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[2016] ZAFSHC 2
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Badenhorst N.O. and Another v Moqhaka Local Municipality and Others (1019/2015) [2016] ZAFSHC 2; [2016] 3 All SA 723 (FB) (14 January 2016)
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IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: 1019/2015
In the
matter between:
REON
ESIAS BADENHORST
N.O.
1st Applicant
ZAFIRHA
INVESTMENT
CC
2nd Applicant
and
MOQHAKA
LOCAL MUNICIPALITY
1st
Respondent
DIE
UITVOERENDE BURGEMEESTER :
MOQHAKA
MUNISIPALITEIT
Mnr.
JUSTICE MAREKA
2nd
Respondent
MUNISIPALE
BESTUURDER MOQHAKA
MUNISIPALITEIT:
Mnr MNCEDISI SIMON
MQWATHI
3rd Respondent
CORAM:
RAMPAI, J
HEARD
ON:
8 OCTOBER 2015
JUDGMENT
BY:
RAMPAI, J
DELIVERED
ON:
14 JANUARY 2016
[1]
The matter came to court by way of motion proceedings. The
relief sought by the applicant was two-fold. Firstly,
the
applicants apply for an order whereby the respondents are declared to
be in contempt of court and punitively fined. Secondly,
they
apply for an order whereby certain railway siding tariffs imposed in
respect of four specific erven for the three consecutive
financial
years are reviewed, declared ultra vires and the respondents directed
to refund any money so paid to the applicants.
The respondents
oppose the
application.
[2]
The first applicant was personified by three individuals cited in
their representative capacities as the trustees of Renhof
Badenhorst
Family Trust TT1765/2000. The full names and physical addresses
of the trustees were set out in para 2.1.
The trio was
collectively referred to as the first applicant. However, the
face of the 1
st
applicant was Mr Reon Esias Badenhorst NO, the first applicant’s
deponent.
[3]
The second applicant was a business enterprise known as Zafirha
Investment CC whose principal place of business was situated
at
Andries Steyn Gebou Cross Street Kroonstad Free State Province.
[4] It
appeared that Mr Rean Esias Badenhorst was also authorized on the 13
April 2011 to act as a trustee of RBF Trust. It
also appeared
that he was authorised on the 26 February 2015 by the board of
trustees to launch this application as per resolution
(anx rb1(a)).
However the respondents questioned the validity of his alleged
authority.
[5]
The second applicant’s certificate of incorporation was issued
on 6 November 2003 – (anx rb2(b)). Mr Abdul
Kader
Noorbhai and Ms Hajerabibi were Zafirha’s members. Mr
Reon Esias Badenhorst was apparently authorized on 26 February
2015
by the board of members to file this application of its behalf.
The required resolution was attached as anx rb 2(a).
The
respondent also questioned the validity of his alleged authority.
[6]
The first respondent is Moqhaka Local Municipality, a statutory organ
and a legal person establish in terms of section 12 Local
Government: Municipal Structures Act 117 of 1998. Its
offices are in Hill Street Kroonstad. Again the respondent
questioned the correctness of the first respondent’s citation.
[7]
The second respondent is Mr Justice Mareka. He is sued and
cited in his representative capacity as an executive mayor
of Moqhaka
Local Municipality, the first respondent.
[8]
The third respondent is Mr Mncedisi Simon Mqwathi. He is sued
and cited in his representative capacity as the municipal
manager of
Moqhaka Municipality, the first respondent.
[9]
The trust called Renhof Badenhorst Family Trust consists of 3
trustees. The trio is collectively cited as the first
applicant.
The closed corporation called Zafirha consists of 2
members. The corporations is cited as the second applicant.
The
applicants together instituted the current proceedings against
the 3 respondents, Moqhaka Local Municipality, Mr Justice Mareka,
the
executive mayor and Mr Mncedisi Simon Mqwathi, the municipal manager.
[10]
The relief sought by the applicants is twofold. The applicants
principally seek an order whereby the respondents are
held to be in
contempt of court and a punitive fine of R100 000 imposed on
each of them. The first category of the relief
is encapsulated
in paragraph 1, 2 and 3 of the notice of motion. It is evident
that the first category is directed at all
the respondents.
[11]
In the second place, the applicants residually seek an order whereby
the railway siding tariffs imposed by the municipality
on the
applicants for the financial years 2012/13, 2013/14 and 2014/15 in
respect of erven [....], [....], 1545 and [....] Kroonstad
are
declared to have been unlawfully imposed and set aside. This
second category of the relief is encapsulated in paragraph
4, 5 and 6
of the notice of motion. It is evident that the second category
concerns the first respondent only.
[12]
Murray AJ adjudicated the previous application in favour of the
applicants. Her judgment was delivered on 13 September
2013.
It was attached to the founding affidavit as (anx rb4).
The material aspects of the court order were:
12.1
That the railway siding tariffs imposed in respect of erven 1545,
[....], [....] and [....] were unlawfully imposed and
that they were,
therefore, set aside;
12.2
That the municipality must reserve all the amounts by which the
accounts of the applicants were debited for the financial
years
2009/10, 2010/11 and 2011/12 by crediting them with corresponding
amounts;
12.3
That the municipality must pay the amounts of railway siding charges
debited against the accounts of the applicants for
the aforesaid
financial years back to the applicants with interest.
[13]
In the founding affidavit the applicants’ deponent alleged that
the trust was the registered owner of erf [....] size
7231 square
meters; erf [....] size [....] square meters and erf [....] size
1,9022 hectares. All of those erven were situated
at (Extension
11) district Kroonstad province Free State. The deponent also
alleged that the second applicant , the closed
corporation, was the
registered owner of erf [....] district Kroonstad province Free
State. From now on I shall collectively
refer to the 4 erven as
the property.
[14]
The deponent for the applicants also alleged that the current
applicants in collaboration with Selborne Hotel (Pty) Ltd launched
an
application against Moqhaka Local Municipality on the 25 February
2015 under case number 744/2013. I shall refer to those
proceedings as the previous application. Selborne Hotel (Pty)
Ltd, the second applicant in the previous application, had
since sold
its property, erf [....], that formed part of the subject matter in
the previous application. Consequently that
corporate persona
had no further interest in the current application which is an
offshoot of the previous application.
[15]
The notice of motion relative to the previous application was
attached to the current application as “anx rb3”.
The notice was crafted as follows:
“
1.
‘n Bevel dat:
1.1
alle belastings, heffings en/of tariewe soos gehef onder die kodes
“
SU”,
“sylyn erf”, “Users Levy”
en
“
Rental”
soos
uiteengesit in aanhangsels “
RB2a,
RB2b, RB2c, RB3 en RB4”
tot die meegaande funderende eedsverklaring (
die
sylyntariewe
),
asook
1.2
alle belastings, heffings en/of tariewe, uitgesonderd belastings,
heffings en/of tariewe ten opsigte van elektrisiteit,
water,
saniteit, vullisverwydering en BE (soos omskryf in paragraaf 3.4.1.5
van die meegaande funderende eedsverklaring) (
die
normale belasting en tariewe
)
wat tot datum van hierdie aansoek deur die respondent ten opsigte van
die eiendom gehef is;
met betrekking tot Erf
[....] Kroonstad (uitbreiding 11), Erf [....]
