IN THE HIGH COURT OF SOUTH AFRICA
KWAZULU -NATAL LOCAL DIVISION, DURBAN
CASE NO: D7596/2020
In the matter between:
BLESS JOE TRADING CC PLAINTIFF
and
ETHEKWINI MUNICIPALITY DEFENDANT
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ORDER
___________________________________________________________________
In the premises the following order is made:
1. The defendant is directed to pay the market related amount of damages
from 1 April 2020 to 17 March 2021 to the plaintiff which the parties may
agree upon or which the plaintiff may prove.
2. Interest on the agreed or proved amount at the rate calculated from 1 April
2020 to date of final payment.
3. The defendant is to pay the plaintiff ’s costs of the action , including the
costs of two counsel , on scale C.
4. The defendant’s counterclaim is dismissed.
5. The defendant is to pay the plaintiff’s costs of the counterclaim , including
costs of two counsel on scale C.
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JUDGMENT
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2
Mathenjwa J
Introduction
[1] The plaintiff initially brought an application against the defendant for payment
of invoices issued by the plaintiff in respect of services rendered in terms of a
contract entered into between the parties. The plaintiff further claimed damages
arising from the defendant’s failure to restore possession of tents and ablution
facilities which were leased by the plaintiff to the defendant to accommodate
displaced people .
[2] On 22 February 2022 the matter came before Kruger J who referred it to trial .
Subsequently the plaintiff delivered its declaration , the defendant delivered a plea
and the rules provided for in the conduct of a trial proceedings were applied . The
defendant further delivered a claim in re convention in terms of which it sought an
order declaring invalid the contract entered into by the parties .
Historical background
[3] In April 2019 the defendant experienced devastating flooding resulting in
homelessness amongst many people who occupied informal accommodation. In line
with its constitutional mandate to provide shelter , more specifically emergency
housing, the defendant called for quotations for the provision of temporary
emergency accommodation in the form of tents and ablution facilities at Tehuis in
Umlazi Township . When calling for quotations the defendant deviated from the
normal procedures provided for in its Supply Chain Management Policy (SCM policy )
in accordance with clause 36 thereof which authorise s deviation from normal
procurement procedures during emergency or disaster situations.
[4] The plaintiff submitted its bid for the provision of services in the amount of
R190 000 per day for a period of 14 days. The bid comprised of ;
(a) one quantity of 15 x 30 Marque es;
(b) one quantity of 15 x 30 flooring ;
(c) eight public toilets ;
(d) six electricity ; and
(e) 50 chairs .
3
The plaintiff’s bid was successful and it subsequently provided tent and ablution
facilities which accommodated 150 people at the site.
[5] The plaintiff continued to provide services in terms of the original contract
after the expiry of 14 days. On 31 March 2020, the plaintiff received an email from
the defendant terminating the contract and indicating that alternative shelter would
be arranged by the defendant for the people who were occupying the plaintiff ’s tent
and other facilities. However, despite the defendant indicating that the people would
be placed in alternative shelter , the plaintiff’s marquee and ablution facilities were not
removed from the premises and the defendant did not provide alternative
accommodation for the people . The plaintiff continued submitting invoices for the
provision of services to the defendant in respect of its facilities which was used by
the occupants after termination of the contract but the defendant failed to pay the
plaintiff ’s invoices in respect of services rendered after 31 March 2020 being the date
on which the defendant terminated its contract with the plaintiff . On the date of
institution of this proceedings the plaintiff claims for payment of R73 008 000, plus
Vat at 15% and interest .
Issues at the trial
[6] The plaintiff called Mr Ndumiso Ndlela , member of the plaintiff company , who
testified that h e was called by one of the defendant ’s employee s to come on site
behind the Durban City Hall for a tender briefing. He attended the briefing together
with other service provider s. He was told to submit quotation s for a marquee and
ablution services for 150 people who had been displaced due to the flood ing. He
prepared the quotation and submitted it on the same date. The following day he was
telephonically informed by the defendant ’s employee Ms Balungile Gasa that his bid
was successful and he had to erect the marquee on site . The following day , 27 April
2019 he put up the marquee and other facilities. Two days a fter he had erected the
tent structure it rained and he was asked by a municipal councillor Mr Mthembu who
was in company of other people from the defendant’s disaster management section
to put up water proof ing and carpeted flooring to accommodate the rain . After adding
the flooring to the quotation, the plaintiff’s fees increased from R190 000 to R208
000 per day.
