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[2013] ZAGPPHC 69
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Tasima (Pty) Ltd v Department of Transport and Others (A862/12) [2013] ZAGPPHC 69; 2013 (4) SA 134 (GNP) (26 February 2013)
REPORTABLE
IN THE NORTH GAUTENG HIGH COURT,
PRETORIA REPUBLIC OF SOUTH AFRICA
CASE NO: A862/12
DATE: 26/02/2013
In the matter between:
TASIMA (PTY)
LIMITED
.....................................................................
.Applicant
and
DEPARTMENT OF
TRANSPORT
…...............................................
First
Respondent
DIRECTOR-GENERAL: DEPARTMENT OF
TRANSPORT
......................................................................................
Second
Respondent
MINISTER OF
TRANSPORT
.............................................................
Third
Respondent
JUDGMENT
Tuchten J:
1. This is an appeal against an order
of Ledwaba J, sitting in the urgent motion court of this Division on
17 September 2012, when
he dismissed the application brought by the
appellant, Tasima, against the national Department of Transport
(“DoT”),
the Director-General of
Transport (“the DG") and
the Minister of Transport (the Minister”) as first, second and
third respondents respectively.
Although the learned judge refused
leave to appeal, such leave was granted to the full court of this
Division by the SCA on 9 November
2012.
2. The dispute arose from the
provisions of an agreement, said to have been dated 3 December 2001
and concluded between Tasima and
the DoT for the provision to the
latter of an electronic national traffic information system, called
the eNaTIS system. I shall
call the agreement the eNaTIS agreement or
the agreement. Arising from this dispute, Tasima launched proceedings
against the present
respondents for certain urgent mandatory and
declaratory relief pending the determination in the normal course of
its application
for the same relief (“the main application”).
3. Tasima has throughout been
represented by a firm of attorneys in Johannesburg and a
correspondent in Pretoria. In this judgment
we shall refer to
Tasima’s attorney without distinguishing between the two firms.
The respondents have been represented throughout
by the State
Attorney, Pretoria, to whom i shall refer either as such or merely as
the State Attorney. Both sides were represented
by both senior and
junior counsel.
4. For a proper appreciation of the
issues which arose before us, it is necessary to set out the
procedural background to the present
appeal in some detail. By notice
of motion dated 27 July 2012, Tasima gave notice to the respondents
of an urgent application to
be heard on 7 August 2012 (“the
main application”). In its notice of motion, Tasima sought both
interim and final relief
in the form of a declaration that the eNaTIS
agreement had been extended to 30 April 2015 and directing the DoT to
perform its
obligations under the agreement. The respondents opposed
Tasima’s application. Tasima’s founding papers ran to
over
400 pages, so it was reasonable to anticipate that the papers in
the main application, when complete, would exceed 500 pages. The
significance of this figure is that when the paper in an application
exceeds 500 pages, the practice in this Division is that arrangements
must be made through the office of the Deputy Judge President for a
special allocation of dates. Provided that cooperation from
both
sides is forthcoming, the date allocated for the hearing of a
specially allocated application is invariably arranged by the
DJP,
taking into account the availability of counsel
1
1
who represent the parties at that stage. It is widely known amongst
the legal profession that the DJP follows an open door policy
and
that the incumbent of the office of the DJP, at some personal cost to
himself and his staff, stands ready whenever possible
to facilitate
the arrangement of dates for the hearing of matters which cannot
justly be accommodated in the normal course. The
purpose of this
policy is to enhance the administration of justice by ensuring, as
far as possible, that a deserving party is not
kept out of court by
the procedural manoeuvres of the other side.
5. On the same day, 27 July 2012,
Tasima’s attorney, no doubt anticipating the need for a special
allocation because of the
weight of the paper in the case,
2
wrote to the DJP. The DJP responded in writing. I quote this letter
because of the emphasis placed on it in argument on behalf
of the
respondents:
Your letter dated 27 July 2012 refers.
On the premise that I accept that the
matter is urgent it will be extremely difficult to allocate a special
court to you for the
hearing of this matter on 7 or 8 August 2012.
I suggest that all parties concerned
arrange for a mutually convenient date and time to meet with me so
that the future of this
application can be considered and discussed.
Obviously I will try and be of
assistance as far as possible.
Please send a copy of this letter to
all other interested parties as well.
6. This letter and, indeed all other
communications from the DJP to Tasima’s attorney and from
Tasima’s attorney to
the DJP were promptly copied by Tasima’s
attorney to the State Attorney, more often than not by email.
7. the DJP’s letter dated 30
July 2012 did not lead to the suggested meeting. The parties,
represented as they were throughout
by senior and junior counsel met
at court on the date on which the application had been set down for
hearing in the urgent court,
7 August 2012. On the day of the
hearing, the parties agreed to postpone the hearing. They prepared a
draft order which they put
up to Teffo J, sitting in the urgent
court. The draft was, without amendment, made an order of court,
which I shall call the interim
order.
8. Tasima claims that the second
respondent (“the DG”) as well as the first respondent
have breached the terms of the
interim order. The applicant brought a
further urgent application which I shall call the contempt
application,
3
interlocutory to the main application. The outcome of the contempt
application has given rise to this appeal.
9. The interim order reads in relevant
part as follows:
1. Pending the finalisation of this
application or final settlement of the dispute between the parties,
the first respondent agrees
as follows:
1.1 It will pay the applicant for all
the services rendered or to be rendered and obligations incurred or
to be incurred by the
applicant in connection with the eNaTIS system,
including
1.1.1 The May and June Outstandings
(as defined in para 17 of the founding affidavit)
4
by no later than Friday,
10 August 2012;
1.1.2 Payment for all the services
rendered or obligations incurred in respect of July 2012 by no later
than Monday, 27 August 2012;
1.2 The first respondent will do all
things and take all steps as are necessary, in accordance with the
procedures previously applied
by the parties, to enable the applicant
to render the aforesaid services or incur the aforesaid obligations.
