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[2022] ZAFSHC 184
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Tswelopele Local Municipality v H T Pelatona Projects (Pty) Ltd (2214/2022) [2022] ZAFSHC 184 (3 August 2022)
IN THE HIGH COURT
OF SOUTH AFRICA,
FREE STATE
DIVISION, BLOEMFONTEIN
Case No.: 2214/2022
Reportable: YES/NO
Of Interest to other
Judges: YES/NO
Circulate to
Magistrates: YES/NO
In the matter between: -
TSWELOPELE
LOCAL MUNICIPALITY
Applicant
and
H
T PELATONA PROJECTS (PTY)
LTD
Respondent
CORAM:
N.M.
MBHELE, AJP
et
J.J. MHLAMBI, J
et
M. OPPERMAN, J
HEARD
ON:
25 JULY 2022
DELIVERED
ON:
03 AUGUST
2022
[
1] What gave rise to this appeal is an order
by a single Judge of this division declaring that the filing
of the
notice of application for leave to appeal by the appellants
(Municipality) does not have an effect of suspending an interim
order
granted on 23 May 2022 ( Interim interdict) in favour of the
respondent (Pelatona) and dismissing the municipality’s
counter
application.
Background
[2]
Pelatona approached the court a quo on urgent basis for the following
relief:
1.
That the applicant’s non-compliance with the Rules of Court in
relation to service
and time limits be condoned and the application
be heard as a matter of urgency in terms of the provisions of rule
6(12).
2.
That it be declared that any steps taken by the first respondent (the
“Municipality”)
and/or the fourth and fifth respondents
(collectively the “JV”) to implement or act upon the
Municipality’s decision
to award the public tender:
“
SCM/TSW/11/2021-2022 Bultfontein/Phahameng Refurbishment
of Sewer Pump Station”
(the “tender”)
subsequent to the granting of the order embodied in annexure A to
this notice of motion (the court order),
constitutes or shall
constitute a breach of the court order.
3.
That in the event of the Municipality taking any further steps to
implement or act upon its
decision to award the tender to the JV,
that the applicant be granted leave to approach the court, on the
same papers amplified,
if necessary, for an order finding the third
respondent in contempt and that she be imprisoned for a period of 1
(one) month, alternatively
that this court imposes upon her such
sentence as it considers appropriate.
4.
That in the event of the JV taking any further steps to implement or
act upon the Municipality’s
decision to award the tender to it,
that the applicant be granted leave to approach the court, on the
same papers amplified, if
necessary, for an order finding the
directors of the fourth and fifth respondents in contempt and that
they be imprisoned for a
period of 1 (one) month, alternatively that
this court imposes upon them such sentences as it considers
appropriate.
5.
That the Municipality be ordered to pay the costs of this application
on a scale as between
attorney and client. If any of the other
respondents oppose, then and in that event, that the opposing
respondents be ordered to
jointly and severally pay the costs of the
application, the one paying the other to be absolved, on a scale as
between attorney
and client.”
[3]
Concomintant with the above prayers the appellant moved for the
suspension of the
interim interdict pending the final determination
of the application for leave to appeal.
[4]
On 20 May 2022 Pelatona brought an urgent application before Daffue,
J in terms whereof
the Municipality would be interdicted or
restrained from implementing or acting upon its decision to award a
public tender in respect
of the refurbishment of the sewer pump
station in Phahameng township / Bultfontein to the then second and
third respondents pending
final adjudication of a review application
that was yet to be instituted.
[5]
The interim interdict granted by Daffue, J restrained the respondents
from in anyway
further implementing the decision of the Municipality
to award the public tender:
SCM / TSW/11/2021-2022: BULTFONTEIN/
PHAHAMENG
refurbishment of Sewer Pump Station to the joint
venture of the then second and third respondents.
[6]
On 31 May 2022 the Municipality lodged an application for leave to
appeal the interim
interdict. Subsequent to the filing of the
application for leave to appeal the Municipality allowed the then
second and third respondents
to execute their duties in terms of the
tender as awarded.
[7]
Pelatona approached the court a quo on urgent basis alleging that the
Municipality
and the then second and third respondents violated the
terms of the interim interdict and are therefore in contempt.
[8]
The Municipality resisted the contempt of court application and
raised a defence that
its actions were informed by legal advice it
received that the filing of the leave to appeal application suspended
the operation
of the interim interdict.
[9]
The court a quo did not grant the contempt of court application but
made a declaratory
order as stated above. Aggrieved by the
declaratory order granted by the court a quo, the Municipality
approached this court on
appeal in terms of section 18 (4) of the
Superior Courts Act ( SC Act). It is this declaratory order that is
the subject of this
appeal.
[10]
The municipality, in its notice of appeal and before us, contended
that the court a quo erred
in granting the declaratory order in view
of the fact that the interim interdict is not an interlocutory order
and that it has
the effect of a final judgment and order. It
contended, further, that Pelatona failed to allege on a balance of
probabilities it
would suffer irreparable harm if the court did not
order the execution of the order and that the municipality will not
suffer irreparable
harm if the court so orders. It contended,
further, that there are reasonable prospects of success on appeal.
[11]
The parties are at variance on the status of the
interim order. The question was whether it was automatically
suspended by the filing of the application for leave to appeal as
contemplated in Section 18 (1) of the SC Act or whether if falls
under section 18 (2). If it is found that the interim interdict falls
under Section 18(1) of the SC Act, its operation was automatically
suspended by the filing of the leave to appeal. If found to be
falling under Section 18(2) the second leg is to determine whether
it
is the interlocutory order which has the final effect. If it is found
to be lacking the effect of finality, it cannot be suspended.
