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2012
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[2012] ZANCHC 28
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Pemberly Investments (Pty) Ltd v Director-General: Northern Cape Provincial Government NO (1724/2011) [2012] ZANCHC 28 (29 June 2012)
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IN THE HIGH COURT OF SOUTH AFRICA
NORTHERN CAPE HIGH COURT, KIMBERLEY
CASE NO: 1724/2011
HEARD: 25/05/2012
DELIVERED: 29/06/2012
In the matter between
:
PEMBERLEY INVESTMENTS (PTY) LTD
….....................................
PLAITIFF
and
DIRECTOR-GENERAL: NORTHERN CAPE
PROVINCIAL GOVERNMENT (NO).
…......................................
DEFENDANT
JUDGMENT
HUGHES-MADONDO, AJ
This is an application for summary
judgment which was argued on 25 May 2012. The plaintiff seeks the
following order:
“
1.
Payment of the amount of R2 997 321.12 in respect of
short-term rentals as pleaded in paragraph 10 of the Plaintiff’s
Particulars of claim and which amount forms part of the aggregate
claim as contained in the prayers to Plaintiffs Summons;
2. Interest on the aforesaid
amount at the a rate of 15.5% per annum a tempore morae to date of
final payment;
3. Costs of suit;
4. Further and/or alternative
relief.”
Advocate C JBresler appeared on
behalf of the plaintiff and Mr K D Job appeared for the defendant.
The plaintiff entered into a
written services agreement (‘the services agreement”)
with the Department of Transport
and Public Works of the Northern
Province (“the Department”) on 31 October 2001. In terms
of the services agreement
the Department appointed the plaintiff to
provide services according to the terms and conditions set out in
the services agreement.
The agreement came to an end and was
terminated on 31 October 2006. On 31 July 2008 a revival agreement
was concluded between
the Department and the plaintiff. The
plaintiff alleges that the Department breached the revival agreement
in that it:
“
1.
Failed to return all the plaintiff’s vehicles which were in the
defendant’s possession in terms of the agreement,
on or before
31 December 2008; and
2. Failed to return all the
vehicles to the plaintiff free of any damage or defects, fair wear
and tear excepted.”
The plaintiffserved summons onthe
Department on 20 October 2011. The cause of action as set out in the
summons (clause 11.1.2
and 12.2 of the revival agreement) is in
essence in these terms:
Clause 11.1.2 of the revival
agreement provides that those vehicles not returned to the
plaintiff by 31 December 2008 would
be considered as being
short-term rentals and as such the Department undertook, on demand,
to pay the prevailing short-term
rental rates as determined by the
plaintiff.
Clause 12.2provides that those
vehicles returned by the Department with damages and defects, not
covered by insurance or relating
to fair wear and tear, which have
not been repaired by the Department prior to them being returnedthe
Department would be liable,
on demand, to pay such repair costs.
In the summons the plaintiff cited
the defendant as follows:
“
2.1 The
defendant is
THE
DIRECTOR-GENERAL: NORTHERN CAPE PROVINCIAL GOVERNMENT N.O.
,
in his capacity as representative of the Northern Cape Provincial
Government/ Administration, a provincial government/administration
established in terms of section 7(2) read with the schedules thereto
of the Public Service Act, 1994(proclamation 103 as published
in the
Government Gazette 15791 of 3 June 1994).”
It is trite that in terms of Rule
32 of the Uniform Rules of Court a court may grant summary judgment
in respect of claims based
on a liquid document, for a liquidated
amount, for delivery of specified movable property and for ejectment
together with interest
and costs.
Adefendant when opposing an
application for summary judgment is required to satisfy the court
that he or she has a
bona fide
defence to the action.The
defendant in its papers must disclose fully the nature and grounds
of its defence and the material
facts that it relies upon. See
MAHARAJ V BARCLAYS NATIONAL BANK LTD
1976 (1) SA 418
(A) at 426.
In essence the set of facts set out must be such that if proven at
trial would constitute a defence to the claim of the plaintiff.
See
BREITENBACH V FIAT SA (Edms) Bpk
1975 (2) SA 226
(T) at 228B-D
and D-E; TESVEN CC AND ANOTHER V SA BANK OF ATHENS 2000(1) SA 268
(SCA).
If the defendant fails to set out a
bona fide
defence or to raise a triable and arguable issue
and the plaintiff can establish its case clearly, then summary
judgment should
be granted. On the other hand if the plaintiff has
an unanswerable case and it is reasonably possible that the
defendant has
a good defence, then the defendant must be granted
leave to defend. See
MARSH AND ANOTHER V STANDARD BANK
2000 (4)
SA 947
(W) at 949-950.