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[7] After the expiry of 14 days the plaintiff continued accommodating the
displaced people in its tent because the defendant did not have alternative shelter to
accommodate the people. According to Mr Ndlela the plaintiff also provided other
services to the displaced people including food at its own cost with no charge to the
defendant. The defendant continued to pay the plaintiff the amount of R208 000 per
day for services rendered even after the expiry of 14 days, which was the t ime
period agreed between the parties for the provision of services . Subsequently Mr
Ndlela received an email from Mr Ngubane , an employee of the defendant , informing
him that the agreement for provisions of services between the parties was
terminated with effect from 31 March 2020.
[8] Subsequently on 31 March 2020 Mr Ndlela went to the site to collect the
marquee and other equipment , but was prevented by the occupants of the tent from
removing it, who angrily told him that they would not relocate because the defendant
had not provided them with alternative accommodation. O n 27 May 2020 he
received an email from an employee of the defendant , Mr Pat el, asking him to
reduce the daily fee for rendering services by 40 percent to which he did not agree.
On 15 July 2020 he received an email from the defendant’s attorneys requesting him
to remove his tent and other equipment from the site . When he went to the site to
remove the tent the occupants again did not allow him to remove it and the
equipment . He was finally able to remove the equipment and the tent as well on17
March 2021 when he was assisted by the defendant who provided security and
secured the presence of members of South African Police Services on the site.
[9] Under cross -examination by the defendant’s counsel Mr Ndlela stated that he
could not remember the name of the person who called him to attend the briefing on
the site. However, on arrival at the site he found Mr Mbhele, an employee of the
defendant , addressing the people. Mr Mbhele told him that once he had completed
the quotation he had to deliver it at the disaster section of the defendant . When it
was put to him by the defendant’s counsel that one of the quotations which he also
delivered to Ms Gasa belonged to Crismarly Trading Pty Ltd in which he was a
former director, he admitted that he was a former direct of Crismarly, but he had
sold it to one Wiseman. When he was confronted with the fact that in his quotation
and invoice he charged the defendant R14 400 per day for electricity whereas the
5
electricity was connected to a hostel where it was supplied by the defendant, he
contended that he had an informal agreement with the people from the hostel to pay
them for the electricity which was connected to the hostel. When asked whether he
could produce a bill or invoice issued by the hostel for the el ectricity charge he
contended that he would pay R5 000 cash to the hostel for the duration of the
contract but he was not officially billed for consumption of the electricity at the site .
[10] When asked whether he informed the defendant that on 31 March 2020 he
was at the site to remove his equipment, he responded that he did not do so, neither
did he phone the defendant whilst on site to inform it that he was on site, nor did he
call the police to ask for assistance because the occupants of the marquee were
preventing him from removing it. He made a second attempt to remove the
equipment on 27 July 2020 after he had received an email from the defendant’s
attorneys informing him to remove his equipment from the site. When he was
informed by the defendant’s counsel that both employees of the defendant, M essrs
Ngubane and Pat el who w ere administering the tender from the side of the
defendant never dealt or communicated with him but they were communicating with
a certain Mr Msimango on all issues relating to the tender and therefore Ndlela had
no knowledge of the issues he was testifying about in court , he contended that he
would be present at other meetings between Mr Msimango and the defendant ’s
employees .
