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[2019] ZAGPPHC 361
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Bolombe 82 Trading and Projects CC v Passenger Agency of South Africa (79684/2019) [2019] ZAGPPHC 361 (5 July 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.: 79684/2019
5/7/2019
BOLOMBE
82 TRADING AND PROJECTS CC
Applicant
and
PASSENGER RAIL AGENCY OF SOUTH
AFRICA
Respondent
JUDGEMENT
KILIAN
AJ
INTRODUCTION
1.
This
application concerns the interpretation of a written agreement,
concluded between the applicant, Bolombe 82 Trading and Projects
CC
("Bolombe"), and the Passenger Rail Agency of South Africa
("PRASA"), in terms whereof Bolombe was appointed
to supply
and deliver portable ticket sales and verification devices and to
provide maintenance and support in respect of those
devices. The
written agreement was concluded on 17 May 2016 and at Johannesburg,
alternatively on 23 May 2016 and at Pretoria ("the
agreement").
2.
The
agreement was concluded pursuant to PRASA following its normal
procurement procedures and invited members of the public to submit
tenders for the supply of the devices and maintenance and support in
respect thereof. To this end, PRASA issued a request for proposals
("the RFP") in respect of tender number HO/ICT/408/05/2015.
3.
In
terms of the RFP, PRASA intended to appoint a service provider for
the supply, integration and implementation of portable ticket
sales
and verification devices. Part of the tender criteria was a 3 (three)
year maintenance and support costing structure in respect
of the
devices.
4.
Bolombe
reacted to the RFP and submitted its tender documents to PRASA. It
tendered to provide 1 200 devices at a total cost of
R10 620 000.00
(Ten Million Six Hundred and Twenty Thousand Rand) (inclusive of VAT)
and to also provide maintenance and support
in respect of the 1 200
devices, over a 3 (three) year period, for a total sum of RB 064
000.00 (Eight Million and Sixty Four Thousand
Rand). The maintenance
and support cost would be a fixed total monthly cost, structured as
follows:
4.1.
during the first year, Bolombe would not
charge any costs in respect of maintenance and support as this would
fall under the first
year warranty period;
4.2.
during the second year, Bolombe would
charge R240.00 (Two Hundred and Forty Rand) per unit, at a fixed
monthly cost of R288 000.00
(Two Hundred and Eighty Eight Thousand);
4.3.
during the third year, Bolombe would
charge R320.00 (Three Hundred and Twenty Rand) per unit, at a fixed
monthly cost of R384 000.00
(Three Hundred and Eighty Four Thousand).
5.
PRASA
accepted Bolombe's tender proposal and, on 16 May 2016, it advised
Bolombe of its successful tender and that Bolombe would
be appointed,
subject to the conclusion of a written agreement, to provide the
following:
5.1.
1 200 portable ticket sales and
verification devices at a total cost of R10 620 000.00 (Ten Million
Six Hundred and Twenty Thousand
Rand) (including VAT); and
5.2.
the maintenance and support of the
portable ticket sales and verification devices at a total amount of
RS 064 000.00 (Eight Million
and Sixty Four Thousand Rand) (including
VAT).
6.
The
appointment of Bolombe would commence on 1 June 2016 and would endure
for a period of 3 (three) years.
7.
It
is common cause between the parties that:
7.1.
the appointment of Bolombe, as
aforesaid, followed due process and due compliance with PRASA's
procurement processes and policies
(There is no indication in the
papers filed in this application that the appointment of Bolombe did
not follow a competitive bid
process or that PRASA's tender process
which led to the ultimate appointment of Bolombe was not in
accordance with a system which
was fair, equitable, transparent,
competitive and cost effective. Bolombe's bid was obviously the most
competitive and accepted
by PRASA);
7.2.
. the agreement commenced on 1 June 2016
and it was lawfully terminated, by PRASA, with effect from 10
February 2019;
7.3.
