About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Limpopo High Court, Polokwane
SAFLII
>>
Databases
>>
South Africa: Limpopo High Court, Polokwane
>>
2024
>>
[2024] ZALMPPHC 6
|
|
Mmamoleboge Investment CC v Minister of the Department of Public Works of the Republic of South Africa and Others (5086/2016) [2024] ZALMPPHC 6 (17 January 2024)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(LIMPOPO
DIVISION
,
POLOKWANE)
CASE
NO: 5086
/
2016
In
the matter between:
MMAMOLEBOGE
INVESTMENT CC
RESPONDENT/
PLAINTIFF
REGISTRATION
NUMBER: CK2[…]
-and-
THE
MINISTER
OF
THE
FIRST
APPLICANT/ DEFENDANT
DEPARTMENT
OF
PUBLIC
OF THE WORKS
REPUBLIC
OF SOUTH AFRICA
THE
DIRECTOR
-
GENERAL,
DEPARTMENT
SECOND
APPLICANT
/
DEFENDANT
OF
PUBLIC WORKS OF THE REPUBLIC
OF
SOUTH
AFRICA
JUDGMENT
BRESLER
AJ:
Introduction
[1]
The First and
Second Applicant (First and Second Defendants in the main case)
applies for an order against the Respondent (Plaintiff
in the main
case)
inter
alia
in
the following terms:
1.1
Striking out
the Respondent's claim as set forth in
its
Particulars
and Claim, alternatively dismissing the Respondent's claim.
1.2
Directing
that the
Respondent's
replies to
further particulars
delivered to
the Applicants on 25 August 2021 and 6 June 2022 are struck out in
terms of Rule 21(4) of the Uniform Rules of the
High Court, on the
ground that the Respondent who was requested to furnish particulars
failed to deliver them sufficiently and
adequately.
[2]
On or about
the 11
th
of August 2021, the
Applicants requested from the Respondent further particulars that are
alleged to be necessary to enable them
to prepare for trial.
[3]
In rep
l
y
to the request for further particulars
,
the Respondent
submitted a response to the Applicants which response was deemed by
the Applicants to be
insufficient
and
unsatisfactory
.
[4]
The Applicants
thereupon applied for an order compelling the Respondent to reply
sufficiently and adequately to the request for
further particulars.
[5]
On or about
the 23
rd
of May 2022
,
the Honourable
Muller J granted an order pursuant to
the
application to
compel in terms whereof the Respondent was compelled to answer and /
or reply to questions 5 and 7 of the Applicants
'
request for
further particulars
.
[6]
For the sake
of elucidation
,
these
questions
are
the following:
6.1
Question 5:
Can the Plaintiff give the date
,
time and place
where the Parties s
i
gned
the General Conditions of Contract?
6.2
Question 7
:
If the answer
is yes
(referring
to question 6)
then on what basis would the parties have a contract based on an
unsigned document?
[7]
Question 6
relates
to
the validity and enforceability of the contract if same is unsigned
.
The
Respondents
were not
directed to answer hereto
.
[8]
On or about
the 6
th
of June 2022
,
the Respondent
delivered a
reply in
response to the order to compel.
[9]
In reply to
question 5 the Respondent
stated
:
1.
The
General Conditions of Contract was signed by the Plaintiff, duly
represented by one of it
'
s
members
,
Sam
Thema
on or about 30 April 2022 at
75
Hans
van
Rensburg
Street
,
Polokwane
,
Limpopo
Province
,
the
Defendants
were
represented
by one
of their Project Managers unknown to me
,
who
provide me with an unsigned contract which I affixed my signature to
,
on
behalf of the Plaintiff and then handed back the signed original to
the Project Manager
.
2.
The
Plaintiff does not remember
the
time at which it went to the Defendants premises
,
but it
was during the Defendants normal working hours
,
presumably
during midday.
[10]
In reply to question
7 the Respondent stated:
3.
The
Plaintiff signed
a
standard
General Conditions of Contract (similar to the unsigned copy annexed
to the Plaintiff's Particulars of Claim) and handed
back the signed
original
contract
to
the Defendants Project Manager,
for the
Director
-
General to
sign on behalf of the Defendants
.
