Cape Town - No clear winners have emerged in a Western Cape High Court judgment where both parties in the matter had their respective applications to appeal aspects of the original judgment dismissed with costs.
The City lost its application for leave to appeal the judgment of a case it lost in February this year, where the judge found that it had misinterpreted the Construction Industry Development Board Act (CIDB Act) and related regulations with regard to a tender.
The original dispute had arisen out of the City’s rejection of a tender submitted by JK Structures (JKS) for appointment to a panel of contractors to be used by the City for the replacement of sewer pipes.
Meanwhile, JKS had applied for an order putting into effect the judgment obtained in its favour in the original case back in February “notwithstanding any pending application for leave to appeal or appeal by the City against the judgment”.
Both applications were heard jointly by Judge Ashley Binns-Ward.
In his ruling in February, the judge ruled that the City’s misinterpretation of the regulations resulted in it applying the incorrect contractor grading qualifications in terms of the CIDB Act, thereby wrongly excluding from consideration contractors with a grading lower than 7CE.
JKS had successfully argued in court, that they had previously been satisfactorily contracted to render exactly the same type of construction work in terms of a previous framework contract with the City.
Regarding the City’s application, the judge said the contemplated appeal would have very poor prospects of success.
“Having dispassionately reviewed the principal judgment, I find it most unlikely that another court would construe the statutory provisions differently,” he said,
However, he said It remained open to the City, if so advised, to apply further to the Supreme Court of Appeal for leave to appeal.
Regarding the JKS application, the judge said usually the effect of a judgment is immediately suspended when an application for leave to appeal against it is lodged, unless the court makes an exception.
The Judge said JKS had failed to establish that it would suffer irreparable harm if the judgment was suspended, pending the determination of any ensuing appeal.
He said: “It would be a rare case where a litigant who has won an award, not to some extent be disadvantaged by the delay imposed on the enforcement of the judgment because of the lodging of an appeal. That sort of disadvantage is an inherent feature of the law.”
The judge said JKS’s application was “ill-advised.” However, he said that JKS had identified some factors that might support an application to the President of the Supreme Court of Appeal for an expedited hearing of any appeal that could ensue pursuant to the grant of leave to appeal by that court.
Nevertheless, the judge said that JKS’s application had been refused with costs, while at the same time he dismissed the City’s application leave to appeal with costs, including the fees of two counsel.