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[2022] ZALMPPHC 6
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PGN Civils (PTY) LTD v Greater Giyani Municipality (4924/2020) [2022] ZALMPPHC 6 (21 January 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
(LIMPOPO
DIVISION, POLOKWANE)
Case
No: 4924/2020
REPORTABLE: YES
OF INTEREST TO OTHER
JUDGES: NO/YES
REVISED.
DATE:
21 January 2022
In
the matter between:
PGN
CIVILS (PTY) LTD
APPLICANT
And
GREATER
GIYANI MUNICIPALITY
RESPONDENT
JUDGMENT
MG
PHATUDI J:
Summary
:
Civil procedure-provisional sentence summons-rule 8 (1) Uniform Rules
of Court – Plaintiff
required in
provisional sentence summons to found its cause of
action-impermissible to do so in replaying affidavit-mutually
contradictory
facts pleaded in summons put cause of action in
disarray, and the change caused cannot be repaired replication-
In
casu, the discrepancies in the summons render the claims
unquantifiable to sustain a provisional sentence order-held,
provisional
sentence order refused, costs deferred.
[1] This application is
brought in terms of rule 8 (1) of the Uniform Rules of court (`the
rules`). The defendant was served with
a provisional sentence summons
to first answer the claims against it. The claim is opposed.
[2] The plaintiff in the
summons relies on two distinct claims. I consider it apposite to
first lay a foundation upon which the
two claims are based.
[3]
The plaintiff’s claim (claim 1) is that on or about the 14 July
2017 and at Giyani, the parties concluded a written agreement
(“the
agreement”) which comprised of the letter of appointment dated
04 July 2017
[1]
) attached to the
summons. The amount of R20 143 128 .28 accepted, was as
offered by the plaintiff in its bid document
attached to the
provisional sentence summons and marked as an annexure
[2]
(`A1`) enclosing the basic terms and conditions of the relevant
tender. (contract No: G/G/M/015/018/2017) In support of the claim,
the plaintiff also attached the letter of appointment to which
reference was made, the acceptance letter, and the Tender document
which was subject to the usual General Conditions of Contract
(`GCC`).
[4]
The plaintiff having performed its obligations in terms of the said
agreement submitted to the defendant its tax invoice being
for
payment of the amount certified by the engineers pursuant to
certificate no.5 duly annexed to the summons
[3]
.
[5] This annexure was
issued and identified by the plaintiff’s engineers as a “final
progress payment certificate No.07”
dated 26 November 2018, for
the attention of the defendant’s municipal manager.
[6] The certificate
referred to included “
half of the Contractor’s
retention dated 27 November 2018”
, the latter’s tax
invoice for work executed as described. The amount claimed was in the
tune of R2 855 283.00,
VAT inclusive, (15%) payable to the
plaintiff. (PGN Civils (Pty) Ltd).
[7] In
paragraph 6 of the particulars of claim, the plaintiff, however,
refers to a tax invoice in respect of the amount certified
by the
engineers for interim payment (certificate no.7) marked annexure
“A6”to the summons
[4]
.
[8] The latter annexure
“A6” reflects an amount payable to the plaintiff in
respect of claim 1 as the sum of R65 207-77.
The relevant tax
invoice in support of claim 1 is dated 14 December 2018.
[9]
Quiet intriguing, is the fact that what the plaintiff pleaded as
annexure “A5”, being the certified amount of R65 207-77
patently differs from certificate No: 7 which reflects an amount of
R2 856 283.00 VAT inclusive. This alone is problematic
to
make a determination, regard being had to the general principles of
pleading, in particular, to which I shall enlarge on shortly
in this
judgment.
[10] The aforegoing facts
are as pleaded by plaintiff in support of claim 1.
[11] I turn now to
consider Claim 11 which invariably is predicated on the facts pleaded
in respect of claim1.
[12]
The plaintiff, in claim 11 once again, relies on the agreement to
which reference was made as read with the `GCC` and a certificate
of
completion issued by the engineers on 14 September 2018
[5]
.
[13] It is significant to
mention though
obiter,
that annexure ‘A7’, being a
certificate of completion, was signed by the parties and their duly
authorized agents.
[14]
Subsequent thereto, and on 25 September 2019, the plaintiff submitted
its tax invoice to the defendant for payment of the amount
of
R1 121 119.81, VAT inclusive
[6]
.
[15] The plaintiff
alleged in its particulars of claim that the defendant has failed to
meet its obligations to settle payments
due by it made in both claim
1 and 11. Both these claims are, however, disputed by the defendant
in its answering affidavit. (“AA”).
The defendant has in
fact pleaded in its “AA” that it has
bona fide
defence in that it has paid to the plaintiff all its contractual
liabilities, the retention money included.
[16]
The defendant’s case is that it has already paid a retention
fee to the plaintiff in the sum of R2 014 312.83,
with
additional amount of R45 361.46. The total amount paid to the
creditor according to the defendant, translates to R2 059 674.28.
