About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2010
>>
[2010] ZAGPPHC 295
|
|
Nhluvuko Consulting Holding (Pty) Ltd v New Integrated Credit Solutions (Pty) Ltd (65243/09) [2010] ZAGPPHC 295 (18 January 2010)
IN THE HIGH COURT
OF SOUTH AFRICA
(NORTH GAUTENG
DIVISION)
CASE
NO.: 65243/09
DATE:
18 JANUARY 2010
In the matter
between
NHLUVUKO
CONSULTING HOLDING (PTY)
LTD
.......................................................................
Applicant
And
NEW INTEGRATED
CREDIT SOLUTIONS (PTY)
LTD
............................................................
Respondent
(Application for
leave to appeal) in re:
NEW INTEGRATED
CREDIT SOLUTIONS (PTY)
LTD
...............................................................
Applicant
And
MADIBENG LOCAL
MUNICIPALITY
..............................................................................
First
Respondent
NHLUVUKO
CONSULTING HOLDING (PTY)
LTD
.....................................................
Second
Respondent
CORAM: EBERSOHN
AJ
DATE HEARD 11th
December 2009
JUDGMENT HANDED
DOW N ON 19th January 2010
JUDGMENT
EBERSOHN AJ.
[1] For the sake of
convenience the panics arc referred to as in convention.
|2] An order was
granted in the main matter against, inter alia, the second respondent
by this court. The second respondent now
applies for leave to appeal
against the order.
[3) The following
arc the proposed grounds of appeal relied upon by the sccond
respondent:
"I. That the
Honourable Mister Justice Ebersohn erred in granting prayers 2. 4 and
6 of the notice of motion:
2. That the
Honourable Mister Justice Ebersohn erred in Finding that it was a
prerequisite for tenderers (in casu the Applicant)
to have been
registered as a debt collector in terms of the Debt Collectors Act,
Act 114 of 1998, when submitting the tender.
3. That the
Honourable Mister Justice Ebersohn erred in Finding that
Regulation
21(e)
of the
Municipal Supply Chain Management Regulations (as
published in the Government Gazette No. 27636: 30 May 20(15) which
states that disputes must be settled by means of mutual consultation,
mediation, or, when unsuccessful, in a South African court of law.
was not applicable and subsequently the First Respondent was
absconded(sic) from the provisions of Section 7(2)(a) of the
Promotion of Administrative Justice Act, Act 3 of 2000.
4. That the
Honourable Mister Justice Ebersohn erred in Finding that the First
Respondent complied with the provisions of R53 of
the Honourable
Court's Rules.
5. That the
Honourable Mister Justice Ebersohn erred in not ordering the First
Respondent to pa> the Applicant’s costs.
[5] AD FIRST
GROUND
This is not actually
a around of appeal and is not dealt with further in this judgment.
[6] AD SECOND
GROUND:
a) When the Debt
Collectors Act ("the Act") is read in its totality it is
clearly a prerequisite that to be able to collect
debts and to act as
a debt collector, one must first be registered either as an attorney,
after having been admitted by the High
Court as such, or be
registered as a debt collector in terms of section 9 of the Debt
Collectors Act. Act No. 114 of 1998("the
Act"), with the
Council for Debt Collectors. This is so because of the peremptory
wording of subsection 8(3)of the Act regarding
nullity of agreements
concluded between a debt collector and his client before of after the
said date, namely the 11th August 2003
(GN 24351 of 7 February
2()03). without having been registered as a debt collector or an
attorney (see in this regard subsection
25 which makes a
contravention of section 8 a criminal offence), and it is also clear
that nobody ma\ represent to somebody eise
or to the outside world
that one is either an attorney or a debt collector, if you arc not,
because that would be fraud.
b) It is clear that
when the tender was submitted the second respondent was noi
registered as a debt collector but falsely represented
to the first
respondent that it's was a valid tender due to (as phrased in the
right hand column on page 92 of the record where
a diagram appears of
particulars of all the tenderers prepared by the employees of the
first respondent) to "Registration
with law society or debt
collectors". The fraud was perpetrated by the representation by
the second respondent that it was
registered as such but in a highly
misleading manner by utilising, the name of a firm of attorneys. It
is clear that if the second
respondent was candid and did not mislead
the firs: respondent but disclosed that it was neither registered and
admitted as an
attorney nor registered as a debt collector, its bid
would have been thrown out and not considered.
c) After the tender
was awarded to the second respondent an "agreement" was
entered into between the first and sccond
respondents, in
contravention of the provisions of section 8. which was a criminal
act in terms of section 25 of the Act. and the
agreement was in any
case a nullity in terms of the provisions of section 8(3) of the Act
and the tender must have been regarded
by the first respondent as a
nullity and shouid have been rejected out of
[7] AD THIRD
GROUND.
a)
Regulation 21
of
the
Municipal Supply Chain Management Regulations (as
published in
the Government Gazette No. 27636: 30 May 2005) requires that the
supply chain management policy must determine the
criteria tc. which
hid documentation for a competitive bidding process must comply, and
must also state that in addition to
regulation 13
the bid
documentation must state that disputes must be senled by means of
mutual consultation, mediation, or. when unsuccessful,
in a South
African court of iaw. When one reads
regulation 21
in its totality,
it is clear that it deals with the operation of the tender after it
was awarded and the dispute resolution referred
to therein refers to
the municipality and the tenderer and clearly is not applicable to
third parties, like the applicant, who
is not contractual!} bound at
this stage to either the first or the second respondent and
regulation 21(e)
clearly is not applicable and in so far as it needs
referring to did not oust the jurisdiction of the High Court because
nowhere
in the act in terms of which the Regulations were proclaimed
is there provision that the jurisdiction of the High Court may be
ousted by regulation.
b) The provisions of
Section 7(2)(a) of the Promotion of Administrative Justice Act. Act 3
of 2000. therefore do not apply and in
so far as was necessary the
court dealt with the matter in terms of the Court's jurisdiction.
[18] AD FOURTH
GROUND
Sufficient
documentation was placed before the Court to enable the Court to deal
with the matter.
[9] AD FIFTH
GROUND
COSLS are in the
discretion of the Court and, the first respondent abiding in the
decision of the Court, there was no reason why
it should be ordered
to pay the costs and in any case the costs should follow the event
anc was awarded against the second respondent.
[10] There being no
reasonable prospects of success with any of the grounds reliec upon I
accordingly make the following order:
1 The-re-application
for leave to appeal is dismissed with costs.
EBERSOHN
ACTING JUDGE OF
THE HIGH COURT
Applicant's
counsel: Adv. J„G. VAN DEN BERG
Instructed
by: JONKER VORSTER INC
C\o JARVIS JACOBS
RAl BENHEIMER INC.
Ref. J. JACOBS
Respondent's
counsel Adv. M. SNYMAN
Instructed
In ALBERT HIBBERT A ITS.
Tel. 012- 343
0401/2