MSC Depots (Pty) Ltd v WK Construction (Pty) Ltd and Others (734/07) [2010] ZAECPEHC 4; 2011 (2) SA 417 (ECP) (4 February 2010)

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[2010] ZAECPEHC 4
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MSC Depots (Pty) Ltd v WK Construction (Pty) Ltd and Others (734/07) [2010] ZAECPEHC 4; 2011 (2) SA 417 (ECP) (4 February 2010)

FORM A
FILING SHEET FOR SOUTH EASTERN
CAPE LOCAL DIVISION JUDGMENT
PARTIES
:
Case
Number:
734/2007
High
Court:
Port
Elizabeth
DATE
HEARD:
31
November 2009; 1 – 4 December 2009; 8 – 11 December 2009
DATE
DELIVERED:
4
February 2010
JUDGE(S):
D.
Chetty
LEGAL
REPRESENTATIVES –
Appearances:
for
the Plaintiff(s):
Adv
Pammenter SC/ Adv Mossop
for
the Defendant(s):
Adv
Nelson SC / Adv Huisamen
Instructing
attorneys:
Plaintiff(s):
Shepstone
& Wylie
c/o
Goldberg & De Villiers
Defendant:
Joubert
Galpin & Searle
CASE
INFORMATION -
Nature
of proceedings
:
Topic:
Key Words:
Practice
– Absolution from the instance – Building contract – JBCC
series 2000 – Clause 15.3 providing that contractor proceed
with
due skill, diligence, regularity and expedition – Contention
advanced that clause be read in isolation and not in conjunction
with
clause 17.2 - Such would lead to absurdity in as much as contractor
could be precluded from remedying defects as instructed
by principal
agent and yet finding itself in breach of Clause 15.3 – Where
contract instructions issued Clause 15.3 must be interpreted
having
regard to the provisions of Clause 17 – Contractor commenced
remedial work but instructed to discontinue – Such act clearly
not
in breach of Clause 15.3 – Latent defects – Clause 27.1 affording
contractor opportunity to remedy latent defects – Where
such
contractor willing and able to attend thereto prior to final
completion stage being reached, contractor not in breach of Clause
15.3 provided it remedies such defects with due skill, diligence,
regularity and expedition
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE, PORT ELIZABETH)
Case No: 734/07
In
the matter between:
MSC
DEPOTS (PTY) LIMITED Plaintiff
And
W
K CONSTRUCTION (PTY) LTD
WYNFORD’S
CIVIL AND DEVELOPMENT CC First Defendant
P
D NAIDOO & ASSOCIATES Second Defendant
P.D
NAIDOO AND ASSOCIATES AND
BHAM
TAYOB KHAN MATUNDA Third Defendant
Coram:
Chetty,
J
Dates Heard:
31
November 2009; 1 – 4 December 2009; 8 – 11 December 2009
Date Delivered:
4
February 2010
Summary:
Practice
– Absolution from the instance – Building contract – JBCC
series 2000 – Clause 15.3 providing that contractor proceed
with
due skill, diligence, regularity and expedition – Contention
advanced that clause be read in isolation and not in conjunction
with
clause 17.2 - Such would lead to absurdity in as much as contractor
could be precluded from remedying defects as instructed
by principal
agent and yet finding itself in breach of Clause 15.3 – Where
contract instructions issued Clause 15.3 must be interpreted
having
regard to the provisions of Clause 17 – Contractor commenced
remedial work but instructed to discontinue – Such act clearly
not
in breach of Clause 15.3 – Latent defects – Clause 27.1 affording
contractor opportunity to remedy latent defects – Where
such
contractor willing and able to attend thereto prior to final
completion stage being reached, contractor not in breach of Clause
15.3 provided it remedies such defects with due skill, diligence,
regularity and expedition
________________________________________________________________
JUDGMENT
________________________________________________________________
CHETTY,
J
[1] This is an
application which has been made by the first defendant at the end of
the plaintiff’s case for absolution from the
instance. In order to
appreciate the issues which arise for consideration, it becomes
necessary to consider the pleadings, the contract
documents and the
nature of the evidence adduced. Before embarking upon that exercise
however, it is apposite to record certain events
which occurred
during the trial. On the morning of the hearing I was informed that
there would be no appearance on behalf of the
third defendant, a
joint venture comprising the second defendant and a firm of quantity
surveyors, Bham Tayob Khan M
atunda
(BTKM) in view of a settlement having been reached. The plaintiff’s
