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IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION PRETORIA

(1)           REPORTABLE:  NO

(2)           OF INTEREST TO OTHER JUDGES: NO

(3)           REVISED. 

 

29 JANUARY 2021

 

 

CASE NO: 81609/19

 

In the matter between: -

 

AFROCENTRICS PROJECTS AND SERVICES (PTY)

LTD t/a INNOVATIVE DISTRIBUTION

Registration No. 2012/119655/07                                                                         Applicant

 

and

 

STATE INFORMATION TECHNOLOGY AGENCY

SOC LIMITED

Registration No. 1999/001899/30                                                                      First Respondent

MICRO FOCUS SOFTWARE (IRELAND) LIMITED

Registration No. IE223694                                                                               Second Respondent

AXIZ (PTY) LIMITED                                                                                    Third Respondent

XUMA TECHNOLOGIES t/a TELECOMS

Registration No. 2004/006551/07                                                                      Fourth Respondent

DEPUTY MINISTER OF COMMUNICATIONS

AND DIGITAL TECHNOLOGIES                                                                Fifth Respondent

MINISTER OF FINANCE                                                                               Sixth Respondent

THE DIRECTOR-GENERAL DEPARTMENT

OF NATIONAL TREASURY                                                                           Seventh Respondent

 

JUDGMENT

 

MADIBA AJ

[1]        Afrocentrics Projects Services (Pty) Ltd t/a Innovative Distribution

 

(Afrocentrics) launched an application against the seven Respondents

 

under case number 81609 / 2019 (main application).

 

It seeks the following relief as per Part A and Part B of the notice motion:-

 

 

Part A

 

 

1.    “Pending the finalisation of the application contemplated in Part B of

 

this Notice of Motion, the framework Agreement entered into between

 

the First and Second Respondent (‘the Framework Agreement”),

 

effective 1 November 2017 and any agreement arising therefrom are

 

hereby suspended;”

 

 

2.    …

 

 

Part B

 

 

1. Reviewing, declaring invalid and setting aside the Framework Agreement

 

entered into between the First and Second Respondents (“the Framework

 

Agreement”), effective 1 November 2017 (and consequently any

 

agreement arising out of the Framework Agreement) to the extent that it

 

relinquishes the First Respondent’s procurement mandate to the Second

 

Respondent;

2. Reviewing, declaring invalid and setting aside the Fulfilment Agent

 

Agreement entered into between the Second Respondent and the

 

Applicant (“the Fulfilment Agent Agreement”) to the extent that it provides

 

that the Second Respondent can terminate the Fulfilment Agent

 

Agreement for convenience;

 

 

3. Reviewing, declaring and setting aside the Micro Focus Partner Base

 

Terms (“the Micro Focus Partner Agreement”) to the extent that it provides

 

that the Second Respondent can terminate the Micro Focus Partner

 

Agreement without cause;

 

 

4. Reviewing, declaring invalid and setting aside the Second Respondent’s

 

decision (and the subsequent termination notices dated 3 July 2019) to

 

terminate the Fulfilment Agent Agreement and the Micro Focus Partner

 

Agreement;

 

 

5. Declaring that the conduct of the Second Respondent in terminating the

 

Applicant’s Fulfilment Agent Agreement and the Micro Focus Partner

 

Agreement “without cause” and, ostensibly, “for convenience” of the end-

 

user of the service, is unfair, arbitrary and capricious and so in violation of

 

Section 217 91) of the Constitution of the Republic of South Africa, 108 of

 

1996;

 

 

6. In the event of a declaration in prayer 5 above, directing that

 

 

 

6.1         clause 12 (b) of the Fulfilment Agent Agreement shall substitute the

 

words “on good and just cause shown” for the words “for

 

convenience” so as to bring it in line with letter and spirit of the

 

Constitution as follows:

 

 

“12      Term and termination. These terms and conditions shall apply to

 

You for a period of 3 years from the Effective Date.

 

 

(a)    …

 

 

(b)   Termination for Convenience. Micro Focus may terminate Your

 

Appointment hereunder on good and just cause shown upon giving

 

you at least 30 days’ prior written notice.”

 

 

6.2         Clause 9 of the “Micro Focus Partner Agreement” shall substitute

 

the words “on good and just cause shown” for the words “without

 

cause” so as to bring it in line with the letter and spirit of the

 

Constitution as follows:

 

 

 

“9         TERM AND TERMINATION

 

(a)   This Agreement and any related LIAs will remain in effect until

 

terminated.

