Big Blue Marketing CC v King Sabata Dalindyebo Local Municipality (4308/2016) [2017] ZAECMHC 2 (16 February 2017)

IN

THE HIGH COURT OF SOUTH AFRICA

EASTERN CAPE LOCAL DIVISION: MTHATHA

CASE NO. 4308/2016

In the matter between:

BIG

BLUE MARKETING CC

Applicant

and

KING

SABATA DALINDYEBO LOCAL

MUNICIPALITY

Respondent

JUDGMENT

BROOKS J:

[1] On 23 November 2016 the applicant commenced proceedings against the respondent by the issue of a notice of motion in which were reflected truncated time periods in respect of the filing of a notice of opposition and an answering affidavit. The notice of motion indicated that the applicant would move for a rule nisi on 30 November 2016, returnable on 12 December 2016, which embodied interdicts to operate with immediate effect pending the finalisation

of the application. In doing so, the applicant did not include a prayer for an order permitting the matter to be treated as an urgent application.

[2] Given that 30 November 2016 was not a day upon which a motion court had been scheduled, the applicant was obliged first to approach a judge in chambers in terms of the provisions of Rule 12 (d) of the Joint Rules of Practice for the High Courts of the Eastern Cape Province, presenting the judge with a certificate of urgency in which the proposed time frames for inclusion in the notice motion were reflected and seeking a directive from the judge in respect thereof. This the applicant did and obtained the directive.

[3] It is necessary for an applicant to set out fully in the certificate of urgency the grounds upon which he or she relies in approaching the court pursuant to the provisions of Rule 6 (12) of the Uniform Rules of Court. It is equally necessary for an applicant to set out fully in the founding affidavit the circumstances which render the matter urgent and the reasons why he or she claims that substantial relief cannot be obtained at a hearing in due course.[1]

[4] In the certificate of urgency it is stated that the matter is urgent for the reasons set out in paragraphs 29 and 35 of the founding affidavit. Presumably the founding affidavit was placed before the judge in chambers when the applicant sought a directive pertaining to the time periods set out in the certificate of urgency. The paragraphs so identified read as follows:

“29. Despite this, I noticed on the 11 November 2016 that the respondent has advertised a new tender for the leasing of multifunction printing hardware for a period of 12 months to the respondent under Bid No. SCM 123/2016/17, which currently has a closing date of 23 November 2016.”

“35. I am advised and accordingly submit that the urgency of this matter is self-evident from the tender bid notice.”

[5] Additional paragraphs in the certificate of urgency read as follows:

“2. As is evident from the Tender Bid Notice, the Respondent’s period for the acceptance of bids under the tender closes on 23 November 2016.

3. If the applicant delays by bringing this application in the ordinary course:

3.1. The Respondent will commence its consideration of the various bids received;

3.2. The consideration of the various tenders, and the potential award of the tender, will result in the creation of expectations for various bidders and put them to considerable wasted time and expense in preparing further in terms of the bid process;

3.3. The award of the tender will prejudice the Applicant’s claims for specific performance under case number 3247/2015;

3.4. Should the Respondent proceed with the award of the tender, it would result in various third parties needing to be joined to this application resulting in unnecessary legal costs for all involved;

3.5. There are further important considerations that will affect the public purse as the Respondent and its incumbents will incur unnecessary time wastage at public expense and direct further tender process expenses should this application not be brought at the present stage to interdict the tender process.

4. The Respondent has the use of the Applicant’s printers at present, which it is continuing to use and is therefore not prejudiced in any material way by the granting of the order as one of urgency, urgency which is of its own creation.”

[6] Paragraphs 3 and 4 of the certificate of urgency, quoted above, offer a series of legal arguments and conclusions which are not repeated in the founding affidavit. Nor does the founding affidavit contain sufficient factual allegations about the tender process to enable the court to determine the correctness or otherwises of the arguments and conclusions which appear to have been offered in the certificate of urgency to obtain the prerequisite directive from a judge in chambers, thereby permitting the applicant to enrol the matter for hearing on a day other than a motion court day.

[7] The issue by a judge in chambers of a directive in accordance with the provisions of Rule 12 (d) of the Joint Rules of Practice for the High Courts of the Eastern Cape Province does not constitute a finding by the court that the matter is urgent and may proceed in accordance with the provisions of Rule 6 (12) of the Uniform Rules of Court. A decision whether or not to issue a directive is usually made on the content of the certificate of urgency only, but regard may be had to the founding affidavit if it is available.

