Kopanong Local Municipality v Municipal Workers Retirement Fund and Others (2231/2021) [2021] ZAFSHC 171 (19 August 2021)

IN THE HIGH COURT OF SOUTH AFRICA

FREE STATE DIVISION, BLOEMFONTEIN

Case no: 2231 / 2021

In the matter between:

KOPANONG LOCAL MUNICIPALITY

Applicant

and

MUNICIPAL WORKERS RETIREMENT FUND First Respondent

THE SHERIFF OF THE HIGH COURT,

TROMPSBURG / SMITHFIELD Second Respondent

FIRST NATIONAL BANK Third Respondent

FREE STATE DEPARTMENT: CO-OPERATIVE

GOVERNANCE AND TRADITIONAL AFFAIRS Fourth Respondent

IN RE:

Case no: 3345 / 2017

Case no: 5762 / 2019

In the matters between:

MUNICIPAL WORKERS RETIREMENT FUND Applicant

KOPANONG LOCAL MUNICIPALITY Respondent

CORAM: HEFER AJ

HEARD ON: 29 JULY 2021

DELIVERED ON: 19 AUGUST 2021

[1] The Applicant, is a local sphere of government and organ of state as envisaged in section 239 of the Constitution of the Republic of South Africa, Act 108 of 1996, established as such in terms of section 12 of the Local Government: Municipal Structures Act 117 of 1998.

[2] The Kopanong municipal area is situated in the southern Free State. It has the largest surface area of the three local municipalities in the Xariep District, covering approximately 15 000 square meters.

[3] The Applicant (“the Municipality”) seeks an order interdicting the First Respondent (“the Fund”), from proceeding with execution of two orders of court and that the attachment of funds, effected subsequently to such order, held in the Municipality’s bank account, be set aside and rescinded.

[4] During June 2016 the Fund obtained a court order against the Municipality for payment of the amount of R1,208,996.61 in respect of arrear pension contributions in terms of section 13A of the Pension Funds Act, 24 of 1956. During November 2019, under the same case number, the Fund obtained yet another order for payment of further arrear contributions against the Municipality for the amount of R1,996,716.01. The Municipality also had to pay interest on these two amounts, as well as costs.

[5] During October 2017 the Fund obtained another order against the Municipality for payment of the amount of R6,505,277.04 plus interest and costs under case number 3345/2017 (“the 2017 order”) in the Free State Division. The Municipality did not satisfy the above order and the Fund issued a writ of execution and movables of the Fund were attached. A day before the sale in execution the Municipality brought an application for the setting aside of the writ and certain other relief. The Municipality was successful in this application. That application was however dismissed on appeal to the Full Bench during September 2019. The Municipality was ordered to pay the costs of the application and the costs of the appeal.

[6] During June 2020 the Court made yet another order against the Municipality under case number 5762/2019 in favour of the Fund for non-payment of contributions in terms of section 13A in the amount of R19,908,149.91, plus interest and costs (“the 2020 order”). A warrant of execution was issued pursuant to this order after the bills of costs had been taxed. The Sheriff attached the movable goods in terms of this writ during July 2020.

[7] At the time of the latter attachment, the Municipality had already fallen in arrears for a next period resulting in yet another application having to be issued. During November 2020 the Court made yet another order against the Municipality in favour of the Fund for non-payment of contributions in terms of section 13A in the amount of R4,288,938.30 plus interest and costs. Pursuant to this order a warrant of execution was issued which was served on the Municipality during April 2021.

[8] The 2017 and 2020 orders are the subject matters of this application.

[9] The Municipality issued the present application on an urgent basis during May 2021 to be heard on 21 May 2021. The relief which the Applicant sought, and which are presently before Court for consideration are the following:

(i) That First Respondent be interdicted from, in any manner, proceeding with the execution under the 2017 and 2020 orders for a period of 90 days of date of the order;

(ii) That the attachment by Second Respondent, being the Sheriff of the High Court Trompsburg / Smithfield, in terms of Uniform Rule 45(12) of the Funds held by the Applicant with the Third Respondent (First National Bank), be set aside and rescinded;

(iii) That the writs of execution issued under case numbers 3345/2017 and 5762/2019, and all other / further steps in execution be stayed pending the final determination of the application;

(iv) That Third Respondent be ordered to immediately release and make available all funds attached as per the writs of execution under case numbers 3356/2017 and R5762/2019; and

(v) Costs of the application.

