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[2019] ZAGPPHC 130
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Tshwarisano Trading CC v Sibonga Intuthuko Construction CC (59854/2011) [2019] ZAGPPHC 130 (17 April 2019)
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH
AFRICA
GAUTENG DIVISION, PRETORIA
(1)
REPORTABLE:NO
(2)
OF INTEREST TO OTHER
JUDGES: NO
CASE NO: 59854/2011
17/4/2019
In
the matter between:
TSHWARISANO
TRADING CC
PLAINTIFF
and
SIBONGA
INTUTHUKO CONSTRUCTION CC
DEFENDANT
JUDGMENT
KUBUSHI
J
INTRODUCTION
[1]
The defendant obtained a contract with
the Lekwa Municipality ("the municipality") to do certain
water works and it sub-contracted
some of that work to the plaintiff
in terms of a letter of appointment dated 31 August 201o. The
plaintiff in this action seeks
payment from the defendant in the
amount of R304 702, 72 (three hundred and four thousand seven hundred
and two rand and seventy
two cents) plus 14% value added tax
("VAT")
in lieu
of
services rendered in terms of the said letter of appointment. The
defendant admits the appointment of the plaintiff as sub-contractor
but denies that the plaintiff performed the services/work it was
appointed to do and that it is entitled to payment.
[2]
The letter of appointment is attached to
the particulars of claim and was also read into the record. It reads
as follows:
"
CONTRACT: UPGRADING OF
WATER NETWORKS IN MEYERVILLE
You are hereby appointed as a
subcontractor by Sibonga lntuthuko Construction on the abovementioned
project.
Your task will be trench
excavation, house connection and trench backfilling. Safety will be
your first priority on the
project. You are appointed for an amount of R304 702, 72 excluding
VAT as
per
the bill of quantities. Material will be supplied
by the main contractor.
Sub-Total
R304 702, 72
VAT@ 14%
R 42 658, 38
TOTAL
R347 361,
10"
[3]
At the commencement of trial I was
informed that the plaintiff had made certain concessions in its
response to the defendant's pre-trial
questions, namely:
3.1
that
the works were carried out from 31 August 2010 to 16 September 2011;
3.2
that
the employees of the plaintiff who attended to such work were: Khehla
Mokoena, Nurse Mashinini, Rosina Pillow, Lucky Kunene,
Johannes
Twala, July Nkosi, Bhuti Dhlamini,
Siphiwe Nkosi, P.N. Nkabinde
and Z.E. Vilakazi. It, howeve,rbecame
apparent during evidence that Nurse Mashinini, Johannes Twala and
Bhuti Dhlamini were actually
contracted to the defendant, that is,
they were employed by the defendant;
3.3
that
the full details of all the work/services the plaintiff undertook on
behalf of the defendant in terms of the agreement were:
trench
excavation, house connections and trench backfilling;
3.4
that
on the request of the plaintiff, the defendant attended to the
excavations with TLB machinery and operator, at its cost at
the
project site;
3.5
that
the plaintiff transported the defendant's employees to attend to the
project site and that it was remunerated for same on a
monthly basis;
and
3.6
that
the defendant attended to the payment of salaries of the plaintiff's
employees in the amount of R118 800 (one hundred and eighteen
thousand eight hundred rand).
[4]
At the end of the plaintiff's case the
defendant applied for absolution from the instance which was opposed
by the plaintiff. I
ruled that the plaintiff has made a
prims
facie
case which the defendant ought
to answer to. I reserved the reasons and undertook to provide same
when giving this judgment.
THE
PLEADINGS
[5]
The salient terms of the plaintiff's
claim in the amended particulars of claim are formulated as follows:
"3.
On or about 31 August 2010 and at Standerton, Mpumalanga, the
Plaintiff and the
Defendant entered into a written agreement, a copy
of which is attached as Annexure
"A".
Defendant was
represented by Mr L Banda duly authorised.
4.
