Reportable: YES/NO
Circulate to Judges: YES/NO
Circulate to Regional Magistrates:YES/NO
Circulate to Magistrates :YES/NO
Heard: 28 March 2024
Judgment delivered: 05 April 2024
IN THE HIGH COURT OF SOUTH AFRICA
(NORTHERN CAPE DIVISION, KIMBERLEY)
Case No: 1558/2022
In the matter between: -
CAMMPRO GENERAL TRADING (PTY) LTD
APPLICANT
(REGISTRATION NUMBER 2014/136290/07)
and
THE RICHTERSVELD MUNICIPALITY
FIRST RESPONDENT
LH UPINGTON KONSTRUKSIES
SECOND RESPONDENT
KGALAGADI TRADING AND INVESTMENT
THIRD RESPONDENT
LEBOGANG KATLEGO BUSINESS PROJECTS
FOURTH RESPONDENT
ELOHIM EREST RETAILERS
FIFTH RESPONDENT
ICEBERG TRADING
SIXTH RESPONDENT
JUDGMENT
StantonJ
INTRODUCTION: -
[1] This is an application by Cammpro General
Trading (Pty) Ltd (''Cammpro'') for leave to appeal to
the Full Court of the Northern Cape Division,
alternatively to the Supreme Court of Appeal, against
the whole judgment granted on 25 August 2023 in
terms of which I dismissed Cammpro's application to
compel with costs.
[2] The first respondent opposes the application for
the leave to appeal.
[3] In the application in respect of which this
application for leave to appeal is filed, Cammpro
sought to compel the first respondent to provide the
record pertaining to its decision to award the tender
under Bid No: WWWTVV/01/PN/NC061/ 11/2021
("the tender") to the second respondent in terms of
Uniform Rule 30A and 6(11) ("the application to
compel").
[4] In its second review application, issued on 03
August 2022, Cammpro requests that the award of
the tender to the second respondent be declared
unlawful and invalid; and be reviewed and set aside
("the 1558/2022 review application").
[5] It is common cause between the parties that the
tender, and the projects associated therewith, have
been completed.
[6] The factual background to this matter is
comprehensively set out in my judgment. None of the
parties have taken issue with my summary of the
background or my statement of the facts. It is
therefore not necessary to traverse these issues again.
[7] The essence of the reasons for my judgment in
the application to compel is: -
7.1 As a consequence of the completion of
the tender, this application is of mere
academic interest and, in the absence of a case
for incidental relief, it would have no practical
effect; and is accordingly moot; and
7.2 It is not in the interests of justice to hear
a moot matter as would not have some
practical effect either on the parties or on
others.
GROUNDS FOR APPEAL: -
[8] The grounds of appeal appear from the notice of
application for leave to appeal. In my view they may
be distilled as follows, namely that I had erred: -
8.1 In finding that the matter was moot, I
determined the review application; and
8.2 In failing to give effect to Uniform Rule 53 when
Cammpro met the jurisdictional requirements for an
application to compel.
APPLICABLE LAW: -
Leave to appeal: -
[9] The test of what needs to be established in order
to be granted the necessary leave to appeal is set out
in section 17(1) of the Superior Courts Act, the
relevant provisions of which read as follow: -
"17(1) Leave to appeal may only be given where the
judge or judges concerned are of the opinion that-
(a)(i) the appeal would have a reasonable
prospect of success; or
(ii) there is some other compelling reason why
the appeal should
be heard, including conflicting judgments on the
matter under consideration/'
[10] In S v Smith[1] Plasket AJA stressed: -
"[7] What the test of reasonable prospects of success
postulates is a dispassionate decision, based on the facts
and the law that a court of appeal could reasonably
arrive at a conclusion different to that of the trial court.
In order to succeed, therefore, the appellant must
convince this court on proper grounds that he has
prospects of success on appeal and that those prospects
are not remote but have a realistic chance of succeeding.
More is required to be established than that there is a
mere possibility of success, that the case is arguable on
appeal or that the case cannot be categorised as hopeless.
There must, in other words, be a sound, rational basis for
the conclusion that there are prospects of success on
appeal. "
[11] As reiterated by Leach JA in S v Kruger,[2]
the Courts should follow the aforementioned test
scrupulously in the interests of justice.
Uniform Rule 53: -
[12] Uniform Rule 53, in part, stipulates: -
"(1) Save where any law otherwise provides, all
proceedings to bring under review the decision or
proceedings of any inferior court and of any tribunal,
board or officer performing judicial, quasi- judicial or
administrative functions shall be by way of notice of
motion directed and delivered by the party seeking to
review such decision or proceedings to the magistrate,
presiding officer or chairperson of the court, tribunal or
board or to the officer, as the case may be, and to all
other parties affected-
(a) calling upon such persons to show cause why
such decision or proceedings should not be
reviewed and corrected or set aside, and
(b) calling upon the magistrate, presiding officer,
chairperson or officer, as the case may be, to
despatch, within 15 days after receipt of the
notice of motion, to the registrar the record of
such proceedings sought to be corrected or set
aside, together with such reasons as the
magistrate, presiding officer, chairperson or
officer, as the case may be is by law required or
desires to give or make, and to notify the
applicant that such magistrate, presiding officer,
chairperson or officer, as the case may be has
done so.
