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[2016] ZAGPPHC 1130
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Dark Fibre Africa (Pty) Ltd v UDS Civils CC (40552/2013) [2016] ZAGPPHC 1130 (4 November 2016)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
04/11/2016
CASE
NO: 40552/2013
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
REVISED
DARK
FIBRE AFRICA (PTY) LTD
(REGISTRATION
NUMBER 2007/013968/07)
PLAINTIFF
and
UDS
CIVILS CC
REGISTRATION
NUMBER: 2011/062984
RESPONDENT
JUDGMENT
KHUMALO
J
INTRODUCTION
[1]
In this action, the Plaintiff is claiming for damages against the
Defendant in the amount of R165 785.37 it alleges to
be the
reasonable costs
for the repair of its fibre optic cable and duct
damaged allegedly by the Defendant's employees ("employees")
acting within
the course and scope of their employment on or about
May 2012.
[2]
The Plaintiff alleges that the Defendant's employees cut the duct and
cables in Plaintiff's fibre optic cable network constructed
on, under
and along Houghton Drive, near Rodean School in Johannesburg during
excavation works in the area.
HISTORICAL
BACKGROUND
[3]
The Plaintiff is the holder of a licence for an Electronic
Communications Network and an Electronic Communications Network
Services issued in terms of the
Electronic Communications Act, 36 of
2005
. One of its principal business is the construction of dark fibre
optic cable network upon, under, along or across streets and/or
roads
which consists of the laying of underground ducts containing the
fibre optic cables, selling the fibre optic cables and leasing
space
in the fibre optic cable ducts to third parties. It is the service
provider of all large cellular companies.
[4]
The Defendant's business on the other hand was
inter alia,
conducting excavation works through its Civils Company.
[5]
It is common cause that on or about May 2012 the Plaintiff's fibre
optic cables and duct under and along Houghton Drive near
Rodean
School ("site") were damaged.
[6]
The Plaintiff alleges in its particulars of claim that the employees
of the Defendant damaged the cable acting negligently,
in one or more
or all of the following respects:
[6.1]
They failed to determine the presence and location of the underground
networks prior to commencing excavations; by having
no regard to
Defendant's route markers at the locations; and or
[6.2]
failed to exercise due, proper and reasonable care whilst performing
the excavations; and/or
[6.3]
should have foreseen the presence of underground networks and taken
reasonable steps to guard against causing damage to such
networks.
And
that the amount claimed is for the reasonable costs of repair.
[7]
The Defendant has pleaded a Special Plea of misjoinder alleging that
the Plaintiff has cited a wrong party. It alleged that
the Plaintiff
actually entered into a contract, partly written and partly verbal,
with a party called Underground Detection Services
CC, followed by a
bare denial.
[8]
An amended Plea filed subsequently by the Defendant did not amend
anything.
[9]
In Replication, the Plaintiff refuted Defendant's Special Plea
pleading that its action is based in delict, and not contractual.
[10]
The Plaintiff further pleaded that, if the court finds that
Underground Detection Services CC instead of UDS Civils CC
(Registration
number: 2011/062984/23) caused the damages as alleged
in its particulars of claim, in that event it pleads that UDS Civils
CC and
Underground Detection Services CC act and operate as
alter
egos of one another and do not operate as separate corporate
entities.
In the premises the court should find that they
should
be regarded as one and the same entity
for purposes of
attributing liability for damages suffered by the Plaintiff as a
result of the negligent conduct of either of the
aforesaid entities.
[11]
The Defendant's reply to questions raised by the Plaintiff in the
pre-trial conference, indicated that its case is that
Underground
Detection Services CC was the Company that was the appointed
contractor carrying out the excavations,
alternatively tree
felling or grounds clearance works on site. It is for that reason its
Plea alludes to an existent contract between
the Plaintiff and
Underground Detection Services. It however did not proceed with the
contract allegation.
[12]
The issue to be determined is:
[12.1]
whether it is the employees of the Defendant's or those of
Underground Detection Services' that caused damage to the Plaintiff's
fibre and optic cable network.
[12.2]
if the Defendant can still be held liable notwithstanding Underground
Detection Services being the company contracted to
do the work.
