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IN THE HIGH COURT OF SOUTH AFRICA

EASTERN CAPE DIVISION, GRAHAMSTOWN

CASE NO: CA05/2015

DATE: 13 MAY 2015

In the matter between

EASTERN CAPE PARKS AND TOURISM AGENCY.................................................APPELLANT

And

SALDOSOL INVESTMENTS (PTY) LTD..........................................................1ST RESPONDENT

SLIP KNOT INVESTMENTS 777 (PTY) LTD...................................................2ND RESPONDENT

DATE HEARD: 20/04/2015

DATE DELIVERED: 13/05/2015

JUDGMENT

ROBERSON J:-

[1] The appellant, respondent in the court a quo, appeals against the following order granted by Msizi AJ on 28 February 2014:

“1. The respondent is interdicted and restrained from proceeding to implement:

(a) the tender process it commenced by publishing a tender invitation on 31 January 2014, incorrectly under bid reference number 13/FY/14;

(b) the quotation process under Quotation No. 051/13/14 pending the finalization of a review application to be instituted by the applicants within 10 days after receiving the full written record and documents pertaining to the decision taken by the Respondent to invite tenders in terms of the 2014 tender invitation.

2. The Respondent is to furnish the applicants with the full written record and documents pertaining to the decision taken by the respondent to invite tenders within a period of 10 (ten) days from date of this order.

3. The Applicants to bring the review application with ten (10) days of their receipt of the record and documents pertaining to the decision taken by the Respondents to invite the tenders and issue the Request for Quotations in 2014.”

BACKGROUND

[2] During 2013 the appellant, a public entity, invited tenders for the provision of office accommodation. The tender was awarded to a joint venture. The first respondent, one of the unsuccessful bidders, brought an application for an order interdicting the appellant from concluding a contract with the joint venture pending the finalisation of a review application. The application was settled and by agreement the court ordered, inter alia, that the appellant was to commence a new tender process for the provision of leased office accommodation. The appellant duly published a new invitation for tenders and later, after it became aware that the respondents intended to launch interdict proceedings, invited quotations for the lease of office space for three months.

[3] The respondents launched proceedings for the relief contained in Msizi AJ’s order, alleging that the decision relating to the publication of the tender criteria was reviewable in terms of the Promotion of Administrative Act 3 of 2000 (PAJA). One of the grounds of review alleged was that the invitation to tender was designed to suit the building tendered by the joint venture in the 2013 tender process, and to exclude buildings tendered by the first respondent in the 2013 tender process, thereby demonstrating bias on the part of the appellant.

[4] One of the points of dispute before Msizi AJ was whether or not the invitation for tenders and the request for quotations constituted administrative action, and consequently whether or not the respondents had established a prima facie right. Msizi AJ decided this point in favour of the respondents.

[5] Msizi AJ granted leave to appeal against her order. It is apparent from the judgment in the application for leave to appeal that the respondents raised the issue of appealability. In granting leave, Msizi AJ did not deal with this issue. She granted leave on the basis that another court might reach a different conclusion on the issue of whether or not the invitation for tenders and the request for quotations amounted to administrative action. This was the issue sought to be determined on appeal.

WAS THE ORDER APPEALABLE?

[6] In this court the respondents continued to contend that the order of Msizi AJ was not appealable and the issue of appealability was argued before us, as well as the issue sought to be determined on appeal.

[7] The question of appealability was discussed in Phillips v SA Reserve Bank and Others 2013 (6) SA 450 (SCA). At paras [24] to [28] Farlam JA said the following:

“[24] Counsel for both respondents contended that the order was not appealable because it is not definitive of the rights of the parties and not dispositive of at least a substantial portion of the relief claimed in the main proceedings. In this regard reliance was placed on what was said by this court in, inter alia, Zweni v Minister of Law and Order 1993 (1) SA 523 (A) at 536B – C.

[25] It must be remembered, however, that, as Hefer JA said in Moch v Nedtravel (Pty) Ltd t/a American Express Travel Service 1996 (3) SA 1 (A) at 10F, the passage in Zweni 'does not purport to be exhaustive or to cast the relevant principles in stone'.

[26] The question of appealability in a case such as this, where a party seeks to attack on appeal an order made in judicial proceedings which have not yet been terminated, was discussed by Nugent JA in a judgment with which the other members of the court concurred, in National Director of Public Prosecutions v King 2010 (2) SACR 146 (SCA) (2010 (7) BCLR 656; [2010] 3 All SA 304) paras 50 – 51, where he said the following:

'There will be few orders that significantly affect the rights of the parties concerned that will not be susceptible to correction by a court of appeal. In Liberty Life Association of Africa Ltd v Niselow (in another court), which was cited with approval by this court in Beinash v Wixley [1997] ZASCA 32; 1997 (3) SA 721 (SCA), I observed that, when the question arises whether an order is appealable, what is most often being asked is not whether the order is capable of being corrected, but rather whether it should be corrected in isolation and before the proceedings have run their full course. I said that two competing principles come into play when that question is asked. On the one hand justice would seem to require that every decision of a lower court should be capable not only of being corrected but of being corrected forthwith and before it has any consequences, while on the other hand the delay and inconvenience that might result if every decision is subject to appeal as and when it is made might itself defeat the attainment of justice.

