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[2019] ZAFSHC 73
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Swimming South Africa v Members of the Executive Council Department of Sport, Arts, Culture, and Recreation of the Free State and Another (6254/2018) [2019] ZAFSHC 73 (23 May 2019)
FREE
STATE HIGH COURT, BLOEMFONTEIN
REPUBLIC
OF SOUTH AFRICA
Case
No. : 6254/2018
In
the matter between:-
SWIMMING
SOUTH
AFRICA
Applicant
And
MEMBERS
OF THE ECEUTIVE COUNSEL
1
st
Respondent
DEPARTMENT
OF SPORT, ARTS, CULTURE
AND
RECREATION OF THE FREE STATE
HEAD
OF DEPARTMENT OF SPORT, ARTS,
2
nd
Respondent
CULTURE
AND RECREATION OF THE FS
CORAM:
MOLITSOANE, J
HEARD:
16 MAY 2019
JUDGMENT
BY
MOLITSOANE, J
DELIVERED:
23 MAY 2019
[1]
This is an application for summary judgment in which the plaintiff
claims payment of the amount of R5 469 576.55 for
alleged
money the defendants undertook to donate to the plaintiff in order
for the plaintiff to host the 12
th
African Swimming Championship 2016 in Mangaung.
[2]
This application is opposed on the basis that there was no oral
agreement for the alleged donation of the money and further
that the
request for the funding had not been approved by the Executive
Committee(EXCCO) and the Provincial Treasury.
[3]
Adv, Sibeko SC submitted as a preliminary argument that the
particulars of claim of the plaintiff were excipiable and on the
papers before me summary judgment could not be granted. I deal with
this point first.
[4]
In its particular of claim the plaintiff makes the following
allegations:
AD PARAGRAPH 8.
During the period
June 2015 to May 2016, the Plaintiff applied to the Department to
host the 13
th
Cana
Senior Africa Swimming Championships in Mangaung, during October
2016(the event) ,which application included inter alia an
application
for ‘Political support for the event’ as well as
‘Financial assistance in the sum of R8.5 million’(the
application).
AD PARAGRAPH 9.
On or about 7 September
2015 the Department replied to Plaintiff’s application wherein
they recorded part of the Agreement
in writing, and recorded their
undertaking to:
9.1 partner with
Plaintiff to host the event
9.2 endeavour to make
financial contribution (pending approval by EXCO) towards the hosting
of the event.
AD PARAGRAPHS 11
AND 12
Further, during September
2015, the Plaintiff, duly represented by its chief executive officer,
Shaun Leslie Adriaanse, and the
Department, duly represented by the
Head of Department, Adv TH Malakoane concluded a verbal agreement.
The material terms of
the oral agreement were, inter alia, the following, that:
12.1 The Department would
provide funding for the event;
12.2 The funding would be
in the amount of approximately R8 500 000.00;
12.3 The payment of such
funding would be due by the Department on receipt of a tax invoice
from Plaintiff once all the cost had
been calculated.
AD PARAGRAPH 15
On or about 24 May 2016
Plaintiff presented the application to the Departments, there and
then represented by its Executive Committee
as well as approximately
30 additional representatives of the Departments. Immediately after
the meeting, Plaintiff was advised
that its application, including
the application for a financial contribution (the “contribution”)
as outlined hereinabove,
was approved.
[5]
As a starting point it is perhaps important to note that this court
is not seized with the merits of an exception. In my view
I am called
upon to adjudicate whether the plaintiff has made up a case to
sustain summary judgment.
[6]
Rule 32 requires the plaintiff in an application for summary judgment
to verify the cause of action and the amount claimed and
also to aver
that in his opinion the defendant does not have a bona fide defence
to the claim and lastly that the notice
of intention to defend
was delivered solely for the purposes of delay.
[7]
The court in
Arend
v Astra Furnishers (Pty) Ltd
[1]
said that the excipiability of a claim was a matter which fell to be
considered in the context of weighing a plaintiff’s
compliance
with Rule 32(1) and (2) .In terms of Annexure POC2 the respondent
undertook to endeavour to make a financial contribution
towards the
hosting of the event. This undertaking was made subject to the
approval of the EXCO. There are no allegations that
the EXCO gave the
said approval which was the subject of the undertaking to make a
donation. It is unclear on the particulars of
claim when such
approval was made by the EXCO.
