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[2016] ZAGPPHC 557
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Thushang Construction CC v Greater Tubatse Municipality (9834/2003) [2016] ZAGPPHC 557 (4 May 2016)
IN THE HIGH COURT OF SOUTH AFRICA,
GAUTENG DIVISION, PRETORIA
CASE NO: 9834/2003
DATE: 4 MAY 2016
In the matter between:
THUSHANANG CONSTRUCTION
CC
Plaintiff
and
GREATER TUBATSE
MUNICIPALITY
Defendant
J U D G M E N T
TEFFO,
J
:
INTRODUCTION
[1] The plaintiff sued the
defendant for payment of an outstanding balance
in
the sum of R614 637,91 due and payable to it for services rendered
during
the period February 2002 to July 2002 at the
defendant's special instance and request together with interest and
costs.
[2] At the end of the trial the
plaintiff brought an application to amend the amount claimed to read
R643 869, 17. The application
was opposed but was ultimately granted.
[3] The plaintiff alleged in its
particulars of claim that during March 2000 it duly represented by Mr
Pieter Daniel De Nysschen
("
Mr
De
Nysschen" )
submitted a tender for the
construction of a sports and recreation facility for Tubatse Township
("
the
project' )
which
was to be completed in two phases. The tender was for the amount of
R1 913 902,40. The amount was based on quantities provided
by Tsebo
Development Consultants CC
(" Tsebo")
who were the
defendant's consulting engineers at the time. The tender was not
accepted but the defendant requested the plaintiff
to keep it open.
The plaintiff agreed to this arrangement subject to an escalation of
the amount tendered.
[4] The following facts are common cause
between the parties: During February 2002 and at Tubatse, a duly
authorised employee of
the defendant, accepted the tender on behalf
of the defendant on the basis that the defendant would pay the
plaintiff an amount
of R907 229, 11, that the scope of the project
was to be reduced, that the plaintiff would only have to complete
phase 1 which
included the construction of an athletics and a soccer
field. It was further agreed that the following work was to be
omitted from
the reduced project: septic tank and associate pipe
works, Bill 17 - soil drainage - all items; irrigation system for the
football
grounds - Bill 17 - irrigation system - all items, fencing -
Bill 17 - fencing - all items; storm water channels around the
athletics
track - Bill 17 - storm water channels - all items;
spectator seating - Bill 18 - spectator seating - all items.
[5] The plaintiff duly proceeded with
the project and it was agreed that payments would become due and
payable during the course
of the construction upon the submission by
the plaintiff to the defendant of the invoices for the work done up
to the date of the
invoice.
[6] Further allegations were made, which
were disputed by the defendant in its plea, to the effect that it was
an express, alternatively
tacit, alternatively an implied term of the
agreement that the contract price would increase or decrease in the
event that quantities
provided by the defendant or its duly
authorised representatives were found to be incorrect, depending on
whether more or less
work had to be performed as a consequence of
such incorrect quantities.
[7] The following further allegations
were made in the plaintiff's particulars of claim:
"Para 10 During the construction
process of phase I, it
became clear that Tsebo
incorrectly surveyed the quantities as
follows:
instead
of 19 trees to be removed, there were 340 trees to be
removed;
...
the
total area for excavation and filling was underestimated
as
follows:
10.2. 1 Excavation volumes as
provided by
Tsebo: 9 405
m
3.
Actual excavation volumes: 11 833
m
3
plus 18 868
m
3
10.2.1.1
Excavation volume of rock as provided
by Tsebo: 470
m
3
Actual excavation volume of
rock: 1
800
m3.
10.2.2 Filling volumes as provided
by Tsebo: 11 828
m
3
Actual filling volumes:11833
m
3
and 18 868
m
3
11. The additional excavation
and filling work increased the
contract price, details of
which are contained in para 14
below."
[8] The defendant pleaded as follows to
paras 10 and 11 of the plaintiff's particulars of claim:
" The contents of these
paragraphs are denied and plaintiff is put to the proof thereof The
defendant pleads that the contract
amount was R907 229, 11 inclusive
of VAT. As the plaintiff progressed with work the following payments
were made to it:
R171 974,47 on
7
May
2002;
R 58 390,80 on 20 June 2002;
R243 423,02 on 2 August 2002;
R245 801,00 on 29 August 2002;
R143 487,61 on 13 November
2002.
The total payments made to the
plaintiff amount to R863 076,90.
The balance of R44
152,21 was retained for incomplete and/or
defective
workmanship as well as penalties payable by the plaintiff to the
defendant. The stated completed date was 30 June 2002
and the
plaintiff only vacated the site on or about 30 August 2002. The
penalty payable by the plaintiff to the defendant was R500,
00 per
calendar day for everyday beyond the
stated completion
date."
[9] The plaintiff also averred that
during or about June 2002 and at Tubatse, the parties further orally
agreed to amend the agreement
to the effect that it was to proceed
with phase 2 of the project and that it eventually proceeded with the
construction of phase
2. It is alleged that the plaintiff eventually
issued the following invoices to the defendant:
4 April 2002 R 188 568, 50
1 May 2002 R 384 354, 50
10 July 2002 R 712 924, 41
2 August 2002 R1 321 906, 70
Total
R1 321 906.70
R2
607 754.11
Accordingly so it was alleged, that
various payments were made to the plaintiff leaving the balance of
the amount claimed. These
allegations have been disputed in the
defendant's plea.
[1O] The issue for determination is
whether the plaintiff is entitled to the relief sought and whether it
indeed did the work on
phase 2 and whether it was authorised to do
the work on phase 2 of the project.
THE
EVIDENCE
[11] Mr De Nysschen was the only witness
who testified in support of the plaintiff's case while the defendant
called two witnesses,
namely, Mr Collins Sipho Dlamini (" Mr
Dlamini") and Mr Ramatshidiso Mpho Matje (" Mr Matje").
[12] The evidence of Mr De Nysschen was
briefly as follows: He is the managing member of the plaintiff. He
practises as a civil
engineer with a B.Sc in Civil Engineering degree
he obtained in 1965. He is registered with the Engineering Council of
South Africa
("ECSA"). He does consulting and construction
work and all the disciplines in civil engineering. He submitted a
tender
for phases 1 and 2 on behalf of the plaintiff. The tender was
not accepted. Mr Dlamini engaged him and requested that he should
keep the tender valid as they were busy trying to raise the capital
amount. The tender became a negotiated tender. On 13 December
2001 he
was called to a Council meeting at Burgersfort Municipality which is
part of the defendant. Mr Janse van Rensburg who was
the Acting
Municipal Engineer for the defendant informed him that the defendant
wished to pursue the construction of the complex.
He asked him what
his conditions would be in case the full tender amount was not
awarded. Heads of departments, community leaders,
Mr Dlamini, Mr Van
Rensburg and Mr Andries Ngwenya were also present at the meeting.
