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[2024] ZAFSHC 185
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Joint Venture (Ntema Investments CC / Sedtrade (Pty) (Ltd)) and Another v Department of Human Settlements Free State Province and Another (533/2024) [2024] ZAFSHC 185 (18 June 2024)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
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: 533/2024
In
the matter between:
JOINT
VENTURE (NTEMA INVESTMENTS CC /
SEDTRADE
(PTY) LTD)
First
Applicant
NTEMA
INVESTMENTS CC
Second
Applicant
(Reg
no: 2002[…])
and
DEPARTMENT
OF HUMAN SETTLEMENTS
FREE
STATE PROVINCE
First
Respondent
SEDTRADE
(PTY) LTD
Second
Respondent
CORAM:
VAN ZYL, J
HEARD
ON:
8
FEBRUARY 2024
DELIVERED
ON:
18 JUNE 2024
[1]
This matter served before me as a fully opposed urgent application in
which the applicants are
seeking the following relief:
“
1.
That the Applicant`s non-compliance with the rules of this Honourable
Court regarding service be
condoned and the matter be heard on an
urgent basis in terms of Rule 6(12).
2.
That the 1
st
Respondent be ordered to comply with the
appointed (sic) letter dated 21 August 2017 regarding the
construction of houses: REFENGKGOTSO
2614 HOUSES, as well as the
contents of the Approved Bid No:
RFH-HS-B01/2016/2017
.
3.
That the 1
st
Respondent be ordered to include the
Applicant back to the project and that the 1st Respondent liaise with
the Applicant in all
matters regarding the site known as REFENGKGOTSO
2614 HOUSES in writing.
4.
That the 1
st
Respondent be ordered to comply with order
number 2 & 3 above.
5.
That the time lost due to the 1
st
Respondent`s failure to
appoint project engineers; covid-19; inability to have project plans
approved by the municipality and non-payment
of the contractors, be
factored back into the project.
6.
That the present quantum approved by the National Department of Human
Settlements be applied
on the project.
7.
Alternatively, should the 1
st
Respondent wish to terminate
the Applicants` appointment on the project, then they be ordered to
pay 30% of the remaining amount
of the project on present
rate/quantum of the Department of Human Settlements which would have
been the applicants` profit on the
project.
8.
The costs of this Application be paid by any party who opposes same
on an attorney and own
client scale.”
Succinct
background according to the applicants:
[2]
The deponent to the founding affidavit, Ms Ramusi, stated that she is
duly authorised on behalf of the second
respondent of which she is
the sole director and that she has been authorised to act and depose
to the affidavit on behalf of the
first applicant.
[3]
On or about 21 August 2017 the second applicant and the second
respondent were awarded the tender referred
to in the Notice of
Motion (“the tender”) by the first respondent.
[4]
The second applicant and the second respondent entered into a joint
venture agreement to work
together in constructing the immovable
properties in terms of the tender. They therefore formed the first
applicant (“the
joint venture”).
[5]
Some disputes developed between the parties,
the details of which are not all relevant for present
purposes.
[6]
There were certain circumstances that led to delays and stoppages in
performing and finalising
the tender work.
[7]
I deem it necessary to quote certain extracts from the founding
affidavit:
“
8.10
On or about 15 November 2023, the 2
nd
applicant visited
the site and discovered that there is a new unknown contractor
working on site without the applicant`s knowledge
and the 1
st
respondent never informed the applicants about returning back to
site. On or about 23 November 2023, upon the 2
nd
applicant’s enquiry, the 1
st
respondent confirmed
that the new contractor will work with the 2
nd
applicant.
That the 1
st
respondent’s official confirmed that
the 2
nd
respondent has been replaced by the new
contractor. Kindly find the attached hereto WhatsApp communication
between the 1
st
respondent and the 2
nd
applicant as annexure “NT5”.
8.11
On the very same month of November 2023, the 2
nd
applicant
has approached her legal representatives to seek an advice, the 2
nd
applicant`s lawyers have drafted a letter of demand to the 1
st
respondent, but the 1
st
respondent dismally failed to
comply.
