Court name
High Court
Case name
Government of the Republic of Namibia (Minister of Health and Social Security) v Jackmed Retail enterprises CC
Media neutral citation
[2012] NAHC 213
Judge
Kauta AJ





CASE NO: (T) A217/2004






CASE
NO.:
(I)
2123/2011






IN
THE HIGH COURT OF NAMIBIA






In
the matter between:






THE
GOVERNMENT OF THE REPUBLIC OF NAMIBIA


(MINISTER
OF HEALTH AND SOCIAL SECURITY)

….................................PLAINTIFF






and






JACKMED
RETAIL ENTERPRISES CC

…................................................DEFENDANT






CORAM:
KAUTA, AJ






HEARD
ON: 19TH
JUNE 2012



DELIVERED ON: 30TH
JULY 2012






JUDGEMENT






KAUTA,
AJ:







[1] The
Plaintiff instituted an action against the Defendant seeking payment
of N$2 193 525.64, together with interest from the date of judgment
to date of payment with ancillary relief.







[2] After
entering appearance to defend, the defendant delivered a notice in
terms of Rule 23(1) of the Rules on the basis that ‘the
Plaintiff’s particulars of claim did not contain the necessary
averments to disclose a cause of action’. In satisfaction of
Rule 23(3) of the Rules, the Defendant has put forth grounds upon
which the exception is founded.







[3] Ms
Botes, Counsel for the Defendant advanced two arguments in support of
her contention that the Plaintiff’s amended particulars of
claim does not disclose a cause of action, or alternatively lacks the
necessary averments to sustain the cause of action. The first ground
is that the Plaintiff is seeking two inconsistent remedies: Firstly,
a claim for the detrimental price difference, which she alleges is a
claim for specific performance, secondly, damages as a result of
Defendant’s breach. The last ground advanced by the Defendant
is that the agreement between the parties prohibits Plaintiff from
instituting this action for damages.







[4] The
following facts are common cause. The Plaintiff, through Tender No.
A13-17/2007, invited interested parties to supply and deliver
insecticides, herbicides and fumigants to the Ministry of Health and
Social Services for the period 1 August 2007 to 31 July 2009. On the
8
thFebruary
2008, the Defendant was awarded the tender. As a result, the parties
concluded a written agreement on the 22
nd
May 2008. This agreement was valid for a period of
one year and six months commencing on 8 February 2008 to 31 July
2009, with a further option to extend for one year. From the 23
rd
June 2008 to 23 October 2008, the Plaintiff placed
eight orders for the supply and delivery of the goods in terms of the
agreement between the parties. The Defendant in breach of Clause 2.3,
failed to honour the supply and delivery of the goods as required
within a period of eight weeks upon receipt of the order.
Consequently, on 9 October 2008, the Defendant wrote a letter to the
Plaintiff in which it exhorted the Plaintiff to procure specified
goods from a third party. On the 18
th
November 2008, the Defendant informed the
Plaintiff to procure all goods in terms of the agreement between the
parties from third parties. These two letters clearly meant that the
Defendant was unable to perform in terms of the agreement between the
parties. The Plaintiff procured the goods from Southern Engineering
at a cost of N$4 969 082.84. This sum was N$2 193 525.64 more than
what the Plaintiff would have paid had it procured the goods from the
Defendant in terms of the agreement between the parties. Hence this
action.







[5] Clause 7.1.4 of the
agreement between the parties provides that “should the
contractor fail to furnish any goods or services within the period
stipulated in the Agreement, the contractor shall be liable to
compensate the Ministry for any detrimental price differences or any
other damage or loss suffered by the Ministry.”








[6]. Mr Marcus, Counsel
for Plaintiff submitted that the Plaintiff’s claim is not for
specific performance but for damages because Plaintiff does not seek
to enforce the contract but merely bases its action on a remedy
afforded it by Clause 7.1.4 above. He further contends that even if
the Defendant was correct, that the Particulars of Claim contained
inconsistent remedies. The Defendant cannot in law raise the issue
raised in this matter by way of an exception, but should have rather
pleaded or raised the exception on the basis that the pleadings are
vague and embarrassing because that would afford the Plaintiff an
opportunity to remedy the defect. Lastly, Defendant submitted that
what the contract between the parties prevents is delictual damages
inter parties and not damages arising from a contractual breach,
which is governed by Clause 7.1.4.








[7] It is trite law that
for purpose of deciding an exception, the Court takes the facts
alleged in the pleadings as correct. And an exception is generally
not the appropriate procedure to settle questions of interpretations
because, in cases of doubt, evidence may be admissible at the trial
stage relating to surrounding circumstances which evidence may clear
up the difficulties. In any event an exception is only open to the
excipient when the defect contented for appears ex facie the
pleadings. See: Marney v Watson and Another 1978 (4) SA 140
(C) at 144 F-G; Murray & Roberts Construction Limited v FINAT
Properties (Pty) Ltd
1991 (1) SA 508 (A); Edwards v Woodnut NO
1968 (4) SA 184 (R) at 186 E-H; and Viljoen v Federated Trust Ltd
1971 (1) SA 750 (O) at 754 F-G








[8] In my view, the
Plaintiff’s averments in their amended particulars of claim and
the Defendant’s objection thereto concern and are based on what
each party considers to be the correct legal interpretations of
Clauses 7.1.4 and 7.1.3 respectively. On the authorities in paragraph
7 above, issues of interpretations cannot be settled by way of an
exception. If I accept as I must, on the pleadings, the facts set out
in paragraph 4 above, that the Defendant informed Plaintiff in
writing to order the goods from all the goods from a third party on
the 18th November 2008, it will mean that the Defendant
repudiated the agreement between the parties. On the authority cited
by Ms Botes that where a contract is cancelled, certain rights which
accrued prior to the cancellation survive the cancellation and remain
enforceable, tend to support the Plaintiff’s claim for damages
arising ex contractu. I am fortified in this view by the submission
of Ms Botes that a notice that a contract has been cancelled is
inferred by service of a summons. See: Bowring Barclays &
Genote (Edms) Bpk v De Kock
1991 (1) SA 145 (SWA) at 149J-150A;
The Principles of the Law of Contract, 6th Ed at
729-730; Contract 10thEd at 467.








[9] If issued and served,
summons constitutes cancellation by necessary implication, excludes
specific performance. For the above reasons and conclusions, I find
that the Defendant has not made up a case for me to uphold the
exception, based on the grounds raised. The exception therefore
fails, and I consequently make the following order:



The Defendant’s
exception is dismissed with costs, such costs to include costs
consequent upon the employment of one instructing Counsel and one
instructed Counsel.













KAUTA AJ























COUNSEL ON BEHALF OF THE
PLAINTIFF: MR MARCUS



INSTRUCTED BY: GOVERNMENT
ATTORNEY













ON BEHALF OF THE
DEFENDANT: ADVOCATE SCHNEIDER








INSTRUCTED BY: FRANCOIS
ERASMUS & PARTNERS