On 28 May 2024 the Cape Town High Court granted applications declaring that the court’s earlier order setting aside the appointment of the municipal manager for the Knysna Municipality remains operative and executable, regardless of any appeal process against that order.

The default position in our law is that the operation and execution of a court order is suspended pending the finalisation of any appeal proceedings taken to challenge that order. However, section 18 of the Superior Courts Act, 2013, empowers a court to declare in exceptional circumstances that the order remains operative and executable regardless of any appeal process, if the applicant can show that:

• they will otherwise suffer irreparable harm; and
• the respondent will not suffer irreparable harm.

In this matter, the court found that exceptional circumstances existed in that the municipal manager had deposed to an affidavit in the earlier proceedings where he admitted that his appointment was irregular and unlawful. Nevertheless, he applied for leave to appeal the court’s judgment on meritless grounds, which amounts to an abuse of the court process. In addition, the senior position of municipal manager is of significant public importance, especially to the people of Knysna, and the continued occupation of that position by someone who accepted that his appointment was flawed would be contrary to the public interest.

On whether there was irreparable harm to the applicant, the court found that if its earlier order was suspended until an appeal process was finalised, the validity of any decisions taken by the unlawfully appointed municipal manager in the meantime would be placed in doubt and the Knysna Municipal Council would be prevented from commencing with the advertisement process for a new municipal manager.

On whether there was no irreparable harm to the respondent, the court pointed out that nothing in the court’s earlier order prohibited the unlawfully appointed municipal manager from re-applying for the position once it is advertised. Any loss of salary did not amount to irreparable harm in the court’s view. In any event, based on the facts apparent from the papers in the earlier proceedings, the unlawfully appointed municipal manager was imminently employable.

Accordingly, the court declared that its earlier order would remain operative and executable, despite any appeal process instituted by the unlawfully appointed municipal manager.

The case is Democratic Alliance v Speaker of the Knysna Municipal Council and Others (4247/2023; 4441/2023) [2024] ZAWCHC 141 (28 May 2024).