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[2023] ZAECMKHC 34
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Tekoa Engineers (Pty) Ltd v Alfred Nzo Municipality and Others (Appeal) (1284/2021) [2023] ZAECMKHC 34 (23 March 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:
[1]
On 17 January 2023 this Court delivered a judgment dismissing the
applicant’s application for the granting of an execution
order
in respect of a judgment of this Court delivered on 14 June 2022.
The said application is provided for in
section 18
(3) of the
Superior Courts Act 10 of 2013
. The applicant now applies for
leave to appeal against the judgment in the
section 18
(3)
application. It does so citing a raft of grounds in its
application for leave to appeal, to be precise, no less than
33
grounds have been cited therein. In all of those grounds,
nothing is said about the appeal against the actual order that
this
Court made, that is, an order dismissing the
section 18
(3)
application for it to be granted an execution order. In other
words, there is no leave to appeal sought against the order
that this
Court made on 17 January 2023 dismissing the said
section 18
(3)
application.
[2]
This lacuna was not missed out by Mr Bodlani who appeared for the
municipal respondents. He invited the court to carefully
peruse
and even scrutinize all of those grounds of appeal and submitted that
the court will not find any suggestion that the order
itself was
under attack. What seemed to be under attack, he pointed out,
were the reasons for the court coming to the conclusion
that it did.
In the final analysis, the submission was that this should be the end
of this matter and the application for
leave to appeal should meet
its natural destiny of dismissal in the circumstances. I
consider it convenient to start with
this point which is in my view
an issue that could potentially be dispositive of the application for
leave to appeal.
[3]
In
Ntshwaqela
[1]
a case to which I was referred to by counsel for the municipal
respondents, the Appellant Division, as the Supreme Court of Appeal
was then called, explained in quite some detail what, in the context
of court proceedings, a judgment or order is. It appears
that,
more than thirty years ago already when the court dealt with the
matter of
Ntshwaqela
,
the distinction between a judgment or order and a judgment in the
general sense was so obvious that it called for a detailed
explanation as it still does todate, if only to demystify the
obvious, so to speak. I quote copiously from the said case
below:
“
An initial
question arises in regard to the interpretation of Howie J’s
judgment. In legal usage the word
judgment
has at least
two meanings: a general meaning and a technical meaning. In the
general sense it is the English equivalent of
the American
opinion
,
which is
‘
(t)he statement by
a Judge or court of the decision reached in regard to a cause tried
or argued before them, expounding the law
as applied to the case, and
detailing the reasons upon which the judgment is based’.
…
In its technical
sense it is the equivalent of
order
. See
Rule 42
of the
Rules of Court, which deals with the rescission or variation of ‘an
order or judgment’, and ss 20 and 21 of
the Supreme Court Act
59 of 1959, which provide for appeals from a judgment or order.
In
Dickson & Another v Fisher’s Executors
1914 AD
424
, it was explained at 427 that the distinction between a judgment
and an order would probably be found to be this,
‘…
that the
term judgment is used to describe a decision of a court of law upon
relief claimed in an action, whilst by an order is
understood a
similar decision upon relief claimed not by action but by motion,
petition or other machinery recognised in practice’.
When a judgment has been
delivered in Court, whether in writing or orally, the Registrar draws
up a formal order of court which
is embodied in a separate document
signed by him. It is a copy of this which is served by the
Sheriff.
There
can be an appeal only against the substantive order made by a Court,
not against the reasons for judgment.
”
[2]
[4]
It is this distinction on what a judgment or order, at least, for the
purposes of an appeal, is that has led to the undesirable
but
unfortunately very common practice of applications for leave to
appeal which tend to be a monotonous monologue which sometimes
almost
rivals the judgment itself in length. In this practice,
undersireable as it is, even the court’s comments made
obiter
,
tend to be a subject of an application for leave to appeal as was the
case in this matter. The rather overly extensive grounds
of
appeal tend to fruitlessly engage in a futile debate about a court’s
reasoning for the judgment. Fortunately, counsel
for the
applicant, who, it was clear, did not draw the application for leave
to appeal in this matter, understood this. As
a result, she
focused squarely on the real and the only issue before the court.
That is whether, to borrow from the language
of
section 17
(1) of the
Superior Courts Act, the
appeal would have a reasonable prospect of
success. I turn now to this narrow issue hereinbelow.
[5]
The central issue in the judgment sought to be appealed was whether,
first, exceptional circumstances for the relief sought
as provided
for in
section 18
(1) of the
Superior Courts Act had
been established
by the applicant. When the matter was heard the respondents’
application for leave to appeal against
the main judgment had been
dismissed. They had then applied to the Supreme Court of Appeal
for special leave to appeal the
main judgment. The Supreme
Court of Appeal had not yet pronounced on the applications for the
special leave to appeal.
