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[2019] ZAGPPHC 108
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Big Eye Investment 210 (Pty) Ltd v Gert Tack Staal Konstruksie CC (30627/2014) [2019] ZAGPPHC 108 (8 January 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA DIVISION,)
(1)
REPORTABLE:
YES
/NO.
(2)
OF
INTEREST TO OTHER JUDGES:
YES
/NO.
(3)
REVISED.
CASE
NO: 30627 / 2014
8/1/2019
In
the matter between:
BIG
EYE INVESTMENT 210 (PTY)
LTD
Plaintiff
and
GERT
TACK STAAL KONSTRUKSIE CC
Defendant
JUDGMENT
[1]
There
are Practice Manuals issued by the Judge Presidents in every
division of the High Court in the country. The purpose of
these
practice directives is to regulate how the Rules of Court are applied
in the daily functioning of the courts in each division.
Although not
elevated to Rules, it informs practitioners how matters are dealt
with in a specific division.
[2]
The
purpose of the practice manual is to enhance the proper functioning
of the courts on a daily basis and to improve service delivery
to the
public at large.
[3]
It
is a fact that the work load, for different reasons, differ in each
division and this is one of the underlying reasons why the
Judge
President in each division, after consideration, issues various
directives from time to time to provide for changing circumstances
in
the specific division.
[4]
With
specific reference to civil trials in this division, the practice
manual in this division provides for trials "of long
duration"
and "special trials" other than ordinary trials. This
distinction has regard to the estimated du
ration of the trials.
[7]
In
view of the above and what follow below, there are aspects I have to
deal with before I deal with the merits/evidence of the
matter. At
the pre-trial held on 4 September 2016 the parties minuted the
duration of the trial to be 4 to 5 days. In accordance
with the
Practice Directive of this division, the parties must hold a
pre-trial setting out the normal aspects with regard to the
dispute(s) between the parties, but also indicate the estimated
duration of the trial. This is of importance to enable the Deputy
Judge President to plan the optimal functioning of the Civil Trial
Roll. Paragraph 6.8 of the Practice Directive sets out what
is
referred to as a "special trial " and a "trial of long
duration".
[8]
A
trial of long duration is where a party is of the view that the trial
will last less than 10 days but longer than five days while
a special
trial is estimated to be more than 10 days. When estimated to be a
trial of long duration, the Practice Directive imposes
an obligation
on a party to deliver, at least 10 days before the trial date, a
letter to the office of the Deputy Judge President
setting out:
2.1
the
names of the parties to the trial and the case number;
2.2
the
nature of the dispute;
2.3
the
estimate of the probable duration of the trial; and
2.4
that
a pre-trial conference has been held, a copy of the relevant minute
must
be
annexed to the letter (my emphasis).
[9]
No
such letter was delivered and at the roll call on 4 September 2017 it
was not brought to the attention of Pretorius J (calling
the roll)
that the du ration would exceed the normal 5 days for an
ordinary allocation. The note made on the court file by
the clerk
after allocation indicates that the parties informed Pretorius J that
the estimated duration is 4 to 5 days. The clerk
at roll call marked
the matter as "4-5 days" on the file and it was then
allocated for trial in this court.
[10]
When counsel for both the plaintiff and defendant attended my
chambers after allocation before going
to court, I asked counsel
about the probable duration and the number of witnesses each party
intends calling. The only reason for
this was that my term of acting
was to end on Friday 8 September 2017 and that a part heard
matter would be rather inconvenient
for all. I informed counsel that
in the event of a part heard matter, the matter will only proceed
during a future recess most
probable during the December 2017 -
January 2018 recess.
[11]
Mr
Alli, counsel for the plaintiff, when requested on the number of
witnesses he intends calling, indicated that he intends calling
four
(4) witnesses and Mr Shepherd on behalf of the defendant indicated
that he intended calling two (2) witnesses. On this postulation
all
were satisfied that the matter could be finalized in 4 to 5 days.
[12]
The
matter proceeded and already on Wednesday the 6
th
of September it was clear that the matter will not be finalized in
five days. When inquiring from Mr Alli how many witnesses he
still
intends calling he then indicated that he intends to call another 4-5
witnesses, in total nine witnesses on be half
of the plaintiff.
This was clearly not what was said to Pretorius J at roll call on
Monday or to me in chambers. I am hesitant
to conclude that Mr Alli
knew all along that he intended calling nine witnesses. Although I
have no direct evidence it is clear
that this was probably done to
circumvent the Practice Directive in respect of trials of long
duration.
[13]
The
matter ended up part heard on Friday 8 September 2017 and only
continued during the last week of recess from 22 to 25 January
2018.
I am reluctant to find but this conduct borders on unbecoming
conduct.
[14]
When
the trial resumed on 22 January 2018, Mr Alli informed the court that
he intends handing up the Plaintiffs Notice in terms
of Rule 36(9)(a)
and (b) for the expert witness, Mr J Weinmann, a structural engineer
the plaintiff intended to call. Although
Mr Shepherd did not object
thereto, it is further indicative that the matter, from day one, was
not trial ready in the normal course
and that it was a trial of long
duration. In view of the time already engaged on the matter, I
decided to continue but I have to
voice my dissatisfaction on the
manner in which the Practice Directive was circumvented and that the
trial was not trial ready
when called on 4 September 2017.
[15]
After
evidence was finalized, I requested counsel to have the record
transcribed to assist me when finalizing judgment, the last
portion
of the re cord filed on 15 May 2018. I also requested written
heads of arguments and due to inter alia illness of
Mr Shepherd, the
defendant's heads were only filed on 4 June 2018. The typed
transcript exceeded 740 pages.
[16]
The
parties agreed to argue the matter on 29 June 2018 after the filing
of the plaintiffs written reply to the defendant's heads
of argument.
WITNESSES
CALLED:
[17]
The
plaintiff called the following witnesses:
Barend Jacobus
Van Niekerk;
Arnold
Tshingano;
Pieter
Andries Du Preez;
Prahdeep
Dahmee;
Petrus
Jacobus Myburgh;
Thsabelo
Gladwin Mahlangu;
Bernard
Louis Conradie;
Juan-Louis
Venter; and
Johan
Weinmann.
