Minister of Justice and Correctional Service and Another v Mmela Investment Holdings (Pty) Ltd (46825/2017) [2017] ZAGPPHC 420 (2 August 2017)

IN THE HIGH COURT OF SOUTH AFRICA

(GAUTENG DIVISION, PRETORIA)

Case number: 46825/2017

Date: 2/8/17

Reportable

Not of interest to other judges

Revised.

In the matter between:

THE MINISTER OF JUSTICE AND CORRECTIONAL

SERVICE FIRST APPLICANT

DIRECTOR GENERAL OF THE DEPARTMENT OF

JUSTICE AND CONSTITUTIONAL DEVELOPMENT

SECOND APPLICANT

And

MMELA INVESTMENT HOLDINGS (PTY) LTD

RESPONDENT

JUDGMENT

PRETORIUS J,

INTRODUCTION:

(1) In this urgent application the applicants request the Court to grant the following orders, as set out in the Notice of Motion:

"2. THAT the Respondent be and is hereby ordered to:

2.1 commence hand over of all hard copy case files stored in boxes at the off-site facility/facilities of DOCU-FILE resulting from the off-site storage project under RFB 2007 11B to the Applicants, or their duly designated and appointed officials and/or agents, within 5 days of date of this order and at a rate that is determined by the Applicants;

2.2 hand over all project related documentation and/or electronic data and back-up tapes and licences regarding the off-site storage project under RFB 2007 11B in their possession to the Applicants, or their duly designated and appointed officials and/or agents, within 5 days of date of this order."

And an order that the respondent pay the costs.

(2) The respondent opposed the application on the grounds that the urgency alleged by the applicants is self-created and that the court should not entertain the matter on an urgent basis.

PARTIES:

(3) The first applicant is the Minister of Justice and Correctional Services, the designated functionary at the head of the Department of Justice and Constitutional Development. The second applicant is the Director General of the Department of Justice and Constitutional

Development and is cited as the administrative functionary in charge of the Department ("the Department").

(4) The respondent is a company, working in the private sector. The respondent is storing 6 000 000 archived files in boxes, that belong to the Department, at an entity known as Docu-File.

BACKGROUND:

(5) The Department has a constitutional mandate to store and protect thousands of documents lodged by the public, or on behalf of the public. These documents are those commencing legal action and include all documents pertaining to actions, motion proceedings and criminal proceedings. The Departments serves as a repository to these files and has an administrative function to ensure that proceedings reach finality and that justice is dispensed.

(6) The efficiency of the Department depends on the ability to access documents that have been filed at the various courts and to provide reasonable access of these documents to members of the public, when required. The Department has to retain active, as well as inactive files. The Department receives requests for access to these files on a daily basis.

(7) The Gauteng Division of the High Court (Pretoria) is the busiest division in South Africa and the number of cases have increased from 35 000 new cases in 2000, to 74310 cases in 2012, 98150 in 2016 and in 2017 a total of 46 229 cases have been opened, thus far. The case load in Pretoria has thus tripled from 2000. Storage space for these files ran out and off-site storage had to be implemented.

(8) After a bidding process the Department and the Respondent entered into a Service Level Agreement ("SLA") on 29 November 2011 for the supply, installation and deployment of a court records off-site storage solution to certain courts nationally for all archived court cases and records.

(9) Phase 1 of the project entailed the roll-out of the project to the following courts:

"South Gauteng High Court (now called Gauteng Local Division, Johannesburg); North Gauteng High Court (now called Gauteng Division, Pretoria); Cape Town High Court (now called Western Cape Division); Johannesburg Magistrate's Court; Durban Magistrate's Court."

(10) The commencement date was 18 October 2010 for a period of five years. The respondent had to provide:

"7.2.5.1 the development and installation of a Document Management System (or "DMS”) which is defined as the "'Xerox Corporation Docushare Software" and all the blue print processes as implemented by the Contractor for the DoJ & CD”;

7.2.5.2 provision of off-site storage facilities for the records;

7.2.5.3 scanning and imaging of court records into electronic media;

7.2.5.4 provision of back up electronic copies of the court records that will be stored off-site as part of disaster recovery management;

7.2.5.5 archiving of both electronic filed (other than audio files) and physical copies in accordance with the National Archives of South Africa Act No 43 of 1996 ("NARS Act'), as amended;

7.2.5.6 management of document retrieval and availability in accordance with section 7(1) of the Magistrate Courts Act 32 of 1944, the Supreme Court Act 50 of 1959 (now the Superior Courts Act 10 of 2013 read with the Electronic Communications and Transactions Act 25 of 2002."

