About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2016
>>
[2016] ZAGPPHC 440
|
|
C15 Protection Services CC v Northwest Transport Investments (Soc) Ltd (9825/16) [2016] ZAGPPHC 440 (3 June 2016)
REPUBLIC
OF SOUTH AFRICA
IN THE
HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
DATE:
3/6/2016
CASE
NUMBER: 9825/16
(1)
REPORTABLE: NO
(2) OF
INTEREST TO OTHER JUDGES: NO
In the matter between:
C15 PROTECTION
SERVICES
CC APPLICANT/PLAINTIFF
and
NORTHWEST TRANSPORT
INVESTMENTS (SOC) LTD RESPONDENT/DEFENDANT
JUDGEMENT
K
U
B
U
S
H
I
,J
[1]
This is an application for summary judgment in a claim in which the
plaintiff alleges to have entered into a written agreement
of
professional service with the defendant. In terms of this service
level agreement, the plaintiff would render forensic investigation
services to the defendant. The plaintiff would do that by
investigating certain allegations of acts of misconduct,
maladministration
and corruption within the defendant by certain of
its officials. The crux of the plaintiff's claim is that the
defendant has failed
to comply with some of its obligations in terms
of the agreement by failing to make payment of invoices rendered to
it by the plaintiff
in respect of the services already rendered.
[2]
The defendant in opposing the summary judgment application has raised
the following defences:
i.
The agreement in question is
void ab initio
in that the
accounting authority ignored, before the agreement was entered into,
certain legal prescripts relating to public procurement,
namely, s
217 of the Constitution read with the provisions of the PFMA, PPPFA,
BBEEE and the Treasury Regulations; and
ii.
When leave is granted, the defendant will launch two counterclaims
which are for:
a.
A declarator that the contract is
void ab initio;
and
b.
The review of the accounting authority's decision and set the
agreement aside.
[3]
In argument before me the plaintiff's counsel submits that the
defendant has no defence in law and has entered appearance to
defend
in order to delay the matter. The contention is that the appointment
of the plaintiff as a service provider for the defendant
was done by
Adv K G Mapotse in his capacity as the accounting authority of the
defendant; and such a decision, according to counsel,
amounts to an
administrative action. When an administrative action has been
performed it is of force and effect until set aside
by judicial
review. The argument on behalf of the plaintiff is that since there
is an existing administrative action taken by the
accounting
authority which the defendant claims to be illegal, the defendant
should have applied for the review of that decision.
There is no
indication in the defendant's defence that it has applied or intends
to apply for a review of the decision taken by
the accounting
authority as such its defence must fail.
[4]
A further submission by the plaintiff's counsel is that the counter
claim will also not stand since the defendant has not applied
for the
review of the accounting authority's decision to appoint the
plaintiff as a service provider.
[5]
The defendant's counsel on the other hand submits that the defendant
has in its defence raised facts which if proved at the
trial will
constitute a defence and should as such be afforded an opportunity to
defend the matter.
[6]
Both counsel referred me to the following judgments:
Oudekraal
Estates (pty) Ltd v City of Cape Town and Others
2004 (6) SA 222
(SCA) at para 26 and
Member of the Executive Council for Health,
Eastern cape and Another v Kirkland Investments (Pty) Ltd
[2014)
ZACC 6 from para 62.
[7]
It is trite that an affidavit opposing summary judgment must depose
to facts that if accepted as the truth, or proved at the
trial, with
admissible evidence, would constitute a defence to the plaintiff's
action.
[1]
[8]
Having extensively studied the two judgments,
Oudekraal
and
Kirkland,
to which the parties have referred me to, I am of
the view that the defendant has raised a
bona fide
defence.
The facts the defendant has raised in its defence, if proved at the
trial, will constitute a defence to the plaintiff's
action. The
defendant must, therefore, be granted leave to defend this action.
[9]
I do not find it necessary to deal with the issues raised by the
parties in their respective heads of argument and/or oral argument
in
court as these are issues that require to be dealt with at the trial.
[10]
In the circumstances I make the following order:
1.
The application for summary judgment is dismissed.
2.
The defendant is granted leave to defend this matter.
3.
Costs are costs in the main action.
____________
E.M.KUBUSHI
JUDGE
OF THE HIGH COURT
APPEARANCES:
HEARD ON
THE :27
MAY 2016
DATE OF
JUDGMENT :03
JUNE 2016
APPLICANT'S
COUNSEL :ADV.
P FERREIRA
APPLICANT'S
ATTORNEYS :DM
GLOBAL LEGAL PRACTICE
RESPONDENTS'
COUNSEL :ADV.
T SEBEKO
RESPONDENTS'
ATTORNEY :RAMBEVHA
MOROBANE ATT.
[1]
See Maharaj v Barclays National Bank Ltd
1976 (1) SA 418
(A).