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[2015] ZASCA 95
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Thom v Ba-Plalaborwa Municipality (20236/14) [2015] ZASCA 95 (1 June 2015)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case
No: 20236/2014
Not
Reportable
In
the matter between
L
E THOM (PTY)
LIMITED
APPELLANT
and
BA-PHALABORWA
MUNICIPALITY
RESPONDENT
Neutral
citation:
Thom v Ba-Phalaborwa
Municipality
(20236/14)
[2015] ZASCA 95
(01 June 2015)
Coram:
Bosielo, Wallis and Willis JJA, Dambuza
and Meyer AJJA
Heard:
21 May 2015
Delivered:
01 June 2015
Summary
:
Mandamus – municipality sought an order by notice of motion to
be granted access through appellant’s property
to clear a
nuisance – it alleged that it could only gain access to the
site to be cleared through the appellant’s property
–
appellant disputed this and alleged that there were other access
points through which municipality could not gain access
to the site –
serious and genuine dispute of facts – whether the court below
should have granted the order –
the remedial work done by the
appellant – is the appeal moot – whether the appeal will
have any practical effect –
section 16 (2)(
a
)(i)
of the
Superior Courts Act 10 of 2013
.
ORDER
On
appeal from:
North Gauteng High Court,
Pretoria (Bam J sitting as a court of first instance):
The
appeal is upheld and the order of the court below is set aside and
substituted with the following:
‘
The
application is dismissed.’
JUDGMENT
Bosielo
JA (Wallis, Willis JJA and Dambuza, Meyer AJJA concurring):
[1]
The appellant is the registered owner of a property situated at 15
Von Wielligh Street, Phalaborwa Extension 1, Limpopo Province.
The
respondent is a local municipality which has jurisdiction in the
area, where the appellant’s property is situated. In
2012 the
appellant’s property was flooded, when storm water directed
into a stream across the municipality’s land adjacent
to it was
unable to flow away, because the latter property had become overgrown
and the stream was blocked by vegetation.
[2]
As a result of the flooding, and pursuant to an application by the
appellant, the North Gauteng High Court, Pretoria (Kubushi
J) granted
judgment in its favour on 17 October 2012 in the following terms:
‘
1.
The Respondent is ordered to immediately remove the nuisance caused
by the blocking and silting of the stormwater drainage canal
between
Potgieter and Cohen Streets, Phalaborwa Extension 1 Township by
immediately removing all soil, silt, foliage and/or any
other
material obstructing the flow of stormwater therein;
2.
In the event of the Respondent failing to complete the remedial work
necessary in order to comply with 1 above before 17 November
2012,
the applicant is hereby authorised to do such remedial work;
3.
Any costs expended by the Applicant pursuant to the remedial work
authorised in 2 above, is immediately payable by the Respondent
to
the Applicant upon presentation by the Applicant of certified copies
of all invoices to the Respondent reflecting the costs
expended in
connection therewith;
4.
The Respondent is ordered to commence with the construction and
installation of a subsurface drainage system along the entire
length
of the stormwater canal on or before 1 February 2013 and to complete
the construction thereof on or before 1 May 2013;
5.
In the event of the Respondent failing to commence with the
construction of the subsurface drainage system in 4 above,
alternatively
in the event of the Respondent commencing with
the construction thereof before 1 February 2013, but not completing
same by 1 May
2013, the Applicant is authorised to attend to the
installation of any of the three construction methods proposed in the
report
by N Kruger Consulting Engineers, dated 2 November 2011,
attached hereto as Annexure “O”;
6.
Any costs expended by the Applicant pursuant to the remedial work
authorised in 6 above is immediately payable by the Respondent
upon
presentation by the Applicant of certified copies of all invoices
reflecting the costs expanded in connection therewith to
the
Respondent;
7.
The Respondent is ordered to pay the costs of this application on a
scale as between attorney and client.’
[3]
It is common cause that the respondent, despite numerous reminders by
the appellant, failed to comply with the court order.
