Raubex Construction (Pty) Ltd v HOD Mpumalanga Provincial Government: Department Public Works Roads and Transport and Others (Leave to Appeal) (1099/2020) [2020] ZAMPMBHC 39 (14 August 2020)

SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

MPUMALANGA DIVISION

MAIN SEAT

Case : 1099/2020

(1) REPORTABLE: YES / NO

(2) OF INTEREST TO OTHER JUDGES: YES/NO

(3) REVISED.

H.C. Jansen van Rensburg

SIGNATURE

Date : 2020

In the matter between

RAUBEX CONSTRUCTION (PTY) LTD

APPLICANT

And

THE HOD MPUMALANGA PROVINCIAL

1ST RESPONMDENT

GOVERNMENT : DEPARTMENT PUBLIC WORKS

ROADS AND TRANSPORT

THE MEC : MPUMALANGA PROVINCIAL

2ND RESPONDENT

GOVERNMENT : DEPARTMENT PUBLIC

WORKS, ROADS AMD TRANSPORT

ACTOPHAMBILI ROAD (PTY) LTD

3RD RESPONDENT

[as a joint venture partner of Actophambili

Roads / Imvula Roads JV]

JUDGMENT : APPLICANTS APPLICATION FOR LEAVE TO APPEAL

JANSEN VAN RENSBURG AJ

Introduction

[1]. This appeal relates to administrative law in terms of section 6 of the Promotion of Administrative Justice Act 3 of 2000 (the PAJA). The applicant applying for leave to appeal against the whole of the judgment handed down by myself on 23rd June 2020 in the High Court of South Africa Mbombela Division. The applicant submitted that the court erred in many ways in its judgment by not granting the relief sought in Part A of the Notice of Motion. The applicants’ grounds for its application for leave to appeal are contained in the Notice of Motion.

[2]. The history of the applicants’ main application is contained in the papers which has been dealt with in the main judgment. The application for leave to appeal is firstly directed at a full court of this Division alternatively to the Supreme Court of Appeal. [1]

[3]. The applicants alleges that the judgment by this court dealt with the merit of the applicants application which was dismissed by this court.

[4]. The applicant alleges that the court dealt with the requirements for an interim interdict and that it was inter alia in the ‘interest of justice’ read with its constitutional right and that no relief, other as an ‘urgent application’ would give effect to its legal action against the 1st and 2nd respondents. For this reason it is appealing against the judgment handed down by this court on 23rd June 2020.

GROUNDS FOR LEAVE TO APPEAL

[5]. The applicant refer to section 6 of the PAJA as basis for its main application and its application for leave to appeal. In this regard the applicant relies on an allegation that the awarding of the tender is an administrative action that stands to be ‘reviewed and set aside’. [2]

[6]. The applicant alleges that the court has failed to consider the grounds for the review in the founding affidavit and thereby failed to have exercised its discretion judicially.

[7]. The applicant alleges that the court referred to the applicant seeking ‘new relief’ and that the court failed to consider that previously the respondents were bias against the applicant. The court did not find that the applicant had a prima facie right to tender.

[8]. The applicant referred to the ’90 days period’’ for the respondents to submit reasons for its decision not to have awarded the tender to the applicant.

[9]. The remainder of the Notice for Leave to Appeal deals with the finding that the applicant is a major construction company and that financial aspects is not necessarily a reason for ‘urgency’. The applicant alleges that the court is restricted to judgments of this Division and not to the judgments of the SCA. [3]

[10]. The applicant alleges that it issued the review application and that the court found that the date whereby the respondents must respond (90 days) is only due by 4th August 2020. In this regard the applicant is questioning the courts remark that granting the relief would constitute a ‘dangerous example’. The applicant submitted that the matter should be case managed as its is practice in this Division.

[11]. The applicant alleges that the court did not address the requirements of irreparable harm in the light of the invalid administrative action by the respondents.

[12]. The applicant alleges that the court did not pay attention to any prospects of success for a review.

[13]. The applicant alleges that the court found that the applicant did not explain its potential harm it stands to suffer if the interim interdict is not granted.

[14]. The court erred in its findings pertaining to the harm of the community alternatively failed to properly balance the interests.

