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[2016] ZAGPJHC 390
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Mogale City Municipality and Others v Fidelity Security Services (32719/2015) [2016] ZAGPJHC 390; 2017 (4) SA 516 (GJ) (4 August 2016)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO
:
32719/2015
(1)
REPORTABLE: YES
(2)
OF INTEREST TO OTHER JUDGES: YES
In the
matter between -
MOGALE
CITY MUNICIPALITY
First
Appellant
SIDAS
GUARDING (PTY) LTD
Second Appellant
DAN
MASHITISO
Third
Appellant
RENELL
LIEBENBERG
Fourth
Appellant
and
FIDELITY
SECURITY
SERVICES
Respondent
REASONS
FOR JUDGMENT
Urgent
appeal ito section 18 of the Superior Court Act 10 of 2013 against an
order putting into operation an order requiring Mogale
City to
reinstate a security contract with Fidelity, pending a competitive
bidding process.
Appeal
dismissed, but for different reasons.
Unorthodox
sequence of events precipitating the chief controversy – after
the order requiring the reinstatement of Fidelity
as the security
provider, Mogale City indicated it would appeal the order. Fidelity
then brought an application in terms of section
18 to put the order
into operation and lodged it before a notice of intention to appeal
had been lodged. However before the
hearing of the application,
the application for leave to appeal had been lodged. Mogale City
argued before the court hearing that
the application that it was
premature and irregular because it had been lodged before the leave
to appeal application had been
lodged. That court held that the
application was not irregular, interpreting section 18 to mean that
such an application was, having
regard to constitutional
considerations, not bound by any timelines when to be instituted. The
order putting the main order into
operation was then granted.
On
appeal – the correctness of that finding was challenged and
also whether irreparable harm was indeed present if the execution
of
the order had to wait upon the conclusion of the appeal process.
Held:
That the lodging of the section 18 application to put the order into
operation was premature and irregular, however when,
after that
irregular step had been taken, Moagale City did not seek to have it
set aside as contemplated by rule 30, but itself
took a further step
in lodging its application for leave to appeal, the tion was
regularised and Mogale City was thereby estopped
from complaining.
Held
further: That although the prescripts for seeking an order putting
into operation an order pending appeal were contained
in a
section of a statute and not a rule of court, the purpose and scope
of section 18 was wholly procedural and susceptible
to being
cured by further procedural steps.
Held
further: That in any event it was odious to court process that form
could triumph over substance and because to hold otherwise
in these
circumstances could serve only a dilatory aim, and be wasteful of
costs and court time, a court in exercising its inherent
power to
protect the court process would condone the irregularity which caused
no prejudice to any other party.
Held
further; That the order reinstating Fidelity, if not given effect to
at once, would be utterly academic after an appeal process
had been
exhausted as the nature of the relief was to render a service during
a period of time that would, on the probabilities,
elapse before the
completion of an appeal – on the facts, the notions of a
suitable alternative remedy were fanciful –
irreparable harm
was indeed present – the threshold of irreparability was not
insolvency of a business
Held
further: A submission by Fidelity to make punitive costs order
against Mogale City owing to its protracted rear-guard resistance
in
long running litigation with Fidelity over irregular tender
processes, this case being the fifth judgment of a court in the
ongoing saga, was refused owing to the court not being
possessed of the optimal information to draw a pejorative inference
against Mogale City; moreover, an urgent appeal proceeding was
not the ideal, and perhaps not the appropriate proceeding,
for such
an enquiry. However, there were sufficient prima facie indications
that the litigation may have gotten out of hand and
that public funds
might not have been managed appropriately so that it was appropriate
to refer the matter to the MEC for Local
Government and to the
Minister of Local Government for investigation of the protracted
litigation, and that they be requested to
report to this court in 12
months’ time on the outcome.
