City claims the summons fell through ‘the cracks’ as it was being sued for seven other claims as a result of the sinkhole.
The City of Tshwane Metropolitan Municipality has failed in its attempt to rescind two high court default judgments ordering it to pay Crawdaddy’s Good Food & Pub Co in Centurion R63 961.25 for loss of profit/income as a result of a sinkhole that appeared in front of the restaurant’s premises.
Default judgments were granted in the Pretoria High Court on 22 December 2022 in favour of Beknor CC, trading as Crawdaddy’s, which found the Tshwane metro was liable for the loss, and on 17 February 2023 when an order was granted for the amount claimed for damages.
The Tshwane metro settled the damages amount after the sheriff attached the city’s bank accounts for the amount owing.
Judge NV Khumalo, in a judgment handed down earlier this month but which has only now become available, dismissed the metro’s rescission application with costs.
The metro alleged the reason for its default was due to the fact that at the time the default orders were granted, it was also sued for seven other claims as a result of the sinkhole and “this particular summons fell within the cracks”.
It further alleged the judgments were erroneously granted in favour of Crawdaddy’s as there were facts the court was not aware of when making the orders.
ALSO READ: Millions needed to fix Tshwane sinkholes
Judgments valid, default ‘wilful’
Crawdaddy’s disputed that the judgments were erroneously granted.
It further argued that the metro was in wilful default when it failed to defend the matter and does not have a bona fide defence against its claim, and was therefore not entitled to a rescission of the judgments.
Khumalo said the Tshwane metro did not dispute a number of facts alleged by Crawdaddy’s regarding the city’s awareness of the court proceedings, from their commencement until default judgments were obtained.
“It therefore cannot be denied that the city was afforded the procedurally regular judicial process to make sure that it exercises its right to be heard. It did not.
“This is the context in which the city had to explain its default. It had in that regard created serious hurdles to overcome in order to dispel the presumption of wilfulness of its conduct.”
“The casual or poor explanation that there were a lot of complaints resultant from the same sinkhole at the time is clearly unreasonable and insufficient to dispel its obvious disregard of the legal processes wilfully,” she said.
Khumalo added that the city’s absence from the court proceedings was its own choice and “it was only jolted to action in terms of instituting legal proceedings long after it was notified of the judgment and only when the sheriff attached the judgment debt amount in its bank account in execution of the order”.
“It has stated that the orders affect the city adversely and its ability to deliver on its constitutional and legislative mandate severely compromised. This is its only worry not a wish to litigate and see the matter through,” she said.
ALSO READ: Tshwane’s road crisis deepens amid potholes and sinkholes
‘Insufficient funds’ is not negligence, says metro
The Tshwane metro claimed that the estimated costs for rehabilitation of that sinkhole was R25 million – when the budget allocated for repairs of all sinkholes for the 2017/18 year was R4.5 million, which was obviously insufficient to cover the rehabilitation costs.
It further claimed that in the following year it was able to source the R25 million required, which enabled the city to proceed with the roads and transport rehabilitation.
The city argued that at no point did it not fix the sinkhole at the time when it had the means to do so and that not having sufficient funds does not amount to negligent conduct.
ALSO READ: Centurion’s sinkhole problem digs deeper hole in city’s pockets
City should’ve spoken up sooner
Khumalo said the absence of averments by the city that may have been relevant at the time when the court was seized with the adjudication of the allegation of the city’s negligence/failure to fulfil its duties towards maintenance of the roads and rehabilitation of sinkholes within a reasonable time “cannot render the order granted erroneous, on the basis of absenteeism of the city”.
“The city when it ignored the notices was well aware of the relief sought and that it was well within the bounds of what this court was competent to grant if a case for negligence was established.”
She said the city blames or relies on its working arrangements, internal systems and plans plus insufficient budget to explain its failure to fulfil its duties to repair the sinkhole within a reasonable time.
ALSO READ: Sinkholes and fallen trees cause havoc in Tshwane
Value of city’s expert reports ‘questionable’
She said the city’s denial that the sinkhole had anything to do with the maintenance of the road is reliant on reports it alleges were by experts who conducted a study or an assessment on the cause and the extent of the sinkhole.
The city said these reports came to a conclusion the actual cause of the sinkhole was not because of water or stormwater pipes and has nothing to do with lack of maintenance of either the road or the stormwater pipes.
“Although the evidence forms the city’s main defence, its credibility is not satisfactory as it is not collaborated or confirmed by the authors of the reports.
“It has been presented as hearsay without confirmatory affidavits. One such report, the source is unidentifiable and its evidentiary value questionable.
“Such quality of evidence does not inspire sureness and any prospects of success. It therefore lacks any bona fides.”
Khumalo said the system and plan the city claims to have caused the delay in maintenance is its own internal system, which was devised when it was aware of the occurrences of sinkholes and the city’s duty to maintain and rehabilitate or repair them within a reasonable time.
“It is trite law that a party cannot have a validly obtained judgment set aside based on evidence whose authenticity is not confirmed and was or ought to have been available to it before judgment,” she said.
This article was republished from Moneyweb. Read the original here.
