About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2023
>>
[2023] ZAFSHC 276
|
|
Van Der Heever v Matjhabeng Local Municipality (4194/2022) [2023] ZAFSHC 276 (14 July 2023)
IN THE HIGH COURT
OF SOUTH AFRICA,
FREE STATE
DIVISION, BLOEMFONTEIN
Case
Number: 4194/2022
Reportable:
YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
In
the matter between:
JOHANNES
HERMANUS VAN DER HEEVER
Applicant
and
THE
MATJHABENG LOCAL MUNICIPALITY
Respondent
In
re:
Case
Number: 4194/2022
THE
MATJHABENG LOCAL
MUNICIPALITY
Applicant
And
JOHANNES
HERMANUS VAN DER HEEVER
Respondent
JUDGMENT
BY:
C REINDERS, J
HEARD
ON:
20 APRIL
2023
DELIVERED
ON:
14 JULY 2023
This judgment was handed
down in open court and on even date circulated to the parties’
representatives by electronic mail
communication.
[1]
The Matjabeng Local Municipality on 1 September 2022 issued an
application seeking
a declarator that an agreement ostensibly signed
on their behalf on or about 29 July 2021 (hereafter “the
agreement”),
be reviewed and set aside on the basis that it was
unlawful. According to the affidavit annexed to the Notice of Motion
it is averred
that the representative of the municipality was legally
not entitled to make the decision it did, as such a decision could
only
be made by the council of the municipality. For ease of
convenience the aforementioned application will be referred to as
“the
main application.”
[2]
The main application has not been adjudicated, nor am I required to
do so, save to
mention that it would appear to be a self-review on
the basis as set out in
Merafong
City v Anglo Gold Ashanti Ltd
.
[1]
[3]
Mr van der Heever opposes the main application. He has not yet filed
his opposing
papers therein. He seeks relief that the Municipality
(hereinafter the respondent) be directed to file the record of the
decision
that it intends to have reviewed and set aside within 15
days of the court order and that relief be granted to him to serve
his
answering affidavit in the main application within 30 days after
receipt of the record.
[4]
In the affidavit in support of the relief sought in the main
application, mention
is made that it is not brought in terms of
Uniform Court Rule 53 but rather an application in terms of Rule 6.
The applicant confirms
having no objection thereto as long as a “fair
opportunity” is granted to him to oppose the main application.
He complains
that the respondent has failed to provide “any
record which would allow the applicant to consider what exactly the
case is
that the respondent intends to make in the absence of vital
and relevant documentation…” It is noteworthy that
applicant
contends that it would be impossible for the court
ultimately to consider whether to review and set aside the agreement
in the
absence of such a record. It is averred that prior to the
agreement which is sought to be impugned, correspondence was
exchanged
between the various legal representatives and an affidavit
(under application number 2059/2022) is attached as examples of
documentation
considered by the applicant to be vital for
consideration in the main application, and which the applicant
contends should form
part of the relevant “record” to be
filed. The applicant in his affidavit suggests vital documentation
should at least
include the respondent’s debt collection and
credit control policies, the complete extract of the written and
signed delegation
of powers reserved for the municipal council and
delegated powers from the municipal council and the chief financial
officer, the
respondent’s write off policy (if it exists), the
respondent’s property rates policies, respondent’s
relevant
annual and/or mid-term reports to Provincial and/or National
Treasury in respect of revenue and instructions issued to its
erstwhile
attorney to settle rates arrears with other rate payers.
[5]
The respondent filed an opposing affidavit. It avers prayer 1 of the
Notice of Motion
to be ambiguous and vague in that the respondent is
uncertain what relief is sought. It avers that applicant seeks an
order which
boils down to discovery as is envisaged by Rule 35 (13).
It is ultimately stated that there is simply no record in existence
for
the reason that the council never considered the conclusion of
the agreement. There is therefore no relevant documentation in
existence
which was considered by council.
[6]
In the replying affidavit the applicant confirms that he does not
require the filing
of irrelevant documents but reiterates the
importance of the documents referred to in his founding papers as set
out in para [4]
herein above. He reiterates that in the absence of
all the relevant documentation the applicant would be restricted and
hampered
in its opposition.
