About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2018
>>
[2018] ZAGPPHC 102
|
|
Mahlalerwa-Kgabo-Ergo v Cooperativa Muratori Cementisti Ravenna (Pty) Ltd t/a C.M.C di Ravenna (South Africa) (10058/2017) [2018] ZAGPPHC 102 (14 March 2018)
IN THE HIGH COURT OF SOUTH
AFRICA
(GAUTENG DIVISION. PRETORIA)
(1)
NOT REPORTABLE
(2)
NOT OF INTEREST TO OTHER
JUDGES
(3)
REVISED
Case No. 10058/2017
14/3/2018
In
the matter between:
MAHLALERWA-KGABO-ERGO
JV
APPLICANT
And
COOPERATIVA
MURATORI
CEMENTISTI
RESPONDENT
RAVENNA
(PTY) LTD T/A C.M.C di RAVENNA
(SOUTH
AFRICA)
JUDGMENT
MILLAR
AJ
1. The
applicant is the plaintiff in an action where the respondent is the
defendant. After the entry of an appearance to defend, the respondent
served a notice in terms of Rule 23(1) calling on the applicant
to
remove various causes of complaint which it contended rendered the
particulars of claim excipiable.
2. The
applicant responded by giving notice of intention to amend its
particulars of claim to address the causes of complaint. The
respondent objected to the proposed amendment.
3. Before
me is an application to amend. The respondent persists in its
objection to the proposed amendment on the following grounds:
3.1
Firstly,
that the applicant seeks by the amendment to introduce the allegation
in paragraph 6.2 that there were implied alternatively
tacit terms to
the written agreement where the respondent contends that this would
be in direct contradiction of the express terms
of the agreement;
3.2
Secondly,
that the applicant seeks by the amendment to introduce a claim for
restitution in respect of payment of its claim for
work done; and
3.3
Thirdly,
that the alternative claim to paragraphs 6 to 9 of the amendment for
unjustified enrichment is bad in law.
4. The
applicant argued that by virtue of the references in the written
agreement
for the necessity to comply, that both the work undertaken
for compliance with the Health and Safety Procedures as well as the
Site Establishment costs were contemplated costs to be borne by the
respondent notwithstanding that the Bill of Quantities ("BOQ")
did not specifically provide for, and was silent on these costs.
5. The
respondent argued that absent a reference to the specific items in
the
BOQ, there was neither an agreement nor obligation on the
respondent to pay for these items. They were to be regarded as part
of
the contract price. The respondent relied on
inter
alia
Hudson's Building and
Engineering Contracts,
[1]
a leading work on the type of agreement entered into between the
parties, as authority for this view.
6. The
proposed amendment to introduce the pleading of a tacit alternatively
implied term of the agreement in question goes to one of the
essentialia
of
the agreement - the contract price.
7. The
contract price is referred to in three parts of the written
agreement,
in the preamble to the "Subcontractor's Offer"
it reads :
"Having examined the
Conditions of Subcontract, the Subcontract Specification, the
Subcontractor's Drawings, and the Subcontract
Schedule of Quantities
for the execution of the abovenamed Subcontract Works, we, the
undersigned,
offer
to execute and complete such Works
(my underlining) and
remedy any defects therein in conformity with the Conditions of
Subcontract, the Subcontract Specification,
the Subcontract Drawings,
the Subcontract Schedule of Quantities for the indicative total sum
of
R1,950,353,51
(one nine
five zero three five three million hundred thousand hundred Rand/51)
plus
R273,049,49
(two
seven three zero four nine hundred thousand hundred Rand/49)
representing VAT (14%), for
a
total of
R2,223,403,00
(million
hundred thousand hundred Rand/00) or such other sum as may be
ascertained in accordance with the said Conditior1s. The
above
amounts are indicative only being the Subcontract Agreement between
MAHLALERWA-KGABO-ERGO
JV
and
CMG
re-measurable
"
And clause 16.1 of the "Conditions
of Contract" which reads:
"The Subcontract Price
R1,950,353,51
(one nine
five zero three five three million hundred thousand hundred Rand/51)
plus
R
273,049,49
(two
seven three zero four nine hundred thousand hundred Rand/49)
representing VAT (14%), for
a
total of
R2,223,403,00
(million
hundred thousand hundred Rand/00) or such other sum as may be
ascertained in accordance with the said Conditions. The above
mentioned amounts are indicative only being the Subcontract Agreement
between BATCH 2 JV and CMG re measurable
in
accordance to rates submitted by the Subcontractor, included into
ANNEX E
(my
underlining)"
And clause 16.1 of the "General
Conditions which reads:
"The Subcontract Price
is the sum stated in the Schedule of Quantities (Annex E) as payable
to the Subcontractor for the design
(if any), performance, execution.
