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IN THE HIGH COURT OF SOUTH AFRICA
(NORTHERN CAPE DMSION, KIMBERLEY)
Case no: 1496/2019
In the matter between:
BASE MAJOR CONSTRUCTION (PTY) LTD Applicant
and
THE DEPARTMENT OF ROADS AND PUBLIC
WORKS, NORTHERN CAPE PROVINCE First Respondent
IBE MEC, THE DEPARTMENT OF ROADS
AND PUBLIC WORKS, NORTHERN CAPE Second Respondent
Coram: MAMOSEBOJ
Heard: 11/09/2025 (virtually).
Delivered: 31/10/2025.
Summary: Application for leave to appeal - Reliance on s 17(1 )(a )(i) and
(ii) of the Superior Courts Act 10 of 2013 - Whether the envisaged appeal
YE S/ NO
YES / NO
YE S I NO
YES / NO
2
has reasonable prospects of success or there are compelling reasons for the
appeal to be heard.
ORDER
1. The application for leave to appeal is dismissed with costs.
JUDGMENT: APPLICATION FOR LEAVE TO APPEAL
Mamosebo ADJP
[ 1] This is an opposed application for leave to appeal to the Full Court
of the Northern Cape Division, alternatively to the Supreme Court
of Appeal, against the whole of my order and judgment handed
down on 25 April 2025. The applicant relies on section 17(1)(aXi)
and (ii) of the Superior Courts Act, 1 that its appeal would have
reasonable prospects of success and that there are compelling
reasons for the appeal to be heard.
[2] It is trite that leave to appeal may only be given where the judge or
judges concerned are of the opinion that, (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.2 Thus,
even if the court is not satisfied that there are reasonable prospects
of success, it is nonetheless enjoined to enquire whether a
I 10 of 2013.
2 Section l 7(1)(a) oftbe Superior Courts Act IO of 2013 .
3
compelling reason exists for the appeal to be entertained. A
compelling reason includes an important question of law or a
discrete issue of public importance that will have an effect on future
disputes.3 The operative word in the former provision is "would"
which demands a measure of certainty that another court will differ
from the court whose judgment is sought to be appealed against. 4
[3] It has been held that the test of reasonable prospects 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. In other words, the applicant in
this matter needs to convince this Court on proper grounds that it
has prospects of success on appeal. Those prospects of success
must not be remote, but there must exist a reasonable chance of
succeeding. Thus, a sound rational basis for the conclusion that
there are prospects of success must be shown to exist. 5
[4] Mr Glendinning, for the applicant, submitted that there exist
compelling legal issues within the construction industry with wide
implications on the enforcement of penalty clauses relating to
reciprocal obligations in the performance of construction contracts.
He urged the Court to consider that as a compelling factor justifying
the granting of leave to appeal. Counsel further urged that I should
not only visit the Google site, but also take judicial notice that
public institutions default in the payment of contractors, thereby
leading to their bankruptcy. It is trite that each case depends on its
3 Caratco (Pty) Ltd v Independent Advisory (Pty) Ltd 2020 (5) SA 35 (SCA) para 2.
4 Mont Chevaux Trust v Goosen and Others (LCC 14R/2014) (2014] ZALCC 20 (03 November 2014);
2014 JDR 2325 (LCC) para 6.
5 Ramakatsa and Others v African National Congress and Another (724/2019) (2021) ZASCA 31 (31
March 2021) para IO.
4
own merits. It has been held that in applications for leave to appeal,
the merits remain vitally important and are often decisive.6 The
approach I took did not tum on the construction industry as a whole
but on this particular contract.
[ 5] The applicant contends that reasonable prospects for a successful
appeal exist in that I erred in both fact and law in:
5.1 failing to properly consider that the first respondent was
precluded from levying penalties against the applicant for
the periods during which it (the first respondent) was in
material breach of its obligations under the Joint Building
Contracts Committee (JBCC) Agreement, namely, paying
the applicant the amounts due and payable to it;
5.2 failing to order that the applicant had lawfully terminated
the JBCC Agreement (the termination declarator) by
accepting the first respondent's repudiation and election to
terminate the JBCC Agreement;
5.3 failing to order the first respondent to instruct its principal
agent to issue a further interim payment certificate in terms
of sub-clause 38.5.7 of the JBCC Agreement, reversing all
penalty amounts levied against the applicant when the first
respondent was in breach of its payment obligations;
6 Minister of Justice and Constitutional Development and Others v Southern Africa Litigation Centre
and Others 2016 (3) SA 317 (SCA) para 24.
5
5.4 failing to conduct a court's duty of proper consideration as
espoused by the Constitutional Court (ConCourt) 1n
Vodacom (Pty) Ltd v Makate and Another7; and
5.5 impermissibly disregarding two Supreme Court of Appeal
(SCA) judgments of Group Five Building Ltd v Minister of
Community Development8 ("Group Five"); and Du Preez v
Tornel Props (Pty) Ltcf> ("Du Preez ") in respect of the
reciprocity principle.
[6] The applicant's reliance and contention that I impermissibly
ignored precedent set by the SCA judgments of Group Five and Du
Preez is misplaced. The contracts are different, and the parties'
conduct in implementing the terms of those contracts is crucial in
the adjudication of the matters. In Group Five, it is captured in this
fashion:
'The contract was thus not for a lump sum but was based on a priced schedule
of quantities. The ultimate contract amount would only be ascertainable once
all the executed work had been finally measured and valued at the prices and
rates in the schedule of quantities. Th e contract was thus of a kind that has
been described as a "rate and measurement contract". •10
Of more significance is what the SCA pronounced pertaining to the
extension of time; a consideration the applicant in casu completely
ignored:
7 (CCT 5 l/24) (2025] ZACC 13; 2025 (10) B CL R 1174 (CC) (31 July 2025).
