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[2021] ZAGPJHC 5
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City of Ekhuruleni Metropolitan Municipality v Mazibuko and Others (2020/26215) [2021] ZAGPJHC 5 (5 February 2021)
REPUBLIC OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, JOHANNESBURG
Case No.: 2020/26215
In the matter
between:
CITY
OF EKURHULENI METROPOLITAN MUNICIPALITY
Applicant
and
BAFANA MAZIBUKO
First Respondent
THOMAS NKUNA
Second Respondent
EMILY MOHLALA
Third Respondent
JERRY BULALA
Fourth Respondent
NGUBANE
EZEKIEL
Fifth Respondent
ABEL MALEDIMO
Sixth Respondent
BHEKI
BHEKI
Seventh Respondent
THE UNKNOWN
INDIVIDUALS UNLAWFULLY GATHERING,
INTERFERING,
INTERRUPTING, DISRUPTING, INTIMIDATING
AND PROVOKING THE
APPLICANT’S CONTRACTORS AND
EMPLOYEES WORKING ON
THE TSAKANE WAR ON
LEAKS 3
PROJECT
Eighth Respondent
CITY OF EKURHULENI
METROPOLITAN
POLICE
DEPARTMENT
Ninth Respondent
SOUTH AFRICAN POLICE
SERVICES
Tenth Respondent
JUDGMENT
This
judgment was handed down electronically by circulation to the
applicant’s legal representatives and to the respondents
and
also by publication on SAFLII and is deemed to be handed down by such
circulation.
Gilbert AJ
1.
The applicant is a municipality that has
appointed a panel of contractors to effect certain work within the
municipal area. The
applicant has appointed one of those contractors
to effect repair water leaks within its municipal area. The community
in which
the leaks are being repaired is dissatisfied with this state
of affairs and with the applicant’s engagement with them and,
so is alleged by the applicant, has sought to disrupt and prevent the
contractor from carrying out the repairs.
2.
The applicant seeks interdictory relief directed
at preventing the disruption of the contractor from carrying out the
repairs.
3.
The applicant has alleged that it has identified
the first to seventh respondents as leaders within the community who
have engaged
in this alleged disruptive activity, and so has cited
these natural persons as the primary respondents against which it
seeks interdictory
relief. I shall refer to the first to seventh
respondents, who are individually cited natural persons, as ‘the
opposing respondents”.
4.
Also cited, as the eighth respondent, is a
faceless, generic group of persons described as “
the
unknown individuals unlawfully gathering, interfering, interrupting,
disrupting, intimidating and provoking the applicant’s
contractors and employees working on the Tsakane War on Leaks 3
Project”
. No person falling within this
category has opposed these proceedings.
5.
The municipal and national police have been cited
as the ninth and tenth respondents respectively as they are directed
to give effect
to the relief, including to effect arrests of persons
who transgress the interdictory relief. They have not participated in
the
proceedings.
6.
On 22 September 2020 the court granted on an
urgent basis the applicant interim interdictory relief in the
following terms:
“
3.
The first to eighth respondents and any other interested person/s or
group/s are prohibited and
interdicted from:
3.1
trespassing, invading and or gathering at any place, area or on the
immovable property/properties
where the Municipality’s
contractors and or their employees are carrying out the works of War
on Leaks Phase 3 Project for
the purposes of: -
3.1.1
intimidating, obstructing, disrupting, interfering threatening and or
provoking in any manner, form whatsoever,
the Municipality’s
contractors, subcontractors and or its employees who are carrying on
with their works in the implementation
of the Tsakane War on Leaks
Phase 3 Project in around Tsakane and or any area where the project
is being implemented.
3.1.2
performing any act of violence or causing violence or making any
threat or instigating any threat by any other
means, such as throwing
stones, yelling insulting any authorised person/s on the
Municipality’s Tsakane War on Leaks Phase
3 Project.
3.1.3
instigating any person or member of the public to perform any acts
designed or designated to intimidate obstruct,
disrupt or interfere
with the Municipality’s appointed contractors or its employees
together with its subcontractors carrying
out the Municipality’s
Tsakane War on Leaks Phase 3 Project.
3.1.4
to conduct demonstration and or gathering, if they so wish, at any
place closer than 200 metres from the perimeter
of any of the
Municipality’s Tsakane War on Leaks Phase 3 Project.
”
7.
The court simultaneously issued a
rule
nisi
calling upon the respondents and any
other interested persons/s or group of people to show cause on
9 November 2020 why the
interim relief should not be made final.
8.
The interim order also provided for the following
relief:
“
4
The eighth and ninth respondents
[1]
are ordered to prevent the first to eighth respondents and/or any
other person or group of people from invading, trespassing and
or
provoking the Municipality’s contractors, sub-contractors and
their employees carrying out Municipality’s Tsakane
War on
Leaks Phase 3 Project.
