South Africa: Limpopo High Court, Thohoyandou

IN THE HIGH COURT OF SOUTH AFRICA

LIMPOPO DIVISION, THOHOYANDOU LOCAL DIVISION

CASE NO. 112/2016

DATE: 3 MAY 2016

In the matter between;

SHARON PIPELINE SPECIALISTS CC.........................................................................PLAINTIFF

And

VHEMBE DISTRICT MUNICIPULITY.......................................................................DEFENDANT

JUDGMENT

SEMENYA AJ

[1] The applicant (plaintiff) brought an application for summary judgement against the respondent (defendant) for payment of an amount of R2 488 975.22 for services rendered based on a contract entered into by the parties. The parties shall, for the purposes of this judgement, be referred to as in the main application.

[2] The point in limine raised by the defendant that the plaintiff's claim does not fall within the purview of the claims upon which the plaintiff may apply for summary judgement was dismissed.

[3] The facts that gave rise to the action are briefly that on or about the 15^th March 2014, the defendant appointed the plaintiff to undertake the water pipeline condition survey for Malamulele, Thohoyandou and Makwarela Region. Having rendered the services, the plaintiff issued three invoices dated the 26^th July 2014, 8^th October 2014 and 19^th October 2014 respectively. The first two invoices were honoured. The 3^rd invoice which is the subject matter of this application was however not honoured. The allegations are that an engineer representing the defendant, who was allegedly acting within the scope of his duties and in an official capacity, signed and or authorised and or certified payment of this 3^rd invoice on presentation by the application. The document so signed and relied upon by the plaintiff is attached to the founding affidavit.

[4] The application is opposed on the grounds that the plaintiff failed to render the service at all, alternatively to the satisfaction of the municipality, alternatively in accordance with the agreed specifications contained in the tender documents and that the defendant is accordingly not liable for payment of the sum claimed in the 3^rd invoice.

[5] The plaintiff states that in his opinion the defendant has no bona fide defence to the action and that notice of intention to defend has been delivered solely for the purpose of delay.

[6] In an application of this nature, the court should determine whether the defendant's defence is good in law and whether it if bona fide. The court has the discretion to decide in the defendant's favour even if the defence is neither bona fide nor good in law. However the discretion has to be exercised judiciously-Mnweba v Maharaj [2001] All Sa 265 (C).

[7] Plaintiff argued that the defendant does not dispute the allegations that its official signed the document submitted to it by the plaintiff after completion of the work it was tasked to perform. That the three defences raised by the defendant are not good in law in that its own official has certified in the document that he has inspected the project and that the work has been satisfactorily executed according to specification. The said official further certified that the quantities and prices are correct and that payment can be made.

[8] The defendant on the other hand submitted that the court should take into consideration the fact that the defendant is an institution that is entrusted with public money and that it is expected to act in the best interest of the public. That given an opportunity, it will be able to prove that the plaintiff is not entitled to the large sum that it is claiming. It was further submitted that there are other officials who were supposed to sign the very same document relied upon by the plaintiff and who have not so done. These officials are the Water Service Manager, implementing agent and others and that this lends support to the defendant's reasons for opposing the application as they too are required to certify that the work was properly done.

[9] I find that, from the material facts placed before me, it is reasonably possible that the defendant has a good defence and that an injustice may occur* if the application is granted.

[10] I make the following order;

i) Application for summary judgement is dismissed;

ii) The defendant is granted leave to defend the action;

iii) costs to be costs in the cause.

M V SEMENYJA

ACTING JUDGE OF THE HIGH COURT OF SOUTH AFRICA: LIMPOPO DIVISION.

VHUTSHILO NANGE

ATTORNEYS

APPLICANT

ATTORNEYS

AND

MABOKU MANGENA ATTORNEY

C/O MATHOBO RAMBAU & SIGOGO ATTORNEYS RESPONDENT ATTORNEYS