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[2020] ZASCA 131
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Thipe and Another v City of Tshwane Metropolitan Municipality and Others (254/2019) [2020] ZASCA 131 (16 October 2020)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not Reportable
Case no: 254/2019
In
the matter between:
ANNA
MMAKODI THIPE
FIRST APPELLANT
286
DENNEBOON TRADERS
SECOND APPELLANT
and
CITY
OF TSHWANE METROPOLITAN
FIRST RESPONDENT
MUNICIPALITY
ISIBONELO
PROPERTY
SERVICES
(PTY) LTD SECOND
RESPONDENT
THE
MUNICIPAL MANAGER:
CITY
OF
TSHWANE THIRD
RESPONDENT
METROPOLITAN
MUNICIPALITY
THE
MAYOR: CITY OF TSHWANE FOURTH
RESPONDENT
METROPOLITAN
MUNICIPALITY
THE
CEO OF ISIBONELO PROPERTY FIFTH
RESPONDENT
SERVICES
(PTY)
LTD
MOEKETSI
MOSOLA SIXTH
RESPONDENT
SOLLY
MSIMANGA SEVENTH
RESPONDENT
SHADRACK
MTHETHWA EIGHTH
RESPONDENT
Neutral
citation:
Thipe
& Another v City of Tshwane Metropolitan Municipality &
Others
(Case no
254/2019)
[2020] ZASCA 131
(16 October 2020)
Coram:
PONNAN, ZONDI and MOLEMELA JJA and
WEINER AND SUTHERLAND AJJA
Heard
:
31 August 2020
Delivered
:
This judgment was handed down electronically by circulation to the
parties’ legal representatives via email, publication
on the
Supreme Court of Appeal website and release to SAFLII. The date and
time for hand-down is deemed to be 10h00 on 16 October
2020.
Summary:
Appeal against
order upholding exception and dismissing application – the
upholding of an exception disposes of the pleading
not the action or
defence - appeal succeeds.
ORDER
On
appeal from:
Gauteng
Division of the High Court, Pretoria (Khumalo J, sitting as court of
first instance):
1 The appeal succeeds.
2 The order of the high court upholding the exception
and dismissing the claim against the third to eighth respondents is
set aside.
3 The costs occasioned by both the
hearing of the exception in the high court and the appeal shall be
costs in the cause.
JUDGMENT
Zondi
JA (Ponnan and Molemela JJA and Weiner and Sutherland AJA concurring)
[1]
The appellants are informal traders who, until the occurrence of the
events which gave rise to these proceedings, traded from
the
Denneboom Train Station, Mamelodi, Pretoria (the property) in terms
of fixed term lease agreements with the first respondent,
the City of
Tshwane Metropolitan Municipality (the City of Tshwane). The second
respondent, Isibonelo Property Service (Pty) Ltd
(Isibonelo), is a
property development company, which at the relevant time, was
constructing a shopping mall on the property. MK
Africa Construction
(Pty) Ltd and Fencesteel (Pty) Ltd were subcontracted by Isibonelo to
carry out some of the construction and
bulk earthworks on the
project.
[2]
The third respondent is the Municipal Manager of the City of Tshwane
(the Municipal Manager). He was cited both in his official
capacity
and in his personal capacity, as the sixth respondent, Mr Moeketsi
Mosola. The fourth respondent is the Mayor of the City
of Tshwane
(the Mayor). He was also cited both in his official capacity as the
Mayor and in his personal capacity, as the seventh
respondent, Mr
Solly Msimanga.
[1]
The fifth respondent was cited in his official capacity as the Chief
Executive Officer (the CEO) of Isibonelo and in his personal
capacity
as the eighth respondent, Mr Shadrack Mthethwa.
