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[2017] ZAGPPHC 886
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Democratic Alliance v Municipal Demarcation Board and Others (70915/2015) [2017] ZAGPPHC 886 (1 March 2017)
IN THE HIGH COURT OF SOUTH AFRICA
NORTH
GAUTENG, PRETORIA
REPORTABLE:
YES
OF
INTEREST TO OTHER JUDGES: YES
REVISED.
CASE
N0:70915/2015
1/3/2017
In the
matter between:
DEMOCRATIC
ALLIANCE APPLICANT
And
THE
MUNICIPAL DEMARCATION
BOARD 1
st
RESPONDENT
THE
MINISTER OF COOPERATIVE
GOVERNANCE
& TRADITIONAL
AFFAIRS 2
nd
RESPONDENT
MEMBER
OF THE EXECUTIVE COUNCIL FOR
COOPERATIVE
GOVERNANCE, TRADITIONAL
AFFAIRS
& HUMAN SETTLEMENTS,
EASTERN
CAPE
PROVINCE 3
rd
RESPONDENT
MEMBER
OF THE EXECUTIVE COUNCIL FOR
COOPERATIVE
GOVERNANCE, TRADITIONAL
AFFAIRS
& HUMAN SETTLEMENTS,
FREE
STATE
PROVINCE 4th
RESPONDENT
MEMBER
OF THE EXECUTIVE COUNCIL FOR
COOPERATIVE
GOVERNANCE, TRADITIONAL
AFFAIRS
& HUMAN SETTLEMENTS,
KWAZULU-NATAL
PROVINCE 5
th
RESPONDENT
MEMBER
OF THE EXECUTIVE COUNCIL FOR
COOPERATIVE
GOVERNANCE, TRADITIONAL
AFFAIRS
& HUMAN SETTLEMENTS,
LIMPOPO
PROVINCE 6
th
RESPONDENT
MEMBER
OF THE EXECUTIVE COUNCIL FOR
COOPERATIVE
GOVERNANCE, TRADITIONAL
AFFAIRS,
MPUMALANGA
PROVINCE 7
th
RESPONDENT
MEMBER
OF THE EXECUTIVE COUNCIL FOR
COOPERATIVE
GOVERNANCE, TRADITIONAL
AFFAIRS
& HUMAN SETTLEMENTS,
NORTHERN
CAPE
PROVINCE 8
th
RESPONDENT
MEMBER
OF THE EXECUTIVE COUNCIL FOR
LOCAL
GOVERNMENT & HUMAN
SETTLEMENTS,
NORTH WEST
PROVINCE 9
th
RESPONDENT
SOUTH
AFRICAN LOCAL GOVERNMENT
ASSOCIATION 10
th
RESPONDENT
INDEPENDENT
ELECTORAL
COMMISSION 11
th
RESPONDENT
THE
AFFECTED MUNICIPALITIES
LISTEd
in annexure "A"
JUDGMENT
MOLOPA-SETHOSA J
[1]
On 02 September 2015 the applicant launched an urgent application
against the respondents, for interim interdictory relief to
stop the
first respondent as well as the third to ninth respondents from
taking some consequential actions to implement the decisions
of the
first respondent published in various Provincial Gazettes to
determine or re determine municipal boundaries (the impugned
decisions)
[Part
A],
pending the final determination of the relief sought in
Part
B.
[2]
Part
A was heard by my
brother Kollapen J on 26 and 27 October2015. On 06 November 2015 the
application
(Part
A)
was dismissed and the applicant was ordered to pay the costs of the
respondents, including the costs of two counsel in respect
of the
first to the ninth respondent.
[3]
In
Part B
of the
application, which was also brought on an urgent basis, the applicant
sought to review and set aside:
[3.1] Decisions by the first respondent, taken between
29 January and 24 March 2015 to consider the second respondent's
requests
to change several municipal boundaries including the twelfth
to the forty sixth respondent; and
[3.2] The first respondent's final decisions to change
boundaries pursuant to many of the second respondent's requests,
which were
published in the Provincial Gazettes on 25 August 2015,
and on 21 October 2015 in respect of the Camdeboo, Ikwezi and
Baviaans
municipalities.
