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[2014] ZAFSHC 227
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Bentel Associates International (Pty) Ltd v Loch Logan Waterfront (Pty) Ltd and Another (2482/2009) [2014] ZAFSHC 227 (11 December 2014)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE
DIVISION,
BLOEMFONTEIN
Case
No: 2482/2009
In
the matter between:-
BENTEL
ASSOCIATES INTERNATIONAL (PTY) LTD
............................................
Plaintiff
and
LOCH
LOGAN WATERFRONT (PTY) LTD
…....................................................
1
st
Defendant
TRUSTEES
OF THE N GEORGIOU TRUST
…..................................................
2
nd
Defendant
CORAM:
KRUGER, J
HEARD
ON:
3
– 21 NOVEMBER 2014
DELIVERED
ON:
11
DECEMBER 2014
1.
OUTLINE
I
GENERAL:
1.
OUTLINE
2.
THE PARTIES
3.
THE ISSUES
4.
SEPARATION OF ISSUES
5.
INSPECTION IN LOCO
6.
ADMISSIBILITY OF EVIDENCE
7.
DOCUMENTS
8.
LITIGATION HISTORY
9.
KEY DATES
10.
DEFENDANTS’ AMENDMENTS
11.
EVIDENCE
12.
MEETING OF EXPERTS
13.
THE NATURE AND CONTENTS OF THE CONTRACT BETWEEN THE PARTIES
14.
PAYMENT OF FEES : INTERIM FEES OR CASH FLOW BASIS
II
CLAIMS AND COUNTER CLAIM ITEMS
15.
HOW CLAIMS ARE SET OUT
16.
PLAINTIFF’S CLAIMS
17.
LOCUS STANDI
OF THE FIRST DEFENDANT
18.
FIRST DEFENDANT’S COUNTER CLAIM
III
CONCLUSIONS
19.
CONCLUSION ON COUNTER CLAIM
20.
CALCULATION OF PLAINTIFF’S CLAIM
21.
COSTS
22.
RESERVED COSTS
23.
INTEREST
24.
ORDER
2.
THE PARTIES
[1]
The plaintiff is a firm of architects where 70 architects and
architectual technicians work. The first defendant is a
private
company that owns the Loch Logan Waterfront shopping Mall, having
purchased it as a going concern from the second defendant
on 20
October 2005. The second defendant is the N Georgiou trust. The
sole shareholder of the first defendant is according
to Mr M
Georgiou, the Michael Trust. Mr M Georgiou is a director of the first
defendant.
3.
THE ISSUES
[2]
Plaintiff caused summons to be issued against the defendants wherein
it claimed from the first defendant, alternatively the
second
defendant R6 133 136,89 being the balance due for
professional architectural services rendered and disbursements
incurred in respect of the Loch Logan Extension project in
Bloemfontein. Plaintiff’s claim is set out in its interim fee
claim dated 10 June 2008 (annexure LLW 1 to defendants’ plea)
and has three components. They are, firstly, the fee claim.
Then
there are claims for additional works relating to Mr Price, Rooftop
parking zone 1-4, Exterior cladding to façades,
Zone 5 parking
and Speed ramps. The third component of plaintiff’s claim is
one for disbursements. Defendants denied liability
on the basis that
plaintiff’s claims would be extinguished by the first
defendant’s counterclaim if not found to be
premature. The
claim in reconvention alleges that the plaintiff failed to perform
its obligations in a professional and workmanlike
fashion and without
negligence, as a consequence of which the first defendant suffered
damages in the amount of R33 903 077.
4.
SEPARATION OF ISSUES
[3]
Quantum of the first defendant’s counterclaim was separated as
an issue to be determined later.
5.
INSPECTION IN LOCO
[4]
An inspection in loco was held at the request of the first defendant
on the first day of the trial, lasting about two hours.
The
proceedings were filmed and a DVD containing audio and visual
material of what was said and pointed out, mainly by Mr Gautschi,
counsel for the defendants was handed in as an exhibit. The
inspection assisted in comprehension of evidence concerning specific
places at the shopping complex. The main points seen at the
inspection and dealt with at the trial were the Woolworths
off-loading
yard ingress and egress, the parking congestion on the
mezzanine 1 level leading to the exits onto Kingsway, the eastern
façade
concrete slabs and the Pick ‘n Pay delivery yard.
During the trial a very short video was also shown of a truck backing
into
the Woolworths off-loading parking area. No minute was drawn of
the inspection and no findings are coupled to what was seen during
the inspection or the video shown in court.
6.
ADMISSIBILITY OF EVIDENCE
[5]
Summons in this case was issued on 14 May 2009. The trial eventually
ran from 3-21 November 2014. Because there were so many
delays in
this trial, I took the view that it was important to get the
proceedings going without interruptions caused by argument
and
rulings on the admissibility of evidence. The risk of wasting time
caused by the hearing of evidence which could later be found
to be
inadmissible appeared to be less than the risk involved in the time
that would be taken up by hearing argument and considering
rulings,
which may later have to be revised, on the admissibility of evidence.
The record thus contains evidence which is inadmissible.
In view of
the findings that I have arrived at, the inadmissible parts of the
evidence (particularly to be found in the testimony
of Bray and
Koupis) are of no significance. I have tried, as far as
possible, to leave out the inadmissible evidence that
is in conflict
with the pleadings in the summaries below. I have taken account
of the time spent on inadmissible evidence
in my ruling on costs as
appears under that heading below.
[6]
Two specific items relating to inadmissible evidence are the question
of interim or cash flow payments, and the on risk basis.
As to
the allegation relating to interim account or cash flow payments,
nothing turns on this distinction for present purposes.
As
Abrahamsohn said during cross-examination:
“
My
Lord we can talk about interim payments forever and a day. The
fact of the matter is that whatever interim payments were
due and
whatever interim payments were made and whatever issues arose during
that period, at the end of the day the project cost
is the project
cost and the fee basis is the fee basis and to air all of these
documents here is I am afraid I have to believe
it is not relevant.
”
[7]
The question at this stage is not how payments were made, but what
moneys are due. There may have been arrangements from
time to
time that the defendants pay certain amounts, as Mr Gautschi said
during cross-examination of Abrahamsohn: “it is
not in dispute
that payments were often late”. The defendants’
attempt to amend their pleadings to allege
that payments were due on
a cash flow basis, was disallowed. The defendants cannot now
allege that they only need to pay
on a cash flow basis. As
Abrahamsohn said the provision in their standard agreement (clause 12
of annexure B, clause 14 in
C and D) is supplementary, it does not
replace the obligation to pay interim accounts.
[8]
As to the “on risk” basis alleged by the defendants in
their other attempt to amend: The question in relation
to items
(2) – (5.3) in plaintiff’s claims is whether the
plaintiff achieved stage 4. The question is whether
there was
substantial completion of the working and detail drawings. In
other words, whether the drawings it produced were
capable of being
given out for construction, including having co-ordinated the
documentation with the work designed by consultants
and specialists
(clause 2.4.1 of the client/architect agreement).
7.
DOCUMENTS
[9]
More than 30 lever arch files were handed in. Below is a
summary of the contents of these files.
A
– Court Files
Volume
1
1.
Pleadings
2.
Notices
3.
Expert notices
Volume
2 (Amendments)
1.
Defendants’ amendments - p1-450
2.
Plaintiff’s amendments - p1-130
Volume
3
1.
Transcriptions
2.
Trial Bundle’s index
3.
General
-
Heads of Argument – 2
nd
Resp lack of locus standi –
Adv v Rhyn
Volume
4 (Pre-trials)
Volume
5
1.
Application for separation – Adv Zidel – p1-107
2.
Summary judgment – p1-46
3.
Application Rule 37(8) – pre-trial conference - Jordaan J
Application Amendment 28 July 2014
Volume
6
1.
Defendants’ Application to amend - 20/9/2014
2.
Jordaan J Judgment - 20/9/2013
3.
TK Annexures
4.
Defendants’ notice to amend plea - 12/9/2014
5.
Objection to amend - 19/9/2014
Volume
7
1.
Exhibits 1 and 2
2.
Opening Address & Defendants’ Response
3.
Inspection in Loco documents prepared by Defendants
4.
Jordaan J – Judgment of 2013.
Plaintiff’s
size A3 plans
DVD
of Inspection in Loco
B
– Plaintiff’s Trial Bundles
Volume
1 - Plans
Volume
2 - Plans
Volume
3 - Plans
Volume
4 - Minutes of meetings
Volume
5 - Minutes of meetings
Volume
6 - Minutes of meetings
Volume
7 - Disbursements travel expenses
Volume
8 - Plan printing disbursements
Volume
9 - Brochures and Sundries
C
– Plaintiff’s Expenses Bundles
Volume
1 - Plan Printing Ledger
Volume
2 - Disbursements – Brochures and Sundries
Volume
3 - Disbursements – Brochures and Sundries
Volume
4 - Travel Expenses
Volume
5 - Travel Expenses
Defendants’
Trial Bundles
Volume
1 - Plans - p1-31
Volume
2 - Plans - p32-59
Volume
3 - Minutes of meetings - p60-488
Volume
4 - p489-1023
1.
Minutes of meetings - p489-747
2.
Contract instructions - p748
3.
Remedies to tiling - p749-755
4.
Request information - p756
5.
Sketch – SA passenger design Vehicle - p757
6.
Sketch plan – World of Window - p758
7.
Minutes - p759-760
8.
Staircase screens - p761
9.
Letters - p762-944
10.
Photos - p945-1023
Volume
5 - p1024-1520
1.
Geometric parking guidelines - p1024-1038
2.
Directorate economic Dev & Planning - 4/2003 - p1038-1064
3.
Project report - 8/2005 - p1065-1094
4.
Letter – p1095-1100
5.
Floor plans – p1101 & p1102
6.
Joint building contracts committee – p1103-1154
7.
Letters – p1155-1163
8.
Report Andrew Dekker –p1167-1174
9.
Sketch entrance nr 16 – p1175
10.
Letters / Extract SABS 0107 / council’s comments / drawings /
plans / Provisional Bill of Quantities June 2005
Volume
6 - p1521-1981
1.
Minutes / Letters / Plans / Service Agreements / Deed of Sale /
Account / Tax Invoices / Payment Reconciliation / Payment Schedule
/
Principal building agreement.
Volume
7 - p1982-2676
1.
Agreements / Letters / Tax Invoices / Statements / Plans
2.
Independent Engineer Report - p2233-2259
3.
Photos - p2260-2676
Volume
8 - p2677-3451
1.
Photos - p2677-2904
2.
Agreements / Letters
Volume
9 - p3452-3549
1.
Pick & Pay Building Details
Volume
10 - Building drawings
Volume
11 - Rob Bray, sub-divided into Bray 1, Bray 2, Bray 3.
Volume
12 - Dr Rankine
Volume
13 - T Koupis
Volume
14 - Van Rensburg
Volume
15 - Dries Nel
D
– Defendants’ DIY Kit
Volume
1
1.
Correspondence
2.
Minutes of meetings
3.
Plans/drawings
4.
Photos/videos
5.
Defendants’ Expert Reports (“DER”)
6.
Plaintiff’s Expert Reports (‘PER”)
7.
Other
Volume
2
8.
Stair 9
Design
10.
Main Atrium Columns
12.
Tiles
13.
Tiles
14.
Council’s Approval Documents
15.
External Concrete Façade
18.
Deep Transfer Concrete Beams & Lost Parking Bays
19.
Deep Transfer Concrete Beams & Lost Parking Bays
20.
Walk-Off Carpets
21.
Pick & Pay Delivery Yard
22.
Lift Door Openings
8.
LITIGATION HISTORY
16
September 2008 Section 345 Companies Act letter of
demand by Plaintiff to first defendant.
19
May 2009
Summons issued.
4
June 2009
Summary Judgment
Application issued.
19
June 2006
Affidavit opposing summary
judgment.
25
June 2009
Summary Judgment Application
removed from roll by agreement, leave to
defend granted.
2
September 2009 Plea filed.
2
September 2009 Counterclaim
filed.
18
September 2009 Plaintiff’s plea
to First Defendant’s Counterclaim.
2011
Matter set down for trial, postponed to October 2012.
26
May 2011
Application to separate
quantum and merits, removed.
14
June 2011
CJ Musi J: Postponed
sine die
.
15
October 2012
Intent to Amend by defendants, objected to. Trial postponed.
Costs reserved.
October
2012
Application for leave to
amend filed, and opposed by plaintiff.
November
2012
Defendant withdraws application for amendment.
August
2013
Fresh notice of
amendment filed by defendant, objected to.
5
September 2013 Application
for leave to amend filed.
September
2013
Supplementary notice of amendment filed.
9
September 2013 Trial set
down for ten days.
20
September 2013 Judgment Jordaan J:
Defendant’s application for amendment refused, trial postponed
sine die
.
13
May 2014
Defendant’s Notice
of Intention to Amend plea and counterclaim.
23
May 2014
Notice of objection
filed.
20
June 2014
Notice of motion: Defendant’s
application to amend plea and
counterclaim.
8
August 2014
Plaintiff’s Answering Affidavit
to defendant’s
application to amend.
15
August 2014
Defendant’s replying affidavit.
28
August 2014
Jordaan J: Application for amendment: condonation
refused, matter
struck off roll.
3-21
November 2014 Trial.
9.
KEY DATES
23
June 2003
Agreement – Plaintiff
and Trust (Appointment).
10
December 2003 First Invoice.
30
June 2005
Murray and Roberts Main Contract
signed.
12
July 2005
Murray and Roberts
on site.
20
October 2005
Sale of property as a going concern by second defendant
to first
defendant.
2
December 2005 Change
of Name of shelf company to First Defendant.
10
May 2007
Last Invoice.
17
August 2007
Last payment by defendants.
23
August 2007
Certificate of practical completion by NBA Studio.
29
April 2009
Revised “E”
Invoice on which claim is based.
10.
DEFENDANTS’ AMENDMENTS
[10]
The defendants tried to amend their plea and counterclaim on a number
of occasions. The first attempt was on 14 October
2012, after
Mr Gautschi came into the matter. According to the judgement of
Jordaan J that application was withdrawn in November
2012. On
13 August 2013 a notice of intention to amend was filed. The
plaintiff objected on 23 August 2013. A
notice of motion
seeking leave to amend was filed on 4 September 2013, which was also
objected to. After that a supplementary
notice to amend was
filed. The matter was on the trial roll for 9 September 2013,
and came before Jordaan J. The application
to amend was argued
before him. He allowed certain paragraphs and refused others.
The amendments sought by the defendants
are set out below. The
ones in brackets were refused by Jordaan J.
(1)
(Plea: paragraph 4.4)
Deleting
this paragraph and replacing it with other paragraphs (p179-194).
(2)
(Plea: paragraph 5.3 - 5.10)
To
be replaced (p194-199).
3.
Counterclaim: Paragraph 7 of the annexure LLW 3
The
amount of R377 425 to be replaced by R2 912 739,09 and
adding the words: “and caused the unnecessary additional
cost
of reconstructing a suitable vehicle ramp according to a different
design a breakdown of which costs appears in annexure LLW3a”
after M1 level to exit.
4.
Counterclaim: Paragraph 10 of the annexure LLW3
This
concerned the Atrium columns.
5.
Plea: Prayers
Insertion
of words at the end of the prayers (p200).
(6)
(Counterclaim: paragraph 3)
Deletion
and substitution of words.
7.
Counterclaim: Deletion of claim 1 and the
alternative.
The
balance of the relief sought in paragraph 7 concerns the amounts.
(8)
(Defendants’ reply to plaintiff’s request of particulars)
These affect the amendments requested.
9.
Counterclaim: paragraph 13 to Annexure LLW3
This
concerned the floor tiles, and added a complaint about the movement
joints.
[11]
Thus four amendments were disallowed, namely those requested in
paragraphs 1, 2, 6 and 8. As set out in the judgment
of Jordaan
J, the amendments essentially concerned two aspects:
(1)
In the first place the defendants now wanted to allege that the
agreement was that interim payments would not be pro rata performance
based as envisaged in the written agreements, but based on agreed
cash flow.
(2)
Secondly, that the plaintiff’s services would be on a risk
basis, and not as set out in the terms of the written agreements.
The amendment of paragraph 2 sought to extensively amend the
defendant’s plea to paragraph 9 of the particulars of
claim,
resulting in an alleged overpayment, and furthermore alleging that
certain works itemised as particular premises on the
property, were
not done by the plaintiff and in some instances the plaintiff was not
entitled to remuneration. The request
in paragraph 6 depended
on the request in paragraph 1. This request depended on the
success of the other amendments sought.
These
requests for amendments were disallowed.
11.
EVIDENCE
[12]
In order to save time expert witnesses did not read out their reports
and curricula vitae but merely confirmed the correctness
thereof in
their evidence in chief, save to highlight the important aspects
thereof.
Abrahamsohn
[13]
Abrahamsohn was the main protagonist of plaintiff’s claim.
He has been associated with the plaintiff since 1969
as employee,
shareholder and director. He retired as director in 2014.
In cross-examination Abrahamsohn said he became
directly involved in
this project in mid-2006. Richard Leighton who was in charge of
the project on behalf of plaintiff departed
for Australia in November
2006. Then Richard Gardiner took over, and Abrahamsohn took
over to oversee and become involved
in the project. Roger
Gardiner re-joined the plaintiff company in mid-2006, Bray appointed
him. Abrahamsohn denied
that Leighton was an arrogant person
and his attitude made it awkward for the council to deal with him.
Abrahamsohn said
he had no knowledge of the council’s
alleged difficulty to work with Leighton.
[14]
Abrahamsohn agreed that the last invoice was on 10 May 2007. He
also agreed that the last payment by defendant was based
on cash
flow, on 17 August 2007. Abrahamsohn said the invoice dated 10
December 2003 for R879 293,40 was based on an
estimate of the
fee, of which a portion was then charged. In answer to the
statement that this was a fast-track project,
while one part of the
building could be in phase 1, another could be in phase 3,
Abrahamsohn agreed that that was possible.
[15]
The Quantity Surveyor gives an estimate of the final cost. That
was on what Bentel based its accounts. If the final
account is
less that the estimated amount, there will have to be an adjustment.
Abrahamsohn stressed that all payment were not
made timeously. It
was put that every invoice for interim fees was paid. Abrahamsohn
said the practice of the plaintiff’s
company is to charge fees
on the scale applicable on the date of the letter of appointment.
[16]
In re-examination Abrahamsohn was asked what his view was on clause
10 in the letter of 8 November 2008, where the last sentence
was
added. Abrahamsohn responded that the conceptual work is
broad-brush. That is a fairly volatile stage of the project,
where there are changes in concept, and sketches identify the final
concept. That concept will then become a drawing. At
the
drawing level changes were quite unusual. In the free flowing
stages of the architect’s work many changes take
place. The
plaintiff has not charged defendant for the development of the
concept. Drawings prepared in a stage of
completion are
fee-worthy in stage 4. Even when the drawings are ready for
construction there may be changes needed also
by the developer, or
the tenants. The drawings of plaintiff were completed
sufficiently for construction, and if not used
are fee-worthy. From
time to time the client would ask for additional features to be
added. The adding of those features
is a fee-worthy exercise.
[17]
The claims identified by the plaintiff comprise substantial
completion of stage 4, with reference to clause 3.3, and in the
Architects Standard Agreement in Court Bundle 4 page 28 paragraph
5.3.
Mr
Fee
[18]
Mr LRM Fee is a qualified architect who is a past president of the
South African Institute of Architects. He was involved
in the
design of the Carlton Centre in Johannesburg in the 1960s. His
curriculum vitae appears at page 51 of the Expert Bundle.
His
report on the counter claim appears at pages 256-264 of the Expert
Bundle. He saw the Loch Logan Shopping Centre
for the first
time on Wednesday 7 August 2013 in the company of Abrahamsohn and
based his report and evidence on what he saw on
that day and what he
was told. The certificate of practical completion was issued by
Nel of NBA the stage 5 architects on
23 August 2007. The
issuing of the certificate of practical completion brings the project
to an end and means that the building
is fit for the purpose for
which it was intended, and is capable of being taken over by the
owner.
[19]
Fee said that when designing a large shopping complex like this one,
on a fast track basis, compromises have to be made. Decisions
need to be made by the architect quickly because the project cannot
be delayed. With the benefit of hindsight some decisions
taken
in the heat of the moment appear to be incorrect. Whatever has
been done due to the fast-track nature of the project,
has to be
corrected then.
[20]
The question at the end of the day is, where the requirements have
not been complied with, what is the outcome? Are there
negative
results caused by the non-compliance? In the final analysis the
question is whether the mall failed because of failure
to adhere to
the requirement complained about.
