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[2019] ZAFSHC 103
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Louhan Civil (Pty) Ltd / High Point JV v ACL Group (Pty) Ltd (2152/2013) [2019] ZAFSHC 103 (27 June 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
No: 2152/2013
In
the matter between:
LOUHAN
CIVIL (PTY) LTD / HIGH POINT JV
Plaintiff
and
ACL
GROUP (PTY) LTD
Defendant
[Registration
Number 2007/008763/07]
CORAM:
MOROBANE,
AJ
JUDGMENT:
MOROBANE,
AJ
HEARD
ON:
04
JUNE 2019
DELIVERED
ON:
27
JUNE 2019
[1]
In
these action proceedings the plaintiff claimed damages against the
defendant arising from a breach of contract. The dispute relates
to a
disagreement between the parties about the execution of a subcontract
for the horizontal drilling of a tunnel under the Bloemfontein
–
Thaba Nchu Road.
[2]
The
parties concluded a partly written and partly oral agreement
originally contained in a Purchase Order delivered by the plaintiff
to the defendant for the amount of R1 139 606.70 (the “Agreement”).
Subsequently, the purchase order was amended for
the amount R488
182.20 which constituted the final written part of the agreement
between the parties. In terms of the agreement,
the defendant would
do a horizontal drilling for a sewer main connection to connect the
Grassland and Bloemspruit areas in Bloemfontein.
The defendant’s
services were defective as they could not be executed for purposes
for which the services were to be delivered
without extensive repairs
and replacement.
[3]
Judgment
was delivered by my sister Murray, AJ on 17 December 2015 in which
the plaintiff’s claim succeeded on the merits.
At this stage,
the only issue for a determination is the quantum.
[4]
On
1 April 2019, the defendant’s attorneys of record filed their
notice of withdrawal and also furnished the defendant’s
last
known address. The matter was set down, but there was no appearance
of the defendant during the trial. Two witnesses testified
on behalf
of the plaintiff and their testimony is summarised below.
[5]
The
first witness, Johannes Hendriks Ceronio, is the plaintiff’s
chief executive officer and was personally involved in the
project.
He testified that the defendant was called upon to rectify the
defective work, but failed to do so. The maximum defect
was 500 mm
below the sewer course with no natural pressure or fall. In order to
minimise the company’s liability, plaintiff
appointed an
alternative contractor to remedy the defects. After the latter were
located, the rest of the pipeline was cut into
pieces and a ‘regrout’
was done. He further testified that the costs incurred by the
plaintiff were computed on the
market norms and could not have been
prepared for less.
[6]
Casper
Nicolaas Kempff, a professional engineer, has over 30 years of
experience in the field and an engineering expert. He confirmed
his
report and highlighted his summaries. He testified that the level of
the sewer line was not straight and had to be re- aligned;
it was
most appropriate to remedy the work at the time; the prices were set
by the government and the sector; he reviewed the costs
and found
them to be in accordance with the industry norms; the costs were
justified and the prices reasonable; and the total price
is fair as
it could not have been done for less. He testified further that
horizontal drilling is risky where the formation differs
and it could
not be done next to the defect, unless you have a specialised
services to do so.
[7]
The
witnesses were honest and truthful during their testimony. I have no
reason to doubt them and I accept their testimony.
[8]
Only
the plaintiff’s evidence is before me to consider and make a
determination of the quantum. It is also uncontroverted
and I have no
reason to reject the same. In the light thereof, the plaintiff has
made out a case for judgment on the quantum as
claimed.
[9]
In
the premise the following order is made:
1.
Judgment
is granted against the defendant for payment of the amount of R976
545.51.
2.
Interest
on the amount of R976 545.51at the rate of 15.5% per annum a tempore
morae.
3.
The
defendant to pay the costs.
V.M.
MOROBANE, AJ
On
behalf of the plaintiff: Adv. MC Louw
Instructed by:
Azar & Havenga Inc.
BLOEMFONTEIN
On
behalf of the defendant: BH
Mellet (Director)
Instructed by:
ACL
Group (Pty) Ltd
BLOEMFONTEIN