In
terms of the. said agreement the Plaintiff was appointed as a
sub-contractor in respect of the upgrading of the water network
in
Meyerville, Standerton ("the works").
5.
The
Parties furthermore in terms of the written contract, agreed:
5.1
That
the Plaintiff would undertake the trench excavation, house
connection·. and trench backfilling with respect to "the
works":
5.2
That
the Plaintiff would be remunerated in an amount of R304 702,
72
plus VAT on completion. .
6.
The
Plaintiff duly completed the work& on 31 July 2011 and in doing
so fulfilled its contractual obligation towards the Defendant.
The
contract price thus became due and payable.
7.
In
the premises the Plaintiff is entitled to payment of R304 702, 72
plus VAT."
[6]
The defendant in its plea admits the
averments contained in paragraphs 3, 4 and 5 of the plaintiff's
amended particulars of claim.
The defendant, however, denies the
allegations in paragraphs 6 and 7 of the amended particulars of claim
and puts the plaintiff
to the proof thereof. In particular, the
defendant specifically pleads that although the parties entered into
an agreement as stated
in paragraphs 3, 4 and 5 of the plaintiff's
amended particulars of claim, the plaintiff at no stage attended to
any work in terms
of its contractual obligations or rendered any
service contemplated and described in the contract between the
parties.
[7]
What emanates from the pleadings is that
the contract itself is not in dispute. It is also not in dispute that
the work/services
as
per
the
contract have been completed. The crux is who between the parties
performed the services. It is thus, apparent that, for the
plaintiff
to succeed in its claim it must, on a balance of probabilities, prove
that it performed the work/services as stipulated
in the contract.
THE
EVIDENCE
[8]
In proving its claim that the work was
performed by t e plaintiff, the plaintiff tendered the evidence of
two witnesses, namely,
Mr Malan Abraham Mokoena ("Mr Mokoena"),
one of the members of the plaintiff who was responsible for the
performance
in terms of the contract and as, alleged, was at all
material times present when performance was undertaken; and, Mr
Thomas Francis
("Mr Francis"), the Community Liaison
Officer ("CLO") appointed by the municipality to liaise
between the contractor
and the employees on site.
[9]
In summary, the evidence of Mr Mokoena
is that he together with Mr Francis sourced the plaintiff's employees
who were to perfo.rm
the work on behalf of the plaintiff from the
Sakhile Township ("the location"). His role, amongst
others, was to transport
the employees from the location to the site
of the construction ("the site") and back. He also, made
sure that the excavation
job, that is, what is written in the
contract, is done. Certain of the salaries of the employees who did
the house connections,
was according to Mr Mokoena, paid directly to
them by the defendant.
[10]
Mr Mokoena's further evidence is that he requested the defendant to
pay the plaintiff some of
the money due during the contract period,
but the defendant, at the instance of Mr Banda, the sole member of
the defendant, refused
to do so. His explanation is that Mr Banda
refused to pay the money to him because of what he referred to as the
question of trust.
Mr Banda was afraid that if the money was paid to
the plaintiff that he would disappear without finishing the remainder
of the
work in terms of the contract.
[11]
Mr Mokoena testified that he did not do the work but employed people
from the location who physically
did the work. He testified about the
physical labour that was done by his workforce starting from exposing
telephone cables, exposing
electrical cables, exposing water and
sanitation pipelines and so on. He even wanted to explain the reason
why ultimately, when
backfilling has to be done there was what he
referred to as, the bedding of the soil. This to him is what
constituted the excavation
and backfilling. He also accepted that the
defendant provided the TLB (machinery used to excavate) which was
used for the excavation
by the plaintiff's employees.
[12]
Mr Francis' evidence was very short. His testimony was that in terms
of the rules of the municipality,
25% (twenty five percent) of the
labourers on the site were to be sourced from the location. He
confirmed Mr Mokoena's testimony
that he together with Mr Mokoena,
sourced people from the location to work on the project as required
by the municipality. He also
confirmed that some of the people
sourced were simultaneously employed by Mr Mokoena to do work on the
project for the plaintiff.
