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[2023] ZAKZPHC 5
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Archiways Skye (PTY) Ltd v South African National Roads Agency (5302/2021P) [2023] ZAKZPHC 5 (26 January 2023)
IN THE HIGH COURT OF
SOUTH AFRICA
KWAZULU-NATL DIVISION,
PIETERMARITZBURG
CASE NUMBER:
5302/2021P
In the matter between:
ARCHIWAYS SKYE (PTY)
LTD
APPLICANT
And
THE SOUTH AFRICAN
NATIONAL ROADS AGENCY
RESPONDENT
SOC LIMITED
CAMRY TRADING
ENTERPRISES (PTY) LTD
THIRD PARTY
JUDGMENT ON
APPLICATION FOR LEAVE TO APPEAL
BEZUIDENHOUT
J
:
[1]
Applicant has brought an application for leave to appeal against the
whole of the
judgment in the above matter. Heads of argument were
filed by Respondent and the Third Part but a letter was received from
Applicant
that it would not be filing heads of argument as its
grounds of appeal fully set out the reasons for the application. On
the day
of the hearing it presented notes to Respondent’s heads
of argument.
[2]
At the commencement of the hearing Mr. Harpur SC on behalf of
Applicant informed the
Court that the decision of Premier Free State
and Others v Firechem Free State (Pty) Ltd
2000 (4) SA 413
(SCA) has
come to his attention and applying the judgment therein it is clear
that the wrong contract was relied upon, it cannot
be ignored and
only the tender document should be considered. It was therefore
submitted that the wrong contract was at all times
referred to by
Respondent and accordingly also in the judgment and on that basis
alone leave to appeal should be granted.
[3]
The test in deciding to grant leave to appeal or not is set out in
section 17(1) of
the Superior Courts Act can be summarised as that
there are reasonable prospects of success or some compelling reason
for it to
be heard or conflicting judgments. In this matter the test
is whether there would be reasonable prospects on appeal. Caracto
(Pty)
Ltd v Independent Advisory (Pty)
2020 (5) SA 35
(SCA), Smith v
S
2012 (1) SACR 567
(SCA).
[4]
The prospects must not be remote but a reasonable chance of
succeeding: Can a court
of appeal reasonably arrive at a different
conclusion? Ramakatsa & Others v African National Congress &
Another (2021)
ZSCA 31.
[5]
In the Firechem judgment no draft contract accompanied the tender
documents. It was
set out therein that a contract had to be drawn up
between the parties. A contract will then at a later stage be signed
after the
tender had been awarded. This was due to the fact that
Firechem had previously negotiated with the province to supply it
with cleaning
materials but it was then decided that there had to be
a tender before any contract could be given to Firechem. There were
accordingly
no precise terms which were fixed in the letter of
acceptance. It was held therein that the requirement was that the
offers made
must be comparable with each other. The import of the
tender must not be tucked away. In this case it was a fixed quantity
contract
and if it was known other tenders may have been submitted.
[6]
In my view the portions of the tender document which was deleted in
the lease agreement
which was signed by Applicant as appears from
pages 55 to 92 of annexure “DM2” do not affect the
material portions
of the said contract. The subject matter of the
tender did not change. Clause 3 which was deleted refers to the
occupation date
and taking occupation of the premises. In my view
therefore and for the reasons which follow I am of the view that the
decision
in Firechem does not assist Applicant.
[7]
The main portion which Applicant critisises is the deletion of
paragraph 3 of the
lease agreement. This relates to when rental is
payable if occupation could not be given. As set out in the judgment
even if this
was not deleted it would not assist Applicant as vacant
possession of the property was given to Applicant for the reasons as
set
out in the judgment especially considering the judgment in the
Tudor Hotels case.
[8]
It was submitted by Applicant that I relied on 24 March 2020 as the
commencement date
of the lease. What was found as set out in
paragraph 33 of the judgment was that the petroleum license was
granted on 24 March
2020 and rental payable from that date if
Respondents version is accepted.
[9]
The further submissions set out in the application for leave to
appeal and grounds
to appeal has been dealt with in detail in my
judgment and I am of the view that it does not require any further
expansion.
[10]
Having considered the submissions made by all the parties I am not
convinced that there are reasonable
prospects of another court coming
to a different conclusion in this matter.
Order:
The application for leave
to appeal is refused with costs such costs, to include the costs of
senior counsel where applicable.
P C BEZUIDENHOUT J.
Date
reserved:
2 December 2022
Date
delivered:
26 January 2023
For applicant:
Mr Harpur SC
Instructed
by:
De Villiers, Evans & Petit Attorneys
REF: Mr C
Petit/oj/01R029015
Tel: 031 207 1515
Email: cpetit@dep.co.za
c/o Stowel & Co
REF: P Firmin/ Zelda
For respondent:
Mr K Gounden
Instructed by:
VENNS ATTORNEYS
REF: M H
Motala/TH/13226738
Tel: 033 355 3100/3131
Email:
mohammed@venns.co.za / trene@venns.co.za
For third party:
Mr Dickson SC
Instructed by: Mason
Incorporated
REF: 015/C005/0000001
Tel: 033 345 4230 /
0726639397
Email: rob@masoninc.co.za