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[2011] ZAGPPHC 123
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ME Aqua Civils & Maintenance CC and Others v No 17 Metallurgical Construction Co t/a Readira Projects joint Venture and Others (37223/11) [2011] ZAGPPHC 123 (25 July 2011)
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT)
Case
Number: 37223/11
DATE:25/07/2011
In
the matter between:
ME
AQUA CIVILS & MAINTENANCE
CC
..........................................................
1st
APPLICANT
(IN
LIQUIDATION)
TIM
TRADING (PTY)
LTD
.................................................................................
2nd
APPLICANT
t/a
HANNES HARDWARE & TILE CENTRE
ON
SITE TOOLS
CC
........................................................................................
3rd APPLICANT
BONUSWAY
9 (PTY)
LTD
.................................................................................
4
th
APPLICANT
t/a
ROAD STONE CRUSHERS
vs
NO
17 METALLURGICAL CONSTRUCTION
CO
........................................
1st
RESPONDENT
t/a
READIRA PROJECTS JOINT VENTURE
BASE
MAJOR CONSRUCTION (PTY)
LTD
...............................................
2nd RESPONDENT
READIRA
REFUSE SERVICES
CC
...........................................................
3RD
RESPONDENT
THE
PREMIER FOR THE PROVINCE
OF
...................................................
4th
RESPONDENT
MPHUMALANGA
THE
MEMBER OF THE EXECUTIVE
COMMITTEE,
...................................
5
th
RESPONDENT
DEPARTMENT
OF ROADS AND TRANSPORT, MPHUMALANGA PROVINCE
THE
DEPARTMENT OF ROADS AND TRANSPORT
..................................
6th RESPONDENT
MPHUMALANGA
PROVINCE
JUDGMENT
Delivered
on: 25 July 2011
POTTERILL
J,
1.
The applicants are applying for the following relief:
"1.
That this Application be entertained as one of urgency and that the
normal rules relating to time periods and service be
dispensed with
in terms of Rule 6(12) of Uniform Rules of Court; 2 The Fourth, Fifth
and Sixth Respondents are ordered not to make
any further payment to
the First, Second and/or Third Respondents in respect of any
remuneration payable to First, Second and Third
Respondents relating
to the project numbers RTT/129/08MPs and RTT/130/08MPs;
3.
That the Respondent be committed to jail for a period of three months
or such other and / or on such conditions as the Court
may deem
appropriate, but which Order should be suspended on condition that
the Respondent hence forth comply with the Order of
this Honourable
Court referred to above;
4.
That the Applicants are ordered to institute action against First,
Second and Third Respondents and any other party they may
be advised
to within 30 days from date of this Order, failing which this Interim
Interdict will lapse and be of no further force
and effect and the
Applicants become liable to pay the costs of this Application;
5.
An Order that the cost of this Application be cost in the action
referred to hereinafter in the event of it being unopposed,
but in
the event of any Respondent/Respondents opposing this Application
that such Respondent/Respondents be ordered to pay the
costs of this
Application.
6.Further
and/or alternative relief"
2.
The first, second and third respondents are opposing the application.
3.
The following common cause facts set out the background to the
application:
3.1
The second and third respondents formed a joint venture which
cumulated in the first respondent, hereinafter referred to as
the"
Joint Venture."
3.2
The Provincial Authority granted the joint venture two contracts with
numbers RTT/129/08/MP and RTT/130/08/MP which related
to roads and
bridges being constructed or upgraded around the MombeSa Soccer
Stadium in Nelspruit for the 2010 Soccer World Cup.
3.3
The first applicant was appointed as sub-contractor by the first
respondent under contract number RTT/120/08/MP as reflected
on "KV6"
attached to the applicants founding affidavit.
3.4
In terms of the contract the Joint Venture had to pay to the First
Applicant an amount of R51 723 100.55.The Joint Venture paid
an
amount of R46 914 834.15 to the First Applicant. A balance of R4 808
266.40 remained unpaid.
