Buhle Waste v Compass Medical Waste Services (Pty) Ltd (5409/2019) [2021] ZAFSHC 320 (2 December 2021)

IN THE HIGH COURT OF SOUTH AFRICA,

FREE STATE DIVISION, BLOEMFONTEIN

Case number: 5409/2019

In the matter between:

BUHLE

WASTE Applicant

and

COMPASS MEDICAL WASTE SERVICES(PTY) LTD Respondent

In re:

COMPASS MEDICAL WASTE SERVICES (PTY) LTD Applicant

MEC FOR THE

DEPARTMENT OF HEALTH

FOR THE PROVINCE OF

THE FREE STATE 1st Respondent

BUHLE

WASTE 2nd Respondent

FOR THE PROVINCE OF

LIMPOPO 3rd Respondent

CORAM:

MATHEBULA, J et MOLITSOANE, J

HEARD ON: 17 SEPTEMBER 2021

JUDGMENT BY:

THE COURT

DELIVERED ON: 02 DECEMBER 2021

[1] The applicant, (hereinafter referred to as Buhle Waste), seeks leave to appeal to the Supreme Court of Appeal the whole of the judgment granted by this court on 29 June 2021, reviewing and setting aside the decision of the first respondent to participate in a contract between the second and third respondents in terms of Regulation 16A6.6 of the Treasury Regulations.

[2] Section 17(1) of the Superior Courts Act 10 of 2013 regulates the test to be applied in an application for leave to appeal. It provides as follows:

“ Leave to appeal may only be given where the judge or judges

concerned are of the opinion that

(a) (i) the appeal would have a reasonable prospect of success; or

(ii) there is some other compelling reason why the appeal should be heard, including conflicting judgments on the matter under consideration.”

[3] Section 17(1) clearly sets out that an applicant seeking leave to appeal is required to convince the court that there is a reasonable prospect of success and not merely a possibility of success in the appeal. In Democratic Alliance v President of the Republic of South Africa and Others[1] the Full Court held as follows:

“The test as now set out in s17 constitutes a more formidable threshold over which an applicant must engage than was the case. Previously the test was whether there was a reasonable prospect that another court might come to a different conclusion. See, for example, Van Heerden v Cronwright and Others 1985(2) SA 342 (T) at 343 H. The fact that the Superior Courts Act now employs the word ‘would ‘as opposed to ‘might ‘serves to emphasise this point. As the Supreme Court of Appeal said in Smith v S 2012(1) SACR 567 (SCA) at para 7;

‘More is required to be established than that there is a mere possibility of success, that the case is arguable on appeal or that the case cannot be categorised as hopeless. There must in other words be a sound, rational basis for the conclusion that there are prospects of success on appeal.’

This dictum serves to emphasise a vital point: Leave to appeal is not simply for the taking. A balance between the rights of the party which was successful before the court a quo and the rights of the losing party seeking leave to appeal need to be established so that the absence of a realistic chance of succeeding on appeal dictates that the balance must be struck in favour of the party which was initially successful.”

[4] This judgment is assailed on a number of grounds, most of which deal with the individual issues the court dealt with. Briefly, the grounds on which the judgment is assailed on are the following:

a) The court erred in that it conflated the decision sought to be challenged with a subsequent decision, in respect of which neither a challenge was made, nor was a record of decision made;

b) With regard to the issue of mootness it is contended that this court erred in that the order granted related to the decision taken by the first respondent in August 2020 which was not the issue presented to the court for determination;

c) That the court failed to adjudicate the issue of locus standi and that the first respondent’s decision constituted executive action rather than administrative action;

d) The ambit of the Treasury Regulation 16.6. A6;

e) That the court exceeded its powers by directing the first respondent to procure for health risk waste services in the Free State by calling for no less than three quotations.

Mootness

[5] It seems to us that the applicant relies heavily on the following excerpt from our judgment to attack our finding on mootness:

“ [6] The factual matrix upon which this point is premised is that ‘a decision’ sought to be reviewed and set aside by the applicant lapsed on 31 August 2020. This is common cause.” (applicant’s emphasis).

[6] The above statement in our judgment should not be read in isolation but in context with the rest of our reasons in order to arrive at a finding regarding mootness. In our view, there can never be a dispute that the decision of 31 August 2020 was extended. In amplification of this finding we reiterate that Regulation 16.6.6 permits an organ of state to procure goods and services by participating in a contract of another organ of state which was preceded by a competitive bidding process subject to the written approval of both the organ of state in whose contract participation is sought and the contractor in that contract. In our view the two decisions are inextricably linked to each other as we found. The reason we referred to the fist decision having lapsed was to illustrate the subsequent extension as opposed to conflating the two decisions. Mootness per se is not a bar to proceed to hear a matter.

