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[2022] ZAMPMBHC 91
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VR Cargo (Pty) Ltd and Others v Thaba Chweu Local Municipality and Others (1092/2020) [2022] ZAMPMBHC 91 (12 January 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
MPUMALANGA
DIVISION, MBOMBELA (MAIN SEAT)
CASE
NUMBER: 1092/2020
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: NO
REVISED.
12/01/2022
In
the application for leave to appeal between:
VR
CARGO (PTY)
LTD
First Applicant
HEYMANS
KOLE GROUP (PTY)
LTD
Second Applicant
REINHARDT
TRANSPORT GROUP (PTY) LTD
Third Applicant
RS
REGAL
CC
Fourth Applicant
SIYASIMTHA
SERVICES (PTY) LTD
T/A
SNN TRANSPORT
Fifth Applicant
SHOSHOLOZA
PLANT HIRE
CC
Sixth Applicant
BHD
PLANT RENTALS (PTY)
LTD
Seventh Applicant
4PL
FLEET (PTY)
LTD
Eighth Applicant
And
THABA
CHWEU LOCAL
MUNICIPALITY
First Respondent
MINISTER
OF POLICE
Second Respondent
THE
MEC OF PUBLIC WORKS,
ROADS
AND
TRANSPORT,
MPUMALANGA
Third Respondent
THE
SOUTH AFRICAN NATIONAL ROADS
AGENCY
SOC LIMITED
Fourth Respondent
JUDGMENT
– LEAVE TO APPEAL
GREYLING-COETZER
AJ
NOTA:
IS IT REALY INTERPETATION ISSUE
INTRODUCTION
[1]
The applicants were
unsuccessful in obtaining a final interdict against the first- and
second respondents interdicting them from
preventing the applicants
heavy motor vehicles from using the R36 and R37 roads through
Lydenburg, Mpumalanga.
[2]
It was held that the
applicants failed to show that they have a clear right to utilize the
R36 and R37 roads thereby justifying
the granting of a final
interdict. The application with accordingly dismissed with costs.
[3]
The applicants now apply for leave to appeal to
the Full Court of the Mpumalanga Division of the High Court against
the whole of
the judgment so granted on 29 May 2020. The application
for leave to appeal is accompanied by an application for condonation
for
the late filing of the application. The condonation application
is being opposed by the first respondent.
[4]
The facts of this case are set out in the main
ex tempore
judgment and need not be repeated herein.
Although
all the applicants initially sought leave to appeal, at the date of
the hearing, the second-, third- and eight applicants
had since
withdrawn their application for leave to appeal. Therefore, any
reference herein to the “applicants”, shall
mean the
first-, fourth-, fifth-; sixth- and seventh applicants.
[5]
The application for leave to appeal was filed
approximately one month late. The said application for leave to
appeal was also delayed
by what appears to be a lack of appreciation
of the process applicable in circumstances where leave to appeal is
sought against
a judgment which was granted
ex
tempore
. On aforesaid being
addressed, the application was further delayed by the unavailability
of the parties’ legal representatives,
and later the extended
attempts to settle the matter between the parties. After several
postponements for the purpose of settlement,
which at the time
appeared to be not only in the interest of both parties but justice,
settlement could not be reached. A hearing
date was agreed upon and
the parties filed their heads of argument.
CONDONATION
APPLICATION
[6]
Condonation is not a mere formality. An
applicant for condonation must fully explain the delay and show that
the time frames provided
for in the rules of court were not wilfully
disregarded.
[7]
The applicants are obliged to satisfy the court
that there is sufficient or good cause for excusing them from
compliance. Condonation
may be refused where there has been a
flagrant breach of the rules, especially where no explanation is
professed. The applicants
should convince the court to exercise its
discretion in their favour.
[8]
An application for condonation should be
brought without delay and as soon as possible once an applicant
realises that he or she
had not complied with the rules of court. It
is not to say where non-compliance was due entirely to the neglect by
an applicant’s
attorneys of record, that condonation will be
granted.
[9]
From
authorities such as
Mulaudzi
v Old Mutual Life Insurance Company (South Africa) Ltd and Others;
National Director of Public Prosecution and Another
v Mulaudzi
[1]
and Melane v Santam Insurance Co Ltd
[2]
it can be distilled that a court has a discretion in respect of
condonation applications which should be exercised judicially.
There
ought to be fairness to both sides.