3.5
The relationship between the First Applicant and the Joint Venture
soured in that the First Applicant accused the Joint Venture
of
non-payment of the amounts owing to it and visa versa the Joint
Venture accused the First Applicant of defective workmanship.
The
Joint Venture instructed the First Applicant to vacate the
construction site by 3 December 2009. It is common cause that a
bridge that the First Applicant built had collapsed.
3.6
The First Applicant was placed in voluntary liquidation.
3.7
The Second, Third and Fourth applicants were appointed by the First
Applicant to either render services and/or supply material
for the
contract.
4The
Applicant seeks interim relief and must thus establish:
4.1
a clear right or if not a clear right that it has a prima facie right
4.2
that there is a well-grounded apprehension of irreparable harm if the
interim relief is not granted and the ultimate relief
(by way of the
summons issued) is eventually granted
4.3
that the balance of convenience favours the grant of an interim
interdict; and
4.4
that applicant has no alternative remedy.
As
set out in Reckitt & Coleman SA (Pty) Ltd v S C Johnson & Son
(SA)(PTY)Ltd 1995(1 )SA 725 on 730B the Court must approach
the
application as follows:
"When
the applicant cannot show a clear right, and more particularly where
there are disputes of fact relevant to a determination
of the issues,
the Court's approach in determining whether the applicant's right is
prima facie established, though open to some
doubt, is to take the
facts set out by the respondent which the applicant cannot dispute ,
and to consider whether, having regard
to the inherent probabilities,
the applicant should (not could) on those facts, obtain final relief
at the trial in the main action.
The facts set out in contradiction
by the respondent must then be considered and if serious doubt is
thrown upon the case of the
applicant it cannot succeed."
5.
The applicant submitted that the applicant did in the application set
out triable issues in whether there was breach of contract
and
whether the second, third and fourth applicants were given an
undertaking by Ndlovu that they would be paid by him, i.e. the
Joint
Venture. It was also submitted that their prospects of success at
trial are good.
6.
It is in dispute whether the first applicant was appointed as
sub-contractor under contract number RTT/130/08/MP. :'KV6"
attached to the First Applicant's papers indicate that it was
appointed for RTT/129/08MP and there is no indication of appointment
on RTT/130/08MP. The First Applicant's reply to the Joint Venture's
denial of First Applicant's appointment on RTT/130/08/MP is
set out
in the replying affidavit paragraph 8.2 which reads as follows:
"
These contracts ran conjointly
in any event
. Alternatively a
further revision and/or extension of the first contract was agreed to
between the Provincial Government and the
Joint Venture,
alternatively concluded in respect whereof the existing contract was
extended in an amount of approximately R50
million." [my
bolding]
Paragraphs
23.3 and 23.3 of the replying aW\6ayit then later follows with:
"I
vehemently deny that ME Aqua was not appointed in respect of both
contracts, but only in respect of contract with No RTT/129/08/MP.
...
These
two paragraphs contradict each other; I was appointed versus I was
not appointed, but both contracts in any event run conjointly
or two
further alternatives to its appointment are forwarded. On these facts
and their own document not substantiating their appointment
on
RTT/130/08MP I can not find that the First Applicant has a prima
facie right though open to some doubt, that it was appointed
on
contract RTT/130/08MP. They would accordingly not be entitled to
interdict monies payable to that contract number.
7.
It was submitted that the prima facie right of the First Applicant
flows from the strong case that the Joint Venture must make
payment
to the First Applicant and that the funds must be preserved in order
to ensure that the First Applicant will be able to
execute against
the Joint Venture. The First Applicant averred that the Joint venture
owes the First Applicant the amount of R25
610 217.80. In this regard
a quantity surveyor's "summary of claims against the main
contractor" is attached in support
of this contention. The
respondent denies that it owes the First Applicant this amount or any
amount. Nowhere in the founding affidavit
is it set out how a
contract that was worth R51.7 million to the First Applicant of which
it was paid an amount of R46.9 million
has now escalated to a further
odd R20 million. The attached quantity surveyor's summary indicated
that all knowledge pertaining
to the matter and the figures were
obtained from the First Applicant. From the report itself the court
can perhaps prima facie
accept the calculation of the amount [from
documents supplied by the First Applicant] as correct, but not on
what basis the Joint
Venture's liability for this amount is based.
