Summary of Judgment

1. Introduction

This judgment concerned two interlocutory matters arising in litigation in the Gauteng Division, Pretoria. The court was required to determine, first, an application for a postponement and, second, an application for leave to appeal against an earlier judgment delivered on 19 December 2022.

In the main proceedings, the National Department of Public Works (DPW) was the applicant, with Roux Property Fund (Pty) Ltd (RPF) cited as first respondent and Nedbank Ltd as second respondent. In the present proceedings (leave to appeal), the roles were procedurally reversed in that RPF was the party seeking leave to appeal, while DPW opposed aspects of the relief sought (notably the postponement). The judgment was delivered by Van der Schyff J on 29 November 2023.

The general subject matter implicated by the application for leave to appeal was identified by the court as raising two questions of legal significance: whether a national department has the necessary locus standi to litigate in its own name (as distinct from the responsible Minister), and whether a State applicant may, in appropriate circumstances, seek a declarator that a contract is ab initio invalid without bringing a self-review under the doctrine of legality.

2. Material Facts

The judgment which RPF sought to appeal was delivered on 19 December 2022. RPF filed its application for leave to appeal on 11 January 2023 on the CaseLines electronic file. However, the court recorded that RPF’s legal representative apparently failed to invite the Registrar of Appeals to the CaseLines file, with the consequence that the judge only became aware of the application much later.

On 12 October 2023, DPW sent an email enquiry regarding when the application for leave to appeal would be heard. Following a case management meeting, the court communicated that the delay in the prosecution of the application made it necessary for the matter to be finalised within the term, and the parties were afforded an opportunity to determine a suitable hearing date and to file heads of argument.

The court recorded that RPF could not secure the services of its preferred senior counsel and failed to file heads of argument in the application for leave to appeal. RPF then brought a substantive postponement application, seeking the hearing to be postponed until 19 February 2023, alternatively a later date agreed between the parties. The reason advanced for postponement was that the application for leave to appeal had been set down despite RPF’s position that it could not obtain sufficiently experienced senior counsel for the hearing date.

In addressing the postponement request, the court distinguished between RPF’s explanations for the approximately nine-month period during which the leave application was not actively pursued after filing. The explanations advanced included that RPF’s legal representative either waited for the judge’s registrar to initiate contact (despite an undertaking to DPW’s attorneys in March 2023 to follow up), or that RPF’s legal representatives did not proceed due to insufficient funds. The court treated the delay and the resulting difficulty in securing counsel as circumstances attributable to RPF.

The court also noted that RPF did not suggest that it intended to amend or expand the grounds of appeal from those stated in the application dated 11 January 2023.

3. Legal Issues

The court was required to determine two principal issues.

The first issue was whether RPF had made out a proper case for a postponement of the hearing of the application for leave to appeal, in circumstances where the matter had been delayed for a substantial period and where RPF relied primarily on an asserted inability to secure sufficiently experienced senior counsel.

The second issue was whether RPF should be granted leave to appeal, applying the statutory test in section 17 of the Superior Courts Act 10 of 2013. In this part of the decision, the court also identified whether there were compelling reasons for the appeal to be heard by the Supreme Court of Appeal, given the legal questions said to arise from the main judgment.

In the court’s framing, the questions supporting leave to appeal were issues of law, aimed at achieving legal certainty on questions relating to locus standi of national departments and the permissibility of certain declaratory relief by the State without a legality self-review.

4. Court’s Reasoning

On the postponement application, the court considered the affidavits filed in support of and in opposition to postponement and concluded that RPF had not established grounds justifying a postponement. The court was not persuaded by the explanation that the leave application lay dormant because RPF’s legal representatives waited for the court’s registrar to contact them, particularly given the recorded undertaking to DPW’s attorneys to follow up with the judge’s office. The court was likewise not persuaded by the alternative explanation that a lack of funds prevented active prosecution of the leave application.

In the court’s evaluation, the difficulty RPF later faced—namely that it was impossible to secure senior counsel of its choice—was a predicament of its own making, arising from the undue delay and the manner in which the application was handled.

