REPUBLIC OF SOUTH AFRICA
IN THE IDGH COURT OF SOUTH AFRICA
FREE STATE DIVISION, BLOEMFONTEIN
In the matter between:
THE MEMBER OF THE EXECUTIVE COUNCIL:
DEPARTMENT OF HUMAN SETTLEMENTS,
FREE STATE
and
SXB CIVILS & PROPERTY DEVELOPERS CC
Coram: Opperman J
Heard: 30 August 2024 Not reportable
Case no: 2622/2023
Applicant1
Respondent2
Delivered: 28 January 2025. The judgment was handed down in court and
electronically by circulation to the parties' legal representatives by
email and by release to SAFLII on 28 January 2025. The date and
time for hand-down is deemed to be 15h00 on 28 January 2025
1 'Applicant/MEC'.
2 'Respondent'.
Summary: 2
Leave to appeal -rescission application -non-compliance with
the Uniform Rules of Court by the applicant and legal
representatives for the applicant.
ORDER
The application for leave to appeal is dismissed with costs and on an attorney and
client scale.
Opperman, J
Introduction JUDGMENT
[1] This is an application for leave to appeal after the court ordered as follows
in February 2024.
'ORDER:
1. The application for the postponement of the matter is dismissed with costs. The costs to
be on an attorney and client scale.
2. The application for the condonation of the late filing of the rescission application is
dismissed with costs. The costs to be on an attorney and client scale.
3. The application for rescission of the order dated the 3rd of August 2023 and granted by
Mhlambi J is dismissed with costs. The costs to be on an attorney and client scale.'
[2] The respondent did prove their case on the law that is applicable. The
applicant did have a fair trial and extensive opportunity to present their case; they
failed to do so. The record will show that it is not only the legal practitioner that
is held accountable for the outcome of the case but also the MEC that did not
manage their case in accordance with the law. They did have access to court and
3
extensively so. Section 34 of the Constitution is not a limitless right that can be
abused as it was in this case.
[3] The justice system battles to maintain veracity because the layperson
cannot fathom the delays and the astronomical costs that makes access to justice
unreachable. The Constitutional Court remarked in Grootboom v National
Prosecuting Authority and Anothe? that:
'[21] The failure by parties to comply with the rules of court or directions is not of recent
origin. Non-compliance has bedevilled our courts at various levels for a long time. Even this
Court has not been spared the irritation and inconvenience flowing from a failure by parties to
abide by the Rules of this Court.'
[ 4] Parties may not twist, manipulate and manoeuvre the rules of law as, when
and how it suits them; it simply destroys the administration of justice. Litigants
have the right and the duty to keep each other accountable to the rule of law.
[5] The Supreme Court of Appeal in Crookes Brothers Ltd v Regional Land
Claims Commission for the Province of Mpuma/anga and Others4 noted that:
'(27] It remains to observe 1ha1 the conduct of the officials in the employ of respondents
evokes strong feelings of disquiet in one. Because of their conduct the public purse is much the
poorer ... To that must he added the costs of what can only he described as ill-advised and
morally uncomcionable litigation. In Mokala Beleggings (Pty) Ltd, Majiedt JA observed (para
16):
" ... Considerable circumspection, diligence and sensitivity are required on the part of all
concerned, including departmental officials ... '" (Emphasis added.)
3 Grootboom v National Prosecuting Authority and Another (CCT 08/13) (2013) ZACC 37; 2014 (2) SA 68 (CC);
2014 (1) BCLR 65 (CC); r20J4l l BLLR I (CC); (2014) 35 ILJ 121 (CC) (21 October 20L3).
4 Crookes Brothers ltd v Regional land Claims Commission for the Province of Mpumalanga and Others
(590/2011) [2012) ZASCA 128; 2013 (2) SA 259 (SCA); (2013) 2 All SA I (SCA) (21 September 2012).
4
[6] Section 34 of the Constitution cuts both ways; both the applicant and
respondent have a right to justice by the effective application of the administration
of justice.
[7] The case of Venmop 275 (Pty) Ltd and Another v Clever/and Projects (Pty)
and Another5 said it all and lays down the law:
'[7] The efficient conduct of litigation has as its object the judicial resolution of disputes
optimising both expedition and economy . The conduct and finalisation oflitigation in a speedy
and cost-efficient manner is a collaborative effort ... Where practitioners neglect their roles,
it leads to the protracted conduct of the litigation in an ill-disciplined manner, the introduction
of inadmissible evidence and the confusion of fact and argument, with the attendant increase
in costs and delay in its finalisation, inimical to both expeditio n and economy .'
