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[2015] ZAGPPHC 242
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Daimler Fleet Management South Africa (Pty) Ltd t/a "dEBIS" v Telkom SA (Soc) Ltd and Another (22599/2015) [2015] ZAGPPHC 242 (24 April 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
/ES
(
GAUTENG
DIVISION, PRETORIA
)
CASE
NO: 22599/2015
DATE:
24/4/2015
IN
THE MATTER BETWEEN
DAIMLER
FLEET MANAGEMENT SOUTH AFRICA
(PTY)
LTD t/a
"dEBIS"
.........................................................................................................
APPLICANT
AND
TELKOM
SA (SOC)
LTD
.....................................................................................
FIRST
RESPONDENT
BIDVEST
BANK
LTD
.....................................................................................
SECOND
RESPONDENT
JUDGMENT
PRINSLOO,
J
[1] This
rather complex matter came before me in the urgent court on 9 April
2015.
In the
urgent sessions of the preceding week, and on 30 March 2015, my
learned brother Louw, quite correctly, declined to entertain
the
matter because of non-compliance with the strictly applied practice
directive, but he made an interim order ("the 30 March
order) the working of which would expire by midnight on 10 April 2015
or such extended date as another court may determine ("the
end
date").
At the
conclusion of the proceedings before me, I gave an order extending
the end date until midnight on 24 April 2015 and reserved
judgment on
the issues before me, which judgment I propose handing down on
24 April 2015.
[2]
Before me, Mr Whitcutt SC, allegedly at times assisted by Mr Itzkin,
who I did not have the pleasure of meeting, appeared
for the
applicant. Mr Badenhorst SC, assisted by Mr Fourie,
appeared for the first respondent ("Telkom").
The
second respondent ("Bidvest") did not take an active part
in the proceedings but, filed papers indicating its support
for
Telkom's case. I shall refer to the applicant as "Daimler"
although I am informed that the applicant
also trades under the
name "dEBIS".
[3] At
the commencement of the proceedings, I enquired from counsel whether
there would be any arguments as to urgency. Mr Whitcutt
submitted that both Daimler's application and Telkom's
counter-application were urgent and Mr Badenhorst maintained
that
the arguments offered in heads of argument that Daimler's
application was not urgent were not abandoned, although he declined
to
argue the issue
in limine
.
In my
view, given the procedural path already travelled by this case, the
issues of urgency have been overtaken so that I will treat
the matter
as one of urgency.
[4]
Because of the urgency of the matter, and for valid logistical
reasons which I explained to counsel at the conclusion of the
proceedings, it is not practicable to give a detailed judgment.
A brief
synopsis
[5]
Daimler, the applicant (here in the corporate capacity of Daimler
Fleet Management South Africa (Pty) Ltd) is a subsidiary of
Mercedes
Benz South Africa Ltd. It operates a fleet management
business in terms of which it offers a full maintenance
lease as well
as an
ad hoc
rentals solution to its customers. Daimler's main customer is Telkom.
[6] The
business relationship between Daimler and Telkom has now endured for
almost fifteen years. In March 2000, pursuant
to a sale by
Telkom of its then fleet operation business to Daimler, as a going
concern, the parties entered into a Service Level
Agreement ("SLA")
in terms of which Daimler was to render services to Telkom.
As such, the fleet management
service was outsourced to Daimler.
[7] The
initial SLA was terminated on 31 March 2005 and then renewed for
a further period of three years until 31 March 2008.
On
25 March 2008 the parties entered into the 2008 SLA which
terminated on 31 March 2013. The 2008 SLA was extended
for
one year ending 31 March 2014 and in terms of a further addendum,
concluded on 31 March 2014, the 2008 SLA was extended
for a
further one year period which terminated on 31 March 2015, the
day after the 30 March order was made.
[8] The
fleet management service rendered by Daimler to Telkom is a wide
ranging affair: it involves some 5 600 vehicles (at the
official
count, reflected in annexure "A" to the notice of motion to
which I will refer). Daimler purchases the
vehicles from
various manufacturers and retains ownership in the course of the
fleet management service. Before each new
vehicle is included
in the fleet, it is modified by Daimler to meet Telkom's unique
needs. The vehicles are primarily bakkies/pick-up
trucks.
The modification entails removing the rear portion of each such
vehicle and replacing it with a "swoppable box"
which has
been designed by Daimler to carry the tools and equipment used by
Telkom's maintenance technicians who utilise the vehicles.
The
swoppable boxes are installed on the vehicles in such a manner that
they can be detached from each vehicle and replaced with
a different
box. This facilitates the easy loading of equipment, and also
plays an important role in the event that a vehicle
breaks down
en
route
to conduct the repairs. In
that case the box carrying the equipment can be loaded onto a
different vehicle. Prior to
its inclusion in the fleet, each
vehicle is fitted with a Vehicle Tracking and Management System
("VTMS") which has been
specifically designed for managing
the fleet of vehicles and procured from a third party service
provider by Daimler. The
VTMS is used,
inter
alia
, to track the location of the
vehicles, to monitor the driving habits of each individual driver and
to log calls for roadside assistance.
Importantly, Telkom in
its papers, alleges that this VTMS also enables Daimler to immobilise
any vehicle in the fleet by remote
control. These allegations
do not appear to be in dispute.
[9]
Other services supplied by Daimler in the course of the fleet
management include: training of drivers, registration and licensing
of the vehicles, obtaining certificates of roadworthiness, supplying
routine and preventative maintenance, providing break-down,
roadside
assistance and accident management services, managing the payment of
traffic fines, managing the payment of E-tolls, toll
fees and
weigh-bridge fees, supplying fuel cards for each vehicle, supplying
regular reports to Telkom, monitoring and investigating
vehicle
abuse, withdrawing old vehicles and replacing them with new ones.
[10]
Daimler is handsomely paid for the services: over the years it has
been paid billions of rand and for the last financial year
preceding
this litigation, the monthly payment was some R66 million.
[11] My
impression is that it is this very issue of Daimler's rates which led
to the parties drifting apart and eventually embarking
upon the
litigation now under consideration: the uncontested evidence
illustrates that, presumably with the impending expiry of
the
contract in March 2015 in mind, Telkom initiated talks with Daimler
with the view to arriving at mutual agreement on what acceptable
rates would be taking the contract forward. It appears that the
parties could not reach an agreement. Daimler was given
an
opportunity to supply a quotation which Telkom would find
acceptable. This did not happen. This inspired Telkom
to
put the contract out to tender. Daimler took part in the tender
activity but was defeated by the successful bidder, Bidvest.
