EThekwini Municipality has been slammed for taking their multi-million-rand contractual dispute with a service provider to the Constitutional Court, in a move that has been described as an abuse of the court process and the city trying to “out-litigate” contractors.

Daily Double Trading contends that there are no constitutional matters that have been violated in this process. In its responding papers, the company accuses the city of “outright falsehoods” in its affidavits, arguing that the city is creating new legal arguments meant to create the impression that the Constitutional Court has jurisdiction over the matter.

A lawyer representing Daily Double Trading confirmed that they have filed papers in response to the city’s court documents. She declined to comment further.

Daily Double Trading 479, trading as Pholobas Projects, is involved in a R30 million dispute with the municipality. At the centre of the dispute is an agreement struck by the city’s lawyer, identified as Mr Moloi, with Daily Double Trading 479’s lawyer.

The court papers show that the city had cancelled the contracts after an investigation revealed irregularities in how the contracts were awarded. The service provider launched a legal challenge against the cancellation of their contracts.

Moloi engaged with the service provider on behalf of the city and represented that the city was offering a R30m settlement. However, the municipality claims that Moloi did not have the authority to do this and is unaware of who granted him the authority to enter into the arrangement.

A report by The Mercury this week indicated that the city is applying to the apex court to appeal previous judgments that had found in favour of the company. The city argued that its constitutional rights had been violated.

In opposing papers filed in the Concourt, Joseph Ngcobo of Daily Double argued in his affidavit that the municipality’s application should be dismissed, stating that there are no constitutional violations against the municipality in this dispute.

He rubbished the claim that the agreement was irregular, saying it took nearly seven months to negotiate it, and at no point was Moloi’s standing on the matter questioned. He argued that the municipality, after the initial loss at the Pietermaritzburg High Court, has since been trying to raise new arguments that were neither presented in the original case nor during the appeal.

“The municipality has been heard on appeals but is again attempting to obtain leave to appeal from this (Constitutional) court based on these new arguments, including a totally novel one advanced to fit the jurisdictional requirements of this court,” he said.

Daily Double argued that the application should be dismissed on the grounds that the municipality has not satisfied the jurisdictional requirement for leave to appeal in this court, as there is an absence of any constitutional issue.

“There are no arguable points of public importance raised on the pleadings or through the adduced oral evidence that require this honourable court’s attention. The entire foundation of the case presented by the municipality is based on new arguments never raised and presented to the High Court, based on false and deliberately misleading statements by the municipal manager.

“At the outset, it is trite that a constitutional issue cannot be raised for the first time before this (Constitutional) court, but must have been raised in the pleadings before the court a quo. As is evident from what is set out, no constitutional issue was raised either expressly or impliedly on the pleadings or through the adduced evidence before the court a quo.

“It is trite that parties on appeal are bound by the facts and the case as it was presented during the hearing. It is equally true that the appeal court is bound by the record and the issues raised to be dealt with by the parties. An appeal court may not assume jurisdiction which it otherwise lacks in law, for instance, deciding issues which have not been pertinently and expressly raised by the parties before it.”

It argued that the municipality has shown disregard for the court process.

“It is submitted that the municipality is not entitled to special treatment due to the fact that it is part of the government. It has contractual and legal obligations it must comply with and cannot merely attempt, through ill-conceived legal stratagem, to out-litigate contractors,” said Ngcobo’s affidavit.

THE MERCURY