Suid-Afrikaanse Stamboek- en Veeverbeteringsvereniging v State Information Technology Agency (Edms) Bpk (3557/2005) [2006] ZAFSHC 138 (9 February 2006)

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[2006] ZAFSHC 138
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Suid-Afrikaanse Stamboek- en Veeverbeteringsvereniging v State Information Technology Agency (Edms) Bpk (3557/2005) [2006] ZAFSHC 138 (9 February 2006)

IN THE HIGH COURT
OF SOUTH AFRICA
(ORANGE FREE STATE
PROVINCIAL DIVISION)
Case No.: 3557/2005
In
the case between:
SUID-AFRIKAANSE
STAMBOEK- EN
VEEVERBETERINGSVERENIGING
Applicant
and
STATE INFORMATION
TECHNOLOGY
AGENCY (EDMS)
BPK
Respondent
_____________________________________________________
JUDGMENT:
RAMPAI, J
_____________________________________________________
HEARD ON:
27 OCTOBER 2005
_____________________________________________________
DELIVERED ON:
9 FEBRUARY 2006
_____________________________________________________
[1] These proceedings are
concerned with the furnishing of further particulars. Under case
number 3811/2003 the respondent as the
plaintiff sues the applicant
as the defendant for the payment of the sum of R1 180 764,85 and
ancillary relief. This claim, the
respondent alleges, is the balance
of the original debt of R1 680 764,85. The respondent acquired the
debt through cession from
the Central Computer Services, a business
unit of the Department of State Expenditure. The action is defended.
The defendant’s
plea has been delivered. The further particulars
have been requested and furnished.
[2] Notwithstanding the
furnishing of the further particulars by the plaintiff, the defendant
brought an application on the 18
th
August 2005 by way of motion proceedings for an order to compel the
plaintiff to furnish proper and complete answers to the defendant’s
request dated the 20
th
July 2005. On the 11
th
October 2005 the plaintiff delivered supplementary answer to amplify
its original answer dated the 15
th
of August 2005. The defendant’s application is opposed by the
plaintiff. Henceforth I shall refer to the parties as cited in
the
motion proceedings. Adv. A. F. Jordaan SC argued the matter on
behalf of the applicant and Adv. T.J.B. Bokaba argued it on behalf
of
the respondent.
[3] The allegations
contained in paragraphs 5.2, 7, 8 and 10 of the respondent’s
declaration are the pillars of the respondent’s
claim. When these
allegations are considered against the backdrop of the
counter-allegations as set out in paragraph 16 and 18 of
the
applicant’s plea, it becomes clear and obvious that in order to
succeed the respondent has to prove the following in respect
of each
particular service rendered: Firstly, the nature of each service;
secondly, the extent of the utilization thereof; thirdly,
the
approved tariff applicable to each service rendered and fourthly,
proof that the approved tariff applicable to each service is
reasonably market related.
[4] As
regards each alleged service rendered, the applicant as the defendant
is entitled to know what the respondent’s case is in
respect of the
important aspects mentioned in the aforegoing paragraph in order to
prepare for trial. To ascertain whether or not
the applicable rates
are reasonably market related as alleged by the respondent, the
applicant requires sufficient particulars to
enable it to appoint an
expert witness to investigate that aspect, to advise the applicant,
to prepare himself for trial and to testify
for the applicant.
The principles governing
the furnishing of further particulars were eloquently summarised by
Botha, J in
SOUTH
AFRICAN RAILWAYS & HARBOURS v DEAL ENTERPRISES (PTY) LTD
1975 (3) SA 944
(WLD).
See
the synopsis at 944B – 945B.
[5] In its summons, the
respondent declares as follows:
¡°
On
or about 1 April 1999 the Plaintiff and the Central Computer Services
(“CCS”), a business unit of the Department of State Expenditure,
duly represented by their authorised representatives and acting
pursuant to Section 20 of the Act, entered into an oral agreement
of
cession in terms whereof CCS ceded and/or transferred to the
Plaintiff certain contracts and assets, including the business
agreement
concluded between the CCS and the Defendant.”
