About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Mpumalanga High Court, Mbombela
SAFLII
>>
Databases
>>
South Africa: Mpumalanga High Court, Mbombela
>>
2019
>>
[2019] ZAMPMBHC 16
|
|
Pavebuild CC v F.J. Joubert & Sons CC (1605/2017) [2019] ZAMPMBHC 16 (9 April 2019)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA MPUMALANGA DIVISION
[FUNCTIONING AS THE
GAUTENG DIVISION MBOMBELA]
Case number : 1605/2017
1.
REPORTABLE:
YES
/ NO
2.
OF
INTEREST TO OTHER JUDGES:
YES
/NO
3.
REVISED
:
YES
4 April 2019
In
PAVEBUILD
CC
PLAINTIFF
CK2003/099769/23
And
F.J. JOUBERT & SONS
CC
DEFENDANT
JUDGMENT
JANSEN VAN RENSBURG AJ
INTRODUCTION
[1]. The plaintiff
is PAVEBUILD CC a close corporation with registration number
CK2003/099769/23 properly registered
in terms of the statutes
of the Republic of South Africa with address plot 1[…] W[…]
R[…] E[…] Mpumalanga.
[2]. The defendant
is F.J. Joubert & Sons CC 2009/016009/23 a company properly
registered in terms of the statutes of
the Republic of South Africa
with address Stabilis Inc Pro Forum Building, Van Rensburg Street 5
Nelspruit, Mpumalanga. The defendant
in the meantime converted to a
company.
LEGAL ACTION BETWEEN
THE PLAINTIFF AND THE DEFENDANT
The plaintiff
[3]. On 19
September 2013 the plaintiff issued a summons against the defendant
for the non-payment of the following amounts
for work done –
(a). Claim one :
Riverside X 13 Nelspruit. Outstanding amount due to the
plaintiff settled at R 160 528-00 + VAT.
(b). Claim three :
Ingwe Mall Malelane. Outstanding amount due to the plaintiff settled
at R 35 470-27 + VAT.
(c). Claim four :
Construction of Wall at SAPPI Ngodwana. Outstanding amount due to the
plaintiff settled at R 135 547-80
+ VAT.
(d). Claim five :
Erecting of a wall at the Grove Nelspruit. Outstanding amount due to
the plaintiff settled at R 59 796-63
+ VAT.
[4]. Based on the
above I am not going to deal with the initial arguments regarding the
contracts entered into between the
plaintiff and the defendant and
the contents of those contracts. The point of departure will focus on
the only outstanding aspect
namely the wall at Makro which consist of
two elements namely the claim by the plaintiff and the counter claim
by the defendant.
[5]. The defendant
admitted the following amounts due and payable to the plaintiff
regarding claim 2 excluding the cost of
the construction of the wall
at Makro Nelspruit [this will be dealt with later in the judgment]
-
(a). Rings : R 67
200-00 plus VAT.
(b). Civil work: R
24 460-00 plus VAT.
(c). Edging: R 22
400 – 00 plus VAT.
(d). Repair edging:
9 028-00 plus VAT.
(e). Civil work: R
95 040-00 plus VAT
THE ISSUE IN DISPUTE :
THE REMAINDER OF CLAIM TWO : THE CONSTRUCTION OF THE WALL AT MAKRO
NELSPRUIT
[5]. In January
2011, the plaintiff handed a quotation to the defendant who included
the same standard conditions as that
of claim one to perform work for
the defendant at Makro Nelspruit. The quote was accepted by mr K.
Joubert as an authorised representative
on behalf of the defendant.
[6]. The quotation
was for the construction of a ‘
loffel brick wall’
[the wall] on the outskirts of the main construction site over a
specific distance to act as a barrier on the side of the construction
terrain. The construction wall would consist of specific ‘
loffel’
cement bricks which would be placed in a specific order and
format and ground covered with a woven wrap material (something like
a big bag filled bag at the back of the loffel cement bricks) which
would be compacted to secure the ground on the inside of the
wall.
The wall would be built at an angle of 60 degrees according to the
specifications of the designer, mr Farraris. The plaintiff
completed
the construction of the wall and other civil engineering works for
the defendant.
[7]. The
construction of the wall was overseen and monitored by the defendant
in person, personnel of the defendant and the
responsible engineer
for the complete site on which the whole Makro complex was
constructed.. No complaints were received from
the defendant or any
other persons during the construction of the wall. Sometime after the
plaintiff handed over the construction
site of the wall to the
defendant, a huge crack appeared on the surface of the parking area
behind the wall.
[8]. The plaintiff
previously warned the defendant of the incorrect digging of a trench
for a storm water system as well as
the cracks in the tar surface on
top of the wall being the edge of the parking area close to the face
of the wall. Over the period
Dev\ember 2011 to January 2012 it so
happened that there was excessive rain in the Nelspruit. The crack on
the parking area was
not covered, repaired covered to prevent rain
from entering at the back of the wall. After the plaintiff handed
over the wall to
defendant and left the site, the defendant refused
to pay the plaintiff the outstanding amount due and owed to the
plaintiff.
[9]. The amount
outstanding was R 969 606 – 17 + VAT.
COUNTER CLAIM BY THE
DEFENDANT TO THE PLAINTIFF’S CLAIM – MAKRO NELSPRUIT
[10]. The
defendant included a counter claim for money due by the plaintiff to
the defendant for damages and repairs
to the ‘
Makro wall’
to the value of R 2 050 557 - 63 + VAT caused purportedly by the
poor quality of work done in the construction of the wall by the
plaintiff and which the defendant claimed to have to be rebuild as
the wall ‘
collapsed’.
