Lephalale Local Municipality v Nanza Amamiya Ndlovu Joint Venture

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: GC Muller J and EM Makgoba JP and M Naude AJ
• Judgment Date: 26 May 2022
• Docket Number: HCAA02/2022
• Hearing Date: 13 May 2022
• Court: Limpopo Division, Polokwane
• Citation: 2022 JDR 1460 (LP)

Muller:

[1]

This an appeal against the judgment of Semenya DJP with leave to the Full Court having been granted. This case commenced as an urgent ex parte application before MG Phatudi J who granted an order in the following terms on 30 March 2021:

"2.

Pending the hearing and final determination of all issues in PART B of the application.

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2.1

The purported cancellation of the agreement between the applicant and respondent dated 8 March 2021 is declared null and void and accordingly set aside.

2.2

The respondent is interdicted, prevented and prohibited from negotiating, entering into and/or appointing any consultants or other service provider in respect of the contract for the professional planning, designs, drawings and supervision of the waste transfer station in respect of GA-SELEKA AREA that includes KAULETSE and MOONG VILLAGES.

2.3

Paragraph 2.1 and 2.2 above, shall operate as interim interdict and relief immediately and forthwith.

2.4

The sheriff of this Court is directed to serve this interim order on the respondent.

Parties may supplement their papers as necessary for hearing of PART B on the 13th of May 2021.

2.6

Costs reserved."

[2]

It is also necessary to refer to the relief in PART B in light of the arguments presented to which I will revert presently. Part B states:

"3.

Directing the respondent to attend to, consider, and approve the variation order number 1 (Moong) in the amount of R5 269 219.29 (Five Million Two Hundred And Sixty Nine, Two Hundred And Nineteen Rand, Twenty Nine Cents) to increase the contract amount to R10 538 438.59 (Ten Million Five Hundred and Thirty Eight Four Hundred And Thirty eight Rand, Fifty Nine Cents.)

4.

Directing the respondent to pay the sum of R478 128. 60 (Four Hundred and Seventy Eight Thousand, One Hundred and Twenty Eight Rand, Sixty Cents) in respect of professional services rendered and to honour reasonable invoices and claims for payment by Applicant, including for those expenses reasonably incurred and incidental to the contract in the reasonable execution of the tender.

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5.

Costs of the application on an attorney and client scale."

[3]

The appellant applied, also on an urgent basis, for reconsideration of the order granted by MG Phatudi J in terms of Rule 6(12)(c) to set aside the order and to dismiss the application with costs. The application came before Semenya DJP who dismissed it, with costs. The Deputy Judge President held that:

"I regard the respondent's application for reconsideration of the order granted on the 30 March 2021 in the urgent court as simply an abuse of court process. More so that it could not categorically deny that the SLA and other tender documents are not specific about the fact that the work was to be done on two projects. It is not sufficient to state that whatever was agreed upon was not compliant with the law. The applicant is entitled to have the remaining issues determined on the normal roll instead of in the urgent court. The issues raised in the answering affidavit are those which could be dealt with in the normal roll and could have waited until the return date of the interim order. The applicant is entitled to costs on this basis."

[4]

The court, accordingly, confirmed the order granted by MG Phatudi J and issued a rule nisi returnable on 14 March 2022.

[5]

I have considerable difficulty to understand the reasoning why the reconsideration application was considered to be an abuse of process when an order was granted in the absence of the respondent.

[6]

The respondent argued before us that the interim order is not final in effect and as a result not appealable. In Metlika Trading Ltd and Others v Commissioner South African Revenue Service [1] the Supreme Court of Appeal has held that an interim interdict is appealable if it is final in effect and not susceptible to variation by the court which has granted the order. It was emphasised that in determining

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whether the order is final in effect, that not only must the form of the order be considered but predominantly what the effect of the order is.

[7]

The effect of the interim order is that the contract which has been cancelled by the respondent on 8 March 2021 was revived. The revived contract which is the subject matter of PART B of the notice of motion has far reaching financial consequences for the appellant. The relief under Part A in terms whereof the contract was given a new life is simply a precursor for the main relief claimed in Part B. Part B is not, on a close reading of the prayers, independent relief but indeed predicated upon the validity of the revived contract in terms of the order granted in Part A. Put differently; the relief in PART B presupposes a valid contract. The revival of the contract does not have interim effect. Once the contract is declared valid the effect thereof is final. I am accordingly of the view that the order is appealable.

[8]

Before turning to the merits of the appeal a preliminary issue which was raised must first be determined. The appellant raised the issue in the court a quo, and in this court, that the respondent lacked locus standi. The respondent is cited in the heading of the notice of motion as 'NANZA AMAMIYA JOINT VENTURE.' The deponent to the founding affidavit identified himself as an adult male director of the applicant. In paragraph 4 the deponent states that:

"The Applicant is a private company duly registered and incorporated as such in accordance with the company laws of the Republic of South Africa and carries on business as Consultants in the Project management and Civil and Structural Engineering Industry, with its principal business and registered office at..."

[9]

The deponent continued in the next paragraph to state that he, as the Managing Director of the applicant, per the joint venture agreement, and in terms of

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resolution of the board of directors, is duly authorised to depose to the affidavit and bring the application on its behalf. The resolution is attached to the papers. The heading of the said resolution states:

"BOARD RESOLUTION OF NANZA AMAIYA (PTY) LTD

Registration Number 2018/364241/07

TO COMMENCE LITIGATION

DULY PASSED ON 23 MARCH 2021"

[10]

The resolution records that Nanza Amamyia (Pty) Ltd believes that it has a valid claim against the respondent arising from Bid no T03/2018-2019 and that it is resolved that Nanza Amamyia (Pty) Ltd in pursuit of its claim through court proceedings and that the deponent is authorised to institute action.

[11]

The appellant denied in the papers that the resolution is a resolution of the joint venture. It was submitted before us that there is no evidence that the joint venture authorised the application. Counsel for the respondent submitted that the joint venture is partnership between two parties and that any one of the two parties has locus standi to institute the proceedings.

[12]

The Deputy Judge President accepted that the respondent has been correctly...