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SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

 

IN THE HIGH COURT OF SOUTH AFRICA

NORTH WEST DIVISION – MAHIKENG

 

Case no: 1396/22

Reportable:                                YES/ NO

Circulate to Judges:                                  YES/ NO

Circulate to Magistrates:                    YES/ NO

Circulate to Regional Magistrates:   YES/ NO

 

In the matter between:

 

DITSOBOTLA LOCAL MUNICIPALITY                    Applicant

 

and

 

CAREWELL HOLDINGS 5 (PTY) LTD                      First Respondent

 

BRANCH MANAGER, ABSA BANK

LICHTENBURG BRANCH                                        Second Respondent

 

In Re:

   

    CAREWELL HOLDINGS 5 (PTY) LTD                  Plaintiff 

 

and

 

DITSOBOTLA LOCAL MUNICIPALITY                   First Defendant

 

MUNICIPAL MANAGER:

DITSOBOTLA LOCAL MUNICIPALITY                   Second Defendant

 

REASONS FOR ORDER

 REDDY AJ

 

Introduction

 

[1]        This urgent application brought on motion was founded on relief sought in two Parts. Part A was for the stay of execution of writs issued by the Registrar of this Court and Part B for rescission of default judgment granted by Khan J on 8 June 2023.

 

[2]     The urgent application first served before Dewrance AJ on 27 July 2023 and subsequently before Reid J on 3 August 2023, seeking similar relief (save for Part B), before serving before me on 17 August 2023 with the relief sought being amended in line with the order handed down by Reid J. For purposes of this judgment, it suffices to note the orders of 27 July 2023 and 3 August 2023. Dewrance AJ ordered that the matter be struck off the roll due to non-appearance of the applicant and a defective Notice of Motion, with costs to be costs on an attorney and client scale. Reid J subsequently on the merits of the application, dismissed the second application of 3 August 2023 and further granted the applicant an opportunity to rectify the first application, which was struck from the roll by Dewrance AJ within ten (10) days of the order. 

 

[3]        The present application before me includes the issue of two points in limine raised by the first respondent before Reid J, of which only the second point in limine was addressed. The points in limine were that, in terms of:

 

(i)           Rule 7 of the Uniform Rules of Court the deponent to the founding affidavit lacked the authority in terms of the Rule 7 to institute the proceedings in the absence of a Municipal Council resolution authorising him to do so; and

 

(ii)         Rule 30, that the applicant had conducted an irregular step in the proceedings, on the basis that it had instituted duplicate proceedings after the initial urgent application was struck from the roll with a punitive cost order.

 

[4]   As will be demonstrated infra, the first point in limine is in fact dispositive of the application.

 

The Parties

 

[5]        An introduction to the litigants would be apposite to provide context to the judgment and facilitate ease of reading. The applicant is the Ditsobotla Local Municipality (‘the Municipality’) established in terms of the Local Government Municipality Structures Act 117 of 1998 situated at Civic Centre, corner of Nelson Mandela Drive and Rylaan, Lichtenburg, North West Province.

 

[6]        The first respondent is Carewell Holdings 5 (Pty) Ltd (‘Carewell Holdings’), an entity registered in accordance with the company laws of the Republic of South Africa, with its core business being the rendering of security services, with its place of business situated within the North West Province.

 

[7]        The second respondent is the Branch Manager, Absa Bank, Lichtenburg (‘ABSA’), a banking institution which is the custodian of various banking accounts of the Municipality, where the amounts alleged in the Notice of Motion have been attached. No specific relief is sought against ABSA which is merely cited as an interested party. ABSA has not entered the fray.

 

Background

 

[8]        On or about 6 July 2021, the former Municipal Manager of the Municipality, Mr Tsietsi, appointed Carewell Holdings to render security services at specifically identified sites of the Municipality for a period of two (2) years. The Service Level Agreement (“the SLA”) covered a contractual period commencing on 1 August 2021 to conclude on 31 August 2023.

