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[2017] ZAKZDHC 18
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Moola and Others v KwaDukuza Municipality and Another (2194/2017) [2017] ZAKZDHC 18 (21 April 2017)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, DURBAN
CASE
NO: 2194/2017
In
the matter between:
CASSIM
MOHAMMED MOOLA
First Applicant
THE
CONCERNED CITIZENS GROUP
Second
Applicant
DEVADAS
PAUL
DAVID
Third Applicant
And
KWA-DUKUZA
MUNICIPALITY
First Respondent
DOUBLE
RING TRADING 7 (PTY) LTD
Second Respondent
JUDGMENT
CHETTY
J:
[1]
The applicants launched an urgent application for an interim
interdict in the following terms:
a.
That
pending the determination of a review application to be launched by
the applicants concerning the decision of the first respondent,
alternatively, the decision of the first respondent’s Tender
Adjudication Committee taken on 17 January 2017, to sell the
immovable property described as Portion 10 000, Erf 478 and Erf
264 Stanger, in extent 20.9 hectares, 2.298 hectares and 4047
square
meters respectively (which have been or are to be consolidated as Erf
12666 Stanger) (“the property”) to the
second respondent,
the second respondent is interdicted and restrained from:
a.
taking
occupation or possession of the property;
b.
commencing
or continuing with excavations or any form of construction on the
property.
b. The
first respondent is interdicted and restrained from authorising, to
the extent that it may be required
to do so:
i.
the occupation or possession of the property by the second
respondent; and
ii.
commencement or continuation of construction work and all excavations
on the property by the second respondent.
c.
That, within 15 days of the granting of this order, the applicants
are to institute the review
application aforesaid, failing which the
interdict against
the first and
second respondents will lapse and be of no force and
effect;
d.
That the first and second respondents, jointly and severally, the one
paying the other
to be absolved, are to pay the
applicants costs.
e.
That the provisions of prayers 1(a) and 1(b) above operate as interim
relief pending the
final determination of this application.’
[2]
The application for a temporary interdict was opposed by the first
respondent (‘the municipality’) and the developer
(‘DRT’), the second respondent. An undertaking was sought
and obtained from DRT that whilst the parties undertook to
exchange
affidavits, it would maintain the status quo and no work or
construction related activities would take place on the property
pending the finalisation of the urgent application.
[3]
It is trite that in order to secure an interim interdict the
following must be established (1) A prima facie right on the part
of
the applicant; (2) A well-grounded apprehension of irreparable harm
if the interim relief is not granted and the ultimate relief
is
granted; (3) A balance of convenience in favour of granting the
interim relief; and (4) The absence of any other satisfactory
remedy
available to the applicant. See
Johannesburg Municipal Pension
Fund & others v City of Johannesburg & others
2005 (6) SA
273
(W) para 8. In
Joubert NO & others v Maranda Mining
Company (Pty) Ltd & others
[2010] 2 All SA 67
(GNP) para 26
it was held that:
‘
The applicants are obliged to
show that the right which is the subject-matter of the main
application which they seek to protect
by means of interim relief is
clear, or if not clear, is
prima
facie
established, though
open to some doubt. If the right is only
prima
facie
established then it
must be shown that there is a well-grounded apprehension of
irreparable harm to the applicants if the interim
relief is not
granted and they ultimately succeed in establishing their right; that
the balance of convenience favours the granting
of interim relief;
and that the applicants have no other satisfactory remedy.’
[4]
When the matter came before me, the applicants submitted that in
light of the Court being in possession of the affidavits of
all the
parties, it was more prudent that the Court consider the granting of
a final order as opposed to the granting of an interim
relief.
See
National Director of Public Prosecutions v Zuma
[2009] ZASCA 1
;
2009 (2)
SA 277
(SCA) where the Court said:
‘
[26] Motion proceedings, unless
concerned with interim relief, are all about the resolution of legal
issues based on common cause
facts. Unless the circumstances
are special they cannot be used to resolve factual issues because
they are not designed to
determine probabilities.’
