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IN THE HIGH COURT OF SOUTH AFRICA

BOPHUTHATSWANA PROVINCIAL DIVISION

CA NO.: 1667/07

In the matter between:

JONATHAN BOAS MABUNDA 1^ST APPLICANT

S A NONYANA 2^ND APPLICANT

P MAHLANGU 3^RD APPLICANT

W K MABITSELA 4^TH APPLICANT

W MAKENA 5^TH APPLICANT

M O MADIKELA 6^TH APPLICANT

and

THE CITY OF TSHWANE METROPOLITAN RESPONDENT

MUNICIPALITY

APPLICATION

MMABATHO

GURA J

DATE OF HEARING : 26 OCTOBER 2007

DATE OF JUDGMENT : 00 NOVEMBER 2007

FOR THE APPELLANT : MR J. VILJOEN

FOR THE RESPONDENT : MR H.C. BOTHMA

JUDGMENT

GURA J:

Introduction

[1] The applicants are the residents of Winterveldt. They own fairly vast tracts of land and have built houses and other structures on that land. A controversial sale transaction took place between the applicants and the respondent. The applicants have expressed displeasure regarding the amount payable to them as well as the scheduled destruction of some of their structures which the respondent apparently needs to do to facilitate the development of a presidential housing project in that area. The misunderstanding between the parties has been going on for some time now. The brief background relevant to the determination of the issues in this matter is set out below.

Background

[2] In an attempt to protect their rights, the applicants launched an urgent application in this Court on 07 June 2006 for a restraining order against the present respondent. By agreement between the parties, the following order was made by Landman J:

2.1 The respondent is prohibited from destroying the applicants’ houses (as described in the court order);

2.2 The respondent is prohibited from exhuming the bodies from the graves of the applicants;

2.3 The respondent should convey the content of the court order to all contractors and agents employed by it and working on the Winterveldt project.

[3] On 07 September 2007, the applicants brought yet another urgent application against the same respondent for an order in the following terms:

“(1) That this application be heard and adjudicated as an urgent application as envisaged by Rule 6 of the Rules of this Honourable Court and that the normal Rules in relation to service forms and time limits be dispensed with;

(2) That the Mayor of the City of Tshwane in its capacity as representative of the Respondent, alternatively such other representative of the Respondent which this Honourable Court deems fit, be called upon to submit reasons on a date to be fixed by this Honourable Court, why he/she should not be committed to jail for contempt of the Court Order made under case number 758/06;

5. That a Rule nisi, returnable on 18^th October 2007, be issued in terms of prayer (2) above;

5. An order interdicting the Respondent and its agents and contractors from demolishing any of the homes of the Applicants on their properties as specified in the application without producing a written order of this Honourable Court which authorises specifically demolishment of each of such homes;

5. Costs of this application.”

[4] The matter came before me on 25 October 2007. Mr Bothma, for the respondent, took the following points in limine:

4.1 Prayer 4 of the applicants’ prayers relates to issues which were covered by Landman J’s order. The matter is therefore res judicata.

4.2 The applicants have failed to show any urgency in the matter because even in the founding affidavits, there is no specific averment that the matter is urgent.

4.3 The Mayor of the respondent should have been joined as a party to this application.

4.4 There is a material dispute of fact.

In the view I take of this matter, it will only be necessary to deal with the first two points taken by Mr Bothma. I do so below.

Has this Court already pronounced itself on Prayer 4?

[5] Public policy demands that there should be finality in every litigation. Once a final judgment has been given in a particular case, the same parties are prohibited from coming before Court for the same remedy in respect of the same issues (African Farms and Townships Ltd v Cape Town Municipality 1963 2 SA 555 (A); Wright v Westelike Provinsie Kelders Bpk 2001 4 SA 1165 (C)).

[6] According to paragraphs 1 and 2 of Landman J’s order, the respondent is prohibited from:

6.1 demolishing the applicants’ houses. (The description of these houses in the court order is the same as that of the houses in the present application);

6.2 exhuming any bodies from the grave on the applicants’ residential sites.

In the fourth prayer before this Court now, the applicants are asking this Court to prohibit the respondent or its agents and contractors from demolishing any of their homes.

[7] I can see no reason therefore, why the applicants approached this court for the same remedy. Clearly this matter has been adjudicated upon and finalised. The applicants have already been granted essentially the same order that they now seek in Prayer 4. It is therefore res judicata.

Is there urgency in respect of Prayer 2?

[8] An urgent application primarily leads to the abridgment of times which have been prescribed by the Rules, and a departure from established filing and sitting times of the Court (Luna Meubel Vervaardigers (Edms) Bpk v Makin (t/a Makin’s Furniture Manufacturers) 1977 (4) SA 135 (W) at 136H). Consequently, the applicant must set out facts in its founding affidavit which, in its opinion, render the matter to be urgent, and, secondly, why it cannot get the desired remedy through an ordinary hearing in due course. See Luna Meubel case at page 137 F.

[9] Mr Viljoen, for the applicant, conceded that no urgency has been proved. He argued however that the balance of convenience dictates that the application for the contempt proceedings and for the interdict should be adjudicated upon at the same time. I am satisfied that there is no justification for bringing these two separate applications in Court as one application. There is, accordingly, no urgency with regard to the second prayer, which is about committing the Mayor or some senior official of the respondent to prison for their apparent disregard for the Court order.

Costs

[10] The Judge President was seized with this application on 20 September 2007. At that time, the applicants’ papers were not yet in order in the sense that some of them were not even properly authenticated. This left the applicants with no choice but to seek the indulgence to have the matter postponed so that their papers could be attended to. Since the applicants were not prepared to tender costs, costs were reserved. Having considered all the facts and issues relating to the appearance on 20 September 2007 and the reason for the postponement, I am satisfied that the applicants must bear the costs of that appearance. As for the rest of the costs, the respondent is the successful party and the costs must, therefore, follow the result.

[11] In the result, the application is dismissed with costs, such costs are to include costs of 20 September 2007.

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SAMKELO GURA

JUDGE OF THE HIGH COURT

APPEARANCES

For the Applicants : Nonyane Attorneys

C/O Kgomo Mokhetle & Tlou

KMT Building No. 56

Shippard Street

MAFIKENG

2745

For the Respondents : Webber Wentzel Bowens

10 Fricker Road

Illovo Boulevard

JOHANNESBURG

2196

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