About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2024
>>
[2024] ZAFSHC 181
|
|
Khuselani Security and Risk Management (Pty) Ltd v Mangaung Metropolitan Municipality (5560/2022) [2024] ZAFSHC 181 (3 June 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable: YES/NO
Of Interest to other
Judges: YES/NO
Circulate to
Magistrates: YES/NO
Case
no: 5560/2022
In
the matter between:
KHUSELANI
SECURITY
AND
RISK
MANAGEMENT
(PTY)
LTD
Applicant
and
MANGAUNG
METROPOLITAN
MUNICIPALITY
Respondent
CORAM:
VAN ZYL,
J
HEARD
ON:
23
FEBRUARY
2024
DELIVERED
ON:
31 MAY
2024; 3 JUNE 2024
[1]
On
31 May 2024 I made the following order:
"1.
Leave to appeal against the whole of the judgment and order of Berry,
AJ, dated 16 November 2023, is granted to the Full
Court of this
Division.
2.
The
costs
of
the
application
for
leave
to
appeal
are
costs
in
the
appeal."
[2]
I
undertook that the reasons for the order will be made available on 3
June 2024. What follows are those reasons:
[3]
This
is an application for leave to appeal against the whole of the
judgment and order of Berry, AJ (as he then was), delivered
on 15
November 2023.
[4]
This
application was allocated to me on the basis of the provisions of.
Section
17(2)(a) of the Superior Courts Act, 10 of 2013 ("the Act"),
in terms whereof an application for leave to appeal
may be heard by
any other judge of the Division when the judge against whose decision
the appeal is sought to be made is not readily
available.
Berry's
acting
stint had been concluded at the time of the hearing of this
application.
[5]
The
applicant in this application for leave to appeal was also the
applicant in the application in the court
a
quo
and
the current respondent was
mutatis
mutandis
the
respondent in the application in the court a
quo.
[6]
Section
17(1)(a) of the Act determines as follows:
"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;
(b)
…
[7]
It
is by now settled law that the word "would" in Section
17(1)(a)(i) has raised the bar for granting leave to appeal.
See
Acting
National
Director
of
Public
Prosecutions
v
Democratic
Alliance
In
Re
Democratic
Alliance
v
Acting
National
Director
of
Public Prosecutions
(19577/09)
[2016] ZAGPPHZ
489
(24
June
2016) at para [25]. In the judgment of
The
Mont Chevaux
Trust
(IT 2012/28) v Tina Goosen and 18 Others
2014
JDR 2325 (LCC), the court held as follows at para [6]:
"It
is clear that the threshold for granting leave to appeal against a
judgment of a High Court has been raised in the new
Act. The former
test whether leave to appeal should be granted was a reasonable
prospect that another court might come to a different
conclusion, see
Van Heerden v Cronwright
&
Others
1985 (2) SA 342
(T) at 343H. The use of the word 'would' in the
new statute indicates a measure of certainty that another court will
differ from
the court whose judgment is sought to be appealed
against."
Background:
[8]
During or about February 2019 the applicant and the respondent
concluded a security service level agreement in terms whereof
the
applicant was to deliver security services to the respondent.
[9]
It is common cause between the parties that the following were,
inter
alia,
material express, alternatively tacit, alternatively
implied terms of the agreement:
"10.3
The
provision of security services was to endure for a period of 24
months commencing on
.
1
March 2019 and ending on 28 February 2021;
10.4
The
Applicant undertook to submit invoices on a monthly basis in
accordance with the agreement;
10.5
The
Respondent undertook to effect payment to the Applicant promptly but
no later than thirty (30) days after submission of an invoice."
[10]
After the applicant made certain adjustments to the amounts of its
claims in the replying affidavit, the applicant is seeking
judgment
as follows:
1.
Payment
of
the
unpaid
capital
debt
in
the
sum
of
R2 053 162.31, together with interest thereon up to 31 October 2022
in the amount of R444 551.47
.
2.
Alternatively,
and should it be found by the court that invoice numbers 145178
(annexure
"PR2"
to
the founding affidavit) and 145179
(the
balance
of
annexure
"PR3" to the founding
affidavit)
have become prescribed, then payment of the capital debt in the
amount of R1 933 449.17, together with interest
thereon
as
at 31 October 2022 in the amount
of
R439 060.79.
3.
Mora
interest
on
the aforesaid
amounts
set
out
in
(1) or (2) from 1 November
2022
to date of payment.
4.
That
the
respondent
be
directed
to
pay
the
costs
of
the
application on an attorney and client scale.
[11]
The
respondent raised three points
in
limine,
being:
1.
Prescription;
2.
Arbitration;
3.
Non-compliance
with
the
Institution of Legal Proceedings Against Certain Organs of State
Act, 40 of 2002
.
[12]
On
the merits as such the respondent raised the defence that there are
material disputes of facts which cannot be resolved on the
papers and
which the applicant ought to have anticipated before instituting the
application.
