IN THE HIGH COURT OF SOUTH AFRICA
NORTH WEST DIVISION – MAHIKENG
CASE NO: 1161/17
TEDCOR (Pty) Ltd PLAINTIFF
And
MAHIKENG LOCAL MUNICIPALITY DEFENDANT
Judgment is handed down electronically by distribution to the parties’ legal representatives by e-mail. The date that the judgment is deemed to be handed down is 30 October 2025 at 16h00.
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ORDER
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The plaintiff’s claim is dismissed with costs.
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JUDGMENT
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REDDY J
Introduction
[1] In this opposed contractual dispute the plaintiff, Tedcor (Pty) Ltd (Tedcor) claims payment from the Mahikeng Local Municipality (the Municipality) for an outstanding amount of R 2 312 393.40 founded on the Municipality’s failure to honor three invoices for the months of September, October and November 2015 for domestic waste collection services.
Tedcor’s pleaded case
[2] Until August 2012, Tedcor rendered domestic waste collections services for and on behalf of the Municipality to its various inhabitants entitled to receive such waste collection services in terms of a written contract. This contract was terminated by the effluxion of time in August 2012. Notwithstanding this, Tedcor continued to render the same service mirrored on the terms of the terminated contract which Tedcor characterized as a continued agreement.
[3] The continued agreement had amongst others the following material terms:
(i) Tedcor would cause domestic waste collection services to be performed promptly and regularly.
(ii) The Municipality would affect payment of the agreed, alternatively Tedcor’s usual charges for such domestic collection service in the amount of R 770 797.80 per month within thirty (30) days of the invoice in respect of same being generated.
(iii) Either party was entitled to terminate the continued agreement on a month’s notice.
[4] To this end, Tedcor complied with the terms of the continued agreement.
[5] On 19 October 2015, the Municipality represented by the Acting Municipal Mr. Mokwena addressed a communiqué to Tedcor. The essence of which constituted a termination of Tedcor’s services as of 30 November 2015. The Municipality failed to pay the Tedcor’s fees for September 2015, October 2015 and November 2015 which is computed to the amount of R 2 312 393.40.
[6] On 16 August 2016, at Mahikeng, Tedcor duly represented, and the Municipality properly represented by the Chief Financial Officer, Mr. Terrance Mathe who agreed that the outstanding amount of R 2 312 393.40 would be tendered in full by 30 November 2016. Aside from this undertaking, the Municipality failed and/or refused and/or neglected to effect this payment. Irrespective of further demands for payment the Municipality has not made same.
The Municipality’s plea
[7] In broad strokes the Municipality denied the entire cause of action of Tedcor and put Tedcor to the proof thereof.
Evidence at trial
[8] Verona Mirenia Petersen’s (Petersen), association with Tedcor had a protracted timeline which had its genesis in Tedcor Women in Waste, where Petersen ascended to director in same before becoming a director in several of Tedcor’s subsidiary companies finally taking up the mantle of director in the flagship company Tedcor.
[9] Mr. Matthew Nel, the owner of Shisaka (Shisaka) was successful in securing a tender for a waste collection service with the Department of Environmental Affairs and Tourism, (the DEAAT). Shisaka requested Tedcor to partner with it as Shisaka had shifted focus to administration and Tedcor did waste collection. What was required of this service was the development of community waste contractors and providing training for the collection of rural community waste by them. Shisaka would receive payment from the DEAAT and thereafter compensate Tedcor.
[10] The contract between Shisaka and DEAAT terminated in August 2012. On 1 September 2012 the Municipality officially took over the waste contract for the rural areas. What followed was a unilateral continued agreement between Tedcor and the Municipality on a month- to- month basis.
[11] Petersen describes this arrangement as ‘we had continuation contract or just a letter Mafikeng Local Municipality ...what do you call it, an appointment letter that we would... that we were given up until 2014. Then once that ended we would get month to month extensions from the municipality.’
[12] Petersen continues, we would just get like through the bookkeepers that were doing the books; they would come to me and say we just got another month’s extension from Mafikeng. They would say us emails… letters to say we got extensions for the contract. Then….’
