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2022
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[2022] ZAFSHC 367
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HT Pelatona Projects (Pty) Ltd v Tswelopele Local Municipality and Others (2214/2022) [2022] ZAFSHC 367 (13 June 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION BLOEMFONTEIN
Reportable:
YES
Of
Interest to other Judges: NO
Circulate
to Magistrates: NO
Case
number: 2214/2022
In
the matter between:
HT
PELATONA PROJECTS (PTY) LTD
Applicant
And
TSWELOPELE
LOCAL MUNICIPALITY
First Respondent
BOITSHOKO
PERCIVAL DIKOKO N.O
Second Respondent
BOITSHOKO
PERCIVAL DIKOKO
Third Respondent
NSM
PROFESSIONAL SERVICES AND
Fourth
Respondent
GENERAL
PROJECTS
[as
joint venture partner of NSM Professional Service
And
general Projects JV Tamane Civils]
TAMANE
CIVIL CONSTRUCTION (PTY) LTD
Fifth Respondent
[as
joint venture partner of NSM Professional Service
and
general Projects JV Tamane Civils]
JUDGMENT
BY:
C REINDERS, ADJP
HEARD
ON:
10 JUNE 2022
DELIVERED
ON:
13 JUNE 2022
This
judgment was handed down electronically by circulation to the
parties' representatives by email, and release to SAFLII. The
date
and time for hand-down is deemed to be 08hOO on 13 JUNE 2022.
[1]
The applicant is HP Pelatona Projects (Pty) Ltd. The first respondent
is the Tselopele
Local Municipality (the "municipality'), whilst
the second and third respondents are the municipal manager of the
first respondent.
The fourth and fifth respondents are respectively
NSM Professional Services and General Projects (Pty) Ltd and Tamane
Civils (Pty)
Ltd, the two partners of the joint venture (the "JV")
as described in the heading. On 20 May 2022 under the same case
number the applicant brought an urgent application for an interim
interdict with immediate effect in terms whereof the respondents
be
interdicted and restrained from implementing or acting upon the
decision of the municipality to award a public tender in respect
of
the refurbishment of the sewer pump station in Bultfontein/Phahameng
to the fourth (then the second) and fifth (then the third)
respondents pending final adjudication of a review application to be
instituted.
[2]
The order issued on 23 May 2022 included, amongst others, the
following relief:
“
2.
Pending the final adjudication of a review application to be
instituted on/before 27 May 2022, the respondents
are interdicted and
restrained from in any way further implementing or acting upon the
decision of the first respondent to award
the public tender:
SCM/TSW/11/2021-2022: BULTFONTEIN/PHAMANG
Refurbishment of
Sewer Pumpstation
to the joint venture of second and third
respondents.
3.
The order in paragraph 2 above shall serve as an interim interdict
with immediate effect.
4.
Should the applicant fail to institute review proceedings as
contemplated in 2 above, paragraphs
2 and 3 of this order shall
lapse."
Daffue J further laid
down truncated periods with the aim of finalising the intended review
application as swiftly as possible within
such time frames. For
purposes of this judgment reference to the aforementioned prayers 2,
3 and 4 will be "the order'.
[3]
In adjudicating the matter Daffue J considered the four well known
requirements for
interim relief and comprehensively dealt with the
relevant case law. He dealt with the defences of the first
respondent. None of
the defences ostensibly relied upon included that
relief would amount to final relief. It was ostensibly amongst others
submitted
that the applicant therein had not proven any of the
requirements of an interim interdict. Those arguments have been
clearly rejected
and the court found the requirements of an interim
interdict to have been proven and granted the orders as aforesaid.
[4]
A notice of application for leave to appeal was filed by the first
respondent on 31
May 2022, prompting the application before me. It
suffices to say that the first respondent, having filed the
"application
for leave", on legal advice holds the view
that the order of Daffue J has final effect entitling it to note an
appeal against
the order, resulting in the suspension thereof based
on the provision of s18(2) of the Superior Court's Act 10 of 2013
(the "Act").
I do not intend to deal for purposes hereof
with the factual matrix herein safe to say that the applicant seeks
relief on an urgent
basis declaring that any steps taken by the
municipality and/or the JV to implement or act upon the first
respondent's decision
to award the public tender:
"SCM/TSW/11/2021-2022 Bultfontein/Phahameng Refurbishment
of Sewer Pump Station"
subsequent to the granting of the
court order, constitutes or shall constitute a breach of the said
order.
[5]
First respondent prays that the aforementioned relief claimed by
applicant be dismissed
with costs. Concomitantly it moves for a
suspension of the aforesaid interim relief in terms of s18(3) of the
Act pending the final
determination of the application for leave to
appeal.
