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[2023] ZAFSHC 470
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Sher Con Surfacing (Pty) Ltd v Mangaung Metropolitan Municipality and Another (3680/2023) [2023] ZAFSHC 470 (1 December 2023)
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Certain
personal/private details of parties or witnesses have been redacted
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IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
1.
REPORTABLE: YES / NO
2.
OF INTEREST TO OTHER JUDGES: YES / NO
3.
REVISED: YES / NO
Case
number: 3680/2023
In
the matter between:
SHER
CON SURFACING (PTY) LTD
APPLICANT
(Registration
Number: 20[....]07)
And
MANGAUNG
METROPOLITAN MUNICIPALITY
1ST
RESPONDENT
NOLWANDLE
ME TRADING ENTERPRISES 2ND
RESPONDENT
(Registration
20[....]23)
HEARD
ON
:
14 SEPTEMBER
2023
JUDGMENT
BY
:
VELE,AJ
DELIVERED
ON
:
1 DECEMBER 2023
[1]
Sher Con Surfacing (Pty) LTD ("the Applicant"), approached
this court on the urgent basis for the
granting of the Rule nisi
against Mangaung Metropolitan Municipality ("First Respondent")
and Nolwandle ME Trading Enterprises
CC ("Second Respondent"),
on a notice of motion that was divided into Part A and Part B for the
granting of the following
orders against the First and Second
Respondents:
[2]
In Part A, it sought the following:
2.1
That the non - adherence to this Court's rules relating to form, time
periods and service be condoned, and the application
be heard as an
urgent application in terms of Rule 6 (12) of the Uniform Rules of
Court;
2.2
That the non - compliance with the provisions of section 35 of the
General Law Amendment Act 62 of 1955 be condoned.
[3]
That a rule nisi be issued; calling upon the Respondents to show
cause, if any, on 17 August 2023 at 9h30
as to why the following
order should not be made final:
3.1
The First Respondent be interdicted from making payment in the amount
of R 585 149 - 27 (Five Hundred and Eighty
- Five Thousand One
hundred and Forty Nine Rand and Twenty Seven Cents), or any part
thereof to the Second Respondent pending the
finalisation of the
relief sought in Part B of the notice of motion;
3.2
The First Respondent ordered to preserve and keep the amount of R585
149- 27 or any lesser amount maximum to limit
of R585 149 - 27, held
by the First Respondent pending the finalization of Part B of the
Notice of motion under the same case number.
[4]
The orders in paragraphs 3.1 and 3.2 supra serve as an interim
interdict with immediate effect pending the
finalisation of the
application.
[5]
That the Second Respondent be ordered to pay the costs of this
application on an attorney client scale.
[6]
First Respondent be ordered to pay the costs of the application, only
if application is opposed by the First
Respondent.
[7]
Further and/or alternative relief.
[8]
PART B; the Applicant sought an order in the following terms:
8.1
The Second Respondent pay the Applicant an amount of R585 149. 27
(Five Hundred and Eighty - Five Thousand One hundred
and Forty Nine
Rand and Twenty- Seven Cents) and tempora morae interest until date
of full and final settlement.
8.2
The second Respondent being ordered to the Applicant, as set out
above, the First Respondent be authorised and ordered
to pay the
amount of R585 149. 27(Five Hundred and Eighty - Five Thousand One
hundred and Forty Nine Rand and Twenty Seven Cents),
or any part
thereof, directly to the Applicant.
8.3
Second Respondent pay the costs of the application on an attorney and
client scale.
8.4
First Respondent to be ordered to pay the costs of the application,
if First Respondent it opposes.
8.5
Further and or alternative relief.
[9]
The background of the matter is the rule nisi was granted against the
First and Second Respondent on 18th
of July 2023, and with the return
date on 17 August 2023. On the return date, the rule nisi under Part
A was further extended to
14 September 2023, as the Second Respondent
filed opposing papers. Second Respondent opposed Part B as well,
which postponed to
the same date. Applicant was ordered to file its
replying affidavit on or before 31 August 2023. The Second
Respondent, filed a
counter - application to be simultaneously heard
with Part B.
[10]
Mangaung Metropolitan Municipality (hereinafter called the "First
Respondent"), entered into an agreement for
the construction of
tarring roads and surfacing of certain areas within its metropolitan
area with Nolwandle Me Trading Enterprises
CC (hereinafter called
"the Second Respondent"), following an open tendering
process. The Second Respondent then sub
- contracted Sher Con
Surfacing (PTY) LTD (hereinafter referred to as "the
Applicant"). There is no contract between
the applicant and the
First Respondent. Applicant is seeking to interdict the First
Respondent from effecting the final payment
to the Second Respondent
in respect of certain projects completed within the Municipality, as
an amount of R585 149 - 27 was due
to it, for services rendered. The
application was separated into Part "A" and Part "B".
