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[2021] ZANCHC 69
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Kamiesberg Local Municipality and Another v Koingnaas Belasting Betalersvereniging and Another (2609/2021) [2021] ZANCHC 69 (31 December 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
NORTHERN
CAPE DIVISION, KIMBERLEY
Case
No:
2609/2021
Heard:
20/12/2021
Date
available:
31/12/2021
Reportable:
YES/NO
Circulate
to Judges: YES/NO
Circulate
to Magistrates: YES/NO
Circulate
to Regional Magistrates: YES/NO
In
the matter between:
KAMIESBERG
LOCAL
MUNICIPALITY
1
st
Applicant
THE
MUNICIPAL MANAGER OF KAMIESBERG
LOCAL
MUNICIPALITY
2
nd
Applicant
and
KOINGNAAS
BELASTING BETALERSVERENIGING
1
st
Respondent
JOHAN
G
GRӒBE
2
nd
Respondent
JUDGMENT
Mamosebo J
[1]
The first applicant (Kamiesberg Local Municipality or KLM) and the
second
applicant (the municipal manager) brought an urgent
application that I heard on the afternoon of Monday 20 December 2021
calling
upon the respondents to show cause why they should not be
interdicted and restrained from performing certain acts and conduct
set
out in detail hereunder. The applicants are represented by Adv
Van Tonder and the respondents by Adv Kriel.
[2]
The applicants are seeking a rule
nisi
in these terms:
"1.
That the applicants' failure to adhere to this Court's rules relating
to time periods and service
be condoned, and the application be heard
as an urgent application in terms of the provisions of Rule 6(12)(a)
and (b);
2.
That a rule nisi be issued, returnable on Friday, 04 February
2022 at 09:30 alternatively upon such date as this Court deems
meet, calling upon the respondents to show cause if any, why the
following orders should not
be made final:
2.1
That the first and second respondents are interdicted
and prohibited from interfering with the rights of access of
any member of the public to the municipal and public roads situated
within the town of Koingnaas;
2.2
That the first and second respondents are interdicted
and prohibited from conducting any roadworks, maintenance
and/or repairs to any municipal and public roads situated within the
municipal
district of the Kamiesberg
Municipality;
2.3
That the first and second respondents are interdicted
and prohibited from entering the first applicant's sewerage
plant, water plant, and rubbish dump situated
in the
town of Koingnaas;
2.4
That the first and second respondents are interdicted
and prohibited from interfering with any of the first
applicant's infrastructure including water and sewerage systems
within the
municipal district of the first applicant;
2.5
That the first and second respondents are interdicted
and prohibited from conducting any works, construction,
maintenance and/or repairs to any of the first applicant's
infrastructure,
including water and sewerage systems, buildings,
assets or property situated
within
the
town of Koingnaas;
2.6
That the first and second respondents are interdicted
and
prohibited from interfering with the second applicant and/or any of
the employees and staff of the
first applicant;
2.7
That the first and second respondents are interdicted
and
prohibited from interfering with the administration and/or day to day
running of the first applicant's
functions at:
2.7.1
The Kamiesberg
municipal service point at Koingnaas;
2.7.2
The Koingnaas
sewerage plant and sewerage systems;
2.7.3
The
Koingnaas
water
system;
2.7.4
The Koingnaas
municipal
rubbish
dump;
2.7.5
The Kamiesberg
municipal offices situated at 22 Main Road, Garies;
2.8
That the first and second respondents be interdicted and
prohibited from threatening the second applicant
and/or
any of the employees and staff of the first applicant;
2.9
That the South African Police Service be directed and
authorised to take all reasonable and necessary steps to give effect
to this
order.
2.10
That
the first and second respondents be ordered to pay the costs of this
application jointly and severally, the
one to
pay
the
other
to
be absolved.
3.
The order contained in 2.1 to 2.9 above serve as an interim
interdict with immediate effect, pending the finalisation of this
application.
4.
That
the
rule
nisi
be served
as
follows:
4.1
Upon the first and second respondents in terms of the uniform
rules
of
Court and
per
e-mail;
4.2
Upon the members of the first respondent by means of
publication
in the Plattelander
[newspaper].
5.
Further
and/or
alternative
relief."
[3]
The Notice of Motion, Founding Affidavit and Annexures "RCB1"
to "RCB10" were served on the respondents on 15 December
2021 at 12: 30 by email and by the sheriff personally on the
second
respondent, Johann G Gräbe, as the chairperson of the first
respondent, the Ratepayers' Association. The respondents
had until 15
December 2021 at 16:30 to file their notice of intention to oppose
and their opposing papers by 17 December 2021.
