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2023
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[2023] ZAFSHC 477
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Unitrade 1047 (Pty) Ltd t/a Isidingo Security v Metsimaholo Local Municipality and Others (6568/2023) [2023] ZAFSHC 477 (14 December 2023)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable: YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
Case
number: 6568/2023
In
the matter between:
UNITRADE
1047 (PTY) LTD T/A ISIDINGO SECURITY
Applicant
and
METSIMAHOLO
LOCAL MUNICIPALITY
First
Respondent
FUSI
JOHN MOTLOUNG
Second
Respondent
PROMPTIQE
TRADING 7 CC t/a WHITE LEOPARD
SECURITY
Third
Respondent
CORAM:
LOUBSER, J
HEARD
ON:
13 DECEMBER 2023
DELIVERED
ON:
14 DECEMBER 2023
[1]
This is an application that came before this court on an urgent
basis. It is common
cause that the Applicant has a service level
agreement with the First Respondent, and that the First Respondent
had summarily terminated
that agreement on 1 December 2023. In terms
of the agreement, the Applicant had provided security services to the
First Respondent.
When the agreement was terminated, the First
Respondent awarded the security services in question to the Third
Respondent.
[2]
In the notice of motion, which consists of a part A and a part B, the
Applicant moves
in part A for certain urgent relief pending the final
determination of a review application, the prayers of which are
contained
in part B. This court is therefore only seized with the
determination of part A, although the Applicant’s prospects of
success
in the later review proceedings stand to be considered in the
determination of part A.
[3]
On review the Applicant moves for the review and setting aside of the
First Respondent’s
decision to terminate the agreement on 1
December 2023, to award a contract to the Third Respondent, and any
service level agreement
that may be concluded between the First and
Third Respondents. Pending the outcome of this review, the Applicant
moves for certain
urgent relief,
inter alia
that the First
Respondent be interdicted from taking any further steps towards the
termination of the agreement, from implementing
further effect to the
award made to the Third Respondent and from concluding any contract
with the Third Respondent for the provision
of security services.
[4]
Unlike most urgent applications where legal intricacies play a large
part in the determination
thereof, practical considerations relating
to the urgent relief sought in the present application are of
paramount importance.
In this respect clause 4.1 of the agreement
stipulates that the agreement shall commence on 1 January 2023,
renewable annually
for a period of three years up to 31 December
2025. The agreement does not set out the circumstances under which
the agreement
may or may not be renewed annually. The fact remains
that the
First Respondent may elect not to renew the agreement
in two weeks’ time. In my view, this is what will happen in all
probability,
since it had already decided to terminate the agreement
on 1 December 2023.
[5]
Assuming for the moment that the Applicant will be successful in its
review application
for the setting aside of the termination of the
agreement on 1 December 2023, such setting aside will have no
influence on the
likely decision of the
First Respondent at
the end of December 2023 not to renew the agreement. The setting
aside will therefore only have a practical
impact for a very limited
period of time. At the same time, if the urgent relief is granted,
such relief will not extend beyond
the end of December 2023. It will
only be effective for a period of some two weeks, which period
includes the coming festive season.
[6]
This outcome has a serious effect on the urgency of the application.
It speaks for
itself that the relief sought in part A can never be
urgent if it would in all probability only be effective for two
weeks. I therefore
come to the conclusion that the Applicant has not
shown urgency. Should it suffer any damages during the two weeks
leading up to
1 January 2024, it may claim such damages from the
First Respondent, if it elects to do so. In any event, the
Court cannot interdict the First Respondent from taking any further
steps
towards termination of the agreement, in view of the provisions
of clause 4.1.
[7]
The following order is made:
1.
The application is removed from the roll for want of urgency.
2.
Applicant
to pay the wasted costs
occasioned by the removal.
P.J.
LOUBSER, J
On
behalf of the applicant:
Adv.
C.D. Pienaar
Instructed
by:
Woodhead
Bigby Inc, La Lucia
c/o
Lovius Block Inc.
, Bloemfontein
On
behalf of the first and second respondents:
Adv.
S.J. van Rensburg SC
Instructed
by:
Ntleru
Inc. Attorneys, Pretoria
c/o
Amade and Company Inc.,
Bloemfontein
/roosthuizen