[3]
The third to eighth respondents were not cited as parties when the
application for contempt of court was initially brought and
the order
granted by Janse van Nieuwenhuizen did not apply to them. They were
only joined as parties in their official capacities
on 1 November
2017 (first joinder application) and in their personal capacities on
7 November 2017 (second joinder application).
[4]
On 3 February 2017, the Gauteng Division of the High Court, Pretoria
(Rabie J) at the instance of the appellants, Ms Anna Mmakodi
Thipe
and what were described as 286 Denneboom Traders, issued a rule nisi,
returnable on 28 February 2017. In terms of the rule
nisi
,
the City of Tshwane, Isibonelo, MK Africa and Fencesteel were called
upon to show cause on the return day why they should not
be
interdicted from demolishing any structure used by the appellants,
pending their vacation of the property by agreement with
the City of
Tshwane or in terms of a court order. MK Africa and Fencesteel were
cited as the third and fourth respondents, respectively
in that
application.
[5] On 10 February 2017 the matter served before Janse
van Nieuwenhuizen J who, by agreement between the parties, discharged
the
rule nisi in its entirety and replaced it with the following
order:
‘
1.1. The matters under case numbers 6048/17
and 7922/17 are consolidated.
1.2. The rule
nisi
, granted Friday, 3 February 2017 under case
number 7922/17 is discharged.
1.3. Pending relocation of the traders to the temporary trading
facility, the respondents are interdicted and restrained from:
1.3.1. demolishing any existing structure, fixed or informal, used by
the traders for purposes of trading, in the area currently
occupied
by them;
1.3.2. unduly interfering with the traders’ trade by:
1.3.2.1. obstructing delivery of stock to their stalls;
1.3.2.2. obstructing public road access to their stalls;
1.3.3. disconnecting the water and electricity supply.
1.4. The applicants are interdicted and restrained from harassing,
intimidating or assaulting any employees, agents or contractors
of
the respondents, and from causing damage to public or private
property.
1.5. If any dispute arises about the interpretation, implementation,
or breach of the terms of this order, the parties will be
obliged to
first attempt to settle the dispute through conciliation, before
approaching the Court for relief.
1.6. During the construction phase of the Denneboom Station Public
Transport Interchange Development, the respondents will, at
the
temporary trading area, make available to the traders:
1.6.1. containers for those traders who currently occupy fixed
structures;
1.6.2. trading spaces for those traders who currently occupy informal
stalls;
1.6.3. proper ablution facilities, including communal water and
electricity.
1.7. To give effect to the preceding order the first respondent shall
within 7 (seven) days of the granting of this order:
1.7.1. allocate a number to each and every trader at the current
trading facility, differentiating between traders who occupy fixed
structures, and traders who occupy informal stalls;
1.7.2. allocate a corresponding number to a container or trading
space, as the case might be, at the temporary facility;
1.7.3. inform the traders and their attorneys, in writing,
accordingly.
1.8. After the traders have been informed, the traders are ordered to
relocate to the allocated trading spaces at the temporary
trading
facility within 48 (forty eight) hours of having been so informed.
1.9. Commuters from the Denneboom train station shall be diverted to
public transport facilities via the temporary trading area,
48 hours
after the traders have relocated to the temporary trading area.
1.10. The applicants shall provide the 1
st
respondent with
the names and identities of three people to represent them on the
Denneboom Facilities Management Board.
1.11. After having been informed of the names and identities of the
applicants’ representatives, the 1
st
respondent
shall forthwith ensure that the representatives are formally included
in the Denneboom Facilities Management Board.
1.12. Determination of the location, layout, design, allocation
criteria, and conditions of occupation and trade, of trading spaces
at the Denneboom Station Public Transport Interchange, shall be done
after consultation with the traders, and the parties shall
endeavour
to ensure that the trading conditions will in as far as possible be
comparable to the traders’ current trading
conditions.
1.13. The parties shall act reasonably and fairly at all stages.
1.14. Costs are reserved.’
(the
Janse van Nieuwenhuizen Order)
[6]
On 22 September 2017 the appellants’ trading facilities at the
property were demolished. There is a dispute between the
parties as
to who was responsible for the demolition. The appellants alleged
that the City of Tshwane and Isibonelo had authorised
the demolition.
They said that some of Isibonelo’s employees actively
participated in the demolition of their trading structures
and used
machinery belonging to Isibonelo to carry out the demolition. This
occurred, the appellants contended, in full view of
some of the City
of Tshwane police officers and certain members of the South African
Police Service from the Mamelodi West police
station, who did nothing
to protect them, their trading facilities and trading stock.
