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[2020] ZAWCHC 98
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Department of Agriculture, Forestry and Fisheries and Another v B Xulu & Partners Incorporated and Others (6189/2019) [2020] ZAWCHC 98 (10 September 2020)
THE
HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION)
JUDGMENT
In
the matter between
Case
No: 6189/2019
THE
DEPARTMENT OF AGRICULTURE, FORESTRY AND FISHERIES
FIRST
APPLICANT
THE
DEPARTMENT OF ENVIRONMENTAL AFFAIRS, FORESTRY AND FISHERIES
SECOND
APPLICANT
and
B
XULU & PARTNERS INCORPORATED
FIRST
RESPONDENT
THE
SHERIFF OF THE HIGH COURT FOR PRETORIA CENTRAL, MR T F SEBOKA NO
SECOND
RESPONDENT
STANDARD
BANK OF SOUTH AFRICA
THIRD
RESPONDENT
FIRST
NATIONAL BANK OF SOUTH AFRICA
FOURTH
RESPONDENT
BARNABA
XULU
FIFTH
RESPONDENT
Coram:
Rogers J
Heard
:
3 September 2020
Delivered:
10 September 2020 (by
email to the parties and same-day release to SAFLII)
JUDGMENT
Rogers
J
[1]
This is an application, by
the abovenamed first and fifth respondents (BXI and Mr Xulu), for
leave to appeal against my judgment
and orders of 30 January 2020.
The parties continue to be represented by the same counsel, save that
Mr Bridgman appeared for BXI
and Mr Xulu without the assistance of Ms
Smart.
[2]
Mr Xulu was joined as a
fifth respondent in terms of my judgment of 30 January 2020. A rule
nisi was issued calling on him to show
cause why he should not be
held jointly and severally liable with BXI for the repayment of the
amount of R20,242,472,90 specified
in para (e) of my order. Para (l)
of my order provided that if Mr Xulu opposed the rule nisi, the court
would on 12 March 2020
determine a timetable for the further conduct
of the claim against him.
[3]
Mr Xulu opposed the rule
nisi. There were other developments. Shortly before the hearing on 12
March 2020, Ms Ndudane, to whom reference
is made in the main
judgment, applied for leave to intervene in the main proceedings with
a view to seeking a reconsideration and
setting aside of my judgment.
Mr Xulu’s affidavit in opposition to the rule nisi foreshadowed
an application for my recusal.
As at 12 March 2020 BXI had not
delivered an application for leave to appeal, its legal
representatives apparently being under
the misapprehension that time
would not run until the rule nisi was determined.
[4]
As a result of these
developments, I made an order by agreement regulating the further
conduct of the application for leave to appeal,
the intervention, the
foreshadowed recusal application and the rule nisi. At that stage
there was, I believe, a general understanding
that, subject to the
outcome of the recusal application, I would deal with all the
outstanding matters.
[5]
Thereafter former Minister
Zokwana delivered an application for the rescission of my judgment.
BXI and Mr Xulu did likewise. It
appears that the applications by Ms
Ndudane for reconsideration, and the applications by former Minister
Zokwana, BXI and Mr Xulu
for rescission, were based primarily on an
allegation that the applicants, more particularly Mr Mlengana, had
knowingly caused
false evidence to be placed before me and had
knowingly suppressed relevant evidence. BXI and Mr Xulu also
delivered a lengthy
application for my recusal.
[6]
Mr Xulu’s affidavit
in opposition to the rule nisi, and his affidavit in support of the
recusal application, contained a strident
attack on my competence,
impartiality and integrity. In the circumstances, I took the view
that I should not deal with the outstanding
matters unless I was
technically seized with them or unless they were formally allocated
to me for hearing by the Judge President.
After obtaining the
parties’ views, I reached the conclusion that the only
outstanding matter with which I was technically
seized was the
application for leave to appeal. While considerations of convenience
might have suggested that I should hear the
other outstanding
matters, there was no legal impediment to another judge dealing with
them.
