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[2016] ZAFSHC 111
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Babereki Consulting Engineers CC v Minister: Government of the Republic of South Africa: Department of Water and Sanitation and Others (890/2016) [2016] ZAFSHC 111 (19 May 2016)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION,
BLOEMFONTEIN
Case
number: 890/2016
In
the matter between:
BABEREKI
CONSULTING
ENGINEERS
CC
Applicant
and
THE
MINISTER: GOVERNMENT OF
THE
REPUBLIC OF SOUTH AFRI CA:
DEPARTMENT
OF WATER
AND
SANITATION
1st Respondent
VHARANANI
PROPERT
I
ES
(PTY)
LTD
2nd
Respondent
THE
MINISTER: GOVERNMENT OF THE
REPUBLIC
OF SOUTH AFRI CA: DEPARTMENT
OF
HUMAN
SETTLEMENTS
3rd
Respondent
BLOEMWATER
4th Respondent
THE
PREMIER: FREE STATE PROVINCIAL
GOVERNMENT
5th Respondent
NKETOANA
LOCAL
MUNICIPALITY
6th Respondent
SETSOTO
LOCAL
MUNICI
PALITY
7th Respondent
TOKOLOGO
LOCAL
MUNICIPALITY
8th Respondent
CORAM:
PHALATSI, AJ
HEARD
ON:
15 APRIL 2016
JUDGMENT
BY:
PHALATSI, AJ
DELIVERED
ON:
19 MAY 2016
[1]
The applicant, Babereki Consulting Engineering CC (BABEREKI),
approached this court on an urgent basis and on 15 March 2016,
CHESIWE AJ, granted the following order:
"1.
The applicant's non-adherence to this court's rules related to time
periods and service is condoned, and the application
is heard as an
urgent application in terms of Rule 6(12).
2.
Pending the final outcome of the proceedings envisaged
in prayer 3
below, the first and second respondents are interdicted and
restrained from in any way further implementing an agreement
concluded between them in or about
October 2015,
and in terms
of which the second respondent is to attend to any work related to
the construction of any water borne toilet structures
in the
following towns and their surrounds:
2.1
The towns of Reitz, Petrus Steyn, Lindley and Arlington falling in
the
jurisdictional area of the sixth respondent;
2.2
The towns of Ficksburg, Clocolan and Senekal in the
jurisdictional area of the seventh respondent;
2.3
The town of Hertzogville in the jurisdictional area of the eighth
respondent.
3.
The order contained in prayer 2 above is to serve as an
interim
interdict with immediate effect, pending the finalisation of an
action or application to be instituted by the applicant
within 15
days after the date of this order and in terms of which the
applicant
is to seek declaratory or such other relief as advised, as to the
contractual rights of all the parties
vis
a
vis
each
other.
4.
Should the applicant fail to institute the judicial process
as
contemplated in prayer 3 above within the stipulated time period, the
interim order shall lapse and be of no force and effect.
5.
The cost of this application is to be costs in the proceeding
contemplated in prayer 3. Should the applicant fail to institute the
said proceeding within the time periods stipulated, the applicant
is
ordered to pay the costs of the this application.
6.
Alternatively to prayer 5 above, the first and second
respondents to
pay the costs of this application."
[2]
The second respondent, Vharanani Properties (Pty) Ltd
(VHARANANI), in turn also approached this court on an urgent basis,
in terms of the provisions of Rule 6(12) (c), for reconsideration of
the application for an interim interdict.
[3]
The application for reconsideration was heard on 15 April 2016, and I
granted the following order:
"1.
Application for an interim interdict is dismissed with costs.
2.
Costs include the costs of two cousel."
I
did not give reasons for the order. I decided that the party who
seeks the reasons for the order, can request the reasons in terms
of
Rule 49 (1) ( c ) of the Uniform Rules. The applicant has filed the
request for reasons. I deliver this judgment in compliance
with the
said request.
[4]
The first issue which was to be decided by the court, was whether
Vharanani had complied with the provisions of Rule 6 (12)
(c), in
that the order of Chesiwe AJ was granted in its absence. It is common
cause that when the matter was argued and the order
granted by
Chesiwe AJ, Vharanani was neither present in court, nor represented.
