REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
Case Number: 42996/2020
In the matter between:
ASSUMPTION CONVENT SCHOOL 1st Applicant
THE MISSIONARY SISTERS
OF THE ASSUMPTION 2nd Applicant
and
MR PLASTIC CC 1st Respondent
MR PLASTIC PROPERTIES CC 2nd Respondent
EKURHULENI MUNICIPALITY 3rd Respondent
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: NO
28/05/2026
_____________ _______________
SIGNATURE DATE:
2
________________________________________________________________
JUDGMENT
________________________________________________________________
Mfenyana J:
Introduction
[1] This application concerns the determination of costs arising from various
applications brought by the applicants against the respondents.
[2] It is common cause that the applications have become moot.
Notwithstanding this, the first and second applicants (“the applicants / the
School”) contend that they are entitled to costs because the applications
were necessitated by the conduct of the first and second respondents (“Mr
Plastic”). They further contend that, as they operate a small private school,
they lacked the funds to litigate and that the costs of litigation caused them
significant prejudice.
[3] The first and second respondents ( “Mr Plastic”), on the other hand, aver
that the applicants are not entitled to costs and that Mr Plastic is instead
entitled to the costs of all the applications, including th is application, as
there was no basis for the School to institute all the proceedings that it did.
[4] The third respondent’s (“ the Municipality”) position is that the School has
not made out a case for an award of costs against the Municipality in all
matters involving the School , and that each party should bear its own
costs.
3
Factual matrix
[5] The applicants operate a private school within the jurisdiction of the
Municipality. The school is situated on property adjoining the second
respondent's property, where Mr Plastic conducts its business.
[6] On 10 December 2020, the School filed an application to interdict Mr
Plastic from conducting unlawful manufacturing activities at the
respondents’ premises and from using the premises in a manner contrary
to the zoning determined by the Municipality. The School also sought an
order directing the respondents to enforce the zoning of the premises and
prevent any use contrary to it. (“the main application”)
[7] It further sought costs against all the respondents, jointly and severally, on
an attorney-and-client scale.
[8] All three respondents opposed the application.
[9] Following the main application, the School brought further applications,
which I address only insofar as they are relevant to costs.
Main application
[10] The School averred that the main application was precipitated by Mr
Plastic’s illegal activities on the premises, contrary to its zoning. It further
contends that be fore resorting to litigation, it sent numerous letters to the
respondents, invited them to a roundtable meeting, and made several other
attempts to avoid litigation. These efforts commenced in July 2016 and
continued into the following year, including requests that Mr Plastic cease
manufacturing illegal products on the premises, which Mr Plastic ignored.
4
[11] The School further alleged that chemicals were being emitted into the
atmosphere and that odours from Mr Plastic’s premises were so severe that
learners and teachers at times struggled to breathe and had to evacuate
the sports grounds. They complained that odours and noise pollution
emanating from the premises were harmful to the health of learners,
teachers, and workers at the school, as well as people at a nearby church
and other businesses in the area.
[12] Mr Plastic denied that any manufacturing activities were taking place on the
premises. However, in November 2017, the second respondent applied for
the rezoning of the premises from Business 2 to Industrial 2. The School
objected to the application , inter alia, on the basis that Mr Plastic had not
been transparent in its application, as it had been manufacturing products
on the premises for years, and that its activities required Industrial 2 zoning.
[13] The application was served on the respondents on 27 January 2021. On 10
and 17 February 2021, Mr Plastic and the Municipality, respectively,
opposed the application. By agreement between the parties, the time for the
filing of the answering affidavit s was extended to 8 March 202 1 for Mr
Plastic and 19 March 2021 for the Municipality.
[14] On 10 March 2021, Mr Plastic had not delivered its answering affidavit. It
instead delivered an application seeking condonation for the late filing
thereof, coupled with a request for a further extension until 20 April 2021.
[15] On 26 March 2021, the Municipality filed a similar application, seeking an
extension until 25 April 2021. It is common cause that neither application
was ever set down and, as a result, neither was heard.
