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[2016] ZAGPPHC 879
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Tasima (Pty) Ltd v Department of Transport and Others (44095/2012) [2016] ZAGPPHC 879 (22 September 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
Case
number: 44095/2012
Date:
22 September 2016
Reportable:
No
Of
interest to other judges: No
Revised.
In
the matter between:
TASIMA
(PTY)
LTD 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 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
PRETORIUS
J
,
(1)
This application was launched as an urgent application to have been
heard on 30 August 2016, contrary to the Practice Directive,
as it
was too voluminous to be placed on the ordinary urgent court roll. A
special court should have been arranged for the hearing
of the
application. It was heard on 7 September 2016 due to the voluminous
papers and length of argument, after a direction was
sought from the
Deputy Judge President. Furthermore, the respondents filed the
answering affidavit out of time, although the applicants
dealt with
the launching of the application on a semi-urgent basis, providing
the respondents from 5 August 2016, when the application
was served,
until 18 August 2016 to file and serve the answering affidavit. The
respondents requested an extension of time in which
to file the
answering affidavit due to counsel not being available to draw up the
answering affidavit. This was not granted. The
respondents filed the
answering affidavit out of time, on 24 August 2016, unsigned and
without annexures. The signed answering
papers, with annexures, were
filed on 25 August 2016. To add insult to injury the respondents only
filed their heads of argument
on 5 September at 12h18, after being
directed by the court to file heads of argument on 5 September 2016
at 10h00. This time and
date was already an indulgence as the Deputy
Judge President had directed that heads of argument had to be filed
and exchanged
on Friday, 2 September 2016.
(2)
I will, however, consider these papers, but cannot find that the
unavailability of counsel grants automatic extensions of time
within
to comply with directives from the applicant and the court. There is
no explanation at all from the respondents as to what
had been done
from 5 August 2016 to 18 August 2016 to consult with clients and to
prepare an affidavit which could subsequently
have been settled by
their counsel.
(3)
This application is an application to find the Department of
Transport, Mr Kara-Vala and the Road Traffic Management Corporation
and the other respondents in contempt of court orders which
culminated in the order of Sasson J on 6 May 2016 ("Sasson 2").
Tasima seeks the following relief:
"...an order
compelling the respondents to comply with (1) their payment
obligations; (2) their obligations to process the
outstanding PRQs;
an order compelling
the DoT and the DG to revert to Tasima regarding the escrow
arrangement;
the removal of Mr
Kara-Vala
as
the DG's delegee."
Furthermore
Tasima seeks declarations that the relevant respondents were in
contempt of court orders and that these respondents
should be
committed to imprisonment, with an alternative that such committal be
suspended on condition that the respondents do
not commit any further
breaches of the relevant orders.
BACKGROUND:
(4)
There have been numerous court cases between the parties. Litigation
between these parties has a protracted history. It is common
cause
that the applicant, Tasima, is the developer, maintainer and operator
of the eNaTIS system, a national key point of immense
practical and
strategic importance, which services the public. On 11 April 2016
Sasson J handed down an order ("the Sasson
1 Order") which,
inter alia,
found various of the respondents in contempt of
various orders granted by this court. Sasson J ordered the payment of
R176 million
to the applicant ("Tasima"), in respect of
payment certificates 96 to 101. Tasima is the contractor in this
instance.
(5)
Leave to appeal the Sasson 1 order was to be heard on 6 May 2016
together with a counter application to declare the order to
be
immediately enforceable. On 6 May 2016, before the hearing an interim
agreement was reached between the parties, which was to
operate
pending the final determination of an appeal which was heard in the
Constitutional Court on 24 May 2016 and which decision
is still
pending.
(6)
The February proceedings consisted of an application brought by
Tasima seeking to hold the respondents in contempt of various
orders
of this court and an order of the Supreme Court of Appeal. It was the
ninth contempt of court application that Tasima had
brought against
the respondents. It also consisted of a counter-application brought
by the respondents in which they sought,
inter alia,
to
discharge the orders of this court.
