Department of Transport and Others v Tasima (Pty) Limited; Tasima (Pty) Limited and Others v Road Traffic Management Corporation and Others (CCT 182/17; CCT 240/17) [2018] ZACC 21; 2018 (9) BCLR 1067 (CC) (17 July 2018)

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[2018] ZACC 21
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Department of Transport and Others v Tasima (Pty) Limited; Tasima (Pty) Limited and Others v Road Traffic Management Corporation and Others (CCT 182/17; CCT 240/17) [2018] ZACC 21; 2018 (9) BCLR 1067 (CC) (17 July 2018)

Links to summary

Heads of arguments

CONSTITUTIONAL
COURT OF SOUTH AFRICA
Cases
CCT 182/17 and CCT 240/17
CCT
182/17
In the matter
between:
DEPARTMENT OF
TRANSPORT
First

Applicant
DIRECTOR-GENERAL:
DEPARTMENT OF
TRANSPORT
Second

Applicant
MINISTER OF
TRANSPORT
Third

Applicant
WERNER EDUARD
KOEKMOER
Fourth

Applicant
ROAD TRAFFIC
MANAGEMENT
CORPORATION
Fifth

Applicant
COLLINS
LETSOALO
Sixth

Applicant
KEVIN JOSHUA
KARA-VALA
Seventh

Applicant
MORNÉ
GERBER
Eighth
Applicant
GILBERTO
MARTINS
Ninth

Applicant
CHRIS
HLABISA
Tenth
Applicant
MAKHOSINI
MSIBI
Eleventh

Applicant
and
TASIMA (PTY)
LIMITED
Respondent
CCT
240/17
In the matter
between:
TASIMA (PTY)
LIMITED
First

Applicant
DENESHKUMAR
NARAN
Second

Applicant
FANNIE LYNEN
MAHLANGU
Third
Applicant
ZUKO MZIWOXOLO
VABAZA
Fourth

Applicant
and
ROAD TRAFFIC
MANAGEMENT CORPORATION
First

Respondent
DEPARTMENT OF
TRANSPORT
Second

Respondent
MINISTER OF
TRANSPORT
Third

Respondent
MINISTER OF
POLICE
Fourth

Respondent
DIRECTOR-GENERAL:
DEPARTMENT OF
TRANSPORT
Fifth

Respondent
KEVIN JOSHUA
KARA-VALA
Sixth

Respondent
MORNÉ
GERBER
Seventh

Respondent
CHRIS
HLABISA
Eighth

Respondent
MAKHOSINI
MSIBI
Ninth

Respondent
Neutral citation:
Department of Transport and Others v Tasima (Pty) Limited; Tasima
(Pty) Limited and Others v Road Traffic Management Corporation
and Others
[2018] ZACC 21
Coram:
Zondo DCJ, Dlodlo AJ, Froneman J, Goliath AJ,
Jafta J, Khampepe J, Madlanga J, Petse AJ
and
Theron J.
Judgment:
Petse AJ (unanimous)
Heard on:
8
March 2018
Decided on:
17 July 2018
Summary:
Superior Courts Act 10 of 2013
—
Section 18
—
operation of order after final determination
Interim orders —
operation of order after final determination
Mootness —
interests of justice — no discrete legal issue of public
importance
ORDER
On appeal from the
High Court of South Africa, Gauteng Division, Pretoria.
Under CCT 182/17
(Department of Transport and Others v Tasima (Pty) Limited):
1. Leave to appeal is granted.
2. The appeal is upheld.
3. The order of the High Court is set aside and substituted with the
following:
“The
application is dismissed with costs, including the costs of two
counsel.”
4. The costs orders of the Supreme Court of Appeal and the High Court
in the applicants’ applications for leave to appeal
in those
courts are set aside and replaced with an order that the costs of the
applications, shall be borne by the respondent including
the costs of
two counsel where employed.
5. The respondent is ordered to pay the applicants’ costs in
this Court, including the costs of two counsel.
Under CCT 240/17
(Tasima (Pty) Limited and Others v Road Traffic Management
Corporation and Others):
1. The application for leave to appeal is dismissed.
2. The applicants are ordered to pay the costs of the application
jointly and severally, the one paying the others to be absolved,
such
costs to include the costs of two counsel.
JUDGMENT
PETSE AJ
(Zondo DCJ, Dlodlo AJ, Froneman J, Goliath AJ,
Jafta J, Khampepe J, Madlanga J
and Theron J
concurring):
Introduction
[1]
This composite judgment deals with two interrelated
applications for leave to appeal under cases CCT 182/17 and 240/17
that were
heard together on 8 March 2018.  Both have
their genesis in the decision of this Court in
Tasima 1
delivered on 9 November 2018.
[1]
[2]
Although these applications are both dealt with in a composite
judgment, it will, however, conduce to clarity if, at the appropriate

stage, each application is considered and determined separately in
the light of the facts peculiar to each.
[3]
To say that the parties to these applications have not
flinched from litigating against each other would be an
understatement.
This is the umpteenth time that they have, for
several years, locked horns in protracted litigation, commencing in
the High Court,
[2]
thereafter proceeding to the Supreme Court of Appeal and, ultimately,
to this Court.  And if counsel are to be taken at their
word for
what they said at the hearing of these matters in this Court, the end
to this sorry tale of unbridled proliferation of
litigation is not
yet in sight.
[4]
These applications raise issues of constitutional importance
that relate to the interpretation of the order of this Court in
Tasima I
.  In particular, they pertinently raise the
questions whether: (i) the Department of Transport has breached its
constitutional
obligations in terms of section 165(4) of the
Constitution which, amongst others, enjoins organs of state to assist
and protect
the courts to ensure their independence, impartiality,
dignity, accessibility and effectiveness; (ii) an interim order
granted
pending the outcome of an appeal is immune to and can exist
independently of the final decision made on appeal; and (iii) an
order
granted in terms of
section 18(3)
of the
Superior Courts
Act
[3]
is conditional upon the outcome of the matter taken on appeal.
[5]
Although the parties have confined themselves to
section
18(3)
, it is, for reasons that will become apparent later, necessary
to quote
section 18
in its entirety.  It provides:
“(1) Subject to
subsections
(2)
and
(3)
,
and unless the court under exceptional circumstances orders
otherwise, the operation and execution of a decision which is the

subject of an application for leave to appeal or of an appeal, is
suspended pending the decision of the application or appeal.
(2) Subject to
subsection
(3)
, unless the court under exceptional
circumstances orders otherwise, the operation and execution of a
decision that is an interlocutory
order not having the effect of a
final judgment, which is the subject of an application for leave to
appeal or of an appeal, is
not suspended pending the decision of the
application or appeal.
(3) A court may only order otherwise as contemplated in
subsection
(1)
or
(2)
,
if the party who applied to the court to order otherwise, in addition
proves on a balance of probabilities that he or she will
suffer
irreparable harm if the court does not so order and that the other
party will not suffer irreparable harm if the court so
orders.
(4) If a court orders otherwise, as contemplated in
subsection
(1)
—
(i)
the court must immediately record its reasons for doing so;
(ii)
the aggrieved party has an automatic right of appeal to the next
highest court;
(iii)
the court hearing such an appeal must deal with it as a matter of
extreme urgency; and
(iv)
such order will be automatically suspended, pending the outcome of
such appeal.
(5) For the purposes of
subsections
(1)
and
(2)
,
a decision becomes the subject of an application for leave to appeal
or of an appeal, as soon as an application for leave to appeal
or a
notice of appeal is lodged with the registrar in terms of the rules.”
Parties
[6]
The applicants under case CCT 182/17 are the Department of
Transport (DoT), its Director-General, some of its officials, the
Minister
of Transport, the Road Traffic Management Corporation
(RTMC), and its former acting and current Chief Executive
Officers
(CEOs).  There is an identity of interest amongst all
of the applicants.  For convenience, I refer to these applicants

collectively as the “State parties”.  The
respondent is Tasima (Pty) Limited (Tasima).
[7]
Under case CCT 240/17, Tasima and its three directors are the
applicants.  And the State parties under CCT 182/17 feature as

the respondents in this case.  The DoT, the RTMC and Tasima are
the main characters in both applications.
[8]
The State parties under case CCT 182/17 seek leave to appeal
against the judgment and order of the High Court of South Africa,
Gauteng
Division, Pretoria (High Court).  The High Court (per
Potterill J) ordered the State parties, amongst others, (i) to pay a

sum of R30 144 947.63 to Tasima in settlement of payment
certificate 113 (presented to the applicants on 8 November
2016)
which fell due for payment on 29 November 2016; and (ii) to approve
all payment requisitions which were submitted for approval
before
9 November 2016.
[4]
The High Court subsequently dismissed the State parties’
application for leave to appeal against that order.
A further
application for leave to appeal made to the Supreme Court of Appeal
suffered a similar fate.  The State parties
argue that the
High Court should not have granted this order when the
underlying cause of action had fallen away after this
Court, in
Tasima I
, upheld the High Court’s declaration to
the effect that the extension of the underlying contract between the
parties was
constitutionally invalid from 23 June 2015.
[9]
Tasima opposes the application for leave to appeal.  It,
in essence, contends that the two court orders in issue, granted by