Where the founding affidavit is silent on the cause of action for
this amount I can
not accept that they should be successful in the
institution of a claim. In response to the Joint
Venture's
denial that there is a basis for such a claim the First Applicant in
the
replying
affidavit sets out in paragraphs 22.3 and 22.4 as follows:
"Only
in respect of the re-design according to the Bridge-Engineer, clearly
indicates that further amounts were authorized
by means of
certificates.
More
over I have been informed that there was in any event an extension of
approximately R50 Million in respect of only this one
project
pertaining to the bridge. However, these and other aspects pertaining
to which amounts are outstanding can be dealt with
at trial. "
The
First Applicant must set out facts in the founding affidavit on which
a Court can consider whether, having regard to the inherent
probabilities, the applicant should on those facts, obtain final
relief at the trial in the main action. The First Applicant is
relying on hearsay evidence that there was an extension of the
contract. No facts are set out that this was the de facto situation
and on what basis the First Applicant would be entitled to R25 odd
million of the R50 million.
As
for the re-design of the bridge it is averred that it is clear that
the engineer authorized further amounts by means of certificates.
This is however not in the founding affidavit set out as the cause of
action on which the First Applicant should be entitled to
monies and
what amount of monies. The amount to be interdicted is so open to
doubt that in the repiy to the Joint's Ventures denial
of any further
amounts owing the First Applicant replied in paragraph 23.3 as
follows:
"At
the very least an amount of R9 million should be interdicted in
respect of payments confirmed by the Respondents...."
The
first applicant however does not set out a prima facie right for 9
million being owed.
In
argument it was submitted that at the very least the second third and
fourth's applicants claims plus the R4 808 266.40 must
be
interdicted. I can find that the balance of R4 808 266.40 owing
flowed from RTT/130/08MP. The Joint Venture set out in its opposing
affidavit in paragraph 9 that the First Applicants workmanship was
defective and that it was incapable of completing the project.
It is
common cause that a bridge fell and a report is attached to confirm
same. The First Applicant does then not have a clear
right to the
balance owing but a prima facie right. In the founding affidavit no
mention is made as to the bridge falling and in
the replying
affidavit there is not a single sentence denying that the bridge
falling was due to their fault. In argument I was
referred to a
sentence in the report of the engineer attached to the Joint
Venture's opposing affidavit wherein the engineer stated:
"1.2
This means that there was no specific procedure in existence that the
Contractor was following. Similarly, the Engineer
also did not have a
specific procedure that was being monitored."
From
this sentence I was asked to find that the Joint Venture could be
jointly negligent in the collapse of the bridge and then
there is a
triable issue. On probabilities I find it a serious lacuna in the
First Applicant's affidavits; the First Applicant
is not prepared to
say under oath that he is not liable for the collapse of the bridge
and in view of the contradictions set up
by the Joint Venture I
cannot find that the First Applicant should be successful in claiming
in the main action.
Certificates'
15 and 16 were not paid. The applicants do not deny that the Joint
Venture had to do remedial work and had to pay
the Joint Venture's
workers salaries. In paragraph 16 of the replying affidavit the
averments by the Joint Venture setting up probabilities
favouring why
payment was withheld, is responded to with it would have to be
cleared up at a trial. If it is not denied there is
nothing to clear
up trial and the First Applicant has not established a prima facie
right.
