IN THE HIGH COURT OF SOUTH AFRICA
(NORTH GAUTENG HIGH COURT)
DELETE W HICHEVER IS NOT APP LICAB LE
(1) RE PO RTABL E: N O
(2) OF INTER EST TO OT HE R JUDGES : NO
(3) REV ISED
16 O ctober 2025
DAT E
Case number : 075722-2025
In the matter between:
TRANSNET SOC LIMITED Applicant
and
GIJIMA HOLDINGS (PTY) KIMITED Respondent
JUDGMENT
MINNAARAJ:
Relief claimed and Transnet's amendment:
[1] The applicant ('Transnet') approached the urgent court seeking the
following relief:
1. The respondent (Gijima) is directed to:
2
a. Complete all "Disengagement Services" as that phrase is defined
in the Master Services Agreement concluded between Transnet
and Gijima, attached to the founding affidavit as "FA 1" ('the
MSA'?;
b. Take all steps necessary to migrate to Transnet the "Data Centre
Services" as that phrase is defined in the MSA, including Gijima's
disengagement from the Active Directory; and
c. Complete all the items listed in the annexure "NOM1"
by 30 June 2025, or such other date as may be ordered by this
Court.
2. Gijima 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 2 above.
3. Costs of the application.
[2] Listed in "NOM1" are the items that had to be completed by 30 June
2025 (or such other date as the court may order). These items are:
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:
1. 1 Preparing the on-premises AO to decommission
unused domains and disable unnecessary services;
1.2 Reviewing the disengagement and migration steps
prepared by Gijima, Transnet and Microsoft;
1.3 Developing a high-level strategy on the
3
implementation of the AD migration -ensuring security
and integrity of the on-premises AD;
1. 4 Granting Transnet and Microsoft administrative access
to TO, T1, T2 systems currently under Gijima's
management;
1. 5 Conducting an evaluation of the current AD
infrastructure, including domain controllers, forests
and trusts;
1. 6 Finalising password reset and control mechanisms.
2. Successfully disengaging and migrating the Data Centre
and Hosting SeNices ("OCHS'), which includes the
following tasks and key deliverables:
2.1 Developing a list of Terminated SeNices that may
need to be reinstated, on an as-and-when basis;
2.2 Granting Transnet administrative access to the Azure
AD to migrate the OCHS from the on-premises AD;
2.3 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.
3. Successfully disengaging and migrating the SAP
Workloads, which includes the following tasks and key
deliverables:
3. 1 Granting Transnet and Microsoft access to the SAP
environment firewall;
3.2 Delivering to Transnet and Microsoft the integration
4
points and special configurations of the SAP
environment;
3.3 Conducting an assessment of the SAP environment;
3.4 Providing Transnet and Microsoft with on-premises AD
domain controlfers and ONS resolution and forwarding
between the on-premises AD and Azure AD;
3.5 Providing additional capacity during the migration,
when required by Transnet.
4. Successfully disengaging and migrating the Help and
Service and Desk.
[3] The application was opposed, and it was heard on 19 June 2025.
Gijima's approach was that there are disputes of facts and that if the
application is not struck for want of urgency, or dismissed outright,
disputes of facts exist and the application should be made the subject of
a Mettalurgica/1 order, referring the application for oral evidence. The
following three aspects were identified as disputes of fact:
a. Whether, as at the date of the launch of Transnet's application
(24 May 2025), it was impossible for Gijima to perform its
obligations under the MSA;
b. Whether, on a proper interpretation of the MSA, to keep the
services from being interrupted, whatever the incoming service
provider had to do when coming into the contract with Transnet in
2020, the next incoming service provider would have to do when
taking over from Gijima; alternatively,
1 Metallurgical and Commercial Consultants (Pty) Ltd v Metal Sales Co (Pty) Ltd 1971 (2) SA 388 (W)
5
c. Whether there is a tacit term in the MSA that keeps the services
from being interrupted, whatever the incoming service provider
had to do when coming into the contract with Transnet in 2020,
the next incoming service provider would have to do when taking
over from Gijima.
[4] Judgment was reserved, and both sides submitted extensive written
heads of argument. Having considered the matter, I concluded that it
would be appropriate to refer the application to oral evidence, in line with
the approach adopted by Gijima.
[5] On 27 June 2025, I had a virtual meeting ('the case management
meeting') with the parties to discuss the logistics of the order I intended
to issue. Both parties were invited to identify any additional issues they
would prefer to be included in the referral order. Transnet elected not to
include any further points of reference. Gijima requested that the
question be included as to whether the exceptio non adimpleti contractus
applies in the application.
[6] Having considered the written submissions and the inputs on logistics
provided during the meeting, I gave a judgment on 30 June 2025 ('the
referral judgment'). In terms of the referral judgment, the application was
postponed to 21 July 2025 for the hearing of oral evidence. In terms of
the order, the referral points were defined as:
1. Whether, as at the date of the launch of Transnet's application, it
6
was impossible for Gijima to perform its obligations under the MSA.
2. Whether, on a proper interpretation of the MSA, 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 Gijima; alternatively,
3. Whether there is a tacit term in the MSA 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
Gijima.
4. Whether the exceptio non adimpleti contractus finds application
herein (additional point of reference as requested by Gijima during
the case management meeting).
5. Whether annexure "FA 12" to the founding affidavit constitutes an
agreement between the parties (identified as a relevant point by me).
6. Whether T ransnet has the technical ability and infrastructure to take
over the IT services from Gijima (identified as a relevant point by
me).
[7] Throughout, and despite the voluminous and intricate nature, the
application was treated as urgent. Transnet's request that Gijima
complete all the items listed in "NOM1" by 30 June 2025 (or such other
date as the court may order) fuelled the urgency of the application. In
amplification, and as stated in the referral judgment, the nature of the
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services rendered is critical, not only to Transnet 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.
[8] Mr Pandelani Reuben Munyai, the Group Chief Information Officer of
Transnet, and also the deponent to the founding and replying affidavits,
gave oral evidence. Transnet also called Mr Ravi Bhat, a representative
of Microsoft South Africa (Pty) Ltd ('Microsoft'). Mr Sylvester Samuel,
the Chief Operating Officer of Gijima, and the deponent to the answering
affidavit, gave oral evidence on behalf of Gijima. Gijima further called Mr
Vincent Willie, an ICT consultant employed by Gijima, to testify. All these
witnesses gave extensive testimony and were exposed to intense cross
examination. I will deal with their testimony later in this judgment.
[9] Following the conclusion of the oral evidence, time frames were agreed
upon to submit supplementary written submissions, and the application
was postponed to 15 August 2025 for argument.
[1 OJ Transnet delivered an amended notice of motion on 6 August
2025. The amended notice of motion stated that Transnet intends to
apply on 15 August 2025 for the following urgent relief (the amendments
are in bold):
1. That Gijima is directed to:
8
a. Complete all "Disengagement Services" as that phrase is defined
in the MSA concluded between Transnet and Gijima, attached to
the founding affidavit as "FA 1" ("the MSA");
b. Take all steps necessary to migrate to Transnet the "Data Centre
and Hosting Services" as that phrase is defined in the MSA,
including Gijima's disengagement from the Active Directory; and
c. Complete all the items listed in the annexure "NOM1"
within the times stipulated in NOM1, or such other date(s) as
may be ordered by this Court.
1. 1 Gijima 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 above.
1. 2 Costs of the application.
