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[2016] ZAGPPHC 874
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Dimension Data (Pty) Ltd and Others v State Information Technology Agency (SOC) Ltd and Another (28952/2016) [2016] ZAGPPHC 874 (23 September 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
23/9/2016
CASE
NO
: 28952/2016
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: NO
REVISED.
In
the matter between:
DIMENSION
DATA (PTY)
LTD
First
Applicant
(Respondent
in the application for leave to appeal)
NAMBITI
TECHNOLOGI ES (PTY)
LTD
Second
Applicant
YOTTA
ZETTA (PTY) LTD
Third
Applicant
and
STATE
INFORMATION TECHNOLOGY
AGENCY
(SOC)
LTD
First
Respondent
(Applicant
in the application for leave to appeal
EOH
MTHOMBO (PTY)
LTD
Second
Respondent
JUDGMENT
APPLICATION FOR LEAVE TO
APPEAL
AC
BASSON, J
[1]
This is an application for leave to appeal against the whole of the
judgment and order granted on 6 May 2016. More in particular,
the
leave to appeal is directed against the following:
(i) A prohibitory
interdict restraining SITA pending the final determination of the
relief sought in Part B of the Notice of Motion
from further
implementing the award made under RFB1221/2014 and taking steps to
procure good or services pursuant to or as envisage
in the tender.
(ii) A mandatory
interdict compelling SITA to provide Dimension Data with copies of
certain documentation.
(iii) A cost order to pay
Dimension Data's costs including the cost of 2 counsel on an attorney
and client scale.
[2]
I will refer to the parties as they were cited in the main
application. Although Dimension Data does not take issue with the
fact that the mandatory interdict and the costs order constitute
final relief, it does take issue with the submission advanced
on
behalf of SITA that the prohibitory interdict constitutes final
relief. On behalf of Dimension Data it was contended that this
is but
the latest instalment in the strategy employed by SITA throughout
these proceedings to frustrate Dimension Data's rights
and to
undermine the provisions of the 6 May order.
The
prohibitory interdict
[3]
On behalf of SITA it was contended that the prohibitory interdict is
final in effect and therefore appealable.
[4]
The general rule concerning the appealability is that an order or
judgment will be appealable if it has three attributes:
(i) It must be final in
effect and not susceptible to alteration by the court of first
instance.
(ii) It must be
definitive of the rights of the parties; and
(iii) It must have the
effect of disposing of at least a substantial portion of the relief
claimed in the main proceedings.
[5]
An important factor to be taken into account is whether the judgment
or order sought to be appealed against has disposed of
all the issues
between the parties. Even if it did, the court must still consider
whether a piecemeal determination of the issues
is desirable. See in
this regard:
Health
Professions Council of South Africa and Another v Emergency Medical
Supplies
and Training
CC
t/a
EMS
[1]
"[14] Appealability
can be a vexed issue. The appellants rely on the principles stated by
Harms AJA in
Zweni v Minister of Law and Order.
The learned
judge said that, as a general rule, a judgment or order will be
appealable if it has three attributes: it must be final
in effect and
not susceptible of alteration by the court of first instance; it must
be definitive of the rights of the parties
and it must have the
effect of disposing of at least a substantial portion of the relief
claimed in the main proceedings.
[15] There have been many
glosses on the principle since. In
Moch v Nedtravel (Pty) Ltd t/a
American Express Travel Service
Heter JA said that the three
attributes were not cast in stone nor exhaustive. And in
Jacobs
and Others v Baumann NO and Others
this court reiterated the
principle laid down in
Zweni,
that in considering whether an
order is final one must have regard to its effect. But the court also
stated that even if an order
does not have all three attributes, it
may be appealable if it disposes of any issue or part of an issue.
Conversely, however,
even if an order does have all three attributes
it may not be appealable, because the determination of an issue in
isolation from
others in dispute may be undesirable and lead to a
costly and inefficient proliferation of hearings. I shall elaborate
on this
later.
[16] The appellants
submit that the finding that the appeal in terms of s 20 is a wide
appeal does dispose of a substantial portion
of the relief claimed.
And it cannot be revisited by the High Court. This much is true. But
an appeal court must also have regard
to the reason for refusing to
entertain interlocutory appeals: a piecemeal determination of issues
undesirable. In
Guardian National Insurance
Co
Ltd v Searle
NO
Howie JA said that the 'piecemeal appellate disposal of the
issues in litigation' was not only expensive, but that generally all
issues in a matter should be disposed of by the same court at the
same time. Thus even if, technically, an order is final in effect,
it
may be inappropriate to allow an appeal against it when the entire
dispute between the parties has yet to be resolved by the
court of
first instance.
[17] It should not be
forgotten that Harms AJA in
Zweni
also said that - 'if the
judgment or order sought to be appealed against does not dispose of
all the issues between the parties
the balance of convenience must,
in addition, favour a piecemeal consideration of the case. In other
words, the test is then -
"whether
the appeal - if leave were given - would lead to a just and
reasonably prompt resolution of the real issue between
the parties".