The contract was awarded to Bidvest with effect from 1 April 2015.
[12] The
main bone of contention between the parties, for present purposes, is
the correct interpretation of stipulations in the
2008 SLA providing
for a "lead out phase" which governs the situation when the
contract comes to an end, either through
cancellation or effluxion of
time. In the event of termination through effluxion of time,
like here, the lead out phase will
be effective for a period of three
months. In this case, from 1 April 2015 to 30 June 2015.
[13] In
broad and basic terms, the dispute can be described as follows:
Daimler insists that any obligations which it may have to
discharge
during the lead out phase do not include the supply of vehicles to
Telkom. Telkom argues that on a proper interpretation,
the lead
out phase makes provision for the vehicles to remain available to
Telkom during the lead out phase, to be gradually phased
out and
replaced by Bidvest during this period.
[14] It
is common cause that Bidvest is not able to immediately replace the
some 6 000 strong fleet with effect from the commencement,
at
the beginning of April, of the lead out phase.
[15] Clause
7.1 of the 2008 SLA, dealing with the lead out phase, stipulates:
"The
Parties agree that in the event of this Agreement being cancelled for
whatsoever reason, alternatively terminated through
the effluxion of
time the Service Provider undertakes to use its
best
endeavours
to render to Telkom all
assistance as indicated in the exit management plan (
'lead
out plan'
) as reflected in schedule 13
and all such other assistance which may be reasonably necessary to
enable Telkom to, either resume
provision of the services itself, or
to enable Telkom to transfer the provision of the services from the
service provider to one
or more third parties."
Clause
7.2 of the 2008 SLA provides:
"The
Lead Out Plan shall reflect all appropriate system requirements,
processes, procedures as well as resources required to
facilitate the
aforesaid transfer of provision of Services."
[16] Clause
7.3 provides:
"The
Parties shall bi annually for the duration of this Agreement
review and update the Lead Out Plan to ensure that it
is at all times
updated with current system requirements, processes, procedures as
well as resources required to facilitate the
aforesaid transfer of
provision of Services. In the event that Telkom identifies
information and/or assistance, which may
be necessary and in addition
to what was initially included in the Lead Out Plan, Telkom shall
inform the Service Provider of the
same in writing. The Service
Provider will in this regard firstly incorporate such additions into
the Lead Out Plan and secondly
use its
best endeavours
to provide such
additional information and/or assistance as identified by Telkom as
and when the need arises. Any additional
assistance and/or
service to be provided by the Service Provider at Telkom's request
will be charged to Telkom at market related
prices."
[17]
Clauses 7.4.1 and 7.4.2 provide that all assistance necessary so as
to cause the minimum of disturbance and disruption of a
material
nature to the day-to-day operations of Telkom as a result of the
cancellation or expiry of this agreement will be provided
and there
must also be a hand over of control to Telkom of all data and
information of whatsoever nature necessary to facilitate
the transfer
of the services from Daimler to the next service provider or to
Telkom.
[18] Perhaps
importantly, in my view, is the following provision contained in
clause 7.6.2:
"The Service Provider shall not be entitled, for
the period referred to in clause 7.6.1, to sell, hypothecate or
otherwise
encumber any or all of the Vehicles reflected in schedule 2
during the last month of the currency of the Agreement, unless the
Service Provider shall have first, by Written Notice to Telkom,
offered to sell such Leased Vehicles to Telkom."
(It
is provided that the sales, if any, should be at fair market value.)
The
question which arises is why there should be this prohibition on
Daimler to alienate the vehicles in the last month leading
up to the
expiry of the contract if the vehicles were not to play a role during
the lead out phase.
[19]
Clause 33.1.2(2), also stipulated to apply during the lead out phase,
provides that during this phase Daimler (will) "use
its
best
endeavours
to render to Telkom all
assistance necessary to effect an orderly hand-over of the Services
to Telkom or any third party nominated
by Telkom for this purpose in
order to achieve the minimum of interruption or inconvenience to
Telkom".
"Services"
is defined in the 2008 SLA as meaning "the Vehicle services in
clause 5 to be provided by the Service
Provider to Telkom in terms of
this Agreement". Clause 5 deals with the full
management and operation of the vehicles.
[20] Schedule
13, dealing in more particularity with the lead out phase, was not
attached to the founding papers but it was attached
to the opposing
affidavit. It provides, in clause 1.4:
"The
Service Provider is obliged in terms of clause 7 to
use
its best endeavours
to provide all
necessary assistance to enable Telkom, on termination, to resume the
services, as conducted by Fast Fleet prior
to the effective date,
with the minimum of disturbance and disruption of a material nature
to the day-to-day operations of Telkom."
(The
repeated emphasis of the reference to the use of Daimler's best
endeavours is mine.)
[21] Clause
1.6 of schedule 13 provides
"The
Service Provider wishes to submit a high-level lead-out plan which
shall form the basis and framework within which the
parties shall
negotiate a final and detailed lead-out plan."
As I
understood Mr Badenhorst, such a high level plan never became a
reality. In my view, not much turns on this for present
purposes.
[22] I
turn briefly to my repeated emphasis of the contractual duty on
Daimler to use its "best endeavours" to, for example,
"render to Telkom all assistance as indicated ... and all such
other assistance which may be reasonably necessary to enable
Telkom
to either resume provision of the services itself or to enable Telkom
to transfer the provision of the services from (Daimler)
to one or
more third parties".
Counsel
for Telkom, with reference to some English authority, strongly argued
that the use of the phrase "best endeavours"
in various
clauses of the contract, fortifies their argument that the SLA should
be interpreted in such a way that the conclusion
that the vehicles
were to remain available to Telkom during the lead out phase is the
reasonable and correct one.
[23] In
supplementary heads of argument, counsel for Telkom submitted that in
English law, the phrase "best endeavours"
has been held to
have specific meaning in commercial contracts. The starting
point is that the phrase "means what the
words say; they do not
mean second-best endeavours", and mean an obligation to leave no
stone unturned, within the bounds
of reason (
Sheffield
District Railway Co v Great Central Railway Co
[1911] 27 TLR 451).