[11] Annexure NOM1 to the amended notice of motion also contained
amendments and read (the amendments are in bold):
Within 10 (ten days) of the granting of this order(and not by 30 June
2025, or such other date as the Court may determine as initially prayed
for):
1. Successfully disengaging and migrating the Active
Directory ("AD'? from Gijima's network to the Transnet
owned and managed data centre and cloud
infrastructure, including undertaking the following
key tasks:
1. 1 Preparing the on-premises AD to decommission
unused domains and disable unnecessary services;
9
1. 2 Reviewing the disengagement and migration steps
prepared by Gijima, Transnet and Microsoff;
1. 3 Developing a high-level strategy on the
implementation of the AD migration -ensuring security
and integrity of the on-premises AD;
1.4 Granting Transnet and Microsoff administrative access
to TO, T1, T2 systems currently under Gijima's
management;
1. 5 Conducting an evaluation of the current AD
infrastructure, including domain controllers, forests
and trusts;
1. 6 Finalising password reset and control mechanisms.
Within 10 (ten days) of the granting of this order (and not by
30 June 2025, or such other date as the Court may determine as
initially prayed for):
2. Successfully disengaging and migrating the Data
Centre and Hosting Services ("DCHS'J, which
includes the following tasks and key deliverables:
2.1 Developing a list of Terminated Services that may
need to be reinstated, on an as-and-when basis;
2.2 Granting Transnet administrative access to the Azure
AD to migrate the OCHS from the on-premises AD;
2.3 Delivering to Transnet and Microsoff the design or
architectural documentation in respect of the
mainframe for purposes of migrating data to Transnet's
new environment.
10
Within 10 (ten days) of the granting of this order (and not by
30 June 2025, or such other date as the Court may determine as
initially prayed for):
3. Successfully disengaging and migrating the SAP
Workloads, which includes the following tasks and key
deliverables:
3.1 Granting Transnet and Microsoft access to the SAP
environment firewall;
3.2 Delivering to Transnet and Microsoft the integration
points and special configurations of the SAP
environment;
3. 3 Conducting an assessment of the SAP environment;
3.4 Providing Transnet and Microsoft with on-premises AD
domain controllers and ONS resolution and forwarding
between the on-premises AD and Azure AD;
3.5 Providing additional capacity during the migration,
when required by Transnet.
4. Successfully disengaging Transnet's 7 (seven)
mainframe applications from its mainframe to
Microsoft's Azure Cloud platform, including
undertaking and completing the following key
tasks and deliverables:
4. 1 Completing a technical questionnaire in order for
Microsoft South Africa (Pty) Ltd ("Microsoft? to
assess Gijima's infrastructure;
1 l
4.2 Identifying the COBOL (Sapiens) and D82 as the
primary technologies in use, with a relatively small
footprint; and
4.3 Engaging and cooperating with Microsoft and
Transnet to conduct a 6 six to 8 eight-week
assessment to inventory applications, data and
interfaces.
5. Gijima cooperating with, and providing to Transnet
and Microsoft all support necessary as
contemplated in the MSA to facilitate the
successful completion of the disengagement of the
Exchange On-Premises to Azure Virtual Machines,
including undertaking and completing the following
key tasks and deliverables:
5. 1 Completing a detailed architecture of the existing
Exchange On-Premises deployment, including:
5. 1. 1 server roles (including Mailbox, Edge,
Hybrid, etc.)
1
5.1.2 version and patch levels;
5.1.3 network topology and firewall rules;
5.1.4 hybrid configuration settings; and
5.1.5 inventory of mailboxes, connectors,
accepted domains and transport; and
5.2 Ensuring that all necessary ports are open between
On-Premises Exchange servers, Azure VMs and
Microsoft 365 endpoints, required for hybrid mail
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flow, directory synchronization, certificate
validation and secure communications.
[12] In a notice dated 9 August 2025, Gijima objected to Transnet's
proposed amendment. In this notice, Gijima stated that the proposed
amendment is prejudicial to the conduct and presentation of its case in
a manner that cannot be cured by a postponement or an order as to
costs.
[13] Gijima listed various grounds of objection to substantiate the
prejudice that Gijima will suffer should the amendment be permitted. In
short, these grounds are:
a. In the hearing of oral evidence, Gijima completed the presentation
of its case, including the leading of its own witnesses and the
cross-examination of the Transnet witnesses. The presentation of
evidence by Gijima and the conduct of the cross-examination of
the Transnet witnesses were determined by the referral issues.
b. The question of impossibility was the main issue traversed during
the hearing of oral evidence.
c. Whether a task is impossible or not depends on the task. The
tasks Transnet wanted Gijima to perform were those set out in its
original notice of motion. With the amendment, Transnet has
added to that list of tasks ex post facto by inserting paragraphs 4
and 5 into its prayers in NOM1.
13
d. For the first time, the seven critical applications that run on the
mainframe are specified.
e. With the amendment, Transnet attempts to build a six-to-eight
week analysis into the order to be granted against Gijima. This
would be profoundly unfair, both in terms of the timing, the
increased scope, and the contradiction of Mr Baht's testimony
given on behalf of Transnet.
f. The amendment widens the issues when the evidence has
already been led. It is an ambush and cannot be accommodated
within a fair process.
g. A pleader cannot canvass one issue in the trial and then, in a
post-hearing amendment, attempt to canvass another.
h. What Transnet's amendment does is extend the period for the
performance of the MSA from the originally chosen date of
performance as set out in Transnet's original founding papers to
an unspecified future date, 10 days from the granting of the order.
It completely changes the framework of the enquiry into
impossibility, which has already been completed during the oral
evidence hearing and cannot practically be reopened.
i. Transnet cannot litigate in a piecemeal and sequential fashion,
causing disruption to the court and Gijima, to say nothing of
delaying and disrupting the actual process of bringing about the
transition and disengagement.
14
j. The proposed amendment to the notice of motion does not cure
the vagueness that originally rendered the original notice of
motion defective.
[14] In terms of the provisions of Rule 28(1), any party desiring to
amend any pleading or document, other than a sworn statement, filed in
connection with any proceedings, shall notify all other parties of his
intention to amend and shall furnish particulars of the amendment. Rule
28(2) provides that the notice referred to in subrule ( 1) shall state that
unless written objection to the proposed amendment is delivered within
10 days of delivery of the notice, the amendment will be effected. Rule
28(3) deals with the requirement of an objection to a proposed
amendment. Rule 28(4) caters for an application for leave to amend
following an objection to the proposed amendment.
[15] Without complying with the prescriptions of Rule 28(1), Transnet
delivered the amended notice of motion on 6 August 2025.
[16] An amendment cannot be granted for the mere asking thereof.
Some explanation must be offered thereof, and such explanation must
be in the founding affidavit filed in support of the amendment application.
If an amendment is not sought promptly, a reason must be given for the
delay. The party seeking the amendment must show prima facie that the
15
amendment has something deserving of consideration, and the
application must not be ma/a fide.2
[17] Insofar as Transnet implies that condonation should be granted
in terms of Rule 6(12) (as prayed for in prayer 1 of the amended notice
of motion), then Transnet ought to have delivered an affidavit to justify
non-compliance with Rule 28 and to apply for the amendment to be
granted. Even more so when an objection to the proposed amendment
is lodged. Transnet failed to provide any explanation under oath to justify
the amendment or to address Gijima's objections.
[18] Transnet argued that, had the application not been referred for
oral evidence, and had further time not lapsed, Transnet would have
been entitled to an order for performance by the deadline of 30 June
2025. Since the deadline has long passed and the court can no longer
grant relief, that is to be complied with by 30 June 2025, Transnet has
sought an amendment to more accurately align with a new timeframe
within which Gijima is to comply with its Disengagement obligations.
[19] Transnet further argued that Constitutional Rights are at play and
as such it would be just and equitable that the amendment be effected.
I find it difficult to align myself with this approach.
