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[2016] ZAGPPHC 1179
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Vishnu Munilall and Associates v Minister of Justice and Others (11239/2006) [2016] ZAGPPHC 1179 (23 September 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO: 11239/2006
REPORTABLE
OF
INTEREST TO OTHER JUDGES
REVISED
Before
His Lordship Mr Acting Justice Davis
Date
heard: 13 September 2016
Judgment
delivered: 23 September 2016
In
the matter between:
VISHNU
MUNILALL AND ASSOCIATES
Applicant
and
MINISTER OF JUSTICE
First
Respondent
STATE TENDER BOARD
Second
Respondent
DIRECTOR-GENERAL
NATIONAL TREASURY
Third
Respondent
DEPUTY
CHIEF STATE LAW ADVISOR:
DEPARTMENT
OF JUSTICE
Fourth
Respondent
JUDGMENT
DAVIS,
AJ:
[1]
This matter initially came before the court on the unopposed motion
court roll of 9 September 2016. lt then comprised of 563
pages spread
over 9 volumes. Upon a reading of the matter it soon became apparent
that the matter was opposed and appearance by
Mr Maritz SC on behalf
of the First, Third and Fourth Respondents confirmed this. As a
result hereof and as a result of an application
for striking out
delivered by the said Respondents on that day, the matter stood down
before me on this court's opposed motion
court roll of 13 September
2016.
[2]
The Applicant is a sole proprietorship cited as a
"firm"
in the papers and was at all relevant times up to and including
the matters before me represented by its owner Mr Munilall.
[3]
PROCEDURAL HISTORY
:
In
order to contextualise the current disputes, it is necessary to
briefly refer to the procedural history of the matter:
3.1 ln 2006 the Applicant
instituted action for damages against the Minister of Justice and the
State Tender Board. It was alleged
that the damages emanated from the
alleged negligent rejection of tenders for transcription services for
all high courts and labour
courts throughout the Republic of South
Africa.
3.2 An exception was
raised against the Applicant's particulars of claim on the basis that
negligence in adjudicating a tender does
not give rise to a delictual
claim and therefore that the particulars of claim did not disclose a
cause of action.
3.3 The exception
resulted in a number of amendments to the Applicant's particulars of
claim and the present set of papers commences
with amended
particulars of claim dated 20 November 2012 wherein it is alleged
that the Minister of Justice and/or the State Tender
Board and/or
their employees for whom they are vicariously liable assessed
competing tenders dishonestly and/or in bad faith and/or
fraudulently
"...
by misrepresenting certain information to enhance the
tender of
a
supplier who would be granted the contract,
causing plaintiff to suffer damages for loss of potential profits in
the amount of R92
million".
3.4 In his plea, the
Minister of Justice raised a special plea that the State Tender Board
had been abolished and that the Applicant's
new cause of action
raised in its amended particulars of claim had become prescribed. A
plea on the merits was also delivered.
3.5 Due to the fact that
no plea was delivered on behalf of the State Tender Board as cited,
the Applicant sought default judgment
against it. The application for
default judgment was refused and the Applicant unsuccessfully sought
leave to appeal against the
refusal of the default judgment from the
court a
quo,
the Supreme Court of Appeal and the
Constitutional Court.
3.6 Hereafter a number of
other interlocutory applications followed.
[4]
CURRENT APPLICATIONS:
After a debate with Mr
Munilall, it appears that the current applications which he had set
down and wished to have adjudicated are
the following:
4.1
The
"constitutional application for declarations"
:
This is an application in
which the Applicant seeks 11 declaratory orders. These range from a
declaration that alleged directions
issued by the Deputy President of
this division on 4 December 2014 that the Applicant is entitled to
enrol his matters on the unopposed
court roll remain binding on
parties to a declaration that Section 12(1) of the State Tender Board
Act, 1968 "...
has been operational in various high courts
and the Supreme Court of Appeal wherein numerous court orders in
favour of or against
the STB have been granted...".