[18]
The defendant called the following witnesses:
Jaques
Henry Smith; and
Andre
Fullard.
[19]
I
do not intend repeating each witness's evidence in full but will
refer to the relevant aspects thereof as I progress with the
judgment
below. I will also when dealing with a specific witnesses's evidence,
compare it with the equivalent expert's evidence
on behalf of the
defendant.
CLAIM:
THE AGREEMENT:
[20]
The
plaintiffs claim is based on a partly written, partly oral agreement
be tween the parties whereby the plaintiff purchased
ready-mix
concrete from the defendant. The agreement was entered into on 13
February 2013.
[21]
The plaintiff was engaged in the construction of a river bridge and
reached an agreement with the defendant
to supply a certain concrete
mix as per specification.
21.1
The
plaintiff alleged placing certain orders for ready-mix concrete for
the period of March 2013 to 15 May 2013 as set out in par
7.1 to 7.5
of the particulars of claim.
21.2
Three
orders, as in par 7.2; 7.3 and 7.5, for concrete of 25
mpa
and
in par 7.1 & 7.4 for concrete of 15
mpa,
were
placed by the plaintiff at the defendant.
Mpa
refers
to the concrete mix to withstand pressures of25 and 15
megapascals
per cubic metre
respectively.
The different required strength of the concrete was because of the
specific use thereof in the construction of the
bridge. The required
strength for the base of the bridge was 25 mpa.
21.3
It
was alleged in the plaintiff's particulars of claim that one Zodwa
Ntuli placed the orders on behalf of the plaintiff. Tshingano
however
testified that he placed the orders with Ernest Grater of the
defendant who accepted the orders on behalf of the defendant.
Zodwa
Ntuli was not called to testify.
PLAINTIFF'S
WITNESSES:
BAREND
VAN NIEKERK:
[22]
Mr
van Niekerk's evidence in brief was that he is the laboratory manager
for the Civil Engineering Materials Laboratory (referred
to as"
Matrolab). Mr Shepherd indicated that the witnesses's curriculum
vitae, experience and qualifications was not in dispute.
[23]
The
essence of his evidence was that he was requested by the plaintiff to
have certain concrete samples (known as "cores"
) tested.
He was not pre sent when the cores were sampled at the
construction site (drilled and delivered to the laboratory)
by
Douglas , a technician from the laboratory. Although hearsay, he
testified that Douglas went to drill the cores on the information
supplied by another person. None of these two testified.
[24]
Van
Niekerk conceded that no one from Matrolab was present when the
concrete was casted. He conceded that he could not confirm that
the
cas ting was done properly. He also conceded during cross examination
that if the defendant's expert, Mr Smith's version was
that if
certain deviations in the density of the concrete was present, it
would indicate that there was a problem in the way the
concrete was
compacted during the casting thereof. This would result in to much
air left in the concrete (air bubbles or voids)
resulting in a lower
compressive strength of the concrete.
[25]
Van
Niekerk also testified that the laboratory was only mandated to
perform a compressor test on the cores and not to fully analise
the
concrete. He testified that the actual testing in the laboratory is
done by a technician who compiles a report on the data
received from
the testing. Van Niekerk only analises the report. Annetjie Verwey
entered all the data and completed the report.
After an objection as
to hearsay was raised, Mr Alli indicated that Verwey will come and
testify, but this did not happen.
[26]
No
density testing was done. In view of these concessions, there has to
be doubt as to the result of the testing done by Martolab.
[27]
Van
Niekerk agreed with calculations done by Smith (expert on behalf of
the defendant) that certain variations/voids of up to 11,2
% was
found in the density of the concrete mixture indicating that there
was a problem with the compacting after the casting thereof.
This was
later put to Dhanee that such variance was indicative of large
quantities of air locked in the concrete negatively affecting
the
required strength of the concrete. Dhanee elected not to comment
thereon. The effect of the presence of these voids on the
quality/strength and test results of concrete are not dealt with at
all. These voids were also visible on the photo copies handed
in.
See
below when the voids are further discussed.
ARNOLD
TSINGANO:
[28]
Mr
Tsingano is a qualified Quantity Surveyor employed by the plaintiff.
His expertise and CV is not disputed by the defendant.
[29]
He
testified that he acted on behalf of the plaintiff to conclude the
agreement with the defendant. The agreement as such is not
in dispute
although certain issues were canvassed. His evidence was
predominantly about the calculation of the damages suffered
and that
he was on site for most of the time of the project. He is however not
an engineer.
[30]
His evidence differed from the particulars of claim where it was
stated that one Zodwa Ntuli placed
the orders with the defendant.
Tsingano testified he placed the orders and Zodwa Ntuli was never
called to testify.
[31]
Tsingano
said much about the rejection of the mixed concrete designs but in my
view that does not have much to do with the dispute
between the
parties. That rejection did not effect the orders made by the
plaintiff as to the concrete mix delivered. The five
(5) orders as in
annexures "C-G" were for 15 mpa and 25 mpa mixes. The
rejected mix design did not alter the agreement
between the parties.
[32]
Mr
Alli conceded that Tsingano was not an expert to give technical
evidence on the strengths of the concrete. Tsingano was called
to
give evidence on the calculation of the damages resulting from the
alleged breach by the defendant. Tshingano can not take it
further as
to the dispute regarding the concrete. If necessary, I will deal with
that aspect below if the court finds that the
defendant indeed
breached the agreement. In my view the question about alleged damages
will only become relevant once it is clear
that the defendant was
indeed in breach of its obligations to supply a specific strength of
concrete.
PIETER
ANDRIES DU PREEZ:
[33]
He
was the resident engineer on the site of the construction. Like the
other witnesses, his expertise is not disputed.
[34]
He
explained the duties of a resident engineer to ensure that the
quality of the work done at the construction site is done according
to the specifications and drawings of the project and to keep in mind
the budget of the project.
[35]
It
is the duty of the contractor to provide the resident engineer proof
that the work is done accordingly. He will conduct certain
tests on
the steel reinforcement but the actual testing of the concrete is
done by a laboratory. The results of the testing is
forwarded to him
by the contractor. Al though he alleged that he was present most
of the time when the ready mix concrete
was delivered, he later
contradicted himself on this.
