Endecon Ubuntu/Thutse Civils Joint Venture v Water (346/2019P) [2021] ZAKZPHC 32 (9 June 2021)

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[2021] ZAKZPHC 32
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Endecon Ubuntu/Thutse Civils Joint Venture v Water (346/2019P) [2021] ZAKZPHC 32 (9 June 2021)

IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
Not
Reportable
Case
No: 346/2019P
In
the matter between:
ENDECON
UBUNTU/
THUTSE
CIVILS JOINT VENTURE

PLAINTIFF
and
MHLATUZE
WATER

DEFENDANT
ORDER
The
defendant is to pay the plaintiff:
(a)
The amount of R1 526 745.00.
(b)     Interest on the aforesaid
amount
tempore morae
from 22 September 2015 to date of
payment.
(c)     Costs of suit, such costs to
include the cost of senior counsel.
JUDGMENT
Mathenjwa
AJ
Introduction
[1]
This matter, firstly, came before the Honourable Judge Bezuidenhout
who considered and dismissed all the
special pleas raised by the
defendant against the plaintiff’s claim. Subsequently the defendant
conceded liability and the issue
came before me only for the
determination of the amount for the work done by the plaintiff in
terms of the written agreement between
the parties.
[2]
The plaintiff performed professional services relating to a Dukuduku
Resettlement Water Project and thereafter
delivered a tax invoice for
the amount of R1 526 745.00 for the work done for the defendant on 9
September 2015. Despite several
demands the defendant failed to pay
the plaintiff and eventually the plaintiff issued summons, which was
served on the defendant
on 26 January 2019.
[3]
Before this court the plaintiff was represented by Mr Troskie SC and
the defendant by Mr Kuboni, who also,
respectively, represented the
parties before Bezuidenhout J on the issue of special pleas.
[4]
The plaintiff called only one witness, Mr Strydom, the director of
the plaintiff who testified that: The
defendant appointed the
plaintiff for professional services bid for Dukuduku Resettlement
Project – Water Supply Scheme for an
amount of R4 573 110.00, per
letter dated 2 December 2013. The plaintiff performed the work and
thereafter provided the defendant
with an invoice dated 12 March 2015
for the work done, for the amount of R2 022 309.84. The defendant
scrutinised the invoice, communicated
with the plaintiff and
indicated that the item for environmental impact assessment on the
invoice should be removed because no work
was done in respect of this
item.
[5]
The plaintiff conceded, agreed to remove the fees charged for this
item. The plaintiff resubmitted an
amended invoice, dated 9 September
2015, for the total amount of R1 526 745.00. This invoice records
that the plaintiff has performed
professional engineering service
for: Professional engineering, the calculation thereof was attached
as appendix ‘A’, on the
invoice, survey and construction
monitoring fees.
[6]
On 7 October 2016 the employee of the defendant, who is the project
manager, addressed an email to the
plaintiff and stated that the
department has finally agreed to pay for this invoice and budget for
this is available.
[7]
Mr Strydom was cross examined by the defendant’s counsel. The cross
examination was mainly based on
documentary evidence. The plaintiff
closed its case and the defendant closed its case without calling any
witnesses.
[8]
In assessing the evidence on the quantum, I consider that the
plaintiff relied on documents and the evidence
of one witness, whose
evidence was not contradicted. What has come out clearly in this case
is that the defendant is not able to
state which item from those
listed by the plaintiff in respect of the work done is disputed. I
consider that the defendant was able
to inform the plaintiff to
remove an item for environmental impact for the work which was not
done on the first invoice dated 12
March 2015, that was delivered by
the plaintiff; that the work done and amount thereof for the amended
invoice dated 9 September
2015, was not disputed by the defendant,
but the defendant informed the plaintiff that it was processing this
invoice for payment.
[9]
If the defendant’s defence against plaintiff’s claim was real,
the defendant could be able to show
that the plaintiff, was not
entitled to charge for any of the items listed, if the work in
respect of that item was not done. The
work was done on the
defendant’s site, therefore, the defendant could easily have
conducted an inspection on the site and indicated
what work was not
done from the work that the plaintiff claimed to have done. Based on
these facts I find that on the probabilities,
the plaintiff has
proved that it is entitled to the amount claimed in the invoice.
[10]
Accordingly the following order is made:
The
defendant is to pay the plaintiff:
(a)
The amount of R1 526 745.00.
(b)
Interest on the aforesaid amount
tempore
morae
from 22
September 2015 to date of payment.
(c)
Costs of suit, such costs to include the cost of senior counsel.
_____________________
MATHENJWA AJ
DATE
OF HEARING     :
31 May 2021
DATE
OF JUDGMENT  :        09 June
2021
FOR
THE APPLICANT :         Adv
AJ Troskie SC
Instructed
by Mark Drummond Attorneys
Locally
represented by Randles Attorneys
FOR
THE RESPONDENT:      Adv W S Kuboni
Instructed
by Mdledle Incorporated