In Part A, the applicant
sought to interdict ,the First Respondent
from effecting payment to the Second Respondent, pending the
finalization of the application
in Part 8.
[11]
Part A was brought on an urgent basis and a Rule nisi was granted on
18 August 2023 by Van Rhyn, J with the return date
being 17 August
2023, that was further extended to 14 September 2023 by Chesiwe, J;
when both Parts A and B were to be heard along
- side the Second
Respondent's counter application. Part A was brought on an ex parte
basis, as the Respondents were not served
prior to the granting of
the Rule nisi. Though the order was obtained in an urgent basis it
was only served on the second Respondent
on the 1 August 2023, by way
of e - mail. The Second Respondent also filed the counter-
application to be heard simultaneously
with Applicant's application.
Second respondent's application prayed for the following orders:
11.1 That
the applicant's application be stayed pending the finalization of the
second respondent's counter - application;
11.2 An
order be made for the parties to subject themselves to a measurement
of the area covered by the applicant;
11.3 After
the measurement the applicant be abated taking into consideration all
payments made by the Second Respondent;
11.4 That
after the abatement, the party found to be liable to the other, be
ordered to make payment to the other
of such amount of liability;
11.5 Further
or alternative relief;
11.6 Costs
[12]
The First Respondent did not file any opposing papers and elected to
abide by the ruling of the court. The Second respondent
argued that
there was no basis for Part B was not supposed to have been brought
on the urgent basis, as the applicant was aware
that the amount was
disputed and still to be confirmed as the Second Respondent has
raised a number of issues that the Applicant
was to rectify. The
issue of the measurement of the surface covered and the supply of a
liquid substance known as "tack",
used to apply asphalt to
the surface is disputed, as incorrectly invoiced. The terms of the
agreement, provide for the Applicant
to merely apply the tack and
asphalt on the surface, not to supply them. The Applicant has
invoiced for tack, without producing
any proof of purchase.
[13]
Second Respondent disputed the applicant's invoices, and the
Applicant was aware of this disputed fact. There are some
discrepancies surrounding invoice 49, which is the back - bone of the
application. Invoice 49 dated 22 June 2022, which reflects
an amount
of R355 250 - 89, annexed in support of the simple summons issued on
12 August 2022 out of the Bloemfontein Regional
Court, marked "A".
The Applicant is relying on the acknowledgement of debt concluded on
15 September 2021 for amount
of R435 149. 27 and a further amount of
R100 000, with no supporting document, to compute the sum of R585
149. 27, claimed in Part
B of the current application. Second
Respondent referred to "MAR 2", tax invoice no 149 dated 3
August 2021, reflect
an amount of R369 307. 26 as the outstanding
balance. This is just over a month prior to Banda signing the
acknowledgment of debt,
with no further invoices generated.
[14]
Applicant invoiced for supply of tack in Certificate 4 dated 2 August
2021 attached in support to tax invoice 149 "MAR
2". Second
Responded disputes this, as it is in contrast to the parties'
agreement; that the Second Respondent was to supply
tack. Applicant
though aware of this dispute, failed to produce proof of supplying
tack. Second Respondent attached proof of payment
to Tosas, for the
supply of tack in February, March, April, May and June 2021. "MAR
5.1" dated 2 February 2021 is for
R36 374. 50, "MAR 5.2"
dated 11 February 2021 is for R47 000, "MAR 5.3" dated 18
March 2021 is for R90 130.
33, issued to DNA Land Use Consultant, an
associate of the Second Respondent, "MAR 5.4" dated 4 May
2021 is for R12 000,
"MAR 5.5" dated 7 May 2021 is for R59
938 and "MAR 5.6" dated 10 June 2021 for R40 000.
[15]
Advocate Buys, on behalf of the applicant, submitted that rule nisi
should be confirmed and an order for payment of R585
149. 27, as set
out in Part B. He pointed out that, the Applicant was relying on the
acknowledgment of debt signed on 15 September
2021. This submission
is incorrect, as the acknowledgment is for the sum of R435 149. 27;
not amount claimed. The Applicant alleging,
that it is entitled to an
amount of R585 149. 27. In that regard, it bears the onus to prove.
[16]
Mere perusal of the papers reflects that there is a dispute of fact.