[5]
This approach, in my view, accorded with the practicalities of the
circumstances in this particular case as work on the development
site
had come to a halt or stalled, and would remain in that state if an
order were granted in favour of the applicants, until
the
finalisation of the review application which the applicants intend to
bring. In contrast to the requirements for interim
relief, when
seeking a final order the applicants would have to show a clear right
on their part; an injury actually committed
or reasonably apprehended
and that there is no other satisfactory remedy available to the
applicant. The requisites for the right
to claim for a final
interdict were expressed in
Setlogelo v Setlegelo
1914 AD 221
at 227.
[6]
At the outset it is worth remembering, particularly for reasons that
will become apparent from what follows, that in motion
proceedings
the affidavits serve both as the pleadings and the evidence relevant
to the issues between the parties, and a party
can only be expected
to deal with averments raised by the other side and not with
allegations possibly anticipated but which are
not made. See
Minister of Law and Order & another v Dempsey
1988 (3) SA
19
(A) at 37G-J. It is trite that an applicant in motion
proceedings must make out his or her case and produce all he desires
to use in support of it in his affidavit filed with the notice of
motion and is not permitted to supplement it in his replying
affidavit and still less to make out a new case in his replying
affidavit. See
Minister of Land Affairs and Agriculture &
others v D & F Wevell Trust & other
s
2008 (2) SA 184
(SCA) at 200C-E
[7]
The first applicant is a member of the second applicant, a voluntary
association whose members are ratepayers within the area
of the
KwaDukuza Municipality. The third applicant is a respected
member of the legal profession residing and practicing
in the area of
KwaDukuza. He is also a member of the second applicant.
The founding affidavits do not say more of the
applicants’
locus standi; albeit an oblique reference to the fact that as
residents on the municipality, they have a right
to ensure that
municipal property is not unlawfully disposed of to third parties.
The Constitution of the second applicant
(the Concerned Citizens
Group – ‘CCG’) provides that its aims and
objectives include taking up ‘
in any way, civic issues that
relate to the KwaDukuza Municipality, the Illembe District
Municipality and any other organ of government.
The term,
“civic issue” shall be given as wide an interpretation as
is reasonably possible
”. CCG further seeks to monitor
the decisions, regulations and bylaws of the municipality and to
undertake campaigns
in support or opposition to such decisions.
It is also entitled to sue in its own name.
[8]
Initially, the respondents took issue with the locus standi of the
applicants, with the first respondent contending that the
applicants
“are not the custodians of public rights” and that they
have not established that they will suffer any harm
if the
development were to proceed. DRT suggested that the applicants
were “business people and landlords, concerned
about
competition to their commercial interests”. I considered
the objections to the applicants’ standing to
be without
merit. The opposition was withdrawn by counsel for the
respondents at the time of the hearing, and I am of the
view that the
concession was properly made, particularly as courts should adopt a
broad, rather than a narrow approach to standing,
especially with
regard to matters where the relief sought is on behalf of others, and
where citizens legitimately exercise their
right to interrogate the
actions of government or organs of state against the standard of
lawfulness. The applicants, in
my view, were not “own
interest” litigants as was the case in
Giant Concerts CC v
Rinaldo Investments (Pty) Ltd & others
2013 (3) BCLR 251
(CC). At para 34 Cameron J observed that:
‘…
To
this observation one must add that the interests of justice under the
Constitution may require courts to be hesitant to dispose
of cases on
standing alone where broader concerns of accountability and
responsiveness may require investigation and determination
of the
merits. By corollary, there may be cases where the interests of
justice or the public interest might compel a court
to scrutinise
action even if the applicant’s standing is questionable.
When the public interest cries out for relief,
an applicant should
not fail merely for acting in his or her own interest.’
