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[2021] ZAGPPHC 69
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TMT Services and Supplies (Pty) Limited v Mpumalanga Local Government: Department of Transport and Another (59047/2012; 17827/2014) [2021] ZAGPPHC 69 (22 January 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
Case
No: 59047/2012
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: NO
DATE:22/1/2021
In
the matter between:
TMT
SERVICES AND SUPPLIES (PTY) LIMITED
PLAINTIFF
and
MPUMALANGA
PROVINCIAL GOVERNMENT:
DEFENDANT
DEPARTMENT
OF ROADS AND TRANSPORT
AND
CASE
NO:17827/2014
In
the matter between
TMT
SERVICES AND SUPPLIES (PTY) LIMITED
PLAINTIFF
And
MPUMALANGA
PROVINCIAL GOVERNMENT:
DEFENDANT
DEPARTMENT
OF SAFETY, SECURITY AND LIAISON
JUDGMENT
RAULINGA
J,
1.
The applicant TMT and Supplies (Pty) Ltd, seeks an order compelling
the discovery of certain specified
documents which it alleges are
relevant for the conducting of the litigation. The applicant has
further narrowed the relief sought
by it in reply by limiting the
documentation sought to that referred to in paragraph 1.2 and 1.3 of
the notice of application .
The application accordingly only concerns
the defendant in case number 5904/2012, being the Department of Roads
and Transport (hereinafter
referred to as the “respondent”).
2.
On 7 March 2018, having heard counsel for the parties, I issued an
order which included both the defendants
in the consolidated action.
On 18 May 2018, the applicant or plaintiff filled a notice in terms
of Rule 41(2) abandoning part 1
of the judgment or order handed down
on 7 March 2018. This leaves the Department of Roads and Transport as
the only respondent
in this matter.
3. On
19 March 2018, the respondent filed a notice in terms of Rule 49(1)
(c) requesting for reasons
of the judgment or order granted on7 March
2018. This notice never reached me, until the 11 September 2020, when
I received a note
from the acting DJP alerting me of the said notice
.I immediately reverted indicating that same never reached my
chambers.
4.
The following are reasons for the Judgment or order so granted.
5. The
applicant, as plaintiff claims payment of the sum of R33 Million from
the respondent for services
rendered to the Provincial Government
pursuant to a tender and contract for traffic surveillance and
enforcement system.
6.
It seems to me that the respondent does not contend that the services
were not provided, but raises
instead a variety of other defences. In
January 2016, the respondent amended Its plea to add a further
defence. The defence is
based on the allegation that it was a
material condition of the tender that all tender applicants be
registered as debt collectors
in terms of the Debt Collector’s
Act No 114 of 1998. The respondent pleads that the applicant was not
in fact registered
as a debt collector, it mispresented to the
respondent that it was registered and accordingly the tender was
awarded to the applicant
at the time when the applicant was in fact
disqualified from tendering. The respondent accordingly pleads that
the award of the
tender, and the subsequent contract, are null and
void.
7. The
applicant contends that the respondent was aware that the applicant
and other tenders were not
registered as debt collectors, the
respondent was
aware
that the applicant utilised the services
of a third party as its authorised debt collector and that this was
acceptable to the respondent.
Further, that the respondent was aware
that a number of tenderers were not registered as debt collectors,
and decided not to disqualify
any of them and adjudicated all of
them, together with the applicant, as competing tenderers.
8.
The respondent avers that the request for discovery in terms of Rule
35(3) cannot be countenanced,
because the documents to be discovered
are irrelevant or immaterial as provided for in section 2 of the
Civil Proceedings Evidence
Act 25 of 1965. Therefore, the said
documents cannot conduce to prove or disprove any point or fact in
issue.
9. It
is also the argument of the respondent that it served and filed its
amendment to its plea as
long ago as 21 January 2016. That to date
hereof, the applicant has failed to replicate to such plea and is, in
terms of Rule 26
of the Uniform Rules of Court,
ipso facto
barred from doing so.
10.
To this averments, the applicant submits that in its opposing
affidavit and the heads filed on its behalf,
the respondent
overstates the test for relevance of documentation as was laid down
in
Compagnie
Financiere
et Commerciale du Pacifique
v Peruvian Guano
Co,
11 Q.B.D 55
and also referred inter
alia in
Continental Ore Construction v Highveld Steel
&
Vanadium Corp
Ltd at 597 with approval as follows:
“
under
the earlier Rule it was held that discoveries had to be made of every
document -
‘
which
not only would be evidence upon any issue but also which, it is
reasonable ta suppose, contains information which may- not
which
must- either directly or indirectly enable the party requiring the
affidavit either to advance his own case or damage the
case of his
adversary….’
In
the Compagnie financiere case, supra, which is the fons et origo
of
the test of relevance quoted above, Brett L J, at page 63, explained
as follows why he had inserted the words “either directly
or
indirectly” in laying down the principle-
“
I
have
put in ...(these )... words because ...a document can properly be
said to contain information which may enable the party requiring
the
affidavit either to advance his own case or to damage the case of his
adversary, if it is document which may fairly lead him
to a train of
enquiry which may have either of these two consequences”.
