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[2019] ZAFSHC 188
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Andrews Incorporated v Foundation for Future Leaders SA (1859/2016) [2019] ZAFSHC 188 (21 October 2019)

IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: 1859/2016
In
the matter between:
ANDREWS
INCORPORATED
Plaintiff
And
FOUNDATION
FOR FUTURE LEADERS
SA
Defendant
HEARD
ON:
26, 17 & 29 March 2019 and
14,
15, 16 & 17 May
2019
JUDGMENT
BY:
MATHEBULA, J
DELIVERED ON:
21 OCTOBER
2019
[1]
The Plaintiff, an incorporated firm of attorneys based in Welkom, is
suing the defendant, a section 21 entity, for damages in
the sum of
R264 709.10 as a result of a breach of an oral agreement concluded
between the parties sometime in October 2014.
In turn, the
defendant has filed a counterclaim in the sum of R12 117000.00 for
the loss of rental income and replacement costs
for certificates and
associated costs to issue new ones to deserving candidates.
Common
Cause Facts
[2]
It is common cause that sometime around end of August or beginning of
September 2014, John William Andrews (“Andrews”)
was
approached by the Reverend Simpson Ngcizela “Simpson Ngcizela “
acting in his capacity as the chairman of the board
of the defendant.
The defendant as the owner/possessor of the property known as Erf
1918 district Welkom, Bronville conveyed to
the plaintiff that it had
been approached by the Department of Social Development, Free State
Province (“DSD”) to lease
the property commencing on 1
November 2014 until 31 May 2015. The rental payable by the tenant was
the amount of R1 300 000.00
per month.
[3]
Andrews was appointed to act as an agent of the defendant as per the
power of attorney dated 2 September 2014 signed by Simpson
Ngcizela
with authority to negotiate the sale or lease of the property as well
as sign and execute all documentation on behalf
of the defendant. The
parties further agreed that management fee payable to him was 6% of
the monthly rental.
[4]
It is also common cause that improvements had to be effected on the
property before the tenant could be given occupation. This
aspect is
clearly mentioned in the Valuation Report under the heading “Current
Condition of the Property” compiled
by Evyn Thorne of Barbour
and Thorne Estate Agents, Welkom. The relevant paragraph reads as
follows:-
“
There appears
to be extensive damage to the electrical installation caused by
burglary and vandalism.
Poor maintenance and
general up keep of the property is also evident from the broken
window panes and tree growing out of the swimming
pool”
[5]
As a result the parties entered into an oral agreement that the
plaintiff effect the improvements on behalf of the defendant.

Pursuant to this agreement, the plaintiff was given access to the
property for that purpose.
[6]
These are facts that need not need to be proved by either party.
Facts
in dispute
[7]
The dispute between the parties seem to be multifaceted. At the core
of it is that the plaintiff is suing for expenses that
the defendant
failed to repay which were incurred as a result of the improvements.
At the other angle, the defendant’s case
as stated by counsel
in the opening address, is that the plaintiff did not adhere to the
specific terms of concluding the improvements
within the stipulated
period. As a result the contract which the plaintiff relies on had
lapsed.  On the other hand, the existence
of the agreement is
denied in paragraph 3 of the plea.
[7]
On the issue of the counterclaim, the pertinent point is the validity
of the contract purported to have been entered between
the defendant
and the DSD. The question is whether the plaintiff breached the
management contract leading the tenant to cancel
the lease agreement
resulting in the loss of several millions of rands in the form of
rental income to the defendant. Further,
whether the conduct of the
contractor appointed by the plaintiff were negligent in carrying out
the removal of the movable property
causing damages also running into
millions of rands.
Evidence
for the plaintiff
[8]
A total of four witnesses testified in support of the claim of the
plaintiff and defence against the counterclaim. Briefly the
evidence
of Andrews is that after discussions with Simpson Ngcizela he
procured a Valuation Report on the property because the
latter was
unhappy with the purchase price offered by the potential buyer. He
wanted R40 million. Later he was informed about a
lease and
instructed to draft the Deed of Lease. It appears that it was signed
on 25 October 2014 on behalf of the DSD. It is unknown
who signed
this document and what authority did (s)he have to do so. What is
apparent is that Andrews signed on 29 October 2014
on behalf of the
defendant.
[9]
It was agreed that the plaintiff will spend its money to do the
improvements and recover such expenditure from the rental to
be
collected from the tenant. What followed is that the date of
occupation was changed because the project could not be completed

timeously. The main reason is that it rained in Welkom around that
period which caused damage to some parts of the building. Noluthando

