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2023
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[2023] ZAFSHC 331
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Pinase and Associates CC v Department of Health Free State and Others (4112/2020) [2023] ZAFSHC 331 (18 August 2023)
IN THE HIGH COURT
OF SOUTH AFRICA,
FREE STATE
DIVISION, BLOEMFONTEIN
Case number:
4112/2020
REPORTABLE: YES/NO
OF
INTEREST TO OTHER JUDGES: YES/NO
CIRCULATE TO MAGISTRATES:
YES/NO
In
the matter between:
PINASE
AND ASSOCIATES CC
Applicant
and
DEPARTMENT
OF HEALTH FREE STATE
1
ST
Respondent
THE
MEMBER OF THE EXECUTIVE COUNCIL
2
ND
Respondent
HEALTH,
FREE STATE
BE
PART OF IT CONSULTING ENGINEERING
(PTY)
LTD
3
RD
Respondent
MAROGELA
CONSULTING ENGINEERS (PTY) LTD
4
TH
Respondent
JUDGMENT
BY:
REINDERS
J
HEARD
ON:
18 MAY 2023
DELIVERED ON:
This judgment was handed
down in open court on 18 AUGUST 2023 at 09h30 and thereafter
circulated to the parties’ representatives
by electronic mail
communication.
[1]
In October 2020 the applicant (as plaintiff) issued summons against
the first and second respondents
(as first and second defendants -
hereafter only “the defendants”). Reference to the
parties will be as in the main
action. After the defendants filed its
plea, the plaintiff belatedly applied for summary judgment. The
defendant opposed the condonation
application as well as the
application for summary judgment.
[2]
At the commencement of the court proceedings I condoned the late
filing of this application and
directed the parties to proceed with
the merits of the application. It is not the principles applicable to
an application for summary
judgment that are in dispute between the
parties, but rather the application thereof to the facts of this
matter. The factual matrix
creating the backdrop to the application
emanates from a tender awarded to the plaintiff by the defendants in
an amount of R 3 269 520.00
for the provision of
professional engineering services in respect of minor refurbishments
at the provincial Pelonomi Hospital in
Bloemfontein, and further
averred “affirmations” (the “extended agreement”)
concluded between the parties.
[3]
The plaintiff moves for summary judgment against the defendants in
the amount of R 73 047 462,60,
interest thereon and cost of
suit. The defendant resisted the application for summary judgment on
several grounds, including a
lack of authority by the deponent to
depose to the verifying affidavit, prescription, a counterclaim for
overpayment, non-conclusion
of the alleged extended scope of work, a
lack of authority to conclude the latter and non-compliance with
statutorily mandated
procurement processes.
[4]
The deponent on behalf of the plaintiff in the founding affidavit to
the application for summary
judgment avers that the defendants have
failed to provide a bona fide defence to the plaintiff’s claim.
In heads of argument
filed on behalf of plaintiff and in oral
submission it was submitted that plaintiff’s claim is based “on
a liquid document
or for a liquidated amount”. I am not
convinced that such a submission is correct. The summons contains
allegations to the
effect that plaintiff cancelled its agreement with
the defendants and claims “damages”. Rule
32(1) allows
a party to apply to court for summary judgment only
based on a liquid document, for a liquidated amount in money, for
delivery
of specified moveable property or for ejectment. The present
claim is not based on a liquid document (nor is a liquid document
annexed as prescribed by Rule 32(2)(c)), nor is it a claim for
delivery of moveable property or ejectment. The plaintiff’s
claim is for damages which do not constitute a liquidated amount in
money. Summary judgment may only be applied for in respect
of a claim
falling within the four categories mentioned in Rule 32(1).
[1]
Summary judgment cannot be applied for in respect of an unliquidated
amount.
.
[5]
But assuming that I am wrong in my views that the claim is not for a
liquidated amount, a succinct
summary of the test to be applied by a
court in deciding whether to grant summary judgment or not, was set
out recently by the
Supreme Court of Appeal in the unreported
unanimous judgment of
Cohen
NO & Others v D[…].
[2]
Nicholls JA held in para [31] as follows:
“
The
high court failed to consider the test to be applied in deciding
whether to grant summary judgment. This was, and remains, whether
the
facts put up by the defendants raise a triable issue and a
sustainable defence in the law, deserving of their day in court.