cause of action against the third defendant, succinctly
put, was that
in terms of a written agreement concluded between themselves the
third defendant was appointed as the project manager
and breached the
agreement by failing to perform its quality management obligations as
a result of which the first defendant failed
to carry out its work in
accordance with the design with the requisite degree of skill and
diligence. On the third day of trial
the matter between the second
defendant and the plaintiff was likewise settled although the exact
parameters of the settlement reached
were not fully divulged. The
plaintiff’s cause of action against the second defendant was based
on a written agreement concluded
between them which the plaintiff
alleged had been breached in as much as the design was inadequate for
the pavement to withstand
the weight it would be subjected to and
failed to monitor the site works. Consequently and notwithstanding
the citation of the second
and third defendants as defendants the
first defendant is the sole remaining defendant. To avoid any
confusion however I shall refer
to the parties as cited in the
plaintiff’s particulars of claim.
Introduction
[2] The plaintiff,
as its name indicates, is a shipping company. It concluded an
agreement with Volkswagen South Africa for the delivery
of motor
vehicle parts to it’s factory in Uitenhage and required a container
depot in order to fulfil its contractual obligations.
By reason of
the contractual time frames relating to the delivery of the
containers, the Nelson Mandela Logistics Park in Despatch
,
in close proximity, provided the ideal site for the construction of a
container depot where the full and empty containers could
be stored.
The second defendant, a firm of consulting engineers and the third
defendant, a joint venture comprising the second defendant
and BTKM
were engaged
1
by the plaintiff to oversee the project. Plans were duly prepared, a
bill of quantities prepared and the contract awarded to the
first
defendant. Upon completion of the container depot and prior to its
full operational capacity being reached premature surface
deformation
of the surface paving occurred. Investigations were conducted and
reports detailing the probable cause of the pavement
failure were
prepared by the second defendant and in addition, the first
defendant, of its own accord and expense, commissioned a
firm of
engineers, Ninhaan Shand, to investigate and report. The first
defendant was thereafter instructed by the second defendant
to effect
certain remedial work and commenced therewith but shortly thereafter
was instructed by them to stop. The plaintiff thereafter
dispensed
with the services of the second defendant and engaged Vawda Thornton,
a firm of consulting engineers to examine the cause
of the pavement
failure and to do whatever was necessary to render the container
depot functional. It is common cause that at the
outset of the
initial contract it was in the contemplation of all the contracting
parties that the pavement would, given the tremendous
forces it would
be subjected to, remain operational for a period of 20 years. It is
not in dispute that the pavement in its present
state,
notwithstanding the remedial work, has a lifespan of between three to
five years.
The Pleadings
[3] In its amended
particulars of claim the plaintiff alleged that annexure A thereto
constituted the agreement concluded between
it and the first
defendant. Annexure A is a standard building agreement prepared by
the joint building contracts committee incorporated
known
colloquially as the JBCC series 2000. I shall refer to it
interchangeably as either the JBCC 2000 or the agreement. The
particulars
of claim further alleged that the first defendant, in its
capacity as the contractor, was to carry out certain works comprising
the
bulk earthworks, paving, storm water, water and sewerage
reticulation and mast lighting at the container depot. In
amplification
and by incorporation it referred to the bill of
quantities and contract drawings and averred that the first defendant
was to perform
its contractual obligations in conformity therewith
with
“due
skill, diligence, regularity and expedition to bring the works to,
inter alia, final completion”
in terms of clause 15.3 of the JBCC.
