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[2015] ZAGPJHC 239
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Mukoma Technologies CC v Metrorail (47482/209) [2015] ZAGPJHC 239 (15 October 2015)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG DIVISION,
JOHANNESBURG
CASE NO: 47482/209
DATE: 15 OCTOBER 2015
MUKOMA TECHNOLOGIES
CC
.....................................................................................
PLAINTIFF
AND
METRORAIL
....................................................................................................................
DEFENDANT
JUDGMENT
THOBANE AJ,
[1] The defendant has applied for
absolution from the instance and that the plaintiff's case be
dismissed. He has further applied
that the plaintiff be ordered to
pay the costs of this action on a punitive scale. The application is
opposed by the plaintiff.
The plaintiff made a significant concession
but I will dealt therewith in some detail below.
[2] The plaintiff issued summons for
payment of the sum of R1 850 564-00 (one million eight hundred and
fifty thousand, five hundred
and sixty four rands) and payment of the
sum of R12 497 394-20, (twelve million four hundred and ninety seven
thousand three hundred
and ninety four rand twenty cents), plus
interest plus costs. The particulars of claim and plea were amended
and eventually when
the matter went on trial the aforementioned
figures had been amended to read R2 871 785-82 (two million eight
hundred seventy one
thousand seven hundred and eighty five rand
eighty two cents) and R24 481 689-08 (twenty four million four
hundred and eighty one
thousand six hundred and eighty nine rand
eight cents) respectively. The relief sought with regard to interest
and costs remained
the same. Further, in the amendment, the plaintiff
sought to remove an invoice which was an annexure P3 to the initial
particulars
of claim. In this regard the plaintiff stated in the Rule
28 Notice as follows;
"By removing Annexure P3 (invoice)
and replacing it with a "revised invoice" n named Annexure
P3."
[3] On or about the 3rd November 2008
the plaintiff and the defendant, duly represented, entered into an
agreement in terms of
which the plaintiff was to render certain
services "as and when" such services were required, to the
defendant. The terms
of the agreement are not in dispute. It is also
not in dispute that the agreement followed a process of tendering in
terms of which
the plaintiff was the successful bidder.
[4] At the commencement of the trial
the parties were in agreement that the issues for determination were
the following;
4.1. The claim for services rendered
and the amount therefor;
4.2. Was there repudiation of the
contract, if found to have been, then in that event;
4.3. The damages suffered by the
plaintiff as a result of the repudiation.
PLAINTIFF'S CASE
[5] The plaintiff called three
witnesses to give evidence. Rogers Magoro testified that he was the
member of the plaintiff and that
he formed the entity. He testified
that he was an IT specialist with relevant qualifications and that he
had been trained in Taiwan
for some 5 months and also in Israel.
Further, that he possesses extra skills in the installation of
security systems. He was au
fait with the installation of CCTV,
alarms, cameras and doing security assessments. He listed inter alia
seven hospitals as projects
for which he had successfully tendered.
Before the tender which is the subject of this dispute, which was won
by him, he had an
on and off relationship with the defendant in terms
of which they would from time to time seek his opinion and service on
matters
relating to IT.
[6] Immediately on winning the tender
which had been advertised in August 2008, he received a letter from
the defendant informing
him of the successful tendering. He then
began doing assessments and filing reports in November and December
of 2008. I pause to
indicate that the contract entered into between
the parties, was to run from the 10th November 2008 to the 9th
November 2009. After
doing assessments he proceeded to work as per
the project plan. He stopped work on the 24th December 2008 and
resumed on the 4th
January 2009. He worked until February 2009 when
he was informed that the defendant had insufficient funds and that
while awaiting
approval of the new budget, they had to stop all work.
He indicated that an email was sent to them so that they could access
a
limited number of sites or premises of the defendant where they
were to do some work.
Around December 2008 he submitted his
invoice for services rendered till then. On submitting his invoice,
he was told that he was
to prepare a cash flow of R750 000-00. He did
not even know what it was but he made inquiries and was advised of
same. When preparing
his invoices, he invoiced for Park Station and
Germiston Station separately. He was paid about R460 000-00 and R135
000-00, respectively.
