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IN THE HIGH COURT OF SOUTH AFRICA

NORTH WEST DIVISION, MAFIKENG

 

CASE NO: M346/2020

Reportable: NO

Circulate to Judges: NO

Circulate to Magistrates: NO

Circulate to Regional Magistrates: NO

 

In the matter between:

RUSTENBERG LOCAL MUNICIPALITY                                             Applicant

and

LAYER3 TELECOM (PTY) LTD                                                           Respondent

Delivered: This judgment was handed down electronically by circulation to the parties' representatives via email. The date and time for hand-down is deemed to be 10H00 on 21 JUNE 2022.

 

ORDER

(i)           The application for leave to appeal to the Full Court of the Division is granted.

(ii)         Costs of the application for leave to appeal shall be costs in the appeal.

 

JUDGMENT IN THE APPLICATION FOR LEAVE TO APPEAL

 

PETERSEN J

Introduction

[1]          This is an opposed application for leave to appeal to the Full Court of the Division against the whole of the order of this Court which forms part of a written judgment handed down on 8 October 2021.

[2]          The grounds of appeal are set out as follows in the Notice of Application for Leave to Appeal:

"1.  In its judgment the Court only dealt with and considered the contents of the point in limine as raised by the Applicant (the Respondent in the main application), without having regard to the contents of the substantive defence which the Applicant set out on the merits of the matter and as contained in paragraph 13 of the Applicant's answering affidavit, and more specifically the contents of paragraphs 13.3 to 13.6 thereof;

2.         It is respectfully submitted that the Court in its adjudication of the matter and in its judgment should have considered and dealt with:

2.1     the contents of the Applicant's substantive defence as raised in the contents of paragraph 13 of the Applicant's answering affidavit, and more specifically the contents of paragraphs 13 to 13.6 thereof, which expressly invokes the provisions of section 23(1) of the Promotion of Access to Information Act, Act 2 of 2000 (hereafter "the PAIA') and complies with the requirements for the invoking of the said provision in the PAJA;

2.2     the fact that the Respondent's replying affidavit, except for taking issue with fact that the Applicant should have submitted an affidavit in terms of section 23(1) of the PA/A at an earlier stage, did not take issue with the substantive contents of paragraph 13.5 of the Applicant's answering affidavit;

2.3     the fact that the Applicant deponent stated under oath, as required in terms of the provisions of section 23(1) of the PA/A, that:

(a)        the records stated in paragraph 2 of Annexure "OT9" annexed to the Respondent's founding affidavit could not be found by the Applicant;

(b)        the remainder of the records listed in Annexure "OT9" were provided to the Respondent by the Applicant;

(c)        the Applicant conducted an extensive, intensive and diligent search for the said records and subsequent to the execution of such a search, said records could not be found;

(d)        the Applicant could provide no further explanation for the absence of the.said records, save to state that the Applicant did uncover certain mismanagement in its procurement division which led to and culminated in the institution of numerous disciplinary charges against the former manager of the procurement division of the Applicant, Mr Sam Makhura;

(e)        Makhura elected to resign from the employment of the Applicant during this disciplinary hearing conducted by the Applicant against him and before same could be finalised;

(f)         since Mr Makhura's resignation several other case and incidences of maleficence within the Applicant's procurement unit under his governance have surfaced and more particularly records in tender processes being missing or incomplete;

(g)        the Court were referred to other similar matter in this Court where records from the Applicant's procurement division were not complete;

(h)        the Applicant has taken steps to ensure that the procurement unit of the Applicant functions in accordance with the applicable statutorily prescribed procurement processes and procedures, which include the retention of records;

(i)         the applicant's version as stated in the answering affidavit is confirmed by two confirmatory affidavits annexed to its answering affidavit, being that of the Applicant's attorney (against whom the Respondent made certain allegations regarding the availability of the records which were not provided to the Respondent) and the Applicant's manager of its procurement unit.