THE REMAINING ISSUE IN
THIS MATTER : CLAIM FOR CONSTRUCTION OF THE WALL AT MAKRO IN
NELSPRUIT
[11]. The
only issue between the plaintiff and the defendant that remained is
the claim and counterclaim by the parties
referring to the
construction of a wall at Makro in Nelspruit. The issues for this
court to determine are the following -
(a). What amount is
due by the defendant to the plaintiff; if any?
(b). Was there a
valid counterclaim by the defendant against the plaintiff based on
unprofessional work done by the plaintiff?
EVIDENCE IN CHIEF BY
THE PLAINTIFF
FIRST WITNESS : MR
RUTHMAN
[12]. Mr
Ruthven is the owner of the plaintiff which was contracted by the
defendant to do some civil engineering and
building/construction work
for the defendant. The witness has a civil engineering diploma, had
worked for ConCor for a number of
years and has been installing storm
water and drainage pipes for close to 18 years. He has extensive
knowledge of building walls
such as the ones contracted for at SAPPI
Ngowana and Makro in Nelspruit. He has the skills and knowledge to
undertake civil engineering
works and to level, fill and pave large
areas.
[13]. The
plaintiff supplied the defendant in each of its claims against the
defendant with a written quotation which
included the work to be
done, an amount due for the work done and some standard conditions
applicable in executing the work for
the defendant. The standard
conditions of the quotations were as follows –
(a). Payment by the
defendant to the plaintiff was to be affected within 30 days of the
completion of the work done by the
plaintiff based on monthly
certificates.
(b). The plaintiff
testified that it included a rate of 2% interest per month on
outstanding payments but it has never enforced
this clause on the
quotation as the plaintiff was relying on the defendant for work.
This interest was abandoned by the plaintiff
during
evidence-in-chief.
(c). Quantities of
work completed would be provisional and subjected to re-measurement.
(d). Standard JBCC
conditions would be applicable on this quotation for the work to be
done by the plaintiff.
(e). Standard
quotations of the plaintiff would be valid for 30 days.
(f). Specific
reference in the contracts were made that no retention was included
in the quotation.
[14]. The
defendant was mostly represented by mr K.Joubert, who verbally
accepted the quotation by the plaintiff by
means of a telephone
conversation and an order to continue with the work so quoted. In
some instances, the defendant would verbally
request the plaintiff to
do more work than quoted from which was included in certificates for
payment.
(a). The defendant
did not object to any of the conditions set by the plaintiff in its
quotation, either in writing or verbally.
(b). The work done
by the plaintiff was regularly inspected by personnel of the
defendant and by engineers. At no stage was
any problems encountered
or the plaintiff instructed to rectify or correct the work in
progress.
(c). The witness
indicated that the defendant, with reference to mr Joubert, was
informed that work has been completed and
that the plaintiff was
evacuating the site. Nobody came to ‘sign off’ the site
and the plaintiff left the site.
(d). Allegations of
the misuse of the woven material and the incorrect placing of the
material were denied. The photographs
shown to the court is a clear
indication of the material used, the method of placing of the
material, the compacting of the material
and the positioning of the
bricks in the correct order and depth. Various photographs were used
to deny this allegation by the
defendant.
(e). The wall at
Makro was constructed according to the drawing by mr Farraris who was
responsible for the inspections and
‘
signing off
’
of the wall being completed.
[15]. With
regard to the Makro construction site it the plaintiff testified that
he was instructed to build a wall with
specific instructions by the
designer, mr Farraris. The plaintiff received the terrain plan and
instructions and proceeded to build
the wall at Makro Nelspruit. The
specifications of the wall was that it should be built at an angle of
60 degrees, contained some
specific ‘
loffel bricks’
which had to be placed in a specific order and format, covered with
some form of woven mat of a specific specification which would
be
filled and compacted. The plaintiff constructed the wall according to
the specifications of the designer. [See page C1 of the
Plaintiff’s
bundle].
[16]. The
court was presented with a diagram of the design of the wall and
number of photos which showed the process
followed in the
construction of the wall. The photographs showed the way in which the
‘
loffel bricks’
was laid, filled, compacted and
staggered together. The binding material was included in the
wall as specified by the designer
Mr Farraris. The plaintiff has
surplus stock which he used and which was then supplemented with ‘
new
stock’.
Off-cuts were included into the wall instead of
throwing it away. The ‘
off-cuts’
had no influence
on the wall as the ‘
off-cuts
’ does not qualify as
‘
rubble’.
[17]. The
evidence by the plaintiff was that the construction site was
frequently visited by personnel of the main contractor,
the defendant
and the designer during the construction of the wall. Persons
overseeing the construction of the wall were Allen
Pone, Silvo
Farraris, Kobus Joubert and Arend vd Berg. At no stage did anyone
complained to the plaintiff about the construction
of the wall. The
wall was subsequently completed by end of 2011.
[18]. The
defendant instructed the plaintiff to do some additional construction
work such as the filling of gaps and
the compacting of the area
behind the wall.
[Photo 10,13 and 14].
[19]. After
the wall was handed over to the defendant, the company of John
Walters came and dug a 4 meter deep trench
behind the wall to install
a storm water drainage system. John Walters was not present as he was
overseas but oom Dawid was present.
The plaintiff informed the
defendant (Arend vd Berg) of the effect of this construction in that
the ground beneath and above this
drainage pipes were incorrectly
done. The defendant did not respond to the warnings by the
plaintiff.