 

[9]        The Municipality contends that certain corrupt and fraudulent practices on the part of Carewell Holdings were identified some five (5) months into the SLA. A notice of termination of the appointment of the first respondent was consequently sent to Carewell Holdings on or about 28 December 2021. The termination of the SLA with Carewell Holdings is said to be premised on the unlawful conclusion of the SLA, as a result of the alleged contravention of public procurement processes which were not properly followed, in that was appointed as a successful bidder before the evaluation and adjudication of bids could be finalized.

 

[10]      Carewell Holdings in reaction to the notice of termination of the SLA sought and was granted an interdict in this Court, interdicting the Municipality from terminating its services. During June 2022, the Municipality and Carewell Holdings mutually terminated the SLA. Pursuant to the termination of the SLA, Carewell Holdings issued summons against the Municipality in which it claimed payment for security services allegedly rendered from October 2021 to May 2022 in the sum of R14 008 650.00.  The Municipality was ipso facto barred on 17 February 2023.

 

[11]      On 8 June 2023, Khan AJ entered default judgment in favour of Carewell Holdings in the sum of R14 008 650.00, together with interest at 7% a temporae morae from the date of summons to date of payment. On 06 and 19 July 2023 writs of execution were issued by the Registrar of this Court authorising attachment of the bank accounts of the Municipality, in execution of the judgment for the amount granted in the order of court of 8 June 2023.

 

The present relief sought in this Court

 

[12]   In an amended Notice of Motion before this Court, the following relief was sought:

 

“PART A: STAY OF WRITS OF EXECUTION

 

1.    Directing that the forms and service provided for in terms of the Uniform Rules be dispensed with and that this application be head on a semi-urgent basis as provided for in terms of rule 6(12)(a) of the Uniform Rules of Court.

 

2.    That pending the final determination of the rescission application instituted in terms of PART B herein below, an order be granted in the following terms:

 

2.1.1 That the writ of execution issued by the Registrar of the above Honourable Court on 6 July 2023 attaching in execution an amount of R15 042 987-30 held under the name of DITSOBOTLA LOCAL MUNICIPALITY at ABSA BANK LICHTENBURG BRANCH under banking account number 0[...] be stayed with immediate effect.

 

2.1.2 The writ of execution issued by the Registrar of the above Honourable Court on 19 July 2023 attaching in execution an amount of R15 192 476-88 held under the name of DITSOBOTLA LOCAL MUNICIPALITY at ABSA BANK LICHTENBURG BRANCH under banking account number 3[...] be stayed with immediate effect.

 

2.1.3 The writ of execution issued by the Registrar of the above Honourable Court on 19 July 2023 attaching in execution an amount of R15 192 476-88 held under the name of DITSOBOTLA LOCAL MUNICIPALITY at ABSA BANK, LICHTENBURG BRANCH under the banking account number 4[...] be stayed with immediate effect.

 

2.1.4 The writ of execution issued by the Registrar of the above Honourable Court on 19 July 2023 attaching in execution an amount of R15 192 476-88 held under the name of DITSOBOTLA LOCAL MUNICIPALITY at ABSA BANK LICHTENBURG BRANCH under banking account number 4[...] be stayed with immediate effect.

 

2.1.5 The writ of execution issued by the Registrar of the above Honourable Court on 19 July 2023 attaching in execution an amount of R15 192 476-88 held under the name of DITSOBOTLA LOCAL MUNICIPALITY at ABSA BANK LICHTENBURG BRANCH under banking account number 4[...] 1[...] be stayed with immediate effect.

 

3.    That costs shall stand over for the determination along with Part B unless any of the respondents opposes, in which event such respondent be ordered to be liable for the applicant’s costs, jointly and severally with the other respondent who opposes, the one paying the other respondent who opposes, the other to be absolved.

 

4.    Further and/or alternative relief.

 

     PART B: RECISSION OF DEFAULT JUDGMENT

     …”

 

[13]      This application, as established above, is the third attempt by the Municipality to secure the relief it sought in Part A of its now amended Notice of Motion. Carewell Holdings filed a Notice in terms of Rule 30 read with Rule 30A of the Uniform Rules of Court (“the Rules”) on the attorneys of record of the Municipality on 16 August 2023. The Rule 30 notice complaint is predicated on a Rule 7 Notice dated 26 July 2023. A second Rule 7 Notice mirroring that of 26 July 2023 was served on the Municipality on 16 August 2023.