[9]
In 2013 the municipality, which is the owner of the immovable
property being the subject matter of this application, published
an
invitation to tender inviting preferred developers to ‘partner
the municipality’ in the development of the project
site, known
as the golf course area. The municipality was of the view that
this would contribute to the regeneration of its
central business
district. The proposal was for the development to include new
civic offices and a mixed use development
which could include
retail/office developments, residential/entertainment and recreation
and/or service industry development, at
the cost of the developer.
The successful developer would be required to enter into an agreement
with the municipality to implement
the project in accordance with the
tender specifications.
[10]
The applicants considered the proposal to be a ‘public private
partnership’ in the form of project financing –
often
referred to as BOT or ‘build, operate and transfer’ –
where a private developer receives a concession from
the public
sector to finance, design, construct, and operate the facility. DRT
was selected as a preferred bidder pursuant to a
tender process.
The applicants allege in their founding papers that the municipality
sold the property unconditionally to
DRT for R9 million, and not on
the basis of the public private partnership which had been conveyed
to the residence and ratepayers
of KwaDukuza. The applicants go
further to contend that the municipality did not follow a tender
process and that the property
was awarded to DRT on the basis of an
unsolicited bid. Accordingly, the applicants contended that the
municipality acted
outside of its powers in disposing of the property
as it did, and in so doing, violated provisions of the Local
Government: Municipal
Finance Management Act 56 of 2003 (the ‘MFMA’),
the
Public Finance Management Act No. 1 of 1999
, the municipality’s
own Supply Chain Management policies, as well as its Immovable
Property Disposal Policy.
[11]
On 18 November 2016 the municipality placed a notice in a local
newspaper advising of its intention to hold a public meeting
on 17
January 2017 to consider the disposal of the development site to DRT.
On 13 January 2017 the applicants attorney wrote to
the municipality
expressing concern at the disposal of public property other than by a
process of an open tender, in accordance
with legislation. The letter
is particularly relevant as it records the basis of the applicants’
opposition to the disposal
of the property to DRT. The letter
contends that the municipality’s decision “
in
principle, to entertain an unsolicited bid for the purchase of the
properties … Is … wrongful and unlawful and
falls
outside the parameters of the prescribed legislation
”.
It continues that the sale of the properties “
by process of
unsolicited bid rather than open public tender would be wrong for
unlawful and unconstitutional
”.
[12]
In addition, the applicants attorney, in terms of s 32(1)(a) of the
Constitution, requested access to information held by the
municipality pertaining to the adjudication of the tender, which the
third applicant requested on 9 May 2016 and reiterated the
issue of
the disposal of the property by means of an unsolicited bid. The
municipality was given until 16 January 2017 to furnish
the
applicants with the information requested in the letter and in a
previous access to information request filed in terms of the
Promotion of Access to Information Act 2 of 2000 (‘PAJA’)
by the third applicant. In the event of the municipality
not
complying with the request to supply information, the applicants’
attorney gave notice to the respondents that an application
would be
brought to court to compel access to the required documents and to
“
set aside the tender adjudication committee meeting, should
such meeting proceed on 17 January 2017
.”
[13]
As matters turned out, the meeting took place on 17 January 2017, at
which the first applicant and members of the second applicant
were
present. For reasons that are not entirely irrelevant to this
judgment, the first applicant and other members of the second
applicant were removed from the meeting. It bears noting however that
in the notice of motion to which the founding affidavit is
attached,
there is no prayer for relief pertaining to the request for
information in terms of PAJA or to set aside the decision
of the
tender adjudication, taken on 17 January 2017.
[14]
The applicants launched their urgent application in this Court on 28
February 2017 seeking the relief set out earlier.
They contend
that the municipality’s decision to entertain DRT’s
‘purchase bid’ was unlawful and fell outside
its
‘parameters’, was unfair and an unlawful administrative
action and offended against the principle of legality.
