Actaris South Africa (Pty) Ltd v Chairman of the Tender Committee and Others (3737/05) [2007] ZAFSHC 136 (29 November 2007)

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[2007] ZAFSHC 136
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Actaris South Africa (Pty) Ltd v Chairman of the Tender Committee and Others (3737/05) [2007] ZAFSHC 136 (29 November 2007)

IN THE HIGH COURT
OF SOUTH AFRICA
(ORANGE
FREE STATE PROVINCIAL DIVISION)
Case
No. : 3737/05
In
the application between:-
ACTARIS
SOUTH AFRICA (PTY)LTD
Applicant
and
CHAIRMAN
OF THE TENDER COMMITTEE OF
1
st
Respondent
THIRD RESPONDENT
TATS
ELECTRICAL SERVICES (PTY) LTD
2
nd
Respondent
MALUTI-A-PHOFUNG
LOCAL MUNICIPALITY
3
rd
Respondent
THE
MUNICIPAL MANAGER OF THE
4
th
Respondent
MALUTI-A-PHOFUNG
LOCAL MUNICIPALITY
______________________________________________________________
CORAM:
RAMPAI,
J
et
MILTON,
AJ
_____________________________________________________
JUDGMENT
BY:
RAMPAI,
J
_____________________________________________________
HEARD
ON:
14
MAY 2007
_____________________________________________________
DELIVERED
ON:
29
NOVEMBER 2007
_____________________________________________________
[1] The matter came by
way of motion proceedings for review in terms of section 53 of
certain administrative decisions and for certain
declaratory orders.
In addition the applicant sought an order of costs against the third
respondent. The application is opposed
by all the respondents.
The administrative
decision which the applicant wanted reviewed, pertained to the award
by the tender committee of the third respondent
chaired by the first
respondent. The tender was awarded to the second respondent. The
tender was about the provision of certain
electricity revenue
management services. This was the primary purpose of the
application.
[2] The applicant is an
electricity services provider. This company provides electricity
revenue management services. The second
respondent is also an
electricity services provider. Like the applicant, the second
respondent provides the same kind of services.
Their identical core
services entail the sale and distribution of electricity to consumers
on behalf of a local authority.
[3] The historical
background appears to be necessary. The third respondent called for
tenders in connection with the provision of
services pertaining to
electricity revenue management. During or about 15 April 2004 the
third respondent issued a “Request for
Proposal” through which it
invited tenders.
[4] The
third respondent’s local tender committee received tender proposals
from various interested parties. Among the tenderers
were the
applicant and the second respondent. On 10 November 2004 the local
tender committee awarded the tender to the second respondent.
A week
later, on 17 November 2004, the local tender committee advised the
applicant that the second respondent was the successful
tender
bidder. It followed, therefore, that the applicant was among the
unsuccessful tenderers. Still in the year 2004 the tender
contract
was signed by the second respondent and the third respondent on 21
December 2004 to be precise.
[5] On 1 May 2005 the
second respondent started delivering the services in terms of the
written contract entered into by and between
the second and the third
respondent subsequent to the awarding of the electricity tender.
[6] Instead
of initiating the necessary review proceedings while the sun still
shined, the applicant saw fit to bring an urgent application.
On 17
May 2005 the applicant launched an urgent application against the
second respondent and the third respondent to interdict
and to
restrain them from implementing the terms of the said tender contract
-
vide
case 2049/2005. This application was launched when the second
respondent had already started rendering the services to the
communities
in the third respondent’s jurisdiction.
[7] On
2 June 2005 the applicant delivered notice of a review application
under case number 2385/2005. The purpose of that review
application
was to have the tender award made in favour of the second respondent
nullified. At a later stage the applicant withdrew
the application.
[8] On
7 July 2005 the applicant’s urgent application referred to in par.
[6] above was dismissed. The second respondent continued
to render
the services in terms of the tender contract.
[9] On
29 August 2005 the applicant delivered a new notice of a review
application under case number 3734/2005. The purpose was still
to
have the tender award issued in favour of the second respondent
reviewed and nullified. The latest review application concerns
these
current proceedings. This then completes the series of litigious
attempts the applicant has made in an endeavour to upset
the decision
of the tender committee.