The Second Respondent from the onset has raised
number of points in
limine:
16.1
The Second Respondent took a point that the Notice of Motion was
defective, as was issued on 17 July 2023 as per
date stamp, pre -
dating the supporting affidavits of Mr Isaacs and Ms York; deposed of
on 18 of July 2023, a day after. The affidavit
of one, Ralegae Bonolo
Mayeng, the Registrar, who issued the Notice of Motion, addressing
the stamp discrepancy was filed and cleared
this aspect, which was
not pursued further.
16.2
A further point taken was the one of lis alibi pendens before the
Bloemfontein Regional Court under case number
(771/2022), wherein
Applicant has issued a simple summons and never took a step beyond
the intention to defend.
16.3
The Applicant relied on the word of one Mr Andries Radebe, an
employee of Much Asphalt, one of the second Respondent's
suppliers,
heard on 17 July 2023. It then approached the court on the urgent
basis, for an order interdicting the First Respondent
from making the
final payment under current contract to the Second Respond on the
evening of 18 July 2023, the very date that Mr
Isaacs and Ms York's
affidavits were deposed. Mr Radebe did not depose of a confirmatory
affidavit, though his word was the reason
for urgency of Part A.
Applicant did not advance any reason for not filing Mr Radebe's
confirmatory why his confirmatory affidavit.
16.4
The amount as reflected in invoice no 49 dated 22 June 2022 is for
the total sum of R355 250 - 89, whilst Applicant
is claiming the
total sum of R585 149- 27.
[17]
In opposition to Part 8, the Second Respondent is raising the fact
that, there is lis alibi pendens at the Bloemfontein
Regional Court
under case number 771/2022 for payment of the sum of R355 250. 89 for
goods sold and delivered during 2020/2021.
The Second defendant filed
the intention to defendant, but the applicant failed to file its
declaration within the prescribed period
and failed to pursue the
matter further. The Second Respondent argued that its point in limine
regarding the lis pendens at the
Regional court was a good point;
that Mr Isaacs did not really bother to deal with satisfactorily,
other than to say the defendant
was different from the current Second
Respondent. Mr Isaacs was being disingenuous, as a mere perusal of
the supporting documents
relied on in both matters are the same, it
is clear that his accessions are not supported by any document. The
Applicant want to
benefit from its wrong citation of the Second
Respondent in the summons. By mere perusal of the acknowledgment of
debt; Annexure
"FA1", Statement 049 (annexure "A"
to the simple summons) and Invoice 149 (annexure "MAR 2")
the
following is glaring. Same VAT No 4380289225, which is the VAT
number of the Second Respondent, is display on both "FA1"
and "Annexure A" to the simple summons issued in the
Bloemfontein Regional court, under the above case number. Invoice
"149 MAR 2" reflects an amount of R369 30. 26 as the total
outstanding balance and no further invoices produced.
[18]
In addressing Part B, the Second Respondent has raised a dispute of
fact, that in my view was sufficiently established
and raised the
matter that was pending before the Bloemfontein Regional Court, as an
aspect that the Applicant failed to deal with
in a sufficient manner.
It is clear that though the Applicant's cause of action was set out
in the summons as one for goods sold
and delivered, perusal of the
invoices attached in support thereof point in one direction, that of
services rendered; in that the
invoices refer to the overlaying of
asphalt not the supply thereof. The very same invoices are the basis
of the Applicant's application
for interdicting the First Respondent
from making payment pending the finalisation of Part B.
[19]
The Applicant is relying on the acknowledgment of debt signed by Mr
Banda, who was the newly appointed General Manager,
at the time of
signing and not fully acquinted with the dealings of the Applicant
and the Second Respondent and outstanding issues
at the time. The
Applicant was opportunistic in this respect, as it was aware that
Second Respondent has requested the recalculation
of the amounts. Mr
Banda's diligent work unearthed a number of discrepancies in the
Applicant's invoices. He discovered that they
were charging for tack,
despite the fact that the Second Respondent was supplying it and
invoices of purchase thereof provided
annexures "MAR 5.1 to
5.6". The Applicant was fully aware of the fact the measurements
of the resurfaced areas was disputed.
The measurement of the areas
remained unresolved due to the unavailability of the Applicant's
employees, as the appointments were
not honoured.