They agreed that the escalation should be
paid to the tender rates
which were two years old and that the full tender amount should be
made available to the plaintiff when
the funds were raised. The
tender was valid for 45 days. After the expiry of the 45 days, it was
kept valid at the request of Mr
Dlamini. The sum of R910 000,00 was
available for the construction and the total amount that the
defendant had for professional
fees and construction was R1, 1
million. He was not told when to start with the project at that
meeting. Mr Dlamini said he would
revert to him.
[13) In March 2002 Mr Dlamini requested
him to avail himself on a specific day at the site where he orally
informed him to start
with the project immediately. On that day he
met with Mr Dlamini, the late Mr Simon Bhembani and his co-member, Mr
Andries Ngwenya.
He asked Mr Dlamini to furnish him with a letter of
appointment. Mr Dlamini told him that he would get the letter. He
urged him
to start with the project immediately and that he would
cancel the contract if he did not start with the project as
requested.
He immediately hired people and started looking for the
survey pegs. He started working long before he received the letter of
appointment.
It was brought to him more than three weeks later. He
proceeded with the work on phase 1 and submitted invoices. Phase 1
was completed
and two weeks before it was completed, he informed Mr
Dlamini that the work was going to be completed and that the machines
should
be removed. He also informed him that should the machines be
removed from the site, it would cost him R50 000,00 to bring them
back to the site to complete the contract. Mr Dlamini told him that
the letter of appointment for phase 2 was in the Municipal Manager's
office. He said he could not access it because there was a municipal
strike at the time and the municipal offices were closed.
[14) He kept on reminding him to furnish
him with the letter of appointment every time he saw him. They
brought more machines to
the site and completed the work on phase 2
in two weeks. Phase 2 entailed the excavation of soil, filling the
layers of soil to
perform platforms 2 and 3. They completed phases 1
and 2. He always asked Mr Van Rensburg to go with him to the site to
show him
the extent of the work done and indicated to him that
quantities made by the consultants were not correct. Everyday people
stopped
at the site and asked questions. Mr Dlamini was at the site
everyday. Nobody told them to stop working while they were busy with
the work on phases 1 and 2 but at a meeting with Mr Van Rensburg and
the consultants where they discussed quantities, Mr Van Rensburg
told
them to stop working until the finance issue was resolved.
[15] He was referred to page 165 of the
bundle of documents and explained that the document on that page was
the minutes of a meeting
of all stakeholders held on 22 August 2002
at Praktiseer satellite office to discuss circumstances surrounding
the contract. He
explained who was present at the meeting. Mr Dlamini
appeared as the chairperson on the minutes, officials from the
defendant which
included Mr Van Rensburg, were present according to
the minutes, Mr Matje from Tsebo, himself together with his
co-member, Mr Ngwenya
and Ms Ledwaba who was a representative for the
department of sports and culture. The following paragraphs of the
above minutes
were read into the record:
"5
PHASE 1 OF THE
PROJECT
The following items are put
forward for discussion by Ms
Lerato Ledwaba:
•
Bill
of
Quantities,
•
Contract
amount,
•
Professional
fees,
•
Donation,
•
Job
creation,
•
Expenditure
to
date,
•
Why
is there no activity by the
contractor?
•
Who
is in charge of the project?
•
From
the Municipality.
6. The chairperson asked Mr Rama
Matje to respond to the
items raised by Ms Lerato
Ledwaba and I nform the meeting
why payments to
Thushanang Construction have been
delayed.
7.
Mr Rama Matje of Tsebo replied as
follows:
He said
he is
not
an Engineer,
but
has
asked
a friend
to do the work for
him. His friend made a mistake with the design
and
plans as well as a mistake with the quantities in the Bill of
Quantities. He said he will consult his lawyer to deal with his
friend. He stated further that a tender was issued during 2001 by
the Northern District Council for Phase I. The value of the
tender
submitted by Thushanang Construction amounted to R1,9 million. Only
R1, 1 million was available,
including professional
fees. Thushanang Construction was awarded
an amount of
R910 000,00 to build Platform I, Toilet
Block, Fencing,
Athletic Track, Sewage and Storm Water, as a
reduced
tender for a reduced Phase I. The Civil
Engineers
underestimated the quantities for Earthworks in the Bill
of
Quantities for this work. Expenditure to date amounts to
R660
000,00 and the additional value of work to complete
the
additional Earthworks must still be paid. The number of
trees
removed was also far more than allowed for in the Bill
of
Quantities. More details will be included in a report. He will also
hold discussions with the contractor. He will rectify the
mistakes made in the Bill of
Quantities.
8.
Thushanang
Construction replied as
follows:
The reason for the increase in the
contract amount is
because the actual quantities exceed
the estimated quantities for the earthworks in the bill of
Quantities.
The tender is subject to
re-measurements, in other words,
the contractor must be
paid for the actual work completed (not
a lump sum
tender). An outside consultant was employed
by
Thushanang to check the quantities and they produced the revised
quantities which exceeded the quantities in the Bill
of
Quantities.
The Earthworks for Phase II was
completed on 19 July
2002.
Work was stopped because of
non-payment of their certificate and because Mr J van Rensburg,
Acting Municipal Engineer, advised
Thushanang Construction not to
undertake further
work until the financial issues are
resolved.
9.
Ms
Lerato Ledwaba replied as
follows:
Thushanang Construction agreed to
undertake certain work to the value of their tender. Ms Lerato
Ledwaba
asked Thushanang Construction who gave them
instruction to
proceed with the Earthworks for Phase
II. Thushanang
Construction replied that Councillor
Collins Dlamini gave them the instruction.
Councillor Collins Dlamini admitted
that he gave
Thushanang Construction an instruction to
proceed with the Earthworks for Phase II.
10.
Mr
Collins Diamini stated that the Engineer had
underestimated
the
amount of Earthworks to be constructed. There were
also
more
trees removed. The Councillor must state his side. The
Council
had made
a
mistake
to appoint
a
person
who is not
an
engineer.
Mr
J Van Rensburg asked Tsebo to check their quantities
and
then
to liaise with the
Contractor.
15.
Mr J Van Rensburg, Acting Municipal Engineer, asked Mr
Matje
when
he will pay Thushanang Construction.
Mr
Rama Matje promised that he will authorise payment as
soon
as
possible.
Mr
J Van Rensburg promised Thushanang Construction that
they
will be paid.
Ms
Lerato Ledwaba from the Department of Sport and Culture,
said
that an amount of R1,0 million will be transferred to
Tubatse
Municipality
to pay for the completion of Phases I and II by
Thushanang
Construction. Tsebo Development Consultants
must
submit
a
revised
report for the project and give
Thushanang
Construction an instruction to proceed with
the
contract.
Mr
Rama Matje agreed that he will submit
a
revised
report
and
instruct
Thushanang Construction to proceed with the
contract."
