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[2016] ZAFSHC 183
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Q-Civils (Pty) Ltd v Lte Holdings (Pty) Lts t/a Lte Consulting and Others (A1/2016) [2016] ZAFSHC 183 (20 October 2016)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE STATE
DIVISION, BLOEMFONTEIN
Appeal number:
A1/2016
In
the matter between:
Q-CIVILS
(PTY)
LTD
Appellant
and
LTE
HOLDINGS (PTY)LTD t/a LTE CONSULTING
1
st
Respondent
(Registration
Number: 2000/020739/07)
HENDRIK
SMIT
2
nd
Respondent
MANGAUNG
METROPOLITAN MUNICIPALITY
3
rd
Respondent
CORAM:
RAMPAI, J, REINDERS, J et HINXA, AJ
HEARD
ON:
8 AUGUST 2016
JUDGMENT
BY:
REINDERS, J
DELIVERED
ON:
20 OCTOBER 2016
[1]
This is an appeal against an order granted by Bokwa AJ on 14 October
2015. Leave was granted to the full bench by the court
a quo on 26
November 2015.
[2]
The Appellant is Q-Civils (Pty) Ltd (“Q-Civils”), a civil
construction company and the applicant in the
court
a quo
.
The First Respondent is LTE Holdings (Pty) Ltd t/a LTE Consulting
(“LTE Consulting”) a firm of engineers, whilst the
Second
Respondent, Hendrik Smit (“Smit”) is employed on site by
LTE Consulting. The Third Respondent is Mangaung Municipal
Municipality (the “Municipality”), who appointed LTE
Consulting to oversee the implementation of a contract concluded
between Q-Civils and the Municipality for the rehabilitation of the
Kenneth Kaunda Road in Bloemfontein.
[3]
On 25 September 2015 Q-Civils brought an urgent application on an
ex
parte
basis.
Moloi J granted a
rule
nisi
,
(returnable 15 October 2015), and the following relief operated as an
interim interdict with immediate effect pending the outcome
of the
application:
“
2.1
That permission be given to applicant to perform the necessary works
in terms of the heavy rehabilitation contract:
Kenneth Kaunda Road,
contract no.:T1327B between Applicant and Third Respondent outside of
the hours stated in the aforesaid contract
until 22h00;
2.2
That the First Respondent be prohibited from letting Second
Respondent act as engineer in terms of the aforesaid
contract since
the Second Respondent is not a qualified engineer as such;
2.3
That Second Respondent be prohibited and interdicted from threatening
and/or intimidating and/or falsely accusing
the Applicant.”
[4]
LTE Holdings and Smit thereupon brought an application in terms of
Uniform Rule 6(12)(c) for reconsideration of the order. On
14 October
2015 Bokwa AJ handed down judgment, setting aside the order granted
by Moloi J with costs. Q-Civils was granted leave
to appeal against
this order, and advances the following grounds of appeal:
“
1.
The learned judge erred in not taking into account that the applicant
has a clear right
to perform its contractual obligations properly
withount any unlawful interference, especially having regard that the
project involves
millions of rands;
2.
The Learned judge erred in not taking into consideration that the
applicant followed
due process and already requested permission to
work after hours and that there was a lack of meaningful response;
3.
The Honourable Court erred in not finding that the matter is urgent
as the quality
of the road is being compromised;
4.
The court
a
quo
erred
in finding that the matter was not urgent, for according to the Court
the applicant knew the attitude of the first and second
respondent as
set out in Annexures “TK15” and “TK16”;
5.
The Honourable Judge erred
in not taking into account the oral evidence that the e-mail
sent on
23 September 2015 at 11h18 was brought to the attention of Judge
Moloi in chambers before the order was obtained;
6.
The court
a
quo
erred
by referring and taking into consideration the requisites for a final
interdict, while the court was asked to reconsider the
application
for a temporary interdict;
7.
The Learned Judge erred in not finding that the applicant had a clear
right in
the circumstances, or at the very least a
prima
facie
right;
8.
The Honourable Judge erred
in not finding that the applicant had in the circumstances
a
well-grounded apprehension of irreparable harm having regard to the
fact that the quality of the road is being compromised and
the second
respondent is threatening to have the contract cancelled;
9.
The Learned Judge erred in not taking into account that the balance
of convenience
favours the applicant;
10.
The court
a
quo
erred
in not finding that the applicant had no other satisfactory remedy,
especially having regard to the fact that the applicant
had already
submitted a request to the first respondent to work after hours and
also informed the first respondent about the second
respondent’s
threats;
11.
The Learned Judge erred in finding that the applicant has failed to
satisfy any of the requirements
of an interim interdict;
12.