[2]
6.
The members of the City of Ekurhuleni Metropolitan Police Department
and of the South African
Police Services are authorised and directed
to arrest any person/s or members of the first to eighth respondents
and any person
or group of people who contravene/s the order
stipulated in paragraph 3 above and that such a person/s so arrested
are to justify
on the return date on why they should not be
incarcerated for a period of not less than 30 days.
7.
The Municipality is granted leave to serve copies of the Court Order
and the application
as a whole on the first to eighth respondents or
on any other person/s or group of people through the sheriff by:
7.1
by affixing copy of the Court Order and the application on corner of
any area where the
Municipality’s and/or its contractors are
carrying out the Tsakane War on Leaks Phase 3 Project.
7.2
The eighth respondents and any other person/s or group/s who accepts
the service from the
sheriff is to identify themselves by their full
names and physical address to the Sheriff or his Deputy.
8.
Any person or group of people who intend/s to oppose the order in
paragraph 3 from being
made final are ordered:
8.1
to deliver their notice of intention to oppose on the Municipality’s
attorneys of
record, within 5 days of service of this Court Order and
the application on them, and
8.2
deliver their answering affidavit, within 10 days of delivering their
notice intention to
oppose.
9.
Such person/s or respondent/s who oppose/s the Municipality’s
application shall identify
themselves by name, their physical
address, gender and age when delivering their written intention to
oppose to the applicant’s
attorneys of record.
10.
All respondents who oppose the application shall forthwith be joined
as respondents, be identified as
such in the application and shall
have the rights and obligation as respondents in as far as it is
applicable to the rules of this
Honourable Court.
11.
In the event of any opposition the Municipality is granted leave to
supplement its founding affidavit
within 5 days from the date of
receipt of the notice of intention to oppose.
”
9.
The
applicant seeks that the interim relief be confirmed, including the
relief in paragraph 6. I raised my concerns with the formulation
of
the relief in paragraph 6 in particular as
inter
alia
it was unclear who would make the determination that the interdictory
order had been breached (there is no provision made for the
court to
determine whether the arrested person was in contempt and the
consequences thereof), what would happen after an arrest
was made
(was the arrested person to remain in custody?) and how the relief
would be given effect to as it was linked to
a return date that
would fall away if the order was confirmed. Applicant’s counsel
was nevertheless insistent that the relief
in paragraph 6 should be
granted, at least in some formulation and although it appeared that
the relief contemplated incarceration
as a sentence for a breach of
the order without the court having first determined whether there had
been contempt of the order
[3]
and what an appropriate sentence should be. The applicant’s
counsel did not seek to hand up an amended draft order
addressing the
concerns and motivating a particular form of final relief. The
applicant contended itself with simply seeking an
order that the
‘
rule
nisi issued by Justice Strydom on 22 September 2020 is hereby
confirmed
’
[4]
and appeared to require the court, if it was not prepared to simply
confirm the
rule
nisi
,
to craft some or other sensible order granting relief in a final
form.
10.
This is but one instance of the cavalier approach
that would be adopted by the applicant to its prosecution of its
application.
11.
The urgent relief was granted without any of the
opposing respondents having filed answering affidavits. There is some
confusion
as to whether or not the respondents were present when the
urgent order was granted, and if so which respondents were present,
particularly as the hearing was conducted by the urgent court
on a virtual platform and the respondents have throughout been
unrepresented.
12.
Be that as it may, the first respondent was able,
after the grant of the urgent interim relief, to deliver an answering
affidavit
on 28 September 2020. The first respondent states in
that affidavit that he acts on his behalf as well as on behalf of the
second to seventh respondents, that is all the opposing respondents.
13.
Attached to the first respondent’s
affidavit are confirmatory affidavits by the second to seventh
respondents, to which they
deposed at a police station on 23
September 2020.
14.
Whatever the difficulties may have been on 22
September 2020, the opposing respondents were sufficiently aware of
the proceedings
to have filed answering affidavits thereof, and so
have participated in these proceedings.
15.
Nonetheless, it is concerning that given the
far-reaching effect of the interim order, particularly should it be
confirmed, and
which places the opposing respondents at risk of being
arrested and incarcerated, that the applicant did not take steps to
ensure
that the interim order containing the rule
nisi
was properly served per sheriff on each of the first to seventh
respondents.
16.
The applicant in paragraph 66 of its
founding affidavit had undertaken through its attorneys to create a
WhatsApp group with
all the respondents’ numbers so as to bring
the contents of the application to their attention and that therefore
they would
not be prejudiced. I was informed by the applicant’s
counsel from the bar that no such WhatsApp group was created,
notwithstanding
this undertaking and presumably it having been relied
upon to persuade the urgent court to grant the relief that it did on
22 September
2020.