[13] To buttress the existence of a contract between Tedcor and the Municipality Petersen refers to an affidavit resisting summary judgment where the following was deposed to by the municipal manager:
‘It is common cause that since the expiry of the written contract in August 2012 the Plaintiff has been retained to continue delivering domestic waste collection service on a month to month basis without a substantive contract or service level agreement. This agreement was not and is not in line with the supply chain policy and it constitutes irregular expenditure within the contemplation of the MFMA.’
[14] Petersen concludes that notwithstanding demands for payments this has not been forthcoming.
The version of the Municipality
[15] Mr. Shomoleile Bejamin Pelele (Pelele), the legal manager at the Municipality, confirmed the initial agreement entered between the Municipality and DEAAT. This agreement had been signed by Mr. Smith on behalf of the Municipality, which had relevance to the current action which had expired due to the effluxion of time and was not renewed. That being so there was no extant service level agreement between the Municipality and Tedcor.
[16] Pelele opined that Tedcor did not have a cause of action to claim any monies from the Municipality. Discrediting the existence of any extant contract based on historical payments Pelele posited that all payments made at that time in terms of the Municipal Finance Management Act were regarded as irregular unauthorized municipal expenditure, owing to the absence of an agreement between the Municipality and Tedcor as far as the service to be rendered is concerned.
[17] Of importance Pelele averred that in terms of policy Tedcor ought to have been appointed within the supply chain process unless there are exceptional circumstances in terms of Regulation 32 or 36 that can be used by the Municipality. Pelele continued after the expiration of the contract between the Municipality and DEAAT there existed no correspondence extending the contract between the latter two contracting parties. Pelele emphasized that any extension would only relate to the identified contracting parties, namely, the Municipality and DEAAT.
[18] Pelele made it plain that the contents of the termination letter addressed to Tedcor was not in issue. Pelele accepted that on the basis of Shisaka having ‘subcontracted’ Tedcor in the domestic waste collection service it was logical for the Municipality to have retained Tedcor notwithstanding Tedcor not being a party to the original agreement.
Plaintiff’s submissions
[19] Tedcor contends that it is not challenging the termination of the month-to-month arrangement nor is it suing for damages for the termination of the arrangement. Tedcor’s action is predicated on the payment of outstanding invoices issued for work done at the instance of the Municipality before the termination on 30 November 2015.
[20] Evidently, what falls to be adjudicated Tedcor submits is whether there exists any legal impediment averting the Municipality from effecting payment. Tedcor proposes that the court find first that, the month to month arrangement based on which Tedcor provided the service does not constitute a contract or agreement evinced by s116 of the Municipal Finance Management Act 56 of 2003, ( the MFMA). Secondly, that payment to Tedcor does not constitute irregular expenditure. Thirdly, if a finding is made that payments to Tedcor are found to be irregular payments, such a finding does not bar the settlement of Tedcor’s invoices. Fourthly, Tedcor is entitled to payment for services rendered.
Defendant’s submissions
[21] The Municipality placed much store on Mahikeng Local Municipality v Famate Infocast (Pty) Limited 1, ( Famate) contending the factual matrix in this matter is analogous to Famate. To buttress this the Municipality contended that firstly, in Famate the municipality initiated and advertised a tender which Famate responded to and participated in, in the present matter there was no tender process wherein Tedcor participated. Secondly, in Famate, the company was awarded a tender as indicated by the letter of appointment, in the present matter there was no evidence that was led of an appointment letter nor was a tender awarded to Tedcor. Thirdly, in Famate, both parties negotiated the terms of the written service level agreement and amendments were sought to bring the service level agreement and amendments in line with legislation, in the present matter no service level agreement was concluded or negotiated. Fourthly, Famate and Tedcor instituted actions for the breach of contract founded on an invalid unwritten contract.
[22] The Municipality underscores that in both Famate and Tedcor much reliance is placed on having been given tasks to do by the Municipality as evidence of proving a concession or an acknowledgement by the Municipality of a contract being extant. To this end, Tedcor accentuated the historical payments from the Municipality and the wording of the termination as evidence of a contract.
