About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Kwazulu-Natal High Court, Pietermaritzburg
SAFLII
>>
Databases
>>
South Africa: Kwazulu-Natal High Court, Pietermaritzburg
>>
2021
>>
[2021] ZAKZPHC 58
|
|
Zungu and Another v Mtubatuba Local Municipality and Others (6959/2020P) [2021] ZAKZPHC 58 (27 August 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
Case
No: 6959/2020P
In
the matter between:
MANDLAKAYISE
ZUNGU 1
ST
APPLICANT
NKOSINATHI
MLAMBU 2
ND
APPLICANT
and
MTUBATUBA
LOCAL MUNICIPALITY 1
ST
RESPONDENT
THE
MUNICIPAL COUNCIL OF MTUBATUBA
MUNICIPALITY 2
ND
RESPONDENT
THOBELANI
NGCAMPHALALA 3
RD
RESPONDENT
MBONGELENI
GINA 4
TH
RESPONDENT
D
R
NTULI 5
TH
RESPONDENT
THE
EXECUTIVE COMMITTEE OF MTUBATUBA
LOCAL
MUNICIPALITY 6
TH
RESPONDENT
MUNICIPAL
MANAGER: S R NTULI 7
TH
RESPONDENT
THE
MEMBERS OF THE EXECUTIVE COMMITTEE
FOR
CORORATE GOVERNANCE AND TRADITIONAL
AFFAIRS
IN
KWAZULU-NATAL 8
TH
RESPONDENT
KWAZULU-NATAL
DEPARTMENT OF COOPERATIVE
GOVERNANCE
AND TRADITIONAL AFFAIRS 9
TH
RESPONDENT
MR
MADONDO 10
TH
RESPONDENT
THE
AFRICAN NATIONAL CONGRESS 11
TH
RESPONDENT
THE
DEMOCRATIC
ALLIANCE 12
TH
RESPONDENT
THE
ECONOMIC FREEDOM FIGHTERS 13
TH
RESPONDENT
THE
AFRICAN INDEPENDENT CONGRESS 14
TH
RESPONDENT
THE
INKATHA FREEDOM
PARTY 15
TH
RESPONDENT
MAVIS
DAVIS 16
TH
RESPONDENT
ORDER
1. The
application is dismissed.
2. The
first respondent is ordered to pay costs of the application.
JUDGMENT
Mngadi.
J
[1] This
matter relates to the liability for costs on withdrawal of the
application.
[2] The
two applicants launched an urgent application against the sixteen
(16) respondents. They sought a relief
divided into Part A and Part
B. In part A they sought reinstatement as Mayor and Deputy Mayor of
the first respondent respectively
pending the review and setting
aside of the decision removing them from their positions as Mayor and
Deputy respectively sought
in Part B. The first respondent a local
municipality opposed the application. The other respondents did not
take any part in the
litigation.
[3] The
court (Gani AJ) dismissed with costs the relief sought in Part A.
After the dismissal of the relief sought
in Part A the applicants
withdrew the application relating to Part B of the relief without
tendering costs of the application.
The first respondent in this
application seeks an order that the applicants be held liable for the
costs of the application incurred
after the dismissal of Part A of
the relief. The applicants oppose the application.
[4] It
is apparent that the first respondent was in a tug of war between two
political parties. Its leadership
constantly changing hands between
the two political parties.
[5] The
applicants contend that when the relief foreshadowed in Part A was
refused, the delay in hearing the application
relating to the relief
in Part B rendered the issue academic. It was expected that the
application would be heard earlier. It later
transpired that at the
earliest the application would be heard in August 2021 which was a
period scheduled for local government
elections during which ,in any
case, new Mayors and Deputy Mayors would be elected.
[6] The
applicants contend, further, that they were unlawfully removed from
their positions in a council meeting
of 30 September 2020. They
launched the urgent application on 14 October 2020. The Court
dismissed the application relating to
Part A of the relief with costs
on 19 November 2020.
[7] The
first respondent contends that the applicants ought to have realized
at the time they launched the application,
that if Part A of the
relief was not granted, Part B of the relief would be rendered moot
through the passage of time.
[8] The
first respondent points out that when Part A of the relief was
refused on 19 November 2020, the applicants
persisted with the
application for Part B of the relief. They delivered a supplementary
founding affidavit and an amended notice
of motion, which
necessitated the filing of further affidavits.
