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2021
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[2021] ZAMPMBHC 8
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Mpumalanga MEC for Public Works v Kwa-Mahlaba Connect CC (303/2021) [2021] ZAMPMBHC 8 (21 February 2021)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT
OF SOUTH AFRICA
(MPUMALANGA
DIVISION, MBOMBELA)
CASE
NO: 303/2021
In the matter
between:
MPUMALANGA MEC
FOR PUBLIC WORKS, ROADS &
TRANSPORT
First
applicant
MPUMALANGA
DEPARTMENT OF PUBLIC WORKS,
ROADS
& TRANSPORT
Second
applicant
and
KWA-MAHLABA
CONNECT CC
First
respondent
UNIWISP
(PTY) LTD
Second
respondent
ICT
GLOBE MANAGEMENT (PTY) LTD
Third
respondent
ABT
TELECOMS (PTY) LTD
Fourth
respondent
CHEAPCALLS
Fifth
respondent
ICASA
Sixth
respondent
J
U D G M E N T
MASHILE
J:
[1]
In consequence of the respondents being a few, I deem it necessary to
refer to them by their actual
names to avoid confusion. Where
appropriate and depending on the context, the Respondents will mean
the First to Third Respondents.
That said and for similar reasons,
albeit slightly different, I will refer to the Applicants simply as
the Applicant. This matter
first served before this Court as an
urgent matter on 9 February 2021. The Applicant sought the following
relief:
“
1.
……
2.
That the first, second and third respondents be ordered and compelled
to port forthwith telephone
numbers [013 766 0000 to 013 766
9999] to the fifth respondent;
3.
That the first second and third respondents be ordered and compelled
to relinquish and transfer
to the first and second applicants and
fourth respondent management and control of telephone numbers
[013 766 0000 to 013 766
9999];
4.
That the first second and third respondents, jointly and severally
with any other respondent
opposing this application be ordered to pay
the costs of this application on the scale as between attorney and
client;”
[2]
During argument on urgency on 9 February 2021, Kwa-Mahlaba Connect CC
(“Kwa-Mahlaba”),
Uniwisp Management (Pty) Ltd (“Uniwisp”)
and ICT Globe (Pty) LTD (“ICT Globe”) registered a grave
complaint.
The complaint concerned the truncated period within which
they had to prepare, serve and file their answering papers. The
Applicant,
they argued, had approximately 14 days within which to
launch the application whereas they were afforded only 1 day to do
the same.
As a result of this, they alleged that the quality of their
arguments in the papers could not fairly match the case mounted
against
them by the Applicant. I suggested to the parties that the
matter be stood down to the following Tuesday, the 16
th
of
February 2021 to enable the affected parties to file supplementary
papers. The costs of that day were reserved at the instance
of the
Respondents.
[3]
When the parties returned to court on 16 February 2021, Counsel for
the Applicant advised the
court that the Applicant would not be
pursuing the relief initially sought against ICT Globe and that it
would be withdrawing the
application against it. For that reason, Mr
De Villiers who had appeared on behalf of ICT Globe previously was
not present in court.
The court stood down the matter for
approximately 30 minutes to allow the Applicant to deliver a notice
of withdrawal of the application
against ICT Globe. Subsequently, the
notice of withdrawal, as promised, was filed with the court. The
withdrawal of the application
against ICT Globe was prompted by the
latter agreeing to comply with Prayer 2 of the notice of motion,
which I have described in
Paragraph 1
supra
.
[4]
The understanding between the Applicant and ICT Globe left
Kwa-Mahlaba and Uniwisp to oppose the
application alone. However,
because the two’s refusal to port the numbers as prayed was
contingent upon ICT Globe’s
co-operation, it dawned upon
Kwa-Mahlaba and Uniwisp that they could not continue to oppose the
matter without ICT Globe being
part of their team. ABT Telecoms (Pty)
Ltd (“ABT” supported the withdrawal of the application
against ICT Globe. Simply
put, this presaged effective collapse of
the matter as no issues other than costs were left for the court to
decide.
[5]
The Applicant was resolute that costs must follow result – the
party that lost must be liable
for the costs of the triumphant and it
believed that it was in this case. It contended that the Respondents
never had a case. Of
the three respondents, ICT Globe was the only
one that acknowledged that it was unsustainable to persist with its
opposition. It
was That grasp of the facts and law that fortified its
stance to settle the matter with the Applicant.
[6]
In opposition, Kwa Mahlaba and Uniwisp asserted that the fallacy in
the Applicant’s argument
is that they were brought to court
because the Applicant believed they had a substantial and direct
interest in the matter. If
that was not the case, continued the
argument, the Applicant would not have dragged them to court. If the
Applicant is correct
in its argument, then it should be liable for
the costs otherwise the court should allow them to supplement their
papers to articulate
their position on the settlement of the matter
between the Applicant and ICT Globe.
[7]
It is trite that ordinarily costs follow results. As such, a
determination of who was successful
in these proceedings is the
overwhelming issue. To do this, it is important to assess the
circumstances that led to the collapse
of the application.
[8]
Kwa-Mahlaba and Uniwisp had a direct and substantial interest in the
matter of porting of the
numbers. Their interest is unmistakable from
their response to the request to port the numbers to ABT by the
Applicant. It appears
that the Applicant, until the day before the
hearing of this application (15 February 2021) had firmly believed
that it could not
get ICT Globe to consent to the porting of the
numbers without the permission of Kwa-Mahlaba and Uniwisp. It is
apparent that both
the Applicant and ICT Globe came to the
realisation that they could conclude a settlement agreement without
Kwa-Mahlaba and Uniwisp
between the 9
th
of February 2021
and 15 February 2021. The Applicant was conscious that the case of
Kwa-Mahlaba and Uniwisp would be stillborn
without ICT Globe.