[6]
It appears that when the applicant’s heads of argument were
drawn by applicant’s counsel on 10 March 2023, it had
not yet
been brought to her attention that the Supreme Court of Appeal had,
on 9 December 2022, granted all the respondents leave
to appeal to
the full court of this Division. In fact, the heads of argument
were filed on the 14 March 2023 apparently still
under the mistaken
impression that the decision of the Supreme Court of Appeal was still
pending. As a result, at paragraphs
25 and 26 of the
applicant’s heads of argument, the following submission is
made.
“
25. A Full Court
of the Pretoria High Court has articulated the position as follows
[in
Liviero Wilge Joint Venture and Another v Eskom Holdings SOC
Ltd
[2014] ZAGPPJHC 150 para 30]:
‘
The less sanguine
a court seized of an application in terms of
s18
(3) is about the
prospects of success of the judgment at first instance being upheld
on appeal, the less inclined it will be to
grant the exceptional
remedy of execution of that judgment pending the appeal. The
same quite obviously applies in respect
of a court dealing with an
appeal against an order granted in terms of
s18
(3).’
2.
54cm; margin-bottom: 0cm; line-height: 150%">
26. It is submitted that
the circumstances of this case demonstrate weak prospects of
success. Indeed, this Court refused
leave to appeal, with the
result that the respondent approached the Supreme Court of Appeal for
special leave to appeal.
The outcome of those applications is
still awaited; as such, no court has found reasonable prospects that
another court would come
to a different conclusion on appeal.
It is submitted that no such prospects can be demonstrated.”
[7]
Counsel for the municipal respondents brought to the attention of the
court that in fact the Supreme Court of Appeal has since
granted all
the respondents leave to appeal to the full court of this Division.
The court order of the Supreme Court of Appeal
is dated 9 December
2022 as I said before. It is not clear how this significant
development was missed by the applicant’s
attorneys with the
result that they failed to bring it to the attention of applicant’s
counsel. After all, these are
the same attorneys who have been
acting for the applicant from inception. They would also have
been involved and interested
in the application for special leave to
appeal to the Supreme Court of Appeal as they are still acting for
the applicant even now.
The granting of the special leave to
appeal is significant for two main reasons. First, it means
that the respondents’
efforts to seek leave to appeal were not
in pursuit of a vexatious appeal, or even an entiely meritless one,
designed merely to
delay the inevitable. Second, it means that
in fact the Supreme Court of Appeal is of the view that the
respondents do enjoy
a reasonable prospect of success on appeal in
respect of the main judgment hence it granted leave to appeal to the
full court of
this Division.
[8]
Be that as it may, counsel for the applicant stressed that despite
this development, nothing has changed in so far as the actual
appeal
itself is concerned. Indeed, no court has made any
pronouncement on the appeal itself in that it is yet to be heard.
This submission is correct in my view. The fact that leave to
appeal has been granted does not mean that the appeal itself
is a
fait accompli
. All that it means is that the appeal by
the respondents enjoys a prospect of success ̶̶̶
this being
the test or requirement prescribed in
section 17
(1) of
the
Superior Courts Act for
the granting of an application for leave
to appeal. This distinction is very important especially in
light of the application
for leave to appeal against this Court’s
judgment in the
section 18
(3) application. That application
must consequently be assessed on the basis that the appeal in respect
of the main judgment
is still pending and has not yet been
determined.
[9]
In the
section 18
(3) application I made two principal findings.
The first one was that a court has no discretion on the assessment of
the
section 18
requirements. In other words, it had to be
established factually that exceptional circumstances for the granting
of the execution
order existed in the first place. In the
second place it had to be established by applicant first, that it
would suffer irreparable
harm if the execution order was not
granted. Secondly, the respondents would not suffer irreparable
harm by the granting
of the execution order pending the appeal
processes. The second main finding was that the applicant had
failed to establish
any of the requirements provided for
section 18
for the granting of the execution order all of which had to be
established for the court to exercise the discretion that flows
from
a positive finding in that regard.
[10]
Once the above conclusion was reached, the court had no discretion on
whether or not to grant the execution order as the
section 18
jurisdictional requirements had not been met. They are after
all, a
condictio sine qua
non
for the ultimate exercise
of the discretion by the court to grant or not to grant the execution
order. Absent a positive
finding in that regard, there could be
no talk of a discretion. The issue of the court having a
discretion on whether or
not to grant the execution order even if the
requirements are met actually means that the fact that the
section 18
requirements are met does not mean that the court must, under all
circumstances, grant the execution order. The court is
obliged
to exercise a discretion, judiciously and it may very well decide
against granting the execution order notwithstanding
the fact that
exceptional circumstances have been established and the applicant has
shown that irreparable harm will befall it
if the order is not
granted and that the respondents will not suffer irreparable harm by
the granting of the order. This
kind of discretion ultimately
depends on the facts of each case and must be exercised with great
circumspection. The court’s
discretion in this regard is
not without significance. It is undergirded by the legal
position that 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 which is
at the very core of section 18 as a whole.
