58
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)
CASE NO: 22782/21
(1) REPORTABLE: NO (2) OF INTEREST TO OTHER JUDGES: NO ……………………….. ………………………….. DATE SIGNATURE ………………………. ……………………….. DATE SIGNATURE
In the matter between:
KGWERANO SOLUTIONS (PTY) LIMITED Applicant
AND
TRANSNET SOC LIMITED First Respondent
NCUBE INCORPORATED Second Respondent
_______________________________________________________________________
JUDGMENT
_______________________________________________________________________
[1] This is an application which the applicant seeks the following relief: -
That this court should direct the second respondent to rectify, clarify and or
reword its awards dated the 15 August 2019 by removing any ambiguity and / or
errors contained therein in order to meaningfully and accurately define the
recommendation relating to rights and obligations between the applicant and the
first respondent in relation to each other.
[2] The clarity, rectification and / or rewording of the second respondent’s award
sought by the applicant revolves around the following: -
i) That the words “in accordance with the terms governing the payment of fees”
as per paragraph 3.4 of the said award be amplified and / or varied and / or
reworded and / or rephrased so as to inform the parties precisely for what
losses and / or expenses, the first respondent is liable to the applicant;
ii) That the words “in the ordinary management of the contract entered into”
contained in paragraph 3.4 of the award be amplified and / or varied and / or
reworded and / or rephrased so as to inform the parties precisely what is
intended to be meant by the said words;
iii) That the words “paragraph 2.3 above” contained in paragraph 3.4 of the
award be amplified and / or varied and / or reworded and / or rephrased so
as to give meaning to the said words, read in the context of the award.
iv) Granting leaving to the applicant to apply on the same papers supplemented
where necessary for further and / or ancillary relief;
v) That the second respondent be ordered to pay the costs of this application
including the costs occasioned by the deployment of two counsel;
vi) In the event the first respondent opposing this application it be ordered to
pay the costs of this application;
vii) Further and / or alternative relief as this court may deem fit necessary and
reasonable.
[3] The first respondent is resisting the application based inter alia on the following
basis: -
a) That the application is legally flawed as the ombud as a creature of statute is
directed to exercise powers it does not have in that the ombud is directed to
make a determination on issues beyond the complaints in the bidding process;
b) The applicant is seeking a relief that encroaches unjustifiably on the principle of
separation of powers;
c) According to the first respondent, the applicant is actually directing this court to
substitute its discretion and to step into the shoes of the ombud in favour of the
applicant;
d) The order sought by the applicant constitutes a mandamus which is available in
limited circumstances obliging a public functionary to act under an enabling Act.
It is argued that the ombud does not have such an obligation to do so;
e) Failure by the applicant to plead and establish requirements for the relief it
seeks, are enough grounds to dismiss applicant’s application.
BACKGROUND FACTS
[4] The applicant submitted a bid during 2018 for the provision of Maintenance and
Rail Network using Ballistic Screening Machines Countrywide as advertised by the
first respondent under Bid number SIC7018 – 2ICDB. (tender contract)
The tender contract was for a period of two years.
[5] During 27 September 2018 the applicant was identified and confirmed as a
preferred bidder under Bid number SIC7018-2CIDB and issued with the letter of
intent. The parties herein in the interim identified the services which the first
respondent would wish the applicant to provide prior to the finalization and
execution of a detailed Agreement between the parties.
[6] The purpose of the letter of intent was to declare the intention of the parties in
respect of the required services to be provided by the applicant and will remain
effective until the Agreement is signed by the parties herein or until sixty days
have elapsed from the date of issue of the letter of intent unless terminated by
the first respondent prior to the expiry of sixty days whichever occurs first.
[7] After the issuing of the letter of intent, several meetings were held between the
parties herein and discussed how the tender was to be executed.
