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[2019] ZAFSHC 48
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Event AV Direct Proprietary Ltd v Maluti-A-Phofung Local Municipality (5657/2017) [2019] ZAFSHC 48 (18 April 2019)
IN THE HIGH
COURT OF SOUTH AFRICA,
FREE STATE DIVISION,
BLOEMFONTEIN
Case
number: 5657/2017
In the matter between:
EVENT AV DIRECT
PROPRIETARY
LTD
PLAINTFF/RESPONDANT
and
MALUTI-A-PHOFUNG
LOCAL
MUNICIPALITY
DEFENDANT/EXCIPIENT
HEARD
ON:
29
November 2019
JUDGMENT
BY:
CHESIWE,
J
DELIVERED
ON:
18
APRIL 2019
[1]
The
Plaintiff instituted action against the Defendant for payment of
R8 257 145.32, which arises from the Defendant’s
acknowledgement of liability towards the Plaintiff (Claim A) and
payment in the amount of the amount of R5 815 414.55 for
contractual damages (Claim B). The Defendant is defending the claim.
[2]
The
Plaintiff is Event AV Direct Proprietary Limited, a private company
duly incorporated in terms of the company laws of the Republic
of
South Africa with registration number 2014/1449635/07 and with its
address at 62 Henry Street Bloemfontein Free State.
[3]
The
Defendant is Maluti- A-Phofung Municipality, a municipality as
contemplated by Section 2 of the Local Government: Municipality
Systems Act 32 of 2000 with its address at Cnr Moremoholo and
Motloung Streets Setsing Business Complex Phutaditjhaba, Free State.
[4]
The
Plaintiff submitted a proposal in March 2015 pursuant to a request by
the Defendant for several projects of management services
relating to
the organisation and hosting of the annual Dipontsho tsa
Maluti-a-Phofung Festival. On 28 April the Defendant’s
bid
adjudication committee awarded a tender to the Plaintiff to render
the required services. The Plaintiff received a letter
of
appointment dated 30 April 2015 which confirmed the following:
“
7.1
The fees payable to the Plaintiff by the Defendant would be the sum
of
R7 028 000
exclusive of Value Added Tax;
7.2
the duration of the project would be twelve months from the date of
the
signing
of the contract;
7.3
The Plaintiff and the Defendant would sign a service level agreement
Within
7 days of acceptance of the appointment.”
[5]
On
20 July pursuant to the letter of appointment the Plaintiff and
Defendant in concluding the service level agreement the
Plaintiff was
represented by Mr. Romeo Lekoba, a director of the Plaintiff and the
Defendant was represented by TC Taetsane a Municipality
Manager of
the Defendant. The services contract was such that the
Defendant would pay the Plaintiff for services rendered
upon
presentation of progress reports, a valid tax invoice and any other
information the Defendant would deem necessary in order
to process
payment to the Plaintiff. According to the Plaintiff the
Defendant did not allow the Plaintiff to render services
for the
years 2016 and 2017. And as a result of the Defendant’s conduct
and repudiation of the contract the Plaintiff’s
legitimate
expectation of profit was in the amount of R5 815 414.
55.
[6]
The
Plaintiff on the 7 December 2017 filed an application for summary
judgment against the Defendant. The matter was placed
on the
roll for the 14 December 2017 on which date the parties by agreement
removed it from the roll and leave was granted to the
Defendant to
defend the action and costs were in the cause.
[7]
The
Plaintiff delivered a notice of intention to amend the particulars of
claim in term of Rule 28(1) of the Uniform Rules of Court.
The
Defendant did not object to the Plaintiff notice of intention to
amend its particulars of claim. The Plaintiff effected the
amendment
in terms of Rule 28 (5) of the Uniform Rules of Court.
[8]
The
Defendant file its exception on 25 June 2018 to which the
Plaintiff contends that the exception was not filed within the
required 15 days as the date of filing expired on 8 June 2018. On 9
July 2018 the Plaintiff then filed a notice calling upon the
Defendant to remove the cause of complaint. According to
the Plaintiff the Defendant refused to comply. In the
premises
the Plaintiff contends that the Defendant’s exception dated 25
June 2016 was not delivered in compliance with the
Uniform Rules of
Court and therefore should be struck out.
