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[2013] ZAECELLC 6
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Evaluations Enhanced Property Appraisals (Pty) Ltd v The Buffalo Metropolitan Municipality and Others (EL 1544/12, ECD 3561/12) [2013] ZAECELLC 6 (25 June 2013)
15
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION)
HELD
AT EAST LONDON
CASE
NO: EL 1544/12
ECD
3561/12
Date
heard: 11 June 2013
Date
delivered: 25 June 2013
REPORTABLE
In
the matter between:
EVALUATIONS
ENHANCED PROPERTY
APPRAISALS
(PTY) LTD
.......................................................................
Applicant
and
THE
BUFFALO METROPOLITAN MUNICIPALITY
.....................
1
st
Respondent
PRIMELAND
PROPERTIES (PTY) LTD
......................................
2
nd
Respondent
AND
THE FURTHER RESPONDENTS
AS
PER ANNEXURE “A” TO THE NOTICE
OF
MOTION FILED BY THE APPLICANT
ON
27 NOVEMBER 2012
.......................................................
Further
Respondent
JUDGEMENT
DUKADA
J:
[1]
As previously observed by the Supreme Court of Appeal in a number of
cases, awards of tenders are “
a
fruitful source of litigation which has led to Courts being swamped
with cases concerning complaints about the award of contracts.”
1
The
case at hand is one of them.
[2]
The essential facts are largely common cause and are these.
During
2011 or 2012 tenders were called for by the first respondent for
contract No.2953, inviting bids from experienced and suitably
qualified registered property valuers for the compilation and
maintenance of the general valuation rolls as well as the supply
of
other valuation related services in compliance with the Local
Government Municipal Property Rates Act, 2004 (Act No.6 of 2004).
The
tender document contained a number of conditions, the details of
which are not necessary at this stage.
The
date of valuation was determined as 1 July 2013 and the
implementation of the certified valuation was to take effect on 1
st
July 2014. The closing date for the submission of the tenders was 14
February 2012.
The
applicant submitted its tender before that closing date. The second
and further respondents also submitted their tenders. Later
the
applicant discovered in the website of the first respondent that the
tender had been awarded to the second respondent. After
the tender
had been awarded to the second respondent the applicant was never
notified of that decision and that her bid has failed.
Applicant
made numerous attempts during or about August 2012 to get information
from the first respondent about the outcome of the
invitation to
tender but in vain.
On
the 21 August 2012 the applicant wrote a letter to the Municipal
Manager of the first respondent the relevant contents of which
read
as follows:-
“
We
have on numerous occasions over the past two weeks, enquired on the
outcome of the process regarding the General Valuation 2013
Tender
Contract No. 2953, as an interested party to the process. We have
recently been informed by Supply Chain for the Municipality,
Mr
Christian Mkhosana, that the General Valuation Project Tender has
been awarded. We hereby require as a matter of urgency, your
written
response as to whether the award has been made or whether the tender
is still in the process of being adjudicated.
We
urge you to treat our request as urgent as if the tender has already
been awarded it is our intention to lodge an objection against
the
decision by the Municipality to award this tender in terms of Section
62 of the Municipal Systems Act and to record our dissatisfaction
with the entire process including the adjudication process leading up
to any such award.
------------
------------
-----------
Furthermore
if the award has been made and a service provider been appointed at
this late stage, we request the urgent disclosure
of all
documentation on the entire process, scoring and technical competence
of the service provider.
We
advise that should you fail to respond to our above urgent request by
the close of business on the 14 September 2012 we propose
instructing
Counsel to move an urgent application in the High Court for the
following relief:-
that
the project to be stopped based on it being awarded irregularly; and
for
a comprehensive forensic investigation into the process by the
Office of the Public Protector and or the Special Investigating
Unit;
that
the cost of the action be paid by you”.