[10] On the date of the hearing, the parties then agreed to a timeline for the exchange of affidavits and Heads of Argument and an interim order was made by agreement between the parties by Opperman J. The court order also provided for a Rule Nisi with return date 17 June 2021. On this date, after the Applicants successfully applying for the joinder of Applicants’ employees and members of First

Respondent as identified, the Rule Nisi issued was extended to 29 July 2021, when it served before me.

[11] According to the Municipality, referring to the 2017 and 2020 orders, in the total amount of approximately R26 million, it is currently not in a position to settle these amounts. This led, according to the Municipality, to the Municipality’s account being attached. For this reason, it is stated, that the Municipality is compelled to approach the Court to see to the release of the bank account.

[12] As far as the reasons for not being able to settle the amounts due in terms of the court orders, the Municipality states that it has experienced financial challenges which have negatively impacted on its financial sustainability and delivery of basic services. Kopanong, as is stated, has no large businesses or industries and therefore relies largely on household consumers to finance the Municipality. This has led to Kopanong having financial pressure to pay its bulk services, salaries and trade creditors. It is further the Municipality’s case that the Municipality experienced challenges in maintaining its infrastructure and to address the service delivery, but is growingly successful in improving the backlogs which should enchange its capabilities to raise sufficient revenue to meet its contractual obligations and broaden its tax base. It is further stated that the dire financial position of the Municipality has been exasperated by the advent of the Covid-19 pandemic. According to the Municipality, the Municipality has already suffered an estimated 40% decline in collected revenue since the initial lockdown period.

[13] According to the Municipality, it does not receive sufficient income from its own revenue streams to see to its monthly obligations. The monthly salary bill is about R10.5 million and operational costs in the vicinity of R7 million. Added to these are expenses for services, emergencies, etc. If one has regard, according to the Municipality, to Kopanong’s monthly income and its payment obligations in regard to salaries and the payment commitments made to creditors, it is evident that the Municipality cannot at this stage pay the full judgment amount owed to the First Respondent in one single payment.

[14] The Applicant relies on the provisions of Rule 45A of the Uniform Rules of Court in terms of which a court may suspend the execution of any order for such period as it may deem fit.

[15] The Applicant further relies on the provisions of section 139(5) of the Constitution of South Africa, Act 108 of 1996 as well as section 139 of the Municipal Finance Management Act, 56 of 2003 in respect of mandatory, non-discretional intervention by the provincial government, failing which the national government would be required to intervene. According to the Municipality, the provincial intervention is the appropriate remedy to follow in the Applicant’s circumstances and the Applicant has the right to compel the provincial executive to intervene accordingly.

[16] The Municipality further relies on the provisions of sections 152 and 153 of the Municipal Finance Management Act. In terms of section 152, if a Municipality is unable to meet its financial commitments, it may apply to the High Court for an order to stay, for a period not exceeding 90 days, all legal proceedings, including the execution of legal process, by persons claiming money from the Municipality or a municipal entity under the sole control of the Municipality. In terms of section 153, a Municipality may apply to the High Court for an order:

(a) to stay for a period, not exceeding 90 days at a time, all legal proceedings, including the execution of legal process, by persons

claiming money from the Municipality; and

(b) to suspend the Municipality’s financial obligations to creditors, or any portion of those obligations, until the Municipality can meet those obligations.

According to the Municipality, the relief sought in this application is in line with these sections in seeking to protect the interests of the Municipality.

[17] First Respondent’s opposition to the application is firstly based on two points in limine being the issue of urgency and non-joinder of the employees-members of the Applicant and secondly, the merits of the Municipality’s

case which includes the Fund’s further defence of res judicata in respect of the 2017 order. Whereas the aspect of non-joinder had successfully been dealt with by the order of court on 17 June 2021, this do not need to be dealt with further.

Urgency:

[18] The issue of urgency had been reserved for adjudication in the order of Opperman J on 21 May 2021.

[19] It is common practice that when a litigant approaches the Court on an urgent basis, the founding affidavit in support of such application, should contain a specific heading dealing with the urgency of the matter. An Applicant who wishes to rely on the procedure provided for in Rule 6(12)(b) must set out sufficient facts in the founding affidavit to enable the Court to decide whether urgent relief should be granted.