[10] The
current review application is opposed
en
bloc
by the respondents. The application is resisted not only on the
merits but also on technical grounds. The applicant was obviously
aggrieved by the decision of the local tender committee whereby it
awarded a municipal tender to its rival competitor, the second
respondent. It feels, and it appears to be a very strong feeling,
that the local tender committee should have awarded the tender
to it
and to it alone.
[11] The applicant’s
case was well articulated by Mr. Wessels, counsel for the applicant,
during argument before us. Counsel vigorously
argued that measured
by the requirements and standards which had been compiled and
provided to the tender bidders by the local authority,
in other words
the third respondent, the applicant’s compliant and competitive
tender must have been accepted by the local tender
committee, but was
wrongly rejected in favour of the second respondent’s less
compliant and less competitive tender because, as
the applicant
contended, the tender committee had lowered and relaxed requirements
and standards which could and should not have
been applied by the
local tender committee and that, as a consequence of such double
standards applied, the acceptance of the second
respondent’s
undeserving tender bid and the conclusion of the consequent tender
agreement between the second respondent and the
third respondent for
the provision of such electrical services fell to be reviewed and
nullified.
[12] The contention of
the applicant that it had complied with all the requirements of the
third respondent’s request for proposal
and based on the subjective
presumption that it was the lowest qualified tenderer, who should
have therefore been named the preferred
bidder and accordingly
awarded the tender was vigorously challenged by Mr. Jordaan and Mr.
Ploos van Amstel together with their juniors,
Ms Eloff and Mr.
Langenhoven, respectively. So much on the merits for now. I shall
revert to the merits, if needs be, in due course.
[13] I
now turn to the preliminary issues. The respondents have filed
answering affidavits wherein, apart from the substantive merits,
they
have also raised, as a point
in
limine
,
a technical objection to the applicant’s review application. The
essence of the objection is that the review application was
belatedly
launched. The respondents contended that the review application was
not launched within a reasonable period of time after
the tender was
awarded to the second respondent. For that reason alone they urged
us not to even consider the substantive merits
of the matter, but
rather to stop the train here and now and order the applicant to get
off. We are thus called upon to determine
whether or not Actaris,
the applicant, has a valid ticket to remain on the train. If it has,
it can remain on board the train until
it reaches its chosen final
destination, the merits. If it does not, then it cannot get there.
[14] We
are now proceeding to examine the facts. I have already outlined the
undisputed factual matrix of the matter. Before I embark
upon the
analysis of the facts, a cursory overview of the law is necessary.
[15]
Section 7(1)
of the
Promotion of Administrative Justice Act, No. 3 of 2000
, provides:
“
7 Procedure
for judicial review
(1) Any proceedings for judicial
review in terms of
section 6
(1) must be instituted without
unreasonable delay and not later than 180 days after the date-
(a) subject to subsection (2) (c), on
which any proceedings instituted in terms of internal remedies as
contemplated in subsection
(2) (a) have been concluded; or
(b) where
no such remedies exist, on which the person concerned was informed of
the administrative action, became aware of the action
and the reasons
for it or might reasonably have been expected to have become aware of
the action and the reasons.
Therefore it is a
specific statutory time-frame within which an application for the
review of an administrative act has to be brought.
[16] The
aforegoing statutory enactment curtails the common law rule which
requires that the review proceedings of an administrative
act be
instituted within a reasonable time. De Ville –
Judicial
Review of Administrative Action in South Africa
.
Section
7(1)
stipulates what a reasonable time is for the initiation of
review proceedings.
The procedure pertaining
to review proceedings in the High Court is governed by
Rule 53
Uniform High Court Rules:
[17]
Section
9
of the
Promotion of Administrative Justice Act provides
that the
restrictive time barrier of 180 days as set out in
section 7(1)
supra
may be extended where the interest of justice so require.
[18]
Section 9
extenuates
the hardship which is inherent in the strict enforcement of
section
7(1).
It injects a measure of flexibility to relax the rigidity of
the primary limiting statutory enactment. It authorises the courts
to condone the late review proceedings on good cause shown why such
proceedings were not filed within 180 days in terms of
section 7(1).
