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[2021] ZASCA 35
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Millennium Waste Management (Pty) Ltd v Sol Plaatje Municipality (99/2019) [2021] ZASCA 35 (7 April 2021)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case no:
99/2019
In the matter between:
MILLENNIUM WASTE
MANAGEMENT (PTY) LTD
APPELLANT
and
SOL PLAATJE
MUNICIPALITY
RESPONDENT
Neutral citation:
Millennium Waste Management (Pty)
Ltd
v Sol Plaatje Municipality
(Case
No 99/2019)
[2021] ZASCA 35
(7 April 2021)
Coram:
PONNAN, MOCUMIE, MAKGOKA and DLODLO JJA and
LEDWABA AJA
Heard
:
11 March 2021
Delivered
:
This judgment was handed down electronically by circulation to the
parties’ legal representatives by email. It has been
published
on the website of the Supreme Court of Appeal and released to SAFLII.
The date and time for hand-down is deemed to be
10h00 on 7 April
March 2021.
Summary:
Contract – unenforceable
agreement to agree. Special leave – requires something more
than reasonable prospects of success
on appeal – court hearing
appeal decides whether special circumstances exist – no
special circumstances found
– appeal struck from the roll
with costs.
ORDER
On
appeal from:
Northern Cape Division of
the High Court, Kimberley (Pakati ADJP, Mamosebo J and Stanton AJ
sitting as court of appeal):
The appeal is
struck from the roll with costs.
JUDGMENT
Dlod
lo
JA (Ponnan, Mocumie and Makgoka JJA and Ledwaba AJA concurring):
[1]
In January 2006, the respondent, the Sol Plaatje Municipality (the
Municipality) issued
an ‘invitation for proposals (the
invitation) for the operation of the Kimberley & Ritchie Waste
Disposal Site (the site)’.
In response to the invitation, on 20
February 2006, the appellant, Millennium Waste Management (Pty) Ltd
(Millennium Waste), submitted
a written tender to the Municipality,
which was judged ‘responsive’.
[2]
On 25 July 2007, the Municipal Manager of the Municipality wrote to
Millennium Waste:
‘
RE:
INVITATION FOR PROPOSAL FOR THE OPERATION OF THE KIMBERLEY AND
RITCHIE WASTE DISPOSAL SITES
I
have a pleasure in advising you that your offer submitted in response
to the abovementioned tender has been accepted.
Council’s
representative for this work will be in contact with you shortly to
finalise logistical arrangements for the execution
of this contract.’
[3]
According to Millennium Waste, it took possession of the site on 1
October 2007, and
thereafter rendered services, for which it invoiced
the Municipality. When the Municipality declined to pay, it caused
summons
to be issued against the Municipality out of the Northern
Cape Division of the High Court, Kimberley. The claim failed before
Lever
AJ, who absolved the Municipality from the instance. The
learned judge ordered Millennium Waste to pay the costs of the
action.
An appeal to the full court, likewise failed. The full court
(per Pakati ADJP (Mamosebo J and Stanton AJ concurring)) dismissed
the appeal with costs. The further appeal by Millennium Waste is with
the special leave of this court. In this regard it is important
to
emphasise that
what
is required is some additional factor or criterion.
[1]
The fact that leave to appeal has been granted upon application to
the President of this court is not decisive of that enquiry.
It
remains for this court upon a consideration of the appeal to make
that determination.
[4]
The issue for determination is whether, as alleged by Millennium
Waste, the payments
were due to it under a contract, which had come
into being when it was advised by the Municipal Manager of the
Municipality
that its tender had been accepted. However, the mere
notification that its tender had been accepted, did not, without
more, result
in a contract. As the letter of 25 July 2007 made
plain ‘arrangements for the execution of [the] contract’
still
needed to be finalised.
[5]
That accords as well with what had been contemplated by the
invitation. The invitation
did not contemplate, without more, a
contract coming into being upon the mere determination by the
Municipality that a particular
tender was responsive and the
intimation by the Municipality that a particular tender had been
accepted. Clause 3.12 of the invitation
made that clear. It provided:
‘
3.12
Finalisation of the contract
·
Discussion
to reach agreement on all points and sign contract shall be held at
the following address:
Sol
Plaatje Municipality
First
floor, Old Mutual Building (Civic Centre Building)
Corner
Jan Smuts Boulevard & Lundhurst Street
Kimberley
·
Discussion
will include the content of the proposal, the proposed work plan,
budget staffing and any suggestions made by the firm
to improve the
Required Services. The council and the firm will then work out an
agreed final Terms of References and staffing.
The agreed work plan
and final Terms of Reference will then be incorporated into the
“Required/Description of Services”
and form part of the
contract.
·
Discussion
of finances will be confined to accommodate any agreed technical
modifications and their impact on the cost of services.
Unless there
are exceptional reasons, discussions will involve neither the
remuneration rates for staff (no breakdown of fees)
nor other
proposed unit rates. In no event will the final cost of services
exceed the original budget.