[9]
The
issue is whether the Defendant exception constitutes an irregular
step as envisaged in Rule 30 and 30A.
[10]
During
oral argument Advocate Els on behalf of the Plaintiff submitted that
the exception was delivered out of time and the Defendant
did not
comply with Rule 30(A) and 30(2). He indicated that the Defendant’s
exception application should have been accompanied
with an
application for condonation.
[11]
Advocate
Botes Counsel on behalf of the Defendant submitted that the Defendant
pleaded to the particulars of claim and after the
Plaintiff realised
its predicament, the Plaintiff filed for an amendment, this amendment
had an effect on the date. He indicated
that the Defendant did not
object to the amendment and nor was the Defendant place under bar.
The Defendant still has to plea to
the amendment. He submitted that
the Defendant be allowed to plea to the amendment in the particulars
of claim.
[12]
Rule
23 of the Uniform Rules of court provides that:
“
(1) Where
any pleading is vague and embarrassing or lacks averments which are
necessary to sustain an action or defence as the case
may be, the
period allowed for filing any subsequent pleadings delivers an
exception therefor and may set it down for hearing in
terms of
paragraph (f) of Sub rule (5) of Rule (6). Provided that where the
party intends to take exception that a pleading is
vague and
embarrassing he shall within the period allowed aforesaid by notice
afford his opponent an opportunity of removing the
cause of complaint
within 15 days, provided further that the party exception shall
within 10 days from the date on which a reply
to much notice is
reserved or from the date on which such reply is due, deliver his
exception.
(2)
Where
any pleading contain averments which are scandalous vexation or
irrelevant, the opposite party may within the period allowed
for
filing any subsequent pleading, apply for the striking out of the
matter aforesaid, and may ……. The court shall
not grant
the same unless it is satisfied that the applicant will be prejudiced
in the conduct of his claim or defence, it is not
to be granted.
(3)
Wherever
an exception is taken to any pleading, the grounds upon which the
exception is founded shall be clearly and concisely stated.
(4)
Wherever
any exception is taken to any pleading or an application to struck
out is made, no plea, replication or other pleading
over said be
necessary.”
[13] The
procedure for amendment of pleading is regulated in terms of
Uniform Rule 28 provides that:
“
(1) any
party desiring to amend a pleading or document other than a sworn
statement,
filed in connection with any proceedings, shall notify all parties of
his/her
intention to amend and shall furnish particulars of the amendment.
(2) The
notice referred to in sub-rule 1 shall state that unless written
objection to
the
proposed amendment is delivered in 10 days of delivery of the notice,
the
amendment
will be effected.
(3) An
objection to a proposed amendment shall clearly and concisely state
the
grounds
upon which the objection if founded.
(4) If objection which complies with
sub-rule (3) is delivered within the period
referred to in sub-rule (2), the party
wishing to amend may within 10 days lodge an application for leave to
amend.
(5)
…
..”
[14]
In this instance the Plaintiff notified the Defendant of its
intention to amend its particulars of claim.
The Defendant did
not object to the amendment of the particulars of claim as stipulated
in the uniform rule 28 (2), instead the
Defendant filed the purported
exception. It is on this basis that the Plaintiff contends that
the Defendant did not comply
with the rules and thus its exception
application constitutes an irregular step and abuse
of the court processes.
In
Wendy
Machanik Property Holdings CC v Guiltwood Properties (Pty) Ltd
[1]
the following was stated at paragraph 8: “….
These
steps must be taken ‘within 15 day after the amendment has been
effected’ meaning 15 days after the amending party
has effected
the amendment and implying a party other than the amending party
taking these steps. The time period is specific
and the
sub-rule leaves no room to include an unspecified period of time
after the failure of the ‘affected ‘party
to make
consequential amendments. The latter need not but ‘may’
make consequential amendments. Moreover,
there is no provision
in rule 28 (
8) deeming that the existing
plea to have been made subsequent to the
amendment. As I have said the consequence of a failure to make
consequential amendments
is that in terms of Rule 22 (3) every
allegation of fact…. Which is not stated in the plea to be
denied or to be admitted,
shall be deemed to be admitted.”
