About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2014
>>
[2014] ZAGPPHC 386
|
|
H R Computek (Pty) Ltd v State Information Technology Agency (Pty) Ltd (54646/2010) [2014] ZAGPPHC 386 (2 April 2014)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION. PRETORIA
CASE NO: 54646/2010
NOT REPORTABLE
NOT OF INTEREST TO
OTHER JUDGES
In the matter between:
H
R COMPUTEK (PTY) LTD
….........................................................................................................
Plaintiff
and
STATE
INFORMATION TECHNOLOGY AGENCY
…..............................................................
Defendant
(PTY)LTD
JUDGMENT
MOTHLE
J
INTRODUCTION
1.
The Plaintiff in this matter, H R Computek (Pty) Ltd
(“Computed’)
has
sued the State Information Technology Agency (Pty) Ltd (“S/LA")
for an amount of R2,000,000.00 for services Computek
claims it has
rendered, as a service provider in terms of a contract concluded in
2007. SITA’s contention in essence is that
there was no
contract between the parties in 2007, on which the alleged claim can
be based.
2. Computek first
approached the Court by way of application. In that application,
several affidavits were exchanged between the
parties and when the
matter came to Court, the parties by themselves agreed that there
were disputes of fact which would require
the matter to be referred
to trial. Computek delivered a declaration to which SITA filed a
plea. The matter then came before this
Court as action proceedings.
3.
Computek called only one witness, Mr H R Chakala
(“Chakala”)
who
is the Chief Executive Officer (“CEO”) of this company.
At the end of his evidence Computek closed its case. SITA
then
applied for absolution from the instance with costs.
BACKGROUND
4.
Chakala testified that in 2007 Computek was invited by the Department
of Local Government and Housing of the Limpopo Province
(“the
Department”)
to
make a presentation for development of a model solution in the
monitoring and evaluation of performance management in the
municipalities.
SAS, which is the company that supplies software for
that solution model, also attended the presentation. Subsequent
thereto the
Department, through SITA, purchased the software in 2007
from SAS.
5. Chakala further
testified that Computek, on invitation by the Department, made a
proposal as to the implementation model. The
Department requested
Computek to consider a reduction of the amount originally quoted for
the service. The Department claimed that
the implementation costs as
quoted would exceed the amount available in the budget. A new
proposal with a reduced amount was forwarded
to the Department
somewhere in November 2007.
6.
Following that proposal, Chakala alleges that SITA, represented by
their Regional Office manager one Calvin Kekana
(“Kekana“),
issued
a letter of award to Computek on 19 December 2007 under reference
“RFQ
348
LIMPDLGH003 2007 PERF MGT (hereinafter referred to as
“
RFQ
2007”).
The
letter of award stated that the proposal/quote from Computek has been
accepted by SITA and that Computek should confirm acceptance
within
one day after receipt of that letter. Computek accepted the award on
4 of January 2008.
7. Chakala further
testified that after receipt of this letter and formal acceptance of
the award, he requested a meeting with the
officials of the
Department so as to discuss the implementation of the project. This
meeting was held on 16 January 2008, where
after Computek began with
the implementation of the project.
8.
According to Chakala it was during or about February 2008, while they
were busy with the implementation of the project on the
basis of the
2007 letter of award, that SITA issued a request for quotation for
the same project. This request for quotation came
under the reference
number of RFQ 348 LIMP005 DLGHP MS
[“RFQ
of 2008").
This
RFQ 2008 called for quotation in regard to services for the
implementation of this project. Chakala testified that he was
requested by the Department to submit a proposal to that RFQ 2008
which proposal SITA accepted and issued a letter of award in March
2008.
9. When Computek lodged
its claims for payment, it did so under the RFQ of 2008 and backdated
some of the time sheets to January
2008 to cover the period before
the 2008 award was made. SITA objects to the claim for any work done
prior to the issuing of the
letter of award of March 2008. Computek
on the other hand through Chakala contends that the work done from
January 2008 was covered
by the 2007 letter of award.
10. SITA replicates by
stating that, that letter of award of 2007 was invalid as at that
time SITA had not called for any request
for quotation and Computek
is unable to produce any documentation to prove that it submitted a
request for quotation to SITA which
would then have led to the
alleged award of 2007.
APPLICATION FOR
ABSOLUTION
11. After the Court heard
the evidence of Chakala, Computek closed its case. SITA then applied
for absolution on the following grounds:
(i) Against the Rules of
pleading, Computek lodged a claim in terms of the award and purchase
order of 2008 in its application proceedings
but then changed to
plead the contract of 2007 as a basis for the claim in its action
proceedings;
(ii) Computek has failed
to present any documentation that proves that there was a contract in
2007 between itself and SITA which
led to the alleged letter of 2007.
