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SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
Case no: 25039/2021
In the matter between:
PETER TANYA MILLU Applicant
And
CITY OF JOHANNESBURG METROPOLITAN First Respondent
MUNICIPALITY
CITY POWER SOC LTD Second Respondent
_________________________________________________________________
JUDGMENT
This judgment is delivered by upload to the digital data base of the Court and by
transmission email to the parties on 19 March 2024 at 10h00.
(1) REPORTABLE: yes
(2) OF INTEREST TO OTHER JUDGES: yes
______________ _________________________
DATE SIGNATURE
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Sutherand DJP:
[1] The applicant is a ratepayer and owner of a house within the area of jurisdiction
of the respondent, the City of Johannesburg, (the City). The application is for a
temporary interdict, and subsidiary relief, pending a final reconciliation of an
account for services rendered by the City to the applicant’s home. The
application before me is to strike out the City’s defence, including its answering
affidavit.
[2] The dispute is about whether or not the accounts of the City rendered to the
applicant for electricity supplied to the applicant ’s home are accurate.
Overshadowing that core dispute is an egregious tardiness on the part of the
City and its legal representatives, about which more shall be said hereafter.
[3] The main application was launched on 21 May 2021. This hearing takes place
on 4 March 2024, almost three years later.
[4] The City, having served a notice to oppose about two months late, eventually
filed an answering affidavit on the eve of an application brought to seek default
judgment set down on 6 January 2022 , a delay of approximately 8 months .
Naturally, this nick -of-time-act precipitated a postponement. No condonation
was sought, nor is it apparent any thought was given to that step.
[5] The applicant then brought an application to strike out the answering affidavit
for want of condonation, but then acquiesced in the delay and in September
2023 withdrew it for the pragmatic purpose of accelerating progress in the
litigation. A replying affidavit was thereafter filed by the applicant on 15
September. This was a few days late. This lateness was thereupon pounced
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upon by the City who insisted a condonation application be brought, a plainly
shameless demand given its own extraordinary delay in f iling its answering
affidavit. The applicant then incurred the costs of the cond onation application
to which no serious opposition could conceivably have been offered.
[6] The case should have then moved to a hearing. The practice of this Division
requires both parties to file heads of argument prior to seeking a set down date.
The applicant filed heads. The respondent did not.
[7] As a result, in accordance with the practice of the Division, the applicant sought
an order in the Special Interlocutory Court to compel the delivery of heads of
argument from the respondent. The relevant part of the order granted, in the
presence of the respondent’s legal representatives, on 2 October 2023 is thus:
‘(1) The respondents shall deliver their heads of argument, practice note,
chronology and list of authorities within 10 days from service of this order.
(2) Failing compliance with (1) the applicant shall be entitled to approach this
honourable court to have the respondent answering affidavit and/or defence
struck out.
(3) the respondents are granted leave to deliver a supplementary affidavit
within 5 days of service of his order.’
[8] This order was thereafter served on the City on 15 November 2023.
Compliance was due on 22 November 2023 . There was no compliance within
that period or at all up to the day of th is hearing, five months later . No
explanation is on record for non -compliance, still less an application for
condonation.
[9] As a result of this non -compliance, in line with the relief granted on 2 October
2023, an application was launched to strike out the defence of the City. When
that case came before the court, the respondent’s representatives opposed the
matter. Dippenaar J ordered thus:
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(1) ‘The application to strike out is postponed to the SIC on the roll of 4 March 2024.
(2) The respondent s shall deliver an answering aff idavit, if any, on or before 29
February 2024 the applicant shall deliver a replying affidavit on or before 29
February 2024.
(3) Both parties shall deliver heads of argument on or before 29 February 2024.’
[10] The applicant filed heads of argument timeously. The City filed no answering
affidavit. The city delivered brief heads of argument in respect of the striking out
application after the prescribed deadline.
[11] On Monday 4 March 2024, the matter then came before me. After the hearing
commenced, my attention was drawn to the fact that the respondent had, whilst
the case was being heard, uploaded a supplementary affidavit. No application
was made to me to do so, and no thought had been given to the need for leave
to do so nor the need for condonation in not adhering to the order of 2 October
2023 as cited above. Moreover, no heads of argument on the main case were
uploaded. From the bar, counsel for the City told me that he had settled heads
of argument in the main case on Friday 1 March , ie one court day before this
hearing into the striking out of the defence. Why this document was not
uploaded was not explained, still less why the question of condonation was not
contemplated.