10. The interim order then proceeded
to provide, in imperative terms, for the delivery of further
affidavits and for the procedure
which the parties were to follow in
relation to the further conduct of the matter and for costs.
11. The first respondent failed, to
the great frustration of the applicant, to comply with any of its
obligations in terms of the
paragraphs of the interim order which I
have quoted. What the content and nature of those obligations are
must be determined in
accordance with the rule laid down in Firestone
South Africa (Pty) Ltd v Genticuro AG
1977 (4) SA 298
A at 304E-H.
12. The nub of Tasima’s case is
that it has to maintain the eNaTIS system and that without its
maintenance and upkeep functions,
which require it to incur travel
and security expenses, the system will collapse within hours. The
procedure applied by the parties
in the past was that before
rendering any service, Tasima would apply for an authorisation and
approval to render the service and
incur the expense. Routinely, and
apparently without exception, a representative of the DoT would sign
the necessary authorisations
and provide the required approval.
Tasima would then proceed to render the service and recover what was
due to it from the DoT.
13. Tasima contended in its founding
affidavit in the contempt application that the DoT was on two broad
grounds in contempt of
the interim order, firstly, because the DoT
had not paid what was owing for May, June and July 2012 as provided
for in paragraphs
1.1.1 and 1.1.2 of the interim order; and,
secondly, that the DoT had been ordered to provide Tasima with all
the authorisations
and approvals and had contemptuously failed to
provide those which are “necessary” in connection with
the system and
that each of the component sums in a schedule attached
to its founding affidavit in the contempt application, amounting in
ail
to R2 002 384,34, were necessary expenditures. In its notice of
motion, Tasima asked for relief declaring the DoT and the DG to
be in
contempt of paragraphs 1.1.2 and 1.2 of the interim order; ordering
the DoT to grant the authorisations and approvals set
out in a
schedule attached to the founding affidavit and committing the DG to
prison for contempt of court.
14. Although both the DoT and the DG
appeared at the hearing of the contempt application through counsel,
none of the respondents
delivered answering affidavits. This appears
to be a startling dereliction of duty on the part of the respondents
who are all constitutionally
obliged to justify their actions when
these are called into question before a court. Section 41 ()(h)(ii)
of the Constitution obliges
all spheres of government and all organs
of state within each sphere to co-operate with each other by
assisting and supporting
one another. The court and the first and
third respondents are all organs of state within their respective
spheres of government.
This means, in my view, that where an organ of
state can assist the court to achieve a just resolution of a case
brought before
it, the organ of state concerned is in general obliged
to place before the court relevant factual material within its
knowledge.
Whether in some cases the organ of state may be
constitutionally entitled to exercise the right to remain silent in
relation to
the facts which a litigant which is not an organ of state
enjoys need not be decided in this case. Be that as it may, the court
is obliged to decide the case on the facts put before it by Tasima. I
must add that we were told by senior counsel for the respondents
in
court when this appeal was argued that the respondents had made a
considered decision, on the advice of their counsel, not to
file
affidavits in opposition to Tasima’s factual allegations in the
contempt application. This decision was exceptionally
unwise.
15. When the contempt application came
before the court a quo, the court was informed from the bar that the
money payments which
Tasima contended were due pursuant to the
interim order had been paid. Tasima proceeded for the balance of the
relief sought.
16. Ledwaba J, before whom the
contempt application served, dismissed it on the grounds that the
order did not constitute a mandamus
upon the DoT, requiring it
without more to authorise that which was submitted to it for that
purpose by the appellant and that
mala fides had not been
demonstrated beyond a reasonable doubt. The learned judge made no
order as to costs, holding that both
sides had achieved some success.
17. Tasima applied to Ledwaba J for
leave to appeal against his order. The learned judge refused leave on
29 August 2012.
18. Tasima’s prayer for interim
relief embodied in the main application came before Mabuse J on 16
October 2012. The parties
were, as before and as they have been
throughout, represented by the same counsel as had previously
appeared before Teffo J. In
a judgment delivered the very next day,
17 October 2012, Mabuse J upheld the claim for interim relief and
granted certain interim
relief, expressed to operate pending the
finalisation of dispute resolution proceedings directed at
determining the dispute between
the parties. Although the relief
granted by Mabuse J was interlocutory and thus not generally
appealable, the present respondents
applied for leave to appeal
against the order of Mabuse J. Predictably, the application for leave
was refused. The respondents
have petitioned the SCA and the matter
is still pending in that court.
19. I have referred to the proceedings
before Mabuse J because of the correspondence that preceded the
application before Mabuse
J for leave to appeal. By emails dated 13
November 2012, the attorney within the office of the State Attorney,
Ms Constance Lithole,
who has dealt throughout with the litigation
between the parties, transmitted letters of the same date to Tasima’s
attorney.
The first was a letter addressed to Tasima’s
attorney. The second was a copy of a letter to Mabuse J about a date
for the
application for leave to appeal against the judgment of
Mabuse J. The fact that these letters were transmitted to Tasima’s
attorney by email and the date of their transmission, 13 November
2012, is relevant to what follows.
20. Tasima urgently petitioned the SCA
for leave to appeal against the order of Ledwaba J, leave in this
regard having been previously
refused by the learned judge. The SCA
fixed abbreviated times for filing further affidavits in relation to
the petition and then,
on 9 November 2012, granted leave to appeal to
the full bench of this Division. On 15 November 2012,Tasima delivered
a comprehensive
notice of appeal in which it disclosed to the court
that circumstances had changed in that most of the approvals and
authorisations
which it contended were due to it when the matter was
heard before the court a quo had by then been provided. Tasima
attached to
the notice of appeal a new schedule showing which
approvals and authorisations were still, on its contention,
outstanding. On Tasima’s
case those outstanding authorisations
related to a total amount of R355 308,47.
