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[2022] ZAFSHC 90
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Member of the Executive Committee: Police, Roads & Transport, Free State v Ket Civils CC and Others (1640/2021) [2022] ZAFSHC 90 (5 May 2022)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable:
YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
Case
number: 1640/2021
In
the matter between:
THE
MEMBER OF THE EXECUTIVE COMMITTEE:
Applicant
POLICE,
ROADS & TRANSPORT, FREE STATE
and
KET
CIVILS CC
1
st
Respondent
NWETI
CONSTRUCTION (PTY)
LTD
2
nd
Respondent
DOWN
TOUCH INVESTMENT(PTY) LTD
3
rd
Respondent
RAUBEX
NODOLI CONSTRUCTION JV
4
th
Respondent
TAU
PELE CONSTRUCTION (PTY)
LTD
5
th
Respondent
SEDTRADE
(PTY)
LTD
6
th
Respondent
JUDGMENT
BY
:
MHLAMBI J,
HEARD ON:
Matter disposed of
without oral hearing in terms of section19(a) of
the Superior Court Act 10 of 2013.
DELIVERED ON:
This judgment
was handed down electronically by circulation to the parties’
legal representatives by email and released to SAFLI. The date and
time for the hand-down is deemed to be at 9h00 on 05 May 2022.
APPLICATION
FOR LEAVE TO APPEAL
MHLAMBI,
J
[1] The First respondent
(and all the parties in the counter-application, will be referred to
as such in this application) filed
a notice of the application for
leave to appeal in terms of section 16(1)(a)(i) read with
section
17(2)(a)
of the
Superior Courts Act 10 of 2013
on 4 October 2021
which reads as follows:
“
TAKE NOTICE
THAT,
in terms of
section 16(1)(a)(i)
read with section 17
(2)(a) of the Superior Courts Act 10 of 2013
(“the
Superior Court Act”),
the First Respondent
(“KET”)
intends to apply to the above Honourable Court for leave
to appeal to the Supreme Court of Appeal against paragraphs 1 to 5 of
the
amended order granted by Honourable Mr Justice Mhlambi
(“Judge
Mhlambi”)
on or about 13 September 2021 (the “
second
order”
).
TAKE NOTICE FURTHER
THAT
this application for leave to appeal is brought pursuant to
the Judge President’s letter dated 17 September 2021 and
addressed
to KET’s attorneys, in which the Judge President
clarified the position in relation to the contradictory first and
second
orders. Since this letter does not form part of the Court
record, it, together with KET attorneys’ letter of 16 September
2021, are attached marked “
LA1”
and “
LA2”
respectively for convenience and ease of reference.”
[2] The grounds on which
the application for leave to appeal is sought are briefly stated as
follows:
2.1
Compelling reasons for the application for leave to appeal to be
heard
:
2.1.1 The court did not
grant the second order on 29 April 2021 and there was no subsequent
hearing where such an order was granted;
2.1.2 The court failed to
exercise its discretion judicially;
2.1.3 The granting of the
second order was inconsistent with the principles set out in
EKE
vs. Parsons
[1]
and
Bengwenyama
[2]
as the court simply rubber-stamped the consent order presented to it
by the applicant (The Department) and the third to fifth respondents
in the counter-application without considering whether the order was
competent or appropriate.
2.2
Prospects of success
2.2.1
The order on the merits could not be granted when the application was
not urgent;
[3]
2.2.2 The order on the
merits exceeded the draft consent order.
[3] The application is
therefore predicated upon section 17(1) of the Superior Courts Act
of 2013 which provides as
follows:
“
(1)
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;”.
[4]
The use of the word “
would”
in the statute indicates a measure of certainty that another court
will differ from the court which judgment is sought to be appealed
against.
[4]
Where
a compelling reason is advanced why the appeal should be heard, a
court should 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.
[5]
[5] Before considering
the grounds of appeal, a brief background is necessary. “LA1”
[6]
is the letter addressed to the Judge President of the High Court of
the Free State Division, Bloemfontein in which he is asked
to
intervene in the following respects:
“
6.9.1 By
investigating and establishing the source of the second and third
court orders. If they emanate from a source other
than Mhlambi, J,
then they are unlawful and serious breach of the law and the court’s
protocols. No doubt the Judge President
will address such a breach
appropriately.