Kroonstad (uitbreiding
11), Restant van Erf [....], Kroonstad, Erf
[....], Kroonstad en Erf
[....], Kroonstad, distrik van Kroonstad,
provinsie
Vrystaat (
die
eiendom)
ultra
vires
verklaar word.
2.
‘n Bevel ingevolge waarvan die respondent beveel word om alle
bedrae wat deur die applikante
ten opsigte van sylyntariewe, asook
die rente daarop, aan die respondent betaal is, aan die applikante
terug te betaal.
3.
‘n Bevel ingevolge waarvan die respondent beveel word om alle
bedrae, asook die rente daarop
wat deur hom teen die applikante
gedebiteer is as sylyntariewe, terug te skryf en die applikante se
rekening daarmee te krediteer.
4.
‘n Bevel ingevolge waarvan die respondent beveel word om die
koste van hierdie aansoek te
betaal op ‘n skaal soos tussen
prokureur en eie kliënt.
5.
Verdere en/of alternatiewe regshulp.
The
municipality opposed the previous application.
[16]
The applicants alleged that the first respondent failed to comply
with the aforesaid court order. As a result of such
failure,
the trust instructed its attorney to take steps to compel the first
respondent to comply. Pursuance to those instructions,
Attorney
HSL du Plessis addressed a letter (anx rb5) to the first respondent
on 1 September 2014. He pointed out that the
first respondent
was in possession of the judgment by Murray AJ under case number
744/2013 delivered on 13 September 2013; that
certain employees of
the first respondent were aware of the court order; that they
were making themselves guilty of contempt
of court through their
persistent disregard of the court order and that the trust demanded
compliance with the court order by Friday
12 September 2014. On
behalf of Zafirha, the same attorney addressed a similar letter to
the first respondent on 16 October
2014 (vide anx rb6).
[17]
The aforesaid deadline came and went. The first respondent did
not comply. The demands of the trust (anx rb5) and
those of the
close corporation (anx rb6) elicited no satisfactory response from
the municipality to the dismay of the applicants.
Instead the
municipality continued to bill the applicants as before the court
order was given.
[18]
The applicants alleged that, subsequent to the court order, the
respondents merely readjusted the tariffs in respect of the
railway
sidings without any attempt to implement
de
novo
the legally required promulgation process. They asserted that
the imposition of railway siding charges which the municipality
continued living on them in connection with their industrial
properties since 13 September 2014 was unlawful. By so doing,
the applicants contended that the respondents wilfully and unlawfully
disobeyed the court order.
[19]
In the answering affidavit the respondent denied all the allegations
that one, or two or all of them deliberately refused to
comply with
the court order by Murray AJ. Although they confessed that they
did not comply, they averred that their actions
were not actuated by
any deliberate and mala fide intention to violate the dignity, repute
or authority of the court.
[20]
As regards the third respondent, the respondents alleged that since
he was not cited as a party in the previous application
he could not,
without more, be cited as a party to the current application.
They also added that since he was cited in his
representative
capacity as the municipal manager, he could not be personally
criminalized and sanctioned. They maintained
that the
management of financial affairs of the municipality in general was a
matter that fell within the chief financial officer’s
scope of
responsibilities and not the municipal manager’s. They
stated that all legal processes were handled by the
department:
corporate services of the municipality and not the municipal manager.
[21]
The respondent denied that the court order was ever served on the
third respondent personally. However, they admitted
that the
third respondent was made aware of the court order by the responsible
staffers in the department: corporate services.
He was
not intimately involved in the matter afterwards. He expected
that the department: corporate services would,
in the ordinary
scheme of things, liaise with the department: municipal finance
in order to implement the court order.
[It was not until the
current application was served on the respondents that the third
respondent became aware that the court order
had not been carried
out.]
[22]
The respondent’s deponent explained that all the correspondence
exchanged between the attorney for the applicant’s
and the
municipality were handled by the administrative official in the
relevant department. In the ordinary course of events
he signed
certain letters on the strength of the information provided to him by
such officials.
[23]
He expected his subordinates, who were responsible and qualified
officials, to comply with the court order. It was never
brought
to his attention that the court order could not be carried out for
some or other reason. He stressed that, as a municipal
manager,
he never instructed any official to disobey the court order or caused
the court order to be disregarded. As a municipal
manager
he never deliberately violated the court order. He was unaware
that the court order had not been carried out until
the current
application was brought to his attention.
[24]
As regards the second respondent, the respondents’ deponent
alleged that since the second respondent was cited in his
representative capacity as the executive mayor, he too could not be
properly criminalized and sanctioned. He too was not
cited as a
party in the previous application. He alleged that, as in his
case, the court order was not similarly served on
the second
respondent. He elaborated that the second respondent was not
even in the employ of the municipality at the time
the previous
application was instituted against the first respondent. He
stated that the second respondent was appointed
the executive mayor
long after the court order had been granted. Therefore, the
deponent contended that the second respondent
had no direct knowledge
of the previous application and the relative court order until the
current application was brought to his
personal attention.
[25]
Some information concerning the previous application were, at one
stage, included among the reading packs that were disseminated
among
the members of the municipal council prior to council meetings.
In that way the second respondent might have come across
some
information about the court order. All the same he maintained
that the second respondent never caused the court order
to be
disregarded or instructed anyone not to comply with it.
[26]
As the executive mayor, the second respondent was not involved in the
finance department of the first respondent or in the
accounting
systems. There was a department specifically authorized and
tasked to attend to the accounting business of the
first respondent
as there was a department specifically authorized and tasked to
receive and to attend to court orders. The
executive mayor was
not a kind of a watchdog to see to it that each and every person in
those departments does his or her job.
It was absolutely
impractical for an executive mayor of such a huge municipality to
oversee compliance by all the officials in
the various departments of
the first respondent.
[27]
As regards the first respondent, the respondent’s deponent
alleged that the first respondents credit control and debt
collection
by-law contained complaints and appeal procedure. Such by-law
published in the provincial gazette number 36 of
the Free State on 14
May 2004. Provision for customers queries, complaints and
appeals was made in Part 5 Provincial Gazette
No 36/2014. The
applicants, so he objected, did not follow the prescribed procedure
in order to afford the first respondent
the opportunity of
investigating the alleged inaccuracies of the monthly statements of
account in respect of the railway siding
charges.
[28]
The respondents deponent also pointed out that although the first
respondent regularly rendered monthly accounts to the first
applicants in respect of railway siding charges in connection with
the three financial years as specified in the court order,
the first
applicant neglected to pay any of the accounts so rendered in respect
of all its three industrial properties. Once
again the
applicants withheld those facts from the court. The first
applicant, unlike the second applicant, was therefore,
not entitled
to any credit or refund whatsoever in terms of the court order.
[29] On behalf of the
first respondent the deponent indicated that the first respondent had
since revised its accounts sent to each
of the two applicants for the
three financial years 2009/10, 2010/11 and 2011/12. The precise
details as to how each account
in respect of each particular
industrial property was credited with the reversed amounts for
railway siding charges and interest
thereon appeared from “anx
aa1”, “anx aa2”, “anx aa3” and “anx
aa4”.
