Phumi Trading J V Mosallo Zwane Construction v Lekwa Municipality (11741/2012) [2013] ZAGPPHC 30 (6 February 2013)

Phumi Trading J V Mosallo Zwane Construction v Lekwa Municipality (11741/2012) [2013] ZAGPPHC 30 (6 February 2013)

The court found that the plaintiff failed to make out a proper case for provisional sentence. The certificate relied upon referred to an underlying contract, which was not annexed to the summons. The contract was material to the plaintiff's cause of action, and the proceedings could not proceed without consideration of it. The plaintiff was required to annex the contract if it was written, or aver that it was not. The evidence indicated that the contract was likely written and awarded by tender. The defendant was entitled to raise contractual defences, and the additional amount claimed was not shown to be due under the contract, which expressly limited the contract value to R5 400 000,...

Citation
[2013] ZAGPPHC 30
Parties
Plaintiff: Phumi Trading JV Mosallo Zwane Construction; Defendant: Lekwa Municipality
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
6 February 2013
Case Number
11741/2012
Procedural Posture
Provisional Sentence Application / Judgment
Outcome
Application for provisional sentence refused. Costs awarded to the defendant.
Judges
P C Van der Byl
Legal Topics
Provisional Sentence, Contractual Liability, Liquid Documents, Failure to Plead, Tender Award, Costs Order
Civil Procedure Commercial and Corporate Provisional Sentence Contractual Liability Liquid Documents Failure to Plead Tender Award Costs Order

Case Brief

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Parties

Phumi Trading JV Mosallo Zwane Construction

Plaintiff

Lekwa Municipality

Defendant

Procedural Posture

Provisional Sentence Application / Judgment

Legal Issues

  1. 1 Whether the plaintiff is entitled to provisional sentence based on the certificate of final completion.
  2. 2 Whether the underlying contract should have been annexed to the summons.
  3. 3 Whether the additional amount claimed is due and payable under the contract.

Ratio Decidendi

The court found that the plaintiff failed to make out a proper case for provisional sentence. The certificate relied upon referred to an underlying contract, which was not annexed to the summons. The contract was material to the plaintiff's cause of action, and the proceedings could not proceed without consideration of it. The plaintiff was required to annex the contract if it was written, or aver that it was not. The evidence indicated that the contract was likely written and awarded by tender. The defendant was entitled to raise contractual defences, and the additional amount claimed was not shown to be due under the contract, which expressly limited the contract value to R5 400 000,...

Court Disposition

Application for provisional sentence refused. Costs awarded to the defendant.

Orders

  • The application for provisional sentence is refused.
  • The defendant is ordered to file its plea within 20 days from the date of this order.