 

 

(b)   Either party may terminate this Agreement and / or individuals LIAs on

 

good and just cause shown at any time upon (30) days prior written

 

notice to the other party.

 

Termination of this Agreement will automatically operate as termination

 

of all LIAs entered into hereunder.”

 

 

7. Declaring that the Framework Agreement, Fulfilment Agent Agreement

 

and the Micro Focus Partner Agreement frustrates the achievement of the

 

objects of the Broad-Based Black Economic Empowerment Act, 53 of

 

2003 (“the B-BBEE Act”) which was enacted specifically to give effect to

 

Sections 9(2) and 217 (3) [read together with section 217 (2)] of the

 

Constitution of the Republic of South Africa, 108 of 1996 and is / are

 

unconstitutional to the extent that they relinquish the First Respondent’s

 

procurement mandate to the Second Respondent and / or provides that

 

the Second Respondent has the sole discretion to appoint and terminate

 

the Applicant as an additional fulfilment agent.

 

 

8. Declaring that the conduct and / or decision of the Second Respondent to

 

terminate the Applicant as an additional fulfilment agent frustrates the

 

achievement of the objects of the B-BBEE Act which was enacted

 

specifically to give effect to Sections 9(2) and 217(3) [read together with

 

section 217 (2)] of the Constitution of the Republic of South Africa, 108 of

 

1996 and is /are unconstitutional.

 

 

9. Declaring that the conduct and / or decision of the Second Respondent to

 

terminate the Applicant as an additional fulfilment agent impinge/s on the

 

Applicant’s owners right to human dignity and is/are unconstitutional;

 

10.  Declaring that the conduct and /or decision of the Second Respondent to

 

terminate the Applicant as an additional fulfilment agent constitutes

 

collusive behaviour and/or abuse of dominance;

 

 

11.  Directing the Second Respondent to compensate the Applicant with the

 

revenue the Applicant would have derived had the Second Respondent

 

not terminated the Fulfilment Agent Agreement and the Micro Focus

 

Partner Agreement;

 

 

12.   Directing the First Respondent and Second Respondent to restore the

 

status quo had the Applicant not been terminated;

 

13.   Costs;

 

14.  Further and/or alternative relief.”

 

 

 

 

[2]        Micro Focus Software instituted an application in terms of Uniform

 

Rules 30 (1), 30A (1) b and 6 (11) against the applicant in the main action.

 

 

[3]        The relief sought by Micro Focus Software is to set aside as irregular

 

and improper proceedings, the notice of motion issued by Afrocentrics and

 

alternatively that the main application be struck out in terms of Rule 30A

 

(1) (b).

 

 

[4]        Afrocentrics is opposing the application on the basis that it is meritless,  

 

frivolous and that Rule 30 is not competent for the issues as raised by

 

Micro Focus Software.

 

 

FACTUAL BACKGROUND

 

 

[5]        The 1^st and 2^nd Respondents in the main application (Micro Focus

 

Software and SITA) concluded an agreement hereafter referred to as “SITA Agreement” for the procurement by organs of state of ICT software and related services.

 

[6]        Among the other material terms of the SITA AGREEMENT were that the 3^rd Respondent, AXIS (Pty) LIMITED was appointed as the Fulfilment Agent.

 

 

[7]        Its obligations were to assist the organs of the state with their   administration, orders and payment.

 

 

[8]        Micro Focus Software was entitled to appoint additional Fulfilment Agents.

 

It accordingly appointed Afrocentrics as an additional Fulfilment Agent.

 

 

[9]        A Partner Agreement was subsequently entered into between Micro Focus

 

Software and Afrocentrics. The purpose of the Partner Agreement was to

 

enable Afrocentrics to access information relevant in terms of the SITA

 

Fulfilment Agreement.

 

 

[10]      The Fulfilment Agreement and the Partner Agreement between Micro

 

Focus Software and Afrocentrics were terminated at the instance of Micro

 

Focus Software during 3 July 2019.

 

 

 

[11]      As a result of the termination of the agreements between Micro Focus

 

Software and Afrocentrics, Afrocentrics launched an application

 

seeking various relief as aforementioned.

 

 

 

ISSUES FOR DETERMINATION

 

 

[12]      1) Whether the issues raised by the Applicant (Micro Focus Software) are

 

competent under Rule 30 and Rule 30A.