[Photo 22,23, 24, 29, 36,
37 and 57 of bundle A].
[20]. A fence
was erected on the perimeter juts off the tared parking area on the
compacted area.
[Photo 20, 22, 23,38 and
39 of bundle A].
[21]. An
irrigation system consisting of a 50 mm water pipe was installed
behind the wall to irrigate plants on the
area.
[Photo 25 of bundle A].
[22]. During
November 2011 the plaintiff informed the defendant that the paved
area behind the wall ‘
cracked open’
and the
plaintiff was accused of not having compacted the area as it should
have been. The defendant accused the plaintiff of unprofessional
workmanship and the defendant again retained 10% of the quoted amount
payable to the plaintiff. From the photographs disclosed
by the
plaintiff, the cracks in the parking area, the fence and the
irrigation pipe was not within the area of which the plaintiff
was
responsible for but on the top of the wall.
[Photo 30, 32, 43 ,44,
58,59,61,62,70 and 68 of annexure A].
[23]. The
defendant supplied the ground for the filling and compaction of the
wall and the area behind the wall and
the adjacent areas. This ground
was stockpiled on the terrain. The plaintiff conducted three tests on
the construction site which
test results were handed to the engineer
in charge of the construction of the wall. These teste were referred
to as DKP tests.
The plaintiff received no complaints regarding these
test results.
[24]. The
representatives of the plaintiff being Arend vd Berg and Kobus
Joubert were present on the construction site
on a daily basis. The
engineer would come and go but the personnel of the defendant were
the primary entity and persons who would
exercise inspections and
quality control over the plaintiff in constructing the wall.
[25]. The
plaintiff referred to the photographs disclosed by the plaintiff to
the defendant which show the stages of
the construction of the wall
and clearly showed the ‘
benching’
, the material
used as well as the positioning and overlap of the ‘
loffel
bricks’.
[Photos photos 3 to 10,
11,15 to 19 of bundle A]
[26]. Tests
on the density of the ground were performed which met the
requirements of the design and the compaction
of the wall.
[Page 97 of the bundle by
the plaintiff].
[27]. A final
certificate was issued by the designer mr Farraris that the wall was
completed. [Page 85 of the plaintiff’s
bundle].
[28]. The
witness confirmed that the plaintiff made use of the ‘
nuclear
density metering device’
to measure the density of the
ground and the compaction. The results of the tests as well as those
of the DKP tests were sent to
mr Farraris.
[29]. Mr
Ruthman testified about the construction of the wall including the
design, the benching, the cutting away of
the face of the wall to get
to a 60
0
angle, the filling of the ‘
bidum’
,
the compaction of the layers and the preparation and execution of the
final stages of the construction of the wall including the
people
present on site on a daily basis whilst the construction of the wall
was in progress.
[30]. Finally
the witness confirmed the requests to the defendant to inspect the
wall and the warnings of the storm
water drainage system behind the
wall. The witness confirmed that the material used in the
construction of the wall was according
to the standards set and that
the invoices reflected the quoted amount for the construction of the
wall. The ‘
bidum’
was placed in such a position
that anybody could see the material. [Photo 28 of bundle A]. The
witness denied any fraudulent actions
in the construction of the
wall.
CROSS-EXAMINATION OF
MR RUTHMAN
[31]. The
plaintiff confirmed that he did build the wall according to
specifications supplied by mr Farraris. The plaintiff
confirmed that
mr Joubert, Arend vd Berg, Allen Payne and the engineer was on a
daily basis present on the construction site and
that none of them
ever complained about the construction of the wall. Mr Farraris would
visit the site once every two weeks to
inspect the wall and to give
instructions, if needed.
[32]. The
plaintiff testified that the wall at Makro was constructed according
to the design by mr Farraris. The defendant
was informed that the
wall was completed and no one came to inspect the wall.
[33]. The DLP
tests were performed by Letaba lab for analysis to verify the
compaction of the ground and surface areas.
[34]. The
plaintiff does not have knowledge of who filled the cracks is the
parking are adjacent to the wall. The plaintiff
denied the allegation
that the poor construction lead to the purported damage to the wall.
The plaintiff confirmed that he reported
the digging of the trench
behind the wall, the installation of the water pipe and the
consequent filling of the trench to Arend
vd Berg, John Walters,
Allemn Payne and oom Dawid. There was no response to his reports or
the warnings in this regard.
[35]. The
plaintiff denied unprofessional work regarding the preparation, the
benching, the filling and the placing
of the ‘
loffel
bricks’.
The wall was certified by mr Farraris and the
plaintiff withdraw from the construction site as the work was
completed.
[36]. After
completion of the wall, the plaintiff never went back to the wall at
Makro.
[37]. The
defendant refused to make payment for the outstanding work done by
the plaintiff.
SECONMD WITNESS
: EXPERT ON BEHALF OF THE PLAINTIFF: PAUL NICKHOLSON
[38]. The
witness is a civil and structural engineer and has 30 years of
engineering experience. The witness has experience
of the ‘
type
of walls
’ designed by mr Farraris.
[39]. The
witness testified that should a trench of up to 4 meters deep be dug
behind the wall, such as the present
one, and the trench is not
properly compacted, cracks such as depicted on the photographs would
occur. The example was used where
the ground of a grave has not been
compacted; the ground would ‘
fall in’
so to speak
which would create further problems. The digging of a trench such as
this one, would also contribute to the weakening
of the compacted
area behind the wall.