[7]
I notified the Judge
President accordingly. He decided that the outstanding matters (other
than the application for leave to appeal)
should be decided by a
judge from outside this division. Smith J, from the Eastern Cape
Division, was in due course seconded. I
was told, at the hearing of
the present application, that by agreement the rule nisi against Mr
Xulu stood over for later determination,
on the basis that Smith J
would first determine the intervention and rescission applications.
[8]
Although BXI and Mr Xulu,
pursuant to my order of 12 March 2020, delivered an application for
leave to appeal, their application
was made conditional on the
failure of the intervention and rescission applications. On this
basis, and for the time being, the
application for leave to appeal
was held in abeyance. Smith J delivered judgment on 1 September 2020.
He dismissed the intervention
and rescission applications with costs,
including the costs of three counsel.
[9]
After the matter was
argued before Smith J but before he delivered judgment, the
applicants in the main case requested that the
present application
for leave to appeal be heard in early September, Smith J having
intimated that he would endeavour to deliver
judgment by the end of
August. The applicants anticipated that the losing party or parties
in the proceedings before Smith J might
seek leave to appeal his
judgment. They considered that if leave to appeal were granted by
both judges, it would be convenient
in due course for the same
appellate panel to consider both appeals, bearing in mind the
overlapping issues and that about the
first 2700 pages of the record
before Smith J comprised the papers that were before me when I gave
judgment on 30 January 2020.
There would be an undue delay in
bringing matters to finality if the conditional application for leave
to appeal in the present
case were only argued once all appellate
processes in the matters before Smith J were exhausted.
[10]
In respect of the present
application for leave to appeal, BXI and Mr Xulu’s attorneys
are Millar & Reardon Attorneys
of Durban (‘MRA’),
with Mr Bridgman as counsel. As to the recusal application, my
understanding was that it had been
rendered moot by the allocation of
the outstanding matters to another judge. However, and since there
seemed to be some uncertainty
on that score, I sought clarity from
BXI and Mr Xulu’s legal representatives. On 3 August 2020 MRA
notified my registrar
in writing that their clients did not seek my
recusal in the application for leave to appeal. On 21 August 2020 Mr
Bridgman submitted
heads of argument in support of his clients’
application for leave.
[11]
It was thus much to my
surprise that, just a few minutes before we entered court on 3
September 2020, my registrar received a letter
from Mr Xulu stating
that ‘following extensive consultation’, he and BXI
submitted that 'the matter of recusal is paramount
and must be
decided before all other issues'. He stated that he had prepared a
supplementary affidavit in the recusal application,
which he would
hand up. He sought leave to address me in court before the
commencement of the application for leave to appeal.
[12]
When the matter was
called, I placed on record that my registrar had received this
letter. I asked Mr Bridgman whether he was instructed
to argue the
recusal application. He said no. I asked him whether Mr Xulu had a
right of appearance in the High Court. He took
instructions and
answered in the negative. I asked him to take instructions on
whether, in connection with my recusal, Mr Xulu
was relying on any
new or recent facts, ie matters not ventilated in his earlier
affidavits. He took instructions, and was given
the supplementary
affidavit which Mr Xulu had prepared. Since Mr Bridgman had not read
it, I invited him to hand it to me instead.
A cursory perusal
satisfied me that the supplementary affidavit contained nothing new.
[13]
I then addressed Mr Xulu.
I told him that my judgment of 30 January 2020 had granted no
substantive relief against him. I had merely
ordered that he be
joined. The rule nisi still had to be determined. I was thus of the
view that there was no appealable order
against him in his personal
capacity. In relation to BXI, he was not a legal practitioner with a
right of appearance in the High
Court. In terms of binding authority,
such a person could not, save in exceptional circumstances, speak for
a company in the High
Court. (See
Manong
& Associates (Pty) Ltd v Minister of Public Works & another
2010(2) SA 167
(SCA) paras 3-16.
)
[14]
Mr Xulu did not seek to
persuade me that in his personal capacity I had granted any final and
appealable relief against him. He
wished to address me on the
substantive aspect of recusal. In relation to the application for
leave to appeal, this was relevant
only to BXI, not to him
personally.
