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2014
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[2014] ZAGPPHC 2
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Prodiba (Pty) Ltd v Minister of Transport N.O and Others (34273/2013) [2014] ZAGPPHC 2 (9 January 2014)
IN
THE NORTH GAUTENG HIGH COURT, PRETORIA
(REPUBLIC
OF SOUTH AFRICA)
CASE
NO.: 34273/2013
DATE:
09 JANUARY 2014
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
In
the matter between:
PRODIBA
(PTY)
LTD
.........................................................................
Applicant
And
THE
MINISTER OF TRANSPORT N.O
.
…...............................
First Respondent
THE
ACTING DIRECTOR GENERAL FOR
THE
DEPARTMENT OF TRANSPORT N.O
.......................
Second
Respondent
THE
GOVERNMENT PRINTING WORKS
..............................
Third
Respondent
CORAM:
PZ EBERSOHN AJ
DATE
HEARD: 12 December 2013.
DATE
JUDGMENT HANDED DOWN: 9 January 2014
JUDGMENT:
URGENT APPPLICATION VARIOUS ASPECTS
EBERSOHN
AJ:
[1]
This court granted the earlier main application against the first and
second respondents on the 30th September 2013. Their application
for
leave to appeal was dismissed by this court. The third respondent was
joined in this application with the first and second
respondents as
it has an interest in this application.
[2]
Paragraphs two and three of the order made in the main application
are at issue in this application. They read as follows:
“
2.
The decision taken by die second respondent on 27 April 2013 to
cancel the third addendum agreement and the attempted cancellation
thereof by the respondents is reviewed and set aside and it is
confirmed that the third addendum agreement is in force for the
full
contractual period thereof.
3.
It is directed and ordered that the Department of Transport is
obliged to comply with its obligations arising from the third
addendum agreement and to make payments to the applicant punctually
and to facilitate full compliance by the applicant of its obligations
in terms of the third addendum agreement.”
[3]
The prayers in the current application read as follows:
1.
This matter is heard as one of urgency in terms of Rule 6(12) of the
Uniform Rules of Court.
2.
Interdicting the first and second respondents from negotiating with
or transacting with the third respondent to undertake the
production
and manufacture of smart card driving licence cards.
3.
Granting leave to the applicant to implement the order granted by
this Honourable Court on 30 November 2013 in the matter issued
under
case number 34273/2013 ("the order”), pending any appeal
process the first or second respondent may apply for
or institute
against the order.
4.
Directing the first and second respondents to give effect to and
implement the order by executing and complying with all obligations
arising from and specified by the third addendum agreement entered
into between the applicant and arising from and specified by
the
third addendum agreement entered into between the applicant and the
first and second respondents on 1 February 2013 (“the
third
addendum agreement).
5.
Costs of the application.
6.
Further and/or alternative relief.”
[4]
This application was brought about by the blatant contemptuous
attitude and conduct of the first and second respondents who
adopted
the attitude that they will not be bothered by the interdict issued
by the court and they propagated openly that they were
negotiating
with the third respondent, and apparently negotiated with them to
manufacture smart card driving licence cards for
them as from
somewhere in March 2014 despite the valid “third addendum
agreement” concluded between them and the applicant
which this
court found to be in force and effect and their open refusal to
comply with their contractual obligations towards the
applicant and
their refusal to pay any amount to the applicant despite the fact
that payment of a considerable amount is long overdue
and despite
this court’s order. In this regard according to the papers the
following amount is overdue R105 333 510,00. Furthermote
the
following payments are due in the near future R12 774 437,00 on or
vefore 1 January 2014 and R3 929 138,00 on or before 28
February
2014. They are thus in a state of open contempt of this court with
regard to the contents of paragraphs two and three
of this court’s
order of 30 September 2013.
[5]
On the day of the hearing of the present application, despite an
earlier indication that they would apply for leave to appeal
from the
Supreme Court of Appeal, it materialised that they have not yet done
so.
[6]
Advocate Cassim SC also handed up a voluminous further affidavit
which, she stated, would be filed with the Supreme Court of
Appeal.
From a cursory glance of the contents of this affidavit it appears
that it refers to many new “grounds” which
they would try
to rely on in argument if leave to appeal was granted by the Supreme
Court of Appeal. Why these “grounds”
were not already
made part of their answering affidavit in the main matter was not
really effectively disclosed and they seem to
be mere afterthoughts.
