About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2011
>>
[2011] ZAFSHC 193
|
|
Matjhabeng Local Municipality v Municipality Demarcation Board and Others (514/2011) [2011] ZAFSHC 193 (1 December 2011)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Case No. : 514/2011
In
the matter between:-
MATJHABENG
LOCAL MUNICIPALITY
…..............................
Applicant
and
THE MUNICIPAL
DEMARCATION BOARD
…............
First
Respondent
THE ELECTORAL
COMMISSION
….......................
Second
Respondent
THE
MINISTER OF COOPERATIVE
….......................
Third
Respondent
GOVERNANCE AND
TRADITIONAL AFFAIRS
THE
MEC FOR COOPERATIVE
GOVERNANCE,
TRADITIONAL AFFAIRS AND
HUMAN
SETTLEMENT, FREE STATE PROVINCE
.
Fourth
Respondent
_____________________________________________________
HEARD ON:
24 NOVEMBER 2011
_____________________________________________________
DELIVERED ON:
1 DECEMBER 2011
_____________________________________________________
JUDGMENT
_____________________________________________________
H.M. MUSI, JP
[1]
This matter came before me for determination of only the issue of
costs. It is, however, necessary that before I set out and
deal with
the issues raised, I give a brief outline of the factual background.
[2]
The applicant brought this application on the basis of urgency
seeking primarily the orders as set out in prayers 3, 4 and 5
of the
notice of motion, which are as follows:
“
3.
That the First Respondent’s decisions to delimit the
Applicant’s wards as published on 16 April 2010 and 31 August
2010 in the Free State Provincial Gazette number 11 and 74,
respectively are hereby reviewed and set aside.
4. That the
First Respondent’s delimitation of Applicant’s wards in
2006 and the wards compilation following the Local
Government
Elections in 2006 as published by the Electoral Commission be
retained and maintained for the 2011 local government
elections,
alternatively,
5. That voter
registration in Applicant’s wards and voting districts affected
by the First Respondent’s delimitation
decisions is hereby
suspended pending the finalisation of this application.”
[3]
The matter first came before Moloi, J on 5 February 2011, but it was
postponed without being heard to 11 February 2011 in order
to afford
the first and second respondents the opportunity to file their
answering affidavits and timeframes were laid down within
which
these, as well as the applicant’s replying affidavit and the
heads of argument, were to be filed. In due course the
answering
affidavits and replying affidavit were filed, although not
necessarily punctually. On the eve of the date of hearing
the
applicant removed the matter from the roll by notice dated 10
February 2011, without prior consultation with the first and
second
respondents. It is apparent that this was necessitated by the
respondents’ objection to the non-joinder of the third
and
fourth respondents and the applicant seemingly removed the matter in
order that it should first join these parties as they
clearly had a
direct and substantial interest in the matter. By notice dated 10
February 2011 the third and fourth respondents
were joined.
Thereafter the applicant reinstated the matter on the roll for
hearing on 28 March 2011. However, by notice dated
25 March 2011, the
applicant again removed the matter from the roll and reinstated it on
the roll for hearing on 13 April 2011.
The matter was again removed
from the roll at the instance of the applicant and was subsequently
enrolled for hearing on 14 November
2011. The applicant subsequently
addressed a letter to the respondents and the registrar of this court
announcing that the hearing
on 14 November 2011 would focus only on
the issue of costs. The letter was brought to my attention and I then
directed that the
matter be removed from the roll as it was no longer
to be heard by two judges as a Rule 53 review and further directed
that it
be put on the ordinary roll for opposed applications. The
matter was accordingly enrolled for hearing on 24 November 2011.
[4]
At the outset of argument before me, Mr. Moerane, for the applicant,
made it known that the applicant is withdrawing its application
and
confirmed that I should adjudicate only the issue of costs. Now under
a discussion of Rule 41(1)(c) relating to the issue of
costs upon
withdrawal of an action, Erasmus:
Superior Court Practice
at
B1-305 says the following:
“
The
general principle is that the party withdrawing is liable, as an
unsuccessful litigant, to pay the costs of the proceedings.
The
court, however, retains a discretion to deprive the successful party
of his costs.”
There can be no doubt
that this is settled law. See the authorities cited in footnote 4 and
5 of
Erasmus
.
[5] The applicant is in
the same position as an unsuccessful litigant and the rule that
ordinarily costs should follow the cause,
would apply. However, the
applicant’s case is that this court should exercise its
discretion in favour of depriving the respondents
of their costs. Two
grounds have been advanced for this submission. The first is that
this is a constitutional matter and the Constitutional
Court has laid
down a rule to the effect that in such matters the unsuccessful
litigant should normally not be mulcted with costs.