During the said discussions, the applicant changed the supplier (Aveng Rail) of
the machinery to be used as the supplier identified in the letter of intent
was unable to supply the agreed machinery. The applicant appointed another
supplier, Plasser South Africa (Pty) Ltd. The first respondent postponed the date
for the commencement of services to be provided by the applicant to December
2018. The letter of intent operative date for sixty days was extended by the first
respondent to 21 January 2021.
During 13 March 2019 the first respondent through a letter sent to the applicant
withdrew the letter of intent alleging that the substitution of the machine
supplier amounted to a material change in the initial tender awarded to the
applicant.
[8] Subsequently the applicant challenged the withdrawal of the letter of intent and
approached the office of the first respondent’s ombudsman to intervene in its
dispute to the withdrawal of the letter of intent by the first respondent.
The dispute was among others based on the fact that the first respondent was
informed of the substitution of the machinery supplier and had not noted any
objection and the said machinery were tested by the first respondent and were
deemed to be appropriate for the work to be executed by the applicant. The
applicant was required to commence with its work after the disclosure of a
change of the supplier of the machinery and the applicant mobilized its
workforce and resources to execute its task.
[9] It is contended by the applicant that the first respondent would not be
prejudiced in any way by a change of a machinery supplier. On the contrary
the applicant incurred considerable expenses amounting to millions of Rands due
to the unfair withdrawal of the letter of intent by the first respondent.
The applicant sought the reversal of the withdrawal of the letter of intent and it
be allowed to continue with its work as the appointed bidder.
[10] It further requested as an alternative, the ombud to order that the first
respondent pay R33 827 295.56 immediately being the costs incurred by the
applicant in preparations to commence with work on behalf of the first
respondent. The second respondent was tasked by the first respondent’s ombud
to deal with the dispute between the parties. In its award delivered to the
parties, the second respondent upheld the applicant’s dispute that the
withdrawal of the letters of intent was unlawful and did not uphold the
applicant’s alternative claim for a directive for payment.
The award read as follows: -
“The award of the bid to Kgwerano Solutions as per the original letter of intent
dated 27 September 2018 and subsequently extended on 2 November 2018 and
21 January 2019 remains valid and the retraction of the LOI in terms of the letter
from Transnet Freight Rail to Kgwerano Solutions dated 13 March 2019 is invalid
and hereby set aside”;
“Transnet Freight Rail is instructed to proceed with Kgwerano Solutions as the
preferred bidder”;
“The parties must conclude the requisite contract as soon as is reasonably
possible, but within a period no longer than 45 calender days from the date of
issue of this letter”;
“The payment of the costs invoiced by Kgwerano Solutions, as costs incurred to
date, shall be paid in accordance with the terms governing the payment of the
fees due to Kgwerano Solutions in the ordinary management of the contract to
be entered into in accordance with paragraph 2.3. above”
[11] The bone of contention between the parties regarding the award by the second
respondent revolves only around the issue of payment of costs incurred by the
applicant as ordered in the award i.e paragraphs 3.4.
The concern of the applicant regarding the award as per paragraph 3.4 is that it
is not clear for which costs is the first respondent liable to pay and on what
basis such liability for the said costs is to determined. Accordingly the applicant
submitted that the said award regarding payment of costs (paragraph 3.4) is
ambiguous and needs to be clarified.
[12] The first respondent argues that the invoices submitted by the applicant for
payment as directed in the award fall outside the scope of the award in
paragraph 3.4.
The queries raised by the first respondent inter alia related to the following: -
i) That the costs for rented vehicle has no bearing to the letters of intent;
ii) That the legal costs are not recoverable by the applicant in terms of the
award;
iii) Regarding the salaries claimed for the applicant’s manager, the first
respondent sought work schedule for the period claimed to make a
determination for work specifically performed;
iv) The claim for loss of profit cannot be claimed as the award ordered
reinstatement of the contract between the parties;
v) That the mobilization costs incurred are for the applicant’s account.