[16] The answering affidavits were ultimately delivered on 28 April 2021 for the
Municipality and on 5 May 2021 for Mr Plastic. Mr Plastic’s answering
5
affidavit also included a further application for condonation for the late filing
of that affidavit.
[17] In its answering affidavit, Mr Plastic contend s that it had been granted
special consent use by the Municipality to use the premises for ‘light
industry’ activities. It attached a copy of an approval, ostensibly granted by
the Municipality on 24 July 2007, together with a zoning certificate dated 2
March 2021. Mr Plastic further avers that the zoning certificate relied on by
the School is outdated and inoperative. It, however, denies that any
manufacturing was taking place on the premises.
[18] By contrast, the Municipality’s answer is that it was not aware that in 2007
it had granted Mr Plastic special consent use to conduct light industry
activities, and only learnt of this when Mr Plastic filed its application for
condonation on 10 March 2021, to which it attached a zoning certificate and
approval for special consent use.
[19] The Municipality also noted that Mr Plastic appears to have been unaware
that it had applied for and had been granted temporary special consent to
conduct light industry activities , given its 2017 application to rezone the
premises from Business 2 to Industrial 2. The Municipality , therefore,
questions how Mr Plastic discovered in March 2021 that the special consent
use had been approved.
[20] Notably, the Municipality asserted that it had no record of Mr Plastic having
applied for special consent use , and had initiated an investigation into the
authenticity of the approval and zoning certificate provided by Mr Plastic.
However, the investigation was not finalised as the area manager who had
purportedly approved the application had left the Municipality’s employ and
could not be reached.
6
[21] Despite these queries and the Municipality’s pending investigation, in the
same answering affidavit, it relied on the documents provided by Mr Plastic
to argue that there was no basis for the interdict sought by the School and
no indication that Mr Plastic was using the premises contrary to its zoning.
It further averred that a report from its environmental unit, followin g a site
inspection on 28 February 2021, also found that there were no such
breaches.
Application for a stay of the main application, and Review application
[22] On 24 June 2021, the School addressed a letter to the respondents seeking
their consent to put the main application in abeyance as it intended to file a
review application. In the letter, the School stated that the review application
was necessitated by the Municipality’s acceptance of the special consent
use alleged by Mr Plastic.
[23] Mr Plastic did not consent to the stay of the main application as it considered
the main application, and consequently the intended review, to be without
merit. It therefore requested the School to withdraw the application and
tender the wasted costs.
[24] The Municipality neither refused nor granted consent to the School.
[25] On 12 August 2021, the School delivered an application for a stay of the
main application pending the finalisation of a review application it intended
to institute, seeking to set aside the Municipality’s decision to grant special
consent use to Mr Plastic, alternatively, to amend its records to reflect that
special consent.
[26] The School contended that, given that administrative decisions of the
Municipality are valid until set aside, it would be futile to file a reply and
7
proceed with the main application until there was certainty regarding the
zoning of the premises. They further contended that the main application
would only be ripe for hearing once a review court had pronounced on the
issue. If the review application were to be unsuccessful, the main application
would be doomed. If it were to succeed, the applicants would still be
required to file a supplementary affidavit, dealing with the outcome of the
review.
[27] It essentially averred that the special consent use and the related rezoning
certificate were forgeries, rendering any decision to grant them procedurally
unfair and reviewable. In the alternative, it contended that the stipulated
conditions had not been met, that the special consent use granted in 2007
had lapsed years earlier, and that the Municipality’s reliance thereon was
therefore reviewable.
[28] The remainder of the School’s founding affidavit essentially deals with the
grounds for review. It is averred that, despite repeated correspondence
from the School, Mr Plastic made no mention of any special consent use
until it filed its answering affidavit. The School thus contends that Mr Plastic
could not have applied for rezoning in 2017 while k nowing that it had an
unresolved special consent use application and failed to enquire about its
outcome. Accordingly, the School alleges that the purported 2007 approval
is a forgery intended to frustrate the main application and that it caused the
Municipality to amend its records, leading to the zoning certificate reflecting
special consent use for ‘light industry’ activities.