Vinpro NPC v President of the Republic of South Africa (1741/2021) (2021] XAWCHC 261 (3
December 2021) at par 25
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[20] The vital consideration for the court to judicially exercise its
discretion is that an amendment will not be allowed in circumstances
which will cause the other party such prejudice as cannot be cured by
an order for costs, and where appropriate, a postponement.3 The power
of the court to allow material amendments is, accordingly, limited only by
considerations of prejudice or injustice to the opponent.4
[21] The introduction of the proposed amended notice of motion
indeed shifted the goalposts regarding both the urgent nature of the
application and the tasks Transnet insists Gijima should complete. The
inescapable question is whether the application was urgent when it was
issued and whether it constituted an abuse of this Court's process.
[22] The amendment is an attempt to escape the proverbial pinch of
the shoe. It is tailored to fit in with the oral evidence of Mr Baht, especially
on the time needed to do the assessments.
[23] On the amendment, I find that the objections are valid. The
amendment will cause prejudice and an injustice to Gijima. Neither of
which can be cured by an appropriate costs order.
[24] In the premises, the amendment is set aside, and Transnet is
bound by the relief claimed in the original notice of motion.
3 Moo/man v Estate Moo/man 1927 CPD 27 at 29
4 Devonia Shipping Ltd v MV Luis (Yeoman Shipping Company Ltd intervening) 1994 (2) SA 363 (C)
at 396G
17
The MSA:
[25] In June 2020, the parties entered into the MSA. In this regard,
Gijima agreed to provide information technology ("IT") services to
Transnet for a period of five years, from 1 December 2019 to 30
November 2024. As an addendum to the MSA, the termination date was
extended from 30 November 2024 to 28 February 2025.
[26] 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.
[27] Following the extended termination date of 28 February 2025, the
parties continued to engage with each other, and disengagement
workshops were held. Transent successfully obtained approval for
payment of Gijima's services up to 30 June 2025.
[28] Clause 54 of the MSA sets the guidelines for disengagement. It
imposes a series of obligations on Gijima to cooperate with Transnet to
achieve a smooth and orderly migration of IT services.
[29] 'Disengagement' means "the complete transition of terminated
Services from [Gijima] ... as part of the Disengagement Services and in
cooperation with Transnet so as to not cause any unnecessary
18
interruption of, or cause any unnecessary adverse impact on the
Services ... ". (clause 52 of Attachment A to the MSA).
[30] 'Disengagement services' mean the provision by Gijima of all
reasonable information and assistance to Transnet to enable Transnet
or a Third Party designated by Transnet to take over Gijima's obligations
under the MSA in the event of termination or expiration of the MSA
(clause 55 of Attachment A to the MSA).
[31] Clause 54.1.1 of the Master Services Agreement sets a clear
deadline for disengagement. It provides that upon termination or
expiration of MSA, Gijima shall have completed the Disengagement
Services for the Services or the applicable Service Towers, as the case
may be, in full cooperation with Transnet, its Affiliates and/or third
parties, including, as the case may be, any replacement provider(s) that
Transnet may designate.
[32] Clause 54.1.5 of the MSA places the obligation to prepare the
Disengagement Plan on Gijima. As submitted by Transnet, the
Disengagement Plan is the compass document for disengagement.
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[33] In terms of clause 54.2.1 of the MSA, commencement of the
Disengagement Services shall be on the date stipulated by Transnet and
for a period to be mutually agreed by the Parties and in accordance with
Attachment X2 to the MSA.
[34] Attachment K to the MSA prescribes Gijima's most important
obligations (or Critical Deliverables). Attachment K confirms that Gijima
is obliged to prepare the Disengagement Plan. According to Transnet,
there is no obligation on Transnet to prepare any plan anywhere in
Attachment K (or anywhere else in the MSA). As would be evident from
the paragraphs dealing with the referral points, Transnet's approach in
this regard is flawed.
[35] Clauses 54.1.4 and 54.1.5 of the Master Services Agreement
elaborate on the Disengagement Plan. Gijima must prepare an overview
for disengagement, referred to as Attachment X 1, and then the
Disengagement Plan itself, referred to as Attachment X2.
[36] In turn, Attachment K to the MSA requires two versions of the
Disengagement Plan. The first is an initial high-level Disengagement
Plan. Gijima had to prepare this preliminary version of the
Disengagement Plan within three months of the start of the Master
Services Agreement (meaning a deadline of 29 February 2020). Gijima
also had to update the preliminary version on an annual basis (clause
54.1.6).
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[37] The second version of the Disengagement Plan is the final
detailed version. Gijima had to prepare the final version 24 months
before the end of the MSA, or (as would happen here) within one month
of an earlier termination of the MSA The fact that the MSA required
Gijima to prepare the final version of the Disengagement Plan a full two
years before the end of the MSA emphasises the importance of an
orderly, well-planned disengagement. Attachment K imposes a severe
penalty if Gijima misses the deadline: R100 000.00 per week.
[38] Attachment K, having set the deadline for the Disengagement
Plan, clause 54.1.1 of the Master Services Agreement then sets the
deadline for Disengagement: Gijima must complete Disengagement by
the time the Master Services Agreement, or any of the Service Towers,
terminates or expires.
[39] Throughout this process, Transnet still needs IT services while
Gijima moves towards Disengagement. For that reason, Gijima remains
obliged to:
a. Perform the Services (clause 54.1.7: "[Gijima's] obligation to
provide the Services shall not cease until the Disengagement
Services have been completed in accordance with Attachment
X2, to the satisfaction of Transnet'), and
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b. Perform the Disengagement Services until Disengagement is
completed to Transnet's satisfaction (clause 54.2.2: "[Gijima]
agrees that the Disengagement Services shall continue for a
period of time, which may be for a period of up to 12 (twelve)
months, or such longer period as is required by Transnef'J.
[40] The MSA divided IT services into seven groups, known as Service
Towers. These Service Towers are:
a. Cross-functional services.
b. Help and service desk services.
c. End user computing services.
d. Collaboration services.
e. Data centre and hosting services.
f. Project management services.
g. Relationship management services.
[41] The MSA was intended to expire on 30 November 2024. Despite
the agreed-upon expiry date, clause 51 allowed Transnet to terminate
the MSA or individual Service Towers earlier, with 90 days' notice
(clause 51.4.1.1 ). One of the grounds for early termination was the
depletion of Transnet's budget for the MSA.
22
[42] On 10 April 2024, Transnet, in accordance with a notice of partial
termination, terminated some Service Towers on 90 days' notice due to
the depletion of the contract budget and value· The notice distinguished
between:
a. Service Towers that Transnet was terminating on 90 days' notice
(called "Terminated Services"); and
b. Service Towers that Gijima would still provide for the remainder
of the MSA and until the completion of the Disengagement
Services (called "Remaining Services").
[43] The Terminated Services include help and service desk, end user
computing, collaboration services, and relationship management.
Transnet no longer needed Gijima to perform the Terminated Services.
Transnet already moved them in-house as part of its corporate strategy
to in-source its IT services.
[44] The Remaining Services are data centre and hosting services.
Gijima is obliged to continue performing them during the Disengagement
Period and until the Disengagement Services have been completed to
Transnet's satisfaction.
23
[45] Data centre and hosting services involve providing the necessary
services and activities to support Transnet's centralised production,
quality assurance, and development computing environments. This
includes the design, implementation, support, management, and
maintenance of the data centre and hosting facilities on behalf of
Transnet.
[46] Transnet's termination notice also triggered (and accelerated) the
deadlines for disengagement. The termination notice triggered the
deadline for the final version of the Disengagement Plan. This is because
Attachment K required Gijima to send the final version of the
Disengagement Plan 24 (twenty-four) months before the end of the Term
[so by the end of November 2022] or within 1 (one) month of Gijima
receiving a Termination Notice. The termination notice triggered this
second deadline. This meant that Gijima was obliged to prepare and
send the final version of the Disengagement Plan by mid-May 2024.
[4 7] The termination notice further triggered the start of the
Disengagement Period because, as stipulated in clause 54.2.1, the
notice specified termination dates for both the Terminated Services and
the Remaining Services.
