THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

JUDGMENT

Case No: 20236/2014

Not Reportable

In the matter between

L E THOM  (PTY) LIMITED

APPELLANT

and

BA-PHALABORWA MUNICIPALITY
RESPONDENT

Neutral citation: Thom v Ba-Phalaborwa Municipality (20236/14)
[2015] ZASCA 95 (01 June 2015)

Coram:
Bosielo, Wallis and Willis JJA, Dambuza and Meyer AJJA

Heard:
21 May 2015

Delivered: 01 June 2015

Summary: Mandamus – municipality sought an order by notice of
motion to be granted access through appellant‟s property to
clear a nuisance – it alleged that it could only gain access to
the site to be cleared through the appellant‟s property –
appellant disputed this and alleged that there were other
access points through which municipality could not gain
access to the site – serious and genuine dispute of facts –
whether the court below should have granted the order – the
remedial work done by the appellant – is the appeal moot –
whether the appeal will have any practical effect – section 16
(2)(a)(i) of the Superior Courts Act 10 of 2013.

__________________________________________________________

ORDER
___________________________________________________________

On appeal from: North Gauteng High Court, Pretoria (Bam J sitting as a
court of first instance):

The appeal is upheld and the order of the court below is set aside and
substituted with the following:
„The application is dismissed.‟

___________________________________________________________

JUDGMENT
___________________________________________________________

Bosielo JA (Wallis, Willis JJA and Dambuza, Meyer AJJA
concurring):
[1] The appellant is the registered owner of a property situated at 15
Von Wielligh Street, Phalaborwa Extension 1, Limpopo Province. The
respondent is a local municipality which has jurisdiction in the area,
where the appellant‟s property is situated. In 2012 the appellant‟s
property was flooded, when storm water directed into a stream across the
municipality‟s land adjacent to it was unable to flow away, because the
latter property had become overgrown and the stream was blocked by
vegetation.

[2] As a result of the flooding, and pursuant to an application by the
appellant, the North Gauteng High Court, Pretoria (Kubushi J) granted
judgment in its favour on 17 October 2012 in the following terms:

„1. The Respondent is ordered to immediately remove the nuisance caused by the
blocking and silting of the stormwater drainage canal between Potgieter and Cohen
Streets, Phalaborwa Extension 1 Township by immediately removing all soil, silt,
foliage and/or any other material obstructing the flow of stormwater therein;
2. In the event of the Respondent failing to complete the remedial work necessary in
order to comply with 1 above before 17 November 2012, the applicant is hereby
authorised to do such remedial work;
3. Any costs expended by the Applicant pursuant to the remedial work authorised in 2
above, is immediately payable by the Respondent to the Applicant upon presentation
by the Applicant of certified copies of all invoices to the Respondent reflecting the
costs expended in connection therewith;
4. The Respondent is ordered to commence with the construction and installation of a
subsurface drainage system along the entire length of the stormwater canal on or
before 1 February 2013 and to complete the construction thereof on or before 1 May
2013;
5. In the event of the Respondent failing to commence with the construction of the
subsurface drainage system in 4 above, alternatively in the event of the Respondent
commencing with the construction thereof before 1 February 2013, but not
completing same by 1 May 2013, the Applicant is authorised to attend to the
installation of any of the three construction methods proposed in the report by N
Kruger Consulting Engineers, dated 2 November 2011, attached hereto as Annexure
“O”;
6. Any costs expended by the Applicant pursuant to the remedial work authorised in 6
above is immediately payable by the Respondent upon presentation by the Applicant
of certified copies of all invoices reflecting the costs expanded in connection
therewith to the Respondent;
7. The Respondent is ordered to pay the costs of this application on a scale as between
attorney and client.‟

[3] It is common cause that the respondent, despite numerous
reminders by the appellant, failed to comply with the court order. As a
result, the appellant, acting in terms of paragraphs 2 and 5 of the court

order, contracted Rimiro Construction Civil & Building (Rimiro) to do
the remedial work during or about October 2013.

[4] It was only during or about March 2014 that the respondent sent a
service provider Mame Projects CC to the site to commence with the
remedial work. At this stage the appellant had already commenced with
the remedial work. According to the respondent, the appellant unlawfully
erected a fence which effectively denied its service provider access to the
site to undertake the remedial work. It brought an urgent application for
the demolition of the fence and an order that its service provider be
granted access through the appellant‟s property. The main allegation was
that there was only one access point to the site where the remedial work
had to be done through the appellant‟s property on Von Wielligh Street.

