Njomane v Executive Mayor King Sabata Dalidyebo Municipality and Another (24426A/2013) [2014] ZAECMHC 41 (14 November 2014)

IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE DIVISION-MTHATHA)

CASE NO: 2426A/2013

Heard on: 13 November 2014

Delivered on: 14 November 2014

In the matter between:

JABU BRIAN V NJOMANE

Applicant

and

EXECUTIVE MAYOR KING SABATA DALINDYEBO

MUNICIPALITY

First Respondent

MUNICIPALITY MANAGER OF KING SABATA

DALINDYEBO MUNICIPALITY

Second Respondent

JUDGMENT

BROOKS AJ:

[1] The applicant has approached this court on motion proceedings. Initially, the notice of motion sought a variation of an order of this court issued on 21 November 2013, alternatively a directive that the respondents pay to the applicant the sum of R2 364 309.46. In argument, the applicant elected to proceed for the order directing payment. This relief is also premised on the order issued on 21 November 2013. The applicant also sought an order directing the respondents to pay the costs of the application.

[2] The application has been opposed. The respondent have filed a comprehensive answering affidavit in which they indicate unequivocally that they seek the dismissal of the application, the rescission of the order of this court issued on 21 November 2013 and an order directing the applicant to pay the costs of the application on the scale as between attorney and own client and to include the costs of two counsel.

[3] The order of court issued on 21 November 2013 was issued pursuant to the launch by the applicant on 1 October 2013 of an application under case number 2426/2013 in which the applicant requested that an extra curial agreement which he had concluded with the King Sabata Dalindyebo Local Municipality on 22 May 2013 be made an order of court.

[4] It is common cause that the application issued on 1 October 2013 was served by the sheriff on a person described in the return of service as Miss M Mgoqi, a receptionist at the office of the second respondent. Notwithstanding that service, no notice to oppose the application was filed on behalf of the respondents. Accordingly, there was no appearance on behalf of the respondents when the applicant moved for his order on 21 November 2013. The order was apparently served on one Nomvuyiiso Majali, a receptionist at King Sabata Dalindyebo Local Municipality, on 10 December 2013.

[5] It is apposite at this point to record the content of the order of court issued on 21 November 2013:

“1. The agreement of 22 May 2013 entered into between the representative of the King Sabata Dalindyebo Local Municipality and the applicant is nearby declared as valid and binding as against the respondents. (sic)

2. The respondents are ordered to pay all outstanding amounts payable to the applicant and the agreement within 10 days of this order being served upon them. (sic)

3. The respondents shall pay the costs of this application jointly and severally the one paying the other to be absolved.”

[6] It is also apposite to record at this point that there exists a significant recent history of litigation between the applicant and the respondents. The applicant launched an application against the respondents in this court on 26 August 2011 under case number 2060/2011. The application was concerned with the applicant’s pursuit of an appointment to the position of acting municipal manager with King Sabata Dalindyebo Local Municipality pending a permanent appointment to that position. The application was opposed. On 3 November 2011 an order was issued reflecting an agreement between the parties that the proceedings be removed from the roll and that the costs be reserved for later decision. The reason that the matter did not proceed on that day is that the presiding judge wished to recuse himself.

[7] Whilst the extra curial agreement which formed the basis of the application launched by the applicant on 1 October 2013, and the order issued therein on 21 November 2013, make no specific reference to case number 2060/2011, it appears from the papers to be common cause between the parties that the effect of the extra curial agreement was to dispose of the issues raised in the opposed application which had proceeded under case number 2060/2011.

[8] In opposing the present application, the respondents complain that they have been prejudiced by the applicant’s failure to move under case number 2060/2011 for the order which he obtained on 21 November 2013. In deposing to the answering affidavit, the acting municipal manager Soldati states that had the initial case number 2060/2011 been maintained, this would have alerted the respondents to the nature and import of the application and of its connection to the earlier application which they had opposed and then had agreed to remove from the roll with the reservation of costs. Had the respondents been so alerted, they would have opposed the application which was launched on 1 October 2013.