[13]
The parties agreed as recorded in their pre-trial minute that the
question of onus would be argued at trial, though Plaintiff
bears the
onus of proof. In dealing with the evidence I have referred to the
Defendant in its name and referred to the witnesses
using either
their names or surnames, that is only for the purpose of easy
reference and not intended for any other purpose. All
parties and
witnesses held to be of equal standing before the court.
EVIDENCE
LED
[14]
Evidence was, on behalf of the Plaintiff led by its employee, Lourens
Maritz ("Maritz"), Mr Veon Van Niekerk ("Van
Niekerk")
an erstwhile employee of the Defendant (UDS Civils CC), and Karlien
or Colin Jordaan ("Karlien"). On behalf
of the Defendant it
was led by Mr Andrew Rowse ("Rowse") and Travis Holman
("Holman"), a sole member/director
of the Defendant.
[15]
Maritz's testimony was that he worked for the Plaintiff as a
preventative maintenance officer responsible for ensuring that
no
breaks happen to their infrastructure. In November 2011 he attended a
kick-off meeting with a company that was commissioned
or contracted
to do the upgrading of the intersection near Rodean School in
Houghton ("the site"). Present at the meeting
was Veon Van
Niekerk whom he identified to be working for the Defendant since he
had the UDS Civils CC logo on the door of his
truck. Van Niekerk also
confirmed his employment with the Defendant and in the minute of that
meeting was recorded to be from the
Defendant.
[16]
They discussed the wayleave, which is a document that indicates to
the upgrading company the Plaintiff's services within the
vicinity.
It put terms and conditions of their performance of the work in
relation to such services. K & T Engineering who
were the
Principal Engineer had applied for the wayleave to be issued to UDS
Civils CC, the company it commissioned to do the work.
The wayleave
specified that the depth of Plaintiff's services or cables under the
ground could not be guaranteed and specifically
directed that the
Plaintiff be called to indicate the location of the route path were
the cable was in the ground. The two walked
to the road, which
according to Maritz was clear where the trench line was and the
Defendant marked the area of its locality. Its
depth however could
not be verified.
[17]
Maritz said UDS Civils started to work around the area in February
2012. On numerous visits he made to the site to see if everything
was
ok he always found Van Niekerk. At some stage the Defendant had dug a
pilot hole close to their services to determine how deep
they could
go. He continued their work which was merely prevention and
intervention which they did until May 2012.
[18]
However on 24 May 2012 after receiving information about the damaged
cable he visited the site and found workers wearing overalls
with the
Defendant's logo. He took photos of the equipment and vehicles on
site that had a UDS Civils sticker on the windscreen
and their
license plates. There was also a truck that had the Defendant's
marking that took capstones and worked inside the road.
The on-site
supervisor and a TLB truck operator confirmed the information about
the contractor that it was UDS Civils. He personally
had always dealt
with Veon. He found that 4 out of the 6 cables in the duct were
damaged. The situation sanctioned a fine for the
disruption of
services payable after 4 hours of the duct being gone, so they had to
urgently attend to the temporary repair of
the duct.
[19]
When he was cross examined he said he could not deny that the logo
UDS Civils could stand for Underground Detection Services
as well. He
was referred to an invoice that reflected the logo and the name
Underground Detection Services t/a UDS Civils. Save
for that question
his evidence was not challenged.
[20]
Van Niekerk testified that he was employed by the Defendant between
the period 2011 and 2012 as a construction manager. When
he was
applying for the job he was interviewed by the two brothers, Tarso
and Travis Holman ("the Holmans")
both controlling
directors and they both signed his contract of employment.
They
operated under the name USO Civils CC. He was paid a monthly salary
by UDS Civils CC and received instructions from the Holmans.
Both
UDS Civils and Underground Detection Services were formed by the
brothers. However he was contracted and paid by UDS Civils
CC.
[21]
On 3 November 2011, he attended the kick off meeting on site on the
instruction of his boss, Travis Holman ("Travis"),
where
the discussion about the whereabouts of the cables, the entity that
was going to be conducting the work and their time schedule,
took
place. They had applied and were issued with a wayleave that points
out where the cables are. He met with Maritz who showed
them the
location of the cables on the road which he marked with a blue spray
paint. On the excavation he also worked under the
instruction of
Travis. It was also part of his work to conduct interviews and
organise everybody who needed to do the construction
there as a site
manager. Maritz was occasionally present on site.
[22]
Under cross examination he testified that his payslip was signed by
both the Holmans, Travis as his boss and Tarso as his manager.