[15]. That the applicants previous applications were successful in reviewing the awarding of tenders to it.

ANALYSIS OF THE APPLICATION FOR LEAVE TO APPEAL

[16]. Prior to receiving reasons for not awarding of the tender to the applicant, the applicant launched this application to secure urgent relief ‘pending the determination of the relief sought in Part B the first to fourth respondents are interdicted and restrained from in anyway further acting upon the decision of the first and / or second respondents to award the public tender number P[...] : Rehabilitation of 11,8 km of road D 3930 from Arconhoek to Hluvulani in the Bohlabela Region, Mpumalanga.

[16.1.]. The applicant set out its purported complaints without referring to any procurement system requirements and provided no reasons by the 1st and 2nd respondents for not awarding the tender to the applicant. The applicant is relying on a previous judgment by the court and an allegation in that the 1st and 2nd respondents are bias against the applicant and it referred to some score cards. This was basically the reasons for the application for the granting of the urgent interim interdict; nothing more. At the time of the launching of the applicants urgent application, the 1st and 2nd respondents did not in terms of the PAJA submitted its reasons for the not awarding the tender to the applicant.

[16.2.]. The applicant submits that the implementation must be urgently stopped if the applicant is to have any chance of success and practically impugning in a decision to award the contracts.

[16.3.]. The applicant submits that if, at the stage when the review is heard the works are at an advantaged stage of implementation, the court will be loath to order the 1st and 2nd respondents to follow a proper procurement process from the start. For thos reason the urgent application was launched.

[17]. The requirements of urgent applications are the following –

[17.1.]. The first requirement to overcome is that of ’urgency’. Should the applicant succeed on ‘urgency’ the court then move to the second requirement.[4]

[17.2.] The second requirement which follows after the applicant succeeded with ‘urgency’ is the ‘merit of the application’

[18]. The applicant is now bringing an application for Leave to Appeal where its application in the main application was ‘struck off the roll’ due to the lack of ‘urgency’. As indicated above, the applicant did not pass the ‘test of ‘urgency’. From the Notice for Leave to Appeal, the applicant is referring to the merit of the interim application. A court may not usurp the

power and functions of the 1st and 2nd respondents as functionaries of Government but it must rather ensure that the concerned Governmental structures exercise its authority within the boundaries of the Constitution. In this specific application, there was no answer to the applicants’

requests for reasons for not awarding the tender to the applicants due to the 90 days time period which was applicable and which has not been terminated. For that matter there was no ‘reasons supplied by the 1st and 2nd respondents to be analysed, reviewed as set aside’.

[19]. This court has answered all the allegations alleged by the applicant in its main judgment dealing with ‘urgency’ for the review and setting aside the awarding of the tender by the 1st to 3rd respondents to the 4th respondent. the court has dealt with the submissions made by the 1st to 3rd respondents in the main application opposing that the applicants main application is ‘urgent’ and based on the lack of ‘urgency’, that this court should not entertain the applicants main application.

[20]. The applicant is relying on section 6 of the PAJA without specifying the exact section or sections it relies upon to have the tender by the 1st and 2nd respondents awarded to the 4th respondent reviewed and set aside. The applicant in the founding affidavit, referred to its rights and only that the 1st and 2nd respondents are ‘biased’ against the applicant in awarding tenders. The applicant refers to previous similar applications in which the applicant was successful.

I have indicated that each application has its own unique situation and circumstances to be evaluated. Previous judgments in favour of the applicant do not mean that this court should have just ‘rubber stamped the applicants main application’.

[21]. Section 33 of the Constitution of the Republic of South Africa act 108 of 1996 deals with the right to just administrative action. The PAJA came into operation on 30th November 2000. It is generally regarded as the codification of the administrative common law.

Section 5 of the PAJA reads as follows –

‘5. Reasons for administrative action

(1). Any person whose rights have been materially and adversely affected by administrative action and who has not been given reasons for that action may, within 90 days after the date on which that person became aware of the action or might reasonably have been expected to have become aware of the action, request that the administrator concerned furnish written reasons for the action.

