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[2017] ZAGPPHC 94
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Road Traffic Management Corporation and Others v Tasima (Proprietary) Limited and Others (18849/17) [2017] ZAGPPHC 94 (3 April 2017)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO: 18849117
3/4/2017
Reportable:
No
Of
interest to other judges: No
3/4/17
In
the matter between:
ROAD
TRAFFIC MANAGEMENT
CORPORATION
First
Applicant
DEPARTMENT
OF
TRANSPORT
Second
Applicant
MINISTER
OF
TRANSPORT
Third
Applicant
and
TASIMA
(PROPRIETARY)
LIMITED
First Respondent
DENESHKUMAR
NARAN
Second
Respondent
FANNIE
LYNEN
MAHLANGU
Third
Respondent
ZUKO
MZIWOXOLO
VABASA
Fourth
Respondent
MINISTER
OF
POLICE
Fifth
Respondent
DIRECTOR-GENERAL:
DEPARTMENT
OF
TRANSPORT
Sixth Respondent
KEVIN
JOSHUA
KARA.VALA
Seventh
Respondent
MORNE
GERBER
Eighth
Respondent
CHRIS
HLABISA
Ninth
Respondent
MAKHOSINIMSIBI
Tenth
Respondent
JUDGMENT
Tuchten J:
1.
This is an urgent application to enforce an order made by the
Constitutional Court. Urgency is not in dispute. The issue is
straightforward. But the papers have mushroomed. The record consists
of 1 395 paginated pages. The heads of argument are voluminous.
In
the notice of motion, the applicants cited the first to the fifth
respondents. The sixth to tenth respondents were joined by
Tasima
pursuant to one of its counter-applications, with which I shall deal
below. The application is opposed by the first to fourth
respondents,
whom I shall call for convenience the respondents.
2.
The central issue is whether the order of the Constitutional Court
(the hand-over order) required the first respondent (Tasima)
to hand
over the electronic National Traffic System to the first applicant
(RTMC) by a specified date, which translates on my reckoning
to 22
December 2016, or by another, later, presently undeterminable date
which may be far in the future.
3.
In the notice of motion, the applicants ask for orders directing the
first to fourth respondents, within 24 hours of issue of
the order of
this court, to vacate the premises from which Tasima operates the
system, to hand the system over to RTMC and to hand
to RTMC all
access codes, keys, source codes and data necessary to access and
operate the system.
4.
The applicants say that the meaning of the hand-over order is that
the hand-over had to be completed by the specified date. The
respondents say that, properly construed, the hand-over order
required Tasima and RTMC either to agree an alternative transfer
management plan or conduct the hand-over in terms of the migration
plan set out in schedule 18 of what is called the Turnkey agreement.
It is common cause that no alternative transfer management plan was
concluded. Thus, say the respondents, the process contemplated
by sch
18, (but not with all its extended time periods) was the process
which the Constitutional Court ordered to be undertaken.
It is in
issue whether the process contemplated by sch 18 has actually
commenced. Only after the completion of the sch 18 process,
the
respondents say, are they required to hand over the system.
Therefore, say the respondents, the hand-over order means that
the
hand-over must be completed within a reasonable time after the date
on which the hand-over order was handed down.
5.
Tasima has two counter-applications: for payment
of amounts exceeding R100 million, for orders,
amongst others,
directing the second respondent or RTMC and the second respondent
jointly and severally to pay Tasima monthly amounts
as certified by
Tasima itself for its work done and its money disbursed by Tasima in
relation to the system until the hand-over
is complete,
to withdraw certain instructions given to the
applicants' officials not to deal directly with
Tasima and to make
provision for the transfer of Tasima's staff to the RTMC. Counsel for
the respondents made it clear that if
the main application is
granted, the counter-applications should be dismissed. For reasons
which will follow, I need say no more
about the counter-applications.
6.
The notice of motion is flawed in some respects. As framed it
suggests that the relief I have described is interim relief. As
counsel for the applicants accepted and counsel for the respondents
submitted, it is not. It is final relief.
7.
And then the applicants ask that the court issue a rule
nisi
calling upon the respondents named in the notice of motion to
show cause why they should not be held in contempt. I am not being
asked to pronounce on whether those respondents are in contempt. In
principle, a rule
nisi
issues to warn named persons or a class
of persons that relief will be sought against them on a stated date
and to invite such persons
to show cause why such relief should not
be granted. The notice of motion, with the relief set out in Part B
of that document,
fulfils this function. There can therefore be no
good reason to issue a rule in this regard, urgently or otherwise.
