Transnet SOC Limited v Gijima Holdings (Pty) Ltd (Leave to Appeal) (2025-075722) [2025] ZAGPPHC 1367 (12 December 2025)

begin wrapper begin container begin header begin slogan-floater end slogan-floater - About SAFLII About SAFLII - Databases Databases - Search Search - Terms of Use Terms of Use - RSS Feeds RSS Feeds end header begin main begin center # South Africa: North Gauteng High Court, Pretoria South Africa: North Gauteng High Court, Pretoria You are here: SAFLII >> Databases >> South Africa: North Gauteng High Court, Pretoria >> 2025 >> [2025] ZAGPPHC 1367 | Noteup | LawCite sino index ## Transnet SOC Limited v Gijima Holdings (Pty) Ltd (Leave to Appeal) (2025-075722) [2025] ZAGPPHC 1367 (12 December 2025) Transnet SOC Limited v Gijima Holdings (Pty) Ltd (Leave to Appeal) (2025-075722) [2025] ZAGPPHC 1367 (12 December 2025) Download original files PDF format RTF format make_database: source=/home/saflii//raw/ZAGPPHC/Data/2025_1367.html sino date 12 December 2025 IN THE HIGH COURT OF SOUTH AFRICA (GAUTENG DIVISION: PRETORIA) Case number: 2025-075722 (1)      REPORTABLE: NO (2)      OF INTEREST TO OTHER JUDGES: NO (3)      REVISED DATE 12 December 2025 SIGNATURE In the matter between: TRANSNET SOC LIMITED Applicant and GIJIMA HOLDINGS (PTY) LTD Respondent JUDGMENT: LEAVE TO APPEAL MINNAAR AJ Introduction: [1] Transnet approached the urgent court in June 2025 for relief, directing Gijima to comply with the terms of a Master Service Agreement (‘the MSA’) governing the IT and hosting services provided by Gijima to Transnet. Compliance was sought by 30 June 2025 or such date as the court may order. The application was referred to oral evidence on the following defined referral points: 1. Whether, as at the date of the launch of Transnet’s application, it was impossible for Gijima to perform its obligations under the MSA. 2.     Whether, on a proper interpretation of the MSA, to keep the services from being interrupted, whatever the incoming service provider had to do when coming into the contract with the applicant in 2020, the next incoming service provider would have to do when taking over from Gijima; alternatively , 3.     Whether there is a tacit term in the MSA that keeps the services from being interrupted, whatever the incoming service provider had to do when coming into the contract with the applicant in 2020, the next incoming service provider would have to do when taking over from Gijima. 4.     Whether the exceptio non adimpleti contractus finds application herein (additional point of reference as requested by Gijima during the case management meeting) . 5.     Whether annexure “FA12” to the founding affidavit constitutes an agreement between the parties (identified as a relevant point by me) . 6.     Whether Transnet has the technical ability and infrastructure to take over the IT services from Gijima (identified as a relevant point by me) . [2] Five days of technical and intricate oral evidence were presented. This evidence was considered in conjunction with the affidavits, referenced documents and the detailed heads of argument and oral submissions by counsel. On 16 October 2025, I delivered judgment. In the judgment, the application was dismissed with costs on the attorney and client scale, inclusive of the costs of two counsel. The dismissal was premised on the conclusion: a. At the time of the application's launch, Transnet was not ready to receive the disengagement services it now seeks to compel. b. Transent had no transition plan, no technical readiness, and no clarity on how the most critical component (the mainframe) was to be migrated.  Transnet's own witness, Mr Bhat, explicitly conceded that even the initial assessment necessary to determine whether the mainframe could be moved had not begun by the time of launch, nor was it complete by the time oral evidence commenced. c. The attempt to compel performance in the face of Transnet’s own material non-performance is not only without merit, but also impermissible. d. The exceptio non adimpleti contractus entitles Gijima to withhold performance until Transnet has fulfilled its reciprocal obligations under the MSA.  