Archiways Skye (PTY) Ltd v South African National Roads Agency (5302/2021P) [2023] ZAKZPHC 5 (26 January 2023)
- Citation
- [2023] ZAKZPHC 5
- Status
- Judgment
- Jurisdiction
- South Africa
- Court
- Kwazulu-Natal High Court, Pietermaritzburg
- Panel
- P C Bezuidenhout
- Case number
- 5302/2021P
More details
- Court
- Kwazulu-Natal High Court, Pietermaritzburg
- Panel
- P C Bezuidenhout
- Case number
- 5302/2021P
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The court found that the deletion of clause 3 in the lease agreement did not affect the material terms of the contract, as the subject matter of the tender remained unchanged. The applicant's criticism regarding the commencement date and the deletion of clause 3 was addressed in the original judgment, and the court held that vacant possession was given to the applicant. The decision in Firechem Free State did not assist the applicant, as the facts were distinguishable. After considering all submissions, the court concluded that there were no reasonable prospects of another court arriving at a different conclusion, and therefore, leave to appeal was refused.
Court disposition
Application for leave to appeal refused with costs, including costs of senior counsel where applicable.
Orders
- The application for leave to appeal is refused.
- Costs are awarded against the applicant, including costs of senior counsel where applicable.
02
Material facts
Parties
Archiways Skye (PTY) Ltd
Applicant Counsel: Mr Harpur SCSouth African National Roads Agency SOC Limited
Respondent Counsel: Mr K GoundenCamry Trading Enterprises (PTY) Ltd
Third Party Counsel: Mr Dickson SC03
Procedural history
Posture
Leave to Appeal / Application for Leave to Appeal After Judgment
04
Questions and positions
Legal issues
- 01
Whether the deletion of clause 3 in the lease agreement materially affected the contract and the applicant's rights.
- 02
Whether the wrong contract was relied upon in the original judgment, warranting leave to appeal.
- 03
Whether there are reasonable prospects of success on appeal.
Party arguments
- Applicant
- The applicant argued that the wrong contract was relied upon throughout the proceedings and in the judgment, referencing Premier Free State and Others v Firechem Free State (Pty) Ltd. It submitted that only the tender document should have been considered, and the deletion of clause 3 in the lease agreement was material to its case. The applicant contended that these errors provided sufficient grounds for leave to appeal.
- Respondent
- The respondent maintained that the deletion of clause 3 did not affect the material terms of the contract, as the subject matter of the tender remained unchanged. It argued that vacant possession was given to the applicant, and the commencement date for rental was correctly determined. The respondent asserted that there were no reasonable prospects of success on appeal, as the judgment had properly addressed all relevant issues.
05
Court’s reasoning
Legal principles
- 01
Section 17(1) of the Superior Courts Act
Leave to appeal should be granted only if there are reasonable prospects of success or compelling reasons for the appeal to be heard.
- 02
Ramakatsa & Others v African National Congress & Another (2021) ZSCA 31
The prospects of success must be reasonable, not remote; a court of appeal must be able to reasonably arrive at a different conclusion.
- 03
Premier Free State and Others v Firechem Free State (Pty) Ltd 2000 (4) SA 413 (SCA)
Where no draft contract accompanies tender documents, a contract must be drawn up and signed after the tender is awarded; the terms must be clear and comparable.
- 04
Caracto (Pty) Ltd v Independent Advisory (Pty) 2020 (5) SA 35 (SCA); Smith v S 2012 (1) SACR 567 (SCA)
The test for leave to appeal is whether there are reasonable prospects of success or conflicting judgments.
06
Ratio, limits and disposition
Ratio decidendi
The court found that the deletion of clause 3 in the lease agreement did not affect the material terms of the contract, as the subject matter of the tender remained unchanged. The applicant's criticism regarding the commencement date and the deletion of clause 3 was addressed in the original judgment, and the court held that vacant possession was given to the applicant. The decision in Firechem Free State did not assist the applicant, as the facts were distinguishable. After considering all submissions, the court concluded that there were no reasonable prospects of another court arriving at a different conclusion, and therefore, leave to appeal was refused.
Obiter and limits
- The portions of the tender document deleted in the lease agreement did not affect the material portions of the contract.
- Even if clause 3 had not been deleted, it would not have assisted the applicant as vacant possession was given.
- Further submissions in the application for leave to appeal were already addressed in the judgment and required no further expansion.
Court disposition
Application for leave to appeal refused with costs, including costs of senior counsel where applicable.
- The application for leave to appeal is refused.
- Costs are awarded against the applicant, including costs of senior counsel where applicable.
