About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: South Gauteng High Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: South Gauteng High Court, Johannesburg
>>
2020
>>
[2020] ZAGPJHC 424
|
|
Khuduyane Quigley (Pty) Ltd v Ekurhuleni Metropolitan Municipality (14228/2017) [2020] ZAGPJHC 424 (15 September 2020)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: 14228/2017
REPORTABLE:
YES
OF
INTEREST TO OTHER JUDGES: YES
REVISED
DATE:
15/9/2020
In
the matter between:
KHUDUYANE
QUIGLEY (PTY)
LTD
Plaintiff
(Respondent in
rescission)
and
EKURHULENI
METROPOLITAN MUNICIPALITY
Defendant
(Applicant in rescission)
J
U D G M E N T
KEIGHTLEY,
J
:
INTRODUCTION
1.
The Ekurhuleni
Metropolitan Municipality (the City), which is the defendant in the
main action, applies for the rescission of an
order granted by
default in the unopposed motion court by Nkosi AJ in favour of the
plaintiff in the action, Khuduyane Quigley
(Pty) Ltd (Khuduyane). The
latter opposes the application.
2.
The
litigation between the parties has some history. The dispute arises
out of an invitation to tender issued by the City in 2013
for the
supply of plant and equipment. Khuduyane was one of the companies
that tendered for the contracts. It was successful in
being awarded a
contract in respect of certain of bid items, but not in respect of
others. Dissatisfied with the outcome of the
tender process,
Khuduyane instituted judicial review proceedings under the Promotion
of Administrative Justice Act (PAJA)
[1]
by
way of an application in the High Court in 2015 (the review
application). It sought to review and set aside the award of those
bids in respect of which it had not been successful.
3.
The review
application was heard in January 2017 by Wepener J. He dismissed the
application. Although there is some dispute between
the parties about
the finer details of this outcome, it is common cause that that one
of the reasons for the dismissal of the application
was that the
contracts that were the subjects of Khuduyane’s challenge had
expired by the time the matter was heard.
4.
Undaunted,
Khudyane then instituted the main action against the City. In this
action, it again sought an order reviewing and setting
aside the
awards in respect of which it had not been successful. It also prayed
for an order extending the period stipulated in
s7(1) of PAJA for the
institution of the review to 1 June 2017. Khuduyane claimed damages
in the amount of some R8million from
the City, alternatively, a
statement and debatement of account. In addition, it sought a
directive that the City provide it with
various documents pertaining
to the impugned bids. The damages claim was based on contract,
alternatively delict, further alternatively
s8 of PAJA.
5.
The City filed
an exception to the particulars of claim. This was dismissed by
Mashile J. Thereafter the City filed a plea, and
Khuduyane a
replication. However, the City failed to respond to the discovery
notice served by Khuduyane on 24 October 2018. A
reminder letter was
sent on 4 December to the City’s attorneys, but this, too, met
with no response. On 21 February 2019
Khuduyane was granted an order
compelling discovery. This was hand-delivered to the City’s
attorneys on 4 March 2019, under
cover of an explanatory letter. Once
again, no response was forthcoming from the City’s attorneys.
They did not respond to,
nor oppose, the next step in the litigation
either. This was an application by Khuduyane to strike out the City’s
defence,
in view of its failure to comply with the order to compel
discovery, and to have default judgment entered against it (the
strike
out application). The strike out application was served on 5
May 2019, and a notice of set down was served on 21 May 2019.
6.
According to
Khuduyane, on the day before the scheduled set down of the strike out
application there was telephonic communication
between its attorney
and the City’s attorneys. The latter were aware of the set down
the following day, asked for copies
of the application, and told
Khuduyane’s attorneys that they would be present in court the
following day. However, when the
matter was called, there was no-one
on record for the City. It is safe to say that the City was unable,
in its affidavits in the
rescission application, to properly explain
how and why this came to pass.
7.
It was on this
basis that Nkosi AJ granted the order which is the subject matter of
the rescission application. That order was in
the following terms:
“
1.
The Defendant/Respondent's defence is struck out, with costs.
2.
