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[2019] ZAGPPHC 286
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Joint Venture Between Aveng (Africa) Pty Ltd and Strabag International GmbH v South African National Roads Agency Soc Ltd and Another (8331/19) [2019] ZAGPPHC 286 (17 May 2019)
IN THE HIGH COURT OF SOUTH
AFRICA
GAUTENG DIVISION, PRETORIA
(1)
Reportable: No
(2)
Of interest to other judges: Yes
(3)
Date heard: 14/05/19
(4)
Date delivered: 17/05/19
CASE NO: 8331/19
In the matter between:
JOINT
VENTURE BETWEEN AVENG (AFRICA) PTY LTD
AND
STRABAG INTERNATIONAL GmbH
Applicant
and
SOUTH
AFRICAN NATIONAL ROADS
AGENCY
SOC LTD
First Respondent
LOMBARD
INSURANCE COMPANY LIMITED
Second Respondent
JUDGMENT
ON LEAVE TO APPEAL
MAKHUVELE J
[1]
After making positive findings on the question as to whether
SANRAL is bound
to comply with the terms of the building contract
before it can present the construction guarantees for payment, I
nevertheless
proceeded to dismiss the relief sought in the Notice of
Motion on the basis that the applicant was unlikely to succeed in the
intended
dispute resolution proceedings with regard to its right to
cancel the contract on the basis that there was a state of
force
majeure.
[2]
This application for leave to appeal is mainly based on the approach
that
I adopted in reaching my decision to dismiss the application.
The main Issue is that I should not have made findings of fact with
regard to the existence of the dispute beca1,1se the
prima
facie
right that the applicant
sought to protect was the proper implementation of the terms of the
contract.
[3]
In essence, the argument in this application for leave to appeal is
that
I should not have gone beyond answering the legal question with
regard to the independence or autonomy of the construction
guarantees.
[4]
This being an application for leave to appeal, I am not required, at
this
stage, to justify my judgment or offer an interpretation thereof
but only to consider whether there is substance
in
the arguments advanced by the
applicants that would justify granting leave to appeal.
[5]
Section 17(1)
of the
Superior Courts Act, No 10 of 2013
reads as
follows:
"
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
”
[6]
Section 16(2)(a)
referred to in
section 17(1)(b)
refers to the issues
that would have no practical effect or result at the time of hearing
of the appeal. The issues arising from
this matter do not fall in the
ambit of this subsection.
[7]
Whilst I continue to believe that the approach that I adopted was
correct,
I am also of the view that there is substance in the
argument that the
prima facie
right
that would have entitled the applicant to the relief sought is the
very legal question that I have answered in its favour,
but decided
that it was not disposive of the application because of the
difficulties relating to existence of the state of
force
majeure.
[8]
Should the approach that I have adopted in reaching my decision be
incorrect
as contended for by the applicant, it means that the
application would have succeeded on the basis of the pronouncements
that I
made on the legal questions arising from what is referred to
as the
'lacuna'
that
has been left open in the judgment of Cloete JA in the matter of
Kwikspace Modular Buildings Ltd v
Sobodala Mining Co SARL and Another
2010 (6) SA 477
(SCA).
[9]
I am therefore satisfied that the arguments advanced on behalf of the
applicant have substance and are important and do meet the threshold
for granting of leave to appeal. Furthermore, I agree with
the
submissions that they deserve the attention of the Supreme Court of
Appeal. The first respondent's counsel also agreed that
should the
application be successful, leave to appeal should be granted to the
Supreme Court of Appeal.
[10]
Under the circumstances, I make the following order;
[10.1]
Th e applicant is granted leave to appeal the whole of the judgment
and order to the Supreme Court of Appeal.
[10.2] The costs of
this application shall be costs in the appeal.
TAN Makhuvele
Judge of the High Court
APPEARANCES
Appearances:
Applicant:
Advocate JG Wasserman SC
Instructed
by:
Pinsent Masons South Africa Inc
Sandton
JOHANNESBURG
First Respondent:
Advocate
CE Watt-Pringle SC
Advocate A Glendinnlng
Advocate S Tshiklla
Instructed by:
Cliffe Dekker Hofmeyr Inc
Sandton
JOHANNESBURG