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[2019] ZAGPPHC 89
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Moipone Fleet (Pty) Ltd v City of Tshwane Metropolitan Municipality and Another (16285/2019) [2019] ZAGPPHC 89 (28 March 2019)
IN THE HIGH COURT OF SOUTH
AFRICA
(GAUTENG DIVISION, PRETORIA)
(1)
NOT
REPORTABLE
(2)
NOT
OF INTEREST TO OTHER JUDGES
(3)
REVISED
Case
Number: 16285/2019
28/3/2019
In
the matter between:
MOIPONE
FLEET (PTY)
LTD
APPLICANT
And
CITY
OF TSHWANE METROPOLITAN MUNICIPALITY
1
ST
RESPONDENT
NATIONAL
TREASURY
2
ND
RESPONDENT
JUDGMENT
Fabricius
J,
[1]
In this urgent application the Applicant seeks the following relief:
"2.
That the first respondent be interdicted and restrained from taking
any further steps in the procurement
process under tender no. RT57/ 20 16 which pertains to the
"
appointment of suitably qualified service providers for the supply of
vehicles to the City of Tshwane'
pending the determination of the
review application under case number 27752/17.
3.
That
the first respondent be interdicted and restrained from issuing any
further invitations to bid or requests for quotations for
the supply
of category A and category C vehicles (as defined in the PPP
agreement dated 24 March 2016) pending the determination
of the
review application under case number 2
77
52/
17.
4.
That
the first respondent pay the costs of this application on the
attorney and client scale."
This tender called for the supply
of vehicles to First Respondent, and according to Applicant these
vehicles also fall within the
"Exclusivity clause"
contained in the agreements. First Respondent is of a different view.
The question of urgency arose, but
was not debated in Court although I do note that the Respondents, as
per the Notice of Motion,
were only given 24 hours to file an
Answering Affidavit after indicating their intention to oppose the
application. The Founding
Affidavit gives no reason why this short
period was stipulated for, and there is in my view no reason for such
at all. It is also
unfair.
[2]
Nevertheless, the application was heard and I will decide it on the
basis of my overall
discretion relating to the issuing of interim
interdicts, which discretion I undoubtedly have. One of the issues is
of course the
question whether or not the Applicant can be afforded
substantial redress at a hearing in due course. I will briefly revert
to
this question.
Brief overview:
[3]
On 24 March 2016 , and pursuant to a tender process, two Public
Private Partnership Agreements
were concluded between the Applicant
and the First Respondent, in terms of which the former was appointed
to provide the city with
all vehicles falling under categories A and
C of those agreements. Category A vehicles were defined as were
category C vehicles.
The agreements were to endure for a minimum
period of 60 months up to February 2021.
[4]
Clause 39 of Part A of the agreement provided for "EXCLUSIVITY"
and the interpretation
of this clause resulted in a number of
applications to this Court.
[5]
On 29 March 20 17, Davis AJ made the following order:
"1
The Respondent is directed to comply with its obligations under the
Public Private Partnership
Agreement ("the agreement")
concluded between the Applicant and the Respondent on 24 March 2016
pending the final conclusion
of any process, application, action or
arbitration whereby the validity of the agreement is finally
determined or unit such as
the agreement is validly cancelled.
2.
The Respondent is interdicted and restrained from appointing and / or
concluding any agreement
with any other service provider for the
rendering of the services that the Applicant is obliged to render in
terms of the agreement
pending the final determination of the
validity or valid cancellation thereof as aforesaid."
It will be noted that the order
made is substantially the same that is being sought in the present
proceedings. Leave to appeal
against that order was refused. The
first part of that order was made pending the final conclusion of
further proceedings, and
these were indeed launched by the First
Respondent under case number 27752 / 17, and this review application
is set down for hearing
on 15 and 16 April 2019. There was also a
contempt of Court application heard by Mokose AJ. The order made
therein, is being appealed,
leave to appeal having been granted and a
hearing before the Supreme Court of Appeal is awaited. It is clear
that the interpretation
of clause 39 of the relevant agreements will
also be a topic before that Court.
[6]
There was a further application before Tuchten J in which leave to
execute the judgment
of Mokose AJ was sought. The learned Judge also
referred to clause 39 and made certain observations regarding its
interpretation,
which differed from those of the other Judges, and
also from Applicant's Counsel.
[7]
In light of the order of Davis AJ (as he then was), and the pending
review application
on 15 and 16 April 20 19 , it is in my view highly
undesirable that I again interpret clause 39 of the relevant
agreement, even
if only on a
prima facie
basis. The order of
Davis AJ is substantially the same that I am being asked to grant
again. The application can in any event not
be urgent having regard
to the mentioned facts, as well as the fact that it is in my view
abundantly clear that Applicant would
have a claim for damages
against the First Respondent should it be ultimately found that First
Respondent had breached the terms
of the agreements between them. The
fact that it may be difficult to quantify such damages does not
detract from the fact that
such remedy will exist in law. Difficulty
in quantifying a claim should in my view not be a factor that should
be given undue emphasis.
Litigation is often difficult, but in the
present context, that does not mean that I can find that the
Applicant will have no other
reasonable manner of redress in due
course.
[8]
In the light of the abovementioned facts it is not necessary to deal
with any other
arguments presented by Counsel for the First
Respondent.
[9]
I can also adopt the approach suggested by the Constitutional Court
in
National Treasury v Opposition to Urban Tolling Alliance and
Others
2012 (6) SA 223
(CC)
namely, that an order against an
entity exercising statutory powers should only be made if it is
constitutionally appropriate. First
Respondent is supplying services
to the public, is enabled and obliged to do so by Statute, and this
is also be an important consideration
when l consider the facts
holistically.
[10] In
the light of all of the above, the following order is made:
The application is dismissed with
costs, including the costs of two Counsel, and the costs of the
hearing before Mavundla J on 20
March 2019.
JUDGE H.J FABRICIUS
JUDGE OF THE HIGH COURT GAUTENG
DIVISION, PRETORIA
Case
number: 16285/2019
Counsel
for the Applicant:
Adv A. P. Rossouw SC
Instructed by: VZLR Inc. Attorneys
Counsel
for the 1
st
Respondent
Adv K. Tsatsawane SC
Adv K. D. Magano
Adv C. Marule
Instructed by: Gildenhuys Malatji
Attorneys
Date
of Hearing: 26 March 2019
Date
of Judgment: 28 March 2019 at 10:00