[21]
Payment for stage 4 is due on substantial completion of working and
detail drawings.
Robert
Reginald Bray
[22]
He testified for the Defendant although he worked for the plaintiff
at the time of the project. He is an architect.
He joined
the plaintiff in 1987. In 2007 he was in the Design Department
at plaintiff. He was the joint senior partner
and the director
in charge of client relationships. He handled the three
Georgiou projects, and conducted most of the business
without
reference to the partners. He met Tony Koupis in 2003, and
wrote a letter about the proposed endeavour at the Loch
Logan
Waterfront dated 23 June 2003. (Annexure “A” to the
Particulars of Claim) The principal contractors
Murray and
Roberts came on site in 2005. Bray left Bentel because he did
not agree with the manner the company was run.
He called a
shareholders’ meeting in August 2007 at which he proposed that
performance rewards be given to staff. Two
partners, Mr
Abrahamsohn and Steve Roberts, refused to vote on the proposal and
left the meeting. Bray resigned there and
then. He had a
six month notice period. His departure from Bentel was
acrimonious.
[23]
The Loch Logan Waterfront Shopping Centre opened in August 2007.
There are three court cases concerning the three Georgiou
projects –
Cedar Square, Fourways Mall (where Bray also testified against
Bentel), and where nothing has been built yet.
[24]
The job captain for the Loch Logan project was initially Richard
Leighton, who left for Australia in November 2006, whereafter
Roger
Gardiner took over. Bray testified that many letters were
written at an early stage of the project which he had hoped
would be
superseded by a contract. The letters were preparatory work.
In this case no agreement was ever signed.
Bray has been
involved in more than 100 shopping centre building projects. He
explained that the problem with these projects
is that the client
does not want to accept the risk before finance is in place.
The initial work is “on risk”
to the architects.
[25]
In December 2003 Bray was stressing about payments, because staff
salaries and bonuses had to be paid. Bentel had an
overdraft of
R6 million. He sent an invoice to Tony Koupis for payment.
He got no payment. In February 2004 he
sent another invoice,
claiming three payments of R200 000 each. Bray phoned
Michael Georgiou who told him this was a
family business, and that
they were funding the project out of their own resources at that
stage. Bray knows that a developer
gets no money from the bank
until builders move on to the site, the work is at risk.
[26]
The letter Bray sent out on 9 February 2003 formed the basis of the
final agreement he anticipated would be signed. Bray
hoped that
the client would sign the letter of 9 February 2003, but no client
ever did, and no client ever accepted the provisions
of clause 8/10,
as to payment for concept work. On 8 November 2008 Bray sent a
further letter to Koupis. The contractor,
Murray and Roberts,
was now on site. Bray added a sentence to clause 10, because he
hoped to get the agreement in place.
But this clause never came
into effect. In his experience of working with shopping
centres, Bray said that there can be up
to 180 shops. The shops
change on a regular basis, and also charge their position. You
are constantly shuffling the
shops around in this huge puzzle.
The tenants change right up to the end, even in the final stages of
the development.
[27]
The Loch Logan project was not straightforward. The developer
wanted 70 000 square metres of retail space adjacent
to the
water. The parking was moving around from the roof to the
stadium. The tenants were not firm. The project
grew from
the initial R150 million to R350 million. Bray was the senior
partner at Bentel and was quite happy to do changes
on this project
without charging fees.
T
Koupis
[28]
Mr Tony Koupis testified for the defendant. He joined the
Georgiou Family Business 20 years ago. He has completed
more
than 50 major developments. At the moment he is involved in a
one-and-a half billion Rand development of a hospital
in Cape Town.
The Georgiou family wanted to develop the Waterfront in Bloemfontein
further to make it a regional shopping
centre. They found
Bentel on the internet and saw that Bentel had done architectural
work for such developments, and Koupis
invited Bray to come to
Bloemfontein to discuss the project. Bentel was at that stage
the architects for Pick ‘n Pay,
and Pick ‘n Pay was one
of the tenants targeted by the defendant. They had just
completed the Kloppers extension to
the Waterfront in 2002.
Bray wanted Koupis to sign a contract, but Koupis was unwilling to do
so.
[29]
Annexure 0.3 in Defendant’s Bundle 11 (Bray 3, page 81 of
Bundle 11) was the first invoice sent by Bentel on 10 December
2003.
Bray wanted money, but Koupis did not agree that he could be paid.
The discount at that stage was 15%, but the Georgious
felt that
because it was such a large project, they should be entitled to
17½%. At that stage Bentel had done a substantial
amount
of work. Soon it appeared that the project was much larger than
initially anticipated, about R100 million more.
They were
getting to the Council approval stage, the tenants had not yet been
secured. Koupis testified that the biggest
risk they as
developers have is that information is not given to contractors on
time. At that time the market was building
up for the World
Cup, to be held in 2010. There were many occasions when Bentel
would delay matters because of late delivery
of plans. Koupis
discussed this lateness with Bray, and they made an arrangement on
payment. Leighton wrote to Koupis,
it was clear to Koupis that
Leighton did not agree with Bray.
[30]
In the Defendant’s Bundle 13 the invoices are at pages 49-103,
and the reconciliations of payments appear at page 104-112.
The
main contractor was on site on 12 July 2005, but the working drawings
had not been completed at that stage. Round about
8 October
2005 post dated cheques were given to Bentel to provide some comfort
on their side. The normal procedure is for
an architect to
value his work off-site, but here the architects were busy with stage
4 drawings, while some building was taking
place, and other drawings
were at stage 1 and 2. It was not possible to determine the
stage of the work as a whole.
In April 2005 there were some
R400 000 payments and some R215 000. Some of these were
catch-up payments. The major
part of the work still had to be
done.
[31]
With reference to annexure LLW 8 a letter from Leighton to Koupis
dated 10 April 2006 Koupis testified that at that stage the
project,
in his words, was going backwards. Koupis then decided to bring
Project managers, SIP on board. SIP took over
the
administrative role of the architects, Bentel, and SIP co-ordinated
the process. If the architect gets assistance from
a project
manager, the developer is usually entitled to a 10% discount.
Koupis told Bray that they were reducing the work
of the architects,
and they agreed that the plaintiff would in future give a discount of
20%. That is not mentioned in any
letters, but appears from the
invoices, in particular in LLW 1 where a 20% discount is shown.
[32]
In constructing a shopping centre, one deals with a critical mass,
which means that you want the shopping centre to be overwhelming,
so
that there are just no other alternative to other tenants than to
come to you. There were many changes to this project
as it went
on.
[33]
Koupis negotiated with Murray and Roberts about their fees.
They were nine months behind schedule. Murray and Roberts
wanted to add other work, so that the penalty for lateness would be
absorbed. Similarly, Koupis did not want to give them additional
work, because then he could not claim the delay penalty.
Lamprechts
[34]
Mr H A P Lamprechts is an architect who has been practising for 30
years. He has worked as urban and regional planner
and project
manager. There is no such thing as conditional approval of
plans. The plans are returned by council with
a form, which
sets out what has to be done before the plans will be approved.
Johann
Jansen van Rensburg
[35]
Johann van Rensburg is an architect who works for NBA studios in
Bloemfontein. His CV appears at page 92 of the expert
bundle,
and he supports the opinions of Nel with reference to items 1, 2, 3,
4, 5, 11, 14, 17, 19 of the counterclaim. He
also supported the
report of lost parking, which he and Nel drew up together, which
report appears at page 334-350 of the expert
bundle. Mr Zidel
cross-examined Nel, who testified after Van Rensburg, on this
report. Van Rensburg testified that
he handled stage 5 of the
project together with Nel. Van Rensburg was on the site
full-time. After 2007 he remained
involved, up to the present.
He has been called out on numerous occasions because of tiles
that popped.
A.
C. P Nel
[36]
Andries Carel Stephanus Nel is one of the two members of NBA studio,
the stage 5 architects for this project. His CV
appears at page
147 of the Expert bundle, and his reports are the following:
(i)
27 May 2011 (p149-192) dealing with all items in the counterclaim
(iii)
26 August 2013 (agrees with Hennie Lamprechts at 296-301)
(iv)
28 August 2013 (updated report on lost parking (305-309))
(ii)
17 October 2014 (p334-350) on item 19, lost parking
(v)
29 October 2014 (supplementary report on item 8 (stair 9 design),
item 9 (Pick ‘n Pay internal staircase), item 21 (Pick
‘n
Pay delivery yard) item 22 (lift door openings) at pages 368-371.
[37]
In cross-examination Nel confirmed that NBA studio was the principal
agent on the entire project. He said the provision of
“as
built” drawings is an obligation of the stage 4 architect,
Bentel. The appointment of NBA studio as stage 5 architect
was an
oral appointment during 2003. Nel confirmed that NBA studio
have been paid for their work. They had an agreement to
be paid on an
agreed cash flow basis. They are still busy on the project.
12.
MEETING OF EXPERTS
[38]
The experts on behalf of plaintiff and defendant had a joint
consultation on 30 October 2014 and prepared a joint minute that
was
filed in court at the end of the case. The persons who
participated in the joint consultation were Alf Abrahamsohn, Robin
Fee and Roger Gardiner. On behalf of the defendants: Dries Nel,
Tony Koupis, Hennie Lambrechts, Rob Bray and Johann Jansen
van
Rensburg. Lamprechts was appointed as chairperson by the
meeting. The meeting lasted from 09h00 to 15h00. The minute
of
the meeting of experts is dealt with under the heading of each claim
and item of the counter claim below.
13.
THE NATURE AND CONTENTS OF THE CONTRACT BETWEEN THE PARTIES
[39]
The particulars of claim allege that on 23 June 2003 the plaintiff
and first defendant, alternatively second defendant entered
into an
oral agreement in terms whereof the first and/or second defendant
appointed the plaintiff as architect for the project
known as the
Loch Logan Extension. In the plea defendants admit that an oral
agreement was entered into between plaintiff
and the second defendant
on 23 June 2003 appointing plaintiff as architect for the project.
Plaintiff alleges that the terms
of the agreement were reduced
to writing and recorded in a letter dated 23 June 2003. The
letter is signed by Bray who was
at the time the joint senior partner
(as he described himself when he testified) of the plaintiff, and
states inter alia:
“
Thank
you for meeting with me on Wednesday and for your invitation for
Bentel Associates International (Pty) Ltd to undertake the
architectural commission for the proposed extensions at your Loch
Logan development.
…
As
also discussed, the involvement of the local architect who has
already done some planning and has a longstanding relationship
with
you, could be accommodated in the following manner:
Bentel
Associates International (Pty) Ltd would undertake Stages 1-4 of the
work as defined in the ‘Terms of Appointment’
of an
Architects and the local architectural firm would perform the
functions of Stage 5 – Contract Administration and
Inspection.
Included
in the fees for Stages 1-4 we would provide the attendance of our
job captain at two week design co-ordination meetings
to ensure that
documentation flow was maintained and that design decisions were
made with Bentel Associates International’s
involvement. This
would ensure that 25% of the total architectural fee was available
for the local architectural firm. Whilst
this is a normal situation
in many architectural associations it implies that the ‘Principal
Agent’, in terms of
the building contract, would have to be
the local firm who administer the contract.
……
We
are prepared to discount our fee to you by 15% and to perform the
work required to secure the major tenants on a ‘risk’
basis, i.e. no fee would be chargeable unless the project were to
proceed. Disbursements including travel and brochure printing
would be chargeable during this ‘on risk’ phase. Fees
would only become chargeable once leases had been signed
by the major
tenant, Pick ‘n Pay and one other.
……
..
We
attach our standard appoint of Architect’s letter for your
signature based on the above discount.”
[40]
It is not clear what standard letter was attached to Bray’s
letter of 23 June 2003. A letter dated 9 February 2004
is
attached as annexure “B” to the particulars of claim
which set out the varied terms of the agreement between the
parties
whereby the discount was amended from 15% to 17½% (clause 3).
Plaintiff alleges that the “terms of the varied
agreement were
incorporated in letters addressed by the Plaintiff to the Second
defendant on 9 February 2004, 8 November 2005 and
19 April 2006”,
being annexures “B”,”C”, and “D”
to the particulars of claim. In the
plea the defendants admit the
plaintiff’s allegations “in so far as they are in
accordance with the terms and conditions
of annexures “A”,”B”,”C”
and “D” to the Particulars of Claim”.
[41]
Although the letters attached as annexures “B”,”C”
and “D” are largely the same, there
are some differences.
In clause 3 the amount increases from R150 million for the
project in annexure “B” to R350
million in annexure “D”.
Clauses 5 and 6 of annexures “C” and “D”,
dealing with Consultants
and Site details and development control do
not appear in annexure “B”. Those two clauses were added
for the first
time on 8 November 2005 in annexure “C”. A
more significant difference is the last sentence added to clause 10
on 8 November 2005 in annexure “C”, the letter dated 9
February 2004.
[42]
The clause headed “Changes in Scope of Works and Substantial
Changes to Drawings” (clause 8 in the letter of 9
February 2004
(annexure “B”) reads:
“
8.
Changes in Scope of Works and Substantial Changes to Drawings
If,
after completion of working and/or detail drawings, any changes in
scope of work or any substantial changes to or alterations
of such
drawings are required at the instance of the Client or a particular
Tenant, the work involved in effecting the necessary
changes will be
charged for in terms of the applicable regulations and codes of
practice in terms of the Government Gazette No.
4805, Volume 319 No.
13707 dated 3 January 1992 and any applicable amendments thereto
which may be promulgated from time to time.
Time charges shall
be based upon the Private Sector scale for time charges.
”
[43]
In the letter of 8 November 2005 the following sentence is added to
the end of this paragraph:
“
Changes
to the plans during the normal course of developing the concept will
not constitute an extra fee.
”
[44]
In the letter of 9 February 2004 (annexure “B”) clause 13
deals with “Supplementary Services” and reads
as follows:
“
13.
Supplementary Services
Associated
Companies within our Group structure have the expertise to provide
supplementary services in respect of Interior Design,
Graphic Design,
Corporate Identity, Centre Signage, Logo Design and other related
design requirements. The scope of these
services and the fees
chargeable for these will be discussed in respect of each project as
appropriate.
”
[45]
In the letter of 8 November 2005 “Supplementary Services”
are dealt with in clause 15:
“
15.
Supplementary Services
Associated
Companies within our Group structure have the expertise to provide
supplementary services in respect of Interior Design,
Graphic Design,
Corporate Identity, Centre Signage, Logo Design and other related
design requirements. The scope of these
services and the fees
chargeable for these
Included
in the aforementioned scope of works will be:- Mall Design / Theming
of Shopping Centre; Standard Shopfront Designs; Wayfinding
Signage;
Centre Logo and Name . Tenant layouts and signage will be by
tenant designers but approved by our office.
Layout of external
tenant signs will be co-ordinated and planned by our office.
”
It
will be noted that the last sentence of the first paragraph of clause
15 ends abruptly.
[46]
The letter of 19 April 2006 contains the identical clause 15. As
in the previous letters, after the last clause, the
following three
paragraphs appear:
“
We
trust that we have covered all aspects of our Appointment, but
request that you advise us in the event of there being queries.
We
enclose 2 copies of this letter and request that you indicate your
acceptance by initialling each page and signing in the space
indicted
below on one copy of the letter. Please return the signed copy
to us for lodging in our files.
We
again express our appreciation for the appointment as Architects for
this Project and assure you of our best attention at all
times.
”
[47]
The second defendant sold the property to the first defendant on 20
October 2006. Clause 9.2.1 reads as follows:
“
9.2.1
save as I disclosed in the title deed relating to the
Property, there are and will be no material agreements
in respect of
the Property to which the Purchaser will become bound on obtaining
transfer of the Property.
”
Clause
11.4.1 reads:
“
11.4.1
It is recorded that it is the intent and purpose of the parties that
the Purchaser should be enabled to continue the
rental enterprise
conducted from the Property as far as possible in the same manner as
it was conducted by the Seller up to the
date of transfer and that to
that end the Purchaser shall be substituted for the Seller in respect
of each of the contracts in
respect of the said rental enterprise
insofar as the terms of such contracts individually allow. It
is specifically agreed
that, as far as it may be necessary, the
Seller shall enter into such Agreements as may be necessary to assign
its rights and obligations
(but does not warrant the other party will
consent to the delegation) in terms of the contracts referred to
above to the Purchaser.
”
Clauses
14 and 15 read:
“
14.
WHOLE
AGREEMENT
This
Agreement constitutes the whole Agreement between the parties as to
the subject matter hereof and no Agreements, representations
or
warranties between the parties regarding the subject matter hereof
other than those set out herein, are binding on the parties.
”
“
15.
VARIATION
No
addition to or variation, consensual cancellation or novation of this
Agreement and no waiver of any right arising from this
Agreement or
its breach or termination, shall be of any force or effect unless
reduced to writing and signed by all the parties
or their duly
authorised representatives.
”
[48]
In the standard client/architect agreement the following clauses are
relevant:
Clause
2.4 defines Stage 4:
“
2.4
STAGE 4: TECHNICAL DOCUMENTATION
2.4.1
Prepare construction documentation and co-ordinate the documentation
with the work designed by consultants and specialists
2.4.2
Obtain approval from the relevant authorities
2.4.3
Review the estimated costs of the works in relation to the budget
2.4.4
Prepare documents to procure offers for the execution of the works
”
Clause
4.6 provides:
“
4.6
CHANGES OF STATUS OF THE PARTIES
Neither
party shall assign, sublet or transfer its interest in this agreement
without the written consent of the other, which consent
shall not
unreasonably be withheld
”
Clause
10 deals with the payment of fees and disbursements.
“
10.0
PAYMENT OF FEES AND DISBURSEMENTS
10.1
The architect shall be entitled to render interim accounts on a
monthly basis which are payable on presentation.
10.2
Accounts shall be based on an assessment by the architect of the
professional services rendered to date. The aggregate
of the
interim claims is not to exceed the total fee payable.
10.3
Fee and disbursement accounts may be billed separately.
...
10.6
Should the client allege a claim against the architect, a contactor
or any other partly involved in the project, such claim
shall be
dealt with in its own right. The client maynot withhold payment
of fees or disbursements of part thereof due to
the architect on this
account.
”
Clause
11.4 reads:
“
11.4
WHOLE AGREEMENT
This
agreement, including any annexures hereto, is the whole of the
contract between the parties and no variation hereof shall have
any
effect unless reduced to writing and signed by both parties. The
validity of clause 11.3 shall not be effected by the termination
of
this agreement.
”
[49]
The Main contract between the second defendant and the contractor,
Murray and Roberts, was signed on 30 June 2005.
Conclusion
on nature of agreement
[50]
As the pleadings stand, with the admission of the defendant that the
written documents are the contract between the parties,
it means that
the plaintiff is entitled to remuneration for work based on the
contract value as determined by the quantity surveyor.
The
question is for what work the plaintiff is not entitled to
remuneration because the drawings were part of the concept
drawings,
excluded in the last sentence of paragraph 10 on page, and did not
qualify as stage 4 work or because the work drawn
was not
constructed.
14.
PAYMENT OF FEES : INTERIM FEES OR CASH FLOW BASIS
[51]
The defendants contend that the agreement was that fees were to be
paid on a cash flow basis. The plaintiff says it is
entitled to
render interim accounts.
[52]
All the Bray letters, annexures B, C and D state at the outset in
paragraph 1:
“
Our
services will be in accordance with the ‘Client/Architect
Agreement’ published by the Institute of South African
Architects, a blank copy of which is enclosed herewith.
”
The
Client/Architect Agreement provides:
“
10.1
The architect shall be entitled to render interim accounts on a
monthly basis which are payable on presentation.
10.2
Accounts shall be based on an assessment by the architect of the
professional services rendered to date. The aggregate of the
interim
claims is not to exceed the total fee payable.
”
[53]
The defendants unsuccessfully attempted to amend their plea to
withdraw the admission that the contract was as pleaded and
to allege
that payments were to be made on an agreed cash flow basis.
That application for amendment was refused by Jordaan
J in his
judgment of 2013. There was no appeal against that judgment.
The reference to cash flow payments in claim
14 of Annexure D to the
Particulars of Claim is supplementary, and is focused on a payment of
VAT. Clause 3.3 of Annexure
D states:
“
Interim
instalments of this portion of the fee will be claimed by the
Architects as the work proceeds.
”
[54]
When Bray saw he was not getting any money at the start of the
project he agreed with Koupis on certain payments, just so as
to get
money in for the plaintiff. The contract makes provision for
interim payments as the work proceeds, and that is what
the plaintiff
is claiming now.
