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[2018] ZAFSHC 180
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Body Corporate Libray Mansions v Mangaung Metropolitan Municipality (2525/2018) [2018] ZAFSHC 180 (29 November 2018)
REPUBLIC OF SOUTH
AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(FREE
STATE DIVISION, BLOEMFONTEIN)
CASE
NO: 2525/2018
In
the matter between
THE
BODY CORPORTATE LIBRAY MANSIONS APPLICANT
And
MANGAUNG METROPOLITAN
MUNICIPALITY RESPONDENT
HEARD
ON
: 13 SEPTEMBER 2018
JUDGMENT
BY
: CHESIWE , J
DELIVERED
ON:
29 NOVEMEBER 2018
[1]
This matter came as an urgent application for an interim order
requiring the Respondent to re-connect the water supply
to the flats
owned by the Applicant. The Respondent opposed the application.
Background
[2]
The Applicant is the body corporate of Sectional Tittle Scheme known
as Library Mansions. The units were transferred to
the new
owner in 2007. The municipality issued clearance certificates
which confirmed that there were no outstanding rates
and taxes to be
paid. Further transfers of units was done in April 2017 and shortly
thereafter the Respondent sent out accounts
which showed that the
Applicant owed rates and taxes in an amount of R791 604.87.
The Applicant disputed the amount
based on the fact that clearance
certificate were issued to the new owners prior to the sale of
property. The parties had
various meetings and consultations to
resolve the dispute. In 2013 the Applicant received a letter of
demand from the Respondent
claiming an amount of R1 086 303.61.
The Applicant lodged a dispute in this regard. Since the
dispute was
lodged the Respondent did not inform the Applicant of the
outcome of the dispute.
[3]
The Applicant in the meantime made payments to the Respondent, in
spite of the payments the Respondent proceeded to disconnect
the
water supply without any notice to the Applicant.
[4]
The Applicant in the urgent application prayed for the following
order:
“
1.
That the matter be heard on an urgent basis and that condonation be
granted in respect of the non-compliance of the usual forms,
time and
manner of service as prescribed by the Uniform Rules of Court;
2.
That a Rule
Nisi be issued calling upon the Respondent to show cause (if any) on
Thursday 28 June 2018 at 09:30, why a final order
in the following
terms should not be granted.
2.1
That the
Respondent be directed to re-connect the water supply to the
Library Mansions
situated at 55 Charles Street, Bloemfontein, as
soon as practically
possible after receipt of this order;
2.2
That the
Respondent be interdicted from disconnecting the water supply to the
Library Mansions situated at 55 Charles Street, Bloemfontein,
pending
the final resolution of all disputes between the Applicant and the
Respondent regarding the municipal property rates and
water accounts;
2.3
That the
Respondent provide the Applicant with the outcome of the dispute
lodged against the proposed rates and taxes and water
amounts levied
on the accounts of the Applicant within thirty (30) days of this
order;
3.
That the
relief in paragraph 2.1, 2.2 and 2.3 above should serve in the
interim with
immediate effect.
4.
That the costs
of this application shall be paid by the Respondent on a scale as
between Attorney and client scale.”
[5]
On 23 August 2018 the Rule Nisi was extended to 13 September 2018 to
the opposed motion roll.
[6]
On 13 September 2018 the parties informed me that they have discussed
the matter and agreed on certain issues and had a draft
order which
was handed up. Therefore the court only need to determine the
issue of costs.
[7]
Advocate Rautenbach Counsel for the Applicant in oral arguments
submitted that the Applicant had no choice but to approach the
court
for relief, as the Applicant had raised a dispute that the Respondent
failed to respond too. He submitted that the Respondent
had to prove
how the amount was acquired. He said the Applicant approached
court for the relief sought as the Respondent
did not resolve the
dispute and nor did the Respondent give the Applicant the outcome of
the dispute that was lodged by the Applicant.
He
submitted that the Applicant is entitled to costs incurred for
instituting court action against the Respondent, and such costs
to be
on an attorney client scale.
[8]
Advocate Johnson,counsel for the Respondent submitted in oral
argument that the Respondent tendered costs of the Applicant up
to
the opposing affidavit and the Applicant accepted the tender.
He mentioned that the replying affidavit of the application
had a
technical defect, thus the Applicant when approaching court his hands
were also not clean. He said the Applicant incurred
further
unnecessary costs by filling more documents and annexures as a result
thereof the Applicant increased the costs due to
his own conduct.
Counsel submitted that it would be fair and just that each party to
pay their own costs, and the Respondent
to pay costs up to the
opposing affidavit.
[9]
One of the purpose of a costs award to a successful party is to
indemnify him for the expenses to which he had been put through
having been unjustly compelled to either to initiate or to defend
litigation. (See
Payen Components South
Africa Ltd v Bovic Gaskets CC
1999 (2) SA 409
(W) 417 D
)
A cost order is not intended to be compensation for a risk to which
one has been exposed but a refund of expenses actually incurred.