The
applicants expressly state that they intend to review the decision of
the municipality to sell the property ‘unconditionally’
to DRT.
[15]
The municipality accepts that it is common cause that it initiated a
tender process for the re-development of the golf course
area, and
that the entire costs of the development would be at the cost of the
developer, DRT. In particular, it pointed
out that the
specifications provided for the alienation of the development site to
the preferred developer and that the site would
be developed
according to agreement for the provision of new civic offices, a
residential component as well as retail, recreational
and service
industry uses. The municipality points out crucially in its
heads of argument that the applicants do not take
issue with the
legitimacy of the tender process or that the tender was not properly
awarded to DRT. The applicants’
point of departure, as
interpreted by the municipality, is that the tender was put out on
the basis of a private public partnership,
as defined in s 121 of the
MFMA, where a private party acquires municipal property for its own
commercial purposes and assumes
the financial risks associated
therewith. The municipality’s position is that the
applicants have misconstrued the
entire process in that the tender
specifications did not envisage a public private partnership, but
rather it sought to dispose
of municipal land on the basis that the
successful tender would develop, at its own costs, new civic offices
for the municipality.
The municipality further submits that it
disposed of the property in a fair, equitable and transparent
process, consistent with
the provisions of s 14(5) of the MFMA, and
that the amount of R9 million paid by DRT was consistent with the
market related value,
which is confirmed by a valuer.
[16]
A reading of the applicants founding affidavit would suggest that its
case is essentially based on the contention that the
municipality
embarked on a tender process, in which DRT was eventually chosen as
the preferred bidder. Despite the development
being aligned to
certain key deliverables, the municipality simply disposed of the
property at a value below market related prices,
and absolved the
developer of its obligations to design and develop the site in
accordance with the tender specifications.
Despite the
applicants making repeated reference to an ‘unsolicited bid’
on the part of DRT, I find much difficulty
in appreciating how such a
bid would form part of the overall development scheme where it is not
denied that there was a public
invitation to tender, which a number
of bidders responded to. I fail to see on what basis it can be
said that DRT acquired
the property through an unsolicited bid, as
this argument is mutually destructive of the acknowledgment by the
applicants that
the municipality did initiate a public tender
process. Whether the final agreement reached between the
municipality and DRT
regarding the specifications as to what would be
developed on site is consistent with the tender specifications, is
entirely a
different case from that which emerges from the founding
affidavit.
[17]
In light of the above, the municipality contends that the challenge
mounted by the applicants is misconceived, and that they
have failed
to establish a prima facie right, let alone a clear right where they
seek a final interdict on the papers. Similarly,
the
municipality contends that no likelihood of irreparable harm has been
shown, nor does the balance of convenience tilt in their
favour as
the disposal of the site to DRT has not been shown to be below market
value and accordingly there can be no prejudice
suffered to the
applicants or to the general body of ratepayers within the
municipality.
[18]
DRT similarly interpreted the applicants’ founding affidavits
to contend that it had been awarded a tender for a public
private
partnership, which transformed itself into an unsolicited bid. It is
this unsolicited bid, so interpreted, which the applicants
contend is
legally impermissible and which must be reviewed and set aside.
DRT, correctly in my view, contends that the decision
to sell the
property to it was taken in October 2015 in terms of a resolution
passed by the municipality at a special council meeting.
As
such, DRT submits that any attempt to review and set aside the
decision to sell the property should have been launched within
180
days of the resolution being taken. As such, it does not follow that
the applicants had to wait until 17 January 2017 to launch
their
application. According to the applicants, it was only on 17 January
2017 that a decision was taken unconditionally to sell
the properties
in question to DRT.
