About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: High Court, Northern Cape Division, Kimberley
SAFLII
>>
Databases
>>
South Africa: High Court, Northern Cape Division, Kimberley
>>
2018
>>
[2018] ZANCHC 83
|
|
MEC For Roads and Public Works, Northern Cape Economic Development and Others v Umfana Business Enterprise CC And Silver Solutions CC JV and Another (1980/2015) [2018] ZANCHC 83 (7 August 2018)
IN THE HIGH COURT OF SOUTH AFRICA
(NORTHERN CAPE DIVISION, KIMBERLEY)
Case No: 1980/2015
Date Heard: 28/06/2018
Date
Available: 07
I
08
I
2018
In
the matter between:-
MEC FOR
ROADS AND PUBLIC WORKS,
NORTHERN
CAPE ECONOMIC DEVELOPMENT
FIRST APPLICANT
TRADE
AND INVESTMENT PROMOTION AGENCY
SECOND APPLICANT
MEC FOR
FINANCE, ECONOMIC DEVELOPMENT
AND
TOURISM
THIRD
APPLICANT
and
UMFANA
BUSINESS ENTERPRISE CC AND
SILVER
SOLUTIONS CC
JV
FIRST RESPONDENT
INTERNATIONAL
CONVENTION SOLUTIONS CC
SECOND RESPONDENT
JUDGMENT: APPLICATION FOR LEAVE TO APPEAL
STANTON,
AJ
INTRODUCTION:-
[1]
The
respondents in the main application filed an application for leave to
appeal to the Full Bench of the Northern Cape Division
against the
whole of my judgment handed down on 23 February 2018, in terms of
which I made the following orders:-
1.
The agreement between the parties is
cancelled;
2.
The cancellation of the service level
agreement, concluded on 02 May 2012 between the Northern Cape
Economic Development, Trade
and Investment Promotion Agency and
Umfana Business Enterprises CC and Silver Solutions 1069 CC trading
as International Conventions
Solutions JV, dated 28 July 2012, is
valid;
3.
The respondents, Umfana Business
Enterprise CC and Silver Solutions CC JV and International Convention
Solutions CC, are evicted
from the second applicant's premises
situated at Mittah Seperepere International Convention Centre 10 West
Circular Road, Kimberley,
Northern Cape;
4.
The respondents shall vacate the Mittah
Seperepere International Convention Centre, 10 West Circular Road,
Kimberley, Northern Cape,
within 30 (thirty) calendar days of the
granting of this order;
5.
The respondents are ordered to furnish
the applicants with a statement and a debatement of account in
respect of the respondents'
management of the Convention Centre,
within 30 (thirty) calendar days of the granting of this order;
6.
The respondents shall grant the
applicants access to information on the revenues generated and venue
hire of the Convention Centre
and related expenses by the Convention
Centre for auditing by the Auditor General, within 30 (thirty)
calendar days of the
granting of this order;
7.
The
respondents shall submit their financial books for auditing by the
Auditor-General to the second applicant, within 30 (thirty)
calendar
days of the granting of this order; and
8.
The respondents shall pay the costs of
the application on a party and party scale.
[2]
For ease of reference, I shall refer to
the parties as in the main application.
GROUNDS
FOR APPEAL:-
[3]
The grounds for
appeal appear from the notice of application for leave to appeal.
[4]
The grounds for appeal may be distilled
into four main issues, to wit:-
4.1
That there is a reasonable
apprehension that I failed to bring an impartial mind to bear upon
the adjudication of the matter due
to the fact that I, as counsel,
postponed a similar application issued under case number 1832/2014 on
24 July 2015;
4.2
I incorrectly exercised my
discretion by granting condonation to the applicant for their failure
to effect the amendment by delivering
an amended notice of motion;
4.3
I erred in granting an order for
account and debatement in circumstances where no
prima
facie
case was made out by the
respondents for such relief; and
4.4
I erred in confirming the
cancellation of the agreement between the parties where I found that
the convention centre was not occupied
in terms of an agreement and
that I had granted an eviction order of both respondents in
circumstances where the applicants failed
to make out a case for the
second respondent's eviction.
AD
APPLICATION FOR LEAVE TO INTERVENE:
[5]
After
judgment was handed down and prior to the hearing of the application
for leave to appeal, the Auditor General of South Africa
(''the
AGSA'') filed an application for leave to intervene in the
proceedings. The applicants opposed this application.
