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[2015] ZAKZDHC 62
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Coombe N.O v Premier of the Province of KwaZulu Natal (2144/2000) [2015] ZAKZDHC 62 (31 July 2015)
IN
THE HIGH COURT OF SOUTH AFRICA,
KWAZULU-NATAL
LOCAL DIVISION, DURBAN
CASE
NO: 2144/2000
DATE:
31 JULY 2015
In
the matter between:
COLIN
ARNOLD VICTOR COOMBE
N.O
.....................................................................
PLAINTIFF
And
THE
PREMIER OF THE PROVINCE
OF
KWAZUU-NATAL
......................................................................................................
DEFENDANT
ORDER
Delivered
on: 31 July 2015
The
defendant’s first and second special pleas are dismissed.
JUDGMENT
SISHI
J
Introduction
[1]
The plaintiff instituted an action against the defendant for the
payment of R122 283, 54, being additional moneys due to
the
defendant in terms of the contract; R92 237,40 being penalties
erroneously charged by the defendant in terms of the contract
and
R19 829, 16, being retention money retained by the defendant in
terms of the contract.
[2]
The plaintiff in this matter sues the defendant in his representative
capacity as an executor of the deceased estate, Adari
Krishna Appanna
who died on 9 July 1999. The plaintiff is the nominee of the First
National Asset Management and Trust Company
(Pty) Ltd, the Executor
testamentary of the late Adari Krishna Appanna.
[3]
The defendant is the Premier of the Province of KwaZulu Natal.
Factual
background
[4]
The plaintiff’s cause of action is based on the contract
entered into by the relevant parties on 12 December 1994, which
was
concluded between the aforesaid Adari Krishna Appanna “The
Contractor”, then, the sole proprietor of a construction
business conducted by him under the style of “The three
builders” and the defendant, duly represented by its authorised
signatory.
[5]
In terms of the aforesaid building contract, the contractor undertook
to perform certain building works for the defendant at
Astra Primary
School in Chatsworth, Durban.
[6]
It was the term of the said contract that the contractor would
complete the building works by 11 December 1995.
[7]
It was a further term of the contract that should the building works
be delayed due to any of a number of defined events or
factors, a
contractor would be entitled to apply in writing within twenty one
days of the cause of delay arising, to the defendant’s
authorised representative, for an extension of the contract period,
stating the cause of delay and the period of extention applied
for.
[8]
The aforesaid application was to be considered and acceded to wholly
or in part or refused by the defendant’s authorised
representative.
[9]
It was a tacit, alternatively, implied term of the contract that the
decision referred to in the paragraph above would be made
within a
reasonable time of one month.
[10]
During the course of construction, the Contractor encountered several
of the aforesaid defined events or factors causing delays
to the
carrying out of the building works and, acted in accordance with the
procedure referred to in paragraph 8 above.
[11]
The plaintiff has set out in its plea, in the particulars of claim a
number of such applications in respect of which it is
alleged that
the defendant did not respond to within a reasonable time, the
plaintiff incurred certain penalties in terms of the
contract.
[12]
It is at this stage not necessary to deal with the merits of this
application as parties agreed that the Court is required
to
adjudicate upon the defendant’s special pleas first.
The
issues
[13]
The issue in this matter is whether or not the defendant’s two
special pleas should be upheld.
[14]
In order for these special pleas to be understood in their proper
perspective, it is necessary to set out verbatim both the
special
pleas and the plaintiff’s replications thereto.
Defendant’s
first special plea
[15]
The defendant’s first special plea is set out as follows in the
pleading:
‘
(1)
The plaintiff relies upon a contract comprising,
inter
alia
, annexure “B: to the
plaintiff’s Particulars of Claim, in support of the plaintiff’s
causes of action and claims
as against the defendant.
(2)
Clause 27 of the contract provides as follows:
“
(1)
Should any dispute or difference arise between the
representative/agent or the Director-General and the contractor as to
any
matter relating to the meaning of or arising out of the contract,
the Director-General shall have the option of dealing with the
claim
directly to determine such dispute or difference by a written
decision given to the contractor. The said decision shall
be
final and binding on the parties unless the contractor within 21 days
of the receipt thereof by written notice to the Director-General
rejects the same.
(2)
Should the contractor not accept the decision of the Director-General
the contractor shall be entitled to have recourse to the
courts of
law of the Republic of South Africa provided that any action to be
instituted under this clause shall be commenced and
process served
within 6 months of the date of the aforesaid decision”.
(3)
The action relates to disputes and/or differences between the
Director-General (represented by the defendant) and the contractor
(represented by the plaintiff).
(4)
Neither the plaintiff nor the contractor referred the said disputes
and/or differences, prior to the institution of the action,
for a
decision to the Director-General in accordance with the provisions of
Clause 27 of the contract.
