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[2015] ZAGPPHC 421
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Tasima (Pty) Ltd v Department of Transport and Others (44095/12) [2015] ZAGPPHC 421 (23 June 2015)
IN THE HIGH COURT
OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
Case
Number: 44095/12
DATE:
23 JUNE 2015
In
the matter between:
TASIMA
(PTY)
LTD
..........................................................................................................
APPLICANT
And
THE
DEPARTMENT OF
TRANSPORT
................................................................
1
st
RESPONDENT
THE
DIRECTOR-GENERAL:
...............................................................................
2
nd
RESPONDENT
DEPARTMENT
OF TRANSPORT
THE
MINISTER OF
TRANSPORT
.......................................................................
3
rd
RESPONDENT
WERNER
EDUARD
KOEKEMOER
....................................................................
4
th
RESPONDENT
ROAD
TRAFFIC MANAGEMENT
CORPORATION
........................................
5
th
RESPONDENT
COLLINS
LETSOALO
............................................................................................
6
th
RESPONDENT
KEVIN
JOSHUA
KARA-VALA
.............................................................................
7
th
RESPONDENT
MORNER
GERBER
................................................................................................
8
th
RESPONDENT
GILBERTO
MARTINS
............................................................................................
9
th
RESPONDENT
CHRIS
HLABISA
......................................................................................................
10
RESPONDENT
MAKHOSINI
MSIBI
..............................................................................................
11
th
RESPONDENT
Coram:
HUGHES J
JUDGMENT
Delivered
on: 23 June 2015 Heard on: 29, 30 April and 8 May 2015
HUGHES
J
Background
1.
The applicant was awarded a tender in
2001 to develop, maintain and operate the electronic national traffic
information system (‘the
eNaTIS system’). On 3 December
2001, the applicant and the Department of Transport (‘DoT’)
concluded a Turnkey
Agreement {‘the agreement’). In terms
of the agreement, the applicant commenced with it services to DoT in
2002. The
duration of the applicant’s services was five years.
However, the agreement was extended in 2007 and 2010.
2.
For easy reference, DoT is made up of
the first to third, sixth and tenth respondents and the fifth and
eleventh respondents will
be referred to as RTMC.
3.
In 2010 the Director General (‘DG’)
of DoT purported to extend the agreement for a further five years and
the expiry
date in respect of that extension was 30 April 2015. DoT
has launched a counter-application in these proceedings and seeks to
declare
the extension unlawful.
4.
The applicant alleges that as far back
as 2012 and during the course of this agreement, DoT has been
attempting to unlawfully transfer
the eNaTIS system away from them,
and as a result a dispute arose regarding the duration and status of
the agreement. The culmination
thereof was the applicant proceeding
on an urgent basis to this court to seek an interim interdict to
prevent DoT from breaching
the agreement and a declaratory compelling
them to comply with the terms of the agreement, pending the outcome
of the dispute resolution
process encapsulated in the agreement.
5.
The urgent application was heard by
Mabuse J and he granted an interim order on 17 October 2012 (‘the
Mabuse order’).
6.
For completeness I set out the he Mabuse
order which reads as follow:
“
1. That
pending the finalisation of the dispute resolution proceedings
instituted by the applicant in terms of clause 24 and schedule
13 of
the agreement between the applicant and the first respondent dated
3
December 2001, as subsequently amended and extended, the first
respondent is hereby directed:
1.1
To
perform its obligations in terms of the agreement
1.2
Without limiting the generality of 1.1 supra, to comply with the
payment obligations as defined in paragraph 17 of the applicant’s
founding affidavit.
1.3
To
pay the costs of this application
7.
Following upon the Mabuse order five
subsequent contempt orders were granted, either by consent between
the parties or by this court.
The five orders were that of Strijdom
AJ on 26 March 2013; Ebersohn AJ on 15 July 2013; Fabricius J on 27
August 2013; Nkosi AJ
on 5 November 2013 and Rabie J on 21 January
2014.
8.
I must hasten to add that RTMC was
joined in these proceedings in 2013 and became a respondent when
Fabricius J presided over the
matter. In the application before me,
the applicant contends that the previous orders are still in
existence and the respondents
have breached all these orders.
9.
As stated above the extension of the
agreement came to an end on 30 April 2015. The applicant had referred
the dispute regarding
the validity and lawfulness of the extension of
the agreement in terms of the dispute mechanism set out in the
agreement. By 30
April 2015, when the extension of the agreement came
to a head, the dispute had not been attended to nor finalised.
The
position at the hearing of this matter
.
10.
In terms of schedule 15 of the
agreement, upon termination, a transfer management plan must be
negotiated and agreed between the
applicant and DoT. This is to allow
for a phased and gradual transfer of functions from the applicant to
DoT.
11.
The situation that now prevails is that
DoT and RTMC are persisting for an immediate handover of the eNaTIS
system from the applicant
to RTMC. The applicant contends that this
is contrary to the transfer management provisions as set out in the
agreement.
12.
The applicant further, contends that
RTMC had commenced advertising positions for staff to take immediate
transfer of the eNaTIS
system. In addition instructions had been
issued by DoT to the provinces that they are not to communicate any
longer or co-operate
with the applicant except in limited maintenance
matters of the eNaTIS system.
The
main application and counter-application
13.
In light of the transitional management
provisions, schedule 15, which has not been implemented and
concluded, the applicant urgently
seeks to prevent further breaches
of the agreement (‘the main application’). Especially,
the proposed, premature takeover
of the eNaTIS system by DoT and
RTMC. The respondents oppose the application and dispute the issue of
urgency.
14.
DoT proceeded to institute a
counter-application on an urgent basis. The urgency and competence of
this counter-application is disputed
by the applicant who contends
that it is purely a collateral review challenge that cannot be
brought on an urgent basis.
The
relief sought by the applicant in the main application
15.
The applicant seeks to enforce the
provisions of the orders mentioned above, thus preventing an unlawful
and premature transfer
of the eNaTIS system.
16.