(7)
The agreement which was made an order of court by Sasson J ("the
Sasson 2 order") on 6 May 2016, provided,
inter alia
that:
"1. The first
respondent will pay the amount of R104 225 581.04 in respect of
payment certificates 102
-
106 as follows:
1.
that portion
thereof that constitutes the 1O
-
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 102 of the order of the Honourable Madam Justice Basson,
dated 11 April 2016 under this case
number;
1.2
the balance
thereof shall be paid to the applicant by 10h00, Wednesday 25 May
2016;"
(8)
On 31 May 2016, when the DoT and the Director General had not made
any payment as provided for in the Sasson 2 order, Tasima
launched an
urgent application to this court requesting declarations of contempt
of court and committal to prison. On 17 June 2016
Tuchten J handed
down judgment, after having heard the application on 15 June 2016,
finding the DoT and Director General in contempt
of court and acting
wilfully and
mala
fide
by not adhering to the
Sasson 2 order.
(9)
The applicant once more, in this application, contended that the DoT,
the Director General and the seventh respondent, Mr Kara-Vala,
who is
the Director General's delegatee, are in contempt of court, breaching
both the Sasson 1 and Sasson 2 orders, as well as
the other orders
which are still extant. The reason for the application is that the
DoT, the Director General and Mr Kara-Vala
have unlawfully withheld
payment of an amount of R5 236 029.12, of the total amount owing
under payment certificates 96 - 101,
which were the subject matter of
the Sasson 1 order and are therefore in breach of paragraph 1.1 of
the Sasson 1 order.
(10)
The second breach is that they have refused to approve dozens of
purchase requisition orders ("PRO's") and are in
breach of
paragraphs 4 and 5 of the Sasson 2 order. The third breach of the
Sasson 2 order is that they have unlawfully refused
to make payment
to Tasima of the full amounts owing under payment certificates 107,
108 and 109 within 2 days of presentation thereof.
The outstanding
amount is R27 556 626.41. The DoT and the Director
General have failed to revert to Tasima to record
their consent to
the terms of the escrow arrangement proposed by Tasima, or to propose
terms they deem acceptable to enable them
to comply with the Sasson 2
order.
(11)
The DoT and the Director
General explain that they are not wilfully in contempt of court and
are acting in a
bona
fide
manner.
The principles applicable in cases of civil contempt of a court order
have been well established in
Fakie
NO v CCII Systems (Pty) Ltd
[1]
.
In
Compensation
Solutions (Pty) Ltd v The Compensation Commissioner
[2]
the
court once more confirmed that an applicant has to prove wilfulness
and
mala
fides
beyond
reasonable doubt and that the respondent has the evidentiary burden
to rebut the inference that non-compliance with the court
order was
not
mala
fide
and
wilful. In the present application it is common cause that the
respondents were aware of the Basson 1 and 2 orders, as they
had
entered into an agreement to make the Basson 2 order an order of
court. Service of the order has been admitted, due to the
fact that
the respondents had agreed to the order. The Supreme Court of Appeal
in
Tasima
(Pty) Ltd v Department of Transport
[3]
held in paragraph 18:
"Should the
respondent therefore fail to advance evidence that establishes
a
reasonable doubt as to whether his or her non- compliance was
wilful and mala
fide, the applicant would have proved
contempt beyond
a
reasonable doubt (Fakie paras 22-24)."
The
court was referred to the
Allpay
Consolidated Investment Holdings (Pty) Ltd and Others v Chief
Executive Officer of the South African Social Security Agency
and
Others
[4]
,
but
I find that the facts in the present matter is distinguishable, as
here there is an agreement that the applicant would perform
certain
duties relating to the operation of the eNaTIS system. In the
Allpay
case
[5]
the
agency stepped into the shoes of the department when dealing with
payouts and took over the functions of the State.
(12)
It is further common cause that an escrow arrangement has not been
established as referred to in the Basson 1 order. I do not
intend
dealing with all the contempt orders previously granted against the
respondents, but the orders were granted as follows:
a) The first order by
Teffo J on 7 August 2012 provided that the DoT had to pay the
applicant for all the services rendered or to
be rendered and
obligations incurred or to be incurred by the applicant in connection
with the eNaTIS system and to comply with
certain specific payment
obligations, pending the finalisation of the main application.
b) On 17 October 2012
before Mabuse J a similar order was granted.
c) On 26 March 2013,
Strijdom AJ interdicted the respondents from rerouting or diverting
any of the services, which the applicant
undertook to perform under
the agreement, away from the applicants.