[
4] The
respects in which the first defendant is alleged to have materially
breached the agreement is stated in paragraph 10 of the
particulars
of claim as –
“
(a) The
specifications called for the project to include a paved surface of
the container park of paving blocks laid in a herring
bone pattern;
(b) The First Defendant
laid the paving blocks unevenly over the entire site with varying
joints widths;
(c) The
paving blocks are creeping and opening and the jointing sand between
the blocks is being washed out by storm water;
As a result of the
aforegoing:
the storm water will
reach the bedding sand on which the paving blocks are laid;
once saturated the
bedding sand will allow further creep of the paving blocks which
will ultimately lead to the failure of the
underlying works;
There is a joint in
the paving where the herring bone patterns meet. This joint is
failing due to lack of interlock which will ultimately
lead to the
failure of the underlying layers;
There are two service
manholes in the paved surface each of which is surrounded by a
concrete apron. In each case this apron, together
with the
surrounding block paving, has failed as a result of a lack of
compaction around the manholes;
Large settlements and
deflections have occurred along the construction stake lines due to
incorrect construction processes and compaction;
The in-situ material
is poorly compacted thus impacting on the bearing capacity of the
paving.”
The evidence
[
5] These
alleged defects which the plaintiff contended constituted a material
breach of contract pursuant to the provisions of clause
15.3 were in
fact sourced from an inspection report compiled by the plaintiff’s
expert, Mr
Doyle
,
of Vawda Thornton, a firm of consulting civil and structural
engineers who had been commissioned by the plaintiff to determine the
cause of the failures of the surface paving at the container depot.
It is unnecessary for purposes of this judgment to refer to it
in any
detail save to record that it constituted the basis upon which the
plaintiff’s claim against the defendant was formulated.
The essence
of
Doyle’s
evidence was that the thickness of the bedding sand did not comply
with SABS 1200; that 40% of the bedding sand exceeded the specified
thickness; that the coarse aggregate in both the base and sub-base
layers exceeded the maximum dimensions specified in the SABS 1200
ME
and SABS 1200 MF. In addition evidence relating to the lack of
compaction along the stake lines and the presence of a butt joint
on
the paved surface was tendered to show that the first defendant
failed to construct the pavement in accordance with the design.
The
aforementioned defects constitute the basis of the plaintiff’s
cause of action against the first defendant as will be gleaned
from
the reproduction of the particulars of claim in the preceding
paragraph.
[6] It was
submitted on behalf of the first defendant that in order to ward off
absolution the enquiry is not confined to determining
the possible
causes of the defects but that it was incumbent on the plaintiff to
overcome two distinct and separate hurdles. Mr.
Nelson
submitted that the plaintiff had firstly to adduce sufficient
evidence of those alleged defects and secondly, it was required to
establish that the defects are in fact and in law such as to
constitute a breach of clause 15.3 of the JBCC 2000.
[7
] In
my judgment, and upon a proper interpretation of the contract, the
submission is unassailable. To appreciate the cogency of the
argument
it is apposite firstly to set out the terms of the clause and then
the correct approach to the interpretation of construction
contracts.
Clause 15.3, minus its sub-clauses reads as follows –
“
15.3
On being given possession of the
site
the
contractor
shall commence works within the period stated in the
schedule
and proceed with due skill, diligence, regularity and expedition and
bring the works to. . .”
A useful synopsis
concerning
the interpretation of building contracts is articulated, with
reference to authority, by Eyvind Finsen,
The
Building Contract
2
as
follows –
“
1.8.1 The
first rule is to determine what the parties intended, and to give
effect to it. “The golden rule, applicable to the interpretation
of
all contracts, is to ascertain and to follow the intention of the
parties; and if the contract itself . . . affords a definite
indication of the meaning of the contracting parties, then it seems
to me that
a
court should always give effect to that meaning.”
