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[2015] ZAFSHC 133
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Mangaung Metropolitan Municipality v Maluti Plant Hire CC (4370/2014) [2015] ZAFSHC 133 (2 July 2015)
FREE
STATE HIGH COURT, BLOEMFONTEIN
REPUBLIC
OF SOUTH AFRICA
Case No.: 4370 /2014
In
the matter:
MANGAUNG
METROPOLITAN MUNICIPALITY
Applicant
and
MALUTI
PLANT HIRE
CC
Respondent
JUDGMENT
:
MIA
AJ
HEARD ON
:
14
MAY 2015
DELIVERED
ON
:
2
JULY 2015
MIA AJ:
[1] The applicant launched this
application wherein it seeks an order that the respondent finalise
repairs to and deliver certain
equipment and machinery upon payment
of certain monies by the applicant. The respondent opposed the
application and filed a counter
application in response to the
applicant’s application for delivery of the equipment. The
counter application requests similar
relief as requested by the
applicant save for the leave to sue by way of summons to recover
storage costs for the equipment which
is the subject of this
application. It is necessary to furnish a brief background of the
facts which gave rise to this application.
BACKGROUND
[2] During June 2012, the applicant
required repairs to be effected on a Caterpillar D7R Bulldozer-Fleet
1411. The applicant requested
a quotation from three service
providers as required by its supply chain policy. The respondent was
the third service provider
requested to provide a quotation. The
respondent removed the bulldozer from the applicant’s premises
without obtaining permission
from the applicant’s fleet
management services. The purpose of the removal, as advised by the
respondent’s Mr Drake
Ahadji ( Mr Ahadji) was to clean the
bulldozer as it was too dirty to determine the damage to the
undercarriage. The respondent
furnished the applicant with an
invoice for transporting the bulldozer and cleaning it. It also
furnished a quote to effect repairs
on the bulldozer. The applicant
upon receipt hereof, took a decision to have the work done by Barlows
Equipment (Barlows). When
a representative of Barlows went to the
respondent to collect the bulldozer from the respondent’s
premises, Mr Ahadji refused
to release same until payment was made on
the invoice for cleaning and transporting the bulldozer.
[3] The applicant’s
representative recommended payment to the respondent on the
particular invoice to enable Barlows to collect
the bulldozer and
commence the repair required. The applicant’s representative
communicated this decision to the respondent
to ensure the release of
the bulldozer. The respondent’s representative refused to
release the bulldozer and indicated that
it intended to hold onto the
property until it received payment on the invoice in relation to the
bulldozer as well as other invoices
in relation to repairs on other
items of equipment, which amounts included rentals for equipment and
storage costs. The request
in relation to the bulldozer was issued in
2012. The respondent’s invoices attached to the papers are
dated 2014, approximately
two years later after the bulldozer was
collected from the applicant’s premises.
[4] The applicant refused to pay for
rentals and this dispute forms the subject of a summons which has
been issued by the respondent.
The applicant indicated
that it needed to inspect the equipment to ascertain whether the
repairs had been effected
before payment could be authorised. The
applicant indicated it only became apparent in 2014 whilst consulting
on the claim for
collection of rentals that the equipment which is
the subject of this application was not included in the instruction
in relation
to the rentals. The parties corresponded with each other
in relation to this matter and the applicant suggested certain
proposals
to resolve the matter in February 2014.
[5] The applicant did not make
payment on invoices issued as it sought to inspect the work prior to
payment. There appears to have
been a misunderstanding between the
applicant and the respondent regarding the discussions that continued
with regard to the other
equipment. The applicant believed the
invoices included the bulldozer which is the subject of this
application because the respondent
had made the release of the
machines subject to the payment of rentals. The respondent did not.
The applicant upon discovering
this misunderstanding through
its attorney issued a letter tendering payment and requesting
confirmation that the machinery would
be released. This was met
with a threat to issue summons in respect of the invoice. The
applicant still tenders payment of
the invoices upon delivery of the
machinery.
[6] The respondent filed an opposing
affidavit herein and counter application. The relief requested by the
respondent in the counter
application is for payment of the amounts
which are tendered by the applicant in any event. On the respondents
version the dispute
which prevented the parties from finding each
other in this matter is the invoice related to storage costs. The
applicant sought
to settle the matter on the basis that a written
agreement be drafted which reflected their agreement and that the
issue of settlement
of storage costs be addressed by way of an
action. A proposed settlement was sent to the applicant by the
respondent. No further
progress was made in this matter as the
issue of the storage costs still clouded the waters. The matter has
now found its
way before this court on the basis that each party
requests substantially the same relief with neither party wanting to
take the
step necessary to realise their intention.
[7] On the basis of the undisputed
facts before me the applicant is entitled to recover its equipment
upon payment of the amounts
due to the respondent. The applicant did
not dispute any of the invoices. The respondent is entitled to
payment for services rendered.
The issue of consequential damages
raised by the applicant as well as the issue of recovering monies for
rental and storage costs
raised by the respondent are matters to be
determined by way of action and this too has been conceded by both
parties.
[8] In view of the above and in order to pull the
parties out of the stalemate they have created it is necessary that
an order be
made directing the course of action of the parties. In
view of the facts above the applicant has been substantially
successful
in its application and it follows that costs should follow
the cause.
ORDER
[9]
In the result the following order is made.
1.
The
counter application is dismissed with costs.
2.
The
respondent is ordered to deliver the five hydraulic cylinders of the
refuse Compaction Truck, the caterpillar D7R Bulldozer
–Fleet
1411 and the Dresser Grader No 4780 to the applicant’s premises
within 14 days from the date of this order.
3.
The
applicant is ordered to pay the amount of R32944.86, R17 328.00 and
R253 194.00 within 20 days from the date of this order.
4.
The
respondent is ordered to pay the costs of this application.
____________
S.
C. MIA, AJ
On behalf of the appellants:
N W Phalatsi
Instructed by:
NW Phalatsi Attorneys
BLOEMFONTEIN
On behalf of the respondents:
Adv P Zietsman SC
Instructed by:
Matsepes Inc
BLOEMFONTEIN