(2). The administrator to whom the request is made must, within 90 days after receiving the request, give that person adequate reasons in writing for the administrative action.

(3). If an administrator fails to furnish adequate reasons for an administrative action it must, subject to subsection (4) and in the absence of proof to the contrary, be presumed in any proceedings for judicial review that the administrative action was taken without good reason.

(4)(a).An administrator may depart from the requirement to furnish adequate reasons in any proceedings if it is reasonable and justifiable in the circumstances, and must forthwith inform the person making the request of such a departure.

(b). In determining whether a departure as contemplated in paragraph (a) is reasonable and justifiable, an administrator must take into account all relevant factors, including –

(i). The objects of the empowering provision;

(ii). The nature, purpose and likely effect of the administrative action concerned;

(iii). The nature and extent of the departure;

(iv). The relationship between the departure and its purpose;

(v). The importance of the purpose of the departure; and

(vi). The need to promote an efficient administration and good governance.

(5). Where an administrator is empowered by any empowering provision to follow a procedure which is fair but different from the procedure which is fair but different from the provisions of subsection (2), the administrator may act in accordance with that different procedure.

(6)(a). ..................

(b). ..................’

[My underlining]

[22]. Section 6 of the PAJA reads as follows –

‘6. Judicial review of administrative action

(1). Any person may institute proceedings in a court or tribunal for the judicial review of an administrative action.

(2). A court or tribunal has the power to judicially review an administrative action if –

(a). The administrator who took it –

(i). Was not authorised to do so by the empowering provision;

(ii). Acted under delegation of power which was not authorised by the empowering provision;

(iii). Was biased or reasonably suspected of bais;

(b). A mandatory and material procedure or condition prescribed by an empowering provision was not complied with;

(c). The action was procedurally unfair;

(d). The action was materially influenced by an error of law;

(e). The action was taken –

(i). For a reason not authorised by the empowering provision;

(ii). For an ulterior purpose or motive;

(iii). Because irrelevant considerations were taken into account or relevant considerations were not considered;

(iv). Because of the unauthorised or unwarranted dictates of another person or body;

(v). In bad faith; or

(vi). Arbitrarily or capriciously.

(f). The action itself –

(i). Contravenes a law or is not authorised by the empowering provision; or

(ii). Is not rationally connected to -

(aa). The purpose for which it was taken;

(bb). The purpose of the empowering provision;

(cc). The information before the administrator; or

(dd). The reasons given for it by the administrator;

(g). The action concerned consists of a failure to take a decision;

(h). The exercise of the power or the performance of the function authorised by the empowering provision, in pursuance of which the administrative action was purportedly taken, is so unreasonable that no reasonable person could have so exercised the power or performed the function; or

(i). The action is otherwise unconstitutional or unlawful.

(3). If any person relies on the ground of review referred to in subsection (2)(g) he or she may in respect of a failure to take a decision, where –

(a) (i). An administrator has the duty to take a decision;

(ii). There is no law that prescribes a period within which the administrator is required to take a decision; and

(iii). The administrator has failed to take that decision.

Institute proceedings in a court or tribunal for the judicial review of the failure to take the decision on the ground that there has been unreasonable delay in the decision; or

(b). (i). An administrator has the duty to take a decision;

(ii). A law prescribes a period within which the administrator is required to take that decision; and

(iii). The administrator has failed to take that decision before the expiration of that period.

Institute proceedings in a court or tribunal for judicial review of the failure to take the decision within that period on the ground that the administrator has the duty to take the decision notwithstanding the expiration of that period’..

[23]. The applicant has literally ‘cast its net so wide’ in terms of section 6 of the PAJA by only alleging that the 1st and 2nd respondents were bias in terms of subsection 2(a)(iii) of the PAJA.

[24]. The applicant only responded to the 1st and 2nd respondents in a letter dated 6th May 2020 [5] requesting reasons for the awarding of the tender to the 4th respondent. In terms of section 5(2) of the PAJA, the 1st and 2nd respondent had time (90 days) until the 4th August 2020 to respond to this letter of the applicant. [6]

[25]. At the time of the hearing of the applicants urgent application, the reasons so requested by the applicant in terms of section 5(1) of the PAJA was not provided. One should read section 5 and 6 of the PAJA together as section 5 of the PAJA deals with providing written reasons as well as the departure from the requirements to give reasons for an administrative action. [7] No information was provided by the 1st and 2nd respondents at the time of dealing with the applicants’ urgent application read with section 5(2) of the PAJA.