SUTHERLAND
J:
Introduction
[1]
An appeal pursuant to section 18(4) of the Superior Courts Act 10 of
2013 (SCact)
[1]
was heard by us
on 26 July 2016. It was, axiomatically, convened urgently. At the
conclusion of the hearing the following order
was made:
‘
(1)
The appeal is dismissed with costs including the costs of two
counsel.
(2)
The wasted costs occasioned by the postponement of the hearing from
21
July to 26 July shall be borne by the first, third and fourth
appellants
jointly and
severally, the one paying, the others to be absolved.’
[2]
[2]
These are our reasons, which were filed on 4 August 2016.
[3]
The second appellant (Sidas) played no active role in the matter. It
was cited by reason of its ostensible interest in an agreement
concluded between it and the first appellant (Mogale City) to which
reference shall made in due course. The third appellant is
the
municipal manager of Mogale City, and where necessary, shall be
referred to as such in this judgment. The fourth appellant
is an
employee of Mogale City, whose role was not expressly addressed in
the debate. The respondent shall be referred to as Fidelity.
[4]
The principal adversaries are Mogale City and Fidelity. Litigation
has raged between them since 2012. The dispute is essentially
about
whether Mogale City has improperly awarded tenders for security
services and improperly not awarded a tender to Fidelity.
Fidelity
believes itself to have been unlawfully wronged by the actions of
Mogale City, whose chief agent has been the municipal
manager. Thus
far, judgments handed down on four occasions have vindicated that
stance.
[3]
Because the history
of this saga has already been captured in those earlier judgments,
including one in the SCA, and also in a
fifth judgment which is the
subject of the appeal in terms of section 18(4), it is inappropriate
to regurgitate a further account.
[5]
For the purposes of this appeal it is sufficient to record that the
proximate controversy stems from the fourth judgment, in
which an
order was made by Du Toit AJ on 27 May 2016. The portion of that
order directly relevant is in paragraph 51.4:
“
Pending
the lawful conclusion of a new contract pursuant to a competitive
bidding process, [Mogale City] is directed to reinstate
the previous
month –to –month contract with [Fidelity] on the same
terms.”
[6]
Subsequently, on 9 June 2016, a section 18(1) application to execute,
or put into effect, this order was instituted by Fidelity.
Kathree-Setiloane J,
a quo
, granted that order on 8 July 2016.
The order reads:
“
Paragraphs
[51.2, 51.3 and 51.4] of the order of Du Toit AJ under case number
32719/15 is declared to be effective and enforceable
pending the
application for leave to appeal, and, if granted, the appeal.”
An
order of costs on the attorney and client was also ordered against
Mogale City.
[7]
In response to that order, Mogale City launched an appeal as
contemplated in section 18(4) of the SCact.
[8]
In the appeal hearing before us on 26 July 2016, argument was pressed
on two discrete issues, and it is upon these two issues
that the
appeal turns.
8.1.
First, whether or not the application to execute the order of Du Toit
AJ ought to have
been heard at all, owing to the fact that when
the application to execute was lodged on 9 June, Mogale City had
not yet lodged
an application for leave to appeal, doing so only on
20 June.
8.2.
Second, whether the finding of fact by Kathree-Setiloane J that
Fidelity would suffer irreparable
harm if the order to execute was
not made is incorrect. (Although other aspects of the findings were
earlier challenged in written
heads of argument they were not pursued
in argument, and correctly so.)
The
challenge to the propriety of the section 18(1) application per se
[9]
The controversy which arises is a question of law, framed by the
following common cause facts, the chronology of which is important:
9.1.
27 May 2016: Judgment by Du Toit AJ was handed down.
9.2.
31 May 2016: Letters were exchanged between Mogale City and Fidelity
in which Mogale City states
that it will not comply with the court
order and will apply for leave to appeal.
9.3.
31 May 2016: Mogale City, unbeknown at the time to Fidelity,
contracts with Sidas to perform
security services (The subject matter
of the court order) for six months.
9.4.
9 June 2016: Fidelity lodges a section 18(1) application.
9.5.
