Unitrade 1047 (Pty) Ltd t/a Isidingo Security v Metsimaholo Local Municipality and Others (6568/2023) [2023] ZAFSHC 477 (14 December 2023)
The court found that the relief sought by the applicant was not urgent, as any order granted would only be effective for approximately two weeks, after which the agreement would expire and the first respondent could elect not to renew it. The applicant failed to demonstrate urgency, and the court could not interdict...
Source-derived case information.
- Citation
- [2023] ZAFSHC 477
- Parties
- Applicant: Unitrade 1047 (Pty) Ltd t/a Isidingo Security; Respondent: Metsimaholo Local Municipality; Respondent: Fusi John Motloung; Respondent: Promptiqe Trading 7 CC t/a White Leopard Security
- Court
- Free State High Court, Bloemfontein
- Jurisdiction
- South Africa
- Case Number
- 6568/2023
- Procedural Posture
- Urgent Application / Part A: Urgent Interim Relief Pending Review; Application Removed From Roll for Want of Urgency
- Outcome
- Application removed from the roll for want of urgency; applicant ordered to pay wasted costs.
- Judges
- P.J. Loubser
- Legal Topics
- Interim Interdict, Contract Termination, Service Level Agreement, Urgency, Wasted Costs
Source-derived case record
Summary, issues, holding and outcome
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Parties
Unitrade 1047 (Pty) Ltd t/a Isidingo Security
Applicant
Metsimaholo Local Municipality
Respondent
Fusi John Motloung
Respondent
Promptiqe Trading 7 CC t/a White Leopard Security
Respondent
Procedural Posture
Urgent Application / Part A: Urgent Interim Relief Pending Review; Application Removed From Roll for Want of Urgency
Legal Issues
- 1 Whether the application for urgent interim relief pending review is urgent.
- 2 Whether the applicant is entitled to an interdict preventing the respondent from implementing the termination and awarding the contract to the third respondent.
- 3 Whether the applicant has shown sufficient urgency to justify the matter being heard on an urgent basis.
Ratio Decidendi
The court found that the relief sought by the applicant was not urgent, as any order granted would only be effective for approximately two weeks, after which the agreement would expire and the first respondent could elect not to renew it. The applicant failed to demonstrate urgency, and the court could not interdict the first respondent from exercising its contractual rights under clause 4.1. The application was accordingly removed from the roll for want of urgency, and the applicant was ordered to pay the wasted costs occasioned by the removal.
Court Disposition
Application removed from the roll for want of urgency; applicant ordered to pay wasted costs.
Orders
- The application is removed from the roll for want of urgency.
- Applicant to pay the wasted costs occasioned by the removal.
Full Case Text
Judgment text and source record
23 paragraphs
IN THE HIGH COURT OF SOUTH AFRICA,
FREE STATE DIVISION, BLOEMFONTEIN
Reportable: YES/NO
Of Interest to other Judges: YES/NO
Circulate to Magistrates: YES/NO
Case number: 6568/2023
In the matter between: UNITRADE 1047 (PTY) LTD T/A ISIDINGO SECURITY Applicant and METSIMAHOLO LOCAL MUNICIPALITY First Respondent FUSI JOHN MOTLOUNG Second Respondent PROMPTIQE TRADING 7 CC t/a WHITE LEOPARD SECURITY Third Respondent
CORAM:
LOUBSER, J
HEARD ON: 13 DECEMBER 2023
DELIVERED ON: 14 DECEMBER 2023
[1] This is an application that came before this court on an urgent basis. It is common cause that the Applicant has a service level agreement with the First Respondent, and that the First Respondent had summarily terminated that agreement on 1 December 2023. In terms of the agreement, the Applicant had provided security services to the First Respondent. When the agreement was terminated, the First Respondent awarded the security services in question to the Third Respondent.
[2] In the notice of motion, which consists of a part A and a part B, the Applicant moves in part A for certain urgent relief pending the final determination of a review application, the prayers of which are contained in part B. This court is therefore only seized with the determination of part A, although the Applicant’s prospects of success in the later review proceedings stand to be considered in the determination of part A.
[3] On review the Applicant moves for the review and setting aside of the First Respondent’s decision to terminate the agreement on 1 December 2023, to award a contract to the Third Respondent, and any service level agreement that may be concluded between the First and Third Respondents. Pending the outcome of this review, the Applicant moves for certain urgent relief, inter alia that the First Respondent be interdicted from taking any further steps towards the termination of the agreement, from implementing further effect to the award made to the Third Respondent and from concluding any contract with the Third Respondent for the provision of security services.
[4] Unlike most urgent applications where legal intricacies play a large part in the determination thereof, practical considerations relating to the urgent relief sought in the present application are of paramount importance. In this respect clause 4.1 of the agreement stipulates that the agreement shall commence on 1 January 2023, renewable annually for a period of three years up to 31 December 2025. The agreement does not set out the circumstances under which the agreement may or may not be renewed annually. The fact remains that the First Respondent may elect not to renew the agreement in two weeks’ time. In my view, this is what will happen in all probability, since it had already decided to terminate the agreement on 1 December 2023.
[5] Assuming for the moment that the Applicant will be successful in its review application for the setting aside of the termination of the agreement on 1 December 2023, such setting aside will have no influence on the likely decision of the First Respondent at the end of December 2023 not to renew the agreement. The setting aside will therefore only have a practical impact for a very limited period of time. At the same time, if the urgent relief is granted, such relief will not extend beyond the end of December 2023. It will only be effective for a period of some two weeks, which period includes the coming festive season.
[6] This outcome has a serious effect on the urgency of the application. It speaks for itself that the relief sought in part A can never be urgent if it would in all probability only be effective for two weeks. I therefore come to the conclusion that the Applicant has not shown urgency. Should it suffer any damages during the two weeks leading up to 1 January 2024, it may claim such damages from the First Respondent, if it elects to do so. In any event, the Court cannot interdict the First Respondent from taking any further steps towards termination of the agreement, in view of the provisions of clause 4.1.
[7] The following order is made:
1. The application is removed from the roll for want of urgency.
2. Applicant to pay the wasted costs occasioned by the removal.
P.J. LOUBSER, J
On behalf of the applicant: Adv. C.D. Pienaar Instructed by: Woodhead Bigby Inc, La Lucia c/o Lovius Block Inc., Bloemfontein On behalf of the first and second respondents: Adv. S.J. van Rensburg SC Instructed by: Ntleru Inc. Attorneys, Pretoria c/o Amade and Company Inc., Bloemfontein
/roosthuizen