Counsel
pointed out that this has been further refined by the Court of Appeal
to require the obligors "to take all those steps
in their power
which are capable of producing the desired results ... being steps
which a prudent, determined and reasonable obligor,
acting in his own
interests and desiring to achieve that result, would take" (
IBM
United Kingdom Ltd v Rockware Glass Ltd
[1980] FSR 335).
[24] The
weight of the English authority quoted, and I will not dwell on the
subject any further, appears to indicate that an obligation
to use
best endeavours should usually be held to be an enforceable
obligation.
[25]
Against this background, Daimler seeks final interdictory relief
restraining Telkom from using the vehicles as from 1 April
2015 (as I
explained, this "end date" was extended to 10 April by
the 30 March order and to 24 April when the matter
came before me on
9 April).
The
final interdictory relief sought in the form of a
mandamus
is also to direct Telkom to hand over possession of the vehicles to
Daimler in accordance with a proposed hand over schedule.
[26]
Telkom, on the other hand, seeks interim relief aimed at ensuring the
continued use of the vehicles during the lead out phase,
as required,
considering that new vehicles will be brought in by Bidvest, pending
the outcome of arbitration proceedings or the
institution of other
procedures.
[27] So
much for a brief synopsis of the case.
[28] I
now consider, in that order, Daimler's application for final
interdictory relief and, thereafter, Telkom's counter-application.
A.
DAIMLER'S APPLICATION FOR FINAL INTERDICTORY RELIEF
(i)
The
notice of motion
[29] The
relevant prayers read as follows:
"2. That the first respondent be interdicted and
restrained from utilising any of the vehicles described in annexure
'
A
', as from 1 April 2015.
3.
That the first respondent be directed to hand over possession to the
applicant of the vehicles described in annexure '
A
'
in accordance with the hand over schedule set out in schedule '
B
'."
[30]
Annexure "A" is an impressive affair. It lists, in
alphabetical order, no less than 279 cities, towns
and villages
throughout the country and illustrates the number of Telkom vehicles
deployed, as at 31 March 2015, to each such
city, town and
village. For example, there is only one Telkom vehicle in
Albertinia, Alice, Calvinia, Darling, Delareyville,
Garies, Hoopstad
and many others. Towns like Balfour, Bergville, Carolina,
Hluhluwe, Melmoth, Mogwadi, Uniondale and a number
of others have
graduated to sport two vehicles. The number of vehicles
deployed in the various cities, towns and villages
range from 1 to
577 in Johannesburg and 518 in Pretoria.
The
grand total comes to 5 588 vehicles. Annexure "A" is
only a summary. Full details are particularised in
a memory
stick as agreed between the parties, reflecting the position as at
31 March. The memory stick, by agreement,
is in the safe
custody of Telkom's attorney of record.
[31]
Annexure "A" graphically illustrates the magnitude of this
particular motor leasing operation.
[32]
Annexure "B" is the so-called "hand over schedule"
prepared by Daimler and attached to the notice of motion.
In
broad terms, it suggests that Daimler is in the process of finalising
a detailed collection plan of all its vehicles available
to Telkom by
close of business on 30 March 2015. A Daimler staff member will
contact the relevant Telkom yard supervisor
on 31 March 2015 to
confirm that the vehicles are ready for collection in line with a
"supplied collection plan" which,
as far as I can gather,
has not yet seen the light. It is foreshadowed that
"collection" will commence on 1 April
2015. In
annexure "B", Daimler estimates the "complete
collection process" not to exceed 20 business
days. This
would cover approximately one calendar month, or the first of the
three months applicable to the lead out phase.
As it is, that
period would have all but expired by the time I hand down this
judgment on 24 April, as I intend to do, on the eve
of the expiry of
the extended "end date" by midnight on that day.
[33] So
much for the notice of motion.
(ii)
The
rule in
Plascon-Evans Paints Ltd v Van Riebeeck Paints
(Pty) Ltd
[1984] ZASCA 51
;
1984 3 SA 623
(AD) ("the
Plascon-Evans
rule")
[34]
"... where there is a dispute as to the facts a final interdict
should only be granted in notice of motion proceedings
if the facts
as stated by the respondents together with the admitted facts in the
applicant's affidavits justify such an order
... where it is clear
that facts, though not formally admitted, cannot be denied, they must
be regarded as admitted."
-
Plascon-Evans
at 634E-F, quoting from
Stellenbosch
Farmers' Winery Ltd v Stellenbosch Winery (Pty) Ltd
1957 4 SA 234
(C) at 235E-G.
[35] The
"exception" to this general rule is described as follows by
the learned Judge of Appeal at 635B-D:
"Moreover,
there may be exceptions to this general rule, as, for example, where
the allegations or denials of the respondent
are so far-fetched or
clearly untenable that the Court is justified in rejecting them
merely on the papers ..."
[36] I
mention at the outset that I find nothing whatsoever in the
submissions made on behalf of Telkom in opposition to the Daimler
application "so far-fetched or clearly untenable" that
I consider that they can be rejected merely on the papers.
Disputed
facts on the papers, in this case, must therefore be decided on
Telkom's version together with the admitted facts in Daimler's
affidavits.
(iii)
The
requisites for a final interdict
[37] I find it
convenient to refer, generally, to the account given on the subject
by the learned author Prest
The Law and Practice of Interdicts
,
which is considered to be an authoritative work on the subject.
For the sake of brevity, I refrain, as far as I can, from
referring
to authorities quoted by the learned author in the footnotes.
[38] At
p42-43, the learned author states:
"Unlike
an interim interdict, which does not involve a final determination of
rights of the parties, a final interdict affects
such a final
determination of rights. It is granted 'in order to secure
the permanent cessation of an unlawful course
of conduct or state of
affairs'. For the grant of such an order there are three
requisites, all of which must be present."
It is
trite that these requisites are a clear right, "injury actually
committed or reasonably apprehended", and proof
that there is no
other satisfactory remedy available to the applicant.
(a)
Clear right
Prest
,
p43, suggests that "the word 'clear' relates to the degree of
proof required to establish the right and should strictly not
be used
to qualify 'right' at all. The existence of a right is a matter
of substantive law. Whether that right is clearly
established is a
matter of evidence. In order to establish a clear right the
applicant has to prove on a balance of probability
the right which he
seeks to protect."
[39] In the
founding affidavit, Daimler does not say much about its alleged clear
right to this final interdictory relief. It appears
to limit its
submissions to the following three paragraphs:
"96. The applicant has a clear right to the return
of its Vehicles after 31 March 2015.