[11] The defendant called Ms Gasa who is the administration manager at the
defendant’s disaster management unit to testify . She stated that she received three
quotations contained in one envelope that was delivered by Mr Ndlela to her . Her
manager had phoned informing her that someone would com e and deliver the
quotations. She stated that when the defendant procures services under an
emergency situation such as in the present circumstances it would call prospective
service providers either among the service providers they had previously worked
with or one s who had provided similar services to a provincial department . She
disputed that she called Mr Ndlela to inform him that his bid was successful and she
denied that she negotiated the terms of the contract with him. She did not receive
any other quotations other than Mr Ndlel a.
6
[12] Under cross -examination by the plaintiff ’s counsel Ms Gasa dispute d that she
communicated with Mr Ndlela inform ing him that his bid was successful but admit ted
that someone from the defendant’s office would have phoned him . She was
consistent in stating that she received the three quotation s contained in one envelop
from Mr Ndlela. She confirmed that when the tender was award ed to Mr Ndlela
during the state of disaster the provision of clause 36 of the defendant ’s SCM policy
on procurement was properly applied.
[13] Mr Patel Phalu , the head of the defendant’s department of human settlement
testified that on 31 March 202 0 he received instruction s from Mr Ngubane informing
him that the plaintiff’s services with the defendant had been terminated and he had
to ensure that the people occupying the plaintiff’s tent were placed in another
shelter. On 31 March he could not relocate the displaced people because there was
no alternative accommodation available , the country was under lockdown level five
and people were not allowed to move. He continued looking for a place to move the
people for at least a period of six months after 31 March 202 0. He also wrote to the
plaintiff requesting a reduction of daily fees because some of the occupants of the
tent had already moved away from the site and return ed to their original places.
After the negotiation for a reduction failed Mr Patel informed Mr Msimango with
whom he was communicating that the defendant would not continue with the original
contract because the fees charged by the plaintiff w as extremely high .
[14] Eventually the defendant built houses for the displaced community about
three kilometres away from the site where they were accommodated. On 17 March
2021, the people were moved and only then did the plaintiff remove its tent and
other facilities from the defendant’s site. Under cross -examination by the plaintiff’s
counsel Mr Patel said that even if Mr Ndlela were to remove the tent on 31 March
2020 the defendant would not have placed the people in an alternative
accommodation because it did not have such accommodation .
[15] Therefore, the issues for determination in this matter are:
(a) Firstly, whether the continued occupation of the plaintiff’s marquee and
ablution facilities by the displaced people who were placed on the property in
7
terms of the lease agreement between the plaintiff and the defendant after the
termination of the lease agreement constitute d an act of holding over of the
plaintiff's property.
(b) Secondly, i f so, whether the defendant, being a sphere of government
responsible for providing emergency accommodation to the displaced people
is liable to the plaintiff for the holding over of its property by the displaced
people.
(c) Finally, i n arriving at a conclusion that the defendant is liable to the plaintiff for
the conduct of the displaced people I have to determine whether the conduct
of the defendant either by omission or action made it practically impossible
for the plaintiff to take possession of its property after the termination of the
lease agreement.
Analysis
[16] The fierce debate between the parties was whether the plaintiff was prevented
by the occupants of the tent to remove and take possession of the tent . The
defendant submitted that the plaintiff voluntarily refrain ed from taking possession of
the tent for purposes of continuing to charge the defendant exorbitant fees while the
displaced people remain ed in occupation of the tent. It is worth mentioning that the
only witness called by the plaintiff to support its version was evasive and not
impressive when answering questions. However, in light of the evidence by the
defendant ’s own witness that even if the plaintiff was not prevented by the occupants
from remov ing the tent the defendant would not have moved the people because
there was no alternative accommodation , the issue of whether the people remained
in the tent because they prevented the plaintiff from taking possession thereof has
become academic .
