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[2022] ZAFSHC 186
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Zamori Engineering Services v MEC For Free State Department Of Public Works and Another (4860/2020) [2022] ZAFSHC 186 (10 August 2022)
IN THE HIGH COURT
OF SOUTH AFRICA,
FREE STATE
DIVISION, BLOEMFONTEIN
Case number: 4860/2020
Reportable: YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
In the matter between:
ZAMORI ENGINEERING
SERVICES:
Plaintiff
/ Respondent
and
MEC FOR FREE STATE
DEPARTMENT OF
PUBLIC
WORKS
First
Defendant / Applicant
TW SEOKE, HEAD OF
DEPARTMENT:
DEPARTMENT OF PUBLIC
WORKS
Second
Defendant / Applicant
HEARD
ON:
29
APRIL 2022
CORAM:
MATHEBULA,
J
DELIVERED
ON:
The
judgment was handed down electronically
by circulation to the
parties’ legal representatives by email and release to SAFLII
on 10 August 2022. The date and time
for hand-down is deemed to be 10
August 2022 at 11H00.
Introduction
[1]
The first and second defendants, excepted to the plaintiff’s
first claim for rectification of
the particulars of claim as pleaded
lacks averments necessary to support a cause of action. The plaintiff
takes the opposing view.
The defendants do not take issue in this
exception with the alternative claim. The parties will be referred to
in this judgment
as in the pleadings in an effort to avoid any real
or perceived confusion.
The plaintiff’s
particulars of claim
[2]
Broadly the allegations made in the particulars of claim are to the
following effect. On 26 March 2017
the first defendant published a
Request for Proposal under reference number DPWFS RFP 002/2017. A
voluminous copy of this document
is attached and incorporated by
reference marked “POC1”. The main purpose was to obtain
proposals for the implementation
of a shared energy savings agreement
with the first defendant. This was one of the many efforts by
government to implement cost
saving programmes in its buildings to
reduce energy consumption.
[3]
It is common cause that the plaintiff was named the successful
bidder. A letter of appointment dated
26 February 2018 signed by the
second defendant in his capacity as the accounting officer of the
relevant department was dispatched
to the plaintiff. On the strength
of this appointment letter, the plaintiff avers that a binding
agreement had come into existence.
[4]
The next step is that the plaintiff received a concept
Service Level Agreement on 23 July
2018 from the
defendants. On proper reading, according to the plaintiff, it was
found that it differs materially with the request
for proposals.
These are set out in detail in paragraph 5.4 of the particulars of
claim. The plaintiff forwarded a request to the
defendants to amend
it but to no avail. The bottom line is that ultimately the parties
did not sign any Service Level Agreement.
[5]
This then gave rise to a claim for rectification instituted by the
plaintiff. The parties part ways
on whether the agreement was entered
into or not. According to the plaintiff, the agreement with
defendants came into existence
on 26 February 2018. The differing
view of the defendants is that no agreement came into existence
because nothing was reduced
to writing and signed by the parties.
Arguments
[6]
Counsel for the defendants advanced argument that no cause of action
for rectification of a draft Service
Level Agreement has been
pleaded. She pointed out that a party raising rectification must
satisfy its requirements to make out
such a case. The requirements
that must be alleged and subsequently proved were fluently explained
by the court in
Propfokus
49 (Pty) Ltd and Others v Wenhandel 4 (Pty) Ltd
.
[1]
He argued that without a signed Service Level Agreement between the
parties, there is no agreement capable of being rectified.
This issue
was considered in
Command
Protection Services (Gauteng) (Pty) Ltd t/a Maxi Security v South
African Post Office Ltd
[2]
and the court held that in circumstances similar to the one on hand,
the contract never came into existence. Similarly, the issue
of
common mistake was not pleaded to sustain a claim based on
rectification. I agree with her.
[7]
In sharp response, counsel for the defendants argued that a contract
came into existence. He pointed
out that there was an offer and
acceptance subject to what was proposed in the request for proposal.
