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[2022] ZAGPJHC 228
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Transet SOC Ltd and Another v CRRC E-Loco Supply (Pty) Ltd and Others (11645/2021) [2022] ZAGPJHC 228 (12 April 2022)

REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO:
11645/2021
REPORTABLE:
Yes
OF
INTEREST TO OTHER JUDGES: Yes
12
April 2022
In
the matter between
:-
TRANSNET
SOC
LTD
1
ST
APPLICANT
SPECIAL
INVESTIGATING UNIT

2
ND
APPLICANT
And
CRRC
E-LOCO SUPPLY (PTY) LTD
(FORMERLY
CSR E-LOCO SUPPLY (PTY) LTD)

1
ST
RESPONDENT
BOMBARDIER
TRANSPORTATION SOUTH
AFRICA
(PTY) LTD

2
ND
RESPONDENT
CRRC
SA ROLLING STOCK (PTY) LTD
(FORMERLY
CNR ROLLING STOCK SOUTH AFRICA
(PTY)
LTD)

3
RD
RESPONDENT
WABTEC
SOUTH AFRICA TECHNOLOGIES (PTY) LTD
(FORMERLY
GENERAL ELECTRIC SOUTH AFRICA
TECHNOLOGIES
(PTY) LTD)

4
TH
RESPONDENT
This
judgment was handed down by being downloaded to caselines and by
email transmission to the parties. the deemed date and time
if
delivery is 10h00 on 11 April 2022.
JUDGMENT
HEADNOTE
Rule
30 application.
The
applicant launched a self-review application under the principle of
legality seven years after the transaction – one of
the
respondents, CRRC, instead of filing an answer or a rule 6(5)(d)
notice, brought a substantive application to dismiss the review
on
the sole ground of delay – the applicant then brought a rule 30
application to dismiss that (Delay) application
Held:
The
rules of court did not permit a party to evade entering into the
‘main case’ by a risk-free ancillary application
The
Gauteng Commercial Court Rules, which were designed to achieve
efficiency in litigation, inter alia, by way of the intervention

during the preparation stage by a judge case-managing the matter and
thereby impose procedures at variance with the uniform rules
of
court, could not be interpreted to include a power being vested in
that judge to unilaterally invent or sanction a process that

contradicted the rights of the parties.
The
‘delay’ issue was in any event not a discrete issue that
was separable from a consideration of the ‘merits’
of the
review and from the discretionary power of a court when having
declared a tender process unlawful to nevertheless decide
what might
be a just and equitable order in which the reason for the delay and
the nature of the irregularity was to be weighed.
The
rule 30 application was granted.
SUTHERLAND
DJP:
Introduction
[1]
Three related
applications are implicated in this matter.
[2]
First, the
applicant (Transnet) instituted self-review proceedings to have
certain tenders, and the consequent contracts with several

respondents (the contractors), declared unlawful and to be set aside.
(The review application) The chief grounds relied on are

irregularities allegedly perpetrated by servants of Transnet in the
tender and contracting process by way of skewing the process
to
deliberately favour the contractors. The relief sought includes a
disgorging of profits by the contractors and related relief.
The
contractors, understandably, oppose this relief.
[3]
Second,
the first respondent–contractor, CRRC-Loco Supply (Pty) Ltd
(CCRC), thereupon brought a separate substantive application
for a
final order dismissing the review application. It did so without
entering into the review application by either filing an
answering
affidavit or a Rule 6(5)(d) notice.
[1]
The rationale expressed by CRRC is that the review can be disposed of
by addressing the allegedly discrete issue of the long delay
in
bringing the review application. (The Delay application)
[4]
Third,
the matter immediately before the court is a Rule 30 application (the
Rule 30 application) brought by Transnet, to pray for
the dismissal
of the Delay application on the grounds that it is an irregular
step.
[2]
The
principal issues
[5]
The
merits
per
se
of the review application are irrelevant for present purposes. What
is critical to the present application is that the review application

