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[2026] ZANCHC 47
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Malome Business Enterprise CC v Member of the Executive Committee for the Department of Roads and Public Works, Northern Cape (2492/2023) [2026] ZANCHC 47 (27 March 2026)
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IN
THE HIGH COURT OF SOUTH AFRICA
(NORTHERN CAPE
DIVISION, KIMBERLEY)
Case
No:
2492/2023
Reportable: YES /
NO
Circulate to Judges: YES
/ NO
Circulate to Regional
Magistrates: YES / NO
Circulate to
Magistrates:YES / NO
In
the matter between:
MALOME
BUSINESS ENTERPRISE CC
Plaintiff / Excipient
and
MEMBER
OF THE EXECUTIVE COMMITTEE
FOR
THE DEPARTMENT OF ROADS AND
PUBLIC
WORKS, NORTHERN CAPE
Defendant / Respondent
Neutral
citation:
Malome Business Enterprise CC v MEC
for the Department of Roads and Public Works, Northern Cape
(Case No: 2492/2023)
Coram:
Coetzee AJ
Date
of Judgment:
27 March 2026
ORDER
[1]
The exception is upheld.
[2]
The Defendant is granted 15 (Fifteen) days
to amend the plea.
[3]
Failing to amend its plea, the plea of
set-off shall be struck out.
[4]
No order as to costs.
JUDGMENT
[1]
The plaintiff has filed an exception to the defendant’s
alternative plea on
the grounds that it fails to disclose a defence.
Specifically, the exception challenges the plea of set-off raised by
the defendant.
[2]
The essential requirements for a plea of set-off are well
established. It must allege
that:
[1]
(a)
The plaintiff is indebted to the defendant.
(b)
The debts are mutual and between the same parties in the same
capacities.
(c)
The debts are liquidated or readily ascertainable in money; and
(d)
The debts are due and payable at the time the set-off is invoked.
[3]
In the present matter, the defendant pleads as follows:
“
1.
The Defendant pleads that in the event the Court finds that it is
liable for
the claim above, his liability or indebtedness towards the
Plaintiff was extinguished by set-off by virtue of the following
facts:
a)
On 28 September 2017, there was a site handover of the
project, the Plaintiff has a period of 12 months to complete the
construction
of the clinic by at least 28 September 2018.
b)
On 19 December 2018, there was a request for an extension of
time due to the Plaintiff’s failure to complete the task within
the stipulated timeframes as per the agreement.
c)
There was an extension of time to enable the Plaintiff to
complete the construction of the clinic as per the agreement, which
extension
is not disputed.
d)
In terms of the revised timeframes for the completion of the
work, the Plaintiff has until 12 June 2019 to complete the
construction
of the clinic, which the Plaintiff failed to do.
e)
On 13 June 2019, the Defendant imposed penalties for the delay
in completion of the project for an amount of R1 164 000.00,
this amount has not been paid to the Defendant by the Plaintiff.
Even if the Plaintiff were to succeed on the main claim,
this amount
will cancel their claim in the form of set-off of the contractual
liability which is disputed by the Defendant for
the reasons advanced
above.
f)
Second to this, the Defendant imposed the second penalty when
the Plaintiff failed again to complete the construction of the clinic
within the stipulated timeframes, of R714 000.00.
g)
The entire amount which the Plaintiff owes the Defendant in
the present case, which comes as a result of penalties imposed due to
breach of agreement for failure to complete the construction work,
amount to R1 878 000.00.”
[4]
The plaintiff’s counsel, Mr Eillert, submitted that the
following essential
averments to sustain a plea of set off has not
been pleaded:
“
21.1)
That the alleged debt for penalties is liquidated.
21.2)
The facts relied upon for contending that the alleged debt for
penalties is liquidated.
21.3)
That the alleged debt for penalties is due and payable.
21.4)
When the alleged debt for penalties fell due and payable.
21.5)
The facts relied upon for contending that the alleged debt for
penalties is due and payable.”
[5]
The above referred to submission is correct and the exception should
be upheld.
.
ORDER
:
1.
THE EXCEPTION IS UPHELD.
2.
THE DEFENDANT IS GRANTED 15 DAYS TO
AMEND THE PLEA.
3.
FAILING TO AMEND ITS PLEA, THE PLEA
OF SET-OFF SHALL BE STRUCK OUT.
4.
NO ORDER AS TO COSTS.
COETZEE AJ
HIGH COURT OF SOUTH
AFRICA
NORTHERN CAPE DIVISION,
KIMBERLEY
For
the Plaintiff / Excipient:
ADV
A EILLERT
On
instruction of:
MacRobert
Inc.
c/o
Roux Welgemoed Du Plooy
Kimberley
For
the Defendant / Respondent:
ADV
RC MATHEVULA
On
instruction of:
Motlhamme
Pino Attorneys
Kimberley
[1]
McKelvey
v Cowan NO
1980 (4) SA 525
(ZSC)
and
Trope
v South African Reserve Bank
1992 (3) SA 208
(T)