The relief sought by the applicant is
lengthy and I summarise same below:
(a)
The relief sought by the applicant is
sought on an urgent basis;
(b)
Declarations of breach and wilful
contempt are being sought by the applicant against DoT in respect of
specific paragraphs of the
prior orders’ paragraph 1.1 of the
Mabuse Order, paragraph 3 of the Strijdom Order, paragraph 5 and 6 of
the Fabricius Order,
paragraph 1 of the Rabie Order
(c)
Declaration that RTMC was in breach and
wilful contempt of specific paragraphs of the orders of Fabricius J,
Mabuse J, Strijdom
AJ , Nkosi AJ and Rabie J;
(d)
Declaring the RTMC be bound by all the
orders cited in paragraph 27 of the affidavit of Fannie Lynen
Mahlangu which supports this
application dated 12 March 2015 ("the
supporting affidavit'');
(e)
Declaring that the letters dated 24
February 2015, 25 February 2015 and 4 March 2015 ("the transfer
correspondence", which
respectively comprise annexes "FM27",
"FM25" and "FM28" to the supporting affidavit)
constitute a
breach of the Turnkey Agreement for the provision of the
eNaTIS system (Contract RT1194KA) dated 3 December 2001, as
subsequently
amended and extended ("the Turnkey agreement")
and the instructions contained therein are unlawful and ordering DoT
and
RTMC to withdraw the instructions contained in the transfer
correspondence;
(f)
Declaring that RTMC's advertising for
positions pertaining to the rendering of services under the eNaTIS
system, which adverts are
described in paragraph 104 of the
supporting affidavit, is unlawful;
(g)
Declaring that the instructions given by
DoT and RTMC to the provinces, as described in the meeting summary
annexed to the supporting
affidavit as "FM29” ("the
meeting summary”), or any substantially similar instructions
are unlawful and in
breach of paragraph 3 of the Strijdom Order and
paragraphs 5 and 6 of the Fabricius Order;
(h)
Seeking a host of orders to ensure that
eNaTIS system and services is not transferred until the transfer
management plan envisaged
in schedule 15 to the Turnkey agreement is
implemented, amongst other orders in respect of the transfer
management plan ;
(i)
That DoT and RTMC are interdicted from
taking any steps to implement the purported transfer alluded to in
the transfer correspondence,
or to implement any transfer of the
eNaTIS, the Services (as defined in the Turnkey agreement) or any
related services;
(j)
RTMC is to cease and remove all advertising for eNaTIS related
positions, and to desist from advertising for any such positions
until at least a transfer management plan has been finalised in terms
of the Turnkey agreement and other orders in the like pertaining
to
the provinces;
(k)
DoT and RTMC members be committed to imprisonment for a period of 30
days, alternatively, for such period as the Court deems
appropriate,
this will not come into operation unless there is a breach of the
orders above, a warrant of committal is to be issued
by this
Honourable Court, on the same papers, duly supplemented as necessary,
if the first, second and tenth respondents breach
the order; and
(I)
Ordering the first, second, fifth, tenth and eleventh respondents (as
well as any other respondents who oppose this application),
jointly
and severally, the one paying the others 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; and
17.
I propose to first deal with the
urgency, the main application, the respondent’s
counter-application and then address the
dispute against RTMC.
Urgency
18.
The applicant and the respondents do not
dispute that the main application is urgent, as the applicant seeks
to secure its contractual
and court recognised rights. Further, the
parties are
ad
idem
that the contract came to an
end on 30 April 2015. The matter required determination for the
interest of the public at large. The
applicant submits that these are
contempt proceedings for urgent compliance with several orders
already issued by this court, which
are being flaunted or there has
been non-complied on the part of the respondents.
19.
This matter came before Louw J as urgent
in March 2015. In term of the practise directive of this division,
Louw referred the matter
to the DJP for allocation to the special
motion court, as there was no judge available to deal with this
voluminous
(1300
pages made up of no less than 15 leaver arch files-
extracted from State Attorneys letter to Louw J of 27March 2015) on
an urgent basis. The matter was referred to the DJP and he
allocated
it to the special motion court. In consultation with the parties the
DJP set it down for 29 and 30 April 2015 as a special
motion court
matter.
20.
In my view, all the parties having the
knowledge that the contract was to expire on 30 April 2015, setting
the matter down on the
dates previously mentioned was not feasible at
all, taking into account the adjudication process. The parties in my
view left it
a little too late to be dealt with.
The
main application
21.
From the outset, the applicant persisted
with its argument that at the core of the main application is the
Mabuse order, the applicability
of schedule 15 of the agreement and
the relief sought by the applicant.
22.
The circumstances that prevailed when
the Mabuse order was issued set the tone as to why such an order was
made. In light of the
dispute between the parties regarding the
validity of the extension of the agreement by the DG, the applicant
had initiated the
dispute resolution procedure as set out in the
agreement. The dispute resolution procedure is regulated by clause 24
and Schedule
13 of the agreement.
23.
The applicant submits, that DoT’s
behaviour was contemptuous to say the least, in that the order
“requires the dispute about the validity of the
extension to be resolved through the dispute resolution processes
under the
agreement and requires compliance with the agreement in
full, pending the finalisation of the dispute resolution process. ”
[Extract
from Mabuse Judgment at paragraph 24 and 35; paragraph 23 of
applicant’s heads]
24.
Further, that DoT blatantly disregarded
the fact that they had initiated a dispute and flagrantly disregarded
the Mabuse order that
was in place. This is born out in the
previously mentioned orders granted by this court. The respondent
does not vigorously dispute
such behaviour complained of by the
applicant.
25.
The contemptuous behaviour complained of
by applicant was that prior to the expiration of the agreement DoT
had already appointed
RTMC to take over from 1 May 2015. RTMC had
been appointed prior to the stipulated hand over or transfer period
being implemented
in terms of clause 15 -
Change
control proceedings
and clause 26
-
Transfer
management upon termination,
of
the agreement. However, DoT contends that it has a right to prepare
itself in readiness for when the agreement expires and as
such it is
not in violation any contractual rights when it was advertising for
staff and the like to step into the applicant’s
shoes ones the
agreement came to an end.
26.
Though the applicant initiated the
dispute proceedings by way of a letter on 20 March 2012 the applicant
submits that it was DoT
who failed to ensure the progression of the
disciplinary proceedings. DoT on the other hand argues that even
though they did not
take the dispute any further, this did not
preclude the applicant from applying for a default order in terms
Schedule 13 clause
2.3.3 which read as set out hereafter:
“
Nothing
contained in this clause 2 shall preclude any party from seeking
urgent relief through any court of competent jurisdiction
in respect
of any matter contemplated herein or from obtaining any interdict.”
27.
The applicant argues that all it seeks
is to uphold the Mabuse order which makes provision that the
agreement to be honoured, especially
so in terms of Schedule 15 which
deal with the transfer management plan.
28.