Bolombe complied fully with its
obligations to provide 1 200 devices, in accordance with the RFP,
Bolombe's tender document and
the terms and conditions of the
agreement;
7.4.
Bolombe was paid the full contract price
in respect of the delivery of the 1 200 devices;
7.5.
PRASA has not taken any steps to review
or set aside the agreement. It is trite that contracts concluded
without complying with
prescribed processes are invalid. PRASA took
no steps to review or set aside the agreement. It obviously had an
interest in ensuring
that irregular processes are set aside and that
public funds are not irregularly dissipated and that fruitless and
wasteful expenditure
is curbed. Despite this interest, PRASA kept the
agreement alive until it was cancelled with effect from 10 February
2019;
7.6.
Bolombe and PRASA agreed that the fixed
monthly costs in respect of maintenance and support would be made in
terms of a written
payment schedule, forming part of the agreement;
7.7.
On 10 August 2017 a revised payment
schedule was agreed upon between Bolombe and PRASA {"the payment
schedule") and PRASA
was obliged to pay the following amounts
for maintenance and support to Bolombe:
7.7.1.
the
fixed monthly amount of R112 000.00 for July 2017 to October 2017;
7.7.2.
the
fixed monthly amount of R336 000.00 for November 2017 to June 2019;
7.7.3.
the
fixed monthly amount of R224 000.00 for July 2019 to October 2019.
8.
The
main dispute between the parties concerns Bolombe's entitlement to
claim payment in respect of the maintenance and support portion
of
the agreement.
9.
It
is Bolombe's case that it, in fact, provided certain maintenance and
support services in the form of training and that it followed
the
contractually agreed upon process to claim payment of the fixed
monthly maintenance costs in terms of the agreement. The agreement
provides for payment in terms of a payment schedule and Bolombe
states that it has complied with its obligations and is entitled
to
payment in terms of the payment schedule.
10.
It is PRASA's case that Bolombe would
only be entitled to payment, in respect of maintenance and support,
as agreed upon and as
set out in the payment schedule once and if
actual maintenance and support services were rendered by it. Put
differently, Bolombe
would not be entitled to claim any payment in
respect of maintenance and support when those services were not
actually rendered.
11.
Accordingly,
Bolombe relies on the express terms of the agreement to claim payment
of the fixed monthly costs for maintenance and
support and PRASA
relies on tacit alternatively implied terms of the agreement, which
would only entitle Bolombe to claim the fixed
monthly costs in
respect of maintenance and support, once and if actual maintenance
and support services were rendered.
12.
It is against the aforesaid background
that this Court is asked to interpret the agreement.
13.
PRASA filed a counter application
wherein it claims payment in the sum of R224 000.00 (Two Hundred and
Twenty Four Thousand Rand),
which it said it has paid in error to
Bolombe at the time prior to the agreement being terminated. Should
PRASA's interpretation
of the agreement be accepted, then it may be
entitled to repayment in the sum of R224 000.00 (Two Hundred and
Twenty Four Thousand
Rand).
THE
FACTUAL MATRIX
14.
Pursuant
to the conclusion of the agreement Bolombe commenced with issuing of
invoices and provided PRASA with invoices in respect
of the
maintenance and support portion of the agreement, for the months of
July 2016 to October 2016. The invoiced amount, in respect
of each
invoice respectively, was R112 000.00.
15.
It
is common cause that, during August 2017, the payment schedule, in
accordance with which PRASA would make payment to Bolombe,
was
revised and the payment schedule is annexed to the founding
affidavit, as Annexure "FA11". In considering this payment
schedule, no amount would be payable to Bolombe for the period July
2016 to June 2017, as this would obviously fall within the
warranty
period, as tendered. PRASA would make payment to Bolombe, commencing
on July 2017 through to October 2019.
16.
