Tsentsa Construction (Pty) Ltd v Impala Platinum Mine - Rustenburg (UM 149/23) [2023] ZANWHC 149 (24 August 2023)

SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and

SAFLII Policy

IN THE HIGH COURT OF

SOUTH AFRICA

NORTH WEST DIVISION -

MAHIKENG

UM 149/23

Reportable: YES / NO

Circulate to Judges: YES / NO

Circulate to Magistrates:

YES / NO

Circulate to Regional Magistrates: YES/NO

In the matter between:

TSENTSA CONSTRUCTION (PTY) LTD

APPLICANT

And

IMPALA PLATINUM MINE- RUSTENBURG

RESPONDENT

REASONS

FOR JUDGMENT

REDDY AJ

INTRODUCTION

[1] After hearing, this urgent application, it was struck from the roll for the lack of urgency, with the applicant to pay the costs. Peculiarly, a request for reasons for the order was filed, notwithstanding, the reason for the striking off the application being inherent in the ipsit dixsit of the Court order.

[2] The applicant sought the following relief in urgent court:

1. That this matter be heard as an urgent application as envisaged in rule 6(12) of the Rules Court and that the ordinary process of service, time and filing of documents be dispensed with.

2. Declaring that there exists a valid contract between the Applicant and Respondent in respect of the following Purchase Orders

2.1. Purchase Order number 4502518280

2.2. Purchase Order number 4502518291

2.3.1 Purchase Order number 4502518286

3. That the terms and conditions of the General Conditions of Rev.2 in respect of Purchase Order number 4502518280 are declared valid and enforceable

4. That the terms and conditions of the General conditions of Contract Rev.2 in respect of Purchase Order number 4502518291 are declared valid and enforceable.

5. That the terms and conditions of the General conditions of Contract Rev.2 in respect of Purchase Order number 4502518186 are declared valid and enforceable.

6. That the Respondent is hereby ordered to pay the Applicant the amount of R 2002 927.82.

7. Costs of the application on attorney and client scale.

8. Further and/or alternative relief.

[3] The opposed relief was struck from the roll due to lack of urgency on 26 July 2023. A request for reasons as envisaged in terms of Rule 49(1)(c) of the Uniform Rules of Court was served before me on 7 August 2023. In compliance thereto, I set out my reasons succinctly.

The Parties

[4] The applicant is Tsentsa Construction (Pty) Ltd, a company registered in terms of the laws of the Republic of South Africa, with its registered business address at 1[…] F[…] P[…] Extension 1, Rustenburg, North West Province.

[5] The respondent is Impala Platinum Limited, also a company duly registered in terms of the laws of the Republic of South Africa with its registered address at Farm B[…] 2[…] J[…] District of Phokeng, Impala Platinum Stores, North West Province.

Background facts

[6] The applicant is a listed company on the respondent’s data base to be contacted by the respondent for inter alia various constructions on its property or the supply of services. To achieve this end, it is standard practice for the respondent to outsource, allocate and thereby contract with its identified contractors. On the selection and appointment of a service provider, the respondent would transmit a purchase order to same.

[7] On or about 25 June 2021, the respondent acting in accordance with practice, transmitted three purchase orders to the applicant. On 14 September 2021, the material and essential specialized equipment to fulfil the contract, was purchased. The applicant was to be responsible for the storage costs of same.

[8] On 24 January 2022, internal email correspondence of the respondent suggested that the applicant had cancelled the contract. The respondent immediately communicated with the applicant to dispel the communication averring the cancellation of the contract and reaffirmed that the terms of the contract would be completed. The applicant was reassured that the contract would not be cancelled. There appeared to be some hostility between the applicant and respondent post the “cancellation “of the contract.

[9] On 10 February 2022, a letter was authored by the applicant, accenting that the individual who had sent correspondence cancelling the contract, had no authority to do same, further thereto, the applicant had every intent to realise the contract. There was no retort from the respondent, but the applicant was telephonically referred to the respondent’s employees to resolve the matter. During the year 2022, the respondent only communicated to the applicant through the medium of telephonic communication. The assurance from the respondent throughout was that this issue would be resolved.

[10] The applicant subsequently learned that the projects, it was to complete, was allocated to another company or companies. After innumerable telephone calls only in April 2023, did the respondent request a backdrop to the matter. The applicant acquiesced. After a plethora of emails, the applicant was invited to a virtual meeting scheduled for the beginning of May 2023. The result of the meeting was that the matter would be escalated to the respondent’s legal department.

