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[2018] ZANCHC 2
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Ocean Echo Properties 333 CC v MEC Northern Cape Provincial Government Department of Roads and Public Works and Another (2804/2016) [2018] ZANCHC 2 (26 January 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
NORTHERN
CAPE DIVISION, KIMBERLEY
Case
number: JA 78/10
Case No: 2804/2016
Heard
on: 12/12/2017
Delivered
on: 26/01/2018
In the matter
between:
OCEAN ECHO
PROPERTIES 333 CC
APPLICANT
And
THE MEC NORTHERN CAPE
PROVINCIAL
1
st
RESPONDENT
GOVERNMENT DEPARTMENT OF
ROADS
AND PUBLIC WORKS
ALKARA 79
CC
2
nd
RESPONDENT
And to
EXILACLOX (PTY)
LTD
Interested Party
Mamosebo J et L Lever
AJ
JUDGMENT: APPLICATION FOR LEAVE TO APPEAL
Mamosebo
J
[1]
This is an application by Ocean Echo Properties 333 CC for leave to
appeal to the Full Bench of the Northern Cape Division against
part
of the judgment and order concurred in by Lever AJ granted on 21 July
2017 in which we reviewed and set aside the decision
of the
Department of Roads and Public Works to grant the tender to Alkara 79
CC and declared that Exilaclox (Pty) Ltd the preferred
bidder. The
first respondent is the MEC for the Department of Roads and Public
Works who, represented by the State Attorney, placed
on record that
the MEC is not opposing the application and will abide the decision
of the Court. Exilaclox, however is opposing
this application.
[2] The grounds upon which the
applicant relies are that the Court erred in finding:
2.1
That the Ocean Echo bid was unresponsive and its application
stood to be dismissed;
2.2 That Exilaclox submitted the
only responsive bid and was to be the preferred bidder and ordering
the
Department to negotiate further with Exilaclox in respect of the
finishes in compliance with the terms of reference and the building
specifications.
[3]
Ocean Echo and Exilaclox approached the court separately seeking the
same relief to review and set aside the order which granted
Alkara 79
CC the tender. Lever AJ granted a consolidation order of their
respective applications which were then to be heard simultaneously.
[4]
Consequent to the final judgment on the merits of the review and the
order set out in such judgment, Alkara applied for the
rescission of
the judgment and order. While Ocean Echo applied for leave to appeal.
The two applications were heard together.
[5]
The test to be applied in determining whether an application for
leave to appeal should be granted or not is governed by s 17
[1]
which stipulates:
“
(1)
Leave to appeal may only be given where the judge or judges
concerned are of the opinion that
–
(a)
(i) the appeal
would have reasonable prospects 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 s 16(2)(a); and
(c)
Where the
decision sought to be appealed does not dispose of all issues in the
case, the appeal would lead to a just and prompt
resolution of the
real issues between the parties.”
[6]
In
S v Smith
[2]
Plasket AJA stressed:
“
[7]
What the test of reasonable prospects of success postulates is a
dispassionate decision, based on the facts and
the law, that a court
of appeal could reasonably arrive at a conclusion different to that
of the trial court. In order to
succeed, therefore, the
appellant must convince this court on proper grounds that he has
prospects of success on appeal and that
those prospects are not
remote but have a realistic chance of succeeding. More is required to
be established than that there is
a mere possibility of success, that
the case is arguable on appeal or that the case cannot
be categorised as hopeless.
There must, in other words, be a sound,
rational basis for the conclusion that there are prospects of
success on appeal.”
As
reiterated by Leach JA in
S
v Kruger
[3]
the Courts should follow the aforementioned test scrupulously in the
interests of justice.
[7]
The initial argument advanced on behalf of the applicant was that
because it had submitted the cheapest or lowest bid the tender
ought
to have been awarded to it. During the proceedings in the main case
Mr Grobler was asked to particularly address us on whether
or not the
letter filed in response to the mandatory requirements for a proxy or
agreement or proof of ownership have been met.
This Court was not
satisfied with the submissions because the letter did not serve as
any of the specified documents. Ocean Echo
also argued that
substitutory relief was not appropriate and the matter should be
referred back for reconsideration. The main judgment
has dealt
extensively with the basis for granting substitutory relief and need
not be repeated here.
