IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION, JOHANNES BURG
In the matter between: Case No: 2023 /003435
THE CITY OF JOHANNESBURG METROPOLITAN
MUNICIPALITY Applicant
and
COMMUNITY PROTECTION SOLUTIONS NPC Respondent
JUDGMENT
GOEDHART AJ:
Introduction
[1] The dispute between the applicant (the City) and the respondent (CPS) concerns
the lawfulness of road closure s which CPS implemented during December 2022
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
Date : 17 March 2025 Signature :
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in the Waverly and Savoy Estate area (“ the affected area ”). Th e road closure s,
adjacent to Corlette Drive and Louis Botha Avenue, affect 20 public roads and
17 intersections .
[2] In this interlocutory application, CPS seeks leave to file a supplementary
answering affidavit in terms of Rule 6(5)(e) to its answering affidavit delivered on
24 January 2023 in answer to the City’s urgent application launched on 18
January 2023 (“the main application”) .
Litigation history
[3] In the main application, the City seeks an order declaring all the structures
installed by CPS in the affected area as unlawful ; authorising it to remove the
unauthorised structures ; interdicting CPS from installing any structures in the
affected areas ; and setting aside advertisements published by CPS pertaining to
the road closure s in the affected area on the basis that the advertisements did
not comply with section 44 of the Rationalisation of Local Go vernment Affairs Act,
10 of 1998. The date originally envisaged for the hearing of the urgent application
was 31 January 2023.
[4] CPS filed its answering affidavit and counter -application on 24 January 2023.
CPS' contention in its counter -application is that the interim approval by the City
of 14 September 2021 to approve the road closures automatically became final
as, to CPS’ knowledge, no comments were lodged which negated : (i) the
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necessity for a final decision to be taken by the City ; (ii) the need to obtain final
approval in writing ; and (iii) the need for publication of a final approval. Its case
is that its implementation of the road closure s was lawful based on estoppel,
legitimate expectation and established practice . It also seeks interdictory relief
that, if it is held that final approval was required , that the City be interdicted from
removing the road closure structures pending the final determination of its road
closure application.
[5] The City filed its replying affidavit and its answering affidavit to the conditional
counter -application on 30 January 2023.
[6] CPS filed its replying affidavit in the conditional counter -application on 3 February
2023.
[7] Consequent upon the conditional counter -application, the large number of papers
exchanged between the parties in their respective affidavits (the record now
exceeds 2 200 pages) and the length of time that would be required for the proper
argument of the matter, the parties agreed that the matter was not ripe for hearing
on the urgent court roll of 31 January 2023 , and further agreed to jointly request
a special allocation for the hearing of the matter.
[8] On 1 6 February 2023 , the parties addressed a joint letter to the Deputy Judge
President requesting a special allocation. In this letter, the parties indicated that
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all relevant affidavits in the matter had been exchanged . The joint letter proposed
that t he City would file its heads of argument by 21 February 2023 and CPS
would file its heads of argument by 6 March 2023 . The parties sought a special
allocation of one day for the hearing of argument .
[9] The City filed its heads of argument on 22 February 2023.
[10] Late in February 2023 , settlement discussions between the parties ensued . The
litigation was held in abeyance pending settlement discussions. The settlement
discussions proved unsuccessful, and on 26 April 2023 , CPS was placed on
terms to file its heads of argument by no later than 6 May 2023 . CPS did not file
its heads of argument by this date.
[11] On 10 May 2023, CPS’ attorney , Mr Duke, requested a final meeting to be agreed
to by 11 May 2023, failing which CPS would proceed with a Rule 35(12) notice
calling for discovery. Mr Duke is also the attorney who represented CPS in the
road closure application .
[12] The threatened Rule 35(12) notice calling for extensive further discovery by the
City was served on 12 May 2023 . The City’s response was that the Rule 35(12)
notice was a fishing expedition and that a plethora of irrelevant documents were
demanded in an endeavour to delay the adjudication of the main application. The
City filed its answer the Rule 35(12) notice on 5 July 2023 refusing further
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discovery . CPS did not pursue an application to compel the discovery of the
documents sought in the Rule 35(12) notice.
[13] On 4 August 2023, the City launched an application to compel CPS’ heads of
argument, which CPS opposed. CPS delivered its application to file a
supplementary affidavit on 15 August 2023. The City did not pursue its
application to compel the delivery of CPS’ heads of argument as the
supplementation application intervened and fell to be determined first.