[7] It is submitted that once we found that the first decision had lapsed, we ought to have exercised our discretion to decide the issue only if such matter (as held in Madibeng Local Municipality v DDP Valuers and Another[2]) ‘presented a discrete legal issue of public importance that would affect matters in the future and on which the adjudication of this court is required.’

[8] In our view we held that the interests of justice require us to deal with the matter in spite of the mootness, if any, of the issues raised. This does not necessarily mean that we found that the issue was moot. The Constitutional Court in Normandien Farms (Pty) Ltd v South African Agency for Promotion of Petroleum Expropriation and Exploitation SOC Limited and Others[3] held that ‘mootness is not absolute bar to the justiciability of an issue….Court may entertain on appeal, even if moot, where the interests of justice so require.” We are of the view that this also holds true in ordinary applications. We thus exercised our discretion and decided to hear the application. This application is important not only to the litigants but to the inhabitants of the Free State because it affects the public purse. In our view, the contention by the Applicant that we could only exercise our discretion in the narrow route as set out in Madibeng Local Municipality does not hold water as it ignores the ratio in Normandien.

Lack of locus standi and the contention that the decision constituted executive decision.

[9] It is contended that we failed to deal with the defences of Buhle Waste, specifically the challenge to the locus standi of Compass as well as the contention that the first respondent’s decision constituted an executive action and a review of such a decision would violate the separation of powers principles. With regard to the question of locus standi and whether the decision constituted an executive decision, Buhle Waste has rehashed the arguments in the application which we fully dealt with. It is in our view unnecessary to deal with this issue again in this application.

The ambit of Regulation 16A6.6

[10] Buhle Waste contends that this Court unduly restricted the interpretation of Regulation 16A6.6 on the basis that all services had to be included in the participation of the contract of the other organ of state. We are of the considered view that Buhle Waste misunderstood our finding in this regard. We reiterate what we said in the judgment:

“[34]…..But in our view, if the terms of the existing agreement in which participation is sought excludes other services, this should call upon the decision maker to decide whether participation in such constitutionally compliant contract would still meet the constitutional muster in the peculiar circumstances of his case despite the terms not being identical.” Our emphasis). In our view we were alive to the fact that participation could be sought were the services or supplies were not all identical. Put differently, our view is simply that if that were to be the case, the decision maker should still interrogate if there will still be constitutional compliance even under those circumstances.

[11] Buhle Waste further contends in its Heads of Argument that “the court, in its judgment, refers to decisions of various divisions which have grappled with the meaning of Regulation 16A6.6 or its equivalent at local government level. The SCA has not had an opportunity to speak on this issue.” For this reason, so it is submitted, leave to appeal must be granted.

[12] In our view this is not the test for granting leave to appeal. For Buhle Waste to succeed with an application for leave to appeal, it must convince this court that the appeal would have a reasonable prospect of success or there are compelling reasons why leave to appeal should be granted. The decisions of the various decisions referred to by Buhle Waste are consistent. Buhle has not furnished us, nor are we aware of any conflicting decisions in respect of the ambit of Regulation 16.6A.6. Leave to appeal cannot be granted to the SCA simply for that court to endorse the consistent views of the various divisions.

Finding

[13] We hold the view that Buhle Waste has failed to convince us that there are prospects of success on appeal or there are compelling reasons why leave to appeal should be granted.

Costs

[14] The award of the costs lies in the discretion of the court. We are of the view that the costs should follow the result.

Order

1. The application for leave to appeal is dismissed with costs.

M. A. MATHEBULA, J

P.E. MOLITSOANE, J

On behalf of the Applicant:

Adv AV Voormolen, SC

Instructed by: Shepstone & Wylie Attoneys

c/o Matsepes Inc.

BLOEMFONTEIN

On behalf of the Second Respondent: Adv JG Wasserman, SC

Instructed by: Fairbridges Wertheim Becker Attorner

C/o Phatshoane Henney Inc. Attorneys

On behalf of the first and third

respondents

No Appearances

[1] (2124/2020) [2020] ZAGPPHC 326(29 July 2020) para [4] – [5].

[2] (1284/2017) [2020] ZASCA 70 (19 June 2020).

[3] [2020] ZASCA 5.