Special Investigation Unit v Phomella Property Investments (Pty) Ltd and Others (9839/17) [2021] ZAGPPHC 634 (23 September 2021)

HIGH COURT OF SOUTH AFRICA

(GAUTENG DIVISION, PRETORIA)

(1) REPORTABLE: NO

(2) OF INTEREST TO OTHER JUDGES: NO

(3) REVISED: yes

23 September 2021

CASE NO: 9839/17

Hearing before Rabie J by way of Zoom conference.

In the matter between:

THE SPECIAL INVESTIGATING UNIT

Applicant

and

PHOMELLA PROPERTY INVESTMENTS (PTY) LTD

First Respondent

THE MINISTER OF JUSTICE AND CORRECTIONAL

SERVICES

Second Respondent

THE MINISTER OF PUBLIC WORKS

Third Respondent

THE DIRECTOR-GENERAL: DEPARTMENT OF

PUBLIC WORKS

Fourth Respondent

REBOSIS PROPERTY FUND LTD

Fifth Respondent

BILLION GROUP (PTY) LTD

Sixth Respondent

S NGEBULANA

Seventh

Respondent

JUDGMENT

1. This is an application for leave to appeal. The applicant based its application on a number of grounds set out in a Notice of Application for Leave to Appeal. The grounds, for all practical purposes, touch upon every issue of the case and every finding made by this court.

2. The test to apply in an application for leave to appeal appears in section 17 (1) of the Superior Courts Act, Act 10 of 2013, which provides as follows:

"Leave to appeal may only be given when 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 judgements on the matter under consideration."

3. In my view it is not necessary to refer to all the grounds upon which the application is based. All the grounds have been argued during the earlier hearing of the matter and have been dealt with in the judgement of this court.

4. For purposes of the present application the matter should, in my view, be regarded holistically. The main thrust of the applicant’s case was that the seventh respondent, and through him the first and fifth respondents, to which I shall for ease of reference refer to as “the respondents”, acted unlawfully and that, for that reason, the court should exercise its discretion in favour of the applicant and order the respondents to pay the amount claimed as wasted expenditure. The respondents’ case was that they did not act unlawfully and should not be ordered to pay any amount.

5. The applicant’s case was that the respondents were involved in or had knowledge of the failure to follow an open bidding process and to comply with the needs assessment prescripts in order to favour them. It was submitted that there was connivance between the respondents and the DPW and the DOJ. Furthermore, that the respondents participated in malfeasance and maladministration.

6. As mentioned in the main judgement there is no direct evidence of the aforesaid and the applicant relies on inferences which, according to the applicant, should be drawn from the existing facts. So, for example, it was submitted that it has to be inferred that the respondents were fully aware of the strict requirements which apply if the open bidding process is to be avoided and also of the needs assessment which has to be done. In drawing these inferences the applicant relies on certain facts, for example that the seventh respondent had earlier dealings with the government.

7. In order to decide whether the respondents participated in malfeasance and maladministration the inferences to be drawn depend on the view the court would take of factors such as, inter alia, the contents of the correspondence and other documents, the refurbishment of the whole building, the fact that the whole building was leased and no short-term lessees retained. It would depend on the inferences which the court may draw from these and other factors, and the absence of evidence in respect of vital issues, which would result in the finding as to whether the respondents were innocent parties or not.

8. The adjudication of the application thus rest on inferences and conclusions to be drawn from facts and the absence of facts. Only by doing that can the court conclude as to whether the respondents were part of an improper and unlawful malfeasance and maladministration and whether the respondent should pay any amount to the applicant or not.

9. In such a scenario it would in my view be very difficult to find that another court may not reasonably come to a different conclusion and thus that an appeal may be successful. Consequently, the application for leave to appeal should in my view be granted. I agree with the submissions on behalf of the parties that leave to appeal to the Supreme Court of Appeal should be granted. As far as costs are concerned, the usual order should be made.

10. In the result, the following order is made:

1. Leave is granted to the applicant to appeal to the Supreme Court of Appeal against the whole of the judgement and order of this court on 2 September 2020.

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

C.P. RABIE

JUDGE OF THE HIGH COURT

23 September 2021

Counsel for Applicant: Adv RJ Raath SC

Adv JA Motepe SC

Attorney for the Applicant: State Attorney (Pretoria)

Wmotsepe@justice.co.za

Wmotsepe@justice.gov.za

Counsel for first and Fifth

Respondent:

Adv J Babamia SC

Adv H Mutenga

Attorney for 1st and 5th

Respondent:

Norton Rose Fulbright SA Inc

Brrent.Botha@nortonrosefulbright.com

Date of hearing: 1 September 2021

Date of judgment: 23 September 2021