[6] In its request for
further particulars, the applicant wanted to know who represented the
Central Computer Services and who represented
the respondent during
the business negotiations which led to the conclusion of an agreement
of cession. In its answer the respondent
merely stated that the
representatives of the Central Computer Services acted on its behalf
as the cedent and that the representatives
of the respondent acted on
its behalf as the cessionary. In its supplementary answer the
respondent amplified its previous answer
by stating that Central
Computer Services and SITA, in other words the respondent, were
represented by their duly appointed officials.
[7] It will be readily
appreciated that the respondent relies on a contract. Now in terms
of rule 18(6) Uniform Rules of Court a
party who, in his pleading,
relies upon a contract shall state, among others, by whom such
contract was concluded. In a case where
the plaintiff, as in the
instant matter, relies upon a contract, particularly an unwritten
one, he is bound by the peremptory requirements
of the sub-rule, and
is obliged, if possible, to give the information required in precise
terms. See Erasmus: Superior Court Practice,
page B1-132 and
VORSTER
v HESSELMAN
1982(4) SA 857 (O) at 861 F-H per M.T. Steyn, J.
[8] Both in its original
answer and supplementary answer the respondent has failed to identify
the agents of either the cedent or
the cessionary. To allege merely
that the “representatives” of the respective businesses
enterprises or their appointed officials
acted on their behalf is
certainly not enough. For instance, were such representatives’
employees, directors, liquidators, trustees,
consultants or whatever
of the contractants? The descriptive phrase duly appointed officials
is equally vague. I hasten to point
out that it is not the
respondent’s case that, for one or other reason, it is now
impossible for it to identify such agents or
representatives by their
names. The applicant is entitled to such information as of right.
To the extent that the respondent’s
declaration did not contain
such information, it was an incomplete and improper pleading. The
applicant is therefore entitled to
demand that the defect be remedied
by the furnishing of the missing information so that the declaration
is made a complete and proper
pleading it should have been from the
outset.
[9] The obligation which
the sub-rule imposes on a respondent who relies on a contract for its
claim is independent of the enquiry
whether the applicant as the
plaintiff necessarily requires such information in order to prepare
for the hearing. In the matter
of
SOUTH
AFRICAN RAILWAYS & HARBOURS v DEAL ENTERPRISES (PTY) LTD
1975 (3) SA 944
(WLD) at 952H – 953C Botha, J observed:
¡°
As
to the first part, it seems to me that the framers of the Rules
intended to prescribe pragmatically that certain classes of
particulars,
viz. those mentioned in sub-Rules (6), (8), (9) and (10)
of Rule 18, should be contained in all pleadings, for the very
purpose of
eliminating disputes as to whether they were required to
be supplied in terms of the general precept of Rule 21 (6) or not.
The negative
provision of Rule 18 (7) supports this conclusion. Since
the prescribed particulars are required to be incorporated in the
pleadings,
it necessarily follows, in my view, that where they have
been omitted the pleader can be compelled to remedy the defect by
means
of a request for those particulars by his opponent, and in such
a case there is no room for an enquiry into the question whether
the
opponent requires the particulars in terms of Rule 21 (1) or not (cf.
Van Tonder's case, supra at p. 193H, and Mavundla's case,
supra at p.
28A). As to the second part of the argument, the suggested narrow
interpretation of the expression "relies upon"
appears to
me to be artificial and unwarranted. A plaintiff clearly "relies
upon a contract" when he uses it as a "link
in the chain of
his cause of action" (Van Tonder's case, supra at p. 193H). He
is accordingly obliged to furnish the particulars
mentioned in Rule
18 (6) whenever the contract forms a part of the cause of action put
forward by him, irrespective of whether the
contract can aptly be
described as the "basis" of the claim or not.
In my judgment, therefore, the
principle to be applied may be formulated as follows:
9. Where a plaintiff relies upon a
contract as part of the cause of action put forward by him, the
defendant is entitled to the particulars
mentioned in Rule 18 (6) as
of right and independently of the application of the principles
summarised in paras. 1 - 7 above.”
