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[2016] ZAKZPHC 30
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Allenby Housing CC v MEC: Department of Health, KZN (10365/15) [2016] ZAKZPHC 30 (1 April 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU
NATAL PROVINCIAL DIVISION,
PIETERMARITZBURG
CASE
NO: 10365/15
DATE:
01 APRIL 2016
In the matter
between:
ALLENBY HOUSING
CC
..........................................................................................................
Plaintiff
Vs
MEC: DEPARTMENT
OF HEALTH,
KZN
..........................................................................
Defendant
JUDGMENT
Date of Hearing:
24 March 2016
Date delivered:
01 April 2016
BEZUIDENHOUT, AJ
1] Plaintiff has
applied for summary judgment against defendant for payment of the
amount of R520 358-84 and interest thereon from
the date of service
of summons at the legal rate of 9%p.a. to date of payment and costs
of suit.
1.1Defendant has
opposed the application and filed an opposing affidavit
2] it has been
submitted on behalf of plaintiff that the defences raised by
defendant are not real defences. It was submitted that
the complaint
regarding the differences in the invoices had been addressed by
subsequent invoices and that the amount claimed in
the latest invoice
that was sent after the letter of demand makes up the difference.
2.1 It was further
submitted that the defence raised that the park home did not comply
with the tender specifications was a bold
unsubstantiated averment.
3] It was submitted
on behalf of the defendant that it did raise a bona fide defence as
the plaintiff did not respond to a letter
requiring clarification of
an invoice. Further that he has not completed the work as per the
contract.
3.1 It was further
submitted that defendant is not expected to formulate its opposition
with the precision required of a plea and
that it fully disclosed its
defence and that the defendant should accordingly be granted leave to
defend.
4] Before
considering the affidavit filed by defendant it is necessary to
consider the principles which should be borne in mind
when assessing
defences raised in the said affidavit.
4.1 In Maharaj v
Barclays National Bank
1976 (1) SA 418
(A) it was held at 426b:
"All that the
court enquires into is (a) whether the defendant has fully disclosed
the nature and grounds of his defence and
the material facts upon
which it 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.”
Referring to the
word ‘fully’ it continued at 426d
“It connotes,
in my view, that, while the defendant need not deal exhaustively with
the facts and the evidence relied upon
to substantiate them, he must
at least disclose his defence and the material facts upon which it is
based with sufficient particularity
and completeness to enable the
court to decide whether the affidavit discloses a bona fide defence.
4.2 In Breytenbach v
Fiat South Africa Edms Bpk
1976 (2) SA 226
(T) it held at 228e:
"What I would
add, however, is that if the defence is averred in a manner which
appears in all the circumstances to be needlessly
bold, vague or
sketchy, that will constitute material for the court to consider in
relation to the requirements of bona fides.”
4.3 In Independent
Electoral Commission v Krans Ontspanningsoord
1997 (1) SA 244
(TPA)
it was heid at 249g
“Dit word
verder van die verweerder verwag om nie slegs die aard van sy verweer
uiteen te sit nie maar die gronde daarvan.
”
4.4 In Soorju v
Pillay
1962 (3) SA 906
(NPD) it was heid at 908g
"The defendant
must set out his defence honestly, disclose fully the nature and
grounds of it, and, in so far as it relies
upon facts, lay before the
court the facts which if proved, will be a good defence. ”
4.5 From the above
decisions it is clear that merely raising a defence is not sufficient
but that it should contain particularity
as to the material facts on
which it is based. These facts must indicate a reasonable possibility
that the defence may succeed
at trial. Merely indicating a defence
without setting out the grounds upon which it is based and the
material facts relating thereto
would accordingly be insufficient.
5] The defences
raised in the opposing affidavit were as follows:
5.1 In paragraph 14
of the opposing affidavit it sets out that the invoices which were
received were responded to by the project
leader who raised concerns
on the values versus the work done and refers to a letter of the
project leader, annexure “G”.
5.1.1 In the letter
he indicated that the invoices must be detailed as to what has been
charged for example clearing of site of
over growth. It also stated
"How one is to justify a claim for half a built unit will have
to be discussed with our management”
This relates to the first
invoice which was provided. It is apparent from what has been set out
that there was no dispute that
the amount was owing but merely that
it had to set out more detail.
5.2 In paragraph 16
it is alleged that there were charges for windows which the park home
did not contain. This was however rectified
by a subsequent invoice
from plaintiff where this was deleted.
5.3 In paragraph 19
of the affidavit it refers to a letter dated 31 July 2014 from
plaintiff demanding outstanding money. It is
alleged that this amount
differs from that which is claimed in the summons. It is apparent
that the difference relates to an invoice
which was provided during
December 2014 in the amount of R112 299-12 after the said letter had
been sent. This discrepancy is therefore
explained. I will however
deal with this invoice later.