 

 

2) Whether the application by Afrocentrics is compliant with Uniform Rules  

 

  6 and 53.

 

 

3) Whether paragraphs 5, 7, 13, 14 and 55 of Afrocentrics’ opposing

 

affidavit be struck out.

 

4) Whether Micro Focus Software complied with the requirements of Rule

 

30.

 

 

 

[13]      Micro Focus Software causes of complaint against Afrocentrics’ notice

 

of motion are tabulated as follows: -

 

i)             That the relief sought by Afrocentrics is contradictory and mutually

 

destructive,

 

ii)            The challenge on the validity of SITA’s procurement mandate by

 

Afrocentrics is baseless;

 

iii)           The relief sought by Afrocentrics under Uniform Rule 53 is not competent

 

under the circumstances;

 

iv)           Micro Focus Software challenges the competence of the declaratory relief

 

sought by Afrocentrics;

 

v)            The irregularity of Afrocentrics’ claim for damages.

 

 

 

 

APPLICATION IN TERMS OF RULE 6 (15) OF THE UNIFORM RULES OF

 

COURT

 

[14]      Micro Focus Software launched an application to strike out paragraphs 5,

 

7, 13, 14 and 55 of Afrocentrics’ affidavit.

 

 

It is alleged that the said paragraphs are scandalous, vexatious and

 

irrelevant and thus prejudicial to Micro Focus Software.

 

Rule 6 (15) provides that the court may strike out from any affidavit any

 

matter which is scandalous, vexatious or irrelevant if satisfied that the

 

Applicant will be prejudiced if not granted.

 

 

[15]      The Applicant has to fulfil the following requirements for it to succeed: -

 

 

i)             That the matter sought to be struck out must indeed be scandalous,

 

vexatious and irrelevant.

 

 

ii)            The court is to be satisfied that if such matter is not struck out, the parties

     

seeking such relief would be prejudiced.

 

      (See Beinash v Wixley [1997] ZASCA 32; 1997 (3) SA 721 (SCA) at 733B).

 

 

[16]      Afrocentrics did not oppose the application to strike out the aforementioned paragraphs.

 

 

[17]      Micro Focus Software contended that the contents of paragraphs 5, 7, 13,

 

14 and 55 of Afrocentrics’ opposing affidavit constitute unwarranted

 

abusive attacks which are intended to harass, annoy and cloud the real

 

issues between the parties.

 

 

[18]      It further submitted that the allegations are unsubstantiated, baseless and

 

irrelevant and as such prejudicial and also defamatory to Micro Focus

 

Software and its personnel.

 

 

[19]      I find that the contents of paragraphs 5, 7, 13, 14 and 55 are indeed

 

scandalous, vexatious and irrelevant and do not contribute to the

 

determination of the issue between the parties.

 

Micro Focus Software will be prejudiced if its application is not granted.

 

 

[20]      I am satisfied that a case for striking out in terms of Rule 6 (15) has been

 

made out and accordingly strike out paragraphs 5, 7, 13, 14 and 55 of

 

Afrocentrics’ opposing affidavit.

 

In the circumstances, no order as to costs is warranted.

 

 

ANALYSIS AND LEGAL PRINCIPLES FINDING APPLICATION

 

 

[21]      Rule 30 (1) of the Uniform Rules provides that any party to any cause in

 

which an irregular or improper step has been taken may apply to court to

 

set it aside.

 

[22]      If the court is of the view that the proceedings or step is irregular or

 

improper it may set it aside in whole or in part, and may grant leave to

 

amend or make any other appropriate order.

 

 

[23]      The application in terms of Rule 30 may only be made if the applicant has

 

by written notice afforded its opponent an opportunity to remove the cause

 

of complaint within 10 days and thereafter delivers an application at the

 

expiry date of those 10 days.

 

 

[24]      Since the application to set aside an irregular proceeding or step is an

 

interlocutory application, Rule 6 (11) of the Uniform Rules finds

 

application.

 

 

[25]      It is worth mentioning that the applicant did request Afrocentrics to comply with the provisions of Rule 30 (2) and Rule 30 A (1) and Afrocentrics did not remove the cause of complaint or withdraw the main application.

 

 

[26]      As a result thereof, Micro Focus Software launched an application in terms

 

of Rule 30(1), Rule 30A(1) (2) and Rule 6(11) of the Uniform Rules of

 

court.

