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[2021] ZANCHC 45
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Scarliweb (Pty) Ltd t/a Cooling Solution Projects and Another v Sdtrade (Pty) Limited and Others (1953/2020) [2021] ZANCHC 45 (10 September 2021)
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IN
THE HIGH COURT OF SOUTH AFRICA
NORTHERN
CAPE DIVISION, KIMBERLEY
Case
No:
1953/2020
Heard:
07/09/2021
Delivered:
10/09/2021
In
the matter between:
SCARLIWEB
(PTY) LTD t/a COOLING SOLUTION
PROJECTS
1st Applicant
ROBURN
CONSTRUCTION
CC
2nd Applicant
and
SEDTRADE(PTY)
LIMITED
1st Respondent
SOL
PLAATJE
MUNICIPALITY
2nd Respondent
AECOM
SOUTH
AFRICA
3rd Respondent
STANDARD
BANK OF SOUTH
AFRICA
LTD
4th Respondent
JUDGMENT:
APPLICATION FOR LEAVE TO APPEAL
Mamosebo
J
[1]
This is an opposed application for leave to appeal to the Full Bench
of
this Division against the whole of my judgment and orders granted
on 30 July 2021. For convenience, the applicant will be referred
to
as "Sedtrade" while "Scarliweb" and "Roburn"
will jointly be referred to as the respondents.
[2]
Despite the fact that Sedtrade has listed 8 paragraphs, some of which
have subparagraphs, as appearing in the Notice of Application for
Leave to Appeal, in substantiation of its submission that the
Court
erred in its findings, the main argument relied on essentially
involves whether I was correct in confirming para 2.4 of the
rule
nisi
and further ordering payment of "the amounts
due" when there was no quantification of the said amounts. The
rest of the
grounds are, in my view, intertwined with the mentioned
grounds and form part of Sedtrade's argument.
[3]
The test
for an application
for
leave to
appeal is
governed
by
section
17(1) of
the Superior Courts Act
[1]
,
which has raised the threshold of
the test
for leave to appeal. The applicant must demonstrate to the
Court that
there are reasonable prospects that the appeal would
succeed.
Our courts have already interpreted the phrase "would",
found in
section
17(l)(a)(i)
of the Act, as indicative of some form of
certainty
or realistic chance of success
[2]
•
The applicant brought this
application
in terms of s 17(1)(a)(i) alleging reasonable prospects of success.
[4]
The reason why the respondents approached this court on an
ex
parte
and urgent basis, seeking a rule
nisi,
was to secure
their payment. The matter was first before Williams J who granted the
rule and later Tlaletsi JP who, by agreement
between the parties,
modified the rule by discharging clause 3 thereof and ordering the
parties to report on the extent of the
resolution of the dispute on
the return date. Meanwhile, the parties obtained the adjudicator's
award which assertively found against
Sedtrade for penalising the
respondents for their 11 day delayed completion of work concluding
that the Subcontract should prevail
and the quantum of the penalty
should be zero. To argue, as Sedtrade does, that there was no
quantification of the amounts and
because the papers were not
amplified, is in my view, putting form over substance. I found the
adjudicator's award to be adequate
in complying with Tlaletsi JP's
clause 4 of the order. Couched differently, the adjudicator's report
was sufficient to address
the underlying dispute, having regard to
the relevant certificates already issued in favour of the
respondents.
[5]
The main judgment has, in my view, effectively dealt with para 2.4
taking
into consideration the submissions by both counsel from para
14 of the judgment. Of more importance, which seems to be overlooked
by Sedtrade, is that once the adjudicator's award was noted, the
parties are bound by it. I mentioned in my judgment, para 19 that
the
actual figures can be found in the parties' records and certificates.
The reason why I delved into the figures, without determining
what
the actual quantities were, was to respond to the submissions made by
Mr Grabler and to clarify my reasoning as recorded at
paras 15, 16,
17, 18 and 19. What the applicant is doing now by bringing the same
argument is nothing less than obfuscating.
[6]
Mr Grabler,
invoked
Kernsia
17
[3]
in
trying to persuade me that the applicants' application served as both
the pleadings and the evidence upon which they relied.
The
Kernsia
case,
more particularly the paragraph relied on in this argument, does not
help Mr Grobler's case. In the
Kernsia
case
the court was faced with a determination whether a loan agreement
involving a company contravened s 38(1) of the Companies
Act
[4]
or not. The SCA held that s 38 is fact-based
and it
could not
make a
finding
without
the facts.
The facts are distinguishable from the facts in the case before me.
As stated in my main judgment, once the adjudicator's
award was
before court, the dispute pertaining to whether the respondents
were
entitled to payment, was resolved. As to the rands and cents, that
was an exercise I said can be entertained by the parties.
There
was and
still is, in my view, no need for the respondents to have amplified
their papers or to amend their notice of motion. I reject
such a
claim
as
unsubstantiated.
[7]
Mr Grabler
has essentially attacked the reasons for my decision as
a basis for
the application for leave to appeal while Ms Bester, counsel for the
respondents, stated that she agreed with the judgment
and orders of
the Court. Leach JA, in
Khumalo
[5]
made
the following remarks, which were endorsed by the Constitutional
Court in
Baliso
[6]
:
"[4]
An appeal lies against an order that is made by a court and not
against its reasons for making the order."
[8]
Having dispassionately considered each ground raised by the applicant
in an effort to determine whether there are reasonable prospects that
another court would come to a different finding than this
court whose
judgment is sought to be appealed against, I have not found any. In
the result, the application for leave to appeal
stands to fail.
[9]
The following order is made:
The
application for leave to appeal is dismissed with costs.
M.C.MAMOSEBO
JUDGE
OF THE HIGH COURT
NORTHERN
CAPE
DIVISION
For
the Applicant:
Adv. S Grobler SC
Instructed
by:
Haarhoffs Inc
For
the Respondents: Adv. R Bester
Instructed
by:
Engelsman Magabane
Inc
[1]
10 of 2013
[2]
The Mont Chevaux Trust v Tina Goosen & 18 Others 2014 JDR 2325
(LCC) at para 6; MEC for Health, Eastern Cape v Mkhitha and
Another
[2016] ZASCA 176
(25 November 2016) at paras 16-17 and Notshokovu v
S
[2016] ZASCA 112
(7 September 2016) at para 2
[3]
Absa Bank v Kernsia 17 (Pty) Ltd
2011 (4) All SA 113
(SCA) at para
23
[4]
61 of1973
[5]
South African Reserve Bank v Khumalo
2010 (5) SA 449
(SCA) at 451
para 4
[6]
Baliso v Firstrand Bank Ltd t/a Wesbank
2017 (1) SA 292
(CC) at 296
E