11. I
am in agreement with the applicant that the test for relevance is
accordingly whether the documentation
may enable the party, directly
or indirectly, to advance his case. The documentation will indirectly
allow this, if it may fairly
lead the litigant to a trail of enquiry
which may be of assistance.
12.
The relevancy of the documents is determined from the pleadings and
not extraneously
therefrom. A party may only obtain inspection of
documents relevant to the issues of the pleadings -
Swissborough
Diamond Mines (Pty) Ltd v Government of the Republic of South Africa
1999(2) 279 (T) at 311A.
13.
The meaning of relevance is circumscribed by the requirement that the
documents and
or recordings relate to or may be relevant to “any
matter in question:” Any matter In question is determined from
the
pleadings
Swissborough
(supra) at 316 J to 317 A.
14.
Interestingly, the respondent also raises the issue whether the
written agreement
relied upon by the first respondent in the
consolidated actions under case number 59047/2012 and 17827/2014 is
invalid and unenforceable.
15.
In the first place, this application pertains only to the respondent
under case number
59047/2012. Secondly, I am satisfied that the
applicant has described the documents in a manner that they are
identifiable. As
such the applicant may require production of any
number of documents, it is not limited to number of documents.
Moreover, the applicant
has dealt in its affidavit with all relevant
issues-
Swissbrough
supra- at 322I - J and 323 B-C.
16.
As the applicant submits, the facts at issue are
(i) Whether
the competing tenderers were not registered as debt collectors;
(ii) Whether
the competing tenderers disclosed the fact, that they were not
registered to the respondent
either in their tender applications or
in their tender presentations to the respondent;
(iii) Whether
the respondent was aware, at the time of adjudication, that the
competing tenderers were not
in fact registered as debt collectors;
and
(iv) Whether
the respondent nevertheless proceeded to adjudicate the competing
tenders on the basis. that all qualified
for consideration.
17.
I am with the applicant that the relevance of the tender application
and tender presentations
of the competing tenderers Is manifestly
relevant to its case. It fulfils both the criteria of “directly
and indirectly”
relevant referred to by Brett L J in
Compagnie
supra. Further, the documents are directly relevant to the
factual allegations in this case, and indirectly in the sense that
they
can fairly be said to open a line of enquiry that will be
relevant to the dispute. Moreover, if the documents are not
discovered,
the applicant will be unable to succeed in presenting its
proposed answer to the defence.
18.
The respondent alleges that it served and flied its amendment to its
plea as long ago as 21 February
2016. That to date hereof, the
applicant has failed to replicate to such plea and is, in terms of
Rule 26 of the Uniform Rules
of Court,
ipso facto
barred from
doing so. The respondent raises the issue of waiver and estoppel.
19.
In my view, and as submitted by the applicant, the respondent’s
amendment raised an entirely new
defence, and one that on its own
would non-suit the applicant if upheld, as is clear from the order of
8 July 2016, in terms of
Rule.33(4).
20.
Notwithstanding, the applicant has already filed a replication and
needs only deal with the new defence.
Therefore, the applicant is
not
ipso
facto
barred from amending its already existing
pleading. Secondly, to the extent that the rule may seek to bar an
amendment to existing
replication, the applicant is entitled to seek
condonation in terms of rule 27.
21.
Indeed, if the applicant was the only tenderer who was not registered
as a debt collector
at the time of tendering, then proving a waiver
or estoppel will be difficult since the waiving of the condition for
the applicant
alone would constitute the granting of an unfair
advantage to one tenderer over others.
22.
While it is trite that the applicant (plaintiff) should make its
factual allegation on its
pleadings, it is also important that the
documents be provided to the court to know whether the factual
assertion is true or not.
For that reason, the applicant must be
allowed to compel discovery. I reiterate that a litigant is entitled
to the discovery of
documentation which may lead it on a “trail
of enquiries” which would ultimately advance its case.
23.
It seems to me that the Issue of confidentiality raised by the
respondent in paragraph 22 of its heads of
argument is not persisted
with. Further, since confidentiality is not the same as legal
privilege and does not constitute a valid
ground to refuse discovery,
save in exceptional circumstances. Exceptional circumstances do not
exist in this case.
24.
The contract that the respondent referred to, was concluded after the
tendering process. As the applicant
correctly submits, this does not
impact on whether the respondent was entitled to waive a tender
requirement across the board fer
all tenderers at the time of
tendering.
25.
Consequently, the application must be granted with costs.
26.
The order made on 7 March 2018, is accordingly amended and granted as
follows:
a.
“The respondent is ordered to discover the documents in terms
of paragraph 1.2 and1.3 of the notice of
application.
b.
The order concerns the defendant in
case
number: 59047/2012,
being the Department of Roads and Transport”.
JUDGE
T.J RAULINGA
JUDGE
OF THE HIGH COURT
APPEARENCES
For
the Applicant
: Adv J Newdigate SC
Adv
A.D Brown
Instructed
by
:Natalle Visagie INC
For
the Defendant
:Adv M.M Oosthuizen SC
Adv
S.G Webster
Instructed
by
:Soutie Janse Van Rensburg Attorneys
Matter
heard on
: 07 March 2018
Date
of Judgment
: 22 January 2021