Elias Motsoaledi Local Munipality v Van Der Hoven

JurisdictionSouth Africa
JudgeMudau J and Makgoba JP
Judgment Date22 May 2020
Docket NumberHCA10/2019
CourtLimpopo Division, Polokwane
Hearing Date15 May 2020
Citation2020 JDR 0881 (LP)

Mudau J:

[1]

This appeal arises from an order of the Magistrate's Court, Groblersdal, which dismissed the appellant's counterclaim, but granted the claim in convention contrary to its factual findings, as well as the order given regarding costs. The appellant seeks an order upholding the appeal against the order of the magistrate, with costs. The respondent confirmed in writing that the appeal is not opposed and will abide this court's decision. After an agreement with counsel, this appeal was disposed of without further oral submissions in open

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Mudau J

court, pursuant to section 19 (a) of the Superior Courts Act [1] . The issues that arose for determination will be best understood against the background that follows. The facts are largely common cause.

[2]

The appellant is a Municipality as contemplated in section 2 of the Local Government Municipal Systems Act. [2] The Municipality was the first defendant in the court a quo whereas Rekhuditse Construction and Cleaning Services CC (Rekhuditse) against whom the claims were later withdrawn, was the second defendant. The respondent, a practicing advocate of the High Court, was the plaintiff. The claims in convention concerned the payment of certain fees by the appellant to the respondent in his capacity as an adjudicator. The respondent was appointed in that capacity on 23 September 2016 facilitated by The Construction Industry Development Board (CIDB) following a dispute between the appellant and Rekhuditse. The dispute between the appellant and Rekhuditse centred on a project of upgrading a road. This project followed a tender process, which was awarded to Rekhuditse.

[3]

It is common cause between the parties that at a preliminary meeting held on 28 October 2016 between the appellant, Rekhuditse and the respondent, the respondent was given a mandate to determine three disputes between the appellant and Rekhuditse. These were: (a) the issue of cancellation of the contract or repudiation thereof, (b) the issue of payments made to subcontractors and (c) the return of performance guarantees. The parties agreed that the disputes were to be adjudicated upon by the respondent based on founding, answering and replying papers submitted by the parties. It is common cause that the appellant paid an amount of R15 000.00 to the respondent as a deposit at the start of the adjudication process.

[4]

Subsequently and during February 2017 (on 8 and 28 February 2017 respectively), after the appellant had submitted its answer to Rekhuditse's "statement of case", the respondent, of his own accord reached an "interim decision", which was followed by an "amended interim decision" on a procedural issue. The respondent directed the appellant to pay his "wasted costs and expenses to date" this being R62 373.80 less any contribution made as per the statement of income and expenditure attached to the interim

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Mudau J

decision. The appellant paid R31 186.90 this being 50% of the amount as directed on 17 March 2017 pursuant to an existing agreement. The appellant contended that the "interim decision" as well as the "amended interim decision" fell outside the scope of the respondent's mandate and jurisdiction in the adjudication of the disputes referred to him upon advice by legal counsel on 27 March 2017. Therefore, the payment was made erroneously. The appellant had pleaded and contended that the appellant made the payment to the respondent under the bona fide but mistaken belief that the payment was due to the respondent.

[5]

Pursuant to the advice by legal counsel, the appellant and Rekhuditse's legal representatives met. Subsequent to the said meeting, the appellant's attorney sent a letter to the respondent on 3 April 2017 with copies to Rekhuditse and its legal representatives. The letter advised the respondent that the appellant would launch an application in the High Court to review and set aside his "Decisions". The respondent was further advised, "to desist in any further handling of the matter until the aforesaid review has been completed". The respondent was also advised that a roundtable meeting was held with the legal representatives of Rekhuditse who indicated unequivocally, that they will abide the appellant's application to the High Court for the review of the matter.

[6]

On 19 of April 2017, the respondent notified the parties that his "Final Decision" was ready for publication. Furthermore, that the final amount of costs was R94 312, 00 or the amount of R47 156, 00 due by each party. Rekhuditse paid its share of the final contribution to the costs as stipulated above. By 19 June 2017, the appellant had not paid the R31 186.90 and R47 156, 00 amounts claimed by the respondent.

[7]

Consequently, the respondent's attorneys sent a letter of demand to the appellant and further advised that if payments were not made on or before the stipulated date, the appellant was given notice in terms of section 3 of the Institution of Legal Proceedings Against Certain Organs of State Act. [3] On or about 20 July 2017 the appellant launched the application at the Gauteng Local Division, Johannesburg to have the respondent's "Interim Decision" and "Amended Interim Decision" set aside. On 12 October 2017, the court per the

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Mudau J

Honourable Madam Justice Modiba J, granted the application on an unopposed basis. The order by Modiba J was not appealed.

[8]

Together with its plea, the appellant delivered a counterclaim pursuant to Rule 20 (1) of the...

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