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2024
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[2024] ZAGPJHC 713
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Oneconnect Solutions (Pty) Ltd v University of Johannesburg and Others (2023/122252) [2024] ZAGPJHC 713 (30 July 2024)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
Case
No:
2023/122252
1.
REPORTABLE: NO
2.
OF INTEREST TO OTHER JUDGES: NO
3.
REVISED: YES/NO
30
July 2024
In
the matter between:
ONECONNECT
SOLUTIONS (PTY) LTD
APPLICANT
And
UNIVERISTY
OF JOHANNESBURG
FIRST RESPONDENT
EIFFEL CORP
(PTY) LTD
SECOND RESPONDENT
PERSONNEL VISION (PTY) LTD T/A
VISIONS
CONSULTING
THIRD RESPONDENT
This judgment was handed down
electronically by circulation to the parties and/or parties’
representatives by email and by
being uploaded to CaseLines. The date
for hand down is deemed to be 30 July 2024
JUDGMENT
G S MYBURGH, AJ:
[1]
This is an application for leave to appeal against a judgment
and order which I delivered in January this year, in terms of which
I
dismissed the main application with costs.
[2]
The test which applies is well known – in essence, a
party who seeks leave to appeal is required to demonstrate that it
has
prospects of success on appeal; alternatively, that there is some
other compelling reason to grant leave. It was not contended that
there are extraneous compelling reasons, and I do not think there are
any. The question is thus simply whether I believe that another
court
might reasonably come to a different conclusion.
[3]
Mr Kutumela, who appeared for the applicant argued that my
judgment departs, in certain material respects, from established
jurisprudence.
He also argued that the effect of my judgment would be
to pre-empt the decision of the court which may, in due course, come
to
hear the review. I am not persuaded that my judgment has either of
the effects contended for; however, for reasons which appear
hereunder, I do not consider it necessary to deal further with this
argument
.
[4]
An argument which I understood to be central to the
applicant’s case was that I ought not to have found that the
applicant’s
tender in respect of the alternative product
“Ultra” was in fact non-compliant (this for reasons which
appear from
my judgment) as the respondent had not raised that as a
defence. I have to confess to being in two minds about this as I am
not
convinced that a distinction falls properly to be drawn between a
tender which, on analysis, and bearing in mind what transpired
during
the bid clarification process, is found not to cover everything that
was required, and one which is non-compliant. In either
event, the
price tendered would not cover everything that was required by the
RFP or invitation to tender, and the price could
accordingly be said
to be misleading – as the university considered the applicant’s
tender to be
.
[5]
That said, I accept that “non-compliant” is
something of term of art and that another court might reasonably
adopt a
view not quite as narrow as that which I adopted and my
reasonably come to a different conclusion – especially on this
on
this issue. I have accordingly decided that leave to appeal
ought properly to be granted. As it appears to me that the issues are
essentially of a legal rather than factual nature, I am of the view
that the appeal should lie to the Supreme Court of Appeal.
[6]
I accordingly make the following order:
Order
a.
The application for leave to appeal is granted.
b.
The appeal shall lie to
the Supreme Court of Appeal.
c.
The costs of the
application for leave to appeal shall be costs in the appeal.
G S MYBURGH
ACTING JUDGE OF THE HIGH COURT
JOHANNESBURG
APPEARANCES
:
For
the Applicant:
Adv L Kutumela
Instructed
by:
Motsoneneng Bill Attorney Inc.
For the 1
st
Respondent:
Adv C Avidon
Instructed
by:
Lawtons Africa
Date
of Hearing:
20 June 2024
Date
of Judgment:
30 July 2024