(5)
The Director-General has accordingly not been afforded the option of
dealing with the plaintiff’s claims.
(6)
The action is accordingly premature.
(7)
Wherefore, the defendant prays for judgment in his favour and for an
order dismissing the plaintiff’s claim with costs.”’
Plaintiff’s
replication to defendant’s first special plea
[16]
The plaintiff’s replication to the defendant’s first
special plea is set out as follows:
16.1
The contract does not impose on the contractor a duty to refer the
matter to the Director-General for his
decision;
16.2
Inasmuch as the contract confers an option on the Director-General to
deal with the claims and the defendant
alleges that no such option
was exercised by the Director-General, and
16.3
Inasmuch as the contract does not prescribe that the
Director-General’s decision determining the dispute
or
difference is a
sine qua non
of the plaintiff’s right to sue.
16.4
The first special plea is bad in law and falls to be dismissed.
Submissions
on defendant’s first special plea
[17]
Counsel for the defendant submitted that the first special plea
should be upheld in that the plaintiff failed to comply with
clause
27 of the contract. He submitted that the director general was
not given an option to deal with the issues.
He submitted that
it was imperative for the plaintiff to first ask the Director-General
to deal with the request for extensions.
Furthermore, he
submitted that the application letters dealing with the delay did not
notify the defendant of the causes of the
delay. He submitted
that the summons was issued on 15 March 2000 without the
Director-General having been given opportunity
to deal with the
issues.
[18]
He then submitted that the first special plea should be upheld.
[19]
Counsel for the plaintiff submitted that the first defendant’s
plea was merely a dilatory plea.
[20]
Counsel further submitted that in terms of clause 27 of the contract,
it does not mean that if the Director-General has not
considered the
matter and made a decision, then the defendant’s special plea
should be upheld.
[21]
He submitted that the non-referral of the dispute to the
Director-General by either party is no bar to the plaintiff’s
right to sue the defendant.
[22]
He further submitted that there was no contractual obligation on the
part of the plaintiff to have referred the matter to the
Director-General for a decision.
[23]
He submitted that the interpretation accorded by the defendant to
clause 27 of the contract is misplaced.
[24]
He submitted that the defendant does not say when the dispute arose
and that it is incumbent upon the defendant to place facts
before the
Court to enable the Court to make a decision on the special plea. The
defendant has failed to do so.
[25]
He then submitted that the defendant’s first special plea is
bad in law and falls to be dismissed.
[26]
I agree with the plaintiff’s submission that clause 27 of the
contract does not impose on the contractor a duty to refer
the matter
to the Director-General for his decision.
[27]
The fact that neither party has referred the dispute to the
Director-General for decision is not necessarily a bar to the
plaintiff to institute the action against the defendant.
[28]
There is nothing in the provisions of clause 27 of the contract which
requires that the Director-General should first be afforded
an
opportunity of dealing with the plaintiff’s claim before
summons is issued.
[29]
Accordingly, the submission by Counsel for the defendant that the
action is premature has no substance.
[30]
In the result, the defendant’s first special plea is dismissed.
Defendant’s
second special plea
[31]
The defendant’s second special plea reads as follows:
‘
(1)The
plaintiff’s claims are regulated by the provisions of the
Prescription Act No.68 of 1969 (“the Act”).
(2)
Summons in the action was served on the
defendant at 15h45 on 15 March 2000.
(3)
Those elements, alternatively aspects of
the plaintiff’s claims which accrued and became due more than
three years prior to
15 March 2000, that is prior to 16 March 1997,
have become prescribed in terms of Section 11 of the Act and are
accordingly unenforceable
as against the plaintiff.
(4)
Wherefore the defendant prays for judgment
in his favour and for an order dismissing, with costs, those
elements, alternatively
aspects of the plaintiff’s claims which
became due more than three years prior to 15 March 2000, that is
prior to 16 March
1997.’
Plaintiff’s
replication to defendant’s second special plea
[32]
The plaintiff’s replication is set out as follows in the
pleadings:
“
(1)
In relation to the defendant’s second special plea the
plaintiff denying all the allegations replicates as follows in
the
alternative:
(a)
The contractor’s claims which form the subject matter of this
action, insofar as they are debts within the meaning of
Act 68 of
1969, were not due until the representative/agent of the defendant
supplied the contractor with a copy of the final account
as
prescribed by clause 23(4) of the contract.
(b)
Such final account was not supplied to the contractor prior to 16
March 1997
(2)
Wherefore, the plaintiff prays that the defendant’s second
special plea be dismissed with costs.”
Submissions
on second special plea
[33]
The defendant submitted that in respect of the claim for R122 283.54,
the plaintiff failed to comply with the provisions
of Section 20,
clause 24 of the contract in that letters by the plaintiff requesting
the extension of time did not indicate the
causes for the delay.