The case advanced to strike out the defence
[12] The practice directives of the Gauteng Division of the High Court established a
Special Interlocutory Court (SIC).1 Its function is to provide swift relief to
overcome an adversary’s obstructiveness which improperly delays the orderly
progress of litigation.
1 Practice Directives by the Judge President have been issued from time to time since August 2019. Included in
the Directive is the procedure for the Special Interlocutory Court (SIC). The versions of these directives relevant
to this case are Directive 1 of 2021 and Directive 1 of 2024.
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[13] The relevant provisions relating to the SIC, in the Directive 1 of 2021, which
were applicable at the relevant time are:
‘CHAPTER 8: THE TRIALS INTERLOCUTORY COURT: ROLE AND FUNCTIONS,
APPLICABLE TO ALL CATEGORIES OF MATTERS2
33.[There is established a] Motion Court, the [Special] Interlocutory Court, dedicated
to interlocutory matters in Civil Trials to address issues of non -compliance with this
Directive, the practice manual of the Court and any Rule of Court,….
34….
35.In an application to strike out a non -compliant Defendant’s defence, such
application shall be set down on notice and filed before noon on a Thursday of a week,
one clear week before the week in which the matter is set down.
36.…...
37.…..
38.Any party who, having reason to be aggrieved by the other party’s neglect,
dilatoriness, failure or refusal to comply with any Rule of Court, provision of the Practice
Manual or provision of this Directive, must utilise the Special Interlocutory Court to
compel compliance from the delinquent party.
39.Furthermore, any breach by a Legal Practitioner to promote and advance the
efficacy of the Legal Process as stipulated in paragraph 60.1 of the Code of Conduct
for Legal Practitioners may be referred to the Legal Practice Council for investigation
into possible professional misconduct.3
39…..
40 Among the matters which this court will deal with will be:
40.1 the failure to deliver timeously any practice note or Heads of Argument
that are due,
40.2 a failure to comply with Rule 36,
40.3 a failure to sign a Rule 37 minute promptly,
40.4 a failure to comply timeously with any undertaking given in a Rule 37
conference,
40.5 a failure to secure an expert timeously for an interview with a patient,
40.6 a failure to secure a meeting of experts for the purpose of preparing
joint minutes,
40.7 non-compliance with any provision of this directive,
40.8 any other act of non -compliance in respect of an obligation that rests
upon a party which may imperil expeditious progress of a matter may be
the subject matter of an application to compel; the list is not limited.
41 In a proper case, punitive costs (including an Order disallowing legal practitioners’
from charging a fee to their clients) may be awarded where recalcitrance or obfuscation
is apparent and is the cause of inappropriately delaying the progress of any matter. ’
(Emphasis added)
2 Despite being initially referred as the ‘Trials’ Interlocutory court the provisions were extended to
cover all types of proceedings.
3 The Code of conduct for Legal Practitioners et al, R198 of 29 March 2019, GG 42337, as amended,
promulgated in terms of section 36(1) the Legal Practice Act 28 of 2014. In particular. See article 3
and 60.1 and 60.2.
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[14] That text of the Directive was amplified with effect from 26 February in a
revision, contained in Directive 1 of 2024, which reads thus:
‘27.10: An application in the SIC shall not be postponed or deferred because
it becomes opposed since that would have the effect of undermining the very
function of the SIC. Opposed matters shall therefore be disposed of within the
week in which they are set down. The opposing litigant may file such papers to
succinctly set out the basis of the opposition as the presiding Judge may permit.
27.11: To prevent unnecessary delays, additional costs, and a waste of court
resources caused by non -compliance with orders handed down in the SIC, a
party may seek an order in the SIC that provides for the ipso facto striking out
of the claim or defence in the event that the other party fails to comply with an
order granted by the SIC within a specified time, provided that-
27.11.1 The order has been served on the delinquent party, and
27.11.2 A rule of court provides that such non -compliance entitles an
aggrieved party to apply to strike out the claim or defence.’
(Emphasis added)
[15] The applicant relies on the order of 2 October 2023, cited above, to seek the
relief.