20 June 2016: Mogale City lodges application for leave to appeal
9.6.
21 June 2016: the section 18(1) application to execute is heard.
[10]
The court
a quo
addressed several dimensions of the constitutional guarantees of
access to the courts and the power of the court to effectively
regulate its own process and reasoned that an interpretation could be
placed upon section 18 which spares a successful party from
linking
the lodgement of an application to execute pending an application for
leave to appeal to an actual lodgement of such application
for leave
to appeal, and because of an absence of any express or implied
injunction in the text of the section as to when such
application to
execute can or must be lodged, a lodgement of an application to
execute, in anticipation of an actual application
for leave to
appeal, is action which is consistent with the procedure provided for
in the section, purposively interpreted. The
effect of such an
interpretation is that a successful party could by pre-emptive
action, preclude an order being suspended by a
subsequent application
for leave to appeal.
[11]
We are of the view that the facts of this case are such that it is
unnecessary to conclude that such pre-emptive action is
necessarily
contemplated by section 18, properly interpreted, and that the result
found by the court
a quo,
i.e. that it was proper to entertain the application, in the
circumstances, can be reached on a narrower legal basis.
[12]
On the facts of this case, the application for leave to appeal was
lodged before the hearing. Thus, at the time of the hearing,
all the
jurisdictional facts required by section 18 were indeed present. To
illustrate the significance of this circumstance it
may be imagined
that had no application for leave to appeal ever having been
lodged
by the
time of the hearing: in such circumstances, it is difficult to
suppose that the application to execute could have had
a
factual
basis
,
because the defeated party would at that stage still be obliged to
comply with the order, it having not been suspended, and immediately
the defeated party refused to comply, it would be in default,
exposing it to the risk of a contempt application.
[4]
In short, there would be no suspension of the order for an
application to execute to reverse.
[13]
By contrast, the facts in this case also show that at the time of the
hearing there had indeed been both an application for
leave to appeal
and an application to execute lodged. All that was necessary in order
to entertain the application was present,
albeit that the application
to execute was the earlier event of the two. Helpfully, it is
incontrovertible that the substance of
an application for leave to
appeal, i.e. setting out why an appeal would be appropriate, could
not trespass into the domain of
the considerations relevant to an
application to execute pending such appeal because the substance of
each application is distinct;
hence no question can arise about an
application to execute ‘responding’ in the slightest way
to the substance of an
application for leave to appeal.
[14]
The critical argument levelled by Mogale City at the judgment of the
court
a quo
is that
notwithstanding that at the time of the hearing in terms section
18(1), an application for leave to appeal had been lodged,
section 18
requires an
actual application
for leave to appeal to have been
lodged
before there can be an application lodged to uplift the suspension of
the order. There is, in our view, considerable force in this
argument. The architecture of section 18 provides for three
realms. The first is that when an order of court is made,
there
is at once an obligation by the defeated party to comply. The second
is that the obligation to comply is suspended, a circumstance
created
by the action of lodging an application for leave to appeal. The
third realm is the reversal of the suspension on the grounds
provided
for in section 18. Therefore, inescapably, there can be no upliftment
of a suspension before a state of suspension exists.
On this
view, the preferable interpretation of section 18 would be to
recognise that an application to execute in terms of section
18(1) is
a defence mechanism that a successful party may put up to resist the
harm wrought by a suspension of the obligation to
comply.
Accordingly, there is no occasion to raise a shield unless and until
a sword is drawn.
[15]
Therefore, it must follow that when Fidelity lodged an application to
execute before an application for leave to appeal had
been lodged, in
our view, Fidelity took an irregular step. What could Mogale City
have done about this irregularity? It could have
invoked Rule 30 of
the Uniform Rules
[5]
in terms of
which it could have applied to have the irregular step set aside. It
did not. Instead it embarked on two parallel courses
of action. On 17
June it responded with answering affidavit, which addressed the
premature lodgement and the merits of the application
to execute.