CPS’ grounds for seeking leave to supplement
[14] CPS asserts that the documents with which it seeks to supplement its answering
affidavit to the main application are vital documents relevant to the issues in
dispute which only came into its possession after the filing of the last set of
affidavits on 3 February 2023. Further, that the documents sought to be
introduced will reduce the disputes of fact in the main application.
[15] CPS contends that there are two disputes of fact in the main application:
15.1. first, whether the advertisement placed by CPS inviting comments on the
proposed approval of the access restriction application met the
requirements of the City. The City’s case is that the advertisement is not
in accordance with the City’s requirements whereas CPS contends that
the template it used emanated from the City and is widely used by other
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access restriction applicants and is accepted by the City in all those
matters ;
15.2. second , whether final approval of the access restriction application ha d
been granted. The City’s position is that no final approval had been
granted and no final approval advert had been advertised in the Gazette
and accordingly CPS was not entitled to proceed with the construction of
the road closure structures in the affected area which are thus unlawful
and stand to be removed. CPS contends that , where no objections were
lodged pursuant to the advertisement of interim approval , the interim
approval as a dvertised becomes final approval within 60 days from the
date of placing the interim approval advertisement and no further
approval would thereafter be issued by the City, nor would a final
approval advertisement be placed in the Government Gazette ;
[16] The documents sought to be introduced are copies of Government Gazette s
published over the period November 2018 to May 2022 containing access
restriction advertisements, together with an analysis of these advertisements
by Mr Duke . The point that CPS seeks to make with reference to the
Government Gazette s is that more than 60% of the interim advertisements
placed by access restriction applicants (other than CPS and its agent ), utilised
the same wording as that utilised by CPS in its dispute with the City, and that
only where objections were lodged , was there a requirement for a final
approval advertisement.
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[17] CPS further contends that there would be no prejudice to the City in permitting
the supplementary affidavit and that it would be entitled to file a supplementary
replying affidavit and deliver supplementary heads of argument. It sought costs
from the City in the event of opposition.
The City’s grounds of opposition
[18] The City opposes the application to file the supplementary answering affidavit on
the following grounds :
18.1. CPS seek to introduce a raft of irrelevant factual matter into what is
essentially a legal dispute between the parties;
18.2. the application is brought late without a full explanation as to the reasons
for its lateness ;
18.3. no proper case is made out in the founding affidavit for the relief sought ;
18.4. it is brought to unsettle the City’s legal argument and to relieve the pinch
felt by CPS once it when it had sight of the City’s heads of argument in
the main application ;
18.5. the City would be prejudiced by the further delay which would result from
the introduction of the supplementary affidavit;
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18.6. CPS sought costs when it was seeking an indulgence.
[19] As to relevance, t he City asserts that there are no factual disputes to be
determined in the main application but merely legal disputes. The legal dispute
is whether CPS’ implementation of the road closures contravenes the applicable
legislation and the terms and conditions of the letter confirming the City’s
intention to approve the road closures. In the absence of the authorised official
taking a decision to grant final approval , notification of the approval to CPS in
writing and publication of the final approval in a newspaper and Government
Gazette , the road closures implemented by CPS in the affected area are
unlawful.
[20] If they are unlawful , the implementation of the road closures constitutes an
offence and the relief claimed by the City must be granted , as the court is
enjoined to uphold the rule of law.
[21] The issues raised in CPS’ counter -application are also purely legal. In essence,
CPS' contention in the counter -application is that the intention to approve the
road closures automatically became final as to CPS’ knowledge, no comments
were lodged and therefore there was no need for a final decision, notification in
writing of final approve or for publication of a final approval.
[22] The argument is premised upon the City's alleged historic practi ce in road closure
applications of this nature . Based on this historic practice, the City is estopped
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from denying that the intention to approve became final and CPS also asserts a
legitimate expectation that the historic practi ce would apply to CPS ’
implementation of the road closures after it received interim approval.
[23] The City argues that the interim interdictory relief sought in the counter -
application cannot succeed as it would offend against the principle of legality.
[24] Therefore, as the issues before the court in the main application and counter -
application are purely legal in nature , CPS’ attempt to introduc e of a plethora of
irrelevant documents relating to prior practi ce is not warranted .
