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REPUBLI C OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
LIMPOPO LOCAL DIVISION, THOHOY AN DOU
(1) REPORTABLE: ~ /NO
(2) OF INTEREST TO THE JUDGES: 'te!'NO
(3) REVISED.
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~ 1GNATURE ....... .
In the matter between:
THIKHO CONSUL TING ENGINEERS
NEVHUTALU CONSULTING ENGINE
ERSJV
THI KHO CONSUL TING ENGINEERS
(Registration 2008/071927 /23)
NEVHUTALU CONSULTING ENGINEERS
(Registration 2002/080812/23)
and
UNIVERSITY OF VENDA
ABDUL MAJEED HABIB ABDOOL CARRIM
JUDGMENT
CASE NO. HCA01/2025
FIRST APPELLANT
SECOND APPELLANT
THIRD APPELLANT
FIRST RESPONDENT
SECOND RESPONDENT
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Heard on: 08 August 2025
Delivered: this judgment was handed down electronically by circulation to the
parties' legal representatives by email and release on SAFLII. The date and
time for hand-down is deemed to be at 14:00 on 10 February 2026.
SEMENYA DJP
[1] This appeal is against the judgment and order of Khosa AJ in which the
application for the stay of the review proceedings instituted by the first
respondent, University of Venda (the University) and for the removal of
the second respondent from the office of the arbitrator of the dispute that
arose between the appellants and the University, was dismissed. The
appeal is with leave of the Court below.
[2] The common cause or otherwise undisputed facts in this case are that
on the 27 November 2012, the appellants and the University entered
into a Consultant Professional Service Agreement in terms of which the
appellants were to provide civil and structural services to the University.
The initial period of the agreement was for three (3) years, with the
commencement date of 1 October 2012.
[3] In terms of the agreement, the contract period may be extended for a
period not exceeding 30% of the time that the contract was originally
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awarded for with the approval of the Vice Chancellor or his or her
delegate. It is not in dispute that the contract was extended from time to
time. The University has instituted a legality review of its own decision to
extend the contract. The application is still pending in this court.
[4] Clause 19 of the agreement provides that, should any dispute
whatsoever arise between the parties, then either of the parties to the
agreement may declare a dispute by delivering notice of the details
thereof to the other party, which dispute shall be referred to arbitration.
The contract is silent about which rules will be applicable should the
need for arbitration arise.
[5] On or about the 12 March 2021, the appellants sought to invoke the
provisions of clause 19 of the contract in view of the disagreements that
ensued between the parties. A dispute was declared and same was
referred to be dealt with by way of arbitration. The parties did not agree
on the arbitrator and the second respondent was provided by the Legal
Practice Council. Arbitration proceedings commenced during June
2021 . The appellant filed their statement of claim . The University in turn
filed its statement of defence. The arbitration proceedings were still
pending at the time of the institution of these proceedings. The
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appellants are dissatisfied with the manner in which the second
respondent is handling the arbitration and seeks the relief in the form of
the setting aside of his appointment.
[6] During January 2022, the University instituted review proceeding in
which it seeks the review and the setting aside of the agreement,
together with certain ancillary orders. The appellants have filed their
answering affidavit. The University has filed its replying affidavit together
with its heads of argument. The University contends that the appellants'
heads of argument, list of authorities and practice note are the only
documents that are outstanding and that precludes the University from
applying for a hearing date.
[7] Instead of complying with the University's request for the filing of
outstanding documents, the appellants launched the application for the
stay of the review application and the withdrawal of the appointment of
the second respondent as the arbitrator in terms of the Arbitration Act 42
of 1965. The application came before Khosa AJ, who dismissed both
prayers in a judgment dated the 26 March 2024. Khosa AJ granted
leave to appeal the judgment and order on the 6 December 2024.
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(8] The appeal has since lapsed on account of the appellant's failure to
comply with the time frames as set out rule 49(7). It is for this reason
that the appeal before us is accompanied by an application for
condonation for the late prosecution of the appeal and for its
reinstatement. The application for condonation is opposed only by the
University. On the hearing date, the parties were directed to argue the
condonation application together with the merits of the appeal.
[9] In support of its application for condonation, the appellants relied on the
judgments in Van Wyk v Unitas Hospital and Another1 (Unitas
Hospital) and United Plant Hire v Hi11s2 (United Plant Hire). In Unitas
Hospital the Constitutional Court held that an applicant for condonation
must give a full explanation for the delay, which must cover the entire
period. In addition, the explanation furnished must be reasonable. It
further stated that the standard for considering an application for
condonation is the interests of justice which depends on the facts and
circumstances of each case. The extent and cause of the delay, the
effect of the delay on the administration of justice and other litigants, the
reasonableness of the explanation for the delay, the importance of the
issue to be raised in the intended appeal are some of the factors which
1 2008 (2) SA 472 (CC) at [22]
2 1976 ( I) SA 717 (AD) at 720E-G
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according to the Constitutional Court the court should consider in an
application of this nature.
