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[2017] ZAGPJHC 307
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Tarspray CC v Ashalt Services CC (A5061/2016) [2017] ZAGPJHC 307 (8 November 2017)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE NUMBER: A 5061/2016
In
the appeal of:
TARSPRAY
CC
Appellant
and
ASPHALT
SERVICES
CC
Respondent
Coram:
MAVUNDLA
et WEPENER et TWALA JJJ
Heard:
20
October 2017
Delivered:
8
November
2017
Summary:
Agreement
- breach of agreement acceptance by innocent party results in the
agreement coming to an end. The innocent party cannot
base claims on
the terms of contract (unless such right was specifically contracted
for) for amounts in terms of the contract after
the date of ending
the contract but may, apart from accrued claims as at that date,
claim damages from the party who breached the
agreement.
JUDGMENT
WEPENER
J:
[1]
This is an appeal against a judgment of Makgoka J, with leave of the
learned judge. The matter concerns a claim for payment
for amounts
pursuant to a written agreement in terms whereof the respondent
undertook to do road works at rates contained in the
written
agreement. The agreement is set out in a written quote and an
exchange of emails. Tarfix CC (Tarfix) concluded a contract
to reseal
a road from Boschhoek to Lyndley’s Poort Dam, Northwest
Province. Tarfix could do the earthworks and layer works
but was not
equipped to do the seal work, which it contracted out. The learned
judge found for the respondent and ordered the appellant
to pay the
difference between the amounts found due and an amount set off by the
appellant, to the respondent. The respondent being
dissatisfied with
the amount awarded by the court a quo launched a counter-appeal for
additional amounts to be paid to it. The
appellant, the respondent
below made, as its main attack against the judgment of Makgoka J, the
assertion that it was not the contracting
party with the respondent
but that the respondent entered into a contract with Tarfix. It
secondly, disputed the manner of calculation
of the amount awarded to
the respondent.
Contracting
parties
[2]
All the witnesses who testified before the court a quo asserted that
the agreement was between the appellant and the respondent.
These
witnesses included employees of both the appellant, the respondent
and Tarfix. I firstly deal with the evidence of each of
the witnesses
who, the court a quo found supported the conclusion that the
agreement was indeed concluded between the respondent
and the
appellant.
[3]
I can hardly do better than Makgoka J who analysed the evidence and
found that the agreement was indeed between the respondent
and the
appellant. I consequently quote his findings regarding the evidence
of the witnesses, with which findings I fully agree,
by liberally
referring to the learned judge’s judgment. Five witnesses who
testified on behalf of the respondent, three of
whom, asserted that
the agreement was entered into by the appellant and the respondent.
The appellant called no witnesses resulting
in the evidence being
largely common cause. The remaining two witnesses, in the main,
testified about the quantum of the claim.
‘
Marx
[31]
Marx was the contract manager of Tarfix for the Boschhoek contract
during the
relevant period. He testified that he was the contracts
manager on the Boschhoek contract. He testified about the prior
business
relationship between Tarfix and the defendant and Tarfix’s
indebtedness to the defendant, which led to the cession referred
to
in above. He did not know of the plaintiff until it was brought into
the negotiations by the defendant.
[32]
Since the plaintiff had been brought into the picture by the
defendant to do
the latter’s work, he had to get the prices for
the plaintiff as to what it intended charging the defendant, and then
work
out two mark-ups - one market-related for the defendant,
and another one for Tarfix to settle its debt with the defendant.
He
had Dryburgh’s permission to discuss technical issues directly
with the plaintiff – normally one would work through
a
sub-contractor (in this case the defendant). He further requested the
plaintiff to furnish him with its company profile, as it
had to be
approved as a further sub-contractor by Tarfix’s engineer.
[33]
He explained that the initial agreement with the provincial
government on a
rate of R22 m, which was meant to be mark-up in order
to settle Tarfix’s previous debt to the defendant. This,
according
to him, confirmed that the agreement Tarfix had, was with
the defendant, and not with the plaintiff. Had the latter been the
case,
the plaintiff would have received only R16 053 m
2
.