Also, it lodged the application for leave to appeal. In our view,
Mogale City took ‘further steps’ as contemplated
by Rule
30(2) (a) of the Uniform Rules of Court, having the effect of
‘advanc[ing] the proceedings one step nearer completion’
[6]
.
By taking such further steps Mogale City, in effect, forfeited
a right to complain about the premature lodging of the application
to
execute. The non-compliance with the section, of which Fidelity was
guilty, was, in effect, thereby purged.
[16]
An attempt was made to argue that the premature lodging of an
application to execute could not be the subject matter of Rule
30, on
the footing that there had to be what was, initially described as a
‘complete cause of action’ when the lodgement
occurred,
but which, as the argument became refined in the course of debate,
was contended to be the necessary presence of a jurisdictional
fact.
We disagree. The controversy is wholly to do with compliance with the
section. The section peremptorily prescribes
certain requirements.
Although section 18 is obviously not a mere rule of court, the
section is wholly procedural in character
and its purpose is to
facilitate rapid relief to parties in the given circumstances and has
been enacted to replace the procedure
formerly regulated by Rule 49
(11) of the Uniform Rules.
[7]
The irregularity, in our view, was wholly of form and not of
substance, and once the application for leave to appeal was lodged,
the irregularity was no longer susceptible to complaint. It is true
that such an example has not hitherto been recognised as an
irregularity contemplated by Rule 30. That novelty is no obstacle to
it being recognised now.
[17]
Part of the argument advanced by Mogale City was in effect to contend
that the application to execute was a nullity. If an
application for
leave to appeal had not been lodged, that point might have been
warranted examination, but, on these facts, the
need to decide that
point does not arise.
[18]
No prejudice to Mogale City exists. On the contrary, the application
to execute was launched only after a formal communication
by Mogale
City’s attorney to Fidelity’s attorney that it would not
comply with the order of Du Toit AJ in which it
was cheekily stated
‘it shall do so within the time prescribed by the Rules’,
a virtual admission of a dilatory objective.
What also occurred on 31
May 2016 is even more unsavoury. Mogale City clandestinely
contracted with Sidas for a six months
contract in flagrant defiance
of its obligations to comply with the order of Du Toit AJ, at that
moment still fully in force, and
then when revealing this occurrence
in its answering affidavit (dated 16 June) to the application to
execute, submitted that this
act of skulduggery be taken into account
in refusing the application to execute. [Record; p74, para 20.]
[19]
A mechanical application of the section, genuflecting to a rigidity
of the order of precedence of the jurisdictional preconditions
could
serve only a dilatory objective, an outcome wholly inconsistent with
the purpose of the section to afford urgent relief.
In our view,
independently of the regulation provided by Rule 30, the dismissal of
the application to execute would have been so
obviously wasteful and
the delay in Fidelity coming again later on fresh identical papers so
inimical to the aims of section 18,
that a court exercising its
inherent power to regulate its process effectively, ought to have
allowed the matter to proceed and
mero motu
condoned the irregularity.
[20]
In may also bear mention that the Courts’ patience with
dilatory litigious behaviour, and unconstructive tactical
manoeuvrings
is exhausted, and increasingly, it shall be expected of
legal practitioners to manage and conduct litigation with at least a
semblance
of awareness that it is irresponsible to engage in Fabian
skirmishes which consume the resources of opponents and of the legal
system. If counsel are to be thought of as officers of the court it
is incumbent of them that see that there are clear manifestations
that they are deserving of such an identity by promoting the
resolution of disputes through the process and not indulge in the
manipulation of the process to arrest progress.
[21]
Accordingly in our view, the court a quo ought to have heard the
matter, was correct in doing so, albeit that we reach that
conclusion
for different reasons.
Is
the finding that Fidelity would suffer irreparable harm if the order
was not executed incorrect?
