Tshwane slammed by high court for ‘contemptible’ behaviour

The City of Tshwane Metropolitan Municipality has been lambasted by the High Court in Pretoria for lodging a frivolous application, with its conduct described as “egregious and contemptible” – as evidenced by many court orders including a contempt of court order.

The city lodged an application for the rescission of a default judgment against it in May 2025 in favour of Interaction Market Services Tshwane (trading as The RSA Group), Subtropico Market Agents and DW Fresh Produce. The matter related to damages arising from power failures at the Tshwane Fresh Produce Market from 19 to 24 January 2023.

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The three companies claimed the damages they suffered were caused by the city’s gross negligence in failing to comply with its statutory duties under the Tshwane Market by-law, the Agricultural Produce Agents Act of 1992, and related rules to provide proper infrastructure including at the Tshwane Fresh Market precinct.

‘Clerical error’

The city, however, contended that its failure to file a notice of intention to defend was a clerical error caused by an incorrect email address being used to dispatch the notice, and that it has a bona fide (in good faith) defence to the claim for the damages.

This defence included issues of:

Causation, and whether the losses alleged are sufficiently closely connected to the city’s conduct for it to be held liable;
Whether intervening events and operational realities broke or weakened the causal chain; and
Whether the pleaded case of the three companies raises material and triable questions concerning wrongfulness and legal duty, including whether it is in line with public and legal policy to impose delictual liability on a municipality for downstream commercial losses alleged to have arisen from a service interruption at the market.

The three companies said no basis exists for rescission of the default judgment, stating that the city had admitted receipt of the summons.

They added the city’s default was due to its own negligence, including its failure to serve a notice of intention to defend.

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In addition, the companies argued that there was no procedural irregularity on their part and no reasonable explanation for the default, with the city having acted with gross negligence throughout.

‘No good cause for rescission’

Acting Judge Nelson Kekana last week dismissed the City of Tshwane’s application with costs, adding that, in his view, it was “very frivolous” for the city to bring this application.

Commenting on the cost award, Kekana said the city took no steps after the clerical error was discovered and that there was an unexplained inaction on the part of the city for a period of 16 months.

He said the city also failed to explain why it did not file its plea.

“The conclusion is strong that there was no genuine intention to defend the matter. Again, proving wilful default on the part of the applicant [the city].”

Kekana noted that  numerous court orders, including a contempt of court order against the city, “shows the egregious and contemptible conduct” on its part.

He ruled there was a wilful default by the city, it had not shown any good cause for a rescission of the default judgment as required by the Uniform Rules of Court, and has no bona fide defence nor prospects of success.

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“It was so unreasonable, unnecessary for the [city] to institute this application, any such punishment against [it] will be warranted.”

Mandamus order

Providing background to the damages claim, Kekana referred to a mandamus application instituted in another case by the Institute for Market Agents and the three companies – where the court, among other things, ruled that the damages occurred as a result of the city’s failure to provide proper electricity and a backup system.

A mandamus is a court order that compels a public authority or corporation to perform a public or statutory duty.

Kekana said the City of Tshwane in that case was also ordered to submit, within 60 days, a draft precinct plan and a final precinct plan within 180 days of the order, but failed to comply.

He said a letter of demand was sent to the city on 23 January 2023, following which the the city, on 26 January 2023, invited the three companies to submit their claims by way of a letter and supporting documentation.

Kekana said the three companies issued and served summons for the delictual claim and damages suffered – but again because of the purported inaction due to some communication mishaps, the matter was argued on 9 May 2025 and the court granted condonation.

He said judgment was granted in favour of the three companies on 21 May 2025, which is the judgment the city was seeking to have rescinded.

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Email error explanation rejected

Kekana described the city’s explanation that a clerical error, caused by the use of an incorrect email address to dispatch the notice of intention to defend, as “an inexcusable inefficiency”.

He said a Mr Mphago, who was handling claims for the municipality, was already aware of the correct email address of the attorneys of record for the three companies.

Kekana added that city was made aware of the error or became aware of the error on 7 November 2024 but did nothing to cure or remedy the situation until the date on which the default judgment was granted.

He said the city admitted it took no steps to rectify its various oversights, and that these concessions could not be ignored in the determination of wilful default.

Kekana said there nothing was brought before the court to explain this inaction or cure the error, and that “the conclusion is strong that there was deliberate inaction” on the part of the city.

Kekana said the city’s application for rescission should fail, because it failed to give an acceptable explanation or show good cause for a rescission order in terms of the Uniform Rules of Court.

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