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[2021] ZAGPPHC 41
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Afrocentric Projects and Services (Pty) Ltd t/a Innovative Distribution v State Information Technology Agency SOC Limited and Others (81609/19) [2021] ZAGPPHC 41 (29 January 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION PRETORIA
(1)
REPORTABLE: NO
(2)
OF INTEREST TO OTHER JUDGES: NO
(3)
REVISED.
29
JANUARY 2021
CASE
NO: 81609/19
In
the matter between: -
AFROCENTRICS
PROJECTS AND SERVICES (PTY)
LTD
t/a INNOVATIVE DISTRIBUTION
Registration
No.
2012/119655/07
Applicant
and
STATE
INFORMATION TECHNOLOGY AGENCY
SOC
LIMITED
Registration
No.
1999/001899/30
First Respondent
MICRO
FOCUS SOFTWARE (IRELAND) LIMITED
Registration
No.
IE223694
Second
Respondent
AXIZ
(PTY) LIMITED
Third
Respondent
XUMA
TECHNOLOGIES t/a TELECOMS
Registration
No. 2004/006551/07
Fourth Respondent
DEPUTY
MINISTER OF COMMUNICATIONS
AND
DIGITAL TECHNOLOGIES
Fifth
Respondent
MINISTER
OF FINANCE
Sixth Respondent
THE
DIRECTOR-GENERAL DEPARTMENT
OF
NATIONAL TREASURY
Seventh
Respondent
JUDGMENT
MADIBA
AJ
[1]
Afrocentrics Projects Services (Pty) Ltd t/a Innovative Distribution
(Afrocentrics)
launched an application against the seven Respondents
under
case number 81609 / 2019 (main application).
It
seeks the following relief as per Part A and Part B of the notice
motion:-
Part
A
1.
“
Pending the finalisation of the application
contemplated in Part B of
this
Notice of Motion, the framework Agreement entered into between
the
First and Second Respondent (‘the Framework Agreement”),
effective
1 November 2017 and any agreement arising therefrom are
hereby
suspended;”
2.
…
Part
B
Reviewing,
declaring invalid and setting aside the Framework Agreement
entered
into between the First and Second Respondents (“the Framework
Agreement”),
effective 1 November 2017 (and consequently any
agreement
arising out of the Framework Agreement) to the extent that it
relinquishes
the First Respondent’s procurement mandate to the Second
Respondent;
Reviewing,
declaring invalid and setting aside the Fulfilment Agent
Agreement
entered into between the Second Respondent and the
Applicant
(“the Fulfilment Agent Agreement”) to the extent that it
provides
that
the Second Respondent can terminate the Fulfilment Agent
Agreement
for convenience;
Reviewing,
declaring and setting aside the Micro Focus Partner Base
Terms
(“the Micro Focus Partner Agreement”) to the extent that
it provides
that
the Second Respondent can terminate the Micro Focus Partner
Agreement
without cause;
Reviewing,
declaring invalid and setting aside the Second Respondent’s
decision
(and the subsequent termination notices dated 3 July 2019) to
terminate
the Fulfilment Agent Agreement and the Micro Focus Partner
Agreement;
Declaring
that the conduct of the Second Respondent in terminating the
Applicant’s
Fulfilment Agent Agreement and the Micro Focus Partner
Agreement
“without cause” and, ostensibly, “for convenience”
of the end-
user
of the service, is unfair, arbitrary and capricious and so in
violation of
Section
217 91) of the Constitution of the Republic of South Africa, 108 of
1996;
In
the event of a declaration in prayer 5 above, directing that
6.1
clause 12 (b) of the Fulfilment Agent Agreement shall
substitute the
words
“on good and just cause shown” for the words “for
convenience”
so as to bring it in line with letter and spirit of the
Constitution
as follows:
“
12
Term and termination
. These terms and conditions
shall apply to
You
for a period of 3 years from the Effective Date.
(a)
…
(b)
Termination
for Convenience. Micro Focus may terminate Your
Appointment
hereunder
on good and just cause shown
upon giving
you
at least 30 days’ prior written notice.”