d) On 15 July 2013
Ebersohn AJ found certain of the respondents in contempt of the
Mabuse court order and ordered the respondent
to make certain
payments to the applicant.
e) On 27 August 2013
Fabricius J granted a similar order as that granted by Strijdom AJ on
26 March 2013 and also ordered the respondents
to grant the
authorisations and approvals to the applicants.
f) On 5 November 2013
Nkosi AJ granted an order compelling the respondents to comply with
the Mabuse J, Fabricius J, Strijdom AJ
and Ebersohn AJ's orders.
g) On 21 January 2014
Rabie J held certain respondents in contempt.
h) Sasson J on 11 April
2016 held at paragraph 26 of her judgment:
"...Furthermore,
for the duration of transfer of the eNa TIS System
the DOT
was directed to pay the applicant for all services rendered under the
agreement; all PRQ's are to be processed in accordance
with the
agreement and material contracts and agreements required to be
approved by the DOT would be approved within five days
of the request
by the applicant.
In short, none of the respondents may
take any steps designated to undermine the efficacy or implementation
of the various High
Court orders and none of them can act contrary to
any of these orders."
(Court emphasis)
(13)
This matter has been enrolled as an urgent application and all the
parties are aware of the history of the contempt orders.
This is the
ninth application by Tasima in which the court is requested to
declare the respondents in breach of the relevant orders,
in this
instance the Basson 1 and 2 orders. As set out above all these other
orders are extant and operate pending the decision
of the
Constitutional Court. The court has been requested to consider the
current application against this background.
(14)
Mr Unterhalter, on behalf of the respondents, conceded during
argument that the amount of R5 236 029.12 was due to the applicants.
His argument was that it had not been paid due to a mistake on the
part of the respondents. This concession was only made
belatedly during argument, as in the heads of argument the
respondents still contended that they were not liable for this
amount.
The heads of argument were filed on 5 September 2016, two
days before the hearing of the application and the relevant payment
could
have been made had the respondents been serious to comply with
the court orders.
(15)
In an instance where a party is brought to court on a contempt
charge, one would expect an immediate investigation into the
grounds
for the application. This was obviously not done by the respondents.
It seems as if they did not regard it as a serious
matter, as they
only conceded that they were in default, by not paying the amount,
during counsel's argument. I cannot but find
that their actions were
thus wilful and
mala fide
in this regard. It is clear
that the respondents had not applied their minds when opposing this
relief and was in contempt of court
by not paying the amount as was
ordered by Sasson J on 6 May 2016.
DEFENCES:
(16)
The respondents' defences in respect to the other issues are that Mr
Kala-Vala is processing the PRQ's and his queries in respect
to the
PRQ's are legitimate. Various PRQ's relating to training cannot be
approved as they are no longer necessary or, the DoT's
budgetary
constraints prevent such requests or repayments must be deducted and
the Basson 2 order has extinguished the payments
ordered under the
Basson 1 order. The defence in respect to the escrow account is that
the amount will be paid by the DoT in any
event and that Tasima does
not suffer any harm by the escrow account not being established.
BREACH
OF COURT ORDERS:
(17)
The breach of the court order is the refusal by the respondents to
approve the outstanding PRQ's as it was ordered in paragraphs
4 and 5
of the Basson 2 order. The applicant takes issue with the respondents
creating so-called "new work" and "standard"
PRQ's as there had since the inception of the contract been no such
distinctions and it is an artificial manner to deal with the
relevant
PRQ's.
(18)
The complaints against Mr Kara-Vala are that he had not complied with
the court orders as:
a) Over 40 PRQ's have not
timeously been approved or have expressly been rejected;
b) Over 120 PRQ's were
approved outside the five day window for approval;
c) The reasons for
rejecting the PRQ's are not sustainable.
(19)
Tasima has been responsible for many years for the general security
of the premises through a sub-contractor, Enforce Security.
Tasima
provided security services to man the control room through its own
employees. This changed in May 2015, but the respondents
had accepted
the change as they paid for the security guards to man the control
room up to June 2016.
(20)
The reasons for the change was that the DoT and the RTMC had
solicited Tasima's employees, which resulted in the control room
being understaffed. Tasima replaced these employees with Enforce
Security employees to ensure the security of the control room
at all
times. This arrangement has been in place since May 2015 and it was
only during June 2016 that the DoT complained. PRQ's
in respect of
the control room services have been approved since May 2015.