(2) The notice of motion shall set out the decision or
proceedings sought to be reviewed and shall be supported
by affidavit setting out the grounds and the facts and
circumstances upon which applicant relies to have the
decision or proceedings set aside or corrected.
(3) The registrar shall make available to the applicant
the record despatched as aforesaid upon such terms as
the registrar thinks appropriate to ensure its safety, and
the applicant shall thereupon cause copies of such
portions of the record as may be necessary for the
purposes of the review to be made and shall furnish the
registrar with two copies and each of the other parties
with one copy thereof, in each case certified by the
applicant as true copies. The costs of transcription, if
any, shall be borne by the applicant and shall be costs in
the cause.
(4) The applicant may within 10 days after the registrar
has made the record available to the applicant, by
delivery of a notice and accompanying affidavit, amend,
add to or vary the terms of the applicant's notice of
motion and supplement the supporting affidavit. "
[13] Mr P Mthombeni, on behalf of
Cammpro, submitted that: -
13.1 Section 33 of the Constitution of the
Republic of South Africa 1996 grants everyone
the right to administrative action that is
lawful, reasonable and procedurally fair; and
everyone whose rights have been adversely
affected by administrative action has the right
to be given written reasons for the purpose of
a review of such conduct;
13.2 Cammpro is accordingly entitled to the
record; which it requires to either amend the
relief it seeks, or supplement, its case on
review; and
13.3 The review application cannot proceed
without the record being provided to it.
[14] In Turnbull-Jackson v Hibiscus Coast
Municipality[3] the Constitutional Court held: -
"Undeniably, a rule 53 record is an invaluable tool in
the review process. It may help: shed light on what
happened and why; give the lie to unfounded ex post
facto (after the fact} justification of the decision
under review; in the substantiation of as yet not fully
substantiated grounds of review; in giving support to
the decision maker's stance; and in the performance
of the reviewing court's function. "
[15] The Constitutional Court in the matter of Helen
Suzman Foundation v Judicial Service Commission,
[4] confirmed: -
[image]
"[13] The purpose of rule 53 is to ''facilitate and
regulate applications for review' The requirement in
rule 53(1)(b) that the decision-maker file the record
of decision is primarily intended to operate in favour
of an applicant in review proceedings. It helps ensure
that review proceedings are not launched in the
dark.'1°1 The record enables the applicant and the
court fully and properly to assess the lawfulness of
the decision making process. It allows an applicant to
interrogate the decision and, if necessary, to amend
its notice of motion and supplement its grounds for
review.
[14] Our courts have recognised that rule 53 plays a
vital role in enabling a court to petform its
constitutionally entrenched review function:
"Without the record a court cannot petform its
constitutionally entrenched review function, with the
result that a litigant's right in terms of section 34 of
the Constitution to have a justiciable dispute decided
in a fair public hearing before a court with all the
issues being ventilated, would be infringed.
[15] The filing of the full record furthers an applicant's
right of access to court by ensuring both that the court
has the relevant information before it and that there is
equality of arms between the person challenging a
decision and the decision-maker. Equality of arms
requires that parties to the review proceedings must each
have a reasonable opportunity of presenting their case
under conditions that do not place them at a substantial
disadvantage vis-a-vis their opponents. This requires that
''all the parties have identical copies of the relevant
documents on which to draft their affidavits and that
they and the court have identical papers before them
when the matter comes to court' [footnotes omitted]
CONCLUSION:-
[16] Having considered the grounds set out in the
notice of application for leave to appeal and the
insightful judgments referred to above, I have to
conclude that Cammpro would have a reasonable
prospect of success on appeal. It follows that leave to
appeal should accordingly be granted.
[17] During argument, Mr P Mthombeni and Mr A
Botha, on behalf of the first respondent, conceded
that the matter should be heard a Full Court of this
Division. I agree.
[18] The final issue for
consideration is the issue
of the costs of this
application for leave to
appeal. In the
circumstances, the
appropriate order is that
such costs should be costs
in the appeal.
The following order is made: -
1) The applicant is granted leave to appeal to the
Full Court of this Division; and
2) The costs of the application for leave to appeal
shall be costs in the appeal.
STANTON J
On behalf of the applicant:
Adv. P Mthombeni
On instruction of Kenneth Juries & Associates
On behalf of the first respondent:
Adv. A Botha
On instruction of Robert Charles Attorneys and
Conveyancers
[1] 2012 (1) SACR 567 (SCA) paragraph 7.
[2] 2014 (1) SACR 647 (SCA) at 649d (paragraph 3).
[3] 2014 (6) SA 592 (CC); 2014 (11) BCLR 1310 (CC)
at paragraph [37].
[4] 2018 (4) SA 1 (CC); 2018 (7) BCLR 763 (CC) at
paragraphs [13] to [15].