[13] The applicant approached the first respondent’s ombud to clarify its award. The
request for clarity was declined by the ombud on the basis that it was functus
officio.
In a nutshell, the parties differ diametrically as to the interpretation of paragraph
3.4 regarding the award for payment of costs as ordered by the second
respondent. The applicant seeks this court to refer the award back to the second
respondent to rectify, clarify, reword and / or rephrase its award for costs as it is
deemed to be ambiguous and to meaningfully and accurately define which costs
and on what basis is the first respondent liable to pay its incurred wasted costs.
CONDONATION APPLICATION
[14] The first respondent seeks relief for condonation for the alleged late delivery of
its answering affidavit.
It is contended by the first respondent that the applicant’s notice of motion is
irregular due to the following: -
i) That the applicant failed to comply with Rule 6 (13) of the Rules of Court in
that the applicant gave the first respondent 5 days instead of the requisite 15
days as provided by the Rules. The first respondent advised the applicant of
the irregularity in a correspondence addressed to the applicant.
The application for condonation is not opposed.
[15] The first respondent vehemently protested that it delivered its answering
affidavit beyond the prescribed time frames.
It further contended that if this court holds a contrary view that the affidavit is
unduly late and condonation is refused, such a ruling will be prejudicial as first
respondent’s rights to a fair hearing will be compromised.
The first respondent contended that it is in the interest of justice that the
condonation application be granted. It is further argued by the first respondent
that the length of the alleged delay is minor being a ten court days delay.
The first respondent submitted that it has strong prospects of success in
opposing the application.
[16] A court may condone non-compliance of the Rules where the applicant
demonstrates that a valid and justifiable reasons exists why non-compliance
should be condoned.
An applicant is to furnish an explanation of his default sufficiently and fully to
enable the court to understand how it really came about and to assess his
conduct and motives.
See Federated Employees Fire General Insurance Co Ltd .V. Mckenzie
1969 (3) SA 360 (A) at 362 F-H
Silber .V. Ozen Wholesalers (Pty) Ltd 1954 (2) SA 345 (A) at 353A
[17] It is trite law that the standard for considering an application for condonation is
in the interest of justice.
See Grootboom .V. National Prosecuting Authority and Another 2014
(2) SA 68 (CC) paragraphs [22] and [23]
Whether is in the interest of justice to grant condonation depends on the facts
and circumstances of each case.
[18] It is my view that the first respondent’s explanation is bona fide and good cause
has been shown as to why the application should be granted.
The first respondent will suffer great prejudice if condonation is not granted
whereas the applicant’s prejudice will be very minimal.
I find that it is in the interest of both parties and more particularly in the interest
of justice that condonation be granted.
The following order is accordingly made:
1) That the condonation application is hereby granted;
RULE 7 (1) NOTICE
[19] The applicant contested and disputed the authority and mandate of the first
respondent’s attorneys of record in the opposing application.
The first respondent ultimately served and filed the requisite power of attorney
authorizing and mandating the first respondent’s attorney of record to oppose
this application.
[20] The notice in terms of Rule 7 (1) of the Rules of Court became moot at the
hearing of the application as the applicant’s objection in terms of Rule 7 (1) was
accordingly addressed before the hearing of this application.
APPLICANT’S CONTENTION
[21] It is not disputed that in terms of the award, the first respondent is liable for the
costs incurred by the applicant but applicant contended that the award does not
state the extent of liability on the part of the first respondent and parties herein
cannot agree what costs are due and payable as awarded.
According to the applicant, the impasse and disputes between the parties
necessitated the launching of this application. The applicant’s view is that the
first respondent is to be liable for all the reasonable and necessary expenses
incurred from the date of incurrence as the first respondent is the sole cause of
the breakdown of the negotiation between the parties when it unlawfully
retracted the letter of intent.
[22] The applicant stated that its invoices are in accordance with the quote which
a tender was awarded to it and the first respondent cannot now be heard of
querring the same quote it accepted.
