Nketoana Local Municipality v Pro-plan Consulting Engineers (Pty) Ltd and Another (1574/2021) [2021] ZAFSHC 169 (19 August 2021)

IN THE HIGH COURT OF SOUTH AFRICA

FREE STATE DIVISION, BLOEMFONTEIN

Case No.: 1574/2021

In the matter between:

NKETOANA LOCAL MUNICIPALITY Applicant

And

PRO-PLAN CONSULTING ENGINEERS (PTY) LTD First Respondent

MAKHAOTSE, NARASMIMULU

AND ASSOCIATES (PTY) LTD Second Respondent

(For Leave to Appeal)

IN RE:

PRO-PLAN CONSULTING ENGINEERS (PTY) LTD Applicant

NKETOANA LOCAL MUNICIPALITY First Respondent

HEARD ON: 18 JUNE 2021

JUDGMENT BY: MATHEBULA, J

DELIVERED ON: 19 AUGUST 2021

[1] On 13 May 2021, I handed down an order granting an urgent application brought by the applicant and dismissing the counter-application by the first respondent in the main case. This application for leave to appeal is against the whole of the judgement and order pertaining to the granting of the application only. It does not concern itself with the dismissal of the counter-application. The first respondent in these proceedings is now represented by Mr L Halgryn SC assisted by Mr J.M.C. Johnson. Counsel for the applicant is still Mr W.H. Pocock.

[2] The applicant is relying on section 17(1) of Act 10 of 2013 which provide that: -

17(1) 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;

(b)…

(c) …

[3] It is settled law that the introduction of this section imposes a much more stringent threshold as compared to the repealed section dealing with matters of this nature. The courts have repeatedly held that the bar has been raised for granting leave to appeal.[1] In State v Smith the court held that there must be sound and rational basis for the conclusion that there are prospects of success on appeal.[2] This means that the test as laid out cannot be applied lightly.

[4] The grounds of appeal as couched in the notice filed of record are confounding and difficult to fathom. They are scattered all over the paragraphs in bits and pieces. I broached this aspect with counsel for the first respondent who kept on repeating the same point and at times arguing against his own case. The difficulty that confronted him is that the answering papers contained inadequate facts and the case was poorly argued primarily because of that reality.

[5] The main ground of appeal is that the agreement that governs relations between the parties is unlawful. This is the same agreement that the Municipal Manager continued to authorise payment of invoices that were submitted by the first respondent for the works performed by them. Not only that, on the very same agreement that is deemed unlawful, he clandestinely appointed the second respondent to do some part of the works while the other parts were left with the first respondent. It cannot be that only part thereof is unlawful not the whole of it. The case that was argued during the hearing is different to the one presented during the hearing of the application for leave to appeal.

[6] The contention on whether the contract was unlawful or not was based on the Treasury Reports. Clearly this reliance was misplaced as the reports dealt with other contractors not the respondent. In the application before me, counsel for the applicant was arguing his case beyond his papers. That cannot be, because you stand and fall by the papers filed. The substance of the papers for the applicant is that the factual allegations were largely unverified, incorrect and unsubstantiated. I have extensively dealt with instances that the allegations made by the Municipal Manager simply did not make sense and as such ought to be rejected. Such speculations paled into insignificance when compared with formidable evidence tendered by the applicant.

[7] It seems that the high-water mark of the application is the purported finding that the relationship between the parties is “properly regulated by an agreed contractual regime” as contained in paragraph 23 of the main judgment. The applicant is deliberately misconstruing the paragraph in order to have a second opportunity to present its case before another court. In fact, counsel for the applicant devoted much time making submissions which are appropriate for a review application. He was simply repeating aspects occupying substantial part of his heads of argument.

[8] These submissions do not assist the case for the applicant. The parties until the Municipal Manager acted in the manner that he did, regulated their affairs in terms of the written agreement. There is no denying that there is a contract which mention the parties, what must be done and the rate or amount to be paid. This finding does not pronounce on whether the agreement is lawful or not. Even if it is not in accordance with the law, the parties must comply with it until it is set aside. It is still open to the first respondent to launch a review application based on the applicable grounds. There is no merit in the argument that the judgment is a stumbling block preventing the applicant to approach the court in an appropriate manner.

[9] On the basis of the aforegoing reasons, I conclude that there are no prospects of success.

[10] I make the following order: -

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

___________________

M. A. MATHEBULA, J

On behalf of Applicant: Adv.

L Halgryn SC assisted by Adv. JMC Johnson

Instructed by: Phatshoane

Henney Incorporated

BLOEMFONTEIN

On behalf of the Respondent 1: Adv. WH Pocock

Instructed by: Tiefenthaler

Attorneys

SANDTON

On behalf of the Respondent 2: No appearance.

/tkwapa

[1] Mont Chevaux Trust v Goosen and Others (LCC14R/2014) [2014] ZALCC 20 (3 November 2014).

[2] S v Smith (26/94) [1994] ZASCA 157 (17 November 1994).