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[2021] ZAGPPHC 204
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Collins Sebola Financial Services (Pty) Ltd v South African Forestry Company SOC (Ltd) and Others (21375/20) [2021] ZAGPPHC 204 (12 March 2021)
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IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
Case
No: 21375/20
REPORTABLE:NO
OF
INTEREST TO OTHER JUDGES:NO
REVISED
In
the matter between:
COLLINS
SEBOLA FINANCIAL SERVICES (PTY) LTD
APPLICANT
(
1
st
Respondent
in the application for leave to appeal)
and
SOUTH
AFRICAN FORESTRY COMPANY SOC LTD
FIRST RESPONDENT
(
Applicant
in the application for leave to appeal)
TSEPO
MOHANENG
SECOND RESPONDENT
CLEMENT
NHUVUNGA
THIRD RESPONDENT
THE
CHAIRPERSON OF THE BID SPECIFICATION
COMMITTEE
OF THE FIRST RESPONDENT IN
RESPECT
OF THE RFB 011/2019
FOURTH RESPONDENT
THE
CHAIRPERSON OF THE BID EVALUATION
COMMITTEE
OF THE FIRST RESPONDENT IN
RESPECT
OF THE RFB 011/2019
FIFTH RESPONDENT
THE
CHAIRPERSON OF THE BID ADJUDICATION
COMMITTEE
OF THE FIRST RESPONDENT IN
RESPECT
OF THE RFB 011/2019
SIXTH RESPONDENT
PHEPHA
MV SECURITY SERVICE
SEVENTH RESPONDENT
THE
CHAIRPERSON OF THE AUDIT COMMITTEE
OF
THE FIRST RESPONDENT
EIGHTH RESPONDENT
THE
CHAIRPERSON OF THE FINANCIAL
COMMITTEE
OF THE FIRST RESPONDENT
NINTH RESPONDENT
PHUTHADICHABA
TRADING ENTERPRISE CC
TENTH RESPONDENT
JUDGMENT
(APPLICATION
FOR LEAVE TO APPEAL)
BASSON
J
[1]
This is an application for leave to appeal against the
judgment of this court, handed down on 14 January 2021 in favour of
the respondent
(in the application for leave to appeal - Collins
Sebola Financial Services (Pty) Ltd, Registration Number: […]).
Despite
the fact that the matter has an element of urgency to it, it
took the applicant (in the application for leave to appeal - South
African Forestry Company SOC Ltd) three weeks to file their heads of
argument.
[2]
The applicant has raised various grounds for leave to appeal
all of which are dealt with by the respondent in its heads of
argument.
I do not intend repeating all the grounds for leave to
appeal. My judgment speaks for itself. I have, however, considered
all of
the grounds raised in the application for leave to appeal and
the response thereto by the respondent.
[3]
The
test for leave to appeal is now trite and the
merits
of the application for leave to appeal must be considered against the
background of the test for leave to appeal. Section
17(1)(a)(i) of
the Superior Courts Act
[1]
have raised the threshold for grating leave to appeal. Bertelsmann, J
in
The
Mont Chevaux Trust (IT2012/28) v Tina Goosen & 18 Others
[2]
explains:
"[6]
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, see
Van
Heerden v Cronwright & Others
1985
(2) SA 342
(T)
at 343H. 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."
[4]
The
Supreme Court of Appeal in
S v
Smith
[3]
also had occasion to consider what constituted reasonable prospects
of success in terms of section 17(1)(a)(i):
"[7]
What the test of reasonable prospects of success postulates is a
dispassionate decision, based on the facts and the law,
that a court
of appeal could reasonably arrive at a conclusion different to that
of the trial court. In order to succeed, therefore,
the appellant
must convince this court on proper grounds that he has prospects of
success on appeal and that those prospects
are not remote, but
have a realistic chance of succeeding. More is required to be
established than that there is a mere possibility
of success, that
the case is arguable on appeal or that the case cannot be categorised
as hopeless. There must, in other words,
be a sound, rational
basis for the conclusion that there are prospects of success on
appeal."
[5]
There must therefore exist more than
just a mere possibility that another court will, not might, find
differently on both facts
and law.
[6]
I
have considered my judgment against the grounds for leave to appeal.
I am not persuaded that there are reasonable prospects of
success on
appeal. I am in particular not swayed by the submission that the
applicant had reserved the right to appoint more than
one service
provider per region and therefore that this somehow affords the
applicant the right to make a decision that militates
against the
provisions of the Preferential Procurement Policy Framework Act (“the
PPPFA”).
[4]
[7]
In the event the application for
leave to appeal is dismissed. The respondent submitted that costs
should be granted on a punitive
scale in light of the applicant’s
tardiness in filing its heads of argument. I am in agreement. It is
clear from the papers
and the order of this court that there existed
a measure of urgency in finalizing this matter. The applicant filed
their heads
of argument more than three weeks after the delivery of
the application for leave to appeal. A punitive costs order is
therefore,
in my view, warranted.
[8]
The respondent also urged this court
to vary its order to impose a date for the handing over of the tender
from the seventh respondent
to the first respondent. I am not
inclined to do so in the absence of full argument on this aspect from
both parties. The order
in paragraph 3 regarding the handover is
clear:
“
3.
The first respondent is ordered to administer a reasonable and
expeditious handover from the seventh respondent to the applicant.”
[9]
In the event the following order is made:
“
The
application for leave to appeal is dismissed with costs on an
attorney and client scale, such costs to include the costs of
senior
counsel where so employed.”
AC
BASSON
JUDGE
OF THE HIGH COURT
GAUTENG
DIVISION OF THE HIGH COURT, PRETORIA
Electronically
submitted therefore unsigned
Delivered:
This judgment was prepared and authored by the Judge whose name is
reflected and is handed down electronically
by circulation to the
Parties/their legal representatives by email and by uploading it to
the electronic file of this matter on
CaseLines. The date for
hand-down is deemed to be 12 March 2021.
Case
number:
21375/2020
Matter
considered on the papers:
APPEARANCES
For
the Applicant:
VINCENT MALEKA SC
Instructed
by:
AGRIPPA MPUNGOSE
AT MPUNGOSE AND DLAMINI
INC
For
the Respondent:
ADV Q PELSER
Instructed
by:
HURTER SPIES INC
[1]
Act 10 of 2013.
[2]
2014 JDR 2325 (LCC).
[3]
2012
(1) SACR 567
(SCA).
[4]
Act
5 of 2005.