[10]
Relevant facts to consider include
inter
alia
the degree of lateness and
non-compliance; the explanation offered by the applicant; the
prospect of success; the interest of the
respondent in the finality
of the judgment and unnecessary delay in the administration of
justice as well as the importance of
the case.
[11]
Factors should not be considered individually
but as part of an objective conspectus of all the facts. If there are
no prospects
of success, there would be no point in granting
condonation. A slight delay and a good explanation may assist to
compensate for
prospects of success which are not strong. The
importance of the issue and the strong prospects of success tend to
compensate for
a long delay.
[12]
The
ex tempore
judgment in this matter was delivered on 29 May 2020. The application
for leave to appeal was due by 22 June 2020. The notice of
application for leave to appeal is dated 21 July 2020. The delay is
therefore approximately one month. The condonation application
was
launched simultaneously.
[13]
The reason for the delay was explained to be
that notwithstanding the fact that the judgment was granted
ex
tempore
with reasons on 29 May 2020,
the applicants’ legal representative deemed it prudent to
obtain what he termed to be a “written
judgment”. This
the applicants did on the basis that the typed order which the
applicants received from the Registrar on
5 June 2020 was, according
to the applicants, a judgment without reasons.
[14]
It goes without saying that this approach is
misguided. Based on this erroneous understanding what ensued was a
multitude of e-mail
correspondences between the Registrar and/or
judge’s secretary and the applicants’ legal
representatives. The applicants’
legal representative on the
one hand attempted to persuade the Registrar and/or judge’s
secretary that the applicants are
entitled to a written judgment,
placing reliance on Rule 49, supported with what purported to be a
Rule 49(1)(c) notice requesting
reasons but couched in terms provided
for in the Magistrate Court Rules and the Registrar or judge’s
secretary on the other
explained that the ex tempore judgment was
handed down with reasons in the presence of the legal representative.
And further that
as a compact disc containing the recording of the
ex
tempore
judgment had already been
made available to the applicants, it is the latter’s
responsibility to have same typed and to present
the typed judgment
to the court for signature This would the constitute the “written
judgment” they seek.
[15]
The Rule 49(1)(c) notice was similarly filed in
error as it was not only reflective of the position the Magistrates
Court rules
but the matter was not finalised in terms of Rule
49(1)(c), nor were the reasons outstanding as the reasons were
provided on 29
May 2020 in the format of an
ex
tempore
judgment.
[16]
It was explained that this back-and-forth
resulted in the delay, and after consultation with counsel during
July 2020, it was decided
to file the application for leave to
appeal. Pursuant thereto and ostensibly founded on the earlier
advices by the Registrar and/or
judge’s secretary, the
ex
tempore
judgment was typed and
presented to the court for signature.
[17]
In the answering affidavit the
first respondent
submitted that the applicants enjoy no good prospects of success and
dismally failed to deal with the jurisdictional requirements
in their
condonation application.
[18]
Against the facts, applicable principles and
authorities set out herein above, I am of the view that condonation
ought to be granted.
[19]
Turning to the application or leave to appeal.
Section 17
of the
Superior Courts Act 10 of 2013
regulates an
application for leave to appeal from a Division of the High Court,
and reads as follows:-
“
17
LEAVE TO APPEAL
(1)
Leave to appeal my 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.
(b)
The decisions sought on appeal does not fall within the ambit of
Section 16(2)(a)
and
(c)
where the decision sought to be appealed does not dispose of all the
issues in the case, the appeal would lead to a just and
prompt
resolution of the real issues between the parties.
”
[20]
The standard of reasonable prospects of success
have been developed by our courts over time. It is now specifically
set out as per
above. Previously applications for leave to appeal
were governed by
Section 20(4)(b)
of the
Superior Courts Act 10 of
2013
and
Rule 49
, both of which dealt exclusively with the practical
aspects of leave to appeal applications.
[21]
In the current form
Section 17
provides that
leave to appeal may be granted only where the judge is of the opinion
that the appeal
would
have a reasonable prospect of success, or if there is some other
compelling reason why the appeal should be heard. This is a more
stringent approach than before, and so the bar to qualify for leave
to appeal has been raised. The word “
only
”
means that leave to appeal may be granted in the stated circumstances
only. What this means practically is that a greater
measure of
certainty that a different outcome would be reached, is required.
[22]
The essence of the applicants grounds relied on
for leave is founded thereon that this court misdirected itself in
finding that
the applicants did not enjoy a clear right to utilise
the R36 and R37 through-roads.