[36]
Du
Preez testified that he was present 80% of the time when the concrete
was delivered but conceded during cross-examination that
the majority
of concrete was delivered during the night and he left the site
normally at 17:00. It is thus clear that he was incorrect
in this
regard. He also con ceded that because the deliveries were
mostly at night, he cannot comment whether the required
vibration/compacting of the concrete, when delivered and poured was
done proper. His evidence in chief was that the compacting
of the
poured concrete was of utmost importance, but that he was absent when
the bulk was poured and compacted.
[37]
Du
Preez agreed with the opinion of Jacques Smith (expert to be called
on behalf of the defendant) that the compacting of poured
concrete is
very important to ensure that as least as possible air remains in the
concrete during the curing/compacting thereof
because if the air is
not re moved, the air weakens the strength of the concrete.
These are the voids referred to in the various
laboratory test
results. Du Preez was adamant that the vibrating/compacting was the
duty of the contractor.
[38]
Du
Preez referred to
slump
testing
done
by the contractor and himself of the concrete when delivered to
ensure that the concrete was workable on arrival. This is done
because concrete can
sag
during
transportation thereof and this test is to determine the suitability/
work ability and the consistency of the concrete before
it is poured.
All the delivered concrete (15 mpa and 25 mpa) passed this slump
test. He differs from Mahlangu on this aspect as
Mahlangu testified
that water was added to the 15
mpa.
[38]
Du
Preez stated that as engineer his duty is to oversee and not to
manage the contractor's work for him. He also did not prepare
the
samples of concrete to be tested by the laboratories. He, on
receiving the test results, only compare it. He also stated that
he
is not a concrete specialist.
[39]
Du
Preez rated the plaintiff as low as four (4) out often (10) on skill
and knowledge. See joint minute dd 18 November 2016
(Exhibit
"A").
This
was the opinion of both the experts Du Preez and Smith. He based this
on inter alia that he did not receive any technical assistance
from
the plaintiff how to resolve the issue.
[40]
Du
Preez also said that the plaintiff is not the type of contractor he
would put on a big project because they make mistakes and
gave the
plaintiff an initial rating of four out of ten. He only increased
this rating because the plaintiff later completed the
project. This
new rating seems not to be done on any technical skills improvement
or other related knowledge. This is rather significant
when the
plaintiffs own expert questions the skill and knowledge of the
plaintiff. This obvious raises concerns as to the performance
of the
plaintiff during construction.
[41]
Du
Preez together with the other engineers decided to demolish the base
without any consideration of a full load performance test
or
strengthening the existing base despite a request from the
contractor. This is evident from the site meeting on the 25
th
of June 2013. No proper costing was done to compare such steps as
envisaged in
SANS
878-2004 (Exhibit
–
F1)
page
16. There is no indication that the way suggested in SANS could not
be explored before demolishing the structure. This should
be kept in
mind when deciding whether demolishing was the best route under the
prevailing circumstances. Tsingano's version was
that no costing was
done to consider the alternatives to correct the problem. This in my
view casts doubt whether the decision
to demolish was the best
possible decision under the prevailing circumstances. See below where
the
SANS
and COLTA
requirements/prescripts
with regard to testing, are compared.
[42]
Du
Preez testified that he was not always on site and in particular when
the bulk of the concrete was delivered at night , keeping
in mind
that no expert evidence was tendered on behalf of the plaintiff
regarding the cu ring and compacting of the concrete,
the
question arises whether the workmanship by the plaintiff was of such
to exclude to possibility that this contributed to the
problem with
the concrete.
[43]
Du
Preez also testified with regard to the costing done and had certain
reservations with regard to the Bill of Quantity (BOQ).
This impacts
on the damages portion of the claim and will be dealt with below if
necessary. He also found certain costs in the
BOQ to be extravagant.
This questions the issue of the quantum of the plaintiff's claim to
damages.
PRADHEEP
DHANEE:
[44]
Mr
Dhanee was the project/consulting engineer in relation to the bridge
during 2013. He was involved in the project administration
and
represented the plaintiff in terms of budget expenditure, programming
and cash flow.
[45]
Dhanee
testified that after consultation with Du Preez and considering the
tests results form the laboratories with regard to the
cubes and
cores, they took the decision to demolish the structure. Although he
testified that demolishing the structure would cost
extra money, he
like Du Preeez gave no comparison between the costs resulting from
demolition compared with alternatives as in
the SANS of the National
Standards 878 regarding ready mix products; in particular as to
the costing doing a full-scale performance
test or possibly
strengthening the structure.
[46]
He
testified that consideration was given as to a possible negative
effect upon the river flow, the hydrology of the river, erosion
and
increase in the road level should any alternative be done. He however
did not give any specific direct evidence in this regard.
His version
amounted to mere speculation with no factual basis at all. No costing
was done, no environmental impact study was done
to determine any
negative impact should alter native measures be taken other the
demolition.
[47]
In
view of the remarks made by Du Preez about the BOQ, the mitigation of
damages aspect and the calculation of the alleged damages
suffered by
the plaintiff is in doubt. This aspect in rather cloudy in view of
the evidence tendered. I will comment below in this
regard with
reference to the onus of proof.
[48]
The
failure to conduct a full-scale pressure test or consider the
possible strengthening of the structure when deciding to demolish
raises the question whether they properly applied their minds in
deciding to demolish. The quantity for concrete in the BOQ (240
cubic
meter vs 90 cubic meter used) is far more than what was used. Du
Preez and Dhanee differ in this regard. They have different
views as
to certain costs of the engineer as well. This raises doubt as to the
correctness of the BOQ.
EVIDENCE
ON THE INVOICE FOR STEELWORKS:
[49]
There
was a concession by Mr Shepherd with regard to the invoice rendered
for the amount of R 142 118,31 with regard to certain
steel supplied
and payed for, on condition that the merits of the plaintiffs claim
remained in dispute. The concession pertained
to the reasonableness
of this portion of a possible claim.
PETRUS
FRANCIOS MYBURGH:
[50]
Mr
Myburgh is an expert in drilling, blasting and demolition of
constructions above and below surface. He has almost 30 years of
experience and his expertise was not placed into dispute by Mr
Shepherd.