17.
Paragraph 67 of the founding affidavit that
served before the urgent court also states that the respondents would
“
properly be served
”.
The applicant states in paragraph 68 of its affidavit that
unfortunately the applicant had neither their email addresses
nor
their physical addresses.
18.
But whatever the position may have been when the
founding affidavit was prepared and the urgent relief granted on 22
September 2020,
the answering affidavit of the first respondent as
well the confirmatory affidavits of the other opposing respondents
contain physical
addresses and some even telephone numbers.
19.
Notwithstanding the applicant having this
information it did not produce any proof that the interim order had
been properly served
by sheriff on any of the respondents, including
the opposing respondents. Although there were indications from
the bar that
the applicant has so attended to do so, no returns of
service had been uploaded (filed) in the court file.
20.
Although the interim order expressly grants the
applicant leave to service copies of the interim order and the
application on the
respondents in a particular manner, there is no
evidence that the applicant did so.
21.
The applicant contented itself with submissions
that as the opposing respondents had filed answering affidavits and
at least some
of them had appeared in court on the various return
dates that this constituted adequate knowledge on their part in order
for the
rule
nisi
to
be confirmed, and that this excused any failure to properly effect
service upon them.
22.
I have already expressed my concern at this
approach by the applicant, particularly given the undertakings in its
founding affidavit
that it would effect service.
23.
The applicant also overlooks that there are other
respondents, other than the opposing respondents. There is no proof
that the interim
order was served on the ninth and tenth respondent
as the law enforcement bodies that the applicant seek enforce the
order.
24.
The applicant did not seek to craft an order for
final relief that is limited to the first to seventh respondents. The
applicant
persists in seeking that the faceless group of persons
described as the eighth respondent also be bound by a final order.
There
is no evidence that the applicant gave notice (or even
attempted to give notice) to those that may constitute this amorphous
grouping.
There is no evidence of publication of any sort, such as in
a local circulating newspaper. If final relief is granted as sought
by the applicant, the order may be used to enforce interdictory
relief, on the pain of incarceration, against persons who have
neither been cited nor served in any form with notice of these
proceedings or the interim order.
25.
The rule
nisi
not only calls upon the first to eighth respondents to show cause on
the return date why a final order should not be granted, but
also
upon ‘
any other interested person/s or
group of persons’
to show cause. In the
absence of adequate publication of the rule
nisi
,
it cannot be expected of such other interested persons or group of
persons to know of the rule
nisi
and show cause on the return date why final relief should not be
granted.
26.
As stated, the opposing respondents, although
unrepresented, were able by 28 September 2020 to file an
answering affidavit.
Although the opposing respondents were not
legally represented, the answering affidavit does put forth their
position with sufficient
cogency, responding substantively to the
applicant’s founding affidavit and making serious allegations
of and concerning
the conduct of the applicant and various
other persons, such as personnel of the contractor. The averments in
the answering
affidavit include assertions that the applicant
municipality and other role-players declined to engage constructively
in relation
to the community’s grievances, that certain of the
individually cited respondents were not part of the various
disruptive
behaviour that the applicant contends form the basis for
the relief that it seeks, that the contractor engaged by the
applicant
itself engaged in intimidatory conduct directed at the
community, that the contractor’s site agent Mr Xolani (who
furnished
a confirmatory affidavit to the applicant’s founding
affidavit) was unresponsive and evasive, and that those undertaking
the repairs are “
unknown individuals
”
who are not there to provide service delivery “
but
to milk the resources of the community and leave it with nothing to
salvage
”. The opposing respondents in
their answering affidavit express concern at the manner in which the
contractor was awarded
the project, contending that “
there’s
a lot to uncover from this project
” and
deny that the opposing respondents “
disrupted,
harassed and invaded site
”.
27.
These are self-evidently serious allegations
being asserted by the respondents who are leaders within their
community. It would
have been expected of the applicant municipality
to respond to these allegations by way of a replying affidavit. But
the applicant
chose not to. The explanation given by the applicant’s
counsel is that there was no need to do so because on the common
cause
facts, particularly as to what was admitted by the opposing
respondents in their answering affidavit, the relief was justified.
I
shall return to this when dealing with the merits of the application.
28.
The opposing respondents complain that the
applicant does not engage seriously with them. This complaint is
fortified by the applicant’s
decision not to respond by way of
a replying affidavit to the opposing respondents’ averments in
their answering affidavits.
Whatever the tactical legal motivation
not to deliver a replying affidavit, the applicant’s decision
not to respond to the
serious allegations made under oath by the
opposing respondents does not redound to the applicant’s credit
and is not conducive
towards a commitment to engage constructively
with the opposing respondents and the community that it serves.
29.