[26]. I have referred to the founding affidavit and that the applicant spend a lot of time on the Constitutional rights and part B of the application but neglected to address ‘urgency’ adequately. [8]

[27]. The 1st and 2nd respondents submitted a number of aspects which is recorded in the main judgment. [9]

[28]. The court have referred to the requirements for a matter to be heard on an ‘urgent basis’.[10]

[29]. The court dealt in detail with the applicants allegations for the ‘urgency of this application to be heard.[11] The allegation by the applicant that the court dismissed the merit of the application is unfounded; the application was ‘truck off the roll’ due to lack of urgency.

IS THE JUDGMENT BY THE COURT APPEALABLE BEING ‘STRUCK OFF THE ROLL DUE TO LACK OF URGENCY’

[30]. The applicant submit that the appeal is appealable premised on the following grounds –

‘1. APPEALABILITY

1.1. The court order read in the context of the judgment as a whole and particularly in the light of the court’s reasons for thje order, dismisses the applicants application on the merits.

1.2. The court a quo dealt with all the requirements for an interim interdict, made findings against the applicant pertaining to every requirement for an interim interdict.

1.3. It is in the interest of justice that the order be appealed against.

1.4. The judgment with respect constitutes a failure of justice as appears inter alia from the grounds for leave to appeal'. [12]

[31]. From the outset the grounds for the applicants Application for Leave to Appeal is based on the incorrect facts. This court did not dismiss the applicants’ urgent application based on the merit of the application. The order reads as follows –

‘[56] The following order is made –

[1]. The applicants urgent application is struck off the roll with cost on party-and-party scale.

[2]. The cost of suit of the respondents to be paid by the applicant which cost will include cost of 2 counsel’. [13]

[32]. An order to ‘struck an application from the roll’ due to lack of ‘urgency’ is not appealable. There was no new facts which supported the applicants ‘urgency’ as reason for the court to dispense with the requirements of rule 6(12) of the Uniform Rules of the Superior Court.

[33]. Referring to the applicants reliance on section 6 of the PAJA, there is not a single allegation or reference to any of the subsections of section 6 of the PAJA with specific motivation why the applicant is disputing the actions by the 1st and 2nd respondents in awarding the tender to the 4th respondent. In this regard I am of the view that the applicants application is premature as this court, other as an allegation that the 1st and 2nd respondents have been bias against the applicant there is no allegation that the 1st and 2nd respondents acted contrary to section 6 of the PAJA. In this regard I am of the view that the applicant instituted legal action against the respondents without any substance. In this regard the 1st and 2nd respondents had 90 days as from May 2020 to submit reasons to the applicant, which might have assisted it in its application for judicial review. Without the reasons of the 1st and 2nd respondents, the application and the application for leave to appeal stand to fail.

[34]. The applicant submit that there were no ‘objective criteria applicable to the award of the tender’. [14] It is for this reason that the 1st and 2nd respondents in terms of the Act must be afforded the opportunity to respond. It is referred to as the ‘audi alteram partem rule’. The applicant cannot be allowed to make allegations whereby the 1st and 2nd respondents are excluded to provide any reasons, if any. To make one-sided assumptions is based on allegations and not in the interest

of justice. An applicant must prove its case on the papers and not via uncorroborated allegations in the absence of reasons provided by the 1st and 2nd respondents. Reference was made to Actaris South Africa (Pty) Ltd v Sol Plaatjies Municipality & Another [15] The applicant argued that the 1st and 2nd respondents should provide reasons as soon as possible and that the 90 day was the maximum amount of time to do so. In essence the applicant by virtue of its Notice for an Application for Leave to Appeal, concede that the 1st and 2nd respondent has a maximum period of 90 days to submit its reasons for awarding the tender to the 4th respondent. [16] The Act clearly state that the 1st and 2nd respondents have 90 days to submit its reasons to the applicant; nothing less.

