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[2014] ZAGPPHC 367
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Kotze v Member of the Executive Council responsible for the Mpumalanga Department of Education in the Mpumalanga Province (17290/13) [2014] ZAGPPHC 367 (17 June 2014)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
NORTH PROVINCIAL DIVISION
CASE NO: 17290/13
DATE: 17 JUNE
2014
In the matter
between:
WILLEM JOHANNES
PAULUS
KOTZE
.......................................................................................
Excipient
and
MEMBER OF THE
EXECUTIVE COUNCIL
RESPONSIBLE FOR
THE MPUMALANGA
DEPARTMENT OF
EDUCATION IN THE
MPUMALANGA
PROVINCE
........................................................................................................
Respondent
In re:
MEMBER OF THE
EXECUTIVE COUNCIL
RESPONSIBLE FOR
THE MPUMALANGA
DEPARTMENT OF
EDUCATION IN THE
MPUMALANGA
PROVINCE
.............................................................................................................................................
Plaintiff
and
WILLEM JOHANNES
PAULUS
KOTZE
......................................................................................
Defendant
JUDGMENT
HASSIM AJ
[1] This is an
exception against particulars of claim. The excipient is the
defendant in the action. I refer to the parties as in
the action.
[2] The plaintiff is
the defendant's former employee. The plaintiff seeks to recover an
amount of R4 691 219.63 from the defendant
which is alleged to be
damage suffered by the defendant’s conduct whilst in
employment.
[3] The plaintiff
pleads that the amount of R4 691 219.63 constitutes irregular and/or
wasteful and/or fruitless expenditure. The
expenditure is alleged to
have been incurred contrary to section 217 of the Constitution of the
Republic of South Africa, 2006,
National Treasury Regulations issued
in terms of “the Public Finance Act” (the plaintiff
intended the reference to
be Public Financial Managment Act, 1 of
1999), the Supply Chain Management of the Department, and the
provisions of section 38
(1) (a) (iii) and (vi) of the Public Finance
Act. These suggest a statutory cause of action.
[4]
The plaintiff also claims that the defendant failed to follow
fc
‘procurement
proceesses set out in the prescripts applicable to the department
The
plaintiff does not identify these ^prescripts", nor does he
identify which of the processes "
set
out in the prescripts"
have
not been complied with. The particulars of claim do not disclose why
and how it is that such failure/s give rise to a cause
of action. Had
more particularity been furnished, this may have given more insight
into the claim.
[5]
The plaintiff then proceeds to aver that the the expenditure could
have been avoided had the defendant “
exercise[d]
a [sic] reasonable care".
This
in my view suggests a claim in delict.
[6] Apart from the
averment which I have summarised in paragraph 5 above, the plaintiff
pleads that the loss was caused among other
things by the following:
(a) the expenditure
(which was a total payment to a service provider of the plaintiff)
was:
(i) inflated;
(ii) was not fair,
equitable, transparent, competitive and/or cost effective.
(b)
alternatively the
"defendant
was responsible for the fruitless expenditure of the aforesaid stated
amount due to omission
,
which is reckless
and negligent
,
to carry out his
duties and
vim
responsible for
the loss of the said amount of money by the Department"
(c)
further alternatively, the defendant was “
responsible
for the authorised and/or fruitless and/or wasteful expenditure of
the aforesaid amount due to an [sic] improper conduct
on his part".
[7] The averments
which I identify in paragraph 6 (b) and (c) are again suggestive of a
claim in delict.
[8] The defendant
has excepted to the particulars of the plaintiffs claim on the basis
that they lack averments necessary to sustain
an action,
alternatively they are vague and embarrassing, alternatively do not
comply with the provisions of rule 18 (10) of the
uniform rules of
court.
[9] Nine grounds of
exception are raised. In light of my finding I do not consider it
necessary to list any of these, nor to identify
all the respects in
which the particulars of claim are wanting.
[10] I am satisfied
that at the very least the particulars of claim are vague and
embarrassing and also lack averments to sustain
a cause of action.
[11] The exception
must succeed. I order as follows:
(a) the exception is
upheld with costs:
(b) the plaintiff is
afforded 15 days within which to amend its particulars of claim, if
it wishes to do so.
S K HASSIM
Acting Judge:
Gauteng North High Court
11 June 2014
Counsel for
excipient: Adv M Snyman
Counsel for
respondent: Adv M Gwala
Date heard: 12 March
2014