Transnet contractor abuses appeal rule

Thekweni Marine Steel and Trade are immersed in a war with Transnet over the termination of a multi-million contract.

Durban - Attempts by Transnet to get rid of a contractor earning millions of rands to move cars from Durban Harbour have become clogged up in the legal system as a court order terminating the contract is appealed against over and over again.

Two judges have already lambasted the company concerned, Thekweni Marine Steel and Trade, for abusing the rules of appeal, and Transnet’s lawyers have cried foul over what they allege are blatant attempts to thwart the order and remain on site until the natural end of the contract in October this year.

The matter first went to court late last year after Transnet sought to cancel the agreement on one month’s notice, as it was entitled to do in terms of the two-year contract signed the previous year.

When Thekweni refused to go, Transnet brought an urgent application in the Durban High Court, citing as reasons for the cancellation 129 incidents in which vehicles were scraped and scratched, the theft of a BMW, and damage to a Ford Ranger, which was driven even though it was marked clearly with a sign saying “no brakes”.

Transnet alleged Thekweni did not want to take responsibility for these incidents. There had also been labour issues resulting in work stoppages.

But Thekweni said the terms of the contract were “unconscionable”, in that they gave Transnet arbitrary powers, and that the cancellation would have far-reaching implications for the company, which employed 700 people and had also spent millions on start-up costs.

After hearing argument, Judge Gregory Kruger ruled in Transnet’s favour. Hours later – and without the benefit of his reasons, which he only gave in writing three days later – Thekweni filed a notice of leave to appeal, which had the effect of suspending the order.

When Judge Kruger refused leave to appeal – finding that the company had acted in bad faith – that same day Thekweni filed an application in the Supreme Court of Appeal petitioning for leave to appeal. Again, no copy of the relevant order or judgment was put up.

Last month, Transnet brought a further urgent application, this time for an order in terms of the Superior Courts Act seeking to lift the suspension and enforce the order pending the SCA’s decision.

Judge Mahendra Chetty granted the order. In terms of the act, Thekweni has an automatic right to appeal against that decision and it has indicated that it intends doing so.

Effectively, this means they will appeal again, and therefore Transnet is still in limbo as regards the matter.

In his recent judgment, Judge Chetty referred to the history of appeals saying: “While there can be no complaint with a litigant acting speedily given the potential prejudice that could befall it if it were to drag its feet, on the other hand there can be no justification for a litigant flouting the rules of court to frustrate the effect of court orders, rendering them hollow.”

Thekweni’s actions pointed to a “contemptuous approach to the decision of the court”.

This was evident, he said, by seeking leave to appeal against Judge Kruger’s order when it did not know his reasons, or if they were appealable, and through the “hasty” and defective SCA appeal.

Judge Chetty noted that the SCA challenge was “remarkably brief”, with only two pages dealing with the merits.

Finding for Transnet, he said to rule otherwise “would be to condone an abuse of the rules and a strategy aimed to avoid the consequence of court orders where any delay in its implementation would render a victory in the first round of litigation to be worthless”.

Neither appeal has been set down for hearing.

The Mercury