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IN THE HIGH COURT OF SOUTH AFRICA
(NORTH GAUTENG HIGH COURT)
DELETE WHICHEVER IS NOT APPLICABLE
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: N
(3) REVISED
30 June 2025
DATE
In the matter between:
TRANSNET SOC LIMITED
and
GIJIMA HOLDINGS (PTY) KIMITED
JUDGMENT
MINNAARAJ: Date: 30 June 2025
Case number: 075722-2025
Applicant
Respondent
[1] In this application , the applicant is seeking the following urgent relief:
1 .1 The Responden t is directed to:
a. complete all "Disengagement Services" as that phrase is defined
in the Master Services Agreement concluded between the
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Applicant and the Respondent attached to the founding affidavit
as "FA 1" ("the MSA");
b. take all steps necessary to migrate to the Applicant the "Data
Centre Services" as that phrase is defined in the MSA, including
the Respondent's disengagement from the Active Directory; and
c. complete all the items listed in the annexure to this Order marked
"NOM1" by 30 June 2025.
1.2 The Respondent is interdicted from engaging in any conduct that
disrupts or interrupts the provision of "Services" as that term is
defined in the MSA pending the completion of the Disengagement
Services, steps, and items referred to in paragraph 1 of this Order.
1.3 The Respondent is ordered to pay the Applicant's costs, including the
costs of two counsel, one being Senior Counsel, on Scale C.
[2] Listed in "NOM1" are the items that had to be completed by June 30,
2025. These items are:
2.1 Successfully disengaging and migrating the Active
Directory ("AD") from Gijima's network to the Transnet
owned and managed network, including undertaking the
following key tasks:
a. preparing the on-premises AD to decommission
unused domain and disable unnecessary services;
b. reviewing the disengagement and migration steps
prepared by Gijima, Transnet and Microsoft;
c. developing a high-level strategy on implementation of
the AD migration -ensuring security and integrity of
the on-premises AD;
,., _,
d. granting Transnet and Microsoft administrative access
to TO, T1, T2 systems currently under Gijima's
management;
e. conducting an evaluation of the current AD
infrastructure, including domain controllers, forests
and trusts;
f. finalising password reset and control mechanisms.
2.2 Successfully disengaging and migrating the Data Centre
and Hosting Services ("OCHS"}, which includes the
following tasks and key deliverables:
a. Developing a list of Terminated Services that may
need to be reinstated, on an as and when basis;
b. granting Transnet administrative access to the Azure
AD to migrate the OCHS from the on-premises AD;
c. delivering to Transnet and Microsoft the design or
architectural documentation in respect of the
mainframe for purposes of migrating data to Transnet's
new environment.
2.3 Successfully disengaging and migrating the SAP
Workloads, which includes the following tasks and key
deliverables:
a. granting Transnet and Microsoft access to the
SAP environment firewall;
b. delivering to Transnet and Microsoft the
integration points and special configurations of
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the SAP environment;
c. conducting an assessment of the SAP environment;
d. providing Transnet and Microsoft with on
premises AD domain controllers and DNS
resolution and forwarding between the on
premises AD and Azure AD;
e. providing additional capacity during the
migration, when required by Transnet.
2.4 Successfully disengaging and migrating the Help and Service and
Desk.
[3] In June 2020, the parties entered into the MSA. In this regard, the
respondent agreed to provide information technology ("IT") services to
the applicant for a period of five years, from December 1, 2019, to
November 30, 2024. Regarding the addendum to the MSA, the
termination date was extended from November 30, 2024, to February
28, 2025.
[4] Part and parcel of the MSA was a Disengagement Plan
("disengagement') that was to be implemented from the commencement
of the MSA. It is a complex procedure to ensure the smooth transfer of
IT services on the termination date.
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[5] Following the extended termination date of 28 February 2025, the parties
continued to have further engagements with each other, and
disengagement workshops were held. The applicant successfully
obtained approval for payment of the respondent's services up to June
30, 2025.
[6] The IT services being rendered are of a highly intricate and technical
nature. The obligations related to disengagement are equally
complicated and technical. The papers exchanged are voluminous. It is
not the kind of application that should be entertained in a congested,
urgent court.
[7] The nature of the services rendered is critical, not only to the applicant
but to the country as a whole. It involves the entire country's rail network,
running container and wagon services over thousands of kilometres of
rail with hundreds of depots and shunting yards. It further has a profound
impact on the public purse. To strike the application from the urgent roll
because of the technical nature and volume of papers would not be in
the interest of justice.
[8] The answering affidavit is extensive in the details provided. The matter
involves an interpretation of a historically charged and technically
complex agreement. The history and the technology involved require
context and proper understanding. It is not a matter, as is stated in the
applicant's heads of argument, that it is as simple as asking a single
question: should the respondent be ordered to comply with its clear
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contractual obligation? On my reading of the papers, it would appear
(and no definite finding is made at this stage of the proceedings) that
there are reciprocal obligations resting with both the applicant and the
respondent.
