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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NO: 2025-042346
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED.
DATE: 22 APRIL 2026
SIGNATURE
UNIQON DEVELOPERS (PTY) LTD Applicant
And
CITY OF TSHWANE METROPOLITAN MUNICIPALITY Respondent
______________________________________________________________________
J U D G M E N T
______________________________________________________________________
DE VILLIERS AJ
[1] At the hearing of this application, counsel for the applicant indicated that the
respondent had, shortly before the hearing, furnished a written outcome in respect
of the dispute that forms the subject matter of these proceedings. That letter was
handed up. Counsel for both parties accepted that the substantive relief sought in
the notice of motion had, in consequence, become moot, and that the only issue
remaining for determination was that of costs.
[2] The applicant persisted in seeking costs on the scale as between attorney and
client. Counsel appearing for the respondent , who was only briefed late in the
litigation, submitted that party -and-party costs would be sufficient. It was further
submitted on behalf of the respondent that the opposition had not been pursued
mala fide, but on the strength of legal advice previously obtained. Counsel also
submitted that the respondent was in financial difficulty and struggled to satisfy
costs orders, and that this militated against a punitive order.
[3] The award of costs is a matter for the court’s discretion, to be exercised judicially
upon consideration of all the relevant facts. Although costs ordinarily follow the
result, an award on the attorney-and-client scale is exceptional and is justified only
where the conduct of the losing party is such as to warrant the court’s disapproval
and where the successful party has been put to unnecessary trouble or expense.
[4] The broad background may be stated shortly. The applicant’s property
development required the consolidation of three erven. As part of that process, two
of the three existing water meters had to be removed. The documentary trail
placed before the court shows that the applicant’s representatives engaged the
respondent’s officials during 2023 and 2024 concerning the removal of those
meters and the correction of the billing on the relevant account to reflect such
removal.
[5] Of particular significance is the correspondence recording that the relevant meters
had been removed and collected during September 2023, and the later email from
Ms Angela Oliphant dated 16 July 2024, in which she stated in express terms that
the water device had been removed from the premises and had to be removed
from the account so that the account could be closed. Despite that, the municipal
account was not corrected, and a final demand was thereafter issued in respect of
account number 5[...].
[6] On 26 November 2024 the applicant lodged a formal dispute on the respondent’s
prescribed form in terms of section 95(f) read with section 102(2) of the Local
Government: Municipal Systems Act 32 of 2000. The form expressly requested
that the dispute be registered and that the decision be made known to the
applicant as soon as practicable. It also recorded that the City’s administration
would consider the dispute within 21 days from registration, subject to extension in
extenuating circumstances.
[7] Instead of deciding that dispute, the respondent caused summons to be issued on
12 December 2024 for payment of the disputed amount. Thereafter, despite further
correspondence from the applicant’s attorneys, including a letter of 28 February
2025 recording that no decision had been received and demanding a formal
response and reasons, the respondent still did not furnish a written outcome. The
present application was then launched on 28 March 2025.
[8] The respondent did not meet the application by promptly regularising its position. It
filed its answering affidavit late and without a satisfactory explanation covering the
full period of delay. In that affidavit it adopted a robust stance, contending that the
application was premature, that it was lis pendens, that the applicant had been
answered by the summons, and that the application should be dismissed with
costs.
[9] The position changed only with the letter dated 17 April 2026 that was handed up
at the hearing. In that letter the respondent recorded that maintenance records
confirmed that meter 0[...] had been removed on 12 September 2023 with a final
actual reading of 9949; that subsequent billings had been based on estimates
because of a delay in removing the meter from SAP; that all estimated charges
had now been reversed; that the account reflected a balance of only R936.89 as at
27 March 2026; and that the dispute was regarded as resolved and finalised,
subject to an internal appeal.
[10] That letter amounts, in substance, to a belated concession of the central premise
on which the applicant approached the court. The applicant contended throughout
that the meter had been removed, that the subsequent billing was wrong, and that
the respondent had failed to decide the formal dispute lodged in respect of that
billing. The respondent has now effectively accepted that the billing was indeed
based on estimates after the removal of the meter and that the estimated charges
had to be reversed.
[11] In those circumstances, the applicant must for costs purposes, be regarded as the
substantially successful party. The fact that the substantive relief is no longer
required because the respondent has at last provided the decision sought does not
alter the fact that the application achieved its essential objective.
[12] I do not accept that the respondent can avoid the ordinary consequences of its
conduct by relying on the proposition that it acted on bad legal advice. The
respondent is a metropolitan municipality exercising public powers and subject to
public-law obligations. It received a formal dispute on its own prescribed form. Its
own processes required a decision to be made and communicated. Instead, it
issued summons for the disputed amount, opposed this application on grounds
now shown to be untenable, and only much later furnished the written outcome
that should have been provided in the ordinary course.
[13] Nor do I accept that the respondent’s asserted financial difficulty is a proper basis
for withholding an otherwise appropriate costs order. A public body’s financial
position cannot justify shifting onto a successful litigant the burden of costs
unnecessarily incurred because the public body failed to discharge its obligations
timeously and properly. If anything, financial difficulty should induce greater care in
avoiding unnecessary litigation and wasted expenditure.
[14] The cumulative picture is therefore important. The respondent failed to decide the
dispute within the time recorded on its own form. It issued summons while that
dispute remained unresolved. It opposed mediation in the action on the footing that
there was no bona fide defence. It filed its answering affidavit late and persisted in
opposing the application until the morning of the hearing, when it finally delivered a
letter substantially conceding the applicant’s case. The applicant was thereby put
to unnecessary trouble and expense in order to secure a result which ought to
have been provided administratively and much earlier.
[15] In my view, party -and-party costs would not adequately mark the court’s
disapproval of that conduct. This is a case in which the respondent’s conduct,
viewed cumulatively and objectively, warrants censure. The applicant should not
be left with only a partial indemnity for costs reasonably incurred to compel the
respondent to do what it should have done without litigation. A punitive order on
the scale as between attorney and client is therefore justified.
[16] As a result, the following order is made:
1. The application is removed from the roll, save for the issue of costs.
2. The respondent is ordered to pay the applicant’s costs of the application on the
scale as between attorney and client.
__________________________
C DE VILLIERS
ACTING JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
Appearances:
Counsel for the Applicant : Adv HP Wessels
Instructed by: Van der Merwe & Associates
Counsel for the Respondent : Adv Z Marx
Instructed by: Ncube Inc Attorneys
Date heard: 20 April 2026
Date of Judgment: 22 April 2026