4.
Therefore
,
the
signed original contract or copy thereof was never provided to the
plaintiff and if the Defendants are unable to produce the
signed
original contract
,
the
Plaintiff will during the trial of this matter lead evidence to show
that the parties conducted themselves in accordance with
the terms of
the unsigned General Conditions of Contract annexed to the
particulars of claim and accordingly
bound
by such terms thereof
[11]
This court
must therefore establish if the aforesaid responses constitute a
sufficiently adequate response
,
alternatively
if the Applicants are entitled to relief as set out in the Notice of
Motion.
[12]
The Applicants
ra
i
sed
the issue of the procedure
adopted by the
Respondent
i
n
opposing the current application in their answer to the Rule
6(5)(d)(iii) notice.
In as far as
may be necessitated, I find that the procedure adopted by the
Respondent cannot be criticized as the predominant issue
before court
is indeed a determination of the law rather than fact.
The Applicants
did not pursue this line of argument at length in court and no
further consideration thereof is thus required.
It is also
evident that a consideration of the merits would benefit both parties
as opposed to a potential blunt dismissal on a
mere technicality.
[13]
From the onset
it is apposite to note that the Honourable Judge Muller ordered the
Respondents to reply
adequately
to questions 5
and 7.
This
order does not presuppose that the Respondent was obliged to deliver
a signed copy of the General Conditions of Contract.
[14]
Uniform Rule
21(4) provides that a party may apply to court for an order for the
delivery of further particulars or for the dismissal
of the action or
striking out of the defence (as the case may be)
,
whereupon
the court may
make such order as it may deem meet.
[15]
Erasmus
[1]
states
the
following
:
'The
purpose
of
permitting
a
party to
call for further particulars for trial is
(a)
to prevent surprise
;
(b)
that the parties should be told with greater precision what the other
party is going to prove in order to enable his opponent
to prepare
his case to combat counter allegations
;
and (c)
having regard to the aforegoing nevertheless not to tie the other
party down and limit his case unfairly at the trial.
Even if
the particulars requested
may
at times
involve the disclosure of evidence
,
the
fact does not disentitle the other party from obtaining the
particulars if on the grounds of embarrassment
or
prejudice in the preparation of his case he would otherwise be
entitled to know that case he has to meet.
In
general
,
however,
the
purpose
of
particulars
for
trial
is
not
to
elicit
evidence
or
information which will emerge on cross-examination
.
'
[16]
The
crux
of the
Applicants
'
argument is
contained in paragraph 27 of their Heads of Argument. Essentially
,
the Applicants
submit that the Respondent cannot present a copy of a signed
agreement and
,
i
n the absence
thereof, there is no contractual relationship between the parties.
[17]
This argument
is extenuated by the failure of the Respondent to produce a copy of
the official purchase order which the Applicants
deem a critical
component of the Respondent's cause of action
.
The Applicants
therefore state that the claim is fatally flawed
,
and on this
premise
,
it
should be struck out.
[18]
What the
Applicants however fail to appreciate is that strict adherence to
Rule 18(6)
,
which
was repeatedly
referred
to by counsel
in her
argument
in court
,
is not a
prerequisite for the Plaint
i
ffs
cla
i
m
succeeding
.
A party can
,
after all
,
not be
compelled to
'
comply
with the impossible'.
[19]
Rogers
J
i
n
Absa
Bank v Zalvest Twenty (Pty) Ltd and another
[2]
clarified
the position as such
:
'A
rule which purported to
say
that
a
party to
a
written
contract
was
deprived of
a
cause
of action if the written document
was
destroyed
or lost would be ultra vires.
But the
rules
say
no such
thing.
Rule
18(6)
is
formulated
on the assumption that the pleader
is
able to
attach
a
copy of the
written contract.
In
those circumstances the copy (or relevant part thereof) must be
annexed.
Rule
18(6) is not intended to compel compliance with the impossible. (I
may
add
that it
was
only in
1987 that rule 18(6)
was
amended to
require
a
pleader to
annex
a
written
copy of the contract
on
which he relied
.
Prior
to that time the general position was that
a
pleader
was not
required
to
anne
x
a
copy
of the contract
..