Since
the first applicant did not pay any municipal account for 3
consecutive years immediately preceeding the court order, it received
zero refund (vide anx aa1, anx aa2 and anx aa3). The second
applicant received a refund of R10 418.59 because it had
paid
the municipal accounts during the same period (vide anx aa4).
[30]
The crediting and refunding was done in accordance with the first
respondents understanding of the court order. Such
interpretation was confirmed as correct by the legal opinion the
first respondent obtained in order to clarify the dispute between
the
then parties. The first respondent’s attorney furnished
the attorney for the applicants with a copy of the legal
opinion,
(anx aa5). On 4 March 2015 the applicants launched the current
application. After the sheriff had served the
current
application on the first respondent, the first respondent did the
crediting and refunding in terms of the court order relative
to the
previous application. The opinion by senior counsel confirmed
the limitation of the retrospective operation of the
court order in
accordance with the interpretation by the respondents.
[31]
In the replying affidavit the applicants deponent replied that the
respondents deliberately violated the court order whereby
the railway
siding tariffs applied to debit the accounts of the applicants were
declared unlawful and set aside.
[32]
As regards the first respondent, the applicants pointed out that the
first respondent was obliged in terms of the court, to
credit the
accounts of the applicants with the wrongful debits made during the
three financial years 2009/10, 2010/11 and 2011/12.
Moreover,
the first respondent was also obliged to refund with interest all the
payments made by the applicants during the same
period. They
denied the allegation that they demanded, on the strength of the
court order, that the first respondent had
to credit all the accounts
for the period longer than the period mentioned in the court order
and to refund all the payments made
during the same period.
[33]
It was never their case, so they replied. Their case, they
stressed, was that the railway siding charges imposed by the
first
respondent after the 2011/2012 financial year were unlawful seeing
that Murray AJ had declared all the tariffs as embodied
in “anx
06” null and void and that she had set them aside. They
asserted that the nullification and rescission
was not confined to
the railway siding charges imposed only for the 3 financial years
specified in the court order, being 2009/2010,
2010/2011 and
2011/2012.
[34] The applicants
contended that the first respondent continued to implement increased
railway siding tariffs notwithstanding
the court order that nullified
and rescinded the official tariffs schedule, “anx o”.
Such conduct was indicative
of the determination of the respondents
to disregard the court order.
The
applicants’ deponent admitted that the first applicant did not
pay any municipal account rendered by the first respondent
during the
period of 36 months immediately preceding the court order but alleged
that it was not obliged to pay.
[35]
The applicants replied that the allegation by the respondents that
the belated compliance with the court order was brought
about by the
uncertainty of its interpretation, was a lame excuse. Firstly
they pointed out that the respondents never disputed
that the
crediting and refunding had to be done. Secondly, they pointed
out that notwithstanding their appreciation of those
undisputed legal
obligations, they took their time to actually do the crediting and
refunding. They pointed out that the
respondents performed
those obligatory acts after the current application was served on
them.
[36]
They contended that since Murray AJ had nullified the entire railway
siding tariff as such and set it aside the first respondent
had acted
unlawfully and contemptuously in that the first respondent simply
carried on annually adjusting railway siding tariffs
which no longer
legally existed and imposing such increased railway siding charges on
the applicants after the court order had
been granted. They
alleged that such conduct indicated that the municipality
deliberately refused to respect and execute
the court order. In
view of all this, they concluded that the first respondent was also
obliged to refrain from debiting
the applicants in respect of the
accounts rendered by the first respondent, post the financial year
2010/13, an obligation which
according to their own version was never
carried out.
[37]
They denied the allegation that they ever demanded from the first
respondent to credit them for the period prior to 2009/10
financial
year. The only exception in respect of which they made such
demands concerned the issue of clearance certificates.
Such an
exceptional demand was based on the provisions of sec 118 The Local
Government: Municipal Systems Act 32/2000.
[38]
The applicants also denied the allegation that the first respondent’s
tariff policy, “anx rb14” which concerned
the levying of
taxes, charges or tariffs for the municipal services for the
financial year 2012/13 complied with the Provisions
of Local
Government: Municipal System Act 32/2000 and that it reflected
the principles encapsulated in sec 74(2) and sec
74(3) of that
statue.
[39]
As regard the second respondent, the applicants’ deponent
repeated that the second respondent was the co-chief executive
officer of the municipality and that he was constitutionally required
to see to it that the decisions of the first respondent’s
municipal council, as well as the court orders against the first
respondent, were carried out. He stressed that the second
respondent was aware of the court order and that he supported the
first respondent’s refusal to carry it out. The second
respondent was not prepared to respect the court order. He
stated that the second respondents interpretation of the previous
judgment was incorrect; that the judgment was applicable to the
period after 2011/12 financial year; that the applicants
did
not demand to be credited and refunded in respect of the period
before the 2009/10 financial year; that the second respondent
was obliged to ensure that the applicants were also credited and
refunded for the period after the 2011/12 financial year;
that
the second respondent deliberately refused to have such crediting and
refunding acts performed by and on behalf of the first
respondent.
Consequently the applicant’s contended that the second
respondent was also guilty of contempt of court.
[40]
As regard the third respondent, the applicant’s deponent
repeatedly replied that, the third respondent, as the municipal
manager, was responsible for the accounting obligations of the first
respondent as the local government. The admission by
the third
respondent that the court order was not honoured before the current
application was launched, was once again indicative
of the third
respondents deliberate refusal to comply. The third
respondent’s allegation that he could not understand
why the
current contempt application was instituted against the respondent
was surprising, the deponent replied. He pointed
out that the
undeniable facts of the matter showed that the accounts of the
applicants were not credited; that there was
no money refunded
to the applicants; that the applicant’s local attorney pointed
out to the first respondent that the court
order had contemptuously
been disregarded and that further legal steps would be taken.
He alleged that since the correspondence
by the applicant’s
local attorney was ignored, the applicants had no alternative remedy
other than launching the current
contempt application (vide 6.1 anx
rb5).
[41]
The essence of the factual allegations levelled as against the second
respondent were also levelled against the third respondent.
[42]
It was common cause that the first applicant owned 3 industrial
properties technically known erf [....], erf [....] and erf
[....]
Kroonstad; that the second applicant owned 1 industrial property
technically known as erf [....] Kroonstad and that Selbourne
Hotel
(Pty) Limited owned 1 industrial property technically known as erf
[....] Kroonstad. That was the state of affairs
before the
previous application was launched during the calendar year 2013.
Those 5 erven were situated within the municipal
jurisdiction of the
first respondent. Originally all those 5 properties were
connected to the main railway track by means
of subsidiary railway
lines technically termed sidings. Later on but still before the
previous application was launched,
the railway siding on the first
applicant’s erf [....] was removed with the consent of the
first respondent. Where
the siding once was on that industrial
property, a building structure, approved by the first respondent, was
erected.
[43]
The first respondent was obliged to maintain the railway sidings.
For rendering such municipal services in connection
with the railway
sidings, the first respondent was entitled to impose railway siding
charges on the owners of such industrial properties
and to collect
such charges as part of municipal revenue. Over the years there
were apparently some relatively cordial dealings
between the first
respondent as the supplier of such railway siding services and the
property owners as the consumers of such services.
