In the matter between
IN THE HIGH COURT OF SOUTH AFRICA
FREE STATE DIVISION, BLOEMFONTEIN
COPPER LAKE INVESTMENTS 226 CC
and
MASILONYANA LOCAL MUNICIPALITY
MUNICIPAL MANAGER:
MASILONYANA LOCAL MUNICIPALITY
Not Reportable
Case no: 5061/2024
APPLICANT
FIRST RESPONDENT
SECOND RESPONDENT
Neutral Citation: Copper Lake Investments 226 CC v Masilonyana Local Municipality and
Another (5061/2024) [2025] ZAFSHC 350 (6 November 2025)
Coram:
Heard:
Naidoo J
Heads of Argument on Costs filed for consideration in Chambers 27 February
2025
Delivered: This judgment was handed down electronically by circulation to the parties'
representatives by email. The date and time for hand-down of the judgment is deemed to
be 11 h00 on 6 November 2025.
Summary: Civil law - costs of application - opposed application - matter argued -
settlement on merits reached - costs disputed - what would be a fair costs order.
2
ORDER
Each party is ordered to pay its own costs
JUDGMENT
Naidoo J
[1] This matter has its genesis in an application that was brought before this court on
an urgent basis to interdict the first respondent from disconnecting the electricity supply to
the applicant's property. The court granted an interim order on 5 September 2024 and
issued a rule nisi, which was returnable on 17 October 2024. The respondents filed a
notice opposing the application and filed their answering affidavit on 16 October 2024,
which led to the rule nisi being extended and the matter being postponed to 28 November
2024. A day before the postponed return date, the respondents brought an urgent rule 30
application. I will deal with the reason for the rule 30 application later. On 28 November
2024, both the main application and the rule 30 application were postponed to 30 January
2025. The matter was heard on that day and judgment was reserved. However, the matter
became settled thereafter and on 31 January 2025 and a draft order was presented to
court, which was granted. In terms of the order, the first respondent was prohibited from
disconnecting or disrupting the electricity supply at the premises of the applicant, Copper
Lake Investments 226 CC, pending the resolution of the dispute relating to the charges for
electricity consumption in respect of the accounts held by the applicant with the first
respondent. The court order also directed the steps to be taken by the parties in order to
resolve the disputes between them. The question of costs stood over for later
determination. The parties were required to file heads of argument in respect of costs, so
that the matter may be considered in chambers, which they did.
[2] There is a history of litigation between these parties. In order to understand the
3
arguments in relation to costs, it is perhaps useful to outline, briefly, the relevant
background in this matter. The first respondent supplies electricity to the premises owned
by the applicant. It appears that there are several businesses being operated from those
premises, which is served by two electricity meters. The charges arising from the
recordings of these meters resulted in a long standing dispute between the parties
regarding the correctness of the electricity account for the applicant's premises, the details
of which are not relevant for present purposes. For a number of years, after the applicant
declared a dispute in relation to the municipal electricity account, there was
correspondence and other engagements between the parties, seemingly without resolution
of the problem.
[3] Towards the end of April 2024, the first respondent disconnected the electricity
supply to the premises, which led to an urgent application being brought by the applicant in
May 2024 under case number 2575/2024, for restoration of the electricity supply and
prohibiting the respondent from disrupting or disconnecting the electricity supply to the
applicant's premises until the dispute in relation to the electricity account had been
resolved. An interim order was granted on 15 May 2024, returnable on 20 June 2024. On
the latter date the rule nisi was confirmed (the first order). The interactions between the
parties continued thereafter with a view to reaching agreement on the outstanding amount
payable by the applicant, but this did not materialise. The respondent, issued a demand for
payment from the applicant of an amount of almost R3 million and notified the applicant
that if payment was not made, the electricity to the premises would be disconnected. This
indeed happened on 2 September 2024, when the employees of the respondent
disconnected the electricity to the applicant's premises, resulting in the current application
disconnected the electricity to the applicant's premises, resulting in the current application
being brought before this court on an urgent basis on 5 September 2024, as I detailed
earlier.
