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2021
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[2021] ZAECBHC 2
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Mariswe (Pty) Ltd v MEC for Roads and Public Works (411/21) [2021] ZAECBHC 2 (15 February 2021)
IN THE HIGH COURT
OF SOUTH AFRICA
EASTERN CAPE
DIVISION, BHISHO
CASE
NO: 411/21
In
the matter between:
MARISWE
(PTY) LTD
Applicant/Plaintiff
and
THE
MEC FOR ROADS AND PUBLIC WORKS Respondent/Defendant
JUDGMENT
STRETCH J.:
[1]
This
is an opposed application for summary judgment for payment of the sum
of R334 799,92 in respect of a written agreement
in terms of
which the plaintiff rendered engineering services to the defendant.
[2]
Despite
having admitted indebtedness to the plaintiff in the aforesaid
amount, the defendant alleges that he has a bona fide defence
to the
plaintiff’s action, and opposes the application on the
following grounds:
a.
that
the plaintiff’s claim has prescribed;
b.
that
the plaintiff has failed to comply with National Treasury Note 3 of
2016/17, and is therefore not entitled to payment of the
entire
claim.
[3]
The
plaintiff first made demand for payment of the amount claimed on
20 April 2016, followed by a letter of demand dated 10
August
2016, a final notice dated 10 October 2016 and a notice that legal
action was anticipated dated 25 January 2017. On 30 January
2017 the
defendant forwarded a memo to the plaintiff, the upshot of which was
that the defendant would only be able to settle outstanding
payments
due to consultants and contractors during the financial year
commencing April 2017. Summons was issued on 28 July
2020.
[4]
In
terms of
s 11(d)
of the
Prescription Act 68 of 1969
, the plaintiff’s
claim prescribes after three years.
Section 2(1)
provides that
prescription commences to run as soon as the debt arises. It is
common cause that this was on 20 April 2016.
By virtue of the
provisions of
s 14
, the running of prescription is interrupted by the
debtor’s express or tacit acknowledgment of the debt, and once
interrupted,
shall commence to run afresh from the date of
interruption.
[5]
Even
if the defendant’s memorandum of 30 January 2017 is deemed to
have interrupted prescription, the summons was still issued
out of
time. The plaintiff, in its affidavit in support of the summary
judgment application, refers to acknowledgment of
liability made by
way of correspondence on 9 September 2019. Unfortunately the
deponent to the affidavit has omitted to annex
the alleged
correspondence. I am accordingly constrained to refuse the
application on this ground of opposition alone, and
do not deem it
necessary, for purposes of this application, to address the second
ground of opposition.
[6]
The
defendant seeks attorney and client costs, together with an order
that the action be stayed until such costs have been paid.
I am not
inclined to grant such an order. It seems to me that the
failure to annex proof of a later admission of the debt,
particularly
when the debt has been admitted on the pleadings, may well have been
a mere oversight on the plaintiff’s part.
In the
circumstances I see no reason why the usual order, refusing summary
judgment should not follow.
ORDER:
a.
Summary
judgment is refused.
b.
The
defendant is granted leave to defend.
c.
The
costs of this application shall be in the cause.
_______________________
I.T. STRETCH
JUDGE
OF THE HIGH COURT
For the
applicant/plaintiff: Mr D. Pitt
Instructed by
Stirk Yazbek Attorneys
Care of Squire
Smith & Laurie Inc.
KING WILLIAMS
TOWN
Tel. 043 642
3430
Ref. Ms
Friderichs/SQ/MAT55666
Email
candidateattorneykwt1@squires.co.za
For the
respondent/defendant: Mr S. Mpakane
Instructed by the
State Attorney
Care of Office of
the Premier
KING WILLIAMS
TOWN
Ref.
573/20 – P15 (Ms Gabula)
Date heard: 15
December 2020
Date handed down
by way of electronic mail to the local attorneys: 15 February 2021