In the main application the applicant
submits that RTMC is bound by the same orders that bind DoT, by
virtue of the Fabricius Order,
wherein Fabricius J specifically made
provision. RTMC submits that it cannot in law be bound by orders that
it had not been a party
to and it could not be bound by an agreement
concluded between the applicant and DoT. The applicant places much
reliance upon the
Mabuse order, RTMC contends, that it was not even a
party in the proceedings when this order was made. RTMC states that
it was
only a party when the orders of Fabricius J, Nkosi AJ and
Rabie J were made. I deal with the dispute against RTMC later in the
judgment.
29.
I turn to address the main application
and in doing so I propose to deal with it under specific headings.
Dispute
mechanisms as set out in the agreement
30.
Clause 24 of the agreement dictates the
manner in which disputes between the parties are to be dealt with.
The section reads as
follows:
“
24
Dispute Resolution
The
parties accept that disputes may arise between them during the course
of the Agreement Any dispute which cannot be resolved
between the
respective
Project Managers
of the Parties shall be dealt with in accordance with the provisions
of Schedule 13- Dispute resolution."
31.
On my reading of Schedule 13 the
sections that have application are clause 2.1-
Referral of the
dispute to joint committee of the parties,
clause
2.3 -
Submission of the dispute to arbitration
and
clause 2.4 -
Appointment of experts or arbitrator by AFSA.
32.
Clause 2.1 of Schedule 13 states that a
dispute which arises will be referred to the Steering Committee and
if it cannot be resolved
then it must be referred to “a
joint
committee of the parties
"
which is to comprises of the DG and the CEO of the Contractor, or
alternatives duly appointed by them.
33.
The applicant argued that the duty was
with DoT to ensure that the dispute it had referred was adjudicated
upon. On the applicant’s
version DoT did not bother to deal
with its dispute by way of the Steering Committee neither did it
ensure that a joint committee
of the parties was to be formed to deal
with the dispute within the requisite 14 days after the dispute was
referred to it.
34.
The Steering committee in terms of
Schedule 11 of the agreement that deals with governance of the
contract states that this committee
will comprise of representatives
of the parties. These representatives will be determined from time to
time and they will be authorised
to make decisions at the committee
meetings on behalf of parties they represented. The chairperson of
the Steering committee would
be the State’s Project Manager or
in his absence a representative of the State.
35.
I do not share the same sentiments of
that of the applicant regarding the responsibility of ensuring the
adjudication of the dispute.
Clause 2.1, in my view, in no way makes
it onerous upon DoT to ensure that the dispute is adjudicated. In
fact both parties are
urged, by way of the Steering committee, to
endeavour as best they can to resolve the dispute within the
requisite time mention
above.
36.
Clause 2.3 of the Schedule sets out that
if the above fails then the dispute shall be resolved by an
arbitrator or arbitrators appointed
by AFSA in terms of the Rules of
AFSA.
37.
Of importance is clause 2.3.2 subsection
1 and 2 which states:
“
2.3.2
The provisions of this clause 2-
2.3.2.1
constitutes an irrevocable consent by the parties to any
proceeding in terms hereof and no party shall be entitled to withdraw
therefrom
or to claim at any such proceedings that is not bound by
such provisions; and
2.3.2.2
are severable from the remaining provisions of this contract and
shall remain in effect notwithstanding the termination of or
invalidity
for any reason of the contract
38.
To my mind on a reading of the two
clauses above together with clause 2.3, which gives any party to the
dispute, the right to seek
urgent relief through a competent court,
this is yet a further illustration that it is not onerous upon DoT to
ensure that the
dispute is careered forward and resolved. Therein
also lays a duty upon the applicant to ensure that all avenues are
exhausted
after its referral of the dispute.
39.
I am not convinced that from as far back
as August 2012, when the referral of the dispute took place, the
applicant has tried to
enforce and comply with Schedule 13 as set but
above. I say so because after correspondence was exchanged between
the DoT and the
applicant to set up date when the committee could
meet, with no joy coming from DoT, the applicant in 2012 did not see
it fit to
persist with its dispute with the intent of reaching
finality. To me it seems that the applicant left the dispute by the
wayside
and placed all its emphasis on obtain one contempt order
after the next which order operated pending the finalisation of this
dispute
raised and left by the wayside by the applicant.
40.
I hasten to add that DoT is also not an
innocent party in the circumstances to finalise the dispute. However,
there was a mechanism
to address DoT’s conduct when it dragged
its feet in regarding the dispute raised by the applicant. This is
found in clause
2.3 of the Schedule 13, as stated above.
41.
Much was made by both DoT and RTMC that
the applicant could have preceded to arbitration even in the absence
of DoT, if the latter
was not willing to cooperate, thus ensuring
that the dispute that rose in 2012 was resolved.
42.
I share the view expressed that had the
applicant proceeded to arbitration, as provided for by the agreement,
there would have been
no need to bring all the contempt applications
that it embarked upon and this application would not have been
necessary.
Interdictory
relief sought by applicant
43.
In essence the applicant seeks to
interdict DoT, its officials, the DG, RTMC, Mr Hlabisa, Mr Msibi from
taking any steps to effect
transfer of the eNaTIS system and services
other than in accordance with Schedule 15 of the agreement Associated
with the aforesaid
a declaratory is sought that in the absence of
agreement between the parties as regarding the transfer management
plan then this
court should declare that the transfer period of
eNatis and its services is five years and the terms of the agreement
and the orders
are to remain in full force and effect until for the
duration of the transfer.
44.
The transfer management is regulated by
clause 26, while the transfer management provisions are set out in
Schedule 15 of the agreement.
Clause 2 of Schedule 15 deals with the
“
Transfer
Management Plan
"
45.
According to Schedule 15 the transfer
management plan “/s
necessary”
for the provision of orderly transfer of the eNaTIS and its services
from the applicant to DoT or a third party (this appears in
the
introduction of this schedule).
46.
Clause 2.1 of Schedule 15 makes
provision that the applicant
“
shall”
take step to transfer to the DoT or
“
designated
provider”.
Further, in
clause 2.2 under the heading
Agreeing
and carrying out of a transfer management plan
the following is stated:
“
...Contractor
shall
upon receipt of the
State’s written request for a transfer management plan meeting,
which request
shall
be made
no later than 90 (ninety) days after the Agreement Termination Date,
meet with the State and agree on a transfer management
plan with
agreed times scales
, which
transfer management
shall,
unless
otherwise agreed by the parties, be substantially similar to the
Migration Plan, mutatis mutandis,
be
completed within 30 (thirty) days of the date of the request by the
State;”
[ My emphasis
in bold].
47.
The Concise Oxford English
Dictionary the use of the word
“shall”
as
a verb is noted as:
1- expresses the future;
2-
express a strong assertion or intention; 3- express an
instruction or command.