The practical efficacy of
section 9
is that in appropriate cases
those who, for good reasons, fail to comply with
section 7(1)
are not
virtually remediless. The avenues of justice are not simply closed
in their face on account of their mere lateness, however,
marginal
and reasonable the delay may be. However, an extension in terms of
section 9
is not simply there for the taking. It is not given on
mere demand. It must be earned on good grounds. A reasonable and
adequate
explanation must be given to ventilate the underlying cause
of the delay the court is urged to condone.
[19] In determining the
reasonableness of the one party’s delay in initiating and
prosecuting review proceedings, which delay the
court is asked to
condone, prejudice to the other party is a vital component of the
equation.
WOLGROEIERS
AFSLAERS (EDMS) BPK v MUNISIPALITEIT VAN KAAPSTAD
1978 (1) SA 13
(AD);
LAERSKOOL
MIDDELBURG EN 'N ANDER v DEPARTEMENTSHOOF, MPUMALANGA DEPARTEMENT VAN
ONDERWYS, EN ANDERE
2003 (4) SA 160
(T) at 178 d – e.
[20] In
determining the reasonableness of the delay the extent of the delay
is another crucial factor of the inquiry by the court.
If the extent
of the delay has been substantial, it is incumbent upon the applicant
to lay before the court facts which will justify
the court to find
that, notwithstanding the delay, it would nonetheless be just and
proper that the review proceedings be heard.
See the decision of
ZWANE
v MAGISTRATE, MAPHUMULO, AND ANOTHER
1980 (3) SA 976
(N).
[21] Where
review proceedings have been timeously initiated or where the review
proceedings have belatedly been instituted, but not
disturbingly
late, the applicant still has to proceed seriously and prosecute his
review case with reasonable swiftness within reasonable
time.
Unreasonable delay in prosecuting a review case, timeously
instituted, is just as prejudicial to the respondent as in the
case
of review proceedings instituted unreasonably late. See
MKHWANAZI
v MINISTER OF AGRICULTURE AND FORESTRY, KWAZULU
1990 (4) SA 763
(D).
[22] In two recent
decisions, it was authoritatively held that the provisions of the
Promotion of Administrative Justice Act were
unassailable and that
parties could not choose whether the principles embodied in that
statute were to be applied or not.
TRANSNET
LTD AND OTHERS v CHIRWA
2007 (2) SA 198
(SCA) on 207;
MINISTER
OF HEALTH AND ANOTHER NO v NEW CLICKS SOUTH AFRICA (PTY) LTD AND
OTHERS (TREATMENT ACTION CAMPAIGN AND ANOTHER AS AMICI CURIAE)
2006 (2) SA 311
(CC).
The
decision is also reported in
2006 (1) BCLR 1
(CC).
[23] In determining
whether to condone the delay to have an administrative action
reviewed, the court will consider the efficacy of
the court order it
is urged to give. Where a review application is brought at a time
when the court order will have little or virtually
no practical,
meaningful and effective impact, the court will be inclined to refuse
a remedy.
MAMABOLO
v RUSTENBURG REGIONAL LOCAL COUNCIL
[2000] ZASCA 133
;
2001 (1) SA 135
(SCA);
LEBOWA
MINERAL TRUST v LEBOWA GRANITE (PTY) LTD
2002 (3) SA 30
(T).
[24] The
decision in the case of
SETSOKOSANE
BUSDIENS (EDMS) BPK v VOORSITTER, NASIONALE VERVOER-KOMMISSIE, EN 'N
ANDER
1986 (2) SA 57
(AD) is probably the
locus
classicus
as regards the approach which a court has to adopt in the process of
determining whether a delay in bringing a review application,
is
fatal or not. The factors which should be taken into account in
considering whether to condone or not to condone an inordinate
delay
were set out and examined. However, it must be readily appreciated
that the decision concerned a common law review application
where no
statutory limit was applicable. In
TRANSNET
LTD AND OTHERS v CHIRWA
supra
at par. 11 Mthiyane JA said the following about the
fons
et origo
of
the law of judicial review:
“
[11] Even though
all administrative actions are subject to review under PAJA (subject
to the exclusions in PAJA itself), Brassey AJ
did not submit the
decision to dismiss to scrutiny under PAJA. He determined that it was
sufficient to apply the common law as laid
down in Zenzile as already
indicated above. In my view, he erred. The 'cause of action for the
judicial review of administrative
action now ordinarily arises from
PAJA, not from the common law as in the past' (Minister of Health and
Another NO v New Clicks South
Africa (Pty) Ltd and Others (Treatment
Action Campaign and Another as Amici Curiae) 11). In New Clicks
Chaskalson CJ said:
'[95] PAJA is the
national legislation that was passed to give effect to the rights
contained in
s 33.