[4] After the respondents filed their answering affidavit, the applicant served a notice in
terms of Uniform Rule 7 on 22 October 2024, disputing the authority of Amos Mokoae (Mr
Mokoae) to represent the respondents and called for proof of his authority to do so. The
respondents filed, on 31 October 2024 and in response thereto, an extract of the first
respondent's delegation policy in terms of which the Chief Financial Officer had the
authority, inter alia, to commence legal process on behalf of the council (of the first
respondent), including the authority to sign all necessary documents in this regard. The
4
respondents also attached a letter appointing Mr Mokoae permanently as the Chief
Financial Officer (CFO) of the first respondent with effect from 3 January 2024. On 18
November 2024, the applicant filed an affidavit, responding to the respondents' response
to the applicant's rule 7 notice, in which it disputed the validity of Mr Mokoae's appointment
as CFO of the first respondent. In support of this contention, it attached to its affidavit a
copy of an arbitration award, made on 5 January 2023, in an arbitration between Mr
Mokoae and the Mafube Local Municipality in which Mr Mokoae claimed to have been
unfairly dismissed by the latter. The arbitrator ruled that the dismissal was substantively
fair and dismissed Mr Mokoae's claim of unfair dismissal.
[5] The applicant erroneously alleged that the first respondent had dismissed Mr
Mokoae. The applicant also attached an undated and unsigned letter, ostensibly written by
the Member of the Executive Council, Department of Cooperative Governance Traditional
Affairs and Human Settlements (MEC: COGTA), in which the latter indicated that the
appointment of Mr Mokoae as CFO of the first respondent was invalid on account of
proper procedures in making the appointment not having been followed and on account of
Mr Mokoae's dismissal from the Mafube Local Municipality, making him ineligible for
appointment for ten years. This affidavit precipitated a notice in terms of Uniform Rule
30(2)(b) on 19 November 2024, where the respondents notified the applicant that its
affidavit constituted an irregular step, on the basis that it had provided the proof of Mr
Mokoae's authority called for in the applicant's rule 7 notice. Further, that neither rule 7 nor
any other rule provided for the filing of an affidavit as the applicant had done. The
respondents also alleged that the applicant's affidavit constituted a further affidavit which,
in terms of Uniform Rule 6 may not be filed without the leave of the court. The applicant
in terms of Uniform Rule 6 may not be filed without the leave of the court. The applicant
had not obtained such leave. The respondents called upon the applicant to remove the
cause of the respondents' complaint by 25 November 2024. The applicant clearly failed to
respond to the notice which resulted in the respondents, on 27 November 2024, bringing
an application, on an urgent basis, seeking an order declaring the applicant's affidavit in
response to the respondents' rule 7 response an irregular step and setting it aside. This,
as I indicated earlier, was a day before the 'main' application by the applicant was due to
be heard, resulting in the application and the rule 30 application being postponed for
hearing on 30 January 2025.
5
[6] Both parties filed heads of argument in respect of the issue of costs. I will deal
briefly
with each argument. The applicant stated, in essence, that in the circumstances of the
matter, which I outlined earlier, it became necessary for the applicant to approach court.
The
respondent's conduct was unlawful and was a violation of the first order. If the applicant
had
not approached the court on 5 September 2024, the electricity to its premises would not
have been restored. The applicant argued further that the respondents' late opposition of
the application, for the purposes of the return date, indicates that had the applicant not
persisted with this application, the respondent would, in all likelihood, have disconnected
the electricity again. The respondents seemed set on disconnecting the electricity because
of their claim that the account was in arrears. This, argued the applicant, despite the
respondent being aware that the applicant disputed the respondents' assertion that the
dispute relating to electricity consumption had been resolved. The subsequent settlement
and order by the court on 31 January 2025 is an acknowledgment by the respondents that
the dispute had not been resolved.
