About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2013
>>
[2013] ZAGPPHC 240
|
|
Tasima (Pty) Ltd v Department of Transport and Others (44095/2012) [2013] ZAGPPHC 240 (12 August 2013)
NOT
REPORTABLE
IN
THE NORTH GAUTENG HIGH COURT, PRETORIA
(REPUBLIC
OF SOUTH AFRICA)
CASE
NO: 44095/2012
DATE:
12/08/2013
TASIMA
(PTY)
LIMITED
........................................................................................
Applicant
and
THE
DEPARTMENT OF TRANSPORT First Respondent
THE
DIRECTOR GENERAL: DEPARTMENT
OF
TRANSPORT
..................................................................................................
Second
Respondent
THE
MINISTER OF
TRANSPORT
….................................................................
Third
Respondent
WERNER
EDUARD
KOEKEMOER
..................................................................
Fourth
Respondent
And
ROAD
TRAFFIC MANAGEMENT CORPORATION
(APPLICATION
TO
INTERVENE)
….................................................................F
ifth
Respondent
JUDGMENT ON APPLICATION FOR LEAVE TO
APPEAL
EBERSOHN, AJ
1.
In this application for leave to appeal the parties will be referred
to as in convention.
2.
The applicant brought an urgent application against the first,
second, third and fourth respondents to compel them to comply
with
court orders made in the past by Mabuse J and Strijdom AJ, more in
particular to make urgent payment of long outstanding money
(R118 502
705,13) to stave off a possible liquidation of the applicant Tasima;
and a crash of the TIS system, and to grant certain
authorisations
and approvals to enable Tasima to enter into agreements with certain
key parties and to convene a meeting with all
the eNatis governance
structures contemplated in Schedule 11 of the agreement (par.4 of the
Strijdom order).
3.
The fifth respondent wanted to intervene but as it was part of the
first respondent leave was not granted.
4.
The court fully dealt with all the issues in the judgment.
5.
The fifth respondent, being under the impression that leave was
granted to intervene, filed a notice of application for leave
to
appeal, although it had nothing to do with the breaches of the Mabuse
and Strijdom orders. The application was abandoned by
Adv. Roux SC
who was brought into the case overnight when he realised that leave
to intervene was not granted.
6.
The first, second and third respondents sought leave to appeal
against all the orders made by the court except orders 7.1 and
7.2.
Mr Roux SC who argued the application on their behalf restricted his
argument, in his usual candid manner, to five main points.
7.
He argued firstly that the first respondent was within its rights to
withhold payment to Tasima. The contentions of the respondents
were
fully dealt with in the main judgment and summarised in [28] and the
finding that there is no actual "dispute" between
the
parties regarding payment (Defante and Another v Delta Electrical
Industries Ltd and another
1992 (2) SA 221(C)
) Mr Roux argued that
the first respondent was entitled to retain amounts regarding PC
67,
PC 68
and PC 69 but conceded that with regard to the amounts
outstanding on the other PC's the respondents were in the wrong. He
also
had problems to explain the excessive delay on the part of the
respondents and their failure to come to a point. Adv. Roux SC is
not
to be blamed for that as there appears to have been a deliberate
delay on the part of the respondents.
8.
He argued, secondly, that the court erred in ordering the respondents
to grant, sign and make available to Tasima the outstanding
PRQs.
This court dealt with this
aspect
in paragraphs [33] to [41]. This court's finding appears from
paragraph [40] of the judgment.
9.
He argued, thirdly, that the time given to the respondents to perform
was too short. The court pointed out to him that the respondents
had
months and months during which they should have performed. For months
on end they caused problems for Tasima. This court got
the clear
impression that the respondents wanted Tasima to crash financially so
as to get rid of Tasima, for another body to take
over most probably
the fifth respondent. The respondent also delayed the arbitration
over the validity of the lease aspect with
Tasima.
10.
He argued, fourthly, that it was a complicated matter for the
respondents with many aspects and that they acted upon advice.
Tuchten J and the Full Bench severely criticised their conduct and
also the State Attorney. After judgment in the main matter was
handed
down by this court the State Attorney withdrew as attorneys of the
Respondents and a private firm of attorneys was engaged.
It is clear
that the respondents after the judgment of the Full Bench came to
hand and, hopefully, was read by the role players
in the Department
of Transport they ought to have understood that they were no longer
in breach of contractual obligations but
were blatantly in breach of
judicial obligations imposed upon them by Mabuse J and Strijdom AJ.
To do so blatantly is contempt
of court and the consequences must be
suffered lest all respect for the courts are lost.
11.
Mr Roux argued, fifthly, that the court unduly punished the officials
too severely. That was his opinion.
12.
He concluded that reasonable prospects existed that another court
may come to a different conclusion.
13.
Mr. Leech SC for the applicant Tasima pointed out that the
respondents were in breach of court orders issued on four different
occasions (twice by consent) namely the Teffo order, The Mabuse
order, the Strijdom order and also the order of the Full Bench
and
the respondents deliberately failed to comply with those judicial
orders.
14.
Mr Leech argued that the respondents were trying to assert a right to
go behind the court orders and disobey it.
15.
He pointed out that the important concession by Adv Roux SC that the
respondents have not over a long period of time declared
disputes
over their obligation now the issues before this Court in terms of
the procedure laid down in the agreement between the
parties and
that, on their own version the respondents had no excuse for not
paying and signing the authorisation.
16.
Having reconsidered the matter this court is of the firm belief that
no other reasonable court could come to another decision.
16.
The following order is made:
1.
The application for leave to appeal is dismissed with costs,
including the costs of senior counsel.
2.
The first respondent is to pay the costs of the application for leave
to appeal.
P
EBRSOHN
Acting
Judge of the North Gauteng high Court
For
the Applicant : Adv BE Leech
For
the Respondent: SCAdvBRouxSC
Adv
JA Mohale
Date
of Judgment: 12 Augustus 2013