At
the time when the amended payment schedule was agreed upon, PRASA had
already made payment to Bolombe in the amount of R224 000.00
(Two
Hundred and Twenty Four Thousand Rand). This payment was made during
September 2016. It is common cause that the parties agreed
that the
amounts payable by PRASA to Bolombe, in terms of the payment
schedule, for the months of July 2017 and August 2017, would
be set
off against the amount of R224 000.00 (Two Hundred and Twenty Four
Thousand Rand) paid during September 2016.
17.
Bolombe then provided PRASA with
invoices, in accordance with the payment schedule, for the months of
July 2017 through to September
2017.
18.
No payment was made to Bolombe, pursuant
to PRASA receiving those invoices. The agreement provides that
payment shall be made in
terms of the payment schedule within 30
(thirty) days after receipt of Bolombe's invoice. The agreement sets
out the content which
ought to be incorporated in each invoice.
19.
On 10 January 2018 Bolombe's attorneys
addressed a letter of demand to PRASA, confirming the conclusion of
the agreement, fulfillment
thereof insofar as it relates to the
supply and delivery of the devices and claiming payment of an amount
of R1 120 000.00 (One
Million One Hundred and Twenty Thousand Rand),
which were, according to Bolombe, due, owing and payable as at 1
January 2018. This
amount is made up of the fixed costs payable in
respect of maintenance and support for the months of July 2017
through to January
2018 less, of course, the amount of R224 000.00
(Two Hundred and Twenty Four Thousand Rand), paid during September
2016.
20.
Bolombe's attorneys recorded that PRASA
stood in material breach of the agreement and demanded payment within
a certain period of
time. PRASA did not make payment as demanded.
21.
Bolombe continued to render invoices in
terms of the payment schedule and in accordance with the agreement.
22.
Bolombe claims that it, throughout,
tendered to perform its obligations in terms of the agreement,
insofar as it concerned the maintenance
and support of the devices.
This fact is disputed by PRASA, who claims that Bolombe failed to
attach any correspondence or written
confirmation to the founding
papers, which would support the allegation that Bolombe tendered to
perform.
PRASA
claims
that no maintenance and support services were provided.
23.
It is common cause that the agreement
remained in full force and effect, until such time as PRASA duly gave
notice of its intention
to terminate the agreement. The agreement
provides for this and that PRASA would be entitled to cancel the
agreement, on giving
120 (one hundred and twenty) days written notice
to that effect. The parties accept that the agreement came to an end
during February
2019.
LEGAL
PRINCIPLES
24.
The consequences of the lawful
termination of the agreement is that the rights and obligations of
the parties, in regard to further
performance of the agreement, come
to an end. Where a right to performance has accrued to a party, prior
to termination, that right
is not affected by the termination and may
be enforced.
[1]
25.
Where one party to a contract, without
lawful grounds, indicates to the other party, in words or by conduct,
a deliberate and unequivocal
intention no longer to be bound by the
contract he is said to "repudiate" the contract. Where that
happens, the other
party to the contract may elect to accept the
repudiation and rescind the contract. If he does so, the contract
comes to an end
upon communication of his acceptance of repudiation
and rescission to the party who has repudiated. The consequences of
this is
that the rights and obligations of the parties in regard to
the further performance of the contract come to an end and the only
forms of relief available to the party aggrieved are, in appropriate
cases, claims for restitution and for damages. Where, however,
a
right to performance under the contract has accrued to one party
prior to rescission, this right is not affected by the rescission
and
may be enforced despite rescission. This Rule was annunciated by
Greenberg J in Walkers Fruit Farms Ltd v Sumner
1930 T.P.D. 394.
In
the case of Crest Enterprises Ltd v Rycklof Beleggins (Edms) Bpk,
1972 (2) SA 863
A, it was held at 870G that:
"the Rule in the Walker case supra is
confined to cases where, prior to the rescission of
a
contract by one party's acceptance
of
the other's repudiation, there exists
a right which is accrued, due and enforceable as
a
cause of action independent of any
executory part of the contract."
26.