[8] Litigants are the masters of their cases and not their legal representatives.
It should not be necessary for the comt to protect the rule of law against litigants.
The Constitutiona l Court in the Zuma v Secretary of the Judicial Commission of
Inquiry into Allegations of State Capture, Corruption and Fraud in the Public
Sector Including Organs of State and Others6 was clear and unyielding when it
was ruled that:
'[2] ... Ironically, the judgment now impugned , contains a thorough exposition of the rule
of law and its fundamental importance to South Africa's constitutional democracy. Indeed, it
says, "[n]o one familiar with our history can be unaware of the very special need to preserve
the integrity of the rule of law" in South Africa. Yet, with the finality of its decision questioned,
this Court, once again, finds itself tasked with defending the integrity of the rule oflaw.
[103] If our law, through the doctrine of peremption , expressly prohibits litigants from
acquiescing in a court's decision and then later challenging that same decision, it would fly in
the face of the interests of justice for a party to be allowed to wilfully refuse to participate in
5 Venmop 275 (Pty) lid and Another v Clever/and Projects (Pty) and Another (2014/14286) [2015] ZAGPJHC
176; 2016 (I) SA 78 (GJ) (3 August 2015).
6 Zuma v Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corroption and Fraud
in the Public Sector Including Organs of State and Others (CCT 52/21) L2021] ZACC 28; 2021 (11) BCLR 1263
(CC) (l7 September202 1).
5
litigation and then expect the opportunity to re-open the case when it suits them. It is simply
not in 1he inlerests of justice 10 tolerate this manner of litigious vacillation. ' (Emphasis added)
Leave to appeal
[9] In Dexgroup (Pty) Ltd v Trustco Group International (Pty) Ltd and Others7
the Supreme Court of Appeal stressed that a court should not grant leave to appeal
and it is under a duty not to do so where the threshold which warrants such leave
has not been cleared by the applicant:
'The need to obtain leave to appeal is a valuable tool in insuring that scarce judicial resources
are not spent on appeals that lack merit. '8
[10] The High Court elucidated in H.B (Nee D.J) v R.J.B (Leave to Appea/)9
that the dictum above means that a court may not grant leave to appeal where the
threshold which warrants such leave has not been cleared by the Applicant:
'[5] Applications for leave to appeal are governed by the provisions of section 17 of
the Superior Courts Act 10 of 2013. Section 17(1) orovides as follows:
"(l) Leave to appeal may only be given where the judge or judges concerned are of the opinion
that:
(a) (i) the appeal would have 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) The decision sought to appeal does not fall within the ambit of section 16(2)(a); and
(c) Where the decision sought to be appealed does not dispose of all the issues in case, the
appeal would lead to a just and prompt resolution of the real issues between the parties."
[6] The traditional test that was applied by the Courts in considering leave to appeal
applications have been whether there is a reasonable prospect that another Court may come to
a different conclusion to the one reached by the Court a quo [Commiss ioner of lnland Revenue
v Tuck 1989 (4) SA 888 (T) at 890B]. With the enactment of section 17, the test obtained
1 Dexgroup (Pty) ltdv Trustco Group International (Pty) Ltd and Others (687/12) [2013] ZASCA 120; 2013 (6)
SA 520 (SCA); f2014) 1 All SA 375 (SCA) (20 September 2013).
8 Ibid para 24.
9 11.B (Nee D.J) v R.J.B {leave to Appeal) (21480/20 l4) [2024) ZAGPPHC 401 (2 April 2024 ).
6
statutory force. [n terms of section 17(1)(a)(i) leave to appeal may now only be granted where
the Judge or Judges concerned is of the view that the appeal would have a reasonable prospect
of success, which made it clear that the threshold to grant leave to appeal has been raised.
In Mont Chevant Trust v Tina Goosen and 18 Others supra, at para 6, it was held that:
"It is clear that the threshold or 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 at a different conclusion, see Van
Heerden v Cronwright & others 1985 (2) SA 342 (I') at 342H 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." In Notshokuvu v S (2016) ZASCA 112 at
para 2, it was indicated that an Appellant faces a "higher and stringent" threshold under
the Superior Courts Act. Thus, in relation to said section 17, the test for leave to appeal is
not whether another Court "may" come to a different conclusion , but "would" indeed come to
a different conclusion.