[11] The timeline is best exemplified by the applicant who states as follows:

“7.17 After weeks of waiting for the respondent’s legal department to formally contact the applicant, and only after the applicant requested to follow up, the respondent’s legal department contacted the applicant through the telephone and stated that it will contact the applicant within two(2) days, again through telephone for the respondent to explain the history of the matter from January 2022.

7.18. I interpose to state that the applicant had clearly stated its case to the respondent since it became aware of the purported letter of cancellation and therefore in its view, the applicant concluded that the respondent is merely delaying the finalization of this matter by constantly sending the applicant from pillar to post with no progress.

7.19 Consequently the applicant sought legal representation and on 25 May 2023 the applicant’s legal representative wrote a letter of demand to the respondent…

7.20. On the 12 June 2023 the respondent replied to “ GT10” ( the letter of demand) and the respondent in its letter denies that allegations made in annexure “GTA 10”, however suggest that the respondent is willing to discuss the matter in more detail. Attached is the letter from the respondent marked as Annexure “GTA 12”.

7.21. On the 19 February 2023(should read 19 June 2023) a further letter was sent to the respondent with the intention to curtail the issue of the individual that sent the letter purporting to cancel the contracts raised in “GTA 11”. But, as well as to enquire the possible resolution of the matter since the respondent is willing to discuss the matter in detail. Annexed is the letter marked as annexure “GTA 12.”

7.22. The applicant is advised, through its legal representative, that initially the respondent intended to reply to annexure “GTA 12” and that it would not be doing so due to some information at the respondent’s disposal.”

7.23. Upon enquiry, it was determined that the respondent has no intention to resolve this matter which it created unto itself and therefore the applicant instructed its attorneys of record to bring this urgent application.”

[12] In the founding affidavit, the applicant does not deal adequately with the legal issue of whether the applicant would be able to secure substantial redress in due course.

Urgency

[13] Dealing with the peremptory requirement in terms of Rule 6(12)(b) of the Uniform Rules of Court(“ the Rules”) that the applicant must set forth explicitly the circumstances which is averred that render the matter urgent and the reasons why the applicant claims that the applicant could not be afforded substantial redress at a hearing in due course, the applicant asserts the following:

“11.1 The Constitution guarantees equal participation in the economy of the Republic of South Africa and therefore no one ought to be deprived of his or her right to trade or conduct business or to be deliberately put in a financial position to which is prejudicial, unfair and signifies business malpractice.

11.2 As a result of the respondent the applicant not only acquired a loan to perform its projects in terms of the purchase orders, it also incurred monthly storage fees as a result.

11.3 The applicant continues to incur monthly interest on the loans it took in order to fulfil its obligations under the contracts. Further, the applicant suffers monthly rental of R4 000.00 in storage fees of the material that the respondent required and demanded in terms of the contracts.

11.4 Consequently, the applicant is financially constrained to accept any further work due to the fact that it would not be able to secure any further credit without worsening its debt.

11.5 Therefore, the applicant is need of in urgent financial relief to enable it to trade as enshrined in the Constitution of the Republic of South Africa.

11.6 The urgency is caused by the respondent’s conduct since the inception of this matter. It is the applicant’s submission that had the respondent confirmed to the applicant in writing whether in January 2022 or February 2022 that the purchase orders are cancelled, the applicant would have brought this application sooner.

11.7 Instead, the respondent for a period of more than a year conducted itself in a manner which suggested that the matter would be resolved and that the applicant would be compensated.

11.8 The respondent was only able to pronounce on its position on the 12 June 2023 and on the 26 June 2023 that it will not be responding to the letter by the applicant’s attorneys sent on the 19 June 2023.

11.9 Now that the respondent has pronounced itself regarding this matter, the applicant is exposed to legal action from its creditors because they were made aware of any developments between the applicant and the respondent. The applicant could only hold off any legal action against it by its creditors by informing them that the respondent is attending to the matter, which the applicant genuinely believed that it did.

11.10 The applicant will suffer serious harm should the court not adjudicate this matter on an urgent basis.

11.11 As result the applicant approaches this court for relief on urgent basis because there is no any other remedy available to the applicant and should this matter be heard on the normal court roll, the applicant would have become liquidated by its creditors and therefore its rights against the respondent would fall through.

11.12 I highlight that the applicant was ready to perform all contracts, but due to the respondent’s negligence and wrongfulness in preventing performance by the applicant, abandonment of the contracts and accepting a clearly invalid cancellation letter, the applicant to date suffers economic loss.”