In trying to resolve the impasse and first respondent’s queries, the
applicant submitted that it furnished the first respondent with all the
documentations explaining and indicating what amounts were incurred for each
item in its invoices.
Despite the supporting documentation from the applicant, it is alleged that the
first respondent stuck to its guns that the amounts claimed did not accord with
its interpretation of the second respondent’s (ombud) award.
It is therefore the submission by the applicant that there is a need and it is
essential that the second respondent’s award contained in paragraph 3.4 of the
award be clarified.
[23] According to the applicant, it is in the interest of both parties herein that the said
award be clarified in clear and certain terms without any ambiguity.
In its interpretation to the second respondent’s second portion of the award, the
applicant’s view is that the second respondent in order to protect the applicant
once the master service agreement had been entered into, attempted to record
that the award should contain provisions for payment in accordance with the
letter of intent. It seems to the applicant that the second portion of the second
respondent award appears to be legally incompetent.
[24] The applicant contended that the first respondent’s interpretation of the second
portion of the award that payment of the amount as invoiced by the applicant
should be in terms of clause 2 and clause 3.1 of the letter of intent as if there
was an ordinary management of the contract between the parties during such
period, cannot be correct as there was no such contract.
The first respondent’s three different interpretations of the second respondent’s
award and believe that it is not liable for the incurred expenses without
substantiating as to the reason thereof, cannot be sustained so argued the
applicant.
[25] In an e mail addressed to the second respondent dated the 17 October 2020 the
applicant attempted to explain that its request to the second respondent
requesting clarification for the award was not for the second respondent to make
a determination for amounts as contained in applicant’s invoices.
After numerous exchange of correspondences between the applicant and the
second respondent, the second respondent ultimately stated that it is functus
officio and it cannot therefore provide the requested clarification of its award.
The view of the applicant is that second respondent’s contention that it is functus
officio is without any legal basis and approached this court seeking the relief that
the second respondent must be directed to clarify its award. The applicant
argued that the first respondent’s conduct is not only mala fide and capricious
in disputing the amounts as invoiced but is intended not to reach an amicable
resolution of their impasse and disputes.
It is applicant’s submission that reference by the second respondent to
paragraph 2.3 to its award needs to be corrected as there is no paragraph 2.3 in
the award.
[26] The applicant contended that it is necessary for this court to compel the first
respondent to clarify its award as the applicant has no other alternative but to
approach this Court for an order as per its notice of motion.
The applicant submitted that it has made out a case for the referral of the
award back to the second respondent for clarification as prayed and the first
respondent be ordered to pay the costs of the application including costs
occasioned by the deployment of two counsel.
IN RESPONSE
[27] The first respondent argues that it is only liable for contract fees and related
costs in terms of the letter of intent and not the reasonable and necessary costs
incurred by the applicant as a result of the withdrawal of the letter of intent.
The invoices submitted by the applicant are querried and disputed by the first
respondent. According to the first respondent, the applicant’s relief seeking an
order that a discretionary power in its favour to clarify and rectify its award in
the absence of a review relief, is flawed.
The contention of the first respondent is that the ombud does not have powers
beyond those in terms of the empowering provisions as contained in the terms of
the terms of reference of the ombud.
[28] In the opinion of the first respondent the relief sought by the applicant in
directing the ombud to clarify and rectify its award constitutes a mandamus.
Such a relief is only available when an administrative organ like the ombud is
compelled to do something that it is obliged to do under an enabling statute. The
first respondent submitted that since the ombud has made a determination, it is
deemed to be valid until it is reviewed. The view of the first respondent is that
an order directing the ombud to rectify and clarify its award under the
circumstances of this matter will be ultra vires and unlawful.
[29] It is contended that applicant failed to demonstrate that the ombud
has powers to clarify its award like courts and arbitrators are empowered to do.
