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MBABANE – The Supreme Court has dismissed a businessman’s application for leave to appeal an order to pay costs to the Municipal Council of Mbabane (MCM).
The costs in question related to the matter in which Sikhumbuzo Matsebula instituted proceedings after his driveway had been blocked by a businessman, Mandla Shongwe, at Makholokholo.
The costs, according to the applicant, Matsebula, amounted to E97 000. The application for leave to appeal was dismissed by Judge Magriet Van Der Walt.
Matsebula and one Bhekiwe Hlophe were once appointed councillors by the Minister of Housing and Urban Development, Prince Simelane, and the MCM challenged those appointments, arguing that the minister did not have powers to appoint councillors to fill casual vacancies.
Prior to approaching the Supreme Court, Matsebula had taken Shongwe and the MCM to the High Court and he accused him of blocking the driveway to his property.
At the High Court, Matsebula wanted, among other prayers, the court to order Shongwe and/or any person acting on his behest to hereby stop digging and/ or removing the fence from applicant’s home and that the respondent (Shongwe) and/ or any person acting on his behest hereby remove forthwith any material blocking the right of way connecting applicant’s premises from the old main entrance to the main road.
Matsebula contended that his contention regarding the issue of costs was two-fold. He said the MCM was an agent of the Ministry of Housing and Urban Development, which is a government department, and costs should not, therefore, have been awarded against him. He also contended that he had been partially successful in that he had been granted the interdict he was seeking.
The order that Matsebula wanted to appeal was issued by Judge Cyril Maphanga on October 5, 2022. The order stated that Matsebula had failed to establish a cause of action in so far as setting out jurisdictional grounds for the grant of a final interdict as no clear right had been proven.
Encroachment
Judge Maphanga also ordered the Municipal Council of Mbabane to take prompt action to deal with the encroachment and source of nuisance identified to have been introduced by the businessman, Mandla Shongwe, carrying impediments to the concrete road occupied the latter’s block yard and access road to Matsebula’s flats and adjacent lineaments.
The judge further ordered Matsebula to pay costs on an ordinary scale to MCM. Matsebula filed an application for leave to appeal and cited the MCM as the only respondent.
In his application to the Supreme Court, Matsebula submitted that the municipal council should not be seen to engage in behaviour that suggests that it was capable of raising funds through court processes.
He argued that the MCM waited for three years to raise a point of law that disposed of the matter after having been served with the initial notice of application, court order, answering, replying and confirmatory affidavits in July 2019. He said the point of law was raised orally and an ex-tempore order was issued on the October 5, 2022 by Judge Maphanga.
“Since the point of law was not pleaded, I did not get the chance to know respondent’s reasons for waiting all these three years before raising such point of law. If such conduct can be allowed to go unchecked, as the court a quo did, courts can be used by litigants as a forum where money can be raised,” Matsebula argued.
He narrated that on October 8, 2022, he received a letter from the MCM’s attorneys dated October 7, 2022 confirming that his initial application was dismissed with costs on the ordinary scale.
He submitted that the various past court appearances since 2018 before former Judge Sipho Nkosi, the mini trial conducted leading to the events before Judge Maphanga, who took over the matter, the MCM’s costs were in the region of E97 000, payable in four instalments, ‘failing
which I must expect a comprehensively prepared bill of costs which will be eventually executed against me’.
“The court a quo (High Court) granted a similar prayer on the October 5, 2022 to the effect that respondent (MCM) must take measures to remove the encroachments and nuisance introduced by Mandla Shongwe, the first respondent in the court a quo, on the concrete road through the block yard. Therefore, if the court a quo was able to grant some of the prayers that I sought, then there was no need to grant costs against me.
Interim
“The court a quo at the time the matter was still before Nkosi J, as he then was, granted the interim relief. However, the first respondent Mandla Shongwe continued to disobey the said interim order and then then presiding officer granted another interim order with similar prayer that all activities should be stopped with immediate effect,” said Matsebula.
He submitted that Shongwe defied the order and he instituted contempt proceedings.
“I should not be penalised for embarking on processes that had to be genuinely initiated. Costs for such contempt of court proceedings were supposed to be borne by the said Mandla Shongwe and not me.
“It is plain to me that His Lordship was not well versed with the history of the matter and he was not supposed to concern himself with granting the cost order to include the days he was not the presiding officer,” Matsebula said.