Ngcizela, the daughter of Simpson Ngcizela, who was acting for the
defendant at all material times, apparently negotiated the extension

with the potential tenant.
[10]
The improvements were done which included electrical repairs, supply
of materials, issuing of the electrical certificate of
competence,
the installation of WLAN cables, building and rewiring server.
The leaking roof was repaired and sealed.
The ceiling was
replaced and the walls painted.  The garden which was not in
good condition was excavated, the overgrown grass
cut, trees trimmed
and the waste was removed.  All these were procured on behalf of
the defendant and paid for by the plaintiff.
In addition the
sum of R2 500.00 was paid to Noluthando Ngcizela.  The
reason for it was to cover the removal costs of
her movable items
from the property.
[11]
As Andrews was continuing to pour money into these improvements, he
became concerned about how matters were progressing.
It appears
that through Noluthando Ngcizela, a site inspection was arranged
without his knowledge and that of the contractor.
On the other
hand, he was promised that the first rental payment was imminent.
This later turned out to have been a mechanism
of buying time.
No payment was ever made till date.
[12]
On 6 January 2015 a schedule of payments due by the defendant was
sent to Noluthando Ngcizela per email.  She responded
the next
day and set out a payment plan to liquidate the debt.  At no
stage did she deny indebtedness to the plaintiff.
An updated
list was also sent on 20 January 2015.  It is unknown whether
she responded or not.  Again, I have not been
referred to any
protestations or denials from her that the defendant is under no
obligation to pay the plaintiff.
[13]
Andrews testified that he was authorised by Noluthando Ngcizela to
remove the movable items from the property to the church
premises.
He requested Jonas Nhlapo to do so.  He was not part of the
people who executed that mandate.  On the
day the items were
removed he received a short message service from a livid Noluthando
Ngcizela that her property has been damaged.
He went to
investigate and advised Nhlapo to lay a charge of malicious damage to
property.
[14]
Although he acted as an agent of the defendant, the drafted deed of
lease was given to Noluthando Ngcizela to hand over to
the relevant
officials attached to the department concerned.  At no stage did
he negotiate or liaise with any official from
the concerned
department.  It was never returned to him.  The extension
was also negotiated by her as a result of the
storms which caused a
delay in the completion of the works.  Every aspect of the
improvement was approved by her.
[15]
They left the property on/or about 30 November 2014 and all was in
good order except for the minor works still to be completed.

The trimmer and spades were left on the premises because they had
been purchased on behalf of the defendant.  He denied the

assertion that there was no need to purchase new air conditioners
because they were already there.  He reiterated that he
was
given an oral instruction to do so.
[16]
The next witness Khothatso Moletse who is a Director of Legal
Services employed by the Department of Public Works and
Infrastructure
(DPWI) succinctly explained the process of procurement
of services by his department.  He emphasised that his
department was
the custodian of all contracts with the responsibility
to sign and enter into lease agreements on behalf of other government
departments.
No department was authorised to enter into a lease
agreement for instance without the involvement of his department.
This
evidence was left uncontradicted.
[17]
It was the responsibility of his department to enter into discussions
from the beginning to conclusion of any intended lease
agreement.
He denied the existence of any person called “J Marais”
in his department.  Confronted with of
the letter on page 64 of
Exhibit A dated 21 January 2015, he testified that on perusal of the
letterhead and its format, his conclusion
is that it does not
originate from his office.  He was convinced that it was a
fraudulent document because matters of this
nature are brought to his
attention.  In this case, this did not serve before him.
[18]
Under cross examination he confirmed that he had exchanged
correspondence with Andrews in the past, but only physically met
him
for the first time on 28 March 2019. Although he was extensively
cross examined, his evidence remained uncontradicted and
uncontested.  The cross examination centred largely on what
Noluthando Ngcizela would testify on under oath.  These are