[10) In United Plant Hire the Court held that:
"It is well settled that, in considering applications for condonation, the Court has a
discretion, to be exercised judicially upon a consideration of all of the facts; and that
in essence it is a question of fairness to both sides. In this enquiry, relevant
considerations may include the degree of non-compliance with the Rules, the
explanation therefore, the prospects of success on appeal, the importance of the
case, the respondent's interest in the finality of his judgment, the convenience of the
Court and the avoidance of unnecessary delay in the administration of justice."
[11] Leave to appeal in this case was granted on the 6 December 2024.
Notice of appeal was delivered to the relevant parties on the 8 January
2025, which is within the 20 days as provided for in rule 49(2). In terms
of rule 49(6)(a), the appellants were required to apply for the date of the
hearing of the appeal within sixty days of the delivery of the notice of
appeal. The sixty days in this case expired on the 10 April 2025. The
appellants, however, applied for the date after 30 April 2025.
[12] The explanation for the delay furnished by the appellants is indeed
detailed and covers the entire period for the delay. The explanation, in
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short, is that the delay was occasioned by the transcription and
preparation of the appeal record by the transcribers. They explained that
the entire process commenced on the 7 February 2025 and completed
on the 30 April 2025.
[13] The record of appeal comprises of 767 pages. It includes, among others,
all affidavits and annexures thereto which were filed in the review
application and the statement of claim and of defence in the arbitration
proceedings. The University contends, correctly so in my view, that the
papers which are relevant for the purposes of this appeal are (i) the
founding affidavit in the application for stay of the proceedings and the
annexures thereto, (ii) the answering affidavit and its annexures, (iii) the
replying affidavit and its annexures, (iv) the judgment of the Court below
and, (v) the judgment in the leave to appeal. The University submits that
the required documents were in their possession at all material times
and that there was no need to involve the transcribers. In addition, the
University argues that the binding of the record could have been done
by the appellants' attorneys in a day. The University argued further that
the appellants failed to explain why they had decided to involve
transcribers in the first place and to include unnecessary documents in
the appeal record.
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[14] The appellants contend that none of the respondents have applied for a
declaration that the appeal has lapsed and that there is no court order to
that effect. Counsel for the appellants submit that condonation should be
granted on that basis. This argument is without merit. In terms of rule
49(6)(a), the appeal is deemed to have lapsed. There is no rule that
compels the respondents to apply for a declaratory order to that effect.
[15] In Palmer v Goldberg3 it was held that condonation will more readily be
granted where there is some deficiency or irregularity in the noting or
prosecution of the appeal than if no steps were taken. However, in the
present case, it was not necessary . to involve the transcribers in
something that the appellants' attorneys could have done. All he had to
do was to simply bind, index and paginate the affidavits and all other
relevant documents which were already in his possession. The costs of
engaging transcribers could have been avoided.
[16] I agree with counsel for the first respondent's contention that although a
period shorter than a month may appear not to be substantial, this fact
alone should not be allowed to overshadow the inadequacy of the
3 1961 (3) SA 692 (N)
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explanation offered by the appellants. As stated above, the Court still
has to consider other factors relevant to this enquiry.
[17] On the nature of the relief sought in the appeal, the appellants are
relying on section 6 of the Arbitration Act 42 of 1965 in their application
for stay of the review proceedings. This section provides that if any party
to an arbitration agreement commences any legal proceedings in any
court against any other party to the agreement in respect of any matter
agreed to be referred for arbitration, any party to such legal proceedings
may at any time after entering appearance but before delivering any
pleadings or taking any other steps in the proceedings, apply to court for
a stay of the such proceedings. The court may make an order staying
the proceedings if there is no reason why the matter should not be
referred for arbitration.
[18] As stated elsewhere above, it is common cause that the appellants had
already filed further papers or taken further steps at the time of the
application for stay of the review proceedings. The court below was
correct in its findings in that regard. A condition which precludes the
application for stay of the proceedings has therefore materialized.
[19] Section 38 of the Arbitration Act provides for the extension of any period
of time prescribed in the Act. All the applicant has to do is to show good
cause for the extension. In Bank of Southern Africa Limited v Proline
Trading 60 (Pty) Ltd4 the Court held that:
"[26] It was argued on behalf of the respondent that this section cannot
assist the applicant as the period mentioned in section 6(1) is not a fixed
period . In my view, section 38, would be applicable. The period mentioned is
a "fixed period " i.e. between the date of a notice of appearance but before the
delivery of any pleading or a further step in the proceedings. The cut-off time
has been determined and with reference to the date of the notice of
appearance the time period can be established. The date is not fixed in the
sense of stipulating days or weeks but rather by way of providing the starting
and ending dates within which an application for stay could be launched. This
period can be determined with precision and would fall within the ambit of a
fixed period as contemplated in section 38 of the Arbitration Act."