[34]
He then referred to the letters contained in pages 5 and 6 of the
defendant’s bundle dated 30 November 1995 and 7 December
1995.
The first letter referred to the plaintiff’s request for an
extension of three months dated 24 November 1995
and the defendant’s
response is that they are unable to support the application due to
lack of full motivation. They
further stated that it is
necessary for the plaintiff to show where the delay has occurred, to
what extent it affected the current
building program, which traits
were effected and for them to quantify the effect of the working
date.
[35]
In the second letter, they confirmed the extended completion date to
be 29 January 1996 and pointed out that a further fourty
four working
days which was not presented to the delay committee required an
additional motivation before they can consider it.
[36]
Despite the many applications referred to in the plaintiff’s
particulars of claim requesting an extention of time, only
two
letters have been furnished by the defendant dealing with lack of
motivation for the extention of time.
[37]
Counsel for the defendant then submitted that the delay started in
February 1995, the summons was issued on 15 March 2000 for
the debt
that arose in 1995 as at that time the debt had prescribed. He
submitted that it is common cause that the plaintiff
died on 9 July
1999 which would have delayed the running of prescription in terms of
section 13(1)(h)
of the
Prescription Act 68 of 1969
. He
then submitted that by then his claim had already prescribed by 12
June 1996.
[38]
He then submitted that the same applies to the claim of R92 237,
40.
[39]
He then submitted that the elements or aspects of the plaintiff’s
claim which accrued and became due more than three
years prior to 15
March 2000 that is prior to 16 March 1997 have become prescribed in
terms of
section 11
of the
Prescription Act and
accordingly
unenforceable against the defendant.
[40]
Counsel for the plaintiff submitted that as the plaintiff died on 9
July 1999, the running of prescription should have then
delayed by
one year in terms of
section 13
of the
Prescription Act.
[41
]
He submitted that in the defendant’s plea, it is stated that
the claims should have been brought prior to 16 March 1997.
But, by virtue of the provisions of the
Prescription Act, the
correct
date should be 16 March 1996.
[42]
He further submitted that it is incumbent upon the defendant to say
which claims have prescribed.
[43]
According to the plaintiff, the final delivery certificate was issued
on the day of 11 November 1997, the defendant has, however,
pleaded
that the final delivery certificate was issued on 12 November 1997.
[44]
Clause 21.1 of the contract provides that the contractor shall
deliver to the representatives/agent the works and premises
when
completed in a clean and perfect state internally and externally,
free for occupation and complete in every particular.
When the
works are, in the opinion of the representative/agent, so completed
the representative/agent will issue the first delivery
certificate.
Clause 21.2 provides that the final delivery certificate will be
issued three months after the date of the first delivery
certificate
provided that if defects referred to in 22.1 hereof, have occurred
during this period which are rectified after such
period of three
months, the final delivery certificate will be issued after the
rectification of all such defects.
[45]
Counsel further submitted that the work was completed on 12 November
1997.
[46]
Clause 23.4 of the contract provides:
“
After
the completion of the works final account shall be prepared by the
representatives/agent and all relevant documents, including
documents
relating to the accounts of nominated subcontractors, shall be
furnished to the representatives/agent by the contractor
and he shall
provide all assistance necessary for the compilation of the following
account. The contractor shall be supplied
with the copy of the
final account which shall be returned to the Director-General dully
signed by the contractor. Should
the contractor within three
months from the date of issue of the final account fail to object to
the contents the final account,
giving full details of such
objection, or fail to sign the final account, he shall be deemed to
be accepted the final account …”
[47]
Counsel submitted correctly in my view that the provisions of this
clause have not been complied with, the contractor had not
been
furnished with the final account which he had to sign and return to
the Director-General. He also submitted that until
that
happened, there is no final account.
[48]
It is trite that the party who raises prescription, must allege and
prove the date of inception of the period of prescription.
See
Gerike
v Sack
[1]
,
as
a general rule, prescription begins to run as soon as the debt is due
unless the debt is as a result of continuing wrong, see
Barnet
and others v Minister of Land Affairs
[2]
.
This
means that a debt must be immediately claimable by the creditor in
legal proceedings and that the debtor must be under an obligation
to
perform, see
Benson
and another v Walters and others
[3]
.
[49]
Counsel for the plaintiff submitted correctly that the defendant has
not pleaded the date of the inception of the period of
prescription.
He then submitted that until the final account has been prepared, the
debt cannot be due.
[50]
The final delivery certificate was given on 12 November 1997 and
before that no prescription can run. Until a final account
has been
presented, no question of prescription arises.
Analysis
and assessment of the argument
[51]
It is clear from page 1 bundle 2, in a letter dated 14 May 1997 that
the defendant as at that date, the department was still
making
payment to the plaintiff. This is letter from Stauch Vorster
Architects confirming submission to the Department of
Works, Durban,
their recommendations for the payment No.22 in the sum of R29 792,
58, which payment includes the amount of
R3 658,74 for vat.
