REPUBLIC OF SOUTH AFRICA
THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
DELETE WHICHEVER IS NOT APPLICABLE:
(1) R EP ORTABL E : --¥eS/NO
(2) OF INT ER EST TO OTH ER JU DG ES ¥eS/NO
(3) R EVISED:
DATE : 01/09/2025 SIGNA TUR E :
CASE NR: 2024-956869
In the m atter between:
INTEGRITY FORENSIC SOLUTIONS CC APPLICANT
and
THE MINISTER OF WATER AND SANITATION FIRST RESPONDENT
THE UMNGENI UTHUKELA WATER BOARD SECOND RESPONDENT
Delivered: This judgment was prepared and authored by the Acting Judge whose name is
reflected and is handed down electronically by circulation to the Parties I their legal
representatives by email and by uploading it to the electronic file of this matter on
CaseLines. The date of the judgment is deemed to be 01 September 2025.
___________________________________________________________________
JUDGMENT
___________________________________________________________________
MARUMOAGAE AJ
1. The Applicant brought an application to compel the First Respondent to decide
whether to investigate the Second Respondent’s accounting authority in terms of
the relevant provisions of the Public Finance Management Act. 1 The Applicant
further sought an order that, should the First Respondent decline to investigate the
Second Respondent’s accounting authority, the First Respondent must
communicate her reasons to the Applicant. This Application was brought in May
2024.
2. On 13 June 2024 , through the office of the State Attorney, the First Respondent
wrote a letter to the Applicant indicating that she will investigate the allegation s
made by the Applicant against the Second Respondent’s accounting authority. On
1 August 2024, the First Respondent personally wrote a letter to the Applicant ,
advising that the issue raised by the Applicant is being investigated and that she
will consider the matter after the completion of the investigation . The First
Respondent opposed this Applicant and filed its answering papers in September
2024.
3. Since the First Respondent advised the Applicant that she decided to investigate
the allegations made by the Applicant, the matter has become moot , and there is
no need to consider the merits of the application. However, the Applicant argues
that it is entitled to be awarded costs of this application because the First
Respondent decided to investigate only after this application had been instituted.
The First Respondent is of the view that it should not be ordered to pay the
Applicant’s costs. The issue is whether the First Respondent should be ordered to
pay the Applicant’s costs of this application.
1 1 of 1999.
4. The Applicant also brought an applicati on for leave to deliver the letter of
appointment of Nexis Forensic Services (Pty) . It was argued on behalf of the
Applicant during the oral hearing that the purpose of this letter is to provide the
court with the chronology of events. The First Respondent did not oppose the filing
of this letter.
5. The reason the parties agree that it is unnecessary to determine the merits of this
application is not because the Applicant withdrew the application. Had the
Applicant withdrawn the application, costs would have been granted against it. This
is what transpired in Serwada v Minister of Home Affairs for RSA ,2 where the
Applicant brought an urgent application seeking an order declaring the seizure of
his passport and a temporary residence permit to be unlawful. However, before the
matter could be heard, the Minister of Home Affairs returned the Applicant’s
passport and a temporary residence permit to him leading to the Applicant to
withdraw the application.
6. The court in Serwada noted that ‘[o]rdinarily a party who withdraws his/her
application is considered as having conceded the merits and, thus, is obliged to
make a tender of the costs ’.3 However, in ordering the Minister of Home Affairs ,
who was the Respondent, to pay the Applicant’s costs, the court convincingly held
that:
‘[i]n this case what triggered a withdrawal of the application was a response by the
respondent which satisfied the relief sought in a way that exonerated the Court from
making a determination whether or not the passport and temporary resident certificate
should be returned to the applicant. .... It seems to me that the Court is not confronted with
an ordinary situation of a concession on the merits made through the withdrawal of the
application. That the withdrawing party should bear the costs cannot be re garded as a
hard and fast rule in the circumstances of this case. The Court has a general jurisdiction
hard and fast rule in the circumstances of this case. The Court has a general jurisdiction
to make a proper allocation of costs in the exercise of its judicial discretion ..’.
