Member of the Executive Council, Department of Education, Free State Province v Superintendant-General for the Department of Education, Free State Province and Another [2008] ZAFSHC 156; [2008] ZAFSHC 45 (12 June 2008)

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[2008] ZAFSHC 156
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Member of the Executive Council, Department of Education, Free State Province v Superintendant-General for the Department of Education, Free State Province and Another [2008] ZAFSHC 156; [2008] ZAFSHC 45 (12 June 2008)
IN THE HIGH COURT
OF SOUTH AFRICA
(ORANGE FREE STATE
PROVINCIAL DIVISION)
Case No.: 3372/2006
In the case between:
C MOKITLANE:
MEMBER OF THE EXECUTIVE
1
ST
Excipient
COUNCIL, DEPARTMENT
OF EDUCATION,
FREE STATE PROVINCE
(in his representative
capacity as such)
M S RAKOMETSI:
SUPT. GENERAL FOR THE
2
ND
Excipient
DEPARTMENT OF
EDUCATION, FREE STATE
PROVINCE
(in his aforesaid
representative capacity as such)
and
KARABO ANSWER
BAHUMI
Respondent
JUDGMENT:
HANCKE, J
_____________________________________________________
HEARD ON:
23 MAY 2008
_____________________________________________________
DELIVERED ON:
12 JUNE 2008
_____________________________________________________
[1] This is an exception
to the particulars of claim as being vague and embarrassing or
lacking averments which are necessary to sustain
an action. The
exception states that, in so far as the particulars of claim are
vague and embarrassing, the respondent (herein later
referred to as
“plaintiff”) is afforded an opportunity of removing the cause of
complaint, failing which the excipients (herein
later referred as the
“defendants”) shall within the time period prescribed, deliver
their exception thereto.
[2] In its heads of
argument the plaintiff submitted that insofar as the court finds that
the defendants have a valid complaint that
the particulars of claim
are vague and embarrassing, the defendants embarked upon an improper
procedure and directly contrary to
the provisions of Rule 23(1). The
defendants should have given a prior and separate notice in terms of
the provisions of Rule 23(1)
to enable the plaintiff to comply
therewith, failing which exception could be taken at a later stage.
Mr. Daffue, on behalf of the
plaintiff, abandoned this point when he
appeared in this matter and consequently I do not propose to deal
with the merits of this
submission.
[3] In its amended
particulars of claim, the plaintiff pleads as follows:
¡°
4.1 On
4
June 2004
the Department of
Education, Free State Province in writing invited suppliers to tender
for the carrying out services in respect
of the distribution of
Learner Support Material (“
LSM
”)
/ Test and Prescribed books and school stationery to various schools
situate in the different districts of the Free State Province.
A
copy of the Free State Tender Bulletin dated
4
June 2004
is annexed hereto
as annexure “
A
”.
4.2 In
terms of annexure “
A
”,
suppliers were invited to tender in respect of
inter
alia
the following:
4.2.1 Tender no E6/2004/2005 – 2007
in respect of the distribution of the aforesaid material, books and
stationery to various schools
in the Xhariep District of the Free
State Province for the academic year 2005 up to academic year 2007.
4.2.2 Tender
E8/2004/2005 – 2007 in respect of the distribution of the aforesaid
material, books and stationery to various schools
in the Motheo
District of the Free State Province for the academic year 2005 up to
academic year 2007.
4.2.3 Tender
E9/2004/2005 – 2007 in respect of the distribution of the aforesaid
material, books and stationery to various schools
in the
Lejweleputswa District of the Free State Province for the academic
year 2005 up to academic year 2007.
4.2.4 Tender
E11/2004/2005 – 2007 in respect of the distribution of the
aforesaid material, books and stationery to various schools
in the
Northern Free State District of the Free State Province for the
academic year 2005 up to academic year 2007.
4.3 Plaintiff accepted the invitation
to tender and on
1 July 2004
and at Bloemfontein in writing tendered in respect of four tender
contract numbers, i.e. E6/2004/2005 – 2007, E8/2004/2005 –
2007,
E9/2004/2005 – 2007 and E11/2004/2005 – 2007. The applicable
tender forms for the rendering of services were duly filled
out and
signed by plaintiff. Such signed documents, together with
plaintiff’s pricing schedules in respect of each and every tender
is annexed hereto as annexures “
B1
”
to “
B4
”
in respect of tender numbers E6/2004/2005 – 2007, E8/2004/2005 –
2007, E9/2004/2005 – 2007 and E11/2004/2005 – 2007 respectively.
4.4 On
8
October 2004
and at
Bloemfontein Dr
MC NWAILA,
in his capacity as Head: Education, he duly authorised by the
Department of Education, in writing accepted plaintiff’s tenders
on
behalf of the Department in respect of E6/2004/2005 - 2007
E8/2004/2005 – 2007, E9/2004/2005 – 2007 and E11/2004/2005 –
2007. Copies of such written acceptances, set out on Form FSBD 7.2
(part 2), are attached hereto as annexures “
C1
”
to “
C4
”
respectively.