6.9.2 If the second
and third court orders emanate from or have been issued with Mhlambi,
J’s authority, by –
6.9.2.1
Establishing from Mhlambi, J whether the second and third court
orders replace or exist alongside the first
court order striking the
counter application of the roll (this apparently is the case
according to the department and the other
respondent);
6.9.2.2 If
they replaced the court order, establish from Mhlambi, J which one is
ultimately his order; and
6.9.2.3 If
the ultimate order is the third court order, ask Mhlambi, J to
provide his reasons, and the Judge President
is asked to issue
direction from an expedited application for leave to appeal and or
appeal so that KET my challenge the third
court order before an open
court.”
[6] “LA 2”
refers to the response of the Judge President to the first
respondent’s request, suggesting that in
the event of the
parties’ dissatisfaction with the manner the presiding judge
exercised his discretion, legal pathways should
be utilised in order
to correct the situation, if necessary.
[7]
Though the first respondent was of the view that the application for
condonation was not necessary, such an application was
filed and
served on 16 November 2021.
[8]
Both the applications for leave to appeal and condonation are
opposed.
[9] On 29 April 2021, the
two applications under case numbers 1510/2021(brought by the first
respondent as applicant) and 1640/2021(a
counter-application brought
by the MEC as applicant) served before me on an urgent basis. The
order sought in Part A of the first
respondent’s application
under case number 1510/2021, reads as follows:
“
1. That the
non-compliance with the Uniform Rules of Court be condoned and that
the matter be heard as an urgent application in
terms of Rule 6(12)
(a).
2. It is declared
that:
2.1
The first respondent is obligated to initiate the process to
terminate any and all contracts concluded between
the first
respondent and the applicant pursuant to the applicant being a member
of the panel of contractors described as the “Panel
of
contractors for upgrading, periodic, routine and special maintenance
of all Free State roads for the department of Police, Roads
and
Transport for a period of thirty-six (36) months (8CE) and higher on
ad-hoc basis” constituted by the first respondent
in 2020 under
BID 06/2018/19 (“the panel”).
2.2
The applicant was entitled to suspend further works under all
contracts concluded between the first respondent
and the applicant
pursuant to the applicant being a member of the panel after being
informed of the find of the third respondent
that the constitution of
the panel was irregular, and in preparation for the termination
contemplated in paragraph 2.1 above.
3. Pending the
determination of Part B,
3.1
Directing the first respondent to suspend (save for traffic control
services, the preservation of the completed
works, and generally
keeping the roads safe for use by the public, which services the
applicant and the fourth to fifth respondents
must continue to
provide and the department must continue to pay them for), and
interdicting the first respondent from performing
in terms of, any
and all contracts concluded by it with the applicant and the fourth
to eight respondents pursuant them being the
members of the panel;
and
3.2
Interdicting the first respondent from issuing instructions (other
than in respect of traffic control and
preservation of the works and
generally keeping the roads safe for use by the public) to the
applicant and the fourth to eight
respondents pursuant to them being
members of the panel to perform under the suspended contracts.
4. Directing the first
respondent to provide the applicant and the fourth to eight
respondents with full copies of the third respondent’s
findings
within five (5) days of the date of this order.
5. Granting the
applicant leave to amend the relief sought in Part B and or file a
supplementary affidavit in respect of such amended
relief.
6. Directing all
respondents who oppose Part A to pay costs of suit, jointly and
severally, the one paying the other to be absolved.
7. Further and or
alternative relief.”
[10] The order sought in
the counter-application under case number 1640/2021 reads as follows:
“
1. That the
non-compliance with the Uniform Rules of Court be condoned and the
matter be heard as an urgent application in terms
of Rule 6(12) (a).
2. That this
application be heard simultaneously with the application under the
case number 1510/2021 as the facts and parties are
substantially the
same.