[9] The
first respondent, to the contention by the applicants that the relief
was
bona fide
and raised a constitutional issue, responds that
in the judgment dismissing the relief sought in Part A, the court
held that the
applicants' conduct is not consistent with a genuinely
held desire to contest the legality of the process. The court,
further,
held that there was undue delay in instituting the
proceedings, which was inherently unfair to the respondents.
[10]
The
purpose of an award of costs is to indemnify the party put through
the expense to institute or defend litigation. Party and
party costs
are costs necessarily and reasonably incurred as assessed by the
taxing master. The question of an award of costs is
within the
judicial discretion of the court. The discretion to be exercised on
reasonable grounds. The general rule is that costs
follow the event,
which means the party who succeeds should be awarded costs. Success
relates to the issue in dispute, and it relates
to substantial
success. Under exceptional circumstances, a successful party may be
deprived of its costs. In rare cases it may
be ordered to pay the
costs of the losing party.
[11] It
must be accepted that the applicants have no control in fixing the
date of the hearing of the application
relating to Part B of the
relief. The applicants on the other hand knew the dates scheduled for
the local government elections.
On the papers and the time frames
agreed contained in Gani AJ's judgment all the parties assumed that
the application relating
to Part B of the relief cold be determined
whilst it could still offer some relief to the applicants, if decided
in their favour.
Therefore, the applicants cannot be blamed for
attempting to pursue the relief sought in Part B of the notice of
motion. There
is no indication that when it became clear that there
would be a delay in hearing part B of the relief there was a delay in
withdrawing
the application.
[12] The
issue whether the applicants were lawfully removed from their
positions as Mayor and Deputy Mayor respectively
was not decided in
the judgment delivered on 19 November 2020. The court faulted the
application in that they delayed in launching
an urgent application
and that they raised no objection when they were removed from their
positions.
[13] The
applicants launched the application within two weeks from date of
their removal from their position. The
reasoning that the applicants
failed to object to their removal, in the manner in which it happened
or did not happen, escapes
me. The fact that the applicants
participated in the meeting where in those that replaced them were
elected is, in my view, irrelevant
in the consideration of whether
the applicants were lawfully removed or not. It is also, in my view,
irrelevant that the applicants
were nominated for the positions they
were holding but lost the vote. In the result, I learn nothing in the
judgment of Gani AJ
delivered on 19 November 2020 for purposes of
deciding the question of costs subsequently incurred.
[14] It
is necessary, if it will not escalate the costs, to consider the
merits of the dispute with a view determine
what would have been the
outcome
(Moshaoane v Moshaoane and Another
1962(2) SA 684 (D)
at 687. The applicants allege unlawful removal from their positions.
In the founding affidavit in the main application
deposed to by the
first applicant makes the following case. The Speaker read the motion
of no confidence to the Speaker, the Deputy
Mayor and the Mayor. She
asked the proposers of the motion to address the meeting relating to
the motion. The proposers addressed
the meeting. The Speaker
indicated that since she was the subject of the motion she had to
recuse herself from chairing the meeting
and she recused herself. The
Municipal Manager took over the chairing of the meeting. He
immediately called for nominations for
the appointment of new
Speaker. There were two nominations of a councilor Ntuli and that of
the Speaker that recused herself. A
vote was taken by a secret
ballot, councilor Ntuli got majority votes, and he was elected a new
Speaker. Ntuli took over the chairing
of the meeting. She called for
nominations for the appointment of a Mayor. The first applicant and
councilor Ngcamphalala were
nominated. A vote was taken by secret
ballot and councilor Ngcamphalala received more votes than the first
applicant and he was
declared appointed to the position of the Mayor.
Nominations for the position of the Deputy Mayor were invited. The
second applicant
and councilor Gina were nominated. A vote was taken
and councilor Gina received more votes than the second applicant and
he was
declared elected Deputy Mayor.
[15] The
first respondent produced the minutes of the meeting in question. The
minutes confirms the version of
the applicants in regarding the
events in the meeting. The minutes confirm that the Speaker recused
herself from the meeting when
a motion of no confidence in her was
dealt with. The minutes show that the meeting did not deal with the
motion of no confidence
in the first applicant as the Mayor. In
addition, the minutes shows that the meeting did not deal with a
motion of no confidence
in the second applicant in his position as
the Deputy Mayor. There is, further, no indication that a motion of
no confidence in
the Speaker after she recused herself was taken by
the meeting to its logical conclusion. In the circumstances, there is
a strong
indication that the applicants would have succeeded in the
relief sought in Part B.