8 (1993] 4 All SA 678 (AD).
9 (2016] JOL 34123 (SCA) (29 September 2015).
10 Supra fn 8 at 678.
6
'It was held by the trial Court and confirmed on appeal that the employer's
default excused the contractor's delay and that the contractor could not be
faulted for failing to apply for an extension of time within which to complete
the contract.' 11
[7] In casu, the duration of the contract was 14 months. The applicant
was 200% behind schedule. An Addendum was concluded putting
the applicant on terms. When parties agree that a contract is to be
implemented by a fixed date, conduct by the employer which is
authorised by the contract, in this instance, the Addendum, must be
afforded due weight to promote the completion of the contract. The
submission by Mr Glendinning that both parties were in breach of
the contract is unconvincing. The terms of the Addendum are
unambiguous. The applicant's reliance on the late payment or non
payment of one issued certificate as justification for its failure to
complete the contract timeously is devoid of merit.
[8] In Du Preez, the SCA reiterated that repudiation is objective and
not subjectively determined. The test as to whether conduct
amounts to repudiation of a contract is whether, fairly interpreted,
it exhibits a deliberate and unequivocal intention to no longer be
bound by the terms of the contract.12
[9] Building works in Du Preez continued despite the non-payments,
it was argued that the house was at 70% completion by the time the
contractor ceased building works. The Court there held that:
'Simply put the failure to comply with the terms and conditions of the contract
by the defendant in not making progress payments as agreed, entitled the
11 Ibid at 685.
12 Supra fu 9 para 17.
7
plaintiff to withhold its reciprocal obligation to continue building the house.
The defendant's objectively unjustifiable conduct in treating this as a
repudiation of the agreement and purporting to cancel the agreement,
objectively assessed amounted to a repudiation which the plaintiff accepted
and justifiably cancelled the agreement.' 13
In casu, the facts are distinguishable. Had the applicant been of the
strong view that the alleged non-payment or late payment
precluded it from completing the construction, it could have
cancelled the contract and claimed damages due to the breach.
How ever, unlike in Du Preez, the applicant did not cancel the
contract and claim damages, it acquiesced in the concluded
Addendum and its terms. The applicant's reliance on Du Preez is
misplaced.
[10] A s far as the grounds set out in paras 4.1 - 4.3 are concerned, the
aspects raised are fully covered in my judgment in paragraphs 9, 11
- 15, 18 - 21, and 24 - 27. The contention raised by the applicant
is therefore without substance.
[ 11] Mr Snellenburg SC, for the respondents, submitted that the
applicant had moved from an incorrect premise when it alleged that
it had progressed with the works in terms of the agreement. The
contract was never performed in its agreed terms. That gave rise to
concluding the Addendum, which not only put the applicant on
terms in terms of performance milestories, but also allowed the
respondent to cancel the agreement should the milestones not be
reached. These rem arks by the SCA in Group Five are apposite:
13 Ibid para 18.
8
'The plaintiff chose not to apply for an extension of time on those grounds. It
now seeks to justify that omission by contending that it could not have done
so since the defendant committed various breaches of contract which
prevented the plaintiff from completing the contract by the agreed date.' 14
The applicant opted for motion proceedings and cannot, at this
stage, blame the Court if the facts in the matter and contentious
issues were not fully ventilated.
[ 12] The applicant also claims that the Court failed to conduct its duty
of proper consideration as espoused by the ConCourt in Vodacom
(Pty) Ltd v Makate and Another. In that regard, I wish to refer to
the following instructive remarks15:
'Justice and, indeed, the court process are not about perfection; courts are not
to be held "to some abstract standard of perfection".'
'Of critical importance is that "there is no duty on a judge in giving ... reasons
to deal with every argument presented by counsel in support of [their] case". I
say of "critical importance" because some litigants may find this statement of
the law attractive for nitpickingly arguing that a court's judgment failed to deal
with this or that point and that, therefore, there was a breach of the right to a
fair hearing. Let them be warned that they will not succeed. That is not what
this statement of the law is about. It is about the substance of a judgment
viewed holistically. So viewed, does the judgment tell a reasonable, if not
discerning, reader that there was compliance with the duty of proper
consideration? In that regard, it is enough if the judgment identifies the issues
that were vital to the determination of the matter and then shows how they
were determined. One or two issues may not necessarily be critical for that
holistic look at the substance of the judgment.'
14 Supra fu 8 at 687.
15 2025 (10) BCLR 1174 (CC) para 43 and 57.
9
[13] That said, I have carefully considered the Notice of Application for
leave to appeal and the grounds listed therein where the applicant
contends that another court would find the existence of prospects
of success and compelling reasons for the appeal to be heard. I have
also considered both the written and oral submissions by counsel. 1
am unpersuaded by the applicant's submissions. There are, in my
view, no cognisable prospects of success on appeal nor any
compelling reason( s) why the appeal should be heard or warrant
the attention of the Full Court of this Division or the Supreme Court
of Appeal. In the result, the application for leave to appeal must
fail. There is no reason why costs should not follow the result.
ORDER:
1. The application for leave to appeal is dismissed with costs.
Appearances
For the applicant:
Instructed by:
For the respondents:
Instructed by:
MAMOSEBOJ
JUDGE OF THE IIlGH COURT
NORTHERN CAPE DIVISION
Adv A Glendinning
E Taylor Attorneys
c/o Haarhoffs Inc
Adv N Snellenburg SC
Peyper Attorneys
Duncan & Rothman Attorneys