Findings
by the court
a
quo:
[13]
The
court a
quo
found
that in view of the findings it was about to make, it was unnecessary
to deal with the applicability of Act 40 of 2002
.
[14]
Although
the court a
quo
referred
to the respondent's reliance on the arbitration clause as well as its
alleged entitlement to deduct penalties in terms
of paragraph 9.4 of
the agreement, the court did not deal with it any further.
[15]
The
court furthermore found as follows:
"[32]
A
real
bona
fide
and
genuine dispute of facts arose.
The
Respondent disputes the amount claimed; whether prescription of the
two invoices occurred; and whether penalties may be levied
in terms
of the contract exist.
[33]
This
brings
this
Application
into
the
realm
of
Plascon-Evans
Paints
v Van Riebeeck Paints.
[34]
It must be decided on the Respondent's version, together with those
facts that are undisputed and common cause where the factual
disputes
exist.
[35]
The Respondent's version should be rejected if it is untenable and
far-fetched.
[36]
I find that there is a genuine dispute of facts, and that Plascon
Evans is applicable under the circumstances of this
case.
[37]
...
The
Application is dismissed with costs."
Notice
of leave to appeal:
[16]
The
grounds
stated
for
the
application
for
leave
to
appeal
are
in
essence the following:
1.
The
court a
quo
erred
in concluding there existed a genuine dispute of facts between the
parties and that accordingly application proceedings were
inappropriate.
2.
The
respondent
did
not identify
what
facts were in dispute
that
it could genuinely rely upon to make the claim that
-there
was a genuine dispute of facts
.
The
court a
quo
itself
did not identify what dispute of facts were revealed in
the
papers that prompted it to make such finding and thereafter to have
dismissed the applicant's application.
3.
There
is no engagement in the judgment of the court a
quo
to
why the alleged dispute of facts could not be resolved on the papers.
4.
The
tenure of the judgment of the court a
quo
suggests
that it accepted that the applicant genuinely believed that there was
no
bona
fide
dispute
of facts at the time of launching the application.
5.
The
judgment did not engage the other grounds on which the applicant
sought payment of the respective capital amounts.
6.
Had
the court not dismissed the application on the sole basis of a
finding that there is a genuine dispute of facts, then the court
ought to have found further that:
(a)
no
part of the debt claimed had prescribed
.
(b)
the
respondent's reliance on the applicant's apparent non compliance
with Act 40 of 2002 was unsustainable.
(c)
the
applicant was not obliged to refer the non-payment
of
the debt to arbitration.
(d)
the
totality
of
the
circumstances
under
which
the
parties
engaged with each other reveal overwhelming that:
(i)
the
applicant performed the services contracted for and
(ii)
the
respondent at no stage prior to filing its answering affidavit,
disputed that the services were performed, especially in
circumstances
that dictated recording
such
denial.
Consideration
of the merits:
[17]
Mr
Reddy, on behalf of the applicant, relied on the unreported judgment
of
African
National Congress v Ezulweni Investments
(Pty)
Ltd
(979/2022)
[2023]
ZASCA
159
(24
November
2023),
which judgment contains a very valuable exposition of the principles
regarding factual disputes, especially against a factual
background
similar to the present matter
.
[18]
It
is
evident
that the court
a
quo
made
the finding about the alleged existence of a
bona
fide
and
genuine dispute of fact without having identified and/or grappled
with those facts.
[19]
After
the court a
quo
referred
to the well-known
Plascon-Evans
judgment
and the principles enunciated therein, the court merely concluded
that the application should be dismissed with costs.
[20]
In
my view, had the court a
quo
thoroughly
dealt
with the facts of the matter, the court may very well have found that
it is evident that the applicant delivered the required
services,
that the respondent
at
no stage disputed its indebtedness to the applicant and that it was a
matter of mere non-payment of its indebtedness to the applicant.
[21]
Had
the court
a
quo
properly
considered the contents of annexure "A1" to the answering
affidavit
against the background of the totality of facts and circumstances, it
would probably have found that the said letter does
not correspond
with the alleged version of the respondent.
[22]
In
my view there are reasonable prospects of success in that a different
court would come to a different conclusion and would conclude
in
favour of the applicant in accordance with the grounds for the
application for leave to appeal.
[23]
With
regard to the costs of this application, there is no reason why the
usual order that the costs of the application for leave
to appeal be
costs in the appeal, should not be granted.
Order:
[24]
For
the aforesaid reasons I issued the order cited at the beginning of
this judgment.
C.VAN ZYL, J
On
behalf of the applicant:
Adv. G
Reddy
Instructed
by
:
Honey
Attorneys
BLOEMFONTEIN
bianca@honeyinc
.
co
.
za
Vathers
Attorneys
Pietermaritzburg
admin@vathers.co.za
On
behalf of the respondent:
Adv. K Motselebane
Instructed
by
:
Moroka
Attorneys
BLOEMFONTEIN
michael@moroka
.
co
.
za