.)
'
[20]
In
the case of
Nedbank
Limited v Yacoob
[3]
the
full
bench
stated the following
:
'
[20]
The
substantive law of evidence prescribes that the original signed
contract
is
the best
evidence that
a
valid
contract
was
concluded
and the general rule
is
thus that
the original must be produced.
But
,
if it
is
impossible
for the plaintiff to produ
c
e
the written contract or
a
copy
thereof, substantive law allo
w
s
him to plead and prove the conclusion of the contract and its terms
by way of secondary evidence.
A rule
of procedure such
as
Magistrate
'
s
Court rule 6(6) or the equivalent High Court
Rule
18(6)
cannot
,
in
our
determination
,
be
construed
to
deprive
the
plaintiff
of his
cause of action or his right to adduce
secondary
evidence
on the contract.
'
[21]
Reference
was
made
during
argument
in
court
to the matter
of
Transnet
Limited v Newlyn Investments (Pty) Ltd
[4]
where
the following
was
stated:
'
[19]
Furthermore
,
there
was only one original addendum.
The
evidence (to which I shall refer presently)
was
that it
was
never
in possession of the respondent after it had been signed on behalf of
the appellant.
If it
had ever existed
,
the
original remained in possession of the appellant. That being so, two
rules of evidence come into play:
(a)
It
is well established that
a
party
may adduce secondary evidence of
a
document
in the possession
of
the opposite party if the latter has failed to produce it after
having been given notice to do so.
But
notice is
not
required
where
the
nature
of the proceedings
is
such as to inform the opposite party
,
by
necessary implication
,
that
production of the document
will
be
required
:
S
v
Miles
.
[5]
If
ever there was
such
a
case
,
this
is
it.
If
it
be
accepted
that
the
original
had
been
lost by the appellant then the second rule of evidence, which I shall
now deal with, becomes applicable anyway
.
(b)
One
secondary evidence is admissible, there are no degrees of secondary
evidence ie the common law no longer requires that the best
secondary
evidence has to be produced
.
Phipson
[6]
states the position
as
follows:
The
general rule is that there are no degrees in secondary evidence
;
and
that a party is at
liberty (subject to comment if more satisfactory proof is withheld)
to adduce any admissible description he may
choose
.
The
reason assigned is the incon
v
enience
of requiring evidence to be strictly marshalled according to weight
;
and of
compelling a party
,
before
tendering inferior evidence
,
to
a
c
c
o
unt
for the absence of all which is of superior value
,
but the
very existence of which he may have no means of ascertaining.
'
[22]
The principle
has therefore been clearly enunciated: the absence of a signed
agreement does not extinguish the Plaintiff's cause
of action
.
Secondary
evidence can be presented in this regard.
[23]
Can
it therefore be said that the reply delivered by the Respondent to
questions 5 and 7 are inadequate to the extent that it warrants
a
dismissal of the Respondent's claim?
[24]
The
Applicants made extensive reference to the matter of
Regent
Insurance Company Ltd v Flinkdink Transport and Another
[7]
i
n
their Heads of Argument.
In
my view reliance on this matter is misplaced
.
First
and foremost
,
this
matter dealt with a situation where a
r
espondent
del
i
berately
and contemptuously disobeyed the order to provide the further
particulars.
The
Honourable Moosa AJ specifically noted that the defendants are
'
wilfully
refusing to answer
'
and
have
'
literally
resorted to all and any measures ava
i
lable
to it
,
to
prevent the striking out application from proceedings
as
well as to avoid answering the p
l
aintiffs
request
for
further particulars
.'
[25]
This can be
distinguished from the facts
in
casu
in as
far as the Respondent has provided an answer to the Applica
n
ts
.
The Respondent
clearly submitted in reply that it is not, and never was
,
in possession
of a s
i
gned
copy of the agreement.
The Respondent
furthermore pleaded
,
by means of
the reply to the request for further particulars
,
that oral
evidence will be led as to the consensus between the parties having
regard to their conduct.
[26]
In my view,
these particulars are sufficient to enable the Applicants to prepare
for trial. It is not the duty of this court to
determine if the
evidence that will be led in due course, will be sufficient to
succeed with the claim.