The
aforesaid principles of the Walker case and the Crest case is not
restricted to rescission upon repudiation, but also applies
to all
forms of breach culminating in cancellation.
[2]
27.
There
is also no reason, in logic or in principle, why the aforesaid
principles should not apply where a contract has been terminated
by a
party in terms of a right granted to such a party. Such termination
is indistinguishable in principle from a cancellation
by a party
following upon any breach of the agreement by the other party.
[3]
28.
The
principles governing the construction of a contract are well settled.
In the case of Sakhiwo Health Solutions (Limpopo) (Pty)
Ltd v MEC of
Health, Limpopo Provincial Government 2014 JDR 2524 (SCA) the
following was held:
"In ascertaining the meaning
a
Court must establish what the parties
intended, what the purpose of the contract was. In doing so,
a
Court must consider all of its
provisions and
may
not
isolate any
of
them
and consider them in vacuum
[4]
Even where there is no ambiguity in
a
contract in ascertaining what the
parties' intention is,
a
Court
must have regard to the factual matrix. There is
a
long line of cases that state that
the process of
interpretation
involves
a
consideration
of the factual matrix
[5]
Furthermore,
a
contract
must be interpreted so as to give effect to its purpose and to make
business sense
[6]
."
THE
INTENTION OF THE PARTIES
29.
The
RFP did not invite bidders to submit tenders in respect of varying
costs one would naturally associate with a maintenance contract.
It
required from bidders to include in their tenders a fixed costing
module in respect of a 3 (three) year maintenance and support
expense, inclusive of a warranty.
30.
In its tender document, Bolombe tendered
to supply portable devices with 4 (four) modes of operation, namely
idle mode, operator
mode (ticket selling mode), supervisor mode and a
maintenance mode. The maintenance mode would be used by Bolombe's
maintenance
technician which may be called out to repair a faulty
device from time to time.
31.
Bolombe further tendered that, as part
of its 3 (three) year support framework, it would also dispatch
manpower, should the need
arise, to empower PRASA personnel to
understand and manage the device in a proper manner. PRASA's IT teams
would also be given
proper training on preventative maintenance in
respect of the devices.
32.
Bolombe's tender offered that all
hardware and components would carry a 3 (three) year maintenance
contract. Should hardware and
components require maintenance, the
specific device ought to be handed to Bolombe which undertook to
repair the specific device
within 10 (ten) working days and would
provide a replacement device during that period in which the broken
device is out of service.
33.
Bolombe specifically excluded the
following from its proposed maintenance contract:
33.1.
reasonable wear and tear;
33.2.
unauthorised modifications of the
devices;
33.3.
failures caused by any network, cabling,
peripheral or telecommunications equipment, not in the original
specification;
33.4.
failures caused by lightning or any
other abnormal electrical feed;
33.5.
physical damage to units caused by user
abuse and misuse;
33.6.
abnormal wear and tear;
33.7.
exposure of the product to excessive
fluids;
33.8.
damage to a component or product; and
33.9.
provisions of external batteries and
main boar.
34.
Bolombe's tender documents further
proposed the following in respect of the 3 (three) year maintenance
and support:
34.1.
all devices which cannot be repaired on
site ought to be returned to Bolombe, at its workshop;
34.2.
Bolombe would undertake, at regular
intervals or at least every 3 (three) months, preventative
maintenance which consisted of those
activities required to ensure
that the equipment is kept in good operating condition. The
preventative maintenance procedures would
be executed at Bolombe's
workshop;
34.3.
should a device require maintenance at
Bolombe's workshop, it would be removed from the premises of PRASA
and, upon it being repaired,
would be returned to PRASA by Bolombe.
35.
As mentioned earlier, Bolombe tendered
to supply the maintenance and support at a fixed monthly cost per
unit. No mention is made
in Bolombe's tender documents that it would
only be entitled to claim this monthly fixed cost in respect of
maintenance and support
only once and if actual maintenance and
support services were rendered. The agreement also does not contain
any provision in respect
of a variable costing structure in respect
of maintenance and support.
