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[2016] ZAECPEHC 29
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Afriforum (Non-Profit Company) and Others v Nelson Mandela Bay Metropolitan Municipality and Others (4556/2015) [2016] ZAECPEHC 29 (29 June 2016)
IN THE HIGH
COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION LOCAL, PORT ELIZABETH)
CASE
NO.: 4556/2015
In
the matter between:
AFRIFORUM
(NON-PROFIT COMPANY)
First Applicant
(Registration
No. 2005/042861/08)
RATEPAYERS
ASSOCIATION OF THE
Second Applicant
NELSON
MANDELA BAY MUNICIPALITY
JACOBUS
MARTHINUS GERBER
Third Applicant
And
NELSON MANDELA
BAY
First Respondent
METROPOLITAN
MUNICIPALITY
ACCESS FACILITIES AND
LEISURE
Second Respondent
MANAGEMENT COMPANY (PTY) LTD
(Registration
No. 2008/009760/07)
MPILO
SAKILE MBAMBISO
Third Respondent
TREVOR
HARPER
Fourth Respondent
NADIA
GERWEL
Fifth Respondent
JEZREEL
DU
PLESSIS
Sixth Respondent
NDIPHIWE
MANTYONTYA
Seventh Respondent
JUDGMENT
BESHE
J:
[1]
In December 2015, applicants launched an application wherein the
following relief was sought:
1. That the
decision to renew the Stadium Operations Agreement for a further
twelve months, from 1 July 2015 to 30 June 201, is
hereby reviewed
and set aside;
2. The First
Respondent is hereby ordered to appoint a reputable accounting firm
to conduct a forensic audit within 20 days hereof;
3. That the
accounting firm will be mandated to deliver a report pertaining to
the activities of the First Respondent from 1 January
2014 to present
date to this above Honourable Court within 30 days of appointment;
4. That the
Applicants be permitted to file further papers within 20 days of the
receipt such report;
5. That the
Applicants may return this matter to court once such report has been
received;
6. That the
Applicants be awarded the costs of this Application, such costs to
include the employment of two counsel.
KINDDLY
TAKE NOTICE FURTHER
that the
accompanying Affidavit of
JACOBUS
MARTHINUS GERBER
, together with
annexures thereto, will be used in support of this application and
will be supplemented in terms of Uniform Rule
of Court 53(4).
TAKE
NOTICE FURTHER
that the Respondents are
called upon, in terms of Uniform Rule of Court 53, to show cause why
the decision referred to in paragraph
1 should not be reviewed and
set aside.
TAKE
NOTICE FURTHER
that within ten (10)
days of receipt of the record from the Registrar, the Applicants may,
by delivery of a notice and accompanying
affidavit, amend, add to or
vary the terms of their Notice of Motion and supplement their
Founding Affidavit in terms of Rule 53(4)
of the Uniform Rules of
Court.
TAKE
NOTICE FURTHER
that the Applicants have
appointed Strömbeck Pieterse Attorneys of 7 Bird Street,
Central, Port Elizabeth as the address at
which it will accept notice
and service of all process in these proceedings.
TAKE
NOTICE FURTHER
that if any of the
Respondents intend opposing this application they are required:-
(a) within
fifteen (15) days after receipt of the Notice of Motion or any
amendment thereof, to deliver to the Applicants’
attorney a
Notice of Intention to Oppose and, in such notice, to appoint and
address within eight (8) kilometres of the office
of the Registrar at
which it will accept notice and service of all process in such
proceedings; and
(b) within
thirty (30) days after expiry of the time referred to in Rule 53(4),
to deliver any affidavits that they may desire in
answer to the
allegations made by the Applicants.
TAKE
NOTICE FURTHER
that if no such Notice
of Intention to Oppose is given, the application for the relief
sought will be made on 26
th
day of January 2016 at 09h30 or so soon thereafter as counsel for the
Applicants may be heard.
[2]
Essentially the same relief was sought in terms of an amendment of
notice of motion dated 14 March 2016. In the “amended
notice of
motion” the respondents were called upon to dispatch within
fifteen (15) days of receipt of the notice of motion,
the record of
proceedings sought to be reviewed.
[3]
However albeit on different dates, all the respondents had given
notice of their intention to oppose the application even before
the
filing of the amended notice of motion.
[4]
Second respondent raised certain objections relating to applicants’
notice of motion and the purported amendment thereof.
[5]
In the meantime, the first respondent who I presume has the requisite
record had not filed same with the Registrar. Neither
had it filed
its answering affidavit. The reason first respondent suggests for not
filing an answer is that it was “awaiting
the outcome of the
Rule 30 skirmish between the applicants and the second respondent in
respect of the record”. I assume
it was for the same reason
that the record was not delivered to the Registrar. In addition first
respondent contends that applicants
were attempting to invoke the
Rule 53(1)(b) of the
Uniform Rules of this Court
.
First respondent, it would seem aligned itself with second
respondent, or was also of the view that the applicants had not
complied
with
Rule
53(1)(b)
in calling
upon it to file the relevant record or the timeframes for amending a
notice of motion. Second respondent was apparently
of the view that
it has not been called upon to file the requisite record or the
correct procedure had not been followed in amending
the applicants’
notice of motion.
[6]
In the midst of all the exchange of correspondence between those
representing the applicants and second respondent regarding
compliance with
Rule
53
on the part of
the applicants, the applicants set the matter down in terms of
practice rule (EC) number 15 k.