[10] As regards the first
leg of the applicant’s complaint I find the respondent’s summons
to be incomplete and improper. Since
the defect was not remedied by
the original answer or the supplementary answer of the respondent I
would grant the relief which the
applicant now seeks.
[11] In its summons the
respondent declares that:
¡°
5.1 The
Plaintiff was to render data processing services and application
software development and maintenance services to the Defendant;”
[12] The aforegoing
averment has to be read in connection with paragraph 6 of the
respondent’s declaration which reads:
“
During the period 1 April 1999 to
November 2000 the Plaintiff, acting pursuant to the business
agreement referred to above, provided
data processing services and
application software development and maintenance services to the
Defendant.”
[13] In paragraph 3 of
its request the applicant requested for the following information in
respect of the alleged services: a detailed
description of the
nature of each service rendered; when each such service was rendered
and by whom each such services was rendered
on behalf of the
respondent.
[14] The respondent’s
answer to the above request is found in paragraph 8.
¡°
Data
processing services. Resource utilization is captured and
accumulated by the Operating System Software with regard to Central
Processor Unit utilization (CPU), Disk Storage utilization (DASD),
Input/Output transactions generated (I/O), Memory usage and number
of
Print Lines generated. The utilization figures are then multiplied
with the approved tariffs applicable to each unit of measure
giving a
monetary value for each unit for a particular month and then added
together to give total amount due per Client. The service
was
rendered through the Pretoria office by a wide spectrum of
Plaintiff’s employees.”
[15] In the first place
the description of services was given. The services were described
as data processing services. What followed
afterwards from the words
“resources” to the word “generated” appears to be an
explanation of a data capturing process.
No information relating to
such explanation was requested. Besides data processing services,
the respondent’s answer is silent
about the other services, if any,
such as software development and maintenance services as alleged in
paragraph 5.1 of the respondent’s
declaration.
[16] In the second place
the respondent’s answer is silent about the site(s) where each
service was rendered. The place name Centurion
appears under the
heading service description on several invoices between page 23 and
page 24 of the paginated court record. What
that means I am
uncertain. Counsel for the respondent stated from the bar that the
respondent rendered services from its Pretoria
office to the
applicant’s offices in Bloemfontein because the two were
electronically linked together by a computer system. That
may well
be the case. It is unfortunate, however, to say that such an
averment appears nowhere in the respondent’s declaration
or
subsequent pleadings such as its original answer or supplementary
answer.
[17] In the third place
the respondent made no attempt to answer the applicant’s question
as to when each service was rendered.
Granted the various invoices
relied upon in support of the claim have different dates. But such
invoices are somewhat vague. They
do not say whether such dates are
indicative of dates on which the services were actually rendered or
the dates on which the applicant
was billed. The information
provided is lamentably vague.
[18] In the fourth place
the respondent gave an evasive answer to the questions as to who
rendered the services on behalf of the respondents.
The answer that
the service was rendered ….. by a wide spectrum of the
plaintiff’s employees is incomplete and vague. It
does not enable
the applicant to identify the true identities of the people who
rendered the services.
[19] As regards the
applicant’s second leg of the complaint I also find the
respondent’s summons to be incomplete and improper.
In my view the
information that the applicant requested in paragraph 3 is necessary
to enable it to prepare for the hearing.
[20] In its declaration
the respondent alleged in paragraph 5.2 that the cost of the service
to be rendered by the plaintiff to the
defendant was to be reasonably
market related. In paragraph 7 of the declaration the respondent
alleged that the rates charged
by the plaintiff for the services
rendered to the defendant were in accordance with section 16 of the
Act and that such rates were
approved by the Department of Sate
Expenditure. The approved tariff structure was annexed to the
summons and marked annexure “A”.