According to him Travis was the employer, the boss at UDS Civils.
They got the 2 businesses from their father. Travis was way above
the
other Holman coming to all sites they were working on. He denied that
Travis was a consultant. He said when he signed his contract
it said
nothing about Underground Detection Services. The ad said UDS Civils
CC and the insignia on the motor vehicles was the
same. Their main
office description said Lanseria. He was aware of the other company
Underground Detection Services's formation
in 1999 and was not in its
employ but of USO Civils that started only 10 years later.
[23]
On re-examination he confirmed that his job interview with UDS Civils
was held at Fourways number 95 Leslie Road. Their meetings
were
always held on Monday mornings at Fourways. His salary slip was from
UDS Civils CC with UIF and PAYE deducted.
[24]
The third witness to testify on behalf of the Plaintiff was Karlien
or Colin Jordaan ("Jordaan"), employed at a Dimension
Data
Company called Plessy SA as a line manager being part of a
maintenance team on the long hole cable route. The job entailed
ensuring that services are not affected, so they would drive through
the routes, fixing the breaks as soon as they happen wherever,
to get
the data services running as soon as possible. The main data services
would be for MTN, Vodacom and Cell C. A client reports
directly to
the knock (which is the operational network) who will then contact
them. On site if something is found broken they
would take photos
first before deciding on what should be done to temporarily repair
the break. The turnaround time to repair should
be 4 hours from the
time the fault is reported. Otherwise the Service Level Agreement of
the operational networks and their clients
to whom they provide
services get affected. They in that instance would get a date from
the client for a permanent solution which
cannot be in a month's time
otherwise access to the temporary spice will not be possible since it
may be covered with soil and
not be accessible.
[25]
The temporary fix is important and lasts for a month up to a year.
Its purpose is to get the services running as soon as possible
for
the companies to be able to comply with their customers' Service
Level Agreements. After the services are running they then
start with
a permanent fix of the ducts and the floating of new fibre is then
done. The permanent solution is done as soon as possible
thereafter
otherwise it would be difficult to get access to the temporary splice
as mentioned. Each cable would normally be allocated
to a specific
customer so all the cables have to be fixed straightaway.
[26]
When fixing the cable, the ducts/ sleeves have to be fixed, so
trenches must be opened three metres or more apart from the
breakage
spot, and from each side. A new duct is then inserted and the
sub-ducts connected, followed by tests conducted on the
ducts to
check for any leaks. Each duct has seven sub-ducts with a diameter of
12.10 millilitre which fits in a 50 millilitre duct.
After fixing all
the sub-ducts, the cable is then floated. That is done by using the
air which is pushed in at one side of the
duct to float the cable.
The cables get fixed from joint to joint, which can cover a 4
kilometre area. In the cities they are much
closer because the area
has a lot of clients.
[27]
Plaintiff had 4 cables damaged which were 550 to 600 metres apart.
Plaintiff's ducts were of 72 millilitre diameter, which
is four times
and amounts to 288 millilitre. The whole of each of the cables was
damaged. The length of the Plaintiff's damaged
cables were about 2
180 metres. It cost R15, 26 per metre. According to him the charge is
a set amount that is charged in the industry.
Also there was 12 FP
ducts that were supplied or about 12 meters thereof which is six
meters from the spot on each side. An amount
of R25 or R26.80 plus an
additional amount of R4.50 for labour was charged or that which he
said was acceptable and the price set
out by the supplier. R2.50 was
charged for the recovery of the cable. He reckoned the recovered
cable is not recyclable as it could
not be reused. There was also a
charge of R3.45 he mentioned for handling a 192 meter slack that he
confirmed was reasonable. He
said the two cables were pulled together
and the fibres fused, which process is called splicing. It happens on
both manholes. The
total number of splicing is 576 which is 72 times
4 on each side. The labour charged was R97,75 per splice. 72 splice
protectors
were needed for 72 fibre which was priced at R2.50 each.
Thereafter labelling was done to identify that it is the OF
(Plaintiff's")
Product using 24 labels per joint closure,
charging R285 for labour which is a standard price. Coupling was
charged at R4,06 each
which connects the ducts. The retesting of
quality of the pipes and metro configuration took place at R1 001 per
metre and labour
of R2.15 per metre was charged. He regarded the
contractor costs for infrastructure repairs of an amount of R23
055.77, charged
by the Plaintiff to be reasonable.
