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[2016] ZANCHC 68
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Millennium Waste Management (Pty) Ltd v Sol Plaatjie Municipality (1585/2008) [2016] ZANCHC 68 (15 December 2016)
HIGH
COURT OF SOUTH AFRICA
NORTHERN
CAPE DIVISION, KIMBERLEY
Reportable:
NO
Circulate
to Judges: NO
Circulate
to Magistrates:NO
Circulate
to Regional Magistrates: NO
CASE NO:
1585/2008
In
the matter between:
MILLENNIUM
WASTE MANAGEMENT (PTY) LTD
Applicant
AND
SOL
PLAATJIE
MUNICIPALITY
Respondent
Coram: Lever AJ
JUDGMENT ON APPLICATION
FOR LEAVE TO APPEAL
L
Lever AJ
1.
This
is an application for leave to appeal a judgment where I ordered
absolution from the instance with costs in favour of the defendant.
The claim arises out of a tender issued by the defendant municipality
for the operation of the Kimberley and Ritchie waste disposal
sites
and a second component relating to the design work required for the
said landfill sites to comply with the permit issued
by the
Department of Water Affairs and Forestry.
2.
I
found that despite the denials of the defendant, that the plaintiff,
being the applicant herein, had established that a tender
process had
taken place. That the then Municipal Manager had issued a letter in
favour of the plaintiff awarding the plaintiff
the tender. The
relevant letter is annexure “B” to the plaintiff’s
Particulars of Claim. Also, that it had established
that it had done
certain work in relation to such tender.
3.
The
difficulty arises in that ‘part C’ of the tender document
contains the following provision:
“
3.12
Finalisation of the Contract
·
Discussions
to reach agreement on all points and sign a contract shall be held at
the following address…
·
Discussions
will include the content of the proposal, the proposed work plan,
budget staffing and any suggestions made by the firm
to improve the
Required Services. The Council and the firm will then work out an
agreed final Terms of Reference and staffing.
The agreed work plan
and final Terms of Reference will then be incorporated into the
“Required/Description of Services”
and form part of the
contract.
·
…
·
…
·
The
discussions will conclude with a review of the draft form of the
contract. The Sol Plaatjie Municipality and the firm should
then
initial the agreed contract. If the parties fail to reach an
agreement, the Sol Plaatjie Municipality will invite the firm
that
received the second highest score to enter into discussions.”
4.
The
plaintiff in its Particulars of Claim originally pleaded to the
effect that the tender was a unitary whole to the extent that
it even
claimed the fees of the design consultants as part of its contractual
damages in its second claim. During the course of
the trial the
plaintiff amended its Particulars of Claim to exclude this amount.
5.
The
evidence led by the plaintiff established that there were two
components to the tender, namely the day to day running of the
Kimberley and Ritchie landfill sites on the one hand and the
technical design work on the other. However, despite amendments to
its Particulars of Claim, plaintiff never pleaded that ‘part C’
of the tender document applied exclusively to the design
component of
the tender. Plaintiff also never led evidence to this effect.
Plaintiff also never pertinently raised this during
its
cross-examination of the defendant’s witnesses. This argument
was raised for the first time by the plaintiff in the final
argument
presented on its behalf at the trial.
6.
Even
in its pleadings as they stand today plaintiff still has components
of ‘part C’ of the tender pleaded as the basis
for its
claim both under the contractual claim and in respect of the
contractual damages claimed. In this regard, I refer to paragraphs
4,
5, 6 and 7 of the plaintiff’s Particulars of Claim. In these
circumstances the argument that ‘part C’ of the
tender
document only applies to the design component of the tender and
plaintiff’s Particulars of Claim are mutually destructive.
7.
The
fact that I found that the plaintiff had established that a tender
had been awarded and that it had established that it had
done certain
work, taken together with the content of the plaintiff’s
Particulars of Claim, which includes important aspects
of ‘part
C’ of the tender document and plaintiff’s argument raised
for the first time at the conclusion of the
trial that ‘part C’
applies only to the design component of the tender, is the context
within which I awarded the defendant
absolution from the instance
with costs.
8.
Plaintiff
filed a Notice of Appeal on the 9 May 2016. This document contains
four grounds of appeal set out in five pages. It will
serve no
purpose to set out this document verbatim herein. In any event, only
one substantive ground was pursued when the matter
was argued. This
was to the effect that the pleadings were for the court and not the
other way round, that the evidence established
the plaintiff’s
case and that there was no prejudice to the defendant. Further, that
plaintiff’s Particulars of Claim
were open to interpretation.
