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[2019] ZAGPPHC 198
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Slaughter and Others v Municipal Infrastructure Support Agent (36596/2016) [2019] ZAGPPHC 198 (31 May 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
(1)
REPORTABLE:
YES
/NO
(2)
OF
INTEREST TO OTHER JUDGES:
YES
/NO
(3)
REVISED
Case No: 36596/2016
31/5/2019
In
the matter between:
ROBERT
SLAUGHTER
First Applicant
SHAHIT
WADVALLA
Second Applicant
REGINALD
LEGOABE
Third Applicant
STEVEN
NJIRI
Fourth Applicant
and
MUNICIPAL
INFRASTRUCTURE SUPPORT AGENT
Respondent
JUDGMENT
AND ORDER IN TERMS OF RULE 42(1)(b)
HF JACOBS, AJ:
[1]
On 31 May 2019 I was informed by the
Registrar that my judgment of 30 May 2019 contains a typing error as
the respondent is shown
as the applicant and the applicants as the
respondents.
[2]
In terms of Rule 42(1)(b) I hereby
correct the typing error and replace the first page of the judgment
to reflect the parties in
the correct manner.
H F JACOBS AJ
ACTING
JUDGE OF THE HIGH COURT
PRETORIA
IN THE HIGH COURT OF SOUTH
AFRICA
(GAUTENG
DIVISION, PRETORIA)
(1)
REPORTABLE:
YES
/NO
(2)
OF
INTEREST TO OTHER JUDGES:
YES
/NO
(3)
REVISED
Case No: 36596/2016
31/5/2019
In the matter between:
ROBERT
SLAUGHTER
First Applicant
SHAHIT
WADVALLA
Second Applicant
REGINALD
LEGOABE
Third Applicant
STEVEN
NJIRI
Fourth Applicant
and
MUNICIPAL
INFRASTRUCTURE SUPPORT AGENT
Respondent
JUDGMENT
HF JACOBS, AJ:
[1]
This matter was called in the opposed
motion Court. According to the practice note filed
on
behalf of the applicants it is an application for review. The
chronology gleaned from the papers and information supplied to
me in
open Court when the matter was called is relevant. This application
was instituted on 6 May 2016. In the body of the original
notice of
motion the following relief is claimed:
"1.
That the Respondent be ordered and/or directed to:
1.1
Re-appoint
the First, Second, Third and Fourth Applicants as Consultants in
terms of their submitted bid contracts as Consultants
in terms of
MISA Tender Bid MISAIPPM/003/2015 and Bid MISAICE/003/2015
respectively or alternatively.
1.2
Settle
the full expected contract value of the First, Second, Third and
Fourth Applicants in terms of their expected income as Consultants
in
terms of MISA Tender Bid PPM/003/2015 and Bid CE/003/2015
respectively including damages incurred.
1.3
Settle
the outstanding unpaid professional fees of the Applicants for the 3
months contract extension period granted from 1 October
2015 to 31
December 2015 including accumulated unpaid leave days.
1.4
Settle
the costs of this application.
1.5
Variation
of the time periods in terms of Sections 5(1), 5(2), 7(1) and 9 of
the Prevention of Administrative Justice Act (PAJA)
Act 3 of 2000.
1.6
Any
further I or Alternative relief as the above honourable Court deems
fit.
"
[2]
The applicants gave notice of their
intention to amend their notice of motion on 22 April 2019, shortly
before the notice of set
down was served on the respondent's
attorney.
[1]
The respondent had ten days to object to the proposed amendment, but
did not do so. The respondent did later deliver a notice of
objection
to the proposed amendment but by that time the ten day period had
lapsed. The objection was delivered on the 15
th
of May 2019, a few days before the hearing.
[3]
The applicants' amendment was effected
on 13 May 2019 when it served its amended notice of motion titled
"SUPPLEMENTED NOTICE OF MOTION"
on the respondent's attorney of
record. The body of the
"SUPPLEMENTED
NOTICE OF MOTION"
reads as
follows:
"1.
That the Respondent's decision to award Tender PPM/003/2015 and
Tender
Bid CE/003/2015 be declared unlawful and invalid and be
reviewed and set aside in terms of Section 6 of the Promotion of
Administrative
Justice Act (PAJA) Act 3 of 2000 and/or the Common
Law.
2.
That
the Respondent be ordered and/or directed to compensate the full
expected contract value of the First, Second, Third and Fourth
Applicants in terms of their expected income as Consultants in terms
of Tender Bid PPM/003/2015 and Tender CE/003/2015 respectively
including damages incurred as per quantum of costs depicted in the
annexed Table A.
3.
