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2024
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[2024] ZALMPPHC 147
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Mathara Investments CC v State Information Technology Agency Soc Limited and Another (10224/2024) [2024] ZALMPPHC 147 (18 October 2024)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
LIMPOPO
DIVISION, POLOKWANE
CASE
NO: 10224/2024
(1)
REPORTABLE: YES/NO
(2)
OF INTEREST TO THE JUDGES: YES/NO
(3)
REVISED
DATE:
18/10/2024
SIGNATURE:
In
the matter between:
MATHARA
INVESTMENTS
CC
Applicant
and
STATE
INFORMATION TECHNOLOGY
First Respondent
AGENCY
SOC LIMITED
MR
S
DZENGWA
Second Respondent
JUDGEMENT
Gaisa
AJ
[1]
The applicant, Mathara Investments CC, has approached this court on
an urgent basis
seeking an order declaring the first respondent's
purported termination of a Professional Service Level Agreement dated
3 September
2024 to be unlawful and
void ab initio
. The
applicant further seeks an order directing the parties to give effect
to the agreement within 24 hours and to comply with
their respective
obligations until its lawful conclusion.
[2]
The central issue before this court is whether the matter warrants
urgent consideration.
It is trite that an applicant who approaches
the court on an urgent basis bears the onus of establishing the
requisite urgency.
URGENCY
[3]
Urgent applications are governed by Uniform Rule 6(12). In terms of
that rule, the
court has discretionary power to dispense with the
forms and service provided for in the rules and to dispose of the
matter at
such time and place and in such manner and in accordance
with such procedure as it deems fit.
[1]
[4]
The first question is whether there must be a departure at all from
the usual process.
[2]
[5]
The applicant is expected, in the founding affidavit, to set forth
explicitly the
circumstances which is averred render the matter
urgent and the reasons why the applicant claims that substantial
redress could
not be afforded at a hearing in due course.
[3]
[6]
Put differently, if the matter were to follow its normal course as
laid down by the
rules, would the applicant be afforded substantial
redress. If not, the matter qualifies to be enrolled and heard as an
urgent
application. If so, the application does not pass the test for
urgency.
[7]
The question as to the absence of ‘substantial redress’
in an application
brought on usual timeframes lies at the heart of
the question of urgency.
[4]
[8]
Urgency is not a matter to be glossed over.
[5]
An applicant is obliged to go beyond a mere allegation of urgency.
[6]
[9]
Even an allegation of an infringement of constitutional rights, on
its own, does not
render a matter urgent.
[7]
[10]
It is an absolute requirement to set forth the reason for claiming
that substantial redress would
not be possible other than via the
urgent application launched.
[8]
ANALYSIS
[11]
In the present matter, the applicant has failed to satisfy the
requirements for urgency for the
following reasons:
[12]
The termination letter from SITA to the applicant was sent on 3
September 2024. However, the
urgent court application was only filed
on 16 September 2024, some 13 days later. This delay undermines the
claim of extreme urgency.
[13]
The applicant has not adequately explained why it could not have
approached the court earlier
or pursued alternative dispute
resolution mechanisms in the intervening period.
[14]
While the termination undoubtedly has serious consequences for the
applicant's business operations,
it is not clear that the harm is
truly irreparable. It is trite that the mere fact that the applicant
may suffer financial loss
is not sufficient to establish urgency. The
issue of whether financial hardship is a basis of seeking urgent
relief has received
attention in this and other Courts. In other
decisions, it has been held that as a general principle, financial
hardship does not
establish a basis for urgency.
[9]
It has been held that the mere fact that irreparable financial losses
have been suffered or would be suffered by the applicant
was not, by
itself, sufficient ground to acquire the requisite urgency necessary
to justify a departure from the ordinary court
rules.
[10]
[15]
In
Ledimo and Others v Minister of Safety and Security and Another
it was held that:
“
[29] The point
which I now have to determine is whether the financial hardships of
the applicants constitute grounds of urgency
sufficient to justify
the extra-ordinary modification of the ordinary rules by the
applicants.
