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[2016] ZAFSHC 115
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Babereki Consulting Engineers CC v Minister: Government of the Republic of South Africa: Department of Water and Sanitation and Others (890/2016) [2016] ZAFSHC 115 (30 June 2016)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: 890/2016
In
the matter between:
BABEREKI
CONSULTING ENGINEERS
CC
Applicant
and
THE
MINISTER: DEPARTMENT OF WATER
AND
SANITATION
1st Respondent
VHARANANI
PROPERTIES (PTY) LTD
2nd Respondent
BLOEMWATER
3rd Respondent
THE
MINISTER: DEPARTMENT OF HUMAN
SETTLEMENTS
4th Respondent
THE
PREMIER: FREE STATE PROVINCIAL
GOVERNMENT
5th Respondent
NKETOANA
LOCAL MUNICIPALITY
6th Respondent
SETSOTO
LOCAL MUNICIPALITY
7th Respondent
TOKOLOGO
LOCAL MUNICIPALITY
8th Respondent
CORAM:
MOKGOBO,
AJ
HEARD
ON:
10 JUNE 2016
JUDGMENT
BY:
MOKGOBO, AJ
DELIVERED
ON:
30 JUNE 2016
[1]
This is an application for leave to appeal against the whole of the
judgment and order of my brother,
Phalatsi
AJ
( as he then was) granted on 15 April 2016 under case number
890/2016.
[2]
The applicant seeks leave to appeal the judgment on various grounds
as set out in its supplementary grounds of appeal. The
grounds relied
upon by the applicant are the following:
2.1
The learned Acting Justice erred in uplifting the interim interdict
granted by
Chesiwe
AJ
.
2.2
The learned Acting Justice misdirected himself by having reference to
the totality of the evidence presented for purposes of
the
reconsideration application, especially since the second respondent
specifically relies upon certain paragraphs in its affidavit
to
support the reconsideration application.
2.3
The learned Acting Justice could not have regard to any allegation
made in the affidavit, nor was the applicant called upon
for purposes
of the reconsideration under the Rule 6(12) (c) notification to
answer to any other allegations.
2.4
The learned Acting Justice erred in holding that the applicant had
failed to establish a prima facie right. In this context,
the Acting
Justice made the following errors:
2.4.1
He failed to properly consider that none of the other
respondents, most notably the first respondent, alleged that
the
agreement upon which Babereki relies did not overlap with that of
second respondent;
2.4.2
Indeed, the learned Acting Justice failed to properly consider
or appreciate as far as the applicant and the first
respondent is
concerned, and when the matter served before
Chesiwe
AJ,
it was common cause between the parties that the rights given to the
second respondent and the applicant overlapped.
2.4.3
The learned Acting Justice erred in finding that the only way
in which the applicant could prove the terms its agreement,
was by
putting up the document itself.
2.4.4
The learned Acting Justice erred by not properly considering
the totality of the evidence on the question. Most notably:
2.4.4.1
The absence of any dispute between the Applicant and the First
Respondent as to the terms of the agreement and its
extent;
2.4.4.2
The absence of any countermanding evidence tendered by the
Second Respondent;
2.4.4.3
The fact that after the Applicant had temporarily abandoned one of
the construction sites, that it was common cause between
the parties
that the second respondent had later occupied the exact same site –
to such an extent that the officials of the
Municipality concerned
thought it was the Applicant who had returned.
2.5
The learned Acting Justice erred by not finding that the second
Respondent’s absence at the initial hearing was wilful.
The learned Acting Justice failed to consider the evidence proffered
by the applicant, pertaining to the letter calling for cessation
sent, media reports after the applicant was instituted, etc. A
probable finding must have been that the second respondent
knew about
the proceedings.
[3]
A substantial number of grounds of appeal have been raised, however,
during argument
Adv. Gobler
limited his grounds to the
following issues namely: His first contention was that the
reconsideration application before
Phalatsi AJ
was based on
the following papers:
-
Notice of motion
-
Founding affidavit of Babereki
-
Reconsideration application
-
Minister’s affidavit and
-
paragraphs 3,4,5 and 6 of the Vheranani application.
He
submitted that
Chesiwe
AJ
,
when she granted the interim order, was satisfied that Babereki
had made out a proper case in its founding affidavit.
Phalatsi
AJ
was therefore not enjoined to ventilate any issue beyond that. He
further argued that the balance of issues including the granting
of
the interim interdict were to be reserved for later adjudication as
it is evident from paragraph 7 of 2
nd
respondent’s reconsideration application. Secondly, he
contended that it is a basic principle of the law of evidence that
proof of a primary fact can be done in various ways. It can be done
by viva voce evidence or affidavit. Appending a document like
in the
present matter is not a requirement. He further submitted that
applicant has proved the infringement of its rights and for
his
proposition he referred me to paragraph 23.6 on page 29 of the
paginated papers. He further contended that failure on the part
of
any of the respondents to reply on or deny the averments is by
implication an admission of such infringement. He is of the view
that
the contract in the present matter was not an issue and it was not
necessary to append it to the papers. Lastly, he
contended that
2
nd
respondent was aware of the date of the hearing and his absence was
wilful. He argued that in lieu of service by the Sheriff, the
news of
the application was in the public domain and 2
nd
respondent ought to have known about the date of the initial hearing.