[28]
He confirmed that it is possible with a TLB to sever the fibre optic
cables and also that the wayleave that is provided or
furnished
cannot be 100 % accurate on where the underground infrastructure is
located. So a kick off meeting will usually be held
where the owner
will indicate approximately where the route is running and an
instruction issued to open up pilot holes on site
on either side of
the marked location until the actual ducts are found where the work
is to be done or at least ten metres apart.
It was the witness's
submission that if the excavation work was to be carried out on the
pavement not on the road it would not
have been necessary to dig
pilot holes if the proposed construction was not going to affect the
cables or the underground structure.
Since the infrastructure was on
the road if they were not going to work there it would not be
necessary to dig the holes. So if
Maritz did not tell UDS Civils CC
to dig the pigholes there would be nothing wrong. The amount charged
for the whole repairs by
the Plaintiff was conservative being fair
and reasonable.
[29]
This witness was not cross examination, his evidence therefore also
went unchallenged. The Plaintiff's case was thereafter
closed.
[30]
For the Defendant, the first witness to testify was Andrew Rowse
("Rowse"), a civil engineer that was in the employ
of K &
T, the Principal Engineer since January 2011. Rowse, as a senior
engineer had started as a consultant and during that
period promoted
to an associate. He was in K & T's employ until June 2014. His
evidence in chief was that he remembered the
access upgrades, road
construction and storm water upgrade of the intersection near Roeadan
School in 2012. He was responsible
for the design and the
administration of that contract as a principal engineer. He is the
one who wrote the letter of appointment
to the contractor,
Underground Detection Services that was to do the intersection
upgrade, road works and storm water construction
or acces to Rodean.
The letter followed a tender process which Underground Detection
Services came out as the preferred bidder.
He had heard of UDS Civils
CC, they probably have been in one of his tender lists but he could
not remember when and what kind
of contracts they were involved in.
However UDS Civils CC was not involved in the Rodean project but
Underground Detection Services
was the company that was involved.
[31]
His testimony under cross examination was that he worked under a
principal designer as a design engineer and a contract administrator
under a principal engineer. They were in the lowest grade of
oversight, managing site meetings and conducting site inspections
once a week. He is the one who compiled a tender evaluation report in
which he confirmed he would have made recommendations to
the client
as to which tender would be most suitable to their needs. He held a
site meeting on 25 August 2011 with all the tenderers.
He confirmed
that one of them was UDS Civils CC. In the tender evaluation report
no tenderer is referred to as Underground Detection
Services. He also
referred to UDS Civils CC as one of the companies from which a tender
was received. According to the document
the UDS Civils CC tender was
found to be one of the lowest two tenders. The document also refers
to
UDS Civils CC being well known to K & T
and the
contract manager of UDS Civils CC to be Travis Haulman. All this
information is confirmed in his report but then said he
was not sure
if Travis was the sole member of UDS Civils CC.
[32]
The document further refers to the attendance list for the tender
numbered 6481 and list UDS Civils CC, Travis Haulman and
his
particulars including his e-mail address. He confirms that there is
no information in the report about Underground Detection
Services.
It
was put to him that he said Underground Detection Services won the
tender but they do not feature anywhere in the documents especially
on page 5. He confirmed that Underground Detection Services indeed
does not appear anywhere in the report.
[33]
On re-examination he confirmed that in the document none of the
tenderers are defined either as a CC or Pty Ltd or have their
registration numbers detailed, which is also applicable to UDS
Civils. The tender evaluation report is dated 11 September 2011
and
the letter of appointment to UDS Civils followed the report and was
dated October 2011. He confirmed that the letter says that
UDS Civils
has been awarded the tender whilst in his evidence in chief he said
it was awarded to Underground Detection Services.
He agreed to a
suggestion by Counsel that it may be that the UDS Civils is the
colloquial for Underground Detection Services.
He also said that
notwithstanding which company is referred to, he predominantly dealt
with Travis.
He said he was not sure which company Travis
belonged to.
[34]
He confirmed that on the company search document the company searched
is USO Civils and its registered postal address is Postnet
Suit 321
Fourways North, 2086 and the appointment letter was sent to the same
address at Postnet and he agreed that the address
to which the letter
was sent corresponds 100% with the registered postal address of USD
Civils. The letter of appointment was sent
to a Postnet suite in
Fourways.
