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[2014] ZAGPPHC 39
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Docno Travel Agents And Tours (Pty) Ltd v MEC of Health, Mpumalanga Province and Another (33149/2013) [2014] ZAGPPHC 39 (7 February 2014)
IN THE NORTH
GAUTENG HIGH COURT, PRETORIA
(REPUBLIC OF
SOUTH AFRICA)
CASE
NO: 33149/2013
DATE:
07 FEBRUARY 2014
In the matter
between:
DOCNO TRAVEL
AGENTS AND TOURS (PTY)
LTD
..........................................
Plaintiff
And
MEC OF HEALTH,
MPUMALANGA PROVINCE
.....................................
1ST
Defendant
DEPARTMENT OF
HEALTH, MPUMALANGA PROVINCE
.................
2ND
Defendant
JUDGMENT
MALINDI AJ
INTRODUCTION
[1.] The Plaintiff
issued a summons for provisional sentence against the defendant for
R2 700 000,00 with interest thereon at 15.5%
per annuam as from
February 2013.
[2.] it is common
cause that the Plaintiff was appointed to arrange and pay for the
accommodation and travelling expenses of the
1st Defendant and the
VIP Protection team during the relevant period. The Plaintiff would
then invoice the 2nd Defendant for the
reimbursements. The memorandum
from the Office of the MEC to the Acting Head of Department in this
regard is annexed to the summons.
[3.] The Plaintiff
relies on a document dated 8 June 2012 to establish the Defendant’s
acknowledgment of indebtedness to the
Plaintiff. The document reads
as follows:
“This serves
to confirm that Docno Travel Agent and Tours had outstanding payments
(of R2 700 000.00) from 2009 to 2011. The
Department could not make
such payment timeously due to the fact that there was an
investigation that was conducted by Internal
Audit for validation of
the outstanding payments as required by Public Finance Management
Act, 1999 (Act no. 1 of 1999 as amended)’’.
[4.] In general, the
Plaintiffs tittle and the Defendant’s liability must appear ex
facie the summons and the document upon
which the claim is founded,
without resort to extrinsic evidence. (Bowfam Leasing (Pty) Ltd t/a
Metropole Finance (Pty) Ltd v Muller
1982 (2) SA 759
( c) at 762 G)
[5.] The Defendants
do not rely purely on a defence that appears ex facie the summons and
the documents relied on. They proffer
further evidence in the form of
a denial of the authority of the person who wrote annexure “DOC2”.
This person’s
desgnation is Director: Internal Audit. In his
answering affidavit he states: “Furthermore, in my capacity as
the Director:
Internal Audit I donot have the authority to bind the
Department in any contractual relationship to sign acknowledgements
of debt
on behalf of the Department. ”
[6.] The Defendants
dispute that annexure “D0C2” is a liquid document “
since it does not amount to an admission
of liability by the
department or a duly authorised representative of the department but
merely seeks to confirm that the Plaintif
Hhad outstanding payments
form the department in respect of travel agency services rendered on
behalf of the office of the MEC
from 2009-2011 ” which could
not be made timeously due to investigations for validity in terms of
the
Public Finance Management Act.” (Defendants
’
underlining)
[7.] On the face of
annexure “DOC2”,the following is clear:
7.1 The Plaintiff
had oustanding payments of R 2 700.000,00 for the period from
2009/2011.
7.2 Payments could
not be made timeously "due to the fact that there was an
investigation" that was conducted by the deponent
to the
Defendants’ affidavit for validation of the outstanding
payments.
[8.] The message
conveyed in this document is that the claim could not be paid when it
was requested because there was an investigation
being conducted at
the time. Ex Facie this document it is clear that a claim of R 2 700
000.00 was received by the
Defendants and that
it was not paid for the stated reasons. The director: Internal Audit
acknowledges this is the amount owed to
the Plaintiff.
[9.] As to the
question whether the Director had authority to acknowledge the
defendants’ liability it is significant that
the documents was
addressed “TO WHOM IT MAY CONCERN.” He placed himself in
a position to speak to whomever it may concern
regarding the status
of this claim. That is equal to assuming authority to speak on this
money-related enquiry. He had been tasked
with investigating the
validity of the claim.
[10.] The Plaintiff
has therefore discharged its onus of proving on a balance of
probabilities that the director had authority to
acknowlegde the
defendant’s liability. See Scala Cafe v Rand Advance (Pty) Ltd
1975(1) SA 28(N) at 31H-32A
[11.] The Defendants
have not sought to show that on a balance of probabilities they are
likely to succeed in the principal case
on the merits. They bear the
onus in this regard (Sonfred (Pty) Ltd v Papert 1962(2) SA 140(W) at
143H and Dickinson v SA General
Electric Co (Pty) Ltd 1973 (2)SA 620
(A) at 630F. The only attack is on the Director’s lack of
authority. The Plaintiff’s
case in this regard outweights that
of the Defendants.
[12.] Furthermore,
even if the document is not as clear as I suggest on the Defendant's
acknowledgement of indebtedness, and that
the Director’s
authority is in doubt, the scales will not tilt in favour of the
Defendants. Instead it would be equally balanced.
In the event I am
still required to grant provisional sentence, unless special
circumstances exist. (Allied Holdings Ltd v Myerson
1948(2) SA 961
(W) at 966-967).
[13.] In the
circumstances I find that the Plaintiff has made a case for
provisional sentence
to be granted
against the Defendants.
[14.] I therefore
make the following order:
14.1 Provisional
sentence is granted in terms of the summons dated 20 May 2013 under
case number 33149/2013;
14.2 The Defendants
are to pay to the Plaintiff the amount of R2 700 000,00;
14.3 Interest on the
said amount at the rate of 15.5% per annum a tempore mora\
14.4 The Defendants
are to pay the costs, jointly and severally, the one paying the other
to be absolved, on a party-and-party scale;
14.5 Upon compliance
with paragraphs 14.2, 14.3 and 14.4 above, the Defendants will be
entitled to demand security for the restitution
thereof if this order
should be reversed.
SIGNED AT
PRETORIA ON THIS DAY 7 OF February 2014
Malindi, AJ
Acting Judge of
the High Court of South Africa