[35]. Should the 1st and 2nd respondents failed to furnish reasons to the applicant the decision would have been deemed to be unlawful and liable to be set aside. [17] Should the 1st and 2nd respondents furnished reasons for not awarding the tender to the applicant, the applicant has to adhere to the internal procedures

laid down for judicial review as prescribed by the PAJA and other related Acts. [18] I need not go into detail in this regard other as to remark that section 7 of the PAJA comes into play, unless I am wrong.

PROSPECTS OF SUCCESS

[36]. The applicant makes a bald statement that a court of appeal would come to a different finding of fact and different conclusion when applying the legal principles to the facts on the main application.

[37]. In this regard a court should look at section 17(1) of the Superior Courts Act 10 of 2013 (the Act). Section 17(1) of the Act provides as follows –

‘Leave to appeal may only be given where the judge or judges concerned are of the opinion that –

‘(a). (i). The appeal would have reasonable prospects 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) The decision sought on appeal does not fall within the ambit of section 16(2)(a); and

(c) Where the decision sought to be appealed against 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’

[38]. Prior to the promulgation of the Act, the test was whether there was reasonable prospects that another court may come to a different conclusion?. In Zweni v Minister of Law and Order [19] Harms JA in dealing with the principles to be applied to determine the applicability against a judgment, held as follows –

‘[6]. Leave is granted if there is a reasonable prospects of success. So much trite. But, if the judgment or order sought to be appealed against does not dispose of all the issues between the parties the balance of convenience must, in addition, favour a piecemeal consideration of the case. In the words, the test is then whether the appeal if leave were given would lead to a just and reasonable prompt resolution of the real issue between the parties’.

[39]. It is also trite that decisions on preparatory or procedural character ought not to be appealable. [20] The emphasis is now on the consideration of whether to grant leave to appeal which will lead to the expeditious and cost-effective

determination of the main dispute between the parties and such contribute to its final solution.

[40]. The Act has now been ushered a new threshold in terms of which the bar for leave to appeal has been raised. In terms of section 17(1), leave to appeal would only be granted under circumstances set out in the section.

[41]. 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. In this regard the High Court has indeed confirmed the raise and applicability of the threshold in applications for leave to appeal. [21] The former test whether leave to appeal should be granted was ‘a reasonable prospect that another court might come to a different conclusion’. [22] It is clear that the use of the word ‘would’ in the new statue indicates a measure of certainty that another court will differ from the court whose judgment is sought to be appealed against. The grounds for appeal advanced in the notice for leave to appeal cover virtually every aspect of the aspects that the court dealt with in its judgment. In view of the peremptory provision that leave to appeal ‘may only’ be given if the court is of the view that the appeal has a reasonable prospect of success or if there is some other compelling reason why the appeal should be heard, it is evident that the test captured in section 17(1)(a) is two-fold. The test that applied previously in applications of this nature, was whether there were reasonable prospect that another court may come to a different conclusion. Reference is made to Nannen and Others v Momentum and Others [23] where the court held that –

‘What emerges from section 17 (1) is that the threshold to grant a party leave to appeal has been raised. It is now only granted in the circumstances set out and is deduced from the words 'only' used in the said section. (See The Mont Chevaux Trust v Tina Goosen & 18 Others 2014 JDR 2325 (LCC) at para [6]). Bertelsmann J held as follows –

‘ 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 (see Van Heerden v Cronwright & Others 1985 (2) SA 342 (T) at 343H). 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’. [24]

[My emphasis]

[42]. This view can further be substantiated if it is considered that Selke J’ said in Starr v Ramnath and Others [25] that –

‘[i]n the idiom of English, the words ‘will’ and ‘would’ are possessed of many variations of meanings and shades of meaning’.

[43]. In section 17(1) the word ‘would’ replaced the word ‘may’ as was previously the case. Linguistically considered the word ‘would’, is the past tense of the subjective mood of the word ‘will’. [26] As stated in MEC Health, Eastern Cape v Mkhitha [27]–

‘An applicant for leave to appeal must convince the court on proper grounds that there is a reasonable prospect or realistic chance of success on appeal. A mere possibility of success, an arguable case or one that is not hopeless, is not enough. There must be a sound, rational basis to conclude that there is a reasonable prospect of success on appeal.’

