Lekwa Local Municipality v Eskom Holdings Soc Ltd
| Jurisdiction | South Africa |
| Judge | HF Brauckmann AJ |
| Judgment Date | 07 July 2020 |
| Docket Number | 126/2019 |
| Hearing Date | 07 July 2020 |
| Citation | 2020 JDR 1344 (MN) |
Brauckmann AJ:
INTRODUCTION:
The applicant ("Lekwa") is one of the financially challenged local municipalities in the Mpumalanga province. For the reasons set out later in this judgment, I am not going deal with the merits of the application in detail, but will touch on the important aspects that has a bearing on the judgment. I gave an ex tempore judgment on 07 July 2020, and provide my reasons for the order herewith.
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This is an application, brought on an extremely urgent basis, with severely truncated time-periods determined for the respondents to consider the application, decide whether they want to oppose and even less time to file opposing papers in.
The applicant ("Lekwa") seeks, amongst other, declaratory orders and an interdict against the first respondent ("Eskom") in terms whereof this Court is asked to restrict Eskom's rights in terms of section 34 [1] of the Constitution. [2] Lekwa also applies to have the fifth respondent ("Nersa") joined in the proceeding pending in this Court.
URGENCY:
According to Lekwa the urgency of the matter arose on 18 February 2020 when Eskom sent a letter to Lekwa demanding payment of the amount owed on its current account. The letter is attached and
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marked as Annexure "LM9" to Lekwa's Founding Affidavit. The letter concludes with the following statements by Eskom's attorneys:
"9. Our client demands that you pay the amount of R 1 047 770 176.00 or, alternatively, contact us with a reasonable and acceptable plan to Eskom on or before 02 April 2020.
10. Should you fail to pay or make arrangements as aforesaid, our instructions are to institute legal proceedings against you, the cost of which you will be liable for"
From a reading of the letter, and Lekwa's founding affidavit, it is apparent that it became aware of Eskom's claim for payment of its current outstanding account since at least 18 February 2020. Since the letter was received, and replied to by Lekwa's attorneys, no legal steps were taken by Eskom. That much is common case amongst the parties as I did not note that any summons had been issued or any other steps taken by Eskom.
The Practice Directives [3] of this division is clear, and to start with, I will quote them verbatim. The urgent court is the most abused procedure / court in this division. Applicants often approaches the urgent court, without any grounds for urgency in the hope to steal a march on other litigants that patiently await their turn on the
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opposed roll. It has become time that these divisions Judges consistently refuse to hear applications that are not deserved of being heard in the urgent court. I have too often heard the argument that "we are here M 'lord, we might as well deal with the matter as all the affidavits have been filed. Why just 'kick the can down the road' "? The argument never fails to not only schock me, but also makes me wonder as to how such a practitioner can get him/her self so far to argue accordingly without being aware of the fact that he/she is underestimating the intelligence of the judicial officer in his/her face.
The Practice Directives relevant to the matter before me are:
"10.1 Urgent applications shall be heard at 10h00 on every Tuesday of each week.
10.2 Matters to be enrolled for hearing on the Tuesday at 10h00 must be filed with the Registrar by not later than 12h00 on Thursday of the preceding week to enable the Registrar to prepare and submit in time the file(s) to the judge on the urgent roll.
"10.4 The enrolment shall be guided by when urgency arose and the nature of urgency and at the hearing of the matter the court shall first consider whether the enrolment is accordance with the preceding sub-paragraphs before it deals with urgency and or merits of the application.
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10.5 No application brought on urgent basis will be enrolled and heard unless the affected party or parties have been given sufficient notice of the place, date and time of the hearing of the application. This includes reasonable time to enable the affected party to prepare, file opposing papers and attend court.
10.9 In each and every matter that is brought on urgent basis, the reasons for urgency must be clearly and concisely set out in the founding affidavit and it must be clear that urgency was not self-created.
10.10 Any application brought on urgent basis will be struck from the roll if not properly enrolled and or if urgency is not evident from or established in the papers." [Own emphasis]
The practice Directives were not plucked out of the thin air by this division's Judge President, but was carefully formulated and based on, not only his years of experience as a judicial officer, but well established principles in our case law.
The law on urgency is clear. Urgent applications must be brought in accordance with the provisions of rule 6(12) of the Uniform Rules of Court, with due regard to the guidelines set out in cases such as Die Republikeinse Publikasies (Edms) Bpk vs Afrikaanse Pers
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Publikasies (Edms) Bpk [4] as well as a well-known case of Luna Meubelvervaardigers (Edms) Bpk v Makin and Another [5] .
The Practice Directives, as appears from the quoted paragraphs above, requires an applicant, in an urgent application, to set out explicitly the circumstances which render the matter urgent. It is further emphasised that while an application may be urgent, it may not be sufficiently urgent to be heard at the time selected by the applicants. Further to the aforesaid, the Practice Directives provide that should the practices regarding the proceedings in urgent application not be adhered to, and the application not be enrolled on a date or at a time that is justified, the application will not be enrolled and an appropriate cost order will be made.
In the judgment of East Rock Trading 7 (Pty) Limited and another v Eagle Valley Granite (Pty) Limited and others [6] it was held:-
"The import thereof is that the procedure set out in Rule 6(12) is not there for the taking. An applicant has to set forth explicitly the circumstances which he avers render the matter urgent. More importantly, the applicant
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must state the reasons why he claims that he cannot be afforded substantial readdress at a hearing in due course. The question of whether a matter is sufficiently urgent to be enrolled and heard as an urgent application is underpinned by the issue of absence of substantial readdress in the application in due course. The rules allow the court to come to the assistance of a litigant because of the latter, were to wait for the normal course laid down by the rules, it will not obtain substantial readdress.
It is important to note that the rules require absence of...
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