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[2023] ZAFSHC 466
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Maluti Plant Crushers CC v Sedtrade (Pty) Ltd (5073/2019) [2023] ZAFSHC 466 (24 November 2023)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable: YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
Case
number: 5073/2019
In
the matter between:
MALUTI
PLANT CRUSHERS CC
Plaintiff
and
SEDTRADE
(PTY) LTD
Defendant
JUDGMENT
BY:
REINDERS, J
HEARD
ON:
23 AUGUST 2023
DELIVERED
ON:
24
NOVEMBER 2023
[1]
The plaintiff (Maluti Plant Crushers CC – “Maluti”)
issued summons
against the defendant (Sedtrade (Pty) Ltd –
“Sedtrade”) for payment in the amounts of respectively R
4 701 134-00
(Claim A) and R 999 702-76 (Claim B). It is common cause
that the parties had a business relationship which entailed that
Maluti
would supply crushed stone to be used by Sedtrade (a
construction company with Mr Zaid Dockrat as its Chief Executive
Officer [CEO])
in two of the latter’s road rehabilitation
projects. The roads under rehabilitation was that between Sasolburg
and Heilbron
(the “Heilbron project”) and the other from
Twickenham to Polokwane Road (the “Limpopo project”).
[2]
To cater for the needs of the Heilbron project (and on instruction of
Sedtrade), Maluti
had established a crusher plant (borrow pit) during
March 2018 at site near Heilbron where certain of its equipment were
used,
including a plant crusher and a diesel bowser trailer. It is
also not in dispute that a meeting (the “meeting”) was
held between the parties at the head offices of Sedtrade in
Vereeniging on 29 August 2018 to resolve certain issues. The persons
present at the meeting were, on behalf of Sedtrade, Messrs Mike
Valente (contracts manager), Malcolm Victor (site agent), Sudesh
Manilall (quantity surveyor) and Nazir Kathrada (legal advisor). Mr
Drake Ahadji represented Maluti. The Heilbron contract was
later
terminated and site de-establishment had to take place.
[3]
In opposing the relief claimed by the plaintiff defendant, amongst
others, raised
a special plea of a compromise that was reached
between the parties in respect of Claim A and requested this court to
dismiss this
claim with costs. At the onset of the trial the
parties called upon me to adjudicate on the special plea first.
[4]
I find it apposite to quote (verbatim) the special plea of the
defendant, as it stood
at the time:
“
1.
Special
Plea: Compromise of Claim A:
1.1
The plaintiff instituted two claims against the defendant, namely
Claim A for payment of R 4 701 134.00
and Claim B for payment of R
999 702.76.
1.2
Claim A is in respect of alleged contractual damages suffered by the
plaintiff on the Sasol to Heilbron
Road rehabilitation project,
commonly referred to between the parties as “the
Heilbron-project” and claim B is in respect
of alleged
contractual damages suffered by the plaintiff on the Twickenham to
Polokwane Road Rehabilitation Project, commonly referred
to as “the
Limpopo Project”.
1.3 On
29 August 2018 at Vereeniging, the defendant represented by Mr Zaid
Dockrat and the plaintiff represented
by Mr Drake Ahadji concluded a
written settlement agreement in respect of the plaintiff’s
claim against the defendant on
the Heilbron-project. A copy of the
written agreement is appended marked “
ZD1”
. The
express terms, alternatively tacit terms of the settlement agreement
are:
1.3.1
Subject to the Defendant making payment to the Plaintiff of R 600
000-00 on 30 August
2018 in respect of the Limpopo project:
1..3.1.1
The dispute between the parties in relation to purchase
orders number
23054 and 2745 on the Heilbron-project will be resolved subject to
the defendant handing over ownership of a 1000
l Diesel Bowser
trailer to the plaintif;
1.3.1.2
Defendant to transport the plaintiff’s yellow
plant located at
the Heilbron borrow pit to the plaintiff’s premises in
Bloemfontein, on the plaintiff’s written request
and at the
defendant’s cost, subject to the availability of the
defendant’s lowbed truck; and
1.3.1.3
The balance of the moneys due by the defendant to
the plaintiff in
respect of the Limpopo-project will be paid at a later date, still to
be agreed.
