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[2015] ZAGPPHC 412
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VIP Consulting Engineers (Pty) Ltd v Ekurhuleni Metropolitan Municipality (70201/2013) [2015] ZAGPPHC 412 (14 May 2015)
THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NO: 70201/2013
DATE
OF HEARING: 14 MAY 2015
In
the matter between:
VIP
CONSULTING ENGINEERS (PTY)
LTD
Excipient
and
EKURHULENI
METROPOLITAN MUCIPALITY
Respondent
J U D G M E N T
AVVAKOUMIDES,
AJ
1.
The
respondent issued summons against the excipient by way of simple
summons claiming payment under five heads for professional
fees in
respect of services rendered and disbursements incurred by the
respondent on the excipient’s behalf during February
2007 to
March 2013.
2.
After
the summary judgment proceedings in which the excipient was granted
leave to defend four of the five claims were settled and
paid by the
excipient, the respondent filed a declaration, against which the
excipient has filed an exception on two grounds:
2.1 the first
is that the claim disclose no cause action because the claim in
contract and the
contract as pleaded does not satisfy the formalities
stipulated in the Municipal Finance Management Act, 2003 (the MFMA)
and is
thus void and unable to give rise to a right of action; and
2.2 the second
is that the respondent’s failure to have pleaded whether the
services rendered
by it fall within the scope of “normal
services” or “additional services” as contemplated
in the Guidelines
Scope of Services and Tariff of Fees (the tariff)
of the Engineering Council of South Africa and as such renders the
claim lacking
in allegations necessary to sustain a claim for payment
in terms of the tariff, alternatively vague and embarrassing, further
alternatively
an affront to the provisions of the Uniform rules of
court pertaining to pleading.
3.
The
contract is alleged to be partly oral and partly in writing, and the
written portion is annexed to the declaration as “VIP-1”,
this being a letter dated 12 February 2012 by the excipient’s
Tender and Procurement Committee addressed to the respondent
in terms
of which the respondent was appointed to render certain services,
subject to certain conditions.
4.
The
excipient argued that because the letter of appointment is not a
contract it falls short of compliance with Chapter 11 of the
MFMA,
more particularly section 116 (1) thereof which provides that a
contract or agreement procured through the chain supply management
system of a municipality or municipal entity must be in writing and
stipulate the terms and conditions of the contract or agreement,
which must provide provisions providing for the termination of the
contract or agreement in the case of non- or underperformance,
dispute resolution mechanisms to settle disputes between the parties,
a periodic review of the contract or agreement once every
three years
in the case of a contract or agreement for longer than three years;
and any other matters that may be prescribed.
5.
The
excipient argued that a correct analogy of the non-compliance with
MFMA is, inter alia, that of
section 2
(1) of the
Alienation of Land
Act 1981
in terms of which the failure to comply with the formalities
thereof will lead to a nullity of any contract so not complying. The
excipient thus argued that “VIP-1” is not a contract as
required by the MFMA.
6.
Secondly
the excipient argued that it is insufficient for the respondent to
have pleaded that it would be remunerated for the services
to be
rendered in terms of the guideline scope of service and tariff of
fees for persons registered in terms of the Act.
The excipient
relied on the judgment of Blieden J in Grindrod (Pty) Ltd v Delport
and Others
1997 (1) SA 342
(W) in which the learned judge held that
“…
any
party claiming damages to provide sufficient information to enable
the opposing party to know why the particular amount being
claimed as
damages is in fact claimed
…..”. I note the distinction between the monies claimed
by the respondent being fees claimed in terms of guidelines
and not
damages referred to in the Grindrod case.
7.
Be
this as it may, the respondent argued that the excipient accepted and
paid four of the five claims, which were pleaded in identical
form,
during and after the summary judgment proceedings. The respondent
argued that the excipient is indeed in a position to plead
to the
declaration and that is what the court’s enquiry should be
focused on. If the excipient wishes to raise any issue
relating to
the non-compliance with formalities of legislation it can do so in
its plea. The issue is whether the excipient is
in a position to
plead to the declaration.
8.
The
respondent argued that non-compliance with the MFMA if incorporated
in the plea may be dealt with by a replication, if applicable.
I was
referred to Erasmus: Superior Court Practice, B1-151 and the cases
referred to therein, in terms of which it is stated that
in order to
succeed, an excipient has the duty to persuade the court that upon
every interpretation which the pleading in question,
and particular
the document on which it is based, can reasonably bear, no case of
action or defence is disclosed.
9.
The
respondent further argued that clause 36 of the excipient’s
Supply Management Policy specifically provides that in circumstances
where the municipality previously engaged a service provider and
procured services in terms of a written agreement, no further
procurement process or anew agreement is required to regulate the
rendering of further services to such municipality. The respondent
alleges that further evidence may be required with regard to the
alleged non-compliance with the provisions of the MFMA. Thus it
is
incorrect to decide this issue on exception. I am inclined to agree.
The exception was not raised against the other four claims.
10.
On
the question that the declaration is vague and embarrassing because
of the inadequate description of the tariffs and rates and
nature of
services, I do not believe that the failure to identify the services
wither as “normal” and “additional”
services
renders the declaration vague and embarrassing. It is clear enough
for the excipient to plead thereto and it can do so
without much
difficulty. In my view the excipient has not illustrated that it will
suffer serious prejudice if the offending allegations
are not
expunged. See Levitan v New Haven Holiday Enterprises CC
1991 92) SA
297
(C) at 298 A and Lockhat v Minister of Interior 1960 (3) 765 (D)
at 777 A-E the latter in which the test applicable in deciding
exceptions based on vagueness and embarrassment was set out.
11.
Consequently,
I make the following order:
11.1
The exception is dismissed.
11.2
The excipient is ordered to pay the respondent’s costs.
________________________________
AVVAKOUMIDES, AJ
JUDGE OF THE HIGH COURT
GAUTENG
DIVISION, PRETORIA
Representation for Excipient:
Counsel
Adv: A. W. Pullinger
Instructed by:
Poswa Incorporated
Representation for the Respondent:
Counsel
Adv: J. A. Venter
Instructed by
WWB Botha Attorneys