There were no further payments made thereafter.
The court was referred to page 94 of Bundle D and it was stated that
it was an
invoice for work done but not paid by the defendant. He
testified that in order to gain access to the premises of the
defendant,
he had been provided with access certificates on the basis
of which he was able to gain entry. He had various teams who each had
a copy of the original certificate. Around June 2009 he was informed
that access to all the premises had been revoked. The workers
also
informed him that they had been threatened with with arrest should
they enter the premises of the defendant.
[7] He was told to stop all work in
March 2009. He then requested a meeting which took place on the 11th
May 2009. It was agreed,
so he testified, that the period of the
contract would be extended or will factor in, the duration of the
work stoppage.
It was on the basis of this
understanding that his team went to work on the 12th May 2009. On the
17th June, they were informed
that a certain Mr Mthombeni had taken
over and that he had introduced new systems. At some point he
borrowed them his DVR as they
did not have theirs. There was follow
up correspondence directed to Mr Mthombeni with regard to the abrupt
work stoppage and when
he did not respond, the plaintiff went to
Werksman Attorneys for them to initiate legal proceedings. He led
further evidence as
to how job cards were completed. He indicated
that the client, defendant, always satisfied itself that the work
allegedly done
as per the job card, was in fact done. That is why the
client had to sign the job card. He testifies as to how he drafted
his invoices.
He approached a certain Mhangwana who compiled a report
for purposes of the summons and according to him about R12m was owed
for
damages and R1.8m was in respect of services rendered. He
testified that Mhangwana explained to him how the figures were
arrived
at. He later consulted with PKF Accountants and provided them
the following documents for purposes of compiling a report, project
plans, maintenance plans, job cards and instructing letters. He
testified that all the job cards were in annexure DD and also
explained that it was not possible to forge the job cards as they are
verified by the client.
[8] The second witness to testify is
Mpho Maboa a technician who was at the time of the contract between
the plaintiff and the defendant
in the employ of the plaintiff. He
confirmed that they rendered services to various government
departments and also that they worked
at Johannesburg Park Station
where he was team leader replacing and servicing CCTV. He explained
the process of writing up job
cards and the inspection of the work in
terms of the job cards. He confirmed further that at some stage they
were stopped from
working on the premises of the defendant. On making
enquiries at their offices he was informed that the defendant was out
of budget.
[9] Hermanus Christopher Niewoudt
testified that he is both a registered accountant and a registered
auditor. He was contracted
by the plaintiff to compile a report on
procedures. He was provided with schedules by the plaintiff which he
used to determine
the accuracy of the mathematical calculations in
respect thereof. His findings were that they were mathematically
correct. He testified
that he was not mandated to calculate loss of
income and that same was out of the scope of his report. He was
referred to page
201 of Bundle B and he indicated that what appears
there was not related to his report. During cross examination he
testified that
he was not provided with the contract that the parties
entered into and that it is possible that his opinion would have been
different
had it been provided to him.
[10] The test applicable in considering
an application for absolution from the instance is trite and has been
repeated over time.
The principle is stated by the Appellate Court in
Oosthuizen v Standard General Versekeringsmaatskappy Bpk 1981 (A) at
1035H-36A
as follows:
“If at the end of the plaintiff’s
case there is not sufficient evidence upon which a reasonable man
could find for him
or her, the defendant is entitled to absolution.”
Where there is only one defendant, as in casu, at the close of the
case
for the plaintiff, “it can be fairly inferred that the
Court has heard all the evidence which is available against the
defendant,
any further evidence that would be forthcoming if the case
continued would be likely to operate only to the detriment of the
plaintiff.
That being so it is considered unnecessary in the interest
of justice to allow the case to continue any longer if, the plaintiff
has closed his case, there is no prima facie case against the
defendant”; vide Putter v Provincial Insurance Co Ltd and
Another
1963 (4) SA 771
(WLD) at 772F-G.
