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[2008] ZAWCHC 61
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Mare v Plettenberg Bay / Bitou Municipality and Others (12478/2008) [2008] ZAWCHC 61 (29 October 2008)
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CIRCUIT LOCAL DIVISION)
REPORTABLE
CASE
No: 12478/08
In
the matter between:
ELMARIE
MARÉ Plaintiff / Respondent
(previously
Olivier, born Fourie)
and
PLETTENBERG
BAY / BITOU MUNICIPALITY First Defendant / Applicant
M
K LELUMA Second Defendant / Applicant
C
L MVIMBI Third Defendant / Applicant
L
LUITERS Fourth Defendant / Applicant
N
M SISHUBA Fifth Defendant / Applicant
T
M NQOLO Sixth Defendant / Applicant
E
V M WILDEMAN Seventh Defendant / Applicant
_____________________________________________________________________
JUDGMENT DELIVERED : 29 OCTOBER 2008
________________________________________________________________________
On behalf of Plaintiff / Respondent : Attorney J Wagener
Attorney(s) : Johan Wagener Inc
On behalf of Defendants / Applicants : Adv A de Vos SC et Adv P
van der Berg
Attorney(s) : Groenewald Lubbe Inc
Heard on : 2008: 18 September
Republic of South Africa
IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CIRCUIT LOCAL DIVISION)
REPORTABLE
CASE
No: 12478/08
In the matter
between:
ELMARIE
MARÉ Plaintiff
/
Respondent
(previously
Olivier, born Fourie)
and
PLETTENBERG
BAY / BITOU MUNICIPALITY First Defendant / Applicant
M
K LELUMA Second Defendant / Applicant
C
L MVIMBI Third Defendant / Applicant
L
LUITERS Fourth Defendant / Applicant
N
M SISHUBA Fifth Defendant / Applicant
T
M NQOLO Sixth Defendant / Applicant
E
V M WILDEMAN Seventh Defendant / Applicant
_____________________________________________________________________
JUDGMENT DELIVERED :
29 OCTOBER 2008
________________________________________________________________________
MOOSA,
J:
Introduction
This is an application, in terms of Rule 47 (1) of the Uniform Rules
of Court, for an order that plaintiff be directed to furnish
security for costs of the defendants in the amount and in the form
to be determined by the Registrar of the Court. The grounds,
upon
which the application is brought, are two-fold: firstly, that
plaintiff is impecunious and would not be able to pay defendants’
costs should a costs order be made against her and secondly, that
plaintiff’s claim against the defendants is frivolous
in that
her claim for sexual harassment has become prescribed and her claim
for unfair dismissal has been settled.
The plaintiff opposed the application. She took a point
in
limine
that first defendant had no
locus standi
in that
it was not properly authorised to defend the action or to bring this
application. She also opposed the application on
the merits.
Plaintiff instituted action against the defendants, jointly and
severally, the one paying the other to be absolved,
for damages in
the sum of R32 465 033.97 arising allegedly from sexual harassment
and sexual assault and unfair dismissal. The
particulars of claim
do not lend themselves to clarity and precision and are somewhat
obfuscated. Third to seventh defendants
are cited in their personal
capacity and they are also held legally responsible for the alleged
sexual conduct of second defendant.
Point
in limine
Plaintiff challenged the authority of Deon Daantjie Lot (“Lot”)
to bring this application on behalf of the first
defendant. In her
opposing affidavit, she states that the attorneys for first
defendant were requested to furnish her attorneys
with a Municipal
Council’s resolution authorising Groenewald Lubbe Inc to
defend the action, but they have failed to do
so. Lot, in his
founding affidavit, states that he is the acting Municipal Manager
and duly authorised to bring this application
on behalf of first
defendant. In his replying affidavit he annexes letters from the
Municipal Manager confirming that Groenewald
Lubbe Inc has been
instructed on behalf of defendants to defend the action instituted
by plaintiff against them and to bring
this application. In a
supporting affidavit, third defendant states that by virtue of
Municipal Council’s resolution dated
11 September 2003 (the
first resolution), he was empowered to instruct Groenewald Lubbe Inc
to defend the action on behalf of
first defendant and to launch the
application for security for costs. He also authorised the acting
Municipal Manager to depose
to any affidavit to give effect to such
instructions.