“Specific averments of urgency must be made and facts upon which such averments are based must be set out in the affidavit where it is not otherwise apparent that the matter is urgent.”[1]

[20] Kirk-Cohen AJ (as he then was) in Cikwe v SA Mutual Fire and General Insurance Co Ltd[2], stated that it does not follow that an application is necessarily defective if the form referred to in Rule 12 is not strictly adhered to, but that it is

“… the substance of the affidavit and not its form, which will weigh with a court; If an affidavit sets out facts upon which a court can decide that the applicant is entitled to relief in terms of the sub-rule, the court will entertain the application. If the only reasonable inference from the facts set out in the affidavit is that the matter is one of urgency, then an applicant will have complied with the requirements of the sub-rule, even though he does not make a specific averment that it is urgent.”

[21] The Municipality, in respect of urgency, relies on the fact that the Municipality is currently not in a position to settle the amounts of the 2017 and 2020 orders which led to the Municipality’s account being attached. For that reason, the Municipality is compelled to approach the Court in an urgent manner to see to the release of the bank account. Mr Roux, appearing on behalf of the Applicant, also argued that the urgency of the matter is based on the attachment of the Applicant’s bank account on 12 May 2021. He further submitted that the Municipality will not get substantial redress in an application in due course due to the fact that the Municipality’s inability to transact fully with its account held with the Third Respondent, may lead to a halt in service

delivery, non-payment of employees’ remuneration and non-payment of creditors in general. Furthermore, it is argued on behalf of the Municipality that service delivery protests may follow imminently as has been witnessed in the not-so-distant past. Furthermore, according to the Municipality, other creditors will surely litigate against the Municipality for failure to honour its financial obligations.

[22] According to Mr Van der Berg SC who appeared on behalf of the First Respondent, this is a classic case of self-created urgency which has been squarely raised in the answering affidavit.

[23] In support of his argument, Mr Van der Berg referred me to an unreported judgment in the Eastern Cape Division where the present Fund together with five other respondents opposed an application by the Ntabankulu Local Municipality.[3] In this matter, urgency also remained an issue for the Court to determine. In his judgment Lowe J confirmed the principle that an applicant cannot create its own urgency by simply waiting until the normal rules can no longer be applied. In considering urgency, the Honourable Judge also referred to the issue of the strength of an applicant’s case and any delay in asserting its rights (self-created urgency).

[24] In dealing with the principle of self-created urgency, Lowe J said the following:

“[42] The application is primary premised upon section 139(5) of the Constitution with section 152 of the MFMA.

[43] In the founding papers, as to the attachment, this is dealt with initially in the affidavit as a discreet item, on the basis that the vehicles attachment deprives Applicant of the ability to meet its obligation to provide effective service delivery to the community. This was the alleged basis as to urgency.

[44] This entirely failed to explain the delay in bringing proceedings from service of the writ and attachment of the vehicles on 26 February 2021 at the launch of the application.

[44] It is this that is said to cause applicant to seek resource to section 152(1) of the MFMA. This is articulated in a single page in the founding affidavit and again no explanation as to why such a far-reaching application, with dramatic consequences for the applicant, was not brought at a far earlier date when it was clear from at least November 2020 that the debt was due and would be pursued by execution if necessary – Applicant again inexplicably and giving no explanation hereof sat by for more than 4 months fully aware, as it must have been, as to what lay ahead.

[46] This became plainly so on attachment (not removal) of the vehicles on 26 February 2021 – the only suggested action being to tender payment in transfers from January 2022 to December 2024, so far-fetched an offer as to be guaranteed rejection.

[47] There is no answer given to the self-created urgency, an ill-fainted and manufactured attempt to buy time in the face of long delay …

[48] There was no reasonable expectation whatsoever that execution would not proceed.

[49] Applicant moreover had apparently failed to plan or budget hereof and clearly that must have appreciated for a considerable time that a storm was fast approaching. Applicant’s attempted answer hereto fails to show, in reality, that it had even attempted to deal herewith in budgetary context or to obtain additional money to apply to hereto, or even in fact that its financial position was such that it could not meet the balance of a judgment debt – beyond a bold allegation to this effect.

[50] …

[51] …

[52] In the result, even had the matter had some urgency, it was issued after a lengthy delay from the commencement of execution and, self-caused urgency on an unacceptable time table.

[53] Not only did the supply to the attachment itself, but to a one-page attempt to implicate section 152 of the MFMA and section 136(5) of the Constitution, both waiting matters of considerable magnitude and consequence. This too was self-created urgency, not justifiable on the papers.”

