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2023
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[2023] ZAFSHC 9
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Boffin and Fundi (PTY) LTD Limited v Bloemwater and Others (6204/2022) [2023] ZAFSHC 9 (23 January 2023)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: 6204/2022
Reportable:
YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
In
the matter between:
BOFFIN
AND FUNDI (PTY) LTD
LIMITED
Applicant
(Registration
No: 2001/0226469/07)
And
BLOEMWATER
1
st
Respondent
MATJHABENG
LOCAL
MUNICIPALITY
2
nd
Respondent
THE
MINISTER OF WATER AND
SANITATION
3
rd
Respondent
HEARD
ON:
13 DECEMBER 2022
JUDGMENT
BY:
DANISO, J
DELIVERED
ON:
This
judgment was handed down electronically by circulation to the
parties' representatives by email and by release to SAFLII. The
date
and time for hand-down is deemed to be 12h00 on 23 January 2023.
[1]
This matter came before me on 13 December 2022 as duty judge, barely
a week after the end of the
fourth term. After hearing the arguments
in respect of both the urgency and the merits I reserved judgement
for the reason that,
this application was the fourth opposed urgent
application I heard on this particular day. By the end of my duty on
18 December
2022 I had presided over twenty-seven (27) urgent
applications. The respondent’s opposing papers were filed in
the afternoon
preceding the hearing at 15h50 due to the severely
truncated time periods provided by the applicant and the applicant
filed its
replying affidavit at 10h30 on the day of the hearing.
[2]
The situation was compounded by the bulky papers which were in excess
of 550 pages and this is
despite the fact that the matter was
considered to be urgent by the applicant. The filing of voluminous
papers in urgent applications
cannot be countenanced. I agree with
Werner, J that “
if
a matter becomes opposed in the urgent motion court and the papers
become voluminous there must be exceptional reasons why the
matter is
not to be removed to the ordinary motion roll.”
[1]
[3]
The relief sought by the applicant is the following:
“
1.
That condonation be granted to the Applicant for non-compliance with
the Uniform Rules of Court pertaining
to service, time limits, form
and procedure and that this application be heard as an urgent
application as contemplated in Rule
6(12);
2.
That condonation be granted to the Applicant for the
non-compliance with the provisions of Section 35 of the General Law
Amendment
Act, 62 of 1955;
3.
That the Applicant be granted leave to serve the application
on the Respondents by transmitting copies thereof via email to the
representatives of the Respondents, whilst service in terms of the
Uniform Rules is effected and that the Applicant proof service
via
email by way of a service affidavit;
4.
That the Applicant be allowed to present argument in this
matter on copies of the founding and confirmatory affidavits, and/or
annexures
thereto, on condition that on order of court shall be
uplifted prior to the original affidavits and annexures is filed on
the court
file;
5.
That a rule nisi be issued calling upon the First Respondent
to show cause, if any, to this Honourable Court on 26 January 2023 at
09:30, why the following orders should not be granted and made final:
5.1.
that the First Respondent be interdicted and prevented from
interfering with and/or obstructing the performance by the Applicant
of its contract with the Second Respondent in respect of the
Assessment Wastewater Treatment Works, Pump Stations and Reticulation
Networks in Matjhabeng Local Municipality;
5.2.
that the First Respondent be interdicted from appointing
consulting engineers to provide services to or for the Second
Respondent
on Projects, or phases of projects; for which the Second
Respondent appointed the Applicant in respect of the wasted water
treatment
projects in Matjhabeng municipality;
5.3.
that the First Respondent, as the implementing agent of the
Third Respondent, be directed to involve the Applicant in the
projects
for refurbishment and, or upgrade of the Second Respondent’s
Waste Water Treatment Works at Thabong in Hennenman in accordance
with the Applicant’s contract with the Second Respondent;
5.4.
that the Respondents be ordered to provide the Applicant with
a copy of the tri-partite agreement concluded in terms of the Third
Respondent’s intervention directive; and
6.
That the order contained in paragraphs 5.1 to 5.4 operate as
an interim interdict with immediate effect.
7.
That the First Respondent be ordered to pay the costs of
application;
8.