has been brought under the principle of legality, as post-
Gijima
,
[3]
it had to be, and not under the Promotion of Administrative Justice
Act 1 of 2000 (PAJA). Therefore, no express statutory time
period
exists within which to bring the review, as would have been the case
under PAJA. The alleged irregularities occurred about
seven years
before the application was launched. This long elapse of time is the
trigger for the present controversy.
[6]
The founding
affidavit of Transnet is voluminous. The record of decision was
called for and a record has been provided which has
not yet ceased to
be a source of controversy in itself. However, the debate on the
adequacy of the record may be ignored for present
purposes. No
answering affidavits have yet been filed by any of the contractors.
The contractors, other than CRRC have not participated
in the Delay
application and are not implicated in the Rule 30 application, but
plainly they would also benefit from the Delay
application
succeeding.
[7]
There is no
quarrel from Transnet with the contractors resisting the review on
grounds of delay and it stands ready to meet such
a case, if raised.
However, Transnet contends that the question of delay cannot be
addressed as a discrete issue divorced from
a consideration of the
merits of the review. On that premise, it is contended that it is
improper to endeavour to have the delay
issue dealt with before the
contractors have entered into the main case, ie the review
application. It is contended by Transnet
that a substantive
application to quash the review is an irregular step and that the
contractors must elect to either file an answering
affidavit or file
a Rule 6(5)(d) notice raising delay as their sole ground of defence.
[8]
CRRC is open
and forthright about its conscious desire to avoid entering into the
main case. The stance taken by it is eminently
understandable. It
deserves a fair exposition. Seven years after the event, Transnet
announced that it had acted unlawfully and
seeks a review. Transnet,
thereby, has destabilised the comfort of the contractors who, long
ago, as they understand matters, delivered
in terms of their
obligations. There is at least a risk, if not a probability, that the
delay point will be the defining issue
in the review application.
Therefore, the question posed is whether the contractors must, in the
light of that factor, invest money
and effort on a grand scale to
meet the voluminous application by Transnet to self-review, on the
supposed merits? Should ultimately,
the delay point triumph, it is
contended, a waste of resources would have ensued. Thus, runs the
argument, it is sensible to try
the delay issue now, separately,
which approach might spare much court-time and private resources.
[9]
The
idea of sparing time and resources by discretely addressing a single
issue that can dispose of a case is not alien to our legal
tradition;
Rule 33(4), used in actions, is the clearest expression of that
policy choice.
[4]
Of course, an issue that would be suitable for a Rule 33(4)
separation is an issue which is truly discrete and is capable of
disposing
of the whole case. No less important, the deliberation on a
genuinely discrete issue must be a ‘convenient’ way of
litigating the case, a factor requiring a fact-specific assessment of
the given case in the context of its own circumstances.
[10]
It
is acknowledged on behalf of CCRC that the Delay application is a
novel proceeding but is nevertheless, so it is argued, justified
by
its practical utility. From that premise, an argument was advanced
about the peculiar opportunities for pragmaticism which can
or ought
to flow from the special features of the Commercial Court system
which operates within the Gauteng Division of the High
Court, which
apply to this case.
[5]
This consideration, so runs the argument, can be linked to section
173 of the Constitution and the High Court’s inherent

jurisdiction to regulate its own processes.
[6]
The Delay application, so it is argued, is an appropriate expression
of what the Commercial Court system envisages can be accomplished
in
the interests of efficient litigation.
[11]
Notwithstanding
these commendable considerations about savings of time and money and
effort, they cannot find application in a vacuum.
In this case, the
defining context must be the law about self-review. Herein lies the
terrain of the key arguments advanced in
the debate. More
particularly, it is apparent that the application of any novel
procedure must be adapted to the attributes, and
indeed, the
strictures, that are inherent in the dynamics of a self-review
application under the principle of legality and the
jurisprudence
that has grown up to give substance to that species of litigation.
[12]
There
are two notable features of that jurisprudence which form the bedrock
of review under the principle of legality. These features
permeate
the debate in this matter; they are addressed more fully hereafter,
but bear emphasis at the outset of the analysis. First,
a court has
no option but to declare what is unlawful as unlawful. Buried in that
injunction is an implied strait-jacket; a court
mus
t
examine the allegations of irregularities, come what may. An
examination of the merits does not necessarily imply what
order
might or could follow. Second, notwithstanding a declaration of
unlawfulness, in a given case, the appropriate relief must be ‘just