Should the judge determine that it is sufficiently urgent, he or she will give directions as to the time and place when and where the application is to be heard. The decision in no way binds any subsequent judge in the exercise of his or her discretion on the issue of formal relief in terms of the Uniform Rules of Court when the matter is heard.[2] For this reason it remains incumbent upon an applicant to include, as the first prayer in any notice of motion which may be issued pursuant to a directive given by a judge in chambers pursuant to his or her consideration of the content of a certificate of urgency, a prayer for an order that the applicant be permitted to introduce and move the application as one of urgency as envisaged by the provisions of Rule 6 (12) of the Uniform Rules of Court. That ought to have been done in the present matter.

[8] Moreover, where an applicant fails to place sufficient and explicit reasons before the court in the founding affidavit upon which reliance is to be placed in an attempt to secure an order in terms of Rule 6 (12) of the Uniform Rules of Court, he or she runs the risk of a dismissal of the application on the basis that it lacks the requisite element or degree of urgency.[3]

[9] One of the grounds for urgency relied upon by the applicant in its founding affidavit is that its sole member, the deponent, “noticed” on 11 November 2016 that the respondent had advertised a “new tender” for the leasing of multifunction printing hardware for a period of twelve months. The closing date for the submission of bids for the award of the tender was advertised as being 23 November 2016. No explanation is forthcoming in the founding affidavit as to why the applicant delayed its approach to this court for leave to commence urgent proceedings against the respondent. The delay was until 23 November 2016, the day upon which the opportunity to submit bids was to close. The inexplicability of this delay is particularly glaring in light of the following facts which emerge elsewhere in the founding affidavit:

· during January 2015 the respondent published an invitation to tender for the leasing of multifunction printing hardware for a period of three years;

· on 27 January 2015 (the date given in the founding affidavit is 2016, but the error therein appears to be clear when consideration is given to other dates referred to in the affidavit) the applicant submitted a tender proposal;

· on 5 March 2015 the respondent caused a letter to be sent to the applicant advising that its tender bid had been successful;

· performance of certain obligations which it alleges were created by the acceptance of the tender was then undertaken by the applicant;

· a dispute thereafter arose “when the respondent failed to make the payment of the monthly rentals that accrued in respect of such printers, as well as payment of the maintenance charges in respect of the use of the printers as calculated by the number of pages printed”;

· in the circumstances the applicant gave instructions to a firm of attorneys on 9 November 2015 to institute action against the respondent for payment of the amounts due to the applicant and an order of specific performance;

· particulars of claim “were subsequently substituted in their entirety pursuant to a notice of amendment filed at court during October 2016”;

· the action is defended and the basis of the defence appears to be that an unlawful variation of the tender awarded to the applicant by the respondent occurred on or about 9 March 2015, this being the apparent reason for the cessation by the respondent of payments made hitherto in terms of the agreement resulting from the acceptance of the applicant’s tender of 27 January 2015;

· whilst the applicant does not agree with the respondent’s view that the unlawful variation of the agreement renders it unenforceable, the applicant has introduced an alternative to its claim in the action for payment of arrears and specific performance, that being an enrichment claim which caters for the potential finding by a court in due course that the respondent’s view of the agreement is correct.

[10] It is plain from a consideration of all these factors that the dispute between the parties has a long history. No reason

emerges from the papers to explain why, coupled with the institution of its action, the applicant did not take steps to secure its position on an interim basis. Certainly, given the history of the matter, in my view the reasonable expectation would be that the applicant approach this court much more quickly and efficiently than it did once its sole member “noticed” on 11 November 2016 that the respondent had advertised a new tender. The unexplained delay may well be indicative of self created urgency for which the applicant alone must take responsibility.[4]

[11] What resulted was an application being issued on 23 November 2016, which called for the filing of a notice of opposition on 25 November 2016, by midday. For some reason, the application appears to have been treated as an interlocutory application in the main action between the parties for, although it has a separate case number, it was served on the respondent’s attorneys. The notice of motion called for an answering affidavit to be filed on 28 November 2016, the following Monday, leaving the respondent little time to prepare the answering affidavit. Presumably much of the weekend of 26 and 27 November 2016 was dedicated to meeting the applicant’s deadline.