[55]
Mr Gautschi contends that because all the interim payments based on
agreed cash flow have been paid by defendants, plaintiff
has failed
to prove that there is any basis in fact or contract on which it is
now entitled to a further interim payment. He
says the final
account will be due when presented, but it is common cause that the
final account has not yet been tabulated and
the final cost of the
works has not yet been determined. Because all interim agreed
cash flow payments have been paid, plaintiff
must await tabulation of
the final account when the “final cost of the works” will
be determined. Clause 3.5
of annexures “B”, “C”
and “D” provides:
“
The
agreed percentage fee based upon the final cost of the works less
previous payments payable upon practical completion, subject
to final
adjustment when the final account has been tabulated.
”
[56]
Mr Zidel points out that clause 14 of annexure “C” to the
particulars of claim deals with payment of accounts.
The
parties can agree as to how payments are to be made. They could
for instance say, “we have done work, let’s
agree you pay
us R200 000”. There may be an agreement to pay
according to cash flow. It is not in dispute
that the
defendants were always in arrears. There has to be an estimate
of the amount due. That has been done. When
the final
account has been tabulated there will be a final figure. At
this stage the plaintiff is allowed to claim on the
estimated cost
(which is what the Quantity Surveyors have done). The plaintiff
finished its work in 2007, we are now nine
years down the line.
[57]
The point that payment is not due because the final account has not
been tabulated is not taken in the defendants’ plea.
In the
plea the defendants attach a recalculation by the Quantity Surveyors
of the project, the Verster Berry Partnership, of the
amount due to
the plaintiff, and the defendants say in the plea that that reflects
the total amount due to the plaintiff. The
defendants say that
payment of that amount must be stayed until defendants’
counterclaim has been decided. There is
no merit in Mr
Gautschi’s contention that the claim is premature.
II
CLAIMS AND COUNTER CLAIM ITEMS
15.
HOW CLAIMS ARE SET OUT
[58]
At all the plaintiff’s claims set out below, as well as with
all the items under the counterclaim, there are four headings:
(i)
the formulation of the issues in dispute by the expert witnesses at
their joint meeting on 30 October 2014 and the views expressed
at
that meeting; (ii) the evidence relevant to that claim or item; (iii)
the contentions of the legal representatives, and (iv)
a conclusion
on that item.
16.
PLAINTIFF’S CLAIMS
[59]
The first issue was the plaintiff’s fee claim:
(1)
Plaintiff’s fee claim
(i)
Experts’ Minute
The
plaintiff claims payment of outstanding fees due to it in respect of
having reached stage 4 on the project. The experts at their
pre-trial
meeting identified the following issues:
1.1
Whether the plaintiff achieved stage 4
The
plaintiff’s experts were of the view that stage 4 was achieved
because all components were completed and built, and council
liaison
is stage 5.
The
defendant’s experts disagreed and were of the view that various
aspects were outstanding to achieve the completion of
stage 4 e.g.
there was an incomplete set of As-built drawings, council approval
was conditional and NBA had to partially complete
drawings for
approval.
1.2
Whether the calculation of the plaintiff’s
fees is done in accordance with the applicable scale of fees for
2006.
Plaintiff’s
experts were of the view that the fees were calculated in accordance
to the tariff applicable when the agreement
was entered into. The
fee used as starting-point in the calculations of the plaintiff in
annexure LLW 1 attached to the particulars
of claim is R1 050 000
+ 5.5%. Defendant’s experts said the calculation still
had to be agreed upon.
(ii)
Evidence
[60]
According to Abrahamsohn the amount due by the defendants to the
plaintiff is as per the invoice, annexure “E”
to the
particulars of claim, being the amount of R15 869 310,41. The
plaintiff’s fees that are due are detailed in
annexure “LLW
1” to the plea. The value of the principal contract with
Murray and Roberts is given as R336 400
00, but Abrahamsohn accepts
the calculation of the Quantity Surveyors Verster Berry in annexure
“LLW 2” in the amount
of R336 388 862,79, which is
slightly less than his figure. In respect of the direct
contracts Abrahamsohn also accepts the
figure of the Quantity
Surveyors, being R12 911 260. The calculations of the
plaintiff’s fees is based on the standard
fees prescribed by
the governing body of the South African Architects, less 20% which
was the discount agreed upon between the
parties.
[61]
According to Abrahamsohn the plaintiff and the defendant agreed that
the defendant would appoint a local Bloemfontein architect
to do the
Stage 5 work. Therefore 25% was subtracted from the calculation
of the fees due to the plaintiff. The 25%
was allowed for the
fees for the Stage 5 architects. The work for stages 1-4, which
plaintiff would do, would be 75% of the
total fee. Thus
plaintiff would be entitled to a total fee of 75% less the discount
of 20%. Calculated on the total
contract value less the
subtractions the fee due to plaintiff is R12 426 007 according to Mr
Abrahamsohn’s calculations.
Using the figures of the
Quantity Surveyors, which Mr Abrahamsohn accepts, the figure is
slightly less. The defendants have
to date paid R13 119
165,17. Taking into account plaintiff’s additional
claims, there is shortfall of some R6 million.
According to
defendant’s calculations, plaintiff has been overpaid by almost
R5 million.
(iii)
Counsel’s Contentions
Plaintiff’s
claims
[62]
The plaintiff contends that R12 293 652,64 is its fee on
the contract as calculated in Appendix “A” to
the heads
of argument dated 20 November 2014. Plaintiff admits that
R13 119 165,17 has been paid.
[63]
Defendants say, as foreshadowed in the prayer to defendants’
plea, that plaintiff’s claim for any further fees
is premature.
All interim cash flow based payments have been paid, and
plaintiff must now wait for the final tabulation of
the final
account, at which stage the “final cost of the works”
will be determined as contemplated by clause 3.5 of
each of annexures
B, C and D. Clause 3.5 reads:
“
The
agreed percentage fee based upon the final cost of the works less
previous payments payable upon Practical Completion, subject
to final
adjustment when the final account has been tabulated.
”
[64]
Mr Zidel says this is not the final fee plaintiff is claiming. He
agrees that the final fee has not be tabulated. This
is a
further interim payment to which the plaintiff is entitled.
(iv)
Conclusion
[65]
Stage 4 is defined as follows in the client/architect agreement in
clause 2.4:
“
2.4
STAGE 4: TECHNICAL DOCUMENTATION
2.4.1
Prepare construction documentation and co-ordinate the documentation
with the work designed by consultants and specialists.
2.4.2
Obtain approval from the relevant authorities
2.4.3
Review the estimated costs of the works in relation to the budget.
2.4.4
Prepare documents to procure offers for the execution of the works.
”
In
the plaintiff’s annexures B, C and D stage 4 is defined in
clause 3.3:
“
Work
stage 4 – Approvals and Technical Documentation
A
further 40% of the fee, up to a cumulative total of 75% of the fee,
based upon the Estimated Final Contract Price payable upon
substantial completion of the working and detail drawings.
Interim instalments of this portion of the fee will be claimed
by the
Architects as the work proceeds. Updated as-built drawings
including all variations made will be provided at the end
of the
project prior to payment of the final fee instalment as agreed.
”
[66]
Abrahamsohn testified that the deduction of 40% from the fee claim by
the quantity surveyors in annexure LLW 2 on the basis
that the fee
for stage 4 is “only due once done” is totally incorrect
and unwarranted. This statement by Abrahamsohn
was not assailed
in cross-examination. The plaintiff was appointed as stage 1-4
architect. The certificate of practical
completion was issued
on 23 August 2007. There is no suggestion that plaintiff’s
appointment as stage 4 architect was
ever terminated.
Plaintiff’s fee claim should be calculated using the figures of
the works as conceded by the plaintiff
including direct contracts up
to completion of stage 4, in other works without the deduction of
40%.
[67]
All the plaintiff’s work has been done. The certificate
of practical completion was issued by NBA Studio on 23
August 2007.
The plaintiff has completed stage 4 and is entitled to payment of its
main fee up to stage 4.
[68]
It is important to note that “as-built” drawings are to
be provided at the end of the project. It is common
cause that
Nel of the stage 5 architects submitted the “as-built”
drawings. That was not because of unwillingness
of the
plaintiff to do so. It was more practical for the stage 5
architect to submit the “as-built” drawings.
No
criticism was levelled against Abrahamsohn for not doing “as-built”
drawings. The plaintiff complied with
its stage 4 obligations
and is entitled to a stage 4 fee.
(2)
MR PRICE
(i)
Experts’ Meeting
[69]
The plaintiff claims payment of the fees due to it for stages 1-4 in
respect of Mr Price.
The
defendant was of the view that plaintiff achieved only stage 3.
(ii)
Evidence
[70]
According to Abrahamsohn the original plan was to put Mr Price where
the upper floor of Woolworths is now. The drawing
of the plans
for Mr Price was a late instruction from the defendant.
Plaintiff prepared drawings. Defendant then decided
that Mr
Price would not be included there. According to Mr Abrahamsohn
the drawings were completed up to stage 4. According
to
defendant the work for stages 1-3 was done, but stage 4 was not done
or approved. A complete set of structural drawings
was made,
with one or two outstanding issues. These drawings were ready
for construction.
[71]
In response to the question in cross-examination that Nel prepared
the stage 1 and 2 drawings, Abrahamsohn responded that Nel
only
prepared a block lay-out after discussions with Mr Price. From
that block lay-out the plaintiff would do the drawings.
There
were problems with the block lay out prepared by Nel, which plaintiff
had to modify. Then plaintiff drew the
stage 4 drawings.
Subsequently defendant decided that the building of Mr Price was not
to be in the scope of Murray and Roberts.
Almost a year after
plaintiff had done the drawings, nothing had happened. Then the
defendant called Gardiner at plaintiff’s
offices. The
plaintiff was then asked to send the Mr Price drawings to Nel in
digital format, which plaintiff did. Asked
why Murray and
Roberts built a parking lot in that area, Abrahamsohn responded it
was one of the numerous changes by defendant.
170 vehicles
could park there. That was part of the requirement of the
municipality. The defendant then decided
to use that parking
for a retail area. The team was instructed to develop that area
as Mr Price. That was discussed
at the 10 April 2007 meeting.
[72]
Asked whether the plaintiff was at that time of the view that Murray
and Roberts could complete the project before August 2007,
Abrahamsohn replied that the contractor would be entitled to an
extension of time. When it was pointed out that this was
a very
late stage, Abrahamsohn responded that the plaintiff did the drawings
up to stage 4.
[73]
Referred to an email of 11 April 2007 from Nel to the Plaintiff,
Abrahamsohn responded that he recalled the email, he got an
electronic version of the drawings from Nel. He said Nel’s
were line drawings, marked up on the drawings prepared by
the
Plaintiff. Abrahamsohn denied that the drawings of Nel were
stage 1 and 2, and said that he regarded them as line drawings.
Abrahamsohn said the notes of Nel at page 2145 would be
addressed and solved at stage 3. Abrahamsohn insisted that
all
the drawings as a whole comprise stage 4. Referred to the plans
on page 123A Abrahamsohn was asked what changes were
made in revision
2 after revision 1, and Abrahamsohn responded that the lay-out
changed, the dimensions changed. He agreed
that that falls
short of what the contractor needs. Abrahamsohn said that there
were annotations on plan 120A. It was
put that these
annotations do not help the contractor, but Abrahamsohn responded
that the contractor knows what to do from page
120A. Abrahamsohn
said the drawing on page 122A is an addition to the drawing, it
updates 124A, it represents the scope of
the work. Abrahamsohn
insisted that these comprise a comprehensive set of drawings required
by the contractor to build Mr
Price. Payment for stage 4 is due
when the drawings have been substantially completed. This was
work in progress. Abrahamsohn
agreed that the contractor would
need ceiling details. Abrahamsohn agreed that the ceiling
details had not been resolved
yet. Abrahamsohn said the
contractor needs the shop fitting details in due course, those
details would all follow. He
agreed that there were no tiling
details. The roof plan was indicated on the general plan.
Details of the structural
steel needed were done t by the
structural engineer. Abrahamsohn agreed that he did not
co-ordinate with the air-conditioning
installers. Abrahamsohn
insisted that the working drawings were substantially complete.
[74]
According to the expert report of Fee, this work arises from a
decision by the defendant to omit certain open roof parking
in Zone 6
and to build new tenant space. In Fee’s opinion sheets
120A-125G represent the architect’s work stage
4 construction
documentation and comprise detailed general arrangement drawings,
plans and sections together with structural engineer’s
detailed
layouts and sections based upon the architect’s General
Arrangement drawings and issued for costing and tender.
Fee’s
view was that the plaintiff is entitled to payment for stage 4 in
respect of the Mr Price area.
[75]
In cross-examination it was put to Fee that a lot more detail is
needed for a drawing for construction. Fee responded
that the
tenant details would be populated later. Fee said the detail of
the ceiling, tiling and doors need not all be issued
at the same
time. As to co-ordination with other consultants, Fee said that
was the normal situation. Fee said the
Mr Price drawings were
extremely simple. The key issue was that the structural
engineer had to be brought in. There
were many issues as to
penetration that could not be made at the beginning. Fee’s
view was that you deal with those
issues at a later stage. In
response to the question that there were clouded areas on drawing
125E, Fee responded that the
clouded part was only part of the
drawing. Even though a portion of the drawing was not ready for
construction, the balance
as ready and could proceed. Although
the drawing was not complete, they could be issued for construction.
They would
need to be supplemented, but Fee said that that is
the reality of the concept.
[76]
Bray said his knowledge of Mr Price was limited. It was built in
2008, where Nel, the local architect finished stage 4.
Bray’s
view was that the Bentel drawings were still phase 3. Bray
disagreed with Fee who assumed that because there
was an engineer’s
drawing, stage 4 had been reached. There were no finished
specifications, no details of Hand Rails,
Bulk Heads, Sprinkler Heads
and Ceiling plans. Bentel got into stage 4, but did not complete
stage 4.
[77]
Van Rensburg testified that he prepared the drawings in respect of
the Mr Price area. NBA studios asked Bentel for electronic
copies of the drawings. NBA made a suggestion for a development and
presented it to Koupis. Van Rensburg created a new “envelope”
indicating the areas to be let. It was a steel structure.
Koupis asked Van Rensburg to send the plan to Bentel so that they
could complete it for construction. NBA got the drawings back
from Bentel and Koupis asked that NBA complete the project.
The
information received on the Bentel drawings was not complete, for
instance there was no tenant information. Van
Rensburg had
problems with the Bentel drawings and spent about a year trying to
resolve the difficulties. There were several
problems with the
Bentel plans, as indicated by the red numbering on plan 120A.
In cross-examination Van Rensburg said that
the drawings in
Defendant’s Bundle 7 pages 2145-2147 were prepared by him. He
could not say how many parking bays were
lost due to the provision
for Mr Price. Van Rensburg said his three drawings were not a
bubble diagram, which is the embrio
of a drawing. It was put to
Van Rensburg that the engineers prepared drawings based on the Bentel
drawings, and he responded
that many of the drawings were already in
existence.
(iii)
Counsel’s Contentions
[78]
In annexure LLW 2 the defendant admitted that plaintiff completed
stages 1-3, and was entitled for fees up to that stage. In
argument Mr Gautschi attempted to withdraw this admission in
accordance with defendant’s notice of amendment which was
refused.
That cannot be done. The defendant has admitted
liability for payment up to stage 3, and that admission stands.
[79]
Mr Zidel says the plaintiff’s drawings in respect of Mr Price
were substantially complete, could be used for construction
and
constituted stage 4 drawings.
(iv)
Conclusion
[80]
The drawings for this area were completed by the stage 5 architects.
The plaintiff is only entitled to payment up to
stage 3, as the
Quantity Surveyor allows in LLW 3.
(3)
ROOFTOP PARKING ZONES 1-4
(i)
Experts’ Meeting
[81]
The question here is whether the plaintiff reached stage 4. The
defendant agreed that the drawings prepared by plaintiff
were equal
to stage 3. The parties agreed that no additional rooftop
parking was constructed, and that the rooftop parking
was requested
by client should the air rights for the Zone 5 parking garage not be
approved.
(ii)
Evidence
[82]
Abrahamsohn said that initially the parking was planned to be on the
site as it is now. At the end of the project there
was an
urgency to provide more parking. Initially the parking was
intended to be in Zone 5, being on the stadium and in the
air space
over Kingsway. There were delays in acquiring the air rights so
as to get approval for the zone 5 parking. In
order for the
defendant to comply with municipal parking requirements, there would
have to be another level of parking above the
zones 1-4 parking on
the rooftop. On the defendant’s instruction plans and
structural plans for rooftop parking above
zones1-4 were prepared.
At the moment when the construction of the rooftop parking was
to proceed with the air rights were
approved so that the zone 5
parking could be constructed. This meant that the rooftop
parking over zones 1-4 did not proceed,
although plaintiff had done
the drawings up to stage 4. There were completed drawings.
According to the defendant only
stage 3 was reached, and stage
4 was not completed. In the result plaintiff subtracts 25%,
defendant subtracts 65%.
Abrahamsohn insisted that the drawings
were ready for construction, and the stage 4 drawings were made.
Although this is
a steel structure it is mostly built from the
engineer’s plans prepared by the plaintiff.
[83]
In cross-examination it was put to Abrahamsohn that the drawing on
page 98 is extracted from drawings 96a and 97A, and 98A
is the same
as 98, and 99 is a blow-up, as is 100. Abrahamsohn responded
that the drawings show the roof over the rooftop
parking that would
be the surface of additional parking. The roof on top was
added, that was necessary. 103 is the
engineer’s
drawings. On 103B the detail had to be added. The
lighting and ventilation details are not shown on
the drawings, and
the drawings were not co-ordinated with the water requirement, and
the water run-off is not shown. Abrahamsohn
responded that the
water run-off would follow from the floor below. This was a
late instruction in a fast-track project.
The absent details
were not key. In response to the statement that the water
proofing details were not shown on the
plan, Abrahamsohn responded
that the instruction from the client was that the roof was not to be
waterproofed. It was concrete
and screed laid without
waterproofing. No barriers were shown but this parking area
would be the same as other parking areas.
[84]
According to Fee, Sheets 96A-102A represent the architect’s
work stage 4 construction documentation and comprise general
arrangement drawings, plans, sections and elevations, which were
issued for municipal approval and for construction. Sheets
103A
and 103B represent the structural engineer’s layout plans and
section which are based on and co-ordinated with the architect’s
drawings. These drawings are capable of being issued for
construction. In cross-examination Fee said that he felt that
these drawings were ready to be issued for tender.
[85]
Bray described the rooftop parking as a moving target. Bentel
accepted the risk. The amount of work Bentel did
was very
limited, it was aborted work. The work done by Bentel was not
significant. Dealing with the five stages of
Architects’
work identified in the standard contract, Bray said stage 1 is not
buildable. At stage 3 you check whether
the work is feasible.
At stage 4 you make accurate and detailed drawings. The initial
structural layout does not complete
stage 4. The best way to do
the stage 2 work, is to do it in Stage 4. In cross-examination
drawings of the roof-top
parking and Mr Price were put to Bray.
He insisted that all drawings have to be complete to reach the end of
phase 4, all
consultants have to be co-ordinated, not just the
engineers. In order to build you need the complete drawings.
The
Bentel drawings were not complete.
(iii)
Counsel’s Contentions
[86]
Mr Gautschi relies on the finding of the quantity surveyors that
stage 4 was not reached is correct.
[87]
Mr Zidel says the stage 4 drawings for the rooftop parking were
substantially complete. The plans for the zone 1-4 rooftop
parking were abandoned once the zone 5 air rights were approved by
council. The plaintiff did the work and is entitled to
its fee.
The fact that the zone 1-4 rooftop parking was not persisted
with does not exonerate the defendants from paying
plaintiff for the
work that it did.
(iv)
Conclusion
[88]
All consultants were not co-ordinated. The plaintiff’s
drawings were not complete. The quantity surveyors
expressed
the view that plaintiff’s work only got as far as stage 3, and
for purposes of this claim that view of the quantity
surveyors must
be accepted.
(4)
EXTERIOR CLADDING – EAST FAÇADE
(i)
Experts’ Meeting
[89]
The plaintiff claims payment of the fees due to it for stages 1-4 in
respect of the exterior cladding to façades.
The
defendant was of the view that the plaintiff’s design was not
built because it exceeded the original design intent. Defendant
did
not want to proceed.
(ii)
Evidence
[90]
This is a large concrete structure facing First Avenue, on the
eastern side of the shopping centre. Abrahamsohn said
the
defendant had said that this should be the most impressive façade
in Bloemfontein. Defendant wanted tile cladding
for this
façade. Union Tiles were sourced and the fitting of the
tiles was costed. The drawing was complete
as to the stage 4,
ready for construction. Defendant did not build the façade.
The value of the work is based
on the quotation from Union
Tiles. The plaintiff’s fee should be R192 850,81.
