Vodacom (Pty) Limited v Mobile Telecommunications Network (Pty) Limited Transnet (SOC) Ltd (25771/2018) [2018] ZAGPJHC 708 (26 November 2018)

Vodacom (Pty) Limited v Mobile Telecommunications Network (Pty) Limited Transnet (SOC) Ltd (25771/2018) [2018] ZAGPJHC 708 (26 November 2018)

The court found that Vodacom would suffer irreparable harm if the order were suspended, as its alternative delictual claim against MTN for pure economic loss is far more difficult to establish than MTN's contractual claim against Transnet. The balance of probabilities favours Vodacom, meeting the requirements of section 18(3) of the Superior Courts Act. Exceptional circumstances exist because the appeal process could render Vodacom's vindicated rights nugatory, especially given the poor prospects of success on appeal. The court rejected the argument that the mere existence of an alternative cause of action suffices, holding that the substance and practicality of the alternative remedy...

Citation
[2018] ZAGPJHC 708
Parties
Applicant: Vodacom (Pty) Limited; Respondent: Mobile Telecommunications Network (Pty) Limited; Respondent: Transnet (SOC) Ltd
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
26 November 2018
Case Number
25771/2018
Procedural Posture
Urgent Application / Section 18(1) Application for Non Suspension of Order Pending Appeal
Outcome
Application granted: the operation and execution of the order is not suspended pending MTN's application for leave to appeal.
Judges
Van der Linde
Legal Topics
Superior Courts Act Section 18, Porting Regulations, Contract Termination, Irreparable Harm, Exceptional Circumstances, Collateral Challenge
Civil Procedure Telecoms and Media Commercial and Corporate Superior Courts Act Section 18 Porting Regulations Contract Termination Irreparable Harm Exceptional Circumstances +1 more

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Parties

Vodacom (Pty) Limited

Applicant

Mobile Telecommunications Network (Pty) Limited

Respondent

Transnet (SOC) Ltd

Respondent

Procedural Posture

Urgent Application / Section 18(1) Application for Non Suspension of Order Pending Appeal

Legal Issues

  1. 1 Whether the operation and execution of the court's order should be suspended pending MTN's application for leave to appeal to the Supreme Court of Appeal.
  2. 2 Whether Vodacom will suffer irreparable harm if the order is suspended, and whether MTN will suffer irreparable harm if the order is not suspended.
  3. 3 Whether exceptional circumstances exist to justify non-suspension of the order under section 18(1) of the Superior Courts Act.

Ratio Decidendi

The court found that Vodacom would suffer irreparable harm if the order were suspended, as its alternative delictual claim against MTN for pure economic loss is far more difficult to establish than MTN's contractual claim against Transnet. The balance of probabilities favours Vodacom, meeting the requirements of section 18(3) of the Superior Courts Act. Exceptional circumstances exist because the appeal process could render Vodacom's vindicated rights nugatory, especially given the poor prospects of success on appeal. The court rejected the argument that the mere existence of an alternative cause of action suffices, holding that the substance and practicality of the alternative remedy...

Court Disposition

Application granted: the operation and execution of the order is not suspended pending MTN's application for leave to appeal.

Orders

  • The order granted on 24 August 2018 is not suspended pending MTN's application for leave to appeal to the Supreme Court of Appeal.
  • MTN is directed to comply with the order and port all Transnet cell phone numbers to Vodacom's network.