Fizik Investments (Pty) Ltd t/a Umkhombe Security Services v Nelson Mandela Metropolitan University

• Jurisdiction: South Africa

Fizik Investments (Pty) Ltd t/a Umkhombe Security Services v Nelson Mandela Metropolitan University
2009 (5) SA 441 (SE)

2009 (5) SA p441

Citation	2009 (5) SA 441 (SE)
Case No	1210/08
Court	South Eastern Cape Local Division
Judge	Jones J
Heard	November 6, 2008
Judgment	November 18, 2008
Counsel	JW Eksteen for the applicant.; RG Buchanan for the respondent.

Flynote : Sleutelwoorde B

Practice — Applications and motions — Review — Record of proceedings sought to be reviewed — Application to compel furnishing — Respondent resisting application on ground that review application having become settled and C issues having become moot — Concession of relief and settlement of claims not being possible until applicant having had sight of and considered contents of record — Main application not having become settled and issues not having become moot — Application granted — Uniform Rules of Court, rule 53.

Headnote : Kopnota

A security company applied for the review and setting aside of the respondent's D tender proceedings. In an interlocutory application, the applicant sought an order directing the respondent to furnish the record of the proceedings sought to be reviewed and an order amending its notice of motion to include a prayer for costs. The respondent resisted the interlocutory application on the ground that, in giving certain general undertakings, it E had conceded the relief sought in the main application, that the issues in respect of that relief had become settled or were moot and, consequently, that the need to furnish the record had fallen away. The respondent contended further that there was, in effect, no longer a lis between the parties, and that it was therefore impermissible for the applicant to introduce an additional prayer for costs. F

Held, that the applicant had a procedural right to the record in terms of rule 53(1)(b) and, importantly, rule 53(4) which stated that an applicant could, within ten days after the registrar had made the record available to him, by delivery of a notice and accompanying affidavit, amend, add to or vary the terms of his notice of motion and supplement the supporting affidavit. It G was only after the applicant had received the record that it could amplify the notice of motion and affidavits in the light of its contents, and only then was it required to formulate its allegations and its relief in final terms. A respondent was not entitled to circumvent the applicant's right to the record merely by giving undertakings, and especially so where the undertakings were not given in terms acceptable to the applicant. Any talk of the H relief being conceded, or the claims being settled, or the issues becoming moot, was premature. The point could not arise until the applicant had had sight of the record and was in a position to evaluate its position in the light of its contents. (Paragraph [7.1] at 444F - 445B.)

Held, further, that there had been no formal concession of relief or admission of I facts in the pleadings or affidavits or by way of a notice and there was also no evidence of any express agreement of settlement. (Paragraphs [7.2] and [7.3] at 445C - D.)

Held, further, that an issue was moot in the present context if it was of academic interest only and had no practical benefit or significance to the parties. In the present case, the applicant complained of having been unfairly treated and sought specific relief requiring that the respondent's procedures, in the J

2009 (5) SA p442

J future, comply with specific legislation. The respondent had not admitted unfairness and had refused to give an undertaking which incorporated the specific legislation referred to. It could not therefore be said, on the papers, that the issues in the notice of motion were moot. (Paragraph [7.4] at 445F - I.)

Held, further, that the matter had not been shown to have been settled or to have B become moot, and the applicant was entitled to interlocutory relief for the production of the record. It follows that the objection to the amendment regarding costs fell away. (Paragraph [8] at 445I - J.) Application granted.

Cases Considered

Annotations

Reported cases C

Jockey Club of South Africa v Forbes 1993 (1) SA 649 (A): referred to.

Rules Considered

Rules of Court

The Uniform Rules of Court, rule 53: see The Supreme Court Act and the D Magistrates' Courts Act and Rules 6 ed (Juta, 2006) at 77.

Case Information

Interlocutory application to compel furnishing of record and amend notice of motion. The facts appear from the reasons for judgment.

JW Eksteen for the applicant.

RG Buchanan for the respondent. E

Cur adv vult.

Postea (November 18).

Judgment

Jones J: F

[1] The applicant is a provider of security services. Until recently it had been contracted to provide security services for the respondent, having...