[10]
The guiding principles as set out in
Watken
v Eggelshaw (21) [2002] JLR 1
was
summarized as follows:
(a)
The court’s
overriding objective in considering costs is, as in everything else,
to do justice between the parties;
(b)
In many cases,
that objective will be fulfilled by making an award of costs in
favour of the “winning” party where a
“winner”
is readily apparent. In any event, the “follow event”
rule can still be useful starting
point;
(c)
It is mistake,
however, to strain overmuch to try to label one party as the “winner”
and one the “loser”
when the complexity or other
circumstances of the litigation do not readily lend themselves to
analysis in these terms;
(d)
The discretion
as laid down in art 2 of the Civil Proceedings Law 1956 is a wide one
and ought not to be treated as fettered by
any particular supposed
rule of practice, other than that the discretion should be exercised
judicially and broadly in accordance
with the guiding principles
referred to in AEI Rediffussion Music LTD v Phonographic Performance
LTD
[1999] 1 WLR 1507
;
[1999] 1 ALL ER 299
;
(e)
It is,
accordingly, open to the court to have regard to any and all
considerations that may have any bearing on the overriding objective
of doing justice. It’s task is to take an overview of the
case as a whole;
(f)
It is implicit
in this that, even though a party would otherwise be regarded as
having been “successful” justice may
require that costs
should not automatically follow the event.”
[11]
The Applicant contends that a genuine dispute was raised with the
Respondent. The Respondent failed to resolve the dispute
and
proceeded to disconnect the water supply and thus prompted the
Applicant to approach the Honourable Court on an urgent basis.
[12]
The Respondent avers that the application was technically defective
and thus the Applicant is not entitled to be awarded costs
and that
each party to pay their own costs, alternatively that the Respondent
to pay the costs up to the date of the opposing affidavit
and that
each party pay their own costs thereafter.
[13]
Indeed it is so that the Applicant had to approach the court for a
dispute that the Respondent failed to resolve and this dispute
was
not attended to by the Respondent nor was there any outcome of the
dispute and this prompted the Applicant to continue to file
further
annexures in respect of its application. It is thus fair and
just that the Applicant be awarded with costs
as the Applicant
had addressed several correspondence to the Respondent, but with no
success.
[14]
Section 102 (2) of the Systems Act
requires that a dispute
must relate to a specific amount claimed by the municipality, in
Body
Corporate Croftdene Mail v Ethekwini Municipality
2012 (4) SA 169
SCA at para 22, the court said:
“
The
ratepayer is required to furnish facts that would adequately enable
the Municipality to ascertain or identify the disputed item
or items
and the basis for the ratepayer’s objection thereto. If
an item is properly raised, debt collection and credit
contract
measures could not be implemented in regard to the item because of
the provision of the subsection. But the measures
could be
implemented in respect of the entire amount if an item is not
properly identified and a dispute in relation thereto is
not properly
raised.”
[15]
The Applicant’s dispute was not yet properly identified, and
the Respondent had on its own admission alleged liability
of the
incorrect account of the Applicant. The Respondent in spite of
its own admission proceeded to disconnect the water
supply of the
Library Mansions. The Applicant had no other relief but to
approach the court on an urgent basis to interdict
the Respondent
from disconnection of the water supply to the building.
[16]
A party is liable to pay costs if it incurred costs unnecessarily or
by following the wrong process. (see
De
Villiers v Union Government 1931 206 at 23; Protea Assurance Company
Ltd v Matinisi
1978 (1) Sa 963
(A).
The
Applicant in this instance did not follow the incorrect process.
The Applicant from the beginning of the dispute, even
before the
water supply was discounted has been sending queries of the
accounts to the Respondent and the respondent reacted
by
disconnecting the water supply. As consequence of the Respondent’s
conduct the Applicant approached court for a relief.
[17]
In
Enorfranki
Pipeliner (Pty) Ltd and Another v Mopani District Municipality and
others
[2014] 2 ALL SA 493
SCA
,
the court awarded costs as between Attorney and client in matters
where it was concluded that the “reprehensible nature
of the
conduct of a Municipality warranted such an order.”
[18]
I am of the view that
the Applicant would not have approached the court had the Respondent
resolved the dispute on the alleged accounts,
instead of
disconnecting the water supply while the dispute between the parties
remain unresolved. As correctly stated
in matter of
Enorfranki
Pipeliner
supra,
the conduct of the Respondent warrants a costs order against the
Respondent.
[19]
The Respondent disregarded the stipulation of Section 102 (2) of the
Municipality 32/2000 System Act and proceeded to disconnect
the water
supply. Thus the consequence thereof the Applicant had no other
alternative but to approach the Honourable
Court to interdict
the unlawful disconnection of the water and due to the conduct of the
Respondent the Applicant incurred costs.-
[20]
Accordingly I made the following order:
ORDER
1.
The Respondent is ordered to pay the costs
of the Applicant on a scale as between Attorney and Client.
2.
The draft order marked X and initial by me
is part of the judgement and made an order of court.
_____________
S.
CHESIWE, J
JUDGE OF THE HIGH COURT
FREE STATE DIVISION,
BLOEMFONTEIN
For
the Applicant: Adv. Rautenbach
Instructed
by: McIntyre & Van Der Post Attorneys
BLOEMFONTEIN
On
Behalf of the Applicant: Adv. Johnson
Instructed
by: Phatshoane Henney Attorneys
BLOEMFONTEIN