The Resolution
The relevant resolution reads as follows:
“
That all powers, functions and duties, other than those
mentioned in (2) above, in all legislation accrued effectively to the
Municipal
Council of Plettenberg Bay (Bitou) Local Municipality, in
terms of the applicable legislation, be delegated in terms of
Section
59
of the
Local Government: Municipal Systems Act, 2000
, as amended
(the Act), to the Executive Mayor, subject to (4) below.”
Those powers reserved in terms of clause 2 do not include powers to
litigate on behalf of the Municipality. In terms of clause
4, the
Executive Mayor is authorised to sub-delegate those powers vested in
him, other than those that have been specifically reserved
in terms
of such clause. Such reservation does not include the power to
litigate. The resolution contains a proviso, in terms
of clause 5,
that the Executive Mayor shall inform the Municipal Council in due
course of any sub-delegation.
The plaintiff, in a further affidavit dated 16 September 2008, in
reply to third defendant’s affidavit dated 15 September
2008,
states that the powers vested in the Executive Mayor, in terms of
the first resolution, were re-affirmed in terms of a
resolution
dated 9 March 2006 (the second resolution). It contained a proviso
to the effect that the Municipal Manager submits
a comprehensive
report to the next ordinary meeting of the Municipal Council
regarding relevant delegations. Plaintiff conceded
in her affidavit
that by implication the right to institute and defend legal
proceedings is vested in the office of the Executive
Mayor. She
submitted that the Executive Mayor had failed to submit a report to
the Municipal Council of the sub-delegation in
terms of the original
resolution and the Municipal Manager had failed to submit a report
to the
“next ordinary meeting of the Municipal Council
regarding relevant delegations”
.
Plaintiff’s Submission
Mr
Wagener
, on behalf of plaintiff argued that because of
such failure, the power entrusted to third defendant to litigate on
behalf of
first defendant and the authority to sub-delegate such
power, has lapsed. In the circumstances it was contended that
Groenewald
Lubbe Inc was appointed by someone without any delegated
authority to defend the action on behalf of first defendant as both
third defendant and the Municipal Manager were out of the country.
The application for security for costs was likewise flawed.
It was
submitted further that the appearance to defend, as well as this
application, is accordingly null and void. I do not
agree.
The Evaluation
The duty on the part of the Executive Mayor to report back to the
Municipal Manager on the sub-delegations in terms of the first
resolution has been superceded by the second resolution. In terms
of the second resolution the duty to report back on all delegations
to the next ordinary meeting of the Municipal Council, fell on the
Municipal Manager. The fact that the Municipal Manager has
not
reported back to the Municipal Council does not automatically
extinguish the delegated authority vested in the office of
the
Executive Mayor. For such delegated authority to be terminated,
there must be a formal withdrawal of such delegated authority
by the
Municipal Council. This is expressly provided for in
Section
5(1)(c)
of the Act. There is no evidence that such delegated
authority entrusted to third defendant was formally withdrawn by the
Municipal
Council.
The further argument that the exercise of the delegated power by
third defendant was conditional upon the Municipal Manager reporting
back to the Municipal Council is without merit. There is nothing in
the first or second resolution which expressly or by implication
manifests such intention and neither are the terms of such
resolutions capable of such interpretation. The further argument
that Groenewald Lubbe Inc was appointed by Lot who did not have
authority to make such an appointment, is also misplaced. It
was
always first and third defendants’ case that third defendant
instructed the attorneys and Lot was only instructed
to depose to
an affidavit on behalf of first defendant as he was privy to certain
information which formed the basis of this
application. (
Mzundizi
Municipality v Natal Joint Municipal Pension/Provident Fund and
Others
2007(1) SA 142 (N) at 147G-I;
Nelson Mandela
Metropolitan Municipality v Greyvenouw CC
2004 (2) SA 81
paras
47 – 51.)