Upon the applicant electing not to file a
replying affidavit, there were no further affidavits outstanding. The
applicant was therefore
in a position as early as the end of
September 2020 to advance the prosecution of its interdictory
proceedings to finality, and
in particular to deliver heads of
argument. Given the far-reaching interim relief that it had been
granted, which included the
potential incarceration of persons
transgressing the order, it was incumbent upon it do so with
alacrity.
30.
But the applicant did not do so.
31.
The return date of the rule nisi was 9 November
2020.
32.
On Monday, 25 January 2021, when the matter was
first called before me, I invited the applicant to deliver a
supplementary affidavit
why the application should not be struck from
the roll, effectively discharging the rule nisi, on the basis
that the matter
was not ripe for hearing as there had been
non-compliance with the applicable practice manual and directives. I
stood down the
matter until Friday, 29 January 2021 for the applicant
to do so and for the opposing respondents to respond, should they
choose
to do so.
33.
The applicant did file a supplementary affidavit,
by the applicant’s attorney of record. The applicant’s
attorney
stated that the application should have been enrolled on the
opposed roll for 9 November 2020, but that “
for
reasons unknown to the applicant
” the
registrar enrolled same on the unopposed roll. The applicant appears
to fault the registrar for doing so. But the registrar
was entirely
correct.
34.
The
Practice Manual and September Consolidated Directive makes it clear
that a matter cannot be enrolled on the opposed roll unless
it is
ripe for hearing, which requires at the very least that affidavits
have been exchanged between the parties, with heads of
arguments and
practice notes.
[5]
I refer to my
judgment in
Chongqing
Qingxing Industry SA (Pty) Limited v Mingying Ye and four others
[6]
in which I deal fully with the necessity to comply with the relevant
procedures to ensure that a matter is ripe for hearing before
being
enrolled on the opposed roll.
35.
It is
therefore not surprising that the Registrar enrolled the matter on
the unopposed roll rather than the opposed roll, as the
matter was
not ripe to be enrolled on the opposed roll. The applicant had not
filed any heads of argument or a practice note
[7]
to enable the matter to be ripe for hearing on the opposed roll for 9
November 2020.
36.
On the return day, 9 November 2020, the
opposing respondents sought a postponement in order to attempt to
obtain the services
of an attorney. The court extended the rule
nisi
to 25 January 2021. Presumably, the applicant had obtained this
date from the registrar.
37.
Again, the applicant, now for the second time,
acted contrary to the Practice Manual. The applicant had obtained an
opposed date
from the registrar and had attended to enrol the matter
on the opposed roll for 25 January 2021 in circumstances where
through
its own continued default in complying with the relevant
practice manual and procedures the application was not ripe for
hearing.
38.
It would only be on 19 January 2021 that the
applicant would eventually deliver heads of argument and a practice
note and then only
after the omission had been pointed out in my
allocated roll and in my annotations to the Caselines file on 14
January 2021. The
applicant was oblivious to the procedural
requirements, whether because it was unaware thereof or because it
was unconcerned with
any need to comply with them. This is
unacceptable, especially as the applicant in its supplementary
affidavit does not demonstrate
any real concern at or contriteness
with these failings, or even an adequate realisation as to its
non-compliance.
39.
The applicant in its supplementary affidavit
creates the impression that it and the court indulged the respondents
on 9 November
2020 by extending the rule
nisi
to 25 January 2021. But this is not entirely
correct in that the applicant too was being indulged given that it
had done nothing
by that date to advance its own application, having
sought to enrol the matter on the incorrect roll. The applicant had
known since
28 September 2020 that the application was opposed by the
opposing respondents but it had done nothing to advance the hearing
of
the matter on an opposed basis, such as file heads of argument.
The matter was not ripe for hearing as an opposed matter on 9
November
2020 and was unable to heard as an unopposed application as
the opposing respondents had long since filed answering affidavits.
The rule
nisi
was
unlikely to be confirmed that day and the applicant needed the
postponement of the matter as much as the opposing respondents
did.
40.
As stated, it was because of this non-compliance
that I afforded the applicant an opportunity to deliver a
supplementary affidavit
motivating why the rule nisi should be
extended again (applicant’s counsel had mentioned during the
course of argument on
25 January 2021 that he had obtained a date in
March 2021 from the Registrar), rather than striking the matter from
the roll. I
pointed out that a striking may result in the discharge
of the rule nisi.
41.
I expressed reticence at extending the return
date again, especially as certain of the opposing respondents had
once again appeared
in court that day and were opposing any further
delay in the finalisation of the matter. The opposing respondents had
appeared
(or attempted to appear) on the day of the urgent
application on 22 September 2020, then appeared on 9 November 2020
and again
on 25 January 2021. The opposing respondents submitted that
they did not have the resources to repeatedly appear at court, as
they
were unemployed or had to attend work.
42.