33
1.8.2 When
setting out to interpret a particular word or phrase, it must be
considered in context and not in isolation. “Wat natuurlik
aanvaar
moet word, is dat, wanneer die betekenis van woorde in ‘n kontrak
bepaal moet word, die woorde onmoontlik uitgeknip en
op ‘n skoon
stuk papier geplak kan word en dan beoordeel moet word om die
betekenis daarvan te bepaal. Dit is vir my vanselfsprekend
dat ‘n
mens na die betrokke woorde moet kyk met inagneming van die aard en
opset van die kontrak, en ook na die samehang van die
woorde in die
kontrak as geheel.”
3
4
1.8.3 Words
should be given their common meaning unless it is obvious that the
parties intended a different meaning, or that the common
meaning does
not make sense in the context.
1.8.4 Where words in a
particular context may have more than one meaning, the meaning shall
be chosen that will make the context sensible
and applicable rather
than one that makes it ineffective.
1.8.5 Where a clause is
ambiguous, it shall be interpreted so that it is in harmony with the
whole contract. A contract must be interpreted
as a whole.
1.8.6 Where
a general word or phrase follows a series of specific words or
phrases, the meaning of the general word or phrase shall
be
restricted to the same category as the specific words or phrases. For
example, in a clause referring to damage by fire, storm,
flood
earthquake and other disasters, the words ‘other disasters’
cannot refer to riot damage, because the former are natural
disasters
while the latter is due to human action. This is known as the
eiusdem
generis
,
(or ‘same class’) rule.
1.8.7 Words
written by hand take precedence over typewritten words, which in turn
take precedence over printed words.
1.8.8 Later
written words take precedence over earlier written words.
3
5
1.8.9 Where
none of these rules assists in resolving the ambiguity, the meaning
is to be adopted which is the less favourable to the
author of the
words, because he had the opportunity to avoid ambiguity. This is
known as the
contra
proferentem
rule.
[8
] Consequently
it is of fundamental importance to immediately take cognisance of the
fact that clause 15.3 has a number of sub-paragraphs
which, as a
matter of common sense and logic, requires that the entire section be
read conjunctively. The Sub-paragraphs read as
follows:
“
15.3.1
No
clause
Practical
completion
in terms of 24.0
Works
completion
in terms of 25.0
Final
completion
in terms of 26.0”
It is apparent from the aforegoing
that the clause identifies these distinct phases in each of which
duties and obligations are cast
upon the contractor and the principal
agent.
[9]
Notwithstanding
the various respects which the plaintiff alleged were construction
faults caused by the first defendant’s defective
workmanship, the
evidence adduced appears somewhat at variance with the admission in
the particulars of claim, that
“the
first defendant constructed the project according to the second
defendant’s design”
.
As between themselves therefor it was not an issue that the first
defendant performed its mandate in conformity with the second
defendant’s design. Mr.
Nelson
submitted that the allegations relied upon in the particulars of
claim that the first defendant did not perform the work entrusted
to
it properly was not based on any evidence that the first defendant
did not execute the work strictly in accordance with the engineer’s
design or instructions issued to it from time to time. He submitted
that the evidence relied upon to the effect that the work was
not
executed properly was based upon inferences drawn from the Indlela
reports, the on site observations by
Doyle
and inferences drawn from the Lockpave program and that in view of
the concessions made by
Doyle
and the other experts there was insufficient evidence to show that
the first defendant did not perform the work properly. That argument
is in my view unassailable.
[10
] Doyle
was constrained to concede not only that the bedding sand specified
in the SABS 1200 MJ was virtually impossible to source
locally but
that the type of bedding sand used by the first defendant was
utilised as a matter of routine by paving contractors.
Notwithstanding his earlier evidence that the butt joint was a
construction defect caused, so he stated, by the first defendant’s
complete disregard of the plans and specifications he was constrained
to concede under cross-examination that no fault could be attributed
to the first defendant by reason of the fact that the butt joint was
created by the instruction issued to the first defendant by
the
second defendant to lay the interlocking pavers from opposite ends.
Had
Doyle
taken the liberty to investigate these instances of what he concluded
were defects in the construction with the second defendant
he would
no doubt have been told that in both instances, the first defendant
acted precisely as instructed by the second defendant.