The difference between the two amounts was a mark-up to make-up for
the settlement of the money owed by Tarfix to the defendant’s
previous debt.’
Marx
further testified that he and MacKinnon on behalf of Tarfix agreed
with Mr Dryburgh on behalf of the respondent, that Tarfix
would use
the services of the appellant on the Boschhoek contract. In that way,
a mark-up could be introduced ‘to work off’
the
previously incurred debt of Tarfix to the appellant. Marx also
furnished the measured quantities to the appellant for it to
compile
and furnish its invoice to Tarfix.
‘
Dryburgh
[34]
Dryburgh was a member of the defendant, with 50% shares, and the
managing member.
He was directly and actively involved with the
negotiations, first with Tarfix and later with the plaintiff. He
confirmed his involvement
in the negotiations referred to above. He
was very clear that the defendant would not go on site before a
cession was sighed. He
testified that as the agreement between Tarfix
and the defendant was subject to the cession being approved by the
provincial government,
only then would the defendant undertake a
responsibility to do the surfacing job.
[35]
As to the involvement of the plaintiff in the contract, he testified
that he
had known the plaintiff’s Collin Larrett and their
respective firms had undertaking a joint venture in the past. As the
plaintiff
had the skill to do the type of work required
in the Boschhoek contract, the defendant engaged the plaintiff as a
sub-contractor.
He has also introduced the plaintiff to Tarfix. With
regard to the contract, the arrangement was that the plaintiff would
deal
directly with Tarfix, purely to facilitate ease of
communication. MacKinnon and Page-Wood were the contacts persons for
Tarfix
and the plaintiff, respectively.
[36]
He explained that the reason the quotation bill of quantities
referred to earlier,
was addressed to Tarfix is that he had allowed
for direct dealing between the plaintiff and Tarfix. He categorically
denied that
the contract was between the plaintiff and Tarfix, but
between the defendant and plaintiff.
[37]
Regarding the cession, he testified that he and Larrett had agreed
that the
cession should be a three-way cession involving Tarfix, the
defendant and the plaintiff, so that the money would filter down in
such a way that each of the three firms would be able to directly
invoice the provincial government. Once a Tarfix tax invoice
had been
presented, the defendant would get paid the amount of the invoice,
which would be deducted from Tarfix’s account
with the
provincial government. The defendant would in turn grant a cession of
the plaintiff that once the defendant had received
the funds the
plaintiff would be assured of payment. A cession along these lines
was drafted but never signed.
[38]
According to Dryburgh, after the rates had been agreed upon with
Larrett on
27 August 2009, the plaintiff became entitled to charge
the defendant the fees and the rates set out in the revised
quotation.
According to him as of 27 August 2009, a contract was
concluded between the defendant and the plaintiff. In turn the
defendant
contracted with Tarfix.
[39]
He is the author of a letter referred informing the contractors of
the failure
of the provincial government to pay. On 11 October 2009
he stopped the work. The same day he travelled to the site and
instructed
the defendant’s supervisor to stop work as a result
of the provincial government’s failure to pay. However, that
instruction
did not affect the plaintiff’s obligation to remain
on site.
[40]
Dryburgh testified that he did not dispute the premise on which
Larrett held
the defendant liable for payment of its account as
stated in Larrett’s letter of 123 January 2010, namely, that
contractually,
the plaintiff had to look to the defendant for
payment.
[41]
Dryburgh testified that the suggestion in the attorney’s letter
that
the plaintiff’s claim against the defendant was premature
was simply a delaying tactic – “to buy time”.
As
further demonstration that the defendant understood it to have an
obligation to pay the plaintiff, he met Larrett and his wife
towards
the end of 2009 and assured him that the defendant would endeavour to
pay the plaintiff. That decision to pay was made
known to the
management of the defendant.
[42]
During cross-examination, Dryburgh conceded that the cession was
crucial to
the transaction and that without it, the contract would
have been detrimental to the defendant as it would have incurred more
liability.