[9]
Equally, Kwa-Mahlaba and Uniwisp were mindful that their case leaned
heavily on the support and
co-operation of ICT Globe. If not, they
would have elected to proceed defending the matter against the
Applicant alone. Their acknowledgment
of the fall of the matter on 16
February 2021 is reminiscent of a party that would have reassessed
its position as soon as it had
been apprised of the likely settlement
between the Applicant and ICT Globe. I cannot blame Kwa-Mahlaba and
Uniwisp for sticking
it out to the last minute as they were not aware
that the matter had taken a different turn that could put them in a
precarious
position.
[10]
Settlement of the matter with ICT Globe must therefore be one that
necessarily involve Kwa-Mahlaba
and Uniwisp because all parties,
until the arrangement between the Applicant and ICT Globe had
laboured under the impression that
the Respondents were in the matter
as a unit. They did not put themselves into this unenviable
situation. The victory realised
by the Applicant was only possible
because ICT Globe broke ranks with the other two parties. The
Applicant ought to be reminded
that the settlement that it reached
with ICT Globe is the product of negotiations and not a judgment of
this Court. Had the matter
continued to be opposed, the court would
be forced to make a cost order one way or the other.
[11]
All that said, the point is that the parties have settled the matter
in a manner that favours the Applicant
insofar as it has accomplished
what it had set out to. The settlement, although welcomed, is
unpalatable insofar as its success,
for now, rests on negotiations
that were conducted in bad faith with one of the Respondents, ICT
Globe. Acknowledging that the
Applicant has been successful and that
it might well have succeeded in the end, I cannot grant costs in its
favour for reasons
described above. Similarly, all the Respondents
have failed in their opposition of the matter but I cannot single out
two of them
to bear the costs of the 16
th
of February
2021. A fair and just cost order in these circumstances is one that
should recognise that the parties came to an arrangement.
As such,
all of them should pay their own costs.
[12]
Turning then to the reserved costs of the 9
th
of February
2021. The Applicant argued that the only party which could claim that
it has had only one day to prepare for the urgent
matter on 9
February 2021 is ICT Globe. Kwa-Mahlaba and Uniwisp had more than a
day because they were served with unsigned papers
the previous week.
Thus, they knew that the application was imminent and should have
taken the trouble of preparing their opposing
papers timeously. In
any event, it is not evident from the contents of the supplementary
papers of Kwa-Mahlaba and Uniwisp that
their case has changed
complexion as a result. For those reasons, the Applicant asked that
they be directed to pay for the reserved
costs of the 9
th
of February 2021.
[13]
Conversely, Kwa-Mahlaba and Uniwisp contend that while it is true
that they received the papers the
previous week, as alleged by the
Applicant, those papers were still to be issued. Parties, continued
the argument, have no obligation
to respond to papers that are yet to
be issued. As such, they only gave attention to them as soon as they
realised that the papers
had been through the court. Regarding the
contents of the supplementary affidavits, they strongly argued that
the contents of Marius
Botha who deposed to the supplementary
affidavit of Uniwisp was more detailed as it gave an exposition of
the porting procedure
as contemplated in the
Electronic
Communications Act, 36 of 2005
and other matters. Kwa-Mahlaba and
Uniwisp asked that their costs be paid by the Applicant.
[15]
The postponement of the application on the 9
th
of February
2021 was an acknowledgment that the time afforded to the Respondents
to respond to the Applicant’s papers was
‘cut too thin’
to expect well-articulated papers in response. It is of no moment
that the Respondents had been warned
of the impending urgent
application as anything could have intervened between the preparation
of the papers and the issuing. Had
the Respondents commenced with
their preparation immediately after the threat, would the Applicant
be happy to compensate them
for their costs? The probable answer is
no.
[16]
The contents of the supplementary affidavit of Uniwisp shed nothing
new but they do provide detail
explanation, which the previous papers
lacked. It would be disingenuous to suggest that one derived no
benefit from the comprehensive
discussion of the procedure. This part
of the argument aside, the point is that the court postponed the
matter due to the Respondents
having been given insufficient time
within which to oppose the application.
[17]
In the circumstances, I am constrained to make the following order:
1.
The Applicant is liable for the costs of
Kwa-Mahlaba and Uniwisp for the 9
th
of February 2021;
2.
Each party is to pay its own costs for the
16
th
of February 2021.
______________________________
B A MASHILE
JUDGE OF THE HIGH
COURT OF SOUTH AFRICA
MPUMALANGA
DIVISION, MBOMBELA
This judgment was
handed down electronically by circulation to the parties and/or
parties’ representatives by email. The date
and time for
hand-down is deemed to be 19 February 2021 at 10:00.
APPEARANCES:
Counsel for the
Applicants:
Adv TP Kruger SC
Instructed
by:
State
Attorney
Counsel for the
First & Second Respondent:
Adv C Erasmus SC
Instructed
by:
Swanepoel & Partners
Inc
Counsel for the
Third Respondent:
Adv R de Villiers
Instructed
by:
Van Zyl Inc
Counsel for the
Forth Respondent:
J Berger
Instructed
by:
ENS Africa
Date of
Hearing:
16 February 2020
Date of
Judgment:
21 February 2021