[16] He indicated the bills
that were submitted to the defendant as per the documents filed of
record, which ones were approved
and paid, and which were not. The
actual amount for the work done excluding VAT according to his
evidence was the sum of R1 321
906,20. The amount of VAT that had to
be included in the aforesaid amount of R1 321 906,20 was R185 066,86
and the amount due and
payable to the plaintiff was the sum of R1 506
973,06 from which an amount of R863 076,90 should be deducted. The
outstanding amount
due and payable to the plaintiff is the sum of
R643 896, 16.
[17]
At the meeting held on 22 August 2002 when it was recorded that the
earthworks for phase 2 was completed on 19 July 2002 nobody
said the
work was incomplete and that the plaintiff was not authorised to
proceed with phase 2. The plaintiff never received a
revised report
from Tsebo as Mr Matje was requested to hand it to it at the meeting
held on 22 August 2002. The plaintiff was also
not instructed to
proceed with the contract as Mr Matje had agreed to do so at the
meeting held on 22 August 2002.
[18] Para 22 of the minutes of the
meeting held on 22 August 2002 reads:
"IDENTIFIED ACTIVITIES FOR PHASE
1
•
Storm
water or drainage
•
2
x Multipurpose tennis courts
•
Fencing
•
Irrigation
Sytems
•
Grass
of the soccer
Pitch
•
Electricity"
[19] He explained that the above
paragraph related to additional items to be constructed on the
earthwork platforms completed by
the plaintiff on the new phase 1.
The work was not yet done and no claim had been made in respect of
it. He further stated that
the plaintiff was not given any
instruction to proceed with the activities in relation to it. Instead
the plaintiff was invited
to submit a tender for the work. The
plaintiff did submit a tender in respect of the work on para 22 on
page 169 of the bundle
of documents but the tender was not awarded to
them. It was awarded to Mohtrans Transport.
[20] He was also referred to page 169(a)
of the bundle of documents. He testified that the document on that
page was an approval
of the minutes appearing on pages 165 to 169.
The document had a list of names of the people who attended the
meeting, approved
the minutes and a space at which each one of them
signed and/or were to sign. Ms Ledwaba who was also present at the
meeting had
passed on and Mr Dlamini became uncooperative and refused
to append his signature on the document. At the time the document was
made available for the people who attended the meeting to sign it,
they were not able to get hold of Mr Matje as he was based in
Johannesburg.
[21] The majority of the councillors and
officials from the Municipality signed the minutes. He stated that he
never received any
objection from any person that the minutes were
not correctly recorded. As regards invoices from the plaintiff that
appeared on
pages 139 to 155 he stated that the plaintiff was paid an
amount less than what it claimed and that what it claimed was less
than
what it could have claimed.
[22] Under cross-examination he
testified that the amount of R50 000,00 included in the total
contract price of R1 913 902,43 was
for contingencies. The amount was
according to the statement (invoice) on page 97 of the bundle of
documents to be deducted in
whole or in part, if not required from
the total amount of the contract price. He explained that at the
tender stage the aforesaid
amount of R50 000,00 should be added to
the subtotal of R1 678 861,78 on the final summary of the tender on
page 97 of the bundle
to make provision for events that could be
needed. At the completion of the work if there are no contingencies
the amount will
be deducted from the contract price. He stated that
the amount of R50 000,00 was eventually added to the contract price.
It was
not supposed to be deducted because there were extras. The
plaintiff calculated the quantities and realised that they were far
much higher than what was provided for in the tender.
[23] He further testified that Annexure
"A" included on pages 16 to 18 of the bundle was compiled
by Tsebo on behalf of
the defendant, tender rates were recorded on
the document and submitted as a tender by the plaintiff. After being
referred to page
42 of the bundle, he explained that the handwritten
rates and amounts appearing on that page, were written by him. When
asked whether
that meant that the plaintiff was bound by them, he
stated that he cannot answer with a yes or no because those were
interpreted
rates which were fixed. He further explained that the
plaintiff did not sign a formal contract document. The letter of
appointment
stated that the plaintiff's tender was a negotiated
tender. According to him to infer that the quantities were fixed was
devoid
of the truth and misleading. He testified that he informed
Tsebo that their quantities were wrong and they did not respond. He
further stated that Mr Van Rensburg was also informed about the
incorrectness of the quantities and in response thereto Mr Van
Rensburg said Tsebo could not penalise the plaintiff for the mistakes
they made. He then referred to the minutes of the meeting
of 22
August 2002.
[24] He conceded that the contract price
for phase 1 was the sum of R907 229, 11 as stated in the letter of
appointment from Tsebo.
When asked why did the plaintiff go for a
higher amount than what is stated in the letter of appointment, he
explained that the
letter of appointment was only received three
weeks after the plaintiff had started with the work. As a result, he
approached Mr
Van Rensburg regarding the quantities. Mr Van Rensburg
conducted an investigation and neither him nor Mr Matje instructed
the plaintiff
to stop working at the aforesaid amount of R907 229,
11. The plaintiff could not leave the project unfinished.
[25] He stated that there was a large
amount of money not paid to the plaintiff and the plaintiff realised
that the stopping of
the work would jeopardise the project.
[26] It was put to him that he submitted
the tender for an amount of R1,9m before he received a letter of
appointment stating that
the contract price for the work to be done
was an amount of R907 229, 11, he continued with the work despite
later on receiving
the letter of appointment for an amount less than
what he tendered for. He testified that at the meeting of 13 December
2001 at
the council chambers where municipal officials, councillors
and community leaders, were present, Mr Dlamini offered the plaintiff
the money that was put together and Mr Van Rensburg requested the
plaintiff to put conditions when accepting the appointment. As
a
result the plaintiff said the payment of the escalation was one of
the conditions. They eventually agreed about the date when
the
balance of the tender amount would be payable and that the plaintiff
would then be awarded the amount.
[27] He was referred to numerous
figures, viz, the amounts of R1 913 902,43, R907 229, 11, R1 321
906,20, R614 637,91 and asked
what was actually claimed as all these
amounts appeared in the bundle of documents and the pleadings. He
explained that the amount
of R907 229, 11 was the amount included in
the letter of appointment from Tsebo as testified above, the amount
of R1 913 902,43
that appeared on page 98 of the bundle was from the
original tender document and R1 321 906,20 as reflected on page 155
of the
bundle (Certificate 6) represented the amount for the work
completed on the property.
[28] When asked who called the meeting
on 22 August 2002 he testified that as the plaintiff they were
requested to attend the meeting
and he could not tell who called it
but said it was an official meeting and the plaintiff was invited to
attend. He was also asked
who took down the minutes at the meeting.
He testified that he was requested to take down the minutes by Mr Van
Rensburg and the
minutes were approved by the people who attended the
meeting and who signed the approval of the minutes document contained
on page
169(a) of the bundle. Further to this, he testified that the
reason why the other people did not sign the approval of the minutes
document was because they could not locate them. He stated that it
was never their intention that the document would be used in
court as
its intention was just to record the facts as they were. It was put
to him after he was referred to pages 169(a), 101
and 108 of the
bundle that the signatures of Mr Van Rensburg on those pages were
different. He testified that he also has different
signatures and
that he was not present when Mr Van Rensburg appended his signatures
on pages 101 and 108. He further testified
that the different
signatures do not make the document invalid. He was asked if he was
saying Mr Van Rensburg had two signatures.