[7]
Rule 15 (k) (i)
provides that:
“
k
(i) In all maters where a notice of opposition has been delivered but
no answering affidavit or notice in terms of rule 6(5)(d)(iii)
of the
Uniform Rules has been delivered within the period prescribed in
terms of the Uniform Rules, the applicant must apply for
the matter
to be set down on the unopposed roll, and the registrar must set the
matter on the unopposed roll under caption “UNCONTESTED
OPPOSED
MATTERS”. (Court Notice 1/2009 para 2)” T
he
matter was set down as unopposed.
Upon
receipt of the notice in terms of
Rule 15 k
, first
respondent’s attorneys pointed out to the applicants that the
application for set down of the application was premature.
Applicants’ attention was first drawn to the possibility of set
down being premature on 13 June 2016 and later on the 20
June 2016.
[8]
About the 14 June 2016 the applicants complained about first
respondent having disregarded the
Uniform
Rules of Court
by
failing to file the record of the decision by the 21 April 2016 and
reminded the first respondent of their entitlement to waive
their
right to the enforcement of
Rule
53 (1) (b)
.
[9]
Both first and second respondents are now asking that the matter be
postponed
sine die
,
now that the applicants have waived their right to provision of the
record. Not because they have been remiss in not filing their
answering affidavits but because they had thirty (30) days within
which to do so after applicants waived their right to the record
as
provided for in
Rule
53 (1) (b)
.
[10]
Rule 53
lays down the procedure to be adopted when it is
sought to review certain decisions or proceedings. The portion of the
rule that
is relevant for purposes of these proceedings are
sub
rules 4 and 5
which read thus:
“
(4)
The applicant may within ten days after the registrar has made the
record available to him, by delivery of a notice and accompanying
affidavit, amend, add or to vary the terms of his notice of motion
and supplement the supporting affidavit.
(5) Should
the presiding officer, chairman or officer, as the case may be, or
any party affected desire to oppose the granting of
the order prayed
in the notice of motion, he shall‒
(a) within
fifteen days after receipt by him of the notice of motion or any
amendment thereof deliver notice to the applicant that
he intends so
to oppose and shall in such notice appoint an address within eight
kilometres of the office of the registrar at which
he will accept
notice and service of all process in such proceedings; and
(b) within
thirty days after the expiry of the time referred to in subrule (4)
hereof, deliver any affidavits he may desire in answer
to the
allegations made by the applicant.”
[11]
The provision of the
sub
rules 4 and 5
are
in my view clear and unambiguous. Namely that after the receipt of
the record or waiver of right to the record as in this case,
the
party desiring to oppose the granting of the relief sought has thirty
(30) days to deliver their answering affidavit.
[12]
Both first and second respondents alerted the applicants to the
setting down of the application being premature. Despite this
applicant proceeded to set the matter down.
[13]
At the start of these proceedings
Mr
Crompton
for the
applicants intimated that he intended arguing for the granting of the
orders sought in the notice of motion but understood
that first and
second respondents have prepared substantive applications for
postponement and that their representatives should
perhaps address
the court first. He was however adamant that he was going to argue
for the granting of the orders sought by the
applicants in the notice
of motion. He however during his address after counsel for both
respondents had addressed me, submitted
that the matter was set down
for the court to give a direction as
Rule
53
was not clear
when it comes to circumstances akin to this matter.
[14]
Was there no better way of seeking such a direction than setting the
matter down for argument on the merits?
[15]
I am inclined to agree with
Mr Nepgen
for second respondent
that it was open to the applicants to amend their notice of motion
and set different terms or time table
for the parties to follow other
than the one prescribed in
Rule 53
.
[16]
I am satisfied in the circumstances that the matter was set down
prematurely, based on the very timeframes set by the applicants
in
both their notices of motion. In my view the respondents were
entitled to expect the periods set out in
Rule
53
to run their
course before they could file their answering affidavits. I am
satisfied that first and second respondents have shown
good cause why
the matter should be postponed to give them an opportunity to file
their answering affidavits having indicated from
the outset that they
intended opposing the granting of the relief sought.
[17]
Second respondent has sought punitive costs against the applicants.
[18]
It is indeed so that applicants forged ahead with the setting down of
the application despite being warned that such was premature.
Be that
as it may, and in view of the fact that
Rule
53
is essentially
designed to assist the applicant in a review application, I will
exercise my discretion by not ordering applicants
to pay punitive
costs.
[19]
The application for postponement is opposed. I have made a finding
supra
that the setting down of the application is premature. It stands to
reason that the application for postponement must succeed.
There is
no reason why the applicants (main application) should not be ordered
to pay the costs occasioned by the postponement.
[20]
In the result:
1.
The main application in this matter is postponed sine die.
2.
The first, second and third applicants are to pay the costs
occasioned by the postponement jointly and severally, the one paying
the other to be absolved.
_______________
N
G BESHE
JUDGE
OF THE HIGH COURT
APPEARANCES
For
the Applicant
:
Adv:
Crompton
Instructed
by
:
STR
ÖMBECK PIETERSE
INC
71 Bird
Street
Central
PORT
ELIZABETH
Ref.:
SWPP/kp/SW0610
Tel.: 041 –
585 0980
For
the 1
st
Respondent :
Adv: L Voultsos
Instructed
by
:
GRAY
MOODLIAR ATTORNEYS
19 Raleigh
Road
Central
PORT
ELIZABETH
Ref.: S
Roberts/N10864
Tel.: 041 –
586 3920
For
the 2
nd
Respondent :
Adv: JJ Nepgen
Instructed
by
:
PAGDENS
ATTORNEYS
18 Castle
Hill
Central
PORT
ELIZABETH
Ref: RH
Parker/rjs/ACC15/0111
Tel.: 041 –
502 7200
Date
Heard
:
28 June
2016
Date
Reserved
:
28 June
2016
Date
Delivered
:
29
June 2016