Judgment is granted In favour of the Applicant as per the
Plaintiff/Applicant's Particulars of Claim:-
2.1
The awards of the Defendant under tender contract number RS(R)
12/2003 are set aside in respect of:
2.1
.1
bid item 12.3 in respect of the 12001-15000 litre capacity awarded to
Productive Plant Hire and construction Trust as the primary
contractor;
2.1.2 bid item 12.4 in
respect of the 12001-1500 litre capacity awarded to Productive Plant
Hire and Construction Trust as the primary
contractor;
2.1.3 bid item 13.1 in
respect of the 6001-9000 litre capacity awarded to Aqua Transport and
Plant Hire (Pty) Ltd as the primary
contractor;
2.1.4 bid item 13.2 in
respect of the 9001-12000 litre capacity awarded to Bongani Tom
Transport CC as the primary contractor;
2.1.5
bid item 13.3 In respect of the 12001-1500 litre capacity awarded to
Bongani T
om Transport C
C
as the primary contractor;
2.1.6 bid item 13.4 In
respect of the 12001-15000 litre. capacity awarded to Bongani Tom
Transport CC as the primary contractor.
3. The period stipulated
in
Section 7(1)
of the
Promotion of Administrative Justice Act 3 of
2000
, being 180 days is varied and extended until 1 June 2017.
4. The Defendant is
ordered to provide the Plaintiff with all:
4
.1
details of all plant and equipment hired from the primary, secondary
or any contractors ranked above the Plaintiff in respect
of bid items
12.3, 12.4, 13.1,13.2, 13.3 and 13,4;
4.2 all invoices rendered
by primary and/or secondary and/or any contractors ranked above the
Plaintiff in respect of such plant
and machinery hired;
4.3 all orders in respect
of plant and equipment required by the Defendant in respect of bid
items 12.3, 12.4, 13.1, 13.2, 13.3
and 4.4 all appointing letters and
all officially printed daily record books indicating the site and
hours worked, including the
one week sheet per machine in respect of
all machines, plant and equipment.
5
.
The Defendant is ordered to:
5.1 render a full
statement of account to the Plaintiff of all the orders, invoices and
payments made by the Defendant to the entities
which performed the
works in respect of bid items 12.3, 12.4, 13.1, 13.2, 13.3.and 13.4
for the period 30 April 2014 to 30 June
2016;
5.2 debate the aforesaid
account with the Plaintiff; and
5
.3
pay an amount equivalent to the profit that the Plaintiff would have
had the work been ordered from and done by the Plaintiff.
6. The Defendant is to
pay the Plaintiff's costs of suit.”
CONDONATION
FOR LATE FILING OF REPLYING AFFIDAVIT
8.
The City
sought condonation for the late filing of the replying affidavit.
This was vigorously opposed by Khuduyane, in light of,
particularly,
the City’s woeful record of compliance to date. The replying
affidavit was filed eight weeks out of time. The
City sought an
extension from Khuduyane, which was refused. The City filed its
replying affidavit late without an application for
condonation. It
subsequently filed a condonation application approximately a month
after it had filed its replying affidavit.
9.
Khuduyane
points out that although the City proffers some explanation for the
delay, the explanation only covers a very short period.
Substantial
periods of the delay are not explained at all. It is difficult to
avoid the conclusion that the City and/or its attorneys
simply failed
to pay due regard to the time periods prescribed in the Rules.
10.
It is trite
that a party seeking condonation is asking the court for an
indulgence. Condonation is not simply there for the asking.
A
sufficient explanation should be give for the full period of the
delay, in a case like this one. As far as the replying affidavit
is
concerned, Khuduyane is correct in its submission that the City
failed fully to explain its delay. It seems simply to have decided
to
take its own time in preparing a reply. This is not the type of
conduct that ought ordinarily to be overlooked by a court,
particularly in circumstances where the party is already on the back
foot as a result of its prior tardy conduct.
11.
There will be
no overwhelming prejudice to the City if the late filing of its
replying affidavit is not condoned. The replying affidavit
does not
place many facts before the court that are of material assistance to
the City. At most, the replying affidavit says that
the relevant City
officials were not told about the progress in the litigation, and
therefore they were unaware that Khuduyane
had filed the strike out
application. This averment, if accepted, would not be of great
assistance to the City. It implies that
the City’s attorneys
were to blame for the City’s failure to provide discovery and
to oppose the strike out application.
Even if this were so, it would
not absolve the City. It is well established in our law that
generally speaking a party cannot hide
behind the dilatory conduct of
its lawyers in seeking to explain a default judgment.
12.
On balance,
then, the City must suffer the consequences of its failure, without
proper explanation, to heed the time limits provided
for the filing
of its reply. This is not one of those cases where a great injustice
will be perpetrated by excluding the replying
affidavit. The City’s
condonation application in respect of the late filing of its replying
affidavit should be dismissed
with costs.