(21)
According to Tasima the DoT has instructed Tasima through its
security officer, the DoT's Deputy Director: Chief Security Officer,
Mr S Mahlo to employ more control officers. This took place during
August 2016. There was no extension of the Enforce Security
contract.
Enforce was doing its duty as it had been doing and Tasima had been
paid for it up to June 2016 and have even been requested
to employ
more officers for the control room.
(22)
The PRQs that have not been approved do not relate only to the
control room, but relate to general services as well. The respondents
do not deal with the non-payment of the PRQs in this regard. The two
attached DoT-approved PRQs, approving the control room services
of
Enforce Security in April 2016 belies the respondents' defence.
(23)
Tasima has not extended any security agreement with Enforce Security.
In paragraph 71 of the answering affidavit the respondents
concede
that
"Tasima had an option to hire security personnel to
staff the control room".
There is no indication from the
respondents as to how security will be provided for in the control
room should Enforce Security
no longer supply the personnel.
(24)
The only inference I can draw is that the respondents acted wilfully
and
mala
fide
in refusing payment of the relevant
PRQs. In the circumstances I find that these PRQs fall under the
Basson 1 and Basson 2 orders
and have to be paid. Therefor the
respondents are in contempt of these orders, as they acted
mala
fide
and wilful.
(25)
The further refusal to
pay PRQs relate to the Data PRQs which had been belatedly approved.
Mobile data services are required to
be in place 24 hours a day. The
reason for the 3G data connectivity required from
MTN
and
Vodacom is that it acts as a back-up mechanism should the Telkom
infrastructure fail. The respondents requested further information
from the applicant in respect of high data usage by certain
operators, as well as which actions the applicant would implement to
deal with the higher data usage. Tasima has always been monitoring
data usage. Tasima's response and the relevant explanations
were
delivered to the respondents by 14 July 2016 and should have been
approved on 22 July 2016. A letter of demand
[6]
was sent to the respondents on 29 July 2016, to which no reply was
forthcoming. There is no explanation as to the subsequent delay
after
14 July 2016. This is another breach of the Sasson 2 order and due to
the lack of explanation and disregard of the letter
of 29 July 2016,
I must find that the breach of the order in this instance was wilful
and
mala
fide.
(26)
Payment for the training PRQs are still outstanding. Tasima explains
that at all relevant times training PRQs were generated
on the basis
of specific requests by provincial governments' transport
departments. They have consistently been approved. Unfortunately
for
the respondents they have provided three reasons for not paying the
outstanding PRQs in this regard. The first reason provided
on 2
August 2016, in response to Tasima's query was provided by Mr Kara
Vala that there had been a failure to budget for the
expense. The
second reason he provided was that Tasima had not complied with
procurement prescripts. In the answering affidavit
he set out that
Tasima had already previously trained facilitators in all the
provinces who could train other employees and Tasima's
services were
not more required anymore in this regard. Therefore they are not
complying with the Strijdom AJ and Fabricius J's
orders by diverting
work away from Tasima. Once more the only inference the court can
draw from the DoT's stance and providing
three different reasons for
the DoT's failure to deal with the relevant PRQs is that the
respondents are
mala fide
and wilful. On the eve of launching
these proceedings on 5 August 2016, the relevant data PRQs were
approved by Mr Kara-Vala without
any further queries.
(27)
The respondents have not approved the site PRQs. These are requests
for new sites to be established. It has always been governed
by the
needs of the provinces and has always been approved. Even Mr
Kara-Vala, since his appointment as PM delegee has approved
318 site
PRQs. The first argument by the respondents is that the request from
the Northern Cape was not a request to establish
a new site, but was
only done as an enquiry. I have read the e-mail and cannot find it
was only an enquiry, as it sets out the
date in which the Northern
Cape want to establish 10 sites. The respondents only deal with new
sites in Gauteng and the Western
Cape, but fail to deal with the
North West PRQ's which should have been approved.
(28)
Furthermore Tasima disputes that any site PRQs had been withdrawn in
Gauteng. The establishment of sites and the training of
government
officials is an integral part of the eNaTIS system under the
agreement. Tasima avers that each of the instances of site
and
training PRQs has been requested by the provinces and that it is not
open to the respondents to impose a blanket ban on such
services.
