B Xulu & Partners Incorporated and Another v Department of Agriculture, Forestry and Fisheries and Another (6189/2019) [2020] ZAWCHC 99 (1 September 2020)

B Xulu & Partners Incorporated and Another v Department of Agriculture, Forestry and Fisheries and Another (6189/2019) [2020] ZAWCHC 99 (1 September 2020)

The court found that the intervention applicants, Ms Ndudane and Mr Zokwana, failed to establish a direct and substantial legal interest in the outcome of the main proceedings, as their grievances related to the reasoning and not the operative order. The alleged new evidence was either already before Rogers J or irrelevant to the core issues, and there was no proof of fraudulent concealment or material non-disclosure by the DAFF or Mr Mlengana. The application for rescission by BXI and Mr Xulu was dismissed as they conceded the invalidity of the SLA and settlement agreement due to non-compliance with procurement procedures, and any further dispute related only to the exercise of just and...

Citation
[2020] ZAWCHC 99
Parties
Applicant: B Xulu & Partners Incorporated; Applicant: Barnabas Xulu; Respondent: Department of Agriculture, Forestry and Fisheries; Respondent: Department of Environmental Affairs, Forestry and Fisheries; Applicant: Siphokazi Ndudane; Applicant: Senzeni Zokwana
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
1 September 2020
Case Number
6189/2019
Procedural Posture
Review Application / Judgment on Intervention and Rescission Applications
Outcome
All applications for intervention and rescission are dismissed with costs, including the costs of three counsel. Portions of affidavits relying on the PSC report and references to Minister Creecy are struck out. The application to strike out Mr Xulu's supplementary affidavit is dismissed with costs.
Judges
J.E Smith
Legal Topics
Intervention Application, Rescission of Judgment, Public Procurement, Authority of State Officials, Just and Equitable Remedy
Civil Procedure Administrative Law Intervention Application Rescission of Judgment Public Procurement Authority of State Officials Just and Equitable Remedy

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Parties

B Xulu & Partners Incorporated

Applicant

Barnabas Xulu

Applicant

Department of Agriculture, Forestry and Fisheries

Respondent

Department of Environmental Affairs, Forestry and Fisheries

Respondent

Siphokazi Ndudane

Applicant

Senzeni Zokwana

Applicant

Procedural Posture

Review Application / Judgment on Intervention and Rescission Applications

Legal Issues

  1. 1 Whether the intervention applicants have a direct and substantial legal interest in the outcome of the main proceedings.
  2. 2 Whether the judgment of Rogers J should be rescinded on grounds of fraud, misrepresentation, or non-disclosure of material facts.
  3. 3 Whether the affidavits and evidence sought to be introduced by the intervention applicants constitute new and material evidence.

Ratio Decidendi

The court found that the intervention applicants, Ms Ndudane and Mr Zokwana, failed to establish a direct and substantial legal interest in the outcome of the main proceedings, as their grievances related to the reasoning and not the operative order. The alleged new evidence was either already before Rogers J or irrelevant to the core issues, and there was no proof of fraudulent concealment or material non-disclosure by the DAFF or Mr Mlengana. The application for rescission by BXI and Mr Xulu was dismissed as they conceded the invalidity of the SLA and settlement agreement due to non-compliance with procurement procedures, and any further dispute related only to the exercise of just and...

Court Disposition

All applications for intervention and rescission are dismissed with costs, including the costs of three counsel. Portions of affidavits relying on the PSC report and references to Minister Creecy are struck out. The application to strike out Mr Xulu's supplementary affidavit is dismissed with costs.

Orders

  • Ms Ndudane's intervention application is dismissed with costs, including the costs of three counsel.
  • Mr Zokwana's intervention application is dismissed with costs, including the costs of three counsel.