 

 

[27]      The application by Micro Focus Software is opposed on the basis that

 

Rule 30 is not competent to assist Micro Focus Software as it is intended

 

for matters of form not of substance.

 

 

[28]      Afrocentrics contended that Micro Focus Software is actually and

 

effectively alleging that the notice of motion (main application) by

 

Afrocentrics is vague and embarrassing or fails to disclose a cause of

 

action. According to Afrocentrics, Rule 30 proceedings are competent

 

herein.

 

 

[29]      It is Afrocentrics’ contention that Micro Focus Software listed five grounds

 

which it alleged rendered Afrocentrics’ main application irregular and

 

improper. The five grounds are repeated here for the sake of

 

completeness:

 

 

i)             That Afrocentrics failed to comply with the Rule 53;

 

ii)            That the claims by Micro Focus Software is mutually destructive

 

and contradictory;

 

iii)           The competency of the damage claim;

 

iv)           The declaratory relief sought by Afrocentrics;

 

v)            The challenge on the competence for the relief sought under Rule

 

53 and the validity of SITA’s procurement mandate.

 

 

[30]      The only ground allegedly listed by Micro Focus Software is that the relief

 

sought by Afrocentrics in the main application is not competent under Rule

 

53 of the Uniform Rules of court.

 

[I will return to Rule 53 at a later stage]

 

 

 

 

[31]      Failure by Micro Focus Software to give notice to their four grounds listed

 

as the basis of lodging Rule 30 application makes Micro Focus Software

 

guilty of not complying with the provisions of Rule 30 and therefore Micro

 

Focus Software abuses the court process in this instance so submitted

 

Afrocentrics.

 

 

[32]      According to Micro Focus Software, Part A of Afrocentrics’ application is

 

not a separate part to the main application but it is a prayer seeking to

 

suspend the SITA Agreement and it contradicts the relief sought under

 

Part B.

 

 

[33]      Micro Focus Software further contended that the relief by Afrocentrics was

 

supposed to have been sought in the alternative and its failure to do so is

 

contradictory and mutually destructive.

 

 

[34]      It is submitted by Micro Focus Software that Afrocentrics omitted to

 

provide any factual or legal basis for the relief it seeks under PART A and

 

PART B.

 

 

[35]      Rule 30 is intended at removing impediments which will hinder the future

 

conduct of the matter.

 

 

[36]      It was held in SA Metropolitan Lewensversekeringsmaatskappy Bpk

 

v Louw NO 1981 (4) SA 329 (0) at 333G-H as follows: -

 

            “I have no doubt that Rule 30(1) was intended as a procedure whereby a

 

hindrance to the future conducting of the litigation, whether by a non-

 

observance of what Rules of court intended or otherwise, is removed. A

 

party who takes a procedural step which advances the finalization of the

 

case may not, unless he is unaware of the irregularity, ask for the setting

 

aside of the relevant irregularity.”

 

 

 

[37]      The irregularities aimed by Rule 30 are those pertaining to form and not

 

substance.

 

 

See Singh v Vorkel 1947 (3) SA 400 C at 406.

 

 

[38]      Afrocentrics contends that the complaints by Micro Focus Software are

 

matters of substance and are not competent under Rule 30 and Micro

 

Focus Software is to file its answering affidavit to the main application by

 

Afrocentrics instead of resorting to delaying tactics by raising non

 

observance of Rule 30.

 

 

[39]      It is submitted by Afrocentrics that the framework agreement between

 

SITA and Micro Focus Software must be suspended as it goes to the

 

heart of its main application and will go a long way in protecting its

 

constitutional rights.

 

 

[40]      However Rule 30 makes it clear in no uncertain terms that any irregular

 

proceedings may be attacked under Rule 30 and the court is empowered

 

to set aside such irregular proceeding including the complaint that goes

 

to the heart of the application (own emphasis).

 

 

[41]      Unfortunately the court in Singh v Vorkel did not decide the issue

 

whether Rule 30 is a competent procedure to deal with irregularities going

 

to the root of a claim. I am inclined not to follow the obiter in Singh v

 

Vorkel relating to the issue of form or substance as raised therein.

 

 

See Deputy Minister of Tribal Authorities and Another v Kekana

 

1983 (3) SA 492 (B).