Alternatively, and in event of other Respondents opposing the
application, that such Respondents opposing the application be
ordered
to pay the costs of the application;
[4]
The application is directed against the first respondent (“Bloem
Water”) only and
it is premised on the grounds that Bloem Water
has transgressed the contract between the applicant and the second
respondent (“the
Municipality”). The applicant complains
that Bloem Water has usurped the Municipality’s functions and
obligations by
requiring the applicant to sign another service level
agreement in relation to same projects the applicant was appointed
for.
[5]
The background facts upon which the applicant relies on are as
follows: on 25 March 2022 the applicant
and the Municipality
concluded service level agreements in terms of which the applicant
was appointed on a pool of consulting firms
for projects involving
the construction, refurbishment and/or repair of the Municipality’s
sanitation infrastructure (“the
projects”).
[6]
It is the applicant’s case that in July 2022, approximately
three months after the applicant
was appointed the third respondent
intervened in the Municipality in terms of section 41 of the Water
Services Act
[2]
and appointed
Bloem Water as the implementing agent of the intervention project in
terms of a supposed tri-partite agreement. The
details under which
the said tri-partite was concluded are unknown to the applicant as
the respondents have failed to provide the
applicant with the copy of
the said agreement.
[7]
On 1 August 2022 Bloem Water issued the applicant with a letter of
appointment for the same project
the applicant had already been
appointed by the Municipality. The applicant accepted the appointment
on 4 August 2022 and proceeded
to render the required services.
[8]
The applicant did not sign the service level agreement provided by
Bloem Water because its material
terms differed substantially with
the term of the service level agreement the applicant concluded with
the Municipality and, it
was in any event unnecessary.
[9]
On 26 August 2022, the applicant submitted its invoices for the work
done to Bloem Water. The
invoices were not paid. The applicant’s
request for payment was met with an undertaking to pay and a request
for the applicant
to sign the service level agreement. By 13 October
2022 the invoices were still outstanding as a result, the applicant
issued a
notice of demand against Bloem Water in terms of section 3
of the Institution of Legal Proceedings Act
[3]
(“The Act). Bloem Water responded by
repudiating
the applicant’s contract and also terminated
the
applicants’ contract.
[9]
According to the applicant, the urgency of this application arose on
2 December 2022 when the
applicant discovered that Bloem Water was
side-lining it by holding site inspections with other role players
without involving
the applicant.
[10]
The applicant states that as a result of Bloem Water’s
interference with the applicant’s
contractual
rights and obligations flowing from its contract with the
Municipality, the applicant has been hindered from
executing its duties at the prejudice of the applicant and the
Matjhabeng community.
There are no other alternative remedies that
can avail to the applicant to enable the continuation of the project
except for an
interdict.
[11]
It is not in dispute that B
loem
Water
was appointed by the third respondent as an
implementation
agent in the refurbishment and upgrading of the Municipality’s
sanitation infrastructure.
[12]
According to Bloem Water, the appointment arose from a tri-partite
agreement involving Bloem
Water, the Municipality and the third
respondent.
[4]
It regulates the
scope, rights and obligations of the parties concerned. Following its
appointment, Bloem Water appointed the applicant
as the professional
service provider on 1 August 2022. In terms of the said appointment,
the applicant was required to sign a service
level agreement
outlining the terms of the appointment. The applicant accepted the
appointment but refused to sign the service
level agreement.
[13]
The application is opposed on the grounds of lack of
urgency, that the
relief
sought by the applicant is incompetent and that the requirements for
an interdict have not been met.
[14]
Bloem Water contends that t
he applicant has approached
this court for
the
relief it has already sought against Bloem Water in terms of the
notice of demand issued over two months ago on 13 October 2022.
On
that basis, it cannot be said that the matter is urgent. Furthermore,
Bloem Water is not a party to the agreement involving
the applicant
and the Municipality and due the applicant’s refusal to sign a
service level agreement with Bloem Water, there
is no contractual
relationship between the applicant and Bloem Water. Accordingly,
there is no basis for the orders sought by the
applicant.