THE APPLICATION FOR
RESCISSION
13.
This brings me
to the central point of the matter, viz. the rescission application.
The City relies on Uniform
rule 42(1)(a)
, alternatively
rule
31(2)(b)
, alternatively the common law as the basis for rescission.
14.
The
City’s reliance on
rule 31(2)(b)
and the common law faces an
obvious obstacle. These bases of rescission require the applicant to
show good cause for its default.
This means it must give a reasonable
explanation for its default. Default that is wilful or grossly
negligent will not invite sympathy
from the court.
[2]
This
is one of the factors the court will consider in granting rescission.
In order to place the court in a proper position to evaluate
this
criterion, the applicant must set out the reasons for the default.
[3]
The
explanation must be sufficiently full to enable the court to
understand how the default came about, and to assess the applicant’s
conduct or motive.
[4]
An
application that fails to set out these reasons is not proper.
[5]
15.
The
explanation for the default set out in the City’s founding
affidavit leaves a lot to be desired. It attempts to explain
that its
attorneys did not know about the various notices and letters that had
been delivered by Khuduyane’s attorneys. The
junior attorney
looking after the matter was alleged to have been unaware of the
notice to compel, and the strike out application.
However, it is not
explained how he could have missed all of the notices and
correspondence. In its answering affidavit, Khuduyane
states that the
same junior attorney was well aware of the strike out application, as
he spoke to Khuduyane’s attorney about
the matter the day
before the hearing. Khuduyane’s attorney also emailed copies of
the papers to him again. According to
the filing sheets attached to
Khuduyane’s answering affidavit, it is clear that all the
notices were served on the City’s
attorney’s offices by
hand and were signed for. Whatever vague attempt at an explanation is
made in the founding affidavit
is completely undone by the answer
from Khuduyane.
16.
If this
application were to be determined solely on the basis of
rule
31(2)(b)
or the common law, the absence of a proper explanation for
the default would in all likelihood present an insurmountable
obstacle
for the City. However, the City’s primary ground for
rescission is
rule 42(1)(a).
I turn to consider whether this is a
viable option for the City.
17.
Rule 42(1)(a)
provides that:
"The
Court may, in addition to any powers it may have
mero
motu
or upon the application of any
party affected, rescind or vary … an order or judgment
erroneously sought or erroneously granted
in the absence of any party
affected thereby.”
The
purpose of the rule is to correct expeditiously an obviously wrong
judgment or order.
[6]
A
court may in its discretion refuse to rescind or vary an order under
this rule if an applicant does not apply for relief within
a
reasonable time.
[7]
What
is a reasonable time depends on the facts of each case.
[8]
18.
Khuduyane
submitted, in the first place, that this rider to relief under
rule
42(1)(a)
should serve to non-suit the City in this case. It points
out that the rescission application was launched some six months
after
Nkosi AJ’s order was granted.
19.
In my view,
this delay is not so unreasonable that it ought to prevent the City
from pursuing relief under
rule 42(1)(a).
The consequences for the
City, and hence for the public, of permitting the order to stand, if
indeed it was sought or granted erroneously,
are substantial. In
effect, the order binds the City to pay damages to Khuduyane based on
the profit it is able to prove it would
have made had the tenders
been awarded to it. The amount of damages claimed is over R8 million.
While this amount still needs to
be proved, it is a significant sum
of money that will have to be extracted from the public purse.
Against this consideration, a
delay of six months is not
unreasonable. What is more, it should be borne in mind that Khuduyane
itself only obtained the order
years after the tenders were awarded.
In the overall time frame of events, a six month delay in instituting
the rescission application
is not significant.
20.
What of the
substance of the
rule 42(1)(a)
rescission application?
21.
An
order is erroneously granted if there is an irregularity in the
proceedings or if it was not legally competent for a court to
have
made such an order.
[9]
Once
a court holds that an order was erroneously granted, it should
without further inquiry rescind the order,
[10]
and
it is not necessary for the applicant to show good cause.
[11]
22.
The City
advanced various grounds upon which it contended the Nkosi AJ order
was erroneously granted. Among these was the contention
that the nub
of the City’s case is that the order was erroneously granted
because Khuduyane was required to proceed under
rule 53
in seeking
judicial review. A further contention was that the order was
erroneously granted because the learned Judge was not aware
that
Khuduyane’s application for review was
res
judicata
.