36.
The agreement itself defines the
contract price to be an amount of R18 684 000.00 (Eighteen Million
Six Hundred and Eighty Four
Thousand Rand) (excluding VAT), payable
to Bolombe in accordance with the terms of the agreement.
37.
In turn, Bolombe would supply 1 200
devices and would further provide maintenance and support in respect
of the devices at all PRASA's
sites where the devices are deployed,
which are to include the following services:
37.1.
collection and delivery of faulty units;
37.2.
general maintenance;
37.3.
preventative maintenance;
37.4.
solution testing and professional/
technical advice; and
37.5.
skill transfer to the employees of
PRASA, which shall include maintenance of the devices.
38.
PRASA agreed that it would make payment
for the above services in accordance with the payment schedule within
30 (thirty) days after
receipt of an invoice from Bolombe.
39.
The agreement provides that Bolombe's
invoices would contain:
39.1.
Bolombe's VAT number;
39.2.
the full details of Bolombe and its bank
account;
39.3.
be a tax invoice, in accordance with the
requirements of the South African Revenue Services; and
39.4.
indicate the vendor number, provided to
it by PRASA.
40.
The parties agreed that Bolombe would
ensure that at least 1 100 devices are at all times at the PRASA
sites, where they are deployed
and are available for use in good
working condition. Should Bolombe fail to comply with this
obligation, it would be liable to
PRASA for a penalty amount
calculated at R200.00 (Two Hundred Rand) per device per day in
respect of such number of devices which
are less than the
contemplated 1 100 devices in service. This would be a penalty
payable by Bolombe to PRASA, but the total amount
due, as penalty,
would not exceed the maximum of the fixed monthly amount payable for
maintenance and support, as per the payment
schedule.
41.
It is clear from the RFP, Bolombe's
tender document and the agreement that Bolombe would render the
maintenance and support services
(as defined in the agreement) on an
"as and when" basis. It was certainly not anticipated that
each of the 1 200 devices
would require monthly maintenance and
support, as set out in the agreement. Only if one or more device has
broken down, would it
require the maintenance and support from
Bolombe. In that regard, Bolombe would provide a replacement device
to PRASA. If Bolombe
fails to do so and the number of active devices
fall below the 1 100 mark, Bolombe would pay a price, in the form of
the aforesaid
penalty. This penalty would obviously be set off
against any payment due as set out in the payment schedule.
42.
There is no evidence that Bolombe failed
in its duty to ensure that there would, at all times, be 1 100
devices which are in good
working condition and order at the
respective PRASA sites.
43.
PRASA's payment obligations, in respect
of maintenance and support services, were not dependent upon
Bolombe's actual rendering
of the maintenance and support services.
PRASA would be obliged to settle Bolombe's invoices, as set out in
the payment schedule.
The payment schedule does not provide that
payment of invoices would be subject to actual maintenance and
support services being
rendered. In turn, Bolombe would be obliged to
be willing and able to render the maintenance and support services,
as and when
required.
44.
There is no evidence to suggest that
PRASA. at any point in time, considered that Bolombe stood in breach
of the agreement, more
particularly, in breach of its obligation to
be willing and able to render maintenance and support services are as
and when required.
45.
The fixed monthly cost in respect of
maintenance and support services was obviously agreed upon, to avoid
any uncertainty. It retained
Bolombe as the preferred service
provider in respect of the maintenance and support of the devices.
46.
There is no evidence to suggest that
Bolombe failed to deliver any of the services, when called upon to do
so, or that it lacked
capacity to provide those services.
47.
Moreover, at the time when the payment
schedule was revised, PRASA agreed that the amount of R224 000.00
(Two Hundred and Twenty
Four Thousand Rand), which was paid during
September 2016, would be offset for Bolombe's invoices, dated July
2017 and August 2017.