[15]
The applicant’s notice of demand dispels the contention that
the applicant is without an
alternative remedy. The said notice
alleviates any harm that can befall the applicant in the event this
order is not granted in
that, the applicant has expressively asserted
that it will institute legal action to enforce its rights in terms of
the service
level agreement whereas, if the order is granted the
services which are urgently required by the Matjhabeng community will
be severely
impacted.
[16]
The law on urgency is trite, the authorities in that
regard are legion therefore I don’t deem it necessary to
traverse it
here.
[17]
Bloem Water’s complaint that there has been a substantial delay
in bringing the application
is warranted. On the papers it is clear
that the dispute between the applicant and Bloem Water arose at least
in October 2022 when
Bloem Water cancelled the applicant’s
contracts. The delay is extreme and there has been no attempt to
explain how it came
about however, having heard the arguments in
respect of the merits I am of the view that it is apposite that the
merits are determined.
[18]
As regards the requirements for an interim interdict, the onus is on
the applicant to prove on
a preponderance of probabilities a clear or
prima facie right even if it is open to some doubt; a well-grounded
apprehension of
irreparable and imminent harm if the interim relief
is not granted; that the balance of convenience favours the grant of
the interdict
and also the absence of another or adequate remedy.
These factors
are judged together
and not in isolation.
[19]
I am of the view that the facts of this matter do not support the
relief sought by the
a
pplicant
for the reason that,
the prevention
of performance with the terms of a contract must be due to the fault
of or at the instance of the contracting party.
[20]
In this matter,
it
is indisputable that Bloem Water is not a party to the contract the
applicant seeks to enforce accordingly, the doctrine of privity
of
contracts is germane to these facts. See
Christie’s
Law of Contract in South Africa, 7
th
edition
at page 302 where the doctrine is explained as follows:
“
The
basic idea of contract being that people must be bound by the
contracts they make with each other it would obviously be ridiculous
if total strangers could sue or be sued on contracts with which they
are in no way connected. The doctrine which prevent this ridiculous
situation arising is usually known as the doctrine of privity of
contracts: parties who are not privy to a contract cannot be sue
or
be sued on it.”
[21]
It is for these
reasons above, that I hold that
Bloem Water cannot be guilty of repudiating a contract that it is not
a party to. The
right which the applicant seeks to
protect in this regard is merely invented, it does not exist.
[22]
Similarly, it would be ridiculous to hold Bloem Water accountable for
ensuring that no other
service providers are appointed to perform the
work that the applicant has been appointed to perform by the
Municipality. There
are sufficient safeguards against
the breach of the terms of the contract by the Municipality.
[23]
It is common cause that the applicant has since been provided with a
copy of the tri-partite
agreement. I am in agreement with Bloem
Water’s contention that the fact that the third respondent’s
signature does
not appear on the said agreement does not warrant the
applicant’s persistence with the relief sought as the validity
of the
agreement has not been challenged.
[24]
In conclusion, having regard to the available facts, I
am not satisfied that the applicant has satisfied the requirements
for the
granting of the relief sought. The remedy that would be
appropriate under these circumstances would be to dismiss this
application.
[25]
On the aspect of costs, I have found no reason for the departure from
the general rule that costs
follow the result.
[26]
In the premises, I make the following order
:
1.
The application is dismissed with costs.
N.S.
DANISO, J
APPEARANCES:
Counsel
on behalf of the applicant:
Adv. Rautenbach
Instructed
by:
McIntyre van der Post
BLOEMFONTEIN
derk@mcintyre.co.za
Counsel
on behalf of the first respondent:
Adv. Mahlangu
Instructed
by:
Phatshoane Henney Attorneys
BLOEMFONTEIN
marvin@phinc.co.za
[1]
Several
Matters On Urgent Roll 18 September 2012
(2012)
4 All SA 570
(GSJ) at paragraph 15 and the unreported judgment by Cachalia, J in
Digital
Printers vs Riso Africa (Pty) Limited
case
number
17318/02
of the same division.
[2]
Act No, 108 of 1997.
[3]
Act No, 40 of 2002.
[4]
Annexure
“BW4” of the answering affidavit