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South Africa Order

North West High Court, Mafikeng

Maquassi-Hills Contractors v Oxy Trading (Pty) Ltd t/a D L Construction and Another (KPUM35/2018) [2018] ZANWHC 76 (13 December 2018)

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Professional case brief

Research organized from the available case record

Source document

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 Letsile

Oxy Trading (Pty) Ltd t/a D L Construction

Respondent

Maquassi-Hills Local Municipality

Respondent

03

Procedural history

  1. Posture

    Urgent Application / Application for Urgent Relief

04

Questions and positions

Legal issues

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

  1. 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.

  2. 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.

  3. 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.

  4. 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

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Judgment reading view

Judgment text

The complete available source text.

Source document

North West High Court, Mafikeng

Order

[2018] ZANWHC 76

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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Authorities

Authorities used by the court

Cases, legislation, regulations, and constitutional provisions identified in the available record.

Setlogelo v Setlogelo 1914 AD 221

Case cited

Uniform Rules of Court

Legislation

Legislation referenced in the available case record.

Commissioner of Oaths Act

Legislation

Legislation referenced in the available case record.

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