In these circumstances, I stood the matter down
until Friday, 29 January 2021 to afford the applicant an
opportunity to file
a supplementary affidavit explaining its conduct
and why the application should not be struck from the roll.
43.
The supplementary affidavit does little to dispel
the impression that the applicant was conducting its prosecution of
the interdictory
proceedings at its own pace and contrary to
applicable procedures.
44.
The supplementary affidavit is deposed to by an
attorney from the applicant’s instructing firm of attorneys. It
does not contain
any substantive facts as to the prejudice that the
applicant will suffer should the rule
nisi
be
discharged, other than to make generalised statements. What would
have been expected, at the very least, is evidence by a deponent
with
personal knowledge as to what has transpired since the interim order
was granted in September 2020, including the position
on the
ground in relation to the Project and what engagement had taken place
with the opposing respondents and the community generally
to address
the issues.
45.
The applicant had in its founding affidavit
expressly recorded that it is not opposed to meeting with the
opposing respondents in
a peaceful manner to address any matters of
concern with them and relating to the Project. But there is no
evidence in the supplementary
affidavit that the applicant has made
any attempts to engage with the respondents, even after the opposing
respondents filed their
answering affidavit and appeared in court on
the previous return date.
46.
The supplementary affidavit shows no appreciation
of the failure by the applicant to comply with the relevant
procedures. I have
already dealt with the applicant’s erroneous
assertion that the registrar had incorrectly enrolled the matter on
the unopposed
roll for 9 November 2020. I have also already
dealt with the applicant’s attorney incorrectly seeking to
characterise
the further extension of the rule nisi from 9 November
2020 to 25 January 2021 as having been occasioned only by the
opposing respondents
wanting to obtain the services of an attorney.
47.
It
also appears from the supplementary affidavit that the applicant
seeks to explain its conduct on the basis that as the opposing
respondents did not then obtain an attorney, that this excuses the
applicant from complying with the Practice Directive. As stated
above, there was nothing that stopped the applicant from timeously
filing its heads of argument. Whether or not an attorney came
on
board for the opposing respondents does not change the fact that it
was for the applicant to file heads of argument and to ensure
as
dominus
litis
that its matter was ripe for hearing,
[8]
whether on 9 November 2020 or on 25 January 2021.
48.
The applicant’s attorney explains that she
closed her offices for two month from 11 November to 11 January
2021
for ‘
the December holidays’
.
This can hardly constitute adequate reason for not complying with the
practice directives. The applicant’s attorney continues
that
when she returned to work “
there were
issues with the CaseLines as same could not give us an option to
upload documentations
” and that it was
only through the assistance of my registrar that the applicant was
able to do so. Again, this is no explanation
at all. The heads of
argument that were uploaded are dated 18 January 2021 and
therefore were only prepared or at least finalised
and dated that
day. It is not an instance of the heads of argument having been
prepared in good time but the applicant’s
attorneys facing
technical difficulties in uploading the heads of argument and
practice to the electronic case system. As
described above, it
appears that the applicant’s legal representatives were only
spurred into action as a consequence of
the directives that I had
issued leading up to the hearing that pointed out that there had been
non-compliance with the practice
directives. But for my directives,
it is unclear whether the applicant intended filing any heads of
argument or practice note at
all and was anticipating confirmation of
the rule
nisi
, without
more, on the opposed roll on 25 January 2021.
49.
It is also noteworthy that no evidence was placed
before the court of any attempts by the applicant or its legal
representatives
to engage constructively with the opposing
respondents, whether for purposes of resolving the matter or for
advancing the litigation.
It was rather through the endeavours of my
registrar that communications took place with the unrepresented
respondents so as to
advance their participation in the hearing of
the application, both on 25 and 29 January 2021.
50.
The distinct impression that is created upon the
papers and by the submissions of the applicant’s counsel is
that once the
applicant had succeeded in obtaining its interim order
coupled to a rule
nisi
,
it was content to then prosecute the matter to finality at its
leisure and without taking the opposing respondents’ opposition
seriously.
51.
The opposing respondents on the other hand, being
unrepresented and by all accounts unable to afford legal
representation appear
to have done what they could to advance their
position.
52.
The opposing respondents have taken sufficient
interest in the proceedings to appear on each day the application was
in court. Their
case is also put forward in their answering
affidavit, although they are legally unrepresented.
53.
When the matter resumed before me on 29 January
2021, I indicated to the parties that having read the papers
including the
supplementary affidavit filed by the applicant, that I
was prepared to hear the matter provided that the parties were in a
position
to argue the matter. The applicant indicated that it wished
to proceed with the hearing of the matter rather than seek an
extension
of the rule nisi. The opposing respondents also
wished the matter to be brought to finality.
54.