[7] The applicant asserted that the interdict contained in paragraph 1 of the draft order
aligns materially with the relief sought by it in the main application, justifying its having to
approach the court. The respondents opposed the matter on overly technical grounds. In
addition, so the applicant argues, the respondent's argument that the applicant should
have pursued contempt proceedings not only lacks merit but is disingenuous in view of its
repeated assertion that the dispute between the parties, in relation to electricity
consumption charges had been resolved. With regard to the respondents' rule 30
application the applicant asserted that it lacked merit and was destined to fail, as the
respondents neither alleged nor made out a case to show that they would have suffered
respondents neither alleged nor made out a case to show that they would have suffered
any prejudice if the affidavit were to serve before the court. The rule 30 application
precipitated the filing of the applicant's conditional counter-application, which it did 'out of
an abundance of caution'. The respondent unreasonably opposed the conditional
counterclaim, even though the applicant sought to cure their complaint that the leave of the
court had not been obtained for the filing of the affidavit. The effect of the respondents'
6
actions was to escalate legal costs. The respondents' conduct therefore justifies a punitive
costs order being granted against them.
[8] The respondents countered the applicant's assertions that it is entitled to punitive
costs as it was successful in the interdict application and that the respondents acted in
contravention of an existing court order when it disconnected the electricity in September
2024. They persisted with their contention that the applicant should have resorted to
contempt of court proceedings, and asserted that this is confirmed by the applicant's
version that it was already granted a court order which is binding. It further asserted that
when it accused the applicant of abusing the process of court by bringing the current
application, the latter challenged the authority of the deponent to the respondents'
answering affidavit by issuing a rule 7 notice. The respondents argued further that the
applicant was not permitted to file the affidavit responding to its response to the applicant's
rule 7 notice, without having obtained the leave of the court to do so, as required by
Uniform Rule 6(5)(e). This resulted in the issuing of the notice and application in terms of
Rule 30.
[9] The respondents further contended that they did not disconnect the electricity, in
contravention of the first order, as a result of the account being in arrears. They did so due
to illegal (electrical) connections which they discovered at the applicant's premises. The
applicant was not successful to the extent that it claims, and its success does not merit a
punitive costs order, or a costs order against the respondent. The respondents reiterated
that the applicant abused the process of court by requesting interdictory relief when it was
already armed with the first order granted in June 2024. They contended further that the
filing of the further affidavit in response to proof of Mokoae's authority, was without the
filing of the further affidavit in response to proof of Mokoae's authority, was without the
leave of the court and very shortly before the hearing of the matter on 28 November 2024,
causing the postponement of the proceedings on that day. The respondents argued that
the applicant should bear the costs of the postponement on 28 November 2024. With
regard to the costs of the application and the proceedings on 31 January 2025, the
respondents submitted that each party should pay its own costs.
[11] The established rule of practice with regard to costs, and which is common cause
between the parties, is that costs are generally awarded to the successful party. The
7
purpose of a costs order is to ensure that the successful party is not unduly out of pocket,
where he was obliged to approach the court for the relief he sought and ultimately
obtained. The Constitutional Court (CC) summarised the principles relating to costs in the
much-quoted case of Ferreira v Levin NO and Others; Vryenhoek and Others v Powell, 1
where the court, in extracting the principles from various cases, said at para 3:
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 parties, 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. They offer a useful point of departure. If the need
arises the rules may have to be substantially adapted; this should however be done on a case by
case basis. It is unnecessary, if not impossible, at this stage to attempt to formulate comprehensive
rules regarding costs in constitutional litigation.'
[12] The determination of an appropriate costs order is in the discretion of the court,
[12] The determination of an appropriate costs order is in the discretion of the court,
which discretion is usually informed by a number of factors in order that such discretion be
exercised judiciously. Erasmus,2 states it succinctly as follows:
'In leaving the court a discretion, the law contemplates that it should take into consideration the
circumstances of each case, carefully weighing the issues in the case, the conduct of the parties
and any other circumstance which may have a bearing on the issue of costs and then make such
order as to costs as would be fair and just between the parties'.
[13] It is also well established that the general rule that costs are awarded to the
successful party may also be applied to the case where the parties have reached a
settlement on the merits but costs remain in dispute, as is the case in the present matter.
1 Ferreira v Levin NO and Others; Vryenhoek and Others v Powell NO and Others [1995] ZACC 13; 1996(2)
SA 621 (CC).
