Samex Consulting (Pty) Ltd v Department of Roads and Public Works Northern Cape (2101/2021) [2022] ZANCHC 68 (28 October 2022)

Samex Consulting (Pty) Ltd v Department of Roads and Public Works Northern Cape (2101/2021) [2022] ZANCHC 68 (28 October 2022)

The court found that the Mamosebo J order was valid and enforceable, as the underlying agreement contained a dispute resolution mechanism sufficient to avoid the pitfalls of an unenforceable 'agreement to agree.' The respondents failed to challenge the order by appeal or review and were bound to comply. The department's appointment of Mekan Engineering during the subsistence of the order constituted a partial wilful breach, as the order specifically interdicted appointing another service provider pending agreement on terms of reference. The respondents' claim of necessity was rejected due to lack of evidence that Samex was incapable of performing the required work. The court distinguished...

Citation
[2022] ZANCHC 68
Parties
Applicant: Samex Consulting (Pty) Ltd; Respondent: Department of Roads and Public Works: Northern Cape; Respondent: Acting Head of the Department Northern Cape; Respondent: Ramona Grewan; Respondent: Chief Financial Officer Works: Northern Cape; Respondent: MEC: Department of Roads and Public Works Northern Cape; Respondent: Fufe Makatong
Court
Northern Cape High Court, Kimberley
Jurisdiction
South Africa
Judgment Date
28 October 2022
Case Number
2101/2021
Procedural Posture
Contempt Application / Judgment After Hearing on Merits
Outcome
Application for contempt partially succeeds; respondents found in wilful breach of the Mamosebo J order, with coercive orders issued for compliance and punitive costs awarded.
Judges
Phatshoane
Legal Topics
Civil Contempt of Court, Enforcement of Court Orders, Contractual Dispute Resolution, Public Procurement, Pacta Sunt Servanda
Civil Procedure Administrative Law Civil Contempt of Court Enforcement of Court Orders Contractual Dispute Resolution Public Procurement Pacta Sunt Servanda

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Parties

Samex Consulting (Pty) Ltd

Applicant

Department of Roads and Public Works: Northern Cape

Respondent

Acting Head of the Department Northern Cape

Respondent

Ramona Grewan

Respondent

Chief Financial Officer Works: Northern Cape

Respondent

MEC: Department of Roads and Public Works Northern Cape

Respondent

Fufe Makatong

Respondent

Procedural Posture

Contempt Application / Judgment After Hearing on Merits

Legal Issues

  1. 1 Is the Mamosebo J order of 23 November 2021 binding and enforceable despite respondents' claims of unlawfulness?
  2. 2 Did the respondents act wilfully and in bad faith in failing to comply with the Mamosebo J order, particularly by appointing another service provider?
  3. 3 Are all cited respondents personally complicit in contempt, or only certain officials?

Ratio Decidendi

The court found that the Mamosebo J order was valid and enforceable, as the underlying agreement contained a dispute resolution mechanism sufficient to avoid the pitfalls of an unenforceable 'agreement to agree.' The respondents failed to challenge the order by appeal or review and were bound to comply. The department's appointment of Mekan Engineering during the subsistence of the order constituted a partial wilful breach, as the order specifically interdicted appointing another service provider pending agreement on terms of reference. The respondents' claim of necessity was rejected due to lack of evidence that Samex was incapable of performing the required work. The court distinguished...

Court Disposition

Application for contempt partially succeeds; respondents found in wilful breach of the Mamosebo J order, with coercive orders issued for compliance and punitive costs awarded.

Orders

  • The Department of Roads and Public Works, Northern Cape, must comply with the consent order of 23 November 2021 within 30 days.
  • If the department fails to comply, the applicant may approach the court for further relief, including a declaration of contempt against the respondents and current HOD.