The second is
that the parties herein are organs of state and that section 41(3) of
the Constitution applies. This section enjoins
organs of state to
co-operate and to make reasonable efforts to settle disputes among
themselves before approaching the court for
redress. The applicant
contends that it took all reasonable steps to try to resolve the
dispute with the first respondent, but
that the latter failed to
co-operate, thus forcing it to approach this court with the instant
application. It was submitted that
on that basis I should make no
costs order.
[6] In argument Mr.
Moerane raised a further point to the effect that the parties herein
all get their funds from the same source,
National Treasury, and
contended that whatever costs are awarded will ultimately have to be
paid from the same source. Counsel
submitted that it was undesirable
that costs be awarded against any of the parties. In my view, this
submission loses sight of
the fact that once funds are allocated to
state organs, each takes full responsibility for how the funds are
utilised. If, for
instance, the applicant were to be ordered to pay
the costs of these proceedings, the payment will be debited against
its allocation
and this may amount to wasteful expenditure that would
create a shortfall on its budget. The award would naturally
negatively impact
on its ability to carry out its statutory mandate
of providing services to the public and it would also dent its
governance profile.
On the other hand, an award of costs may be a
fitting sanction to be imposed on an organ of state broiled in
litigation and which
had failed to heed the provisions of section 41
of the Constitution. Such an award would also serve as a warning to
other organs
of state not to rush to court before exhausting ways of
resolving the disputes with their counterparts.
[7] I now turn to deal
with the constitutional principle. Mr. Burger, for the first
respondent, contended that the proceedings herein
did not raise
constitutional issues. He argued that the impugned decision did not
have a bearing on the rights of the voters affected
by the
delimination. All that the delimination meant was that a voter who
used to vote at a particular voting station, may now
have to go and
vote at a different polling station. The voters’ right to vote
would not be affected at all, so the argument
went. Mr. Burger said
that the delimination was a purely procedural matter. Mr. Knoetze,
for the second respondent, supported this
line of reasoning.
[8] I agree with counsel
for the applicant that the delimination of wards for purposes of
municipal elections goes to the root of
the democratic process of
election by the residents of a municipal area of their public
representatives. Equally there can be no
doubt that a dispute between
organs of state relating to the exercise of their statutory powers is
a constitutional issue. I am
also of the view that where an organ of
state genuinely believes that the conduct of another organ of state
has the potential to
impinge on, or threatens, the constitutional
rights of the citizens under its governance, it would be entitled to
challenge the
conduct complained of and if necessary approach the
court for redress.
[9] In my view, the
applicant took every reasonable step to try to resolve the dispute
between it and the first respondent before
approaching the court. It
is undisputed that after the first respondent had published the
second delimination on 16 April 2010,
the applicant lodged an
objection timeously on 30 April 2010. Thereafter numerous
correspondences were addressed on behalf of the
applicant enquiring
about the first respondent’s response to the objections. The
first respondent simply did not respond
and various requests for the
reasons for the delimination fell on deaf ears.
[10] The first respondent
ultimately gave its reasons for the delimination by letter dated 17
January 2011. In the meantime the
second respondent had declared that
voter registration would start on 4 – 5 February 2011. Quite
clearly the matter became
urgent and the applicant then proposed that
a meeting be held to discuss the issue, but the first respondent
again failed to respond,
as it did in respect of an earlier request
for a meeting. I therefore hold that in these circumstances the
applicant was justified
in approaching the court on the basis of
urgency to seek redress.
[11]
Counsel for the applicant referred me to authority dealing with
application of the principle that an unsuccessful private litigant
engaged in proceedings against an organ of state to vindicate his
constitutional rights should not be settled with costs. Compare
MOTSEPE v COMMISSIONER FOR INLAND REVENUE
[1997] ZACC 3
;
1997
(2) SA 898
(CC) para [30];
AFFORDABLE MEDICINES TRUST AND
OTHERS v MINISTER OF HEALTH AND OTHERS
[2005] ZACC 3
;
2006 (3) SA 247
(CC)
para [138];
BIOWATCH TRUST v REGISTRAR, GENETIC RESOURCES, AND
OTHERS
2009 (6) SA 232
(CC) at 246 A – 247 E. The cases
reveal that the principle is not unqualified. The qualification was
expressed as follows
by Sachs, J in
BIOWATCH
at 247 A –
B:
“
If
an application is frivolous or vexatious, or in any other way
manifestly inappropriate, the applicant should not expect that
the
worthiness of its cause will immunise it against an adverse costs
award.”