[15]
Rule 30(1) provides that: “
A
party to a cause in which an irregular step has been
taken by another party may apply to court to set it aside
.
[2]
[16]
In
Cochrane
v City of Johannesburg,
[3]
the court at paragraph [31] said “
the
irregular step mentioned in the rule related only to an irregular
step taken by a party in respect of the Uniform Rules of Court.
I am accordingly, of the view that, rule 30 was intended to serve as
a notice of objection in respect of proceedings other than
Uniform
Rules of Court, It wold be casting the net too far and would
lead to abuse. In any event, Rule 30 was never
intended to
serve as a basis for the objection to procedural irregularities in
respect of other legislation. Rule 30 was
meant to deal with
irregular steps taken by parties involved in litigation where the
irregularity emanated from the use of the
Rules of Court.”
[17]
Our courts have pronounced on this issue and held that Rule 30
applies only to irregularities of form and not matters
of
substance
[4]
.
[18]
Accordingly this court need to consider if the Defendant’s
notice in terms of Rule 23 (1) was out of time.
The Defendant
in terms of Rule 28 (8) had 15 days within which to make any
consequential adjustments and to take steps in as set
out in Rule
23. The 15 days expired on 8 June 2018. The Defendant
delivered its exception on 25 June 2018. It
is trite that the
plaintiff cannot object to the exception on the grounds that it was
delivered outside the prescribed period allowed
for the delivery of a
plea before the exception of the period in the notice of bar.
[5]
The courts have decided on several cases where it was
held that an exception is a pleading and as such a notice of
bar is
necessary before a Plaintiff can object to an exception on the
grounds that it was filed out of time
[6]
.
In this instance the Plaintiff has not filed a notice of bar against
the Defendant, instead the Plaintiff proceeded with
an application in
terms of Rule 30.
[19]
It is trite that the procedures laid down by the rules of
court should be complied with. Where there is non-compliance
with any rule, the uniform rules provides for the condonation of such
non-compliance in terms of Rule 27 of Uniform Rules of Court.
Counsel
for the Defendant conceded that there is no condonation application
before court however the non-compliance will not prejudiced
the
Plaintiff, but this application would prejudiced the Defendant if
granted. In
S
v Dzukuda and Others
[7]
,
Ackerman, J said:
“
the
test is not whether the procedure is ideal, but whether it is fair.”
[20]
The Defendant contends that the Plaintiff by adding a new cause of
action in the amendment will prejudice the Defendant, and
the
Defendant still has to plead to that amendment, indeed it will
prejudice the Defendant if an opportunity to plead was not afforded.
There is no objection in principle to the new cause of action or
defence added by way of the amendment, even if it has the effect
of
changing the character of the action to determine the real issue
between the parties, but the amendment must be bona fide.
[8]
[21]
The rules of court which constitute the procedural machinery of the
courts
are intended to expedite the business of court.
[9]
The rules are
not
an end in themselves to be observed for their own sake. They
are
provided
to secure the inexpensive and expeditious completion of
litigation
before the courts.
[10]
In
Federated
Trust Ltd v Botha,
[11]
the
court
went further and said: “
where
one or either of the parties has failed to
comply
with the requirements of the rules or order made in terms thereof and
prejudice
has thereby been caused to his opponent, it should be the courts
endeavour to remedy
such prejudice in a manner appropriate to the
circumstances,
always bearing in mind the object for which the rules were
designed.”
[22]
The Defendant did not make any consequential adjustment to its
plea to the Plaintiff’s original claim as envisaged
in Rule
28(8). And thus according to the Plaintiff the Defendant is deemed to
have admitted to the Plaintiff’s amended particulars
of claim.
Counsel for the Defendant submitted that where a pleading as
contemplated in Rule 28(8), the other party (in this
case the
Defendant) should deliver an exception thereto.