The
first respondent did not respond to this letter and applicant’s
attorneys wrote a letter on the 3 October 2012 calling
upon the first
respondent to respond to the afore-quoted letter before the close of
business of the day failing which the applicant
would proceed with an
urgent application in the High Court.
First
respondent replied by her letter dated 11 October 2012 in which she
basically called upon the applicant to comply with the
requirements
of the Promotion of Access to Information Act 2 of 2002.
On
the 5 November 2012 the first respondent wrote a letter to
applicant’s attorneys informing them that it has not received
the requisite standard complaint form and that it would continue to
implement the General Evaluation Project as further delays
would
impact on its progress.
The
first respondent further wrote a letter to the applicant on the 16
October in response to the latter’s letter of 11 October
2012,
advising that no Service Level Agreement has been signed yet and that
the project had not yet started.
Applicant’s
attorneys again wrote a letter to the first respondent on the 7
November 2012 advising that they have been instructed
to move an
interdict on an urgent basis which will seek to interdict the
awarding of the Tender Contract No.2953 and/or interdict
the
implementation of the award of the tender.
Applicant’s
attorneys further wrote a letter to first respondent on the 8
November 2012 requesting,
inter alia
, the confirmation of
whether or not the tender has been awarded and if the tender has been
awarded, to whom it was awarded and
when it was awarded.
On
the 23 November 2012 the first respondent wrote to applicant’s
attorneys setting out the chronology of events that have
happened
between the parties and informing the applicant that a request for
access to information must be made on a form in accordance
with
section 18(1) of the Promotion of Access to Information Act 2 of 2000
(the PAIA). The letter also informed the applicant that
contract
no.2980 was awarded to Primeland Properties (Pty) Ltd on 16 August
2012 and that a service level agreement has been signed
with the
successful tenderer.
Applicant,
however, states that she received this letter via e-mail by her
attorneys on the 28 November 2012.
This
application was thereafter launched on the 27 November 2012 on an
urgent basis. Part A of the Notice of Motion sought orders
for the
delivery by the first respondent to the applicant of some copies of
documents including a copy of the letter of the award
of the tender
to the second respondent, an order interdicting and restraining the
first and second respondents from awarding and/or
concluding and/or
implementing any agreement (whether Service Level Agreement or
otherwise) in respect of the contract No. 2953
pending finalisation
of the review application referred to in Part B of the Notice of
Motion, and also ordering first respondent
to provide such reasons as
may be appropriate and as envisaged in Rule 53 of this Court in
respect of the award of the afore-said
contract to the second
respondent.
In
part B of the Notice of Motion applicant sought an order,
inter
alia
reviewing and setting aside the decision of the first
respondent to award the contract to the second respondent.
First
and second respondents opposed the application and delivered
answering affidavits to which applicant replied. The first and
second
respondents challenged the application on a number of grounds
including lack of urgency and applicant’s failure to
exhaust
internal remedies.
The
matter then came before Revelas J and was argued on the 14 December
2012. Judgment was delivered on the 20 December 2012 granting,
among
others, an interim interdict order as mentioned above and ordered the
first respondent to furnish reasons, as envisaged in
Rule 53, in
respect of contract No. 2953 to the respondent by not later than 11
January 2013. It also ordered that that order would
lapse on Friday
18 January 2013 at 12H00 if the applicant had not filed his
application for review by that date.
[3]
First respondent delivered to the applicant’s attorneys the
reasons for the award together with supporting documents on
the 11
January 2013.
[4]
Applicant delivered a supplementary Notice of Motion on the 18
January 2013 which sought orders mainly reviewing and setting
aside
the decision of the first respondent to award Contract No. 2953 to
the second respondent and an order substituting the said
decision
with an order awarding the contract to the applicant.
Applicant
also delivered a supplementary founding affidavit to which the first
respondent answered and applicant also replied.
The
matter then came before me and argued on the 11 June 2013.
