CoJ asks judge to withdraw ‘erroneous’ judgment

The City of Johannesburg (CoJ) has taken the highly unusual step of formally requesting Acting Judge Stephen van Nieuwenhuizen to withdraw “the erroneous judgment” dismissing with punitive costs its application for summary judgment against a company that is allegedly in arrears on its electricity account for a property it owns.

CoJ director of communications and stakeholder engagement for group finance Kgamanyane Maphologela sent a letter to Moneyweb on Thursday stating that the CoJ’s legal team has been instructed to take this action and cited the principle of “fuctus [functus] officio” following the May 2024 order.

“Should this request not be honoured, we are prepared to pursue a rescission application to overturn the flawed judgment,” he said.

In the context of a court, ‘functus officio’ means that a court has no authority to re-examine a final decision it has made on a matter.

This means that once a judgment has been given, the judge is ‘functus officio’ and cannot change their decision, although other courts of appeal can question the decision.

Maphologela sent the letter to Moneyweb in response to an article it published on 29 October 2024 about the judgment and informed Moneyweb about the action it has instructed its legal team to take in response to the judgment.

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‘Setting the record straight’

The damning judgment handed down in the High Court in Johannesburg and the article highlighted problems with the CoJ’s accounting system and the dispute between the CoJ and Mir-Air Prop (Pty) Ltd, the owner of a property in Stormill Extension 3, which claimed the city conjured up inflated, excessive and contrived “false actuals” for electricity charges.

The application by the CoJ for summary judgment against Mir-Air for R1 677 739.34 in electricity charges, interest of 10.75% a year on this amount, and the costs of its court application was dismissed, with Judge van Nieuwenhuizen issuing a punitive costs order against the CoJ.

Maphologela said the CoJ wishes to set the record straight regarding “the inaccuracies reported in Roy Cockayne’s [sic] article about the case between Mir-Air and the CoJ”.

“The article creates a misleading narrative that may unjustly erode public confidence in the City’s accounting and billing systems,” he said.

“It is essential to note that the article contains factual inaccuracies that contribute to the misrepresentation of the City’s financial operations.”

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The article quoted various sections of Judge van Nieuwenhuizen’s judgment.

This included Van Nieuwenhuizen stating:

• It is clear the CoJ “has not the faintest idea of what is going on on the ground and that its accounting system seems to take cognisance of fictitious facts”; and
• It is highly doubtful that the deponent to the CoJ’s verifying affidavit “has the slightest knowledge of what is really going on in the accounting systems, let alone what is going on in terms of electricity supply in reality”.

The deponent to the CoJ’s verifying affidavit was Tuwani Ngwana, who is employed by the CoJ as a legal advisor.

Among other things, Ngwana said in the verification affidavit that the quantum in the particulars of claim of R1 677 793.24 in respect of Mir-Air’s liability for electricity as at 11 December 2023 had jumped from the original figure stated on the account number for the property to R4 447 841.07.

Maphologela said the CoJ seeks to address the flawed process that led to the judgment in question, as outlined below:

• The CoJ initiated legal action to recover overdue municipal electricity payments from Mir-Air and sought a summary judgment, which Mir-Air contested by highlighting alleged discrepancies between meter readings in the photographic evidence provided, thus requesting leave to defend on those grounds.
• During the hearing on 13 May 13 2024, the presiding Judge acknowledged the case’s complexity, noting that both parties presented conflicting narratives. The Judge recommended discussions aimed at narrowing the outstanding issues before the trial.
• Acting on this recommendation, the CoJ engaged with Mir-Air’s legal representatives and an agreement was reached whereby both parties informed the court that leave to defend should be granted, with costs reserved for trial. This agreement was formalised and documented in a court order.
• Mir-Air’s subsequent filing of a discovery notice further substantiates this agreement.
• However, we [CoJ] are significantly concerned that Acting Judge Stephen van Nieuwenhuizen issued a contradictory judgment on 1 October 2024.
• The judge dismissed the summary judgment and awarded costs on a punitive scale, contrary to the prior court order dated 17 May 2024, which granted leave to defend while reserving costs.

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Judge’s actions ‘concerning and inconsistent’

Maphologela said the CoJ found Van Nieuwenhuizen’s actions to be “concerning and inconsistent”.

“Issuing a revised judgment months after the initial order is procedurally irregular, especially considering the May 2024 ruling that that granted leave to defend.

“It is important to clarify that granting leave to defend does not validate the defendant’s [Mir-Air] claims. It merely sets the stage for a full and fair trial.

“Consequently, our legal team has been directed to take action regarding this matter,” he said.

Maphologela said the CoJ hopes this clarification “corrects public misunderstanding and underscores that the allegations and narrative presented in the media regarding this matter remain unproven and subject to judicial review”.

Although the CoJ said it wished to set the record straight regarding “the inaccuracies” reported in the article about the case, it did not refer in the letter to any specific inaccuracies in the article on the judgment.

The article published by Moneyweb was based only on the judgment handed down by Acting Judge van Nieuwenhuizen on 1 October 2024.

This article was republished from Moneyweb. Read the original here.