[5] In its answering affidavit, the appellant pertinently denied that the
respondent has to go through its property to reach or gain access to the
site. It specifically stated that, contrary to what the respondent averred, its
property does not border on Potgieter Street where the respondent
required access but on Von Wielligh Street. Importantly, it alleged that
the respondent could gain access either from Potgieter Street or by
traversing other properties adjacent to the canal. The respondent disputed
this saying that it could not get access for unspecified heavy machinery
other than through the appellant‟s property.

[6] Self-evidently this presented a serious dispute of facts which could
not be resolved on the papers. Neither of the parties requested that the
matter be referred to trial or for oral evidence to resolve the dispute.
Notwithstanding the serious dispute on the facts, the court below

proceeded to grant judgment in favour of the respondent on 20 May 2014.
Aggrieved by the judgment, the appellant is appealing to this Court with
the leave of the court below.

[7] An applicant who approaches a court for final relief on notice of
motion where it has reason to believe that facts essential to the success of
its claim will probably be disputed, chooses such a procedure at its own
peril. This is such a case. The appellant pertinently disputed that the only
access point to get to the site was through its property. It gave details of
alternative access points which were available to the respondent.

[8] As already indicated in paragraph 5, the respondent knew that the
issue of the access point was seriously disputed by the appellant.
Notwithstanding such knowledge, it elected to adopt motion proceedings.
As it was stated by this Court in Tamarillo (Pty) Ltd v B N Aitken (Pty)
Ltd 1982 (1) 398 (A) at 430H:
„A litigant is entitled to seek relief by way of notice of motion. If he has reason to
believe that facts essential to the success of his claim will probably be disputed he
chooses that procedural form at his peril, for the Court in the exercise of its discretion
might decide neither to refer the matter for trial nor to direct that oral evidence on the
disputed facts be placed before it, but to dismiss the application. (Room Hire Co (Pty)
Ltd v Jeppe Street Mansions (Pty) Ltd 1949 (3) SA 1155 (T) at 1168.)‟
To my mind this is a case where the court below should have referred the
matter for the hearing of oral evidence on this disputed issue or possibly
to trial. It follows that the court below erred in granting final relief in
circumstances where there was a genuine dispute of facts on a material
aspect of the case. Room Hire Co (Pty) Ltd v Jeppe Street Mansions (Pty)
Ltd 1949 (3) SA 1155 (T) at 1168; Plascon-Evans Ltd v Van Riebeeck
Paints (Pty) Ltd 1984 (3) SA 623 (A).

[9] This conclusion would ordinarily have resulted in the appeal being
upheld and the matter being referred back to the high court for the hearing
of evidence. But another matter came to the fore during the hearing of the
appeal. On 15 April 2014 the appellant‟s service provider prepared a
report which indicated that the remedial work might be completed by 23
May 2014. Based on this, the court enquired from the appellant‟s counsel
before us, what the current status of the remedial work was. Counsel for
both parties confirmed to the court that the remedial work which had to
be done in terms of the court order of 17 October 2012 had been
completed. Self-evidently, this rendered the appeal moot. Section
16(2)(a)(i) of the Superior Courts Act 10 of 2013 (the Act) provides that:
„When at the hearing the issues are of such a nature that the decision sought will have
no practical effect or result, the appeal may be dismissed on this ground alone.‟

[10] The order which the respondent sought and which was granted by
the court below was, firstly to grant the appellant access to the storm
water drainage canal between Potgieter and Cohen Streets, and secondly
to remove any fence or obstruction on the appellant‟s property which
denied the respondent access. As alluded to in the previous paragraph the
remedial work has already been finished. The pertinent question is what
practical effect any order as granted by the court below would still have
for the respondent, as there is nothing to be done. Manifestly, such an
order will be an „academic exercise with no practical effect‟ now or in the
future. Recently this Court reiterated the principle as follows in Tecmed
Africa (Pty) Ltd v Minister of Health & another [2012] 4 All SA 149
(SCA) para 20-21:
„Finally, courts should and ought not to decide issues of academic interest only. That
much is trite. In Radio Pretoria this Court expressed its concern about the
proliferation of appeals that had no prospect of being heard on the merits as the order