3. An order in terms
of section 6 of the Promotion of Administrative Justice Act 3 of 2000
(“PAJA”) reviewing and setting
aside the decision of the
applicant, acting in his capacity as the accounting officer of the
applicant in appointing the first
to sixth respondents on the 21st
February 2019 in the panel PR&T/BID06/2018/19 for the upgrading,
periodic, routine and special
maintenance of all Free State road for
the department of Police, Roads and Transport for the duration of
thirty-six (36) months
and any contract made under this panel.
4. An order in terms
of section 172(1)(a) of the Constitution of the Republic of South
Africa, 1996, declaring that the conduct
of the applicant and
constituting the panel as set out hereinabove is inconsistent with
the provisions of section 217 of the Constitution
and is invalid to
the extent of the inconsistency.
5. An order in terms
of section 172(1)(b)(ii) of the Constitution of the Republic of South
Africa, 1996, suspending the declaration
of invalidity of the
contracts emanating from the panel and any extensions thereunder
until the said contract is completed.
6. An order directing
any respondent opposing this application to pay the costs of this
application, jointly and severally the one
paying, the others to be
absolved.
7. Any order just an
equitable as this Honourable Court may deem fit.”
[11] Paragraphs 1-5 of
the “
second
order
”
referred to in the application for leave to appeal, refer to prayers
1-5 of the counter-application save for the minor amendment
in prayer
3 which was made an order of the court. The order granted in court
related to the agreement which was reached by the
parties and
incorporated paragraphs 3-6 of “
the
second order
”.
[7]
[12] At the inception of
the hearing of the applications, the third, fourth and fifth
respondents in the counter-application settled
their
lis
with the applicant, the MEC of Police, Roads and Transport, by
conceding to an order as reflected in paragraphs 3-6 of the “
second
order
”.
The agreement was verbally communicated to the court by Mr
Snellenburg SC, who acted on behalf of the third respondent.
The
agreement, and the communication to the court by the third
respondent, were confirmed by both Mr Grobbler SC and Mr Pienaar,
who
acted for the fourth and fifth respondents respectively, as well as
Mr Bomela, who acted on behalf of the applicant. The agreement
was
made an order of the court. Mr Luthuli, who acted on behalf of the
first respondent, KET Civils, was present in court and stated
the
following once the order was made: “
Thank
you, my lord. My lord before I start if I may just understand the
order that the court has just made.…I understand
that to
obviously be provisional, depending on what the court ultimately
decides…otherwise, the agreement that has been
reached, cannot
be made an order of, until such time, as your lordship has granted
the department’s application.”
[8]
[13] In August 2021, I
was presented with the letter dated 6 August 2021 from Messrs Peyper
Attorneys, one of the respondents’
attorneys, advising that it
was in contestation whether the parties’ agreement was made an
order of the court as the first
respondent contended that it was not.
Paragraph five of the said letter reads as follows:
“
5.
It is by agreement between the parties that we hereby humbly request
his Lordship Mhlambi, J to consider
the attached record of the
proceedings, and more particularly pages 1 to 6 and 53 to 55 to
confirm alternatively clarify whether
the court had indeed made an
order pursuant to the agreement between the Department and the
respondents. The court’s clarification
will be of critical
importance in the pending application under Case no: 1510/2021 that
is set down for hearing on 02 September
2021.”
[14] I responded in
writing and confirmed that the agreement that was reached between the
applicant, the third, fourth and fifth
respondents under Case No:
1640/2021, and as presented in court by Mr Snellenburg SC, was made
an order of the court.
.
[15]
In September 2021, I was presented with a letter from the applicant’s
attorneys, to which was attached a letter from
Adv. L R Bomela. The
concern was that the court order in the applicant’s possession
omitted some of the prayers in the agreement
which was made an order
of the court. I was requested to vary the order in terms of Rule
42(1)(b) of the Uniform Rules of Court
only to the extent
of
including
the prayers which were omitted from the order. A draft order, much in
line with the order granted in court, was attached
to the counsel’s
(Mr Bomela) letter. The request was not adhered to. I was of the view
that the counsel’s approach
did not comply with the said rule
as,
ex
facie
the document presented to me, the other parties were not notified.