The facts in
Great Kei Municipality v Danmisi Properties CC
[2004] 4 All SA 298
(E) at 299,
which was referred to by
Mr
Wagener
in support of his claim that the instructions to
Groenewald Lubbe Inc to defend the action was flawed, are
distinguishable from
the facts in this matter. In the case of the
Great Kei Municipality
, the acting Municipal Manager brought an
urgent application for rescission of judgment in the interest of the
Municipality in
the absence of the Mayor and the Municipal Manager
who were overseas. He had no authority to act on behalf of the
Municipality.
In the present case, third defendant who had the
necessary authority, although he was overseas at the time,
instructed the attorneys
personally to defend the action on behalf
of the Municipality. Such instructions were therefore not flawed as
in the case of
the
Great Kei Municipalty.
The finding
I am satisfied that the resolutions in question empowered third
defendant to institute and defend proceedings on behalf of the
Municipality of Plettenberg Bay (Bitou) and to sub-delegate such
powers. Such powers were not conditional upon him or the Municipal
Manager reporting back on the delegations. At all material times,
third defendant had the necessary authority to instruct Groenewald
Lubbe Inc to defend the action and to bring this application. I
conclude, therefore, that the first defendant had
locus standi
to defend the action and to bring the present application. The
point
in limine
by plaintiff is accordingly without merit and
is rejected.
The Merit
I now turn to deal with the merits of the application which is
brought under
Rule 47(1).
The rule reads as follows:
“
(1) A party entitled and desiring to demand security for
costs from another shall, as soon as is practicable after the
commencement
of the proceedings, deliver a notice setting forth the
grounds upon which such security is claimed, and the amount
demanded.”
In terms of such notice, defendants demanded security for costs in
the amount of R300 000.00 on the grounds that plaintiff
is
impecunious and the action is frivolous. I will examine each of the
two grounds.
The Law
Before dealing with the two grounds, I will briefly set out the law.
The court has inherent jurisdiction to order an
incola
plaintiff to give security for costs to defendant where the court is
satisfied that the proceedings are vexatious, frivolous,
reckless or
an abuse of the process of the court. However in
Ecker v Dean
1938 AD 102
at 111, the court cautioned as follows:
“
The Court has inherent jurisdiction to prevent abuse of its
process by staying proceedings or ordering security in certain
circumstances,
but as pointed out by
Solomon JA
in
Western Assurance Company v Caldwell’s Trustee
1918
AD at 274 this power ought to be sparingly exercised and only in
exceptional cases.”
Our courts have repeatedly emphasised that each case for security
for costs must be considered on its own facts and on its own
merits.
There are a number of factors that a court has to consider in order
to determine whether security for costs should be
provided or not.
They are firstly, what are prospects of the litigant satisfying an
adverse costs order; secondly, what are
the prospects of the
litigant succeeding in its case; thirdly, what are the objects of
the litigation; fourthly, does it amount
to an abuse of the process
of the court in that the proceedings are either vexatious, or
frivolous, reckless, instituted with
an ulterior motive or with
collateral and improper purpose and fifthly, whether the litigant is
a close corporation, a company,
a trust, an insolvent or a
peregrinus. (
Ecker v Dean
(supra)
at 111;
Hudson v Hudson & Another
1927 AD 259
at 268;
Benash v
Wixley
1997 (3) SA 727
(SCA) at 734F-G;
Brummer v Gorfil
Bros Investments (Pty) Ltd en Andere
1999 (3) SA 389
(SCA) at
414I-J and 416B-F;
Phillips v Botha
[1998] ZASCA 105
;
1999 (2) SA 555
(SCA)
565E-F;
Crest Enterprises (Pty) Ltd and Another v Barnett and
Schlosberg NNO
1986 (4) SA 19
(C) at 22A-E;
Henry v R E
Designs CC
1998 (2) SA 502
(C) and
Ramsamy NO and Others v
Maarman NO & Another
2002 (6) SA 159
at 172D-H.)