Abrahamsohn testified that plaintiff
was instructed to complete the
drawings for a top-quality finish. There were several
possibilities, but the defendant approved
the 800x800 porcelain
tile. The tiles were sourced from Union Tiles. There is
an extract from the minutes dealing with
this matter on Plaintiff’s
Trial Bundle 1 at page 46 and pages 47/48 make reference to a mock-up
on 29 May 2007. Plaintiff’s
drawings constitute stage 4.
The tiling work on the eastern façade was never done.
[91]
Abrahamsohn relied on the minute of a design meeting held on 7 March
2007, where Abrahamsohn, Bray and Koupis and Mr Vimercati,
the
project manager, were present (Plaintiff’s Trial Bundle 4 page
584, item 1.11) which reads as follows:
“
ACTION
DATE
1.11
Façade Cladding Scheme
– For the overall scheme,
the following was confirmed: -
To
retain the 400mm offset to the concrete façade.
Proceed
with the Union scheme and modify in order to achieve the aesthetics
as originally intended under the Africon scheme.
BAI
to urgently issue the façade cladding revised
scope/specifications, in order to release this for bid purposes.
BAI
URGENT”
Abrahamsohn
said that the instruction to proceed with the drawings was given
orally by the project manager of defendant.
[92]
Abrahamsohn said that at the meeting of 26 October 2006 Koupis said
that he was prepared to throw as much money at this façade
as
is necessary. Referred to page 1073 Abrahamsohn said that the
minute indicated that the façade had been approved.
There
was no further action by anyone necessary. When it was put to
him that the minute referred to the mock-up, Abrahamsohn
said the
mock-up was incidental. The approval was to do the tiling.
Referred to the meeting of 12 June 2007 Abrahamsohn said
this was a
debate on the Western façade, which was overtaken by events.
According to Abrahamsohn the essence was that
the drawing had
been done and completed on the instruction of the defendant.
Defendant’s decision not to proceed with the
tiling does not
alter that fact. It was put that Koupis did not approve the
tiling because it was very expensive. Abrahamsohn
said that may
or may not be the case, but the work on the drawings was done to
obtain the price. Koupis might have changed
his mind and
forgotten. The drawings were done and ready for construction.
It was put to Abrahamsohn that the plaintiff
only got paid for work
that actually proceeds, as Bray says, and if the work was not
constructed, there was no fee due. Abrahamsohn
responded that
if one does work on instructions, that is fee-worthy.
Abrahamsohn denied that the cladding on the façade
should have
been a concrete finish. Exhibits 1 and 2, photographs showing
holes in the concrete slabs on the eastern façade
were handed
in to illustrate what was intended, what the contractor should have
been told to do.
[93]
Abrahamsohn said that it is the experience of plaintiff that
buildings which have off shutter concrete, do not perform well.
After a few years it becomes necessary to plaster and paint the
concrete because of discolouration. It was put to Abrahamsohn
that because the design intended by Bray was not conveyed to the
contractor, remedial alterations had to be made, and Bray made
17
drawings for an alternative. Leighton did not convey the
instruction to the contractor. Abrahamsohn said the thinking
of
the plaintiff was contrary to the use of off-shutter concrete.
[94]
Bray testified that when Koupis gave an instruction to proceed with
the costing of the façade at the meeting of 7 March
2007 it
did not mean that the work was issued for construction. Bray
said the original drawing to the council showed that
the eastern
façade would be plaster and paint. Bray said that was
not acceptable to the council (although there is
a plan on which
council approval is noted showing plaster and paint for the eastern
wall).
[95]
It was then decided to use concrete. Bray convinced Koupis to
go with concrete. This was before Abrahamsohn was
involved in
the project. Concrete would cost a lot more than plaster and
paint. Bray discussed the size of the panels
with Leighton, who
was Bentel’s job captain, and Koupis. Bray wanted to
create a concrete façade with a curved
beam at the top.
Leighton had to work with the engineer. The shuttering for the
construction of the concrete was bought
for R30 million. After
the concrete had been put up, Leighton told Bray it looked terrible.
Bray then looked at the
engineer’s drawings with Leighton.
It appeared to him that Leighton had not checked the engineer’s
drawings.
Leighton had not given the engineer specific
instructions as to how the panels had to look. Bray wanted to
correct the problem
and tried to persuade the client to remedy the
looks. He made 17 drawings of possibility to cover the
concrete.
[96]
Bray was of the view that the tiles-drawing was not billable for two
reasons:
(i)
It was not constructed
(ii)
The entire design was remedial work from the error of Bentel’s
architect. If the shuttering had been used correctly,
there
would have been no claim.
The
problem was that the construction of the concrete panels was not
co-ordinated by Leighton.
[97]
As to the exterior cladding it was put to Bray that Murray and
Roberts, the contractor, had agreed to a R1,5 million penalty
in
respect of that cladding. Bray said he was unaware that Murray
and Roberts had done that. Bray said he was probably
far more
involved in the process of the exterior cladding of the eastern
façade than anyone else was. Bray said the
fact that the
tiling of the eastern façade went on tender does not mean that
the decision had been taken to tile.
It went to tender to cost
it, and then decide whether to proceed. It was put to Bray that
the defendants gave an instruction
that the façade had to be
attractive, and Bray agreed. Bray said the 17 drawings he made
were an attempt to try to
recover a situation that had been lost.
He said because Abrahamsohn only became involved at a late stage, he
was not aware
of the situation around the concrete façade.
Bray said the façade got lost in translation in Bentel’s
office. Bray’s view was putting tiles on the façade
was remedial work, which should not be billed. Bentel
was
trying to rectify a situation it had created.
[98]
Koupis testified that the plans went in to the council in 2004, so as
to get conditional approval. Those plans had very
little
detail. They got the plans back in 2005. There were
comments from the aesthetic sub-committee. They were
not happy
with the façades. Bray came up with numerous
suggestions. Koupis’s idea was off-shutter concrete.
Koupis had the idea to put steel over the concrete plus a 300 mm pipe
with lighting to cover the concrete. For that you need
good
quality concrete. The defendant bought form work for R34
million, which would provide a very good finish. The
quality of
the concrete is quite good as it is now, but there are problems in
between the slabs, with the holes in between.
Koupis testified
that Leighton should have realised that something needed to be done
about the concrete finish, and about the aesthetical
appearance of
the concrete. Then, when the concrete was in place, Leighton
must have realised that he forgot to change the
finish of the
concrete, and Leighton wanted to correct the concrete. The
concrete façade was part of the initial budget,
but the
defendant had no additional budget for the façade.
Koupis denied that he ever approved Union tiles for finishes.
(iii)
Counsel’s Contentions
[99]
Mr Gautschi says the final cost of the works did not include the
exterior cladding to the façades as the façades
were
never built. The façades were not part of the works of
the principal contractor on which the architect’s
fees are
based. The drawings were included in the general design scope.
The drawings were to be finished so that a
quotation could be
obtained, or a mock-up staged. There was never an instruction
to proceed. The defendant believes
plaintiff is not entitled to
any fees for this work.
[100]
Mr Zidel says the only issue is whether the plaintiff reached stage
4.
(iv)
Conclusion
[101]
The additional remedial plans drawn by Bray were caused by Leighton’s
failure to co-ordinate the work. The plaintiff
is not entitled
to any fee under this heading.
(5)
ZONE 5 PARKING
(i)
Experts’ Meeting
[102]
The plaintiff claims payment of the fee due up to stage 4. The
experts agreed that the zone 5 parking garage was omitted
from the
Murray and Roberts JBCC contract and was constructed by Konti
Industries in terms of a design and supply contract as a
steel
construction. The zone 5 parking garage design by plaintiff was
a concrete structure. Originally the design contained
a tunnel
linking it underneath Kingsway to Zone 4 and its design was
characterised by a parking ramp design. The defendant
disagreed
that plaintiff achieved stage 4.
(ii)
Evidence
[103]
Abrahamsohn testified that this is the parking across Kingsway on the
grounds of the rugby union. It was designed as
a concrete
structure and intended to be part of the project and shopping centre
from the beginning. Before the parking could
be built, the air
rights issue had to be resolved. The obtaining of the air
rights caused substantial delays. There
was a lot of to- and
frowing, outside the involvement of the professional team by
defendant. Plaintiff did not have any dealings
with the
Council. Defendant appeared reluctant to allow plaintiff to
have interaction with the Council. The stage 5
architect did
the dealings with the Council. When the air rights issue was
resolved the defendant decided to exclude Murray
and Roberts and have
the parking built by Conti steel for R67 700 000. The
plaintiff’s drawings reached stage 4, and
plaintiff is entitled
to stage 4 fees and plaintiff claims R1.6 million. According to
the defendant only stages 1-3 were
reached by plaintiff and stage 4
was not done or approved. Defendant subtracts 65% and says that
plaintiff was only entitled
to R770 000. In
cross-examination Abrahamsohn said that 106-117A are speed-ramp
drawings for rooftop parking. Abrahamsohn
said the speed-ramp
design constituted a change to the original concept, page 76A showed
the original concept. It was put
that co-ordinated drawing were
not done, which Abrahamsohn responded that he could not see anything
that needed to be done for
co-ordination.
[104]
In Fee’s opinion sheets 76A-94M represent work stage 4
construction documentation and comprise general arrangement drawings,
plans, sections and elevations. These drawings were produced
for municipal approval and for construction. Sheets 94A-94M
are
the structural engineer’s drawings, predominantly issued for
constructional based upon the architect’s drawings
and
co-ordination. Fee was of the view that plaintiff was entitled
to be remunerated up to completion of stage 4 in respect
of the Zone
5 parking.
[105]
Bray testified that the zone 5 parking was built from the Bentel
plans, which were adapted so that a steel structure could
be built.
Had Bray been involved at that stage, he would have discussed the
construction of the Zone 5 parking and architect’s
fees for
that with the client. Bray said under cross-examination that
the plaintiff’s plans were utilised in the revised
steel
construction. Aspects of stage 4 had been done by the plaintiff, but
not up to the completion of stage 4. The plans omit
details of
co-ordination with consultants. A plan that is issued for council
approval is not fit for constructions. Stage 4 is
a long process;
stage 4 can take up to a year or two in the architect’s office.
As to the Zone 5 parking, Bentel went fairly
far down the road, and
Bray would say the drawings were well past 60 % complete. Stage 4 was
not billable for two reasons (1) it
was not built, and (2) the
drawing work was partially done, some elevations are shown, but the
detail required to construct is
not there for a large part. Stage 4
is not intellectual, as are stages 1, 2 and 3, but it is a technical
process. The drawings
which Bentel did on Zone 5 were capable to
issue for construction, but there was a need to supplement the
drawings.
[106]
Nel submitted the drawings at pages 86-94 on the parking to the
council. The slope is very gentle, 4%, which allows
for parking
on both sides.
(iii)
Counsel’s Contentions
[107]
In their plea defendants state that stage 4 was not reached, and that
plaintiff is only entitled to payment up to stage 3.
Mr Zidel points
out that the zone 5 parking was constructed by another contractor,
Konti Steel. The reason for this was that at
the time the zone 5 air
rights were approved, Murray and Roberts was behind on its programme.
The defendants wanted to avoid
a situation where a further
instruction to Murray and Roberts to construct the zone 5 parking
would provide Murray and Roberts
with a concurrent delay which in
turn would impact upon the defendants’ right to raise delay
penalties against Murray and
Roberts for its delays. The zone 5
parking was eventually constructed as a steel structure, but using
the plaintiff’s
drawings.
(iv)
Conclusion
[108]
The view of the quantity surveyors that plaintiff is entitled to
payment up to stage 3 must be accepted, because the parking
does not
form part of the works completed by the main contractor, and a steel
structure was constructed by another contractor.
Plaintiff is
only entitled to payment up to stage 3.
(5.3)
ZONE 5 SPEED RAMP
(i)
Experts’ Meeting
[109]
The plaintiff claims fees for stages 1-4.
Issues:
5.3.1
Who designed the speed ramps
Plaintiff
says Bentel did the design.
Defendant
says the speed ramp concept was given by NBA to Bentel. Defendant
was concerned about the possible blocking and
hold-up of vehicles and
requested NBA to design an alternative.
5.3.2
Whether plaintiff reached stage 3
The
defendant agreed that plaintiff reached stage 3.
NBA
provided design and lay-out drawings.
(ii)
Evidence
[110]
Abrahamsohn testified that the internal parking was designed on
sloping ramps. Defendant preferred a different configuration,
in
terms whereof the parking slabs would be flat with ramps at the end
of the row of parking. Plaintiff’s drawings
did not reach
stage 4, and plaintiff is only charging up to stage 3. R8
million is a nominal fee for that building work.
Plaintiff claims
R123 000. Defendant says the work was done by engineers,
and is not prepared to pay anything for this
claim. As to the
entitlement to payment for stage 4 drawings, Abrahamsohn said that
the building is there, it is standing.
It does not make sense
to say that stage 4 has not been reached. The certificate of
practical completion was issued
on 23 August 2007. Thus stage 4
was reached.
[111]
It was put to Abrahamsohn in cross-examination that the speed ramps
were part of the parking garage, which comprised on-risk
design.
Abrahamsohn insisted that the speed ramps comprise completely
revised parking drawings. Previously there had
been sloping
parking decks, now there were level slabs for parking and a ramp at
one end. That required completely new drawings.
Smaller
space had to be used. Abrahamsohn agreed that no invoice was
issued at that stage. It was a change of
design carried out as
an instruction of the defendant. It was put to Abrahamsohn that
in the Murray and Roberts contract
there is an exit clause for the
zone 5 parking at a penalty of R1.5 million. Abrahamsohn responded
that that was something between
the defendant and Murray and Roberts,
Leighton was aware of it. With reference to the printing
ledger, page 99, at 11 December
2008, the second last category, it
was put to Abrahamsohn that the elevations submitted would not have a
fraction of the detail
required for construction. Abrahamsohn
disagreed and said that the drawings submitted to the council were a
replication of
the construction drawings. Depending on the
stage when the drawings are done, the two are often the same.
Approval
was granted by the council on 2 March 2005.
[112]
In Fee’s view the inclusion of a speed ramp circulation system
emanates for an instruction by the defendant to replace
the ramped
floor circulations system which had previously been issued for
construction. Sheets 106A-117A represent the architect’s
drawings, which include specific structural information in respect of
column grid layouts and column sizes, which would have been
provided
by the structural engineer. The architect’s drawings were
issued for information and represent plans and details.
These
drawings in Fee’s opinion represent work stage 3 design
development.
[113]
On the speed ramp, Bray testified that he did a rough sketch with
Roger Gardiner. Bray designed sloping ramps.
The change
came from a sketch by Nel, which was a line drawing, which was
probably not kept. The sloping ramps were Bray’s
idea,
and that is why he believes that the plaintiff should get fees.
Bray agreed that for the speed ramps the plaintiff
was entitled to
stage 3, which is what the plaintiff is claiming.
Lamprechts
testified that the ramp protrudes beyond the erf boundary.
[114]
Nel testified that the Bentel drawings relating to the speed ramp
correspond to Nel’s sketch. Bentel marked out the
distances and
interpreted the drawings of Nel, and Bentel made further notations.
(iii)
Counsel’s Contentions
[115]
In defendants’ view the speed ramps form part of the zone 5
parking claim, and the same argument applies in respect
thereof. In
the plea, and annexure LLW 2 the allegation is made that these were
done by the engineers. Mr Gautschi
says the steel parking and
speed ramps are not part of the works, and for that reason plaintiff
is not entitled to any fees in
respect of the speed ramps.
[116]
Mr Zidel submits that there was no evidence that engineers’
drawings were used. The plaintiff produced a complete
set of
drawings with sloping ramps. There is no dispute that those
drawings represented at least stage 3
(iv)
Conclusion
[117]
This item should be treated in the same manner as item 5, the zone 5
parking. Payment up to stage 3, as allowed by the
Quantity
Surveyor should be made.
(6)
DISBURSEMENTS
(i)
Experts’ Meeting
[118]
This item was not discussed at the meeting of experts.
(ii)
Evidence
[119]
In his evidence in chief on the main claim, and also when he was
re-called later, Abrahamsohn said the vouchers have been
given to
defendant, he did not personally work with the disbursements, and he
could not say whether the amounts claimed are correct
or not. He
said the disbursements in 2008, at a time when the project was over,
were printing payments. It was put
to him that the demand for
payments goes on up to 2010, and that the claims represent litigation
costs. Abrahamsohn said
he did not know. As to claims for
office copies, Abrahamsohn said the project required the plaintiff to
make copies for own
use, and those costs are project costs which can
be claimed from the defendant as disbursements. His view was
that all the
prints made in the project are chargeable as
disbursements. He agreed that the practice in the plaintiff’s
office may
be different from the practice in other architects’
offices. Abrahamsohn was referred to a claim for travelling to
Kimberley, and he could not explain for what those costs were
incurred. In response to being referred to the letter contained
in Court File 4 page 31, paragraph 9.1.1 which states “excluding
internal usage” Abrahamsohn said it has been the practice
in
plaintiff’s company to charge such expenses as disbursements.
[120]
Practical completion of the shopping centre was certified in August
2007. In 2008 and 2009 there were further processes
to get the
plans approved by the council. Lamprechts scanned the claim for
disbursements and noticed that there were a large
number of documents
issued after completion of the centre. In his view it is highly
irregular to charge for documents which
are issued after completion.
Normally after completion an “as built” set of drawings
will be filed with the Council.
These days a soft copy in PDF
format is also provided to the client for the client’s internal
use. Hard copies of the
as built plans are given to the client
for reference in the client’s office.
(iii)
Counsel’s Contentions
[121]
Abrahamsohn testified that accounts were compiled by plaintiff’s
accounting staff. In argument Mr Zidel for the
first time
referred to the
Electronic Communications and Transactions Act 25 of
2002
,
section 15(4)
for proof of its disbursement claims. Mr
Zidel says print-outs and invoices were sent to the defendants’
attorneys.
[122]
Mr Gautschi says that defendants requested details of disbursements
in requests for further particulars but plaintiff invited
defendants
to inspect documents at plaintiff’s premises. On 18
October 2014 plaintiff’s attorneys delivered to
first
defendant’s attorneys the files with computer print-outs,
invoices and issue slips. The amounts were not added
up and the
documents were not accompanied by any explanatory indices, summaries,
notes or other narratives. Mr Gautschi points
out that in
evidence Abrahamson said he did not personally work through the
documents. He could not say whether the documents
and claims
were correct. The data messages referred by
section 15(4)
require the entries to have been made by a person in the ordinary
course of business, and certified correct by such officer. There
is
no such certification before this court.
(iv)
Conclusion
[123]
A number of claims which appear to be incorrect were highlighted by
Mr Gautschi in cross-examination. For instance,
the rental of a
car with 2 000 km in a day’s visit to Bloemfontein.
A further point raising doubt and creating
uncertainty about
plaintiff’s disbursement claim is Abrahamsohn’s assertion
that the plaintiff is entitled to claim
as disbursements the copies
of plans made for use in plaintiff’s own office. This
seems like counsel charging for an
opinion and then charging the cost
of the paper and printing of the opinion as a disbursement. A
further cause for concern
is that in the final invoice in 2008
disbursements is for some R300 000, and when summons is issued
in 2009, the next year,
after the work had already come to an end in
2007, the claim for disbursements is over R700 000.
[124]
The basic rule is that the party who alleges must prove.
Disbursements are not proved by giving copies of invoices.
Abrahamsohn had no personal knowledge of the claims. They were
processed by his staff. There must be some form of narrative
to
explain what the expense was for, what the nature of the expense was,
so that the court can determine whether it falls within
what the
plaintiff is entitled to claim. As matters stand, absolution of
the instance must be ordered in respect of the disbursements
claim.
17.
LOCUS STANDI
OF THE FIRST DEFENDANT
(i)
Plaintiff’s Contentions
[125]
Mr Zidel contends that the first defendant has no
locus
standi
to institute the counter claim against the plaintiff because
plaintiff’s contract is with the second defendant, and the
rights and obligations of second defendant have not been ceded or
delegated to first defendant.
(ii)
The Evidence
Abrahamsohn
[126]
In cross-examination of Abrahamsohn it was put that the plaintiff’s
last invoice, the one at Court Bundle 4, page 143,
D 20 asked that
payment to be made by the first defendant, the (Pty) Ltd company, and
that payment by the first defendant was accepted
by plaintiff.
It was put to Abrahamsohn that it is defendants’ case that that
action of acceptance of payment constituted
an acceptance by the
plaintiff that the first defendant was now the contracting party.
Abrahamsohn disagreed with this statement.