[25] On CPS’ own version , the documents now sought to be introduced relate to the
period 2018 to 2022, were in the public domain and were available to CPS when
it filed its answering affidavit on 24 January 2023 and its replying affidavit in the
counter -application on 3 February 2023. Mr Duke is not only the attorney of CPS ,
but was also the attorney responsible for the submission of road closure
application . CPS’ failure to timeously procure the new evidence has not been
explained in the founding affidavit to the interlocutory application. The application
to supplement at this late stage serves to further delay the proceedings and to
obstruct the final determination of the matter.
[26] The City sought a punitive costs order against CP S.
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CPS’ reply
[27] In its replying affidavit , CPS contends that it was only after the City filed its
replying affidavit in the main application and its heads of argument , that it became
apparent that the process contended for by the City differed vastly from the
process which ha s been factually applied.
[28] Mr Duke then undertook an inspection of all the Gazette s from September 2018
to May 2022, which revealed more than 60% of the interim adverts place d by
independent access restriction app licants utilise the same wording as the
disputed advert.
[29] The supplementary evidence is needed to support its defence of legitimate
expectation. Further , the supplementary evidence sought to be introduced is
material and constitutes objective evidence freely available which is not crafted
to fit a particular narrative.
[30] The prejudice to CPS if the supplementary affidavit were disallowed outweighs
the prejudice that the City would suffer consequent upon having to file a further
supplementary replying affidavit and in having to supplement the heads of
argument already delivered.
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Legal principles
[31] In motion proceedings, there are normally three sets of affidavits . The affidavits
serve the dual function of both pleadings and evidence.1
[32] The administration of justice is generally best served by the observance of the
rules concerning the number of sets and sequence of affidavits .2 Rule 6(5)(e)
does however provide that it is within the court’s discretion to permit the filing of
further affidavits. A definition of the ambit of the discretion is not easy or desirable.
The discretion is to be exercised judicially upon the consideration of the facts of
each case , and it is a question of fairness to both sides.3
[33] A party seeking to tender an affidavit out of sequence is seeking an indulgence.
The party seeking the indulgence should explain in the founding affidavit why the
affidavit is out of time and satisfy the court that, although late, having regard to
all the circumstances of the case, it should nevertheless be received.4 The
adequacy of the explanation offered for any deviation is always an important
factor as is the prejudice that might be occasioned to the other party. If there is
1 Radebe and Others v Eastern Transvaal Development Board 1988 (2) SA 785 (A) 793D -F; Minister
of Land Affairs and Agriculture and others v D &F Wevell Trust and others 2008 (2) SA 184 (SCA)
at para 43; Absa Bank Ltd v Kernsig 17 (Pty) Ltd 2011 (4) SA 492 (SCA) at para 23; Foize Africa
(Pty) Ltd v Foize Beheer BV and others 2013 (3) SA 91 (SCA) at para 30; Venmop 275 (Pty) Ltd and
another v Cleverlad Projects (Pty) Ltd and another 2016 (1) SA 78 (GJ) at para 8.
2 Broodie N.O. v Maposa and others 2018 (3) SA 129 (WCC) (Broodie) at para 27.
3 Milne NO v Fabric House (Pty) Ltd 1957 (3) SA 63 (N) at 65A ; Broodie, ibid.
4 James Brown & Hamer (Pty) Ltd (previously named Gilbert Hamer & Co Ltd) v Simmons NO 1963
(4) SA 656 (A) 660D -H.
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an adequate explanation that negatives any suggestion of mala fides or culpable
remissness for the failure to put the evidence before the court at the earlier stage,
a court should in cline towards allowing the affidavits to be filed.5 The court must
be satisfied that no prejudice is caused by the filing of further affidavits which
cannot be remedied by an appropriate order as to costs.
[34] Supplementation may be justified if something new or unexpected emerged from
a reply.6
[35] The factors that the court will consider in the exercise of its discretion are:7
35.1. the reason why the evidence was not produced timeously;
35.2. the degree of materiality of the evidence;
35.3. the possibility that it may have been filed to “relieve the pinch of the
shoe”;
35.4. the balance of prejudice to the applicant if the application is refused in
relation to the prejudice to the respondent if it is granted;
5 Transvaal Racing Club v Jockey Club of South Africa 1958 (3) SA 599 (W) 604A -E.
6 Afric Oil (Pty) Ltd v Ramadaan Investments CC 2004 (1) SA 35 (N) 38J - 39A.
7 Mkwanazi v Van der Merwe 1970 (1) SA 609 (A) 626A -G; Porterstraat 69 Eiendomme (Pty) Ltd v
PA Venter Worcester (Pty) Ltd 2000(4) SA 598 (C) 617A -E.
