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[2021] ZAKZDHC 3
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Tansnat Durban (Pty) Ltd v Ethekwini Municipality and Others (D4178/2020) [2021] ZAKZDHC 3 (8 February 2021)
IN THE HIGH COURT OF
SOUTH AFRICA
KWAZULU-NATAL LOCAL
DIVISION, DURBAN
CASE NO: D4178/2020
In the matter between:
TANSNAT DURBAN (PTY)
LTD
Applicant
and
ETHEKWINI
MUNICIPALITY
First Respondent
THE KWAZULU-NATAL DEPARTMENT
OF
TRANSPORT
Second Respondent
MVIMBENI HOLDINGS (PTY)
LTD
Third Respondent
EMA LE RONA TRADING ENTERPRISE 69 (PTY) LTD
Fourth Respondent
UNITRANS PASSENGER (PTY)
LTD
Fifth Respondent
KZT COUNTRY CURISER (PTY)
LTD
Sixth Respondent
MARINPINE TRANSPORT (PTY)
LTD
Seventh Respondent
RIPPLE EFFECT 40
CC
Eighth Respondent
IKHWEZI BUS SERVICE (PTY)
LTD
Ninth Respondent
RSV TRUCK AND BUS
CC
Tenth Respondent
UTHUKELA TRANSPORT SERVICE (PTY) LTD
Eleventh Respondent
LETONN INTERNATIONAL (PTY)
LTD
Twelfth Respondent
O R D E R
The application for leave to appeal is dismissed.
JUDGEMENT IN APPLICATION FOR LEAVE TO APPEAL
HENRIQUES J
Introduction
[1]
This is an application for leave to appeal the order granted on 7
September 2020 dismissing
the applicant’s application for
certain declaratory relief. An e
x tempore
judgment was handed down and was amplified by the additional reasons
delivered electronically on 3 November 2020, in response to
the
request for reasons.
[2]
It is common cause that the applicant instituted the application
which forms the subject
matter of this application for leave to
appeal on 3 July 2020. The application was not opposed by any of the
respondents. The first
respondent however, filed an explanatory
affidavit setting out its position in relation to the relief sought
by the applicant and
its stance in relation to the interpretation of
the tender provisions.
[3]
Counsel for the first respondent held a watching brief at the
unopposed hearing, and
at the hearing of the application for leave to
appeal. Although no oral submissions were made by the first
respondent, its stance
was as contained in the explanatory affidavit.
Basis for the
application
[4]
In summary, the applicant submits as its basis for the application
for leave to appeal
that there is a reasonable prospect that another
court would come to a different conclusion and in addition, that
there is a compelling
reason why the matter should be referred to an
appeal court.
[1]
[5]
Although the applicant submitted that it seeks leave to appeal to the
full court of
this division, at the hearing of the application for
leave to appeal, Mr Harpur SC, who appeared for the applicant,
conceded that
given the nature of the issues for determination
specifically those relating to interpretation, it was perhaps
apposite for the
Supreme Court of Appeal to deal with the appeal in
the event of leave to appeal being granted.
[6]
Before addressing the grounds of appeal as amplified by the
supplementary grounds
of appeal, it is appropriate at this juncture
to deal with the applicable test in applications for leave to appeal.
The applicable test in an application for leave to appeal
[7]
Applications for leave to appeal are governed by ss 16 and 17 of the
Superior Courts
Act 10 of 2013 (‘the Act’). Section
17 provides
that
‘
Leave
to appeal may only be given where the judge or judges concerned are
of the opinion that-
(a)
(i) the appeal would have a reasonable prospect of
success; or
(ii) there is some
other compelling reason why the appeal should be heard, including
conflicting judgments on the matter
under consideration.’
[8]
The applicant has indicated in the notice of application for leave to
appeal that
the application is premised on the provisions of s
17(1)(
a
)(i) and (ii) of the Act. In paragraphs 4 and 3 on page
2 of the initial notice of application for leave to appeal, the
applicant
relied on the test as being ‘that another Court may
reasonably come to a different conclusion …’. The
references
in the footnote are to the decisions of
S v Rens
[2]
and
Zweni v Minister of Law and Order.
[3]
These decisions were prior to the enactment of the Act.
[9]
The test as suggested by the applicant, is no longer the one which
applies, and will be
dealt with hereinafter. Reasonable prospects of
success has previously been defined to mean that there is a
reasonable possibility
that another court may come to a different
decision.
[4]
In defining ‘reasonable prospects’, the courts often rely
on
S v Smith
[5]
where the court held the following:
‘What the test of reasonable prospects of success postulates is
a dispassionate decision, based on the facts and the law,
that a
court of appeal could reasonably arrive at a conclusion different to
that of the trial court. In order to succeed, therefore,
the
appellant must convince this court on proper grounds that he has
prospects of success on appeal and that prospects are not
remote, but
have a realistic chance of succeeding. More is required to be
established than that there is a mere possibility of
success, that
the case is arguable on appeal or that the case cannot be categorised
as hopeless. There must, in other words, be
a sound, rational basis
for the conclusion that there are prospects of success on appeal.’
