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[2021] ZAGPJHC 426
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Ekurhuleni Metropolitan Municipality v Qubekela Projects CC In re: Qubekela Projects CC v Ekurhuleni Metropolitan Municipality (2019/28509) [2021] ZAGPJHC 426 (8 September 2021)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: 2019/28509
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: NO
REVISED.
NO
DATE
8 September 2021
In
the matter between:
EKURHULENI
METROPOLITAN MUNICIPALITY
Applicant
and
QUBEKELA
PROJECTS
CC
Respondent
In
re
the matter between:
QUBEKELA
PROJECTS CC
Plaintiff
and
EKURHULENI
METROPOLITAN MUNICIPALITY
Defendant
JUDGMENT
MAHON
AJ
[1]
This is an application in terms of Uniform
Rule 33(4) in which the applicant, the defendant in the main
proceedings, seeks:
[1.1]
that its special pleas be heard and
determined separately, prior to the balance of the issues in the
matter; and
[1.2]
an order that “
...
the hearing of the special plea (sic) may be enrolled on the opposed
motion court (sic)
”.
[2]
The respondent’s claim in the main
proceedings is for payment of an amount of R706 832.81 which is
said to be due to
the respondent in terms of the provisions of clause
6.8 of the contract concluded between the parties, comprised of the
General
Conditions of the Contract for Construction Works published
by the South African Institution of Civil Engineers (2010) (“the
GCC”).
[3]
The clause reads, in relevant part, as
follows:
“
6.8
Adjustment in rates and/or prices
6.8.1
Except as provided in this Clause or elsewhere in the Contract, the
rates and/or prices stated in the Pricing
Data shall be final and
binding throughout the period of contract.
6.8.2
If the contract data provides for the application of a Contract Price
Adjustment Factor, the value of certificates
issued in terms of
Clause 6.10.1 (excluding the value of those special materials
referred to in clause 6.8.3) shall be increased
or decreased by
applying a ‘Contract Price Adjustment Factor’ calculated
according to the formula and the conditions
set out in the Contract
Price Adjustment Schedule
.”
[4]
The Contract Price Adjustment Schedule, in
turn, makes provision for a formula to be applied to amounts
certified to be due to the
respondent in terms of any interim payment
certificate in order to adjust the amount certified to be due,
upwards or downwards,
as the case may be.
[5]
The
respondent alleges in its particulars of claim that “
the
defendant has short-paid the plaintiff the amount of R706 832,81
in respect of CPA due in terms of the construction contract.
The
calculation of this amount is set out in annexure “B”
hereto.
”
[1]
[6]
Annexure “B” to the particulars
of claim purports to set out the respondent’s entitlement to
payment of the aforesaid
amount by applying the requisite formula to
a schedule of amounts alleged to have been certified in a number of
interim payment
certificates.
[7]
The applicant raises three special pleas,
comprised, in essence, of the following:
[7.1]
the applicant contends that the
respondent’s claim is premature inasmuch as it has failed to
give notice of its intention
to institute legal action against the
applicant, as contemplated in section 3 of the Institution of Legal
Proceedings against Certain
Organs of State Act 40 of 2002;
[7.2]
the applicant pleads that the respondent’s
claim has been extinguished by prescription as contemplated in
section 11(d)
of the
Prescription Act 68 of 1969
in that its action
was instituted more than three years after the date that the
respondent acquired knowledge of both the debt
and the debtor or
ought reasonably to have acquired such knowledge; and
[7.3]
The applicant pleads that the respondent is
barred from proceeding with its claim by virtue of the provisions of
clause 10.3 of
the agreement which requires a party to raise an
invoice or dispute payment of any outstanding claims within a period
of 28-days
after completion of work.
[8]
Apart from the defences raise in the
special pleas, little else remains in dispute in respect of which
evidence is likely to be
led, apart from the quantification and
calculation of the respondent’s claim. This quantification and
calculation relates
to the correct application of an arithmetic
formula to the amounts which have been certified as due to the
respondent.
[9]
It
is trite that the overriding consideration when dealing with an
application for separation of issues under Uniform
Rule 33(4)
, is the
question of convenience to both parties and to the Court.
[2]
[10]
The thrust of the applicant’s
argument, as I understood it, was that the proposed separation would
lead to the expeditious
finalisation of the matter with the
concomitant curtailment of legal costs if any of the special pleas
were to be upheld. This
is, of course, true, as it would be in every
case where a special plea is raised which is dispositive of the
matter. However, a
consideration of convenience arising from a
separation of issues is to be adjudged, as I see it, in the light of
the comparison
of consequences which would flow from a dismissal of
the special pleas on the one hand and the eventuality of the special
pleas
being upheld, on the other.