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35.5. the stage reached in the litigation proceedings ;
35.6. the possibility of an appropriate order cost to address the late filing;
35.7. the general need for finality in judicial proceedings; and
35.8. the appropriateness of visiting the attorney's fault upon the head of his
client.
[36] These factors should be considered together, bearing in mind the need for the
court to benefit from all the facts before it makes a decision, together with the
need to bring finality to a case .
Analysis
[37] CPS’ reason for the seeking to introduce the supplementary affidavit is that it
relates to vital documents which only came into its possession after the filing of
the last set of affidavits. Further, that the new evidence will serve to reduce the
disputes of fact in the main application.
[38] Beyond stating that the information was obtained after the last set of affidavits
was filed, there was no explanation for the delay in filing the supplementary
affidavit , bearing in mind that the last affidavit in the main application and counter -
application was delivered on 3 February 2023 . In reply, CPS asserts that it
appreciated the need for supplementation based on the City’s replying affidavit
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in the main application and the City’s heads of argument. These documents were
filed on 30 January 2023 and 22 February 2023 respectively.
[39] In argument, counsel for CPS submitted that the answering affidavit in the main
application was delivered with significant time constraints bearing in mind that
the main application was launched on 18 January 2023 , and the answering
affidavit was delivered by 24 January 2023. Whilst the explanation was not
contained in the founding affidavit, the sequence of the filing of affidavits and that
the main application was instituted on an urgent basis is not in dispute . It also
appears that t he parties sought to settle the dispute , resulting in the litigation
proceedings being held in abeyance until the end of April 2023 . The application
to supplement was delivered on 15 August 2023 .
[40] In this application, there is no agreement between the parties as to the
characterisation of the main dispute. The City contends that the dispute is purely
legal, rendering the introduction of the introduction of further factual evidence
irrelevant. CPS’ case is that the City contend s for a practi ce that it did not follow
before , and that the introduction of the Government Gazettes published during
the period 2018 to 2022 and the analysis of these Government Gazettes is
needed for its defence of legitimate expectation. Whether an expectation has
been created is a question of fact to be answered in relation to the circumstances
of the particular case.8 Viewed objectively, t he evidence which CPS seeks to
8 Hoexter and Penfold, Administrative Law in South Africa , 3rd edition, p578.
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introduce may have a bearing on its defense of legitimate expectation . I am
therefore unable to find that the material sought to be introduced in the
supplementary affidavit is wholly irrelevant or immaterial to the issues to be
determined in the main application , and that if falls to be ex cluded on this basis .
I consider that it would be in the interests of justice to permit CPS to put before
the court evidence which it states is material to its case. The City remains at
liberty to argue immateriality in the main proceedings. Whether an expectation
was created on the facts , and what weight is to be attributed to the new evidence,
is for the court hearing the main application and the counter -application to
determine with due regard to all the facts before it.
[41] CPS’ case is that it appreciated the need for the supplementary affidavit after
receipt of the City’s replying affidavit and its heads of argument. The City argues
that the introduction of the new material is to relieve the pinch of the shoe and to
unsettle the City’s legal argument. CPS places significant reliance on the City’s
heads of argument , and asserts that the issues raised in the heads of argument
were not raised in the City’s papers. Given that it is the affidavits which constitute
the evidence in motion proceedings and not counsel’s heads of argument,
reliance on the City’s heads of argument cannot constitute a basis for
supplementation.
[42] Rather, i t appears that CPS raised its defense of legitimate expectation
timeously , but only fully appreciated the potential consequences of its omission
to fully set out the supporting facts underpinning th is defense on receipt of the
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City’s replying affidavit and heads of argument . It was remiss, but there is no
evidence that the omission was deliberate or mala fides . If, as the City argues,
the factual evidence will be found to be immaterial to the legal issues in dispute,
the introduction of CPS’ evidence ought not to displace the City’s legal argument .
This is for the court hearing the main application to determine , and does not
constitute a basis to exclude the evidence sought to be introduced in the
supplementary affidavit at this stage.