48.
On my analysis of the above clause 2 I
am of the view that the transfer from the applicant to DoT or
designated
provider
is instructive and a
command. Note the provision of a designated provider. In this
instance RTMC established as an independent
entity in terms of The
Road Traffic Management Corporation Act 20 of 1999
, by virtue of its
statutory mandate would fall into that category.
49.
In clause 2.2, from my reading the
transfer management is to be completed within 30 (thirty) days from
the date of the request by
DoT, this request
shall
(instructive)
be within 90
(ninety) day of after the date of termination of the agreement. The
time agreed times scales mention in 2.2 should
be substantially
similar to that in the Migration Plan, Schedule 18 of the agreement
deals with this plan.
50.
I am alive to the warning sound out
by Wallis JA in
National Joint Municipal Pension Fund v
Endumeni Municipality 2012(4) SA 593
at
604B-D:
“
Judges
must be alert to, and guard against, the temptation to substitute
what they regard as reasonable, sensible or businesslike
for the
words actually used. To do so in regard to a statute or statutory
instrument is to cross the divide between interpretation
and
legislation;
in contractual context
it is to
make a contract for
the parties other than the one they in fact made
.”
[That
underline is my emphasis]
51.
The agreement therefor already has
agreed times frames for requesting the transfer management plan and
the completion of such transfer
management. Thus the declaratory
sought to declare the transfer period of eNatis and its services to
be five years cannot be granted.
The parties are bound to the terms
of the agreement within which they contracted. The court has no
business to impute terms or
condition to an agreement contracted into
by the parties. The parties are bound by the terms of the agreement
entered into.
Whether
to allow the counter-application
.
52.
As stated above in response to the main
application DoT instituted a counterapplication to declare the
extension by the DG
of the agreement for five years ending
30
April 2015 unlawful. DoT from the outset
made that the concession that this counter- application was brought
late. However DoT,
submitted that its counterapplication is
exactly the same dispute that the applicant referred in term of
Schedule 13 of the
agreement, that being the validity of the
extension to the agreement by the DG in 2010, which as yet has not
been adjudicated.
53.
DoT argued that from the Mabuse judgment
it is evident that Mabuse J acknowledged that there was a material
dispute between the
parties as to whether the agreement was amended
and extended to 30 April 2015.
54.
The applicant opposed the
counter-application. The applicant submitted that DoT was bringing a
collateral challenge as a defence
to the main application and as such
it was not permitted to do so. The applicant contends that this
collateral challenge amounts
to nothing more than an “illegitimate
appeal”. The applicant further submitted that the urgency and
lengthy delay in
DoT bringing this counterapplication,
especially at this juncture, is clearly under the guise of an urgent
so- called collateral
review.
55.
On my reading of the judgment of Mabuse
J the dispute refer in terms of Schedule 13 was the
prime
facia
case advanced by the
applicant which afforded the applicant the interim relief granted by
the Mabuse order.
56.
DoT contends, that in disguise the main
application seeks to enforce a decision, which amounts to an
administrative act and as such
DoT has the right, at this stage, not
to comply with the unlawful decision and pursue its
counterapplication.
57.
DoT makes reference to the case on
Minister
of Transport v Prodiba (Pty) Ltd (20028/2014)[2015 ZASCA 38 (25 March
2015) “Prodiba”.
It
was argued that similar circumstances existed in the Prodiba case
where the applicant Prodiba brought an application to declare
the
decision of the ADG to cancel the agreement unlawful and sought an
order directing DoT to comply with its obligations terms
in terms of
the agreement. A counter- application was brought to declare the
addendum agreement void
ab
initio.
DoT contended that the
SCA did not take issue with the manner of approach and likewise
should this court.
58.
Though the delay in bring the
counter-application is one which is very lengthy (from 2012) to say
the least, when considering the
delay, I am mindful of Section 217 of
the Constitution, Section 38(1) (a) (iii) of the Public Finance
Management Act 1 of 1999
(PFMA) and the fact that
“
Policy
making is traditionally primarily the task of the highest ranking
officials in government, namely, the Cabinet or its constituent
Ministers or, at provincial level, the executive council or its
individual members
” See
Probida
at [26].
59.
In addition the agreement between the
parties at Schedule 13 clause 2.3.3 states that nothing in clause 2
precludes any of the parties
from seeking urgent relief through a
court of competent jurisdiction in respect of any matter
contemplated. In these circumstances
DoT is not precluded from
seeking the urgent relief sought in the counter-application.
60.
That being said the applicant has argued
that the collateral review which emerges from the counter-
application can only be used
in limited circumstances and especially
not where the entity seeking to review its own conduct is a public
body. Collateral review
is available to review administrative actions
but not judicial orders, as in this case DoT seeks to use this avenue
against the
enforcement of binding orders. The applicant further
argued that DoT was using the collateral review to circumvent the
finality
of the court orders and the hierarchy of appeals. The delay
from 2012 to 2015 when the counter-application was launched cannot be
wished away, so goes the argument of the applicant, it was up to DoT
to seek a review of the decision of the DG to extend the contract
and
seek that it was void
ab
initio.
61.
Regard should be had of the fact that
the applicant filed the main application on an urgent basis. DoT
filed its answering affidavit
and its counter- application on an
urgent basis on 26 March 2015. DoT filed what it termed as a
preliminary answering affidavit
on 28 March 2015 and on 13 April 2015
served a Rule 35(12) notice on DoT. Prior to the hearing of this
matter DoT provides the
applicant which it requested in terms of the
Rule 35(12) notice. Thus this matter commenced the applicant had not
filed its answering
affidavit to DoT’s counter-application.
62.
DoT argues that the issue raised in the
counter- application was not a new issue. That their answering
affidavit was a response
to the main application and their
counter-application dealt with the dispute that was raised in 2012.
Further, that DoT is the
only party in these preceding’s that
has the knowledge of the reasons for the late institution of the
review outside of the
180 day period. That special circumstances
surround the delay and part thereof is the fact that the DG and his
deputy were the
persons responsible for ensuring that no instructions
were given to initiate the proceedings as they were being investigate
for
their conduct of numerous agreements being extend contrary to
procedures being adhered to. This was the basis upon which the
criminal
and departmental investigations were initiated by DoT. DoT
contends that the applicant cannot rebut this information, is in
possession
of the document it had requested in term of Rule 35(12)
and as such the counterapplication could be adjudicated by this
court.
63.