[43]
With regard to the invoice of 30 September 2009 issued to Tarfix, but
hew plaintiff,
Dryburgh explained that the purpose was to advise the
Tarfix as to the quantities that had been produced so that Tarfix
could put
their rates against those quantities, after which Tarfix
would inform the defendant how to raise an invoice against those
rates.
[44]
Dryburgh also conceded during cross-examination that the amounts
claimed in
the liquidation application did not include what was then
owed to the plaintiff by the defendant in the amount of R3,7 m in
respect
of the surfacing done by the plaintiff on the contract. His
explanation was that during July 2010 he had a nervous breakdown,
followed
by a serious accident, and shortly thereafter, he signed
over the commercial running of the defendant to Mr Richard Lavalle,
after
which he became an employee of the defendant after selling his
shares in August 2012.
[45]
As a result, at the date of the liquidation application he had
relinquished
control of the defendant. With reflection, he made a
mistake by signing the affidavit which did not include the
plaintiff’s
claim. In fact, he testified, when the defendant
received the R3,6 m in August 2011 from Tarfix, his view that an
arrangement should
be made with the plaintiff to start Paying what
was due to them (approximately R3,7 m). He suggested that half of the
money be
paid, and the rest on an arrangement basis. His suggestion
was rejected by Mr Richard Lavalle, who was running the affairs of
the
defendant at that stage.
Larrett
[46]
Larrett is the general manager of the Independent Group of companies,
of which
the plaintiff is one. He and Dryburgh had a long business
relationship, and had been family friends since 1980. As a result,
mutual
trust had developed between them, such that most of their work
commitments were done either telephonically or verbally, based purely
on trust and previous experiences. He testified also that the
initial, failed negotiations with MacKinnon of Tarfix concerning
the
plaintiff’s possible involvement in the contract, as well as
Dryburgh’s approaching him shortly thereafter, with
a
possibility from them to do work on the Boschhoek contract. The
correspondence exchanged between then in this regard, has fully
referred to earlier.
[47]
Regarding the letter written by him on 25 February 2009, he explained
that
it reflected the rates at which the plaintiff was prepared to do
the work, communicated to both Tarfix and Tarspray, for them to
be
satisfied that the contract had enough value for Tarfix to settle its
account with the defendant an or the plaintiff to be assured
of
payment. Eventually the contractual agreement between the three
parties was that Tarfix would place an order with the defendant,
which, in turn, would place an order with the plaintiff. The
understanding was therefore that the plaintiff was a sub-contractor
of the defendant. Pursuant to this understanding, MacKinnon, on 27
August 2009 (p73, C1) e-mailed him to confirm an order with
the
defendant, and that the defendant should in turn place an order with
the plaintiff.
[48]
Larrett also testified about the meeting he held with Dryburgh on 27
August
2009 at their offices in East London. Dryburgh travelled
there, and met with the management of the plaintiff, including
Larrett
himself. It was during that meeting that the prices were
agreed on. In particular, Dryburgh, on behalf of the defendant,
agreed
to all prices and terms. A letter confirming the prices was
typed immediately after the meeting. A copy thereof was handed to
Dryburgh
personally before he left. The letter was later that day
e-mailed to both Tarfix and the defendant. He made reference in that
letter
to the cession, and requested a copy thereof, to forward to
its attorneys for advice.
[49]
He conceded that no formal order was received from the defendant, but
explained
that there was a verbal commitment between him and Dryburgh
confirming that the plaintiff should go ahead with the work. Although
the tripartite cession involving Tarfix, the defendant and the
plaintiff was important, in the absence of the cession, the plaintiff
would look to the defendant for the payment.
[50]
Larrett also testified about his efforts to obtain payment from the
provincial
government involving interaction with Dryburgh and the
officials of the provincial government. On 9 April 2010 he received
an email
from Dan Senekal of the defendant, in which Senekal
suggested that in order to effectively include the plaintiff’s
claim
when the defendant’s claim against Tarfix, the plaintiff
should cede its right to the defendant, so that the latter would
act
on behalf of the plaintiff to secure payment. It is not clear what
became of this proposal.