The factors mentioned in the preceding paragraph should not be
regarded as exhaustive and the individual factors should not be
regarded as decisive. In the exercise of the court’s
discretion, the factors present in a particular case ought to be
carefully balanced before concluding whether or not security for
costs ought to be given by the litigant. In exercising such
discretion the starting point is that the
incola
has a right
to enforce his or her claim in accordance with the due process of
the law and in such enforcement he has a right
to approach a Court
of Law. These rights in terms of the common law have been
re-inforced by our Constitution in Articles 34
and 38 of the
Constitution of the Republic of South Africa, 1996. (See:
Crest
Enterprises (Pty) Ltd and Another v Barnett and Schlosberg NNO
(supra)
at 22A-E and
Ramsamy NO and Others v
Maarman NO & Another
(supra)
at 173A-F.) On the
other hand, the court ought to be mindful of the fact that the
opposing litigant could be mulcted in costs
and have no prospect of
recovering such costs from an impecunious plaintiff. It could
create prejudice and hardship to such
opposing litigant. The court
accordingly has to strike a balance between the different
considerations and the interests of the
litigating parties in
determining whether security for costs should or should not be
ordered. (
Mears v Pretoria Estate and market Company Ltd
1907
TS 951
at 956 and
Ecker v Dean
(supra)
and
Giddey N
O v J C Barnard and Partners
[2006] ZACC 13
;
2007 (2) BCLR 125
(CC) at para
8
.
)
The Evalution
Within that legal framework, the court is going to examine the
grounds upon which the defendants have brought this application.
The first ground is the impecunity of plaintiff. It is common cause
that plaintiff has no assets and no income. It is also
common cause
that she is presently unemployed and there are no immediate
prospects of her finding any employment. It is therefore
unlikely
that she would be able to pay the costs of the defendants should an
adverse cost order be made against her. This in
itself is not
sufficient to justify an order that she furnish security for the
defendants’ costs. Something more is required.
Defendants
assert that plaintiff’s claim is frivolous. I will examine
that proposition.
Defendants’ proposition that plaintiff’s claim is
frivolous is based on three grounds. The first is that third, fifth,
sixth and seventh defendants have been cited as parties in their
personal capacity without there being any factual basis for
holding
them liable in law. The second is that she has compromised her
claim based on unfair dismissal and in any event even
if she had a
legitimate claim, this court’s jurisdiction is ousted in
respect of such claim in favour of the Labour Court
in terms of
Section 10
of the
Employment Equity Act, No 55 of 1998
, read
together with
Section 6(3)
of the said Act. The third is that any
claim she may have had against defendants has become prescribed in
terms of the
Prescription Act, No 68 of 1969
. I will deal with each
of these defences in turn.
Plaintiff’s claim arises from sexual harassment and sexual
assault perpetrated allegedly by second defendant as an employee
of
the first defendant. Her claim is based on the
actio iniuriarum
for which she is claiming damages
.
Second defendant has
denied these allegations. There
is no causal link between
third to seventh defendants to such harassment and assault. The
defendants were either councillors
or employees of first defendant.
Third defendant was the Executive Mayor and as such member of the
Executive Committee, fourth
defendant was the Speaker and a member
of the Mayoral Committee, fifth defendant was an ordinary
councillor, sixth defendant
was an employee of first defendant and
seventh defendant was the Deputy Mayor. In her Particulars of
Claim she alleges that
the collective conduct of the defendants
resulted in her losing her work contrary to the recommendation of
the Departmental Presiding
Officer, Adv Vermaak. The involvement
of third to seventh defendants is therefore essentially concentrated
on her unfair dismissal
claim and not on her sexual harassment and
assault claim. They are also not cited in their representative
capacity but in their
personal capacity. The claim against third to
seventh defendants is, in the circumstances, legally flawed.
In addition to such flaw, the second leg of their defence is that
the claim for unfair dismissal has been compromised and/or
settled
between plaintiff and first defendant. The defendants’ claim
in the papers is that an agreement dated 14 June
2000 was concluded
between plaintiff, first and second defendant in terms of which the
parties resolved their differences. Plaintiff
states that she
refused to sign the agreement because it amounted to blackmail.
