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[2023] ZAFSHC 333
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Mantsopa Local Municipality v Inzalo Enterprise Management Systems (Pty) Ltd (3832/2023) [2023] ZAFSHC 333 (23 August 2023)
IN THE HIGH COURT OF
SOUTH AFRICA
FREE STATE PROVINCIAL
DIVISION
Not Reportable
Case
no: 3832/2023
In
the matter between:
MANTSOPA
LOCAL MUNICIPALITY
Applicant
[1]
and
INZALO
ENTERPRISE MANAGEMENT SYSTEMS (PTY) LTD
Respondent
[2]
Coram:
Opperman, J
Heard:
21 August 2023
Delivered:
The order was handed down on 22 August 2023 at 08h00. The reasons
for the judgment were handed down electronically by circulation
to
the parties’ legal representatives
via
email and
released to SAFLII on 23 August 2023. The date and time of hand-down
is deemed to be 08h00 on 23 August 2023
Summary:
Urgent application – amendment of Notice in terms of
Uniform Rule 30(2)(b) and Uniform Rule 30A
JUDGMENT
[1]
This is an
opposed urgent interlocutory application
[3]
in terms whereof the Mantsopa Local Municipality seeks to amend its
rule 30/30A-Notice dated 15 August 2023.
[2]
There are
two cases/court files in this matter running parallel. It is case
number: 1582/2023
,
the
case on which the 5 May 2023-order (“the original order”)
[4]
was made. Then there is this application for declaring the
non-compliance of the original court order to be contempt of court
(the contempt of court application) under case number: 3832/2023. The
urgent interlocutory application, in terms of rule 6(11),
was brought
under case number 3832/2023. The interlocutory application was the
subject of the urgent application on 18 August 2023
and 21 August
2023.
[3]
An urgent contempt of court application was launched
in July 2023 but
was struck off the urgent court roll on 1 August 2023 for lack of
urgency.
[4]
Inzalo’s contempt of court application was hereafter
set down
on 4 August 2023 for hearing on 24 August 2023. The Municipality took
proper cognizance of the date of 24 August 2023
when the matter was
set down to be vented in a hearing of a formal opposed motion.
Strangely enough, was the file (case number
3832/2023) located on the
unopposed motion court roll on 18 August 2023 when it was drawn for
the urgent roll. I instructed that
the attorney for Inzalo be
informed of the situation. The files were immediately referred to the
Judge President for decision of
the placement thereof. From a
quick perusal of the file, it does not seem as if the Municipality
has filed their heads of
argument for the 24 August 2023-hearing or
timeously so. The matter might not be ready to be heard on the 24
th
of August 2023.
[5]
The background facts are that the Municipality curiously
so, served
the Notice in terms of rules 30/30A only on 15 August 2023. Two
complaints came to the fore; namely, (i) that Inzalo
enrolled the
contempt application without first amending its notice of motion
after the matter was struck from the urgent court
roll on 1 August
2023, and (ii) that Inzalo did not afford the Municipality the
ordinary court time periods to file an answering
affidavit in the
contempt application.
[6]
The Municipality demanded that Inzalo remove the complaints
within
the usual period of 10 days prescribed by rules 30 and 30A of the
Uniform Rules of Court, failing which the Municipality
threatened to
bring its exception. Strangely, the
dies
set in the Notice
expired on 25 August 2023, that is a day after the hearing of the
pending contempt application on 24 August 2023.
[7]
It is the case for the Municipality that on the evening
of 16 August
2023, its counsel became aware that the time periods in the Notice
were an oversight. The Municipality launched this
urgent application
on 17 August 2023 to amend the time periods in the Notice from 25
August 2023 to 22 August 2023; two days before
the hearing of the
contempt application. This does not make sense since the complaints
cannot effectively, practically, and procedurally
be removed before
the 24
th
of August 2023. The application seems to be still
born and moot; the prejudice to Inzalo grave and the effect on the
administration
of justice real.
[8]
The right of access to courts is essential in a constitutional
democracy under the rule of law and specifically so in terms of
section 34 of the Constitution of the Republic of South Africa,
1996:
“Everyone has the right to have any dispute that can be
resolved by the application of law decided in a fair public
hearing
before a court or, where appropriate, another independent and
impartial tribunal or forum.”