[22]
The discernment of ‘irreparable harm’ by a court is a
factual finding. It was stated in
Incubeta Holdings (Pty) Ltd &
Another v Ellis & Another 2014(3) SA 189 (GJ)
at [24]:
‘
The
second leg of the s 18 test,[, [i.e., the presence or absence of
irreparable harm to either party] in my view, does introduce
a novel
dimension. On the South Cape test, No 4 (cited supra), an even-handed
balance is aimed for, best expressed as a balance
of convenience or
of hardship. In blunt terms, it is asked: who will be worse off if
the order is put into operation or is stayed.
But s 18(3) seems to
require a different approach. The proper meaning of that subsection
is that if the loser, who seeks leave
to appeal, will suffer
irreparable harm, the order must remain stayed, even if the stay will
cause the victor irreparable harm
too. In addition, if the loser will
not suffer irreparable harm, the victor must nevertheless show
irreparable harm to itself.
A hierarchy of entitlement has been
created, absent from the South Cape test. Two distinct findings of
fact must now be made, rather
than a weighing-up to discern a
'preponderance of equities'. The discretion is indeed absent, in the
sense articulated in South
Cape. What remains intriguing, however, is
the extent to which even a finding of fact as to irreparable harm is
a qualitative decision
admitting of some scope for reasonable people
to disagree about the presence of the so-called 'fact' of
'irreparability'.
[23]
Irreparability is a dimension of the exceptional circumstances
essential to justify the reversal of the default position as
regards
the immediate enforceability of the order. Among the possible range
of exceptional circumstances, it was further stated
in
Incubeta:
‘
[27]
Do these circumstances give rise to 'exceptionality' as contemplated?
In my view the predicament of being left with no relief,
regardless
of the outcome of an appeal, constitutes exceptional circumstances
which warrant a consideration of putting the order
into operation.
The forfeiture of substantive relief because of procedural delays,
even if not protracted
in
bad faith by a litigant, ought to be sufficient to cross the
threshold of 'exceptional circumstances”.
“
[28]
The plight
of the victor alone is probably
all that is required to pass muster. Nonetheless, I am not
unconscious of the undesirable outcome
that relief granted by the
court becomes a vacuous gesture. A court order ought not to be
lightly allowed to evaporate, a fate
which, seems to me, would tend
to undermine the role of courts in the ordering of social relations.’
[24]
The argument advanced on behalf of Mogale City was that denying the
enjoyment the relief granted to Fidelity could not
cause Fidelity
irreparable harm because:
24.1.
First, Fidelity had an alternative damages claim in delict for loss
of profits against Mogale, based on the corrupt
conduct of the
municipal manager, and others acting for Mogale.
24.2.
Second, having to wait however long to conclude such an action aimed
merely at obtaining money, and which would
be capable of institution
only after the appeal was decided, would not bankrupt Fidelity.
A
delictual action?
[25]
The very idea that, as a fact, any delictual claim exists, is hotly
disputed. The claim upon which Fidelity succeeded before
Du Toit AJ
was not in delict. Fidelity sought relief in terms of its rights to
fair administrative action from an organ of state,
i.e. Mogale City.
Fidelity brought a review application against Mogale City. The relief
sought was to set aside Mogale City’s
allegedly unlawful
contract with Sidas and to direct Mogale City to reinstate a contract
between them, on the same terms as that
previously in force, on an
interim basis, pending a lawful competitive bid process. The relief
granted was as prayed.
[26]
The contentions advanced on behalf of Mogale City concede, correctly,
that if the application to execute on the order of Du
Toit AJ was
refused, that relief can never at a later stage be enjoyed. (This
consequence is self -evident with an order
ad
factum ad praestandum
.) However,
notwithstanding that sacrifice, the forfeiture does not cause
irreparable harm to Fidelity because, in years to come,
once the
appeal is dismissed, Fidelity can sue for damages in delict.
