Department of Public Works, Roads and Transport: Mpumalanga Province v Kwa-Mahlaba Connect CC and Others (3420/2020) [2020] ZAMPMBHC 28 (28 December 2020)

REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

(MPUMALANGA DIVISION, MBOMBELA)

CASE NO: 3420/2020

28//12/2020

In the matter between:

THE DEPARTMENT OF PUBLIC WORKS, ROADS Applicant

AND TRANSPORT: MPUMALANGA PROVINCE

and

KWA-MAHLABA CONNECT CC

First Respondent

ZIKO TELECOMS (PTY) LTD

Second Respondent

ABT TELECOMS (PTY) LTD

Third Respondent

JUDGMENT

MASHILE J:

INTRODUCTION

[1] This urgent application first served before this Court on 5 December 2020 but had to stand down to the following day, 6 December 2020, due to certain unbearable inaccuracies that had to be corrected before it could be heard. When it returned to Court on 6 December 2020, the Applicant on urgent basis specifically sought the following relief:

“5.2 That a Rule Nisi be issued on, 06 December 2020 at 10h00 calling upon the First and Second Respondents to show cause on Tuesday, 26 January 2021 at 10H00 or as soon thereafter as the matter may be heard why a final order should not be granted in the following terms:

5.2.1 That the First Respondent be interdicted and restrained from porting telephone numbers (013) 766 0000 to (013) 766 9999 to the Second Respondent;

5.2.2 That the First Respondent be ordered to port telephone numbers (013) 766 0000 to (013) 766 9999 to the Third Respondent;

5.2.3 In the event that the First Respondent has already ported telephone numbers (013) 766 0000 to (013) 766 9999 to the Second Respondent, the Second Respondent be ordered to port telephone numbers (013) 766 0000 to (013) 766 9999 to the Third Respondent;

5.2.4 In the event that the First Respondent has already ported telephone numbers (013) 766 0000 to (013) 766 9999 to the Second Respondent, the Second Respondent be interdicted and restrained from porting telephone numbers (013) 766 0000 to (013) 766 9999 further or to any other person except the Third Respondent;

5.2.5 In the event that the First Respondent has already ported telephone numbers (013) 766 0000 to (013) 766 9999 to the Second Respondent or any other person, the Second Respondent or any other person having ported telephone numbers (013) 766 0000 to (013) 766 9999 further or to any other person, the First, Second or any other person in possession of the said telephone numbers, be ordered to port the said telephone numbers (013) 766 0000 to (013) 766 9999 to the Third Respondent;

5.3 the provisions of paragraph [5.2.1] to [5.2.5] shall operate as an interim order with immediate effect pending the return date.

5.4 Alternatively, granting an interim interdict against the First and Second Respondents in terms of prayers [5.2.1] to [5.2.5] hereof pending the outcome of the hearing of oral evidence or a trial as to the entitlement on the part of the Applicant to the relief substantially set out in prayers [5.2.1] to [5.2.5] thereof.

5.5 Service of the Court Order:

5.5.1 Service upon the First Respondent be effected by email at muzic@kwamahlaba.co.za and by personal service.

5.5.2 Service upon the Second Respondent be effected by email at admin@zikotelecoms.co.za and by personal service.

5.6 The Respondents are entitled to anticipate the return date after 48 hours written notice to the Applicant’s attorney.

5.7 The costs of this application to be determined at the return date of this matter;”

[2] The Court heard the matter and granted relief that substantially mirrored the notice of motion returnable on 26 January 2020 but with the right to anticipate the date of hearing afforded to the Respondent at a 48-hour notice to the Applicant. As a result of the matter having been heard in the absence of the Respondents, the Respondents not only anticipated the hearing but also brought a reconsideration in terms of Uniform Rule of Court 6(12)(c). It was subsequently brought forward and enrolled as an urgent matter on 15 December 2020.

[3] In answering to the case of the Applicant, the Respondents also counterclaimed on urgent basis. The essence of the counterclaim was that it be permitted to continue providing services that it had been delivering to the Applicant until its review application enrolled on the opposed roll of this Court of 11 February 2021. The counterclaim is opposed both by the First and Third Respondents firstly, on the ground that it lacks urgency or that if it is, it is self-created and secondly, it is devoid of any merit whatsoever. The Second Respondent does not oppose the application notwithstanding that it is cited as a party that has acquired the entire shareholding of the First Respondent.