[6]
The
arguments in respect of the application for leave to intervene were
heard prior to the application for leave to appeal.
[7]
Mr
Govender, on behalf of the AGSA, submitted that leave is sought to
intervene in respect of orders 6 and 7 of my judgment. He
added that
the AGSA cannot be compelled to perform either any private audit
functions or audit the books of a private company and
that orders 6
and 7 will accordingly exceed the AGSA's legislative mandate. He
stated that the AGSA has a direct and substantial
interest in respect
of these 2 orders, if properly interpreted. He argued that, should
the Court interpret that these 2 orders
do not compel the AGSA to
perform any functions on the respondents' books, it will be the end
of the matter in so far as the AGSA
is concerned. He, with reference
to the judgment on
EURO BLITZ 21
(PTY) LTD v SECENA AIRCRAFT INVESTMENTS CC
[1]
,
submitted that these 2 orders, however, do not allow for such an
interpretation and in fact compels the AGSA to audit the respondents'
books. In conclusion, he argued that the word "audit" is
defined as the official examination of business and financial
statements and that the only meaning of the orders, if properly
interpreted, is that the
AGSA
is
required to officially examine the books of the respondents. He
submitted that the
AGSA
should
therefore have been joined as a party to the main application.
[8]
Mr
Ngcangisa, on behalf of the applicants, stated that the Court is only
required to interpret the proper meaning if there is an
ambiguity in
the language that requires interpretation. He argued that orders 6
and 7 are not vague as it only directs the respondents
to hand over
the respondents' books and accordingly does not compel the AGSA to
perform an audit function.
[9]
In
the matter of
KPMG CHARTERED
ACCOUNTANTS (SA) v SECUREFIN
AND
ANOTHER
[2]
,
Harms DP summarised the principles of interpretation as follows:-
''First, the integration (or parol evidence)
rule remains part of our law. However, it is frequently ignored by
practitioners and
seldom enforced by trial courts. If a document was
intended to provide a complete memorial of a Jura! act, extrinsic
evidence may
not contradict, add to or modify its meaning Second,
interpretation is a matter of law and not of fact and, accordingly,
interpretation
is a matter for the court and not for witnesses ( or,
as said in common-law Jurisprudence, it is not a Jury question.
Third, the
rules about admissibility of evidence in this regard do
not depend on the nature of the document, whether statute, contract
or
patent Fourth, to the extent that evidence may be admissible to
contextualise the document (since "context is everything'?
to
establish its factual matrix or purpose or for purposes of
identification, "one must use it as conservatively as possible"
The time has arrived for us to accept that there is no merit in
trying to distinguish between ''background circumstances"
and
''surrounding circumstances'
[10]
In
the matter of
NATAL JOINT MUNICIPAL
PENSION FUND v ENDUMENI,
Wallis JA
(Farlam, Van Heerden, Cachalia And Leach JA concurring)
[3]
,
confirmed that:-
''[17] The
trial Judge said that the general rule is that the words used in a
statute are to be given their ordinary
grammatical meaning unless
they lead to absurdity. He referred to authorities that stress the
importance of context in the process
of interpretation and concluded
that: A court must interpret the words in issue according to their
ordinary meaning in the context
of the Regulations as a whole, as
well as background material, which reveals the purpose of the
Regulation, in order to arrive
at the true intention of the draftsman
of the Rules.
'
[18] The
present state of the law can be expressed as follows. Interpretation
is the process of attributing
meaning to the words used in a
document, be it legislation, some other statutory instrument, or
contract, having regard to the
context provided by reading the
particular provision or provisions in the light of the document as a
whole and the circumstances
attendant upon its coming into existence. Whatever the nature of the
document, consideration must be
given to the language used in the
light of the ordinary rules of grammar and syntax; the context in
which the provision appears;
the apparent purpose to which it is
directed and the material known to those responsible for its
production. Where more than one
meaning is possible each possibility
must be weighed in the light of all these factors. The process is
objective not subjective.
A sensible meaning is to be preferred to
one that leads to insensible or unbusinesslike results or undermines
the apparent purpose
of the document Judges must be alert to, and
guard against, the temptation to substitute what they regard as
reasonable, sensible
or businesslike for the words actually used."
