About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2017
>>
[2017] ZAFSHC 134
|
|
Erasmus and Another v Minister of Defence and Others (1234/2017) [2017] ZAFSHC 134; [2017] 4 All SA 434 (FB) (24 August 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,
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable:
YES
Of
Interest to other Judges: YES
Circulate
to Magistrates: NO
Case
number: 1234/2017
In
the matter between:
MAJOR
PETER
ERASMUS
First Applicant
[Persol
number:
[9...]
]
MAJOR
SARAH REGINA MLAMBO
Second
Applicant
[Persol
number:
[9...]
]
and
THE
MINISTER OF DEFENCE
First Respondent
CHIEF
OF THE SOUTH AFRICAN AIR FORCE
Second Respondent
ACTING
CHIEF HUMAN RELATIONS:
AIR
FORCE
Third
Respondent
COLONEL
MP KHOASE – OFFICER
COMMANDING,
AFB BLOEMSPRUIT
Fourth Respondent
LIEUTENANT
COLONEL THABO MOTAUNG
Fifth Respondent
LIEUTENANT
COLONEL R BUYS
Sixth
Respondent
HEARD
ON:
22 JUNE 2017
JUDGMENT
BY:
DAFFUE, J
DELIVERED
ON:
24 AUGUST 2017
I.
INTRODUCTION:
[1]
Two members of the South African Air Force (“Air Force”)
with the rank of major on the one hand and the Minister
of Defence
and senior officers on the other are at
loggerheads.
The relief sought is uncommon and to my knowledge unheard of in the
civil courts. It is therefore no surprise
that the parties’
legal representatives could not refer the court to appropriate
authorities.
II.
THE PARTIES:
[2]
First applicant is Peter Erasmus, a major male person and member of
the Air Force, a branch of the South African National Defence
Force
(“SANDF”), with the rank of major. He is resident
in the Bob Rogers Park, Bloemspruit, Free State Province.
[3]
Second applicant is Sarah Reginah Mlambo, a major female person and
member of the Air Force with the rank of major. She
is also
resident in Bob Rogers Park, Bloemspruit, Free State Province.
[4]
First respondent is the Minister of Defence of the SANDF.
[5]
Second respondent is the Chief of the Air Force, cited in his
capacity as the responsible functionary in terms of s 4A(c) of
the
Defence Act, 42 of 2002, (“the
Defence Act&rdquo
;).
[6]
Third respondent is the Acting Chief Human Relations: Air
Force, Col Mama.
[7]
Fourth respondent is Colonel MP Khoase, the Officer Commanding of the
Air Force Base, Bloemspruit.
[8]
Fifth respondent is Lieutenant Colonel Thabo Motaung, Officer
Commanding, 506 Squadron, Bloemspruit Air Force Base (“AFB”),
Bloemfontein.
[9]
Sixth respondent is Lieutenant Colonel R Buys, the second Officer
Commanding, AFB Bloemspruit.
[10]
Applicants were represented by Adv PR Cronje, duly instructed by
Fixane Attorneys, whilst respondents were represented by Advv
PJJ
Zietsman and Naidoo, duly instructed by the State Attorney,
Bloemfontein.
III.
THE RELIEF SOUGHT AND OBTAINED THUS FAR
[11]
On 10 March 2017 applicants approached the court for urgent
interim
relief pending the return date of the
rule nisi
issued.
Jordaan ADJP granted the following orders which I quote
verbatim
(the first four paragraphs pertaining to condonation and service
of process are not repeated):
“
5
.
A
rule
nisi
is issued wherein the respondents are called upon to show cause, if
any, on
20
APRIL 2017
why the relief in paragraph 6.1 to 6.6 should not be made final.
6.
The fourth respondent is:
6.1
Ordered to reconnect the water and electricity supply to
No.
4 Alouette Avenue, Bob Rogers Park, Bloemspruit, and Unit 11B,
Viscount Avenue, Bob Rogers Park, Bloemspruit, Bloemfontein
within 1 (one) hour after receiving notice of the order.
6.2
Ordered to remove the photographs of the first and second applicants
from the entrance gate
to the Air Force Base within 1 (one) hour
after receiving notice of the order.
6.3
Interdicted from restricting the access of the applicants to the
Bloemspruit Air Force Base.
6.4
Ordered to ensure that the applicants’ names appear on the
row-call book not stating
their status as AWOL and to ensure that
they receive their salaries.