6.2
Clause 9 of the “Micro Focus Partner Agreement”
shall substitute
the
words “on good and just cause shown” for the words
“without
cause”
so as to bring it in line with the letter and spirit of the
Constitution
as follows:
“
9
TERM AND TERMINATION
(a)
This
Agreement and any related LIAs will remain in effect until
terminated.
(b)
Either
party may terminate this Agreement and / or individuals LIAs on
good
and just cause shown at any time upon (30) days prior written
notice
to the other party.
Termination
of this Agreement will automatically operate as termination
of
all LIAs entered into hereunder.”
Declaring
that the Framework Agreement, Fulfilment Agent Agreement
and
the Micro Focus Partner Agreement frustrates the achievement of the
objects
of the Broad-Based Black Economic Empowerment Act, 53 of
2003
(“the
B-BBEE Act”)
which was enacted specifically
to give effect to
Sections
9(2) and 217 (3) [read together with section 217 (2)] of the
Constitution
of the Republic of South Africa, 108 of 1996 and is / are
unconstitutional
to the extent that they relinquish the First Respondent’s
procurement
mandate to the Second Respondent and / or provides that
the
Second Respondent has the sole discretion to appoint and terminate
the
Applicant as an additional fulfilment agent.
Declaring
that the conduct and / or decision of the Second Respondent to
terminate
the Applicant as an additional fulfilment agent frustrates the
achievement
of the objects of the B-BBEE Act which was enacted
specifically
to give effect to Sections 9(2) and 217(3) [read together with
section
217 (2)] of the Constitution of the Republic of South Africa, 108 of
1996
and is /are unconstitutional.
Declaring
that the conduct and / or decision of the Second Respondent to
terminate
the Applicant as an additional fulfilment agent impinge/s on the
Applicant’s
owners right to human dignity and is/are unconstitutional;
Declaring
that the conduct and /or decision of the Second Respondent to
terminate
the Applicant as an additional fulfilment agent constitutes
collusive
behaviour and/or abuse of dominance;
Directing
the Second Respondent to compensate the Applicant with the
revenue
the Applicant would have derived had the Second Respondent
not
terminated the Fulfilment Agent Agreement and the Micro Focus
Partner
Agreement;
Directing
the First Respondent and Second Respondent to restore the
status
quo had the Applicant not been terminated;
Costs;
Further
and/or alternative relief.”
[2]
Micro Focus Software instituted an application in terms of Uniform
Rules
30 (1), 30A (1) b and 6 (11) against the applicant in the main
action.
[3]
The relief sought by Micro Focus Software is to set aside as
irregular
and
improper proceedings, the notice of motion issued by Afrocentrics and
alternatively
that the main application be struck out in terms of Rule 30A
(1)
(b).
[4]
Afrocentrics is opposing the application on the basis that it is
meritless,
frivolous
and that Rule 30 is not competent for the issues as raised by
Micro
Focus Software.
FACTUAL
BACKGROUND
[5]
The 1
st
and 2
nd
Respondents in the main
application (Micro Focus
Software
and SITA) concluded an agreement hereafter referred to as “SITA
Agreement” for the procurement by organs of
state of ICT
software and related services.
[6]
Among the other material terms of the SITA AGREEMENT were that the
3
rd
Respondent, AXIS (Pty) LIMITED was appointed as the
Fulfilment Agent.
[7]
Its obligations were to assist the organs of the state with their
administration,
orders and payment.
[8]
Micro Focus Software was
entitled to appoint additional Fulfilment Agents.
It
accordingly appointed Afrocentrics as an additional Fulfilment Agent.
[9]
A Partner Agreement was subsequently entered into between Micro Focus
Software
and Afrocentrics. The purpose of the Partner Agreement was to
enable
Afrocentrics to access information relevant in terms of the SITA
Fulfilment
Agreement.
[10]
The Fulfilment Agreement and the Partner Agreement between Micro
Focus
Software and Afrocentrics were terminated at the instance of Micro
Focus
Software during 3 July 2019.
[11]
As a result of the termination of the agreements between Micro Focus
Software
and Afrocentrics, Afrocentrics launched an application
seeking
various relief as aforementioned.