Abrahamsohn
testified that in May 2004 the defendant’s accounts clerk sent
a letter to the plaintiff asking that all invoices
in future be sent
to the first defendant, the (Pty) Ltd Company.
Bray
[127]
Bray testified that in virtually every job he was involved, there was
a change of the identity of the developer. It
is not unusual.
Here the developer did not initially have a separate company.
The intention is to have a separate entity,
which holds the
property. That is the (Pty) Ltd Company in this case.
Bray was aware from the beginning that a separate
entity would be
created to own and manage the Loch Logan. It was a matter of
course in the process. Bray and his colleagues
at Bentel had no
objection to the taking-over by the new entity. They knew the
bank would lend the money to the (Pty) Ltd,
and were happy with that
arrangement.
Koupis
[128]
As to the creation of the (Pty) Ltd Company, the second defendant,
Koupis said that it happens in 90% of their developments
that a
separate entity is created to ring-fence the risk. The main
contractor, Murray and Roberts, did not want to accept
the new
entity, because they would then have to get new guarantees, and
agreed with the Georgious that Murray and Roberts and their
sub-contractors would continue to hold the Trust liable, and not
invoice the new company.
M
Georgiou
[129]
Mr M Georgiou is the sole director of the first defendant. The
sole shareholder of the first defendant is the Michael
Georgiou
Family Trust, of which Mr M Georgiou is a trustee. He testified
that this development was started by the N Georgiou
Trust, the second
defendant. This development was started by Mr M Georiou’s
father, Nick Georgiou, who was a trustee
of the second defendant.
Asked whether this was a successful shopping centre, Mr M
Georgiou replied “very successful”,
he said he owns the
property and that the property could be more successful.
[130]
In 2006 the parties transferred the property from the second
defendant to the first defendant as a going concern. The
parties are the N Georgiou Trust and Basfour 3213 (Pty) Ltd, as shelf
company which later changed its name to Loch Logan Waterfront
(Pty)
Ltd (page 45). The deed of sale recorded that the property was
sold as a going concern (clause 11.2.1).
[131]
According to Mr Georgiou the intention of the parties was that
nothing was to be excluded, all the contracts came across to
the
first defendant, save for the contract with Murray and Roberts, the
principal contractor. The contract was implemented,
and the
first defendant paid all the accounts.
[132]
The parties recorded in clause 11.4.1:
“
11.4.1
It is recorded that it is the intent and purpose of the parties that
the Purchaser should be enabled to continue the rental
enterprise
conducted from the Property as far as possible in the same manner as
it was conducted by the Seller up to the date of
transfer and that to
that end the Purchaser shall be substituted for the Seller in respect
of each of the contracts in respect
of the said rental enterprise
insofar as the terms of such contracts individually allow. It
is specifically agreed that,
as far as it may be necessary, the
Seller shall enter into such Agreements as may be necessary to assign
its rights and obligations
(but does not warrant the other party will
consent to the delegation) in terms of the contracts referred to
above to the Purchaser.”
Mr
M Georgiou testified that the intention in clause 11 was that VAT had
to be zero rated.
[133]
In cross examination Mr M Georgiou said he was not a signatory to the
deed of sale. He got his father Nick to sign the
contract on
his behalf. An attorney prepared the deed of sale. The
rights and obligations of the parties are set out
in the agreement as
the attorney was instructed. If the parties had intended other
terms to be contained in the agreement,
those would have been put in.
He agreed with the “whole agreement” clause and the
“variation” clauses:
“
14.
Whole agreement
This
agreement constitutes the whole Agreement between the parties as to
the subject matter hereof and no Agreements, representations
or
warranties between the parties regarding the subject matter hereof
other than those set out herein, are binding on the parties.
15.
Variation
No
addition to or variation, consensual cancellation or novation of this
Agreement and no waiver of any right arising from this
Agreement or
its breach or termination, shall be of any force or effect unless
reduced to writing and signed by all the parties
or their duly
authorised representatives.”
[134]
Mr M Georgiou confirmed that there has not been any written variation
of the agreement. He agreed with clause 9.2.1
of the agreement
dealing with warranties:
“
9.2
The seller warrants as at the date of signature of this agreement and
on the Transfer Date that:
9.2.1
save as disclosed in the title deed relating to the Property, there
are and will be no material agreements in respect of the
Property to
which the Purchaser will become bound on obtaining transfer of the
Property;”
[135]
In response to the question that there would be lease agreements with
tenants Mr M Georgiou said that the property was sold
as a going
concern, with specific reference to the liability for VAT. He
said that clause 11 was purely for VAT purposes,
dealing with all the
contracts attached to the property, it was not limited to leases. He
agreed that clause 11.4.1 states
that there is no warranty that the
other party will consent to the delegation, and that the contract
refers to all agreements attached
to the word “going concern”.
He agreed that this is the entire contract.
[136]
In re-examination Mr M Georgiou was asked about the position with
Murray and Roberts. They wanted to continue dealing
with the
trust, not the first defendant company. It appeared that Murray
and Roberts had guarantees in place, and it would
cost them money to
get those guarantees re-issued for purposes of the first defendant
company. Mr M Georgiou made arrangements
with Murray and
Roberts that they would continue dealing with the trust, they kept on
sending their invoices to the trust, the
trust paid them and the
trust then debited the first defendant company.
(iii)
Counsel’s Contentions
[137]
Mr Zidel for plaintiff contended that the first defendant does not
have
locus
standi
.
The first defendant’s counterclaim against the plaintiff
is based upon the agreement concluded between the plaintiff
and the
trust (the second defendant) which agreement was then, on the first
defendant’s version “taken over”
by the first
defendant. Mr Zidel argues that the pleadings do not make out a
case for privity of contract between the plaintiff
and the first
defendant. The contract between the plaintiff and the trust
contains both rights and obligations on the part
of both parties. As
such it could not be ceded by the trust without the consent of the
plaintiff (
Hersch
v Nel
1948 (3) SA 686
(A) at 698). A contractual obligation cannot be
taken over unless the creditor consents thereto and agrees to accept
the
third person as the debtor in substitution for the original
debtor (
Froman
v Robertson
1971 (1) SA 115
(A)). In evidence Koupis and Michael Georgiou
insisted that the agreement of sale was the only agreement relied
upon by the
first defendant for purposes of the transfer of rights
and obligations from the trust to the first defendant. The
plaintiff
is not a party to that agreement.
[138]
Mr Zidel refers to clause 4.6 in the client/architect agreement which
states that neither party shall assign, sublet or transfer
its
interest in this agreement without the written consent of the other
which consent shall not unreasonably be withheld.
Mr Zidel says
the allegation in defendants’ plea in paragraph 4.2 that “the
defendant took over all the rights and
obligations from the second
defendants including the rights and obligations towards the
plaintiff” is a conclusion of law
without a basis in fact. Mr
Zidel says the allegation in defendants’ further particulars
that the fist defendant would
be liable to plaintiff for payment in
the event of judgment being granted in favour of plaintiff does not
mean that it is not in
dispute that the parties to the counterclaim
are the plaintiff and first defendant.
[139]
Mr Zidel says the first defendant makes no allegation that the
agreement between the trust and the plaintiff has been varied
or
ceded to the first defendant. Thus, Mr Zidel says, no triable
issue arises on the pleadings. A party relying on
a cession
must allege and prove the contract of cession (
Lief
NO v Dettmann
1964 (2) SA 252
(A)). The first defendant has not pleaded any
delegation, and that is not its case before court. The
defendants also
pleaded no waiver. The alleged “taking
over” of the rights could only be established if there had been
a delegation,
which is a form of novation, but this is not pleaded by
the defendants. The creditor has to agree to accept the new
debtor
in the place of the old (
Van
Achterberg v Walters
1950 (3) SA 734
(T) at 745E).
[140]
Even apart from the lack of the necessary allegations in the
pleadings, plaintiff contends that the first defendant has not
established its
locus
standi
.
Mr Zidel refers to clause 9.2 of the sale agreement between the
first and second defendants wherein the parties record that
there are
no material agreement in the property in respect whereof the
purchaser of the property will become bound. No reference
is
made to the agreement between the trust and the plaintiff in the sale
agreement. Further clause 11.4.1 is restricted to
lease
agreements. The only agreements that would be delivered to the
first defendant in terms of the sale agreement were
the lease
agreements (clause 12.1.1).
[141]
Mr Zidel says the expression “going concern” used in the
sale agreement is a term of art specific to VAT and
section 197
of
the
Labour Relations Act 66 of 1995
and does not encompass a transfer
of the trust’s contracts with the plaintiff.
[142]
Plaintiff contends that the contemporaneous documents and evidence do
not support the first defendant. The sale agreement
was
concluded on 20 October 2005, effective from 1 December 2005. On
16 February 2006 Lorenzo Vimercati of SIP informed Leighton
that “NGT
has requested that all original VAT invoices applicable to all fees
AND/OR invoices to date are to be addressed
and couriered to …
N GEORGIOU TRUST”. On 10 March 2006 Nicky Botha, the
creditors clerk for the first defendant,
informed Thelma Hadjigeorgi
that “this property was transferred to Loch Logan Waterfront
(Pty) Ltd on 1 December 2005”
and that fees from December need
to be invoiced to that company. On 30 March 2006 Vimercati
informed Leighton that there
were new invoicing details for the
project, being those of the first defendant.
[143]
Mr Zidel stresses the fact that the letter amending the contract
between the plaintiff and the trust (Annexure “D”
to the
particulars of claim) is dated 19 April 2006, being a date after the
transfer of the property to the first defendant, and
after the
request to invoice the company, not the trust. Mr Zidel refers
to the minutes of a site meeting on 25 April 2006
where it is
recorded that for contractual reasons the client is to remain as the
N Geogiou Trust. (It is however important
to bear in mind that
the main contractor, Murray and Roberts, requested to remain
contracted to the trust because if a new entity
was now the client,
Murray and Roberts would have to obtain new guarantees, which would
have a cost and effort implication.)
[144]
The last point made by Mr Zidel to illustrate the lack of
locus
standi
of the first defendant is the fact that the first defendant has
failed to point to any document that satisfies the requirements
of
clause 4.6 of the client-architect agreement which prohibits a change
of status of the parties unless there has been written
consent by the
other party. There was no transfer agreement. There was not
even a whisper, Mr Zidel says, that the agreement
with the trust was
terminated, and unless that agreement was terminated here could be no
new agreement. Mr Zidel makes the
point that under the main
contract between Murray and Roberts and the plaintiff, plaintiff was
appointed as agent for architectural
works.
[145]
It is not in dispute that for Murray and Roberts the contracting
party remained the trust, the second defendant. That
was so
because Murray and Roberts did not want to obtain new guarantees. Mr
Zidel says it is untenable to have different employers
for the same
contract.
[146]
The first defendant’s contentions of its
locus standi
are as follows:
1.
Mr Gautschi submitted that the words “going concern”
should be understood by looking at the substance and not the
form of
the transaction (
Aviation
Union of South Africa and Another v South African Airways (Pty) Ltd
and Others
2012 (1) SA 321
(CC) par [49]). In his view if a party takes
over a going concern it would be entitled to continue with any
operations which
were in progress at the time of the sale for its
account (
General
Motors SA (Pty) Ltd v Besta Auto Component Manufacturing (Pty) Ltd
and Another
1982 (2) SA 653
(SE) at 657H-658A).
2.
The plaintiff sent a letter of demand in terms of section 345 of the
Companies Act 61 of 1973 addressed to the first defendant
on 16
September 2008 claiming R6 133 136,89. First
defendant’s attorney replied in a letter dated 14 October
2008.
First defendant did not allege that it was the wrong party due
to alleged lack of
locus
standi
.
Plaintiff did not proceed with its threats to liquidate the
company. On 11 May plaintiff caused summons to be issued
against the first defendant and the second defendant, annexing to its
summons an invoice dated 31 May 2008 issued by the plaintiff
to the
first defendant as annexure “E”. Annexure “E”
has been replaced by plaintiff with an invoice
dated 31 May 2008,
which invoice refers to a letter dated 19 April 2006 which is
annexure “D” to the particulars of
claim, thus linking
the first defendant as the party to the contract contained in the 19
April 2006 letter.
3.
In evidence Koupis said that he discussed and explained the transfer
of the rights and obligations of the second defendant to
the first
defendant with the representatives of the plaintiff namely Leighton
and Roger Gardiner. They had no objections
or reservations
pertaining to the transfer. Neither testified. On 17
February 2006 the project manager SIP was requested
by a certain
Androula to ensure that notice goes out to everybody informing them
that all invoices are issued in the name of Loch
Logan Waterfront
(Pty) Ltd. After the change of ownership plaintiff submitted
tax invoices for professional services rendered,
by it, to the first
defendant. These invoices appear in defendant’s trial
bundle 13 pages 49-65, addressed to the Loch
Logan Waterfront (Pty)
Ltd. Mr Gautschi points out that in terms of section 20(1) of
the VAT Act 89 of 1991 the first defendant
was the recipient of the
services, and that plaintiff claimed VAT on amounts due since
September 2005.
4.
Mr Gautschi submits that the court should endeavour to ascertain the
true intention of the parties when the letters contained
in annexures
“A” to “D” attached to the particulars of
claim were written. He refers to
Absa
Bank Ltd v Swanepoel NO
2004 (6) SA 178
(SCA) paras [7] and [8] where it was said that in
reading a commercial document the court does not require such
precision of language
as one would expect in a more formal document
such as a pleading drafted by counsel. Inelegance and loose language
can be expected
in a commercial document purporting to be a contract.
Business persons often record important agreements in a crude
fashion.
The provisions of such letters drafted by business
persons must “be construed with an eye to the evident
commercial
realities” (
Delfante
and Another v Delta Electrical Industries Ltd and Another
1992 (2) SA 221
(C) at 230). The letters must be interpreted
within the context and background at the time (
Absa
(supra)).
5.
Mr Gautschi says the plaintiff is approbating and reprobating. It
sent the notice under section 345 of the Companies Act to the
first
defendant, it alleged in the particulars of claim that the first
defendant, alternatively the second defendant was liable.
Plaintiff
sent invoices to the first defendant over a long period of time. Now
the plaintiff, faced with the counterclaim,
is reprobating and
contending that the first defendant does not have
locus
standi
.
This the plaintiff cannot do (
Telcordia
Technologies Inc v Telkom SA Ltd
[2006] ZASCA 112
;
2007 (3) SA 266
(SCA) par [12]). He contends that the plaintiff
is
mala
fide
in relying on the alleged lack of
locus
standi
of
the first respondent.
Conclusion
on
locus standi
[147]
The plaintiff and the trust had an oral agreement. That is what
the plaintiff alleges and the defendants admit in the
pleadings.
There could be variations. The evidence shows that the
parties accepted variations. Plaintiff was
willing to send its
invoices to the first defendant, as well as its letter of demand
under section 345 of the Companies Act. With
reference to
Clause 4.6 of the client-architect agreement which states that a new
party cannot be allowed save with written consent,
the invoices must
be seen as written consent. In the light of the undisputed
evidence of Koupis that in 90% of shopping centre
developments a new
entity is created to ring-fence the project, it can be accepted that
the first defendant took over the project.
Nevertheless it
remains strange that there are two employers for the same project –
one for Murray and Roberts (the
company) and the other for the
plaintiff and other agents working on the project (the trust).
Strictly speaking there should
have been a formal cession, and
it should have been pleaded, but it is clear that by its conduct the
plaintiff accepted the first
defendant as the contracting party.
18.
COUNTER CLAIM
ITEM
1, 2 AND 4 - EXPANSION JOINTS NOT SHOWN:
ZONE
6 TOILETS
(i)
Experts’ Meeting
[148]
This claim is formulated as follows in the minute of the meeting of
experts:
“
No
expansion joints indicated to Zone 6 toilets: because these were not
indicated on the architect’s drawings, the contractor
did not
install the Migua joint covers as specified for the other expansion
joints in the building (A migua joint is a flexible
cover that tis
installed over the expansion joint).
”
And:
“
No
ceiling expansion joints to entrances 7 & 14 which are cracking.
It is worth noting (applicable to items 2, 4 &
4(sic)) that a
ceiling expansion joint must be fitted underneath every slab
expansion joint above, as designed by the engineer,
were not
respected by the architect.
”
(ii)
Evidence
[149]
In his expert report Fee states that the repairs done to the
expansion joints in the floor and up the wall in the zone 6 toilets
appeared to him to be effective. As far as the ceiling joints
appeared to have hairline cracks, in Fee’s opinion these
were
readily repairable in the course of normal maintenance. Regarding
the ceiling expansion joints, Fee states in his report
that he
inspected all entrances and no evidence of cracking was identified.
[150]
In cross-examination it was put to Fee that the expansion joints
should have been shown on the drawings. Fee said that
it was
sufficient that the expansion joints be shown on the general plan.
[151]
Bray said that the architect’s drawings should have shown the
expansion joints. He referred to one plan where
Nel, the local
architect, had super-imposed the expansion joints onto the plan.
None of the Bentel drawings shows the expansion
joints. The
contractor does not know where the joint must be put, also in the
ceilings. Leighton did not check the
engineer’s drawings
and instruct the contractor accordingly. Bray was referred to
the expansion joints which were not
indicated on the plans, in the
Zone 6 toilets. It was put that the expansion joints were shown
on the General Arrangement
plan, which Bray could not deny. It
was put that there was a general specification for Migua joints.
Bray confirmed
that Migua is very expensive. His complaint was
that there was a failure to give details and explain to the
contractor what
to do. Bray was referred to the General Notes
appearing on the top right-hand corner of all plans, where paragraphs
5 and
7 make it clear that if there is an error or omission the
contractor should report to the architects. It was further put
that the stage 5 architect should have inspected the work in
progress, to which Bray responded that the stage 5 architect is not
supposed to supervise, and it is dark and difficult to see during
construction. Bray stressed that it is important for the
detail
as to expansion joints to be shown on the drawings. The
responsibility of the stage 5 architect is to inspect and
to see that
the work done is in accordance with the drawings. Bray could
not advance the claims in item 2, the ceiling expansion
joint, and
knew no more than he had seen during the inspection in loco. On
item 4 Bray could only say that if there is a
joint in the concrete
floor, you need a joint in the ceiling. He had no personal
knowledge of his item.
[152]
According to Koupis in Zone 6 the expansion joints were put in the
wrong place because they were not indicated on the plans.
The
expansion joints go through the vanity slabs.
[153]
Lamprechts testified that a general note on an architect’s plan
is not sufficient. Every instruction of an architect
needs to
be conveyed in drawings. Architects do not write, they draw.
The architect cannot put an onus on the contractor
to ask him in the
case of uncertainty, the instructions must be in the drawings.
Expansion joints must be shown on the architect’s
drawings.
Because the expansion joints were not shown on the drawings, the
expansion joints in zone 6 went through the vanity
slab in the
cloakrooms. Because the expansion joints were not shown on the
plan, they were placed in the incorrect places,
namely through a
vanity slab, which will result in failure.
Lamprechts
did not want to concede that the expansion joints were visible.
He said it might have been dark, and obscured by
scaffolding.
He said the expansion joints might not have been visible. He
agreed that where the expansion joints went
through the toilet area
and under a door and through a vanity slab, everything was functional
now, having been repaired.
[154]
Asked whether the contractor could have seen where provision was made
for expansion joints, Van Rensburg said he focussed
on the finishes,
he did not specifically look at the structure. The expansion
joints did not line up.
[155]
In answer to the statement in cross-examination that the general
plans showed the expansion joints, but the specific plans
did not,
and that NBA studio did not point this out, Nel responded that the
expansion joint in the Zone 6 toilets where the expansion
joint is
incorrectly situated, was not shown or incorrectly shown on the
plans. Nel said NBA studio did not have a design responsibility,
only
an inspection responsibility. NBA studio architects did not point out
the incorrect expansion joint to the contractor.
(iii)
Counsel’s Contentions
[156]
The defendants contend that the drawings that plaintiff says contain
the expansion joints are general layout drawings of the
first floor
only. Defendants also say the general layout drawing shows two
expansion joints without referencing whether they
are floor or
ceiling expansion joints. Mr Zidel says failure to specify the
expansion drawings on the detail drawings is
not actionable because
the expansion joints are shown on the general plan. Plaintiff
further points out that this is also
an omission by the contractor
and the work stage 5 expecting architects. Mr Zidel says
defendants presented no evidence of
Item 2 and 4 - Expansion joints
in Zone 6 toilet and entrances 7 and 14. No case has been made
out by defendants. At
the inspection in loco no problems
reading the ceiling expansion joints were pointed out.