[9]
The
Transcribed record
[16] In paragraph 2.2 of
“
LA1”
, the applicant contended that: “
Indeed,
the two applications served before the Honourable Justice Mhlambi on
29 April 2021. At the commencement of the hearing,
Mhlambi, J
directed the parties to address him on urgency first and indicated
that he would only hear the merits of the applications
only if he was
satisfied that they were urgent. At that stage, the department and
the other respondents in the counter application
presented the court
with a draft order which purported to settle the litigation between
them and the department (to the exclusion
of KET). When it appeared
that Mhlambi, J was favourably disposed to granting such consent
order, KET’s counsel addressed
the court on why such proposed
consent order was incompetent and could not be granted.”
[17] In paragraphs 4.1
and 4.2 of the said letter the following was stated:
“
4.1
Fearing that the department and the other respondents would drag
their feet and jeopardise the hearing
date of 2 September 2021, KET
proposed that clarity be sought from Mhlambi, J on the first court
order by way of a letter (as opposed
to a formal application in terms
of Rule 42). KET was of the view that this approach would not only
save time, but would elicit
a very simple response confirming the
order striking the application off the roll.
4.2
However, to KET’s surprise, what returned was an order granting
the relief sought by the
department in the counter application but
without the just and equitable remedy preserving the contracts (“
the
second court order”
). The second order was sent to us by
the other respondents’ attorneys on 2 August 2021. The second
court order is back-dated
and stamped with the date 29 April 2021. We
must point out that since we had no involvement in the process beyond
suggesting that
the department and the other respondents write a
letter to Mhlambi, J (which was copied to us), we do not know whether
the second
court order was issued by Mhlambi, J or simply by someone
in the registrar’s office.”
[18] The first respondent
was placed in possession of the transcribed record,
[10]
a copy of which was attached to the notice of the application for
leave to appeal. At the commencement of the hearing, Snellenburg
SC
addressed the court as follows:
“
Then, I will
just ask before my colleagues put themselves on record, that before
you proceed, to hear arguments, that you just give
us an opportunity
to address you on the manner, which we feel this matter must be
approached, after everybody is on record…M’Lord,
it is
quite simple. The third and fourth and fifth respondents in the
reactive challenge…have reached an agreement, with
the MEC, as
applicant in that application… with regards to an order that
we concede to, that he can take subject to two
very minor amendments.
And the first is then, paragraph 3 of that notice of motion. The
words in terms of
section 6
of the
Promotion of Administrative
Justice Act 3/2000 and
between brackets (PAJA). That is now the
reactive counter application. That is taken out, deleted. So, it will
simply read: an
order reviewing, setting aside the decision of the
applicant, acting in his capacity as the accounting officer of the
applicant,
in appointing the first to sixth respondents and it goes
on… Yes, that is removed and then prayer 6, paragraph 6. To
read
that the: an order directing the applicant to pay the third,
fourth and fifth respondents’ costs.”
[11]
[19] The amendments and
orders sought were granted.
[12]
It is apparent therefore that the order granted is reflected in
paragraphs 3 to 6 of “
the
second order”
.
The orders for the removal of both the application and the
counter-application are reflected on page 55 of the transcribed
record.
Condonation
[20] In its application
for condonation, the first respondent stated that “
Whatever
the judge intended to do on 29 April 2021, it was beyond dispute that
it led to great confusion and that confusion was
only resolved, not
even when the amended order was issued on or about 13 September 2021,
but when the Judge President clarified
the relationship of the
various orders in his letter of 17 September 2021
.”
[13]
It was further stated that the first respondent could not have been
expected to apply for leave to appeal before the clarification
was
provided and certainly not before or on 13 September 2021 when the
amended order appealed against was issued.
[14]
It
could not have applied for leave to appeal within 15 days of 29 April
2021 as it saw the amended order for the first time on
13 September
2021. This order was not granted in open court and was back-dated to
29 April 2021. Its attorneys disputed, as per
correspondence dated 21
July 2021, that no other order was granted by the court other than
the one that was in the court file,
striking the application off the
roll with costs.
