About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Eastern Cape High Court, Bhisho
SAFLII
>>
Databases
>>
South Africa: Eastern Cape High Court, Bhisho
>>
2022
>>
[2022] ZAECBHC 45
|
|
Elegant Line Trading 257 CC v Member of the Executive Council for Transport - Eastern Cape (104/2022) [2022] ZAECBHC 45 (14 December 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE DIVISION, BHISHO
CASE
NO: 104/2022
In
the matter between:
ELEGANT
LINE TRADING 257 CC
(Registration
No.
2005/037911/23)
Applicant
and
MEMBER
OF THE EXECUTIVE COUNCIL
FOR
TRANSPORT – EASTERN
CAPE
Respondent
JUDGMENT
Rugunanan
J
[1]
This is a decidedly brief judgment that
illustrates the enduring purpose of affidavits in motion proceedings.
[2]
In
motion proceedings the affidavits constitute both the pleadings and
the evidence and the issues and averments in support of the
parties’
cases should appear clearly therefrom
[1]
.
It is trite that an applicant must make out its case in the founding
affidavit which must contain sufficient facts in itself upon
which a
court may find in the applicant’s favour.
[3]
Quoting
where relevant, in
Director
of Hospital Services v Mistry
[2]
the court put the position as follows:
‘
When,
as in this case, the proceedings are launched by way of notice of
motion, it is to the founding affidavit which a Judge
will look
to determine what the complaint is … and as been said in
many other cases: “… an applicant must
stand or fall by
his petition and the facts alleged therein and that, although
sometimes it is permissible to supplement the allegations
contained
in the petition, still the main foundation of the application is the
allegation of facts stated therein, because those
are the facts which
the respondent is called upon either to affirm or deny”.’
[4]
Since
it is clear that the applicant stands or falls by its petition and
the facts alleged therein, ‘it is not permissible
to make out
new grounds for the application in the replying affidavit’
[3]
.
[5]
The
rule against allowing new matter or new grounds in reply was held in
Bayat
and Others v Hansa and Another
[4]
to be capable of being departed from only in exceptional
circumstances. The principle nonetheless remains that a case must be
made out in the founding papers. Its rationale promotes legal
certainty. This is evident from the contemporary approach adopted
by
the Constitutional Court in
South
African Transport and Allied Workers Union and another v Garvas and
others
[5]
where it held as follows:
‘
Holding
parties to pleadings is not pedantry. It is an integral part of the
principle of legal certainty which is an element of
the rule of law,
one of the values on which our Constitution is founded. Every party
contemplating a constitutional challenge should
know the requirements
it needs to satisfy and every other party likely to be affected by
the relief sought must know precisely
the case it is expected to
meet.’
[6]
It occurs frequently in practice that
parties may attach documentary annexures to their affidavits.
[7]
Where this occurs it is not open to a party
to request the court to have regard thereto. What is incumbent is the
identification
of portions thereof on which reliance is placed as an
indication of the case which is sought to be made out on the strength
of
the document concerned.
[8]
The document serves as proof of the source
of the information.
[9]
Regard
being had to the function of affidavits, it cannot be expected of a
party nor of a court to trawl through a series of annexures
reduced
to a mass of print and to speculate on the relevance of their
contents
[6]
or to establish if
there is material that adds substance to loose averments in an
affidavit.
[10]
The relief claimed against the respondent
arises from a scholar transport service level agreement (‘the
agreement’)
concluded with the Eastern Cape Department of
Transport (‘the department’) in respect of the award to
the applicant
of a bid for the provision of transport services in the
Chris Hani West District, Queenstown (now Komani), for the period 11
January
2017 to 10 December 2019.
[11]
It is common cause:
(i)
that the applicant was appointed to provide transport for children
schooling at Mapasakraal Farm
School (‘Mapasakraal’) from
pickup points at Cheviot, Thornlands, Prospect, and Peace Farm (I
pause to state that the
pickup points are identified by the
respondent – no mention thereof by the applicant in the
founding affidavit); and
(ii)
that in January 2018, the Department of Education closed Mapasakraal
and enrolled the attending learners
at Nonesi Primary School in
Queenstown.
[12]
The applicant essentially seeks orders:
(i)
for payment of an amount of R1 217 752.24
for the extra distance travelled from the ‘extended pickup
points’
post closure of Mapasakraal and the relocation of
learners to attend in Queenstown; and
(ii)
that it be paid the amount of R614 498.21
representing short-payments for the period July 2019 to December
2019.
[13]
The applicant is a registered close
corporation. The deponent to its founding affidavit is its sole
member.
