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[2023] ZAECMKHC 1
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Tekoa Engineers (Pty) Ltd v Alfred Nzo Municipality and Others (1284/2021) [2023] ZAECMKHC 1; [2023] 2 All SA 279 (ECG) (17 January 2023)
IN THE HIGH COURT OF
SOUTH AFRICA
[EASTERN
CAPE DIVISION: MAKHANDA]
CASE NO. 1284/2021
In
the matter between:
TEKOA
ENGINEERS (PTY)
LTD
Applicant
and
ALFRED
NZO MUNICIPALITY
1
st
Respondent
THE MUNICIPALITY
MANAGER: ALFRED NZO DISTRICT
MUNICIPALITY
2
nd
Respondent
ZINZAME CONSULTING
ENGINEERS/CYCLE
PROJECTS/UBUNTU
BAM JV
3
rd
Respondent
EMLANJENI
JV
4
th
Respondent
OLON CONSULTING
ENGINEERS JV
IMP
PLANT
HIRE
5
th
Respondent
BM
INFRASTRUCTURE JV MAGNACORP
6
th
Respondent
JUDGMENT
JOLWANA J:
Introduction.
[1]
Applicant sought and obtained an order declaring unlawful and setting
aside the second respondent’s decision to award
a tender and to
appoint the third, fourth, fifth and sixth respondents (the
successful tenderers) to the panel of service providers
in accordance
with the said tender. Applicant was also granted an order declaring
unlawful and setting aside first respondent’s
decision to
disqualify the bid submitted by applicant. Other ancillary relief
that hinged on the applicant obtaining the above
main relief were
also granted. Applicant now seeks, in these proceedings, an order for
the execution of the said judgment or orders
pending any appeal
processes that may still be underway.
Background.
[2]
On 14 June 2022 this Court, per Laing J, delivered a judgment,
inter
alia
, reviewing and setting aside as
unlawful, the tender process followed by the first respondent in its
evaluation, adjudication and
award of a tender for the planning,
design and construction of water services infrastructure in the
Alfred Nzo District Municipality.
The declaration of invalidity
was suspended for a period of 30 days to allow for the completion of
the projects that were near
completion. On 30 June 2022 the
successful tenderers lodged an application for leave to appeal.
On 05 July 2022 first
and second respondents (the municipal
respondents) also lodged an application for leave to appeal. On 31
August 2022 the said applications
for leave to appeal were heard and
judgment was delivered on 6 September 2022 dismissing them. On
5 October 2022 first respondent
and on 06 October 2022 the successful
tenderers filed applications for special leave to appeal at the
Supreme Court of Appeal.
[3]
On 7 October 2022 applicant launched these proceedings on an urgent
basis seeking an order for the immediate execution of the
judgment or
orders in the main application in terms of section 18 of the Superior
Courts Act 10 of 2013 (the
Superior Courts Act) pending
the appeal
processes. The urgent application was heard on 19 October 2022
and in a comprehensive judgment delivered on 25
October 2022 dealing
only with the issue of urgency, this Court, per Lowe J, struck the
urgent application from the roll.
On 31 October 2022 applicant
made written representations to the office of the Judge President for
this matter to be allocated
a date on the opposed roll on a
preferential basis. The matter was subsequently enrolled for
hearing on 11 November 2022
and it served before me in the opposed
motion court. The municipal respondents, in their heads of argument
and during the hearing
of this application raised pertinently, the
issue of the matter being allocated a preferential hearing date.
Counsel for
the successful tenderers also made submissions on this
issue, and urged the court to also deal with it as it is a matter of
concern
to them. I will revert to this issue later in this judgment.
The
legislative framework.
[4]
Section 18
makes provisions for what must prevail when an application
for leave to appeal is lodged. It further provides for the
application
for an execution order by the successful party in the
event of the decision of the court being the subject of an
application for
leave to appeal or of an appeal.
Section 18
reads:
“
18.
(1) subject to subsections (2) and (3) and unless the court under
exceptional circumstances orders otherwise, the operation
and
execution of a decision which is the subject of an application for
leave to appeal or of an appeal, is suspended pending the
decision of
the application or appeal.
(2)
Subject to subsection (3), unless the court under exceptional
circumstances orders otherwise, the operation and execution of
a
decision that is an interlocutory order not having the effect of a
final judgment, which is the subject of an application for
leave to
appeal or of an appeal, is not suspended pending the decision of the
application or appeal.
(3)
A court may only order otherwise as contemplated in subjection (1) or
(2), if the party who applied to the court to order otherwise,
in
addition proves on a balance of probabilities that he or she will
suffer irreparable harm if the court does not so order and
that the
other party will not suffer irreparable harm if the court so orders.
(4)
If a court orders otherwise, as contemplated in subsection (1) –
(i)
the court must immediately record its
reasons for doing so;
(ii)
the aggrieved party has an automatic right
of appeal to the next highest court;
(iii)
the court hearing such an appeal must deal
with it as a matter of extreme urgency; and
(iv)
such order will be automatically suspended,
pending the outcome of such appeal.
(5)
For the purposes of subsections (1) and (2), a decision becomes the
subject of an application for leave to appeal or of an appeal,
as
soon as an application for leave to appeal or a notice of appeal is
lodged with the registrar in terms of the rules.”
[5]
The main application, not being of an interlocutory nature,
subsection (2) finds no application. It is only to the
requirements
of
section 18
(1) and (3) that the issues pertinent to
this application must be determined.
The
issues
[6]
Briefly, the issues are whether applicant has established exceptional
circumstances for the granting of the execution order.
Furthermore, applicant must prove that it will suffer irreparable
harm if the order is not granted and further prove that respondents
will not suffer irreparable harm by the granting of the execution
order. These are the three jurisdictional requirements
that
applicant must establish for it to obtain the relief sought.