[43] It is trite that section 17 empowers the trial judge to give leave to appeal, and that that power must be exercised judicially. In view of the particular manner in which section 17(1)(a)(i) is phrased the court can rely on the decision of the Appellate Division , as the Supreme Court of Appeal then was, for guidance as how to approach an application for leave to appeal in a context where it is prescribed that leave to appeal should not be granted unless the applicant will have (would) have a reasonable prospect of success on appeal. [28]

[44] It is, in addition, trite that an applicant seeking leave to appeal must set out its grounds of appeal succinctly and in unambiguous terms in order to enable the court and the respondent to understand the case the applicant seeks to make out and which the respondent has to meet in opposing the application for leave to appeal. [29] A mere mechanical approach in an application for Leave to Appeal is not enough by just level criticism against the court hearing the matter as this approach does not further the application for leave to appeal.

[45] I cannot deal with each individual submission contained in the applicant’s notice in the written judgment, although each has been considered. In particular, where I am of the view that there is no reasonable prospect that another court will have a different view on either fact or law pertaining to aspects that were argued during closing argument that are addressed in the judgment, these will not again be traversed. It will serve no purpose to re-write the judgment.

[46]. It is important to note that our courts have held that this is now trite that a judgment or order is a decision which, as a general principle. Has three attributes namely –

[42.1.]. The decision must be final in effect and not susceptible of alteration by the court of first instance;

[42.2.]. It must be definitive of the rights of the parties; and

[42.3.]. It must have the effect of disposing of at least a substantial portion of the relief claimed in the main proceedings. [30]

[43]. The peremptory requirements in subsection 17(1)(a),(b) and (c) are conjunctive and limit the circumstances in which leave to appeal may be granted. [31] Accordingly notwithstanding any compliance with any one of the requirements, the failure to comply with all of the requirements means that this is fatal to any application for leave to appeal.

[43.1.]. Section 17(1) thus lays down a new legal regime for the grant of leave to appeal. Through interpretation of section 20(1) of the Supreme Court Act 59 of 1959 the phrase ‘judgment or order’ the courts developed the then test for appealability. It was held that the order was only appealable if it was ‘final and not susceptible to change by the first instance court , definitive of the rights of the parties and had the effect of

disposing of a substantial portion of the relief claimed in the proceedings’ [32].it is noteworthy to refer to Capendale and Another v Municipality of Saldana Bay and Others; In Re Capendale and Another v 12 Main St Langebaan and others supra –

‘[13]. Applying the Natal Pension Fund Case the court will apply a purposive approach to the interpretation of this section. Adopting such an approach one is therefore driven to conclude that the Legislature intended that the function of courts of appeal was to be result driven and that the trial court is required to carefully consider whether a hearing on appeal would ultimately lead to a disposal of the real issues between the parties’

[16]. Considering these provisions of the act in their general context, it seems to me that it is no longer ‘business as usual’,

....when it comes to the intended prosecution of an appeal. A matter must meet the strict criteria laid down by the legislature before it will be referred to the Supreme Court of Appeal, one of the most important considera- tions undoubtedly being the practice of pursuing an appeal for essentially unnecessary protracted litigation, a state of affairs which would tend to bring the administration of justice into disrepute in the eyes of the general public’. [33]

[43.2.]. Section 17(1)(c) of the Superior Court Act 10 of 2013 represents a departure from the legal regime under the Supreme Court Act 1959. Section 17(1)(c) targets interlocutory orders and orders that do not dispose of all the issues in the case, thereby creating a risk of piecemeal litigation.

[43.3.]. Section 17(1)(c) deals with decisions such as the present one that ‘do not dispose of all the issues in the case’. In respect of such a decision an appeal only lies in the applicants application for leave to appeal which is able to show that the grant of leave to appeal ‘would lead to a just and prompt resolution of the real issues between the parties’. In this instance the real issues between the parties have not been determined as the application was struck from the roll.

