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[2015] ZAGPPHC 449
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Valazone 268 CC and Others v Head of Department Mpumalanga Department of Education (49114/14) [2015] ZAGPPHC 449 (22 June 2015)
REPUBLIC
OP IOUIH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE
NO: 49114/14
DATE:
22 JUNE 2015
In
the matter between:
VALAZONE
268 CC A 6
OTHERS
................................................................................
APPLICANTS
And
HEAD
OF
DEPARTMENT
............................................................................................
RESPONDENT
MPUMALANGA
DEPARTMENT OF EDUCATION
JUDGMENT
(LEAVE
TO APPEAL)
KUBUSHI,)
[1]
The applic
ant
hereby applies for leave to appeal to the Supreme Court of Appeal of
South Africa (SCA) alternatively to the Constitutional
Court of South
Africa (CC), against the whole of the judgment and order I delivered
and made on Tuesday, 7 April 2015, inter alia,
reviewing and setting
aside the decision by the applicant not to award and to cancel and
re-advertise the tender, bid no: EDU/069/13/MP,
and that the
applicant is to pay the costs of the applications of the first to
third and fifth to eighth respondents.
[2]
In terms of
s 17
(1)
(a)
(i) of the
Superior Courts Act 10 of 2013
, leave to appeal may only
be given where the judge or judges concerned are of the opinion that
the appeal would have a reasonable
prospect of success.
[3]
The
test for reasonable prospects of success postulates 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 a trial court.
In order to succeed, therefore, the applicant
must convince the
court, on proper grounds, that he or she 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 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.
[I]
[4]
The applicant in her application for
leave to appeal, raises various grounds for the relief she seeks and
in particular the following:
[5]
That I erred and/or misdirected myself
in law in finding or holding, in paragraph [31] of my main judgment,
that the fact that there
are no allegations of bias or corruption in
the respondents’ founding papers, or that the first to seventh
respondents’
counsel only canvassed such allegations during
oral argument does not make the respondents nonsuited to rely on
grounds of
bias or corruption.
[6]
That I erred and/or misdirected myself
in finding or holding in paragraphs [30] and [3t] of my main judgment
that the applicant’s
supplementary heads of argument are of no
assistance and that the authority in paragraph [14] of the SAPO
judgment does not find
application in the current matter because the
requirements of the allegation of bias or corrupt (or fraudulent)
conduct should
be alleged where the claim is for damages (and where a
party is
“seeking to review an administrative
decision”).
[7]
That I erred and/or misdirected myself
in finding or holding in paragraphs [32] and [37] of my main
judgment, that the new relief
sought by respondent 8 is ancillary to
the main relief to have the decision of the applicant reviewed and
set aside, that it is
a remedy which respondent 8 seeks in the event
that its main relief is granted, and that in that sense it does not
mean respondent
8 is non-suited in the proceedings and thus that its
main relief must still be considered.
[8]
That I erred and/or misdirected myself
in finding or holding in paragraph [42] of my main judgment that
respondent 8 in its founding
papers reconciles itself with the
reasons advanced by respondents 1 to 7 as grounds of review of the
applicant's decision and therefore
that it would deal with their
cases together.
[9]
That I erred and/or misdirected myself
in law in finding or holding, in paragraphs [57] to [62] that the
applicant
‘subverted*
the court
order of Janse Van Niewenhuizen J, that she has not complied with the
requirement of ‘evaluation’ as envisaged
in the bid
documents and that the applicant, in order to comply with the court
order
“should have approached the court for an order to
re-advertised
[10]
That I erred and/or misdirected myself
in finding or holding, in paragraph [69] of my main judgment, that
costs of litigation (or
possible litigation) cannot be considered as
a factor when the regulation is involved, and also that the
applicant’s reliance
on
regulation 8
(4)
(b)
is further contradicted by the applicant’s statement to extend
the program for a further three years; and in taking judicial
notice
of
“budgeting process of a Department”
and
source of
“funds”
from which
the Department pays
“the costs of any litigation that
may ensue in respect of a tender"
[11]
The respondents are opposing the
application and contend that the misdirections as quoted by the
applicant do not show that there
is a reasonable prospect of success
on appeal.
[12]
To my mind, the abovementioned alleged
misdirections do justify a conclusion that, if leave to appeal is
granted, the applicant’s
prospects of success on appeal are
reasonable. The application for leave to appeal, therefore, ought to
be granted.
[13]
The applicant requests that leave to
appeal be to the SCA or the CC, because according to her counsel, one
of the points raised
relates to the definition of
‘reconsideration’
of a tender process which the SCA has already pronounced itself on.
Counsel for respondents 1 to 7 expressed the same sentiments.
[14]
In the circumstance, I issue the
following order:
1.
The application for leave to appeal to
the Supreme Court of Appeal is granted.
2.
Costs are costs in the appeal.
E.
M. KUBUSHI IUDGE OP THE HIGH COURT
APPEARANCE.
HEARD ON THE
17 JUNE 2015
DATE OP
JUDGMENT 22 JUNE 2015
APPLICANT'S
COUNSEL ADV. SHAKOANE
APPLICANT'S
ATTORNEY
THE STATE ATTORNEY, PRETORIA
1st -7
th
RESPONDENT'S COUNSEL ADV. VORSTER
1st -7
th
RESPONDENT'S ATTORNEY HUGO&NGWENVA INC.
8
th
RESPONDENT'S COUNSEL ADV. UVS
8
th
RESPONDENT'S ATTORNEY C j MKHAVELE INC
[I]
See Smith v S (475/10)
[2011] ZASCA 15
(15 March 2011) para 7 and
Greenwood v S (20075/14)
[2015] ZASCA 56
(30 March 2015) para 4.