Ruwacon (Edms) Bpk v Departement van Openbare Werke (7382/08) [2009] ZAFSHC 25 (5 March 2009)

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[2009] ZAFSHC 25
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Ruwacon (Edms) Bpk v Departement van Openbare Werke (7382/08) [2009] ZAFSHC 25 (5 March 2009)

IN
THE HIGH COURT OF SOUTH AFRICA
(FREE
STATE PROVINCIAL DIVISION)
Case No. : 7382/08
In
the
matter
between:-
RUWACON
(EDMS) BPK
Applicant
versus
DEPARTEMENT
VAN OPENBARE WERKE
Respondent
_____________________________________________________
CORAM:
H.M.
MUSI, JP
_____________________________________________________
HEARD
ON:
26
FEBRUARY 2009
_____________________________________________________
DELIVERED
ON:
5
MARCH 2009
_____________________________________________________
JUDGMENT
_____________________________________________________
H.M.
MUSI, JP
[1] In
this matter and that of Ruwacon (Edms) Bpk
versus
Department
of Public Works, Case No. 7382/2008 I granted the orders prayed for
in the applications but indicated that I would give
a short written
judgment dealing with the issue of jurisdiction that arose in these
matters. This then is the judgment.
[2] The
applicant in this matter is a company with limited liability
registered in accordance with the company laws of the Republic
of
South Africa with its principal place of business situated in
Bloemfontein. The respondent is the Department of Public Works
of
the Republic of South Africa, a national State department with its
head office in Pretoria, Gauteng Province. The applicant
claims from
the respondent by way of motion proceedings payment of an amount of
R270 460,51 together with ancillary relief.
[3] The
claim arises from a tender contract entered into by and between the
parties during 2004 in terms of which the applicant
provided certain
services on behalf of the respondent, which included repairs and
maintenance of the premises of the Waterval Prison
in KwaZulu Natal
under a project dubbed “Contract 2 Ref. WCS 037 435”. Payment to
the applicant was to be made upon production
of a certificate issued
by the engineer appointed for the project. The applicant avers that
the engineer has issued the requisite
certificate for the amount of
R270 460,51, which amount has become due and payable but that demand
notwithstanding, the respondent
has failed to effect payment. The
applicant also alleges that interest on the above amount fixed in
terms of the contract is due
and payable.
[4] The
notice of motion was served on the State Attorney in Bloemfontein and
the latter served and filed a notice of intention
to oppose but did
not file any answering affidavit or any further pleading.
Accordingly the applicant, acting in terms of Rule
6(5)(f) of the
Uniform Court Rules, set the matter down for hearing on 26 February
2009. Despite service of the notice of set-down,
no-one appeared on
behalf of the respondent on the date of hearing.
[5] Mr.
Zietsman appeared for the applicant and I raised with him the
question of whether this court has jurisdiction in the matter.
My
concerns arose out of the following facts:
(a) It
appeared that the contract was not concluded within the jurisdiction
of this court, nor was it,
ex
facie
the papers, to be performed within the area of this court.
(b) The
respondent was a
peregrinus
of this court. Surely the fact that the notice of motion was served
on the State Attorney in Bloemfontein and the State Attorney
had
authority to accept such service on behalf of the respondent could
not in itself found jurisdiction.
[6] In
responding to my query, Mr. Zietsman referred to a letter dated 9
June 2004 addressed by the respondent’s Director-General
to the
applicant, annexure “F” to the founding affidavit, wherein the
respondent’s acceptance of the applicant’s tender
was
communicated to it by registered post. Counsel suggested that the
tender contract would have been concluded in Bloemfontein
when the
letter of acceptance reached the applicant. Counsel indicated,
however, that that was not the ground upon which he relied
for the
submission that this court has jurisdiction. I may add that it is as
well that counsel did not rely on such proposition
because it is
clearly wrong. The contract was concluded at the moment that the
acceptance was posted in Pretoria. See
COLOURED
DEVELOPMENT CORPORATION LTD v SAHABODIEN
1981 (1) SA 868
(CPD) at 873A – B.
[7] I was referred to a
passage in the founding affidavit which appears under the heading
“Die Algemene Kontrakvoorwaardes 1990”.
It reads:
“
9.3 Aangesien die Applikant se
geregistreerde hoofkantoor asook vernaamste plek van besigheid in
Bloemfontein is, en die Applikant
se bankrekening ook in Bloemfontein
bedryf word, sou betaling van enige verskuldigde bedrae aan die
Applikant te Bloemfontein plaasvind.”
Based on this counsel
submitted that payments to the applicant were to be made in
Bloemfontein and that this suffices to confer
jurisdiction.
[8] The
difficulty I had with the above passage is that it does not say that
it was part of the agreement that payment would be
so made. Mr.
Zietsman then proposed to file a supplementary affidavit to clarify
this issue and I stood the matter down to enable
him to do so.
[9] The supplementary
affidavit was subsequently filed and it reads in part:
“
3.1 Ek bevestig
dat die ooreenkoms tussen Applikant en Respondent tot inhoud
gehad
het dat betaling van bedrae aan Applikant verskuldig, te Bloemfontien
gemaak sal word.
3.2 Ek bevestig verdermeer dat alle
betalings wat vantevore deur Respondent aan Applikant gemaak is, ten
aansien van hierdie kontrak,
gedoen is in Applikant se rekening te
Bloemfontein.”
[10] In
COLOURED
DEVELOPMENT CORPORATION LTD v SAHABODIEN
,
supra
,
it was held that the
forum
contractus
in the wide sense includes the place where the contract must be
performed and if such
locus
solutionis
falls within the area of the court, that would be sufficient to found
jurisdiction. The position was put as follows in
Herbstein
& Van Winsen, The Civil Practice of the Supreme Court of South
Africa
,
Fourth Edition, by Van Winsen, Cilliers and Loots at p. 60:
“
... the court
will exercise jurisdiction by reason of a claim arising out of a
contract (
ratione
contractus
)
which was entered into, or was to be performed, either wholly or in
part, within the court’s area of jurisdiction, or out of
a delict
(
ratione
delicti commissi
)
committed within that area. Such jurisdiction is known as
jurisdictio
ratione rei gestae
.”
[11] The
evidence of the applicant is uncontested that it was agreed that
payments for its services
would
be made into its account with Absa bank in Bloemfontein. That means
that part of the contract was to be performed within
the area of
jurisdiction of this court. It is precisely the breach of this part
of the contract which constitutes the cause of
action in this matter.
It is for these reasons
that I concluded that this court has jurisdiction in the matter.
____________
H.M. MUSI, JP
On
behalf of
applicant: Adv.
Paul Zietsman
Instructed
by:
Rossouws
Attorneys
BLOEMFONTEIN
On
behalf of
respondent: No appearance
/sp