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[2021] ZAGPJHC 145
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Eskom SOC Ltd v Oracle Corporation South Africa (Pty) Ltd (12773/2021) [2021] ZAGPJHC 145 (31 March 2021)
(lnlexso
Innovative legal Services)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO
: 12773/2021
DATE
:
2021.03.31
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
REVISED
In
the matter between
ESKOM
SOC LTD
and
ORACLE
CORPORATION SOUTH AFRICA (PTY) LTD
JUDGMENT
WEPENER,
J:
This application served in
the urgent court Johannesburg in the week when a large number of
matters were brought to court and it
is a short week as the coming
Friday is also a public holiday. In these circumstances it is not
possible to produce a full and
reasoned judgment in relation to all
issues that were touched upon in the papers or during argument.
Nevertheless, I will deal
with the main issues as they crystallised
before me.
The
applicant seeks a
mandamus
in terms of which the respondent is
ordered to continue providing services to it for another period of a
year. During 2017 the parties
entered into an agreement in terms of
which the respondent was to supply services on an annual basis for a
period of five years.
The renewal and annual services were by way of
invitation by the respondent and the applicant placing a task order
on the respondent
for a further period of one year.
In
the meantime, a dispute regarding payment for its services arose
between the applicant and the respondent. The dispute arose
subsequent to an audit performed by the respondent, which audit it
was entitled to perform in terms of the written agreement between
them. One of the clauses of the agreement reads as follows:
"8.9. Upon 45 days'
written notice Oracle may audit your use of the operating system,
integrated software and integrated software
options. You agree to
cooperate with Oracle's audit and provide reasonable assistance and
access to information. Any such audit
shall not unreasonably
interfere with your normal business operations. You agree to pay
within 30 days of written notification
any fees applicable to your
use of the operating system, integrated software and integrated
software options in excess of your
licence right. If you do not pay
Oracle can end, a), the service offerings (including technical
support) related to the operating
system, integrated software and
integrated software options and , b) "
Subsequent
to the audit the respondent claimed payment of sums of money for the
use of the operating system, generally said, supplied
by the
respondent. The applicant disputes the correctness of the audit and
has instituted action against the respondent in which
it seeks the
following relief: That is a declaration that the refusal by the
defendant, in this case the respondent, to continue
its service
offerings to plaintiff is wrongful and unlawful and directing the
respondent to provide such services until 30 April
2002.
What
is immediately apparent is that the relief is not for a review of the
defendant's audit which it had undertaken. If relief
is to be sought
in relation to an incorrect audit it is still to be formulated and
prosecuted. The relief now sought, being an
interim interdict pending
the hearing of the act ion, is, in my view, misplaced as the action
will not determine the validity of
the outcome of the audit.
The
plaintiff is seeking an interdict in the absence of any arrangement
or agreement between the parties as to their respective
rights and
obligations in the event of disputes aris in g. Such contractual
arrangements are commonplace in contracts such as those
for
construction or building.
In
this matter, due to a lack of agreement by the parties regarding
their respective rights in the event of a dispute, the applicant
argues that it is entitled to a
mandamus
in common law, as
supported by section 34 of the Constitution.
The
applicant's case, in my view, has several difficulties. The first
difficulty is that the applicant's right to have a dispute
heard in a
court is not affected at all. The action which it instituted is
proceeding and is unhindered and it had no technical
obstruction in
bringing the present application. Whichever of the proceedings the
applicant relies upon and seeks the support of
section 34 of the
Constitution, it has it and its rights are not adversely affected
contrary to the provisions of the sect ion.
The
second difficulty is that the first requirement that is always
considered when an interdict is sought is the requirement that
a
party seeking an interdict must show a clear right to the relief
sought by it. Much of the debate before me with counsel for
the
applicant centred around the issue and counsel, in my view, had
difficulty in defining the right which the applicant wishes
to exert.
The
reference to the action which I referred to cannot be that right as
it is not in danger in any way. It is common cause that
those
proceedings are continuing. Then what is this right? The right seems
to be then the one that finds its basis in the written
agreement,
that is the continuation of the services rendered by the respondent,
but that is regulated by the contact in no uncertain
terms. I have
quoted the clause above.
It
is common cause that the respondent raised the payment of fees after
the audit and that these were not paid within 30 days, resulting
in
the respondent ending the service as is provided for in the
agreement. The applicant's disagreement with the outcome of the
audit
is of no moment as the right of the respondent contracted for is not
qualified in any manner.
Relying
on
Metcash
Trading
Ltd
v
Commissioner
of SARS
2001 (1) SA 1109
(CC) it was
argued that the principle of pay now whilst the dispute is pending
cannot apply. In
Metcash
the Court found that the relevant
provisions of the act provided for such a course of conduct.
The
relevant section specifically provides that the duty to pay the tax
is not suspended during the disputed proceedings, but ,
as I said, it
is so provided in the act. That is also the type of arrangement one
finds in, for instance, building and other contracts.
The agreement
in this matter does not deal with such an instance and the applicant
has failed to identify a right upon which it
can rely to seek interim
relief.
In
all the circumstances I come to the conclusion that the application
falls to be dismissed with costs.
WEPENER, J
JUDGE
OF THE HIGH COURT
DATE:
21 June 2021