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[2012] ZAFSHC 60
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Telkom SA Ltd v Moqhaka Municipality and Others (1082/2011) [2012] ZAFSHC 60 (5 April 2012)
FREE STATE HIGH COURT,
BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Case No.: 1082/2011
In the matter between:
TELKOM SA LTD
….....................................................................
Plaintiff
and
MOQHAKA
MUNICIPALITY
…..........................................
1
st
Defendant
LOHAN CIVIL (PTY)
LTD
…..............................................
2
nd
Defendant
MTHOMBENI AND
ASSOCIATES CC
…..........................
3
rd
Defendant
JUDGMENT:
VAN DER MERWE, J
_____________________________________________________
HEARD ON:
8
MARCH 2012
_____________________________________________________
DELIVERED ON:
5 APRIL 2012
[1] This is an exception
by the third defendant on the basis that the plaintiff’s
particulars of claim do not disclose a cause
of action against it.
[2] The plaintiff’s
claim against all three defendants is solely based on the provisions
of section 25(1) of the Electronic
Communications Act 36 of 2005 (the
Act). This section provides as follows:
“
(1) If an
electronic communications network service licensee finds it necessary
to move any electronic communications facility,
pipe, tunnel or tube
constructed upon, in, over, along, across or under any land, railway,
street, road, footpath or waterway,
owing to any alteration of
alignment or level or any other work on the part of any public
authority or person, the cost of the
alteration or removal must be
borne by that local authority or person.”
[3] In terms of section 1
of the Act “person” means a natural or juristic person.
The terms “public authority”
and “local authority”
appear to be used as synonyms, but it is not necessary to make a
final determination in this
regard as the first defendant, being a
municipality, clearly can be both.
[4] For ease of reference
the requirements for liability in terms of section 25(1) can on the
allegations made by the plaintiff
be broken down to the following:
(i) if an electronic
communications network licensee;
(ii) finds its necessary
to move any electronic communications facility constructed upon,
across or under any road;
(iii) owing to any
alteration of alignment or level;
(iv) on the part of any
local authority or person;
(v) the costs of the
alteration or removal must be borne by that local authority or
person.
[5] The particulars of
claim contain allegations in accordance with (i), (ii) and (iii)
above and sets out the cost of the alteration
or removal. In respect
of (iv) above, the following is pleaded:
“
5.
5.1 During or about April 2008 at
Moakeng, Kroonstad the first defendant, in terms of contract number
MIG/FS/0325/R/ST/07/07, upgraded
its gravel road and storm water
drainage in and around Dingalo Street near Phomolong School, Moakeng,
Kroonstad.
5.2 At all relevant times thereto the
third defendant acted as civil engineer and the second defendant as
contractor for and in
respect of the said project duly instructed and
appointed by the first defendant.
5.3 As a direct result of the said
project and work conducted by the second and third defendants the
alignment and level of the
road and footpath at Dingalo Street near
Phomolong School, Kroonstad, Free State Province were altered.”
[6] On the aforesaid
basis the particulars of claim contain a cause of action in terms of
section 25(1) against the first defendant.
The exception is
essentially that in terms of the particulars of claim the third
defendant acted as agent of the first defendant
within its authority
as such and that as such the third defendant cannot in law be liable
in terms of section 25(1).
[7] In my judgement the
exception is well taken. The particulars of claim must be construed
as stating that the third defendant
at all times acted within the
scope of its authority as agent of the first defendant. This was
correctly conceded by counsel for
the first defendant. Conduct or
behaviour on the part of a person or party means conduct or behaviour
proceeding from that person
or party. See the New Shorter Oxford
English Dictionary, Volume 2, page 2107. At common law every act of
an agent falling within
the scope of the agent’s actual
authority, that does not constitute a delict by the agent, is the act
of the principal only.
See
De Villiers & Macintosh,
The
Law of Agency in South Africa
, 3
rd
Edition page 438;
LAWSA
, Volume 1, 2
nd
Edition, para 213, page 210.
In such case the act of the agent
proceeds from and is on the part of the principal. It is presumed
that a statute does not alter
the existing law more than necessary or
than is clearly stated. The existing law of agency in this respect is
not inconsistent
with the Constitution and there is no need for its
development in terms of sections 173 and 39(2) of the Constitution.
There is
no indication at all in the section of an intention to
depart from this established common law principle. I conclude
therefore
that on the allegations in the particulars of claim the
third defendant (and the second defendant) cannot be held liable to
the
plaintiff in terms of section 25(1) of the Act.
[8] It follows that the
exception must succeed. Both parties before me accepted that leave
should be granted to the plaintiff to
amend its particulars of claim,
if so advised.
[9] The following orders
are issued:
1. The exception succeeds
with costs.
2. The plaintiff’s
claim against the third defendant is struck out.
3. The plaintiff is
granted leave to file amended particulars of claim within 15 days of
date hereof.
_________________________
C. H. G. VAN DER
MERWE, J
On behalf of the
plaintiff: Adv. S.J. Reinders
Instructed by:
Honey Attorneys
BLOEMFONTEIN
On behalf of the third
defendant: Adv. J.J.F. Hefer
Instructed by:
McIntyre & Van der
Post
BLOEMFONTEIN
/eb