He said it could be or
someone else could have signed on his behalf.
[29] He conceded that when the plaintiff
started with the construction the amount that was available for the
construction and consultation
fees was R1,1m. He also conceded that
the amount the plaintiff was contracted for in relation to a full
negotiated tender was R907
229, 11. The work commenced at the
beginning of March 2002.
[30] When asked why did the plaintiff
continue with the project even after Mr Van Rensburg told them not to
continue, he testified
that the plaintiff stopped with the project on
19 July 2002 and the meeting was held on 22 August 2002. He explained
that he met
with Mr Van Rensburg prior to the meeting of
22 August 2002 where they discussed the
quantities and the discussion culminated into a meeting that was held
on 22 August 2002.
At his meeting with Mr Van Rensburg, they also
spoke about the funding for phase 2. He disputed that he never agreed
with Mr Dlamini
about the project on phase 2.
[31] He disputed that in terms of the
tender awarded to the plaintiff, the plaintiff should not have gone
beyond phase 1 and that
by so doing, they acted recklessly. He also
disputed that the plaintiff was not supposed to do the work in excess
of the amount
of R907 229, 11 they tendered for. He disputed that all
monies due and payable to the plaintiff were paid save for the
retention
amount as agreed.
[32] Mr Dlamini testified as follows: He
is currently employed by the defendant. He was a ward councillor from
2000 to 2006 and
from 2006 he became an official who has been a
social facilitator. As a social facilitator he has been involved in
the establishment
of project steering committees, the establishment
and the overseeing of ward committees, and performing functions of
the protocol
institution. He knows Mr De Nysschen as a person who was
a service provider who worked on a sports facility project at
Praktiseer
where he used to be a ward councillor. He was referred to
the minutes of a meeting held on 22 August 2002 on pages 165 to 169
of
the bundle. He confirmed that his name appeared in the minutes and
that the minutes stated that he was chairing the meeting. When
asked
whether the meeting took place, he said he was not sure about the
date as he used to attend a lot of meetings. He explained
that
meetings are called by them as officials and that the minutes of
those meetings are taken by officials of the municipality
who should
be secretaries attached to the various departments in the
municipality. He stated that he was familiar with all the
names of
the people listed in the minutes.
[33] He disputed that he was the
chairperson of the LED Committee as stated in the minutes and
contended that Mr Mohlala was the
chairperson of the committee. He
stated that he used to be a chairperson of a ward committee by virtue
of his position as a ward
councillor. He explained the procedure of
taking the minutes in a meeting at the municipality. According to him
there will be a
person at the meeting who will be taking down the
minutes and after the meeting that person will type the minutes and
the roll
call that circulated at the meeting which all the people
present signed, will be attached to the minutes. Eventually the
chairperson
will sign all the pages of the typed minutes.
[34] He testified that the attendance
register has not been attached to the minutes. He disputed the
contents of the minutes as
read out on record, in particular
paragraphs 6, 7, 8, 9, 10 and 14. He testified that the project
awarded to the plaintiff was
an allocation from the Northern District
Council as their municipality was not yet functional. The project was
delayed until their
council was elected. In 2000 the District Council
transferred all the projects to the different municipalities. In 2001
their council
decided that Tsebo should continue with the project.
The plaintiff through Mr De Nysschen, was appointed to do the
developments
on the sports field.
[35] At the beginning the project was
big but when the defendant looked at the amount that was allocated
for the project, it realised
that it was too little to complete the
project. It asked an Engineer from Tsebo to downgrade the amount of
work which was initially
there for the project. Tsebo requested the
plaintiff to outline the job as per the downgrading. Phase 1 was
eventually awarded
to the plaintiff. He disputed ever giving the
plaintiff the instruction to proceed with the earthworks for phase 2.
He further
testified that he does not know any person by the name of
Lerato Ledwaba and the name Lerato Ledwaba did not appear on the list
of the people who were allegedly present at the meeting. He testified
that he only knew the name Ledwaba MP which appeared on the
list and
that it belonged to a lady who was attached to the Department of
Sports and Culture at the time.
[36] He contended that the code of
conduct that should have been followed at the meeting, was not
followed and that he did not know
who drafted the minutes.
[37] He disputed that he visited the
site everyday and maintained that the municipality had appointed
officers to do so because
he also had other work to do. He also
disputed that he told Mr De Nysschen to commence with the earthworks
on phase 1 and that
when he asked him for the letter of appointment,
he threatened that should he not start with the work, the tender will
be taken
away from him.
[38] When referred to page 169(a), the
approval of minutes, he confirmed that his signature did not appear
on the document and also
contested Mr Van Rensburg's signature on the
document. He maintained that the minutes on pages 165 to 169(a) were
not the minutes
taken at a meeting of the defendant in that they were
not on the letterhead of the defendant, no roll call was attached to
them
and they did not indicate who was the secretary at the end. He
testified that he only saw the minutes a day prior to the trial.
[39] He disputed that Mr De Nysschen
informed him two weeks before the completion of phase 1 that if he
was to remove the machines
from the site, he would incur costs to
return them to the site. He also disputed that he stopped him from
removing the machines
on the site and instructed him to continue with
phase 2. Further to this, he disputed that Mr De Nysschen requested
him to furnish
him with a letter of appointment for phase 2 and that
when he made such a request, he told him that he could not access it
because
it was in the Municipal Manager's office and at that time
there was a strike at the municipality. He was adamant that the
plaintiff
was only awarded work on phase 1 and that if there was
money for phase 2, the project would have gone on tender to also give
other
people a chance to bid.
[40] He was asked under
cross-examination whether he denies that the meeting on 22 August
2002 took place and that the people whose
names appear on the list
attached to the minutes, attended the meeting. In reply thereto he
testified that he used to attend a
lot of meetings and he does not
recall that particular meeting. When asked whether there was a
possibility that such a meeting
could have taken place on that day
and that those people could have been present at that meeting but he
could not just recall it,
he testified that he found it strange to
see such a document with his name on it without his signature to
indicate that he indeed
attended the meeting. He conceded that in a
number of meetings he attended, which included those where the
plaintiff, Tsebo and
council officials were present, the sports
complex and its development were discussed. He was asked where were
the minutes of such
meetings they held in relation to the project
that was awarded to the plaintiff and he responded that he did not
know that they
would be required as they were lying in the archives.
He further testified that he did not tell his legal representatives
that
meetings were held where the project awarded to the plaintiff
was discussed because he was only called to testify whether he knew
Mr De Nysschen and the plaintiff, their project and what he knew
about the project awarded to them.