[11]
I
was persuaded that the proper interpretation of orders 6 and 7, on
the plain language thereof, might compel the AGSA to perform
an audit
function. That conclusion convinced me that the AGSA should be
granted leave to intervene.
[12]
I
accordingly granted the AGSA's application for leave to intervene
with costs.
LEAVE
TO APPEAL:-
[13]
The
test of what needs to be established in order to be granted the
necessary leave to appeal is now set out in section 17(1) of
the
Superior Courts Act, the relevant provisions of which read as
follows:-
"17(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 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,”
[14]
In
S v
SMITH
[4]
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.
"
[15]
As
reiterated by Leach JA in
S v
KRUGER,
[5]
the Courts should follow the aforementioned test scrupulously in the
interests of justice.
FIRST
GROUND OF APPEAL - PERCEPTION OF BIAS:-
[16]
Prior
to hearing arguments in respect of this ground of appeal, I placed
the following facts on record:-
16.1
I attended to the postponement of the
application issued under case number 1832/2014 on the unopposed
motion court roll to the opposed
roll, as counsel acting for the
applicants was not available;
16.2
The application was postponed by
agreement on 24 July 2015;
16.3
I did not consult with the applicants
nor did I draft any papers in case number
1832/2014;
16.4
My brief in the application (case number
1832/2014) did not contain any affidavits; and
16.5
Another counsel acted for the applicants
in the drafting and the argument of the matter on 22 October 2014.
[17]
Mr
van Aswegen, on behalf of the respondents, submitted that the
respondents contend that in view of the fact that I appeared as
counsel for the applicants on 24 July 2015 in a matter where the
first respondent and International Convention Solutions were the
respondents there may be an appearance of bias based on the face
value of the court order granted. With reference to the judgment
in
the matter of
THE PRESIDENT OF THE
REPUBLIC OF SOUTH AFRICA & OTHERS v SOUTH AFRICAN RUGBY
FOOTBALL
UNION AND OTHERS
[6]
he argued that the test for recusal is whether there is a reasonable
apprehension of bias in the mind of a reasonable litigant
in
possession of all the relevant facts, that a judicial officer might
not bring an impartial and unprejudiced mind to bear on
the
resolution of the dispute before the court. In conclusion he
submitted that a perception may exist that I failed to bring an
impartial mind to bear on the adjudication of the matter.
[18]
Mr
Ngcangisa submitted that both the applicants and the respondents were
aware of my appearance on 24 July 2015 when the main proceedings
commenced on 09 February 2018, but that the respondents elected not
to bring an application for a recusal. He argued that the accepted
procedure in the event of an application for recusal, as set out in
the judgment of
THE
PRESIDENT
OF THE REPUBLIC OF SOUTH AFRICA & OTHERS V SOUTH AFRICAN RUGBY
FOOTBALL UNION AND OTHERS, supra
[7]
in these circumstances are:-
''[50] The usual procedure
in applications for recusal is that counsel for the applicant seeks a
meeting in Chambers
with the Judge or Judges in the presence of her
or his opponent. The grounds for recusal are put to the Judge who
would be given
an opportunity, if sought, to respond to them. In the
event of recusal being refused by the Judge the applicant would, if
so advised,
move the application in open Court. In this case the
procedure adopted by the fourth respondent departs radically from the
accepted
practice.
"
[19]
Mr
Ngcangisa argued that the respondents had the obligation to inform
the Court of the apprehension of bias to enable me to deal
with this
apprehension by explaining my involvement in the postponement. With
reference to the judgment of Sedley u in the matter
of
STEADMAN-BYRNE
V AMJAD AND OTHERS
[8]
,
he added that by raising the issue
of apprehension of bias after the adverse judgment, the respondents
is litigation maneuvering
on their part and have accordingly waived
their right to object. Sedley LJ stated that
"The
law of waiver is not simple, but appellate and reviewing courts tend
not to look favourably on complainants of vitiating
bias made only
after the complainant has taken his chance on the outcome and found
it unwelcome."
