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[2022] ZAGPPHC 993
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Gcwabe Consulting (Pty) Ltd v South African Police Service (46817/2015) [2022] ZAGPPHC 993 (17 August 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
Case
Number:
46817/2015
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: NO
REVISED:
YES
17
AUGUST 2022
In
the matter between:
GCWABE
CONSULTING (PTY) LTD
Plaintiff
and
SOUTH
AFRICAN POICE SERVICE
Defendant
JUDGMENT
JANSE
VAN NIEUWENHUIZEN J:
[1]
In
the
judgment
handed
down
on
10
August
2022,
the
court
declared
the contract between the parties
invalid.
[2]
The only outstanding issue is the
appropriate remedy consequent upon the aforesaid finding. Section
172(1)(b) of the Constitution
enjoins the court to make any order
that is just and equitable.
Just
and equitable remedy
[3]
The
contract
between
the
parties
was
concluded
on
18
March
2013.
Subsequent
to
the conclusion
of the contract
the plaintiff performed
work
in
terms of the contract.
[4]
In a letter dated 14 August 2013, the
defendant informed the plaintiff that it was in breach of the
contract in several respects
and afforded the plaintiff 14 days to
rectify the breach.
[5]
The plaintiff did not, according to the
defendant, rectify the breach and the contract was cancelled by the
defendant on
4
November
2013.
[6)
It is common cause between the parties
that the plaintiff was duly paid for all the work it performed in
terms of the contract.
[7]
In
Buffalo City Metropolitan Municipality v Asia Construction
(Pty) Ltd
2019 (4) SA 331
CC, the Constitutional court considered
a just and equitable remedy in circumstances where a contractor has
performed in terms
of a contract that was declared invalid.
[8]
Having considered the facts of the
matter the court held as follows at para (105]:
"..
I
therefore
make
an
order
declaring
the
Reeston
contract
invalid,
but
not
setting it aside
so as
to preserve the rights to that the
respondent might have been entitled. It should be noted that such an
award preserves rights which
have already accrued but
does
not
permit a party to obtain further rights under the invalid contract."
[9]
The facts in
casu
differ somewhat from the facts in
Buffalo
City.
The plaintiff claims
damages in the amount of R 50 858 579, 43 due to the defendant's
breach
alternatively
repudiation of the contract. The amount
represents the plaintiffs loss of income for the remaining period of
the contract.
[10]
Should the contract not be set aside, the plaintiffs claim will
remain intact and will result in an undue benefit
derived from a
contract that has been declared invalid.
[11]
In the result, I am of the view that a
just and equitable remedy in the circumstances will be to set the
contract aside.
COSTS
[12]
Mr Mureriwa, counsel for the plaintiff,
submitted that the plaintiff should not be mulcted with costs in
circumstances where it
is the innocent party. Mr Mureriwa contended
that it is the officials in the employ of the defendant that failed
to follow the
prescribed procurement process and that the plaintiff
acted in good faith in entering into the contract.
[13]
The submission would have been
convincing, if the plaintiff did not, notwithstanding the plea of
invalidity, pursued the matter.
The defendant was successful in its
counterclaim and there is no reason why costs should not follow the
cause.
ORDER
In
the premises, I issue the following order:
1.
The contract between the parties is set
aside.
2.
The plaintiff is ordered to pay the
costs, which costs includes the costs of two counsel and the costs
reserved on 10 August 2022.
N.
JANSE VAN NIEUWENHUIZEN
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
DATE
HEARD PER COVID19 DIRECTIVES:
10
and 11 August 2022
DATE
DELIVERED PER COVID19 DIRECTIVES:
17
August 2022
APPEARANCES
For
the Plaintiff:
Advocate
I Mureriwa
Instructed
by
:
Baloyi Masango Incorporated
For
the Defendant Adv
JL Van der Merwe SC
Adv
J
Janse van Rensburg
Instructed
by : Soutie
van Rensburg Attorneys