6.5
Interdicted from displaying or taking any action which impedes the
applicant’s rights
to fair labour practices pending the
finalisation of the process which were commenced regarding the
instructions to report at other
bases.
6.6
The fourth respondent is to pay the costs of the application unless
any other respondent
opposes the application, in which event the
respondent/s so opposing shall pay the costs of the application and
the second respondent
shall pay jointly and severally with the fourth
respondent.
7.
Pending the return date stated above, the relief set out in paragraph
6.1 serves
as interim relief with immediate effect.”
IV.
ISSUES NOT IN DISPUTE, ALTERNATIVELY PROBABLY CORRECT
[12]
Respondents conceded in their answering affidavits that applicants
should have obtained the relief contained in
paragraph
6.1 read with paragraph 7
supra
and that a final order in that regard may be granted.
[13]
It is also not in dispute that photographs of applicants were placed
at the entrance gate of the AFB, Bloemspruit and that
their access to
the base was restricted. Respondents deny that any rights of
applicants have been infringed in the process
and state that it was
necessary to post the pictures to assist the guards to prevent
applicants from entering the base.
[14]
Both applicants received written transfer instructions, issued in
December 2016, in terms whereof they had to report for duty
at
Bredasdorp and Pretoria respectively.
[15]
Individual Grievances Regulations have been promulgated in the
Government Gazette of 14 October 2016 in terms of the
Defence Act.
Applicants
did not follow the applicable grievance procedure.
[16]
The Air Force has adopted a Career Management Policy. It
inter
alia
provides that members shall not serve longer than four years in a
post on the establishment of the Air Force or at a Division.
First applicant has been stationed at the AFB, Bloemspruit since 2009
and in 2013 a process was started to discuss his possible
geographical transfer. In 2014 first applicant expressed
concerns about a possible transfer, but on 21 September 2016 he
was
informed that his transfer to Bredasdorp will be recommended.
During an Officers Succession Planning Board meeting of
14 November
2016 it was agreed that he be transferred and consequently, a signal
was issued on 19 December 2016. When first
applicant
complained, (not in accordance with the grievance procedure) the
matter was elevated to several senior officers and Brigadier
General
More, the Director: Operational Support and Intelligence Systems
remarked that first applicant had to report at his new
post.
[17]
Second applicant was appointed as officer at AFB, Bloemspruit in
2009. No succession planning took place in 2015 and
she was
allowed to remain at the base; thereby she became stagnant concerning
her career. In September 2016 she was
notified of the
intention to move her to Pretoria, although no formal career planning
session was held with her. She expressed
her unhappiness and
the matter was elevated to higher authority. Several senior
officers considered the issue, but eventually
Brigadier General
Malakoane stated that
“
Comments
noted but instructions comes
(sic)
from
Higher Authority. Situation beyond DSS’s control.”
It
must also be noted that second applicant’s post was allocated
to DSS, Air Command, Pretoria according to respondents and
therefore,
she was merely carried against the same post of DSS, Air Command, but
utilised at AFB, Bloemspruit. Second applicant
could not really
deny this version in reply.
V.
THE ISSUES
[18]
First applicant is dissatisfied with the instructions contained in a
transfer document, referred to as a signal, dated 19 December
2016 in
terms whereof he was transferred to the AFB, Bredasdorp, this being a
lateral and geographical transfer without any promotion.
[19]
Second applicant is dissatisfied with her transfer instructions
received by way of signal dated 4 January 2017 in terms whereof
she
was transferred to Pretoria.
[20]
In terms of the signals both applicants’ transfers had to take
place on 1 March 2017. They failed to adhere to
the
instructions and are still residents in Bloemfontein at the
residential premises mentioned
supra.
As
mentioned, they approached the court on an urgent basis and obtained
interim
relief on 10 March 2017.
[21]
Both applicants entered into correspondence with senior officers
wherein they aired their dissatisfaction with their transfers.
I
shall deal with this in more detail
infra
when
the evidence is evaluated.
[22]
It is applicants’ case that transfer instructions were issued
without considering their personal circumstances.
Although they
have not cleared out at the AFB, Bloemspruit, they are not allowed
access to the base to
inter
alia
report
for duty. Roll-call (not “row-call” as stated in
the application papers) is kept and their non-attendance
may lead to
them being recorded as AWOL (absent without leave) and
the eventual non-payment of their salaries.