[20]
In
the matter of
THE PRESIDENT OF THE
REPUBLIC OF SOUTH AFRICA &
OTHERS v SOUTH AFRICAN RUGBY FOOTBALL
UNION AND OTHERS, supra
[9]
the Court formulated the proper approach to an application for
recusal and said:-
''It follows from the foregoing that the
correct approach to this application for the recusal of members of
this Court is objective
and the onus of establishing it rests upon
the applicant. The question is whether a reasonable, objective and
informed person would
on the correct facts reasonably apprehend that
the Judge has not or will not bring an impartial mind to bear on the
adjudication
of the case, that is a mind open to persuasion by the
evidence and the submissions of counsel. The reasonableness of the
apprehension
must be assessed in the light of the oath of office
taken by the Judges to administer Justice without fear or favour; and
their
ability to carry out that oath by reason of their training and
experience. It must be assumed that they can disabuse their minds
of
any irrelevant personal beliefs or predispositions. They must take
into account the fact that they have a duty to sit in any
case in
which they are not obliged to recuse themselves. At the same time, it
must never be forgotten that an impartial Judge is
a fundamental
prerequisite for a fair trial and a Judicial officer should not
hesitate to recuse herself or himself if there are
reasonable grounds
on the part of a litigant for apprehending that the Judicial officer,
for whatever reasons, was not or will
not be impartial.
"
What must be stressed here is that which
this Court has stressed before: the presumption of impartiality and
the double-requirement
of reasonableness. The presumption of
impartiality is implicit, if not explicit, in the office of a
Judicial officer. This presumption
must be understood in the context
of the oath of office that Judicial officers are required to take as
well as the nature of the
Judicial function. Judicial officers are
required by the Constitution to apply the Constitution and the law
''impartially and without
fear, favour or prejudice.
"
Their oath of office requires them to
''administer Justice to all persons alike without fear, favour or
prejudice, in accordance
with the Constitution and the law." And
the requirement of impartiality is also implicit, if not explicit, in
section 34 of
the Constitution which guarantees the right to have
disputes decided ''in a fair public hearing before a court or, where
appropriate,
another independent and impartial tribunal or forum.
"
This presumption therefore flows
directly from the Constitution.
The other aspect to emphasise is the
double-requirement of reasonableness that the application of the test
imports. Both the person
who apprehends bias and the apprehension
itself must be reasonable. As we pointed out in SACCAWU, "the
two-fold emphasis
...
serve[s]
to underscore the weight of the burden resting on a person alleging
Judicial bias or its appearance.
"
This double-requirement of
reasonableness also "highlights the fact that mere
apprehensiveness on the part of a litigant that
a Judge will be
biased
-
even
a strongly and honestly felt anxiety
-
is not enough.
"
The court must carefully scrutinise
the apprehension to determine whether it is, in all the
circumstances, a reasonable one.
The presumption of impartiality and the
double-requirement of reasonableness underscore the formidable nature
of the burden resting
upon the litigant who alleges bias or its
apprehension. The idea is not to permit a disgruntled litigant to
successfully complain
of bias simply because the Judicial officer has
ruled against him or her. Nor should litigants be encouraged to
believe that, by
se king the disqualification of a Judicial officer,
they will have their case heard by another Judicial officer who is
likely to
decide the case in their favour. Judicial officers have a
duty to sit in all cases in which they are not disqualified from
sitting.
This flows from their duty to exercise their Judicial
functions. As has been rightly observed, ''[j]udges do not choose
their cases;
and litigants do not choose their Judges." An
application for recusal should not prevail unless it is based on
substantial
grounds for contending a reasonable apprehension of bias.
It thus seems to me that, in our law, the
controlling principle is the interests of Justice. It is not in the
interests of Justice
to permit a litigant, where that litigant has
knowledge of all the facts upon which recusal is sought, to wait
until an adverse
Judgment before raising the issue of recusal.
Litigation must be brought to finality as speedily as possible. It is
undesirable
to cause parties to litigation to live with the
uncertainty that after the outcome of the case is known, there is a
possibility
that litigation may be commenced afresh because of a late
application for recusal which could and should have been brought
earlier.
To do otherwise would undermine the administration of
Justice.
[21]
In
my view, the respondents, if correctly informed, could not have been
under the apprehension that I would be biased against them
or could
not reasonably apprehend that I would not bring an impartial mind to
bear on the issues. I accordingly find that no other
Court would
reasonably come to a different conclusion in respect of this ground
of appeal.