24
(48] According to Transnet, Gijima missed both deadlines. Transnet
extended the Disengagement Period for the Remaining Services from 1
December 2024 to 28 February 2025.
(49] Between November 2024 and April 2025, Transnet hosted
several workshops with Gijima about disengagement. According to
Transnet, Gijima was generally uncooperative.
[50] On 1 December 2024, Transnet reminded Gijima that it had to
complete the Disengagement Services for the Remaining Services by
the extended deadline of 28 February 2025. Gijima replied that it would
"proceed to provide the Services until agreement is reached on terms
that are not unilateral but are practically and commercially viable in the
circumstances." Transnet contends that Gijima's reply made no sense,
as, according to Transnet, the parties had already reached an
agreement on the terms in the Master Services Agreement.
(51] On 12 December 2024, Transnet sent a letter of demand. In this
letter, Transnet demanded, among other things, that Gijima cease
performing the Terminated Services and that it submit the final version
of the Disengagement Plan for the Remaining Services. In response,
Gijima asked for "a detailed Transition Plan".
25
[52] According to Transnet, the excuse of "a detailed Transition Plan"
became the standard excuse for not meeting the Disengagement
deadline. Transnet's stance is that this excuse falls flat because the MSA
requires Gijima to prepare the Disengagement Plan, and Transnet has
no related obligation.
[53] The stance adopted by Transnet is flawed, as there were
reciprocal obligations on both parties. I deal with this in the discussion of
the referral points.
[54] Transnet remains insistent that the Transition Plan has nothing to
do with Disengagement and is unrelated to this phase of the Master
Services Agreement's life cycle. Despite this insistence, Transnet stated
that it still did what it could to assist Gijima with disengagement, including
providing no fewer than three transition plans.
[55] Transnet sent another letter on 20 December 2024, providing
more details about the actions Gijima must take to complete the
Disengagement of the Remaining Services by the extended deadline of
28 February 2025. Gijima again asked for a transition plan, requiring
Transnet to provide its plan regarding the migration of its Terminated
Services. Gijima also demanded an explicit agreement regarding all
details inherent in a disengagement of this magnitude and complexity.
26
[56] According to Transnet, the MSA mentions a Transition Plan, but
only for the 2019 transition from the previous, pre-MSA provider ("T
Systems") to Gijima.
[57] Gijima took over from T-Systems in 2019/2020. According to
Gijima, what Gijima took over from T-Systems to service Transnet in
2019/2020 is substantially the same as what Transnet now wants to take
over from Gijima. Gijima argues that the T-Systems process was a
successful disengagement and transition. The T-system process is
clearly documented in Annexure "01" of the answering affidavit. There
is no reason why the T-System process cannot readily be adapted to
facilitate the current transition and disengagement.
[58] Gijima pleads a tacit term to this effect, stating that the parties
would handle the disengagement and transition of the information and
communication technology services in accordance with the T-System
process.
[59] During the T-Systems process, there were three parties: T-
Systems (the outgoing party), Transnet (the client), and Gijima (the
incoming party). The 'heavy lifting' was done by Gijima. It designed the
transition plan (annexure "01 "). It hired and then acquired from T-
27
Systems the entire infrastructure, including the data centre building,
mainframe computer, legacy programs, software, coding, and coded-in
IP addresses, which Transnet had been using for its main operations for
years before T-Systems took over. It has 16 years of system
configurations built into it, and it contains a large volume of application
data.
[60] Gijima submits that the significance of this history cannot be
overstated because it means, if one has any insight into the technical
complexity of something as vast as the entire country's rail network
running container and wagon services over thousands of kilometres of
rail with hundreds of depots and shunting yards and the many years that
this has been running, that there is absolutely no possible other way of
providing Transnet with the same information communication technology
services without replicating, or acquiring, that which T-Systems owned
and that which Gijima now owns.
[61] Transnet is, however, adamant that the T-Systems process
differs vastly from the current disengagement and transition. For
instance, the current process does not include the human resources
element.
28
The Disengagement Plan:
[62] In compliance with clause 54.1.5 of the MSA, Gijima compiled the
Disengagement Plan and submitted it to Transnet in or about September
2020. Transnet, through Mr Munyai, only accepted the Disengagement
Plan on 28 August 2023.
[63] No plausible explanation was provided for why Transnet took
almost three years to accept the Disengagement Plan. Due to the
timeframes imposed by the Disengagement Plan, its acceptance played
a crucial role. It is ironic that Transnet, having waited for almost 3 years
to accept the Disengagement Plan, now complains that Gijima did not
comply with the strict timeframes imposed thereof and labels Gijima as
being obstructive.
[64] On a reading of paragraph 9 of the Disengagement Plan, there
was no obligation on Gijima to perform the following duties:
a. Any upgrades to systems and procurement of new licences or
upgrades of licences.
b. Ceding of any shared licences to Transnet or the new duly
appointed service provider.
c. Any modification or update to existing designs or architectural
artefacts relating to changes required to fit the Transnet or newly
appointed service provider delivery models.
d. Any changes required to existing infrastructure, including
additional actions required to connect to existing infrastructure to
29
facilitate data replication or migration as part of Transnet or the
newly appointed service provider's transition of the towers.
e. Any implementation of new infrastructure required for transition
purposes of the disengagement or the onboarding of s 19 7's (this
is a reference to staff being transferred in terms of section 197 of
the Labour Relations Act).
f. Consulting services required outside of transfer and
disengagement activities.
g. Any transition services or migrations to new platforms.
h. Transfer of any other multi-tenant shared services of Gijima.
[65] Further included in the Disengagement Plan, under the heading
"Constraints and dependencies" is:
"The key dependency for full Gijima disengagement, in particular with
respect to all phases which will be Transnet's or the newly appointed
service provider, include readiness to take on the infrastructure and
services, without creating the risk of outages for Transnet."
[66] It is Gijima's submission that Transnet has not demonstrated
readiness. The most glaring "missing part" in Transnet's set-up to
receive and operate the data to be transferred from Gijima is a
mainframe computer of adequate scale and design. Transnet, at least
for the time being, has no mainframe to migrate its data onto.
30
First point of referral: Whether, as at the date of the launch of Transnet's
application, it was impossible for Gijima to perform its obligations under the
MSA.
[67) The application was launched on 24 May 2025, and Transnet
sought Gijima to comply by 30 June 2025, or such other date as may be
ordered by the court.
[68] To determine whether it was impossible for Gijima to perform its
obligations under the MSA on any of these specified dates, a proper
analysis of the evidence presented is required.
[69] The three tiers of infrastructure for which Gijima is responsible are
primarily the mainframe infrastructure, the midrange infrastructure and
the Wintel infrastructure. There is also the building where the machines
are hosted (stored), known as a data centre. It has suitable equipment,
a data recovery service, storage, backup services, and networking, all of
which comprise the infrastructure that Gijima provides to Transnet to
operate its information communication technology services. Gijima
employs approximately 140 information and communication technology
skilled personnel to support this infrastructure and provide data centre
and hosting services. The salary run for these technicians is
approximately R14 million per month. Gijima is currently billing Transnet
approximately R 17 million per month to provide data centre and hosting
services, which include Active Directory (a security layer in the Wintel
environment), SharePoint services, and other cross-functional services.
31
[70] What then was the position as at the date of the launch of the
application or 30 June 2025? Was it impossible for Gijima to render the
services under the MSA both to disengage and to keep the services
running until the moment of disengagement responsibly and safely, and
did Transnet have the equipment capacity, both as to infrastructure and
skilled staff, necessary to take over the rendering of the services itself
responsibly and safely?
[71] The first to testify was Mr Munyai, who was spearheading a
project to modernise Transnet's information communication technology
services. Mr Munyai worked with several technology service providers
towards this goal.