[7]
The leading authority on the
section 18
applications is
Incubeta
[1]
in which the legal position was discussed and crystalized for the
first time following the passing into law of the
Superior Courts
Act. The
court summarised the requirements provided for in
section 18
as follows:
“
It
seems to me that there is indeed a new dimension introduced to the
test by the provisions of
Section 18.
The test is two fold; the
requirements are:
First,
whether or not exceptional circumstances exist, and
Second, proof on a
balance of probabilities by the applicant of –
The
presence of irreparable harm to the applicant/victor, who wants to
put into operation and execute the order, and,
The
absence of irreparable harm to the respondent/loser who seeks leave
to appeal.”
Discussion.
[8]
The exceptional circumstances cited by the applicant in its founding
affidavit are the following. There is a declaration
of the
invalidity of the award of the tender to and the appointment of the
successful tenderers. The 30 day period of the
suspension of
the invalidity which was granted by the court has lapsed.
Therefore, the successful tenderers no longer have
any authority,
power or legal standing to continue with the works. Applicant
also raises the fact that the appointment of
the successful tenderers
was for a fixed term period of three years which comes to an end on
31 August 2023. Therefore, unless
the execution order sought is
granted, the main judgment in terms of which their appointment was
set aside will become academic
after that expiry date.
[9]
Effectively, so contends applicant, without the execution order being
granted pending the appeal processes, the successful tenderers
will
continue with the works to finality as if there never was a
declaration of invalidity. Therefore, despite the injunction
by
the court that after the expiry of the 30 day period allowed for the
completion of the projects that were near completion, the
successful
tenderers will continue with the works and finalise even the projects
that were not near completion thus rendering the
declaration of
invalidity of no moment. The result of all of this will be that
the successful tenderers will receive undue
benefits from continuing
with the works despite the court having ordered them to stop.
The failure of the successful tenderers
in their appeal would be
meaningless. The converse also holds true in that the success
of the applicant in the appeal processes
will become futile. On
the basis of these averments, it was argued that applicant has
established exceptionality as provided
for in
section 18(1).
Has applicant
established exceptional circumstances?
[10]
The term, “exceptional circumstances” has received
considerable attention by courts even long before the
Superior Courts
Act was
enacted. In
Ntlemeza
[2]
,
Navsa JA explained the meaning of the term “exceptional
circumstances” as follows:
“
As
to what would constitute exceptional circumstances, the court, in
Incubeta
,
looked for guidance to an earlier decision (on admiralty law), namely
MV Ais Mamas: Seatrans Maritime v
Owners, MV Ais Mamas, and Another
2002
(6) SA 150
(C), where it was recognised that it was not possible to
attempt to lay down precise rules as to what circumstances are to be
regarded
as exceptional and that each case had to be decided on its
own facts. However, at 156H ̶ 157C, the court said
the following:
‘
What
does emerge from an examination of the authorities, however, seems to
be the following:
1.
What is ordinarily contemplated by the
words “exceptional circumstances” is something out of the
ordinary and of an
unusual nature, something which is excepted in the
sense that the general rule does not apply to it; something uncommon,
rare or
different; “besonder”, “seldsaam”,
“uitsonderlik”, or “in hoé mate ongewoon”.
2.
To be exceptional the circumstances
concerned must arise out of, or be incidental to, the particular
case.
3.
Whether or not exceptional circumstances
exist is not a decision which depends upon the exercise of a judicial
discretion: their
existence or otherwise is a matter of fact which
the Court must decide accordingly.
4.
Depending on the context in which it is
used, the word “exceptional” has two shades of meaning:
the primary is unusual
or different; the secondary meaning is
markedly unusual or especially different.
5.
Where, in a statute, it is directed that a
fixed rule shall be departed from only under exceptional
circumstances, effect will,
generally speaking, best be given to the
intention of the Legislature by applying a strict rather than a
liberal meaning to the
phrase, and by carefully examining any
circumstances relied on as allegedly being exceptional’.”
[11]
Applicant accepts the above legal position which is therefore common
ground and in fact does not contend that there is a less
exacting
meaning to the phrase “exceptional circumstances”. The
question is, as it must therefore be, whether
applicant has met the
rather high threshold set by the Legislature in
section 18
for the
granting of the execution order it seeks.
[12]
What applicant contends as being exceptional circumstances amounts to
no more than this. There is a judgment in terms
of which the
awarding of the tender to and the subsequent appointment of the
successful tenderers were declared unlawful.
The successful
tenderers, in those circumstances, continuing with the works is by
and of itself an exceptional circumstance.
This is because the
contract will run out while the appeal processes are ongoing and
render moot any success by it on appeal. In
that way the whole
judgment that declared unlawful, the awarding of the tender as being
non-compliant with
section 217
of the Constitution will be defeated
and therefore the contravention of section 217 of the Constitution
will have been condoned.
Those are, in a nutshell, applicant’s
contentions an exceptionality.
[13]
Mr Beyleveld who appeared for the municipal respondents argued that
this postulation, if accepted, means that in all cases
in which an
administrative action has been reviewed and set aside as being
unlawful ̶ by virtue of that declaration
of
invalidity, exceptionality is established. He pointed out that
there are many cases some of which arise out of contractual
relationships whose contracts are time bound which are brought before
courts on review all the time. In all of them, the
time the
appeal process will take can never be guessed with any degree of
exactitude. What is also known generally, is that
appeal
processes do take time to be finalized. What the submissions of
the applicant on exceptionality amount to is that
in all cases that
are time bound whose contracts have been reviewed and set aside, an
applicant for an execution order need do
no more than allege that the
contract might expire by effluxion of time before the appeal
processes are finalised. On this
basis an execution order must
be granted. This submission is not without merit, as I explain
below.
[14]
The starting point must be the intention of the Legislature as can be
ascertained from the language used in section 18.
