IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION , PRETORIA)
Case No: 012524/2024
(1) REPORTABLE :no
(2) OF INTEREST TO OTHER JUDGES :no
(3) REVISED:
23 MAY 2025
SIG ATURE DATE
In the matter between:
MOSEPELO TRADING CC Plaintiff
and
THE CITY OF TSHWANE METROPOLITAN Defendant
MUNICIPALITY
This judgment is prepared and authored by the Judge whose name is reflected as
such and is handed down electronically by circulation to the parties I their legal
representatives by email and by uploading it to the electronic file of this matter on
CaseLines. The date for handing down is deemed to be 23 May 2025.
JUDGMENT
2
RETIEF J
INTRODUCTION
[1] These short reasons follow after hearing argument in a summary judgment
application in terms of uniform 32. The plaintiff in its notice seeks judgment against
the defendant in an amount of R 7,738,616.06 [claimed amount] together with
interest and costs . The defendant opposes the relief and filed opposing papers as
envisaged in terms of uniform rule 32 (3)(b).
[2] At the date of the hearing though and, in argument , counsel for the plaintiff
rather now moved for judgment for a part of the claimed amount, being an amount
of R 2,576,332.97 together with interest and costs. He contended that this was
possible and in so doing, relied on an allegation in the particulars of claim read
together with a report referred to as POC3.1 to bolster his argument. He argued that
POC3.1 was an acknowledged of indebtedness made by the defendant in the sum
of R 2,576,332.97 arising from the pleaded facts. In consequence then, it was
argued on behalf of the plaintiff that it was entitled to claim for judgment in part and
that the defendant could then be granted leave to defend the balance of the claimed
amount as envisaged in terms of rule 32(6)(b)(iii)1.
[3] In short, the defendant in its plea admits the content of the report POC3.1 but
denies that it constitutes an acknowledgment of debt. It furthermore argues that the
amount of R 2,576,332.97 as reflected in POC3.1, is not clearly distinguishable from
the claimed amount. It argues that the plaintiff relies on POC4 being a schedule of
claimed invoices in support of the claimed amount and that no /is has been pleaded
nor established between POC4 and the facts giving rise to POC3.1 and, furthermore
that the amount of R 2,576,332.97 is not even clear from POC4. Therefore it
contends that the amount now claimed in argument is not distinguishable and that
it cannot be separated from the claimed amount. A clear separation and how and
1 Meyer Hire Ltd t/a Meyer Hire v Filzo Enterprises (Pty) Ltd and Others (621/2023) (2023] ZAECMKHC 96
(12 September 2023)
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when the R 2,576,332 .97 arose is also a pivotal enquiry as the defendant has raised
a special plea of prescription.
[4] This requires a brief look at the pleaded case and POC3.1 and POC4.
DISCUSSION
[5] it is common cause that subsequent to a tender process the plaintiff and the
defendant entered into a written Service Level Agreement [SLA] on the 8 May 2017
in terms of which the defendant would hire vehicles, machinery and equipment from
the plaintiff during the period April 2017 to August 2021. The successful tender was
confirmed via a letter dated the 31 March 2017 addressed to the plaintiff headed
"TENDER FOR THE CORPORATE HIRE OF GENERAL CONSTRUCTION
VEHICLES, YELLOW PLANT, REFUSE REMOVAL VEHICLES, SPECIALISED
VEHICLES, EQUIPMENT AND MACHINES FOR THE CITY OF TSHWANE". The
subsequently signed SLA was attached to the particulars of claim as POC2. The
only express term of the SLA pleaded was that the tender rates would be non-firm
prices subject to escalation .
[6] Thereafter and on the 27 July 2021, just before the expiration of the contract
term, the plaintiff refers to a correspondence it received from the defendant namely
POC3 which is headed "FEEDBACK OF MATTERS RAISED BY CONTRACTORS
AND SUB-CONTRACTORS IN RESPECT OF LANDFILL FEES". No mention of
landfills nor how it arises in respect of the SLA is pleaded.
[7] Therefore , the relevance of POC3 and its /is with the pleaded facts pertaining
to the SLA in support of the payment of the claimed amount is unclear. Upon a
reading of POC3, it was clear that it was addressed to the plaintiff to inform it that
the Mayoral Committee of the defendant had taken certain decisions the previous
month on the18 May 2021 relating to, inter alia, how the plaintiff was to pay its landfill
fees to the defendant. POC3.1 relied on by the plaintiff was a report tendered to the
Mayoral Committee .
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[8] The content of POC3 now placed POC3.1 in context. The purpose of the
report at POC3.1, was to request the Mayoral Committee to, inter alia, nominate the
City Manager to negotiate with waste contractors and sub-contractors. The report,
in essence was a means to consider the Cities financial exposure amidst a waste
service disruption crisis. In this way, a recommendation to write-off of the landfills
fees as against sub-contractors invoice was tabled. The resolutions adopted by the
Mayoral Committee in no way resolved that any of the amounts mentioned in the
tables used in such report as an illustration were, as a fact an acknowledge of its
debt to each such sub-contractor mentioned and that such should be paid to them.
Resolution 3 merely noted that sub-contractors were owed money.
[9] Following from the accepted recommendations recorded in POC3.1 the July
2021 letter, POC3, followed as a means to inform the plaintiff that landfill fees were,
as a fact, to be written-off and deducted from its invoices upfront. The defendant in
POC3 gave an undertaking that its corporate finance department would be
preparing individual statements to each sub-contractor , ostensibly including the
plaintiff, indicating what had been resolved by the council. No such individual
statement prepared by the corporate finance department has been attached by the
plaintiff to support any amount to its particulars of claim. Furthermore, it is unclear
from the pleaded particulars whether these invoices refer to the monthly invoices
raised in terms of paragraph 10.4 of the SLA or are those relied on in POC4 .
Paragraph 10.4 of the SLA too is not pleaded nor the plaintiffs obligation to pay
landfill fees in terms of the SLA.
[1 O] The plaintiffs pleaded case relying on the SLA as merely hiring equipment
and vehicles and how set off of landfill obligations by it, now arises and relevant to
the claimed amount confusing.
CONCLUSION
[11] POC3.1 is not an acknowledgment of debt on the pleaded facts. On the
pleaded facts it is impossible to clearly severe the amount and origin of the R
2,576,332.97, at this stage of the litigious process as pleaded and argued. The
defendant possesses a bona fide defence to the claimed amount and to the part
thereof claimed in summary judgment proceedings . This too, is stated bearing in
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mind that if any uncertainty exists , as in this case, it is impossible, at this stage, to
discern whether any of the amounts which make up the R 2,576,332.97 are reflected
in the invoices as summarised in POC4 and if so, whether they have then, as
argued, not prescribed . The defendant's material grounds relied on to demonstrate
a bona fide defence succeeds. The application for summary judgment in part, must
fail.
[12] The following order:
1. The application for summary judgment is dismissed .
2. The defendant is granted leave to defend the plaintiff's claim.
3. Costs to be costs in the cause.
Appearances:
For the Plaintiff:
Instructed by attorneys:
For the Defendant Adv NG Louw L.A. RETIEF
Judge of the High Court
Gauteng Division
Cell: 073 352 2914
Email: nlouw@circle.co.za
Albert _Hibbert Attorneys
Adv TM Makola
Instructed by attorneys :
Date of hearing:
Date of judgment: Kutumela Sithole Attorneys Inc.
21 May 2025
23 May 2025 6