[4] Subsequently, the matter almost spiralled out of control. The First Respondent filed affidavits under the rubric of confirmatory affidavits when in reality they were supplementary affidavits that required leave of the Court before they could be filed. Due to their contents, the Court thought it would be wise to allow them. The Third Respondent strongly argued that it needed to respond thereto, which right the Court granted. On 19 December 2020, the First Respondent replied to the answering affidavit of the Third Respondent and that concluded the exchange of documents between the parties.

FACTUAL MATRIX

[5] To a very large extent, the background facts of what transpired in this matter are common cause. The history between the Applicant and the First Respondent is extensive dating back to 7 February 2003 when the First Respondent was awarded a contract for a period of three years to provide voice, data maintenance and related services at the Riverside Government Complex by the Mpumalanga Provincial Government. This contract did not endure for the full duration because on 2 June 2005 the parties agreed to terminate it. The contract was substituted for a month-to-month agreement until the Mpumalanga Provincial Government could appoint a new service provider.

[6] The month-to-month agreement ended on 1 September 2010 when the Applicant appointed the First Respondent to render Telecommunication related services for a period of three years until 31 August 2013 under Bid Number: PWRT/1613/10/MP. Upon the expiry of the three-year term aforesaid, the Contract was extended to 28 February 2014 being a period of 6 months. The contract was further extended continually on a month-to-month basis on the same terms and conditions until a new contract was in place with an addendum to the agreement concluded on or about 13 June 2017.

[8] During the course of a series of extensions of contract no. PWRT/1613/10/MP between the Applicant and the First Respondent, Bid Number PWRT/1613/13/MP for the maintenance of Telecommunication and related services inclusive of VOIP Implementation at all Mpumalanga Provincial Government owned or leased buildings, Regional offices, VIP Residences and the Riverside Government Complex (RGC) Nelspruit for a period of 3 (three) years was advertised with the closing date being 16 January 2014.

[9] On 20 June 2014 then Head of Department of Public Works, Roads & Transport approved the re-advertisement of Bid Number PWRT/1613/13/MP as per the recommendation of the Bid Evaluation Committee to the Bid Adjudication Committee dated 22 April 2014 and the subsequent recommendation by the Bid Adjudication Committee to the Head of Department to Technology dated 20 May 2014 respectively. On 18 June 2014, the Mpumalanga Department of Human Settlements requested to participate in PWRT/1613/10/MP awarded to the First Respondent.

[10] On 25 June 2014, the Senior Manager: Supply Chain Management requested that the approval of the Bid Adjudication Committee for the Department of Human Settlement to participate in PWRT/1613/10/MP awarded to the First Respondent in 2010 be extended for four months effective from 1 May 2014 to 31 August 2014. the request for the approval of the Department of Human Settlement to participate in the contract with the Applicant was because the new contract could not be awarded under that Bid Number: PWRT/1613/13/MP. On 15 July 2015, The Head of Department approved the request.

[11] On 24 July 2014, the Department of Human Settlements was accordingly informed of the approval of the participation in PWRT/1613/10/MP awarded to the First Respondent. On 12 May 2015, the Head of Provincial Treasury was asked to re-advertise Bid Number: PWRT/1618/13/MP: Maintenance of Telecommunication and related services inclusive of VOIP implementation at all Mpumalanga Provincial Government owned or leased buildings, regional offices, VIP residences and Riverside Government complex for a period of three years.

[12] Following the aforesaid request Bid Number PWRT/1613/13/MP was re-advertised on or about 05 June 2015 with the closing date being 13 July 2015. On or about 13 October 2015 Internet Solutions: Division of Dimension Data (Pty) Ltd was appointed in terms of Bid No. PWRT/1613/15/MP for the maintenance of telecommunication & related services inclusive of VOIP implementation at all Mpumalanga Provincial Government owned or leased buildings, Regional offices, VIP Residences and the Riverside Government Complex (RGC) Nelspruit for a period of 3 years.

