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[2016] ZAGPPHC 23
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Siyaya DB Consulting v Passenger Rail Agency of South Africa (77333/15) [2016] ZAGPPHC 23 (25 January 2016)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE
NO: 77333/15
DATE:
25 JANUARY 2016
In
the matter between:
SIYAYA
DB
CONSULTING
..............................................................................................
APPLICANT
And
PASSENGER
RAIL AGENY OF SOUTH
AFRICA
...................................................
RESPONDENT
JUDGMENT
KUBUSHI,
J
[1]
This is an opposed summary judgment
application. When I commenced with the drafting of this judgment I
noted that the applicant’s
heads of argument were not in the
file. Labouring under the impression that the heads of argument may
have been misplaced and/or
misfiled, I asked my clerk to request a
copy thereof from the applicant’s counsel. The applicant’s
counsel provided
me with the heads of argument but brought it to my
attention that at the time of the hearing of the summary judgment
application
there were no heads of argument prepared for the
applicant. I decided on that basis not to consider the heads of
argument provided
by the applicant’s counsel. I thank counsel
for having promptly responded to my request and apologise for the
inconvenience
occasioned.
[2]
The factual matrix to this application
is that the parties entered into an agreement whereby the applicant
was to perform services
of Technical Assistance for the Supervision
of National Resignalling Project, to the respondent. The agreement
was a fee-based
contract based on the fees related to the days
actually worked for the contract. Payment to the applicant for
services rendered
was to be made in terms of the conditions set out
in clause 23.2 of the agreement read with clause 26.5 thereof. In
terms of the
two clauses, the amounts invoiced by the applicant must
be consistent with timesheets which the applicant was required to
keep
and which were to be approved by the respondent’s
representative. The timesheets were to comprise the number of days
worked
as well as the performed activities. It was a further
requirement that, when a claim for payment is requested, the
applicant’s
invoices be accompanied by copies or excerpts from
such timesheets.
[3]
When the agreement expired, the parties
concluded a written addendum to the agreement, which, amongst others,
increased the scope
of work and the value of the agreement and
revised the completion date. The addendum also set out a payment
schedule, which according
to the respondent amended the payment
method set out in the main agreement.
[4]
Pursuant to the said agreement and
addendum thereto, the applicant issued summons against the respondent
claiming payment of the
sum of R8 374 893, 31 together with delayed
penalties in the sum of R27 144, 44, which amounts, according to the
applicant, were
due, owing and payable by the respondent to the
applicant. Subsequent to the respondent entering a notice to defend
the matter,
the applicant applied for summary judgment.
[5]
It is common cause between the parties
that subsequent to the respondent entering an appearance to defend,
it paid to the applicant
an amount of R2 987 740,22 being payment in
respect of invoice number B000027 attached to the particulars of
claim as Annexure
“POC6”. The said payment as such
reduced the amount claimed by the applicant in its particulars of
claim to the amount
of R5 387 153, 09 excluding the claim for delayed
penalties. The claim for the penalty interest was also later
abandoned by the
applicant. Accordingly, the summary judgment
application before me is only for the amount of R5 387 153, 09.
[6]
The applicant’s contention in the
summary judgment application is that the respondent has no bona fide
defence to its claim
and has entered appearance only to delay payment
of the amount claimed.
[7]
The respondent is opposing the
application and as per its answering affidavit, has raised several
points in limine. Before me, and
as per the respondent’s heads
of argument, only one point in limine was argued, namely, the
defective particulars of claim.
The contention by the respondent’s
counsel is that on this point alone the applicant’s application
for summary judgment
ought to be dismissed.
[8]
I must add that from the heads of
argument the respondent’s counsel argued two cases, namely case
number 77333/2015 and case
number 73934/2015. Only one case, case
number 77333/2015, was placed and argued before me.
IN
LIMINE
[9]
It is the respondent’s case that
the applicant relies on what it (the applicant) says is a fee-based
agreement, the fees of
which are based on the days actually worked by
the applicant. According to the respondent, in terms of clause 23.2
of the General
Conditions of Contract for Service (“the GCCS”)
contained in the agreement, the amounts invoiced by the applicant
must
be consistent with timesheets which the applicant is required to
keep and which must be approved by the respondent or its
representative.
The timesheets should also comprise the number of
days worked as well as the performed activities. Clause 26.5 of the
GCCS provides
that the applicant’s invoices have to be
accompanied by the copies or excerpts from the timesheets as stated
in clause 23.2.
