Department of Transport v Tasima (Pty) Limited

• Jurisdiction: South Africa
• Judge: Zondo DCJ and Dlodlo AJ and Froneman J and Goliath AJ and Jafta J, Khampepe J and Madlanga J and Petse AJ and Theron J
• Judgment Date: 17 July 2018
• Docket Number: CCT 240/17
• Court: Constitutional Court
• Hearing Date: 08 March 2018
• Citation: 2018 JDR 1122 (CC)

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

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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

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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

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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

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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

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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...