This not borne out by the objective evidence.
Lot in his replying
affidavit dated 8 September 2008, stated that the agreement was
signed by plaintiff and annexed a signed
copy of the agreement to
such affidavit, from which it appears that the agreement was signed
by her. Lot went further to state
that first defendant received a
letter dated 21 June 2000 from her in terms of which she
resiled from the said agreement.
In the said letter she
specifically refers to the agreement signed by her. She
unequivocally admits that she signed the agreement.
It appears
therefore that her veracity must be called into question.
Lot states further in his affidavit that, in view of the fact that
plaintiff reneged on the agreement, first defendant instituted
disciplinary proceedings against her. Following a hearing,
plaintiff was dismissed. Plaintiff then appealed to the Bargaining
Council against the sanction. The parties came to a settlement and
in pursuance to such settlement first defendant paid plaintiff
an
amount of R62 256.00 in full and final settlement of her claim based
on unfair dismissal. Plaintiff did not dispute these
allegations
despite the fact that she filed a further affidavit dated 16
September 2008, that is after the replying affidavit
of Lot was
served on her attorneys. The only reasonable inference the court
can draw is that her claim for unfair dismissal
was settled and in
terms of such settlement she was paid a sum of money in full and
final settlement of her claim. In the circumstances
it is not
necessary for the court to consider or give a ruling concerning the
jurisdiction of this court as opposed to that of
the Labour Court or
the question of prescription. The court accordingly concludes that
her claim for unfair dismissal in respect
of all the defendants is
frivolous.
I now turn to deal with her claim in respect of the sexual
harassment and assault. There is no causal link between third to
seventh defendants. Second defendant denies the allegations against
him. Defendants have furthermore raised the defence of
prescription. Plaintiff alleged that second defendant sexually
harassed and assaulted her during February 1999 to March/April
2000.
In terms of the provision of Section 11(d) of the Prescription Act,
No 68 of 1969, (“the Act”) the claim in
respect of the
sexual harassment and assault became prescribed by the latest on 1
May 2003. Plaintiff issued Summons in this
matter on 30 May 2008,
that is, more than five years after the claim had become prescribed.
Plaintiff’s response to such
defence was that Magistrate Buhr
indicated soon after the case began, that the police should
investigate the case and the police
docket and the court file had
disappeared. Defendants disputed the disappearance of the police
docket or the court file. In
any case these do not appear to be
grounds for the delay of prescription in terms of Section 13 of the
Act. Sections 14 and
15 furthermore provide for the interruption of
prescription by express or tacit acknowledgment of liability by the
debtor or
by means of judicial interruption. It does not appear
that plaintiff relies on such interruption.
Mr
Wagener
submitted that it is not proper for the court to
determine the issue of prescription at this stage of the
proceedings. The proper
forum to determine such issue is the trial
court after the issue has been properly ventilated in the
pleadings. Adv
De Vos
SC with Adv
Van der Berg
, on
behalf of the defendants, countered that they did not ask that this
court make a ruling that plaintiff’s claim has
become
prescribed but to order that security be furnished on the basis of
the approach enunciated by
Innes CJ
in
Mears v Pretoria
Estate and Market Co Ltd
(supra)
at 956:
“
I do not go into the merits of this case; I look at the
general rule. It would be a cruel hardship for men to be harassed by
actions
which they might succeed in, when they know that by no
possibility can their cost be paid by the insolvent and when
proceedings
are not brought
in forma pauperis
.
That being so, we should grant the cross-application, and directt
Mears to give security for cost”.
[22] On the face of it, it appears that plaintiff’s claim
in respect of sexual harassment and assault has become prescribed.
I
agree with Mr
Wagener
that the issue can best be determined in
a trial after it has been fully ventilated in the pleadings. Without
making a definite
finding on the issue of prescription, I will take
note of what Adv
De Vos
emphasised, namely, that prescription
is a factor that I have to bear in mind, when balancing all the other
relevant factors in
the exercise of my discretion whether to order
security for costs or not.