[16] It is necessary, first, to deal with the effect of an order of court and the failure
of a litigant to comply. Self–evidently, w hether or not there is a contempt
depends on the fact-specific circumstances. Not every non-compliance with an
order constitutes a contempt of that order. In this case, however, in my view,
the only reasonable inference to draw from the facts is that there has been an
egregious contempt of an order of this cour t. Moreover, a contempt which is
calculated not only to stimy the adversary by inordinate delay, but also
constitutes an abuse of the court process. Delay has characterised the City’s
conduct from the beginning of the litigation. In particular, the elapse of a period
of over 5 months in the face of an order court to file the heads of argument and
still not file the heads is especially egregious. Moreover, there is no explanation
and, in particular, no condonation application, nor, indeed, even the tender of a
condonation application in regard to the non-compliance with the order of court.
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[17] It is trite that s ince ancient times it has been recognised that court s enjoy an
inherent jurisdiction to protect the integrity of the court process. The sheer
arrogant indifference of the City and its dis honourable behaviour is manifest.
Organs of state are expected to behave honourably . Apparently, t he City
expects that it can at the same time disrespect the fundamentals of the litigation
system and continue with impunity to participate in th at litigation system to
protect its rights. Such behaviour cannot be tolerated precisely because it is
calculated to abuse the process of the court.
[18] The striking out relief is resisted by the respondent , relying on three main
contentions. These are dealt with in turn.
Argument No 1:
[19] It is argued that a strike out of the defence is inappropriate because the
opportunity existed for the applicant to set down the matter on the opposed
motion roll in the absence of the City’s heads of argument. The intellectual
premise for this contention is obscure. It ignores the fact of non-compliance with
an order of the court. This argument of the City , as do the other contentions
dealt with hereafter, wholly fails to grasp the gravity of the manifest defiance of
the court order. In this case the critical issue is not a mere failure to comply, it
is the pernicious expectation of impunity with which the City has defied the order
of court.
Argument No 2:
[20] Second, the contention is advanced that there is no Rule of Court which
explicitly sanctions a strike-out of a defence because of the failure to file heads.
For this submission, the revised text in paragraph 27.1.2 of the SIC procedure,
cited above, that became effective on 26 February 2024, is invoked. The
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argument overlooks the fact that the caveat was absent from the Directive
applicable during the material time that the application to strike out was being
processed; although in the se circumstances it is immaterial which version of
the SIC procedure applies. Also, the respondent’s contention ignores the fact
of the order of court having been defied.
[21] More importantly, the argument misconstrues the import of the provision s of
para 27.1 and 27.2 of the revised Directive. The text does not mean that a rule
of court specifically stating that a non -compliance with a requirement to file
heads of argument is a necessary precondition to a strike out of a defence.
Rather, it means that circumstances exist , as contemplated by the Rules of
Court, which would justify a striking out of a defence. Rule 30A (1) provides:
(1) Where a party fails to comply with these rules or with a request made or notice
given pursuant thereto, or with an order or direction made by a court or in a judicial
case management process referred to in rule 37A, any other party may notify the
defaulting party that he or she intends, after the lapse of 10 days from the date of
delivery of such notification, to apply for an order —
(a) that such rule, notice, request, order or direction be complied with; or
(b) that the claim or defence be struck out.
(emphasis added)
[22] The clear import of this Rule of Court is that it embraces the order of 2 October
2023, as cited above.
Argument no 3:
[23] The third argument engages with the nature of the remedy of striking out a
defence per se. Incontrovertibly, an order that a defence be struck out is a
discretionary remedy. As such, a court must exercise a judicial discretion and
may decline to exercise the power to strike out in an appropriate fact -specific
case.
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[24] This led to the invocation , on behalf of the City, of the decision by Wilson J in
Capitec Bank Ltd v Mangena [2023] ZAGPKHC 2 25 (16 March 2023 .) The
contention advanced is that this decision is authority for the proposition that a
striking out of a defence cannot be granted in application proceedings unless,
if, upon a scrutiny of the respondent’s answering affidavit, no defence exists.
This contention exaggerates and distorts what was really held in that case.
[25] In Capitec, the applicant bank had taken default judgment against Ms Mangena,
the respondent, a homeowner, who had defaulted on a mortgage bond, for the
outstanding balance due and payable . The order did not include making the
property executable. Ms Mangena then brought a rescission application
founded on the allegation that she had not received the summons. Ms Mangena
failed to file heads of argument in her rescission application. The Bank brought
an application to strike out Ms Mangena’s claim to a rescission, based on that
default. All of these machinations took place in the opposed motion court. The
applicant bank invoked para 9.8.2 (12) of the Practice Manual of the
Johannesburg High Court. Wilson J in Capitec held:
[2] The basis for the application was said to be section 9.8.2 (12) of this court’s
practice manual. That section of the practice manual authorises an application
to this court for an order compelling a party who has not timeously filed heads
of argument in an opposed motion to file their heads within a period of not less
than 5 days, failing which “the defaulting party’s claim or defence [will] be struck
out”. The provision appears to be inspired by similar sections of the Uniform
Rules of Court which entitle a party, in appropriate circumstances, to apply for
the striking out of a defence or the dismissal of a claim. For example, Rule 35
(7) of the Uniform Rules of Court provides that a party that is delinquent in
making discovery of documents may have their claim or defence struck out.’