ISSUES
FOR DETERMINATION
[12]
1) Whether the issues raised by the Applicant (Micro Focus Software)
are
competent under Rule 30 and Rule
30A.
2)
Whether the application by Afrocentrics is compliant with Uniform
Rules
6 and 53.
3)
Whether paragraphs 5, 7, 13, 14 and 55 of Afrocentrics’
opposing
affidavit be struck out.
4)
Whether Micro Focus Software complied with the requirements of Rule
30.
[13]
Micro Focus Software causes of complaint against Afrocentrics’
notice
of
motion are tabulated as follows: -
i)
That the relief sought by Afrocentrics is contradictory
and mutually
destructive,
ii)
The challenge on the validity of SITA’s procurement mandate
by
Afrocentrics is baseless;
iii)
The relief sought by Afrocentrics under Uniform Rule 53 is not
competent
under the circumstances;
iv)
Micro Focus Software challenges the competence of the declaratory
relief
sought by Afrocentrics;
v)
The irregularity of Afrocentrics’ claim for damages.
APPLICATION
IN TERMS OF RULE 6 (15) OF THE UNIFORM RULES OF
COURT
[14]
Micro Focus Software launched an application to strike out paragraphs
5,
7,
13, 14 and 55 of Afrocentrics’ affidavit.
It
is alleged that the said paragraphs are scandalous, vexatious and
irrelevant
and thus prejudicial to Micro Focus Software.
Rule
6 (15) provides that the court may strike out from any affidavit any
matter
which is scandalous, vexatious or irrelevant if satisfied that the
Applicant
will be prejudiced if not granted.
[15]
The Applicant has to fulfil the following requirements for it to
succeed: -
i)
That the matter sought to be struck out must indeed be
scandalous,
vexatious and irrelevant.
ii)
The court is to be satisfied that if such matter is not struck
out,
the parties
seeking
such relief would be prejudiced.
(See
Beinash v Wixley
[1997] ZASCA 32
;
1997 (3) SA 721
(SCA) at 733B
).
[16]
Afrocentrics did not oppose the application to strike out the
aforementioned paragraphs.
[17]
Micro Focus Software contended that the contents of paragraphs 5, 7,
13,
14
and 55 of Afrocentrics’ opposing affidavit constitute
unwarranted
abusive
attacks which are intended to harass, annoy and cloud the real
issues
between the parties.
[18]
It further submitted that the allegations are unsubstantiated,
baseless and
irrelevant
and as such prejudicial and also defamatory to Micro Focus
Software
and its personnel.
[19]
I find that the contents of paragraphs 5, 7, 13, 14 and 55 are indeed
scandalous,
vexatious and irrelevant and do not contribute to the
determination
of the issue between the parties.
Micro Focus Software will be
prejudiced if its application is not granted.
[20]
I am satisfied that a case for striking out in terms of Rule 6 (15)
has been
made
out and accordingly strike out paragraphs 5, 7, 13, 14 and 55 of
Afrocentrics’
opposing affidavit.
In the circumstances, no order as
to costs is warranted.
ANALYSIS
AND LEGAL PRINCIPLES FINDING APPLICATION
[21]
Rule 30 (1) of the Uniform Rules provides that
any party to any
cause in
which
an irregular or improper step has been taken may apply to court to
set
it aside.
[22]
If the court is of the view that the proceedings or step is irregular
or
improper
it may set it aside in whole or in part, and may grant leave to
amend
or make any other appropriate order.
[23]
The application in terms of Rule 30 may only be made if the applicant
has
by
written notice afforded its opponent an opportunity to remove the
cause
of
complaint within 10 days and thereafter delivers an application at
the
expiry
date of those 10 days.
[24]
Since the application to set aside an irregular proceeding or step is
an
interlocutory
application, Rule 6 (11) of the Uniform Rules finds
application.
[25]
It is worth mentioning that the applicant did request Afrocentrics to
comply with the provisions
of Rule 30 (2) and Rule 30 A (1) and
Afrocentrics did not remove the cause of complaint or withdraw the
main application.
[26]
As a result thereof, Micro Focus Software launched an application in
terms
of
Rule 30(1), Rule 30A(1) (2) and Rule 6(11) of the Uniform Rules of
court.