Chief among those is the provision of a viable transition plan. That obligation has not been met. In its absence, it was and remains impossible for Gijima to perform. e. Transnet’s decision to approach this court prematurely and urgently resulted in extensive litigation. Mr Bhat’s witness statement was deposed to on 11 July 2025. In his statement, Mr Bhat made it clear that Microsoft, as Transnet’s transition partner, still had to conduct an essential assessment and predicted it would take six to eight weeks. Despite being aware of this crucial shortcoming, Transnet elected to proceed with its case. As an afterthought, Transnet attempted to introduce an amended notice of motion after five days of oral evidence. The way Transnet elected to proceed constitutes recklessness in prosecuting the application. This resulted in significant costs for Gijima, for which Gijima should not be left out of pocket. [3] Transnet lodged an extensive application for leave to appeal, consisting of seventeen grounds on which it is alleged that I erred in my judgment. During the argument, it was submitted by Transnet’s counsel that the grounds for leave to appeal can be considered under three thematic issues, to wit: a. The Bhat concession dealing with the testimony of Microsoft’s Mr Bhat, on behalf of Transnet, that it would take six to eight weeks to successfully complete the migration (covering grounds 1, 3, 8 and 13 of the application). b. The term issue, dealing with the interpretation of the terms of the MSA (covering grounds 5 and 12 of the application). c. The transition issue, dealing with Gijima’s obligation to migrate the remaining services to Transnet (covering grounds 2, 4, 6, 7, 9, 10, 11 and 14 of the application). [4] The following grounds were not part of the thematic issues relied on by the applicant’s counsel, and these grounds, although included in the heads of argument, were not explicitly addressed during oral argument : a. Ground 15: not accepting “FA12” as a binding agreement between the parties. b. Ground 16: refusing to grant Transnet the amendment it sought after the conclusion of five days of oral evidence. c. Ground 17: granting punitive costs against Transnet. [5] In terms of the application and submissions by counsel, it is Transnet’s case that there are reasonable prospects that the appeal would succeed. It is further the case that, in addition to reasonable prospects of success, there is a compelling factor to grant leave to appeal, as: a. The application raises pre-eminent issues relating to the enforcement of contractual obligations in respect of the MSA, whose premise was on cost-saving regarding the provision of the service by Gijima to Transnet; and b. Transnet ought not to be exposed to unbudgeted financial expenditure in respect of continuing services, as a result of Gijima’s own refusal to co-operate with Transnet to bring about the completion of disengagement services. [6] Transnet sought leave to appeal to the Full Court of this Division, alternatively, to the Supreme Court of Appeal. Leave to appeal: test: [7] Applications for leave to appeal are dealt with in terms of Rule 49 of the Uniform Rules of Court, read with sections 16 and 17 of the Superior Courts Act 10 of 2013 (“the Superior Courts Act&rdquo ;). [8] Section 17(1) of the Superior Courts Act provides the test applicable to applications for leave to appeal. Section 17(1) reads as follows: “ (1) Leave to appeal may only be given where the judge or judges concerned are of the opinion that- (a)        (i)     the appeal would have a reasonable prospect of success; or (ii)      there is some other compelling reason why the appeal should be heard, including conflicting judgments on the matter under consideration; (b)      the decision sought on appeal does not fall within the ambit of section 16 (2) (a); and (c)      where the decision sought to be appealed does not dispose of all the issues in the case, the appeal would lead to a just and prompt resolution of the real issues between the parties.” [9] Section 17(1)(a)(i) of the Superior Courts Act was dealt with in the decision of the Land Claim Court in The Mont Chevaux Trust v Tina Goosen & 18 Others 2014 (JDR 2325 (LCC); 2014 JDR 2325 in which Bertelsmann J held that the use of the word “ would” (as opposed to could) in the provisions is an indication that the threshold for leave to appeal has been raised. It was further held that the word “ would” indicates a measure of certainty that another court will differ from the judgment appealed against. [1] [10] On the rigidity of the threshold, Plaskett AJA (as he then was), in which Cloete JA and Maya JA (as she then was) concurred, wrote the following S v Smith 2012 (1) SACR 567 (SCA) ([2011] ZASCA 15) at paragraph 7: 'What the test of reasonable prospects of success postulates is a dispassionate decision, based on the facts and the law that the Court of Appeal could reasonably arrive at a conclusion different