Having heard the submissions by the applicant’s
counsel and on behalf of the opposing respondents (the first
respondent made
representations on 25 and 29 January 2021 and the
sixth respondent made representations on 29 January 2021, on behalf
of the opposing
respondents), in my view, the applicant’s
explanation for not ensuring that the matter was ripe for hearing is
unpersuasive
and, if anything, reflected an unrepentant approach on
its part.
55.
As already stated, the interim relief that the
applicant has obtained against the opposing respondents and the
amorphous group of
persons in the form of the eighth respondent is
far-reaching and places those persons at risk of being deprived of
their liberty.
Nevertheless the applicant municipality adopted a
cavalier approach to bringing the matter to finality.
56.
The
grant of a final interdict remains of a discretionary nature and a
failure to prosecute the matter to finality expeditiously
is to be
taken into account.
[9]
57.
The
applicant in seeking confirmation of the rule
nisi
would have to satisfy the usual requirements for a final interdict.
The opposing respondents filed a substantive answering affidavit,
to
which the applicant elected not to reply. As the applicant seeks
final relief on motion, the usual
Plascon-Evans
test applies in relation to any factual disputes that may arise,
where the opposing respondents’ version is effectively to
be
preferred over that of the applicant
[10]
unless the opposing respondents’ version can be rejected as
far-fetched and fanciful.
[11]
58.
The applicant relied heavily upon paragraph 10
of the first respondent’s answering affidavit:
“
Seeing
that the ward councillor is not responsive on the grievances of the
community,
the
community took it upon itself to halt operations of the contractors
as they believed that the recruitment process was procedurally
incorrect as many of these contractors are not from within and that
has great economical and social effect on theirs lives.
”
[12]
59.
The applicant’s counsel submitted that this
constitutes sufficient admission of the conduct complained of by the
applicant
in its founding affidavit to justify the confirmation of
the rule
nisi
against
the respondents. But there is no reference to any of the opposing
respondents or any particular person, only to “the
community”
generally.
60.
To the extent “the community’ is to
be equated with the faceless group cited by the applicant as the
eighth respondent,
no attempt had been made to effect service
of or publish the rule
nisi
on
‘the community’
.
61.
The only evidence in the applicant’s
founding affidavit identifying the opposing respondents as having
participated in the
conduct complained of are the following
paragraphs.
62.
The applicant’s deponent Davey Selven Frank
(“Frank”), described as the Divisional Head: Specialised
Legal, By-Law
Drafting and SCM Support of the applicant, states in
paragraph 16 that:
“
The first
to seventh respondents were identified by the applicant’s
contractors and its employees as people who often attend
to their
work stations and intimidate, provoke and threatens and seek the
employees to stop with the Tsakane War On Leaks 3
Project
”.
63.
The deponent, Frank, does not have personal
knowledge of these allegations and does not identify the applicant’s
contractors
and employees that it refers to in this paragraph who had
identified the respondents.
64.
Similarly, in relation to the bland assertion in
paragraph 33 of the founding affidavit that:
“
the
appointed contractor and the appointed sub-contractors advised the
Municipality that they are experiencing an ongoing interference
from
the first to seventh respondents.
”
65.
Frank as the deponent also cannot have first-hand
knowledge of his assertion in paragraph 41 of the founding
affidavit that:
“
The first
to seventh respondents threatens and insult and intimate the
employees of the appointed contractor and the sub-contractors
and
seek of them to stop the project until the entities have been
appointed.
”
66.
No source of knowledge at all is cited for this
factual assertion.
67.
The applicant filed two confirmatory affidavits
to its founding affidavit. The first is by the applicant’s
chief engineer
of projects in the water and sanitation department at
the applicant municipality, Thulani Mthembu. But he is not described
in the
founding affidavit as having personal knowledge of the
involvement of the respondents in the conduct complained of. In
fact,
he is not referred to at all in the founding affidavit.
68.
The second confirmatory is by Xolani Magadlela,
who is described as the Site Agent for Makhodo Project Management,
which is the
main contractor for the Tsakane War on Leaks Project.
This person is neither identified in the founding affidavit as the
source
of the factual assertions made by Frank nor referred to in the
founding affidavit.
69.
The first respondent on behalf of the opposing
respondents denies under oath any intimidatory conduct. For example,
the first respondent
states under oath in paragraph 18 of the
answering affidavit that:
“
The
applicants alleges that we disrupted, harassed and invaded site, we
strongly deny these allegations levelled against us as baseless
accusations aimed at silencing us from uncovering the rot with the
war on leaks project.
”
70.
The first respondent expressly stated under oath
in paragraph 11 of his answering affidavit that:
“
some of
the respondents cited in this application where never even part of
the community engagements and gatherings with the community
however
because of their political portfolios in the branch are cited as
respondents, we as leaders of the community we tried several
times to
engage with the site agent Mr. Xolani to have this matter resolved as
it had detrimental, economical and social effect
on parties involved
but Mr. Xolani did not want to engage with us
”.
