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[2014] ZAGPPHC 438
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Ekurhuleni Metropolitan Municipality v Lesira Teq Proprietary Limited (34176/2013) [2014] ZAGPPHC 438 (2 April 2014)
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
CASE NO: 34176/2013
DATE: 2/4/2014
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO OTHER
JUDGES: YES/NO
(3) REVISED
SIGNATURE:
In the matter
between :
THE EKURHULENI
METROPOLITAN MUNICIPALITY
Applicant
and
LESIRA TEQ PROPRIETARY
LIMITED
Respondent
JUDGMENT
BAM J
1.
On 14 December 2012 the
respondent instituted action against the applicant in the South
Gauteng High Court claiming payment in the
amount of more than R8M
based on the alleged breach of the general conditions of a contract
entered into by the parties in April
2011, concerning the appointment
of the applicant’s appointment to supply, install and maintain
domestic intelligence water
meters.
2.
On 3 June 2013 the
applicant lodged an application (The “
Main
Application
”)
in this Court for the following relief:
1.
Declaring that the
Respondent’s purported appointment by the applicant’s Bid
Adjudication Committee in terms of clause
32 of the applicant’s
Supply Chain Management Policy to supply, install and maintain
domestic intelligent water meters for
a period of three years with
effect from 19 April 2011 is unconstitutional, unlawful and invalid;
2.
Setting aside the
Respondent’s purported appointment referred to in paragraph 1
above;
3.
That the costs of the
application be paid by the Respondent.
3.
The main application
was duly accompanied by the standard founding affidavit.
4.
On 5 July 2013 the
respondent filed its answering affidavit.
5.
It is common cause that
the action in the South Gauteng Court was stayed pending the outcome
of the main application. The main application
has not been enrolled
yet.
6.
On 29 July 2013 the
applicant served on the respondent a Notice of Conditional
Application for an order condoning the filing of
the applicant’s
supplementary founding affidavit.
7.
On 13 August 2013 the
respondent gave notice to the applicant that the applicant’s
Notice of Conditional Application is irregular
and that the applicant
was afforded the opportunity to remove the complaint within 10 days.
8.
The purpose of the
respondent’s supplementary founding affidavit, as stated in the
respondent’s founding affidavit,
was to supplement the grounds
of relief relied upon in the main application.
4.
The additional ground
upon which the respondent intends to rely reads as follows:
“
The
respondent’s appointment which is sought to be set aside in
this application was induced by fraud.”
The affidavit then
proceeds to set out the basis for the said ground.
9.
On 6 November 2013
the respondent filed its application in terms of Rule 30 and 30A for
an order:
1.
Condoning the
respondent’s failure to comply with the time periods prescribed
in Rule 30(2):
2.
That the following be
set aside as irregular steps in terms of Rule 30(3)
(i) The applicant’s
notice of Conditional Application; and
(ii) The respondent’s
supplementary affidavit filed on 29 July 2013.
10.
The respondent’s
grounds to have the applicant’s so called “
conditional
application”
and
the purported supplementary affidavit set aside as irregular steps
are the following:
(i)
No provision is made in
the Rules for “
conditional
applications”;
(ii)
The applicant did not
seek nor was a court order granted allowing it to file a further
affidavit;
(iii)
The respondent will be
prejudiced in that it is not allowed by the Rules to file further
affidavits, (apparently in answer to the
allegations made by the
applicant);
(iv)
That the respondent is
prejudiced in that it “
is
being
compelled
to
make answer to a
process which is in terms of the Rules . . . pro non scripto.
(v)
The contents of the
affidavit deviate almost entirely from the grounds in the founding
affidavit, now introducing a new allegation
of fraud;
(vi)
The new
allegations would result, to the prejudice of the
respondent, in a dispute of fact;
(vii)
The replying affidavit
of the applicant that was filed simultaneously with the supplementary
is “
replete
with new matter”,
apparently
raised in the supplementary affidavit.
11.
The applicant, in its
answering affidavit to the respondent’s application in terms of
Rule 30, clearly abandoned the “
conditional
application”
and consequently the application that the supplementary affidavit be
admitted’ by stating in the answering affidavit to the
respondent’s application in terms of Rule 30, that “
the
contents
of
the
supplementary
founding
affidavit
are
now
contained
in
the
respondent’s
replying
affidavit
and
it
is
therefore
no longer necessary
to proceed with the conditional application
.”
12.
Notwithstanding
the applicant’s grounds for bringing the application in terms
of Rule 30, referred to above, it suffices to
state that , in my
view, the respondent would have been entitled lodge an
application to file a supplementary founding affidavit.
However, due
to the fact that the respondent has abandoned that application, as
alluded to above, I deem it unnecessary to
consider that issue,
including the applicant’s grounds for this application any
further.
13.
The applicant
elected to rely on its replying affidavit to supplement its founding
affidavit. The applicant’s replying affidavit
is now a material
part of the main application and, consequently, the contents
and the evidential value thereof, including
the question whether it
should be admitted, will have to be considered by the court hearing
the main application.
14.
Accordingly this
application should, in my opinion be struck from the roll.
15.
Pertaining to the costs
of this application, it appears that the opposing affidavit
containing the abandonment of the main application,
was served on the
applicant’s attorney of record already on 28 November 2013,
however, without a Notice of Withdrawal thereof.
Notwithstanding, the
applicant decided to proceed with this application. Accordingly, in
my view, it will be fair if the parties
bear their own costs.
16.
Accordingly I
make the following order:
1.
The application is
struck from the roll.
2.
Each party should bear
its own costs.
A
J BAM
JUDGE OF THE HIGH COURT
31
March 2014