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[2024] ZAFSHC 91
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Matjhabeng Local Municipality and Others v Ndayi N.O (5795/2023) [2024] ZAFSHC 91 (22 March 2024)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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SAFLII
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IN THE HIGH COURT
OF SOUTH AFRICA,
FREE STATE
DIVISION, BLOEMFONTEIN
Reportable: YES/NO
Of Interest to other
Judges: YES/NO
Circulate to
Magistrates:YES/NO
CaseNumber:
5795/2023
In
the matter between:
MATJHABENG
LOCAL MUNICIPALITY
FIRST
APPLICANT
ADV.
RONALD NGOQO N.O.
SECOND
APPLICANT
DAVID
KHALIPHA N.O.
THIRD
APPLICANT
and
JOSEPH
NDAYI N.O.
RESPONDENT
(PHF
KINDERTRUST – IT […])
CORAM
:
BUYS, AJ
DELIVERED
ON
:
22 MARCH 2024
[1]
This is the judgment in the application for leave to appeal by the
applicants to the Full Court
of the High Court of South Africa, Free
State Division, Bloemfontein, alternatively to the Supreme Court of
Appeal, against the
whole judgment and order handed down by Mthimunye
AJ on 10 November 2023. I will refer to the parties as they are
referred to in
the notice of application for leave to appeal referred
to
infra
.
[2]
Reasons for the judgment were handed down by Mthimunye AJ on 1
December 2023. The reasons followed
a request by the applicants (the
respondents in the application before Mthimunye AJ) for reasons in
terms of rule 49(1)(c) of the
Uniform Rules of Court (“the
Rules”) filed on 17 November 2023.
[3]
The notice of application for leave to appeal was filed on behalf of
the applicants on 12 December
2023.
[4]
The legal
representatives of the applicants and the respondent (the applicant
in the application before Mthimunye AJ) were directed
on 29 January
2024 to file written heads of argument on 2 and 9 February 2024
respectively. A further request was made to dispense
with oral
argument and to adjudicate the application for leave to appeal on the
papers and heads of argument filed by the parties.
[5]
The
applicants filed their heads of argument timeously and consented to
the application for leave to appeal to be adjudicated on
the papers.
The heads of argument on behalf of the respondent was filed out of
time, and only after enquiries were made if the
respondent intended
to file heads of argument, and further, whether the respondent
consented to the adjudication of the application
for leave to appeal
on the papers. The respondent filed heads of argument on 15 February
2024 and consented to the adjudication
of this application on papers.
[6]
The application for leave to appeal premised from an urgent
application launched by the respondent
against the applicants on 10
November 2023 in terms of which the following order was issued in
favour of the respondent:
“
1
The application is heard as one of urgency in accordance with Rule
6(12), the
requirements of the Rules of Court in respect of notice,
service and time periods being dispensed with and Applicant’s
departure
therefrom is condoned.
2.
The 1
st
Respondent, Matjhabeng Local Municipality, the 2
nd
Respondent, Advocate Ronald Ngoqo, and the 3
rd
Respondent,
Thanduxolo David Kalipha, are in contempt of paragraph 1.1 of this
Court’s order dated 31
st
October 2023 under Case No
5795/2023.
3.
The 2
nd
and 3
rd
Respondents are to be
imprisoned for a period of 30 days, suspended for 30 days on
condition that they comply with para 1.1 of
the order of Mhlambi J
granted on 31 October 2023.
5.
(sic) The 1
st
and 2
nd
and 3
rd
Respondents shall bear the costs of this application jointly and
severally, on the attorney and client scale.”
[7]
Paragraph 1.1 of Mhlambi J’s order issued on 31 October 2023
reads as follows:
“
1.1
The Respondents are directed to restore the Applicant’s utility
services referred to as
prepaid electricity at 1[...] N[...] Street,
Saaiplaas, Virginia, 9460, within 2 hours of service of this order;”
[8]
In his supporting affidavit in support of the application referred to
supra
, the respondent relies on the following allegations:
[8.1] He is a
farmer trading as PHF Kindertrust and he is duly authorise to depose
to the supporting affidavit as the
applicant in the application.
However, it should be mentioned, the respondent is cited (as the
applicant) in the heading of the
notice of motion and supporting
affidavit as “JOSEPH NDAYI N.O. (PHF KINDERTRUST IT […])”).