[23] The Municipality asserts that even if Tedcor had approached the court for an order on a default basis, Tedcor would have not secured such an order as there was no valid contract absent compliance with s116 of the MFMA. Importantly, the Municipality claims Tedcor has failed to prove who in the Municipality concluded the contract and if that person had actual or ostensible authority. 2
Legal principles
[24] The terms “burden of proof’ and “onus of proof” refer to the duty that is cast upon a litigant to adduce evidence that is sufficient to persuade a court, at the end of the trial, that the claim or the defence, as the case may should succeed.
[25] In Pillay v Krishna and Another3. it was described as follows:
“The only correct use of the word ‘onus’ is that which I believe to be its true and original sense , namely, the duty which is cast on the particular litigant, in order to be successful, of finally satisfying the court that he is entitled to succeed on his claim, or defence, as the case may be…”.4.
[26] A foundational stone in civil litigation is the pleadings. Undoubtedly a plaintiff will fire the first salvo by the delivery of a case founded on their particulars of claim. What the pleadings generally require is that the material facts which is relied on must be stated. No more. No less. No more because it is a surprisingly short step from the material facts to a file of pleadings that needs a trolley to bring it to court.
[27] Rule 18 (4) of the Uniform Rules of Court, (URC) provides the framework for the drafting of pleadings. Herbstein & Van Winsen: THE CIVIL PRACTICE OF THE SUPREME COURT OF SOUTH AFRICA,5 adopt the definition of the term “material fact” with reference to the case of North West Salt Co Ltd v Electrolytic Alkali Co Ltd6 where the following was expressed:
“If a party relies on a fact and will fail in his claim or defence unless at the trial that fact is proved, that fact will be a ‘material fact’ or ‘factum probandum.’ However, where the fact relied on is such that if the party fails to prove it at the trial he may nevertheless succeed on his claim or defence, that fact will in general not be a material fact, but only evidence of a material fact. Facts of this kind are known as ‘facta probantia’, and should not be pleaded.”
[28] In McKenzie v Farmer’s Co-operative Meat Industries Ltd7 material facts were described in the following terms:
“… every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to judgment of the court. It does not comprise every piece of evidence which is necessary to prove each fact, but every fact which is necessary to be proved.”
[29] In Imprefed (Pty) Ltd v National Transport Commission8 the following was advanced as regards material facts:
“In support of this contention counsel referred to inter alia Shill v Milner 1937 AD 101 at 105 and Marine & Trade Insurance Co Ltd v Van der Schyff 1972(1) SA 26(A) at 44D - 45E. Both these decisions cite an earlier one of this court, Robinson v Randfontein Estates GM Co Ltd 1925 AD 173 in which at 198 it was said: ‘The object of pleading is to define the issues; and parties will be kept strictly to their pleas where any departure would cause prejudice or would prevent full enquiry. But within those limits the Court has a wide discretion. For pleadings are made for the Court, not the Court for pleadings. And where a party has had 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 instance, there is no justification for interference by an appellate tribunal, merely because the pleading of the opponent has not been as explicit as it might have been."
[30] The significance of material facts in pleadings when juxtaposed with Tedcor’s claim lay in the following. First, Tedcor contends that up and until August 2012, it rendered domestic waste collection services in terms of a written contract. It is common cause that Tedcor was not a party to the written contract entered into between Shisaka and the DEAAT. This material fact is patently fabricated.
[31] Secondly, Tedcor asserts that this written contract which it was a party to terminated by the effluxion of time in August 2012. Tedcor pleads another dishonest material fact.
[32] Thirdly, Tedcor continues that from August 2012 to 30 November 2015, Tedcor continued rendering a domestic waste collection service for the Municipality in terms of a written contract which morphed into a continued agreement. It has been established unequivocally that Tedcor did not feature in the written contract between the DEAAT, therefore this material fact is ill-contrived.
