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[2016] ZALMPPHC 15
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Silver Edge Trading 8 CC v MEC for Education: Limpopo Province and Another (2187/2016) [2016] ZALMPPHC 15 (21 December 2016)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(LIMPOPO
DIVISION, POLOKWANE)
CASE
NO: 2187/2016
21/12/2016
Reportable:
Yes
Of
interest to other judges: Yes
Revised.
In
the matter between:
SILVER
EDGE TRADING 8
CC
APPLICANT
and
MEC
FOR EDUCATION: LIMPOPO FIRST
RESPONDENT
PROVINCE
HOD
FOR EDUCATION: LIMPOPO SECOND
RESPONDENT
PROVINCE
JUDGMENT
MAKGOBA
JP
[1]
This
is an application in terms of
Section 18
of the
Superior Courts Act,
10 of 2013
for the operation and execution of the order of MG
Phatudi J pending the outcome of the Respondents’ application
for leave
to appeal, including the appeal, if any, to be noted.
[2]
It is common cause that on the 19 September 2016 MG Phatudi J granted
an order in favour of the Applicant. Subsequent thereto
the
Respondents brought an application for leave to appeal before MG
Phatudi J which application was dismissed with costs on 3
November
2016.
[3]
It is against this background that the Respondents took the matter up
on appeal in the form of a petition to the Supreme Court
of Appeal.
The Applicant consequently brought the present application in terms
of
Section 18
of the
Superior Courts Act 10 of 2013
.
[4] The appropriate
provisions of
section 18
of the Act read as follows:
“
18(1)
Subject to subsections(2) and (3), and unless the Court under
exceptional circumstances orders otherwise, the operation and
execution of a decision which is the subject of an application for
leave to appeal or of an appeal, is suspended pending the decision
of
the application or appeal.
18(2) ………….
18(3) A Court may only order
otherwise as contemplated in subsection (1) or (2), if the party who
applied to the Court to order
otherwise, in addition proves on
balance of probabilities that he or she will suffer irreparable harm
if the Court does not so
order and that the other party will not
suffer irreparable harm if the Court so orders.”
[5]
Under the common law practice the Court to which the application for
leave to execute is made has a wide general discretion
to grant or
refuse leave and, if leave be granted, to determine the conditions
upon which the right to execute shall be exercised.
See:
South Cape
Corporation (Pty) Ltd v. Engineering Management Services (Pty) Ltd
1977 (3) SA 534
(A) at 545 C
.
[6]
Section 18
of the Act introduces a fresh test for leave to put into
operation and execute an order pending the appeal process and
accordingly,
judicial authority that predates the section has been
overtaken by its enactment.
In
Incubeta Holdings (Pty) Ltd v. Ellis
2014 (3) SA 189
(GJ) at 194
B-D
Sutherland J stated the position as follows:
“
The
thesis advanced on behalf of respondents is that the discretion
hitherto exercised by the Court is history, and that one must
now
look exclusively to the text of
section 18.
Emphasis was placed on the heavy
onus on the litigant who seeks to execute on an order, pending an
appeal, as formulated on
ss 18(1)
and (3).
It seems to one that there is
indeed a new dimension introduced to the test by the provisions of
section 18.
The test is twofold. The requirements are:
·
First,
whether or not exceptional circumstances exist and
·
Second,
proof on a balance of probabilities by the applicant of –
-
the
presence of irreparable harm to the applicant / victor, who wants to
put into operation and execute the order; and
-
the
absence of irreparable harm to the respondent / loser, who seeks
leave to appeal”
.
[7] The test for leave to
put into operation and execute an order pending the appeal was
authoritatively set out in a more recent
judgment of Full Court (per
Ranchod, Fabricius and JW Louw JJ) Gauteng Division, Pretoria in the
matter of
Member of the Executive Council for Co-Operative
Governance, Human Settlements and Traditional Affairs (COGHSTA) and
Others v. Mogalakwena
Municipality and Another,
Case Number
A484/2016
dated
10 November 2016
at paragraphs [24] –
[25].