The first respondent submitted that indeed the courts and arbitrators have the
power to clarify their decisions in exceptional circumstances but argues that the
applicant failed to demonstrate that the ombud’s award falls within the
aforementioned powers exercised by court and arbitrators.
[30] The first respondent submitted that the application be dismissed on the following
preliminary basis: -
1. The mandamus sought by the applicant is not competent in law
[31] The first respondent is of the opinion that the relief sought by the applicant is
solely reliant on the legal causa of a mandamus.
In actual fact the applicant seeks a mandatory interdict to compel the ombud to
perform a positive action.
The first respondent contended that there is no such obligation existing on the
ombud to rectify and clarify its award.
[32] For the applicant to succeed with a mandatory interdict which is final in nature it
must satisfy the following requirements: -
a) A clear right;
b) An injury actually committed or reasonably apprehended and;
c) The absence of similar protection by any other ordinary remedy.
[33] The first respondent’s argument is that despite the applicant being a preferred
bidder it does not have a clear right to the relief sought as the invoices claimed
are disputed.
According to the first respondent, the applicant omitted to demonstrate that it
has a clear right to the relief sought.
[34] The submission by the applicant that the continued impasse between the parties
result in the applicant suffering uncertainty is not compliant with the
requirement that there is actually an injury committed by the respondent or such
an injury is reasonably apprehended. The first respondent denied that there is
any uncertainty pertaining to the award and disputed that there is an impasse
between the parties herein.
[35] It is contended that the monetary dispute between the first respondent and the
applicant may be resolved through an appropriate dispute resolution rather that
by way of application proceedings. As such the first
respondent failed to satisfy the requirement that it has no alterative remedy.
The contention of the first respondent is that the applicant did not sufficiently
plead to establish its cause of action. It was expected of the applicant to raise
issues upon which it would seek to rely with reasonable clarity to enable the first
respondent to clearly know which case it has to answer.
[36] The first respondent hold the view that the applicant did not adequately
plead the legal requirement and establish the legal requirements of a
mandamus, and as such the application be dismissed.
The first respondent contended that the impasse in not agreeing to the amounts
claimed by the applicant and the delay in implementing the agreement cannot be
blamed on the first respondent. The correct interpretation of the award by the
first respondent is that it is only liable for costs as per the terms governing the
ordinary management of the contract between the parties and the typographical
error in paragraph 3.4 of the award as opposed to paragraph 3.3 thereof is
negligible.
[37] What the award means is that the terms of payment would be guided by the
contractual terms by the parties.
The terms of reference of the bid stipulates that decisions by the ombud should
accord to the procurement issues of the unsuccessful bidders alone and not the
monetary issues of the successful bidders.
The first respondent submitted that any reference by the applicant to the
ombud’s jurisdiction is without any basis. Accordingly the first respondent
argued that the applicant failed to make out a case and its application be
dismissed.
[38] The submission by the first respondent is that the ombud is indeed functus
officio and until its award is reviewed and set aside, it remains valid. In the
circumstances it would be unlawful to clarify and rectify its award.
Accordingly the first respondent applies for the dismissal of the application as the
applicant has failed to satisfy the requirements for a mandamus.
[39] In reply the applicant submitted that the purpose of its application is to obtain
clarity and it is not seeking a mandamus or a principal relief.
It is disputed that the applicant is seeking this court to exercise its discretionary
power to be ordered in its favour instead the ombud should be directed to
rephrase its award as it is deemed to be ambiguous.
[40] Contrary to the view of the first respondent, the applicant argues that the ombud
does have jurisdiction and powers to rectify, clarify and rephrase its award in
instances where it is not clear.
Reference to the principle of separation of powers s averred by the first
respondent is irrelevant and baseless in the opinion of the applicant.
The applicant contended that the terms of reference of the ombud permit the
ombud to clarify its determination regarding the liability for costs in the award as
it will be beneficial to both parties in this matter, so submitted the applicant. The
parties herein it is argued, would be better placed to know exactly what the
ombud meant in its award.