[13]
On the other hand, the defendant called two witnesses to give
evidence, namely Mr Bhuti Lawrence
Banda ("Mr Banda"), the
sole member of the defendant and Mr Nhlanhla Godwel Kanye ("Mr
Kanye"), the defendant's
foreman whose evidence was tendered by
affidavit because he was deceased.
[14]
Mr Banda's testimony is that the defendant was appointed by him to
work on the site by doing
excavation, laying pipes, house connection
and backfilling of the trenches. According to the appointment on the
sub contract
the plaintiff was supposed to get its own employees
separately from the employees of the defendant. The plaintiff was
supposed
to do the trench excavation on its own, and pay for the
excavator or whatever tools it was using to excavate the trenches. To
his
knowledge all the people on site were employed by him for the
defendant through the CLO.
[15]
According to Mr Banda the plaintiff never worked on site, it never
excavated even a single metre.
As far as he was aware, what Mr
Mokoena did on site, was to transport the labourers from the location
to the site and that some
of the labourers were hired from the local
residence which is Meyerville. Mr Mokoena was transporting about ten
or twelve workers
to the site. Some of the workers resided closer to
the working place, and he used to pay him (Mr Mokoena) R20, 00
(twenty rand)
a day for the transport of each labourer at the end of
each month. Even the pipes that were stored in Mr Mokoena's yard were
transported
in Mr Banda's bakkie.
[16]
Mr Banda testified further that the
defendant had contracts with the workers which they signed before
they start work, because the
municipality does not allow people to
work without contracts. The people were sourced through the CLO for
the project where after
he (Mr Banda) would nominate and employ the
people he wanted . He insisted that none of the workers were ever
sourced by Mr Mokoena.
[17]
Mr Banda's evidence is that the
defendant's employees did the excavation, they made the bedding, they
laid the pipes, closed the
trenches, drilled the pipes and put what
is called a saddle in the pipes; none of this work was done by the
plaintiff. According
to him, if Mr Mokoena had done this work, he
would have either claimed fortnightly or on a monthly basis as
required by the municipality
rules but there was never a claim from
him. Mr Banda admitted under cross-examination that he was not always
on site but that he
relied on his foreman, Mr Kanye, to keep him
updated on was happening on site.
[18]
Mr Kanya's evidence read from the
affidavit into the record was briefly that the plaintiff or its
employees never did the house
connection. And further that Mr Mokoena
only transported their employees and was paid for the transportation
on a monthly basis.
ARGUMENT
The Plaintiff
[19]
In argument the plaintiff's counsel
contends that the admissions made by the plaintiff
were
understood in the wrong context. The
admissions, according to counsel, do not form evidence of
non-performance. To the contrary,
the admission made in regard to the
material to be supplied by the defendant meant to the plaintiff that
the defendant was to supply
the machinery necessary for the
excavation whereas for the defendant, it excluded the machinery.
Secondly, the transportation admission
does not advance the
defendant's case and is immaterial. Whereas the admission of the
payment of the amount of R188 800 (one hundred
and eighty eight
thousand eight hundred rand) directly to the employees does not
support the notion that it was part of the capital
amount.
[20]
The further argument is that the
interpretation and/or understanding of the contract by Mr Banda do
not take the case any further.
The crux is whether the contract has
been completed or not. And it is common cause that it has been
completed. What remains to
be determined is whether the work was done
by the plaintiff or the defendant. The defendant's argument is that
by bringing the
TLB to the site the excavation was done by the
defendant whilst the plaintiff's evidence is to the contrary. The
house connections
were confirm. ed by the evidence of the deceased
and the plaintiff's evidence that it did the trench backfilling is
unchallenged,
so the argument goes.