facts which he could not have been expected to have knowledge of
them.
[19]
Jonas Nhlapo, a member of Lefa Construction CC, confirmed that he
received an instruction from Norman Nichols, an office manager
of the
plaintiff, to effect some improvements on the property.
Together with his personal assistant they prepared a quotation

appearing on pages 136 – 139 of Exhibit “A”.
He rendered the services as agreed and payments were made
to his
business as tabulated on page 140 of Exhibit A although he was still
owed some amount of money.
[20]
It was his evidence that during the time that he was working there,
each room of the property had some office furniture and
equipment. He
was also instructed to remove them to the church premises known as
Sasko building.  Together with his employees
they carried out
the task on 29 November 2014.  There was a reverend and his
people who were also assisting in the process.
According to him
everything proceeded smoothly until the fourth load when he was
telephoned by Nicholas with an allegation that
they have damaged the
property.  He was pleasantly surprised because he had been
present all the time when the removal was
under way.
[21]
At one stage he saw Noluthando Ngcizela holding a brick in an angry
mood damaging the items.  They were no longer packed
in the
manner he had left them.  In his wisdom he found it prudent to
report the matter to the police.
[22]
The evidence of Norman Nicholas corroborates the evidence of Andrews
and Nhlapo in material aspects.  Simpson and Noluthando
Ngcizela
were closely involved in the project to effect the improvements.
The latter was more involved and interacted with
him more frequently
at each and every stage of the works.  He is the one who cashed
the cheque of R2 500.00 at the bank
and handed the cash to her
meant to cover removal costs of the items from the property to the
Sasko premises.
[23]
Cross examination revealed that the trimmer was given to the
defendant.  In any event it was never used at the offices
of the
plaintiff.  It was put to him that there was no request to do
any electrical repairs.  His response was that prior
to engaging
Shava Electrical there was a Harmony Mine employee who was doing the
electrical repairs.  Because he was progressing
at a snail pace,
it was agreed to engage the business entity that he appointed to
render the services.  The only clear mandate
was not to do any
repairs in the reception area.  It was his observation that the
items to be removed were old files and nothing
that was in current
use.  They were removed from a building that was old and not
utilised for a long period.  He conceded
that the state they
were in at Sasko premises was in disarray.
Evidence
for the defendant
[24]
Only one witness namely Noluthando Ngcizela testified on behalf of
the defendant.  The property was leased to the Department
of
Sports, Arts and Culture until 2013 when their lease agreement
expired by effluxion of time.  They started with the clean-up

and embarked on some improvements.
[25]
In August 2014 they received a letter purported to be from Eliah
Masopha, Head of the Department of Social Development expressing

