The Municipality of Plettenberg Bay v Van Dyk & Co Inc

The respondent (Van Dyk & Co Inc) rendered professional services to the applicant (Municipality of Plettenberg Bay) and claimed payment of R69,684.74. It was undisputed that the services were rendered, that the applicant accepted the benefits of such services, and that the charges were reasonable. The applicant's defence was that the employee who instructed the respondent to render services lacked actual authority to do so. There was no special resolution passed by Council as required by section 58(1) of the Municipal Ordinance 20 of 1974 (Cape) delegating such powers to the employee. The High Court in Cape Town held that the employee had ostensible authority and that the applicant was estopped from denying authority based on the rule in Turquand, ordering the applicant to pay the respondent. The applicant applied directly to the Constitutional Court for leave to appeal without first obtaining a certificate from the High Court as required by rule 18(2) of the Constitutional Court Rules.

• Whether the applicant should be granted condonation for its deliberate failure to comply with rule 18(2) of the Constitutional Court Rules requiring a certificate from the High Court before applying for leave to appeal
• Whether leave to appeal should be granted where there has been deliberate non-compliance with the Court's rules
• Whether the doctrine of estoppel and the rule in Turquand can be applied in the constitutional context to bind a municipality where its employee lacked actual authority

The application for leave to appeal was dismissed with costs. The Court declined to order costs on an attorney-and-client scale as requested by the respondent, but ordered the applicant to pay the ordinary costs of the application.

Deliberate and conscious non-compliance with the rules of the Constitutional Court will not be condoned absent compelling reasons. Where a litigant makes a calculated decision to ignore procedural requirements because they consider them to serve no purpose, condonation will be refused. The obligation to comply with court rules exists while those rules are in force, and litigants may not unilaterally decide to disregard them based on their own assessment of their relevance or value. In the absence of serious infringement of fundamental rights, urgency, or obstacles preventing compliance, there is no basis for condoning deliberate non-compliance with procedural rules.

The Court expressly stated that it expressed no opinion on the merits of the dispute between the parties, noting that although the substantive issues concerning the application of the doctrine of estoppel and the rule in Turquand to municipalities in the constitutional context were of substance and importance to all local authorities, these could not be addressed due to the procedural non-compliance. The Court also observed that it was not apparent from the High Court judgment whether the constitutional arguments now raised were actually advanced in the lower court, and the Constitutional Court did not have the benefit of the High Court's views on those arguments. The Court noted that had a certificate been applied for, the High Court would have been obliged to address this dispute pertinently. The Court further observed that this was not a case involving serious infringement of fundamental rights, but rather concerned a money judgment for services admittedly rendered and from which the applicant benefited.

This case is significant in South African jurisprudence for establishing the Constitutional Court's approach to deliberate non-compliance with its rules. It demonstrates that the Court will not condone intentional violations of procedural rules, even where an applicant believes the rules serve no purpose in the circumstances. The case reinforces the importance of adhering to procedural requirements for approaching the Constitutional Court, particularly the requirement (as it then existed) to obtain a certificate from the lower court before seeking leave to appeal directly to the Constitutional Court. It also illustrates that the Constitutional Court will exercise its discretion strictly against granting condonation where non-compliance is deliberate and calculated, as opposed to inadvertent or excusable. The case further shows that not every dispute involving a public body or constitutional dimension warrants direct access to the Constitutional Court.