97. Telkom is obliged, in terms of the implied term of
the 2008 SLA, to return the Vehicles upon the termination of the
period of
the 2008 SLA (as extended until 31 March 2015).
98.
The ownership of the Vehicles vests in the applicant, and there is no
legal basis for Telkom to retain possession of the Vehicles
after
31 March 2015 in circumstances where the 2008 SLA will expire
through effluxion of time on that date, and where DFM's
(read
Daimler's) obligations in respect of the Lead Out Phase do not
include providing Telkom with possession of the Vehicles."
As to the
"implied term of the 2008 SLA", referred to, this seems to
be mentioned in paragraph 46 of the founding affidavit:
"It
is an implied clause in terms of the 2008 SLA (read with schedule 13
and annexure 6) that Telkom is to return possession
of the vehicles
to DFM when the 2008 SLA terminates by effluxion of time on 31 March
2015. This in circumstances where the
vehicles are owned by
DFM, where DFM is entitled to sell the vehicles during the Lead Out
Phase, and where there is no contractual
(or other legal) basis on
which Telkom is entitled to retain possession thereof beyond 31 March
2015."
In the
alternative, Daimler states in paragraph 47 of the founding affidavit
that it is entitled to the return of the vehicles upon
termination of
the agreement by virtue of the fact that it owns the vehicles.
I have
already pointed out that the contracts provide that Daimler is not at
liberty to sell or alienate the vehicles during the
lead out phase
period without having first, by written notice to Telkom, offered to
sell the vehicles to the latter.
It is
argued on behalf of Telkom that, properly interpreted, the provisions
of clause 7.6 of the SLA (dealing with the selling of
the vehicles
during the lead out phase) do not override the obligations of Daimler
towards Telkom during the lead out phase.
It is argued on
behalf of Telkom that these obligations include providing Telkom with
the use of the vehicles, to the extent
required by Telkom for the
duration of the lead out phase.
[40]
There is no reference in the founding affidavit, as far as I can make
out, to clear provisions in either the SLA or schedule
13 or annexure
6 to the effect that the vehicles are not to remain available during
the lead out phase.
[41]
Where the parties specifically provided for a three month lead out
phase in the contract, and where clause 7.1 of the SLA clearly
provides that Daimler undertakes to use its best endeavours to render
to Telkom all assistance as reflected in schedule 13, and
all such
other assistance which may be reasonably necessary to enable Telkom
to, either resume provision of the services itself,
or to enable
Telkom to transfer the provision of the services from Daimler to one
or more third parties, I find it difficult to
accept an
interpretation of these provisions to the effect that the parties
intended that their relationship, as far as the use
of the vehicles
is concerned, would come to an end by midnight on 31 March
2015. There is no clear provision to that
effect. Given
the magnitude of the operation, it is difficult to identify an
intention by the parties that all the vehicles,
country-wide,
numbering almost 6 000, would remain available and in use until
midnight on 31 March and, when the clock strikes
12, become
unavailable to Telkom. Even Daimler's own "collection
plan" to be found in annexure "B" to
the notice of
motion, foreshadows the gradual removal from Telkom yards of the
vehicles over a period of almost a month.
[42] On
Daimler's proposed interpretation of the agreement, it seems that one
must accept a situation of Cinderella like proportions:
at the stroke
of midnight, all the vehicles, from Albertinia to Zeerust, from
Gingindlovu to Odendaalsrus and from Kirkwood to
Rouxville all become
unavailable to Telkom engineers using them up to midnight.
I was not informed what the parties
intended, on Daimler's
version, to happen after midnight. Were the vehicles to be
abandoned on the spot by Telkom drivers
and engineers using them at
the time, or were they to be taken to some or other "Telkom
yard" such as there may be in
each of these distant little towns
and villages?
[43]
Perhaps more importantly, on Daimler's interpretation, one has to
assume that the parties intended a seamless hand over of
services
between Daimler and Bidvest at the stroke of midnight: reminiscent of
what happened to Cinderella, brand new Bidvest vehicles
must suddenly
emerge from nowhere in Alice, Flagstaff and Hartbeesfontein at
midnight to carry the baton forward and avoid an interruption
in the
delivery by Telkom of, for example, emergency services.
[44] It is
convenient, at this point, to quote what Telkom has to say, in the
opposing affidavit, about the effect of an interruption
to its
services. This evidence is
undisputed
as, in the
replying affidavit, Daimler simply suggests that Telkom failed to
take the necessary steps timeously to implement a
"reasonable
hand over plan or accept DFM's repeated offers of assistance".
I will revert briefly to these "offers
of assistance" but
it is necessary to mention the Telkom allegations about the results
of an interruption:
"25.
It follows that loss of this vital resource will immediately cause
paralysis of some of Telkom's essential business activities
throughout South Africa.
The
purpose for which the Telkom fleet is utilised is as follows-
25.1 99% of the fleet is assigned to technicians which
inter alia
perform the following main functions;
25.2 installation of new telecommunication services;
25.3 repair of faulty telecommunication services;
25.4 routine maintenance of telecommunication services;
and
25.5 planning and engineering of telecommunication
services.
26.
Telkom's fleet, which is deployed throughout South Africa, travels an
average 9 million kilometres per month in total –
this gives
some idea of the important contribution made by the fleet in enabling
Telkom's daily business activities.
The
effect on Telkom's infrastructure if it did not have the use of the
fleet.
27. Depriving Telkom's fleet of vehicles, will
immediately
result in a total inability to perform repairs,
routine maintenance and the extension of Telkom infrastructure.
28. This will have the following immediate consequences:
28.1 no new services will be installed (a current
average of 13 600 installations per week);
28.2 inability to repair any service interruptions
reported. (A current average of 29 600 incidents per
week); and
28.3 general deterioration as a result of the lack of
routine maintenance of the infrastructure, will aggravate the
vulnerability
of the said infrastructure making it prone to more
failures.
29.
It will also have the following likely consequences:
29.1 failures in Telkom's infrastructure will not only
impact the Telkom primary customers, but the secondary customers,
utilising
our Telecommunication Transportation infrastructure will
also suffer catastrophic failures;
29.2 with specific reference to the Telkom's large
wholesale customers (Vodacom, MTN, Cell C and Internet Solutions)
whose own services
will be adversely affected by the failure of
Telkom's provided services to them.