That in the circumstances, I ought to have found for the plaintiff.
9.
In
support of this argument, Mr Bruwer, who appeared for the plaintiff
throughout these proceedings, referred the court to the
dicta
of Innes CJ in the case of ROBINSON v RANDFONTEIN ESTATES G.M. CO.
LTD.
[1]
“
The
object of pleading is to define the issues; and parties will be kept
strictly to their pleas where any departure would prejudice
or would
prevent full enquiry. But within those limits the Court has a wide
discretion. For pleadings are made for the Court, not
the Court for
the pleadings. And where a party had every facility to place all the
facts before the trial Court and the investigation
into all the
circumstances has been as thorough and as patient as in this
instance, there is no justification for interference
by an appellate
tribunal, merely because the pleading of an opponent has not been as
explicit as it might have been.”
[2]
10.
In
similar vein Mr Bruwer referred to the case of SHILL v MILNER
[3]
and an unreported judgment of Boruchowitz J in the matter of SUBURBAN
SERVICES (PTY) LTD v RODNEY WOLMER
[4]
.
All of which were cited by Mr Bruwer on behalf of the plaintiff as
authority for the proposition where the evidence establishes
a claim
and there is no prejudice to the other party the court ought to
recognise and give effect to such claim.
11.
Mr
Bruwer argued on behalf of the plaintiff that the evidence of Mr
Gouws, both in chief and under cross-examination, establishes
that
the tender has two parts and that the part that was awarded to the
plaintiff was the part that related to the day to day management
of
the Kimberley and Ritchie landfill sites. This is true as far as it
goes, but it can take the matter no further.
12.
Mr
Van Tonder, on behalf of the defendant, argued that the issue of
‘part C’ only being applicable to the design phase
of the
tender was not raised in the pleadings, it was not pertinently raised
in the evidence of the plaintiff’s witnesses
and it was not
pertinently put to the defendant’s witnesses when they were
cross-examined.
13.
In
these circumstances, Mr Van Tonder submitted that the defendant would
be prejudiced if the plaintiff was not confined to its
Particulars of
Claim. Expanding on this argument Mr Van Tonder indicated that if the
contention that ‘part C’ of the
tender document only
applied to the design phase was pertinently pleaded by the plaintiff,
the defendant would have been afforded
the opportunity to prepare its
case accordingly. It was further submitted that defendant was not
afforded this opportunity.
14.
Similarly,
if this contention had come out in the evidence, the defendant may
have been prejudiced but it may have been afforded
an opportunity to
deal with both the prejudice and the contention that ‘part C’
of the tender document only applied
to the design phase of the
tender. This contention never came out during the evidence stage of
the trial. It was first introduced
in the final arguments at the
trial. In these circumstances, it was submitted by Mr Van Tonder that
the defendant would be prejudiced
if the plaintiff was not confined
to its pleadings.
15.
In
dealing with a further contention made by Mr Bruwer that the
defendant’s case was that there was no agreement and did not
relate to the contents of the agreement, Mr Van Tonder submitted that
it made no difference, the defendant was still not afforded
the
opportunity of dealing with the case the plaintiff now seeks to rely
on. Accordingly, defendant would be prejudiced if plaintiff
were to
be allowed to conduct its case in this way.
16.
Mr
Van Tonder, relying on the authority of Imprefed (Pty) Ltd v National
Road Commision
[5]
, submitted
that a party relying on a contractual claim or a claim for
contractual damages needs to base such claim on the provisions
of the
contract.
[6]
That the object of
pleading “…is to ascertain definitely what is the
question at issue between the parties; and this
object can only be
attained when each party states his case with precision.”
[7]
That the degree of precision depends upon the circumstances of each
case.
[8]
17.
Also
on the authority of the Imprefed case, Mr Van Tonder argued that the
plaintiff ought not to be allowed to shift the ground
upon which its
case was based whenever the shoe pinches.
[9]
Finally, Mr Van Tonder argued that plaintiff, in the evidence it had
adduced, had not established the case that it pleaded in paragraph
6
of its Particulars of Claim, which reads as follows:
“
6.
The plaintiff was the successful tenderer whereafter discussions took
place and after discussions and on the
25 July 2007 the defendant in
terms of annexure “B” advised the plaintiff that:
‘
I
have pleasure in advising you that your offer submitted in response
to the abovementioned tender has been accepted. Council’s
representative for this work will be in contact with you shortly to
finalise logistical arrangements for the execution of this
contract.’”
