Company gets temporary reprieve against CDC
Lebogang Mosikare | Friday June 12, 2020 13:09
Round Ground wanted the decision of CDC withdrawing a tender awarded to it on December 5, 2018 be reviewed.
It also wanted an order that the decision taken by CDC to withdraw the tender to be set aside, an order that the tender was lawfully awarded to the applicant on December 2018 and costs of the suit and further and or alternative relief.
When delivering judgement in the matter recently, Justice Tshegofatso Mogomotsi said “…on November 29, 2019, the respondent filed notice to raise points in limine (a process that addresses a technical legal point, which is raised prior to getting into the merits of the case) arising from the failure of the applicant to comply with Order 4 rule 4(2) of the High Court as it had failed to file a resolution of the Board of Directors with its originating papers.
“The applicant without any notice of opposition or otherwise and without leave of the court on December 9, 2019, filed the missing resolution purportedly passed at a meeting held on March 14, 2019… At the hearing of the argument on point in limine on March 4, 2020, the counsel of the applicant did not appear and instead another attorney appeared on his instructions. CDC argued that the application was invalid to the extent that it was not compliant with Order 4 rule 4 (2) of the regulations and the resolution and other papers filed by the applicant on November 9, 2019 without first seeking leave were not properly before court and consequently liable to be struck out,” the judge said.
Thirdly, Mogomotsi said that CDC argued that in the absence of a resolution preceding the issuance of the statutory notice dated February 13, 2019 or any ratification of that step, the resolution dated March 9, 2019 did not cure the invalidity of the applicant’s process originating papers filed on October 9, 2019.
“The applicant disputed none of these issues raised by CDC but, however, argued that he had inadvertently omitted the resolution which the board passed on March 9, 2019. Secondly, he tried to rectify his omission by filing same soon after receipt of the respondent’s notice to raise point in limine albeit without leave of the court,” said Mogomotsi.
She added: “In his acknowledgement of his tardiness, the applicant implored the court to indulge him and condone the late and non-compliant filing of the resolution by evoking Order 5 rule 1 of the High Court”.
In terms of the rules of Order 5 rules 1 and 2 of the High Court, Mogomotsi posited that non-compliance with the rules or any practice would not necessarily always render the proceedings void unless the court so orders.
“The rule consequently confers the court with the latitude to exercise discretionary powers, which discretion must be exercised judiciously to condone non-compliance with the rules or practice,” Mogomotsi pointed out.
He noted: “This discretion is conferred in recognition of the cardinal and guiding principle that rules are there not to disadvantage litigants and stall the wheels of justice on non-prejudicial technicalities but to oil them where the rule or procedure is not mandatory and condoning its violation would not occasion prejudice to the other part, the court should in pursuit of fairness and justice allow for substance to prevail over form.”
She continued: “It’s vital to further mention that the exercise of discretionary powers and granting of condonation under Order 5 is not always a given as there are other considerations the court has to apply its mind to in determining whether or not to exercise it. In these proceedings, the applicant was enjoined having not filed the resolution with the originating process to have first sought leave of the court to file the same. Since he never did, the resolution filed on November 9, 2019 was strictly speaking not properly before court and liable to be struck out.”
Mogomotsi said whilst she doesn’t for a moment approve of the manner in which the applicant acted, she further noted: “I found it necessary to consider and weigh if there would be any prejudice that may be occasioned to the respondent in the event condonation for the delay in filing the resolution was to be granted.”
“I noted that, save for the inconvenience, costs and the applicant’s lack of courtesy, the respondent who in any event had also not filed his answering affidavit, there would not be prejudiced. These being relatively fresh proceedings and applicant having rectified the omission in filing the missing resolution albeit without leave, I find it and in accordance with the dictates of the justice to uphold substance over form and grant leave for late filing of the resolution passed by the applicant on March 9, 2019 contents of which in any event are not under attack. Premised on the above, leave to file the resolution dated March 10, 2019 is granted… The applicant shall pay the costs of the application on attorney and client scale,” Mogomotsi said.