to that of the trial court. In order to succeed, therefore, the appellant must convince this Court on proper grounds that he has prospects of success on appeal and that those prospects are not remote, but have a realistic chance of succeeding. More is required to be established than that there is a mere possibility of success. That the case is arguable on appeal or that the case cannot be categorised as hopeless. There must, in other words, be a sound, rational basis for the conclusion that there are prospects of success on appeal.' [11] The following observation in Democratic Alliance v President of the Republic of South Africa and Others (21424/2020) [2020] ZAGPPHC 326 (29 July 2020), ( coram: Mlambo JP, Davis JP and Molefe) is authoritative regarding the test for leave to appeal: ‘ [4]      The test as now set out in s 17 constitutes a more formidable threshold over which an applicant must engage than was the case.  … [5]      … Leave to appeal is not simply for the taking.   A balance between the rights of the party which was successful before the court a quo and the rights of the losing party seeking leave to appeal need to be established so that the absence of a realistic chance of succeeding on appeal dictates that the balance must be struck in favour of the party which was initially successful. [6] The second basis upon which leave should be granted is that there is a compelling reason, that is apart from the existence of conflicting judgments on the matter under consideration which require clarification from a higher court.  In essence the compelling reason is whether the case raises issues of significant public importance.   See Zuma v Democratic Alliance 2018 (1) SA 200 SCA at para 57.   But even here caution must be exercised. As Wallis JA said in Minister of Justice and Constitutional Development v Southern African Litigation Centre 2016 (3) SA 317 (SCA) at para 24: ‘ That is not to say that merely because the High Court determines the issue of public importance, it must grant leave to appeal.   The merits of the appeal remain vitally important and will often be decisive .’(our emphasis)’ [12] Under section 17(1)(a)(ii) of the Superior Courts Act,  the Court determining an application for leave to appeal ought to enquire whether there is a compelling reason for the appeal to be heard. [2] The enquiry is factual and, therefore, each application ought to be decided on its own facts. [13] Other considerations beyond the abovementioned statutory provisions would include where the material case is of substantial importance to the appellant, and where the decision sought to be appealed against involves an important question of law [3] or where required by the interests of justice. [4] [14] Applying the test for leave to appeal, I am not convinced that a Court of Appeal could reasonably conclude differently from the conclusion reached by me. I cannot find that Transnet has prospects of success that would lead another court to reach a different conclusion, or that the case raises issues of significant importance. [15] As the provisions of section 17(1)(a) of the Superior Courts Act clearly demand, the application must be dismissed. [16] The applicants seek a dismissal of the application for leave to appeal with costs, including the costs of two counsel on scale C. [17] Both sides retained senior counsel; accordingly, the costs on Scale C are justified. [18] Consequently, I make the following order: 1. The application for leave to appeal is dismissed with costs, including the costs of two counsel on scale C. Minnaar AJ Acting Judge of the High Court Gauteng Division, Pretoria Heard on                                    : 9 December 2025 For the Applicant                         : Adv. I V Maleka SC with Adv Z Cornelissen Instructed by                               : Mkhabela Huntly Attorneys Incorporated For the Respondent                     : Adv L J Morison SC with Adv T Ramogale Instructed by:                              : Nicqui Galaktiou Incorporated Date of Judgment                        : 12 December 2025 [1] Mont Chevaux Trust at par 6. See further Acting National Director of Public Prosecutions and Others v Democratic Alliance In Re: Democratic Alliance v Acting National Director of Public Prosecutions and Others (1957/09) [2016] ZAGPPHC 489 (24 June 2016) par 25 [2] Erasmus, Superior Court Practice (2021) A2-56 to 57 [3] Erasmus, Superior Court Practice (2021) A2-56 to 57 [4] City of Tshwane v Afriforum 2016 (6) SA 279 (CC) par 40 sino noindex make_database footer start