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[2017] ZAFSHC 167
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Masilonyana Local Municipality and Another v Bezuidenhout and Others (2770/2017) [2017] ZAFSHC 167 (21 September 2017)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: 2770/2017
In
the matter between:
MASILONYANA
LOCAL MUNICIPALITY
1
st
Applicant
LEJWELEPUTSWA
DISTRICT MUNICIPALITY
2
nd
Applicant
and
BAREND
CHRISTIAAN BUURMAN BEZUIDENHOUT
1
st
Respondent
WILLIAM
JOSEF GOODYEAR
2
nd
Respondent
GERRIT
PRETORIUS (JNR)
3
rd
Respondent
GERRIT
PRETORIUS (SNR)
4
th
Respondent
HENDRIK
PETRUS OOSTHUIZEN
5
th
Respondent
PIETER
ROSSOUW VAN STADEN
6
th
Respondent
JOHANNES
GEORGE ROUX
7
th
Respondent
HENDRIK
JOHANNES DE WET SMITH
8
th
Respondent
JOHANNES
THEODORUS PIENAAR
9
th
Respondent
JAN
CHRISTOFFEL ELS
10
th
Respondent
HENDRIK
DANIëL FOURIE STEYN N.O.
11
th
Respondent
ANNA
SOPHIA STEYN N.O.
12
th
Respondent
JDA
POLYETHYLENE PIPES CC
13
th
Respondent
HEARD
ON:
29
June 2017
JUDGMENT
BY:
MATHEBULA, J
DELIVERED
ON:
21
September 2017
[1]
This is an application for rescission of judgement and the
restoration of the status quo ante between the parties. The
first and second applicants are local and district municipalities as
contemplated in section 2 of the Municipal Structures Act
32 of
2000. The respondents are carrying-on farming operations within
the area of jurisdiction of the applicants.
[2]
The respondents (plaintiffs in the main case) individually issued
combined summonses against the first applicant (defendant
in the main
case) for damages caused by a fire that originated at a rubbish
dumping site situated at Tshepong/Verkeerdevlei.
The first
applicant defended the matter and duly pleaded to the allegations
made by the respondents.
[3]
I pause to mention that in paragraph 2 of the Summons and Particulars
of Claim under case number 1721/2014 the applicant is
cited as
follows:-
“
The
Defendant is Masilonyana District Municipality, a municipality duly
incorporated in terms of the Local Government Municipal
Structures
Act 117 of 1996 with main place of business at corner of Theron and
Le Roux street, Theunissen, Free State Province”.
The Plea to that
paragraph is couched in the following manner:-
“
Save
to state that the Defendant has no knowledge of the averments made in
paragraph 1 and puts the Plaintiff to the proof thereof,
the
Defendants admits paragraph 2”.
[4]
All matters were consolidated and set down for trial before Jordaan,
J. On the 20
th
October 2015 the parties (as cited) concluded a settlement agreement
which was made an Order of Court.
In
terms of the agreement, the first applicant accepted liability in the
sum of R5 211 000 in favour of the respondents.
Throughout the litigation (from the summonses to the settlement
agreement) both parties were assisted by eminent senior counsel
and
attorneys.
[5]
Between the 11
th
February to 30
th
September 2016, the first respondent effected monthly payments
totalling R5 400 000 to the attorneys for the respondents.
Thereafter the payments stopped. The respondents issued the
writ of execution to enforce the court order. The notice
of
sale was served on the first applicant on the 18
th
April 2017 with the sale in execution scheduled for the 19
th
May 2017. On the latter date, Daffue, J granted the first
applicant an interdict suspending the sale in execution pending
the
finalisation of the application for rescission of judgement.
The issue of costs (including costs of the auction) were
ordered to
stand over to be adjudicated on the conclusion of this application.
[6]
Mr Burger, counsel for the applicants, submitted that the parties
made a
justus error
with reference to the law. The
applicant is a creature of statute deriving its powers and functions
from the Municipal Structures
Act 170 of 1998. There is no
entity named Masilonyana District Municipality in existence.
His oral submission centred
around the relevant provisions of the
aforementioned Act which provide for different categories of
municipalities. Further
that the powers and duties of
municipalities are clearly defined according to their category.
In this matter, it was not
within the purview of the applicant to
deal with the matter similar to the one that is the subject matter in
the main action.
The essence of his submission was that the
respondents have relied on the common law powers of the applicant in
their particulars
of claim. The correct position is that it is
the statutory powers that must be adhered to. He also referred
to the
provisions of the National Veld and Forrest Fire Act which
stipulate that the landowner must maintain fire breaks and that the
respondents have failed to do so.
[7]
In his response, Mr Zietsman argued that in this matter, the only
defendant before the court in the main case was the first
applicant.
The description of the first applicant in the papers was a misnomer.
He submitted that the case for the
respondents was not based on the
failure of the applicant to exercise statutory powers but on delict.
