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South Africa: North Gauteng High Court, Pretoria
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[2010] ZAGPPHC 586
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Sebothoma v Sithole (A627/2007) [2010] ZAGPPHC 586 (16 February 2010)
IN
THE NORTH GAUTENG HIGH COURT, PRETORIA
Date Heard: 16
February 2010
Case Number: A
627/07
M.D
SEBOTHOMA
.......................................................................................................................
APPELLANT
and
A B
SITHOLE
.............................................................................................................................
RESPONDENT
JUDGMENT
LOUW J
The appellant
appeals the decision of the magistrate for the district of Mokerong,
Mahwelereng given on 21 July 2006.
It is common cause
that there was an oral contract between the appellant and the
respondent. In terms of this contract the respondent
would have
performed building work, including renovation of class rooms, at
Phahlaphahla secondary school.
The appellant, on
completion of the work, would pay the respondent the amount of R 110
000.
The
respondent alleged in his summons that there was in fact a further
agreement, namely that the appellant instructed him to do
additional
work for which an amount of R 40 000 was agreed upon. The respondent
further alleged that he had so far been paid the
amount of R 70 000.
Thus, on the respondent version the total of the contract amount plus
the additional work amounted to R 150
000. Deducting the alleged
payment of R 70 000 that
would
leave a balance of R 80 000.
The plaintiff
further alleged in paragraph 7 of his summons that the appellant in
fact paid his labourers the amount of R 13 257.
This left a balance
in the amount of R 66 743 which was the amount claimed in the
summons.
The magistrate gave
a well - reasoned judgment which found the following:
1. That no
additional work was agreed upon and that the total contract prize was
therefore R 110 000.
2. That in fact the
amount of R 80 000 was paid by the appellant and not R 70 000 as
alleged by the respondent.
3. Thus the court
granted judgment in favour of the respondent in the amount of R 30
000.
It is further common
cause that before the completion of the work, namely on 7 March 2003
the respondent as well his assistant Ramuru
were seriously injured in
a motor vehicle accident and were hospitalised. The work was
completed a few days later also during March
2003.
In
the light of the respondents injury the appellant pleaded that there
was a
“
supervening
impossibility”
of
performance. He, the appellant, therefore had to complete the work
himself and it is pleaded that therefore the respondent was
not
entitled to any payment at all. At no stage did the appellant cancel
the contract.
It can be accepted
that due to the respondent’s hospitalisation the appellant had
to take a more active roll in the construction
project. He alleged
that he made payments to workers during the respondent’s
absence. He was however not sure what amount
he had paid. On a
question as to how much did he pay, his answer was as follows:
“
I
cannot remember, because I paid them twice. It can be about R 26 000"
Thus evidence is
obviously not reliable as the appellant was not sure what amount he
had paid.
In
the light of the respondent’s own version it can therefore be
accepted that appeiiani paid R 13 257. The magistrate found
that the
latter payment was
“
neither
here nor there”.
I cannot agree with
the latter finding of the magistrate. Otherwise the magistrate’s
judgment cannot be faulted.
The
work contracted for was completed, albeit not under the personal
supervision of the respondent. This does not matter as this
was not
the kind of contract where
personal
performance
was required. In the light hereof the balance of the contract prize
namely R 30 000 was payable. From this has to be
deducted the amount
of R 13 257. This leaves a balance of R 16 743. This is the amount
that the magistrate should have found was
due to the respondent.
Interest has to run from the date of issue of the summons namely 4
February 2004.
I therefore find as
follows:
1. The appeal
succeeds with costs.
2. The order of the
court below is substituted with the following:
2.1 The defendant is
ordered to pay the plaintiff the amount of R 16 743.
2.2 The defendant is
ordered to pay interest on the aforesaid amount at the rate of 15,5%
per annum from 4 February 2004 until date
of payment.
AA LOUW
JUDGE OF THE HIGH
COURT
I agree
V V TLHAPI
JUDGE OF THE HIGH
COURT