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2024
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[2024] ZAGPJHC 375
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Instrument Transformer Technologies (Pty) Ltd v Eskom Holdings Soc Limited and Others (18623-2020) [2024] ZAGPJHC 375 (16 April 2024)
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT of south
africa
GAUTENG DIVISION, JOHANNESBURG
CASE NUMBER
:
2020/18623; 2020/18624 & 2020/18626
1.
Reportable: No
2.
Of interest to other judges: No
3.
Revised
16
April 2024
In the matter between:
INSTRUMENT
TRANSFORMER TECHNOLOGIES (PTY) LTD
Applicant
and
ESKOM
HOLDINGDS SOC LIMITED
1
st
Respondent
YURISHA
PILLAY
2
nd
Respondent
LERATO
MORIFE
3
rd
Respondent
ACTOM
HIGH VOLTAGE EQUIPTMENT (PTY) LTD
4
th
Respondent
JUDGMENT
WRIGHT J
[1]
There are three related applications before
me. While there has been no formal consolidation, it is common cause
that the applications
effectively cover the same territory.
[2]
The first respondent, Eskom called for
tenders relating to the supply of certain equipment to Eskom. The
successful tenderer was
Actom, the fourth respondent. Instrument, an
unsuccessful tenderer is the applicant. The second and third
respondents, Ms Pillay
and Ms Morife work for Eskom and were involved
in the tendering process.
[3]
On 29 July 2020, Instrument launched a
review application. It sought to review the decision by Eskom to
disqualify it from the tender
process and it sought to set aside the
award of the tender to Actom.
[4]
On 4 August 2020 Instrument sought to amend
its notice of motion to add a prayer for an order that part of the
award to Actom be
reconsidered by Eskom.
[5]
It is common cause that three contracts,
each for a period of four years, were awarded to Actom consequent
upon its successful tender.
It is further common cause that these
contracts end on 14 May 2024, that is one month from the second day
of the hearing of this
matter, today 16 April 2024.
[6]
It is thus beyond doubt that the
applications are moot. The contracts have been implemented. It would
be unwise to attempt to reverse
the flow of the water which has
passed under the bridge.
[7]
Because the three applications are moot, a
High Court may not consider the merits of the application further.
See
Solidariteit Helpende Hand NPC and
others v Minister of Co-operative Governance and Traditional Affairs
2023 JDR 0964 ( SCA )
31 March 2023 at
paragraphs 18-21.
[8]
Regarding costs, the present applications
were launched about two months after the three contracts had
been agreed. It seems
trite that, other things being equal, the
longer such contracts are in existence and are implemented, the
stronger becomes the
case for mootness.
[9]
As early as 25 November 2020, some four
months after the applications had been launched, Eskom, through its
attorney offered to
have Eskom reconsider Instrument’s bids.
There is some suggestion that this letter may originally have been
part of settlement
negotiations and might have been privileged for
that reason. However, this letter was placed before court by
Instrument so it cannot
contend that I may not take it into account.
[10]
Instrument, instead of diligently working
with Eskom to go about a reconsideration by Eskom, dragged its feet
in prosecuting these
applications. Instrument persists with its
applications, as late as today, 16 April 2024. Punitive costs follow.
[11]
The time between the launching of the
applications and the letter of 25 November 2020 is so short that in
the circumstances of this
matter it does not play an appreciable part
in the question of costs.
ORDER
[1] The applications are dismissed.
[2] In all three applications the
applicant is to pay the respondents’ costs, including
those of two counsel, both for the
first to third respondents and for the fourth
respondent, where so employed,
including the costs of the hearing on 15 and 16
April 2024.
[3] All costs to be on the scale as
between attorney and client.
WRIGHT J
JUDGE OF THE HIGH COURT
GAUTENG DIVISION, JOHANNESBURG
Heard
on:
15 and 16 April 2024
Delivered
on:
16 April
2024
Appearances:
Applicants:
Adv Phazha Jimmy Ngandwe
076 248 0368
Ngandwepj@gmail.com
Adv Keneilwe
Lefaladi
064 750 7905
keneilwe@lefaladi.co.za
Instructed by:
Monyemorathoe
Attroenys Inc
gideon@monyemorathoe.co.za
082 332 5585
1
st
- 3rd Respondents:
Adv AD Stein SC
072 395 5559
astein@group621.co.za
Adv Michelle
Augustine
083 382 3790
augustine@alumni.nd.edu
Instructed by:
Cheadle Thompson
Heyson Inc
011 403 2765
Karien@cth.co.za
4
th
Respondent
Adv A Friedman
Adv
D Sive
Instructed by
Norton
Rose Fulbright
J
Bell
John.Bell@nortonrosefulbright.co.za