Utilities World (Pty) Ltd v City of Matlosana Municipality and Others (UM93/2020) [2020] ZANWHC 58 (22 June 2020)

IN THE HIGH COURT OF SOUTH AFRICA

NORTH WEST DIVISION, MAHIKENG

Case Number: UM93/2020

In the matter between:

UTILITIES WORLD (PTY) LTD

APPLICANT

AND

CITY OF MATLOSANA MUNICIPALITY

1st RESPONDENT

MTIMANZE POWER C ENHLE TASH JV

2nd RESPONDENT

POWER-C METERING AFRICA (PTY) LTD

3rd RESPONDENT

CIGICELL (PTY) LTD

4th RESPONDENT

JUDGMENT

STANTON, AJ

INTRODUCTION:-

[1] This matter came before this Court as an urgent application in terms of which the applicant requests to interdict the implementation of a contract, pending a contemplated review application to set aside the award of the tender to the successful bidder.

[2] The second respondent and the third respondent (“the Municipality”) (“the JV”) did not oppose the application. The fourth respondent filed a notice to abide.

[3] It is common cause that:-

3.1 The applicant was an unsuccessful bidder in the procurement process undertaken by the Municipality in 2019;

3.2 The JV had been appointed as the successful bidder, and were awarded the contract to render pre-paid electricity vending services to the Municipality for a period of 3 years; and

3.3 The contract commences on 1 July 2020.

[4] The applicant opposes the application for interim relief on the merits thereof and also raised two points in limine. The basis of the opposition is-

4.1 the lack of authority to bring the application;

4.2 the lack of urgency;

4.3 that no prima facie right (prospects of success on review) is made out in the founding papers;

4.4 that no irreparable harm proven; and

4.5 that the balance of convenience does not favour the granting of interim relief.

[5] FACTUAL CHRONOLOGY:-

5.1 According to the Municipality, Mr A Kodesh, who is a director of both the applicant and the fourth respondent (the current service provider) had been aware of the fact that the joint venture had been the successful bidder since 7 February 2020.

5.2 On 17 February 2020, the applicant’s attorneys set a deadline of 19 February 2020 for approaching the Court for “appropriate relief”.

5.3 The applicant again threatened on 17 March 2020 to bring an application, should their demand not be complied with by 19 March 2020.

5.4 The applicant, after the letter of 17 March 2020, waited a further eleven weeks until filing the application.

5.5 According to the applicant, the grounds upon which condonation is sought, are:-

5.5.1 The application was almost ready during the week of 23 March 2020, but the filing of papers was delayed by the Coronavirus lockdown; and

5.5.2 The JV will commence performing their obligations on 1 July 2020.

[6] I requested Mr AC McKenzie, on behalf of the applicant, and Mr MG Hitge, on behalf of the Municipality, to address me on the points in limine as well as the merits of the matter, as I did not wish to deal with the matter on a piecemeal basis in view of the technical problems

experienced at Court.

URGENCY:-

[7] In order to advance an application on an urgent basis, an applicant must first obtain condonation.[1] The manner in which the Courts have interpreted the provisions of Uniform Rule 6(12)(a) and (b) is trite.[2]

[8] In Eniram (PTY) Ltd v New Woodhome Hotel (PTY) Ltd[3] the following had been stated respect of urgency:-

“I regard it as desirable that an applicant seeking to dispense with the ordinary procedure should set out in his affidavit that he regards the matter as one of urgency, and should refer explicitly to the circumstances on which he bases this allegations and the reasons why he claims that he could not be afforded substantial relief at the hearing in due course.”

[9] It is incumbent on an applicant to persuade the Court that the non-compliance with the Rules, and the extent thereof, are justified on the grounds of urgency.[4]

[10] This Court in Nelia’s Liquor Store CC t/a Safari Liquor City v Vresthena (PTY) Ltd & Another had recently held as follows[5]:-

“[36] Under the circumstances and having regard to the proverbial red lights which came on during June 2018, one would have expected the Applicant to follow-up, make enquiries and take action to ensure and safeguard the rights which it perceives it has in terms of the lease agreement with the First Respondent.”

[11] Mr McKenzie, with reference to the judgment in the matter of East Rock Trading 7 (Pty) Ltd v Eagle Valley Granite (Pty) Ltd,[6] argued that the applicant would not be afforded substantial redress if the interim relief is not granted. He added that by the time that the review is heard, the 36-month period of the contract may already have largely expired, or the review court may be of the view, given the important nature of the service rendered and possible prejudice to the JV, that the tender should not, despite its unlawfulness, be set aside.

[12] Mr McKenzie also relied on the judgment in Millennium Waste Management (Pty) Ltd v Chairperson, Tender Board: Limpopo Province,[7] where the Supreme Court of Appeal held as follows:-

“It appears that in some cases applicants for review approach the High Court promptly for relief but their cases are not expeditiously heard and as a result by the time the matter is finally determined, practical problems militating against the setting-aside of the challenged decision would have arisen. Consequently the scope of granting an effective relief to vindicate the infringed rights

becomes drastically reduced. It may help if the High Court, to the extent possible, gives priority to these matters.”

