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[2020] ZAGPPHC 55
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Real Global Business-Solutions v State Information Technology Agency (32647/2017) [2020] ZAGPPHC 55 (10 February 2020)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
(1)
REVISED:
YES
/NO
(2)
OF
INTEREST TO OTHER JUDGES:
YES
/NO
(3)
REVISED.
Case
No: 32647/2017
10/2/2020
IN
THE MATTER BETWEEN:-
REAL
GLOBAL
BUSINESS-SOLUTIONS
Plaintiff
And
STATE
INFORMATION TECHNOLOGY AGENCY
Defendant
JUDGMENT
Kollapen
J
Introduction
[1]
This is an action in which Plaintiff claims payment in respect of 14
separate claims
arising out of a Labour Broker Contract in terms of
which the Plaintiff alleges, that it provided contractors to perform
and/or
to provide services to the Defendant on various individual
projects and for which it alleges it became entitled to payment from
the Defendant.
[2]
The Plaintiff’s case is that following its determination as a
preferred supplier
of the Defendant, it entered into a written
agreement with the Defendant (the primary agreement), which would
then enable it as
unaccredited service provider to submit quotations
to the Defendant for the provision of services m the Defendant and
where such
services we.re procured, a service level agreement (the
secondary agreement) would be entered into between Itself and the
Defendant.
The claims which constitute the totality of the action
instituted all arise from individual service level agreements.
The
evidence and the issues in dispute
[3]
While the Defendant has admitted the existence of both primary as
well as the secondary
agreements, it raised various defences in
response to the claims of the Plaintiff and they included that:-
a)
The
various service level agreements upon which the Plaintiff relies are
unlawful and/or invalid as they were not concluded. following
a
process which "is fair, equitable, transparent and cost
effective required by Section 217 of the Constitution. This defence
was not pursued during the trial.
b)
That
all of the 14 claims upon which the action is based have prescribed
and the plaintiff
is
accordingly precluded from seeking to enforce such claims.
c)
That
on the evidence the Plaintiff had failed to prove the terms of the
secondary agreements that would entitle it to payment.
d)
On
the merits, it placed in dispute that the Plaintiff bad proved that
the actual services for which it sought payment were provided
and
properly proved
.
[4] Untimely
much of the trial and the arguments focused on the defence of
prescription
and it may be useful to deal with that at the outset.
The
defence of prescription
[5]
The Plaintiffs pleaded case is that following the conclusion of the
14 service level
agreements relating to each of the claims which form
the subject matter of the action, it was required to submit invoices
to the
defendant on either a weekly or monthly basis and to annex to
those invoices legible copies of time sheets indicating the actual
number of hours which the specific contractor had rendered services.
The Defendant was required to effect payment of those invoices
within
30 days after submission.
[6]
All of the invoices which form the basis of the Plaintiffs claim were
submitted during
the period September 2009 to January 2013 and at the
time of their submission were accompanied by timesheets that
purported to
support every invoice so submitted. The evidence of Mr
Desai the former managing director of the Plaintiff confirmed that
when
the invoices were originally submitted they would have been
accompanied by legible timesheets. This appears to be in accordance
with the Plaintiffs· assertion in its particulars of claim
that it complied with its obligations in terms of the various
service
level agreement
[7]
Mr Desai's further evidence was that while the Defendant effected
payment of various
invoices which are not the subject matter of this
action, it failed to do so in respect of others and upon enquiry,
Plaintiff was
advised that either an invoice or timesheet was missing
or not legible and the Plaintiff was requested to provide a copy
which
it did. This appeared to have occurred on numerous occasions in
respect of the same claim until finally a Ms Clark who was also
in
the employment of the Plaintiff prepared a spreadsheet with the
outstanding unpaid invoices and met with a Ms Van Niekerk of
the
Defendant in order to reconcile the outstanding invoices and to
address any queries, Ms Clarks evidence was that this process
occurred in June 2014 and the spreadsheet that formed the basis of
her meeting with Ms Van Niekerk indicates in respect of many
of such
invoices the Defendants comments as being 'Requested copy of invoice
or supporting document "while the Plaintiffs
response thereto
was in many instances “Attached”
[8]
Thus on this score there is little doubt from the evidence that the
reason offered
for non-payment by the Defendant ·was the
absence of an invoice or a timesheet or both bot that by June 2014,
this gap had
been largely addressed following the meeting between
Ms-Clark and Ms Van Niekerk. Nothing of substance transpired after
that and
summons was issued in May 2017.