[27]
In our view, the proposition is misconceived in principle. The
implication is that if the fruits of these proceedings are
sacrificed, Fidelity can institute fresh proceedings on another cause
of action and get some money at some time in the future. That
scenario does not address the irreparable harm of losing the efficacy
of the relief Fidelity has already obtained. Moreover, Fidelity
must
incur the usual risks of litigation in another action, including the
burden of proving fraud by Mogale and quantifying the
quantum of its
losses.
[28]
In any event, the prospects of such a delictual action being
available is itself highly speculative. Mogale City recognises
that
an action against an organ of state for damages owing to tender
irregularities is fraught with certain vulnerabilities. Proof
of
fraud and corruption are the fount of such a claim, not mere
negligent irregularities
. In Steenkamp N. O.
v Provincial Tender Board, Eastern Cape
2007 (3) SA 121
(CC) at [55
]
this proposition was made clear. Ever since the fate of the aggrieved
plaintiff in
Olitzki |Property Holdings
v State Tender Board and Another 2001(3) SA 1247 (SCA),
who sought such damages based on irregularities and was rebuffed by
the courts, litigants who seek recompense from state organs
for
unlawful treatment have trod warily. The only plaintiff to have
hitherto succeeded, insofar as the law reports represent a
record, is
that illustrated in
Minister of Finance v
Gore N.O. 2007(1) SA 111 (SCA).
The
restriction, on policy grounds, to holding organs of state liable in
damages only when officials were proven to have perpetrated
fraud or
other corrupt acts was reaffirmed in
Country
Cloud Trading CC v MEC, Department of Infrastructure
Development
2015 (1) SA 1
(CC) at [44] - [47].
[29]
It is no part of Fidelity’s case in the action concluded by the
judgment of Du Toit AJ that Mogale City acted corruptly.
Indeed, the
notion, nursed by Mogale, that corruption is evident and available to
add to Fidelity’s quiver of legal arrows,
stems not from any
allegation pleaded by Fidelity, but from condemnations by Vermeulen
AJ in one of the earlier matters remarking
upon the inconsistencies
between two affidavits deposed to by the municipal manager. The
notion of delictual claim available to
Fidelity is therefore fanciful
both on grounds of it very premises, and in relation to the facts of
the case.
The
norm of Irreparability and the risk of bankruptcy
[30]
As to the second point about there being no risk of bankruptcy, the
idea of irreparable harm can never mean the financial annihilation
of
a litigant. A well-heeled litigant may suffer irreparable harm,
in the sense contemplated by the section, even if it experiences
no
discomfort whatever. The core meaning to be attributed to the concept
of irreparable harm is the
irretrievable loss
of what the litigant is entitled to in terms of the court order
.
In this case, Fidelity is entitled to render security services
forthwith for reward as previously contracted until a certain event.
Moreover, it is no part of the process contemplated by section 18
that the court hearing such a matter second-guesses the propriety
of
the relief granted, because it might be thought there is another way
to prosecute a claim to advance a litigant’s interests.
What is
and remains at stake is the relief granted.
Criticism
of the conduct of the litigation
[31]
Fidelity has been critical of the resistance put up by Mogale City to
its claims. As alluded to earlier, this shall be the
sixth judgment
delivered in the litigation epic between Fidelity and Mogale City.
Fidelity is bold to say that it is weary of what
it perceives,
perhaps accurately, as reckless rear-guard litigation by Mogale City.
In particular, Fidelity points to the not inconsiderable
dismay that
all citizens of South Africa should have at the spectacle of an organ
of state losing six court cases in a row, all
funded by the taxpayer.
As a result Fidelity seeks penal costs and that individual
officials of Mogale City be held liable.
We are not unconscious of
these considerations. However, we have not been placed in a position
to determine, reliably, all the
relevant circumstances, especially
whether identifiable persons are in any way culpable of inappropriate
conduct. In particular,
bearing in mind that this is an urgent
appeal, convened hurriedly, and dealt with speedily, in our view this
is not an appropriate
forum to address these concerns.
