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[2015] ZAGPPHC 351
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VIP Consulting Engineers (Pty) Ltd v Ekurhuleni Metropolitan Muncipality (70201/2013) [2015] ZAGPPHC 351 (20 May 2015)
THE
HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE NO:
70201/2013
DATE OF HEARING:
14 MAY 2015
DATE: 20 MAY 2015
REPORTABLE
OF INTEREST TO
OTHER JUDGES
In the matter
between:
VIP
CONSULTING ENGINEERS (PTY)
LTD
................................................................................
Excipient
and
EKURHULENI
METROPOLITAN
MUCIPALITY
...................................................................
Respondent
JUDGMENT
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