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2024
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[2024] ZALMPPHC 184
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Mmamoleboge Investments CC v Minister Department of Public Works and Another (5086/2016) [2024] ZALMPPHC 184 (19 November 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
(LIMPOPO
DIVISION, POLOKWANE)
CASE
NO: 5086/2016
(1)
REPORTABLE: YES/
NO
(2)
OF INTEREST TO THE JUDGES: YES/
NO
(3)
REVISED:
YES
/NO
SIGNATURE:
Naude-Odendaal J
DATE:
19/11/2024
MMAMOLEBOGE
INVESTMENTS CC
PLAINTIFF
and
THE
MINISTER, DEPARTMENT
1
st
DEFENDANT
OF
PUBLIC WORKS
THE
DIRECTOR-GENERAL,
2
nd
DEFENDANT
DEPARTMENT
OF PUBLIC WORKS
JUDGMENT
NAUDE-ODENDAAL
J:
[1]
The Plaintiff instituted action against the Defendants for payment.
The Plaintiff’s
claim is in a nutshell that the Department of
Public Works appointed the Plaintiff for the provision of
ad hoc
maintenance services, over a period of three years. The Plaintiff
rendered services to the Defendants and invoiced the Defendants
for
the services rendered. The Defendants failed to pay the Plaintiff the
invoiced amounts and the Plaintiff seeks judgment for
the payment of
the invoiced amounts.
[2]
The Defendants conceded liability to make payment to the Plaintiff
for services rendered
on 5 August 2024. The only issue to be
determined by this court is the extant of liability.
[3]
On 19 August 2024, the Plaintiff tendered evidence of a single
witness, Mr. Samuel
Thema. In his evidence, Mr. Thema testified that
he was a director of the Plaintiff and had been a director during the
period of
the contract with the Defendants. He explained that it was
the Defendants who commissioned the Plaintiffs services, on an
ad
hoc
basis, and further testified that the Plaintiff invoiced the
Defendant for such services.
[4]
Mr. Thema referred to the invoices which were rendered pursuant to
the rendering of
services, and the bundle of invoices was handed in
as Exhibit A. The total amount of the outstanding invoices according
to the
Plaintiff is R1 242 035.64 (One Million, Two Hundred
Forty Two Thousand and Thirty Five Rand, Sixty Four Cents.), as per
the Plaintiff's Heads of Argument, although the Particulars of Claim
stated an amount of R1 245 035,64 (One Million,
Two Hundred
Forty Five Thousand And Thirty Five Rand, Sixty Four Cents).
[5]
The Plaintiff’s witness was not cross-examined and thus the
evidence by the
Plaintiff’s witness stands undisputed. The
Defendants further failed to put any version or intended evidence by
the Defendants,
to the Plaintiff.
[6]
The Defendants in their plea simply denied that any agreement was
ever concluded with
the Plaintiff and further that if there were ever
any services supplied by the Plaintiff as alleged, such services were
not sanctioned
by the Defendants and consequently no invoices for
payments could have been delivered to the Defendants. The Defendants
denied
owing the Plaintiff any amount of money.
[7]
Only during trial did the Defendants raise an entirely new defence,
which was not
pleaded and which defence or version was not put to the
Plaintiff during cross examination either. The Defendants
submitted
that they acknowledge that they owe the Plaintiff an amount
but the amount is far less than what is submitted on behalf of the
Plaintiff. According to the Defendants the amount due and owing is
R315 931.92 (Three Hundred and Fifteen Thousand, Nine Hundred
and
Thirty One Rand, Ninety Two Cents.)
[8]
The Defendants for the first time during the Defendants case, through
the witness
for the Defendants, Mr. Mokwetle, attempted to rely on an
Internal
Memorandum of the Department of Public Works.
This Internal Memorandum was not discovered by the Defendants and as
already stated
not pleaded either, despite being date stamped by the
State Attorney on 5 June 2019. The Defendants submitted that
according to
the Internal Memorandum, there were some invoices
rendered that needed rectification, or was not compliant in all
aspects and therefore
could not be paid, although the Defendants are
still willing to pay these invoices and tenders payment thereof if
rectified. Absence
rectification, the Department only owes the
Plaintiff an amount of R315 931.92.
[9]
In
Robinson v Randfontein Estates GM Co Ltd
1925 AD 173
at 198
the court held that: "The object of pleading is to define the
issues; and parties will be kept strictly to their pleas where
any
departure would cause prejudice or would prevent full inquiry. But
within those limits the court has a wide discretion"
- for
pleadings are made for the court, not the court for pleadings.
[10]
Identifying the issues informs the other party of the case they must
meet, or the relief sought.
The duty of the court is to adjudicate on
those disputes. A pleading is the foundation of the case a party
intends to make on trial.
If the foundation is weak, the case is
going to be weak.