[15]
Mr Xulu said that he could
not afford to engage counsel to deal with the recusal application. I
pointed out that Mr Bridgman was
already on brief to appear before me
that very day and that he could have been briefed to deal with the
recusal application. Mr
Xulu’s answer suggested that Mr
Bridgman and other members of the Cape Bar were or might be unwilling
to argue the recusal
application because they had to appear before me
from time to time. I told Mr Xulu that Mr Bridgman was an experienced
counsel
who would not shrink from arguing a recusal application if it
could properly be done. Mr Bridgman would know that no judge would
harbour ill-feeling towards an advocate discharging his or her duty.
I asked Mr Bridgman whether I was mistaken. He confirmed that
I was
not.
[16]
I ruled that I would not
hear Mr Xulu further in support of the recusal application. My
reasons were briefly this. BXI and Mr Xulu’s
attorneys had
unequivocally stated on 3 August 2020 that BXI and Mr Xulu did not
seek my recusal from the application for leave
to appeal. There had
been no change of circumstances since then. Counsel on both sides had
come to court ready to argue the application
for leave to appeal.
Because of MRA’s letter of 3 August 2020, I had not concerned
myself with the recusal papers, which
included opposing and replying
affidavits which I had not read (the opposing papers were not even in
the court file). If BXI and
Mr Xulu were allowed to resurrect the
recusal application, it would thus have entailed a postponement.
[17]
In addition, there was no
motivated application for a departure from the general rule that a
representative without the right of
appearance in the High Court may
not appear on behalf of a company (cf
Manong
para 14). In my view,
the observance of the general rule is of particular importance in
matters of recusal, since there is a distinct
danger that persons
untrained in the professional and ethical standards of High Court
litigation could misuse the occasion to vilify
judges. In that
regard, and with reference to Mr Xulu’s lengthy affidavit in
support of the earlier recusal application,
I wish to say no more
than that I would be surprised if any member of the bar would deign
to associate himself or herself with
many of the allegations
contained therein or with the disrespectful language in which they
are couched. The same is true of Mr
Xulu’s affidavit opposing
the rule nisi to the extent that such affidavit foreshadowed recusal.
(I must add that there is
no indication that Mr Bridgman or Ms Smart
was involved in settling the offending material.)
[18]
I turn now to the
application for leave to appeal. Given the attacks which Mr Xulu has
made upon me, I would welcome the opportunity
for an appellate court
to assess the matter on appeal. However my personal preference is
irrelevant. The question is whether an
appeal would have reasonable
prospects of success.
[19]
The application for leave
to appeal raises the following grounds:
(a) that I erred in finding the
SLA invalid and in reviewing it and setting aside;
(b) that I should not have
accepted Mr Mlengana’s version that his signature on the SLA
had been fraudulently obtained, given
that such version was raised
for the first time in reply, that it ran contrary to objective facts,
and that it was contrary to
Ms Ndudane’s version;
(c) that I erred in declaring the
settlement agreement to be invalid and in reviewing it and setting
aside; and that I should not
have rejected Ms Ndudane’s version
that she was duly authorised;
(d) that in consequence of the
foregoing, I erred in rescinding Steyn J’s order;
(e) that I erred in ordering BXI
to repay R20,242,479,90 by 30 April 2020, in that I failed to
exercise my discretion, in terms
of s 172 of the Constitution, by not
instead ordering that BXI’s bills of costs be taxed in order to
enable the court to
make a just and equitable order.
[20]
In argument, however, Mr
Bridgman acknowledged that the SLA had correctly been found to be
invalid for non-compliance with proper
procurement procedures. He did
not accept that the SLA was invalid on the further ground of Mr
Mlengana’s supposedly unwitting
signature of the document, but
he relied on this factor (the second ground of appeal) only insofar
as it bore on just and equitable
relief. He persisted with the
argument that I should not have set aside the SLA as part of the just
and equitable relief, even
though I had correctly declared it to be
invalid.