[43.4.]. The criterion that it introduces for whether or not to grant leave to appeal is however novel. [34] It imposes the onus on the applicant for leave to appeal to prove that the grant of leave to appeal would lead to a just and prompt

resolution of the real issues between the parties. It is clear that the main issues in the main application in this matter being Part B of the Notice of Motion, are not interlocutory proceedings but is still pending for some time in future. [35]

[44]. The applicant did not demonstrate that its right to participate in a lawful, fair, equitable, transparent, competitive and cost-effective procure- ment process has been infringed based on the lack of the 1st and 2nd respondents rights to have responded on the applicants’ request for reasons which was only forthcoming on or before 4th August 2020.

CONCLUSION

[45]. If however despite the applicants anxiety he could be afforded a substantial redress in an application in due course the application does not qualify to be enrolled and heard as an urgent application.

[46]. In causa the order sought to be appealed against neither dispose of any issue at all nor is it final or definitive of the rights of the parties. In the present application, as the order as it stand does not venture into the merit of the application, The main judgment dealt with the applicants motivation for granting urgent interim interdict pending Part B of its Notice of Motion. The applicant referred to its rights in terms of granting the interim interdict as basis for Part A to be heard on an ‘urgent basis’.

[47]. I have dealt with the requirements of an application for leave to appeal the judgment in this matter. Having regard to the numerous flaws in the applicants’ application. I am not persuaded that another court would come to a different conclusion and grant the applicant the interim relief as sought in the Notice of Motion in the main application.

[48]. The applicants urgent application was based on allegations without any substance. An appeal will, only serve to delay, rather that accelerate the resolution of the real issues and will not result in a ‘just and prompt’ resolution of the issues.

[49]. Due to the outstanding response to the request for reasons required by the applicant directed to the 1st and 2nd respondents and the lack of urgency, the application was’ struck off the roll’ and cost was awarded against the applicant on a party-and-party scale.

[50]. The order by the court is not subjected to appeal because the order does not finally dispose of any issues in the matter and is not susceptible to an appeal in terms of the test laid down by section 71(1) of the Superior Court Act 10 of 2013 as the order by this court in the applicants urgent application, did not pronounce on any dispute between the parties in the main application.

COST

[51]. Cost should follow suit in that the applicant has to pay the cost of the 1st and 2nd respondents in this application for leave to appeal.

ORDER

[52]. The following order is made –

[52.1.]. The application for leave to appeal is dismissed.

[52.2.]. The applicant is ordered to pay the cost of the 1st and 2nd respondents on a party-and-party scale.

H.C. JANSEN VAN RENSBURG

ACTING JUDGE OF THE HIGH COURT

MBOMBELA

SENT VIA EMAIL DUE TO COVID-19 REGIULATIONS

Date of hearing: August 2020

Date of judgment: August 2020

APPLICANT

Du Toit Smuts & Partners

Peyper Attorneys

Email : sonel@peyperattorneys.co.za

Ref : S TOWNSEND/mg/R1/19(PEY12/1)

1ST AND 2ND RESPONDENT

State Attorney Pretoria

Email: MLetsoko@justice.gov.za

Ref : Mr MO Letsoko

3RD AND 4TH RESPONDENTS

VZLR Incorporated

E mail: koena@vzlr.co.za

Ref : Mr FK Nong/Natasha

[1] Introduction to the Notice for Leave to Appeal.

[2] Para 2.2 of the Notice for Leave to Appeal.

[3] Para 2.18 of the Notice for Leave to Appeal.

[4] Setlogelo v Setlegelo 1914 AD 221; Webster v Mitchell 1948 (1) SA 1186 (WLD); Gool v Minister of Justice and Another 1955 (2) SA 682 (CPD); Molteno Brothers and Others v South African Railways and Others 1936 AD 321 at 329 and 331’

[5] Page 142 of the bundle.

[6] PAJA section 5 (1) and (2).

[7] Section 5(3) and (4).

[8] See para [13.12] and [22] of the judgment in the main judgment.

[9] See para [16] of the main judgment.

[10] See para [19] to [21] of the main judgment.

[11] See para [22] to [43] of the main judgment.

[12] Page 2 para 1 of the Application for Leave to Appeal.