[32]
What does seem appropriate, in the public interest, is that the
circumstances be drawn to the attention of the Minister of
Local
Government and the MEC for Local Government, Gauteng. Accordingly,
we shall direct the registrar to forward to those
officials copies of
the six judgments given in the course of the litigation between the
parties, with a request to investigate
the matter and determine
whether any grounds exist to suppose public funds are being
wastefully expended such as contemplated by
the
Local Government:
Municipal Finance Management Act 56 of 2003
. Furthermore, The
Minister and the MEC shall be requested to report to the Judge
President of this Division, their findings, within
12 months of the
referral to them of the judgments.
______________________
Sutherland
J (with whom Windell and Modiba JJ agree)
______________________
Windell
J
________________________
Modiba
J
Hearing and order:
26 July 2016
Reasons for Judgment
filed:
4 August 2016
For the first, third and
fourth Appellants: Adv M C Erasmus SC, with
him, Adv J Roux and Adv WTB Ridgard,
Instructed
by:
Makhubela Attorneys.
For
the respondent:
Adv Carol Steinberg, with her, Adv Nick Ferreira and Adv Musatondwa
Musandiwa,
Instructed
by:
Blake Bester De Wet and
Jordaan
.
[1]
Section 18
of
Superior Courts Act 13 of 2013
:
Suspension
of decision pending appeal
(1)
Subject to subsections (2) and (3), and unless the court under
exceptional circumstances orders otherwise, the operation and
execution of a decision which is the subject of an application for
leave to appeal or of an appeal, is suspended pending the
decision
of the application or appeal.
(2)
Subject to subsection (3), unless the court under exceptional
circumstances orders otherwise, the operation and execution
of a
decision that is an interlocutory order not having the effect of a
final judgment, which is the subject of an application
for leave to
appeal or of an appeal, is not suspended pending the decision of the
application or appeal.
(3)
A court may only order otherwise as contemplated in subsection (1)
or (2), if the party who applied to the court to order
otherwise, in
addition proves on a balance of probabilities that he or she will
suffer irreparable harm if the court does not
so order and that the
other party will not suffer irreparable harm if the court so orders.
(4)
If a court orders otherwise, as contemplated in subsection (1)-
(i)
the court must immediately record its reasons for doing so;
(ii)
the aggrieved party has an automatic right of appeal to the next
highest court;
(iii)
the court hearing such an appeal must deal with it as a matter of
extreme urgency;
and
(iv)
such order will be automatically suspended, pending the outcome of
such appeal.
(5)
For the purposes of subsections (1) and (2), a decision becomes the
subject of an application for leave to appeal or of an
appeal, as
soon as an application for leave to appeal or a notice of appeal is
lodged with the registrar in terms of the rules.
[2]
The order about wasted costs was made by consent, such costs being
tendered by the appellants. The sole reason to postpone the
matter
had been the contention that the Mogale City would be prejudiced if
the matter was heard then and there and did not have
the services of
Adv Erasmus SC to argue the case. When the matter was heard, Mr
Erasmus was present but informed the court that
Mr Roux, who had
appeared initially and made the application for a postponement would
argue the matter as he, having been briefed
only the day before, was
unready to do so. The impression that the matter had been delayed
unnecessarily, and on misleading grounds
required an explanation.
The postponement had caused considerable disruption as the
composition of the bench had to be changed
on short notice. It
became apparent that, at best for the counsel for Mogale City, the
postponement was required in order to
properly prepare a
counter-argument to that of the counsel for Fidelity. The view we
took was that the explanation was thin,
but it could not be ruled
out that there had been a genuine wish to have a silk argue the
matter, despite the slack efforts to
secure his participation. Mr
Erasmus had been abroad during the interval between appearances.
Plainly the only beneficiary of
the postponement was Mogale City.
The tender of costs was wholly appropriate.