All that
dramatically changed when the first applicant applied for the
clearance certificates in order to sell its industrial properties,
erven 1545 and [....]. The first respondent informed the first
applicant that its accounts were in arrears. The first
applicant queried the enormous sums of the alleged arrears.
[44]
The stand-off or impasse precipitated the previous application for a
declaratory order. The current application revolves
around the
court order given in favour of the aforesaid 3 consumers against the
supplier. The court declared, per Murray
AJ, that the first
respondent had unlawfully imposed railway siding charges on the 3
consumers. It then nullified such charges,
set them aside,
directed the supplier to reverse the railway siding charges debited
to their accounts in respect of a 3 year period
immediately preceding
the 2012/2013 financial year; to credit the accounts of the 3
consumers accordingly; and to refund the credit
balances of such
railway siding charges to them with interest in respect of those
specified years. The second respondent
was not involved in the
previous proceedings but the third respondent was.
[45]
The court order was not carried out by the first respondent. In
the current contempt application the mayor and the municipality
were
cited together with the municipality as the second respondent and the
third respondent respectively. Subsequent to the
launch of
these contempt proceedings, the first respondent complied with the
previous court order. Before then the respondent
sought and
obtained a legal opinion to obtain clarity of the court order.
They furnished the applicants with a copy thereof.
The
applicants did not respond. The applicants warned the
respondents that they would take further legal steps against them
unless the court order was complied with. There was no
immediate reaction from the first respondent to the letter “anx
rb5”.
[46]
This brings to an end my summary of the factual allegations
pertaining to the first category relief. A brief overview
of
the principles of law applicable to this type of legal proceedings
appears to be necessary.
[47]
It must be constantly borne in mind that, although these proceedings
have all the conventional hallmarks of a civil matter,
they have a
very strong criminal essence –
Fakie
NO v CC II Systems (Pty) Ltd
[2006] ZASCA 52
;
2006 (4) SA 326
(SCA). That nature of these contempt
proceedings is a material consideration. The outcome of the
application may have
serious civil as well as criminal
repercussions. Quite often where one walks such a tight rope an
even balance is difficult
to maintain. One has to tread lightly
and with care.
[48]
In
Pheko
& Others v Ekurheleni Metropolitan Municipality (No 2)
2015 (ZACC 10) [1] we were reminded that contempt of court entailed
the commission of an act or the utterance of a statement, that
displays disrespect for the authority of the court as a stabilizing
social instrument for orderliness in society. It entails
two
senses or aspects of contumacy: being wilful disobedience and
obstinate resistance to lawful court order. Wilful
disobedience
of a court order made in civil proceedings is contemptuously
criminal. The object of contempt is to have a punitive
criminal
sanction imposed on the wilfully disobedient or obstinately resistant
recalcitrant in order to reclaim the honour of the
court and to
compel performance in accordance with the previous court order.
[49]
The eminent judge had this to say about wilful disobedience, dignity
and authority of the court and the enforcement thereof:
“
[1]
The rule of law, a foundational value of the Constitution, requires
that the dignity and authority of the courts be upheld.
This is
crucial, as the capacity of the courts to carry out their functions
depends upon it. As the Constitution commands,
orders and
decisions issued by a court bind all persons to whom and organs of
state to which they apply, and no person or organ
of state may
interfere, in any manner, with the functioning of the courts.
It follows from this that disobedience towards
court orders or
decisions risks rendering our courts impotent and judicial authority
a mere mockery. The effectiveness of
court orders or decisions
is substantially determined by the assurance that they will be
enforced.”
Nkabinde
J in
Pheko
,
supra
,
[1]
[50]
It is incumbent upon the applicant, to prove the requisites of the
contemptuous offence. The applicant is required to
establish
beyond reasonable doubt that a lawful court order was indeed given
against the respondent; that such order was
duly served on the
respondent or that the respondent was duly given notice thereof;
that the respondent did not comply with
such order notwithstanding
his knowledge thereof; that the respondent’s
non-compliance was occasioned by wilful disobedience
and that
the respondent’s conduct was actuated by
mala
fides
,
Fakie,
supra
,
[42]. It follows that the application must fail, should the
applicant fail to discharge such onus on the required standard
of
proof.
[51]
The distinguish judge, Cameron J, qualified the applicants onus as
follows:
“
(a)
But once the applicant has proved the order, service or notice, and
non-compliance, the respondent
bears an evidential burden in relation
to wilfulness and mala fides: should the respondent fail to advance
evidence that establishes
a reasonable doubt as to whether
non-compliance was wilful and mala fide, contempt will have been
established beyond reasonable
doubt..”
[52]
It has previously been held, on more occasions than one, that in
order to have the failings of a local government properly
attributed
to its responsible public functionary, the applicant is required to
have such functionaries personally and properly
joined to contempt
proceedings, that primarily concerned the governmental organ in
question. The underlying idea is that
they should be given an
opportunity of giving their explanation for the alleged
noncompliance.
Pheko
,
supra
,
[56] – [60];
Jayiya
v MEC Welfare Eastern Cape & Another
2004(2) SA 611 (SCA);
MEC
Department of Welfare Eastern Cape v Kate
2006(4) SA 478 [30] – [31].
[53]
In the first place I proceed to consider the alleged contemptuous
conduct of the first respondent. It was common cause
between
the first respondent and the applicants that the first three
requisites of the offence of contempt had been established
beyond
reasonable doubt by the applicants. Therefore, the real live
issue here was whether the first respondent had or failed
to
establish or the evidential burden in relation to wilfulness and
mala
fide
presumed to have underlined its non-compliance.
Fakie
N.O. v C11 Systems
,
supra
.
[54]
On behalf of the applicant Mr
Knoetze
argued that the first respondent failed to tender evidence that
justified its admitted failure to comply with the proven lawful
order. The final submission by counsel was that the first
respondent was accordingly guilty of contempt of court.
[55]
On behalf of the municipality, Mr Claasen argued that the contention
of the applicant that the first respondent had failed
to present a
sound explanation for its non-compliance was not correct.
Although the first respondent did not expeditiously
comply with the
court order, counsel contended that it could not be concluded from
such non-compliance that the conduct of the
municipality was both
wilful and
mala
fide
.
He submitted that since the first respondent’s actions were
bona
fide
and unwilful they constituted no contempt.
[56]
A total of 23 annexures were attached to the founding affidavit.
Of those 16 concerned the second category relief.
Only the
remaining 7 annexures really concerned the first category relief –
in other words – the contempt component
of the current
application. It will be recalled that the judgment from which
the court order stemmed was delivered on 13
September 2013. For
months the court order was not obeyed
by
the municipality, the respondent whose primary obligation it was to
obey the binding order lawfully issued by the court. A considerably
long period of almost 12 months lapsed. What actually transpired
between the applicants and the first respondent during that period
appeared nowhere in the founding affidavit.
[57]
On the 1 September 2014, approximately 12 months since the court
order was granted in favour of the applicants, the first applicant
complained, for he very first time about the municipalities
disobedience thereof. Attorney HSL du Plessis protesting on behalf
of
the first applicant wrote:
“
6.1.
