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South Africa: North Gauteng High Court, Pretoria
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[2009] ZAGPPHC 277
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Mo Africa Africa v City of Tshwane Metropolitan Municipality (22515/2003) [2009] ZAGPPHC 277 (25 September 2009)
HIGH
COURT OF SOUTH AFRICA
NORTH
GAUTENG PRETORIA
CASE
NO: 22515/2003
MO-AFRICA-AFRICA
PLAINTIFF
V
CITY
OF TSHWANE METROPOLITAN MUNICIPALITY
DEFFENDANT
CIVIL
TRIAL
CORAM:
- SAPIRE AJ
JUDGMENT
Plaintiff
is a close corporation the business of which was to provide cleaning
services. The Defendant is the City of Tshwane Metropolitan
Municipality.
On
17
th
February the parties entered into a written contract
when the defendant accepted Plaintiffs tender to furnish a “community
based refuse removal service”. Although the plaintiffs summons
and statement of claim states that a copy of the contract
is attached
thereto, this is not correct for what is attached is a copy of the
letter from the defendant accepting the tender.
The full terms of the
tender and the complete contract are to be found as an annexure to
the plea and in the tender document which
was produced in evidence as
an item in a bundle prepared by the Plaintiff.
The
Plaintiff, in amended particulars of claim filed during the hearing,
alleges that the Defendant unilaterally unlawfully and
without due
notice to the Plaintiff terminated the contract by means of a letter.
The breach on which the Plaintiff relies is described
in paragraph 7
of the amended particulars of claim as
“
7.1
He
[i]
failed
to give the defendant the written instructions and or 3 (three/
opportunity during which to rectify a breach if any;
7.2
He failed to give Plaintiff 30(thirty) day’s written notice
while he should have done so”
At
the commencement of the trial, the Plaintiff had not filed the
amended particulars of claim and on reading the papers as they
were
it appeared that plaintiff was making two claims arising from
breaches of the same contract. Only when I observed that the
evidence
being led by Plaintiffs counsel did not accord with the allegations
upon which the claim was being made was the amended
plea filed. One
of the original claims was not persisted in, and the only issues
before the court were those arising from the amended
particulars as
answered in the plea.
The
principal obligation undertaken by the Plaintiff was as alleged in
the amended particulars of claim was :
That
the Plaintiff would remove refuse for over a period of 3 (three)
years with effect from the 1
st
of March 2003 or nearest
date for units 4, 16, and 17 at a firm price of R15 000(fifteen
thousand Rand) per block per month
It
is clear from the terms of the contract that the three units
mentioned constituted the block. The Plaintiff claims as damages,
payment of an amount of R1 744 200 which it says it would have
received in respect of units 4, 16,and 17 but for the wrongful
termination of the contract.
[ii]
In the original summons the amount claimed was for R495 000. 00
representing the amount the Plaintiff would have received in respect
of units 4, 16, and 17 but for the unlawful termination of the
contract. There is no explanation for the vast difference between
the
two amount claimed. It is after all only a simple arithmetical
calculation.
The
parties agreed to separate the issues of wrongful breach and damages
and I was requested to give a decision on the first only.
It was a
matter of common cause that the Defendant terminated the contract on
the25th June 2003. Defendant alleges in its plea
that:
Plaintiff
did not fulfil its obligations in terms of the agreement Annexure
“PCC1” and the Defendant, as it was entitled
to,
cancelled the agreement with the Defendant on 25
th
June
2003.
Defendant
apparently (so it emerged from the evidence) relied on Paragraph 11.4
of the agreement which reads
11.4
a) in addition to any other remedies for breach of contract which are
set out in this agreement, the Tshwane Municipality snail
be entitled
to regard any breach of this contract as a material breach entitling
n to
1)..........
ii)
Forthwith cancel the contract and/or recover any damages it may have
sustained consequent to any breach thereof
Plaintiff
appeared to consider that Defendant’s right of cancellation was
limited to what is provided in 11.1 which also provides
for
cancellation on breach after notice, but must be read as being
complementary to 11.4. The agreement is badly drawn having some
seemingly overlapping provisions on this and other topics. It is
however clear the Defendant could treat any breach as material
and on
the basis thereof terminate the agreement summarily without notice
and without affording the Plaintiff an opportunity of
remedying the
breach. The question to be decided therefore was whether the
Plaintiffs termination was in breach of the agreement,
the Plaintiff
having complied with its obligations thereunder.
At
the outset of the hearing I raised the question of onus, and on which
of the parties it rested. After hearing brief argument
I ruled
without deciding the question of onus that the Plaintiff should
begin.
For
the plaintiff three witnesses were called of which John Sibanyoni, a
member of the Plaintiff and chief if not the only, role-player
in its
dealings with the Defendant, was the first. Sibanyoni testified that
having contracted with the Defendant, by him personified,
acquired a
tractor and trailer and employed a complement of six workers who
carried out the duties assumed by the Plaintiff in
terms of the
contract. His evidence was directed to denying that the plaintiff had
been in breach of its contract.