4.2
The first
"provisional'
application for leave to
appeal
:
Together with the
aforementioned application the Applicant delivered a
"provisional'
application for leave to appeal wherein he claimed leave to
appeal in the event of the application for
"constitutional
declarations"
being refused.
4.3
The supplementary
application for declarations
:
In a more recent
application for declaratory orders (delivered on 17 June 2016) the
Applicant claims that:
"...
the
following supplementary declaratory relief is applied for:
Declared
(1) That the State
Tender Board Act No. 86
of
1968 was not repealed in 2005
as
advised by the office of the Chief State Law Advisor
Declared
(2) Therefore the
State Tender Board (STB) which includes the Director-General of the
Department of Finance
as
well
as
his/her employees and
officials who have powers to sue and be sued and pay court orders
under Section 12(1) did not cease to have
these powers at any time
Declared
(3) That the Applicant
is
therefore entitled to further relief based on these
declarations
as
the next court hearing his final applications
may
deem to be appropriate."
4.4
The Rule 30(2)(b)
proceedings
:
The current Third
Respondent objected to the supplementary application for declarators
as constituting an irregular proceeding.
The grounds of objection
were that the notice of motion was argumentative and did not comply
with the provisions of Rule 6 of the
Uniform Rules and that the
application purported to seek declaratory relief against the Treasury
which is not a party in the trial
action in which the Defendants are
still only the Minister of Justice and the State Tender Board. The
Third Respondent further
claimed that the relief sought in the
application for declaratory relief cannot be sought or granted
piecemeal and that the issues
raised therein should be addressed and
decided upon in the trial action together with the adjudication of
the First Respondent's
special plea pertaining to the State Tender
Board.
4.5
The Applicant's
"counter notice"
in terms of Rule
30(2)(b}
:
In this notice, supported
by an affidavit, the Applicant objects to the Third Respondent's
notice in terms of Rule 30(2)(b) as
inter alia
allegedly being
constitutionally invalid and prohibited by Section 36(2) of the
Constitution. The Third Respondent's notice is accused
of being null
and void
ab initio
and displaying an
"unlawful
intention".
4.6
The Applicant's
application in terms of Rule 30(1)
:
In this application the
Applicant formally applies for the setting aside of the Third
Respondent's notice in terms of Rule 30(2)(b)
as an irregular
proceeding itself.
4.7
Application for
rescission
:
In this application the
Applicant applies that the three declaratory orders sought in his
"supplementary application for constitutional declarations"
be used as the foundation to further declare that the court was
allegedly fraudulently misled on a point of law and fact that the
Second Respondent (the STB) had ceased to exist in 2005 and, based
thereon the Applicant applies for the rescission of the refusal
of
his application for default judgment against the State Tender Board.
In the affidavit supporting this application, the Applicant
stated
the following:
"5.
Despite
lacking locus standi, the STB duly instructed its attorneys to put up
an affidavit after set down on the unopposed roll
that later turns
out to be an irregular proceeding and an act of perjury and fraud ...
6. At the hearing on
13 May 2013 the Second Respondent (STB) through its in-house
instructing attorneys, the State Attorney and
its counsel Adv Maritz
SC
used the act of perjury as
a
foundation to
fraudulently mislead the court that STB had ceased to exist in 2005
before I issued summons.
7. The Honourable
Court placed its trust in the State Attorney knowing better than I do
and refused default judgment. It held that
default judgment cannot be
granted against
a
non-existing party...
8. There are no facts
before court to even remotely suggest an innocent mistake has been
made and it is not perjury and fraud.
9.
Perjury and fraud
therefore remain intentional acts that have misled the Honourable
Court with the incorrect evidence and defrauded
me of due relief"
The Applicant also
applies for condonation for the late delivery of this application for
rescission.
4.8 "
Provisional
application for leave to appeal':
As at a previous
instance, the Applicant had already delivered an application for
leave to appeal, should the judgment on his abovementioned
application go against him.