Source and reliance status
Kwazulu-Natal High Court, Pietermaritzburg
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
Kwazulu-Natal High Court, Pietermaritzburg
Judgment
IN THE HIGH COURT OF
SOUTH AFRICA
KWAZULU-NATL DIVISION,
PIETERMARITZBURG
CASE NUMBER: 5302/2021P
In the matter between:
ARCHIWAYS SKYE (PTY)
LTD
APPLICANT
And
THE SOUTH AFRICAN
NATIONAL ROADS AGENCY
RESPONDENT
SOC LIMITED
CAMRY TRADING ENTERPRISES (PTY) LTD
THIRD PARTY
JUDGMENT ON
APPLICATION FOR LEAVE TO APPEAL
BEZUIDENHOUT J:
[1] Applicant has brought an application for leave to appeal against the whole of the judgment in the above matter. Heads of argument were filed by Respondent and the Third Part but a letter was received from Applicant that it would not be filing heads of argument as its grounds of appeal fully set out the reasons for the application. On the day of the hearing it presented notes to Respondent’s heads of argument.
[2] At the commencement of the hearing Mr. Harpur SC on behalf of Applicant informed the Court that the decision of Premier Free State and Others v Firechem Free State (Pty) Ltd 2000 (4) SA 413 (SCA) has come to his attention and applying the judgment therein it is clear that the wrong contract was relied upon, it cannot be ignored and only the tender document should be considered. It was therefore submitted that the wrong contract was at all times referred to by Respondent and accordingly also in the judgment and on that basis alone leave to appeal should be granted.
[3] The test in deciding to grant leave to appeal or not is set out in section 17(1) of the Superior Courts Act can be summarised as that there are reasonable prospects of success or some compelling reason for it to be heard or conflicting judgments. In this matter the test is whether there would be reasonable prospects on appeal. Caracto (Pty) Ltd v Independent Advisory (Pty) 2020 (5) SA 35 (SCA), Smith v S 2012 (1) SACR 567 (SCA).
[4] The prospects must not be remote but a reasonable chance of succeeding: Can a court of appeal reasonably arrive at a different conclusion? Ramakatsa & Others v African National Congress & Another (2021) ZSCA 31.
[5] In the Firechem judgment no draft contract accompanied the tender documents. It was set out therein that a contract had to be drawn up between the parties. A contract will then at a later stage be signed after the tender had been awarded. This was due to the fact that Firechem had previously negotiated with the province to supply it with cleaning materials but it was then decided that there had to be a tender before any contract could be given to Firechem. There were accordingly no precise terms which were fixed in the letter of acceptance. It was held therein that the requirement was that the offers made must be comparable with each other. The import of the tender must not be tucked away. In this case it was a fixed quantity contract and if it was known other tenders may have been submitted.
[6] In my view the portions of the tender document which was deleted in the lease agreement which was signed by Applicant as appears from pages 55 to 92 of annexure “DM2” do not affect the material portions of the said contract. The subject matter of the tender did not change. Clause 3 which was deleted refers to the occupation date and taking occupation of the premises. In my view therefore and for the reasons which follow I am of the view that the decision in Firechem does not assist Applicant.
[7] The main portion which Applicant critisises is the deletion of paragraph 3 of the lease agreement. This relates to when rental is payable if occupation could not be given. As set out in the judgment even if this was not deleted it would not assist Applicant as vacant possession of the property was given to Applicant for the reasons as set out in the judgment especially considering the judgment in the Tudor Hotels case.
[8] It was submitted by Applicant that I relied on 24 March 2020 as the commencement date of the lease. What was found as set out in paragraph 33 of the judgment was that the petroleum license was granted on 24 March 2020 and rental payable from that date if Respondents version is accepted.
[9] The further submissions set out in the application for leave to appeal and grounds to appeal has been dealt with in detail in my judgment and I am of the view that it does not require any further expansion.
[10] Having considered the submissions made by all the parties I am not convinced that there are reasonable prospects of another court coming to a different conclusion in this matter.
Order:
The application for leave to appeal is refused with costs such costs, to include the costs of senior counsel where applicable.
P C BEZUIDENHOUT J.
Date reserved:
2 December 2022
Date delivered:
26 January 2023
For applicant:
Mr Harpur SC
Instructed by:
De Villiers, Evans & Petit Attorneys
REF: Mr C Petit/oj/01R029015
Tel: 031 207 1515
Email: cpetit@dep.co.za
c/o Stowel & Co
REF: P Firmin/ Zelda
For respondent:
Mr K Gounden
Instructed by:
VENNS ATTORNEYS
REF: M H Motala/TH/13226738
Tel: 033 355 3100/3131
Email: mohammed@venns.co.za / trene@venns.co.za
For third party:
Mr Dickson SC
Instructed by: Mason Incorporated
REF: 015/C005/0000001
Tel: 033 345 4230 / 0726639397
Email: rob@masoninc.co.za
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