[25] In the present matter, the actions by the Municipality are very much the same. In respect of the 2017 order, the Fund obtained an order against the Municipality. On 6 November 2017 the Fund caused a writ of execution to be issued by the Registrar of the Court against the Municipality. A whole host of movable assets of the Municipality was consequently attached. A sale of execution pursuant to the said attachment was arranged and then scheduled for 8 November 2018. This intended sale in execution prompted an urgent application in the court a quo by the Municipality seeking to stay the intended sale in execution pending the finalisation of the application. The court a quo ordered that the sale in execution by way of auction, premised on the said writ of execution be set aside as opposed to stayed. It is common cause that this order was however set aside by the Full Bench on 19 September 2019 already. The effect thereof therefore is that since September 2019 the Municipality must have been aware of the fact that the First Respondent was entitled to proceed in terms of the writ of execution

issued in respect of the 2017 order.

[26] As far as the 2020 order is concerned, the Court upon application by the First Respondent herein, already on the 25th of June 2020, ordered the Municipality to make payment to the Fund. A writ of execution in respect of this amount was then issued on the 2nd of July 2020 and served on the Municipality on the 7th of July 2020.

[27] It therefore appears that since September 2019, being the delivery of the judgment of the Full Court and at least July 2020, the Municipality, on its own version, has done nothing in an attempt to settle the amounts due, in respect of at least the two orders of Court being the subject-matter of the application herein. The Municipality namely did not avail itself to any of the remedies upon which it now relies in an attempt to stay the execution process, which will be dealt with herein later again.

[28] Then we get to the 12th of May 2021 when the Municipality’s account held at FNB was attached by way of a Rule 45(12)(a) attachment. In response to an apparent notice of such attachment, the Municipality addressed correspondence to First National Bank, First Respondent’s attorneys of record and First Respondent itself on the 13th of May 2021. Before this date, we have the dates of September 2019 and July 2020 as far as the “revived” first writ of execution and the second writ are concerned. No further steps were taken in respect of continuation of the execution process up until the attachment of the Municipality’s account held at First National Bank. All of a sudden, on the 12th of May 2021, the Municipality found itself in the position that its account with First National Bank cannot be utilized for the purpose for which it is being held at the Bank. It is at that stage that the urgency arose.

[29] Upon receipt of the notice of attachment of the FNB account, the Municipality addressed correspondence in an attempt to resolve the matter. Less than one week thereafter, the present application was launched.

[30] Although it is to be regarded as undesirable that the matter was brought before Court on only two days’ notice to the Respondents and in particular the First Respondent, in view of the drastic implications of the attachment of the Municipality’s account with FNB, considering the contents of the Municipality’s founding affidavit as a whole, I find that the urgency was not self-created as argued on behalf of First Respondent. Therefore, the matter should have been and should still be entertained as an urgent application in terms of Rule 6(12) of the Uniform Rules of Court.

[31] The merits of the Municipality’s application and the First Respondent’s opposition to the application, including the further point in limine of res judicata should then further be considered. For practical purposes, I will however first deal with the merits of the Municipality’s application whereas such merits are applicable to both the 2017 as well as the 2020 orders.

[32] It needs to be mentioned that Mr Van der Berg correctly pointed out during argument, that the Municipality’s prayer to the effect that the writs of execution issued under case number 3345/2017 and 372/2019 and all other / further steps in execution be stayed pending the final determination of this application, is completely nonsensical.

At this stage we are already at the final determination of the application.

[33] Therefore, consideration of the Municipality’s application before Court, should therefore be limited to:

(i) Whether Applicant is entitled to an order to the effect that First Respondent is interdicted from, in any manner, proceeding with execution under the subject case numbers for a period of 90 days of date of the order;

(ii) Whether the attachment by Second Respondent in terms of Uniform Rule 45(12) of the funds held by the Applicant with the Third Respondent (FNB) should be set aside and rescinded; and

(iii) Whether Third Respondent should be ordered to immediately release and make available all funds attached as per the writs of execution under the subject case numbers.

It needs to be mentioned at this stage that in its founding affidavit, the Municipality relied on the fact that the attachment of the account with First National Bank in terms of the writ of execution is unlawful and as such the writs stand to be set aside, alternatively stayed pending final adjudication of the matter. Considering the effect of the interim interdict issued by Opperman J, it appears that this attachment was indeed stayed pending the final adjudication of this application. Neither Mr Roux nor Mr Van der Berg dealt with the alleged unlawfulness of the Rule 45(12) attachment and limited their arguments to those as will be dealt with hereunder.

[34] The Municipality argues that the circumstances of the matter are such that the Court ought to deem it fit for the attachment and consequently also the execution of the orders to be suspended in terms of Uniform Rule 45A read with section 152 of the MFMA. According to Mr Roux the purpose of section 152 of the MFMA is to afford a municipality sufficient time to invoke the provisions of section 139(5)(a) of the Constitution read with section 139 of the MFMA.

