Thipe and Another v City of Tshwane Metropolitan Municipality and Others (254/2019) [2020] ZASCA 131 (16 October 2020)

Thipe and Another v City of Tshwane Metropolitan Municipality and Others (254/2019) [2020] ZASCA 131 (16 October 2020)

The Supreme Court of Appeal held that the high court erred in dismissing the application after upholding the exception. The proper procedure is to dispose of the defective pleading, not the action, and to grant leave to amend unless there is a good reason not to do so. No such reason was present. The pleadings did not sufficiently establish the jurisdictional requirements for contempt against the joined officials, but the appellants should have been given an opportunity to amend. The matter is remitted to the high court for further conduct, and costs of both the exception hearing and the appeal are to be costs in the cause.

Citation
[2020] ZASCA 131
Parties
Appellant: Anna Mmakodi Thipe; Appellant: 286 Denneboon Traders; Respondent: City of Tshwane Metropolitan Municipality; Respondent: Isibonelo Property Services (Pty) Ltd; Respondent: The Municipal Manager: City of Tshwane Metropolitan Municipality; Respondent: The Mayor: City of Tshwane; Respondent: The CEO of Isibonelo Property Services (Pty) Ltd; Respondent: Moeketsi Mosola; Respondent: Solly Msimanga; Respondent: Shadrack Mthethwa
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
16 October 2020
Case Number
254/2019
Procedural Posture
Civil Appeal / Appeal From Gauteng Division of the High Court, Pretoria
Outcome
Appeal upheld; high court order set aside; matter remitted for further conduct.
Judges
Ponnan, Zondi, Molemela, Weiner, Sutherland
Legal Topics
Contempt of Court, Joinder of Parties, Exception Procedure, Wilful Non Compliance, Constitutional Rights
Civil Procedure Constitutional Law Contempt of Court Joinder of Parties Exception Procedure Wilful Non Compliance Constitutional Rights

Case Brief

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Parties

Anna Mmakodi Thipe

Appellant

286 Denneboon Traders

Appellant

City of Tshwane Metropolitan Municipality

Respondent

Isibonelo Property Services (Pty) Ltd

Respondent

The Municipal Manager: City of Tshwane Metropolitan Municipality

Respondent

The Mayor: City of Tshwane

Respondent

The CEO of Isibonelo Property Services (Pty) Ltd

Respondent

Moeketsi Mosola

Respondent

Solly Msimanga

Respondent

Shadrack Mthethwa

Respondent

Procedural Posture

Civil Appeal / Appeal From Gauteng Division of the High Court, Pretoria

Legal Issues

  1. 1 Whether the high court erred in upholding the exception and dismissing the application for contempt against the third to eighth respondents.
  2. 2 Whether the pleadings disclosed sufficient averments to sustain a contempt order against the joined respondents.
  3. 3 Whether the appellants should have been granted leave to amend their pleadings after the exception was upheld.

Ratio Decidendi

The Supreme Court of Appeal held that the high court erred in dismissing the application after upholding the exception. The proper procedure is to dispose of the defective pleading, not the action, and to grant leave to amend unless there is a good reason not to do so. No such reason was present. The pleadings did not sufficiently establish the jurisdictional requirements for contempt against the joined officials, but the appellants should have been given an opportunity to amend. The matter is remitted to the high court for further conduct, and costs of both the exception hearing and the appeal are to be costs in the cause.

Court Disposition

Appeal upheld; high court order set aside; matter remitted for further conduct.

Orders

  • The appeal succeeds.
  • The order of the high court upholding the exception and dismissing the claim against the third to eighth respondents is set aside.