Basson J in April and May 2016, remained operative until 9 November
2016 when this Court delivered its judgment in
Tasima I
.
Accordingly, Tasima argues that the State parties were obliged
to comply with these orders during the interim period for
as long as
they remained extant.
[10]
With
respect to case CCT 240/17, the applicants seek leave to appeal
against the judgment and order of the High Court.  The
High
Court (per Tuchten J) ordered the applicants to: (i) vacate the
premises situated at 13 Howick Close, Waterfall Park, Bekker
Road,
Midrand housing the electronic National Traffic Information System
(eNaTIS system); (ii) hand over the control of the
eNaTIS system
inclusive of its access codes, keys and source codes to the RTMC; and
(iii) pay the costs occasioned by the application
including the costs
of two counsel.
[11]
The
State parties oppose Tasima’s application.  First, they
contend that the appeal will have no practical effect because
it is
moot.  Second, they argue that it is not in the interests of
justice to hear the appeal.  In addition, the State
parties
argue that the declaratory relief sought by Tasima is precluded by
virtue of the
exceptio rei judicatae vel litis finitae
or its
attenuated form commonly known as issue estoppel.  The
exceptio
rei judicata
or issue estoppel is a defence that can be raised by
a defendant in a later suit against a party who is demanding the same
thing
on the same grounds.
[5]
So far as the defence of issue estoppel is concerned, it is
described as follows in
Boshoff
:
“[T]he decision set up as a res judicata necessarily involves a
judicial determination of some question of law or issue of
fact, in
the sense that the decision could not have been legitimately or
rationally pronounced by the tribunal without at the same
time, and
in the same breath, so to speak, determining that question or issue
in a particular way, such determination, though not
declared on the
face of the recorded decision, is deemed to constitute an integral
part of it as effectively as if it had been
made so in express
terms.”
[6]
Factual
background
[12]
Much
of what is relevant in this regard overlaps with most of the factual
narrative set out in
Tasima I
.  For this reason, I
propose to borrow liberally from that factual narrative to the extent
that those facts are relevant for
the present purposes.
[13]
During
July 2001, the DoT awarded a tender to Tasima for the provision of
services in relation to what later became known as the
eNaTIS
system.  Through this system, the DoT was linked with the
various licensing agencies throughout the country, manufacturers
of
motor vehicles, banks as financiers of the purchase of motor vehicles
and the South African Police Service.  In addition,
the DoT
regulated and administered the licensing of vehicles, learner
driver’s and driver’s licences, tests for roadworthiness

of vehicles and generally, the administration of the road-traffic
legislation.
[14]
On
3 December 2001 and pursuant to the award of the tender, the DoT and
Tasima concluded a Turnkey agreement for the operation of
the eNaTIS
system for a five-year period commencing on 1 June 2004 and ending on
31 May 2007.  The agreement further provided
that, upon its
termination, Tasima would hand over the operation of the eNaTIS
system to the DoT.  To this end, the DoT was
required, inter
alia, to address a written request to Tasima within 90 days from the
date of termination.
[15]
But,
upon termination of the agreement, the DoT did not invoke this
contractual provision.  Rather, Tasima made a written request

that the agreement be extended for a further five-year period.
This request was turned down by the DoT’s erstwhile

Director-General who also intimated that the DoT instead sought to
take over the operation of the eNaTIS system.  Upon its

termination by effluxion of time, the agreement was kept alive on a
month-to-month basis.  Although this was meant to be a

short-term arrangement, it nevertheless continued until April 2010.
During April 2010, Tasima, once more, requested
the DoT to
extend the duration of the expired agreement.  The then
Director-General, Mr Mahlalela, addressed correspondence
to the then
acting CEO of the RTMC, seeking the latter’s view in regard to
Tasima’s request.  In response, the
acting CEO expressed
strong objection to the request, describing the interim arrangement
as “bad” for the government.
He advised that the
controversial interim arrangement be immediately terminated.
[16]
In
May 2010, the agreement was extended for a further period of five
years from 1 May 2010 to 30 April 2015 by the then Director-General,

Mr Mahlalela, despite strong opposition by Mr Collins Letsoalo who
was then acting as CEO of the RTMC which was established, inter
alia,
to operate the eNaTIS system.  On 21 May 2010, Mr
Letsoalo addressed a letter to Tasima imploring the latter
not to
rely on the purported approval of its request for an extension of the
agreement.  By letter dated 24 May 2010,
Tasima informed
the acting CEO that, unless it received communication from either the
Director-General or the Minister to the contrary,
it would plan and
operate the eNaTIS system for the next five years in accordance with
the extension agreement.
[17]
The
Auditor-General also entered the fray and queried the extension
agreement, describing it as irregular for want of compliance
with
procurement prescripts.  This prompted the Director-General to
initiate negotiations with Tasima with a view to terminate
the
invalid extension and for the transfer of the eNaTIS system to the
DoT.  These negotiations came to naught following Tasima’s

failure to attend follow-up meetings with the DoT.  All manner
of attempts by the DoT to have the extension agreement terminated

because it was invalidly concluded were strenuously resisted by
Tasima.  The DoT persisted in its stance that the extension
of
the agreement was in breach of section 217 of the Constitution,
[7]
section 38 of the Public Finance Management Act,
[8]
the Treasury regulations
[9]
and had also been disapproved of by Parliament’s Standing
Committee on Public Accounts
[10]
for the same reasons.   Upon realising that the DoT was
unrelenting in its resolve to terminate the extension agreement,

Tasima, relying squarely on the dispute resolution provisions of the
Turnkey agreement, resorted to litigation.  It instituted
an
urgent application in the High Court in which it sought an order
compelling the DoT to comply with its contractual obligations
in
terms of the extension agreement pending the finalisation of
arbitration proceedings that Tasima had threatened to institute
in
order to resolve the impasse.  Despite opposition by the DoT, an
interim order was granted by Teffo J which was subsequently
confirmed
by Mabuse J in the High Court.  No arbitration proceedings
were instituted by Tasima and yet the order issued
by Mabuse J was
kept alive and consequential relief based on that order was granted
in a series of court orders made in the High
Court in favour of
Tasima.
[18]
In
March 2015, Tasima instituted yet another application in which it,
inter alia, sought to have the DoT and its various officials
held to
be in contempt of the several court orders that enforced the
extension agreement.  The DoT not only opposed this application

but also filed a counter-application in which it sought to have the
extension agreement declared void
ab initio
(from its
beginning) by virtue of its constitutional invalidity.
[19]
In
due course both Tasima’s 2015 application and the DoT’s
counter-application served before Hughes J who, in the fullness
of
time, dismissed the main application and granted the
counter-application thereby declaring the extension agreement void
ab
initio
and setting it aside from 23 June 2015.  However, on
appeal by Tasima, the Supreme Court of Appeal set aside the order of
the High Court.  Instead, the Supreme Court of Appeal held that
Tasima had established the charge of contempt on the part of
certain
officials of the DoT and the RTMC.  The Supreme Court of
Appeal emphasised that in a constitutional democracy
founded on the
rule of law, court orders must be complied with by private citizens
and the State alike.
[11]
That the extension agreement was tainted with illegality, held
the Supreme Court of Appeal, had no bearing on the relief
sought
by Tasima which was to compel compliance with court orders.  The
Supreme Court of Appeal refused to entertain the counter-application

on account of what it perceived to be an inordinate delay.  In
addition, the Supreme Court of Appeal held that it was not
open to
the DoT to rely on a collateral challenge to extricate itself from
the obligations imposed on it in terms of the various
court orders.
[20]
The
State parties then appealed against the judgment and orders of the
Supreme Court of Appeal to this Court.  They persisted
in
their quest to have the extension agreement reviewed and set aside
and declared void
ab initio
.  They also sought an order
for the immediate hand-over of the eNaTIS system to the RTMC.
Whilst judgment of this Court
in relation to the appeal of the State
parties was being awaited, Tasima again approached the High Court
seeking an order holding
the State parties in contempt of the various
High Court orders and also an order under
section 18(3)
of the
Superior Courts Act enforcing
the order of the Supreme Court of
Appeal pending the outcome of the appeal before this Court.  On
11 April 2016, Basson J
granted the relief sought by Tasima in terms
of a court order that has come to be known as the “Basson I
order”.
[21]
In
granting relief in favour of Tasima, Basson J, inter alia, said the
following:
“It is common cause that the agreement expired on 30 April
2015.  As per the provisions of Clause 26, the procedure
as set
out in Schedule 15 [of the Turnkey Agreement] became operative and
obliged the parties from 1 May 2015 to operate in terms
of the
transfer management provisions.
. . .
In summary: In terms of the various High Court orders, the DoT and
its officials were interdicted to take any steps to effect a

