Instrument Transformer Technologies (Pty) Ltd v Eskom Holdings Soc Limited and Others (18623-2020) [2024] ZAGPJHC 375 (16 April 2024)
The applications are moot because the contracts awarded to Actom have been implemented and are due to expire within a month of the hearing. The High Court is precluded from considering the merits of moot applications. The applicant failed to act diligently after Eskom offered to reconsider its bids and persisted...
Source-derived case information.
- Citation
- [2024] ZAGPJHC 375
- Parties
- Applicant: Instrument Transformer Technologies (Pty) Ltd; Respondent: Eskom Holdings Soc Limited; Respondent: Yurisha Pillay; Respondent: Lerato Morife; Respondent: Actom High Voltage Equipment (Pty) Ltd
- Court
- South Gauteng High Court, Johannesburg
- Jurisdiction
- South Africa
- Case Number
- 18623-2020
- Procedural Posture
- Review Application / Judgment
- Outcome
- Applications dismissed as moot. Applicant ordered to pay respondents' costs on an attorney and client scale.
- Judges
- Wright
- Legal Topics
- Tender Review, Mootness, Costs Award
Source-derived case record
Summary, issues, holding and outcome
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Parties
Instrument Transformer Technologies (Pty) Ltd
Applicant
Eskom Holdings Soc Limited
Respondent
Yurisha Pillay
Respondent
Lerato Morife
Respondent
Actom High Voltage Equipment (Pty) Ltd
Respondent
Procedural Posture
Review Application / Judgment
Legal Issues
- 1 Whether the applications to review Eskom's tender award are moot due to the expiry and implementation of the contracts.
- 2 Whether the High Court may consider the merits of a moot application.
- 3 Whether the applicant should bear punitive costs for persisting with the applications.
Ratio Decidendi
The applications are moot because the contracts awarded to Actom have been implemented and are due to expire within a month of the hearing. The High Court is precluded from considering the merits of moot applications. The applicant failed to act diligently after Eskom offered to reconsider its bids and persisted with the litigation unnecessarily. Accordingly, the applications are dismissed and punitive costs are awarded against the applicant.
Court Disposition
Applications dismissed as moot. Applicant ordered to pay respondents' costs on an attorney and client scale.
Orders
- The applications are dismissed.
- The applicant is to pay the respondents’ costs in all three applications, including those of two counsel for the first to third respondents and for the fourth respondent, where so employed, including the costs of the hearing on 15 and 16 April 2024.
Full Case Text
Judgment text and source record
68 paragraphs
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT of south africa
GAUTENG DIVISION, JOHANNESBURG
CASE NUMBER: 2020/18623; 2020/18624 & 2020/18626
1. Reportable: No
2. Of interest to other judges: No
3. Revised
16 April 2024
In the matter between:
INSTRUMENT TRANSFORMER TECHNOLOGIES (PTY) LTD Applicant
and
ESKOM HOLDINGDS SOC LIMITED
1st Respondent
YURISHA PILLAY
2nd Respondent
LERATO MORIFE
3rd Respondent
ACTOM HIGH VOLTAGE EQUIPTMENT (PTY) LTD
4th Respondent
JUDGMENT
WRIGHT J
[1] There are three related applications before me. While there has been no formal consolidation, it is common cause that the applications effectively cover the same territory.
[2] The first respondent, Eskom called for tenders relating to the supply of certain equipment to Eskom. The successful tenderer was Actom, the fourth respondent. Instrument, an unsuccessful tenderer is the applicant. The second and third respondents, Ms Pillay and Ms Morife work for Eskom and were involved in the tendering process.
[3] On 29 July 2020, Instrument launched a review application. It sought to review the decision by Eskom to disqualify it from the tender process and it sought to set aside the award of the tender to Actom.
[4] On 4 August 2020 Instrument sought to amend its notice of motion to add a prayer for an order that part of the award to Actom be reconsidered by Eskom.
[5] It is common cause that three contracts, each for a period of four years, were awarded to Actom consequent upon its successful tender. It is further common cause that these contracts end on 14 May 2024, that is one month from the second day of the hearing of this matter, today 16 April 2024.
[6] It is thus beyond doubt that the applications are moot. The contracts have been implemented. It would be unwise to attempt to reverse the flow of the water which has passed under the bridge.
[7] Because the three applications are moot, a High Court may not consider the merits of the application further. See Solidariteit Helpende Hand NPC and others v Minister of Co-operative Governance and Traditional Affairs 2023 JDR 0964 ( SCA ) 31 March 2023 at paragraphs 18-21.
[8] Regarding costs, the present applications were launched about two months after the three contracts had been agreed. It seems trite that, other things being equal, the longer such contracts are in existence and are implemented, the stronger becomes the case for mootness.
[9] As early as 25 November 2020, some four months after the applications had been launched, Eskom, through its attorney offered to have Eskom reconsider Instrument’s bids. There is some suggestion that this letter may originally have been part of settlement negotiations and might have been privileged for that reason. However, this letter was placed before court by Instrument so it cannot contend that I may not take it into account.
[10] Instrument, instead of diligently working with Eskom to go about a reconsideration by Eskom, dragged its feet in prosecuting these applications. Instrument persists with its applications, as late as today, 16 April 2024. Punitive costs follow.
[11] The time between the launching of the applications and the letter of 25 November 2020 is so short that in the circumstances of this matter it does not play an appreciable part in the question of costs.
ORDER
[1] The applications are dismissed.
[2] In all three applications the applicant is to pay the respondents’ costs, including
those of two counsel, both for the first to third respondents and for the fourth
respondent, where so employed, including the costs of the hearing on 15 and 16
April 2024.
[3] All costs to be on the scale as between attorney and client.
JUDGE OF THE HIGH COURT
Heard on:
15 and 16 April 2024
Delivered on: 16 April 2024
Appearances:
Applicants:
Adv Phazha Jimmy Ngandwe
076 248 0368
Ngandwepj@gmail.com
Adv Keneilwe Lefaladi
064 750 7905
keneilwe@lefaladi.co.za
Instructed by: Monyemorathoe Attroenys Inc
gideon@monyemorathoe.co.za
082 332 5585
1st - 3rd Respondents: Adv AD Stein SC
072 395 5559
astein@group621.co.za
Adv Michelle Augustine
083 382 3790
augustine@alumni.nd.edu
Instructed by: Cheadle Thompson Heyson Inc
011 403 2765
Karien@cth.co.za
4th Respondent Adv A Friedman
Adv D Sive
Instructed by Norton Rose Fulbright
J Bell
John.Bell@nortonrosefulbright.co.za