[23]
It is respondents’ case that applicants are part of a
structured military environment where discipline and hierarchy
are
essential aspects; therefore applicants cannot flout lawful
instructions pertaining to their transfers and they have no authority
to be at the AFB, Bloemspruit anymore. As from the 1
st
of March 2017 they are not regarded as part of the personnel of this
base, and consequently, their presence at the AFB, Bloemspruit
would
be unlawful and equivalent to trespassing. Therefore, the
interdictory relief sought is contrary to the
Defence Act, the
Air
Force’s Career Management Policy and the Military Disciplinary
Code.
[24]
Respondents rely on a circular by the GOC Air Command: Major General
Mbambo dated 20 February 2014 pertaining to the growing
tendency of
members to refuse transfers and report to their new posts.
Members’ attention was drawn to
s 50(5)(b)
of the
Defence Act
and
that refusal to accept transfers and to report at their new posts
is a contravention of the
Defence Act. Members
were finally
warned as follows:
“
Any
member affected by the transfer must still report to his/her new unit
whilst the process to address his/her grievance takes
its course.”
VI.
LEGAL PRINCIPLES
[25]
Section 2 of the Labour Relations Act, 66 of 1995 (“the LRA”)
provides that the LRA does not apply to members of
the SANDF.
[26]
The Defence Act, 44 of 1957, (“the Old Act”) has been
repealed by the Defence Act of 2002 (“the
Defence Act&rdquo
;)
with the exception of Chapter XI thereof pertaining to the Military
Disciplinary Code and military courts as well as the First
Schedule
thereto. The jurisdiction of military courts in respect of
offences under the Military Disciplinary Code by a person
to whom the
Code applies is confirmed in s 108 of the Old Act.
[27]
The
Defence Act defines
“
conditions
of service”
in
s 1
thereof to include conditions relating to
“
(d)
salaries, allowances and service benefits, …. (f) working
environment and facilities, …..(j)
transfers, … (m)
grievance and grievance procedures, …. (s) accommodation and
(t) any other matter pertaining to
conditions of service.”
[28]
Section 61
of the
Defence Act deals
with the procedures for redress
of grievances. A grievance by any person to whom the Act
applies and is aggrieved by any
act or omission of any other person
to whom the Act applies may lodge his/her grievance in writing in
accordance with the procedures
to be prescribed by the Minister of
Defence. These procedures must specify the expeditious
processing of grievances and the
chain of command through which
individuals and groups within the Department may address individual
and collective grievances.
Although the word
“
may”
is
used in s 61(1), the provision is in essence peremptory.
[29]
Individual Grievances Regulations (“the Regulations”)
have been promulgated in Government Gazette 40347 dated 14
October
2016. It is apparent from the wording of the regulations that a
grievance must be lodged (see regulation 6) and this
can only relate
to a written grievance. I am satisfied that a member of the
SANDF aggrieved by any aspect pertaining to his/her
conditions of
service – transfer included - is bound to utilise the
promulgated grievance procedure.
[30]
Regulation 17 of the Regulations reads as follows:
“
Exhaustion
of internal remedies. A member or employee may only seek an
external remedy to address a grievance once he/she
has exhausted all
his or her internal remedies in the Department, or if the Secretary
for Defence or the Chief for the Defence
Force has failed to act
within the 10 working days, contemplated in regulation 5 (e).”
[31]
Respondents did not rely on the provisions of the
Military Ombud Act,
4 of 2012
and counsel did not make any submissions in this regard.
In my view this Act is another stumbling block that applicants need
to overcome to be successful. An Office of the Military Ombud
was established in terms of this Act, the object of which office
is
to investigate and ensure that complaints are resolved in a fair,
economical and expeditious manner as set out in s 3 thereof.
The Mandate of Office of the Military Ombud is set out in s 4 of the
Act,
i.e.
to investigate complaints lodged in writing by
inter
alia
“
(a)
a member regarding his/her conditions of service”.
In
terms of s 4(2) the phrase
“
conditions
of service”
bears
the same meaning as assigned to it under
s 1
of the
Defence Act
referred
to
supra
.
[32]
The Military Ombud has the powers and functions to investigate
complaints lodged with that office in accordance with s 6 of
the Act
and such complaints must be investigated fairly and expeditiously,
without fear, favour or prejudice.
[33]
Section 200 (1) of the Constitution stipulates that the
“
Defence
Force must be structured and managed as a disciplined military
force”
.
Subsection 200 (2) of the Constitution stipulates the following:
“
The
primary object of the Defence Force is to defend and protect the
Republic, its territorial integrity and its people in accordance
with
the Constitution and the principles of international law regulating
the use of force.”