(Footnote omitted.)
[10]
With the enactment of s 17 of the Act, the test has now obtained
statutory force and is to be
applied using the word ‘would’
in deciding whether to grant leave. In other words, the test is
‘would another
court come to a different decision’?
In the unreported decision of the
Mont
Chevaux Trust v Goosen
[6]
the Land Claims Court held, albeit obiter, that the wording of the
subsection raised the bar for the test that now has to be applied
to
any application for leave to appeal. In
Notshokovu
v S,
[7]
it was held that an applicant ‘faces a higher and stringent
threshold, in terms of the Act [when] compared to the provisions
of
the repealed Supreme Court Act 59 of 1959’.
[11]
In
Acting National Director of Public
Prosecutions & others v Democratic Alliance in re: Democratic
Alliance v Acting National
Director of Public Prosecutions &
others,
[8]
Ledwaba DJP, writing for the full court considered the test as
envisaged in s 17 of the Act. At para 25 of the aforementioned
judgment, he dealt with the test set out in the
Mont
Chevaux
Trust
case where Bertelsmann J held the
following:
‘
It
is clear that the threshold for granting leave to appeal against a
judgment of a High Court has been raised in the new Act.
The
former test whether leave to appeal should be granted was a
reasonable prospect that another court might come to a different
conclusion, see
Van
Heerden v Cronwright & Others
1985 (2) SA 342
(T) at 343H. The use of the word “
would
”
in the new statute indicates a measure of certainty that another
court will differ from the court whose judgment is sought
to be
appealed against.’
[12]
The reference in section 17(1)
(a)
(ii) does not contain an
exhaustive list of criteria and the authorities have held that each
application for leave to appeal must
be decided on its own set of
unique facts. An applicant for leave to appeal must, however, show
that there is a compelling reason
why the appeal should be heard.
[13]
Our courts, in considering what constitutes ‘other compelling
reasons’ have held
that the substantial importance of a case to
a party constitutes a compelling reason. Other compelling reasons
include the following,
namely, whether the decision appealed against
involves an important question of law, whether the administration of
justice requires
the appeal to be heard, and whether the matter is of
public importance as it will have an effect on future matters.
[9]
[14]
When considering an application for leave to appeal on the basis of
the existence of a compelling
reason, the court must have a strong
reason to grant leave to appeal on this basis, and a court must ‘give
careful and proper
consideration to the reason advanced before
categorising it as compelling. Section 17(1)
(a)
(ii) should
therefore not be invoked for flimsy reasons’.
[10]
[15]
In this specific instance, the court is enjoined to determine whether
another court
would
(my emphasis) come to a different
decision, alternatively if there is some other compelling reason for
leave to appeal to be granted.
Grounds of Appeal
[16]
The applicant’s grounds for leave to appeal were
comprehensively set out in the notice
of application for leave to
appeal filed on 9 September 2020 as amplified by supplementary
grounds of appeal filed on 19 November
2020. I propose for the sake
of convenience to use the headings as referred to by the applicant in
the respective grounds of appeal
for ease of reference.
The unopposed application
[17]
The application served on the unopposed motion court roll on 7
September 2020. The first respondent
delivered a notice to abide and
an explanatory affidavit as referred to in the introduction. The
explanatory affidavit dealt with
the basis upon which the first
respondent chose to abide by the decision of the court, but also
revealed the reasons why it could
not consent to the order and
required a determination to be made in relation to the crisp issue of
interpretation of the closing
time for the submission of the
expression of interest.
[18]
Whilst it is not a requirement that heads of argument are submitted
in unopposed applications,
the applicant’s counsel nevertheless
delivered concise heads of argument. These heads of argument
concisely encapsulated
the applicant’s contentions and the
applicable law relied upon by the applicant relating to the
interpretation of the deadline
for the submission of the expression
of interest document as stipulated in the first respondent’s
notice of extension.
[11]
It would be noted that whilst the applicant’s founding papers
referred to an agreement and the legal concept of estoppel
as
alternate grounds for the declaratory relief, no such reference was
made in the heads of argument.
[19]
In dismissing the application, an
ex tempore
judgment was
handed down after the court had the benefit of considering the review
application instituted by the applicant under
case no. D1710/2020.
The first respondent, whilst submitting no grounds of opposition, as
traditionally one would see in an answering
affidavit, its
explanatory affidavit expressed its views and interpretation of the
deadline for the submission of the expression
of interest document as
well as the extension of the date and time for lodging of the
expressions of interest.