[30] In the unreported
case of
CALEDON STREET RESTAURANTS CC v MONICA D’AVIERA
which was heard in the South Eastern Cape on 7 November 1997 Kroon J
on p 12 quoted the following passage by Fagan J at p 113E-114B
in
IL
& B MARCOS CATERERS (PTY) LTD v GREATERMANS SA LTD AND ANOTHER
which was heard at the same time with the case of
AROMA INN
(PTY) LTD v HYPERMARKETS (PTY) LTD AND ANOTHER
1981(4) SA 108
(CPD):
“
Other litigants
waiting for their matters to be heard would be prejudiced if priority
were afforded to these applications as they
would have to wait
longer. And what distinguishes these two applications from other
matters? Applications for review such as these
occur commonly and are
not given priority. The prejudice that applicants are complaining
about is the possibility that they may
suffer losses of profits - the
losses, if any, sound in money. Assuming that such losses are
irrecoverable, that still does not
distinguish these matters from
many others awaiting their turn on the ordinary roll. Take for
example all the cases wherein general
damages are claimed in delict
including actions instituted under the Compulsory
Motor
Vehicle Insurance Act 56 of 1972. Interest is not claimable on the
amount awarded and litigants suffer financially by delay
in the
adjudication of their matters. Moreover, the fact that a litigant
with a claim sounding in money may suffer serious financial
consequences by having to wait his turn for the hearing of his claim
does not entitle him to preferential treatment. On the other
hand,
where a person’s personal safety or liberty is involved or
where a young child is likely to suffer physical or psychological
harm, the Court will be far more amenable to dispensing with the
requirements of the Rules and disposing of the matter with such
expedition as the situation warrants. The reason for this
differential treatment is that the Courts are there to serve the
public
and this service is likely to be seriously disrupted if
considerations such as those advanced by the applicants in these two
matters
were allowed to dictate the priority they should receive on
the roll. It is, in the nature of things, impossible for all matters
to be dealt with as soon as they are ripe for hearing. Considerations
of fairness require litigants to wait their turn
for the
hearing of their matters. To interpose at the top of the queue a
matter which does not warrant such treatment automatically
results in
an additional delay in the hearing of others awaiting their turn,
which is both prejudicial and unfair to them. The
loss that
applicants might suffer by not being afforded an immediate hearing is
not the kind of loss that justifies the disruption
of the roll and
the resultant prejudice to other members of the litigating public.”
…”
[16]
The urgency appears to be at least partially self-created by the
applicant's delay in bringing
the application.
[17]
The 13-day period between the termination and the filing of this
application is rather a long
time taken by the applicant to bring
this application.
[18]
Furthermore, it appears from the papers that SITA had been
complaining about the applicant's
poor service for some time prior to
the termination letter of 3 September 2024.
[19]
This suggests that the applicant should have been aware of the
potential for termination and
had ample opportunity to take
preemptive legal action or engage in dispute resolution.
[20]
While I am mindful of the potential impact on the applicant's
business and employees, this alone
does not justify bypassing the
ordinary court process.
[21]
As has been shown with the caselaw cited herein, mere prejudice is
not enough. The prejudice
must be irreparable and not susceptible to
recompense by an award of damages.
[22]
In this case, it appears that any prejudice suffered by the applicant
could potentially be addressed
through a claim for damages if the
termination is later found to be unlawful. This further militates
against a finding of urgency.
[23]
In light of the above considerations, I am not satisfied that the
applicant has made out a case
for extreme urgency or any kind of
urgency that would justify hearing this matter outside of the normal
court process. The ordinary
mechanisms of the court are sufficient to
deal with this dispute.
ORDER
[24]
Accordingly, the following order is made:
1.
The application is struck from the roll for lack of urgency.
2.
There is no order as to costs.
N.
GAISA
ACTING
JUDGE OF THE HIGH COURT,
POLOKWANE;
LIMPOPO DIVISION
APPEARANCES
FOR
THE APPLICANTS
:
ADV MOKWENA
INSTRUCTED
BY
:
RAMUSI INC.
:
admin@ramusiattorneys.co.za
:
lotramusi@yahoo.com
FOR
1ST & 2ND RESPONDENTS
:
ADV SIFUDI
INSTRUCTED
BY
:
MOGALE ATTORNEYS
:
mashilomack23@gmail.com
DATE
OF HEARING
:
26 September 2024
DATE
OF JUDGEMENT
:
18 October 2024
This
judgment is handed down electronically by circulation to the parties’
representatives by email. The date and time for
hand-down of the
judgment is deemed to be 18 OCTOBER 2024.
[1]
Uniform Rule 6(12)(a).
[2]
Luna Meubel Vervaardigers v Makin and Another
1977 (4) SA 135
(W) at
136H-137F. Mbude v Premier of the Eastern Cape and Others (218/2022)
[2022] ZAECBHC 3 (3 May 2022)
[3]
Uniform Rule 6(12)(b).
[4]
See East Rock Trading 7 (Pty) Ltd and Another v Eagle Valley Granite
(Pty) Ltd and Others [2011] ZAGPJHC 196. See also Mbude
supra
[5]
Mbude supra. See Hultzer v Standard Bank of SA (Pty) Ltd (1999) 20
ILJ 1806 (LC) at 1809: ‘The court will, however, only
grant
such relief where an applicant is able to persuade the court that
extremely cogent grounds for urgency exist.’
[6]
Mokoena v West Rand District Municipality and Others (unreported
case no 39460/19) (High Court of South Africa, Gauteng Local
Division, Johannesburg) para 27.
[7]
Moyane v Ramaphosa and Others [2018] ZAGPPHC 835;
[2019] 1 All SA
718
(GP). Also see Hotz and Others v University of Cape Town
2018
(1) SA 369
(CC) para 15. Mbude supra.
[8]
Mbude supra at [10]
[9]
See Hultzer v Standard Bank of South Africa (Pty) Limited (J 469/99)
[1999] ZALC 46
(25 March 1999) at para 13; Jonker v Wireless Payment
Systems CC (2010) 31 ILJ 381 (LC) at para 16.
[10]
Ntefe J Ledimo & others v Minister of Safety and Security &
Others (2242/2003)
[2003] ZAFSHC 16
(28 August 2003) at paragraph 32