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[2015] ZAGPPHC 324
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Kaleida Project Management Company Ltd v Kalagadi Manganese (Pty) Ltd and Another (56782/13) [2015] ZAGPPHC 324 (11 March 2015)
REPUBLIC
OF SOUTH AFRICA
GAUTENG HIGH
COURT DIVSION, PRETORIA
Case Number:
56782/13
Date: 11 March 2015
In the matter
between:
KALEIDA PROJECT
MANAGEMENT COMPANY
LTD
.......................................................................................................................................................
Applicant
and
KALAGADI
MANGANESE (PTY)
LTD
.................................................................................
1
st
Respondent
MDM
ENGINEERING
..............................................................................................................
2
nd
Respondent
JUDGMENT
MNGQIBISA-THUSI,
J:
[1] The applicant
seeks the following relief:
1.1 that first
respondent pay applicant an amount of R9 216 900.00;
1.2 that first
respondent pays the costs of this application.
[2] The following
facts are common cause:
2.1 On 28 June 2011
first respondent awarded the applicant a tender for the supply,
delivery, installation and commission of a wagon
tippler to be used
at the respondent's Kalagadi Mines Sinter Plant.
2.2 On 28 June 2011
the first respondent issued the applicant with a letter of award, in
terms of which clause 2.1 provided that
the tender was subject to the
condition that the applicant and the first respondent conclude an
agreement for the execution of
the contract and/or services by 30
July 2011.
2.3 prior to the
conclusion of the agreement being concluded and whilst the applicant
and the first respondent were negotiating
the terms of the proposed
agreement, the applicant commenced with preparing some preliminary
technical drawings relating to the
project.
2.4 On 19 July 2011
the applicant issued invoices to the amount of R9 261 900.00 for work
already done. These invoices were accompanied
by a certificate of
completion prepared by the second respondent who was the first
respondent's project manager with regard to
this project.
[3] It is the
applicant's contention that first respondent is liable to it in the
amount claimed based on the fact that the first
respondent has
acknowledgement of indebtedness made by the first respondent through
various correspondences between the employees
of the applicant and
the first respondent.
[4] The
correspondence relied upon by the applicant as evidencing the first
respondent's acknowledgement of its indebtedness to
the applicant are
the following:
4.1 an e-mail dated
30 August 2011 in which Xolile Kubheka ("Kubheka"), first
respondent's financial administrator, in
responding to a query by
Samantha Reddy ("Reddy") (presumably an employee of the
applicant) about the invoice numbers
and the total amount of the
invoices, indicated that the amount 'scheduled for payment' is R9 216
900.00; and
4.2 an e-mail dated
31 August 2011 from Kubheka to Reddy in response to a query by Reddy
as to when payment of the invoices can
be expected, in which it is
indicated that payment would be made on 6 September 2011.
[5] It is the
applicant's contention that the first respondent's indebtedness is
based on the e-mails referred to above, which were
pursuant to a
partly written, partly oral agreement between the parties,
alternatively that the first respondent owes it the amount
claimed on
the basis of services rendered by the applicant.
[6] The first
respondent denies having acknowledged any indebtedness to the
applicant in the amount claimed. It is the first respondent's
contention that when the applicant undertook to perform the
preliminary work pertaining to the project, the applicant knew that
it was working at the risk of the main agreement being concluded
between the parties. In this regard the first respondent relies
and
did attach to its answering affidavit an e-mail sent by the applicant
to the first respondent, dated 10 August 2011, in which
the applicant
acknowledges that until the negotiations towards the conclusion of
the main agreement, it is working on risk. It
was argued on behalf of
the applicant that the applicant could not rely on e-mails sent by a
junior employee and any undertakings
made by the project manager as
neither had the authority to bind the first respondent particularly
as they were not aware with
the legal terms applying to the agreement
between the applicant and the first respondent. Furthermore, the
applicant indicated
in the same e-mail that it is not comfortable
with the situation and was considering suspending the work it was
doing. It is further
the first respondent's contention that this
court has no jurisdiction to hear the matter in view of clause 20 of
the letter of
award, which provides that in the event of a dispute,
the aggrieved party should refer the dispute to arbitration. It was
further
submitted on behalf of the first respondent that the parties
did not enter into a main agreement, as there were problems with
regard
to the applicant's financial statements.
[7] The following
issues are in dispute:
7.1 whether, when
the applicant undertook the preliminary technical work it was working
at risk;
7.2 whether there is
an acknowledgement of debt by the first respondent.
[8] From the letter
of award, in particular clause 2.1, it is common cause that the
letter of award was subject to a main agreement
being entered into
between the parties. Having regard to the e-mail sent by the
applicant's representative on 10 August 2011 in
which it expresses
its discomfort at continuing with the work whilst negotiations were
not concluded, there is an acknowledgement
by the applicant that it
is working at risk. From this e-mail it can be inferred that the
applicant understood that it would not
be paid unless the condition
precedent as contained in clause 2.1 of the letter of award was
fulfilled, bearing in mind clause
9 of the letter of award which
reads as follows:
"Payment of
invoices will be effected not later than 36 days from end of the
month on which the invoice is accepted. In addition,
all payments
shall be subject to payment terms and conditions of Kalagadi
Manganese."
[9] Therefore, I am
satisfied that the applicant took the risk of rendering services,
which it knew would not be paid unless the
main agreement was
concluded.
[10] With regard to
the alleged acknowledgement of debt, the applicant averred that the
acknowledgement of indebtedness was evidenced
by the two e-mails
referred to in paragraph 4 above in pursuance of a partly written,
partly oral agreement. However, on the evidence
before me I am of the
view that the applicant has not proven that a partly oral agreement
was concluded with the first respondent.
Furthermore, on a perusal of
the e-mails the applicant relies on they do not reflect an
unequivocal or unconditional acknowledgement
of indebtedness. The
fact that the first respondent's project manager has certified that
work has been completed does not impute
on the first respondent an
acknowledgement of indebtedness if one takes into account the terms
and conditions as contained in the
letter of award.
[11] Consequently
the following order is made:
'The application is
dismissed with costs.'
MNGQIBISA-THUSI J
Judge of the Gauteng
High Court Division
Appearances:
For Applicant: Adv H
Groenewald
Instructed by: Van
der Elst Attorneys Inc
For Respondent: Adv
M Sikhakhane
Instructed by:
Edward Nathan Sonnenbergs