I do not intend to deal with either of these grounds. In my view, the
real nub of the issue lies with the City’s primary
contention
to the effect that the order by default was not permissible in the
absence of evidence being led to support the relief.
23.
Khuduyane
accepted in argument that its cause of action was judicial review
under PAJA, coupled with a claim for damages under either
contract,
delict or
s8
of PAJA. It accepted that without the review and setting
aside of the tenders to the successful bidders, it would not have a
lawful
basis upon which to claim damages. Thus, it is essentially
common cause that Nkosi AJ ordered the review and setting aside of
tenders
on a default basis. It is also common cause that no evidence
was led before Nkosi AJ to support Khuduyane’s claim. Counsel
for Khuduyane submitted that the granting of the relief followed
automatically and necessarily once the City’s defence was
struck out in terms of prayer 1 of the notice of the strike out
application.
24.
The City
submits that this was erroneous and not in accordance with the
requirements of
rule 31(2)(a)
, as the relief sought was not a debt or
liquidated demand. This rule provides that:
“
Whenever
in an action the claim or, if there is more than one claim, any of
the claims is not for a debt or a liquidated demand
and a defendant
is in default of delivery of notice of intention to defend or of a
plea, the plaintiff may set the action down
as provided in subrule
(4) for default judgment and the court may, after hearing evidence,
grant judgment against the defendant
or make such order as to it
seems meet.”
25.
Khuduyane
counters the City’s submission on the basis that it had not
proceeded under
rule 31(2)(a)
in moving its strike out application
before Nkosi AJ. Instead, says Khuduyane, it based its application on
rule 35(7)
, which provides that:
“
If
any party fails to give discovery as aforesaid … the party
desiring discovery or inspection may apply to a court, which
may
order compliance with this rule and, failing such compliance, may
dismiss the claim or strike out the defence.”
On
this basis, Khuduyane says that it was procedurally entitled to both
strike out the City’s plea, and to obtain default
judgment
against the City at the same time. As it was procedurally entitled to
its default judgment, so the argument continues,
the order was not
erroneously granted, and
rule 42(1)(a)
does not assist the City.
[12]
26.
It is not
clear to me how Khuduyane’s reliance on
rule 35(7)
advances its
case. Under this rule it was permitted to apply to strike out the
City’s defence because of the failure of the
City to make
discovery. However, in order to obtain default judgment against the
City, Khuduyane had to take a further step, viz.
to seek and to
obtain default judgment. This is not to say that this had to be done
in separate proceedings. However, the striking
out of a defence under
rule 35(7)
ought not to be conflated with obtaining an order by
default against a defendant. In other words, the striking out of a
defence,
and obtaining judgment against the defendant involves an
additional process for the plaintiff.
27.
Having
succeeded in striking out the defence, Khuduyane now had an opponent
who had not filed a plea or notice of intention to defend.
The
Uniform rules provide for how default judgment may be obtained in
this situation. If the claim is one for a debt or liquidated
demand,
then the procedure to follow is governed by
rule 31(5)(a).
If it is
not for a debt or a liquidated demand, then the procedure is governed
by
rule 31(2)(a).
Whichever of these rules is applicable, the point
is that
rule 35(7)
, on its own, does not provide a proper basis for
granting default judgment.
28.
As I have
indicated, this does not mean that Khuduyane acted erroneously in
seeking a strike out of the plea in prayer 1, and default
judgment in
prayer 2. Provided it makes out a case for both prayers, it could
quite properly ask for the relief in one Notice.
The real question is
whether the granting of the relief was proper. This, in turn,
involves a consideration of the question of
whether
rule 31(2)(a)
applies to Khuduyane’s claim. In other words, were any of
Khuduyane’s claims “not for a debt or liquidated demand”.
If so, then the court was not permitted under this rule to grant
default judgment without hearing evidence.
29.
Khuduyane’s
primary cause of action was the judicial review and setting aside
under PAJA of the tenders that the City had
awarded in 2014 to
Khuduyane’s competing bidders. Its claim for damages rested on
this relief being granted. In addition,
in order to proceed with its
review, it required from the court relief in the form of an extension
under
s9
of PAJA of the 180-day period prescribed
[13]
for
the institution of review proceedings. This is because the impugned
tenders were awarded in about March or April 2014. Khuduyane’s
internal appeal against the decision was rejected on 4 December 2014.
