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[2019] ZAGPPHC 160
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National Technologies Implementation Platform (Pty) Ltd and Another v The South African Nuclear energy Corporation (Soc) Ltd (60980/18) [2019] ZAGPPHC 160 (22 May 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
(1)
REPORTABLE:
NO
(2)
OF
INTEREST TO OTHER JUDGES: NO
(3)
REVISED
CASE
NO: 60980/18
22/5/2019
NATIONAL
TECHNOLOGIES IMPLEMENTATION PLATFORM (PTY) LTD
FIRST
APPLICANT/RESPONDENT
on leave to
appeal
INTSIMBI
FUTURE PRODUCTION TECHNOLOGIES INITIATIVE NPC
SECOND
APPLICANT/RESPONDENT
on leave to
appeal
and
THE
SOUTH AFRICAN NUCLEAR ENERGY CORPORATION (SOC) LTD
RESPONDENT/
APPLICANT
on
leave to appeal
LEAVE
TO APPEAL JUDGMENT
KHUMALO
J
[1]
The: Respondents in this leave to
appeal, the National Technologies Implementation Platform (Pty) Ltd
(NTIP) and lntsimbi Future
Productions Technologies Initiative NPC
(lntsimbi), as 1
st
and 2
nd
Applicants, respectively, sought an urgent interim interdictory
relief against the Applicant, the South African Nuclear Energy
Corporation ("Necsa"), that was granted or: 14 September
2018, in the following order:
2.
Directing Necsa to
forthwith release and return to the Respondents the equipment and
machinery more fully reflected on Annexures
FA2.1, FA2.2 and FA2.3.
3.
Authorising the
sheriff of this Honourable Court to attach, remove and hand over to
the Respondents, the equipment and machinery
more fully reflected on
Annexures FA2.1, FA2.2 and FA2.3, in the event of Necsa failing and
or refusing to comply with 2 above;
5.1
Directing that 2 and 3 above
operate as Interim Interdicts, with immediate
effect,
pending the outcome of an Action to be instituted by the Respondents
within (thirty) 30 days;
5.2
Directing that the
costs of this application be costs in such action, save in the event
of opposition.
[2]
Necsa ("the Applicant") is
applying for leave to appeal the interim interdict order as amplified
by the reasons for the
Judgment furnished to the parties on 2
December 2018, on the ground that the order has the final effect, in
that although clothed
in the terms of an interim interdict,
[2.1]
Removal of the equipment forming the subject matter of these
proceedings will immediately
terminate Necsa's accreditation as a
testing centre;
[2.2]
Such termination of accreditation will affect the students from all
over the country apart
from students to be enrolled at the
Respondents freshly established training centre;
[2.3]
By the time the action to be instituted by the Respondents per the
order is ripe for hearing,
a trial date allocated and the matter
heard,
the order
for
the removal of the equipment will have
become irreversible and
no longer susceptible for an order
for the return and re-commissioning
of the equipment at
'Necsa's premises as:
[2.3.1]
Necsa' s training centre is dependent upon continuing operations in
order to preserve
its capabilities developed through the capacity
building process known as the pilot phase;
[2.3.2]
a cessation of the training operations performed with the use of such
equipment for
such a period of time will result in
a permanent and
irretrievable loss of such capabilities
including but not limited
to
loss of training skills.;
[2.3.3]
The trial court would in the circumstances then prevailing decline an
order for specific
performance in the form of a reverse
decommissioning, removal and re-commissioning at the Applicant 's
centre of the equipment
due to the multiple practical difficulties
and consequences associated therewith and further the detrimental
effect which it would
have on the operations of both parties'
training centres and the trainee students served thereby.
[3]
The Respondents contends
in
limine
that the order granting
interim interdict and the judgment makes it clear that the relief
granted is interim in nature and therefore
not appealable and that
the Application must be dismissed on this ground alone, as:
[3.1]
It is clear from the order that the interim relief is in place only
until the final determination
of the action to be instituted by the
Respondents and if such action fails, the interdict falls away and
the equipment will have
to be returned, unless the trial court
determines otherwise.
[3.2]
The contention that the relief is not interim but final in nature was
already raised by Necsa and
dealt with in the Judgment upon which it
was decided that the order is not final in effect.
[4]
The real contention between the parties on the merits was about the
consequences of
failure by the parties to conclude a new Corporative
Agreement or Service Level Agreement, as was envisaged by their
lapsed Corporative
Agreement (CA). The new CA was supposed to have
been concluded prior to the lapse of the then existent CA or when the
contractual
obligations of the parties have been successfully
fulfilled, whichever occurred first . The CA reached its end on 28
April 2018,
the period of the agreement having lapsed by effluxion of
time. Attempts to negotiate a solution or way out post termination
failed,
which resulted in Necsa since then, refusing the Respondents'
officials access to Necsa premises where the Respondents' machinery
and operational equipment are located. Respondents' demand for the
Applicant at least to return their machinery and operational
equipment was refused, consequently Respondents approached the court
for an interim relief for the release thereof arguing that
the
interim order was important as they have to cater for students
already in their programme starting form 1
st
October 2018
whilst the dispute was still to be adjudicated by the court.
[5]
The dispute involved Necsa's insistence
to retain the Respondents' machinery and equipment, demanding the
commissioning of the Respondents
staff to train Necsa's personnel on
the programme and the use of the machinery and its refusal to
accommodate any innovations to
the programme, whilst at the same time
increasing the costs paid by the Respondents to Necsa for each
student. On the other hand
the Respondents were adamant that the CA
has lapsed and argued that failing the negotiations they cannot be
forced to conclude
any agreement. The dispute remains.