 

 

[42]      Despite Afrocentrics’ submission that it’s Part A of the notice of motion is

an interim relief, it fails in my view, to comply with Rule 6 of the

Uniform Rules as it fails to set forth time periods for exchange of affidavits

apart of those entailed in its Part B and no provision is made for the appointment of an address within 15 kilometres from the court premises and the above are issues of form. However, Afrocentrics did at a later stage provide an address within 15 km radius. I find no reason why Micro Focus Software cannot resort to Rule 30 and Rule 30A as it is competent under the circumstances.

 

 

[43]      The assertion that Micro Focus Software failed to give notice to the other

 

            four grounds it listed as irregular proceedings in the attack to Afrocentrics’

 

main application, not only amounts to the abuse of the court process but

 

also is guilty of non-observance of Rule 30 so contended Afrocentrics.

 

 

[44]      Reading of Micro Focus Software’s affidavit regarding Rule 30(2)(b) and

 

Rule 30(A)(1) and its replying affidavit to Afrocentrics’ answering affidavit,  

 

I conclude that it encompasses in detail the cause of complaint in

 

Afrocentrics’ main application.

 

 

[45]      The assertion that Micro Focus Software failed to observe the

 

requirements of Rule 30 and thus is guilty of the abuse of court process is

 

accordingly rejected.

 

 

[46]      The concepts of abuse and what constitutes irregular proceedings are two

 

separate concepts.

 

 

[47]      The purpose of the Rules of court is to ensure a fair hearing and to secure

 

inexpensive and expeditious finalisation of matters before the courts.

 

            In Eke v Parsons 2016 (3) SA 37 CC at par 39 the court, when

 

confirming the adage that rules exist for the courts and not the courts for

 

the rules, held that rules should not be observed for their own sake.

 

 

[48]      The court in PFE International Inc (BVI) and Others v Industrial

 

Development Corporation of South Africa Ltd 2013 (1) SA CC stated

 

that thus: -

 

 

“Since the rules are made for the courts to facilitate the adjudication of

 

cases, the superior courts enjoy the power to regulate their process,

 

taking into account the interest of justice. It is this power that makes every

 

superior court the master of its own process. It enables a superior court to

 

lay down a process to be followed in particular cases, even if that process

 

deviates from what its rules prescribe. Consistent with that power, the

 

court may in the interest of justice depart from its own rules.”

 

 

[49]      It is not a peremptory requirement to file a notice and the court may in any

 

event condone such an omission by any of the litigants.

 

 

 

 

 

[50]      I, under the circumstances of this matter, hold that it is in the interest of

 

justice that the five grounds enlisted by Micro Focus Software be dealt

 

with in this application as complaints raised in terms of Rule 30 and

 

Rule 30 A of the Uniform Rules.

 

 

 

THE RELIEF SOUGHT BY AFROCENTRICS UNDER UNIFORM RULE 53

 

 

[51]      Micro Focus Software contends that Part B of Afrocentrics’ notice of

 

motion purports to be a notice of motion in terms of Rule 53 but fails to

 

meet the requirements as prescribed.

 

 

[52]      According to Micro Focus Software, part B does not identify the decision

 

or proceedings of any inferior court or of any tribunal, board or officer

 

performing judicial, quasi-judicial or administrative functions that could be

 

reviewed in terms of Rule 53.

 

 

[53]      It is further contended by Micro Focus Software that Afrocentrics asserts

 

that its main application is brought in terms of the Promotion of

 

Administrative Justice Act 2000 (PAJA) in that SITA is an organ of state

 

and Micro Focus Software as a juristic person, exercising a public power

 

or performing a public function in terms of national legislation acted in

 

breach of PAJA.

 

Micro Focus Software further submitted that Afrocentrics failed to provide

 

any detail of the alleged conduct performed by Micro Focus Software that

 

amounts to the exercise of a public power or public function in terms of the

 

national legislation.

 

[54]      Afrocentrics on the other hand, submits that it has in fact pleaded its

 

factual and legal basis in its founding affidavit in the review application

 

where it seeks an order reviewing, declaring invalid and setting aside

 

Micro Focus Software’s decision to terminate the Fulfilment Agent

 

Agreement and the Micro Focus Software’s Partner Agreement.

 

It submits that Micro Focus Software must meet the requirements of

 

legality and rationality and must be consistent with the constitution.