[23] In this regard the court
mero motu
raised the case of
Van
Zyl v Hoogenhout
2005 (2) SA 93
in which the question of
prescription was raised for a claim of damages arising from sexual
assault. The trial court found that
the claim had become prescribed
three years after plaintiff attained majority and accordingly upheld
the special plea of prescription.
On appeal to the Supreme Court of
Appeal, the court reversed the decision and held at p 107
I
-108B:
“
But, in this case, there is evidence that indicates, prima
facie, that the plaintiff was not aware until recently that it was
not
she who was the cause of, or who bore responsibility for what
occurred but, rather, that the responsibility was that of the
defendant.
There was no evidence to controvert it in any substantial
way. In my view, the Court should have found that the defendant
failed
to establish as a matter or probability that prescription
commenced to run before 1997.”
Adv
De Vos
submitted that the facts are distinguishable from
the facts in this case. I agree. However, that case lays down an
important
principle, namely, that prescription starts running from
the time the victim makes the causal connection between the assault,
abuse
or injury and the harm or wrong done to her by the perpetrator.
Such connection may only be made through therapeutic intervention.
In such event the realisation of such connection would then trigger
off the cause of action.
[24] In the present case important constitutional issues are at
stake. They are the right to dignity (Article 10 of the
Constitution),
the right to equality and equal protection and benefit
of the law (Article 9 of the Constitution) and access to courts
(Article
34 of the Constitution). Because a person is impecunious,
such person, in my view, should not be prevented from asserting her
important constitutional rights in a court of law. If our courts
should succumb thereto, they will become an elitist institution
and a
conclave and playing field for the few, the rich and the privileged.
The majority of our citizens, both black and white,
would effectively
be excluded from the protection and benefit of the law. Poverty
knows no colour. The court is mindful of the
fact that should the
court order the plaintiff to furnish security for costs to pursue her
claim in respect of the sexual harassment
and assault, it would put
paid to her proceedings against those responsible.
[25] In
Kini Bay Village Assoc v Nelson Mandela Metro
[2008] 4
All SA 50
(SCA) at para 12
Maya JA
writing for the Court, in
connection with the furnishing of security in terms of Section 13 of
the Companies Act, No 61 of 1973,
read with Uniform Rule 47(3), held:
”
Whilst the court is enjoined to exercise its discretion
with the litigants’ constitutional right to access to courts in
mind,
the mere possibility that an order for security will
effectively put an end to the litigation, which seemingly is the
intended
and inevitable result of Section 13, does not constitute
sufficient reason for its refusal – this is but one of the
factors
(there is no closed list) a court will consider in the
exercise, which involves weighing the potential injustice to the
plaintiff
or applicant if it is prevented from pursuing a legitimate
claim, against the potential injustice to the opposing party if it
succeeds
in its defence but cannot recover its costs.”
(references left out)
The Conclusion
[26] In light of all the circumstances, I conclude firstly, that the
claim against third to seventh defendants is frivolous and
the court
will order plaintiff to furnish security, should she wish to pursue
her claim against them; secondly, that her claim
against first and
second defendants in respect of unfair dismissal is frivolous and the
court would order her to furnish security
in respect of such costs
should she wish to pursue such claim against them and thirdly, the
court would not bar her from pursuing
her claim in respect of the
sexual harassment and assault against first and second defendants,
should she wish to do so, by ordering
her to put up security for
costs.
The Order
[27] In the premises the court makes the following order:
(a) That the application of first and second defendants for
plaintiff to furnish them with security for costs in respect of her
sexual harassment and assault claim, is refused;
(b) that plaintiff is directed to furnish security for costs of third
to seventh defendants in an amount and in the
form to be
determined by the Registrar of the above honourable court;
(c) that plaintiff is directed to furnish security for costs to first
and second defendants in respect of plaintiff’s claim
against
them for unfair dismissal in an amount and in the form to be
determined by the Registrar of the above honourable court;
and
(d) that the costs of this application shall be cost in the cause.
E Mar
é
v Plettenberg Bay / Bitou Municipality
Cont/…