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[2014] ZAGPPHC 337
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Blue Anvil Trading (Pty) Limited v City of Tshwane Metropolitan Municipality and Others (37511/13) [2014] ZAGPPHC 337 (19 May 2014)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
Case
No. 37511/13
Date:
19 May 2014
Not
Reportable
Not
of interest to other judges
In the
matter between :-
BLUE ANVIL
TRADING (PTY)
LIMITED
....................................................................
APPLICANT
and
THE CITY OF
TSHWANE METROPOLITAN
MUNICIPALITY
...............................................................................................
FIRST
RESPONDENT
THE
MUNICIPALITY MANAGER OF THE CITY OF
TSWANE
METROPOLITAN MUNICIPALITY
......................................
SECOND
RESPONDENT
FAITH
MABINDISA
......................................................................................
THIRD
RESPONDENT
SIDNEY M
RAMOVHA
...........................................................................
FOURTH RESPONDENT
JUDGMENT
DE VRIES AJ
When
this matter was called it contained the following prayers in the
Notice of Motion prayed for by the Applicant:-
1.
That the First and Second Respondents be
held in contempt of Court Order of the aforementioned Honourable
Court dated the 9
th
of October 2012 issued by the Honourable, Mr. Justice Hiemstra;
2.
That the Third Respondent be committed to
imprisonment for a period of sixty (60) days, which committal order
be suspended in its
entirety on condition that the First and
Third Respondents comply with the abovementioned Court Order within
seven (7) days
of granting of this Order;
3.
That the First Respondent be ordered to pay
the Applicant’s costs on a scale between Attorney and own
Client;
4.
Further and/or alternative relief.
5.
It was pointed out to the parties by the
Court that according to the Founding papers of the Applicant that the
dispute between the
parties under the contract giving rise to this
dispute commenced in February 2011 and that the duration thereof was
for three (3)
year period which would have ended the contract by
fluction of time in February 2014.
6.
Consequently in order in terms of the
prayer would not be capable of fulfilment by the Respondent as there
were no more obligation
in existence for the First Respondent to
comply with were an Order b e granted in May of 2014.
7.
The matter stood down and the Court was
informed that the concerns raised were shared by both Applicant and
Respondents’ Counsel,(
both who have overlooked this point) and
that the Applicant’s Application could clearly not proceed.
8.
The only question to be decided is that of
costs against the back ground of the history of the matter.
In order to exercise
the Court’s discretion in the award of
costs, are set out in a very brief synopsis of the history of the
dispute between
the parties.
9.
Shortly after the agreement between the
Applicant and the Respondent had been concluded in February 2011, a
second tender was put
out by the First Respondent, under tender
number CB 82 2011, the Applicant also tendered in respect thereof and
was successful.
10.
The two tenders differed in the following
respects with regard to the vehicles used for refuge removal services
in the sense that
the first tender the Applicant was obliged to
supply the First Respondent with suitable vehicles and a driver.
In respect
of the second tender, suitable vehicles together with a
driver and labours were to be furnished. In those
respects
the two tenders differed.
11.
The second tender also contained a
provision that same would be implemented only in the event of
stockages occurring due to unforeseen
circumstances.
12.
Applicant became aggrieved at the alleged
unlawful use of the First Respondent of the second tender to
allegedly circumvent its
obligations to the Applicant in respect of
the first tender.
13.
For the reasons as more fully set out
hereunder, it is unnecessary for the purposes of a cost argument to
go into a detailed analysis
of the contentions of the parties at this
stage.
14.
What is however of importance is that the
First Applicant launched an application against the First Respondent
and others for an
order made by this Court on the 9
th
of October 2012 under case number 24464/2012. Such Order was made
pursuant to a settlement agreement then entered into between
the
parties.
15.
Sadly this was not an end to the dispute
between the parties and on the 1
st
of February 2013, under case number 70882.2002 it was ordered by this
Court :-
1.
The
First Respondent is to be declared in contempt of the Court Order
dated the 9
th
of October 2012, granted by his Lordship, Mr. Justice Hiemstra.
2.
That
the First Respondent is to comply with the provisions of the
aforementioned order within ten (10) days from the date of this
Order, that each party pays their own costs. Despite two
Court Orders being granted in favour of the Applicant, the
difficulties between the parties persisted, leaving to the launch of
the instant application.
16.
The
time frame of this application according to the papers is as follows
The
application was launched during June 2013. The same conduct
previously alleged by the Applicant was in the main repeated
and the
Application could not have foreseen in review of this matter that the
basis of the application being the alleged
unlawful use of the
second tender would lead to a new approach by the Respondents in
these papers indicated and so it was specifically
argued by Counsel
on behalf of the Respondents alleged that the issues of the Second
Respondent were totally lawful and that the
Respondents had
incorrectly conceded that it was in contempt, previously leading to
the Order holding it to be in contempt. The
Respondents’
Answering Affidavits was served on the Applicant’s Attorneys of
Record on the 20
th
of September 2013 and the Replying Affidavit was served on the 16
th
of October 2013. A notice of Set Down was served by the Applicant’s
Attorneys on the 24
th
of March 2014.
17.
Against this background I must decide
whether to deviate from the usual practice of an order for costs
following the result. The
result in this instance is that the
Applicant was unable to argue at the date of hearing that it could
proceed with its prayers
in terms of the Notice of Motion.
18.
I was invited by the Applicant to find that
the Applicant was entitled to launch its Application by virtue of the
previous concessions
made by First Respondent and that the Applicant
should not be moulted in costs as a result of the fact that the
Applicant did not
for see that the Application would become opposed
and that there was an equal amount of worthiness for this matter to
have been
before Court at a time when both parties could and should
have been aware that the matter could not proceed and that this
escaped
the notice of the legal representatives.
19.
As against this it was on behalf of the
Respondents that the application is bad in law
inter
alia
the reasons as set out herein
before and was doomed to failure from inception.
20.
Having considered all these factors, I make
the following Order :-
1.
Applicant is ordered to pay the Respondents
costs up to and including 1
st
of February 2014;
2.
Each
party is ordered to pay its own costs incurred after the date as set
out in 1. hereinabove.
________________________________
DE
VRIES, AJ
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA,
GAUTENG
DIVISION,
PRETORIA