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[2019] ZASCA 164
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Mabotwane Security Services CC v Pikitup Soc (Pty) Ltd and Others (1027/2018) [2019] ZASCA 164 (29 November 2019)
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THE SUPREME COURT OF
APPEAL OF SOUTH AFRICA JUDGMENT
Reportable
Case
No: 1027/2018
In
the matter between
MABOTWANE
SECURITY SERVICES
CC
APPELLANT
and
PIKITUP
SOC (PTY)
LTD
FIRST RESPONDENT
SIDAS
SECURITY GUARDS (PTY) LTD
SECOND RESPONDENT
FIDELITY
SECURITY GUARDS (PTY) LTD
THIRD RESPONDENT
IMVULA
QUALITY PROTECTION (PTY) LTD
FOURTH RESPONDENT
Neutral
citation:
Mabotwane Security Services CC v Pikitup Soc (Pty)
Ltd & others
(1027/2018)
[2019] ZASCA 164
(29 November 2019)
Coram:
Leach, Saldulker, Swain, Mokgohloa and Dlodlo JJA
Heard
:
18 November 2019
Delivered:
29 November 2019
Summary:
Superior Courts Act 10 of 2013
–
s 16(2)
(a)
(i) –
relief sought on appeal having no practical effect or result –
appeal moot – failure of duty by legal representatives
of
appellant – appeal dismissed with costs.
ORDER
On
appeal from:
Gauteng Division of the High Court, Pretoria
(Carelse J sitting as court of first instance):
The
appeal is dismissed in terms of
s 16(2)
(a)
(i) of the
Superior
Courts Act 10 of 2013
, with costs, such costs to include the costs of
two counsel.
JUDGMENT
Swain
JA (Leach, Saldulker, Mokgohloa and Dlodlo JJA concurring):
[1]
At the hearing of the appeal, counsel were directed to present
argument on the preliminary question of whether a decision in
the
appeal would have no practical effect or result, within the meaning
of s 16(2)
(a)
(i) of the Superior Courts Act 10 of 2013 (the
Act). Having considered the submissions of counsel, the appeal was
dismissed with
costs, such costs to include the costs of two counsel,
with reasons to follow. These are the reasons.
[2]
The conclusion that the issues in the appeal are moot, is based upon
uncontroversial facts, which it is necessary to briefly
set out. The
first respondent, Pikitup Soc (Pty) Ltd is a company with limited
liability, owned by the City of Johannesburg (the
City), which
qualifies it as a ‘municipal entity’ as defined in
s 1
of
the
Local Government: Municipal Systems Act 32 of 2000
. The first
respondent’s mandate is to provide sustainable integrated waste
management to the City. It is therefore obliged
in terms of s 217(1)
of the Constitution to contract for goods or services in accordance
with a system which is fair, equitable,
transparent, competitive and
cost-effective.
[3]
The appellant, Mabotwane Security Services CC, had been providing
security services to the first respondent in terms of a fixed
term
contract that was due to expire on 30 November 2015. On 5 July 2015,
in order to ensure that the security services it required
were not
interrupted by the expiration of the contract with the appellant, the
first respondent embarked upon a tender process
(the first tender).
Interested bidders were invited to submit proposals for the
appointment of a service provider, to provide physical
security for
the first respondent for a period of 36 months. The budget approved
by the finance department of the first respondent
for the tender, was
an amount of R78 674 000, exclusive of VAT. A total of 68 bids were
received, including bids from the appellant,
the third respondent,
Fidelity Security Guards (Pty) Ltd, and the fourth respondent, Imvula
Quality Protection (Pty) Ltd. The bids
were then referred to the Bid
Evaluation Committee (BEC) of the first respondent, which ultimately
identified the appellant, together
with the third and fourth
respondents, as the leading contenders for the award of the tender.