[15]
[21] The first respondent
could also not apply for leave to appeal in May 2021 as the amended
order appealed against had not been
issued. It was therefore not in
wilful default. On 12 November 2021, I received a letter to the
effect that the applicant’s
application for leave to appeal was
filed on 4 October 2021 and that no date had been allocated for it to
be heard. There was no
need for the first respondent to bring a
condonation application as the order sought to be appealed against
was not granted on
29 April 2021. The letter was also forwarded to
the Judge President, seeking once again his intervention. I responded
in writing
and informed the attorneys that the application would not
be entertained before an application for condonation for leave to
appeal
was filed.
Analysis
[22] It would seem that
despite the first applicant’s protestation that it did not
delay in seeking leave to appeal, it sought
leave to appeal only on
the direction of the Judge President’s response to its
correspondence and that is when it regarded
the “
clock
to start running
.”
[16]
[23] The thrust of the
first applicant’s attack or
causa
in both the application for condonation and the compelling reason why
leave to appeal should be granted, is that the court did
not grant
the “
second
order
”
on 29 April 2021 and that there was no subsequent hearing where such
an order was granted.
[17]
[24] It was submitted on
behalf of the applicant and the three respondents that the first
respondent knew what the court order was
when it was made in court on
29 April 2021 and that the order existed before the applications were
struck off the roll. The first
respondent, it was submitted,
attempted to gain traction from the fact that there was initially no
typed order in the file and
later changed tack to
latch
onto
the erroneous
recordals
of
the
order.
[18]
The court order as
granted in court never changed and was simply not correctly typed by
the Registrar’s office.
[19]
I agree.
[25] It is evident from
the transcribed record that three orders were made on the same day,
namely, 29 April 2021. The first was
made before the various counsel
could present their arguments and the other two orders were made at
the close of arguments when
both
applications were struck off the roll for lack of urgency.
[20]
It is therefore disingenuous of the first respondent to state that it
was unaware of these orders on that day. The first respondent’s
presentation of the facts as shown in paragraph 16 above, is totally
flawed and misleading. The sequence of events is as set out
in the
transcribed record. There was no draft order that was presented to
the court, save the respondents’ oral request (which
was
granted) that the agreement between the parties is made an order of
the court.
[26] The first respondent
did not deny having received a copy of the transcribed record. It is
not denied that Snellenburg SC placed
the agreement between the
applicant, the third, fourth and fifth respondents on record
requesting that it be made an order of the
court. It is also not
denied that Grobbler SC enquired from the court whether the agreement
was made an order of the court. It
is also not denied that the
applicant’s counsel, Mr Luthuli, as well as the applicant’s
attorneys, were in court when
the order was made. It is clear that Mr
Luthuli was aware, as at the commencement of the proceedings and
before the various counsel’s
arguments were presented, and long
before the applications were struck from the roll for lack of
urgency, that the court had made
an order as requested by the
respondent’s counsel. The two other orders granted on that day
were the striking off of the
two applications towards the end of the
proceedings after the oral address by the various counsel.
[27] The court
proceedings and the transcript of 29 April 2021 make nonsense of the
first respondent’s stance, that it only
became aware of the
judgment on 13 September 2021 when the second order was brought to
its attention. The fact is that the agreement
between the parties was
made an order of the court. This order was neither revisited nor
changed from the time it was made to date.
Whether the order was
provisional or wrongly given, is neither here nor there. It was
incumbent on the first respondent or its
legal representatives, being
fully aware of the order, whether provisional or otherwise, to
proceed in terms of the rules to set
the order aside if aggrieved by
it. The first respondent failed to do so.
[28] The grounds
presented for the condonation application are forced, do not hold
water, and are in essence flawed. The application
for condonation
should therefore fail. In the circumstances, it behoves of me to
traverse the grounds of appeal as presented by
the first respondent.
Compelling
reasons for the application for leave to appeal to be heard
[29] The first ground
advanced for the application for leave to appeal to be heard, is, as
in the application for condonation, that
the court did not grant the
second order on 29 April 2021 and that there was no subsequent
hearing where such an order was granted.
There is no substance in
this proposition as indicated above and it stands to be rejected for
lack of substance. It was further
contended that the second order was
not granted in open court and that, at best, it could have been
granted in chambers in the
absence of the applicant, without
affording the applicant an opportunity to be heard. The contention is
unfortunate, lacks substance,
and should be dismissed for being
devoid of truth.