[40]. The
witness read the report by mr Farraris and confirmed that mr Farraris
would not have ‘
signed off
’ the wall if he was not
satisfied with the construction of the wall. From the photos taken of
the trench, some white material
is clearly visible which would be the
material used to construct the wall.
[Photo 24 of bundle A].
[41].
According to the witness the trench should not have a negative effect
on the ‘
benching and the construction of the wall’.
One aspect that the witness testified about was that if the
compaction of the trench was not done properly and the leaking
irrigation
pipe, this could have a negative effect on the compacted
soil behind the wall.
[42]. The
witness testified about the material used to construct the wall and
the precautions including quality control,
the design and the
dimensional line and intervals of the wall. The ‘
short
pieces’
included in the wall have no effect on the quality
of the wall.
[43]. The
witness referred to the DKP tests conducted on the wall which was
indicative of the ‘
carrying capacity of the ground’
.
The witness confirmed that the plaintiff made use of the ‘
nuclear
density metering device’
to measure the density of the
ground and the compaction. These tests were regularly done and sent
to mr Farraris (the designer of
the wall).
[44]. The
witness confirmed that water would be able to enter the area behind
the wall through the huge cracks on the
parking area. This would have
a negative effect on the filling, the storm water trench and pipe as
well as the effect on the wall.
CROSS-EXAMIANTION OF
THE EXPERT
[45]. The
witness testified about the instalment of the irrigation pipe on top
of the wall. The witness could not give
an estimation of the
penetration of the water as it differs from clay to sand. A dense
capacity of 90% is only an indication of
the capacity of the
compacted soil and not of the water content. The witness testified
that the white material depicted on the
photographs could have been
that of the material used for the benching and the erection of the
wall.
This concludes the
evidence by the plaintiff
EVIDENCE BY THE
DEFENDANT
FIRST WITNESS : MR
FARRARIS (THE DESIGNER OF THE WALL)
[46]. This
witness designed the wall at Makro Nelspruit. The witness referred to
the design of the wall which is found
on page 133 of bundle B of the
defendant. The wall is designed at a 60
0
angle with a
height varying from 7,5 to 10 meters. The first compacting is 2,1
meters x 750 mm x 1.8 meter at the base of the first
‘
bag of
sand’.
The final layer of ‘
bags of sand’
at
the top of the wall is 1,4 meter x 1meter x 1 meter. As the wall is
constructed the length of the ‘
sand bags’
shorten
the higher the wall is build.
[47].
Referring to bundle B photo 142 the witness confirmed that the
‘
bidum’
[the white material used for the ‘
sand
bags’
] was correctly placed in position by the plaintiff.
The witness referred to the project engineers L&S engineers who
would report
back to the witness via emails, photographs and other
reports by the engineers.
[48]. The
witness confirmed that he inspected the wall at the ‘
two
third stage of construction’.
At no stage was it necessary
to doubt the quality of the construction of the wall by the
plaintiff. The witness confirmed that the
results of the compaction
tests were sent to him on a regular basis. The tests of the plaintiff
and the Laboratory were sent to
the witness at the same time and the
reading and results were the same. The witness inspected the wall
after completion and the
witness was satisfied with the end result.
The witness issued a certificate to L&S engineers who were the
consulting engineers
of the whole project.
[49]. The
witness testified that the plaintiff had the necessary skills and
knowledge to construct the wall at Makro.
[50]. The
witness would inspect the construction of the wall at the beginning,
thereafter when the wall reached the
‘
one third of
completion’
and again at ‘
two thirds of
completion’
and a final inspection after the wall was
completed.
[51]. The
witness confirmed that in December 2010 L& S did DCP tests
in the trench behind the wall [dug by
Walters] and that the results
showed inadequate compaction of the soil below the storm water pipe.
The witness personally
saw the results of the tests which was poor
and below the standards set for such trenches and storm water pipes.
The trench was
dug about 3 to 4 meters behind the wall that the
plaintiff constructed. The wall did not ‘
buckle or had any
cracks’.
[52]. The
witness confirmed that the information contained in the letter dated
7 March 2012 referring to the poor compaction
above the storm water
pipe resulted in cracks in which the water flow saturated the soil
and effected the filling below the pipe
[Page 93 of bundle A]. This
in itself was alarming as the wall could be compromised. The filling
below the pipe was than the required
‘
G7 quality ‘
of filling’
[53]. The
witness confirmed that he wrote a letter dated 7 March 2012 to mr
Allen Payne referring to the inadequate
compaction of the soil in the
storm water trench. [Page 99 of bundle A]. When the wall was later on
inspected, the witness saw
the irrigation pipe leaking and what he
reported it, the water was shut down.
[54]. The
witness testified that when the wall was ‘
repaired’
at
some debt no ‘
bidum’
was present. The witness does
not know who took the photos or what happened prior to the photos
being taken [Bundle B – photos
by defendant].
[55]. The
witness confirmed that he saw the ‘
bidum’
sticking
out on the face of the wall. The witness testified that there was no
‘
bidum
’ in some part of the wall.
CROSS-EXAMINATION
[56]. The
witness confirmed that he relied on other people in constructing and
control over the construction of the
wall. Mr Joubert informed the
witness that mr Ruthman was reliable to do the job.
[57]. The
witness confirmed that L&S was the engineers in charge of the
construction site, that the site engineer
was represented by Allen
Page, that the defendant was represented on site by mr Joubert and mr
Arend vd Berg and other personnel
was present during the construction
of the wall..