21. This Division has a substantial
backlog of full bench appeals. Some of the reasons for this
unsatisfactory state of affairs
are historical. Another,
self-evident, reason is that full benches comprise three judges and
pressure of other work precludes the
number of full bench courts that
can be empanelled. Anticipating this problem, Tasima’s attorney
wrote to the DJP on 15 November
2012, setting out the history of the
matter and the grounds on which it contended the appeal was urgent
and warranted an expedited
date for its hearing. Attached to the
letter to the DJP were copies of all conceivable documents relevant
to the decision he was
being asked to make. The letter of 15 November
2012 and its annexures were transmitted to the Ms Lithole on the same
date. By letter
dated 19 November 2012, the DJP wrote to Tasima’s
attorney asking him to obtain the comments of the State Attorney. The
DJP
said in the letter that he could only deal with the request after
he received the comments of the State Attorney and that he would
have
to take the matter up with the Judge President of this Division. On
19 November 2012 Tasima’s attorney transmitted to
Ms Lithole by
email the letter from the DJP dated 19 November 2012 as well as his
letter dated 15 November 2012 which, as I have
said, had already been
transmitted to Ms Lithole on that same date.
22. There was no response from Ms
Lithole or anyone else to the invitation of the DJP for comments on
the request for an expedited
date. The request for an expedited date
came before the JP, who directed that the appeal against the order of
the court a quo per
Ledwaba J be heard on “an early date”.
On 12 December 2012 the DJP wrote a letter to this effect to Tasima’s
attorney and called for the record on appeal. A copy of this letter
was transmitted by email to Ms Lithole on 13 December 2012.
23. On the same date, 13 December
2012, Tasima’s attorney transmitted by email to Ms Lithole a
letter of the same date, inter
alia recording the decision to have
the appeal heard on an early date and asking on what dates in January
2012 the respondents’
counsel would be available. There was no
response to this letter from Ms Lithole or anybody else.
24. Tasima had the record on appeal
prepared, lodged iton 14 December 2012 and, in accordance with the
practice of this Division,
when it lodged the record applied for a
date for the hearing of the appeal. It was allocated the date of 16
April 2014. On 19 December
2012, Tasima’s attorney wrote to the
DJP, inter alia recording that the respondents’ attorney had
not responded to
his letter of 13 December 2012. On 21 December 2012
the heads of argument of Tasima’s counsel were served by hand
on the
State Attorney and filed in court. By letter dated 21 December
2012, the DJP wrote to Tasima’s attorney, stating that after
discussion with the JP the appeal would be heard on 4 February 2013.
25. On 8 January 2012, Tasima’s
attorney served by hand on the State Attorney a notice of removal of
the appeal from the roll
of 16 April 2014 and a notice of set down of
the appeal for4 February 2013. On 14 January 2012, the DJP wrote to
Tasima’s
attorney, calling for heads of argument by 25 February
2012.
26. Two judges of this Division were
diverted from their allocated work to hear the appeal. There was
difficulty in allocating
a third judge for this purpose. The DJP
ultimately decided that he would therefore have to sit.
27. Finally, by letter dated 25
January 2012 to the DJP, the State Attorney, in the person of Ms
Lithole, responded to the situation
which had been triggered by the
urgent grant of leave to appeal to the full bench of this Division by
the order of the SCA dated
9 November 2012.
28. The letter of 25 January 2013
informs the DJP that counsel who had previously represented the
respondents would not be able
to prepare for the appeal because of
pressure of other work and that she had discounted the possibility
that alternate counsel
could be briefed because of the expense
involved and the amount of work required. The thrust of the letter is
that this situation
was precipitated by the notice of removal of the
appeal from the roll for April 2014 and the enrollment of the appeal
for hearing
on 4 February 2013, as if none of the correspondence
which I have mentioned had existed.
29. Tasima’s attorney responded
to this letter in a letter to the DJP dated 29 January 2013, opposing
the suggestion that
the appeal should be postponed and referring to
the previous correspondence. The DJP stated in a letter dated 1
February 2013 that
the appeal would be heard on 4 February 2013 at
12h00 in court 6E.
30. A few minutes before the appeal
was called at the time stated by the DJP in his letter, each of the
members of the full bench
was presented with a formal application on
behalf of the respondents for the postponement of the appeal and an
order that Tasima
pay the costs of the postponement. When the appeal
itself was called, the representatives of Tasima were in attendance,
as was
Ms Lithole. Counsel for the respondents were not present. Ms
Lithole was directed by the bench to ensure that her counsel were
present in court within ten minutes. When the court reconvened both
senior and junior counsel for the respondents, those who had
appeared
for the respondents throughout, were present. It then emerged that
the application for a postponement of the appeal had
only that
morning come to the knowledge of Tasima’s representatives and
the appeal and the application for postponement were
adjourned to 8
February 2013 with directions as to the filing of further affidavits
in the postponement application.
31. Ms Lithole deposed to the founding
and replying affidavits in the application for postponement. The case
made by her in the
founding affidavit is that Tasima’s attorney
unaccountably engaged the office of the DJP to arrange an expedited
date for
the appeal to her complete exclusion and that the DJP
equally unaccountably made arrangements in this regard with Tasima’s
attorney to the exclusion of Ms Lithole. She relied in her founding
affidavit heavily on the letter of the DJP dated 27 July 2013,
which
I have quoted, to support an argument that the prosecution of the
various aspects of the case should have proceeded in an
atmosphere of
collegial consultation between the representatives of the litigants.
She alleged that it is ... more disturbing than
disquieting that
[Tasima’s] attorneys have been communicating with the office of
the [DJP] in the absence of the respondents’
attorneys.
She insinuated that Tasima’s
attorney had misled the DJP into believing that arrangements for the
expedited hearing of the
appeal had taken place with the consent and
cooperation of the respondents, which, she said, had not been the
case. She characterised
the conduct of Tasima (by implication acting
through its attorney and perhaps its counsel as well) as
“indefensible”.
