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[2012] ZAGPPHC 121
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National Department of Public Works v Roux Property Fund (Pty) Ltd (52530/11) [2012] ZAGPPHC 121 (28 June 2012)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
NORTH, PRETORIA DIVISION
Case
no 52530/11
DATE:28/06/2012
In
the matter between:
NATIONAL
DEPARTMENT OF PUBLIC WORKS
..........................................
Applicant
and
ROUX
PROPERTY FUND (PTY)
LTD
...............................................................
Respondent
JUDGMENT
On
the application in terms of Rules 6(15), 23(2) and 30
1.
This is an unusual interlocutory application launched by the
applicant in the principal application. In this principal application
the applicant seeks a declaratory order that a lease agreement
entered into between the parties to the principal application on
the
13th July 2010 is and was invalid ab initio.
2.
The applicant is the National Department of Public Works of c/o the
State Attorney, Manaka Heights, 8th floor, 167 Thabo Sehume
Street
(formerly Andries Street), Pretoria; hereinafter referred to as the
applicant.
3.
The respondent is Roux Property Fund (Pty) Ltd, a company of 5
Alexander Road, Irene; hereinafter referred to as the respondent.
4.
The main affidavit upon which the applicant relies for the relief
sought in the principal application is sworn to by Mr Samuel
Vukela,
who deposed thereto in his then capacity as the acting
Director-General of the applicant National Department. In essence
the
applicant's case in the principal application rests upon the
assertion that the lease agreement was entered into by the applicant
without observance of essential statutory and administrative
procurement procedures that constitute conditions precedent for the
lawful conclusion of such agreements. The individuals who acted on
behalf of the applicant in concluding the lease agreement are,
inter
alia, alleged not to have been authorised to do so. This case is
presented by Mr Vukela acting in his aforesaid capacity
on behalf of
the applicant.
5.
The respondent opposes the principal application but did not
participate in the interlocutory proceedings other than instructing
counsel on a watching brief. It is unnecessary to delve into the
issues that are contested in the principal application.
6.
Shortly after the founding affidavit was sworn to Mr Vukela was
placed on 'special leave' and is of the view that he is made
the
'sacrificial lamb' being led to slaughter to atone for the errors of
others in entering into the lease agreement, which has
been the
subject matter of an investigation and report by the Public
Protector, has achieved notoriety and has become a contentious
issue
in the political arena.
7.
After unsuccessfully attempting to engage the former Minister of
Public Works and the present incumbent of that office on the
issue of
his status within the Department, Mr Vukela decided to prepare what
is termed a 'supplementary affidavit' revealing 'further
disclosure'
of facts not mentioned in the founding affidavit which is said not to
contain any 'false or misleading allegations',
but not 'the full
picture and ail the facts'. The reason for the failure to make a full
disclosure in the founding affidavit is
described as follows: '.../
deposed to an Affidavit which was prepared by the Attorneys of the
Applicant, who is my employer. I
did not sign the aforementioned
Affidavit without difficulties. As stated in my Founding Affidavit, I
had to sign the Affidavit
as I was "directed" by the then
Minister of Public Works to do so. In such circumstances, to be brave
and refuse to sign
the Founding Affidavit would have been regarded as
being disloyal, insubordinate and would have conceivably also
prejudiced my
employment.'
8.
This explanation is in dispute, but the implications of the
'supplementary affidavit' and the reasons for its composition need
not be considered at this stage. The 'supplementary affidavit' was
filed on behalf of Mr Vukela himself by his own attorneys under
the
present case number and was served on both parties to the principal
dispute. This elicited a Notice in terms of Rules 6 (15),
23 (2) and
30 by the applicant, describing the filing of this document as an
irregular step liable to be set aside because the
'supplementary
affidavit' was filed by a person who is not a party to the principal
suit and has no personal interest in the outcome
of the principal
application; quite apart from which, and in addition, the contents of
the 'supplementary affidavit' are vexatious,
irrelevant and
scandalous. Mr Vukela has instructed counsel to oppose the
application to set aside the filing of his affidavit
or to have part
or all of it struck out.
9.
The applicant's case is clearly unanswerable. It is common cause that
the deponent to the 'supplementary affidavit' is not, cannot
be and
does not intend to become a party to the principal proceedings. This
status disentitles him from participation in the fray.
The principle
that a witness whose only interest lies in the personal effect the
outcome of proceedings between third parties may
have upon him has no
locus standi to participate in the latter has been succinctly stated
by the unanimous Court in National Director
of Public Prosecutions v
Zuma
[2009] ZASCA 1
;
2009 (2) SA 277
(A) at para
[85]
:
l[85]
Nevertheless, to be able to intervene in proceedings a party must
have a direct and substantial interest in the outcome of
the
litigation, whether in the court of first instance or on appeal —
The basic problem with the application is that the
applicants have no
interest in the order but only in the reasoning. They are in the
position of a witness whose evidence has been
rejected or on whose
demeanour an unfavourable finding has been expressed. Such a person
has no ready remedy especially not by
means of intervention. To be
able to intervene in an appeal, which is by its nature directed at a
wrong order and not at incorrect
reasoning, an applicant must have an
interest in the order under appeal.—
12.
Mr Erasmus SC has argued that the facts averred by Mr Vukala are
relevant and even essential to a proper consideration of the
principal dispute and that it is in the interests of justice to place
the same on record in these proceedings. However much the
allegations
made in the 'supplementary affidavit5 may be of interest to the
parties to the dispute - some, if not the majority,
are clearly aimed
at blaming the respective political heads of the applicant and their
attorneys for the deponent's personal predicament
and are therefore
indubitably irrelevant, vexatious and liable to be struck out on that
ground -the approach adopted by Mr Vukela
loses sight of the manner
in which civil litigation is conducted in our law. Absent any
extraordinary circumstances
-
none exist in this matter - the courts decide disputes as formulated
by the parties and on the facts presented by them. Judges
generally
have no investigative functions. If any of the factual averments
contained in the 'supplementary affidavit' are of importance
to the
disputing parties the latter can ensure that they find their way into
the arena in the usual fashion.
11.
The 'supplementary affidavit' must therefore be struck out. Although
the issue is a limited one and raises no new points, the
applicant
and Mr Vukela were both represented by
senior
counsel. Applicant employed two counsel Given the profile of this
matter, the personalities involved, the very considerable
amount of
taxpayers' money at stake and the fact that both counsel have been
involved in the matter from its inception this was
a prudent decision
and the applicant is entitled to the costs occasioned thereby.
The
following order is made:
The
'supplementary affidavit' is struck out with costs to be paid by Mr
Vukela, including the costs of two counsel.
Signed
at Pretoria on this 28th day of June 2012.
E
BERTELSMANN
Judge
of the High Court
Case
no: 52530/11
Date
of the hearing : 21 May 2012
Judgment
delivered on : 28 June 2012
Counsel
for the Applicant : Adv J J Gauntlet SC with Adv F B Pelser
Instructed
by : State Attorney, Pretoria
Counsel
for the Deponent : Adv M C Erasmus SC
Instructed
by : Langa Attorneys, Johannesburg