and equitable’.
[7]
This disarming and charming rubric holds within it a far more complex
dynamic than the label suggests, for it can result in no
consequent
relief, at all, being granted, upon a declaration of unlawfulness.
[13]
Accordingly,
what is called for is an examination of the following questions:
13.1.
What is the
role of the delay defence in self-review applications and how, and
when, can it be raised?
13.2.
What latitude,
if any, does a court have to vary established procedure under the
rules of court to advance the cause of efficient
litigation, and,
upon what juridical foundation can such power exist?
The
Delay Defence in self-review
[14]
The
appropriate starting point is to acknowledge the constitutional
grundnorm
that the Rule of Law is supreme. Upon that foundation rests the
Principle of Legality. That principle finds its most potent
expression
in the maxim that every exercise of a public power must be
authorised by law. Any purported exercise of a public power that
fails
that test is unlawful.
[8]
[15]
Transnet
is an organ of state. Its actions are, generally, exercises of public
power, including the awarding of tenders. Its relationship
with the
contractors is based on the decision to award tenders to them. When
Transnet realised that the tenders, on its version
of the events,
were suspect, it was obliged, at least by section 237 of the
Constitution, to assess whether there had been a violation
of the law
by its employees and agents, and having reached that conclusion, was
under a duty to put matters right.
[9]
The sole modality for doing so was an application for self-review.
[16]
The issue of
an undue delay in a review under the principle of legality was
addressed in
Gijima
thus:
‘
[43]
Relying on s 237 of the Constitution, Skweyiya J held in
Khumalo
:
'Section
237 acknowledges the significance of timeous compliance with
constitutional prescripts. It elevates expeditious and diligent

compliance with constitutional duties to an obligation in itself. The
principle is thus a requirement of legality.
This
requirement is based on sound judicial policy that includes an
understanding of the strong public interest in both certainty
and
finality. People may base their actions on the assumption of the
lawfulness of a particular decision and the undoing of the
decision
threatens a myriad of consequent actions.
In addition,
it is important to understand that the passage of a considerable
length of time may weaken the ability of a court
to assess an
instance of unlawfulness on the facts. . . . Thus, the very purpose
of a court undertaking the review is potentially
undermined where, at
the cause of a lengthy delay, its ability to evaluate fully an
allegation of illegality is impaired.' [Footnotes
omitted.]
[44] The
reason for requiring reviews to be instituted without undue delay is
thus to ensure certainty and promote legality:
time is of utmost
importance. In
Merafong
Cameron J said:
'The
rule against delay in instituting review exists for good reason: to
curb the potential prejudice that would ensue if the lawfulness
of
the decision remains uncertain. Protracted delays could give
rise to calamitous effects. Not just for those who rely upon
the
decision but also for the efficient functioning of the
decision-making body itself.'
[45]
….
[46]
….
[47]
Khumalo
also
says that courts have a 'discretion to overlook a delay'. Here is
what we said:
'(A)
court should be slow to allow procedural obstacles to prevent it from
looking into a challenge to the lawfulness of an exercise
of public
power. But that does not mean that the Constitution has dispensed
with the basic procedural requirement that review proceedings
are to
be brought without undue delay or
with a court's discretion
to overlook a delay
.' [Emphasis added.]
[48]
Tasima
explained
that this discretion should not be exercised lightly:
'While
a court should be slow to allow procedural obstacles to prevent it
from looking into a challenge to the lawfulness of an
exercise of
public power, it is equally a feature of the rule of law that undue
delay should not be tolerated. Delay can prejudice
the respondent,
weaken the ability of a court to consider the merits of a review, and
undermine the public interest in bringing
certainty and finality
to administrative action. A court should therefore exhibit vigilance,
consideration and propriety before
overlooking a late review,
reactive or otherwise.' [Footnotes omitted.]
[49]
From this, we see that no discretion can be exercised in the air. If
we are to exercise a discretion to overlook the inordinate
delay
in this matter, there must be a basis for us to do so. That basis may
be gleaned from facts placed before us by the parties
or objectively
available factors…..
[50]
Sita argued that, in a reactive challenge, the question of
'unwarranted delay' does not arise due to the fact that the

