Sethakatshipa Business Enterprise and Others v Mangaung Local Municipality (2508/2016) [2021] ZAFSHC 155 (4 June 2021)

IN THE HIGH COURT OF SOUTH AFRICA,

FREE STATE DIVISION, BLOEMFONTEIN

Reportable: NO

Of Interest to other Judges: NO

Circulate to Magistrates: NO

Case No:2508/2016

In the matter between:

SETHAKATSHIPA BUSINESS ENTERPRISE 1ST PLAINTIFF

LEFCON TRADING

2ND PLAINTIFF

KEHELELWE CONSTRUCTION 3RD PLAINTIFF

E T MOSHOEU TRANSPORT AND TRADING 4TH PLAINTIFF

and

MANGAUNG LOCAL MUNICIPALITY DEFENDANT

HEARD ON: 19 FEBRUARY 2021

JUDGMENT BY: MBHELE, ADJP

DELIVERED ON: 04 JUNE 2021

[1] On 10 March 2015 this court ordered the defendant to place the First to Fourth plaintiff (Plaintiffs) on its roster for provision of waste disposal services. The defendant complied with the order and placed the plaintiffs on the roster only from 1 August 2015 (over 4 months from the date of the order). The First to fourth plaintiff claim R670 991.64, R661 532.88, R537 259. 76, R368 139. 28 respectively against the defendant for damages suffered as a result of the defendant’s delay to place them timeously on the roster.

[2] Defendant resists the plaintiffs’ claims. Plaintiffs called one witness to testify on their behalf. Sekgopotso Lusabe is the owner of first plaintiff and she testified on behalf of all the plaintiffs. She testified to the effect that during 2012 to 2014 her company and 2nd to 4th plaintiffs entered into separate contracts with the Municipality to do door to door waste removal within the jurisdiction of the Municipality. During the subsistence of the contract they were being called daily to collect refuse at least 3 times per week from January to December. Although there was no predetermined schedule there was no week in which they were not called to collect refuse.

[3] Plaintiffs’ contracts came to an end in 2014. Thereafter the Municipality advertised a tender calling for service providers to submit bids for the same work that the plaintiffs had been doing. Plaintiffs’ bids were unsuccessful and they successfully reviewed the Municipality’s decision not to place them on the roster.

[4] Court ordered their reinstatement on 10 March 2015 and they were only reinstated on 1st August 2015. Plaintiffs claim for the revenue lost between April 2015 and 31 July 2015. Lusabe asserts that before their contracts were terminated and after their reinstatement there was not a single week that went by without the defendant calling them to do door to door waste collection. There was always work available for them to do during the subsistence of their respective contracts. She further stated that the successful bidders continued to work in the same manner they did before their contracts came to an end. Lusabe showed that during the subsistence of the contract the first plaintiff would earn in an average of about R892 435. 56 in a period of six months. Its earnings were vacillating between R37 102. 36 and R269 783.20. The first plaintiff’s claim is based on an aggregate amount of R167 747,91 multiplied by 4, being the 4 months between April and August 2015.

[5] After her testimony the plaintiffs closed their case with Mr. Khang, on behalf of plaintiffs submitting that in the interest of time it was not necessary to call other plaintiffs, who were present in court, as their evidence would be the same as the evidence led by Lusabe, the owner of the first plaintiff. Their contracts were terminated on the same day, they approached court jointly and got an order in their favour.

[6] At the end of the plaintiffs’ case Mr. Mazibuko, on behalf of the defendant unsuccessfully applied for an absolution from the instance stating that there is no evidence upon which the court could find in favour of the plaintiffs.

[7] After an unsuccessful application for absolution from the instance, the defendant closed its case without leading any evidence.

[8] The dispute is whether the plaintiffs suffered damages as a result of the defendant’s failure to reinstate them on the roster within a reasonably. In their view they should have been placed back on the roster a month after the court order. Mr. Khang submitted that the testimony of Lusabe showed that the plaintiffs suffered a loss and should be compensated for the loss they suffered.

[9] Mr. Mazibuko argued that the 2nd to 3rd plaintiffs’ claims must be dismissed at the outset as there is no testimony before court to support their respective claims. He submitted that Lusabe has no intimate knowledge of the 2nd to 4th plaintiffs’ affairs and as such she is in no position to testify on their behalf. In his view the discovery affidavits filed by the 2nd to 4th plaintiffs do not constitute evidence sufficient to prove their claim. He submitted, further, that failure to call the 2nd to 4th plaintiffs, who were available in court, is fatal to their respective cases. In his view, Lusabe’s evidence on behalf of 2nd to 4th plaintiffs remains hearsay and inadmissible. He contended that all plaintiffs were contracted to provide emergency door to door collection with no predetermined schedules. He submitted, further, that the plaintiffs failed to prove that there was work for which the defendant had to contract them. Without proof that there was work available plaintiffs cannot claim that they suffered loss.

