Thulamela Municipality & another v Thovhele Midiavhathu Prince Kennedy Tshivhase & others

The Thulamela Municipality sold four properties (erven 21, 22, 26 and 27 Thohoyandou IA) to Valuline (Pty) Ltd in 2012, which were transferred by Deeds of Grant. On 18 February 2013, Khosi Tshivhase (a traditional leader) and the Tshivhase Traditional Council launched an application in the Limpopo High Court seeking to review and set aside the municipality's decisions to alienate the properties on grounds that the decisions were unconstitutional, illegal, arbitrary, irrational and taken without consultation. When the municipality failed to file its answering affidavit timeously and did not provide the required rule 53 record, the respondents launched an interlocutory application to compel production. The municipality opposed both applications and raised a point in limine challenging the respondents' locus standi on the basis that they had not proven they were recognized traditional leaders under the relevant legislation. Mpshe AJ heard the locus standi point as an exception in the interlocutory application and dismissed it with no order as to costs. The municipality appealed this dismissal.

• Whether the dismissal of an exception is appealable
• Whether the order of the court a quo was finally determinative of the rights of the parties
• Whether the relief sought in the main application was effective given that the properties had already been transferred

1. The matter is struck off the roll. 2. Each party is ordered to pay its own costs.

The dismissal of an exception, save an exception to jurisdiction, does not finally dispose of the issue raised by the exception and is therefore not appealable. A preparatory or procedural order is a simple interlocutory order and is not appealable unless it disposes of any issue or portion of the issue in the main action, or irreparably anticipates or precludes some of the relief which would or might be given at the hearing. An order dismissing an exception is capable of being reconsidered and is not the final word on the point raised.

The court observed, although not raised by the parties, that the relief sought in the main application (review and setting aside of administrative decisions to alienate properties) would likely be ineffective because the properties had already been transferred to Valuline by the time the application was launched. The court noted that in light of the abstract theory of transfer applying to immovables (as established in Legator McKenna Inc v Shea & others 2010 (1) SA 35 (SCA)), it would hardly assist the respondents to challenge administrative decisions that preceded the registration and transfer of property into Valuline's name, suggesting that the main application may be academic. This observation informed the court's decision to order each party to pay its own costs rather than making the usual costs order.

This case reaffirms the important procedural principle in South African civil procedure that the dismissal of an exception (other than jurisdictional exceptions) is not appealable as it is not finally determinative of the rights of the parties. The judgment confirms and applies the binding precedent established in Maize Board v Tiger Oats Ltd (2002) regarding appealability of interlocutory orders. The case also illustrates the court's willingness to consider issues mero motu that may affect the viability of proceedings, particularly where relief sought may be academic or ineffective due to changed circumstances, such as the completion of property transfers under the abstract theory of transfer.