[29] The stay and review applications were opposed by Mr Plastic. The
Municipality did not oppose the stay and filed a ‘notice to abide’ in the review
application.
[30] The essence of the opposition by Mr Plastic is that a stay of proceedings
should be granted sparingly and in exceptional circumstance s,
8
counterbalanced with a respondent’s right to achieve litigation finality.
Importantly, Mr Plastic contended that there was no point in staying an
application which could not retrospectively be revived.
[31] It is common cause that on 26 April 2023, an order was granted by
agreement between the parties, for a stay of the main application pending
finalisation of the review application . Costs were reserved. The applicants
contend that these should be awarded to them.
[32] The review application was issued on 13 August 2021.
[33] On 24 March 2022, Mr Plastic filed their answering affidavit in the review
application, together with a counter -application. In the counterapplication,
Mr Plastic sought an order compelling the Municipality to convert the zoning
of the premises on the basis that they had been incorrectly commuted. This
was denied by the Municipality, wh ich maintained that the special consent
use was fraudulently obtained.
[34] The rezoning application was approved by the Municipality on 27 June
2023, subject to certain stipulated conditions. The School lodged an appeal
against that decision , which was dismissed by the Municipality, subject to
further conditions.
[35] The applicants contend that they elected not to review the decision of the
Municipality, as Mr Plastic subsequently implemented various measures to
lower the noise and redirect gas emissions from the applicants’ property to
the southern side of the second respondent’s property. It is on this basis
that the parties agree that the main application and the review have been
rendered academic and overtaken by events.
[36] The ‘Mr Plastic’ respondents aver that they had already warned the School
in 2022 that approval of the rezoning application would render the
9
applications moot and that none of the applications was ripe for hearing. As
matters stand, they contend that none of the applications has any practical
effect for any of the parties and that the interests of justice do not require
the matter to be heard.
[37] Because the determination of costs would require the court to engage with
the merits of each application, together with the grounds of opposition, Mr
Plastic argues that this would unnecessarily burden this court in
circumstances where the applications are academic.
[38] Essentially, Mr Plastic argues that although courts retain a discretion to
determine a matter despite its mootness, where the interests of justice so
require, they should not hear cases that have no practical effect for any of
the parties and present no live controversy. It further argues that the School
has failed to demonstrate why the matter should be heard.
[39] Regarding the merits of the applications, Mr Plastic contends that the main
application was based on an outdated zoning certificate dated 4 September
2016 and alleged contraventions thereof, which had no merit as it had been
granted special consent use by the Municipality. It further contends that it
had to incur expenses in appointing experts to rebut the applicants’
contentions relating to air and noise pollution. These reports show that
operations on the premises were within acceptable norms. The main
application was therefore bound to fail, Mr Plastic further avers.
[40] Regarding the stay application, Mr Plastic avers that this application was
inconsequential as the School conceded that the court would largely be
interested in the results of the review application.
[41] Consistent with its position in the main application, Mr Plastic contends that
the review application was founded on an incorrect zoning certificate and
10
on historic zoning rights arising under the Germiston Town Planning
Scheme. On this basis as well, the review application was doomed to fail.
[42] Mr Plastic further avers that the issues of air and noise pollution were duly
considered by the Municipality’s Tribunal and found to be without merit. He
further contends that there are disputes of fact arising from this issue which
are incapable of resolution in motion proceedings. Mr Plastic thus seeks a
punitive costs order on the attorney-client scale against the School, on the
basis that the applications were unnecessary and that the School’s conduct
was unreasonable and obtuse.
[43] The Municipality argues that the discretion of the court to award costs is not
engaged, as there is no successful party in these proceedings. It further
argues that although Mr Plastic was in breach of the town planning bylaws
after the School filed a complaint in 2017, Mr Plastic subsequently rectified
the situation by applying for rezoning. The Municipality decided that it would
be unreasonable to take action against Mr Plastic while the application was
pending.
[44] According to the Municipality, the School should have waited for the
outcome of the rezoning application instead of filing the main application. It
is worth noting that the rezoning application was finalised in 2023. The
School’s appeal was dismissed.