[4]
In order to ensure that the process of the BEC was compliant with the
relevant legal requirements, an auditing firm was appointed
to check
for compliance. On 24 September 2015 the audited findings revealed a
number of significant errors in the evaluation process,
the merits of
which are not relevant to the present enquiry. These findings were
then considered by the BEC which forwarded its
report to the Bid
Adjudication Committee (BAC) of the first respondent. After
considering the recommendations of the BEC, the BAC
recommended to
the managing director of the first respondent that the bid be
cancelled, principally on the ground that the budget
of R78 674 000
was insufficient, as the lowest bid, being that of the appellant, was
for an amount of R110 171 366,18. It therefore
recommended that the
tender be re-issued with an available budget of R78 000 000, VAT
exclusive, and R88 920 000, VAT inclusive.
[5]
Because the first respondent required security services at all times
and the contract with the appellant was due to expire on
30 November
2015, the BAC also recommended that the tender be re-advertised for a
shorter period of 14 days in accordance with
regulation 22.2 of the
Local Government: Municipal Finance Management Act 56 of 2003 (the
MFMA). This regulation authorises the
advertisement of bids above R10
000 000 for a period of less than 30 days, where there is an urgent
need to award a tender. These
recommendations were accepted by the
managing director of the first respondent. The first tender was
cancelled and on 25 October
2015, a new tender (the second tender)
was issued and advertised, containing the following provision: ‘Scope
of contract
must be reduced to come within the budget of R78
million’.
[6]
The response of the appellant to the cancellation of the first tender
and the issue and advertisement of the second tender,
was to launch
review proceedings in the Gauteng Division of the High Court,
Pretoria (the first review application) on 4 November
2015. The
primary relief sought was an interdict restraining the first
respondent from making an award in terms of the second tender,
pending the outcome of an application to review and set aside the
tender process in terms of the first tender, as well as the decision
to cancel the first tender process. Further orders were sought,
referring the first tender back to the first respondent for
reconsideration
and interdicting the first respondent from appointing
any security service provider through any procurement process, other
than
extending existing contracts (such as the contract between the
appellant and the first respondent), pending the outcome of the
review proceedings in respect of the first tender.
[7]
The appellant in its founding affidavit in the first review
application had stated that after the second tender was advertised,
the appellant’s attorneys requested an undertaking from the
first respondent that no award would be made under the second
tender,
before the appellant had been furnished with the documents relevant
to the cancellation of the first tender. The appellant
maintained
that it required this documentation in order to decide whether to
review the decision to cancel the first tender. The
documentation was
not supplied by the first respondent but on 2 November 2015,
according to the founding affidavit of Mr Malatji,
the Executive
Director Operations of the appellant, he mysteriously received an
envelope from the security guard on duty at the
appellant’s
offices, containing some of the documents that had been requested.
The security guard was unable to say who had
delivered the envelope
which contained the confidential reports of the BEC and the BAC, as
well as the confidential audit report
in respect of the first tender.
According to the appellant, these documents revealed that the
appellant was the preferred bidder,
until the audit report indicated
that certain ‘discrepancies’ occurred in the evaluation
process of the bids. The appellant
maintained that there was no merit
in these findings. Again, whether this was so, is not relevant to the
present enquiry.
[8]
The response of the first respondent to the revelation that the
appellant had gained access to confidential documents, was one
of
dismay. The first respondent maintained that it was the task of the
appellant, as the incumbent security service provider on
its
premises, to ensure that this documentation which contained sensitive
information in regard to the appellant’s competitors,
was not
made public. This breach of the first respondent’s security
resulted in the first respondent cancelling the second
tender
process. This was because the first respondent maintained that the
confidentiality of the first tender process had been
severely
compromised, it was not certain of the extent of the breach of its
security or confidentiality, and it was not assured
of the integrity
of the second tender process.
[9]
Because the first and second tenders had been cancelled by the first
respondent and the contract with the appellant was due
to expire on
30 November 2015, the first respondent faced the prospect of not
having a security provider. The first respondent
therefore considered
alternative procurement processes, within the ambit of the governing
legal framework, in order to appoint
a security service provider on
an expedited basis. The first respondent stated that a suitable
security provider could not be appointed
on a long-term basis because
of the pending review application and that neither the appellant, nor
the third and fourth respondents
could be appointed because in the
event of the review application being successful, it wished to avoid
any perception that an unfair
advantage had been afforded to a
competing entity by virtue of its presence at the first respondent’s
premises.