71.
The applicant declined to respond to these
averments in a replying affidavit, including the averment that at
least some of the opposing
respondents were not part of the community
gatherings that appear to be the subject matter of the applicant’s
complaint.
At the very least, a response was expected from the
applicant on this issue. Nor does the applicant seek to obtain
a version
from Mr Xolani, although he is referred to by name in the
answering affidavit on several occasions and is available to the
applicant
as he had signed a confirmatory affidavit.
72.
The opposing respondents again in court, both on
25 and 29 January 2021 emphasised in their submissions that
at least
some of the opposing played no role in any of the events
complained of by the applicant. In a letter filed on behalf of the
opposing
respondents in the court file on 5 November 2020 motivating
for a postponement of the rule nisi as had been previously enrolled
on 9 November 2020, the opposing respondents record that those
who were present during the project stoppage were the first
respondent, second respondent and the fifth respondent as well as
various other persons who are not cited as respondents.
73.
As the applicant has failed to file a replying
affidavit, the court is to accept the version of the opposing
respondents and find
that the third, fourth and sixth respondents
have not been sufficiently proven to have been part of any of the
conduct complained
of and therefore no relief can be granted against
them.
74.
In relation to the remaining individually cited
respondents, there remains a factual dispute as to the extent of
their participation.
Although the evidence before the court
demonstrates at least some involvement of the first, second, and
fifth respondents in the
“
project
stoppage
” (which mainly emanates from
the letter filed on behalf of the opposing respondents and not from
any affidavit), this falls
short of resolving the factual dispute in
favour of the applicant of the alleged intimation, obstruction,
disruption, interference
and threatening, and of the performance of
any act of violence and of making or instigating threats as described
in the rule
nisi
that
the applicant seeks to confirm.
75.
As further difficulty presents itself for the
applicant in seeking final relief. The applicant is required to
demonstrate that there
is no other satisfactory remedy available to
it. Although the applicant stated in its founding affidavit that it
remained open
to meeting with the respondents and the community, it
has adduced no evidence that it has done so. It is also clear from
the opposing
respondents’ answering affidavit, and from their
submissions in court, that they wish to meet with the applicant’s
representatives to resolve the issue. It also appears from the
respondents’ conduct throughout the proceedings by attending
court on each occasion that they were readily available to engage
with the applicant. Whatever the position may have been before
the
grant of the interim order, there has been four months for the
applicant to engage constructively with the opposing respondents.
It
is common cause on the papers that the respondents are leaders within
the community and are ready to engage with the applicant.
Nothing is
said in the form of a replying affidavit or even in the supplementary
affidavit as to what attempts have been made by
the applicant to
engage with the respondents to reach an amicable resolution.
76.
The conduct of the applicant reinforces the
impression that once it obtained the interim order, and so to speak
was ‘armed’
with that interim order, it had no impetus to
engage with the respondents. The opposing respondents impressed upon
me in their
submissions that the applicant having obtained the
interim order went about “
brandishing
”
the order. Although I exercise caution in accepting what is stated by
the respondents which goes beyond that in the affidavits,
the
cavalier manner in which the applicant has gone about prosecuting its
interdictory proceedings to finality does credence to
the opposing
respondents’ concerns.
77.
During the course of argument, I invited the
applicant’s counsel’s attention to Uniform Rule 41A,
which imposes
an obligation upon parties to consider mediation as a
dispute resolution mechanism. Rule 41A(2)(a) provides that:
“
In every
new action or application proceeding, the plaintiff or applicant
shall, together with the summons or combined summons or
notice of
motion, serve on each defendant or respondent a notice indicating
whether such plaintiff or applicant agrees to or opposes
referral of
the dispute to mediation
.”
78.
The applicant’s counsel confirmed that no
notice had been given but submitted that there was no need to do so,
firstly because
there was no dispute and secondly that it would have
been a pointless endeavour to do so when the conduct that they sought
to interdict
was criminal. In my view, both these submissions are
misplaced. Firstly, it is clear that there is a dispute. Secondly,
the applicant
itself in its founding affidavit stated that it was
open to meeting with the opposing respondents in a peaceful manner.
Having
obtained the interim order, it had every opportunity to meet
with the opposing respondents who were bound by the interim
interdictory
relief from conducting themselves in an aggressive
manner.
79.
Whilst it might have been understandable why the
applicant did not serve the requisite notice under rule 41A before
seeking urgent
relief, there is no reason why such notice could not
have been given afterwards. The applicant is not an ordinary
litigant. It
is municipality that it is required in terms of section
152(1)(e) of the Constitution to encourage the involvement of
communities
and community organisations in the matters of local
government.
80.