(29)
I find that the respondents are acting wilfully and
mala fides
in
these instances and are breaching not only the Strijdom AJ and
Fabricius J's orders, but also the Sasson 1 and Sasson 2 orders.
(30)
The Sasson 2 order provided that payment would take place of payment
certificates 107 and further within 21 days of presentation
thereof
to the DoT, with the portion thereof that constitutes the 10-15%
management fee, reflected in each of the PRQs, being paid
into an
escrow account, and the balance to Tasima.
(31)
On 11 May 2016, five days after the Sasson 2 order was granted,
payment certificate 107 was delivered to the DoT. It was thus
due for
payment on 1 June 2016. R2 679 021.30 had to be paid into the escrow
account by the DoT as management fees, with the balance
of R33 457
082 .17 having to be paid to Tasima.
(32)
Payment certificate 108 was delivered to the DoT on 6 June 2016 and
payment was due on 27 June 2016. The amount payable to
Tasima was R21
327 769.02 and an amount of R909 588.84 in respect of management fees
into the escrow account. The DoT paid both
these certificates, not
only late, but they were paid short, as on 28 June 2016 they paid R32
393 978.45. The short payment on
these certificates was R22 316
066.58 and no amount could be paid into the escrow account as the
escrow account had not been established
as ordered by the Basson 2
order.
(33)
Payment certificate 109 was delivered on 6 July 2016 and payment was
due on 27 July 2016. The amount payable was R20 783 840.52
and the
amount that had to be paid into the escrow account was R790 558.18.
The amount of R15 543 280.69 was paid on 1 August 2016.
The short
payment was R5 240 559.83 and once more no payment into the escrow
account.
(34)
The respondent dealt with these short payments in one paragraph in
the answering affidavit. According to the respondent Tasima
was not
entitled to advance payments, furthermore that unsigned PRQ's are
generally rejected or have outstanding explanations.
The amounts are
disputed by the respondents without setting out any particulars as to
why each payment certificate was not approved
as it was submitted.
The correspondence between the parties in this connection confirms
that the respondents are in breach of the
Basson court orders.
(35)
The DoT made the following deduction on payment certificates 107 and
108:
"Deductions of
R14,599,320.00, being the management fee for
payment
certificates 96
-
106 (later claimed to be 108);
R2, 184,873.00, in
respect of unsigned
PRQ's,
which, according to the Do T, could
not be approved because they remain unsigned; and
R6,000,000.00, in
respect of advance payments"
(36)
The DoT has been making advance payments since the start of the
agreement to enable Tasima to pay SAPO and Telkom and has reconciled
these amounts throughout against amounts actually paid to SAPO and
Telkom. Although Tasima had requested a breakdown of the respondents'
calculations and the reason for deducting some amounts on 30 June
2016, no breakdown has been supplied. There is thus no defence
to
justify the short payment on payment certificates 107, 108 and 109
and the amount of R32 792 655.53 is owing and payable to
Tasima.
(37)
An escrow arrangement between the parties is fundamental to the
Basson 1 and Basson 2 orders. On 3 June 2016 Tasima proposed
the
terms of the escrow regime, which proposal was acknowledged by the
respondents' attorneys on the same day. On 9 June 2016 the
respondents set out in court papers before Tuchten J
"the
escrow account
was
and still
is
essential to protect the
interest of the [Do T] and [Tasima]"
and furthermore
"the
proposed terms of [the escrow account] were presented to me [the
acting Director General of the
DoT] on Monday 6 June 2016"
.
On 27 June 2016 the DoT undertook to consider the proposed
terms of the escrow arrangement and to provide comments. Two and a
half
months ago the respondents regarded the escrow account as
essential, but now has changed tack and argues that although no
escrow
account has been established, DoT will in any event pay the
outstanding fees.
(38)
The respondents' answer to the failure to establish the escrow regime
reflects the cavalier attitude they have in respect to
court orders.
The respondents declare:
"In terms of the
extant Court orders, Tasima can only be paid the amount reflected in
the payment certificates minus 10-15%
management fee reflected in
each of the PRO's.
The management fee ought to be paid into
an escrow account pending the final determination by the
Constitutional Court of the proceedings
in case no. CCT512016.
However, this escrow account has not been created yet.