[10]
The first respondent therefore decided to appoint the second
respondent, Sidas Security Guards (Pty) Ltd, on an interim basis
pending the resolution of the first review application, in terms of a
short-term contract, which was concluded on 27 November 2015.
The
second respondent was appointed to render security services to the
first respondent for a twelve-month period commencing on
1 December
2015. The first respondent, in its sole discretion, was entitled to
extend the agreement for second and third twelve-month
periods and to
cancel the agreement, for any reason, on ten days’ notice.
[11]
The response of the appellant to the appointment of the second
respondent to render security services to the first respondent,
was
to launch a further review application on 10 February 2016 (the
second review application). Orders were sought reviewing and
setting
aside the appointment of the second respondent and declaring that any
contract entered into between the first and second
respondents was
invalid and unenforceable ab initio. The first and second review
applications were thereafter consolidated and
on 21 December 2017,
the court a quo (Carelse J), dismissed both applications with costs
on the scale as between attorney and client.
[12]
The court a quo found in the first review application, that the
cancellation by the first respondent of the first tender had
been
lawful, in terms of reg 8(4) of the Preferential Procurement Policy
Framework Act (5/2000): Preferential Procurement Regulations,
2011 GN
R502,
GG
34350, 8 June 2011. This regulation authorised the
first respondent to cancel a tender, where funds were no longer
available to
cover the total envisaged expenditure, or no acceptable
tenders were received. The first respondent did not have the
necessary
budget to perform its obligations in terms of the tender.
[13]
As regards the second review application, the court a quo found that
the appointment of the second respondent after the expiration
of the
contract with the appellant on 30 November 2015, was an emergency. It
held that reg 36 of the first respondent’s Supply
Chain
Management Regulations allowed the accounting officer to dispense
with the official procurement processes and to procure
any services
through any convenient process which may include direct negotiations
with a service provider, in an emergency situation.
The emergency was
created by the fact that the first respondent only had 14 days to
appoint a new service provider between the
cancellation of the first
tender on 16 October 2015 and the date when a new service provider
had to be appointed, namely, 1 December
2015. Leave to appeal to this
court was thereafter granted by the court a quo on 15 August 2018.
[14]
Against this factual background and for the reasons that follow, the
decision and the relief sought by the appellant, could
have no
practical effect or result. Orders were sought setting aside the
orders of the court a quo, dismissing the first and second
review
applications and their substitution with the following orders. In the
first review application, the first respondent was
to be ordered to
consider and adjudicate all qualifying bids in terms of the
evaluation methodology prescribed in the tender document,
within 30
days of the grant of the order. In the second review application, the
appointment of the second respondent as the security
provider to the
first respondent, was to be set aside. In addition, the first
respondent was to be ordered to pay the costs of
the application in
the court a quo, as well as the costs of the appeal, such costs to
include the costs of two counsel.
[15]
Section 16(2)
(a)
of the Act provides as follows:
‘
(i) When at the
hearing of an appeal the issues are of such a nature that the
decision sought will have no practical effect or result,
the appeal
may be dismissed on this ground alone.
(ii) Save under
exceptional circumstances, the question whether the decision would
have no practical effect or result is to be determined
without
reference to any consideration of costs.’ In
National
Coalition for Gay and Lesbian Equality & others v Minister of
Home Affairs
[1999] ZACC 17
;
2000 (2) SA 1
(CC) para 21 footnote
18, it was stated that:
‘
A case is moot and
therefore not justiciable if it no longer presents an existing or
live controversy which should exist if the
Court is to avoid giving
advisory opinions on abstract propositions of law.’