[20]
In such explanatory affidavit, the first respondent indicated that
the extension of the closing
date was extended from 24 January 2020
to 28 February 2020 and such extension document was to be read as
forming part of the contract
documents (being the initial contract no
70-1171). As the court understands the first respondent’s
submissions, the extension
related only to the date for the delivery
of tender offers with the stipulated time of ‘at or before
11h00’ remaining
unaltered.
[21]
The applicant’s contention is contrary to the first
respondent’s submission in that
the applicant argues that on a
proper interpretation of the addendum,
[12]
it had until midnight on 28 February 2020 to lodge its tender
offer. This crisp issue of interpretation fell to be adjudicated
at
the hearing of the application. After consideration, the court was
unconvinced that the applicant had made out a case for the
declaratory relief it sought and dismissed the application.
[22]
Paragraph 8 of the application for leave to appeal contains an
extract from the first respondent’s
explanatory affidavit
albeit not the complete extract of what was submitted by the first
respondent. Paragraph 14 in its entirety
reads as follows:
‘The First Respondent did not, and does not, deliberately seek
to prevent the Applicant from lodging the response. Indeed,
it may
well be beneficial to the First Respondent’s ratepayers if the
response is taken into consideration when adjudicating
the responses
submitted by all interested parties.’
[23]
The context for such submission, is to be found in paragraph 15 of
the first respondent’s
explanatory affidavit in which the
following is stated:
‘On the other hand, the First Respondent believes that it may
not simply agree to accept the Applicant’s response for
the
following reason: If it does not and the Applicant’s contention
that it had until midnight to submit its response is
subsequently
held to be correct, then the First Respondent, by accepting the
response after 11h00, may have prejudiced the interests
of other
parties who submitted responses timeously. These other parties are
the named Third Respondents in this matter’.
The Judgment
[24]
As previously mentioned, the applicant’s heads of argument
focused on the failure by the
first respondent to specify a time in
respect of the extended date for the submission of the expression of
interest. It did not,
in any way, deal with any of the alternate two
grounds advanced in the founding affidavit.
[25]
The applicant’s heads of argument focused primarily on the
interpretation of the addendum
relating to the time by which the
applicant was obliged to submit its tender offer. The applicant’s
argument was that the
absence of a specified time in such document
meant that the civil method of interpretation had to apply, hence by
extension of
the applicant’s argument, the applicant had until
midnight on 28 February 2020 to submit its expression of interest. In
support
of such contention, the applicant relied on the dictum in
Dormell Properties 282 CC v Renasa Insurance Co Ltd and
another,
[13]
which the court considered together with related authorities prior to
delivering its judgment.
[26]
At the hearing of the application for leave to appeal, it was raised
with counsel for the applicant
whether the applicant intended
pursuing certain grounds of appeal relating to the allegations of
irregularity which it submitted
existed and the violation of the
applicant’s constitutional rights to a fair hearing.
[27]
The court further enquired whether the applicant had obtained a
transcript of the proceedings
to support its submissions of an
irregularity. Counsel for the applicant responded that neither the
applicant nor its legal representatives
saw the need to obtain such
transcript. The court had however obtained a transcript of the
hearing and made same available to applicant’s
legal
representatives for consideration.
[28]
The matter stood down to afford the applicant’s legal
representatives an opportunity to
consider the transcript and make
submissions thereon. The applicant’s counsel submitted that the
applicant persisted with
its submissions that the court did not give
it a fair hearing and more importantly did not engage with its
counsel in relation
to the difficulties which the court had nor did
it provide detailed reasons for dismissing the application.
[29]
The transcript being a full record of the proceedings reads as
follows:
‘
Mr Harpur:
‘May it please my Lady, I appear for the applicant in this
matter. My Lady the municipality
is represented here by a watching
brief by my learned friend here, sitting next to me. I understand
that my Lady was sent the concise
heads of argument together with the
draft order prayed. I don’t think I wish to add anything to the
concise heads my Lady,
I submit that the papers make out a case and I
ask for the relief set out in the draft order prayed.’
Court:
‘Sorry you are here as a watching brief?
Mr Mlaba:
It is Mlaba C.
Court:
Yes, and you are not here to make any submissions?
Mr Mlaba:
‘No my Lady, we have submitted an explanatory affidavit.
Court:
An explanatory affidavit?
Mr Mlaba:
Yes M’ Lady
Court:
And what is contained in there is the municipality’s
view and
as I understand it?
Mr Mlaba:
Exactly M’Lady. And the only issue that was between the parties
was the
question of costs, which we have agreed upon that there shall
be no order as to costs.
Court:
Okay. Sorry, Sorry Mr Harpur. So as I understand
the position, the
municipality’s view is as contained in the explanatory
affidavit, you are not here to offer any assistance
to the court
apart from a watching brief that you hold today?
