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[2017] ZAGPPHC 46
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Tasima (Pty) Ltd v Department of Transport and Others (44095/2012) [2017] ZAGPPHC 46 (9 February 2017)
IN THE HIGH COURT
OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE
NO: 44095/2012
DATE:
9 February 2017
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
REVISED
IN
THE MATTER BETWEEN
TASIMA
(PTY)
LTD
Applicant
And
THE
DEPARTMENT OF
TRANSPORT
First
Respondent
THE
DIRECTOR-GENERAL: DEPARTMENT OF
TRANSPORT
Second
Respondent
THE
MINISTER OF
TRANSPORT
Third
Respondent
WERNER
EDUARD
KOEKEMOER
Fourth
Respondent
ROAD
TRAFFIC MANAGEMENT
CORPORATION
Fifth
Respondent
COLLINS
LETSOALO
Sixth
Respondent
KEVIN
JOSHUA
KARA-VALA
Seventh
Respondent
MORNE
GERBER
Eighth
Respondent
GILBERTO
MARTINS
Ninth
Respondent
CHRIS
HLABISA
Tenth
Respondent
MAKHOSINI
MSIBI
Eleventh
Respondent
JUDGMENT
POTTERILL J
1
These parties are
habitually in our courts, 18 times at last count, and the applicant
had obtained no less than seven High Court
orders against the
respondents over the period September 2012 to January 2014. All of
the orders obtained, enforced an agreement
between the parties
pending litigation and/or found the respondents, or certain of them,
to be in contempt of High Court orders.
The agreement was concluded
between Tasima (Pty) Ltd (Tasima) and the Department of Transport
(DOT) on 3 December 2001 whereby
Tasima would provide the National
Traffic Information System (eNaTIS). This system nationally maintains
and administers a wide
variety of information and performs functions
pertaining to road traffic in South Africa. This agreement is a
turnkey agreement
in terms of the National Key Points Act, 1980. This
agreement was extended in 2010 until 30 April 2015.
2
In early 2015
Tasima launched its eighth contempt application
inter
alia
for the handover of the system to be
done in terms of the extended agreement and wilful contempt of the
respondents of the court
orders of Mabuse J, Strijdom AJ, Fabricius J
and Rabie J. The DOT in tum brought a counter-application seeking
inter alia
the
extension of the agreement in 2010 to be declared invalid on the
basis of illegality. Hughes J dismissed the application for
contempt
and granted the counter-application; setting aside the decision of
the Director-General of the DOT to extend the contract
and declaring
the extended contract to be void
ab origine.
3
Tasima
successfully appealed against these orders of Hughes J in the Supreme
Court of Appeal
[1]
. The DOT and
others then appealed the Supreme Court of Appeal judgment (SCA
judgment) to the Constitutional Court. Pending the
appeal to the
Constitutional Court the DOT and some of the other respondents,
refused to pay Tasima. A ninth contempt application
was launched by
Tasima. Basson J granted an order ["Basson 1"] finding
inter
alia
the
DOT in contempt, ordering the approval or processing of purchase
requisition orders (PRQ's), payment and enforcement of the
SCA order
dealing with payment during the transfer period. Certain of the
respondents filed an application for leave to appeal
against this
order and Tasima filed a counter-application requesting a declaratory
order that Basson J's order is enforceable pending
the application
for leave to appeal. At the hearing of the applications the parties
reached an agreement that was by consent made
an order of court
(Basson 2). In essence the parties agreed that pending the
determination by the Constitutional Court the project/programme
manager or lawfully appointed delegee must process the PRQ's and must
deliver to Tasima processed PRQ's within 5 working days of
receipt of
such PRQ's. Payment of payment certificate 107 and further was to
take place within 21 days of presentation thereof.
The DOT undertook
to pay payment certificates 102-106. The payment manner and payment
date was also agreed upon.
4
Despite this
agreement by consent, Tasima had to agam m June, September and
October 2016 approach the High Court for orders for
inter
alia
contempt, payment and approval of PRQ's.
Tasima was successful in all these applications and the order in
October, was again, by
agreement between the parties.
5
The
Constitutional Court handed down judgment on 9 November 2016. The
orders relevant to the dispute before me read as follows
[2]
:
"1.. .
2 ....
3. The appeal is
upheld insofar as the counter application succeeds.