THE LAW

[14] The legal principles governing urgency is set out in Rule 6(12) of the Rules . The Courts have over the years provided guidelines as to the application of this Rule. Rule 6(12)(a) confers a discretionary power on a Court seized with an application of this nature to dispense with the forms and service envisaged in the Rules and to dispense of the application at such time and place and in a manner that prescribes the procedure as it deems appropriate. The preliminary enquiry is aimed at the determination of whether there must be a departure at all from the usual process. (See Luna Meubel Vervaardigers v Makin and Another 1977 (4) SA 135 (W) at 136H-137F).

[15] In Hultzer v Standard Bank of SA (Pty) Ltd (1999) 20 ILJ 1806(LC) at 1809 the following was stated:

“The court will, however, only grant such relief where an applicant is able to persuade the court that extremely cogent grounds for urgency exist.”

[16] Rule 6 (12)(b) renders it peremptory for the applicant to “set forth explicitly the circumstances which is averred render the matter urgent and the reasons why the applicant claims that substantial redress could not be afforded at a hearing in due course.”

[17] In East Rock Trading 7 (Pty) Limited and Another v Eagle Valley Granite (Pty) Limited and Others 2011 ZAGPJHC 196, at paragraph [6] the following was stated:

“The import thereof is that the procedure as set out in Rule 6(12) is not there for the taking. An applicant has to set forth explicitly the circumstances which he avers render the matter urgent. More importantly, the applicant, must state the reasons why he claims that he cannot be afforded the substantial redress in due course. The question of whether a matter is sufficiently urgent to be enrolled and heard as an urgent application is underpinned by the issue of the absence of substantial redress in the application in due course. The rules allow the court to come to the assistance of a litigant because if the latter were to wait for the normal course laid down by the rules, it will not obtain substantial redress….”

Discussion

[18] The test for urgency is whether the applicant can or cannot be afforded substantial redress at a hearing in due course. See Minister of Water Affairs and Forestry v Stilfontein Gold Mining Co Ltd and Others 2006 (5) SA 333 (W), IL and B Marco Caterers (Pty) Ltd and Another 1981 (4) SA 108 (C) at 110F-111A.

[19] The timelines as set out by the applicant irrefutably sets out that the applicant was maladroit in approaching the court for relief on an urgent basis. This notwithstanding the applicant’s own concession, that the respondent had no intent on addressing the contract that the applicant contends existed. The doors of the court will not be closed simply due to amongst others ineptitude of the applicant to act. There may be a surfeit of plausible reasons justifying same.

[20] In East Rock Trading 7 supra the following was posited regarding urgency:

“[ 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.

[9] It means that if there is some delay in instituting the proceedings an Applicant has to explain the reasons for the delay and why despite the delay he claims that he cannot be afforded substantial redress at a hearing in due course. I must also mention that the fact the Applicant wants to have the matter resolved urgently does not render the matter urgent. The correct and the crucial test is whether, if the matter were to follow its normal course as laid down by the rules, an Applicant will be afforded substantial redress. If he cannot be afforded substantial redress at a hearing in due course, then the matter qualifies to be enrolled and heard as an urgent application. If however despite the anxiety of an Applicant he can be afforded a substantial redress in an application in due course the application does not qualify to be enrolled and heard as an urgent application.”

[21] The applicant did not surpass the barometer that governs urgency, more so, the question of the whether the applicant would be afforded substantial redress at a hearing in due course was simply glossed over. The grounds submitted by the applicant was wholly inadequate for this Court to be approached on urgent basis. Regarding costs, there was no reason to deviate from the normal cost order.

[22] Resultantly, I reiterate the order granted:

(i) The application is struck from the roll for lack of urgency.

(ii) The applicant to pay the costs.

A REDDY

ACTING JUDGE OF THE

HIGH COURT OF

SOUTH AFRICA NORTH WEST DIVISION, MAHIKENG

APPEARANCES

Date of Hearing: 26 July 2023. Date of order 26 July 2023 Date of reasons requested : 07 August 2023 Date of Reasons of Judgment: 24 August 2023 Counsel for the Applicant: Adv P A Masilo Attorney for Applicant: Edward N S Attorneys C/O Smit Neethling Inc 29 warren street

MAHIKENG Tel: 018 381 0801 Counsel for Respondent: Adv N Luthuli Attorney for Respondent: Mashapa Ramoshaba Attorney C/O Morweng Attorneys Molopo Road Mahikeng Tel: 018 381 0970