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[2018] ZAGPPHC 132
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Municipal Infrastructure Support Agent v Slaughter and Others (3616/2016) [2018] ZAGPPHC 132 (23 February 2018)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO: 3616/2016
Not
reportable
Not
of interest to other judges
In
the matter between:
MUNICIPAL
INFRASTRUCTURE SUPPORT AGENT
Applicant
and
ROBERT
SLAUGHTER
First Respondent
SHAHIT
WADVALLA
Second Respondent
REGINALD
LEGOABE
Third Respondent
STEVEN
NJIRI
Fourth Respondent
JUDGMENT
PETERSEN
AJ:
Introduction
[1]
This is an opposed application for rescission. At issue is an order
granted by default on 4 March
2016 by Nobanda AJ against the
applicant in the following terms:
1.
to give written reasons for the administrative action with regards to
the Applicants unsuccessful bids
for MISA/PPM/003/2015 respectively
in terms of Section 33 of the Constitution of the Republic of South
Africa and Section 5 of
the Promotion of the Administrative Justice
Act 3 of 2000 (PAJA);
2. to
hand over all bid evaluation and adjudication records including the
minutes and attendance registers of Bid
Committee meetings and
curricula vitae of all appointees who participated in Bid
MISA/PPM/003/2015 for Programme/Project Managers
and MISA/CE/003/2015
for Civil Engineers Technical Consultants as advertised by the
Respondent in national newspapers as well as
the State Tender
Bulletin No 2878 of the 4th July 2015 including inter alia the CV's
of the appointed persons; and
3.
to hand over all the curricula vitae of its Supply Chain Management
Unit team including the curricula
vitae of its Bid Evaluation and
Adjudication Committee Members who participated in Bid
MISA/PPM/003/2015 for Programme/Project
Managers and MISA/CE/003/2015
for Civil Engineers Technical Consultants as advertised by the
Respondent in national newspapers
as well as the State Tender
Bulletin No 2878 of the 4th July 2015.
Background
[2]
The respondents were employed by the Development Bank of Southern
Africa and subsequently
transferred by the state to the applicant
with effect from the 1 April 2012 as part of the "Siyenza Manje"
local government
support programme. The respondents were subsequently
re-contracted by the applicant as employees from 1 April 2012 to 31
September
2012 and then as consultants in terms of a specialist
consultancy service level agreement from 1 October 2012 to 30
September 2015.
The applicant published requests for proposals under
tender numbers MISA/PPM/003/2015 for Programme/Project Managers and
MISA/CE/003/2015
for Civil Engineer/Technical Consultants in national
newspapers and the State Tender Bulletin No 2878 of the 4th July
2015. The
respondents' applied in line with their respective skills.
The respondents' were unsuccessful in their bids with the ensuing
result
being the automatic expiration of their contracts as service
providers for MISA on 30 September 2015.
The
litigation
[3]
The respondents' employment having ceased and having been
unsuccessful in their tender
bids they launched an urgent application
on 2 December 2015 in this court under case number 95285/2015. In
that application they
sought an order including, amongst others, that
the appointments made by the applicant in terms of MISA/PPM/003/2015
and MISA/CE/003/2015
be declared null and void due to gross tender
irregularities, alternatively that the respondents be re-appointed in
terms of their
contracts of consultants in terms of MISA Tender bids
PPM/003/2015 and CE/003/2015. The application was struck from the
roll with
costs for lack of urgency and not on the merits. On 19
January 2016, the respondents' withdrew the application of 2 December
2015.