In
Centre for Child Law v Hoërskool Fochville & another
[2015] ZASCA 155
;
2016 (2) SA 121
(SCA) para 11, the manner in
which this discretion is to be exercised was described in the
following terms:
‘
This court has a
discretion in that regard and there are a number of cases where,
notwithstanding the mootness of the issue as between
the parties to
the litigation, it has dealt with the merits of an appeal. With those
cases must be contrasted a number where the
court has refused to
enter into the merits of the appeal. The broad distinction between
the two classes is that in the former a
discrete legal issue of
public importance arose that would affect matters in the future and
on which the adjudication of this court
was required, whilst in the
latter no such issue arose.’ (Authorities omitted.)
In
Minister of Justice & others v Estate Stransham-Ford
[2016]
ZASCA 197
;
2017 (3) SA 152
(SCA) para 22, the nature of the
discretion was described as follows:
‘
It is a
prerequisite for the exercise of the discretion that any order the
court may ultimately make will have some practical effect
either on
the parties or on others. Other factors that may be relevant will
include the nature and extent of the practical effect
that any
possible order might have, the importance of the issue, its
complexity and the fullness or otherwise of the argument.’
[16]
On 3 December 2018, the first respondent’s attorneys wrote to
the appellant’s attorneys, informing them that in
their view
the relief sought by the appellant in the notice of appeal had become
moot, for the following reasons:
(a) The first tender for
the provision of security services to the first respondent was for a
period of 36 months, commencing on
1 December 2015. This was the
basis on which the tenders were submitted and were to be adjudicated.
The period for which the security
services were to be provided
therefore expired at midnight on 30 November 2018. Accordingly, the
first tender could not be revisited,
re-adjudicated or awarded
whether on its original terms, or at all. The relief sought by the
appellant in respect of the first
tender, namely, that the first
respondent be ordered to consider and adjudicate all the original
qualifying bids in terms of the
evaluation methodology prescribed in
the original tender document, within 30 days of the granting of the
order, could no longer
be granted.
(b) The contract
concluded between the first and second respondents for security
services commenced on 1 December 2015 for an initial
period of 12
months, which could be renewed for two further periods of 12 months
each, at the election of the first respondent.
The first respondent
therefore submitted that the period of this contract had now, also
come and gone, but that in any event, it
would be an exercise in
futility to review and set it aside, once the review in respect of
the first tender could no longer be
granted.
(c) The first respondent
had in the interim, re-aligned its operations by insourcing security
services, with the result that it
no longer had any need for any of
the services that formed the subject matter of the first tender, or
the contract concluded with
the second respondent.
The
appellant was requested to reconsider its position and advise whether
it persisted with the appeal. In the event of the appellant
persisting with the appeal it was given notice that a copy of the
letter, together with any response thereto, would be placed before
this court together with a request for an appropriate costs order.
[17]
At the hearing of the appeal the appellant objected to the admission
of the contents of the letter as evidence. In terms of
s 19
(b)
of
the Act, this court has the power to receive further evidence on
appeal. In
Rail Commuters Action Group & others v Transnet Ltd
t/a Metrorail & others
2005 (2) SA 359
(CC);
2005 (4) BCLR
301
(CC);
[2004]
ZACC 20
para 43, the following was stated:
‘
The Court should
exercise the powers conferred by s 22 [of the Supreme Court Act 59 of
1959] “sparingly” and further
evidence on appeal (which
does not fall within the terms of Rule 31) should only be admitted in
exceptional circumstances. Such
evidence must be weighty, material
and to be believed. In addition, whether there is a reasonable
explanation for its late filing
is an important factor. The existence
of a substantial dispute of fact in relation to it will militate
against its being admitted.’
[18]
In
Moseme Road Construction CC & others v King Civil
Engineering Contractors (Pty) Ltd & another
2010 (4) SA 359
(SCA);
[2010] ZASCA 13
para 17, in response to an argument by the
appellant that the contract in question was now near completion and
that because of
the intervening facts, the order of the court below
should be set aside, the following was stated:
‘
There is a
conceptual problem with the submission. The issue on appeal is
whether the order granted by the court below was correct
at the time
it issued. Supervening events cannot affect the answer, although they
might conceivably affect enforceability on the
ground of supervening
impossibility.’
