K2011148986 (South Africa) (Pty) Ltd Trading as Nashua Bethlehem v State Information Technology Agency (SOC) and Others (3996/2019) [2021] ZAFSHC 27 (11 February 2021)

IN THE HIGH COURT OF SOUTH AFRICA

FREE STATE DIVISION, BLOEMFONTEIN

Reportable:

NO

Of Interest to other Judges: NO

Circulate to Magistrates: NO

Case number: 3996/2019

In the matter between:

K2011148986 (SOUTH AFRICA) (PTY) LTD Applicant

Trading as NASHUA BETHLEHEM

[Registration number: 2011/1148986/07]

and

STATE INFORMATION TECHNOLOGY AGENCY

(SOC) LTD

First Respondent

MEC: FREE STATE PROVINCIAL GOVERNMENT

DEPARTMENT OF TREASURY

Second Respondent

HOD: FREE STATE PROVINCIAL GOVERNMENT

DEPARTMENT OF TREASURY

Third Respondent

ALENTI 220 (PTY) LTD

Fourth Respondent

[Registration number 1995/001900/07]

BHR BUSINESS SYSTEMS (PTY) LTD

Fifth Respondent

GEROX TRADING CC

Sixth Respondent

[Registration number 2009/152076/23]

KRUGER MANGAUNG (PTY) LTD

Seventh Respondent

[Registration number 2016/217000/07]

LEROSTYLE (PTY) LTD

Eighth Respondent

[Registration number 2012/000018/07]

LESEDI (PTY) LTD

Ninth Respondent

[Registration number 2016/116775/07]

OLIVESTMENTS JOSEVIO-TOL DISTRIBUTORS

JOINT VENTURE

Tenth Respondent

JUDGMENT – LEAVE TO APPEAL

JUDGMENT BY:

NAIDOO, J et CHESIWE, J

HEARD ON: The papers, as per the directive; with Heads of Arguments filed on 23 October and 30 October 2020 respectively

DELIVERED ON: 11 FEBRUARY 2021

[1] The applicant seeks leave to appeal to the Supreme Court of Appeal against the whole of the order and judgment granted on 18 August 2020. The First, Second, Third and Fourth Respondents opposed the application.

[2] The grounds upon which leave to appeal is sought, are listed extensively in the application and will therefore not be repeated herein. The main contentions of the applicant are that the court erred in finding that:

2.1 the deponent to the Founding Affidavit did not establish locus standi to initiate these proceedings;

2.2 the non- joinder of the relevant Provincial Government Departments rendered the application defective;

2.3 The costs of 9 March 2020 should be paid by the respondent.

[3] The applicant contends that it has good prospects of success on appeal. The First, Second, Third and Fourth Respondents contended that the leave to appeal application does not meet the threshold of showing that there are reasonable prospects of success.

[4] In terms of the provisions of section 17(1) of the Superior Courts Act 10 of 2013, leave to appeal may only be granted if the judge concerned is of the opinion that:[1]

“(a) (i) The appeal would have reasonable prospects of success or if there is some compelling reason why leave should be granted;

(b) The decision sought on appeal does not fall within the ambit of section 16(2)(a) of the Act;

(c) Where the decision sought to be appealed does not dispose of all the issues in the case, the appeal would lead to a just and prompt resolution of the real issues between the parties.”

[5] In an unreported decision of the Mont Chevaux Trust v Tina Goosen,[2] Bertelsmann, J held that:

“It is clear that the threshold for granting leave to appeal against a judgment of a High Court has been raised in the new Act. The former test whether leave to appeal should be granted was a reasonable prospect that another court might come to a different conclusion…The use of the word ‘would’ in the new statute indicates a measure of certainty that another court will differ from the court whose judgment is sought to be appealed against.”

