Kgentlengrivier Local Municipality v Bertorbrite (Pty) Ltd and Another (UM118/2023) [2023] ZANWHC 98 (26 June 2023)

SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

IN THE HIGH COURT OF SOUTH AFRICA

NORTHWEST DIVISION, MAHIKENG

Case No.: UM118/2023

Reportable: YES / NO

Circulate to Judges: YES / NO

Circulate to Magistrates: YES / NO

Circulate to Regional Magistrates: YES / NO

In the matter between:

KGETLENGRIVIER LOCAL MUNICIPALITY

Applicant

and

BERTOBRITE (PTY) LTD

First Respondent

(Registration number: 2[...])

THE SHERIFF OF THE HIGH COURT,

Second Respondent

VENTERSDORP, KOSTER AND

SWARTRUGGENS

This judgement was handed down electronically by circulation to the parties’ representatives via email. The date and time of hand-down is deemed to be 26 June 2023.

ORDER

In the result, the following order is made:

The application is dismissed with costs.

JUDGEMENT

Mfenyana J

Introduction

[1] This matter served before me in the urgent court having been set down on extremely truncated timeframes. The applicant, (the Municipality) seeks an order condoning its non- compliance with the rules relating to forms and service, as contemplated in Rule 6(12) of the Uniform Rules, and an order staying a writ of execution dated 18 April 2023, issued in execution of a judgement of this Court, granted in favour of the first respondent on 17 April 2023, pending finalisation “of all and any appeal processes” instituted by the applicant.

[2] In the alternative, the applicant seeks that the notice of sale, (for 23 June 2023) be declared invalid for non-compliance with the provisions of Rule 45(7)(a) of the Uniform Rules of this Court. The applicant further seeks the return of certain movable assets of the Municipality, removed by the sheriff, in execution of the judgement of 17 April 2023.

[3] The applicant avers that the matter is of extreme urgency as a grave injustice might occur should the applicant be successful in its application for leave to appeal.

[4] The application is opposed only by the first respondent.

[5] The brief history of the matter, relevant to the current application, is that on 17 April 2023 this Court, per Djaje DJP, granted judgement in favour of the first respondent to the tune of R12 466 266.20. The judgement was in respect of services rendered by the first respondent to the applicant pursuant to a Service Level Agreement concluded between the parties.

[5] Having taken office on 10 April 2023, the new Municipal Manager, learnt of the judgement on 26 April 2023 when the sheriff attended at the offices of the Municipality, to compile an inventory of movable assets placing them under judicial attachment. These assets were removed by the sheriff on 12 May and 15 May 2023, and at which stage the first respondent also attached two bank accounts belonging to the Municipality. Upon learning of the judgement, the Municipal Manager made attempts to settle the matter with the first respondent, to no avail.

[6] After some attempts to obtain the court file, and obtaining legal advice, counsel was appointed on 21 May 2023. According to the respondent, the attachment yielded no results as the applicant simply ignored the attachment. The sheriff thereafter attached another bank account belonging to the Municipality. On 30 May 2023, the applicant brought an urgent application for an order staying the writ of execution and suspending the operation of the judgement of Djaje DJP. That application was heard on 30 May and 1 June 2023, and on 2 June 2023 the Court, per Khan AJ struck the application off the roll, for want of urgency.

[7] The applicant’s contention in bringing the present application is that the first respondent has, despite being aware that there is an impending application for leave to appeal, which is set to be heard on 11 August 2023, the first respondent proceeded to instruct the sheriff to hold a sale on 23 June 2023 at 11h00, in execution of the same judgement sought to be appealed against. In the founding affidavit deposed to by the Municipal

Manager (Mr Letsoalo), the applicant states that because the application for leave to appeal was filed out of time, the operation

of the judgement remains in place. This, the applicant contends, would lead to a grave injustice, as the basis for seeking leave to appeal is to bring the new facts, to light, on appeal. The applicant would suffer irreparable harm while the first respondent would suffer no prejudice, as it could still execute the judgement if the application for leave to appeal fails, so contends the applicant.

[8] The applicant also avers that the new municipal manager, Mr Letsoalo seeks to rectify the illegality by staying the writs, with the intention of bringing new facts on appeal. This cannot be, as it is trite that an application for leave to appeal cannot be premised on new facts.

[9] The first respondent on the other hand, avers that, as was the case with the previous application, there are no grounds for urgency, and that any purported urgency is of the applicant’s own doing, as the applicant had known since 26 April 2023 that the first respondent intended to execute the judgement of Djaje DJP. Despite various other events, including the attachment, and removal of the applicant’s assets and bank accounts on 12 and 15 May 2023, the applicant only elected to bring the ill-fated urgent application on 30 May 2023. In the written submissions filed on behalf of the forst respondent, it is contended that the real reason in launching the application, is obtain an interdict that would prevent the first respondent from implementing the judgement unti the final determination of any appeals that may lie against that judgement.

[10] On the merits of the application, it is the first respondent’s contention that the applicant’s belief is based on misinformation, assumptions and speculation, and that it was open to the applicant to withdraw the application. This, the first respondent advised the applicant as far back as 21 June 2023, when the applicant filed its notice of motion for the urgent application to be heard on 22 June 2023 (second urgent application).

[11] The first respondent contends that by the applicant’s own admission, there was no advertisement of the sale, and thus the applicant is not able to produce a copy of such advertisement. With due diligence, the applicant would have been able to establish the correct factual and legal position, the first respondent further contends.

[12] The first hurdle for the applicant to overcome is urgency. It must demonstrate that the provisions of Rule 6(12)(a) have been complied with. The applicant must set out “explicitly the circumstances which the applicant avers render the matter urgent and the reasons why the applicant claims that he or she could not be accorded substantial redress at a hearing in due course.”