[30] The second ground is
that the court did not exercise its discretion judicially. It was
contended that the consent order granted
ameliorated the effect of
the auditor general’s findings against the department in
circumstances where the auditor general
was not cited as a
respondent. The granting of the second order was inconsistent with
the principles in
Eke vs. Parsons
as the court rubber-stamped
the consent order presented to it without considering whether it was
competent or appropriate. The first
respondent could only be bound by
the consent order if it elected to abide.
[31] The first respondent
failed to state how the court is alleged to have based the exercise
of its discretion on incorrect facts
or wrong principles of law.
[21]
The law demands that, when deciding a constitutional matter within
its power, a court must declare that any law or conduct that
is
inconsistent with the constitution is invalid to the extent of its
inconsistency and may make any order that is just and equitable.
[22]
The courts are therefore bound by the constitution to make a
declaration of invalidity when confronted with
unconstitutionality.
[23]
In
Eke vs
Parsons
[24]
the following was stated:
“
This in no way
means that anything agreed to by the parties should be accepted by a
court and made an order of court. The order
can only be one that is
competent and proper. A court must thus not be mechanical in its
adoption of the terms of a settlement
agreement. For an order to be
competent and proper, it must, in the first place “relate
directly or indirectly to an issue
or lis between the parties.
Parties contracting outside of the context of litigation may not
approach a court and ask that their
agreement be made an order of the
court.” Secondly, “the agreement must not be
objectionable, that is, its terms must
be capable, both from a legal
and a practical point of view, of being included in a court order”.
That means its terms must
accord with both the constitution and the
law. Also they must not be at odds with public policy. Thirdly, the
agreement must”
hold some practical and legitimate
advantage”.
[25]
[32] The basis for the
first respondent’s suggestion that the court failed to consider
whether the order was competent or
appropriate is not clear,
especially viewed from the background that the court had to traverse
the notices and the evidence presented
by way of affidavits contained
in the two applications which served before it on 29 April 2021.
[33] In
Bengwenyama
Minerals (Pty) Ltd and others vs. Genorah Resources (Pty) Ltd and
others (Bengwenyama-ye-Maswati Royal council intervening)
[26]
it was stated that a court, when considering whether to grant a just
and equitable remedy under
section 172(1)(b)
of the constitution, to
ameliorate the effect of a compulsory order in terms of
section
172(1)(a)
of the constitution, the rule of law must never be
relinquished, but the circumstances of each case must be examined in
order to
determine whether factual certainty requires some
amelioration of legality and, if so, to what extent. The approach
taken will
depend on the kind of challenge presented-direct or
collateral; the interests involved and the extent or materiality of
the
breach
of
the constitutional right to just administrative action in each
particular case.
[34] The order granted in
terms of the amended prayers 3 to 6 of the counter-application was
not mechanically made but made in line
with the prevalent
legislation, the current law, and the circumstances of the case. In
Big Five
Duty Free (Pty) Ltd vs. Airports Company South Africa Ltd and
others
[27]
,
it was stated that the court making the agreement an order of court
does
not
enter into the merits of the litigation: it must do no more than
satisfy itself that the agreement relates to the litigation
between
the parties and that it was not contrary to policy or the law. The
order made was both competent and proper.
[35] On a consideration
of the facts of the case, it was not necessary for the first
respondent to be bound by the consent order,
or to abide by it, as it
had no standing in respect of the other respondents’
contracts.
Its rights, relating to the contracts between it and the
department, remained intact.
Prospects
of Success
[36] In paragraph 23 of
its heads of argument, the first respondent queried the contents of
the Judge President’s letter
[28]
in that either the scenarios sketched therein could not stand up to
legal scrutiny and were not supported by the facts. It contended
that
it opposed the granting of the consent order because such an order
could not be lawfully granted. This submission, as shown
above, is
devoid of truth. There is no substance in the first respondent’s
contention that, to the extent that the court
found that the
application was not urgent, it could not enter the merits and grant
any order in that regard.