30. The increasing cascade of unrepaired failures across
the network may have the combined effect of causing catastrophic
large-scale
failures in the South African telecommunications network
as a whole.
31. Such failures could include a total shut-down of all
financial services (for example banks, automated teller machines,
internet
transactions). The isolation of medical services,
inability of organs of State (inclusive of National Key Points) to
communicate
as well as every single large enterprise business
utilising the telecommunication network being adversely affected.
Indeed,
the internet service – both local and international –
is likely to be compromised.
32.
It is commonly accepted that a link exists between efficient
telecommunication infrastructure and economic growth, it is therefore
likely that a catastrophic failure of Telkom's infrastructure will
not only result in social decay, but also in economic collapse
of the
country."
[45] It
may be, that the deponent to the opposing affidavit is dramatising to
an extent, but this is the Telkom version which I
have to accept and
it is in any event uncontested.
[46]
Against this background it is difficult to interpret this contract,
centered around a motor leasing scheme of this magnitude,
and
featuring a three month lead out phase, in such a way that it was the
intention of the parties that by midnight upon the expiry
of the
contract and upon the commencement of the lead out phase, the
vehicles would no longer be available to Telkom.
In my
view, relevant considerations in interpreting this contract must
include the fact that there are almost 6 000 vehicles, specially
customised for the use of Telkom and spread all over the country.
[47] For
purposes of attempting to interpret the contract, I was referred by
Telkom's counsel to an often quoted recent judgment
namely that of
Natal Joint Municipal Pension Fund v Endumeni Municipality
2012 4 SA 593
(SCA). I quote a few extracts from what was
stated in para [18]:
"Where
more than one meaning is possible each possibility must be weighed in
the light of all these factors. The process
is objective not
subjective. A sensible meaning is to be preferred to one
that leads to insensible or unbusinesslike
results or undermines the
apparent purpose of the document."
And:
"The
inevitable point of departure is the language of the provision
itself, read in context and having regard to the purpose
of the
provision and the background to the preparation and production of the
document."
Another
leading recent case is that of
Bothma-Batho Transport (Edms) Bpk v
S Bothma & Seun Transport (Edms) Bpk
2014 2 SA 494
(SCA)
where the following is said in para [12]:
"The
process of interpretation does not stop at a perceived literal
meaning of those words, but considers them in the light
of all
relevant and admissible context, including the circumstances in which
the document came into being."
[48] In
my view, and in these particular circumstances, the "sensible
meaning (which) is to be preferred to one that leads
to insensible
and unbusinesslike results or undermines the apparent purpose of the
document", in the words of the learned
Judge of Appeal in
Endumeni
,
is that the parties intended that the vehicles should remain
available during the lead out phase.
[49] I
am not making a final pronouncement on this. Firstly, because I
do not consider it necessary in order to decide whether
or not
Daimler succeeded in discharging the
onus
of proving that it has a clear right to this final interdictory
relief, and, secondly, because to do so could be to usurp the
function of another court or tribunal to which this dispute may be
referred.
[50] Finally,
and before turning to the next requirement for final interdictory
relief, it is worth mentioning that there is strong
and undisputed
evidence (which I must in any event accept because it is the Telkom
version) that the executive chair person of
Daimler, Mr Koller, at a
meeting on 15 January 2015 with Bidvest, stated that Daimler
"remains
contractually committed to providing Telkom with all the services
until such time as the newly appointed Service Provider
is in a
position to do so. He emphasised however, that they would not
be leasing vehicles to us (meaning Bidvest) on a sub-lease
basis but
rather that they would continue to lease direct to Telkom until the
relevant vehicle is replaced by the new Bidvest vehicle."
This is
stated in a letter of 29 January 2015 by Mr Byron Corcoran the Head:
Fleet and Asset Finance Division of Bidvest.
As I indicated,
this is not disputed on the papers. Corcoran deposed to a
confirmatory affidavit. It is perhaps significant
that there
was no affidavit from Koller.
In a later
electronic letter dated 16 February 2015, Corcoran again reports on a
meeting he had with Koller on the same date.
He states that
Koller
"reconfirmed
that he is contractually bound to provide all services for 90 days
from 1 April 2015 and is prepared to deliver
these services in
line with the lead out agreement. He stated that he had
received a letter from Telkom advising that DFM
is no longer required
from 1 April 2015 and therefore is happy to extract his fleet if
it is not required ... I have
strongly urged Telkom not to
terminate their lead out agreement with DFM as Bidvest simply cannot
supply the required number of
vehicles on 1 April 2015."
Daimler
disputed that Koller said that Daimler is contractually bound to
provide all services during the lead out phase. In
the replying
affidavit Daimler states that the meeting was held on a "without
prejudice" basis and Koller did not use
the word "Services"
– according to the deponent he used the word "support".
This qualification
may be inspired by the fact that "Services"
is defined in the contract as including the use of the vehicles.
In
any event, I consider it inherently improbable that Corcoran would
have fabricated this version and, in view of
Plascon-Evans
, I
have to accept his statement. The allegation that Telkom
indicated that the services would not be required from 1 April
is denied on oath by Mr Ian Russel, chief procurement officer
employed by Telkom. He states:
"What
I told Mr Alp was that Telkom will not be renewing the agreement with
dEBIS. I never said that Telkom would forego
the lead out
services which dEBIS is obliged to render in terms of the agreement."
Corcoran's
e-mail of 16 February is quite a lengthy affair. Only the
aforementioned statement is disputed. The following
statement
by Corcoran is not disputed:
"Mr
Koller's preference is to continue to contract directly with Telkom
for the 90 days but may be willing to consider
contracting with
Bidvest from 1 April."
[51] In
their heads of argument, Telkom's counsel submit that an
interpretation of Daimler's obligations during the lead out phase
that excludes the duty to make the fleet of vehicles available to
Telkom, is absurd, and would deprive the lead out section of
all
business meaning.
[52]
Against this background, I have come to the conclusion, and I find,
that Daimler has failed to discharge the
onus
to prove that it has a clear right to the final interdictory relief
contended for.
(b)
"Injury
actually committed or reasonably apprehended"
[53] With
reference to the trite authorities,
Prest
, at 45, states:
"A
reasonable apprehension of injury is one which a reasonable man might
entertain on being faced with the facts which the
court finds to
exist on a balance of probabilities. The test for apprehension
is an objective one. The applicant must
therefore show
objectively that his apprehensions are well grounded. Mere
assertions of his fears are insufficient.