[4] The
first to ninth respondents opposed the application.
[5]
In paragraphs 30 and 32 of its heads of argument, filed on 04 July
2016, the applicant stated that an effective and practicable
remedy
would be that:
[5.1] The Court must declare that the first respondent's
decisions to consider the second respondent's requests, and its final
decisions
approving boundary changes to the affected municipalities,
[i.e. several Municipalities including the 12th to the 46th
respondents],
to be unlawful.
[5.2] The results of the elections held on 3 August 2016
should stand, and the new Councils formed flowing from those
elections
should continue uninterrupted.
[5.3] That however, following on a finding that the
first respondent's existing decisions were unlawful, the Court should
refer
all cases in which boundary changes were approved, back to the
first respondent for reconsideration.
[5.4] That the reconsideration must be conducted in
accordance with a lawful, reasonable, rational and fair process, in
accordance
with sections 21 and 26 of the Act. In this process the
first respondent must determine whether there is sufficient
justification
for it to consider the boundary changes requested by
the second respondent, and if so, determine afresh whether the
proposed boundary
changes are desirable based on the factors in
sections 24 and 25 of the Demarcation Act, Act 27 of 1998 ("The
Demarcation
Act").
[5.5] And if the first respondent decides that the
proposed changes were not advisable, and did not accord with the
statutory factors
in sections 24 and 25 of the Demarcation Act, then
it must consider whether the boundaries should be changed back to
those which
existed before the August 2016 elections. That the
reversion could practically only take place at the next local
government elections
in 2021.
[6]
Basically after new demarcated Municipalities were formed, the
applicant was of the view that the practical effect of the
amalgamation
affected its representation, hence it sought to
challenge this by way of review.
[7]
The respondents, amongst others, contended that the relief sought by
the applicant was moot and without merit, in that
[7.1] The application for the relief sought had not been
brought within the time periods stipulated in section 7(1) of PAJA.
That
the applicant had provided no basis in its affidavit for
condonation. That therefore the new relief should be dismissed with
costs;
[7.2] The challenge of the Camdeboo amalgamation
decision and the other impugned boundary redeterminations that were
made by the
first respondent was purely of academic interest.
[7.3] The boundaries brought about by the impugned
decisions as well as their attendant consequences became effective
after the
local government elections that took place on 3 August
2016. The applicant accepted the fact that all of the steps to
determine
the number of councilors who would serve on certain
councils and to delimit the inner boundaries of the wards of certain
municipalities,
as a direct consequence of the impugned decisions
have already taken place.
[8]
The applicant's primary focus remained, however, the lawfulness of
the impugned decisions which it called the antecedent decisions
of
the first respondent/Board. The consequential actions such as those
of the third to ninth respondents [MEC's] were only challenged
to the
extent that they flow from, and were dependent for their validity on
the first respondent's antecedent decisions.
[9]
By the time the matter was heard, the local government elections had
come and gone. The applicant had persisted, however, with
its
application for the review of the impugned decisions. It stated in
that regard, as already set out above, that it neither sought
to
frustrate the holding of the elections nor to set aside the results
thereof.
[10]
The applicant contended, relying on such authorities as
Buthelezi
v Minister of Home Affairs
2013 (3) 325 (SCA)
and
Pheko v Ekhuruleni Metropolitan
Municipality
2012 (2)SA 598 (CC) that the
lawfulness of the first respondent's decisions remains a live issue
in these proceeding, and as such
its application is not moot.
[11]
On 24 May 2016 all the parties, the applicant and the first to ninth
respondents' legal teams, met with the Deputy Judge President
("the
DJP") of this division, and preferential dates suitable to all
parties, were agreed upon and were allocated for
the hearing of
Part
B
of the application. The date agreed upon
was the 16th and 17th August 2016.
[12]
The applicant filed its heads of arguments on 04 July 2016, still
persisting with the application. All other parties/respondents
also
filed their heads of arguments in July 2016.