If the
Legislature had considered a declaration of invalidity of a contract
or the setting aside of a tender and an appointment
made as a sequel
to the award are, per se, an exceptional circumstance for purposes of
preventing constitutional deviance or correcting
constitutional
non-compliance, it seems to me that the Legislature would have said
so. Instead of saying so, the Legislature
went to the opposite
direction by making its intentions clear in making the rule that
appeal processes have an effect of suspending
the orders appealed
against and that fixed rule can only be departed from under
exceptional circumstances. In making this
law, the Legislature
has made no exception, save for interlocutory applications provided
for in section 18(2). It did not
create a special dispensation
for cases in which a court finds that there were constitutional
contraventions. Any attempt,
through interpretation, to deviate
from this clear intention of the Legislature would, in my view, be no
less than the courts,
deliberately undermining the clear intention of
the Legislature under the pretext of preventing constitutional
deviance.
That would not be interpretation but an impermissible
subversion of the clear intention of the Legislature. That
would amount
to courts extending the boundaries of their authority at
the expense of the Legislature which would be unconstitutional, the
exact
opposite of constitutional compliance. Courts also have a
duty to lead by example by being careful not to exceed the boundaries
of their authority by showing deference to the law making authority
of the Legislature.
[15]
The principles of statutory interpretation in general, have been set
out and explained by our courts at various times.
It sometimes
becomes necessary to restate them, trite as they may be. In
Komani
School
[3]
the underlying principles of statutory interpretation and in
particular, the courts respecting the boundaries of their own
authority,
were restated by Petse AP very recently as follows:
“…
[I]ts
approach is not what s 60 (1) countenances. The provision is
specially designed to come to the rescue of someone who
asserts a
delictual or contractual claim for damage or loss. There is no
good reason to extend the operation of section 60(1)
beyond its
natural ambit. To do so would be crossing the divide between
statutory interpretation and legislating. The
clear and
unequivocal language employed in s60 (1) cannot be ignored for as
Kentridge AJ aptly put it in
S v Zuma
and Others
: ‘[I]f the language
used by the lawgiver is ignored in favour of a general resort to
“values” the result is not
interpretation but
divination.’
Although
these remarks were made in a different context, the Constitutional
Court subsequently stated in
Kubyana
that they apply even more forcefully in relation to statutory
interpretation generally.’ Accordingly, the reliance
by
Komani Stationers on Mostert NO is misplaced as that case turned on
its facts which are materially distinguishable from the
facts of the
present matter.”
[16]
It must be emphasized that the section 18 requirements are not
subject to the discretion of the court. They must be
established on the basis of a factual enquiry that must be
conducted. In
University
of the Free State
[4]
the Supreme Court of Appeal explained this position as follows:
“
Whether
or not ‘exceptional circumstances’ for the purposes of s
18(1) are present, must necessary depend on the peculiar
facts of
each case. In
Incubeta Holdings
at para 22 Sutherland J put it as follows:
‘
Necessarily,
in my view, exceptionality must be fact-specific. The
circumstances which are or may be “exceptional”
must be
derived from the actual predicaments in which the given litigants
find themselves.’
I
agree. Furthermore, I think, in evaluating the circumstances
relied upon by an applicant, a court should bear in mind that
what is
sought is an extraordinary deviation from the norm, which, in turn,
requires the existence of truly exceptional circumstances
to justify
the deviation.”
[17]
On the facts of this matter it is self-evident that applicant has
failed to prove, on a balance of probabilities, the existence
of
exceptional circumstances, as would justify a departure from the
general rule that pending the appeal processes, the judgment
or order
issued remains suspended. I am of the view that this conclusion
is, on its own, sufficient for the dismissal of
this application.
This is so because the very scheme of section 18 is such that for
applicant to succeed, it is required
to establish all the three
requirements, as against establishing one or some of them. That
notwithstanding, I consider it
important to examine if, in any event,
applicant has established the other two requirements.
Irreparable
harm.
[18]
I turn now to deal with whether applicant has established the
requirements of irreparable harm to itself if the order is not
granted and conversely, that no irreparable harm will befall the
respondents if the execution order is granted. In its founding
affidavit, applicant relies, for the most part, on the main judgment
and the orders contained therein. In that regard reference
is
made to the projects that are not near completion and an amount
estimated to be about one hundred million rand that is apparently
yet
to be expended. It is further submitted that the orders sought
to be enforced will fall away, and the successful tenderers
will
finalise the entire project, unless the execution order is granted.
In the result the orders that were granted to protect
what it calls,
“
the interests of the applicant
”
will come to nought. This may result in the appeal itself being
dismissed on the basis that it will have no practical
effect.
The result of all of this, it was argued, will be that applicant
might not even have an opportunity to argue against
the appeal as the
projects will all have been completed by then.
[19]
A further averment is made that if the works are allowed to continue,
there will be no possible re-advertisement of the project,
re-application by the applicant and a re-adjudication of the tender
in respect of the now still uncompleted projects as the whole
project
will have been completed. In the final analysis, all the
declaratory orders that invalidated the award of the tender
to the
successful tenderers will become irrelevant. Therefore, the judgment
will become unenforceable and applicant’s victory
in the main
application, inconsequential. It seems to me that what
applicant has set out as irreparable harm is, in addition
to it just
being the same submissions that were made on exceptionality, appears
to be founded on a number of speculative hypothetical
postulations.
What applicant avoids or fails to deal with is to be more precise
about the harm that it will suffer if the
execution order is not
granted. After all, the harm that must be assessed is, in the
first instance, actual harm to itself.
[20]
Mr Tshikila who appeared for the successful tenderers made some
telling submissions which are very apt in relation to the issues
in
this matter. His submissions were that in the main judgment the
court did not award the tender to applicant. Therefore,
no
right accrued to applicant which might be irreparably harmed.