[72] Mr Munyai was adamant that Transnet was in a state of readiness
to take delivery and take over the rendering of services from Gijima
safely and responsibly as at the date of the launch of the application
because it had a large contingent of information communication staff
(some 500 plus staff members in this department) and its transition
partner Microsoft South Africa Limited, had supplied it with Cloud
services sufficient to receive Transnet's data stored by Gijima and to
perform the processing functions previously undertaken by Gijima in its
production environment (comprising the mainframe, midrange and
Wintel environments) by hosting this data in the Azure Cloud platform,
which, according to Mr Munyai, was ready to take over from Gijima.
32
[73] The evidence of Mr Munyai was that Microsoft was Transnet's
new service provider in this regard and that its skill set and Azure Cloud
service for which Transnet contracted was sufficient to give Transnet the
necessary infrastructure and receptive and functional information
communication technology environment into which Transnet's data
could be migrated to ensure a seamless handover.
[74] The evidence revealed that the mainframe hosts seven critical
applications essential to the maintenance and operation of Transnet
Freight Rail's business. Mr Munyai described these as mainframe-native
applications. These applications were written for and run on a
mainframe, developed in the 1980s. Since then, they have undergone
continuous development on mainframe architecture, becoming what are
known as legacy applications.
[75] These legacy applications play a crucial role in controlling the
movement of wagons and locomotives across the rail infrastructure of
the country, moving ore, coal, gas, petroleum, foodstuffs and
innumerable other freight goods, which generate the turnover and
facilitate the economic functioning of the country's rail logistics system,
which interfaces with its ports and mining and other rail-related
infrastructure. These applications on the mainframe, which are central
to Transnet Freight Rail's business, are essential. Being native to
mainframes, they can only run on a mainframe. If they are to run in the
Cloud, i.e., on other computers that are not mainframes, they need to be
33
rewritten to retain their logic and functionality while modernising their
architecture for Cloud operation.
[76] Mr Bhat confirmed this. He confirmed that the document Mr
Munyai called Transnet's "transition plan" was a document comprising
eight pages of slides with small diagrams reflecting the migration
proposal. It dealt only with the midrange (SAP) and Wintel environments
of Transnet's ICT services and did not address the mainframe at all. This
"transition plan" was provided to Gijima for the first time on 22 November
2024, some 8 days before the end of the MSA.
[77] In response to a question by Transnet's counsel regarding
Gijima's case, which inquired about the inability to migrate mainframe
applications from the current mainframe to Azure, Mr Bhat stated that
mainframe applications are very specific and would require different
migration plans. He testified that it has been done before, but it depends
on the structure of the applications and their interaction with the
environment. An assessment would need to be conducted to understand
the applications' purposes, their functionality, and the environment in
which they operate. Such a process would take six to eight weeks.
[78] Mr Bhat testified that a six-to-eight-week analysis process would
be required of the mainframe before Microsoft could begin to devise a
Cloud solution for the mainframe services and applications provided by
Gijima to Transnet. During that period, Microsoft would also assess and
34
advise Transnet on whether it was possible at all to migrate the
mainframe to the Cloud.
[79] Those six to eight weeks were revealed to Gijima for the first time
as part of Mr Bhat's witness statement, dated 11 July 2025. This
revelation was only made after the application launch date.
[80] On a question by the court as to whether all of this would have
been ready on 30 June 2025, Mr Bhat responded that unless the
assessment is done in depth, there cannot be a definite answer as to
whether it is possible to migrate to Azure.
[81] This concession is of great importance herein. From this
concession, it is clear that until the required assessment is completed,
migration cannot proceed. The evidence is clear that no such
assessment was done.
[82] It follows that the foundational step of the mainframe migration
process had not occurred when the application was launched, as
Microsoft had not yet commenced the analysis of the mainframe. This
was confirmed by Mr Bhat, who thus undermined Mr Munyai's testimony
that Microsoft had been ready to migrate Gijima's services to the Azure
Cloud services.
35
[83] Absent a transition plan, which Transnet was contractually
required to provide, Gijima couldn't render the Disengagement Services
by 30 June 2025 (or on a date to be determined by the court).
[84] That impossibility was not of Gijima's making. Transnet
introduced its "transition partner", Microsoft South Africa, for the first time
on 22 November 2024, a mere eight days before the contract was due
to expire. On the same day, it provided a high-level "flight plan", which
was not a transition plan in any sense contemplated by Attachment X 1,
nor did this plan include the mainframe.
[85] To date, neither Transnet nor Microsoft has produced a transition
plan capable of facilitating the disengagement of the mainframe.
[86] In these circumstances, it is unnecessary to determine any further
aspect of Transnet's claimed readiness to receive or migrate services by
the date of the application.
[87] On the evidence of its own witnesses, Transnet had not achieved,
and indeed had not even initiated, the foundational step required to
transition the mainframe environment, which is the cornerstone of its ICT
infrastructure.
[88] The analysis required by Microsoft had not commenced as at the
date the application was launched in May 2025, nor by 30 June 2025,
36
and remained incomplete even at the commencement of oral evidence
on 21 July 2025.
[89] It is difficult to reconcile this evidence with Mr Munyai's assertion
that Transnet was ready to take over the services at the time of launching
the application. The gap between the accounts of Mr Munyai and Mr
Baht is striking.
[90] Mr Munyai's understanding of both the technical environment and
the obligations under the Master Services Agreement diverged not only
from Gijima's position, but also from that of Transnet's own appointed
transition partner, Microsoft. While Mr Munyai relied on the Microsoft
transition plan (annexure FA9) to assert readiness, Mr Bhat confirmed
during cross-examination that this document did not address the
mainframe at all. The portion referencing VMware AVS dealt exclusively
with the Wintel environment, meaning that only two of the three core
infrastructure components covered by Gijima under the MSA were
addressed in that plan.
[91] Mr Munyai also relied on annexure PRM3 attached to his witness
statement as evidence of Transnet's transition plan. However, PRM3
suffers the same fate as FA9: it too expressly excludes the mainframe.
Comprised of five slides containing high-level diagrams, PRM3 states
explicitly that its focus is on Transnet's application inventory and "not the
multiple number of server (infrastructure) instances per application" -
37
an exclusion that, by definition, omits the mainframe infrastructure
hosted by Gijima.
[92] Moreover, PRM3 was prepared on 1 July 2025. This was done
after the 30 June 2025 deadline stipulated in Transnet's original notice
of motion. It postdates the period in which Transnet bore the burden of
demonstrating that it was ready to assume the services and, as such,
serves no evidentiary purpose.
[93] Mr Munyai was the sole witness from within Transnet's ranks. His
colleagues who wrote the memos recommending that Gijima be retained
beyond the termination of the MSA were not called. These colleagues
of Mr Munyai were senior employees in the business and operating
division with well-motivated reasons for retaining Gijima as a transition
partner and as the entity to continue rendering the data centre and
hosting (of the applications belonging to Transnet) services. It would
have assisted Transnet if these people had been called to explain that
they had been persuaded by internal processes in engagement with Mr
Munyai to accept the modernisation plan and that they had been
satisfied that Mr Munyai's refusal of their proposals had been rational
and did not put Transnet's operations at risk. Instead, Transnet elected
to rely on the sole and subjective evidence of Mr Munyai to present
Transnet's case.
[94) On behalf of Gijima, Mr Samuel and Mr Willie testified. They were
both employed by Transnet and subsequently by Gijima. They testified
38
that the MSA had been negotiated after the award of the tender to Gijima
in 2020, that they had prepared the disengagement plan, which had
been signed by Mr Munyai in 2023 on behalf of Transnet. They further
testified that when they began working with Transnet to disengage, they
repeatedly emphasised that the disengagement plan was only half of the
process and that the transition plan was essential from Transnet.