Mr Mlaba:
Yes.
Court:
‘Okay Thank you. Mr Harpur why do you
say that the silence of
the time, in that – well, as I understand the position, you are
saying that because of that email
from Mhlongo, which only extended
the date and not the time you had until midnight, is that the
position?’
Mr Harpur:
‘That is correct, my Lady.’
Court:
‘Can you assist me with that, that email
that was sent by Mr
Mhlongo, where do I find that in these papers.’
Mr Harpur:
‘My Lady, if I can look in the index. This is the one that
extended the time
to …..’
Court:
‘Extended the date
Mr Harpur:
But did not specify a time on that.
Court:
‘The date, yes’.
Mr Harpur:
Yes. Sorry M’ Lady, I was looking at – there is the
extension of the
closing date……
Court:
‘That is the one on page 78, is that right,
where it extends
the closing date, ‘SN2.?
Mr Harpur:
‘I was looking at page 80, my Lady, which according to the
index is the extension,
notice of the extension of the closing
date.’
Court
:
‘That’s 81.’
Harpur:
‘Yes um
Court:
okay’.
Mr Harpur:
Yes, that is at 81, “This addendum is to be read as forming
part of the contract
document and serves to inform you the closing
date of the tender has been extended to 28 February 2020.’ I
think that was
the initial extension.
Court:
‘No. That is the subsequent extension’.
Mr Harpur:
Oh, that is a subsequent one… yes that is correct my Lady. So
there was no
time stipulated, so the common law is that if there is
no time stipulated on a date stipulated then the time runs until
midnight
on that date
And then the tender was made around 11h45am on that
date and the
municipal official was under the impression that the time period was
11h00 am and that is why she refused to accept
it’
Court:
‘This is an application for a declaratory
order as set out in
paras 1 (a), (b), (c) and
(d)
of the notice of motion which
appears at indexed pages 1 and 2. The first respondent has elected
not to oppose the application
and has served and filed a notice to
abide together with an explanatory affidavit. Its view in relation to
the closing time and
date for the extension is set out in the
explanatory affidavit. Essentially the tender document, made
provision for the expression
of interest to be submitted on/before
Friday, 24 January 2020 at or before 11h00 o clock. It appears that
there was an exchange
of correspondence between the applicant’s
attorney of record and the legal and compliance officer of the first
respondent
who then responded at page 78 of the papers dealing with
inter alia
the review application which is not the subject
matter of the application which serves before me but in terms of
which, it is recorded
that in light of the undertaking, the closing
date for the submission of bids was extended to 28 February 2020. The
document is
silent in relation to the time. An addendum, which
appears at page 81 of the indexed papers makes provision for the
addendum to
form part of the contract documents and also makes
provision for the closing date to be extended to 28 February 2020.
Similarly
nothing is said about the time. I have considered the
application papers placed before me, together with the explanatory
affidavit,
as well as the heads of argument submitted by the
applicant. I am not satisfied that the applicant is entitled to
the relief
that it seeks and consequently, the application is
dismissed.’
[30]
It is evident that counsel for the applicant was invited to make
submissions, and indeed did
so.
The transcript does not
support the allegations that the court did not engage with counsel.
On the contrary, the court raised a
query with applicant’s
counsel after he indicated that he had nothing further to add to the
heads of argument. Notwithstanding
this election, the court engaged
applicant’s counsel regarding the issue of the time for
submission of the expression of
interest document.
[31]
In line with the practice of this division and other divisions,
ex
tempore
judgments are often delivered in both unopposed and
opposed applications. In such instances, it is common practice that
the reasons
will be provided on written request of any party
alternatively, the reasons will be provided by the court on its own
accord.
[32]
Notwithstanding the lack of formal opposition, the narrow issue was
restricted to a determination
of the document relating to the
extension of the deadline for tender offers and specifically the time
for such submissions. The
law relating to the applicability of the
civilian method of calculation is settled. Confronted with the issue
of interpretation,
the court either accepted the interpretation
advanced by the applicant or declined it. On this premise, further
engagement with
counsel for the applicant was unnecessary.
[33]
Practitioners are or ought to be
au fait
with the principal
that the functions of courts and judicial officers are not restricted
to rubber stamping orders in unopposed
applications. It does not
axiomatically follow that in the absence of opposition, the granting
of an order will be a foregone conclusion.
[34]
It frequently occurs, especially in motion court proceedings, that
unopposed applications are
granted or dismissed in instances where
the papers do not make out a case. The discretion of a judicial
officer to afford a party
the opportunity to supplement its papers,
is dependent on the merits of each matter, and in my view, was not an
appropriate order
in this matter, regard being had to the crisp issue
to be determined.