. . .'
[5]
The question would therefore be - in the words of Harms JA in
Zweni
[2]
-
"whether the appeal - if leave were given - would lead to a just
and reasonable prompt resolution of the real issue between
the
parties". In this regard the court will evaluate whether the
relief granted was final in effect, whether the order granted
was
definitive of the rights of the parties, whether the order disposed
of a substantial portion of the relief claimed, aspects
of
convenience, the time at which the issue is considered, delay,
expedience, prejudice, the avoidance of piecemeal appeals and
the
attainment of justice.
[6]
It is clear from the prohibitory order itself that the order will
only operate until such a time as the relief sought in Part
B of the
Notice of Motion (in the review application) is determined by the
review court and that it is not intended to be definitive
of the
rights of the parties. In paragraphs [36] - [37] of the judgment the
court also made it clear that the matter "will
ultimately be
fully ventilated in terms of Part B of the Notice of Motion" and
that the court is mindful of the fact that
the applicant only needs
to establish a
prima facie
right though open to some doubt
(coupled with the other requirements for interim relief). The
disputes between the parties therefore
remain unresolved and must
still be fully ventilated in the (pending) review application.
[7]
Despite the clear wording of the order, SITA still contended that the
relief is final in effect because the effective period
of the tender
is one year from the end of January 2016 and that the determination
of the review application is unlikely to occur
within a meaningful
period before the end of January 2017. This submission was made with
reference to the fact that the agreement
concluded between SITA and
the successful bidder comes to an end on 4 February 2017.
[8]
It is important to point out that the review application was launched
simultaneously with the urgent application. In the review
application, as is the general practice, SITA was invited to dispatch
within 15 days after the receipt of the Notice of Motion,
to the
Registrar the record of the decision under review together with such
reasons as by law it is required to give. It is common
cause that the
record has up to date not been dispatched and no reason why this has
not been done was forthcoming. It is also trite
that until SITA has
complied with its obligations, the review application cannot be
progressed.
[9]
I am in agreement with the submission that a litigant cannot, through
its own inaction, transform a clearly interlocutory order
to one
which is now appealable. If SITA had complied with its obligations in
terms of the review application, this matter would
in all
probabilities have been heard within a meaningful period of time.
[10]
Furthermore, even if the review application is not heard before
February 2017 that does not mean that the prohibitory interdict
is
final in nature. The principle issue between the parties have not yet
been finally determined by the court. All of the findings
made by the
court were
prima facie
findings and are susceptible to
alteration by the review court.
[11]
The applicant also took issue with this court's findings in respect
of non joinder. I have fully dealt with this issue
in the
judgment. Suffice to point out that SITA is the author of its own
misfortune in respect of this issue. It was pointed out
in the
judgment that it would have been a simple matter for the information
regarding the winning bidder to have been provided
to Dimension Data
before the launching of the urgent application. Its failure to do so,
which this court found to be ma/a
fide,
resulted in this court
exercising a discretion that it was not a sufficient ground to
further delay an application that was clearly
urgent.
[12]
In light of the above I am of the view that the order of this court
is not final in effect and accordingly the order is not
appealable.
Mandatory
interdict and the costs order
[13]
Turning briefly to the mandatory interdict and cost order. It was
submitted on behalf of Dimension Data that an appeal against
the
mandatory interdict would be entirely academic in light of SITA's
concession that it has to some extent complied with the order.
Although SITA has conceded that it has complied with the order it is
unclear exactly to what extent SITA has complied with the
order.
Counsel on behalf of SITA endeavoured to obtain an instruction in
this regard but was unable to confirm to what extent there
was
compliance with this order.
[14]
In light of the limited information that was furnished to the court
it is unclear to what extent there was compliance with
the order and
it may well be that an appeal against the mandatory interdict would
be entirely academic.
[15]
In respect of the costs order, I am equally of the view that an
appeal against this order would have no reasonable prospects
of
success. In general leave to appeal will not be granted in respect of
an award of costs unless exceptional circumstances exist.
am not
persuaded that such circumstances exist. The court made it clear in
paragraph [91] why a costs order was granted at this
stage of the
proceedings. Suffice to reiterate that the court took into account
the manner in which the urgent application was
opposed and the fact
that the state conducted itself in such a manner that it may
ultimately have resulted in this court not being
able to grant a
remedy.
[16]
In the event the application for leave to appeal is dismissed with
costs including the costs consequent upon the employment
of two
counsel.
________________________
AC BASSON
JUDGE
OF THE HIGH COURT
Appearances:
For
the applicant
:
Adv. J Peter (SC)
Instructed
by
:
Hogan Lovells Inc.
For
the respondent
:
Adv. Micheal
Adv.
S M Wentzel
Instructed
by
:
Eversheds Inc.
[1]
2010 (6) SA 469 (SCA).
[2]
As quoted in the previous paragraph.