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[2016] ZAGPPHC 472
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Tasima (Pty) Ltd v Department of Transport and Others (44095/2012) [2016] ZAGPPHC 472 (17 June 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO: 44095/2012
17/6/2016
Reportable:
No
Of
interest to other judges: No
Revised.
In
the matter between:
TASIMA
(PTY)
LIMITED
Applicant
And
DEPARTMENT
OF
TRANSPORT
First
Respondent
DIRECTOR
GENERAL: DEPARTMENT OF TRANSPORT
Second
Respondent
MINISTER
OF
TRANSPORT
Third
Respondent
WERNER
EDUARD
KOEKEMOER
Fourth
Respondent
ROAD
TRAFFIC
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
MAKHOSINIMSIBI
Eleventh
Respondent
JUDGMENT
Tuchten J:
1.
This is the latest in a series of court cases between the parties, or
most of them. The applicant (Tasima) describes itself as
the current
custodian at the behest of the first respondent (DoT) of the
electronic national information system (eNaTIS) which
enables the DoT
to administer, nation wide, many aspects relating to the
administration of motor vehicles and motor vehicle drivers.
2.
On 11April 2016, Sasson J made an order (Sasson 1) finding various of
the respondents in contempt of other orders of this court,
all
relating to the administration of eNaTIS and ordering the payment of
R176 million to Tasima.
3.
Certain of the respondents in that application applied for leave to
appeal and contended that they were not obliged to comply
with Sasson
1 while that order was on appeal. Tasima then applied by
counter-application for an order declaring that Sasson 1 was
not
suspended pending the appeal and was therefore immediately
enforceable.
4.
The
applications for leave to appeal and enforceability were set down for
hearing on 6 May 2016. That morning an agreement was reached
to
operate "pending the final determination of an appeal currently
pending before the Constitutional Court.
[1]
5.
The background to the order for payment is that the bulk of the
payments were required by Tasima to make payments itself to third
parties pursuant to the work it had apparently done for the first
respondent (Don. The balance of the amounts, after provision
for
payments to third parties, were, broadly speaking, Tasima's fees.
6.
The agreement reached on 6 May 2016 was made an order of court by
Sasson J (Basson 2). The relevant portion of Basson 2 reads:
Pending the determination
by the Constitutional Court of the proceedings in case CT5/2016, the
parties agree as follows, without
prejudice to their rights in those
proceedings:
1. [The DoT] will pay the
amount of R104 225 561,04 in respect of payment certificates 102 -106
as follows:
1.1. that portion thereof
that constitutes the 10-15% management fee reflected in each of the
purchase requisitions which make up
the total amount, will be paid
into the escrow account established in terms of paragraph 1.2 of
[Sasson 1].
1.2. the balance thereof
shall be paid to [Tasima] by 10:00, Wednesday 25 May 2016.
7.
Payment was however not made as agreed and ordered. By email dated 25
May 2016, Tasima's attorney wrote to the State Attorney,
Pretoriawho
was representing the respondents, pointingthis out. The email
demanded proof of payment by 16h00 on the following day,
failing
which, Tasima said, it would take steps to protect its rights.
8.
On 25 May 2016, the day upon which payment was to be made, the State
attorney wrote to ask for Tasima's proposals for the "terms
of
reference" for the escrow account. The letter said that the
finalisation and subsequent opening of the escrow account would
enable the DoT to transfer the relevant monies.
9.
But Tasima, took the view, correctly, that Sasson 2 was not subject
to the creation of the escrow account contemplated in paragraph
1.1
quoted above. The DoT's obligation was to pay over any portion of the
amount of R104 225 561,04 not paid into the escrow account
to Tasima
as provided for in paragraph 1.2. And I think I should emphasise too
that the general purpose of the settlement agreement,
and thus Sasson
2, was to preserve Tasima's fee claims until judgment was delivered
in the case before the Constitutional Court
and to provide for the
payment over of the balance of the amounts claimed for distribution
to Tasima's third party creditors. It
would, as Isee it, be
inevitable, if these third party creditors were not paid, that the
entire eNaTIS system would be threatened
with instability.
10.
By notice of motion dated 31 May 2016 Tasima applied urgently for
orders declaringthe DoT andthe second respondent to be in
"breach
and wilful contempt" of Basson 2 and committing the second
respondent to prison in relation to the failure to
pay the amount of
R101 826 723,72 to Tasima. A punitive costs order was also sought.
11.