[19]
Recognising that they would face difficulties in overcoming the delay
in bringing their review application, the applicants
in their
replying affidavit change course and instead contend that the
respondents have adopted an overly technical interpretation
of the
founding papers. The applicants contend that rather than
fixating on the terms ‘public private partnership’
and
‘unsolicited bid’, the substance of their argument is
that the sale agreement is deficient and falls to be reviewed
and set
aside. However, DRT submits that the concession made in the
replying affidavit by the applicants that they “
may have
been aware of the intention of the first respondent to sell the
properties
” to DRT, is foundational to their failure,
despite the assertion that they were never aware that such intention
had been
implemented.
[20]
DRT, like the municipality, contends that the applicants have not
made out a case that any of the decisions which they seek
to
challenge are reviewable. The sale of the properties, as
discussed earlier, was adopted by resolution in October 2015.
The time for reviewing that decision is well past 180 days, and there
is no application for condonation before me. Moreover,
the
reliance on the aspects of a ‘public private partnership’
and of the sale taking the form of an odious ‘unsolicited
bid’
appears to have been transcended by the terms of the sale agreement
between the municipality and DRT. Indeed,
when the matter came
before me I enquired from Mr
King
, who appeared for the
applicants, to clarify precisely what the applicants’ case was,
as it appeared to morph from one permutation
to another. In his
submission, it was only on 17 January 2017 that the applicants became
aware that the municipality had
in fact disposed of the property to
DRT without “strings attached”, and without the
obligation to ensure that the “non-negotiables”
in terms
of the tender specifications had to be complied with. These
non-negotiables included the building of a new civic
centre for the
municipality at the cost to the developer (DRT).
[21]
When pressed further for clarity on the applicants’ case,
counsel referred me to the provisions of the sale agreement
concluded
between DRT and the municipality concluded in February 2016 in
support of the argument that the municipality had failed
in its
obligation to hold DRT to the non-negotiable aspects of the tender
specifications. In this regard I was referred to clause
4 of the sale
agreement which provides that the property is sold on the express
understanding that it shall be used for a mixed-use
development, with
the object of ensuring job creation during and after the period of
construction. The pertinent provisions relevant
to the applicant’s
argument are the following:
‘
4.4
the purchaser shall, at its own costs, attend to the construction of
a
main civic office for the seller, which said office shall not
exceed 15,000 (15,000 thousand) square metres and shall be built on
the proposed portion 2 of the property as indicated in the diagram
annexed hereto marked D according to the specifications agreed
between the parties.
4.5
the parties shall make all efforts to reach an agreement within 360
days after the signature date, or such extended period as may be
granted by the seller to the purchaser in writing, the parties
conclude a written agreement in respect of the main civic office
regarding the following :-
4.5.1
the specifications with which the main Civic Centre must comply;
4.5.2
the rental and or purchase price and/or build operate transfer,
as
the case may be, in respect of the main civic centre.
4.6
in the event that the parties failed to reach an agreement on the
issues raised in clause 4.5 above, the purchaser must, at its own
costs, procure that the proposed portion 2 of the property as
subdivided and depicted in annexure D be transferred back to the
seller within a reasonable period….’
[22]
Counsel for the applicants submitted that the agreement merely
records what will be done by the parties, but contains no details
as
to the specifics of the development, such as what the mixed-use
component of the project would entail. More importantly, it
was
submitted that the agreement was defective as it omits to cater for
the civic centre, and merely states that if the parties
cannot agree,
all that DRT is required to do is to transfer that portion of the
property intended to be used for the centre, back
to the
municipality. As stated earlier, in terms of the tender
specifications, the development of a main civic office was
reflected
as a non-negotiable aspect of the tender proposal. On this
basis, counsel submitted that the applicants maintain
that the
municipality’s decision to entertain a purchase of the property
by DRT without agreement being reached on the provisions
of the new
civic offices, results in the sale of the properties on an
unconditional basis, and at variance to the basis on which
it was
originally put up for sale.