Naturally the applicant cries fowl that
it only served the preliminary answering affidavit as an indicator to
this court that it
had under the circumstances attempted to at least
have an answering affidavit before court be it a preliminary. They
have not been
given an opportunity to address the issues raised in
the founding affidavit of DoT in full.
64.
DoT submitted that in the preliminary
answering affidavit the applicants did not even attempt to address
the merits of DoT’s
counter-application.
65.
My view is that a party stands and falls
by the path it chooses it litigate. In these circumstances the
applicant chose to proceed
on an urgent basis, having done so it
dictated the course that this matter would embark on. The respondents
had to file their papers
under the dictated path of the applicant so
to should the applicant in the counter-applicant, logic dictates
this. Thus the applicant
is not shielded by the fact that it chose to
only file a preliminary answering affidavit it should have after
receipt of the documents
by way of the Rule 35(12), sought to
supplement its preliminary affidavit. However the enquiry does not
stop there, there is the
issue of the counter- application being
considered
pari
passu
with the main application.
66.
This is in the discretion of the court
and in excising this wide discretion I take into account the fact
that the basis of the counter-application
is a dispute raised by the
applicant already, I also consider the delay in that dispute being
adjudicated, I consider that the
collateral challenge raised is one
that validates or invalidates the relief sought in the applicants
main application, I take into
account Section 217 of the Constitution
and , Section 38(1) (a) (iii) of the (PFMA) and I am guided by
principle enunciated in
TRUTER
v DEGENAAR
1990 (1) SA 206
(T)
and the cases mentioned therein, with special reference to page 210
of the judgment where VAN DIJKHORST J stated:
“
Die
Hof in
Van den Bergh and
Partners Ltd v Robinson1952 (3) SA 747 (SR)
op
748E se na aanleiding van die Engelse praktyk die volgende:
'In
Mersey Steamship Co v
Shuttleworth & Co
52 LJ
QBD 522 it was held that the defendant has a right to resist judgment
'unless the counterclaim set up by such defendant is
shown to be
frivolous, unsubstantial and to be pleaded for the mere purpose of
delay'. There are indications in some of these other
cases that, in
our practice at least, these reasons may not be exhaustive, and that
judgment may be entered for the plaintiff,
despite a counterclaim
exceeding his claim, where other good or sufficient reason for this
course appears. And this would seem
to be in conformity with our
Rules of Court. By Order 10, Rule 13, a discretion is conferred on
the Court, which may for good cause
order the separate trial of the
plaintiffs claim and the claim in reconvention, and I do not think
the term 'good cause' should
be restrictively interpreted when the
justice of the case demands such separation. But, generally speaking,
and in the absence
of cogent reason to the contrary, it is obviously
desirable that the process of a Court should not issue until all
claims and counterclaims
between the parties, not being manifestly
unsubstantial, have been determined. If conflicting claims are made
the subject of judicial
order piecemeal, one party may suffer grave
prejudice. The final event may show a large sum due to him, yet he
may find it difficult
or impossible to recover an amount paid under
an earlier judgment.’
Die
uitgangspunt sowel as konklusie is dus in ooreenstemming met ons
gemene reg. Eis en teeneis behoort
pari
passu
bereg te word maar die
Hof het 'n onbeperkte diskresie om anders te gelas, welke diskresie
uit die aard van die saak om goeie redes
uitgeoefen sal word. Kyk ook
Rhodesia Omnibus Co Ltd v
Modern Publicity
Lfaf1956
(1) SA 103 (SR) op 104 waarin vonnis op die erkende eis verleen is
maar eksekusie opgeskort is.”
67.
In my view to order the enforcements
sought by the applicant, in the face of DoT’s counter-
application, the applicants referral
in terms of Schedule 13 and the
delay that has already taken place from 2012 together with the
factors I have referred to, it would
be irresponsible and not in the
interest of justice if the counterapplication which embodies
exceptional circumstances is
not considered.
RTMC
opposition
68.
RTMC was established as an independent
entity in terms of The
Road Traffic Management Corporation Act 20 of
1999
. Its statutory mandate conferred by national legislation is to
enhance the quality of South Africa’s road traffic services
and
management of road traffic.
69.
In the main, the applicant seeks to bind
RTMC to the seven orders that it has obtained against DoT. Some of
which were made prior
to RTMC becoming a party to these proceedings.
The applicant claims that RTMC is in breach of the agreement
concluded between the
applicant and DoT. This appears in the
applicant’s founding papers.
70.
What comes to the fore is that DoT has
RTMC lined up to take over from the applicant at the expiration of
the agreement on 30 April
2015. In essence DoT and RTMC state that
RTMC would be stepping into the shoes of its statutory mandate and
obligation on 1 May
2015. The applicant contends this cannot be as
there is still a transfer period of five years that needs to be taken
into account
for proper hand over of the eNatis system.
71.
RTMC, though not a party to the
agreement between the applicant and DoT, contends that at best this
agreement came to an end on
30 April 2015, taking into account the
purported extension. The validity of such extension is disputed by
DoT and this forms the
basis of DoT’s counter application. In
the counter application DoT seeks an order declaring the extension
null and void.
72.
RTMC further contends, that the Mabuse
order, upon which the applicant placed much reliance, results in the
applicant not making
it past the high water mark of 30 April 2015, as
this order records that the contract comes to an end on 30 April
2015.
73.
Be that as it may, in the applicant's
heads of argument, at paragraph 25, the applicant contends that RTMC
cannot raise any aspect
of the termination clause as a defence as
“
it
is not a party to the agreement and has no legal standing to make
such an assertion
74.
How then does the applicant propose to
address the fact that they joined RTMC to the same proceedings where
they sought enforcement
of the agreement by DoT? In my view if the
latter is the stance the applicant is taking then surely RTMC’s
should not be
a participant in this dispute. The applicant was
instrumental in joining RTMC as a party and if they now contend that
RTMC has
no legal standing then clearly this is a case misjoinder in
respect of the dispute relating to the agreement.
75.
It also stands to reason that if indeed
RTMC has no legal standing, even if it’s just regarding the
agreement, then surely
RTMC cannot be in contempt of performance in
respect of such agreement, as it was not a party to the agreement.
76.
In
Herbstein and Van Winsen
The Civil Practice of the High Court of South Africa, fifth edition
at page 240 the following is said of
misjoinder:
“
The
test to determine whether there is a misjoinder is whether or not the
party has a direct and substantial interest in the subject-matter
of
the action, i.e.
a
legal
interest in the subject-matter of the litigation which might be
affected prejudicially by the judgment of the court... Thus,
a party
that has a financial or commercial interest in the relief claimed,
but no legal interest, should not be joined by the plaintiff.”
