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[2016] ZAGPPHC 762
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City of Tshwane v Themba Consultants (Pty) Ltd (34336/2015) [2016] ZAGPPHC 762 (26 August 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
REPUBLIC
OF SOUTH AFRICA
Case
number: 34336/2015
DATE:
26 AUGUST 2016
In
the matter between:
CITY
OF
TSHWANE
................................................................................................................
Applicant
And
THEMBA
CONSULTANTS (PTY)
LTD
.............................................................................
Respondent
JUDGMENT
IN APPLICATION FOR LEAVE TO APPEAL
BRENNER
AJ
Date
of hearing: 10 August 2016
1.
This is an application by the applicant for leave to appeal against
my judgment granted on 6 June 2016.
2. For ease of
reference, I will refer to the applicant, (being the respondent in
the main application), the City of Tshwane Metropolitan
Municipality,
as “the COT”. I will refer to the respondent (being the
applicant in the main application), Themba Consultants
(Pty) Ltd, as
“Themba”.
3. The judgment
pertained to a claim by Themba for payment for a balance owing in
respect of engineering services rendered to renovate
roadworks and
pedestrian areas in the inner city of Tshwane, to facilitate safer
areas for vehicular and pedestrian movement, the
project being called
“Operation Reclaim". It was split into two amounts,
namely, the sum of R3 782 283,66, and the sum
of R1 109 715,79, plus
more interest and costs.
4. The notice of
application for leave to appeal differed in several respects from the
arguments raised in the heads of argument
produced at the hearing. I
was informed by Counsel for the COT at the hearing that certain
points which were not traversed in the
heads of argument but which
were dealt with in the notice were to be considered as being
abandoned. For the sake of convenience,
I had regard to the arguments
adduced in the heads of argument, and no objection was preferred by
Counsel for Themba.
5. I will proceed
to traverse ad seriatim the grounds advanced by the COT in the heads
of argument.
6. The first
ground pertained to the jurisdiction of this Court to entertain the
application in the first place. This because, according
to the COT,
Themba should have employed the dispute resolution mechanisms set out
in the tender document initially submitted by
Themba in 2012. I was
referred to clause C.1.2.1 relating to the General Conditions of
Contract set out in the tender document,
read with paragraph 5 of the
COT’s answering affidavit. I will quote verbatim from the
operative paragraphs of the COT’s
answering affidavit on the
subject:
“
4.
The applicant claims payment of certain amounts from the respondent.
The amounts so claimed are alleged to arise from a written
agreement
namely Contract CB117/2011 concluded between the applicant and the
respondent for the provision of professional engineering
services.
5.
Although the contract CB117/2011
provides for dispute resolution by adjudication in clause 12 of the
General Conditions of Contract
applicable to the contract, the
applicant acted prematurely by referring this dispute to court.
6.
Numerous requests by the respondent to
meet with the applicant and negotiate must be noted see letter dated
29 November 2014.
7.
The dispute, from the re
spondent
point of view, crystali
zes into two crisp
issues to wit: the liability to pay the applicant and the
determination of the amount so payable, if any.
8.
in the main, the respondent due to the
applicant’s unwillingness to meet the respondent; the
respondent does not know the
correct amount to be claimed and the
respondent denies that it is liable to pay any of the amounts claimed
by the applicant. In
consequence whereof, the respondent seeks an
order dismissing the application. ”
7. The above
assertions should be read with the following allegations made
subsequently in the same affidavit:
"42.
The applicant was awarded Tender CB117/2011 from the period starting
in April 2012 until 28 February 2015.
43.
The foresaid various appointments are,
for the purpose of determining the dispute in the current proceedings
irrelevant The only
appointment pertinent to these proceedings is the
appointment of 06 December 2013.
44.