[7]
Following the destruction of their stalls, the appellants’
trading stock and building material were looted by some members
of
the community. The appellants alleged that they suffered damages in
the sum of R5 000 each, as a result of the destruction of
their
trading structures and stock. The appellants further alleged that on
26 September 2017, following the destruction of their
trading
facilities, Isibonelo in contravention of the Janse van Nieuwenhuizen
Order, erected a fence around the perimeter of the
trading area. They
contended that the erection of the fence unlawfully interfered with
their trade as it prevented their customers
from accessing their
stalls.
[8] On 17 October 2017 the appellants, brought an
application in the high court seeking to hold the City of Tshwane and
Isibonelo
in contempt of the Janse van Nieuwenhuizen Order. On 3
November 2017 the appellants filed an amended notice of motion for
the joinder
of the Municipal Manager, the Mayor and the CEO of
Isibonelo (the CEO) in their representative capacities as the third,
fourth
and fifth respondents. The appellants later, on 7 November
2017, also sought their joinder in their personal capacities as the
sixth, seventh and eighth respondents respectively. The further
relief sought was to the following effect:
‘
3. That the Respondents be and are hereby
found to be in contempt of the Order of the Honourable Mrs Justice
Janse Van Nieuwenhuizen
under case numbers 7922/17 and 6048/17
granted on 10 February 2017;
4. That the Sixth to Eighth Respondents be committed to prison for a
period of 120 days or such period determined by the Honourable
Court;
5. That the committal of the Sixth to Eighth Respondents to prison be
suspended for 1 (one) year on condition that:
5.1 The Respondents within 48 hours of the granting of this order
comply with paragraphs 1.6 and 1.7 of the Order the Honourable
Mrs
Justice Janse Van Nieuwenhuizen under case numbers 7922/17 and
6048/17 granted on 10 February 2017;
5.2 That the Respondents within 48 hours of the granting of this
order remove the fence they erected around the perimeter of the
Applicants’ trading area;
5.3 The Respondents within 14 days pay to each applicant an amount of
R5000.00 as compensation for the demolishing of their stalls,
loss of
their stock and violation of their constitutional rights.
6. That Respondents be ordered to pay the costs,
on an attorney and client scale, jointly and severally, the one
paying the others
to be absolved.’
[9]
The joinder of the Municipal Manager, the Mayor and the CEO was
sought on the basis that they had a direct and substantial interest
in the subject inasmuch as they are duty bound and obliged to ensure
that court orders are complied with by the City of Tshwane
and
Isibonelo respectively.
[10]
In the answering affidavit deposed to by the eighth respondent, Mr
Mthethwa in his capacity as the CEO of Isibonelo, it was
denied that
Isibonelo was in contempt of the Janse van Nieuwenhuizen Order.
Isibonelo denied that its employees or subcontractors,
were involved
in the demolition of the appellants’ trading structures. It
stated that without their knowledge or permission,
community members
and taxi drivers, who had become upset with the appellants for
delaying the completion of the building project,
had seized some of
the equipment from the construction site and proceeded to carry out
the demolition. Mr Mthethwa alleged that
the situation during the
demolition became very hostile and when Isibonelo’s employees
and those of its subcontractor intervened
to stop demolitions they
were pelted with stones forcing them to retreat.
[11]
Isibonelo admitted that it erected a fence around the perimeter of
the trading area but denied that the erection of the fence
obstructed
delivery of stock or access to the appellants’ stalls. It
averred that it fenced off the area on the instruction
of the City of
Tshwane because of vandalism at the property. This affected the
supply of water and electricity to the construction
site and the
neighbouring properties, occupied by the Mamelodi Shopping Centre and
a Total petrol service station. It further pointed
to the several
incidents of cable theft and armed robbery on the construction site.
This is not disputed by the appellants though
they contended that
Isibonelo should have consulted them first before fencing-off their
trading area.
[12]
Isibonelo alleged that in compliance with the court order it supplied
approximately 50 containers, each of which is able to
accommodate two
informal traders. In addition, it said it allocated an open space to
some of the informal traders who did not want
to use containers.