[27]
The application by Micro Focus Software is opposed on the basis that
Rule
30 is not competent to assist Micro Focus Software as it is intended
for
matters of form not of substance.
[28]
Afrocentrics contended that Micro Focus Software is actually and
effectively
alleging that the notice of motion (main application) by
Afrocentrics
is vague and embarrassing or fails to disclose a cause of
action.
According to Afrocentrics, Rule 30 proceedings are competent
herein.
[29]
It is Afrocentrics’ contention that Micro Focus Software listed
five grounds
which
it alleged rendered Afrocentrics’ main application irregular
and
improper.
The five grounds are repeated here for the sake of
completeness:
i)
That Afrocentrics failed to comply with the Rule 53;
ii)
That the claims by Micro Focus Software is mutually destructive
and
contradictory;
iii)
The competency of the damage claim;
iv)
The declaratory relief sought by Afrocentrics;
v)
The challenge on the competence for the relief sought under
Rule
53
and the validity of SITA’s procurement mandate.
[30]
The only ground allegedly listed by Micro Focus Software is that the
relief
sought
by Afrocentrics in the main application is not competent under Rule
53
of the Uniform Rules of court.
[I
will return to Rule 53 at a later stage]
[31]
Failure by Micro Focus Software to give notice to their four grounds
listed
as
the basis of lodging Rule 30 application makes Micro Focus Software
guilty
of not complying with the provisions of Rule 30 and therefore Micro
Focus
Software abuses the court process in this instance so submitted
Afrocentrics.
[32]
According to Micro Focus Software, Part A of Afrocentrics’
application is
not
a separate part to the main application but it is a prayer seeking to
suspend
the SITA Agreement and it contradicts the relief sought under
Part
B.
[33]
Micro Focus Software further contended that the relief by
Afrocentrics was
supposed
to have been sought in the alternative and its failure to do so is
contradictory
and mutually destructive.
[34]
It is submitted by Micro Focus Software that Afrocentrics omitted to
provide
any factual or legal basis for the relief it seeks under PART A and
PART
B.
[35]
Rule 30 is intended at removing impediments which will hinder the
future
conduct
of the matter.
[36]
It was held in
SA Metropolitan Lewensversekeringsmaatskappy
Bpk
v
Louw
NO
1981 (4) SA 329
(0) at 333G-H
as follows: -
“
I have no doubt that
Rule 30(1) was intended as a procedure whereby a
hindrance
to the future conducting of the litigation, whether by a non-
observance
of what Rules of court intended or otherwise, is removed. A
party
who takes a procedural step which advances the finalization of the
case
may not, unless he is unaware of the irregularity, ask for the
setting
aside
of the relevant irregularity.”
[37]
The irregularities aimed by Rule 30 are those pertaining to form and
not
substance.
See
Singh v Vorkel
1947 (3) SA 400
C at 406.
[38]
Afrocentrics contends that the complaints by Micro Focus Software are
matters
of substance and are not competent under Rule 30 and Micro
Focus
Software is to file its answering affidavit to the main application
by
Afrocentrics
instead of resorting to delaying tactics by raising non
observance
of Rule 30.
[39]
It is submitted by Afrocentrics that the framework agreement between
SITA
and Micro Focus Software must be suspended as it goes to the
heart
of its main application and will go a long way in protecting its
constitutional
rights.
[40]
However Rule 30 makes it clear in no uncertain terms that any
irregular
proceedings
may be attacked under Rule 30 and the court is empowered
to
set aside such irregular proceeding
including the complaint
that goes
to
the heart of the application
(own emphasis).
[41]
Unfortunately the court in
Singh v Vorkel
did
not decide the issue
whether
Rule 30 is a competent procedure to deal with irregularities going
to
the root of a claim. I am inclined not to follow the obiter in
Singh
v
Vorkel
relating to the issue of form or substance as raised therein.
See
Deputy Minister of Tribal Authorities and Another v Kekana
1983
(3) SA 492
(B
).