[26] The sole question that the court in Capitec had to decide was whether or not
the failure to file heads of argument was an appropriate premise upon which to
strike out the applicant’s case for the rescission. There had not been a prior
order compelling Ms Mangena to file heads within a specified period and she
was axiomatically not in default of compliance with such a court order, still less
in contempt of an order of court. This is a material distinction from the present
case.
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[27] In Capitec, the Court’s ultimate decision was that the application of the bank to
dismiss the rescission application should fail and a further order was made
sending the rescission dispute to a hearing on its merits. In the course of
reaching this conclusion, two principled propositions were articulated.
[28] First, it was noted that in motion proceedings the affidavits constitute both
pleadings and evidence. This broad proposition is per se uncontroversial.
However, the question of status of the ‘evidence’ in the affidavits and
considerations of when regard could properly be had to the contents, at different
stages of the litigation, were not addressed in the judgment; plainly, argument
had not been addressed to the court on this aspect and it was therefore not
considered.
[29] The second proposition is that a court that grants a discretionary remedy must
do so upon a holistic appreciation of all that is before the court. On that premise
the court had regard to the defence set out in Ms Mangena’s affidavit and made
a qualitative assessment of the prospects of success.
[30] The critical passages in the Capitec judgment read thus:
‘[5] The strike -out and dismissal procedures are particularly well -suited to action
proceedings because no evidence of the claim has generally been led at the time they
are engaged. In striking out a claim or defence, a court does no more than bring an early
end to a trial action because of a party’s persistent failure to observe the rules. In doing
so, the court need not have regard to the merits of the action, or the strength of the claim
or defence to be struck out. Indeed, the court cannot do so, because it will not have seen
or heard the evidence necessary to sustain the claim or defence to be dismissed or
struck out.
[6] Motion proceedings are different. Every affidavit in motion proceedings contains
both a pleading and the evidence necessary to sustain it. When a court is asked to
dismiss a claim or strike out a defence for failure to file heads of argument promptly , it
does so once all the evidence thought necessary to sustain the claim or defence has
been placed before it. It seems to me that, in these circumstances, a court is not at liberty
simply to ignore the affidavits and to dismiss a claim or strike out a def ence merely
because one of the parties has failed to take an important procedural step. The court
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must go further, and satisfy itself that, on the evidence before it, the claim or defence
sought to be dismissed or struck out has no intrinsic merit.’
(Emphasis added)
[31] It is argued on behalf of the applicant that although it is truism that an affidavit is
composed of both pleadings and evidence, that statement requires an important
qualification: the evidence in the affidavit is not yet ‘received’ by a court qua
evidence until the matter is heard on the merits and therefore a court entertaining
an interlocutory application does not have any ‘evidence’ before it but rather,
what is in the affidavit is simply potential evidence, that at the main hearing, may
or may not be relied upon. Accordingly, this thesis means that a court hearing an
interlocutory application cannot legitimately have regard to the contents of the
affidavit for the purpose of an assessment of the merits of a defence. It is argued
that there is authority for this proposition.
[32] In Elher (Pty) Ltd v Silver 1947 (4) SA 173 (W), the court was engaged with an
application to strike out various parts of affidavits filed to resist an ejectment, on
the grounds that they were irrelevant and hearsay. The application to strike out
the passages was refused. At p 176 -177 the court held:
‘After all, what is the real nature of the objection? This is not an objection to a pleading,
it is an objection to evidence which is proposed to be tendered to the Court that hears
the application. How can a Court which is not hearing the application disallow evidence
which it is proposed to tender later on as irrelevant to the merits of the dispute? The
Court which ultimately decides the application may have quite a different view as
regards the relevancy of some of the passages when all the evidence is presented to
it and the matter has been fully argued.