[21]
Mr Bridgman further
conceded that, on the evidence which was placed before me, I
correctly found that Ms Ndudane was not authorised
to sign the
settlement agreement and that the settlement agreement was for this
reason invalid. (He intimated that evidence adduced
in the
proceedings before Smith J might have led to a different outcome.) I
may add here that, subsequent to my judgment in the
main case, the
Supreme Court of Appeal in
Valor
IT v Premier, Northwest Province & others
[2020]
ZASCA 62
;
[2020] 3 All SA 379
(SCA) held that a settlement agreement,
which purported to legitimise a contract which was unlawful because
of non-compliance with
public procurement prescripts, was unlawful
and should not have been made an order of court, and that the order
in question had
thus rightly been rescinded.
[22]
He further acknowledged
that I had not erred in finding that Steyn J’s order should be
rescinded on the ground of Ms Ndudane’s
lack of authority. He
conceded, furthermore, that I had not erred in finding that the
settlement agreement could in any event not
have been made an order
of court because it did not settle pending litigation, though he
submitted that this was not a ground on
which the DAFF could have the
Steyn J order rescinded; it was, he argued, an appeal point.
[23]
Finally, Mr Bridgman
accepted that the warrants of execution were invalid. On that point
he was, in his colourful expression, ‘dead
in the water’.
Indeed, the application for leave to appeal does not attack my
finding that the warrants were invalid. This
is not only because
Steyn J’s order fell to be rescinded; the warrants were in any
event invalid because of wholescale non-compliance
with the State
Liability Act.
[24]
As to Mr Mlengana’s
signature on the SLA, I explained my reasoning in paras 16-20 of the
judgment. I emphasise, again, that
BXI’s counsel did not,
during the hearing of the main case, ask for Mr Mlengana’s
cross-examination in terms of rule
6(5)(
g
).
[25]
Regarding the complaint
that Mr Mlengana’s version of a fraud was only alleged in
reply, it is necessary to bear in mind the
circumstances in which the
application was launched. The background is set out in the main
judgment. The proceedings were launched
on an urgent basis on 5
August 2019 in order to halt the execution of the warrants. This was
the urgent Part A relief. Mr Mlengana’s
founding affidavit was
devoted almost exclusively to the process of execution. Very little
was said about the Part B relief. Para
5.1 of Part B called upon BXI
to make discovery of the original SLA ‘purportedly’
signed by Mr Mlengana, and para 7
sought the reviewing and setting
aside of the SLA ‘purportedly’ signed by Mr Mlengana.
When the SLA was referred to
in passing in para 18 of the founding
affidavit, Mr Mlengana described it as the agreement which he
‘purportedly’ signed.
[26]
BXI delivered preliminary
opposing papers on 8 August 2019, and the DAFF replied later that
day. In his opposing affidavit, Mr Xulu
said that he did not
understand why Mlengana repeatedly referred to his signature on the
SLA as ‘purported’. In his
preliminary replying
affidavit, Mr Mlengana explained, in para 160, why he denied having
signed the SLA and how it might have come
about that he unwittingly
signed what turned out to be the last page of the purported contract.
[27]
The matter served before
me that afternoon. It was postponed to 19 August to enable further
information and affidavits to be filed
relating to the execution of
the warrants and the disbursement of attached monies. Ms Ndudane
filed her affidavit on 14 August
to provide clarity on matters
pertaining to her. On 19 August the matter stood down again, and on
21 August I made an order by
agreement having the effect that the
Part B relief would be heard on 29 November 2019. This included the
SLA review relief. Para
6 of the order permitted the DAFF to file
further affidavits by 9 October 2019 in relation to Part B2 of the
notice of motion (this
encompassed the review of the SLA), and paras
7 and 8 specified a timetable for supplementary answering and
replying papers.
[28]
On 14 October 2019 DAFF
delivered its supplementary papers, including an affidavit by Mr
Mlengana and an affidavit by Mr MI Abader,
the second of these
affidavits being the second applicant’s founding affidavit in
support of the relief claimed by the DAFF.
In his affidavit, Mr
Mlengana stated that he had only learnt of the SLA after returning to
office from suspension on 23 April 2018
(paras 12 and 75). Mr
Abader’s affidavit repeated the allegation that Mr Mlengana had
not (knowingly) signed the SLA, and
Mr Abader alleged that the SLA
had been fraudulently concluded (paras 48 and 59.9).