Even on the
acceptance of
Doyle’s
further evidence that some of the coarse aggregate in the sub-base
and base layers exceeded the specified maximum dimensions this
does
not assist the plaintiff’s case. The presence of some coarse
aggregate in excess of the specified maximum dimensions cannot
result
in the drawing of an inference that the first defendant failed to
construct the works in accordance with the design. There
is
insufficient evidence to show that the presence of some coarse
aggregate in the layer works in any way contributed to the failure
of
the pavement. The Indlela report clearly does not afford
corroboration for
Doyle’s
testimony nor on his own version can it be inferred that the coarse
aggregate he uncovered emanated from the base or sub-base layers.
During the subsequent remedial work excavations were done and the
real possibility that these formed part of the in-situ material
cannot be discounted.
[11] The evidence
adduced is moreover insufficient to establish that the deflections
which occurred along the stake lines were attributable
to incorrect
construction processes or compaction. The Indlela report confims that
the compaction was properly executed and upon
an appraisal of the
evidence adduced on behalf of the plaintiff, I am unable to find that
the first defendant did not perform the
work properly. There is
furthermore no evidence that when the first defendant sought a
certificate of practical completion of the
works in terms of clause
24 of the JBCC 2000 the works had not been performed with due skill,
diligence, regularity and expedition.
What in fact transpired is
that only snag lists were issued by the second defendant which, it is
common cause, were duly attended
to by the first defendant. When
thereafter depressions and deflections manifested themselves, the
first defendant commenced remedying
same until it was instructed by
the second defendant to desist.
The Contract
[
12] I
turn then to consider the diametrically opposing contentions advanced
on behalf of the parties regarding the alleged breach
of clause 15.3.
Mr.
Pammenter
submitted that clause 15.3 is to be read on its own and not, as
submitted by Mr.
Nelson
in conjunction with its sub-paragraphs and clause 17. He argued that
the latter’s submissions completely overlooked the fact that
the
agreement drew a clear distinction between a failure to carry out a
contract instruction (clause 17) and a failure to proceed
with due
skill, diligence, regularity and expedition as provided for in clause
15.3. In making the submission he relied principally
on clause 36.1
which reads as follows –
“
36.1 The
employer
may cancel this
agreement
where the
contractor
:
Fails to comply in
terms of 15.1 or 15.3
Refuses to comply
with a contract instruction subject to 17.2”
[1
3] In
my view clause 36.1 cannot be read in isolation but must be
considered in conjunction with clause 36.2 which provides –
“
36.2
Where the
employer
considers cancelling this
agreement
,
the
principal
agent
shall be instructed to notify the
contractor
of such default in terms of 36.1. The issuing of such a notice shall
be without prejudice to any rights that the
employer
may have.”
[1
4] It
follows as a matter of logic that the interpretative method
propounded by Mr.
Pammenter
viz. that clause 15.3 must be read in isolation, cannot be correct
for it will clearly lead to an absurdity. On that interpretation
the
contractor could be precluded from remedying defects as instructed by
the principal agent and still find itself in breach of
clause 15.3
and be confronted with cancellation of the agreement by the employer.
[1
5] The
evidence adduced conclusively establishes that the second defendant
frequently issued contract instructions to the first defendant.
Two
examples will suffice. Firstly,
Doyle
could not dispute that when the non-availability of lime to stabilize
the layers was raised by the first defendant with the second
defendant, the latter, notwithstanding the specifications, instructed
the former to proceed without lime stabilization. Secondly,
and again
contrary to the specifications, the first defendant was instructed to
lay the paving from two sides notwithstanding the
creation of a butt
joint thereby. These two examples of contract instructions indicate
quite unequivocally that clause 15.3 cannot
be read in isolation but
must be read in conjunction with its sub-clauses and clause 17. That
this was in effect understood by all
the parties is evidenced not
only in the request by the first defendant for the second defendant
to provide it with a certificate
of practical completion but
furthermore by
Georgiev’s
own evidence that when the problems on the pavement first manifested
themselves the initial call was for the first defendant to remedy
the
problem. The second defendant likewise recognized that in terms of
the agreement the first defendant was contractually bound
to remedy
whatever defects arose, for it instructed the latter to forthwith
commence therewith. The further instruction to desist
from continuing
with the remedial work is a further indicator that clause 15.3, its
sub-clauses and clause 17 cannot be read in isolation.