2 Van Loggerenberg et al Erasmus: Superior Court Practice 3 ed vol 1 (Original Service Issue, 2023) at D5-6/7.
8
The settlement in this matter came a day after the matter was fully argued before this
Court. It is not in dispute that there was a plethora of correspondence between the parties,
mostly from the applicant to the first respondent, with regard to the dispute raised by the
• applicant, who alleges that the first respondent simply ignored its various attempts to
resolve the matter. I do not propose to deal with the merits, except if it is relevant to the
determination of costs. However, the ancillary issues of the rule 7 notice and responses,
as well as the rule 30 application require some mention. Rule 7(1) provides:
'Subject to the provisions of subrules (2) and (3) a power of attorney to act need not be filed, but
the authority of anyone acting on behalf of a party may, within 10 days after it has come to the
notice of a party that such person is so acting, or with the leave of the court on good cause shown
at any time before judgment, be disputed, whereafter such person may no longer act unless he
satisfied the court that he is authorised so to act, and to enable him to do so the court may
postpone the hearing of the action or application.'
[14] The respondents responded by furnishing the first respondent's Delegation Policy
which indicates that the CFO has the power to represent the first respondent in legal
proceedings, established the authority of the person holding that position. As I indicated
earlier, the respondents also attached an appointment letter, confirming that Mr Mokoae
was permanently appointed as the CFO. This, in my view, sufficed to satisfy the
requirements of rule 7. While the rule does not provide for any procedure or method to
challenge the proof so provided, my view is that the rule 7 notice is a matter ancillary to the
main application and it may well be debatable whether rule 6(5) applies to rule 7. However,
the filing of the further affidavit by the applicant could not, in my view, have been of value
the filing of the further affidavit by the applicant could not, in my view, have been of value
in advancing the matter, because s 7(1) merely requires that the court must be satisfied
that authority existed at the time when proof of it is proffered. The rule does not, in my
view, suggest that the court is required to investigate the validity of past acts in the context
of the authority to act. The arbitration proceedings and the award made therein were not a
matter that this court could permissibly consider, much le_ss the appointment of Mr Mokoae.
The applicant ought to have known better than to put before this Court an undated and
unsigned letter indicating that Mr Mokoae's appointment was irregular and invalid.
[15] The applicant did not validly or permissibly challenge the appointment nor make out
any case for this Court to investigate the validity of Mr Mokoae's appointment. In my view,
the only purpose that affidavit served was to muddy the waters, and that I need pay no
9
heed to it. The appointment of Mr Mokoae is an administrative act which stands until it is
set aside. This court cannot in any way consider the validity or otherwise of such
appointment without the proper procedures being followed to place that matter before it.
The filing of the rule 30(2) notice by the respondents ought to have evoked some response
from the applicant, indicating at least what outcome it was hoping to achieve by the
introduction of the evidence by way of that affidavit. The respondents were, therefore,
compelled to move the application in terms of rule 30.
[16] To my mind, the parties in this matter allowed the acrimony between them to cloud
their common sense, which ought to have prevailed in attempting a resolution of such a
long-standing dispute. The respondents' attitude was somewhat high-handed in not
responding to the applicant's correspondence and disconnecting the electricity supply.
However, the applicant appears not to be blameless either, if the respondents' version is to
be taken into account, that there were illegal electrical connections at the applicant's
premises. The taking of technical points, filing of process unnecessarily and failing to
engage meaningfully with each other in order to resolve this matter have been considered.
Both parties seem to have regained their common sense only after the matter was fully
argued, which, at that stage, would have caused the costs in this matter to have escalated
even further. The settlement they reached after the matter was argued ought to have
occurred much earlier, in order to contain costs.
[17] In exercising the discretion with regard to costs, I have taken account of the history
in this matter and the events that led to this matter coming before me. The interests of
justice and of fairness to both parties have also been factored into those considerations. In
my view, a fair order would be to direct each party to pay its own costs.
[18] In the circumstances, I make the following order:
[18] In the circumstances, I make the following order:
Each party is ordered to pay its own costs
10
NAIDOOJ
JUDGE OF THE HIGH COURT
Appearances
For the Applicant:
'
Instructed by:
For the Respondents:
Instructed by:
Adv Van der Merwe
Symington De Kok Attorneys
169B Nelson Mandela Drive
Westdene
Bloemfontein
Ref: FKM0255
Adv Rautenbach
Phatshoane Henney Attorneys
35 Markgraaff Street
Bloemfontein
Ref: 273851/MLO/kc
11