Durban — The eThekwini Municipality has laid bare its legal challenges in trying to retrieve items belonging to the Durban electricity unit that were attached last month.
The city’s assets were attached as a result of a court case it lost earlier this year, when Daily Double Trading 479 CC, the service provider, was awarded about R30 million.
City Manager Bongumusa Mbhele gave a report back to the eThekwini executive committee on Tuesday on legal steps being taken, the list of assets attached and the value.
According to the report, the City has instructed its attorneys to urgently prepare court papers to petition the Supreme Court of Appeal for leave to appeal the judgment and stay the execution of the warrant should Daily Double persist with further attachment and removal pending the issuing of the petition papers.
It was stated that this was due to Daily Double representatives’ reluctance to give an undertaking to the effect that there was going to be no attachment and removal on Monday, August 29, 2022.
“The municipality’s petition papers were finalised by counsel and signed by the city manager on Sunday, August 28. Daily Double’s legal representatives were served with commissioned but unissued petition papers on Sunday, August 28, and they gave an undertaking pending any action on their part until the close of business on Tuesday, August 30.
“The petition application papers were issued in the Durban High Court on Monday, August 29, couriered to the SCA in Bloemfontein, where they were issued on Tuesday, August 30.
“Thereafter the issued petition application papers were served to Daily Double’s representatives,“ the report stated.
The report stated that immediately after serving the issued petition application papers, the municipality demanded the return of the attached and removed assets by virtue of the effect of the Superior Courts Act.
Daily Double’s representatives undertook to take instructions and revert to the municipality’s lawyers on Wednesday, August 31.
When there was no response by the close of business, the municipality’s lawyers sent a letter on Thursday, September 1, giving Daily Double until 3pm to respond, failing which the municipality intended to approach the court on an urgent basis for appropriate relief.
“Daily Double’s representatives responded later on September 1 with conditions preceding the release and return of the seized municipal assets. The conditions were that the municipality lodge in the sheriff's trust account, an amount of cash equivalent to the value of the seized assets and pay the sheriff’s costs for the attachment, removal, storage and return,” the report stated.
The municipality's representatives wrote back insisting on the unconditional return of the seized assets because of the aforesaid section and gave Daily Double’s representatives until 9am on Friday, September 2 to revert with the final instructions.
“Daily Double’s representatives responded and refused to release the seized assets.”
Mbhele said counsel was instructed to prepare papers to apply for the unconditional release of the seized municipal assets because there was no justification for any payment to be made in relation to a judgment that is subject to leave to appeal since its operation and execution is suspended pending the finalisation of the application. The application papers were prepared and the city manager signed them on Monday, September 5.
The case commenced in July 2017 and was ultimately heard on October 5, 2021.
The judgment was delivered in favour of Daily Double on April 28, 2022, and the municipality was ordered to pay R30m plus interest.
The Sheriff valued the seized items at R3 049 400.
Daily News