CASE LAW UPDATE

Facts: Ms Voigt is the plaintiff in the main action and was employed as an Executive Personal Assistant by Motswako Office Solutions. Mr Austin was employed as Chief Operations Officer by Motswako. Ms Voigt is an incola who resides in South Africa and has a South African identity document. She instituted action against Mr Austin and Motswako for damages allegedly suffered as a result of Mr Austin’s alleged sexual harassment of Ms Voigt from March to July 2021. She contends that Motswako is vicariously liable to her for the alleged damages she suffered, alternatively, she alleges that Motswako is directly liable to her for damages suffered due to a breach of its statutory duty of care.

Application: This is an opposed interlocutory application for security for costs in terms of Uniform Rule 47. The applicant (Motswako) served a Rule 47(1) notice to provide security for costs in the amount of R150,000. The applicant argues that the respondent (Ms Voigt) has failed to demonstrate that she will be in a position to pay the costs of the applicant, if she is ultimately ordered to pay same. The applicant reiterates that the respondent’s claim against the applicant is unsustainable and it has been brought for purposes other than to facilitate the pursuit of the truth.

Discussion: The applicant is of the view that an action is vexatious if it is obviously unsustainable. A finding of vexatiousness need not be made “as a matter of certainty” but must be made on a preponderance of probability. The applicant is also of the view that the term “abuse of process” connotes that the legal machinery is employed for some ulterior purpose. The respondent has indicated that she is employed and she is earning R25,000 per month. She also co-owns an immovable property worth R1,600,000. The respondent is of the view that the applicant has gone out of its way to make the process as difficult and cumbersome for the respondent as possible, before she can proceed with her claim.

Findings: The test for requiring an incola respondent to provide security for an applicant’s costs is a difficult one to overcome. Such orders are only made in rare cases where the conduct of the respondent meets the high threshold of vexatiousness, recklessness or an abuse of process. The financial considerations are not dispositive of the right to security, particularly where the respondent is an incola. Courts are anxious not to close their doors to incola of South Africa merely on the grounds of impecuniosity, for this would be to limit access to justice based on wealth. The court is persuaded by the respondent’s argument that this Rule 47 application is without merit and must fail. The applicant has failed to establish that the respondent will be unable to satisfy a potential cost order. The applicant has also failed to establish that the action instituted by the respondent is vexatious or reckless or otherwise amounts to an abuse of this court’s process.

Order: The applicant’s interlocutory application in terms of Uniform Rule 47 is dismissed with costs on a party and party scale.

JOYINI J

Facts: The parties are the divorced biological parents of a minor daughter aged 14 years at the time of the application. The parties were divorced in 2021 and the final decree of divorce incorporates a consent paper and parenting plan. The applicant and the parties’ daughter reside in Hemel en Aarde, Hermanus. The child attends high school and is, by all accounts, an exceptionally talented dancer who has attained several dance achievements at her young age. One of her recent achievements is that she represented South Africa at the 2024 Dance Star Competition in Croatia. The father enjoys reasonable contact with his daughter. His maintenance obligations toward her include the payment of school fees, costs of extra murals, school books, cellphone and related expenses, additional educational costs, medical aid contributions and the payment of pocket money.

Application: The mother (applicant) approached this court during the recess period on an urgent basis, seeking that the father (respondent) pay monthly maintenance for the daughter of R51,300 and directing him to consent to the enrolment of daughter in a school in Green Point. The applicant states that the minor child exhibits exceptional dancing talent and prowess and that the school in Hermanus no longer provides a suitable platform for her to showcase her dancing skills. These views are apparently shared by the child and the teacher.

Discussion: The applicant regarded increasing the child's social network by offering her the opportunity to dance at a prestigious dance institute as an enhancement of the child’s development, which at the time of the application, was at a crucial stage as she was 14 years old. The respondent submitted that despite a mediation process and the mediator’s proposal to reconvene in January, the applicant withdrew from the mediation process. It appeared that the applicant did not play open cards with the court in respect of the timeline which she said rendered her application urgent. The court concludes that long before the dance audition in November 2024, the applicant had already taken steps to apply for and enroll the daughter, and did so without informing the respondent, who is the co-holder of parental rights and responsibilities in relation to their daughter. Clearly, he was sidestepped on the issue of his daughter’s relocation and change of schools and only placed in the picture at a later stage, in November 2024.