[12] Whilst issues relating to urgency were not taken as points in limine on behalf of the respondent, the concluding paragraph of the answering affidavit reads as follows:

“This matter is not urgent. It is the applicant who decided to label the matter as urgent hence we were forced despite time constraints to attend to this self created urgent matter.”

[13] Inevitably, the matter was postponed on 30 November 2016. No replying affidavit had been filed on behalf of the applicant.

The matter was postponed by agreement to 15 December 2016, with wasted costs reserved.

[14] On 7 December 2016 a supplementary answering affidavit was filed on behalf of the respondent.

[15] On 8 December 2016 a replying affidavit was filed on behalf of the applicant.

[16] On 15 December 2016 a supplementary replying affidavit was filed on behalf of the applicant.

[17] On 15 December 2016, no argument appears to have occurred on the merits. Disputes appear to have arisen in respect of the filing of a supplementary answering affidavit on behalf of the respondent and the right of the applicant to introduce a supplementary replying affidavit. Accordingly the matter was postponed again, this time to 9 February 2017, with wasted costs reserved.

[18] On 9 February 2017 a notice of motion was introduced on behalf of the applicant seeking leave to file its supplementary replying affidavit in the event of the respondent moving such an application in respect of the supplementary answering affidavit. Mr QUINN, who appeared on behalf of the respondent, expressed the view that it was not necessary for the respondent to seek the leave of the court to introduce its supplementary answering affidavit as it had been prepared and filed pursuant to the initial answering affidavit which had been prepared under such adverse conditions as had been created by the applicant’s extremely stringent time frames set out in the notice of motion and, indeed, prior to any replying affidavit being filed on behalf of the respondent.

[19] MR ROWAN, who appeared on behalf of the applicant moved the application for the acceptance of the supplementary replying affidavit, seeking costs against the respondent in the event of its opposition thereto. MR QUINN opposed the application. Issues then arose in argument which I do not need to consider in the light of the conclusion to which I have arrived in this matter.

However in making no order on the merits of the application for leave to introduce the supplementary replying affidavit as I do, I do not lose sight of the fact that it attracted costs. In my view, the entire debacle over the introduction of the supplementary affidavits on both sides was a direct result of the extremely stringent time frames imposed upon the matter by the applicant in its notice of motion. Within the context of the unacceptable manner in which this application has been introduced into court as an urgent application, without formal leave to do so being sought in the notice of motion and upon inadequate grounds for urgency being set out in the founding affidavit, in my view the applicant must bear the costs of the application for leave to introduce its supplementary replying affidavit, including the costs occasioned by the respondent’s opposition thereto.

[20] Whilst this a matter which qualifies readily as one where an order would be appropriate striking the matter from the roll on the basis of a lack of demonstration of urgency, and the self-creation of urgency and non-compliance with the provisions of Rule 6 (12) of the Uniform Rules of Court, including the failure to seek formally in the notice of motion an order permitting the matter to proceed as a matter of urgency on truncated time periods, in my view it is in the interests of justice that such dismissal should not occur. I consider it expedient to deal with the merits of the application in the exercise of my judicial discretion. I do so because of the nature of the relief sought and the context in which it is sought. In my view, finality on the substance of the application is desirable and in the interests of both parties.

[21] The notice of motion seeks a rule nisi in the following terms:

“1.1. the respondent is interdicted and restrained from concluding or implementing any contract in respect of Tender Bid No. SCM 123/2016/17, and further from taking any steps for the implementation of any tender awards pursuant to or in furtherance of such tender;

1.2. the respondent is interdicted and restrained from placing or processing any tenders for the provision of multifunction printing hardware to the respondent pending the outcome of the action instituted in this court under Case No. 3247/2015;

1.3. the respondent is bear the costs of this application including the costs of two counsel.”(sic)

[22] A further order was sought which would have the relief claimed in prayers 1.1 and 1.2 operate as an interim interdict pending the finalisation of the application.

[23] Although a rule nisi was sought initially in the notice of motion, I am sure that with the full exchange of affidavits and the passage of time, what was contemplated by both parties was the finalisation of the matter as if it were the return day of the rule nisi.