In this case it was said on behalf of Mr King that the order is not appealable because it is interlocutory. Whether that is its proper classification does not seem to me to be material. I pointed out in Liberty Life that while the classification of the order might at one time have been considered to be determinative of whether it is susceptible to an appeal the approach that has been taken by the courts in more recent times has been increasingly flexible and pragmatic. It has been directed more to doing what is appropriate in the particular circumstances than to elevating the distinction between orders that are appealable and those that are not to one of principle. Even the features that were said in Zweni v Minister of Law and Order to be characteristic, in general, of orders that are appealable were later said by this court in Moch v Nedtravel (Pty) Ltd t/a American Express Travel Service not to be exhaustive, nor to cast the relevant principles in stone. As appears from the decision in Moch, the fact that the order is not definitive of the rights about which the parties are contending in the main proceedings and does not dispose of any relief claimed in respect thereof, which was one of the features that was said in Zweni to generally identify an appealable order, is far from decisive.'

[27] The matter was further discussed in two recent decisions of this court, Health Professions Council of South Africa and Another v Emergency Medical Supplies and Training CC t/a EMS 2010 (6) SA 469 (SCA) paras 14 – 19; and Government of the Republic of South Africa and Others v Von Abo 2011 (5) SA 262 (SCA) para 17, where Snyders JA (with whom the rest of the court concurred) said:

'It is fair to say that there is no checklist of requirements. Several considerations need to be weighed up, including whether the relief granted was final in its effect, definitive of the rights of the parties, disposed of a substantial portion of the relief claimed, aspects of convenience, the time at which the issue is considered, delay, expedience, prejudice, the avoidance of piecemeal appeals and the attainment of justice.'”

[8] The appealability of interim orders was considered in National Treasury and Others v Opposition To Urban Tolling Alliance and Others 2012 (6) SA 223 (CC). In that matter the court a quo had issued an interim interdict prohibiting the second applicant, an organ of state, from levying and collecting toll on certain Gauteng roads pending an application to review and set aside certain decisions, including the decision to declare the roads as toll roads. The following was said at paras [24] and [25] (footnote omitted):

“[24] It is so that courts are rightly reluctant to hear appeals against interim orders that have no final effect and that in any event are susceptible to reconsideration by a court when the final relief is determined. That, however, is not an inflexible rule. In each case, what best serves the interests of justice dictates whether an appeal against an interim order should be entertained. That accords well with developments in case law dealing with when an appeal against an interim order may be permitted.

[25] This court has granted leave to appeal in relation to interim orders before. It has made it clear that the operative standard is 'the interests of justice'. To that end, it must have regard to and weigh carefully all germane circumstances. Whether an interim order has a final effect or disposes of a substantial portion of the relief sought in a pending review is a relevant and important consideration. Yet, it is not the only or always decisive consideration. It is just as important to assess whether the temporary restraining order has an immediate and substantial effect, including whether the harm that flows from it is serious, immediate, ongoing and irreparable.”

[9] In contending that the order was appealable, Mr Notshe SC, who appeared with Mr Nyangiwe for the appellant, relied on the “flexible and pragmatic” approach, and submitted that the impact of the order on the appellant should be considered. The appellant, an organ of state, had been prevented from continuing with the tender process, and further, the review application has not yet been instituted. We were informed from the bar that there was a dispute concerning the completeness of the record of decision which had been furnished to the respondents by the appellant.

[10] In my view, and applying the approach set out in the above authorities, the factors raised by Mr Notshe are not such as to render the order appealable. Mr Notshe conceded that the issue of whether or not the decisions of the appellant amounted to administrative action was a live one. In other words they are susceptible to reconsideration when the review application is heard. The order is therefore not final in effect and has not disposed of a substantial portion of the relief intended to be claimed in the review application. While the order had an immediate effect, it has not in my view had a substantial effect nor has it resulted in serious, ongoing and irreparable harm. According to Mr Notshe the appellant has not had to cease its operations. Should the review not succeed, the appellant may continue with the tender process. Even if the review were to succeed, the appellant would not be prevented from inviting tenders afresh. The appellant is therefore not prevented from seeking to attain justice.

[11] In deciding what best serves the interests of justice, the interests of all the parties must be considered. In this matter the review application is still to be brought and the record of decision may lead to the respondents relying on further grounds of review other than those alleged in the application for interim relief. An appeal at this stage would therefore be premature, potentially prejudicial to the respondents, and not in the interests of justice.

[12] As to the fact that the review application has not yet been launched, the appellant is not without a remedy. It is not prevented from applying for an order that the interim order should be discharged.

[13] It follows that I conclude that the order of Msizi AJ is not appealable. It is therefore not necessary, nor desirable, to consider and decide the issue of whether or not the decisions sought to be reviewed constitute administrative action.

[14] The appeal is struck from the roll with costs.

J M ROBERSON

JUDGE OF THE HIGH COURT

PICKERING J

I agree

J D PICKERING

JUDGE OF THE HIGH COURT

NDZONDO AJ

I agree

M G NDZONDO

JUDGE OF THE HIGH COURT (ACTING)

Appearances:

For the Applicant: Adv V Notshe SC, with Adv X S Nyangiwe,

Instructed by Netteltons Attorneys, Grahamstown

For the Respondents: Adv J F Pretorius,

Instructed by Neville Borman & Botha Attorneys, Grahamstown

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