[41] He was asked whether he consulted
with his counsel regarding the matter. He testified that two days
prior to the trial, he
consulted with his counsel and he showed him a
copy of the minutes of the meeting of 22 August 2002. He testified
that he told
his counsel that the minutes were irregular and that the
defendant kept its own minutes. He testified that despite all this,
he
did not know why the minutes of the meetings held in relation to
this matter were not before court. He disputed that Mr De Nysschen
could have been requested by a representative of the defendant to
draft the minutes of the meeting of 22 April 2002. He was asked
if he
recalled a meeting with these people present and he testified that he
did not and that the people whose names were mentioned
were his
colleagues. He further stated that a signed roll call would have
assisted him because the events happened a long time
ago.
[42] He testified that he recalls a
meeting where Mr Matje was present together with Mr De Nysschen and
Mrs Ledwaba because Ms Ledwaba
was tasked by the Department of
Sports, Arts and Culture to attend the meeting as the project awarded
to the plaintiff was funded
by the department. He was referred to
paragraph 7 of the minutes and asked why could he remember what he
said and did not say at
the meeting while he did not remember when
was the meeting held and who attended it. He testified that in terms
of running the
projects, they call two sets of meetings which include
a stakeholder's meeting and a technical meeting. He explained the
difference
between those meetings and contended that that was the
reason he could respond to the allegations made in the minutes. It
was put
to him that the issue of two sets of meetings as he testified
was not put to Mr De Nysschen when he testified and he was asked
whether he knew why that evidence was not put to him. He testified
that he did not know why the evidence was not put to Mr De Nysschen
when he testified but stated that Mr De Nysschen knew about the two
sets of meetings. After being referred to page 165 again and
referred
to the names of the people who were allegedly present at the meeting,
he conceded that such a meeting could have taken
place but
contended that he does not recognise the minutes of the
meeting after it was put to him that pages 165 to 169 was a correct
record
of a meeting that took place on 22 August 2002.
[43] He was further asked about his
challenge to Mr Van Rensburg's signature on page 129 of the bundle
and whether Mr Van Rensburg
still had dealings with the defendant. He
testified that Mr Van Rensburg was no longer working for the
defendant but was still
in Burgersfort and running projects for the
District Municipality.
[44] He was referred to pages 16 to 98
of the bundle of documents. According to the plaintiff's evidence
which was not contested
these pages record the tender for phases 1
and 2. He was asked if he knew what phase 2 entailed and he testified
that he did not
have all the details of phase 2 as that was handled
by the District Municipality but conceded that the development was
done in
Praktiseer which was his ward at the time and that the
project was for the improvement that would benefit the community of
his
ward. When asked how involved was the Council and the community
in the project that had started, he testified that the Council had
appointed a project manager who also appointed an inhouse project
manager who should have been on site on day-to-day basis to see
what
was happening on site. He was asked who these managers were in
relation to the project awarded to the plaintiff and he testified
that he only remembered that Mr Matje was the project manager and did
not remember who the inhouse manager was.
[45] He also testified that he recalled
that the soil turning was done on the project. When told that Mr De
Nysschen testified that
he started work on phase 1 three weeks before
he was given a letter of appointment and that it was never put to him
that this evidence
was going to be disputed by the defendant's
witnesses, he testified that the project only started after Mr De
Nysschen was furnished
with a letter of appointment.
[46] He disputed that the plaintiff did
work on phase 2 although he could not recall what phase 2 was all
about. According to his
evidence the project that was awarded to the
plaintiff was divided into two because of the shortfall of the amount
allocated to
it. Excavations were done where the plaintiff was to put
the soccer field. The plaintiff also levelled the area where the
tennis
courts were to be put. It also installed storm water drain
pipes and applied for an electricity line from Eskom. The line was
constructed.
It also installed athletic tracks and opened drains for
storm water. He was not sure about the other things as he testified
that
they could have been done by other people who have also been
working there at the time he was giving evidence. He testified that
the work he stated was done by the plaintiff, he saw it because as
and when they held monthly meetings they used to go on site
and see
what was happening there. He was asked as to why did he not stop the
plaintiff from continuing with the excavation of the
tennis court as
he could see that that work formed part of phase 2. He testified that
even if what the plaintiff did fitted under
phase 2, the plaintiff
worked according to an instruction and what was allocated to the
project. All what the plaintiff did fell
under phase 1. When told
that it was the first time the court was told that the levelling of
thetennis court was part of phase
1 despite Mr De Nysschen's evidence
that it fell under phase 2, he testified that the plaintiff was paid
in terms of what it was
instructed to do in respect of phase 1. He
was referred to paragraphs 8.2 and 8.3 of the plaintiff's declaration
and told that
these paragraphs were not disputed in the defendant's
plea. He testified that he knew nothing about that and that all what
he knew
was that all the work done by the plaintiff fell under phase
1. He was also asked as to how did he know that the job done by the
plaintiff fell under phase 1 if he had earlier testified that he did
not know what phase 2 entailed. His response was that he knew
that
because after their engineers, Mr Matje and Mr De Nysschen had agreed
on what the plaintiff was to do, the Council of the
defendant took a
resolution that the work should be limited to the reduced work that
fell under phase 1.
[47] He conceded that the tender for
phase 1 was only awarded to the plaintiff a year or more after he had
submitted the tenders
for phases 1and 2. He also conceded that over a
period of a year, costs for material and fuel increased. He disputed
that he ever
had a conversation with Mr De Nysschen where he
requested him to keep the tender open and invited him to put
conditions for keeping
the tender open. He also disputed Mr De
Nysschen's evidence that he agreed to keep the tender on phase 1 open
on condition that
the tender would be subject to an escalation and
that he would be awarded phase 2 of the project. When asked if he
knew why it
was never put to Mr De Nysschen that conditions were
attached to keeping the tender on phase 1 open, he testified that Mr
De Nysschen
had the letter of appointment which clearly stated that
he was only awarded phase 1 and phase 2 was put to thepublic for
tender.
He was asked why was the tender for phase 2 not before court
and his response was that the Northern District Municipality Council
handled the tenders for the two phases but the one for phase 1 was
eventually given to them to handle. He also testified that Mr
De
Nysschen knew that the tender for phase 2 was handled by the District
Municipality but failed to attend the briefing sessions.
[48] Mr Matje also testified. His
evidence was briefly as follows: The Close Corporation, Tsebo, was
dissolved in 2007. He is a
qualified electrical engineer. He has a
Master's degree in Electrical Engineering which he obtained in 1991.
He is also a professional
registered engineer with the ECSA. He was
registered as a Professional Engineer in 1996. As a professional
engineer he is allowed
to constitute and lead teams, and to oversee
the construction on behalf of the client. Sometime in 2002 he was
requested by the
defendant to assist them with a project. His
practice number is 960444. He was referred to the letter of
appointment given to the
plaintiff and he explained that it was aimed
at formally instructing the plaintiff to commence work at the Sports
Recreation Centre
in Praktiseer for phase 1. The appointment was for
the total sum of R907 229, 11. The letter is not dated. He could not
say with
certainty when was the letter sent to the plaintiff but
thought it could have been in the second week of February 2002
because
he was invited to attend a meeting on 22 February 2002.
