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[2022] ZAECGHC 37
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Algoa Bus Company (Pty) Ltd v Nelson Mandela Bay Metropolitan Municipality and Others (2202/2019) [2022] ZAECGHC 37 (26 April 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
[EASTERN
CAPE DIVISION: GRAHAMSTOWN]
CASE
NO. 2202/2019
In
the matter between:
ALGOA
BUS COMPANY (PTY) LIMITED
Applicant
and
NELSON
MANDELA BAY METROPOLITAN MUNICIPALITY
1
st
Respondent
SPECTRUM
ALERT ITS (PTY) LIMITED
2
nd
Respondent
ALGOA
TAXI
ASSOCIATION
3
rd
Respondent
NORTHERN
AREAS TAXI ASSOCIATION
4
th
Respondent
MEMBER
OF THE EXECUTIVE COUNCIL FOR TRANSPORT
AND
PUBLIC WORKS EASTERN
CAPE
5
th
Respondent
MINISTER
OF
TRANSPORT
6
th
Respondent
JUDGMENT
JOLWANA
J:
[1]
On 15 February 2022 I delivered a judgment (the judgment) in which I
dismissed the plaintiff’s action as a consequence
of my
dismissal of the plaintiff’s condonation application for its
non-compliance with section 7(1) of PAJA. In its notice
of
application for leave to appeal the plaintiff lists no less than 37
grounds for seeking leave to appeal on the basis of which
it is
contended that the appeal would have a reasonable prospect of success
and that there are compelling reasons on the basis
of which the
appeal should be heard regard being had to what the plaintiff calls a
public interest factor in the action.
[2]
I do not intend to deal with each ground of appeal line by line as
doing so would lead to the inevitable regurgitation of my
reasons in
arriving at the conclusion that I did which are contained in my
judgment. I will, however, deal with some of the grounds
of appeal
essentially to deal with what I consider to be the main grounds of
appeal. I must hasten to indicate that I have considered
all of the
grounds of appeal.
[3]
The agreement, the Vehicle Operating Agreement (annexure “POC3”)
and the failure of the first defendant to furnish
a copy of such
agreement to the plaintiff despite numerous requests made by the
plaintiff to the first defendant to furnish it
with a copy thereof
has been adequately dealt with in the judgment. The plaintiff has not
dealt with its failure to invoke the
remedies that were readily
available. Its failure to invoke any of the available remedies should
not excuse it from having to comply
with PAJA and institute legal
action within a reasonable time and not later than 180 days. The
plaintiff could neither explain
nor come with a single cogent reason
why it did not do so. That on its own was an implicit acknowledgment
that such remedies were
in fact available. The fact that instead of
invoking any of those remedies for example, interdicting the buses
from operating pending
an urgent review application and/or seeking an
urgent court order to be furnished with an agreement on the basis of
which the buses
were operating for example but persisted in sending
invoices to the first defendant says a lot. In electing to send
invoices it
sought to be paid compensation while allowing the amount
claimed to accumulate over time in circumstances where the payment
would
be in lieu of the plaintiff not raising the issue of the
illegality of the contract or non-compliance with section 41 of the
Act
is indeed troubling to say the least. When the action was
instituted the amount of compensation claimed had accumulated to more
than twenty six million rand. This is more so that the plaintiff came
before court citing breach of legality as the basis for its
entitlement to compensation.
[4]
The plaintiff is in the situation in which it is of having failed to
comply with section 7 (1) of PAJA because it opted not
to seek
remedies and apply to court timeously to have the contract set aside.
Instead it continued to send invoices and in that
process ignored the
provisions of PAJA to the extent that it was required to institute
review proceedings within 180 days. I simply
do not think that the
interests of justice required that the plaintiff be granted
condonation nor is there a public interest in
it being granted
condonation. I also see no public interest in the determination of
the alleged failure of the first defendant
to comply with section 41
of the Act in circumstances where the plaintiff choose the option of
sending invoices instead of instituting
review proceedings within the
period prescribed in PAJA. This, in my view, is especially so in
circumstances in which the plaintiff
was always of the view that
first defendant contravened the provisions of section 41 in
introducing the buses or allowing the second
defendant to operate
them on its routes. The contract now sought to be reviewed and set
aside has run its course.