She suggested that Tasima’s counsel
should have arranged a date with the respondent’s counsel. She
stated that “as
at the period of 21st December 2012, she was
“preparing to go on leave” and suggested that during the
period of the
festive season other members of the staff of the State
Attorney were “preparing to go on leave”, as if this
period
before they actually went on leave was a time during which
outsiders ought to know that no work, other than that relating to
certain
unnamed “urgent matters” was done in the office
of the State Attorney. She said that she had only been able to
consult
with junior counsel on 16 January 2013 and with senior and
junior counsel together on 23 January 2013. And all this, I
emphasise,
is said to have happened because of the unilateral actions
of Tasima’s attorney culminating in the notices of removal and
set down of the appeal delivered on 9 January 2013. There was no
explanation why the postponement application had been served so
late
in the day.
32. In Tasima’s answering
affidavit, its attorney demonstrated that the correspondence to which
I have referred had indeed
been exchanged. Ms Lithole then responded
in a replying affidavit, the main thrust of which can only fairly be
described as disgraceful.
She persisted in the baseless assertion
that Tasima’s attorney had “unilaterally", ie to the
exclusion of any
participation on the part of the respondents and
particularly herseif, procured the expedited hearing of the appeal.
33. In a ludicrous attempt to justify
her conduct, Ms Lithole discloses in her replying affidavit, to which
she deposed on 7 February
2013, that the office of the State Attorney
in Pretoria is, to use her own word, “dysfunctional”. I
again quote directly
from her affidavit:
Due to challenges in the state
attorney’s office, I have time and again delayed in reading my
emails as most of the communication
from [Tasima] was by way of
email.
And, she says:
I do not know why [Tasima] tarred
respondents’ counsel with the same brush as my dysfunctional
office. Clearly I was failing
to respond to the letters most of which
were being communicated by email. As has become clear, I rarely look
at my emails. On this
basis, I am confident that had all this
communication been directed by way of letters and not emails to my
office, my attention
would have been drawn to them and I would
certainly have responded accordingly.
She suggests that this shocking state
of affairs arose because she was under pressure from running “other
weighty applications”
and because the office of the State
Attorney is inadequately staffed. She offers a cursory apology. She
asserts that the respondents’
problem of lack of preparation
arose because Tasima’s counsel had not taken upon themselves
the burden of arranging a date
for the appeal directly with the
respondents’ counsel.
34.The replying affidavit deposed to
by Ms Lithole concludes as follows:
On this basis alone [ie the failure to
arrange a date for the appeal by discussion, particularly between
counsel, and the “unilateral”
approaches of Tasima’s
attorney to the DJP] the appellant [ie Tasima] is responsible for
this unfortunate impasse. An appropriate
costs order should be
levelled against it, not excluding costs de bonis propriis. Clearly,
the respondents’ request for removal/postponement
has been
occasioned by the unilateral conduct of the appellant...
35. The explanation, if it may so be
described, that Ms Lithole does not read the emails addressed to her
by other attorneys relative
to the matters which she is handling, is
most disturbing. It appears to us, moreover, to constitute
unprofessional conduct on her
part. In light of the fact that Ms
Lithole actually resorted to email communication in an aspect of this
very litigation (her communisations
regarding a date for the
application for leave to appeal against the order of Mabuse J to
which I have made reference), her whole
explanation appears to be
questionable. She does not suggest that Tasima’s attorney ought
to have known that the office of
the State Attorney was
“dysfunctional” or that she told Tasima’s attorney
that such was her professional predicament,
she was unable to read
communications by email. The implication of her “explanation”
is that she reads ail hardcopy
letters addressed for her attention.
Why she should have capacity to read hardcopy letters when she does
not have capacity to read
emails is not explained. She does not
suggest that she told Tasima’s attorney that nobody in the
office of the State Attorney
would attend to what Tasima manifestly
regarded as an urgent matter while she was preparing to go on leave,
whatever that may mean,
and was actually away on leave. The SCA had
treated Tasima’s petition as urgent. The SCA had granted leave
to appeal pursuant
to this urgent petition. Ms Lithole simply must
have known that Tasima would seek to get its appeal heard as soon as
possible.
It may be that Ms Lithole’s explanation for her
conduct is in whole or in part untruthful. I cannot make a finding in
this
regard on the papers but the possibility of untruthfulness on
her part should be born in mind by any institution taking action
pursuant to this judgment.
36. I deprecate strongly the conduct
of Ms Lithole as disclosed in her own affidavits before us and the
correspondence admittedly
sent and received. Her conduct seriously
prejudices the administration of justice. Even more importantly, the
dysfunctionality
to which she refers demonstrates that the office of
the State Attorney, Pretoria, an important organ of state, is
presently unable
to comply with its constitutional and statutory
obligations.
37. To take but one, very important,
function of the State Attorney: under rule 4(9), service of court
process on the State and
on ministers and deputy ministers in the
national government as representative of the departments which they
head may legitimately
take place by service on the State Attorney. If
that office is dysfunctional, a court cannot be confident that the
process in question
has come to the attention of responsible officers
within the department concerned. Indeed, the experience of each of
the members
of this full bench has been that frequently and most
disturbingly, civil litigation against the State in this division is
allowed
to go by default.
38. Under s 1(1) of the State Attorney
Act, 56 of 1957, the several offices of the State Attorney are under
the control of the Minister
of Justice. This court too is an organ of
state and subject to the duties under s 41 of the Constitution. With
this in mind, it
is appropriate that, as foreshadowed in argument,
both the Minister of Justice and the parliamentary portfolio
committee for justice
be provided with copies of this judgment. In my
view, too, the Law Society of the Northern Provinces should be sent a
copy of this
judgment with the request that the Law Society
investigate the conduct of Ms Lithole and the office of the State
Attorney, Pretoria,
as disclosed in this judgment and the papers in
the postponement application. I emphasise that while I consider the
conduct of
Ms Lithole, as disclosed in her own affidavits, to be
worthy of censure, the primary purpose in publicising this judgment
in the
way described is to prompt those in a position to do so to
ensure that the office of the State Attorney, Pretoria, fulfils its
important constitutional and statutory obligations.