The appointment is evidenced by annexure
FA 3.7 (and FA 3.8) to the founding affidavit. The essential terms of
which are clearly
articulate and to the extent that it may be
necessary to re-cast them, they are as follows:
44.1
The applicant is appointed to render
Professional Civil Engineering Services for the OPERATION RECLAIM
PHASE 1 WITHIN THE INNER
CITY OF TSHWANE;
44.2
Such services are to be rendered in
accordance with the Guidelines on Scope of Services and Tariff of
Fees for Registered Professional
Engineers, as stipulated in
Government Gazette no 34875 dated 20 December 2011;
44.3
The appointment was 3 fold:
44.3.1
Normal service;
44.3.2
Engineering Management Service
44.3.3
Principal Agent of the Client
44.4
The appointment further provides for the
appointment of other sub
consultants
to wit:
44.4.1
Electrical
Engineer;
44.4.2
Heritage Impact Assessment Practitioner;
44.4.3
Urban Designer; and
44.4.4
Traffic Engineer.
44.5
The fee payable is estimated to be an
amount of R8 290 400, the amount includes 10% for contingencies and
excludes value added tax
and is subject to the conditions of
contract, the discount offered and availability of funds; and
44.6
The fee estimate is based on the project
value of R33 871 155. The final fee is to be based on the final
project cost and is to
be calculated in accordance Guidelines on
Scope of Services and Tariff of Fees for Registered Professional
Engineers, as stipulated
in Government Gazette no 34875, Notice 206
of 2011.
45.
The Honourable Court will note that
Regulation 3 of Gazette no 34875, Notice 206 of 2011 details scope of
services and that regulation
3.2 sets out, with particularity the
nature and scope of the normal services.
46.
The nature and scope of services, as
provided for in Gazette no 34875, Notice 206 of 2011, were
incorporated into the appointment
by both the let
ter of 06
December 2013 and/
by operation of law.
46.
In as the
Engineering Profession Act 46 of 2000
provides, the
applicant’s entitlement to payment of the project fee is
dependent upon fulfilment of the obligations imposed,
at the bare
minimum, by
Regulation 3.2
of Gazette no 34875, Notice 206 of 2011.
48.
This is the case for the respondent. Has the applicant complied with
the provision of
Regulation 3
of Gazette no 34875, Notice 206 of
2011, so as to be entitled to payment of the project fee?"
8. I interpose to
mention that annexures FA3.7 and FA 3.8 are duplicates of the same
letter which is an appointment letter to Themba
dated 6 December 2013
for a project value of R8 290 400,00.
9. I refer to
clause C. 1.2.1 of the tender document, the heading being “GENERAL
CONDITIONS OF CONTRACT.” It reads:
“
The
general conditions of contract applicable to this contract shall be
the CIDB Standard Professional Services Contract (September
2005,
Second Edition of CIDB document 1015), read together with the
Variations, Additions to the Conditions of Contract as well
as the
Data provided by the employer. ”
10. The clause
proceeds to state that tenderers are required to obtain their own
copies of the document CIDB Standard Professional
Services Contract.
11. In argument I
was also referred to a page of the tender document which had a tick
mark aside a line item which provides for
the adjudication of
disputes in construction works where GCC is used.
12. Nowhere in
the papers produced by either party is there a copy of the CIDB
Standard Professional Services Contract, nor even
an extract
therefrom which outlines the alternative dispute resolution
procedures.
13. This
notwithstanding, for the reasons advanced in my judgment, there was
no genuine bona fide dispute advanced by the COT in
the first place,
in other words, no dispute which could form the subject matter of any
alternative dispute resolution process.
And no satisfactory evidence
was produced to the contrary. In addition, and purely by way of
aside, a bona fide attempt was indeed
made by Themba to resolve
matters extramurally. To no avail.
14. Moreover, on
the version advanced by the COT, the agreement with Themba was
confined to the allegations made at paragraph 7
of this judgment in
several material respects, these allegations are consistent with the
terms averred by Themba. I have addressed
this more fully in my
judgment.
15. In the final
analysis, therefore, I am satisfied that this point is without
substance.
16. The second
point pertains to my interpretation of the Guidelines as not being
peremptory. In the view of the COT the phrase
“in accordance
with" the Guidelines sufficed to make them obligatory in nature
so that they had to be strictly complied
with. I have addressed the
reasons for my interpretation of the Guidelines at paragraphs 122 et
sequitur of my judgment. Moreover,
to compound matters, the COT never
provided any detail of the respects, if any, in which the Guidelines
were not complied with
by Themba, whether substantially or at all.