[51]
He testified that he was employed to perform the demolition (blasting
off) of the structure by the
plaintiff. He gave a version of the
demolition under took and confirmed the invoice delivered to the
plaintiff therefore in
the amount of R 31 920,00 (as quoted for by
himself prior to the demolition).
[52]
Although he only performed the blasting and not the rubble removal
there after, he was requested
to comment on the items in the BOQ
with regard to the reasonableness therefore. He did not perform the
rubble removal but it transpired
that it was done by the plaintiff
itself using its own machinery and labour. Myburgh was not present
when the rubble removal took
place, has no knowledge of the size of
the excavator used or the number of trucks used. His comments were
that the itemized costs
in the BOQ is more or less in range. Again,
the value of this evidence with regard to possible calculation of
damages seems rather
vague and general.
SEABELO
GLADWIN MAHLANGU:
[53]
Mr Mahlangu is a civil engineer by profession and was employed as the
foreman for the project. His
duty was to oversee the construction of
the bridge.
[54]
As foreman on site persons coming onto site has to report to him, he
was aware that two (2) ready-mix
concrete suppliers delivered
concrete for the blindings of the bridge (Pierdal and Gert Tack-the
defendant). The re quired
mix design for the blindings were 15
mpa and for the base 25mpa was required. The defendant supplied the
concrete for the base.
[55]
Mahlangu's
evidence was largely factual that he as the site foreman was present
when the concrete deliveries were made and that
he signed for all
deliveries. During cross-examination he changed this aspect and it is
clear that one Sonnyboy signed most of
the delivery notes. He however
stated that he was present on site busy with the pouring of concrete
when the other deliveries took
place.
[56]
He
conducted the slump tests on the deliveries and that water was added
to the 15 mpa concrete to pass the slump test. No explanation
was
tendered why the 15 mpa concrete needed water added to pass the slump
test. Du Preez did not mention this during his evidence.
[57]
He
prepared the cores for the laboratory testing and described how he
compacted it to take out
"some
of the voids".
He
then tried to amplify this by stating it should have no voids in
between. It is not clear whether there were any voids left after
compacting it with a rod. No further evidence was led as to how the
cast concrete was compacted to ensure no voids of significance
or air
were present after compacting was done. In view of the evidence above
by Van Niekerk and what Smith was to testify, there
is doubt as to
whether the compacting was indeed done correctly. The concession by
Van Niekerk as to the skill and knowledge of
the plaintiff cannot be
overlooked.
[58]
Mahlangu
prepared all the cubes for testing and although his version of how it
was done was not destroyed during cross-examination,
no evidence of
the process of the compacting of the concrete was tendered. Nothing
was said about how the process works to ensure
that no voids (air)
are left behind in the compacted concrete. The version of Van Niekerk
and Smith as to the voids (air) in the
samples should be taken into
account when deciding whether the version of Mahlangu on the
compacting of the poured concrete is
sufficient to find that it was
done properly.
[59]
No
evidence was presented by Sonnyboy who received the bulk of the
concrete, in particular water added to the 15 mpa concrete and
the
workability of the concrete (slumpness thereof) at delivery.
BERNARD
CONRADIE:
[60]
Conradie
is the owner of Civils Engineering Materials Laboratory (LTG). He has
approximately 14 years experience in the testing
of concrete. He
testified that both the cube and core tests on the samples from the
construction site were tested at the facility.
He conducted the tests
according to the
SANS
test method 5863.
He
was requested by the plaintiff to con duct the necessary test.
See exhibit
"H"
extract
form
SANS.
[61]
He
received the cubes as prepared by the plaintiff's personnel whilst
one of his technicians did the on site drilling to retrieve
the cores
for testing. Although hearsay evidence, the specific drilling
position was indicated to the technician by the on site
personnel of
the plaintiff. He could not testify on the correct position where the
cores were extracted form.
[62]
The
technician, Juan Louis Venter, retrieved the cores. See his evidence
below. Conradie relied on the information he received from
Venter
when drawing the plan as to the position of the extracted cores.
[63]
Conradie
testified how he performed the test. He was only requested to conduct
a compression test and not to analyze the sample
of to perform a
density test. He also only tested the cubes delivered to his
facility. He did not request a specific minimum number
of cubes for
the testing.
[64]
The
results of the tests conducted on the cubes indicated that the
material was of inadequate strength below the 25 mpa requirement
as
per the de sign of the bridge. The core tests's results were
similar.
[65]
Various
aspects in Conradie's evidence are however questionable for rather
obvious reasons. Although he professes to have 14 years
of experience
in concrete testing, the following aspects are mentioned:
-
his facility is not accredited. This only came to light during
cross-examination. He then said to
gain accreditation you, probably
the facility/laboratory, undergo a thorough process to become
accredited. No explanation for non-accreditation
was given.
-
to become accredited, the facility has to be assessed via a
SANAS
assessor to determine whether the facility has the technical
skills to do testing, that all machinery is properly calibrated, and
that the facility is in order to be accredited. Nothing was placed
before the court to assure that the facility and personnel all
complied with the required standards.
-
although Conradie said all testing was done according to
SANS test
method 5863
it was clear from his evidence during
cross-examination he did not comply with the required test prescribed
in the following:
-
the
number of cubes tested were insufficient; SANS prescribes that at
least three (3) cubes be tested and results compares- Conradie
only
tested one (1) cube at 7 days and only two (2) cubes at 28 days;
-
SANS
prescribes that if a variance of more than 15% results from the
specific testing, an investigation must be done. No investigation
was
done by Conradie and no reason was given by him why it was not done
as pre scribed.
-
SANS
5863 (par 14.3.1.4) is clear that at least three (3) cubes shall be
tested at 28 days to obtain a valid result. Testing of
cubes at other
ages
may
be
tested for information. It is clear that when comparing results to
determine whether a variance of 15% exists, cubes of different
ages
cannot be compared with one another. No acceptable explanation was
given for this deviation from the prescribed test in SANS.
-
SANS
further prescribes that if test results fail to meet the accepted
criteria, an assessment of the stress level in the structure
shall
be
carried out. This was never done.
-
the
variance of 12.9 mpa at 14 days to 21.1 & 21.6 mpa at 28 days may
well be indicative as to why the results on different
days are
incomparable and why SANS prescribes 28 days for testing. No
acceptable explanation was given why such a huge variance
can occur.