[5]
The plaintiff relies on its contention that its delay should have
been overlooked on the basis that section 172 of the Constitution
enjoins a court to declare invalid without hesitation any law or
conduct that is inconsistent with the Constitution. The submission
seems to be that it matters not what the delay is and the reasons
therefor, as long as there is a suggestion or evidence that there
was
non-compliance with a legislative provision, a court must overlook
the delay. There a number of problems with this approach.
The first
one is that the reasons for the delay play a very crucial role in the
discretion that the court must exercise in deciding
whether or not to
condone. It clearly cannot be that the reason for the delay becomes
irrelevant once the basis for the review
is an alleged non-compliance
with a statutory provision. I certainly do not understand that to be
our jurisprudence on condonation
applications in general.
[6]
In
Notyawa v Makana Municipality and Others
2020 (2) BCLR 136
(CC) paragraph 48-49 the Constitutional Court said:
“
While not taking
issue with the approach followed by the High Court, relying on
Gijima
Mr Notyawa contended that despite the unreasonable delay, the High
Court should have entertained the review application. It is
apparent
from the judgment in
Gijima
that a court has discretion to overlook a delay. And that the
discretion must be exercised with reference to facts of a particular
case which warrant the overlook.
The nature and extent of
the illegality raised in respect of the impugned decision constitutes
a weighty factor in favour of overlooking
a delay. Where, as in
Gijima
and
Tasima1
, the illegality stems from a serious
breach of the Constitution, a court may decide to overlook the delay
in order to uphold the
Constitution, provided the breach is clearly
established on the facts before it. This flows from the obligation
imposed by section
172 (1) (a) of the Constitution which requires
every competent court to declare invalid law or conduct that is
inconsistent with
the Constitution.”
[7]
Our jurisprudence on the question of whether or not a delay could be
overlooked is that the discretion of the court to overlook
or not to
overlook a delay in an appropriate case is still applicable even
where the review relates to non-compliance with a legislative
prescript. That the discretion must be exercised with reference to
the facts of a particular case. An assessment must be made on
whether
or not on the facts of a particular case it is in the interests of
justice to overlook a delay. The question of the seriousness
of the
alleged breach of the Constitution is also part of the overall
considerations and a very weighty factor in the court’s
exercise of its discretion.
[8]
It is troubling that the plaintiff was prepared to allow what it
calls a serious breach of the Constitution to continue if it
was
compensated. Even when it was not being compensated and its invoices
were in fact being ignored it still took no action within
the
timelines provided for in PAJA. Its reluctance and ultimate failure
to institute the review proceedings timeously was largely
influenced
by its willingness to accept compensation that would flow from the
first defendant’s alleged contravention of
section 41 of the
Act. This is an attitude of a party that is not certain of its legal
entitlement to compensation and whose commitment
to the rule of law
is wavering at best. The contention that it was lulled into a false
sense of security is difficult to understand.
How could there have
been any sense of security based on non-compliance with the law? The
entitlement of the plaintiff to rely
on the so called undertaking to
pay compensation has no firm legal basis as there was no contractual
agreement stipulating the
terms on which the first defendant would be
liable to pay compensation and how it would be calculated and for
which routes. As
a country we can ill afford to blow hot and cold or
vacillate between the north and the south poles on the fundamental
constitutional
principle of the rule of law.
[9]
The impugned contract has since expired by effluxion of time having
run its course. Even if the non-compliance was clearly established
it
remains relevant in my view that it would have been committed in the
spirit of trying to put the small role players like the
taxi industry
and possibly other small bus operators in a position where they would
be prepared for the planned integrated public
transport network. This
was the evidence of the plaintiff’s own witness. In this regard
the bona fides of the first defendant
even on the plaintiff’s
own evidence are not in doubt and in fact are admitted. This aspect
of the first defendant’s
case makes this case distinguishable
from any of the cases referred to by the plaintiff. This is more so
if regard is had to the
very provisions of section 41 which enjoin
contracting authorities to have regard to the promotion of the
economic empowerment
of small business or persons previously
disadvantaged by unfair discrimination.