8.12
Failure to adhere with the 2
nd
applicant`s demand, an
urgent application of interdict was initiated before this honourable
court, wherein an order concerning
payment of outstanding balance was
granted in favour of the 1
st
applicant. Surprisingly, the
1
st
respondent have relied on a letter composed by the 2
nd
respondent, and same entailed the content that it is not economically
viable to complete the project with the current quantum and
also
seeking termination of the project without having consulted with the
2
nd
applicant. The 2
nd
applicant became aware
of the above letter on or about 18 January 2024/court date and such
letter was drafted 14
th
day of November 2023. Kindly find
the attached hereto letter as annexure “NIT6”.
8.13
It is submitted that the 2
nd
respondent has no
locus
standi
/ power to have composed this letter and that the
content/supplication therein has no legal effect. …Kindly find
the attached
hereto letter to the 2
nd
respondent as
annexure “NIT7”.”
Response
of the first respondent:
[8]
In its answering affidavit the first respondent raises three points
in opposition to the application,
namely:
1.
The lack of urgency, alternatively
reliance on self-created urgency;
2.
The question whether the first applicant
is properly before court and whether the deponent was authorised to
have instituted the
proceedings in the name of the first respondent;
and
3.
The lack of merits of the application.
Applicable
legal principles regarding urgency:
[9]
Rule 6(12) determines as follows:
“
6(12)
(a)
In
urgent applications the court or a judge may dispense with the forms
and service provided for in these rules and may dispose
of such
matter at such time and place and in such manner and in accordance
with such procedure (which shall as far as practicable
be in terms of
these rules) as it deems fit.
(b)
In
every affidavit filed in support of any application under
paragraph
(a)
of
this subrule, the applicant must set forth explicitly the
circumstances which is [
sic
]
averred render [
sic
]
the matter urgent and the reasons why the applicant claims that
applicant could not be afforded substantial redress at a hearing
in
due course.”
[10]
In
Nelson Mandela Metropolitan Municipality & Others v
Greyvenouw CC & Others
2004 (2) SA 81
(SE) the court
referred to the judgment which is considered to be the
locus
classicus
on self-created urgency, namely
Schweizer Reneke
Vleis (Mkpy) (Edms) Bpk v Minister van Landbou & Andere
1971 (1) PH F11 (T) where the following was stated at F11 – 12:
“
Volgens die
gegewens voor die Hof wil dit vir my voorkom dat die applikant
alreeds vir meer as ‘n maand weet van die toedrag
van sake
waarteen daar nou beswaar gemaak word. Die aangeleentheid het
slegs dringend geword omdat die applikant getalm het
en omdat die
tweede respondent, soos die applikant lankal geweet het, of moes
geweet het, van die besigheid in Schweizer-Reneke
geopen het.
Die applikant mag gewag het vir inligting van die eerste respondent
soos in die skrywe aangevra maar dit was
geensins nodig vir die
doeleindes van hierdie aansoek, wat op die nie-nakoming van die
audi
alteram partem
-reël gebaseer is, om so lank te wag om die
Hof te nader nie. Al hierdie omstandighede inaggenome is ek nie
tevrede dat
die applikant voldoende gronde aangevoer het waarom die
Hof op hierdie stadium as a saak van dringendheid moet ingryp nie.
Ek is dus, in omstandighede, nie bereid om af te sien van die gewone
voorskrifte van Reël 6.”
[11]
In
Tukela v Minister of Public
Works
(P578/17)
[2017] ZALCPE 29 (19 December 2017) the Court referred to the
aforesaid
Schweizer Reneke
Vleis
-judgment and held as
follows at paras [14] – [15]:
“
[14] It is trite
that an Applicant cannot create his or her own urgency by delaying
bringing an application. This Court will not
come to the assistance
of an applicant who has delayed approaching the Court. See
National
Police Services Union & Others v National Negotiating Forum &
Others
(1999) 20 ILJ 1081 (LC) at 1092 paragraph [39] where Van
Niekerk, AJ (as he then was) stated the following:
‘
The latitude
extended to parties to dispense with the rules of this court in
circumstances of urgency is an integral part of a balance
that the
rules attempt to strike between time-limits that afford parties a
considered opportunity to place their respective cases
before the
court and a recognition that in some instances, the application of
the prescribed time-limits or any time-limits at
all, might occasion
injustice. For that reason, rule 8 permits a departure from the
provisions of rule 7, which would otherwise
govern an application
such as this. But this exception to the norm should not be available
to parties who are dilatory to the point
where their very inactivity
is the cause of the harm on which they rely to seek relief in this
court. For these reasons, I find
that the union has failed to satisfy
the requirements relating to urgency.’
