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

The appellant owned property at 15 Von Wielligh Street, Phalaborwa Extension 1, Limpopo Province. In 2012, the property was flooded when storm water could not flow away because the respondent municipality's adjacent land had become overgrown and the stream was blocked by vegetation. On 17 October 2012, the North Gauteng High Court (Kubushi J) granted an order requiring the municipality to remove the nuisance and undertake remedial work. The municipality failed to comply despite numerous reminders. The appellant then contracted Rimiro Construction to undertake the remedial work in October 2013 pursuant to the court order. In March 2014, the municipality attempted to send its own service provider to the site, but alleged the appellant had unlawfully erected a fence denying access. The municipality brought an urgent application for demolition of the fence and access through the appellant's property, claiming this was the only access point. The appellant denied this, alleging there were alternative access points through Potgieter Street and other adjacent properties.

• Whether final relief should be granted in motion proceedings where there is a genuine and serious dispute of material facts
• Whether the court should have referred the matter for oral evidence or trial when facts were genuinely disputed
• Whether an appeal is moot when the subject matter has been resolved and the decision sought will have no practical effect
• Whether costs should be awarded where both parties failed to alert the court that the remedial work had been completed

The appeal was upheld and the order of the court below was set aside and substituted with an order dismissing the application. Each party was to bear its own costs in both the high court and the appeal.

Where an applicant seeks final relief by notice of motion and has reason to believe that facts essential to the success of the claim will probably be disputed, the applicant chooses that procedural form at its peril. A court should not grant final relief in motion proceedings where there is a genuine and serious dispute of material facts without either referring the matter for oral evidence or to trial. An appeal may be dismissed under section 16(2)(a)(i) of the Superior Courts Act 10 of 2013 when the issues are of such a nature that the decision sought will have no practical effect or result. However, where dismissing a moot appeal would cause manifest unfairness (such as leaving a party burdened with an adverse costs order based on an erroneous decision), the court may uphold the appeal and set aside the incorrect order.

Willis JA, in a partially concurring judgment, expressed the view that it was the aggregate of several considerations rather than any single factor that justified the order: (a) the obviousness of the error in the high court's decision; (b) the bad behaviour of the municipality, including squandering public funds on needless litigation; and (c) the injustice of allowing the high court order to stand with the appellant being mulcted in costs. The majority also commented that both parties were remiss in failing to conduct even elementary investigation that would have alerted them that the remedial work had been completed, which would have avoided unnecessary appearance and wasted costs. The court noted its concern about the proliferation of appeals that have no prospect of being heard on the merits as the order sought would have no practical effect, referring to previous cases expressing similar concerns.

This case reinforces important principles regarding motion proceedings in South African civil procedure. It emphasizes that applicants who seek final relief by notice of motion when facts essential to their claim are likely to be disputed choose that procedure at their peril. The case reiterates the principle from Room Hire Co and Plascon-Evans that courts should not grant final relief where there is a genuine dispute of material facts without hearing oral evidence or referring the matter to trial. It also illustrates the application of section 16(2)(a)(i) of the Superior Courts Act 10 of 2013 regarding moot appeals, while demonstrating judicial discretion to nevertheless hear such appeals where dismissal would result in manifest unfairness. The case also highlights courts' concerns about the proliferation of appeals with no practical effect and the duty of parties to investigate and inform courts when matters become academic.