[9] The respondent is submitting that there is a dispute of fact regarding
what the applicants want the respondent to do and what the respondent
can do. The respondent states that it would be impossible for the
respondent to do what the applicant wants it to do. There is also a
dispute of fact raised regarding whose responsibility it is to perform the
transition.
[1 O] A further dispute which is raised is what would be 'reasonable
assistance and information' as defined by the disengagement services
dealt with in prayer 2.1 of the notice of motion.
[11] Of primary concern is whether the applicant has the necessary
infrastructure to take over the IT services rendered by the respondent
abruptly.
[12] The respondent further pleads that there is a tacit term in the MSA
to provide for uninterrupted services, as was the case when the
respondent took over from its predecessor. The respondent further
raised the exception of non adimpleti contractus, as it is alleged that the
obligations under the MSA are reciprocal regarding the disengagement
services.
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[13] The above-stated grounds are examples of disputes of fact on the
papers before this court. There are competing versions of what is
required from whom and when compliance is expected. There is also a
conflict over whether the performance required by the applicant is
feasible. Without the benefit of oral evidence, this court cannot decide
which version is more probable. The court can also not rule that the
respondent's version is so far-fetched or clearly untenable that the court
is justified in rejecting it merely on the papers.
[14] I am of the view that the respondent is justified in its approach to
have requested a referral of the matter to oral evidence.
[15] Having reached the above conclusion, and premised on the
urgent nature of the application, I approached ADJP Davis for guidance.
ADJP Davis provided me with the dates on which the oral evidence may
be heard. I was further advised to convene an urgent meeting with
counsel to discuss time frames for the exchange of statements and
discovery.
[16] The meeting was held on short notice on Friday, 27 June 2025,
and the court is grateful to counsel for having made themselves
available. During the meeting, it was agreed that the application would
be postponed to the week of July 21, 2025, and timeframes were
discussed and agreed upon. Apart from the issues mentioned in the draft
order provided by the respondent's counsel, the respondent's counsel
requested that the issue of exceptio non adimp/eti contractus should also
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be included in the referral order. The counsel for the applicant was
invited to suggest any issue that the applicant would like to include in the
referral order, but counsel indicated that the applicant did not wish to
include anything.
ORDER:
Consequently, I make the following order:
1. The application is postponed to Monday, 21 July 2025 and is referred for
the hearing of oral evidence, before me or any other Judge of this
Division, to determine the following issues:
1.1 Whether, as at the date of the launch of the applicant's application,
it was impossible for the respondent to perform its obligations under
the Master Services Agreement;
1.2 Whether, on a proper interpretation of the Master Services
Agreement, to keep the services from being interrupted, whatever
the incoming service provider had to do when coming into the
contract with the applicant in 2020, the next incoming service
provider would have to do when taking over from the respondent;
alternatively.
1.3 Whether there is a tacit term in the Master Services Agreement that
keeps the services from being interrupted, whatever the incoming
service provider had to do when coming into the contract with the
applicant in 2020, the next incoming service provider would have to
do when taking over from the respondent.
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1.4 Whether the exceptio non adimpleti contractus finds application
herein.
1. 5 Whether annexure "FA 12" to the founding affidavit constitutes an
agreement between the parties.
1.6 Whether the applicant has the technical ability and infrastructure to
take over the IT services from the respondent.
2. The evidence shall be that of any witness whom the parties or either of
them may elect to call, provided that neither party shall be entitled to call
any witness unless that witness is a deponent to an affidavit in these
proceedings, or:
(a) It has served on the other party on Thursday, 10 July 2025, at 16h00
a statement wherein the evidence to be given in chief by such person
is set out; or
(b) The court, at the hearing, permits such a person to be called even
though no such statement has been so served in respect of his
evidence.
3. Either party may subpoena any person to give evidence at the hearing,
whether such person has consented to furnish a statement or not.
4. The fact that a party has served a statement in terms of paragraph 3
hereof, or has subpoenaed a witness, shall not oblige such party to call
the witness concerned.
5. By Thursday, 17 July 2025 at 16h00, each of the parties shall make
discovery, on oath, of all documents relating to the issues referred to in
paragraph 1 of this Order, which are or have at any time been in the
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possession or under control of such party. Such discovery shall be made
in accordance with Rule of Court 35 and the provisions of that Rule with
regard to the inspection and production of documents discovered shall be
operative.
6. The incidence of the costs incurred up to now shall be determined after
the hearing of oral evidence.
Minnaar AJ
Gauteng Division, Pretoria
Heard on
For the Applicant
Instructed by
For the Respondent
Instructed by:
Date of Judgment J l
: 19 June 2025
: Adv. IV Maleka SC with Adv J Mitchell
: Mkhabela Huntly Attorneys Incorporated
: Adv L J Morison SC with Adv M Phukubje
: Nicqui Galaktiou Incorporated
: 30 June 2025