premature transfer of the eNaTIS System contrary to the provisions of
Schedule 15 . . .  none of the respondents may take
any steps .
. . to undermine the efficacy or implementation of the various High
Court orders and none of them can act contrary
to any of these
orders.”
[12]
In addition, Basson
J ordered the State parties to pay an amount of R176 000 000
within two days of the order and that
the management fee was to be
paid into an escrow account pending the outcome of the case then
pending before this Court.
In effect, the State parties were
directed to comply with all their contractual obligations under the
extension agreement.
[22]
Aggrieved
by the terms of the Basson I order, the State parties sought leave to
appeal against that order.  For its part, Tasima
opposed the
application and sought to have the order executed pending the outcome
of the appeal in
Tasima I
.  Motivated by practical
considerations and pragmatism the parties took a second order by
consent before Basson J in terms
of which the parties’ rights’
in the appeal were preserved whilst at the same time the State
parties agreed to pay
Tasima’s payment certificates and to
process its purchase requisitions in line with the terms of the
extension agreement.
This order has come to be known as the
“Basson II order”.  It bears mentioning that the
Basson II order
was preceded by an exchange of correspondence between
the parties.  Of particular relevance is a letter addressed by
the State
Attorney to Tasima on behalf of the State parties on
18 April 2016.  Its material part read:
“While we persist with our contention that our application for
leave to appeal suspends the operation of the order made by
Basson J
on 11 April 2016, the government respondents nevertheless intend
complying with it pending the outcome of their appeal
in the
Constitutional Court with full reservation of their rights, including
the right to recover in full from Tasima all of the
amounts now paid
pending the outcome of the Constitutional Court’s decision in
this matter, and strictly without prejudice
to their appeal before
the Constitutional Court and their appeal against Basson J’s
decision and order of last week.”
On 19 April 2016,
Tasima responded to the State Attorney’s letter in these terms:
“Without in any way waiving any of its rights or contentions in
the counter-application, our client is prepared to accept
payment and
performance by your clients, as tendered.  Our client, however,
reserves its right in relation to the R39 256 897
deduction
(‘the deducted amount’) effected by your client.
Also, whilst our client notes your clients’
reservation of
their rights, it, of course, does not acknowledge any right by your
clients to reclaim amounts paid to Tasima.”
[23]
The
terms of the Basson I order in relevant parts read thus:
“
1. It is ordered that—
1.1.
The first respondent pay
the amount of R176 683 116.70 to the applicant within two
days of this order, in satisfaction
of payment certificates 96 –
101;
1.2.
The management fee earned
by the applicant for services rendered must be paid into an escrow
account pending the final determination
of the respondents’
current appeal to the Constitutional Court;
1.3.
The tenth respondent, or
his lawful delegate, approve, alternatively process, all purchase
requisition orders set out in annexure
‘FM24’ to the
supporting affidavit which supports this application, within three
days from the date of this order;
1.4.
The fifth and eleventh
respondents afford the applicant the full benefit of the—
1.4.1.
Lease agreement entered
into by the fifth respondent in respect of the premises the applicant
currently occupies and operates the
eNaTIS system from, and
1.4.2.
LAN-Desk license until
the earlier of such license expiring or the applicant fully
transferring the electronic national traffic
information system;
1.5.
The first, second, sixth
and tenth respondents, within one day of the date of this Order,
afford the applicant full access, with
no restriction, to the eNaTIS
Data/Disaster Recovery Centre, situated at the State Information
Technology Agency building, 459
Tsitsa Street, Erasmuskloof,
Pretoria.
. . .
7. It is ordered in terms of
section 18(3)
of the
Superior Courts Act, 2013
—
7.1.
The Supreme Court of Appeal order operate and be executed to the
extent necessary until the final determination of the present
appeal
in respect of the Supreme Court of Appeal judgment in the
Constitutional Court.”
[24]
The
relevant parts of the Basson II order read:
“
Pending the determination
by the Constitutional Court of the proceedings in case CCT 5/2016,
the parties agree as follows,
without prejudice to their rights in
those proceedings:
1.
The
first respondent will pay the amount of R104 225 561.04 in
respect of payment certificates 102 and 106 as follows:
1.1.
That
portion thereof that constitutes the 10 – 15% management fee
reflected in each of the purchase requisitions which make
up the
total amount, will be paid into the escrow account established in
terms of paragraph 1.2 of the order of the Honourable
Madam Justice
Basson, dated 11 April 2016 under this case number;
1.2.
The
balance thereof shall be paid to the applicant by 10:00, Wednesday,
25 May 2016;
. . .
3.
The
applicant shall deliver to the project
/
programme
manager, as appointed by the first respondent in terms of the Turnkey
Agreement for the provision of the eNaTIS system
(Contract RT1194KA)
between the applicant and the first respondent, dated 3 December
2001, as subsequently amended and extended
(‘the agreement’),
in his official capacity, (currently, the tenth respondent), and
simultaneously copy to Mr Kevin
Kara-Vala, purchase requisition
orders (‘PRQs’) from time to time;
4.
the
project/programme manager or his lawfully appointed delegee must
deliver to the applicant processed PRQs within 5 working days
of
receipt of such PRQs;
5.
PRQs
must be processed by the project
/
programme
manager or his lawfully appointed delegee, currently Mr Kevin
Kara-Vala;
6.
payment
of payment certificates 107 and further will take place within 21
days of presentation thereof to the first respondent,
in the same
manner as provided for in 1 above.”
[25]
It
is necessary to emphasise that the introductory part of the Basson II
order which reads: “Pending the determination by
the
Constitutional Court of the proceedings in case CCT 5/2016, the
parties agree as follows, without prejudice to their rights
in those
proceedings” is of critical significance to the fate of the
application under case CCT 182/17.  I shall return
to this
aspect later.
[26]
As
already stated above, this Court delivered its judgment in
Tasima
I
on 9 November 2016 in terms of which the order of the High
Court declaring the extension agreement invalid with effect from
23
June 2015, previously set aside by the Supreme Court of Appeal on
appeal to it, was reinstated.  Tasima was then ordered
to hand
over the eNaTIS system to the RTMC within 30 days of the order in
Tasima I
.  This Court further directed that the handover
was to be
“conducted
in terms of the Migration Plan set out in schedule 18 of the Turnkey
Agreement” unless “an alternative
transfer management
plan is agreed to by the parties within 10 days of [its] order”.
[13]
[27]
It
is convenient from this point onwards to deal with the two
applications separately.  I shall commence with case CCT 182/17,

which is the application of the State parties against Tasima.
Department of Transpot and Others v Tasima (Pty) Limited
Pre-litigation history
[28]
On
8 November 2016, Tasima presented payment certificate 113 in the sum
of R30 144 947.53 to the DoT in line with various
court
orders culminating in the Basson I and II orders.  Payment
of this certificate was, in accordance with the provisions
of the
extension agreement, only due and payable on 29 November 2016, that
is 21 days after the presentation of the certificate.
The State
parties refused to pay payment certificate 113 and to process
requisition requests received after 9 November 2016
despite
demand by Tasima.
Litigation
history
High Court
[29]
On
27 December 2016, and relying squarely on the Basson I and II orders,
Tasima instituted an urgent application in the
High Court seeking an
order compelling the State parties to pay payment certificate 113 and
to approve certain payment requisitions
submitted by Tasima.
Tasima’s application, opposed by the State parties,
was partially successful.
[30]
In
granting an order for the relief foreshadowed in the preceding
paragraph, the High Court said the following:
“The crux of this matter is whether the Constitutional Court
order has set aside the Basson 1 and Basson 2 orders; consequently

can the DoT refuse payment for work done by Tasima between the
Supreme Court of Appeal judgment and the date of the order of the

Constitutional Court?  The question is also whether any order
given herein pre-judges the pending application before the
Constitutional Court.
The determination of this application depends upon a proper
interpretation of the order of the Constitutional Court to ascertain

the manifest purpose of the order.  The court's intention is to
be ascertained from the language of the order, which is to
be
interpreted on its terms and the court's reasons given as a whole.
In para 7 of the Basson 1 order it was inter alia ordered that the
Supreme Court of Appeal order operated and was to be executed
to the
extent necessary until the final determination of the appeal of the
Supreme Court of Appeal judgment in the Constitutional
Court.  In
Basson 2 it was inter alia ordered that pending the determination by
the Constitutional Court the project/programme
manager or his
lawfully appointed delegee must deliver to Tasima processed PRQs
within 5 working days of receipt of such PRQs.
The PRQs must be
processed by the project/programme manager or his lawfully appointed
delegee.  It was further ordered
that payment of payment
certificates 107 and further will take place ‘[w]ithin 21 days
of presentation thereof to the DoT.’
Tasima is in terms of the Basson 1 and 2 orders requesting that the
DoT make payment of payment certificate 113.  It is common
cause
that payment certificate 113 was submitted on 8 November 2016, a day
before the Constitutional Court judgment was handed
down.  It is
never denied by the DoT that all the work relating to certificate 113
was done before 8 November 2016 and that
all the underlying PRQs were
approved prior to 8 November 2016.  What is denied is Tasima’s
entitled to payment because
of the order of the Constitutional
Court.”
[14]
(Footnotes omitted.)
[31]
The
High Court declined to grant relief in relation to payment
requisitions in respect of services rendered after the date of the

judgment of this Court in
Tasima I
describing the judgment
date as “the guillotine date for the previous court orders”
and that the Basson I and II orders
so far as they related to work
done before 9 November 2016 fell outside the ambit of
Tasima I
.
[15]
Applications for
leave to appeal in the High Court and the Supreme Court of Appeal.
[32]
The
High Court dismissed the State parties’ application for leave
to appeal with costs.  A further application to the
Supreme
Court of Appeal suffered a similar fate, the latter Court concluded
that there were no reasonable prospects of success
and no other
compelling reason why an appeal should be heard.
Preliminary
issues
Jurisdiction
[33]
It
is trite that the question whether the jurisdiction of this Court is
engaged in any given case must be determined with reference
to
section 167(3)(b) of the Constitution.
[16]
[34]
The
State parties advance two bases in support of their quest for leave
to appeal in this Court which they assert engage its jurisdiction.