[35] The first jurisdictional fact which needs to be pleaded and proven to obtain the protection of section 152 of the MFMA, is that a municipality is indeed unable to meet its financial commitments. Analog to the field of the Law of Insolvency, before a court will authorise such a stay, it must be satisfied that a municipality is indeed unable to meet its financial commitments.

[36] In an attempt to show that the Municipality is indeed not able to meet its financial commitments, the Municipality provided a copy of a table indicating the Municipality’s income for the period of July 2020 to April 2021. From this document, the origin of which was not explained by the Municipality, it appears that on the version of the Municipality, for this period up until April 2021, it has received a total amount of approximately R177 million consisting of revenue, unconditional grants, COGTA contributions / payments, Centlec advances and conditional grants. As far as monthly expenses and obligations are concerned, the Municipality alleges that its monthly salary bill is about R10.5 million and that operational costs including Bloemwater payments are in the vicinity of R7 million.

[37] The Municipality then refers to its monthly income but has failed to put any financial statements before Court to show what exactly this income amounts to. The Municipality has advanced no evidence of its financial position and has only made bald averments in this regard. Although this failure was raised in the answering affidavit by the First Respondent, as pointed out by Mr Van der Berg, the Municipality still refrained from setting out its full financial position. No sufficient information had been placed before me in order to find that the Municipality is indeed unable to meet its financial commitments. For the purposes of establishing the jurisdictional facts which need to be proven by the Municipality, the only numbers made available by the Municipality are that it has received the amount of approximately R177 million up until April 2021.

[38] The Municipality merely refers to the provisions of section 152(1) of the MFMA but fails to refer to the provisions of section 152(2) in terms of which notice of an application in terms of section 152(1) must be given to (a) the MEC for Local Government and the MEC for Finance in the province; (b) the Minister; (c) the Cabinet Member responsible for Local Government; (d) Organised Local Government; and (e) to the extent that they can reasonable be contacted, all persons to whom the

Municipality or the Municipality entity owes an amount in excess of a prescribed amount, or if no amount is prescribed, in excess of R100,000.00. The Municipality has failed in totality to adhere to any of these requirements.

[39] Because the Municipality has failed to prove that it is indeed unable to meet its financial commitments and further, because the requirements of section 152(2) had not been met, the Municipality’s application in terms of section 152 therefore cannot succeed.

[40] In its founding affidavit, the Municipality further referred to section 153 of the MFMA. Wisely so, Mr Roux did not rely on the extra-ordinary relief provided for in section 153 whereas this section can only be invoked once, amongst others, the provincial executive has intervened in terms of section 139 and a financial recovery plan to restore the Municipality to financial

health as been approved for the Municipality. This has not been done.

[41] “Execution is a process of the court and the court has an inherent power to control its own process subject to the rules of court. It accordingly has a discretion to set aside or stay a writ of execution … The court will, generally speaking, grant a stay of execution where real and substantial justice requires such a stay or, put otherwise, where i justice could otherwise be done.”[4]

[42] In particular circumstances, the Court could, in determination of the factors to be taken into account in the exercise of its discretion under Rule 45A borrow from the requirements for the granting of an interlocutory interdict.[5] However, the analogy of an interdict appears not to be entirely appropriate where an applicant is not asserting a right in the strict sense but a discretionary indulgence based on the apprehension of injustice.[6]

[43] It is the Municipality’s case that an injustice will be done or that there is an apprehension of injustice should the relief sought not be granted. In broad terms, it is the Municipality’s case that it should be granted a period of time to enable it to take the steps as provided for in section 152 and 139 of the MFMA and section 139(5)(a) of the Constitution. The Municipality alleges in particular that it is currently awaiting support from the provincial department to assist in setting the outstanding amount, alternatively making arrangements for payment thereof.