[8.2] The
respondent, as basis for the application, relies on the court order
issued by Mhlambi J (by agreement) on
31 October 2023.
[8.3] In
terms of the court order dated 31 October 2023, the applicants were
ordered to restore the respondent in peaceful
and undisturbed
possession of his utility services referred to as prepaid electricity
at 1[...] N[...] Street, Saaiplaas, Virginia
within 2 hours of
service of the court order and they were further directed to return
the respondent’s property seized by
the employees of the first
applicant on 24 October 2023 as per the inventory attached to the
application as annexure JN3.
[8.4] The
court order issued by Mhlambi J
supra
, including an invoice
for wasted costs were served electronically on the legal
representatives of the applicants before 15h00 on
31 October 2023.
[8.5] The
applicants refused to do what they undertook to do as per the court
order issued by Mhlambi J, and have not
complied with paragraphs 1.1,
1.2 and 2 of the said court order.
[8.6] In an
electronic mail from the applicants’ attorney of record, dated
1 November 2023, the applicants “changed
tack” and
indicated that “a statement” must be subjected to
taxation and requested an “itemized bill of
cost”.
Nothing was mentioned in the said electronic mail about complying
with the court order issued by Mhlambi J. It is
my understanding that
reference to “a statement” refers to the invoice for
wasted costs referred to
supra
.
[8.7]
According to the respondent, the non-compliance by the applicants of
the court order by Mhlambi J is wilful and
mala fide
.
[8.8] The
respondent sought an order directing the second and third applicants
to take the necessary steps to implement
the court order by Mhlambi
J, and, according to him, he had no alternative other than to hold
the said applicants’ personally
accountable for the first
applicant’s non-compliance of the said court order.
[8.9] It is
further the respondent’s case that the application is urgent,
based thereon that an application for
mandament van spolie
in
the main application is by its very nature urgent. The respondent
relies furthermore on the first applicant’s constitutionally
and statutory duty towards the respondent and his family, especially
his minor children being at school and them having health
conditions
that require the use of a nebuliser machine. Without utility services
the children are at risk of complications from
these health
conditions. The lack of electricity caused the respondent and his
family not to cook or bath and his children are
unable to study (at
the time, the exams were nearing). The respondent was furthermore
unaware where his properties were kept and
the condition thereof.
[8.10] According to
the respondent, he would be denied substantial redress if the
application was to be heard in due course,
and non-compliance by the
applicants with the court order by Mhlambi J would continue
unimpeded. The respondent further contended
that contempt proceedings
are inherently urgent, as it is intolerable to the rule of law in a
Constitutional dispensation that
court orders can be treated as
optional.
[9]
The applicants opposed the application and in support of their
opposition, relied on the following:
[9.1] A point
in limine
was raised challenging the respondent’s
locus
standi
. The applicants’ denies the respondent’s
authority to act on behalf of the PHF Kindertrust. The respondent
does not
mention that he is the only Trustee of PHF Kindertrust, and
it is furthermore highly unlikely that he is the only Trustee. After
a diligent search, no record could be found of PHF Kindertrust. It is
evident from the citation of the applicant in the heading
of the
notice of motion and the supporting affidavit that the respondent
intended to act in his capacity as representative of the
PHF
Kindertrust.
[9.2] The
applicants never removed the utility services referred to as pre-paid
electricity from the respondent’s
premises. The pre-paid
services were installed at the respondent’s premises.
However,
the pre-paid services were not activated due to the non-compliance by
the applicant as referred to in the opposing affidavit
in the main
application. The respondent failed to pay the agreed R37 000.00
before receiving the pre-paid services and further
failed to provided
an electricity certificate of compliance and to meet the conditions
relating to pre-paid. If the respondent
complied with the above, the
applicants would have activated the respondent’s electricity
supply. The applicants were never
directed to restore the electricity
supply to the deponent of the supporting affidavit. The respondent
lied to officials of the
applicants when they installed the pre-paid
meter, namely that the agreed amount of R37 000.00 was paid.
[9.3]
No property, as listed in the inventory, were removed by the
applicants.
[9.4]
The respondent is only entitled to costs in terms of a cost order
after taxation.
[9.5]
The respondents did not fail to comply with the court order by
Mhlambi J and is not in contempt of Court. According
to the
applicants, the first applicant bent backwards to comply with the
court order by Mhlambi J, namely to override its computer
system to
grant the applicant access to purchase electricity. This was done
despite that it is fraught with danger of a fire outbreak.
The
respondent, after having utilised the free electricity units in the
installed electricity meter installed on the property referred
to
supra
, has been making electricity coupon purchases since 1
November 2023.
[9.6]
The respondent last paid for any services on 27 January 2021 and is
in arrears for services rendered by the first
applicant in the total
amount of R138 178.43.