IT.
I am of the view the principle is
equally applicable in the case of plaintiff and defendant. See
Agriplas
(Pty) Ltd v And rag & Sons (Pty) Ltd
1981 (4) SA 873
(C) at
890A-B:
"A
person can only claim to be joined and indeed to intervene if he has
a substantial and direct interest in the subject of
the litigation.
This appears to be well-established. See
Henri
Viijoen Pty Ltd v Awerbuch Brothersl9S3 (2)
SA
151 (0) at 166 - 169;
United
Watch & Diamond Co (Pty) Ltd and Others v Disa Hotels Ltd and
Anotherl972 (4) SA
409 (Cl.
A
person who is merely entitled to royalties cannot be said to have a
direct and substantial interest in the reputation and goodwill
of
another. This is not a legal interest although it may be a strong
financial or commercial interest. On the authorities this
is not
enough. Cf
Fulton & Co v
Knox
1917 WLD 48
;
Kinemas
Ltd v African Theatres Ltd
1928
WLD 100
;
Rusmarc (SA) (Pty)
Ltd v Herndon Enterprises (Pty)
Lft/1975
(4) SA 626 (W) at 632 - 635."
78.
In the circumstances I find that indeed
this is a case of a misjoinder as RTMC does not have a legal interest
in the litigation
between the applicant and DoT, in respect of the
agreement as it was not a party to the agreement, thus as stated by
the applicant,
it has no legal standing.
79.
This leaves the contempt allegation by
the applicant in respect of the Fabricius order of 23 August 2013.
This order, essentially
paragraph 5, in my view is an extension of
paragraph 3 of the Strijdom order of 26 March 2013. What comes to the
fore from the
Fabricius order, in relation to RTMC, is that the
clauses from the Strijdom order are incorporated in the Fabricius
order.
80.
RTMC submits that they are not aware and
neither were they a party when the facts upon which the Strijdom
order was sought and granted.
They were cited as a party when the
Fabricius order was granted by consent.
81.
The applicant states at paragraph 39
of its founding papers that the Strijdom order was an order made by
consent of the parties
after the DoT capitulated to the applicants
contempt proceedings which was
“precipitated by, inter
alia, the DoT’s failure to grant authorisations and approvals
in respect of PQRs, its failure
timeously to pay under payment
certificates, and attempts made by it unlawfully to reroute work
under the agreement away from Tasima.
”
82.
Further, the applicant states that due
to the unlawful conduct of RTMC and the abdication of DoT’s
duties, it sought and by
consent the Fabricius order come to the
fore.
83.
On an examination of the Fabricius
order, according to the applicant it binds RTMC to the Strijdom order
and all the other orders
served upon it or brought to its attention,
what is notable is that these orders especially, Fabricius and
Strijdom orders are
in my view premised on the agreement concluded
between the applicant and DoT. If I am correct, as RTMC is not a
party to that agreement
and does not have legal standing in respect
of that agreement, is it bound by the applicant’s
interpretation of what constitutes
unlawful conduct in terms of that
agreement? My view is that RTMC is not.
84.
In the circumstances the applicant
cannot seek a committal due to a breach in relation to the agreement
if RTMC is not a party to
same. It is trite that a committal in
contempt proceedings would only be granted if RTMC was in wilful
default of the order or
in reckless disregard of the order.
85.
Fakie NO v CCII Systems (Pty)
Ltd
[2006] ZASCA 52
;
2006 (4) SA 326
(SCA) at
[9]
, [10],
[24], [40] [53] and [60], at paragraph [9] and [10] Cameron JA stated
the following:
“
[9]
The test for when disobedience of a civil order constitutes contempt
has come to be stated as whether the breach was committed
'deliberately and
mala fide'.
A deliberate disregard is not
enough, since the non-complier may genuinely, albeit mistakenly,
believe him or herself entitled to
act in the way claimed to
constitute the contempt. In such a case, good faith avoids the
infraction. Even a refusal to comply that
is objectively unreasonable
may be
bona fide
(though unreasonableness could
evidence lack of good faith).
[10]
These requirements - that the refusal to obey should be both wilful
and
mala fide,
and
that unreasonable non-compliance, provided it is
bona
fide
, does not constitute
contempt - accord with the broader definition of the crime, of which
non-compliance with civil orders is a
manifestation. They show that
the offence is committed not by mere disregard of a court order, but
by the deliberate and intentional
violation of the court's dignity,
repute or authority that this evinces. Honest belief that
non-compliance is justified or proper
is incompatible with that
intent.”
Also
refer to
Meadow Glen Home Owners Association and Others v
Tahwane City Metropolitan Municipality and Another
2015 (2) SA 413
(SCA)
at [16], [18], [19] and [35].
86.
In the circumstances I am of the view
that as RTMC is not a party to the agreement any breach thereof
cannot be classified as wilful,
deliberate and reckless, as RTMC
could genuinely believe that it was acting within in its statutory
mandate, even though this believe
could be premised on a mistaken.
Analysis
of the applications
87.
I do not propose to repeat all of the
evidence above but I rather intend to deal with the analysis of the
main application and the
counter-application.
88.
Least I not forget that there are
existing orders that have been made by this court and the Mabuse
order is at the heart of all
these orders. From the order and
judgment of Mabuse J it is evident that the main aim was for the
status
qua
to remain until finalisation
of the determination of the dispute raised by the applicant, which is
the issue raised in DoT’s
the counter-application.
89.
In
Zondi MEC
f
Traditional
and Local Government Affairs and Others 2006 (3) SA1 (CC)
on
page 13 at [30] NGCOBO J held:
“
The
rationale for holding interlocutory orders to be subject to variation
seems to be their very nature. They do not dispose of
any issue or
any portion of the issue in the main action. ”
I
am satisfied that the Mabuse order is in fact such an order that can
be varied as the main issue was still to be determined in
terms of
the agreement concluded by the parties.
90.
That leaves the question as to whether
the collateral challenge is the correct manner to have the said order
varied. This issue
was considered in the cases below: In
OUDEKRAAL
ESTATES (PTY) LTD v CITY OF CAPE TOWN AND OTHERS
2004 (6) SA 222
(SCA)
at pages 243 and 244, HOWIE
P ET NUGENT JA said:
“
[29]
In our view, the apparent anomaly - which has been described as
giving rise to 'terminological and conceptual problems of
excruciating complexity' - is convincingly explained in a recent
illuminating analysis of the problem by Christopher Forsyth. Central
to that analysis is the distinction between what exists in law and
what exists in fact,
Forsyth
points out that while a void
administrative act is not an act in law, it is, and remains, an act
in fact, and its mere factual existence
may provide the foundation
for the legal validity of later decisions or acts. In other words
.
an invalid administrative act may, notwithstanding its non-existence
[in law], serve as the basis for another perfectly valid
decision.