[58]. The
witness was satisfied with the results of the compaction tests done
by Letaba Lab.
[59]. The
witness was not present when the trench was dug and does not know
anything about it.
[60]. The
witness testified about the report he submitted when the wall was
completed [Bundle B page 142]. The witness
confirmed that the John
Walters dug the trench for the storm water pipe and that the trench
was incorrectly compacted. The witness
again referred to the 50 mm
irrigation pipe leaking water when he arrived at the site.
[61]. The
witness testified that there was only 2 – 3 layer of which the
‘
bidum
’ did not stick out in front of the face of
the wall beneath the ‘
loffel bricks’.
Nobody could
X-ray a wall to see all the levels of the constructed wall. The
witness confirmed that ‘
bidum
’ was sticking out
from under the layers of ‘
loffel bricks’
in the
wall and which was visible from the outside on inspection.
RE-EXAMINATION
[62]. The
witness confirmed the drawing of the wall. The ‘
backfilling’
was done by the defendant. The witness has no knowledge of the trench
and the fence that was erected at the back of the wall.
SECOND WITNESS : ME
PREDDY
EVIDENCE IN CHIEF AND
CROSS-EXAMINATION
[63]. The
witness testified about the administration in the office of the
defendant. Her evidence did not contribute
to the case between the
plaintiff and the defendant. The witness was not cross-examined by
the plaintiff.
THIRD WITNESS : MR
JOHN WALTERS
EVIDENCE IN CHIEF
[64]. The
witness testified that he was the person who dug the trench behind
the wall at Makro. After the rain damage
he then ordered that the
trench be reopened to establish whether the damage was caused by the
storm water system. The trench was
then filled and this was the end
of the evidence by the witness. In December 2011 the witness was
responsible for the sealing of
the cracks in the parking area when
instructed by Allen Payne of L&S engineers.
[65]. The DCP
tests were performed some 2 meters under the under the storm water
pipe; the results of the tests were
insufficient and the witness had
to pay the cost for the tests. The witness confirmed that he never
saw mr Farraris on site. Mr
Arend vd Berg was in charge. The witness
saw Allen Payne a few times on site and also saw one Peter Bauer on
site
[66]. The
witness confirmed that the ‘
bidum’
was folded over
at the top of the wall.
[Bundle A photo 24]
CROSS-EXAMINATION
[67]. The
witness could not confirmed that mr Ruthman did indeed requested that
oom Dawie Smit be called when the trench
was refilled. The witness
could not confirm that the trench was compacted with a ‘
back
actor’
as the witness was not present under these
circumstances
.
[68]. The
witness confirmed that Arend vd Berg was permanently on site. Mr
Farraris, mr Joubert and other personnel
of the defendant was
frequently present on the construction site.
RE-EXAMINATION
[69]. The
witness confirmed that he reported to Arend vd Berg.
THIRD WITNESS :
MR JOUBERT
EVIDENCE IN CHIEF
[70] Mr
Joubert testified on behalf of the defendant. Mr Joubert is the owner
of the defendant and mr Joubert
is with respect not an expert on any
of the evidence given regarding the construction of the wall at
Makro.
[71]. Mr
Joubert referred to some ‘
invoice’
for the repair
of the wall but the invoice was merely a reflection to purported work
done, the hire of equipment and an amount for
damages suffered by the
defendant as a result of the work done by the plaintiff. According to
the witness 50% of the wall had to
be rebuilt.
[72]. The
only reference to any
quantum
of damages suffered by the
defendant was a letter dated 31 August 2012 from Mr Joubert to the
plaintiff indicating ‘
cost incurred to rebuild the collapsed
wall at Makro Nelspruit’
[73]. Mr
Joubert could not produce any photographs to substantiate any of the
claims of a ‘
collapsed wall’.
CROSS-EXAMIANTION
[74]. It was
put to the witness that there was no evidence that the wall
’
collapsed’
in the form of photographs indication
and damages or wrong doing by the plaintiff in the construction of
the wall.
[75]. It was
put to the witness that the purported damages referred to was
inadequate in its descriptions, quantities
and nothing more
could be made from the purported damages suffered by the defendant.
It was put to the witness that the witness,
mr Arend vd Berg, mr
Farraris and mr Allen Pane frequently visited the site where the wall
was constructed and that there were
no complaints about the method or
manner in which the plaintiff constructed the wall. It was put to the
witness that he is not
an expert on ground compaction and density and
cannot testify thereabout.
RE-EXAMINATION
[76]. The
witness confirmed the procedure to be followed by the plaintiff as to
the requests and documentation required
for any payments to be made
to the plaintiff.
FOURTH WITNESS : MR
AREND VD BERG
EVIDENCE IN CHIEF
[77]. The
witness was in charge of the construction site where the defendant
constructed and executed civil engineering
works as a sub-contractor.
The witness took photograph 49 in bundle B and one Marius Mostert was
contracted to repair the wall.
According to the witness a part of the
wall measuring 3 meters from the top was removed. The witness
testified that there was no
‘
benching’
as required
from the design at this point.
[72].
Reference was made to photo 45 of bundle B and the witness testified
that he took the photograph and that there
was no ‘
bidum’
for 1,8 meter.
[73]. The
witness testified that it was possible that when the trench was dug,
that the ‘
bidum
’ could have been pulled out.
[74]. The
witness testified that there was a crack in the parking area which
could be a contribution of the construction.
