Judge lambastes lethargic EC government
● Yet another court has found that the Eastern Cape government must pay Ikamva Architects the R41m in fees plus the interest the firm lost when it was sacked as principal agent for the R1.6bn refurbishment of East London’s Frere Hospital.
Eastern Cape high court judge Ivana Bands ruled against the provincial departments of health and public works on Thursday in their applications to rescind a 2011 order by judge Buyiswa Majiki striking out their defences to the Ikamva claim, and a R41m default judgment by judge Thembekile Malusi in 2015 that Ikamva’s damages claim must be paid.
Bands also awarded punitive costs against the two departments for initiating the rescission hearing.
She said it is in the public interest that litigation be brought to finality, to avoid legal uncertainty and potentially chaotic consequences for litigants. The government could not show it was precluded from being present in court when either Majiki’s or Malusi’s order was granted — a requirement in rescission applications, she found. Instead, the departments exhibited persistent negligence, avoided coming to court or dealing with the demands of Ikamva’s litigation, failed to instruct their lawyers to appear, and did not oppose the Ikamva application compelling them to provide documents and information the firm required to prepare its case, nor to oppose the applications before Majiki or Malusi, or seek condonation of their failures and ensure their defences were reinstated.
In a statement issued through attorney Gary Stirk, Ikamva said Bands’s judgment succinctly summarised the departments’ abuse of the court process over 16 years of Stalingrad-style litigation.
“We hope that this process will now come to an end. The company has been deprived of the damages to which it has been entitled since the judgment in December 2015. The fiscus has had to fork out millions of rands in legal costs, both for the state departments’ own representatives and for the company’s costs, flowing from fruitless and reckless litigation.
“We estimate that, with interest running unabated, the sum owing to the company has quadrupled. The money should be paid immediately,” Ikamva said.
The departments are being held jointly accountable for the architects’ bill. Over the years, they edged ever closer to being characterised as vexatious litigants, with another judge previously finding they were driven to litigate to avoid paying up to R120m in capital and interest reserved by the government to cover the damages up to that point, rather than submitting a legitimate defence to the claim.
The latest judgment completes at least a dozen substantive judgments or orders of the provincial high court in Ikamva’s efforts to be paid.
The case has also been before various Supreme Court of Appeal and Constitutional Court benches.
Bands agreed with Ikamva’s position that the Eastern Cape government was unprocedurally trying to constitute her court as an appeal court in respect of all previous and pending judgments against it.
Ikamva sued the departments after they were replaced on the Frere project by the Coega Development Corporation in 2008. The government’s defence at the time, saying the contract with Ikamva was not valid as a proper procurement process had not been followed, has now been thrown out, after Ikamva argued that a roster system was followed for its appointment.
A chunk of Bands’s judgment was a restating of previous judgments on the matter, mostly in favour of Ikamva, reflecting the case’s long and arduous journey through the courts at an inordinate and unnecessary cost to the public purse, she said. Her findings point clearly to the inattention of the government in litigating the matter, as other judges have also found.
She noted the glaring absence in the application before her of any explanation for the failures of the departments and their lawyers.
However, she concurred with descriptions, in passing, by other courts that Majiki’s order to strike out the departments’ defences to Ikamva’s claim for damages was erroneous because it collapsed two steps in a standard court process into a single one.
The first step was to show the court that an erring litigant had not complied with an order and that grounds existed for the striking out of a defence; the second step was an application to the court for a default judgment based on the striking out.
But, over 13 years, the government failed to deal with the suggested error in the order, even ignoring guidance from a 2014 full bench on how they could comply with Majiki’s order. As a result, by 2015, Majiki’s order stood, and Malusi could only hear argument by the departments’ counsel on how much damages should be awarded, since the merits were “done and dusted”, that advocate said.
The government pursued efforts to appeal or rescind Malusi’s judgment through the courts, all the way to the Constitutional Court, and lost each time.
It initiated the rescission applications in 2022, after another full bench judgment by deputy judge president David van Zyl and judges Bantubonke Tokota and Avinash Govindjee.
Bands accepted that an order from the SCA could render her own findings irrelevant.
Neither premier Oscar Mabuyane nor the departments responded to requests for comment.