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IN THE HIGH COURT OF SOUTH AFRICA
(NORTHERN CAPE DIVISION, KIMBERLEY)
CASE NO.: 1199/2023
Date heard: 21-02-2025
Date delivered: 14-03-2025
In the matter between:
SOL PLAATJE LOCAL MUNICIPALITY
And
MAKONE CONSUL TING ENGINEERS (PTY) LTD
(Registration number: 2004/112475/23)
THE SHERIFF OF KIMBERLEY AND GALESHEWE
In re:
MAK ONE CONSUL TING ENGINEERS (PTY) LTD
And
SOL PLAATJE LOCAL MUNICIPALITY
CORAM: WILLIAMS J:
~ JUDGMENT
WILLIAMS J: Applicant
1st Respondent
2"d Respondent
Plaintiff
Defendant
1. On 10 December 2024 the applicant, the Sol Plaatje Local Municipality (the
Municipality) obtained an urgent interim order pending the return day that
inter alia: the second respondent, the Sheriff of Kimberley and Galeshewe,
be interdicted and restrained from removing the vehicles attached in terms
of a writ of execution issued on 18 June 2024; and that the execution and 11
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operation of the default judgement order dated 5 April 2024 be suspended
pending the finalisation of the rescission application in Part B of the
applicant's Notice of Motion.
2. The background to this application can be summarized as follows:
2.1 The first respondent, Makone Consulting Engineers (Pty) Ltd
(Makone), instituted an action against the Municipality for payment
for services rendered on 29 June 2023.
2.2 The Municipality did not defend the matter and on 5 April 2024
default judgment was granted against the Municipality for payment
of the amount of R806 500, 57 plus interest thereon.
2.3 On 18 June 2024 a writ of execution was issued.
2.4 On 30 September 2024 the sheriff attached two motor vehicles
belonging to the Municipality.
2.5 On 3 December 2024 Makone's attorneys instructed the Sheriff to
remove the vehicles. The Municipality indicated that it would settle
the debt by 6 December 2024.
2.6 Instead of payment, the Municipality provided an undertaking in
terms of Rule 45(5) to the Sheriff on 5 December 2024.
2. 7 On 10 December 2024 the Sheriff attended the offices of the
Municipality to remove the assets, which action led to the bringing of
the urgent application.
3. The application was brought on a couple of hours notice to Makone, who
managed to instruct its attorney and counsel to oppose the application,
albeit without opposing papers. The Sheriff was only served with the
application on 11 December 2024 and has to date not opposed the
application.
4. When the matter served before me on the extended return date of 21
February 2025 a complete set of affidavits had been filed as well as heads
of argument.
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5. Makone opposed the application on the basis that it was not urgent, that the
Rule 45(5) security was defective and that the Municipality has not shown
that it would suffer irreparable harm should the vehicles be removed and
sold. It also contended that it would suffer severe financial prejudice should
the operation and execution of the default judgment be suspended. Lastly
that the Municipality does not have good prospects of success with the
rescission application.
Urgency
6. The attack on the lack of urgency is made on the basis that it was self-
created and that the R 45(5) security was a ruse to create urgency where
none existed with regard to the suspension of the writ of execution . The
Sheriff attached the motor vehicles on 30 September 2024 and only after
an attempt to remove the vehicles on 3 December 2024 did the Municipality
provide the sheriff with the R 45 (5) security on 5 December 2024 which
was in any event defective and prompted another attempt at removal on 10
December 2024.
7. On behalf of the Municipality it was argued that the application for the
interdict could not have been brought before 10 December 2024 because
until that date the Municipality was not informed by the Sheriff that the R
45(5) security was defective, which is in any event denied by the
Municipality. Had the application not been brought on that day the
Municipality would not have been afforded substantial redress if the matter
were to enrolled in the normal course. The vehicles would by then have
been sold and would render normal proceedings superfluous. It was also
argued by Mr Groenewaldt for the Municipality that this matter did not
involve normal private litigants but is one which involves taxpayers' monies
and that the court should not allow the potential abuse of tax payers' funds
because of non-compliance with technical requirements. So that even if I
find that the urgency was self-created, the interests of justice dictate that
any potential misuse of public funds trump any form of self-created urgency.
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8. R 45(5) reads as follows:
"The court may, on application , suspend the operation and execution of any
order for such period as it may deem fit: Provided that in the case of an
appeal, such suspension is in compliance with section 18 of the Act".
9. Nowhere in his Rule does it appear that the security can only be given on
the day of removal by the Sheriff of the attached assets. Neither the
Municipal ity, or its attorneys could in any event have laboured under such
an impression given the fact that the Municipality had provided the Sheriff
with the challenged security on 5 December after the first attempt at removal
on 3 December and before the attempt on 10 December. This argument
does not hold any water.
10. However, given the fact that the sheriff had not informed the Municipality of
the alleged defects in the security, before 10 December, when she returned
to remove the vehicles, thus denying the Municipality an opportunity to
consider and attend to such alleged defects, in my view, rendered the
application urgent.