Although not explained, it is rather interesting that the strength
increased significantly in 14 days.
-
Conradie
never did a calculation to determine whether the variance was more
than 15% and did not follow SANS thereafter.
-
Conradie
could not explain why and how test results unrelated to this matter
got mixed up in the papers.
-
of
significant importance in Conradie' s evidence during
cross-examination was
his
concession
that, as testified by Mahlangu, that the curing process was not
proper if the cube moulds are removed from the water
within two to
three hours after preparing the moulds. This may confirm Du Preez' s
poor rating of the plaintiff as to skill and
knowledge in general.
Mahlangu did not refer to a curing tank as expected by Conradie for
proper curing.
-
according
to Smith the making of the cubes were not according to the accepted
standard with regard to the insufficient quantity
of samples and the
technique and lack of accepted equipment (moulds and curing tank)
when making the cubes.
[66]
In my view the version of Conradie is not helpful for the plaintiffs
case. The reliability of the test
results in view of above in
questionable. See below where the aspect of the onus is dealt with as
to the reliability of the insufficient
number of cubes and the
overall onus with regard to the proving of its claim by the
plaintiff.
INTERPOSE:
[67]
The
matter then became part heard and a date was to be arranged for the
continuation of the trail later.
[68]
Indicative
of the overall situation that the matter was not trial ready on the
first day, Mr Alli proceeded to hand up further expert
notices when
the trial resumed on 22 January 2018. No reasonable explanation was
given for this the very late filing of expert
notices and joint
minutes. I accepted it because of the time already in court and in
the interest of the clients who have little
control of the compliance
with Rules and the Practice Directive. It however remains
unacceptable that the Practice Directive is
circumvented by the
parties in this way. This caused a further delay to allow the
defendant to consult with its expert about the
late report.
JUAN
LOUIS VENTER:
[69]
Venter
was employed by the plaintiff during 2013 as a civil technician. His
expertise as set out in the Rule 36(9) notice like all
the other
experts, was not disputed by the defendant.
[70]
Venter's
evidence with regard to the matter was that he was tasked to drill
certain cores at the site of the construction of the
bridge. His
evidence as to the precise location to drill and extract the cores
was that the pointing is done on site by the plaintiffs
manager on
site.
[71]
He
drilled five cores and he marked the location of extracting of the
cores on the plan as reflected on p 214 of the bundle. He
numbered
and marked the exact locations from 1 to 5. Although Mr Alli earlier
objected to the use of the plan whilst Mahlangu testified,
the plan
originated from the plaintiffs employees and was provisionally
allowed as evidence.
[72]
Mr Alli's objection was that the receiving of the plan earlier
amounted to hearsay evidence, but now
that Venter confirmed that he
was the author thereof, that objection falls away. In any event, the
admitting of the plan earlier
was provisional and within the ambit of
section 3(1)( c) of the
Law of Evidence Amendment Act 45 of 1988
. See
Ramavhale 1996(1) SA 639(A) at 664-652.
There can be no
prejudice in allowing the plan in particular after the evidence of
the author thereof. As earlier indicated, the
plan was part of the
plaintiffs discovered documents and was part of the plain tiffs
trial bundle from the beginning.
[73]
Venter was very clear as to the markings of the places where the
cores were extracted and that it was
from the base of the
construction. When he was confronted during cross-examination that
Mahlangu earlier testified that some of
the marked places are on the
apron and not the base of the construction, he reluctantly conceded
that the portion not in dark on
the plan may well have been the
apron, resulting that some of the cores may well have been extracted
from the apron and not the
base.
[74]
Mahlangu' s evidence was that cores 2, 3, 4 and 5 were actually
extracted on the apron of the bridge,
if the markings made on the
plan on p 214 were correctly indicated.. This seems to be correct if
the plan on p 214 in taken into
account. Keeping in mind the overall
onus, this may be detrimental to the plaintiffs case.
[75]
Venter further testified that, at the time of the extracting of the
cores, in view of the extraction
position as marked by him on the
plan, he would not have known the difference between the "base"
and the "apron",
particularly in relation to the view from
the top of the bridge as reflected on the drawings on p 215.
[76]
It is thus most probable that the majority of the cores were
extracted from the apron where the required
strength of the concrete
mix was 15 mpa. The subsequent test results are therefore
questionable to be relied upon for the following
reasons:
- Van
Niekerk only interpreted the data received from the laboratory per-
sonnel, he never "oversaw"
the actual process when the
cores were extracted or tested in the laboratory. Although Mr Alli
indicated that Me Verwey would testify
on the testing of the cores,
she was not called to testify on this aspect. The opinion of Van
Niekerk is therefore of very little
value because he cannot confirm
the correctness thereof;
-
The
extraction of the cores are most probable from the apron and not the
base of the construction;
-
Van
Niekerk conceded that Smith's calculation of the density on the cores
is an acceptable manner and an agreed procedure to calculate
same;
-
Van
Niekerk further conceded that excess voids (up to 11,2%) depicted in
his report indicated something probably wrong with the
compaction of
the concrete and that this should have been raised by the engineer on
site. Van Niekerk conceded that to much air
(as in the voids) in the
concrete would influence the strength of the concrete.
[77]
The
results of the core tests in my view are of very little value at all
for reason that the results do not prove that the concrete
delivered
to site did not comply with the product ordered.
JOHAN
WEINMANN.
[78]
Mr
Weinmann is a structural engineer with 23 years of experience. His
expertise was conceded on behalf of the defendant. There is
therefore
no need to repeat his full curriculum vitae.
[79]
Weinmann's
evidence in broad was that he received the Bill of Quantities (BOQ)
and that he established that the numbering in the
BOQ correspond with
the numbers used in the COLTA (The Standard Specifications for Road
and Bridge Works for State Road Authorities).
He also testified that
he is familiar with the SANS specifications (The SANS specification
for concrete construction also referred
to as SABS 1 200 G). The
latter is generally used in the construction of concrete buildings
structures but not necessarily in bridges.
[80]
He
accepted that the COLTO specifications were applicable on the
project. On bridge designs he stated that there are two (2) parts
to
the design, the first deals with the loads to be used to design the
structure and the second the actual design of the concrete
elements
of the bridge.