[24] Some debate occurred between counsel as to whether the relief claimed amounted to an interim interdict, or an interim interdict whose effect was that of a final interdict, or in fact a final interdict. Mr. ROWAN was given an opportunity to consider amendment to prayer 1.1 of the notice of motion. After some vacillation he elected to retain the wording employed, but stated that he would not pursue the relief claim in prayer 1.1 “vigorously” but would pursue the relief claimed in prayer 1.2 “vigorously”.

[25] The importance of categorising the relief as an interim interdict or a final interdict was informed by the elements of the different tests which would be applied in each case. Central to the difference between the two is the nature and extent of the right which must be demonstrated by an applicant in order to obtain relief. Obviously, when seeking an interim interdict the extent to which the applicant must demonstrate a right is less. It needs only be a prima facie right. It may even be open to some doubt. In proceedings for interim relief, however, the consideration of the balance of convenience enters the fray. This is absent in proceedings for a final interdict, or where the relief may appear to be interim in nature but is actually final in effect. However, in such circumstances, an applicant is required to demonstrate a clear right.

[26] The importance of the issue was claimed by counsel for different reasons. However, it is clear that both agreed that the right relied upon by the applicant flowed from the contract it had concluded with the respondent subsequent to the acceptance by the respondent of the applicant’s tender. The respondent’s claim that the contract had been rendered invalid by virtue of the unlawfulness of subsequent events is ventilated in their claim in reconvention in the main action. Accordingly it was the submission of MR QUINN that the applicant has failed to demonstrate any sort of right in this court, let alone a clear right to entitle the applicant to final relief or to interim relief which is final in effect. In contrast, MR ROWAN submitted that the right remained intact and was a clear right. This submission was in accordance with the view of the applicant reflected in the main action which it has instituted and in which its primary claim is for an order for specific performance.

[27] I do not intend to make a finding on the validity and extent of the applicant’s right. For reasons which follow, it is not necessary to do so in this matter. Moreover this application is not about the validity or unlawfulness of the contract between the parties. No declaratory order in this regard is sought. This distinguishes it from the two matters to which I was referred by counsel on the point.[5] The issue forms an integral part of the main action between the parties, a vehicle better suited to its determination than these proceedings.

[28] Common to the entitlement to an interim interdict, an interdict which is interim in form but final in effect and a final interdict is the requirement that an applicant seeking the indulgence of an interdict must demonstrate that it has no satisfactory alternative remedy.

[29] On the applicant’s founding papers it is clear that in the face of a long dispute with the respondent over the respondent’s

attitude towards the contract it concluded with the applicant after the acceptance of the applicant’s tender, the applicant issued summons. Therein it claims specific performance of the contract, payment of arrear amounts due in terms thereof and costs. It also seeks, as an alternative, the payment of an amount of money by the respondent on the basis of enrichment in the event that the trial court in due course finds that the agreement relied upon by the applicant is invalid.

[30] In answer to a question by the court as to why this remedy, an action already instituted, did not qualify to be regarded as a satisfactory alternative remedy, MR ROWAN’s reply was that the applicant seeks specific performance of the contract it has with the respondent and the court cannot dictate to the applicant that it ought to have elected to accept the respondent’s purported cancellation of the agreement and sued for damages. In my view, this answer misses the point. It is open to the applicant to add to its claim for specific performance an alternative claim that in the event of the court refusing to grant an order of specific performance (either due to the effluxion of time beyond the date when the contract would have come to an end naturally or for some other reason why the court is not prepared to exercise its discretion in favour of the applicant by granting it an order of specific performance), the court make an award of damages instead. Moreover, the applicant already has an alternative claim in place which is based on enrichment flowing from a finding that the agreement is invalid. This can be amended to embrace whatever effect the passage of time has on the enrichment claim whilst the respondent is still in possession of assets belonging to the applicant. In enquiring whether there is a satisfactory alternative remedy available to a litigant the question is completely objective. No room exists for an applicant simply to choose not to make use of a satisfactory alternative remedy and then to come to court and complain about its absence or the potential inconvenience of adopting it. Nor is the identification by the court of a satisfactory alternative remedy an instruction that the applicant must take it up.

MR ROWAN also submitted that it would be difficult to quantify the applicant’s damages. The applicant’s particulars of claim, annexed to the founding affidavit, show careful calculations pertaining both to arrear amounts claimed as due under the contract and to the quantum under the enrichment claim. In these circumstances, no reason is apparent why the calculation of damages should present a problem. Moreover, such a difficulty was not raised or explained in the founding affidavit.