39. The court cannot function as a
commission of enquiry. Its duty and function is to determine the
specific dispute before it on
the evidence presented to it by the
parties and on facts of which the court may take judicial notice. I
therefore cannot and do
not presume to suggest how the shocking state
of affairs I have described should be put right. The ultimate
responsibility in law
to put matters right and ensure that the office
of the State Attorney, Pretoria, complies with its constitutional and
statutory
obligations rests on the Minister of Justice.
40. Counsel for the respondents
initially tried to defend the conduct of Ms Lithole. But towards the
end of their argument, counsel
conceded that the conduct of Ms
Lithole was not defensible and withdrew and apologised for the
allegations of impropriety levelled
in Ms Lithole’s affidavits
against Tasima and its representatives. Counsel disclosed that they
had been responsible for the
preparation and content of Ms Lithole’s
affidavits. Counsel also stated during argument that the respondents
would not persist
in the application for postponement of the appeal.
The appeal then proceeded.
41. From counsels’ concession it
follows that I need not deal in any detail with the respondents’
arguments that the
appeal should be postponed. Suffice it to say, all
their arguments are utterly without merit. The conduct of Ms Lithole,
established
from her own affidavits, entirely destroys any basis for
good cause, without which no application for postponement can
succeed.
I hold unequivocally that there is no merit whatsoever in
the assertion, persisted in by counsel for the respondents until
almost
the very end of their oral submissions, of impropriety on the
part of Tasima’s representatives.
42. Furthermore, in my view, it is
inappropriate for counsel to engage in the formal administrative
process of arranging dates for
the hearing of cases and other
procedural matters relative to an expedited hearing, except to inform
their respective instructing
attorneys of dates suitable to them for
the hearing. Of course counsel may, if they choose or are asked to do
so by the DJP, discuss
suitable dates with their opponents and attend
meetings with the DJP to facilitate the arrangements. But the route
of formal communication
is always open to a litigant at his election
and should always be conducted through his attorney rather than his
counsel. It is
no part of the function of counsel to participate in
such formal communication and it is never improper for a party to
decide that
the route of formal, rather than informal, communication
is preferable.
43. We were asked by Tasima’s
counsel in argument to make special costs orders against Ms Lithole
and the State Attorney.
I shall accede to that request. For the
reasons set out, the conduct in question demonstrates a high degree
of reprehensibility.
In addition, but which was not dealt with in
argument, I believe that in the exercise of our inherent discretion
orders should
be made relative to the fees of counsel for the
respondent. To eliminate any chance of unfairness, the order in
relation to counsels’
fees should be provisional with the
right on the part of those affected to
make representations in writing as to why such orders should be
withdrawn or varied.
44. I am now in a position to turn to
a consideration of the appeal before us.
45. Our task on appeal has been made
more difficult by the failure of the legal representatives of the
respondents to provide us
with written argument. I reject the
suggestion that pressure of work justified this failure. In this
case, the record on appeal
is short (only 171 pages) and the issues
are limited. Any competent middle junior could do justice to this
appeal. Counsel who
appeared before us represented the respondents in
the court a quo and presented written argument to that court.
46. The prayer for orders compelling
the first and second respondents to grant the authorisations and
approvals sought by Tasima
occasions no difficulty. Whatever the
proper and comprehensive interpretation of paragraph 1.2 of the
interim order may be, a question
which need not be decided in this
appeal, the order imposes a contractual obligation on the DoT to
grant those authorisations and
approvals which are necessary for the
performance by Tasima of its obligations under the eNaTiS contract. I
emphasise that it is
not necessary to
decide, and I do not decide, whether
paragraph 1.2 of the interim order imposes a contractual obligation
on the DoT to grant authorisations
and approvals and make payments
other than those which are necessary for the purpose mentioned, eg
those which although not necessary,
are desirable. The case made by
Tasima in its founding affidavit was that all the authorisations and
approvals which it sought
were necessary for the purpose mentioned.
Because the respondents delivered no answering affidavits, the case
put up by Tasima
stands uncontroverted. At a contractual level,
therefore, Tasima has proved its entitlement in principle to an order
in terms of
prayer 3 of the notice of motion, in the more restricted
form in which it appears in the notice of appeal because of the
approvals
granted by the DoT in the period between the hearing of the
contempt application before Ledwaba J and the delivery of the notice
of appeal. Indeed, counsel for the respondent conceded that to that
extent, the appeal should succeed.
47. What remains to be dealt with are
the issues raised by the prayers for a declaration that the conduct
of the DoT in failing
to grant the approvals and authorisations
sought constitute contempt and for the imprisonment of the DG.
48. The allegation that the DoT
contracted with Tasima is not strictly correct. Although the contract
is not part of the record
before this court, we called for the file
of the main application, to which the proceedings giving rise to this
appeal are interlocutory.
The contract was concluded between Tasima,
then called Dataforce Trading 79 (Pty) Limited, and the Government of
the Republic of
South Africa (“the Government”), acting
through its National Department of Transport. It is trite that a
litigant brings
a national or provincial department before court by
citing its political head in a representative capacity because that
is what
s 2
of the
State Liability Act, 20 of 1957
, provides. Jayiya
v Member of the Executive Council for Welfare, Eastern Cape, and
Another
2004 2 SA 602
SCA para 5.
49. In the pre-constitutional era, the
designation of the defendant in proceedings brought against the State
was a mere matter of
nomenclature. Sibeko and Another v Minister of
Police and Others
1985 1 SA 151
W 161H. Today each department of
state or administration within the national or provincial sphere of
government is an organ of
state. Section 239 of the Constitution;
Airconditioning Design & Development (Pty) Ltd v Minister of
Public Works, Gauteng
Province
[2005] ZAGPHC 12
;
2005 4 SA 103
T para 12. However,
nothing in the Constitution deals with the legal personality of the
State and its several organs. In the main
application, the parties
treated the DoT, rather than the Government, as the contracting party
and no point in this regard was
taken by the respondents.