[3]
These judgments are: Red Ant (Pty) Ltd v Mogale City
Municipality ( 16813/2012) SGHC 22 March 2013; Mogale City Local
Municipality v Fidelity Security Services (Pty) Ltd (
572/2013)
[2014] ZASCA 172
, 19 November 2014; Fidelity Security
Services (Pty) Ltd v Mogale City Local
Municipality (14936/2014) SGHC
17 December 2014; Fidelity Services
(Pty) Ltd v Mogale City Local Municipality ( 32719/2015)
SGHC 26 May 2016:
the judgment which the subject of the
section 18
proceedings.
[4]
In our view, it is doubtful that contempt proceedings would not be
legitimate until after the
dies
within which to apply for leave to appeal had lapsed. To bring
contempt proceedings within that period might well encounter an
evidential problem to exclude a non-contemptuous failure to comply,
but the application would remain legally competent. Plainly,
if
evidence existed of an unequivocal intention not to comply, and
better still, if evidence existed of a clear intention to
defy the
order, no controversy could arise.
[5]
Rule 30 of the Uniform Rules of Court provides:
Irregular
Proceedings
(1)
A party to a cause in which an irregular step has been taken by any
other party may apply to court to set it aside.
(2)
An application in terms of subrule (1) shall be on notice to all
parties specifying particulars of the irregularity or impropriety
alleged, and may be made only if-
(a)
the applicant has not himself taken a further step in the cause with
knowledge of the irregularity;
(b)
the applicant has, within ten days of becoming aware of the step, by
written notice afforded his opponent an opportunity of
removing the
cause of complaint within ten days;
(c)
the application is delivered within 15 days after the expiry of the
second period mentioned in paragraph (b) of subrule (2).
(3)
If at the hearing of such application the court is of opinion that
the proceeding or step is irregular or improper, it may
set it aside
in whole or in part, either as against all the parties or as against
some of them, and grant leave to amend or make
any such order as to
it seems meet.
(4)
Until a party has complied with any order of court made against him
in terms of this rule, he shall not take any further step
in the
cause, save to apply for an extension of time within which to comply
with such order.
[6]
See: Jowell v Bramwell-Jones 1998(1) SA 836 (W) at 903I –
904G per Heher J. At 904C- F it was held:
“
The
criterion laid down in Pettersen v Burnside
1940 NPD 403
at 406,
that a further step in the proceedings is `some act which advances
the proceedings one stage nearer completion', has
been followed and
applied for more than 50 years. In Cyril Smiedt (Pty) Ltd v
Lourens
1966 (1) SA 150
(O) at 152E Erasmus J phrased his
reasoning thus:
`Dit
is myns insiens duidelik dat die onreëlmatigheid deur die Reël
beoog 'n stap in die prosedure moet wees wat die
verwikkeling van 'n
geding op een of ander stadium in sy geheel raak.'
I
do not find these dicta sufficient. As far as I have been able to
discover, none of the cases looks at the limitation (now contained
in Rule 30(2)(a)) in the context of the purpose which it serves.
Essentially that purpose is to create a species of estoppel:
a party
may not be heard to complain of an irregular procedural step if he
acts in a manner which is at variance with an objection
to that
irregularity, even though he did not when taking the further step
appreciate that the step of the other party was irregular.
Presumably, there was a recognition that the taking of a further
step was likely to lead the other party to act in reliance on
that
conduct and it was thought undesirable to open the way to disputes
on wasted costs.
If
that is the thinking behind the limitation, then the Petterson v
Burnside dictum needs to be reformulated along the following
lines:
a further step in the proceedings is one which advances the
proceedings one stage nearer completion and which, objectively
viewed,
manifests an intention to pursue the cause despite the
irregularity. ( emphasis supplied)
[7]
Old, now repealed, Rule 49(11) provides:
Where
an appeal has been noted or an application for leave to appeal
against or to rescind, correct or vary an order of a court
has been
made, the operation and execution of the order in question shall be
suspended, pending the decision of such an appeal
or application,
unless the court which gave such order, on the application of a
party, otherwise directs.