Its factual existence, rather than its invalidity, is the cause of
the subsequent act, but that act is valid since the
legal existence
of the first act is not a precondition for the second. ‘It
follows that Y
t)
here
is no need to have any recourse to a concept of voidability or a
presumption of effectiveness to explain what has happened
[when legal
effect is given to an invalid act]. The distinction between fact and
law is enough.' The author concludes as follows:
'(I)
t has been argued that unlawful administrative acts are void in law.
But they clearly exist in fact and they often appear to
be valid; and
those unaware of their invalidity may take decisions and act on the
assumption that these acts are valid. When this
happens the validity
of these later acts depends upon the legal powers of the second
actor.
The crucial issue to
be determined is whether that second actor has legal power to act
validly notwithstanding the invalidity of
the first act.
And
it is determined by an analysis of the law against the background of
the familiar proposition that an unlawful act is void.'(Our
emphasis.)
[30]
Lord Hoffmann drew the same
distinction in R v
Wicks
[1998] AC 92
(HL) ([1997]
[1997] UKHL 21
;
2 All ER
801
;
[1997] 2 WLR 876)
when he said the following at 117A - C (AC)
(815
h - j
(All
ER)): '(T) he statute may upon its true construction merely require
an act which appears formally valid and has not been quashed
by
judicial review. In such a case, nothing but the formal validity of
the act will be relevant to an issue before the justices.'
[31]
Thus the proper enquiry in each
case - at least at first - is not whether the initial act was valid
but rather whether its substantive
validity was a necessary
precondition for the validity of consequent acts. If the validity of
consequent acts is dependent on no
more than the factual existence of
the initial act then the consequent act will have legal effect for so
long as the initial act
is not set aside by a competent court.”
More
simply put by HOWIE P in
V & A WATERFRONT PROPERTIES (PTY)
LTD AND ANOTHER v HELICOPTER & MARINE SERVICES (PTY) LTD AND
OTHERS
2006 (1) SA 252
(SCA)
at 255
held:
“
[10]
The defence which the respondents sought to raise in this respect has
sometimes been called 'collateral challenge'. Its applicability
was
examined and explained by this court in
Oudekraal
Estates (Pty) Ltd v City of Cape Town and Others.
In
brief, it
is
applicable in proceedings
where a public authority seeks to coerce a subject into compliance
with
an
unlawful administrative act.
If
these proceedings are not of
that nature then the
grounding
order will have legal effect until set aside by a reviewing Court.”
91.
Essentially what I take away from these
cases is that even if the administrative act is unlawful it is still
factually an act until
it’s reviewed, unlawful though it might
be. In addition, the validity of the initial administrative act must
have been a
precursor for the consequential act/s that follows. If
the consequential act realise only on the fact that the initial act
exists,
then the initial act will stand until reviewed.
92.
On my understanding the Mabuse order was
sought because the applicant had been advised of the invalidly of the
extension by the
DG. To this end they were even provided with
correspondence. The applicants proceeded with a dispute in terms of
the agreement
in respect of the validity of the extension. Thereafter
they came to court in 2012 to enforce the terms of the extended
agreement
knowing full well that the validly thereof was in dispute.
The Mabuse order and various other orders were sought and obtained by
the applicant with this knowledge. Even so the consequence of the
Mabuse order and other orders are valid until the extension decision
is reviewed and its validity is resolved.
93.
Refer to
OUDEKRAAL
ESTATES (PTY) LTD
at page
241-242:
“
[26]
For those reasons it is clear, in our view, that the Administrator's
permission was unlawful and invalid at the outset. Whether
he
thereafter also exceeded his powers in granting extensions for the
lodgement of the general plan thus takes the matter no further.
But
the question that arises is what consequences follow from the
conclusion that the Administrator acted unlawfully. Is the permission
that was granted by the Administrator simply to be disregarded as if
it had never existed? In other words, was the Cape Metropolitan
Council entitled to disregard the Administrator's approval and all
its consequences merely because it believed that they were invalid
provided that its belief was correct? In our view, it was not. Until
the Administrator's approval (and thus also the consequences
of the
approval) is set aside by a court in proceedings for judicial review
it exists in fact and it has legal consequences that
cannot simply be
overlooked. The proper functioning of a modern State would be
considerably compromised if all administrative acts
could be given
effect to or ignored depending upon the view the subject takes of the
validity of the act in question. No doubt
it is for this reason that
our law has always recognised that even an unlawful administrative
act is capable of producing legally
valid consequences for so long as
the unlawful act is not set aside.”
94.
The initial agreement between the
parties commenced from 1 June 2002 to
31
May 2007. On 30 May 2007 the then DG Ms
Mpumi Mpofu( Mpofu) rejected an attempt by the applicant to extend
the agreement further
and in accordance with the agreement she
invoked schedule 15, the transfer management provisions.
Unfortunately DoT did not provide
a date for the transfer management
meeting and the meeting as prescribed did not materialise. The
services of the applicant proceeded
on a month to month basis. On 12
May 2010 the DG Mr George Mahlalela (Mahlalela) extended the
agreement for another five years.
The Chief
Finantiai
Officer (CFO) advised the applicant on 21 May 2010 that the extension
by Mahlalela was not valid. However, Mahlalela on
18 August 2010
advised the applicant that his directive of 12 May 2010 stood and
they were to ignore the CFO’s advice. And
so the agreement was
extended.
95.
The then Deputy Director-General,
Transport Information Services, Mr Rajesh Jock on 19 March 2012
advised the applicant that in
their view the agreement between the
parties had come to an end on 31 May 2012 as Mpofu had advised then.
On 20 March 2012 the
applicant’s responded and decline to meet
to discuss the Mahlalela extension and on 21 March 2012, Mr Jock in a
letter advised
the applicant that the said extensions validity was
being disputed. This is what led to the applicant referring the
dispute in
terms of the agreement, the Mabuse order and the other
orders that followed.
96.
From the aforesaid it is clear to me
that Mahlalela did not adhere to section 217(1) of the Constitution
in that the extension agreement
was not done in a fair, transparent,
equitable, and competitive and costs effective manner. With regards
to the cost effective
aspect it is illustrated by DoT that in the
Mahlalela extension period the applicant gained R2,5 billion whilst
the initial contract
was for R355 million inclusive of VAT. This also
went against the grain of section 38(1) (a) (iii) of the PFMA.