[10] I now have to consider the admissibility of the evidence tendered by Lusabe on behalf of the 2nd to 4th plaintiff. Section 34 of the Civil Proceedings Evidence Act reads as follows:

"(1) In any civil proceedings where direct oral evidence of a fact would be admissible, any statement made by a person in a document and tending to establish that fact shall on production of the original document be admissible as evidence of that fact, provided-

(a) the person who made the statement either-

(i) had personal knowledge of the matters dealt with in the statement; or

(ii) where the document in question is or forms part of a record purporting to be a continuous record, made the statement (in so far as the matters dealt with therein are not within his personal knowledge) in the performance of a duty to record information supplied to him by a person who had or might reasonably have been supposed to have personal knowledge of those matters; and

(b) the person who made the statement is called as a witness in the proceedings unless he is dead or unfit by reason of his bodily or mental condition to attend as a witness or is outside the Republic, and it is not reasonably practicable to secure his attendance or all reasonable efforts to find him have been made without success.

(2) The person presiding at the proceedings may, if having regard to all the circumstances of the case he is satisfied that undue delay or expense would otherwise be caused, admit such a statement as is referred to in subsection (1) as evidence in those proceedings-

(a) notwithstanding that the person who made the statement is available but is not called as a witness;

(b) notwithstanding that the original document is not produced, if in lieu thereof there is produced a copy of the original document or of the material part thereof proved to be a true copy."

[11] It is not in dispute that all plaintiffs had individual contracts with the defendant to provide emergency door to door waste collection. During the subsistence of their contracts they collected waste every week and received payment for that service. For the period that they were not on the roster they could not be called to collect waste and they received no revenue for the relevant period. They were again consistently called after their reinstatement. It is also common cause that Lusabe was the deponent of the founding affidavit in support of the plaintiffs’ successful Rule 53 application that led to their reinstatement. There is no doubt that she has intimate knowledge of the date of termination of all plaintiffs’ contracts and their reinstatement. This specific information relating to 2nd to 4th plaintiff is within her personal knowledge. Further, during cross examination, Mr. Mazibuko confronted her with information contained in a letter of reinstatement written to the 4th Plaintiff by the defendant on 29 July 2015 which information she demonstrated knowledge of.

[12] The available evidence shows that the defendant continuously depended on the services of independent contractors for waste collection. Had the plaintiffs placed on the roster immediately after the court order they would have had an opportunity to provide the same services. Lusabe succeeded in proving that all plaintiffs would have earned some income had they been reinstated timeously and that they suffered damages as a result of their delayed reinstatement on the roster. She was, further, able to estimate the extent of the loss suffered by the first plaintiff. What she did not demonstrate was deep knowledge of the financial benefit gained by the 2nd to 4th plaintiff which would assist in quantifying their loss. The only information available in this regard is their respective financial records contained in the discovery affidavit.

[13] Musi JP said the following in MEC For Police, Roads And Transport v Bornman Christiaan Hieronymus at par. 24 and 25:

‘[24] Discovery is a pre-trial mechanism to facilitate a fair hearing. It prevents trial­ by-ambush. It ensures that before trial both parties are aware of all the relevant documents. The issues to be taken to the trial are thereby delineated and disputes narrowed so that only the controversial aspects of the trial need to be adjudicated upon. In Air Canada v Secretary of State for Trade (1983) 2 AC 394, as quoted in Santam v Segal 2010 (2) SA 160 the purpose of discovery was described as follows:

"Discovery is one of the few exceptions to the adversarial character of our legal process. It assists parties and the court to discover the truth. By so doing, it not only helps towards a just determination; it also saves costs. A party who discovers timeously a document fatal to his case is assisted as effectively, although less to his liking, as one who discovers the winning card; for he can save himself and others the heavy costs of litigation."

[25] A discovered document is not ipso facto admissible. Even if a party admits the authenticity of a document it does not automatically become admissible. There is a difference between the admissibility of a document and the authenticity thereof. It is not enough to aver that a document has been discovered by the opposition and that therefore the correctness of its contents need not be proved. The legal position was explained thus in Knouwds v Administrateur, Kaap 1981(1) SA 544 (KPA).

