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[2017] ZALMPPHC 1
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Limpopo Legal Solutions and Another v Eskom Holdings Limited (1811/2016) [2017] ZALMPPHC 1 (17 February 2017)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN THE HIGH COURT OF
SOUTH AFRICA
(LIMPOPO PROVINCIAL
DIVISION, POLOKWANE)
CASE NO: 1811/2016
Not reportable
Not of interest to
other judges
Revised.
In
the matter between:
LIMPOPO
LEGAL SOLUTIONS
FIRST APPLICANT
MASINGI
MESHACK
SECOND
APPLICANT
and
ESKOM
HOLDINGS LIMITED
RESPONDENT
JUDGMENT
N F KGOMO J
INTRODUCTION
[1]
On the 30 May 2016 the applicants herein caused motion proceedings
herein to be issued
in the urgent Court of this Division in the
following terms:-
1.1.
That this application be heard as one of urgency in terms of Rule 6
(12) of the Uniform Rules
of Court, condoning non-compliance with the
rules relating to service of processes and papers as well as the time
frames set out,
including the 72 hours provision as set out in
Section 35 of the General Law Amendment Act 62 of 1955.
1.2.
That a
Rule nisi
be issued calling upon the Respondent
to show cause, if any, as to why a final order in the following terms
should not be granted:-
1.2.1.
An order directing and/or ordering and/or compelling
the Respondent
to forthwith and/or here and now (sic) dispatch a team of specialists
or technicians to Section C along Magumuza
Store road towards the
Full Gospel church next to Tlhavane & Baloyi family home or house
number 4[...]; to repair and/or fix
and/or replace the exposed,
damaged (or) low hanging power or electricity cable in order to
ensure the safety of vulnerable children,
motorists or affected (sic)
residents of Section C, Malamulele;
1.2.2.
Costs of the application to be paid by the Respondent,
including any
Respondent who may elect to oppose this application; and
1.2.3.
Directing that prayers 1.2.1. and 1.2.2. operate
as a
Rule nisi
with immediate effect and returnable on the 28 June 2016 at
10H00
.
[2]
The application was moved on 31 May 2016 and an interim order was
later extended to
02 August 2016.
[3]
The application is opposed, with the respondent seeking an order
dismissing same with
costs on a scale as between attorneys and client
payable by members of the 1
st
applicant, specifically
excluding the second applicant from such a costs order.
[4]
On 28 June 2016 the
rule nisi
was extended to 02 August
2016. The application was postponed to that date. The respondent
filed its answering affidavit on 29
July 2016.
[5]
On 2 August 2016 the
rule nisi
was extended to 10
October 2016.
On 10 October 2016 the
application was postponed
sine die
with costs being
awarded against the applicant. The
rule nisi
was
extended until the day it is confirmed or discharged.
History of the matter
[6]
It is common cause between the parties that the respondent received a
telephone call
or complaint on 29 May 2016 notifying them of a
low-hanging electricity cable. The same day, the respondent sent out
a technician
to the site to investigate. According to the respondent,
the technician established that although the cable was hanging lower
than
how and where it ought to have hung normally, it was
nevertheless hanging high enough not to be within reach by cars and
people
passing by underneath. Furthermore, it was isolated with a
plastic cover.
[7]
These allegations were not gainsaid by the applicants. The location
and hang height
of this particular electricity cable can be clearly
seen in a photo at folio 44 of the paginated record of proceedings
herein marked
Annexure
LL5 “4”.
One can clearly
see that it is even hanging higher than the houses nearby.
[8]
On 30 May 2016 the respondent sent a team of workers to the site and
the latter embarked
on dealing with the cause of the complaint. The
respondents employee also forwarded a whatsup message resplendent
with pictures
of workers busy on the cable as proof that the cable
was in the process of being repaired.
[9]
The same day, i.e 30 May 2016 the applicants served notice of motion
on the respondent
in the terms set out above. The respondent stated
that the service was made on them around 11h30 on 30 May 2016.
However, the time
of appearance at court was 17h30 the same day.
[10]. The
member of first applicant to whom all the photos and intimations that
the matter was being attended
to is the self-same counsel
representing and arguing this application on behalf of the
applicants, Adv Maluleke.
[11]
From the respondent’s answering affidavit it emerged that by
the time Adv. Maluleke was
still waiting for the papers to be issued
in this court on 30 May 2016, the respondent’s employee called
him on his cellphone
and made him aware of the fact that Eskom was
addressing the complaint regarding that low-hanging electric cable
and also urged
him not to issue the court papers as a result.