In
The
Building Contract
3
,
Finsen, under the heading
Building
Contracts
,
specifically deals with contract instructions and in particular
clause 17.1.1 and it is evident from Chapter 12 that clause 15.3
must
be read in conjunction with clause 17. In such circumstances it
scarcely behoves the plaintiff to suggest that the first defendant
is
in breach of clause 15.3 of the JBCC 2000. In my judgment not only
has the plaintiff failed to adduce sufficient evidence that
the first
defendant performed the work entrusted to it defectively but it has
moreover failed to show that it breached clause 15.3
of the JBCC
2000. On that ground alone the application for absolution must
succeed. There is however a further basis.
Repudiation of the Agreement
[1
6] The
allegations relied upon in support of the contention that the first
defendant repudiated the agreement are that:
The letter of demand in which
cancellation was communicated was incorrectly addressed;
The alleged breaches which the first
defendant relied upon for cancellation were either conceded within
ten days or were without
substance; and
The first defendant was precluded
from terminating the agreement as it was itself in breach of a
material term of the agreement.
I have hereinbefore
already found that there is no substance to the contention that the
first defendant breached clause 15.3 of the
JBCC 2000. The remaining
grounds relied upon as constituting repudiation are likewise without
substance. Clause 38.2 of the JBCC
2000 provides that
“where
the contractor considers cancelling the agreement notice shall be
given to the employer and the principal agent of the defendant
in
terms of 38.1 . . .”
The clause merely requires that notice of the intended cancellation
be given to the employer. The mere fact that the letter was addressed
to the second defendant and copied to the plaintiff is a spurious
complaint.
[1
7] The
breaches relied upon by the first defendant for cancellation of the
agreement are encapsulated in a letter dated 14 August
2006 and
stated as follows –
“
1. The Principal
Agent has failed to issue a Payment Certificate in terms of Clauses
31.0 and/or 34.0 and/or
2. The Principal Agent
has failed to issue a Statement to the Contractor in terms of Clauses
31.13.1 and/or
3. The Employer has
failed to pay the amount certified in terms of Clauses 31.9 and/or
34.1
4. The Employer is
preventing the Principal Agent from exercising his independent
judgment regarding the performance of his duty and
the Contractor is
being prejudiced by such action.”
[1
8] In
terms of clause 38.1 a contractor may cancel the agreement where the
principal
agent
fails to issue any payment certificates in terms of clauses 31.0 or
34.0 or fails to issue a statement to the contractor in terms
of
clause 31.13.1; the employer fails to pay the amount certified in
terms of clauses 31.9 or 34.10 or prevents the principal agent
from
exercising his independent judgment regarding the performance of his
duty and the contractor being prejudiced by such action.
It will be
gleaned from the aforegoing that any one breach would entitle the
contractor to cancel the agreement and it follows as
a matter of
course that absolution must be granted if the plaintiff fails to
establish that each of these four grounds was not sound.
[1
9] It
was submitted on behalf of the plaintiff that in as much as the first
defendant’s complaint is that certificate number 4 was
never issued
to it on 25 August 2006, no cancellation can be based on its
non-payment. The first defendant’s cancellation was premised
on the
failure by the second defendant to issue interim payment certificates
for the months of April, May, June and July 2006. Whilst
conceding as
much the plaintiff disingenuously seeks justification therefore by
alleging that had the second defendant in fact issued
such interim
payment certificates the amount reflected therein as being due for
payment would not have been paid by reason of the
fact that the first
defendant was not entitled to any further payment.
[20
] The
fact that a payment certificate reflects a nil balance affords no
justification for not issuing it. Clause 31.1 expressly provides
that
“the
payment certificate may be for a nil or negative amount . . .”