[13] On or about 20 November 2015, The Head of Department of Public Works, Roads & Transport, in response to the letter dated 04 October 2015, informed the Head Official: Provincial Treasury that Contract No. PWRT/1613/15/MP was awarded on 13 October 2015 and that the results thereof would be advertised in the December 2015 Provincial Tender Bulletin. On 06 June 2016, the Head of Department of Public Works, Roads & Transport rescinded the appointment of Internet Solutions in respect of Contract No. PWRT/1613/15/MP due to apparent differences between Internet Solutions and the First Respondent who was its teaming partner and whose information was considered for evaluation, adjudication and ultimate appointment of internet Solutions.

[14] Needless to state that the rescission of the appointment of Internet Solutions in respect of Contract No. PWRT/1613/15/MP resulted in further extensions of the contract between the Applicant and First Respondent on a month-to-month basis on the same terms and conditions until a new contract was in place. On 30 April 2019 Ms. SP Xulu, then the Acting Head of Public Works, Roads and Transport requested Provincial Treasury’s approval to re-advertise tender no. PWRT/1613/18/MP: Maintenance of telecommunication & related services inclusive of VOIP implementation at all Mpumalanga Provincial Government owned or leased buildings, Regional District and Circuit offices, VIP Residences and the Riverside Government Complex (RGC) Nelspruit for a period of 3(three) years.

[15] The Applicant stated that the re-advertisement of the said tender was due to its decision to apply a pre-qualification for this bid to advance Exempted Micro Enterprise (EME’s) or Qualifying Small Enterprise (QSE’s) in accordance with paragraph 4(1) of the Preferential Procurement Regulation 2017. On 07 May 2019, Bid Number PWRT/1613/19/MP was re-advertised with the closing date being 19 June 2019. On 14 June 2019, the Applicant advised the Provincial Treasury of the extension of the closing date for tender no. PWRT/1613/19/MP from 20 June 2019 to 3 July 2019 from Provincial Treasury.

[16] In consequence, the tender was published on Volume 277 of Tender Bulletin May 2019. The original closing date was 20 June 2019. The new closing date being 03 July 2019. The Provincial Treasury had on or about 24 June 2019 acknowledged receipt of the letter dated 14 June 2019 in respect of the extension of the closing date for tender no. PWRT/1613/19/MP. Following the bids evaluation On 27 September 2019, the Applicant requested the extension of the tender validity period from the companies that submitted tenders. All the companies, the First Respondent included, accepted the extension on 1 October 2019.

[17] On 8 October 2019, the bid adjudication committee recommended to the Head of the Department of the Applicant that Bid Number PWRT/1613/19 MP be re-advertised because the bid adjudication committee were of the view that the bid specifications were contradictory in that:

17.1 There was no need for a CIDB grading because the Applicant had ICT infrastructure and therefore no construction work was expected;

17.2 Code EP was for the class of works on Electrical Engineering Works-Infrastructure;

17.3 CIDB Level 5 is for a maximum amount of R6 500 000.00;

17.4 Bidders must meet prequalification criteria on EME or QSE; and

17.5 A copy of a valid certificate from ICASA is for product or usage.

[18] On 15 October 2019, the Applicant withdrew Bid Number PWRT/1613/19 MP, which was advertised on May 2019 Tender Bulletin and closed on 20 June 2019. On 5 December 2019, the Applicant requested approval from Provincial Treasury to re-advertise Bid Number PWRT/1613/19 MP. On the day of the closure of the bid on 06 March 2020, the tender receipt certificate, containing tenders that were received and read out to members of the public who were in attendance at the Middelburg Regional office and Riverside Government Complex in Mbombela was disclosed. Of significance for purposes of this judgment is that the name of the Third Respondent was on the list of companies whose names were announced at Middleburg while the name of the First Respondent appeared on Riverside Government Complex list in Mbombela.

[19] On 04 June 2020, The Director: Supply Chain Management sought approval of the Acting Head of Public Works Roads and Transport for the appointment of an ad hoc Bid Evaluation Committee for Bid no. PWRT/1613/19/MP. The approval as sought was granted on 17 June 2020. Subsequently, notification of extension of the tender validity period was accordingly published in the Mpumalanga Provincial Tender Bulletin Volume No. 288 of 15 June 2020. The notification stated that the extension of the validity period was as a result of the pronouncement of the national lockdown that was made by the President.