[44] On the facts before me however, there is nothing to show that since the two subject orders had been granted the first being the order during June 2016 and the next during June 2020, (the two subject orders) as well as an order in 2021, the Municipality has taken any steps as provided for in the legislation referred to. The Municipality has been in almost continuous breach of paying monthly contributions to the Fund as required in terms of Section 13A of the Pension Funds Act. At various times during the past six years the courts have been making orders which have simply not been complied with. The Municipality is in continuous breach of its statutory duty. As pointed out by the Fund, the failure to make contributions to the Fund on behalf of its members causes severe prejudice to the Fund and its members because it means, amongst others:

(i) That the Fund is not able to invest the outstanding contributions in terms of the Fund’s investment strategy for the benefit of the members of the Fund;

(ii) Should a member employed by the Municipality resign or be retrenched while contributions in respect of that member remain outstanding, the benefit payable by the Fund to that member would be less than what would have been if the contributions had been paid on time;

(iii) The conduct of the Municipality in not paying contributions for its employees who are members of the Fund as prescribed in the PFA

prevents the Fund from paying risk premiums which are payable to the insurers in terms of the laws of the Fund;

(iv) The Fund is also prejudiced by a failure to make contributions in full or at all as the administration fees used to administer the Fund are deducted from the contributions. If some employers do not make contributions, it means that the Fund cannot deduct administration

fees in the case of those members in respect of whom no contributions are being paid;

(v) The Municipality through its brazen contravention of its statutory obligations, is prejudicing its employees or former employees and the members of the Fund, including pensioners;

(vi) Because the monies are not paid over to the Fund it is reasonable to assume that the Municipality is using retirement fund contributions to pay its own officials and employees as well as other creditors of the Municipality.

[45] Borrowing from the words of Lowe J in the Ntabankulu Local Municipaltiy-matter:

“Applicant moreover had apparently failed to plan or budget therefore and clearly thus must have appreciated for considerable time that a storm was fast approaching.”[7]

[46] Up to date, the Municipality has failed to show that it had even attempted to deal with the considerable amounts due to the Fund in budgetary context or to obtain additional funds.

[47] In the Full Bench judgment in respect of the 2017 order, the Municipality’s attention has already been brought to the alternative mandatory remedies which could and should have been utilised if the Municipality was in such dire financial straits at it wanted the Court to believe. Even in spite of that, which was brought to the Municipality’s attention approximately 20 months ago, there is nothing before Court to show that the Municipality indeed attempted to utilise such alternative remedies. It is important to mention that such alternative remedies are still to the disposal of the Municipality.

[48] Taking into account all these factors, it cannot be said that an injustice will be done should the relief sought not be granted. The opposite is true namely an injustice will be done towards the Fund and the employee-members of the Fund if the execution process be stayed any longer.

Res judicata:

[49] In view of the fact that the Municipality’s application stands to be dismissed in respect of both subject orders, I do not deem it necessary to deal with First Respondent’s res judicata point in limine.

Costs:

[50] First Respondent seeks an order of cost on an attorney and client basis.

[51] Attorney and client costs are in general awarded in circumstances where the litigation is vexatious, fraudulent or dishonest, or constitutes an abuse of process. To this one may add that such order is justified with the conduct concerned is “extra-ordinary and worthy of the Court’s rebuke”.[8]

[52] I am not convinced that in the circumstances of this particular case, a punitive cost order is to be awarded. Although very similar, the facts differ from those in the Ntabankulu-matter.

Interim order

[53] As correctly pointed out by Mr Van der Berg, unless the Municipality is successful in its application, the interim order granted on 21 May 2021 and extended on 17 June 2021 will lapse and stands to be discharged.

The order I make is the following:

ORDER:

1. The application is dismissed with costs.

2. The rule nisi in particular the interim order contained in paragraph 3 of the order dated 21 May 2021, as extended on 17 June 2021, is discharged.

________________________

J J F HEFER, AJ

On behalf of the Applicant: Adv LA Roux

Instructed by: Mhlokonya Attorneys

Applicant’s Attorneys

53 Kellner Street

Westdene

Bloemfontein

On behalf of the First Respondent: Adv P van der Berg SC

Instructed by: McIntyre & Van der Post

Attorney for First Respondent

12 Barnes Street

[1] Cekeshe and Others v Premier, Eastern Cape and Others 1998 (4) SA 938 (TK)

[2] 1977 (3) SA 438 (W) at 440H

[3] Ntambankulu Local Municipality v South African Municipal Workers Retirement Fund and 5 Others, case number 1052/2021, Eastern Cape Division, delivered on 27 May 2021.

[4] Strime v Strime 1983 (4) SA 850 (C) at 852A - B

[5] Erasmus v Sentraal Wes Kooperasie 1997 (4) ALL SA 303 (A) at 307.

[6] Road Accident Fund v Strydom 2001 (1) SA 292 (CPD)b.

[7] Par. [49]

[8] Ntabankulu Local Municipality v South African Municipal Workers Retirement Fund (supra), par. [62]