Rentworks Africa (Pty) Limited v Minister of Executive Committee, Department of Infrastructure Development, Gauteng Provincial Government (12/38522) [2017] ZAGPPHC 795 (3 November 2017)

IN THE HIGH COURT OF SOUTH AFRICA

(GAUTENG DIVISION, PRETORIA)

CASE NO.: 12/38522

NOT REPORTABLE

NOT OF INTEREST TO OTHER JUDGES

REVISED

In the matter between:

RENTWORKS AFRICA (PTY) LIMITED Plaintiff

and

MINISTER OF EXECUTIVE COMMITTEE,

DEPARTMENT OF INFRASTRUCTURE

DEVELOPMENT, GAUTENG PROVINCIAL

GOVERNMENT Defendant

JUDGMENT

Rautenbach AJ

1. This is an exception against the Plaintiffs Declaration. The Defendant raises two exceptions against the Amended Declaration of the Plaintiff.

2. The Plaintiff was the Lessor and the Defendant the Lessee. The Plaintiff filed its Declaration in July 2013 citing the Defendant as before. In its Plea the Defendant allege that the Department of Public Transport, Roads and Works was disestablished in 2009 and that two new departments came into existence namely, the Department of Roads and Transport and the Department of Infrastructure Development. This was done by Proclamation 40 published on 3 July 2009 in Government Gazette 32349. The President of the Republic, acting in terms of Section 7(5)(b) of the Public Service Act 1994 and at the request of the relevant Premier, amended Schedule 2 of the Act by substituting the designations of the Provincial Departments of Gauteng and the Heads thereof in terms of columns 1 and 2 respectively.

3. Subsequently the Plaintiff amended its Declaration to cite the Defendant as The Member of the Executive Committee, Department of Infrastructure Development, Gauteng Provincial Government and claimed payment from it in terms of the Rental Agreement.

4. In a Notice of Amendment dated 29 June 2016 the Plaintiff amended The Department of Public Transport, Roads and Works to that of the current Defendant. No application or substitution was brought. In paragraphs 20 and 21 of its Amended Declaration the Plaintiff pleads in relation to the present Defendant that:

"20.1 The Department of Public Transports, Roads and Works was disestablished in 2009.

20.2 The two new Provincial Departments came into existence upon its disestablishment namely:

20.2.1 The Department of Infrastructure Development; and

20.2.2 The Department of Roads and Transport.

21. Upon the abovementioned disestablishment, the Department of Infrastructure Development assumed all the rights and responsibilities of the Department of Public Transport, Roads and Works in terms of the agreement and schedules referred to above."

5. Insofar as an exception against the wording that the Department of Infrastructure Development assumed all the rights and responsibilities of the Department of Public Transport and Roads it is something in my view that can be addressed by evidence as to how this process took place and whether the new Department attracted liability. Evidence as for instance payments of the rental will have some effect where liability was concerned.

6. The second part of the exception alluded to Clause 24.2 of the Agreement, which reads as follows:

"24.2 You may, subject to our prior written consent which may not be unreasonably withheld, and on such terms and conditions as we may reasonably require assign your rights and obligations hereunder to a third party provided that you shall, notwithstanding such assignment remain at all times liable as principal debtor in terms of the agreement."

7. In my view this is a clause constructed in favour of the Plaintiff lessor in the sense that the lessor is entitled to insist that prior written consent is required before any rights can be assigned to a third party.

8. In my view the existence of this paragraph does not render the pleading excipiable.

9. The Plaintiff is at liberty to waive such consent and the fact that there is no non-variation clause does not assist the Defendant in any manner.

10. I agree with the Plaintiff that the position was brought about by the operation of the Public Service Act 1994 and that the Plaintiff was not required to consent thereto and even if it was, it could not withheld its consent.

11. I further agree that if evidence can be led which can disclose a cause of action or defence alleged in the pleading, that particular

pleading is not excipiable. A pleading is only excipiable if no possible evidence led on the pleadings could disclose the cause of action.[1]

12. In any event a Court has the power to defer consideration of an exception to the trial and will do so where the question raised by the exception seems to be interwoven with the evidence which will be led at the trial.

13. The Defendant relied heavily on the Judgment in Yellow Star Properties 1020 (Pty) Limited v. MEC, Department of Development Planning and Local Government Gauteng 2009 (3) SA 577 (SCA) at 588 B - F. All I have to say about this Judgment is that the cause of action arose out of a situation where a property was sold by one National Department to another and that it appeared that that party was not the owner of the property. The facts are clearly distinguishable from the facts before me.

14. In the circumstances both exceptions should fail.

15. I therefore make the following order:

1. The Defendant's exceptions are dismissed with costs.

J G Rautenbach

Acting Judge of the High Court Gauteng Division

Pretoria

17 October 2017

12/38522

HEARD ON:

FOR THE PLAINTIFF:

INSTRUCTED BY:

FOR THE DEFENDANT:

[1] Bentel Associates International (Pty) Limited and Another v. Bradford Corner (Pty) Limited and Another 2013 [JOL] 30165 (GSJ) at 43.