[34]
It is trite that the military service in this country as in other
countries is of a unique nature. The SANDF functions
within a
unique command structure and strict obedience to lawful orders and
professional respect for those in command is required
within such
structure. Kriegler J criticised the court
a
quo’s
failure
to recognise the realities of military service, military life and
military discipline in para [31] of
Minister
of Defence v Potsane; Legal Soldier (Pty) Ltd v Minister of
Defence
2001 (11) BCLR 1137
(CC) (“Potsane”).
As
he said,
“
Soldiers
live and work in a subculture of their own. This is recognised
and accepted by acknowledging the constitutional validity
of a
separate military justice system with its own unique rules, offences
and punishments. … Although the overarching power
of the
Constitution prevails and although the Bill of Rights is not
excluded, the relationship between the SANDF and its members
has
certain unique features. For instance, what would be acceptable
in another employment relationship is not only impermissible
for a
soldier but may be visited by punishment as severe as deprivation of
liberty for several years.”
[35] At para [39] of
Potsane
the learned judge continued as follows:
“
Modern
soldiers in a democracy, those contemplated by Chapter 11 of the
Constitution, are not mindless automatons. Ideally
they are to
be thinking men and women imbued with the values of the Constitution;
and they are to be disciplined. Such discipline
is built on
reciprocal trust between the leader and the led. The commander
needs to know and trust the ability and willingness
of the troops to
obey. They in turn should have confidence in the judgment and
integrity of the commander to give wise orders.
This
willingness to obey orders and the concomitant trust in such orders
are essential to effective discipline. At the same
time
discipline aims to develop reciprocal trust horizontally, between
comrades. Soldiers are taught and trained to think
collectively
and act jointly, the cohesive force being military discipline built
on trust, obedience, loyalty,
esprit
de corps
and camaraderie. Discipline requires that breaches be nipped in
the bud — demonstrably, appropriately and fairly.”
[36]
Finally, the learned judge in dealing with the separate military
justice system found that the basis of differentiation between
members of the SANDF and other people can have no adverse effect on
the human dignity of such members.
[37]
Having dealt with the
dicta
of
Kriegler J, speaking for a unanimous court, one should always take
cognisance of the fact that members of the SANDF
“
remain
part of our society, with obligations and rights of citizenship.”
Refer
to the judgment of O’Regan J in
South
African National Defence Union v Minister of Defence and Another
[1999] ZACC 7
;
1999
(4) SA 469
(CC) at para
[12]
, quoted with approval by Kriegler J in
Potsane
at
para [36].
[38]
Mr Cronje anticipated that it might be argued that applicants failed
to exhaust their internal remedies and therefore relied
on the
judgment of
Koabe
and Others v Minister for Home Affairs and Others (Lawyers for Human
Rights as amicus curiae)
2009 (12) BCLR 1192
(CC),
in particular the
dicta
at paragraphs 44 and 48. The Constitutional Court emphasized that
where the substantive enjoyment of rights has a high premium,
it is
important that any existing administrative remedy is an effective
one. It will only be effective if it is objectively
implemented. The internal remedy must be readily available and
possible to pursue without any obstruction. Koabe dealt
with a
review application which is not the case in
casu
.
Applicants merely seek
interim
relief in order for them to try and persuade the authorities not to
transfer them.
VII.
EVALUATION OF THE EVIDENCE AND SUBMISSIONS OF COUNSEL
[39]
I am satisfied that applicants’ constitutional right to have
access to water as contained in s 27 of the Constitution
has been
infringed. Clearly, an act of spoliation has been committed.
It is deplorable that an individual such as the
Officer Commanding of
AFB, Bloemspruit acted in the manner admitted by instructing that
applicants’ electricity and water
supply to their homes be
disconnected. Respondents do not oppose the relief sought and
obtained in paragraph 6.1 of the rule
nisi
.
They concede that applicants are entitled to a final order in
this regard. It is common cause that the water and electricity
supply was reconnected soon after the
interim
order
was granted.
[40]
Although the relief sought in respect of paragraphs 6.2, 6.3 and 6.4
of the court order of 10 March 2017 might be regarded
as final
relief, I accept for purposes hereof that applicants seek
interim
relief
pending the outcome of their queries to higher authority in the Air
Force as suggested in paragraph 6.5 of the order.
Applicants
jumped the gun in respect of the possible withholding of their
salaries. It is not in dispute that their salaries
have been
paid to them notwithstanding their refusal to be transferred and
there was also no threat that payment of their salaries
might be
stopped.
