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2022
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[2022] ZAFSHC 303
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Brandfort Forum and Others v Masilonyana Local Municipality and Others In re: Brandfort Forum and Others v Masilonyana Local Municipality and Others (4949/2021) [2022] ZAFSHC 303 (7 November 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
No.: 4949/2021
Reportable:
YES/NO
Of
interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
In
the matter between:
BRANDFORT
FORUM
1
st
Applicant
INA
BEUKES N.O.
2
nd
Applicant
FRANS
BESTER POSTHUMUS N.O.
3
rd
Applicant
JOHAN
ALBERTUS FOURIE
N.O.
4
th
Applicant
(The
second to fourth applicants are cited in their capacities
as
the trustees of the Masilonyana Brandfort Forum Trust:
IT001914/2021(T))
and
MASILONYANA
LOCAL MUNICIPALITY
1
st
Respondent
MAFUMA
CONSULTING PTY LTD
2
nd
Respondent
LUNGILE
MOKOTELI
3
rd
Respondent
MIKE
MANYIKE
4
th
Respondent
In
re:
Case
No.: 4949/2021
BRANDFORT
FORUM
1
st
Applicant
INA
BEUKES N.O.
2
nd
Applicant
FRANS
BESTER POSTHUMUS N.O.
3
rd
Applicant
JOHAN
ALBERTUS FOURIE
N.O.
4
th
Applicant
(The
second to fourth applicants are cited in their capacities
as
the trustees of the Masilonyana Brandfort Forum Trust:
IT001914/2021(T))
and
MASILONYANA
LOCAL MUNICIPALITY
1
st
Respondent
LEJWELEPUTSWA
DISTRICT MUNICIPALITY
2
nd
Respondent
MAFUMA
CONSULTING PTY
LTD
3
rd
Respondent
Coram:
Opperman,
J
Date
of hearing:
4
November
2022
Order
Delivered:
7
November 2022
Reasons
for Judgment:
7
November 2022. The reasons for judgment were handed down
electronically by circulation to the parties’ legal
representatives
by email and release to SAFLII on 7 November 2022.
The date and time for hand-down is deemed to be 7 November 2022 at
15h00.
Summary:
Leave to
Appeal – contempt of court
JUDGMENT
[1]
It is common cause that, on 5 November 2021,
the Court prohibited the respondents from continuing with a project
to install pre-paid
– electricity meters in Brandfort. The
order was and is unambiguous:
1.
The first, second and third respondents
are interdicted and restrained with immediate effect from installing
any pre-paid electricity
meters in the town and municipality of
Brandfort, Free State…
[2]
The order was blatantly ignored by, among
others, MAFUMA CONSULTING (PTY) LTD and MIKE MANYIKE and on 12 May
2022 the following
order was made:
[12]
ORDER
1.
The
second respondent:
Mafumu
Consulting (Pty) Ltd
1.1
The second
respondent is in contempt of the court order granted on
5
November 2021
under civil case cover number:
4949/2021
;
1.2
The second
respondent is found guilty of contempt of the court order granted on
5 November
2021
under
civil case cover number:
4949/2021
;
1.3
The second
respondent is sentenced to payment of a fine of
R50,000.00
(fifty thousand rand)
;
the sentence is wholly suspended for
36
(thirty-six) months
on condition that the second respondent complies with the court order
granted on
5
November 2021
under civil case cover number:
4949/2021
and is not again convicted of contempt of court committed during the
period of suspension;
1.4
The second
respondent is ordered to comply with the court order granted on
5
November 2021
under civil case cover number:
4949/2021
to, with immediate effect, desist from installing any pre-paid
electricity meters in the town and municipality of Brandfort,
Free
State Province pending an application for review
.
2.
The fourth
respondent:
Mr.
Mike
Manyike
2.1
The fourth
respondent is in contempt of the court order granted on
5
November 2021
under civil case cover number:
4949/2021
;
2.2
The fourth
respondent is found guilty of contempt of the court order granted on
5 November
2021
under
civil case cover number:
4949/2021
;
2.3
The fourth
respondent is sentenced to
6
(six) months
imprisonment or payment of a fine of
R50,000.00
(fifty thousand rand)
;
the sentence is wholly suspended for
36
(thirty-six) months
on condition that the fourth respondent complies with the court order
granted on
5
November 2021
under civil case cover number:
4949/2021
and is not again convicted of contempt of court committed during the
period of suspension;
2.4
The fourth
respondent is ordered to comply with the court order granted on
5
November 2021
under civil case cover number:
4949/2021
and to, with immediate effect, desist from installing any pre-paid
electricity meters in the town and municipality of
Brandfort, Free
State Province pending an application for review
.
3.
The second and fourth respondents are ordered to pay the costs of the
application
on an attorney and client scale, jointly and severally,
the one paying the other to be absolved.