(iv)
Conclusion
[157]
The plaintiff cannot be held liable for the failure to specify the
expansion joints in the specific plans. There is
sufficient
information on the general plan. The stage 5 architects or the
project managers could have seen it. Whatever
fault there was
has been satisfactorily attended to. There is no basis to hold
plaintiff liable under items 1, 2 and 4.
ITEM
5 - THE WOOLWORTHS OFF-LOADING AREA
(i)
Experts’ Meeting
[158]
This claim is formulated as follows in the minute of the meeting of
experts:
“
Design
problem with Woolworths off-loading area: cannot accommodate the
trucks inside the loading bas, and the loading bays must
be made
wider and deeper. The client also had the cost of widening the
road to introduce an extra lane because of insufficient
turning
radius.
”
(ii)
Evidence
[159]
On 13 August 2013 when Fee did his inspection this area had two large
trucks occupying this area. The trucks appeared to be
quite
comfortably located. Recently Fee saw a very large articulated
truck emerging easily with a trailer from the off-loading
area
without difficulty. In cross-examination Fee could not say how
big the trucks were. Fee said that compared to
the off-loading
areas at other shopping malls the Woolworths off-loading area at the
Loch Logan Shopping Mall seemed a reasonable
and natural operation.
In cross-examination Fee said that often the parameters for the
design are set by other issues.
[160]
Bray had a lot to say about the Woolworths off-loading area.
The main point he made was that the angle at which the
trucks had to
turn into and out of the parking areas, is too acute. The
right-hand parking bay cannot be used because of
the acute angle.
Bray explained that the way this works, is that the architect would
give the plans for the off-loading area
to the traffic consultant, or
traffic engineer, who then applies the turning circle of the truck to
the drawing. The traffic
consultant will then give feedback to
the architect. Bray’s view was in this case the wall on
the right-hand side had
to be moved at the construction stage, so as
to be able to give a wider turning circle to the trucks. Bray
said the Woolworths
architects deal only with the inside of
Woolworths. Yet the drawing of the Woolworths architects R &
L were put to Bray,
on which the off-loading area is indicated.
Bray said that the plan only dealt with the internal area, not the
exit onto
the road. The external traffic circulation is a
co-ordination function of the traffic engineer. Bray agreed
that VBP
were the traffic engineers, and apparently the council
required a flagman to be on duty to assist when trucks were parking
or coming
out. Bray said he did not know whose fault this
problem with the truck turning circle was. His view was that
Bentel
should be liable only for 50% of the damage under this
heading.
[161]
Koupis testified that from the first drawing by the Woolworths
architects R & L it appeared that there was a problem with
the
off-loading area, superimposed over the Bentel drawing.
Leighton should have been alerted. Leighton ignored the
warning
from the Woolworths architects. The trucks driving in, tilt
against the wall. It was a new area. Leighton
did not
tell the engineer to move the column. Two buildings in that
area were demolished, the Jazz Time Cafe and the OFM
Radio offices.
That meant that the architects had the freedom to put the off-loading
area in the best place. Woolworths
makes frequent deliveries.
The Woolworths sales are based on the freshness of their products.
Now only one truck can
get into the Woolworths off-loading area.
What needed to be done is that a new column should have been erected.
[162]
According to Lamprechts the duty of traffic co-ordination in not on
the traffic engineer. The architect is responsible
for design
and co-ordination. There are consultants involved, but the
responsibility for traffic movement is on the architect.
Lamprechts said the question arises why the architects got it wrong.
The architect starts with a blank page. At the
Woolworths
off-loading area there were many alternatives. The architect
should have consulted other consultants. The
architects had
been warned that the drawings did not comply, yet they failed to get
the drawings right. The drawings were
eventually approved by
the council with two medium-sized trucks in the off-loading area.
The architect had all the freedom
to make a correct design at the
outset, but failed to use the freedom properly. There was a
difference in levels, of which
the architects knew. It is
inexcusable that the architects did not design the off-loading area
correctly.
[163]
Lamprechts testified that large trucks are understood to be a 18½
metre and a 12½ truck. A medium sized
truck is 9
metres. In order to park in the off-loading bay, a large truck
will have to cross two lanes of traffic, possibly
also the median of
the road, and in that manner completely block off the road. The
effect of the design of the Woolworth
ramp is that it is almost
impossible to get a second truck into the off-loading zone. The
tenant uses the off loading bay
only for one truck. Lamprechts
agreed that Woolworths opened in 2007, and in 2012 doubled their size
by taking up the floor
above their store. Lamprechts could not
comment on the fact that Fee had seen two trucks in the off-loading
area. It
was not clear what size these two trucks were which
Fee had seen. It was put to Lamprechts that the final proposal
for correction
of the problem with the off-loading trucks was
contained on the plan at page 86. His response was that the
Municipality approved
the area for two medium sized trucks, and the
owner had to indemnify the municipality against damage caused by
trucks using the
bays, and that the municipality required a pointsman
to be on duty when trucks moved in. Lamprechts repeated his
view that
the architect could have changed the angle of trucks to
enter the off-loading bays.
[164]
In response to the statement in cross-examination that the traffic
engineers were responsible for ingress and egress of the
parking
area, Nel disagreed and said that the traffic engineer is not
responsible for design. There should have been consultation
between
plaintiff and BKS engineers. In response to the statement that the
traffic engineers were consultants of the defendant,
not the
plaintiff, Nel responded that the traffic engineers were not
responsible for design. Traffic engineers prepare no plans,
they only
do diagrammatical drawings. The traffic engineer checks turning
circles of trucks where needed. Nel agreed that the area
of the
Woolworths off-loading area was a constrained and difficult terrain.
He did not respond to the statement that the off-loading
area has
been functional for seven years.
(iii)
Counsel’s Contentions
[165]
Defendants say that on completion of the project it was discovered
that only one large truck could be accommodated into this
bay and
would cause major traffic delays and standstills on Kingsway.
Defendants say Leighton was negligent in failing to
comply with
his co-ordination function in obtaining the necessary input from the
traffic engineer. Mr Zidel points out that
the site is highly
constrained with limited spaces for trucking considering the high
gross lettable area achieved with the design.
Any changes in
design would have led to structural difficulties during the
fast-track project. The structural engineers
indicated where
the pillars had to be. The shopping centre is rounded at the
top part where the shops are, but square on
the ground where the
off-loading bay is.
(iv)
Conclusion
[166]
The evidence demonstrated that the off-loading bay is fully
functional and meets the requirements of Woolworths to the extent
that Woolworths have substantially expanded their premises thus their
delivery requirements. There is no evidence of dissatisfaction
of Woolworths. The off-loading bay has functioned for seven
years. There is no merit in defendants’ contentions.
ITEM
6 - TRAFFIC CIRCULATION
(i)
Experts’ Meeting
[167]
This claim is formulated as follows in the minute of the meeting of
experts:
“
10.11
In parking areas it is an accepted fact that cars have to cross
driving lanes in order to turn into and out of parking spaces.
This will affect traffic momentarily but not adversely.
”
And:
“
11.12
Plaintiff prepared drawings for a 2-lane ramp to be constructed from
the Lower Ground level up to Mezzanine 1 level, in accordance
with
the traffic impact study stipulations. These drawings were
issued for construction and the ramp was constructed early
in 2006 in
accordance with the drawings.
”
(ii)
Evidence
[168]
Fee found the roadway widths to be normal for parking associated with
shopping centres, where there is low speed circulation
and some
overlap of lanes can be tolerated. The traffic circulation
observed by Fee in and out of the mall did not seem to
be an
inordinately complex situation. It was in line with the process
seen at other shopping malls. Fee said that shoppers
in malls are
creatures of habit and most of them find their way in the traffic on
all days of the week. Fee conceded that
it is unusual for an
architect to design a ramp that protrudes on to council property. He
did not concede that such design
is negligent, but said such design
could be due to an oversight.
[169]
Bray testified that the road where vehicles have to turn at the
bottom is not wide enough, and they encroach on to the other
side
which cause traffic blockage.
[170]
Koupis testified that the architect’s initial ramp design
encroached upon the council property. The gradient had
to be no
more than 1:8. Leighton went to the council, and after he had
been there Koupis got a call from Marcel van der Walt
at the council
who told him that the people at the council were unhappy.
Koupis then said that Dries Nel would handle the
plans. Dries
Nel then went to the council and dealt with the matter.
[171]
Lamprechts testified that when an architect commences work on a
shopping centre, the point of departure is the parking.
It is
essential that there be sufficient parking, and that the area for
parking be optimally utilised. At the Loch Logan
Waterfront
there are many spaces in the parking area which are not used
maximally. The general ratio is that there can be
30 square
metres of shopping space per parking bay. At Loch Logan the
ratio is much higher. Many spaces are too small
to accommodate
a parking bay, and those spaces have to be replaced with other
parking bays. Today the cost per parking bay
is about R80 000.
[172]
As to the ramps Lamprechts said that the situation is very simple.
The architect’s design exceeded the erf boundaries.
That
can never be permitted. All the problems were caused by
incorrect design. The traffic department at the council
is very
strict. The gradient must not be more than 10 degrees, but in
this case the original design of the architect did
exceed that 10
degrees. The blending of the slope must be into the road, and
from 5 metres inside the boundary, the road
needs to be level.
The Plaintiff’s drawings did not comply with the requirements.
The council got fed up with
the whole situation.
It
was put to Lamprechts that as in all shopping centres, one has slow
moving traffic underground. Lamprechts insisted that
the change
of the ramp caused congestion. He said he could personally
testify to the fact that when there are sports meetings,
traffic at
that point is absolute chaos. In re-examination he said the
problem also existed on Saturday mornings.
[173]
Nel spent a great deal of time explaining the traffic circulation in
the parking garage. The plans were put up on a screen
in court and he
indicated what he was talking about with a laser pen. His evidence
was difficult to follow. Traffic became congested
because of the
absence of an exit from the lower ground floor. On the A3 size plans,
plan C6, in the middle, illustrates the conflict
point, where the
traffic forms a bottle neck. C 7 shows the basis of the suggestion
made by Nel to alleviate the problem.
[174]
In cross-examination it was put to Nel that all vehicles executed the
turn at the congestion point without difficulty, to
which Nel
responded that small sedan cars could do that, not a typical Free
State bakkie. In peak-times there was traffic congestion.
Nel’s
suggested solution to the congestion is to create a double exit ramp
from lower ground. This is in line with the analysis
of traffic
engineers. There are also other possibilities. Nel made this proposal
so that a person looking at the plan can understand
the problem and
proposed solution, he stressed that he is not a traffic engineer.
When it was put to him that there is congestion
at all shopping
centres, Nel said that shoppers in Bloemfontein are spoilt.
(iii)
Counsel’s Contentions
[175]
Defendants say a bottle neck is created and exiting traffic crosses
over the median line, and the cars moving in opposite
directions have
to wait for each other. Plaintiff says the road widths are
normal for parking associated with shopping centres.
There is
low speed circulation. Congestion during peak shopping hours is
normal for a busy shopping centre.
(iv)
Conclusion
[176]
As Fee explained, slow moving traffic encroaching on on-coming
traffic, is normal in a shopping complex. There is no
merit in
defendants’ allegations. As Abrahamsohn said, the
solution now suggested by Nel could have been constructed
at the
time, but the defendant was satisfied with the situation as it was
constructed then.
ITEM
7 - ABANDONMENT OF VEHICLE RAMP
(i)
Experts’ Meeting
[177]
This claim is formulated as follows in the minute of the meeting of
experts:
“
Abandonment
of vehicle ramp from Lower ground level to Kingsway (ramp was
constructed but would not be approved by Local Council,
ramp design
parameters not followed). Ramp had to be filled it (SIC) and is
now used to exit from M1 level to exit and caused
the unnecessary
additional cost of reconstructing a suitable vehicle ramp according
to a different design a breakdown of which
cost appears in annexure
“LLW3a”.
”
[178]
The parties agreed that the vehicle ramp from the lower ground level
to Kingsway was abandoned. On the issue as to what
the reasons
for the abandonment were, the plaintiff said this is a matter for
evidence, and the defendant said the ramp did not
comply.
(ii)
Evidence
[179]
Bray testified that the problem with the traffic congestion occurs
because the ramps which were initially designed to give
access to
vehicles from the lower level were closed up because the ramp
encroached on to municipal property. The ramps could
not be
re-designed. Bray thought that the problem here was that the
traffic engineer was incompetent or irresponsible, or
that the
traffic engineer was not consulted. Bray was of the view that
the architect caused the problem.
[180]
In respect of the basement exits that have to go up to ground level,
Lamprechts said that the congestion is so bad that most
shoppers exit
the centre at the North, at the Kloppers area, that is the most
convenient to them. Lamprechts did not want
to agree that the
parking area was functioning perfectly.
[181]
Because there had originally been intended to be two lanes of traffic
from lower ground to the street, and those ramps had
to be blocked up
because the ramp protruded on to municipal property, there was now
traffic congestion, because those two lanes
from lower ground now
also come to the mezzanine level 1 and are then bottlenecked into one
lane, before spreading into three lanes
to exit on to Kingsway. Nel
proposed an alternative design which forms the subject matter of the
claim in item 7. The A3
size plans illustrate his evidence. Plan C3
shows all three exist coming from mezzanine level 1, because the ramp
had not been
approved.
(iii)
Counsel’s Contentions
[182]
Defendant’s case is that the vehicle ramp was abandoned because
it was not approved by the council because the ramp
protruded onto
council property. Plaintiff points out that it was defendant’s
decision to change the entrance configuration.
(iv)
Conclusion
[183]
The entrance and exit of the shopping mall has functioned in its
present form since opening of the centre more than seven
years ago.
There is adequate access in an out of the shopping centre.
Abrahamsohn pointed out in his evidence that
the solution now
proposed by Dries Nel could have been built at the time, but the
defendant was content to have the parking configured
as it is now.
There is no merit in this claim.
ITEM
8 - STAIR 9 (FIRE ESCAPE) DESIGN PROBLEMS
(i)
Experts’ Meeting
[184]
Nothing was said about this item at the experts’ meeting.
(ii)
Evidence
[185]
Fee in his report expressed the opinion that the design changes were
necessitated by the actions of the defendant arising
from the
construction of the steel structure spanning Kingsway in respect
whereof plaintiff was not involved. In cross-examination
it was
put that Leighton did not take the street level into account in his
design. Fee said that this was a fast track project,
and in the
heat of the battle in the trenches sometimes someone gets it wrong.
[186]
Lamprechts expressed the view that here the architects failed in
performing their co-ordination function with the engineers.
If
the architects had consulted the engineering drawings the architects
would have seen the beam.
(iii)
Counsel’s Contentions
[187]
Staircase 9 (a fire escape) is located on the corner of Kingsway and
First Avenue and is a fire escape for the zone 4
area, serving
all levels. On the staircase as originally designed by
plaintiff there was insufficient space for an exit to
Kingsway, and
an escape passage then had to be made on the eastern side.
This resulted in a late revision of the glass
façade
drawings. By the time the glass sub-contractor installed the
glass, the scaffolding had been removed, and defendant
had to incur
cost to supply additional scaffolding. Plaintiff says the delay
in erecting the glazing of the staircase was
caused by defendants.
(iv)
Conclusion
[188]
No evidence was led in support of the claim that the defendants did
in fact incur additional cost in respect of scaffolding.
There
is no merit in this claim.
ITEM
9 – PICK ‘N PAY INTERNAL STAIRCASE
(i)
Experts’ Meeting
[189]
This item was described as follows in the meeting of experts:
“
Pick
‘n Pay internal staircase designed by Bentel was rejected by
Pick ‘n Pay, and another staircase had to be constructed.”
(ii)
Evidence
[190]
In his expert report Fee says that he is satisfied that the need to
replace the staircase was as a result of the contractor
proceeding
with the fabrication of the staircase without the submission of shop
drawings for the approval of plaintiff. In
cross-examination
Fee said the solution of the problem of the sub-contractor making a
staircase that was condemned depended on
the stage of the project at
that time. In his view Pick ‘n Pay did not care whether
it was a concrete or steel staircase,
because it was going to be
cladded with tiles. This was also what Abrahamsohn said.
The liability for the construction
of the defective staircase lies
with the contractor. The staircase was needed urgently, and the
contractor must bear the
cost. In the circumstances of the stage of
the project, the architect decided not to have the steel staircase
re-built, but to
rather construct a concrete staircase. It was
put to him that in such case the architect had to obtain a variation
order
(V0) from the client, but Fee said he had no knowledge of
that. Fee said that the quantity surveyor should have been
brought
in to cost the work when the steel staircase was condemned.
[191]
Lamprechts found this situation difficult to understand. If the
Pick & Pay specification was that a steel staircase
had to be
built, the architects had to do that. A sub-contractor was
instructed to build the steel staircase, but did a poor
job. In
such case the architect must instruct the sub-contractor to re-do the
work. If the tenant, Pick ‘n Pay
wanted a steel
staircase, the architect had to instruct the sub-contractor to make a
steel staircase. It was not up to the
architect to change it to
a concrete staircase, which is more expensive than a steel staircase,
without a specific instruction
from the developer. The
architect needed to consult with the developer and Pick ‘n Pay,
and get approval from the developer
to have a concrete staircase
built.
It
was put to Lamprechts that this staircase episode occurred in
February 2007, when the planning was still for the shopping centre
to
open in April 2007. The staircase had to be cut out and
removed. Then Vermacatti, the project manager on behalf
of the
owners, decided not to replace it with steel, but to do a concrete
staircase which was quicker. Lamprechts denied
that concrete
could be quicker. In his view the architect should have
instructed the sub-contractor to make good the staircase.
[192]
Nel did not have a full understanding of the position surrounding
this staircase and said that as he understood the situation,
even if
the staircase had been perfect, it would not have been accepted by
Pick ‘n Pay because they did not want a steel
staircase. This
was of course not the problem. In re-examination Nel said that
he was informed that Mr Gladulitz, a Pick
‘n Pay architect,
condemned the staircase. Gladulitz is a dedicated Pick ‘n Pay
architect.
(iii)
Counsel’s Contentions
[193]
The steel staircase was condemned by Pick ‘n Pay, and plaintiff
then designed a concrete staircase. Defendants
say there is no
reason why they should bear the increased costs of the concrete
staircase over the steel staircase. The sub-contractor
who
built the defective steel staircase should have been instructed to
rebuild the steel staircase. The plaintiff should
not have
issued the variation order.
[194]
For the plaintiff Mr Zidel pointed out that the evidence disclosed
that the project supervisor, Vermicatti said that a concrete
staircase had to be built.
(iv)
Conclusion
[195]
As Abrahamsohn said a concrete staircase was built because it was not
a simple matter to remove the steel staircase, the concrete
columns
adjacent to it made the simple solution for the stair to be
concrete. It made no difference to Pick ’n Pay
whether it
was as steel or concrete staircase, it would be cladded anyway.
There is no merit in this claim.
ITEM
10 - MAIN ATRIUM COLUMNS
(i)
Experts’ Meeting
[196]
This item was described as follows in the meeting of experts:
“
The
4 main atrium columns were constructed incorrectly because the
architect did not specify the tolerances needed to enable the
columns
to be tiled which necessitated additional unnecessary work in the
form of boxing of the columns provide surfaces suitable
for tiling.”
(ii)
Evidence
[197]
In his report Fee said it was explained to him that the offset of the
columns was a requirement of the structural engineer.
Plaintiff
provided for boxed out cladding of the columns to obscure the view of
the corbels and to ensure apparent aligning
of the columns.
Fee’s view expressed in cross-examination was that the
treatment of the columns per se was a positive.
[198]
Bray testified that he was not involved in the decision to box in the
columns. He thought that the boxing was added,
in response to
the statement that the plan was that the columns be boxed in.
He said his knowledge of the detail was vague,
and said he preferred
not to address this item.
(iii)
Counsel’s Contentions
[199]
Defendant contends that plaintiff should have instructed the
contractor to remedy the non-alignment of the concrete elements,
but
instead plaintiff issued an instruction to box the columns. Mr
Zidel says it was always the intent to box the columns.
Abrahamsohn
said it was aesthetically more pleasing to the eye to have slightly
more body to the columns as boxing would
do.
(iv)
Conclusion
[200]
The evidence of the defendant does not establish any fault on the
part of the plaintiff. The evidence does not clearly
establish
the case advanced by defendants. It is not entirely clear what
the intent was and whether it was the contractor
who was at fault.
ITEM
11 - VOID BEHIND THE TOILETS ON GROUND FLOOR
[201]
There was no evidence on this claim, and no submissions were made on
it by Mr Gautschi.
ITEM
13 - FLOOR TILES
(i)
Experts’ Meeting
[202]
This item was described as follows in the meeting of experts:
“
Quality
of specified/approved floor tiles does not meet the required
standard. Failure to specify support of the edges of
tiles at
movement joints to prevent shelling of tile edges and failure to
specify adequate movement joints. Tile surface
appears to get
damaged through traffic.”