[35]
The applicant’s contention that the grant of the order seemed
to be a foregone conclusion,
coupled with its contentions of
suffering a fundamental injustice, is by any standard baseless. The
record patently reflects the
court’s engagement with both the
applicant’s and the first respondent’s counsel.
[36]
At the hearing, counsel for the applicant was at liberty and not
constrained by the court to
make such submissions as he deemed fit,
however elected to confine the applicant’s submissions to that
contained in the concise
heads of argument. To suggest
ex post
facto
that the grant of the judgment was a violation of its
fundamental and constitutional rights can only be deemed to be the
expressions
of a disgruntled litigant and inconsistent with the
election of its legal representative.
[14]
Reasons
for the judgment and the lack of reasons
[37]
In my view, and as contemplated by Uniform Rule 49(1)
(c)
, it
was inherently unnecessary to indicate that further reasons would be
provided in light of the fact that an
ex tempore
judgment was
delivered. In such judgment, the court’s finding that the
contract documents stipulated the time for the delivery
of the
expression of interest document and the addendum simply extended the
date for such delivery. The addendum formed part of
the contract
documents and had to be read in conjunction therewith.
[38]
Post the handing down of the judgment on 7 September 2020, the
applicant as it is entitled, requested
reasons for the judgment and
same were duly furnished. The court delivered an
ex tempore
judgment indicating that it was not satisfied that the applicant
had made out a case for the relief sought
.
In dismissing the
application, the court had the benefit of considering the submissions
of the applicant’s counsel, reading
the application papers and
authorities referred to, coupled with reference to the review
application papers. In my view, it was
neither reasonable, nor
necessary for the court to contemporaneously indicate that full
reasons for the order would be provided
as brief reasons were placed
on record at the time of the hearing.
[39]
It is common practice in this division, which all practitioners are
undoubtedly aware of, that
a party may request reasons for a judgment
(supplementary or additional) and judicial officers are obliged to
positively respond
to such a request. The applicant’s
supposition regarding its uncertainty as to whether reasons for the
judgment would be
furnished, belies the common practice in this
division and in any event such submissions were rendered moot by the
furnishing of
additional reasons pursuant to the applicant’s
request.
[40]
The applicant’s complaint relating to the lack of reasons is
substantially without merit
and the applicant’s right to pursue
the application for leave to appeal was not in any manner prejudiced.
Specific grounds of
appeal
[41]
To avoid repetition and the further prolixity of this judgment, it is
in my considered view,
not necessary to deal with the specific
grounds of appeal raised by the applicant previously dealt with in
this judgment.
[42]
The court, in the exercise of its judicial functions afforded the
applicant a fair and reasonable
opportunity to present is
submissions. As previously alluded to, the court harboured no issues,
queries or difficulties in determining
the application, hence, no
probative value could be achieved in raising them with the
applicant’s counsel.
[43]
It warrants mentioning that the applicant’s counsel did not
invite the court to raise any
queries or difficulties that it may
have had. The applicant’s focus on the lack of opposition and
the misconception that
the first respondent’s explanatory
affidavit was supportive of its application, is misguided and
ill-conceived in my view.
As previously stated in this judgment, the
first respondent whilst abiding, did not consent to the relief sought
by the applicant,
but rather deferred to the court the determination
of the extended date and closing time for tender offers to be
submitted.
[44]
As already indicated, the court provided written reasons and in any
event, there can be no prejudice
to the applicant and nor can it be
said that the court committed a grave lapse of duty or that it
breached the applicant’s
rights as additional written reasons
were provided. In addition, on receipt of the reasons, the applicant
was given an opportunity
to supplement the grounds of appeal in the
application for leave to appeal, which it duly did.
The deadline: 11:00
[45]
The applicant indicates that its expression of interest was lodged,
however acceptance thereof
was refused by the municipal official. It
is common cause that the applicant’s expression of interest was
lodged outside
of the stipulated time. All the other tenderers
understood the extension, as contained in the addendum, to apply to
the closing
date, extending such date from 24 January 2020 to 28
February 2020, with the time remaining the same being 11h00.
[46]
The applicant’s submission in paragraph 35(f) of the grounds of
appeal is accordingly incorrect.
The addendum, on any interpretation,
extended only the closing date and was silent on the time, which time
was stipulated in the
original tender document. In addition the
addendum specifically stated that it was to be read as forming part
of the contract documents
hence the contract documents and its
requirements remained unchanged save for the closing date.
[47]
It was submitted on behalf of the applicant that 11h00 was capable of
two meanings: 11 o’clock
in the morning or 11 o’clock at
night, albeit that the applicant’s case was not premised on
such interpretation. Such
submission is neither persuasive nor
rational. Irrespective of the use of digital time or analogue time,
11h00 giving it its ordinary
and businesslike meaning, must refer to
11 o’clock in the morning. Had the first respondent intended to
refer to 11 o’clock
at night, it would have stipulated 23h00.