SECOND
GROUND OF APPEAL - CONDONATION IN RESPECT OF AMENDMENT:-
[22]
Mr
van Aswegen submitted that I was not entitled to condone the
non-service of the amended notice of motion and that the amendment
was accordingly not effected. He argued that in International
Convention Solutions CC (the second respondent) was therefore not
a
party to the application and that no orders could be granted against
it. He stressed that in the absence of the delivery of the
amended
notice of motion, the Court could not grant condonation for a
non-existent amendment to be effected. He argued that where
a party
exercises the right to amend pursuant to no objection and a deemed
consent, but does so outside the time period stipulated
in Rule
28(5), such a step may constitute an irregular step. He added that
the applicants could therefore not rely on the judgment
of
BECKER
v MEMBER OF THE EXECUTIVE COUNCIL FOR THE DEPARTMENT OF ECONOMIC
DEVELOPMENT AND ENVIRONMENTAL AFFAIRS AND OTHERS
[10]
where Goosen J held that:-
"...
the failure by a litigant to ad in
accordance with its intention to amend pleadings within the
stipulated time period does not ipso
facto preclude such party from
thereafter filing its amendment. All that may be said is that a
litigant who conducts himself in
that manner exposes himself or
herself to the possibility that a party may object on the basis that
such constitutes an irregular
step. Where there is no such objection,
there can, in principle, be no objection to the Court dealing with
the matter on the basis
of the amended pleadings. Furthermore, Rule
28(7) confers upon the Court a discretion to permit the filing of an
amendment outside
of the time periods provided for in the rules.
"
[23]
Mr
Ngcangisa argued that Ndlokovane, AJ had granted the applicants'
application for amendment on 22 September 2017 after hearing
arguments and that the failure by the applicants to deliver the
amended pages does not preclude them from filing the amendment.
He
submitted that a refusal to condone would have elevated form over
substance. He contended that, if condonation was not granted,
it
would have resulted in a postponement which would have been neither
in the interest of justice nor in the interest of securing
the
inexpensive and expeditious completion of the litigation.
[24]
Uniform Rule 28(5) provides:-
''If no objection is delivered as
contemplated in sub-rule (4), every party who
received
notice of the proposed amendment shall be deemed to have consented to
the amendment and the party who gave notice of the
proposed amendment
may, within 10 days after the expiration of the period mentioned in
sub-rule (2), effect the amendment as contemplated
in sub-rule (7).
[25]
The
party amending must therefore deliver the amended pages within ten
days of the expiry of that period. If he fails to do so,
the proposed
amendment falls away,
[11]
unless condonation for the late filing is sought.
[12]
[26]
In
the matter of
EKE v PARSONS,
[13]
it was held that the Court may depart from a stringent observance of
the rules where the interest of justice requires same. Madlanga
J
stated that:-
''[39]
Without doubt, rules governing the court process cannot be
disregarded. They serve an undeniably important purpose. That,
however, does not mean that courts should be detained by the rules to
a point where they are hamstrung in the performance of the
core
function of dispensing justice. Put differently, rules should not be
observed for their own sake. Where the interests of justice
so
dictate, courts may depart from a strict observance of the rules.
That, even where one of the litigants is insistent that there
be
adherence to the rules. Not surprisingly, courts have often said
''[i]t is trite that the rules exist for the Courts, and not
the
Courts for the rules”.
[14]
[40] Under our
constitut
ional dispensation, the
object of court rules is twofold. The first is to ensure a fair trial
or hearing.
[15]
The second is to ''secure the
inexpensive and expeditious completion of litigation and
...
to further the administration of
justice".
[16]
I have already touched on the
inherent jurisdiction vested in the superior courts in South
Africa.
[17]
In terms of this power, the High
Court has always been able to regulate its own proceedings for a
number of reasons, including catering
for circumstances not
adequately covered by the uniform rules, and generally ensuring the
efficient administration of the courts'
judicial functions.
[18]
[27]
In
view of the fact that the respondents did not appeal the order
granted by Ndlokovane AJ, I remain persuaded that I exercised
my
discretion correctly and that another Court would not reasonably come
to a different conclusion.
THIRD
GROUND OF APPEAL - DEBATEMENT OF ACCOUNT:-
[29]
Mr van Aswegen submitted that the duty
to render an account is dependent upon either a fiduciary
relationship, a contractual obligation
or a statutory duty. He argued
that the applicants failed to make out a case that the reponde0nts
were contractually obligated
to render an account. He added that the
res0pondents only made an oblique reference to the Public Management
Finance Act (''the
PFMA")
[19]
, but that the PFMA finds no application to the respondents by virtue
of the fact that the PFMA regulates the general responsibilities
for
public entities.