5.4 In paragraph 22
it is stated that invoices can only be paid if the amounts claimed
are in terms of the approved tender. In paragraph
23 it is alleged
that it must be in accordance with the schedule of rates and the
schedule of rates is then annexed as annexure
“M”.
5.4.1 However, it
does not set out what prices were incorrect but merely attaches a
document containing various prices for a number
of items without
specifying which of the amounts were incorrect and
which of them did
not comply with the said specifications. It also fails to set out why
it is alleged that it was not done as tendered.
5.5 In paragraph 26
it is alleged that the park home was not built in compliance with the
tender document and could not be used
for its intended purpose.
5.5.1 Once again it
does not set out in what manner it did not comply with the tender
document and why it could not be used for
its intended purpose. It is
once again a bold unsubstantiated allegation without providing
material facts.
5.6 It is also
alleged that the park home had to be removed by plaintiff. Annexures
“O” and “P” however
refers to materials which
had to be removed and which was removed at a cost of R22 493-00. It
is alleged that plaintiff failed
to pay the said R22 493-00. This is
however not a defence to the claim
6] From what has
been referred to above it is apparent that no detail is provided as
to why it is alleged that the park home could
not be used, why it did
not comply with the tender documents and why the specifications were
not complied with. Further, although
the schedule of rates is
attached as annexure “M”, a document of approximately 14
pages, nowhere in the affidavit does
it set out which prices were not
complied with and in which manner the contract was not complied with.
6.1 There is an
allegation that the building was not built according to
specifications and cannot be used but no facts are provided
to
indicate what the basis therefore is. The allegation that it did not
comply is merely a bold allegation and it does not disclose
the
grounds upon which it is claimed that it is not in compliance with
the tender documents.
6.2 The opposing
affidavit accordingly does not disclose the nature and grounds of the
defence and the material facts upon which
it is based.
6.3 If a court has
to exercise its discretion in the defendant’s favour it must do
so on the basis of the material placed
before it and not on mere
conjecture or speculation.
See Soil Fumigation
Services v Chemfit Technical
2004 (6) SA 29
(SCA) at 39J-40A.
6.3.1 In the present
matter no material facts were placed before court and it is not for
this court to speculate as to what was
the non- compliance with the
tender documentation, specification and pricing which is not dealt
with in the opposing affidavit.
6.4 It is also not
stated in the affidavit why if plaintiff abandoned the site as is
alleged it is not entitled for payment for
the work done. If there
was such a clause in the agreement or if plaintiff was not entitled
to such payment one would have expected
this to be set out in the
opposing affidavit.
7] The letter of
demand which was sent to defendant on 31 July 2014 refers to three
invoices which amount to the sum of R408 059-72.
The last paragraph
of the said letter at page 62, annexure “L”, reads:
“Furthermore,
part of our invoices are for earthworks and siteworks and hereto the
site has been prepared to receive all the
structures.”
The fourth invoice
was only sent on 11 December 2014 approximately five months after
this letter of demand which I have just referred
to. This invoice was
in the sum of R112 299-12 and in the invoice, annexure "M”,
it refers to the fill and compacting
of layers and poisoning as wei!
as cutting existing banks for the erection of retainers, clearing the
site and removing of fences.
This would appear to be the work
referred to the in the last paragraph of annexure “L”. it
would therefore appear to
me that there is a dispute in this regard
when this invoice was only sent approximately five months later and
should have been
available prior to the erection of the park home.
Was it not included in the other three invoices as stated in annexure
“L”.
7.1 In my view, the
invoice dated 11 December 2014 in the sum of R112 299-12 should be
excluded.
8] The defendant has
failed to comply with Rule 32 in that it has not disclosed the
material facts it relies on. No bona fide defence
was therefore
raised.
I accordingly make
the following order:
1. Summary judgment
is granted against defendant in favour of plaintiff for:
1.1 payment of the
sum of R408 059-72;
1.2 interest thereon
at the legal rate of 9% p.a. from the date of service of summons to
date of payment;
1.3 Costs of suit
BEZUIDENHOUT, AJ
APPEARANCES
Date of Appeal:
24 March 2016
Date of Judgment:
01 April 2016
Counsel for the
Appellant: Mr A.J. Boulle
Instructed by:
Larson Falconer Hassan
Parsee Inc
c/o Robyn Wills
Attorney Suite 4, The Mews Redlands Estate Pietermaritzburg Tel:
033-3451383
Counsel for the
Defendant: Mr SH. Zondi
Instructed by:
State Attorney
c/o Cajee Setsubi
Chetty 195 Boshoff Street Pietermaritzburg Tel: 033-3456719 Ref: A.
Essa/ND