[13] Page 22 of the main judgment at [56].

[14] Para 2.12 of the Notice for the Application for Leave to Appeal.

[15] Unreported case Northern Cape High Court (213/2006).

[16] Notice for application for Leave to Appeal page 6 para 2.12.

[17] Section 5(2) and (3) of the PAJA.

[18] Section 7 of the PAJA and other Acts.

[19] 1993 (1)All SA (A) at [6].

[20] Pretoria garrison Institutes v Danish variety Products (Pty) Ltd 1948 (1) SA 839 (A) at 848.

[21] Acting National Director of Public Prosecutions & Others v Democratic Alliance (19577/2009) [2016] ZAGPPHC at para 25 where Ledwaba DJP held the following – ‘It is clear that the threshold for granting leave to appeal against a judgment of the High Court has been raised in the new Act. The test whether leave to appeal should be granted was a reasonable prospect that another court might come to a different conclusion, see van Heerden v Cron Wright & Others 1985 (2)_ SA 342 (T) at 343 H. 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’

[21] Acting National Director of Public Prosecutions & Others v Democratic Alliance (19577/2009) [2016] ZAGPPHC at para 25 where Ledwaba DJP held the following –

‘It is clear that the threshold for granting leave to appeal against a judgment of the High Court has been raised in the new Act. The test whether leave to appeal should be granted was a reasonable prospect that another court might come to a different conclusion, see van Heerden v Cron Wright & Others 1985 (2)_ SA 342 (T) at 343 H. 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’

[22] Van Heerden v Cronwright & Others 1985 (2) SA 342 (T) at 343H.

[23] (6796/05, 2275/05) [2017] ZAGPPHC 433 (14 June 2017).

[24] Nannen supra at para [5];Honda Giken Kogyo Kabushiki Kaisha t/a Honda Motor Co Ltd v Big Boy Scooters (24784/2016) [2017] ZAGPPHC 752 (15 November 2017); BWM Financial Services (SA) (Pty) Ltd v Finlay and Others (55858/10, 55860/10, 56219/10) [2017] ZAGPPHC 383 (31 March 2017).

[25] [1954] 2 All SA 106 [N] 113.

[26] Amalgamated Retail Ltd v Spark and Another [1991] 3 All SA 545 (SE).

[27] (1221/15) [2016] ZASCA 176 (25 November 2016) paragraph [17].

[28] Rex v Baloi 1949 (1) SA 523 (A).

[29] Songono v. Minister of Law and Order 1996(4) S.A. 384 (E) 395J-386A; Philip v Estate Agency Affairs Board (39922/12) [2013] ZAGPPHC 276 (2 October 2013) para [31]; Fuku v Mpoka (A137/2013) [2013] ZAFSHC 152 (19 September 2013) para [5]; Lewis NO and Others v Cooper NO and Another, Lewis v Soundprops 236 (Pty) Ltd and Others (11292/08,

14889/08) [2009] ZAWCHC 51 (27 February 2009) para [2]; Xayimpthe court and Others v Chairman Judge White Commission (formerly known as Browde Commission) and Others [2006] JOL 16596 (E).

[30] Marsay v Dilly [1992] ZASCA 114; 1992 (3) SA 944 (A) at 962 F.

[31] City of Cape Town v South African national Roads Agency Limited (6165/2012) [ 2104] ZAWCHC 151 (8 October 2014) at para 5; Capendale

and Another v municipality of Saldhanha Bay and Others, In Re Capendale and Another v 12 Main St Langebaan (Pty) Ltd and Others

(6580/2012); 840/2012 [2014 ZAWCHC 3 (29 January 2014] at para 9.

[32] Zweni v Minister of Law and Order 1993 (1) SA 523 (A) at 535 F – I; Minister of Health and Others v Treatment Action Campaign and Others (NO) 2002 (5) SA 703 (CC).

[33] Capendale supra at para 13 and 16.

[34] Nova property Group Holdings Ltd and Others v Corbett and Another 2016 (4) SA 317 (SCA) at para 11 re the unqualified right of access to securities register.

[35] City of Cape Town supra at paras 6 and 7.