[5]
The first and second respondents have raised a point in
limine
to the effect that the applicant has failed to exhaust the internal
remedy provided by section 62 of the Local Government: Municipal
Systems Act 32 of 2000 (the Municipal Systems Act) by giving written
notice of the appeal and the reasons to the Municipal Manager
prior
to the institution of the review proceedings. Futhermore according to
Section 7 (2) of Promotion of Administrative Justice
Act (PAJA), the
applicant is precluded from pursuing its review in the absence of an
application to be exempted from the provisions
of section 7(2) on the
basis of exceptional circumstances and for which no application is
made by the applicant.
[6]
All parties agreed that only the point in
limine
be argued at
this stage.
[7]
Mr Buchanan SC, Counsel for the applicant has argued that section
7(2) of PAJA refers to an effective remedy whereas the appeal
referred to would not have been as such in this matter.
He
contended that the requirements of section 7(2) of PAJA should not be
utilized by organs of the State to frustrate or delay the
rights of
an individual to obtain relief.
He
referred me to
Koyabe v Minister for Home Affairs
2010 (4) SA
327
(CC) at para 38.
He
further submitted that an aggrieved party cannot appeal against a
decision in terms of the Municipal Systems Act if he has not
been
notified of such decision. The first respondent only advised the
application of the decision on the 28 November 2012 which
was when
this applicant had already been launched. He sketched out the
chronology of the events and correspondence which was exchanged
between the parties prior to the institution of these proceedings on
the 27 November 2012.
Mr
Smuts SC, Counsel for the first respondent, submitted that from
applicant’s letter of the 21 August 2012 it is clear that
applicant was aware of the provisions of Section 62 of the Municipal
Systems Act. He referred to various paragraphs in applicant’s
replying affidavit where applicant maintained a position that in his
afore-quoted letter of the 21 August 2012 he was invoking
Section 62
of the Municipal System Act. Applicant further denied that he failed
to exhaust internal remedies as alleged or at all.
Mr
Quinn SC, Counsel for second respondent, stated that there is no
application for exemption from exhausting internal remedies.
He
contended that applicant’s stand is clear from its affidavit
that she has exhausted internal remedies and it relies for
that on
her letter of the 21 August 2012.
He
submitted that this application falls to be dismissed on this point
in
limine.
In
reply Mr Buchanan submitted that the Municipal Manger could have
given notification of the decision in respect of the award of
the
tender by fax or e-mail. He submitted that the first respondent also
had to respond fully and timeously to questions that were
asked by
the applicant but she failed to do so.
[8]
It is now trite law that the process of bidding for tenders
evaluating and adjudicating upon such tenders, and awarding such
tenders constitutes an administrative action under the Constitution
2
.
It
has been held that PAJA gives effect to Section 33 of the
Constitution of the Republic of South Africa Act, No. 108 of 1996
(The Constitution).
That
entitles the applicant to a lawful and procedurally fair process and
an outcome, where its rights were affected or threatened,
justifiable
in relation to the reasons for it.
3
Consequently
these proceedings are subject to the procedures and provisions of
PAJA.
[9]
The relevant provisions in this matter are in Section 7(2) of PAJA
which provides:-
“
7(2)
(a) subject to paragraph (c), no Court shall review an administrative
action in terms of this Act unless any internal remedy
provided for
in any other law has first been exhausted.
(b)
Subject to paragraph (c), a Court or tribunal must, if it is not
satisfied that any internal remedy referred to in paragraph (a)
has
been exhausted, direct that the person concerned must first exhaust
such remedy before instituting proceedings in a Court or
tribunal for
judicial review in terms of this Act.
(c)
A Court or tribunal may, in exceptional circumstances and on
application by the person concerned, exempt such person from the
obligation to exhaust any internal remedy if the Court or tribunal
deems it in the interest of justice.”
