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[2023] ZAGPJHC 268
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Mombeeg (Pty) Ltd v Eskom Rotek Industries SOC Ltd (2021/15418) [2023] ZAGPJHC 268 (27 March 2023)
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
CASE NUMBER:
2021/15418
NOT REPORTABLE
NOT OF INTEREST TO OTHER JUDGES
NOT REVISED
In
the matter between:
MOMBEEG
(PTY) LIMITED
APPLICANT
AND
ESKOM
ROTEK INDUSTRIES SOC LIMITED
RESPONDENT
JUDGMENT: LEAVE TO APEAL
Delivered:
This judgment
was handed down electronically by circulation to the parties’
legal representatives by e-mail. The date and
time for hand-down is
deemed to be 10h00 on the 27
th
of March 2023.
DIPPENAAR J
:
[1] For ease of reference, the parties
will be referred to as in the main application proceedings. The
applicant applies for leave
to appeal against the whole of the
judgment and order granted by me on 15 December 2022. In terms of the
order, I dismissed the
applicants’ review application for
together with a punitive costs order. The respondent seeks the
dismissal of the application
with costs.
[2] The application for leave to
appeal was launched on 24 January 2023. As the correct procedures
were not followed, the application
only came to my notice during
March 2023 whereafter a date for hearing was allocated.
[3]
I have
considered the papers filed of record and the grounds set out in the
application for leave to appeal as well as the parties’
extensive arguments for and against the granting of leave to appeal.
I have further considered the submissions made and
the
authorities referred to by the respective parties.
[4]
In its application for leave to
appeal, the applicant raised various grounds for leave to appeal in
support of the contention that
there
are reasonable prospects of success that another court would grant a
different order as envisaged by s 17(1)(a)(i) of the
Superior Courts
Act
[1]
.
It is further contended that it is in the interests of justice to
grant leave to appeal as envisaged in s 17(1)(a)(ii) of the
Act on
the ground that this court did not apply the principles in
Pangbourne
Properties Ltd v Pulse Moving CC and Another
[2]
and
Anglo
Operations Ltd v Sandhurst Estates (Pty) Ltd
[3]
,
that
there was no need for an application for condonation in the absence
of prejudice.
[5]
The
grounds for leave to appeal advanced is that the court erred in
ruling that an application for condonation was required, absent
allegations of prejudice or the utilisation of r 30 to set aside
irregular proceedings. The applicant contends that in those
circumstances,
no condonation application was required. (“the
condonation issue”).
[6]
It
was further contended that insofar as this court held that the
applicant’s
“
new case
“
had
no prospects of success, the applicant’s case, albeit contrary
to its previous case, was not pleaded as an alternative
and the
applicant abandoned its first case, resulting in there not being any
mutually destructive versions on the pleadings
”
.
It was contended that the applicant’s
new case was premised upon the correct asserted conclusions from the
facts emanating
after delivery of the record. (“the new case
issue”).
[7]
It
was argued that whether or not a contract was awarded was correctly
found to be a factual dispute and that, as requested at the
outset of
the hearing, the matter ought to have been referred to oral evidence
or trial, rather than being dismissed (“the
referral issue”).
[8]
It was further
contended that this court erred in distinguishing
Invectiva
Power Minerals (Pty) Ltd and Another v Eskom Holdings SOC Ltd and
Another
[4]
.
Lastly,
it was further contended that this court erred in awarding a punitive
costs order against the applicant in circumstances
where the
respondent had not even filed any answering papers to the applicant’s
latest subsequent affidavit pursuant to the
notice in terms of r
53(4) (“the punitive costs issue”).
[9]
Leave to appeal may
only be granted where a court is of the opinion that the appeal would
have a reasonable prospect of success,
which prospects are not too
remote
[5]
.
An applicant for leave to appeal faces a higher threshold
[6]
than under the
repealed Supreme Court Act.
[7]
A sound rational
basis for the conclusion that there are prospects of success must be
shown to exist
[8]
.
[10]
The
referral issue is dispositive of the application. On considering the
record of the hearing of the main application, it became
apparent
that I made an error in paragraph 2 of the judgment in stating that
neither party sought the referral of the application
to oral
evidence. The applicant had in fact, after I raised certain issues
with the parties and the matter stood down so that the
parties could
obtain instructions, orally sought a referral to oral evidence from
the bar.
[11]
Such
referral was opposed by the respondent, who referred to it as a
belated and opportunistic request, made only after the court
raised
certain issues with the parties. The respondent pointed out that it
had raised the existence of factual disputes in its
heads of argument
delivered on 25 February 2022 already and the applicant had not
sought to seek a referral until the matter stood
down for the parties
to take instructions on the hearing date. To avoid a piecemeal
determination of the matter, the application
was fully argued by the
parties and judgment was reserved.
[12]
In
applying the relevant principles to the grounds advanced by the
applicant, I conclude that the appeal would have a reasonable
prospect of success as contemplated in s17(1)(a)(i) of the Act, given
that my judgment did not deal with the arguments advanced
by the
parties on the referral issue and contained a patent error.
[13]
Given
this conclusion, it is not necessary to deal with the remaining
grounds raised, which are best left for the appeal court
to
determine.
[14]
I
grant the following order:
[1] Leave to appeal is granted to the
Full Court.
[2] The costs of the application for
leave to appeal are to be costs in the appeal.
EF DIPPENAAR
JUDGE OF THE HIGH COURT
JOHANNESBURG
APPEARANCES
DATE
OF HEARING
:
23 March 2023
DATE
OF JUDGMENT
:
27 March 2023
APPLICANT’S
COUNSEL
:
Adv. H.P. Van Nieuwenhuizen
:
Adv NS Nxumalo
APPLICANT’S
ATTORNEYS
:
Tshabalala Attorneys, Notaries &Conveyancers
: Mr TR Tshabalala
RESPONDENT’S
COUNSEL
:
Adv. PL Uys
RESPONDENT’S
ATTORNEYS
:Gildenhuys
Malatji Inc.
: Mr
R Venter
[1]
10 of 2013
[2]
2013 (3) SA 140 (GSJ)
[3]
2007 (2) SA 363
(SCA) para [32]
[4]
(16202/19) [2020] ZAGPPHC 180 (25 May 2020)
[5]
Ramakatsa and Others v African National Congress and Another
[2021]
JOL 49993
(SCA) para [10]
[6]
S v Notshokovu 2016 JDR 1647 (SCA) para [2]
[7]
59 of 1959
[8]
Smith v S
[2011] ZASCA 15
; MEC for Health, Eastern Cape v Mkhitha
[2016] ZASCA 176
, para [17]