[45] Notably, in its heads of argument, the Municipality submits that the special
consent use only surfaced when Mr Plastic filed its application for extension
of time. It further states that “this is a matter that is receiving attention from
the City”. This shows that the Municipality did not just sit and do nothing,
further goes the argument.
[46] In the same breath, the Municipality submits that the special consent use
that Mr Plastic received from the Municipality came as a surprise to both the
11
School and the Municipality. It further concedes that the 2016 zoning
certificate relied on by the School in the main application was obtained from
the Municipality.
[47] It is common cause that the Municipality did not oppose the stay application
and that it filed a notice to abide by the decision of the court in the review
application. In its response to the request for the record, the Municipality
stated that there was no record of an application by Mr Plastic and that the
special consent use number allocated in the approval letter relates to a
different property and not the premises for which it was issued. There were
also inconsistencies in the purported approval letter, and this forms part of
the reasons why the Municipality concluded that the approval letter was not
issued by the Municipality . An investigation conducted by the Munic ipality
also revealed that Mr Plastic never applied for special consent use and that
the special consent use was obtained fraudulently. On this basis, it elected
not to oppose the review application, and to demonstrate its bona fides,
opposed Mr Plastic’s counterapplication.
[48] The Municipality denies that it ignored the School’s efforts to prevent
litigation, stating that the 2016 complaint was investigated and the School
was informed of the outcome. When the School filed a second complaint in
August 2017, it assured the School that it would take action against Mr
Plastic should they be found to have contravened the town planning bylaws.
However, in November 2017, Mr Plastic filed a rezoning application, and the
Municipality stayed the decision to take action against Mr Plastic, pending
the outcome of the application.
[49] The Municipality avers that it acted reasonably and rationally in the
circumstances, as the special consent use purportedly issued to Mr Plastic
remained in force until set aside.
12
[50] The Municipality thus submits that it does not seek costs against the School
and that it would be just and equitable for each party to pay its own costs ,
and that in the dispute between the Municipality and Mr Plastic (the
counterapplication), each party should similarly pay its own costs.
Discussion
[51] The purpose of a costs order is to indemnify the successful party for costs
incurred in instituting or defending an action. The court has a discretion in
awarding costs, which must be exercised judicially, with due regard to
fairness, reasonableness, the c ircumstances relevant to costs, and the
parties’ conduct. A successful party is generally entitled to its costs, and
success is determined by substance rather than form.
[52] Where the conduct of a litigant is found to be vexatious, in bad faith and
amounts to an abuse of the process of the court, punitive costs serve to
punish such conduct and show the court’s displeasure with that litigant. The
rationale for this scale of costs is that the successful party should not be out
of pocket for defending its rights.
[53] Where a matter has become moot, courts will generally refrain from
determining the substantive issues, including costs. However, if the
interests of justice so require, a court may still determine costs. In doing so,
it will consider the reasons the matter became moot and who was
responsible, whether the application was reasonable when instituted, the
parties’ overall conduct, and broader considerations of fairness and
efficiency. Notwithstanding, costs incurred before the matter became moot
remain recoverable.
[54] The applicants aver that Mr Plastic’s conduct, including its opposition to the
applications, was spurious and duplicitous, necessitating a punitive costs
order. They further aver that the conduct of Mr Plastic and the Municipality
13
rendered the main, stay, and review applications moot, and that the litigation
could have been avoided had Mr Plastic engaged with the School from the
outset instead of persisting in its ‘illegal conduct’, and had the Municipality
complied with its obligations.
[55] They add that had the Municipality not elected to rely on the fraudulent
special consent use document, neither the review application nor the stay
application would have been necessary , and that this conduct precipitated
each of the applications they instituted. Similarly, the costs incurred could
have been avoided. They further argue that, although Mr Plastic contends
that the School relied on an outdated zoning certificate, Mr Plastic chose to
ignore all correspondence and the School’s attempts to engage and avoid
litigation, despite its assertion that they were in possession of an updated
zoning certificate. The Municipality adopted a similar stance.