[51]
On 31 May 2010 he wrote an email to Dryburgh, alluding to the
possibility that
Tarfix had received payment from the provincial
government and that such payment had been intercepted by SARS for
Tarfix’s
tax liabilities. In the penultimate paragraph of the
email, he mentioned an earlier visit to Dryburgh, who, on behalf of
the defendant,
had made an undertaking to him that the defendant
would, with effect from May 2010, start making monthly payments to
reduce the
defendant’s liability to the plaintiff.
[52]
On 19 July 2010 he was copied an email from Senekal (defendant) to
the plaintiff’s
accounts manager, in which, among others, the
defendant committed itself to collect the amounts owing to it by
Tarfix and pay the
plaintiff “as and when” the defendant
is paid. Larrett testified that he did not agree with Senekal’s
supposition
that the payment to the plaintiff depended on the
defendant receiving payment from Tarfix. He therefore replied to
Senekal’s
email mentioned above, and among others, joined issue
with Senekal’s assertions of the defendant’s conditional
liability
to the plaintiff. He repeated the plaintiff’s stance
that it looked to the defendant for payment.’
Larrett
further testified about the reasons why the respondent would not do
business with Tarfix. Firstly, Tarfix had a bad reputation
in the
market place and secondly, the conduct of MacKinnon was such that the
respondent refused to deal with him and Tarfix.
‘
Page-Wood
[57]
He also testified about the tax invoice for R1 118 262.73
dated 30
September 2009 issued by the plaintiff to Tarfix, referred
to earlier, and the credit note on 16 September 2009, also in the
name
of Tarfix. He explained that one of the plaintiff’s
account clerks erroneously issued the tax invoice to Tarfix instead
of
the defendant, hence the credit note. On realising this error, the
same person generated a credit note dated 16 September 2009.
He
attributed to mere human error, the fact that the date of the credit
note precedes the tax invoice it purportedly cancelled
out.
[4]
The direct evidence of the witnesses was that the appellant and the
respondent entered into the agreement, and not the respondent
and
Tarfix. There is no reason not to accept that evidence.
[5]
There are a number of objective factors which support the direct
evidence of the witnesses. Firstly, the two quotations sent
by the
respondent on 25 August 2009 and 27 August 2009 are addressed to the
appellant, Tarfix being copied therewith. In an exchange
of email
messages the appellant’s representative, Mr MacKinnon,
confirmed the ‘order with Tarspray’ and confirmed
that
Tarspray ‘must place this order’ with the respondent.
After acceptance of the quotation, MacKinnon pertinently
said:
‘
as
the order is between Tarspray and’, the respondent.
There
is consequently no scope for the contention that the agreement was
not between appellant and respondent.
[6]
Secondly, the parties intended concluding a three-way cession. The
respondent requested its attorney to settle a cession agreement
to
obtain security for payment. The attorney, after settling it,
referred to the fact that the details of the sub-contract with
Tarspray should be added to the document. These instructions emanated
from the respondent’s Mr Larrett (Larrett) indicating
that
there can be no doubt that Larrett believed that the respondent was
contracting with the appellant. In addition, the rationale
for the
cession between the appellant and Tarfix indicates that Tarfix
contracted with the appellant and not with the respondent.
It was
common cause that the first cession document was so drafted to enable
Tarfix to settle its existing debt to the appellant.
[7]
Thirdly, when it became apparent that Tarfix would not be paid in
respect of the contract which it had with the Northwest Province,
each party informed its contracting party: Tarfix advised the
appellant to stop work and the appellant, in turn, advised the
respondent
to stop work. The evidence of Dryburgh that he issued the
instruction to stop work to the appellant’s contracting party,
the respondent, remains uncontested.