[15] I am in light
of the afore-going of the view that the Applicant has created her own
urgency by the substantial delay.
I am of the view that the
application falls to be struck of the role.”
[12]
In
Director of Public Prosecutions (Western Cape) v Midi
Television (Pty) Ltd t/a E TV
2006 (3) SA 92
(C) the
aforesaid principle was stated as follows at para [47]:
“
[47]
The next question to determine is whether the matter was urgent or
that an urgency was self-created. It is correct that an
applicant
cannot create its own urgency by delaying bringing the application
until the normal rules can no longer be applied.”
[13]
Arising from and connected to the aforesaid principle, is the
consequent obligation on an applicant in an
urgent application to
explain all periods of delay for purposes of making out its case for
urgency. The relevant principle applicable
to condonation
applications in this regard is consequently
mutatis
mutandis
applicable to an urgent
application.
In
High Tech Transformers (Pty) Ltd v
Lombard
(2012) 33 ILJ 919 (LC) the importance of a reasonable
and acceptable explanation for a delay was accentuated at para [25]
of the
judgment:
“
[25] …
Condonation is not merely for the asking as
was duly pointed out by the court in
NUMSA
& another v Hillside Aluminium
[2005] ZALC 25
;
[2005]
6 BLLR 601
(LC):
'[12]
Additionally, there should be
an acceptable explanation tendered
in respect of each period of delay
. Condonation is not there
simply for the asking. Applications for condonation are not a
mere formality. The onus rests on
the applicant to satisfy the court
of the existence of good cause and this requires a
full,
acceptable and ultimately reasonable explanation
. …
Nevertheless, to do justice to the aims of the legislation, parties
seeking condonation for non-compliance are obliged
to set out full
explanations
for each and every delay throughout the
process
.’” (My emphasis)
Consideration
of factual circumstances in the present matter:
[14]
The application referred to above in which payment of an alleged
outstanding balance was granted in favour
of the first applicant,
also served before me (“the first application”). It
served before me on 18 January 2024. The
relief which was sought in
the first application, were in some instances identical to that of
the present application, specifically
also prayer 3. In the first
application the following relief was sought in the Notice of Motion:
“
1.
That the Applicant`s non-compliance with the rules of this Honourable
Court regarding service be
condoned and the matter be heard on an
urgent basis in terms of Rule 6(12).
2.
That the 1
st
Respondent be ordered to comply with the
appointed (sic) letter dated 21 August 2017 regarding the
construction of houses: REFENGKGOTSO
2614 HOUSES, as well as the
contents of the Approved Bid No:
RFH-HS-B01/2016/2017
.
3.
That the 1
st
Respondent be ordered to
include the Applicant back to the project and that the 1st Respondent
liaise with the Applicant in all
matters regarding the site known as
REFENGKGOTSO 2614 HOUSES in writing.
4.
That the 1
st
Respondent be ordered to pay an outstanding
invoice in the amount of R585 43330 to the Applicant within seven
working days (7)
as from the date of court order.
5.
That the 1
st
Respondent be ordered to make payment of the
work performed by the Applicant through a cession or joint venture
account.
6.
That the project of constructions be stayed for seven (7) days
pending the compliance of
order number 4
supra
by the 1
st
Respondent.
7.
The costs of this Application be paid by any party who opposes same
on an attorney and own
client scale.” (My emphasis)
[15]
The first application was also opposed by the first respondent and an
opposing affidavit was due to be filed
on the day of the hearing of
the application. However, instead of persisting with the first urgent
application, the parties settled
the matter and I was requested to
make an order by agreement between the parties for payment to the
joint venture of the money
claimed on or before 31 January 2024,
each party to pay its own costs, which I duly did.
[16]
The allegations relied upon for the requested relief in the first
application is also almost identical to
the allegations relied upon
in the present application. In support of the present application the
applicants (or second applicant)
again refer to and rely on the fact
that on 15 November 2023 the second applicant visited the site and
discovered that there is
a new contractor working on site without the
applicant`s knowledge and the first respondent never informed the
applicants about
returning back to site. That is why the applicants
sought an order in the first application that the first defendant be
ordered
to allow the applicant back to the project, the very same
relief she is currently seeking. However, the applicant did not
persist
with this relief in the first application. The applicant is
now suddenly again seeking the said relief on an urgent basis in the
present application, although it has been to her knowledge since 15
November 2023.