This court
must merely determine if the particulars requested is necessitated to
enable the Applicants to prepare for trial.
[27]
Even if I am
incorrect in my submission that the answer is adequate for purposes
of preparation for trial, the court in the matter
of
Regent
Insurance Company Ltd
supra
enunciated
that the striking out of an action is a drastic remedy.
The power to
grant such remedy
is
discretionary
and the discretion must be exercised judicially.
[28]
It is evident
that the Applicants wishes to rely predominantly
on the fact
that the Respondent is unable to produce a signed document.
It was
presented to counsel during
the
hearing that
the signature of the agreement is not a prerequisite for the legal
enforceability thereof.
[29]
Having regard
to the agreement itself on which the Respondent's case is premised,
it
does
not contain a suspensive condition
that
only upon
signature thereof, a valid and
binding
agreement comes
into
operation.
[30]
This court is
also not aware of any legislation, similar to Section 2(1) of the
Alienation
of Land Act,
Act
68 of 1981, which regulates the enforceability of the
agreements
with
government
institutions
in
the
absence
of
same
being
signed
by both parties.
The
legislation and policies pertaining to supply chain management after
all only provides that the agreement must be in writing.
This issue
will however be canvassed
by the trial
court in due course.
[31]
In
Khunou
and Others v M Fihrer
&
Son
(Pty) Ltd and Others
[8]
Slomowitz
AJ
said
the
following
about
civil
procedure
in
general and the Rules of Court in particular:
'The
proper function of
a
Court
is
to try
disputes between litigants who have real grievances
and
so see
to
it that justice
is
done. The
rules of civil procedure exist in order to enable Courts to perform
this duty with which, in turn
,
the
orderly functioning
,
and
indeed the very existence
,
of
society
is
inextricably
interwoven. The Rules of Court are in
a
sense
merely
a
refinement
of the general rules of civil procedure. They are designed not only
to allow litigants to come to grips
as
expeditiously
and
as
inexpensive9ly
as
possible
with the real
issues
between
them
,
but
also
to
ensure that the Courts dispense justice uniformly and fairly
,
and
that the true
issues
which I
have mentioned are clarified and tried in
a
just
manner.
'
[32]
In my view the
true issues between the parties will not be determined if the
Respondent's case is dismissed purely on the premise
of its inability
to produce a signed copy of the conditions of contract.
It is in the
interest of justice to have the matter properly
adjudicated
before a trial court
.
[33]
The Applicants
have therefore failed to make out a case for the relief prayed for in
the Notice of motion.
[34]
I see no
reason why the cost order should not follow the outcome of the
proceedings.
The Respondent
has prayed for the dismissal of the application with costs on a
punitive scale.
I am of the
view that the conduct of the Applicants was not of such a
reprehensible nature to warrant the granting of a cost order
on a
punitive basis.
Order
[35]
In the result,
the following
order is made:
35.1.
The application is dismissed with costs.
M
BRESLER
ACTING
JUDGE OF THE HIGH COURT,
LIMPOPO
DIVISION, POLOKWANE
APPEARANCES
Heard
on
:
7 December 2023
Judgment
delivered on
:
17 January 2024
For
the Appellants
:
Adv.
NM
Seleso
Instructed
by
:
State Attorney, Polokwane
:
PMalatji@justice.gov.za
For
the First Respondent
:
Adv. ME Manala
Instructed
by
:
Ndlovu F Attorneys
:
info@ndlovulaw.co.za
[1]
Van
Loggerenberg
,
Erasmus,
Superior Court Practice
,
Se
c
ond
Edition on page 01 -
252
[2]
2014
(
2
)
SA
119 (WCC
)
[3]
[2021]
JOL 510
7
3
(GJ)
[4]
2011
(5)
SA
543
(SCA)
[5]
With
reference to
S
v Miles
1978
(3)
SA 407
(N)
at
410
-
411
[6]
With
reference to Hodge M Malek QC
(
ed)
Phipson
on Evidence
16
ed
(
2005
)
para
41
-
26
[7]
2015
JDR 2065
(
GP
)
[8]
1982
(3
)
SA
353 (W) at 355 -
6