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[2016] ZAGPPHC 1196
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Minister of Public Works v Resendzaphanda Consulting & Projects Management (68230/2014) [2016] ZAGPPHC 1196 (24 November 2016)
THE
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
CASE NO 70692/2014
Date:
24.11.2016
Reportable:
No
Of
interest to other judges: No
Revised
In
the matter between:
THE MINISTER OF PUBLIC
WORKS
PLAINTIFF
AND
RESENDZAPHANDA
CONSULTING
&
PROJECTS MANAGEMENT
FIRST
DEFENDANT
PHINDELA
JAPANI
SECOND
DEFENDANT
THLEMULI SINGO
THIRD
DEFENDANT
OFHINI MATSEA
FOURTH
DEFENDANT
BRIAN VELDSMAN
FIFTH
DEFENDANT
HEARD:
24 SEPTEMBER 2016
DELIVERED:
24 NOVEMBER 2016
JUDGMENT
Molahlehi
AJ
Introduction
[1.]
This is an exception by the fifth defendant, Mr Veldsman, in terms of
Rule 23 of the Uniforms Rules of the High Court (the
Rules) against
the particulars of claim issued by the plaintiff, the Minister of
Public Works, (the plaintiff) against him and
others on 25 September
2014. The complaint of Mr Veldman, in the exception, is that the
particulars of claim are both vague and
embarrassing and accordingly
does not disclose a cause of action against him. He had before filing
the exception called on the
plaintiff to remedy the defect in the
particulars of claim. The plaintiff has failed to do anything in that
regard.
[2.]
For the purpose of this judgement, I do not deem it necessary by way
of background to deal with the details of all the other
parties
except those of the first and the fifth respondents. The first
respondent is Rosedzaphanda Consulting and Project Management,
a
close corporation registered in terms of the laws of this country
with its head based in Polokwane, Limpopo.
[3.]
Mr Veldsman is an employee of the plaintiff who at the time the
plaintiff's claim arose was the project director based at the
Bloemfontein office of the plaintiff.
[4.]
The plaintiff's claim arose from a tender which had been issued for
the purposes of rendering a mechanical engineering services
of
replacing two coal-fired steam boilers at Groenpunt.
[5.]
The first applicant had applied for the tender and indicated therein
that it was competent to render the services required
in the tender
specification. Mr Veldsman was appointed the director of the project
of replacing the two coal fired steam boilers
at Grunpoint.
[6.]
It would appear after the tender was awarded and during May 2011, the
first respondent presented to the plaintiff a preliminary
design
report for the project including an invoice in the amount of R232
331.44
[7.]
The design was purportedly signed by a certain Mr Phasha who,
however, on the enquiry by the electrical engineer, Mr Warden,
of the
plaintiff denied having prepared the design. The first respondent
submitted the second report bearing the name of Mr Tugwete.
[8.]
It would appear arising from the above an internal audit was
conducted by the plaintiff, the results of which were the following:
“
(a)
the First Respondent misrepresented with regards the use of the name
and credentials of Mr Mafihle Phasha without his consent,
(b)
Mr Mafihle Pasha's signature on the presented preliminary design
report was forged,
(c)
the Fifth Defendant disregarded Mr Henry Warden's genuine concerns
about the conduct of the First Defendant and insisted that
the
submitted invoice be affected despite strong evidence of
misrepresentation by the First Defendant and
(d)
recommended that civil proceedings be instituted to recover the money
paid to the First Defendant."
[9.]
The finding against the fifth respondent was that he ignored the
advice from Mr Warden regarding the payment of the invoice
from the
first defendant.
[10.]
The claim against the employee is based on the following:
“
10.1
In contravention of the provisions of the
Public Finance Management
Act 1 of 1999
, the Plaintiffs' policy on irregular expenditure
management, the Treasury Regulations on supply chain management,
10.2
against the advice of Mr Henry Warden,
10.3
with the preliminary design been approved by the Sketch Plan
Committee; and
10.4
while there was pending internal investigations on the presented
preliminary design(s) gave an instruction that the invoice
been paid,
alternatively payment of the invoice, further alternative allowed the
invoice to be processed and paid.
11. The conduct of the
Fifth Defendant prevented the Plaintiff to exercise the option
considering the tender awarded to the First
Defendant."