[35]
Travis Holman, the owner of UDS Civils CC (Pty) was the next witness
to testify. He told the court that he had converted into
a (Pty) Ltd
since July 2014. Prior he was the sole member of the CC since July
2011 and now the sole director. He was familiar
with Underground
Detection Services. It was owned by his brother from 2005 until 2012,
and he has been in their employ until 2012
as a consultant
construction manager for certain projects.
He received a salary
paid to him by EFT. He recalls the Rodean School project that took
place during May 2012. He was basically
part of it from start to
finish as a project manager making sure that it runs smoothly, work
done properly and of good quality,
checking suppliers and that the
construction runs smoothly. He reported to his brother, Tarso Holman
who was his employer boss.
[36]
He knew Veon Van Niekerk,
he was a site manager on the project
who made sure that things went smoothly on site as he was located
there. He worked for Underground
Detection Services. He was involved
in Van Niekerk's employment. He was there to ascertain if Van Niekerk
could do the work and
had the correct knowledge for the work to be
done. He oversaw his contract and had to make a commitment to employ
Mr Van Niekerk
on the basis that he could do the work correctly.
[37]
He was referred to a tax invoice which he identified as from
Underground Detection Services trading as UDS Civils CC addressed
to
K & F for contract work 6481. He denied that the banking details
are for UDS Civils CC. He confirmed that a sticker on the
vehicle and
TLB that was shown on the photo taken on site was a UDS Civils'
sticker and the identification card from the vehicle
that was
purchased. Similarly that UDS Civils was the owner of the vehicle and
the TLB. He said therefore he was the owner of the
vehicle depicted
in the photos as the owner of the Company that is UDS Civils.
[38]
Under cross examination he reiterated that he was employed by his
brother from 2005 to 2012. His brother was the only member
of the CC.
He does not know however where his brother carried his business for
the last 7 years. He worked with the brother
as an administrator
in the office
either as nominee. He was not sure who issued an
invoice from an entity Underground Detection Services trading as UDS
Civils to
K & T. It might have been an administrator whose name
he is not sure of. He is not sure who carries on business at the
address
shown on the invoice, which is 95 Lesley Avenue Fourways.
When he was told that it is his invoice that he discovered as the
Defendant,
his response was that he moved offices in 2013 and he was
not sure who carried on business thereafter. He was told that the
invoice
is dated 2012 before the move, he was then asked again who
carried on business at that address. He said Underground Detection
Services
carried on business from there at Fourways. (despite his
previous answer that he did not know where the business of
Underground
Detective Services was carried out.) He said he knew that
Underground Detection Services worked from Fourways but did not know
where they went to do business.
[39]
He was told the last invoice like that was sent on 1 September 2012
and after that they have UDS Civils CC and no more Underground
Detection Services trading as UDS Civils. He was asked why it was so.
He said he is not sure what happened to the words trading
as UDS
Civils anymore. He did not do or check any invoices. It could have
been an administrator problem. He denied fabricating
the invoices for
Underground from 1 September 2012 after the incident that gave rise
to this claim. He accepted that the incident
happened in May 2012 and
the cheques were postdated.
[40]
He confirmed that he was in court all the time the other witness were
testifying on the incident. It was put to him that according
to the
previous witness the tender was awarded to UDS Civils CC which
converted to Pty Ltd and Underground is still CC. He was
told that
according to the report his company was one of those that attended
the tender meeting. He denied that the cell number
captured on the
report on the attendees was his and said he has not changed his
number. He confirmed the email address to be his.
He denied that the
signature on the report against UDS Civils was his. He also denied
that he attended the site meeting. He however
admitted to have spoken
with someone from K & T regarding the tender evaluation. He said
he thinks the company that was liquidated
was Underground Detection
Services. Indeed Underground was liquidated in 2012 as a CC. He still
alleged to have been employed by
UDS Civils until 2012 and to have
left before the issue of liquidation started. He was not sure if
Underground Detection Services
carried on with the business after
that. UDS Civils leased its infrastructure to Underground Services.
They had a contractual relationship
that is an oral rental agreement
with UDS Civils CC letting its equipment on a month to month
agreement to Underground. He confirmed
that the TLB that was found in
the yard belonged to the Defendant.