[17] Section 26 of the Constitution grants everyone the right of access to adequate
housing. It is trite that the provision of emergency accommodation by government
forms part of th is right and the defendant as a sphere of government is
constitutionally obliged to provide relief to people who are living in ‘intolerable
conditions o r crisis situations’ .1 It is apposite that the plaintiff leased the tent and
1 Cape Town City v Commando and Others 2023 (4) SA 465 (SCA) para 6 .
8
other facilities to the defendant . This was in line with the constitutional duty
imposed on the defendant. It is a trite principle of our law that ‘the hirer of an article
is obliged to return it in the same condition in which it had been at the outset of the
period of hire ’.2 Therefore, it was incumbent upon the defendant to remove the
people from the tent at the expiration of the agreement to enable the plaintiff to take
possession of the tent. The defendant , if it had the will to remove the people from
using the plaintiff’s property , could have secured assistance from law enforcement
agencies . It is understandable that the defendant could not remove the people
because it had no alternative accommodation to place them . Therefore, it is the
failure by the defendant to remove the people from the plaintiff’s tent and place them
in alternative accommodation that resulted in them occupying the tent after the
defendant had terminated its agreement with the plaintiff.
[18] It is common cause that the defendant initially informed the plaintiff that the
agreement for accommodating the displaced people was terminated with effect from
31 March 2020. It is not in dispute that after 31 March 202 0 the defendant did not
remove the people from the tent because there was no alternative accommodation
available . Further , it is common cause that the defendant had approached the
plaintiff for a new contract which would result in a reduc tion of fees by 40 percent
from the original contract . The reason for the reduction being that some of the
people who had initially occupied the property had moved back to their original
accommodation and the number of people occupying the property had been reduced
from 150 to 70 . It is further common cause that the parties could not agree on a
new contract with reduced fee s. Therefore, the occupation of the tent by the
displaced people after the cancellation of the contract constitute d a holding over. The
people held over the tents and prevented the plaintiff from taking possession thereof .
[19] The defendant’s instruction to the plaintiff to remove its tent knowing that
there was no alternative accommodation to place the people was a mockery. It is
quite clear that the plaintiff would not have been able to remove people from the tent
when the people did not have alternative accommodation. If the defendant were
genuine about moving people from the tent it would have assisted the plaintiff to do
2 Mutual Construction Co (Tvl) (Pty) Ltd v Komati Dam Joint Venture 2009 (1) SA 464 (SCA) para 6 .
9
so and make available an alternative accommodation for the displaced people. I do
not agree with the argument that it was not the plaintiff’s concern whether there was
alternative accommodation for the people. This matter involves vulnerable people
who owing to their socio - economic conditions were exposed to intolerable
condition s, at the peak of the COVID 19 pandemic . It would not have been humanly
possible for the plaintiff to remove them from the tent and leave them in an open
space with no shelter over their heads.
[20] This case is distinguishable from a case where the lessor cancel s the contract
and the less ee continue s occupying the leased property after cancellation thereof. In
that instance, the lessor would be entitled to sue the lessee for the past rental
amount because the lesse e had not vacated the leased premises.3 I agree with
Hawthorne’s view that ‘termination of the lease agreement causes the obligation to
pay rent to be replaced with an obligation to return the leased thing’.4 Therefore , in
the present case where the lessee cancel led the contract because it disagreed with
its terms; attempt ed to negotiate for a new contract on different terms; fail ed to reach
agreement with the lessor about the new contract, but holds over the leased
property, the lessor’s claim against the lessee is based on the conduct of the lessee
in failing to return the leased property to the lessor after termination of the contract.
Consequently, the lessor is entitled to consequential damages as a result of the
holding over of its property by the lessee.5
[21] Based on the evidence before court it is not disputed that in 2019 the plaintiff
rendered services to 150 people; in 2020 the number of people was reduced to 70 .
Thus, the people catered for by the plaintiff was reduced by more than a half. I n the
original contract the plaintiff charged the defendant the amount of R14 400 daily for
electricity consumption at the site whereas the electricity was connected at the hostel
where it is supplied by the defendant. In the event that it is found that the plaintiff
charged the defendant for electricity for which it did not incur costs for its connection
to the site, that is likely to reduce the daily fee for the electric ity. In the light of the
3 Sapro v Schlinkman 1948 (2 ) SA 637 (A) at 644 .
4 L Hawthorne ‘The nature of the claim for holding over: South African Law’ Fundamina 16 (2) 2010 ,
52 at 58.