"Hofrear 35 (10) skep 'n uitsondering tot die algemene reel dat 'n dokument nie sondermeer van die Balie af ingehandig kan word nie. Die algemene reel is dat 'n dokument alleenlik ingehandig kan word deur 'n persoon soos, byvoorbeeld, die outeur daarvan of 'n persoon wat die auteur se handskrif kan identifiseer. Wanneer 'n dokument deur 'n gedingvoerder se teenstander blootgel word en hy versoek om dit by die verhoor voor te le, hoef die dokument nie deur getuienis geTdentifiseer of as eg bewys te word nie. (Sien Schmidt Die Bewysreg te 234.) 'n Dokument is egter nie normaalweg getuienis van die inhoud daarvan nie. Dit is alleenlik bewys van die feit dat die brief deur die outeur geskryf is. Die inlewering van 'n dokument deur 'n getuie wat in staat is om dit te identifiseer, bewys nie dat wat die auteur daarin geskryf het waar is nie. (Sien Weintraub v Oxford Brickworks (Ply) Ltd 1948 (1) SA 1090 (T) te 1093 en Da Mata v Otto NO 1971 (1) SA 763 (T) te 769.) Wat die betrokke dokument bevat is hoors$ getuienis en daarom ontoelaatbaar tensy dit onder een of ander uitsondering op die hoarse reeI ingebring kan word. (Vgl Smith and Others v Strydom and Others 1953 (2) SA 799 (T) te 805 - 6.) Die reel dat die inhoud van 'n dokument hoors getuienis is, geld oak met betrekking tot 'n dokument wat ingevolge Hofreel 35 (10) ingehandig word. Die inhoud van so 'n dokument is derhalwe ontoelaatbaar as getuienis van wat in die brief staan tensy dit onder een of ander van die uitsonderings op die hoors reel val. At 551G to 552 A’

[14] It is clear from the above authorities that the 2nd to 4th plaintiffs’ reliance on the testimony of Lusabe to prove their damages is misplaced. There is no doubt that the continuous exclusion of the plaintiffs from the roster for a period of 4 months after the court order resulted in their loss of revenue. It is clear that with Lusabe not succeeding in placing evidence quantifying the 2nd to 4th plaintiffs’ loss the aforementioned plaintiffs failed to prove the extent of their loss. Mr. Khang, in his mistaken belief that the evidence of Lusabe was sufficient to prove all the plaintiffs’ damages, elected not to call the 2nd to 4th Plaintiffs. In his argument he was adamant that he saw no need to call the relevant witnesses because he did not want to waste time with witnesses who would be relaying the same story.

[15] Section 34 of the Constitution provides as follows:

‘Everyone has the right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court or, where appropriate, another independent and impartial tribunal or forum.’

[16] The constitution demands fairness in the application of the law. Fairness is what keeps the rule of law alive and it must be observed at all times when disputes are resolved in courts and other independent impartial tribunals. In order to advance the rule of law it is necessary to adhere to the principles of safeguarding the people’s rights and interests as the starting point and ultimate goal. This can be achieved if social fairness and justice serve as guiding principles in the application of the law. In the interest of justice and fairness, I am not inclined to close the door in the faces of 2nd to 4th plaintiffs based on a mistake committed by their legal representative.

There having been no evidence placed before me to prove the 2nd to 4th plaintiffs’ quantum of damages I am unable to make any determination thereon. All plaintiffs have succeeded to prove liability.

[17] I turn to deal with first plaintiff’s damages. Where loss of income has been established the courts have always preferred to make the best of the available evidence to determine reduction in loss of income. In

Hersman v Shapiro & Co 1926 TPD 367 at 379 the court said the following:

'Monetary damage having been suffered, it is necessary for the Court to assess the amount and make the best use it can of the evidence before it. There are cases where the assessment by the Court is very little more than an estimate; but even so, if it is certain that pecuniary damage has been suffered, the Court is bound to award damages.'

[18] In determining loss of earnings I have to consider what the first plaintiff earned in aggregate for a similar period. It is difficult to come with an exact mathematical calculations of the damages suffered. I have to rely on the available evidence and make a finding. The first plaintiff’s earnings were in the average of R38 000 and R269 000 per month for six months, with some months in the region of R150 000. In my view an aggregate loss of R120 000 per month is appropriate in the circumstances.

[19] The first plaintiff’s claim succeeds. There is no reason why costs should not follow the event. With the 2nd to 4th plaintiffs having succeeded partially, I am of the view that the defendant must pay 50% of their costs. I grant the judgment in favour of the plaintiff as follows:

Order

1. Defendant is found liable for the 1st to the 4th plaintiffs’ proven damages

2. Defendant is to pay the first plaintiff an amount of R480 000.

3. Defendant is to pay costs of the 1st plaintiff

4. I make no determination in respect of quantum for the 2nd to 4th plaintiffs’ claims.

5. Defendant to pay 50 % costs of the 2nd to the 4th plaintiff.

N.M. MBHELE, J

On behalf of the plaintiff Adv Khang

Instructed by:

Mphafi Khang

BLOEMFONTEIN

On behalf of the defendant: Adv.Mazibuko

Moroka Attorneys