[19]
Although
Moseme
was not concerned with whether the appeal had
been rendered moot by supervening events, the possibility that
supervening events
might affect the enforceability of any order
granted on appeal, is relevant on the present facts. In any event, an
enquiry as to
whether issues on appeal have become moot, invariably
requires a consideration of supervening events. The gravamen of the
appellant’s
objection was directed at the first respondent’s
statement that it had in the interim, realigned its operations by
insourcing
security services, with the result that it no longer had
any need for any of the services that formed the subject matter of
the
first tender, or the contract concluded with the second
respondent.
[20]
The first respondent stated in the letter that if it was ordered to
reconsider and adjudicate the original bids submitted by
the
qualifying bidders (which the appellant submitted should be the
case), the first respondent would have to take into account
the
existing insourcing process. Consequently, even if the first
respondent was ordered to adjudicate the original bids afresh,
this
would have to be based on a scope of works materially different from
that issued under the original tender. In addition, the
prices
provided by the qualifying bidders would no longer be valid and the
first respondent would have to source new prices from
these
qualifying bidders, which prices would have to be based on a
different scope of works. This would amount to a new tender
process.
In other words, it would be practically impossible for the first
respondent to adjudicate all of the original qualifying
bids, in
terms of the evaluation methodology prescribed in the original tender
document, as demanded by the appellant. Consequently,
any order
directing the first respondent to adjudicate the original bids
afresh, could have no practical effect or result.
[21]
The response of the appellant to these submissions, was that this
court could simply declare the decision of the first respondent
to
cancel the first tender unlawful, but decline to order the first
respondent to reconsider the original bids. In this regard
the
appellant submitted that there were two discrete stages in
determining whether the appeal was moot. The first stage was to
decide whether the decision of the first respondent was unlawful and
if answered in the affirmative, the issue of mootness would
only
arise when it was considered whether equitable relief should be
granted. As I understood the argument, this court could declare
the
challenged decision of the first respondent unlawful, but then
decline to grant orders reviewing and setting aside the decision,
on
the ground that it would not be equitable to do so, as it would not
have any practical effect or result. It was not explained
how such a
declaration of unlawfulness, in itself, could have a practical effect
or result. In my view, there is no basis for such
a distinction to be
drawn. The enquiry as to whether the issues in the appeal are of such
a nature, that the decision sought will
have no practical effect or
result, requires a consideration of these issues together with the
consequential relief that is sought
on appeal.
[22]
As submitted by the first respondent, the evidence of the insourcing
process is uncontentious and until the hearing of the
appeal, the
appellant raised no objection to its admission. The evidence is
material to a determination of whether the issues in
the appeal are
moot and could not by its very nature, have been produced at an
earlier stage, in the proceedings. To exclude its
admission would be
prejudicial to the first respondent and run counter to the interests
of justice, as it establishes that the
grant of the orders sought by
the appellant, would not be equitable and could have no practical
effect or result. The evidence
is accordingly admitted.
[23]
On 10 December 2018, the appellant’s attorneys responded to the
letter of the first respondent’s attorneys and
rejected the
view that the relief sought in the appeal, had become moot. In doing
so, reliance was placed upon the decision in
Allpay Consolidated
Investment Holdings (Pty) Ltd & others v Chief Executive Officer,
South African Social Security Agency & others
[2013]
ZACC 42
;
2014 (1) SA 604
(CC) para 25, where it was held that once a
ground of review under the
Promotion of Administrative Justice Act 3
of 2000
was established, s 172(1)
(a)
of the Constitution
required that the decision be declared invalid. The declaration of
unlawfulness then had to be dealt with in
a just and equitable order
in terms of s 172(1)
(b)
of the Constitution.
[24]
This argument was repeated in the appellant’s heads of
argument, as the central submission in support of the contention,
that the relief sought in the appeal had not become moot. It was
submitted that these provisions of the Constitution required the
decisions of the first respondent to be declared unlawful and that
the dilemma that arose in the appeal, was that the administrative
acts which formed the subject of the appeal, had already been acted
upon. However, and so the argument went, this dilemma did not
release
this court from its obligation, to declare the impugned
administrative acts of the first respondent, unlawful.