[13]
One day prior to the hearing of the application, more specifically on
12 August 2016, [Friday prior to the Tuesday the matter
was set down
for], the applicant sent a letter to the DJP, and to the respondents
indicating its intention to withdraw the application.
[14]
In the letter aforesaid, dated 12 August 2016 from Minde Schapiro &
Smith, the applicant's attorneys of record, the following
was
communicated to the respondents on behalf of the applicant:
"[1] We refer to the above matter, which is
currently set down for hearing on 16 and 17 August 2016.
[2] Our client has, on a full consideration of the
matter, decided to withdraw its application. The notice of withdrawal
that we
intend to file is attached.
[3] In accordance with rule 41 (1) (a) of the Uniform
Rules, we seek your consent for the withdrawal
-
failing which we shall approach the court for
its leave to withdraw the matter.
[4] You will note that our notice of withdrawal does
not include a tender of costs. This is due to the fact that the
matter is one
which our client was challenging decisions made by
public functionaries exercising statutory duties, and in such cases
an unsuccessful
party ought not to be mulcted with costs (Biowatch
Trust v Registrar, Genetic Resources, and others
2009 (6) SA 232
(CC)
at para 21 to 230.
[5] Should your clients dispute the issue of costs,
they are of course free to set the issue of costs down in due course.
The issue
of costs does not, however, raise any urgent issue which
requires resolution on the preferential dates allocated next week.
"
[15]
In response to the applicant's letter aforesaid, the first
respondent's attorneys, Cheadle Thompson & Haysom INC. Attorneys,
responded by way of letter dated 12 August 2016 in which the
following is stated:
[1] We refer to the above matter and to your earlier
letter indicating your client 's intention to withdraw its
application.
[2] We have considered your letter, and confirm that
we do not grant our consent to the withdrawal of the matter on the
terms proposed,
and have been instructed to seek costs against your
client.
[3] Your client has not provided any explanation for
the late withdrawal of its application in circumstances where:
[3.1] our client opposed the review application on
various grounds, including the basis that your client could not
obtain effective
relief from the court, and that the application was
simply too late in light of the then-upcoming local
government elections which took place on 3 August
2016;
[3.2] despite opposition from the various other
respondents on similar grounds, your client persisted with its
application;
[3.3] at a meeting of the parties with the Deputy
Judge President on 24 May 2016, your client agreed to the
preferential set down
of the matter on dates which clearly fell
beyond the
scheduled local government
elections.
[4] The reason for your client's sudden change of
heart, one court day before the matter is set to proceed is unclear
to us.
[5] In addition to the costs incurred by our client
in opposing and preparing for the matter, you are aware that the
General Council
of the Bar of South Africa's Uniform Rules of
Professional Conduct ("The Uniform Rules ") permit counsel
to charge a
reservation fee where a matter is withdrawn at this late
stage. With one court day remaining before the dates allocated to the
matter, counsel for the various parties are entitled to charge a full
first day fee.
[6] The late notice of your client's intended
withdrawal, and your client's conduct in pursuing this application
after it became
clear that no effective relief was possible, have
consequences which justify a costs order against your client.
[7] In the circumstances, we cannot accede to your
client's request. We confirm that Rule 41(1)(a) of the Uniform Rules
of Court
requires that your client applies for leave of the court to
withdraw its application. We are of the view that the issue of costs
can appropriately be argued as part of your client's application to
withdraw.
[8] We will write to the Deputy Judge President to
confirm our position.
[16]
In response to the applicant's letter aforesaid, the State Attorney,
on behalf of the second to the ninth respondents responded
by way of
a letter dated 12 August 2016 in which the following is stated:
"The above matter refers and your letter dated 12
August 2016 refers.
We have considered your letter and confirm that it is
our client's instructions not to grant or consent to the withdrawal
of the
matter on the proposed terms and that costs should be argued
on Tuesday or on a day to be allocated by the DJP.
"
[17]
As the respondents had not consented to the withdrawal of the
application, the applicant brought an application in terms of
Rule
41(1)(a) for leave to withdraw the application.
