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FORM A

FILING SHEET FOR SOUTH EASTERN CAPE LOCAL DIVISION JUDGMENT

PARTIES:

EB STEAM UTILITY COMPANY PERSERVERANCE (PTY) LTD AND OTHERS v NELSON MANDELA BAY MUNICIPALITY

• Case Number: 788/08

• High Court: South Eastern Cape local Division

• DATE HEARD:

DATE DELIVERED: 24 April 2008

JUDGE(S): LIEBENBERG, J:

LEGAL REPRESENTATIVES –

Appearances:

• For the Appellants(s):

• for the Respondent(s):

Instructing attorneys:

• Appellant(s)

• Respondent(s):

CASE INFORMATION -

• Nature of proceedings :

• Topic:

• Key Words:

IN THE HIGH COURT OF SOUTH AFRICA

(SOUTH EASTERN CAPE LOCAL DIVISION)

CASE NO: 788/08

DATE DELIVERED:

IN THE MATTER BETWEEN:

EB STEAM UTILITY COMPANY 1^ST RESPONDENT

PERSERVERANCE (PTY) LTD

EB STEAM UTILITY COMPANY ALGOA 2^ND RESPONDENT

(PTY) LTD

EB STEAM UTILITY COMPANY 3^RD RESPONDENT

HARROWER (PTY) LTD

EB STEAM UTILITY COMPANY 4^TH RESPONDENT

FAIRCLOUGH (PTY) LTD

EB STEAM UTILITY COMPANY 5^TH RESPONDENT

BRIGHTON (PTY) LTD

EB STEAM UTILITY COMPANY 6^TH RESPONDENT

SAVOTEX (PTY) LTD

EB STEAM UTILITY COMPANY 7^TH RESPONDENT

CONGELLA (PTY) LTD

AND

NELSON MANDELA BAY MUNICIPALITY 1^ST RESPONDENT

ESKOM HOLDINGS LIMITED 2^ND RESPONDENT

JUDGMENT

LIEBENBERG, J:

[1] On 24^th April 2008 I ordered the applicant to pay the costs of the hearing on that day, indicating that my reasons will follow. I now provide the reasons.

[2] On the 24^th April 2008, this application came before me. The matter was initially brought before Nepgen J as a matter of urgency. He, by agreement, postponed the matter to the 24^th April 2008 and afforded the applicant certain interim relief.

[3] Since then the matter followed the trajectory of a missile gone wrong. Senior counsel who appeared for both parties when the application was initially brought before Nepgen J disappeared from the battle field and were replaced by counsel now appearing, who both took up arms at short notice.

[4] The initial shot fired by the applicant, which created the state of war, was aimed at an order which included a mandamus requiring the first respondent to restore the electricity supply to the six applicants and for a final interdicts restraining the first respondent from interrupting the supply of electricity to the applicant’s under certain circumstances and further restraining them from implementing certain schedules for the interruption of electricity supplies to the applicants.

[5] Prior to the matter coming before Nepgen J the 1^st respondent set up its lines of defence by filing its answering affidavit.

[6] When the matter came before Nepgen J a truce was declared by means of an agreement to postpone the matter to the 24^th April 2008 with certain interim relief to the applicants by means of an undertaking by the 1^st respondent as to the periods, times and manner of interruption of the applicants’ electricity supply. This is the agreement which was made an order of court by Nepgen J. The order further included an order requiring the applicants to file replying papers, if any, by 4:00 pm on 15 April 2008.

[7] With the filing of the replying affidavit and later the filing of their heads of argument, the applicants arrived late on the battle field. They then attempted to regain the territory lost as a result, by bringing an application for condonation, which was moved on 24 April 2008. They achieved their goal unopposed.

