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[2018] ZAECMHC 33
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Royal HaskononGDHV (Pty) Ltd v Alfred Nzo District Municipality (319/18) [2018] ZAECMHC 33 (21 June 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE LOCAL DIVISION, MTHATHA
Case
no. 319/18
Date
heard: 19/6/18
Date
delivered: 21/6/18
Not
reportable
In
the matter between:
Royal
HaskononGDHV (Pty)
Ltd
Applicant
and
Alfred
Nzo District
Municipality
Respondent
JUDGMENT
Plasket
J:
[1]
The applicant, by way of a simple summons, claimed from the
respondent payment of R1 259 500, which it alleged was
due
and payable ‘in respect of invoice number 1003400 . . . for the
preliminary design of the scheme and off-channel dam
storage and
completing business plan approval as per the extension of scope of
appointment to include stage three of the project
in the Umzimvubu
Ward 6 Water Supply Scheme’. It also claimed interest and
costs.
[2]
The respondent entered an appearance to defend and the applicant then
filed an application for summary judgment. The respondent
opposes
that application. It does so through the affidavit of Mr Ernest
Dzide, the respondent’s acting manager for water
services.
[3]
The crisp issue that I am required to decide is whether the
respondent has raised a bona fide defence that is good in law. See
Joob Joob Investments (Pty) Ltd v Stocks Mavundla Zek Joint
Venture
2009 (5) SA 1
(SCA) para 32;
Maharaj v Barclays
National Bank Ltd
1976 (1) SA 418
(A) at 426C-D.
[4]
In his affidavit, Mr Dzide set out the background to the present
dispute. In 2011, he said, the respondent invited tenders for
the
design and implementation of the Umzimvubu Ward 6 Water Supply
Scheme. It was divided into three phases. The tender was awarded
to
the applicant.
[5]
Mr Dzide stated that phases 1 and 2 were completed and phase three
has yet to commence. Indeed, he stated that ‘[n]o work
at all
has been commissioned on phase 3 of the project’. From this he
concluded that no payment is due to the applicant on
account of its
‘alleged performance in phase 3 of the project because no
performance has been rendered’.
[6]
He encapsulated the respondent’s defence as follows:
‘
[12]
I have seen the plaintiff’s simple summons. It claims payment
of the sum of R1 259 500 . . . being an amount
allegedly
due, owing and payable by the defendant to the plaintiff for the
preliminary design of the scheme and off channel dam
storage and
completing business plan approval as per extension of scope of
appointment to include stage three of the project. I
have read what
is stated in the simple summons in conjunction with annexures A, B, C
and D thereto.
[13]
At the outset, it is apposite to make it clear that the preliminary
design of the scheme formed part of phase 2 of the project,
not phase
3 and that business plan formed part of phase 1 of the project, not
phase 3. The defendant does not owe the plaintiff
in respect of
phases 1 and 2 of the project, the plaintiff having rendered services
in relation thereto, submitted invoices and
the defendant having
honoured such invoices. As already stated elsewhere in this
affidavit, no work has been done yet by the plaintiff
in respect of
phase 3 and thus, no payment is due.’
[7]
The allegations made in Mr Dzide’s affidavit amount to this: if
the applicant is claiming for payment for work in relation
to phase
3, no payment is due because phase 3 has not commenced yet and the
applicant could not have done any work; if the applicant
is claiming
for the work described in the summons, that work was performed in
phases 1 and 2 and was paid for by the respondent.
[8]
These are defences that are good in law – that payment either
was not due at all or has been effected. In my view, the
respondent
has disclosed fully the nature and grounds of its defence. It has
thus succeeded in raising a bona fide defence and
so summary judgment
must be refused.
Maharaj v First National Bank Ltd
1976 (1) SA
418
(A) at 426A-B.
[9]
I make the following order.
(a) The application for summary
judgment is dismissed.
(b) The respondent is granted leave to
defend.
(c) The costs of this application
shall be costs in the trial.
________________________
C
Plasket
Judge
of the High Court
APPEARANCES
For
the applicant: F M Masweneng
Instructed
by
Masweneng
Attorneys, Pretoria
Brauns
Nyembezi, Mthatha
For
the respondent: A M Bodlani
Instructed
by
S
Diko Attorneys, Ntabankulu
T
L Luzipho Attorneys Inc, Mthatha