L E Thom (Pty) Limited v Ba-Phalaborwa Municipality

The appellant owned property in Phalaborwa that was flooded due to a blocked stormwater canal on adjacent municipal land. In 2012 the High Court ordered the municipality to remove the nuisance and install proper drainage, authorising the appellant to do the work at the municipality’s cost if it failed to comply. The municipality did not comply, and in 2013 the appellant undertook the remedial work itself. In 2014 the municipality brought an urgent application alleging that the appellant had unlawfully erected a fence preventing its contractors from accessing the canal, and sought a mandamus granting access through the appellant’s property and demolition of the fence. The appellant denied that access through its property was necessary, alleging alternative access points. Despite a serious dispute of fact, the High Court granted the municipality the relief sought. The appellant appealed to the Supreme Court of Appeal.

The appeal was upheld. The High Court’s order was set aside and substituted with an order dismissing the application. Each party was ordered to bear its own costs, both in the High Court and on appeal.

The case reaffirms core principles of South African civil procedure regarding disputes of fact in motion proceedings and underscores that litigants proceed at their peril when seeking final relief on affidavit despite foreseeable factual disputes. It also illustrates the SCA’s approach to mootness under the Superior Courts Act and its willingness to intervene to prevent unfair cost consequences.