Ishmael v Joubert and Another (1651/06) [2008] ZANWHC 15 (17 April 2008)

Ishmael v Joubert and Another (1651/06) [2008] ZANWHC 15 (17 April 2008)

The court found that the applicant failed to prove, on a balance of probabilities, that the partnership agreement entered into with the first respondent constituted a valid and binding partnership for the purposes of the Broad Based Black Economic Empowerment Act, as required by the Municipality's resolution. There was a serious dispute of fact regarding the nature and compliance of the agreement, which could not be resolved on affidavit. Furthermore, the applicant failed to join necessary parties, such as Port Wild Properties, who had a direct and substantial interest in the outcome. The Municipality's administrative actions were not shown to be in contravention of the BBBEEA or PAJA....

Citation
[2008] ZANWHC 15
Parties
Applicant: Dawood Ishmael Botha; Respondent: Gideon Daniel Joubert Botha; Respondent: Ditsobotla Local Municipality
Court
North West High Court, Mafikeng
Jurisdiction
South Africa
Judgment Date
17 April 2008
Case Number
1651/06
Procedural Posture
Leave to Appeal / Application for Leave to Appeal Against Dismissal of Main Application
Outcome
Application for leave to appeal dismissed with costs.
Judges
M M Leeuw
Legal Topics
Broad Based Black Economic Empowerment Act, Joinder of Parties, Declaratory Relief, Municipal Tender Process, Promotion of Administrative Justice Act, Partnership Agreement
Administrative Law Civil Procedure Commercial and Corporate Broad Based Black Economic Empowerment Act Joinder of Parties Declaratory Relief Municipal Tender Process Promotion of Administrative Justice Act +1 more

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Parties

Dawood Ishmael Botha

Applicant

Gideon Daniel Joubert Botha

Respondent

Ditsobotla Local Municipality

Respondent

Procedural Posture

Leave to Appeal / Application for Leave to Appeal Against Dismissal of Main Application

Legal Issues

  1. 1 Whether the partnership agreement between the applicant and first respondent constituted a valid and binding partnership for purposes of the Broad Based Black Economic Empowerment Act.
  2. 2 Whether the applicant was entitled to a declaratory order regarding compliance with the Municipality's BEE requirements.
  3. 3 Whether necessary parties with a direct and substantial interest were properly joined to the proceedings.

Ratio Decidendi

The court found that the applicant failed to prove, on a balance of probabilities, that the partnership agreement entered into with the first respondent constituted a valid and binding partnership for the purposes of the Broad Based Black Economic Empowerment Act, as required by the Municipality's resolution. There was a serious dispute of fact regarding the nature and compliance of the agreement, which could not be resolved on affidavit. Furthermore, the applicant failed to join necessary parties, such as Port Wild Properties, who had a direct and substantial interest in the outcome. The Municipality's administrative actions were not shown to be in contravention of the BBBEEA or PAJA....

Court Disposition

Application for leave to appeal dismissed with costs.

Orders

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