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2024
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[2024] ZAGPPHC 1211
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Afrirent (Pty) Ltd and Another v NNSI Group (Pty) Ltd and Others (018542/2022) [2024] ZAGPPHC 1211 (19 November 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO: 018542/2022
(1)
REPORTABLE: NO
(2)
OF INTEREST TO OTHER JUDGES: NO
(3)
REVISED: YES
Date:
19 November 2024
In
the matter between:
AFRIRENT
(PTY) LTD
FIRST APPLICANT
(Registration
No. 2003/023485/07)
AFRIRENT
HOLDINGS (PTY) LTO
SECOND APPLICANT
(Registration
No. 2017/056600/07
and
NNSI
GROUP(PTY)LTD
FIRST RESPONDENT
(Registration
No. 2012/213397/07
THE
CITY OF JOHANNESBURG
SECOND RESPONDENT
METROPOLITAN
MUNICIPALITY
THE
MUNICIPAL MANAGER OF THE CITY THIRD RESPONDENT
OF
JOHANNESBURG METROPOLITAN
MUNICIPALITY
In
Re
NNSIGROUP(PTY)LTD
APPLICANT
(Registration
Number: 2012/213397/07)
and
THE
CITY OF JOHANNESBURG
FIRST RESPONDENT
METROPOLITAN
MUNICIPALITY
THE
MUNICIPAL MANAGER OF
SECOND RESPONDENT
THE
CITY OF JOHANNESBURG
METROPOLITAN
MUNICIPALITY
AFRIRENT
(PTY) LTD
THIRD RESPONDENT
(Registration
No: 2003/023485/07)
AFRIRENT
HOLDINGS (PTY) LTD
FOURTH RESPONDENT
(Registration
No 2017/056600/07
JUDGMENT
ALLY
AJ
[1]
This is an interlocutory application in terms of Rule 30A launched by
the applicants
wherein they claim the following:
1.1.
that the first respondent (NNSI Group (Pty) Ltd) be ordered to serve
and file its Rule 53 (3)
notice within 10(ten) days of service of
this order upon its attorneys of record by the applicants' attorneys
of record;
1.2.
that the first respondent (NNSI Group (Pty) Ltd) be ordered to pay
the applicants' costs on an
attorney and client scale including the
costs consequent upon the employment of two counsel, one of which is
a senior counsel.
[2]
The applicants are represented by Adv. P.G. Cilliers SC with Adv
A.P.J. Eis and the
first respondent is represented by Mr Ramothwala.
FACTUAL
MATRIX
[3]
The first respondent launched a review application concerning a
certain tender advertised
by the City of Johannesburg Metropolitan
Municipality and awarded to the applicants.
[4]
The parties met with the Deputy Judge President Ledwaba for case
management of the
matter and a directive
[1]
was issued by Ledwaba DJP. Paragraph 3 of the Directive provides as
follows:
"3.
You are directed to serve and file by uploading unto CaseLines:
3.1
Applicants' supplementary affidavit together with Rule 53 (3) Notice
no later than 7 MARCH
2023;
3.2
Respondents' answering affidavit by no later 17 APRIL 2023;
3.3
Applicants' replying affidavit by no later than 11 MAY 2023;
3.4
Applicants' heads of argument by no later than 31 MAY 2023;
3.5
Respondents' heads of argument by no later than 15 June 2023;
[5]
Applicants contend that whilst a supplementary affidavit was served
and filed, the
respondents' failed to serve a Rule 35(3) notice in
accordance with the directive of Ledwaba DJP.
[6]
The first respondent on the other hand contends that the applicants
together with
the second and third respondents are being obstructive.
First Respondent alleges that the second and third respondents were
the
subject of two contempt applications for the production of the
record of proceedings now being requested from the first respondent.
[7]
The first respondent submits that it is not in a position to comply
with Rule 53(3),
inter
alia
,
because it cannot certify the record, and that the second and third
respondents have served and filed a Rule 53 record of proceedings
[2]
.