First, they argue that this application is founded on constitutional
issues.  Second, they submit that the application raises
an
arguable point of law of general public importance which deserves to
be considered by this Court.  I hasten to deal with
these
contentions in turn.
[35]
The
State parties, in essence, advance four issues of a constitutional
nature and/or arguable points of law of general public importance.

First, that the current dispute between the parties concerns the
proper interpretation of this Court’s order in
Tasima I
.
In particular, whether the declaration of invalidity of the extension
agreement took effect from 23 June 2015 in terms of
the now
reinstated High Court order or 9 November 2016 being the date of
Tasima I
.  This necessarily entails that this Court must
determine the effect of the operative date on the court orders
granted after
the date of the declaration of constitutional
invalidity of the extension agreement.
[36]
Second,
this application raises the question whether the refusal by the
State parties to comply with the Basson orders granted
after 23
June 2015, but before the date of judgment in
Tasima I
,
constitutes a violation of their constitutional obligation under
section 165(4) of the Constitution to assist and protect the
courts
to ensure their independence, impartiality, dignity, accountability
and effectiveness.  Third, whether a consensual
order granted
pending an appeal is immune to the appellate court’s
determination of the underlying cause of action or the
final outcome
of the appeal.  Fourth, whether an order granted under
section
18(3)
of the
Superior Courts Act is
conditional upon the final
determination of the dispute between the parties on appeal or whether
its legal force remains operative
and unaffected by such final
determination.
[37]
In
my judgement this matter engages this Court’s jurisdiction on
at least three bases.  First, as already indicated in
paragraph
1 above, it has its origin in
Tasima I
, a matter which
implicated section 217 of the Constitution.  In particular, in
the context of this application it raises the
question whether the
extension agreement which was declared constitutionally invalid on 23
June 2015 should be allowed to subsist
until 9 November 2016 –
being the date of the this Court’s judgment in
Tasima I
– despite this Court exercising its just and equitable
discretion under section 172(1)(b)(i)
[17]
against limiting the retrospective effect of the declaration of
invalidity.
[38]
Secondly,
this case implicates section 165(4) of the Constitution as explained
in paragraph 4 above.  Both these issues fall
squarely within
the scope of constitutional matters contemplated in section
167(3)(b)(i) of the Constitution.  In addition,
this Court also
enjoys jurisdiction by virtue of section 167(3)(b)(ii) which enjoins
this Court to consider “any other matter
that raises an
arguable point of law of general public importance”.
[18]
[39]
Furthermore,
the State parties argue that at its core this application concerns
the nature and powers of the courts.  In
Bannatyne
, this
Court said that any issue relating to the nature and ambit of the
powers of the High Court necessarily raises a constitutional

question.
[19]
Understandably, Tasima does not contest the fact that this
matter raises constitutional issues.
Leave to Appeal
[40]
As
already determined above, this application raises constitutional
issues of importance.  However, the fact that an application
for
leave to appeal raises a constitutional issue is not decisive of the
question whether leave should be granted.  It is
still necessary
to demonstrate that it is in the interests of justice that leave to
appeal should be granted, and for this Court
to hear the appeal.
In order for this Court to determine whether leave to appeal should
be granted, it must also have regard
to the prospects of success
[20]
and decide whether the interests of justice dictate that this Court
ought to hear the appeal.  When all is said and done,
the
question that arises ultimately in this case is whether the High
Court was correct in enforcing the Basson orders – regard
being
had to their sole purpose – some three months after the
delivery of this Court’s judgment in
Tasima I
.  The
State parties argue that it is in the interests of justice for this
Court to hear the appeal because the effect of the
High Court
judgment is that the extension agreement that was declared invalid
from 23 June 2015 has effectively been kept alive
beyond the date of
invalidity.
[41]
Once
again, Tasima does not contest that it is in the interests of justice
for this Court to hear the appeal.  On the prospects
of success,
the State parties assert that such prospects are good as this Court’s
exercise of its discretionary powers under
section 172(1)(b) of
the Constitution was undermined in a most fundamental way by the
High Court’s interpretation
of the order in
Tasima I
.
True, the questions that arise for determination in this application
are of critical importance to the parties.  And
the prospects of
success in relation to those questions are good.  Accordingly,
it is in the interests of justice to grant
leave to appeal in case
CCT 182/17 as the order of the High Court has the effect of extending
the life of the extension agreement
beyond the cut-off date confirmed
by this Court in
Tasima I
, namely: 23 June 2015.
Discussion
[42]
As
already alluded to above, the fate of this case hinges, in large
measure, on the interpretation of the judgment and order of
this
Court in
Tasima I
.  As to the proper approach in this
regard, this Court in
Parsons
said the following:
“The starting point is to determine the manifest purpose of the
order.  In interpreting a judgment or order, the court’s

intention is to be ascertained primarily from the language of the
judgment or order in accordance with the usual well-known rules

relating to the interpretation of documents.  As in the case of
a document, the judgment or order and the court’s reasons
for
giving it must be read as a whole in order to ascertain its
intention.”
[21]
(Footnotes omitted.)
[43]
In
Firestone
, the Appellate Division (now known as the Supreme
Court of Appeal) said that the basic principles applicable to the
construction
of documents also apply to the construction of a court’s
judgment or order.
[22]
The court’s intention is to be ascertained primarily from the
language of the judgment or order as construed according
to the usual
well-known rules.  As in the case of any document, the judgment
or order and the court’s reasons for giving
it must be read as
a whole in order to ascertain its intention.  If on such a
reading, the meaning of the judgment or order
is clear and
unambiguous, no extrinsic fact or evidence is admissible to
contradict, vary or qualify, or supplement it.
[23]
[44]
In
Tasima I
, this Court reinstated the order of the High Court
declaring the extension agreement invalid from 23 June 2015.  It
further
reiterated that from 23 June 2015 “the
extension no longer had legal effect, and the interim interdicts
issued
by the High Court fell away”.
[24]
As to the legal effect of the interim orders directing the State
parties to comply with the terms of the extended agreement,
this
Court said:
“The interim orders requiring compliance with the contract
extended by the decision of Mr Mahlalela are of legal effect for
the
period before the counter-application succeeded.  Moreover, the
various findings of contempt and suspended committal made
prior to
the High Court judgment are enforceable.  By contrast, the
finding of contempt and committal made by the [Supreme
Court of
Appeal] and challenged in this Court stands to be set aside.  This
is because once the High Court orders lapsed as
a result of the
Department’s successful reactive challenge of the extension,
the interim interdicts could no longer be enforced.
This
deduction does not, however, affect the period before the reactive
challenge was successfully brought.”
[25]
(Footnotes omitted.)
[45]
Having
noted that the interim interdicts fell away from 23 June 2015, this
Court went on to craft a just and equitable remedy in
the light of
the declaration of invalidity.  It remarked that the extension
agreement had long expired.  And upon a consideration
of the
relevant factors, it concluded that a handover of the eNaTIS system
to the RTMC had to take place “as expeditiously
as
possible”.
[26]
Hence a period of 30 days was allowed for this to happen.
[46]
It
is necessary to emphasise that before 23 June 2015 the contractual
relationship between the parties was regulated by the terms
of the
Turnkey Agreement.  For the initial period the contract was
lawful.  When the initial agreement was unlawfully
extended on 1
May 2010 for a five-year period the parties fulfilled their
respective obligations in terms of the unlawful contract
until it was
declared invalid and set aside on 23 June 2015.  After 23 June
2015, but before November 2016, the relationship
between the parties
had no contractual underpinning but was perpetuated by a series of
court orders granted by the High Court.
After 9 November
2016, the parties’ relationship had no contractual substratum
save for the migration plan whose sole
purpose was to regulate the
handover of the eNaTIS system to the DoT.  As is apparent from
paragraph four of the order in
Tasima I
, the handover of the
system could be implemented in one of two ways: either in terms of a
handover plan agreed to between the parties
within 10 days or if no
agreement was reached within 10 days, in terms of the migration plan
under schedule 18 of the Turnkey Agreement.
Whichever way
was adopted, the handover had to be completed within 30 days from the
date of the order of
Tasima I
.
[47]
The
State parties accepted that they were under a constitutional
obligation to comply with all the court orders predicated on the

order of Mabuse J until their counter- application succeeded.
That counter-application succeeded on 23 June 2015.