The first applicant
did not deny such allegations but admitted the
responsibility and pleaded that all the necessary steps were taken as
required by
the common law and National Veld and Forrest Fire Act.
In essence, negligence alternatively contributory negligence. He
argued that the wrong impression of the applicant on the applicable
powers and functions cannot be attributed to the respondents.
He pointed out that this was a contested claim which was
compromised. In addition, the parties were endowed with a
wealth
of legal expertise and experience which was instrumental in
the crafting of the settlement agreement eventually made an order of
court.
[8]
The factual background to this application is for all practical
purposes common cause between the parties. The application
turns on whether the applicant(s) have made out a case for rescission
of the judgement in terms of Rule 42 of the Uniform Rules
of Court
alternatively the common law. The applicants contend that the
order was erroneously sought and granted on the basis
of a common
mistake. The pitfall is that the papers are silent as to who
induced the mistake and whether the first applicant
relied on it.
[9]
At this stage it is imperative to deal with the provisions of the law
that Mr Burger relied on in advancing his argument.
I find it
necessary to quote the relevant passages. Section 84 of the
Municipal Structures Act 117 of 1998 specify the division
of
functions and powers between district and local municipalities.
Section 84 (1)(e) and (j)
provide the following:-
(1)
A
district municipality has the following functions and powers:
“
(e)
Solid waste disposal sites, in so far as it relates to -
(i)
the determination of a waste disposal strategy;
(ii)
the regulation of waste disposal;
(iii)
the establishment, operation and control of waste disposal sites,
bulk waste transfer
facilities and waste disposal facilities for more
than one local municipality in the district; and
(j)
Fire fighting services serving the area of the
district municipality
as a whole, which includes —
(i)
planning,
co-ordination and regulation of fire services;
(ii)
specialised
fire fighting services such as mountain, veld and chemical fire
services;
(iii)
co-ordination
of the standardisation of infrastructure, vehicles, equipment and
procedures;
(iv)
training of fire
officers.”
Rule
42 (1) of the Uniform Rules of Court read as follows:-
“
(1)
The court may, in addition to any other powers it may have,
mero
motu
or upon the application of any party affected, rescind or vary:
(a)
…
.
(b)
…
.
(c)
an
order or judgement granted as the result of a mistake common to the
parties”.
[10]
The difficulty in this matter is that the facts or circumstances or
basis which culminated in a settlement agreement being
made an Order
of court are not set out by any of the parties. It is trite
that the settlement agreement creates new rights
and obligations
between the parties which exist independently of the original cause.
Such an order brings finality to the
matter and the lis becomes a res
judicata. In the event of non-compliance with the order, such
can be enforced
inter
alia
through writ of execution see:
Eke
v Parsons
2015 (1) BCLR 1319
(CC) at paragraph 3
and
Slabbert
v MEC for Health and Social Development of Gauteng Provincial
Government
(2016) ZASCA 16
at paragraph 7.
[11]
The applicant is seeking the setting aside of the order relying on
the
justus
error
.
The requirement of a
justus
error
were laid out as a “mistake common to the parties” and
that “there must be a causal link between the mistake
and the
grant of the order” see
Tshivhase
Royal Council v Tshivhase
[1992] ZASCA 185
;
1992 (4) SA 852
at 863 A-C
.
[12]
Every municipality whether a local or district entity is headed by a
Municipal Manager who is the administrative head of that
creature of
statute. Such an official is expected to possess the necessary
skills and knowledge in order to execute his responsibilities
as per
his powers and functions derived from the relevant legislation and
policies. In situations where s/he fall short,
s/he must seek
advice sourced internally and externally which must be accepted after
satisfying oneself that it is correct and
in accordance with the law.
[13]
The applicant is relying on an error. The founding affidavit of
Ratolo Stephen Kau is unhelpful in that it does not go
to the genesis
of the error. It is simply a recording of the chronology of events as
they unfolded. It would have been prudent
that Maputsoe David
Nthau, the municipal manager of the first applicant at the time had
filed a detailed affidavit explaining the
circumstances around the
justus
error
.
At the centre of this contention is that the first applicant did not
plead in accordance with section 84 of the Municipal
Structures Act
supra. There is no merit in this argument. The
respondents based their case on a delict not failure
to exercise
statutory authority or power. The allegation is that the
applicant was the owner of and/or in control of the
dump from which
the fire emanated. The applicant duly pleaded absence of
negligence alternatively contributory negligence
on the part of the
respondent for not maintaining fire breaks as required by the
statute.
[14]
These provisions that the respondent is relying on have been in our
statute books for more than a decade. They are pieces
of
legislation well known to the officials in the position of
inter
alia
Maputsoe David Nthau and legal representatives as eminent as
silks. I find it strange that a person in the position of the
Municipal Manager will not be conversant with the provisions of the
very legislation that regulate his powers and functions.