[9] In the answering affidavit, the respondents indicate what would have been the basis of that opposition. It is claimed that in purporting to act on behalf of King Sabata Dalindyebo Local Municipality and reaching agreement on 22 May 2013, the then acting municipal manager, Mnqanqeni, lacked the authority necessary to bind the municipality. Had this been expressed on behalf of the respondents, the integrity of their opposition to the application brought under case number 2060/2011 would have been preserved and the order issued on 21 November 2013 would not have been issued. As things stand presently, the integrity of the respondents’ opposition to the application brought under case number 2060/2011 has been compromised by the issue of the order on 21 November 2013.

[10] The ventilation of this opposition also takes the respondents into the realm of their application to rescind the order granted on 21 November 2013. Whilst Mr Smith, who appeared on behalf of the applicant, criticised the respondents for their failure to file a notice of motion together with their answering affidavit, in order to spearhead their application for rescission, it is plain from the terms of the answering affidavit that such an application for rescission is intended to serve before this court as a counter application. Indeed, the approach adopted by the applicant in his replying affidavit and the argument advanced on his behalf make it clear that the applicant understood the respondents’ intentions. No prejudice accrues to the applicant by virtue of the respondents’ failure to include a formal notice of motion in their answering papers. In my view, to ignore the application for rescission on this ground alone would be emphasising form over substance in a manner which pays no heed to the clearly expressed intentions of the parties and which would operate against serving the interests of justice in this matter. In light of the long history of litigation between the parties, it is in the interests of justice that consideration should be given to the application for rescission as it manifests itself in these application papers, rather than to require that a fresh application be brought. I intend to do so accordingly.

[11] In support of the application for rescission of the order issued on 21 November 2013, the respondents are obliged to explain fully the circumstances in which they failed to oppose the application brought on 1 October 2013.[1] According to the answering affidavit, the respondents only became aware of the existence of the court order when the present

application papers were served on them on 2 April 2014. The answering affidavit identifies that the office at which the application launched on 1 October 2013 was served was in fact the office of Mnqanqeni. The resultant order issued on 21 November 2013 was also served at his office. Lacking authority as he did, Mnqanqeni did not advise the respondents or their attorney of record of the subsequent application proceedings. Consequently, for this

reason too, no notice of opposition was filed.

[12] The question which arises is whether the respondents have given a reasonable and satisfactory explanation for their default which demonstrates that their failure to file a notice of opposition was not caused by wilful or gross negligence on their part.[2] In my view, in the peculiar circumstances of this matter where there is a history of litigation and competition for appointment to the position of acting municipal manager, the prospect of vested interests leading to a failure on the part of those who were notified of the launch and outcome of the proceedings commenced under case number 2426/2013 to bring those events to the attention of the respondents cannot be ruled out. The application’s choice to proceed under a new case number rather than to continue to utilise the same case number with which the extra curial agreement would be more readily associated was also of little assistance in ensuring that the proceedings came to the notice of the respondents. Accordingly, I am of the view that the respondents have given an adequate explanation for their failure to file a notice of opposition.

[13] Consideration must also be given to the nature of the opposition or defence which the respondents claim they wish to advance to meet the applicant’s case. I am of the view that the demonstration of a lack of authority on the part of Mnqanqeni to conclude an extra curial settlement agreement on behalf of the municipality would constitute a valid defence. This is raised

pertinently by the respondents in the answering affidavit. In my view, it is not an allegation which amounts to a bald or

uncreditworthy denial, or which raises a fictitious dispute of fact, or which is palpably implausible, far-fetched or clearly untenable,

justifying the rejection of the allegation merely on the papers.[3] It is not displaced by the applicant’s allegations in his replying affidavit, which annexes a copy of a minute extracted from a special council meeting of the King Sabata Dalindyebo Municipal Council held on 5 July 2007 which gives certain powers to the (unnamed) municipal manager. Whilst such a resolution may constitute sufficient prima facie proof of authority in the absence of any specific challenge thereto, the allegations of the present acting municipal manager in the answering affidavit make such a specific challenge and cannot be ignored. Clearly, the authority of Mnqanqeni to settle the proceedings under case number 2060/11 is in dispute. In my view, the respondents demonstrate therein a proper defence which is not raised simply to delay the applicant’s claim.