However, its action to review and set aside the impugned
awards was
only instituted on 24 April 2017. This was over two years later.
30.
Khuduyane
says that the relief granted by default is declaratory in nature.
This is because it must still compute the damages that
the City is
ordered to pay under the order. This being the case, says Khuduyane
further, all it sought by way of default was an
order akin to a
declaration of rights, and that orders of this nature have been
treated by our courts as falling within the category
of a debt or
liquidated demand for purposes of
rule 31.
[14]
31.
It
is difficult to comprehend how relief of the nature sought and
granted to Khuduyane by default can properly be characterised
as a
simple declaration of rights which may be granted without any
evidence being led. Considering, for one moment, the prayer
for an
extension of the 180-day time period prescribed in
s7
of PAJA, this
is relief that requires careful consideration by a court. Where the
delay is longer than 180 days, a court is required
to consider
whether it is in the interests of justice for the time period to be
extended.
[15]
This
is expressly required under
s9(2).
[16]
In
the context of legality review, as opposed to PAJA review, where
there is no explanation for the delay, it will be undue.
[17]
Specifically
in the context of PAJA review, and the extension of the 180 time
period, the Supreme Court of Appeal has explained
what is required as
follows:
“
And
the question whether the interests of justice require the grant of
such extension depends on the facts and circumstances of
each case:
the party seeking it must furnish a full and reasonable explanation
for the delay which covers the entire duration thereof
and relevant
factors include the nature of the relief soug
ht
,
the extent and cause of the delay, its effect on the administration
of justice and other litigants the importance of the issue
to be
raised in the intended proceedings and the p
ros
pects
of success.”
[18]
32.
It
is apparent from this dictum that an extension under
s9
of PAJA is a
form of condonation. Similar considerations apply. A party seeking
condonation asks the court for an indulgence. It
bears the onus of
putting before the court the necessary facts to justify why the court
should grant it the indulgence it seeks.
It must make a focused
application to demonstrate that it is in the interests of justice to
grant the extension.
[19]
Where
a party seeks an extension under
s9
of PAJA in a case involving the
setting aside of tenders, one of the factors a court is required to
consider is the extent to which
the performance under the contracts
associated with the tenders has been proceeded with, and the
resulting prejudice to the organ
of state in setting the contract
aside at the late stage in question.
[20]
These
are facts critical to a proper determination of what the interests of
justice require.
33.
In my view, it
is axiomatic that a proper exercise of the power accorded to courts
to extend the 180-day period for review requires
evidence to be
placed before the court to justify the indulgence sought. Ordinarily,
the evidence would be contained in affidavits
placed before the
court. These affidavits would also ordinarily contain evidence to
support the claim for judicial review. In this
case, however, and
having failed in its original application for judicial review,
Khuduyane elected to proceed by way of an action
for the same relief,
together with a claim for damages.
34.
Although it
filed an affidavit in support of its strike out application, that
affidavit contained no evidence either in support
of the application
under
s9
of PAJA or in support of the review. All that Nkosi AJ had
in the court file in this regard was the particulars of claim. It is
trite that averments in particulars of claim are not evidence. In any
event, the particulars of claim did not give a full explanation
for
the delay, nor did they deal with the critical issue of prejudice to
the City in the event that the review period be extended
to permit a
review more than three years after the contracts had been awarded.
35.
In my view,
the court committed an irregularity in granting the relief under
s9
of PAJA in the absence of any evidence before it to establish that
the interests of justice required it.
36.
If I am
correct in this conclusion, then it follows that the court could not
properly have proceeded to grant the substantive review
relief. This
is because, in the absence of an extension of the time period for
review, the substantive review relief would fall
away. So too, then,
would the damages claim, which was dependent on the setting aside of
the impugned tenders. In other words,
the whole house of cards for
Khuduyane is tainted by an irregularity warranting a rescission under
rule 42(1)(a).
37.
However, even
if one goes beyond this fundamental problem with Khuduyane’s
opposition to rescission under
rule 42(1)(a)
, I am in any event not
persuaded that it was proper for the court to have granted the review
and pronounced on the City’s
liability for damages in the
absence of evidence.
38.
A
claim that is not for a debt or liquidated demand cannot be disposed
of by default without evidence being led. A debt or liquidated
demand
in the context of default judgment can be equated with a claim for a
fixed, certain or ascertained amount or thing.
[21]
39.
