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[2017] ZAGPPHC 1315
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Waymark Infotech v Road Traffic Management Corporation (36811/2014) [2017] ZAGPPHC 1315 (28 March 2017)
IN THE HIGH COURT OF SOUTH
AFRICA
GAUTENG DIVISION PRETORIA.
(1)
REPORTABLE:
YES
/NO
(2)
OF INTEREST TO OTHER
JUDGES:
YES
/NO
(3)
REVISED.
CASE
NO
: 36811-2014
DATE
:
2017-03-28
In
the matter between
WAYMARK
INFOTECH
Applicant/Plaintiff
And
ROAD
TRAFFIC MANAGEMENT CORPORATION
Respondent/Defendant
JUDGMENT
[LEAVE TO APPEAL]
RANCHOD
J
:
In this matter r have
before me an application for leave to appeal by the Applicant, who
was the Plaintiff In the trial. Various
grounds of appeal have been
set out, and I have considered the grounds set out as well as the
submissions made by counsel for the
Applicant, as well as the
submissions by counsel for the Respondent.
Section 17(1)(a)
of the
Superior
Courts Act 10 of 2013
provides inter alia:
'(i) Leave to appeal may be given
if the court is of the opinion that the appeal would have a
reasonable prospect of success; or
(ii) There is some other
compelling reason why the appeal should be heard, including
conflicting judgments on the matter under consideration.'
Having as I said considered the
matter I am of the view that:
(1) There would be a
reasonable prospect of success with regard to the question whether
the Respondent ought to
have brought judicial review proceedings to
review and set aside its decision to award the tender to the
Applicant, and to conclude
the Service Level Agreement with the
Applicant in the light of the provisions of sections 66 and 68 of the
Public Finance Management
Act In the circumstances of the facts of
this case.
(2) There is also the issue
of the delay in the bringing of the application by the Respondent by
way of a counterclaim
for the Declaration that the Agreement
concluded in March 2009 was not binding on it. Another court may come
to a different conclusion
in regard to these two issues.
However counsel for the Applicant
also relied on further grounds on the basis that there are compelling
reasons why the Application
should be granted, and those reasons are:
(1)
That there is a compelling reason to grant Leave to Appeal
ln
that the Appeal would resolve the
question of the correct interpretation of Sections 66 and 68 of the
Public Finance Management
Act, and their applicability to public
procurement contracts for which provision is apparently made In
Section 217 of the Constitution,
and whether the contract
In
casu
is an ordinary public
procurement contract.
(2) Another
compelling reason is that the Appeal would resolve the question
whether an organ
of state which seeks to rely on Sections 66 and 68
of the Public Finance Management Act, does not have to approach the
court for
a declaratory order such as the one sought by and granted
to the Respondent by virtue of its counterclaim.
(3)
The third compelling reason raised by the Applicant Is that the real
issue raised
by the Respondent's counterclaim was in fact whether the
Respondent acted lawfully when it awarded the tender to the Applicant
and when it concluded the Service Level Agreement with the Applicant
on the strength or the decision to award the tender. The Applicant
contends that that decision remains valid and of full force and
effect, as it was not set aside by me in my judgment. It Is an
issue
which ought to be resolved by way of judicial review proceedings.
Hence to the extent that my judgment holds otherwise says
the
Applicant, It is in conflict with previous decisions of this court,
the Supreme Court of Appeal and the Constitutional Court
and
therefore this conflict can only be resolved on appeal.
I am persuaded by these additional
grounds for appeal, that is the three compelling reasons advanced by
the Applicant, in addition
to the two that I have determined may have
reasonable prospects of success. Both parties agree that if I were to
grant Leave to
Appeal it should be to the Supreme Court of Appeal. I
accordingly make the following order:
1.
Leave to appeal is granted to the Supreme Court of Appeal;
2.
Costs of the application for leave 1o appeal are to be costs in the
appeal.
RANCHOD
J
JUDGE
OF THE HIGH COURT
CASE NO:38811/2014
IN
THE HIGH COURT OFSOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
PRETORIA
28 March 2017
BEFORE
THE HONOURABLE MR JUSTICE RANCHOD
In
the matter between
WAYMARK
INFOTECH PTY LTD
APPLICANT
And
ROAD
TRAFFIC MANAGEMENT CORPORATION SOC LTD
RESPONDENT
HAVING HEARD counsel for the
parties and having read the application for leave to appeal against
the Judgment of the Honourable
Justice
RANCHOD
delivered on
13
DECEMBER 2018.
IT
IS ORDERED THAT:
1.
Leave to appeal is granted to the Supreme Court of Appeal;
2.
Costa of the application for leave to appeal is to be costs in the
appeal
BY
THE COURT
REGISTRAR
THE SUPREME COURT OF APPEAL OF
SOUTH AFRICA
JUDGMENT
Reportable
Case
No: 440/2017
In
the matter between:
WAYMARK
INFOTECH (PTY) LIMITED
APPELLANT
and
ROAD TRAFFIC MANAGEMENT
CORPORATION
RESPONDENT
Neutral citation:
Waymark
lnfotech v Road Traffic Management Corporation
(440/2017)
[2018] ZASCA 11(6 March 2018)
Coram:
Lewis,
Seriti and Mathopo JJA and Davis and Plasket AJJA
Heard:
19
February 2018
Delivered:
6 March 2018
Summary:
Interpretation
of
ss 66
and
68
of the
Public Finance Management Act 1 of 1999
:
contract for the procurement of professional services did not
constitute a future financial commitment.