Instrument Transformer Technologies (Pty) Ltd v Eskom Holdings Soc Limited and Others (18623-2020) [2024] ZAGPJHC 375 (16 April 2024)

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: South Gauteng High Court, Johannesburg South Africa: South Gauteng High Court, Johannesburg You are here: SAFLII >> Databases >> South Africa: South Gauteng High Court, Johannesburg >> 2024 >> [2024] ZAGPJHC 375 | Noteup | LawCite sino index ## Instrument Transformer Technologies (Pty) Ltd v Eskom Holdings Soc Limited and Others (18623-2020) [2024] ZAGPJHC 375 (16 April 2024) Instrument Transformer Technologies (Pty) Ltd v Eskom Holdings Soc Limited and Others (18623-2020) [2024] ZAGPJHC 375 (16 April 2024) Download original files PDF format RTF format make_database: source=/home/saflii//raw/ZAGPJHC/Data/2024_375.html sino date 16 April 2024 REPUBLIC OF SOUTH AFRICA IN THE HIGH COURT of south africa GAUTENG DIVISION, JOHANNESBURG CASE NUMBER : 2020/18623; 2020/18624 & 2020/18626 1. Reportable:   No 2. Of interest to other judges:  No 3. Revised 16 April 2024 In the matter between: INSTRUMENT TRANSFORMER TECHNOLOGIES (PTY) LTD Applicant and ESKOM HOLDINGDS SOC LIMITED 1 st Respondent YURISHA PILLAY 2 nd Respondent LERATO MORIFE 3 rd Respondent ACTOM HIGH VOLTAGE EQUIPTMENT (PTY) LTD 4 th Respondent JUDGMENT WRIGHT J [1] There are three related applications before me. While there has been no formal consolidation, it is common cause that the applications effectively cover the same territory. [2] The first respondent, Eskom called for tenders relating to the supply of certain equipment to Eskom. The successful tenderer was Actom, the fourth respondent. Instrument, an unsuccessful tenderer is the applicant. The second and third respondents, Ms Pillay and Ms Morife work for Eskom and were involved in the tendering process. [3] On 29 July 2020, Instrument launched a review application. It sought to review the decision by Eskom to disqualify it from the tender process and it sought to set aside the award of the tender to Actom. [4] On 4 August 2020 Instrument sought to amend its notice of motion to add a prayer for an order that part of the award to Actom be reconsidered by Eskom. [5] It is common cause that three contracts, each for a period of four years, were awarded to Actom consequent upon its successful tender. It is further common cause that these contracts end on 14 May 2024, that is one month from the second day of the hearing of this matter, today 16 April 2024. [6] It is thus beyond doubt that the applications are moot. The contracts have been implemented. It would be unwise to attempt to reverse the flow of the water which has passed under the bridge. [7] Because the three applications are moot, a High Court may not consider the merits of the application further. See Solidariteit Helpende Hand NPC and others v Minister of Co-operative Governance and Traditional Affairs 2023 JDR 0964 ( SCA ) 31 March 2023 at paragraphs 18-21. [8] Regarding costs, the present applications were launched about two months after  the three contracts had been agreed. It seems trite that, other things being equal, the longer such contracts are in existence and are implemented, the stronger becomes the case for mootness. [9] As early as 25 November 2020, some four months after the applications had been launched, Eskom, through its attorney offered to have Eskom reconsider Instrument’s bids. There is some suggestion that this letter may originally have been part of settlement negotiations and might have been privileged for that reason. However, this letter was placed before court by Instrument so it cannot contend that I may not take it into account. [10] Instrument, instead of diligently working with Eskom to go about a reconsideration by Eskom, dragged its feet in prosecuting these applications. Instrument persists with its applications, as late as today, 16 April 2024. Punitive costs follow. [11] The time between the launching of the applications and the letter of 25 November 2020 is so short that in the circumstances of this matter it does not play an appreciable part in the question of costs. ORDER [1] The applications are dismissed. [2] In all three applications the applicant is to pay the respondents’ costs, including those of two counsel, both for the first to third respondents and for the fourth respondent, where so employed, including the costs of the hearing on 15 and 16 April 2024. [3] All costs to be on the scale as between attorney and client. WRIGHT J JUDGE OF THE HIGH COURT GAUTENG DIVISION, JOHANNESBURG Heard on:                         15 and 16 April 2024 Delivered on:                    16 April 2024 Appearances: Applicants:                      Adv Phazha Jimmy Ngandwe 076 248 0368 Ngandwepj@gmail.com Adv Keneilwe Lefaladi 064 750 7905 keneilwe@lefaladi.co.za Instructed by:                  Monyemorathoe Attroenys Inc gideon@monyemorathoe.co.za 082 332 5585 1 st - 3rd Respondents:    Adv AD Stein SC 072 395 5559 astein@group621.co.za Adv Michelle Augustine 083 382 3790 augustine@alumni.nd.edu Instructed by:                  Cheadle Thompson Heyson Inc 011 403 2765 Karien@cth.co.za 4 th Respondent               Adv A Friedman Adv D Sive Instructed by                   Norton Rose Fulbright J Bell John.Bell@nortonrosefulbright.co.za sino noindex make_database footer start