About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Kwazulu-Natal High Court, Pietermaritzburg
SAFLII
>>
Databases
>>
South Africa: Kwazulu-Natal High Court, Pietermaritzburg
>>
2025
>>
[2025] ZAKZPHC 62
|
|
Tactical Security Services CC v Newcastle Local Municipality and Others (5214/2024) [2025] ZAKZPHC 62 (17 June 2025)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
Case
No.: 5214/2024
Before:
Honourable Ncube J
Heard
on:
14
April 2025
Delivered
on:
17 June 2025
In the matter between:
TACTICAL
SECURITY SERVICES CC
Plaintiff
and
NEWCASTLE LOCAL
MUNICIPALITY
First Respondent
THE MUNICIPAL MANAGER:
NEWCASTLE
MUNICIPALITY
Second Respondent
FBL TRADING ENTERPRISE
(PTY) LTD
Third Respondent
AMABUSO SECURITY
SOLUTIONS (PTY) LTD
Fourth respondent
MABOTWANE SECURITY
SERVICES CC
Fifth Respondent
IZINHLOLI HOLDINGS
(PTY) LTD
Sixth Respondent
ORDER
The
following order is granted:
1.
The
rule nisi
issued by the Honourable Mr Justice Chili on 04
April 2024 is confirmed.
2.
The first and second respondents, jointly and severally, one paying
the other to be absolved, are ordered
to pay the applicant’s
party and party costs on Scale “B”
JUDGMENT
Ncube
J
Introduction
[1]
During the argument of this application, all the parties agreed that
the merits were now
moot
and need not be argued further.
The only issue remaining for the determination by this court is the
issue of costs.
The applicant, Tactical Security Services CC
(“Tactical Security”) seeks costs against the Newcastle
Local Municipality
(“the Municipality”). The basis
for the cost order sought is that the Municipality was late in
issuing the undertaking
that the third party service providers’
appointment would only start from 01 May 2024 and not before 30 April
2024.
Tactical Security alleges that the undertaking was
provided after Tactical Security had incurred costs already.
Factual
Background
[2]
On 23 April 2022, a written Service Level Agreement (“the SLA”)
was concluded between
Tactical Security and the Municipality.
In terms of the SLA ,Tactical Security was going to provide security
service
at the various municipal premises including provision of VIP
protection. The contract was going to terminate on 30 April
2024.
[3]
On 20 September 2023 the Municipality sought to terminate the
agreement prematurely, consequently,
Tactical Security brought an
application in an endevour to enforce its rights in terms of the
agreement. The relief sought
was granted. The
Municipality’s purported termination of the agreement was
declared invalid and unlawful. The
third to sixth respondents
had commenced rendering security services to the Municipality on 01
April 2024 as the Municipality had
erroneously provided the third to
sixth respondents with letters of appointment.
[4]
In a letter addressed to the Municipality, the attorney for Tactical
Security requested a written
undertaking from the Municipality that
the Municipality would abide by the terms of the agreement and honour
the termination date
being 30 April 2024. That undertaking was
sought before the close of business on 02 April 2024. In the
morning of 02
April 2024, Mr Marais from the Municipality gave a
verbal undertaking to Tactical Security representative that Tactical
Security
could continue with provision of security services to the
Municipality, promising at the same time to confirm the verbal
undertaking
with an e-mail. The e-mail was never sent.
[5]
Despite the verbal undertaking, on 02 April 2024, the third
respondent’s employees were
on site at Newcastle Civic Centre
and the sixth respondent employees were on site at central B
substation. The written undertaking
was given on 03 April 2024
at 16:18 after unissued urgent application papers had been served by
e-mail to both the Municipality
and the Municipal Manager. The
urgent application was set down for hearing on 04 April 2024 at
12:41. On 04 April 2024,
before the hearing, the attorney for
the Municipality sent an e-mail to the attorney representing Tactical
Security to the effect
that the Municipality was going to honour the
agreement and allow Tactical Security to render services till the end
of April 2024.
The Municipality requested that the application
be removed from the roll, which was done.
Issues
[6]
The issue to be determined is whether Tactical Security is entitled
to the costs of the application.
The contention by the
Municipality is that the default was remedied before the application
papers were issued and served.
However, at the same time, the
Municipality does not deny that when a written undertaking was
provided, unissued application papers
had been prepared and served by
e-mail. In that process the applicant incurred costs
Approach
to Issue of Costs
[7]
The award of costs is in the discretion of the presiding judicial
officer. As a general
rule, the successful party should not be
out of pocket. To that end, in
Ferriera
v Levin
N.O. and Others
,
Vryenhoek
and Others v Powell N.O. and Others
[1]
Ackerman J said:
“
The Supreme Court has
over the years, developed a flexible approach to costs which proceeds
from two basic principles, the first
being that the award of costs,
unless expressly otherwise enacted, is in the discretion of the
presiding judicial officer, and
the second that the successful party
should, as a general rule, have his or her costs. Even this
second principle is subject
to the first. The second principle
is subject to a large number of exceptions where the successful party
is deprived of his
or her costs. Without attempting either
comprehensiveness or complete analytical accuracy, depriving
successful parties of
their costs can depend on circumstances such
as, for example, the conduct, of the parties and the conduct of their
legal representatives,
whether a party achieves technical success
only, the nature of the litigants and the nature of the proceedings.
I mention
these examples to indicate that the principles which have
been developed in relation to the award of costs are by their nature
sufficiently flexible and adaptable to meet new needs which may arise
in regard to constitutional litigation……..”
[8]
The Municipality concedes that it made an error in appointing new
service providers before Tactical
Security contract came to an end.
However, the Municipality was wrong in not providing a written
undertaking on time before
the applicant commenced preparing the
papers for the urgent application.
Scale
of Costs
[9]
The Tactical Security seeks costs on attorney and client scale.
Tactical Security cannot
justify the award of punitive costs.
Although the Municipality did not provide undertaking in time, such
undertaking was
provided immediately thereafter. Except for the
preparation and service of the papers by e-mail, not much had been
done by
Tactical Security. The conduct of the Municipality,
specifically with regard to Tactical Security costs in the
preparation
and service of the papers does not warrant an award of
punitive costs against both the Municipality and the Municipal
Manager.
Order
[10]
In the result, I make the following order:
1.
The rule nisi issued by the Honourable Mr Justice Chili on 04 April
2024 is confirmed.
2.
The first and second respondents jointly and severally, one paying,
the other to be absolved, are ordered
to pay the applicant’s
party and party costs on Scale “B”
NCUBE J
JUDGE OF THE HIGH
COURT
Appearances
Heard:
14 April 2025
Delivered:
13 June 2025
For the applicant:
N. S Beket
Instructed by:
Calitz Crokart &
Associates
19 Village Road
Kloof
Durban
Email:
calcro@calitzcrokart.co.za
cristina@grossattorneys.com
Ref:
IC/rc/01T019032
c/o Austen Smith
Attorneys
1 Highgate Drive
1 George MacFarlane
Lane
Wembley
Pietermaritzburg
Email:
callumsmthe@austensmith.co.za
Ref:
CCS/Ranitha/Q2/C0440/22
For the 1
st
& 2
nd
respondent:
J W Temlett
Instructed by:
T.J. Mphela
Attorneys
45 Bird Street
Newcastle
Email:
james@tjmphelaattorneys.co.za
Ref: Mr TJ Mphela
c/o Yashica Chetty
Attorneys
Suite 1, 365
Langalibalele Street
Pietermaritzburg
[1]
1996(2)
SA 621 (CC) Para 3