[8] The truce achieved by the order by Nepgen J, however, came to an abrupt end with the filing of their replying papers by the applicants. The first respondent immediately cried foul on the basis that the applicants introduced a new weapon in the form of a reliance on the Constitution and The Promotion of Administrative Justice Act, of which the 1^st respondent was not properly forwarned in the founding papers of the applicants. As a result, so the 1^st respondent claimed, it was not in a position to set up proper defences against this new threat. Not only that, the applicants further attempted to position this new weapon more firmly and more strategically against the 1^st respondent by means of the introduction of a supplementary affidavit, which it sought leave to have admitted.

[9] All of this resulted in skirmishes appearing on the edge of the battle field. The first was an application to have the new weapon neutralised by striking off certain allegations in the replying affidavit. The second concerned the issue whether the supplementary affidavit should be allowed. The third concerned the question which of the first two should first be dealt with. The third occurred first and was won by the 1^st respondent. I held that 1^st respondent’s counsel should be heard first. He, in effect, combined both the first and second skirmishes into one during his argument. When counsel for the applicants argued, he conceded that, in fact, the applicants are relying on two lines of attack. The first being contractual and the second based on unfair administrative action on the part of the 1^st respondent. He also conceded that, in fact, only one missile was fired in their papers by the applicants and that it was impossible, therefore, to strike both targets. He had to fire a second missile by means of an application for the review of the administrative action taken by the first respondent to cut off the electricity supply to the applicants.

[10] At this stage the battle lines became obscured. Counsel for the applicants attempted to persuade me that the only relief now sought by the applicants in terms of the papers, is interim relief. He attempted to bring this home under prayer 3 of the notice of motion. It is, however, obvious that the ammunition counsel attempted to use here do not fit the weapon. Prayer 3 of the notice of motion is a prayer for interim relief pending the return day should a rule nisi have been issued. No rule nisi was issued because the 1^st respondent filed answering papers and the 2^nd respondent did not oppose as no relief was sought against it. It is abundantly clear that this attempt by counsel for the applicants was futile.

[11] Further debate between myself and counsel for the applicants lead to counsel requesting a cessation of hostilities by means of an adjournment to enable the parties to enter into discussion.

[12] When court resumed, I was presented with an agreement between the parties which only laid to rest, as far as the present battle is concerned, the attack based on unfair administrative action on the part of the first respondents. Battle in respect of the contractual cause of action was still intended. What the parties agreed on, in essence, was that the applicants would institute proceedings to review this administrative action by the 1^st respondent but that the contractual matter would still be argued before me. Further debate between myself and counsel for the applicants raised doubt as to whether the two war zones were far enough removed from each other so that the fighting on the one will not necessarily spill over onto the other and, therefore, raising doubt as to the practical sense in proceeding with the arguments on the contractual issues instead of dealing with them when the review proceedings are dealt with. This resulted in a further cessation of hostilities by means of a further adjournment.

[13] When court resumed after this adjournment, I was informed by counsel for the 1^st respondent that, in his words, “a dangerous prevailing of common sense occurred”. The result was that an order agreed to by the parties was made. The effect of this order is that nothing happened on the battle field on the 24^th April 2008 save for the skirmishes on the edges, all of which were lost by the applicants.

[14] I am satisfied that the lack of effective action on the 24^th April 2008 must be laid squarely before the trenches of the applicants.

[15] Counsel for the first respondent asked for costs of the hearing on the 24^th April 2008 and for such costs to include the costs of two counsel. Counsel for the applicants argued that costs should be in the cause or should stand over for decision by the court eventually dealing with the matter. In my view I am in the best position to deal with the question of the costs of the hearing on 24^th April 2008 and I am further of the view that the circumstances of this matter demand that an immediate order be made.

[16] There was no issue between the parties concerning the appropriateness of the costs order including the costs of two counsel. In my view such an order is appropriate in this matter.

[17] For the above reasons I made the costs order set out above.

[18] The above reasons have to an extent been set on the scene of a battle field. This was prompted by the unnecessarily acrimonious and pugnacious accusations and statements made by the parties in the papers. The parties will be well advised to remove the further proceedings from the war zone to the calm atmosphere of the court and themselves to adapt to that atmosphere,

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H.J. LIEBENBERG

JUDGE OF THE HIGH COURT

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