Findings: The court agrees with the respondent’s submission that the urgency was self-created. It seemed that when the applicant did not get her way or did not like the way the mediation was going, she then decided to withdraw from the process. The applicant was of the view that relocation was in the child’s best interests, yet the mediator was of the view that the child’s best interests would still have to be assessed. Whether enrolling the daughter at the new school, removing her in Grade 9, leaving behind all the friends and familiar surroundings/community and current dance school, would be in the child's best interests, must still be assessed by a professional expert. Section 31(2)(a) of the Children’s Act 38 of 2005 provides for the consideration of any views and wishes expressed by any co-holder of parental responsibilities. The mother unilaterally decided in September/October 2024, and without notice to and engagement with the respondent, that the child would relocate to Cape Town, change schools, and in so doing, failed or had no regard to the father’s views and wishes as a co-parent and co-guardian.

Order: The application is struck from the urgent roll. It is ordered that the minor child’s best interests, particularly in relation to an intended relocation from Hermanus to Cape Town and a potential change of schools, be assessed as soon as possible by an expert professional. The applicant is ordered to pay the costs on an attorney and client scale to be taxed.

PANGARKER J

Issue: The judgment elucidates the abuse of power resulting from robust yet unprincipled debt collection practices by the City of Johannesburg (CoJ). The administration of the CoJ exhibits "intrinsic dysfunctionality" in this category of dispute. The cases considered in the judgment reveal the continued corrosive impact of unchecked power on the CoJ’s debt collection practices. Additionally, it underscores how a specific group of lawyers, frequently retained by the CoJ, persistently pursue unmeritorious arguments, undeterred by the facts of the individual cases. This culminates in unnecessary High Court litigation for those few who can afford to seek relief, while many less fortunate customers no doubt remain at the mercy of an indifferent officialdom. Consequently, severe financial burdens and hardships are imposed on customers and ratepayers. The judgment confronts the grave and far-reaching consequences of continued abuse of power with unflinching resolve.

Application: Three urgent applications were enrolled for hearing on the urgent motion court roll. These applications arise from the disconnection of customers’ utilities by the City of Johannesburg (CoJ) and City Power (CP), the latter being a wholly owned municipal entity of the CoJ.

Erf 7 matter: Ms Lawrence explains that she is the administrator of the applicant which is the registered owner of the property. The need for the urgent application arose when a representative visited the property and shut off, or attempted to shut off, the water supplies due to alleged unpaid electricity accounts dating back to over a decade ago. There has been a longstanding dispute with the respondents dating back to approximately 2010–2012, when the CoJ allegedly issued excessive electricity accounts to the applicant. The applicant continues to make payment of the CoJ’s monthly charges on the due date. According to the deponent, all current accounts are being settled timeously and without deduction. The deponent states that two agents of the CoJ inspected the property’s electricity meters and declared them faulty and in need of replacement or recalibration. Although the meters were eventually removed, neither the CoJ nor City Power provided any feedback regarding the steps taken to resolve the issue.

Ordicode matter: It is alleged that incorrect charges were levied in respect of electricity consumption at the property during 2019–2021. Two meters are installed there namely a domestic meter and a commercial meter. In respect of the commercial meter, the CoJ is alleged in the main application to have conceded an overcharge of R3,816,226.80 in its own investigation report. That amount was indeed credited, but the CoJ failed (says the applicant) to reverse the associated interest and penalties. The domestic meter was also faulty, says the applicant, and reprogrammed in December 2020. Despite referral to the CoJ and CP for recalculation and rectification, there has been no report or recalculation. In addition, the applicant alleges that it was charged R469,415.27 for electricity alone for the periods September 2020 to June 2023. All these problems cause applicant to receive what are described as “astronomical accounts for electricity consumption which is non-sensical and convolute.”  At various stages, the overcharged amount (allegedly) varied around the R8m mark, reaching almost R9m in the month of October 2022. The CoJ failed to present any admissible evidence of the underlying facts to counter the applicant’s version.

Hyde Park matter: The applicant conducts business as Shell, Hyde Park. The founding affidavit recounts billing disputes between the applicant and the respondents dating back to 2016. The CoJ issued an invoice starting with a zero balance on the account, and then proceeded to bill an amount of R6,117,237.21. The applicant procured the services of an independent external energy consultant, who installed meters on the applicant’s premises to monitor actual usage. It was determined that the applicant’s actual monthly usage amounts to approximately R40,000, which, according to the applicant, confirms that a genuine dispute exists between the parties regarding the alleged overbilling. The CoJ issued a pre-termination notice. This prompted an urgent application by the applicant, resulting in an order being granted in favour of the applicant interdicting the respondent. The applicant states that the CoJ has, to date, failed to comply with the order. Contempt of the order has been established on a balance of probabilities. The CoJ failed to provide any evidence to create a reasonable doubt regarding whether its non-compliance with the order was wilful and mala fide.