(11) The respondent was tasked to collect the court files from the identified courts for the specific phases of the project. These court files would then be taken to the respondent's operational centres and the content of each court file would be scanned and those images uploaded onto a server at that court and a back-up made, which had to be kept in a vault by the respondent. Each such court file would then be given a barcode and would be put into a Docu-file box. Docu-file was appointed by the respondent to act as the Respondent's storage facility. Each box containing the court files would also have a specific barcode with a list of the contents of each box.

(12) The SLA was extended on 16 October 2015 to 17 October 2016 by agreement. On 17 October 2016 a letter was sent to the respondent,

setting out that the contract had terminated on 17 October 2016. The letter once more drew the attention of the respondent to paragraphs 2 and 3 of the letter of 16 October 2015 which provided:

"2. This extension should not be construed as an indication that the Department intends to award the new contract to your entity, or that any legitimate expectation is being created by the Department that the contract would be renewed past the above mentioned specified period.

3. The parties agreed that neither will have any further recourse against each other as regard (sic) the original bid (extension excluded)."

It was thus clear from 16 October 2015 that the contract would expire on 17 October 2016.

(13) It was further set out in the letter of 17 October 2017 that the applicants would collect the files from the respondent at a mutually agreed date and time. The respondent was in possession of the hard copy files, as well as the electronic data and the back-up of these, which were kept in a vault by the respondent.

(14) On 9 December 2016 a further letter was sent to the respondent and the respondent was once again requested to hand over the files belonging to the Department. The respondent is being paid storage costs of R559 752.00 per month and has already been paid in excess of R4 million up to the end of June 2017. These payments will only end when the files have been handed over to the new entity.

(15) A new tender was awarded to Metrofile as from 3 April 2017. Metrofile cannot collect the boxes, as the respondent refuses to hand them over. The result is that no Department officials have access to files, servers, software and the electronic copies of the court records that had been scanned by the respondent. The server in the Gauteng Division, Pretoria had crashed in October 2016 and the result is that there is no electronic access to any of the files. The Department cannot fix the problem with the servers as the passwords were not provided by the respondent to the Department and the respondent steadfastly refuses to provide the relevant passwords.

(16) The respondent has steadfastly refused to release these files, documents and back-ups until the Department pays the respondent

retrieval costs. The retrieval costs in the SLA do not cater for hand­ over and removal of all 6 million boxes, but relate to retrieval of files on a case-by-case basis. The amount the respondent insists the Department has to pay is in excess of R84 million. This attitude of the respondent of, take it or leave it, lead to the present urgent application.

URGENCY:

(17) The respondent avers that the delay in instituting proceedings causes the matter not to be urgent. The argument is that the applicants had known from October 2016 that the contract had lapsed and failed to take steps to rectify the situation.

(18) The provisions of Rule 6(12) of the Uniform Rules of Court govern urgent applications. It makes provision for the court to dispense with the forms and service provided for by the Rules.

(19) In East Rock Trading 7 (Pty) Ltd and Another v Eagle Valley Granite (Pty) Ltd and Others[1] the Court dealt with the requirement set out in Rule 6(12) which provides that an applicant "...shall set forth explicitly the circumstances which he avers render the matter urgent and the reasons why he claims that he could not be afforded substantial redress at a hearing in due course."

(20) In East Rock[2] it was decided in paragraph 8:

"In my view, the delay in instituting proceedings is not, on its own, a ground for refusing to regard the matter as urgent. A court is obliged to consider the circumstances of the case and the explanation given. The important issue is whether, despite the delay, the applicant can or cannot be afforded substantial redress at a hearing in due course. A delay might be an indication that the matter is not as urgent as the applicant would want the court to believe. On the other hand a delay may have been caused by the fact that the applicant was attempting to settle the matter or collect more facts with regard thereto."

This court has to decide whether the applicants will be afforded substantial redress at a hearing in due course. To be able to do so I have to consider the circumstances and explanation in this case.

(21) In this application the applicants dealt with urgency under a separate heading, setting out facts that would make the matter urgent in their view. The applicants have been constantly trying to resolve the matter in an amicable manner, by correspondence and various meetings. Certain settlement proposals had been made, to no avail.

