IN THE HIGH COURT OF SOUTH AFRICA GAUTENG DIVISION, PRETORIA PRETORIA 09 JUNE 2017 BEFORE THE HONOURABLE MR JUSTICE FABRICIUS In the matter between: STAIN-NEO'S CONSTRUCTION AND PROJECTS CC TSUTSUMANI BUSINESS ENTERPRISES CC AND CITY OF TSHWANE METROPOLITAN MUNICIPALITY MOIPONE GROUP OF COMPANIES (PTY) LTD CASE NO: 34871/2017 1 ST APPLICANT 2 ND APPLICANT 1ST RESPONDENT 2ND RESPONDENT HAVING HEARD counsel(s) for the parties and having read the documents filed the court reserved its judgment. THEREAFTER ON THIS DAY THE COURT ORDERS JUDGMENT 1. prayer 2 of the Notice of Motion is granted; 2. the second respondent is to pay the costs of this application, including the costs of the first respondent. Attorney: D BY THE COURT REGISTRAR MRM
Transcript
IN THE HIGH COURT OF SOUTH AFRICA GAUTENG DIVISION, PRETORIA
PRETORIA 09 JUNE 2017
BEFORE THE HONOURABLE MR JUSTICE FABRICIUS
In the matter between:
STAIN-NEO'S CONSTRUCTION AND PROJECTS CC TSUTSUMANI BUSINESS ENTERPRISES CC
AND
CITY OF TSHWANE METROPOLITAN MUNICIPALITY MOIPONE GROUP OF COMPANIES (PTY) LTD
CASE NO: 34871/2017
1 ST APPLICANT 2 ND APPLICANT
1ST RESPONDENT 2ND RESPONDENT
HAVING HEARD counsel(s) for the parties and having read the documents filed the court reserved its judgment.
THEREAFTER ON THIS DAY THE COURT ORDERS
JUDGMENT
1. prayer 2 of the Notice of Motion is granted;
2. the second respondent is to pay the costs of this application, including the costs of the first respondent.
Attorney:
D
BY THE COURT
REGISTRAR MRM
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IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)
DELETE WHICHEVER IS NOT APPLICABLE
(1) REPORTABLE: ,S~·
_, (2) OF INTEREST TO OTHER JUDGES: '.,s'~.
(3) REVISED.\)
--- -°'\\,\,~ ------ -- ---~L-----DATE SIGNATURE
In the matter between:
STAIN-NEO'S CONSTRUCTION AND PROJECTS CC
TSTSUMANI BUSINESS ENTERPRISES CC
And
CITY OF TSHWANE
METROPOLITAN MUNICIPALITY
MOIPONE GROUP OF COMPANIES (PTY) LTD
Case Number: 34871 / 2017
15T APPLICANT
2 ND APPLICANT
15T RESPONDENT
2 ND RESPONDENT
2
JUDGMENT
Fabricius J,
·'
1 .
.. In this urgent application the Applicants seek an order: "That the First Respondent
. ·, be interdicted from utilizing the services of the Second Respondent in respect of any
waste removal services, but excluding the leasing of vehicles only as provided for in
the Public Private Partnership Agreement concluded between the First Respondent
and the Second Respondent on 24 March 2016".
2.
First Respondent did not oppose this application, filed a Notice to Abide, but then
also filed an Explanatory Affidavit with which I will deal. The Second Respondent
opposed the application.
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3.
The purpose of the application was stated as follows: "The Applicants were recently
awarded a tender by the First Respondent to render waste removal services to the
First Respondent. The First Respondent previously concluded an agreement with the
Second Respondent which, on face value, entitles the First Respondent to lease
vehicles from the Secon.d Respondent. The First Respondent terminated the
services of the Applicants and is currently utilizing the services of Second
Respondent in an unlawful manner'' .
4.
The back-ground facts were then given and the crux of the whole debate before me
is that Applicants say that Second Respondent never had an agreement with the
First Respondent to render a service to it. It only had an agreement (the PPPA) to
lease vehicles to the First Respondent.
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5.