2 [2011] JOL 27643 (ECM).
3 Ibid para 3.
7. Similarly, in VDM v VDM,4 the owner of the property sought an order directing the
tenant to vacate his property as a matter of urgency. By the time the application
was called in the urgent court , the tenant had vacated the premises. In awarding
the property owner costs against the tenant , who was the Respondent in the
matter, the court held that:
‘[t]he position is consequently that the applicant has brought an application of
undisputed urgency, which was justified and well -founded, in order to address
unlawful action on the part of the respondent. The respondent, by his actions, has
essentially conceded the application. The usual rule in such circumstances is that an
applicant should be awarded costs. I see no reason to depart from that’.
8. In Sapirstein and Others v Anglo African Shipping Co (SA) Ltd , the Appellate
Division (as it then was) held that:
‘[g]enerally speaking, awards of costs are, of course, in the discretion of the Court
and that discretion must be judicially exercised whenever the need arises’.5
9. Prithilal v Akani Egoli (Pty) Ltd and Another, the Constitutional Court held that
‘[t]he judicial power to order costs requires the court to exercise a discretion. Unless
a judicial officer gives reasons, it is impossible to know whether the discretion was
exercised at all or, if it was, whether it was exercised properly.6
10. In Hull v Free Market Foundation (Southern Africa) and Others , it was held that
where the court is not obliged to consider the merits of the application because the
Respondent had substantially complied with the orders sought by the Applicant
even before the court determined the matter:
4 (16838/2024) [2024] ZAWCHC 210 (6 August 2024).
5 1978(4) SA 1 (A) at 14.
6 (CCT 290/24) [2025] ZACC 5; 2025 (8) BCLR 921 (CC) (24 April 2025) para 8. This principle was
quoted with approval in Intercontinental Exports (Pty) Ltd v Fowles [1999] 2 All SA 304 (A) para 24
and Road Accident Fund and Others v Hlatshwayo and Others [2025] 2 All SA 333 (SCA) para 24.
‘… the relevant considerations in such a case are (a) the merits of the application; (b) the
manner in which the parties conducted themselves … and (c) whether any party took
unnecessary steps or adopted a wrong procedure’.7
11. It appears that even though the matter has become moot . There is no need to
‘reflect’ on the possible outcome of this case had the First Respondent not decided
to investigate the Second Respondent. The fact is that there is no longer a dispute
on the merits. However, in light of Hull, there is nothing that precludes the court
from considering the merits of the case.
12. On 26 February 2024, the Applicant delivered a charge to the First Respondent
against the Second Respondent’s accounting authority. The charge related to
various complaints of misconduct allegedly committed by the Second
Respondent’s board.
13. The Applicant alleges that it has locus standi in this matter because it is an
interested party and the relevant provisions of the Public Finance Management Act
do not define the class of persons who may proffer a charge against the accounting
authority. They merely outline the procedure to be followed when a charge of
financial misconduct is made against the accounting authority. Once a charge of
financial misconduct is alleged, the First Respondent is compelled to investigate.
14. According to the First Respondent, the A pplicant sought a mandamus or
mandatory final interdict without addressing and satisfying any of its requirements
in his founding papers, but only belatedly and insidiously attempted to do so in
reply.
15. The First Respondent further submitted that the relevant provisions of the Public
Finance Management Act vest the power to institute the charge against the Board
on the Second Respondent and not the Applicant. Further, the Second Respondent
never refused to hold the Board of the Second Respondent accountable. The First
Respondent is continuing with her investigations , which she had decided to
Respondent is continuing with her investigations , which she had decided to
undertake. There was never a cause of action for this application.
7 (2021/39680) [2023] ZAGPJHC 103 (8 February 2023) para 26.
16. It was further submitted that t he statutory scheme of the Public Finance
Management Act does not entitle the Applicant to compel the First Respondent to
investigate. It was argued on behalf of the First Respondent that the Applicant
failed to establish a case that would have made it pos sible for it to be awarded
costs.