completion and warranty of the Subcontract Works
(my underlining) and
the remedying of any defects therein in accordance with the
provisions of the Subcontract and/or Main Contract.
All duties, fees, taxes
and
any further cost payable by the Subcontractor, including overheads
and profit shall be deemed to be included in the Prices and
Rates of
the Schedule of Quantities
(my bold and underlining).
The Subcontractor shall be
deemed to have satisfied himself
as
to the
correctness and sufficiency of the rates and prices stated in the
Schedule of Quantities, all of which shall, except insofar
and
as
it is otherwise
provided in the Subcontract, cover all his obligations under the
Subcontract (including those in respect of the
supply of goods,
Materials, Plants or services) and all matters and things necessary
for the proper execution and completion of
the Subcontract Works and
the remedying of any defects therein.
If
any item in the Schedule of Quantities is not priced by the
Subcontractor, it will be deemed to have been priced at nil
(my underlining)
8. The
principle to be applied when having regard to whether or not an
implied or tacit term is to be read into an agreement is stated in
SA
Mutual Aid Society v Cape Town Chamber of Commerce
1962
(1) SA 598
(A) at 6150 :
"A term is sought to be
implied in an agreement for the very reason that the parties failed
to agree expressly thereon. Where
the parties have expressly agreed
upon
a
term
and given expression to that agreement in the written contract in
unambiguous terms no reference can be had to surrounding
circumstances in order to subvert the meaning to be derived from
a
consideration of
the language of the agreement only. See Delmas Milling
Co
Ltd v Du Plessis
1955 (3) SA 447
(A) at 454."
9. The
agreement is clear and unequivocal in regard to what is included
in
the contract price and as to the manner of the determination of that
price. On a plain reading of the above clauses, and in
particular
those parts that I have underlined, there is express agreement as to
the contract price and what is to be included and
what is to be
excluded. There is no basis upon which to impute the implied or tacit
term which the applicant contends-for.
10. Having
found that the agreement provides expressly for payment for all the
work
that was done by the plaintiff, it is not necessary for me to
deal in any detail with the alternative claims for restitution and
unjustified enrichment that the applicant sought to introduce. In any
event these do not seem to me to have been properly pleaded
and had
they been allowed, would have rendered the particulars of claim in
any event excipiable.
11. The
respondent argued that given the nature and importance of the matter,
it
was a wise and reasonable precaution for it to have briefed two
counsel in this matter and that costs, irrespective of the order,
should be awarded to the respondent on this basis. The applicant
argued that given the nature of the matter, the briefing of two
counsel was neither reasonable nor warranted. I agree with the
submission of the applicant in this regard.
12
In
the circumstances I make the following order:
12.1
The application for amendment is refused.
12.2
The applicant is to pay the costs of the application.
A MILLAR
ACTING JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
HEARD
ON: 6
MARCH 2018
JUDGMENT
DELIVERED ON: 14
MARCH 2018
COUNSEL
FOR THE APPLICANT: ADV.
K FITZROY
INSTRUCTED
BY: JORDAAN
& SMIT INCORPORATED
REFERENCE: MR
J JORDAAN
COUNSEL
FOR THE FIRST RESPONDENT: ADV.
T. MAHON
ADV. ASHWORTH
INSTRUCTED
BY: TERRY
MAHON ATTORNEYS
REFERENCE: MR
T MAHON
[1]
19
th
Edition, EJ Rimmer and IN Duncan Wallace, Sweet &
Maxwell Ltd, 1959 , see especially the references at pages 109 -110
and
to the 11
th
Ed . By IN Duncan Wallace QC, Sweet &
Maxwell Ltd, 1995 at pages 497 - 498.