The facts grounding
his apprehension must be set out in the application to enable the
court to judge for itself whether the fears
are indeed well
grounded."
[54] After
dealing in the founding affidavit, in rather brief terms as I have
illustrated, with its contentions for a clear right,
and before
turning to the subject of the alleged absence of an alternative
remedy, Daimler only states the following:
"99.
Moreover, given the significant risks that will arise in relation,
inter alia
,
to loss and/or damage of the vehicles as from 1 April 2015, there is
a reasonable apprehension that the applicant will suffer
damages if
it does not regain possession of the vehicles (regard being had, in
particular, to the large number of vehicles involved)."
[55] Under the
heading "balance of convenience", which does not, strictly
speaking, apply to final interdictory relief,
Daimler, rather
vaguely, only states the following:
"104.
In particular, in circumstances where DFM intends, on 1 April
2015, to offer certain of the Vehicles for sale to
Telkom in terms of
clause 7.6.2 of the 2008 SLA (and to offer them for sale to a third
party if Telkom does not take up the offer
– which may include
Bidvest if it wishes to purchase the Vehicles), the balance of
convenience weighs in favour of giving
effect to DFM's rights in
relation to the vehicles."
[56] In
paragraph 82 of the founding affidavit Daimler also claims that
Telkom's continued possession of the Vehicles after 31 March
2015
would be "severely prejudicial" to Daimler, and the
following points are made:
1. Daimler would receive no consideration for Telkom's
continued possession and use of the Vehicles. This is
incorrect.
In the counter-application, it is proposed that
Daimler will continue to receive payment at the normal rates,
escalated, if applicable,
in line with the Consumer Price Index.
2. The Vehicles would not be subject to insurance
cover. This is not correct. Telkom insures the Vehicles.
3. Daimler would be liable for expenses arising from the
use of the Vehicles by Telkom including traffic fines, E-toll fees
and
similar expenses. This is the prevailing situation in any
event and must form part of the handsome compensation of some R66
million per month which, on Telkom's version, which I must accept, is
well in excess of market related tariffs.
4. The Vehicles will depreciate in value. This
will in any case be the position.
5. The Vehicles "are likely to be placed by Telkom
under the control and management of the incoming Service Provider,
Bidvest,
which has no rights in respect of the Vehicles".
There are clear signs, as I have illustrated, that Daimler
contemplates
the sale of these Vehicles to Bidvest, if the latter
would be interested.
6. Alterations to the VTMS and other systems in the
Vehicles would be necessary in order for Bidvest to render the
services to Telkom
and result in warranties in respect of the
Vehicles being rendered void. This appears to be nit-picking
and something which
will be resolved through negotiation.
7.
Daimler would be required to continue delivering the full suite of
services in circumstances where there is no contractual arrangement
in place "and which would be severely prejudicial to DFM".
I have dealt with the issue of the contractual
provisions.
[57]
Telkom's counsel, correctly in my view, argue that Daimler failed to
establish a legitimate fear of irreparable harm occurring
if Telkom
makes use of the fleet during the lead out phase. As I have
indicated, Telkom insures the vehicles and pays Daimler
handsomely
for their use (some R66 million per month on average during the last
financial year).
Counsel
argue that it is important to bear in mind that these are customised
bakkies and cannot be sold or otherwise disposed of
overnight for a
reasonable price. It seems to me that on this basis, it may be
to the advantage of Daimler to have the vehicles
put to proper use
during the lead out phase (of which only about two months remain)
given the handsome compensation received in
the process.
Counsel
reconfirm the obligation on Telkom to insure the vehicles by
referring to a Certificate of Insurance attached to Telkom's
answering affidavit. All the vehicles are directly insured by
Telkom from 1 April 2015 to 31 March 2016.
Counsel
also refer to the rather vague allegations in paragraph 104 of the
founding affidavit, to which I have referred, dealing
with the
potential of selling the vehicles to Bidvest or other parties.
There is no evidence that the potential offers have
materialised, or
that potential offers have fallen away or are likely to fall away as
a result of Daimler being ordered to comply
with its obligations (on
the Telkom version) under the lead out phase. Counsel contend
that the market for some 6 000 used
and customised "Telkom"
bakkies cannot be particularly liquid, and is unlikely to change much
in the next three months
(now two months, to be exact).
[58]
Against this background, I am not persuaded that Daimler managed to
discharge the
onus
of showing "injury actually committed or reasonably apprehended"
if the vehicles were to remain available to Telkom during
the lead
out phase.
(c)
No
other remedy
[59]
Prest
,
at 45, and with reference to the trite authorities says the
following:
"A
final interdict is a drastic remedy and (probably largely for that
reason) in the court's discretion. The court will
not, in
general, grant an interdict when the applicant can obtain adequate
redress in some other form of ordinary relief.
An applicant
for a permanent interdict must allege and establish, on a balance of
probability, that he has no alternative
legal remedy. The
courts will not, in general, grant an interdict when the applicant
can obtain adequate redress by an award
of damages."
[60] The best
Daimler can do, in the founding affidavit, under the heading "absence
of alternative remedy" is the following:
"100. The applicant has no alternative way of
protecting itself and its proprietary interests other than by way of
the relief
sought in this application.
101. A claim for damages would also necessitate Bidvest
being embroiled in a dispute in relation to contraventions of DFM's
rights
by Telkom.
102.
Self-evidently, this would lead to significant complications in
relation,
inter alia
,
to the determination of liability and the quantification of damages."
[61] I
find these submissions vague, and, with respect, utterly
unconvincing.
[62] Counsel
for Telkom argue, correctly in my view, that Daimler has an obvious
alternative remedy – a claim in contract
for payment of
services rendered (which, in any event, is proposed for purposes of
the counter-application, coupled, to boot, with
increases in terms of
the CPI) and a claim for contractual damages if any arise in the next
three months (now two months).
Counsel
submit that there can be no basis for an allegation that such damages
will not be capable of quantification or that Telkom
will be unable
to satisfy a successful claim for damages.
[63] The
claim by Daimler that Bidvest will become "embroiled" in
the dispute is, in my view, nonsensical and without
merit.
[64] In
the circumstances, I have come to the conclusion that Daimler failed
to prove that it has no alternative remedy which, on
the trite
authorities, ought, generally, to result in the application for final
interdictory relief being dismissed.