interest in purchasing the property.  It is common cause that
the services of Andrews were procured to obtain a Valuation
Report
and subsequently mandated to handle all legal aspects to facilitate
the transaction.
[26]
The mandate to Andrews was to conclude a lease agreement between the
defendant and the relevant government department with
a rental of
R1,3 million per month.  The idea was to lease the property for
at least six months and eventually sell it.
The paperwork was
deferred to Andrews to finalise and she delivered the copy of the
lease agreement to the department.
[27]
On an appointed day in the company of Nicholas, they went to inspect
the building.  Apparently Andrews commented that
it was huge and
needed a lot of maintenance.  Nicholas arranged another
inspection and on this occasion accompanied by Simpson
Ngcizela.
Andrews intimated that the ceiling needs to be replaced but they were
against it because they needed the money
to be paid first.
According to her the property needed minor “touch ups”
and it was leased voetstoots. The department
agreed that they will
lease out the property as it is.
[28]
The only proviso was that the reception area must be fixed.  It
was at this point that Andrews “volunteered”
to do the
improvements.  At some stage Nicholas mentioned to her that he
had purchased a trimmer.  She considered it
a great idea but she
was not of the view that it was for her own account.  On
occasions that she had requested to use it,
it was always returned to
the plaintiff.
[29]
The contract of the electrician from Harmony mine was terminated by
Andrews.  The improvements done on the reception area
was
actually a downgrade from its previous state.  The property was
opened and she noticed that expensive cameras were missing
from where
they left them.  The contractors were slow to complete the
works.  The excuse about the storms was a concocted
narrative in
order to placate the department.  This line worked because
occupation date was delayed to 18 November 2014.
[30]
It was her evidence that she placed a call to the current Premier of
the Province then Member of the Executive Council for
Social
Development to weigh in on her behalf on the officials that they
should give her more time.  The reason(s) advanced
to her is
that they were hard at work to transform the property to make it look
fresher.  Unknown to them she was denied access
to it on the
orders of Andrews and could not determine the progress (if any).
Around 8 December 2014 she chased out the contractor
from the
property because the work was not yet completed.  In January
2015 she approached Samuel Mashinini the Member of the
Executive
Council for Public Works and Infrastructure, Free State to leverage
on the officials not to terminate the agreement with
the defendant
and extended the date of occupation to the end of January 2015.
[31]
The instructions to Lefa Construction to remove the items did not
originate from her but Andrews.  She had already told
them not
to do it because of the importance of the documents covering the
entire activities of the business of the defendant.
These
included and not limited to records of the defendant and students who
received tuition from them in the past.  Andrews
removed the
goods on his own without authorisation.
[32]
The removal was not properly co-ordinated.  She observed
employees of Lefa Construction sitting on the computers at the
back
of the bakkie.  When she saw this, she grabbed a brick and only
dropped it when the motor vehicle stopped next to her.

Undoubtedly she was in a furious mood when she realised such damages
caused to their documents.  Andrews admitted that the
removal
was not done properly.
[33]
She testified that Andrews did not act as per mandate and as such the
defendant lost the rental income of approximately R7,8
million.
Even though he did not act per instructions, the defendant did not
terminate the mandate of the plaintiff.
The defendant was party
to the improvements pertaining to the reception and the expenses
incurred by the plaintiff were not refunded.
Onus
of proof
[34]
In this matter the plaintiff bears the onus of proof regarding the
main claim and the defendant bears the onus of proof concerning
the
counterclaim.
[35]
As alluded to in the preceding paragraphs the parties are ad idem
that they interred into an oral agreement mandating the plaintiff
to
act as a Managing Agent in respect of the property.  The crux of
the dispute is in relation to improvements and the amount
payable
thereof.
Analysis
of evidence
[36]
I had the opportunity to listen to and observe the witnesses as they
gave evidence in court.  I was impressed by the witnesses
on
behalf of the plaintiff.  I found them to be credible and honest
witnesses.  They readily made concessions where appropriate
and
narrated their version in a candid and lucid manner.  To that
extent I have no qualms to accept the veracity of their
evidence.
Noluthando Ngcizela on behalf of the defendant was a poor witness
whose evidence was fraught with contradictions
and improbabilities.
I formed the impression that she was supremely arrogant,
self-absorbed and disruptive person with very
little respect for
court processes.  On a number of occasions she will burst out
into laughter or pulled faces when there
was nothing amusing.  I
had to reprimand her repeatedly to preserve the decorum of the
court.  Perhaps that was a lame
way of distracting the witnesses
and disrupting the proceedings.  She did not respond to
questions asked and instead gave
irrelevant and convoluted answers.
I reject her evidence.
[37]
The evidence of Andrews confirmed by her is that it was a term of
agreement that the expenses incurred in the improvements
will be
deducted from the first rental received from the tenant.
Therefor there can be no talk about the defendant not being
liable to
pay the plaintiff.  The only difference between the two is that
Andrews refers to all the improvements whereas the
defendant refers
only to the reception area. The pertinent question is whether there
was an agreement between them that he effect
all the improvements
claimed.
[38]
The evidence of Andrews and Nicholas was unequivocally clear that the
decision to improve the property was an agreement entered
into
between the parties. The defendant was represented by Simpson and
Noluthando
Ngcizela. The plaintiff contracted Lefa Construction to proceed with
the works. Other contractors were engaged to deliver
different
services.
[39]
There are contradictions in the case for the defendant. In paragraph
2 of the Plea, the defendant even denies the conclusion
of the
agreement that appointed Andrews as the Managing Agent.  No
mention whatsoever regarding the improvement of the reception.