[81]
He
never visited the building site and based his opinion on the
documentation (the BOQ and the core test results) to from his
opinion.
He had a discussion with Mr Fullard, the expert on behalf of
the defendant but differs from the opinion of Fullard.
[82]
His
conclusion in chief was that the concrete supplied did not meet the
specified requirement of 25 MPA and therefore did not meet
the
acceptance criteria for cores as specified in the code. He at first
concluded that the engineer was correct to take the decision
to
demolish the concrete. He also conceded that he based his opinion on
the core test results supplied by LTD Civil Services and
of Matrolab.
[83]
He
did state that although the COLTA specs normally applied in the
construction of bridges, that the design engineer would have
the
choice whet her to use COLTA or SANS 10100 specs. He stated that
it is a 50/50 in the industry what specs are normally
used. He also
stated that the different materials such as the stone (dolomite,
granite), cement, sand and water used to prepare
ready-mix concrete
could also determine the strength of the final product. Other factors
that could have a bearing on the end result
of the ready-mix could be
poor control over the different material quantities, any
contaminations etc that goes into the mix during
preparation. He did
not mention the effect of poor workmanship whilst the casting of the
concrete on the final outcome of the concrete
during his evidence in
chief.
[84]
During
cross-examination he made several concessions with regard to the
following:
(a)
The
fact that although he at first stated that, due to COLTA, the
engineer was not obliged to consider various options to consider
in
the in stance of non-compliance with specifications regarding
the concrete;
(b)
That
SABS standard 878 takes preference over COLTA when dealing with
ready-mix. This was very clear from SABS 878 that
"where
ready-mix concrete is delivered at the site the requirement of SABS
878
shall
apply
priority over the requirements specified should in- consistencies
occur".
(c)
He
also conceded that, contrary his evidence in chief, a reasonable
engineer should follow certain procedures in the event of
non-compliance
with the criteria, allow certain tests to be conducted
in order to decide whether concrete may be left in position or to
demolish
it. See COLTA par 6.4.1.4.
(d)
This
provided inter alia for a further curing of the concrete for an
additional 56 days, and for full scale load tests to be conducted
in
accordance with SABS 10100
Part 2
to determine whether the particular
structure can be left
in
position.
(e)
He
also conceded that SANS 10100 places an obligation on the engineer in
instances where non-compliance of specs of the concrete
is tested, to
revisit the design, to perform a full scale load test and to consider
strengthening the deficient part of the structure
or to widening the
base of the bridge before a final decision is taken to demo lish
the structure. Wienmann conceded that
a reasonable experienced
engineer would consider these options and other options known to the
engineer before as a last option
to demolish the structure. Although
the options in SABS 10100 are not on descending order, reason
dictates that to demolish would
be the last resort if all other
options fail. He stated that if he was the structural engineer,
demishing would be the last option.
[85]
Weinmann
was not aware of the low rating of the plaintiff' s workmanship and
skill by its own resident engineer (Du Preez) - 4 out
of 10- and
conceded that poor workmanship on site could affect the results of
the cube and core tests. If taken into account the
high voids in the
cubes (even visible on the photographs), this factor cannot be
excluded at all. I will discuss this aspect below
when evaluating the
evidence as a whole taking into account the burden of proof and other
legal aspects.
[86]
I
need to mention that the very late filing of the expert notice with
regard to Weinmann resulted in Mr Shepherd to request a further
stand
down to canvass it and Weinmann's evidence with Fullard (the
defendant's expert in this regard) resulting in the further
loss of
time.
[87]
The
defendant applied for absolution of the instance after the plaintiff
closed it's case. The application was dismissed and the
costs ruled
to be costs in the main action. Mr Alli argued that he is entitled to
costs for pre paring his heads of argument
because according to
him a day stops at 16:00. This was unconvincing and I held that it is
part of the day fee for the specific
day.
DEFENDANT'S
WITNESSES:
JACQUES
HENDRY SMITH:
[88]
Mr
Smith as a practicing civil with 10 years experience specializing as
a consultant in concrete. His practice has a laboratory
that is
internationally accredited through SANAS (South African National
Accreditation Systems). He is also accredited with the
Engineering
Counsel for CPD points for professional engineers on concrete
technology lecturing for the past 27 years on concrete
technology.
Like with the other experts, Mr Alli did not dispute his expertise
and it was not necessary to read out his CV.
[89]
The
essence of his evidence related to the following three aspects:
(a)
The
joints minutes between himself and Van Niekerk, the plaintiff's
opposing expert (Ex "A", "B" & "G");
(b)
The
concrete cubes- sampling and testing thereof; and
(c)
The
concrete cores-sampling and testing thereof.
[90]
He,
like Van Niekerk, and the majority of the other experts, were not
pre sent or involved in the making/sampling and testing
of the
cores and cubes. They all rely on the various laboratory reports and
results, and he based his opinion on the documentation
presented to
him. Although his evidence in cross-examination on the method/taking
of the samples is not beyond criticism, there
is no reason to reject
is outright. From a careful reading of what he said on the sampling
it seems that he explained that the
different cubes made should be
from the same truck to ensure when com paring these results
cubes from the same source is compared
with the same and not with
different concrete from other trucks. I am of the view that the
criticism is somewhat unfair. Similar
is the criticism on the aspect
of the first and last 10% of the running stream of the concrete not
convincing.
[91]
What
stands uncontested between these two experts and others is that poor
workmanship would weaken and influence the strength of
the concrete.
The plaintiff's own resident engineer rated the workmanship of the
plain tiff at 4 out of 10. This lack of workmanship
casts a
shadow of doubt over the skill of the employees of the plaintiff in
particular to the pouring and subsequent compacting
thereof,
particularly in view of the excessive voids in the concrete, even
visible on the photocopies handed in. The plaintiff
did not produce
any evidence on the excessive voids in the concrete (also visible on
the photographs). Van Niekerk in his evidence
conceded that the
presence of the excess voids is indicative of a problem with the
compacting of the concrete after the pouring
thereof. He was
confronted with what Smith will testify and he agreed with what was
put to him. It has to be remembered that Dhanee
could also not
confirm that the compacting of the concrete was properly done by the
employees of the plaintiff.
