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[2015] ZAECBHC 43
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Teyise v Member of the Executive Council for Local Government and Traditional Affairs (236/15) [2015] ZAECBHC 43 (28 July 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION, BHISHO)
Case
No: 236/15
In
the matter between:
MASIXOLE
TEYISE
PLAINTIFF
and
MEMBER
OF THE EXECUTIVE COUNCIL FOR
LOCAL
GOVERNMENT AND TRADITIONAL AFFAIRS
DEFENDANT
JUDGMENT
MBENENGE
J:
[1]
The plaintiff was appointed by the Eastern Cape Provincial
Government
to be the defendant’s driver/messenger for a period linked to
the term of office of the defendant. Consequent
upon that, the
plaintiff commenced serving on 1 July 2014.
On 12 December 2015 the defendant gave the plaintiff notice of
termination of the plaintiff’s services. The termination would
take effect on 31 March 2015. The plaintiff now seeks to
recover the sum of R728 736.80 from the defendant who has been
sued in a nominal capacity.
[2]
It would appear that the defendant is citied purely by reason
thereof
that he represented the defendant when the subject agreement was
being concluded, and issued notice to terminate the agreement.
The Premier of the Eastern Cape Provincial Government, in his
capacity as the functionary upon whom the executive authority of
the
Eastern Cape Province is vested, has not been cited as a further
respondent in these proceedings. The claim is said to
arise
from an alleged breach of contract on the part of the defendant. In
pursuit of the claim, and consequent upon the defendant
entering an
appearance to defend, the plaintiff applied for summary judgment on
the basis that the defendant lacks a
bona fide
defence, and
has entered the appearance to defend solely for purposes of delaying
the action.
[3]
According to the plaintiff’s particulars of claim the
material
terms of the written service agreement (the written agreement) are,
inter alia
, as follows:
(a)
the agreement would endure for a period linked to the term of office
of the defendant, which is currently a period of 5 years;
(b)
in return for the services rendered, the plaintiff would earn
R145 758.00
per annum, plus a personal non-pensionable allowance
of R1 165.00 per month; and
(c)
in the event of a breach by, or misconduct on the part of, the
plaintiff,
the agreement would be terminable upon the defendant
giving 3 months-notice to the plaintiff.
[4]
The plaintiff further alleges that it was an implied term of
the
agreement that he would receive an annual increment of 1% of his
remuneration.
[5]
Copies of the relevant
appointment letter and the relevant written agreement are annexed to
the particulars of claim in support
of the action. Therefore, the
allegations made in the particulars of claim ought to be read in the
context of the provisions and
clauses of the appointment letter and
the written agreement. To contend otherwise, would be to
suggest that is possible for
a litigant to make allegations in
his/her summons amounting to a contradiction between summons and
documents relied upon as basis
for the claim.
[1]
[6]
With regard to the breach of contract, the plaintiff avers:
“
7.
In terms of the agreement, the plaintiff reported
for duty on 1
st
June 2014 and continued to work for the defendant until the 31
st
March 2015 when the agreement was terminated by the defendant in
terms of a letter annexed hereto as annexure “
MT4”
.
8.
By terminating the agreement contrary
to its termination clauses, the
defendant is consequently in breach of the agreement.
9.
In the premises, and as a consequence
of the defendant’s breach
set out above, the defendant is liable to the plaintiff in damages in
South African Rand currency
in the amount of R728 736.80.”
[7]
The amount being claimed has been calculated as follows:
Nature of damages
Amount
Remuneration for the
remuneration period
583
032. 00
Annual increments at
1%
87
454.80
Personal
non-pensionable allowance
58
250.00
TOTAL
728
736.80
[8]
Before delving into the substance of the issues emerging from
the
papers, I have deemed it necessary to point to some shortcomings
that, in my view, bedevil the action and thus the related
summary
judgment application.
[9]
It is available to a
defendant to base his/her opposition to a summary judgment
application on the excipiability of the claim as
formulated.
[2]
Nothing, in my view, precludes the court from
mero
motu
pointing
to the excipiability of an action founding a summary judgment
application where, as here, the allegations made in the particulars
of claim do not disclose a cause of action. It hardly lies with a
litigant whose summons discloses no cause of action to argue
that
his/her adversary has no
bona
fide
defence.