The court also reasoned that RPF had already formulated and filed its grounds of appeal and did not indicate an intention to amend or expand them. In that context, the court did not accept that RPF would suffer relevant prejudice if the application for leave to appeal proceeded on the papers and grounds already filed. The court reinforced the importance of expeditious disposal of leave applications, referencing the principle stated in Law Society, Northern Provinces v Mogami and Others 2010 (1) SA 186 (SCA) to the effect that courts are obliged to deal with leave applications expeditiously and that there is no reason they cannot be disposed of in chambers without oral argument.

Turning to leave to appeal, the court applied the test in section 17 of the Superior Courts Act 10 of 2013. The court accepted DPW’s statement in the main application that the matter was, in the public interest, one requiring expeditious determination, but nevertheless concluded that there were two compelling reasons for the appeal to be heard by the Supreme Court of Appeal.

The first compelling reason identified was the need for authoritative determination of whether a national department such as DPW has the necessary locus standi to institute litigation and be cited as an applicant, as opposed to citing the responsible Minister. The court characterised this as raising the question whether the distinction between a responsible Minister and a national department is merely semantic or whether it has substantive consequences that could render proceedings defective.

The second compelling reason concerned whether a State applicant, in appropriate factual circumstances such as those in this case, may seek a declaratory order that a contract it concluded is ab initio invalid without specifically instituting a self-review application under the doctrine of legality. The court indicated that the reasoning for considering the application—distinguishing it from MEC for Health, Eastern Cape and Another v Kirkland Investments (Pty) Ltd (CCT 77/13) [2014] ZACC 6—was captured in paragraphs [3] to [6] of the (earlier) judgment.

The court regarded both questions as issues of law and held that legal certainty would be advanced if the Supreme Court of Appeal finally determined them, to the extent necessary, on the papers.

5. Outcome and Relief

The court dismissed the postponement application. RPF, as applicant in the postponement application, was ordered to pay DPW’s costs, including the costs of two counsel.

The court granted leave to appeal to the Supreme Court of Appeal. The costs of the application for leave to appeal were ordered to be costs in the appeal.

Cases Cited

Law Society, Northern Provinces v Mogami and Others 2010 (1) SA 186 (SCA)

MEC for Health, Eastern Cape and Another v Kirkland Investments (Pty) Ltd (CCT 77/13) [2014] ZACC 6

Legislation Cited

Superior Courts Act 10 of 2013, section 17

Rules of Court Cited

No rules of court were cited in the judgment.

Held

The court held that RPF failed to establish a basis for postponement, particularly in light of the undue delay in prosecuting the leave application and the court’s view that the resulting difficulties in securing preferred senior counsel were attributable to RPF’s own conduct. The postponement application was accordingly dismissed with a costs order including two counsel.

The court further held that leave to appeal should be granted to the Supreme Court of Appeal because there were compelling reasons for an appeal, namely the need for authoritative determination of (i) whether a national department has locus standi to litigate in its own name rather than through the responsible Minister, and (ii) whether, in appropriate circumstances, the State may seek a declarator that a contract is ab initio invalid without instituting a legality self-review. Costs of the leave application were ordered to be costs in the appeal.

LEGAL PRINCIPLES

The judgment applied the principle that applications for leave to appeal must be dealt with expeditiously, and that there is no inherent necessity for oral argument because such applications may, where appropriate, be disposed of in chambers on the papers, as reflected in Law Society, Northern Provinces v Mogami and Others 2010 (1) SA 186 (SCA).

The judgment applied the statutory standard for leave to appeal under section 17 of the Superior Courts Act 10 of 2013, treating the presence of compelling reasons—particularly the need for legal certainty on important questions of law—as sufficient justification for granting leave to appeal to the Supreme Court of Appeal.

The judgment also proceeded on the basis that questions concerning (i) the locus standi of a national department to litigate in its own name and (ii) the permissibility of a State party seeking a declarator of ab initio invalidity without a legality self-review are matters of legal significance capable of warranting appellate determination, and that clarity from the Supreme Court of Appeal would serve legal certainty.