[42]
Despite Afrocentrics’ submission that it’s Part A of the
notice of motion is
an
interim relief, it fails in my view, to comply with Rule 6 of the
Uniform
Rules as it fails to set forth time periods for exchange of
affidavits
apart
of those entailed in its Part B and no provision is made for the
appointment of an address within 15 kilometres from the court
premises and the above are issues of form. However, Afrocentrics did
at a later stage provide an address within 15 km radius. I
find no
reason why Micro Focus Software cannot resort to Rule 30 and Rule 30A
as it is competent under the circumstances.
[43]
The assertion that Micro Focus Software failed to give notice to the
other
four grounds it listed as
irregular proceedings in the attack to Afrocentrics’
main
application, not only amounts to the abuse of the court process but
also
is guilty of non-observance of Rule 30 so contended Afrocentrics.
[44]
Reading of Micro Focus Software’s affidavit regarding Rule
30(2)(b) and
Rule
30(A)(1) and its replying affidavit to Afrocentrics’ answering
affidavit,
I
conclude that it encompasses in detail the cause of complaint in
Afrocentrics’
main application.
[45]
The assertion that Micro Focus Software failed to observe the
requirements
of Rule 30 and thus is guilty of the abuse of court process is
accordingly
rejected.
[46]
The concepts of abuse and what constitutes irregular proceedings are
two
separate
concepts.
[47]
The purpose of the Rules of court is to ensure a fair hearing and to
secure
inexpensive
and expeditious finalisation of matters before the courts.
In
Eke v Parsons
2016 (3) SA 37
CC at par 39
the court, when
confirming
the adage that rules exist for the courts and not the courts for
the
rules, held that rules should not be observed for their own sake.
[48]
The court in
PFE International Inc (BVI) and Others v
Industrial
Development
Corporation of South Africa Ltd
2013 (1) SA
CC
stated
that
thus: -
“
Since
the rules are made for the courts to facilitate the adjudication of
cases,
the superior courts enjoy the power to regulate their process,
taking
into account the interest of justice. It is this power that makes
every
superior
court the master of its own process. It enables a superior court to
lay
down a process to be followed in particular cases, even if that
process
deviates
from what its rules prescribe. Consistent with that power, the
court
may in the interest of justice depart from its own rules.”
[49]
It is not a peremptory requirement to file a notice and the court may
in any
event
condone such an omission by any of the litigants.
[50]
I, under the circumstances of this matter, hold that it is in the
interest of
justice
that the five grounds enlisted by Micro Focus Software be dealt
with
in this application as complaints raised in terms of Rule 30 and
Rule
30 A of the Uniform Rules.
THE
RELIEF SOUGHT BY AFROCENTRICS UNDER UNIFORM RULE 53
[51]
Micro Focus Software contends that Part B of Afrocentrics’
notice of
motion
purports to be a notice of motion in terms of Rule 53 but fails to
meet
the requirements as prescribed.
[52]
According to Micro Focus Software, part B does not identify the
decision
or
proceedings of any inferior court or of any tribunal, board or
officer
performing
judicial, quasi-judicial or administrative functions that could be
reviewed
in terms of Rule 53.
[53]
It is further contended by Micro Focus Software that Afrocentrics
asserts
that
its main application is brought in terms of the Promotion of
Administrative
Justice Act 2000 (PAJA) in that SITA is an organ of state
and
Micro Focus Software as a juristic person, exercising a public power
or
performing a public function in terms of national legislation acted
in
breach
of PAJA.
Micro
Focus Software further submitted that Afrocentrics failed to provide
any
detail of the alleged conduct performed by Micro Focus Software that
amounts
to the exercise of a public power or public function in terms of the
national
legislation.
[54]
Afrocentrics on the other hand, submits that it has in fact pleaded
its
factual
and legal basis in its founding affidavit in the review application
where
it seeks an order reviewing, declaring invalid and setting aside
Micro
Focus Software’s decision to terminate the Fulfilment Agent
Agreement
and the Micro Focus Software’s Partner Agreement.
It
submits that Micro Focus Software must meet the requirements of
legality
and rationality and must be consistent with the constitution.