[56] Mr Plastic, on the other hand, while conceding that all the applications have
become moot, argues that the reasons why the applications became moot
are:
56.1 that Mr Plastic had already lodged a rezoning application before the
School issued the main application. The rezoning was approved on
23 June 2023.
56.2 that the School’s internal appeal against the rezoning was
dismissed.
56.3 that, in light of the approved rezoning, the relief sought in all the
applications cannot be granted, as doing so would be academic.
[57] This is also the argument advanced by the Municipality, that there was no
point in instituting the main application when the rezoning application was
already pending.
14
Main application
[58] Although the application has become moot due to the granting of rezoning,
the applicant was justified in approaching the court when the main
application was instituted. Mr Plastic was conducting activities in
contravention of the applicable town planning bylaws, a fact confirmed by
the Municipality.
[59] It does not matter, in my view, that when the main application was instituted,
Mr Plastic had already filed its rezoning application to rezone the premises
from Business to Industrial. At that point, t he applicant had made several
attempts to resolve the dispute without litigation. In the circumstances,
fairness dictates that Mr Plastic pays the applicant’s costs.
[60] In Biowatch1, the Constitutional Court noted that costs are not determined
mechanically: courts must consider fairness, the conduct of the parties and
the broader interests of justice , including conduct before and during the
proceedings. Although Biowatch concerned constitutional litigation and the
underlying principles relating to cost orders in such circumstances , its
principles are equally relevant in the present case, particularly in view of the
fact that it took the School several years to approach the court after
numerous failed attempts to resolve the issue.
[61] Despite finding, in response to the School’s 2017 complaint, that Mr Plastic
had contravened the bylaws, the Municipality took no action against Mr
Plastic. When it elected to oppose the application, it had no knowledge of
the existence of the special consent use, and the rezoning certificate
produced by Mr Plastic. It stated as much in its answering affidavit, stating
further that it had commenced with investigations. To date, the Municipality
maintains that the documents relied on by Mr Plastic did not o riginate from
1 Biowatch Trust v Registrar Genetic Resources [2009] ZACC 14; 2009 (6) SA 232 (CC).
15
the Municipality and that they were fraudulently obtained , and this
conclusion emanates from the investigation conducted.
[62] Armed with such findings, it was incumbent upon the Municipality to take
the necessary steps to have the purported special consent use set aside.
This would obviate any confusion and the litigation which later ensued. The
Municipality failed to do this, arguably, because Mr Plastic subsequently
filed a rezoning application to remedy the situation. This does not help the
situation either for Mr Plastic or the Municipality.
[63] The question is, why was it necessary for Mr Plastic to apply for rezoning in
2017 when it contends that it had a special consent use granted by the
Municipality in 2007 and a rezoning certificate which permitted it to conduct
industrial activities on the premises? Similarly, why was it necessary for the
Municipality to even consider a second rezoning application when one was
already in existence? Why was it necessary for the Municipality to conduct
an investigation in the first place, when all it needed to do was simply
produce the special consent?
[64] As the lawful administrative authority, the Municipality is empowered to
determine the zoning status or rezoning of the property. If it had granted the
special consent and issued the rezoning certificate, it ought to be aware of
that fact. To this day, it maintains that it did not do so, yet it has taken no
further action in relation to the continued existence of the alleged special
consent. Its failure to deal with the School’s complaint decisively and
timeously amounts to a dereliction of its responsibilities.
[65] In my view, the 2017 rezoning application amounts to a concession by Mr
Plastic that the premises were not zoned for the purpose they were being
used for and that it required Industrial 2 zoning in order to conduct industrial
activities.
16
[66] It is also disconcerting that, although Mr Plastic stated in its correspondence
to the School that the proceedings instituted by the School should not
proceed as it was awaiting the outcome of its 2017 rezoning application, this
position is not reflected in its answering affidavit. Instead, the reason
advanced for opposing the main application is that Mr Plastic was
authorised to conduct industrial activities on the premises by virtue of the
2007 special consent use and the March 2021 zoning certificate. However,
Mr Plastic cannot both approbate and reprobate.