[13] The Court in the matter of Mogalakwena Local Municipality v Provincial Executive Council, Limpopo and Others[8] described in the following terms what follows upon an applicant having established that it will not be able to be afforded substantial redress at a hearing in due course:-

“It seems to me that when urgency is in issue the primary investigation should be to determine whether the applicant will be afforded

substantial redress at a hearing in due course. If the Applicant cannot establish prejudice in this sense, the application cannot be urgent. Once such prejudice is established, other factors come into consideration. These factors include (but are not limited to): whether the Respondents can adequately present their cases in the time available between notice of the application to them and the actual hearing, other prejudice to the Respondents and the administration of justice, the strength of the case made by the Applicant and any delay by the Applicant in asserting its rights. This last factor is often called, usually by counsel acting for respondents, self-created urgency.”

UNIFORM RULE 6(12) AND ITS APPLICATION IN THIS MATTER:

­­­­­­­­­­­­[14] In the exercise of its discretion, the Court should apply the requirements set by Uniform Rule 6(12)(a) and (b) and apply same to the facts before it.[9]

[15] The inappropriate application and use of the provisions of Uniform Rule 6(12) has in the past been labelled as an abuse of the court process. In the matter of Vena and Another v Vena and Others,[10] Jones J stated the following:-

“My finding was that the Applicant’s allegations did not comply with Rule 6(12)(b) which requires him to set out explicitly the circumstances rendering the matter urgent and also the reasons why he will not be afforded substantial redress at a hearing in the ordinary course. He gave no reasons at all why he could not get substantial redress at a hearing in due course. The circumstanced allegedly giving rise to the commercial urgency upon which he relied were the reverse of being explicit. Instead, they were set out in vague, incomplete and insubstantial terms and did not seen to me to have bearing on the relief sought in the notice of motion or the issues in dispute, other than that the divorce between the parties was disruptive of the business of the service station. The grounds of urgency alleged certainly did not justify giving the respondents two court days within which to give notice of an intention to oppose and to file opposing affidavits.”

[16] An applicant must not only set forth sufficient grounds, but must also explain any dilatory behaviour on its part. The onus to do so rests squarely on an applicant.

[17] Mr McKenzie confirmed that the review proceedings has not yet been launched by the applicant.

[18] In my view, the applicant fails to sufficiently explain the delay between 19 February 2020 and 19 March 2020 and also proffers no proper explanation for the delay between 1 May 2020 and 8 June 2020 when the application had been filed.

[19] The National lockdown did not preclude the hearing of urgent applications, and to the contrary, the Honourable Judge President of this Court issued Practice Directives confirming the accessibility of Court in this regard.

[20] It is important to note that the Uniform Rule 6(12) also requires absence of substantial redress. This is not equivalent to the irreparable harm that is required before the granting of an interim relief. It is something less. The applicant may still obtain redress in an application in due course but it may not be substantial. Whether an applicant will not be able obtain substantial redress in an application in due course will be determined by the facts of each case. An applicant must make out his cases in that regard.[11]

[21] I am not persuaded that the applicant has demonstrated that it would not obtain substantial redress at a hearing in due course.

[22] In view of my findings on urgency, I do not address the remaining arguments herein.

ORDER:

[23] Therefore, and having considered the facts in this matter, the submissions made on behalf of the parties and the prevailing and applicable legal framework, the following order is made:

“The application is struck from the roll, with costs.”

___________

A STANTON

ACTING JUDGE OF THE HIGH COURT

NORTH WEST DIVISION: MAHIKENG

APPEARANCES

DATE OF HEARING

: 18 JUNE 2020

DATE OF JUDGEMENT

: 22 JUNE 2020

COUNSEL FOR APPLICANT

: ADV AC MCKENZIE

COUNSEL FOR 1ST RESPONDENT : ADV MG HITGE

ATTORNEYS:-

FOR APPLICANT

: MAREE & MAREE ATTORNEYS

11 Agaat Avenue

Riviera Park

MAHIKENG

FOR FIRST RESPONDENT : Van Rooyen Tlhapi Wessels Inc.

09 Proctor Avenue

[1] Rule 6(12) of the Uniform Rules of Court.

[2] Republikeinse Publikasies (EDMS) BPK v Afrikaanse Pers Publikasies (EDMS) BPK 1972(1) SA 773. (A) at 782; Gallagher Estate v Norman’s Transport Lines (PTY) Ltd 1992(3) SA 500 (WLD) at 502.

[2] Republikeinse Publikasies (EDMS) BPK v Afrikaanse Pers Publikasies (EDMS) BPK 1972(1) SA 773.

(A) at 782; Gallagher Estate v Norman’s Transport Lines (PTY) Ltd 1992(3) SA 500 (WLD) at 502.

[3] 1967(2) SA 491 (E) at 493.

[4] Caledon Street Restaurants CC v D’Alviera 1998 JOL 1832 (SE) at pg 7 – 9.

[5] Unreported case number UM39/2019 North West High Court, dated 2 May 2019.

[6] 2011 JDR 1832 (GSJ) para 9.

[7] 2008 (2) SA 481 (SCA) para 34.

[8] [2014] 4 ALLSA 67 (GP) at par [64].

[9] Van Winsen, The Civil Practice of the Superior Courts of South Africa, 3rd ed, page 73, Van Loggerenberg Erasmus Superior Court Practice Vol 2 Juta at D1087 and Harms Civil Procedure in the Supreme Court,

LexisNexis, at B-74.

[10] 2010 (2) SA 248 (ECP) at par [5].

[11] Nelia’s Liquor Store CC t/a Safari Liquor City v Vresthena (PTY) Ltd & Another.