The
Department consequently retains this management fee and will pay it
over to an escrow account upon its creation.
If the
parties do not create an escrow account, the Department undertake to
pay the management fees it retains to Tasima in the
event of the
Constitutional Court dismissing the appeal."
(Court
emphasis)
(39)
In the heads of argument it was once more said that the Acting
Director-General would respond to Tasima's proposals with regard
to
the escrow account before the hearing of this application. Once more
nothing was forthcoming from the respondents, even when
it was
indicated during oral argument that the respondents would deal with
the escrow agreement immediately and the court would
not be burdened
to consider the issue of the escrow account. I find that the
applicant's counsel is correct when stating that
"the
disregard of the clear terms of the Court Orders, the explanations
are obviously fallacious and contrary to the OG's own
arguments
before this Court".
(40)
This is confirmed by the Director-General's explanation in the
Tuchten J application where the Director-General contended that
the
Director General's obligation to pay in terms of paragraph 1.2
of the Sasson 2 order was subject to the setting up of
the escrow
account. This contention is irreconcilable with the present stance of
the Director General that the establishment
of the escrow
account is of no real consequence.
(41)
In these circumstances I have no option but to find the Director
General's explanation contemptuous of both the Sasson
orders as they
demonstrate
mala
tides
and wilfulness to the
extreme.
(42)
I have been requested to make an order removing Mr Kara-Vala as the
delegee. The grounds for this are that Mr Kara-Vala has
a conflict of
interest as he is designated by the RTMC and is the delegee of the
first and second respondents. He entered into
correspondence with
Tasima on 17 June 2016 and 5 July 2016 and signed these letters as
Divisional Head: Road Traffic Information
Systems (an RTMC
designation).
(43)
According to the applicant, Mr Kara-Vala is seeking to wrest the
operation and control of the eNaTIS system from Tasima not
only in
his capacity as the PM delegee, but also as the representative of
RTMC.
(44)
I have considered the fact that Mr Kara-Vala will be a state witness
in the pending criminal trial against Tasima, but cannot
find that
his involvement with the agreement is compromised on the facts placed
before me. I have not dealt with the alleged criminal
charges,
although I was urged to do so by the respondents counsel. However,
the criminal case has not even commenced and the persons
indicted
have the right to claim innocence until proven guilty. It does not
advance the respondents' case at this stage.
(45)
It seems as if the
respondents have not heeded the decision of
Bezuidenhout
v Patensie Sitrus Beherend Bpk
[7]
where the court held:
"A court order
stands and must be strictly obeyed until set aside by a higher court,
and the same court which granted the original
order does not have the
right to nullify its effect or interfere with that order except in
very limited circumstances in the context
of variation."
(Court
emphasis)
(46)
The main objectives of
contempt proceedings are to vindicate the authority of the court and
coerce litigants to comply with court
orders. In Victoria Park
Ratepayers v Greyvenouw CC
[8]
,
Plaskett AJ described contempt proceedings as follows:
". ..it is clear
that contempt of court is not merely a mechanism for the enforcement
of court orders. The jurisdiction of
the superior courts to commit
recalcitrant litigants for contempt of court when they fail or refuse
to obey court orders has at
its heart the very effectiveness and
legitimacy of the judicial system . ..That, in turn, means that the
court called upon to commit
such a litigant for his or her contempt
is not only dealing with the individual interest of the frustrated
successful litigant
but also, as importantly, acting as guardian of
the public interest."
(Court emphasis)
(47)
The Supreme Court of
Appeal held in
Meadow
Glen Home Owners Association and Others v City of Tshwane
Metropolitan Municipality and Another
[9]
that public bodies are:
"...obliged it to
make serious good-faith endeavours to comply
with it
[court
orders].
That is what we are entitled to expect from our public
bodies. If
it experienced difficulty in doing so then it
should have returned to court seeking
a
relaxation
of its terms.
If there were
a
dispute between them
and the appellants regarding the scope of the order and what needed
to be done to comply with it, it was not
appropriate for the
municipality to wait until the appellants came to court complaining
of non- compliance in contempt proceedings.
It
should have
taken the initiative and sought clarification from the court.
Its
failure
over
a
protracted period to take these steps is
to be deprecated."