 

 [14]     The perceived irregular steps is set as follows:

 

“BE PLEASED TO TAKE NOTICE that the Applicant (DITSOBOTLA LOCAL MUNCIPALITY) has taken the irregular steps consisting of the following:

 

1.     On 11 August 2023 at 13h31, the Applicant, through MODIBOA ATTORNEYS INC, filed an” Amended Notice of Motion”, accompanied by “Supplementary Affidavit”, on the First Respondents attorneys indicating that the Applicant intends to approach the above Honourable Court on 17 AUGUST 2023 at 10h00, for urgent relief.

 

2.     The aforesaid amended Notice of Motion and supplementary affidavit constitutes a nullity and an irregular step, due to the following reasons:

 

2.1 On 26 JULY 2023, the First Respondent challenged the Applicant’s   attorneys authority to act in casu by way of Rule 7(1) and requested inter alia the following documentation.

 

2.1.1. A Counsel Resolution by the Applicant’s Municipal Council authorising the Applicant, as well as MR SEREAME SOLLY NNETE, to institute the current legal proceedings (urgent application) against inter alia the First Respondent.

 

2.1.2 “A power of attorney by the Applicant’s Municipal Council appointing MODIBOA ATTORNEYS INC. as the Applicant’s attorney in this application.”

 

2.1.3 Proof that MODIBOA ATTORNEYS INC had been properly appointed as a service provider by the Applicant in terms of the PROVISIONS OF SECTION 2177 OF THE CONSTITUTION, NATIONAL TREASURY REGULATIONS and THE SUPPLY CHAIN MANGEMENT POLICY of the Applicant. A copy of the Rule 7(1) notice dated 26 JULY 2023, is annexure “A”.

          

2.2 It is trite law that a Municipality can only litigate if the Municipal Council of such Municipality has authorised the litigation, by way of Council Resolution.

 

           2.3. No such Council Resolution exists, alternatively MODIBOA ATTORNEYS INC, failed since 26 JULY 2023 to provide same to the First Respondent, and the above Honourable Court. The Municipal Manager of the Municipality cannot appoint attorneys and authorise litigation in the absence of a Council Resolution. It is beyond the powers of a Municipal Manager as contained in section 54(A) OF THE MUNICIPAL SYSTEMS ACT.

 

2.4. The Applicant’s attorneys purported Power of Attorney dated 11 AUGUST 2023 is also null and void, as the alleged Municipal Manager acted beyond her statutory powers in proving same to MODIBOA ATTORNEYS INC.

 

2.5. The applicant further filed the amended Notice of Motion without complying to the rules pertaining to amendments as contained in RULE 28 of the Uniform Rules of Court, as the First Respondent received no prior notice of the intended amendment. Such amendment was unilaterally done by the Applicant, which is irregular.

 

2.6. The Applicant was further not allowed to file a “supplementary affidavit” without a substantive application seeking the consent of the above Honourable Court to admit same into evidence.

 

2.7. The amended Notice of Motion indicates that Applicant will accept service at 1[...] R[...] STREET, WILKOPPIES, KLERKSDORP, which is not in accordance with RULE 6(5)(b)(i), as this address is not within 15 kilometres from the Office of the Registrar.

 

2.8. The Registrar is not requested to enroll PART A of the application, in the amended Notice of Motion, which creates uncertainty to the First Respondent, as whether the matter is properly on the urgent roll.

 

2.9. The “Amended Notice of Motion” indicates that Applicant will accept notices and service of all process at 1[...] R[...] STREET, WILKOPPIES, KLERKSDORP which is not in accordance with RULE 6(5)(b)(i) as this address is not within 15 kilometres from the Office of the Registrar.