A great waste of time, energy and expense is involved in the procedure which
Mr. Miller has followed. First of all, there must be a full-dress argument or, at any rate,
very considerable argument on the merits in order to enable the Court to decide
whether the passages objected to are or are not relevant. Then a decision as regards
the relevancy of various passages must be given. Then more evidence is to be filed
by the petitioner, and finally the merits must be argued again before that Court which
hears the application. I do not agree that Mr. Miller's client is entitled, at this stage, to
a decision on this issue. It is evident that what the petitioner is really seeking is legal
advice from the Court. The Court asked Mr. Miller why he himself could not advise his
client to ignore those allegations which he considered were irrelevant or based on
hearsay evidence, and he indicated that if his advice turned out to be erroneous his
client would be at a disadvantage. The petitioner w ishes to be told by this Court that
he need not deal with certain facts alleged, but this Court is not trying the merits of the
12
dispute and those facts may turn out to be important when all the evidence is before
the Court and full argument has been heard, or may be so regarded by the Court that
does ultimately hear the application. There is authority for this view. In the case
of Gilbert v Comic Opera Company (16 Ch. D. 594) the identical question arose and
BACON, V.C., said:
. . . Until the hearing I cannot tell whether the affidavits objected to are
really in reply or not. I have nothing to guide me at this stage of the
proceedings. If they are not strictly in reply the Court will not regard
them at the hearing, but that is a question which cannot now be
decided.'
The head-note of the case reads:
'Affidavits filed by a plaintiff in reply will not upon interlocutory motion be ordered to be
taken off the file upon an allegation by the defendant that they are not confined to
matters strictly in reply: though at the hearing, if it should turn out to be so, the Court
will not regard them or may give leave to the defendant to answer them.'
It is true that this was a decision on procedure under rules which differ from our rules,
but the ground for the refusal of the Court to entertain objections of this character
before the hearing is one of general principle. Furthermore, at this stage of th e
proceedings the contents of those affidavits are not tendered as evidence. The
evidence is merely being collected in the form of affidavits to be tendered later on to
the Court that hears the application. It follows from such cases as that of Kingswell v
Argus Co., Ltd. and Kingswell v Robinson (1913, W.L.D. 129) that the contents of such
documents as affidavits are not before the Court as evidence until the actual heari ng
of the case.
The affidavits objected to are not now before me as evidence in the application; they
are merely documents filed with the Registrar to be used later as evidence, when the
application is heard.
Two illustrations will show some of the inconvenience involved in the procedure now
attempted to be followed: Mr. Miller contends – inter alia - that certain evidence of
alleged duress does not amount to duress and he asks the Court to d ecide that as
there is no proper evidence of duress all the evidence directed to the proof of duress
should be struck out. The Court which is to decide this is not hearing the application,
but merely a preliminary objection to evidence, nevertheless it is asked to decide some
of the issues raised in the main application. Mr. Miller also contends that a certain
contract which is in issue between the parties is a contract in writing and that certain
evidence tendered in relation to that contract is inadmissible and should be struck out
because it seeks to vary the terms of the contract. Mr. Isaacs's reply is that the contract
is ambiguous, that it is partly in writing and partly oral, and that in any case the evidence
objected to does not contradict the writing but explains it. These are all issues that will
have to be decided by the Court that hears the application, but Mr. Miller claims the
right to have them decided in advance by the expedient of applying to strike out certain
evidence. Such a practice would produce grave difficulties and I am unable to sanction
it by ordering the deletion of any of the passages objected to, whet her on the ground
that they are irrelevant or that they are hearsay evidence.’
(Emphasis added)
[33] It is further argued that th is passage from Elher was approved in a footnote to
a passage in Helen Suzman Foundation v President RSA 2015 (2) SA 1 (CC)
at para [227] which reads:
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‘It is necessary to emphasise some obvious considerations at this stage. In an
application to strike out evidence on affidavit, neither the eventual veracity of the
evidence nor the prospects of success of the main application are at issue. This is a
trite proposition. The only question in a striking-out application is whether the evidence
is admissible. The truth of the evidence plays no role at this stage; it is only determined
at the end of the matter if the evidence is admitted.’
(Emphasis added)
[34] It does not seem to me that Elher’s case or the Suzman Foundation case
establish a basis for the main contention advanced on behalf of the applicant;
ie, that the contents of the evidence in affidavits may not be examined at the
interlocutory stage in an application for the striking out of the defence . The
gravamen in both decisions was the removal of evidential material , not the
striking out of a defence. There is authority , however, in the Helen Suzman
Foundation case that a court should not assess the prospects of success of a
defence at the interlocutory stage . In Capitec the court did so, presumably
because this point was not ventilated in that hearing and the attention of the
Judge as not drawn to it. However, on the facts it is a harmless oversight
because the authorities, as I read them , require a lower bar n ot a higher one ,
ie: is what is in the affidavit admissible? Even that requires a court to consider
the contents of the affidavit.
