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[2012] ZAFSHC 7
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Tarfix (Pty) Ltd v MEC, Department of Public Works and Rural Development, Free State Province and Another (3452/2010) [2012] ZAFSHC 7 (2 February 2012)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Case No. : 3452/2010
In
the matter between:-
TARFIX
(PTY) LTD
…...................................................................
Plaintiff
and
MEC,
DEPARTMENT OF PUBLIC WORKS
AND
RURAL DEVELOPMENT, FREE STATE
PROVINCE
…......................................................................
1
st
Defendant
THE
DIRECTOR GENERAL OF THE
DEPARTMENT
OF PUBLIC WORKS AND RURAL
DEVELOPMENT,
FREE STATE PROVINCE
…................
2
nd
Defendant
_____________________________________________________
JUDGMENT BY:
MATHEBULA, AJ
_____________________________________________________
HEARD ON:
22 SEPTEMBER 2011
_____________________________________________________
DELIVERED ON:
2 FEBRUARY 2012
_____________________________________________________
[1] The plaintiff is
claiming provisional sentence relying on an agreement between the
parties. The relevant aspect is the “payment
certificate”
by an engineer alleged to be the agent of the defendants. This aspect
is denied by the defendants. The other
defence raised by the
defendants is that there is a counterclaim for damages as a result of
breach of the provisions material to
the agreement by the plaintiff.
[2] This procedure
provides a summary remedy to the creditor in possession of a liquid
document. In defence, the defendants must
file an opposing affidavit.
In this matter the opposing affidavit including annexures comprises
pages 256 to 330 of the record.
As this is part of the record, I do
not intend to repeat them.
[3] A lengthy period
elapsed after the filing of the opposing affidavit, before the
defendants set the matter down for hearing.
It appeared as though the
interest of the plaintiff in the matter has waned.
[4] In his submission Mr
Williams was of the view that I grant an order that the defendants
file a plea within twenty (20) days
and that the matter proceed to
trial. This has been the proposal made by the instructing attorneys
in a letter dated the 19
th
September 2011 to the
Defendants’ attorneys. The crux of his submission is that the
defendants deal mainly with the question
whether the agent who signed
the documents had the necessary authority or not. The issue of
whether the “payment certificate”
relied upon is a liquid
document or not is a peripheral issue. He therefore requested for an
order as outlined above and that the
cost be costs in the cause.
[5] Mr Fischer submitted
that that matter be dismissed with costs. He argued that the
plaintiff bears the onus of proof on a balance
of probabilities that
the agent in question had the necessary authority to sign the
“payment certificate”. In essence
the defendant was
entitled to raise the defence denying that the agent had the
necessary authority to sign the “payment certificate”.
He
submitted that the said agent one Johannes Steyger did not have the
necessary authority. He was not in the employ of the defendants
but
that of the plaintiff. The “payment certificate” relied
upon was not in fulfilment of the provisions of the agreement.
As a
result the “payment certificate” relied upon could not be
termed a liquid document.
[6] A liquid document is
described as a “written document signed by the defendant or his
agent evidencing an acknowledge of
indebtedness which is
unconditional and of a fixed amount in money”.
See Civil Procedure in
the Superior Court – L.T.C. HARMS at B-78.
The relevant example in
this matter of a liquid document is an Engineer’s “payment
certificate”. One of the key
requirements is that the engineer
who signed the certificate must be the authorised agent of the
defendant(s).
[7] As Mr Fischer
correctly agued out, the plaintiff must discharge his onus on a
balance of probabilities. Among other the plaintiff
bears onus
regarding the authenticity of the defendants’ agent’s
signature and authority of the defendants’ agent.
It is on
these aspects that the plaintiff falls short. On page 83 of Annexure
“A” the Engineer is described as the
Chief Director:
Expanded Public Works Programme (EPWP). This is a government
official. This aspect is dealt with at length in an
affidavit deposed
by the Director: EPWP namely Zwelinzima Godfrey Jacobs. He also deals
with the possible counterclaim by the defendants.
[8] In totality the
document relied upon is not a liquid document as it does not meet the
requirements. In this regard the plaintiff
has not discharged the
necessary onus of proof on a balance of probabilities.
[9] As far as the costs
are concerned, I could find no reason to depart from the rule. The
costs follows the event.
[10] Accordingly, I make
the following order:-
Provisional sentence
is dismissed with costs.
___________________
M.A. MATHEBULA, AJ
On behalf of the
plaintiff: Adv. A. Williams
Instructed
by:
P
Yazbek
Lovius Block Attorneys
31 First Avenue
Westdene
BLOEMFONTEIN
Ref: MV/SJ/H2127/0160
On behalf of the
defendants Adv P.U. Fischer S.C
Instructed
by:
TJ
Moleko
State Attorney
11
th
Floor
Fedsure Building
49 Maitland Street
BLOEMFONTEIN
REF: 106/201000884 P5
T/ek