He is of the view that the probable finding by
Phalatsi
AJ
ought to have been that 2
nd
applicant’s absence was wilful. In conclusion he
submitted that there are reasonable prospects that the full bench
confronted with the same facts will come to a different conclusion.
[4]
Counsel for both the 1st and 2nd respondents oppose the application.
They contend that applicant had failed to establish a
prima
facie
right which would entitle it to be granted the interim interdict and
secondly applicant had failed to demonstrate to the court
the alleged
infringements of its right. They further contend that it was
incumbent upon applicant to have attached the necessary
evidence to
its founding affidavit to demonstrate to the court the alleged
infringement of its rights by 2nd respondent and it
has exclusive
rights emanating from its contract with 1st and 3rd respondents. The
2nd respondent further contends that its application
for
reconsideration was based on the relief sought in its notice of
motion and founding affidavit and not on limited grounds as
alleged
by applicant. It is therefore both their submissions that Phalatsi AJ
was correct in dismissing the interim order.
[5]
The test for granting an application for leave to appeal is whether
the appeal would have a reasonable prospect of success.
[6]
I have read the well-crafted judgment of my colleague
,
Phalatsi AJ,
the Notice of Motion, founding affidavit of Babereki, reconsideration
application and the Vheranani affidavit. I agree with
Adv
Gobler
that the papers mentioned above, save the judgment of course, were
the only papers placed before
Phalatsi
AJ
,
during the reconsideration application. It must be pointed out at
this stage that the basis of the reconsideration application
was
about whether the applicant (Babereki) made out a case for the
granting of an interim order in its founding papers. (see
paragraph 3 reconsideration application at page 264 of the papers).
The Babereki affidavit was the crucial document upon
which the
interim order was granted. It was therefore incumbent upon
Phalatsi
AJ
to have regard to such affidavit to determine whether the legal
requirements have been satisfied for the granting of the interim
order.
[7]
It was an express averment in the Babereki Affidavit that the
contract concluded by the 1
st
and 2
nd
respondents infringes upon its rights. The contract relates to
the provision of the same services for the areas mentioned
in the
Notice of Motion. The specifics as to how the rights were infringed
are not clear from the affidavit. Significantly, what
is further
lacking from the affidavit is an averment that Babereki has exclusive
rights to render the services in the areas concerned
and 2
nd
respondent has been allocated the same units allocated to Babereki on
the same site. Without such express averments in the affidavit,
the
contract and the scope of works to show the infringement, it is
difficult if not impossible to conclude that applicant had
made out a
proper case for the granting of the interim order
.
Phalatsi AJ
was in my opinion correct by having found that Babereki had failed to
show a prima facie right.
[8]
On the issue of non-appearance by 2
nd
respondent
,
Phalatsi AJ
had addressed the matter. His finding is legally sound
and he cannot be faulted. In addition to his reasoning, I can
add
that it was never and it could never have been the intention of the
legislature that news in the media is proper service of
court
proceedings. The contention by
Adv.
Gobler
is in my view without merit.
[9]
Based on the above reasons, I am not persuaded that there is any
reasonable prospect of success on any of the grounds raised.
[10]
In conclusion
Adv
Gobler
,
submitted that costs occasioned as a result of a postponement on 3
June 2016 be costs in the appeal if leave is granted. In the
event
leave to appeal is not granted, each party carry its costs of the
day. He submits that the state of the court file cannot
be ascribed
to the applicant as the file was with
Phalatsi
AJ
.
Counsel for both 1
st
and 2
nd
respondents submitted that it was the responsibility of applicant to
ensure that the court file was in order and the wasted costs
occasioned by the postponement on 3 June, be borne by applicant.
[11]
The postponement of the matter was at the instance of applicant due
to papers that were not properly paginated. The explanation
that the
file was with
Phalatsi
AJ
,
is in my view no justification for its failure to ensure that the
papers are in order. Fairness and justice dictate that respondents
cannot be saddled with costs occasioned by no fault on their part.
[12]
The following order is made:
(a)
Application for leave to appeal is dismissed with costs
including the wasted costs occasioned by the postponement on
3 June
2016.
_________________
MC
MOKGOBO, AJ
On
behalf of Applicant:
Adv.
Grobler
Instructed
by:
Mphafi
Khang Inc.
Bloemfontein
On
behalf of 1st Respondent:
Adv. Motete SC
Instructed
by:
Hahn
and Hahn Attorney
C/o
Symington & De Kok
Bloemfontein
On
behalf of 2nd Respondent: Adv. TL
Marolen
Instructed
by:
Ramabulana
Attorneys
C/o
Bezuidenhouts
Bloemfontein
/PK