Lordos (Pty) Ltd v City of Johannesburg and Others (10905/2022) [2024] ZAGPJHC 729 (13 August 2024)

REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, JOHANNESBURG

CASE NO: 10905/2022

1. REPORTABLE: YES / NO

2. OF INTEREST TO OTHER JUDGES: YES/NO

3. REVISED.

In the matter between:

LORDOS (PTY) LTD Applicant and CITY OF JOHANNESBURG 1st Respondent EXECUTIVE MAYOR, CITY OF JOHANNESBURG MPHO PHALATSE 2nd Respondent ACTING CITY MANAGER, CITY OF JOHANNESBURG BRYNE MADUKA 3rd Respondent

JUDGMENT

MAKUME J:

[1] This is an application to find the Respondents guilty of contempt of a court order which was granted by Senyatsi J on the 12 October 2022 in which order the first Respondent was ordered to comply with certain directives concerning the Applicant’s Municipal levies account.

[2] That order was duly served on the first Respondent. On receipt of the application for contempt which now for the first time cited the second and third Respondents the first Respondent filed an answering affidavit deposed to by Mr Tuwani Ngwana the legal advisor in the employment of the City.

[3] In the answering affidavit the first Respondent raised the following defences:

3.1 Firstly that the Applicant had failed to comply with the provisions of Rule 30A of the Uniform Rules in that no notice of compliance was served. In the result the contempt application was issued prematurely and thus defective

3.2 Secondly that the notice of that application afforded the Respondent a period of 5 days instead of 10 days to file their notice of intention to oppose.

3.3 Thirdly that when the original application was issued the second and third Respondents were not joined in the result the Applicant failed to comply with the provisions of Rule 10 of the Uniform Rules of Court.

3.4 Fourthly that the Court order granted by Senyatsi J was not properly served on the Respondent but was served on the first Respondent’s Attorneys via email without the court’s authorisation.

3.5 Lastly the first Respondent maintains that it has complied with the court order and that the Applicant has failed to make out a case for contempt.

[4] The Applicant filed its Replying affidavit on the 31st May 2023 and indicated that it now seeks no relief against the second and third Respondents but reserved the right to later proceed against both Respondents in later proceedings. The Applicant did not indicate what later proceedings it anticipated neither did it tender wasted costs for their withdrawal.

[5] In the Replying affidavit the Applicant takes issues with all the defences raised by the Respondent and denies that the Respondent has complied with all the orders granted by Senyatsi J.

[6] On the 1st June 2023 the Applicant filed heads of argument, Applicant chronology as well as a list of authorities.

[7] The first Respondent filed heads during March 2024.

[8] On the 31st July 2024 the Respondent’s Counsel, Adv Sithole appeared there was no appearance for the Applicant at 10h00. I stood the matter down to enable the Respondents’ Counsel to ascertain from Applicant Counsel if they were coming to court.

[9] When the court reconvened at 10h24 I was informed that Counsel for the Applicant has no knowledge that the matter was on the roll. Respondents Counsel also inform the Court that the attorney told their counsel that they did not place the matter on the roll.

[10] Respondent’s Counsel asked that the hearing proceed as it was clear that no one is coming to Court. I granted the re quest and heard the Respondent on the merits of the application.

[11] It was only during address by Counsel for the Respondent that this Court became aware of a notice of removal dated the 31 July 2024. It was uploaded at 10h23 by one Sonica Reichert from the Applicant’s office. In the email the writer said the following:

“It was brought to our attention that the matter was enrolled for even date. We did not serve a notice of set down and the matter should not have been enrolled. Attached hereto is notice of removal from the roll which is also copied to the Respondent’s attorneys kindly acknowledge receipt.”

[12] When this email came to my attention it was already late and Counsel had already finalised his submissions to the Court. Having heard Counsel I was persuaded that the Applicant had not made out a case for contempt besides upholding the point in limine raised.

[13] In the result I made the order which his uploaded on Caselines marked A.

DATED at JOHANNESBURG this the day of August 2024.

M A MAKUME

JUDGE OF THE HIGH COURT

GAUTENG LOCAL DIVISION, JOHANNESBURG

APPEARANCES

DATE OF HEARING 31 July 2024 DATE OF JUDGMENT August 2024 FOR APPLICANT No Appearance FOR 1ST RESPONDENT ADV E Sithole INSTRUCTED BY Ramatshila-Mugeri Inc