[10]
The following reasons were given by Mthimunye AJ for the order
granted on 10 November 2023:
[10.1]
The applicants have failed to restore the respondent’s utility
services as directed in the court order by Mhlambi
J on 31 October
2023. This conclusion premised from what has been established during
argument on 10 November 2023, namely that
the applicants have only
activated a switch to enable the respondent to purchase electricity
units, but the respondent was unable
to load the electricity units
purchased for the power to come on. Attempts were made to resolve the
issue, but for unknown reasons
it has not been resolved.
[10.2]
It has been directed that the second and third applicants be
imprisoned should they fail to comply with the court order
by Mhlambi
J, because
“
Contempt
by its very nature is punitive”
.
[10.3]
The cost order on an attorney and client scale in favour of the
respondent is reasoned along the lines of the court
exercising its
discretion guided by the principles where a litigant’s conduct
is so serious that it warrants a punitive scale
and to punish a
litigant where there has been conduct which is unreasonable and
objectionable, demonstrating a total disregard
of the court’s
process and its authority. Another objective considered to grant a
cost order on a punitive scale is to ensure
that the successful
litigant is not out of pocket in respect of expenses caused to him or
her by the losing party’s approach
to litigation.
[11]
The applicants rely on the following grounds in their application for
leave to appeal, namely, Mthimunye
AJ erred:
[11.1]
in allowing the application on the roll as an urgent application in
circumstances where the main application was placed
on the roll to be
properly ventilated on 23 November 2023, namely two weeks later;
[11.2]
in not ruling that the application be heard simultaneously with the
main application on 23 November 2023;
[11.3]
in finding that Joseph Ndayi had authority to act on behalf on behalf
of the PHF Kindertrust;
[11.4]
in not allowing the applicants to argue the
locus standi
point
taken
in limine
;
[11.5]
in not finding that the respondent did not have
locus standi
in the proceedings;
[11.6]
in not finding that the PHF Kindertrust was not properly before
court;
[11.7]
in allowing evidence that was not confined in the affidavits;
[11.8]
erred in ignoring the applicants’ version when deciding on
material dispute of facts;
[11.9]
by not applying the principles when hearing opposed motions;
[11.10]
by finding that the applicants acted wilful or
mala fide
;
[11.11]
in finding that the applicants were in contempt of court;
[11.12]
in granting a punitive cost order against the applicants.
[12]
In
terms of the provisions of
s
16(1)(a)(i) of the Superior Courts Act
[1]
an appeal against any decision of a Division as a court of first
instance lies, upon leave having been granted, if the court consisted
of a single judge, either to the Supreme Court of Appeal
supra
or to the full court of that Division, depending on the direction
issued in terms of s 17(6) the said Act.
[13]
The application for leave to appeal is made in terms of the
provisions of s 17(1)(a)(i) of the Superior Courts
Act in that the
appeal would have reasonable prospects of success.
[14]
In
S v
Mabena and Another
[2]
Nugent JA explained the manner in which a court should approach an
application for leave to appeal:
“
It is the right of
every litigant against whom an appealable order has been made to seek
leave to appeal against the order. Such
an application should not be
approached as if it is an impertinent challenge to the Judge
concerned to justify his or her decision.
A court from which leave to
appeal is sought is called upon merely to reflect dispassionately
upon its decision, after hearing
argument, and decide whether there
is a reasonable prospect that a higher court may disagree.”
[15]
An applicant was previously required to merely show that there is a
reasonable possibility that another court,
differently constituted,
would find differently to the court whose judgment leave to appeal is
sought. S 17(1) of the Superior
Courts Act provides now for a
somewhat different situation, namely an applicant in an application
for leave to appeal is required
to convince the court that there is a
reasonable prospect of success and not only merely a possibility of
success.
[3]
[16]
The
Supreme
Court of Appeal held in
Ramakatsa
and Others v African National Congress and Another
[4]
as
follows:
“
I
am mindful of the decisions at high court level debating whether the
use of the word ‘would’ as opposed to ‘could’
possibly means that the threshold for granting the appeal has been
raised. If a reasonable prospect of success is established,
leave to
appeal should be granted. Similarly, if there are some other
compelling reasons why the appeal should be heard, leave
to appeal
should be granted. The test of reasonable prospects of success
postulates a dispassionate decision based on the facts
and the law
that a court of appeal could reasonably arrive at a conclusion
different to that of the trial court. In other words,
the appellants
in this matter need to convince this Court on proper grounds that
they have prospects of success on appeal. Those
prospects of success
must not be remote, but there must exist a reasonable chance of
succeeding. A sound rational basis for the
conclusion that there are
prospects of success must be shown to exist.”