[21]
The contention is that an enquiry into
the probabilities is required. Counsel referred me to the judgments
in
Stellenbosch Farmers' Winery Group
Ltd and Another v Martel et Cie and Others
[1]
and
Home Talk Developments (Pty) Ltd
and Others v Ekurhuleni Metropolitan Municipality
[2]
as to how a court would deal with
two conflicting versions.
[22]
It is, thus, contended on behalf of the
plaintiff that the probabilities favour the plaintiff and that the
matter should, as such,
be determined in its favour.
The
Defendant
[23]
The argument by the defendant's counsel is that all work done by the
plaintiff, for instance,
sourcing people from the location and
transporting the employees, does not fall within the terms of the
contract and was in any
event paid for. A further argument is that
the plaintiff's evidence that there was a contract and employees were
sourced is not
what is in the contract or what is pleaded in its
papers. The plaintiff was supposed to prove that it performed its
obligations
in terms of the contract by leading evidence that show
that the plaintiff, through its own employees, physically fulfilled
these
obligations. There is also no evidence that the plaintiff
employed and paid employees to do the work. The contention is that it
is highly improbable that the defendant would have undertaken to pay
the plaintiff the amount in the contract just for sourcing
the
employees.
[24]
Counsel argued that the evidence of Mr
Kanye should be admitted into
evidence in terms of section 3 (1)
to (7) of the Law of Evidence Amendment Act
[3]
because the plaintiff had admitted in its response to the defendant's
pre-trial questions, that Mr Kanye was deceased.
[25]
Consequently he applied for the
dismissal of the plaintiff's claim with costs.
THE ISSUE
[26]
The issue indeed is which of the parties performed the work/services
stipulated in the contract.
Is it the plaintiff or is it the
defendant?
THE
LAW
[27] The
proper approach by the courts when dealing with mutually destructive
versions has been laid down
in the judgment in
Stellenbosch
Fanners' Winery Group Ltd and Another v Martell et Cie and Others
where Nienaber JA at para 5 of that judgment reported as follows:
"[5]...
The technique generally employed by courts in resolving factual
disputes of this nature may conveniently be summarised
as follows. To
come to a conclusion on the disputed issues a court must make
findings on
(a)
the credibility of the various factual
witnesses;
(b)
their reliability; and
(c)
the
probabilities.
As to
(a),
the court's finding on the credibility of a particular witness
will depend on its impression about the veracity of the witness. That
in turn will depend on a variety of subsidiary factors, not
necessarily in order of importance, such as (i) the witness's candour
and demeanour in the witness-box, (ii) his bias, latent and blatant,
(iii) internal contradictions in his evidence, (iv) external
contradictions with what was pleaded or put on his behalf, or with
established fact or with his own extracurial statements or actions,
(v) the probability or improbability of particular aspects of his
version, (vi) the calibre and cogency of his performance compared
to
that of other witnesses testifying about the same incident or events.
As to
(b),
a witness's reliability will depend, apart from the
factors mentioned under
(a)
(ii) (iv) and (v) above, on (i)
the opportunities he had to experience or observe the event in
question and (ii) the quality, integrity
and independence of his
recall thereof. As to
(c),
this necessitates an analysis and
evaluation of the probability or improbability of each party's
version on each of the disputed
issues. In the light of its
assessment of
(a), (b)
and
(c)
the court, will then, as
a final step, determine whether the party burdened with the onus of
proof has succeeded in discharging
it. The hard case, which will
doubtless be the rare one, occurs when a court's credibility findings
compel it in one direction
and its evaluation of the general
probabilities in another. The more convincing the former, the less
convincing will be the latter.
But when all factors are equipoised
probabilities prevail."
DISCUSSION
[28]
It is common cause that there are two mutually destructive versions
before me. According to the
plaintiffs version the performance was
done by the plaintiff whereas the defendant's version is that
performance was by the defendant.
[29]
On the rationale of the judgment in
Stellenbosch Farmers Winery
Group
this matter can be easily decided on the probabilities.