Furthermore, even if the respondents do not succeed in their
appeal,
the effect of their loss will be that the municipal respondents will
have to decide if and whether they should take a decision
to
re-advertise the tender. Only if they do, will applicant be
entitled, like all other qualifying service providers, to
submit a
tender for evaluation and adjudication. Even if that does
happen, applicant will be entitled to no more than an
opportunity to
participate in the tendering process which extends to all interested
bidders. If this submission is correct,
the question is, what
is it that applicant will lose as its opportunity to participate in a
future tendering process will not be
threatened should a decision to
re-advertise the tender be made if the respondents’ appeals
fail.
[21]
On its own showing, it is clear that there is no irreparable harm to
be suffered by applicant as there is no entitlement or
right that has
accrued to it as a result of the judgment and the orders that are the
subject of the appeal that is not available
to any other qualifying
service providers. This is because even if it obtains the
execution order and goes on to succeed
on appeal, none of that will
entitle it to the award of the tender. Therefore, no real
prejudice or irreparable harm will
befall it if the order is not
executed. It must be emphasized that what was required of the
applicant was proof on a balance
of probabilities that it
specifically, will be irreparably harmed by the non-execution of the
order or judgment. Its right
to participate in any future
tendering process is not threatened. I am of the view that the
completion of the whole project
and therefore the loss of an
opportunity to participate in a future tendering process, whose
outcomes are not guaranteed cannot
be equated to an irreparable harm
as it will not be automatically entitled to be awarded the tender on
its success on appeal.
The situation would be somewhat
different if the court that determined the main application had
awarded the tender to applicant,
which was not the case. The
effect of the main judgment is no more than providing a
spes
to applicant as explained above, with
an uncertain outcome. Applicant’s contentions on
irreparable harm to itself are
clearly unsustainable.
[22]
Applicant was also required in terms of section 18(3) to prove that
respondents will not suffer irreparable harm. I think
that as a
general proposition, it is fair to make the observation that,
generally speaking, it can be difficult to prove irreparable
harm to
the other party. It is not unimaginable that an applicant might
not know the nature or extent of the irreparable
harm that a
particular respondent might suffer. This would be due to the
fact that the inner workings of one entity may not
be easy to fathom
by another entity from the outside. I can go as far as to say,
without deciding the point, that once an
applicant proves the first
two requirements, its performance or ability to prove the third
requirement, that is, absence of irreparable
harm to a respondent
should be assessed less stringently. If an applicant fails to
prove the first and second requirements,
its inability to prove the
third requirement should become less material as, by then, the horse
will have bolted. This is
because all the requirements must be
proved for it to succeed and be granted an execution order.
[23]
However, in this case applicant has not even made a decent attempt in
its founding affidavit to establish the absence of irreparable
harm
to any of the respondents. When the founding affidavit was
drawn, it must have been very clear to the drafters thereof
that they
were simply unable to provide any facts to prove that the respondents
would not suffer irreparable harm. This is
in part demonstrable
from the fact that in no more than two paragraphs on this
jurisdictional requirement, applicant merely states
the fact that if
the respondents succeed in appealing against the main judgment, their
rights will not become moot. Contradictorily,
and even
confusingly, applicant avers that the only way to secure the rights
of the respondents in the appeal is to grant the execution
order.
I do not understand how the granting of the execution order can
conceivably be regarded as proof that the respondents
will not suffer
irreparable harm.
[24]
The respondents, as a matter of law, have a right to appeal the
judgment and they have elected to do so. What applicant
must
prove is that the execution order it seeks will not harm the
respondents, if it is granted. In other words, it must
prove
that in addition to the irreparable harm, not just harm, it will
suffer if the order is not granted, respondents will not
suffer
irreparable harm by the granting of the execution order.
Applicant’s submissions in this regard go against the
very
purpose of section 18(3). This, it does without challenging its
constitutionality. It is incorrect for a litigant
to make a
postulation that is contrary to the clear language of a statutory
provision and the purpose of that statutory provision,
without
challenging its constitutionality.
[25]
The municipal respondents have submitted that if the project is
halted because of the execution order, they will suffer irreparable
harm in that they might lose the funding they got for the project
from the Department of Water and Sanitation. Most importantly,
the citizens who are obviously in dire need of this very important
life sustaining essential which is clean running water, will
continue
to be denied access to clean running water. This, only so as to
protect the applicant’s financial interests
in a possible,
hopefully positive outcome of a future tendering process. The
work already done in respect of the projects
that are not near
completion might be vandalized in the interim. Applicant has
failed to prove on a balance of probabilities
that respondents will
not suffer irreparable harm. The exposure of the incomplete
infrastructure to vandalism in respect
of the projects that are not
near completion is certainly a definite potentially irreparable harm
and therefore, potential loss
of limited public resources as a
result. These are, in a nutshell, the submissions made on
behalf of the municipal respondents.
[26]
Some of the contentions of the successful tenderers are that they
will suffer irreparable harm if the order is granted.
They
refer to the effect of the granting of the execution order, which
will be that the contract awarded to them will finally be
terminated. Thereafter, the tender will have to be
re-advertised if they lose the appeal and the whole bidding process
which
normally takes a very long time will have to start afresh.
This process may not be finalised within the remaining period for
which the funding was allocated. This will cause them
irreparable harm. Even if the respondents ultimately succeed
on
appeal, that success will be meaningless should the funding be no
longer available. In any event, the period for the contract
will have expired. It certainly cannot be said that the
successful tenderers will not suffer irreparable harm in these
scenarios.
One clearly discernible irreparable harm is that
they will have lost the contract in terms of which they have been
appointed.
Even if they ultimately succeed on appeal, they will
have lost whatever benefits of their contract are for providing the
services.
In contradistinction to applicant, it seems to me
that there is real potentially irreparable harm to the successful
tenderers.
[27]
The irreparable harm that may be suffered by the respondents,
especially the municipal respondents, must be assessed not
exclusively
of what such respondents may themselves suffer.
