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[2023] ZAFSHC 163
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Motsewarona Construction and Maintenance (Pty) Ltd v Matjhabeng Local Municipality (1752/2022) [2023] ZAFSHC 163 (20 April 2023)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: 1752/2022
Reportable:
YES/NO
Of
interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
In
the matter between:
MOTSEWARONA
CONSTRUCTION &
MAINTENANCE
(PTY) LTD
Applicant
and
MATJHABENG
LOCAL MUNICIPALITY
Respondent
CORAM:
VANZYL, J
HEARD
ON:
20 OCTOBER 2022
DELIVERED
ON
:
20
APRIL 2023
[1]
In this application the applicant is seeking payment from the
respondent in the amount
of R34 627 906.37, with interest and costs.
The applicant's cause of action is a document, dated 8 February 2022,
which document,
according to the applicant, constitutes an
acknowledgement of debt by the respondent in favour of the applicant
in the aforesaid
amount.
[2]
According to the applicant it rendered services to the respondent
between August 2018
and August 2020 pursuant to lawful procurement
processes which resulted in various letters of appointment concluded
between them.
The acknowledgement of debt emanates from the aforesaid
services which the applicant duly rendered to the respondent, but for
which
the respondent failed to pay.
[3]
The respondent is opposing the application. An answering affidavit
was filed on behalf
of the respondent, to which the applicant
subsequently filed a replying affidavit.
[4]
For the sake of clarity:
1.
I will refer to this application as the main application; and
2.
I will refer to the parties as cited in the main application.
[5]
The merits of the main application are not relevant for present
purposes.
Documents/papers
filed subsequent to the filing of the replying affidavit in the main
application and before the commencement of
the hearing on 20 October
2022:
[6]
On 9 September 2022 the main application was enrolled by the
applicant for hearing
on 20 October 2022.
[7]
The applicant's heads of argument were supposed to have been filed by
12h00 on Wednesday,
12 October 2022, but same were only filed on
Thursday, 13 October 2022 at 10h35, without any explanation for the
said late filing
thereof.
[8]
The respondent's attorney of first instance thereupon requested the
applicant's attorney
of first instance by means of two letters, dated
13 October 2022 and 14 October 2022 respectively, to agree to a
postponement of
the application. Both letters were met with no
response.
[9]
For the aforesaid reason, and also because, according to the
respondent, it "
has become necessary for Respondent to file a
Further Affidavit and needs to seek leave to do so
", the
necessity for which "
having arisen because of the new
evidence and material introduced by Applicant in its Replying
Affidavit without leave of the Court
", the respondent filed
an application for postponement on 17 October 2022. In terms of the
Notice of Motion the respondent
requested that the main application
be postponed to a date to be agreed upon by the parties,
alternatively a date to be determined
by the court. No Notice of
Opposition or any other form of response was filed by the applicant
in response to the respondent's
application for postponement.
[9]
On 19 October 2022, the day before the hearing of the main
application, the respondent filed its interlocutory application for
leave to file a Further Affidavit. The proposed Further Affidavit is
attached to the said application as annexure "X".
[10]
The morning of the hearing of the main application, shortly before
the commencement thereof, I received a document from
the General
Office titled "Applicant's Supplementary Note on Authority",
dated 20 October 2022, and which, according
to the Registrar's stamp
appended thereto, had been filed at court that very same morning. The
said Supplementary Note dealt with
the question of the authority of
the deponent to the answering affidavit filed in opposition to the
main application.
Events
at the commencement of the hearing on 20 October 2022:
[11]
Mr Grobler appeared on behalf of the applicant and Mr Louw on behalf
of the respondent.
[12]
At the commencement of the hearing I expressed my uncertainty as to
whom to call upon first, since I was, due to the
circumstances set
out above, in the dark as to what I would be requested or expected to
adjudicate upon during that day's hearing.
[13]
Mr Grobler then addressed me and stated that since the authority of
the deponent to the answering affidavit filed on
behalf of the
respondent in the main has been placed in dispute from the outset, he
submits that it would be apposite for me to
adjudicate upon the
question of authority, since it is an overarching question for
purposes of both the application for postponement
and the main
application. He consequently requested that I indeed deal with the
two applications accordingly. Mr Grabler indicated
that it was for
that purpose that he filed the "Supplementary Note on
Authority", which, according to him, was not meant
and should
not be considered as supplementary heads of argument, but a mere
summation of the aspects which he shall address during
his oral
argument.
