Bushbuckridge Municipality v Hwali Business Enterprise CC (84119/2014) [2017] ZAGPPHC 363 (30 March 2017)

Bushbuckridge Municipality v Hwali Business Enterprise CC (84119/2014) [2017] ZAGPPHC 363 (30 March 2017)

The court found that the respondent did not rely on a written agreement for the extension of the contract, but rather on an oral extension confirmed by a letter. Since no written agreement existed, the respondent could not comply with the applicant's discovery notice under Rule 35(12) and (14). The applicant's further arguments regarding annexure 'C' were raised only in heads of argument and not in the founding papers, and thus could not be considered. The application to strike out the respondent's particulars of claim was dismissed, and the applicant was ordered to pay costs on an attorney and client scale due to its persistence despite clear evidence that no written agreement existed.

Citation
[2017] ZAGPPHC 363
Parties
Applicant: Bushbuckridge Municipality; Respondent: Hwali Business Enterprise CC
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
30 March 2017
Case Number
84119/2014
Procedural Posture
Civil Application / Application to Strike Out Particulars of Claim
Outcome
Application dismissed with costs on attorney and client scale.
Judges
Tolmay
Legal Topics
Discovery of Documents, Rule 35, Striking Out of Claim, Oral Extension of Contract
Civil Procedure Discovery of Documents Rule 35 Striking Out of Claim Oral Extension of Contract

Case Brief

Summary, issues, holding and outcome

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Parties

Bushbuckridge Municipality

Applicant

Hwali Business Enterprise CC

Respondent

Procedural Posture

Civil Application / Application to Strike Out Particulars of Claim

Legal Issues

  1. 1 Whether the respondent failed to comply with Rule 35(12) and (14) by not producing a written agreement extending the contract.
  2. 2 Whether the respondent's claim should be struck out for failure to discover a written agreement.
  3. 3 Whether the applicant's arguments regarding annexure 'C' can be considered at this stage.

Ratio Decidendi

The court found that the respondent did not rely on a written agreement for the extension of the contract, but rather on an oral extension confirmed by a letter. Since no written agreement existed, the respondent could not comply with the applicant's discovery notice under Rule 35(12) and (14). The applicant's further arguments regarding annexure 'C' were raised only in heads of argument and not in the founding papers, and thus could not be considered. The application to strike out the respondent's particulars of claim was dismissed, and the applicant was ordered to pay costs on an attorney and client scale due to its persistence despite clear evidence that no written agreement existed.

Court Disposition

Application dismissed with costs on attorney and client scale.

Orders

  • The application is dismissed.
  • The applicant is to pay the costs of the application on an attorney and client scale.