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[2017] ZALMPPHC 15
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Tshepega Engineering (Pty) Ltd v Roads Agency Limpopo (SOC) Ltd (1007/2016) [2017] ZALMPPHC 15 (29 June 2017)
REPUBLIC OF
SOUTH AFRICA
IN THE HIGH
COURT OF SOUTH AFRICA
LIMPOPO
DIVISION, POLOKWANE
CASE
NO: 1007/2016
Not
reportable
Not
of interest to other judges
Revised.
In
the matter between:
TSHEPEGA
ENGINEERING (PTY)
LTD
PLAINTIFF/APPLICANT
(Reg
Nr: 2000 / 029629 / 07
And
ROADS
AGENCY LIMPOPO (SOC) LTD
DEFENDANT
/ RESPONDENT
Reg
Nr: 2001 / 025832 / 07
JUDGMENT
MANGENA
AJ
1.
In
this summary judgment application, the applicant claims payment for R
1 354 106.72 against the Respondent, payment
of interest
calculated at 9% from 07 September 2015 to date of payment as well as
the costs of suit.
2.
The
applicant is Tshepega Engineering (Pty) Ltd, a company duly
registered and incorporated in terms of the laws of the Republic
of
South Africa with its main place of business at 09 Biccard Street,
Polokwane.
3.
The
respondent is Roads Agency Limpopo (SOC) Ltd, a state owned entity
with its offices at 26 Rabe Street, Polokwane.
4.
The
applicant based his claim on the appointment letter issued by the
Respondent on 12 December 2007 attached to the bundle and
marked
annexure
“A1”.
The letter states that the remuneration for consulting services
(Including disbursements for survey, EIA, Social, Geotech. Site
staff
etc) will be in accordance with the gazetted rates and the
stipulations in the agreements and annexures for consulting
Engineering
Services (Latest Revision) as used by RAL.
5.
Subsequent
to the issuance of the appointment letter, applicant signed a
document titled “RAL” Agreement for Consulting
Engineering services. Date of Revision April 2014. The document was
signed by the applicant on 23 April 2015. The respondent has
not
signed the document.
6.
Following
the appointment and the signing of the agreement, applicant rendered
the consulting engineering services to the Respondent
in respect of
the upgrading of road D1392 from Ga-Masha to Mampuru to Tukakgomo to
Mankgabane, in Sekhukhune District of Limpopo
Province.
7.
A
tax invoice dated 07 August 2015 was issued and presented to the
respondent for payment in respect of the services rendered. It
is
this invoice that gave rise to the legal proceedings including the
summary judgment application.
8.
The
respondent has filed an affidavit in which he sets out various
grounds upon which the application is opposed. The nature of
the
grounds as I understand them and explained by counsel are principally
that the applicant lacks
locus
standi
to bring the proceedings as it is not the entity appointed in 2007.
The respondent further argues that the appointment of the respondent
was done in violation of the Public Finance Management Act and the
Supply Chain Management processes.
9.
The
respondent’s counsel accordingly urged me in his submission to
disregard both the appointment letter and the “unsigned”
agreement on the basis that the documents are contradictory of each
other in that the appointment letter is addressed to Tshepega
Holdings (Pty) Ltd whereas the agreement refers to Tshepega
Engineering (Pty) Ltd. Significantly there is no dispute on the
question
whether the services were rendered or not, nor is there a
dispute on the quality of the work performed. There is equally no
dispute
on the amount claimed.
10.
Counsel
for the applicant submitted that the deponent to the opposing
affidavit is not in a position to argue non-compliance with
the PFMA
and Supply Chain processes as he was not employed by the Respondent
at the time of the applicant’s appointment.
He further argued
that the fact that the respondent company could not locate the
documents cannot be a reason to conclude that
the appointment was
irregular and in violation of the internal processes. I agree with
this submission. It is the duty of the respondent
and it’s
appointed officials to keep records of its service providers. In the
absence of documentation to back up the claim
of illegal appointment,
the allegation is based on conjecture and speculation
11.