4.9
The application to
strike out
:
Not surprisingly, the
Respondents (presumably only the First, Third and Fourth Respondents)
applied that the Applicant's entire
Rule 30 application to have the
Respondents' Rule 30 notice struck out as an irregular step and the
Applicant's
"notice of opposition"
filed on 8
September 2016 be struck out on the basis that both documents are
vexatious and contain numerous
"baseless defamatory and
malicious allegations of dishonesty and fraudulent conduct by the
Respondents and their legal representatives.
The insulting
baseless
criticism levelled at the Respondents' attorney of
record and counsel are malicious, insufferable and vexatious in the
extreme".
[5] At the hearing of the
application I enquired from Mr Munilall whether his
"provisional”
applications for leave to appeal are not premature and
presumptuous. He thereupon withdrew these applications.
[6]
I have set out the procedural history and the nature of the current
applications to be adjudicated upon in some detail to indicate,
not
only the interwovenness thereof but the fact that the existence
(and/or the abolishment) of the State Tender Board is central
or
largely determinative of all the applications. Apart from the
existence and provisions of the State Tender Board Act, No. 86
of
1968, this is a factual issue. The determination of this factual
issue would also assist a court in determining the remainder
of most
of the relief claimed by the Applicant and will, apart from the
procedural aspects, furnish a factual backdrop against
which the
issues of impropriety referred to in the application for striking out
can be adjudicated.
[7]
During the debate which preceded the possible argument of the various
applications, Mr Munilall indicated that he was not ready
to proceed
and that his constitutional rights and/or his
audi alterem partem
rights might be prejudiced if he is forced to proceed at this
juncture. He therefore needed a postponement of the matter to which
the First, Third and Fourth Respondents acquiesced on condition that
the Applicant pays the costs.
[8]
To my mind a simple postponement of the matter would be impractical
and would probably result in another judge having to wade
through
hundreds of pages and various interlocutory applications with the
main factual issue as indicated above still remaining
outstanding.
This would not assist in the administration of justice or contribute
to a finalisation of the matter.
[9]
The fact that the main action between the Applicant and the First
Respondent is still pending, is also a factor which weigh
heavily and
which I considered in the formulation of the order which I propose to
make. Insofar as costs are concerned l had proper
regard to the
issues described by me above and the nature of the Applicant's
applications as well as the fact that it was the Applicant
who had
forced the First, Third and Fourth Respondents to brief counsel and
attend to court and it is furthermore the Applicant
who sought a
postponement of the matter whilst the said Respondents were ready to
argue the applications and proceed therewith.
In the exercise of my
discretion I deem it appropriate in the circumstances that the said
Respondents should be recompensed for
their expenses. I am fortified
in this view by the fact that no reason could be gleaned from thr
papers nor was any furnished as
to why the trial had not yet been set
down for hearing and why the matter was allowed to limp along by way
of interlocutory applications
after the Applicant had been
unsuccessful in his attempts to obtain default judgment and after
various attempts to seek leave to
appeal against such refusal were
also unsuccessful.
[10
] ln the premises I make the following order:
10.1 The interlocutory
applications delivered by the parties up to 13 September 2016 are
postponed
sine die.
10.2 The issue regarding
the status and existence (or not) of the State Tender Board is
referred for adjudication in the trial between
the parties in the
main action.
10.3 The Applicant is
ordered to pay the costs of the hearing of the applications on 9
September 2016 and 13 September 2016.
--------------------------------------------
N DAVIS
ACTING
JUDGE OF THE HIGH COURT
Date
of hearing: 13 September 2016
Judgment
delivered: 23 September 2016
Applicant:
Mr Vishnu Munilall
On
behalf of: Vishnu Minilall & Associates
c/o
Pillay Thesigan Attorneys
742
WF Nkomo Street Proclamation Hill
Pretoria
West
Pretoria
Counsel
for First, Third
and
Fourth Respondents: Adv S Maritz SC
Attorneys
for First, Third
and
Fourth Respondents: The State Attorney Pretoria