[8]
Fourthly, the manner in which the appellant made the invoice for the
work performed by the respondent supports the respondent’s
version. Believing in the existence of a valid cession, Tarfix
instructed the appellant to raise the invoice against the Northwest
Province. This was done as there was no contractual relationship
between the respondent and Tarfix. If Tarfix had contracted with
the
respondent, commercial sense would require that it would request the
respondent to raise the invoice and not the appellant.
[9]
Fifthly, the respondent issued three pro-forma invoices to the
appellant. Although the appellant relied heavily on a tax invoice
raised in the name of Tarfix, it omits the reasonable and plausible
explanation given by Page-Wood that this was an error and that
a
credit note was immediately issued to rectify the error.
[10]
Sixthly, the attempts to obtain payment were consistently directed at
the appellant.
[11]
Seventhly, counsel for the respondent submitted that the appellant
admitted its indebtedness to the respondent on more than
one
occasion. Counsel’s submission has much force. In response to a
demand for payment, the appellant did not deny a liability
to the
respondent but indeed stated that the appellant ‘does admit
being indebted to your client for the amount claimed,
but any such
claim at this juncture is entirely premature’. The reason for
the latter statement was explained by Dryburgh.
The appellant first
had to be paid by Tarfix before it could pay the respondent and,
because this did not form part of the agreement,
the tactic to allege
a premature claim was followed to buy time. In addition, Dryburgh
admitted to the respondent’s indebtedness
and undertook to make
payment to the respondent from 31 May 2010. Also, on 19 July 2010, Mr
Senekal, on behalf of the appellant,
who wrote to Tarfix, said:
‘
Tarspray
has committed itself that it will pursue all possible means and
avenues to collect the amounts owing to it by Tarfix (Pty)
Ltd and
will pay Asphalt Services as and when we (Tarspray) are paid.’
These
admissions stand in stark contrast with the appellant’s case in
the court below and on appeal.
[12]
Eighthly, appellant applied for the liquidation of Tarfix. I do not
deal with all the submissions and passages relied upon
by counsel for
the respondent. One such reference, in my view, would suffice. The
appellant filed affidavits in the application
to liquidate Tarfix. In
the affidavit Mr MacKinnon stated that Tarfix ‘. . . has
represented and undertaken to the applicant
(Tarspray) that once the
respondent (Tarfix) was paid by the provincial department, it in turn
would pay the applicant (Tarspray).’
From this it is clear that
appellant contended that Tarfix was indebted to it for the amount of
the invoice for work done by the
respondent.
[13]
Ninthly, the appellant pleaded that there was indeed an agreement
entered into between the respondent and the appellant on
27 August
2007 in East London where the parties were represented by Larrett and
Dryburgh. This part of the plea supports the respondent’s
case.
It then alleged in the plea:
‘
3.3.42
even if a valid and binding cession was not concluded, that should
Tarfix receive moneys due under the
Boschhoek contract, it might pay
to the defendant the amounts that would otherwise be due to the
defendant had a cession been validly
concluded.’
3.3.5
There was accordingly a tacit, alternatively there was express
agreement, in terms of which should
the defendant receive payment of
the sum due in respect of the Boschhoek contract from the client or
from Tarfix, it would pay
to the plaintiff such amount due to it in
respect of the contract with Tarfix.’
There
is no basis in the evidence that this limited agreement was indeed
concluded, but the admission that an agreement was concluded
is
further support for the finding that the agreement was indeed
concluded by the appellant and the respondent.
[14]
It was thus shown on a weighty balance of probabilities that the
agreement was entered into between the respondent and the
appellant.
Quantum
[15]
Before I deal with the question of any amount that may be owing by
the appellant to the respondent and
vice versa
pursuant to the
agreement, it is necessary to, shortly, have regard to the nature of
the claim and the pleadings. The respondent
claimed payment pursuant
to the written agreement. There were two other claims: one referred
to as de-establishment costs and the
other, a claim for loss of
profit. These claims were abandoned at the outset of the hearing and
they need no further discussion.