As a result,
the appellant, acting in terms of paragraphs 2 and 5 of the court
order, contracted Rimiro Construction Civil &
Building (Rimiro)
to do the remedial work during or about October 2013.
[4]
It was only during or about March 2014 that the respondent sent a
service provider Mame Projects CC to the site to commence
with the
remedial work. At this stage the appellant had already commenced with
the remedial work. According to the respondent,
the appellant
unlawfully erected a fence which effectively denied its service
provider access to the site to undertake the remedial
work. It
brought an urgent application for the demolition of the fence and an
order that its service provider be granted access
through the
appellant’s property. The main allegation was that there was
only one access point to the site where the remedial
work had to be
done through the appellant’s property on Von Wielligh Street.
[5]
In its answering affidavit, the appellant pertinently denied that the
respondent has to go through its property to reach or
gain access to
the site. It specifically stated that, contrary to what the
respondent averred, its property does not border on
Potgieter Street
where the respondent required access but on Von Wielligh Street.
Importantly, it alleged that the respondent could
gain access either
from Potgieter Street or by traversing other properties adjacent to
the canal.
The respondent disputed this
saying that it could not get access for unspecified heavy machinery
other than through the appellant’s
property.
[6]
Self-evidently this presented a serious dispute of facts which could
not be resolved on the papers. Neither of the parties requested
that
the matter be referred to trial or for oral evidence to resolve the
dispute. Notwithstanding the serious dispute on the facts,
the court
below proceeded to grant judgment in favour of the respondent on 20
May 2014. Aggrieved by the judgment, the appellant
is appealing to
this Court with the leave of the court below.
[7]
An applicant who approaches a court for final relief on notice of
motion where it has reason to believe that facts essential
to the
success of its claim will probably be disputed, chooses such a
procedure at its own peril. This is such a case. The appellant
pertinently disputed that the only access point to get to the site
was through its property. It gave details of alternative access
points which were available to the respondent.
[8]
As already indicated in paragraph 5, the respondent knew that the
issue of the access point was seriously disputed by the appellant.
Notwithstanding such knowledge, it elected to adopt motion
proceedings. As it was stated by this Court in
Tamarillo (Pty) Ltd
v B N Aitken (Pty) Ltd
1982 (1) 398 (A) at 430H:
‘
A
litigant is entitled to seek relief by way of notice of motion. If he
has reason to believe that facts essential to the success
of his
claim will probably be disputed he chooses that procedural form at
his peril, for the Court in the exercise of its discretion
might
decide neither to refer the matter for trial nor to direct that oral
evidence on the disputed facts be placed before it,
but to dismiss
the application. (
Room Hire Co (Pty) Ltd
v Jeppe Street Mansions (Pty) Ltd
1949
(3) SA 1155
(T) at 1168.)’
To
my mind this is a case where the court below should have referred the
matter for the hearing of oral evidence on this disputed
issue or
possibly to trial. It follows that the court below erred in granting
final relief in circumstances where there was a genuine
dispute of
facts on a material aspect of the case.
Room Hire Co (Pty) Ltd v
Jeppe Street Mansions (Pty) Ltd
1949 (3) SA 1155
(T) at 1168;
Plascon-Evans Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA
623
(A).
[9]
This conclusion would ordinarily have resulted in the appeal being
upheld and the matter being referred back to the high court
for the
hearing of evidence. But another matter came to the fore during the
hearing of the appeal. On 15 April 2014 the appellant’s
service
provider prepared a report which indicated that the remedial work
might be completed by 23 May 2014. Based on this, the
court enquired
from the appellant’s counsel before us, what the current status
of the remedial work was. Counsel for both
parties confirmed to the
court that the remedial work which had to be done in terms of the
court order of 17 October 2012 had been
completed. Self-evidently,
this rendered the appeal moot.