[30]
Mr Ngcangisa argued that section 51 of
the PFMA enjoins the AGSA to take effective and appropriate steps to
collect all revenues
due to the public entity concerned and is
responsible for the revenue, expenditure and liabilities of the
public entity. He added
that, in addition, the respondents agreed to
be bound by the provisions of the PFMA in terms of clause 3.2.8 of
the service level
agreement and in terms of clause 3.8 undertook to
provide a full account and report on the management of the convention
centre
on a monthly basis in accordance with the agreement. He added
that the respondents agreed to render accounts on the revenue after
the service level agreement terminated.
[31]
Mr Govender submitted that orders 6 and
7 must either be clarified or rescinded in terms of Uniform Rule 42.
[32]
Uniform Rule 42(1) provides as follows:-
"The court may, in addition to any
other powers it may have mero motu or upon the application of any
party affected, rescind
or vary-
(a)
an
order or judgment erroneously sought or erroneously granted in the
absence of any party affected thereby;
(b)
an
order or judgment in which there is an ambiguity, or a patent error
or omission, but only to the extent of such ambiguity, error
or
omission;"
[33]
In applying this provision it should
always be borne in mind that the Court cannot sit as a court of
appeal on its own judgment
and that it cannot review it. The sub-rule
applies typically to
ex parte
applications or other cases where an
affected party is absent, to bring the true facts to the Court's
attention.
[20]
[34]
An applicant for an order setting aside
or varying a judgment or order of Court must show, in order to
establish
locus standi,
that
he has an interest in the subject-matter of the judgment or order
sufficiently direct and substantial to have entitled him
to intervene
in the original application upon which the judgment was given or
order granted.
[35]
Southwood J, in the matter of
NAIDOO
AND ANOTHER v MATLALA NO AND OTHERS
[21]
summarised as follows:-
"[6] In
general terms, a Judgment is erroneously granted if there existed at
the time of its issue
a fact of which the Judge was unaware, which
would have precluded the granting of the Judgment and which would
have induced the
Judge, if aware of it, not to grant the Judgment
-
see Nyingwa v
Moolman NO 1993 (2) SA 508 {Tk GD) at 510D-G; Herbstein
&
Van Winsen Vol 1
931. It follows that if material facts are not disclosed in an ex
parte application
-
see Schlesinger v
Schlesinger 1979 (4) SA 342 (W) at 348C-349E; National Director of
Public Prosecutions v Basson 2001 (2) SACR
712 (SCA) para 21; United
Diamond Watch
&
Diamond Co (pty) Ltd
and Others v Disa Hotels Ltd and Another 1972 (4) SA 410 (CJ at
414F-415C
-
or
if a fraud is committed (i.e. the facts are deliberately
misrepresented to the court) the order will be erroneously granted.
It has been held that an order granted in an application brought ex
parte without notice to a party who has a direct and substantial
interest in the matter is an order erroneously granted
-
see Clegg v Priestly
1985 (3) SA 950 (W) at 953I-954L
"
[36]
In my view the AGSA had a direct and
substantial interest in the outcome of the main application,
specifically with reference to
the wording of prayers 5, 5.1, and 6
of the notice of motion. If the AGSA had been joined in the
application, it could have opposed
the application and shown, at the
very least, why orders 6 and 7 should have been worded differently.
In view of the request that
I should either rescind or clarify the
orders, I am persuaded that the orders should be clarified to read as
follows:-
"6.
The respondents shall grant the applicants access to information on
the revenues generated
and venue hire of the Convention Centre and
related expenses by the Convention Centre within 30 (thirty) calendar
days of the granting
of this order;
7.
The respondents shall submit their financial books to the second
applicant, within
30 (thirty) calendar days of the granting of this
order;"
[37]
In view of the clarification of orders 6
and 7, the respondents' third ground of appeal falls away.
AD
FOURTH GROUND OF APPEAL- FACTUAL DISPUTE:-
[38]
Mr van Aswegen argued that the second
respondent was never before the Court, as the amendment could not
have been effected. He submitted
that I could accordingly not grant
an order against the second respondent. In view of my findings on the
amendment, I consider
this submission unmeritorious.