[9]
Summons was served on the 31 May 2017 and the Defendant accordingly
raised a special
plea· that the claims bad become prescribed
as more than J years had elapsed since they became due. Clearly on a
simple
timeline if the last of the claims was submitted in January
2013, the payment would have become due 30 days later and
prescription
would have begun to run from then resulting in the claim
prescribing in about February 2016 - well before Summons was issued
and
served.
[10]
Plaintiff filed a replication to the special plea of prescription and
while it admitted that the invoices
were submitted more than 3 years
prior to the institution the action, it pleaded that it had failed to
annex timesheets to the
invoices submitted to the Defendant and that
when the non- payment of those invoices was queried, the Defendant
pointed out that
no timesheets or supporting documents were annexed
to the invoices.
[11]
The Plaintiff further pleads that during June 2014 it resubmitted
those invoices and/or timesheets
and /or supporting documents that
had not been originally submitted or where the copies of documents
submitted were illegible.
Arising out of this Plaintiff contends that
the payment for those invoices would have become due in July 2014 and
that accordingly
when summons was issued in May 2017, the claims
evidenced by the invoices submitted in June2014 had not prescribed.
[12]
On the face of it what the Plaintiff asserts in its replication is at
odds with the case it advances
in its particulars of claim where it
alleges that· the plaintiff complied with its obligations in
terms of the secondary
agreement ‘ (the service level
agreements) ….. ·and furnished invoices to the
defendant to which plaintiff
annexed legible copies of the timesheets
as evidence (sic) by Annexure “RGB5 “
[13]
The dates of the invoices and timesheets evidenced by RG.B 5 all
relate to the period 2009 and thereafter.
[14]
The ·replication seeks to advance a different case then the
one that is evidenced in the
particulars
of claim but in any event the difficulty the Plaintiff has is that
the evidence does not support the
case
pleaded
in the replication in that the evidence of Mr Desai was invoices and
timesheets would have been submitted in compliance
with the secondary
agreement in the period 2009 and thereafter and this is to some
extent supported by the evidence of Mr Clark
that the Plaintiff would
have submitted the
timesheets
several times.
[15]
The
crisp question then is whether the action of the Plaintiff prescribed
by the time summons was issued in May 2017. Section 12
of the
Prescription Act No 68 of 1968 provides as follows:-
Section
12 of the Prescription Act provides for the running of the
prescription and in relevant party provides follows:-" 12
When
prescription begins to run
(1)
Subject to the provisions of subsection (2),(3) and (4). prescription
shall commence to run as soon
as the debt is due
(2)
If the debtor wilfully prevents the creditor from coming to know of
the existence of the debt, prescription
shall not commence to run
until he creditor becomes aware of the existence of the debt.
(3)
A
debt shall not be deemed to be due until the creditor has knowledge
of the identity of the debtor and of the facts from which
the debt
arises: Provided that a creditor shall be deemed to have such
knowledge if he could have acquired it by exercising reasonable
care"
[16]
The
evidence of Mr Desai was that the system operated by the Plaintiff
would have worked on the basis that an invoice together with
supporting documents would have been generated timeously and
submitted to the Defendant and further that when the Defendant
alleged
that it did not have a particular document it was more likely
that the Defendant had lost or misplaced it rather than that the
Plaintiff had not submitted it.
