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[2010] ZAGPPHC 573
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Makapi N.O v Equadoor Interactive (Edms) Bpk (6600/2007) [2010] ZAGPPHC 573 (9 March 2010)
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH GAUTENG
HIGH COURT, PRETORIA)
CASE N0:6600/07
DATE: 9 MARCH 2010
In the matter
between:
OUPA
MAPAKI
NO
.............................................................................................................................
Excipient
and
EQUADOOR INTERACTIVE
(EDMS)BPK
....................................................................................
Respondent
In re:
EQUADOOR INTERACTIVE
(EDMS)BPK
..........................................................................................
Plaintiff
THE MINISTER OF
LABOUR
NO
...............................................................................................
1
st
Defendant
OUPA MAPAKI
NO
......................................................................................................................
2
nd
Defendant
JUDGMENT
MURPHY J
1. This is an
exception taken by the second defendant to the plaintiffs particulars
of claim.
2. In terms of the
particulars of claim the plaintiff claims that it entered into an
agreement between itself and the defendants,
properly represented by
the second defendant, which agreement related to the provision of
information technology services to the
first defendant. The agreement
provides for the provision of services and instruction of learners in
terms of the relevant project.
3. The first
defendant is the Minister of Labour. The second defendant is Mr Oupa
Mopaki who is cited in terms of the particulars
of claim in his
official capacity as the Chief Executive Officer of Isett Seta. The
Isett Seta is an authority established by the
Minister of Labour in
terms of
section 9
of the
Skills Development Act 97 of 1998
for the
purpose of providing training in the relevant sector.
4. The plaintiff
claims R624 800 in respect of services it has allegedly rendered. It
claims the amount from the first and second
defendants jointly and
severally, one paying the other to be absolved.
5. The second
defendant raises two exceptions to the plaintiffs particulars of
claim on the basis that the particulars of claim
do not disclose a
cause of action alternatively that the particulars of claim lack
averments necessary to sustain a cause of action.
6.
The first exception maintains that the plaintiff does not have
locus
standi
to
sue on the agreement. The plaintiffs alleged cause of action against
the second defendant is founded in a written agreement,
the Service
Level Agreement attached to the Plaintiffs particulars of claim. The
plaintiff, Equadoor Interactive (Edms) Bpk is
not specifically a
party to the written agreement. However, a proper perusal of the
agreement indicates that an entity identified
as Equador Interactive
(Pty) Ltd is indeed such a party. It is obvious that there has been a
typing error and that does not sustain
an exception on the grounds of
the plaintiff lacking
locus
standi.
Accordingly,
the first exception should be dismissed.
7.
The second exception is to the effect that the plaintiffs cause of
action against the second defendant cannot be based on the
written
agreement as the second defendant is not a party to the written
agreement. The plaintiff maintains that the second defendant
acquired
neither right nor incurred any obligations in terms of the written
agreement and that there was accordingly no
vinculum
iuris
between
the plaintiff and the second defendant. Accordingly it has submitted
that the plaintiffs particulars of claim do not disclose
a cause of
action against the second defendant.
8.
Paragraph 3 and 4 of the particulars of claim, as well as the fact
that the second defendant is cited
nomine
officio
,
indicates that the second defendant is cited in his representative
capacity as the chief executive officer of the leett Seta,
which is a
statutory body. Accordingly, there is no basis for the exception.
9. In the premises,
the exceptions are both dismissed with costs.
JR MURPHY
JUDGE OF THE HIGH
COURT
Date Heard: 4
November 2009
For the
Plaintiff/Respondent: Adv FW Botes Pretoria
Instructed By:
Pieterse & Curlewis Inc., Pretoria
For the
Excipient/2
nd
Respondent: Adv SK Hasim, Pretoria
Instructed
By: Hugo
&
Ngwenya
Inc., Pretoria