[25]
I find myself in no such dilemma.
Allpay
is no authority for
the proposition that a court is compelled, in terms of the
Constitution, to review and set aside an unlawful
administrative act,
where doing so will have no practical effect or result in terms of s
16(2)
(a)
(i) of the Act. But, in any event, even if it were to
be assumed in favour of the appellant, that the conduct of the first
respondent
was unlawful and that this court was legally obliged to
declare it so, it would not be just and equitable to grant the orders
sought
by the appellant, in terms of s 172(1)
(b)
of the
Constitution, when they could have no practical effect or result in
terms of s 16(2)
(a)
(i) of the Act.
[26]
The appellant also submitted that notwithstanding any finding that
the issues between the parties are moot, this court should
nevertheless exercise its discretion and deal with the merits of the
appeal, for the reason that a discrete legal issue of public
importance arose on the merits of the dispute between the parties,
that would affect matters in the future and on which the adjudication
of this court was required. The discrete legal issue of public
importance was said to be the correct interpretation of reg 13 of
the
Preferential Procurement Policy Framework Act (5/2000): Preferential
Procurement Regulations, 2017 GN R32,
GG
40553, 20 January
2017, as well as the correct interpretation of reg 36 of the first
respondent’s Supply Chain Management
Regulations. As correctly
pointed out by the first respondent, the regulations applicable to
the present appeal are the Preferential
Procurement Policy Framework
Act (5/2000): Preferential Procurement Regulations, 2011 GN R502,
GG
34350, 8 June 2011 and more particularly reg 8(4). However, the
distinction is not of importance, because the relevant portion of
reg
13 in the 2017 edition of the regulations is cast in the same terms
as reg 8(4) of the 2011 Regulations.
[27]
In
The Merak S: Sea Melody Enterprises SA v Bulktrans (Europe)
Corporation
2002 (4) SA 273
(SCA) para 4, factors to be
considered in the exercise of a discretion to allow the appeal to
proceed, were described as follows:
‘
In view of the
importance of the questions of law which arise in this matter, the
frequency with which they arise and the fact that
at the time of the
decision in the Court a quo and of the granting of leave to appeal
those questions were, as Mr Shaw for the
appellant put it, “live
issues”, I am satisfied that this is an appropriate matter for
the exercise of this Court’s
discretion to allow the appeal to
proceed.’
[28]
I am not persuaded that an interpretation of the regulations in
question, constitutes an important discrete question of law
of public
importance that frequently arises and affects matters in the future,
on which the adjudication of this court is required.
In addition,
although at the time when leave to appeal was granted on 15 August
2018, the period for which the security services
were to be provided
in terms of the first tender, would only expire at midnight on 30
November 2018, it could hardly be contended
that because three out of
the 36 months of the original tender period still remained, the award
of the tender could still be regarded
as a ‘live issue’.
The appellant nevertheless submitted that because the first tender
was never awarded, but was in
fact cancelled, the period for which
the tenders were to be awarded had not yet expired. In other words,
because the review and
setting aside of the decision by the first
respondent to cancel the first tender was sought, the grant of this
relief would result
in the tender still being extant and capable of
being awarded in the future. This argument entirely ignores the fact
that it would
be practically impossible for the first respondent at
this stage, to adjudicate all the original qualifying bids in terms
of the
evaluation methodology prescribed in the original tender
document, as demanded by the appellant.
[29]
The remaining issue is the costs of the appeal. The first respondent
in its heads of argument, as presaged in the first respondent’s
attorney’s letter of 3 December 2018, gave notice that a
special order for costs on the attorney and client scale, would
be
sought at the hearing of the appeal. The following passage in
John
Walker Pools v Consolidated Aone Trade & Invest 6 (Pty) Ltd (In
Liquidation) & another
[2018] ZASCA 12
;
2018 (4) SA 433
(SCA)
para 10, is instructive with regard to the issue of costs:
‘
The remaining
question is what to do about the costs of the application in this
court. Where an appeal or proposed appeal has become
moot by the time
leave to appeal is first sought, it will generally be appropriate to
order the appellant or would-be appellant
to pay costs, since the
proposed appeal was stillborn from the outset. Different
considerations apply where the appeal or proposed
appeal becomes moot
at a later time. The appellant or would-be appellant may consider
that the appeal has good merits and that
it should not be mulcted in
costs for the period up to the date on which the appeal became moot.