Rule
53(1) provides as follows: -
(1) Save where any law
otherwise provides, all proceedings to bring under
review
the decision (s) or proceedings of any inferior court and of any
tribunal,
board or officer performing judicial, quasi-judicial or
administrative
functions shall be by way of notice of motion directed
and
delivered by the party seeking to review such decision or
proceedings
to the magistrate, presiding officer or chairman of the
court,
tribunal or board or to the officer, as the case may be, to all other
parties
affected-
(a) calling upon such
persons to show cause why such decision or
proceedings
should not be reviewed and corrected or set side, and
(b) calling upon the
magistrate, presiding officer, chairman or officer,
as
the case may be, to despatch, within fifteen days after receipt of
the
notice of motion, to the registrar the record of such proceedings
sought
to be corrected or set aside, together with such reasons as
he
is by law required or desires to give or make, and to notify the
applicant
that he has done so.
(2) The notice of
motion shall set out the decision or proceedings sought
to
be reviewed and shall be supported by affidavit setting out the
grounds
and the facts and circumstances upon which applicant relies
to
have the decision or proceedings set aside or corrected.
[55]
The court in
Jockey Club of SA v Forbes
[1992] ZASCA 237
;
1993 (1) SA 649
(A) at 662 G-
H
held that the purpose of Rule 53 is not to protect the decision
maker, but
to
facilitate applications for review to ensure their speedy and orderly
presentation.
[56]
It is a requirement under Rule 53 that the applicant in its notice of
motion
should
set out the decision or proceedings sought to be reviewed and that
it
shall be supported by an affidavit setting out the grounds and the
facts
and
circumstances upon which the applicant relies to have the decision or
proceedings
set aside or corrected.
[57]
My finding is that Afrocentrics failed to comply with the
aforementioned
requirements.
I am of the view that Micro Focus Software will suffer
prejudice
and will be adversely affected by a non-compliance of the
requirements
of Rule 53.
[58]
Micro Focus Software being a private company, Afrocentrics cannot
utilise
Rule
53 under the circumstances of this matter. Micro Focus Software and
Afrocentrics
entered into a private agreement (Additional Fulfilment
Agreement)
and accordingly, the termination of the said agreement does
not
fall within the ambit of an administrative action.
Due to the contradictions and
mutually destructive relief as sought out by
Afrocentrics’
under its Part A and Part B I find that Rule 53 has no
application
herein.
[59]
The contention by Aforcentrics that its review application is in
terms of the
Promotion
of Administrative Justice Act 2000 (PAJA) is rejected as it lacks
factual
and legal basis regard having had to its application.
CLAIM
FOR DAMAGES
[60]
Afrocentrics’ claims for damages is in fact based on the notion
of what it
would
have earned had its Fulfilment Agreement with Micro Focus
Software
not been terminated.
[61]
The submission by Afrocentrics is that its claim is for compensation
and
not
for damages as alleged by Micro Focus Software. The claim for
compensation
is as a result of the unlawful and unconstitutional
termination
of its Fulfilment Agreement so argued Afrocentrics.
[62]
It is telling that from the reading of the papers herein, one cannot
off hand
determine
the nature of the damages claimed. As a consequence thereof,
Micro
Focus Software is disadvantaged as it could not properly respond.
More
so one cannot glean from the papers what the cause of action is for
the
claim for damages.
DECLARATORY RELIEF SOUGHT
[63]
Micro Focus Software contends that Afrocentrics’ declaratory
relief is
incompetent
as it is non-compliant with the elements of a declaratory.
[64]
On the other hand, Afrocentrics’ submission is that what Micro
Focus
Software
raises herein is a matter it should address in its answering
affidavit.
It contends that it has in fact fulfilled the elements for a
declaratory
and that Micro Focus Software will suffer no prejudice.
[65]
Section 19 (1) (a) (iii) of the Supreme Court Act provides as
follows: -
19(1) (a) A provincial or local
division shall have jurisdiction over all
persons
residing or being in and in relation to all causes arising and all
offences
triable within its area of jurisdiction and all other matters of
which
it
may according to law take cognisance, and shall subject to the
provisions
of ss (2), in addition to any powers or jurisdiction which may be
vested
in it by law, have power-
i.
…
ii.
…
iii.
in its discretion, and at the instance of any interested person,
to
enquire
into and determine any existing, future or contingent right
or
obligation, notwithstanding that such person cannot claim any
relief
consequential upon the determination.