Isibonelo contended therefore that the contempt of court application
was ill-conceived, based on contrived allegations
and constituted an
abuse of court process.
[13]
In their replying affidavit the appellants admitted that the taxi
drivers were involved in the demolition of their stalls,
but denied
that only the taxi drivers were responsible therefor. The appellants
stated that the community members did not participate
in the
demolition. They only took part in the looting of their property
after the demolition. The appellants further denied that
Isibonelo
allocated containers to them.
[14]
The City of Tshwane’s answering affidavit was deposed to by Mr
Simon Tshepo Sithole (Director Litigation Management).
Mr Sithole
contended that the Municipal Manager and the Mayor were not parties
to the proceedings which came before Janse van Nieuwenhuizen
J; that
the appellants failed to set out any basis upon which they became
subject to the court order; that the allegations in the
appellants’
founding affidavit did not establish that the Municipal Manager and
the Mayor are the persons who wilfully, and
with knowledge of the
court order, failed to comply with its terms.
[15]
Mr Sithole alleged further that as the Municipal Manager and the
Mayor were not parties to the initial application, the order
did not
operate against them. He contended that before the court may hold the
Municipal Manager and the Mayor in contempt in their
own name, the
order should have first been sought and granted against them. Mr
Sithole’s contention was that it does not
follow as a matter of
course that any failure to comply by the City of Tshwane, which was
denied, may be attributed to the Municipal
Manager and the Mayor. Mr
Sithole contended that the appellants should have joined the
Municipal Manager and the Mayor as parties
to the proceedings from
the outset, in both their official and personal capacities and the
relief should have been made operative
against them personally,
before the appellants brought contempt proceedings against them.
[16]
Mr Sithole, moreover, alleged that meetings took place on a regular
basis between the traders and various representatives from
the City
of Tshwane in order to implement the Janse van Nieuwenhuizen Order.
He said these meetings yielded very little results,
mostly because
the traders kept moving the goal posts and made outrageous demands.
He denied that the City of Tshwane, its officials
and its
functionaries had anything to do with the demolition of the
structures.
[17]
It is apparent that there existed a stark dispute of fact as to
whether the demolition could be attributed to any conduct on
the part
of Isibonelo or the City of Tshwane; whether containers were
allocated to the appellants and whether the erection of a
fence was
in contravention of the court order. In short, whether as a matter of
fact any of the respondents were indeed in contempt
of the Janse Van
Nieuwenhuizen Order.
[18] On 8 November 2017, the matter came before
Mphahlele J, who issued the following order:
‘
That the issues raised in prayers 3, 4, 5,
5.3. and 6 [of the Janse Van Nieuwenhuizen Order] are referred to
trial.
That the parties will be entitled to call any witness on its own
behalf on condition that a statement containing the evidence of
that
witness is filed at least ten (10) days before the hearing.
That the normal Uniform Rules of Court with regard to trials will be
applicable.
That each party must supply the other party with a
list of witnesses it intends to call twenty (20) days before the
hearing.’
[19] On 9 February 2018 the appellants’ attorneys
wrote to the attorneys for the City of Tshwane and Isibonelo
regarding the
further conduct of the matter. The letter reads as
follows in relevant part:
‘
We furthermore place on record that the
matter was referred to trial by agreement between the parties.
No specific provisions were made as to the
standing of the papers and we propose that the normal rules apply in
this regard, in
that the Notice of Motion stand as a simple summons,
the answering affidavits as Notices of Intention to Defend, a
declaration
shall be delivered within 15 days of your acceptance of
this proposal and thereafter the Uniform Rules of Court shall apply.’
[20]
The reference to the fact that ‘the normal Uniform Rules of
Court with regard to trials will be applicable’ reinforces
the
view that the rules applicable to a trial (in relation to pleadings
and discovery for example) were to apply. That notwithstanding,
no
declaration or further pleading was filed. At the pre-trial
conference held on 13 September 2018, it was recorded on behalf
of
Isibonelo that ‘there has not been sufficient compliance with
rule 6(5)(g) of the Uniform Rules of Court.’ Further,
the rule
37 minute records that the Mayor, Municipal Manager and the CEO, who
had initially opposed the application for their joinder
to the
proceedings, consented to being joined.