Accordingly, the State parties contend that the legal basis for all
of the transactions that took place between 23 June 2015 and
9
November 2016 fell away.  Therefore, they are under no
obligation to pay payment certificate 113.
[48]
In
this Court the case for Tasima was argued along the following
confines.  First, that there is, rightly, no express or implied

reference to the Basson orders in
Tasima I
, because the Basson
orders were made long after 23 June 2015 but before 9 November
2016.  Second, that the Basson orders
were not premised on the
extension agreement but on: (i) the judgment of the Supreme Court of
Appeal handed down on 2 December
2015; (ii) section 18 of the
Superior Courts Act; and (iii) the agreement reached between the
State parties and Tasima culminating
in a “practical regime to
govern the period [from the date of the orders] up to the date of
the” judgment of this Court
in
Tasima I
.  Third,
the sole purpose of the Basson orders was to regulate the parties’
relationship related to the period from
the termination of the
extension agreement that is: from 1 May 2015 to 9 November
2016 when, on the latter date, judgment
in
Tasima I
was handed
down.  In elaboration, Tasima contended that it would be
illogical to suggest, as the State parties sought to do,
that the
Basson orders were set aside on 23 June 2015 even before they were
granted.
[49]
It
is now apposite to revert to a consideration of the import of
section
18(3)
of the
Superior Courts Act.  In
Ntlemeza
, the
Supreme Court of Appeal said that:
“
Section 18(3)
provides a further controlling measure, namely,
a party seeking an order in terms of
section 18(1)
is required ‘in
addition’, to prove on a balance of probabilities that he or
she will suffer irreparable harm if the
court does not so order and
that the other party will not suffer irreparable harm if the court so
orders.”
[27]
But what this Court
is called upon to determine in the context of this case is the import
of
section 18(3).
In particular, this aspect of the case raises
the question whether an order made under
section 18(3)
retains its
legal force beyond the date of the decision of the appeal that
finally determines the dispute between the protagonists.
To
answer this question it is necessary to emphasise the point that all
the subsections of
section 18
are interlinked and must therefore
be read contextually.
[50]
The
importance of context in the process of statutory interpretation was
underscored by this Court in
Bato Star
in these terms:
“
Certainly
no less important than the oft repeated statement that the words and,
expressions used in a statute must be interpreted
according to their
ordinary meaning is the statement that they must be interpreted in
the light of their context.  But it
may be useful to stress two
points in relation to the application of this principle. The first is
that ‘the context’,
as here used, is not limited to the
language of the rest of the statute regarded as throwing light of a
dictionary kind on the
part to be interpreted. Often of more
importance is the matter of the statute, its apparent scope and
purpose, and, within
limits, its background.”
[28]
[51]
Subsection
(1), which is subject to subsections (2) and (3), provides that the
operation and execution of a decision which is the
subject of an
application for leave to appeal or of an appeal is suspended pending
the decision of the application for leave to
appeal or the appeal,
unless a court under exceptional circumstances orders otherwise.
In turn, subsection (2) is made subject
to subsection (3).  It
provides that, unless a court under exceptional circumstances orders
otherwise, the operation and execution
of a decision that is an
interlocutory order not having the final effect of a final judgment,
which is the subject of an application
for leave to appeal or an
appeal, is not suspended pending the decision on the application for
leave to appeal or an appeal.
[52]
Crucially,
subsection (3) requires an applicant for an execution order to prove
“on a balance of probabilities that he or
she will suffer
irreparable harm if the order is not granted and that the other party
will not suffer irreparable harm if the court
so orders”.
As explained in
Ntlemeza
,
section 18(1)
reiterates the common
law position to the effect that the operation or execution of a
judgment is suspended when there is an application
for leave to
appeal or an appeal.
[29]
What ultimately happens to the suspended operation or execution of a
judgment subject to an appeal process would be determined
by the
outcome of the appeal.  If the appeal is unsuccessful the
suspension would cease, unless, of course, as noted in
Ntlemeza
,
“a further application for leave to appeal”
[30]
is made.
[53]
If
a court grants an order for the operation and execution of a decision
which is the subject of an application for leave to appeal
or of an
appeal, and its judgment is subsequently set aside on appeal and
judgment is granted in favour of the appellant as it
happened in
Tasima I
, the order made under
section 18(3)
would then fall
away.  This is so once no further application for leave to
appeal is made or all appeal avenues have been
exhausted.  This,
in my view, accords with the intention and the tenor of
section 18.
[54]
Accordingly,
the sole purpose of the Basson I order relative to
section 18(3)
was to regulate the interim position between the litigants from the
time when that order was made until the final determination
of the
underlying dispute between the parties by this Court.
[55]
At
the hearing of this case, counsel for Tasima conceded that the Basson
I order had its origin in the various High Court orders
going back to
the order of Mabuse J.  Moreover, this order was, in part,
granted in terms of
section 18(3)
of the
Superior Courts Act
which
meant that it could only subsist for so long as the judgment of
this Court in
Tasima I
was still pending.
[56]
Thus,
an order made under
section 18(3)
, as already indicated above, serves
to regulate the interim position between the litigants from the time
when such an order is
made until the final judgment on appeal is
handed down.
[57]
It
therefore goes without saying that the order made by Basson J on
11 April 2016 in terms of which Tasima was permitted
to
execute the judgment of the Supreme Court of Appeal – which was
on appeal before this Court – fell away when, on
9 November
2016, the order of the Supreme Court of Appeal was set aside in
Tasima I
and that of the High Court was reinstated
.
With
respect to the Basson II order, counsel contended that it stood on a
different footing because it was granted by agreement
between the
parties.  For this reason, it was argued that it fell outside
the ambit of
Tasima I
.  This contention is plainly
unsustainable for at least two reasons.  First, the Basson II
order came about pursuant
to negotiations aimed at resolving a
dispute between the parties relating to the Basson I order.
Second, the terms of the
order are, as already mentioned, prefaced
with the words: “Pending the determination by the
Constitutional Court of the proceedings
in case CCT 5/16, the parties
agree as follows, without prejudice to their rights in those
proceedings”.  These introductory
words to the Basson II
order make plain that the terms of this order were to remain of legal
force and effect until a decision
was made in case CCT 5/16.
This is also put beyond doubt by the contents of the letter addressed
to Tasima on behalf of the
State parties referred to in paragraph 22
above.
[58]
It
therefore follows that if all of the orders that were the legal
source of the Basson orders fell away upon the confirmation of
the
High Court’s declaration of invalidity of the extension
agreement by this Court on 9 November 2016 retrospective to 23
June
2015, it is difficult to understand on what basis then can it be
contended that the Basson orders were immune to the outcome
of the
appeal in
Tasima I
.  The fact that the Basson orders were
not under the spotlight in
Tasima I
is of no moment.
What matters is that they too were granted pursuant to the order of
Mabuse J which had in fact spawned a
series of court orders that
enforced compliance with the order of Mabuse J.  In sum, the
Basson orders had legal force and
effect from the time they were made
and for so long as the declaration of invalidity – effective
from 23 June 2015
– had not been made.
[59]
Although
the declaration of invalidity made by the High Court was confirmed by
this Court in
Tasima I
on 9 November 2016, this confirmation,
as indicated earlier, had retrospective effect from 23 June 2015.
This is borne out
by what this Court said in paragraph 176 of
Tasima
I
to which reference has already been made in paragraph 44
above.
[60]
Thus,
once the extension agreement was declared invalid with effect from
23 June 2015, the order granted by Mabuse J –
whose
sole purpose was to preserve the status quo pending the conclusion of
the dispute resolution proceedings – fell away
as did all the
subsequent orders made to enforce the Mabuse J interim order.
[61]
Accordingly,
Tasima had no legal basis to enforce the Basson orders in the face of
the judgment of this Court in
Tasima I
.  The High Court
erroneously considered that the operative date beyond which Tasima
could not enforce its rights deriving
from the Basson orders was 9
November 2016 and consequently lost sight of the date of the
declaration of constitutional invalidity
of the extension agreement,
namely 23 June 2015.  It, therefore, follows from
this, that it entirely misconceived
the import of this Court’s
judgment and order in
Tasima I
.  It ought to have
dismissed Tasima’s application in its entirety.  This
conclusion also disposes of the question
whether the State parties
had breached their constitutional obligations under section 165(4)
of the Constitution by failing
to comply with the Basson orders
which, in light of the aforegoing, falls to be answered in the
negative.
Costs
[62]
Before
concluding, there is one final issue that requires to be addressed.
And that issue relates to the costs orders of both
the Supreme Court
of Appeal and the High Court occasioned by the dismissal of the
applications for leave to appeal made to those
courts by the State
parties.  In light of the conclusion to which I have come, those
costs orders fall to be set aside and
substituted with an order
directing Tasima to bear those costs in both courts.
[63]
I
now proceed to deal with the second application under case CCT
240/17.
Tasima (Pty)
Limited v Road Traffic Management Corporation
Pre-litigation history
[64]
As
already stated above, this Court, having confirmed the High Court’s
declaration of invalidity of the extension agreement
with effect from
23 June 2015, ordered Tasima to hand over the eNaTIS system and
related services to the RTMC within 30 days of
its order.
[31]
It further ordered that unless an alternative transfer management
plan was agreed to by the parties within 10 days of
its order, the
handover was to be conducted in terms of the migration plan set out
in schedule 18 of the Turnkey Agreement.
[32]
[65]
Soon
after the grant of this Court’s order in
Tasima I
, the
parties entered into negotiations with a view to agree on a handover
plan for a transfer of the eNaTIS system to the
RTMC.  But
these negotiations reached an impasse because Tasima had instead
proposed that the handover be implemented over
a period of 44 weeks.
Tasima then turned to this Court and sought an order granting it
direct access and for this Court to
clarify or vary its order of 9
November 2016 such that the handover of the eNaTIS system would not
have to be implemented within
30 days.  The application for
direct access was dismissed with costs for lack of prospects of
success.  Thereafter, further
negotiations still failed to break
the logjam.
Litigation
history
High Court
[66]
On
16 March 2017, some three months after the expiry of the 30-day
period, the State parties instituted legal proceedings against
Tasima
seeking an order evicting Tasima from the premises housing the eNaTIS
system and for the handover of the system to the RTMC.
In April
2017, the High Court (per Tuchten J) granted the order sought, noting
that the transfer had to take place expeditiously
as it had been
delayed for some four months.  The High Court observed that
“there is nothing in the handover order [in
Tasima I
] or
[its own] order to prevent the parties from continuing after the
handover to cooperate in ensuring that the transfer is achieved
as
swiftly and in an orderly fashion as possible.”
[33]
Tasima’s application for leave to appeal against the judgment
and order of the High Court failed, both in the High
Court and the
Supreme Court of Appeal.  During August 2017 the President of
the Supreme Court of Appeal dismissed Tasima’s
further
application in terms of
section 17(2)(f)
of the
Superior Courts Act for
reconsideration or variation of the
Supreme Court of Appeal’s earlier decision refusing Tasima’s
application for leave
to appeal.
In this Court
[67]
In
this Court Tasima seeks leave to appeal against the judgment and
order of the High Court evicting it from the eNaTIS premises
and
compelling it to hand over the system and its accessories to the
RTMC.  But Tasima does not seek restoration of its occupation
to
the premises.  Nor does it seek that control of the eNaTIS
system be restored to it.  Rather it seeks a declaratory
order
that: (i) as the parties failed to agree to an alternative
transfer-management plan, the handover of the eNaTIS system must
be
conducted in accordance with the migration plan provided for in
schedule 18 of the Turnkey Agreement; (ii) that, in essence,
this
Court’s order did not contemplate a handover of the eNaTIS
system that must occur forthwith; (iii) although the migration
plan
pursuant to which the eNaTIS system would be transferred to the RTMC
had to be agreed to within 10 days, the handover of the
system was,
however, not required to take place within 30 days of this Court’s
order; and (iv) Tasima was entitled to payment
for services rendered
during the period of the implementation of the handover until the
date on which the transfer is completed.
Jurisdiction
[68]
With
respect to
jurisdiction, Tasima submitted that
this application raises constitutional issues and that, in addition,
the High Court order raises
an arguable point of law of general
public importance which ought to be considered by this Court.
[34]
As to what constitutes an “arguable point of law”
this Court in
Slip Knot Investments
, said that such
a point must axiomatically, “not be one of fact” and that
“[t]he notion that a point of law is
arguable entails some
degree of merit in the argument [sought to be advanced]”.
[35]
At its core, this application concerns the interpretation of this
Court’s order in
Tasima I
by the High Court.
Leave to appeal
[69]
But,
the fact that the matter engages this Court’s jurisdiction does
not mean that leave must, as a matter of course, be granted.