 

 

Rule 53(1) provides as follows: -

 

(1)  Save where any law otherwise provides, all proceedings to bring under

 

review the decision (s) or proceedings of any inferior court and of any

 

tribunal, board or officer performing judicial, quasi-judicial or

 

administrative functions shall be by way of notice of motion directed

 

and delivered by the party seeking to review such decision or

 

proceedings to the magistrate, presiding officer or chairman of the

 

court, tribunal or board or to the officer, as the case may be, to all other

 

parties affected-

 

(a)  calling upon such persons to show cause why such decision or

 

proceedings should not be reviewed and corrected or set side, and

 

(b)  calling upon the magistrate, presiding officer, chairman or officer,

 

as the case may be, to despatch, within fifteen days after receipt of

 

the notice of motion, to the registrar the record of such proceedings

 

sought to be corrected or set aside, together with such reasons as

 

he is by law required or desires to give or make, and to notify the

 

applicant that he has done so.

 

 

(2)   The notice of motion shall set out the decision or proceedings sought

 

to be reviewed and shall be supported by affidavit setting out the

 

grounds and the facts and circumstances upon which applicant relies

 

to have the decision or proceedings set aside or corrected.

 

 

 

[55]      The court in Jockey Club of SA v Forbes [1992] ZASCA 237; 1993 (1) SA 649 (A) at 662 G-

 

H held that the purpose of Rule 53 is not to protect the decision maker, but

 

to facilitate applications for review to ensure their speedy and orderly

 

presentation.

 

 

[56]      It is a requirement under Rule 53 that the applicant in its notice of motion

 

should set out the decision or proceedings sought to be reviewed and that

 

it shall be supported by an affidavit setting out the grounds and the facts

 

and circumstances upon which the applicant relies to have the decision or

 

proceedings set aside or corrected.

 

 

[57]      My finding is that Afrocentrics failed to comply with the aforementioned

 

requirements. I am of the view that Micro Focus Software will suffer

 

prejudice and will be adversely affected by a non-compliance of the

 

requirements of Rule 53.

 

 

 

 

[58]      Micro Focus Software being a private company, Afrocentrics cannot utilise

 

Rule 53 under the circumstances of this matter. Micro Focus Software and

 

Afrocentrics entered into a private agreement (Additional Fulfilment

 

Agreement) and accordingly, the termination of the said agreement does

 

not fall within the ambit of an administrative action.

 

            Due to the contradictions and mutually destructive relief as sought out by

 

Afrocentrics’ under its Part A and Part B I find that Rule 53 has no

 

application herein.

 

 

[59]      The contention by Aforcentrics that its review application is in terms of the

 

Promotion of Administrative Justice Act 2000 (PAJA) is rejected as it lacks

 

factual and legal basis regard having had to its application.

 

 

CLAIM FOR DAMAGES

 

 

[60]      Afrocentrics’ claims for damages is in fact based on the notion of what it

 

would have earned had its Fulfilment Agreement with Micro Focus

 

Software not been terminated.

 

 

[61]      The submission by Afrocentrics is that its claim is for compensation and

 

not for damages as alleged by Micro Focus Software. The claim for

 

compensation is as a result of the unlawful and unconstitutional

 

termination of its Fulfilment Agreement so argued Afrocentrics.

 

 

[62]      It is telling that from the reading of the papers herein, one cannot off hand

 

determine the nature of the damages claimed. As a consequence thereof,

 

Micro Focus Software is disadvantaged as it could not properly respond.

 

More so one cannot glean from the papers what the cause of action is for

 

the claim for damages.

 

 

            DECLARATORY RELIEF SOUGHT

 

 

[63]      Micro Focus Software contends that Afrocentrics’ declaratory relief is

 

incompetent as it is non-compliant with the elements of a declaratory.

 

 

[64]      On the other hand, Afrocentrics’ submission is that what Micro Focus

 

Software raises herein is a matter it should address in its answering

 

affidavit. It contends that it has in fact fulfilled the elements for a

 

declaratory and that Micro Focus Software will suffer no prejudice.

 

 

[65]      Section 19 (1) (a) (iii) of the Supreme Court Act provides as follows: -

 

            19(1) (a) A provincial or local division shall have jurisdiction over all

 

persons residing or being in and in relation to all causes arising and all

 

offences triable within its area of jurisdiction and all other matters of which

 

it may according to law take cognisance, and shall subject to the

 

provisions of ss (2), in addition to any powers or jurisdiction which may be

 

vested in it by law, have power-

 

i.              …

ii.            …

iii.           in its discretion, and at the instance of any interested person, to

 

enquire into and determine any existing, future or contingent right

 

or obligation, notwithstanding that such person cannot claim any

 

relief consequential upon the determination.