[49] He authorised five payments to the
plaintiff. He confirmed a payment of the sum of R171 974,47 as
reflected on page 101 of
the bundle of documents.
[50] He was referred to the minutes of
the meeting of 22 August 2002 and their approval. He contended that
he knew nothing about
the documents. His name appeared on the minutes
but his signature did not. He first saw the minutes on the first day
of the trial
and he has got nothing to do with them. He did not
recall a meeting allegedly held on 22 August 2002. He could recall
that they
had a meeting with the Department of Arts and Culture and
the members of the community at the defendant's offices in
Praktiseer.
He disputed the contents of paragraph 7 of the minutes
and maintained that at that time he was already a professional
engineer.
He explained that his role on the project was that of a
project manager and that they had a designated team of three other
professionals
which consisted of a professional civil engineer, Mr
Sam Selatile, a professional Quantity Surveyor, Mr Mohapi Makosho and
an architect,
Mr Makgweba Tlale. Although he did not agree with the
first paragraph of paragraph 7 on page 166, he agreed with the first,
second
and third paragraphs of paragraph 7 on page 167. He testified
that there was an underestimation of the earthworks that were
necessary
and when that was realised, they had discussions with the
contractor and additional earthworks were compensated under phase 1.
[51] In all the meetings he attended
when he ran the projects, an attendance register was circulated for
all delegates to sign.
He did not sign page 169(a) and the reason
could be that he never had sight of the minutes.
[52] Under cross-examination he conceded
that there was an underestimation regarding the calculation of
earthworks on phase 1 and
the underestimation was discussed in a
number of meetings after the work had started. He could not recall at
what stage the issue
was raised for the first time but said it could
have been after the letter of appointment was issued. He conceded
that the underestimation
implied that there was additional work to be
done on the earthworks and that would increase the original contract
price if the
rest of the work was to be done as per the appointment
letter. He testified that he only studied electrical engineering and
never
took any subject relating to civil construction which entailed
earthworks. He confirmed Mr Dlamini's evidence that he was the
project
manager but was not on site on a daily basis. He did not have
anybody else representing him on site on a daily basis. When asked
how would Tsebo know whether the actual work was done on site if none
of them was on site on a daily basis, he said they had agreed
with
the defendant that they would visit the site only once a week.
[53] He conceded that the excavation and
the levelling of the tennis court form part of phase 2. He was asked
whether he agrees
that the plaintiff worked on the excavation and
levelling of the tennis court and his response was
"this
is
a
difficult
question
for
me
in
the
sense
that
I
cannot
answer
it
in
my role as
a
project manager simply because I did not have
a
mandate for phase II from the client but I can
confirm that I observed the plaintiff's equipments working on the
tennis court platform"
.
When asked why did he not stop the
plaintiff when he saw them working on the tennis court and tell them
that he did not have a mandate
for Phase 2, he testified that he did
discuss the matter with Mr De Nysschen verbally and Mr De Nysschen
told him that he was appointed
by the community to proceed with the
work. When asked why was that evidence not put to Mr De Nysshen when
he testified, he referred
to a letter on page 186 of the bundle from
Tsebo's attorneys to the plaintiff's attorneys. The letter is dated
30 October 2002
and is addressed to Mr Rob Dick per telefax. It reads
as follows:
"Dear
Sir
RE: SPORTS ANO RECREA T/ ON
FACILITIES FOR
TUBATSE TOWNSHIP CONTRACT NO. TS
0121/2000
1.
We
represent Tsebo Development Consultants
CC
who
have
handed
us your letter of the
25th
instant
for our attention
and
reply.
2.
From
our instructions, we advise that our client is not
authorised
to
endorse your client's certificate numbers and as such its
failure
to do so can neither be unjustifiable nor
unlawful.
3.
Whether
your client has completed the work referred to in
the
certificate
or not, cannot be determined by our client for
the
reasons
set out
above.
4.
It
appears that your client engaged in certain works in
anticipation
of our alleged respective clients being appointed
in
terms
of the
contract.
5.
In
the circumstances our client has instructed us to inform
you,
as
we
hereby
do,
that
it
will
not
and
cannot
comply
with
your
client's
demand and any action which your client may deem fit to
institute,
will be vigorously
defended.
Yours
faithfully,
MARGOLIS AND ASSOC /A TES INCORPORA
TEO
per: Mr. A.H. Margolis
cc: TSEBO DEVELOPMENT CONSULTANTS
CC
Ref Mr Rama Matjl'
[54] He testified that in the above
letter his attorneys informed the plaintiff's attorneys that Tsebo
did not have any mandate
for phase 2. Counsel for the plaintiff put
it to him that he understood the correspondence to be after the fact.
He asked him why
was that fact not put to Mr De Nysschen when he
testified. His response was he could have missed that evidence in his
consultation
with the defendant's attorneys. When asked whether he
told the defendant that the plaintiff was working on phase 2, he
testified
that he cannot recall that but he could have discussed the
matter with Mr Van Rensburg who was the defendant's acting Engineer
at the time.
[55] When he was told that Mr De
Nysschen testified that he actually started working on the project
three weeks before he received
the letter of appointment he testified
that he cannot recall that but in terms of actual physical work on
site, Mr De Nysschen
started all the work after he was given the
letter of appointment. He further said he can agree because if he had
done some other
work before like, for an example, the surveying of
pegs, he could have commenced the work on phase 1 before he received
the letter
of appointment. He would not have known who would have
instructed him to start working before he received the letter of
appointment.
[56] He conceded that a meeting where
there was a discussion about the incorrect calculation of quantities
as referred to in paragraph
7 on page 165 could have taken place.
ANALYSIS
PHASE
1
[57] It is common cause between the
parties that the plaintiff worked on the construction of the sports
field on phase 1 at the
defendant's special instance and request, and
that the work was for a reduced tender for the total sum of R907 229,
11. The total
amount that was available for professional fees and
construction was R1, 1 million. It is also common cause that the
agreement
between the parties with regard to the construction of the
sports field at Tubatse was only entered into more than a year after
the plaintiff had submitted a tender for both phases 1 and 2 which
was not accepted. According to Mr De Nysschen's evidence the
agreement was reached after negotiations took place. These
negotiations included a request by Mr Dlamini of the defendant to him
to keep the tender open and discussions regarding the reduction of
the work on phase 1 because of the amount that was available
at the
time. Mr De Nysschen also testified that at some stage Mr Van
Rensburg asked him if he was prepared to work at a reduced
fee and
what his terms would be. He indicated in his evidence that because of
the fact that it was more than a year he had submitted
the tender, he
put a condition that the price was subject to an escalation. He also
explained the issue of contingencies and how
they were going to work.