[20] included in the notification extending the period was tender no. PWRT/1613/19/MP. Moreover, validity of the tenders was extended to 31 August 2020. On 21 August 2020, the Third Respondent was appointed in terms of Bid No. PWRT/1613/19/MP for the installation, maintenance and upgrade of telecommunication & related services inclusive of VOIP implementation at all Mpumalanga Provincial Government owned or leased buildings, Regional, District and Circuit offices, VIP Residences and the Riverside Government Complex (RGC) Nelspruit for a period of 5 years, commencing on 1 October 2020 and terminating on 30 September 2025.

[21] The Third Respondent accepted the terms of the appointment letter in respect of Bid No. PWRT/1613/19/MP on 31 August 2020. The Applicant duly addressed a letter to the First Respondent on 28 September 2020 notifying the First Respondent that the month-to-month contract between the parties would cease to exist on 31 October 2020. The letter also expressly stated that there would be no further extensions from then on.

[22] Additionally, the letter also conveyed to the First Respondent that it was required to commence the handover process of the telecommunication system, government properties, systems, records and equipment generated or acquired during the duration of the contract before 31 October 2020 to avoid disruption of services. On 2 October 2020, the legal representatives of the First Respondent wrote to the Applicant seeking an undertaking by 05 October 2020 that the Mpumalanga Provincial Government would not proceed with its intended cancellation of the agreement with the First Respondent.

[23] The Applicant reverted to the First Respondent on 5 October 2020 indicating that it would not be able to reply within the given time. It proposed to revert within 14 days, the last day of which fell on 20 October 2020. On 7 October 2020, the legal representatives of the First Respondent sent an e-mail message stating that in view of the hand-over date having been scheduled for 30 October 2020, the 14-day period was unreasonable.

[24] The First Respondent then headed to this Court to seek relief on urgent basis that the Applicant be interdicted from denying and/or preventing it from continuing with the provision of telecommunication and related services to all Mpumalanga Provincial Government Departments. The application was enrolled on the urgent roll of this Court on 20 October 2020 on which date it was struck off the roll as aforesaid.

[25] The application having been struck off the roll, on November 2020 The First Respondent switched off the Telecommunication Services to the entire Mpumalanga Province stating that the contract it had with the Provincial Government had lapsed. As such, it regarded itself as having no legal obligation to provide the services stipulated in the contract to the Applicant. On 2 November 2020, Mr M C Morolo, then the Acting Head of the Applicant, held a meeting with representatives of the First and Third Respondents to discuss resumption of telecommunication services and the handover from the First Respondent to Third Respondent. Prior to the commencement of the meeting with both parties, however, the Applicant held a one-on-one meeting with representatives of the First Respondent.

[26] During that meeting, which lasted for 20 minutes, the First Respondent brought up the issue of porting of telephone numbers and costs attendant thereon. The Applicant requested that the telecommunication services must not be disrupted. On resumption of the meeting of the three parties, the Applicant asked the First Respondent to hand over all extension numbers, a list of all the offices/sites it was servicing and to complete the hand over by 3 November 2020. The Respondent was further provided with a handover form issued by National Treasury for the handover of ICT services.

[27] The Applicant further emphasized that the First Respondent ought to keep the telecommunication services of the Provincial Government operational for the duration of the hand over. The Applicant further advised the First Respondent not to port the numbers and that it would not be paid were it to proceed regardless of permission from the Applicant. The First Respondent was also requested to provide a list of all extension numbers that it was holding and to specify the sites.

[28] The Applicant wrote to the First Respondent calling upon it to submit a list of all ICT equipment owned by the Applicant. At the hearing of this matter, the First Respondent had already provided the list but the Applicant was still in the process of reconciling it. The First Respondent restored the communication system after the meeting of 2 November 2020. On 30 November 2020, the First Respondent inquired if their services would still be required. They were directed to continue to render the services until end of December 2020 as the Third Respondent was still setting up.

[29] On 2 December 2020, the First Respondent disconnected all telecommunication services to the Provincial Government, including essential services and the Applicant requested the First Respondent to port the numbers to the Third Respondent to enable the latter to resume rendering services as per their appointment. On the same day, the Applicant received a letter from the Second Respondent informing the Provincial Government of its acquisition of the First Respondent and its intellectual properties. The termination of the services on 2 December 2020 by the First Respondent impelled the Applicant to approach this Court on urgent basis on 6 December 2020 seeking the order described in Paragraph 1 above.

