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[2021] ZAMPMBHC 32
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Mpumalanga Economic Growth Agency v Nemorango Consulting Engineers CC (2029/2020) [2021] ZAMPMBHC 32 (22 July 2021)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(MPUMALANGA
DIVISION, MBOMBELA)
(1)
REPORTABLE:NO
(2)
OF INTEREST TO OTHER JUDGES
:NO
(3)
REVISED: YES
22/07/2021
CASENO:
2029/2020
In the matter
between:
MPUMALANGA
ECONOMIC GROWTH AGENCY
Applicant
and
NEMORANGO
CONSULTING ENGINEERS CC
Respondent
JUDGMENT
MASHILE J:
[1]
This is an application for leave to appeal the order and judgment of
this Court granted
on 25 May and reasons thereof supplied on 10 June
2021 respectively. The order and judgment concerned application to
condone delivery
of a plea and counterclaim after a
provisional sentence claim had become final and the Applicant in
principle barred from
taking any further step. The finality of the
provisional sentence claim notwithstanding, the Applicant still
proceeded to deliver
a plea and counterclaim. The Respondent objected
to this on the ground that it constituted an irregular step as
intended in Uniform
Rule of Court 30(1) in consequence of which he
launched proceedings requiring the Applicant to withdraw the plea and
counterclaim.
[2]
On 21 May 2021, the Applicant served its Notice of Intention to
Oppose the application
in terms of Rule 30(1). No affidavit was
filed in support of the Notice of Intention to Oppose. Instead, on 24
May 2021 the Applicant
delivered the application for
condonation of the irregular step. The Court considered the
application and satisfied
that it lacked merit, dismissed it with
costs. The Court went on to deliberate on the Rule 30(1), which was
not opposed and directed
that the delivery of the plea and
counterclaim indeed constituted an irregular step and set it aside.
The leave to appeal pertains
to the condonation application and the
irregular step order and judgment are not impugned.
[3]
The question that arises is, should the Court grant leave to appeal
given these
simple background facts, which
the Applicant would have this Court believe require aberrant solution
despite their plainness. It
is settled that the question whether or
not to grant leave to appeal is regulated by the provisions of
Section 17(1)
of the
Superior Courts Act, 10 of 2013
, which lays down
that:
"Leave to appeal may 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 decision 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.”
[4]
This Court is particularly interested in the provisions of
Section
17(1)(a)(i)
and (1)(b). To a very large extent therefore I will
limit the Court’s interest to those provisions. The Court must,
however,
not be construed to be proposing that the other provisions
do not find application. The idea is merely to isolate the most
relevant
provisions of the Section so that the Court can arrive at a
solution effortlessly.
It
has been stated that an applicant for leave to appeal must convince
the Court that there is a reasonable prospect of success
on appeal
and that the success of such an application depends on, amongst
others, the prospects of eventual success of the appeal
itself. The
Court hearing the application for leave to appeal must be of the
opinion that another court will differ from its judgment.
See
,
Zuma v Democratic Alliance
[2021] ZASCA 39
of
13 April 2021
and
The
Mont Chevaux
Trust v Tina Goosen and 18 Others
2014 JDR 2325 (LCC).
[5]
For the Applicant to have succeeded in its application for
condonation it would have
had to show that it had satisfied all the
requirements
for condonation. Those are
the following:
5.1
A full and reasonable explanation for the failure to comply;
5.2
Prejudice if condonation is not granted and absence of prejudice as
far as the Respondent
is concerned;
5.3
Prospects of success in the main proceedings; and
5.4
The interests of justice must favour the granting of condonation.
[6]
It is trite that these must be met conjunctively. Thus, demonstration
that an applicant
has satisfied one or two of these will not suffice.
In the circumstances, it might be prudent for this Court to single
out one
of these requirements to show the respects in which it was
not satisfied. One such requirement that the Applicant clearly did
not
establish is existence of reasonable prospects of success in the
main case. Showing that no reasonable prospects of success exist
in
the main case will necessarily mean that there are no reasonable
prospects that another court would reach a different decision
from
that of the Court
a quo
.
[7]
The Applicant did not challenge the application to set aside the
irregular step. As
a result, judgment in favour of the Respondent was
granted and it stands. The Applicant reasoned that the application
for condonation
of the irregular step would undo not only the
judgment in the irregular step application but it will also have the
effect of reversing
the provisional sentence judgment. This is
completely fallacious as the provisional sentence has become final.
Concomitant with
the finality of the judgment is payment of the
amount that the Applicant had undertaken to pay by 16 November 2020.
[8]
This Court is not sitting as a court of appeal. Its powers are not as
wide as to reconsider
the judgment or order of Sigogo AJ. Thus, I
have to agree with the Respondent that if the Court were to
condone the irregular
step, it will not have any practical effect
because condonation is not an appropriate manner of challenging a
court order. An order
of court can be rescinded and set aside or it
can be set aside on appeal and be substituted for a decision of the
Court of appeal.
That said, it would appear that the Applicant has
missed the opportunity of appealing the order of Sigogo AJ. Moreover,
it also
seem that the Applicant did not have any defence to the
irregular step application as a result of which the order granted in
that
respect too presents an insurmountable hurdle for the Applicant.
[9]
Leave to appeal is refused on two grounds. Firstly, no reasonable
prospects exist
that another court would reach a different decision
from that of this Court. Secondly, even if condonation were to be
granted,
which would in itself be irregular, it would have no
practical effect because condonation does not constitute a manner of
challenging
a court order. In the result, it is befitting to make the
following order:
The leave to appeal
is dismissed with costs.
B A MASHILE
JUDGE OF THE HIGH
COURT OF SOUTH AFRICA
MPUMALANGA
DIVISION, MBOMBELA
This judgment was
handed down electronically by circulation to the parties and/or
parties’ representatives by email. The date
and time for
hand-down is deemed to be 22 July 2021 at 10:00.
APPEARANCES:
Counsel for the
Applicant:
Adv VS Notshe SC
Instructed by:
Obert Ntuli Inc
Counsel for the
Respondent: K
Tsatsawane SC
Instructed by:
Merrrs Weavind & Weavind Inc
Date of
Hearing:
13 July 2021
Date of Judgment:
22 July
2021