No notice of intention
to oppose was filed. Mr Van Tonder explained that he only received
the opposing papers at 11: 30 on the
day of the hearing. The filing
sheet bears the heading
"filing sheet respondents replying
affidavit"
signed by JC Kidson, of Stupel & Berman Inc.
for the respondents. It was not signed by Engelsman Magabane, the
local correspondent
attorneys. It is therefore unclear who the
attorneys are in respect of the filing sheet.
Points
in limine
[4]
It was on that basis that Mr Van Tonder submitted that:
4.1
The respondents' papers are not properly before Court and should be
disregarded. However, should the
Court decide to accept the papers,
it should find that the opposing affidavit is not clear and legible.
I must indicate at this
early stage that the opposing affidavit is
indeed not legible and counsel was alerted thereto.
4.2
That whereas the second respondent deposed to the opposing affidavit
which was signed by him on 17 December
2021 and commissioned on the
same day, it is inexplicable why it was only served on the applicants
less than three hours before
the hearing (on 20 December 2021) and
describe it as a hearing by ambush.
4.3
That there
has not been full compliance with the regulations
governing
the administration of an oath or affirmation issued
under s 10
of the Justices of the Peace and Commissioner of
Oaths
Act
[1]
in that the purported
Commissioner of Oaths failed to print his or her names and surname in
full. Regulation
3
stipulates:
"(2)
The
commissioner
of
oaths
shall
-
(a)
sign the declaration and print his full name and
business
address
below
his
signature;
and
(b)
state his designation and the area for which he holds
his appointment or the office held by him if he holds his appointment
ex officio."
Undoubtedly,
the Commissioner of Oaths has not complied with Regulation 3(2)(a)
above. Counsel for the respondents has nonetheless
indicated that the
respondents wish to argue urgency of the matter contending that the
application is not urgent.
The historical
background.
[5]
Mr Rufus Comarco Beukes is the Municipal Manager of the first
applicant, Kamiesberg
Local Municipality. KLM is responsible for the
provision of municipal services in 16 small towns in the Namakwa
District. Koingnaas
is one of the 16. Koingnaas was a mining town
established, owned and controlled by De Beers Consolidated Mines
(Pty) Ltd who provided
services to its residents. In 2010 De Beers
partially transferred municipal services of Koingnaas to the
Kamiesberg Local Municipality
in terms of an agreement relating to
the transfer of Municipal Services. In 2016 De Beers transferred the
remainder of the services
to the Municipality. The applicants concede
that rendering services to the small towns is impaired by the
distances involved. For
example, in order to provide water to
Koingnaas it has to be pumped over a distance of about 20km's from
Hondeklipbaai.
[6]
About a year ago, the residents of Koingnaas established a
ratepayers'
association in Koingnaas. The chairperson of the
association, Mr Gräbe, directed correspondence on behalf of the
association
making certain demands from the Municipality and setting
ultimatums pertaining to issues of service delivery. The ratepayers
maintain
that their services have deteriorated since the transfer
from De Beers to the Municipality. They therefore demand that:
(i)
The Municipality should furnish them with the information pertaining
to the amounts
collected from the Koingnaas residents monthly;
(ii)
The residents take control of the said monthly accounts;
(iii)
The applicants furnish them with a monthly statement of income and
expenses on or before the 7
th
of each month; and
(iv)
they be furnished with the founding documents of KLM to enable an
independent monthly audit of the
finances of Koingnaas to be
conducted. The applicants maintain that it is impossible to furnish
such information as its responsibility
covers 16 municipalities.
[7]
On 06 December 2021 Mr Ceril Cook, one of KLM's general workers,
telephonically
contacted Mr Beukes informing him about construction
work being performed on the Koingnaas roads by the first and/or
second respondent
and/or any of the first respondent's members. The
Municipal Manager contacted the South African Police Services (SAPS)
whose members
reportedly later confronted the respondents, which led
to an altercation between the two sides. The issue was around lack of
skills
or alleged incompetence and shoddy work by employees of the
first applicant.