[7]
I do not find much merit in this application. Many of the arguments
raised in the
affidavits by the applicant are aspects which stands to
be adjudicated in the main application. It does not avail the
applicant
to concern himself about how the court hearing the main
application would be able to do so in the absence of certain
documentation
– after all, in the event that such court finds
it difficult (as averred) that court might find that the applicant
has not
made out a proper case for the relief it seeks and, to the
advantage of the herein applicant, dismiss the main application. The
Notice of Motion requires the applicant to file the record of the
decision that it intends to have reviewed. It does not require
the
discovery of what applicant considers to be “relevant
documentation”. The discovery of documents in application
proceedings are regulated by Rule 35(13)
[2]
and is subject to the court directing so.
[3]
Discovery in terms of motion proceedings will be granted only in
exceptional circumstances but in any event as a general Rule,
only
after all the affidavits have been filed.
[4]
As
is evident from the Notice of Motion herein, this is not the relief
sought by the applicant and in any event, no opposing or
replying
papers have been filed yet in the main application. In terms of Rule
35 (12) documents referred to in affidavits may be
requested for
inspection and copied. However, that route has not been chosen by
applicant.
[8]
The respondent unequivocally states that it does not have a record of
the decisions
for the simple reason (according to respondent) that
the council never considered the alleged impugned document nor made
any decisions
in respect thereof – resulting therein that no
record exist. It would in my view be futile to attempt to order the
respondent
to file a record of proceedings which does not exist. The
existence of a record is in any event not a prerequisite to review
proceedings.
[5]
Where a party is
unable to produce a document, the court will not attempt to compel it
to do so.
[6]
[9]
This application is not an application to compel discovery, but even
if it was, I
would for the aforementioned reasons not have been able
to assist the applicant. It is not clear on what legal basis the
applicant
considers at this stage of the proceedings how he is
entitled to the relief he seeks. I was referred to Regulation 2 (3)
of the
Administrative Review Rules published in terms of Government
Notice No. 1284 of 4 October 2019 read with the Promotion of
Administrative
Justice Act (PAJA)
[7]
.
The respondent submitted the regulation not to be applicable to
self-review applications by Organs of State (like the Municipality
in
casu
)
and reliance was placed on
State
Information Technology Agency SOC Limited v Gijima Holdings (Pty)
Ltd
[8]
.
I agree with the respondent’s point of view.
[10]
It follows that the application cannot succeed. Costs should follow
the event. Although both parties
employed two counsel, I do not grant
the cost of two counsel herein.
[11]
Accordingly I make the following order:
1. The
application is dismissed with costs.
2.
Applicant is granted 20 (twenty) days from date of this order to file
his opposing affidavit (if any) in the
main application under case
number 4194/2022.
C.
REINDERS, J
On
behalf of the applicant:
Adv
M.C. Louw
Adv
J.S. Rautenbach
Instructed
by:
Neumann
van Rooyen Attorneys
c/o
Phatshoane Henney Inc.
BLOEMFONTEIN
On
behalf of the respondents:
Adv
L. le R. Pohl SC
Adv
P. du P. Greyling
Instructed
by:
Kemi
Akinbohun Attorneys
c/o
Tshangana & Associates Inc.
BLOEMFONTEIN
[1]
2017 (2) SA 211
(CC).
See
also:
Khumalo and Another v MEC for Education, KwaZulu Natal
2014 (5) SA 579
(cc)
[2]
Rule 35(13) reads: “
The
provisions of this rule relating to discovery shall mutatis mutandis
apply, insofar as the Court may direct, to applications.
”
[3]
See:
Afrisun
Mpumalanga (Pty) Ltd v Kunene N.O.
1999 (2) SA 599
at 611 G.
[4]
See:
STT
Sales (Pty) Ltd v Fourie
2010 (6) SA 272
(GSJ) at 276d-277e.
[5]
See:
Secretary
for the Interior v Scholtz
1971 (1) SA 633
(C) at 637 A-D.
[6]
See:
Moulded
Components and Roto Moulding SA (Pty) Ltd Coucourakis
1979 (2) SA 457
(W) at 461 D-E.
[7]
Regulation 2(3) of the Administrative Review Rules in terms of the
provisions of PAJA determines as follows:
"2(3)
Where an application has been brought in terms of Rule 6 of the High
Court Rules –
(a)
the applicant shall make any portion of the record of
proceedings with which it may previously have been furnished by the
administrative
available to every respondent who opposes the
application within 10 days of receipt of a notice of opposition from
such
respondent and the time allowed by Rule 6 of the
High Court Rules for a respondent to deliver an answering affidavit
shall be
reckoned from the date on which the record of proceedings
is provided to such respondent; and
(b)…”
[8]
2018 (2) SA 23
(CC).