Lesedi Local Municipality has kept a R20-million court debt out of the hands of a contractor for 17 months while its application for leave to appeal remains undecided.
But the Johannesburg High Court has warned the municipality that the legal protection keeping the contractor from collecting is no excuse for allowing the proceedings to languish.
“A statutory suspension is not an invitation to neglect the application which produces it. The Municipality must prosecute its application for leave with proper diligence,” the Acting Janse Van. Nieuwenhuizen said in a judgment delivered on Thursday, 8 October.
The dispute involves Anix Trading 587 CC, which performed work for the municipality, based in Heidelberg. After the dispute went to arbitration, Advocate Lisle Jo-Ann Mboweni issued awards in Anix’s favour in December 2023 and March 2024.
On 21 October 2024, Judge Bashier Vally made the awards an order of court, directing Lesedi to pay R20,044,322, together with legal costs on the punitive attorney-and-own-client scale.
Lesedi’s opposition was notably weak at that hearing. According to the judgment, the municipality had not filed heads of argument, and no counsel appeared to argue its case. A candidate attorney attended only to observe.
The municipality later maintained that it had applied for leave to appeal in October 2024, but that the application had disappeared from the court’s electronic filing system.
Judge van Nieuwenhuizen found that Lesedi had failed to prove that the application had been lodged with the registrar in October.
The judge was careful, however, not to go further than the evidence allowed. The failure to establish the earlier filing was “not a positive finding that the Municipality fabricated an application, or that a court official deleted it,”
The court found that the first verifiable electronic filing of the application for leave to appeal occurred at 5.07pm on 6 May 2025.
Because the document was filed after court hours, the rules treated it as filed on 7 May 2025. That was within the prescribed period, calculated from the written reasons Judge Vally supplied on 11 April 2025.
That finding proved decisive. Under section 18 of the Superior Courts Act, the filing suspended the operation and execution of the order while the application for leave to appeal remained pending.
The suspension did not, however, erase the earlier writ of execution.
Anix had attempted to execute against the municipality’s assets on 6 May 2025, before the later filing took effect. The court therefore refused to set aside the writ and the resulting attachment.
But it also rejected Anix’s attempt to establish that it could proceed with execution. The contractor had sought, among other relief, permission to execute despite the pending application for leave to appeal.
The court found that Anix had not established the requirements for such exceptional relief under section 18(3) of the Act.
The result leaves Anix with an enforceable court order for more than R20-million, but unable to take further steps to recover the money while the statutory suspension remains in force.
The delay has not gone unnoticed. The municipality had enrolled the matter for a hearing in February 2026, but it was removed because its practice note and heads of argument had not been updated. Lesedi partly attributed the difficulties to unpaid legal fees.
Anix also complained about the continued non-payment and the time that had passed since the court order. The judge acknowledged the significance of the delay but found that it did not, by itself, justify allowing execution to proceed while the statutory requirements remained unmet.
The judgment does not determine whether Lesedi will succeed in its proposed appeal. The municipality alleges that the arbitration award is flawed, including because of alleged duplicated payments and other irregularities. The judge made no finding on those allegations, which remain for determination in the appropriate proceedings.
The court ordered each party to pay its own costs of the main application. Anix must pay Lesedi’s costs of the contractor’s unsuccessful counter-application, including the costs of two counsel where employed.
For now, the R20-million order remains in place, but the contractor’s route to recovering the money is blocked by an application for leave to appeal that has yet to be decided.