[10]
The effect and meaning of Section 7(2) of PAJA was discussed and
analysed by Jafta JA (as he then was) in
City
of Cape Town v Reader and Others
4
where
the Court was faced with a similar issue as in the present case,
namely whether Section 7(2) of PAJA precluded an aggrieved
party from
seeking an order reviewing and setting aside a decision of the
municipality until he had exhausted internal remedies.
Jafta
JA (as he then was) remarked as follows at para 12:-
“
Generally
speaking s 7(2) excludes, albeit temporarily, the Court’s
jurisdiction on review proceedings where there is provision
for an
internal remedy. In those circumstances the aggrieved person’s
right of access to Courts or other independent and
impartial
tribunals is denied until he or she has exhausted the internal
remedy. The subsection is concluded in peremptory terms
which oblige
every reviewing Court to decline to hear a review application bought
under PAJA until the aggrieved party has exhausted
internal
remedies.
5
[11]
Another provision which applies in this matter is Section 62 of the
Municipal Systems Act which affords the aggrieved party
an internal
remedy contemplated in Section 7(2) of PAJA. That Section provides:-
“
1.
A person whose rights are effected by a decision taken by a political
structure, political office bearer, councillor or staff
member of a
municipality in terms of a power or duty delegated or sub-delegated
by a delegating authority to the political structure,
political
office bearer, councillor or staff member, may appeal against that
decision by giving written notice of the appeal and
reasons to the
Municipal Manager within 21 days of the date of the notification of
the decision.
2.
The Municipal Manager must promptly submit the appeal to the
appropriate appeal authority mentioned in subsection (4).
3.
The appeal authority must consider the appeal, and confirm, vary or
revoke the decision, but no such variation or revocation
of a
decision may detract from any rights that may have accrued as a
result of the decision.
4.
When an appeal is against a decision taken by ----
(a)
a staff member other than the Municipal Manager, the Municipal
Manager is the appeal authority;
(b)
the municipal manager, the executive committee or executive mayor is
the appeal authority, or, if the municipality does not
have an
executive committee or executive mayor, the council of the
municipality is the appeal authority; or
(c)
a political structure or political office bearer, or a councillor----
(i)
the municipal council is the appeal authority where the council
comprises less than 15 councillors; or
(ii)
a committee of councillors who were not involved in the decision and
appointed by the Municipal Council for this purpose is
the appeal
authority where the council comprises more than 14 councillors.
5.
An appeal authority must commence with an appeal within six weeks and
decide the appeal within a reasonable time.
6.
The provisions of this section do not detract from any appropriate
appeal procedure provided for in any other applicable law”.
[12]
In
casu
applicant’s rights have been affected by a
decision taken by the Municipal Manager in terms as a power duly
delegated to him.
It is common cause that this question in issue at
this stage in this matter falls squarely within the threshold of
section 62 of
the Municipal Systems Act.
[13]
Section 62(1) gives to a person whose rights are affected by the
decision in question a right to “
appeal against that
decision by giving written notice of the appeal and reasons to the
Municipal Manager within 21 days of the date
of the notification of
the decision”.
Putting this in the context of this matter,
the applicant had a right to appeal against the decision of the
Municipal Manager of
the first respondent of awarding the tender to
the second respondent instead of him, by giving written notice of his
appeal and
reasons to the Municipal Manager written 21 days of the
date of the notification of the decision.
[14]
It is common cause that section 62(1) of the Municipal Systems Act
affords the internal remedy contemplated in section 7(2)
of PAJA.
What needs to be considered is whether the applicant has exhausted
the internal remedy provided for in the said section
62 before
approaching this Court for the review of the said decision.
[15]
The applicant wherever in the papers of this matter she is challenged
of failing to exhaust the internal remedy in terms of
section 62(1)
of the Municipal Systems Act, she maintains a position that it has
done so and refers in his support to her afore-quoted
letter written
to the Municipal Manager on the 21 August 2012. The particular
paragraph of this letter which deals with this aspect
reads:-
“
We
urge you to treat our request as urgent as if the tender has already
been awarded it is our intention to lodge an objection against
the
decision by the Municipality to award this tender in terms of Section
62 of the Municipal Systems Act and to record our dissatisfaction
with the entire process including the adjudication process leading up
to any such award.”