[29]
BXI delivered its
supplementary answering papers on 11 November 2019. Former Minister
Zokwana’s affidavit formed part of those
papers. As I have
said, Mr Zokwana did not deal with the signing of the SLA. With
reference to Mr Abader’s discussion of
the Auditor-General’s
reports of 2016/2017, Mr Xulu alleged, in para 44 of his affidavit,
that despite the alleged irregularities,
the DAFF had apparently been
satisfied with the SLA, because no attempt was made by the DAFF to
set it aside after the Auditor-General’s
report was published.
[30]
The DAFF’s
supplementary replying papers, including an affidavit by Mr Mlengana,
were served on 18 November 2019. It was at
this point, in response to
para 44 of Mr Xulu’s supplementary answering affidavit, that Mr
Mlengana stated that he had not
been aware of the SLA before he was
suspended and that when he learnt of it, after returning from
suspension, he had reported the
alleged fraud to the Hawks (paras
31-32; see also paras 37 and 40-41). In making these allegations, Mr
Mlengana was replying to
Mr Xulu’s assertion that the DAFF
seemingly been satisfied with the SLA.
[31]
BXI filed further
responding affidavits on 29 November. Mr Xulu said in his affidavit
that he could not allow Mr Mlengana’s
allegations of fraud to
go unchallenged. Mr Xulu alleged that if there was a fraud, BXI was
not a party to it. The applicants,
by way of a supplementary replying
affidavit from their attorney, assured the court and BXI that the
applicants were not alleging
fraud on the part of BXI.
[32]
Given that the application
was launched in urgent circumstances and was primarily concerned at
that stage with halting the process
of execution, it cannot be held
against the DAFF that it did not deal more fully in its founding
papers with the circumstances
under which the SLA came to bear Mr
Mlengana’s signature. Mr Mlengana subsequently stated that the
founding papers had been
prepared under great time constraints and
without the benefit of full consultation. Within three days of
launching the application,
and in response to BXI’s preliminary
opposing papers, the DAFF filed replying papers in which Mr Mlengana
set out the main
elements of his version. Ms Ndudane’s
affidavit followed six days later, and she could thus deal with Mr
Mlengana’s
allegations. The DAFF as well as the second
applicant were, furthermore, entitled to supplement their case on
review, and did so
on 14 October 2019. BXI had ample time to respond,
which it did on 11 November 2019. Since former Minister Zokwana’s
affidavit
was filed as part of the latter papers, he was in a
position to deal with all of Mr Mlengana’s allegations relating
to the
signing of the SLA.
[33]
In these circumstances, to
which I may add the absence of an application to strike out, I do not
think there is any reasonable prospect
of another court finding that
I should have ignored the allegations made by Mr Mlengana about the
signing of the SLA in his replying
affidavit of 8 August 2019 and in
the supplementary papers of 14 October 2019. Even Mr Mlengana’s
supplementary replying
affidavit of 18 November 2019 was one to which
Mr Xulu delivered a responding affidavit. Furthermore, the allegation
of deceit
in Mr Mlengana’s affidavit of 18 November was simply
a logical deduction from what he had already said in his affidavit of
8 August 2019. The important point is not whether a fraud was
committed and if so by whom; the point is that, on Mr Mlengana’s
version, he did not knowingly sign the SLA.
[34]
Mr Bridgman submitted that
although I mentioned six factors (in para 17) which lent support to
Mr Mlengana’s denial of witting
signature of the SLA, I had
omitted to consider factors which pointed the other way. Among these
were the following:
(a) Mr Xulu alleged in his papers
that the DAFF’s non-payment of his firm’s fees was a
personal vendetta against him
by Mr Mlengana because of BXI’s
work with law enforcement agencies to combat undue influence,
maladministration, criminality
and corruption in the DAFF. This was
consistent with views expressed by the National Treasury and the PSC.
(In other words, in
view of the vendetta, Mr Mlengana had a motive to
lie about his signing of the SLA.)