(Court emphasis)
This
applies equally in the present instance where the respondents failed
to approach the court. It is even more important where
the
respondents know and has known from the first application for
contempt of court what the result would be if the respondents
fail to
comply with court orders.
(48)
In
Zulu
And Others V Ethekwini Municipality And Others
[10]
the Constitutional Court
found:
'"Organs of
state, through legislative and other measures, must assist and
protect the courts to ensure the independence, impartiality,
dignity,
accessibility and effectiveness of the courts.'
This duty echoes
obligations of organs of state under s 7(2) of the Constitution to
respect, protect, promote, and fulfil the rights
in the Bill of
Rights, including 'the right to have any dispute that can be resolved
by the application of law decided in
a
fair public hearing'.
Failing to fulfil these obligations falls short of the constitutional
mandate. Further, government officials
have
a
duty not only to
discharge their functions, but also to account for when they have
not. A court should be able to rely on the submissions
of organs of
state. Otherwise our very constitutional order would be undermined."
(Court emphasis)
(49)
In
Nyathi
V MEC for Department of Health, Gauteng and Another
[11]
the court found:
"Deliberate
non-compliance with or disobedience of a court order by the State
detracts from the 'dignity, accessibility and
effectiveness of the
courts'.
Yet s 165(4) of the Constitution expressly
imposes an obligation on organs of State 'through legislative and
other measures [to]
assist
and protect the courts to ensure
the
. . .
dignity, accessibility and effectiveness of the
courts'. Indeed in Mjeni Jaff a J had the
following to say:
A deliberate
non-compliance or disobedience of
a
court order by the State
through its officials amounts to
a
breach of [a]
constitutional duty [imposed by s 165 of the Constitution]. Such
conduct impacts negatively upon the dignity and effectiveness
of the
Courts.
The constitutional
right of access to courts would remain an illusion unless orders made
by the courts are capable of being enforced
by those in whose favour
such orders were made. The process of adjudication and the resolution
of disputes in courts of law is
not an end in itself but only
a
means thereto; the end being the enforcement of rights or
obligations defined in the court order. To
a
great extent s 3
of Act 20 of 1957 encroaches upon that enforcement of rights against
the State by judgment creditors."
(Court emphasis)
(50)
It seems as if the respondents do not comply with court orders and
this result in endless expensive litigation. I find that
the
respondents deliberately disobey court orders wilfully and
mala
fides
as set out in the decisions referred to.
(51)
The court has already
found that the first three requirements as set out in the
Fakie
case
[12]
have
been complied with. The respondents bear the evidentiary burden to
prove that they have not acted wilfully and
mala
fides
in
their non-compliance of the relevant orders.
(52)
I find that due to the prior findings above that the respondents have
given no valid explanation for not complying with the
previous court
orders, in particular with the Sasson 1 and 2 orders and have not
discharged the burden of proof that they were
not
mala
fide
and wilful.
(53)
The DoT, the Director-General, Mr Kara-Vala and the RTMC have once
more failed to comply with the Sasson 1 and Sasson 2 orders,
as well
as the relevant prior court orders. The reason for including RTMC is
that it had knowingly, through Mr Kara-Vala, interfered
with the
proper execution of the court orders and is complicit in breaching
the orders.
(54)
I have considered all the facts, arguments and authorities and find
that the DoT, the Director-General, Mr Kara-Vala and the
RTMC are in
contempt of the Sasson 1 and 2 orders. This is the second time that
Tasima seeks relief in respect of the Sasson 2
order, as Tuchten J
had to deal with a contempt of court application on 14 June 2016 and
now barely two and a half months later
the respondents are in breach
of the Sasson orders and the extant orders.
(55)
The applicant requests the court to grant punitive costs orders
against the respondents, but more in particular costs orders
de
bonis propriis
against Mr Hlabisa, the Director-General and Mr
Kara-Vala. I have seriously considered this request due to the fact
that the respondents
are serial transgressors of court orders.
However, as the Constitutional Court decision is pending, I will not
grant the costs
orders against Mr Hlabisa and Mr Kara-Vala in their
personal capacity. Unfortunately it means that once more the costs
will come
out of public funds.