[17]
Because the parties settled the first application, I did
not determine the urgency of the first application. However,
I need
to point out that in the first application the second applicant
relied on a letter of demand which was attached to the first
application as annexure “NIT4”, which specifically stated
that it was addressed on behalf of “Ntema Investments
CC”.
On face value thereof, it was dated 30 November 2023; however,
despite the fact that the second applicant became aware
of the new
contractor on site on 15 November 2023 already, the said letter of
demand was only handed to the first respondent on
30 November 2023.
No explanation was provided for that time delay. In addition, the
said letter of demand provided for seven working
days for the parties
to endeavour to resolve the issues amicably, but the first
application was only filed on 10 January 2024,
again without any
explanation for the delay. The reason I am referring to these
circumstances of the first application, is that
the very same
allegations, circumstances and letter of demand are repeated in the
present application, again without any explanation
for the said
delays.
[18]
It is necessary to point out that in the aforesaid first letter of
demand the second applicant already knew
about and bemoaned the fact
of another/new contractor on the site by having stated the following:
“
Lastly, it is our
instruction to beseech your office to create a working environment
for the purposes of work to be completed, as
it is apparent that
there is another/new contractor who occupied the site.”
[19]
In the present application a second letter of demand is dealt with,
annexure “NIT7” dated 19
January 2024, again addressed to
the first respondent, in which
, inter alia,
the following is
again stated:
“
3.
Accordingly, it is our instruction to beseech your office to
reinstate the joint venture on site
within seven (7) working days of
receipt of this letter, failing which legal steps shall be taken
against your office without further
notice. Alternatively, our client
is amicable for negotiation within the above time prescripts.”
[20]
This time the second respondent is attempting to rely on a letter
dated 14 November 2023 which she allegedly
only became aware of on 18
January 2024 at the the previous High Court Hearing. The letter is
attached to the founding affidavit
as annexure “NIT6”.
[21]
What the second applicant is not mentioning is that the letter,
“NIT6”, was attached to the answering
affidavit filed in
the first application. Instead of having then dealt with the letter
in the replying affidavit, the applicants
preferred to opt for the
settlement of the payment of the money and only now attempts to rely
on the said letter for the relief
the first applicant is seeking.
This, in my view, constitutes self- created urgency.
[22]
More importantly, the second applicant is attempting to now rely on
an issue which had come to her knowledge
on 15 November 2023 already
and which has been continuing throughout to date. As correctly stated
by Ms Tlelai, on behalf of the
first respondent, this is a classic
example of self-created urgency, which is not to be allowed for
purposes of Rule 6(12).
[23]
The application consequently stands to be struck from the roll.
Clarification:
[24]
At the commencement of the hearing, I indicated that I wanted to hear
submissions from both parties on the
points
in liminé,
including the issue of urgency, and on the merits. I specifically
explained that it should not be seen as that I am satisfied with
the
urgency of the matter. It is merely a practical approach so that
should I find that I am satisfied with the issue of urgency,
I can
continue to consider the further issues without having to hear the
parties again.
[25]
Because of my findings in respect of the lack of urgency for purposes
of Rule 6(12), it serves no purpose
and is unnecessary to deal with
the other disputes between the parties. Suffice it to say that proper
consideration will have to
be given to the question whether a court
will be able to adjudicate the disputes between the parties on
application procedure.
Costs:
[26]
With regard to costs, it is in my view fair and reasonable that the
second applicant be ordered to pay the
costs, not jointly and
separately with the joint venture. It is evident from the totality of
the papers before me that the second
applicant is the actual party on
whose behalf the litigation was and is driven and not so much on
behalf of the joint venture.
This is probably also the reason that
there are inconsistencies in the papers in distinguishing between the
first applicant, the
second applicant and both applicants together.
Order:
[27]
I consequently make the following order:
1.
The application is struck from the roll.
2.
The second applicant is ordered to pay the costs of the application.
C.
VAN ZYL, J
On
behalf of the applicants:
Adv.
Thidi
Instructed
by
:
Ramusi
Attorneys
Polokwane
C/O
Moroka Attorneys
Bloemfontein
admin@ramusiattorneys.co.za
On
behalf of the first respondent:
Adv.
L. Tlelai
Instructed
by:
Office
of the State Attorney
BLOEMFONTEIN
rumukatuni@justice.gov.za