[31] Accordingly, I am of the view that a satisfactory alternative remedy is available to the applicant in the form of the action which it has already instituted against the respondent, even if that action requires some prudent amendment in the process. In such circumstances, I am of the view that the applicant is not entitled to an interdict.[6]

[32] Both counsel agreed that costs should follow the result and should enable the recovery of the costs of two counsel where same were employed. I have already expressed a view on the applicant’s liability for the costs of the respondent’s opposition to its application for leave to introduce a supplementary replying affidavit. What remains outstanding is a view of the issue of liability for the wasted costs occasioned by the postponements of the matter. The postponements occurred on 30 November 2016 and 15 December 2016. On the first occasion, the papers lacked a replying affidavit. Although the respondent had met the deadlines in the notice of motion, they were impractical and the applicant was clearly unable to ensure that the matter was properly before court with a replying affidavit and heads of argument. On the second occasion, it is apparent from the record that the applicant had sought to introduce its supplementary replying affidavit on the very same day to which the matter had been postponed. In these circumstances, the applicant should be liable for the payment of the wasted costs occasioned by the postponements.

[33] The following order will issue:

“1. The applicant is directed to pay the costs of the application by the applicant on 8 February 2017 for leave to file the applicant’s supplementary replying affidavit, such costs to include the costs occasioned by the respondent’s opposition thereto and the costs of two counsel where so employed;

2. The application launched by the applicant on 23 November 2016 is dismissed with costs, such costs to include the wasted costs reserved on 30 November 2016 and 15 December 2016 respectively and the costs occasioned by the employment of two counsel by the respondent where this occurred.”

RWN

BROOKS

JUDGE

OF THE HIGH COURT

Appearances:

For the applicant: ADV

PAC ROWAN SC

Instructed by Elliot & Walker Attorneys

c/o J. A. Le Roux Attorneys

93 Nelson Mandela Drive

MTHATHA

For the respondent: ADV RP QUINN SC

Instructed by RM Mayekiso Attorneys

Suite 1, Ground Floor

Myezo Office Park

KD Matanzima Road

Date heard:

09 February 2017

Date Delivered:

16 February 2017

[1] MANGALA v MANGALA 1967(2) SA 415 (E); ENIRAM (PTY) LTD v NEW WOOHOLME HOTEL (PTY) LTD 1967 (2) SA 491 (E) 493 A-B; CEKESHE v PREMIER, EASTERN CAPE 1998 (4) SA 935 (Tk) 948 F.

[2] MBIZANA DEVELOPMENT FORUM v MINISTER OF JUSTICE AND CONSTITUTIONAL DEVELOPMENT AND OTHERS (1256/13 ) [2013] ZAECMHC8, (13 JUNE 2013); WINDSOR HOTEL (PTY) LTD v NEW WINDSOR PROPERTIES (PTY) LTD AND OTHERS (1820/13) [2013] ZAECMHC14 (7 AUGUST 2013).

[3] LUNA MEUBEL VERVAARDIGERS EDMS. BPK v MAKIN 1977 (4) SA135 (W) 139 F – 140 A; COMMISSIONER FOR SOUTH AFRICAN

REVENUE SERVICE v HAWKER AIR SERVICES (PTY) LTD in re COMMISSIONER FOR SOUTH AFRICAN REVENUE SERVICE v HAWKER AVIATION SERVICES

PARTNERSHIP AND OTHERS 2006 (2) ALL SA 565 (SCA), 2006 (4) SA 272 (SCA).

[4] DAN BOLMAN AND ANOTHER v AFRICAN NATIONAL CONGRESS AND OTHERS 813/2011 [2011] ZAECGHC8, (31 MARCH 2011).

[5] MUNICIPAL MANAGER: QAUKENI LOCAL MUNICIPALITY AND ANOTHER v FV GENERAL TRADING CC 2010 (1) SA 356 (SCA); KWA SANI MUNICIPALITY v UNDERBERG/HIMEVILLE COMMUNITY WATCH ASSOCIATION AND AUBREY NGCOBO NO. (180/2014) [2015] ZASCA 24 (20 March 2015).

[6] UDC BANK LIMITED v SEBAT LEASING AND FINANCE CO. (PTY) LTD 1979 (4) SA 682 (T) 695 D – 696 C.