[6]
On adjudicating the matter I have come
to the conclusion that the Respondents established a clear right to
the machinery and to
the programmes. The balance of convenience
favoured the Respondents who's staff has been conducting the training
at the premises
for which they paid rent to Necsa. The training
centre and the machinery was managed by the Respondent' s staff as
well. Respondents'
staff already have the capacity to proceed with
the programme in the meantime, minimising the harm that might be
caused to the
students. The Respondents were denied access to the
premises. Conversely it was going to be difficult for the Applicant
to minimise
such harm when it has no skilled staff to continue with
the teaching or to operate the machines and no agreement in place
regarding
the fees to be paid for the students as the agreement has
lapsed and no structured programme. The interests of justice favoured
the granting of the interim interdict to avoid irreparable harm which
was a reality.
[7]
On the contrary Necsa's major concern in respect of irreparable harm
is it accreditation.
It argues that it expects not to be able to keep
the accreditation if the machinery and the equipment are removed
which outcome
is irreversible, and concerned of the effect it will
have to the students and the training, as it will lead to its
training centre's
loss of capabilities and training skills, that it
argues would result in the interdict having a final effect. A
situation it says
cannot be altered by the court of first instance
and according to it dispositive of the substantial relief claimed,
therefore susceptible
to appeal. It argues that the situation not
only has immediate and final effect but has irreparable harm.
[8]
Mr Raath has found an analogy in the matter of
International Trade
Administration Commission v SCAW South Africa (Pty) Ltd
2012 (4)
SA 618(CC) which confirmed the finding that the principles expounded
in
Zweni v Minister of Law and Order
1993 (1) SA 523 (A) at
5311-533A were correctly adapted by the SCA to accord with the
equitable and the more context- sensitive
standard of the interest of
justice favoured by our constitution: by acknowledging that they are
neither exhaustive nor cast in
stone; that what is of paramount
importance is the interest of justice; and that they were never
without qualification. Also that
irreparable harm is an important
factor in assessing appealability.
[9]
Indeed it is trite that, whether a
decision is appealable is not determined by merely the form of the
order, but also, and predominantly
by its effect. The court in ITAC
had in line with that principle affirmed that the effect of the order
should be considered from
the perspective of the interest of justice
whether leave to appeal be granted. The interdict, though interim,
was found to be of
final effect, because it was likely to cause
irreparable harm. However what ITAC has done is to illustrate the
broadened application
of the principles identified in Zweni in line
with our Constitutional imperatives. According to Zweni an appealable
order was held
to have the following characteristics:
[9.1]
It should be final in effect, therefore the court of first instance
must not be able to alter it (correct
it or set it aside);
[9.2]
It must be definitive of the right of the parties;
[9.3]
It must dispose at least a substantial portion of the relief claimed
in the main proceedings.
at
5311-533A. Which is in ITAC confirmed were never without
qualification. Further that what is in the interest of justice will
depend on a careful evaluation of all the relevant considerations in
a particular case; at 641 A-B and 642C; see
Pine Villa Country
Estate v JR 209 Investments
2009 (4) SA 302
SCA.
[10]
However Necsa's concerns are not
authentic. It was established on the merits that it is the
Respondents' staff that operate the
machinery and the equipment.
Necsa had in addition to its demand to retain the Respondents'
machinery, required that the Respondents'
staff be ordered to impart
their skill to Necsa staff by training them to run the programme and
the operations of the machinery
since it was the Respondents' staff
that operated and managed the training, student support and workplace
experience. The Respondent
provided the machinery, lecturers and
controlled the training at the premises that they leased from Necsa.
The loss of capabilities
and training skills alleged by Necsa is
therefore illusory. Nevertheless, Necsa also expected to be supplied
with a student
complement
from the Respondents for which Necsa is said to have unilaterally
escalated the costs, first to 2006% and then to 156%.
[11]
Having considered the above factors,
I
found that under the
prevailing circumstances, the balance of convenience and the
irreparable harm that might result to the programme
and the students
if the interim interdict is refused, favoured the granting of the
interim interdictory interdict.
[12]
The question of the alleged finality of the interdict raised by Necsa
especially on the
issue of
accreditation that, as it is the only accredited assessment centre in
the entire South Africa and due to the complexity
of the process of
decommissioning, the removal of machinery and operational equipment
will not only be irreversible but will also
terminate its
accreditation causing irreparable harm to it and the students, the
effect of which would be final, was extensively
and substantively
dealt with in my judgment taking into account that Necsa had not
disputed the allegation of its little involvement
with the students,
who were seemingly mainly trained by NTIP's lecturers and supported
and administered by the Respondents as per
clause 4 of the SLA. The
Respondents had also established that the said decommissioning and
commissioning is not complex and could
be managed within a maximum of
two (2) weeks. NTIP had previously done that within three days on
securing new premises. Furthermore
that the Applicant was not the
only accredited centre but also Cape Town and there was a third one
that was in the process of accreditation
at the time. I do not agree
that even on the interest of justice perspective such an interim
order can be found to be final in
effect and therefore appealable.
[13]
Under the circumstances, I make the following order:
1..
The Application for leave to appeal is dismissed with costs.
NV
KHUMALO J
JUDGE
OF THE HIGH COURT
GAUTENG
DIVISION, PRETORIA
On
behalf of Applicants:
Adv M NORWITZ
Instructed
by:
NORWITZ ATTORNEYS
REF: MR B
SCHROEDER/N239
TEL: 011 325 5300
FAX: 011 325 6075
C/O SERFONTEIN
VIUOEN & SWART
info@nowitzattorneys.com
On
behalf of Respondent
: ADV R J RAATH
Instructed
by
:SC SENYEMA GWANGWA INC
REF:SGl/18/NECSA/0003
TEL: 012 335 1988
FAX: 012 346 2520
abrahm@sgattorneys.co.za