Of importance, however, remained the
respondent’s case on the pleadings that:
‘
In
breach of the agreement defendant instructed plaintiff on 11/10/2009
to stop work due to the fact that defendant was unable to
pay
plaintiff as a result of disputes defendant has with its contractor.
Defendant accepted the breach.’
The
allegation that ‘defendant’ accepted the breach is
clearly erroneous. The respondent’s allegation was that
the
appellant breached the agreement, the acceptance whereof could only
have been exercised by the respondent as an appellant could
not
accept its own breach to put an end to an agreement. The pleading
properly construed alleges that the respondent accepted the
appellant’s breach, which occurred on 11 October 2009. The
matter was clarified in further particulars where it is said,
unambiguously, that the respondent accepted the appellant’s
breach on 11 October 2009. From that day the contract was at
an
end
[1]
, and unless the written
agreement provided for the calculation of amounts payable or claims
in such an event, the respondent’s
entitlement to pursue rights
under or in terms of the contract had come to an end. There are no
such stipulations in the written
agreement and none were relied upon
or argued to exist. Thus, any claim after 11 October 2009 would have
had to find a basis in
damages but certainly not in the terms of the
contract.
[2]
In so far as the
respondent sought payment or the enforcement of accrued rights there
is no difficulty.
[3]
[16]
The importance hereof lies therein that some of the amounts sought by
the respondent in the counter-appeal, as it was sought
in the court
below, were sought in terms of the agreement. The respondent sought
payment for the work completed (an accrued amount),
standing time
(both an accrued amount and an amount not yet accrued) as well as
pre-coated stone delivered to site but not used.
It is the latter
amount which the respondent can recover by way of damages as it is
not covered by the terms of the contract nor
was it an accrued claim.
The respondent failed to institute such a claim after the contract
came to an end and it is not entitled
to these damages after
acceptance of the breach, save by way of a claim for damages.
[17]
The court
a quo
nevertheless, included an amount of
R251 497.08 for pre-coated stone delivered to site. I am of the
view that this amount
was erroneously included in the amount awarded
to the respondent as it falls outside a claim for accrued amounts but
should have
been claimed as damages. The amount awarded against the
appellant should consequently be reduced by the amount so awarded for
the
pre-coated stone.
[18]
As far as the completed work is concerned, Marx testified that a
total of 111 000 m
2
had been sealed by the
respondent. Marx however, did not meticulously measure the
quantities; he testified that his measurements
led to interim
certificates and that inaccuracies would be rectified when the final
certificate was issued. He stated that when
the interim certificates
are raised he normally under-claims slightly in order to avoid
disputes. Marx’s calculations also
differed to the records kept
by Marais who was the respondent’s manager on site. Marais kept
a diary of measurements and
he measured with a measuring wheel. The
evidence was not disturbed in cross-examination and the measurement
of 116 325 m
2
of work performed can be accepted as
accurate. In the circumstances, the court a quo should have awarded
the respondent the agreed
rate times 116 325 m
2
completed work at the time when the contract came to an end. That
amount would be R1 867 365.22 – an amount of
R85 482.22 more than the court allowed based on the quantity of
111 000 m
2
utilised by the court and as testified to
by Marx.
[19]
The appellant, contrary to the terms of the agreement, argued that
certain variations to the rate of R16.053 should be applied.
But the
appellant did not plead such a case nor was evidence tendered by the
appellant in support thereof. It would be difficult
if not impossible
to apply a variation rate without evidence having been put forward by
the appellant to firmly establish such
a case, even though not
pleaded.
[20]
The claim for standing time has its origin in the contract. The court
a quo disallowed standing time from 12 October 2009.
I have set out
above why the respondent is not entitled to claims
ex contractu
after 12 October 2009. It was argued, as Marx testified, that the
respondent was compelled to remain on site in order to prevent
a
breach of contract. But this does not assist the respondent. It
accepted the breach by the appellant on 11 October 2009 and the
contract was accordingly at an end on that date. The respondent can
therefore not claim standing time beyond the end of the contract.