That they are, after all, there and exist for the sole purpose of
delivering
services to the public is a very weighty consideration. So
too is the importance of the protection of the fiscus from a clearly
possible exposure to financial losses. That is also because the
fiscus is basically tax payers’ money and therefore
its
exposure to loss is a very significant consideration especially due
to foreseeable possible vandalism. Over and above
all of that,
the effect of the granting of the execution order will be that the
intended beneficiaries of the project, the communities,
will have to
wait for many more years for access to clean running water. The
provision of clean running water is for the
benefit of the public and
that is a very weighty consideration. The relevance and
importance of what is for the general public
benefit as a weighty
consideration was aptly explained as followed in
Allpay
[5]
:
“
Once
a finding of invalidity under PAJA review grounds is made, the
affected decision or conduct must be declared unlawful and a
just and
equitable order must be made. It is at this stage that the
possible inevitability of a similar outcome, if the decision
is
retaken, may be one of the factors that will have to be considered.
Any contract that flows from the constitutional and
statutory
framework is concluded not on the state entity’s behalf, but on
the public’s behalf. The interests
of those most closely
associated with the benefits of that contract must be given due
weight. Here it will be the imperative
interests of grant
beneficiaries and particularly child grant recepients in an
uninterrupted grant system that will play a major
role. The
rights or expectations of an unsuccessful bidder will have to be
assessed in that context.”
[28]
The interests of an unsuccessful bidder such as applicant are
important as well and in an appropriate case they must be protected.
However, such rights or interests must necessarily recede into the
background and give way to the interests of the beneficiaries
of the
project in an appropriate case. The implementation of this
project is part of the government’s fulfilment of
its
constitutional obligation to work towards the progressive realisation
of the people’s socio economic rights provided
for in the
Constitution. Over and above government trying to
meet its constitutional obligation through this
project, the citizens
of Alfred Ndzo District Municipality, can for the first time since
the advent of democracy 28 years or so
ago, see in the horizon, the
delivery of water to them becoming a reality. All of their
hopes for clean running water will
be dashed by the granting of the
order sought by applicant. This is not a small issue for the
communities who currently share
drinking water with livestock and are
often at risk of getting infectious diseases due to unhygienic living
conditions. This
is a case in which the applicant’s
rights, even if they were there, must give way to the rights and
expectations of the communities
as the ultimate beneficiaries of this
project.
[29]
After the decision of the court in
Incubeta
[6]
the first case to come before the Supreme Court of Appeal was
University
of the Free State
[7]
in which
Incubeta
was quoted with approval. The court therein expressed itself
authoritatively as follows on section 18 (1) and (3):
“
It
is further apparent that the requirements introduced by s 18 (1) and
(3) are more onerous than those of the common law.
Apart from
the requirement of ‘exceptional circumstances’ in s
18(1), s 18 (3) requires the applicant ‘in addition’
to
prove on a balance of probabilities that he or she ‘will’
suffer irreparable harm if the order is not made, and
that the other
party ‘will not’ suffer irreparable harm if the order is
made. The application of rule 49 (1)
required a weighing-up of
the potentiality of irreparable harm or prejudice being sustained by
the respective parties and where
there was a potentiality of harm or
prejudice to both of the parties, a weighing up of the balance of
hardship or convenience,
as the case may be, was required.
Section 18 (3), however, has introduced a higher threshold, namely
proof on a balance of
probabilities that the applicant will suffer
irreparable harm if the order is not granted and conversely that the
respondent will
not, if the order is granted.”
[30]
In my view, applicant has failed, on the facts of this matter, to
establish exceptional circumstances justifying a departure
from what
is essentially the norm. It has further failed to prove on a
balance of probabilities that it will suffer irreparable
harm if the
execution order is not granted. The language employed in
section 18 (3) indicates that the irreparable harm that
it will
suffer must be very real, a certainty and not just a possibility.
The same applies to the requirement that the respondents
will not
suffer irreparable harm. That is, in my view, clear from the use of
the words, “will” and “will not”
in section
18 (3) as it refers to both the applicant and the respondents
respectively. I have arrived at the inevitable conclusion
that
applicant must therefore fail in its application for the granting of
the execution order.
The
preferential hearing date.
[31] This brings me to
the last issue I alluded to at the beginning of this judgment,
relating to applicant’s request for
a preferential hearing date
in the opposed roll. As indicated elsewhere in this judgment,
this matter was struck off the
roll consequent upon the court having
determined that it did not warrant being dealt with on the basis of
urgency. In his
judgment, Lowe J went into a detailed factual
analysis and a careful discourse dedicated to the issue of urgency
which he then
wrapped up as follows:
“
In
my view accordingly and having regard to all of the above, this is a
matter which simply cannot proceed on the urgency time line
adopted
by applicant as a result of both self-created urgencies adverted to
above and quite separately from that, the unreasonable
and
unnecessary stringent and unsustainable time line adopted.
…
It
is worth saying that this entire issue surrounding the urgency
difficulty and set down dates could have been avoided had the
parties
sought that their matter be dealt with by way of caseflow management
by the Judge President or his nominee as to procedure
and dates of
hearing. In this regard and whilst not completely on all fours,
the matter of
Bobotyana
is relevant.
If
applicant is to proceed with the matter and having regard to the
order I intend to give, it must do so in the manner and procedure
required by law and in addition thereto engage the case flow
management process by way of the Judge President or his nominee.”
[32]
It is clear that first, the court found the urgency to have been
self-created. Second, the court found that even putting
aside
the issue of the self-created urgency, applicant adopted unreasonable
and unnecessarily stringent and unsustainable time
lines in the time
table it set. The matter, having been struck off the roll, in a
ten-page letter dated 28 October 2022 date
stamped by registrar on 31
October 2022, applicant made representations to the office of the
Judge President. In the main,
the representations are no more
than further submissions on urgency or a regurgitation of the
submissions on urgency which had
already been made in court and which
were considered and given short shrift by the court. The matter
was, however, allocated
a date of hearing on the opposed roll in
about two weeks after it had been struck off the roll.