From the accounts rendered after the Court Order and by submitting
the aforementioned clearance certificates, it is clear
that you have
failed to implement the relevant provision of the Court Order and
more particularly
Messrs
R Meyer and R Odendaal
are actively ignoring the Court’s Order and are thereby making
yourself (and themselves) guilty of the
Contempt
of a Court Order
(It is hereby recorded that the said Messrs R Meyer and R Odendaal
were privy to the Court Order as early as the beginning of this
year).”
[58]
Something
more needs to be said about “anx rb5”. It was a six
page document. It was type-written and consisted
of 11 distinct
paragraphs. The complaint that the municipality had
contemptuously disobeyed the court order was written down
in 7 lines
only. The passage labelled as para 6.1 occupied less than a
quarter of a page. It was, therefore, fair to
say that “anx
rb5” had more to do with the review component than the contempt
component of these procedures.
The attorney specifically
identified responsible officials of the municipality who had direct
dealings with him, and indicated
that they only became aware of the
court order “as early as the beginning of this year”. The
reference to the year
meant the year 2014. However, the precise
meaning of the expression “the beginning of the year” was
rather vague. It
seemed to me that any date from 1 January 2014 and
the 30 April 2014 would probably qualify. The comments I have made as
regards
para 6.1. “anx rb5” and the first applicant
applied with equal force to the second applicant and paragraph 4.1
“anx
rb6”, the second applicant’s complaint dated
16 October 2014. The ambivalent nature of “anx rb5”
was, however, not that material.
[59]
The
material consideration was that the first applicant waited for almost
twelve months before it demanded from the first respondent
compliance
with the court order. The question was why? In the answering
affidavit the first respondent denied the allegation that
it was in
wilful default and gave the following explanation:
“
25.2.7
The applicants, as aforesaid, have not conveyed to the court that
there was an
unabated dispute between the parties in regard to the
interpretation of the court order. The view of the applicants
was that
the first respondent was obliged to credit not only
2009/2010, 2010/2011 and 2011/2012, but also all the previous years.
The applicants however did not approach the court to clarify the
court order. The first respondent however obtained the opinion
of senior counsel confirming an interpretation of the restrictive
retrospective aspect of the order. This opinion was provided
to
applicants’ attorney. I attach hereto a copy of the
opinion in fact received from senior counsel who had acted in
the
preceding matter as annexure
AA5
.
Further annexure
RB5
to the founding affidavit shows that the applicants were aware of the
reservations the first respondents has about the interpretation
they
contend.”
[60] The applicants
denied the first respondent’s aforesaid allegations. They
replied in the following manner:
“
21.4
Die respondente poog om ‘n dispuut daar te stel betreffende die
interpretasie van die Hogbevel
en voer ek respekvol aan dat daar geen
twyfel kan wees aangaande die interpretasie daarvan
nie.”
[61]
The
applicants amplified their reply further at paragraph 21.6 of the
replying affidavit. They said:
“
21.6
Die applikante neem kennis van die opinie soos vervat in Aanhangsel
“AA5” maar stem nie daarmee
saam nie. Regsargument
in hierdie verband sal by die aanhoor van die aansoek aan die
bogenoemde Agbare Hof voorgedra word.”
[62]
Although
the applicants denied that they and the municipality differently
interpreted and understood the court order, they did not
pertinently
deny that the conflicting understanding gave rise to a dispute of
interpretation. They merely tried to trivialize the
dispute.
Moreover, they also did not pertinently deny that there was mutual
agreement reached to seek clarity of the court order.
They also did
not deny that the respondent did send a copy of the legal opinion to
them in due course. What they point out was
that they did not agree
with the first respondent as far as the correctness of the written
legal opinion (anx rb5) was concerned.
That, however, was besides the
point.
[63]
At par 25.5 answering affidavit the respondents alleged:
“
25.5
Messrs Meyer and Odendaal verbally communicated with attorneys acting
for the applicants
who acknowledged that clarity should be obtained.
The present application for contempt of court is therefore puzzling.”
[64]
The reply of the applicants to the aforesaid allegation was:
“
24.1
Ek verstaan nie op grond waarvan die deponent beweer dat hierdie
aansoek vir minagting
van die Hof vir hom onverstaanbaar is nie –
dit nadat hy self erken het dat die hofuitspraak nie nagekom is nie,
deurdat
die applikante se rekeninge nie gekrediteer is nie en die
fondse nie terugbetaal is nie. Die respondente se verbasing val
verder vreemd op gesien in die lig daarvan dat Du Plessis in sy
korrespondensie aan die eerste respondent dit duidelik gestel het
dat
die Hofbevel geminag word en stappe daaromtrent geneem sal word en
verwys ek die Agbare Hof eerbiediglik na aanhangsel.
“RB5”
en meer in die besonder paragraaf 6.1 daarvan.”
[65]
The reply of the applicants was more significant for what it did not
say than what it said. They did not at all deny that the
first
respondent’s responsible officials, namely Mr Meyer and Mr
Odendaal and the applicants attorneys verbally communicated
and
mutually agreed that clarity should be obtained as to the precise
ambit of the court order. Since that crucial allegation by
the first
respondent was not denied by the applicants, it had to be accepted as
a true averment.
[66]
Given the peculiar circumstances of this particular matter, I am
persuaded by the version of the first respondent. It seemed
to me
that there was a genuine dispute as regards the precise ambit of the
court order. According to the applicants the court
order was
not only retrospective but also prospective. For instance, the
applicant’s attorney affirmed this. He wrote:
“
4.3.1
In respect of the 2009/2010, 2010/2011 and 2011/2012 financial years,
client is not indebted to you as far
as siding charges are concerned;
4.3.2
In respect of the period post the 2011/2012 financial year, no
charges are due by reason of
the fact that the charges were set
aside;”
[67]
I hasten to mention that paragraph 4.3.2. was not apparent
ex
facie
the court order itself. The applicant’s stance further
fuelled the fire of dispute. They sought to broaden the
ambit
of the court order through the importation of findings implicitly
extrapolated from paragraph 81 of the main judgment.
I express
no view as to whether the court order could or could not be so
broadened. It is enough to say that the attempt by the
applicants to
prospectively broaden the ambit of the court order did little to
resolve the impasse that already polarised the parties
as to how far
retrospective the court order was. It made the uncertainty and
confusion worse.
[68] I
am further persuaded that the parties mutually agreed to obtain legal
opinion; that it was implicitly if not expressly understood
by the
parties that the implementation of the court order would be held in
abeyance pending its clarification by senior counsel;
that the first
respondent sought and obtained legal opinion as agreed; that first
respondent furnished the applicants with a copy
thereof; that first
respondent waited to hear from the applicants in connection with the
legal opinion; that the applicants did
not react pertinently to the
legal opinion as the first respondent had expected; and that,
instead, the applicants later
brought the current application.
In those circumstances, I understand why the first respondent was
taken aback by the contempt
component of the current application.