(22) On 2 May 2017 a meeting was held between the parties to once more resolve the issue. Thereafter a financial proposal was furnished to the applicants, setting out that a payment of R84 302 782.49 would secure the release of the boxes containing the 6 million files. On 19 June 2017 it became clear that the respondent's stance was that either the Department pays the amount set out, or it retains all the files. Hence the urgent application.

(23) It was set out in the affidavit by the Department that not only the members of the legal profession, but the public at large, are inconvenienced by not being able to access the court files. Original marriage certificates, divorce orders and settlement agreements

cannot be accessed, which have a personal effect on a great number of the general public. All the files from 1987 to 2010 are inaccessible,

as well as some files from 2010 to 2015 which have been stored off­ site. There is a list of pending requests for court files and a letter from an attorney complaining that the attorneys cannot obtain divorce orders, as requested by their clients, due to the impasse reached between the Department and the respondent. It is stated by the Department that the office receives between 30 and 50 requests for files daily, which cannot be dealt with as a result of the inaccessibility of the court files.

(24) The respondent maintained throughout that the applicants are liable for the retrieval of the court files from the off-site storage facility at a price. The solution suggested by the respondent is that the applicants continue paying an amount in excess of R562 000.00 per month in respect of storage of the 6 million court files and pay for ad hoc retrieval of files, until the dispute between the parties has been resolved. It is clear that the costs to retrieve files one by one will be prohibitive and amount to much more, than handing over all 6 million files to Metrofile.

(25) In a letter, dated 5 July 2017, the respondent conceded:

"Further, we note and confirm the importance and urgency in making the court files available to members of the public and it is in consideration of this importance that our client has made great efforts to continuously engage your client in an attempt to resolve this matter. We submit that your client has failed to exercise the same degree of consideration. Your client's conduct in not treating this matter with the requisite urgency and attention, has undermined its constitutional mandate of access to justice. In so doing, your client has also placed our client's good name and reputation at risk."

(26) It is so that this application would only be heard in the ordinary course during the first term of 2018. The respondent is of the view that this Court should not entertain the application, due to a lack of urgency as the contract had already expired in October 2016.

(27) I agree that the delay in instituting proceedings cannot be the only criteria for a court to refuse to hear a matter as urgent. There may be valid reasons for the delay by the Department.

(28) In the present instance the Department has been trying to settle the matter since October 2016 through correspondence and meetings, to no avail. It is the State's constitutional duty to provide these services to the public. As a result of the respondent's stance the Department is inconvenienced and cannot deliver the service to the general public. I have taken note of the letter of 5 July 2017 wherein the respondent's attorneys concede that the matter is urgent and important. It is not only in the interest of the Department, but more so in the interest of justice and public interest that the files be delivered as soon as possible. Therefor I find the application to be urgent.

(29) It is common cause that this court should not make any finding on the parties' contractual relationship. Although there is a dispute between the parties concerning the price for the removal of the case files, this dispute can be resolved by instituting action against the applicants or by any other means.

(30) The Department had tendered the "industry norm" for the permanent retrieval of the files, which was unacceptable to the respondent. In the meantime the applicants are still paying in excess of R500 000 per month storage for the files. The respondent further conceded:

"176. Moreover, this Court is not tasked with making any finding of the interpretation of Annexure E or pronouncing on the parties' contractual rights.

177. This Court is therefore also not competent to make a pronouncement that the applicants are entitled to determine the costs involved in retrieving the files from storage. Such finding will severely prejudice the respondent in their claim against the applicants ..."

It is clear that these issues would form the subject of further litigation at a later stage between the parties, should they not come to an agreement.

(31) I must agree that the prejudice suffered by the applicants is ongoing as the Department is unable to fulfil its mandate towards the public. Each day that this state of affairs continues, members of the public are prejudiced as they do not have access to final divorce orders for pension pay outs, re-marriage, transfers of immovable property and criminal records are not available to enable persons to lodge appeals.

(32) It is unconscionable that the public has to suffer due to an ongoing dispute between the two parties. Furthermore, it is clear that the dispute will be resolved at a later stage in another appropriate forum, according to the respondent. There is currently no contract or agreement between the parties, but the respondent's actions forces the Department to continue to pay for storage and to uphold a relationship with the respondent in an artificial manner.

(33) There is no end in sight to the dispute as the respondent has not yet instituted action, which counsel for the respondent conceded was being considered. Such an action could lead to litigation that may proceed for years. Will the public have to wait for such an action to be finalized? That can never be the answer under these circumstances.