[43] In regard to the stage of the proceedings, CPS seeks to introduce its
supplementary answering affidavit at a stage when the main application has not
yet been heard, and where a date for the hearing of the matter on the basis of a
special allocation has not y et been set. CPS only sought to supplement its
answering affidavit in the main application . The City envisage s that, consequent
upon this application to supplement, it will be required to file a supplementary
replying affidavit in the main application , as well as a supplementary answering
affidavit in the counter -application . The additional costs to be incurred by the City
will be provided for in an appropriate costs order.
[44] Both parties assert prejudice and that they have faced complaints about the road
closures: the City from persons affected by what it contends are the unlawful road
closures and CPS from residents within the affected area who are concerned that
there is no finality or certainty regarding the lawfulness of the road closures . The
dispute is of significant importance to both parties and the legal issues raised in
the main application and counter -application are not without complex ity. In this
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regard, the City has filed extensive heads of argument dealing with issues of rule
of law, legality, the interpretation of the relevant legislation (including the City’s
policies), estoppe l and legitimate expectation. CPS contends that the value of the
structures already erected to implement the road closures runs into the millions
of rands.
[45] I am persuaded that t he prejudice to CPS if it were precluded from presenting
evidence which it contends is material, outweighs the prejudice to the City in
having to respond to the supplementary answering affidavit , and the delay that
will result therefrom .
Costs
[46] CPS seek an indulgence. Despite being the party seeking the indulgence, it did
not tender the City’s costs in the supplementation application, but sought costs
from the City in the event of opposition , and also contended that the City was to
file its supplementary replying affidavit within 10 days . The City’s opposition was
not unreasonable. The proposition that the City is to file its supplementary
replying affidavit within 10 days given the volume of new evidence introduced by
CPS in its supplementary answering affidavit is manifestly unreasonable.
[47] CPS delay ed in bringing the supplementation application timeously . On CPS’
own version, it appreciated that it required supplementation after the filing of the
City’s replying affidavit on 3 0 January 2023. Th is notwithstanding, CPS agreed
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to a joint letter addressed to the DJP on 16 February 2023 in which it stated that
no further affidavits were to be filed. There was no caveat to the submission on
the part of CPS. By the time this application was heard, seventeen months had
passed from the time that the parties jointly sought a special allocation.
[48] In consequence of CPS’ conduct , the City, through no fault of its own, it is now
to be put to the additional expense of having to supplement its replying affidavit
delivered on 30 January 2023 as well as its heads of argument served on 22
February 2023. The City argues that it may have to file a further additional
answering affidavit in the counter -application.
[49] It is common cause that the defense of legitimate expectation was raised at the
outset. On balance, CPS’ failure to fully explai n the delay in bringing the
supplementation application is a factor to be taken into account in the award of
costs , rather than it be deprived of the opportunity to present evidence which it
contends is material and may limit the disputes of fact in the main application.
[50] CPS are to bear the costs of the opposed application to supplement its answering
affidavit a s well the costs to be incurred by the City in having to supplement its
replying affidavit , any further answering affidavit in the counter -application and its
heads of argument on scale C , being the appropriate scale with due regard to the
complexity of the matter, the volume of the new evidence sought to be introduced
by CPS at this late stage and the importance of the matter to both parties.
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Order
[51] In the circumstances, the following order is made :
51.1. The applicant (CPS) is granted leave to supplement its answering
affidavit in the main application with the supplementary answering
affidavit attached to the interlocutory application marked “FA1” .
51.2. The respondent (the City) is granted leave to file a supplementary
replying affidavit in answer to the supplementary answering affidavit
(“FA1”) and any supplementary answering affidavit to the counter -
application on/or before 1 7 May 2025 .
51.3. In the event that the City files a supplementary answering affidavit to the
counter -application, CPS is to file its replying affidavit thereto within 10
days thereafter.
51.4. The costs of the opposed application to supplement is to be borne by
CPS on scale C.
51.5. The costs to be incurred by the City in having to supplement its replying
affidavit in the main application and its answering affidavit in the counter -
application delivered on 30 January 2023 , as well as its heads of
argument delivered on 22 February 2023 is to be borne by CPS on scale
C.
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___ _______
GOEDHART AJ
ACTING JUDGE OF THE HIGH COURT
Date of hearing: 22 July 2024
Date of judgment: 17 March 2025
(This judgment was handed down electronically by circulation to the parties’
representatives via email.)
For the Applicant (CPS) : Mr R Pottas
Instructed by: Duke Attorneys
For the Respondent: Mr C van der Merwe
Instructed by: Moodie & Robertson Attorneys