[67] The Municipality’s reliance on Oudekraal2 and Kirland3 does not assist the
Municipality for the following reasons:
a. An organ of state cannot simply ignore its own decision upon realising
that a mistake was made or that it was taken unlawfully. It should apply
to a court to have the decision set aside.
b. In this case, this is precisely what the Municipality has done.
c. The decision taken by the erstwhile official of the Municipality remains in
existence.
[68] The conduct of both the Municipality and Mr Plastic renders it improbable
that Mr Plastic would choose not to rely on the special consent it alleges
was granted by the Municipality and instead go to the trouble of applying for
rezoning when, on its own version, the property had already been rezoned
for that very purpose. Even more perplexing is that the Municipality would
simply disregard its own decision and proceed to process a further rezoning
application in respect of the same property without setting aside the initial
2 Oudekraal Estates v City of Cape Town and others [2004] ZASCA 48; [2004] 3 All SA 1 (SCA);
2004 (6) SA 222 (SCA).
3 MEC for Health, Eastern Cape v Kirland Investments (Pty) Ltd [2014] ZACC 6; 2014 (5) BCLR
547 (CC); 2014 (3) SA 481 (CC).
17
decision. By its own account, that decision, however it was made, remains
in effect.
[69] Although the substantive disputes between the parties have become moot,
considerations of justice and fairness dictate that both the Municipality and
Mr Plastic should bear the costs of the main application.
Stay application
[70] The stay application was issued on 12 August 2021, following the School’s
notices in term s of Rule 35(12) to produce specified documents. The
Municipality delivered its response to the notice on 17 June 2021. The
School contends that, upon realising that the Municipality had decided to
accept the purported approval of the special consent use, it was compelled
to issue the stay application while proceeding with the review proceedings.
[71] The Municipality did not oppose the application. Mr Plastic initially opposed
the application but withdrew its opposition on the day of the hearing.
[72] An order was issued by agreement between the parties, granting the stay
and reserving the costs.
[73] The School avers that the belated withdrawal by Mr Plastic was occasioned
by the Municipality’s confirmation in a letter dated 11 October 2021, stating
that the document s relied on by Mr Plastic were not issued by the
Municipality. Until then, Mr Plastic had strenuously opposed the application.
[74] It is worth stating that in the said letter, the Municipality further assailed the
process allegedly followed in obtaining the special consent use, further
stating that a special consent use is not the appropriate application for light
industry activities. Notably, the Municipality noted numerous discrepancies
18
in the documents relied on by Mr Plastic, particularly that the special consent
use number in Mr Plastic’s document relates to a different property.
[75] There can be no doubt in the circumstances that the stay application and
the review application were triggered by the conduct of Mr Plastic and the
Municipality. I deal with the review application below. For purposes of the
stay application, it is worth restating that the Municipality did not oppose the
application.
[76] Mr Plastic’s opposition was vexatious and unreasonable in the
circumstances, in light of the pending review. Moreover, Mr Plastic ’s
withdrawal of its opposition at the very last minute, when faced with the
prospect of the hearing , leads to the inference that the opposition was in
bad faith, or without merit, and made purely as a tactical manoeuvre.
[77] It follows that Mr Plastic should be held liable for the reserved costs of the
stay application.
Review application
[78] In the review application, the School contends that it was compelled to seek
a review of the special consent if found to be valid; alternatively, the decision
of the Municipality to rely on it and to amend its records to reflect such. This
came after the Municipality expressed its discontent with Mr Plastic,
agreeing with the School that the special consent documents were
fraudulent. It is, therefore, mind -boggling that the Municipality adopted a
supine stance and elected to remain a bystander while the review
application sought to challenge a decision which it has consistently
maintained did not emanate from it, and which it continues to assail to this
day.
19
[79] As the lawful authority, it was incumbent upon the Municipality, once it
realised that the purported special consent use was questionable, to
institute proceedings to have the unlawful decision and/or document set
aside. It could have also entered the fray and supported the application,
rather than merely abiding by the court’s decision in a matter where it held
all the cards to clarify the status of the documents and decisions taken. This
would not only assist the court, but it is also a constitutional dut y imposed
on the municipality as a holder of public power , particularly having stated
under oath that Mr Plastic’s documents and submissions left much to be
desired.