challenge is raised as a defence to the relief which is sought in the
main proceedings. Cameron J puts paid to this in
Kirland
.
That judgment — not purporting to decide the PAJA/principle of
legality controversy — held:
'PAJA
requires that the government respondents should have applied to set
aside the approval, by way of formal counter-application.
They must
do the same even if PAJA does not apply. To demand this of government
is not to stymie it by forcing upon it a senseless
formality. It is
to insist on due process, from which there is no reason to exempt
government.
On the
contrary, there is a higher duty on the state to respect the law, to
fulfil procedural requirements and to tread respectfully
when dealing
with rights. Government is not an indigent or bewildered litigant,
adrift on a sea of litigious uncertainty, to whom
the courts must
extend a procedure circumventing lifeline. It is the Constitution's
primary agent. It must do right, and it must
do it properly.'
[Footnotes omitted.]’
[17]
After
the decision in
Gijima
,
the Constitutional Court decided
Bufflalo
City
v
Asla
Construction.
[10]
That
case dissected the approach about how to deal with an undue delay
issue in self-review applications. In paras [48] –
[72], the
Constitutional Court described four principles.
[11]
As I understand the Constitutional Court, the law on the correct
approach to a Delay defence in a self-review case can be succinctly

summarised thus:
[17.1]
it is improper to deal with delay before giving attention to the
merits of the review,
[12]
[17.2]
where invalidity is indeed detected, it must be declared to be
so,
[13]
[17.3]
the merits are relevant to what to choose to do about an undue delay
when that is found to exist,
[14]
[17.4]
whether or not to overlook undue delay is a flexible evaluation which
is driven by several factors
[15]
[17.5]
undue delay is bound up in the just and equitable remedy which may be
that no consequent relief is granted; ie, the review
might succeed
but the contracts are not set aside.
[16]
[18]
In my view, it
is readily apparent that the Delay defence is not a self-standing
issue capable of separation from the merits. It
is a
sui
generis
defence. It is not like prescription where the elapse of time
per
se
is the
‘causa’ and could be tried discretely as a special case
in limine
.
Rather, the Delay defence is located within the range of
considerations relevant to the exercise of an equitable discretion
which
comes into play in conjunction with a court assessing whether
an irregularity has occurred, and if so, how deviant the irregularity

is.
The
procedural aspects relating to the Rules of Court
[19]
It
was argued on behalf of CRRC, by way of illustrating the predicament
it faces, that had the matter been brought by way of action,
it could
have had the opportunity of a rule 33(4) separation of the Delay
issue. The thinking is flawed. The Delay issue is not
discrete, as
demonstrated above, and is therefore not susceptible to the Rule
33(4)- type separation. Moreover, the requirement
of convenience is a
critical attribute of an appropriate Rule 33(4) order for a
separation. None seems to present itself. The motive
for the approach
proposed by CRRC cannot fall within the scope of what ‘convenience’
means in a rule 33(4) proceeding.
Plainly, the separate application
model has advantages for CRRC and the spectre of huge waste occurring
in the fullness of time
is real, but the forfeiture of such an
opportunity is not to be contrasted with convenience, in the proper
sense, as used in the
rule, which is concerned with the forensic
practicalities not strategic advantage.
[17]
[20]
More
fundamentally, it is not open to a respondent or defendant to
outflank an applicant or plaintiff by initiating a wholly separate

application aimed at exploding the ‘main case’. The
counter-assault must engage with the adversary within the ‘main

case’. There is no room for a risk-free tactic in our civil
procedure. Nor, in my view is there, on policy grounds, any reason
to
suppose that any unfairness is inadvertently caused by such a
stricture.
[18]
Although it is arguable whether the rights a litigant may claim under
the Rules of Court are properly to be characterised as ‘substantive’

or ‘procedural’, they remain rights, which ought not to
be compromised without a clear and present danger that their

application shall wreak injustice. This consideration rules out any
purchase for an argument that the court’s inherent jurisdiction