[11.]
The plaintiff contends,
in the first instance, that the exception stands to be dismissed
because it was not properly signed as required
in terms s 4 of the
Right of Appearance in Courts Act (the Act).
[1]
Section 4 of the Act deals with the right of an appearance of an
attorney in the High Court. The right of appearance by an attorney
in
the High Court is granted upon application and if successful the
Registrar issues the certificate in terms of s 4 (2) of the
Act.
[12.]
Section 4 of the Act should be read with s3(4) of the Act which
provides that an attorney who has been granted the right of
appearance in the High Court is entitled to discharge functions of an
advocate in any proceedings in the High Court.
[13.]
In response Ms Kirchner, the attorney who signed the exception filed
the affidavit confirming that she has the right of appearance
in the
High Court of South Africa and for that reason, her name has been
entered on the roll of attorneys, in accordance with the
provisions
of s 4(2) of the Act.
[14.]
In light of the above, I find, the point raised by the plaintiff,
concerning the right of appearance in this court by Ms Kirchner,
is
unstainable and accordingly stands to be dismissed.
Exception:
the general principles
[15.]
The general principles governing exceptions in our law are well
established. An application for an exception is governed by
Rule
23(1) of the Uniform Rules of the Court this which reads as follows:
"(1) Where any
pleading is vague and embarrassing or lacks averments which are
necessary to sustain an action or defence, as
the case may be, the
opposing party may, within the period allowed for filing any
subsequent pleading, deliver an exception thereto
and may set it down
for hearing in terms of paragraph
(f)
of subrule (5) of rule
(6): Provided that where a party intends to take an exception that a
pleading is vague and embarrassing he
shall within the period allowed
as aforesaid by notice afford his opponent an opportunity of removing
the cause of complaint within
15 days: Provided further that the
party excepting shall within ten days from the date on which a reply
to such notice is received
or from the date on which such reply is
due, deliver his exception."
[16.]
The trite question to
answer when dealing with an exception is whether the exception goes
to the heart of the plea and if so whether
it is vague or
embarrassing to the extent that the defendant does not know the claim
he has to meet.
[2]
The vagueness
of pleadings has to do with the formulation of the claim which
generally results from the defect therein. As a general
principle an
exception stands to fail even if the claim is shown to be vague and
embarrassing and thus in order to succeed the
excipient has to show
that not only is the cause of action vague and embarrassing but that
he or she will suffer serious prejudice
if compelled to plead in the
face of the defect in the cause of action.
Rule
18(4) of the Rules of this court requires that:
"(4) Every pleading
shall contain a clear and concise statement of the material facts
upon which the pleader relies for his
claim, defence or answer to any
pleading, as the case may be, with sufficient particularity to enable
the opposite party to reply
thereto."
[17.]
The underlying purpose of
the rule is stated in Trope v South African Revenue Services,
[3]
as follows:
"It is, of course, a
basic principle that particulars of claim should be so phrased that a
defendant may reasonably and fairly
be required to plead thereto.
This must be seen against the background of the further requirement
that the object of pleadings
is to enable each side to come to trial
prepared to meet the case of the other and not be taken by surprise.
Pleadings must,
therefore, be lucid and logical and in an intelligible form; the
cause of action or defence must appear clearly
from the factual
allegations made (Harms Civil Procedure in the Supreme Court at
263-4). At 264 the learned author suggests that,
as a general
proposition, it may be assumed that, since the abolition of further
particulars, and the fact that non-compliance
with the provisions of
Rule 18 now (in terms of Rule 18(12)) amounts to an irregular step, a
greater degree of particularity of
pleadings is required. No doubt,
the absence of the opportunity to clarify an ambiguity or cure an
apparent inconsistency, by way
of further particulars, may encourage
greater particularity in the initial pleading.
The ultimate test,
however, must in my view still be whether the pleading complies with
the general rule enunciated in Rule 18(4)
and the principles laid
down in our existing case law."
[18.]
In the present matter, it is apparent from the reading of the
particulars of claim upon which the cause of action is based
on the
misrepresentation made by the representative of the plaintiff. The
basis of the plaintiffs claim is that the contract was
concluded
through a misrepresentation. It is for this reason that the plaintiff
is seeking a refund of the amount of R202 331.44
from the defendant.