Section 16(2)(
a
)(i) of the
Superior Courts Act 10 of 2013 (the Act) provides that:
‘
When
at the hearing the issues are of such a nature that the decision
sought will have no practical effect or result, the appeal
may be
dismissed on this ground alone.’
[10]
The order which the respondent sought and which was granted by the
court below was, firstly to grant the appellant access to
the storm
water drainage canal between Potgieter and Cohen Streets, and
secondly to remove any fence or obstruction on the appellant’s
property which denied the respondent access. As alluded to in the
previous paragraph the remedial work has already been finished.
The
pertinent question is what practical effect any order as granted by
the court below would still have for the respondent, as
there is
nothing to be done. Manifestly, such an order will be an ‘academic
exercise with no practical effect’ now
or in the future.
Recently this Court reiterated the principle as follows in
Tecmed
Africa (Pty) Ltd v Minister of Health & another
[2012] 4 All
SA 149
(SCA) para 20-21:
‘
Finally,
courts should and ought not to decide issues of academic interest
only. That much is trite. In
Radio Pretoria
this Court
expressed its concern about the proliferation of appeals that had no
prospect of being heard on the merits as the order
sought
would have no practical effect. It referred to
Rand Water Board v
Rotek Industries (Pty) Ltd
2003 (4) SA 58
(SCA) para 26 where the
following was said:
“
The
present case is a good example of this Court's experience in the
recent past, including unreported cases, that there is a growing
misperception that there has been a relaxation or dilution of the
fundamental principle . . . that Courts will not make determinations
that will have no practical effect”.
The
cumulative effect of all of the factors that I have alluded to is
that no practical effect or result can be achieved in this
case. And
for those reasons the appeal was dismissed in terms of s 21A(1) of
the Supreme Court Act 59 of 1959.’
However,
were we to dismiss the appeal on this ground, manifest unfairness
would arise because the appellant would be left to bear
the burden of
an adverse order for costs in the high court.
[11]
I now turn to deal with the issue of costs. As already indicated in
paragraph 5, the court order which is on appeal before
us was made on
20 May 2014. According to a letter from Rimiro, they returned to the
site on 1 March 2014 to continue with the remedial
work. They
estimated that they would complete the remedial work by 23 May 2014.
Both parties are resident in the same area. The
appellant’s
property abuts the site where the remedial work had to be done whilst
the respondent has jurisdiction over the
area where the site is. Even
the most elementary investigation would have alerted them timeously
that the remedial work had been
done. This would have enabled them to
avoid any unnecessary appearance with concomitant wasted costs before
us. They failed to
do so. None of the parties was able to offer any
plausible or acceptable explanation. I find that both parties were
remiss and
are equally to blame. Equity and fairness dictate that
each party must bear its own costs. In the light of my conclusion
that the
court below should not have granted an order without hearing
evidence, its order cannot stand and each party should bear its own
costs in that court as well.
[12]
In the result the appeal is upheld and the order of the court below
is substituted with the following:
‘
The
application is dismissed.’
_________________
L.O.
Bosielo
Judge
of Appeal
Willis
JA (partially concurring and partially dissenting):
[13]
I agree with the order that Bosielo JA has proposed. In my opinion,
however, it is the aggregate of the following considerations
–
rather than any one of them taken on its own – that leads one
to this conclusion: (a) the obviousness of the error
of the decision
of the high court; (b) the bad behaviour of the municipality,
including the squandering of the of public funds
on needless
litigation and (c) the injustice of allowing the order of the high
court to stand, with the appellant being mulcted
in costs.
_________________
N.P.
Willis
Judge
of Appeal
Appearances:
For
Appellant :
J G Bergenthuin SC
Instructed
by:
Bernhard
Van der Hoven Attorneys; Pretoria
Rosendorff
Reitz Barry, Bloemfontein
For
Respondent :
J A Motsepe (with him M H Mphahlele)
Instructed
by:
Malesa
Attorneys; Pretoria
Mpobole
& Ismael Attorneys, Bloemfontein