Minister of Water and Sanitation v Intsika Yethu Municipality and Another (442/2018) [2020] ZAECMHC 53 (10 November 2020)

IN THE HIGH COURT OF SOUTH AFRICA

[EASTERN CAPE LOCAL DIVISION, MTHATHA]

[Not Reportable]

CASE NO: 442/2018

Heard on: 29/10/20

Delivered on: 10/11/20

In the matter between:

MINISTER OF WATER AND SANITATION

Applicant

and

INTSIKA YETHU MUNICIPALITY

First Respondent

SHERIFF OF THE HIGH COURT, MTHATHA

Second Respondent

JUDGMENT

NHLANGULELA DJP

[1] When this matter served before me on 29 October 2020, I was informed by counsel representing the applicant that her instruction is only to seek payment of costs for the application, thus withdrawing the main relief that the first respondent should restore possession of the motor vehicle placed under attachment; and that the writ of execution, attachment and removal of the vehicle by the Sheriff be declared unlawful. In essence such an instruction rendered the application brutum flumes. For a strange reason the applicant failed to tender the payment of costs.

[2] The first respondent agreed to the opposed withdrawal of the application but on condition that the applicant pays the costs. Therefore, the issue for decision in this matter is who between the parties should shoulder the burden of paying the costs of the application.

[3] On 03 February 2017 the applicant instituted action proceedings against the first respondent for the payment of damages relating to the supply of water and sanitation services. A notice to defend the action that was filed by the first respondent provoked an application for summary judgment. However, soon thereafter, the applicant withdrew the application for summary judgment and tendered to pay the wasted costs. Pursuant thereto the first respondent caused a bill of costs to be taxed against the applicant in the sum of R32 147,53. Aggrieved by that allocatur the applicant filed a notice of review against the allocatur. In turn, the first respondent launched an application in terms of Rule 30 of the Uniform Rules of the High Court seeking to declare the notice of review an irregular step. The applicant opposed that application. When that application served before the uncontested opposed Court for confirmation it was removed from the roll on applicant’s request against a tender to pay the costs. A bill of costs for the removal of the Rule 30 application was later on taxed in the sum of R14 303,83.

[4] To enforce payment of the taxed costs as aforesaid, on 11 June 2019 the first respondent issued writs and referred the same to the Sheriff to execute against the applicant. The same writs were sent to the applicant by email. On 12 June 2019 the applicant paid only R14 525,33. The payment of R32 147,53 was paid on 17 July 2019 whereafter the first respondent instructed the Sheriff not to execute the second writ. The papers reveal that between those payments the Sheriff had already placed under attachment and removed from the possession of the applicant a motor vehicle, albeit being the property of Avis-Rent-A-Car. The founding affidavit show that the present application was only launched on 24 July 2019 on urgency basis and without notification to the first respondent.

[5] In this application, the legal basis for a costs order sought against the first respondent is not so clearly articulated, both in the papers and arguments. Counsel for the applicant submitted that the issuing of the writs of execution together with the attachment and removal of the vehicle by the Sheriff were invalid by reason that the writs were not served upon the executive authority, accounting officer and the treasury of the applicant as is contemplated in s 3 (4) of the State Liability Act, 20 of 1957. On the other hand, it was submitted on behalf of the first respondent that it is infact the applicant who should be mulcted with costs because by settling the taxed bills it acquiesced to the validity of those writs with the result that it is no longer open to it to challenge the validity thereof in a court of law.

[6] I have previously dealt with the legal principles that apply in a case such as the present. That was, inter alia, in Intsika Yethu Municipality & Ano v Mvo and 2 Others, Case No: 2546/2017 dated 11 September 2018. I quote liberally the principles stated therein as follows:

“[5] The case of Germishuys v Douglas Besproeiingsraad 1973 (3) SA 299 (NC) is the authority for the legal proposition that the litigant who withdraws an application (or action) is in the same position as an unsuccessful litigant. Therefore the question arising is whether the first respondent should be deprived of costs that are ordinarily due to him consequent upon the first applicant’s decision not to pursue confirmation of the relief that was granted to it on interim basis on 9 June 2017.

[6] If the Germishuys case is not a proper route to take, there is another way of approaching the issue of costs in this matter. It is that since the substantive issues of the application were not argued the court may nevertheless decide the issue of costs in the manner as stated in Fripp v Gibbon & Co 1913 AD 354 at 363 that:

“…the law contemplates that [the court] he should take into consideration the circumstances of each case, carefully weighing the various issues in the case, the conduct of the parties and any other circumstance which may have a bearing upon the question of costs, and then make such order as to costs as would be fair and just between the parties. And if he [the court] does this, and brings his unbiased judgment to bear upon the matter and does not act capriciously or upon any wrong principle, I know of no right on the part of a court of appeal to interfere with the honest exercise of his [the court’s] discretion.”

[7] It is generally accepted that a claim for costs cannot stand alone. It involves a decision on the merits – Cats v Cats 1959 (4) SA 375 (C) at 379 G-H; but does not always imply a decision on the merits – Erasmus v Grunow En ʼn Ander 1980 (2) SA 793 (O) at 798 G-H.”

[7] All that bedevils the applicant’s application for costs is that its conduct is akin to harassing the first respondent unreasonably. The taxation of the bills of costs took place on 04 September 2018 and 15 May 2019 respectively. The taxed costs became due and payable as on those dates. The applicant was legally represented on both occasions. Despite knowledge of the taxed bills he failed to effect payments due to the first respondent. The issuing of the writs is a legal step that was available to the first respondent which upon taking ensured the executability of the

courts’ decision on costs. The attack against the service of the writs does not impact the validity of the writs, hence the irrelevance of the validity argument in my view. Even if the validity of the writs was impugned the fact of the matter is that the steps taken by first respondent to recover the debts that were overdue and payable were good in law.

[8] In sum, the order has to be made in the following terms:

The applicant to pay the costs of the application.

_______________________________________________

Z. M. NHLANGULELA

DEPUTY JUDGE PRESIDENT OF THE HIGH COURT

MTHATHA

Counsel for the applicant : Adv. B. Xintolo

Instructed by

: A.A. Solwandle Attorneys

c/o Mgweshe Ngqeleni Inc

MTHATHA.

Attorney for the first respondent : Mr H. Zilwa

: c/o Zilwa Attorneys