Applicants were awarded a tender pursuant to which service level agreements were
concluded. The services to be provided by the Second Respondent do not deal with
waste removement, but only with the provision for the leasing of vehicles. In terms
of the contracts concluded with the First Respondent, Applicants are all obliged to
render waste removal services to the First Respondent which would include the
provision of waste removal trucks, drivers, personnel and fuel. It was alleged in the
context of the Applicants' clear right that the First Respondent terminated the
services of Applicant on 12 May 2017, on the basis that the First Respondent
intended to utilize the services of the Second Respondent. The conduct of the First
Respondent in this context is unlawful, because the First Respondent has no
agreement with the Second Respondent, inasmuch as the PPPA only provides for
the leasing of vehicles, and not for the provision of rendering of a service.
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6.
In the context of prejudice to the Applicants, it was alleged that finance agreements
are in place in respect of the waste removal trucks. Monthly instalments have to be
• paid. Applicants employed drivers and personnel to enable them to render the
relevant services and there are in addition peripheral expenses like insurance, rent
and security. An ultimate claim for da.mages would not be an adequate alternative
remedy under the present circumstances .
7.
The Explanatory Affidavit of the First Respondent states that the application is not
opposed due to the fact that there is no agreement between the Respondents which
makes provision for the Second Respondent to provide waste removal services to
' the city. It was stated that the Applicants had correctly pointed out that they were
appointed to provide waste removal services pursuant to a tender process. It was
also stated that the Second Respondent is fully aware of the fact that the City
cannot lawfully procure goods and services without a lawful procurement contract.
6
Despite the fact that the Second Respondent proposed the application, it had not
referred me to any agreement in terms of which it is in law entitled to provide waste
removal services.
8.
I was referred to paragraph 59 .2 of Second Respondent's Answering Affidavit,
,· where it was said that "all the services that the Second Respondent provides to the
City are regulated by the PPP Agreement". It was then said that Second Respondent
had not referred me to any clause in this agreement in terms of which it is in law
entitled to provide waste removal services to the City. The agreement merely
regulates the provision of vehicles to the City. The Applicants do not seek any relief
in this application to the effect that the PPP Agreement should be terminated, and
this issue is pending in another Court.
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9.
On behalf of the Second Respondent, I was referred to various clauses of the PPP
Agreement, and I was asked in effect to read into these clauses the words that do
not appear there. In an urgent application, I need to decide the matter on the basis
of the affidavits and annexures put before me, and obviously no evidence as to the
intention of the parties when agreements were drawn. I cannot import words or
phrases into an agreement which do not clearly appear there, nor can I say what
\. tacit terms should be read into any agreement. I therefore agree with the contentions
put forward by the First Respondent's Explanatory Affidavit, and it is in my view
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· abundantly clear that the Second Respondent could not refer me to any clause in
the PPP Agreement in terms of which it would be entitled to provide waste removal
services to the City.
\ 10.
Applicants do not seek a cost order against the First Respondent. In the light of the
above, the following order is made:
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1. Prayer 2 of the Notice of Motion is granted;
2. The Second Respondent is to pay the costs of this application, including the
costs of the First Respondent.
JUDGE H.J FABRICIUS
JUDGE OF THE HIGH COURT GAUTENG DIVISION, PRETORIA
IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA}
DELETE WHICHEVER IS NOT APPLICABLE
(1 ) REPORTABLE: 'r-5~· _ \
(2) OF INTEREST TO OTHER JUDGES: Y~~-
(3) REVISED. V
_ -~1"-\'~ __ __ __________ \tL ___ _ DATE SIGNATURE
In the matter between:
STAIN-NEO'S CONSTRUCTION AND PROJECTS CC
TSTSUMANI BUSINESS ENTERPRISES CC
And
CITY OF TSHWANE
METROPOLITAN MUNICIPALITY
MOIPONE GROUP OF COMPANIES (PTY) LTD
Case Number: 34871 / 2017
1 ST APPLICANT
2 ND APPLICANT
1ST RESPONDENT
2ND RESPONDENT
2
JUDGMENT
Fabricius J,
1.
.. In this urgent application the Applicants seek an order: "That the First Respondent
be interdicted from utilizing the services of the Second Respondent in respect of any
waste removal services, but excluding the leasing of vehicles only as provided for in
the Public Private Partnership Agreement concluded between the First Respondent
and the Second Respondent on 24 March 2016".