1.4
Defendant complied with all the provisions of the settlement
agreement
1.6
(
sic)
In the circumstances the dispute between the plaintiff
and the defendant in respect of claim A –
the Heilbron project – is settled.”
[5]
Annexure “ZD1” is a letter prepared by Sedtrade’s
legal advisor,
signed by Mr Dockrat and send to Mr Ahadji via
electronic mail communication (email) for his signature. Of
importance are the following
paragraphs:
“
3. I record below
resolution of the matters in dispute.
4. Subject to Sedtrade
making payment to Maluti in the sum of R 600 000.00 in respect of the
Limpopo Project by tomorrow morning,
30 August 2018:
4.1
the dispute relating to Heilbron (Purchase Order Numbers 23054 and
27475) will be resolved
subject to Sedtrade handing-over ownership of
a 1000 liter (sic) diesel bowser trailer to Maluti;
4.2
Sedtrade will transport Maluti’s last yellow plant located at
the Heilbron borrow
pit and deliver it to Maluti’s premises in
Bloemfontein, at Sedtrade’s cost. The date of delivery will be
at Maluti’s
written request, and according to the availability
of Sedtrade’s low-bed truck;
4.3
The balance of the monies due to Maluti by Sedtrade in respect of the
Limpopo Project will
be paid at a later date, still to be agreed.
5.
The above is in full and final settlement of the Heilbron dispute.”
Paragraph 5 was scratched
through by Mr Ahadji, signalled at the end of that sentence, signed
at the bottom of the document and
duly returned.
[6]
Subsequent to the testimony of Mr Dockrat (to be dealt with herein
below) the defendant, without
objection thereto, filed its amended
special plea. Paragraph 1.3 of the initial special plea was
substituted with the following:
“
1.3
On or about 29 August 2018 at Vereeniging, Mr Zaid Dockrat
representing the Defendant and Mr Drake Ahadji
representing the
Plaintiff, both duly authorised, concluded an oral settlement
agreement in respect of the Plaintiff’s claim
against the
Defendant on the Heilbron project. The express, alternatively
implied, in the further alternative tacit terms of this
agreement
were:”
The remainder of the
special plea as quoted in paragraph 4 remained the same.
[7]
The plaintiff replied to the special plea and admitted the content of
the letter dated
29 August 2018 (the “letter”) attached
to defendant’s plea. It denied the said letter to constitute a
settlement
of all defendant’s indebtedness to plaintiff and
denied that defendant performed in terms thereof. It is averred that
the
payment and delivery of the diesel bowser would have settled part
of plaintiff’s claim against the defendant but not all claims
and not plaintiff’s claim for damages against defendant for the
Heilbron project. It is pleaded that the agreement was not
in full
and final settlement in respect to all claims between the parties and
that it did not settle the Heilbron project nor the
Limpopo project.
[8]
To prove its special plea of a compromise the defendant called Mr
Dockrat (CEO) and
Mr Manilall, the projects manager of the Heilbron
project at the time.
[9]
The essence of Mr Dockrat’s testimony in the end entailed that
he was not present
during the meeting when the averred settlement was
concluded between the parties, arriving only at the end of the
meeting when
he was informed by Mr Valente of such a settlement. He
“thought the matter had been settled as we shook hands on it”.
According to him after having shaken hands with Mr Ahadji, Mr Ahadji
complained to him about Maluti’s diesel bowser which
was
damaged during public unrest at the time. The witness was referred to
an email dated 29 August 2018 which on face value was
sent by
Sedtrade’s legal advisor Mr Kathrada at 18h40 to the plaintiff.
The mail refers to the signed letter referred to
in his (unamended)
special plea and states: “With regard to you deleting paragraph
5, I cannot recommend to Zaid to make
payment of the R 600k as
Sedtrade will be at risk in respect of Heilbron as it’s not
settled”. Despite the aforementioned
advice, he however decided
to effect such payment the following day as he wanted to honour the
agreement.