Leave to appeal may still be refused if this Court finds that it is
not in the interests of justice to hear the appeal.  For
reasons
that will become apparent later in this judgment, this application
does not enjoy reasonable prospects of success.  Accordingly,

leave to appeal should not be granted.
[70]
In
its written heads of argument, Tasima submitted that the High Court,
in authorising a “precipitous” handover of the
eNaTIS
system to the RTMC, lost sight of the fact that: (i) in crafting its
order, this Court took cognisance of the complexity
and critical
importance of the eNaTIS system as a national key point hence the
requirement that the handover had to be conducted
in terms of the
migration plan set out in schedule 18 of the Turnkey Agreement absent
an alternative transfer plan agreed to by
the parties; (ii) it was
not feasible to transfer the system on less than 24 hours’
notice; and (iii) that it was critical
that the State parties and
Tasima should agree on which party, between them, would be liable for
the costs incurred by third- party
service providers responsible
for operating the eNaTIS system and that the absence of an agreement
on this issue has a potential
to precipitate a crisis.  It bears
repeating that whilst Tasima submits that it is in the interests of
justice that this Court
should hear the appeal, it nevertheless does
not seek to be restored as the operator of the eNaTIS system.
Instead, it requires
this Court to determine what it calls the “final
legal framework which all affected parties can look to and rely upon
to
govern their affairs consequent upon the transfer of the eNaTIS
system”.
[71]
For
their part, the State parties argue that it is not in the interests
of justice for this Court to grant leave because the case
is moot as
the declaratory relief sought by Tasima will have no practical legal
effect.  In elaboration, they contend that:
(i) Tasima does
not seek to reverse the transfer of the eNaTIS system; (ii) the
migration plan provided for in Schedule 18
merely provides broad
principles according to which such plan should be formulated and no
more which is still open to the parties
to do; (iii) the judgment of
the High Court acknowledged that there was nothing that precluded the
parties from resolving any outstanding
issues between them even after
Tasima’s eviction from the premises; and (iv) in any event the
relief now sought by Tasima
in its application in this Court
is
res judicata
,
having been previously determined by this Court when, on 8 February
2017, it dismissed Tasima’s application made under case

CCT 305/2016 for direct access on the ground that it bore no
prospects of success.  Thus, the State parties assert that

Tasima is precluded from seeking the same relief again from this
Court.
[72]
The
relevant part of schedule 18 of the Turnkey Agreement is clause 2.2
which provides:
“
Agreeing on detailed migration plan
. In order to
facilitate the migration of the Existing System
and
Services as contemplated in clause 2
.
1,
Contractor shall as soon as is reasonably possib
l
e
after the Effective Date, meet
with
the
State and agree on a deta
ile
d m
i
gration
plan with agreed time scales, unless otherw
i
se
agreed by the parties, be completed within 46 (forty six) days of the
Effective Date.”
[73]
As
is apparent from the preceding paragraph, Schedule 18 does not itself
spell out a plan on how the eNaTIS system must be transferred
to the
DoT.  All it provides for is that the parties must, within 46
days of the effective date, agree on a comprehensive
plan on how the
migration of the system should be implemented.  The effective
date referred to in clause 2.2 of schedule 18
is, in terms of
clause 1.2.23, 1 February 2002.
Is the matter moot?
[74]
In
determining this question it is as well to remind oneself of the
import of the order sought to be appealed by Tasima.  As
already
mentioned, the order of the High Court, in essence, directed
Tasima forthwith to vacate the eNaTIS system premises
and to hand
over the system to the RTMC.  Tasima takes no issue with the
fact that the system is now firmly under the control
of the RTMC.
Indeed the relief sought by Tasima in this application is not aimed
at reversing the execution of the order
or interfering with its
operation in any way.  To the contrary, the change brought about
by the execution of the eviction
order will remain intact.
Thus, the RTMC will remain in occupation of the premises and continue
to operate the eNaTIS system
as it has been doing so since April
2017.
[75]
As
to mootness, in
National Coalition for Gay and Lesbian Equality
this Court said the following:
“A case is moot and therefore not justiciable, if it no longer
presents an existing or live controversy which should exist
if the
Court is to avoid giving advisory opinions on abstract propositions
of law.”
[36]
[76]
Nonetheless,
this Court has in the past decided appeals even when the case is
moot, if it is in the interests of justice to do so.
[37]
Some of the relevant considerations in this regard are whether the
order that the court may make will have any practical
effect either
as between the parties or others; whether it is in the interests of
justice to nevertheless hear the matter; and
whether the decision
will be of benefit to the public at large.
[38]
In
Pillay
this Court said that in determining whether it is in
the interests of justice to hear a case that is moot, a court should
have regard
to the following factors: (i) the nature and extent of
the practical effect any order it might make would have; (ii) the
complexity
and importance of the issue; and (iii) whether deciding
the matter would have the effect of resolving discordant court
decisions.
[39]
[77]
Counsel
for Tasima argued that the matter is not moot because at its roots
the application seeks a “definitive pronouncement
by this Court
[that] will settle the dispute and inform the parties of what its
order contemplated and thereby eliminate or reduce
any potential
future litigation”.  In my view, this submission is, in
truth, an invitation to this Court to give advice
to the parties on
their differing contentions.  That is no function of this
Court.  And, as Innes CJ aptly put it in
Geldenhuys
almost a century ago:
“
[C]ourts of law exist for
the settlement of concrete controversies and actual infringements of
rights,  not to pronounce upon
abstract questions, or to advise
upon differing contentions, however, important.”
[40]
[78]
It
was further submitted that if the order of the High Court were set
aside it would then follow that Tasima should not have been
evicted
thereby vindicating its rights under the order of this Court in
Tasima I
.  In my view this contention is unavailing.
This Court’s order in
Tasima I
is unequivocal.  It
decrees that the eNaTIS system must be handed over to the RTMC within
30 days of the date of the order.
In order to achieve that
outcome, the parties were directed to agree to a transfer plan within
10 days.  Failing that, the
transfer was to be conducted in
accordance with the migration plan in terms of Schedule 18.
And, as the High Court correctly
observed, the fact that Tasima has
been evicted otherwise than in terms of a mutual agreement between
the parties, which eviction
Tasima does not seek to reverse, does not
preclude the parties, even at this late stage, from negotiating and
agreeing on any outstanding
issues in order to give final effect to
the hand-over.
Practical effect
[79]
In
the alternative, Tasima contended that any order that this Court may
make will have a practical effect on the parties themselves
or on
others who are awarded tenders by organs of state that are
subsequently declared constitutionally invalid.  I fail to
see
how this argument can avail Tasima in the context of this case when
Tasima itself accepts the status quo brought about by the
execution
of the order of the High Court.
[80]
Moreover,
the argument advanced by Tasima loses sight of the fact that an
appeal lies against the order and not the reasons for
the order.
[41]
As already mentioned, Tasima has no desire to be reinstated in the
premises.  Nor does it seek to regain control of
the
eNaTIS system.  Accordingly, any declaratory order that
Tasima should never have been evicted would still leave Tasima
in the
same position.  The RTMC would also remain in occupation of the
premises and continue to operate the system as it has
been doing
since regaining effective control thereof on 6 April 2017.  As
explained in paragraph 74 above, the eviction of
Tasima from the
premises and the handover of the eNaTIS system to the RTMC, which is
what the order sought to be appealed is all
about, would remain
unaffected even if this Court were to uphold the appeal.  The
question that arises is: to what end then
should an appeal be
entertained?  Doing so would be an academic exercise yielding no
practical consequences.
[81]
It
is as well to remember that the principal purpose of the migration
plan was to place the eNaTIS system under the control of the
RTMC in
a manner that would cause the least disruption to the functionality
of the system given its strategic importance to the
government.
I therefore fail to see how granting leave in this case would advance
the interests of justice as contended for
by Tasima.
Res judicata
[82]
It
remains to briefly say something in passing about why, even under the
rubric of
res judicata
, leave to appeal ought not to be
granted in this case.  As already indicated, the State parties
also resist Tasima’s
application on the grounds that the relief
sought by Tasima is
res judicata
.
[42]
It is not in dispute that on 8 December 2016, Tasima applied to this
Court in terms of
rule 18
of this Court’s Rules by way of
direct access under CCT 305/16 for an order:
a. clarifying this Court’s order in
Tasima I
to the
effect that the eNaTIS system must be handed over in terms of the
migration plan;
b. that failure to agree to an alternative migration plan within 10
days of
Tasima I
, meant that the transfer of the eNaTIS
system could take place only in terms of schedule 18 of the Turnkey
Agreement;
c. that the duration of the migration plan, which did not have to
provide for the transfer of the system within 30 days, must be
agreed
between the parties, failing which the time frames under the project
management plan would apply;
d. that the State parties would pay all costs incidental to the
transfer of the system and also pay Tasima its standard rates for