[20) The Constitutional Court in Crompton Street Motors CC v Bright Idea
Projects 66 Pty Ltd5 held that:
" As a matter of fact, the applicant did not apply for a stay before delivering its
pleadings, and, therefore, the High Court was correct to find that it did not
comply with the provisions of section 6(1) of the Arbitration Act. The
incorporation of the application for a stay in the applicant's conditional
4 (30282/2020) [2022) ZAGPJHC 639 (5 September 2022) at [26)
5 2022 (I) SA (3 17) (CC) at [32)
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counter-application and answering affidavit was a step beyond entering an
appearance, and therefore one of the prerequisites for a stay in terms of
section 6(1) was absent. However, non-compliance with section 6(1) does
not render the request for a stay invalid. There are two avenues to apply for a
stay of proceedings: a substantive application in terms of section 6 of the
Arbitration Act may be made, or a special plea requesting a stay of the
proceedings pending the determination of the dispute by arbitration."
[21] In my view, Crompton lends support to the University's contention that
section 6 does not fix a period within which stay proceedings should be
initiated. The taking of a further step is an eventuality and once taken
the party to an arbitration clause cannot apply for it unless it has raised it
in a special plea of its answering affidavit. The appellants failed to raise
it in their answering affidavit in the review application. I therefore
respectfully differ with the views expressed in Proline Trading case,
above that section 38 is applicable in this case.
[22] It follows that the nature of the relief sought in the appeal calls for the
dismissal of the application for condonation. The appellants cannot rely
on section 6 of the Arbitration Act for the reasons stated above.
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[23) On the effect of the delay on the administration of justice, the University,
as an organ of state, seeks review and setting aside of its own decision.
In State Information Technology Agency SOC Limited v Gijima
Holdings (PTY) Ltd6 the court held that:
"[39] Pharmaceutical Manufacturers tells us that the principle of legality is
"an incident of the rule of law", a founding value of our Constitution. In
Affordable Medicines Trust the principle of legality was referred to as a
constitutional control of the exercise of public power. Ngcobo J put it thus:
"The exercise of public power must therefore comply with the
Constitution, which is the supreme law, and the doctrine of
legality, which is part of that law. The doctrine of legality, which
is an incident of the rule of law, is one of the constitutional
controls through which the exercise of public power is regulated
by the Constitution."
[40] What we glean from this is that the exercise of public power which is at
variance with the principle of legality is inconsistent with the Constitution itself.
In short, it is invalid. That is a consequence of what section 2 of the
Constitution stipulates. Relating all this to the matter before us, the award of
the DoD agreement was an exercise of public power. The principle of legality
may thus be a vehicle for its review. The question is: did the award conform
to legal prescripts? If it did, that is the end of the matter. If it did not, it may
be reviewed and possibly set aside under legality review."
6 2018(2) SA 23 CC ( 14 November 20 17) at [39) to [ 40]
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[24] It follows from Gijima and all other cases referred to in that case, that it
is in the interests of justice that the legality of agreements entered with
organs of state be determined before any of the parties may seek to
enforce the rights that emanates from such agreements. In addition to
what has been said regarding section 6, the interests of the
administration of justice dictates that the application for condonation
should be dismissed. The issues raised in the review application are, in
my view, more important than those raised in the intended appeal.
[25] The interests of justice in this case dictates that the application for
condonation for the late prosecution of the appeal should fail. The
explanation for the delay is, in itself, unreasonable. Furthermore, the
condonation will not be in the interests of justice. It is in the interests of
justice that the legality of the agreements be determined in the review
application. Should the court in the review application find in favour of
the appellants in this matter, the appellants will have the opportunity to
enforce the agreement according to its terms, including referral of the
dispute for arbitration. As Cameron JA stated in North West Provincial
Government & Another v Tswaing Consulting & Others7, arbitration
clause embedded in a fraud-tainted agreement could not stand.
[26] The application for condonation of the late prosecution of the appeal and
the reinstatement of the appeal stands to fail. On the issue of costs, the
general rule is that a successful party is entitled to costs. I find no
compelling reasons to find otherwise.
[27] In the result I make the following order:
7 2007 (4) SA 452 (SCA)
I agree.
I agree.
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i. The application for condonation is dismissed ;
ii. the appeal is dismissed ; and
iii. The appellants are ordered to pay the costs of the application .
-- ,I
,..SEME~A
DEPUTY JUDGE P~ESIDENT
LIMPOfO DIVISION
(
" .._____ HA TU DI
.. "\ JUDGE OF THE HIGH COURT
L[MPOPQ LOCAL DIVISION, THOHOYANDOU
TC TSHIDADA
JUDGE OF THE HIGH COURT
LIMPOPO LOCAL DIVISION, THOHOY AN DOU
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APPEARANCES
For the Appellants: Adv P Tshavhungwe with Adv P Bvumbi
Instructed by: Matsheka Attorneys Inc.
c/o Sigogo Attorneys Inc.
; :\
For the 1 st Respondent: Adv NM Majopelo with Mr MR Maphutha
Instructed by: Madima Attorneys