[10]The
submission by the respondent is that the invoices on which the
applicant relies in its claim are not accompanied by the
timesheets
as contemplated in clause 23.2 of the GCCS. It is further argued that
the applicant does not allege in its particulars
of claim that its
invoices are consistent with the timesheets approved by the
respondent or its representatives. The applicant’s
claim cannot
be made, so the argument goes, if there are no timesheets which are
attached to the invoices and the particulars of
claim. In the
premises, the contention is that the applicant’s particulars of
claim do not disclose a cause of action, alternatively,
they are
vague and embarrassing and as such the summary judgment application
should be dismissed with costs. The respondent’s
counsel
referred me to two reported judgments of South African Bureau of
Standards v GGS/AU (Pty) Ltd
2003 (6) SA 588
(T) and Gulf Steel (Pty)
Ltd v Rack-Rite Bop (Pty) Ltd
1998 (1) SA 679
(O) wherein it was
stated that a summary judgment application may not be granted where
the pleadings are technically defective.
[11]In
counter argument, the submission by the applicant’s counsel is
that the applicant’s claim is not based on the
fee-based
contract but on an addendum to the initial agreement. And, in terms
of the addendum, payment due is based on a payment
schedule set out
in the addendum. The initial agreement having been amended by the
addendum, all its terms are, therefore, absolute
and cannot be relied
on.
[12]My
view is that from the reading of the applicant’s particulars of
claim it is clear that the applicant is relying not
on the initial
agreement between it and the respondent but on the addendum which is
the one that has been breached by the respondent.
Payment in terms of
the addendum is as per the payment schedule attached to the addendum
as Annexure “C”. The point
in limine can, thus, not
succeed.
MERITS
[13]On
the merits, the respondent denies the applicant’s contention
that it (the respondent) does not have a bona fide defence
to the
applicant’s claim and has entered appearance solely to delay
the finalisation of the applicant’s claim. The
respondent
raises a number of defences in its answering affidavit, but, before
me it only argued one defence which I shall deal
with hereunder.
[14]In
support of its assertion that it has a bona fide defence, the
respondent’s submission is that the purported extension
of the
agreement is constitutionally invalid and unenforceable in that, the
respondent being an Organ of State, is in terms of
s 217 of the
Constitution required to procure goods and services in a manner which
is transparent, competitive, cost-effective,
fair and equitable.
According to the respondent, the addendum upon which the applicant
relies was concluded for purposes of procuring
services which were
not provided for in the main agreement and such services ought to
have been procured in accordance with the
requirements of s 217 of
the Constitution - and this was not done.
[15]The
submission by the applicant’s counsel is that the respondent’s
defence is spurious and not bona fide and as
such the respondent
should not be granted leave to defend the matter.
[16]In
a summary judgment application, a respondent is required in
accordance with uniform rule 32 (3) to deliver an affidavit which
fully discloses the nature and grounds of its bona fide defence and
the material facts on which such defence is based. The respondent
is
not necessarily required to prove the defence. All it is required to
do is to set up facts which would constitute a defence
at the
trial.
[I]
[17]I
am sufficiently persuaded that the respondent has alleged facts which
are material and which if proved at the trial will constitute
a
defence to the applicant’s claim. The respondent should on the
premises be granted leave to defend the matter.
[18]It
is trite that where summary judgment application is refused costs are
ordered to be costs in the cause. I see no reason to
deviate from
this rule. Costs in this matter should be in the cause.
[19]
I as a result make the following order:
1.
The summary judgment application is
refused.
2.
The respondent is granted leave to
defend the matter.
3.
Costs are costs in the cause.
E.M.
KUBUSHI
JUDGE
OF THE HIGH COURT
WQDDWA
APPEARANCES
HEARD
ON THE
: 18 November 2015
DATE
OF JUDGMENT
: 25 January 2016
APPLICANT’S
COUNSEL
: Adv C Van Der Merwe
APPLICANT’S
ATTORNEY : Mathopo Attorneys
RESPONDENTS’
COUNSEL : Adv M. Maritz SC
RESPONDENTS’
ATTORNEY
: Diale Mogashoa Attorneys
[I]
See Breitenbach v Fiat SA (Pty) Ltd 1976 (2) 226 (T) and Maharaj v
Barclays National Bank Limited
1976 (1) SA
418
(A).