[41]
I have no reason not to accept the documentation before me and
respondents’ version in particular pertaining to the processes
followed and the outcome of the correspondence initiated by
applicants. The transfers have been considered in terms of the
military hierarchy and I am satisfied that there was substantial
compliance with the applicable policy. However, as mentioned
infra,
the
dispute is really one to be dealt with by the military in the first
instance.
[42]
The applicants do not attack the validity or lawfulness of the
signals (instructions) issued for their geographical transfers
in
their founding papers although they tried to make out such a case in
reply. Second applicant merely mentioned in her founding
affidavit that no proper career planning was undertaken pertaining
herself and that the Air Force did not comply with its own
instructions. Applicants have not taken the decisions to
transfer them on review and this court cannot review and set aside
such decisions notwithstanding applicants’ complaints. We
are not in possession of the reasons of the person or body
that made
the decisions to transfer, obviously insofar as applicants did not
file a review application, requesting the functionary
to present
reasons. It is common cause that applicants refuse to obey the
instructions and now seek leave from the court
by way of interdictory
relief to remain in Bloemfontein pending their further requests to
senior officers to reconsider the transfers.
According to
respondents valid transfer instructions were issued, but contrary
thereto applicants failed to follow the correct
procedure and chain
of command in lodging grievances. It is not in dispute that the
grievance procedure was not followed.
[43]
The unique nature of the SANDF contemplates the existence of a
Military Disciplinary Code and members’ entitlement to
utilise
a particular grievance procedure, but more importantly, to rely on
the Military Ombud to investigate their complaints fairly
and
expeditiously, without fear, favour or prejudice. The SANDF
cannot fulfil its constitutional mandate and obligations
without the
requisite capacity, competence, discipline and professionalism.
Civil courts should not be allowed to interfere
with the processes of
the military, save in exceptional circumstances and only when there
is clear proof of a breach of a member’s
constitutional rights.
[44]
Mr Cronje’s reliance on
Koabe
supra
as
authority for not having to exhaust internal remedies does not hold
water. In
Koabe
the court dealt with a review application which is not the case in
casu
.
This court was not requested to review and rescind any of the
decisions that preceded the transfer instructions. Applicants
merely seek temporary relief in order for them to try and persuade
the authorities not to transfer them. The requisites for
interim
interdicts
must be considered and as indicated
infra
an
aspect relevant thereto is whether applicants have another
satisfactory remedy available to them.
[45]
I referred to several
dicta
of Kriegler J in
Potsane
supra.
In
my view people who voluntary join the SANDF in the knowledge that it
is a disciplined force with its own disciplinary rules and
particular
requirements should not cry foul every time they believe they have
been treated unfairly.
[46]
As mentioned, applicants seek
interim
relief
,
save
for the relief contained in paragraph 6.1 of the court order granted
on 10 March 2017 which is final in nature. Applicants’
entitlement to such an order has been conceded. I accept that
they only need to prove a
prima
facie
right, even open to doubt, a well-grounded apprehension of
irreparable harm if the
interim
relief
is not granted and ultimate relief is eventually granted, that the
balance of convenience favours them and that they do not
have any
other satisfactory remedy. In any event, in exercising its
discretion a court is entitled to dismiss an application
for an
interim
interdict even if all four these requirements have been proven.
[47]
In my view the applicants’ complaints fall within the purview
of the investigations to be conducted by the Military Ombud.
They failed to refer their complaints to the Office of the Military
Ombud, but instead require a civil court to deal with aspects
that
should be dealt with by the military. It appears from the
letter of first applicant as if he intended his written complaint
dated 27 February 2017 to be sent to the Military Ombud for action,
but there is no proof that the complaint reached the Ombud’s
office, and if so, what transpired in that regard.
[48]
Bearing in mind the authorities referred to, I am satisfied that
civil courts should not interfere in military matters, save
in
exceptional circumstances and only when it is clear that a
transgression of any of the rights contained in the Bill of Rights
has occurred. It is possible that if relief is granted, the
floodgates might be opened and each and every disgruntled soldier
may
in future elect to run off to our civil courts in order to obtain
relief from what they regard as oppressive or unfair conduct
by
superiors. This may lead to preposterous results and an
infringement of military discipline and the concomitant command
structure of the military. Soldiers may later on be complaining
about having to sleep in sleeping bags in the veld during
cold,
frosty Free State nights, or lack of sufficient food rations during
military operations, or lack of sleep due to training
requirements,
to mention a few examples.