Counsel relied on the decision
of
Murray
& Roberts Construction Ltd v Finat Properties (Pty) Ltd
[3]
that given everything else, the contract pleaded was susceptible to
be interpreted that the parties intended to conclude a binding
contract. Referring to the judgment of the court in
Novartis
SA (Pty) Ltd v Maphil Trading (Pty) Ltd
,
[4]
he argued that all the facts showed that the intention of the parties
was to conclude a contract. Importantly, contracts must be
given
their ordinary commercial meaning and that this aspect will be
cleared by evidence at the appropriate time.
Legal position
[8]
Both counsel agreed in their heads of argument that the onus rests
with the defendants to persuade the
court that the particulars of
claim as they stand discloses no cause of action. Furthermore that
the court looks at the pleading
excepted to as it stands.
[5]
It is trite that the purpose of an exception is to dispose off the
case in whole or in part so as to avoid the unnecessary leading
of
evidence.
[6]
[9]
In terms of the Uniform Rules of Court 18(4), the pleader is required
to set out the material facts.
These are facts that, if pursued, will
disclose a cause of action. On the other hand, all the evidence
should not be pleaded. The
material facts must be pleaded with the
necessary particularity. The principle that underpins the requirement
of particularity
was clearly stated in
Trope
v South African Reserve Bank and Another and Two Other Cases
.
[7]
The plaintiff is entitled to be told exactly which case it needs to
meet.
[10] It can
be accepted that there is no exhaustive test of what will constitute
sufficient particularity. The requirement
is that the complete cause
of action must be pleaded clearly identifying the issues relied upon.
Obviously a pleading will become
excipiable if no admissible evidence
led on the pleadings can disclose a cause of action.
Discussion
[11] What
remains to be determined is whether the defendants have made out a
case for the exception to be upheld. In
simple terms, whether a
defect appears
ex facie
the pleadings the plaintiff seeks an
order for rectification of the Service Level Agreement. The clauses
which needs to be rectified
are tabulated in paragraph 5.4 of the
particulars of claim and its sub-paragraphs therein.
[12] Nowhere
in the pleadings does the plaintiff plead the requisites for the
claim of rectification. Perhaps, the reason
is that the plaintiff
could not do so because there is no written agreement that is in
existence between the parties and for a
party to succeed in the claim
for rectification, the requisites must be pleaded and proved. The
defendants must be clear as to
which case they are invited to meet.
On this occasion, it is unclear on which basis is the claim for
rectification made.
[13] I agree
with the counsel for the defendants that the plaintiff is seeking an
order that is tantamount to the court
negotiating the terms of the
agreement for the parties. The plaintiff has pleaded the mistake on
the part of the defendants. This
is not a mistake by both parties as
required by law. I disagree with counsel for the defendants that this
will be cured by evidence.
The essential elements must be pleaded
with particularity to enable the other party to plead. On this score
the particulars of
claim come short and are thus excipiable.
Order
[14] I make
the following order: -
14.1. The
exception is upheld and that the plaintiff’s particulars of
claim are struck out, and the plaintiff
is afforded leave to amend
its particulars of claim within fifteen (15) days from the date of
the order.
14.2. Failing
compliance with prayer 14.1
supra
or if the particulars of
claim remain excipiable pursuant thereto, that the defendant be
granted leave to apply, on the same papers,
fully amplified to the
extent necessary, for the dismissal of the plaintiff’s claim.
14.3. The
plaintiff is ordered to pay the costs of both defendants.
M.A. MATHEBULA, J
On
behalf of plaintiff: Adv.
P.A Venter
Instructed
by: Haasbroek
& Boezaart Incorporated
C/O
Willers Attorneys
BLOEMFONTEIN
On
behalf of defendants: Adv
S. Freeze
Instructed
by: State
Attorney
BLOEMFONTEIN
[1]
[2007] 3 All SA 18
(SCA) at 21-22.
[2]
2013 (2) SA 133 (SCA).
[3]
[1991] 1 All SA 382 (A).
[4]
2016 (1) SA 518 (SCA).
[5]
Minister of Safety and Security and Another v Hamilton
2001 (3) SA
50
(SCA).
[6]
Barclays National Bank Ltd v Thompson
1989 (1) SA 547
(A) at 553F-I.
[7]
1992 (3) SA 208
(T) at 210G-H.