A new application was launched on the same date to compel
discovery of all tender records under the present case number. The
new
application was set down for 24 February 2016 on the unopposed
roll. The application was served by the Sheriff of the Court on the
State Attorney as the applicants' legal representative, on 20 January
2016. No notice of opposition was filed by the applicant
with the
Registrar of the Court or served on the respondents' attorney of
record. On 24 February 2016, the matter was removed from
the
unopposed roll by the respondents' (applicants' in the application at
the time) and re enrolled by the respondents' attorney
of record
on the unopposed roll of 4 March 2016. The State Attorney was served
with a notice of set down for 4 March 2016 by the
Sheriff of the
Court on 25 February 2016 and on 1 March 2016 notice was delivered by
hand to the State Attorney. No notice of opposition
was filed by the
State Attorney in response to the service of the application on 20
January 2016. On 4 March 2016, the order which
forms the subject of
this application was granted by default and served on the applicant
on 13 May 2016.
[4]
The applicant launched a rescission application on 13 May 2016. On 30
June 2016,
the respondents' secured an order under hand of Baqwa J
declaring the applicant to be in contempt of the order of 4 March
2016.
The applicant was given thirty (30) days to comply with the
order of 4 March 2016 under threat of arrest. The rescission
application
in the interim was set down on the opposed roll for 14
August 2017. However, following the filing of a notice of removal by
the
applicant on 1O July 2017, the application for rescission was
accordingly removed from the roll on 14 August 2017. On 14 December
2017 the respondents ' gave the applicant notice of its intention to
have the present application set down for hearing on the opposed
roll
on 29 February 2018, whilst the date was in fact 19 February 2018. Be
that as it may counsel for the applicant duly appeared
on brief on 19
February 2018.
The
grounds for rescission
[5]
The applicant 's main ground for rescission is that the service of
the notice of set down on 01 March
2016 for hearing on the unopposed
roll of 4 March 2016 constitutes short service which is not
countenanced by the Uniform Rule
6(5).
The
rules
[6]
The relevant provisions of rule 6(5) provide as follows:
6 Applications
(5)(a)
Every
application other than one brought
ex parte
must be brought on
notice of motion as near as may be in accordance with Form 2
(a)
of the First Schedule and true copies of the notice, and all
annexures thereto, shall be served upon every party to whom notice
thereof is to be given.
(b)
In a notice of motion the applicant must -
(iii) set forth
a day, not less than five days after service thereof on the
respondent, on or before which such respondent is required
to notify
the applicant, in writing, whether he intends to oppose such
application , and must further state that if no such notification
is
given the application will be set down for hearing on a stated day,
not being less than 10 days after service on the said respondent
of
the said notice.
(c)
If the respondent does not, on or before the day mentioned for
that purpose in such notice, notify the applicant of his intention
to
oppose , the applicant may place the matter on the roll for hearing
by giving the registrar notice of set down before noon on
the court
day but one preceding the day upon which the same is to be heard.
(13) In any
application against any Minister, Deputy Minister, Administrator ,
officer or servant of the State, in such capacity,
the State or the
administration of any province, the respective periods referred to in
paragraph
(b)
of subrule (5), or for the return of a rule
nisi,
must not be less than 15 days after the service of the
notice of motion, or the rule
nisi,
as the case may be, unless
the court has specially authorized a shorter period.
[7]
Rule 4(9) further provides that:
4
Service
(9)
In every proceeding in which the State, the administration of a
province or a Minister, Deputy Minister or Administrator in
his
official capacity is the defendant or respondent, the summons or
notice instituting such proceeding may be served at the Office
of the
State Attorney situated in the area of jurisdiction of the court from
which the summons or notice has been issued: Provided
that such
summons or notice issued in the Transvaal Provincial Division shall
be served at the Office of the State Attorney, Pretoria..."
Discussion
[8]
The Municipal Infrastructure Support Agent ("MISA") is
accountable to the Minister
of Co-operative Governance and
Traditional Affairs, having been constituted as a national government
component in terms of section
7(2) Schedule 3 of the Public Service
Act of 1994 (as amended). MISA as a component of national government
therefore falls within
the ambit of rule 4(9) of the Uniform Rules of
Court for purposes of service of process. The respondents' could
therefore as they
did serve the notice instituting the application
against MISA at the Office of the State Attorney, Pretoria. When the
notice of
motion was served on the State Attorney on 20 January 2016
in terms of rule 4(9), the applicant was called upon within 14 days
of service to notify the applicant, in writing, whether the applicant
intended to oppose the application. The applicant was further
informed that if no such notification was given the application would
be set down for hearing on the 24 February 2016 at 1OhOO.