[21] In paragraph 5 of
its request the applicant further required the respondent to furnish
it, among others, with a breakdown of
the amount claimed – vide
paragraph 10 of the summons and annexure “B” thereto. Instead of
furnishing the required information
the respondent referred the
applicant to paragraph 8 of its answer. The relevant portion of
paragraph 8 is found in the middle of
that paragraph and reads as
follows:
¡°
The
utilization figures are then multiplied with the approved tariff
applicable to each unit of measure giving a monetary value for
each
unit for a particular month and then added together to give total
amount due per client.”
[22] Counsel for the
applicant contended that the above answer was so vague that, as the
defendant, the applicant was not in a position
to identify the
required particulars and to consider them in order to prepare for the
final hearing. The contention has substance.
The formula is riddled
with uneasy and technical phrases, for instance: the utilization
figures”, “the approved tariff” and
“the unit of measure”.
The document marked annexure “B” is a composite document. It
consists of various monthly totals
extracted from various vouchers.
However, those vouchers themselves do not indicate how a total for a
particular amount was made
up and calculated. No daily services, no
basic unit charges, no daily monetary values and no daily subtotals
are shown.
[23] All these details
are necessary to enable the applicant to know what case it has to
meet. I find the formula given in the respondent’s
answer,
unhelpful. The formula, the annexures and the vouchers on which the
respondent relies could not be sensibly figured out
to distil the
issue. So intricate and incomprehensible are further particulars
furnished in this regard that even counsel for the
respondent himself
was embarrassed. He frankly had to concede that he could not
meaningfully use the information supplied by his
own client to
demonstrate by means of only one voucher as to how its gross sum
total was quantified. It follows without saying that
unless these
monthly totals of the vouchers can be figured out the global claim
cannot be properly quantified.
[24] It has to be borne
in mind that annexure “B” is a summary of those obscure monthly
totals. The contention by counsel for
the respondent that the
applicant has an in-house computer expert who understands the
computation of these monthly sub-totals is
a lame argument. The
pleadings are not a commodity exclusively intended for consumption by
the litigants only. It is as important
for the court to understand
the pleadings as it is for the litigant’s adversary. At any rate,
this court does not have such expertise
of a computer expert.
[25] I hold the view that
without adequate particulars in this regard the applicant cannot be
in a position to prepare properly for
the final hearing. Compelling
the respondent to furnish proper and complete information will
prevent eminent prejudice the applicant
is likely to suffer as
matters currently stand. Therefore I am inclined to uphold this
third leg of the applicant’s complaint
as well.
[26] I have not said
anything here about paragraph 5.1, 5.2 and 5.3 of the applicant’s
request. The general import of each of these
sub-paragraphs is
substantially the same as that of paragraph 3. My views there apply
mutatis
mutandis
equally well here.
[27] The respondents did
not have any objection to the applicant’s request as contained in
paragraph 10 of the Applicant’s Heads
of Argument. I mean such a
prayer or request is a usual component of the relief saught in
matters of this nature. I would therefore
also grant such ancillary
relief in terms of Rule 21(4).
[28] Finally I can see no
reason why costs should not follow success in this matter. No
argument to the contrary was advanced.
[29] Accordingly I make
the following order:
29.1 The respondent is
directed to furnish the applicant with complete and proper answers to
paragraphs 1.2, 1.3, 2.2.2, 3 and 5 of
the applicant’s request for
further particulars dated 20.07.2005 which was filed under case
number 3811/03 of this court.
29.2 The
respondent is directed to pay the applicant’s taxed costs, relating
to this application on the scale as between party and
party.
29.3 The
respondent is directed to comply with clause 1 above within thirty
days hereof.
29.4 The
applicant is granted leave to approach this court on the same papers
duly amplified wherever necessary to have the respondent’s
claim
dismissed with cost should the respondent fail to comply with this
order.
______________
M.H. RAMPAI, J
On
behalf of the applicant: Adv. A.F. Jordaan SC
Instructed
by:
McIntyre
& Van der Post
BLOEMFONTEIN
On
behalf of the respondent: Adv. T. Bokaba
Instructed
by:
Mapitse
& Khang Attorneys
BLOEMFONTEIN
/em