The Honourable Judge erred in not following the approach as set out
in the cases of Webster
v Mitchell 1948(1) SA 1186 (W) at 1189 and
Gool v Minister of Justice
1955 (2) SA 682
(C) at 688;
13.
The court
a
quo
erred
in not finding that the threats made by the second respondent to the
applicant ought to be considered serious, especially
in the light of
the fact that the value of the contract is more than R30 million
rands and the second respondent as the representative
of the
engineer, who in turn is a representative of the municipality, has
the necessary influence to have the contract cancelled;
14.
The Learned Judge erred in not taking
into account that it is in the interest of the applicant
and the
third respondent that the project be completed in time and that the
quality of the road is not compromised. The Court should
furthermore
have taken into account that the public at large will benefit by the
completion of the road and that respondents will
not be prejudiced;
15.
The Honourable Court erred in setting aside the order made by Judge
Moloi on 25 September
2015.”
[5]
The dominant purpose of Rule 6(12)(c) is to afford an aggrieved party
a mechanism designed to redress imbalances in, and injustices
and
oppression flowing from an order granted as a matter of urgency in
his/her absence. In
ISDN
Solutions (Pty) Ltd v CSDN Solutions CC
1996 (4) SA 484
(W) at 486H-487C Faber AJ articulated as
follows:
“
The
rule has been widely formulated. It permits an aggrieved person
against whom an order was granted in an urgent application to
have
that order reconsidered, provided only that it was granted in his
absence. The underlying pivot to which the exercise of the
power is
coupled is the absence of the aggrieved party at the time of the
grant of the order…The order in question may be
either interim
or final in its operation. Reconsideration may involve a deletion of
the order, either in whole or in part, or the
engraftment of
additions thereto.”
See
also:
National
Director of Public Prosecutions v Braun
2007 (1) SA 189
(C).
[6]
In support of the application for reconsideration before Bokwa AJ
respondents filed an affidavit headed “Affidavit in
support of
reconsideration in terms of Rule 6(12)(c).” Q-Civils in turn
filed an answering affidavit hereto. The respondents
in their
mentioned affidavit dealt with the merits of the matter. In regards
to such affidavits in terms of Rule 6(12)(c) procedures
see the
unreported judgment of this court by Van Zyl J in
Docmania Six
BK h/a DLB Cleaning and Gardening Services v Segabokeng JV Poloko
Trading 541 en Andere
(Application Number 336/2010) delivered
on 29 January 2010; 5 February 2010 (reasons furnished) and in
particular paras [14] to
[20] thereof.
See also:
South
African Airways Soc v BDFM Publishers (Pty) Ltd
2016 (2) SA
561
(GJ).
[7]
Bokwa AJ was therefore merely called upon in terms of Rule (6)(12)(c)
to reconsider the provisional order granted. He was not
called upon
to finally adjudicate the matter as would be the case on the return
date (or as in the case of anticipation of the
return date of a
rule
nisi
as
envisaged in Rule 6(8).) From his judgment it would appear that this
is exactly what he did and in so adjudicating applied the
principles
of a final order. I say so for the reason that the learned acting
judge in par [21] of his judgment stated that the
question was
whether a clear right was established by the applicant with reference
to
Nienaber
v Stuckey
1946 AD 1049.
[8]
The provisional order that was granted was never final in its
operation and clearly was of an interim nature. Prayer 3 of that
order stated that the relief granted was to operate as an interim
order pending the outcome of the application. In this regard
I am of
the view that Bokwa AJ erred. However, I agree with the order by
Bokwa AJ in uplifting the provisional order. I say so
for the
following reasons. It is Q-Civil’s case that during September
2014 it submitted a tender relating to a contract with
the
Municipality. It is common cause that the General Conditions of
Contract for Construction Works, Second Edition (2010) by the
South
African Institution of Civil Engineering (“the GCC”), is
applicable to the contract. In terms of clause 5.8 of
the GCC none of
the works may be executed between sunset and sunrise unless the
engineer’s written permission is obtained
subject to such
conditions that may be laid down by the engineer. It is common cause
that such permission had not been obtained
or granted. Q-Civils in
its founding papers stated that it became necessary to work outside
the normal hours in view thereof that
it is only provided with tar by
its suppliers until approximately 17h00 each day, and that it takes
about 40 minutes to empty the
said trucks. Q-Civils averred that
there could be five truckloads of tar at a time, and therefore
extended time is required to
empty each truck load. It further avers
that it performs in terms of a time schedule and that it is
imperative that the road is
timeously finished.