17. Furthermore, it was argued that the First Respondent did not act because of any
application brought by the Applicant. The court was informed that the First
Respondent had never been opposed to an investigation being conducted against
the Second Respondent. It is for these reasons that the First Respondent contends
that the Applicant is not entitled to costs in this application.
18. It was argued on behalf of the Applicant that the basis for the opposition to the
Applicant’s request for costs is baseless. I agree with this submission. The First
Respondent’s approach in opposing the Applicant’s argument on costs seeks to
invite this court to determine the merits and decide the Applicant’s entitlement to
bring this application and whether the requirements of an interdict have been
established. In my view, since the First Respondent has substantially complied with
the First Respondent’s main prayer in the notice of motion, there is no need to do
this.
19. It was correctly argued on behalf of the Applicant that, in light of the First
Respondent’s decision to investigate the Second Respondent after this application
had been brought, the Applicant has been substantially successful because that is
the order that the Applicant sought from the court.
20. In my view, there is no need for this court to pronounce itself on the merits. The
fact is that there was a reason for the Applicant to bring an application against both
Respondents. At the time the matter was issued in court and served on the parties,
a live dispute existed that required adjudication by the court.
21. It is a common cause that the First Respondent received a charge in February
21. It is a common cause that the First Respondent received a charge in February
2024 and did not take any action that could have prevented the Applicant from
instituting this Application. The First Respondent only reacted after the Application
was instituted, first with a letter from the State Attorney and secondly, a letter that
came directly from her. Both these letters were served on the Applicant after this
Application was lodged. For this reason, it is difficult not to conclude that the
Applicant’s application prompted the First Respondent’s decision to investigate the
Second Respondent.
22. Following the Applicant’s application, the First Respondent decided to investigate
the Second Respondent even before the court could hear the application . This
means that she conceded the merits of the Applicant’s case, making it unnecessary
for the Applicant to proceed with its case. If the First Respondent believed in the
facts that were advanced in opposition to the Applicant’s case and her
interpretation of the relevant provisions, she ought not to have acted in accordance
with what the Applicant sought in its notice of motion.
23. In relation to the First Respondent’s conduct, the facts of this case illustrate that
she had enough time to decide to investigate after receiving the charge from the
Applicant in February 2025. But she did not do so. Even after receiving the
application papers in May 2025, she could have initiated negotiations with the
Applicant to halt this litigation, but she failed to do so.
24. The First Respondent decided to inform the Applicant that she decided to
investigate a month after receiving the papers for this Application. This was also
an opportune time to engage the Applicant to prevent this litigation from
proceeding. However, she decided to oppose this application even though she had
already decided to investigate.
25. This led to the Applicant delivering its replying affidavit and application for leave to
submit further evidence, as well as the preparation of practice notices and heads
of argument. These are costs that ought to have been avoided. The conduct of the
First Respondent directly led to the Applicant incurring unnecessary costs in this
First Respondent directly led to the Applicant incurring unnecessary costs in this
litigation, which is regrettable. By opposing the application after having decided to
institute an investigation against the Second Respondent, the First Respondent
took an unnecessary step.
26. The facts of this case and the chronology of events that preceded the hearing of
the matter justify costs being aw arded against the First Respondent. In other
w ords, the Applicant is entitled to the costs of this application.
ORD ER
27. In the premises, I make the follow ing order:
27.1. Leave to file the letter of appointment of Nexis Forensic Services (Pty) is
granted.
27.2. The First Respondent is to pay the costs of the application on a party and
party basis, including counsel's fees on Scale 8.
--
C MARUMOAGAE
ACTING JUDGE OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION
PRETORIA
Counsel for the Applicant : Adv I V eerasamy
Instructed By Norton Rose Fulbright South Africa Inc.
Counsel for the First Respondent : A dv SB W Nhantsi
Instructed By : State Attorneys
Date of Hearing : 30 May 2025
Date of Judgment : 01 September 2025