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[2022] ZAFSHC 88
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Mafube Local Municipality v Minister of Water and Sanitation In re: Minster of Water and Sanitation v Mafube Local Municipality (4268/2016) [2022] ZAFSHC 88 (12 May 2022)
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
Case
number: 4268/2016
In
the matter between:
MAFUBE
LOCAL MUNICIPALITY
Applicant
and
MINISTER
OF WATER AND SANITATION
Respondent
In
re:
The
matter between:
MINISTER
OF WATER AND SANITATION
Plaintiff
and
MAFUBE
LOCAL MUNICIPALITY
Defendant
HEARD
ON:
21
APRIL 2022
DELIVERED
ON:
12 MAY 2022
JUDGEMENT
BY:
LOUBSER, J
[1] In September 2016 the
Plaintiff sued the Defendant for payment of an amount in excess of
R130 million for, inter alia, water
usage charges and water research
levies, plus interest. In the years that followed, the matter
became delayed by an application
for default judgment and an
exception that was noted by the Defendant, amongst others. Presently
there are three more applications
before me arising from the main
action. In order to avoid confusion, and for ease of reference, I
will refer to the parties by
name and not as they are cited in the
applications as Applicant or Respondent.
[2] The exception noted
by Mafube was eventually dismissed with costs by a Court of this
Division on 18 November 2021. Mafube thereafter
failed to file its
Plea to the Summons in the time allowed for such filing. This failure
caused the Minister to deliver a Notice
of Bar on Mafube on 18
January 2022. Yet again, Mafube failed to file its Plea within the
five days allowed for such filing, with
the result that Mafube became
ipso
facto
barred from doing so in terms of the
provisions of Rule 26 of the Uniform Rules of Court.
[3] Despite having been
barred from filing a Plea, Mafube went ahead and filed its Plea on 28
January 2022, which filing took place
3 days outside the period of
time allowed in the Notice of Bar. The Minister was quick to respond
by filing a Rule 30 application
on the same day to have the filing of
the Plea declared an irregular step. This Rule 30 application is one
of the applications
presently before me. The application was removed
from the roll, on 3
rd
March 2022 with costs to stand over.
[4]
Subsequently, Mafube filed an application in terms of Rule 27 for
extension of the period for filing its Plea to 28 January
2022, and
for uplifting the Notice of Bar served on 18 January 2022. This
application is also before me for adjudication. Having
regard to the
two applications mentioned so far, it is clear to the Court that the
only question underlying the present issues
and disputes is the
question whether Mafube has shown good cause for its delay in filing
its Plea within the period allowed. This
is so, because if it is
found that good cause was indeed shown, then the irregular step
application will fall away by itself.
[5] This, however, is not
the only disputes before this Court. There is also an application by
the Minister before me for leave
to file a supplementary affidavit
showing that the Minister had already served a Notice to declare an
Intergovernmental dispute
on Mafube during the course of 2016. In an
earlier affidavit in the proceedings such a Notice filed on the
Beaufort-West Municipality
was attached by the Minister. The
supplementary affidavit sought to be filed states that this Notice
was filed in error, and is
now substituted by the correct Notice.
This application to file the supplementary affidavit is opposed by
Mafube.
[6]
I consider it appropriate to consider this application to file a
supplementary affidavit first. To begin with, it is my impression
that this affidavit is relevant because it introduces some evidence
which could place Mafube’s defence on the merits of the
action
in some perspective. It shows beyond all reasonable doubt that there
was at least an effort by the Minister to comply with
his
Constitutional and Statutory obligations. I therefore intend to allow
the filing of the affidavit, and no order as to costs
shall be made.
[7] The next question is
whether the filing of the Plea by Mafube constituted an irregular
step as contemplated by Rule 30. It speaks
for itself that by the
time the Plea was filed, Mafube was already
ipso facto
barred
from doing so. On the face of it, an irregular step was taken by
Mafube in this respect, and normally a court would not
hesitate to
strike out the Plea so filed.