[30]
It is common cause that the project as stated in the contract at
issue in this matter has been
completed. The question is who
completed the project? Was it completed by the plaintiff or was it
completed by the defendant? The
parties are agreed that in order for
the plaintiff to perform the work stated in the contract it had to
employ people who would
physically do the work. The defendant's
evidence is that the plaintiff did not physically do the work and
that the work was done
by the defendant's employees. At the end, I
was faced with two contradictory versions.
[31]
I do not understand the plaintiff's
claim nor the evidence tendered in court to mean that the plaintiff's
main object on the project
was to source people from the location to
work on the project, as is suggested by the defendant. I might also
say, even though
this was the argument pushed consistently by the
defendant's counsel, it was, however not what the defendant
testified. In his
evidence, Mr Banda was adamant that Mr Mokoena did
not source people from the location as this was done by Mr Francis.
[32]
The plaintiff's case to me is clear. The
evidence establishes that there was a contract between the parties.
The plaintiff employed
people sourced from the location to physically
do the work. The salary of the employees who did the house connection
was paid by
the defendant. The work was done
per
specification of the contract. The
employees of the plaintiff, with the assistance of the TLB provided
by the defendant, did the
excavation - they started by exposing
telephone cables, exposing electrical cables, exposing water and
sanitation pipelines; they
did the backfilling - they started by
doing the bedding of the soil in order to protect the pipes; they did
the house connection
which is confirmed by the payment they received
from the defendant for their salaries. The contradictions about the
date of the
contract as against the time the work commenced which the
defendant seeks to rely on, are to me immaterial. In any event, the
dates
had already been admitted in the plaintiff's response to the
defendant's pre-trial questions. There was no need to prove the dates
again.
[33]
The evidence of Mr Mokoena is corroborated by the evidence of Mr
Francis who confirms that Mr
Mokoena sourced, together with him (Mr
Francis), employees from the location to work on the site for the
plaintiff. Mr Francis'
also confirms that the employees so sourced
worked for the plaintiff at the site. The evidence of the two
witnesses is unchallenged.
It was neither challenged in cross
examination nor was a version challenging that evidence put by the
defendant when Mr Banda tendered
his evidence.
[34]
The evidence of Mr Banda on the other hand is uncorroborated. The
only evidence that sought to
corroborate Mr Banda's evidence is that
of Mr Kanye which was proffered on affidavit because it is alleged
that he is deceased.
I have no problem to accept the affidavit of Mr
Kanye into evidence. The problem I have with this evidence, however,
is that it
was never put to the plaintiff's witnesses and can as such
not be confirmed as the truth of what actually happened. I, as such,
am not going to delve into its admissibility or otherwise as hearsay
evidence. Without, this evidence, the defendant's version
falls flat
because the evidence shows that Mr Banda was not always on site and
cannot for certain testify that all work on site
was done by the
defendant's employees instead of the plaintiff's employees.
[35]
On the probabilities: on what basis would the defendant hire
employees to do the excavation work
when in Mr Banda's own testimony
such a duty fell squarely on the shoulders of the plaintiff.
Probabilities are that since the
plaintiff did not have the requisite
money to pay the employees as Mr Banda had not paid him, in order to
have the work done he
allowed the defendant to pay the employees'
salaries.
[36]
It was never put to Mr Mokoena during his testimony that Mr Banda
would dispute that he never
said he has trust issues and as such not
pay the plaintiff until the work is done. Therefore, Mr Mokoena's
testimony that Mr Banda
indicated to him that he will not pay him
before the work is done because of trust issues remains unchallenged.
[37]
The following evidence of Mr Banda was never put to Mr Mokoena to
answer to, namely:
"if
you are working faster you can claim fortnightly from the
municipality or else you can claim once a month, so in this case
there was no claim from Mr Mokoena each and every month to say I have
done this job, let us go and check, and if he has done a
job he must
call me, let us go and measure the Job that is done before we make a
payment because now this payment was supposed
to be made punctually,
partly, partly because of what has been done during that specific
month or on those specific weeks. It was
not a payment that is going
to be made after the job is finished ."