[14]
The entire evidentiary basis on which the
application is brought resides in the founding affidavit. It is
alleged by the deponent
that the applicant has complied with its
obligations under the agreement.
[15]
Of relevance to the applicant’s
specific claims are the following averments:
‘
11.
During the month of January 2018, [Mapasakraal] was closed and its
learners were moved to Nonesi Primary School.
The effect of this
change was a phenomenal increase on the kilometres travelled from the
pickup points to the school. A letter
of confirmation by the District
Director of [the] Eastern Cape Department of Education is attached as
KM4.
12.
Despite the increased travelling distance, the Respondent did not
adjust the contracted kilometres in respect
of the scheduled trips.
As a result of this non-adjustment of contracted kilometres, the
applicant was under paid in the amount
of R1 217 752.24.
13.
During the month of July 2019 up to December 2019 the Applicant was
short paid, as a result thereof the applicant
is short paid by an
amount of R614 498.21 which is due and payable by the
Respondent.
14. I
have on numerous occasions approached relevant officials of [the
department] in want of having this inaccurate
payment of Applicant’s
claims rectified. However, my pleas and cajoling have yielded to
nought. I am therefore left with
no option but to approach this court
for relief …’
[16]
Leaving aside for a moment the respondent’s
answer to these averments, it is not apparent from the content of
these extracts
per se
how
the applicant has computed the respective amounts, nor from the
complement of annexures mentioned and attached to the founding
affidavit – which in any event are by themselves deficient for
want of inclusion of the additional documentation specifically
mentioned in the annexures. The assertion of a ‘phenomenal
increase’ in kilometres travelled is not borne by a meaningful
formula or explanation from which a readily quantifiable arithmetical
deduction may be made to arrive at the respective amounts
claimed,
much less does the asserted compliance with obligations under the
agreement clarify the quantification conundrum. With
these
limitations in the founding affidavit, nothing further needs to be
said other than to reiterate the legal prescripts set
out at the
commencement of this judgment.
[17]
In answer, the respondent denies that the
amount of R1 217 752.24 is owed to the applicant for the
reason that the applicant
has failed to include supporting
documentation in its founding papers clearly indicating how that
amount is calculated. In respect
of the claim for R614 498.21
the respondent disputes that the applicant rendered transportation
services for the period August
2019 to December 2019 and further
disputes that the applicant submitted invoices for that period. In
the instance of either claim,
there is accordingly weighty
justification in the respondent’s contention that the
applicant’s appointment did not
contain a contract amount as
the applicant was to be paid according to kilometres travelled. This
underscores the necessity for
the applicant to have arithmetically
factored the distance component in whatever formula it applied to
arrive at the amounts claimed
(an exercise which it has not
undertaken).
[18]
Significantly, it is stated in answer that
the Department of Transport was only advised by the Department of
Education about the
closure of Mapasakraal on or about 20 June 2018,
and in this regard the applicant breached its contractual obligation
to communicate
and seek approval from the transport department for
any changes of pickup points, routes, schools and number of learners
involved.
[19]
The respondent however contends, on the
basis of trip data information reflected in spreadsheets (annexures
‘MCM3’ and
‘MCM4’) that the applicant ‘may
be owed some kilometres to the amount of R74 366.92’. The
spreadsheets
comprise of numerical data in a mass of fine print.
Taken together they contain no less than 130 horizontal rows and 28
vertical
columns. The information was collated by an official who
deposed to a confirmatory affidavit from which it appears that the
amount
was arrived at on the basis of the applicant’s
‘non-submission of invoices’, albeit that the portions in
the
spreadsheets that support the amount which it is contended may be
owed, have not been identified, nor has the applicable period.
[20]
In reply, the applicant has attached
annexures ‘KM9’, ‘KM10’, and ‘KM11’,
with the qualification
by the deponent that they are
‘self-explanatory’. These are respectively a legal
opinion for the state attorney (acting
on behalf of the department),
and a series of two addenda thereto. This is new matter. The
documentation recommends payment to
the applicant of the amounts of
R1 406 568.67 and R614 498.21.
[21]
Quite
apart from new matter in reply, it constitutes hearsay evidence
without providing confirmatory affidavits from their source.
The
obvious needs to be stated. Neither this court nor the respondent can
be expected to speculate on the possible relevance of
the material
prepared for the state attorney – the contents of which, far
from constituting factual findings, is untested
opinion evidence.
[7]
The respondent, of course, does not enjoy the right to answer, though
I am of the view that to do so would be wasteful in circumstances
where it is unnecessary for purposes of determining whether the
relief sought is competent.