50. The position of the Government of
the Republic of South Africa, as a litigant, is less clear. It is
dealt with neither in the
State Liability Act nor the
Constitution.
It seems to me, on the material before us at present, that the
intention of the parties was that the appellant was
contracting with
the Government and that the reference to the DoT was merely to
identify the officials within government who would
be administering
the contract on behalf of the Government. In the private sector, a
similar result might be achieved by referring
to eg, “XYZ
Company Limited, acting through its legal department”. There is
thus insufficient material before us on
the strength of which to
conclude that the DoT is a juristic person distinct from the
Government.
51. The basic principles applicable to
construing documents also apply to the construction of a court's
judgment or order: the court's
intention is to be ascertained
primarily from the language of the judgment or order as construed
according to the usual, well-known
rules. Thus, as in the case of a
document, the judgment or order and the court's reasons for giving it
must be read as a whole
in order to ascertain its intention. If, on
such a reading, the meaning of the judgment or order is clear and
unambiguous, no extrinsic
fact or evidence is admissible to
contradict, vary, qualify, or supplement it. In such a case not even
the court that gave the
judgment or order can be asked to state what
is subjective intention was in giving it. But if any uncertainty in
meaning does emerge,
the extrinsic circumstances surrounding or
leading up to the court’s granting the judgment or order may be
investigated and
regarded in order to clarify it; for example, if the
meaning of a judgment or order granted on an appeal is uncertain, the
judgment
or order of the court a quo and its reasons therefor, can be
used to elucidate it. If, despite that, the uncertainty still
persists,
other relevant extrinsic facts or evidence are admissible
to resolve it. Firestone South Africa Ltd v Genticuro AG
1977 4 SA
2
98 Ad 304D-H.
In the present case, no doubt because the interim
order was sought by consent, Teffo J gave no reasons for her
decision.
52. There is a clear distinction, in
my view, between the character of the provisions I have quoted and
the remainder of the interim
order. The quoted provisions record the
terms of an agreement reached between Tasima and the DoT. The quoted
provisions do not
reflect any direction by the court that any of the
cited respondents is to do or refrain from doing anything. The
provisions of
the agreement concluded between Tasima and the DoT are
merely noted.
53 In contrast with the provisions in
the interim order dealing with the agreement between Tasima and the
DoT, the remainder of
the order directs the respondents (“The
respondents will deliver...”) and Tasima (“The applicant
will deliver...")
to deliver respectively answering and replying
affidavits, if any, by fixed dates and disposes of the question of
costs. (“The
costs ... are to be costs in the cause.”)
54. In my view, therefore, the terms
of the interim order upon which Tasima relies are clear and
unambiguous in the sense that the
quoted provisions do no more than
record the terms of an agreement between Tasima and the DoT and do
not constitute a direction
by the court that the DoT must implement
that agreement on pain of contempt.
55.If I am wrong in this conclusion
and the interim order in fact constitutes a direction by the court
that the DoT must do what
is contained in paragraph 3.2, the
following. Tasima’s complaint is broadly that the DoT failed to
execute certain authorisations.
Some of those authorisations sought
are for expenses already incurred and some for expenses which Tasima
says should be incurred
to enable the eNaTIS system to keep
functioning. Tasima’s case is that it is, or would be, at
financial risk arising from
the incurring of such liabilities without
an equivalent authorisation from the DoT.
56. l have already mentioned that the
respondent in contempt proceedings is entitled to protections,
appropriate to motion proceedings,
analogous to those afforded an
accused person. Fakie NO para 42(b). During oral argument, Tasima saw
its way clear, when requested
to do so by a member of the court
during oral argument, not to persist in its prayer for the
imprisonment of the DG for contempt.
But Tasima, as it was entitled
to do, persisted in the prayer for a declaration that the failure to
comply with paragraph 1.2 of
the interim order constituted contempt.
An applicant for a declarator in relation to conduct in contempt of a
court order need
only prove its case upon a balance of probabilities.
But despite this, in our view, an application for such a declarator
is akin
to criminal proceedings in the sense that criminal
consequences may follow if the conduct declared contemptuous or
conduct found
to be equivalent to that declared contemptuous takes
place in the future.
57. Where criminal responsibility is
created by the service upon a person of a notice requiring him or her
to perform, or refrain
from performing, certain acts, the notice in
this regard must surely be specific. To take a hypothetical case: an
inspector appointed
under the
Occupational Health and Safety Act, 85
of 1993
may by notice under
s 30(1
)(b) prohibit a person from using
plant or machinery in a certain manner or in certain circumstances. I
think that it is self-evident
that no criminal liability will arise
if the notice merely prohibits the use of the machinery “contrary
to the provisions
of the Act [or the section]” and does not
specify the manner or the circumstances in which the inspector claims
the plant
or machinery is or will be used and wishes to proscribe.
58. By parity of reasoning, I do not
think that an order in the general terms of paragraph 1.2 is specific
enough to bring to the
mind of the vitally affected reader the
content of his or her obligations toward the court which the order
requires him or her
to perform. In my view, before a court considers
the drastic step of committal for contempt, the content of the
obligation to the
court should have been specified in a court order.
Paragraph 1.2 falls short in this regard. It does not appear from the
interim
order that the parties sought to impose upon the DoT
obligations outside or more burdensome than those which flow from the
agreement
between the parties. The interim order requires the DoT to
do no more than comply with those obligations. Although a declarator
in the terms sought would not lead directly to loss of liberty, it is
likely in the present context to be of relevance in future
enquiries
if in such proceedings Tasima claims that a failure to pay or to
authorise is contemptuous of paragraph 1.2 of the interim
order.
59. My concern is exacerbated by the
alarming ineptitude with which the case for the respondents has up
till now been conducted.