[10]
It is trite law that a court can raise a matter
mero motu
in
the event that that the particular point amounts to a point of law.
In
Cusa v Tao Metal Industries and Others
it was held:
“
Where
a point of law is apparent on the papers, but the common
approach of the parties proceeds on a wrong
perception of what the law is, a court is not
only entitled, but is in fact also obliged,
mero motu,
to
raise the point of law... Otherwise, the result would be a
decision premised on an incorrect application of the
law.”
[3]
[11]
In
Nedbank
Limited v Mendelow NO and another
,
[4]
it was
held that the court could raise issues “
mero motu
where
the facts to which those principles apply are squarely raised in the
papers before the court (and that were before
the
high court) … a court should not allow the
continuation of a wrong because the legal
representatives of the
parties did not appreciate the
correct legal principles
”
.
[5]
[12]
In the circumstances of this case the question is whether the issue
relating to the
existence or absence of a cause of action amounts to
the raising of a point of law. I hasten to answer that question
in the
affirmative.
[13]
The plaintiff’s employment had, in terms of the written
agreement, been subject
to a 12 calendar months’ probation
period. The purpose of the probation is stated as being “
to
determine whether [the plaintiff is] suitable for the type of work
that [he has] been employed for.”
The plaintiff alleges
that he reported for duty on 1 July 2014 and that the agreement was
terminated on 31 March 2015. At
the time of the termination of
the agreement, the plaintiff was still on probation.
[14]
The plaintiff has failed to make out a case that beyond the probation
period he would
still have been employed. Secondly, the
plaintiff has not made out a case for breach of contract. He
simply alleges
that there was a breach of contract when in actual
fact the defendant acted in terms of the termination clause of the
agreement.
Asserting a right to payment of remuneration
for the entire contract period (5 years) is, in the circumstances,
without factual
and legal bases.
[15]
It is not possible in the instant matter to consider whether the
written agreement
has been terminated “
contrary to its
termination clauses
” without having regard to clause 8(a)
of the written agreement. The clause reads:
“
[E]ither
party to this Agreement may terminate it at any time during the
currency thereof on giving three months notice in writing
to the
other party. The employer may, however, accept a shorter period of
notice in an exceptional case, using his own discretion…”
[16]
As already pointed out, the letter terminating the written agreement
is dated 12
December 2015 and the termination was, on the plaintiff’s
own showing, to take effect on 31 March 2015. Followed to its logical
conclusion, and upon a proper construction of clause 8(a), the
plaintiff was given more than the requisite 3 months written notice
of the termination of the written agreement. How a breach arises in
these circumstances, is hard to comprehend. Clause 8(a) entitles
the
employer to terminate the agreement on any lawful ground, subject of
course to compliance with the clause itself. The plaintiff
seems to
have arrogated to himself a right which the written agreement does
not accord him. The allegation made that “
[b]y terminating
the agreement contrary to its termination clauses, the defendant is
consequently in breach of the agreement
”, flies in the face
of the termination clause of the written agreement.
[17]
There is a further
insurmountable obstacle on the plaintiff’s path to success. No
allegation is made in the impugned particulars
of claim that the
plaintiff elected to cancel the agreement on account of his
employer’s repudiation and that he has communicated
the
election to the guilty party. Such allegations are necessary to
sustain a cause of action founded on breach of contract.
[6]
Cancellation of the written agreement is not being sought. Therefore,
the agreement is still in existence, with the result that
the
question of damages consequent upon a breach simply does not arise.
[18]
I now turn to deal with
the question of whether the amount claimed qualifies as a liquidated
amount in money within the meaning
and contemplation of rule 32(1)(b)
of the Rules of this Court, the principal question being whether the
amount is capable of prompt
ascertainment.
[7]
[19]
During argument, counsel for the plaintiff, Mr Nzuzo, was quick to
abandon the application
in so far as it relates to R87 455.80
(for “
[a]nnual increments at 1%
”) as it is not
clear from the impugned particulars of claim as to how the
calculation of the amount has been arrived at.
[20]
In my view, the same fate ought to befall the remaining amounts
(R583 032.00,
being remuneration for the “
remaining
period
”, and R58 250.00, being for a personal
non-pensionable allowance). Upon a consideration of the particulars
of claim
these amounts do not constitute liquidated amounts in money.