[23]
Clause 48 of the applicable bylaw specifically
prohibits the operation of a heavy vehicle on any street except:
(a)
upon the streets set out in a register kept by the Director:
Technical Services whereby certain streets are established as heavy
vehicle routes;
(b)
while such heavy vehicle is making collections or deliveries,
provided that the driver or operator proceeds by the most direct
route to or from the point of collection or delivery as the case may
be, to or from the nearest heavy vehicle route;
(c)
while such heavy vehicle is proceeding to or from the business
premises of the owner, driver or operator of the heavy vehicle,
provided that the driver or operator proceeds by the most direct
route to or from the business premises, to or from the nearest
heavy
vehicle route;
(d)
while such heavy vehicle is proceeding to or from a garage for the
purpose of repairs, servicing or refuelling, provided that
the driver
or operator proceeds by the most direct route to or from the garage
as the case may be, to or from the nearest heavy
vehicle route;
(e)
while such heavy vehicle is engaged in work and in service of the
municipality,
[24]
It
was contended that another court could reasonably interpret clause 48
of the bylaw differently and in a more sensible business-like
manner.
[3]
In doing so, the
argument when, another court might find that clause 48, in
conjunction with clauses 4.2 and 50 of the bylaws,
and against the
backdrop of the National Roads Traffic Act 93 of 1996, placed an
obligation on the first respondent to allocate
certain streets as
heavy vehicle roads; to keep a register of such roads and to display
signs indicating the heavy vehicle roads
through the municipality,
and that a failure by the first respondent to do so does not equate
to no streets inside the municipal
boundaries to be used by heavy
vehicles.
[25]
But that the bylaws are open to the
interpretation that absent a street register indicating routes on
which heavy vehicles may operate,
all roads qualify. Therefore the
applicants have established a clear right to use and drive their
heavy vehicles on the R36 and
R37. Differently put, the applicants
contend that clause 48, which provides for the circumstances under
which heavy vehicles can
use the R36 and R37 through-roads through
Lydenburg, can also be interpreted to mean that where no heavy
vehicle routes have been
established in light of the obligation
placed on the first respondent in terms of clause 4 of the bylaw, all
roads can be used
by heavy vehicles. Therefor the applicants have
established a clear right to use the municipal roads through
Lydenburg.
[26]
It was argued that the former is the only
sensible interpretation. I don’t agree. The interpretation
argued for suggests that
all roads are to be regarded heavy vehicles
routes until the respondents established that only certain are heavy
vehicles routes.
This seems to inter alia ignore the common cause
fact that the R36 and R37 are class 4 and 5 roads, whereas heavy
vehicles normally
require class 1 roads. Further and as correctly
conceded by the applicants in their heads of argument, clause 48 is
clearly intended
to prevent heavy vehicles from using routes through
Lydenburg and to direct heavy vehicle traffic along roads or routes
designed
for said purpose. The R36 and R37 are not such roads.
[27]
In opposition it was argued on behalf of the
first respondent that the applicants have no right, let alone a clear
right, to use
the municipal roads without compliance with the
applicable laws and permissions from the municipality.
[28]
On the applicants own contentions another court
could interpret the bylaws differently. It needs to be established
that another
court would. After careful consideration of the
applicants’ stated grounds for leave to appeal and the
submissions and arguments
made in support thereof, I am not persuades
that another court would employ a different interpretation and as
such that the appeal
would have a reasonable prospect of success.
CONCLUSION
[29]
Having concluded as aforesaid, the following
order is made: -
1.
The applicants’ failure to
timeously file this application for leave to appeal is condoned.
2.
The application for leave to appeal is
dismissed with costs.
GREYLING-COETZER
AJ
DATE
OF HEARING:
4 November 2021
DATE
OF JUDGMENT:
12 January 2022
FOR
THE APPLICANTS:
Advocate Kruger
Instructed
by J Terblanche Attorneys Inc
E-mail:
admin@jtattorneys.co.za
FOR
THE FIRST RESPONDENT:
Advocate HW Sibuyi SC
Instructed
by Raphela Attorneys Inc
E-mail:
violet@raphelainc.co.za
[1]
2017
(6) SA 90 (SCA)
[2]
1962
(4) SA 537 (A)
[3]
In this
respect the applicants relied on the matter of
Natal
Joint Municipal Pension Fund v Endumeni Municipality
2012 (4) SA 593
(SCA).