See
also, more recently, the Supreme Court of Appeal decision in
University
of the Free State v. Afriforum and Another
[2016] ZA SCA 165
(17
November 2016)
at para [9] – [11].
[8]
It is clear therefore that in terms of the present legal dispensation
the Applicant must prove three jurisdictional requirements
on a
balance of probabilities: namely:
8.1 Exceptional
circumstances
8.2 Irreparable harm to
the Applicant if the order is not granted;
and
8.3
That the Respondent will not suffer irreparable harm if the order is
granted.
If
the above jurisdictional requirements are met, the Court has
discretion to grant or dismiss the application. Such discretion
should be exercised in the interest of justice.
[9]
In
Incubeta Holdings (Pty) Ltd v. Ellis supra,
Sutherland J
held:
“
[22]
Necessarily, in my view, exceptionality must be fact-specific. The
circumstances which are or may be “exceptional”
must be
derived from the actual predicaments in which the given litigants
find themselves”
.
[10]
I now proceed to examine the facts of the present application in
order to determine the predicaments of the litigants herein
so as to
make a finding as to whether exceptional circumstances do exist and
to what extent each party stands to suffer irreparable
harm in the
event of the application being granted or dismissed.
[11]
The following circumstances and / or considerations come to the fore
upon my analysis of the facts of this case:
11.1
The respondents’ prospects of success on appeal are poor.
11.2
If this application is not granted and the appeal is eventually
dismissed, such dismissal of the appeal will work cold comfort
for
the applicant as it would by then be left without adequate or
effective relief. This is so because the bid / contract in issue
is
for a limited period.
11.3 The duration of the
tender for which the Applicant made bid unsuccessfully is three
years. The first year has come and gone
and only two years are left.
The remaining two years continue to run.
11.4
The remainder of the period of the tender (two years) will in all
probability expire before finalisation of the appeal process.
Even if
the appeal were to be disposed of earlier by the Supreme Court of
Appeal, the respondents are on record as saying they
would proceed to
the Constitutional Court, therefore prolonging the appeal process.
11.5
The main application was brought in terms of
Section 6
of PAJA. The
Applicant cannot avail itself of a remedy of an award of damages in
the event of the failure of the appeal process.
11.6
If this application is refused, the potential of the applicant having
to shut down business and retrench employees is real
and very high.
11.7
If the order is granted the respondents will not be required to
expend any monies in favour of the Applicant unless and until
the
latter has rendered service to the Department of Education.
11.8
The Department will not be indebted to the Applicant unless and until
the Applicant had rendered service and presented invoices
therefor.
11.9 The Applicant has a
good record of delivering quality service to various Departments as
shown in Annexures “E1”,”E2”,”E3”
& “E4” attached to the Founding Affidavit.
The
Respondents do not stand to suffer any harm emanating from the
Applicants performance in terms of the tender.
[12] In my view the
aforegoing sufficiently satisfy the novel
prejurisdictional
requirements of
Section 18(3)
of the Act. It is plain from the
summary of the circumstances given above that the Applicant would
suffer irreparable harm if the
order is not put into operation.
[13]
In the result I grant the following order:
1.
The
order of Phatudi J dated 19 September 2016 shall operate pending the
outcome of the application in terms
Section 17(2)
of Act 10 of 2013
for leave to appeal, including any appeal noted, if at all.
2.
The
Applicant is exempted from furnishing security in terms of Rule
49(12).
3. The
Respondents are ordered to pay the costs of this application jointly
and severally, the one paying the other to be absolved.
_________________________
EM
MAKGOBA JP
JUDGE OF THE HIGH COURT OF
SOUTH AFRICA, LIMPOPO
DIVISION, POLOKWANE
APPEARANCES
For
the Applicant : Adv. K Lengane
:
L Mbangi Inc.
For
1
st
& 2
nd
Respondent : Adv. TF Mathibedi SC
Adv.
A Mofokeng
State
Attorney
Heard
on : 20 December 2016
Judgment
delivered on : 20 December 2016