The summons is silent regarding whether the amount for remuneration
constitutes gross or net income. Absent an allegation of when the
defendant’s term of office, to which that of the plaintiff
was
linked, commenced, it is not possible to determine precisely what
“
the remaining period
” is. This shortcoming
equally applies to the claim for personal and non-pensionable
allowance.
[21]
Even if it were to be held that I erred in coming to the conclusion
that the plaintiff’s
claims are not liquidated amounts, the
defendant has, in my view, established that he has a
bona fide
defence to the claim, which suffices to resist the summary judgment
application. He states that he intends “
defending the
plaintiff’s claim on the basis that [he] has reversed [his]
decision to dismiss the plaintiff and that the plaintiff
must return
to work.”
The statement, having been made under oath,
cannot be ignored. This, coupled with the fact that the written
agreement is still
in existence, as indeed the plaintiff has not
sought cancellation thereof, makes it demonstrably clear that the
defendant has a
bona fide
defence.
[22]
In these circumstances, the application cannot succeed. There is no
reason why the
usual cost order, which follows upon a refusal of a
summary judgment application, should not be granted. In his heads of
argument
the defendant’s counsel, Mr. Pitt, has pointed to an
occasion on which the application was set down for 30 June 2015. It
is contended that on that occasion the defendant attended court but
“
the matter was not properly enrolled by the plaintiff
”
and that, therefore, the plaintiff must be ordered to pay the
defendant’s costs incurred by counsel’s attendance
to
argue the summary judgment application. This contention was not
persisted in during oral argument.
[23]
In any event, nothing points to the issue of costs as having been
reserved, on 30
June 2015, for determination by the court hearing the
summary judgment application. The order of 30 June 2015 is not before
this
court and therefore the issue raised is not ripe for hearing.
Not even the order of 30 June 2015 is serving before me. Why the
defendant briefed counsel to attend court to resist a summary
judgment application that was, on the defendant’s own showing,
“
not
properly enrolled
” is not clear. If
this is anything to go by, the defendant should derive comfort from
knowing that he is not barred from
pursuing the quest for a cost
order, in due course, with all the salient facts being placed before
the court hearing the main action.
[24]
The following order is therefore made:
(a)
The plaintiff’s summary judgment application is refused.
(b)
The defendant is granted leave to defend the main action.
(c)
The costs of the application shall stand over for determination by
the court hearing the main action.
S
M MBENENGE
JUDGE
OF THE HIGH COURT
Plaintiff’s
Counsel:
Mr S
Nzuzo
Instructed
by
Badi
Loliwe Attorneys,
c/o S
Z Sigabi & Co., King William’s Town
Defendant’s
Counsel:
Mr D
V Pitt
Instructed
by
the
Bhisho State Attorney
Heard
on: 14 July 2015
Delivered
on: 28 July 2015
[1]
Naidu
v Naidoo
1967
(2) SA 223
(N) at 226.
[2]
South
African Burea of Standards v GGS/AU (Pty) Ltd
2003
(6) SA 588
(T) at 592 E – H.
[3]
[2008] ZACC 15
;
2009
(2) SA 204
(CC) at para 68.
[4]
[2013]
ZASCA 98.
[5]
Supra
para
17.
[6]
Van
Rooyen v Minter van Openbare Werke & Gemeenskapbou
[1978]
3 All SA 445
(A),
1978 (2) SA 835
(A);
Tuckers
Land & Development Corporation (Pty) Ltd v Hovis
[1980]
1 All SA 358
(A),
1980 (1) SA 645
(A);
Highveld
7 Properties (Pty) Ltd v Bailes
[1999]4
All SA 461 (A), 1999 (4) SA 1307 (SCA).
[7]
Blakes
Maphanga Inc v Outsurance Insurance Co. Ltd
2010
(4) SA 232
(SCA) at 240D – 241C; also see
Botha
v W Swanson and Company (Pty) Ltd
1908(2)
PH F85 (CPD) where Corbett J said “a claim cannot be regarded
as one for “a
liquidated
amount in money
”
unless
it is based on an obligation to pay an agreed sum of money or is so
expressed that the ascertainment of the amount is a
mere matter of
calculation.