 

2.10. Rule 41A (2) of the Rules of Court states:

 

“(2)(a) in every new action or application proceeding, the Plaintiff or applicant shall, together with the summons or combined summons or notice of motion, serve on each defendants or respondents a notice indicating whether such plaintiff or applicant agrees or opposes referral of dispute to mediation.”

 

2.10.1.  The Applicant have not complied with the PROVISIONS OF RULE 41 (A) (2)(a), in that the Applicant have failed to serve on the Respondents a notice indicating whether they agree to or oppose referral of the dispute.”

 

The main submissions

 

[15]      Carewell Holdings asserts that the essence of the relief sought by the Municipality cannot be substantially opposed in the absence of a council resolution, conclusively establishing that the Municipal Manager was authorised to launch the present litigation. Carewell Holdings further asserts that the failure of the Municipality to afford it an opportunity to object to the filing of the amended Notice of Motion, is prejudicial to it. It also complains that the amended Notice of Motion in the form presented is ambiguous in defining the author of the founding affidavit, as it denotes that “…the supplementary affidavit of BRIDGET DUDUZILE DUBE together with the annexures thereto will be used in support of the application.” Finally, Carewell Holdings submits that it is incompetent for it to reply to the supplementary affidavit preceding its admission into evidence.

 

[16]     Mr Moretlana for the Municipality, contrary to practice, failed to file an updated set of written heads of argument. On being invited to do same, Mr Moretlana declined the invitation.

 

[17]  In opposing the point in limine challenge predicated on the authority of the Municipal Manager (the Rule 7(1) challenge), Mr Maretlana placed reliance on, inter alia, section 55(m) of the Local Government: Municipal Systems Act 32 of 2000 (‘the Systems Act’) which provides that:

 

            “55. Municipal managers –

           

           (1) As head of the administration the municipal manager of a municipality is, subject to the policy directions of the municipal council, responsible and accountable for

           …

           (m) the exercise of any powers and the performance of any duties delegated by the municipal council, or sub-delegated by other delegating authorities of the municipality, to the municipal manager in terms of the section 59;

           ...”

 

The Law

 

[18]      It is settled law, that the procedure to be followed by a party disputing the authority of a person to act on behalf of another party in litigation as in the present application is set out in Rule 7. See Eskom v Soweto City Council 1992 (2) SA 703 (W) at 705 E-706 C, Ganes and Another v Telecom Namibia Ltd 2004 (3) SA 615 (SCA) at 624 and ANC Umvoti Council Caucus v Umvoti Municipality 2010 (3) SA 31(KZP) paragraphs [13]- [29].

 

[19]      In North Global Properties (Pty) Ltd v Body Corporate of Sunrise Beach Scheme (2012) ZAKZNDHC 47 the following is said at paragraph [6] about the purpose of Rule 7:

 

“The purpose of the rule is, on the one hand, to avoid cluttering the pleadings unnecessarily with resolutions and powers of attorneys. On the other hand, it provides a safeguard to prevent a cited person from repudiating the process and denying his or her authority for issuing the process.”

 

[20] Rule 30(1) is applicable to applications, relevant to the peculiar circumstances of each case. The case law is replete with authorities re-affirming same. Rule 30 applies only to irregularities of form and not to matters of substance (Graham and another v Law Society, Northern Provinces, and Others 2016 (1) SA 279 (GP) at par [40]). In SA Metropolitan Lewensversekeringsmaatskappy Bpk v Louw NO 1981 (4) SA 329 (O) at 333H the object of Rule 30(1) was stated as follows:

 

“I have no doubt that Rule 30(1) was intended as a procedure whereby a hindrance to the future conducting of the litigation, whether it is created by a non-observance of what the Rules of Court intended or otherwise, is removed.”

 

[21]      Proof of prejudice is critical to success in an application in terms of Rule 30(1). See Afrisun Mpumalanga (Pty) Ltd v Kunene NO and Others 1999 (2) SA 599 (T) at 611C-F.