[7] With regard to the meaning of reasonable prospects of success, it was held in ~
Smith 2012 (1) SACR 567 (SCA) 570, at para 7, as follows:
"What the test of reasonable prospects of success postulates is a dispassionate decision, based
on the fact and the Jaw, 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."
[8] In the decision of Ramakatsa v ANC which it was [(724/20 I 9)[2021] ZASCA 31 (31
March 2021 )] it was held that:
"I am mindful of the decision at High Court level debating whether the use of the word "would"
as oppose lo "could" possible mean that the threshold or granting the appeal has been raised
If a reasonable prospect of success is established, leave to appeal should be granted. . . The
test of reasonable prospect of success postulates 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 [at para 10].
7
[9] ln Van Zyl v Steyn [(83856/15) [2022] ZAGPPHC 302 (3 May 2022) the Court
considered the decision of Ramakats!!, para 10, supra against the background of: inter
alia, MEC for Health, Eastern Cape v Mkhitha and Another [2016 ZASCA 176 (25 November
2016) para 16-18], Notshokovu v S, supra, Van Wyk v S, Galela v S [(2014) ZASCA
152; 2015 (1) SACR 548 (SCA), para 14], Four Wheel Drive Accessory Distributors CC v
Rattan No [2019 (3) SA 451 (SCA), para 34], Zuma v Office of the Public Protector and
Others [20201 ZASCA 133 (30 October 2020), para 19], Nwafor v Minister of Home Affairs
and Others [(2021) ZASCA 58 (12 May 2021) para 25 and Khatide v S [(2022) ZASCA 17 (14
February 2022) at para 4] and concluded that the Ramakatsa judgment did not lower the
threshold as generally applied and that all courts must still determine if an appeal could
have a reasonable prospect of success [at para 15 thereof].' (Emphasis added)
The reasons for judgment
[11] The submissions on which the application for leave to appeal are based do
not align with the reality of the case. The application cannot be granted. I reiterate:
'BACKGROUND
[l] Rule 49(l)(c) ofthe Uniform Rules of Court reads as follows:
When ia giving an order, the court declares that the reason for the order will be
furnished to any of the parties on application, such application shall be delivered within
l O days after the date of the order.
[2] On the 22nd of February 2024 the application served before me as a de iure unopposed
rescission application and an ex-tempore judgment was handed down and the order
issued. There was not any indication that the court will furnish any further reasons or
reasons on application. This notwithstanding , a request for reasons was filed on l March
2024. I will thus elaborate on the ex-tempore judgment.
[3] The case is a shocking example of grave neglect by the legal practitioner serving at the
Office of the State Attorney, Free State, Bloemfontein that represented the applicant.
This case is tainted with sloppy management of the applicant 's litigatory obligations by
the legal practitioner for the applicant. The matter will be reported to the Legal Practise
Council ("LPC"); Free State by ordering the Registrar of this court to forward a copy
of this judgment to the Director of the LPC: Free State.
8
[4] On 22 February 2024 it was ordered that the application for the postponement of the
matter is dismissed , the application for the condonation of the late filing of the
rescission application is dismissed and the application for rescission of the order dated
the 3rd of August 2023 and granted by Mhlambi J, is dismissed. The applications were
dismissed with costs. The costs to be on an attorney and client scale.
[5] The matter was set down on the opposed motion court roll on 22 February 2024 though
it became unopposed by the litigatory malfunction and fault of the applicant. On the
morning of 22 February 2024; just as the court was to proceed with the application,
there was a request from counsel to address the court in chambers.
[6] The legal practitioner for the applicant informed the court that she only learned that the
matter is on the roll when she came to court that morning for another case and she
noticed it on the roll. She wanted to apply for a postponement. She proceeded to inform
the court about the case-load that she carries at the Office of the State Attorney: Free
State and that the non-compliance with the rules is all her fault. I informed counsel that
the matter must be addressed in court and that I feel uncomfortable to hear the issues in
chambers.
[7] The respondent is SXB Civils and Property Developers CC, (Registration
number:2005/103971 /23), a close corporation , with its address for purposes of this
application at 204 Andries Pretorius Road, Noordhoek, Bloemfontein , Free State
Province.