(b) Mr Mlengana’s version –
that he became aware of the SLA in late July 2018 and then reported
it to the Hawks as a
fraud – was inconsistent with other
evidence:
(i) He made no mention of
unlawfulness or fraud when attempting to terminate BXI’s
services in his letter of 15 August 2018
or when effectively
reappointing BXI to work on the Bengis matter on 20 August 2018.
(ii) According to the affidavit
of National Treasury’s Acting Accountant General, Ms
Mxunyelwa
,
Mr Mlengana had himself said that BXI was appointed ‘by a
deviation process’.
(iii) Mr Mlengana’s excuse
that he should not have given in to pressure from National Treasury
was ‘lame’, and
should have been rejected.
(iv) Mr Mlengana had repeatedly
promised to pay R20 million to BXI, which was inconsistent with his
version that he doubted the
lawfulness of BXI’s appointment.
[35]
All the above matters were
mentioned, albeit in other contexts, in the course of my judgment. I
did not overlook them. I do not
recall the argument being made that
the alleged ‘vendetta’ was a circumstance showing that Mr
Mlengana was lying about
his signing of the SLA. I do not think that
the argument has force. The DAFF’s primary attack on the SLA
was the absence
of proper procurement procedures. Mr Mlengana did not
need to deny his signature in order to pursue the alleged vendetta.
[36]
In regard to the
termination of BXI’s services on 15 August 2018, Mr Mlengana
did not refer to the SLA at all. The position
was that BXI was
de
facto
rendering
services, allegedly on the strength of mandates from former Minister
Zokwana. Mr Mlengana wished to terminate BXI’s
role as a
service provider. As my judgment indicates, Mr Mlengana stated that
he was under pressure from former Minister Zokwana
to keep BXI on
board, hence the revival of BXI’s role in relation to the
Bengis matter. This did not involve any recognition
of the SLA or its
validity. Again, Mr Mlengana made no mention of the SLA in his letter
of 20 August 2018.
[37]
According to Mr Mlengana,
the pressure from former Minister Zokwana permeated his interactions
with National Treasury. The passage
from Ms
Mxunyelwa’s
affidavit upon
which Mr Bridgman particularly relied (paras 30-31 at record 255)
does not, on my reading of it, constitute an allegation
that Mr
Mlengana said that BXI had validly been appointed through a deviation
process. There was talk of regularising BXI’s
de
facto
appointment as a
deviation by approaching National Treasury for condonation of
possible irregular expenditure. This was in the context
of providing
a legal foundation for a settlement.
[38]
As to the agreement to pay
BXI R20 million, my judgment fully explained the circumstances in
which this came about. It was not a
promise made with reference to
the SLA.
[39]
I thus do not believe that
the circumstances to which Mr Bridgman pointed would be regarded by
an appellate court as justifying
a rejection of Mr Mlengana’s
allegation that he did not wittingly sign the SLA. Those
circumstances may have provided material
for cross-examination if
leave had been sought to have him give oral evidence, but this did
not happen. Ultimately, I had the direct
evidence of a person with
knowledge (Mr Mlengana), who says he did not wittingly sign the SLA,
and no countervailing evidence from
the two other persons who might
have had personal knowledge to the contrary (former Minister Zokwana
and Ms Memani).
[40]
In any event, I do not
consider that a finding that Mr Mlengana’s version should have
been rejected would be regarded by as
an appellate court as affecting
the just and equitable relief which I granted (and this is the only
respect in which Mr Bridgman
invoked this factual issue). As I stated
in paras 117-119 judgment, the factors on which I principally relied
not to defer repayment
indefinitely pending finalisation of the
verification process were:
(a) that BXI’s problems
were not limited to non-compliance with the State Liability Act; that
I would also be rescinding Steyn
J’s order and setting aside
the settlement agreement and the SLA; and that there was thus little
prospect of BXI obtaining
an executable judgment in the near future;
(b) that BXI was the author of
its own misfortune, by disbursing the greater part of the attached
monies after it was notified that
the execution was invalid because
of non-compliance with the State Liability Act (Mr Bridgman did not
argue that this finding was
not justified).