8.
The applicants also ask the court to authorise the Minister of Police
to evict the respondents and otherwise give effect to the
order it is
proposed I should make. During argument, counsel for the applicants
accepted that at this stage there was no need for
the Minister of
Police to take any action relative to any relief granted. I need say
no more about this aspect of the case either.
9.
But I do not think that these shortcomings are fatal to the
application.
10.
The hand-over order was made in
Department of Transport and
Others
v Tasima (Pty) Limited,
case no CCT 5/16, and handed down with
the judgments of the justices on 9 November 2016. Paragraph 4 of the
hand-over order is relevant
for present purposes. It reads:
i. Within 30 days of this order,
Tasima is to hand over the services and the National Traffic
Information to [RTM).
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 Schedule 1B of the Turnkey Agreement.
11.
The Constitutional Court itself
has laid down how the interpretation of court orders must be
undertaken:
[1]
The
basic principles applicable to construing documents also apply to the
construction of a court's judgment or order: the court's
intention is
to be ascertained primarily from the language of the judgment or
order as construed according to the usual, well-known
rules ... .
(A)s in the case of a document, the judgment or order and the court's
reasons for giving it must be read as a whole
in order to ascertain
its intention. If, on such a reading, the meaning of the judgment or
order is clear and unambiguous, no extrinsic
fact or evidence is
admissible to contradict, vary, qualify
or supplement it.
This
approach has been endorsed by this court. Kriegler J in
Ex
parte
Women's Legal Centre
added that the interpretation of a court
order 'entails determining the legal context in which the words in
the order were used.
12.
The judgments in CCT5/15
constitute the context against which the order must be read. There
were three judgments. They all show
an appreciation of the fact that
Tasima remained in position as the manager of and supplier of
services under the system for far
longer than was contemplated by the
contract which initially governed the relationship. A web of
maladministration
led to this result. The judgment of the court
shows the intention of the court speedily to bring this undesirable
situation to
an end. Paragraphs 206-207 of. the judgment of the court
in CCT5/15 read:
[2]
[206] In the present matter, not only
was the extension of the contract between the Department and Tasima
unlawful, but it has now
expired. It can only be in the best
interests of the public that the hand-over of the services and the
eNaTIS to the Corporation
happens as expeditiously as possible. While
I recognise the complexities that this process entails, in light of
the success of
the counter-application, Iam unconvinced that five
years is necessary, nor that the unlawfully extended transfer
management provisions
are inevitably the correct vehicle for bringing
the hand-over into fruition.
[207] The Supreme Court of Appeal
found that, on the Department's version, a period between four and
twelve months is appropriate.
The High Court ordered that the
hand-over occur within 30 days. This latter period accords with the
transfer management plan. I
am therefore of the view that hand-over
should occur within 30 days of this order. In light of conceivable
changes in circumstances,
the parties must meet within 10 days to
agree on how the transfer is to be facilitated. Should this agreement
fail to materialise,
the transfer is to take place in accordance with
the Migration Plan set out in the Turnkey Agreement.
13.
Counsel for the respondents accepted during argument that the
interpretation advanced on behalf of Tasima, even with abridged
time
periods to perform the functions provided for in sch 18, would
require Tasima to remain in place for at least twelve weeks
while the
hand- over plan was developed, agreed and executed. In fact, Tasima
has already remained in place for nearly five months
since the
hand-over order was handed down.
14.
Counsel for the respondents were constrained during argument firstly
to concede that the meaning they say should be given to
the hand
over order would require that the injunction in paragraph 4(i) of the
hand-over order to be re-written to provide:
"Within 30 days of
this order, Tasima is
to commence
to hand over ..."; and,
secondly, that the intention of the hand-over order, read in its
context, was to provide an open ended
period, the end date of which
could not, when the hand-over order was made, be determined.
15.
In my view, the interpretation
advanced by counsel for the respondents would enable an adroit person
to remain in place as the manager
of the system for a period the end
of which cannot even now be determined with the concomitant
substantial flow of revenue out
of the public purse.
[3]
The hand-over process contemplated by sch 18 would enable such an
adroit person to generate disputes at well nigh every stage of
the
process and then stall the process by asking the court to rule on
such disputes and to invoke appeal processes if at any stage
he
claimed to be aggrieved by such a ruling. In this context the
celebrated fictional suit in Chancery of
Jamdyce
v Jamdyce
[4]
comes to mind.
16.
I reject the interpretation advanced by counsel for the respondents.