It was clearly intended to be, and in substance
is, a codification of these rights. It was required to cover the
field and purports
to do so.
[96] A litigant
cannot avoid the provisions of PAJA by going behind it, and seeking
to rely on s 33(1) of the Constitution or the
common law. That would
defeat the purpose of the Constitution in requiring the rights
contained in s 33 to be given effect to by
means of national
legislation.'
(See also Zondi v MEC for Traditional
and Local Government Affairs and Others. 12)”
[25] I
now proceed to examine the facts in the instant case. The tender was
awarded to the second respondent on 10 November 2004.
It is this
administrative action taken by the first respondent and his tender
committee which precipitated the current review application.
The
applicant filed its review application on 29 August 2005. In terms
of section 7(1) Act No. 3 of 2000, the applicant was entitled
to
bring its application for the review of the tender award within 180
days. The first respondent advised the applicant about the
decision
of his tender committee on 17 November 2004 that is to say within one
week or seven days, if you will. The letter annexed
and marked fa24
has no address. It was possibly either delivered
per
traditio manu
or
per
traditio
fax to the applicant. Whatever the delivery method, the applicant
received the letter of 17 November 2004 –
vide
par. 59 founding affidavit. I shall generously assume that the
applicant received it seven days later on 24 November 2004. On that
day the applicant’s cause of action arose.
The applicant’s statutory unfettered right to bring the review
application against the respondents, was extinguished by the
effluxion
of time on 25 May 2005. At the latest the review
application was supposed to have been filed on that date. It was
never done.
Section 7(1) is binding and litigants ignore it at their
own peril -
TRANSNET
LTD AND OTHERS v CHIRWA
,
supra
.
The parties have no choice but have to adhere to this statutory
provision -
MINISTER
OF HEALTH AND ANOTHER NO v NEW CLICKS SOUTH AFRICA (PTY) LTD AND
OTHERS
,
supra
.
[26] The
applicant’s review application is clearly late. It was filed
approximately ten months after the cause of action had arisen.

Therefore it was three months one week and four days out of the
statutory time. The applicant’s reasons for the delay have to
be
scrutinised to determine whether such delay may be condoned on common
law grounds. I hasten to say that the applicant cannot
invoke the
rescue provisions of section 9 Act No. 3 of 2000. The wording of the
section suggest that the 180 day period as contemplated
in section
7(1) may be extended provided a court is approached before the expiry
of such period for the required extension. It seems
the court cannot
ex
post facto
be approached to grant an extension when nothing exists to extend.
It seems logical to me. It fortifies the contention of the
respondents
that section 7(1) must be strictly adhered to and only
relaxed in the most deserving of cases. Is this current application
before
us one of those rare but appropriate cases?
[27] The applicant’s
deponent, Mr. Adams, avers in the first place that the launch of the
applicant’s review application was retarded
by the obstacles the
applicant encountered in its endeavours to obtain certain
documentation from the third respondent. The vagueness
of the
averment concerning this reason for the delay is perturbing. For
instance, not a single date is specifically mentioned as
to precisely
when the applicant requested the third respondent to provide the
documents it so desperately required. Similarly no
date is specified
as to on which date such documents were actually received by the
applicant from the third respondent. No diligent
efforts are spelt
out of what the applicant practically did between its initial request
for documents and its eventual receipt of
the documents. If such
efforts were expressly set out and sufficiently motivated they would
have gone a long way towards facilitating
an objective assessment and
appreciation of the applicant’s very first and presumably the most
important reason for the delay.
There is therefore a huge vacuum in
the first reason for the delay. I find the first reason
unacceptable.
[28] It has to be
mentioned that as far back as 2 June 2005 when the applicant
initiated similar but abortive review application under
case number
2385/2005 the applicant was already aware of the problem pertaining
to the documents. Its deponent states that at the
time the third
respondent made available a large volume of documentation consisting
of two full boxes:
“
I did not have full and sufficient
knowledge of the relevant documentation but already had grounds for
forming a strong suspicion
that something was wrong.”
