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FREE STATE HIGH COURT, BLOEMFONTEIN

REPUBLIC OF SOUTH AFRICA

Case No: 963/2021

In the matter between:

MATJHABENG LOCAL MUNICIPALITY                            APPLICANT

and

MEDIA NEWS (PTY) LTD                                                   RESPONDENT                    

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JUDGMENT BY:                  MOLITSOANE, J

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HEARD ON:                         06 MAY 2021     

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DELIVERED ON:                 19 MAY 2021

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[1]       This matter was enrolled in the unopposed roll. The applicant seeks that the appointment of the respondent and the service delivery agreement concluded by the applicant and respondent on 18 May 2018 to be declared unlawful and null and void, alternatively, the said appointment and service delivery be set aside.    

[2]       During the hearing of this application, I raised a concern about the service of the notice of set down with Counsel for the applicant. Counsel informed me that according to her instructions the date of the hearing was indeed communicated to the respondent and undertook to provide proof at a later stage before final adjudication of this matter. It is on that basis that I allowed her to proceed with this application.

[3]      It needs to be mentioned that the respondent was at the initial stage legally represented. Upon service of the application the respondent filed the notice to oppose through its attorneys. About a month later the respondent filed a notice of withdrawal of intention to oppose and in the said notice also indicated that the parties have reached a settlement. 

 [4]      The applicant reacted to this Notice of Withdrawal by sending correspondence by email on 16 April 2021 to the respondent’s attorneys of record. I quote the said email in full:

           “Your notice to withdraw as attorney of record refers.

            Kindly take note that the parties have not reached a settlement.

            As explained to you in your telephone conversation your client has

            submitted a proposal directly to the Municipality for future working

            Relationship. Your client’s contract with Matjhabeng has lapsed on 8 April 2021. We will now proceed to enrol the matter in order to finalise the Application.

            Should you not agree with the contents hereof you are kindly requested to urgently furnish us with your client’s application for     condonation and late filing of an opposing affidavit.

            Should we not receive the above mentioned by Monday 19 April 2021 we will accept that you consent to the matter be enrolled and it be made a Court Order.”

[5]       Following this letter the respondent did not file the opposing affidavit. Instead the attorneys of record of the respondent withdrew from the proceedings. The notice of withdrawal as attorneys of record as well as the notice of set down were, however, defective in that none of them were served on the respondent. As indicated above this defect was pointed to Counsel. As undertaken, the respondent filed proof by way of an affidavit deposed to by its CEO. He confirmed that the notice of set down was served on the erstwhile attorneys of record of the respondent although he had not received it. He, however, confirmed under oath that he does not intend to oppose the application. It is my considered view that insisting on the proper service of this application would serve no purpose in view of clear indication of non-opposition by the respondent, save to delay the finalisation of this application. Having regard to the papers filed of record I am of the view that the applicant has made out a case for the relief sought. I make the following order:

ORDER

1.        The applicant’s failure to bring this application and to seek the relief claimed hereunder, as soon as reasonably possible after discovery of the unlawfulness of the appointment of the respondent and service delivery agreement sought to be set aside, is condoned.

2.        It is declared that the appointment of Respondent – and the Service Delivery Agreement concluded by Applicant and Respondent on 18 May 2018 for the administration, control, monitoring and developing of outdoor advertising and implementation of the Municipality’s by-laws relating to outdoor advertising and outdoor advertising policies and the collection of monies from advertisers in respect thereof be set aside.

3.        That the respondent be immediately and forthwith interdicted and restrained from performing and/or carrying out the functions/services identified in annexure “FA1” to the founding affidavit and any activities in respect of billboards and advertisements within the Applicant’s municipal boundaries.

4.        There is no order as to costs.

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                                                                       P.E. MOLITSOANE, J

On behalf of the Applicant:          Adv. J.Mitchley

Instructed by:        

Hill McHardy and Herbst

BLOEMFONTEIN

On behalf of the Respondent:     No Apperance

News Media (Pty) Ltd.

Room 41, the Strip,

314 Stateway

MATJHABENG.

           

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