From
cross examination it emerged that the defendant was relying on a
number of specific instances when the service had broken down,
or
been rendered incompletely, causing complaints to be received.
Sibanyoni denied all knowledge of these complaints. He further
denied
all knowledge of the complaints which had been lodged in his file
with the supervisor appointed by the Defendant. If indeed
Sibanyoni
was unaware of of the complaints and the instances of defective
performance by the plaintiff, his ignorance, the defendant
attributed
to Sibanvoni’s failure to keep constant and continuous contact
with the Defendant, as undertaken in terms of the
contract.
The
Plaintiffs business in providing the services contracted for, was
conducted in a most informal and casual fashion. It had apparently
no
office premises, kept no books or records and did not comply with
many of the duties which the law prescribes in respect of
employment
of staff, and taxation. In this it was in breach of the agreement on
which it relies. This was however not the breach
on which the
Defendant based its case, but is indicative of the scant respect with
which the Defendant treated its obligations.
Sibanyoni
was not an impressive witness. The weakness of his blanket denial of
any failure on his part to comply with the provisions
of the
agreement, is acerbated by his denial of the receipt of a letter
dated 13
th
February 2003, which set out the times and areas when and where the
clearances were to be done. The letter bears, what appears
clearly,
to be his signature acknowledging receipt. Yet he says the signature
is not his. The evidence for the defendant is that
the letter was
handed to him and signed for by him. It is difficult to comprehend
why anyone should have wanted to forge Sibanyoni’s
signature to
an innocuous document from which no benefit could have been obtained.
He
also denied receipt of a letter from the Defendant dated 4
th
April 2003 in which the Defendant’s failure to give
satisfactory service were drawn to his attention. Jacko van der Vywer
who testified for the plaintiff claimed to have handed the letter to
Sibanyoni personally and to have witnesses him acknowledging
receipt
thereof by placing his signature thereon. The signature is indeed a
scribble quite unlike the clearly written name appearing
on the other
letter to which reference has been made. Sibanyoni denied both
receipt of the letter and his signature. So unalike
was it the Van
Den Vywer suspected at the time that Sibanyoni was disguising his
signature to be able to deny it later. The issue
here is less clear
cut but in the light of the totality of the evidence Defendant’s
version is to be preferred by far.
Defendant
called two further witnesses in support of its case. They however
were not helpful in deciding whether the Defendant had
failed to give
a satisfactory service. They were unaware of any breaches by
plaintiff, but this of course does not mean that there
were not any.
The
Defendant called Jacko van der Vywer, a council employee tasked with
the supervision of community based services including those
which the
Plaintiff had undertaken to render. Sibanyoni was to have been in
continual contact with him and to have been contactable
at any time
when he was needed. He testified that Sibanyoni was frequently
uncontactable when complaints were received.
Van
der Vywer called by the Defendant, recounted, with reference to
documents contained in bundle “B” by which he supported
his evidence the history of Plaintiffs unsatisfactory performance of
the contract. He told of the difficulties he had in contacting
Sibanyoni when the necessity for doing so arose because of complaints
from residents of the non collection of the refuse from their
homes..
This was reflected in a letter, number 1 in the bundle from the
Defendant to the Plaintiff dated 10
th
January 2003.
He
told of the instances, again with references to documentation when
refuse removal had not taken place. On one occasion, when
Plaintiff
had failed to remove the refuse and complaints were received
Sibanyoni was uncontactable and the Municipality had to
use its own
recourses to do the work which should have been done by the
Plaintiff.
It
is not necessary to deal specifically and separately with each
instance of non performance
by
the plaintiff described by Van den Vywer. His account is largely
supported by the documentation and outweighs Sibanyoni’s
denials.
Each
of the failures by Plaintiff to carry out its obligations was
regarded as material as contemplated in the agreement. Plaintiffs
persistence in non performance persuaded the Defendant to terminate
the contract as it was entitled to do.
The
evidence adduced by the Defendant far outweighs that of the Plaintiff
both in quality and cogency. No conclusion other than
that to which I
have come is possible on a consideration of the body of evidence
placed before the court.
Defendant
s termination was not a breach of the contract and Plaintiff has no
claim arising therefrom.
There
will therefor be judgment for Defendant dismissing Plaintiff’s
claim with costs.
[i]
(sic the Defendant is
not a male individual)
[ii]
Plaintiffs claim
overlooks the terms of the agreement, which in dealing with the
duration of the contract provide that the period
was to be three
years, but terminable by either party at any time on one months’
notice. The claim also does not appear
to take into account that the
plaintiff would have expenses in carrying out its obligations. The
damages to which Plaintiff would
be entitled could not exceed the
profit he would have made during one month’s operation.