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[2016] ZAECPEHC 57
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Naidoo and Others v Nelson Mandela Bay Metropolitan and Others (3781/15) [2016] ZAECPEHC 57 (1 September 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE LOCAL DIVISION, PORT ELIZABETH
Case number: 3781/15
Date heard: 16/8/16
Date delivered: 1/9/16
Not
reportable
In
the matter between:
PERPANJAKAM
NAIDOO
First Applicant
PERPANJAKAM
NAIDOO NO
Second Applicant
SHASHI
NAIDOO NO
Third Applicant
PURSOTAM
NAIDOO NO
Fourth
Applicant
and
NELSON
MANDELA BAY METROPOLITAN
MUNICIPALITY
First Respondent
MUNICIPAL
MANAGER: NELSON MANDELA
BAY
METROPOLITAN MUNICIPALITY
Second Respondent
EXECUTIVE
MAYOR: NELSON MANDELA
BAY
METROPOLITAN MUNICIPALITY
Third
Respondent
Mr
T MOTASI
Fourth Respondent
JUDGMENT
Plasket,
J:
[1]
Part A of the relief sought in the applicants’ notice of motion
may well be described as novel. They seek an order directing
the
fourth respondent, Mr T Motasi, the Director: Legal Services in the
first respondent, the Nelson Mandela Bay Metropolitan Municipality
(the Metro), to deliver an affidavit in which he is to furnish
information specified in the notice of motion, as well as related
orders.
[2]
It would appear from the fairly terse founding affidavit that the
applicants and the second respondent, the Metro’s municipal
manager, had been involved in an unsuccessful attempt to resolve a
dispute between them. An application was then launched by the
applicants for an order compelling the Mero, through its municipal
manager, to provide the applicants with a copy of the minutes
of the
council meeting at which the municipal manager was mandated to
negotiate with the applicants, or the resolution terminating
that
mandate. The first, second and third respondents were cited as
respondents. Mr Motasi was not a respondent, only being cited
as such
in this application, which is ancillary to the earlier matter (and
bears the same case number).
[3]
On 1 December 2015, an order was made by Smith J directing the
respondents to furnish the documents sought by the applicants.
[4]
The sheriff attempted to serve the order on the municipal manager on
10, 11 and 12 February 2016, but without success. On each
occasion he
was told that the municipal manager was in a meeting and could not
accept service of the order. Another unsuccessful
attempt was made on
22 February 2016. On this occasion, however, the sheriff served the
order on Mr Motasi, having been informed
by him that the municipal
manager had instructed him to accept service on the municipal
manager’s behalf.
[5]
As the applicants do not know whether the order was delivered by Mr
Motasi to the municipal manager, they do not know if he
has knowledge
of the order for purposes of contempt of court proceedings. In this
application, therefore, they seek an order directing
Mr Motasi to
divulge what he did with the order served on him on behalf of the
municipal manager. In other words, the relief ought
now is a prelude
to the application for the municipal manager’s committal for
contempt of Smith J’s order.
[6]
I have two difficulties with the application. First, Mr Motasi was
not a party to the initial application. This application
is, as I
have said, ancillary to the first application and is intended to
provide for the enforcement of the order granted in it.
It is,
however, directed principally, initially at any rate, at Mr Motasi
but the notice of motion does not call on him to file
a notice of
opposition by a specified date and to file his answering papers, if
any, by another specified date. He has, in effect,
been joined as a
respondent by stealth and no notice of his procedural rights have
been given to him, as would have been the case
if the long-form
notice of motion had been used.
[7]
Secondly, the papers were served, in respect of all four respondents,
on Ms Ronel Naidoo who is described in the returns of
service as an
administrative assistant apparently employed by the Metro. She
accepted service on behalf of all of the respondents,
including Mr
Motasi. In a case such as this, in which Mr Motasi is personally
required to furnish information, that is not good
enough. In my view,
nothing short of personal service on Mr Motasi will suffice.
[8]
The matter is struck off the roll.
_______________________
C
Plasket
Judge
of the High Court
APPEARANCES
For
the applicants: JD Le Roux instructed by RJM Attorneys