[9]
Q-Civils avers that on 18 September 2015 Smit was approached and same
was requested to obtain the necessary permission to work
after the
normal working hours. According to them Smit has failed to do so. As
far as I am concerned the relationship between the
Q-Civils and the
municipality is regulated by contract. The parties agreed on its
working hours and the procedure to be followed
in case Q-Civils
wished to work outside the agreed hours. This application is not a
review of the decision of the engineer (and/or
the municipality). The
court is not at liberty to make decisions on behalf of contracting
parties. Bokwa AJ in this regard was
not convinced that Q-Civils was
entitled to approach court whilst it was aware that it should follow
an agreed process. He referred
to an e-mail dated 23 September 2015
at 11:18 am by Smit (Annexure “TK16”) stating
inter
alia
as follows:
“
We
will not unreasonably withhold permission for said (sic) work after
hours but request that your client follow the agreed processes.
Your
letter was the first indication to LTE that Q-Civils wish (sic) to
work outside the agreed working times”
as
well as a further e-mail at 11:19 am (Annexure “TK15”)
indicating:
“
To
date we have not received the request with motivation to extend the
operating hours as defined in this clause.”
[10]
Although not stating so in specific terms, Bokwa AJ was not satisfied
that Q-Civils has shown a
prima
facie
right (though open to some doubt) that it was entitled to the relief
that was granted on 25 September 2015. So seen I am of the
view that
he cannot be faulted and that he correctly uplifted the provisional
order.
[11]
Without derogating from the above, the reasons forwarded by Q-Civils
why it should be allowed to work after sunset and outside
normal
operating hours are flimsy. To me it seems as if same relates to
arrangements which Q-Civils and its suppliers agreed upon
and
therefore the dilemma faced by Q-Civils was self- created. Be that as
it may, Q-Civils should in the proper way first have
engaged and
obtained the permission of the engineer as it has contractually
agreed to do. The respondents objected to the court
hearing the
matter and stated that in terms of clause 10.7.1 of the GCC the
parties have agreed to arbitration in case of a dispute.
In view of
the conclusions above it is not necessary to deal with the point save
to mention that this kind of dispute (extension
of working hours)
seems to me to be exactly the kind of dispute to be adjudicated upon
in a speedily and informal arbitration without
resorting to court.
[12]
According to the papers the tender was extended on 17 September 2016
and the new completion date of the contract was 22 April
2016. This
appeal was heard after the expiring of the said date. The appeal
might therefore have become academical and without
any practical
effect. It is trite that appeals of an academical nature should be
struck from the roll as court orders should not
be academical. In as
far as Bokwa AJ merely reconsidered the provisional order dated 25
September 2015, I also had my reservations
whether that order was
appealable. However, we were not addressed on the last-mentioned
point and I mention same in passing.
[13]
In its heads of argument the respondents initially (and
in
limine
)
argued that the Q-Civils did not set security for costs of the
appeal. At the commencement of the proceedings it was contended
by Mr
de Villiers, appearing on behalf of the respondents, that the appeal
should be struck off for this reason. We made the arrangement
that
both parties argue the appeal
in
toto
including this aspect. The respondents relied on the provisions of
Rule 49(13)(a). The sub rule entitles the court to strike the
appeal
off the roll. We were not prepared to do that as both parties were
before court, had filed heads of argument and had already
incurred
the costs of being before us. No formal application has been launched
by the respondents. In these circumstances it obviously
serves
justice better to hear the appeal than to strike it from the roll.
[14]
Respondents moved for the costs of two counsel in case they are
successful. The question is once again a matter of judicial
discretion. Mr Steenkamp, on behalf of the appellant, referred us
to
Motaung
v Mothiba N.O.
1975
(1) OPD at 631A-C wherein Steyn J aligned himself with the relevant
considerations to be taken into account. These include,
inter
alia
,
the volume of the evidence dealt with by counsel, complexity of the
facts or the law and the importance of the matter in issue.
Mr de
Villiers pressed hard upon us to accept that the good name and
reputation of Smith was at stake and thus warranted the costs
of two
counsel to be employed.
I
am not convinced that this constitute good reason to permit the costs
of two counsel.
[15]
As far as prayers 2 and 3 of the Notice of Motion were concerned, no
case has been made for the granting of those orders and
they were
correctly uplifted by Bokwa AJ.
[17]
In all the circumstances the appeal stands to be dismissed and I
would make the following order:
The
appeal is dismissed with costs.
_____________
C.
REINDERS, J
I
concur.
______________
M.
H. RAMPAI, J
I
concur.
_______________
M.
D. HINXA, AJ
It
is so ordered.
On
behalf of appellant: Adv. M.D.J.
Steenkamp
Instructed
by:
Van
der Berg & Van Vuuren Attorneys
Bloemfontein
On
behalf of respondent: Advv. R.F. de Villiers and S.M. van Vuren
Instructed
by:
Van
Zyl’s Incorporated, c/o Phatsoane Henney Inc
Bloemfontein