[11] In Gordon Lyod Page &
Associates v Rivera & Another
2001 (1) SA 88
(SCA) at p92 par [2]
where the Court said that:
“[2]The test for absolution to be
applied by a trial court at the end of the plaintiff’s case was
formulated in Claude
Neon Lights (SA) Ltd v Daniel
1976 (4) SA 403
(A) at 409G-H in these terms:
‘...(W)hen absolution from the
instance is sought at the close of the plaintiff’s case, the
test to be applied is not
whether the evidence led by the plaintiff
establishes what would finally be required to be established, but
whether there is evidence
upon which a Court, applying its mind
reasonably to such evidence, could or might (not should, nor ought
to) find for the plaintiff
Gascoyne and Hunter 1971 (TPD) 170 at 173;
Ruto Flour Mills (Pty ) Ltd v Adelson (2) 1958 (4) SA307 (T).)’
This implies that a plaintiff has to
make out a prima facie case—in the sense that there is evidence
relating to all the elements
of the claim—to survive absolution
because without such evidence no court could find for the plaintiff
(Marine & Trade
Insurance Co Ltd v Van der Schyff
1972 (1) SA 26
(A) at 37G-38A; Schmidt Bewysreg 4th ed at 91-2).”
[12] The plaintiff's pleaded case is
that there was an agreement and that "the plaintiff fulfilled
its obligation under the
contract" therefore that the defendant
is indebted to the plaintiff in the sum of R2 871 785 -82, inclusive
of Value Added
Tax, in respect of work done in terms of the contract
prior repudiation thereof. I shall deal in detail with the alleged
repudiation
below. To succeed on the above cause of action, the
plaintiff must prove;
12.1. The agreement,
12.2. The services rendered,
12.3. Demand and failure to pay.
[13] The plaintiff relied on job cards
that were completed as and when services were being rendered. At no
point did the plaintiff
refer to the job cards with the view to
establish quantum. I understood the plaintiff's evidence to be that
there was agreement
about the bill of quantities, that as and when
work was done job cards would be prepared and countersigned by the
defendant and
that an invoice is prepared based on both the bill of
quantities and the job cards. In view of the defendants plea to this
cause
of action, namely, that the plaintiff failed to fulfill its
obligations under the contract, failed to repair, maintain, service
and install necessary equipment, invoiced for work not done and that
excessive invoices were lodged, the plaintiff was expected
to lead
proper evidence to show, on a balance of probabilities, that he did
perform in terms of the contract. This the plaintiff
would have done
by leading evidence about the work done in terms of the job cards. He
would have prepared a schedule of all the
job cards, reference them
to the bill of quantities and finally show the tally in the invoice.
It is my view that the plaintiff
failed to do so. He referred the
court to three job cards, even then, only to explain how they were
completed and who had to countersign.
The exercise would have further
involved the exposition of the date on which such services were
rendered, by whom, the nature of
the work done and the details of the
person on the side of the defendant, who confirmed that such work was
done. The court was
referred to an array of documents, none of which
were entered into evidence. The documents to which the court was
referred included
an invoice, Bundle B page 221, purporting to show
that the sum of R2 871 785-82 was due and payable to the plaintiff.
There are 13 items listed on the
invoice. It would not have been difficult to, in each case, show the
job card (countersigned by
the defendant), the bill of quantities (to
confirm the agreed rate) and to cross reference to the relevant line
item in the invoice.
This was not done.
[14] Issues were not separated in this
case. That means at the end of the plaintiffs case not only must the
merits be proven but
also the quantum. The expert witness called was
not of assistance to the plaintiff's case. He only did a mathematical
calculation
of schedules and procedures that were provided to him and
nothing else. The critical question therefore is whether there has
been
evidence tendered on the basis of which quantum in respect of
services rendered can be determined.