4.5 On
28 October 2004
and at Bloemfontein plaintiff signed the applicable documents
referred to as “Contract Form – Rendering of Services”, being
Form FSBD 7.2 (part 1) in respect of E6/2004/2005 - 2007 E8/2004/2005
– 2007, E9/2004/2005 – 2007 and E11/2004/2005 - 2007.
Copies
thereof are attached hereto as annexures “
D1
”
to “
D1
”
to “
D4
”
respectively. The general conditions of contract applicable and
referred to in annexures “
D1
”
to “
D4
”
is attached hereto as annexure “
E
”.
4.6 Consequently written contracts
were entered into between plaintiff and the Department of Education
of the Free State Province
in terms whereof plaintiff became entitled
to the rendering of services set out in the tender bulletin, read
with the acceptances
of the tenders, annexures “
C1
”
to “
C4
”,
subject to official orders indicating service delivery instructions
being forthcoming. The Department of Education published
in the
Tender bulletin of
5
November 2004
that the
tenders referred to above were awarded to plaintiff. A copy thereof
is annexed is annexed hereto as annexure “
E1
”.
[4] In their exception,
the defendants under the heading LACK OF AVERMENTS
state
the following:
“
1.1.1 In paragraph 4.1 Plaintiff
pleads a written invitation. Plaintiff annexed annexure “A” to
her pleading.
1.1.2 In paragraph 4.2 Plaintiff
pleads that annexure “A”
inter
alia
invited tenders for
certain tenders and for the period
2004/2005
– 2007
, the relevant
tenders being tender number “E6”, “E8”, “E9”, and “E11”.
Annexure “A”, attached to the pleadings,
does not provide as
Plaintiff has pleaded. On the contrary, it only refers to the period
2004/2005
in the first document marked “A”, and the further documents only
refer to tneder”E8”.
1.1.3 In the premises, Plaintiff’s
allegations is not a valid allegation of fact as based on the
pleadings and annexures thereto
and accordingly no cause of action is
disclosed.
1.2.1 In
paragraph 4.3 Plaintiff pleads a written acceptance of the invitation
to tender. Plaintiff relies on annexure “B1” to
“B4” for the
said four tenders.
1.2.2 “B1” to “B4” stated that
the acceptance of the tender “
shall
be subject to the terms and conditions contained in the General
Conditions and Procedure (FST36) and Preference Points Claims
Form
(FST11, FST11.1 and FST11.2) to which Plaintiff are fully
acquainted”.
The said
FST11, FST11.1 and FST11.2 are not annexed to Plaintiff’s
Particulars of Claim.
1.2.3 The
said annexures “B1” to “B4” further refers to a declaration
of interest (FST6) to being duly completed and included
with the
tender forms. No such declaration of interest has been attached.
1.2.4 This alleged acceptance of the
invitation is not a valid allegation of fact as based on the
pleadings and annexures thereto
and accordingly no cause of action is
disclosed.”
[5] As far as paragraphs
1.1.1 – 1.1.3 of the exception are concerned it is necessary to
have regard to the legal effect of a call
for a tender. In
R
H Christie, The Law of Contract in South Africa
(5
th
Edition), the following is stated on page 42:
¡°
A
call for tenders may be addressed to the public generally or to
members of a group such as Master Builders or to selected
individuals.
Theoretically the call could amount to an offer, by
stating that the highest tender (for instance for the purchase of
property),
or for the lowest tender (for instance for the performance
of work or the supply of goods or services) would be accepted. But
such
cases will be rare, because a person calling for tenders will be
unlikely to wish to commit himself in advance to a contract with
a
tenderer in whom he may have no confidence…
A
call for tenders, then, is
normally
no more than a request to submit offers,
and each tender is an offer which an employer calling for tenders may
accept or reject at will. It follows that he is not obliged
to
accept the highest, lowest or any tender. It also follows that, in
the absence of wording to the contrary in the call for tenders,
any
tender documents
such as
plans, specifications and bills of quantities supplied by the person
calling for tenders
are
supplied simply for the information of the tenderer, to enable him to
workout the terms of his offer,
but without any promise of there correctness.”
(my
underlining)
COOLCAT
RESTAURANTE BK h/a DIE KAFETERIA, UOVS v VRYSTAATSE REGERING EN
ANDERE
1999 (2) SA 635
(O) at 642B – D.
[6] It follows therefore
that it was not necessary for the plaintiff to annex the defendant’s
invitation to tender to its particulars
of claim. Therefore an
incomplete annexure neither affected nor made its particulars of
claim vague and embarrassing.
[7] As far as paragraphs
1.2.1 – 1.2.4 are concerned it is necessary to keep in mind what an
excipient must establish before it
can succeed with an exception:
¡°
The test on exception
[6] (i) In order for an exception to
succeed, the excipient must establish that the pleading is excipiable
on every interpretation
that can reasonably be attached to it.
FIRST NATIONAL
BANK SOUTHERN AFRICA v PERRY NO AND OTHERS
2001 (3) SA 960
(SCA) at 965D;
THEUNISSEN
EN ANDERE v TRANSVAALSE LEWENDEHAWE KOöP BPK
1988 (2) SA 493
(A) at 500 E – F.