[8]
Astonishingly, Ocean Echo is presenting a completely new argument
during this application for leave to appeal which did not
form part
of the review application. In
Bato
Star Fishing (Pty) Ltd v Minister of Environmental Affairs and
Tourism and Others
[4]
the Court said the
following:
“
However,
it must be emphasized that it is desirable for litigants who seek to
review administrative action to identify clearly both
the facts upon
which they base their cause of action, and the legal basis of their
cause of action.”
Ocean
Echo has failed to make out its case in both the founding and
supplementary affidavits but as pointed out has
done so belatedly.
This cannot be allowed.
[9]
There is really no acceptable reasons advanced on behalf of Ocean
Echo why the founding papers in the review application fall
short of
identifying the facts and grounds of review clearly. The Supreme
Court of Appeal made the following remarks in
Tao
Ying Metal Industry (Pty) Ltd v Pooe N.O. and Others
[5]
“
Our
courts do not allow applicants in review proceedings to raise new
grounds of review in replying affidavits or from the Bar during
argument (Director of Hospital Services v Mistry
1979 (1) SA 626
(A)
at 635H – 636B).”
[10]
Mr Grobler argued that this Court has exercised a discretion in the
loose sense. The following remarks by the Supreme Court
of Appeal on
this aspect in
Knox
D’ Arcy Ltd and Others v Jamieson and Others
[6]
are instructive:
“
[87]…..In
the instance of a discretion in the loose sense, an Appellate Court
is equally capable of determining the matter
in the same manner as
the Court of first instance and can therefore substitute its own
exercise of the discretion without first
having to find that the
court of first instance did not act judicially. However, even where a
discretion in the loose sense is
conferred on a lower court, an
Appellate Court’s power to interfere may be curtailed by
broader policy considerations. Therefore,
whenever an Appellate Court
interferes with a discretion in the loose sense, it must be guarded.
[88]
When a lower court exercises a discretion in the true sense, it would
ordinarily be inappropriate
for an Appellate Court to interfere
unless it is satisfied that this discretion was not exercised –
‘
judicially,
or that it had been influenced by wrong principles or a misdirection
on the facts, or that it had reached a decision
which in the result
would not reasonably have been made by a court properly directing
itself to all the relevant facts and principles.’
An
Appellate Court ought to be slow to substitute its own decision
solely because it does not agree with the permissible option
chosen
by the lower court.”
[11]
The main judgment dealt with the reasons why Ocean Echo’s bid
remained unresponsive. Of importance is that Alkara had
waived its
rights to be served with further pleadings and did not oppose the
application by Exilaclox and Ocean Echo. The judgment
and order had
taken into consideration all the circumstances placed before it and
eliminated Ocean Echo as a bidder
for failing to meet the
mandatory requirements. I am not persuaded that Ocean Echo has any
prospects of success on appeal.
[12]
In my view Ocean Echo is being opportunistic relying on the knowledge
that there is an application for rescission of the judgment.
The
doors to litigation cannot remain open indefinitely as this will
amount to abuse of court process particularly where the prospects
of
success are poor or non-existent.
[13]
Having dispassionately considered the application I am of the view
that the main judgment has adequately dealt with the aspect
of Ocean
Echo’s non-responsiveness and disqualification. I am satisfied
that the applicant has no reasonable prospects of
success on appeal
and his application stands to fail.
[14]
In the result the following order is made:
The
application for leave to appeal is dismissed with costs.
_____________________
MAMOSEBO J
NORTHERN CAPE DIVISION
I concur
_____________________
L LEVER AJ
NORTHERN CAPE DIVISION
For
the applicant:
Adv S Grobler
Instructed
by:
Van den Heever Attorneys
For
the first respondent:
Mr Modisa
Office of the State Attorney
For the interested party:
Adv APJ Els
Instructed
by:
Waldick Jansen Van Rensburg Inc
Duncan & Rothman Inc
[1]
Of the
Superior Courts Act, 10 of 2013
[2]
2012 (1) SACR 567
(SCA) para 7
[3]
2014 (1) SACR 647
(SCA) at 649d (para 3)
[4]
[2004] ZACC 15
;
2004 (4) SA 490
(CC) at para 27
[5]
2007 (5) SA 146
(SCA) at 175
[6]
[1996] ZASCA 58
;
1996 (4) SA 348
(SCA) at 361I para 87