Izikhova Security Services CC v Durban University of Technology (D1946/2023) [2023] ZAKZDHC 88 (23 November 2023)

Izikhova Security Services CC v Durban University of Technology (D1946/2023) [2023] ZAKZDHC 88 (23 November 2023)

The court found that the defendant's defence, based on the express terms of the Service Level Agreement and the non-variation clause, raised legitimate and triable issues. The agreement required any changes to the number of guards or locations to be made in writing with proper notice, and the alleged augmented services were requested orally without compliance with these requirements. The proposal to pay for additional manpower was not accepted by the defendant, and no payment was made. The plaintiff did not plead waiver of the written requirements or that the defendant's rights under the SLA could be waived. Accordingly, the defendant's defence could not be dismissed as mala fide or...

Citation
[2023] ZAKZDHC 88
Parties
Plaintiff: Izikhova Security Services CC; Defendant: Durban University of Technology
Court
Kwazulu-Natal High Court, Durban
Jurisdiction
South Africa
Judgment Date
23 November 2023
Case Number
D1946/2023
Procedural Posture
Summary Judgment Application / Application for Summary Judgment; Order on Leave to Defend
Outcome
Plaintiff's application for summary judgment dismissed; defendant granted leave to defend; costs awarded against plaintiff.
Judges
Shapiro AJ
Legal Topics
Service Level Agreement, Summary Judgment, Non Variation Clause, Contract Rectification
Commercial and Corporate Civil Procedure Service Level Agreement Summary Judgment Non Variation Clause Contract Rectification

Case Brief

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Parties

Izikhova Security Services CC

Plaintiff

Durban University of Technology

Defendant

Procedural Posture

Summary Judgment Application / Application for Summary Judgment; Order on Leave to Defend

Legal Issues

  1. 1 Whether the defendant has established a bona fide defence to the plaintiff's claim for payment under a partly oral and partly written agreement.
  2. 2 Whether the alleged provision of augmented security services was valid and binding in the absence of written variation as required by the Service Level Agreement.
  3. 3 Whether summary judgment should be granted in light of the defendant's pleaded defence.

Ratio Decidendi

The court found that the defendant's defence, based on the express terms of the Service Level Agreement and the non-variation clause, raised legitimate and triable issues. The agreement required any changes to the number of guards or locations to be made in writing with proper notice, and the alleged augmented services were requested orally without compliance with these requirements. The proposal to pay for additional manpower was not accepted by the defendant, and no payment was made. The plaintiff did not plead waiver of the written requirements or that the defendant's rights under the SLA could be waived. Accordingly, the defendant's defence could not be dismissed as mala fide or...

Court Disposition

Plaintiff's application for summary judgment dismissed; defendant granted leave to defend; costs awarded against plaintiff.

Orders

  • The plaintiff's application for summary judgment is dismissed with costs.
  • The defendant is given leave to defend the action.