[29] The
difficulty I have is this: If the applicant had no knowledge of
precisely what specific documents it required and what the
relevance
of such unknown documents would be, how could it be argued that such
unknown documents of uncertain relevance had slowed
down the process
of instituting the review application on time? I fail to understand,
because it appears that when the applicant’s
deponent perused the
voluminous documentation, seemingly nothing significantly new came to
light – the documents merely confirmed
the strong suspicion the
applicant had all along. The point is, on the applicant’s own
version, the review application could have
been initiated in good
time with or without the alleged documents. I am still in the dark
as to which specific documents in the
two full boxes of documents
materially energised the applicant to bring this review application
on 29 August 2005 and not much earlier
in accordance with section
7(1).
[30] The applicant’s
claim that the belated documents enabled it to correctly identify the
parties to sue is incredibly amazing.
I cannot believe that the
applicant’s who, it must be borne in mind, was still rendering the
same electrical services to the same
municipality and was familiar
with the intricacies of the tender process and the then members of
the tender committee was having
business negotiations with the second
respondent immediately before the deadline for the submission of
tenders in order to form a
joint venture and who certainly must have
known the municipal manager very well had to wait for almost ten long
months for the documents
in order to identify who had to be sued as
the respondents. This excuse holds no water.
[31] The applicant’s
second reason for the delay was that it was under the reasonable
impression that no valid tender contract had
been concluded between
the second respondent and the third respondent pursuant to the award
of the tender to the second respondent.
If there was such a
tentative sort of a contract as might have been entered into, it was
in the process of being cancelled as a
result of the second
respondent’s failure to perform. The only ground on which the
applicant’s impression was based was the
fact that the third
respondent had extended the previous tender contract it had with the
applicant. I can see nothing reasonable
about the alleged reasonable
impression. The applicant’s rival competitor had won the new
tender award, the applicant had been
notified accordingly and the
applicant’s tender contract had already expired.
[32] There
is nothing in the applicant’s averment to suggest that its contract
was extended until May 2005 because the third respondent
was
contemplating to revoke the tender award granted to the second
respondent. It seems to me that the applicant read too much into
the
extension which was granted to it. The applicant was naturally
disappointed to lose the contract but took no immediate practical
steps to seek the review of the decision of the tender committee.
The applicant held back for more than 180 days in the hope that
the
second respondent would fail to render the services and that it might
be asked to come to the third respondent’s rescue if
such failure
eventualised. It never did. In these circumstances there is hardly
a mere suggestion of any legitimate expectation
created by anyone.
Such an unreasonable impression can never serve as a justifiable
reason for the delay. The applicant was the
sole architect of its
own unrealistic hope. The second reason fails to impress.
[33] The third and final
reason for the applicant’s delay was that the third respondent had
passed a resolution to have the awarding
of the tender to the second
respondent set aside. The resolution, so avers the applicant,
created another impression which negated
the necessity of the
applicant initiating review proceedings at all. Once again the
allegation is not beefed up by any critical
averments. No meaningful
particulars of the alleged resolution are set out and no copy is
annexed. Even if such resolution was
indeed taken, one thing about
it appears reasonably certain - it was probably not taken before 31
may 2005. The critical cut of
deadline of 180 days was 24 May 2005.
It seems to me therefore that the municipal resolution so heavily
relied upon, could not honestly
have been a genuine reason for the
applicant’s neglect to bring the review application timeously. The
third reason is also unsatisfactory
and therefore unacceptable to me.
[34] In the light of the
aforegoing the applicant has dismally failed to give any reasonable
and adequate explanation for its delay
which any objective assessor
of the facts may find satisfactory.
[35] The
next factor which I have to take into account is the degree of the
delay. In determining the degree of the lateness one is
tempted to
focus on the period after the statutory deadline of 180 days which
lapsed on 25 May 2005 and to ignore the period prior
to such
deadline. This is wrong. One must not distort the true picture.
Since 25 May 2005 until 29 August 2005 the delay was 95
days. To get
a true picture of the extent of the delay the proper approach demands
that the entire period must be investigated.
The period on both
sides of the statutory deadline has to be brought into reckoning.
When that is done in the instant case the
total delay is 275 days.