[12]
When respondent’s employee, who was incidentally the deponent
of the respondent’s
answering affidavit, Refilwe Mhlwatika,
phoned Adv. Maluleke again to verify whether he heeded her advice not
to issue the papers,
his phone was off. She sent him an e-mail
confirming that the complaint was being attended to in the following
terms:-
“
Good
day
This
is to confirm a telephonic conversation on Monday the 30
th
of May at 16h40 the writer herein and Mr Maluleke-Malwashe in
relation to the notice of motion that was served on Eskom at
the
Malamulele office.
Kindly
note that I have been informed by our technicians that they are
currently on site working on the electricity cable with the
intention
of preparing (sic) them. My instructions are that the technicians
have already commenced with repairs, they are in the
process of
ensuring the put up underground(sic) at the site to ensure the safety
of the public (sic) (my emphasis). The head of
office has also
confirmed that he is also on site facilitating and ensuring that the
repairs will be completed today.
Please note that I
attempted to call you prior to me sending the e-mail to confirm the
above, but was unsuccessful in getting through
to your mobile number.
I can be contacted on
0[...]
Regards
Refilwe Mhlwatika.
[13]
This e-mail was received by the applicant’s counsel, Adv
Maluleke, at 17h03 on 30 May 2016 and
is marked Annexure E.54 at
paginated folio 99 herein.
[14]
A whatsup message was also sent to Adv Maluleke at 17h11 the same day
confirming the successful
transmission of the above message as well
as the sending and receipt of photos showing work in progress at the
site.
[15]
The question to be answered is whether or not the applicants were
justified in moving this application
before the Judge President of
this Court on the 31 May 2016 as well as whether the Judge President
would have granted the interim
order as prayed for had he been
informed of all the above circumstances and facts.
[16]
It was submitted on behalf of the respondent that-
16.1.
the applicants misled this Court when the
application was moved
because they were not honest about the urgency of the matter and also
did not disclose to the Honourable
Court the fact that the respondent
was busy repairing the electricity line in question already the day
before the orders were sought
in Court.
16.2.
the first applicant have no
locus standi
to bring this
application.
16.3.
the applicant’s reliance upon the
Constitution and the
Bill of Rights is misplaced and an abuse of court process.
16.4.
the respondent had discharged its obligation
of ensuring public
safety before this application was moved in Court on 31 May 2016 as
the electricity cable had by then been repaired
by 30 May 2016.
Standard approach of
determining this application
[17]
In terms of the so-called Plascon –Evans test this application
should be decided by relying
on the respondent’s version of
events as well as those aspects of the applicant’s version that
are admitted by the
respondents.
[1]
The rationale for this approach is found in the principle that, in
motion proceedings, the court is not equipped to determine the
probabilities or improbabilities of the opposing factual propositions
expressed by the parties.
[2]
Urgency
[18]
The applicants deliberately withheld vital information which would
most probably have resulted
in the interim order not being granted on
31 May 2016. Mr Maluleke did not inform the Honourable Court on 31
May 2016 when he moved
the application that the respondent’s
technicians and/or employees started correcting the situation on 30
May 2016 and that
by that time (of argument) the cable ought to have
been repaired. After all, he also had photographs of the work-in
progress. He
did not disclose this information to the Honourable
Judge President.
[19]
The above aspect will have a big impact on the issue of costs at the
end, as it also affects
the aspect of urgency.
[20]
Prayer 3.1. of the Notice of Motion, which is in actual fact the main
and only relevant prayer-not
discounting the costs order of
course-seeks or sought an order directing and/or compelling the
respondent to-
“…
.forthwith
and/or here and now, dispatch a team of specialists or technicians to
section C… to repair and/or fix and/or replace
the exposed,
damaged low-hanging power or electric cable…
[21]
That was on 30 May 2016. The respondent promptly sent out a
technician, Mr Maswanganye, who established
that although the cable
was low-hanging, it nevertheless was no danger to cars and people or
children as it was still high enough
to constitute that danger.
[22]
The above regardless, the first applicant’s member and counsel
at Court still went ahead
on 31 May 2016 and moved the application.
[23]
That in my considered view and finding is the utmost dishonesty. It
deserves proper punishment
by an appropriate order of costs. What the
application was seeking had been complied with. So what next!. That
ought to have been
the end of the matter. The applicants should have
withdrawn their application from the roll. Surely there would not
have been the
issue of costs at that stage. They chose not to but to
persist with the argument hereof some 8(eight) months down the line.
They
chose to do so. Equally, they should live with the consequences
of their actions.