[33]
I consider it important to start by highlighting the fact that
section 18(5) provides for when a matter becomes subject of
an
application for leave to appeal or of an appeal as this matter is
consequent upon the respondents pursuing their appeals.
It
reads:
“
For
the purposes of subsections (1) and (2), a decision becomes the
subject of an application for leave to appeal or of an appeal,
as
soon as
an application for leave to
appeal or a notice of appeal is lodged with the registrar in terms of
the rules.”
(my emphasis)
[34]
In light of this provision and in the context of applicant having
pleaded for the allocation of a preferential hearing date,
it is
important to once again make reference to what the court hearing the
urgent application in this matter said elsewhere in
its judgment,
once again, on the issue of urgency. The court said:
“
50.
As conceded by applicant’s counsel, and correctly so, of course
it is plain that this application could have been brought
at any time
after the initial application for leave to appeal was filed in
respect of the judgment of Laing J dated 13 June 2022.
Certainly, having regard to applicant’s fears, it could
appropriately have been brought both before and certainly at the
time
of or soon after the 30 day period lapsed expiring on 15 July 2022.
The applicant would not have been faulted for bringing
that
application at any time up to 6 September 2022 when the application
for leave was dismissed.”
This
is the context in which applicant’s decision to apply for a
preferential hearing date must be understood. This
is the
context in which, as I understood them, respondents have difficulties
with applicant having been allocated a date so soon
after this matter
was struck off the roll.
[35]
Respondents take issue with the fact that instead of the matter
joining the other cases that are awaiting dates in the opposed
roll
for possible hearing some time later in the normal course, the matter
has been allocated a date of hearing in the opposed
roll soon after
it was struck off the roll on 25 October 2022. It was submitted
that the net effect of the directive for
the matter to be heard on 11
November 2022 was that that directive overruled the judgment and
order that struck it off the roll
through an administrative process.
It was argued that the directive amounted to a reversal of such
judgment and order.
It was further submitted that it is
inappropriate for a matter, having been considered by the court and
accordingly struck off
the roll and a judgment or order having been
issued in that regard, that there be an administrative process
effectively reversing
the judgment.
[36]
It was submitted on behalf of applicant that the court that heard the
urgent application indicated that if applicant wanted
to proceed with
the matter it may engage the caseflow management process through the
office of the Judge President. Attorneys
for applicant indeed
approached the office of the Judge President and made written
representations for the allocation of a preferential
hearing date.
It was consequent upon such representations that the matter was given
a preferential hearing date on the opposed
roll which was the 11
November 2022. In essence, applicant relies on the caseflow
management process for the fact that it
was allocated a date that was
within two weeks or so after the matter was struck off the roll.
I consider it necessary to
put the caseflow management process in its
proper perspective and I proceed to do so hereunder.
Judicial
caseflow management.
[37]
There can be no debate about the necessity and indeed the important
role the judicial caseflow management process plays as
part and
parcel of the measures that have been introduced to enhance the
performance of the courts. The introduction of these
measures
finds its statutory undergirding in
section 8
of the
Superior Courts
Act 10 of 2013
[8]
. This
has been done through the introduction of an amalgam of measures all
designed to improve efficiency in the judicial
system and
importantly, the speedy finalisation of cases. Very
importantly, caseflow management is also provided for as one
of those
measures in
section 8
(6) (e) (i) of the
Superior Courts Act.
N>
[38]
The Chief Justice, acting in terms of
section 8(2)
of the
Superior
Courts Act, issued
the Norms and Standards for Judicial Officers
[9]
(the norms and standards). The norms and standards provide for,
inter
alia,
Judicial Officers taking control of the management of cases at the
earliest possible opportunity. What becomes apparent from
the
reading of both the
Superior Courts Act and
the norms and standards
is that what is sought to be achieved is the orderly operational
efficiency of the court system.
Through the judicial caseflow
management process an effort is being made to reduce, if not
eliminate, the postponement of cases
for foreseeable and avoidable
reasons such as settlement negotiations being pursued or some other
delays which notoriously manifest
themselves when the trial should be
starting. The identification of the real issues in
dispute between the parties
and what sort of evidence is required to
deal with those issues, the number and availability of witnesses that
must be called are
just some of the issues that are normally dealt
with during the caseflow management process. In this regard, a
number of
templates have been introduced in our Division by the Judge
President to make this process user friendly and to promote
consistency.
There are many other low hanging fruits or obvious
benefits that may flow directly from the judicial caseflow management
process
when it is applied correctly and with a good degree of
consistency. It is designed to enable all practitioners to know
what
is expected of them every step of the way and to ensure that
they do what is required of them so that by the time a matter is
allocated
a date of hearing, it is, to the extent possible, actually
ready for a hearing. Where there is non-compliance or one of
the
parties is trying to be dilatory and thus frustrate the progress
of the matter, such problems are identified timeously and dealt
with.
As a result, once a matter is certified trial ready, chances of
the matter not proceeding on the date allocated for
it are eliminated
or at the very least, substantially reduced. This has,
statistically speaking, improved the finalisation
rate of cases in
our Division.
[39]
In
Bobotyana
[10]
Mbenenge JP explained some of the statutory foundations of the
caseflow management process and some of the implementation procedures
that are observed very succinctly as follows:
“
Paragraph
5.2.4 of the Norms and Standards for Judicial Officers makes it
incumbent on Judicial Officers to take active and primary
responsibility for the progress of cases from initiation to
conclusion so as to ensure that cases are concluded without
unnecessary
delay. The Norms and Standards further provide that
the Head of each Court shall ensure that Judicial Officers conduct
pre-trial
conferences as early and as may be required to achieve
expeditious finalisation of cases. No matter may be enrolled
for hearing
unless a Judicial Officer has certified it to be ready
for trial or hearing.