[58] His evidence was clear that he
commenced working on phase 1 three weeks prior to receiving the
letter of appointment from Tsebo
after Mr Dlamini instructed him to
do so. Mr Dlamini disputed instructing the plaintiff to commence with
the construction on phase
1 prior to the issue of the letter of
appointment.
[59] Mr Dlamini also disputed that the
plaintiff commenced with the project prior to the issue of the letter
of appointment but
Mr Matje conceded under cross-examination that the
plaintiff could have started with the project on phase 1 before it
was issued
with the letter of appointment. It is important to note
that Mr De Nysschen was not told during cross-examination that any of
the
defendant's witnesses was going to dispute that he commenced with
the project on phase 1 prior to being issued with the letter of
appointment.
[60] Mr De Nysschen's further evidence
was to the effect that after he had received the letter of
appointment from Tsebo, he realised
that there were incorrect
calculations on the work to be done on phase 1. He discussed the
matter with Mr Van Rensburg and Mr Van
Rensburg conducted some
investigations. Neither Mr Matje and Mr Van Rensburg stopped the
project even though they were aware of
what was happening. Mr Matje
conceded under cross-examination that there was an underestimation
regarding the calculation of earthworks
on phase 1 and that this
underestimation was discussed in a number of meetings after the work
had started. He could not recall
when was the issue raised for the
first time but conceded that it could have been after the letter of
appointment was issued.
[61] The evidence of the plaintiff
through Mr De Nysschen in relation to the work done on phase 1 was
basically that although there
was an agreement as to what work was to
be done and the amount for the work to be done, because of the
underestimation of the quantities
of the earthworks to be done, the
fact that prices increase due to inflation and the period of time
that lapsed from the submission
of the tender and the conclusion of
the agreement, there had to be an escalation on the agreed contract
price and the amount of
contingencies thereof to cater for such
situations. Although it is in dispute that Mr Dlamini instructed him
to proceed with the
project prior to the issuing of the letter of
appointment, no evidence was adduced by the defendant as to who could
have instructed
him to proceed with the work. Mr Matje who was the
project manager testified that there was an agreement between him and
the defendant
to visit the site once a week. I find that improbable
taking into account the nature of the work that was done on site. It
is also
strange that Mr Matje who saw that the plaintiff had
commenced with the project on phase 1, e.g. the surveying of the
pegs, etc,
according to his evidence, did nothing to stop him or
rather instruct Mr Van Rensburg or his inhouse manager, who was a
civil engineer,
to stop the plaintiff from continuing with the
project prior to issuing him with the letter of appointment. What I
also find strange
in Mr Matje's evidence is that according to him the
plaintiff was paid for the extra work that he did on phase 1. No
evidence was
adduced as to what was the amount for the additional
work paid. Mr Matje conceded that the underestimation implied that
additional
work had to be done on the earthworks and that would have
increased the original contract price if the work was to be done in
terms
of what was stated in the letter of appointment. The parties
are agreed about what was paid to the plaintiff. The dispute revolves
around the fact that the plaintiff alleges that it did extra work due
to the underestimation of the quantities of the earthworks
on phase 1
by Tsebo and that it submitted invoices but the defendant only paid
some and did not pay others.
[62] The evidence of Mr De Nysschen was
very comprehensive, logical and clear as to what actually transpired
between the parties
and how the events unfolded. Despite the fact
that he kept on mentioning the name of Mr Van Rensburg, in his
evidence, who acted
as the defendant's engineer at the time, the
defendant did not call him as a witness to contest the allegations by
Mr De Nysschen.
Further to the above it was clear from the evidence
of Mr Matje that although he was a project manager at the time, he
was not
a civil engineer like Mr De Nysschen. He had appointed an in
house manager, who according to his evidence, was a civil engineer
who could have been involved in construction like Mr De Nysschen. The
in house manager was not called to support the defendant's
case in
challenging Mr De Nysschen's evidence. Mr Matje testified that
although he could constitute, lead teams and manage projects,
he only
studied electrical engineering, he never took any subject relating to
civil construction which entailed earthworks.
[63] Mr Matje did not dispute the fact
that because of the underestimation of the quantities of the
earthworks that had to be done
on phase 1, additional work had to be
done. He also did not dispute the fact that after a year prices
increase due to inflation.
It was also not disputed that the
additional work was done. I concur that given the evidence the
contract price had to increase.
From this evidence it is clear that
the amount of R 907 229, 11 stated in the letter of appointment would
not have been enough
to complete the earthworks on phase 1. The court
can safely accept this evidence as it tallies with Mr De Nysschen's
evidence which
the court finds probable.
[64] Mr Dlamini did not make a good
impression to the court. He was evasive when he was asked simple
questions and he gave detailed
responses to questions which did not
require much. He kept on referring to how things are done at the
municipality but failed to
produce evidence in support thereof. He
was just disputing everything that Mr De Nysschen said in his
evidence.
[65] Surely I do not find any reason why
Mr De Nysschen would just implicate Mr Dlamini if he was never
involved in the project.
I also do not find any reason why Mr De
Nysschen would have started with the project on phase 1 if he was not
instructed to do
so.I will deal with the issue of the minutes of 22
August 2002 later in the judgment. I also find it strange that there
was no
one between Mr Dlamini, Mr Matje and his team who according to
them visited the site on a daily basis to see what was happening.
therefore under the circumstances find that the evidence of Mr De
Nysschen is probable. I find that Mr Dlamini could have visited
the
site on a daily basis as testified by Mr De Nysschen.One should also
not loose sight of the fact that Mr De Nysschen testified
that he
always invited Mr Van Rensburg to the site to show him what was
happening. This evidence was not contested. Mr De Nysschen
was never
shaken during cross-examination. He stuck to his version which
tallies with the pleadings and the minutes of 22 August
2002. I
therefore accept from the totality of the evidence that indeed Mr
Dlamini instructed Mr De Nysschen to commence with the
earthworks on
phase 1 prior to him being issued with a letter of appointment. No
evidence was adduced that Mr Dlamini did not have
the authority to
instruct Mr De Nysschen to commence with the construction of the
earthworks on phase 1. Mr Dlamini only denied
that he instructed him
to do the work.
PHASE
2
[66] Mr Dlamini disputed that he
instructed the plaintiff to continue with the work on phase 2. He
testified that he did not know
what phase 2 entailed but conceded
that although the tender was handled by the District Municipality,
the development was done
in Praktiseer and that the project was for
the improvement that would benefit the community of his ward. It is
improbable that
while Mr Dlamini testified that he did not know what
work formed part of phase 2, he would have known if the plaintiff did
work
that formed part of phase 2.
[67] He conceded that excavations were
done where the plaintiff was to put the soccer field and that the
plaintiff also levelled
the area where the tennis courts were to be
installed. His evidence was also to the effect that the work that he
testified was
done by the plaintiff he witnessed it because when they
held monthly meetings they would go on site and see what was
happening.