Perhaps that explains the underlying causes of the parlous financial
position of the applicant. The mistake of law on the
part of
the official(s) and legal representatives of the applicant can never
be equated to a common mistake of the parties.
[15]
On the facts it is apparent that this was not a common but a
unilateral mistake on the part of the applicant. It was
simply
self-created. The principle of the law is clear that one cannot
rely on unilateral mistake to resile from the agreement
made an
order. See
Sonap
Petroleum (SA) (Pty) Ltd vs Pappadogianis 1992 (3) SA (SCA).
[16]
The defence that the applicant wishes to introduce should the
rescission be granted was always available from the onset of
the
litigation. It required only a basic research and home work as
to the appropriate law applicable in the circumstances
on hand.
It was reconfirmed and emphasized in
Eke
and Slabbert
supra
that “
litigation
after the consent order will relate to non-compliance with the
consent order and not the underlying dispute”
.
It is on this basis that I deem the said agreement on behalf of the
applicant misplaced. There can never be any reference
to a
common mistake because the mistake referred to was not relevant at
the time the settlement was made an Order of court.
The
principle laid in
Tshivhase
supra
at
page
863 D
is that “
you
cannot subsequently create a retrospective mistake by means of fresh
evidence which was not relevant to any issue which had
to be
determined when the original order was made”.
The applicant is attempting to do just that.
[17]
It is trite that a court has no discretion to set aside a current
order where there are no grounds for setting aside the underlying
agreement pursuant to which the consent order was made. This
was reconfirmed in
Botha
v Road Accident Fund 2017 (2) SA (SCA)
.
In paragraph 13 the following is illuminatingly stated:
“
In
Theron
NO v United Democratic Front (Western Cape Region)& others
1984
(2) SA 532
(C)
at 536G this court held that a court has a discretion whether or not
to grant an application for rescission under
rule
42(1).
But
where, as here, the court’s order recorded the terms of a valid
settlement agreement, there is no room for it to do so”.
As
a judge of the High Court, I am bound by the decision of the Supreme
Court of Appeal. The application ought to be dismissed.
[18]
It is an undeniable fact that the description of the first applicant
throughout the proceedings was incorrect. This is
the reason
why the 1
st
applicant is arguing that a wrong party was before the court.
There is no entity called Masilonyana District Municipality.
The respondents refer to this omission as a “
misnomer”
.
The Oxford Paperback Dictionary & Thesaurus (3
rd
edition) meaning of a misnomer is described as “
a
name or term that is wrong or inaccurate”
.
[19]
The respondents argued that at all times the parties were certain and
knew precisely of the identity of each other. It
is interesting
to note that in the “Notice of Intention to Defend”
served and filed on the 6
th
April 2014, the defendant is cited correctly as Masilonyana Local
Municipality. This demonstrates that the parties treated
this
omission as a minor issue. In so doing, the applicant showed
the connection with the claim notwithstanding the error
in its
description. I am satisfied that the wrong description is
simply a misnomer and the parties treated it as such through
their
conduct. This is in line with the approach adopted by the court
in
Foxlake
Investments (Pty) Ltd t/a Forway Developments (Pty) ltd v Ultimate
Raft Foundation Design Solutions CC t/a Ultimate Raft
Design and
another
2016 ZASCA 54
at Paragraph 13 and 14.
In this regard, the respondent is entitled to the relief sought.
[20]
The general rule governing the issue of costs is that the costs
follow the result. There remains the dispute regarding
the
costs of the application under case number 2458/2017 granted by
Daffue, J on the 19
th
May 2017. In that application the applicant obtained an
interdict halting the scheduled sale in execution on the 19
th
May 2017 at 11H00 pending the finalisation of the application for
rescission of judgement. The sale was cancelled approximately
two (2) hours before its commencement. It is patently clear
that given the lot that was to be sold, the respondents incurred
auctioneers costs. I do not intend to deviate from the
principle of awarding costs to the successful party.
[21]
Counsel for the respondents submitted that I should make an order for
costs on attorney and client scale. He lamented
the use of
public funds for ill-advised and unconscionable litigation such as
this application. Although I agree that a costs
order must be
granted against the applicant, I do not agree that it should be on
attorney and client scale. The applicant
did not act
frivolously or inappropriately in bringing an application setting
aside the court order.
[22]
In the result I make the following order:-
1.
The
application is dismissed.
2.
The
first applicant is ordered to pay the costs of the application.
3.
The
first applicant is ordered to pay the application and auction costs
under case number 2458/2017.
4.
The
order of the court of the 20
th
October 2015 is corrected by substituting the word “District”
with the word “Local”.
_______________
MATHEBULA,
J
On
behalf of applicant:
Adv. A. Burger SC
Instructed
by:
Finger Attorneys
c/o Michael Du Plessis
Attorneys
On
behalf of respondents:
Adv. J. Zietsman
Instructed
by:
Honey Attorneys
/roosthuizen