[95] Mr Samuel and Mr Willie also testified that Transnet had never
produced the required detailed transition plan, citing the transition plan
drawn in the T-Systems process as an example.
[96] They also testified that Gijima had tried to assist in meeting
Transnet's demand for a costed disengagement plan (which is not an
obligation contained in the MSA; all the MSA requires the parties to do
is to agree on a final disengagement plan). In this regard, it suffices to
state that courts cannot compel parties to agree, particularly regarding
the preparation of disengagement plans throughout the period of the
MSA.
[97] It is essential to note that the first disengagement plan, submitted
to Transnet in August 2020, was only signed by Transnet in August
2023. At this time, the agreement only had two years to run, and there
were subsequent disengagement plans prepared, as testified to by Mr
Willie.
39
[98] The evidence clearly reveals that there was a failure of minds to
meet on what was required. Gijima insisted that a transition plan was
needed before it could turn off the services. On the other hand, Transnet
treated Gijima as a service provider that had to do everything. But as
Gijima was not providing the new infrastructure to host Transnet's
applications and data, it needed that infrastructure to be identified and
prepared to receive those applications and data (combined, referred to
as workloads) before it could turn off the services and complete its
disengagement obligations.
[99] The evidence revealed that insofar as a new mainframe was
concerned, that had not yet been procured, so the like-for-like transition
was impossible as at the date of the launch of the application. The
Microsoft Azure option had not been even traversed in Microsoft's
"transition plan" and the Integrated Train Plan (ITP) upgrade (which
Transnet is expecting to replace some legacy applications) was only
entering phase 1 and it was in the process of being processed.
[100] In sum, Transnet had three irons in the fire, the replacement
mainframe (like for like - lift and shift from IBM, which is still in
procurement); the Microsoft Azure option (which has not yet begun the
analysis of the mainframe applications which will take at least six to eight
weeks, according to Mr Bhat of Microsoft and thus no indication if it was
possible to do so for all the applications and in what timeframe it can be
done); or the ITP modernisation programme which is only in respect of
phase 1.
40
[101] In relying on the lone voice of Mr Munyai, Transnet failed to call
the technicians who had the receptive environment ready for Transnet's
applications and data. These technicians could have enlightened the
court on the ripeness of the environment to which the information ought
to be migrated to.
[102] In these circumstances, Gijima's obligation to render the
Disengagement Services could not arise in the absence of reciprocal
performance by Transnet. The MSA expressly contemplates that
disengagement would be guided by a transition plan (to be provided by
Transnet) and aligned to the technical requirements of a successor
service provider. FA9 and PRM3 are not transition plans, and Transnet
has failed to deliver such a plan. That failure prevented disengagement
from proceeding and rendered Gijima's performance impossible.
[103] The principle is no stranger in law: where one party has not
performed what is required of it, it cannot demand performance from the
other.5 Transnet's non-performance, therefore, entitles Gijima to invoke
the exceptio non adimpleti contractus, and to resist any claim for specific
performance until Transnet has fulfilled its own obligations under the
MSA.
5 See Nulliah v Harper 1930 AD 141 152-153; Koenig v Johnson & Co Ltd 1935 AD 262 276; Millman
v Goosen 1975 3 SA 141 (0) 142; RM Van de Ghinste & Co (Pty) Ltdv Van de Ghinste 1980 I SA 250
(C) 252.
41
Active Directory:
[104] At the time of the termination of the Partial Terminated Services
in April 2024 to August 2024, the Active Directory and SharePoint
services (which were part of the Collaboration Services tower and which
reside in the Wintel environment) were transferred to the Retained
Services.
(105] Mr Munyai explained that the Active Directory is a security service
that controls user access to Transnet's information communication
technology services and is part of the Wintel environment.
[106] The evidence of Mr Munyai and of Mr Bhat traversed an event
that happened in July 2021, when there was a ransomware attack on
Transnet's IT systems servicing the ports, bringing both Transnet and
port operations to a near standstill. Gijima, together with Transnet and
Microsoft, was able to isolate the Active Directory where the breach had
occurred through the ports system, which is not part of Gijima's
responsibility. They managed to keep the mainframe and SAP
(midrange) portions isolated from the breach. Gijima then re-built the
Active Directory as instructed by Transnet and Microsoft.
[107] One of the lessons learned was that sharing high-level access to
the security system with others was dangerous. Gijima resolved from
that time onwards, under the guidance of Microsoft, not to share the
highest levels of security control through Active Directory (known as
42
Domain Administrator, which is the TO access) with anyone else so that
it alone could control that level of access, which permits changes to be
made to the system. If that access is shared, it could become
complicated to prevent others with such access from compromising the
system for which Gijima is responsible. Since 2021, Gijima alone has
controlled TO access (the highest level of access to the Active Directory).
[108] Mr Samuel explained that he would not permit sharing of TO
access without getting an indemnity from Trans net for these reasons and
that although Gijima's attorneys had prepared a second addendum to
the MSA to record such an indemnity following a workshop in April 2025
(in which a discussion over TO access and the active directory had been
discussed), Transnet never furnished the indemnity and as such, TO
access was not given to Transnet.
[109] In his testimony, Mr Munyai indicated that he was happy on behalf
of Transnet to give the indemnity to Gijima, but once again, there seems
to have been a breakdown in the execution of this agreement, which
would have eliminated this obstacle, at least, had the addendum with the
indemnity in it been executed by Transnet. Gijima's attorneys had
prepared that addendum and sent it to Transnet's attorneys following the
meeting at which it had been agreed upon between the parties. This
letter is dated 7 April 2025. For some reason, Transnet never provided
the signed agreement recording this indemnity, known as the second
addendum.
43
[11 OJ The breakdown seems to have resulted from the parties' inability
to achieve a limited transfer of the Wintel environment from Gijima to
Transnet, as per a sale agreement they had negotiated. Still, those
negotiations had also broken down because Transnet seemed to think
that it was purchasing both the Wintel and SAP environments for some
R26 million (Gijima's opening price was R30 million). Still, Gijima had
never actually offered the SAP environment as part of that sale; it had
only offered the Wintel environment and made it explicit in its proposal
to Transnet that the items being offered for sale were the non-SAP items.
This is evident from Annexure "AA?" to the founding affidavit.
[111] This detail seems to have escaped Mr Munyai, who proposed to
his Chief Executive Officer, recommending that Transnet spend R26
million to acquire the infrastructure that Gijima had offered. Mr Munyai,
on behalf of Transnet, believed that the R26 million offer covered both
the Wintel and the midrange. On the other hand, Gijima, through its
Group Chief Executive, Mr Nxumalo, made clear that it was only selling
the non-SAP environment. This misunderstanding resulted in a failure
to reach an agreement between the parties.
[112] There was no suggestion of the mainframe ever being included in
this sale. Transnet conceded this through its own actions. Transnet has
gone out late in the day (the tender was issued 2 days before the end of
the initial term of the MSA) to buy itself its own mainframe, and as at the
date of the oral evidence being heard, the confinement tender to procure
a mainframe from either BCX or IT Agility had not been approved.
44
According to Mr Munyai's evidence, the procurement of the mainframe
is still in process.
[113] Transnet also issued a data centre co-location tender to house its
new mainframe in another data centre. In the introduction to that data
centre co-location tender, it is recorded that Transnet has performed an
audit and revealed that once it terminates the services with Gijima, it
would not have the capacity to render mainframe services itself. This,
along with the evidence of Mr Bhat, confirms that Transnet was not ready
with the mainframe infrastructure or its equivalent in the Cloud as of the
application's launch date in May 2025.
[114] The conclusion of unreadiness on the part of Transnet is
underlined by its proposed purchases of space in a co-location data
centre to house its new mainframe and its confinement to procure a new
mainframe (for R71 million) only in May-June 2025. Mr Munyai tried to
explain this away by saying that although Microsoft was ready to take
over the services for Transnet immediately, the purchase of the
mainframe was a "backup" just in case the mainframe services by
Microsoft were compromised at any point, but this explanation does not
bear scrutiny.