[8]
On 09 December 2021 the Municipal Manager received an e-mail from the
second respondent asserting that the association will continue to do
the work, raising the defence of
negotiorum gestio,
because
they had commenced with repairs to the town itself on 06 December
2021. The respondents further threatened to take control
of the
infrastructure of Koingnaas at the end of December 2021 stating:
"Verder stet die
KBBV die Kamiesberg Munisipaliteit in kennis dat sodra die KBBV klaar
is met die paaie einde van Desember
2021 gaan ans oak beheer vat oar
die water, riool, geboue en vullis werke van Koingnaas onder die
regsbeginsel 'negotiorum gestio"'.
(Losely translated:
The KBBV also informs the Kamiesberg Municipality that as soon as the
KBBV has completed the roads at the end
of December 2021, we will
also take control of the water, sewage, buildings and refuse works of
Koingnaas under the legal principle
'negotiorum gestio'). "KBBV"
is an acronym for
Koingnaas Belastingbetalersvereniging
.
[9]
The Municipal Manager avers that for the repairs to the construction
of
the road, the respondents have intimated that they will serve an
invoice to the applicant in the amount of R120,000.00. The
explanation
furnished pertaining to the delay in the repairs to the
sewerage plant is that it has been put on tender and the successful
tenderer
was to prepare a business plan to be lodged with the
Department of Water and Sanitation to resolve the sewerage problems.
In as
far as the water problems are concerned, the first applicant
takes water samples regularly for testing which tests have confirmed
that the Koingnaas water is fit for consumption. The applicants also
deny that the Koingnaas residents were without water for 35
days as
alleged by the respondents. They do, however, confirm that there are
sometimes challenges with the water pressure. The
respondents concede
that they have commenced with the repairs of the roads and will,
after completion thereof, take over the infrastructure,
water and
sewerage projects as they deem it justified to do so.
[10]
Despite the
fact that the applicants have urged the respondents to discontinue
with their operations as they have no official mandate
from the first
applicant, the respondents persisted in their conduct, resulting in
this application being brought on an urgent
basis. Mr Van Tonder
contended that the respondents are simply obfuscating by raising
constitutional issues. Counsel also submitted
that the respondents
had not followed the correct procedures as was the case in the
Kgetlengrivier
Concerned Citizens and Another v Kgetlengrivier Local Municipality
and Others
[2]
because
they failed to approach the court first before taking over the
services. They have not, as argued by Mr Van Tonder, put
the
Kamiesberg Local Municipality on terms first before taking over the
services. This issue may be dealt with on the return date,
if so
advised. In his heads of argument, Mr Kriel stated the following
pertaining to this aspect:
"the respondents
raise constitutional issues in the papers but due to the extremely
urgent manner in which they were dragged
to Court, no notices in
terms of Rule 16A(1)(a), as a Constitutional issue is raised for
consideration."
[11]
The respondents argue that the applicants have an alternative remedy
of resorting to the
SAPS. However, it is worth noting that a
paragraph in an email marked "RCB6" dated 08 December 2021
written in the morning
by the second respondent in his capacity as
the chairperson of the ratepayers' association addressed to the
Municipal Manager,
the following was said:
"Sonder dat u,
Mr R Beukes, 'n hofbevel het
u die hoof van die SAPD by
name, Adjudant B Jacobs en mislei u die SAPD om die inwoners wat
hulle dorp wil herstel te intimideer
met hulle voertuie, verhoor
en
tronk
praatjies."
(Emphasis
added)
(Losely translated:
You,
Mr R Beukes, without a court order, are misleading the head of the
SAPS, W/O B Jacobs to intimidate the residents who want
to restore
their town with their SAPS vehicles, trial and prison
talks).
[12]
In a later email from the chairperson to the Municipal Manager, also
on 08 December 2021
in the afternoon marked "RCB 7" the
following passage is relevant:
"Elkeen van die
14 werkers teenwoordig gister en [vandag] het reeds [te kenne] gegee
dat hulle teen [Konstabel] Afrika sat
getuig sou die KBBV voortgaan
met regstappe. Daarom word die SAPD hiermee amptelik die volgende
drie dinge van die KBBV
se
kant versoek.
•
Kia Konstabel
Afrika aan vir wangedrag. Koingnaas het die getuienis
wat
nodig
is om Afrika
uit
die
SAPD
te
ontslaan.
•
Konstabel
Afrika is in sy offisiele hoedanigheid nie welkom in Koingnaas nie
die KBBV het deur Afrika
se
varklik gedrag a/le vertroue
in die SAPD
Hondeklipbaai
verloor.