4. The order of the
Supreme Court of Appeal is set aside and replaced with the following:
"i. Within 30
days of this order, Tasima is to hand over the services and the
electronic National Traffic Information System
to the Road traffic
Management Corporation.
ii. Unless an
alternative transfer management plan is agreed to by the parties
within 10 days of this order, the hand over is to
be conducted in
terms of the Migration Plan set out in in schedule 18 of the Turnkey
Agreement.
5. The finding of
contempt in part 1 of the order made by the Supreme Court of Appeal
is upheld for the period before the counter
application succeeded,
but lapses thereafter."
6. ...."( CC
order /judgment )
6
Tasima has
approached the Constitutional Court to clarify or vary the orders in
4(i) and 4(ii). Tasima also requires a further clarification
in
confirming the payment regime which is to operate during the transfer
period.
7
Tasima has now on
an urgent basis approached this court to order the DOT to pay Payment
Certificate 113 in the amount of R30 144
947.63. The underlying
payment certificate was approved prior to 8 November 2016 and all
work was performed before 8 November 2016;
a date before the CC
judgment. Tasima is also claiming approval of all PRQ's and site
sign-offs as set out in annexure FA 20 within
three days of the
order. Tasima is relying on the Basson 1 and 2 orders as basis for
payment and approval of the PQR's, costs for
the transfer of the
eNaTIS system and contempt orders.
8
The crux of this
matter is whether the CC order has set aside the Basson 1 and Basson
2 orders; consequently can the DOT refuse
payment for work done by
Tasima between the SCA judgment and the date of the order the CC? The
question is also whether any order
given herein pre-judges the
pending application before the Constitutional Court.
9
The
determination of this application depends upon a proper
interpretation of the order of the Constitutional Court to ascertain
the manifest purpose of the order. The court's intention is to be
ascertained from the language of the order, which is to be
interpreted
on its terms and the court's reasons given as a whole
[3]
.
10
In para 7 of the
Basson 1 order it was
inter alia
ordered
that the SCA order operated and was to be executed to the extent
necessary until the final determination of the appeal of
the SCA
judgment in the Constitutional Court. In Basson 2 it was
inter
alia
ordered that pending the determination
by the Constitutional Court the project/programme manager or his
lawfully appointed delegee
must deliver to Tasima processed PRQ's
within 5 working days of receipt of such PRQ's. The PRQ's must be
processed by the project/programme
manager or his lawfully appointed
delegee. It was further ordered that payment of payment certificates
107 and further will take
place within 21 days of presentation
thereof to the DOT.
11
Tasima is in
terms of the Basson 1 and 2 orders requesting that the DOT make
payment of payment certificate 113. It is common cause
that payment
certificate 113 was submitted on 8 November 2016, a day before the CC
judgment was handed down. It is never denied
by the DOT that all the
work relating to certificate 113 was done before 8 November 2016 and
that all the underlying PRQ's were
approved prior to 8 November 2016.
What is denied is Tasima's entitled to payment because of the order
of the Constitutional Court.
12
The
DOT's counter-application was upheld. The Constitutional Court
summarises the effect thereof as:
"To
summarise:
the Department's counter-application is upheld. From 23 June 2015,
the date of Hughes J's order, the extension no longer
had legal
effect, and the interim interdicts issued by the High Court fell
away. Nevertheless, in
the period
between the granting of the extension and its setting aside, the
applicants were constitutionally obliged to comply with
the various
court orders.
"
[4]
The Constitutional Court thus distinguishes between the contract
extension and the court orders; the contract extension no longer
having legal effect, but the court orders constitutionally having to
be complied with. This distinction is enforced by the reasons
in para
199 of the CC judgment that the various findings of contempt made by
the Supreme Court of Appeal must stand despite the
contract extension
no longer having legal effect.
13
The
Basson 1 and 2 orders fall in the time period between the granting of
the extension and its setting aside and had to be complied
with. In
the majority judgment the principle is enunciated that until a court
is appropriately approached and an allegedly unlawful
exercise of
public power is adjudicated upon, it has binding effect merely
because of its factual existence.
[5]
The upshot is that the administrative act remains legally effective,
despite the fact that it may be objectively invalid. Until
the
judgment of the Constitutional Court the contract persisted and the
High Court orders had to be obeyed.