Findings: It is alarming that, despite the two judgments and at least three other decisions of the court, which contained explicit warnings against repeating the same unacceptable conduct, directed to be brought to the attention of the Mayor, the City Manager, the Head of Revenue Collection, and the Chief Legal Advisor, the grave concerns expressed by the Deputy Judge President appear to have been disregarded. This attitude demonstrates a troubling indifference to accountability and oversight, coupled with a marked disregard for the authority of the court. The City of Johannesburg’s answering affidavits in all three matters fail to comply with the basic requirements.

Order: In Erf 7, the respondents are interdicted from disconnecting the electricity and/or water supply to the property based on the disputed arrears, pending the final determination of the rights of the parties and outcome of the litigation. In Ordicode, the respondents are interdicted and restrained from terminating the electricity supply to applicant’s property without a court order pending the resolution of the disputes of the main application. In Hyde Park, the City of Johannesburg is found to be in contempt of paragraph 2 of the order made previously.

BADENHORST AJ

Facts: The case pertains to the Municipality’s ongoing non-payment of contributions and non-compliance with court orders obtained by the Municipal Workers’ Retirement Fund (Fund) dating back to 2011. The quantum is not in dispute. The period on which the claim is based is May 2021 to January 2024. The debt comprises the respondent’s arrear monthly retirement contributions due to the Fund in respect of its employees-members in terms of section 13A(1) of the Pension Funds Act 24 of 1956 (PFA) read with the rules of the Fund. The PFA obliges the Fund to ensure that contributions are timeously paid. The monies were deducted from the employees/members.

Application: The applicant motions for an order that the respondents are jointly and severally to make payment of the obligation in terms of the PFA. It is the Fund’s case that the total amount due is R14,723,639.52. The amount includes interest in terms of the rate prescribed in section 13A(7).

Discussion: There is not any other process to be followed outside section 13A(9)(a). The only preliminary process prescribed to claim against the liable entities in terms of the PFA on the scenario in this case is that notice must be given in terms of section 13A(9). The Fund did make the prescribed request in terms of section 13A(9)(a) to the Municipality. However, they were simply ignored, and no response was forthcoming. This is the only required procedure that had to be complied with before the claim was instituted. The claim was filed on 25 March 2024 and notwithstanding a reference to the request in terms of section 13A(9)(a) and the attachment thereof to the founding affidavit, the current incumbents remained silent. The argument of defective joinder and citation of the respondents by counsel for the Municipal Officers falls by the wayside due to their own neglect and contempt of the provisions of the PFA. The respondents have a heightened obligation to comply with the rule of law and specifically the Constitution. They may not choose when and how to implement the legislation that decrees their conduct. Some of the defences that are raised have been disposed of and ruled on by the judgments that went before this case. The Municipality was unsuccessful, but they persisted. Non-payment of contributions is an ongoing, single and continuous act and offence. The Municipal Officers and Administrator do not dispute the fact that the contributions with the interest stipulated are due. They simply allege that they made some efforts to conclude an arrangement with the Fund.

Findings: An admission of non-payment is a confession to criminal and civil liability. The mere non-payment of the deducted contributions by the employer as represented by the Municipal Officers and Administrator, is within the realm of criminal. Non-compliance must be reported to the South African Police Service by the Fund. The Municipal Officers and Administrator, personally liable to pay the claim, must also be prosecuted; there is no getting away from liability. The history of the litigation by the Fund with Mafube Municipality, and this case, is a conspicuous and disappointing example of the destruction of the sacrosanct constitutional ethos of the Republic of South Africa by the very institution and its officers that must protect it. The conduct of the Municipality and the other respondents causes a malfunction of the rule of law. The consequences for the employees/members, who are innocent bystanders, are grave. The outcome of the case to order personal liability of the Municipal Officers and the Administrator is necessary to even the scales of justice; there is not any other remedy that will suffice. Their conduct is criminal according to the PFA.

Order: The respondents are ordered jointly and severally to make payment to the applicant in the amount of R14,723 639.52 and to make payment to the applicant of interest on the amount of R14,723,639.52.

OPPERMAN J