KET Civils contempt of court against acting HOD falls short

The legal battle between a construction company; KET Civils, and the Free State Department of Police, Roads, and Transport is far from over as contempt of court application against Robinson Thekiso, acting HOD falls short. 

In a judgment handed down on 20 June 2022 in Bloemfontein High Court, judge Johannes Daffue dismissed the application.

BACKGROUND

The KET Civils brought an urgent application on 31 March 2022, seeking an order that the first and second respondents be declared in contempt of a court order issued by Justice Molitsoane on 31 December 2021 and that the Thekiso is committed to imprisonment for contempt of court, however subject to the condition that the relief will not come into operation once the first and second respondents satisfy the court that they have complied with the Molitsoane order and will continue to comply therewith. 

Several further orders were also sought, including an order in terms whereof the department of police, roads and transport and Thekiso be ordered jointly and severally to pay the costs of the application on an attorney and own client scale.

On 3 December 2021 KET Civils filed an urgent application in application 5660/2021 (“the main application”), seeking an interdict preventing the Department to take further steps in connection with termination notices issued by it to KET Civils concerning three road construction contracts while there was pending litigation between the parties, including appeals pursuant thereto.

On 17 December 2021 Molitsoane J heard about the so-called semi-urgent application.  The pending litigation relates to the disputes in applications 1510/2021 and 1640/2021.

On 31 December 2021, the learned judge interdicted the Department pending finalization of the disputes from taking further steps in connection with the termination notices sent by it to KET Civils concerning the three road construction contracts.  

The court also ordered that no invitations for tenders should be issued and/or third parties appointed and/or that contracts be concluded on the particular road works.

However, the department appointed the Tau Pele (PTY) LTD and Maximus Earthworks (PTY) LTD trading as Phezulu Plant which forced KET Civils to go for contempt of court and sought incarceration for Robinson Thekiso, the acting Head of Department.

The bone of contention is the settlement that Thekiso refused to sign though it is believed to be the agreement entered into with the department according to judgment. 

Judge Daffoe says acting HOD raised serious issues which were never communicated by departments’ officials and legal team, in-house lawyer, advocate, and attorney, either during the meeting on the 15th February 2022 with KET Civils or thereafter.

What was interesting was that the Department claimed KET Civils owed them R34 million.

“Out of the blue the court was told that KET Civils owed the department about R34 million which is much more than the meager amount of about R7.7 million admitted to being payable this to KET Civils”, reads judgment, 

Judge Johannes Daffoe raised some serious matters concerning how the issue of money owed by KET Civils has never been mentioned anywhere before including in negotiations. 

“Some of the issues were not even raised during the answering affidavit. In the absence of a settlement about orderly termination of the contracts and in the event of the Department succeeding in defending the order granted under application 1640/2021, KET Civils would have to resume construction works and the issue of defects and damages would not come into consideration. 

But orderly termination has been agreed upon, although the other issues are still in dispute. 

Surely, KET Civils made it clear that it did not want to go back to the sites. 

Although logic dictates that if the Department believed from the onset that KET Civils owed it money – not even to speak of an enormous amount such as R34 million – that it would not even invite settlement talks, or at best, make its stance clear at the beginning, but it is apparent that the issue of defects and damages were only considered at a late stage and when an agreement was reached about orderly termination.

If the contracts with KET Civils remained intact, damages could not be claimed at such stage, but now that the parties have agreed on termination, defects and/or damages may become relevant. 

I do not make any finding in this regard and merely point out these aspects in considering whether the Department and its Acting HOD are wilful and mala fide.”

In delivering judgment Judge Daffoe dismissed KET’s Civils contempt of court application. 

Last month we reported how Judge Daffoe kicked William Bulwane, MEC for PRT’s teeth inside after relying on regulation 14 and its subsections which do not exist to disqualify RoadMac Surfacing from a tender.

Hillary Mophethe, spokesperson for Police, Roads and Transport didnt repond to our questions which included if the department conceded their appointment of KET Civils was flawed because the department strangely applied for the court to set aside the same appointment they made.

Indeed their difficult problems are not easily.

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