The order was therefore granted against it in its
absence. It is the
case of Vharanani that Babereki, the applicant, did not serve the
application on it and it therefore did not
receive notice of the
application and that it was going to be heard on the 15th of March
2016. The two documents that served before
court in respect of notice
to Vharanani, come from the sheriff of Sandton South. They
state as follows:
"NON
-
SERVICE
Notice
of
Motion
with
Founding
Affidavit
and
Annexures
On
the 25 February 2016 at 13:55 at 5th Fredman Towers, 13th Fredman
Drive, Sandton, the Notice of Motion with Founding Affidavit
and
Annexures could not be SERVED as the premises at given address was
found vacant and locked.
SERVICE
Notice of Motion with Founding Affidavit and Annexures
On
the 9 March 2016 at 10:08 at 5th Fredman Towers, 13th Fredman Drive,
Sandton, being the principal place of business of the 2nd
respondent
Vharanani Properties (Ply) Ltd. I duly served a copy of the Notice of
Motion with Founding Affidavit and Annexures by
affixing copies of
the abovementioned documents to the outer and principal door of the
said premises. No other services possible
after diligent search at
the given address. Rule 4(1)(a)(v).
Note:
Premises is vacant & locked."
Rule
6(12) (c) of the Uniform Rules provides as follows:
"A
person against whom an order was granted in his absence in an urgent
application may by notice set down the matter for reconsideration
of
the order. "
It
was initially contended on behalf of Babereki that the address
mentioned in the sheriif's documents is the address that Vharanani
chose as its
domicil/ium
in its contract with the Department
of Water and Sanitation (VHARANANI CONTRACT) and therefore service on
the address is good service
even though the premises were found
vacant and locked. It is common cause that Babereki is not a party to
the Vharanani contract.
It is trite that a
domicilium
clause
in a contract is binding only as between the contracting parties. See
AMCOAL
COLLIERS
LTD v.
TRUTER
1990
(1) SA
1
(A).
In
the
light hereof, this argument was consequently abandoned,
and it became common cause that Vharanani did not receive notice of
the
application and it was therefore entitled to apply for
reconsideration of the order in terms of Rule 6(12)(c).
[5]
The facts relied upon by Babereki in its application for an interim
interdict against the respondents, are briefly, the following:
That
on the 1st of November 2013, Babereki and Bloemwater concluded a
written agreement (BABEREKI CONTRACT), in terms of which Babereki
was
appointed as a Turnkey Contractor for supervision and implementation
of engineering services as well as the physical construction
of
identified toilet structures. It is further alleged that Babereki was
appointed to construct the toilet structures in the Nketoane,
Setsoto
and Tokologo Muncipal areas. On 21 July 2015, Babereki
submitted an invoice in
the amount of R50 196
079.50 to Bloemwater, which to date Bloemwater has failed to pay.
Bloemwater, in a letter to Babereki dated 4 November 2015,
stated that it would pay the said amount upon receipt of sufficient
funds from the Department of Water and Sanitation. During August
2015, Babereki abandoned the site because of non payment of its
invoice and referred the matter for arbitration in terms of the
contract. On the 10th of February 2016, Babereki received a call
from
a Municipal official that the works were continuing on the
construction site. On further investigation, it emerged that the
Department of Water and Sanitation had concluded an agreement with
Vharanani Properties (Pty) Ltd during October 2015. In terms
of the
new contract, Vharanani was appointed as a turnkey contractor,
under the bucket eradication programme, to attend to
construction and
planning (including design through an appointed engineer) for toilets
in the Kopanong, Tokologo, Setsoto and Nketoane
areas. Clause 2.6 of
the said contract states as follows:
"2.6
The following is a list of projects to be implemented by
the SERVICE
PROVIDER:
PROVINCE
MUNICIPALITY
PROJECT
TOTAL UNITS
Free State
Kopanong
Fauresmith
Reddersburg
33
205
Tokologo L.M
Dealesville
1290
Boshof
300
Malebogo/
1020
Hertzogville
Setsoto L.M
Ficksburg
1469
Senegal
2913
Clocolan
3379
Nketoana
Petrus Styn
960
Lindley
900
Arlington
1192
Reitz
739
TOTAL UNITS
15145
It
is further contended that the said contract infringes upon the
rights Babereki have
in
contract to the
same performance, as it relates to the
provision of the same services
on the same areas.