[18]
Mr Borgstrom, counsel for the applicant submitted that events have
overtaken the issues; in my view meaning that, as already
stated
above, the applicant has accepted that local government had come and
gone; the boundaries brought about by the impugned
decisions as well
as their attendant consequences became effective after the local
government elections that took place on 3 August
2016; and the
applicant accepted the fact that all of the steps to determine the
number of councilors who would serve on certain
councils and to
delimit the inner boundaries of the wards of certain municipalities,
as a direct consequence of the impugned decisions
have already taken
place.
[19]
He submitted that since the events have overtaken the issues, the
applicant accepts that this is not the case to test the issues.
That
the applicant should not be punished for realizing just prior to the
day of the hearing that this is not the right case to
decide the
issues, hence their withdrawal of the application.
[20]
Counsel for the applicant further submitted that the applicant should
not be ordered to pay the costs of the application since
the matter
involves an issue of constitutional litigation because the
application was brought in the interests of the public. That
the
applicant was challenging decisions made by public functionaries
exercising statutory duties; that in such cases an unsuccessful
party
ought not to be mulcted with costs. That on the principles set out in
Biowatch Trust v Registrar, Genetic Resources
and other
2009 (6) SA 232
(CC) ("Biowatch"),
the court should not order the applicant to pay the costs, even where
the applicant has not been successful
in its application since the
matter involves an issue of constitutional litigation.
[21]
Counsel for the applicant submitted that the court should equate a
situation where the applicant withdraws its application
with a
situation where a party that is challenging decisions made by public
functionaries exercising statutory duties has not been
successful.
[22]
The respondents' respective counsel respectively submitted that the
applicant was unreasonable in not withdrawing the application
much
earlier, waiting for the last minute, just one day before the date of
the hearing. That its conduct was unreasonable and that
the applicant
surely had an opportunity to withdraw much earlier, e.g. once date of
the elections was announced, and/or when the
respondents filed their
heads of arguments in July 2016 raising mootness, as amongst other
things the applicant was not challenging
results of the local
government per se.
[23]
All the respondents respectively submitted that the principles of
Biowatch do not apply in this case where the applicant belatedly
sought to withdraw the application without tendering costs. That this
is not an appropriate case to apply Biowatch; that even if
it were to
be accepted that Biowatch applied, the conduct of the applicant in
seeking to withdraw the application just one day
before the hearing,
after the respondents had already briefed counsel and incurred
massive costs, was unreasonable, and fell within
the exceptions set
out in Biowatch; and that the applicant should be ordered to pay the
costs. The following was stated in Biowatch
supra:
"What the general approach should be in relation to
suits between private parties and the State
[21]
In
Affordable Medicines
this
Court held that as a general rule in constitutional litigation, an
unsuccessful litigant in proceedings against the state ought
not to
be ordered to pay costs. In that matter a body representing medical
practitioners challenged certain aspects of a licensing
scheme
introduced by the government to control the dispensing of medicines.
Ngcobo J said the following:
"The award of costs is a matter which is within the
discretion of the Court considering the issue of costs. It is a
discretion
that must be exercised judicially having regard to all the
relevant considerations. One such consideration is the general rule
in constitutional litigation that an unsuccessful litigant ought not
to be ordered to pay costs. The rationale for this rule is
that an
award of costs might have a chilling effect on the litigants who
might wish to vindicate their constitutional rights. But
this is not
an inflexible rule.
There may be circumstances that justify departure from
this rule such as where the litigation is frivolous or vexatious.
There may be conduct on the part of the
litigant that deserves censure by the Court
which may
influence
the Court to order an unsuccessful litigant to
pay costs.
The
ultimate goal is to do that which is just having regard to the facts
and the circumstances of the case. In
Motsepe
v Commissioner for Inland Revenue
this Court
articulated the rule as follows:
'[O]ne should be cautious m awarding costs against
litigants who seek to enforce their constitutional right against the
State, particularly,
where the constitutionality of the statutory
provision is attacked, lest such orders have an unduly inhibiting or
"chilling"
effect on other potential litigants in this
category. This cautious approach cannot, however, be allowed to
develop into an inflexible
rule so that litigants are induced into
believing that they are free to challenge the constitutionality of
statutory prov1s 1ons
in this Court, no matter how spurious the
grounds for doing so may be or how remote the possibility that this
Court will grant
them access. This can neither be in the interest of
the administration of justice nor fair to those who are forced to
oppose such
attacks."' My
underlining.