[9]
Condonation granted on the facts of this case in terms
of the Uniform
Rules of Court may break any limitation placed on this right.
[10]
The right of access to courts that is a fundamental right, is
eclipsed by the
right to justice that also entails,
inter alia
,
a fair trial. Section 34 of the Constitution refers to the
application of law decided in
a fair public hearing
.
[11]
This case is a reminder that the rules of courts may not be utilized
to play
litigatory games that delay justice and cause costs and
procedural misery. Litigation must be proper and timeous and may not
cause
trials or hearings to become chaos.
[12]
Courts may also not be held hostage by the reliance on section 34 of
the Constitution.
Litigation and access to courts are constitutional
rights that may not be trampled and ridiculed; it must be conducted
with the
utmost decorum and respect for the rule of law.
[13]
An interlocutory application, such as
in casu
, is an
urgent request made to court to compel compliance with procedure and
time periods; or otherwise, is to secure some
end and purpose
necessary and essential to the progress of a case. The application at
hand obstructs this vision. It causes a regression
of the litigation.
[14]
It is not
clear how the rule 30/30A-Notice only came to be served on 15 August
2023 whilst it was well known on 4 August 2023 that
the hearing was
on 24 August 2023. The oversight cannot be condoned and does not
cause urgency in terms of rule 6(12). Careless
litigation cannot be
cured by an urgent application especially if the prejudice to the
other party and administration of justice
is clear. The law is well
known. Harms
[5]
with reference to case law came to the following conclusions:
1.
In a case of urgency, the court or a
judge in chambers may dispense with the forms and service provided
for in the rules and may
hear the matter at such time and place and
in such a manner and according to such procedure as the circumstances
require.
2.
The rules must, however, be complied
with as far as is practicable, including the use of the long
form, but basic principles,
such as jurisdiction or legal
standing, cannot thereby be jettisoned.
3.
The applicant must apply for an order
condoning the non-compliance with the rules.
4.
There are degrees of urgency.
5.
Some matters may be so urgent as to
necessitate an immediate hearing, albeit at night or during a weekend
and may even be so urgent
that no time is available to prepare any
documents, in which case
viva
voce
evidence may be heard. Others
again, whilst they may be such that the time limits imposed by the
rules may be ignored, may not be
so urgent as to require a hearing
out of normal court hours.
6.
The applicant must set forth explicitly
the circumstances which render the matter urgent, firstly, and,
where necessary, require
that the matter be heard outside of a
court’s usual urgent procedures.
7.
The applicant must show an absence of
substantial redress if not heard in as a matter of urgency. This is
not the equivalent of
irreparable harm. Delay will not
automatically result in the matter not being considered urgent.
(
Molosi and Others v Phahlo Royal
Family and Others
[2022] 3 All
SA 160
(ECM))
8.
Once such a requirement is established,
other factors come into consideration. These factors include but are
not limited to whether
the respondents can adequately present their
cases in the time available between notice of the application to them
and the actual
hearing, other prejudice to the respondents and the
administration of justice, the strength of the case made by the
applicant and
any delay by the applicant in asserting its rights.
This last factor is often called, usually by Counsel acting for
respondents,
self-created urgency.
9.
Delay will not automatically result in
the matter not being considered urgent. This is particularly the
case where the applicant’s
rights are being continuously
infringed.
10.
Commercial interests may justify the
invocation of the rule. Application may also be made for a
rule
nisi
(with
or without interim effect) if, in the circumstances of the case,
notice cannot be given to all interested parties.
11.
If the matter is not urgent the
application for substantive relief is not affected. All that can
happen is that the court may refuse
to deal with the matter as one of
urgency – it cannot dismiss the application on that ground
because urgency is a matter
of form and not of substance.
12.
The more urgent the matter, the more
readily and more radically the provisions of the rule may be deviated
from and in case
of extreme urgency, the matter may even proceed
without service or notice to the registrar.
13.
Effective service, where appropriate, is
not a collegial courtesy, but a mandatory duty. An applicant
cannot create his own
urgency by simply waiting until the normal
rules can no longer be applied.
14.
Failure to justify the deviation from
the ordinary rules sought should not as a matter of course lead to
the dismissal of the application.
15.