[48]
From a practical perspective, it could never have been the intention
nor stipulation of the first
respondent that the time deadline was to
be outside of business hours. There would be no access to the tender
box, no personnel
to empty the box at 11 o’ clock at night nor
midnight or to ensure that expressions of interest filed
outside the time
deadline will not be slipped into the box.
[49]
The applicant persisted with its contention that the time deadline
was midnight as premised in
its founding papers and heads of
argument. The applicant cannot attempt to interpret what the first
respondent intended, and as
already indicated by the first
respondent, this was a task for the court to do. In addition, it is
disingenuous of the applicant,
in one breath, to attempt to interpret
or place an interpretation on what the intention of the first
respondent was, in order to
support its interpretation, to enable it
to obtain the order. Although the first respondent does not dispute
what the normal common
law position is, it leaves the interpretation
contended for by the applicant, correctly so in my view, in the hands
of the court.
[50]
The applicant, cannot in its founding affidavit, contend for a
particular interpretation and
in the alternative, allege an agreement
concluded between itself and the first respondent. In any event, the
fact that the first
respondent indicated that it was its intention
that the time of 11h00am would stand, disavows any express or implied
agreement
being concluded between the parties.
[51]
The first respondent’s purported failure to respond to the
applicant’s suggestion
of an agreement does not, in my view,
translate to acquiescence or the conclusion of an agreement. Although
the applicant may not
have understood the mental reservation, it
appears that other applicants did understand that the extension of
the date had no bearing
on the set time contained in the contract
documents. This is evident from the fact that other parties, like the
third to twelfth
respondents, knew and did in fact file the
expressions of interest timeously by 11h00am on 28 February 2020.
[52]
In its initial grounds of appeal, the applicant indicated that it
relied on the common law principle
that in the absence of a
stipulated time in the addendum, the deadline would be at midnight.
In the alternative, the applicant
asserted the conclusion of an
agreement and further in the alternative that the applicability of
the principles of estoppel should
apply against the first respondent.
However, during the course of the argument, at the hearing of the
application for leave to
appeal, Mr Harpur submitted that the press
release (the addendum) superseded and replaced the contract document,
and consequently
the applicant was entitled to accept that no time
period was stipulated in the addendum.
[53]
Such issue was raised for the very first time at the application for
leave to appeal and was
never raised in the initial founding
affidavit or at the hearing of the application. The applicant’s
counsel was requested
to refer the court to the specific paragraphs
in the applicant’s founding affidavit to support this
assertion. In response,
it was submitted that the founding affidavit
must be considered holistically and counsel proceeded to read the
entire founding
affidavit into the record. Such conduct was neither
helpful nor of any assistance in clarifying the court’s enquiry
which
reinforced the court’s finding that the applicant’s
assertion of supersession was never the applicant’s case from
inception.
[54]
The explanatory affidavit of the first respondent set out its stance
and its interpretation and
what it intended by granting such
extension. This would have formed part of the overall factual basis
which the court would have
considered in determining whether the
applicant’s interpretation was correct. The first respondent
did not accept that the
applicant’s expression of interest had
been lodged on 28 February 2020.
[55]
On the applicant’s own version, when it attempted to do so on
that Friday at 11h45 am,
it was not accepted as the municipal
officials informed the applicant that the closing time was 11h00am
and the applicant had tendered
the expression of interest after the
closing time at 11h45 am. It is not correct that it lodged its
expression of interest in the
time frame allowed; at best for the
applicant it attempted to do so after 11h00am.
[56]
This is borne out by paragraphs 11 of the explanatory affidavit
[15]
which records the following:
‘
The
Applicant, on 28 February 2020, lodged with the relevant
Municipality’s representatives its response to the requested
for expressions of interest. However, it did so after 11h00 hours.
Those officials, believing that such responses had to be submitted
before 11h00 hours, declined to accept the same’.
and
paragraphs 97 and 98 of the founding affidavit which reads as
follows:
‘
Michelle
Pearton advised me, in my response to whether I could deliver the
tender document at that point in time, namely approximately
11:45am
on 28 February 2020, that this would not be possible as the tender
box was physically closed at 11h00AM and that all the
tender
documents in the tender box were physically cleared out of the box by
employees of the municipality.
It was accordingly impossible to
deliver the expression of interest on 28 February 2020 although I
tendered to do so, and but for
the refusal by Michelle Pearton and
the advice that the tender box was already closed, I would have
delivered the expression of
interest from Tansnat timeously on 28
February 2020.’
It is common
cause that the applicant failed to timeously deliver its expression
of interest document on or before 28 February 2020
at or before
11h00.
[57]
The interpretation which the court arrived at relating to the
addendum and contract documents, and the reasons
for such
interpretation, have been comprehensively dealt with in the
additional written reasons.