[41] The invoices so submitted are according to the applicant is, in terms of the
letters of intent and that the court is not asked to make a monetary award but to
direct the ombud to clarify its award.
The applicant argues that it is not seeking a determination of issues finally in the
motion proceedings but intends to avoid further disputes by requesting that the
ombud should rectify and clarity any ambiguity in its award.
The applicant’s view is that a case has been made out for the relief sought and it
be granted with costs.
CONDONATION OF THE LATE FILING OF THE REPLYING AFFIDAVIT
[42] The late filing of the applicant’s replying affidavit is hereby granted as it is in the
interest of both parties and in the interest of justice to do so.
ANALYSIS AND LEGAL PRINCIPLES
[43] The dispute and impasse between the parties boils down to the following: -
What interpretation to be accorded to the award by the second respondent.
Secondly the parties do not agree as to whether or not the award be referred
back to the second respondent to be rectified, clarified, rephrased and or
reworded to can enable the parties to fully understand in clear terms what the
award is really all about.
[44] As aforementioned it is not in contention that the first respondent is liable for the
costs incurred by the applicant but what is in issue is to which costs and to what
extent of liability is the first respondent to be held responsible.
It is worthwhile to revisit the terms of reference of the ombud when requested to
intervene when a letter of intent was retracted by the first respondent.
[45] The ombud is generally defined as a natural juristic person seized with authority
to exercise a public power or perform a public action as empowered by the
relevant provision.
The empowering provision for the second respondent would therefore be in
accordance with the terms of reference of the complaint as lodged by the
applicant against the first respondent.
[46] Among the powers conferred to the second respondent in terms of the terms of
reference are to investigate, make recommendation, cancelling of the bid,
referring a bid for re-evaluation, amending a bid decisions and to recommend
relevant and appropriate measures against any first respondent’s officials.
The ombud in this matter is further empowered to review any bid award as it
deems fit.
The question to be addressed is, does the second respondent permitted to
exercise powers beyond those accorded by the terms of reference in this matter.
[47] It is contended by the applicant that the ombud like any judicial bodies and quasi
judicial bodies is entitled to rectify and clarify its award in case it is ambiguous.
On the other hand the first respondent is of the view that the second respondent
cannot exercise powers or perform a function beyond those conferred in the
terms of reference to it.
[48] A distinction is to be made between the general powers of the ombud and those
that are prescribed specifically or those that fall within the prescripts of the terms
of reference conferred to the second respondent. Accordingly the second
respondent as tasked to deal with the specific complaints relating to the first
respondent about its management of the bidding or procurement, the second
respondent in my view cannot perform any function or has authority to exercise
its powers beyond the empowering provisions as tabulated by the terms of
reference in casu.
See Limpopo Legal Solutions and Another .V. Eskom Holdings Limited
[2017] ZALMPPHC 1 at 27.
[49] In the circumstances of this case I am not persuaded that the second respondent
is empowered to exercise powers like any judicial and quasi-judicial bodies as its
mandate as an ombud are specifically defined in terms of reference as conferred.
When approached to clarity its award, as it allegedly open to different
interpreters and ambiguity, the second respondent pleaded that it is functus
officio.
The first respondent argues that since the second respondent is functus officio,
the applicant should have embarked on a review process which it failed to do.
[50] In the absence of reviewing and setting aside the second respondent’s award,
such award remains valid. According to the first respondent the applicant should
have approached the court instead of the second respondent for clarity of the
award.
The stand point of the applicant is that it was not necessary to review the award
as its request is simply to seek clarity on some aspects of the award that is
ambiguous.
As it is not seeking that the second respondent’s revisit the matter, the second
respondent’s position that it is functus officio is according to the applicant,
without any basis whatsoever.