[66]
The question whether a declaratory order is to be made or refused
rests
on
the following approach: -
i)
The court must be satisfied that the applicant has an
interest in an
existing, future or contingent
right or obligation;
ii)
The discretion by the court to either grant or refuse the order
sought if
satisfied
that the conditions in (i) above, have been proven;
iii)
The declaratory relief sought by the Afrocentrics is indeed not
competent
in view of the averments
contained in its application.
[67]
There is no basis for the contention that the termination of the
Fulfilment
Agreement
entered into between the parties is unfair, arbitrary and
capricious
as it violates Section 217 of the constitution. Further that it
infringes
upon Afrocentrics’ right to human dignity undermining the
B-BBEE
Act and that its conduct amounts to collusive behaviour and
abuse
of dominance. The collusive allegation is best suited for the
competition
commission.
Such
concerns did not arise as aforementioned when Afrocentrics was still
an
additional Fulfilment agent.
It is not enough for Afrocentrics
to simply allege that it’s right to human
dignity
and its constitutional rights were contravened.
In the premises, I am not
satisfied that Afrocentrics has satisfied the
elements
of the declaratory relief it seeks.
MUTUALLY
DESTRUCTIVE AND CONTRADICTORY RELIEF
[68]
Micro Focus Software’s contention is that Afrocentrics’
claims in the main
application
are contradictory and mutually destructive and impossible to
respond
thereto.
The
end result thereof is that Micro Focus Software submitted that it is
unable
to determine which case by Afrocentrics is to be met.
[69]
According to Micro Focus Software the relief sought by Afrocentrics
was
supposed
to have been sought in the alternative and not sought
simultaneously
as Afrocentrics did, resulting in Micro Focus Software
being
prejudiced. It submitted that there is in fact a dispute of facts in
the
main
application by Afrocentrics.
[70]
Afrocentrics denies that its claims are contradictory and mutually
destructive.
It
is submitted by Afrocentrics that the suspension of the Fulfilment
Agreement
in its Part A of its main application is for an interim relief
pending
finalisation of its Part B of its notice of motion.
The assertion by Afrocentrics is
that the relief sought in Part B is not
contradictory
and mutually destructive as they complement each other.
Afrocentrics
submitted that the court has wide remedial power to decide a
constitutional
matter and make any other order which is just and equitable.
What Micro Focus Software has to
do is to file its answering affidavit to the
main
application and the court will make a determination based on the
merits
of the matter.
[71]
Afrocentrics’ contention is that whether or not there arise
material bona
fide
disputes of facts in motion proceedings is not a matter to be
determined in terms of Rule 30 and submitted that there are in
fact
no material and bona fide disputes of fact in its application. It
called upon Micro Focus Software to raise such issues of
disputes of
fact in its answering affidavit.
It is not sufficient for the
applicant to simply state that its relief sought in
Part
A is intended to mitigate its losses and to uphold its constitutional
rights.
More is expected from Afrocentrics to explain and elaborate on its
assertion
for the relief sought in Part A. The constitutional issues and
concerns
were only raised after the termination of Afrocentrics as an
Additional
Fulfilment agent and such issues were not raised during the
operation
of the Additional Fulfilment Agreement.
[72]
I find that for Afrocentrics to seek the suspension of the SITA
Agreement
and
in the same breath seeks for the directive to restore the status quo
between
SITA and Micro Focus Software to be indeed contradictory and
mutually
destructive.
Equally so it is contradictory
and mutually destructive for Afrocentrics to
pray
for a review and a declaratory order against the SITA Agreement,
SITA
Fulfilment Agreement and Partner Agreement alleging that it
frustrates
the objects of Broad Based Black Economic Empowerment
Act 53 of 2003 and it is
unconstitutional as it gave Micro Focus Software
the
sole discretion to decide whether to appoint or terminate any
Additional
Fulfilment agent.