(8] The applicant is the MEC: Department of Human Settlements, Free State Province, in
his representative capacity, with chosen domicilium address at Room 749, OR Tambo
House, c/o St Andrews & Markgraaff Streets, Bloemfontein , Free State Province and
address for purposes of service of this application at the Offices of the State Attorney,
11th Floor, Fedsure Building, 49 Charlotte Maxeke Street, Bloemfontein, Free State
Province.
9
THE IDSTORY AND THE FACTS
[9] This is the history and facts of the case as per the affidavits submitted into evidence by
the respondent ; it speaks of a total mismanagement of the case by the applicant and
their legal representative that involves R9 451 205,55 of the taxpayers' money:
1. On or about the I st of December 2017 the applicant and the respondent entered
into a written agreement for the construction of 200 housing units in Memel,
Free State Province.
2. The appointment letter dated 16 October 2017, in which the applicant appointed
the respondent to perform works of construction was handed into evidence.
3. The date of completion of the project was extended until 31 March 2021.
4. The respondent accepted the appointment and established site on the l st of
November 2017. In November 2017 the respondent rented offices in Memel as
well as secured a storage facility that acted as a site camp. The respondent
appointed security to guard the premises at night. The respondent transported
the concrete equipment, earthmoving equipment and housed the personnel that
have been allocated to the project.
5. The respondent was not allowed by the applicant to commence the project
before the applicant provided a list of beneficiaries , as well as the completion
of the geotechnicaJ report.
6. The applicant delayed the process of obtaining a list of beneficiaries as well as
the completion of the geotechnical report until September 2019. The respondent
only commenced with the project during October 2019. A total of twenty-three
(23) months were lost by the respondent in this regard.
7. On 23 March 2020 the President announced a national Iockdown. The lockdown
had a severe impact on the completion date and costs to navigate the practical
implications of the lockdown. The respondent had no control over the situation
10
but was legally bound by the implications of the various stages of the lockdown
to execute actions to comply with legislation.
8. On 27 May 2021 the respondent submitted a claim to the applicant for
compensation relating to abovementioned standing time and losses caused by
the COVID-19 pandemic.
9. The total loss suffered by the respondent due to standing time is calculated at an
amount of RS 641 225.00 and the losses caused by the COVID-19 pandemic are
calculated at an amount of R3 809 980.55. The total amount of the losses is
calculated at an amount of R9 451 205.55.
10. The events that had caused abovementioned losses are either "Justifiable
Events" or "Relief Events" as defined in Clause 2.1 of the agreement.
11. The applicant failed to pay abovementioned claim by the respondent.
12. On 5 May 2021 the District Director of the applicant , P. Mohloki, recommended
that the Department should pay the respondent 's losses.
13. Despite this recommendation , the applicant failed to pay the claim of the
respondent.
14. On 13 July 2021 the respondent, through an attorney firm, referred the claim for
dispute resolution and in terms of Clause 23 of the agreement. The parties were,
however, unable to resolve the dispute.
15. The project was completed during September 2021 and did the Department pay
the respondent regarding work done for the last invoice rendered by the
respondent on 17 August 2021. Last-mentioned payment was not related to the
respondent 's claim relating to standing time and the effects of the COVID-19
pandemic , but for work done and materials rendered.
11
16. The General Conditions of Contract ("GCC": third edition, 2015) were
applicable in as far as not specifically amended by the agreement and is the
respondent entitled to compensation for standing time with reference to Clause
5.10, read with 10.1 of the GCC.
17. The respondent is severely prejudiced by the non-payment of the claim and the
delay in the litigation. The amount due is substantial. [n terms of the agreement
the respondent had to provide all the necessary materials and labor, plant
equipment and so forth to render the services to the applicant. The respondent
suffered severe losses due to the late-performance of the applicant and due to
the COVID-19 pandemic.
18. The respondent issued summons on 29 May 2023 with proper service on the
applicant for the payment of the R9 451 205.55.
19. The respondent informed that: "TAKE NOTICE FURTHER that if no such
notice of intention to oppose be given, this application will be made on
Thursday, the 9th of June 2023, at 09H30, or as soon thereafter as the matter
may be heard."
20. On 22 June 2023 the applicant issued and served a notice to oppose out of the
Office of the State Attorney: Free State Bloemfontein. This was the last
movement in Litigation that the State Attorney made on behalf of their client. It
must be noted that the same legal practitioner handled the matter throughout
this litigatory tragedy.