ANALYSIS
OF THE EVIDENCE
[41]
The Defendant did not only did not proceed with the Special Plea
(alleging that a contract was concluded between the Plaintiff
and
Underground Detection Services) but it clarified through the
testimony of Travis Holman, the sole director of the Defendant
that
the contract it was referring to in the Plea was an oral rental
agreement between itself and Underground Detection Services
CC for
the rental of infrastructure.
[42]
It is clear from the evidence especially that of Maritz, the
Plaintiff's witness that the entity that was involved is the
Defendant, UDS Civils. Maritz's uncontested evidence is collaborated
by that of the Defendant's erstwhile employee Veon Van Niekerk
whose
evidence was also not challenged that he worked for the Defendant at
the time. The two witnesses confirm that they attended
a kick- off
meeting prior or at the beginning of the project, Veon in his
capacity as the site manager on behalf of the Defendant.
It is also
backed by the report that was completed and signed by Van Niekerk on
behalf of the contractor "UDS Civils".
Maritz's further
testimony that the vehicle on site and the BLT used for excavation
were that of UDS Civils bearing stickers and
insignia of the
Defendant and registered in UDS Civils's name was also not refuted
but instead confirmed by Travis.
[43]
Van Niekerk's allegation that he was employed by the Defendant was
not refuted by the Defendant. He articulated his stance
clearly on
who he served or his boss was, the location of their offices, which
are the Defendant's registered office in Fourways,
the unchanged
personal details, the payment of his salary by the Defendant and his
involvement in the project under the instruction
of Travis Holman. He
also indicated that their meetings were also held at the;r offices at
Fourways. It was not suggested or put
to him that, that was not true
or that Travis will testify and deny that Van Niekerk was in UDS
Civils CC employ employ or deny
that their registered offices were in
Fourways were they carried on their business. Van Niekerk was
actually not challenged on
any of his entire testimony except to be
quizzed on the possibility of the Defendant's name being used as an
abbreviation of Underground
Detection Services. His evidence stood
uncontested with Travis confirming that he actually did employ him.
[44]
Maritz pointed out the presence of the equipment and motor vehicles
on site that had an insignia of the Defendant which indicates
that
they belong to the Defendant. The information was corroborated by Van
Niekerk and the Defendant's sole director, Travis Holman,
who
confirmed that the equipment used indeed belonged to the Defendant,
even though he explained that fact away by alleging that
there was an
oral rental agreement in terms of which the equipment was hired out
to Underground Detection Services, the company
WHICH . It alleges was
the one contracted. Van Niekerk confirmed that he was driving a truck
that belong to his employer, the Defendant.
The driver of the TLB
truck and the supervisor on site all confirmed to Maritz that they
worked for the Defendant.
[45]
Both witnesses' evidence, was consistent, uncontradictory, and
overwhelmingly against the Defendant. Its reliable nature
unquestioned.
The Plaintiff's witnesses proved on a balance of
probabilities that the Defendant was the entity whose employees
damaged its infrastructure.
So at the beginning of the Defendant's
case the Plaintiff had discharged the onus upon it, therefore there
was a prima facie case
that the Defendant had a duty to rebut.
[46]
The evidence by the Defendant's witnesses on the converse
substantiated the fact that the Defendant was the entity involved
notwithstanding their denial in the Plea. Rowse, The author of the
tender evaluation report, in his evidence in chief denied the
involvement of UDS Civils and could not recall working with Travis.
However, his report indicated UDS Civils as one of the tenderers
mentioned all over the document. A fact that he could deny. Travis,
the sole member of UDS Civils is identified in the document
as the
contract manager. His attendance of the meeting for the briefing of
tenderers held on site on 25 August 2011 is also noted.
The list of
the tenderers annexed to the report include UDS Civils and Travis'
particulars are cited as the details of the designated
person at UDS
Civils. His recommendations, as it was pointed out to him during his
cross examination are for UDS Civils to be awarded
the tender.
Nowhere is the name of Underground Detection Services mentioned in
the report or letter awarding the tender. A fact
that Rowse could not
explain, when he was confronted with that fact during cross
examination.
[47]
Now looking at all the supporting documents and the evidence of Rowse
in all probability the tender was awarded to UDS Civils
CC, the
Defendant. Under cross examination Rowse's evidence was that the
Defendant was actually well known to K & T, his employer
and to
him in particular as he predominantly worked with Travis. A
turnaround from his initial assertion in his evidence in chief
that
he only have heard of UDS Civils CC, probably they being in one of
his tender lists but he could not remember when and what
kind of
contracts they were involved in. Overall he was an impressive witness
and his evidence had to be considered with some apprehension.