[16]
As stated above section 62 requires a party noting an appeal against
the decision in question to
give written notice of the appeal and
reasons
to the Municipal Manager within 21days of the date of the
notification of the decision. In my view to simply say in a letter.
“
it is our intention to lodge an objection against the
decision by the Municipality to award this tender in terms of Section
62 of
the Municipal Systems Act,”
does not constitute an
“
act of appealing
” (so to say) in the context of
section 62.
The
argument to that extent has not merit at all and falls to be
rejected.
[17]
The other question to consider is what the date of notification of
the decision was from which date within 21 days the applicant
was
expected to appeal. The key word in this question is “
notification
”.
As to what “
notification
” means is not defined in
the Municipal Systems Act and I had to resort to the shorter Oxford
English Dictionary, Vol.2, 3
rd
Edition where the word is
defined as “
the action of notifying
”; the verb
“
notify”
is defined to mean “
to give
notice, to inform
”. Following the so-called “
golden
rule of interpretation
”, in my view, the ordinary
grammatical meaning of “
notification
” means that
the applicant had to give his written notice to appeal and reasons to
the Municipal Manager within 21 days after
he had been notified or
informed of the decision and in my view, such notification or act of
informing the applicant should have
been in writing. Section 62
requires the affected person to give the notice of appeal in writing
and reasons to the Municipal Manager,
to me that requirement of
writing should fairly and justly equally apply to the maker of the
decision in notifying the affected
person. I do not think the
legislature intended otherwise. Mr Smuts has submitted that the
applicant knew of the decision awarding
the tender on the 21 August
2012 when he was informed by Mr Christian Mkhosana of Supply Chain
for the Municipality. He argued
that the notification of that
decision occurred at that time.
Mr
Buchanan has argued that the information that the applicant got on
the said 21 August 2012 from the Supply Chain for the Municipality
was only verbal and he received no confirmation that the decision
awarding the tender was made. He further submitted that the Municipal
Manager should have given notification of the decision in writing,
even by fax or e-mail.
I
fully agree with Mr Buchanan. This decision concerns a tender in
respect of a very important work or services involving the
compilation
and maintenance of the general evaluation roll, asset
register of all municipal properties and supplementary valuation
rolls, as
well as the supply of other valuation related services in
compliance with the
Local Government: Municipal Property Rates Act,
No.6 of 2004
. The tender required bids from experienced and suitably
qualified registered property valuers. It is common knowledge that
rates
are a source of revenue for the Municipality which enable it,
inter alia,
to provide services to the people. The assessment
of rates of course has financial implications to the rate- payers
I
cannot for a moment accept that it would be reasonable to expect that
a bidder would get notification in the manner in which the
applicant
got to know that the tender award decision has been made.
[18]
The other dimension to this aspect is my difficulty to understand how
the applicant could have been expected to formulate a
notice of
appeal and the reasons therefore as required by
section 62(1)
when he
just heard verbally of the tender award decision from someone in the
Supply Chain for the Municipality who did not even
make the decision.
Although
section 62(1)
does not specifically state that the
notification of the decision must be accompanied by the reasons for
that decision, I am of
the view that in our present Constitutional
democracy, the maker of that decision is obliged to give reasons for
it.
[19]
Furthermore Section 33(2) of the Constitution gives a right to
written reasons to those whose rights have been adversely affected
by
administration and PAJA was enacted to give effect to that right and
other administrative justice rights. In the preamble of
PAJA its
purpose,
inter alia
, is stated as “
to create a
culture of accountability, openness, and transparency in the public
administration or in the exercise of public power
or the performance
of a public function, by giving effect to just administrative
action.”
