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
>>
2017
>>
[2017] ZAGPPHC 104
|
|
Shiya Phantsi Cleaning and Security CC v Primat Construction CC (3960/2011) [2017] ZAGPPHC 104 (24 February 2017)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
DATE:
24/2/2017
CASE
NO: 3960/2011
In
the matter between:
SHIVA
PHANTSI
CLEANING
AND
SECURITY
CC
Plaintiff
and
PRIMAT
CONSTRUCTION
CC
Defendant
JUDGMENT
Baqwa
J
[1]
This is an action for payment in respect of an amount allegedly owed
for services rendered by the plaintiff to the
defendant arising
out of an oral agreement entered into between the parties during or
about June 2009.
[2]
Initially the summons was issued out for the sum of R120 000.00 for
the period June 2010 to 30 November 2010 but this was later
amended
to a claim for the entire year of 2010, namely January to December
2010.
[3]
The amount claimed was also amended to R532 800.00.
Facts
which
are
Common
Cause
[4]
It is common cause between the parties that the agreement entered
into was oral and that it was entered into by Mr Pila representing
the plaintiff and Mr Cola representing the defendant.
[5]
It is also common cause that the plaintiff would render security
services in respect of the defendant's three
sites,
namely Daveyton, Kempton Park and Soshanguve Extension 10.
[6]
It is further common cause that there would be a night guard provided
for each of the aforesaid sites.
[7]
Lastly it is common cause that the defendant paid an amount of R202
200.00 to the plaintiff in respect of the contract.
Disputed
Issues
[8]
The parties dispute what the rate per day was, which days the day
guard was for and what the total monthly amount was.
[9]
Also in dispute is the period during
which services were to be
rendered.
According
to the defendant services were rendered until July 2010.
[10]
According to the plaintiff there was a day guard 30 days per month
whereas the defendant avers that the day guard was only
agreed upon
for Saturdays and Sundays only and that the chargeable period for the
day guard would be eight days per month.
[11]
The plaintiff's version is that the rate was R240.00 per day per
guard whereas the defendant claims the rate was R190.00 per
day per
guard.
[12]
According to the defendant the total
amount due per site per month
was R7 220.00 with a grand total of R21 660.00 and that the
total due to the plaintiff for the seven moth period, including
July
2010 was R151 620.00.
The
Evidence and
Evaluation
[13]
The plaintiff presented evidence by calling three witnesses, namely
Mr Pila, Miss Mthombeni who was the community
liaison
officer (CLO) and Mr Mataba who was a sub-contractor at Soshanguve
Extension 10.
[14]
Mr Pila testified that the defendant owes him money for security
services rendered on the three sites mentioned in the
contract.
He stated that there was one guard in respect of each site during the
day and another guard at night and that the guards
were on site from
Monday to Sunday. He also testified that he rendered services to the
defendant until December 2010.
[15]
The plaintiff initially appeared quite confident about the facts
until he was cross examined when cracks began to emerge
in his
testimony. He was cross examined in particular with regard to
invoices presented as bundle "C" and bundle
"O"
of the pleadings.
[16]
When confronted with "C
7'
which was identical to
"D
9"
he testified that it
related to guarding a broken down truck and that that invoice had
been delivered to Mr Cola. He denied
even having seen
"D 9"
and denied that it was his signature appearing on that document
or that he gave it to Mr Cola. It was only when the Court asked him
about the undeniable similarities in the documents that he was
prepared to make the concession that the documents were identical.
[17]
Whether one considers the contents of C 7 or C 9, the contents
thereof are of some significance. Regarding the aspect of guarding
both documents read as follows:
"
Guarding per night shift 30 days"
"
Unit price
R190 per day"
"
Total R5 700 per month"
"
Guarding per day shift days for 8 days"
"R1
520 per month"
Even
though the total is given as R5 700.00, addition of that amount to R1
520 amounts to R7 220.
[18]
These figures which are admitted by the plaintiff as being correct
with the exception of the total, tally with the version
of the
defendant with regard to the daily rate for the guards and the
testimony that the agreement was for night guards only except
for
weekends when the plaintiff would also provide day guards.
[19]
Quite clearly if guard duties were provided for something else such
as guarding broken down vehicles, logic would dictate that
this would
have been specified in the invoice detail with specification of the
relevant dates. None of this was done and one encounters
this detail
in the evidence of Mr Pila only. Such evidence is at variance with
even the documentary evidence which he himself admits
is true. It is
particularly in this regard that I come to the conclusion that Mr
Pila's evidence is unreliable.
[20]
One would expect that Mr Pila's evidence would find corroboration
from the witnesses he called but this was not the case. Miss
Mthombeni, the CLO, could not corroborate him even with regard to the
number of security guards the plaintiff had at the Soshanguve
site.