A
judicial review of the grant of a tender, and a consequent claim for
damages for loss of profits does not logically fit the description
of
a fixed, certain or ascertained thing. A breach of the right to
administrative justice ordinarily attracts public law remedies,
such
as a review under PAJA. The purpose of the remedy is to pre-empt or
correct or reverse an improper administrative function.
[22]
Judicial
review is inherently a complex legal issue. The default procedure for
judicial review is that it is instituted by way of
a notice of motion
with supporting affidavits.
[23]
In
the ordinary course, therefore, a court adjudicating a review matter
will have the relevant facts and evidence before it when
it makes its
determination. The court will determine, on a balance of
probabilities, and based on the evidence before it, whether
or not
the applicant has made out a case for review.
40.
A
party like Khuduyane, which seeks review by way of an action, should
be in no different position. It must still prove its case
on a
balance of probabilities. This means it must place evidence before
the court to sustain the relief it seeks. This point is
particularly
critical where, as in this case, the party takes the relatively
unusual step of claiming damages consequent on the
review and setting
aside of the tender awards. While
s8
of PAJA permits a court to make
an award of damages, this is only in exceptional cases.
[24]
What
is exceptional is left to the specific context of each case.
[25]
At
the very least, then, before a court can make a ruling on whether
such damages are justified, it would have to consider evidence
of the
alleged exceptional circumstances permitting the claim.
41.
As
far as a delictual claim for damages flowing from unlawful
administrative action is concerned, ultimately this is a question
of
wrongfulness. It involves a consideration of the
boni
mores
of society, which is a value judgment that embraces all the relevant
facts, the sense of justice of the community and considerations
of
legal policy.
[26]
The
ultimate question is whether on a conspectus of all the relevant
facts and considerations, public policy and public interest
favour
holding the conduct unlawful and susceptible to a remedy in
damages.
[27]
It
is difficult to conceive of how such considerations can properly be
adjudicated upon if a court is permitted to grant default
judgment in
a matter involving such a claim without hearing any evidence. As the
Constitutional Court has pointed out, imposing
delictual liability on
the negligent performance of functions of tender boards must be
approached with caution, as it opens the
door to a spiral of
litigation:
“
That
would be to the considerable detriment of the public at large. The
resources of our state treasury, seen against the backdrop
of vast
public needs, are indeed meagre. The fiscus will ill-afford to
recompense by way of damages disappointed or initially successful
tenderers and still remain with the need to procure the same goods or
service (sic).”
[28]
42.
In
Minnaar
v Van Rooyen
,
the Supreme Court of Appeal considered whether it was proper to grant
an order under s424(1) of the Companies Act by way of default.
It
held:
“
It
is inconceivable that an order would be made declaring a director
liable for the debts of a company on the basis of reckless
or
fraudulent conduct where no evidence is led to support the
allegations made.”
[29]
43.
The Court
noted that recklessness is not lightly found, and that a causal link
must be established between the company’s loss
and the
director’s conduct. This must be proved on a balance of
probabilities. The Court found that:
“
None
of the allegations against Minnaar were supported by evidence. None
was led. There was thus no proof at all, let alone prima
facie proof,
of whether his conduct had been fraudulent or reckless. Default
judgment should, therefore, not have been granted.”
[30]
It
concluded that the plaintiff was not entitled procedurally to default
judgment against the defendant without leading evidence,
and that the
default declaratory order under s424(1) had been sought and granted
erroneously within the meaning of rule 42(1)(a).
[31]
44.
In my view
similar considerations apply where a party, like Khuduyane, applies
for a default order reviewing and setting aside a
tender award, and a
declaration that the City is liable to it for its consequent loss of
profits in such amount is it as subsequently
able to prove. An order
of this nature is not lightly granted. The claimant would have to
establish its case on a balance of probabilities.
It cannot do so in
the absence of evidence to establish, first, the unlawfulness of the
tender awards and, in addition, that the
City’s liability for
damages should be ordered. Damages flowing from an unlawful award of
a tender (assuming this is shown),
as the courts have pointed out,
are not simply granted on request. It is not a run-of-the-mill remedy
in judicial review, and special
policy considerations apply. In these
circumstances, it was not proper, in my view, for Khuduyane to seek
and for Nkosi AJ to grant
the relief sought by way of default without
evidence.
45.
This
constituted an irregularity in the proceedings. Khuduyane was not
procedurally entitled to its order. It was granted erroneously
and is
liable to be rescinded under rule 42(1)(a).