[11]
Thus, a convenient point of departure, in
my view, is to consider the likely extent of time and costs which
would be saved in the
event of a separation of the special pleas and
their ultimate success, when compared with the time, costs and delay,
which would
follow in the event of a separation of the special pleas
but with their eventual dismissal. I consider this to be an
appropriate
starting point in the present matter primarily because of
what I understand the balance of the issues to be which would remain
in dispute in the event that the special pleas are not upheld.
[12]
On this score, counsel for both the
applicant and the respondent indicated that what would remain for
determination in such event
was confined, in essence, to the
quantification of the respondent’s claim. As I have previously
observed, the quantification
of the respondent’s claim is
arrived at by application of a contractually stipulated formula to be
applied to amounts certified
to be due by the applicant to the
respondent in a series of interim payment certificates tabulated in
annexure “B”
to the particulars of claim. It is largely
an arithmetic exercise.
[13]
Both the applicant and the respondent
submitted that a hearing devoted to this aspect of the matter would
occupy relatively little
hearing time.
[14]
The applicant submitted, however, that the
real benefit in seeking the separation was to have the special pleas
dealt with by way
of motion proceedings, thereby procuring a hearing
date sooner than would otherwise be achievable if the matter were to
proceed
by way of action proceedings. It was for this reason that the
applicant sought, in prayer 2 of its notice of motion, that the
separated
issues be disposed of by way of motion. The respondent’s
counsel indicated, however, that the respondent intended to lead
viva
voce
evidence in relation to the
special pleas, a right of which it would clearly be deprived if I
were to direct that the special pleas
were to be dealt with by way of
motion proceedings.
[15]
Nonetheless, it appears to me that very
little advantage is to be gained from the separation which is
proposed because very little
hearing time in relation to the balance
of the issues which are not sought to be separated would be avoided
if the special pleas
were upheld.
[16]
If the special pleas were to be dismissed
on the other hand, the parties will have been subjected to a number
of months’ delay
in the finalisation of the matter as a result
of the delay in procuring a trial date after the special pleas had
been dealt with.
[17]
I
am also mindful of the following
dictum
of Nugent JA in
Denel
(Edms) Bpk v Vorster
:
[3]
“
In
many cases, once properly considered, the issues will be found to be
inextricably linked, even though, at first sight, they might
appear
to be discreet. And even where the issues are discreet, the
expeditious disposal of the litigation is often best served
by
ventilating all the issues at one hearing, particularly where there
is more than one issue that might be readily dispositive
of the
matter. It is only after careful thought has been given to the
anticipated course of the litigation as a whole that it will
be
possible properly to determine whether it is convenient to try an
issue separately.”
[18]
It appears to me that if one were to weigh
the relatively nominal saving in hearing time (and I say relatively
nominal because the
parties are
ad idem
that very little evidence will be required in order to deal with the
quantification of the respondent’s claim) against the
rather
extensive delay in finalisation of the matter in that event, it would
not be convenient to grant the proposed separation.
Whilst it may be
true that expert evidence may be required in relation to the
quantification of the respondent’s claim, both
parties, again,
submitted that the extent of such evidence would be relatively
nominal. Although there may be additional costs
associated with the
preparation of expert summaries and the like, these do not seem to be
significant enough to warrant the risk
of a significant delay in the
finalisation of the matter due to the wait for a trial date.
[19]
Therefore, on a consideration of the issues
which arise from the pleadings of the matter, I do not believe that
it would be convenient
to direct that the special pleas be determined
separately or prior to the balance of the issues in the matter.
[20]
I accordingly make the following order:
[20.1]
The application dated 2 July 2020 is
dismissed with costs.
D
MAHON
Acting
Judge of the High Court
Johannesburg
APPEARANCES
:
For
the applicant: Adv M Makgato
Instructed
by:
Madhlopa & Thenga Incorporated
For
the respondent: Mr S Bunn (Attorney)
Instructed
by:
Hewlett Bunn Incorporated
Date
of hearing: 7 September 2021
Date
of judgment: 8 September 2021
[1]
Particulars
of Claim, par 9.
[2]
See
Minister
of Agriculture v Tongaat Group Ltd
1976 (2) SA 357
(D)
;
Braaf
v Fedgen Insurance Ltd 1995 (3) SA 938 (C);
[3]
2004
(4) SA 481
(SCA) at 485A–B