The evidence is that the tenant wanted to lease the property as it
is.  The other version is that only the reception had to
be
improved.  In paragraph 11.3 of the defendant’s closing
arguments, the submission is that the plaintiff undertook
to renovate
the property with payment to be deducted from rental.  I have
already alluded to the submission of defendant’s
counsel in the
opening address.  There is no doubt that these versions are
contradictory.
[40]
At all times Noluthando Ngcizela was aware that there were
improvements taking place.  If Andrews was acting beyond his

mandate, nothing was done to stop him.  He was even allowed to
terminate the contract of the electrician from Harmony Mine
and
replace him with his own.  Again Simpson and Noluthando Ngcizela
stood idle when all this was taking place under their
watch.  I
am implored to accept her version that Andrews even went to the
extent of barring her to enter the property despite
being a
de
facto
owner of it.  All this happening to jeopardise a
multi-million deal.  The improbabilities of this version are
outweighed
by the probabilities that there was an agreement to
improve the property as explained by Andrews and Nicholas.
[41]
She was aware that a trimmer had been purchased to tender the
grounds.  At same stage she even utilised it.  The
evidence
of Andrews, Nicholas and Nhlapo corroborate each other that the
grounds had to be attended to as well.  I reject
her version
that the lawn was in good condition and need not be attended to.
It will not make sense that such an equipment
will be purchased for
any other purpose except to tender the lawn.  The unequivocal
evidence, which I accept, is that it remained
with the defendant
after the work was done.
[42]
There is a dispute regarding the amount of R2 500.00 which forms
part of the claim.  The evidence of Andrews is that
he drew the
“cash cheque” and handed it to Nicholas.  The latter
testified that he cashed it and handed the cash
to Noluthando
Ngcizela.  Her evidence is just a denial.  I am inclined to
accept the evidence of both Andrews and Nicholas
leading me to
conclude that she received the money which was paid for the purpose
of covering the transport costs.
[43]
Page 62 and 63 of Exhibit “A” contains a breakdown of all
the moneys the plaintiff demanded from the defendant.
The
amount of R2 500.00 is one of the items.  I was not
referred to any correspondence where she is denying indebtedness
in
this regard.  Under cross examination she could not give a
plausible explanation why she did not contest this issue.
I
conclude that she received the money thus making the defendant liable
to repay it.
[44]
There is no doubt that payments were made to different service
providers for services rendered.  A lengthy and pointless
cross
examination ensued that the documents relied upon were quotations not
invoices.  On paragraph 13.2 of the defendant’s
closing
arguments, this aspect is repeated though in a toned down fashion.
The submission is that no invoices showing that
services were
rendered were submitted on evidence except on a few items.
There is no explanation which items are specifically
referred to in
this assertion.  The argument is further developed that
quotation(s) cannot be used to justify proof of expenditure.
[45]
This submission is mutually destructive to the concession on
paragraph 11.5 that the plaintiff then went to do all renovations

even those that were not agreed to.  I fail to understand then
what is still the bone of contention.
[46]
Noluthando Ngcizela agreed that these improvements were effected.
Further I was not referred to any evidence that they
were
dissatisfied with the works or there was some poor workmanship.
Neither was there evidence led pertaining to which improvements
were
unnecessary.  The payments were made in accordance with what was
rendered by different service providers.  Plausible
explanation
was provided regarding all documents be it a quotation or proof of
payment to support the claim.  I deem it to
constitute the best
evidence in the circumstances.
[47]
It was conceded on behalf of the plaintiff that the amounts of
R7 147.07 and R2 923.8 must be deducted from the claim.