[17]
The consequence of this is that it must follow that in respect of all
of the claims of the Plaintiff,
the amounts payable would have become
due 30 days after the submission of invoice and supporting documents
in the period 2009 to
January 2013. That the Defendant later claimed
it did not have the documents submitted or that the copies were not
legible cannot
detract from the Plaintiffs own case and evidence that
it complied with:-its obligations in terms of the agreement and
submitted
what the· agreement obliged it to do so. That being
so the debt would have become due 30 days after submission and
leaving
aside whatever else occurred in that time, would have
prescribed before May 2017.
[18]
The
Constitutional Court in
Food
and Allied Workers Union obo Gaoshubelwe v Pieman's Pantry (Pty)
Limited
2018 (5) BCLR 527
(CC);
[2018] 6 BLLR 531
(CC) ; 2018 39 ILJ
1213 (CC) (20 March 2018)
held as follows:-
“
Thus,
once a debt becomes due, prescription begins to run and provided that
prescription is not interrupted by the circumstances
set out in
sections 13,14 and 15 of the Prescription Act, the debt shall, in
terms of section 10, be extinguished after the lapse
of time set out.
Once a debt has prescribed, there is no basis upon which a creditor
con seek in have non-compliance with the time
periods provided for in
the Prescription Act condoned. The debt has been extinguished and no
after-life or a resuscitation of the
debt is possible. Such an
outcome is consistent with providing the certainty and predictability
that prescription periods are intended
to introduce into the law
relating to the enforcement of debts. The circumstances under which
prescription begins to run, as well
as those that may interrupt its
running are all intended to provide a balance between fairness and
flexibility, on ,he one hand,
and certainty and predictability, on
the other. "
[19]
In
Myathaza
v Johannesburg Metropolitan Bus Services (SOC) Limited t
/a
Metrobus
and Others
2018 (1) SA 38
(CC) para 125
the Constitutional Court per Justice Zondo in separate concurring
remarked that:-
"[125]
There
are three important principles on which the Prescription Act is
based. The first is that, once a debt is due to a creditor
by a
debtor. prescription starts running. The second is that the creditor
must interrupt the running of prescription before it
runs for the
whole period of prescription applicable to that debt. The third is
that, if the
creditor
fails to interrupt prescription in the matter contemplated in the
Prescription Act before the relevant prescription period
expires and
the. debtor has not acknowledged liability during that period, the
debt prescribes upon the expiry of the
prescription
period. What these principles reveal is that , once prescription has
commenced running, unless the debtor acknowledges
liability or the
creditor interrupts the running of prescription in the manner
prescribed by section 15(1) read with subsection
(6) before the
expiry of the period prescribed for that debt, the debt is
extinguished upon the expiry of the period. The running
of
prescription is one side of the coin and the interruption of the
running is the other. This is evident
from
section 10(1) read with sections 12, 14 and 15.
''
[20]
The
inevitable conclusion must thus be that the Plaintiff's claim became
prescribed before the issue of summons. Of course one has
some
considerable measure of sympathy for the Plaintiff. It displayed
enormous patience in constantly providing copies of invoice
and
timesheets to the Defendant of what it had already submitted. It was
during this lime perfectly entitled to proceed with summons
but
instead chose 10 try and resolve the matter by engaging the
Defendant. Meanwhile the clock of prescription was running down
during this period and ultimately when the Plaintiff elected to issue
summons it was met by a plea of prescription.
[21]
Under the circumstances the plea of prescription must be upheld and
the Plaintiff’s claim falls
to be dismissed with costs.
ORDER
l
make the following order:-
The
Plaintiffs claim is dismissed with costs.
NJ.
KOLLAPEN
JUDGE
OF THE HIGH
COURT,
PRETORIA
APPEARANCES
DATE
OF HEARING
: 5
NOVEMBER 2019
DATE
OF JUDGMENT
: 10
February 2020
PLAINTIFFS
COUNSEL
: Wayne
Gibbs
INSTRUCTED
BY
:
SD Nel Attorneys
DEFENDANTS
COUNSEL
: Makosi
Gwala
INSTRUCTED
BY
: Diale
Mugashoa Attorneys