The
First Applicant does deny in the replying affidavit that they were
not in a position to finish the contract. The triable issue
herein is
that the problems between the parties started not due to their
position to finish the contract but because the Joint
Venture was not
paying the First Applicant although such payments were already
authorized by the Project Engineer. In support hereof
a letter from
the project engineer is attached in support of the applicant's
submission that the Joint Venture had established
a pattern of
non-payment. This letter does not prima facie infer that the First
Applicant was to be paid and therefore should be
successful in the
main action; the First Applicant is simply not mentioned in this
letter. A pattern of non-payment does not found
a prima facie right
in view of the Joint Venture's contradictions that are not
improbable. In the same vein it was pointed out
that other
sub-contractors had brought 3 applications to court whereupon those
sub-contractors were paid. Furthermore the Joint
Venture, Mr Ndlovu
on their behalf, denied liability in those matters, but then paid-up
when a liquidation application was brought
against the Joint Venture,
he thus committed perjury. I most certainly cannot on the papers
before me find that perjury was committed;
many factors could have
played a role why payment took place. Even if in an application as
such before me 1 could make credibility
findings, on the papers
before me, I cannot find mala fides on the part of the Joint Venture
or make an adverse credibility finding
pertaining to the Joint
Venture.
8.
The First Applicant has not proven a prima facie right to an
anti-dissipation interdict of R16 million or any amount. There is
no
basis set out for the R25 million odd claim, nor alternatively for
9million, nor for the balance of the monies owing. The First
Applicant has another remedy, it can institute action. There is not a
single averment that the Joint Venture is wasting or getting
rid of
such funds to defeat his creditors, or is likely to do so. There are
no facts set out by the First Applicant that the Joint
Venture is
getting rid of the funds, or likely to do so, with the intention of
defeating the claims of his creditors. In this regard
Mcitiki and
Another v Maweni
1913 CPD 684
at 687 is applicable. I cannot find any
exceptional circumstances why this rule confirmed in the Knox D'Arcy
Ltd And Others v Jamieson
and Others 1996(4) SA 348 (A) matter must
not be applied.
9.
It was also argued that the First Applicant has a prima facie right
because the payment to be received was earmarked for the
First
Applicant having been appointed as the main sub-contractor. The Joint
Venture denied that the R16 million that is due to
be paid is
earmarked for the First Applicant. The First Applicant was earmarked
to be paid R51 723 100.55.The Joint Venture paid
an amount of R46 914
834.15 to the First Applicant. A further amount of R16million was not
earmarked as a particular fund to which
the First Applicant is
entitled. The balance of R4 808 266.40 could arguable have been
earmarked if the First Applicant had set
out a prima facie right
thereto.
10.
On the facts before me I can find that the First Applicant had
appointed sub-contractors, however the argument on behalf of
the
Joint Venture is correct; there is no contractual relationship
between the Second. Third and Fourth respondents and the Joint
Venture. These applicants rely on a right to claim directly from the
Joint Venture because the obligations of the First Applicant
to pay
materials and services rendered to these applicants were taken over
by the Joint Venture. These applicants can never argue
that the
monies to be interdicted where earmarked funds. They also never
contend that the Joint Venture is getting rid of the funds,
or likely
to do so, with the intention of defeating the claims of these
applicants and is accordingly not entitled to an anti-dissipation
interdict. Mr Erasmus on behalf of the applicants conceded that the
First Applicant in fact is the main applicant and that the
other
applicants are just interested parties. Accordingly these applicants
have not set up a prima facia right open to some doubt.
11.
Accordingly the application is dismissed with costs.
The
applicants to pay first, second and third respondents costs jointly
and severally.
S.
POTTERILL
JUDGE
OF THE HIGH COURT
Matter
heard on: 19 July 2011 Delivered on: 25 July 2011
Attorney
for the Applicant: VAN NIEKERK VAN DEN BURG Attorneys
…
......................................
c/o
SHAPIRO & SHAPIRO
…
.....................................
(Ref:MR
J LOTSA/1023/mc)
Attorney
for the Respondents:MCULU INCORPORATED c/o MUSHWANA Attorneys
…
.............................................
(Ref: M.MUSHWANA /PM/CIV/M037211)