17. Thirdly, it
is argued that I erred in finding that Themba had proved its claims,
this because all of the appointment letters
contained suspensive
conditions which were not fulfilled. The suspensive condition (under
the heading “Programme”)
referred to is quoted below:
11
The appointment is subject to submission of an acceptable programme
of works to COT by the consultant within 7 days from date of
receiving this letter. COT reserves a right to either approve or
disapprove of such programme and in the case of the latter the
consultant shall revise and resubmit the programme within 48 hours. ”
18. This argument
is res nova. It was never raised by the COT whether prior to the
application or in its answering affidavit. In
any event, the COT
plainly waived this condition, to the extent pertinent, by never
invoking same during the course of the agreement,
and indeed, it made
part payment under same. None of the cases quoted by Counsel for the
COT to support this argument is applicable
to the facts in casu.
19. It was
further argued that I erred in accepting that Themba had delivered
the deliverables. This point is unsustainable, because
the COT
advanced no evidence to controvert the assertions made by Themba that
it did so, and Themba’s assertions were substantiated
by a
plethora of documentary evidence. The works ultimately provided by
Themba for the COT were indeed functional and were used,
this
therefore confirming substantial completion of the contract. This was
not in dispute. This is fully addressed in my judgment.
20. The final
point was that I applied the wrong rule in my adjudication of the
“disputes raised in the answering affidavit.”
In reliance
on this argument, Counsel for the COT quoted from the case of NDPP v
Zuma 2009(2) SA 277 (SCA). in which the Plascon
Evans rule was
traversed. In my assessment of the facts, I remained at all times
fully cognisant of the terms of the Plascon Evans
rule, as enunciated
in Plascon-Evans Paints (Ptv) Ltd v Van Riebeeck Paints (Ptv) Ltd
1984(3) SA 623 SCA.
21.1 am further
fortified in the stance which I adopted by the decision in Wiqhtman
t/a JW Construction v Headfour (Ptv) Ltd and
another 2008(3) SA 371
(SCA). at paragraph 13:
"A
real, genuine and bona fide dispute of fact can exist only where the
court is satisfied that the party who purports to raise
the dispute
has in his affidavit seriously and unambiguously addressed the fact
said to be disputed. There will of course be instances
where a bare
denial meets the requirements because there is no other way open to
the disputing party and nothing more can therefore
be expected of
him. But even that may not be sufficient if the fact averred lies
purely within the knowledge of the averring party
and no basis is
laid for disputing the veracity or accuracy of the averment. When the
facts averred are such that the disputing
party must necessarily
possess knowledge of them and be able to provide an answer (or
countervailing evidence) if they be not true
or accurate but, instead
of doing so, rests his case on a bare or ambiguous denial the court
will generally have difficulty in
finding that the test is satisfied.
I say “generally” because factual averments seldom stand
apart from a broader factual
matrix of circumstances all of which
needs to be borne in mind when arriving at a decision. A litigant may
not necessarily recognise
or understand the nuances of a bare or
general denial as against a real attempt to grapple with all relevant
factual allegations
made by the other party. But when he signs the
answering affidavit, he commits himself to its contents, inadequate
as they maybe,
and will only in exceptional circumstances be
permitted to disavow them. There
is
thus a serious duty imposed upon a legal adviser who settles an
answering affidavit to ascertain and engage with facts which
his
client disputes and to reflect such disputes fully and accurately in
the answering affidavit. If that does not happen it should
come as no
surprise that the court takes a robust view of the matter. ”
22. In the
premises, I am of the view that the applicant, being the COT, does
not enjoy a reasonable prospect of success on appeal,
this because no
genuine bona fide dispute was raised to the claims against it. Leave
to appeal should accordingly be refused, with
costs following the
result
23. My grounds
for granting judgment are more fully adumbrated in my written
judgment dated 6 June 2016.
24. The following
order is granted:
a. the
applicant’s application for leave to appeal against the
judgment granted on 6 June 2016 is dismissed;
b. The applicant
is directed to pay the costs of this application.
T
BRENNER
ACTING
JUDGE OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
23
August 2016
Appearances
For
the Applicant: Advocate Mofokeng
Instructed
by: Attorneys Dyason Inc
Counsel
for Respondent: Adv M Novitz
Instructed
by: Attorneys Nochumsohn and Teper