The interdict
11. The interdict sought is premised on the R 45 (5) undertaking given to the
Sheriff. The argument is that there can be no prejudice to Makone should
the vehicles remain in the possession of the Municipality until the date of a
sale in execution. On the other hand, the Municipality will suffer irreparable
harm if the vehicles are removed in that the particular vehicles are used by
the Mayor and Speaker and without these vehicles service delivery will be
impaired. Furthermore the tax payers will have to cough up for the storage
fees of the vehicles before the sale thereof. It is argued further that I have
a discretion to make such an order even if it is found that the R 45 (5)
security is not valid.
12. I do however not have to deal with the validity or not of the security. The
problem which I have with the interdict sought and granted on 10 December
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2024 is that it is a final interdict and not at all what is envisage with the
undertaking in terms of R 45 (5).
13. No case has been made out for final relief and it is in any event
unsustainable. No court would permanently restrain a party from
performing its legitimate functions.
The suspension of the order by default
14. In Gois tla Shakespeare's Pub v Van Zyl and Others 2011(1) SA 148 (CLC),
Waglay J, as he then was, summed up the principles for the granting of a
stay of execution as follows at paragraph 37 thereof:
"(a) A court will grant a stay of execution where real and substantial justice
requires it or where injustice would otherwise result.
(b) The court will be guided by considering the factors usually applicable to
interim interdicts, except where the applicant is not asserting a right, but
attempting to avert injustice.
(c) The court must be satisfied that:
(i) the applicant has a well-grounded apprehension that the
execution is taking place at the instance of the respondent(s) ; and
(ii) irreparable harm will result if execution is not stayed and the
applicant ultimately succeeds in establishing a clear right.
(a) Irreparable harm will invariably result if there is a possibility that the
underlying causa may ultimately be removed, ie where the underlying
causa is the subject-matter of an ongoing dispute between the parties.
(b) The court is not concerned with the merits of the underlying dispute -
the sole enquiry is simply whether the causa is in dispute."
15. In BP Southern Africa (Ply) Ltd v Mega Burst Oils and Fuels (Pty) Ltd
2022(1) SA 162 (GJ), the court however held that the principles laid down
in the Gois matter are guidelines and that the court seized with such an
application , could, in its discretion consider the merits of the dispute to
determine whether an injustice will be done. I align myself with this view,
especially in circumstances where the default was wilful.
16. In casu, Mr Groenewaldt has in any event invited me to look at the defence
raised by the Municipality in the application for rescission. I must however
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at this state mention, that there is no proper rescission application in this
matter.
17. Although there is reference in the Notice of Motion to the rescission
application being part B of the application, there is no clearly demarcated
Part B in the body of the founding affidavit. The averments made in support
of the suspension application appear to be the same as those relating to the
application for rescission. It is understandable that the Municipality, in the
haste with which the papers were prepared, did not have time to fully deal
with the rescission application (and therefore also the relief sought that it be
granted leave to supplement its papers). The problem is that
supplementation of the founding affidavit is sought only after the
confirmation of the rule nisi and within 60 days from such confirmation. I
am left in the dark as to whether the rescission application is or will be
brought in terms of R 31 (2)(b), R 42(1) or the common law. More with
regard to this later herein.
18. The Municipality explains in its founding affidavit that it had been informed
by a Mr O Moagi, its technician of Water and Sanitation , that it had no
defence against the action brought by Makone. On the basis of this advice
it did not defend the action. Default judgment was subsequently granted on
5 April 2024.
19. During middle October 2024, the Municipality 's City Engineer, Water and
Sanitation , a Mr P Mukosi became aware of the claim and expressed the
view that the professional fees of Makone were excessive and not in line
with the Engineeri ng Council of South Africa's (ECSA) guidelines. In terms
of these guidelines the fees of Makone, who was appointed by the
Municipality as a consulting engineer for the reconstruction of toilet top
structures in certain areas of Kimberley, are calculated at 10% of the value
of the entire project. The value of the projec(being R11 991130, 17,
Makone was thus only entitled to a fee of R1 199 130, 00.
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20. The Municipality alleges that to date it had paid Makone R2 446 305, 68 in
respect of professional fees which amounts to an overpayment of
R1 247 192, 68. It is therefore submitted that the Municipality not only has
a bona fide defence to Makone's action but that it also has a counterclaim
for the amount it was overpaid.
21. On the basis thereof Mr Groenewaldt submitted that the Municipality has a
triable defence and that the Court should exercise its discretion in favour of
the suspension of the warrant of execution pending the rescission
application which is brought in order to remedy the misappropriation of tax
payers money.
22. Makone in its answering affidavit, denies that the entire project value was
R 11 991 130, 17 and states that this value only applied to the construction
amount for implementation of Phase 2.1 of the project. In addition it states
that the fees charged by itself not only constituted the normal professional
fees (of 10%) but also included costs for additional services and
disbursements which it was entitled to charge in terms of the Service Level
Agreement entered into with the Municipality.