In the defendant’s opposing
papers resisting summary judgment itfailed to raise the issue of
locus standi
.However it did so in its heads of argument. It
was argued on behalf of the plaintiff that the defence raised by the
defendant
was from the bar and as such was not before this courtand
should therefore not be entertained. I am of the view that the
locus
standi
issue is a valid one and needs to be considered in order
to determine whether indeed the defendant has raised a triable issue
and whether the courts order will be effective and meaningful.See
JOOBJOOB INVESTMENTS (PTY) LTD V STOCKS MAVUNDLAZEK JOINT VENTURE
2009 (5) SA 1
(SCA) at 11G-12D.
The consideration being that if
the wrong party has in fact been cited the plaintiff will be in
possession of a useless judgment
that it could not enforce.
I now turn to deal with the issue
of
locus standi.
The defendantrepresentative argued that the
plaintiff cited the incorrect party as defendant and places reliance
on the State
Liability Act 20 of 1957 (“the
State Liability
Act&rdquo
;). It conceded that two Heads of Department of Transport
and Public Works, namely Patience Mokhali and Motlalepula Elias
Selemela,
represented the Province of the Northern Cape in
concluding the services and revival agreements between the parties.
Even so,it was submitted on behalf
of the defendant that in terms of section 125 of the Constitution
the executive authority vests
with the Premier and Members of the
Executive Council (MEC’s).Further that in terms of
section 2
of the
State Liability Act: “
...In
any action or
proceedings instituted by virtue of the provisions of
section 1
, the
executive authority of the department concerned must be cited as
nominal defendant or respondent.”
In a nutshell the
argument on behalf of defendant was that the plaintiff’s claim
was flawed as it was instituted against
the wrong defendant.
Lastly, the defendant’s
representative refer to the dicta stated in
GULF STEEL (PTY) LTD V
RACK-RITE BOP (PTY) LTD AND ANOTHER
1998 (1) SA 679
(O) at 683I-J
AND 684A-B
,where it was held that whendealing with a summary
judgment application the following considerations are
important:“
...There are accordingly two basic requirements
that the plaintiff must meet, namely
a clear claim and
pleadings which are technically correct before the Court. If either
of these requirements is not met, the Court
is obliged to refuse
summary judgment
. In fact before even considering whether
the defendant has established a bona fide defence, it is necessary
for the Court to
be satisfied that the plaintiff’s claim has
been clearly established and its pleadings are technically in
order.”
[My emphasis]
Therefore before a court can
consider whether the defendant has a
bona fide
defence, ithas
to be satisfied that theplaintiff’s pleadings were technically
sound. It was submitted on behalf the defendant
that in this
instance this cannot be so, in light of the provisions of the
State
Liability Act, in
that the Premier should have been cited as
defendant instead.
Counsel for the plaintiff argued
that there was no statute regulating the manner in which a
provincial administration as opposed
to a department, sues or has to
be sued. It was further argued that even though actions have been
brought against and by the
Premier acting on behalf of the
administration, it has also been brought against the administration
itself. Reference was made
to Clause 1.2.20 of the services
agreement which states that:“
NCPG means the Province of the
Northern Cape, acting through its Department of Transport and Public
Works”.
Assuch, counsel argued, the applicant contracted
with the Northern Cape Province and not with the Department of
Transport and
Public Works. Finally, as regards section 125 of the
Constitution, counsel conceded that whilst the sectiondoes vest
executive
authority of the province in the Premier,in this instance,
this has no bearing on the
State Liability Act, as
it is only
applicable to a department being sued and not the province.
I set out the pertinent portions of
section 125 (1) and (2) of the Constitution:
“
(1)
Theexecutive authority of a province is vested in the Premier of that
province.
(2) The Premier exercises
authority, together with the other members of the Executive
Council,by-
(a) implementing provincial
legislation in the province;
(b) implementing all national
legislation within the functional
areas listed in Schedule 4 or 5
except where the
Constitution or an Act of
Parliament provides otherwise;
(c) administration in the
province, national legislation outside
the functional areas listed in
Schedule 4 and 5, the
administration of which has been
assigned to the provincial
executive in terms of an Act of
Parliament;
(d) developing and implementing
provincial policy;
(e) co-ordinating the functions
of the provincial administration
and its departments;
(f) preparing and initiating
provincial legislation; and
(g) performing any other function
assigned to the provincial executive in terms of the Constitution or
an Act of Parliament”.
Section 2
of the
State Liability
Act states
that proceedings are to be instituted against the
executive authority of the department concerned.