(ii)
A charitable test is used on exception, especially in deciding
whether a cause of action is established, and the pleader is
entitled
to a benevolent interpretation.
PERRY’S
CASE
supra
at 972 I – J.
(iii)
The court should not look at a pleading “with a magnifying glass
of too high power.’”
KAHN v STUART AND OTHERS
1942 CPD 386
at 391;
PURDON
v MULLER
1961 (2) SA
211
(A) at 214 e – 215 F. In the latter case it was stated:
¡®¡¦
minor
blemishes in, and unradical embarrassments caused by, a pleading can,
and should be, cured by further particulars.’
(iv) The pleadings must be read as a
whole; no paragraph can be read in isolation.”
SOUTHERNPORT
DEVELOPMENTS (PTY) LTD v TRANSNET LTD
2003 (5) SA 665
(W) at 669 A – B.
[8] The said document
refers
inter
alia
to
“general conditions and procedures”. Mr. Daffue on behalf of the
plaintiff submitted that the said documents are irrelevant
and have
no bearing on the plaintiff’s cause of action. If a “benevolent
interpretation” is applied I agree with Mr. Daffue’s
submission
because it does not appear from the papers that the said documents
are relevant at all. The same applies to the so called
“declaration
of interest” (paragraph 1.2.3).
[9] Under the heading
“VAGUE AND EMBARRASSING” defendant pleads as follows:
“
2.1.1 In paragraph 4.4, Plaintiff
pleads a written acceptance of Plaintiff’s tenders. Copies of such
written acceptance being annexures
“C1” to “C4”.
In each of the annexures “C1”
to “C4”, reference is made to an attached list which is not
attached to annexures “C1”
to “C4”.
Failure to attach the said
documentation referred to makes it vague and embarrassing to
properly plead thereto.
In paragraph 4.5 Plaintiff pleads a
written contract from documents. They are attached as annexures
“D1” tot “D4”.
Reference is made to schools as per
attached list and certain bidding documents such as “
invitation
to bid”
; “
tax
clearance certificate”; “pricing schedules”; “filled in
task directive – proposal”; “preference certificates
in
terms of the preferential procedurement regulation 2001”;
“declaration of interest”; “special conditions of contract”
and
“general conditions of contract”.
Plaintiff only attached a document “
general
conditions of contract”.
Failure to attach the necessary
documentation relied on makes the pleading vague and embarrassing
to plead thereto.
In terms of paragraph 4.6,
Plaintiff pleads consequently written contracts were entered into
without the proper identification
and annexing all the written
documentation on which Plaintiff relies.”
[10] As far as paragraphs
2.1.1 – 2.1.3 are concerned it is the defendant’s argument that
the “list” referred to is not attached.
Paragraph 5 of annexure
“C” reads as follows:
¡°
5.1 It
is possible that not all schools allocated to you have placed orders.
Therefore you should rely on the distribution list that
will be
supplied by the warehouse manager.
5.2 The number of schools allocated to
you will not necessarily remain the same for the period of 3 years.”
It is therefore clear
that the said list can change from time to time; therefore I can see
no necessity for the plaintiff in the
circumstances to annex the said
list to its pleadings. The plaintiff’s omission to attach it does
not make the pleading vague
and embarrassing.
[11] As far as paragraphs
2.2.1 – 2.2.3 are concerned it is the defendant’s case that the
plaintiff’s failure to attach the
documentation referred to in
annexure “D” makes the particulars of claim vague and
embarrassing. The said documentation includes
bidding documents,
invitation to bid, tax clearance certificate as well as general
conditions of contract, of which the first-mentioned
documents are
clearly not relevant to the plaintiff’s cause of action. Although
general conditions of contract should as a rule
be annexed to the
pleadings, it is not clear from the context in which it was used
whether the said document is relevant at all,
especially where it was
used in the same sentence as e.g. a tax clearance certificate.
STERN
NO v STANDARD TRADING CO (PTY) LTD
1955 (3) SA 423
(A) AT 429 G – H. The defendant’s objection can
therefore not be sustained.
[12] As far as paragraphs
2.2.4 – 2.2.6 of the particulars of claim are concerned it is the
defendant’s case that the reference
to written contracts between
the parties are vague and embarrassing in view of the fact that they
were not properly identified.
There is no doubt that it is slovenly
worded. However, it is clear that the written contracts refer to the
contracts mentioned earlier
in the particulars of claim. Therefore,
the result is that the said wording is not vague and embarrassing.
The exception therefore
falls to be dismissed.
[13] Accordingly the
exception is dismissed with costs.
__________________
S.
P. B. HANCKE, J
On behalf of the
plaintiff: Adv. J. P. Daffue
Instructed by:
I
R O Bokwa Attorneys
BLOEMFONTEIN
On behalf of the
defendants: Adv. J. Y. Claasen
Instructed
by:
State
Attorney
BLOEMFONTEIN
/em