[69]
Given all those material considerations I am of the view that it
cannot objectively be said that the first respondent wilfully
disobeyed the court order. Deliberate disobedience requires that the
refusal to obey should be both wilful and
mala
fide
in
in order to constitute contempt. Unreasonable non-compliance or
unreasonable disobedience does not constitute contempt provided
it
was
bona
fide
.
The first respondent was not saddled with a legally heavy evidential
burden to disprove, on a balance of probabilities, the requirements
of wilfulness and
mala
fide
on its part. The first respondent was required by law to merely
advance evidence that established a reasonable doubt, about the
wilfulness and bad faith presumed from its proven disobedience
Fakie
,
supra
.
I am of the opinion that the first respondent advanced
evidence, much more compelling than the law requires, that
substantially
established reasonable doubt. The reasonably innocent
explanation given by the first respondent means that the applicants
have
failed to prove all the requisites of contempt beyond reasonable
doubt
Fakie
,
supra
.
[70]
The contention that the first respondent disobedience or
non-compliance was occasioned by wilfulness and
mala
fides
was not borne out by the proven and undisputed facts earlier alluded
to. Since the version of the applicants as set in the
founding
affidavit and further amplified in the replying affidavit and
comparatively considered together with the version of the
respondents
as set out in the answering affidavit did not satisfy the requisite
standard of proof, the first category relief has
to be denied. Where,
as in this instance, no wilful disobedience and reckless resistance
to a lawful court was proven the party
on whom the onus rests, has to
fail.
Pheko
,
supra
.
I would, therefor, dismiss the contempt component of his application.
[71]
In the second place I deal with the executive mayor, Mr Justice
Mareka, cited as the second respondent. He was not the executive
mayor at the time the court order was granted. He was not the
accounting officer of Moqhaka Local Municipality at the time
the
contempt proceedings were initiated. There was no simple letter
addressed to him in his official capacity about his employer’s
alleged wilful refusal to obey the court order. There was no single
letter addressed to him in his personal capacity to warn him
that his
employer’s wilful disobedience and reckless resistance to a
lawful court order could have adverse criminal repercussions
on his
personal civil liberty. He was not advised in any manner whatsoever
as to what his statutory duties were or what he was
precisely
required to do in order to avoid having the failings of the
municipality directly attributed to him.
[72]
There was virtually no written proof attached to the founding
affidavit, or even to the replying affidavit for that matter,
to show
that the court order was ever served on him or notice thereof ever
given to him. There was no evidence, however terse and
slender was
tendered by the applicants, to show that he had direct knowledge of
the previous application, judgement and the ultimate
order until the
current application was brought to his attention. He was never
invited to participate in the compliance processes
before these
contempt proceedings were instituted against him. He stated that he
was required to exercise political and not administrative
oversight
and to perform ceremonial and not operational duties. These, he
said, constituted the nucleus of his primary function
as the mayor:
sec 56 Local Government: Municipally System Act 117 of 1998.
[73]
The mayor just like the minister is the executive overseer and
monitor. He is legislatively empowered to exercise supervisory
authority in the affairs of the municipality. He oversees and
monitors the performance of the municipal manager as regards the
implementation and the enforcement of the municipal policies and
by-laws- Sec 99 Local Government: Municipal Structures Act 32
of
2000. I am just analogising here. Ordinarily the
director-general and not the minister is sued in his representatives
capacity for failings or acts of omission committed by a department.
Section 2,
State Liability Act 20 of 1957
. Seemingly a
municipal mayor enjoys no such privilege.
[74]
Having
considered the version of the applicants and that of the second
respondent, I am not persuaded that the applicants have made
out a
case beyond a reasonable doubt against the second respondent.
It was not shown that the court order was properly served
on him;
that he wilfully disobeyed such order; or that he spitefully resisted
or instigated any responsible functionary of the
municipality to
unlawfully refuse to implement the order. In my view the
exculpatory version of the second respondent was
reasonably innocent.
No contempt can be imputed to him. The failing if any, by the
first respondent cannot be justly attributed
to the second
respondent. In the light of all these material considerations, I am
inclined to dismiss the first category relief
sought against the
second respondent as well.
[75]
In the third place, I deal with the third respondent, Mr Mcedisi
Simon Mqwathi. As the municipal manager he obviously
sits much
closer to the burning fire than the executive mayor. He is the public
functionary ultimately responsible for the administrative
operations
of the first respondent, Moqhaka Local Municipality. He is the
accounting officer of the municipality –
sec 82
Local
Government: Municipal Systems Act 32 of 2000
.
Sec 60
Local Government: Municipal Finance Management Act 56 of 2003
also provides likewise. The responsibilities of the third
respondent as the municipal manager and as the ultimate head of
administration are set out in
sec 55
Local Government:
Municipal Systems Act 32 of 2000
. As the accounting officer of
the municipality the third respondent, was managerially responsible
and accountable, among
other, for the discharge of all the
liabilities of the first respondent, Moqhaka Local Municipality -
section 55(2)(c)
Local Government: Municipal Systems Act 32 of
2000
.
[76]
The third respondent was akin to the ultimate chief of operations.
He was the responsible functionary. He was legally
tasked,
among others, with the ultimate function of driving the enforcement
and implementation of the policies, by-laws, resolutions
integrated
development plan, general administration programme and general
principles of good governance. Monitoring the implementation
of
all those, including court orders against the municipality by the
subordinates officials of the municipalities, is central to
the
municipal managers core functions. The previous application was
launched against the municipality during his term of administration
as the municipal manager. Although there was no proof that the
order was served on him, he gained full knowledge thereof
long before
the current application was initiated. Even though certain
matters are delegated to others subordinates officials,
it still
remained his ultimate duty to ensure that the court order was
complied with.
[77] I
have already found in favour of the first respondent, that the
interpretation dispute between the applicants and the municipality
concerning the court order was the real cause of the delay. The
applicants started it all by reading too much in the court
order.
Legal opinion was sought and obtained by the first respondent.
Attorney B Majavu sent a copy thereof to the
applicants attorneys.
He would not have done so unless there was mutual agreement to that
effect. The legal opinion
was embodied in a memorandum dated 30
May 2014. I could not ascertain precisely when it was sent to
the applicants.
[78]
All the same the applicants received the legal opinion but repudiated
it. However, they did not bother to seek a second
legal opinion
to back up their interpretation of the court order. On 1
September 2014 the applicants without reference to
the legal opinion,
warned the respondents that they were in contemptuous breach of the
court order (vide para 6.1 anx rb5).
Without providing the
first respondent with a contrary legal opinion they threatened to
take legal steps. The purpose of
the threat was simply to force
the first respondent to accept the disputed interpretation of the
applicants. That, in my
view, was not in keeping with the
dictates of good faith. Such threat notwithstanding, the
applicants took their time to
initiate these contempt proceedings.
They finally did so on 4 March 2015, over six months since they
threatened to do so.
The municipality subsequently complied
with the court order in accordance with the legal opinion
groundlessly rejected by the applicants.
[79]
The municipality could not at all have complied, not even in a month
of Sundays, with the applicants excessive demand which
was not
apparent
ex
facie
the court order by Murray AJ. It was obvious to me, in the
light of all this, that the municipal manager never deliberately
disobeyed the court order or caused the first respondent, the second
respondent or any other responsible functionary of the municipality
to wilfully and spitefully refuse to comply. In the absence of
the requisite wilful disobedience and
mala
fide
refusal on his part, the wilful and
mala
fide
failings of the municipality, if any could be proven –
could not be justly and fairly be attributed to the third
respondent.