•
Voor Jy
Adjudant B Jacobs weer teen enige mens of instelling optree maak
seker jy het die nodige magtiging van die howwe van RSA
het volgende
keer mag dit Jou dalk duur te staan kom."
(Loosely translated:
Each of the 14 workers present yesterday and today have already
intimated that they will testify against [Constable]
Africa should
the KBBV continue with legal action.
Therefore, the KBBV
hereby officially requests the following three things from the SAPS
side.
•
Charge
Constable Africa with misconduct. Koingnaas has the requisite
evidence
to
have
Africa
fired from
the SAPS.
•
Constable
Africa is in his official capacity not welcome in Koingnaas. The KBBV
has lost all confidence in the SAPS Hondeklipbaai
due
to
Africa's
despicable
behaviour.
"Before you, W/0
B Jacobs, take any steps against any person or institution again,
make sure you have the necessary authority
from the courts of RSA
because next time it could cost you dearly."
[13]
From the opposing affidavit, it is unclear which aspects of the
applicants' case or averments
are admitted or denied by the
respondents. For example, in response to paras 17 to 26 of the
founding affidavit which set out a
detailed background of the events
leading to this application, the respondents merely answer at para 17
in this manner:
"17.1 In as much
as these paragraphs contain factual allegations, relaying inter alia
the correspondence between the parties,
same is noted.
17.2 Save as
aforesaid, the contents is denied."
Gleaning
from the founding papers and the responses thereto it is evident that
the respondents do not deny the facts as set out
by the applicants,
more particularly, the fact that they had commenced with the repairs
of the roads and will not be deferred.
[14]
Mr Kriel, for the respondents, pointed out that the papers were
prepared under tremendous
pressure by a client in a rural setting,
hence their resolve to communicate by e-mail. He says that the second
respondent was unassisted
when he drafted the opposing papers and
urged that the quality of the opposing papers not be visited on the
respondents with an
adverse finding. In any event, the argument went,
that the Court should find that there was substantial compliance. I
find it hard
to fathom because the terminology used by the deponent
to the answering affidavit does not reflect the vocabulary of a lay
person.
For example
he: 'does not intend to deal seratium with
each and every allegation', 'raise the point in limine that this
application is contrived',
'in limine application contrived and not
urgent: '6.1 in my capacity as the chairperson of the first
respondent, I am aware that
an applicant in an application for urgent
relief in terms of rule 6(12)(a) of the Uniform Rules of Court needs
to concisely set
out the reasons why an application is urgent and why
a substantial redress in due course
could not be
obtained.'
[15]
Mr Kriel
submitted that even if the Court should find that the application is
urgent it must be established, first if the respondents
were afforded
adequate opportunity and secondly, whether there is
prejudice
to the administration of justice if the application is brought
at short
notice. But this is not the test. The correct approach emanate from
Mogalakwena
Local
Municipality v The Provincial Executive Council, Limpopo and
Others
[3]
where
the Court held:
"It seems to me
that when urgency is an issue the primary investigation should be to
determine whether the applicant will be
afforded substantial redress
at a hearing in due course. If the applicant cannot establish
prejudice in this sense, the application
cannot be urgent. Once such
prejudice is established, the other factors
come
into
consideration. These factors include (but are not limited to):
Whether the respondents can adequately present their cases in
the
time available between the notice of the application to them and the
actual hearing, other prejudice to the respondent's and
administration of justice, the strength of the case made by the
applicant and any delay by the applicant in asserting its rights.
The
last factor is often called, usually by counsel acting for the
respondents, self-created urgency."
See
also
Luna
Meubel Vervaardigers (Edms) Bpk v Makin's (t/a Makin's Furniture
Manufacturers)
[4]
.
[16]
According to Mr Kriel nowhere in their papers do the respondents
threaten to damage any
of the infrastructure. What they are engaged
in is to provide self-service to the consumers as a result of the
failure by the applicants
to provide adequate service. The fact that
raw sewerage flow into their homes and have been without water for an
extended period
should cause the Court to find in their favour. The
Court accordingly ought to find that this application is not urgent
and to
strike it from the roll. This will also give the respondents
an opportunity to bring a counter-application.
[17]
The respondents also raised the issue of non-joinder of the South
African Police Services
as interested parties in the matter. This
submission was countered by Mr Van Tonder, correctly so in my view,
that the relief sought
by the applicants is not against the police
but the respondents only. The role of the police in this application
would be to give
effect to this Court's order.
I
therefore find that the argument pertaining to the non-joinder of the
SAPS lacks merit.