These amounts have not been paid and remain outstanding.  I
agree.
[48]
I now turn to the counterclaim brought by the defendant.  The
crux of the defendant’s case is that because of Andrew’s

ineptness in executing his responsibilities as an agent, the
department cancelled the lease agreement resulting in a loss of
millions
of rands in the form of rental income.
[49]
The fact of the matter is that Andrews was given the information and
drafted what is a standard lease agreement.  It was
taken to the
relevant people by Noluthando Ngcizela.  Even the extensions
were negotiated by her through her connections with
high ranking
politicians. The evidence of Moletse is that the Provincial
Government does not conduct its business in that manner.

Furthermore as a custodian of contracts, such an agreement with the
defendant did not serve in his office.  In short it did
not
exist.  The officials purported to have signed the letters were
not employed by his department.  The suggestion that
a deviation
to normal tender procedures was possible was not supported by any
evidence.  My view is that this transaction
depended on
political patronage and connections given how politicians instead of
bureaucrats were allegedly involved in it.
In the event that
this is true and it is not just name dropping, then it constitute
contravention of Section 217 of the Constitution
of the Republic Act
108 of 1996 which requires an organ of State to procure goods and
services with a system that is fair, equitable,
transparent and
competitive.  This one does not pass the muster.  My
conclusion is that there was no such a contract
from the very
beginning.
[50]
Even if I am wrong on this aspect, this claim will fail on another
ground.  There was no evidence led in respect of the
alleged
cancellation of the Lease Agreement between the defendant and the
department.  There is no evidence tendered as to
who did that,
where did he/she cancel it, why did he/she cancel it and when did
that take place.  To compound the many problems
encountered by
the defendant, there is no evidence that the property was even
lettable. Therefore this part of the claim ought
to fail.
[51]
It is so that the goods were in disarray in the room that they were
packed in.  This is apparent in photos 7 to 10 as
well as 23 to
28 of Exhibit “B”.  I have no doubt that there must
have been damages suffered to some equipment
during the removal.
However, even though a party has established that some loss has been
suffered, the quantum of damages
to which it is entitled must still
be proved.
[1]
[52]
In
Hersman
v Shapiro
the court noted that there are cases where the assessment by the
Court is very little more than an estimate.  Further that
“where
the best evidence available has been produced, though it is not
entirely of a conclusive character and does not permit
of a
mathematical calculation of damages suffered still, if it is the best
evidence available, the Court must use and arrive at
a conclusion
based upon it.”
[2]
[53]
The case for the defendant falls short on this aspect.  No
evidence was either orally or documentary tendered to prove
these
claims.  I note with interest that in the defendant’s
closing arguments, this aspect is not even remotely argued.
The
figures as computed does not assist this Court at all.  The
basis for the calculation and whether indeed these are actual
or
estimate amounts remains the domain of the defendant alone.  It
cannot be classified as best evidence at all. Instead it
is failure
to prove a claim.  Therefore it cannot succeed.
Costs
[54]
This brings me to the issue of costs.  The principle repeatedly
upheld in our courts is that, the costs follow the results.
The
defendant is the losing party and must pay the costs.
Order
[55]
In the premises I make the following order:-
55.1. Judgement is
granted in favour of the plaintiff in the sum of R228 324.03
with interest thereon calculated at the rate
prescribed by law from 1
January 2015 until date of final payment.
55.2. The defendant’s
counterclaim is dismissed.
55.3. The defendant is
ordered to pay the costs of both the main action and counterclaim on
a party and party scale.
­­__________________
M.
A. MATHEBULA, J
On
behalf of Plaintiff: Adv. J J F Hefer SC
Instructed
by: Lovius Block
Bloemfontein
On
behalf of
Defendant
: Adv. S Motloung
Instructed
by: Bokwa Inc
Bloemfontein
/roosthuizen
[1]
Esso
Standard SA (Pty) Ltd v Katz 1981 (1) SA 964 (A)
[2]
1926
TPD 367
at 369