[51] The principle of functus officio dictates that once a decision maker has made a
determination, such decision is deemed to be final. Its purpose is to bring finality
to matters and once made, the decision maker cannot revoke its own decision as
it is deemed final.
See Minister of Justice .V. Ntuli 1997 (2) SACR 19 (CC); 1997 (6) BCLR
677 (CC); 1997 (3) SA 772 CC paragraphs 22 and 29
[52] In my view the contentious issue about the fees to be made by the first
respondent in terms of the award, is that such costs are to be paid in accordance
with the terms governing payment of fees to the applicant as contained in the
management contract. Any costs incurred that is not catered for in the terms of
reference cannot be for the account of the first respondent. I regard an
award by the second respondent as final and accordingly I am of the opinion
that the second respondent is thus functus officio. Referring the said award back
to the second respondent on the basis that it is ambiguous is not sustainable and
helpful to the applicant.
[53] The argument by the applicant that it is merely seeking clarity in my view,
cannot be acceptable as it goes to the heart of the award itself. In the event the
award as requested by the applicant, is rephrased, reworded, corrected and
further clarified, it may have an effect of the second respondent setting aside its
own decision and / or alter its own final relief according to my view if not
satisfied with the award as granted, it has to be reviewed. Until it is reviewed or
set aside by a court, it is presumed valid.
See Oudekraal Estates (Pty) Ltd .V. City of Cape Town and Others 2004
(b) SA 222 (SCA) at 26
[54] I therefore find that the second respondent is functus officio as such the second
respondent’s authority over the mandate conferred in the terms of reference
ceased when making the final award.
The first respondent contended that the substantiative relief sought by the
applicant is based on the legal causa of a mandamus.
An order sought by the applicant is to direct the second respondent to rectify
and clarify its award as it is deemed to be short of meaningful and accurate
interpretation.
By compelling the second respondent to exercise its judicial decision making
discretion in favour of the applicant will contravene the principle of separation of
powers.
[55] Relying on a mandamus, the applicant has to plead and establish the
requirements of a mandate which it is argued it omitted to do and thus the
application is fatally flawed and should be dismissed.
On the flip side, the applicant argues that its case is for the ombud to clarify its
award and it is not seeking a mandamus. Accordingly the applicant need not
prove the requirements for a mandamus.
[56] The interdict approach as suggested by the first respondent is irrelevant as the
relief sought is simply to request clarity of the said award. The doctrine of
separation of powers finds no application in this matter so argued the applicant.
Since the second respondent has already made a determination, applicant argues
that it seeks the second respondent to clarify what it has already done.
The applicant submitted that it has suffered irreparable harm and has no any
other remedy and pleads that its application be granted with costs.
Mandamus may be broadly defined as a relief or a command compelling a
decision maker to exercise or perform some other statutory duty.
[57] The applicant in casu seeks an order that compels the second respondent to
rectify, clarity, rephrase, reword and correct its award. I hold the view that
indeed the application is based on a mandamus directing the second respondent
to exercise its quasi-judicial decision making and clarify its award.
For the applicant to be successful with its application it has to meet and establish
the requirements of a mandamus.
It is not enough for the applicant to only submit that in the absence of clarity by
the second respondent, it will suffer irreparable harm and that there are no
alternative remedy.
[58] It is expected of the applicant to fully and sufficiently plead and satisfy all the
requirements necessary for a mandamus.
The applicant has to demonstrate that it has a clear right to the relief it seeks,
that an actual injury has been committed or it is reasonably expected to be
committed, that there is no other legal remedy available and that it will suffer
irreparable harm.
I find that the applicant did not adequately plead and satisfy all the requirements
necessary to be successful with the relief it seeks in its application.
It is not necessary in my view to further consider and make a determination on
the merits of this matter as the issues have been sufficiently dealt with in the
preliminary bases as raised herein.
[59] After careful consideration of the issues and submissions made by both parties in
this matter, I am of the view that the application falls to be dismissed with
costs.