[24]
The application herein is for an urgent relief which the applicants
applied for in the form of
a mandatory interdict which was to operate
as an interim interdict. However, in effect, the relief sought here
is a final one.
[25]
The requirements for a mandamus were stated in
Kaputuaza
and Another v Executive Committee of the Administration for the
Hereros
and Others
[3]
where the court held among others that:-
“
For
such an order all the requirements of an interdict have to be
established and the court will have to decide,
inter
alia,
whether
the applicants have established a “clear right”.
(
Lipschitz
v Wattrus NO.
[4]
[26]
This means that the applicant herein must establish the requirements
for a final interdict to
be successful.
[27]
The object of a mandamus-
“…
is
to compel an administrative organ to perform some or other statutory
duty. The remedy is somewhat limited because the administration
cannot be compelled to do anything it is not obliged to do under the
enabling statute.”
[5]
[28]
Section 38 of the Constitution of the Republic of South Africa
(“
the
Constitution
”)
[6]
provides as follows:-
“
38.
Enforcement of rights.
Anyone listed in this
section has the right to approach a competent court, alleging that a
right in the Bill of Rights has been
infringed or threatened, and a
Court may grant appropriate relief, including a declaration of
rights. The persons who may approach
a Court are:-
a.
Anyone acting in their own interest,
b.
Anyone acting on behalf of another
person who cannot act in their own name,
c.
Anyone acting as a member of, or in
the interests of , a group or class of persons,
d.
Anyone acting in the public
interest, and
e.
Association acting in the interests
of its members.
[29]
It is not a requirement that a constitutional right should have been
actually violated. All that
needs to be shown is that a right is
under threat, and that there is therefore a reasonable probability of
an infringement of that
right.
[7]
[30]
A right is said to have been infringed or threatened if the conduct
is objectively, inconsistent
with a right contained in the Bill of
Rights.
[8]
[31]
There is no evidence in this application justifying the issuing and
moving in Court of this application
as the rationale or reason for
doing so had fallen away.
Eiusdem generis
one can even say
this situation is akin to what is envisaged in the legal maxim:
“
Cessante rationale legis cesat et ipsa lex”.
[32]
For a mandatory interdict to be granted the applicant must prove:-
32.1.
a clear right
32.2.
an injury actually committed or reasonably apprehended, and
32.3.
the absence of similar protection by any other ordinary remedy.
[33]
To determine whether the applicant has a clear right is a matter of
substantive law and whether
the right is clear is a matter of
evidence. The applicant has to prove on a balance of probabilities,
where necessary and required,
facts which in terms of substantive law
establish the right relied upon.
[9]
[34]
The respondent has challenged the applicant’s claim to a clear
right to institute these
proceedings. Correctly so, because when they
were moved in Court, there was no longer a need to do so.
[35]
In order to satisfy the second requirement for the grant of a final
interdict the applicant must
prove, on a balance of probabilities
that an infringement of a right has occurred or is reasonably
apprehended. It must also prove
a possible or resultant prejudice or
potential prejudice.
[10]
[36]
The Court may grant such a sought interdict if the applicant proves
or shows failure on the part
of the respondent to act, viewed
objectively. It should also prove that the respondent failed to act
and that its failure constituted
a dereliction of a statutory duty
which infringes or threatens to infringe on the rights of the
applicants or the general populace.
[37]
In casu
, such a situation never arose. The respondent
proceeded to address the cause of the complaint forthwith. It did so
before the application
was moved in court on 31 May 2016. Counsel for
the applicant knew about this when he appeared before the Judge
President and moved
the application or caused same to be moved.
[38]
As to the requirement of the above of an alternative or another
adequate, ordinary, or reasonable
legal remedy capable of affording
similar protection, in the context of this application, the
applicants should have, in addition
to speaking to the Eskom Vhembe
or Malamulele office, first exhausted the mechanisms for fault
reporting and verification whether
the complaint was being attended
to before rushing to Court. Litigation in these circumstances should
have been a last resort.
[11]
[39]
Even when counsel for the applicant was already at Court in Polokwane
on 30 May 2016, after receiving
respondents’ employee’s
assurances that the complaint was being attended to he should have
asked a local from his institution
to verify the information.
Furthermore, after receiving the Whatsup photographs, from the
respondents employee on 30 May
2016, the applicants should not
have proceeded to move the application in Court on 31 May 2016.
[40]
I agree with
Lamminga AJ
when she stated the following in the
case where
Limpopo Legal Solutions, Maluleke Tintswalo Sannie,
Chavane Sindile and Maponya Matodzi Sarah
are Applicants and
Vhembe District Municipality
,
Thulamela Municipality are
respondents,
Case No.