In this
regard the respondents' complied fully with the rule 6(13).
[9]
The respondents' fail to explain in the answering affidavit why the
application was removed from
the unopposed roll of 24 February 2016
and later re-enrolled on the unopposed roll of 4 March 2016.
Notwithstanding this failure
to explain the removal and subsequent
re-enrolment one week later, the fact remains that the application
served on the 20 January
2016 remained unopposed. The respondent's
served a notice of set down on the State Attorney for the 4 March
2016 on 25 February
2016 through the Sheriff of the Court and again
on 1 March 2016 by hand.
[10]
The applicant explains in its founding affidavit that the notice
opposing the application of
24 February 2016 was served at the
address which appears on the notice of motion, but the attorneys
which appear in the Notice
of Motion could not be found at the
address which frustrated the process of the applicant defending the
application. The deponent
of the founding affidavit, Mr Luvo
Mpengesi, defers to the State Attorney, Mr Thando Sitelo to confirm
this allegation. Mr Sitelo
in a confirmatory affidavit confirms the
allegation insofar as it relates to him. What is absent from the
founding affidavit and
confirmatory affidavit is when attempts were
made at service of the notice of intention to oppose and by whom. In
particular, however,
the tenor of the founding affidavit is that the
notice of opposition was in fact served. This assertion lacks
particularity, in
that if the notice of opposition was in fact
served, no proof thereof is provided by the applicant of such service
or the drafted
notice of opposition itself. If service of the notice
of opposition had in fact occurred, it is peculiar, why knowing that
the
application is set down for 24 February 2016, the State Attorney
made no effort to brief Counsel to appear on the said date to make
submissions on this point to. the court. The applicant in its
founding affidavit simply fails to explain its non-appearance on
24
February 2016.
[11]
In respect of the notice of set down for the 4 March 2016 served by
the respondents' through
the Sheriff of the Court and by hand at the
Office of the State Attorney Pretoria, Mr Mpengesi states that
"although it appears
that the respondents served on the
applicant a notice of set down dated 4 March 2016, the notice of set
down never reached the
Attorney of Record and as a result MISA was
unaware that the matter was set down for the 4t h March 2016."
The notice of set
down was in fact served in the two manners as
stated aforesaid and not that it appears to have been served by the
respondents '.
The return of service of 25 February 2016 pertinently
states that the notice of set down was served at 15h00 at the Office
of the
State Attorney, Pretoria on Miss Mthathoa (Reception). Further
to that the notice of set down served by hand on 01 March 2016 at
the
Office of the State Attorney Pretoria, bears the stamp of the State
Attorney with a signature and time of 15h00. The statement
that the
notice of set down never reached the attorney of record is therefore
misplaced. There was only one attorney of record
at that stage, the
State Attorney, Pretoria. No explanation is given why Miss Mthathoa
was not approached to explain what happened
to the notice of set down
served by the Sheriff on her or to depose to an affidavit in this
regard. Similarly no affidavit is filed
by the person who received
the notice of set down served by hand to explain any remissness in
this regard.
[12]
The application for rescission premised on short service of the
notice of set down for 4 March 2016, within the ambit of rule
42(1)(a), is without merit. In addition, the applicant has failed to
show that it has a
bona fide
defence or that it was not in
wilful default.
Order
[13]
In the result the application for rescission of judgment is dismissed
with costs.
AH
PETERSEN
ACTING
JUDGE OF THE HIGH COURT OF SOUTH AFRICA
Appearances:
For
the Applicant: Adv. MH Mhambi
Instructed
by: Mokono Attorneys
For
the Respondent: Adv. TD Molea
Instructed
by: Ngeno and Mteto Incorporated
Date
heard: 19 February 2018
Date
of judgment: 23 February 2018