[
6]
APPLICABLE
LEGAL
PRINCIPLES
The
applicant for an interim interdict is required to satisfy the
following requirements to justify the granting of same:
1.
A
prima
facie
right.
2.
A well grounded apprehension of irrepairable harm.
3.
A balance of convenience.
4.
That he has no alternative remedy.
[7]
APPLICATION
OF THE
LEGAL
PRINCIPLES
TO THE FACTS
Prima
facie
right
It
is the case of Babereki that the contract between the Department of
Sanitation and Vharanani infringes upon the contractual rights
that
Babereki has against the Department and Bloemwater. The contract
between the Department and Vharanani clearly stipulates the
services
that Vharanani has to provide as well as the areas, towns and total
units in which such services have to be rendered,
as set out in
paragraph
2.6
of the said paragraph, which is quoted in full in paragraph
5
hereof. It was therefore incumbent upon Babereki to establish that in
terms of its contract with Bloemwater, they also have to
provide the
same services in the same areas in respect of the same units as those
provided by Vharanani.
The
contract between Babereki and Bloemwater does not specify the
Municipalities in which Babereki has to render the services.
In the
definitions of the said contract, "Municiapality" is
defined as meaning municipalities as referred to in the scope
of
works. The scope of works referred to in the contract is not attached
to the contract itself. The said document is also
not attached to the
founding affidavit. It is therefore not possible,
ex
facie
the contract, to determine the areas or the municipalities in
which Babereki was contracted to provide the services. During
argument,
I was referred to the proposal by Babereki to Bloemwater,
which forms part of the agreement in terms of the definition of the
term
"agreement" in the contract. The said document
however, does also not stipulate the areas, towns or
municipalities
in which the services are to be redendered. In dealing
with the contract between Babereki and Bloemwater, the following is
said
in paragraph 20.2.8 of the founding affidavit: "Most
relevant to this proceedings, Babereki was appointed to construct the
toilet structures in the Nketoana, Setsoto and Tokologo Municipal
areas. All the reference documents (the scope of the works etc.)
were
appended". I have already stated that the scope of works is not
attached to the papers and that, other than this bear
averment, no
documentation was attached to show that Babereki was indeed appointed
to construct toilet structures in the said municipalities.
The claim
of Babereki against Vharanani is based on an alleged interference
with Babereki's contractual rights. It is imperative
that Babereki
has to attach all documents from which its contractual rights
emanate. This it has failed to do, as I have shown
above. I therefore
find that Babereki has failed to establish a
prima facie
right
which would entitle it to be granted an interim interdict against the
respondents. In the light of this finding, I do
not find it
necessary to deal with the other requirements for an interim
interdict. On this ground alone, the application for an
interim
interdict should be dismissed.
[8]
The next question to be decided is the one of costs, as Vharanani
asked for the costs of two counsel. In its opposing
affidavit
to the application for reconsideration, Babereki refers to the
Vharanani contract as a Billion Rand construction
contract.
This clearly signifies how much was at stake for
Vharanani for the matter
to be properly handled.
Vharanani also states that it has ongoing total monthly expenses
attendant upon the servicing
of its contract with the Minister in
excess of R9.5 million. This project also affects large communities
that have to be provided
with running water toilets. On the basis of
these considerations, I find that in this matter, Vharanani is
entitled to the costs
of two counsel.
[9]
In the result, the following order is made:
1.
The application for interim interdict is dismissed.
2.
The Applicant, Babereki Consulting Engineers is ordered to pay the
costs of the second Respondent (Vharanani
Properties) which costs
include the costs of two counsel.
_________________
N.W.
PHALATSI, AJ
On
behalf of applicant:
M Khang
Instructed by:
Mphafi Khang Inc.
Bloemfontein
On
behalf of 2nd respondent : Advocate GI HOFFMAN SC and Adv. TL
MAROLONG
Instructed by:
Ramabulana Attorneys C/O
Bezuidenhouts
BLOEMFONTEIN
/PC