[29]
Firstly, the court did not enter the merits. Secondly, the first
respondent, it would seem, purposely twisted the facts and the
chronology in which the three orders were granted. It is clear from
the transcribed record that the orders striking off the applications
were granted after the agreement between the parties was made an
order of the court. Consequently, the submissions and arguments
made
under this heading are without substance.
Conclusion
[37] Both the
applications for condonation and leave to appeal are based on the one
incorrect fact that the consent order was not
granted on 29 April
2021. In the light of the above, there are no prospects that another
court would come to the conclusion that
such an order was not granted
on that day. Consequently, both applications should fail.
[38]
The following order is issued:
Order:
1. The applications for
condonation and leave to appeal are dismissed with costs, including
the costs of two counsel where employed
on behalf of the applicant,
third, fourth and fifth respondents.
_______________
JJ
MHLAMBI, J
Counsel
for the applicant:
Adv. L Bomela
Instructed
by:
State Attorney
10
th
Floor
Fedsure Building
49 Charlotte Maxheke
Street
Bloemfontein
Counsel
for the first respondent: Adv N Luthuli
Instructed
by:
Symington De Kok
169 Nelson Mandela Drive
Westdene
Bloemfontein
Counsel
for the third respondent: Adv N Snellenburg S
Instructed
by:
Peyper Attorneys
101 Olympus Drive
Helicon Heights
Bloemfontein
Counsel
for the fourth respondent: Adv S Grobler SC
Instructed
by:
Peyper Attorneys
101 Olympus Drive
Helicon Heights
Bloemfontein
Counsel
for the fifth respondent: Adv T Pienaar
Instructed
by: Peyper
Attorneys
101 Olympus Drive
Helicon Heights
Bloemfontein
[1]
2016(3)
SA 37 (CC); 2015 (11) BCLR 1319 (CC).
[2]
Bengwenyama
Minerals (Pty) Ltd and Others v Genorah Resources (Pty) Ltd and
Others (Bengwenyama-ye-Maswati Royal Council Intervening
)
2011 (4) SA 113
(CC); 201(30 BCLR 229 (CC).
[3]
Para
10.1 of the application for leave to appeal.
[4]
The
Mont Chevaux Trust v Tina Goosen and 18 Others
LCC
14R/2014.
[5]
School
Governing Body Grey College, Bloemfontein v Scheepers and Others
(South African Teachers Intervening) (2612/2018)
[2019] ZAFSHC 25
(17 January 2019).
[6]
Para 1 above.
[7]
See below.
[8]
Transcribed record on pages 6 and 7.
[9]
Isaacs v Williams en Ander 1993(2) SA 723 (NC), where it was held
that: “
An
order which was correctly made but incorrectly typed cannot be
corrected or amended in accordance with Uniform
Rule 42.
However, a
court has the inherent competence to correct the order so that it
corresponds with the order which it indeed made.”
See
also State vs. Wells 1990 (1) SA 816 (A).
[10]
Para
15.7: Founding affidavit of the condonation application.
[11]
Pages 2 – 4 of the transcribed record.
[12]
Lines 15 – 25 on Page 6 of the transcribed record.
[13]
Para
13: Founding affidavit- condonation application.
[14]
Paragraph
13: Founding affidavit- condonation application.
[15]
Paragraph 15.8 of the Founding Affidavit.
[16]
Paragraph 11 of the first respondent’s Heads of Argument on
page 8.
[17]
Paragraph 15.1 of the first respondent’s Heads of Argument.
[18]
Para 40: Respondents’ heads of argument.
[19]
Para 37: respondents’ heads of argument.
[20]
See pages 3, 6 and 55 of the transcribed record.
[21]
Paragraph 15.2.2 of the Heads or Arguments
[22]
Section 172(1) of the Constitution.
[23]
Department of Transport and Others vs. Tasima (Pty) Ltd
2017 (2) SA
622
(CC) para 147.
[24]
2016 (3) SA 37
(CC);
2015 (11) BCLR 1319
(CC) para 25.
[25]
Para 26, supra.
[26]
2011 (4) SA 113 (CC); 2011 (3) BCLR 229 (CC).
[27]
[2017] 4 ALL SA 295
(SCA) paragraph 17.
[28]
“LA 2”.
[29]
Paragraph 24.1 of the Applicants Heads of Argument.