The
evidence regarding the respondent’s continued presence on site
due to discussions between the witnesses does not take
the matter
further. The contract was at an end and no new contract after 11
October 2009 for payment for standing time was relied
upon. The
standing time allowed by the court a quo was consequently accurate
and an amount of R165 000 was awarded up to and
including the
date of the acceptance of the breach, 11 October 2009. The appellant
argued that the respondent should not be allowed
an award for
standing time even in the amount that was awarded, especially for
Sunday standing time. There is no merit in the argument.
The direct
evidence was that the respondent did not stand down its operations on
Sundays and it, as a matter of principle, continued
work on these
days in order to promote the expedient finalisation of the contract.
There is nothing to gainsay this evidence and
the attack on this
award must fail.
[21]
During argument the appellant’s counsel referred to a credit
which appeared on the accounts of the respondent and which
was not
explained. But it was also not explained in evidence and there in
nothing that this court can or should do about it.
[22]
Prior to the trial the respondent objected to the large volume of
documents which the appellant insisted upon being included
in the
bundle, including some duplication of documents. This resulted in a
substantial portion of the appeal record being irrelevant
and
unnecessarily reproduced. A court should discourage such conduct and
I will reflect this in the costs order.
[23]
In the circumstances, the appeal regarding the contracting party
falls to be dismissed. The appeal regarding the amount awarded
for
the stone succeeds, and the award must be reduced by R251 497.08.
The cross-appeal regarding the additional standing time
is dismissed.
The cross-appeal regarding the increased amount for the actual work
completed succeeds, and the award must be increased
by R85 482.22.
[24]
Finally, it was common cause that the respondent was indebted to the
appellant in the amount of R1 619 728.71 and that the
amount should
be set off against the amount owed to the respondent. The parties
were also in agreement as to the manner in which
interest is to be
awarded.
[25]
I propose that the following order be made:
1.
The appeal is dismissed
with costs save in so far as the amounts awarded by the court
a quo
is varied herein.
2.
The appellant is to pay the costs occasioned by the inclusion of
volumes 2 and
9 to 19 of the appeal record on an attorney and client
scale.
3.
The cross-appeal is
allowed in part and is dismissed in part.
4.
The order of the court a quo is substituted with the following:
4.1
In case number 34486/2012 judgment is given in favour of the
appellant against the respondent
in the amount of R1 619 728.71.
4.2
In case number 26870/2011 judgment is given in favour of the
respondent against the appellant
in the amount of R2 032 365.22.
4.3
The amount in the para 4.2 above is set off against the amount
awarded in para 4.1 above,
resulting in a difference of R412 636.50.
4.4
The appellant is ordered to pay the amount in para 4.3 above to the
respondent.
4.5
The appellant is ordered to pay interest on the amount referred to in
para 4.3 above at
the ra
te of 15.5%, calculated from 15 July
2011 to date of final payment.
4.6
The appellant is ordered to pay the respondent’s costs in case
number 26870/2011 inclusive
of senior counsel fees as well as the
costs of the postponement reserved on 12 October 2012 on the scale as
between attorney and
client.
_____________
Wepener
J
I
agree and it so ordered.
____________
Mavundla
J
I
agree.
____________
Twala
J
Counsel
for Appellant: A.G. Sawma SC
Attorneys
for Appellant: Fairbridges Wertheim & Becker
Counsel
for Respondent: H van Eeden SC
Attorneys
for Respondent: Muller Voigt Attorneys
[1]
Nash v Golden Dumps (Pty) Ltd
1985 (3) SA 1
(A) at 22E.
[2]
Crest Enterprises Ltd v R Beleggings Bpk
1972 (2) SA 863
(A)
at 869A-870B:
[3]
See
Shelagatha Property Investments CC v Kellywood Homes (Pty)
Ltd
1995 (3) SA 187
(A) at 196F-H and
Thomas Construction
(Pty) Ltd (In Liquidation) v Grafton Furniture Manufactures
(Pty) Ltd
1988 (2) SA 546
(A) at 564B-D.