[8]
[22]
As for the respondent’s assertion of
a breach of the service level agreement and denial that the applicant
rendered transportation
services for the period August 2019 to
December 2019, together with the further denial that the applicant
submitted invoices for
that period, this is contradicted in reply by
the applicant attaching proof of receipt of the invoices for the
specified period
(the annexures are marked ‘Doc F’). The
proof consists of a series of notes in typescript acknowledging
receipt of
invoices. The notes do not mention whether what was
received were invoices specifically for transportation services
rendered. Although
each note bears the departmental stamp, the
designation of the signatory thereto is unknown.
[23]
In my view the annexures serve no purpose
other than an acknowledgment of a nondescript nature – they do
not establish proof
as to how the claim for the period in question
has been calculated.
[24]
To
the extent that disputes of fact might exist regarding contractual
performance and submission of invoices, the test enunciated
in
Plascon
Evans-Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[9]
must
therefore be applied and final relief can only be granted if those
facts averred by the applicant which have been admitted
by the
respondent, together with the facts alleged by the respondent,
justify such an order.
[25]
In the present matter
they clearly do not.
[26]
From what has been dealt with in this
judgment, it is clear that the applicant’s founding affidavit
is wholly unsustainable.
The scathing and ignominious tone of the
replying affidavit is gratuitous and may appropriately be attributed
to the founding affidavit
which may deservedly be censured as an
inadequately conceptualised effort.
[27]
A
concerning aspect of the matter is that both parties have attached
material without endeavouring to identify what exactly is relevant
in
support of their respective cases. It is not the task of this court
to go behind their affidavits and undertake a forensic analysis.
Courts are a public resource under severe pressure.
[10]
It does not bode well for litigants to introduce matter that
unnecessarily labours the issues for determination. This sentiment
influences my discretion on costs.
[28]
In the circumstances the following order
issues:
1.
The application is dismissed.
2.
Each party shall pay their own costs.
M. S. RUGUNANAN
JUDGE OF THE HIGH
COURT
APPEARANCES:
For
the Applicant:
B. Metu
Instructed
by
G.
N. Jojwana Attorneys Inc.
c/o
Khaya Dywanisi Attorneys Inc.
Qonce
Tel:
043-6436 109 or 084 2197 049
Email:
khaya@kkdattorneys.co.za
babalo.metu@gmail.com
(Ref:
K Dywanisi)
For
the Respondent:
L. X. Mpiti
Instructed
by
The
Office of the State Attorney
East
London
(Ref:
164/22-P15 Mrs. Gabula)
Tel:
082 948 1856 / 083 466 4673
Email:
AGabula@justice.gov.za
nolithagabula63@gmail.com
mpitilx@gmail.com
Date
heard:
15 September 2022.
Date
delivered:
14 December 2022.
This
judgment was handed down electronically with the consent of and by
circulation to the abovementioned legal representatives
by email. The
date and time for hand-down is deemed to be 10h00 on 14 December
2022.
[1]
Minister
of Land Affairs and Agriculture v D & F Wevell Trust
2008 (2) SA 184
(SCA) at 200D.
[2]
1979 (1) SA 626
(A) at 635H-636B.
[3]
SA
Railways Recreation Club and Another v Gordonia Liquor Licensing
Board
1953 (3) SA 256
(C) at 260A-D
[4]
1955 (3) SA 547
(N) at 553D; see also
Poseidon
Ships Agencies (Pty) Ltd v African Coaling and Exporting Co (Durban)
(Pty) Ltd and Another
1980 (1) SA 313
(D&CLD) at 315E-H and 316A.
[5]
2013 (1) SA 83
(CC) para 114.
[6]
Van Loggerenberg,
Erasmus
Superior Court Practice
,
2
nd
ed Vol 2 [Service 5, 2027] at D1-58D – D1-59;
Swissborough
Diamond Mines (Pty) Ltd & Others v Government of the Republic of
South Africa
1999
(2) SA 279
(T) at 324F-G.
[7]
Cf
.
Minister of Land Affairs & Agriculture v D & F Wevell Trust
supra
at 200D
[8]
Cf.
Gelyke
Kanse and Others v Chairman of the Senate of the Stellenbosch
University and Others
[2017] ZAWCHC 119
para 169.
[9]
[1984] ZASCA 51
;
1984 (3) SA 623
(AD at 634E-635C.
[10]
Savvas
Socratous v Grindstone Investments 134 (Pty) Ltd
[2011]
ZASCA 8
para 16.