[13] In this application, the applicant places reliance on the provisions of Rule 45(7)(a) which require the sheriff to sell movable property, which has been attached, by public auction after the expiry of not less than 15 days after the property was seized, and after advertising same. The applicant contends that this has not happened, and as a result, the sale scheduled for 23 June 2023 is irregular. In paragraph 36 of the founding affidavit, the deponent states:

“36. The interim urgent relief is sought as the Municipality cannot obtain substantial redress in due course in a normal opposed motion as the Sheriff has already attached the crucial movables and indeed intend to dispose same at a sale in execution on the 23rd of June 2023 at 11h00 to satisfy the order.”

[14] Ms Nthambeleni argued on behalf of the applicant that the first respondent failed to give an undertaking that a sale would not take place on 23 June 2023. The relevant question to ask in this regard is where and how the applicant gained knowledge that such a sale would be taking place on the date in question. From the reading of the papers, as well as submissions made on behalf of the parties, both written and oral, it appears that the applicant relied on the email exchanges between the first and second respondent wherein the first respondent enquired from the second respondent, about the conditions of a sale to be held on 23 June 2023, to which the second respondent ultimately replied that the provisions of Rule 45 would need to be complied with, and requested to be furnished with proof of advertisement. The matter could not be taken any further.

[15] At the hearing of the matter, much was made of these email exchanges. The upshot of it is that ultimately, the sheriff was to allocate a new sale date. Surely the sale had to comply with the requirements of Rule 45(7)(a), absent which, no sale could be scheduled. In any event, the scheduling of such sale would need to be confirmed by the sheriff. This did not happen. It is clear that the applicant continued to labour under the belief, albeit mistaken, that there was a sale to be held. I do not think that belief, mistaken as it was, was reasonable in view of the provisions of the Rules, which the applicant, by its own admission was fully aware of.

[16] In Nelson Mandela Metropolitan Municipality & Others v Greyvenouw CC and Others 2004 (2) SA 81 (SE) at [37], Plasket AJ (as he then was) said the following:

“It is trite that applicants in urgent applications must give proper consideration to the degree of urgency and tailor the notice of motion to that degree of urgency. It is also true that when Courts are enjoined by Rule 6(12) to deal with urgent applications in accordance with procedures that follow the Rules as far as possible, this involves the exercise of a judicial discretion by a Court 'concerning which deviations it will tolerate in a specific case'. …”

[17] Thus, the Court is enjoined to determine whether non- suiting the applicant would be an appropriate remedy in the specific circumstances of each case. In my view the present application is such a matter; that “the point must clearly be made that the Rules should be obeyed and that the interest of the other party and his lawyers should be accorded proper respect….” - Caledon Street Restaurants D' Aviera [1998] JOL 1832 (SE).

[18] Lowe J, in Teoka Engineers (Pty) Ltd v Alfred Nzo Municipality and Others, an unreported decision of the Eastern Cape Division aptly stated at para. 33 that:

“An Applicant cannot create its own urgency by simply waiting till the normal rules can no longer be applied.”

[19] I align myself with these sentiments.

[20] In her judgement, Khan AJ, stated that the sale had not been advertised. It seems that this may have had an influence on the applicant’s decision, to again approach this Court on an extremely urgent basis. The difficulty with this, is that even in the present application, the sale has still not been advertised, despite the applicant’s belief that it was to take place. It was only out of suspicion and haste that mistaken belief, hastily approached this Court. With this aspect of the relief not having been sustained, it follows that the applicant has not proved that the matter is of such urgency that it cannot be heard in due course.

[21] Save for the inclusion of the prayer seeking to declare the notice of sale on 23 June 2023 invalid, and the omission of the prayer relating to the return of ‘any monies attached from the applicant’s bank accounts’, the notices of motion pertaining to the two urgent applications are identical. What this translates to is that the present application disclosed no cause of action for the relief sought, as there is no sale to be interdicted.

[22] In the respondent’s answering affidavit, it is stated that the applicant’s attorneys were informed that no auction or sale would take place on Friday, 23 June 2023. In chambers, I was also assured by the respondent’s counsel that there is no sale in execution that was scheduled to take place on 23 June 2023. Notwithstanding such assurances, it is curious that the applicant still persisted with the application.

[23] The applicant has conceded that in the absence of an application for leave to appeal which complies with the Rules, the operation of the judgement of Djaje DJP is not suspended. In essence, there is no application for leave to appeal as it was filed out of time, and condonation has not been granted. Until the condonation application is granted, there is no application for leave to appeal. Thus, the applicant cannot be heard to be saying that no prejudice will be suffered by the first respondent in the circumstances.

[24] In the circumstances the application must fail.

[25] The first respondent seeks that costs be granted against the Municipal Manager in his personal capacity. I cannot find any justifiable reason to warrant such a cost order.

Order

[26] In the result, I make the following order:

S MFENYANA

JUDGE OF THE HIGH COURT OF SOUTH AFRICA

APPEARANCES

DATE OF HEARING: 22 JUNE 2023 JUDGEMENT RESERVED: 22 JUNE 2023 DATE OF JUDGEMENT: 26 JUNE 2023 For the Applicant: Adv T Mathopo Adv B Nthambeleni Instructed by: Rangwako Attorneys c/o: Kgomo Attorneys Email: info@rangwakoattorneysinc.co.za For the first Respondent: Adv SJ Bekker SC Instructed by: Weavind&WeavinVanRooyen c/o: Van Rooyen Tlhapi Wessels Inc Email: thato@weavind.co.za