[6]
Basson 1 and 2 came after the SCA judgment and therefor was not part
and parcel of the SCA judgment and was therefore not addressed
in the
CC judgment. Thus the CC orders and the reasons therefore do not
refer to the Basson 1 and 2 orders. The silence of the
CC on these
orders is simply because these orders were not before it. This
silence can however not negate the principle in law
that all court
orders must be complied with prior to the CC order; these court
orders cannot be ignored. In interpreting para 200
of the CC judgment
one cannot rely on the first sentence therein and ignore the second
sentence, as the DOT is doing.
14
Basson
J made the orders with the necessary authority to make the decision
that she did at the moment that she made it.
[7]
In fact, the Basson 2 order was made by agreement between the
parties. The orders made by Basson only fell away once the
counter-application
was upheld by the Constitutional Court, but the
Court orders are binding and enforceable up to that point.
15
In lieu of the
court orders of Basson the DOT must make payment of payment
certificate 113. The payment is not due because of the
extension
being found not to have legal effect i.e. a claim for enrichment, but
because of the binding and enforceable court orders
prior to the
Constitutional Court order.
16
Tasima has
submitted various PRQ's and site sign-offs to the DOT for the period
prior to 9 November 2016 [date of CC order] and
a period thereafter.
Tasima is praying that it be ordered that the current seventh
respondent approve all the PRQ's and site sign
offs as set out
in "FA20" within three days of the date of the order given.
Tasima avers it did the work before 9 November
2016 in terms of the
Basson orders and the work after 9 November 2016 in terms of para 4
of the CC order.
17
I am unconvinced
that I can make any order pertaining to any approvals of PRQ's and
site sign-offs dated after the CC order. Relying
on payment in terms
of para 4 of the CC order requires an interpretation of para 4 of the
order. I most certainly cannot interpret
para 4 that is the very
subject of an application before the Constitutional Court. Although
it was argued on behalf of Tasima that
the application before the
Constitutional Court does not request clarification or variation
pertaining to payment, in its application
it is requesting that "as
a further clarification, this Honourable Court confirm the payment
regime which is to operate during
the transfer period." [para
111]. Even if there is no order sought pertaining to payment; Tasima
is requesting that payment
in terms of the method and time-frame of
the transfer period be clarified. The application for variation is
pending before the
CC and I therefor find it prudent to postpone the
relief requested after 9 November 2016 in terms of prayer 2.2 sine
die.
18
The date of the
CC order is the guillotine date for previous court orders; those
orders are only operative until 9 November 2016.
The Basson orders
thus require all the PRQ's and site sign-offs set out in" FA20"
for work done, or PRQ's submitted prior
to 9 November 2016 to be
approved and processed.
19
It is common
cause that no hand-over of the system has occurred because the
parties are at loggerheads as to how and within which
time- frame
this should occur; hence the application to the CC. The dilemma is
that pending and during the handover, the eNaTIS
system must, due to
its strategic importance, function. The Constitutional Court
expressed the view that this handover must in
the public interest be
done as expeditiously as possible. [para 206]. The Constitutional
Court considered the time frames
for handover that was granted
by the High Court and the Supreme Court of Appeal. It found 30 days
for the hand over accords with
the transfer management plan and that
despite the complexities the hand over process entails, 30 days is a
sufficient time-frame.
The CC further ordered that if no agreement is
reached between the parties for an alternative transfer management
plan, the handover
is to be done in terms of the Migration Plan. It
is not denied that absent approval and processing of PRQ's Tasima
cannot pay essential
service providers to manage and maintain the
eNaTIS system pending and during the hand-over. The DOT has tendered
to pay service
providers directly. All service providers must be paid
by Tasima in terms of the Basson orders prior to 9 November 2016. As
set
out above all work done by service providers and all PRQ's and
site sign-offs for the period prior to 9 November 2016 must thus
be
processed and approved in terms of the Basson orders.
20
The question is
whether this court can order payment of the service providers by the
DOT to Tasima after 9 November 2016. The DOT
and RTMC have tendered
to pay, as against proper vouching, all bona fide and reasonable
costs to Tasima in the handover relating
to the variable costs of
operation and the reasonable costs in effecting the handover. Tasima
has rejected this tender because
the Migration Plan sets out payment
to Tasima at its current fees on a time and materials basis during
migration. In the application
before the CC the tender is the very
subject of the application before the Constitutional Court (para
109). I could never presume
to pre judge an issue to be decided
by the Constitutional Court. One can only hope that to maintain the
system common sense
will prevail pending the decision of the
Constitutional Court. All the parties are urged to act in the
interest of the public and
to expedite the application before the CC.