In its founding affidavit, Tasima demonstrated that the calculation
of the amount to be paid over, after the deductions pursuant
to
paragraph 1.1from the amount of R104 225 561,04, (giving the figure
of R101 826 723,72) was a simple arithmetical calculation.
This
calculation must be made from six sets of documents called purchase
requisitions which were at all relevant times in the hands
of the
DoT. Tasima did not make any point against the DoT that the escrow
account had not been opened, although on a strict reading
of Basson
2, if no amounts were paid into the escrow account by 25 May 2016,the
DoT was obliged to pay the full amount of R104
225 561,04 to Tasima.
12.
Tasima also explained that the reference in paragraph 1.1of Basson 2
to the "10-15% management fee" came about because
different
management fees applied to the various categories of payment
certificates. In the event, however, payment certificates
102-106 all
attracted a management fee of 15%, so no differential calculations
needed to be made. All that was required was that
the relevant
officials in the DoT (a) apply themselves to items 3.1-3.7 in each of
purchase requisitions 102-106; (b) add up the
amounts there
reflected; (c) multiply those amounts by a factor of 15 divided by
115; and (d) deduct the sum of the these amounts
from R104 225
561,04. After this calculation, the figure to be paid to Tasima under
paragraph 1.2 of Basson 2 is R101 826 723,72.
13.
The second respondent was appointed acting Director-General of the
DoT on 4 May 2016. He instructed the DoT's attorneys to settle
on the
terms reflected in Basson 2. In his answering affidavit, the second
respondent submitted that the obligation to pay in paragraph
1.2 of
Basson 2 was subject to the opening of the escrow account referred to
in paragraph 1.1.He says that he only received Tasima's
proposal for
the terms of the escrow account in 6 June 2016, upon which he
instructed immediate payment of the amount of R101 826
723,72 to be
made under reservation of rights. He did not say what rights he was
purporting to reserve.
14.
The second respondent waited until the last minute to raise the
escrow account issue. He also asked Tasima to calculate what
Tasima
thought ought to be retained in escrow. But Sasson 2 did not make the
payment under paragraph 1.2 contingent upon agreement
as to the
amount to be paid over, It was the clear obligation of the DoT, and
of the second respondent, the administrative head
of the DoT, to
calculate the amount due and pay it over. It is not in my judgment
conceivable that the second respondent could
have thought otherwise
and although counsel for the respondents suggested that the second
respondent believed that he need not
pay over anything under
paragraph 1.2 until Tasima had satisfied him that such amount was
owing, no such belief is alleged by the
second respondent in his
affidavit
15.
Civil
contempt consists in the wilful and
mala
fide
failure
or refusal to comply with a court order.
[2]
Once there is, as in this case, proof of the order itself, notice of
the order to the respondents and non compliance, the
respondent
bears an evidential burden in relation to wilfulness and
mala
fides.
16.
As the amount in question has been paid, Tasima no longer asks that
the second respondent be imprisoned for contempt but persists
in the
other relief sought. The onus on Tasima, subject to the evidential
burden Ihave mentioned, is proof on a balance of probabilities,
not
proof beyond a reasonable doubt. I have nevertheless considered
whether it could be said that there is a reasonable doubt that
in
failing to make payment in terms of Basson 2, the second respondent
acted wilfully and
ma/a fide.
Ifind nothing in the evidence of
the second respondent, viewed against the facts as a whole, upon
which Imight concludethatthesecond
respondent acted otherwise
thanwilfullyand
ma/a fide.
It follows that Tasima has proved
that the first and second respondents were deliberate, wilful and
ma/a fide
in their failure to comply with Basson 2 and were
thus in contempt of court.
17.
This finding must carry with it a punitive costs order. I regret that
this will give rise merely to an additional disbursement
from the
public purse. I regret that the relief as sought does not enable me
to consider making costs orders operating personally
against those
who offended.
18.
I make the following order:
1. The first and second
respondents are declared to be in breach and wilful contempt of
paragraph 1.2 of the order of Sasson J dated
6 May 2016.
2. The first and second
respondents are ordered, jointly and severally, the one paying the
other to be absolved, to pay the costs
of this application on the
scale as between attorney and own client, including the
costs consequent upon the employment
of two counsel.
___________________
NB
Tuchten
Judge
of the High Court
16
June 2016
[1]
The case was argued in the Constitutional Court on 24 May 2016.
Judgment is pending.
[2]
Facie NO v CCIS Systems (Ply) Ltd
[2006] ZASCA 52
;
2006 4 SA 326
SEA.