[11]
In an article published in the
De Rebus, April 2024 Dr 6
,
it was stated that (and I deem it necessary that parties be reminded
of the importance of pleadings):-
"A pleading is
like a love letter, except that it is aimed at a counterparty. It
says something of the author and their approach
to the dispute. It
reveals more of the author and their approach to a matter, than would
meet the eye. Take care that your plea
rests on solid foundations.
Take care to state issues succinctly and effectively. If not, the
author may find themselves to have
'married in haste, but repenting
at leisure'."
[12]
In the present matter the Defendants made absolutely no foundation
for the defence they only
during trial sought to raise. The Plaintiff
was left in the dark and the Defendants attempted to litigate by
ambush. The Defendants
had more than 8 years to get their house in
order and prepare and plea a proper case. The Defendants filed a plea
and had an opportunity
to file an amended plea, and nowhere was any
of the issues raised during trial, pleaded.
[13]
In addition, the Defendants sought to rely for their defence on their
own internal memo, which
was not discovered by the Defendants, but by
the Plaintiffs. In
Ndala v Baloyi and Another [2023] ZAGPPHC 203;
5834/2022 (9 March 2023)
the following was stated at para 13
-14:-
"[13] The object
of discovery is to ensure that before the trial both parties are made
aware of all the documentary evidence
at the disposal of the parties
which in turn assist not only the litigating parties but the court to
discover the truth. Discovery
affidavits are regarded as prima facie
conclusive save where it can be shown that there are reasonable
grounds for believing that
the other party has the relevant documents
or that the other party is false in his or her assertions. See
Federal Wine and Brandy Co Ltd v Kantor
1958 (4) SA 735
(E)
at 749H.
[14] In
Swissborough
Diamond Mines and Others v Government of the Republic of South Africa
1999 (2) SA 279
(T)
at 320F-H it was held
'Accepting that the onus is on the party seeking to go behind the
discovery affidavit, the court, in determining
whether to go behind
the discovery affidavit, will only have regard to the following-
(i)
The discovery affidavit itself,· or
(ii)
The documents referred to in the discovery affidavit; or
(iii)
The pleadings in the action; or
(iv)
Any admissions made by the party making the discovery affidavit; or
(v)
The nature of the case or the documents in issue."' (Footnotes
omitted)
[14]
The author of the internal memorandum has further not been called to
testify nor has the Defendant
tendered an explanation why not. The
evidence contained in the internal memorandum should in my view be
regarded as inadmissible.
[15]
In my view, the sudden new defence raised only during the Defendants'
case at trial, as well
as the reliance by the Defendants on the
Internal Memo which bears the date stamp of as early as 5 June 2019
by the State Attorney,
and which the Defendants only now shortly
before trial attempted to re-date to reflect a date of 16 August
2024, should be rejected
and disregarded. The Defendants did not act
or litigate in good faith or bona fide in the present matter, to the
prejudice of the
Plaintiff for over 8 years. In my view, the parties
should be kept strictly to their pleas in the present matter as the
departure
now sought would cause severe prejudice or would prevent a
full inquiry as the Plaintiff has already closed its case. In the
result
the Plaintiff's claim on the amount claimed, stands to
succeed.
[16]
As a general rule, costs follow the result. There is no reason to
deviate in the present matter
from the general rule. The Plaintiff
applied for a punitive cost order against the Defendants in that it
was submitted that the
Defendants acted
mala fide
and utilized
every possible delaying tactic in order not to finalize the present
matter.
[17]
I am in agreement with the Plaintiff that the manner in which the
Defendants approached this
matter and dealt with the litigation
leaves much to be desired and should be frowned upon, however,
although the Defendants unduly
delayed the matter, their conduct is
not of such a nature that a punitive cost order will be justified.
ORDER:
[18]
In the result, I therefore make the following order:-
1.
The Defendants are ordered to pay the Plaintiff an amount of
R1 242 035.64
(One Million, Two Hundred Forty Two Thousand
and Thirty Five Rand, Sixty Four Cents.)
2.
Prescribed interest on the amount of R1 242 035.64
calculated
a tempore morae
at the rate of 10% per annum to
date of full and final payment.
3.
The Defendants are ordered to pay the Plaintiff’s cost of suit.
M.
NAUDE-ODENDAAL
JUDGE
OF THE HIGH COURT,
LIMPOPO
DIVISION,
POLOKWANE
APPEARANCES:
HEARD
ON
19 AUGUST 2024
HEADS
OF ARGUMENT FILED
13 SEPTEMBER 2024
JUDGMENT
DELIVERED ON
19 NOVEMBER 2024.
FOR
THE PLAINTIFF
Adv. M. Manala
INSTRUCTED
BY
Ndlovu F. Attorneys Inc
Polokwane
info@ndlovulaw.co.za
FOR
THE DEFENDANTS
Adv. NM. Seleso
INSTRUCTED
BY
The State Attorney: Polokwane
PMalatji@justice.gov.za
This
judgment was handed down electronically by circulation to the
parties' representatives by email. The date and time for hand-down
of
the judgment is deemed to be 19 NOVEMBER 2024 at 12h00