[3]
The context of the milieu in which the orders
were made is crucial:
THE
FACTS
[23]
After hearing arguments for the applicants and the respondent and
having studied the affidavits and other
evidence on record I find
that the following facts were proven:
[1]
1.
There is not any prove of a resolution
that was taken by the first respondent’s council to install and
sell electricity by
means of pre-paid meters. The embarrassment to
the first respondent is that they could not attach the resolution to
the Court documents
and that previous court orders to make the
resolution available to the residents came to nothing.
2.
There is not any evidence that proper
community participation took place prior to the decision to use an
external service provider.
3.
There
is not any evidence that proper procurement by means of competitive
tender process was followed before the third respondent
was
appointed. The contract that was supplied to the Court shows that it
is not properly signed and it is a copy.
[2]
It has no evidentiary value at all as it is. The appointment of the
third respondent seems to be unlawful on the evidence before
court.
4.
The manner in which tariffs for the
supply and sale of pre-paid electricity has been established and
fixed has not been placed before
the Court and evidence by the
applicants shows that it might be illegal. The tariffs are purported,
by prove of current sale thereof
and the receipts submitted by the
applicants, to be elevated illegally.
5.
There is no evidence before the Court
that the third respondent is duly registered with NERSA to trade in
electricity or is exempted
thereof.
6.
The community, by mouth of the
applicants, were told that the use of the pre-paid meters will be
voluntarily; the first respondent
maintains that the use is
compulsory and this exasperates the situation of fair administrative
action towards the residents of
Brandfort.
7.
There is not any evidence before the
Court as to what the percentages are that the service providers will
gain with the installation
of the pre-paid meters and the payment for
electricity by the citizens. Transparency in this regard is
imperative to prove that
the town and its citizens will profit
positively from the decision. A proper and relevant budget has
not been forthcoming.
The monies must be allocated to pay the ESCOM
debt and improve service delivery and not line the pockets of service
providers unfairly.
8.
No effective information has been
supplied regarding when the first respondent would have adopted
applicable bylaws. No bylaws were
adopted by the first respondent to
the applicants’ and the Court’s knowledge that permitted
the conduct that led to
the authorization of the pre-paid electricity
meters. If the bylaws were promulgated it was done without the
applicants being aware
thereof. The alternative legislation relied
upon by the first respondent was not complied with.
CONCLUSION
[24]
The potential for and
probability of unlawful conduct
in
casu
is
real.
[25]
To allow unlawful conduct to persist is
irreparable harm perpetrated against the Constitution of the Republic
of South Africa, 1996.
To allow for unsuspecting tax payers to be
victims of unlawful conduct for any period is irreparable harm. The
resident does not
have a choice but to pay for the electricity
through the already installed; and meters to be installed. If the
tariffs are illegal,
it is irreparable harm.
[26]
The respondents have shown with their
conduct in this litigation and case 4903/2021, that there is no other
remedy that will stop
them to revisit their conduct than an
interdict.
[27]
It is apposite to warn that the public
servants that are involved here might be held personally accountable
for their conduct and
the costs of the litigation. The tax-payer may
not be expected to foot the bill for a case that could have been
resolved before
it went into litigation; as said above, it would have
been a simple matter of putting the evidence on the table. If any
party was
mistaken in its actions the situation could have been
remedied by mature counsel, conduct and mediation. One would hope
that sanity
will prevail and therefor the costs will be ordered to be
in the cause.
ORDER
[28]
The following order
is made in the interim:
1.
That the
first, second and third respondents are interdicted and restrained
with immediate effect from installing any pre-paid electricity
meters
in the town and municipality of Brandfort, Free State Province
pending an application for review by the applicants of the
first
and/or second respondent’s decision to install pre-paid
electricity meters and/or to determine the tariffs/charges
for the
distribution and sale of electricity on pre-paid basis and/or to
appoint the third respondent as service provider to install
pre-paid
electricity meters on the basis of the principles of legality,
alternatively fair administrative action basis, alternatively
both
the sources of review; alternatively, pending an application for a
declaration that the first and/or second respondents’
conduct
is unconstitutional and to be set aside.
2.
The applicants
must institute the intended application(s) in paragraph 1 above
within fifteen (15) court days from the date of this
order. The
calculation of the fifteen (15) days period to exclude the day on
which this order is granted; being 5 November 2021.
3.
The interdict
will lapse if the intended application(s) referred to in paragraph 1
above is not instituted within fifteen (15) court
days from the date
of this order and will be operative until judgment has been handed
down in the application(s). The calculation
of the fifteen (15) days
period to exclude the day on which this order is granted; being 5
November 2021.
4.
The costs of
this application are reserved for consideration in the intended
application for review/application for declaratory
relief.