The letter of 2007 was issued unlawfully and therefore the Court
cannot give effect to an unlawful
contract;
(iii) Chakala, in his
evidence under oath confirmed that the claim against SITA is based on
the 2007 contract, which contract it
had with the Department and not
with SITA.
12. In response, counsel
for Computek argued that SITA is simply a clerical institution which
is supposed to make payments as instructed.
It is not a principal
contracting party and therefore cannot be party to a contract.
13.
I find this submission by Computek’s counsel rather bizarre. If
he contends that SITA does not have capacity to contract
but simply
to effect payment, then there was no basis for Computek to issue
summons against SITA in the first place. More so that
Chakala as well
as counsel for Computek himself argued that Computek had a
contract
with the Department
in
2007, and not with SITA. On this ground alone, ! have no doubt in my
mind that Computek Instituted proceedings against the wrong
party in
trying to recover its claim.
14. I am also of the view
that there is merit in SITA’s contention that the discrepancy
in the pleading of Computek’s
case, put paid to any prospects
of its success. When Computek instituted application proceedings, it
based its claim on the contract
with SITA arising out of RFQ of 2008.
Paragraph 6.1 of the Founding Affidavit attest to this fact. This in
my view makes sense
as there was a contract concluded in 2008, which
SITA does not dispute. However, when the parties decided to come by
way of action,
Computek changed course and sued on the basis of the
letter of award of 2007. This appears in paragraph 4.1 of Computek’s
Declaration.
15.
Computek, which bears the
onus
to
prove its case, failed to place before the Court the RFQ of 2007 and
the acceptance thereof by SITA. The importance of this RFQ
2007 is
that it should contain the terms and conditions of the contract to
which the letter of award of 2007 would be based. Without
these
documents, Computek is simply armed with a letter of award that has
no content.
16. Under
cross-examination, Chakala confirmed that the claim is based on the
letter of award of 2007, basically and materially
changing his
evidence under oath, as deposed to in the Founding Affidavit filed in
the application proceedings. In other words,
Chakala made two
confiicting versions under oath: one version in the Founding
Affidavit and the other different version in Court
as a witness. It
seems to me that this contradiction is a material discrepancy that
cannot even be cured by any form of amendment.
17. It is indeed correct,
as contended by counsel for SITA, that even if the Court were to
accept the letter of award of 2007 as
binding on both SITA and
Computek, the issuing of that letter did not follow the prescripts of
the law relating to procurement
as well as the standing procedures
that needs to be observed.
18.
The
contention by counsel for Computek to the effect that SITA does not
have powers to make any regulations as a body performing
clerical
functions fails to take into account the provisions of Section 23 of
the SITA Act 88 of 1998 which is the basis upon which
the Regulations
were issued. The Regulations therefore have legal standing, are valid
and are binding on all parties transacting
business with SITA. These
Regulations were published under notice R904 of Government Gazette
No. 28221 of 23 September 2005.
19.
As
counsel for SITA submitted, the whole procurement legal framework
which is provided for in Section 217 of the Constitution of
the
Republic of South Africa 1996, the provisions of the
Public Finance
Management Act, 1 of 1999
, the provisions of SITA Act, 88 of 1998 as
well as Regulations promulgated thereunder, read with the standing
regulations of SITA
all constitutes the legal framework within which
SITA conducts its business. Non-compliance with these legal
prescripts renders
the ultimate contract void. It is on this basis
that the Court cannot enforce an unlawful contract. See in this
regard
Municipal
Manager: Qaukeni Local Municipality and Another v FV General Trading
CC
2010 (1) SA 356
SC A
20.
The test for absolution has been outlined in
Gordon
Lloyd Page and Associates v Riveira and Another
[2000] 4 All SA 241
(A)
where
the Court stated that the question to be asked by the Court is
whether there is evidence upon which the Court could or might
reasonably find for the Plaintiff. In other words, has the Plaintiff
made out a
prima
facie
case?
21. Having regard to the
reasons outlined above, I am of the view that Computek as Plaintiff
in this case has not succeeded to make
a case on which a Court might
reasonably find in its favour.
22. In the premises I
make the following order:
Absolution from the
instance is granted with costs.
Judge S P Mothle
The High Court of
South Africa
Gauteng Division,
Pretoria.
Date of hearing: 18-21
February 2014
Date of Judgment: 2 April
2014
For the Plaintiff: Adv.
BG Savvas
Instructed by: Venn
& Muller Attorneys
194 Straw Street Ashlea
Gardens Pretoria.
For the Defendant: Adv.
NH Maenetje SC
Instructed by: Bowman
Gilfillan
165 West Street Sandton
Johannesburg.
Correspondents: Savage
Jooste and Adams
141 Boshoff Street Nieuw
Muckleneuk Pretoria.