The payment was made consequent to the impugned agreement.
[19.]
There is nothing in the particulars of claim that suggest that the
fifth defendant was at the time of the conclusion of the
contract
part of the first defendant or played any role in the process of
formulating the agreement. It is, in fact, apparent from
the reading
of the particulars of claim that the fifth defendant was the
appointed the director of the project, as the first respondent
did
not have register engineering as competent in mechanical engineering.
It would appear this happened after the conclusion of
the contract.
[20.]
If it is indeed correct, that the tender awarded was due to
misrepresentation, it is not clear from the particulars of claim
as
to in what way the fifth respondent, participated in that project so
as to attract personal liability.
[21.]
The plaintiff argued in the heads of argument that paragraph 10 and
11 of the particulars of claim provides sufficient, clear
and concise
material facts upon which the claim is based on.
[22.]
In my view, the exception has to be evaluated in the context where
the plaintiff's claim is based on the misrepresentation
by the first
defendant. I have already indicated that there is no averment that
connects the fifth defendant to the fraudulent
misrepresentation of
the first defendant. It is apparent from the reading of the
particulars of claim that the involvement of the
fifth defendant in
the project occurred after the conclusion of the contract when the
alleged misrepresentation had already happened.
[23.]
Whilst the cause of action against the first defendant is based on
the general principles of contract, it is not clear whether
the same
applies to the fifth defendant. It is also not clear whether the same
applies to the fifth defendant. It is also not clear
whether the
cause of action against him is based on delict.
[24.]
It does appear that the
claim, in some way, is based on statutory liability. In this regard,
the plaintiff avers that the fifth
defendant contravened the
provisions of the
Public Finance Management Act 1 of 1999
. The
approach to adopt when dealing with a pleading based on the
provisions of a statute or a section of a statute received attention
in Aron Property Development ( EDMS) BPK v Stad Kapstaad,
[4]
where the court in quoting with approval what was said in Fundutrust
(Pty) Ltd ( in liquidation) v Van Deventer
1997 (1) SA 710
(A) at &
25H-I said:
"It is not necessary
in a pleading, even where the pleader relies on a particular statute
or section of a statute, for him
to refer to terms it provided that
he formulates his case clearly ... or, put differently, it is
sufficient if the facts are pleaded
from which the conclusion can be
drawn that the provisions of the statute applies..."
[25.]
In the present matter whilst the cause of action is based on the Act,
it is not clear what liability under that Act attaches
to the fifth
defendant to be personally liable. This is complicated further, if I
may emphasise, by the fact that the claim against
the other
defendants is based on a misrepresentation in obtaining the contract.
This is also in the context wherein the plaintiff
seeks to have the
fifth defendant jointly liable with the other defendants. The same
consideration applies to the averment regarding
the treasury
regulations and policy.
[26.]
It is finally, not entirely clear as to what basis the alleged
conduct of the fifth defendant disentitled the plaintiff the
opportunity "to cancel the contract". The plaintiff fails
to provide any details as to in what way the conduct of the
fifth
defendant disentitles the Minister the opportunity to cancel the
contract after discovering the first defendant's misrepresentation.
In light of the above discussion, I find that the fifth defendant's
exception stands to succeed. It cannot be said that the manner
in
which the plaintiff has formulated its claim its claim is in such a
way that the fifth defendant can be required to plead. I
see no
reason why costs should not follow the results.
Order
27.
In the premises the following order is made:
1.
The fifth defendant's exception is upheld with costs.
2.
The plaintiff is given leave, if so advised, to file an amendment to
its particulars of claim and that should be done within
15 days of
date of this order.
__________________
Molahlehi
AJ
Acting
Judge of the
South
Gauteng High Court
APPEARANCES:
Plaintiff:
Adv LG. P Ledwaba Attorney
Instructed
by the State Attorney
Applicant:
Adv S Glober
Instructed
by Van Zyl Le Roux Inc.
[1]
Act number 62 of 1995.
[2]
The question is set out in Jewel v Brawnwell-Jones
1998 (1) SA 836
(W) at 904 F - H.
[3]
1993 (3) SA 264 (A).
[4]
2003 (6) SA 82