The letter attaches a copy of the contract payment voucher and
Quantity Surveyor’s recommendations.
[52]
It is also evident from the payment certificate number 22 on page 3
of the plaintiff’s bundle 2 and page 6 of plaintiff’s
bundle 2 that is the schedule of adjustments in terms of the contract
price adjustment formular prepared by Norman and Single Quantity
Surveyors that the contract date completion was extended to the 3
June 1996.
[53]
On pages 7, 8 and 9 of the plaintiff’s bundle 2 is a letter
dated 24 June 1998 dealing with a list tabulating the dates
when
drawings and blocks were handed over. Item No.54 thereof states
“boundary fencing checked and approved on 28 May
1997”.
[54]
On page 10 of the plaintiff’s bundle 2, is the letter dated 17
January 1997, from Stauch Vorster Architects addressed
to 3 builders,
dealing with the first delivery certificate, for the release of a
guarantee. This letter reads as follows:
“
Dear
Sir,
On
behalf of the department of Works, we confirm having completed first
delivery of the above service on 7 December 1996.
For
your records, we enclose a copy of each of the four certificates of
first delivery confirming the days on which practical completion
was
attained for the various portions of the works”.
The
letter is signed by Paul Winters, the project architect. Copies
of these four certificates of delivery are attached to
this letter
from pages 11 – 14 of plaintiff’s second bundle.
[55]
Of importance in all these certificates of first delivery is the date
of 17 January 1997, and the aspects dealing with delays.
[56]
All four certificates of first delivery are dated 17 January 1997.
In the section with delays, the following is recorded
delays:
“
It
is confirmed that all applications for extention of the contract, in
terms of this certificate have been submitted to the principal
agent
for decision”
[57]
This is a clear indication that as at 17 January 1997, decisions had
not yet been made on all applications for extention for
the contract
period in terms of the certificate referred to above.
[58]
Clause 20.4 of the contract deals with delays and provides as
follows:
“
If
the works are delayed by variations, ommitions, additions,
subsitutions, or organised work stoppages by any workman not due to
any action on the part of the contractor, exceptionally inclement
weather, any substantial increase in provisional quantities,
or any
other cause beyond the contractor’s contributing delay caused
by the Director General, or his representative/agent
referred to in
clause 25 hereof, then the contractor shall be entitled to apply in
writing within 21 days of the cause of delay
arising to the director
general through the representatives/agent for extention of the
contract period stating the cause of the
delay and period of
extention applied for”.
[59]
It has been indicated above that the director general has extended
the completion contract period to 3 June 1996. No
document has
been produced by the defendant indicating that those extensions had
not been granted.
[60]
In the circumstances, those claims cannot be held to have prescribed.
[61]
Section 12(1)
of the
Prescription Act 68 of 1969
provides that
prescription shall commence to run as soon as the debt is due.
[62]
In the
Master
v I L Back and Co. Ltd and others
[4]
,
the following was said:
‘
The
words “debt is due”, in the section must be given their
ordinary meaning. It seems clear that this means that
there
must be a liquidated money obligation presently claimable by the
creditor for which an action could presently be brought
against the
debtor. Stated another way, the debt must be won in respect of
which the debtor is under an obligation to pay
immediately’.
This
case was cited with approval in
Benson
and another v Walters and others
[5]
.
[63]
I have already indicated above that no final account had been
presented in this matter as required by the provisions of the
contract, furthermore, as at 14 May 1997, the department was still
making payments to the plaintiff. It is also clear from
the
documents referred to above that the contract was extended to 3 June
1996.
[64]
Considering all the above, I am satisfied that both the first and
second special pleas have no merit in this matter. They fall
to be
dismissed.
Order
[65]
The defendant’s first and second special pleas are dismissed.
SISHI
J
APPEARANCES
Date
of Hearing : 21 April 2015
Date
of Judgment : 31 July 2015
Plaintiff’s
Counsel : S.M. ALBERTS
Instructed
by : CHAPMAN DYER INC
Plaintiff’s
Attorneys
10
th
Floor
300
Smith Street
DURBAN
richardlg@cdi.co.za
;
colin@cdi.co.za
Ref:
PEP/SS 10A 4748/00
Defendant’s
Counsel : B. J. BUTHELEZI
Instructed
by : THE STATE ATTORNEY (KZN)
3
rd
Floor, Sangro House
417
Smith Street
DURBAN
Ref:
Mr Chamber/tp 389/000230/2000/C/P25
[1]
1978
(2) All SA 111 (A)
[2]
2007
(6) SA 313
(SCA)
[3]
1984
(1) SA 73(A)
at 82 B-G.
[4]
1983
(1) SA 986
A at 1004.
[5]
Supra
at 82 C-D.