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[2013] ZAFSHC 238
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Ivy Moon t/a Dumisani Building Supplies and Others v Moqhaka Local Municipality (3648/2012) [2013] ZAFSHC 238 (1 March 2013)
FREE
STATE HIGH COURT, BLOEMFONTEIN
REPUBLIC
OF SOUTH AFRICA
Case No. :
3648/2012
In the matter
between:-
IVY
MOON t/a DUMISANI BUILDING SUPPLIES
…........................................................
First
Applicant
HENNIE’S
GATES
…............................................................................................................
Second
Applicant
SPEEDSPOT
MOTORCYCLES
…........................................................................................
Third
Applicant
IMPERIAL
GROUP (PTY) LTD
…......................................................................................
Fourth
Applicant
t/a ACD
KROONSTAD
IMPERIAL
GROUP (PTY) LTD
….........................................................................................
Fifth
Applicant
t/a FORD &
MAZDA
J
T OTTO ELECTRICAL
…...................................................................................................
Sixth
Applicant
HIGHLAND
NIGHT INVESTMENTS 41 (PTY)
LTD
t/a HIGHLAND NIGHT STEEL
…...........................................................................
Seventh
Applicant
UNITRANS
MOTORS (PTY) LTD
…..................................................................................
Eighth
Applicant
ORANJE TOYOTA
KROONSTAD
and
MOQHAKA
LOCAL MUNICIPALITY
…..................................................................................
Respondent
HEARD
ON:
28
FEBRUARY 2013
DELIVERED
ON:
1
MARCH 2013
JUDGMENT
MOCUMIE, J
[1] The first to
eighth applicants (the applicants) approached this court in August
2012 for relief in the following terms [Directly
translated from
Afrikaans]:
“
1.
The respondent be ordered to provide the applicants with a full
explanation on what the exact purpose of the work on the hole
(ditch/trench) in front of the applicants’ business premises
within 10 days from date of this court order.
2. The respondent be
ordered to provide the applicants with a program which shows how long
the project is going to take and when
the road will be completed or
whether the program will have any impact on the business of the
applicants.
3. The respondent to
be ordered to keep the applicants up to date on any delays and what
might cause or hamper the project’s
completion or lead to a
postponement of the completion.
The respondent be
ordered to pay the costs of the application.”
[2]
It is common cause between the parties that the respondent, the
Moqhaka Municipality, did not give notice to the residents of
Kroonstad that during April 2012 a hole/trench will be excavated in
the middle of Swart and Brand Streets in Kroonstad where the
first to
eighth applicants are residents and have businesses as it is obliged
to do so in terms of section 5 of the Municipal Systems
Act 32 of
2000
(“the
Municipal Systems Act
”
).It
is also common cause that the relief the applicants sought, had since
been overtaken by events; in that the work on the trench
was
completed in September 2012 and as a result the application was
abandoned. The applicants now only seek a costs order against
the
respondent.
[4] The applicants’
case is simple and could not be refuted by the respondent despite
valiant attempts to do so. The respondent
did not comply with its
responsibility in respect of the Municipal Systems Act. The
applicants had no other avenue to pursue, after
repeated attempts to
get the information from the respondent had failed, including a
letter written to the respondent and a meeting
by their attorney with
one of the respondent’s senior personnel.
[5] In its defence
the respondent argued that the applicants were hasty to run to court.
The very demand that they were making in
their letter was overtaken
by events, the trench project was completed two months after the
letter was received. The respondent,
however, had to concede that it
had not complied with its statutory obligation as prescribed in
section 5(1) (c) of the Municipal
Systems Act. It had to concede that
to date it has not responded to the letter of demand by the
applicants as prescribed by section
5(1 )(b) of the Systems Act. In
other words it did not notify the residents of Kroonstad, Swart and
Brand street of the excavation
that was going to take place within a
specific period. Neither did it give the applicants any information
in that regard despite
their request in a letter dated July 2012.
[6] I ask the
question: What other avenue did the applicants have other than to
approach this Court to enforce their rights after
all attempts to get
the information had been met with disdain and consequently failed?
The answer has to be, None. Every citizen
of this country has the
right to approach a court to enforce its rights. In order for them to
be able to approach the court as
is in the nature of any litigation;
they had to consult an attorney and ultimately an advocate to take up
their case to the point
it reached yesterday in court. The matter was
heard on an opposed basis.
[7] In my view it is
on that principle alone that the applicants are entitled to their
costs for preparations of this application,
responding to the
respondent’s opposing affidavit due to the unreliable and
unfounded averments made in the opposing papers,
including costs of
counsel that had to be briefed to prepare all the papers that were
necessary to file for the abandoned application.
[8] I am certain
that had the respondent being reasonable and conscious that it is
using tax payers’ money to drag this matter
out so long, the
matter could have been resolved immediately by tendering costs even
before filing opposing papers that are misleading
and mischievous to
say the least but definitely do not reflect the true reality of this
matter. I am also certain that the matter
could still have been
resolved at any stage before today to avoid escalating fees from the
day the applicants abandoned their application.
The respondent has
itself to blame for this unfortunate situation. Unfortunate in that
it is the taxpayers, including the applicants,
once more that will
bear the brunt. I am duty bound to state that it is high time that
municipalities begin to think of having
those responsible for
unnecessary protracted litigations against the municipalities be made
to pay the wasted costs out of their
own pockets. Each individual who
had a direct bearing on this matter subsequent to the applicants’
decision not to proceed
with the application, had a responsibility to
weigh the options and realise that to oppose the application for
costs against the
respondent in these circumstances was not a
winnable case and therefore acted irresponsibly, if not irrationally,
by not negotiating
and striving for a settlement outside the court
processes.
[7] I have no option
but to order that the respondent pay the costs of the first to eighth
applicants’ abandoned application,
Case No: 3648/2012.Such
costs to include costs of the hearing on 28 February 2013. Costs to
be costs on party-and-party scale.
B C MOCUÍV1IE,
J
On behalf of
applicants: Adv J.Y. Claasen SC
Instructed by:
Phatshoane Henney
Inc Bloemfontein
On behalf of
respondent: Adv C.D. Pienaar
Instructed by:
Rosendorff Reitz
Barry Bloemfontein