[10]
Whether or not it would have been correct for the first defendant to
assist the small role players in the transport sector
in that manner
is a different matter. Even if it were to be established that there
was a contravention of section 41 its bona fides
in the alleged
contravention would minimise the seriousness of the alleged
constitutional violation in my view. That must be considered
together
with the reasons for the delay on the part of the plaintiff and the
fact that the delay led to the contract that is sought
to be declared
invalid expiring after having been implemented in full. All of these
considerations are part of the factual matrix
that inform as they
must, the discretion of the court on whether or not the delay should
be overlooked. They do not lose relevance
merely because a statutory
provision may have been contravened.
[11]
The contention that it was not up to this Court to also consider the
prospects of success of the plaintiff in its claim for
damages cannot
be correct in my view. In deciding whether or not a delay should be
overlooked the prospects of success for the
plaintiff in claiming
damages is a very relevant consideration. It would make no sense for
the court to overlook the delay and
allow the plaintiff to go ahead
with its case in circumstances where its prospects of success may be
in serious doubt. The prospects
of success are, as they must be, a
weighty consideration as well. This is more so where the
consideration involves not just a factual
enquiry in proving damages
but an assessment of whether or not as a matter of law the plaintiff
may or may not be entitled to claim
damages. If the plaintiff might
be entitled to claim damages its prospects of success are severely
limited if they exist at all
on the facts of this case. The plaintiff
has not pleaded a firm legal basis for claiming compensation beyond
alleging losses that
it says are as a result of the contravention of
section 41.
[12]
For these reasons the plaintiff’s prospects success on appeal
are at best arguable and there are no compelling reasons
why the
appeal should be heard. I do not see any public interest in a claim
for damages which is what ultimately the plaintiff’s
case is
all about. Its argument for constitutional probity is undermined
quite severely by its own prepararedness to accept compensation
in
exchange for turning a blind eye to what it contends, was statutory
contravention. That approach would shake the fundamental
underpinnings of the constitutional principle of the rule of law if
its violation were to be countenanced in exchange for compensation.
[13]
In
MEC for Health
,
Eastern Cape v Mkhitha and Another
(1221/2015)
[2016] ZASCA 176
(25 November 2916) Sclippers AJA stated
the test as follows:
“
[16] Once again it
is necessary to say that leave to appeal, especially to this court’s
must not be granted unless there truly
is a reasonable prospect of
success.
Section 17
(1) (a) of the
Superior Courts Act 109 of 2013
makes it clear that leave to appeal may only be given where the judge
concerned is of the opinion that the appeal would have a
reasonable
prospect of success, or there is some other compelling reason why it
should be heard.
[17] An applicant for
leave to appeal must convince the court on proper grounds that there
is a reasonable prospect or realistic
chance of success on appeal. A
mere possibility of success, an arguable case or one that is not
hopeless is not enough. There must
be a sound rational basis to
conclude that there is a reasonable prospect of success on appeal.”
[14]
On the facts of this case I am not convinced that the plaintiff
enjoys reasonable prospects of success on appeal. I cannot
find any
compelling reason why the appeal should be heard.
[15]
In the result the following order will issue:
1.
The application for leave to appeal is dismissed with costs including
costs occasioned by the employment of two counsel.
M.S.
JOLWANA
JUDGE
OF THE HIGH COURT
Appearances:
Counsel
for the plaintiff: A. BEYLEVELD SC
Instructed
by: WHEELDON RUSHMERE & COLE INC.
GRAHAMSTOWN
Counsel
for the defendant: O.H. RONAASEN SC with L.N. NTSEPE
Instructed
by: MACI INCORPORATED c/o MQEKE ATTORNEYS
GRAHAMSTOWN
Date
heard : 30 March 2022
Delivered
on : 26 April 2022