services rendered during the transfer process.
[83]
On
8 February 2017, this Court dismissed Tasima’s application for
direct access in its entirety for lack of prospects of success.

Implicit in the reason for dismissal of Tasima’s application is
the fact that this Court had regard to the merits of Tasima’s

application.
[43]
The principal, if not the sole objective, of Tasima’s
application for direct access was to seek clarification, and
indeed
interpretation, of this Court’s order in
Tasima I
.  For
its part, Tasima argued that its application for direct access was
dismissed “in the interests of justice.”
[44]
But this contention is belied by this Court’s order from
which it is manifest that the application was dismissed for
“lack
of prospects”.  To all intents and purposes the relief
claimed by Tasima in its current application is,
in substance, the
same as that sought in its application for direct access.  In
both applications the cause of action and
the parties are the same.
[84]
As
I see it, in seeking a declaratory order in the terms for which
Tasima now contends, Tasima is in truth attempting to have “a

second bite at the cherry” in the guise of an application for
leave to appeal against the order of the High Court.
But even
on an acceptance that there is no commonality of a cause of action
and relief, the attenuated form of
res judicata
known as
“issue estoppel” would apply.  And in the context of
this case, there is no reason to think that Tasima
would suffer great
hardship or even positive injustice if the State parties’
reliance on
res judicata
were upheld.  That said, I
find it unnecessary to determine the issue relating to
res
judicata
definitively in this case.  That question must
therefore be left open to be dealt with on another day when it is
appropriately
raised and after thoughtful consideration.
[85]
For
all the reasons stated above, there is no basis upon which this Court
should exercise its discretion to hear the appeal notwithstanding
the
mootness of the crux of the issue as between the parties.  There
is clearly no discrete legal issue of public importance
arising from
the eviction order granted by the High Court against which Tasima
seeks to appeal that would affect matters in the
future on which the
adjudication of this Court is required.
Costs
[86]
As
Tasima is, in this application, advancing its commercial interests I
can conceive of no exceptional circumstances that would
justify a
departure from the ordinary rule that costs follow the result.
[45]
In their written heads of argument, counsel for the State parties
argued that as Tasima’s application is vexatious
this would be
a proper case to award costs on an attorney and client scale
including the costs of three counsel.  However,
this submission
was not pressed at the hearing before us.  Accordingly nothing
more need be said on this score, save to say
that neither costs on a
punitive scale
[46]
nor costs of three counsel are warranted.
[47]
Order
[87]
The
following orders are made:
Under CCT 182/17
(Department of Transport and Others v Tasima (Pty) Limited):
1. Leave to appeal is granted.
2. The appeal is upheld.
3. The order of the High Court is set aside and substituted with the
following:
“The
application is dismissed with costs, including the costs of two
counsel.”
4. The costs orders of the Supreme Court of Appeal and the High Court
in the applicants’ applications for leave to appeal
in those
courts are set aside and replaced with an order that the costs of the
applications, shall be borne by the respondent including
the costs of
two counsel where employed.
5. The respondent is ordered to pay the applicants’ costs in
this Court, including the costs of two counsel.
Under case CCT
240/17 (Tasima (Pty) Limited and Others v Road Traffic Management
Corporation and Others), the following order is
made:
1. The application for leave to appeal is dismissed.
2. The applicants must pay the costs of the application jointly and
severally, the one paying the others to be absolved, such costs
to
include the costs of two counsel.
For the Applicants
(in CCT 182/17): G Marcus SC, N Maenetje SC, M Stubbs, M
Musandiwa and A Armstrong instructed by the
State Attorney
and Selepe Attorneys.
For the Respondents
(in CCT 182/17): A E Franklin SC and A W T Rowan instructed by
Webber Wentzel.
For the Applicants
(in CCT 240/17): A E Franklin SC and A W T Rowan instructed by Webber
Wentzel.
For the Respondents
(in CCT 240/17): G Marcus SC, N Maenetje SC, M Stubbs, M
Musandiwa and A Armstrong instructed by the
State Attorney
and Selepe Attorneys.
[1]
Department of Transport v Tasima (Pty) Limited
[2016] ZACC 39
;
2017 (2) SA 622
(CC);
2017
(1) BCLR 1
(CC) (
Tasima I
)
.
[2]
In the High Court, the parties locked horns in no less than fourteen
times.
[3]
10 of 2013.
[4]
Tasima (Pty) Ltd v Department of Transport
[2017] ZAGPPHC 46 (Potterill J judgment) at para 23.
[5]
National Sorghum Breweries (Pty) Limited t/a
Vivo African Breweries v International Liquor Distributors (Pty)
Limietd
[2000] ZASCA 70
;
2001 (2) SA 232
(SCA) at para 2 and the authorities cited therein (per Olivier JA).
[6]
Boshoff v Union Government
1932 TPD 345. 350-351.
[7]
Section 217
, which is headed “Procurement” reads:
“
(1) When an organ of state in the national,
provincial or local sphere of government, or any other institution
identified in national
legislation, contracts for goods or services,
it must do so in accordance with a system which is fair, equitable,
transparent,
competitive and cost-effective.
(2) Subsection (1) does not prevent the organs of state
or institutions referred to in that subsection from implementing a
procurement
policy providing for—
(a) categories of preference in the allocation of
contracts; and
(b) the protection or advancement of persons, or
categories of persons, disadvantaged by unfair discrimination.
(3) National legislation must prescribe a framework
within which the policy referred to in subsection (2) must be
implemented.”
[8]
29 of 1999.
Section 38
of the Act, which is headed “
General
responsibilities of accounting officers” reads:
“
(1) The accounting officer for a department,
trading entity or constitutional institution—
…
(c) must take effective and appropriate steps to—
(i) collect all money due to the department, trading
entity or constitutional institution;
(ii) prevent unauthorised, irregular and fruitless and
wasteful expenditure and losses resulting from criminal conduct; and
(iii) manage available working capital efficiently and
economically;
…
(g) on discovery of any unauthorised, irregular or
fruitless and wasteful expenditure, must immediately report, in
writing, particulars
of the expenditure to the relevant treasury and
in the case of irregular expenditure involving the procurement of
goods or services,
also to the relevant tender board.”
[9]
Inter
alia, Treasury Regulation 16A6.4 read with Treasury Instruction
8 of 2007/2008.  Treasury Regulation 16A6.4
provides as
follows:
“
If
in a specific case it is impractical to invite competitive bids, the
accounting officer or accounting authority may procure
the required
goods or services by other means, provided that the reasons for
deviating from inviting competitive bids must be
recorded and
approved by the accounting officer or accounting authority.”
Treasury
Instruction 8 of 2007/2008 provides as follows:
“
3.4.1
Accounting officers / authorities should invite competitive bids
for all procurement above R500 000.
3.4.2 Competitive bids should be advertised in at
least the Government Tender Bulletin and in other appropriate media
should
an accounting officer/authority deem it necessary to ensure
greater exposure to potential bidders. The responsibility for
advertisement
costs will be that of the relevant accounting
officer/authority.
3.4.3 Should it be impractical to invite competitive
bids for specific procurement, e.g. in urgent or emergency cases or
in case
of a sole supplier, the accounting officer/authority may
procure the required goods or services by other means, such as price
quotations or negotiations in accordance with Treasury Regulation
16A6.4. The reasons for deviating from inviting competitive
bids
should be recorded and approved by the accounting officer/authority
or his/her delegate. Accounting officers /authorities
are required
to report within ten (10) working days to the relevant treasury and
the Auditor-General all cases where goods and
services above the