I wish particularly to refer to the decision
not to place the respondents’ version by affidavit before the
court in the contempt
application. This indefensible and
incomprehensible decision was taken, we were told in argument, by the
respondents’ counsel.
Normally in civil proceedings, the
ineptitude of counsel would not be of any relevance. But because the
declarator sought could
have criminal law consequences, I think the
situation is different. Whether or not to issue a declarator is
always in the discretion
of the court. It weighs with us that the
respondents may be able to place facts before the court to
demonstrate that a particular
failure or refusal in the future to
authorise or approve a payment or to make a payment may be
justifiable.
60. The question whether making an
agreement an order of court is equivalent to a judgment has arisen
particularly but not exclusively
in the context of the settlement of
matrimonial disputes. In perhaps the majority of matrimonial cases in
this Division, a decree
of divorce is granted with the incorporation
into the order of a settlement agreement between the parties or with
a further order
that the settlement agreement is binding on the
parties. This approach has caused controversy.
61. In Mansell v Mansell
1953 3 SA 716
N at 721B-F, the following was said:
For many years this Court has set its
face against the making of agreements orders of Court merely on
consent. We have frequently
pointed out that the Court is not a
registry of obligations. Where persons enter into an agreement, the
obligee's remedy is to
sue on it, obtain judgment and execute. If the
agreement is made an order of Court, the obligee’s remedy is to
execute merely.
The only merit in making such an agreement an order
of Court is to cut out the necessity for instituting action and to
enable the
obligee to proceed direct to execution. When, therefore,
the Court is asked to make an agreement an order of Court it must, in
my opinion, look at the agreement and ask itself the question:
'Is this the sort of agreement upon
which the obligee (normally the plaintiff) can proceed direct to
execution?' If it is, it may
wetl be proper for the Court to make it
an order. If it is not, the Court would be stultifying itself in
doing so. It is surely
an elementary principle that every Court
should refrain from making orders which cannot be enforced. If the
plaintiff asks the
Court for an order which cannot be enforced, that
is a very good reason for refusing to grant his prayer. This
principle appears
to me to be so obvious that it is unnecessary to
cite authority for it or to give examples of its operation.
And at 721H:
The enforcement of the agreement,
regarded as an order of Court, teems with difficulties, and I am
satisfied that if it were made
an order of Court no practical or
legitimate advantage
would be conferred upon either party.
It is no part of the duty of this Court, on the invitation of
litigants, to invest their agreement
with some sort of vague aura or
glamour which has no practical efficacy.
62. These dicta raised, but did not
answer, the question what the position is when, through less than
careful formulation or otherwise,
an order of court records an
agreement but does not make clear whether the agreement recorded is
of the species that entitles the
“obligee to proceed direct to
execution”. The position in regard to the payment of
maintenance and of custody and access
(now primary residence and
contact) in relation to minor children is relatively straightforward.
But where performance by the obligee
is reciprocal to obligations of
the obligor, the position is less clear.
63. In Johannesburg Taxi Association v
Bara-City Taxi Association and Others
1989 4 SA 808
W an undertaking
by the respondents 'not to assault, protest or unlawfully interfere
with the applicant’s members or prevent
the applicant and its
members from using the taxi ranks listed in annexure A to the notice
of motion' and 'not to unlawfully interfere
or hinder the members of
the applicant in the conduct of their legitimate taxi business' was
incorporated, by consent, in the order
of court.
64. When one of the respondents
allegedly continued with behaviour which was contrary to the
undertaking, the applicant instituted
civil contempt proceedings
against it. The question before the court was whether or not
non-compliance with the court order could
be permissibly visited with
committal for contempt of court. The applicant's counsel relied on
Halsbury Laws of England 4 ed vol
9 para 75 to the effect that:
An undertaking given to the court by a
person or corporation in pending proceedings, on the faith of which
the court sanctions a
particular course of action or inaction, has
the same force as an injunction made by the court and a breach of the
undertaking
is misconduct amounting to contempt.
65. The court, however, refused to
follow the English authorities and held that the ’undertaking
was only effective inter
partes and did not constitute an
understanding 'to the court' having the effect of a court order. At
811E-F:
As a matter of interpretation the
present order remains an order in terms of what the parties
contracted, without an element of
a court requiring obedience because
of the administration of justice's own interest in compliance with
the order.
And at 81 OH:
When the parties reached agreement,
the Court was informed and an order was issued in the terms as
requested by the parties. I still
see no component of the Court
regarding its order as a matter of the Court as an instance of legal
authority requiring the respondents
to desist. It merely orders a
contract between the parties to have binding effect. It is no
different from 'an order in terms of
a contract to pay.
66. In Brandtner v Brandtner
1999 1 SA
866
W, the court declined to enforce as an order of court a
settlement agreement which had merely been declared binding. The
clear
implication from what appears in the judgment at 868A, however,
is that if the order of court had incorporated the deed of settlement
within its .decree of divorce, the parties could competently have
enforced the provisions of the agreement as orders of court.
67. Tshetlo v Tshetlo
[2000] 4 All SA
375
W went the other way. In that case there was a settlement
agreement in terms of which one of the parties undertook to remain
liable
for the bond repayments over a property. The court held,
without reference to Johannesburg Taxi Association, supra, that
because
the parties had sought and been granted the incorporation of
the agreement in the court order, the provision at issue in the
agreement
constituted an order of court.
68. In Lebeloane v Lebeloane
2001 1 SA
1079
W, the court declined to follow Brandtner, supra, on the ground
that the approach was overly technical. Lebeloane was a case of
failure to pay maintenance and reliance was placed on
s 7(1)
of the
Divorce Act, 70 of 1979
, which empowered the court in terms to make
orders for the division of assets and the payment of maintenance. At
paragraph 25 of
the judgment, the following was said:
What I have said does not mean that a
Court will always, when asked to do so, make a settlement agreement,
whether in a divorce
case or in another matter, an order of the
Court. Agreements sometimes contain provisions which it is not
appropriate to incorporate
in an order of the Court.