sought would have no practical effect. It referred to Rand Water Board v Rotek
Industries (Pty) Ltd 2003 (4) SA 58 (SCA) para 26 where the following was said:
“The present case is a good example of this Court's experience in the recent past,
including unreported cases, that there is a growing misperception that there has been a
relaxation or dilution of the fundamental principle . . . that Courts will not make
determinations that will have no practical effect”.
The cumulative effect of all of the factors that I have alluded to is that no practical
effect or result can be achieved in this case. And for those reasons the appeal was
dismissed in terms of s 21A(1) of the Supreme Court Act 59 of 1959.‟
However, were we to dismiss the appeal on this ground, manifest
unfairness would arise because the appellant would be left to bear the
burden of an adverse order for costs in the high court.

[11] I now turn to deal with the issue of costs. As already indicated in
paragraph 5, the court order which is on appeal before us was made on 20
May 2014. According to a letter from Rimiro, they returned to the site on
1 March 2014 to continue with the remedial work. They estimated that
they would complete the remedial work by 23 May 2014. Both parties are
resident in the same area. The appellant‟s property abuts the site where
the remedial work had to be done whilst the respondent has jurisdiction
over the area where the site is. Even the most elementary investigation
would have alerted them timeously that the remedial work had been done.
This would have enabled them to avoid any unnecessary appearance with
concomitant wasted costs before us. They failed to do so. None of the
parties was able to offer any plausible or acceptable explanation. I find
that both parties were remiss and are equally to blame. Equity and
fairness dictate that each party must bear its own costs. In the light of my
conclusion that the court below should not have granted an order without
hearing evidence, its order cannot stand and each party should bear its
own costs in that court as well.

[12] In the result the appeal is upheld and the order of the court below is
substituted with the following:
„The application is dismissed.‟

_________________

L.O. Bosielo

Judge of Appeal

Willis JA (partially concurring and partially dissenting):
[13] I agree with the order that Bosielo JA has proposed. In my opinion,
however, it is the aggregate of the following considerations – rather than
any one of them taken on its own – that leads one to this conclusion: (a)
the obviousness of the error of the decision of the high court; (b) the bad
behaviour of the municipality, including the squandering of the of public
funds on needless litigation and (c) the injustice of allowing the order of
the high court to stand, with the appellant being mulcted in costs.

_________________

N.P. Willis

Judge of Appeal

Appearances:
For Appellant
:
J G Bergenthuin SC

Instructed by:
Bernhard Van der Hoven Attorneys; Pretoria

Rosendorff Reitz Barry, Bloemfontein

For Respondent
:
J A Motsepe (with him M H Mphahlele)

Instructed by:

Malesa Attorneys; Pretoria

Mpobole & Ismael Attorneys, Bloemfontein

SUPREME COURT OF APPEAL OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

FROM

The Registrar, Supreme Court of Appeal

DATE

01 June 2015

STATUS

Immediate

Please note that the media summary is intended for the benefit of the media and does
not form part of the judgment of the Supreme Court of Appeal.

Thom v Ba-Phalaborwa Municipality (20236/14) [2015] ZASCA 95 (01 June 2015)

[1] The SCA today upheld the appeal by the appellant and set aside the order of the court
below.

[2] The appellant who is a businessperson in Phalaborwa had obtained a mandamus against
the respondent to remove a nuisance caused by the blocking and silting of a stormwater
canal between the streets where it conducted its business. As the respondent had failed to
comply with the court order, the appellant proceeded to do the remedial work. When the
respondent tried to get to the site to undertake the work, it found that the appellant had
created a fence which effectively denied it access to the site.

[3] The respondent approached the court below on notice of motion to order the appellant to
remove the fence and grant it access to the site. It alleged that it had no other access point
other than through the appellant’s property. In its answering affidavit the appellant pertinently
disputed this and in fact stated that there are other alternative access points to the site. There
was thus a dispute of fact on an essential aspect of the case.

[4] However, the SCA found further that in fact the appellant had undertaken and finished the
remedial work which the respondent was ordered to execute but failed to do. Accordingly the
SCA found that any order would have no practical effect for the parties. It would be purely
academic.

[5] The SCA invoked the provisions of s 16(2)(a)(i) of the Superior Courts Act 10 of 2013 and
dismissed the appeal and made no order as to costs.