CROSS-EXAMIANTION
[75]. The
witness confirmed the DKG tests that was conducted on the terrain to
determine the carrying capacity of the
ground formation.
[76]. The
witness confirmed that the defendant prepared the ‘
face of
the wall
’.
[77]. The
witness confirmed that he was present on a daily basis and that if
someone would not execute any work according
to plans or
specifications, he would reprimand that person and report it to his
superior’s. He never had to reprimand the
plaintiff in any way
whilst the wall was constructed.
[78]. The
witness confirmed that mr Farraris, Allen Payne and mr Joubert as
well as other personnel was on the construction
site and that quality
control was attended to. The witness does not know the quantity of
‘
bidum’
that was used in the wall.
RE-EXAMINATION
[79]. The
witness confirmed that the plaintiff did some compacting of the
ground behind the wall for the defendant.
A hug roller was used to
compact the ground.
EVALUATION OF THE
EVIDENCE BEFORE THE COURT
THE PLAINTIFF
[80]. The
plaintiff alleges that it -
(a). Constructed
the wall according to the design and specifications received from mr
Farraris.
(b). The plaintiff
erected the wall accordingly and when it was completed handed the
wall over to the defendant without any
inspection by the defendant.
(c). That there
were personnel of the defendant and L&S engineers on site on a
daily basis and that no complaints were
mentioned to the plaintiff.
(d). The plaintiff
referred to oom Dawie, Allen Payne and Arend vd Berg who were
informed of the potential problems of the
trench for the storm water
system but yet no one did anything regarding the warnings or the
compaction of the trench.
(e). The cracks in
the surface of the parking area also went unnoticed for some time.
(f). That during
the period December 2011 and January 2012 Nelspruit had excessive
rainfall read with the crack on the parking
area behind the wall and
the possible damage to the wall. Nobody paid attention to the
warnings or did anything to rectify the
crack at that stage as it was
already closing time for December 2011.
(g). That mr
Farraris would visit the construction site at some stage during the
construction of the wall. At no stage did
mr Farraris complained
about anything in this regard.
(h). That the
engineer of the main contractor was constantly present on the
construction site.
(i). That mr Arend
vd Berg was the site manager of the defendant and that he was present
on the site to oversee the construction
of the wall.
(j). That there was
50 mm irrigation pipe and a fence erected at the top of the wall
after completion thereof.
(k). That mr
Ruthman was not present when the wall was partially ‘
demolished’.
(l). When the wall
was handed over to the defendant no damage was visible on the wall.
(m). That the tests
conducted on the compaction was higher than the required standard and
requirements.
(n). That the
trench and the construction at the top of the wall had an influence
on any purported damage caused to the wall
after the wall was handed
over to the defendant.
(o). The plaintiff
had no further responsibility towards the defendant after the wall
was handed over. Any purported damage
would be at the risk of the
defendant.
(p). That the wall
was signed off by mr Farraris and this concluded the responsibility
of the plaintiff towards the defendant.
THE DEFENDANT
[81]. The
defendant alleges that the plaintiff did not construct the wall
according to specifications and that some
fraudulent actions caused
the damage to the defendant in rebuilding a portion of the wall. As a
result of the wall ‘
collapsed’
and the defendant
filed a counter plea for the repair work done on the wall.
EVALUATION OF THE
ISSUES BEFORE THE COURT
[81]. The
defendant alleges that the plaintiff did not construct the wall
according to the design by the designer and
that as a result thereof
the defendant suffered damages.
[82]. What is
interesting is that mr Farraris (the designer of the wall) relied on
other people to exercise ‘
quality control
’ over
the construction of the wall and only visited the construction site
on intervals. The persons who oversee the construction
of the wall
were the engineer of the main contractor mr Allen Payne, mr Arend vd
Berg and mr Kobus Joubert. From this evidence
it is clear that ‘
all
eyes were on the wall’
so to speak. The photos referred to
clearly indicate the method and procedures used by the plaintiff to
construct the wall.
[83]. When
the design of the wall is analysed it is clear that the higher the
wall is build, the ‘
shorter’
the ‘
bidum’
bags get referring from the face of the wall to the back of the wall.
It is clear from the photos referred to where the trench
is shown
that there are ample ‘
white material’
which is
‘
bidum
’ visible being excavated during the digging
of the trench for the storm water system. It is my view that the
explanation
by mr Farraris as to ‘
tearing of material
instead of pulling out may be incorrect’.
Mr Farraris could
not explain the white material on these photos, nor was he requested
by the defendant to give an opinion. The
plaintiff testified that he
inserted the ‘
bidum
’ as per the design which leads
to the top of the wall and which is within the area where the trench
was dug.
[84]. What is
more interesting is that the allegations of no ‘
bidum’
was placed in certain layers of the wall stand to be evaluated
with caution -
(a). Firstly, the
plaintiff was not present when the wall was partially demolished and
(b). Secondly the
purported little piece of material placed under a ‘
loffel
brick
’ seems to be out of the ordinary.
[85]. Why
would this be the only one piece of material and the only ‘
loffel
brick
’ to be photographed?
[Photo 178 and 179 of the
defendants bundle]
[86]. None of
the photographs disclosed by the defendant showed a ‘
collapsed
wall’
as referred to in the letter indicating the repair
cost of the defendant. Photograph 174 and 175 shows a constructed
wall without
any damages.
[87].
Photograph 176 of the defendant shows an incline in the wall. Nowhere
was the wall further excavated to proof
that no ‘
bidum’
was included into the wall. [See also photograph 182 by the
defendant]. This was not dealt with by the defendant in its evidence.