In my view, these provisions read together obliged
the maker of this tender award decision also to give reasons in the
notification
of the decision. The applicant was one of the bidders to
the tender and surely applicant can be expected to be anxious to know
the basis on which her bid failed and the other succeeded. The
reasons for the decisions would enable applicant to formulate
properly
the notice of appeal and its reason as required by section
62(1) of the Municipal Systems Act. Those reasons would also assist
her in a subsequent review, if any, to set aside that decision.
Mokgoro
J in
Koyabe v Minister for Home Affairs
, supra while
considering the question whether reasons should be furnished in
respect of a decision made in terms of section 8(1)
the Immigration
Act No 13 of 2002 which did not specifically require reasons for the
decision, remarked as follows at paragraph
62:-
“
Further,
in our Constitutional democracy, officials are enjoined to ensure
that the public administration is governed by the values
enshrined in
our Constitution. Providing people whose rights have been adversely
affected by administrative decisions with reasons,
will often be
important in providing fairness, accountability and transparency. In
the context of a contemporary democratic public
service like ours,
where the principles of
batho
pele,
coupled
with the values of
ubuntu
,
enjoin the public service to treat people with respect and dignity
and avoid undue confrontation, the Constitution indeed entitles
the
applicants to reasons for the decision declaring them illegal
foreigners. It is excessively over-formalistic and contrary to
the
spirit of the Constitution for the respondents to contend that under
58(1) they were not obliged to give reasons.”
I
fully agree with these remarks and, in my view, they apply equally to
this matter. Section 217 of the Constitution also requires
that the
organs of the State (such as the first respondent) may only contract
for goods or services “
in accordance with a system which is
fair, equitable transparent, competitive and cost-effective
”.
[20]
Revelas J correctly remarked in her judgment in respect of an interim
order in this matter, when she said at para 13:-
“
Whereas
the applicant perhaps could have been pro-active in placing the first
respondent on specific terms, the correspondence between
the parties
strongly suggests that the first respondent was most unco-operative
by not adhering to a single request made by the
applicant (the only
other tenderer). The respondents relied ex post facto and repeatedly
on the applicant’s knowledge of
the outcome of the tender award
as early as 21 August 2012. It was not open to the respondent to rely
on its website aunouncements
to attribute specific knowledge to the
applicant in the circumstances where the applicant had been asking
for detailed information
and documentation about the tender.”
Turning
to this case I cannot understand why the first respondent, in the
observance of our Constitutional culture of accountability,
openness
and transparency, she failed to be accountable, open and transparent
enough in respect of this tender award by simply
notifying the
applicant of her decision and give reasons therefore.
Instead
the respondent failed to do so despite repeated requests for her to
confirm whether she has made the tender award decision,
until after
these review proceedings were instituted.
[21]
Although, as remarked by Revelas J above, the applicant perhaps could
have been more pro-active in protecting and enforcing
her rights to
be furnished with the tender award decision and the reasons
therefore, the conduct of the first respondent cannot
be
countenanced.
It
is apt as this juncture to quote the following remarks by Mokgoro J
in
Koyabe v Minister for Home affairs, supra at para 38:-
“
The
duty to exhaust internal remedies is therefore valuable and necessary
requirement in our law. However, that requirement should
not be
rigidly imposed. Nor should it be used by administrators to frustrate
the efforts of an aggrieved person or shield the administrative
process from judicial scrutiny. PAJA recognises this need for
flexibility, acknowledging in s 7(2) (c) that exceptional
circumstances
may require that a Court condone non-exhaustion of
internal process and proceed with judicial review nonetheless. Under
s 7(2)
of PAJA, the requirement that an individual exhaust internal
remedies is therefore not absolute”
In
casu
I am not prepared to acquiesce to a situation which is
akin to frustrating the efforts of an aggrieved person or shield the
administrative
process from judicial scrutiny, for to dismiss this
application only on this point in
limine
would, in my view, be
tatamount to that.
