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[2014] ZAGPPHC 246
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Seyenza Consultants CC v Mokanatle Mashilego Trading CC (A135/2013) [2014] ZAGPPHC 246 (16 April 2014)
IN THE HIGH COURT OF
SOUTH AFRICA
(GAUTENG DIVISION,
PRETORIA)
CASE
NUMBER: A135/2013
DATE:
16/4/2014
In
the matter between:
SEYENZA
CONSULTANTS
CC
Appellant
and
MOKANATLE
MASHILEGO TRADING
CC
Respondent
JUDGMENT
POTTERILL J
1
.
The
appellant is appealing against the judgment and two orders granted by
the magistrates’ court on respectively the 21
st
of October 2010 and the 29
th
of October 2010. The appeal against the judgment and order
dated the 21
st
of October 2010 has in argument fallen by the wayside.
2.
The question the court needs to address is
whether the court
a quo
could
without notice to the appellant or the Bushbuckridge Local
Municipality issue a further order pertaining to quantifying the
damages.
3.
It is necessary to set out the background
pertaining to this matter. The appellant was appointed by the
Bushbuckridge Local
Municipality to supply water services fleet
management. Pursuant to this appointment the appellant and
respondent concluded
a memorandum of understanding agreement in terms
of which the respondent supplied a water tanker to be utilised for
the supply
of water to fulfil appellant’s obligations in terms
of its appointment with the Bushbuckridge Local Municipality.
4.
The appellant informed the respondent that
its truck did not meet the required standard and it instructed it to
replace the truck.
The respondent did not replace the truck and
the appellant sent a letter of termination of the contract. The
respondent brought
a motion application to reinstate the respondent
to provide the service i.e. to continue to transport the water in
their water
tanker. Prayer B of their notice of motion
read “
that the first respondent be
ordered to pay monies that the applicant would have earned from the
date that the applicant was stopped
from operating to the date on
which the applicant shall resume as the court might order.”
; those the prayers relevant to this appeal.
5
.
The
court
a quo
then
made the following order:
“
1.
That the first respondent is ordered to allow the applicant to
continue to work to transport water
around Thulamahashe,
Bushbuckridge as per the agreement between the parties.
2.
That the first respondent is ordered to pay monies that the applicant
would have earned from
the date the applicant was stopped from
operating to the date on which the contract is resumed.”
6. On 29 October 2010 the
following draft court order was made an order of court:
“
1.
That the application is hereby granted.
2.
That the second respondent is hereby ordered to pay to the applicant
or its attorneys the
amount of R434 000.00 which money represent
damages suffered by the applicant from date of the cancellation of
the agreement
to date of judgment day.
3.
That first respondent is hereby further ordered to reinstate the
applicant’s truck,
failing which the first respondent shall be
liable for the loss of income that the applicant suffered as a result
of the unilateral
cancellation of the agreement between the parties.”
7
.
It is common cause that when this order was
made there was no adherence to the
audi
alteram partem
rule as neither the
appellant nor the Bushbuckridge Local Municipality were ever notified
of this application or were present when
this order was made.
The respondent however raises two points
in
limine
. The first point
in
limine
being that the appeal is lodged
out of time. The reason for this is that the orders were
granted on respectively 21 and 29
October 2010. The notice of
appeal in accordance with Rule 51(4) was filed on the 29
th
of November 2012, just short of two years after the orders appealed
against were granted. The appellant furthermore elected
not to
file a request for reasons from the court
a
quo
in respect of the order dealing
with the quantum. On the appeal record there is accordingly no
reasons and or grounds for
the granting of the quantum order.
In terms of the rules the appellant should have requested reasons
within 10 (ten) days
after granting of the quantum order. Upon
receiving same an appeal may be noted within 20 days after the date
of the judgment
appealed against or within 20 days after the court
a
quo
’s judgment is delivered.
It was thus submitted that the appeal had lapsed due to the
appellant’s failure to properly
note and prosecute the quantum
order alternatively that a substantial application for condonation
within which to note an appeal
should have accompanied this appeal.
8.
On behalf of the appellant it was argued
that there was a delay in this process but it was not due to the
fault of the appellant.
It is common cause that it was a
presiding officer acting on a temporary basis and that on the 24
th
of May 2011 the clerk of the court of Mhala informed the appellant’s
attorneys as follows:
“
Be
informed that the Presiding Officer of this case was on temporary
basis. Therefore the office will arrange with him to
come and
perform his duty as requested.”
In
reply thereto on page 124 this magistrate in his handwriting with the
heading ”Reasons for judgment” then sets out
that the
reasons for judgment appear on the record. It is thus quite
clear that the attorneys for the appellant attempted
to obtain
reasons for the judgment prior to 24 May 2011, but to no avail.
The notice of appeal is then in terms of Rule 51(4)
served on the
Clerk of the Court on the 29
th
of November 2012. Mr. Van As, on behalf of the respondent,
conceded that it would not be in the interests of his client or
of
justice to dismiss the appeal due to the late prosecution of the
appeal as in all likelihood a further appeal with a condonation
application will be filed and served only to be heard two years along
the line. A court is also loathe to uphold technical
points
when weight is given to the prospects of success of the appeal.
9
.
The further point
in
limine
raised was that the incorrect
procedure is followed by the appellant in appealing as a review or a
rescission of the order would
be the correct procedure to follow.
This is so because it is conceded that an irregularity took place in
the granting of
the order of the 29
th
of October 2010. A litigant has a choice to either go the
review or appeal procedure, and can elect and stand and fall by
which
procedure it chooses. In these circumstances where there is an
affidavit by an article clerk in an application for
a writ setting
out the amount of damages there certainly is no certainty pertaining
to the proof of the damages. This is
compounded by the fact
that the appellant was not afforded an opportunity to attend and
oppose the amount of damages as quantified.
I am satisfied that
although the appellant had other remedies his election of prosecuting
an appeal is not fatal and ill-conceived.
10.
In view of the fact that respondent negated
the trite
audi alteram partem
rule
this appeal must be successful. Mr. Botes, on behalf of the
appellant, argued that the costs must then follow the success
in the
appeal and that the respondent’s actions in approaching a court
without giving proper notice and then raising technical
points on the
appeal further substantiates a costs order in favour of the
appellant.
11.
Mr. Van As, on the other hand, argued that
since the appeal against the second order is slipped in by the
backdoor in that they
never requested the reasons from the
magistrate, no documents that was put before the court
a
quo
is in the appeal bundle and that
the prosecution of this appeal took two years renders the appellant
not entitled to its costs.
12.
This is very much a case wherein the
appellant did take two years to prosecute this appeal thereby
frustrating the respondent in
the execution of an order. On the
other hand the respondent took this order in an irregular fashion.
Under these circumstances
I exercise my discretion in that each party
is to pay their own costs.
13.
I accordingly make the following order:
13.1
The appeal is upheld with each party to pay their own costs.
13.2
The order of 29 October 2010 is set aside.
13.3
The costs, if any, pertaining to the order of 29 October 2010 is to
be carried
by the respondent.
__________________
S.
POTTERILL
JUDGE
OF THE HIGH COURT
I
agree
__________________
S.
POTGIETER
ACTING
JUDGE OF THE HIGH COURT
CASE
NO: A135/2013
HEARD
ON: 15 April 2014
FOR
THE APPELLANT: ADV. F.W. BOTES
INSTRUCTED
BY: Du Toit – Smuts & Mathews Phosa Inc
FOR
THE RESPONDENT: ADV. E. VAN AS
INSTRUCTED
BY: Mpho Mashiloane Attorneys
DATE
OF JUDGMENT: 16 April 2014