ARGUMENTS

[30] The Applicant, supported by the Third Respondent, concedes that the use of the word, ‘port’, in its papers is inappropriate. Porting of numbers is unattainable outside of the prescripts of the Electronic Communications Act No. 36 of 2005 (“the Act”). Both the First and Third respondents are not license service providers, which makes porting in the sense contemplated in the Act prohibited. The Third Respondent, however, believes that it has a partner with the requisite license such that porting can occur through that means. The Applicant now urges this Court to interpret the employment of the word in the context of the papers to have been intended to convey a meaning other than that envisaged in the Act.

[31] The Court has been urged to direct the First Respondent to relinquish management and control of the numbers to the Third Respondent. At some stage the Third Respondent also made mention of the ‘relay of the numbers to the Third Respondent’. The Applicant and Third Respondent believe that this can be done without offending the provisions of the Act. Against that background, they both suggest that Paragraphs 2.1 and 2.2 of the interim order of 6 December 2020 be amended as follows:

“2.1 The First and Second Respondents are interdicted and restrained from continuing to exert any control over and/or management of telephone numbers (013) 766 000 to (013) 766 9999;

2.2 The First and Second Respondents are directed to relinquish to the Third Respondent full management of telephone numbers (013) 766 000 to (013) 766 9999”.

[32] The Applicant referred this Court to the provisions of Section 173 of the Constitution of the Republic of South Africa which provides that:

“The Constitutional Court, Supreme Court of Appeal and High Courts have the inherent power to protect and regulate their own process, and to develop the common law, taking into account the interests of justice.”

[33] The provisions of Section 173 are couched in a manner as to permit this Court, to ignore the statutory meaning of the word, ‘port’ to protect and regulate its processes for as long as doing so is in the interest of justice. The interest of justice will be realized if the proposed order should be amended in the manner suggested in Paragraph 31 above. I was referred to the Constitutional Court case of Zondi v MEC, Traditional and Local Government Affairs and Others 2006 (3) SA 1 (CC) and the Appellate Division case of West Rand Estates Ltd v New Zealand Insurance Co Ltd 1926 AD 173 at 178

[34] Insofar as the counterclaim of the First Respondent is concerned, both the Third Respondent and the Applicant contended that the application was not urgent or if it is, it was self-created. As such, it should be struck off the roll with costs. Additionally, it should be dismissed on the ground that it lacks merit. A further assertion was that if it is correct that the First Respondent has indeed been acquired by the Second Respondent then it does not have locus standi.

[35] As could be expected, the First Respondent stated that the case made out in the founding papers of the Applicant pertains to number portability. Any deviation therefrom should not be countenanced by this Court. The Applicant and Third Respondent were attempting to make out a different case from that canvassed in the Applicant’s papers. The First Respondent came prepared to meet such case and not what was being presented to Court on 15 December 2020. The order of 6 December 2020 ought to be reconsidered, set aside and dismissed with costs.

[36] Insofar as its counterclaim is concerned, the First Respondent contended that it simply switched-off its services to the Applicant because the Applicant having terminated the contractual relationship, it could not continue rendering a service whose existence was not buttressed by a contract. Besides, while it had rendered services for the months of October and November 2020, it was not paid but instead the Third Respondent who had not provided any services for those months received an amount in excess of R8 Million. The amount that it was claiming represents what it was owed by the Applicant. With regard to locus standi, it maintained that the fact that it had been acquired by the Second Respondent does not divest it of its locus standi. Accordingly, it perceived no difficulty with its locus standi.

ISSUES

[37] The issues are fairly evident from the arguments of the parties described above. Central to this matter is whether or not this Court has authority to vary the order that it granted on 6 December 2020 as described by the Applicant on the ground that it has inherent power to protect and regulate its process and to develop common law whenever it is in the interest of justice. The Court must also consider the urgency of the counterclaim of the First Respondent. If found to be urgent, then to proceed to determine its merits.

