About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Western Cape High Court, Cape Town
SAFLII
>>
Databases
>>
South Africa: Western Cape High Court, Cape Town
>>
2008
>>
[2008] ZAWCHC 85
|
|
Comwezi Security Services (Pty) Limited v ABSA Bank Limited and Others (8817/2008) [2008] ZAWCHC 85 (20 November 2008)
J
IN
THE HIGH COURT OF SOUTH AFRICA
(CAPE OF GOOD HOPE PROVINCIAL
DIVISION)
CASE NO
:
8817/2008
DATE
:
20
NOVEMBER 2008
In
the matter between:
COMWEZI
SECURITY SERVICES
(PTY)
LIMITED
APPLICANT
versus
ABSA
BANK LIMITED AND TWO OTHERS
RESPONDENTS
JUDGMENT
NGEWU
A J
:
[1]
The applicant in this application was an unsuccessful applicant in
the main application. He now seeks leave to appeal against
the
judgment and order given on 13 June 2008.
[2]
The primary question to be considered in this type of application is
whether there is a reasonable prospect of success on appeal.
[3]
The applicant in the main application sought a final interdict on an
urgent basis against the 3 respondents in the following
terms:-
3.1. That
any agreements which may have been purported to have been concluded
between first, second and third respondents in respect
of
provisioning of security guarding services by second and/or third
respondents to first respondent from 1 July 2008 to the exclusion
of
applicants be declared to be of no force and effect.
3.2. That
the second and third respondents be interdicted and restrained from
performing in terms of any agreement which may have
been purported to
have been concluded between first and second respondents and/or
between first and third respondents in respect
of the provisioning of
security guarding services by second and/or third respondents from 1
July 2008 to the exclusion of the applicant.
3.3. That
first respondent be interdicted and restrained from concluding any
agreement between first and second respondent and/or
between first
and thirdrespondent in respect of provisioning security
guarding services by second and third respondents
for first
respondent from 1 July 2008 to the exclusion of applicant,
3.4. That
such respondents as oppose the application pay costs of the
application jointly and severally, the one paying the other
to be
absolved.
3.5. Granting
further and/or alternative relief.
[4]
On 10 June 2008, a day before the date scheduled for hearing of the
main application, applicant filed an application to amend
its notice
of motion couched in the following terms:
4.1. by
replacement of the description of second and third respondents of the
heading thereof with the description of them which
appeared in the
heading of the notice of intention to amend;
4.2. by
addition of the following as a new paragraph 7 thereof:-
"In
the alternative to paragraph 2 to 5 above, that an order be granted
in terms of the draft annexed hereto marked A."
[5]
The terms of the draft order relevant for purposes of this judgment
provided that oral evidence is to be led in respect of
the following
issues:-
5.1. Whether
the agreement contended by applicants to have been concluded at the
meeting of 30 November 2007 ("the meeting")
in respect of
award of future guarding contracts was in fact concluded,
Whether
the person present at the meeting on behalf of the first and second
respondents lacked authority to conclude agreement
alleged by
applicant, and if so, whether first and second respondents
nonetheless remained bound by operation of an estoppel
or
ostensible authority of the internal or indoor management rule;
Whether
official guarding contracts were put to tender in accordance with
the minutes;
Pending
the determination of this application no new guarding contracts had
to be concluded between the parties and the
status
quo
in
respect of first respondent's guarding requirements is to be
preserved.
5.5
Costs to stand over.
[6]
The Court did not grant the proposed amendment as it did not comply
with the provisions of rule 28, sub-section 2 of the uniform
Rules
of court. Furthermore, the proposed amendment sought to introduce a
totally fresh cause of action, and abandon the original
one as per
interdict sought. In addition, the issues the applicant sought
referred for oral evidence were properly ventilated
during argument
and would not in any way advance or bolster the applicant's case. It
would not have been proper for the Court
to grant an order in terms
of the amendment that was not granted.
It
was not in dispute that there was a closed tender process followed
by Absa in which Comwezi, the applicant, participated.
It
is worth to mention that the proposed amendment was sought as an
alternative to the order sought in the main application.
[7]
During argument, counsel for the applicant conceded that it would
not be successful in obtaining the final relief sought and
argued
for referral to oral evidence as per proposed amendment, which was,
in essence, an interim
relief
pendente
lite.
The
applicant failed to meet the requirements of both the final and
interim orders sought, hence the Court dismissed the application.
[8]
The main ground of appeal was non-referral of the matter for oral
evidence as proposed in the notice of intention to amend,
which, as
already indicated above, the Court did not grant. It became common
cause during argument that the agreements the applicant
referred to,
allegedly reached on 30 November 2007, were never concluded. The
status
quo
that
the applicant sought maintained was not existent. In my judgment,
the application for leave to appeal should accordingly
fail as there
are no prospects of success on appeal.
In
the result, the application for leave to appeal is
DISMISSED
WITH COSTS.
NGEWU,
AJ