[58]
The argument advanced that estoppel is applicable is in my view
incorrect. The basis for the
applicant’s contention was in the
further alternative and was premised on the basis that the first
respondent was estopped
from asserting that the time limit was
11h00am on 28 February 2020. The reliance on this further alternative
remedy had to be dependent
on the court’s interpretation of
whether or not the absence of a stipulated time in the addendum,
meant that no time was
stipulated and that the civil method of
computation of time applied. The applicant alleged it had been agreed
between only the
applicant and the first respondent
‘
that
the time limit for the delivery of Tansnat’s expression of
interest was extended until 28 February 2020 without any express
time
stipulation on that date by which the expression of interest
should be delivered.
’
[16]
Such
contention cannot be sustained as the addendum contained the specific
requirement that it was to be read as part of the contract
documents.
[59]
In order for estoppel to apply, this court would have to find that an
agreement was concluded
between the applicant and the first
respondent, and further to agree with the applicant’s
interpretation relating to the
time deadline. There is nothing to
support or premise this finding upon and pertinently, such finding
would have the effect of
excluding all other interested parties and
compromising their rights. It would have the effect of giving an
unfair advantage to
the applicant and prejudicing other applicants,
the very event the first respondent was concerned about and indicated
it could
not do in its explanatory affidavit.
[60]
This court’s finding that the applicant’s interpretation
of the time deadline is
neither tenable nor sustainable renders the
reliance on estoppel nugatory and of no assistance to the applicant.
In relation to
the submissions that estoppel is applicable on the
basis that the first respondent had been negligent, this was once
again not
an argument advanced at the hearing of the unopposed
application.
[61]
Acknowledgment is found in the applicant’s grounds of appeal at
paragraph (r) which reads
as follows:
‘
It
has accordingly left this decision for the Court whilst at the same
time offering no active opposition to it’.
Supplementary
grounds of appeal
[62]
In relation to the supplementary grounds of appeal
that were filed, the court reaffirms the reasons contained
in the
additional written reasons filed on 3 November 2020. The applicant’s
repeated reference to the events that transpired
before Van Zyl J or
the findings by that court is of no significance to the judgment of
this court. The applicant has not deemed
it necessary nor appropriate
to file a transcript of the argument, nor the
ex
tempore
judgment of Van Zyl J; hence
this court is not in a position to advance any comments in respect
thereof.
[63]
The applicant makes submissions in relation to the closing time which
were not dealt with in
the initial affidavit and in the application
which served before me. It was never the applicant’s contention
that the time
of 11h00 was ambiguous or uncertain. Its contentions
related to the fact that no time was stipulated. It cannot now, at
this stage,
offer alternative submissions and make new submissions in
relation to the interpretation based on the additional reasons filed.
[64]
The tender documents relied on for the submission of expression of
interest is annexed to the original application
papers. Page 39
refers to annexure “C”, page 40 refers to annexure “D”,
although headed “Procurement
Document”, appears to be the
first page of the tender document. Pages 41 to 70 appear to be the
entire tender document. Part
“E” of the document, on
indexed page 42, which has been referred to in the judgment, sets out
the date and time for
submission of the expression of interest.
[65]
It clearly refers to the closing date of Friday, 24 January 2020 at
or before 11h00. Page 39
referred to in paragraph 5 of the
supplementary grounds of appeal is annexure “C” to the
tender document. This document
sets out the contract title and sets
out where the tender documents are available from and to whom
enquiries can be made. It also
sets out how the expressions of
interest will be weighted, considered, evaluated and also that there
will not be a clarification
meeting. Page 44, which is page 4 of the
actual tender document, falls under the title “The submission
Procedures and Submission
Data”. It makes reference to the
closing time and closing date. The applicant selectively refers to
the document in isolated
parts and not as a holistic document to
advance submissions favourable to its contention regarding the
stipulated time period or
lack thereof in the addendum. Such
selective references do not assist in arriving at a judicial
evaluation of the reasonable meaning
and interpretation of the
contract document and addendum.
[66]
The supplementary grounds of appeal raises further
submissions which were not advanced at the hearing nor
contained in
the applicant’s founding papers. By way of illustration: the
applicant seems to suggest that the time was at
best ambiguous and at
worse meaningless. Further it was suggested that the expression of
interest, by failure to mention the time,
entitled the applicant to
deliver its expression of interest during normal business hours, that
is until 16h30. These contentions
were never previously advanced or
submitted to the court to consider prior to the delivery of the
judgment.
[17]
[67]
Even in the event that the court is obliged to consider such ‘new
submissions and arguments’,
I remain unmoved that such
additional submissions can shift the scales in favour of the
applicant. At any level, the applicant
on its founding papers, and
with due consideration to the additional submissions, has failed to
advance a sustainable case.