To a very large extent the applicants were to blame
for the delayed compliance by the municipality. In my view the
municipal
manager has advanced a reasonably innocent explanation
which was inconsistent with his alleged wilful and
mala
fide
disobedience or contemptuous refusal to carry out a lawful court
order –
Fakie
,
supra.
The contemptuous guilt of the third respondent was, in my view not
established beyond reasonable doubt.
[80]
Since no contempt against the municipality, the first respondent, was
established, it was not necessary for me to even consider
the merits
and demerits of the case against the executive mayor and the
municipal manager as I did –
Pheko
,
supra
para [56]. I did so because I believed there was a long felt
need to elucidate some grey areas in our municipal law.
I have
endeavoured to highlight the fundamental distinction between the
municipal manager and mayor. That functional differentiation
between the two local governors is crucial especially in contempt
proceedings. The two cannot simply be painted with the
same
brush merely on the grounds that they are both senior functionaries
of the municipality.
[81]
There remains one more aspect I have to comment on. Where, as
in this matter, the municipal functionaries who were not
jointly
cited as co-respondents in the previous proceedings, are accused of
contempt in the subsequent proceedings -
the applicants
must ideally engage the responsible and accountable functionaries in
extra-curial constructive compliance process.
In the course of
such process the court order should be directly brought to the
personal attention of the functionary. For
instance it can be
done in various ways, including but not limited to a face to face
meeting, email, private registered mail, private
letter personally
delivered
per
tradio brevi manu
with acknowledgment of receipt, service by the sheriff or by any
combination of any two or more or all such pre-litigation compliance
methods.
[82]
It seems desirable that all these should be done over and above an
official letter or notice given to the functionary concerned.
An official letter alone is not sufficient, in my view. In a
huge establishment, such as the first respondent, things may
and do
go horribly wrong sometimes. Important official letters may go
astray between the designated official whose duty it
is to open
letters and the functionary for whom the official letter was
intended. The purpose of privatising communiqué
between the winner or beneficiary of the court order and the remote
functionary of the municipality is to bring nearer home to
the
functionary not only the failings of the municipality but also their
adverse criminal consequences to the functionary’s
private
interest, civil liberty and personal profile.
[83]
In this instance no such constructive compliance process was followed
before the contempt proceedings were initiated against
the third and
second respondent. The mayor was simply hauled to court without
any prior warning whatsoever. In the
ordinary course of public
administration an applicant who seeks to compel a public functionary
to act in a particular way, first
has to obtain a mandamus against
such a functionary before recourse can be had to court for a criminal
sanction based on contempt
of court – MEC: Department of
Welfare:
ECP
v Kate
[2006] ZASCA 52
;
2006 (4) SA 326
(SCA) para [30-1]. This brings to end the
contempt component of this proceedings.
[84]
Now I turn to the second category of the relief sought. Here
the applicants seek a declarator. This is the second
component
of the motion proceedings before me. As earlier pointed out
they pray to have railway siding charges levied by
the first
respondent to the accounts of the applicants post the 2011/2012
financial year nullified and set aside. The precise
terms of
the second category of the relief are fully spelt out in para 4, 5
and 6 of the notice of motion. This second time
around the
first applicant is alone on the hot seat. Its functionaries,
the second and the third respondents are not in the
firing line.
[85]
During the course of her judgment, Murray AJ commented on “anx
06” to the previous application as follows:
“
The
Respondent did not annex any document that could have served as such
a
section 10G(7)(c)
notice or as a
section 10G(7)(e)
copy thereof
regarding the November 2000 decision or any earlier decision on the
amounts listed in the tables in annexures “RB10(2)”
or
“06”, whether in relation to an original determination of
tariffs or to an amendment to existing tariffs.
The language
regarding the notice in both
section 10G(7)(c)
and
section 10G(7)(e)
is peremptory. In the absence of such a notice, which absence
the Municipality in argument admitted, the implementation of
the
resolution would have been unlawful and the Applicants would simply
have been confronted with a fait accompli once the new
or amended
tariffs were imposed.”
[86]
The second category of the relief sought has its
fons
et origio
in
the aforesaid finding. The applicant also relied on the further
findings by Murray AJ as contained in para 48, 52, 54,
62, 67 and 79
in their endeavour to have the scope of the court order also
prospectively extended to the financial years 2012/13,
2013/14 and
2014/2015.
[87]
It was common cause that by itself the court order did not expressly
deal with those years. In other words it did not
expressly deal
with the future. It expressly dealt with the past.
According to its plain wording it appeared that its
essence was that
the railway siding charges in respect of erven [....], [....], 1545
and [....] were set aside because they had
been unlawfully imposed in
the past; that such railway siding charges with which the
accounts of the applicants in respect
of the three financial years
immediately preceeding the court order, being the years, 2009/2010,
2010/2011 and 2011/2012, be reversed;
that the accounts of the
applicants be credited with the amount corresponding to those of such
unlawful debit charges; that
the railway siding charges
unlawfully levied by the municipality and undeservedly paid by the
applicants in respect of those financial
years be refunded to the
applicants with interest. (para [82] “anx rb4”).
[88]
It was also undisputed that after 13 September 2013, being the date
of the court order, the first respondent passed a resolution
whereby
all the municipal service charges as previously specified in “anx
06” were adjusted by annually increasing
them. The annual
increment was based on a certain percentage relative to the consumer
price index and the inflation rate.
[89]
On the strength of those findings the applicants, through their
attorneys, objected to the railway siding charges the municipality
continued to levy against them after the financial year 2011/2012 in
connection with their industrial properties, namely:
erven
[....], [....], 1545 and [....]. They contended:
·
that
in respect of the period post 2011/2012 financial year, no railway
siding charges were due by the applicants to the municipality
because
such charges had been set aside by the court;
·
that,
in the light of such setting – aside, there existed no lawful
railway siding tariffs in respect of the period commencing
with the
financial year 2012/13 onwards;
·
that,
in view of the a foregoing two assertions, no railway siding charges
could lawfully be reflected by the municipality on the
clearance
certificate requested by the first applicant.
Vide
para 4 “anx rb 5” founding affidavit.
[90] It was on that
premise that the applicants approached the court for the relief as
set out in prayers 4, 5 and 6 of the notice
of motion. That, by
itself, was tantamount to an acknowledgment by the applicants that
the court order did not expressly
restrain the municipality to
refrain from continuing to levy consumers of railway siding services
on the basis of the outlawed:
“anx 06”.
The
generous interpretation that the judgment of Murray AJ also
prospectively declared all railway siding tariffs themselves for
all
the years post the 2011/2012 financial year to be
ultra
vires
,
was heavily attacked. The municipality described it as legally,
logically and patently wrong.
[91]
The first respondent indicated that the formula for the railway
siding tariffs as reflected in “anx 06” was adopted
by
the municipal council after investigations, inputs by all
steakholders, opinions by experts and deliberations and
considerations
of all those matters by the municipal council.