[65] In
view of all the circumstances, I have come to the conclusion, and I
find, that not one of the requirements for final interdictory
relief
has been proved, so that the application falls to be dismissed.
B. TELKOM'S
COUNTER-APPLICATION
[66] The
counter-application, broadly speaking, is aimed at obtaining interim
relief which will preserve the
status
quo
(including the availability of the
vehicle fleet services) for what is left of the lead out phase,
pending the final resolution
of the disputes between the parties in
accordance with the dispute resolution process provided for in clause
40 of the 2008 SLA.
[67] For
the sake of brevity, I will not quote extensively from clause 40 but
it can be said that it is a wide ranging affair providing
a mechanism
for resolving disputes which may arise between the parties in
connection with,
inter alia
,
the formation, implementation, interpretation, application of the
provisions of, respective rights and obligations of the parties
arising out of, breach or termination of and validity,
enforceability, termination or cancellation of the SLA.
[68] The
present dispute between the parties clearly falls inside the ambit of
what is covered by clause 40.
[69]
Clause 40.4, it should be mentioned, provides that notwithstanding
anything to the contrary contained in clause 40, neither
party shall
be precluded from obtaining interim, "injunctive" or
similar relief from a court of competent jurisdiction.
For this
reason neither party was prohibited from approaching the court for
the relief which they are seeking.
The
requirements for an interim or interlocutory interdict
[70] As
pointed out by
Prest
at 50 the requirements were stated as
follows by Corbett J (as he then was) in
L F Boshoff
Invesments (Pty) Ltd v Cape Town Municipality
1969 2 SA 256
(C)
at 267A-F:
"Briefly these requisites are that the applicant
for such temporary relief must show -
(a) that the right which is the subject-matter of the
main action and which he seeks to protect by means of interim relief
is clear
or if not clear, is
prima facie
established, though
open to some doubt;
(b) that, if the right is only
prima facie
established, there is a well-grounded apprehension of irreparable
harm to the applicant if the interim relief is not granted and
he
ultimately succeeds in establishing his right;
(c) that the balance of convenience favours the granting
of interim relief; and
(d)
that the applicant has no other satisfactory remedy."
(i)
Prima facie
right
[71] I
have dealt with, and considered, the provisions of the 2008 SLA and
schedule 13. In order to interpret the
contract, and
determine the intention of the parties, I have referred to certain
authorities and also considered some surrounding
circumstances,
including the utterances of Mr Koller, Daimler chief, indicating that
he also considered the maintenance of the
fleet services throughout
the lead out phase to be appropriate.
[72] It
is not necessary to re-visit all these issues. I have expressed
the
prima facie
view that Telkom's interpretation is the most reasonable and
businesslike one. On that interpretation, the fleet services
must be maintained throughout the lead out phase, subject to
reduction as the Bidvest vehicles come into play. I refrained
from finally pronouncing on the subject, indicating that, in my view,
it was not necessary to do so in order to decide whether
or not a
clear right had been proved by Daimler and, secondly, such a final
pronouncement would usurp the functions of the final
arbiter on the
subject, such as the clause 40 arbitration body or another
appropriate forum.
[73]
Nevertheless, on my interpretation of the contract, Telkom has a
prima facie
right to the interim relief, even if it were to be
"open to some doubt" in the words of the learned Judge.
(ii)
A well-grounded apprehension of
irreparable harm to Telkom if the interim relief is not granted
[74] I
have quoted the undisputed evidence of Telkom about the catastrophic
results that will ensue if the fleet services and the
use of the
vehicles were to be removed. I have indicated that it is
common cause that Bidvest is not able to immediately
step into the
breach, but will only do so gradually.
[75] In
the result, I have come to the conclusion, and I find, that the
required well-grounded apprehension of irreparable harm
has been
properly established by Telkom.
(iii)
The balance of convenience
favours the granting of the interim relief
[76] The
catastrophic results that will come about if the fleet services were
to be interrupted at this stage overlapse with the
question of the
balance of convenience.
[77] The next
leg of the enquiry is to determine whether the prejudice or
inconvenience to Telkom, if the interim relief is not
granted, will
exceed the inconvenience to Daimler if the interim interdict is
granted.
Prest
, at 69, puts it as follows:
"The
balance of convenience is the test whereby a court considers the
potential injustice to the plaintiff if the injunction
is withheld
and the potential injustice to the defendant if the injunction is
granted. The course to be taken is that which
would involve the
least risk of ultimate injustice, having regard to the actual and
potential rights and liabilities of the parties
on both sides."
[78] It
is common cause that the prejudice and inconvenience to Telkom, if
the relief is not granted, will be particularly severe,
if not
catastrophic.
[79] I
have dealt with the potential harm or inconvenience to Daimler if the
relief were to be granted: Daimler would simply carry
on, for another
two months, doing what it has been doing for the last 15 years.
It will be handsomely rewarded, and, in certain
respects, the rates
will be increased according to the CPI. It will have more time
to find a market for the 6 000 customised
vehicles, while
receiving handsome compensation in the meantime. Its interests
in the vehicles remain protected, because
Telkom provides proper
insurance.
[80] In
my view, there is no question that the balance of convenience favours
Telkom. I find accordingly.
(iv)
No alternative remedy
[81] In
these urgent, and, in my view, desperate, circumstances, I see no
alternative remedy for Telkom to avoid the imminent interruption
of
the fleet services.
[82] The
granting of an interim interdict is a discretionary remedy.
Prest
, at 79, puts it as follows:
"In
every case of an application for an interdict
pendente
lite
the court has a discretion whether
or not to grant the application."
[83]
In my view, this is a proper case for exercising my discretion in
favour of Telkom.
Conclusion
[84] In
all the circumstances, and for the reasons mentioned, I have come to
the conclusion that the Daimler application for final
relief ought to
be dismissed and the Telkom application for interim relief ought to
be granted.
[85] As
to the specific relief I propose granting in respect of the
counter-application, it takes into account, partly, certain
proposals
made on behalf of Telkom in draft orders submitted to me.
The
costs
[86] I
see no reason for departing from the normal approach that the costs
should follow the result. No arguments to the contrary
were
submitted to me.
[87]
There was some argument presented to me about the costs of the
proceedings of 30 March which led to the 30 March
order
being granted. After due reflection, I have come to the
conclusion that these costs should also follow the result.
The
order
[88]
I make the following order:
1.
Daimler's application for final interdictory relief is dismissed.