I find that the terms of the hand-over order, read with
the
judgments, are unambiguous. They require Tasima to complete the
hand-over in 30 days. They do not permit Tasima to remain in
place
for any longer than that. The period of 30 days has expired. It is
not for this court to comment on the wisdom of the order.
My duty is
to say what it means. I find that it means what it says.
17.
There is a further ground upon which the interpretation advanced by
counsel for the respondents cannot be correct. By notice
of motion
dated 8 December 2016 under case no. 5/2016, Tasima approached the
Constitutional Court urgently on notice of motion
"in terms of
rules 11, 12, 18 and 29" of the Rules of that court, to clarify
or vary the hand-over order in a number
of respects.
18.
In prayer 2.1, Tasima asked that a paragraph 4(iii) be inserted in
the hand-over order to provide that the hand-over be conducted
in
terms of the "handover Migration Plan" attached to its main
founding affidavit. It is made clear in this affidavit
that Tasima's
contention before the Constitutional Court was, as it was in this
court, that hand over simply could not be
completed within a
period of 30 days; in other words, that on Tasima's construction of
the hand-over order, compliance with the
hand-over order was
impossible within the period of 30 days.
19.
Prayer 2,2,2 invited the Constitutional Court to declare, in the
alternative to prayer 2.1 that the "Migration Plan does
not have
to provide for transfer within 30 days".
20.
By order dated 8 February 2017, the Constitutional Court held:
The
Constitutional Court has considered this urgent application for
direct access. It has concluded that the application should
be
dismissed as it bears no prosects of success.
21.
I am therefore in the unusual situation of having for my guidance a
pronouncement of the apex court not merely on the principles
Ihave to
consider but the very arguments and facts in the case itself before
me. But counsel for the respondents submit that the
order of 8
February 2017 is neutral because it could have issued on procedural
rather than substantive grounds.
22.
I cannot agree. Constitutional Court rule 29, to which Tasima
directly referred in its notice of motion for urgent relief, makes
rule 42 of the Rules of this court,
mutatis mutandis,
applicable
to proceedings in the Constitutional Court. Rule 42(1)(b) empowers
the court to vary an order or judgment in which there
is an ambiguity
or patent error or omission. I cannot conceive that any court, much
less the highest court in the land, would decline
to clarify or
correct its order if an ambiguity or patent error in its judgment or
order were duly brought to its attention. The
order of 8 February
2017 is therefore high support for the conclusion at which I arrived,
independently of that order.
23.
It is not in dispute that a hand-over of the system carries with it
the obligation to comply with the provisions of the notice
of motion
I have identified in paragraph 3 above. It follows that relief in
terms of the notice of motion must issue and that Tasima's
counter-applications must be dismissed. Because the relief sought is
final and not interim relief, I shall not accede to the prayer
that
my order will be subject to confirmation at a later date as envisaged
in Part B of the notice of motion.
24.
One final observation: as I see it, there is nothing in the hand-over
order or the order of this court to prevent the parties
from
continuing after the hand-over to cooperate in ensuring that the
transfer is achieved as swiftly and in as orderly a fashion
as
possible.
25.
Costs must follow the result. I make the following order:
1. The first, second, third and fourth
respondents are hereby directed forthwith:
1.1 to vacate the premises located at
13 Howick Close, Waterfall Park, Bekker Road, Midrand (the premises)
from which the first
respondent operates the electronic National
Traffic Information System (eNaTIS); and
1.2 to hand over control of the eNaTIS
system to the first applicant (RTMC); and
1.3 to hand over to the RTMC all
access codes, keys, source codes and data necessary to access such
premises and to operate the
eNaTIS.
2. If any of the first to fourth
respondents fail to comply with this order, the Sheriff is authorised
and directed to evict such
respondents from the premises and to take
all steps necessary, including using the services of specialist or
expert service providers,
to give effect to this order.
3. The first, second, third and fourth
respondents, jointly and severally, are ordered to pay the costs of
this application, including
the costs consequent upon the employment
of both senior and junior counsel.
_____________________
NB Tuchten
Judge of the High Court
3
April 2017
[1]
Electoral Commission v Mhtope and Others
2016 5 SA 1
CC para 33.
Footnotes omitted
[2]
Footnotes omitted.
[3]
The point about the outflow of revenue is not that It would all
constitute profit in the hands of Taslma. It would probably not.
But
Tasima would be In control of that revenue.
[4]
See Charles Dickens' Bleak House, first published in serial form in
1852-1853.