Oneconnect Solutions (Pty) Ltd v University of Johannesburg and Others (2023/122252) [2024] ZAGPJHC 713 (30 July 2024)

REPUBLIC

OF SOUTH AFRICA

IN

THE HIGH COURT OF SOUTH AFRICA

GAUTENG LOCAL DIVISION, JOHANNESBURG

Case No: 2023/122252

1. REPORTABLE: NO

2. OF INTEREST TO OTHER JUDGES: NO

3. REVISED: YES/NO

30 July 2024

In the matter between:

ONECONNECT SOLUTIONS (PTY) LTD

APPLICANT

And

UNIVERISTY

OF JOHANNESBURG

FIRST RESPONDENT

EIFFEL CORP (PTY) LTD

SECOND RESPONDENT

PERSONNEL VISION (PTY) LTD T/A

VISIONS

CONSULTING

THIRD RESPONDENT

This judgment was handed down electronically by circulation to the parties and/or parties’ representatives by email and by being uploaded to CaseLines. The date for hand down is deemed to be 30 July 2024

JUDGMENT

G S MYBURGH, AJ:

[1] This is an application for leave to appeal against a judgment and order which I delivered in January this year, in terms of which I dismissed the main application with costs.

[2] The test which applies is well known – in essence, a party who seeks leave to appeal is required to demonstrate that it has prospects of success on appeal; alternatively, that there is some other compelling reason to grant leave. It was not contended that

there are extraneous compelling reasons, and I do not think there are any. The question is thus simply whether I believe that another court might reasonably come to a different conclusion.

[3] Mr Kutumela, who appeared for the applicant argued that my judgment departs, in certain material respects, from established jurisprudence. He also argued that the effect of my judgment would be to pre-empt the decision of the court which may, in due course, come to hear the review. I am not persuaded that my judgment has either of the effects contended for; however, for reasons which appear

hereunder, I do not consider it necessary to deal further with this argument.

[4] An argument which I understood to be central to the applicant’s case was that I ought not to have found that the applicant’s tender in respect of the alternative product “Ultra” was in fact non-compliant (this for reasons which appear from my judgment) as the respondent had not raised that as a defence. I have to confess to being in two minds about this as I am not convinced that a distinction falls properly to be drawn between a tender which, on analysis, and bearing in mind what transpired during the bid clarification process, is found not to cover everything that was required, and one which is non-compliant. In either event, the price tendered would not cover everything that was required by the RFP or invitation to tender, and the price could accordingly be said to be misleading – as the university considered the applicant’s tender to be.

[5] That said, I accept that “non-compliant” is something of term of art and that another court might reasonably adopt a view not quite as narrow as that which I adopted and my reasonably come to a different conclusion – especially on this on this issue. I have accordingly decided that leave to appeal ought properly to be granted. As it appears to me that the issues are

essentially of a legal rather than factual nature, I am of the view that the appeal should lie to the Supreme Court of Appeal.

[6] I accordingly make the following order:

Order

a. The application for leave to appeal is granted.

b. The appeal shall lie to the Supreme Court of Appeal.

c. The costs of the application for leave to appeal shall be costs in the appeal.

G S MYBURGH

ACTING JUDGE OF THE HIGH COURT

JOHANNESBURG

APPEARANCES:

For the Applicant:

Adv L Kutumela

Instructed by:

Motsoneneng Bill Attorney Inc.

For the 1st Respondent:

Adv C Avidon

Instructed by:

Lawtons Africa

Date of Hearing:

20 June 2024

Date of Judgment:

30 July 2024