[92]
The issue revolves around the interpretation of the court order.
On the one hand Mr Knoetze argued that the intention
of Murray AJ as
far as the court order was concerned, had to be determined in the
light of the findings that she made in her judgment.
He argued
that the court order concerned the validity of the decision taken by
the municipality about the imposition of the railway
siding tariffs
as contained in ”anx 06”. Counsel submitted that it
was evident from the court order that Murray
AJ found “anx 06”
as a whole invalid.
[93]
On the other hand Mr Claasen sharply differ. He argued:
“
8.3
Murray AJ, also carefully distinguished between the years preceding
the 2012/2013 financial year. Previously,
from 2003 and before
the 2012 financial years, there was no resolution dealing with siding
tariffs and no proof of advertisement
and public participation
regarding these siding tariffs and no credit control by-law to levy
and collect these tariffs. For
the 2012/2013 financial year, a
resolution was taken, advertisement took place, public participation
occurred and by-law implemented
in accordance with the provisions of
the Systems Act and the Finance Act. Therefore it was only the
years
ante
/prior
to 2011/2012 that were found to be
ultra
vires.
Only the tariffs imposed from 2003 until 2012 were invalid. The
applicants did not appeal the decision in regard to
the 2012/2013
financial year, but asked this court, as a Court of Appeal, to set
Murray, AJ’s decision aside.”
[94]
Turning to the interpretation and the argument that “anx 06”
as a whole had already been declared unlawful, Mr
Claasen argued:
“
The
applicants contention that annexure ‘
06’
is ‘van nul en gener waarde – sien paragraaf 79 van
aanhangsel “
RB3”
(sic)(judgment
Murray AJ) is again completely wrong. The reasons,
ratio,
facts, principles leading to the formula of how to charge fees for
sidings, was never dismissed by Murray, AJ. All she said
was
that the
process
to levy these charges was fundamentally flawed. There was no
council decision, no siding tariff, no tariff policy provided,
no
advertisements and public participation and no tariff and credit
by-law provided from 2000 to 2012. Therefore, the sidings
were
set aside as
ultra
vires.
The
reason being the absence of the
processes
not complied with, the doctrine of legality, namely, non-compliance
of the prescripts of the procedures in
S10G(7)
of the
Local
Government Transition Act, 209 of 1993
and later
S74
and S
75
of the
Local Government: Municipal Systems Act, 32 of 2000
.
57
”
[95]
The procedure followed by the applicants in bringing the second
component of the current application to court was unusual.
The
judgment by Murray AJ in connection with the previous application was
attached to the founding affidavit as an annexure.
Murray AJ
was then extensively quoted in the founding affidavit and in the
applicant’s heads of argument. I have to
say that there
were 3 sets of such heads filed. I had a feeling, and it was a
very strong feeling, that the applicants were
suggestively
prescriptive to me. The foundation of their case was loud and
clear. They advised me that Murray AJ had
already considered
“anx 06”, found it entirely unlawful and nullified it as
a whole. Therefore, they advised
me further that all I was
required to do was to accept that conclusion as given and merely set
aside the railway siding charges
levied against them since 13
September 2013 in respect of the financial years 2012/2013, 2013/2014
and 2014/2015 on the strength
of a nullified municipal railway siding
tariffs.
[96] I
am because I think. I think, therefore, I am. Unless I
think, I am not. I gained the impression that I
was not
supposed to think independently judging by the way the applicant’s
papers were drafted and the way the matter was
brought to court.
During the course of his oral argument Mr Claasen did not mince his
words about the unsatisfactory procedural
aspect of the matter.
He said I, sitting alone on the bench, was in required to review the
decision of another judge.
Of course I have no jurisdiction to
do so. The response of Mr Knoetze confirmed my anxiety.
He orally replied that
these were not review proceedings; that
Murray AJ had already reviewed the matter and that I was not required
to review anything
afresh but that I was merely required to set aside
what my colleague had already reviewed and declared unlawful. I
understood
counsel to mean that mine was not to think and question
the validity or invalidity of “anx 06” but merely endorse
my
colleague’s finding(s) that it was invalid. I found it
difficult to compromise my independent judicial thinking in that
way.
[97]
The question is why did Murray AJ not crown her finding with an
appropriate and explicit order to give effect to it?
Only
Murray AJ could have given a satisfactory answer to that question.
It is lamentable that she was not approached to reconsider
her
order. There may well be a sound reason why she did not do what
I am now required to do. If on the one hand I were
to follow
the uncritical approach as proposed by the applicants, I would not do
justice to the argument presented by the municipality.
If, on
the other hand I were to adopt the critical approach as proposed by
the municipality, I might find myself in breach of the
hallow norms
of the bench governing, not only reviews and appeals, but also
relational issues between a colleague and a colleague.
I
have no jurisdiction sitting as I was on my ordinary bench, to judge
and critique another colleague. I am not sitting on
an elevated
appellate bench with 2 other colleagues to consider the decision of a
colleague on appeal. As Mr Claasen correctly
pointed out,
sitting alone on the same bench as Murray AJ I have no authority to
question the correctness or otherwise of her decision
whether it is
amenable to the interpretation of the applicant or the respondent.
[98]
In my view what happened after 13 September 2013 between the
applicants as consumers of the railway siding services and the
first
respondent as the service provider had all the hallmarks of a
distinct and a separate cause of action. Had the matter
been
brought to court on such a new ticket I would not have found myself
in this invidious position. Instead the applicant
chose to
bring it to court as an old appendage of the previous application.
The unusual procedure they chose lamentably complicated
matters, for
me at least.
[99]
In view of the aforesaid peculiar considerations I find it
undesirable to adjudicate the matter. Doing so may lead to
foreseeable irregularities. Therefore, I decline to entertain
the second component of the proceedings. I would, therefore,
strike the application down to this extent.
[100]
There were certain points raised in limine by the respondents in
connection with the first component of these proceedings.
In
the light of the conclusion I have reached, it has become unnecessary
to deal with them.
[101]
Now the question of costs remains. The respondents have
successfully resisted the grant of the reliefs sought by the
applicants. They are entitled to the fruits of their success.
The parties urged me, albeit for different reasons, to
award costs on
a punitive attorney and client scale to the successful party.
Although the applicants were less than candid,
I am not inclined to
saddle them with a punitive order of costs. The matter
warranted the employment of senior and junior
counsel by the
municipality. Therefore, the order has to make provision for
two counsels.
[102]
Accordingly I make the following order:
102.1 The
application is dismissed with costs as regards the first relief, in
other words the contempt component of these
motion proceedings;
102.2 The
application is struck off with costs as regards the second relief, in
other words the setting-aside component of
these motion proceedings;
102.3
The costs shall include the costs occasioned by the municipal
respondent’s employment of two counsels.
_____________
M.H. RAMPAI, J
On behalf of
applicants: Adv. B Knoetze SC
Instructed
by:
Symington
& De Kok Attorneys
Bloemfontein
On behalf of respondent:
Adv. J.Y. Claasen SC
with
him
Adv. A
Ayayee
Instructed
by:
Rampai
Attorneys
Bloemfontein
and
Majavu
Inc.
Johannesburg
/PC