On
the issue regarding
locus
standi
,
Counsel for the applicant submitted that nothing turns on the
difference in the names as contained in both the letter and the
“unsigned” contract. The reference to Tshepega Holdings
(Pty) Ltd in the appointment letter is a mistake by the respondent
and such a mistake does not go to the root of the contract. In any
event, the respondent has already admitted that the applicant
was
amongst a number of consulting engineering companies with open-ended
appointments whose appointment was being investigated
as part of due
diligence. This in my view put to rest the issue of
locus
standi.
12.
It
is an established law that in summary judgment application the
respondent is required in asserting that he has a
bona
fide
defence
to fully disclose the nature and the grounds of the defence and the
material facts relied upon therefor. The requirements
were
stated by Corbett JA as he then was in
Maharaj
v Barclays National Bank Ltd,
1979 (1) SA 418
(A) at 426 B – C
as follows:
[1]
“
all that
a court enquires into is (a) whether the defendant has “fully”
disclosed the nature and grounds of his defence
and the material
facts upon which is founded and; (b) whether on the facts so
disclosed the defendant appears to have, as to either
the whole or
part of the claim, a defence which is both bona fide and good in law.
If satisfied on these matters the court must
refuse summary judgment
either wholly or in part, as the case may be.”
The position
was stated in Shepstone v Shepstone
(1974 (2) SA 4
62CN)
[2]
as follows “A defendant may successfully resist summary
judgment where his affidavit shows that there is a reasonable
possibility
that the defence he advances may succeed on trial.”
13.
Against
the test expounded in Maharaj, I am required to make a finding
whether the respondent has fully disclosed the nature and
grounds of
his defence and the material facts upon which it is founded.
14.
I
have given serious and thorough consideration to the affidavit filed
in opposition of the application for summary judgment with
a view to
establish the nature and the grounds of the defence which if proved
at trial will constitute a valid defence. I was also
mindful of
Counsel’s submission that the respondent does not need to set
out the defence with particularity and precision
of a pleading. It is
indeed so that the court will not be disposed to grant summary
judgment where, giving due regard to the facts,
it is not persuaded
that the plaintiff has an unanswerable case.
15.
The
respondent’s affidavit does not in my view satisfy the dual
requirements of the test in Maharaj. The affidavit is riddled
with
innuendos, conjecture and speculation. The respondent seeks to resile
from a contract and refuse to honour a contractual obligation
on the
basis of illegality but fails to put material facts before the court
upon which he claims illegality. It is not enough for
the respondent
to state that the appointment of the applicant was illegal. Something
more in respect of the allegation of irregularity
or illegality as a
defence should be stated. If the respondent is not able to give any
further information, he should say so and
give reasons why he cannot
do so. In this regard the deponent to the opposing affidavit only
gives a lamentation of the instability
he found when he joined the
institution. He conducted due diligence but fails to state what his
findings are with regard to the
appointment of the applicant in
particular. I accordingly find that the affidavit is lacking and
inadequate in material respects.
16.
It
is only when adequate information is placed before court that the
court can be satisfied that the defence is
bona
fide.
On
the facts placed before me, I remain unpersuaded by Mr Masipa,
counsel for the respondent, that I should exercise my discretion
in
favour of the respondent and grant the defendant leave to defend. I
do not agree that the respondent has demonstrated a defence
which if
advanced at trial will constitute a valid defence.
17.
In
the result, summary judgment is granted against the
defendant/respondent as follows:
1.
Payment
of the sum of
R
1 354 106.72.
2.
Payment
of Interest on the capital sum of
R
1 354 106.72
at a rate of
9%
calculated from 07 September 2015 to date of payment.
3. Costs of the
summary judgment application on a party and party scale of the High
Court tariffs.
_______________________
MANGENA
AJ
ACTING
JUDGE OF THE HIGH COURT
LIMPOPO
DIVISION, POLOKWANE
REPRESENTATIVES:
1.
Counsel
for Plaintiff / Applicant
: Adv A J Venter
Instructed
by
: Alberts Attorneys
2.
Counsel
for the Defendant / Respondent : Adv R
G Masipa
Instructed
by
:
AM Vilakazi Tau Attorneys
3.
Date
of Hearing
: 13 June 2017
4.
Date
handed down
: 29 June 2017
[1]
1979 (1) SA 418
(A) at 426 B - C
[2]
1974 (2) SA 4
62 CN