 

[22]      In terms of Rule 30(3), this Court is enjoined with very wide powers to make any order it deems fit. This discretion must however, be exercised judicially on a consideration of the circumstances and what is fair to both sides. This Court is entitled to overlook in proper cases, any irregularity which does not occasion any substantial prejudice to the other party. See Trans-African Insurance Co Ltd v Maluleka 1956 (2) SA 273 (A) at 276F-H.

 

Discussion

 

[23]      Acting Municipal Manager, as in the present application, can depose to an affidavit in support of an application. No authorisation is required for the Acting Municipal Manager to depose to an affidavit. What is, however, required is authorisation from the Municipal Council to institute legal proceedings. The golden thread that runs through the contentions of Carewell Holdingssince the genesis of this application on 27 July 2023, is the call for compliance with the Rule 7(1) notice. This is the crisp issue in this application predicated on the Rule 7(1) notice, which was not addressed in the urgent application before Reid J, which will be shown is dispositive of the application.

 

[24]    The following statement in FirstRand Bank Limited v Michael Gary Hazan and Another (unreported judgment under case number 2013/47366, Gauteng South High Court) at paragraph 26, succinctly explains the position:

 

‘In determining the question whether a person has been authorised to institute and prosecute motion proceedings, it is irrelevant whether such person was authorised to depose to the founding affidavit. The deponent to an affidavit in motion proceedings need not be authorised by the party concerned to depose to the affidavit. It is the institution of the proceedings and the prosecution thereof that must be authorised. The remedy of a respondent who wishes to challenge the authority of a person allegedly acting on behalf of the purported applicant is not to challenge the authority in the answering affidavit but instead to make use of Rule 7(1) of the Uniform Rules of Court. See Unlawful Occupiers, School Site v City of Johannesburg 2005 (4) SA 199 (SCA) para [14]-[16]; Eskom v Soweto City Council 1992 (2) SA 703 (W) at 705C-J; Ganes and Another v Telecom Namibia Ltd 2004 (3) SA 615 (SCA) para [18]-[19]; ANC Umvoti Council Caucus and Others v Umvoti Municipality 2010 (3) SA 31 (KZP) para [27]-[28] and FirstRand Bank Ltd v Fillis 2010 (6) SA 565 (ECP) para [12] - [13].

 

The respondents did not avail themselves of the procedure provided for in Rule 7(1), and it is thus not open to the respondents to challenge the authority of the deponent to FNB’s founding affidavit either in regard to deposing to the affidavits or in regard to instituting the applications.’’ (my emphasis)

 

[25] Dewrance AJ for obvious reasons did not engage the Rule 7 issue. Reid J seized with the application, stated as follows on the Rule 7 issue in her judgment reported on Saflii as Ditsobotla & Carewell Holdings 5 (Pty) Ltd Case Number 1396/2022 of 10 August 2023:

 

“[14] On 2 August 2023 Carewell Holdings filed a Notice in terms of Rule 7 of the Uniform Rules of Court, requesting specific documents to prove, amongst other issues, that the deponent to the urgent application, as well as the attorneys acting for the Municipality, has the authority to act on behalf of the Municipality. The Municipality answered to the Rule 7 notice and attached (a) the letter of instruction from the Municipality to the attorney dated 20 July 2023, and (b) the extract from the Minutes of a Special Municipal Council and Resolution from the Municipality dated 8 June 2023.”

(my emphasis)

 

[26]   At paragraph [34] of the judgment, however, Reid J stated:

 

“[34] Having found that the Rule 30 notice is upheld and the filing of second urgent application is an irregular proceeding, there is no need venture into the issues raised in the Rule 7 notice of authority.”

 

[27]   What is incontrovertible therefore is that no finding was made on the Rule 7 notice by Reid J. Any suggestion implying the contrary is disingenuous. The main bow in the arrow of the Municipality is what is purported to be “A Council Resolution of the applicant’s authorising the applicant, including Mr Serame Solly Nnete to institute the current legal proceedings against inter alia the first respondent.” The Municipality appears to find solace in paragraph [14] of the judgment of Reid J and a purported Council resolution authorising same, which does not avail it in light of the finding at paragraph [34] of the judgment. I traverse this in more detail later. 