[12] Counsel for the
second respondent contended that the qualification should apply in
this case because, as he put it, the application
was inappropriate. I
disagree. In the first place, counsel did not say that the
application is manifestly inappropriate, but only
that it is
inappropriate. Secondly, he did not contend that it was frivolous or
vexatious. As counsel for the applicant pointed
out, the applicant
has alleged in its founding affidavit substantive non-compliance with
inter alia
the delimitation criteria set out in item 4 of
schedule 1 to the Local Government: Municipal Structures Act, Act 117
of 1998. These
include the need to avoid as far as possible the
fragmentation of communities, the safety and security of voters and
election material
as well as identifiable ward boundaries. These are
not frivolous or spurious matters.
[13]
Now it is apparent that the principle is meant to apply primarily in
instances where private individuals litigate against organs
of state.
I, however, agree with the submission made by counsel for the
applicant that the principle should cover instances where
a state
organ vindicates the rights of the citizens under its charge as
in
casu
provided, of course, that the
issues raised are genuine and substantive. See in this regard the
remarks made by Sachs, J in
BIOWATCH
in
paragraph [16]. The learned judge said the following:
“
The
primary consideration in constitutional litigation must be the way in
which a costs order would hinder or promote the advancement
of
constitutional democracy.”
[14] I conclude that the
principle that an unsuccessful litigant in constitutional matters
should not be ordered to pay the costs
is applicable in this case.
[15] Now counsel for the
applicant has brought to my attention the judgment in
INDEPENDENT
ELECTORAL COMMISSION v LANGEBERG MUNICIPALITY
[2001] ZACC 23
;
2001 (9) BCLR
883
(CC). It was there decided that the Independent Electoral
Commission is not an organ of state within the national sphere of
government
and that section 41(3) of the Constitution does not apply
to it. In other words, there was no obligation on the second
respondent
to engage in any efforts to try to resolve the matter
outside court. Likewise the provisions of the Intergovernmental
Relations
Framework Act, 13 of 2005, (“the Act”), do not
apply to it.
[16] The first respondent
is not a chapter 9 institution and does not operate outside of
government. Therefore the provisions of
section 41 of the
Constitution as well as the Act apply to it. Now Mr. Knoetze pointed
out that the applicant failed to declare
a formal intergovernmental
dispute with the first respondent in terms of section 41 of the Act,
which would have triggered the
procedure laid down in sections 42, 43
and 44 of the Act. He contended that the applicant was therefore
debarred by virtue of the
provisions of section 45 of the Act to
institute the instant proceedings.
[17] It seems to me that
the provisions of section 41 of the Act are not peremptory for the
section says that the organ of state
may
declare a dispute. In
my view, the circumstances of this case are such that there was not
time to engage in the processes set out
in sections 42, 43 and 44 and
declaring a dispute would not have helped. This is because the
applicant was furnished with reasons
for the delimitation only
subsequent to 17 January 2011, after its earlier enquiries had fallen
on deaf ears, and registration
of voters was due to start on 4 –
6 February 2011. What is crucial in my view is the injunction to make
every reasonable
effort to resolve a dispute before approaching a
court. In this regard, the applicant tried to resolve the dispute
even at that
late stage and proposed a meeting for the purpose, but
the first respondent was again not moved.
[18] Now it should be
noted that although the second respondent does not fall within the
national sphere of government, it nonetheless
remains an organ of
state and the principle relating to awards of costs in constitutional
matters equally applies to it. In addition,
I have to take into
account that the dispute herein was really between the applicant and
the first respondent and significantly
no order was sought against
the second respondent. In these circumstances I think this is an
appropriate case where a costs order
should not be made. Compare
ELECTORAL COMMISSION OF THE REPUBLIC OF SOUTH AFRICA v INKATHA
FREEDOM PARTY
2011 (9) BCLR 943
(CC);
PREMIER, LIMPOPO
PROVINCE v SPEAKER OF THE LIMPOPO PROVINCIAL LEGISLATURE AND OTHERS
2011 (11) BCLR 1181
(CC);
UTHUKELA DISTRICT MUNICIPALITY AND
OTHERS v PRESIDENT OF THE REPUBLIC OF SOUTH AFRICA AND OTHERS
[2002] ZACC 11
;
2003 (1) SA 678
(CC).
[19] Finally, I am of the
view that the issues of urgency and alleged non-compliance with
section 35 of Act 62 of 1955 are matters
that should have been
canvassed before the matter was withdrawn and are now water under the
bridge.
[20] In the result the
following order is made:
Save for the costs
already awarded in this matter, each party shall pay their own costs
of suit.
____________
H.M. MUSI, JP
On
behalf of applicant: Adv. M.T.K Moerane SC
Instructed
by:
Moroka
Attorneys
BLOEMFONTEIN
On
behalf of first respondent: Adv. A.H. Burger SC
Instructed
by:
Neuhoff
Attorneys
BLOEMFONTEIN
On behalf of second
respondent: Adv. Barnard Knoetze SC
Instructed by:
Symington & De Kok
BLOEMFONTEIN
/sp