·
Consultants
should, in their proposals, provide assurances that the experts named
will be available. The Sol Plaatje Municipality
expects to conclude a
contract on the basis that the experts named on the Proposal are
available. Due to the urgent of the nature
of the work required the
Sol Plaatje Municipality will not consider sub situations during
contract finalisation.
If
it is established that key staff were offered in the Proposal without
confirming their availability, the firm may be disqualified.
·
The
discussions will conclude with a review of the draft form of the
contract. The Sol Plaatje Municipality and the firm should
then
initial the agreed contract. If the parties fail to reach an
agreement, the Sol Plaatje Municipality will invite the firm
that
received the second highest score to enter into discussion.’
[6]
Indeed, paragraph 5 of Millennium Waste’s particulars of claim
alleged:
‘
It
was an express term of the tender that discussion will take place
between the parties regarding the content of the proposal,
the
proposed work plan, budget staffing and any suggestions made by
plaintiff to improve the required services, discussions will
take
place regarding finances, discussions will conclude with a review of
the draft form of the contract and the contract will
be awarded
following the discussions with the successful tenderer.’
[7]
Clause 3.12 thus envisaged: further discussions; agreement on all
points; and the
signing in due course of a contract. It is common
cause that none of that happened. In the circumstances, as Millennium
Waste’s
claim rests on an unenforceable agreement to agree,
[2]
it had to fail.
[8]
Both before the full court and before us, counsel for Millennium
Waste sought to circumvent
the provisions of clause 3.12 by
suggesting that those provisions did not apply to Millennium Waste.
This, according to counsel,
was because
Millennium Waste
tendered only for the ‘Operations’ portion of the
contract. According to him clause 3.12 applied only
to the
‘Technical’ portion of the contract. There is no
merit in this submission. As the full court correctly
pointed out,
the tender document was one composite document and had to be read as
such. In any event, this submission is in conflict
with Millennium
Waste’s pleaded case as set out above.
[9]
It is necessary to add that although interpretation is a matter for
the court, not
for witnesses,
[3]
the parties generated a record in excess of 1500 pages, all of which
was irrelevant to the issue on which the case turned.
[10]
There is no merit
in the appeal to this court. As it was put in
Stu
Davidson and Sons (Pty) Ltd v Eastern Cape Motors (Pty) Ltd
[2018] ZASCA 26
paras 18 and 19:
‘
.
. . That two judges of this court gave special leave to appeal does
not mean that we are not required to consider whether we actually
should be entertaining the appeal at all:
National
Union of Mineworkers v Samancor Ltd
[2011]
ZASCA 74
para
15. The normal criterion of reasonable prospects of success
applies to both ‘special leave’ and ‘leave’
(
Westinghouse
at
561E-F). Given that there is no merit at all in the appeal, there are
no reasonable prospects of success, much less special circumstances.
Here,
the amount in issue is minimal. There is no legal question to be
determined. There is no factual dispute that requires
reconsideration.
There is no reason why an appellate court should
determine any matter arising from the first appeal further. Again, it
is trite
that where there has been no manifest denial of justice, no
important issue of law to be determined, and the matter is not of
special
significance to the parties, and certainly not of any
importance to the public generally, special leave should not be
granted.
(See
Westinghouse
above
and
National
Union of Metalworkers of South Africa & others v Fry’s
Metals (Pty) Ltd
[2005]
ZASCA 39).
’
[11]
The
appeal is accordingly struck from the roll with costs.
DV Dlodlo
Judge of
Appeal
APPEARANCES:
For
appellant:
A P Bruwer
Instructed
by:
Du Plessis De Heus & Van Wyk, Kimberley
Symington & De Kok Attorneys, Bloemfontein
For
respondent:
B
Knoetze SC (with him A G Van Tonder)
Instructed
by:
Van De Wall Incorporated, Kimberley
Phatshoane Henney Attorneys, Bloemfontein
[1]
Westinghouse Brake & Equipment (Pty) Ltd v
Bilger Engineering (Pty) Ltd
1986
(2) SA 555
(A) at 561E-F.
[2]
See inter alia
Premier,
Free State and Others v Firechem Free State (Pty) Ltd
2000
(4) SA 413
(SCA);
Southernport Developments (Pty) Ltd v
Transnet Ltd
2005
(2) SA 202
(SCA);
[2005]
2 All SA 16
(SCA);
Shepherd Real Estate Investments (Pty)
Ltd v Roux Le Roux Motors CC
[2019]
ZASCA 178
;
2020
(2) SA 419
(SCA) and
Sontsele v 140 Main Street Properties CC
and Another
[2020] ZASCA 85.
[3]
KPMG Chartered Accountants (SA) v Securefin Limited and Another
[2009] ZASCA 7
;
2009 (4) SA 399
(SCA);
[2009] 2 All SA 523
(SCA).