That
it be declared that the Applicants are entitled to the three (3)
months contract extension period granted from 1 October 2015
to 31
December 2015 including accumulated unpaid leave days as per quantum
of costs depicted in the annexed Table A.
4.
That
the Respondent be ordered and/or directed to pay the costs of this
application.
5.
Variation
of the time periods in terms of Sections 5(1), 5(2), 7(1) and 9 of
the Prevention of Administrative Justice Act (PAJA)
Act 3 of 2000.
6.
Any
further I or Alternative relief as the above honourable Court deems
fit."
[4]
Counsel for the respondent raised the
point
in limine
that
the application for review has been brought outside the 180 day
period provided for in
section 7
of the
Promotion of Administrative
Justice Act, 3 of 2000
. He submitted that the initial notice of
motion quoted in paragraph [1] above provided for no review while the
substituted notice
of motion does. Counsel for the respondent further
stated that prejudice to the respondent is evident and that it had
not had the
opportunity to file an answering affidavit in response to
the
"SUPPLEMENTED NOTICE OF
MOTION" which incorporates the
relief aimed at the review of administrative action.
[5]
During argument counsel for the
applicants draw my attention to the following chronology of the
matter:
[5.1] The
decision the applicants challenge in these proceedings was taken on
20 October 2015;
[5.2] The
applicants requested written reasons for the administrative action on
7 December 2015.
[2]
The respondent failed to furnish written reasons in terms of the PAJA
and the applicant launched an application to compel supply
of the
reasons. The application to compel was granted by Nobanda AJ on 4
March 2016. The respondent still failed to supply the
reasons but
applied to this Court for the rescission of the order of Nobanda AJ
compelling it to furnish written reasons. The application
was
rescission was dismissed by Peterson AJ.
[3]
[6]
The respondent's counsel stated that the
reasons supplied by the respondent and the record furnished to the
applicants took place
in response to the initial notice of motion
which did not include relief aimed at the review and setting aside of
the administrative
action concerned. For that reason, so the
submission went, the applicants should withdraw this application and
commence with the
proceedings afresh. The submission was further that
should the application continue the respondent stands to suffer
prejudice as
it had not answered in the proper context to an
application
for review as the matter
presently stands.
[7]
According to the endorsements on the
court file the papers in this application (1 500 pages) have been
considered and read or at
least served before Judges of this Division
on not less than five occasions. There seems to be considerable
animosity between the
litigants and I consider it appropriate to, in
addition to my finding on the point raised
in
limine,
direct the management of the
application in future. I am of the view that a proper schedule for
the process would facilitate what
the Rules of Court envisage.
[8]
Section 7
of the PAJA and the judgments
of our Courts requires from an applicant to institute review
proceedings without undue delay and
within the 180 day period stated
in
section 7
of the PAJA. Applications launched outside the 180 day
period may only be considered if a proper explanation is tendered on
oath
for the delay. It might be relevant in future for a Court to
consider as a Court of first instance or on appeal why the claim for
review was only introduced at a late stage of the proceedings. Under
the circumstances it would be appropriate to direct the applicants
to, if so advised, to deliver an improved notice of motion which
complies with the provisions of
Rule 53
and to apply for a variation
of time in terms of
section 9
of the PAJA, if so advised. It might in
later proceedings appear not to be necessary but it is, in my view,
better to act in this
regard on the side of caution.
[9]
There is no explanation on paper why the
amendment introducing a claim for relief framed in a prayer for
review was only introduced
during May 2019. In that regard the
respondent's point
in limine
should
be upheld.
[10]
The respondent is not without blame for the delay in finalisation of
the proceedings. The record
shows how the respondent as administrator
cooperated very little in performing its functions in terms of the
PAJA. It is not necessary
at this stage to elaborate on this aspect.
Under the circumstances I make the
following order:
1.
The respondent's point
in
limine
is upheld;
2.
The
costs of the proceedings during the week of 27 May 2019 are to be
costs in the application;
3.
The
applicants are afforded 15 days from the date of this order to file
an amended notice of motion and a supplementary founding
affidavit in
terms of
Rule 53
, and to make application in terms of
section 9
of
the PAJA for a variation of the time period of 180 days, if so
advised;
4.
The
respondent is afforded 20 court days to answer to any papers filed by
the applicants in terms hereof. The 20 day period shall
commence on
the day on which the applicants serve their papers, if any, as
provided for above; and
5.
The
balance of the application is postponed
sine
die.
H
F JACOBS AJ
ACTING
JUDGE OF THE HIGH COURT
PRETORIA
[1]
According to the stamp on the notice of set down it was served on
the State Attorney on 30 April 2019 at 12h00.
[2]
See Record : p 208.
[3]
See Record: p 558.