This, in my view, is disturbingly excessive because no valid reasons
whatsoever were advanced as to how
the initial 180 days were utilised
to prevent the extinctive erosion of time. In law, as in the
business world and indeed as in
many other spheres of our daily lives
tempus
fugit
.
Where the delay is substantial, as in the instant case, all courts
are inclined to refuse to grant a remedy.
In
casu
the delay has been so perturbingly substantial that I would not
condone it unless there are other compelling factors to compensate
for it.
[36] In determining
whether to rescue an applicant whose review application was brought
outside the prescribed time-frame, the court
must also take into
account the applicant’s prospects of success on the merits if the
late institution of the review application
is condoned. It was
contended on behalf of the respondents by Mr. Jordaan that some of
the essential requirements which informed
the awarding of the tender
to the second respondent by the first respondent and the tender
committee, were the transformative considerations
of black economic
empowerment and the third respondent’s policies of preferring and
promoting its local business enterprises.
According to the fourth
respondent the applicant did not meet the requirements of the third
respondent. I may also add that those
whom public service contracts
are awarded by way of public tendering system, should not seek to
monopolise the system by their ever
increasing demands that they be
perpetually retained as the sole providers of public services.
[37] In the final
analyses the fact that the applicant’s tender proposal was the
lowest, was not the only decisive factor. There
were other equal
important considerations. I have already mentioned some of them. As
I see it, it cannot be said that on the merits
the applicant has
strong prospect of success. This whole outcry about the requirements
and standards which the first respondent’s
tender committee is
accused of having lowered with intent to subvert the applicant is, in
my view, a storm in a tea-cup. In the
light of this it seems to me
that on the merits the applicant prospects of success are no good.
[38] I turn now to
another factor we have to take into account in determining whether we
should exercise our judicial discretion in
favour of the applicant
notwithstanding the fact that its case is riddled with numerous
unsatisfactory features. The factor I am
here referring to concerns
the efficacy of the court order which the applicant prays we grant.
Now even if the applicant had made
out a convincing case which
justified condoning its failure to comply with section 7(1) I would
still not see my way through to nullify
the award of the tender to
the second respondent. This is so because nullifying it would be a
fruitless exercise with no real practical
effects. The second
respondent signed a three year tender contract with the third
respondent on 21 December 2004 subsequent to the
awarding of the
tender. The contract period is almost over.
[39]
In
casu
we cannot ignore the fact that the second respondent has already
provided the electrical services for longer than 24 months of the
total 36 months contract period which commenced on 21 December 2004
to the apparent satisfaction of the third respondent. The second
respondent has incurred enormous expenses to install, to implement
and to keep the system operational. The likelihood of disruption
not
only to the respondents but also to the communities which the second
respondent is currently servicing on behalf of the third
respondent
looms large on the horizon should we set the administrative action
complained of aside.
WOLGROEIERS
AFSLAERS (EDMS) BPK v MUNISIPALITEIT VAN KAAPSTAD
,
supra
and more recently
LAERSKOOL
MIDDELBURG EN 'N ANDER v DEPARTEMENTSHOOF, MPUMALANGA DEPARTEMENT VAN
ONDERWYS, EN ANDERE
,
supra
.
The
potential prejudice to the respondents and the community at large
weighs heavily against the nullification of the awarding of
the
tender sought by the applicant. Not only will the third respondent
suffer vast damages but the communities would be seriously
prejudiced
by the sudden disruption of essential services such as the provision
of electricity. The relatively short unexpired period
of the tender
contract favours the running and not the nullifying of the contract.
[40] Yet
another important factor to consider in determining whether to
condone or not to condone the delay is the importance of the
case.
The case entails the provision of electricity. The rendering of such
essential services to the communities is a function
of vital
importance to the third respondent and to the fourth respondent –
vide
MELANE
v SANTAM INSURANCE CO LTD
1962 (4) SA 531
(AD) at 532 C – D.
[41] The applicant
initiated these review proceedings late. But that was not all.
Since 29 August 2005 the applicant took its own
time yet again. It
hopelessly failed to proceed with swiftness and vigour to prosecute
the matter to its logical conclusion. The
review application was
enrolled over nine months later. It was argued before us on 14 May
2007 a mere seven months before the contract
comes to its end in
accordance with the mutual agreement between the second respondent
and the third respondent.