[39]
According to Mr van Aswegen a dispute of
fact exists as to which entity is in occupation of the Convention
Centre and which party
should therefore have been evicted. He argued
that it was the applicant's case that the Convention Centre was
occupied by the contractual
joint venture. According to him I erred
in granting an order that the lease agreement is cancelled, where I
found that no tacit
agreement came into existence.
[40]
Mr Ngangisa argued that once the
amendment was allowed, there could not be any doubt as to who the
parties to any agreement was
or who was in occupation of the
Convention Centre. He added that there is no proof that the
applicants intended unequivocally to
allow any of the respondents to
occupy the Convention Centre.
[41]
In my view, no other Court would find
that a factual dispute existed. Order 1 as it currently reads does
not correctly reflect the
purport of my judgment. I will clarify
order 1 by replacing it with the following new order "Confirmation
of the cancellation
of the agreement;"
[42]
I am not persuaded that another court
would come to a different conclusion with regard to whether either or
both the respondents
have a right to occupy the Convention Centre. In
my view, another court will not find that the respondents are
entitled to occupation
of the Convention Centre.
[43]
In these circumstances, I am satisfied
that the respondents have no reasonable prospects of success on
appeal and the application
stands to fail.
WHEREFORE
I MAKE THE FOLLOWING ORDERS:-
1.
THE
APPLICATION FOR LEAVE TO APPEAL IS DISMISSED WITH COSTS.
2.
ORDER
1 IS REPLACED WITH THE FOLLOWING NEW ORDER 1:-
"CONFIRMATION OF THE CANCELLATION OF
THE AGREEMENT;"
3.
PRAYER 6 IS AMENDED AS FOLLOWS:-
"6.
THE RESPONDENTS SHALL GRANT THE APPLICANTS ACCESS TO INFORMATION ON
THE REVENUES GENERATED
AND VENUE HIRE OF THE CONVENTION CENTRE AND
RELATED EXPENSES BY THE CONVENTION CENTRE WITHIN 30 (THIRTY) CALENDAR
DAYS OF THE GRANTING
OF THIS ORDER;
4.
PRAYER 7 IS AMENDED AS FOLLOWS:-
"7. THE
RESPONDENTS SHALL SUBMIT THEIR FINANCIAL BOOKS TO THE SECOND
APPLICANT, WITHIN 30 (THIRTY)
CALENDAR DAYS OF THE GRANTING OF THIS
ORDER;"
A STANTON
ACTING JUDGE
[1]
2015 ZASCA 21
CASE NUMBER 102/2014
[2]
2009(4) SA 399 (SCA) AT PARA 39
[3]
2012 (4) 593 (SCA) AT PARAS 17 and 18
[4]
2012 (1) SACR 567
(SCA) PARA 7
[5]
2014 (1) SACR 647
(SCA) AT 649D (PARA 3)
[6]
[1999] ZACC 9
;
1999 (4) SA 147
(CC) PARA 48
[7]
PARA 50
[8]
[2007] EWCA CIV 625
(27 JUNE 2007) AT PARA [17]
[9]
[1999] ZACC 9
;
1999 (4) SA 147
(CC) PARA 50
[10]
[2014] JOL 31969
(ECP) PAGE 8 AT PARA 21
[11]
VAN HEERDEN V VAN HEERDEN
1977 (3) SA 455
(W); MINISTER VAN WET EN
ORDE V JACOBS 1999 (1) SA[39 944 (0) 951
[12]
NEDCOR INVESTMENT BANK LTD V VISSER NO 2002 (4) SA 588 (T)
[13]
[2016] JOL 34112
(CC) AT PARA 39 AND 40
[14]
ARENDSNES SWEEFSPOOR CCV BOTHA
2013 (5) SA 399
(SCA) (AT PARA [18]
[15]
ARENDSNES ID AT PARA [19]
[16]
KGOBANE AND ANOTHER V MINISTER OF JUSTICE AND ANOTHER 1969 (3) SA
365 (A)
[17]
DE WET AND OTHERS V WESTERN BANK LTD 1977 (2) SA 1033 (W)
[18]
ARENDSNES ABOVE FN 55 AT PARA [19]; ABSA BANK LIMITED V LEKUKU
[2014] ZAGPJHC 274 AT PARA [22]
[19]
ACT 1 OF 1999
[20]
EX PARTE JOOSTE
1968 (4) SA 437
(0)
[21]
2012 (1) SA 143
(GNP) AT PARA 5