LEGAL POSITION

[38] To the extent that this matter revolves around portability of numbers and that the word, portability’ has a specific statutory meaning in the Act, it is important to refer to the definition as set out in the Act. In terms of Section 1 of the Act ‘number portability’ means:

“‘the ability of subscribers to an electronic communications service of persons providing a service pursuant to a license exemption, to retain their existing numbers without impairment of quality, reliability, or convenience when switching from one electronic

communications service licensee to another electronic communications service licensee;”

[39] Unlike in trial proceedings where witnesses can always elaborate and clarify on the evidence contained in a party’s pleadings, papers in motion proceedings are characterised as viva voce evidence. Thus it is important that the affidavits that the parties exchange should contained sufficient detail and particularity

to enable the court and the parties themselves to define and discern the issues with ease. It was in this context that it was held in SWISSBOROUGH DIAMOND MINES (PTY) LTD AND OTHERS v GOVERNMENT OF THE REPUBLIC OF SOUTH AFRICA AND OTHERS 1999 (2) SA 279 (T) that:

“it is trite that in motion proceedings the affidavits serve not only to place evidence before the Court but also to define the issues between the parties. In so doing the issues between them are identified. This is not only for the benefit of the Court but also, and primarily, for the parties. The parties must know the case that must be met and in respect of which they must adduce evidence in the affidavits. In Hart v Pinetown Drive-Inn Cinema (Pty) Ltd 1972 (1) SA 464 (D) it was stated at 469C - E that where proceedings are brought by way of application, the petition is not the equivalent of the declaration

in proceedings by way of action. What might be sufficient in a declaration to foil an exception, would not necessarily, in a petition, be sufficient to resist an objection that a case has not been adequately made out. The petition takes the place not only of the declaration but also of facts as would be necessary for determination of the issue in the petitioner’s favour, an objection that it does not support the relief claimed is sound.

...The facts set out in the founding affidavit (and equally in the answering affidavit and replying affidavit) must be set out simply clearly and in chronological sequence and without argumentative matter: see Reynolds NO v Mecklenberg (Pty) Ltd 1996 (1) SA 75 (W) at 78L.”

EVALUATION

[40] It is settled that a party cannot canvass one case in its papers yet when before court, introduce another which is completely at variance with the papers. This is precisely what the Applicant and Third Respondent are doing. The order that the Court is asked to reconsider is supported by the founding papers of the Applicant. The First Respondent came to Court with the objective of meeting that case. For the Applicant and Third Respondent to suddenly and unexpectedly switch to another case cannot be countenanced.

[41] Number portability has been assigned a particular meaning in the Act. it comes as a shock that the Applicant and Third Respondent did not know or pretend not to have known the statutory meaning. I can accept that they were oblivious of the legal Implications of number portability until they were alerted by the First Respondent. However, it is totally unacceptable that their acquisition of knowledge that the court order would be impossible to execute, they still came to Court to argue for a different relief that is not canvassed anywhere in their papers.

[42] This Court was told that new facts have emerged that require the Court to revisit its order to ensure that it is just and equitable. This is preposterous, the only new facts that have come up since is that the Applicant and Third Respondent got the legal position in this area wrong. As though that was not enough, the Applicant and Third Respondent also referred this Court to cases that bear no relevance to the matter before Court.

[43] To start with the matter of Zondi supra, it is correct of course that this Court has the inherent power to protect and regulate its own process and that in doing so, it has a discretion, which it ought to exercise conscious of the interest of justice in the context of each case. In Zondi, the Constitutional Court was concerned with an issue whether to grant leave to execute or not. It is immediately plain that the case is not analogous with the facts of this matter because in Zondi a case had been made on the founding papers already and the order was not defective.

[44] The issue was whether it would be just and equitable to grant leave to execute whereas In casu, the case made in the papers does not support the relief that is being sought in Court. The Applicant and Third Respondent want this Court to alter the order without any background supporting papers. The provisions of Section 173 of the Constitution in this instance cannot be relied upon to sustain the relief sought by the Applicant and Third Respondent.

[45] In the case of Oosthuizen v Road Accident Fund (258/10) [2011] ZASCA 118 (06July 2011), a case referred to by the Third Respondent as being pertinent In these circumstances, the Supreme Court of Appeal made it clear that A court’s inherent power to protect and regulate its process is not unlimited. Below I quote paragraph 17 of the judgment in full:

“[17] A court’s inherent power to regulate its own process is not unlimited. It does not extend to the assumption of jurisdiction which it does not otherwise have. In this regard see National Union of Metal Workers of South Africa & others v Fry’s Metal (Pty) Ltd where this Court stated that:

‘While it is true that this Court’s inherent power to protect and regulate its own process is not unlimited – it does not, for instance, “extend to the assumption of jurisdiction not conferred upon it by statute”. . . .’”