[11]
The central theme of the applicant in its quest for leave to appeal
is that this Court should have found that it had established
the
exceptional circumstances and that it would suffer irreparable harm
if the execution order was not granted. Furthermore,
it was
contended that applicant had established that the respondents would
not suffer irreparable harm by the granting of this
order and the
court erred in not finding accordingly. As such, not granting
the execution order would lead to the order granted
in the main
application evaporating during the remaining period before the
contract comes to an end on 31 August 2023 unless the
order was
granted. And public funds that would be expended during the
remaining period while the respondents continue with
the works when
they were ordered to stop by the court could be wasted.
Therefore, exceptional circumstances were established,
so went the
submission.
[12]
Counsel for the applicant, Ms Stein further submitted that the rights
that accrued to the applicant, in particular, the right
to
participate in a procurement process that is fair, equitable,
transparent, competitive and costs effective are of the ilk that
our
courts have, in a number of cases, said that they are worthy of
protection. Reference was made in the applicant’s
heads
of argument and during the oral hearing in court to a number of court
decisions all the way to the Constitutional Court including
the case
of
Fose
[3]
in which the centrality of a litigant’s rights to a just,
equitable and effective relief in our constitutional order was
emphasized in the following terms:
“
Given the
historical context in which the interim Constitution was adopted and
the extensive violation of fundamental rights which
had preceded it,
I have no doubt that this Court has a particular duty to ensure that,
within the bounds of the Constitution, effective
relief be granted
for the infringement of any of the rights entrenched in it.
In our context an appropriate remedy
must mean an effective remedy,
for without effective remedies for breach, the values underlying and
the rights entrenched in the
Constitution cannot properly be upheld
or enhanced. Particularly in a country where so few have the
means to enforce their
rights through the courts, it is essential
that on those occasions when the legal process does establish that an
infringement of
an entrenched right has occurred, it be effectively
vindicated. The courts have a particular responsibility in this
regard
and are obliged to “forge new tools” and shape
innovative remedies if needs be to achieve this goal.”
[13]
What in essence was submitted on behalf of the applicant was that the
rights that applicant has in a fair tendering process
as provided for
in section 217 of the Constitution are the entrenched rights that
deserve protection from the courts. Therefore,
leave to appeal
should be granted to prevent the applicant’s rights which were
vindicated in its success in the main application
from coming to
nought. The submission was that in all these circumstances, the
applicant enjoys reasonable prospects of success
on appeal.
[14]
Counsel for the municipal respondents referred the court to the case
of
South
Cape Corporation
[4]
in which Corbett JA, as he then was said:
“
Approaching the
matter on principle, one starts with the basic rule that the due
noting of an appeal suspends the operation of the
judgment and that,
if the party in whose favour it has been given wishes it to be put
into execution, he must make special application
for leave to do so.
He, being the claimant for relief, must satisfy the Court that there
are good grounds for the exercise
by the Court of its general
discretion in his favour. This means that the overall
onus
of establishing a proper case for the grant of leave to
execute would rest upon the applicant and, if at the end of the
hearing
the Court were left in doubt as to the essential facts or as
to whether it was an appropriate case of the grant of leave, then the
application should be refused.”
[15]
In the section 18 (3) application I came to the conclusion that the
applicant had failed in establishing a proper case for
the grant to
it of the execution order it sought in that it had not satisfied the
statutory requirements ordained in
section 18
of the
Superior Courts
Act. Having
read the well written heads of argument by both
counsel for which I am very grateful and having heard the incisive
submissions
made during the oral hearing of the application for leave
to appeal, I am not swayed that I erred in dismissing the application
for the granting of the execution order for the reasons stated in my
judgment. Therefore, I am not of the opinion that the
appeal
would have a reasonable prospect of success. In fact, I am of
the view that in addition to the appeal having no prospect
of
success, granting the application for leave to appeal now just before
the appeal in the main judgment is heard would be counterintuitive.
Furthermore, it was not argued that there was a compelling reason for
the appeal to be heard. I also am not of the opinion
that a
compelling reason why the appeal should be heard exists.
[16]
In the result the following order shall issue:
1. The application for
leave to appeal is dismissed.
2. The applicant is
ordered to pay costs of the application for leave to appeal including
costs consequent upon the employment of
two counsel.
M.S. JOLWANA
JUDGE OF THE HIGH
COURT
Appearance:
Counsel
for the applicant:
N.
STEIN
Instructed
by:
PN
MOLETSANE ATTORNEYS INC.
c/o
CLOETE AND CO. ATTORNEYS
GRAHAMSTOWN
Counsel
for 1
st
& 2
nd
Respondent:
A.M.
BODLANI SC WITH S.H. MALIWA
Instructed
by:
V.
FUNANI ATTORNEYS INC.
MTHATHA
Date
heard:
15
March 2023
Date
delivered:
23
March 2023
[1]
Administrator
of Cape of Good Hope and Another v Ntshwaqela and Others
1990 (1) SA
705
(A) at 714 I to 715 A-D
[2]
My emphasis.
[3]
Fose
v Minister of Safety and Security
[1997] ZACC 6
;
1997 (3) SA 786
(CC) para 69.
[4]
South
Cape Corporation (Pty) Ltd v Engineering Management Services (Pty)
Ltd
1977 (3) SA 534
(A) at 546 D-F.