[23]
In my view, the case which counsel attempted to advance before me was
fundamentally different from that which is set out in
the founding
affidavit. As the respondents have contended, the founding papers and
to a lesser extent the applicants replying affidavits
are replete
with reference to DRT engaging in a public private partnership, and
later that it purchased the property in question
as an unsolicited
bid. In an attempt to counter the criticism of the applicants
changing their case, counsel submitted that the
applicants’
case all along has been that the sale agreement did not accord with
the tender specifications set out by the
municipality. I am not
persuaded by this argument nor of counsel’s contention that the
respondents have chosen to selectively
concentrate on certain
terminology to favour their argument.
[24]
It was further submitted that the applicants have satisfied the test
for a final interdict, and that they are entitled to play
a
supervisory role over the municipality’s functions, in
particular where the municipality steps outside of its mandated
role
to act in the best interests of its ratepayers. I should point out,
as an aside, that the municipality also has an obligation
to those
who are not ratepayers, especially those living in informal
settlements, who may not contribute financially to the municipality’s
coffers. I am however in general agreement with the sentiment
expressed by the applicants’ counsel that citizens cannot
be
expected to sit back and allow organs of state or local government to
flout the law particularly in respect of the disposition
of public
land. However the courts intervention must be premised on a factual
basis, made out in the founding affidavits of the
parties seeking the
assistance of the court.
[25]
The respondents contend that the applicants change of their case,
departing from their arguments of a private public partnership
and an
unsolicited bid, to focusing on the terms of the sale agreement
between the municipality and DRT, cannot be permitted and
constitutes
trial by ambush. In
Molusi & others v Voges NO &
others
2016 (3) SA 370
(CC), it was emphasised that a fundamental
rule of civil proceedings is that the parties must be appraised of
the case which they
are to meet and a party must formulate its case
so as to define the disputes for the other parties and for the
court. The
Court in
Molusi
held:
‘
[27] It is trite law that in
application proceedings the notice of motion and affidavits define
the issues between the parties and
the affidavits embody evidence. As
correctly stated by the Supreme Court of Appeal in
Sunker
[
Naidoo
and Another v Sunker and Others
[2011]
ZASCA 216]:
“
If an issue is not cognisable
or derivable from these sources, there is little or no scope for
reliance on it. It is a fundamental
rule of fair civil proceedings
that parties . . . should be apprised of the case which they are
required to meet; one of the manifestations
of the rule is that he
who [asserts] . . . must . . . formulate his case sufficiently
clearly so as to indicate what he is relying
on.”
[28] The purpose of pleadings is to
define the issues for the other party and the court. And it is for
the court to adjudicate upon
the disputes and those disputes alone.
Of course there are instances where the court may of its own accord
(mero motu) raise a
question of law that emerges fully from the
evidence and is necessary for the decision of the case as long as its
consideration
on appeal involves no unfairness to the other party
against whom it is directed. In
Slabbert
[
Minister
of Safety and Security v Slabbert
[2010]
2 All SA 474
(SCA)] the Supreme Court of Appeal held:
“
A
party has a duty to allege in the pleadings the material facts upon
which it relies. It is impermissible for a plaintiff to plead
a
particular case and seek to establish a different case at the trial.
It is equally not permissible for the trial court to have
recourse to
issues falling outside the pleadings when deciding a case.”’
(Footnotes omitted)
[26]
I am in agreement with Mr
Stokes
and Mr
Goddard
, who
appeared for the first and second respondents respectively, that the
interdict which has been sought by the applicants is
based on a
decision of the municipality, alternatively the Tender Adjudication
Committee, taken on 17 January 2017 to sell the
property in question
to DRT. The resolution is silent as regards the issues of a
public-private partnership or an unsolicited
bid. It is also
evident from the papers before me that no review has been sought in
terms of the sale agreement. As
set out above, the applicants
appear to take no issue with the tender process and the award of the
tender to DRT. Moreover, if
one has regard to the provisions of
clause 4.5 of the sale agreement, it is still open to the
municipality and DRT to reach agreement
on the issue of the civic
centre and other aspects of the tender specifications. It
cannot therefore be contended that the
position has been reached
where all that has been achieved by the disposal of the property is
the development of yet another shopping
mall.