[18]
Mr Kriel cautioned that should the relief sought be granted against
the respondents the
status quo
of direct infringements of
fundamental rights will prevail. On the other hand should the relief
not be granted, the respondents
will continue with the repair to the
road, sewerage system, water supply, and potholes.
[19]
It is clear
to me that this matter involves the public purse. The fact
that the
respondents are effecting repairs to the roads and rendering invoices
to the first applicant, without any formal procurement
processes it
is in conflict with the provisions of section 217 of the
Constitution
[5]
of
our
country
which
would
result
in
wasteful
and
irregular expenditure. The association has therefore arbitrarily
arrogated to itself a monopoly as sole service provider. The
services
have not been sanctioned by the municipal council and have closed the
door
to
fairness,
equity,
transparency
and
competition.
[20]
In
Safcor
Forwarding (Johannesburg) Pty Ltd v National Transport
Commission
[6]
Corbett
JA stated:
"The Uniform
Rules of Court do not provide substantively for the granting of a
rule nisi by the Court. Nevertheless, the practice,
in certain
circumstances, of doing so is firmly embedded in our procedural
law.... This is recognised by implication in the Rules
(see, eg, Rule
6(8) and Rule 6(13)). The procedure of a rule nisi is usually
resorted to in matters of urgency and where the applicant
seeks
interim relief in order to adequately protect his immediate
interests.
It is a useful procedure and one to be
encouraged rather than to be
disparaged in
circumstances where the applicant can show, prima facie, that his
rights have been infringed and that he will suffer
real loss or
disadvantage if he is compelled to rely solely on the normal
procedures for bringing disputes to court by way of notice
of motion
or summons. The rule nisi procedure must be considered in
conjunction with the provisions of Rule 6(12) which, in the case of
urgent
applications,
permits
the Court
to:
'dispense with the
forms and service provided for in these Rules and (to) dispose of
such matter at such time and place and in such
manner and in
accordance with such procedure (which shall as far as practicable be
in terms of these Rules) as to it seems meet'.
(And see in this
connection Republikeinse Publikasies (Edms) Bpk Republikeinse v
Afrikaanse Pers Publikasies (Edms) Bpk
1972 (1) SA
773
(A) at 781H
-
782G). In fact, the rule nisi procedure does
make it possible for the application to come before the Court for
adjudication more
speedily than the usual procedures for the set down
of
applications
or
trials,
and
it
does,
in
a
proper
case,
permit
of the granting
of interim
relief."
[21]
The truth of the matter is that an application was launched against
the respondents to
prohibit and restrain them from continuing with
what they refer to as "self-service" until the matter is
properly ventilated
in Court. The basis for the respondents to take
over the municipal services has not been tested and endorsed by the
Court. It will
be a travesty of justice to strike such a matter from
the roll when it has the potential to create precedent for all the
other
towns and cities aggrieved by poor service delivery.
[22]
The
applicants have to meet the test for interim relief, namely, the
well-known requirements for the grant of an interim interdict
set out
in
Setlogelo
v Setlogelo.
[7]
The test requires that an applicant that claims an interim interdict
must establish (a) a prima facie right even if it is open
to some
doubt; (b) a reasonable apprehension of irreparable and imminent harm
to the right if an interdict is not granted; (c)
a balance of
convenience which favours the grant of the interdict and (d)
that the
applicant
has no
other remedy.
[23]
Legislatively, the responsibility to render municipal services lies
with the Municipality.
They not only carry the mandate from the
Constitution but also from the subsidiary legislation. That gives the
applicants the right
to carry out their obligation as the accounting
office and officer. Whether there stands to be apprehension of harm
suffered by
the applicants is irrefutable. The intentions of the
respondents may be well and good but without following proper
processes and
ensuring that they are fair, equitable, transparent,
competitive and cost-effective, is impermissible.
[24]
Mr Kriel argued that the alternative remedy for the applicants may be
resorting to the
SAPS. The mere thought of such intervention has been
deprecated by the Courts. SAPS cannot act without a court order. The
balance
of convenience favours the granting of interim relief to the
applicants since they stand to suffer irreparable and imminent harm
should an order interdicting the ratepayers association not be
granted in the applicants' favour.
[25]
I am therefore of the view that good grounds exist for me to exercise
my discretion to
grant interim relief in favour of the applicants for
which they have made out a proper case.