 

 

[66]      The question whether a declaratory order is to be made or refused rests

 

on the following approach: -

 

 

i)             The court must be satisfied that the applicant has an interest in an

 

existing, future or contingent right or obligation;

 

ii)            The discretion by the court to either grant or refuse the order sought if

 

satisfied that the conditions in (i) above, have been proven;

 

 

iii)           The declaratory relief sought by the Afrocentrics is indeed not competent

 

in view of the averments contained in its application.

 

 

 

 

[67]      There is no basis for the contention that the termination of the Fulfilment

 

Agreement entered into between the parties is unfair, arbitrary and

 

capricious as it violates Section 217 of the constitution. Further that it

 

infringes upon Afrocentrics’ right to human dignity undermining the

 

B-BBEE Act and that its conduct amounts to collusive behaviour and

 

abuse of dominance. The collusive allegation is best suited for the

 

competition commission.

 

Such concerns did not arise as aforementioned when Afrocentrics was still

 

an additional Fulfilment agent.

 

            It is not enough for Afrocentrics to simply allege that it’s right to human

 

dignity and its constitutional rights were contravened.

 

            In the premises, I am not satisfied that Afrocentrics has satisfied the

 

elements of the declaratory relief it seeks.

 

 

MUTUALLY DESTRUCTIVE AND CONTRADICTORY RELIEF

 

 

[68]      Micro Focus Software’s contention is that Afrocentrics’ claims in the main

 

application are contradictory and mutually destructive and impossible to

 

respond thereto.

 

The end result thereof is that Micro Focus Software submitted that it is

 

unable to determine which case by Afrocentrics is to be met.

 

 

[69]      According to Micro Focus Software the relief sought by Afrocentrics was

 

supposed to have been sought in the alternative and not sought

 

simultaneously as Afrocentrics did, resulting in Micro Focus Software

 

being prejudiced. It submitted that there is in fact a dispute of facts in the

 

main application by Afrocentrics.

 

 

[70]      Afrocentrics denies that its claims are contradictory and mutually

 

destructive.

 

It is submitted by Afrocentrics that the suspension of the Fulfilment

 

Agreement in its Part A of its main application is for an interim relief

 

pending finalisation of its Part B of its notice of motion.

 

            The assertion by Afrocentrics is that the relief sought in Part B is not

 

contradictory and mutually destructive as they complement each other.

 

Afrocentrics submitted that the court has wide remedial power to decide a

 

constitutional matter and make any other order which is just and equitable.

 

            What Micro Focus Software has to do is to file its answering affidavit to the

 

main application and the court will make a determination based on the

 

merits of the matter.

 

 

[71]      Afrocentrics’ contention is that whether or not there arise material bona

 

fide disputes of facts in motion proceedings is not a matter to be determined in terms of Rule 30 and submitted that there are in fact no material and bona fide disputes of fact in its application. It called upon Micro Focus Software to raise such issues of disputes of fact in its answering affidavit.

 

            It is not sufficient for the applicant to simply state that its relief sought in

 

Part A is intended to mitigate its losses and to uphold its constitutional

 

rights. More is expected from Afrocentrics to explain and elaborate on its

 

assertion for the relief sought in Part A. The constitutional issues and

 

concerns were only raised after the termination of Afrocentrics as an

 

Additional Fulfilment agent and such issues were not raised during the

 

operation of the Additional Fulfilment Agreement.

 

 

[72]      I find that for Afrocentrics to seek the suspension of the SITA Agreement

 

and in the same breath seeks for the directive to restore the status quo

 

between SITA and Micro Focus Software to be indeed contradictory and

 

mutually destructive.

 

            Equally so it is contradictory and mutually destructive for Afrocentrics to

 

pray for a review and a declaratory order against the SITA Agreement,

 

SITA Fulfilment Agreement and Partner Agreement alleging that it

 

frustrates the objects of Broad Based Black Economic Empowerment

 

            Act 53 of 2003 and it is unconstitutional as it gave Micro Focus Software

 

the sole discretion to decide whether to appoint or terminate any

 

Additional Fulfilment agent.

 

 

[73]      Afrocentrics also seeks an order declaring under Part B that by

 

terminating the SITA Fulfilment Agreement and Partner Agreement Micro

 

Focus Software contravened Section 217 of the Constitution and if

 

successful with this prayer, the court should insert certain clauses to

 

comply with the constitution. On the other hand, Afrocentrics seeks the

 

enforcement of the agreements it deems unconstitutional, in contravention

 

of the Broad Based Black Empowerment Act and State Information

 

Technology Agency Act 88 of 1998 and seeks damages.