[27]
The problem which confronts the applicants is that they approached
the court contending that the municipality invited tenders
to develop
certain properties and initiated a tender process. The process
took place (one must assume) in accordance with
the standards of
openness and transparency as no challenge has been mounted on that
front. The process resulted in DRT being
the successful
bidder. For reasons which the applicants do not set out, the
municipality abandoned the tender and disposed
of the property by
means of an unsolicited bid. It seems to me that these
arguments are mutually destructive of each other.
What possible
benefit could result by abandoning the tender process, part of which
is the conclusion of the sale agreement between
the parties where
further details can be added to the scope of work to be undertaken.
DRT was already the successful bidder.
What more advantage
could it have secured? Even if I am wrong on that score, the
case which the applicants attempted to make
out at the hearing was
substantially different from that which was foreshadowed in its
affidavits. It is worth noting that
even if the applicants
contend not to have had prior sight of the sale agreement, after the
municipality attached the agreement
to its answering affidavit, the
applicants still did not deal with the terms of the agreement in
their replying affidavit.
For those reasons alone, I am in
agreement with the respondents’ counsel that the application
for a final interdict must
fail. A further factor militating
against the applicants is that they have known of the sale agreement
since February 2016
and have only chosen to come to court a year
later.
[28]
As I have stated above, the applicants have not succeeded in
establishing the requirements for a final interdict and the balance
of convenience would rather favour DRT which stands to lose
substantial amounts with each passing week where construction has
come to a halt.
[29]
Counsel for the respondents submitted that the applicant should be
dismissed with costs, including that of senior counsel.
Mr
King
for the applicants conceded that if the applicants were unsuccessful,
costs should follow the result. In light of the constitution
of
the CCG, which I referred to earlier, I enquired from Mr
King
whether this was not a matter to which the issue of costs should be
guided by the Constitutional Court’s decision in
Biowatch
Trust v Registrar, Genetic Resources, and others
2009
(6) SA 232
(CC). I raised the applicability of
Biowatach
as
there was no evidence on my reading of the papers that any of the
applicants had launched this application for self-interest.
As
the Constitution of the CCG clearly states, their intention is to
hold the municipality and elected officials accountable for
their
actions. This is a vital ingredient if any democracy is to
develop in accordance with the rule of law. Mr
King
submitted that
Biowatch
would not find application in this matter which he described as a
“commercial matter” and because the relief sought
would
have no implications for those in the rest of the country. My
interpretation of the principles distilled from
Biowatch
is at variance to those of counsel for the applicants.
In
Biowatch
,
the court held that the general rule is
not
to award costs against unsuccessful litigants when they are
litigating against state parties and the matter is of genuine
constitutional
import. Although the applicants did not clearly
set out in their papers what constitutional right they sought to
assert,
they did contend that they had a right to hold the
municipality accountable to act in a fair and lawful manner where it
sought
to dispose of public land, in which the ratepayers have a
vested interest.
[30]
In
Ferreira
v Levin NO & others; Vryenhoek & others v Powell NO &
others
[1996] ZACC 27
;
1996
(2) SA 621
(CC)
the
long standing practice was affirmed that costs are in the discretion
of the
court
and, in general, the unsuccessful party must pay. The Court at
para 3 held:
'The [High] Court has, over the years,
developed a flexible approach to costs which proceeds from two basic
principles, the first
being that the award of costs, unless expressly
otherwise enacted, is in the discretion of the presiding
judicial officer,
and the second that the successful party should, as
a general rule, have his or her costs. Even this second principle is
subject
to the first. The second principle is subject to a large
number of exceptions where the successful party is deprived of his or
her costs. Without attempting either comprehensiveness or complete
analytical accuracy, depriving successful parties of their costs
can depend on circumstances such as, for example, the conduct of
parties, the conduct of their legal representatives, whether
a party
achieves technical success only, the nature of the litigants and the
nature of the proceedings.’ (Footnotes omitted)
[31]
In my view the application was misguided and veered from the position
of DRT being the beneficiary of an unsolicited bid for
public
property to the last position of the applicants attack on the
provisions of the sale agreement. As the respondents contended,
the
latter ground was not foreshadowed in the papers and was certainly
not the basis on which their answering affidavits had been
drafted.