[14] In the light of the conclusion at which I have arrived in the consideration of the respondents’ opposition to the application and the application for rescission, it is not necessary to canvass all the issues which emerge from the application papers in respect of the applicant’s entitlement to relief. This includes an application introduced at the hearing of this matter by Mr Kincaid, who appeared on behalf of the respondents, which sought to strike out certain material covered by the applicant’s founding papers. In doing so, Mr Kincaid relied upon the provisions of rule 6 (15) of the Uniform Rules of Court. It is sufficient to record that the applicant seeks final relief in motion proceedings. These proceedings are about the resolution

of legal issues based on common cause facts. They cannot be used to determine factual issues because they are not designed to determine probabilities.[4] The applicant would only be entitled to final relief if the facts averred in the applicant’s affidavits, which have been admitted by the respondents, together with the facts alleged by the latter, justify an order for final relief.[5] Plainly, on an application of this principle to the affidavits which have been filed in this matter, the applicant cannot succeed in obtaining final relief. The applicant relies on an agreement to which a challenge of invalidity has been raised. No common cause facts support the grant of relief in favour of the applicant.

[15] Ordinarily, costs follow the result. In seeking the dismissal of the application, the respondents seek a punitive costs order against the applicant. Such an order would serve as a mark of the disapproval of this court as to the manner in which the litigation had been conducted by the unsuccessful litigant. In this matter, the respondents advert to a failure on the part of the applicant to disclose fully the history of the litigation between them. They also submit that the applicant failed to ensure that the initial proceedings brought under case number 2426/2013 were brought to the respondents’ attention. In my view, whilst the applicant can be criticised for adding to the confusion by not continuing to utilise the case number 2060/2011, this in itself is insufficient to warrant a punitive costs order. Moreover, whilst the founding affidavit would have been improved by the inclusion of a fuller picture, the main elements of the history of the litigation between the parties do emerge through the exchange of affidavits and the cross reference therein to case number 2060/2011. Nothing emerges from the present application, in my view, which warrants a punitive costs order.

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

1. The application is dismissed;

2. The order of this court issued on 21 November 2013 under case number 2426/2013 is hereby rescinded;

3. The applicant is directed to pay the respondents’ costs on an opposed basis on the scale as between party and party, such costs to include the costs occasioned by the postponement of the application on 7 November 2014.

_______________________

R W N BROOKS

JUDGE OF THE HIGH COURT (ACTING)

Appearances:

Applicant:

Adv Smith instructed by

S Booi & Sons Attorneys

Office No 3 Clublink Building

No 28 Madeira Street

MTHATHA

Respondents: Adv Kincaid instructed by

W T Mnqandi & Associates

510-512 ABSA Building

60 Sutherland Street

[1] Grant v Plumbers (Pty) Ltd 1949 (2) SA 470 (O) 476-477; De Witts Auto Body Repairs (Pty) Ltd v Fedgen Insurance Co Ltd 1994 (4) SA 705 (E) 708H-709D; Colyn v Tiger Food Industries Ltd t/a Meadow Feed Mills (Cape) 2003 (6) SA 1 (SCA) at 9F

[2] Note 1

[3] National Director of Public Prosecutions v Zuma [2009] ZASCA 1; 2009 (2) SA 277 (SCA) para [26]

[4] Note 3

[5] Plascon-Evans Paints Ltd v van Riebeeck Paints (Pty) Ltd [1984] ZASCA 51; 1984 (3) SA 623 (A) 634-635; Fakie NO v CCII Systems (Pty) Ltd [2006] ZASCA 52; 2006 (4) SA 326 (SCA) para [55]; Thint (Pty) Ltd v National Director of Public Prosecutions & Others 2009 (1) SA 1 (CC) (2008 (2) SACR 421; [2008] ZACC 13) paras [8] to [10].