[115] This explanation -that the mainframe was being procured
merely as a backup despite Microsoft allegedly being ready to assume
the services -was clearly an afterthought. Mr Munyai offered it in an
45
attempt to avoid the inescapable conclusion that Transnet was not, in
fact, ready.
[116] But the explanation does not withstand scrutiny: it is internally
inconsistent, commercially irrational, and belied by the timing of the
confinement tender, which was only initiated in the final weeks of the
contract. The mainframe co-location document issued by Transnet
clarifies that the mainframe is intended for providing services in an active
production environment, not for disaster recovery functions, which would
be outsourced as Gijima has done to other disaster recovery locations
and infrastructure.
[117] I find it difficult to comprehend why Transnet would proceed to
purchase a new mainframe when Mr Munyai insists that no mainframe
is needed for disengagement and transition. It is peculiar that the new
mainframe is purchased for millions of rands, only to be utilised as a
backup.
[118] Had there been a proper transition plan, which should have
commenced early in January 2023, and careful thinking through by
Transnet of what was required to transition the data centre and hosting
services well in advance of the termination of the Master Services
Agreement, this infrastructure would and should have been in place.
46
[119] It was not, and the conclusion of Transnet's not having the
capacity to take transfer of the services is inescapable on the
probabilities.
Second point of referral: 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 Gijima.
[120] There appears to have been a significant difference in
understanding and interpretation of the MSA, resulting in this
divergence. It was pointed out to Mr Munyai in his cross-examination
that, in fact, the MSA does, expressly, place an obligation on Transnet
to provide a transition plan. The MSA is expressed to be inclusive of its
attachments (clause 2.3.1 of the MSA). One of the attachments is the
initial high level disengagement plan that was drawn by Gijima and
submitted to Transnet in August 2020 as Attachment "X 1" (Annexure
FA2.4 to the foudning affidavit) to that agreement which disengagement
plan is signed by Mr Munyai on 28 August 2023, some five days after
Transnet sent the initial notice of termination to Gijima on 23 August
2023.
[ 121] Attachment "X 1" provides in express terms that: ''The main
purpose of the Disengagement Plan is to govern the Disengagement
47
between Gijima and Transnet based on the Transition plan provided by
Transnet or the newly appointed Service Provider."
[ 122] Attachment "X 1" then goes on to state the "goals and objectives
of the Projecf' which are "delivery of the Disengagement plan which will
be aligned to Transnet's or the new Service Provider Transition Plan."
[123] In the "Disengagement Approach" section of Item 14 in
Attachment X1, the "main stages" of the disengagement framework are
identified. Therein, it provides that the actual Disengagement Project
Plan with actual dates will be "dependent on the Transnet or the newly
appointed incumbent Transition Plan and actual parties involved."
[124] These provisions, all drawn from Attachment "X1", which is
incorporated into the MSA and signed by Mr Munyai himself, make it
clear that the disengagement process was always to be governed by a
transition plan to be provided by Transnet or its successor. The timeline
for disengagement was expressly made dependent on the existence and
content of that transition plan. Transnet's failure to produce such a plan,
or to demonstrate that its successor had one in place, frustrates the very
mechanism by which disengagement was to be implemented. It cannot
now rely on Gijima's alleged non-compliance when the precondition to
disengagement, its own transition plan, was not fulfilled.
48
[125] Where Transnet elects, as it has done in this case, to upgrade or,
in Mr Munyai's words, "modernise" its infrastructure, Attachment "X 1"
expressly identifies specific activities that fall outside the scope of the
disengagement project. Item 9 of Attachment "X 1" goes on to list items
that are "specifically out of scope of the disengagement projecf'. It lists
the following:
a. "Any modification or update to existing designs or architectural
artefacts relating to changes required to fit the Transnet or newly
appointed Service Provider delivery models";
b. "Any changes required to existing infrastructure, including
additional actions required to connect to existing infrastructure to
facilitate data replication or migration as part of Transnet or the
newly appointed Service Provider transition of the towers"; and
c. "Any transition services or migrations to new platforms".
[126] These exclusions make plain that if Transnet elected to
modernise or upgrade its IT infrastructure, whether through new delivery
models, connection to alternative infrastructure, or migration to new
platforms, such activities would fall outside the scope of the
disengagement project as defined in Attachment "X1".
[127] Gijima was never contractually obliged to support a transition of
this nature, and any delay or failure associated with Transnet's
modernisation efforts cannot be attributed to Gijima.
49
[128] Transnet's attempt to retroactively impose obligations on Gijima
in respect of matters that were expressly excluded from scope is both
untenable and contrary to the agreed terms of the MSA and the
provisions of the signed 2020 / 2023 disengagement plan, as testified to
by Mr Munyai at the commencement of his cross-examination.
[129] Mr Munyai's signature and that of another Transnet official appear
on this disengagement plan under wording that confirms that the parties
were bound thereto.
[130] In sum, the MSA makes it clear that the disengagement plan
depends on the transition plan provided by Transnet. Transnet's
insistence that Gijima disengage from Transnet without a necessary
transition plan was mistaken. Gijima's demand for Transnet to first
provide a transition plan was both contractually well-founded and
necessary. Transnet failed to appreciate what is required for such a
transition.
[131] Gijima, by contrast, having transitioned from T-Systems to itself
and with employees who have experienced various transitions
throughout their employment histories, has a much better understanding
of how such transitions and data migrations are achieved in
organisations of this scale. This was evident, especially from Mr Willie's
testimony.
50
[132] Foremost amongst these appreciations was the need to produce
a transition plan through a process of in-depth discussion and
negotiation. Deep-dive workshops would enable each technical step to
be planned and executed through an ongoing process of dialogue and
cooperation, achieving the multi-faceted task of disengagement
responsibly and safely.
[133] Even the MSA's definition of "term" (clause 139 in the definitions)
recognises the organic nature of disengagement by recording that the
term of the agreement is inclusive of the period of disengagement (which
in itself is left to agreement between the parties as is the disengagement
fee, recognising that agreement would need to be reached at the end of
the MSA and could not be prescribed at the outset by the drafters of the
agreement) and the fact that the definition of "term" goes even beyond
the disengagement period to specify that the agreement only ends when
the services have been successfully transferred. Transnet did not
appreciate this open-ended nature of the disengagement process in its
dealings with Gijima.
[134] Attachment "X1" demonstrates beyond dispute that the transition
was Transnet's responsibility to initiate and govern, and that
disengagement was contingent upon it.
[135] In these circumstances, Transnet's attempt to reframe its
obligation (as it has done throughout the course of this litigation) as
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Gijima's sole responsibility is inconsistent with the express wording of
the contract it seeks to enforce, contrary to the evidence. In essence,
Transnet tacitly conceded through its actions that it had to prepare a
Transition Plan, contrary to common sense.
[136] One cannot ignore the fact that considerable effort was made to
advance the transition by both parties. The fundamental failure of
understanding by Transnet regarding what was required of the incoming
service provider, which Transnet has now become, placed a spoke in
the wheel of the efforts of both parties. Unfortunately, Transnet's failure
to fully comprehend this resulted in the launch of premature and
precipitous litigation, which only further frustrated the objective of
disengagement, adding an additional layer of legal costs and delays.
[137] To correctly interpret the MSA and prevent service interruptions,
Transnet, as the incoming service provider, was obliged to follow the T
Systems process (excluding redundant aspects such as human
resources) if it wanted to take over from Gijima.
Third point of referral: in the alternative to the section point of referral:
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 Gijima.
