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[2019] ZAGPPHC 20
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Indwe Aviation (Pty) Ltd v Minister of Environmental Affairs and Another (14576/2017) [2019] ZAGPPHC 20 (6 February 2019)
IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)
(1)
NOT
REPORTABLE
(2)
NOT OF
INTEREST TO OTHER JUDGES
(3)
REVISED.
Case
number:
14576/2017
Date:6/2/2019
In
the matter between:
INDWE
AVIATION (PTY) LTD
APPLICANT
And
MINISTER
OF ENVIRONMENTAL AFFAIRS
1
ST
RESPONDENT
ULTIMATE
HELI (PTY)
LTD
2
ND
RESPONDENT
JUDGMENT
(APPLICATION FOR LEAVE TO APPEAL)
PRETORIUS
J,
(1)
Both
the first and second respondents, in the court
a
quo,
launched applications for leave
to appeal, albeit on different grounds. The first respondent,
firstly, requests condonation for
the late filing of its leave to
appeal application. Should condonation be granted, then the first
respondent applies for leave
to appeal as set out in the application
for leave to appeal.
(2)
The
first respondent, the Minister of Environmental Affairs, applies for
leave to appeal against the findings on the facts by the
court,
whilst the second respondent takes issue with the remedies that were
granted.
(3)
Both
respondents argued that leave to appeal should be granted in terms of
section 17(1)(a)(i) of the
Superior
Courts Act
[1]
as, according to them there are
reasonable prospects of success in the appeal and the issues in the
appeal will have a practical
effect or result.
CONDONATION:
(4)
Judgment
in this application was delivered on 27 November 2018. According to
the Uniform Rules of Court the respondents had 15 days
to apply for
leave to appeal the judgment. The last day to do so was 19 December
2018.
(5)
The
application for leave to appeal was only served and filed on 23
January 2019 - 22 days late. The reasons are set out in the
affidavit
as being due to the holiday period, the annual leave of certain
officials, who had knowledge of the matter and who had
to issue
instructions and the absence of the State Attorney delayed the filing
of the application for leave to appeal. It is so
that all this
occurred during the holiday period, but there is no real explanation
as to what had ensued from 27 November 2018
until 22 December 2018.
(6)
The
second respondent filed an application for leave to appeal timeously.
This fact the court has to take into consideration, as
there would be
an application for leave to appeal by the second respondent, in any
event.
(7)
Counsel
for the applicant argued that should the court grant condonation and
leave to appeal, it would cause the matter to be moot,
as an appeal
would, most probably, not be heard before the contract expires in
2021. The argument is that a party, by delaying
court processes, can
stretch a matter until the contract runs out through effluxion of
time. I cannot agree that a court has to
take into consideration,
when making decisions, how long it will take for an appeal to be
heard, due to congestion of court rolls.
Special arrangements are
made quite often to accommodate appeals, where it is necessary.
(8)
I
have considered all the arguments, as well as what will be in the
interest of justice, and the reasonable prospect of success
the
second respondent may have, should leave to appeal be granted. In
these circumstances, I am of the opinion that condonation
must be
granted to the first respondent, as I intend granting leave to appeal
to the second respondent. I am of the opinion that
there is a
reasonable prospect that another court may come to a different
conclusion in this application.
(9)
Therefor
I make the following order:
1.
Condonation
for the late filing of the application for leave to appeal, is
granted to the first respondent;
2.
Leave
to appeal is granted to both the first and second respondents; to the
Full Bench of the High Court, Gauteng Division (Pretoria);
3.
Costs
to be costs in the appeal.
Judge
C Pretorius
Case
number
: 14576/2017
Matter
heard on
: 1 February 2019
For
the Applicant
: Adv M
Chaskalson
SC Adv C
Tabata
Instructed
by:
Ramsay Webber Incorporated
For
the 1
st
Respondent
: Adv C Janse van Rensburg
Instructed
by
: The State Attorney
For
the 2
nd
Respondent
: Adv A Subel SC
: Adv K Hofmeyr
Instructed
by
: Terry Mahon Attorneys
Date of
Judgment
: 6 February 2019
[1]
Act 10 of 2013