Costs
[26]
It is trite
that the awarding of costs is in the discretion of the court. The
Constitutional Court in
Ferreira
v Levin NO and Others
[8]
pronounced:
"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 a 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 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 litigants and the nature of proceedings."
There
is no reason why costs should not follow the results.
[27]
The following order is made:
1.
The applicants' failure to adhere to this Court's rules relating to
time periods
and service are condoned, and the application is heard
as an urgent application in terms of the provisions of Rule 6(12)(a)
and
(b).
2.
A rule
nisi
is issued calling upon the first and the second
respondents to show cause on Friday 04 February 2022 at 09: 30 or as
soon thereafter
as the parties may be heard why an order in the
following terms should not be made final:
2.1
That the first and second respondents are interdicted and prohibited
from interfering with the
rights of access of any member of the
public to the municipal and public roads situated within the town of
Koingnaas.
2.2
That the first and second respondents are interdicted and prohibited
from conducting any road
works, maintenance and/or repairs to any
municipal and public roads situated within the municipal district of
the Kamiesberg Municipality.
2.3
That the first and second respondents are interdicted and prohibited
from entering the first applicant's
sewerage plant, water plant and
rubbish dump for purposes of conducting work in the town of
Koingnaas.
2.4
That the first and second respondents are interdicted and prohibited
from interfering with any
of the first applicant's infrastructure
including water and sewerage systems within the municipal district of
the first applicant.
2.5
That the first and second respondents are interdicted and prohibited
from conducting any works,
construction, maintenance and/or repairs
to any of the first applicant's infrastructure, including water and
sewerage systems,
buildings, assets or property situated within the
town of Koingnaas.
2.6
That the first and second respondents are interdicted and prohibited
from interfering with the
second applicant and/or any of the
employees and staff of the first applicant.
2.7
That the first and second respondents are interdicted and prohibited
from interfering with the
administration and/or day to day running of
the first applicant's functions at:
2.7.1
The Kamiesberg municipal service point at Koingnaas.
2.7.2
The Koingnaas sewerage plant and sewerage systems.
2.7.3
The Koingnaas water system.
2.7.4
The Koingnaas municipal rubbish dump.
2.7.5
The Kamiesberg municipal offices situated at 22 Main Road,
Garies.
2.8
That the first and the second respondents are interdicted and
prohibited from threatening the
second applicant and/or any of the
employees and staff of the first applicant.
2.9
That the South African Police Service are directed and authorised to
take all reasonable and necessary
steps to give effect to this order.
2.10 That the
first and second respondents are ordered to pay the costs of this
application jointly and severally, the
one to pay the other to be
absolved.
3.
The order contained in 2.1 to 2.9 above serve as an interim interdict
with immediate
effect, pending the finalisation of this application.
4.
That the rule
nisi
be served as follows:
4.1
Upon the first and second respondents' attorney of record by e-mail.
4.2
Upon the first and second respondents by the sheriff.
4.3
Upon the members of the first respondent by means of publication in
the Plattelander newspaper.
M.C.
MAMOSEBO
JUDGE
OF THE HIGH COURT
NORTHERN
CAPE
DIVISION
For
the Applicants:
Adv. A.G. van Tonder
Instructed
by:
Van de Wall Inc
For
the Respondents:
Adv. Z.F. Kriel
Instructed
by:
Stupel & Berman Inc.
c/o
Engelsman Magabane
[1]
16 of 1963
[2]
(UM 271/2020)
[2020] ZANWHC 95
(18 December 2020)
[3]
(2014) JOL 32103
(GP) at paras 64; [2014] 4 All SA 67 (GP)
[4]
1977 (4) SA 135 (W)
[5]
Sec 217 (1) When an organ of state in the national, provincial, or
local sphere of government, or any other institution identified
in
national legislation, contracts for goods or services, it must do so
in accordance with a system which is fair, equitable,
transparent,
competitive and cost-effective.
(2)
Subsection (1) does not prevent the organs of state or institutions
referred to
in that subsection from implementing a procurement
policy providing for -
(a)
categories of preference in the allocation of contracts; and
(b)
the protection or advancement of persons, or categories of persons,
disadvantaged
by unfair discrimination.
(3)
National legislation must prescribe a framework within which the
policy referred
to in subsection (2) must be implemented.
[6]
1982 (3) SA 654
(A) at 674H - 675C.
[7]
1914
AD 221
at 227
[8]
[1996] ZACC 27
;
1996 (2) SA 621(CC)
at 642B - C (para 3)