[24]
Counsel for the applicant submitted that the applicant's withdrawal
should be equated/likened to a situation where a party
in
constitutional litigation has not been successful and not ordered to
pay the costs.
[25] It
cannot be correct that a situation where a party has not been
successful [after the matter had been argued] can be equated/likened
to a situation where a matter is withdrawn, at the very last minute
for that matter, as in this case. In my considered view the
Biowatch
principles cannot be invoked in this situation. When the preferential
dates were arranged and confirmed with the DJP,
the applicant must
have already known that the impugned decisions would have been
implemented at the time the matter came before
court. In the heads of
argument, filed on 04 July 2016 the applicant stated that "the
results of the elections held on 03
August 2016 should stand, and the
new councils formed flowing from those elections should continue
uninterrupted". It mentions
that the order would not affect the
outcome of the local government elections; that they would not seek
to disturb the status quo.
[26]
For the applicant to only decide at last minute, one day before the
hearing that this is not the case to test the issues as
the events
had already been overtaken, and not even tender costs is unreasonable
in my considered view. From the facts set out
above there was
opportunity to make a decision to withdraw much earlier before the
other parties incurred massive costs in preparation
for this
application. It is in my view unreasonable of DA to expect not to pay
costs in the circumstances herein.
[27]
The parties [the applicant and the respondents' legal teams both
somewhat agreed that the court does not need to deal with
the merits
in deciding the costs.
[28]
In determining the issue of costs it is important to look at the
chronology of events as submitted by the parties. On 24 May
2016 the
date of the local government elections was announced. On the same
date [24 May 2016] the parties met with the DJP and
were given
preferential dates as the matter had been brought on an urgent basis.
The agreed dates for the hearing were 16 and 17
August 2016. At that
stage it was already within the knowledge of the parties, including
the applicant, that by the time the matter
was heard the local
government elections would have taken place.
[29]
On 22 June the applicant filed its supplementary replying affidavit.
It decided to continue with the application as a matter
of principle.
[30]
The local government elections were held on 03 August 2016, and the
results thereof were announced on 05 August 2016. It was
submitted on
behalf of the respondents that the applicant was substantially
successful in the elections aforesaid and yet still
did not withdraw
the application until a day prior to the hearing.
[31]
Counsel for the 2nd_5th, th-9th went as far as submitting that the
application was politically motivated. I must state that
I am not
even going to get into the arena of whether the applicant was
politically motivated or not when it launched this application.
My
focus will be more on the chronology of events and the conduct of the
applicant.
[32]
As already stated, the respondents' counsel respectively submitted
that the applicant should be ordered to pay the costs of
the
respective respondents, that the applicant has not furnished a reason
why it only withdrew its application on the 11th hour,
(1) court day
prior to the hearing of the application, after the respondents had
already incurred costs for the preparation and
for the hearing of the
application, and had already engaged and briefed counsel, including
senior counsel to prepare and argue
the matter.
[33]
At the time the parties met with the DJP and agreed on the dates of
hearing, it was agreed then that the application would
not affect the
then pending municipality elections; further that the outcome of the
application would not affect the outcome of
the local government
election results. Despite this, the applicant persisted with the
application.
[34]
As already stated, only on 12 August 2016, (1) court day prior to the
hearing of the application, did the applicant send communication
[quoted above], to the respondents and to the DJP stating that it was
no longer pursuing the application; that it was withdrawing
the
application. The applicant did not tender costs, and as a result the
respondents replied as stated above that they were not
consenting to
the withdrawal of application; and that if the applicant wanted to
withdraw the application it had to formally bring
an application in
terms or rule 41 (1) (a) for leave of the court to withdraw
application. However, when the parties argued before
court,
especially the respondents, it transpired that the issue pertained
more to the costs not tendered by the applicant.