[8] As indicated
earlier, however, everything hinges on the question whether Mafube
has succeeded in showing good cause for an
extension of time and the
upliftment of the bar. Rule 27(1) expressly provides that a Court may
“on good cause shown”
make an order extending any time
prescribed by the Rules. Rule 27(2) makes provision for the
retrospective extension of time by
the Court, as is sought by Mafube
in this application. It has already become trite that an applicant
for extension of time must
provide a full and reasonable explanation
for his delay. The application must also be
bona
fide
,
and the applicant must satisfy the court that he has a
bona
fide
defence.
[1]
This means that the defence must prima facie carry some prospect of
success.
[9] As for the
requirement of a full and reasonable explanation for the delay, the
attorney for Mafube filed a founding affidavit
saying that he was out
of town attending a CCMA matter during the week in which the Plea had
to be filed. Before he left his office,
he placed the Plea, which was
already settled, on the case file on 21 January 2022 with a note that
same must be urgently served
and filed. He only suspects the file was
not attended to while he was away, and he further submits that the
delay of 3 days was
not excessive. As far as a
bona fide
defence is concerned, he submitted that Mafube has such a defence.
The claim is for some R 130 million and Mafube would be severely
prejudiced if the claim is granted in the present circumstances, he
says.
[10] In its Plea that was
filed out of time, Mafube pleads that the Minister failed to comply
with Section 41(1)(h)(vi) of the Constitution
and with
Section 5
and
40
of the
Intergovernmental Relations Framework Act 13 of 2005
before
the action was instituted. The effect of all the provisions contained
in the different sections, is that the Minister may
not institute
judicial proceedings unless the dispute has been declared an
intergovernmental dispute and all efforts to settle
the dispute were
unsuccessful.
[11] In the papers before
me, the Minister strongly denies that Mafube has succeeded in
providing a full and reasonable explanation
for each delay, and that
a
bona fide
defence has also not been shown. To a certain
extent, the views of the Minister in these respects must be
supported. For instance,
the attorney for Mafube does not say what
steps he had taken to ensure that the Plea would be filed in time
before he left, and
he also does not provide any detail concerning
the Minister’s alleged failure to comply with his
Constitutional and Statutory
duties. This is especially so because it
is now clear that a Notice declaring a dispute was indeed filed by
the Minister.
[12] Having said this, I
am also of the view that the mere 3 days delay in filing the Plea is
of a negligible nature. This is therefore
a matter which calls for a
flexible approach by the Court, because the main action itself did
not become delayed to any extent
that is worth mentioning. In my
view, all other considerations are overshadowed by this fact. After
all, the test for condonation
also includes the question of the
interests of justice and the importance of the issue to be
determined.
[2]
The application for extension of time and the upliftment of the bar
should therefore succeed. Since the Minister had good
reason to
oppose the application on the premise that Mafube had not shown good
cause that can be accepted as entirely sufficient,
I am of the view
that Mafube has to pay the costs of the application. The Minister was
also fully entitled to make application
in terms of
Rule 30
, and for
that reason the Minister is entitled to his costs in that application
as well.
[13]
The following orders are made:
1.
The application by the Minister to file a
supplementary affidavit, succeeds with no order as to costs.
2.
The application by Mafube for an extension
of time succeeds, and the period for the filing of the Plea is
extended to 28 January
2022 and the bar served by the Minister is
uplifted. Mafube is ordered to pay the Minister’s costs of
opposing the application.
3.
The application by the Minister in terms of
Rule 30
and
Rule 30A
is dismissed, and Mafube is ordered to pay the
costs of the application, including the costs of 3 March 2022.
_______________
P.
J LOUBSER, J
For
Mafube Local Municipality:
Adv. M. C. Louw
Instructed
by:
Peyper Attorneys
Bloemfontein
For
the Minister of Water and Sanitation:
Adv. H. J. van der Merwe
Instructed
by:
A.A. Solwandle Attorneys,
C/o Symington and De Kok
Bloemfontein
/roosthuizen
[1]
Dalhouzie
v Bruwer
1970 (4) SA 566
(C) at 574 F-H; Laerskool Generaal Hendrik
Schoeman v Bastian Financial Services (Pty) Ltd
2012 (2) SA 637
(CC)
at 640 H-I; Geldenhuys v National Director of Public Prosecutions
[2008] ZACC 21
;
2009 (2) SA 310
(CC) at 316B – 317C.
[2]
Ferris
v FirstRand Bank Ltd 2014(3) SA 39 (CC) at 43G – 44A