69. In Thutha v Thutha
2008 3 SA 494
TkH, the court was faced by two consolidated applications to enforce,
as court orders, the provisions in a matrimonial settlement
agreement
which settled family law questions such as maintenance and certain
commercial disputes between the parties. In paragraph
53[2] of the
judgment, the court noted the principle that the wording of judgments
and orders should be clear and unambiguous and
collected the
authorities. I have drawn considerably on the researches of the court
in Thutha in the preparation of this judgment.
In the end, the result
of that case went off on the facts.
70. In JW v HW2W
6 SA 237
GSJ, the
court followed the practice in the South Gauteng High Court under
which divorce settlements declared binding by the court
which granted
the divorce were in effect incorporated in the divorce orders and as
such capable of sustaining execution.
71. In my view, the proper approach is
that the provisions of each court order which makes reference to an
agreement between the
parties must be examined in the light of the
principle in Firestone South Africa Ltd v Genticuro AG, supra to
determine whether
the order, properly interpreted, imposes
obligations toward the court and, if so, what the content of those
obligations are. In
this examination, it must be born in mind that in
principle that the ultimate sanction for failure to comply with an
order of court
is deprivation of liberty. Regardless whether the
applicant in contempt proceedings seeks an order for the deprivation
of the liberty
of the respondent or merely a declarator that the
conduct of the respondent is contemptuous of an order of court, it is
appropriate
to examine the order of court relied upon to establish
the contempt in much the same way as one would examine analogous
documents
(eg statutory measures and notices) in the context of a
criminal prosecution.
72. On this approach too, I come to
the conclusion that the interim order does not identify the
obligations of the DoT with the
specificity required of a court
order. Had the court which made the interim order intended that the
interim order visit breaches
of the agreement between the parties
with contempt consequences, the order would have specifically and
clearly spelt out the obligations
of the DoT and any reciprocal
obligations of Tasima.
73. The appeal accordingly succeeds
to the extent described. I turn to the question of the fees of the
respondents’ counsel.
They were party to the reprehensible and
misguided decisions to attack the probity of Tasima’s
representatives and to try
to justify the conduct of Ms Lithole in
ignoring, when she chose to do so, those communications from Tasima’s
attorney made
by email. The respondents, I regret to say, contributed
nothing of any substance to the adjudication of this appeal. They
produced
no written argument. They only appeared before us because we
demanded that they do so. The application for postponement lengthened
the proceedings before us from one to two days. We have an inherent
power to regulate the fees claimed by officers of the court
including
advocates. In the exercise of this power, I intend to direct that
counsel for the respondents may recover no fees from
their attorneys
or their clients in relation to this appeal and the application for
postponement, whether for consultations, preparation
of documents or
attendance at court.
74. I make the following order:
1 The appeal succeeds in part. The
order of the court a quo is
set aside and replaced with the
following:
1.1. The first and second respondents
are ordered to grant the authorisations and approvals contained in
the schedule attached to
the notice of appeal and marked “Y”
(at pp167-168 of the record on appeal);
1.2. No order is made on prayers 2 and
4 of the notice of motion;
1.3. The respondents, jointly and
severally, are to pay the costs of the application, including the
costs of both senior and junior
counsel.
2. It is noted that the application
for a postponement of the appeal was withdrawn by counsel during the
hearing of that application;
3. The respondents in the appeal are
ordered, jointly and severally, to pay the costs of the appeal,
including the costs of both
senior and junior counsel.
4. The respondents in the appeal, Ms
Constance Lithole and the State Attorney, Pretoria are ordered,
jointly and severally to pay
the costs of the application for a
postponement of the appeal, including the costs of both senior and
junior counsel on the scale
as between attorney and own client and
shall include all the costs of and relating to the hearing on 4
February 2013. The liability
of Ms Lithole for these costs will be de
bonis propriis.
5. For the guidance of the taxing
master, it is recorded that both the appeal and the application for
postponement of the appeal
were heard on 8 February 2013 and that one
half of the time spent in court on that date related to the
application for postponement
of the appeal.
6
6.1 Counsel for the respondents on
appeal may not recover either from the respondents or from the State
Attorney or from any other
person or organ of state any fees
whatsoever, whether for consulting, advising, drawing or settling
documents, appearing in court
or otherwise, in relation to the appeal
or the application for postponement of the appeal.
6.2 The order made in this paragraph
will be provisional. The advocates in question may, within ten days
of the date of this order,
deliver to the office of the Deputy Judge
President written submissions, showing why the order made in this
paragraph should be
set aside or varied.
6.3. If no such written submissions
are so delivered, the order in this paragraph will cease to be
provisional and will become final.
7. The Registrar is directed to send
copies of this judgment to the Minister of Justice and Constitutional
Development and the Parliamentary
Portfolio Committee on Justice and
Constitutional Development, with the request that such action be
taken in the light of this
judgment as may be considered appropriate.
8. The registrar is directed to send a
copy of this judgment to the Law Society of the Northern Provinces
with the request that
the Law Society investigate the conduct of Ms
Constance Lithole as appears from this judgment with a view to taking
such action
as the Law Society may consider appropriate.
NB Tuchten
Judge of the High Court 25 February
2013
I agree.
WJ van der Merwe
Judge of the High Court
25 February 2013
I agree.
N Kollapen
Judge of the High Court
25 February 2013
Heard on: 8 February 2013
For applicant: Adv A E Franklin SC and
A Rowan
Instructed by: Webber Wentzel
attorneys
For respondents: Adv Lebala SC and Adv
Mere
Instructed by: State Attorney Pretoria
1
1
By
counsel i mean, in (his context, the legal representatives of the
parties who, it i anticipated, will actually argue the matter
in due
course
2
The
letter of 27 July 2012 is not before us but its contents can be
inferred from the reply to that letter written by the DJP.
3
Although Tasima sought relief in the contempt
application which went beyond relief specifically in relation to
contempt.
4
The
reference must be to the founding affidavit in the main application.