The other party may hold a different
view. As a general rule,
litigants and their legal representatives are under a duty, where an
appeal or proposed appeal becomes
moot during the pendency of
appellate proceedings, to contribute to the efficient use of judicial
resources by making sensible
proposals so that an appellate court’s
intervention is not needed. If a reasonable proposal by one of the
litigants is rejected
by the other, this would play an important part
in the appropriate costs order. Apart from taking a realistic view on
prospects
of success, litigants should take into account, among other
factors, the extent of the costs already incurred; the additional
costs
that will be incurred if the appellate proceedings are not
properly terminated; the size of the appeal record; and the likely
time
it would take an appellate court to form a view on the merits of
the moot appeal. There must be a proper sense of proportion when
incurring costs and calling upon judicial resources.’
[30]
Relevant facts in this enquiry are as follows:
(a) When leave to appeal
to this court was granted by the court a quo on 15 August 2018, it
should have been obvious to the appellant’s
attorneys that the
period for which the security services were to be provided in terms
of the first tender, would expire at midnight
on 30 November 2018. It
should also have been obvious to them, that the contract concluded
between the first and second respondents
for security services, would
also expire at the same time.
(b) The reasonable
proposal made by the first respondent’s attorneys on 3 December
2018, was rejected by the appellant’s
attorneys, for what I
regard as spurious reasons. In addition, the appellant demanded a
concession from the first respondent that
the cancellation of the
first tender and the award of the contract to the second respondent,
were unlawful. The appellant also
demanded that the first respondent
abandon the orders obtained before the court a quo and pay the
appellant’s costs on an
attorney and client scale, together
with the costs incurred in the appeal up to that stage, also on an
attorney and client scale.
[31]
In acting as they did, the appellant’s attorneys displayed a
complete lack of proportion in incurring the costs of the
appeal,
particularly as the record consisted of 2892 pages. In addition, the
appellant’s attorneys failed in their duty,
when it was obvious
that the appeal had become moot during the pendency of the appellate
proceedings, to contribute to the efficient
use of judicial resources
by making sensible proposals, so that the intervention of this court
was not needed. I agree with the
submission by the first respondent,
that the appellant’s attorney’s intransigent response to
the proposal made by the
first respondent’s attorneys, was
entirely regrettable and wholly indefensible. Although the first
respondent submitted that
the conduct of the appellant’s
attorneys was sufficiently egregious to justify the grant of a
punitive costs order on the
attorney and client scale, when all of
the facts are considered, a punitive costs order was not justified.
The appellant was therefore
ordered to pay the costs of the appeal,
on the party and party scale, such costs to include the costs of two
counsel.
[32]
Finally, what was stated by this court in
Rand Water Board v Rotek
Industries (Pty) Ltd
2003 (4) SA 58
(SCA) para 26, demands
repetition:
‘
The present case
is a good example of this Court’s experience in the recent
past, including unreported cases, that there is
a growing
misperception that there has been a relaxation or dilution of the
fundamental principle. . . that Courts will not make
determinations
that will have no practical effect.’
[33]
In the result the appeal had to be dismissed in terms of
s
16(2)
(a)
(i) of the
Superior Courts Act 10 of 2013
with costs,
such costs to include the costs of two counsel and it was so ordered,
when the matter was heard on 18 November 2019.
______________________
K G B Swain Judge of
Appeal
Appearances:
For
the Appellant: A Vorster (with N Nortjé)
Instructed
by:
Albert
Hibbert Attorneys, Pretoria
Honey
& Partners Inc, Bloemfontein
For
the First Respondent: B E Leech SC (with M D Stubbs)
Instructed
by:
Bowman
Gilfillan Inc, Johannesburg
McIntyre
Van der Post, Bloemfontein