could be invoked in ‘the interests of justice’.
[19]
[21]
Moreover, the
approach proposed by CRRC must unavoidably mean piece-meal litigating
of aspects of the matter, a consequence that
our legal tradition
rejects. Nonetheless, it is true that an exception could be regarded
as a veritable exception to this anti-piecemeal
principle. What might
the position be, were an attempt to be made for the Delay application
to be squeezed into an exception-type
proceeding? In an exception it
is contemplated that a challenge to the initiators case on its own
terms can be launched. Importantly,
if that challenge fails, there
remains a chance afterwards to offer a defence by filing a plea,
setting out allegations of fact.
In my view, this attempt would also
fail because the Delay defence, in the context of self-review, is not
a point of law nor, indeed,
the invocation of a legal right. This is
so because the delay factor is bound up in a mixture of factual
findings and value assessments
about what, holistically, constitutes
‘undue’ delay in the specific circumstance. As such,
delay is a mere facet of
that enquiry.
[22]
The argument
that the dynamics of the Gauteng Commercial Court litigation model
opens a door to unfettered pragmatism by the case-manager-judge
is
probably an exaggerated proposition. But even assuming that the
Commercial Court model envisages quite novel
ad
hoc
designer procedural techniques, this line of argument cannot overcome
the fact that the Delay defence is not a discrete issue.
No degree of
pragmaticism can surmount that fact. The full extent of the space to
vary the rules of court by agreement among the
parties need not be
further explored for the purposes of this judgment.
Conclusions
[23]
In the result,
the Rule 30 application must succeed, both for prosaic procedural
reasons and because the attributes of the Delay
defence render it
unsusceptible to separation in a self-review case.
[24]
Counsel who
appeared in this hearing have advanced several other arguments on
points of law, which though of considerable intellectual
interest,
need not, in the light of the key findings I have made, to be
addressed for the purposes of deciding this application.
They may
well find expression in controversies in the future and it is prudent
not to tread on arguments that may bloom in more
fertile fields.
Costs
[25]
The
appropriate costs order is that costs follow the result. The order
includes the costs of two counsel for Transnet and for the
second
applicant, Special Investigative Unit. The two respondents filed a
single set of heads of argument, but both sets of counsel
addressed
the court on a part thereof. Each party is entitled to the costs of
the various counsel in preparing the heads of argument.
The fact that
a single document was filed is not the governing characteristic of
the work or of costs involved; the parties might
just as well have
filed two documents instead of one. Precisely how the costs of the
heads should be calculated should be left
to the taxing master, if it
becomes controversial.
The
order
(1)
The rule 30
application is granted.
(2)
The first respondent
is directed to withdraw its delay application.
(3)
The first respondent
shall bear the costs of the first and second applicants, including
the costs of two counsel.
ROLAND
SUTHERLAND
DEPUTY
JUDGE PRESIDENT
GAUTENG
DIVISION, JOHANNESBURG
Heard:
8 March 2022.
Judgment:
12 April 2022
For
the 1
st
Applicant (Transnet)
Adv
Q
Leech
SC
Adv
J Griffiths
Instructed
by Mncedisi Ndlovu & Sedumedi Attorneys
For
the 2
nd
Applicant (Special Investigative Unit)
Adv
A
Cockrell
SC
Adv
M Seape
Adv
K Hardy
Instructed
by The State Attorney
For
the 1
st
Respondent (CRRC)
Adv
P Louw SC
Adv
V
Notshe
SC
Adv
Z Matebese SC
Instructed
by
B.
Makukunzva Attorneys Inc.
The
other Respondents did not take part in these proceedings.
[1]
Rule
6 (5) (d):
‘
Any
person opposing the grant of an order sought in the notice of motion
must —
(i)
within the time stated in the said notice, give applicant notice, in
writing, that he or she intends to oppose the application,
…;
(ii)
within fifteen days of notifying the applicant of his or her
intention to oppose the application, deliver his or her answering