[92]
From
the joint minutes between Smith and Van Niekerk (Ex "B"&
"G"), LTG Civil Services Laboratory was not
accredited for
testing of the cube testing but Martolab (for the core testing) was
accredited. These joint minutes were compiled
between the two experts
on 4 September 2017 and 8 September 2017 after discussion of the
issues.
[93]
From
Exhibit "B" (joint report by Smith and Van Niekerk dd 4
September 2017), it is clear that the experts agreed that
there was a
problem with the compacting of the concrete and that the photo's
indicate large quantities of air in the concrete.
All the experts
agreed that such air would impact on the strength of the concrete,
and is indicative of the poor skill and workmanship
of the plaintiff
as rated by it's own resident engineer.
[94]
Exhibit
"G" is critical on the testing by LTG laboratory. This is a
joint minute by the concrete experts of both parties.
I will refer to
this below in particular with reference to the onus to proof and when
commenting on the value of the evidence by
each witness.
ANDRE
FULLARD:
[95]
Mr
Fullard was the last witness called on behalf of the defendant. His
expertise was, like all the other experts, not disputed by
Mr Alli on
behalf of the plaintiff. He is a qualified consulting structural
engineer with 42 years of relevant experience and it
currently self
employed.
[96]
His
evidence was mainly about the various test results and what he
perceives to what a reasonable experienced engineer ought to
have
done after receiving the results. He prepared a comprehensive report
(exhibit "K") setting out his opinion on the
results of the
testing and suggested remedial action that should have been taken. It
has to be remembered that he could not visit
the sight of the bridge
because it was rebuilt before he was man dated.
[97]
As
testified by Smith with regard to the cube testing and subsequent
results from LTG, Fullard had reservations as to the value
of the
results for reason that the procedure was in want of compliance with
the necessary specification because inadequate quantities
of cubes
were tested as sampled and also that the initial testing were
performed 14 days and not 7 days from making of the cube
samples and
that the cubes were not representative of the entire batches of
delivered concrete. This casts a shadow over the value
of the results
and may also be due to the very low score on skill and performance
given to the contractors by it's own resident
engineer (Du Preez).
[98]
Mr
Alli cross-examined Fullard extensively but in my view this does not
detract on the value of his evidence. The fact that he was
not in
possession of the BOQ or other drawings has no bearing on the opinion
he casts on the doubtful testing procedure and results.
[99]
Fullard
also explained the various options he set out that an experienced
engineer ought to have considered after receiving the
results in
question. Although COLTA places no obligation on an engineer in
situations like this, if read in conjunction with SANS
1 200 G, and
conceded by Weinmann, a contractor and also the project engineer,
should consider various options to remedy the defect
before deciding
in the last instance to demolish the structure. It is however clear
that COLTO instructs the engineer to do additional
curing of the
concrete in instances like this. The additional curing should be over
a period of 56 days. It is therefore clear
that where problems with
regard to the concrete occur, additional curing must be done. This
was not done at all.
[100]
Fullard comprehensively dealt with these options in his report and
his evidence. I am satisfied that Fullard's
remedial recommendations
are reasonable and within the ambit of COLTA and
SANS.
The
criticism now leveled against him by Mr Alli in his heads of
arguments is in my view without substance.
[101]
Fullard
had the results from LTG, Geo-Africa and Matrolab to his disposal. He
commentted on the variance between the upper and lower
values
) of the cores and opines that these extremely high variances calls
for an explanation. According to his opinion
concrete from the same
mix design, if well compacted and well-cured, cannot result in such
great variance of strength. Factors
such as workmanship, ia curing
and compacting, are at play. He continues that the poor results may
be for the following:
*
poorly
manufactured ready-mix concrete by the supplier - (no evidence in
this regard is before the court);
*
poor
workmanship, ia compacting, curing on site - (the poor skill rating
of the contractor by it's own resident engineer raises
eyebrows);
*
inadequate
samples made for testing; See
Exhibit
"K".
*
There
is also no evidence of inherent defects in the concrete mix-design.
[102]
The
above summarizes the evidence on which the Court has to decide. In
total eleven expert witnesses testified, all qualified in
a
specialist field in the engineering and construction field.
LEGAL
PRINCIPLES AND EVALUATION OF THE EVIDENCE:
[103]
The departure in any civil matter is that he who alleges has to
prove. See
Pillay v Krishna
1946 AD 946
, 951
and
Mobil Oil
Southern Africa (Pty) Ltd v Mechin
1965 (2) SA 706
A 711.
"
Semper necessitas probandi incumbit illi, qui agit"
from D
22 3 21, meaning the plaintiff who alleges has the need to prove the
probandi -facts in order to be successful. The burden
to prove is on
a balance of probabilities.
[104]
The
Supreme Court of Appeal (SCA), then the Appellate Division of the
High Court, in
Stellenbosch
Farmers' Winery Group v Martell and Others
2003 (1) SA 11
SCA
dealt
with the legal position where conflicting versions between the
various parties exist. Various aspects such as credibility,
reliability, and the probabilities must be considered. The
possibility of bias of witnesses towards the outer side must be
examined.
The court also has to consider contradictions in a
witnesses's evidence and contradictions between the various witnesses
of a particular
party's witnesses. There are other factors to
consider when evaluation the evidence as a whole such as set out in
the
Stellenbosch
case
which
I considered before coming to a finding.
[105]
The
overall onus on a plaintiff normally does not shift unless the
defendant raises a defence calling for prove beyond the initial
onus.
See
Mabaso
v Felix
1981 (3) SA 865
A.
In
Woerman
and Schutte v Masongo 2002
(
1)
SA 811
SCA
on
819
A-C
the
SCA held that
"In
any event onus, in the sense of the duty that is cast on a particular
litigant, in order to mbe successful, of finally
satisfying the court
that he is entitled to succeed on his claim or defence is a matter of
substantive law and not procedure".
[106]
The
plaintiffs claim is premised upon a partly written, party oral
agreement between the parties in terms of which the defendant
had to
deliver various consignments of ready-mix concrete as and when
ordered by the plaintiff from the defendant. In order to
succeed, the
plaintiff had to prove:
*
that
there was an agreement;
*
the
terms of the agreement;
*
the
alleged breach of the agreement by the defendant;
*
that
the plaintiff suffered damages as a result of the defendant's breach
of the agreement;
*
a
casual link between the breach and the damages; and
*
that
the loss was not to remote.