2. Pending the final resolution of the disputes between
the parties (which arise in these proceedings) in accordance with the
dispute
resolution process referred to in clause 40 of the 2008
Service Level Agreement ("SLA"):
2.1 Daimler is ordered to comply with the following
obligations during the lead out phase, 1 April to 30 June 2015, of
the SLA:
2.1.1 to use its best endeavours to render to Telkom all
assistance as indicated in the exit management plan (schedule 13 to
the
SLA);
2.1.2 in addition thereto, to use its best endeavours to
provide all other assistance which may be reasonably necessary to
enable
Telkom to transfer the provision of the Services to a third
party, including to ensure that the existing fleet of vehicles as at
31 March 2015 remains available for the ongoing conduct of
Telkom's business activities;
2.1.3 to update the lead out plan in response to Telkom
informing it in writing of new requirements;
2.1.4 in addition thereto, to use its best endeavours to
provide such additional information and assistance as identified by
Telkom
as and when the need arises;
2.1.5 to provide all assistance necessary to as to cause
the minimum of disturbance and disruption of a material nature to the
Day
to Day operations of Telkom as a result of expiry of the SLA;
2.1.6 to hand over and grant access to all data and
information required to enable a hand over of services to the new
Service Provider
(Bidvest);
2.1.7 to allow full access to data relating to fleet
management.
2.2 Daimler is ordered to, during the lead out phase, 1
April to 30 June 2015, render reasonably necessary assistance to
enable
Telkom to transfer the provision of the Services to the new
Service Provider, Bidvest, as follows:
2.2.1 respond timeously and in a forthright manner to
requests for information, both from Telkom and from Bidvest;
2.2.2 maintain the operational capacity and ability to
render to Telkom the full suite of Services required, for as long as
is required
by Telkom in order to ensure uniterrupted fleet services,
until conclusion of the lead out phase;
2.2.3 continue to provide uninterrupted fleet services
to Telkom;
2.2.4 scale down services at Telkom's request in step
with the scaling up of services by Bidvest.
2.3 Daimler will be remunerated by Telkom for such
services actually provided during the lead out phase aforementioned
at the rates
applicable in terms of the SLA, plus an increase in line
with the Consumer Price Index ("CPI"), on those items that
are
subject to CPI increase.
3. The orders made herein are without prejudice to any
legal proceedings which either Daimler or Telkom may be advised to
pursue
in due course.
4. Daimler is ordered to pay the costs of its own
application as well as the costs of Telkom's counter-application,
including the
costs of two counsel, such costs to include the
reserved costs of the hearing of 30 March 2015.
W
R C PRINSLOO
JUDGE
OF THE GAUTENG DIVISION, PRETORIA
22599-2015
HEARD
ON: 9 APRIL 2015
FOR
THE DAIMLER: C WHITCUTT SC ASSISTED BY R ITZKIN
INSTRUCTED
BY: WEBBER WENTZEL
FOR
THE RESPONDENTS: C H J BADENHORST SC ASSISTED BY G A FOURIE
INSTRUCTED
BY:EDWARD NATHAN SONNENBERGS
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION PRETORIA
CASE
NO: 22599/2015
BEFORE
THE HONOURABLE JUDGE MR PRINSLOO
ON
THE 24
TH
APRIL 2015
IN
THE MATTER BETWEEN:
DAIMLER
FLEET MANAGEMENT
SOUTH
AFRICA (PTY)
LTD
...........................................................................................
APPLICANT
AND
TELKOM
SA (SOC)
LTD
.......................................................................................
1
ST
RESPONDENT
BIDVEST
BANK
LTD
............................................................................................
2
ND
RESPONDENT
DRAFT
ORDER
HAVING
read the documents filed of record, having heard
counsel and having considered the matter:
THE
COURT ORDER THAT:
1.
Daimler's application for final interdictory relief is dismissed.
2.
Pending the final resolution of the disputes between the parties
(which arise in these proceedings) in accordance with the dispute
resolution process referred to in clause 40 of the 2008 Service Level
Agreement ("SLA"):
2.1 Daimler is ordered to comply with the following
obligations during the lead out phase, 1 April to 30 June 2015, of
the SLA:
2.1.1 to use its best endeavours to render to Telkom all
assistance as indicated in the exit management plan (schedule 13 to
the
SLA);
2.1.2 in addition thereto, to use its best endeavours to
provide all other assistance which may be reasonably necessary to
enable
Telkom to transfer the provision of the Services to a third
party, including to ensure that the existing fleet of vehicles as at
31 March 2015 remains available for the ongoing conduct of Telkom's
business activities;
2.1.3 to update the lead out plan in response to Telkom
informing it in writing of new requirements;
2.1.4 in addition thereto, to use its best endeavours to
provide such additional information and assistance as identified by
Telkom
as and when the need arises;
2.1.5 to provide all assistance necessary to as to cause
the minimum of disturbance and disruption of a material nature to the
Day
to Day operations of Telkom as a result of expiry of the SLA;
2.1.6 to hand over and grant access to all data and
information required to enable a hand over of services to the new
Service Provider
(Bidvest);
2.1.7 to allow full access to data relating to fleet
management.
2.2 Daimler is ordered to, during the lead out phase, 1
April to 30 June 2015, render reasonably necessary assistance to
enable
Telkom to transfer the provision of the Services to the new
Service Provider, Bidvest, as follows:
2.2.1 respond timeously and in a forthright manner to
requests for information, both from Telkom and from Bidvest;
2.2.2 maintain the operational capacity and ability to
render to Telkom the full suite of Services required, for as long as
is required
by Telkom in order to ensure uniterrupted fleet services,
until conclusion of the lead out phase;
2.2.3 continue to provide uninterrupted fleet services
to Telkom;
2.2.4 scale down services at Telkom's request in step
with the scaling up of services by Bidvest.
2.3 Daimler will be remunerated by Telkom for such
services actually provided during the lead out phase aforementioned
at the rates
applicable in terms of the SLA, plus an increase in line
with the Consumer Price Index ("CPI"), on those items that
are
subject to CPI increase.
3.
The orders made herein are without prejudice to any legal proceedings
which either Daimler or Telkom may be advised to pursue
in due
course.
4.
Daimler is ordered to pay the costs of its own application as well as
the costs of Telkom's counter-application, including the
costs of two
counsel, such costs to include the reserved costs of the hearing of
30 March 2015.
BY
THE COURT
____________________
REGISTRAR