 

[28]   The architecture of Rule 7 has a specific intent. Rule 7(1) provides as follows:

 

         “7 Power of Attorney

(1)  Subject to the provisions  of subrules (2) and (3) a power of attorney to act need not filed, but the authority of anyone acting on behalf of a party may, within 10 days after it has come to the notice of a party that such person is so acting, or with the leave of the court on good cause shown at any time before judgment, be disputed, whereafter such person may no loanger act unless he satisfied the court that he is authorised so to act, and to enable him to do so the court may postpone the hearing of the action or application.” 

 

[29]  It would be apposite to deal with each of the grounds elucidated in the Notice in terms of Rule 7(1), and the response of the Municipality thereto insofar as it relates to the affidavit of Mr Serame Solly Nnete.

 

[30]  The Municipality in asserting compliance with Rule 7(1) alludes firstly, to a “Copy of the Council’s Resolution of the applicant’s Municipal Council appointing the deponent, Mr Serame Solly Nnete  as the Acting Municipal Manager.” An extract from a Special Council Meeting held on 8 June 2023, where Nnete was appointed as Acting Municipal Manager for a period not exceeding three months in accordance with s54A of the Local Government Municipal Systems Act 32 of 2000 is provided. Notably 8 June 2023 is the date on which Khan AJ granted default judgment in favour of Caswell Holdings.

 

[31]  In further asserting compliance with Rule 7(1), a “Copy of Mr Serame Solly Nnete’s employment agreement, as Acting Municipal Manager” is provided. The employment agreement is of no consequence and merits no further attention when regard is had to the fact that nothing precludes the Acting Municipal Manager from deposing to an affidavit as discussed supra.

 

[32]      As stated supra, paragraph [14] of the judgment of Reid J does not avail the Municipality. It is apposite to have regard to the reply to the Rule 7(1) notice in respect of the Acting Municipal Manager with reference to a letter of instruction to the attorneys and a resolution taken on 8 June 2023:

 

1.            Please accept this letter as your instruction to immediately commence in defending the above cited matter on our behalf.

 

2.            We enclose copies of the relevant documents for production in court as necessary.

 

3.            If you need further documents or information, please contact the office of Municipal Manager alternatively Legal Services.

 

4.             Please inform the Municipality on all the cost implications.

 

5.             We request that we be kept informed of the progress of this matter and to consult us if any decision with financial implications needs to be made including appointment of Senior Council where necessary.

 

EXTRACT FROM THE MINUTES OF A SPECIAL COUNCIL MEETING HELD ON 8 JUNE 2023

MOTIONS WITHOUT NOTICE FOR THE TERMINATION OF THE APPOINTMENT OF THE ACTING MUNICIPAL MANAGER (8/6/2023)

 

B9 RESOLUTION

a)    That Council resolved to terminate the contract of Ms Mamorena Lehoko as Acting Manager with immediate effect.

 

b)    That Council resolved to appoint Mr. Serame Solly Nnete as Acting Municipal Manager for the period not exceeding three months in line with section 54A of Local Government Municipal Systems Act 32 of 2000.

 

c)     That the former Acting Municipal, Ms Mamorena Lehoko, be removed as a signatory to Ditsobotla municipal bank account.

 

d)    That a protection order be issued against of the former acting Municipal Manager preventing her access to municipal premises.

 

e)    That a letter should be issued to the MEC for Cooperative Governance and Traditional Affairs informing him of immediate termination of the previous acting Municipal Manager.”

 

[33]   The “resolutions of Council” of 8 June 2023 are of no assistance to the Municipality for two reasons. Firstly, the Special Council Meeting was held on the 8 June 2023 on the very day default judgment was entered against the Municipality by order of Khan AJ. On the version of Nnete who was appointed on 8 June 2023, he states in the founding affidavit that:

 

“[40] I was not aware of the fact that default judgment was granted in favour of the first respondent and that the municipal banking accounts were attached until we were informed by the bank on or about 20 JULY 2023 that they were served with a writ of execution and that the five bank accounts have been attached accordingly.”