In the circumstances, I am unable to find that
the applicant has no satisfactory remedy available to it other than
the confirmation
of the rule
nisi.
81.
It will be recalled that I enquired of the
applicant’s counsel whether the applicant was in a position to
proceed with the
matter and he indicated that the applicant was and
wished the matter to proceed. The applicant did not at any stage seek
leave
to file further affidavits in support of the relief. The
applicant had already been granted leave to supplement its founding
affidavit
in the interim order it had obtained on 22 September 2020.
It did not do so. The applicant has elected not to meet head-on the
averments made by the opposing respondents in their answering
affidavit. And the supplementary affidavit filed during the course
of
the hearing does little to advance the applicant’s position.
82.
The applicant has had every opportunity to
properly place its case before court why the rule
nisi
should be confirmed. This the applicant has failed to do, both
procedurally and substantively.
83.
In the circumstances, I decline to confirm the
rule nisi and the application is to be dismissed.
84.
As none of the opposing respondents were legally
represented, there will be no order as to costs.
85.
This judgment must not be seen as approval for
any unlawful conduct directed at the applicant, its employees or its
contractors
and sub-contractors. To the contrary, the opposing
respondents and the community must respect the rights of the
applicant municipality,
its employees, contractors and
sub contractors. Should they be dissatisfied with what has or is
taking place in relation to
the War of Leaks Project, they cannot
take the law into their own hands and must exercise such legal
remedies as are open to them.
Intimidation, acts of or threats of
violence, and other such conduct, will not be tolerated.
86.
Should the applicant municipality be faced with
unlawful activity, it remains open to it to pursue its legal remedies
including
to approach the court on properly motivated papers seeking
such relief as may be appropriate.
87.
Hopefully the applicant municipality will engage
with the community and the opposing respondents to resolve the
dispute between
them to the benefit of the community that the
applicant municipality serves.
88.
The following order is made:
88.1.
The application is dismissed and the rule
nisi
is discharged.
88.2.
There is no order for costs.
Gilbert AJ
Date of
hearing:
25 and 29 January 2021
Date of judgment:
5 February 2021
Counsel for the
Applicant:
Mr E Sithole
Instructed by:
Mphela Mngadi & Associates
(Kempton Park)
For the first to
seventh respondents: The first and sixth respondents in
person
[1]
Presumably
this is intended to refer to the ninth and tenth respondents.
[2]
I have
combined paragraphs 4 and 5 of the order to rectify the obvious
formatting error in the order.
[3]
Bearing
in mind that it would be necessary to prove that not only did the
relevant person have notice of the court order and that
he or she
had breached the order, but also that beyond a reasonable doubt the
relevant person had mala fide and wilfully breached
the order:
Fakie
NO v CCII Systems (Pty) Limited
[2006] ZASCA 52
;
2006 (4) SA 326
(SCA) at para 42.
[4]
See
the draft order that had been uploaded (filed) on 19 January 2021.
[5]
With list of authorities and a cross-referenced chronology table:
paragraphs 1 to 5, 16 and 17 of Chapter 9.8.2 of the Practice
Manual. See also paragraph 94 of the September Consolidated
Directive.
[6]
Case number 35962/2020, handed down on 29 January 2021.
[7]
The
only practice note was for the unopposed hearing before the urgent
court on 22 September 2020.
[8]
Paragraph
109 of the September Consolidated Directive.
[9]
Sandell and others v
Jacobs and another
1970 (4) SA 630
(SWA) at 635B-D;
Chopra
v Avalon Cinemas SA (Pty) Ltd and another
1974
(1) SA 469
(D) at 472C – F;
Razi
v Madaza
[2001] 1 All SA 498
(Tk) at 498.
[10]
Final relief can only be granted on motion if the facts as stated by
the first respondent, together with the admitted facts
in the
applicant’s affidavits, justify the granting of the relief:
Plascon-Evans Paints
Limited v Van Riebeeck Paints (Pty) Limited
[1984] ZASCA 51
;
1984
(3) SA 623
(A) at 634 E G, as reaffirmed in
National
Director of Public Prosecutions v Zuma
[2009] ZASCA 1
;
2009
(2) SA 277
(SCA) at 290 D-G. Effectively, any factual disputes ought
to be resolved by accepting the respondents’ version, save
where
such version is “
so
far-fetched or clearly untenable that the court is justified in
rejecting (it) merely on the papers”: Botha v Law Society,
Northern Provinces
2009
(1) SA 277
(SCA) at para 4, with reference to
Plascon-Evans
Paints
.
[11]
Once the respondents’ version is rejected as far-fetched and
fanciful, there would only be one version before the
court, namely
that of the applicant and therefore the
Plascon-Evans
approach would not come into play as there would no longer be
conflicting factual versions.
[12]
The
emphasis is mine.