[73]
Afrocentrics also seeks an order declaring under Part B that by
terminating
the SITA Fulfilment Agreement and Partner Agreement Micro
Focus
Software contravened Section 217 of the Constitution and if
successful
with this prayer, the court should insert certain clauses to
comply
with the constitution. On the other hand, Afrocentrics seeks the
enforcement
of the agreements it deems unconstitutional, in contravention
of
the Broad Based Black
Empowerment Act and
State Information
Technology
Agency Act 88 of 1998
and seeks damages.
[74]
I do not agree that the claims in PART A and PART B of Afrocentrics’
relief
complement each other.
The
relief sought is inconsistent and Micro Focus Software is left with a
choice
of electing which of the rights alleged therein is to pursue.
It
might indeed be so that inconsistent claims may be in the alternative
provided
that the other party is not embarrassed and prejudiced
Afrocentrics
did not seek its relief in the alternative but simultaneously
sought
such relief as I have already found.
See
Kragga Kamma Estate CC & Another v Flamagan
1995 (2) SA
367
(A) at 374 H-I
[75]
My view is that one cannot seek an interim relief on an agreement
that it
alleges
is invalid, unconstitutional and in contravention of BBBEE Act and
SITA
Act.
[76]
I conclude that the application of Afrocentrics in the main
application is
irregular
and improper.
[77]
Micro Focus Software is entitled to be informed of the case it is
required to
meet.
[78]
It was held in
Naidoo v Sunker
[2011] ZA
SCA 216
paragraph 19
that: -
“
In application
proceedings the notice of motion and affidavits define the issues
between
the parties and the affidavits represent their evidence. If an issue
is not
cognisable
or derivable from these sources there is little or no scope for
reliance
on
it. It is a fundamental rule of fair civil proceedings that parties,
both plaintiffs
and
defendants, should be appraised of the case which they are required
to
meet;
one of the manifestations of the rule is that he who relies on a
particular
section
of a statute must either state the number of the Section and the
statute,
or
formulate his case sufficiently clearly so as to indicate what he
relied on.”
[79]
The relief sought in the main application of Afrocentrics is
impossible to
understand
and respond properly thereto.
Micro
Focus Software is thus prejudiced in the further conduct of its
litigation.
[80]
I accordingly find that Micro Focus Software has demonstrated that
non
observance
of Rule 30 by Afrocentrics is adverse and prejudicial to its
cause
and to a further conducting of its litigation if the irregular steps
complained
of are not removed.
[81]
The court in
Fischer and Another v Ramahlele and Others
2014 (4) SA
614
SCA paragraph 13
found as follows: -
It is for the parties in the
pleadings or affidavits (which serve the function
of
both the pleadings and evidence) to set out and define the nature of
the
dispute
and it is for the court to adjudicate upon those issues that is to
ever
where the dispute involves an issue pertaining to the basic human
rights
guaranteed in the constitution for “it is impermissible for a
party to
rely
on a constitutional complaint that was not pleaded”. There are
cases
when
the parties may expand those issues by way in which they conduct
the
proceedings. There may also be instances where the court may mero
motu
raise a question of law that emerges fully from the evidence and is
necessary
for the decision of the case. That is subject to the proviso that
no
prejudice will be caused to any party by it being decided. Beyond
that it
is
for the parties to identify the dispute and for the court to
determine that
dispute
and that dispute alone”
[82]
Afrocentrics failed to pass muster in this regard. It raised issues
of human
dignity
and infringement on its constitutional rights without further
explaining
the basis thereof.
Its
relief as aforementioned are mutually destructive, contradictory and
inconsistent.
[83]
Afrocentrics’ main application is therefore irregular and
improper.
[84]
Consequently the following order is made: -
1) The
applicant’s main application is irregular and improper;
2) The
applicant to pay the costs of the application inclusive of the costs
of
two
counsel.
MADIBA SS
ACTING
JUDGE OF THE GAUTENG DIVISION, PRETORIA
Appearances:
Applicant’s
Counsel
:
Advocate Farzanah Karachi
Applicant’s
Attorneys
:
Gwina
Attorneys Incorporated
Second
Respondent’s Counsel :
Advocate
Michelle Le Roux SC
Advocate
Kathleen Hardy
Second
Respondent’s Attorneys :
Werksmans
Attorneys
Date
of hearing
: 29 July
2020
Date
of judgment
: 29 January 2021