[42] Where
an applicant in review proceedings has failed to demonstrate his
seriousness about the remedy he seeks by acting swiftly
and
decisively to attain the desired relief the court will not come to
his rescue even in the case where, unlike here, the review
application was initiated in good time in terms of section 7(1) -
MKHWANAZI
v MINISTER OF AGRICULTURE AND FORESTRY, KWAZULU
,
supra
.
[43] In
determining whether or not to condone an applicant’s delayed case
our courts closely scrutinise such applicant’s conduct.
The
primary source of the whole thing is a substantive formal condonation
application supported by a proper sworn statement. Needless
to say
there was no such condonation application in the instant case for us
to consider. The respondents, and we as judges, had
to search in the
founding affidavit of the applicant made in support of the main
review application and not condonation application
for some possible
reasons which brought about the applicant’s inordinate delay. We
could find none even there in an unfamiliar
territory where we all
trespassed for the sake of the applicant. Of all the defective
features of the current review proceedings,
this was the most fatal,
in my view.
[44] When
all is said and done what emerges is this – the delay has been so
substantial and the explanation thereof so exceedingly
inadequate
that there are virtually no compelling facts which can justify the
court coming to the conclusion that, notwithstanding
such excessive
delay, it would nonetheless still be just and proper to let the
review proceedings be heard -
ZWANE
v MAGISTRATE, MAPHUMULO, AND ANOTHER
,
supra
.
Having considered all the
relevant factors governing the review application, I could find
nothing to compensate anything.
[45] In deciding whether
the interests of justice require the considerable delay to be
condoned it is apposite to remind ourselves
of what Holmes JA once
said:
“
In deciding
whether sufficient cause has been shown, the basic principle is that
the Court has a discretion, to be exercised judicially
upon a
consideration of all the facts, and in essence it is a matter of
fairness to both sides. Among the facts usually relevant
are the
degree of lateness, the explanation therefor, the prospects of
success, and the importance of the case. Ordinarily these
facts are
interrelated: they are not individually decisive, for that would be a
piecemeal approach incompatible with a true discretion,
save of
course that if there are no prospects of success there would be no
point in granting condonation. Any attempt to formulate
a rule of
thumb would only serve to harden the arteries of what should be a
flexible discretion. What is needed is an objective conspectus
of all
the facts. Thus a slight delay and a good explanation may help to
compensate for prospects of success which are not strong.
Or the
importance of the issue and strong prospects of success may tend to
compensate for a long delay. And the respondent's interest
in
finality must not be overlooked.”
Vide
MELANE
v SANTAM INSURANCE CO LTD
1962 (4) SA 531
(AD) at 532 B – E.
In
casu
to condone the applicant’s delay would be incompatible with the
exercise of a true judicial discretion – something the law forbids.
[46] In
the circumstances I am persuaded by the collective argument of the
respondents. There are merits in the preliminary objection
raised on
behalf of the respondents and articulated by Mr. Jordaan and Mr.
Ploos van Amstel. In the circumstances I have come to
the conclusion
that the point
in
limine
was well taken. The objection is one which on review I am inclined
to uphold. The train stops right here and now. It cannot proceed
any further.
[47] In the result the
following order:
47.1 The
point
in
limine
is upheld.
47.2 The costs incurred
by all the respondents which costs were occasioned by the successful
opposition to the review application
shall be borne and paid by the
applicant.
47.3 The
payment of such costs by the applicant includes the costs occasioned
by the employment of two counsels who appeared on behalf
of the
first, third and fourth respondents.
47.4 The
payment of such costs by the applicant further includes the costs
occasioned by the employment of two counsels who appeared
on behalf
of the second respondent.
______________
M.H. RAMPAI, J
I
concur.
_____________
D. MILTON, AJ
On
behalf of the applicant: Adv. M.W. Wessels SC
Instructed
by:
Rosendorff
Reitz Barry
BLOEMFONTEIN
On
behalf of the first, third, fourth
respondents: Adv.
A.F. Jordaan SC
with
him:
Adv.
Z. Eloff
Instructed
by:
Symington
& De Kok
BLOEMFONTEIN
On
behalf of the second
respondent: Adv.
C. Ploos van Amstel SC
with
him: Adv. G.T. Langenhoven
Instructed by:
Lovius
Block Attorneys
BLOEMFONTEIN
/sp