Mantsopa Local Municipality v Inzalo Enterprise Management Systems (Pty) Ltd

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: Opperman J
• Judgment Date: 23 August 2023
• Citation: 2023 JDR 3254 (FB)
• Hearing Date: 21 August 2023
• Docket Number: 3832/2023
• Court: Free State Division, Bloemfontein

Opperman J:

[1]

This is an opposed urgent interlocutory application [3] in terms whereof the Mantsopa Local Municipality seeks to amend its rule 30/30A-Notice dated 15 August 2023.

[2]

There are two cases/court files in this matter running parallel. It is case number: 1582/2023, the case on which the 5 May 2023-order (“the original order”) [4] was made. Then there is this application for declaring the non-compliance of the original court order to be contempt of court (the contempt of court application) under case number: 3832/2023. The urgent interlocutory application, in terms of rule 6(11), was brought under case number

2023 JDR 3254 p3

Opperman J

3832/2023. The interlocutory application was the subject of the urgent application on 18 August 2023 and 21 August 2023.

[3]

An urgent contempt of court application was launched in July 2023 but was struck off the urgent court roll on 1 August 2023 for lack of urgency.

[4]

Inzalo’s contempt of court application was hereafter set down on 4 August 2023 for hearing on 24 August 2023. The Municipality took proper cognizance of the date of 24 August 2023 when the matter was set down to be vented in a hearing of a formal opposed motion. Strangely enough, was the file (case number 3832/2023) located on the unopposed motion court roll on 18 August 2023 when it was drawn for the urgent roll. I instructed that the attorney for Inzalo be informed of the situation. The files were immediately referred to the Judge President for decision of the placement thereof. From a quick perusal of the file, it does not seem as if the Municipality has filed their heads of argument for the 24 August 2023-hearing or timeously so. The matter might not be ready to be heard on the 24th of August 2023.

[5]

The background facts are that the Municipality curiously so, served the Notice in terms of rules 30/30A only on 15 August 2023. Two complaints came to the fore; namely, (i) that Inzalo enrolled the contempt application without first amending its notice of motion after the matter was struck from the urgent court roll on 1 August 2023, and (ii) that Inzalo did not afford the Municipality the ordinary court time periods to file an answering affidavit in the contempt application.

[6]

The Municipality demanded that Inzalo remove the complaints within the usual period of 10 days prescribed by rules 30 and 30A of the Uniform Rules of Court, failing which the Municipality threatened to bring its exception. Strangely, the dies set in the Notice expired on 25 August 2023, that is a day after the hearing of the pending contempt application on 24 August 2023.

2023 JDR 3254 p4

Opperman J

[7]

It is the case for the Municipality that on the evening of 16 August 2023, its counsel became aware that the time periods in the Notice were an oversight. The Municipality launched this urgent application on 17 August 2023 to amend the time periods in the Notice from 25 August 2023 to 22 August 2023; two days before the hearing of the contempt application. This does not make sense since the complaints cannot effectively, practically, and procedurally be removed before the 24th of August 2023. The application seems to be still born and moot; the prejudice to Inzalo grave and the effect on the administration of justice real.

[8]

The right of access to courts is essential in a constitutional democracy under the rule of law and specifically so in terms of section 34 of the Constitution of the Republic of South Africa, 1996: “Everyone has the right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court or, where appropriate, another independent and impartial tribunal or forum.”

[9]

Condonation granted on the facts of this case in terms of the Uniform Rules of Court may break any limitation placed on this right.

[10]

The right of access to courts that is a fundamental right, is eclipsed by the right to justice that also entails, inter alia, a fair trial. Section 34 of the Constitution refers to the application of law decided in a fair public hearing.

[11]

This case is a reminder that the rules of courts may not be utilized to play litigatory games that delay justice and cause costs and procedural misery. Litigation must be proper and timeous and may not cause trials or hearings to become chaos.

[12]

Courts may also not be held hostage by the reliance on section 34 of the Constitution. Litigation and access to courts are constitutional rights that may not be trampled and ridiculed; it must be conducted with the utmost decorum and respect for the rule of law.

2023 JDR 3254 p5

Opperman J

[13]

An interlocutory application, such as in casu, is an urgent request made to court to compel compliance with procedure and time periods; or otherwise, is to secure some end and purpose necessary and essential to the progress of a case. The application at hand obstructs this vision. It causes a regression of the litigation.

[14]

It is not clear how the rule 30/30A-Notice only came to be served on 15 August 2023 whilst it was well known on 4 August 2023 that the hearing was on 24 August 2023. The oversight cannot be condoned and does not cause urgency in terms of rule 6(12). Careless litigation cannot be cured by an urgent application especially if the prejudice to the other party and administration of justice is clear. The law is well known. Harms [5] with reference to case law came to the following conclusions:

1.

In a case of urgency, the court or a judge in chambers may dispense with the forms and service provided for in the rules and may hear the matter at such time and place and in such a manner and according to such procedure as the circumstances require.

2.

The rules must, however, be complied with as far as is practicable, including the use of the long form, but basic principles, such as jurisdiction or legal standing, cannot thereby be jettisoned.

3.

The applicant must apply for an order condoning the non-compliance with the rules.

4.

There are degrees of urgency.

5.

Some matters may be so urgent as to necessitate an immediate hearing, albeit at night or during a weekend and may even be so urgent that no time is available to prepare any documents, in which case viva voce evidence may be heard. Others again, whilst they may be such that the time limits imposed by the rules may be ignored, may not be so urgent as to require a hearing out of normal court hours.

6.

The applicant must set forth explicitly the circumstances which render the matter urgent, firstly, and, where necessary, require that the matter be heard outside of a court’s usual urgent procedures.

7.

The applicant must show an absence of substantial redress if not heard in as a matter of urgency. This is not the equivalent of irreparable harm. Delay will not automatically result in the matter not being considered urgent. (...