 

 

[74]      I do not agree that the claims in PART A and PART B of Afrocentrics’

 

relief complement each other.

 

The relief sought is inconsistent and Micro Focus Software is left with a

 

choice of electing which of the rights alleged therein is to pursue.

 

It might indeed be so that inconsistent claims may be in the alternative

 

provided that the other party is not embarrassed and prejudiced

 

Afrocentrics did not seek its relief in the alternative but simultaneously

 

sought such relief as I have already found.

 

See Kragga Kamma Estate CC & Another v Flamagan 1995 (2) SA

 

367 (A) at 374 H-I

 

 

[75]      My view is that one cannot seek an interim relief on an agreement that it

 

alleges is invalid, unconstitutional and in contravention of BBBEE Act and

 

SITA Act.

 

 

 

[76]      I conclude that the application of Afrocentrics in the main application is

 

irregular and improper.

 

 

[77]      Micro Focus Software is entitled to be informed of the case it is required to

 

meet.

 

 

[78]      It was held in Naidoo v Sunker [2011] ZA SCA 216 paragraph 19 that: -

 

“In application proceedings the notice of motion and affidavits define the issues

 

between the parties and the affidavits represent their evidence. If an issue is not

 

cognisable or derivable from these sources there is little or no scope for reliance

 

on it. It is a fundamental rule of fair civil proceedings that parties, both plaintiffs

 

and defendants, should be appraised of the case which they are required to

 

meet; one of the manifestations of the rule is that he who relies on a particular

 

section of a statute must either state the number of the Section and the statute,

 

or formulate his case sufficiently clearly so as to indicate what he relied on.”

 

 

[79]      The relief sought in the main application of Afrocentrics is impossible to

 

understand and respond properly thereto.

 

Micro Focus Software is thus prejudiced in the further conduct of its

 

litigation.

 

 

[80]      I accordingly find that Micro Focus Software has demonstrated that non

 

observance of Rule 30 by Afrocentrics is adverse and prejudicial to its

 

cause and to a further conducting of its litigation if the irregular steps

 

complained of are not removed.

 

 

[81]      The court in Fischer and Another v Ramahlele and Others 2014 (4) SA

 

614 SCA paragraph 13 found as follows: -

 

            It is for the parties in the pleadings or affidavits (which serve the function

 

of both the pleadings and evidence) to set out and define the nature of the

 

dispute and it is for the court to adjudicate upon those issues that is to

 

ever where the dispute involves an issue pertaining to the basic human

 

rights guaranteed in the constitution for “it is impermissible for a party to

 

rely on a constitutional complaint that was not pleaded”. There are cases

 

when the parties may expand those issues by way in which they conduct

 

the proceedings. There may also be instances where the court may mero

 

motu raise a question of law that emerges fully from the evidence and is

 

necessary for the decision of the case. That is subject to the proviso that

 

no prejudice will be caused to any party by it being decided. Beyond that it

 

is for the parties to identify the dispute and for the court to determine that

 

dispute and that dispute alone”

 

 

 

[82]      Afrocentrics failed to pass muster in this regard. It raised issues of human

 

dignity and infringement on its constitutional rights without further

 

explaining the basis thereof.

 

Its relief as aforementioned are mutually destructive, contradictory and

 

inconsistent.

 

 

[83]      Afrocentrics’ main application is therefore irregular and improper.

 

 

[84]      Consequently the following order is made: -

 

 

1)    The applicant’s main application is irregular and improper;

 

2)    The applicant to pay the costs of the application inclusive of the costs of

 

two counsel.

 

 

 

 

                                                                                                MADIBA SS

ACTING JUDGE OF THE GAUTENG DIVISION, PRETORIA

 

Appearances:

Applicant’s Counsel                        : Advocate Farzanah Karachi

 

Applicant’s Attorneys                    : Gwina Attorneys Incorporated

 

                                                           

 

Second Respondent’s Counsel    : Advocate Michelle Le Roux SC

                                                      Advocate Kathleen Hardy

 

 

Second Respondent’s Attorneys  : Werksmans Attorneys

 

 

 

Date of hearing                  : 29 July 2020

Date of judgment               : 29 January 2021

 

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