He was
contradicted by the documents he tried to rely on to strengthen the
allegations he made to rebut the Plaintiff's evidence.
An exercise at
which he was dismally unsuccessful.
[48]
Travis was from the beginning compromised as he was in court during
the testimony of the Defendant's witness. He therefore
had struggled
to navigate through his evidence which he tried to tailor make so
that it should not contrast with his witness. Regrettably
the result
was that he was such an uninspiring witness. He even contradicted
himself, contesting evidence that he had in chief
submitted to the
court. Some of the contentions were unnecessary and unexplainable. It
is disconcerting that he would deny his
own business' registered
address where he carried on business and suggest not to know where
Underground Detection Services conducted
its business when he has
claimed to have been in their employ for as long as they were in
business since 2005 to 2012. In all probability
the only reason he
would do that would be to try to dissuade the court from knowing the
true facts.
[49]
Furthermore, even though Travis would like the court to believe that
Underground Detection Services was involved and he was
only acting on
behalf of his brother, Taso, the latter's name was negligibly
mentioned in the defendant's whole evidence. The witness
Rowse only
interacted with him. He too, did not mention any role that was played
by Taso in the whole contract or incident. It
is therefore unlikely
that Taso would not be involved in the procurement of the tender and
the delivery on the tender. Travis also
could not explain away the
UDS Civils employees that were on site and his explanation of the
equipment being rented to Underground
Detection Services
unconvincing. The operators of the TLB and the presence of Maritz who
were from UDS Civils CC, Travis' attendance
at the briefing meeting
as UDS Civils representative, the letter awarding the tender to UDS
Civils, the reference in Rowse's report
to UDS Civils, the invoice
sent to K & T even after the liquidation of Underground Detection
Services, point in all probability
overpoweringly to UDS Civils to
have been the entity that was awarded the tender and whose employees
were carrying on the excavating
operations on site and who damaged
the Plaintiff's infrastructure. No evidence was tendered that could
prove the contrary.
[50]
Even though the Defendant's Counsel argued that Underground Detection
Services traded as UDS Civils as indicated in the invoice
issued
prior to the latter's liquidation, that was not the evidence that was
led by the Defendant's witnesses. Counsel would also
have liked the
court to believe that UDS Civils was just being mentioned as an
abbreviation for Underground Detection Services
or as insignia not
because it was trading as the other Company. Whilst Travis said the
explanation for the insignia on the equipment
and vehicles is because
the Defendant, UDS Civils let it to Underground Detection Services.
Now what is the truth from all these
propositions.
[51]
The Defendant therefore failed to discharge the duty to rebut the
Prima facie evidence of the Plaintiff proving the liability
of the
Defendant.
QUANTUM
[52]
On the quantification of the damages, Plaintiff led the evidence of
Mr Colin Jordaan whose expertise or evidence was not challenged.
Mr
Jordaan confirmed the damages as suffered by the Plaintiff, also each
and every cost charged for each of the items constituting
the damages
and the reasonableness of the costs. Mr Jordaan was of much
assistance to the court. He thoroughly and simplistically
dealt with
the costs and the damages explaining the justification of the repairs
and the material required. The plaintiff made
a good case for the
amount of the damages sought to be granted.
[53]
Under the circumstances I make the following order
[53.1]
The Plaintiff's claim is upheld with costs.
[53.2]
The Defendant is ordered to pay:
[53.1.1]
an amount of R165 785.37 (One Hundred and Sixty Five Thousand Seven
Hundred and Eighty Five Rand Thirty Seven Cents);
[53.1.2]
interest on the aforesaid amount at the rate of 15.5% per annum, from
date of service of Summons to and including date
of payment thereof;
[53.1.3]
Costs of suit.
________________________
NVKHUMALO
J
JUDGE
OF THE HIGH COURT
GAUTENG
DIVISION: PRETORIA
For
the
Applicant:
ADV A J SCHOEMAN
Instructed
by:
Roestoff & Kruse Attorneys
Tel:
012 460-0987
Ref:
F Kruse/jg/KD0164
For
the
Respondent:
DE COETSEE
Instructed
by
Jacues Van Greunen Attorneys