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[2017] ZAGPPHC 363
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Bushbuckridge Municipality v Hwali Business Enterprise CC (84119/2014) [2017] ZAGPPHC 363 (30 March 2017)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
Case
number:84119/2014
Date:30/3/17
Reportable:
No
Of
interest to other Judges: No
In
the matter between:
BUSHBUCKRIDGE
MUNICIPALITY
APPLICANT
AND
HWALI
BUSINESS ENTERPRISE
CC
RESPONDENT
(REG
NO: 2002/099632/23)
JUDGMENT
TOLMAY,
J:
[1]
The Applicant in this application applies for the striking out of
Respondent's particulars of claim. The Applicant alleges that
Respondent failed to comply with its notice in
terms of rule 35(12) and (14) in which it
inter alia
requested a copy of:
"The written
agreement entered into during June 2011 or thereafter between the
Defendant and the Plaintiff extending the agreement
of August 2010
referred to in paragraph 3.2 of the particulars of
claim."
[2]
The application is brought in terms of Rule 30A of the Uniform Rule
of Court which provides inter alia that:
"(1) Where
a
party fails to comply with these rules or with
a
request
made or notice given pursuant thereto, any party may
notify the
defaulting party he or she intends to, after the lapse of 10 days, to
apply for an order that such rule, notice or request
be complied with
within 10days or that the claim or defence be struck out."
[3]
The Rule 30A notice was delivered on 03 March 2016 calling upon the
respondent to comply with the applicant's request made pursuant
to
Rule 35(12) and (14), to make available, the written agreement
between the parties entered into during June 2011 or thereafter,
upon
which the respondent's claim is based.
[4]
The crux of the Applicant's case is set out in paragraph 11 of its
founding affidavit, which reads as follows:
[9]
The respondent alleges that on 29 June 2011, the MOA was extended for
two (2) years on same terms. In this regard, the respondent
annexes a
letter signed by the acting Municipal Manager at the time as annexure
"C".
[10]
The relevant portion of annexure "C" reads:
"It is with pleasure
that we inform you that the municipality has decided to extend your
contract with two years for implementation
of the above programme.
The contract will be administered as per the original contract that
has been signed between yourselves
and the municipality.
Please note that
the contract will be effective upon signing
a
contract
document and the acceptance of this appointment by the contractor..."
[My emphasis]
[11]
In paragraph 3.2 of the Particulars of Claim, the Respondent
initially pleaded that:
"The parties
extended the abovementioned agreement on the same terms and
conditions in June 2011 for two years and the extension
of the
contract was confirmed in writing on behalf of the Defendant, by Mr
Mnisi, the acting Municipal Manager on 29 June 2011.
A copy of the
written confirmation of the extension is attached hereto, marked
annexure
"C'"'.
[12]
The Respondent after the delivery of the Rule 30A notice amended par
3.2 of its particulars of claim, after the amendment it
reads as
follows:
"The parties orally extended the abovementioned
agreement on the same terms and conditions in June 2011 for two years
and the
extension of the contract was confirmed in writing on behalf
of the defendant, by Mr Mnisi, the acting Municipal Manager on 29
June 2011. A copy of the written confirmation of the extension is
attached hereto, marked as annexure
"C"".
[13]
Rule 35(12) of the Rules provides as follows:
"Any party to any
proceeding may at any time before the hearing thereof deliver
a
notice as near as may be in accordance with Form 15 in the First
Schedule to any other party in whose pleadings or affidavits
reference
is made to any document or tape recording to produce such
document or tape recording for his inspection and to permit him to
make
a
copy or transcription thereof. Any party failing to
comply with such notice shall not, save with the leave of the court,
use such
document or tape recording in such proceeding provided that
any other party may use such document or tape recording."
[14]
Rule 35(14) provides as follows:
"After appearance
to defend has been entered, any party to any action may, for purposes
of pleading, require any other party
to make available for inspection
within five days
a
clearly specified document
or
tape recording in his
possession
which
is
relevant to
a
reasonably anticipated
issue
in the action and to allow
a
copy or transcription to be made thereof"
[15]
It is clear from a perusal of both the original particulars of claim
and the subsequent amendment that the Respondent does
not rely on
a written agreement of the extension of the agreement.
Respondent clearly states that the written agreement
was entered into
during June 2011. That agreement was then orally extended and the
extension was according to Respondent confirmed
in a letter dated 29
June 2011 which was attached to the papers as Annexure "C".
Consequently the Respondent did not
rely on a written agreement and
it was not possible to comply with the rule 35(12) and
(14) notices as no such document
exists.
[16]
It is therefore abundantly clear that the Respondent can't discover a
document that does not exist. Consequently there is no
merit in the
application.
[17]
The Applicant, only in the heads of argument, raised some
further issues and made the submission that annexure "C"
is
not a contract and submitted that the Respondent's claim ought
to be struck out because there was not compliance with
the contents
of annexure "C" and that the Respondent's claim is
therefore without any legal foundation. The aforesaid
was never part
of the Applicant's case and is not raised anywhere on the
papers. This argument maybe raised by way of an
exception, but this
is not the Applicant's case before this Court and can't be raised or
argued on the papers before me.
[18]
The Respondent proceeded to ask for attorney and client costs if the
application is dismissed. This is primarily based on the
fact that
Applicant was aware of the fact that there is no written agreement to
discover. I am of the view that in the light of
all the circumstances
such an order is appropriate. The particulars of claim after the
amendment at the very least, was abundantly
clear that no written
agreement existed to discover. Despite the fact the Applicant
persisted with this application.
[19]
Consequently I make the following order:
19.1
The application is dismissed.
19.2
The Applicant to pay the costs of the application on an attorney and
client scale.
_____________________________
TOLMAY
JUDGE
OF THE HIGH COURT