3.         If the Court considered and dealt with the above referred to contents of the Applicant's answering affidavit the Court would not have made the order as set out in the first subparagraph of paragraph [50] of the Court's judgment. It is respectfully submitted that the Court erred in not doing so.

4.         It is submitted that upon the grounds stated in the premise the Applicant has a reasonable prospect of success in taking the judgment of the Court on appeal as another Court may come to a different finding in this matter and more specifically that another will not make the order which the Court had made in paragraph [50] of the judgment."

The test applicable to an application for leave to appeal

[3]          The application for leave to appeal is predicated on section 17(1)(a)(i) and (c) of the Superior Courts Act 10 of 2013, which provides, inter a/ia, that:

"Leave to appeal

17.          (1)       Leave to appeal may only be given where the judge or judges concerned are of the opinion that-

(a)        (i)         the appeal would have a reasonable prospect of success;

(c) where the decision sought to be appealed does not dispose of all the issues in the case, the appeal would lead to a just and prompt resolution of the real issue between the parties."

[4]          It is widely accepted since the enactment of the Superior Courts Act, the test applicable to an application for leave to appeal is that leave to appeal may only be given where a judge is of the opinion that the appeal would have reasonable prospects of success. The bar has accordingly been set much higher. The question is now "would" a different court come to different conclusion and not "might" a different court come to different conclusion. See Valley of Kings Thaba Motswere (Pty) Ltd v Mayya lnternational [1] where the following is stated:

"There can be little doubt that the use of the word "would" in section 17 (1) (a) (i) of the Superior Courts Act implies that the test for leave to appeal is now more onerous. The intention clearly being to avoid our courts of appeal being flooded with frivolous appeals that are doomed to fail. I am, however, of the respectful view that the "measure of certainty" standard propounded by the learned judge in Mont Chevaux Trust (supra) may be placing the bar too high. It would, in my respectful view, be unreasonably onerous to require an applicant for leave to appeal to convince a judge - who invariably would have provided extensive reasons for his or her findings and conclusions - that there is a "measure of certainty" that another court will upset those findings. It seems to me that a contextual construction of the phrase "reasonable prospect of success" still requires of the judge, whose judgment is sought to be appealed against, to consider, objectively and dispassionately, whether there are reasonable prospects that another court may well find merit in arguments advanced by the losing party."

Discussion

[5]          I have had careful regard to the heads of argument filed by counsel in the application for leave to appeal. I do not propose to repeat the content, save to deal with the grounds of appeal and the prospects of success on appeal, if any.

[6]          In respect of the application for leave to appeal, the gist thereof in my view is predicated on what the applicant phrases its substantive defence raised on the merits of the matter in relation to section 23(1) and (2) of the Promotion of Access to Information Act, Act 2 of 2000

("PAIA"). It is apposite to refer to the aforesaid provisions, inclusive of subsection (3), in considering the application for leave to appeal. Sections 23 (1), (2) and (3) of PAIA provides as follows:

"23    Records that cannot be found or do not exist

(1)       lf-

(a)    all reasonable steps have been taken to find a record requested; and

(b)    there are reasonable grounds for believing that the record-

(i)      is in the public body's possession but cannot be found; or

(ii)     does not exist, the information officer of a public body must, by way of affidavit or affirmation, notify the requester that it is not possible to give access to that record.

(2)       The affidavit or affirmation referred to in subsection (1) must give a full account of all steps taken to find the record in question or to determine whether the record exist, as the case may be, including all communications with every person who conducted the search on behalf of the information officer.

(3)       For the purposes of this Act, the notice in terms of subsection (1) is to be regarded as a decision to refuse a request for access to the record.