[16] In
my view without prejudging the issue, the first respondent failed to
prima facie
show that the applicants were lawfully removed
from their positions. If the applicants were not removed, it was
improper for the
meeting to embark on electing other persons in their
positions. It matters not that the applicants participated in that
process.
The first respondent is in terms of the law in charge of the
process. It has, when called upon, to show that a lawful process was
followed. It is seized with a public duty to be carried out in a
fair, transparent and accountable manner. In my view, the applicants
have shown the likelihood of success in Part B of the relief.
[17] The
applicants incurred costs as well as the first respondent. In
relation to Part A of the relief, the applicants
were ordered to pay
costs of the application. The matter for one reason or another could
not proceed to finality with regard to
Part B of the relief. No party
can be blamed for the matter not proceeding to finality. The
applicants are public representatives.
It is in the interest of the
public for the first respondent to conduct its affairs in accordance
with the law. It is the public
duty of the applicants to hold the
first respondent accountable. The first respondent ought to have
properly reflected in the manner
the meeting of 30 September 2020 was
conducted in the light of the issues raised by the applicants. The
litigation provided it
with an opportunity to put its house in order.
It was, in my view, not justified to pursue the applicants for the
balance of the
costs.
[18] Rule
41(1) provides that a person instituting proceedings may at any time
before the matter has been set down
withdraw by notice the
proceedings. If in the notice there is no consent to pay costs, the
other party may apply to court. The
application for an order of costs
is adjudicated by the court in terms of the principles that guide the
courts in awarding costs.
However, in this case, there is a question
of costs relating to the withdrawn proceedings as well as costs
relating to the application
in terms of Rule 41(1) (c). The first
respondent instead of delivering of a notice of the intention to ask
for an order of costs
launched a substantial notice of motion
supported by a founding affidavit. It necessitated the filing of an
answering affidavit
followed by a replying affidavit. Parties filed
heads of argument and the matter placed on the opposed roll. This was
not necessary
and the first respondent occasioned it. It must be
taken into consideration against the first respondent in the
consideration of
costs. See
Nel v OVS Staalkonstruksie Algemene
Sweiswerke
1977 (3) SA 993
(0) at 996H.
[19] The
general principle is that the party withdrawing the legal proceedings
is liable for costs of the proceedings
as an unsuccessful litigant
(
Germishuys v Douglas Besproeiingsraad
1973(3) SA 299(NKA).
However, each matter must be considered in its own unique
circumstances. The first respondent by its failure
to conduct the
proceedings in the meeting in accordance with the law caused the
unnecessary litigation. (See
Kent v Bevern & Co
.
1907,
T.S. 395
at 401-402;
Chetty v Louis Joss Motors
1948 (3) SA
329
T at 336;
Chenille Industries v Vorster
1953 (2) SA 691
(0) at 702A). The withdrawal of the legal proceedings by the
applicants due to mootness means success by the first respondent of
a
technical nature. In such a case, in certain circumstances, the court
can deprive the first respondent of its
costs(London Exploration
Cao
Ltd v Cathapadyachy
(1891) 6 HCG 82 referred to in
Herbstein & Van Winsen,
The Civil Pracrice of the High Court
of South Africa
(5
th
ed.) Vol. 2 p968j).
[20] The
applicants have succeeded in their opposition to the application. The
general rule is that costs follow
the result. However, the first
respondent on the face of it, justifiable formed the view that as a
successful party it was entitled
to its costs. In my view, the first
respondent did not consider the real issue raised in the aborted
proceedings, in particular
whether it bore any blame relating to that
issue. It was incumbent on the first respondent before deciding to
embark on an application
for an order to compel the applicants to pay
its unpaid costs of the aborted proceedings to consider the real
issue, which gave
rise to the litigation. There are no reasons to
deviate from the general rule that costs follow the result.
[21] I
order as follows.
1. The application is
dismissed.
2. The first
respondent is ordered to pay costs of the application.
Mngadi,
J
APPEARANCES
Case
Number: 6959/2020P
For
the First Respondent: Toni
Palmer
Instructed
by: Nompumelelo
Hadebe Inc. PIETERMARITZBURG
For
the Applicants: I.
Veerasamy
Instructed
by: Lourens
De Klerk Attorneys PIETERMARITZBURG
Heard
on: 12
August 2021
Judgement
delivered: 27
August 2021
In
Motion Court