(56)
In the result I make the following order:
1. The application is
urgent;
2. The first respondent
is ordered to pay the amount of R27 556 626.41 to the applicant,
within two days of this order, in satisfaction
of payment
certificates 107, 108 and 109;
3. The first respondent
is ordered to pay the amount of R5 236 029.12 to the applicant,
within two days of this order, in satisfaction
of paragraph 1.1 of
the Sasson 1 order;
4. The tenth respondent
is ordered to approve all purchase requisition orders listed in annex
"FA 13" ("the Outstanding
PRQ's) to the supporting
affidavit within three days from the date of this order;
5. The first and second
respondents is ordered to, within two days of this order, revert to
the applicant, in writing:
5.1 recording their
consent to the terms of the escrow arrangement proposed by the
applicant in its email of 3 June 2016; or
5.2 proposing the terms
of an escrow arrangement acceptable to the first respondent.
6. The first and second
respondents are declared to be in breach and wilful contempt of:
6.1. paragraphs 1.1 and
1.2 of the Mabuse order, as defined in the supporting affidavit;
6.2. paragraph 3 of the
Strijdom order, as defined in the supporting affidavit;
6.3. paragraphs 5 and 6
of the Fabricius order, as defined in the supporting affidavit;
6.4. paragraph 2(b) of
the SCA order, as defined in the supporting affidavit;
6.5. paragraph 1.1 and
1.2 of the Sasson 1 order;
6.6. paragraphs 4 and 6
of the Sasson 2 order, as defined in the supporting affidavit.
7. The fifth respondent
is declared to be in breach and wilful contempt of paragraphs 5 and 6
of the Fabricius order and paragraphs
4 and 5 of the Sasson 2 order.
8. The seventh and tenth
respondents are declared to be in breach and wilful contempt of:
8.1
paragraph 1.1 of the Mabuse order;
8.2
paragraph 3 of the Strijdom order;
8.3
paragraphs 5 and 6 of the Fabricius order;
8.4
paragraph 2(b)(ii) of the SCA order;
8.5
paragraph 1.1 and 1.2 of the Sasson 1 order; 8.6paragraphs 4 and 6 of
the Sasson 2 order.
9. The second respondent:
9.1
is committed to imprisonment for a period of 30 days;
9.2
the order in paragraph 7.1 above will not come into operation unless
there is a breach of any one or more of the following:
9.2.1. the order in
paragraph 2 and 3 above;
9.2.2. any of the Mabuse,
Strijdom, Fabricius, Sasson 1 or Sasson 2 orders;
9.2.3. the Nkosi order,
as defined in the supporting affidavit; or
9.2.4. the Rabie order,
as defined in the supporting affidavit.
10. The seventh and tenth
respondents:
10.1.
are committed to imprisonment for a period of 30 days;
10.2.
the order in paragraph 10.1 above will not come into operation unless
there is a breach of the order in paragraph 4 above
or of any part of
one or more of the orders;
10.3.
a warrant for committal is to be issued by this Court, on the same
papers, duly supplemented as necessary, if the tenth respondent
breaches the order in paragraph 4 above or any part of one or more of
the orders;
11. The first, second,
fifth, seventh and tenth respondents 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
of two counsel.
______________________
Judge
C Pretorius
Case
number
:44095/2012
Matter
heard on
:7 September 2016
For
the Applicant
:Adv AE Franklin SC
Adv
JPV McNally SC
Adv
AWT Rowan
Instructed
by
:Webber Wentzel Attorneys
For
the Respondent
: Adv D Unterhalter SC
Adv
J Motepe SC
Adv
M du Plessis
Instructed
by
: State Attorney
Date
of Judgment
: 22 September 2016
[1]
2006(4) SA 326 (SCA)
[2]
(072/2015)
[2016] ZASCA 59
; (2016) 37 ILJ 1625 (SCA) (13 April 2016)
[3]
[2016] 1 All SA 465 (SCA)
[4]
(CCT 48/13)
[2013] ZACC 42
;
2014 (1) SA 604
(CC);
2014 (1) BCLR 1
(CC) (29 November 2013)
[5]
Supra
[6]
RA paragraph 106-108 p1142
[7]
2001(2) SA 224 (E) at 229
[8]
[2004]3 All SA 623 (SE) paragraph 23
[9]
2015(2) SA 413 (SCA) at paragraph 8
[10]
2014(4) SA 590 (CC) at paragraphs 70-71
[11]
2008 (5) SA 94
(CC) at paragraph 43
[12]
Supra