[22]
I may mention that the issue of an exemption from exhausting an
internal remedy does not arise in this matter as no application
therefore was made to this Court. Consequently that option to resolve
this matter is not available for consideration.
[23]
I am mindfull of the following remark by Mokgoro J in Koyabe case,
supra at para 35:
“
Internal
remedies are designed to provide immediate and cost-effective relief,
giving the executive the opportunity to utilise its
own mechanisms,
rectifying irregularities first, before aggrieved parties resort to
litigation. Although costs play a vital role
in providing litigants
with access to justice, the importance of more readily available and
cost-effective internal remedies cannot
be gainsaid.”
[24]
As far as the argument that the appeal in terms of section 62 would
not have been an effective remedy in this matter, I respectfully
do
not agree with that argument. In fact there is no factual basis to
support that argument.
[25]
Regarding the question of time in this matter, in my view, had the
first respondent give notification of her decision together
with
reasons immediately after making the decision an ample time could
have been saved in respect of the project in question.
[26]
I am of the view that a solution of this matter at this stage lies in
section 7(2) (b) of PAJA which states:-
“
S
ubject
to paragraph (c) a Court or tribunal must, if it is not satisfied
that any internal remedy referred to in paragraph (a) has
been
exhausted, direct that the person concerned must first exhaust such
remedy before instituting proceedings in a Court or tribunal
for
judicial review in terms of this Act.”
[27]
I have concluded that the applicant has not exhausted the internal
remedy referred to in Section 62(1) of the Municipal Systems
Act.
COSTS
[28]
Regarding the question of costs I have taken into account that
despite the fact that the applicant came to this Court on review
without exhausting the internal remedy provided for in Section 62 of
the Municipal Systems Act, in the same way the unco-operative
and
over-formalistic conduct of the first respondent, who treated the
applicant as though she has no right to be informed or notified
of
the tender award decision in the first place, was unhelpful and not
without fault. The utter disregard or lack of insensitivity
to the
culture of openness, transparency, fairness and justice on the part
of administrators in this Constitutional era cannot
be tolerated.
As
far as the second respondent is concerned she aligned herself with
the first respondent in regard to the point in
limine
.
Consequently they are treated alike in regard to the question of
costs.
In
my view a costs order against the applicant would not be just and
equitable in the circumstances of this case. In the result
I will
make no order as to costs.
[29]
In the circumstances the following order shall issue:-
The
applicant is directed to proceed within seven (7) days of this
judgment with the appeal in terms of Section 62 of the Local
Government : Municipal Systems Act 32 of 2000;
That
the present review proceedings are hereby postponed sine die pending
the outcome of the appeal mentioned in (1) above;
There
is no order as to costs at this stage.
____________
D.Z.DUKADA
JUDGE
OF THE HIGH COURT
Appearences:-
For
the Applicant : Adv Buchanan SC
Instructed
by Smith Tabata Inc
EAST
LONDON
For
the 1
st
respondent : Adv Smuts SC
Instructed
by Conlon Associates Inc
EAST
LONDON
For
the 2
nd
respondent : Adv Quinn SC
Instructed
by Jonathan Clark Attorneys
EAST
LONDON
1
Groenewald
v M 5 Developments
2010 (5) SA 82
(SCA) at 83 A; Moseme Road
Construction CC and Others v King Civil Engineering Contractors
(Pty) Ltd and Another
2010 (4) SA 359
(SCA) at 361 A-B
2
Lodbro
Properties CC v Bedderson NO and Others
2003 (2) SA 460
(SCA) at
para 5
3
Koyabe
v Ministe for Home Affairs, s, at para 32
4
2009
(1) SA 555 (SCA)
5
See
also Nichol and Another v Registrar of Pension Funds and Others
2008
(1) SA 383
(SCA) at para 15; and Koyabe v Minister for Home Affairs,
supra
at para 46-48