2.
First Respondent did not oppose this application, filed a Notice to Abide, but then
also filed an Explanatory Affidavit with which I will deal. The Second Respondent
opposed the application.
3
3.
The purpose of the application was stated as follows: "The Applicants were recently
awarded a tender by the First Respondent to render waste removal services to the
First Respondent. The First Respondent previously concluded an agreement with the
Second Respondent which , on face value, entitles the First Respondent to lease
vehicles from the Second Respondent. The First Respondent terminated the
services of the Applicants and is currently utilizing the services of Second
Respondent in an unlawful manner". •'
\ 4.
The back-ground facts were then given and the crux of the whole debate before me
is that Applicants say that Second Respondent never had an agreement with the
First Respondent to render a service to it. It only had an agreement (the PPPA) to
lease vehicles to the First Respondent.
·'
4
5.
Applicants were awarded a tender pursuant to which service level agreements were
concluded. The services to be provided by the Second Respondent do not deal with
waste removement, but only with the provision for the leasing of vehicles. In terms
of the contracts concluded with the First Respondent, Applicants are all obliged to
render waste removal services to the First Respondent which would include the
provision of waste removal trucks, drivers, personnel and fuel. It was alleged in the .. context of the Applicants ' clear right that the First Respondent terminated the
'
services of Applicant on 12 May 2017, on the basis that the First Respondent
intended to utilize the services of the Second Respondent. The conduct of the First
\ Respondent in this context is unlawful, because the First Respondent has no
agreement with the Second Respondent, inasmuch as the PPPA only provides for
the leasing of vehicles, and not for the provision of rendering of a service.
5
6 .
In the context of prejudice to the Applicants, it was alleged that finance agreements
are in place in respect of the waste removal trucks. Monthly instalments have to be
• paid. Applicants employed drivers and personnel to enable them to render the
relevant services and there are in addition peripheral expenses like insurance, rent
and security. An ultimate claim for da.mages would not be an adequate alternative
remedy under the present circumstances.
7.
' "
The Explanatory Affidavit of the First Respondent states that the application is not
opposed due to the fact that there is no agreement between the Respondents which
makes provision for the Second Respondent to provide waste removal services to
'
the city. It was stated that the Applicants had correctly pointed out that they were
appointed to provide waste removal services pursuant to a tender process. It was
also stated that the Second Respondent is fully aware of the fact that the City
cannot lawfully procure goods and services without a lawful procurement contract.
\
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6
Despite the fact that the Second Respondent proposed the application, it had not
referred me to any agreement in terms of which it is in law entitled to provide waste
removal services.
8.
·\ ,
I was referred to paragraph 59.2 of Second Respondent's Answering Affidavit,
where it was said that "all the services that the Second Respondent provides to the
City are regulated by the PPP Agreement''. It was then said that Second Respondent
had not referred me to any clause in this agreement in terms of which it is in law
,
entitled to provide waste removal services to the City. The agreement merely
regulates the provision of vehicles to the City. The Applicants do not seek any relief
'· in this application to the effect that the PPP Agreement should be terminated, and
this issue is pending in another Court.
\
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, I
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9.
On behalf of the Second Respondent, I was referred to various clauses of the PPP
Agreement, and I was asked in effect to read into these clauses the words that do
not appear there. In an urgent application, I need to decide the matter on the basis
of the affidavits and annexures put before me, and obviously no evidence as to the
\ · .. \
intention of the parties when agreements were drawn. I cannot import words or
phrases into an agreement which do not clearly appear there, nor can I say what
\,. tacit terms should be read into any agreement. I therefore agree with the contentions
put forward by the First Respondent's Explanatory Affidavit, and it is in my view
' · abundantly clear that the Second Respondent could not refer me to any clause in
the PPP Agreement in terms of which it would be entitled to provide waste removal
services to the City.
\ 10.
Applicants do not seek a cost order against the First Respondent. In the light of the
above, the following order is made:
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1. Prayer 2 of the Notice of Motion is granted;
2. The Second Respondent is to pay the costs of this application, including the
costs of the First Respondent.
JUDGE H.J FABRICIUS
JUDGE OF THE HIGH COURT GAUTENG DIVISION, PRETORIA
