Pinase and Associates CC v Department of Health Free State and others

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: Reinders J
• Judgment Date: 18 August 2023
• Citation: 2023 JDR 3256 (FB)
• Hearing Date: 18 May 2023
• Docket Number: 4112/2020
• Court: Free State Division, Bloemfontein

Reinders J:

2023 JDR 3256 p2

Reinders J

[1]

In October 2020 the applicant (as plaintiff) issued summons against the first and second respondents (as first and second defendants - hereafter only “the defendants”). Reference to the parties will be as in the main action. After the defendants filed its plea, the plaintiff belatedly applied for summary judgment. The defendant opposed the condonation application as well as the application for summary judgment.

[2]

At the commencement of the court proceedings I condoned the late filing of this application and directed the parties to proceed with the merits of the application. It is not the principles applicable to an application for summary judgment that are in dispute between the parties, but rather the application thereof to the facts of this matter. The factual matrix creating the backdrop to the application emanates from a tender awarded to the plaintiff by the defendants in an amount of R 3 269 520.00 for the provision of professional engineering services in respect of minor refurbishments at the provincial Pelonomi Hospital in Bloemfontein, and further averred “affirmations” (the “extended agreement”) concluded between the parties.

[3]

The plaintiff moves for summary judgment against the defendants in the amount of R 73 047 462,60, interest thereon and cost of suit. The defendant resisted the application for summary judgment on several grounds, including a lack of authority by the deponent to depose to the verifying affidavit, prescription, a counterclaim for overpayment, non-conclusion of the alleged extended scope of work, a lack of authority to conclude the latter and non-compliance with statutorily mandated procurement processes.

[4]

The deponent on behalf of the plaintiff in the founding affidavit to the application for summary judgment avers that the defendants have failed to provide a bona fide defence to the plaintiff’s claim. In heads of argument filed on behalf of plaintiff and in oral submission it was submitted that plaintiff’s claim is based “on a liquid document or for a liquidated amount”. I am not convinced that such a submission is correct. The summons contains allegations to the effect that plaintiff cancelled its agreement with the defendants and claims “damages”. Rule 32(1) allows a party to apply to court for summary judgment only based

2023 JDR 3256 p3

Reinders J

on a liquid document, for a liquidated amount in money, for delivery of specified moveable property or for ejectment. The present claim is not based on a liquid document (nor is a liquid document annexed as prescribed by Rule 32(2)(c)), nor is it a claim for delivery of moveable property or ejectment. The plaintiff’s claim is for damages which do not constitute a liquidated amount in money. Summary judgment may only be applied for in respect of a claim falling within the four categories mentioned in Rule 32(1). [1] Summary judgment cannot be applied for in respect of an unliquidated amount.

[5]

But assuming that I am wrong in my views that the claim is not for a liquidated amount, a succinct summary of the test to be applied by a court in deciding whether to grant summary judgment or not, was set out recently by the Supreme Court of Appeal in the unreported unanimous judgment of Cohen NO & Others v D [. ....