I find this evidence strange because Mr Dlamini initially
distanced himself from visiting the site when it was put to him that
Mr De Nysschen testified that he visited the site on a daily basis.
He even went to the extent of testifying that there were people
who
were designated to visit the scene as he had other work to do. I
still maintain that Mr De Nysschen would have no reason to
involve
him if he was not part of the project. I found Mr De Nysschen to have
been candid and honest in his evidence.
[68] When Mr Dlamini was asked why did
he not stop Mr De Nysschen from continuing with the excavation of the
tennis court as he
could see that that formed part of phase 2, he
testified that even if what the plaintiff did fell under phase 2, the
plaintiff
worked under an instruction and his project was only
limited to phase 1. His evidence became so muddled in that while he
mentioned
that the excavation of the tennis court fell under phase 2,
at the same time he mentioned that because of the instruction that
was given to Mr De Nysschen in terms of the letter of appointment,
the work fell under phase
1.
This
evidence is improbable if one also takes into account that
paragraphs
8.2 and 8.3 of the plaintiff's
declaration as discussed above were not disputed in the defendant's
plea.
[69] What I also found strange and
improbable in Mr Dlamini and Mr Matje's evidence was that when they
were asked as to why while
they observed the plaintiff working on
phase 2, they did nothing to stop it as they knew what it was
supposed to do, they testified
that phase 2 was not under them. It
was a tender that was handled by the district. Mr Matje was managing
the project awarded to
the plaintiff for phase 1. He knew that what
the plaintiff was doing was going to have consequences. Initially
when he testified
it was like the continuation of work by the
plaintiff on phase 2 did not bother him because according to him the
plaintiff had
to work according to the letter of appointment that was
issued to it. Upon extensive cross-examination he testified that he
confronted
Mr De Nysschen about working on phase 2 and Mr De Nysschen
told him that he was appointed by the community. He still did nothing
although he knew the consequences. He knew for a fact that the
plaintiff was only on site because of the work that he assigned
it to
do in terms of the letter of appointment but he left it to continue
with what it was not supposed to do.
[70] I also found it strange that Mr
Matje only mentioned that he confronted Mr De Nysschen about working
on phase 2 after Mr De
Nysschen had finished testifying. Mr De
Nysschen was not told while he was testifying that Mr Matje
confronted him and he told
that he was instructed by the community to
continue to work on phase 2.
[71] A lot was said about the minutes of
the meeting allegedly held on 22 August 2002 and the fact that they
did not reflect what
happened at the meeting, they were not on the
defendant's letterhead, they were not taken by the officials of the
defendant and
were not signed, etc. The evidence of Mr De Nysschen
was clear that when the minutes were taken, they were not intended to
be used
in court. Mr De Nysschen brought the minutes to court in
order to prove the plaintiff's case against the defendant. The
defendant's
witnesses went a long way to dispute each and every
statement made in the minutes but failed to produce any minutes to
support
their case. The minutes
of 22 August 2002 were discovered and parties exchanged
documents. Surely if the defendant was candid in its evidence, it
should
have also discovered its own minutes which supported its case.
To come to court and say the minutes were in the archives and could
be available on request is untenable. The approach taken by the
defendant in defending this case was so wanting and lacking. The
minutes of the meeting of 22 August 2002 were the only minutes
available at the trial. Most of what was recorded in the minutes,
was
common cause, it tallied with the plaintiff's cause. I do not have
any reason not to accept them and conclude that they correctly
recorded what was discussed at that meeting. I further accept that
given the totality of the evidence, Mr Dlamini is the person
who
instructed Mr De Nysschen to continue to do work on phase 2 and did
not furnish him with the letter of appointment.
[72] Issues were raised that summons was
issued in 2003, was abandoned and eventually a declaration was issued
in 2013. This also
included the issue of the different amounts
allegedly claimed in the summons and the declaration and also the
amendment of the
amount claimed. I find the issues irrelevant as they
were never raised in the pleadings. Further to the above Mr De
Nysschen was
asked to explain the different amounts during
cross-examination. I have dealt with his evidence regarding this
aspect. His evidence
was clear as to how the amounts were arrived at.
He referred to the bundle of documents. His evidence tallied with the
documents
filed of record.
[73] The plaintiff did work on phases 1
and 2 at the defendant's special instance and request. It submitted
invoices as per certificate
number 6 as contained in the bundle of
documents. The certificate was not contested and there has not been
any evidence to disprove
that the plaintiff did in fact work as it
testified. No evidence was adduced that the work as done by the
plaintiff was defective
or incomplete and/or that the plaintiff was
fully paid for the work done. The plaintiff testified that it
completed phase 2 on
19 July 2002. No other evidence was led to the
contrary. It is therefore my view that the plaintiff should be paid
in full for
the work done on phases 1 and 2. I am therefore satisfied
that the plaintiff has established its case on a balance of
probabilities.
It is therefore entitled to the relief sought.
[74] In the result I make the following
order:
74.1
The
plaintiff's claim succeeds with
costs.
74.2
The
defendant is ordered to pay the amount of R643 869, 17 to
the
plaintiff with interest on the aforesaid amount of R 643 869, 17 at
15,5%
per
annum a
tempore
morae
from
the date of the issue of
summons.
M J TEFFO
JUDGE OF THE HIGH COURT
OF SOUTH AFRICA GAUTENG DIVISION, PRETORIA
[73] The plaintiff did work
on phases 1 and 2 at the defendant's special instance and request. It
submitted invoices as per certificate
number 6 as contained in the
bundle of documents. The certificate was not contested and there has
not been any evidence to disprove
that the plaintiff did in fact work
as it testified. No evidence was adduced that the work as done by the
plaintiff was defective
or incomplete and/or that the plaintiff was
fully paid for the work done. The plaintiff testified that it
completed phase 2 on
19 July 2002. No other evidence was led to the
contrary. It is therefore my view that the plaintiff should be paid
in full for
the work done on phases 1 and 2. I am therefore satisfied
that the plaintiff has established its case on a balance of
probabilities.
It is therefore entitled to the relief sought.
[74] In the result I make the following
order:
74.1
The
plaintiff's claim succeeds with
costs.
74.2
The
defendant is ordered to pay the amount of R643 869, 17
to
the
plaintiff with interest on the aforesaid amount of R 643 869, 17 at
15,5%
per
annum a
tempore morae
from
the date of the issue of summons.
MJ TEFFO
JUDGE OF THE HIGH , CO
URT OF SOUTH
AFRICA GAUTENG DIVISION,
PRETORIA
FOR THE PLAINTIFF: J L
ENGELBRECHT
INSTRUCTED
BY:
SMITH VAN DER WALT
ATTORNEYS
FOR THE DEFENDANT: E I MOOSA
INSTRUCTED BY:
ASGER GANI ATTORNEYS
HEARD ON :
12 JUNE 2015
HANDED DOWN ON: 4 MAY
2016