CONCLUSION
AND ORDER
46.
For the above
reasons, I make the following order:
1.
The application for condonation for the late filing of the replying
affidavit
is dismissed with costs, such costs to include the costs of
senior counsel.
2.
The default judgment and order granted by the Court on 28 May 2019 is
rescinded.
3.
The applicant's defence in the main action is reinstated.
4.
The respondent is directed to pay the costs of the rescission
application (excluding
the aforementioned condonation application),
such costs to include the costs of senior counsel.
KEIGHTLEY
J
JUDGE
OF THE HIGH COURT
GAUTENG
LOCAL DIVISION
Date
Heard (by videolink):
28 AUGUST 2020
Date
of Judgment:
15 SEPTEMBER 2020
On
behalf of the Applicant:
Mr. C Georgiades
Instructed
by:
Tshidi Zebediela Attorneys
On
behalf of the First & Second Respondent:
Mr. Carstensen SC
Instructed
by:
Hutcheon Attorneys
[1]
3
of 2000
[2]
Grant
v Plumbers (Pty) Ltd
1949
(2) SA 470
(O) at 476-7, as well as the long line of cases that have
applied this principle
[3]
Brown
v Chapman
1928
TPD 320
at 328
[4]
Silber
v Ozen Wholesalers (Pty ) Ltd
1954
(2) SA 345
(A) at 353A
[5]
Marais
v Mdowen
1919
OPD 34
[6]
Bakoven
Ltd v GJ Howes (Pty) Ltd
1992
(2) SA 466
(E) at 471E-F;
Promedia
Drukkers & Uitgewers (Edms) Bpk v Kaimowitz
1996 (4) SA 411(C)
at 417B-I
[7]
Firestone
South Africa (Pty) Ltd v Gentiruco AG
1977
(4) SA 298
(A) at 306H
[8]
Promedia
Drukkers
,
above, at 421G
[9]
Promedia
,
above, 417G-H
[10]
Tshabalala
v Peer
1979
(4) SA 27
(T) at 30D;
Bakoven
Ltd
,
above, at 471G
[11]
Topol
v L S Group Management Services
(Pty)
Ltd
1988 (1) SA 639
(W) at 650D-J
[12]
Lodhi
2 Properties Investments CC v Bondev Developments (Pty) Ltd
2007
(6) SA 87
(SCA) at 94E
[13]
Section
7(1) of PAJA requires that proceedings for judicial review must be
be instituted without unreasonable delay and not later
than 1809
days after the conclusion of any internal remedies, after the
applicant was informed of the impugned decision.
[14]
See,
for example,
Curlewis
v Carlyle
1980 TS 932
[15]
Buffalo
City Metropolitan Municipality v Alsa Construction (Pty) Ltd
2019
(4) SA 331 (CC).
[16]
“
The
court or tribunal may grant an application in terms of subsection
(1) where the interests of justice so require.”
[17]
Buffalo
City
,
above at 78
[18]
Camps
Bay Ratepayers’ and Residents’ Association and another v
Harrison and another
[2010]
2 All SA 519 (SCA)
[19]
Passenger
Rail Agency of South Africa v Siyangena Technologies (Pty) Ltd
(Unreported;
Gauteng Division, Pretoria, Case No 20 16/7839; 3 May 2017) at para
20
[20]
Alsa
Construction (Pty) Ltd v Buffalo City Metropolitan Municipality
2017
(6) SA 360
(SCA) at para 10(d)
[21]
S
upreme
Diamonds (Pty) Ltd v Du Bois
1979
(3) SA 444 (W)
[22]
Steenkamp
NO v Provincial Tender Board Eastern Cape
2007
(3) SA 121 (CC)
[23]
Uniform
rule 53
[24]
Section
8(1)(c)(ii)(bb) provides, in relevant part, that:
“
The
court or tribunal, in proceedings for judicial review in terms of
section 6 (1), may grant any order that is just and equitable,
including orders … in exceptional cases … directing
the administrator or any other party to the proceedings to
pay
compensation”.
[25]
Steenkamp
,
above, para 30
[26]
Steenkamp
,
above para 41
[27]
Steenkamp
,
above para 42
[28]
Steenkamp
,
above, para 55
[29]
Minnaar
v Van Rooyen NO
2016
(1) SA 117
(SCA)
at
para 17
[30]
At
para 16
[31]
At
para 19