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[138] Gijima's original position was that there existed a tacit term to the
effect that, to avoid interruption of services, whatever the incoming
service provider had to do when taking over from Transnet's previous
service provider in 2020, a subsequent incoming service provider would
likewise be required to do when taking over from Gijima.
[139] On behalf of Gijima, it is submitted that this was based on the
understanding that the MSA did not expressly regulate certain aspects
of the disengagement process, and that such a term was necessary to
give the contract business efficacy.
[140] However, the position has changed considering the analysis of
Attachment "X1" to the MSA. Attachment "X1" forms part of the
contractual documentation. It expressly regulates the disengagement
process, clarifying that disengagement must align with and depend on a
transition plan provided by Transnet or a newly appointed service
provider. This leaves no "gap" in the agreement that could justify the
importation of a tacit term.
[141} Given that Attachment "X1" expressly deals with the sequencing,
dependencies, and objectives of disengagement, including its alignment
to the incoming provider's transition plan, the circumstances
contemplated by the initially pleaded tacit term are in fact already
covered by the express provisions of the contract.
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[142] I agree with Gijima's submissions that, on a proper interpretation,
there is no need and no legal basis for the Court to imply such a term.
[143] Put differently, the express wording therefore occupies the very
field that the tacit term would otherwise have had to cover. In law and in
logic, there is no room for a tacit term where the express terms already
address the point. In consequence, the resolution of Issue 3 is not that
such a tacit term should be implied, but that the express provisions of
the MSA and Attachment "X1" are decisive and conclusive on this point.
[144] The effect of this conclusion is that the matter must be
approached based on the express contractual framework, which places
the onus on Transnet to provide a transition plan and coordinate
disengagement accordingly. The absence of such a plan, particularly in
relation to the mainframe, is thus fatal to Transnet's case.
[145] That conclusion has direct implications for the fourth referral
point. If disengagement was expressly made dependent on Transnet
first producing a transition plan, and if Transnet failed to do so, then it
was not in a position to demand performance from Gijima.
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[146] This is the very situation in which the exceptio non adimpleti
contractus finds application: a party who has not performed its own
reciprocal obligation cannot compel performance from the other.6
Fourth point of referral: Whether the exceptio non adimpleti contractus finds
application herein.
[147] Having discussed the first, second and third referral points in the
paragraphs above, it follows that Transnet, having failed to discharge its
own contractual obligation, was not entitled to demand disengagement
from Gijima.
[148] The exceptio applies squarely. Transnet's claim for specific
performance of the disengagement obligation must therefore fail on this
ground alone.
[149] The application of the exceptio and the defence of impossibility
are mutually reinforcing in this matter. Transnet's failure to provide the
contractually required transition plan was both a breach of a reciprocal
obligation (engaging the exceptio) and the operative cause of the
impossibility of performance by Gijima.
6 BK Tooling (Edms) Bpk v Scope Precision Engineering (Edms) Bpk 1979 (]) SA 391 (A) at paragraph
418B; Man Truck and Bus (SA) (Pty) Ltd v Darby! Limited t/a Darby/ Transport Products and Busaf
2004 (5) SA 226 (SCA) at paragraph 12.
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[150] The very condition precedent to disengagement was absent, and
that absence was entirely of Transnet's making. Whether viewed
through the lens of reciprocal obligations or through the impossibility
doctrine, the conclusion is the same: Transnet could not compel
performance from Gijima within the timelines it demanded.
Fifth point of referral: Whether annexure "FA 12" to the founding affidavit
constitutes an agreement between the parties.
[151] FA12 cannot, on any sensible interpretation, be regarded as a
contract. Its own form and content make this clear:
a. It is expressly marked "Draft" - signalling that it is a working
document still under discussion and subject to revision.
b. It is unsigned by either Gijima or Transnet. While signature is not
a strict legal requirement for the formation of a contract, the
absence of signature here is significant when coupled with the
"draft" designation and the lack of any other evidence that the
parties agreed to be bound by its terms.
c. It does not record any executable obligations: - FA12 contains no
operative clauses, binding promises, or mutual undertakings.
Instead, it sets out what it expressly calls "Action Items",
preparatory and indicative steps contemplated in the early stages
of disengagement discussions.
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d. Its nature is preparatory, not contractual: FA12 is plainly a
planning or working document, capturing preliminary proposals
for how the parties might approach disengagement. Such a
document may guide operational cooperation, but it does not,
without more, give rise to enforceable rights and obligations.
e. Subsequent updates confirm its non-binding nature: To
demonstrate further that FA12 was a working document rather
than a concluded agreement, Gijima subsequently updated it.
That updated version appears as annexure "AA 1 O" to the
answering affidavit, reinforcing the fact that FA 12 was never
intended to be final or binding.
[152] To elevate FA12 to the status of a binding agreement would
require reading into it terms that are simply not there. This would not only
contravene basic principles of contract formation but would be wholly
inconsistent with the way the document is framed, labelled, and treated
by the parties themselves.
[153] In these circumstances, FA12 is self-evidently not a contract and
cannot form the basis of any enforceable claim or defence.
Sixth point of referral: Whether Transnet has the technical ability and
infrastructure to take over the IT services from Gijima:
57
[154] The finding, as stated above under the discussion of the first
referral issue, that Transnet lacked the necessary infrastructure by 30
June 2025, is directly relevant here.
[155] The answer to the sixth issue is thus clear. Transnet did not, as
at the date of launch, by 30 June 2025, or even at the hearing of the oral
evidence, possess the technical capability, infrastructure, or skilled
personnel to assume the services. The absence of a transition plan, the
lack of additional ICT resources, and the admitted dependence on third
party procurement all point to the same conclusion.
Conclusion:
[156] Upon considering all the evidence, it is clear that, at the time of
launching this application, Transnet was not ready to receive the
disengagement services it now seeks to compel.
[157) It had no transition plan, no technical readiness, and no clarity on
how the most critical component (the mainframe) was to be migrated.
Indeed, Mr Baht explicitly conceded that even the initial assessment
necessary to determine whether the mainframe could be moved had not
begun by the time of launch, nor was it complete by the time oral
evidence commenced.
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[158] The attempt to compel performance in the face of Trans net's own
material non-performance is not only without merit, but also
impermissible.
[159] The exceptio non adimpleti contractus entitles Gijima to withhold
performance until Transnet has fulfilled its reciprocal obligations under
the MSA. Chief among those is the provision of a viable transition plan.
That obligation has not been met. In its absence, it was and remains
impossible for Gijima to perform.
[160] Transnet's decision to approach this court prematurely and
urgently resulted in extensive litigation. Mr Baht's witness statement was
deposed to on 11 July 2025. In his statement, Mr Baht made it clear that
Microsoft, as Transnet's transition partner, still had to conduct an
essential assessment and predicted it would take six to eight weeks.
Despite being aware of this crucial shortcoming, Transnet elected to
proceed with its case. As an afterthought, Transnet attempted to
introduce an amended notice of motion after five days of oral evidence.
The way Transnet elected to proceed constitutes recklessness in
prosecuting the application. This resulted in significant costs for Gijima.
There is no basis why Gijima should be left out of pocket.
[161] In the circumstances, the application stands to be dismissed with
costs, including the costs of two counsel on the attorney and client scale
on scale C.
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Order:
Consequently, I make the following order:
1. The application dismissed.
2. The applicant is to pay the costs of the application on the scale as between
attorney and client, including the costs of two counsel on the scale as
between attorney and client.
Gauteng Division, Pretoria
Heard on
For the Applicant
Instructed by
For the Respondent
Instructed by:
Date of Judgment
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: 19 June 2025
21, 22, 23, 24 and 25 July 2025
15 August 2025
: Adv. I V Maleka SC with Adv Z Cornelissen
: Mkhabela Huntly Attorneys Incorporated
: Adv L J Morison SC with Adv M Phukubje
: Nicqui Galaktiou Incorporated
: 16 October 2025