It must be stated that the said record of proceedings was served and
filed prior to the case management meeting before Ledwaba
DJP.
[8]
The first respondent alleges further that because of the obstructive
behaviour of
the second and third respondents, it has decided to
amend its notice of motion
[3]
after the directive of the DJP
[4]
.
ANALYSIS
AND EVALUATION
[9]
The First Respondent has chosen to review the decision of the second
and third respondent.
Rule 53 (3) of the Uniform Rules of Court, in
my view, clearly guides an applicant in review proceedings as to what
should be done
[5]
. It cannot be
that an applicant decides of its own accord that it will not perform
in accordance with these provisions. Furthermore,
in line with Rule
53, Ledwaba DJP gave directions as to how this matter should be
proceed.
[10]
The first respondent has served and filed it supplementary affidavit
mentioned in the DJP's directive
and has chosen to amend its notice
of motion. However, the first respondent, mentions that it will rely
on a USB or flash disk
or memory stick as part of its case
[6]
.
This very statement is what the applicant in this interlocutory
application wants the first respondent to do, namely, indicate
what
it would be relying on its review application.
[11]
I must agree with the first respondent, however
, that the
delivery of blackened out or blank pages by applicant cannot be
condoned. It is understandable that the applicant requests
the
documentation to be kept safely and confidentially but that is why
the registrar is there. It is the registrar's duty to keep
the Rule
53 record safely.
[12]
However, the first respondent did not launch a counter-application
for the applicant to produce
a clear record of its bid and this
Court, in my view, cannot
mero motu
, order same. This Court
can, however, deal with the approach of the applicant in the review
proceedings, when dealing with the
costs of this application.
CONCLUSION
[13]
Accordingly, in my view, the first respondent must comply with Rule
53(3) before the review application
is heard.
COSTS
[13]
The applicants have requested a punitive costs order against the
first respondent should the
application be successful. The first
respondent has similarly submitted that the applicants should be
penalised with a punitive
costs order should it be successful.
[14]
It is trite that a Court has a discretion when awarding costs and
that this discretion must be
exercised judiciously.
[15]
I have had regard to the attitude of both parties and am of the view
that a deviation from the
norm that costs follow the result, should
be applied. Accordingly, the costs of this application shall be costs
in the cause.
[16]
Accordingly, the following Order shall issue:
a) the first respondent
(NNSI Group (Pty) Ltd) is hereby ordered to serve and file its Rule
53 (3) notice within 10(ten) days of
service of this order upon its
attorneys of record by the applicants' attorneys of record;
b).
the costs of this application shall be costs in the cause.
ACTING
JUDGE OF THE HIGH COURT
GAUTENG
DIVISION OF THE HIGH COURT, PRETORIA
Electronically
submitted therefore unsigned
Delivered:
This judgement was prepared and authored by the Judge whose name is
reflected and is handed down electronically by circulation
to the
Parties/their legal representatives by email and by uploading it to
the electronic file of this matter on Caselines. The
date for
hand-down is deemed to be 19 November 2024
Date
of virtual hearing: 25 August 2023
Date
of judgment: 19 November 2024
Appearances:
Attorneys
for the Applicant:
ALBERT HIBBERT ATTORNEYS
jaco@hibbertlaw.co.za
Counsel
for the Applicant:
Adv. P.G. Cilliers SC with Adv. APJ Els
Attorneys
for the 1st Respondent:
MAFONA RAMOTHWALA
mafona@mrinc.co.za
Mr Ramothwala
[1]
Caselines: Section: 23-12: Annexure "PJ1"
[2]
Caselines: Section 13
[3]
Caselines: Section 19-3
[4]
supra
[5]
Venmop 275 (Pty) Ltd and another v Cleverlad Projects (Pty) Ltd and
another
2016 (1) SA 78
(GJ) at para 17
[6]
Caselines: Section 19-14: para 3.3 et seq