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[2023] ZAECELLC 36
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Ndongeni v Buffalo City Metropolitan Municipality and Another (EL 805/23) [2023] ZAECELLC 36 (21 November 2023)
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Certain
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IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, EAST LONDON)
Date
Heard: 12 October 23
Date
Delivered: 21 November 23
CASE
NO: EL 805/23
In
the matter between:
VELISWA
NDONGENI
Applicant
And
BUFFALO
CITY METROPOLITAN MUNICIPALITY
First
Respondent
THE
MUNICIPAL MANAGER: MXOLISI YAWA
BUFFALO
CITY METROPOLITAN MUNICIPALITY
Second
Respondent
JUDGEMENT
MJAME
AJ
:
[1]
This matter served before me for purposes of
a determination of the issue of costs only.
FACTUAL
BACKGROUND
[2]
A rule nisi was granted in this matter
on the 09 May 2023 after the application was brought before
this
court as one of urgency.
[3]
In terms of the rule nisi, the
Respondent was called upon to show cause, on the 23 May 2023,
why
the granted order should not be made final:
“
3.1
That the Respondents are ordered and directed to reconnect the
electricity supply to the premises situated
at NO 1[…] N.U.14,
with electricity meter No .070[…]and account number 101 […]
forthwith.
3.2.
The Respondents are interdicted and restrained from terminating and
disconnecting the electricity
supply to the premises situated at No
1[…], NU 14, Mdantsane with electricity Nu 070[…] and
account number101[…],
without the requisite 14 day notice.
3.3.
The Respondent are interdicted and restrained from charging a
reconnection fee.
3.4
Costs to be costs in the cause.
3.5.
Paragraph 4.1, 4.2, 4.3 shall operate as mandamus and /or interim
order pending finalization of this
matter.”
[4]
The Respondents filed a notice to
oppose the application. They also filed an answering affidavit
disputing the facts in the Applicants founding affidavit. In a
nutshell the Respondents disputed the fact that the electricity
was
disconnected at the applicant’s premises. They also
contended that the Buffalo City Metropolitan Municipality adopted
a
Credit Control Policy in terms of section 96(b) of the Local
Government Systems Act, No .32 of 2000 which provides for the 80/20
payment structure for people who are in arrears and thus obviate the
need to switch off electricity.
[5]
On the return day the interim order
was extended. In between the process the Applicant and the
Respondents were communicating through emails, in which the
respondents were informing the applicant about the progress in the
matter.
[6]
The Respondents informed the Applicant’s attorney that the
electricity was not blocked, but there was
an electric fault in
wiring. Ultimately the electricity fault was resolved and the
electricity supply was restored at the Applicants
premises in June
2023.
[7]
The Applicant brought an application
before this court that the respondent must be found to be
in contempt
of the court order issued on the 9 May 2023. However, the Applicant
later abandoned this application.
APPLICANT’S
SUBMISSIONS
[8]
The Applicant’s representative
argued that the respondents must be found liable for the
costs
incurred in bringing the application. He further submitted that
the Respondents failed to comply with the court order
issued on 9 May
2023. Numerous notices had been served on the Respondents informing
them to comply with the court order dated 9
May 2023, he argued.
He further argued that the Respondents reconnected the electricity at
applicant’s premises after
a notice was issued notifying them
of the imminent contempt proceedings. Thereafter the contempt
application was instituted and
served. By the time the Respondents
complied, a directive had been issued and the Applicant had filed all
her papers in accordance
with the directive. It was argued that the
Applicant had in all respects succeeded with the purport of the
coercive contempt proceedings
and there is no reason why the
Respondents should not be ordered to pay costs.
RESPONDENTS’
SUBMISSIONS
[9]
The Respondents, on the other hand,
argued that the application by the applicant for costs must
be
dismissed. The Respondents were not contemptuous towards the court
order. It was submitted on behalf of the Respondents that
there is a
dispute of facts. The Respondents did not block or disconnect the
electricity at the applicant’s premises. It
was further
submitted that Respondents did not act with malice. The issue of
fault and reconnection of the electricity was dealt
with immediately
after it was brought to the Respondent’s attention. The
electricians were deployed to the site where it
transpired that there
was a fault with the electric wiring. It was further argued that the
Respondents never disregarded court
orders. The court orders issued
were not served according to the directives in terms of Rule 4 (1)
(a) (viii) of the Uniform Rules
of Court. It was further submitted
that the court must consider the
Plascon Evans Rule
in
deciding whether the Respondents are liable for costs.
THE
LAW
[10]
In awarding costs, a court has a discretion which
should be exercised judicially. A court should consider
the
circumstances of each case, weighing the issues in the case, the
conduct of the parties and any other circumstances which may
have a
bearing on the issue of costs and then make an order that would be
fair and just between the parties.
[11]
The purpose of an award of costs is to indemnify a
successful party who has incurred expenses in instituting
or
defending action. In
Mancisco
and Sons CC (in liquidation) v Stone
[1]
Flemming
DJP stated as follows:-
“
The award of
costs rests upon the object of reimbursing a person of costs to which
he was wrongly put.”
That underlies the basic
principle that a successful party should get the costs.
[12]
The principles applicable in the determination of
costs was dealt with by the Constitutional Court in
Ferreira
v Levin and others, Vryenhoek and others v Powell NO and Others
[2]
as
follows:-
“
The Supreme
Court has, over the years, developed a flexible approach to costs
which proceeds from two basic principles, the first
being that the
award of costs, unless expressly otherwise enacted, is in the
discretion of the presiding judicial officer, and
the second that the
successful party should, as a general rule, have his or her costs.
Even this second principle is subject to
the first. The second
principle is subject to the large number of exceptions where the
successful party is deprived of his or her
costs. Without attempting
either comprehensiveness or complete analytical accuracy, depriving
successful parties of their costs
can depend on the circumstances,
such as, for example, the conduct of parties, the conduct of their
legal representatives, whether
a party achieves technical success
only, the nature of the litigants and the
nature of the proceedings.”
[13]
I have considered the circumstances which led the
applicant to launch these applications and considered
the facts as
per founding and answering affidavits. I am of the view that the
Respondents were not at fault and are thus not liable
to pay
Applicant’s costs. In the circumstances it will be fair
and just that each party should pay its own costs.
ORDER
In
the result, I order as follows:-
Each party is to pay
its own costs.
P.C.N.MJAME
Acting
Judge of the High Court
Appearances:
For
the Applicant
Mr
L. Mati (Counsel)
instructed by
L.
Tyali Attorneys
No.
17 Gordon Road
Southernwood
EAST
LONDON
For
The Respondents
Mr
Mafu (Counsel)
instructed by
B.Bangani
Attorneys
15
Suffolk Road
Berea
EAST
LONDON
[1]
2001
(1) SA (WLD)
168 at
170 paragraph F
.
[2]
[1996]
ZACC 27
,
1996 (2) SA 621
at page
624 paragraph 3.