This amount was allegedly paid to POLOKWANE SURFACING (PTY) LTD at
the instance of the plaintiff as evinced in annexures ‘BB1’and
‘BB2
[7]
’ annexed to
the answering affidavit.
[17] The transaction
referred to above was on account of the Cession agreement the
plaintiff ceded in favour of Polokwane Surfacing
(Pty) Ltd
(Surfacing) against the former’s debt in the sum of
R2 697 643.10. Notwithstanding the said discharge,
so the
argument went, the plaintiff continued to submit further claims which
were honoured, until the contract value was milked
dry.
[18] As I understand, the
hard core of the dispute appears to me to be in the amount of
retention owing, due and payable to as the
plaintiff well as the
payment of the ceded amount.
[19]
In order to extricate itself from the impase, the defendant’s
contention was that it had successfully negotiated with
Surfacing to
settle the retention fee and an additional amount of R45 361.46,
which according to the defendant, was accepted
by Surfacing as a full
discharge of the compromise. This much appears from annexures ‘BB3’
and ‘BB4’ respectively
[8]
,
which evinces acceptance by Surfacing of the amount of R2 059 674.28
offered.
[20] Based on the above
considerations, it was contended on behalf of the defendant that the
amount reflected in Claim 1 and 11,
respectively, is not owing, due
and payable by it to the plaintiff.
[21]
Furthermore, the defendant’s submission was that even if,
assuming for a moment, that claim 1 was due and payable, same
would
be due not to the plaintiff, but to Surfacing to liquidate the ceded
amount. Additionally, so the argument went, any payment
under the
aegis of claim 1, would not only be unlawful, but would offend the
“unauthorized, wasteful and fruitless expenditure”
principles prohibited by law
[9]
.
[22] In an attempt to
counterveil the disputed facts and the defence put forward, the
plaintiff in its replication impermissibly
introduced new facts not
pleaded in its particulars of claim in support of provisional
sentence judgment.
[23]
The above mentioned observation is replete in paragraph 3 (3.1 to
3.6.4) of the replying affidavit
[10]
)
(“RA”).
[24] Crucially, the
allegations raised in paragraph 5 (5.1 to 5.10) of the `RA`, are in
my view, an introduction of unpleaded facts
in the particulars of
claim, which the plaintiff now seeks to usher in through the back
door. It is so that the plaintiff is bound
by the facts it has
pleaded in the main, and should not, therefore, weave a new case in
reply. If this approach is permitted, it
would without a doubt,
certainly prejudice the defendant who after being served with a
reply, its opportunity to respond further,
would be shut.
[25] I may in sum,
express the view that although the plaintiff might have attempted to
straighten up its claim in reply, the facts
belatedly alleged as
structuring the basis of its claim, appears nowhere in the summons
which is a precursor to launch a provisional
sentence judgment. This
the plaintiff did not do from inception.
LEGAL
METRIX:
[26] It is axiomatic that
provisional sentence judgment applications are governed by the
provisions of rule 8 of the Uniform Rules
of Court. (“the
rules”)
[27] The present claim is
anchored in five (5) bundles to which several annexures can be found
as attachments in support of the
claim. This is what the plaintiff
did in accordance with rule 8 (3) of the rules. But, the matter does
not end there.
[28] That,
notwithstanding, at the centre of resisting the application, the
defendant raised forceful legal principles, correctly
so, in my view,
that in a matter such as the present, the plaintiff was required to
found its cause of action in the summons, and
may not do so in the
replying affidavit.
[29] The aforegoing
principle is well vested in our legal literature and case law.
[30]
This principle initially received prominence as early as 1971 in the
case of DE BRUYN V MUNRO
[11]
[31]
Ten (10) years later in 1981, the principle was cited with deference
by the court in BARCLAYS NATIONAL BANK V SERFONTEIN
[12]
where Goldstone J stated that:-
“
It
is clear that a plaintiff in provisional sentence proceedings is
obliged to establish his cause of action in the summons, and
may not
do so in his replying affidavit.”
[32] It Is generally
accepted legal practice that provisional sentence is an abreached
interlocutory remedy designed to come to
a creditor`s assistance who
has liquid proof of his/her action claim to secure a speedy relief
without resorting to more expensive
and dilatory exercise of an
illiquid suit. Put differently, if successfully prosecuted, it
precludes a defendant with no
bona
fide
defence from
engaging in dilatory tactics.
[33] In the instant case,
given the facts highlighted as mutually contradictory in paragraphs
[5] to [9] above, the discrepancies,
as pleaded in the summons, place
the plaintiff’s cause of action in disarray. It came as no
surprise that the latter resorted
to brew new facts in its replying
affidavit, a procedure outlawed in the two guiding authorities to
which reference was made. I
may safely state that the reply, despite
its attractiveness, does not take the matter further as the damage
caused cannot be repaired
in the replication.