Where allegations are made relating to
abuse of power by a Minister or other public officials, which may
impact upon the rule of
law and may have a detrimental impact upon
the public purse, the relevant relief sought should normally be
urgently considered.
The opposite is also true; the government or
public officials may not use the rules to warp the system.
16.
In
Gigaba
(born Mngoma) v Minister of Police and Others
[2021]
3 All SA 495
(GP) it was held that a requirement for establishing
urgency is an explanation for the applicant’s belief that
substantive
redress in due course is unattainable.
17.
Where there are allegations of basic
human rights being violated and where the alleged reasons for urgency
clearly no longer existed
at the time of the institution of the
application, urgency is not established.
[15]
The Municipality did not manage to overcome the hurdle of urgency. If
this
finding is wrong and the court must adjudicate the matter purely
on rule 6(11) then the application must still fail. The awkward
way
in which the Municipality litigates is of grave concern. As said, a
mistake cannot be cured to the prejudice of other parties
and the
administration of justice, specifically not on the facts of this
case.
[16]
The matter
was set down for hearing of the urgent application
[6]
in terms of rule 6(11)
[7]
before Chesiwe, J on 18 August 2023. On this day chaos apparently
broke out. This is how the events are described by counsel for
Inzalo
and how the application landed on the roll of the 21
st
of August 2023 at 9h00. The urgency of the matter went awry and the
obstruction of the hearing set down for 24 August 2023 became
gravely
affected. It stands undisputed.
7.
7.1
On 17 August 2023, at
13h58
in the afternoon, the Municipality served on the front desk of the
Respondent’s correspondent’s attorney in Bloemfontein
an
urgent application. The Municipality served on Honey Attorney’s
a signed but unissued copy of the urgent application to
be heard the
next day at
12pm
on
18 August 2023
(the first urgent application).
7.2
Later in the afternoon at
15h28
,
the Municipality served on Honey Attorney’s a second signed and
unissued set of papers for an urgent application to be heard
the next
day at
14h15
on
18 August 2023
(the second urgent application).
7.3
However, Inzalo did not know of the second
urgent application and only discovered the existence thereof the
following day at approximately
10am on 18 August 2023 when it placed
its answering affidavit to the first urgent application on the Court
file.
8.
As appears from the two sets of urgent
papers:
8.1
the Municipality did not
withdraw
the first urgent application despite serving two urgent applications
on the Respondent;
8.2
both sets of urgent papers served on Inzalo
were
unissued
and did not bear a
stamp
of this Court;
8.3
both notices of motion do not cater for
Inzalo’s
participation
in the urgent applications in that:
8.3.1
There are no time periods for the
Respondent
to oppose
these urgent court proceedings;
8.3.2
There are no time periods for the
Respondent
to file an answering
affidavit
in these proceedings;
8.3.3
There is no provision for the Respondent to
appoint
an
attorney of record;
8.3.4
There is no provision for the Respondent
to
be notified
of the matter.
8.4
There is
no
prayer
that the Registrar of this
Honourable Court set the matters down accordingly;
8.5
The Municipality’s attorney of record
describes itself
as the respondent’s attorney of record i.e., Inzalo’s
attorney of record;
8.6
Both urgent applications were set down for
hearing at specified times
without
being issued by this Court;
8.7
Both urgent applications were served on
Inzalo with
less than 24 hours’
notice
of the hearing thereof;
8.8
No attempt was made by the Municipality’s
representatives to
clarify
or
explain
the
status
of the two unissued urgent applications served on the Respondent set
down at different times.
9
Inzalo served its answering affidavit to
the first urgent application at 9h26 on Friday, 18 August 2023.
However, at approximately
10h00 Inzalo’s representatives
discovered that
only
the second urgent application was put in the
Court
file
despite the Municipality serving
two unissued
urgent applications on it.
10
The parties’ representatives duly
approached the judge
in chambers
to obtain direction as to the status of the matters (given that
Inzalo was served with two urgent applications to be heard at two
different times). During the discussions, Municipality’s
attorney of record informed the judge in chambers that the
Municipality’s
senior and junior counsel were
unavailable
and would
only be attending court at
3pm
, and
not
at
12pm
or at
14h15
as
stated in the notices of motion served on the Respondent.