21. There was not any answering affidavit or any other response from the applicant.
22. The matter was set down on 27 July 2023 for the 3rd of August 2023 with proper
service on the Office of the State Attorney. In fact, receipt and acknowledgment
of this notice was at 12h20 on 27 July 2023. The applicant blatantly ignored the
litigation.
12
23. The matter became unopposed due to the above fault.
24. On 3 August 2023 Mhlambi J issued the following order:
IT JS ORDERED THAT:
1. The Respondent shall pay to the Applicant the amount ofR9 451 205.55;
2. The Respondent shall pay the Applicant interest on the amount of R9 451
205.55 a tempore morae.
3. The Respondent shall pay the costs of this application.
25. Only on 28 November 2023 did the application for rescission by the applicant
see the light. I quote verbatim from the founding affidavit:
"REQUIREMENTS IN TERMS OF RULE 31{2){b) AND
CONDONATION
26. As mentioned in paragraph 24.3 above, an application for the rescission of a
default judgment should be brought within twenty days after the Applicant has
knowledge of the default judgment granted against it.
27. By letter dated 27 June 2023, written by Adv NG Sidzamba, the
Department's Acting Chief Director: Corporate Services, addressed to Ms. JMA
Engelbrecht of the Office of The State Attorney in Bloemfontein (herein after
referred to as "Ms. Engelbrecht"), following the service of the papers in the main
application, she was instructed to oppose the application. A copy of this letter is
annexed hereto and marked "VR2".
28. Following the instruction given to Ms. Engelbrecht as set out above, a notice
of intention to oppose the application was delivered on 22 June 2023.
Regrettably, however, Ms. Engelbrecht did not take any steps to cause to be
prepared and served, a copy of the Department's answering affidavit in
opposition to the application served by SXB.
29. Following the expiration of the dies for the delivery of the Department's
answering affidavit, the matter was set down for default judgment on 28 July
2023. Subsequent to the grant of the default judgement , it would appear that on
13
31 August 2023, the State Attorney was provided with a copy of the order that
was granted by default against the Department, as it appears from a letter dated
LO October 2023, from SXB's attorneys. A copy of this letter is annexed hereto
and marked "VR3".
30. Ms. Engelbrecht has informed me that owing to:
30.1. the workload that she had to carry out at the office of the State
Attorney, which included having to attend over 450 files, she inadvertently
omitted to diarise the further steps that need to be attended to in respect of
the application. This was further exacerbated by the fact that at the time
she was responsible for managing two big matters that had many
complications;
30.2. the procedure to brief counsel that has been introduced by the
Solicitor-General for briefing counsel, requiring that the State Attorney
first send invitations to quote to a number of counsel, before a decision can
be made by a briefing committee of the State Attorney as to the suitability
of counsel to be appointed made it difficult for her to retain the services of
counsel, timeously; and
30.3. although the delivery of the court order at the offices of the State
Attorney was made as claimed on behalf of SXB, she has no recollection of
ever seeing it.
31. It was only on 15 November 2023, that the order relating to the default
judgment was brought to Ms. Engelbrecht's attention, following the
attachment of the Department's bank account consequent upon the
execution of the court order by SXB's attorneys . It was only then that
counsel was briefed on an urgent basis to assist the Department in lifting
the attachments to its bank account with a view to bringing this application.
32. I annex hereto Ms. Engelbrecht's confirmatory affidavit m which she
confirms what is set out above, as annexure "VR4".
33. Following the State Attorney having briefed counsel to prepare this
rescission application , I am advised that it will be filed by no later than Monday,
14
27 November 2023. lam advised further that the twenty days' time period to file
the application for rescission of the default judgment, regard being had to the
fact that the Department only became aware thereof on 11 October 2023, when
the notice of execution was brought to its attention by way of annexure "VR3"
hereto, was on 08 November 2023. Should the application be filed on 27
November 2023, it would be thirteen days out of time, at best for the
Department.
34. r submit that SXB will not suffer any prejudice due to the late filing of this
application for rescission. l pause to mention that on or about 16 November
2023, SXB's attorneys of record gave instructions to the sheriff to uplift the
warrant of execution on 17 November 2023, pending the delivery of this
application for the rescission of the default judgment. (Accentuation added)
26. Notwithstanding the above; the late filing of the rescission application and the
fact that the respondent filed a notice to oppose on 4 December 2023 as well as
an answering affidavit on 10 January 2024 with service on the State Attorney;
the MEC for The Department of Human Settlements and their legal
representative again just disappeared from the litigation.