[88]. There
was no argument that no valid contract to construction of the wall
was concluded by the plaintiff and the
defendant which was reduced in
writing [the quotations] and the verbal acceptance of the quotation
by the defendant [via telephone
call].
[89]. The
plaintiff’s version is that a contract has been entered into,
partially in writing [the quotation] and
the acceptance by the
defendant with other instructions to execute other civil engineering
work on the different terrains [telephonically].
Other instructions
would follow as the wall was constructed. The court is not
going to enter into the fine print of the contracts
as the plaintiff
and defendant had settled four claims and the only claim outstanding
is based on money due and payable to the
plaintiff by the defendant
and the counterclaim of the defendant against the plaintiff. In
referring to the Plaintiff’s quotations
accepted by the
defendant and in the lack of any other indications on the quotations,
if is this courts view that there has indeed
came into force a
contract between the plaintiff and the defendant based on the
conditions set forth on these quotations.
[90]. The
following is clear from the photos discovered and presented to the
court –
(a). That the
plaintiff had indeed executed the building of the wall in accordance
with the specifications as instructed by
the engineer in charge of
the wall.
(b). That the
allegations of the plaintiff not acting professionally are unfounded.
(c). That the
photos clearly show the woven mat to be used in the construction at
the beginning and at the end of the construction
of the wall.
(d). That the
photos clearly show that the allegation that the woven mat
(bidum)
was not used as prescribed, is factually incorrect. The allegations
that the ‘
bidum’
was only used for some 500 mm are
incorrect as the photos clearly indicate that the ‘
bidum’
was used as prescribed and required. There is no evidence that
the wall was rebuilt due to being ‘
collapsed and
demolished
’.
(e). The plaintiff
contacted the defendant regarding the effect of the storm water
pipes installed close to the back
of the wall which was not his
responsibility and further that whatever water leaks or damage was
caused by the storm water pipes,
was caused after the plaintiff
handed over the construction site to the defendant.
(f). That over the
December 2011 to January 2012 period there was excessive rain in the
area. The cracks in the tar on the
parking area was already ‘
opened’
and the defendant did not repair the cracks or even just filled it to
prevent damage, if any to the wall. The cracked area was
not the
responsibility of the plaintiff.
·
The plaintiff was requested to compact a
terrain on the upper side of the wall by using a heavy roller which
area was inside the
‘
zone of the
defendant’
. This compaction of the
surface behind the wall had nothing to do with the wall, its
construction or its purpose.
[91]. Nowhere did
the defendant disclosed photos of the ‘
collapsed wall’
as described in the letter to the plaintiff. From the photos
discovered by the plaintiff and the defendant, it is clear that there
might have been a few minor cracks in the wall which occurred after
the plaintiff completed the wall. At no stage did the defendant,
the
engineer responsible for the wall or any other person inspect the
wall when it was completed. In this regard the reasonable
infringe
must be that the wall was correctly erected and the plaintiff
informed the defendant that the wall was completed. The
lack of any
actions in this regard by the defendant must in itself raise an
eyebrow as to the
bona fides
of the defendant. Read herewith
the wall was erected in 2011 and the letter of demand by the
defendant for purported damages suffered
was only dated 31 August
2012, some 8 to 9 months after the wall was completed and handed over
to the defendant.
[92]. The burden of
proof of damages lies with the defendant in such a manner that a
court of law will grant the amount of
damages based on a proper
presentation with evidence thereto.
(a). Firstly, a
defendant cannot just stand up and claim damages without proper proof
thereof.
(b). Secondly, the
court has the version of the plaintiff who executed the construction
of the wall under supervision of the
designer, personnel of the
defendant and the engineer of the main contractor.
(c). Thirdly, one
the other hand there is the claim by the defendant that the plaintiff
did not construct the wall according
to standards and in an
unprofessional manner.
(d). Fourthly,
there is a storm water trench, an erected fence nearby the perimeter
of the wall, the cracks in the parking
area, a leaking irrigation
system and more than normal rainfall during the period December
2011 to January 2012 all which
occurred after the plaintiff handed
over the wall to the defendant.
[93]. In
reaching its final verdict a court must evaluate and analyse the
evidence before it. This would include the
credibility of witnesses,
their reliability and probabilities of their evidence. The burden of
proof is ‘
on the balance of probability’
, in other
words which version is more probable? .
[94]. The
principle of ‘
service rendered and payment’
is
applicable in this matter. The plaintiff had to construct a wall and
the defendant would pay the plaintiff for the construction
of the
wall. The plaintiff alleges that it constructed the wall
professionally and in accordance with the design of mr Farraris
and
under constant supervision and whereas the defendant alleges that the
construction of the wall was not done professionally
and not in
accordance with the design of mr Farraris. The crisp of the matter
before the court lies within the purported breach
of a contract
between the plaintiff and the defendant as alleged by the defendant.
The defendant alleges that the ‘
bidum
’ was not
included in the wall and that the compaction of the ground in the
wall was inadequate. For this reason the wall
‘
collapsed’
and the defendant had to re-build a portion of the wall.
[95]. Bearing
in mind the additional facts which came into play after the wall was
handed over to the defendant, a court
cannot just close its eyes for
the potential role these factors played in this matter
(a). Compaction of
the wall. Numerous tests have been done and forwarded to mr Farraris
who excepted the tests by Letaba Lab.
No complaints were received
from the defendant or mr Farraris in this regard.