18.
Mr
Van Tonder argued specifically that the evidence adduced by the
plaintiff did not establish that discussions contemplated took
place
before the letter of the 25 July 2007, being annexure “B”
to the Particulars of Claim, was written and sent.
According to Mr
Van Tonder, this is where the shoe began to pinch the plaintiff and
this is what the argument that ‘part
C’ only applied to
the consultants in the design component of the tender, was designed
to alleviate.
19.
Mr
Van Tonder is correct in his assertion that the plaintiff failed to
establish in its evidence that the said discussions took
place as
pleaded by the plaintiff.
20.
In
assessing these arguments from both the plaintiff and the defendant,
on the one hand it must be remembered that the applicability
of ‘part
C’ of the tender document to the design phase only, emerges
from a proper reading of the tender document itself.
On the other
hand, the fact that the plaintiff’s Particulars of Claim,
clearly and evidently relies on clauses that only
appear in ‘part
C’ of the relevant tender document as a basis for its claim,
must have misled the defendant and focused
its attention away from
the fact that ‘part C’ of the said tender document only
applied to the Consultants for the
design phase.
21.
I
do not believe that plaintiff purposely set out to mislead the
defendant in that way. I believe that plaintiff only came to
appreciate
the relevance of how ‘part C’ of the tender
document was drawn up after the evidence in the trial was led and
before
final arguments in the trial.
22.
However,
the fact remains that the defendant did not have an opportunity to
investigate and/or consider this aspect when: taking
instructions
from the defendant; considering its own pleadings; consulting its own
witnesses; considering what evidence would be
relevant to place
before the trial court; considering how to approach the
cross-examination of the plaintiff’s witnesses;
and the actual
cross-examination of the plaintiff’s witnesses.
23.
In
regard to the final submission made by Mr Bruwer that the plaintiff’s
pleadings were open to interpretation and another
court might
reasonably interpret the plaintiff’s Particulars of Claim
differently, Mr Van Tonder submitted that there was
simply no room
for a different interpretation of paragraphs 4, 5, 6 and 7 of
plaintiff’s Particulars of Claim. After considering
the
submissions made by both Mr Bruwer and Mr Van Tonder on this aspect I
do not believe that there is any reasonable prospect
that another
court might find the said paragraphs of the plaintiffs Particulars of
Claim to be open to an alternative interpretation.
24.
I
found in my judgment, the subject of this application, that the
plaintiff was bound by its pleadings as they stood. Having regard
to
the prejudice the defendant would suffer as outlined by Mr Van
Tonder, I am constrained to find that there is no reasonable
prospect
of another court finding that the defendant was not prejudiced in the
said circumstances. Accordingly, it follows that
there is no
reasonable prospect of another court finding that I ought to have
exercised my discretion to allow the plaintiff to
establish its claim
by virtue of the argument raised after the evidence was closed by
both plaintiff and defendant, that ‘part
C’ of the tender
document only applied to the design phase of the said tender.
Further, it follows that in the circumstances,
there is no reasonable
prospect that another court would find for the plaintiff.
25.
In
these circumstances, I must dismiss the application for leave to
appeal with costs.
Accordingly,
the following order is made:
1)
The
application for leave to appeal is dismissed with costs.
______________
Lawrence
Lever
Acting
Judge
Northern
Cape Provincial Division, Kimberley
On
behalf of Applicant :
Mr Bruwer
Duncan
& Rothman
On
behalf of Respondents:
Mr Van Tonder
Van
Der Wall & Partners
Date
of hearing:
26 July 2016 2016
Date
of Judgment:
15 December 2016
[1]
1925 AD 172.
[2]
Above at p 198.
[3]
1937 AD 101
at 105.
[4]
A judgment in case number 17201/2013 that appears
to have been handed down in the Gauteng South Division, Johannesburg
on the
20 February 2015.
[5]
[1993] 2 All SA 179
(A) also reported at 1993 (3)
SA 94 (AD).
[6]
Imprefed above at p 182.
[7]
Imprefed quoting ‘Odgers’ “
Principles
of Pleading and Practice in Civil Actions in the High Court of
Justice”’
(22
nd
ed) 113’ at 188.
[8]
Imprefed above at p 188.
[9]
Imprefed above at p 212.