[20]
The Applicant did not ventilate what made it so urgent, for Part B to
be on an ex parte basis, as it was aware of the
pending action in the
Regional Court, that it has not taken beyond issue of summons;
despite being aware of the Second Respondent's
intention to defend
it. Applicant failed to file a declaration resulting in the stalemate
position. The action proceedings were
appropriate in the
circumstances and the matter settled by hearing of oral evidence. The
Applicant was not honest with the court
when bringing Part B of the
current application, as it was fully aware of the disputed facts;
unable to be settled by way of affidavits,
but required some oral
evidence. In Buffalo Freight Systems (Pty) Ltd v. Crestleigh Trading
(Pty) Ltd
[1]
the court warned
against deciding application proceeding, when there are disputed
facts solely on the affidavits. The legal position
is that, where a
party should have foreseen, that a serious dispute of fact, that
cannot be resolved by way of affidavits, but
proceed on the
application, runs a risk of the dismissal of the application
[2]
.
(21]
The principle as set out in the Plascon - Evans v Van Riebeeck
Paints
[3]
, will not be
applicable; as Part B of the application cannot be, refer for oral
evidence, as there is, a pending matter based on
the same facts that
has not been disposed. The Applicant's claim cahnot be finalised by
way of affidavits, if one takes into account
the nature of the
dispute, without hearing of the oral evidence. In Transnet Ltd t/a
Metrorail v Rail Commuters Action Group
[4]
,
the court reiterated the fact that, where there is a dispute of fact
on the papers and the applicant fails to make out a case
for the
relief sought, the court ought to dismiss the application.
[22]
Based on fact that there is action that is a pending action and the
dispute around amount due to the Applicant, which
it should have
foreseen, the Applicant's application under Part B, cannot succeed
and dismissed.
[23]
I now tum to the Second Respondent's counter - application. It is
clear that in as far this is concerned, there is very
little in
dispute. It is common cause between the Applicant and the Second
Respondent; that the Applicant did render services;
laying asphalt in
certain roads and/or premises within the First Respondent's
Municipality, at the instance of the Second Respondent,
in line with
tender awarded by the First Respondent.
[24]
What is in dispute; is the number of square meters that were covered
and, or supply of the any materials by the Applicant.
The Applicant
is aware of the dispute surrounding the supply of "tack".
The Second Respondent provided invoices as proof
of purchase of tack
in bulk. The Applicant in its "Certificate final 4",
annexure "MAR 4" dated End of August
2021, has a line item
called: "Tack coat of 30% stable - grade emulsion"
amounting to R122 755. 68.
[25]
The Second Respondent, is merely seeking an order to allow the
parties an opportunity to revisit the Applicant's invoices
and verify
if there is any amount due by it, or if there was an over payment, so
that Second Respondent can be reimbursed of the
difference. The
orders sought are in the interest of justice, and granted as prayed.
[26]
WHEREFORE, THE FOLLOWING ORDER IS MADE:-
1.
Part A of the application.
1.1
The First Respondent is interdicted from making payment of the amount
of R355 250. 89, or any part thereof;"
to the Second Respondent
pending the finalisation of the Second Applicant's relief sought in
the counter - application under case
number 3680/2023.
1.2
The First Respondent is to preserve and keep safe the amount referred
to in order 1.1 supra, or any lesser amount
thereof to the maximum of
R355 250. 89, held by the First Respondent pending the finalisation
of the Second Applicant's relief
sought in the counter - application
under case number 3680/2023.
2.
Part B of the application.
2.1
Applicant's relief under Part B of the Notice of Motion; is
dismissed.
3.
Second Applicant's counter - application.
3.1
The parties are ordered to subject themselves to measurements of the
area covered by the Applicant;
3.2
After such measurements, the statements of the Applicant be abated
taking into consideration all payments made by
the 2nd Respondent;
3.3
After such abatement, the party found liable to the other, is ordered
to make payment to the other of such amount
of liability;
3.4
Applicant to pay the Second Respondent's Costs on a party and party
scale.
S.O
VELE, AJ
APPEARANCES:
Counsel
on behalf of the Applicant: Adv.
J J Buys
Instructed
by: York
Attorneys
BLOEMFONTEIN
Counsel
on behalf of the Second Respondent: Adv.
J J Hayes
Instructed
by:
Rodrigues
Blignaut Attorneys
Honeydew
Honeydew
C/o
Symington De Kok
BLOEMFONTEIN
[1]
2011(1) SA 8 (SCA) at 14D- F
[2]
Room Hire Co (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd 1949 (3) SA
1155 (T)
[3]
[1984] ZASCA 51
;
1984 (3) SA 623
(A) at 634H - 635C
[4]
2003 (6) SA 349
(A) at 368C - D and G - H