[46] This case is therefore authority for the proposition that Section 173 is not unlimited in its application. Facts of each case must be examined to determine whether or not it is appropriate to invoke it. The facts in this current matter are simply not suited for the Section and I am at loss why the Third Respondent thought otherwise.

[47] To suggest that the principle stated in the WestRand Estates Ltd case is applicable to this matter is totally disingenuous. The Appellate Division, as it was then, had inadvertently omitted to

include interest when making the order for the successful party. Was it appropriate for it to change its order to include interest?

Without hesitation, the answer is yes. Again, it is important that while the facts in the WestRand Estates case were perfect for the invocation and application of the provisions of Section 173 of the Constitution, it is critical to understand that it cannot apply to all situations indiscriminately. Its application to this matter would be completely misplaced.

[48] Similarly and lastly, the only thing that I find common between the case of Industrial Development Corporation of South Africa v Mohammed Sooliman and Others 2013 (5) SA 603 (SGH) and this matter is that it, like in casu, dealt with Rule 6(12)(c). I fully agree with the case insofar as it articulates the rationale behind Rule 6(12)c). To the extent that the First Respondent has been allowed to file his answering affidavit and that the Applicant has also been afforded opportunity to respond thereto by way of a replying affidavit, there is no difference between the two. Other than as aforesaid, I am at loss why the Third Respondent thought the case is pertinent to this matter.

COUNTERCLAIM

[49] Turning to the counterclaim. Both the Applicant and Third Respondent attack the counterclaim on the ground that there is no urgency or that, if there is, it is self-created. On the merits, it is impugned on the basis that it is the Third Respondent’s attempt to resuscitate the urgent application that was struck off from the urgent roll in October 2020. Thirdly, both the Applicant and Third Respondent questioned the locus standi of the First and Second Respondents.

[50] The issue pertaining to urgency should not detain this Court for long. The First Respondent knew that termination of its services would paralyse the tele-communication system of the Applicant. As such, it knew that the Applicant would be desperate to restore the service. The First Respondent cannot be countenanced to create an emergency with the objective of deriving a benefit therefrom. Understood in that sense therefore the First Respondent is the architect of this whole urgency in which the Applicant finds itself. I agree that the urgency is self-created and that the application should be struck from the roll for that reason.

[51] Even on merits, it is significant to note that the relief sought by the First Respondent is no different from that sought in the October 2020 urgent application. It is correct that the First Respondent is trying to bring back through the back door the same application that was struck off the urgent roll of this Court in October 2020. The counterclaim must be struck off the roll for lack of urgency.

[52] Regarding the locus standi of the First and Second Respondents, I find myself in agreement with the Third Respondent that it is not legally possible for the Second Respondent as a private company to have acquired the whole shareholding of the First Respondent. Firstly, the First Respondent is a close corporation and does not therefore have shares but members’ interest. Secondly, as a private company the Second Respondent cannot be a member of a close corporation. The notion that the Second Respondent has acquired the First Respondent is not true. The First Respondent is, for purposes of these proceedings, the only entity with locus standi.

ORDER:

[53] In the circumstances, I make the following order:

1. The order of this Court dated 6 December 2020 is reconsidered and set aside;

2. The application is dismissed;

3. The counterclaim is dismissed;

4. Each party to pay its own costs.

B A MASHILE

JUDGE OF THE HIGH COURT OF SOUTH AFRICA

MPUMALANGA DIVISION, MBOMBELA

This judgment was handed down electronically by circulation to the parties’ and/or parties’ representatives by email. The date and time for hand-down is deemed to be 10h00 on 28 December 2020.

APPEARANCES:

Counsel for the Applicant:

Adv MS Mphahlele SC

Instructed by:

The State Attorney

Counsel for the First Respondent:

Adv C Erasmus SC

Instructed by:

Swanepoel & Partners Inc

Counsel for the Third Respondent:

Adv J Berger SC

Instructed by:

Edward Nathan Sonnenberg

Date of Hearing:

18 December 2020

Date of Judgment:

28 December 2020