[14]
I then indicated to Mr Grobler that I am not inclined to deal with
the matter in such a piecemeal manner. I indicated
that I have the
main application before me in two lever arch files which consists of
559 pages, in relation to which the applicant's
heads of argument had
been filed late and the respondent had not filed any heads of
argument. I received the respondent's application
for postponement of
the main application three days prior to the hearing in which the
respondent indicated that it will be requesting
a postponement of the
main application in order to bring an application for leave to file a
Further Affidavit and to file its heads
of argument, to which no
response whatsoever was forthcoming from the applicant. The afternoon
prior to the hearing I received
a third lever arch file containing
the respondent's application for leave to file a Further Affidavit,
to which the Further Affidavit
is attached, the totality of which
comprises another approximately 400 odd pages. All of the above
occurred without a single indication
to me as to what the respective
parties will be requesting from me during the hearing. I presumed
that I will be requested to entertain
the merits of the application
for postponement. Then, very shortly before the commencement of the
hearing, I received the applicant's
Supplementary Note, in which it
was for the first time indicated that the applicant will apparently
request that the issue of authority
be adjudicated upon during the
hearing.
[15]
I indicated that if I adjudicate upon the authority issue only, it
means that depending on what finding I make, the matter
will have to
be re-enrolled and dealt with at a letter stage again, for purposes
of the adjudication of the application for leave
to file a Further
Affidavit, which application was not yet ripe for hearing at that
stage, and/or eventually for the determination
of the merits of the
main application. I indicated that I would prefer for the matter to
be dealt with once off when it is ripe
for hearing in totality.
[16]
Mr Grabler submitted that the fact of the matter is that should I
find that the deponent to the answering affidavit filed
in opposition
to the main application, Mr Vanga, was not authorised to have opposed
the application, it will mean that there will
no longer be opposition
to the main application, the application will be considered to be
unopposed and can then be dealt with
swiftly on the unopposed motion
court roll. Such a finding will have the subsequent result, so Mr
Grabler contended, that Mr Vanga
also has no authority ("
as
no new evidence of any authority has been presented
") to
apply for the postponement of the main application and then there is
no proper application for postponement. If Mr Vanga
is found not to
have been authorised to oppose the main application, it will
axiomatically also follow that there is then no proper
application
for leave to file a Further Affidavit, since the same purported
authorization is being relied upon in that founding
affidavit.
[17]
Mr Louw indicated that the respondent was just as in the dark as I
was, especially because no response was forthcoming
from the
applicant with regard to the
respondent's application for postponement. However, because
Mr
Lauw anticipated the possibility that the applicant may have the
stance of requesting that the authority issue be adjudicated,
he
drafted heads of argument on the point the previous night which came
to hand shortly before the commencement of the hearing.
He, however,
did not consider it proper that the heads be filed directly at my
chambers instead of it being formally handed up
in open court after
leave thereto be granted by the court. He consequently indicated that
he is ready to argue the question of
authority, should I so
determine.
[18]
As a result of the aforesaid submissions, I indicated that I was
willing to entertain the application
for postponement and the main
application on the issue of authority. I then accepted Mr Louw's
heads of argument, dated 20 October
2022, from the bar. Mr Grabler
indicated that he was unaware that his Supplementary Note had found
its way directly to me, that
that was not his intention and that he
apologises for same.
[19]
Both counsel then fully addressed me on the authority dispute.
The
relevant averments in the answering- and replying affidavits filed in
the main application:
[20]
I deem it apposite to set out the averments in respect of authority,
or the lack thereof, contained
in the answering- and the replying
affidavits.
[21]
Mr Mtutuzeli Vanga ("Mr Vanga") deposed to the answering
affidavit in opposition to
the main application. In the said
affidavit Mr Vanga, inter alia, averred that he is:
"1.1
A major male person and the Manager: Legal Services of the
respondent, Matjhabeng Local Municipality;
1.2
Authorised to oppose this application on behalf of the respondent, as
appears
from the delegation of powers annexed hereto as annexure "AA1";
"
[22]
The aforesaid annexure "AA1" to the answering affidavit is
a letter addressed to Bokwa
Attorneys, dated 26 May 2022. It reads as
follows:
"RE:
DELEGATION OF POWERS: MP VANGA
The
abovementioned matter refers.
In
terms of the delegated powers as assigned to me as the Municipal
Manager as per Item IA10 of 2021 dated 22 November 2021, I hereby
delegate the following powers to Mr MP Vanga, Acting Executive
Director: Corporate Services (Senior Manager: Legal Services).
Section
59 of the Incidental Powers of the approved delegated powers:
Signing,
authenticating and/or executing documents to commence legal process
with regards to the matters involving the following
service
providers.