[10]
According to Mr Manilall’s testimony the meeting dealt
with a dispute between the
parties relating to the quality of the
crushed stone provided by Maluti. During cross-examination he
conceded that he was unable
to recall whether the main issue
discussed at the meeting related to a dispute on payment to be made
in respect of the Limpopo
project. He could likewise not deny that Mr
Ahadji said during the meeting that he did not agree that the
settlement was a final
settlement between the parties.
[11]
Mr Ahaji testified that the plant hire site was established in March
2018 and Maluti’s
equipment remained on the site for a period
of six months. He was the one who requested the meeting because of
Sedtrade’s
lack of payment and arrears on the Limpopo project
and the issue of Maluti’s equipment being at risk (and in fact
damaged
in respect of the diesel bowser that was burnt down) during a
public unrest. Mr Katrada and Mr Valente It was also agreed that
Sedtrade would return Maluti’s equipment and replace the diesel
bowser. him that Sedtrade would pay R 600 000-00 in respect
of the
Limpopo arrears. Although he agreed therewith, it was most
certainly not a final settlement as Mr Valente raised the
issue that
Maluti had to be compensated for the Heilbron project. He had
invoiced Sedtrade on the Heilbron project and was simply
not prepared
to merely write off the outstanding amounts due. According to him
Maluti’s equipment tampered with and damaged
had to be taken to
Bloemfontein to be repaired. It was agreed that Sedtrade will replace
the damaged diesel bowser that was burned
down during the unrest.
[12]
It is common cause that the defendant alleges a compromise
(transactio). The defendant therefore
avers a substantive contract
which exists independently of the causa that gave rise to the
compromise. The onus to prove on a balance
of probabilities a
compromise is on the party who raises same –
in casu
the
defendant.
See in general
Gollach
and & Gomperts (1967) (Pty) ltd v Universal Mills &
Produce Co (Pty) Ltd
[1]
.
Recently in
The
Road Accident Fund v Taylor and other matters
[2]
it
was held that:
“
The
essence of a compromise (
transactio
)
is the final settlement of disputed or uncertain rights or
obligations by agreement. Save to the extent that the compromise
provides
otherwise, it extinguishes the disputed rights or
obligations.”
[3]
[13]
As stated in paragraphs 9 and 10 above, Mr Dockrat were not present
during the negotiations and
the alleged settlement, and only arrived
at the conclusion of the meeting. Likewise, Mr Manilall could not
confirm a final settlement
and the terms thereof. In my view it has
to be accepted that on 29 August 2018 Plaintiff before signing the
letter, deleted paragraph
5 thereof. On receiving the signed document
with the deleted paragraph 5, defendant’s legal advisor himself
wrote an email
to plaintiff stating that he could not recommend to
the defendant to make payment of the R 600 000-00 as defendant would
be at
risk in respect of Heilbron “as it is not settled”.
As mentioned, defendant ultimately did not rely on the disputed
written agreement. On the contrary, it expressly abandoned it in the
amended special plea and relied on an oral settlement agreement
with
the terms as stated. Mr Dokrat testified that he only arrived at the
end of the meeting when he was told that there was a
settlement. His
evidence most definitely did not prove an oral compromise as averred
in the amended special plea, let alone what
the terms of such
transaction were to be. The onus was on the defendant to convince me
of the alleged compromise and the terms
thereof which was denied by
plaintiff in testimony.
[14]
The result is that I am not convinced on probabilities that the
parties settled and/or compromised
on the basis and terms as set out
in the amended special plea. Accordingly, the following order is
made:
The defendant’s
special plea of a compromise in respect of Claim A is
dismissed with costs.
C
REINDERS, J
On
behalf of the plaintiff
Adv
PJ Zietsman SC
Instructed
by:
Noordmans
Attorneys
BLOEMFONTEIN
On
behalf of the defendant:
Adv S
Grobler SC
Instructed
by:
Raees
Chothia Attorneys
c/o
Rossouws Attorneys
BLOEMFONTEIN
[1]
1978 (1) SA 914 (A).
[2]
(11361140/2021)
[2023] ZASCA 64
(8 May 2023).
[3]
At
para [36] thereof.