MEC of Mpumalanga Provincial Government of Public Works and another v Blue Cloud Investment (Pty) Ltd
| Jurisdiction | http://justis.com/jurisdiction/166,South Africa |
| Judge | Kgoele J and Mashile J |
| Judgment Date | 10 July 2023 |
| Citation | 2023 JDR 2522 (MN) |
| Hearing Date | 17 March 2023 |
| Docket Number | A39/2021 |
| Court | Mpumalanga Division (Main Seat) |
Kgoele J and Mashile J:
The appeal stems from an action that was instituted by the respondent in the Reginal Court (trial Court) against the appellants claiming an amount of R 3006 270.71 as arrear rental which was due and payable by the appellant. The trial Court ordered the appellants to pay this amount with interest at the rate of 10% a tempore morae to the date of payment. The appeal is directed at the whole of this order.
The appellants also filed a condonation application for noting the appeal out of time. The respondent opposed both the appeal and the condonation application. I choose to deal with condonation later in the judgment.
The claim arises from a lease agreement (the agreement) that was concluded by the parties on the 14th of July 2017. The commencement date and the original terms of the agreement, including some of which were later amended through an addendum thereto, were common caused between the parties. The only issue that was in dispute was whether the appellant was in default of the agreement. In their plea, the appellants denied that they were in default. It is important to note at the
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onset that at the time when the matter was case managed, both parties indicated to the Court that was case managing the matter that they were ready for trial.
The problem arose at the commencement of the trial as a result of the appellants’ legal representative making an unexpected application for postponement from the bar. The reasons advanced were that the documents that could prove that payments were made were not at hand including the witnesses. This application was refused and the trial Court directed the matter to proceed. As a result, the judgment of the trial Court was based solely on the pleadings before it and the evidence of Mr Wesley Tendaupenyu who testified on behalf of the respondent.
His evidence summarised is that the agreement was for the respondent to provide 9000 square meters of office accommodation, which the respondent did. The initial date of occupation was 1 April 2019, which date was subsequently changed to 1 November 2019 through an addendum. He testified further that the appellants at the time when the action was instituted, occupied only 7620 square meters of the office space provided by the respondent and also, paid for the actual space occupied. He stood firm that the respondent is only claiming for the amount that remained unpaid which is the difference between the space provided as per the agreement and the actual space occupied by the appellants. He lastly indicated that the respondent cannot explain why the appellants are not occupying the entire accommodation space provided, as the appellants are best suited to proffer that explanation.
During cross-examination, he was quizzed about clause 6.2 of the original agreement which provides for a phased-in occupation and further that
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accommodation will be paid for occupied spaces. In his answer to this question, he gave a context of how the events that led to the two agreements being concluded unfolded, which context in the main formed the basis of his answer to the effect that the appellants were to pay for the entire accommodation spaces provided. He indicated that the reason why clause 6.2 was included in the initial agreement was that the construction as agreed initially had to be done in phases, but that that did not mean that unoccupied space would remain in perpetuity. This, according to him, is the reason why an addendum was signed once the building was fully completed. The rental charged for the full occupation only started in November after the addendum was signed, his explanation continued, because the appellants promised during the various meeting held and the correspondence exchanged between the parties which informed the terms of the addendum, that they will occupy the full 9000 square meters provided by the end of October 2019.
The trial Court considered this explanation amongst other things and concluded that as the appellants conceded during the trial that they only paid for the 7620 square meters occupied by them, the respondent’s claim of the difference between the two (unoccupied and occupied spaces) as pleaded in its particulars of claim was justified. It, therefore, found that the respondent successfully proved its claim.
Aggrieved by this order the appellants approached this Court, hence the appeal. The appeal is centered on the misdirection of the trial Court when according to the appellants, it:
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proceeded with the action in the absence of the appellants’ witnesses, despite an application for postponement;
granted a judgment that could not have been competently granted in favour of the respondent because the particulars of claim did not disclose any cause of action based on a breach of contract;
adjudicated the matter when the claim was stillborn because the respondent had not at that time served a notice in terms of Section 3 of the Institution of Legal Proceedings Against Certain Organs of the State Act, 40 of 2004.
For a proper analysis of these grounds, it is important to set out at the onset the legal principles that govern these grounds.
A Court entertaining an application for a postponement exercises a discretion. It is a discretion in the narrow sense. The appellant needs to establish that the Magistrate exercised the power conferred upon him capriciously or upon a wrong principle or did not bring his unbiased judgment to bear on the questions or did not act for substantial reasons [1] .
The Supreme Court of Appeal (SCA) has once more restated the basic tenet of our law that the law constrains a Court to decide only the issues that the parties raised for a decision [2] . It borrowed the following passage from Wallis JA in Fischer and Another v Ramahlele [3] wherein he stated:
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“Turning then to the nature of civil litigation in our adversarial system it is for the parties, either in the pleadings or affidavits, which serve the function of both pleadings and evidence, to set out and define the nature of their dispute and it is for the court to adjudicate upon those issues. That is so even where the dispute involves an issue pertaining to the basic human rights guaranteed by our Constitution, for “it is impermissible for a party to rely on a constitutional complaint that was not pleaded”. There are cases where the parties may expand those issues by the way in which they conduct the proceedings. There may also be instances where the court may mero motu raise a question of law that emerges fully from the evidence and is necessary for the decision of the case. That is subject to the proviso that no prejudice will be caused to any party by its being decided. Beyond that it is for the parties to identify the dispute and for the court to determine that dispute and that dispute alone.” [own Emphasis added]
A Court of Appeal will only interfere and change a trial Court’s finding if the Court‘s conclusion is convinced to be wrong. The probabilities need to favour the appellant for the appellant to succeed with the Appeal. [4]
The object of pleadings is to define issues; and parties will be kept strictly to their pleading where any departure would cause prejudice or prevent full enquiry. But within those limits the court has wide discretion. For pleadings are made for the court, not the court for pleadings. Where a party has every facility to place all the facts before the trial court and the investigation into all the circumstances has been as thorough and as patient as in this instant, there is no justification for interference by an Appellate Tribunal merely because the pleadings of the opponent has not been as explicit as might have been. [5] It is the duty of the court to determine what the real issues between the parties are, and provided no possible prejudice can be caused to either party, to decide the case on the real issues. [6]
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It must be emphasized from the beginning of the analysis of the grounds of appeal that this is an appeal, which stems from an action that proceeded by way of a trial before the trial Court. Simply put, evidence was led in addition to the pleadings that were before the trial Court.
Before us, the appellants relied heavily on clause 6.2 of the original lease agreement to advance an argument that the agreement was that the appellants will only be liable for payment of rental and parking bays for occupied accommodation spaces for a particular period, which shall also be phased in. The submission made in this regard is that the appellants paid for the occupied accommodation space, and cannot be held liable for the unoccupied ones in terms of this clause, therefore they are not in default of payment.
A further bow was added to this argument that, the respondent is instead claiming for unoccupied accommodation spaces as specifically stated in the invoices attached to the particulars of claim and the evidence adduced during the trial, which was not the case that was pleaded by it in the particulars of claim. According to the appellants, the judgment ought not to have been granted in favour of the respondent despite the fact that they failed to file an exception before the trial started. This is so, the argument continued...
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