[80] To make matters worse, Mr Plastic filed a counterapplication which had
nothing to do with the School , as it sought an order compelling the
Municipality to convert the zoning of the premises on the basis that they had
allegedly been incorrectly commuted. Again, this is directly at odds with the
zoning certificate it relied on, dated 2 March 2021. If this was anything to go
by, there was no need for either a conversion or rezoning application.
[81] In all these applications, there is no basis for suggesting, as the respondents
do, that the School was the cause of its misfortune. When the main
application was instituted, the School could not have foreseen that the
Municipality would later rely on the very decision it had attacked in t hat
application. Neither can it be suggested that the School ought to have
proceeded with the main application while the validity of the special consent
remained unresolved, and while Mr Plastic continued to violate the town
planning bylaws as determined by the Municipality. The stay and the review
applications were likewise necessitated by the conduct of both the
Municipality and Mr Plastic. As such, nothing becomes of Mr Plastic’s Rule
34(1) tender for each party to pay its costs. The applicants’ refusal was
reasonable in the circumstances.
20
[82] In awarding costs, it bears mentioning that a municipality has a much higher
responsibility than a private litigant. T his is not difficult to understand: a
municipality is not merely a litigant defending private interests, but exercises
public power and administers public resources. 4 It is bound by the
Constitutional injunctions which underpin this higher level of responsibility,
including ss 41, 152, 195 and 237. If it fails in discharging its responsibilities
in the manner described, such failure is not only procedural but also
constitutional.
[83] The Municipality’s role is not negligible. In failing to enforce its legal
obligations, it not only enabled Mr Plastic to carry on with its activities
unhindered, but also significantly contributed to the trajectory of litigation in
this case.
[84] As regards the scale of costs, there seems to be no plausible reason why
Mr Plastic so strenuously opposed all the applications. Its conduct,
throughout the course of litigation, was nothing short of vexatious . The
conduct of the Municipality was self -defeating and demonstrably
inconsistent with its constitutional obligations. It follows that a punitive costs
order on the scale between attorney and client would be appropriate.
Order
[85] Accordingly, I make the following order:
a. The first and second respondents are liable for 40% of the applicants’ costs
of the main application on the scale between attorney and client.
4 Black Sash Trust v Minister of Social Development and Others (Freedom Under Law NPC
Intervening) [2017] ZACC 8; 2017 (5) BCLR 543 (CC); 2017 (3) SA 335 (CC); see also: Allpay
Consolidated Investment Holdings (Pty) Ltd and Others v Chief Executive Officer of the South
African Social Security Agency and Others (CCT 48/13) [2013] ZACC 42; 2014 (1) SA 604 (CC);
2014 (1) BCLR 1 (CC).
21
b. The third respondent is liable for 60 % of the applicants’ costs in respect of
the main application on the scale between attorney and client.
c. The first and second respondents shall pay the reserved costs of 26 April
2023, in respect of the stay application on the scale between attorney and
client.
d. The first and second respondents are liable for 40% of the applicants’ costs
in respect of the review application, including the counterapplication, on the
scale between attorney and client.
e. The third respondent is liable for 60% of the applicants’ costs in respect of
the review application , including the counterapplication, on the scale
between attorney and client.
f. The first and second respondents shall pay 40% of the applicants’ costs in
respect of this application on the scale between attorney and client.
g. The third respondent shall pay 60% of the applicants’ costs in respect of
this application on the scale between attorney and client.
S MFENYANA
Judge of the High Court
Date heard: 3 November 2025
Date of judgment: 28 May 2026
22
This judgment was handed down electronically by circulation to the parties’ representatives
by email and by uploading the judgment onto Caselines. The date of delivery of the
judgment is deemed to be 28 May 2026.
Appearances
For the applicants:
Counsel: G Young Benson
Instructed by P.S. Geddes Attorneys
For the 1st and 2nd respondents
Counsel: R. du Plessis
Instructed by Cronje Attorneys Inc.
For the 3rd respondent
Counsel: K Monareng
Instructed by Kunene Ramapala Inc.