11
Compounding the situation, the senior or
junior counsel referred to by the Municipality’s attorney of
record did
not
arrive to court; instead, the Municipality briefed another
third
junior counsel
on the day
to argue the matter i.e., on Friday 18 August 2023.
12
This Court duly postponed this matter on
Friday, 18 August 2023 for hearing on Monday, 21 August 2023 to be
argued on the second
urgent application. The court reserved the costs
of the first urgent application.
13
The Municipality knows Inzalo, and its
legal representatives are
based in
Johannesburg
and that it would have
less than 24 hours to obtain instructions, secure counsel, prepare
and commission an answering affidavit,
travel 5 hours to
Bloemfontein, and prepare oral argument. But for Inzalo’s
intervention, the Municipality’s urgent
application, whether by
design or otherwise, would have resulted in the Municipality
stealing
a march
from Inzalo and essentially
obtaining a court order
by stealth
.
14
However, the appalling conduct of the
Municipality does not end there. This is because this urgent
application was
entirely avoidable
,
including the
massive bill of costs
that the taxpayer will be saddled with. Instead of withdrawing the
Notice and issuing a new notice with the desired dates, which
would
have cost
a few hundred Rands
,
the Municipality has
wasted hundreds of
thousands of Rands
on a
doomed
urgent application
that is itself
riddle with incurable
defects and flaws
.
15
Ultimately the Municipality has
run
riot
over the practices, processes, and
Rules of this Court, and made
a mockery
not only of the rule of law, but also undermine the fundamental
tenant of our constitutional dispensation that guarantees the
Respondent will obtain a fair hearing in terms of section 34 of the
Constitution.
16
Moreover, section 164 of the Constitution
vests in the
judicial authority
in this Honourable Court. It must
protect
its practices and process, including the rules that govern litigation
in South Africa and the litigants that enter that arena.
This
Honourable Court simply cannot permit the Municipality, an organ of
state, to
thumb its nose
at obligations that bind other litigants and run riot in its court.
17
From what appears below, Inzalo’s
case is
unanswerable
:
the urgent application is procedurally and substantially defective.
It must be dismissed with costs on the punitive scale,
including
costs of two counsel.
[17]
The application was issued on 17 August 2023 at this court. It reads
as follows:
Be pleased to take note
that the Mantsopa Local Municipality (the applicant) intends to make
application on Friday 18 August 2023
at 14h15 for an order with the
following terms:
1.
That the
applicant's non-compliance with any requirements in the Uniform rules
of court that may apply to interlocutory applications
and rules of
practice be condoned and this interlocutory application be enrolled
and heard as an urgent application.
[8]
2.
That leave
be granted to the applicant and the notice in terms of Uniform rule
30(2)(b) be read with Uniform rule 30A be deemed
to be amended in the
manner represented by Annexure “A” to the founding
affidavit.
[9]
3.
That the applicant is authorized to
deliver the amended notice in
terms of Uniform rule 3(2)(b) read with Uniform rule 30A on the
respondent’s attorney per e-mail
without delay.
4.
That the applicant pays the cost of
this application on taxed party
and party basis if unopposed
5.
That the respondent pays the cost of
this application on the scale as
between attorney and client, alternatively party and party in the
event of the application being
opposed.
6.
Further and all alternative relief as
the court deems meet.
Annexure A
…
TAKE NOTICE
FURTHER that the applicant is afforded the opportunity to remove the
cause of complaint before or on Tuesday, 22 August
2023 at 14h00,
barring which the respondent will make application before the main
application is heard for an order with the following
provisions:
(a)
That condonation be granted for the respondent’s
failure to
comply with the requirements of rule 30 read with 30A pertaining to
the time for removal of the cause of complaint and,
insofar as
relevant the urgent application in terms of the provisions of rule 30
read with 30A.
(b)
That the notice of enrolment, alternatively the enrolment be set
aside, and the main application be struck, alternatively removed
from
the Court’s roll.
(c)
That the applicant pays the respondent’s
cost on the scale as
between attorney and client, alternatively party and party.
(d)
Further and/or alternative relief. (Accentuation
added)
[18]
All the factors above regarded,
the application itself included, the matter is not urgent,
and the
relief prayed for may not be granted if the conduct of the
Municipality and the facts of the case are regarded. It will
bring
the administration of justice into disrepute to do so.