48.
Clearly, this conduct demonstrates that
payment of Bolombe's invoices would be governed by the payment
schedule and one would have
expected from PRASA not to agree to the
offset of the September 2016 payment, if it was indeed a term of the
agreement that Bolombe
would only be paid as and when actual
maintenance and support services were rendered.
49.
The agreement further provides that,
should Bolombe fail to comply with its obligations, PRASA would be
entitled to remedial steps
which would include
inter
alia
the right to cancel the
agreement. The absence of any such steps taken by PRASA is indicative
of the fact that the payment regime
in respect of maintenance and
support services would be governed exclusively by the payment
schedule.
50.
PRASA contends that, should it be
obliged to make payment of Bolombe's invoices without Bolombe
rendering actual maintenance and
support services, such payment would
constitute fruitless and wasteful expenditure and would be struck by
the provisions of the
Public Funds Management Act ("the PFMA")
and would in effect be an illegality.
51.
I do not agree with this. PRASA received
a
quid pro qo
for
the fixed monthly maintenance and support costs. It retained the
services of a willing and able service provider who would render
those services on an "as and when" basis. That was the
nature of the maintenance and support portion of the contract.
It
would have been a different matter all together if there was evidence
before me which suggested that Bolombe in fact lacked
the capacity
and was in fact unwilling and unable to render maintenance and
support services. In those circumstances, the payments
claimed by
Bolombe could possibly be labelled as fruitless and wasteful
expenditure.
53.
In support of its counter application
for repayment of the amount of R224 000.00 (Two Hundred and Twenty
Four Thousand Rand), which
was paid to Bolombe in September 2016,
PRASA claims that such payment was made in error. However, when it
had the opportunity to
rectify that error, at the time when the
payment schedule was revised, it chose not to do so. PRASA elected
that the September
2016 payment would serve as payment in respect of
Bolombe's July 2017 and August 2017 invoices in the total amount of
R224 000.00
(Two Hundred and Twenty Four Thousand Rand). This conduct
is not supportive of the alleged error upon which the counter
application
is premised.
54.
Furthermore, it is totally unclear which
error underpinned the September 2016 payment. The deponent to PRASA's
affidavits does not
shed any light on this. It is unclear what the
nature of the error was, when it was detected and how it was
detected.
55.
Having considered the relevant factual
matrix and applying the legal principles, I am satisfied that Bolombe
is entitled to payment.
The express terms of the agreement do not
allow for the implied terms or tacit terms as contended for by PRASA.
56.
Bolombe's counsel applied from the Bar
for an amendment of the notice of motion. The effect of the proposed
amendment was to increase
the amount claimed in the notice of motion,
to include further invoices up to the time when the agreement
terminated. These invoices
would increase Bolombe's claim to a total
amount of R4 592 000.00 (Four Million Five Hundred and Ninety Two
Thousand Rand). PRASA
considered the proposed amendment and raised no
objection thereto. During argument, PRASA's counsel consented to the
amendment
of the notice of motion.
ORDER
57.
Having
considered the matter and the application for amendment, I make the
following order:
a.
the applicant's notice of motion, dated
30 October 2018, is amended as follows:
i.
by the deletion of the amount of R3 248
000.00, in paragraphs 1 and 2 thereof, and substituting same with the
amount of R4 592 000.00;
ii.
by including the following, after
paragraph 2.11 thereof:
"2.12
.
R336 000.00 at a rate of 10% per
annum, from 30 September 2018;
2.13. R336 000.00 at
a
rate of 10% per annum, from 31
October 2018;
2.14 R336 000.00 at
a
rate of 10% per annum, from 30
November 2018;
2.15. R336 000.00 at
a
rate of 10% per annum, from 31
December 2018."
b.
The respondent is ordered to pay the sum
of R4 592 000.00 (Four Million Five Hundred and Ninety Two Thousand
Rand) to the applicant,
together with interest thereon, as follows:
i.