Section 4A
of the
State Liability Act distinguishes
between a national department and
a provincial department and defines what executive authority means.
Section 4A
(a) pertains to a national department and 4A (b) makes
reference to a provincial department, as in this instance.
Section
4A
(b) states that executive authority means the Executive Council
of that province who is accountable to the provincial legislature
for that department.
Section 132 of the Constitution,
sets out that the Executive Council of a province comprises the
Premier, as head of the Council,
and no fewerthan five and no more
than ten members appointed by the Premier from the provincial
legislature. It is the Premier’s
duty and function to appoint
the Executive Council members (MEC’s), assign their powers and
functions and dismiss them.
Section 133 of the Constitution,
goes further, to state that the members of Executive Council (MEC’s)
are responsible for
the functions of the executive assigned to them
by the Premier. They are accountable collectively and individually
to the legislature
for the exercise of their powers and the
performance of their functions.
As is set out in section 132 and
133, above, the Premier is head of the Executive Council.
Section 2
of the
State Liability Act stipulates
that the Premier is the
executive authority and he exercise such together with other members
of the Executive Council.The Executive
Council members co-ordinate
the functions of the provincial administration and departments and
as such they perform functions
that are assigned to the provincial
executive
(section 125
of the Constitution).The Premier is therefore
the functionary to whom the Executive Council members are all
answerable to.
The plaintiff cited the
Director-General: Northern Cape Provincial Government as a
defendant. Interms of thePublic Service Act
103 of 1994, section
7(3) (c) read with Schedule 1 Column’s 1 and 2, there is the
Office of the Premier: Northern Cape
and head of that office is the
Director- General: Office of the Premier of the Northern Cape. To my
mindthe applicant must have
intended to cite the Director-General:
Office of the Premier instead of Director-General: Northern Cape
Provincial Government.Section
7 (3) (c) sets out the duties of the
head of the Office of the Premier, that is the Director-General. One
of these duties is
Secretary to the Executive Council of the
province. Now as the Premier is head of the Executive Council and
its members then
it stands to reason that the Director-General:
Office of the Premier is the “departmental” Secretary to
the Premier
as head of the Executive Council and its members.
In light of the above I find that
the plaintiff who contracted with the Province of the Northern Cape,
through its Department
of Transport and Public Works, should have
sued the head of the Executive Council through its Executive council
member (MEC)
responsible for the administration and functioning of
that specific departmentas is envisaged by
section 2
of the
State
Liability Act, and
not the Premier’ and Executive Councils
Secretary, the Director-General.
It is evident that in terms of
Gulf
Steel (Pty) Ltd
above,the plaintiff’s citation of the
Director-General: Northern Cape Provincial Government (NO)renders
the plaintiff’spleadings
technically defective and as such I
am obliged to refuse summary judgment.
In summary the technical defective
of the incorrect citation is not the only aspect that is fatal to
this application. In addition
the claim set out in the summons read
with the defence disclosed in the defendants opposing affidavit does
not constitute a claim
for a liquidated amount in money. The
plaintiff alleges that the defendant failed to return all its
vehicles however puts up
documentation that indicates that some
vehicles were in fact returned by the defendant. An exercise would
have to be conducted
to establish the total number of vehicle issued
to the defendant against those returned and if returned, when
exactly where they
return. A comparison would have to be done
against the plaintiff’s documents of the vehicles returned
which it had provided
to the defendant. Further, it will have to be
established which vehicles were outstanding or not returned,if any,
as at 31 December
2008. It is evident to me that the proof of the
plaintiff’s claim cannot be established promptly and would
require a protracted
exercise to be conducted to establish what in
fact constitutes the plaintiff’s claim and as such I am of the
view that
the claim is not one that can be said to be liquidated.
See
NEVES BUILDERS &DECORATORS V DE LA COUR
1985 (1) SA 540
(C) at 543C-544F; TREDOUX V KELLERMAN
2010 (1) SA 160
(C) at
166G-1667C
.
In the circumstances I find that
the plaintiff has not made out a case for summary judgment to be
granted in terms of rule 32
of the Uniform Rules of Court.
I make the following order:
The application for summary
judgement is refused.
Leave is granted to the
defendant to defend.
Costs are reserved for
determination by the trial court.
___________________________________
W HUGHES-MADONDO
ACTING JUDGE
Northern Cape High Court,
Kimberley
:HgiHIghosts of such procee
APPEARANCE
On behalf of the Applicant
:
Adv. C J BRESLER
Instructed by
VAN DER WALL &
PARTNERS
On behalf of the Respondent
:
MR
K D JOB
Instructed
by
JOB ATTORNEYS