(ii)
Evidence
Dr
Roderick Rankine
[203]
Dr Rankine is an engineer and concrete technologist specialising in
the field of construction materials. His report
appears in the
Expert summaries at pages 276-292. He visited the site on 19
July 2013. In his report Rankine says that
there appears to be
a complete absence of credible evidence to show that the design
professionals used any rational criteria for
selecting or specifying
tiles. On the “tenting” (blow-up) of the floor
tiles he says the following in his report:
“
The
ongoing ‘tenting’ delamination of floor tiles at Loch
Logan Waterfront is most probably a result of a ‘perfect
storm’
of the following adverse factors working together in opposition to
the strength of the tile adhesive:
1.
Pre-tensioned reinforced concrete substrate
2.
Pumped concrete mix deployed
3.
Fast-track construction
4.
Construction during a worldwide building boom [when tiles have no
opportunity to mature]
5.
Use of thick tiles [these were 10mm, other tiles are 6-7 mm]
6.
Use of porcelain tiles which have a higher elastic modulus compared
with regular ceramic tiles
7.
Use of large size tiles
8.
Narrow grout joints (tiles spaced close together)
9.
Absence of soft perimeter joints
10.
Inadequate provision of soft-joints for tile expansion
11.
Soft joints and grout joints contaminated with tile adhesive
12.
Poor bedding of tiles in tile adhesive.”
[204]
According to Rankine, essentially, tiles tent because of differential
and opposite movement between the tiles and the concrete
substance.
Clay products, including ceramic and porcelain tiles have an
overall tendency to expand with age, a phenomenon
known as
“irreversible moisture expansion”. Fired clay
products start to expand from the moment they are exposed
to moist
air after firing. Concrete substrates, on the other hand, have
a tendency to shrink, a consequence of the loss of
water on drying.
Thus tiles expand on the concrete which shrinks. When the
concrete has been pre-stressed the risks
significantly increase. A
minimum of eight weeks is required between casting a concrete slab
substrate and tiling. In
a fast-track construction, the
concrete substratum may be tiled soon after it has been cast (one
does not know the period between
tiling and the casting of the
concrete substrate in this case).
[205]
In his evidence Rankine used a number of photographs which had been
taken by Koupis. The pagination of his photographs
did not
correspond with the pagination in the court file, or even in the file
used by counsel leading his evidence, Mr Gautschi.
Thus
reference to the photographs is confusing. However, it is not
necessary to refer to the photographs for purposes
of this analysis.
Rankine referred to the SANS specification on the laying of tiles,
the old SANS 10107 and the newer standard.
There have to be
movement joints, because concrete shrinks and the tiles expand.
Large tiled area must have movement
joints in both directions.
SANS 10107 reflects the best practice. The individual
specifications of the tile manufacturer,
the TAL specifications are
even more onerous. Rankine said that at the Loch Logan
Waterfront in the mall or walkways, as
Mr Zidel called them, there
are transverse movement joints in one direction but no longitudinal
movement joints. That constitutes
a contravention of the SANS
standards. The designer of the tile lay-out should substitute
alternative joints to accommodate
the inevitable movement. One
cannot just ignore the inevitable movement which will occur. In
this case there are no
longitudinal movement joints. The
photographs show that the failures are mostly in the middle of the
walkways.
[206]
In cross-examination Rankine was asked about the procurement of the
tiles, and it was put to him that Plaintiff recommended
Porto Bello
good quality porcelain tiles from Brazil, which cost R235 per square
metre, but that proposal was rejected by Koupis
of defendant who said
that he was not prepared to pay more than R150 per metre for tiles,
and he then sourced tiles from Marble
classics. The technical
specifications of the tiles are given by Marazzi (Plaintiff’s
Trial Bundle 2 page 144C). There
the manufacturer says that
there must be expansion joints very 5x5 metres. Rankine said that the
quality of the tile is the first
aspect to consider. He was not
convinced that these tiles had been properly tested under controlled
circumstances in Hong
Kong by the manufacturer.
[207]
Regarding the shelling (edge chipping) of the tiles, Rankine said
this is a big problem at industrial floors. Joint
armouring can
be used, which is a reinforcement with metal or hard plastic.
An alternative is elastrometric sealant that
resists edge failure,
but that is very expensive. On the allegation that the tile
surface appears to get damaged through
traffic, Rankine responded
that the tiles in the high traffic areas, next to the walk-off
carpets looked dull. He expressed
the view that the life span
of tiles in malls should be 20 years at least. This is contrary
to what several other witnesses
said, namely that the life span is
between 7 and 10 years.
[208]
Rankine was asked on the alleged failure by the plaintiff to specify
adequate movement joints. He said that 5x5 was
the maximum area
allowed for movement joints, but 3x3 metres would be well advised.
25 square metres is the absolute maximum.
The movement
joint must be installed all the way to the bottom of the tile.
Poli-sulphate is expensive. A backing
cord, which is a
flexible sausage that looks sponge-like can be used, and is
acceptable practice. The contractor must ensure
that all the
glue is out between the tiles where the soft joint is to be put in.
Use of a backing cord forces the contractor
to clean the joint
out. That is a construction and supervision responsibility. In
response to the statement that at
some places 70 mm thick tile
adhesive was used, Rankine said that illustrated poor workmanship.
If the movement joint is
contaminated with glue, that could
cause tenting.
[209]
It was put to Rankine that at all shop fronts there were perimeter
joints. That would mean every area of 7x3 metres
was surrounded
by a soft joint, being 21 square metres. Rankine responded that
one does not just look at the area, and he
disagreed that such
practice (of 3x7) was proper rational design. It was put to Dr
Rankine that the problem was that some
of the tenants took out the
perimeter joints, or made their floors up to the tile endings,
without perimeter joints. Rankine
was referred to the report by
Truter (Defendant’s trial Bundle 7 page 2238-2251). Rankine
said he extracted some information
out of the Truter report. With
reference to the table on page 2245 he agreed that all the items
listed by Truter dealing
with tile failures at various places in the
shopping centre were construction issues. Rankine agreed that
Truter made extensive
investigations.
[210]
In re-examination Rankine said that he could not see longitudinal and
perimeter joints in many places. He was told that
they had been
installed in some places. Soft joints at 3x3 intervals make
more provision for movement, and reduce the risk
of tenting failure.
As to the width of the joint, the specification requires 5 mm,
the bigger the joint the better from a
point of view of tenting
failure. Asked about construction failure regarding perimeter
joints, Rankine said that he assumed
that there were perimeter joints
along the walkway. If there was no soft joint in the middle of
the walkway, the risk of
tenting failure was increased. Asked
about the specification of the tile hardness, Rankine said that the
resistance to scratching
was not as great as was claimed by the
manufacturer.
[211]
Fee visited the mall for the first time on 13 August 2013. He
did not see the building when the tiles were laid. Upon
his
observation he found the tiles generally in good condition, kept
clean and they retained their shine. He did notice damage
to
the sides of some tiles. This damage seemed to occur at the
points where the soft joints separated the tiles. The
tiles on
one side of the joint appeared to be slightly higher than on the
other side, which caused a rumbling impact from the wheels
of
trolleys being pushed over the tiles, similar to the rumbling noise
one hears when driving a motor car over rumble strips on
the road.
The uneven laying of the tiles could be the cause of the damage
to the sides of the tiles. Fee also saw some
tiles damaged by
the impact to something dropped on them. The hard wheel
trolleys used with tenant installation could damage
the tiles which,
according to Fee’s observation were not adequately protected
during such installation operations from the
hard wheels of the
trolleys.
[212]
Fee’s view was that the standards of the SABS and TAL were
benchmarks, but there is space for rational attitude, particularly
here, where one wants to limit the number of expansion joints from a
sight point of view. Soft joints are aesthetically unpleasing,
and Fee could understand that one may not want to put a soft joint in
the middle of the walkway. Fee further expressed the
view that
tile manufacturers and tile layers are well-versed in the issue of
laying large areas of tiles, and would be in a position
to make
rational choices as to the placement of soft joints.
[213]
In cross-examination Fee conceded that the aspect ratio of 1:1.5
means that if the transverse joints are at 3 metres, then
the
longitudinal joints have to be at 4½ metres. He agreed
that that 3x7 metres spacing did not comply with the 3x3
metre
requirement. He agreed that the architect elected to depart
from the ABS and TAL specifications and applied rational
design. Fee
said the question at the end of the day was whether the floor tiling
failed because the prescriptions of the
TAL and SABS specifications
were not applied. That is the correct question which should be
asked. Fee was not prepared
to give an opinion on the alleged
negligence of the plaintiff.
[214]
Lamprechts testified that the architect stipulated polished porcelain
tiles. These glazed porcelain tiles that were
installed were
very new at that time. This was the first shopping centre where
such tiles were installed. Because the
tiles were so new the
architect had to exercise additional care. The architect had to
bear in mind the climate in Bloemfontein,
which is semi-desert.
There are thunderstorms and driving winds in Bloemfontein. The
glazed porcelain tiles get wet,
and customers can slip on them.
In Bloemfontein, because of its extreme temperatures, concrete will
expand and extract to
the maximum specified in the trade. In a
winter’s night in Bloemfontein the temperature can go down to
minus 10, and
it can easily go to 20 the next day, giving a
differential of 30 degrees. The tiles installed on concrete
will move.
The tiles must be installed in accordance with the
best possible standards. There were two specifications for
tiling available
at the time, the TAL standard and the SABS 0107.
It is essential that the architect must comply with these standards,
otherwise
the architect makes a rational design. The architect
cannot deviate from these standards. In the SABS standards
porcelain
tiles were not even mentioned, they were so new at the
time. That should have cautioned the architect. Vast
areas needed
to be tiled. The joints between the tiles are
specified to be between 6-8mm, and the longest line to a soft joint
4,5 metres.
In this case the tiles were in a square of 3 x 7½
metres. That does not comply with the specification. The
distance
between the tiles must be between 6 to 10 millimetres.
The tiles in the Loch Logan centre do not comply with either the TAL
or SABS standard. The architect used rational design, and if
the architect does that, the liability rests with the architect.
The architect should have known better. Now there is a failure
in the tiling, which failure is the sole responsibility of
the
architect, due to the non-compliance of the architects with the
specifications.
[215]
Lamprechts testified that backing cord is placed into the joint, so
as to ensure that there is no glue in the soft joint.
It is
difficult to supervise tiling. In order to try to ensure that
all the glue is removed, it is important to ensure that
the cord is
put in. The cord does not fit in the joint if all the glue has
not been removed. The architect should have
specified that the
cord must be installed. Asked about the tenant drawings with
specific reference to perimeter joints for
the tiling, Lamprechts
responded that the normal process is for the architect to approve the
tenant drawings, so as to see that
the tenant lay-outs contain the
perimeter joints. If the architect does not check the tenant
drawings to ensure that the
perimeter joints are in place, the
architect is negligent.
[216]
Lamprechts’s point was that the architects did not take into
account all the weather conditions under which the tiles
had to serve
in Bloemfontein with its extreme climate. It was put that
polished porcelain tiles had previously been used
in various shopping
malls, in particular in Woodhill and George, and porcelain tiles then
became popular in shopping centres.
Lamprechts insisted that
porcelain tiles had not been tested over a long period of time.
The complaint stressed by Lamprechts
was about the method of
installation. He said tiles in the Western side were exposed to
weather conditions. Lamprechts
confirmed that the plaintiff was
also the architect for the Mimosa Mall in Bloemfontein, which is the
second most important mall
in Bloemfontein.
[217]
Dealing with the technical specifications for installation of the
tiles, it was put to Lamprechts that Rankine had said that
5mm joints
were acceptable, as per the TAL instructions. Lamprechts
stubbornly insisted that the SABS 0107 specification
required 6 mm,
and the architect had not followed the SABS specifications, and had
according to Lamprechts used rational design,
for which made the
architect personally liable. It is difficult to see how an
installer of a product can be held liable if
the installer follows
the instructions of the manufacturer. Lamprechts said the poor
workmanship contributed to the failure.
But his main concern
was that the architect did not specify backing cord for the soft
joints. Lamprechts agreed that the
life span of these tiles was
7-10 years, and that the tiles are now reaching the end of their life
span, which Lamprechts could
not dispute. They have been in for
7 years.
[218]
Van Rensburg testified that Ms D Hughes, who worked in the design
department of Bentel, together with Roger Gardiner, visited
the
shopping centre to check the finishes. The omission of the soft
joint in the longitudinal direction in the floor tiles
was pointed
out to her, and she said that they preferred not to put such soft
joint in for aesthetical reasons. Van Rensburg
inspected the
tiling work, and noticed that the joints between some tiles had not
been properly scraped out at places where the
soft joints were.
In cross-examination Van Rensburg said that he would not speak
directly to the person laying the tiles,
but if he noticed that
problems with the tiling were not addressed, he would insist that the
tiling be re-done in respect of the
error he had pointed out.
[219]
In cross-examination Nel confirmed that the tiles became dull within
one year, and shelling took place at the joints. There
were not
longitudinal soft joints. According to Nel the accepted life span of
floor tiles in shopping centres is between eight
to ten years, and he
agreed that the tiles have been there for seven years. He said the
number of tiles that had had to be replaced
was unusual. Nel agreed
that it is the duty of the tiling contractor to clean glue from the
joints before putting in the soft joint.
He agreed that NBA studio
had an inspection duty, and said they performed that inspection duty.
He agreed with the report by Dr
Rankine that any two of the 12
factors mentioned could lead to failure of the tiles. Nel said the
vast majority of the tiles that
had shown tenting, 26 out of the 33,
were in the longitudinal direction of the mall. He agreed that there
were other factors than
the placing of the soft joints which could
influence failure of the tiles. Asked what would have happened if
they saw that no backing
cord had been placed in the soft joint, Nel
responded that NBA studio had been given no design specification.
They had no obligation
to tell the tilers what to do.
(iii)
Counsel’s Contentions
[220]
As to the quality of the tiles, it was not disputed that defendant
decided for costs reasons to buy the tile from China. The
tile
recommended by plaintiff was not used.
[221]
Defendants say the failure to specify the correct distances for the
movement joints (soft joints) caused the tiles to fail.
Mr
Zidel points out that the tiles also failed in several other areas.
The evidence was that a soft movement joint
in the middle of the
walkway would be unsightly. There is no evidence that the tile
failures were a result of any negligence
on the part of plaintiff.
There was poor construction and workmanship.
(iv)
Conclusion
[222]
As to the quality of the tiles, the tiles were chosen by defendant,
against plaintiff’s recommendation of a better tile.
Rankine was not satisfied that the tiles had been properly tested
under controlled circumstances in Hong Kong, and that the tiles
complied with the specifications claimed. The tiles have
reached the end of their expected life. Any one of the 12
causes listed by Dr Rankine could cause the tenting. Eleven of
those causes relate to construction. The claim must
fail
because defendant has failed to establish that the failing or tenting
occurred due to the design of the plaintiff. The
design of the
plaintiff is not the more natural, or plausible cause of the tenting
from amongst the conceivable ones listed by
Rankine (
Govan
v Skidmore
1952 (1) SA 732
(N) at 734C-D;
AA
Onderlinge Assuransie-Assosiasie BPK v De Beer
1982 (2) SA 603
(A) at 614H-615B). Defendant’s claim must
fail.
ITEM
14 - STAGE 5 ARCHITECTS:
PROBLEMS
TO GET CORRECT DRAWINGS FROM PLAINTIFF
(i)
Experts’ Meeting
[223]
The experts agreed that this was a matter for factual evidence.
(ii)
Evidence
[224]
Van Rensburg testified that the first Bentel plans were submitted to
the municipality during 2004. Van Rensburg was involved
on site from
2006. In broad terms the plans were submitted to the
municipality five times. In-between he had informal discussions
with
the representatives of the municipality. The plans were
rejected on 17 November 2004 (Kit 14 page 1). There is
an
internal process in terms whereof the municipality gives commentary
on the problems they have. On 2 February 2006 Van
Rensburg sent
a telefax to Leighton to inform Leighton of the problems. Being
a fast-track project, amended plans had to
be submitted to council.
The same points repeatedly came up:
(i)
Absence of measurements.
(ii)
Parking bays next to walls (where an extra 300mm has to be allowed in
terms of the Bloemfontein regulations, in contrast to
the regulations
applicable in Johannesburg).
(iii)
Absence of chronological numbering of parking bays.
(iv)
Gradient of the ramp (was 1:8, could not be less than 1:10).
(v)
Bridging zones (transfer from ramp to level not indicated or
sufficient).
(vi)
Parking bays which did not comply with standards were shown on the
plans.
[225]
Five parking bays are allowed for every 100 metres of gross leasable
area (GLA). Van Rensburg referred to a communication
from Roger
Gardiner (of Bentel) dated 8 December 2008 requesting a copy of the
parking regulations. On 8 December 2008 Van
Rensburg sent the
parking regulations to Gardiner.
[226]
The municipality again rejected the plans on 31 January 2006. Van
Rensburg told Leighton to note certain points. The
process of
submitting plans is that the municipality tell you very clearly what
his to be rectified. Upon re-submission the
municipality looks
whether you addressed the problems identified by them, and if not the
plan is returned to you for further attention.
The document at
Defendant’s Bundle 13 page 4 is a general checklist, on which
the items requiring attention are marked
by the municipality, on 2
March 2005.
[227]
The third submission of the plans occurred on 7 July 2006, and on 10
October 2006 the plans were again rejected. The
plans were
rejected because the parking bays were not numbered, and the
dimensions of the bays were not indicated on the plans.
This
was a repetition of previous problems. The plans were not up to
standard. On 25 October 2006 Bentel sent the plans
again.
During October Van Rensburg spent a lot of time on the plans.
He got the impression that Bentel did not understand
what the
problems were. On 6 December 2006 Van Rensburg received
informal comments from the council after the re-submission
of the
plans in July 2006. The council was becoming impatient because
Van Rensburg repeatedly cancelled meetings with them
because he did
not get the required information from Leighton. There is an
email from Van Rensburg to Bentel about the parking
bays which were
still not numbered.
[228]
Van Rensburg said that on 2 October 2008 the Mangaung Metropolitan
Municipality sent a letter to VKE Engineers regarding the
traffic
impact study. “As built” drawings were submitted, but not
approved by the municipality, which plans were again
returned by the
municipality with comments. On 7 October 2008 Nel sent an email
to Roger Gardiner informing him that extensive
revisions to the
drawings are required. Van Rensburg testified it would take too
much time to do the corrections by hand.
Until these plans have
been approved, no further plans relating to the premises, e.g. tenant
drawings, can be submitted.
On 10 October 2008 the municipality
still had the same problems with the drawings. On 26 November
2008 Van Rensburg
wrote to Gardiner explaining the problems and
informed him that the plans were not in order. On 8 December
2008 a response
from Abrahamsohn was received, as indicated in the
wording highlighted in green on pages 94-96 (Kit 14). On 9
February 2009
VKE reported that it would be futile to submit the
plans again. NBA studio, the stage 5 architects had to do the
alterations
on the plans by hand, as the dimensions of the parking
bays were still not indicated on the plans.
[229]
The additional fees incurred by NBA studio are calculated at 83 plus
10 hours for Van Rensburg and Nel respectively.
In
cross-examination Van Rensburg said that as architect, you try to get
in as many parking bays as possible. NBA showed
Bentel how they
could get in more bays but Bentel did not design the parking
optimally.
[230]
Nel testified with reference to the council check-list and items
ticked off there, that they had negotiations with the council
regarding the plans prepared by Bentel. At the stage of the initial
submission of the plans, there were zoning problems, and for
that
reason he consented that the second floor could be omitted. They
would later apply for that consent, which was done, and that
approval
was obtained. There were comments from the aesthetics committee of
the municipality. The aesthetics committee did not
like the big
square building, which had too much of a solid and massive
appearance, and the aesthetics committee felt that insufficient
attention had been given to the aesthetical appearance of the
building. Nel told the committee that there would still be
considerable
changes, this was a fast-track project. The exterior
could not be completed before it was known what was going to happen
inside
the building.
[231]
On 30 April 2007 Nel received feed-back from the aesthetics committee
that they were satisfied with the proposals and were
awaiting the
final drawings, which Nel would have to submit. According to Nel,
that is where the process is standing now.
Regarding the
preparation of “as built” drawings, Nel testified that he
got a CD from Bentel. The plans were in DWG
format which caused Nel
problems with the code to unlock the plans. A considerable number of
plans were not received from Bentel.
