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[2012] ZAFSHC 17
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Roadmac Surfacing (Pty) Ltd v Construction and Education and Training Authority (4517/2011) [2012] ZAFSHC 17 (16 February 2012)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Case No. : 4517/2011
In the matter between:-
ROADMAC SURFACING
(PTY) LTD
….....................................
Plaintiff
(REGISTRATION NO:
1992/001299/07)
and
THE CONSTRUCTION
EDUCATION AND
TRAINING AUTHORITY
….....................................................
Defendant
_____________________________________________________
HEARD ON:
9
FEBRUARY 2012
_____________________________________________________
JUDGMENT BY:
PHALATSI, AJ
_____________________________________________________
DELIVERED ON:
16 FEBRUARY 2012
_____________________________________________________
[1] This is an
application for summary judgment. The plaintiff’s claim against
the defendant is for payment of R504 400-00,
being the outstanding
amount for services rendered by the plaintiff in terms of the written
agreement, concluded on 6 July 2010.
[2] The plaintiff avers
in the particulars of claim that on 6 July 2010, at Bloemfontein, the
plaintiff, represented by C. Steyn
and the defendant, represented by
P. Maoko, concluded a written agreement, a copy of which is attached
to the particulars of claim.
[3] The defendant filed
the opposing affidavit in which it raises its defence, which consists
of three legs, namely:
3.1 that the document
attached to the Plaintiff’s particulars of claim does not
constitute a legally binding agreement, as
it was not signed by the
respondent or by anyone on its behalf;
that, in the
alternative, should the court find that the said document
constitutes a legally binding agreement, then the plaintiff
is in
terms of clause 20 of the said agreement, precluded from issuing
summons in court before referring the dispute for arbitration;
and,
thirdly, that the
respondent is not in possession of the plaintiff’s invoices
and reports as required by the agreement
before payment could be
made. Further, that the defendant is conducting a forensic
investigation of the suspicious projects
it has funded and that the
plaintiff’s claim is also subjected to such investigation.
[4] On the first issue,
it is common cause that
ex facie
the document, no one signed
the said document on behalf of the defendant, as no signature appears
on the space left for signature
by the representative of the
defendant.
[5] Mr. Hefer, appearing
on behalf of the plaintiff, argued that the signature of both parties
is not required by statute for the
agreement to be binding on the
parties.
[6] It is correct that,
save as are required by statute or custom, a contract does not have
to be in writing for it to be binding
on the parties; but, the
parties may agree that their agreement shall not be binding until it
has been put in writing and signed
by themselves. The writing and
signature is then a condition precedent to the validity of the
contract.
GOLDBLATT v FREEMANTLE
1920 AD 123
at
128-129; and
WESTINGHOUSE BRAKE AND EQUIPMENT (PTY) LTD v
BILGER ENGINEERING (PTY) LTD
1986 (2) SA 555
(A) at 573.
[7] Paragraph 4.1 of the
agreement relied upon by the plaintiff reads as follows:
“
This
Agreement shall become of force and effect on the latter date of
signature
hereof
by
both
parties
subject to the terms and conditions set out in this Agreement”.
(my
own emphasis).
[8] On the basis of this
clause, I am satisfied that the defendant has discharged its onus
that the parties agreed that their agreement
must be in writing and
signed by both parties.
[9] In the light hereof,
I do not find it necessary to deal with other legs of the defendant’s
defence, as, only on the basis
hereof, summary judgment cannot be
granted.
[10] The further issue
that I have to deal with is the question of costs.
[11] Mr. Snellenburg, who
appeared on behalf of the defendant, argued that the court should,
when dismissing the application for
summary judgment, do so with
costs, instead of the customary order that costs be costs in the
cause.
[12] He based his
argument on the fact that the plaintiff should not have proceeded
with the application on an opposed basis, as
it became aware of the
defendant’s defence, after receipt of the opposing affidavit.
He referred the court to the case of
TREDOUX v KELLERMAN
2010 (1) SA 160
(CPD).
[13] In the said case,
however, the court decided that the appellant’s claim did not
fall within the meaning of Rule 32 (1)
of the Uniform Rules of Court,
in that the said claim was not for a liquidated amount in money, nor
was it based on a liquid document.
[14] The court further
found that the appellant knew of the defence of the respondent before
the appellant issued summons.
[15] There is no evidence
in this case that the plaintiff knew the defendant’s defence
before it issued summons. As stated
before, Mr. Snellenburg’s
argument is that the plaintiff be ordered to pay the costs occasioned
by the matter being heard
on an opposed basis.
[16] I do not think that
a party should be mulcted with costs only for proceeding with a case
that he or she believes to be a good
one, at this stage of the
proceedings. I am therefore not persuaded to depart from the
customary cost order in applications for
summary judgment.
[17] I consequently make
the following order:
Application for summary
judgment is dismissed;
Defendant is granted
leave to defend the matter; and
Costs of this
application will be costs in the main case.
_________________
N.W. PHALATSI, AJ
On
behalf of plaintiff: Adv.J.J.F. Hefer
Instructed
by:
L
& V Attorneys
BLOEMFONTEIN
On
behalf of defendant: Adv. N. Snellenburg
Instructed
by:
Phatshoane
Henney Inc
BLOEMFONTEIN
/sp