It is interesting to note that apparently the Minister, who remained
silent all along in the past, and who
owed the court the courtesy of
an explanation as to why he, who is a most material witness and
deponent, could not originally make
an affidavit, as the court simply
does not believe that the other senior members of the Department, his
private secretary and even
the legal representatives of the
respondents could not reach him “as the parliament was not in
session and they did not now
where he was”. He surely must have
come to light subsequently. The suspicion unavoidably arises that the
Minister did not
want to depose to a perjurious affidavit therefore
he remained out of sight and out of reach and hopefully, for him, out
of trouble.
The Court takes a dim view of this attitude on the part
of the Minister. His silence will obviously be held against the
respondents.
It is strange that the legal representatives of the
respondents didn’t advise the respondents of the gravity of the
situation.
During the hearing of the application regrettably strong
words were used from the bar against the applicant and even the
court.
This will be tolerated up to a point and I think this point
has been reached.
[7]
The respondents even falsely contended that this court refused to
grant certain relief to the applicant in the main application.
They
wilfully misconstrued this court’s orders made in the main
application. What the court did when it considered and drafted
the
relief to be granted in the main application, was to draft the orders
in the widest possible terms against the respondents
without being
repetitive and using an excess of words, and there was no intention
on the part of this court to begrudge the applicant
of any relief it
claimed and there was no reason to do so.
[8]
The first and second respondents are already in gross default with
their obligations and it is clear that this court should
step in and
place them on strict terms. It is clear that a rule 49(11) order
cannot be made yet and that portion of the prayers
will be postponed
sine die and the applicant will be granted leave to have the matter
re-enrolled urgently on the same papers,
before this court, suitably
amplified by supporting affidavits. As they clearly induced the
applicant into believing that such
an application was on its way no
order for costs will be made at this stage regarding this aspect of
the application but the court
may reconsidered this aspect later
should it become necessary.
[9]
The open contempt of this court’s order on the part of the
first and second respondents’ calls for a punitive costs
order
to be made against them.
[10]
The following order is made:
“
1.
This matter is heard as one of urgency in terms of Rule 6(12) of the
Uniform Rules of Court.
2.
The first and second respondents are interdicted and forbidden from
negotiating with or transacting with the third respondent
to
undertake the production and manufacture of smart card driving
licence cards and interdicting the third respondent from in effect
to
manufacture such smart card driving licences for drivers of vehicles
in the Republic of South Africa on behalf of the first
and/or second
respondents and/or anybody else.
3.
The first and second respondents are ordered to comply on or before
11:00 on Tuesday the 14th January 2014 with any and all of
the
obligations imposed on them in paragraphs 2 and 3 of the order of
this court of the 30th September 2013 in the main matter
and by the
third addendum agreement and the pay schedule, agreed upon between
them and the applicant, failing which leave is hereby
granted to the
applicant to implement the orders and to execute against the first
and second respondents and to bring further proceedings
against them
in this court on an urgent basis. The financial obligations to be
complied with are for the sake of clarity payment
of R105 333 510,00
on or before 11:00 on Tuesday the 14th January 2014, payment of R12
774 437,00 on or before 31 January 2014
and payment of R3 929 138,00
on or before 28 February 2014. Leave is granted to any party to
approach this court on two day’s
notice to the other sides
about the aspect the party wishes to be rectified in the order.
4.
The portion of the prayers in this matter which can be interpreted as
asking for relief in terms of rule 49(11) is postponed
sine die. If
the first and second respondents have in fact in the interim lodged a
petition for leave to appeal with the Supreme
Court of Appeal, or do
so later, this matter may be re-enrolled, on the same papers,
suitably amplified with supporting affidavits,
on an urgent basis in
this court.
5.
The first and second respondents are ordered to pay the costs of this
application, jointly and severally, payment by the one
absolving the
other one, on the scale of attorney and own client which costs will
also include the costs of two coy^sel.”
P.Z.
EBERSOHN
ACTING
JUDGE OF THE HIGH COURT OF SOUTH AFRICA
Applicant’s
counsel: Adv. J.G. Wasserman SC
Adv.
H.J.Smith
Applicant’s
attorneys: Cliffe Dekker & Hofmeyr Inc
Ref.:
Mr. Gustaf Dreyer/2026369 Tel. 012 4253400
Counsel
for the Respondents Adv. N. Cassim SC
Adv.
J.A. Motepe
Respondent’s
Attorneys State Attorney
Tel.
012 3091567 Ref.: 2114/2013/Z17
Mr.
Motepe