affidavit, if any, together with any relevant documents; and
(iii)
if he or she intends to raise any question of law only he or she
must deliver notice of his or her intention to do so, within
the
time stated in the preceding sub-paragraph, setting forth such
question.’
[2]
Rule
30:
‘
(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…
(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.’
[3]
State
Information Technology Agency SOC Ltd v Gijima Holdings (Pty) Ltd
2018 (2) SA 23
(CC) para [37] – [38]
[4]
Rule
33(4):
‘
If,
in any pending action, it appears to the court
mero
motu
that
there is a question of law or fact which may conveniently be decided
either before any evidence is led or separately
from any other
question, the court may make an order directing the disposal of such
question in such manner as it may deem fit
and may order that all
further proceedings be stayed until such question has been disposed
of, and the court shall on the application
of any party make such
order unless it appears that the questions cannot conveniently be
decided separately.’
[5]
In
terms of a directive by the Judge President, special rules for
commercial cases have been issued aimed at offering litigants
a
speedier, less cumbersome and more efficient procedure to litigate
commercial disputes, than is offered by the Uniform Rules
of Court.
It contemplates a significant deviation from the Rules of court,
especially by abolishing conventional discovery and
substituting a
focused bundle of essential documents and by requiring all evidence
in chief to be adduced on affidavit. The matter
is also subjected to
close management by a judge assigned to oversee the preparation and
hear the matter. Among the chief valued-added
attributes is that the
case managing judge hears all interlocutory disputes informally or
formally which reduces delays which
might occur in waiting for one’s
turn on the ordinary roll. The system also applies to applications
where the case management
role of the judge is the key attribute on
the premise that such supervision can move the case along speedily.
A case is certified
a commercial matter upon request by one or both
parties. In this case all the parties have agreed to subject
themselves to the
Commercial Court rules. (See: Full text of the
Directive in
Erasmus,
Superior Court Practice, H5
.)
[6]
Section
173 of the Constitution:
‘
The
Constitutional Court, the Supreme Court of Appeal and the High Court
of South Africa each has the inherent power to protect
and regulate
their own process, and to develop the common law, taking into
account the interests of justice.’
[7]
Section
172(1) of the Constitution:
Powers
of courts in constitutional matters
When
deciding a constitutional matter within its power, a court-
(a) must
declare that any law or conduct that is inconsistent with the
Constitution is invalid to the extent of its inconsistency;
and
(b)
may make any order that is just and equitable, including-
(i)
an order limiting the retrospective effect of the declaration of
invalidity; and
(ii)
an order suspending the declaration of invalidity for any period and
on any conditions, to allow the competent authority
to correct the
defect.
See
too:
Asla, op cit, paras [67] and [71]
[8]
Pharmaceutical
Manufacturers Association of SA and Another: In Re ex Parte
President of the RSA and Others
[2000] ZACC 1
;
2000 (2) SA 674
(CC) at para 17;
Affordable Medicines Trust and Others v Minister of Health
2006 (3)
SA 347
(CC) at para [49].
[9]
Section
237 of the Constitution: ‘All constitutional obligations must
be performed diligently and without delay.’
[10]
Buffalo
City Metropolitan Municipality v Asla Construction (Pty) Ltd 2019
(4) SA 331 (CC).
[11]
In
Asla
four principles were described in paras [48] – [72]
(1)
There is a difference in assessing a case
under PAJA and under the principle of legality; this applies to
procedure and in a legality
review the court has a broader
discretion about delay than court has about condonation in a PAJA
review.
(2)
The reasonableness of the delay must be
assessed on the basis of the explanation offered. This is a fact
-specific enquiry married
to a value judgment as to whether it can
be inferred that the delay is ‘undue’.
(3)
Whether the delay can be overlooked; there
must be a factual basis for such a conclusion. This is a flexible
enquiry weighing
several factors:
a.
the potential prejudice to affected
parties,
b.
the nature of the impugned decision; ie ‘a
consideration of the merits of the legal challenge against the
decision
c.
the conduct of the applicant; eg was it
bona fide.
(4)
Even where delay has indeed been
unreasonable – the court may be required by section 172(1)(a)
of the Constitution to declare
the impugned decision unlawful where
its deficiencies are ‘clear and undisputed’.
[12]
ibid
paras
55
– 56 and 101
[13]
ibid
paras 66, 71.
[14]
ibid
paras 53 – 58.
[15]
ibid
para 54.
[16]
ibid
para 71.
[17]
A
cautionary criticism about un-insightful separations has been
described in
City
of Tshwane Metropolitan Council v Blair Atholl Homeowners
Association 2019 (3) SA 398 (SCA).
[18]
See:
Standard
Bank of SA v RTS Techniques and Painting (Pty) Ltd and Others
1992
(1) SA 432
(T
)
at 440 J – 441J, on the dynamics of the motion procedure in
which the functionality of the process to facilitate dispute

resolution is addressed.
[19]
See:
Standard
Bank of SA and Another v Mpongo
2021 (6) SA 403
(SCA
)
where a controversy is traversed about whether a court could
exercise a discretion to select what cases it might hear and which

it might decline to hear, based on several factors relating to the
capacity of the court when another court has concurrent

jurisdiction. The conclusion is reached that a court is not vested
with such a power and the rules of court must be adhered to.