AT & T Transport and Group of Companies (Pty) Ltd v Government Employees Pension Fund

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: Petersen J
• Judgment Date: 10 August 2023
• Citation: 2023 JDR 3013 (NWM)
• Hearing Date: 28 July 2023
• Docket Number: M117/2022
• Court: North West Division, Mahikeng

Petersen J:

Introduction

[1]

This is an opposed application for leave to appeal. On 15 December 2022, I handed down an order granting the provisional winding-up of the applicant (“AT & T”- respondent in the main application). My reasons for the order followed on 05 January 2023 and was transmitted to the legal representatives of the parties by e-mail on the even date. The judgment and order was further served at the behest of the respondents, by the Sheriff of the High Court on AT & T on 13 January 2023.

[2]

AT & T filed a Notice of Application for Leave to Appeal on 15 March 2023. In terms of Rule 49(1) of the Uniform Rules, the said application was to be filed by no later than 03 February 2023, calculated from the date of service of the judgment and order, on 13 January 2023. AT & 7 seeks leave to appeal only against a part of the judgment on the following grounds:

“1)

The learned Judge erred in finding that:

1.1

Mowana has the necessary locus standi to institute legal proceedings on behalf of the Government Employees Pension Fund (GEPF) in that the point in limine dealing with the Notice in terms of Rule 7(1) was dismissed;

2023 JDR 3013 p3

Petersen J

1.2

Finding that Mowana was a duly authorized representative of the GEPF;

1.3

Finding that the authority of Mowana to represent GEPF was not seriously challenged by the Respondent;

1.4

That the Respondent did not specifically plead that the GEPF and the Public Investment Company did not comply with the Public Finance Management Act 1 of 1999 and Preferential Procurement Policy Framework Act, 2000.

2)

The learned Judge erred in:

2.1

failing to accept the Rule 7(1) notice and not inviting the Attorneys of Mowana and by implication Mowana, to prove that they are duly authorized to act on behalf of the GEPF;

2.2

failing to accept the request that the Mowana is to provide a resolution of the Board of Trustees of the GEPF to confirm the relevant authority to act;

2.3

failing to accept the request that a Resolution of the Board of Directors of the Public Investment Company be provided in confirmation of the necessary authority to act;

2.4

Failed to find that there was non-compliance with PFMA and PPPFA by GEPF, specially in light of the fact that no proof or record thereof was provided.”

2023 JDR 3013 p4

Petersen J

Condonation

[3]

AT & T was 39 days out of time when it filed its Notice of Application for Leave to Appeal on 15 March 2023. AT & T accordingly seeks condonation for the late filing of its Notice of Application for Leave to Appeal.

[4]

In the founding affidavit in support of the application for condonation deposed to by Tshepo Immaculate Lekalake, the Director of AT & T (in liquidation), the main reason put forward for the lateness of the application for leave to appeal is set out as follows at paragraphs 4.5 to 4.7:

“4.5

I was under the impression that the Judgment cannot be Appealed against as the nature of the order has an interim and/or provisional effect. It was only after consultation with our legal representative, after the matter was postponed in light of the employees wanting to intervene, that we were advised that the orders pertaining to the point in limine’s are final, and the Applicant can Appeal against these orders specifically should good grounds for the Leave to Appeal exists.

4.6

It is not frequently seen that there are two final orders granted within an interim and/or provisional order and the Appellant is of the view that there are reasonable prospects of success should an Application for Leave to Appeal against the orders specifically dealing with the point in limine, be raised.

4.7

The Applicant is not deliberate in filing the Application for Leave to Appeal out of the timeframes provided by the Rules of Court but was

2023 JDR 3013 p5

Petersen J

rather oblivious of the right and possibility to file such an Application pertaining to the final orders within the provisional order.”

[5]

The approach to an application for condonation is settled in our law. In Mulaudzi v Old Mutual Life Assurance company (SA) Limited,’ [1] Ponnan JA re-affirmed the factors to be considered in respect of an application for condonation as stated in Melane v Santam Insurance Co. Ltd, that:

“Factors which usually weigh with this court in considering an application for condonation include...