5 Phil Morkel Ltd v Lawson and Kirk (P ty) Ltd 1955 (3) SA 249 (C) at 254E -F.
10
above the court is not able to fix a market related costing for the parties because no
information was placed before court in respect thereof.
The counter claim
[22] This brings me to the counterclaim. Regarding the contention by the plaintiff ’s
counsel tha t the defendant should not be condoned for the late filing of its
counterclaim it is instructive that Uniform r ule 24(1) requires a defendant to deliver its
counterclaim together with the plea within the prescribed time frame . In the present
matter the plaintiff instituted the action and the defendant delivered its counterclaim
at the same time with its plea to the plaintiff’s declaration. Therefore, the defendant
acted within the time frame prescribed by the rules for delivery of a counterclaim. In
this regard condonation was not required by the defendant.
[23] The defendant’s counterclaim is broadly based on its failure to comply with
the provisions of s 217 of the Constitution, Preferential Procurement Policy
Framework Act6 and SCM policy . A conclusion on whether the award of the tender
to the plaintiff was illegal should be based on evidence led before court. The version
of the defendant’s own witnesses is that the tender was awarded in terms of its
SCM policy which allow ed deviation from the normal tender process during times of
emergency and disaster. It is the defendant’s own version that neither the
Constitution nor any legislation was contravened when it procur ed the plaintiff’s
services.
[24] Despite contending that all three quotations were delivered by Mr Ndlela to
Ms Gasa in one envelop , the defendant does not demonstrate how the delivery of
three different quotations from different bidders by one person contravene d the
provisions of fair and transparent procurement of services in terms of the
Constitution and legislation. Mr Ndlela is a former director of one of the bidding
companies, but he is no longer the director of that company.
[25] The court does not have to accept the ipse dixit of the defendant’s witness,
more particularly because corruption will only occur if the defendant’s employees
6 Preferential Procurement Policy Framework Act 5 of 2000.
11
collude with some of the bidders. It is worth mentioning that particularit ies of the
tender such as the daily fee of R190 000 which was ultimately increased to R208
000 for accommodating 150 people and the daily fee of R 14 400 for electricity
supply which was allegedly connected at the hostel where it was supplied by the
defendant, may raise eye brows. However , the defendant was in a good position to
investigate these issues and place evidence before court regarding irregularities
committed during the procurement process , if any . In light of the defendant’s own
witnesses confirm ing that the tender process was correctly followed no irregularities
were committed , and in the absence of any evidence to the contrary, this court has
no bas is to conclude that the award of the tender to the plaintiff during the state of
disaster was illegal. For that reason, the counterclaim must fail.
Costs
[26] There is no reason to deviate from the principle that costs should follow the
results. Therefore, in respect of the main action the defendant is liable to pay the
plaintiff ’s costs which include the costs of the two counsel , on scale C. The
complexity of the matter required the attention of two counsel , including senior
counsel. Likewise, the defendant should bear the plaintiff ’s costs for the
counterclaim.
Order
[27] In the premises the following order is made:
1. The defendant is directed to pay the market related amount of damages
from 1 April 2020 to 17 March 2021 to the plaintiff which the parties may
agree upon or which the plaintiff may prove.
2. Interest on the agreed or proved amount at the rate calculated from 1 April
2020 to date of final payment.
3. The defendant is to pay the plaintiff’s costs of the action , including costs of
two counsel , on scale C.
4. The defendant’s counterclaim is dismissed .
5. The defendant is to pay the plaintiff’s costs of the counterclaim , including
costs of two counsel on scale C .
12
_______________
Mathenjwa J
Date of hearing: 17, 18, 19 and 20 March 2025
Date of judgment: 11 June 2025
Appearances:
Plaintiff ’s counsel: Mr I Pillay SC
Assisted by: Ms Z Rasool
Instructed by: Anitha D Chetty & Associate
Defendant ’s counsel: Ms K Shazi
Instructed by: Luthuli Sithole Attorneys