[68]
For the reasons submitted in support of the judgment, these
supplementary submissions do not
assist the applicant’s case.
Conclusion
[69]
Having considered the various grounds of appeal and the detailed
application for leave to appeal,
I remain unconvinced that the
applicant has met the tests set out in s 17, namely that there are
reasonable prospects of success
alternatively that there are
compelling reasons to grant leave to appeal.
[70]
I am also mindful of the fact that in deciding whether to grant leave
to appeal the court must
take cognisance of the higher threshold that
needs to be met before leave to appeal is granted. There must be more
than a mere
possibility that an appeal court will find differently on
both the facts and the law.
[71]
As elucidated to in the reasons for judgment, the issues subject to
determination bear no novelty
as a point of law and the authorities
in relation to the issue for consideration are clear and unequivocal.
[72]
In the result, I am not satisfied that the applicant has made out a
case that warrants the granting
of the application for leave to
appeal as there are no reasonable prospects that another court would
come to a different conclusion
nor that other compelling reason/s
exists for the appeal to be heard.
Order
[73] The application for
leave to appeal is dismissed.
HENRIQUES J
Case Information
Date of Hearing
: 11
December 2020
Date of hearing of the
original application
:
7
September 2020
Request for reasons filed
:
9
September 2020
Application for leave to
appeal filed with the
Registrar
: 9 September
2020
Date request for reasons
received
: 30
September 2020
Additional reasons
Delivered
: 3
November 2020
Supplementary grounds
of appeal filed
: 19
November 2020
Appearances
Counsel for the Applicant
: Mr G.
D. Harpur SC
Instructed by
Applicant’s Attorneys
:
Norton
Rose Fulbright SA Inc.
3 Pencarrow Crescent,
Pencarrow Park
La Lucia Ridge, 4051
Tel: 031 582 5642
Fax: 031 582 5742
Email:
sandile.khoza@nortonrose.fulbright.com
Ref: TAN22/SSK
Counsel for the First
Respondents
: Mr C
Mlaba
Instructed by
First Respondents
Attorneys:
Venns Attorneys
Suite 12
Lakeside Building
Derby Downs Office Park
University Road
Westville, 3631
Email:
hiresen@venns.co.za
shaaista@venns.co.za
Ref: H Govender/Amisha/4319
Second Respondents Attorneys:
State Attorney, KwaZulu-Natal
6
th
Floor
Metropolitan Life Building
391 Anton Lembede Street
Durban, 4001
Ref: 24/002979/20/T/P33/N.NOGWEBELA/CET
Email:
NNogwebela@justice.gov.za
Tel: 031 365 2511
Fax: 031 306 2440
Third to Twelfth Respondents:
No opposition
This judgment was handed
down electronically by circulation to the parties’
representatives via email and release to SAFLII.
The date and time
for hand down is deemed to be 09h30 on 8 February
2021.
[1]
Paragraph 3 of the applicant’s application for leave to
appeal.
[2]
S v Rens
1996 (1) SA 1218 (CC).
[3]
Zweni v Minister of Law and Order
1993 (1) SA 523 (A).
[4]
Van Heerden v Cronwright & others
1985 (2) SA 342
(T) at
343I.
[5]
S v Smith
2012 (1) SACR 567
(SCA) at paragraph 7.
[6]
Mont Chevaux Trust v Goosen
2014
JDR 2325 (LCC).
[7]
Notshokovu v S
[2016]
ZASCA 112
para 2.
[8]
Acting National Director of Public
Prosecutions & others v Democratic Alliance in re: Democratic
Alliance v Acting National
Director of Public Prosecutions &
others
[2016] ZAGPPHC 489.
[9]
Minister of Justice and Constitutional Development & others v
Southern Africa Litigation Centre & others
2016 (3) SA 317
(SCA) at 330 A-C,
Zuma v Democratic Alliance & others
2018
(1) SA 200
(SCA) at 227D-G.
[10]
School Governing Body Grey College, Bloemfontein v Scheepers &
others (South African Teachers Union Intervening)
[2019] JOL
41823
(FB) para 6.
[11]
Annexed hereto as “A” are the heads of argument and
draft order prayed.
[12]
Pages 80 to 82 of the applicant’s founding papers.
[13]
Dormell Properties 282 CC v Renasa Insurance Company Ltd and
another
[2010] ZASCA; 2011
(1) SA 70 (SCA).
[14]
Saloojee & another NNO v Minister of Community Development
1965 (2) SA 135
(A) at 141E.
[15]
Indexed page 181.
[16]
Paragraph 62 of founding affidavit, indexed page 20.
[17]
Shraga v Chalk
1994 (3) SA 145
(N) at 150G-151E;
RAS and
others NNO v Van Der Meulen and another
2011 (4) SA 17
(SCA)
para 16.