[5]
[17]
The application for leave to appeal is firstly based on the
submission made on behalf of the applicants that
Mthimunye AJ refused
to hear the two points in limine raised by the applicants, namely
urgency and
locus standi
.
[18]
In support of the submission that the application was not urgent, the
applicants rely on the submission made
that the respondent not only
set the application down for hearing 13 days before the main
application was set down for adjudication,
but also this application
was set down with very short notice to file opposing affidavits. It
is the applicants’ contention
that this application should have
been heard simultaneously with the main application.
[19]
The respondent’s
locus
standi
is challenged based thereon that the respondent is not a Trustee of
the PHF Kindertrust. According to the applicants, this aspect
was
properly ventilated by the applicants in the main application and the
respondent failed to address this issue. The applicants’
further submitted that it is trite that Trustees ought to be cited in
their capacities as Trustees, since a trust, in itself, cannot
be a
plaintiff, a defendant, an applicant or a respondent in legal
proceedings.
[6]
[20]
With reference of rule 6(1) of the Rules, it was submitted on behalf
of the applicants that the respondent
did not state the facts and
information he relies on regarding his
locus
standi
[7]
and he did not make the appropriate allegations to establish
locus
standi
in the supporting affidavit.
[8]
[21]
The application for leave to appeal is secondly based on the finding
of facts by Mthimunye AJ which was not
part of the evidence contained
in the affidavits filed in the contempt of court application.
Reference is specifically made to
paragraph 3.1 where the submissions
from the bar were accepted as evidence and the conclusions drawn that
the applicants have failed
to restore the respondent’s utility
services as directed in the court order by Mhlambi J.
[22]
It has been submitted further on behalf of the applicants that
Mthimunye AJ ignored the evidence presented
in the opposing
affidavit, namely that the first applicant “bent backwards to
comply with the Court order by overriding its
computer system to
grant the applicant an access to the purchase of electricity. This is
done despite that it is fraud with the
danger of a fire outbreak.”
The respondent “after having utilised the free electricity
units in the installed prepaid
meter installed on his property have
been making electricity coupon purchases since the 1
st
November 2023.” These allegations have not been dealt with by
the respondent, and Mthimunye AJ, regardless the applicants’
allegations, accepted the respondent’s “say-so
allegations” that it “still did not have electricity”.
It is therefore the applicants’ case that if the principles set
out in
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[9]
have been applied, the application should have been dismissed.
[23]
I am in agreement with the submissions made on behalf of the
applicants referred to
supra
. I am therefore satisfied that
the applicants have met the threshold as set out in s 17(1)(a)(i) of
the Superior Courts Act, namely
that the appeal would have a
reasonable prospect of success.
[24]
Accordingly I make the following order:
1.
Leave is granted to the first, second and third applicants to appeal
to the Full Court of
the High Court of South Africa, Free State
Division, Bloemfontein against the whole judgment and order handed
down by Mthimunye
AJ on 10 November 2023.
2.
Costs of the application for leave to appeal to be costs in the
appeal.
JJ
BUYS, AJ
On
behalf of the Applicants:
Adv.
P. Du P. Greyling
Kemi
Akinbohun Attorneys
Bloemfontein
On
behalf of the Respondent:
Mr.
C. Salley
Salley’s
Attorneys
Bloemfontein
[1]
10 of 2013.
[2]
2007(1) SACR 482 (SCA) para 22.
[3]
See
Mthethandaba
v The State
,
Case No. AR463/2007 (KZN) delivered on 21 January 2014 and reported
at
www.saflii.org/za/cases/ZAKZPHC/2014/4.rtf.
See also
Van
Heerden v Cronwright
1985 (2) SA 342
(T);
Botes
v Nedbank
Ltd
1983 (3) SA 27
(A) and
Normkow
Administrators
(Pty) Ltd v Fedsure Health Medical Scheme
2005 (1) SA 80 (W).
[4]
(
724/2019
)
[2021] ZASCA 31
(31
March
2021).
[5]
Para
10.
[6]
The
applicants referred to
Land
and Agricultural Development Bank of South Africa v Parker
2005
(2) SA 77
(SCA) and
Cuba
N.O. and others v Harlequin Global (Pty) Ltd and others
[2016]
4 All SA 7
GJ.
[7]
The
applicants referred to
Kommmissaris
van Binnelandse Inkomste v Van der Heever
1999 (3) SA 1051
(SC).
[8]
The
applicants referred to
Scott
v Hanekom
1980 (3) SA 1182 (C).
[9]
1984
(3) SA 523
(A).