[49]
I am satisfied that applicants have not shown a
prima
facie
right to stay on in Bloemfontein as part of the personnel
establishment of the AFB, Bloemspruit. They should not be seen
to subvert the transfer instructions and this court cannot authorise
them to disobey valid transfer orders. Soldiers cannot
dictate
to the SANDF how and when they will comply with lawful instructions.
They cannot be allowed to hold the SANDF at
ransom by relying on
personal circumstances and inconvenience in the absence of a review
application. Such orders, whether
unfair or not, remain valid
until reviewed and set aside. No such application has to be
adjudicated at this stage of the
proceedings. In any event,
they failed to follow the appropriate grievance procedure, but more
importantly, they did not
even approach the Military Ombud for a
speedy resolution of their disputes. It is their intention as
is evident from paragraph
6.5 of the interim order of 10 March 2017
to approach higher authority in the Air Force again in the hope that
the transfers might
be cancelled. Clearly, these senior
officers have already made up their minds and concluded that
applicants should obey the
transfer instructions. Applicants
want to embark on an exercise in futility and are merely buying time
to remain in Bloemfontein.
This cannot be countenanced.
[50]
Applicants, and first applicant in particular, may be inconvenienced,
but I am not prepared to find that they have shown a
well-grounded
apprehension of irreparable harm if the
interim
relief
is not granted and the ultimate relief is eventually granted.
Their relocation costs are being paid by the SANDF.
As is
apparent from the circular of 20 February 2014 referred to
supra,
applicants
should have reported for duty at their new units pending finalisation
of their grievances.
[51]
The balance of convenience does not favour applicants. They
live and work in a disciplined, structured military system
and their
own convenience cannot out-rank that of the SANDF. In any
event, if they adhered to the transfer instructions,
took up their
positions in Bredasdorp and Pretoria respectively and eventually
succeed in setting aside the decisions to transfer
them, the SANDF
will have to pay for their costs to move back to
Bloemfontein
and to arrange appropriate accommodation.
[52]
Applicants do have other reasonable satisfactory remedies as pointed
out
supra
and
consequently, they also failed to prove the fourth requirement for
interim
interdicts.
As mentioned, and save for exceptional cases where the Bill of Rights
have been transgressed, the civil courts
should not deal with
disputes amongst the military, as this will most certainly have a
negative effect on the military hierarchy
and military discipline.
VIII.
CONCLUSION
[53]
In conclusion, I find that the rule
nisi
should
be discharged and the application be dismissed, save in respect of
paragraph 6.1 of the order of 10 March 2017, which
interim
order
shall be made final as conceded by respondents. Fourth
respondent acted in an inhumane manner towards applicants and
their
families by instructing the disconnection of water and electricity
supply to their homes without due legal process.
The object
was, no doubt, to pressurise the applicants to vacate their homes.
He should have known better. If it was
necessary to discipline
the applicants, appropriate steps should have been taken instead of
arrogantly taking the law into his
hands. Consequently he
should be ordered to pay such costs ordered herein jointly and
severally with first respondent.
[54]
Applicants are partially successful only. They should not have
proceeded with the application in the circumstances.
The
respondents conceded in their answering affidavit that the water and
electricity supply should never have been disconnected
and they
undertook not to disconnect supply without due process. In
exercising my discretion I am satisfied that applicants
should be
entitled to their costs until receipt and consideration of the
answering affidavit only.
[55]
Respondents are successful in respect of the remainder of the
relief. There is no reason why the applicants shall not
be held
responsible for payment of respondents’ costs from filing of
the replying affidavits.
IX.
ORDERS
[56]
Therefore the following orders are made.
1.
Paragraph
6.1 of the
rule
nisi
issued on 10 March 2017 is made final.
2.
Save
for the order granted in paragraph 1
supra
,
the rule
nisi
is
discharged and applicants’ application is dismissed.
3.
First
and fourth respondents shall pay applicants’ costs of the
application until receipt and consideration of the respondents’
answering affidavit, such costs to be paid jointly and severally, the
one to pay the other to be absolved.
4.
Save
for the order in paragraph 3
supra,
applicants
shall pay respondents’ costs of opposition of the application
since filing of the replying affidavits, jointly
and severally, the
one to pay, the other to be absolved.
_____________
JP
DAFFUE, J
On
behalf of applicants: Adv
PR Cronje
Instructed
by:
Fixane Attorneys
Bloemfontein
On
behalf of respondents: Advv PJJ Zietsman &
Naidoo
Instructed
by:
State Attorney
Bloemfontein