1.
2.
Motsewarona Construction & Maintenance (Pty) Ltd.
3.
4.
5.
6.
We
trust that you will find the abovementioned in order."
The
letter was signed by the Municipal Manager and to the right of her
signature, Mr Vanga's signature was appended above his name
and the
inscription "Accepting delegation of powers".
[23]
Mr Vanga also stated in the answering affidavit that both the Chief
Financial Officer and the
Municipal Manager of the respondent were
unwilling to depose to confirmatory affidavits pertaining to certain
issues regarding
the applicant's claim.
[24]
Mr Vanga furthermore stated as follows at paragraph 23 of the
answering affidavit:
"One
of the aspects which concerned me after this application had been
served, was the fact that the accounting officer/municipal
manager,
Zingisa Khuthaza Tindleni
, did not give instructions that the
application be opposed "
[25]
On 20 July 2022 the applicant filed a notice in terms of rule 7 in
which it was stated that the
applicant "
disputes the
authority of the deponent to the respondent's answering affidavit, Mr
Mtutuzeli Vanga, to oppose the application on
behalf of the
respondent and to act on respondent's behalf'
. The notice further
stated that the applicant requires "
the necessary
Council/Accounting Officers resolution to authorise said deponent to
act as he has
".
[26]
In the respondent's reply to the aforesaid notice, dated 3 August
2022, the respondent filed
documents which it described as follows:
"1.
Extract of Minutes of Council Meeting held on 22 November 2021 signed
by the Speaker,
Councillor B Stofile;
2.
Table of contents of the delegated powers;
3.
Incidental powers, paragraph 2; and
4.
Letters of written delegation of power given to M P Vanga, Senior
Manager: Legal
Services."
[27]
Part B, No. 35 of the second document listed above, deals with
"Incidental powers (Powers
not explicitly conferred by
statute)", being the third document listed above, which, inter
alia, reflects the following:
Section:
1
Power
conferred
: Commencing with any legal process,
whether civil or criminal, on behalf of the Municipality.
Delegating
Authority
: Council
Delegated
body
: None
Conditions:
Subject to receiving a report from the Executive Mayor
Sub-delegates:
R
Section
:
2
Power
conferred
: Defending or opposing
any legal process, whether civil or criminal, against the
Municipality.
Delegating
Authority
: Council
Delegated
body
: Municipal Manager
Conditions
:
After consultation with the relevant departmental head
Sub-delegates
:
Y
[28)
A copy of the letter attached to the answering affidavit as annexure
"AA1", the contents of which I quoted earlier,
was also
filed as part of the rule 7 reply, being the fourth document listed
in the said reply.
[29]
In the replying affidavit the following allegations were made in
paragraph 3 thereof under the heading "Lack of Authorisation":
"3.1
Mr Vanga and Messrs Bokwa Attorneys ("Bokwa") have not
received instruction from the Municipal Manager to oppose
this
application.
3.2
Mr Vanga attached a delegation of powers letter ("delegation
letter") from the
Municipal Manager dated 26 May 2022 to his
answering affidavit as contended proof that he is authorised to
depose to the answering
affidavit and to oppose this application on
the respondent's behalf.
3.3
In response to the rule 7 that was issued by the applicant to the
respondent disputing the
authority of Mr Vanga, an extract from the
Council minutes dated 22 November 2021 was attached indicating in
essence that the Municipal
Manager is the delegating body to delegate
the power to oppose any legal process and that, in terms of the
delegation letter that
such authorisation was purportedly given to Mr
Vanga (which is in dispute).
3.4
Mr Vanga's alleged authority is defective and of no legal consequence
in that:
3.4.1
The delegation letter merely authorizes Mr Vanga to perform acts
related to the commencement of legal process
against inter alia the
applicant.
3.4.2
The delegation letter does not make mention of any sort of dispute by
the respondent against the duly signed acknowledgement
of debt.
3.4.3
Further to this, Mr Vanga is not instructed nor authorized to oppose
the current relief.
3.4.4
Finally, the true Accounting Officer of the respondent, Mrs. Z.
Zingesi in her position as Municipal Manager ("Mrs.
Zingesi'?,
does not support the opposition to the applicant's application. In
fact, Mrs Zingesi confirms that she did not sanction
such opposition,
nor does she take issue with the amounts claimed by the applicant.
3.5
Indeed, the Municipal manager gave Mr Vanga and Bokwa the instruction
not to oppose this
application as the monies are due to the
applicant, hence the acknowledgement of debt. ...