 

A benevolent reading of the reply to the Notice in terms of Rule 7(1) falls short of providing the authority that is required for the Acting Municipal Manager to institute legal proceedings on behalf of the applicant.

 

[34]    Secondly, if fortuitously the default judgment had come to the implicit knowledge of other members of the Council, it is inexplicable how an issue of such serious import was not placed on the Agenda of Council for due consideration by the Special Council Meeting. If the issue of the default judgment was known to Council or any of its members and duly considered, it should follow axiomatically that it should not be an unassailable task for the Municipality to produce the full extracts of any minutes relevant thereto, to reply substantially to the Rule 7(1) Notice. The resolutions of Council of 8 June 2023 logically therefore cannot be invoked as a basis to assert authorisation to the Acting Municipal Manager to launch this application.   The absence of same leads to the ineluctable inference that no such Council Resolution exists. 

 

[35]   The ineluctable deduction therefore is that the resolutions adopted by Council could not have addressed the default judgment granted on 8 June 2023, and cannot serve as authorisation for the Acting Municipal Manager appointed on 8 June 2023, to launch this application.

 

[36]   The Municipality has a further problem in that its reliance on “A power of attorney by the applicant’s Municipal Council appointing Modiboa Attorneys Inc, as the applicant’s attorney current application” was not produced. This is fatal. The further assertion regarding “Proof that Modiboa Attorneys Inc had been properly appointed as service provider by the applicant in terms of the provisions of section 217 of the Constitution, National Treasury Regulations, and the Supply Chain Management Policy of the applicant”, was similarly not proven.

 

[37]     The supplementary affidavit of Dube was not competently introduced into evidence. A reading of the conspectus of the application leads to the ineluctable conclusion that Dube’s affidavit was to be a supplementary affidavit to the Acting Municipal Manager. Even if the supplementary affidavit had been properly introduced, it would not have cured the Rule 7(1) shortcoming.

 

[38] Notwithstanding the convoluted manner in which the urgent application was presented and the confusion regarding the status of the supplementary affidavit of Bridget Duduzile Dube (which was not in the bundle for this urgent application), the way the supplementary affidavit was sought to be introduced and not its admissibility, is addressed.

 

[39]    A supplementary affidavit can be filed only with the leave of the court to bring in new (additional) facts which have not been addressed in the original application. It is a well-recognized principle in our law that it is in the interests of the administration of justice to require adherence to well established rules and that those rules should in the ordinary course be observed. See James Brown & Hamer (Pty) Ltd v Simmons  1963 (4) SA 656 (A) at 660 E-G.

 

[40]    A party seeking to introduce further affidavits in proceedings is seeking the indulgence from the court. See Bangtoo Bros and Others v National Transport Commission and Others 1973 (4) SA 667 (N) at 680B, Standard Bank of SA v Sewpersadth and Another  2005 (4) SA 148 (C). It is well established that there are customarily three sets of affidavits in motion proceedings, but that the Court has a wide discretion to allow the filing of further affidavits. It is upon the litigant who seeks to file a further affidavit to provide an explanation to the satisfaction of the Court, that it was not malicious in its endeavour to file a further affidavit and that the other party will not be prejudiced thereby.

 

[41]     In Meropa Communications (Pty) Ltd & Another v Verb Media (Pty) Ltd [GLDH] Case No: 29646/2016 (unreported) the Court stated the following:

 

“The mere filing of the supplementary founding affidavit does not constitute an irregular step. The affidavit will in any event not be considered admitted until leave is granted by the Court dealing with the application. If good cause is shown why the supplementary affidavit should be permitted, and the court, in its discretion allows the affidavit, it will in effect retrospectively condone the filing of the affidavit. If the respondent had filed the affidavit without seeking the leave of the court, the affidavit at best, in the discretion of the court, could be regarded a pro non scripto.”