Judicial
caseflow management received statutory fortification with the
insertion of
rule 37A
in the Uniform Rules. Rule 37A(1)(b)
provides that a judicial case management system shall apply, at any
stage after a notice
of intention to defend is filed to any
proceedings in which such management is determined by the Judge
President, of own accord,
or upon the request of a party, to be
appropriate. Rule 37A(2)(a) provides that case management
through judicial intervention
shall be used in the interests of
justice to alleviate contested trial rolls and to address the various
problems which cause delays
in the finalisation of cases.
By
virtue of the content of paragraph 5.2.4 of the Norms and Standards,
read with rule 37A(1)(b) and 37A(2)(a) of the Rules, there
is no
reason in law and in logic why caseflow management should not,
mutatis mutandis
,
apply to motion proceedings. Indeed, in this Division a form
for caseflow management has been made applicable to other proceedings
as well. Case files are routinely allocated to Judges for
perusal before the hearing date to ensure that short comings that
sometimes beset the progress of cases are brought to the attention of
the parties and remedied timeously, long before the hearing
date.”
[40]
I think it is fair to make an observation that there is nothing in
the
Superior Courts Act, the
norms and standards or any other
instrument that I am aware of which entitles a party to make an
application for what is called
a preferential date of hearing.
It is not clear how the term “preferential date” came to
be as it finds no expression
at all in any of the court instruments.
Even in the context of urgent applications, the term has not been
employed in any
of the rules. In the context of urgent opposed
applications that term has also not been used anywhere. I
understand
Rule 6(12)
which provides for urgent applications as
providing for urgent hearing and determination of applications
depending on the exigencies
of a particular matter. However,
there is simply no dispensation for allocating a preferential date as
the term seems to
be used loosely, for urgent applications.
However, in the context of caseflow management there is nothing to
suggest that
a Judge President or his nominee, may not take into
account whatever exigencies of a particular matter and allocate an
early date
of trial in the case of actions or an early date of
hearing in the opposed motion court roll, in the case of
applications.
Surely, the interests of justice may require such
an intervention in appropriate cases. I do not consider it
helpful to try
to give some examples of situations that may have to
be considered as each situation would have to be considered on its
own peculiarities.
It seems to me that what the Judge President
or his nominee, considers to be in the interests of justice should be
the determining
factor depending on the exigencies of each case.
[41]
In this matter the judgment striking the matter off the roll was
handed down on 25 October 2022. Under the guise of relying
on
the caseflow management process to which reference was made in that
judgment, applicant wrote a very long letter to the office
of the
Judge President dated 28 October 2022 making representations.
That letter was only delivered by hand to the registrar,
it would
appear, three days later on 31 October 2022, if the registrar’s
date stamp is anything to go by. On a proper
reading of the
so-called representations for a preferential hearing date, applicant
repeated almost all the submissions that had
been made in the papers
and in court when the matter was heard which were considered and
rejected by the court. In making
those submissions which are
contained in a ten paged letter and some 36 paragraphs, applicant’s
attorneys also made the following
telling conclusions:
“
33.
For the afore-mentioned reasons which are set out in more detail in
the applicant’s papers and
summarised in the certificate of urgency, the applicant contends that
the circumstances of this
matter do justify this matter being given a
preferential date on the opposed roll this in order to prevent public
funds being utilized
on an unlawful tender. (my emphasis)
34.
We might also mention further that it is settled law that
applications in terms of
section 18
(3) of the
Superior Courts Act
are
urgent in nature.
35.
We, therefore request that this letter be urgently brought to the
attention of the Honourable Judge President or his nominee,
in order
to consider our request that this matter be given a preferential date
on the opposed roll preferably from 3
rd
week of November 2022 until 2
nd
week of December 2022.”
[42]
It is worth mentioning that there is no indication in the letter
itself that the respondents’ attorneys were copied to
this
letter or a copy thereof was served on them. There is no
indication in the court file that they were heard before the
decision
was made to allocate the date of hearing of the 11 November 2022.
Even if the respondents, through their attorneys,
were given a
hearing and indeed indicated that they and their counsel were
available, that would not be the end of the matter.
Urgent
applications are struck off the roll routinely in our courts in any
given week after being given due consideration and an
appropriate
hearing by a duty Judge. The question that must follow
logically is whether through the judicial caseflow management
process, such matters can be reconsidered in chambers and deemed to
be deserving of a preferential hearing date despite being struck
off
the roll by a court for lack of urgency or some other non-compliance
with the rules. That does not seem to sit well with
our rules
in general and antithetical to what a judicial determination is all
about as it is understood in our jurisprudence.
[43]
Practitioners and indeed litigants themselves must understand that
once a judicial determination is made one way or the other,
there is
no administrative process that can lead to what the respondents in
this matter referred to as the reversal of the judgment
striking the
matter off the roll. Court determinations can only be
reconsidered or reversed through an appropriate court
process that is
provided for in the relevant court rules. If such a process is
no longer available, that is the end of the
matter. Court
judgments, orders or rulings are only subject to court procedures and
processes. There is simply no avenue,
outside of a court
process, unless provided for in the legislative framework, that is
available for their reconsideration.
They may not be watered
down even in circumstances where their effect may be perceived to be
harsh, outside the judicial processes
themselves.
[44]
The term, “preferential hearing date”, even when
considered in the context of urgent unopposed or urgent opposed
applications seems to be a misnomer.
Rule 6(12)
provides for
urgent applications and it makes no reference to a “preferential”
hearing date. The dates that are
determined as suitable for
hearing of urgent applications are not preferential dates. The
term “preferential date”
has a connotation of a weighing
up of one matter against another and denotes preferential treatment
of one matter over the others.