Clearly, this extension
had not been budgeted for as Mpofu had
confirmed that the agreement had come to an end and had initiated the
transfer management
provisions.
97.
In addition all attempts made by the CFO
and Mr Jonk to pursue and bring the validity of the extension of the
agreement to finality
was averted by Mahlalela as DG. The buck
stopped with him to give instructions to pursue the matter but it was
not in his interest
to do so.
98.
Ironically in
Prodiba
similar circumstances existed involving yet again Mr Mahlalela as the
DG. Likewise in this matter, as in
Prodiba
the DG did not advance any reasons for not proceeding in terms of
section 217 of the Constitution and the PFMA. The SCA found that
“
By
not embarking on
a
competitive
bid process, particularly given the nature and scale of the services
to be provided, including the cost implications,
Mr Mahlalela erred
fundamentally...By concluding agreement and incurring a liability for
which there had been no appropriation,
he not only erred, but acted
against mandatory statutory prescripts and against the constitutional
principles of transparent and
accountable governance. For all these
reasons the agreement is liable to be declared voidab initio.”At
paragraph [40].
99.
I align myself with the
dicta
in
Prodiba.
In my view in the circumstances of this matter the administrative act
of the DG in extending the agreement was unlawful and as
such the
consequential acts that flow therefrom relied on the unlawful
administrative. I therefor exercise my discretion and permit
the
collateral challenge of the validity of the agreement. In doing so in
terms of my stance with
Prodiba
I find for the reasons I have set out above that the agreement is
void
ab
initio.
The
8 May 2015 order
100.
On conclusion of the parties arguments
on 30 April 2015 I made an order that “By agreement the
applicant will continue running
the eNaTIS system subject to the
right of reasonable access of the CEO of RTMC for purposes of
monitoring the system; judgement
was reserved to 8 May 2015. On the
later date I made another order reserving my judgment.
101.
The respondent’s brought an urgent
application to set aside my order of 8 May 2015 and the costs to be
paid by the respondent’s
if opposed.
102.
The basis upon which the order of 8 May
2015 was constructed was relayed to the parties prior to the matter
being heard. The court
had become aware during the construction of
the judgment that the case of
Minister
of Transport v Prodiba
Constitutional.
On this understanding the court opted to await the outcome of the
Constitutional challenge.
103.
The order made of 8 May 2015 is an
interlocutory order and as stated in
ZONDI
above, this type of order is subject to variation. Simple
interlocutory orders may be varied, reconsidered or rescinded on good
course shown.
104.
At the hearing of this application the
court was appraised of the developments in respect of
Prodiba
at the Constitutional Court and it became apparent that leave to
appeal to the Constitutional Court was still to be considered
and had
not been granted.
105.
The court had laboured under the belief
that leave had already been granted and that a decision was eminent.
When the court was
advised of the correct status of
Prodiba
the court appreciated that it would be just and equitable to vary it
order as the facts that the laboured under in making the order
had in
fact changed.
106.
On the facts of this case the court saw
fit that having laboured under a mistake it was entitled to bring the
case to finality,
promote the constitution and prevent chaos in the
circumstances.
107.
For the reasons set out the order of 8
May 2015 was varied and the order was that judgment was reserved.
108.
As regards the issue of costs in this
urgent application regarding the order, I am of the view that this is
a case where the appropriate
order would be that each party is to pay
their own costs.
Conclusion
109.
In the main the agreement sets out the
process to be followed in terms of the transfer management plan in
clause 2.2 of Schedule
15. Taking into account that there has to be
proper transfer and taking into account that DoT had initiated this
transfer management
plan in 2007 but did not proceed to complete same
I am of the view that in these circumstances the transfer management
of the system
cannot in the main be a lengthy process since the
applicant has had the benefit of running the eNaTIS system on a month
to month
basis from 2007 to 2010 and a further five years thereafter.
I do appreciate that a transfer and hand over has to take place as
both parties had agreed this would be necessary in the agreement and
thus there is a real need for a transfer period. In the circumstances
DoT is required to request the transfer within five days of the date
of this order and the transfer is to be completed within thirty
day
from the date of the request.
110.
The costs are to follow the result.
111.
in conclusion I make the following
order:
111.1
The main application of the applicant
against the respondents is dismissed.
111.2
The counter-application of the first,
second, third, sixth and tenth respondent’s succeeds.
111.3
The costs of the urgent application
heard on 14 May 2015 is to be borne by the respective parties.
111.4
The decision of the then Director-
General of the Department of transport, Mr George Mahlalela of 12 May
2010 to approve and extend
the eNaTis Project RT1194KA Contract for a
fixed period of five years effective from 1 May 2015 is reviewed and
set aside.
111.5
The extended contract which took effect
from 1May 2010 and expired on 30 April 2015 is declared void
ab
initio.
111.6
DoT is required to request the transfer
of the eNaTIS system and related services within five days of the
date of this order and
the transfer is to be completed within thirty
days from the date of the request.
111.7
The respondents are granted leave to
supplement these papers and to approach this Honourable Court should
the applicant commit any
act intended to deliberately delay or
frustrate the transfer in 111.6.
111.8
The applicant is ordered to pay the
costs of the respondent’s in the main application. In respect
of the counter-application
where the applicant is the respondent, the
applicant/respondent is ordered to pay the costs of the
respondents/applicants. Such
costs are to include the costs of the
employment of senior and junior counsel.
W.
Hughes Judge of the High Court
SELEKE
ATTORNEYS
61
LANGERMAN DRIVE
JOHANNESBURG
REF:
TRS/0147/2014
tebohos4@gmail.com
MOTHLE
JOOMA SABDIA INCORPORATED
GROUND
FLOOR DUNCAN MANOR
CNR
DUNCAN AND BROOKE STREETS
PRETORIA
REF:
TA MOTHLE/LIOUSE/TAM4238
thipem@mjs-inc.co.za
:
louises@mis-inc.co.za
THE
STATE ATTORNEY, PRETORIA
SALU
BUILDING
316
THABO SEHUME STREET
PRETORIA
clithole@iustice.gov.za
;
ichowe@iustice.gov.za
WEBBER
WENTZEL ATTORNEYS
10
FICKER RAOD JOHANNESBURG
REF
V MOVSHOVICH/S MCKENZIE/D CRON 2313246
Dylan.cron@webberwentzel.com