[35] The more significant proposition in Capitec is that a court enjoys wide scope for
the exercise of a judicial discretion. The formulation of Wilson J in para [5] of
the Capitec Judgment has been cited above. I would articulate what I
understand his dictum to be in more universal terms: a court shall never
exercise a discretion that is inconsistent with the interests of justice. The
veritable plethora of authority from the Constitutional C ourt judgments makes
that crystal clear. A holistic approach is therefore an axiomatic corollary.
[36] It was also argued that Gefen and Another v De Wet No 2022 (3) SA 465 (GJ),
a decision referenced in Capitec, which held that, in the context of the PIE Act,
a court must examine everything before ordering an eviction, is distinguishable
because the wider scope of the courts’ power in such a case is expressly
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provided for in section 4 (7) of the PIE Act. I agree that on those grounds the
Gefen case is distinguishable. However, I do not read the Capitec judgment as
relying on Gefen as authority for the general proposition of a holistic approach
to exercising a discretion; rather the Gefen decision is alluded to as an example
of the propriety of a wide scope, a factor which seems to be in keeping with
constitutional norms.
[37] Turning to the facts, the question can be asked whether the interests of justice
are served by granting or refusing the striking out of the defence as a sanction
for the defiance of a court order. In my view, the manifest answer is that the
interests of justice are served by the granting of the relief. I deal with the
relevant considerations.
37.1 The defiance of the court order is a serious affront to the process of court.
This proposition requires no elaboration.
37.2 The abuse of the process of court which this defiance causes i s
intolerable. The SIC procedure serves to protect the process of court and
litigants are on notice as to the accountability which the court shall exact
for failures and defiant conduct.
37.3 The nature of the relief sought in the main application is not final,
inasmuch it seeks merely to freeze the status quo whilst the two parties,
in accordance with the credit control regulations of the City , achieve
clarity on the sum properly due and payable by the applicant. Indeed, the
relief is entirely procedural in character, and the consequence of granting
the order sought shall not result in the City forfeiting a single cent of what
applicant might owe.
37.4 The inadequacy of the respondent’s engagement with the case advanced
by the applicant is evident; the critical jurisprudential issue being whether
the City has complied with its own regulations. The allegations of its failure
are not rebutted but are evaded in the answering affidavit. Shorn of the
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minutiae, the answering affidavit whinges that the reconciliations are now
correct and it is up to the applicant to point out an error, if one exists. No
account of the progress through the debt control regulations is offered in
the answering affidavit, an aspect belaboured in the applicant’s case.
[38] Accordingly, it is appropriate to strike out the defence as a sanction for defiance
of the court order , the interests of justice n ot being compromised and the
process of court requiring protection from abuse.
[39] Further, it is senseless to require the applicant to go through a ritualistic
application to set the matter down again to obtain the main order sought. It too
shall be granted at this stage and thereby arrest the unnecessary running up of
yet more costs.
The delinquency of the City in the conduct of this case
[40] The abusive manner in which the City has behaved causing undue delay, has
already been traversed. Who is responsible for this sustained pattern of utter
disdain for the process of Court? What are appropriate sanctions?
[41] To determine these questions, I instructed counsel for the City to file an affidavit
and argument to inform me why the pattern of delay for the contempt of the
court order of 2 October 2023 should not be attributed to the attorney of record
and counsel briefed in the matter. Moreover, if officials of the City were
responsible, rather than the legal representatives, I required that the officials be
identified. In this regard, I required to be addressed on why the City should not
be ordered to pay attorn ey and client costs and/or the attorney of record be
required to pay the attorney and client costs de bonis proprius, and further why
an interdict should not be issued that the legal representatives be forbidden to
16
recover fees for the work done on this case. I also alerted counsel for the City
to the recent decision in the Constitutional Court, Ex Parte Minister of Home
Affairs 2024 (2) SA 58 (CC). In that case, from para [90], the court deals with
the abuses experienced in the process and concludes in making a punitive
order similar to the order I directed counsel to address me on.
[42] I received a single response penned by the attorney of record, Mr Hugo Baloyi.