value of R1 million (VAT inclusive) were procured in terms of
Treasury Regulation 16A6.4. The report must
include the description
of the goods or services, the name/s of the supplier/s, the amount/s
involved and the reasons for dispensing
with the prescribed
competitive bidding process.”
[10]
See
Tasima I
above n
1 at paras 15-23.
[11]
Tasima (Pty) Ltd
v Department of Transport
[2015] ZASCA 200
; [2016] JDR 1370 (SCA) at para 16 with reference to
Clipsal
Australia (Pty) Ltd v GAP Distributors (Pty) Ltd
2010
(2) SA 289
(SCA)
at para 22 and
Minister
of Home Affairs v Somali Association of South Africa Eastern Cape
[2015] ZASCA 35
;
2015
(3) SA 545
(SCA)
at paras 35-6 where the following is stated:
“
It is a most dangerous thing for a litigant,
particularly a State department and senior officials in its employ,
to wilfully ignore
an order of court.  After all there is
an unqualified obligation on every person against, or in
respect of, whom an
order is made by a court of competent
jurisdiction to obey it unless and until that order is discharged.
It cannot be left
to the litigants to themselves judge whether or
not an order of court should be obeyed. There is a constitutional
requirement
for complying with court orders and judgments of the
courts cannot be any clearer on that score.  No democracy can
survive
if court orders can be shunned and trampled on as happened
here.
That
the State must obey the law, is a principle that is fundamental to
any civilised society.  The logical corollary is
that the
State, its organs and functionaries cannot arrogate to themselves
the right not to obey the law or elevate themselves
to a position
where they can be regarded as being above the law.”
[12]
Tasima (Pty) Ltd v Department of Transport
[2016] ZAGPPHC at paras 22 and 26.
[13]
Tasima I
above n 1 at
para 208.
[14]
Potterill J judgment above n 4 at paras 8-11.
[15]
Id at para 18.
[16]
The section provides:
“
(3) The Constitutional Court—
. . .
(b) may decide—
(i) constitutional matters; and
(ii) any other matter, if the Constitutional Court
grants leave to appeal on the grounds that the matter raises an
arguable point
of law of general public importance which ought to be
considered by that Court”
[17]
Section 172(1)(b) of the Constitution provides:
“
(1) When deciding a constitutional matter within
its power, a court —
…
(b) may make any order that is just and equitable,
including—
(i) an order limiting the retrospective effect of the
declaration of invalidity; and
(ii) an order suspending the declaration of invalidity
for any period and on any conditions, to allow the competent
authority
to correct the defect.”
[18]
As to what this requirement entails see
DE v
RH
[2015] ZACC 18
;
2015 (5) SA 83
(CC);
2015
(4) BCLR 1003
(CC) at paras 8-10 and
Paulsen
and Another v Slip Knot Investments 777 (Pty) Limited
[2015] ZACC 5
;
2015 (3) SA 479
(CC);
2015 (5) BCLR 509
(CC) (
Slip
Knot Investments
) at para 16.
[19]
Bannatyne v Bannatyne
[2002] ZACC 31
;
2003 (2) SA 363
(CC);
2003 (2) BCLR 111
(CC) at para
17.
[20]
National Education, Health and Allied Workers
Union v University of Cape Town
[2002] ZACC
27
;
2003 (3) SA 1
(CC);
2003 (2) BCLR 154
(CC) at para 25.
[21]
Eke v Parsons
[2015]
ZACC 30
;
2016 (3) SA 37
(CC);
2015 (11) BCLR 1319
(CC)
(Parsons
)
at para 29.  See also generally
Finishing
Touch 163 (Pty) Ltd v BHP Billiton Energy Coal South Africa Ltd
[2012] ZASCA 49
;
2013 (2) SA 204
(SCA)
(
Finishing Touch
) at
para 13; and
Administrator, Cape v Ntshwaqela
1990 (1) SA 705
(A) (
Ntshwaqela
)
at 715F-H.
[22]
Firestone
South Africa
(Pty)
Ltd
v
Gentiruco
AG
1977 (4)
SA
298
(A) (
Firestone
)
at 304D-H.
[23]
See
Parsons
above n
22;
Finishing Touch
and
Ntshwaqela
id .
[24]
Tasima I
above n 1 at
para 200.
[25]
Id at para 176.
[26]
Id at para 206.
[27]
Ntlemeza v Helen Suzman Foundation
[2017] ZASCA 93
;
2017 (5) SA 402
(SCA) at para 35.
[28]
Bato Star Fishing (Pty)
Ltd v Minister of Environmental Affairs and Tourism
[2004] ZACC 15
;
2004 (4) SA 490
(CC);
2004 (7) BCLR 687
(CC) (
Bato
Star
)
Id,
at para 89.
[29]
Ntlemeza
above n 28
at paras 25 and 28.
[30]
Id at para 28.
[31]
Id at para 208.
[32]
Id.
[33]
Road Traffic Management Corporation v Tasima
(Proprietary) Limited
[2017] ZAGPPHC 94 at
para 24.
[34]
Section 167(3)(b)(ii) of the Constitution.
[35]
Slip Knot Investments above
n
20 at paras 20-21.
[36]
National Coalition for Gay and Lesbian
Equality v Minister of Home Affairs
[1999]
ZACC 17
;
2000 (2) SA 1
(CC);
2000 (1) BCLR 39
(CC) at fn 18.
[37]
See, for example
Van Wyk v Unitas Hospital
(Open Democratic Advice Centre as Amicus
Curiae)
[2007] ZACC 24
;
2008 (2) SA 472
(CC);
2008 (4) BCLR 442
(CC) at para 29;
AAA
Investments (Pty) Limited v Micro Finance Regulatory Council
[2006] ZACC 9
;
2007 (1) SA 343
(CC);
2006 (11) BCLR 1255
(CC) at
para 27
and Radio Pretoria v Chairperson of
Independent Authority of South Africa
[2004]
ZACC 24
;
2005 (4) SA 319
(CC);
2005 (3) BCLR 231
(CC) at para 22.
[38]
Id,
Van Wyk
at para
29.
[39]
MEC for Education: Kwazulu-Natal v Pillay
[2007] ZACC 21
;
2008 (1) SA 474
(CC);
2008 (2) BCLR 99
(CC) (
Pillay
)
at para 32.
[40]
Geldenhuys and Neethling v Beuthin
1918
AD 426
at 441.
[41]
International Trade Administration
Commission v SCAW South Africa (Pty) Ltd
[2010] ZACC 6
;
2010 (4) SA 618
(CC);
2010 (5) BCLR 457
(CC)
at
para 71.
[42]
The philosophical rationale for the
res
judicata
principle is to avoid conflicting
decisions on the same issue and to bring finality to litigation.
[43]
See in this regard the discussion in the minority judgment of van
der Westhuizen J in
Mpofu v Minister of
Justice and Constitutional Development
[2013]
ZACC 15
;
2013 (2) SACR 407
(CC);
2013 (9) BCLR 1072
(CC) at
paras 14–6 where the following was stated:
“
[14] …
Once an application for leave to appeal is dismissed, this is a
judicial decision, which is final and determinative,
involving the
same parties, cause of action and relief sought. The fact that an
application for leave to appeal or an appeal
is without merit, or
‘ill-advised’, cannot easily make it a nullity and
open the way for further appeals, every
time on a different ground.
[15] However, one
has to look a little deeper into the history and reason behind the
principle of res judicata before concluding
that it is an absolute
bar to the granting of leave. . . . Historically, its use was mainly
to prevent the difficulties that
might arise from discordant or
contradictory decisions in the same suit. In the context of civil
matters it operates in tandem
with the so-called ‘once and for
all’ rule that a plaintiff may generally only claim for
damages arising out of the
same cause of action once….
[16] Furthermore –
and closer to the facts of this case – the present application
does not necessarily call for a
decision on the merits which may
contradict the previous decisions of this Court. Both the 2008 and
2009 applications were dismissed
on the basis that this Court did
not regard it as ‘in the interests of justice’ to hear
the matter. The merits of
the applicant’s specific claim in
the present application . . .  were not decided by this Court.
No finding was made
on the prospects of success of the applicant’s
case, as this Court often does….” (Footnotes omitted.)
As already
mentioned, Tasima’s 2016 application was dismissed pursuant to
a finding that it had no prospects of success.
Thus, the fundamental
reason for the
res
judicata
principle,
which is to avoid conflicting decisions on the same issue and to
bring about finality in litigation, is undoubtedly
apposite.
[44]
See
Lekolwane v Minister of Justice
[2006]
ZACC 19
;
2006 JDR 0897
[2006] ZACC 19
; ;
2007 (3) BCLR 280
(CC) at para 1 where this Court had occasioned to
explain the import of an order dismissing an application for direct
access
“in the interests of justice”.  It said that
this meant that it is generally undesirable for it to be both a
court of first and last instance.
[45]
Compare:
Biowatch Trust v Registrar, Genetic
Resources
[2009] ZACC 14
;
2009 (6) SA 232
(CC);
2009 (10) BCLR 1014
(CC) at para 25.
[46]
Compare:
Nel v Davis SC N.O.
[2016] ZAGPPHC 596; [2016] JDR 1339 (GP) at paras 25-6;
Plastic
Converters Association of South Africa obo Members v National Union
of Metalworkers Union of South Africa
[2016]
JOL 36301
(LAC) at para 46; and
Van Dyk v
Conradie
1963 (2) SA 413
(C) at 418.
[47]
See, for example
Motsepe v Commissioner for
Inland Revenue
[1997] ZACC 3
;
1997 (2) SA
898
(CC);
1997 (6) BCLR 692
(CC) at para 32.