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[2009] ZAGPPHC 283
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Setumi Force Security v Minister of Justice And Constitutional Development (11833/2008) [2009] ZAGPPHC 283 (14 August 2009)
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG, PRETORIA)
CASE
NO: 11833/2008
In
the matter between:
SETUMI
FORCE SECURITY
Plaintiff
And
THE
MINISTER OF JUSTICE AND
Defendant
CONSTITUTIONAL
DEVELOPMENT
JUDGMENT
LEDWABA,
J
[1]
The defendant filed an exception to plaintiff’s particulars of
claim alleging that the particulars lacked the necessary
averment to
sustain a cause of action.
[2]
In the defendant’s notice of exception in clause 1.7 of the
defendant’s mentioned a somewhat different ground of
exception
and stated the following:
“
The
Plaintiff has not compiled with the conditions of service relating to
the provision of the contract, ergo, the allegations contained
in the
body of the Plaintiff’s particulars of claim making a case for
unlawful cancellation of the provision of guarding
services contract:
The Security Services RFB No. 2004
29
do not support the prayers concluding the Plaintiff’s
particulars of claim, consequently the Plaintiff’s particulars
of claim are rendered excipiable.”
[3]
The Department of Justice in its letter dated the 18
th
February 2005 confirmed that the plaintiff was nominated to provide
guarding services at selected arrears. The condition stated
in the
said letter, it was submitted by Advocate Lebala SC, representing the
defendant, were complied with.
[4]
In the particulars of claim plaintiff admitted that on the 25
th
February 2000 it signed the Memorandum of Agreement Regarding the
Security Service RFB No. 2004 29, (the agreement) see annexure
B on
pages 123-153 of the indexed pages.
[5]
The relevant special condition that the defendant alleged plaintiff
has not complied with reads as follows:
“
1.
The latest Government Gazette makes provisions for remuneration/wages
of the Security Services Trade.
1.1.
For the purpose of this contract, use will be made of the relevant
Category Security Officers, as defined in the Order made
in terms of
Section 51A(2) of the Labour Relations Act, 1956, as published by
Government
Gazette n. 22873 dated 30 November 2001, as amended.
1.2.
It is expected that the contractor shall pay his/her employees at
least a minimum monthly basic wage, as prescribed for Area
concerned
of the order for the security Officers Trade (Government Gazette no.
25075 dated 13 June 2003, as amended). Employees
must be paid within
seven (7) days in the new calendar month after the service has been
rendered to the previous month. Failing
which, the service will be
terminated with immediate effect.”
[6]
The Department of Justice addressed a letter dated 3 March 2005
to the plaintiff stating the following:
•
“
...It
is a condition of this contract document that your company must
remunerate your employees in terms of Government Gazette n.
25075
dated 13
th
June 2003, as amended.
•
On
perusal of your documentation the Department note that you do not
comply with this requirement.
In
terms of the stipulation of this requirement the Department have no
alternative but to inform you that the Department cannot
continue
with engaging your firm for the provision of said services
(Memorandum of Agreement Regarding-The Security Service RFB
No. 2004
29-page 12, paragraph 1.2).” See annexure D on page 155.
[7]
Advocate Lebala SC informed the court that the in terms of the
agreement between the plaintiff and the defendant, the plaintiff
was
supposed to commence rendering service on 1 April 2005. This simply
implies that the defendant terminated the agreement before
services
were rendered.
[8]
However, Advocate Lebala SC argued that the plaintiff has not
complied with the agreement’s specific condition by not
remunerating its compiled in terms of the provisions of the
Government Gazette no. 25075 and consequently the defendant
discontinued
engaging the plaintiff for the rendering of guarding
services.
[9]
On careful perusal of the agreement I cannot find any evidence to
support the defendant’s allegation that the plaintiff
does not
comply with the special condition in clause
1.2.
of
the special conditions in the agreement.
[10]
I also fail to understand what prompted the defendant to allege that
the plaintiff does not comply because the plaintiff had
not, by then,
started rendering the service and the first wages to be paid to the
plaintiff employees in respect of service to
be rendered basis on bid
were due by the 7 May 2005.
[11]
Of significance is that the plaintiff in paragraph 4 of its
particulars of claim made the following allegation:
“
4.
The Plaintiff
in
writing and as part of the bid 29 submitted, accepted the
Department’s Bid conditions and a copy of the standard Bid
document
containing these conditions.
duly
complied with all its obligations and requirements and
specifications of the Bid 29 and
timeouslv submitted its bid to
the
first Defendant.
”
(own
underlining).
[12]
On careful perusal of the plaintiff’s particulars of the claim
I cannot find anything untoward to support the exception
raised by
the defendant.
[13]
The defendant failed to show and satisfy the court about the averment
that it alleges is lacking in the plaintiffs particulars
of claim.
[14]
The exception raised by the defendant is, in my view frivolous.
[15]
I therefore make the following order:
The
exception is dismissed with costs.
A.
P. LEDWABA
JUDGE
OF THE HIGH COURT