INTRODUCTION

In a striking judgment, Tedstoneville Flats CC and 10 Others v Maple View Investments (Pty) Ltd and Others, case number LCC209/2021B, the Land Court has delivered a robust message on the importance of transparency and accountability in public interest litigation involving municipalities. The case, in which the City of Ekurhuleni was the sole opposing Respondent, highlights the Court’s firm stance against deliberate concealment of material facts, particularly where such silence undermines justice and delays proceedings.

The judgment holds that municipalities cannot moot accountability by hiding behind procedural technicalities, emphasizing that costs will be awarded where a party engages in evasive litigation tactics.

BACKGROUND: THE TEDSTONEVILLE LAND DISPUTE

This application (for a determination as to costs) was launched by the same Applicants as cited in the Main Application. In the Main Application, the Applicants sought urgent interdictory relief against the relocation of occupiers to the Tedstoneville Land. The Honourable Court had already partially vindicated the Applicants’ rights (part A of the Main Application) in a Court Order handed down by Honourable Judge Ncube on 16 March 2023.

Part A of the Main Application sought to urgently stay the relocation of the occupiers pending the finalization of the Applicants’ application to review the Third Respondent’s (the City’s) decision to relocate the evictees to the Tedstoneville Land. This review was to be adjudicated as Part B of the Application.

However, before the Part A Judgment was delivered, the City internally decided to no longer pursue the relocation to Tedstoneville.

Crucially, this (second) decision was never disclosed to the Court, nor to the Applicants. The City’s legal representatives maintained that any disclosure of this “change of mind” to the Court, could only be done through a formal application by the Applicants to re-open the case.

THE CITY’S CONCEALMENT: A TACTICAL SILENCE

The City’s failure to communicate its abandonment of the relocation plan to the Court or the Applicants effectively mooted the Review Application that formed Part B of the proceedings. This concealment was not a mere oversight – it was a deliberate decision to withhold material facts that would have dramatically affected the course and outcome of the litigation.

Despite knowledge of this internal decision from as early as June 2022, the City withheld this information. Fast-forward to January 2023, the Applicants became aware of this decision through the City having put up a Notice at the property (The Applicants themselves then proceeded to informed their legal team). The Applicants’ attorneys requested information from the City’s attorneys regarding this internal decision, recorded on a Memorandum. No response was forthcoming from the City’s attorneys. The Applicants’ attorneys proceeded to submit same to the Court, in order to request direction from the Court, given that this (second) decision materially affected the existing litigation, for which a Judgment was still reserved and outstanding. The City’s attorneys then criticized the Applicants’ disclosure when they sought to put this before the Court, stating that the Applicants should have either sought direction from the Court or brought an application to re-open the case, notwithstanding that the Applicants’ attorneys’ correspondence addressed to the Court sought to do exactly this – obtain direction.

Shortly thereafter, the Judgment was handed down in relation to Part A of the proceedings, with costs reserved for determination upon the launching of Part B of the proceedings, with costs reserved for determination upon the launching of Part B of the proceedings. However, at this stage, Part B of the proceedings (the review application) had become moot because the decision that stood to be reviewed had become moot and pursuing such review would have been a purely academic exercise, given that the City had abandoned its initial intention to relocate the occupiers to the Tedstoneville Land.

This forced the Applicants to re-open the case in relation to the costs of Part A of the proceedings, which the Applicants had successfully argued. The City opposed this, arguing that the Court had no jurisdiction to revisit costs as an Order had been made in which costs were reserved, and that no exceptional circumstances warranted a costs order against it.

LEGAL FRAMEWORK: COSTS, JURISDICTION, AND RULE 42

Central to the Court’s reasoning was the application of Rule 42 of the Uniform Rules of Court, which permits courts to correct “consequential matters” in an order when new facts arise before or immediately after judgment.

The Court emphasized that costs related to Part A were reserved for determination after the Review Application concluded. Due to the City’s own conduct to no longer pursue the relocation of the occupiers, the Review became moot without the costs issue ever being finalized.

The Court found it appropriate to supplement its original order to properly adjudicate costs without forcing the Applicants to relitigate the entire matter. The City’s reliance on functus officio (the principle that a court cannot revisit final orders) was rejected, given the clear intention to reserve costs for later determination. Precedents such as Firestone SA v Gentiruco and West Rand Estates v New Zealand Insurance explicitly allow supplementation of accessory orders like costs when such matters were deferred or inadvertently omitted.

COURT’S ANALYSIS: HOLDING THE CITY TO ACCOUNT

The Court was unequivocal in rejecting the City’s narrow and self-serving interpretations of procedural rules and jurisdiction. It recognized the City’s conduct as reckless and deliberately evasive, noting that failing to disclose a fundamental change in relocation plans created exceptional circumstances justifying a costs award.

The City’s argument that it acted in “good faith” by fulfilling constitutional duties was undermined by its deliberate withholding of critical information. The Court stressed that a litigant’s ethical obligations extends beyond adversarial fairness to full openness and disclosure to the Court itself.

The Court highlighted that attempts by the City to shift the blame onto the Applicants for the delay in bringing this Application (for costs) were misplaced, particularly when the City alone controlled access to the crucial internal decision. The Court also took into account the extensive and unnecessary prolongation of the record due to the City’s tactics, observing that such conduct – especially when public funds are involved – warrants a clear judicial response.

IMPLICATIONS: TRANSPARENCY AND ACCOUNTABILITY IN PUBLIC LITIGATION

This judgment sends a powerful message to municipalities and other public bodies engaged in public interest litigation.

First, it affirms that Courts will not tolerate strategic silence or the concealment of material facts designed to circumvent judicial scrutiny. Second, it underscores the role of costs orders as a vital tool to enforce accountability, discourage litigation abuse, and ensure public funds are used responsibly.

Moreover, the judgment reminds litigants that ethical obligations require full disclosure to the Court, reinforcing the principle that justice depends on transparency and candour from all parties, particularly state actors entrusted with the interests of the public.

CONCLUSION

The Tedstoneville Flats judgment is a compelling example of how Courts confront municipal evasion in litigation, ensuring that accountability cannot be evaded through strategic silence. By supplementing its initial Order to award costs against the City of Ekurhuleni, the Court emphasized that procedural technicalities cannot shield public bodies from the consequences of their conduct.

For practitioners, this case illustrates the importance of vigilant enforcement of disclosure duties and the strategic use of Rule 42 to address gaps in Orders caused by post-judgment developments. Above all, it highlights the judiciary’s critical role in safeguarding public interest litigation from being undermined by evasive tactics and procedural gamesmanship in litigation.