[34] Importantly, the
plaintiff in paragraph 9 of Claim 11 pleaded that, in terms of the
agreement, as read with the `GCC`, a certificate
of completion, was
issued by the engineers and to that end, relied on annexure ‘A7’.
However, a reading of annexure
‘A7’ does not, in my view,
quantify precisely the amounts said to be due and payable by the
defendant. This `Completion
Certificate` (‘A’) is no more
than an informative document that would ordinarily require the aid of
oral evidence in
order to constitute a liquid document. This is
apparent from paragraphs 9, 10 and 11 under Claim 11 of the summons.
[35]
This approach has indeed infringed upon the principle enunciated in
L.P SCHITZ and SCHWARTZ NNO V MARKOWITZ
[13]
where the court held that:-
“
I
am not prepared to accept this proposition. A litigant cannot, as it
were, throw a mass of material contained in the record of
an enquiry
at the court and his opponent, and merely invite them to read it so
as to
discover for themselves some cause
of action
, which might lurk therein,
without identifying it. (Own underlying added).
[36] The above
dictum
stems from the general principle that a pleader must specify the
contractual clauses on which he/she places reliance.
[37] That said, I am
fortified in my view that, similarly, paragraph 6.4 of the ‘RA’
in which the plaintiff seeks to
accentuate its claim, surfaces for
the first time in the replication.
[38] Furthermore,
paragraphs 6.5 and 6.6 of the “RA” emerge, one again,
late after the “AA” was delivered
that its claim is in
fact for 50% of the said retention and, again specify clause 6.10.5
of the `GCC` as the contractual clauses
in a replying affidavit.
[39]
It was also contended on behalf of the defendant that the amount of
the R65 207.77 due to plaintiff which ground Claim
I, took into
account the Cession amount of R2 616 658.92 payable to
Surfacing. All what the plaintiff had done in reply
paragraph 6.4,
(‘RA’) merely reproduced in “RA” the figures
in respect of Claim 1.
[14]
[40]
There is, therefore, a dispute of facts as to how much of the
retention fee is owing, due and payable by the defendant.
Accordingly,
the view I take of the matter is that both claims cannot
be easily calculable to support a provisional sentence judgment. I
also
could not find any plausible explanation offered by the
plaintiff for these apparent discrepancies in its claim even in
reply.
[41] In the light of the
above considerations, I am satisfied that the defendant has a
bona
fide
defence, far from a technical one, which would ordinarily
raise a triable issue in due course. Conversely, I find that for the
material
discrepancies alluded to, taking into account the facts of
the claim in its totality, the plaintiff failed to frame out a clear
cut claim to justify the granting of a provisional sentence order. To
that end, the application is destined to fail.
[42] For that, I deem the
following order appropriate.
ORDER:
(a)
The provisional sentence is refused;
(b)
The defendant is ordered to deliver
a plea within 10 days after the granting of this order;
(c)
The costs are deferred for future
determination in due course.
MG
PHATUDI
JUDGE
OF THE HIGH COURT, LIMPOPO DIVISION
POLOKWANE
APPEARANCE
Counsel
for the Plaintiff
:
Adv
Bosson
Briefed
by
: Thomas
Swanepoel Inc, Tzaneen
Counsel
for the Defendant
:
Adv W
Lusenga
Briefed
by
: F.M
Maluleke Inc
C/O
Mudzuli Attorneys, Polokwane
Date
Heard
:
20 October 2021
Judgment
Delivered electronically by circulation to the partie’s legal
representatives by email and uploaded on website and
released to
SAFLii. The date and time for hand- down is deemed to be 10h.00 21
January 2022.
[1]
Paginated Index, annexure “A1, P8, Index 1.
[2]
‘
A3’
those annexure is divided into 5 volumes of 100 pages and indexed in
bundles.
[3]
Index Bundle 4, pp 385-400.
[4]
Index Bundles 5, P.401.
[5]
Ibid. P402, annexure ‘A7’.
[6]
Ibid. PP403-406.
[7]
(
Annex
‘BB1) is an instruction issued by plaintiff to the defendant.
Annex ‘BB2’is proof of payment tendered
by defendant to
Polokwane Surfacing.
[8]
Annex ‘BB3’is offer to settle the retention fee due
which was occasioned by the existing cession, annex ‘BB4’constitutes
acceptance by Polokwane Surfacing of the retention fee offered by
the defendant.
[9]
The phraseology appears in the
Local Government: Municipal Finance
Management Act 56 of 2003
, and I cited it herein for the sake of
completeness.
[10]
Paginated
Index 5, PP 423- 425.
[11]
1971
(1) (4) S.A 624
(O) at 628 B-C.
[12]
1981
(3) SA 244
(W.L.D) at 249 B-C.
[13]
1976
(3) SA 772
(W) at 775
[14]
Paginated
page, 428, Index 5, “RA”.