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[2022] ZAFSHC 235
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Caramellos Trust IT 730/2004 v Master Recyclers BFN (Pty) Ltd and Another (363/2022) [2022] ZAFSHC 235 (13 September 2022)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: 363/2022
Reportable:
YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
In
the matter between:
CARAMELLOS
TRUST IT
730/2004
Applicant
and
MASTER
RECYCLERS BFN (PTY) LTD
1
st
Respondent
MANGAUNG
METROPOLITAN MUNICIPALITY
2
nd
Respondent
HEARD
ON:
12
MAY 2022
CORAM:
MATHEBULA,
J
DELIVERED
ON:
The
judgment was handed down electronically by circulation to the
parties’ legal representatives
by email and release to SAFLII
on 13 SEPTEMBER 2022. The date and time for hand-down is deemed to be
13 SEPTEMBER 2022 at 09H30.
Introduction
and Parties
[1]
In the present proceedings the applicant ostensibly applies for a
relief to compel
the respondents to comply with the by-laws for waste
disposal and recycling. The applicant is the registered owner of a
property
known as 5 Mannion Road, Bloemfontein. The first respondent
is its neighbour who occupies an adjacent property at 5a Mannion
Road,
Bloemfontein from which premises it operates and does the waste
recovery and recycling business. The second respondent is the
municipality
established in terms of the Municipal Structures Act 117
of 1998 and other related legislations governing local authorities.
There
are no papers nor appearance made on behalf of the second
respondent.
Brief
litigation history
[2]
The applicant issued and served an application against the two (2)
respondents under
case number 1755/2021. The orders sought were
couched in the following terms: -
1.
Ordering the first respondent to conduct
his business in terms of the applicable laws and regulations for
waste disposal and recycling;
2.
Ordering the second respondent to apply
the above mentioned laws and regulations to the business of the first
respondent and ensure
compliance thereof;
3.
Prohibiting and interdicting the first
respondent from performing and/or conducting any of its business
activities outside its premises;
4.
Prohibiting and interdicting the first
respondent to cause:
(a)
a health risk to the public in general
and neighbouring properties/businesses;
(b)
a nuisance to the applicant’s
property and/or tenants of the said property by blocking access to
the applicant’s property
and prohibiting the applicant the full
use and enjoyment of its property
[3]
On 7 October 2021, Van Rhyn AJ (as she then was) granted an order per
agreement between
the parties which read as follows: -
Having
considered the notice of motion and the other documents filed of
record and having heard the Legal Practitioner for the applicant,
IT
IS ORDERED THAT:
1.
As between Applicant and First
Respondent:
1.1
By agreement between Applicant and First
Respondent, prayer 1 of the Notice of Motion is granted.
2.
As between Applicant and Second
Respondent:
2.1
Prayer 2 of the Notice of Motion is
granted.
3.
Each party to bear its own costs.
BY
ORDER OF THIS COURT
[4]
This, in part, explains the
absence of the second respondent in the proceedings before
me. The
applicant, in my view, seeks substantially the same order which it
sought under case number 1755/2021.
Applicant’s
submissions
[5]
The key challenge of the applicant is against the defence of
res
judicata
raised by the first respondent. The first attack is that
there is no substance in the defence as the order was granted by
agreement.
The cornerstone of this submission is that there is no
final decision whether the first respondent is conducting its
business in
a lawful manner. The alternative argument is that when
the order was granted, it was underpinned by fraudulent
misrepresentation
on the part of the respondents. The applicant was
led to believe that the first respondent was compliant with the
relevant by-laws
regarding waste recycling. The hard fact is that the
permit was only issued on 17 November 2021.
[6]
Counsel pointed out that the second respondent does not oppose the
relief sought.
He lamented the fact that there was no explanation
from the second respondent on what basis was the business of the
first respondent
allowed to be conducted before the permit was
issued. Pertinently he buttressed the point that there was silence as
to when did
the first respondent apply for the necessary permit.
Overall he submitted that the applicant has made out a proper case
for the
order sought with costs.
Respondent’s
submissions
[7]
The essence of the case for the first respondent is that the court on
7 October 2021
has already handed down a Court Order. The
aforementioned Court Order, it was argued, did not have a date on
which it will lapse.
It was not granted pending a certain relief or
the like.
[8]
On the question that the order was obtained on the back of a
fraudulent misrepresentation,
counsel argued that it was of no
concern to the matter before me. If it is, he drew attention to the
explanation contained in the
opposing affidavit filed under case
number 1755/2021 that it was not necessary to be issued with a
licence because the first respondent
is a waste collector not a waste
recycler. Furthermore, at that time the second respondent was no
longer issuing such licences.
Discussions
[9]
In general terms
res judicata
denotes a principle that a cause
of action may not be litigated more than once after a judgment on the
merits has been handed down.
A party relying on the defence of
res
judicata
must allege and prove all the elements underlying the
defence.
[10]
The apex court in
Ascendis Animal Health (Pty) Ltd v Merck Sharpe
Dohme Corporation and Others
explained the elements as follows: -
“
The
requirements of res judicata, although trite, can be summed up as
follows: (i) there must be a previous judgment by a competent
court
(ii) between the same parties (iii) based on the same cause of
action, and (iv) with respect to the same subject-matter,
or thing.
In a Lesotho case, Masara v Tsepong (Pty) Ltd [2015] LSLC 59 at para
14, the Court of Appeal stated that the defence
of res judicata
requires that a party must establish that the present case and the
previous case are based on the same set of facts
that have been
finalised by a competent court or tribunal by the same parties on the
merits of the same cause of action.”
[1]
[11]
It is primarily on this aspect that the two (2) parties part ways.
The fact of the matter is
that the first respondent is before this
court seeking the same orders that were granted on 7 October 2021. I
agree with counsel
for the first respondent that the issue whether
that order was granted as a result of fraudulent misrepresentation or
not is not
an issue before me. The order was final in effect and
could not be altered by the court that granted it.
[12]
It is not the case of the applicant that the order was ever set
aside, amended or abandoned.
It was granted not pending anything. It
means that it brought finality to the matter between parties. It was
also definitive of
the rights of the parties. Undoubtedly it disposed
the substantial portion of the relief claimed.
[2]
[13]
It will not make sense and also not be in accordance with our law
that I proceed to make an order
while there is a similar order in
place. Whether the first respondent is compliant or not is not a good
enough factor for this
court to override an order granted on 7
October 2021. The requirements that must be met for this defence to
stand are present in
the dispute between the parties.
[14]
For the aforegoing reasons, I conclude that the application has no
merits and it should not succeed.
The successful party is entitled to
the costs.
[15]
In the circumstances, I make the following order: -
15.1.
The application is dismissed with costs.
M.A.
MATHEBULA, J
On
behalf of the applicant:
Adv.
J. Lubbe SC
Instructed
by:
Van
Der Merwe & Sorour
BLOEMFONTEIN
On
behalf of the first respondent:
Adv.
S.J. Reinders
Instructed
by: Hendre
Conradie Incorporated
(Rossouws
Attorneys
BLOEMFONTEIN
On
behalf of the second respondent:
No
appearance.
[1]
2020 (1) SA 327
(CC) at para 71.
[2]
Zweni v Minister of Law and Order
1993 (1) SA 523
(AD).