3.8
What is clear, is that Mr Vanga has gone on a frolic of his own...
3.9
Consequently, this fully rebuts any proper foundation for Mr Vanga,
or whoever he took his
instructions from, to oppose the current
relief sought."
The
founding affidavit filed in support of the respondenfs application
for postponement:
[30]
The founding affidavit deposed to by Mr Vanga filed in support of the
postponement, contains
the following allegations in respect of
authority:
1.
"1.2 ...my authority remains the same as it was at the time of
the filing
of the answering affidavit. .."
2.
"2. As will be noted from
the Notice
in terms of Rule 7 issued by the
...
applicant... on 20 July 2022, the authority of the Municipality's
attorneys of record is not challenged."
3.
"30. The applicants have also relied on hearsay evidence and
attempt alleging
that Tindleni did not authorize me to depose to the
answering affidavit and state that she does not support the
opposition of the
application, because she has verified the claim as
aforesaid. This is not so:
30.1
... she unlawfully suspended me in an attempt to frustrate me in
investigating the applicant's claim, whereafter
I brought an urgent
application for an interdict uplifting the suspension, under case
number 3922/2022 in the above Honourable
Court ("the interdict
application").
30.2
In her answering affidavit dated 19 August 2022 Tindleni said under
oath that "
The municipal council resolved to oppose the
proceedings" (referring to the main application and five (5)
others) and that
she "... suggested ... that power be delegated
to legal services" and she "accordingly signed the
delegation
" (meaning the delegation to '1egal services"
- being me) to oppose the main application. I will ensure, if
necessary,
that the papers in the interdict application are properly
before this
Honourable
Court when this application is heard, to prove the above.
30.3
Consequently, Tindleni can never seriously allege that she did not
authorize the opposition of the application"
Approach
in reaching my conclusions:
[31]
Like I have indicated earlier, both Mr Grabler and Mr Lauw fully
addressed me on the question
in respect of authority. For reasons
that will become evident shortly, I, however, do not intend dealing
with the merits of their
arguments.
[32]
For purposes of this judgment, I listened to the recording of the
hearing held on 20 October
2022, to ensure that I have a proper
recollection of the arguments presented to me and consequently, to
ensure that my findings
in this judgment are, in my view and to the
best of my ability, correct and properly substantiated.
[33]
The arguments presented to me were based on the contents of the
answering- and replying affidavits
filed in the main application. The
factual basis of the respective arguments, and consequently counsel's
references to and reliance
upon applicable legal principles and case
law, were therefore restricted to the allegations and facts as
reflected in the aforesaid
two affidavits, which I also quoted
earlier in the judgment.
[34]
The crux of Mr Grobler's argument, without dealing with the detail
thereof, were to the effect
that the authorization on which Mr Vanga
relies, was not properly delegated and is fatally defective in more
than one respect.
It was further Mr Grobler' s contention that
despite the fact that the respondent and Mr Vanga had been alerted to
the said defects,
both in the replying affidavit and in the
applicant's heads of argument, nothing was done by the respondent in
an attempt to rectify
same - no new evidence had been presented, no
confirmatory affidavit had been filed and/or no council resolution
had been filed
explaining and expanding upon Mr Vanga·s
authority.
[35]
Mr Louw pointed out that the challenge of authority as initially
raised by the applicant in the
rule 7 notice, were pertaining to the
authority of Mr Vanga to oppse the application on behalf of the
respondent and to act on
the respondent's behalf. However, in the
replying affidavit a new challenge was raised, in that the authority
of Bokwa Attorneys
was now challenged.
[36]
According to Mr Louw, the aforesaid new challenge in reply is one of
the reasons why it became
necessary for the respondent to file a
Further Affidavit in response thereto, but for which the leave of the
court is necessary.
Mr Lauw contended that in the proposed Further
Affidavit the respondent shows "
that what the Municipal
Manager in fact did was to delegate the authority and we append
correspondence from the Municipal Manager
where she in fact confirms
that she unwittingly delegated the authority to Vanga to oppose and
appointed Bokwa Attorneys
". It is also shown that the
Municipal Manager confirmed under oath in another application which
served in this court that
she authorised Mr Vanga to oppose the
application and that Bokwa Attorneys were properly authorised to act
on behalf of the respondent.
Mr Louw submitted that the authority of
Mr Vanga and Bokwa Attorneys is consequently clarified in the
proposed Further Affidavit.
[37]
Mr Lauw further pointed out that prayer 3 of the Notice of Motion
filed in respect of the application
for leave to file a Further
Affidavit, makes provision for the applicant to file a reply to the
proposed Further Affidavit, should
it so choose.