(b). Benching and
bidum material. The photographs disclosed by the plaintiff clearly
showed the use and filling of the material
according to the design by
mr Farraris. When the defendant dismantled the wall, the plaintiff
was not present. The small piece
of ‘
bidum
’ under
the ‘
loffel brick
’ is interesting in the sense
that where is the remainder of the ‘
bidum
’ or the
other ‘
loffel bricks?’
(c). The role of
the storm water trench. Evidence was lead regarding the warnings by
mr Ruthman in this regard which seems
to have fallen on deaf ears.
The trench was dug and merely covered with a ‘
back actor’.
No compaction of the trench was done as required.
(d). The erection
of the fence onto of the wall. Although no direct evidence was lead
of the potential roll of the disturbance
of the fence the court does
take notice thereof.
(‘e). The
cracks in the tar surface on the parking area. Evidence was lead that
the defendant was informed of the cracks
and the effect thereof on
the area. It seems that the warnings fell on death ears. This coupled
with the extraordinary rainfall
over December 2011 to January 20912
must not be negated as the cracks in the tar and the possibility of a
huge volume of water
entering the area behind the wall is a factor to
keep in mind.
(‘e). The
‘
collapsed wall’.
Nowhere did the defendant
disclose any photographs of a ‘collapsed wall’ The photos
disclosed showed some construction
work being done after the wall has
been handed over to the defendant by the plaintiff.
(f). Plaintiff’s
presence when the wall was inspected. The plaintiff was not present
when the purported ‘
collapsed wall’
was inspected.
The only evidence in this regard was that the plaintiff was busy or
would not attend the meeting as the defendant
owed the plaintiff
money for outstanding work.
(g). Evidence by mr
Farraris. It is not clear why mr Farraris would first ‘sign off
the wall’ and then make a
180
0
degree turnaround.
His allegations of fraudulent behaviour by the plaintiff must be
evaluated in a serious light. Evidence by the
plaintiff was that he
inspected the wall at some stages (one third, two thirds and at
completion) whilst Allen Payne, oom Dawie,
Arend vd Berg and the mr
Joubert were constantly on the site. No complaints were lodged
against the plaintiff during the construction
of the wall.
Allegations made by the plaintiff regarding Oom Dawie and Allen Payne
were never tested by leading evidence to the
contrary.
[96]. The court must
apply the burden of proof being which parties version should be
accepted based on ‘
the balance of
probabilities’.
[97]. I have no doubt
that there is a combination of human failure and
vis major
which played a role in this matter. I cannot find against the
plaintiff as the evidence was that it constructed the wall
under the
direct and constant supervision of the engineer of the main
contractor, mr Allen Payne being supervised by either mr
Joubert
and/or mr Arend vd Berg who was the site manager of the defendant on
the projects at Makro Nelspruit. From the evidence
it is clear that
the plaintiff was constantly working ‘
under four eyes’
so to speak.
[98]. It is with respect
that the defendant cannot merely write a letter to the plaintiff
indicating some unspecified amounts for
damages without any evidence
in this regard. The only purported evidence of the damage of the
collapsed wall is photographs taken
prior to, during and after the
wall was repaired. There is no photographs indicating the purported
collapse of the wall or part
of it prior to the repairs being done
indicating the damages suffered, what it consist of, when it
occurred, who assessed the purported
damages, the proposed
quantification or quantum of the repair work to be done or whatever.
A mere letter indicating ‘
damages suffered’
land
which is used for a counter claim in this matter against the
plaintiff is not enough.
[99]. I have indicated
that the contents of the contracts between the plaintiff and the
defendant do not come in to play except
for the one regarding the
wall at Makro. In this matter as the only issue was who has to pay
who and for what reason with reference
to the wall at Makro
Nelspruit?
[100]. I am
indebted to counsel who submitted the heads of argument which helped
the court to come to its conclusion.
ORDER
I find in favour of the
plaintiff on the ‘
balance of probabilities
’ and
the following order is made –
1. The defendant
has to make payment to the plaintiff for the following claims
including VAT –
1.1. Claim 1 : R
160 528-00.
1.2. Claim 2 :
1.2.1. Rings around
trees : R 67 200-00.
1.2.2. Civil works
: R 24 460-00.
1.2.3. Curving : R
22 400 – 00.
1.2.4. Side stones
: R 9 028 – 00.
1.2.5. Civil works
; R 95 040 – 00.
1.2.6.
Construction of the Marko wall : R 969 606 – 17.
1.3. Claim 3 : R 35
470 – 27.
1.4. Claim 4 : R
132 547 – 80.
1.5. Claim 5 : R 59
796 – 63.
2. Interest to be
paid by the defendant to the plaintiff on the total amount due as
from date of the service of the summons
on the defendant at 15,5% per
annum.
3. The defendant to
pay the plaintiff’s cost of suit.
H.C. JANSEN VAN
RENSBURG
ACTING JUDGE OF THE
HIGH COURT OF SOUTH AFRICA
DATE OF
ARGUMENTS: 3
APRIL 2019
DATE OF
JUDGMENT: 4
APRIL 2019
COUNSEL FOR PLAINTIFF:
Adv T.F.T. Brand [SC]
Instructed
by Frey & Slabber Inc
21
Brander street
Nelspruit
Ref
:
mr Slabber/mm/SP 4062
COUNSEL
FOR DEFENDANT : Adv J.C. Kotze
Instructed
by L van Niekerk Attorneys
265
Glover street
Die
Hoewes
Centurion
Ref :
Jou/101/LVN