[38]
Mr Banda also consistently denied that
Mr Mokoena sourced the labourers yet this is the angle that was
pushed by his counsel during
cross examination and particularly,
during his application for absolution from the instance.
[39]
It was never put to Mr Mokoena that his
company did not do the exposing which Mr Banda denies in his
evidence.
[40]
The evidence of Mr Kanye was never put
to Mr Mokoena to dispute. It can, as such, not be said that the
plaintiff did not do the
house connections.
[41]
Mr Francis' evidence that he sourced the
employees together with Mr Mokoena from the location and that the
municipality required
25% (twenty five percent) of the employees to
come from the local community was never challenged.
[42]
Mr Banda conceded under cross
examination that other than the three employees whose contracts with
him were discovered, there were
other employees on site. According to
his testimony some of these employees were contract d to him but
their contracts did not
form part of the evidence before me. As a
result, I cannot accept that those employees were contracted to the
defendant. It was
also not put to the plaintiff's witnesses that,
except for the three employees who had contracts with the defendant,
the other
employees who were mentioned by Mr Mokoena and Mr Francis
as the · employees of the plaintiff, were not the plaintiff's
employees. I have therefore to accept that other than the employees
that were contracted to the defendant there were other employees
on
site which on logic could only have been those of the plaintiff.
[43]
Besides, Mr Banda's evidence did not
impress me at all. He was most of the time evasive and refused to
answer questions put to him
to the extent that I had to step in. His
demeanour left much to be desired bordering on arrogance.
[44]
He denied under cross-examination that
the TLB did not form part and parcel of the equipment that was to be
used on site whilst
it was his counsel's argument that the TLB was
equipment not material.
[45]
Although under cross examination he was
not ready to accept that Mr Mokoena was part of the people who
sourced the employees, he,
however, conceded that the project would
not have been completed without the labourers sourced by Mr Francis
and Mr Mokoena. His
evidence that it was not Mr Mokoena who sourced
people from the location would, in any event, not stand since it was
never put
to Mr Mokoena. And as I have said, this was the·
line pushed by his counsel when cross examining Mr Mokoena and
in
argument in the application for absolution from the instance.
[46]
He conceded that Mr Mokoena could not
have physically done the work but his company, through its employees
should have done so,
but was unable to show that the work was not
done by the plaintiff's employees.
[47]
On a question from the bench why he
employed the people if they were supposed to have been employed by
the plaintiff, Mr Banda replied
as follows:
"I
employed the people because the main work there was allocated to me
to do the job, about 90 percent of that job was allocated
to me, so I
was the one to employ more people on site to finish the work.”
[48]
The answer, to me, is loaded. In my own interpretation it means that
Mr Banda employed the bulk
of the employees on site because he was
the main contractor. But the answer does not say Mr Mokoena had no
employees on site who
were doing part of the work contracted and/or
outsourced to the plaintiff. The answer was further amplified by Mr
Banda's answer
to a question from the defendant's counsel when he
said that it would still have been necessary for the defendant to
hire its own
employees to do the defendant's part of the work even if
the plaintiff had its own employees on site.
[49]
The initial impression I got was that the defendant hired the
employees, to do the work that
was outsourced to the plaintiff, that
is, the excavations, house connection and backfilling. But what this
answer reveals is that
the defendant had its own employees on site
which were doing work other than the work outsourced to the
plaintiff. In the sense,
the three employees who Mr Banda referred to
in his evidence might not have been employed to do the work
outsourced to the plaintiff.
In actual fact no such evidence was led
to show that the three employees or any other employee who Mr Banda
alleges to have employed
did the work stipulated in the contract. The
fact that Mr Banda had people on the site, or that he employed
people, whether sourced
by Mr Mokoena or not, is no conclusive proof,
to me, that those employees are the ones who did the excavation.