(34) It is imperative that the files be handed over by Docufile to Metrofile as soon as possible. The current inconvenience and failure to be able to deliver to the public by the Department must be ended immediately.

AMENDMENT:

(35) The applicants applied for an amendment to the Notice of Motion by adding the following prayer:

"2.3 place the applicants in possession of:

2.3.1 an itemised list of the boxes with their box numbers as stored by them or on their behalf with DOCU-FILE; and

2.3.2 an itemised list of the content of each box which include either the case number of each file stored in each box or the bar code number of each file so stored."

(36) The reason for this added prayer is that the respondent refuses to hand over the electronic data as, according to the respondent, it poses a threat to its intellectual property. The Department therefor requires a physical itemised list of all the boxes containing the box numbers and itemized list of contents of each box. This will protect the intellectual property of the respondent. It is so that the Department has access to the vaults where the electronic data is stored on back-ups but the respondent refuses to give the passwords to access these back-up tapes to the Department's representative. Therefor the electronic data cannot be restored at the relevant courts and is for all purposes totally inaccessible.

(37) According to the Department, as set out in the replying affidavit:

"3. 15 The Department requires the respondent to hand over the back-ups, in a format that the Department can access with the assurance that the back-ups contain all the images that were scanned from each file collected from the relevant court and stored under RFB 2007 11. This is the only recourse that the Department has against the respondent. The fact that the respondent refuses to comply is puzzling. "

(38) Due to the respondent's reaction to the request for the electronic back­ ups, it is quite clear that it was necessary for the applicant to amend its Notice of Motion, to enable it to have a proper handover of the relevant files, without the electronic

back-up. It is prudent to have a contingency plan in place whereby the handover to Metrofile could take place in an orderly manner.

Metrofile has estimated that the handover and removal of the boxes will take approximately four months. Therefor I grant the amendment

as requested by the applicant.

(39) Although the respondent claims that it has a lien over the files, it acknowledges "the importance and urgency in making the court files available to members of the public ..." It is not clear from the answering affidavit whether the respondent relies on an enrichment or debtor-creditor lien. In these circumstances it is important as the original contract, which had lapsed in October 2016, had been paid. An amount of R300 million had been paid to the respondent by October 2016 and thereafter payment continued for the storage of the files. The basis for the respondent's reliance on a lien cannot be ascertained from the answering affidavit. Due to a paucity of information in this regard this court cannot make a finding that the respondent's reliance on a lien is proven.

(40) The respondent cannot, in effect, extend the Service Level Agreement , by holding the Department, and the public at large, hostage by refusing to hand over the 6 million files.

(41) Having read the papers, listened to the arguments and having decided the application is urgent, it is clear that these files should be returned to the Department to enable the public to have access to important documents. It will also enable the Department to carry out its constitutional mandate to assist the public, as it has been tasked to do.

(42) In the result I make the following order:

1. The amendment to the Notice·of Motion is granted;

2. The respondent is ordered to:

2.1 commence hand over of all hard copy case files stored in boxes at the off-site facility/facilities of DOCU-FILE resulting from the off-site storage project under RFB 2007 11B to the Applicants, or their duly designated and appointed officials and/or agents, within 5 days of date of this order and at a rate that is determined by the Applicants;

2.2 hand over all project related documentation and/or electronic data and back-up tapes and licences regarding the off-site storage project under RFB 2007 11B in their possession to the Applicants, or their duly designated and appointed officials and/or agents, within 5 days of date of this order;

2.3 place the applicants in possession of:

2.3.1. an itemised list of the boxes with their box numbers as stored by them or on their behalf with DOCU-FILE; and

2.3.2. an itemised list of the content of each box which include either the case number of each file stored in each box or the bar code number of each file so stored.

3. The Respondent is ordered to pay the costs of this application which shall include the costs consequent upon the employment of two counsel being one senior and one junior counsel.

_____________________

Judge C Pretorius

Case number : 46825/2017

Matter heard on: 25 July 2017

For the Applicant: Adv B Neukircher SC

Adv L Maite

Instructed by: State Attorney, Pretoria

For the Respondent: Adv PR Long

Instructed by: 8 Xulu & Partners Inc

Date of Judgment: 2 August 2017

[1] [2012] JOL 28244 (GSJ)

[2] Supra