[23]
The Plaintiff relied on the written agreement between the parties
only to abandon it and decided to amend its particulars of
claim to
which the Defendant contends that the amended particulars of claim
introduced a new cause of action and to which the Defendant
still
have to file its plea. Rule 28(8) provides an opportunity
to the Defendant to invoke the provisions of Rules
23 and 30 after
the Plaintiff has effected an amendment of its particulars of claim.
[24]
As correctly stated by the Defendant in the opposing affidavit that
the Defendant is a custodian or gatekeeper of public funds
as
envisaged in the Local Municipality Finance Management Act no 56 of
2003. It is paramount that when an Organ of State in the
National,
Provincial or Local sphere of government, or any other institution
identified in national legislation, contracts for
good or services,
must do so in accordance with a system which is fair, equitable,
transparent, competitive and cost effective.
Be it that
as it may, matters with such substantial amounts need to be correctly
ventilated by the courts. An order to dismiss
such application
must be taken with precautions in order to avoid granting court
orders in haste.
[25]
The High court is vested with inherent jurisdiction
[12]
to condone any procedural irregularity as non-compliance with its
rules. No fixed rules can fetter that discretion.
The
rules of court stout general guidelines within which that discretion
is to be exercised. As a result, the court may condone
any
irregularity or neglect which does not materially prejudice the other
party.
[26]
Accordingly, the Plaintiff’s objection to the exception
on the ground that it was delivered outside
the prescribed period
allowed for the delivery of a plea but before the expiration of the
period provided in the notice of bar
cannot stand. Thus the
Defendant is allowed to pursue its exception in terms of Rule 23 of
the Uniform Rules of Court.
[27]
In my view the Defendant did not take an irregular
step and therefore the exception should first be
deposed of and the
Defendant should be afforded an opportunity to file its plea in
respect of the new allegations and averments
introduced by the
Plaintiff by virtue of the amendment that was effected on 18 May
2018.
[28]
Accordingly there is no merit in the Plaintiff objection that the
notice in terms of Rule 23 (1) was
filed out of time.
ORDER
[29] In
the result the Plaintiff’s application in terms of Rule 30 is
dismissed with costs as
between party and party scale.
S.
CHESIWE, J
On
behalf of Plaintiff: Advocate J ELS
Instructed
by:
McIntyre Van Der Post Attorneys
Bloemfontein
On
behalf of Defendant: Adv. FW Botes SC
Instructed
by:
Azar &
Havenga Incorporated
Bloemfontein
[1]
2007 (5) SA 90
(W) at 93I – 94 C
[2]
Searle v Searle 1967 (2) 19 (O) at 21 A-C,
Erasmus J held that a counterclaim could not be introduced after a
Defendant s’
plea had been filed.
[3]
[4]
Singh v Vorkel
1947 (3) SA 400
( C) at 406;
Odendaal v De Jager (4) SA 307 ( O) at 310 F-G
[5]
Erasmus Superior Court Practices – page
B1-158A
[6]
Felix and Another v Norther NO and Others
1994
(4) SA 502
(SEC) at 506 E.
6 (CCT23/00
[2000] ZACC 16
(27
September 2000)
[8]
Trans-Drakensberg Ltd v Combined Engineering
(Pty) Ltd
1967 (3) SA 632
(D) at 643 C.
7
SOS
Kinderhoff International v Effie Lentin Architects
1991 (3) SA 574.
8
Federated Trust Ltd v Botha
1978 (3) SA 645
(A).
9
Federated Trust Ltd supra
[12]
Jerold Taitz describes it in
The
Inherent Jurisdiction of the Supreme Courts (1985) pp 8-9 “This
latter jurisdiction should be seen as those unwritten
powers,
ancillary to its common law and statutory powers, without which the
court would be unable to act in accordance with justice
and good
reason. The inherent powers of the court are quiet separate
and distinct from its common law and its statutory
powers; e.g. in
the exercise of its inherent jurisdiction the court may regulate its
own procedures independently of the rules
of court.”