The affidavit is on behalf of the firm attorneys of record and their counsel. What
it contains is superficial. The contents are, is essence, no more than a generic
description of their duties to the client and a plea ad misericordiam that a costs
penalty against them would be unduly onerous because of the relative junior
standing in the legal profession.
[43] The affidavit does not say when they were instructed by Mr Ngwana, the City’s
legal advisor to settle an answering affidavit or to draft heads of argument .
When referring to the interaction with the officials of the City , from who
instructions on the facts could be obtained , he simply says the ‘client’ was
consulted and that otherwise their link to the city was the legal advisor Mr
Ngwana.
[44] What could these scraps mean? Was the only real contact with the City through
Mr Ngwana? Mr Ngwana is the deponent to the affidavits. I was referred to
other decided cases about disputes over charges and in those matters too, the
deponent on behalf of the City is Mr Ngwana.
[45] The practice of requiring a legal advisor to depose to the affidavits is both a
clue to the cause of the debacle and a manifestation of the City’s reckless
attitude. It should be self-evident that the City’s legal advisor has no personal
knowledge of the accounting. He cannot ever be more than a conduit. His
affidavit craftily states that he makes it based on the informat ion provided to
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him, deftly evading the typical formula that the deponent has access to and
control over the documents qua evidence. From whom the facts were truly
obtained is never said, and in this wholly unsatisfactory manner, the
anonymous officials who compose the accounts are shielded from
accountability. If Mr Ngwana is ever be cross-examined on his affidavits it
seems likely that emb arrassment would soon follow. It must be stated bluntly
that the affidavits in litigation should be from persons who administer the
accounts. The practice of a legal advisor being a deponent to facts of which he
has no personal knowledge must stop.
[46] Despite the paucity of actual information, it is nevertheless reasonably certain
that this case is yet another neat example of the attorney and counsel being
starved of substantive instructions from the officials who have the substantive
knowledge. It also explains the bland and evasive contents of the answering
affidavit: ie, a n in ability by Mr Ngwana to get real instructions . One may
speculate that Mr Ngwana, dutifully, is driven to instruct the attorney and
counsel to come up with wha t they can and so they busk along: ergo, the
product is an answering affidavit brimming with rhetoric, rather than meeting
the applicant’s case head on.
[47] Accordingly, in my view inaction by the legal representatives does not appear
to be the cause of the inordinate delay and defiance. However, the sycophantic
deference to such abuses by the City by the legal representatives is
intolerable. Whether or not an attorney , placed in such an invidious position ,
should soldier on to do what he can ethically do for a client or should, ethically,
withdraw as attorney of record is an aspect of professional practice which ought
to be on the minds of professional legal practitioners if they seek to preserve
decent reputations. In this case, a slavish commitment to the client’s interests
wholly outweighed the legal p ractitioner’s duty to the court and to the process
of court. The legal practitioners are in breach of their professional duties, as
expressly stipulated in the Code of conduct for Legal Practitioners, articles 60.1
and 60.1:
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‘[60.1] A legal practitioner shall not abuse or permit the abuse of process of
court….and shall act in a manner that shall promote and advance efficiency of
the legal process.
[60.2] A legal practitioner shall not deliberately protract the duration of a case
before a court or tribunal.
(Emphasis added)
[48] As for the officialdom of the City, the identity of the persons who should be held
accountable remains concealed. The practice of officials waging litigation with
ratepayers’ money can perhaps be arrested, if in future, litigants suing the City
for non -performance cite the officials , who are allegedly delinquent , in their
personal capacities and, in addition, as a matter of course, cite the City
Manager in his personal capacity as the official who bears ultimate
responsibility. The cavalier attitude of public officials merrily fighting a case with
the public’s money cannot be allowed to flourish.
[49] In the affidavit of the attorney of record the only official identified is the City’s
legal Advisor Mr Ngwana. In a prior judgment of this Court Mr Ngwana had
been warned of the risk of punitive costs being awarded for dereliction of duty.4
That risk has now materialised.
[50] I require, in respect of Mr Ngwana , to be told on affidavit why he should not
personally pay a portion of the costs awarded to the applicant . Such
representations must be uploaded by no later than 10 days after this judgment
is delivered, whereupon I shall amplify and amend the order as to liability for
costs, if appropriate to do so.
[51] The City must pay the applicant ‘s costs on the attorney and client scale . The
attorney of record for the City is interdicted from recovering a fee from the City.