[33] Fourthly, Tedcor described what constituted the material terms of this continued agreement which to my reckoning is no more than a case of semantics. It is no other than a contract. The way Tedcor has pleaded and presented its case leaves the determination of the precise contract between it and the Municipality to a process of speculative hypothesis. The use of the term ‘continued agreement’ was none other than legalistic acrobatics to circumvent the essential requirements of any contract. Petersen suggested that this was a request by the Municipality. The evidence of Petersen simply advanced the confusion as regards the specificity of the contract. It appears that Tedcor anchored under a mistaken belief that it was simply entitled to a judgment in its favour without clearly appreciating that the burden of proof lay squarely at its door.
[34] In Jowell v Bramwell-Jones and Others the court noted as follows:
“. . . (T)he plaintiff is required to furnish an outline of its case. This does not mean that the defendant is entitled to a framework like a crossword puzzle in which every gap can be filled by logical deduction. The outline may be asymmetrical and possess rough edges not obvious until actually explored by evidence. Provided the defendant is given a clear idea of the material fact which are necessary to make the cause of action intelligible, the plaintiff will have satisfied the requirements.” 9
[35] One of Tedcor’s various claims is that Tedcor’s cause of action is based on a written agreement. To sway the Court that the Municipality have committed a breach of the material terms of the agreement, the plaintiff is required to allege and prove the existence of the agreement, which talks to the parties’ animus contrahendi. It must further plead the material terms of the agreement. This is more so, in view of the Municipality denial a contract or more pertinently a lawful one.
[36] Rule 18(6) of the URC is edifying in this regard.
It reads:
“A party who in such party’s pleading relies upon a contract shall state whether the contract is written or oral, when, where and by whom it was concluded, and if the contract is in writing a copy thereof or of the part relied on in the pleading shall be annexed to the pleading.”
[37] Petersen’s evidence in isolation is convoluted. Our law sets out a clear distinction between fact probanda and facta probantia. Whilst it is imperative that this distinction be maintained there ought to be a symbiotic relationship between these two legal principles. It follows axiomatically that is impermissible to plead one case and present another. This is precisely what Petersen did. Petersen’s masquerade from inter alia a written contract to a continued agreement, to an appointment letter and to letters that were received by her bookkeeper. Importantly, Petersen was unable to produce any documents with the discovery process which coincides with Tedco’s pleaded case. Moreover, Petersen’s attempts to introduce documents during her evidence was simply disingenuous.
[38] Evidently, Petersen’s evidence failed to explicate critical specifics regarding a cause of action within our law of contract. On a holistic consideration Tedcor failed to satisfy the court that it is entitled to succeed on its claim.
Costs
[39] There is no basis to deviate from the usual rule that costs follow the result.
Order
[40] In the premises, I make the following order.
(i) The plaintiff’s claim is dismissed with costs.
APPEARANCES
For the Plaintiff: Advocate T Mphahlane
Instructed by : C/O Van Rooyen Thlapi Wessels Attorneys
For the Defendant: Advocate C Z Muza
Instructed by: C/O Kgomo Attorneys
Date of hearing: 17 September 2024
Date of judgment: 30 October 2025
1 [2020] ZANWHC 24 (26 March 2020)
2 Provincial Government of the Eastern Cape and Others v Contractprops 25 (Pty) Ltd (414/99) [2001] ZASCA 68
3 1946 AD 946.
4 at 952-3.
5 5th Edition at 565.
6 (1913) 3 KB 422 at 425, CA
7 1922 AD 16 at 22
8 1993 (3) SA 94 (A) at 108D-E, Collen v Rietfontein Engineering Works 1948 (1) SA 413 (A) at 433.
Cited documents 3
Act
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Finance and Money
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Government Notice
1Judgment
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Reported
Leases concluded without Tender Board approval are ultra vires and cannot be validated by estoppel.
Tender Board Act s 4(1) – exclusive statutory power to procure and arrange hiring or letting for Province; contracts concluded without Tender Board referral are ultra vires; estoppel inapplicable to validate transactions prohibited by public law; procurement fairness and anti-patronage objectives.
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