[50]
As regards the issue of whether the TLB constituted part of the
material, as stated in the contract,
and as suggested by the
plaintiff or equipment which does not form part of the material
stated in the contract, I am inclined to
align myself with the
defendant's version. The TLB, as it has been explained by the
witnesses, is equipment which is required to
assist in the
excavation. I am as well inclined to accept the defendant's evidence
that the excavation would not have occurred
without such machinery. I
further accept the defendant's version that the TLB was supposed to
have been provided by the plaintiff
because it is the plaintiff who
was to do the excavation and not the defendant. Having said that
though, it does not mean that
due to the defendant providing the TLB,
it is conclusi.ve proof that the excavation was done by the
defendant's employees. Mr Mokoena's
evidence that it is the
plaintiff's employees who used the TLB to do the excavation is not
controverted. It was neither challenged
under cross examination nor
did the defendant's witness proffer evidence to the contrary. I have
in that vein to accept that the
excavation was done by the
plaintiff's employees, of course, using the TLB provided by the
defendant.
[51]
The plaintiff's claim against the
defendant is for the amount of R347 361, 10 (three hundred and forty
seven thousand three hundred
and sixty one rand and ten cents) for
services rendered. The plaintiff has also admitted that the defendant
paid an amount R118
800 (one hundred and eighteen thousand eight
hundred rand) as salaries to its employees. I accept the defendant's
version that
the responsibility to pay the salaries sourced by the
plaintiff to do its outsourced work, rested on the plaintiff . The
plaintiff
cannot claim this money from the defendant. It cannot be
expected that the defendant would pay the salaries of the plaintiff's
employees and still pay the full amount as
per
the contract.
[52]
There is evidence by the plaintiff that
the amount was paid to the employees because of the work they did in
the house connection
but the evidence also show that the house
connection work forms part of the work outsourced by the defendant to
the plaintiff.
This evidence supports the plaintiff's version that in
fact this work was done and counters that of the defendant that the
house
connections were not done by the plaintiff. It does not,
however, support the plaintiff's proposition that this amount was not
part of the capital amount.
CONCLUSION
[53]
I am satisfied that the plaintiff was
able to prove on a balance of probabilities that it performed the
work/services stipulated
in the letter of appointment. In the
circumstances, it is my view that the plaintiff was only able to
prove the amount of R228
561, 10 (two hundred and twenty eight
thousand five hundred and sixty one rand and ten cents), being R347
361, 1o (three hundred
and forty seven thousand three hundred and
sixty one rand and ten cents) less the amount of R118 800 (one
hundred and eighteen
thousand eight hundred rand) together with
interest thereon at the rate of 15, 5%
a
tempore morae.
[54]
On the decision I have reached, I do not
think it necessary to dwell too much into the reasons why I refused
absolution from the
instance at the close of the plaintiff 's case.
It is, however, safe to say that the plaintiff's evidence, at the
close of its
case, provided a
prima
facie
case which the defendant had
to reply to.
THE
ORDER
[55]
I make the following order:
1.
The
plaintiff's claim succeeds with costs.
2.
The
defendant is ordered to pay the amount of R228 561, 10 (two hundred
and twenty eight thousand five hundred and sixty one rand
and ten
cents) to the plaintiff.
3.
The
said amount is payable with interest at the rate of 15, 5% a
tempore,
morae.
E.M.
KUBUSHI
JUDGE
OF THE HIGH COURT
APPEARANCES:
Plaintiff’s
Legal Representative:
Mr L. Monnakgotla
Instructed
by:
Maphoso Mokoena
Attorneys
Counsel
for Defendant:
Adv. A. M. Smit
Instructed
by:
Johan Nysschens
Attorneys
Date
heard:
11 October 2018
Date
of Judgment:
17 April 2019
[1]
2003
(1) SA 11
(SCA).
[2]
2018
(1)
SA 391
(SCA) at paragraph
176.
[3]
Act 45 of 1988.