Maquassi-Hills Contractors v Oxy Trading (Pty) Ltd t/a D L Construction and Another (KPUM35/2018) [2018] ZANWHC 76 (13 December 2018)
- Citation
- [2018] ZANWHC 76
- Status
- Order
- Jurisdiction
- South Africa
- Court
- North West High Court, Mafikeng
- Panel
- A M Kgoele
- Case number
- KPUM35/2018
More details
- Court
- North West High Court, Mafikeng
- Panel
- A M Kgoele
- Case number
- KPUM35/2018
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The application was fatally defective due to a founding affidavit that was not properly commissioned, with inconsistencies regarding the date and place of signing and the identity of the deponent. The applicant failed to justify proceeding ex parte or to provide reasons for lack of service on the respondents. No sufficient basis for urgency was established, and the urgency appeared self-created. The requirements for an interdict were not properly addressed, and the papers did not demonstrate prospects of success in any intended review. The cumulative defects rendered the application unsustainable and incapable of being granted.
Court disposition
Application dismissed.
Orders
- The application is dismissed.
02
Material facts
Parties
Maquassi-Hills Contractors
Applicant Counsel: Mr LetsileOxy Trading (Pty) Ltd t/a D L Construction
RespondentMaquassi-Hills Local Municipality
Respondent03
Procedural history
Posture
Urgent Application / Application for Urgent Relief
04
Questions and positions
Legal issues
- 01
Whether the founding affidavit was properly commissioned and valid.
- 02
Whether the application could be heard ex parte.
- 03
Whether sufficient urgency was established to justify urgent relief.
- 04
Whether the requirements for an interdict were satisfied.
- 05
Whether the application disclosed prospects of success for a review.
Party arguments
- Applicant
- The applicant sought urgent relief, alleging irregularities in the tender process and requesting an interdict. The founding affidavit purported to set out the factual basis for urgency and the merits of the claim, but failed to explain the delay between the signing of the affidavit and the notice of motion, and did not adequately address the requirements for an interdict or prospects of success in a review.
- Respondent
- The respondents did not file papers or appear, as the application was brought ex parte. However, the court noted the absence of justification for proceeding ex parte and the lack of service on the respondents, as well as multiple procedural defects in the applicant's papers.
05
Court’s reasoning
Legal principles
- 01
Uniform Rules of Court; Commissioner of Oaths Act
An affidavit must be properly commissioned, with clear indication of where and when it was signed, and by whom.
- 02
Rule 6(12) of the Uniform Rules of Court
Urgent applications require a clear and sufficient factual basis for urgency, and urgency must not be self-created.
- 03
Rule 6(4) of the Uniform Rules of Court
Ex parte applications must be justified on the papers, with reasons why service cannot be effected.
- 04
Setlogelo v Setlogelo 1914 AD 221
The requirements for an interdict must be fully addressed in the founding papers.
06
Ratio, limits and disposition
Ratio decidendi
The application was fatally defective due to a founding affidavit that was not properly commissioned, with inconsistencies regarding the date and place of signing and the identity of the deponent. The applicant failed to justify proceeding ex parte or to provide reasons for lack of service on the respondents. No sufficient basis for urgency was established, and the urgency appeared self-created. The requirements for an interdict were not properly addressed, and the papers did not demonstrate prospects of success in any intended review. The cumulative defects rendered the application unsustainable and incapable of being granted.
Obiter and limits
- The confusion regarding the dates and the identity of the deponent undermines the credibility of the application.
- Self-created urgency does not justify the invocation of the court's urgent procedures.
- Applications brought ex parte without proper justification are procedurally improper and prejudicial to respondents.
Court disposition
Application dismissed.
- The application is dismissed.
Source and reliance status
North West High Court, Mafikeng
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
North West High Court, Mafikeng
Order
IN
THE NORTH WEST HIGH COURT
MAHIKENG
CASE NO. KPUM35/2018
In the matter between:
MAQUASSI-HILLS
CONTRACTORS
Applicant
AND
OXY TRADING (Pty) Ltd t/a D L CONSTRUCTION 1ST Respondent
MAQUASSI-HILLS
LOCAL MUNICIPALITY
2nd Respondent
URGENT
APPLICATION
KGOELE
J
DATE
OF HEARING
: 13 December 2018
DATE
OF JUDGMENT : 13 December 2018
FOR THE APPLICANT : Mr Letsile
REASONS
IN A POINT FORM
KGOELE J:
A.
THE PAPERS
[1] The founding affidavit is defective because it was not properly commissioned.
(a) Deponent signed it at Wolmaranstad;
(b) The Commissioner of Oath does not indicate where it was signed, but his/her stamp indicates that he/she is practising as an advocate at 27 Clement Street at Klerksdorp;
(c) Deponent indicated that he signed the founding affidavit on the 30 July 2018;
(d) The Commissioner of Oath indicated that the affidavit was signed on the 4 December 2018;
(e) The deponent indicated in the affidavit that he is a male person. The Commissioner is not sure of this because he/she refers to him as a she on two occasions.
Therefore there is no proper application before me / application is defective.
B.
EX PARTE APPLICATION
(a) There are no reasons on paper why the application cannot be served on respondents and/or basis to justify an application to have been brought ex-parte and to be heard as such.
(b) No provision made in the papers of the granting of a rule nisi and the return date thereof.
Therefore the application is defective and cannot be granted on an ex
parte basis.
C.
URGENCY
(a) No sufficient basis laid for the matter to be heard on an
urgent basis.
(b) The closing date of the tender in question was on the 30
November 2018 according to their factual averments.
(c) The confusion about the date on the founding affidavit makes
it difficult to discern when the application was made. Whereas the affidavit was signed on 30 July 2018, the notice of motion was signed on the 6 December 2018. No explanation of what made them to only make an application on the 6th when the affidavit was signed in July, and worse, when they had a meeting according to their papers with the respondent regarding this issues on the 29 November 2018. The urgency seems to be self-created.
D.
MERITS
(a) The requirements of an Interdict have not been sufficiently
dealt with all in the application or founding affidavit, Some were not even referred to al all.
(b) The prospect of success of the intended review application
has not been illustrated in the papers before Court.
E.
CONCLUSION
There is a myriad of defects in this matter. It is ill conceived and cannot be sustained and resuscitated in its current form. I am of the view that it should be dismissed.
ORDER
The application is dismissed.
____
A
M KGOELE
JUDGE
OF THE HIGH COURT
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