[12]
The court a quo found that the interim interdict was merely aimed at
regulating the process pending
the review and that it has no final
effect as it does not dispose of the main dispute between the
parties. I must hasten to say
that the interim interdict in the
current matter was not incidental to the pending review. It was
brought separate from the pending
review proceedings. It had a life
of its own.
[13]
In his judgment, Daffue, J set truncated timelines
for the filing and adjudication of the review proceedings
to try and
ameliorate the effects of the interim interdict.
[14]
It is not in dispute that there are 6548 additional households in
Phahameng whose sanitary needs
are not catered for in the current
sewer reticulation network. The impugned tender process was aimed at
refurbishing and expanding
the capacity of the Bultfontein/Phahameng
sewage pumping station which is struggling to keep up with the inflow
of sewage from
various new developments. Sewer spillage have become
prevalent in Phahameng resulting in certain access points into the
township
unpassable. There is another ongoing project involving 1200
toilet structures which must be connected to the existing sewer pump
system which is barely coping.
[15]
Section18 (1) to (3) of the
Superior Courts Act 18 of 2013
,
provides that
:
“
(1)
Subject to subsections (2) and (3), and unless the court under
exceptional circumstances orders otherwise, 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.
(2)
Subject to subsection (3), unless the court under exceptional
circumstances orders otherwise, the operation
and execution of a
decision that is an interlocutory order not having the effect of a
final judgment, which is the subject of an
application for leave to
appeal or of an appeal, is
not
suspended pending the decision
of the application or appeal.
(3)
A court may only order otherwise as contemplated in subsection
(1) or (2), if the party who applied
to the court to order otherwise,
in addition proves on a balance of probabilities that he or she will
suffer irreparable harm if
the court does not so order and that the
other party will not suffer irreparable harm if the court so orders.”
[16]
Although the issue of the appealability of the
interim interdict is yet to be determined by a Court seized
with the
Application for leave to appeal it is apposite to deal with whether
the interim interdict is final in effect or not for
the purpose of
determining this appeal. In
Zweni
v Minister of law and Order
[1]
the court set out the guidelines for an order that is final in effect
as follows:
“
A
‘judgment or order’ is a decision which as a general
principle, has three attributes, first the decision must be final
in
effect and not susceptible of alteration by the Court of first
instance; second, it must be definitive of the rights of the
parties;
and, third, it must have the effect of disposing of at least
substantial portion of the relief claimed in the main proceedings….
”
[17]
It is well established that the constitutional
interests of justice requirement takes precedence over the
common law
standard of appealability. In
National
Treasury And Others v Opposition to Urban Tolling Alliance
[2]
the Constitutional Court observed that while Courts were reluctant to
hear appeals against interim orders which had no final effect
and
which were to be reconsidered when final relief was to be determined,
this rule was not an inflexible one. Thus, the question
of whether an
appeal against an interim order should be entertained depends on the
interests of justice standard to be considered
on a case-to-case
basis. The court remarked as follows:
“
[24]
It is so that courts are rightly reluctant to hear appeals against
interim orders that have no final effect and that in any
event are
susceptible to reconsideration by a court when the final relief is
determined. That, however, is not an inflexible rule.
In each case,
what best serves the interests of justice dictates whether an appeal
against an interim order should be entertained.
That accords well
with developments in case law dealing with when an appeal against an
interim order may be permitted.
[25] 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.
[26] 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.”
[18]
The effects of the interim interdict on the community of Phahameng is
further delay to access
to proper and adequate sanitation which is a
basic right. The community at Phahameng continues to live with sewer
spillage and
faecal waste running in their streets on daily basis
pending all these court processes.
[19]
The argument that the municipality failed to keep up with the
population growth and to supply
proper sewer system timeously does
not address the harzadous health standards and the indignity
confronting the community of Phahameng
currently. The effects of the
interim order on the community are irreversible. One day without
proper sanitation is unbearable.
[20]
It is so that Government procurement was entrenched in the
constitution to ensure transparency,
fairness and competitiveness but
the right to protection of economic interests must, in my view, be
weighed against the right to
dignity, health and adequate sanitation
when determining which party would be worse off if the interim
interdict persists.
[21]
It is clear from the above that the interim interdict granted on 23
May 2022 falls within the
purview of Section(18) (1) of the SC Act
and that the counter application by the Municipality was not
necessary. The appeal ought
to succeed.
[19]
It is for the above reasons that the following order was issued on 03
August 2022:
1.
The appeal succeeds
2.
The order of Reinders, ADJP dated 13 June
2022 is set aside and replaced with the following order:
1)
The application for contempt of court by the applicant is dismissed;
2)
The counter application by the first respondent is struck off the
roll
3)
Each party to pay its own costs.
N.M. MBHELE, AJP
I concur.
J.J. MHLAMBI, J
I concur.
M. OPPERMAN, J
Appearances:
For the
Applicant:
Adv. Notshe, SC
with Adv Ayayae
Instructed by Hill
McHardy & Herbst Inc.
Bloemfontein
For the
Respondent:
Adv. J. W. Steyn
Instructed by FJ Senekal
Inc.
Bloemfontein
[1]
Zweni
v Minister of Law and Order
1993 (1) SA 523
at 532J- 533A
[2]
National
Treasury and Others v Opposition to Urban Tolling Alliance ( CCT 38
/ 12)
[2012] ZACC 18