21
Prayers
3-5.3 all relate and request this court to declare the DOT, second,
seventh and tenth respondents to be in wilful contempt
of paragraph 7
of the Basson 1 order, paragraphs 3-6 of the Basson 2 order and
paragraph 4 of the CC order. None of the respondents
can be found to
be in contempt of paragraph 4 of the CC order where Tasima itself is
asking clarification/variation of para 4 of
the CC order. There was
non-compliance with the Basson order 2, but the breach must be
committed deliberately and
mala
fide.
"A
deliberate disregard is not enough, since the non-complier may
genuinely, albeit mistakenly, believe him or herself entitled
to act
in the way claimed to constitute the contempt. In such a case, good
faith avoids the infraction.
[8]
The respondents interpreted the law pertaining to the Basson orders,
albeit mistakenly, as entitling them to not comply with the
Basson
orders. The history of the matter reflects a pattern of wilful
contempt of court orders by the respondents that could cast
doubt as
to whether there is good faith on the part of the respondents, but I
cannot find that where the parties have a different
understanding of
the CC order and the law, the breach was committed deliberately.
22
The conditional
counter-application seeks an order that Tasima is in contempt of the
CC order by refusing to perform the hand over
as ordered by the CC
and directing that the hand over occur within 14 days. This counter
application overlaps with the very issue
which arises before the CC
in Tasima is clarifying application to the CC. This is an
insurmountable difficulty which was conceded
by counsel for the DOT.
The application was also procedurally defective. The counter-
application is to be dismissed.
23
I accordingly
make the following order:
23.1.
the
first respondent is to pay the applicant the amount of R30 144 947.63
in satisfaction of payment certificate 113 within two
days of this
order.
23.2.
the
tenth respondent or his lawful delegee is to approve all PRQ's and
site sign-offs in annex "FA20" dated before 9 November
2016
within three days form the date of this order. All approvals of PRQs
and site sign-off's after 9 November 2016 requested in
Prayer 2.2 is
postponed sine die.
23.3.
Prayers
3-5.3 are dismissed.
23.4.
The
respondents are ordered to pay the applicant's costs, jointly and
severally, the one paying the others to be absolved, including
the
costs of 2 counsel.
23.5.
The
counter-application is dismissed with costs.
________________________
S
POTTERILL
JUDGE
OF THE GAUTENG DIVISION, PRETORIA
HEARD
ON: 24 January 2017
FOR
THE APPLICANT: A.E FRANKLIN (SC), J.P MCNALLY (SC) and AWT ROWAN (SC)
INSTRUCTED
BY: WEBER WENTZEL ATTORNEYS
FOR
THE RESPONDENTS: J GAUNLETTE (SC), UNTERHAL TER (SC) J.A MOTEPE
and F.B PELSER
INSTRUCTED
BY: STATE ATTORNEYS 1
st
to 3
rd
,
5
th
10
th
and 11
th
respondent
[1]
Tasima (Pty) Ltd v Department of Transport
(2016) 1 All SA 465
(SCA).
[2]
Department of Transport and Others v Tasima (Pty) Ltd (CCT5/16)
206
ZACC 30
(9 November 2016).
[3]
Firestone South Africa (Pty) Ltd v Gentiruco AG
1977 (4) SA 298
(A)
at 304E; Finishing Touch 163 (Pty) Ltd v BHP Billiton Energy Coal SA
Ltd & Others
[2012] ZASCA 49
;
2013 (2) SA 204
(SCA) para 13;
Cross-Border Road Transport Agency v Central African Road Services
(Pty) Ltd and Others
[2015] ZACC 12
; 201
5 (5) SA 370
(CC) para 22;
Eke v Parsons
[2015] ZACC 30
;
2016 (3) SA 37
(CC) para 29.
[4]
CC judgment para 200.
[5]
CC judgment para 147.
[6]
CC judgment para 185.
[7]
CC judgment para 198.
[8]
Fakie NO v CCII Systems (Pty) Ltd
[2006] ZASCA 52
;
2006 (4) SA 326
para [9].