"

[7]          In respect of section 23(1) and (2) of PAIA, the applicant contends that this Court did not deal with the substantive defence raised by applicant on the merits of the matter as contained in paragraph 13 of the applicant's answering affidavit and more specifically the contents of paragraphs 13.3 to 13.6 thereof. Paragraphs 13.3 to 13.6 of the answering affidavit of the applicant reads as follows:

"13.3 It will be remiss of me not to specifically deny that the Respondent's attorney at any time express (sic) any contention that all the documents which were requested by the Applicant in its Form A PA/A available and in the possession of the Respondent's attorney. That was never conveyed to the Applicant's attorney.

13.4   In fact, the contents of Annexure "OT9" which was addressed "without prejudice" to the Applicant's attorney confirms in paragraph 2 thereof that despite an extensive search certain documents were not found by the Respondent.

13.5   I hereby in terms of the provisions of section 23(1) of the PA/A confirm that the records stated in paragraph 2 of Annexure "OT9" annexed to the Applicant's founding affidavit could not be found by the Respondent, the remainder of the records listed in Annexure "OT9" were provided to the Applicant;

(a)    I instructed the manager of the procurement unit of the Respondent at the time, Gordon Madimetsa Rapolai to conduct an extensive, intensive and diligent search for the said records and subsequent to the execution of such a search, said records could not be found.

(b)    I cannot explain the absence of these records as same are normally kept by the Respondent,

(c)     What I can state is that the Respondent did uncover certain mismanagement in its procurement division which led to and culminated in the institution of numerous disciplinary charges against the former manager of procurement division, Mr Sam Makhura;

(d)    Mr Makhura elected to resign from the Respondent's employment during the disciplinary hearing conducted by the Respondent against him and before same could be finalised;

(e)    since Mr Makhura's resignation several other case and incidences of maleficence within the Respondent's procurement unit until his governance have surfaced and more particularly records in tender processes being missing or incomplete;

(f)      I refer the Court to the contents of affidavits being attested to on the Respondent's behalf in this court under case numbers UM10Bl2019 and M432/2019, as well as two other review applications which are on the brink of being issued in this Court by the Respondent against C M S Mater Technologies and Meese Capital;

(g)    at the hearing of this application the case numbers of these two review applications will be available and the court papers in these applications shall be availed to the Court;

(h)    I am at this point in time ensuring that the procurement unit of the Respondent functions in accordance with the applicable statutorily prescribed procurement processes and procedures, which include the retention of records."

14          The respondent in its replying affidavit took issue with the fact that the applicant should have submitted an affidavit in terms of section 23(1) of PAIA at an earlier stage and not in its answering affidavit. Whilst the applicant contends that the Plascon Evans rule should have found applicability as a result, I am of the view that that it was not applicable.

15          In my view, the question in this application for leave to appeal, predicated on the section 23 issue in the main, is whether, another Court would be satisfied that it was correctly dealt with in the answering affidavit of the applicant during the course of motion proceedings or if it should have been dealt with in the ordinary course of the tenets of the PAIA, which is designed to avoid litigation, as necessitated in this matter.

Conclusion

16          Having carefully considered the grounds of appeal and the submissions of Counsel for the applicant and respondent in the heads of argument provided, I am of the view that there are reasonable prospects that another court, sitting as a court of appeal, could come to a different decision. The application for leave to appeal accordingly stands to be granted.

Order

17          In the result, the following order is made:

(i)        The application for leave to appeal to the Full Court of the Division is granted.

(ii)      Costs of the application for leave to appeal shall be costs in the appeal.

 

A.H.PETERSEN

JUDGE OF THE HIGH COURT,

NORTH WEST DIVISION, MAHIKENG

 

APPEARANCES

For the Applicant                                      Adv. N G Laubscher

Instructed by                                            M E Tlou Attorneys

No 43, cnr Baden Powell and

Visser Streets

Golfview

MAHIKENG

For the Respondent                                 Adv. T. Moretlwe

Instructed by                                            Modiboa Attorneys

c/o Motshabi & Associates Inc

12 Havenga Street

Golfview

MAHIKENG

Date of Hearing                                       17 June 2022

Date of Judgment                                    21 June 2022

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