[38]
As a result of the totality of the aforesaid submissions, I again
perused the application for
leave to file a Further Affidavit, which
includes the proposed Further Affidavit. From a mere reading of the
proposed Further Affidavit,
it is evident that it contains numerous
averments, as well as documentary attachments, in respect of the
authority of both Mr Vanga
and Bokwa Attorneys.
[39]
I need to make it abundantly clear that:
1.
I make no finding regarding the merits or demerits, correctness or
not, of any
of the submissions and contentions made by counsel
referred to above.
2.
I make no finding regarding the admissibility and/or probative value
of the allegations
in respect of authority contained in the proposed
Further Affidavit.
3.
I am acutely aware that leave to file the proposed Further Affidavit
has not
yet been granted and that the proposed Further Affidavit has
consequently not yet been accepted into evidence as part of the main
application.
4.
I am also acutely aware that the application for leave to file a
Further Affidavit
may still be dismissed by the then presiding Judge.
[40]
The fact of the matter is that there is a pending application for
leave to file a Further Affidavit, which proposed Further
Affidavit,
inter alia
, deals extensively with the issue of authority.
Should I adjudicate upon the issue of authority at this stage based
on the papers
as they stand, I will effectively exclude the potential
evidence regarding authority as contained in the proposed Further
Affidavit,
should leave to file the Further Affidavit eventually be
granted.
[41]
When the status of the main application as it currently stands is to
be explained in action procedure terms, I would
describe it to be
that the defendant's (respondent's) case is not yet closed, it still
intends calling a witness to testify. In
those circumstances a trial
court cannot pronounce its judgment before closure of the defendant's
case. The same principle applies
here.
[42]
Should the application for leave to file a Further Affidavit
eventually be granted and the Further
Affidavit accepted into
evidence, it may have a crucial impact on the outcome of the eventual
determination of the issue of authority,
irrespective of whether it
ultimately be determined as a separate issue or as part of the
hearing on the merits of the main application.
[43]
In my view, it will not only be pre-mature, but completely irregular
and improper for me to adjudicate
upon the issue of authority whilst
the interlocutory application for leave to file a Further Affidavit
is still pending. The said
application has not yet been adjudicated;
in fact, it was not even ripe for hearing yet at the time of the
hearing in
casu
. That application and the fact that relevant
evidence in respect of authority may still be forthcoming should the
application be
granted, cannot simply be ignored.
[44]
In my view the main application is consequently to be removed from
the roll. Although the application
for postponement has become
academic, it also served before and I therefore have to make a ruling
in regard thereto. It also stands
to be removed from the roll.
[45]
In an attempt to prevent the ere-occurrence of a similar situation in
future, I deem it appropriate
that the hearing of the main
application and the application for leave to file a Further Affidavit
are to be enrolled for the same
date. That will obviously not
necessarily mean that they will be adjudicated simultaneously, since
the then presiding Judge may
and probably will determine that the
application for leave to file a Further Affidavit be adjudicated upon
first. However, at least
then the presiding Judge will be in a proper
position to determine how the matter is to be dealt with. I make no
determination
in this regard since it will obviously be in the
discretion of the court.
[46]
Unfortunately the outcome of this judgment is indicative of the
potential dangers in dealing
with, or attempting to deal with,
matters in a piecemeal fashion.
Costs:
[47]
In so far as the costs are concerned, I consider it appropriate that
costs stand over for later
adjudication. The facts and circumstances
that led to the unfortunate outcome of this judgment, are on record.
The court who presides
over the merits of the application for leave
to file a Further Affidavit and/or the merits of the main
application, will be in
a better position than myself to determine
the issue of costs once the success of the respective applications
have been determined.
Order:
[48]
The following order is made:
1.
The main application and the respondent's application to postpone,
dated 17 October
2022, are removed from the roll.
2.
The main application and the interlocutory application for leave to
file a Further
Affidavit are to be enrolled for the same date.
3.
The order in paragraph 2,
supra
, is not in any way to
interfere with the discretion of the then presiding judge as to the
how the two applications are to be dealt
with.
4.
The wasted costs of 20 October 2022, as well as the costs of the
respondent's
application to postpone, stand over for later
adjudication.
C.
VAN ZYL, J
On
behalf of the applicant:
Adv.
S. Grabler SC
Instructed
by: Kruger Venter Inc
Bloemfontein
On
behalf of the respondent:
Adv.
MC Lauw
Instructed
by:
Hill,
Mchardy & Herbst Inc.
Bloemfontein