23. I need not say much about the defence raised by the Municipality , that is
left for the court hearing the rescission application, which can be brought
whether or not the relief in terms of R 45 (A) is granted. However, I do need
to mention that if the amount owed to Makone for services rendered merely
comprised the professional fee of 10% of the project value, it would have
been most irresponsible for the Municipality, entrusted with tax payers
money, to have made payment way above what was due. In its replying
affidavit the Municipality states that it had made total payments to Makone
in the amount of R3 292 641 , 17, of which R2 446 305, 68 represented
professional fees, which on my calculations , based on the Municipality's
version of only being liable for 10% of the project, means an overpayment
of R2 093 511, 17, which is contradictory to what is stated in the founding
affidavit.
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24. There are other aspects of the rescission application which are also
unsatisfactory. So for instance the Municipality does not explain why the
rescission application was not brought within a reasonable time after it had
been informed of its alleged overpayments to Makone during October 2024.
On 15 November 2024 the attorneys for the Municipality sent an e-mail to
the attorneys for Makone seeking an undertaking that they withdraw the
attachment and removal of the vehicles, pending a rescission application
which would be brought by the Municipality before 1 December 2024. Such
application did not materialise before 1 December 2024 and I dare to say
that it is yet to materialise.
25. Rule 31(2)(b) requires of a defendant to apply for the rescission of a
judgment within 20 days of acquiring knowledge of such judgment. The
Municipality, at best for it, would have had knowledge of the judgment at the
latest on 30 September 2024 when the warrant of execution was served on
it.
26. Rule 42(1) requires certain jurisdictional facts to exist before a court can
exercise its discretion to set aside an order in terms of the Rule. This is
however not an order or judgment in which there is an ambiguity, or a patent
error or an omission in terms of R 42 (1)(b), nor is it an order or judgment
granted as a result of a mistake common to the parties in terms of R 42
(1)(c).
27. In Lodhi 2 Properties Investments CC and Another v Bondev Developments
(Pty) Ltd 2007(6) SA 87 (SCA) the SCA held at paragraph 27 thereot in
regard to R 42 (1)(a) that:
"[27) Similarly, in a case where a plaintiff is procedurally entitled to
judgment in the absence of the defendant the judgment if granted
cannot be said to have been granted erroneously in the light of a
subsequently disclosed defence. A court which grants a judgment by
default like the judgments we are presently concerned with, does not
grant the judgment on the basis that the defendant does not have a
defence: it grants the judgment on the basis that the defendant has
been notified of the plaintiff's claim as required by the rules, that the
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defendant, not having given notice of an intention to defend, is not
defending the matter and that the plaintiff is in terms of the rules
entitled to the order sought. The existence or non-existence of a
defence on the merits is an irrelevant consideration and, if
subsequentl y disclosed. cannot transform a validly obtained
iudgment into an erroneous iudgment".
(own underlining)
28. Based on the Lodhi judgment, the Municipality would also not be able to
rely on Rule 42(1 )(a).
29. In terms of the common law a judgment can be set aside where it was
granted by default if good cause is shown. "Good cause" entails that a
reasonable explanation must be given for the default, the applicant must
show that his application is made bone fide and he has to show on the
merits that he has a bona fide defence which prima facie carries some
prospect of success. The court however still retains its discretion which
must be exercised after a proper consideration of the relevant
circumstances. In these circumstances the Municipality would in my view
have a major obstacle to overcome, merely by providing an acceptable
reason for its default.
30. That being said, if one applies the requisites for an interim interdict to the
application to suspend the execution of the default judgment, as stated in
the Gois matter supra and other similar matters, the Municipality has to
show inter alia that irreparable harm will result if the execution is not stayed
and the applicant ultimately succeeds in establishing a clear right. In its
founding affidavit the Municipality states that it will suffer irreparable harm
in the form of paying unnecessary storage and the impact on service
delivery if the vehicles are removed. As mentioned the vehicles are those
used by the Mayor and Speaker in their official capacities. No explanation
is given as to the impact the execution of the writ would have on service
delivery. It cannot be that there are no other municipal vehicles which these
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officials can use in performing their duties. Likewise no information . has
been given as to the costs of storage. The applicant has furthermore failed
to show that Makone is "man of straw" and that it would not be able to
recoup such losses in the event a rescission of the default judgment is
granted. Meanwhile Makone, who has done everything according to the
Rules, is expected to wait for payment of the judgment debt until the
rescission application if finalised.
31. In my view the Municipality has failed to show that it would be in the interest
of justice to have the execution suspended and as a result the rule nisi
should not be confirmed .
Costs
32. There is no reason why costs should not follow the event. Mr De Heus who
appeared for Makone submitted that costs on scale B be allowed should the
rule nisi be discharged. Such a cost order would, in my view be appropriate .
The following order is made.
The rule nisi issued on 10 December 2024 is discharged with costs on the
party and party scale, scale B.
CC WILLIAMS
JUDGE
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For Applicant: Mr S Groenewaldt
Towell & Groenewaldt Attorneys
For Defendant: Adv C De Heus
R Masilo Attorneys
c/o Mosikare Attorneys