COSTS
[60] Counsel for the first respondent’s view is that the application be rejected and it
be dismissed on the preliminary basis as the applicant failed to make out a case
for its relief sought in the notice of motion.
It is submitted on behalf of the first respondent that although it is an organ of
state, the application is brought for the purpose of commercial gain and
therefore the court should order the applicant to be liable for costs incurred
including costs for two counsel.
[61] It is generally accepted that costs follow the results. A successful party is entitled
to his / her costs unless ordered otherwise by the court.
The court in Ferreira .V. Levin No and Others 1996 (2) par [3] held that
the award of costs unless otherwise enacted, is in the discretion of the Court.
The facts of each and every case are to be considered by the court when
exercising its discretion and has to be fair and just to all the parties.
[62] The purpose of an award of costs to a successful party is to indemnify him or her
for the expenses which he has been unnecessarily put through.
I am of the view that the application before this court is complex and the
complexity thereof will be considered when making a determination as to costs.
Having found that the application be dismissed on preliminary basis and for lack
of adequate pleading and failure to satisfy the requirements for a mandamus and
generally that the applicant failed to make out a case for the order it sought in
its notice of motion, a costs order is warranted against the applicant.
[63] After considering the facts and submissions made herein, I find that the first
respondent should not have been put through the process of this application
incurring unnecessary expenses in opposing this application.
In Cronje .V. Pelser 1967 (2) SA 589 (A) at 593 the court held that the
Court should take into consideration the circumstances of each case.
ORDER
The following order is made: -
1) The application is dismissed;
2) The applicant is ordered to pay costs including costs of two counsel.
__________________________
S S MADIBA
ACTING JUDGE OF THE HIGH COURT
GAUTENG DIVISION PRETORIA
APPEARANCES:
HEARD ON: 16 FEBRUARY 2022
FOR THE APPLICANT: MORGAN LAW INC.
28 THE AVENUE
ORCHARDS
JOHANNESBURG
TEL: 011 020 6838
E MAIL: ryan@morganlaw.co.za
FOR THE FIRST RESPONDENT: HARRIS NUPEN MOLEBATSI INCORPORATED
3RD FLOOR 1 BOMPAS ROAD
DUNKELD WEST
JOHANNESBURG
TEL: 011 017 3100
DATE OF JUDGMENT: 30 NOVEMBER 2022
As the ombud failed to assist the parties in determining their rights in relation to
their dispute, parties are entitled to be clarified of any ambiguity arising from the
award.
[39] According to the applicant the view of the first respondent that their dispute may
be resolved through other contractual mechanism is misplaced as the office of
the ombud is the relevant forum to be approached.
The applicant’s submission is that the orders of judicial bodies, quasi-judicial
bodies and the ombud ought to be clear and unambiguous. It is contended that
for the ombud to state that it is functus officio defeats the purpose for which the
ombud was appointed for.
[40] It is disputed that the applicant is seeking this court to exercise its discretionary
powers as averred by the first respondent is irrelevant and baseless in the
opinion of the applicant.
The applicant contended that the terms of reference of the ombud permit the
ombud to clarify its determination regarding the liability for costs in its award.
The clarify sought from the ombud in its award will be beneficial to both parties
in this matter, so submitted the applicant. The parties herein it is argued, would
be better placed to know exactly what the ombud meant in its award.
[41] The invoices so submitted are accordingly to the applicant, in terms of the letters
of intent and that the court is not asked to make a monetary award but to direct
the ombud to clarify its award.
The applicant argues that it is not seeking a determination of issues finally in the
motion proceedings intends to avoid further disputes by requesting that the
ombud should rectify and clarity any ambiguity in its award.
The applicant’s submitted that a case has been made out for the relief sought
and it granted with costs.
The late filing of the applicant’s replying is hereby granted as it is in the interest
of both parties and in the interest of justice to do so.