[6]
In Pepcor Holdings Ltd and Others v AJVH Holdings (Pty) Ltd
2021
(5) SA 115
(SCA)
at para [16] the Supreme Court held that the
traditional requirements (that an order is not appealable because it
is not final
in effect) have been subsumed under the broader
constitutional "interest of justice" standard.
See also:
City of Tshwane Metropolitan Municipality v Afriforum and Another
[2016] ZACC 19
at paragraph
[40]
where reference was made to
National
Treasury and Others v Opposition to Urban
Tolling Alliance and
Others
[2012] ZACC wherein Moseneke DCJ (as he then was) set out
the principle as follows:
"This Court has
granted leave to appeal in relation to interim orders before. It has
made it clear that the operative standard
is 'the interests of
justice'. To that end, it must have regard to and weigh carefully all
germane circumstances. Whether an interim
order has a final effect or
disposes of a substantial portion of the relief sought in a pending
review is a relevant and important
consideration. Yet, it is not the
only or always decisive consideration. It is just as important to
assess whether the temporary
restraining order has an immediate and
substantial effect, including whether the harm that flows from it is
serious, immediate,
ongoing and irreparable."
The Deputy Chief Justice
also dealt with the role of separation of powers in relation to
appealability as follows:
"A court must also
be alive to and carefully consider whether the temporary restraining
order would unduly trespass upon the
sole terrain of other branches
of Government even before the final determination of the review
grounds. A court must be astute
not to stop dead the exercise of
executive or legislative power before the exercise has been
successfully and finally impugned
on review. This approach accords
well with the comity the courts owe to other branches of Government,
provided they act lawfully.
Yet another important consideration is
whether in deciding an appeal against an interim order, the appellate
court would in effect
usurp the role of the review court. Ordinarily
the appellate court should avoid anticipating the outcome of the
review except perhaps
where the review has no prospects of success
whatsoever."
[7]
During argument I was referred to the unreported judgment of Naidoo J
with a similar factual matrix. In
SS Mtakati v SH Ntombela N. O.
and
three others
(Case number: 1248/2021 delivered on 16
April 2021) the court had to adjudicate on the nature of an interim
interdict granted by
Mhlambi J. I had the privilege of reading the
reasoning of Naidoo J and I agree with the conclusions reached
therein.
[8]
In my view the very purpose of the order of Daffue J was to regulate
the
process pending the review. In doing so he considered all the
requirements of an interim order. The order clearly does not have
final effect nor does it dispose of any of the main disputes between
the parties. The administration of justice will fall into
disrepute
if a disgruntled in such circumstances can negate a court order by
merely filing some sort of notice of leave to appeal.
Where a party
feels disgruntled with an order which is clearly interim in nature,
it should in my view prompt an application in
terms of s18(2). The
present counter-application is nothing but an afterthought having
been faced with the relief sought by the
applicant herein. Even if I
am wrong in this view, I am not persuaded that the relief sought in
the counter-application should
be granted in these circumstances.
However, I clearly cannot find the first respondent to be acting
mala
fide
herein — I have to accept that it acts upon legal
advice negating
mala fides
.
[9]
For the reasons stated the counter-application cannot succeed. In
essence
I am required by the applicant to grant a declaratory order
herein. A High Court has a discretion to grant such an order. In
casu
l consider it to be appropriate to assume such jurisdiction and
to adjudicate therefore whether I should issue the declarator sought.
I am satisfied that prayer 2 of the Amended Notice of Motion should
be granted, however I am not prepared to grant a punitive cost
order
as sought in view of my finding of absence of
mala fides
. I
might add that the applicant also moved for orders that leave be
granted to it to supplement its papers to apply to this court,
should
it be necessary, for orders of contempt of court against the
municipal manager of the first respondent and the directors
of the
joint venture. I do not intend to grant such relief as the applicant
as
nuntius
does not need such leave.
[10]
Accordingly I make the following orders:
9.1
It is declared that the filing of the notice of application for leave
to appeal
dated 31 May 2022 does not have the effect of suspending
the operation of the court order dated 23 May 2022 under case number
2214/2022.
9.2
The counter-application is dismissed.
9.3
The respondent to pay the costs of the application and the
counter-application.
C.REINDERS,
ADJP
On
behalf of the Applicant:
Adv W
van Aswegen
Instructed
by:
Peyper
Attorneys
BLOEMFONTEIN
On
behalf of the first respondent:
Adv A
Ayayee
Instructed
by:
Majavu
Inc
c/o
Rampai Attorneys
BLOEMFONTEIN