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[2022] ZAFSHC 93
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Nketoane Local Municipality v Rudnat Projects CC and Others (2870/2013) [2022] ZAFSHC 93 (9 May 2022)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number:
2870/2013
Reportable:
YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/ NO
In
the matter between
:
NKETOANE
LOCAL MUNICIPALITY
Applicant
and
RUDNAT
PROJECTS
CC
1
st
RESPONDENT
PHUMELELE
LOCAL MUNICIPALITY
2
nd
RESPONDENT
SETSOTO
LOCAL MUNICIPALITY
3
rd
RESPONDENT
DIHLABENG
LOCAL MUNICIPALITY
4
th
RESPONDENT
CORAM:
NAIDOO, J
HEARD
ON:
25 FEBRUARY 2022 (Virtually)
DELIVERED
ON
:
9 MAY 2022
JUDGMENT
– APPLICATION FOR LEAVE TO APPEAL
[1]
This is an application for Leave to Appeal against the whole of the
judgment granted
against the applicant in this matter, which was
delivered on 22 October 2021. The hearing of the application was held
virtually
on 25 February 2022. Adv R Shepstone appeared for the
applicant and Adv P S Grobler SC for the first respondent For
convenience,
I will refer to the applicant as Nketoane and the first
respondent as Rudnat.
[2]
The judgment was assailed on a
number of grounds, which in essence are that the court erred
in:
2.1
finding that Nketoane conducted itself in a manner that points to the
conclusion of a (tacit)
agreement, for the implementation of the
Implementation Readiness Report (IRR), whereas Rudnat did not plead
facts or conduct to
found a tacit agreement, nor did it lead evidence
to this effect. In addition the court erred in not applying the test
enunciated
in the matter of Buffalo City Municipality v Nurcha
Development Finance (Pty) Ltd and Others 2019(3) 379 (SCA);
2.2
drawing the inference from the conduct of the parties that there was
consensus between them
as this was directly contradicted by the
Rudnat’s witness, Mr Wagenaar. The test in Buffalo City
Municipality should have
been applied;
2.3
not finding that Rudnat failed to allege and prove a tacit contract
between the parties,
as Rudnat had pleaded that the parties concluded
a written contract and failed to prove such a contract;
2.4
relying on the Funding Agreement “purportedly” concluded
between Nketoana and
the Department of Water Affairs, as this
agreement was not referred to in the pleadings nor proven in
evidence;
2.5
finding that Rudnat had proved the quantum of its claim, instead of
finding that Rudnat
had failed to prove the terms of the contract
purportedly concluded between it and Nketoane.
[3]
The judgment in this matter deals with the aspect that a tacit
agreement was pleaded
in Rudnat’s Particulars of Claim, and,
flowing from that, the conduct of Nketoane which led to the finding
that Rudnat had
proved that a tacit agreement had come into existence
between the parties. I should perhaps deal with the allegation that
the court
did not apply the test set out in Buffalo
City
Metropolitan Municipality v Nurcha Development Finance (Pty) Ltd
2019(3) SA 379 (SCA)
to determine if a tacit agreement had come into existence. The SCA
said at para [16] that “
The
test for establishing the intention of the parties to conclude a
tacit contract is now settled” and
cited
with approval the case of
Butters
v Mncora
2012
(4) SA 1 (SCA)
([2012]
ZASCA 29
where
the court had this to say: “This appeal is about an alleged
tacit agreement. As in all such cases, the court searches
the
evidence for manifestations of conduct by the parties that are
unequivocally consistent with consensus on the issue that is
the crux
of the agreement and, per
contram,
any indication which cannot be reconciled with it. At the end of the
exercise, if the party placing reliance on such an
agreement is to
succeed, the court must be satisfied,
on a conspectus of all the
evidence
, that it is more probable than not that the parties were
in agreement, and that a contract between them came into being in
consequence
of their agreement.” (my underlining)
[4]
I
n para [20], the SCA succinctly stated
the test as follows:
“
There
appears to me to be no reason why the onus of proof should be more
burdensome for the party alleging a tacit contract than
in other
civil matters. I do not see why, as a matter of legal policy, the
onus should be greater. And in
Butters
,
the court was unanimous in finding that the party alleging a tacit
contract need prove unequivocal conduct giving rise to an inference
of consensus on a balance of probabilities.”