430/2016
delivered in the High
Court, Thohoyandou on 2 June 2016, where the following was
stated:-
“
[27]
Institutions such as the First Respondent, burdened with service
delivery in persuit of ensuring basic services in compliance
with the
Bill of Rights, inevitably have to put mechanisms, processes and
procedures in place
inter alia
of how breakdowns in service delivery are reported and resolved
within the framework of the administration of such a body. To by-pass
the basic requirement of informing the authority of a breakdown in
service and approaching the Court immediately creates various
challenges and disregards the provisions of section 5(2)of the
Local
Government Municipal Systems Act 32 of 2000
. It further places the
Courts in a very precarious administration and would fly in the face
of the principle of judicial economy.
If every breakdown in service
could be addressed by urgent litigation, the courts would be
inundated and the effective management
of the administration of the
municipality would be undermined for the prejudice of the
administration of justice and service delivery
to the community.”
[41]
Section 5(2)
of the
Local Government Municipal Systems Act reads
as
follows:
“
5.2
Members of the local community have a duty-
(a)
When exercising
their rights, to observe the mechanisms, processes and procedures of
the municipality.”
[42]
The above applies equally to the respondent, Eskom, as it, as a State
owned entity, is in a similar
position in status with a municipality
or a government department.
[43]
From the totality of the circumstances herein this Court is satisfied
and finds that the applicant
acted prematurely when, armed with
information that the respondent was doing exactly what they
(applicants) sought in the papers,
proceeded to issue the urgent
application. If the respondent had ignored the applicants’
complaint, then they would have
been justified to approach this court
on an urgent basis. Unfortunately, the respondent did not ignore the
complaint. As a consequence,
the applicants’ conduct to move
the application on 31 May 2016 was not only irrational, ill-thought,
capricious and/or super
flours, but also irresponsible and an abuse
of court process. Such conduct is punishable with an appropriate
order of costs. There
was thus no urgency at that stage.
Proceedings
against organs of State in Urgent Court
[44]
The circumstances under which this application was launched and the
papers served call for something
to be said about the Rules relating
to the issue against and service of proceedings on organs of State
and State owned enterprises.
[45]
Wepener
J
dealt with this aspect in
In
re: Several matters on the urgent court roll of 18 September 2012
[12]
where
among others the following appears:
[13]
“
There
are also matters brought against government department or department
of State. Experience has taught that such respondents
need time to
look into allegations made in order to be able to file affidavits, if
they wish so. When these affidavits are filed,
the matters can be
seen in a proper perspective. Attempts to disallow them to file
affidavits are usually based on the judgment
in
Arse
v Minister of Home Affairs and Others 2012(4)SA 544 (SCA)
[also
reported at
[2000] 3 ALL SA 261
(SCA),
where it was said at
paragraph 10 that a detained person should not be deprived of his or
her right to freedom for one second longer
than necessary….”
[17] An abuse of the
process has developed (in all likelihood with a hope that the
respondents would not be able to file opposing
affidavits in time) in
order to steal a match upon such respondents. This practice must be
addressed in order to stop matters being
unnecessarily enrolled and
to clog a busy urgent court roll. In these matters, sufficient time
should be granted to the respondents
to file affidavits and they can
rarely do so when papers are served less than a week before the
matter is to be heared. That week
includes a weekend when state
machinery normally comes to a standstill. Practitioners will be well
advised to be more realistic
and to afford the state departments a
more reasonable time to file affidavits. No doubt, these are matters
which require urgent
attention on shorter notice…”
[46]
The applicants herein are guilty of not allowing sufficient time to
the respondents to do the
necessary. Service of urgent applications
at 11h30 calling upon the respondents to respond and file their
papers by 17h30 the same
day as well as be in Court is an abuse of
Court process especially when regard is had to the peculiar
circumstances in this application.
Conclusion
[47]
When all is considered in this application, there was no failure on
the part of the respondent
to perform an act or duty imbued on it in
terms of a statute or the common law or the Constitution and Bill of
Right. On the contrary,
the respondents promptly did what the
applicants prayed for in the notice of Motion well before the
application was moved in Court.
The applicants knew this fact before
they embarked on the then futile exercise. This application should
not have been issued in
the first place.
[48]
This application stands to be dismissed with costs. The question is,
what scale of costs.
[49]
The going ahead with a futile and academic exercise of issuing and
moving this application stands
to be punished with a punitive order
of costs.