The plaintiff bears the onus to prove
not only damages but also the quantum thereof. See Monument Art Co v
Kenston Pharmacy (Pty)
1976 (2) SA (CPD) 111 at 120C-E where Rose
Innes AJ, as he then was, said:
“The onus rest upon plaintiff to
prove not only that its goods have been damaged, but also the amount
of the damages thereby
sustained. I apply with respect the dicta of
Muller A.J.A, as he then was, in Erasmus v Davis case at 19A where he
said:
“It is for the plaintiff to
establish not only that he has suffered damages but also the quantum
thereof. Consequently it
is for the plaintiff to show that the method
which he employs is appropriate to the particular circumstances; in
other words that
the evidence produced by him establishes the quantum
of the damage which he has suffered.”
In circumstances where there is
inadequate or insufficient evidentiary proof to assess loss on the
probabilities, as in this matter,
damages can not be assessed for
lack of proof of quantum. See Monument Art Co v Kenston Pharmacy
(Pty) page 118D-F Rose Innes AJ,
as he then was continued to say:
“....the court does not have to
embark on conjecture in assessing damages where there is no factual
basis in evidence or,
an inadequate factual basis, for an assessment,
and it is not competent to award an arbitrary approximation of
damages to a plaintiff
which has failed to produce available evidence
upon which an assessment of the loss could have been made".
[15] I now turn to consider whether or
not there was repudiation of the contract. The defendant has been
called upon to answer a
case to the effect that there was a
repudiation which was accepted. In this regard the plaintiff pleaded
thus;
"7. On 23 March 2009 the Defendant
repudiated the contract by denying the plaintiff access to its
sites."
8. The Plaintiff accepts the
repudiation and cancels the contract herewith."
Consequently, so did the plaintiff
plead, it has suffered damages and then proceeded to claim R24 481
689-08 presumably, being in
respect of loss of earnings. I interpose
to state that from the reading of the particulars of claim it is not
clear what the cause
of action is. In paragraph 10 of the particulars
of claim the plaintiff simply states;
"10. During the period 23 March
2009 to 9 November 2009 the Plaintiff would have earned a net profit
of R 24 481 689-08."
[16] The requirements that one has to
meet in proving repudiation are trite. In order to succeed the
plaintiff must allege and prove
the following;
16.1. Repudiation of a fundamental term
of the contract or conduct that exhibits a party's deliberate or
unequivocal intention not
to be bound by the contract;
16.2. An election by the innocent party
to terminate, and;
16.3. Communication of the election to
the guilty party.
See Schlinkmann v van der Walt
1947 3
All SA 92
(E),
1947 (2) SA 900
(E) 919. Highveld Properties (Pty) Ltd
v Bailes
1999 4 All SA 461
(A),
1999 (4) SA 1307
(SCA).
In casu, Mr. Magoro testified in chief
that after the 23rd March 2009, he was allowed to proceed and do some
work in a limited number
of stations after he had sought a meeting
with the defendant. During cross examination he was asked to confirm
if it was true that
after March 2009 he had been allowed access to
some stations and he duly confirmed. During argument I engaged
counsel for the plaintiff
about the concession made. He was of the
view that this was a mere technicality and that "it could be
cured by evidence".
I pointed out to him that it was not a mere
technicality and that it could not be cured by evidence as it was
plaintiff's pleaded
case to which the defendant was called to answer.
It is not necessary to deal with the balance of requirements in view
of the admission
that the repudiation could not have taken place on
the 23rd March 2009.
[17] For all the above reasons, I am
persuaded that it would serve no purpose to allow this matter to
advance beyond this stage.
[18] I was asked to consider a punitive
costs order against the plaintiff. I am of the view that it is not
warranted.
[19] In the result I make the following
order;
19.1. Absolution from the instance is
granted;
19.2. The plaintiff is directed to pay
the costs.
SA THOBANE
ACTING JUDGE OF THE HIGH COURT
APPEARANCES
Heard : 9th October 2015
Delivered : 15th October 2015
Counsel for Plaintiff : Adv. Zondi
Counsel for Defendant : Adv.
Mokotedi