Moreover, the applicants knew of the sale of the property to DRT
since February 2016 but only chose to bring an application,
on an
urgent basis, almost a year later. DRT contends that CCG was
formed for the particular purpose of objecting to the
development of
the shopping mall and have sought every opportunity to delay the
construction. My assessment of the applicants’
case is
that they were not, as Cameron J in
Giant Concerts
pointed out
at para 55, parties who were “merely toying with process, or
seeking to thwart a propitious public development
because it had been
made available to someone else”. Their concerns were bona
fide, albeit misguided. Whatever DRT
may suggest as a motive
attributable to the CCG, the third applicant has brought the
application in the spirit of holding the local
authority accountable
for its actions. None of the respondents have attributed any
ulterior motive to him.
[32] In
Lawyers for
Human Rights v Minister in the Presidency & others
2017 (1)
SA 645
(CC) the Constitutional Court reflected further on the
circumstances where costs could be awarded against an unsuccessful
party
advancing a constitutional or public interest argument.
It held:
‘
[17] In both
Biowatch
and
Helen Suzman Foundation
[
Helen
Suzman Foundation v President of the Republic of South Africa and
Others
2015 (2) SA 1
(CC)] this court emphasised that judicial officers should caution
themselves against discouraging those trying to vindicate
their
constitutional rights by the risk of adverse costs orders if they
lose on the merits. Particularly, those seeking to ventilate
important constitutional principles should not be discouraged by the
risk of having to pay the costs of their state adversaries
merely
because the court holds adversely to them.
[18] This, of course, does not mean
risk-free constitutional litigation. The court, in its discretion,
might order costs,
Biowatch
said, if the constitutional
grounds of attack are frivolous or vexatious, or if the litigant has
acted from improper motives or
there are other circumstances that
make it in the interests of justice to order costs. The High Court
controls its process.
It does so with a measure of flexibility. So a
court must consider the “character of the litigation and [the
litigant's]
conduct in pursuit of it”, even where the litigant
seeks to assert constitutional rights.’ (Footnotes omitted)
[33]
At the same time, the
Biowatch
principles should not be abused to avoid the consequences generally
attendant upon litigation. I do not believe that an award of
costs
against the applicants would have a chilling effect on them, or other
similarly situated civic associations from legitimately
challenging
governmental action or inaction. Such associations must heed
the warning issued by the Constitutional Court in
Lawyers
for Human Rights v Minister in the Presidency
supra
para 26 where it was stated that “a worthy cause or worthy
motive cannot immunise a litigant from a judicially considered,
discretionarily imposed adverse costs order”.
[34]
In the result, I make the following order:
‘
The application is
dismissed with costs, including costs of senior counsel, to be paid
by the applicants jointly and severally,
the one paying the other to
be absolved.’
_____________
M R CHETTY
Appearances
For
the Applicant:
J C King SC
Instructed
by:
Mather & Associates
c/o
A S Kander Attorneys
Sherwood
Ref: ASK/LS57
031 822 2825
For
the First Respondent:
A Stokes SC
Instructed
by:
Livingston Leandy Inc
La Lucia Ridge
Ref: Peter Andre/clg
031 536 7500
For
the Second Respondent: G D Goddard SC
Instructed
by:
Norman Brauteseth & Associates
Westville
Ref: Mr N Brauteseth
031 266 9300
Date
of hearing:
20 March 2017
Date
of Judgment:
21 April 2017