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[2022] ZAECMKHC 101
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Maziya General Services CC v Minister of Public Works N.O. and Another (295/2021) [2022] ZAECMKHC 101 (2 December 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, MAKHANDA)
Case
No: 295/2021
In
the matter between:
MAZIYA
GENERAL SERVICES
CC
Plaintiff / Applicant
And
THE
MINISTER OF PUBLIC WORKS N.O.
First Defendant / Respondent
TSHIYA
INFRASTRUCTURE DEVELOPMENT
(PTY)
LIMITED
Second Defendant / Respondent
JUDGMENT
– APPLICATION FOR LEAVE TO APPEAL
BESHE
J:
[1]
In my judgment delivered on the
23 June 2022, I issued an order upholding first defendant’s
exception. It was my considered view that plaintiff having failed to
plead the basis upon which it can enforce rights stemming
from a
contract that was concluded between it and the second defendant being
a joint venture on the one hand and the first defendant
on the other,
plaintiff’s particulars of claim were excepiable by reason of
being vague and embarrassing.
[2]
This is an appeal against my
judgment and order in the abovementioned regard on the basis
that I
should have found that plaintiff’s claim was not excepiable. It
was submitted that having acknowledged the existence
of the legal
principle that in the case of co-creditors the entitlement is
presumed to be joint rather than joint and several and
that as such
the co-creditor is entitled to his proportionate share and entitled
to claim his proportionate share independently.
Furthermore, that I
should have found that plaintiff’s particulars of claim were
not excepiable. In support of this submission
it was pointed out that
the joint venture agreement did not give rise to the existence of a
separate legal entity. And that therefore
the plaintiff and the
second defendant were two separate parties contracting with the first
defendant in terms of a joint venture.
It being a term of the joint
venture agreement that revenue of the project would be divided at a
ratio of 60% to the plaintiff
and 40% to the second defendant. That
this therefore gave plaintiff the standing to claim his pro rata
share against the first
defendant.
[3]
It will be borne in mind that
plaintiff’s claim stems from plaintiff
inter alia
disputing the notice of cancellation of the contract between first
defendant and the joint venture and later accepting repudiation
of
the contract.
[4]
At both the hearing of the
application itself and the application for leave to appeal,
reliance
was placed on the matter of
The
Director General of the Department of Public Works
and
Kovac
Investments 298 (Pty) Ltd
In
re
Kovac
Investments 298 (Pty) Ltd
and
The
Director General of Public Works
.
[1]
Similarly in that matter, an exception had been raised concerning the
non-joinder of the other party to a joint venture. Having
heard
regard to decided cases and other authorities, the court in that
matter concluded that: It is clear that in the absence of
contractual
provisions to the contrary, a joint lessor has a claim against the
lessee for his pro-rata share of rent received (or
due). The court
found that plaintiff in that case was not precluded from claiming
from the defendant, rent due by it in terms of
the lease (albeit that
the claim is limited to its pro-rata share).
[5]
The application is opposed on
the premise that there are no reasonable prospects that another
court
will find that plaintiff could act unilaterally to enforce rights
flowing from agreement entered into with a joint venture
without
being authorised to do so as required or as provided for also under
Clause 7
of the joint venture agreement. This clause deals
with a project committee. The project committee seems to be concerned
with activities
pertaining to the responsibilities and obligations of
the parties for purposes of finalising the project.
[6]
Section
17 (1) (a) (i)
of
the
Superior
Courts Act
[2]
provides that leave to appeal may only be granted where the judge
concerned is of the opinion that the appeal would have a reasonable
prospect of success. I am unable to find that there are no reasonable
prospects of the appeal succeeded on the grounds raised by
the
applicant as aforementioned.
[7]
Accordingly, applicant is granted
leave to appeal to the Full Bench of this division. Costs to
be costs
in the appeal.
N
G BESHE
JUDGE
OF THE HIGH COURT
APPEARANCES
For
the Applicant / Plaintiff
:
Adv: G Brown
Instructed
by
: VAN DER BILT ATTORNEYS
C/o
WHEELDON RUSHMERE & COLE INC.
119
High Street
MAKHANDA
Ref:
M van der Veen/Michelle/S23694
Tel.:
046 – 622 7005
For
the 1
st
Respondent / Defendant :
Adv: J J Nepgen
Instructed
by
: STATE ATTORNEYS
C/o
WHITESIDES ATTORNEYS
53
African Street
MAKHANDA
Ref:
Mr. Barrow/C12739
Tel.:
046 – 622 7117
Date
Heard
: 8 November 2022
Date
Reserved
: 8 November 2022
Date
Delivered
: 2 December 2022
[1]
Case
Number 3823/09 dated 11 August 2010, a judgment of the North West
Gauteng High Court.
[2]
Act
10 of 2013.