[107]
The
existence of the agreement and the type of concrete to be delivered
is not in dispute. The dispute between the parties is whether
the
ready-mix concrete delivered was what was ordered and whether the
concrete developed to the required strength as per the design
requirement of the project.
[108]
There
is no dispute as to the consignments delivered as per the pleadings.
This is however not the end of the road for the plaintiff.
In order
to acquire the design strength the concrete is poured and compacted.
It is then, after the cores and cubes were prepared,
subjected to the
various tests. Various aspects then come into play that will
ultimately effect the strength of the final product.
This is
influenced by the following:
*
the
design (formula) of the ready-mix;
*
the
process of curing the concrete after the pouring thereafter;
*
the
preparation and further handling of the cubes made on sight by the
contractor;
*
the
correct testing procedure- including the number of samples
taken/made;
[109]
If
the ready-mix design was incorrect as prepared and supplied to the
plaintiff by the defendant, the further curing of the concrete
will
not enhance the developing of the concrete to the required strength.
If however the design of the ready-mix is correct, it
is not a
forgone conclusion that the concrete will develop to the required
strength. The experts were all in agreement that there
are some main
factors that play a role in this regard namely:
*
the
concrete design,
*
the
compacting and further curing of the concrete; and
*
the
correct procedure, making of and collecting and testing the cubes and
cores.
[110]
There is nothing to suggest that the ready-mix design was incorrect.
The defendant's witnesses were never cross-examined
on this aspect
nor was it put to Fullard during cross-examination that poor
workmanship can be excluded as a potential contributor
to the
deficiency in the strength of the concrete after delivery. See
President of the Republic of South Africa v South African Rugby
Football Union
2000 SA 1
CC at par 61 and on (The Sarfu-case).
A
point in dispute left unchallenged in cross-examination is accepted
as correct.
This maxim was applied in
Dexion Europe Ltd v
Universal Storage Systems (Pty) Ltd
2003 (1) SA 31
at par 15 (39B-D).
[111]
A
similar approach was previously adopted in
Pezutto
v Dreyer
[1992] ZASCA 46
;
1992 (3) SA 379
AD.
No
evidence was further presented by the plaintiff to exclude poor
workmanship on its part as a contributing factor to the deficiency
in
the development of the strength of the concrete.
[112]
Fullard
also testified that according to his analysis of the ready-mix de
sign, it should be able to reach the required 25
MPA strength. It can
safely in my view be accepted that it excludes that the ready-mix as
delivered contributed to the deficiency
in the final product.
[113]
The
poor skill and workmanship rating of the plaintiff by it's own
resident engineer now becomes more relevant. The evidence further
of
Venter as to the exact locations, as clearly marked by him on the
plan (p 240), becomes more relevant in that where he collected
the
drilled samples could be on the apron and the base of the bridge. It
is clear that two different strengths of concrete was
used on the
aprons and the base. This questions the workmanship and the skills of
the people utilized by the plaintiff. The inadequate
number of
samples and then what Fullard remarked that concrete from the same
batch when tested will unlikely differ so large as
was here see in
the variances. The excessive visible voids is a further indication of
poor compaction of the concrete.
[114]
On
the above the likelihood of poor workmanship and not incorrect
concrete design was the main contributor to the plaintiffs dilemma.
In view of the overall onus the plaintiff has failed to prove beyond
reasonable doubt that the defendant materially breached the
agreement.
[115]
The
question of damages need not be addressed in view of the plaintiffs
failure to prove any breach of the agreement. I however
am of the
view that there are certain unsatisfactory aspects in the approach by
Tsingano in particular when calculating the alleged
damages that his
approach is not above criticism. To mention but some is the charging
of VAT on VAT and other aspects. Tsingano
was not a satisfactory
witness, being evasive, aspects contrary the pleadings and receiving
payments on top of salary from the
plaintiff. The court with respect
cannot rely on his evidence.
[116]
Under
the circumstances I am of the view that the plaintiff has failed to
prove its case.
COSTS:
[117]
Costs
are in the discretion of the court. The normal rule is that costs
follow success, unless there are other factors why the court
should
deviate from the normal rule. I am not persuaded that there is any
such in this matter. The only aspect to decide is whether
the
defendant is entitled to costs of two counsel.
[118]
Mr
Shepherd explained why the defendant employed two counsel. The
previous senior counsel became unavailable and thereafter Mr Shepherd
was briefed. The matter was not an ordinary matter but intricate and
in my view justifies the appointment of two counsel.
[119]
Mr
Alli in his heads argue that the matter could have been finalized
earlier but that the conduct of the defendant on various instances
during the course of the trial led to unnecessary postponements, in
particular when the defendant requested to have the matter
stand down
to prepare with Fullard. The conduct on behalf of the plaintiff to
evade the practice directive was addressed above.
[120]
Mr
Alli however forget why this was necessary- the plaintiffs expert
notice was well out of time and only after the matter was part
heard.
The aspect of non-compliance with the practice directive. The
plaintiff now wants to blame the defendant for what was caused
by the
plaintiff. His argument in this regard does not persuade me.
ORDER:
BY
ORDER OF COURT:
[121]
I
make the following order:
1.
The
plaintiffs action is dismissed with costs.
2.
The
costs is to include the costs of two counsel.
Signed
at Pretoria on this 8
th
day of January 2019.
HOLLAND-MUTTER
J
Acting
Judge of the Gauteng
Division
of the High Court, Pretoria
TO:
PLAINTIFF:
STAN
FANAROFF & ASSOCIATES
Plaintiffs
Attorney
011-
880 2091
Ref:
D JONESN vonne/Bl 69.2
Counsel:
Mr
Alli
Sandton
Chambers
082
938 8177
DEFENDANT:
BLIGNAUT
& WESSELS
Defendant's
Attorney
012-
346 0997
Ref:
WESSELS/avdb/T30
Counsel:
1.
Mr
Shepherd
Brooklynn
Chambers
082 648 4443
2.
Mr
Lourens
Brooklyn
Chambers
072 979 8908