[41]
I counter-balanced the
above considerations with those mentioned in paras 120-122. The
primary reason for BXI having to repay the
money was not that the SLA
was invalid or that BXI had not performed work of value for the DAFF
(the latter being something on
which I was not in a position to make
a determination); the primary reason was that BXI had obtained the
DAFF’s money by
an unlawful process of execution based on a
judgment which fell to be rescinded.
[42]
What I have just said also
has an important bearing on delay as a factor relevant to just and
equitable relief. In my main judgment
I explained why I did not
regard the DAFF’s delay in seeking the review of the SLA as
unreasonable and why in any event I
would condone the delay. However,
my primary reason for ordering repayment of the money (which is the
only thing BXI still wishes
to challenge on appeal) was not that the
SLA was invalid; my reasons had to do with the unauthorized
settlement agreement (12 April
2019), the rescission of the Steyn J
order (made on 6 June 2019), and particularly the wholly unlawful
process of execution (19
June 2019 and following). There was no undue
delay, in these respects, in the launching of the review application.
[43]
Mr Bridgman did not
contend that, if a repayment order was warranted, the date I
determined (30 April 2020) was unreasonably short.
DAFF was able to
complete its process of verification and submit its report to BXI
before that date. (I was told that the DAFF
did not tender to pay BXI
anything more, and has in fact issued summons to recover money paid
to BXI prior to execution.) In any
event, because of the application
for leave to appeal, which suspended my order, BXI has
de
facto
had an
additional four months since 30 April 2020.
[44]
A final consideration is
the practical difficulty in formulating a just and equitable remedy
such as BXI had in mind. In essence,
BXI wanted me to order that its
bills of costs be taxed. But by whom? On what scale? How would the
taxing authority (whoever it
was) determine disputes about whether
BXI had valid mandates to perform particular work? The SLA, even if
it was not set aside,
did not in terms refer to any matters other
than the restitution of money to the South African government in the
Bengis case, whereas
BXI claims the existence of mandates from the
Minister to perform work on a number of other cases. The validity of
those mandates
was not an issue before me. I was simply not in a
position to rule that BXI was entitled to the taxation of all the
bills prepared
by its costs consultant.
[45]
I have
thus come to the conclusion that the proposed appeal does not enjoy
reasonable prospects of success. I have reached this
conclusion
without going into the question whether, in the case of a legality
review, the determination by a trial court of ‘just
and
equitable relief’ in terms of s 172(1)(
b
)
of the Constitution involves a discretion in the true (narrow) sense
or a broad value judgment. The same question would arise,
in PAJA
reviews, in the determination of just and equitable relief as
contemplated in s 8(1) of PAJA. For the distinction
between
these two kinds of discretion, see
Media
Workers Association
of
South Africa and Others v Press Corporation of South Africa Limited
1992
(4) SA 791
(A)
800E-H and
Trencon
Construction (Pty) Limited v Industrial Development Corporation of
South Africa Limited & another
[2015]
ZACC 22
;
2015 (5) SA 245
(CC) paras 82-92.
[46]
The
Trencon
judgment may well
point to a conclusion that the determination of just and equitable
relief involves the exercise of a discretion
in the true or narrow
sense. If that is so, the absence of reasonable prospects of success
in this case would be fortified because
of the constraints on the
appellate court in interfering with the way I exercised my
discretion.
[47]
The applicants in the main
case asked that I dismiss the application for leave with the costs of
three counsel. I declined to make
such an order in the main case and
see no reason to do so now.
[48]
I make the following
order:
The
application for leave to appeal is refused with costs, including the
costs of two counsel, such costs to be paid by the first
and fifth
respondents jointly and severally.
____________________
O L
Rogers
Judge
of the High Court
Western
Cape Division
APPEARANCES
For
Applicants
N
Bawa SC (with her B Joseph SC and J Williams)
Instructed
by
State
Attorney
4
th
Floor, 22 Long street
Cape
Town
For
First & Fifth Respondents
M
J M Bridgman
Instructed
by
Millar
Reardon Attorneys, Durban
c/o
B Xulu & Partners Inc
9
th
Floor, 113 Loop Street
Cape
Town