That is not how dates of hearing
urgent applications are determined. The dates on which they are
heard are not preferential
dates in my view. They are dates
determined by duty Judges as appropriate hearing dates depending on
the urgency and the
exigencies of each particular matter which may
even be at night in some cases. However, that is not a
preference or a preferential
date or time. In the
circumstances, once a Judge has pronounced or found that a matter is
not urgent, that matter can only
be heard in due course, like any
other non-urgent matter. It should not be given preferential
treatment.
[45]
Judicial caseflow management is not intended to change our rules of
practice in this regard save as provided for in the rules
themselves
and any practice directives that may be applicable. Its main
focus is, as I understand it, not to give preference
to a specific
matter but to enable all matters that are deemed ready for a hearing
to proceed on the hearing date, with all and
any short comings having
been identified early on and addressed. Once that is done, a
matter is allocated a hearing date
by the registrar depending on the
readiness of each matter that lands on his desk on a first come first
served basis. This
is the only system that, in a way allows for
matters contesting for an early spot in the court calendar to be
allocated dates depending
on their readiness and compliance with the
rules and practice directives. Applicant having been
unsuccessful in its application,
there is no reason why costs should
not follow the result.
[46]
In the result the following order shall issue:
1.
The application in terms of
section 18
of
the
Superior Courts Act for
the granting of an execution order is
dismissed.
2.
The applicant is ordered to pay costs
including costs consequent upon the employment of two counsel, where
so employed.
M.S. JOLWANA
JUDGE
OF THE HIGH COURT
Appearances
Counsel
for the applicant: X.S. NYANGIWE
Instructed by
: PN MOLETSANE ATTORNEYS INC.
c/o
MGANGATHO ATTORNEYS
GRAHAMSTOWN
Counsel
for 1
st
& 2
nd
Respondent: A. BEYLEVELD SC WITH S. MALIWA
Instructed
by
: V. FUNANI ATTORNEYS INC.
c/o
GILINDODA ATTORNEYS
GRAHAMSTOWN
Counsel
for the 3
rd
to 6
th
Respondent: S. TSHIKILA
Instructed
by
:GILINDODA ATTORNEYS
GRAHAMSTOWN
Date
heard
: 11 November 2022
Date
delivered
: 17 January 2023
[1]
Incubeta
Holdings & Another v Ellies & Another
2014 (3) SA 189
(GSJ)
at para 16 and 17.
[2]
Ntlemeza
v Helen Suzman Foundation
2017 (5) SA 402
(SCA) at 415 E-J.
[3]
Member
of the Executive Council, Department of Education, Eastern Cape v
Komani School & Office Supplies CC t/a Komani Stationers
2022
(3) SA 362
(SCA) paras 43-44
[4]
University
of the Free State v Afriforum and Another 2018(3) SA 428 (SCA) at
para 13.
[5]
Allpay
Consolidated Investment Holdings (Pty) Ltd and Others v Chief
Executive Officer of the South African Social Security Agency
and
Others
2014 (1) SA 604
(CC) para
[6]
Incubeta
note 1 supra
[7]
University
of the Free State note 4 supra.
8.
Section 8 of the Superior Courts Act reads: “(1)
…
(2) The Chief Justice as
the head of the judiciary as contemplated in section 165 (6) of the
Constitution, exercises responsibility
over the establishment and
monitoring of norms and standards for the exercise of judicial
functions of all courts.
(3) The Chief Justice
may, subject to subsection (5) issue written protocols or
directives, or give guidance or advice, to judicial
officers-
(a) in respect of norms
and standards for the performance of the judicial functions as
contemplated in subsection (6), and
(b) regarding any matter
affecting the dignity, accessibility effectiveness, efficiency or
functioning of the court.
(4) (a) Any
function or any power in terms of this section, vesting in the Chief
Justice or any other head of court,
may be delegated to any other
judicial officer of the court in question.
(b)
The management of the judicial functions of each court is the
responsibility of the head of that court.
(c) …
(5) …
(6) The judicial
functions referred to in subsection (2) and subsection (4) (b)
include the –
(a) determination of
sitting of the specific courts;
(b) assignment of
judicial officers to sittings;
(c) assignment of cases
and other judicial duties of judicial officers;
(d) determination of the
sitting schedules and places of sitting for judicial officers,
(e) management
procedures to be adhered to in respect of –
(i)
caseflow management;
(ii)
the finalisation of any matter before a judicial officer, including
any outstanding judgment, decision or order; and
(iii)
recesses of Superior Courts.
(7) …”
9. Clause 5.2.4 of the
Norms and Standards provides:
“
(i)Case
flow management shall be directed at enhancing service delivery and
access to quality justice through the speedy finalisation
by all
matters.
(ii) The National
Efficiency Enhancement Committee, chaired by the Chief Justice shall
coordinate case flow management at national
level. Each
Province shall have only one Provincial Efficiency Enhancement
Committee, led by the Judge President that reports
to the Chief
Justice.
(iii) Every Court must
establish a case management forum chaired by the Head of that Court
to oversee the implementation of case
flow management.
(iv) Judicial Officers
should take control of the management of cases at the earliest
possible opportunity.
(v) Judicial Officers
should take active and primary responsibility for the progress of
cases from institution to conclusion to
ensure that cases are
concluded without unnecessary delay.
(vi) The Head of each
Court shall ensure that Judicial Officers conduct pre-trial
conferences as early and as regularly as may
be required to achieve
the expeditious finalisation of cases.
(vii) No matter may be
enrolled for hearing unless it is certified trial ready by a
Judicial Officer.
(viii) Judicial Officers
must ensure that there is compliance with all applicable time
limits.”
[10]
Bobotyana
and Others v Dyantyi and Others
2021 (1) SA 386
(ECG) paras 18-20.