Miss Mthombeni was adamant that the plaintiff employed two security
guards a night which was contrary to Mr Pila's own evidence
that at
all times he employed one security guard at night. This, in my view
was a significant contradiction not only because of
the position that
Miss Mthombeni held during the execution of the Soshanguve project
but also because she was the person
to whom all the parties
related and who was present on the site on a daily basis. The
credibility of the plaintiff s case
suffered yet another body
blow from Miss Mthombeni's evidence.
[21]
Motapa who was another witness called by the plaintiff did
not improve the status of the plaintiff's case.
He was only on site
until June 2010 and he confirmed that his job was completed by that
time. This was a sub-contractor who was
critical to the laying of
pipes and reticulation project. It is not clear how his role could
have been completed if the project
continued until December 2010. His
evidence therefore contradicts both Mr Pila's and Miss Mthombeni's
evidence and supports the
defendant's version that the reticulation
project had been completed by June 2010.
[22]
The defendant's case was presented through the evidence of Mr Mnisi
and Mr Cola. Mr Mnisi was the site foreman for the duration
of the
project on the site at Soshanguve Extension 10. He testified that
there was one night guard on a weekly basis and a day
guard from the
plaintiff on Saturdays and Sundays only. The site was broken down and
fences taken down in July 2010. At that time
the reticulation project
had been completed. All that was left post July was site clearance of
boulders which had been stockpiled
during the laying of the pipes
which the client, Tshwane Municipality wanted removed from the site
prior to the signing off on
the project. This was done by October
2010 and the signing off process was done in November 2010.
[23]
Mr Cola testified as the sole member of the defendant. His testimony
was in line with the defendant's version already alluded
to above
with regard to the terms of the contract. His evidence went
unchallenged during cross-examination and the veracity thereof
ought
to be accepted in those circumstances. I found Mr Cola's evidence to
be consistent with Mr Mnisi's testimony. Mr Cola testified,
inter
alia,
that the plaintiff never provided services
again after July 2010 even in respect of Kempton Park and Daveyton.
He explained that
this was related to an incident when one of the
defendant's vehicles went missing at the Kempton Park site.
[24]
In a situation where the oral contract is common cause, it is trite
that the onus is on the plaintiff to prove breach of contract
and the
fact that the plaintiff suffered damages. The onus is also on the
plaintiff to prove a causal link between the breach and
the damages.
See
Amler's
Precedents
of Pleadings,
pp 117-8, Eighth edition by HARMS.
[25]
The evidence tendered by the plaintiff has not been of the quality
necessary to tip the scales in his favour. He did not achieve
corroboration with his own witnesses. Instead, in some respects, the
plaintiff's evidence tended to corroborate the defendant's
version.
As already mentioned earlier, it is common cause that the defendant
paid the plaintiff the sum of R202 200.00. The credible
evidence
currently before this Court is that the project at Soshanguve lasted
for seven months. That would entitle the plaintiff,
all factors
considered, to a payment of R151 620.00 when one accepts that the
plaintiff walked away even from the Kempton Park
and Daveyton
contracts after July 2010.
[26]
As matters stand, the plaintiff simply denies the version tendered by
the defendant and tenders insufficient evidence to demonstrate
that
such evidence is not true. In other words this Court is simply left
with two mutually destructive versions on the table.
[27]
It trite that where the two versions are mutually destructive and the
Court is unable to accept the version of either party,
the proper
judgment is absolution.
See
African
Eagle
Life Assurance
Co.
Ltd v
Cainer
198
(2) SA 234
0/\1) at 237 F and
S v
Molautsi
1980 (3) SA 1041
(B) at 1042-3.
Absolution
form the instance will however only
apply where there are
no probabilities
either way.
[28]
The defendant has argued for an order for costs on a punitive scale
due to the submission of an inflated claim which the plaintiff
ought
to have known he was not entitled to. The evidence shows that the
defendant did not adhere to the agreed monthly payment
terms. He
would make up for the shortfalls as the implementation of the
contract progressed. There was even a dishonoured cheque
in the
process. The plaintiff testified that these irregular payments caused
a measure of confusion in his mind. Further, what
may appear as an
inflated claim may have arisen from a miscommunication when the
parties entered into the oral contract. In other
words, this was the
direct result of the parties not recording the terms of their
contract in a written format. There is therefore,
in these
circumstances no basis for this Court to adopt a punitive stance
towards the plaintiff.
[29]
In
casu,
I have therfore come to the conclusion that
the probabilities favour the defendant and in the result I make the
following order:
29.1
The plaintiff's claim is dismissed.
29.2
The plaintiff is ordered to pay the costs.
_____________________
S.
A. M. BAQWA
JUDGE
OF HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION,
PRETORIA
Heard
o
n:
20, 21, 22 & 23
February 2017
Delivered
o
n:
24
February 2017
For
the
Plaintiff:
Mr M. B. Seoka
(Attorney with right of appearance)
Instructed
b
y: Seoka
Attorneys
For
the
Defendant:
Advocate C. M. Rip
Instructed
b
y: Van
Huyssteens Commercial Attorneys