4 Ulcombe Ltd v City of Johannesburg Case 18969/2022 (2023 02 01) per Strydom J.
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[52] This judgment must be brought to the attention of the Mayor, the City Manager,
the head of revenue collection and the chief legal advisor.
The Order
(1) The first and second respondents’ answering affidavit and defence to the
main application are struck out.
(2) The first respondent is ordered and directed reverse all estimated charges
on the account rendered by the first respondent under account number
206812316 (“the account”), in respect of electricity and charge the applicant
by means of actual readings taken from the electricity meters: 383639,
836804, 836804, (“the original meters” ), and 143 05995038, (“the old
meter”), from January 2018 to date in respect of the consumption of
electricity on the property being 41 Copley Avenue Elton Hill Extension 1,
(“the property”).
(3) For the purposes of paragraph 2. above, the term reverse may include any
general accepted accounting practice to be used to correct the account in a
manner which will correct the account to reflect the actual electricity
consumption at the property.
(4) In consequence of the aforesaid correction as contemplated in paragraphs
2 and above, the first respondent must reverse all the interest and penalty
charges rendered on the account in relation to the inaccurate estimated
charges for electricity as per the applicable tariff to coincide with the actual
electricity charges to be rendered. The first respondent must further reflect
all the payments made by the applicant on the account.
(5) The first respondent is directed, and has the onus, to prove its charges
rendered on the account and the first and second respondents must provide
the applicant with all the job cards evidencing the actual electricity meter
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readings taken by the first and second respondents for the original and old
meters from the date that the said meters were installed on the property to
the date that they were removed , and the applicable tariff charged for the
consumption of electricity which tariff must be provided in writing.
(6) The first respondent must provide the corrected account reflecting the
accurate electricity charges and the documents required as contemplated
in paragraphs 2 to 5 above, with 60 (sixty) days , (including weekends and
public holidays), from the date of this order being served on the
Respondents by delivering a copy thereof by email to k[…] or by hand at
Kaveer Guiness Incorporated, Ground Floor , Z[…] P[…], 3[…] O[…] K[…]
R[..], B[…].
(7) The first respondent is to provide the applicant with a written report
explaining each and every entry on the applicant’s account from January
2018 to date of this order with reference to the job cards and the applicable
tariff applied.
(8) The reports referred to in paragraph 7 above shall be delivered within
10(ten) days, (including weekends and public holidays ), of delivery of the
documents contemplated in paragraph 6 above.
(9) The first (under or through it) and second respondents are interdicted and
restrained from terminating the supply of basic municipal services to the
property, based on disputed amounts allegedly accruing during the period
up until the date of this order, and which dispute is captured in respect of
query number 8004795013.
(10) The above interdict does not affect the first and second respondents’ right
to terminate the municipal supply to the prop erty, in respect of amounts
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accruing from municipal consumption at the property after the date of this
order and falling outside the ambit of the above reference number.
(11) The above interdict shall remain operative pending the exhaustion of the
first respondent’s internal dispute resolution proceedings inclusive of
its/their appeal proceedings in respect of the reference number and should
these disputes still persist thereafter, the interdict shall remain operative
pending the finalisation of legal proceedings to be instituted within 20
(twenty) days after the exhaustion of the internal remedy procedures as
aforesaid.
(12) Should legal proceedings not instituted within the 20-day period referred
to in paragraph 11 above, the interdict shall lapse.
(13) The first and second resp ondents shall pay the costs of the application
on an attorney and client scale, which costs shall include the costs incurred
on 14 February 2024 when appearing before Dippenaar J.
(14) The attorney of record of the Respondents is interdicted from recovering
a fee for any work done in this case.
(15) Mr Ngwana, the legal advisor must make representations within 10 days
of the service of this order in which he offers reasons why he should not
personally be ordered to pay 10% of the costs incurred; a failure to timeously
deliver such representations shall result in a supplementary order being
made to that effect.
(16) This judgment must be brought to the attention of the Mayor, the City
Manager, the Head of revenue collection in the City and to the chief legal
advisor.
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_________________________________
Roland Sutherland
Deputy Judge President,
Gauteng Division, Johannesburg.
Heard: 4 March 2024
Judgment: 18 March 2024.
Appearances:
For the Applicant:
Adv J Peter SC
Instructed by Kaveer Guiness Incorporated.
For the First and Second Respondents:
Adv E Sithole
Instructed by Madhlopa and Thenga Incorporated.