The non issue of these interim payment certificates by the second
defendant clearly amounted to a breach of clause 31 of the agreement
which entitled the first defendant to cancel the contract. Similar
considerations apply to the failure by the second defendant to
issue
a recovery statement as provided for by clause 33.1. The failure to
do so likewise entitled the first defendant to cancel the
agreement.
[21
] It
is not in issue that the second defendant issued payment certificate
number 4 and that the plaintiff authorised such payment.
What then
transpired is that the plaintiff’s director, Mr.
Georgiev
,
countermanded payment which in turn elicited a response from the
second defendant that such a recommendation would constitute a
breach
of the agreement. Notwithstanding, the amount was not paid, remains
outstanding and the first defendant’s entitlement thereto
has
clearly been established.
Georgiev’s
explanation for countermanding the authorised payment was that in the
plaintiff’s view the work was not done according to specification
and that the costs of the remedial work would be disproportionate to
the amount authorised hence the plaintiff was entitled to withhold
payment. The JBCC 2000 vested the second defendant with full
authority and obligation to act in terms of the agreement, but,
despite
the latter’s recommendation that payment be effected, the
plaintiff desisted from acting in compliance with the principal
agent’s
recommendation. In such circumstances there can be no
question that the plaintiff prevented the second defendant from
exercising
its independent judgment regarding the performance of its
duty. Quite clearly the first defendant suffered prejudice thereby
which
entitled it to cancel the agreement.
Latent Defects
[
22] Allied
to the submission that the first defendant was obliged in terms of
the agreement to execute the contract with due skill.
diligence,
regularity and expedition was the further contention advanced on
behalf of the plaintiff that the first defendant was
furthermore
obliged to perform its mandate free of defects. Arguing from the
premise that all the work performed by the first defendant
had been
performed in conformity with the requirements of clause 15.3 and had
been approved by the second defendant, subject of course
to
compliance with a snag list, Mr.
Nelson
agreed in broad terms with Mr.
Pammenter’s
submission with the qualification that this related to the stage when
final completion is reached in terms of clause 26.0 and does
not
include latent defects. Relying principally on clause 27.1 of the
agreement, Mr.
Nelson
correctly submitted that it is apparent therefrom that where a
contractor is willing and able to attend to defects that manifest
themselves prior to final completion being reached in terms of clause
26.0, such a contractor cannot be in beach of clause 15.3 provided
that he remedies such defects with due skill, diligence, regularity
and expedition.
[2
3] I
am satisfied that the first defendant is entitled to an order of
absolution from the instance together with costs, such costs
to
include the costs of two counsel as well as the qualifying fees of
the first defendant’s expert witnesses in respect of whom
expert
summaries were filed.
_______________________
D.
CHETTY
JUDGE
OF THE HIGH COURT
On
behalf of the Plaintiff: Adv C. J Pammenter SC / Adv R.G Mossop
Shepstone
& Wylie
c/o
Goldberg & De Villiers
13
Bird Street
Central
Port
Elizabeth
Ref:
C Moodliar
Tel:
041-501 9800
On
be half of the First Defendant: Adv A.J Nelson SC / Adv J.D Huisamen
Joubert
Galpin & Searle
173
Cape Road
Mill
Park
Port
Elizabeth
Ref:
W Parker
Tel:
041-396 9234
1
I use the word advisedly because in
its plea, the second defendant denied being appointed consulting
engineer by the plaintiff but
alleged that it had been appointed the
consulting engineer by the third defendant. (For purposes of this
judgment however nothing
turns on this).
2
A Commentary on the JBCC Agreements: Second Edition at p 10 to 11
33
Joubert v
Enslin
1910 AD 6
3
4
Rumpff CJ in Swart en ‘n ander v Cape Fabrix (Pty) Ltd
1979 (1) SA
195
(A) at 202C.
3
5
This rule may be taken further in building contracts in so far as
that, where there is a discrepancy between one drawing and another,
the provisions of the later prepared or issued drawing take
precedence over those of the earlier.
3
See infra footnote at p 8