[21] On 26 September 2018 the attorneys for Isibonelo
addressed a letter to the appellants’ attorneys in which they
complained
about the appellants’ failure to take steps to
comply with the terms of Mphahlele J’s order. The letter reads:
‘
As discussed during our recent pre-trial
conference, we are of the view that it was never competent for the
parties to embark on
a course of action that deviates from the clear
directions in the court order of the Honourable Justice Mphahlele,
which ordered
a referral of this matter to trial. We accordingly wish
to place the following on record:
We submit that it is important for the purposes of this letter to
briefly address the chronology of events:
i. As you are aware, the Honourable Justice Mphahlele ordered on 8
November 2017 that prayers 3, 4, 5, 5.3 and 6 of your clients’
notice of motion be referred to trial.
ii. On 9 February 2018, you wrote to the Honourable Deputy Judge
President, requesting a special trial allocation.
iii. On 20 February 2018, the Deputy President responded with a
letter directing you to approach the Chief Registrar for the
allocation
of a special date.
iv. We received a notice of set down of the trial on 9 March 2018.
v. A period of almost six months passed before your client delivered
its notice calling on the parties to file a discovery affidavit.
It
is not clear, and neither has your office explained the exact reason,
why your clients have been supine in pursuing this claim,
when there
was ample time to exchange proper sets of pleadings since that is the
proper manner of dealing with an application that
has been referred
to trial.
vi. In between the correspondence to the Deputy
Judge President, we received a letter from you dated 9 February 2018,
proposing
that the notice of motion stands as a summons and the
answering affidavit as a notice of intention to defend with a
declaration.
Shortly after this letter, we received a further letter
from you dated 6 March 2018 indicating that despite the court order,
you
proposed that the matter be referred to oral evidence.
The issues that necessitated this matter to be
referred to trial are extensive and are broadly traversed by the
affidavits that
have been filed by the parties. These affidavits are
not the pleadings contemplated or permissible within the Uniform
Rules of
Court when a matter is referred to trial. The affidavits, as
they presently stand, do not properly establish the precise issues
that are in dispute or, importantly, the precise nature of such
disputes.’
[22] The matter was set down before Khumalo J on 22
October 2018. At the commencement of the hearing, the City of Tshwane
and Isibonelo
raised what was described as an exception on behalf of
the third to eighth respondents. Despite no declaration or formal
exception
having been filed, the high court upheld the exception. The
high court’s reasoning is set out in the following passages of
the judgment:
‘
The cause of action as set out in the
summons / Founding Affidavit is devoid of any averments necessary to
sustain a contempt order
against the excipient-respondents justifying
their incarceration. The jurisdictional requirements that are to be
proven at the
trial, which is the order, service, deliberate
non-compliance and the concomitant
mala
fide
have not been satisfied in
relation to the capacity in which the Excipients are allegedly joined
to the proceedings. Consequently
there is no basis laid in the
Applicants’ Founding Affidavit / summons for conviction of the
Excipient Respondents on contempt.
An official’s non-compliance with a court order must be wilful
and
mala fide
. In general terms this means that the official
in question must, personally, be found to have deliberately defied
the court order.
Hence, a public official is cited for contempt in
his personal capacity, the official himself or herself, rather than
the institutional
structures for which he or she is responsible, must
have wilfully or maliciously failed to comply; see
Matjhabeng
and
the decision of the SCA in
Meadow Glen Home Owners Association and
Others v Tshwane City Metropolitan and Another
2015 (2) SA 413
(SCA) at [20]…
…
The material allegations necessary against
the Excipients are not in the Applicants’ Founding Affidavit.’
[23]
The high court then dismissed the application for contempt against
the third to eighth appellants, but granted them leave to
appeal to
this Court. The order of the high court cannot stand. Having upheld
the exception, the high court proceeded to dismiss
the application
instead of granting leave to the appellants, if so advised, to
amend. As observed in
Ocean
Echo Properties 327 CC and Another v Old Mutual Life Assurance
Company (South Africa) Limited,
[2]
the upholding of an exception disposes of the pleading against which
the exception was taken, not the action or defence. An
unsuccessful pleader is given the opportunity to amend. The
rationale for this is that the pleading as such continues to
exist. Ordinarily therefore the court should grant leave to
amend and not dispose of the matter. Leave to amend is not a matter
of an indulgence; it is a matter of course unless there is a good
reason that the pleading cannot be amended.