R112
000.00 (One Hundred and Twelve Thousand Rand), plus interest thereon
at the rate of 10.25% per annum, from 31 October 2017;
ii.
R112
000.00 (One Hundred and Twelve Thousand Rand), plus interest thereon
at the rate of 10.25% per annum, from 30 November 2017;
iii.
R336
000.00 (Three Hundred and Thirty Six Thousand Rand), plus interest
thereon at the rate of 10.25% per annum, from 31 December
2017;
iv.
R336
000.00 (Three Hundred and Thirty Six Thousand Rand), plus interest
thereon at the rate of 10.25% per annum, from 31 January
2018;
v.
R336
000.00 (Three Hundred and Thirty Six Thousand Rand), plus interest
thereon at the rate of 10.25% per annum, from 28 February
2018;
vi.
R336
000.00 (Three Hundred and Thirty Six Thousand Rand), plus interest
thereon at the rate of 10.25% per annum, from 31 March 2018;
vii.
R336
000.00 (Three Hundred and Thirty Six Thousand Rand), plus interest
thereon at the rate of 10.25%per annum, from 30 April 2018;
viii.
R336
000.00 (Three Hundred and Thirty Six Thousand Rand), plus interest
thereon at the rate of 10.25% per annum, from 31 May 2018;
ix.
R336
000.00 (Three Hundred and Thirty Six Thousand Rand), plus interest
thereon at the rate of 10.25% per annum, from 30 June 2018;
x.
R336
000.00 (Three Hundred and Thirty Six Thousand Rand), plus interest
thereon at the rate of 10.25%per annum, from 31 July 2018;
xi.
R336
000.00 (Three Hundred and Thirty Six Thousand Rand), plus interest
thereon at the rate of 10.25%per annum, from 31 August 2018;
xii.
R336
000.00 (Three Hundred and Thirty Six Thousand Rand), plus interest
thereon at the rate of 10.25% per annum, from 30 September
2018;
xiii.
R336
000.00 (Three Hundred and Thirty Six Thousand Rand), plus interest
thereon at the rate of 10.25%per annum, from 31 October
2018;
xiv.
R336
000.00 (Three Hundred and Thirty Six Thousand Rand), plus interest
thereon at the rate of 1.0.25% per annum, from 30 November
2018;
xv.
R336
000.00 (Three Hundred and Thirty Six Thousand Rand), plus interest
thereon at the rate of 10.25% per annum, from 31 December
2018;
c.
the respondent is ordered to pay the
costs of the application;
d.
the respondent's counter application is
dismissed, with costs.
ACTING
JUDGE KILIAN
APPEARANCE:
Applicant's Counsel: advocate Grundling
Applicant's Attorneys: Van der Westhuizen
attorneys
Respondent's
Counsel: Advocate Maite
Respondent's
Attorneys: Mathie Jooma Sabdia Inc.
[1]
NASH v Gol den Dumps (Pty) Ltd 1985 (3) SA 1 (A)
[2]
Thomas Construction (Pty) Ltd (in liquidation) v Grafton Furniture
Manufacturers (Pty) Ltd
1988 (2) SA 546
(A) at 564b-d.
[3]
PBL Management (Pty) Ltd & Another v Telkom SA Ltd & Another
2001 (2) SA 313
(T).
[4]
Swart v Cape Fabrix (Pty) Ltd
1979 (1) SA 195
(A) at 202c – d.
[5]
KPMG Chartered Accountants (SA} v Securefin Ltd
2009 (4) SA 399
(SCA)
Bothma
Bathe Transport (Edms) Bpk v S Bothma & Seun Transport (Edms)
Bpk 2014 (2) SA 494 (SCA)
[6]
Masstores (Pt y) ltd v Murray & Roberts Constru ction (Pty) Ltd
& Another
[2008] ZASCA 94
;
2008 (6) SA 654
(SCA)