[5]
The judgment in this matter sets out in detail the manner in which
Rudnat became involved
in the matter, the work that was done by it
for Nketoane, and the conduct of Nketoane for several years, which
indicated that it
had intended to contract the services of Rudnat and
acted in accordance with such intention. This was set out extensively
by Ms
Crawley and also confirmed by Mr Wagenaar. The latter’s
opinion on the legal position is not binding on this court, which
is
obliged to decide the matter by applying the law to the facts as they
appear from the papers and the evidence. Therefore, Mr
Wagenaar’s
opinion that the absence of a written contract or letter of
appointment, resulting in Nketoane not being liable
for payment of
services rendered by Rudnat, is not correct. His evidence was clear
that he requested the letter of appointment
from Nketoane on several
occasions but none was forthcoming, but continued rendering services,
in the belief that the requested
letter would be provided. Nketoane
continued to engage with and accept the services of Rudnat.
[6]
In detailing the above position in the judgment, as corroborated by
the papers, the
court was satisfied that Rudnat had proved, on a
balance of probabilities, that Nketoana’s unequivocal conduct
gave rise
to the inference that there was consensus on its part to
contract with Rudnat. Nketoane continued to use the services of
Rudnat,
consulted with it for technical assistance and paid Rudnat
for such services, after the IRR prepared by Rudnat was accepted.
Nketoane
failed to lead any evidence to gainsay the evidence of
Rudnat or its version in respect of the documentation filed and which
it
relied upon.
[7]
With regard to the legal position relating to an application for
leave to appeal,
both parties correctly pointed out that Section 17
of the Superior Courts Act 10 of 2013 (the Act), now regulates the
test to be
applied in an application for leave to appeal. The
relevant provisions of section 17(1) provide 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;”
(my emphasis and underlining).
[8]
Previously, an applicant was merely required to show that there is a
reasonable possibility
that another court, differently constituted,
would find differently to the court against whose judgment leave to
appeal is sought.
It is clear from section 17(I), set out above, that
the situation is now somewhat different, and an applicant for leave
to appeal
is required to convince the court that there is a
reasonable prospect of success and not merely a possibility of
success. In the
matter of
The Mont Chevaux Trust v Tina Goosen +
18 2014 JDR LCC,
Bertelsmann J held that:
“
It
is clear that the threshold for granting leave to appeal against a
judgment of a high court has been raised in the new Act. The
former
test whether leave to appeal should be granted was a reasonable
prospect that another court might come to a different conclusion….The
use of the word ‘would’ in the new statute indicates a
measure of certainty that another court will differ from the
court
whose judgment is sought to be appealed against.”
Mont
Chevaux has been followed in a number of decisions. See
Matoto v
Free State Gambling and Liquor Authority (4629/2015)
[2017] ZAFSHC 80
(8 June 2017)
, The Full Court in
Acting National Director of
Public Prosecutions and Others v Democratic Alliance (19577/2009)
[2016] ZAGPPHC 489 (24 June 2016)
also cited Mont Cheveau with
approval.
[9]
As I indicated the reasons for the order of the court in this matter
are fully set
out in the judgment. It is my view that based on those
reasons and what I have said above, another would not come to another
conclusion.
It is, therefore, my view that the respondent does not
enjoy a reasonable prospect of success on appeal.
[10]
In the circumstances the following order is made:
The application for leave
to appeal is dismissed with costs
S
NAIDOO J
On
behalf of the 1st Defendant:
Adv RC Shepstone
Instructed
by:
Lawrence Melato Attorneys
c/o
Hendre Conradie Inc
(Roussouws
Attorneys)
119
Pres Reitz Avenue
Westdene
Bloemfontein
(Ref:
Mr JH Conradie)
On
behalf of the 1
st
Respondent:
Adv S Grobler SC
Instructed
by:
Peyper Attorneys
101
Olympus Drive
Helicon
Heights
Bloemfontein
(Ref:
Ms S Meades)