[6] The Mont Chevaux decision was cited with approval in the matter of Matoto v Free State Gambling and Liquor Authority (4629/2015 [2017] ZA FSHC 80 (8 June 2017), where Daffue, J at paragraph 5 said:

“There can be no doubt that the bar for granting leave to appeal has been raised. The use by the legislature of the word ‘only’,

emphasised supra, is a further indication of a more stringent test.”

[7] In Smith v S[3], the court dealt with the question of what constitute reasonable prospects of success and stated as follows:

“What the test of reasonable prospects of success postulates is a dispassionate decision, based on the facts and the law, that a court of appeal could reasonably arrive at a conclusion different to that of the trial court. In order to succeed, therefore, the appellant must convince this court on proper grounds that he has prospects of success on appeal and that those prospects are not remote, but have a realistic chance of succeeding. 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.”

[8] The applicant relies on several grounds, as stated, in the application for leave to appeal with the assertion that the appeal would have a reasonable prospect of success. Most of the grounds sought to be relied upon are essentially a reiteration of the case as set out in the pleadings and was fully argued and dealt with in our judgment.

[9] In the main application this court was called upon to adjudicate whether the court may review and set aside the decision of the First, Second and Third Respondents to award the tender to the successful bidder and/or substitute the decision in order that the appellant be awarded the tender. The First, Second and Third Respondents correctly stated that the Heads of their respective Departments have already concluded contracts with the successful bidders. Indeed, any departure or setting aside of the contracts will indeed have a budgetary implication for the Respondents as well as the end users of the contracts.

[10] The First, Second, Third and Fourth Respondents raised points in limine on urgency, non-joinder and the authority of the deponent to institute the application on behalf of the applicant. The judgment dealt with the points in limine and that disposed of the matter. The reasons therefor appear from the judgment and need not be traversed here.

[11] The Applicant simply revisited, in this application, the issues that were vigorously opposed and challenged by the First, Second, Third and Fourth Respondents. In an application for leave to appeal the applicant is not precluded from revisiting such issues provided that the court is satisfied that there is a reasonable prospect that another court would come to a different decision. Another aspect to consider is the practical effect of the order that the applicant ultimately seeks. Even if it succeeds on the locus standi and non-joinder issues, the contracts, which were awarded to the successful bidders, are currently halfway to completion. The budgets in respect of such contracts have been allocated and, in all probability, have been utilised.

[12] The applicant asserts that it seeks to merely to have the bid awarded to it, in order that its name be added to the list of successful bidders, so that its services may be utilised, should the need arise. There would be no financial implication for the respondents or the end users. This is how the applicant argued, that the relevant Provincial Departments had no direct or substantial interest in the outcome of the applicant’s application, and therefore, they need not have been joined as parties to this application. Such an order would have no practical effect or any benefit for the applicant.

[13] That the bar has been raised in considering whether leave to appeal the judgment of a court should be granted, is not in dispute. In my view, the applicant has failed to meet the threshold required in section 17(1) of the Superior Courts Act 10 of 2013.

[14] I am therefore of the considered view that the application is without merit and that the applicant does not have reasonable prospects of success on appeal.

[15] I accordingly make the following order:

1. The application for leave to appeal to the SCA is dismissed with costs in favour of the First, Second, Third and Fourth Respondents.

CHESIWE, J

I concur

NAIDOO, J

Appearances:

On behalf of the Applicant: Adv. CD Pienaar

Instructed by:

Peyper Attorneys

BLOEMFONTEIN

On behalf of 1st Respondent: Adv. MA Tshivhase

Instructed by:

Phatshoane Henney Attorneys

On behalf of 2nd & 3rd

Respondents:

Adv. PT Masihleho

Instructed by:

State Attorney

On behalf of 4th Respondent: Adv C Snyman

Instructed by:

Phatshoane Henney Attorneys

[1] MEC for Health, Eastern Cape v Mkitha and Another, 1221/2015 [2005] ZASCA 176 (25 November 2016).

[2] 2014 JDR 2325 LCC

[3] 2012 (1) SACR 567 (SCA) at para [7]