municipality (first respondent) until his dismissal on 6 February 2012. His dismissal was referred to arbitration at the South African Local Government Bargaining Council, which set aside the dismissal as procedurally and substantively unfair and ordered reinstatement and compensation. The Municipality sought a review of the arbitration award in the Labour Court. On 29 November 2014, Lallie J granted the review application, setting aside the arbitration award and remitting the matter to the SALGBC. The employee applied for leave to appeal. Before that application was decided, the parties entered into a settlement agreement on 21 February 2019 wherein the employer abandoned the judgment and order of Lallie J, and the employee was re-appointed as Municipal Manager. The applicant (Minister) then brought a review application which succeeded before Nieuwoudt AJ on 13 August 2019, setting aside the settlement agreement and the appointment. The first respondent was granted leave to appeal on 9 October 2019. The applicant then brought this application under section 18 of the Superior Courts Act 10 of 2013 seeking immediate execution and operation of Nieuwoudt AJ's order pending the appeal.

• Whether exceptional circumstances existed to justify execution of the order pending appeal in terms of section 18(1) of the Superior Courts Act 10 of 2013
• Whether the applicant would suffer irreparable harm if the order was not executed pending appeal
• Whether the respondent would suffer irreparable harm if the order was executed pending appeal
• Whether the principle of legality and public interest considerations constitute exceptional circumstances and irreparable harm for purposes of section 18

The application was dismissed with costs, including costs of two counsel.

For purposes of section 18(3) of the Superior Courts Act 10 of 2013, an applicant seeking execution of an order pending appeal must prove on a balance of probabilities both exceptional circumstances and irreparable harm. The mere infringement of a right or principle (such as legality) does not per se constitute irreparable harm - there must be proof of actual adverse consequences. General assertions about public interest concerns or potential harm, without specific supporting evidence, are insufficient to discharge the onus under section 18(3). The court of first instance should not consider prospects of success on appeal in a section 18 application as this would constitute second-guessing its own judgment granting leave to appeal.

The court noted that there was nothing precluding the applicant from requesting the Labour Appeal Court to hear the appeal on an urgent basis in order that the court a quo's judgment may be confirmed, given that the matter had been treated urgently throughout its process. The court also observed that the Plettenberg Bay Rate Payers and Residents Association (amicus curiae) had made submissions principally directed at the prospects of success in the forthcoming appeal hearing, but the court did not engage with these given its view that prospects of success were not relevant to the section 18 application at first instance. The court noted that a key issue on appeal would be whether the decision of Lallie J in C1019/12 is a decision in rem.

This case provides important guidance on the interpretation and application of section 18 of the Superior Courts Act 10 of 2013, particularly in the context of administrative and labour law disputes involving public sector appointments. It clarifies that the mere assertion of public interest concerns or violation of the principle of legality, without specific evidence of actual adverse consequences and irreparable harm, is insufficient to justify deviation from the default position that execution of an order is suspended pending appeal. The judgment reinforces the principle established in UFS v Afriforum that infringement of a right per se does not constitute proof of irreparable harm - there must be evidence of actual adverse consequences. The case is significant in the South African public sector context as it addresses the tension between the principle of legality in public appointments and the rights of parties to settle disputes, and establishes the high threshold required to execute orders pending appeal in such matters.