27. To add insult to injury, the respondent in their answering affidavit to the
application for rescission pointed the court to a blatant misrepresentation by the
applicant and their legal representative. Both the Office of the MEC and the
legal representative received notice of the 3 August 2024 -court order on 10
August 2023.
2.20 AD PARAGRAPH 29:
(i) The contents of this paragraph is denied.
(ii) On the 10th of August 2023 and by e-mail, my attorney ofrecord
addressed an e-mail to Me Engelbrecht, attaching the Court order
and also made reference to Section 3(a)(i) of the State Liability
Act, Act 20 of 1957. A copy of this e-mail is attached hereto and
marked as annexure "AA4".
15
(iii) Apparent from annexure "AA4" is that Me Engelbrecht reacted
to the said e-mail on the 11th of August 2023, acknowledging
receipt of the Court order. She also indicated that she awaited
instructions from the client.
(iv) By indicating that she was awaiting instructions from the client,
it implicates that the Department was by the 11th of August 2023
already aware of the Court order.
2.21 AD PARAGRAPHS 30 TO 33:
(i) The contents of these paragraphs are denied.
(ii) With reference to annexure "AA4", the Department was already
aware of the Court order since the 11th of August 2023.
(iii) I also attach hereto a copy ofWhatsApp messages sent by SXB's
attorney of record and answers by Me Engelbrecht on the 18th of
September 2023. A copy of these WhatsApp messages are (sic)
attached hereto and marked as annexure "AAS''.
(iv) Apparent from the WhatsApp messages , Me Engelbrecht
indicated that on 18 September 2023 the client (the Department)
gave orders to brief an advocate for the application for
rescission.
(v) It is therefore clear that the Department knew about the Court
order at the latest from the 18th of September 2023.
28. The respondent was forced to set the matter down for hearing on 9 February
2024. They did this with proper service on the Office of the State Attorney: Free
State. The Office of the State Attorney: Free State, with a total disregard of their
duty and responsibility to their client and the court, ignored this notice.
16
29. On the 13th of February 2024 the respondent served the index and the paginated
bundle on the Office of the State Attorney: Free State. The Office of the State
Attorney: Free State, with a total disregard of their duty and responsibility to
their client and the court, ignored this.
30. On 16 February 2024 the respondent served their heads of argument and practise
note on the Office of the State Attorney: Free State. The Office of the State
Attorney: Free State, with a total disregard of their duty and responsibility to
their client and the court, ignored this.
31. The court was informed, and it is admitted above, that when the legal
practitioner informed them of her mistakes after the first order they went as far
as to reimburse the Office of the MEC with the R9 451 205.55 to accommodate
them and give them a fair opportunity to section 34 of the Constitution of the
Republic of South Africa, 1996. It did not help.
32. The MEC and the Office of the State Attorney: Free State remained in gross
neglect of their duties, not only to the administration of justice and the rule of
law, but also the taxpayers that they serve and must serve with due diligence. "
CONCLUSION
[IO] The prejudice that the respondent suffered over the years at the hand of the applicant
that is a mighty organ of the State is clear. There are not many businesses that can
survive a shortfall of R9 451 205.55. Counsel for the respondent pointed out that the
responden t is desperate to rescue its business and that the applicant is digging them into
ruin with their conduct.
[ 11] This court will not be complicit in the erosion and destruction of the rule oflaw and the
administration of justice by the unacceptable conduct of a party or parties. Courts and
the administration of justice may not be held hostage by the circumstances that prevail
in the Office of the State Attorney: Free State. There was not an application before me
for a costs order de bonis propriis. l decided not to order such but to refer the matter to
the Legal Practise Council: Free State for an inquiry into the conduct of the legal
practitioner. '
17
[12] In conclusion, the court would have failed the administration of justice if
it abided by the demands of the applicant and it will do so if the application for
leave to appeal is granted. If cases are allowed to be litigated in this manner the
rule of law will be eroded and litigatory anarchy will persist. The application must
be dismissed with costs and on a punitive basis.
Order
[13] In the result, the following order is made:
The application for leave to appeal is dismissed with costs and on an attorney and
client scale.
Appearances
Applicant:
Respondent: R.T. Williams SC
Cape Town
JMA Engelbrecht
Office of the State Attorney:
Free State, Bloemfontein
P du P Grey ling
Bloemfontein
Marius van Zyl Inc.
Bloemfontein 18