[19]
Inzalo is the successful party here and the way in which the
Municipality litigated
demands from the court to show its displeasure
with a punitive costs order.
[20]
ORDER
1.
The urgent application is dismissed.
2.
The applicant (Municipality) to pay the costs
that includes the costs
of Friday, 18 August 2023 on an attorney and client scale.
M
OPPERMAN, J
APPEARANCES
For
the applicant
S
REINDERS
Matlho
Attorneys
BLOEMFONTEIN
For
the respondent
C
OPPERMAN
Di
Siena Attorneys
Sandton
c/o
Honey Attorneys
BLOEMFONTEIN
[1]
“The Municipality”.
[2]
“Inzalo”.
[3]
The urgency is reflected in the application of the Municipality, and
it is for the application of rule 6(11). The adjudication
of urgency
does not fall away because it is a rule 6(11)-application. This is
acknowledged in the application of the Municipality
wherein they
apply: “That the applicant’s non-compliance with any
requirements in the Uniform rules of Court that
may apply to
interlocutory applications and rules of practise be condoned and
this interlocutory application be enrolled as an
urgent
application.”
[4]
Inzalo in this application is the applicant in case number
1582/2023. On 5 May 2023, Mhlambi, J from this court, issued an
order against the Mantsopa Local Municipality, the applicant
in
casu
.
It is this order that Inzalo now claim that the Municipality does
not comply with and is in contempt of. The order reads as
follows:
Having
considered the documents filed of record and having heard the legal
practitioners,
IT IS ORDERED THAT:
1.
The Respondent shall cancel and re-advertise the tender for
the
supply of Hosting, supply, delivery, installation and commissioning
of MSCOA compliant Financial Management and Internal
control system
to the Municipality that complies with MFMA Circular 80, which
stipulates the requirements of the municipal financial
systems and
processes in support of the Municipal Standard Chars of Accounts
(MSCOA) and all subsequent MFMA MSCOA circulars
as promulgated,
under Bid Number: MLM-27/23/24 (“the Tender”)
including the specified statutory time periods;
2.
The Respondent is ordered to provide the applicant with the
proof of
information in respect of the Tender within 5 days of this court
order. Proof of the Respondent’s compliance
with MSCOA
obligations in terms of the Circulars issued by the National
Treasury in respect of the appointment and replacement
of the
Respondent’s financial management system and service provider
including but not limited to compliance with:
2.1
MFMA Circular no. 123
2.2
MFMA Circular no 80 and annexure B thereto.
3.
The Respondent shall pay the costs of this application on the
attorney and client scale including the cost of counsel.
[5]
Civil Procedure,
Civil
Procedure in the Superior Courts
,
Part B High Court, UNIFORM RULE 6 APPLICATIONS, Urgent Applications,
Updated: February 2023 - SI 76,
https://www.mylexisnexis.co.za/Index.aspx
on 22 August 2023.
[6]
Rule
6(12)
(a)
In urgent applications the court or a judge may
dispense with the
forms and service provided for in these rules and may dispose of
such matter at such time and place and in
such manner and in
accordance with such procedure (which shall as far as practicable be
in terms of these rules) as it deems
fit.
(b)
In every affidavit filed in support of any application
under
paragraph (a) of this sub-rule, the applicant must set forth
explicitly the circumstances which is averred render the matter
urgent and the reasons why the applicant claims that applicant could
not be afforded substantial redress at a hearing in due
course.
[Substituted by GNR.2133
of 3 June 2022.]
(c)
A person against whom an order was granted in
such person’s
absence in an urgent application may by notice set down the matter
for reconsideration of the order.
[Substituted by GNR.3 of
19 February 2016.]
[7]
Rule
6(11)
Notwithstanding the
aforegoing sub-rules, interlocutory and other applications
incidental to pending proceedings may be brought
on notice supported
by such affidavits as the case may require and set down at a time
assigned by the registrar or as directed
by a judge.
[Substituted by
GG
39715
of 19 February 2016 –
Regulation Gazette
10566,
Vol 608.]
[8]
Urgency and its concomitant legal consequences are acknowledged by
the Municipality.
[9]
The rule 6(11)-application.