 

[42]     In Khunou & Others v Fihrer & Son 1982 (3) SA (WLD), the Court stated the following:

 

“The proper function of a Court is to try disputes between litigants who have real grievances and so see to it that justice is done. The rules of civil procedure exist in order to enable Courts to perform this duty with which, in turn, the orderly functioning, and indeed the very existence, of society is inextricably interwoven. The Rules of Court are in a sense merely a refinement of the general rule of civil procedure. They are designed not only to allow litigants to come to grips as expeditiously and as inexpensively as possible with the real issues between them, but also to ensure that the Courts dispense justice uniformly and fairly, and that the true issues aforementioned are clarified and tried in a just manner.”

 

[43]     In Trans-African Insurance Co Ltd v Maluleka supra, quoted with approval in Life Healthcare Group (Pty) Ltd v Mdladla & Another (42156/2013) [2014] ZAGPJHC 20 (10 February 2014), the Court stated the following:

 

“No doubt parties and their legal advisers should not be encouraged to become slack in the observance of the Rules, which are an important element in the machinery for the administration of justice. But on the other hand, technical objections to less than perfect procedural steps should not be permitted, in the absence of prejudice, to interfere with the expeditious and, if possible, inexpensive decision of cases on their real merits.”

 

[44]     The is therefore no accentuating that there was substantial non-compliance in answering the Rule 7(1) notice. To sum up: The extract of the minutes of the Special Council Meeting held on 8 June 2023 does not avail the Municipality. The Rule 7 challenge should accordingly succeed.

 

[45]    Finally, in respect of the numerous procedural shorting comings that have been raised by the first respondent in terms of the Notice in terms of Rule 30 and Rule 30A, it is trite that a piecemeal approach to the adjudication of litigation should be deprecated. In light of the finding on the Rule 7 challenge, however, I refrain from expressing any view on the complaints raised in the Rule 30 and Rule 30A Notice.

 

Conclusion

 

[46]   The Rule 7 challenge on the lack of authority of the Acting Municipal Manager to institute the application stands to be upheld.

 

Costs

 

[47]     In respect of costs, there is no basis to deviate from the usual order in urgent applications. The scale on which costs should  awarded be awarded is  the subject of the dispute. The Municipality contended that if the Court finds for Caswell Holdings, as far as the Rule 7(1) notice is concerned, costs should follow. Carewell Holdingsserved the notice in terms of Rule 7(1) on the Municipality on 26 July 2023, which did not cohere strict acquiescence. A repeated notice framed within the same purview was served on the Municipality on 3 August 2023, with no reaction. This Court was held to ransom between 16h30 to 18h00 on the hearing of the urgent application, in allowing the Municipality to index and paginate a proper court bundle that dealt exclusively with the third urgent application. Notwithstanding this indulgence, the presented paginated bundle lacked documents. The Municipality did not file updated written heads of argument. The Municipality consciously disregarded the application of Rule 41A with no application for condonation.  This led to a state of confusion. The litigating conduct of the Municipality must be frowned upon, and this Court must express its displeasure through an appropriate punitive cost order.

 

Order

 

[48]   These constitute the reasons for the order handed down on 24 August 2023 in the following terms:

        

(i)            The application is dismissed.

 

(ii)          The Notice in terms of Rule 7(1) is upheld.

 

(iii)         The applicant is ordered to pay the costs of this application  on a punitive scale as between attorney and client.

 

 

A REDDY

ACTING JUDGES OF THE HIGH COURT,

NORTH WEST DIVISION, MAHIKENG

 

APPEARANCES

Counsel for the Applicant:	Adv Moretlana
Attorneys for Applicant:	Roux Botha Attorneys
	c/o Smit Neethling Inc
	29 Warren Street
	MAHIKENG
	Tel: 018 381 0801
Counsel for First Respondent:	Adv Scholtz
Attorneys for Respondent:	Modiboa Attorneys
	10 Tillard Street
	Mahikeng
	TEL: 018 100 0965
Date of Hearing:	18 August 2023
Date of Order:	25 August 2023
Date of Reasons for Judgment:	31 August 2023
Revised date of reasons for Judgment:	01 September 2023

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