[3]
No
good reason was evident or asserted in this case. In those
circumstances, counsel for the respondents conceded that,
irrespective
of the merits of the exception, the high court ought not
to have proceeded to dismiss the application.
[24]
Given the course that the matter had followed the high court would
have been justified in declining to decide the matter on
exception.
It follows that the matter must be remitted to the high court. The
parties would then be free to take such steps, as
advised, with
regard to the further conduct of the proceedings.
[25]
The approach adopted by the appellants to the litigation has been
characterised by several procedural missteps. This has resulted
in a
series of piecemeal hearings. It still remains for the high court to
determine whether the respondents originally cited in
the Janse Van
Nieuwenhuizen Order, as a matter of fact, acted in wilful disregard
of that court order. They contended that they
were not responsible
for the demolition of the appellants’ property. If that version
carries the day at trial, then the contempt
application against them
must fail. If it fails against them, it can hardly succeed against
the other respondents, who have, subsequent
to the grant of the Janse
Van Nieuwenhuizen Order, been joined to the proceedings. Instead of
first resolving the primary factual
disputes, the parties allowed the
focus to shift to whether as a matter of law the Mayor, Municipal
Manager and CEO can be held
in contempt either in their
representative or personal capacities. But, those questions depend
upon the facts found to be proven.
Thus as interesting as those legal
questions are likely to be, one may simply not get to them if the
primary factual disputes are
resolved against the appellants.
[26]
In any event, given the passage of time, it would appear that the
construction has been completed. The appellants had applied
for
expedited trial dates. The motivation was inter alia that the matter
is ‘sensitive’ because they ‘seek that
the Mayor of
Tshwane be held in contempt of court’. The appellants also
pointed out that they would ‘need to subpoena
contract workers
of the Respondents to testify with regards to . . . the demolition of
the site. Whilst they are apparently still
in the employ of the
Respondents, any delay in the trial would in all probability prove to
be to the detriment of the Appellants’.
Whether these witnesses
are still available remains to be seen. There has also been a change
in the political leadership of the
City of Tshwane. Accordingly, any
order that issues for contempt against the third, fourth, sixth and
seventh respondents is likely
to be largely symbolic.
[27]
As to costs: Given the general disregard shown by the appellants for
the rules of court in the conduct of the litigation, which
has
contributed to piecemeal hearings and this appeal, as also the stark
disputes of fact on the papers, which may yet be resolved
against the
appellants at trial, the costs occasioned by both the hearing of the
exception in the high court and the appeal shall
be costs in the
cause.
[28] In the result:
1 The appeal succeeds.
2 The order of the high court upholding the exception
and dismissing the claim against the third to eighth respondents is
set aside.
3 The costs occasioned by both the hearing of the
exception in the high court and the appeal shall be costs in the
cause.
_________________
Zondi JA
Judge
of Appeal
Appearances:
For
appellants: A de Vos SC (with her Ms M Coetzee)
Instructed
by: Lawyers for Human Rights, Pretoria
Webbers
Attorneys, Bloemfontein
For
1
st
, 3
rd
, 4
th
, 6
th
&
7
th
respondents: A Vorster (with him K Bokaba)
Instructed
by: Malebye Motaung Mtembu Inc, Pretoria
Phatshoane
Henney Attorneys,
Bloemfontein
For
2
nd
, 5
th
& 8
th
respondents: B L
Manentsa (with him Ms B B Mkhize and M Mazibuko)
Instructed
by: Adams & Adams Attorneys, Pretoria
Honey
and Partners Inc, Bloemfontein
[1]
Neither Mr Mosola, nor Mr Msimanga are presently
in office in these capacities.
[2]
Ocean Echo Properties 327 CC and
Another v Old Mutual Life Assurance Company (South Africa) Limited
[2018] ZASCA 9
;
2018 (3) SA 405
(SCA) para 8.
[3]
Ibid.