[8]
It also appears that the plaintiff and the first respondent,
represented by the second respondent entered into a verbal agreement
in September 2015 in terms of which the first respondent undertook to
provide funding in the approximate amount of R8 500 000
for
the hosting of the event to the plaintiff the payment of which would
become due upon receipt of a tax invoice from the Plaintiff.
This
appears to be the verbal agreement the plaintiff seeks to rely on.
[9]
In paragraph 15 of its particulars of claim the plaintiff further
alleges that on or about May 2016 the plaintiff presented
the
application to the First respondent, then and there represented
by the Executive Committee and other representatives
of the first
respondent. He further alleges that immediately after the meeting
Plaintiff was advised that its application for financial
contribution
was approved.
Proper
reading of the particulars of claim appears to be that the plaintiff
entered into the agreement to donate funds for the event
with the
first respondent in September 2015. This is the verbal agreement in
which the first respondent was represented by Adv.
Malakoane. Again
the particulars of claim seems to suggest that an undertaking to make
a financial contribution was only made after
the presentation on the
24
th
May 2016.This
appears to be the second agreement.
[10]
Rule 18(6) provides as follows:
“
A party who in his pleading
relies upon a contract shall state whether the contract is written or
oral and when, where and by whom
it was concluded, and if the
contract is written a true copy thereof or of the part relied on in
the pleading shall be annexed
to the pleading.”
[11]
The applicant’s particulars of claim in respect of the
undertaking allegedly made on the 24
th
May 2016 do not
disclose “
where and by whom”
the alleged
undertaking was made nor does it disclose “
where and by
whom
” the undertaking was given and accepted on behalf of
the plaintiff and defendants.
[12]
It is not clear whether the respondent relies on the undertaking of
September 2015 or one of September 2016. Adv. Sander submits
that the
crucial thing is that the defendants do not deny the existence of the
agreement. In my view the agreement is denied by
necessary
implication. If I were to grant judgment in favour of the plaintiff
the first question to ask oneself would be on what
purported
agreement judgment should be granted herein. Would it be on the
original verbal agreement of September 2015 or on the
agreement of
the 24t May 2016?
[13]
It is not the case for the plaintiff that the agreement of the 24th
May 2016 novated the one of September 2015.Novation has
not been
pleaded either expressly or by necessary implication. An intention to
novate is not presumed and must be proved either
by an express
declaration of the parties or by way of necessary inference from all
the circumstances of the case
[2]
I am unable to infer on the circumstances of this case that the
agreement of the 24
th
May 2016 novated the alleged agreement of September 2015. It has to
be borne in mind that the agreement of novation presupposes
the
existence of a valid agreement between the parties .The defendants
deny the existence of a valid contract. It is unclear if
the cause of
action is premised on the agreement of September 2015 or one of the
24
th
May 2016 or both. On this point alone I am unable to find that the
plaintiff has made necessary allegations to sustain a cause
of action
and I find that it has failed to comply with Uniform Rules 32(1) and
(2).In my view it is unnecessary to go into the
merits of the
defendants’ defence in view of the fact that the plaintiff
failed to verify its cause of action. Accordingly
an application for
summary judgment must fail.
I
make the following order.
ORDER:
1.
The application for
summary judgment is dismissed
2.
The defendants are
granted leave to defend;
3.
Costs shall be costs in
the cause.
____________________
P.E.
MOLITSOANE, J
On
behalf of applicant: Adv. A Sander
Instructed
by:
Matsepes
Inc
Bloemfontein
On
behalf of respondents: Adv. T Sibeko SC
With
Adv Nhlapo
Instructed
by:
State
Attorney
BLOEMFONTEIN
[1]
1974(1) SA 296 ( C) at 314
[2]
Amler’s Precedents of Pleadings 9
th
ed by LTC Harms on page 277