[4]
Further to the above:
[6]
On 12 May 2022 I ordered, in their absence and by default, that the
first (Masilonyana Local Municipality)
and third (Lungile Mokoteli)
respondents are in contempt of court and convicted them accordingly
and a suspended sentence followed.
This order was subsequently
rescinded by agreement between the parties and set aside on 30 June
2022 by Van Rhyn, J. The case of
Mafumu Consulting (Pty) Ltd and Mr.
Mike Manyike was postponed to 9 June 2022 to hear argument from
counsel on their behalf.
[7]
On his own admission Mr. Manyike states that he has gone on and
installed over 80 pre-paid electricity
meters after the court orders
and explicit warnings by the court because the residents of the town
of Brandfort requested him to
do so. The citizens of Brandfort
cannot overrule a court order. Mr. Manyike, as continually assisted
by his legal representatives,
realised that he may not install any
pre-paid meters. He displays a contempt for the court that is
shocking.
[8]
It is trite that he is being imbursed for the installation of the
meters on the very process that
is the core of the review and that
caused the interdict. The tariffs on the meters are at issue. No
number of excuses or defences
that the residents asked him to install
the meters will legalise his conduct. He and his legal
representatives were warned and
cautioned; over and over.
Non-compliance of this nature cannot be tolerated.
[9]
The process employed to achieve the installation of the meters and
the contract with the second
and fourth respondents are alleged to be
improper, illegal and might be to the detriment of the residents of
Brandfort and the
administration of justice.
[10]
The law as applied in Secretary of the Judicial Commission of Inquiry
into Allegations of State Capture, Corruption
and Fraud in the Public
Sector including Organs of State v Zuma and Others
[2021] ZACC 18
that was followed by the case of Zuma v Secretary of the Judicial
Commission of Inquiry into Allegations of State Capture, Corruption
and Fraud in the Public Sector Including Organs of State and Others
(CCT 52/21)
[2021] ZACC 28
;
2021 (11) BCLR 1263
(CC) (17 September
2021) is applicable here.
[11]
It has been proven beyond any doubt that Mafumu Consulting (Pty) Ltd
and Mr. Mike Manyike deliberately, intentionally
(i.e., wilfully) and
without any justification, disobeyed the order granted by this court
on 5 November 2021.
[5]
The assessment of an application for leave to
appeal lies in the words of the Supreme Court of Appeal that was
spoken recently in
Ramakatsa and
others v African National Congress and another
[2021] JOL 49993
(SCA) in March 2021 at paragraph [10]:
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. (Accentuation
added)
[6]
The atmosphere of this case reminded of the
words of the Constitutional Court in
Shinga
v The State and another (Society of Advocates (Pietermaritzburg Bar)
intervening as Amicus Curiae); S v O'Connell and others
2007 (2) SACR 28
(CC) that defined the judicial character of the task
conferred upon a presiding officer in determining whether to grant
leave to
appeal. Although having heard the evidence and having made a
ruling; the judge is called upon to consider whether another Court
may reach a different conclusion. This requires a careful analysis of
both the facts and the law that have supported the judgement
a
quo
and a consideration of the
possibility that another Court may differ either in relation to the
facts or the law or both. This is
a task that has been carried out by
High Court Judges for many years and it is a judicial task of some
delicacy and expertise.
It should be
approached on the footing of intellectual humility and integrity,
neither over-zealously endorsing the ineluctable
correctness of the
decision that has been reached, nor over-anxiously referring
decisions that are indubitably correct to an appellate
Court.
(Accentuation added)
[7]
To conclude; the Applicants in this matter did
not convince on proper grounds that they have prospects of success on
appeal.
[8]
ORDER
The
applications for leave to appeal are dismissed with costs.
M
OPPERMAN, J
APPEARANCES
For
the BRANDFORT FORUM & OTHERS: ADVOCATE W
GROENEWALD
WP
PIETERS
Hendrikz
& De Vletter
BRANDFORT
c/o
SYMINGTON & DE KOK ATTORNEYS
169B
Nelson Mandela Drive
Westdene
BLOEMFONTEIN
051
505 6600
Ref:
M GERTENBACH/FXM3327
jaucamp@symok.co.za
For
MAFUMA
CONSULTING PTY LTD &
MIKE
MANYIKE ADVOCATE
S GROBLER SC &
ADVOCATE
HENDRIKS
GN
STRAUSS
KRUGER
VENTER INC
68B
Kellner Street
WESTDENE
BLOEMFONTEIN
051
011 2323
Ref:
SK/TL/MB0139
reception@krugerventerinc.co.za
[1]
See
pages 300 to 344 of the Bundle dated 4 November 2021.
[2]
Page
297 of the Indexed Bundle dated 4 November 2021.