[50]
Counsel for the respondent asked for an order of costs on a scale as
between attorney and client
payable by the first applicant and its
members jointly and severally, specifically excluding the second
applicant from its ambit
as the latter was ostensibly a pawn in the
scheme of things.
[51]
The awarding of costs is a matter within the discretion of the trial
court.
[14]
It is a discretion
the Court must exercise judiciously and reasonably.
[15]
[52]
During the exercise of that discretion, when a costs order is
assessed or determined, the Court
in
Fripp
v Gibbon
[16]
held
among others that in leaving the presiding officers with the
discretion-
“…
.the
law contemplates that he should take into consideration the
circumstances of each case, carefully weighing the various issues
in
the case, the conduct of the parties and any other circumstance which
may have a bearing upon the question of costs and
then make
such order as to costs as would be fair and just between the parties.
And if he does this, and brings an unbiased judgment
to bear upon the
matter and does not act capriciously or upon a wrong principle. I
know of no right on the part of a court
of appeal to interfere with
the honest exercise of his discretion.”
[17]
[53]
The Court may, when circumstances so dictate, even make an order of
costs in favour of a successful
party. Where the conduct of a
plaintiff or applicant is wholly responsible for the case in question
being heard in Court under
circumstances as in this case where it was
unnecessary, such initiates of proceedings should be ordered to pay
the costs.
[18]
[54]
Where a court is satisfied, as in this application, that a party has
made itself guilty of improper,
dishonest or discreditable conduct,
it will mark its displeasure and disapproval by granting a punitive
costs order against such
party.
[55]
The applicant’s censorable behavior or conduct was excercabated
by the applicant’s
member moving for the interim order on the
31 May 2016 when he well knew that the conduct or aspect complained
about has been rectified.
It deserves an order of costs on a scale as
between attorney and client.
ORDER
[56]
The following order is made:
56.1
The
rule nisi
issued on 31 May 2016 is discharged.
56.2. The
application is dismissed with costs on a scale as between attorney
and client.
N F KGOMO J
JUDGE OF THE HIGH
COURT OF SOUTH AFRICA
LIMPOPO PROVINCIAL
DIVISION, POLOKWANE
Appearances
1.
For the applicants:
Adv
TK Maluleke
2.
Instructed by:
BM
Mudzulu Attorneys
AL
Smit Building, Polokwane
3.
Telephone number:
015 291
2235
4.
For the respondents:
Adv
PL Uys
5.
Instructed by:
Geldenhuys
Malatji Inc.
c/o
PW Becker Inc.
Polokwane
6.
Telephone Number:
015 291 1819
7.
Date of Argument:
13 February 2017
8.Date
of Judgment:
17 February 2017
[1]
[2]
National Director of Public Prosecutions v Zuma ( Mbeki and
Another intervencing) 2009(2) All SA 243
(SCA)
at para[26].
[3]
1984(4)
SA 295(SWA)
[4]
1980(1) SA 662 (T) at 673-C-D.
[5]
Burns
& Beukes: Administrative Law under the 1996 Constitution, 3
rd
Edition, Lexis Nexis, at P.525.
[6]
Act
108 of 1996.
[7]
Geuking
v President of the Republic of South Africa 2003(3) SA 34 (CC) at
para [32] to [34].
[8]
Ferreira
v Levin NO and Others, Vryenhoek and Others v Powell no and others
1996(1) SA 984 (CC).
[9]
Diepsloot
Residents & Landowners Association v Administrator , Tvl 1993(3)
SA 49(T)
[10]
V
& A Waterfront Properties (Pty) Ltd v Helicopter & Marine
Services (Pty) Ltd 2006(1) SA 1 252(SCA);
Capital
Estate and General Agencies (Pty) Ltd v Holiday Inn 1977(2) SA 916
(A).
[11]
Chapman’s
Peak Hotel (Pty) Ltd v Jab and Annalene Restaurants CC t/a O’Hagans
[2001] 4 ALL SA
415(c).
[12]
[13]
At
pages 574 para.[16] and [17].
[14]
Fripp
v Gibbon & Co
1913 AD 354
; Mouton v Die Mynworkersunie 1977(1)
SA 119(A) at 149 A-B;
Lornadawn
Investments (Pty) Ltd v Minister van Landbou 1980(2) SA 1 (A) at 14
C-D.
[15]
Merber
v Merber 1948(1) SA 446 (A) at 453; Smit v Bruwe 1971(4) SA 164(C).
[16]
Supra
[17]
See
also Erasmus v Grunow en ‘n ander1980 (2) SA 793(0) at 977
A-H.
[18]
Bester
v Van Niekerk 1960(2) SA 363 (E).