[35]
The respective counsel for the respondents submitted that the
applicant did not furnish reasons for its withdrawal of the
application; and that the main reason the applicant wanted to
withdraw its application was, amongst other things, because it knows
[as has always been the contention of the respondents] that the
relief sought is moot and will have no practical effect.
[36]
It was the contention of the applicant that the fact that a court
cannot give consequential relief also, does not make the
matter moot.
[37]
It is so that the applicant knew already when the date was arranged
with the
DJP
that the
purpose for which the application was launched would not serve any
purpose since they knew and agreed that by the time
the matter would
be heard the local government elections would have taken place, and
that whatever decision would come out of this
application would not
alter and/or affect the outcome of the elections. The respondents
submitted thus, that at that stage it would
have been reasonable for
the applicant to have withdrawn its application, before the
respondents incurred further unnecessary costs.
[38]
The principles set out in Biowatch pertaining to costs are clear, and
one understands that there is reason, set out in Biowatch,
to the
effect that where an applicant is challenging decisions made by
public functionaries exercising statutory duties; that an
unsuccessful party ought not to be mulcted/visited with costs. Refer
para [21] of Biowatch
supra;
as
well as para [22] in which the following was stated:
"In
Affordable Medicines
the
general rule was applied so as to overturn a costs award that had
been given in the High Court against the applicants, the High
Court
having reasoned in part that the applicants had been largely
unsuccessful and that they had appeared to be in a position
to pay.
Although Ngcobo J m substance rejected the appeal by the medical
practitioners on the merits, he overturned the order on
costs made by
the High Court against them, and held that both in the High Court and
in this Court each party should bear its own
costs. In litigation
between the government and a private party seeking to assert a
constitutional right,
Affordable Medicines
established the principle that ordinarily, if
the government loses, it should pay the costs of the other side, and
if the government
wins, each party should bear its own costs."
[39]
The Biowatch principles cannot and should not, in my considered view,
be invoked in cases where a litigant/applicant acts unreasonably,
like the applicant in this case, that comes at the very last minute,
just one ( 1) court day prior to the day of the hearing of
the
matter; after the respondents have also engaged/briefed counsel,
including senior counsel, to prepare for the hearing of the
matter,
and merely informs the respondents that it intended withdrawing the
application, and never tendering costs.
[40]
It is understandable that under the circumstances, and correctly so,
the respondents would have a gripe with the withdrawal
of the
application by the applicant, mainly because of the fact that the
applicant had not tendered costs; and this is clearly
reflected in
the letters from the respondents' respecting attorneys in response to
the applicant's letter of 12 August 2016.
[41]
From the above and from submissions made in court it is clear that in
principle the respondents were not opposed to the withdrawal
of the
application
per se,
however,
the main contentious issue pertains to costs. There is no reason why
this court should not grant the order in favour of
the withdrawal of
the application. The respondents cannot be faulted for their approach
in circumstances where DA, under the circumstances
did not tender
costs.
[40]
Having considered all the facts and submissions made by the parties,
and under the circumstances set out above, I am of a considered
view
that this is a case where the court should censure the applicant for
approaching the matter so unreasonably, and should order
the
applicant to pay the costs.
[41]
It has to be noted that the costs of all the respondents come out of
the public purse/funds. We are here dealing with the taxpayer's
money. It would be unreasonable and an injustice to the respondents
for this court to, under such unreasonable circumstances, not
order
the applicant to pay costs.
[42]
There is no merit in the submission by the applicant's counsel that
the 6th respondent should not have briefed separate counsel,
that
therefore even if the court were to order the applicant to pay costs,
such costs should not include the costs of the 6th respondent.
Surely
it is the prerogative of all the respective respondents, including
the 6th respondent, through the state attorney, to brief
counsel of
their choice.
[43]
On the whole I have come to the conclusion that costs should be
decided in favour of the respondents.
In the
result I make the following order:
1.
The
application for the withdrawal of the application is granted.
2.
The applicant
is ordered to pay the costs of the first to ninth respondents, which
costs shall include the costs of two counsel
in respect of the first
to ninth respondents.
__________________
L M MOLOPA-SETHOSA
JUDGE OF THE HIGH COURT