[3]
The defendants must fully disclose the nature and grounds of their
defence and the material facts on which it is founded. All a
defendant has to do is set out facts which if proven at trial will
constitute a good defence to the claim.
[4]
”
(numbering of footnotes adjusted)
[6]
With reference to the difference between the amended rule 32 or rule
32 prior to the
2019 amendment, the Supreme Court of Appeal held that
the position remains that a defendant has to disclose a bona fide
defence
to successfully oppose an application for summary
judgement.
[5]
The
defence must be genuine, as opposed to ‘a sham’
defence.
[6]
It
was held that the prospects of success are irrelevant, and as long as
the defence is legally cognisable in the sense that it
amounts to a
valid defence if proven at trial, then an application for summary
judgment must fail.
[7]
[7]
The defendants’ main gripe seems, as I understood it, to be the
judgment amount which is
an increase from R3.2 million for minor
refurbishments to the hospital to more than R86 million for alleged
major refurbishments.
The defendants aver that the alleged R86
million contract was not preceded by any process in compliance with
the precepts of s217
of the Constitution of South Africa
[8]
or, for that matter, with any of the related legislative procurement
requirements. The defendants accuse the plaintiff of seeking
an order
from court which ratifies its circumvention of a competitive bidding
process in terms of s217 of the Constitution.
[8]
If I apply the principles as set out in
Cohen
supra
,
I have to conclude that defendants have set up allegations which
constitute triable issues and which can only finally be adjudicated
upon by a court having had the advantage of evidence placed before
it. Having so concluded I cannot grant summary judgment.
[9]
A cost order in respect of the condonation application still has to
be made. It was the plaintiff
who moved for the indulgence and who
should bear the costs thereof as will be reflected in the order
hereunder. Notwithstanding
my reservations in respect of whether the
plaintiff’s claim falls within the ambit of the provisions of
Rule 32(1), I intend
to make the usual cost order that I deem
appropriate in applications like these.
[10] I
make the following order:
10.1
The plaintiff is ordered to pay the costs of the application for
condonation.
10.2
The application for summary judgment is refused.
10.3
Leave is granted to the defendants to defend the action.
10.4
Costs to be in the cause.
C REINDERS, J
On
behalf of the Plaintiff:
Adv
T. Masuku SC
Adv
M. Simelane
Adv
N. Nyathi
Instructed
by:
A.T.
Shabangu Inc Attorneys
c/o
Mohlokonya Attorneys
BLOEMFONTEIN
On
behalf of 1
st
and 2
nd
Defendants:
Adv
N. Cassim SC
Adv
I. Macakati
Instructed
by:
C.E.
Cawood
State
Attorney
BLOEMFONTEIN
[1]
Nichas
and Son (Pty) Ltd v Papenfus
1970 (2) SA 316
(O); s
.
1985(1)
SA 540 (C).
[2]
(Case
no 368/2022)
[2023] ZASCA 56
(2023).
[3]
Joob
Joob Investments (Pty) Ltd v Stocks Mavundla Joint Venture
Zek
Joint Venture
[2009]
ZASCA 23
;
2009 (5) SA 1
(SCA);
[2009] 3 All SA 407
(SCA) para 32.
[4]
Maharaj
v Barclays National Bank
Ltd
1976 (1) SA 418
(A) at 418H-419A.
[5]
At
para 28.
[6]
At
para 28.
[7]
At
para 29.
[8]
S217
reads:
217
Procurement
(1)
When
an organ of state in the national, provincial or local sphere of
government, or any other institution identified in national
legislation, contracts for goods or services, it must do so in
accordance with a system which is fair, equitable, transparent,
competitive and cost-effective.
(2)
Subsection (1) does not prevent the organs of state or institutions
referred to in that subsection from implementing a procurement
policy providing for-
(a)
categories
of preference in the allocation of contracts; and
(b)
the
protection or advancement of persons, or categories of persons,
disadvantaged by unfair discrimination.
(3)
National legislation must prescribe a framework within which the
policy referred to in subsection (2) must be implemented.
[Sub-s.
(3) substituted by s. 6 of the
Constitution
Seventh Amendment Act of 2001
(wef
26 April 2002).]