[232]
In cross-examination Nel was referred to Plaintiff’s volume 5,
page 1125, a letter from Nel to Denkar Manga at Bentel
dated 6
February 2004 wherein reference is made to the stadium parking. Nel
said that stage was a year before the submission of
plans. The plans
which were the subject of that letter were discussed but never
submitted to council. The project was delayed for
a considerable
time. In response to the statement that Nel was going to liaise with
council on behalf of the defendant, Nel responded
that Koupis
instructed NBA to submit the final plans. This letter was written at
the beginning of the project, and at that stage
the defendant worked
directly with Bentel. The zoning was still a sensitive subject at
that stage. There were objections from inside
the council that the
proposed development was too big, and the council withdrew the
written consent that had been given by one
of its officials. The
arrangement was that defendant would apply for re-zoning. At that
stage there was no issue about parking.
There were 11 surplus parking
bays.
[233]
Nel agreed with the statement that the design of the complex evolved
in parallel to the construction. He also agreed that
NBA studio was
the inspecting architect, and that it is the duty of the inspecting
architect to query if there appear to be problems
with the plans or
construction.
[234]
In cross-examination Nel was asked whether NBA studio was paid the
R80 000 claimed in item 14 in respect of the time
spent on the
plans, Nel said that would be sorted out with the defendant later. He
said NBA studio had rendered no invoice to the
defendant.
[235]
In cross-examination Abrahamsohn was referred to Defendant’s
trial bundle
10, ACD 25
where Nel details the shortcomings. ACD 25.1
shows, marked in yellow, the drawings which have not been received by
Nel. Abrahamsohn
said a small number of drawings were not
received by Nel, they were all handed over on a CD, made from the
drawings. 96 drawings
were printed, awaiting collection by the
defendant. Defendant did not collect them. It was put
that Nel had trouble
opening the drawings, consulted an expert and
the cost would be R50 000 to have the discs converted to .
Abrahamsohn
responded that there were various requests for
drawing registers and then the revisions for every drawing that had
been issued,
close to 90 were requested. The 15 CDs that were
provided listed every drawing and every revision. There were
three
further CDs of drawings listed in the drawing register.
Abrahamsohn insisted that all the drawings defendant requested
were
furnished, and the procedure to open them was given. Referred
to ACD 88 Abrahamsohn said the IT specialist opened the drawings.
Abrahamsohn said the stage 5 architect has the duty to provide
the as built drawings. In response to the statement
that it is
the duty of the stage 4 architect to provide the as built drawings,
Abrahamsohn said there is an overlap.
[236]
Fee testified that he has been involved in projects where he has been
the remote architect, and another architect the stage
5 architect at
the place of construction. Such relationship is complex. Fee
never saw the drawings that were provided concerning
the complaint of
non-compliance, and was not prepared to commit himself to an answer
as to the conduct of the plaintiff. He
did concede that it is
the duty of the architect to see what regulations have to be complied
with, e.g. traffic regulations.
(iii)
Counsel’s Contentions
[337]
Defendant contends that NBA studios spent several hours to try to
rectify errors on the plans made by plaintiff. Leighton
had a
nonchalant and cavalier attitude.
(iv)
Conclusion
[238]
No claim has been made or any invoice rendered by NBA studios to the
defendants and accordingly no liability exists. This
is a
conditional claim, which is not possible. NBA can claim from
plaintiff if it believes it has a case.
ITEM
15 - EXTERNAL CONCRETE FAÇADE
(i)
Experts’ Meeting
[239]
This claim is formulated as follows in the minute of the meeting of
experts:
“
Insufficient
specifications on external concrete façade finish.
Bentel elevation drawings did not specify the finish
on concrete
required, and therefore the Contractor applied the engineering
specification of ‘smooth formwork, degree of accuracy
2’.
The finish, however, allows for a substantial tolerance and does not
provide for an acceptable finish that can
be regarded as a final
finish without further maintenance of application. As per
design minutes dated 4 October 2005: ‘The
Project Team was
advised (by the engineers BKS) that the concrete accuracy (as per the
bill) would be Class 2, which would be -15
mm and/or +5mm to level
deviation.’
”
Issue
1: Whether the external concrete façade finish was restricted
to the eastern elevation.
The
plaintiff says yes, the defendant no.
Issue
2: What the plaintiff’s specifications were for external façade
finish to the eastern elevation
Plaintiff
says plaster and paint, and defendant says off-shutter concrete.
Issue
3: What the second defendant’s instructions were in respect of
the external façade finish to the eastern elevation.
Plaintiff
says: “Refer to meeting (26 October 2006) held at Plaintiff’s
office where the instruction was issued to treat
the eastern façade
with top finishes. As a consequence various options were
presented.”
Defendant
says: “All the solutions were to try to solve the problem of
the substandard off shutter concrete.”
(ii)
Evidence
[240]
In his report Fee says that he was advised that it was always
intended that a finish would be applied to this façade.
The
drawings submitted to council on 2 March 2005 indicated plaster and
paint. Fee was advised that Class 2 concrete
had been specified
and that there are substantial variances in the finished surfaces, in
excess of the specified tolerances due
to contractor errors. It
was put to Fee that class 2 concrete was specified. Fee said he
could not comment, there appeared
to be a misunderstanding between
Bray and Leighton. It was further put that the contractor used
new shuttering, but the concrete
panels were out of tolerance. Fee
said a credit of R1.5 million was given in respect of this work. Fee
said he understood
that at the behest of the owner, an alternative
design was called for and Bray made 17 drawings, brought down to 4,
and the owner
selected the 800x800mm tiling finish. This was
fully detailed by the plaintiff so as to be able to get an accurate
price.
Union Tiles got comprehensive detail and were able to
give a price. That is where the project was left, as Fee
understood.
[241]
Lamprechts said that the current façade on the East is
concrete, which is not approved by the council. The plaintiff
did not co-ordinate the work with the engineer’s drawings.
Had the contractor correlated with the engineer’s
drawings, the
architect would have made the contractor aware of what was required.
The façade was not utilised to
its full potential.
Concrete is much more expensive than plaster and paint. The
concrete was intended as a final finish.
As it stands the
concrete façade is a waste of money. The wall on the
east could easily have been done with brick
and plaster. What
one now sees on the eastern façade does not make sense.
[242]
It was put to Lamprechts that the Council made a note that the matter
was to be approved by the urban and aesthetics committee.
Lamprechts said this was a conditional approval of the plans, subject
to the aesthetics committee, which approval has not been
given.
It was put to Lamprechts that the façade has been up for seven
and a half years, and remains in place.
Lamprechts said a
façade had a structural and aesthetic function.
According to him the façade fulfils its structural
function,
but not the aesthetic function. It was put that the façade
is now used to put up advertisement banners,
which provides an
income, and covers the façade, and complies with council
requirements. Lamprechts could not comment
on this.
[243]
In cross-examination Nel agreed that the original design was for
plaster and paint for aesthetical reasons. Nel advised Bentel
to stay
away from plaster and paint, because the sand used for plaster in
Bloemfontein is not always of good quality, and is a
high maintenance
finish in Bloemfontein. Bray wanted to suggest a concrete finish. The
eastern façade, facing First Avenue,
was the greatest concern,
because it has a big impact on the environment.
[244]
The aesthetics committee did not explain their concerns on paper. Nel
spoke to a member of that committee and discovered that
the large
mass of the façade was a problem. Nel told Bray and Leighton,
and they both understood perfectly what Nel was
worried about. During
further design Bray came with better suggestions. There would be a
curved element in Bray’s concept,
but that was never done,
because Murray and Roberts was of the view that that would be too
difficult to construct. They had to
keep the aesthetics committee
happy so as to get on with the work. It was put to Nel that
Abrahamsohn was told that the defendants
were prepared to pay a lot
for the eastern façade, but Nel could not comment on this
statement. Nel does not know
when the municipality will give
final approval. Provisional approval was obtained in 2010, when the
council said the eastern façade
was approved in principle.
(iii)
Counsel’s Contentions
[245]
The defendants claim that new shuttering was bought at a cost of R34
million so as to have a high quality off shutter finish.
Leighton
failed to co-ordinate the design intent with the drawings of the
structural engineer. The cost of the high
quality shuttering
was wasted. Mr Zidel says that class 2 concrete was specified
and badly applied by the contractor, and
this is why the contractor
agreed to pay compensation of R1.5 million to the defendant.
(iv)
Conclusion
[246]
The building has remained in its present form for more than seven
years with advertising banners extending over the eastern
façade.
The first defendant has failed to make out a case against the
plaintiff based upon alleged negligence of the
plaintiff in its
contractual duties.
ITEM
16 - NIGHT WORK RATES
[247]
No evidence was led on this item, and no submissions were made by Mr
Gautschi.
ITEM
17 - LATE DESIGN CHANGE: FLOOR HEIGHTS
[248]
No evidence was led on this item, and no submissions were made by Mr
Gautschi.
ITEM
18 - DEEP TRANSFER CONCRETE BEAMS
(i)
Experts’ Meeting
[249]
This claim is formulated as follows in the minute of the meeting of
experts:
“
Deep
transfer concrete beams in Zone 3 area on M1 level has rendered this
parking area unusable for parking (these beams are too
low for cars
(sic) to drive underneath them). As a result this area could
have been omitted as a slab was constructed that
has no practical
use.
”
(ii)
Evidence
[250]
Fee testified that he was advised that the transfer beams were
required by the structural engineer. In relation to the
deep
transfer beams Fee said that when constructing a mall compromises
have to be made.
[251]
Bray said he dealt with Leighton when this occurred. The
parking area was lost. Bray said the problem could be
resolved
in a number of ways: (i) To allow the columns to go through to the
mall, then you have to widen the mall at that place.
(ii) Re-locate
the column under the parking bay, slide it away. (iii) Narrow the
height of the beam, by increase in its width.
This would be the
first option Bray would attempt. He would ask the engineer to
re-design the beams. (iv) The column could
be put in the space of two
parking bays. Then you lose two bays, and that is all.
[252]
In cross-examination Nel confirmed that the beams were provided by
the engineer. 29 parking bays are not used, but Nel agreed
that those
bays are now put to other use, albeit in a prime parking area. Nel
agreed that the glass fit and car wash businesses
would not do so
well if they were not in this area close to the entrance and exit.
(iii)
Counsel’s Contentions
[253]
Defendant says that the curved design of the shopping malls above the
basement and lower ground parking required that transfer
beams had to
be introduced below upper ground level to off-set the structural
columns in order to prevent the columns from intruding
into the mall
space.
(iv)
Conclusion
[254]
The deep transfer beams were designed by the engineer and are a
structural requirement due to different column spacing needed
between
floors as a result of the curved nature of the mall structure. Due
to their nature these concrete beams have interfered
with a minimal
number of parking bays directly below the beams. The areas has
however been fruitfully utilized as a car wash
as well as a glass fit
centre and the surrounding area is utilized for parking cars that are
in the washing process. Thus
the area is being utilised.
Plaintiff points out that the 29 bays lost are being utilised
for an income-generating business
which is well-positioned at the
entrance and exit of the parking garage. There is no merit in
defendant’s claims on
this item.
ITEM
19 - PARKING LOST
(i)
Experts’ Meeting
[255]
This claim is formulated as follows in the minute of the meeting of
experts:
“
PARKING
LOST ON ORIGINAL DESIGN: As a result of parkings lost on the original
design the client was forced to build an additional
parking garage,
and he intends recovering the pro-rata cost of the loss of 118
parking bays.
”
(ii)
Evidence
[256]
Bray testified that the situation was that the architects (Bray
specifically) were of the opinion that two and a half metre
per bay
was required. They did not know of the Bloemfontein Council
requirement that there where the bay was next to a wall,
there had to
be an additional 300 mm, and, what is more important, that where
there are columns, the parking bay must have seven
and a half metre
space, excluding the column. This was an error made in the
design from the word go. If the additional
space had been left
to allow that seven and a half metres could be available for cars to
park, there would be many more parking
bays. Koupis and
Georgiou were unhappy with Bray about this, because he had given the
wrong specifications. 49 bays
are not sized correctly.
Leighton did not take proper care in the design of the parking bays.
The ratio is 5 parking
bays per 100 square metres of retail space.
This was an error, the bays were lost. The parking at the
stadium resolved
the problem. Leighton did not plan
sufficiently. An extra level for parking could be put on the
roof.
[257]
In cross-examination Nel said that he has no doubt that there is
excess parking in the complex at present, although not much.
His view
was that the parking was lost through ineffective design. He agreed
that some bays were lined but not approved as parking
bays, but can
be used.
(iii)
Counsel’s Contentions
[258]
The defendants say that 118 parkings were lost due to design. This
was partly because Leighton did not know, or did
not take account of
the fact that Bloemfontein regulations for the size of parking bays
differ from regulations elsewhere in the
country. As late as
2007 Gardiner requested a copy of the parking regulations from Van
Rensburg of NB1 studio. Defendants
say this shows negligence on
the part of the plaintiff.
[259]
Mr Zidel points out that the defendants’ evidence contends for
47 “lost” parking bays of which 29 relate
to the parking
bays in the area of the transfer beams. The remaining “lost”
parking bays have been demarcated,
but are not compliant with the
council requirements, but they are being utilised by shoppers who pay
parking fees albeit that the
bay is slightly narrower than municipal
specifications. Mr Zidel says the contention that the defendant
was forced to build
an additional parking garage is factually
incorrect because it was always the defendants’ intention to
construct parking
once the air rights had been approved. There
was always going to be further parking.
(iv)
Conclusion
[260]
As Fee testified, at the end of the project, with hindsight, things
could have been done better. There is no shortage
of parking.
There is no claim.
ITEM
20 - WALK-OFF CARPETS
[261]
Practically no evidence was given on this item. Mr Gautschi
made no submissions on this item.
ITEM
21 - PICK ‘N PAY DELIVERY YARD
(i)
Experts Meeting
[262]
This item was described as follows in the meeting of experts:
“
Pick
‘n Pay delivery yard must receive special waterproofing whereas
this could have been prevented by means of design, i.e.
sloping of
floor.”
(ii)
Evidence
[263]
In his report Fee stated that the waterproof zone was sufficient.
Fee agreed that according to the Pick ‘n Pay
specifications,
all yards, inside and outside, had to comply with the requirements
listed by Pick ‘n Pay. Fee agreed
that the drawings of
the plaintiff in respect of the Pick ‘n Pay delivery yard to
not entirely comply with the prescripts
of Pick ‘n Pay.
In re-examination Fee said that Pick ‘n Pay do not allow drains
over shops. That is also
not allowed by the municipality, the
drains must run in the ceiling. He said that three metres of
waterproofing was sufficient.
The density and curing of the
concrete are important. There are concrete reservoirs that hold
water.
[264]
Bray testified that it is the responsibility of the architect to make
provision for water in the parking area. The wind
drives rain
in, and there can be spillage at the point where trucks off-load.
All concrete exposed to weather must have a
1:50 fall. At the
Pick ‘n Pay parking area Leighton did not co-ordinate the
drawings of the engineer. Bray testified
that the Pick ‘n
Pay parking yard had to be waterproofed properly, not just the 3
metres up to the gate. The ceiling
height had to be 6 metres,
and it was put that if the floor sloped, there would not be enough
height, on which Bray could not comment,
save to say that he was not
party to those discussions. Bray said a parking yard is a very
dirty place, and the water needs
to run off to the outside.
[265]
Lamprechts expressed the view that the architects ignored the weather
aspect. The architects knew that in a delivery
yard, you need
to clean it. There are diesel and product spills. It was
very easy to solve this problem. This
was in his view an
outrageous oversight by the architects. There should have been
hills and valleys and a slope to make provision
for the spillage to
run off.
It
was put to Lamprechts that a cleaning machine could be used to clean
the floor, there was no run-off needed. Lamprechts
responded
that the floor was not water proofed, and cracked. It was put
to him that this was a construction problem, and
that in seven years
there had been no claim from Pick n Pay against the owners.
[266]
Nel’s view was that the area should slope, and there must be
waterproofing.
(iii)
Counsel’s Contentions
[267]
Defendants say that no falls and drainage were specified by the
plaintiff as required in the Pick ‘n Pay specifications
for
their off-loading yard. No provision was made for drainage and
waterproofing of this yard. Lamprechts suggested
that there
could be hills and valleys.
[268]
This is an internal delivery yard. To the extent that it is
exposed to weather plaintiff provided for waterproofing
for
approximately three metres at the entrance as well as a four metre
waterproofing overhang which was reasonable and sufficient
to protect
the yard from adverse weather. Any minimal water which does
enter the yard from trucks or from cleaning processes
can easily be
removed by mechanical means.
(iv)
Conclusion
[269]
It is significant that there has been no complaint by Pick ‘n
Pay. As Fee said, the proof of the pudding is in
the eating.
One should ask, when there were severe rain storms, did the
water go down to the shop below the delivery yard?
He knows
that concrete does crack. Most cracks can be readily repaired.
Structural cracks create more difficulty.
There were
cracks in the floor of this delivery yard, and the contractor had to
repair them. Whatever leakage there
was has been corrected.
There have not been serious negative results as a result of the
plaintiff’s failure to comply
strictly with the Pick ‘n
Pay prescriptions. The evidence showed that a sloping floor
could create problems with the
height of the area. A machine
can do the cleaning of the floor. There is no merit in this
claim.
ITEM
22 - LIFT DOOR OPENINGS
(i)
Experts Meeting
[270]
This item was described as follows in the meeting of experts:
“
Incorrect
lift door openings: Bentel did not coordinate the revisions to
the issue of this information, which led to openings
having to be
altered on site.”
(ii)
Evidence
[271]
In his report Fee states that it is in the nature of major retail
projects that the achievement of programme dates for tenant
occupation is critical and of necessity work is often implemented on
site in the absence of fully finalised technical information.
Design development is carried out in parallel with construction. By
the time the lift shaft drawings to suit the Thyssen
lift
installation were available, certain lift shafts had been completed
and amendments to door openings were required. In
cross-examination Fee said this was a fast-track project. One
must determine what information was available when the architect
made
the decision how to construct the lift door openings. It depends on
what was happening on the site at the time. It is
of paramount
importance not to delay the erection of the structural parts of the
building, of which the lift door openings were
part. A delay in
erecting the structural part of the building, in which the lift
shafts are housed, could have a critical
impact on the project. It
would be wrong to delay a decision on the construction of the door
openings in the lift shaft,
because that could delay the whole
construction process. A situation arises on site, and, in Fee’s
experience, the
architect must make the call. The architect
will fix it later if necessary. This should be a contingency
item in the
budget, the door opening can be adjusted later. Asked
whether the lift door openings could have been wider, Fee said it
depends
on the exigencies of the project.
[272]
Lamprechts said the lift doors were not big enough for the lifts that
were eventually installed. This was irresponsible
design of the
architects.
These
refer to the lifts on the Woolworths side. It was put that
there was no sub-contractor appointed at that stage, the
Otis
specifications were used, but a lower tender was accepted.
Lamprechts could not comment on this.
[273]
In response to the question in cross-examination that it is the duty
of the stage 5 architect to rectify the lift entrances,
Nel responded
that it was a co-ordination function of the architect designing the
openings. He said Bentel and the mechanical engineers
should have
co-ordinated so as to get the correct opening.
(iii)
Counsel’s Contentions
[274]
Defendant says that plaintiff designed the lift shafts and lift door
openings and issued their dimensions to the structural
engineer. It
was a structural requirement that these lift shafts would be
constructed in concrete. Plaintiff had to
issue these
dimensions to the engineers before the lift manufacturers were
appointed and therefore used generic specifications.
After the
tenders came in Thyssen Krupp was appointed, at which stage a number
of lift shafts had already been constructed,
whose lift door openings
differed from the ones having been used by the plaintiff in its
drawings. The lift door openings
then had to be enlarged by
breaking into the concrete shafts. It is the contention of the
defendant that plaintiff should
have anticipated this delay in
information, and accordingly oversized the lift door openings in its
instructions to the engineer
with an allowance for brick infill
afterwards.
(iv)
Conclusion
[275]
Plaintiff stresses that this was a fast-track project, where detail
evolved in parallel with construction. As the lift
door opening
were structural in nature, plaintiff was compelled to provide for
sizing of the lift door to facilitate construction
prior to the
defendant selecting the lift manufacturer. To the extent that
it is contended that approximately three lift
doors had to be resized
afterwards, it cannot be contended that plaintiff’s conduct was
negligent. Whatever problems
there were, were resolved at an
early stage. There is no merit in this claim.
ITEM
23 - CO-ORDINATION FOR PIPES
[276]
No evidence was led on this item, and no submissions were made by Mr
Gautschi.
ITEM
24 - CONTRACTOR’S OVERHEAD COSTS OF 10%
[277]
No evidence was led on this item, and no submissions were made by Mr
Gautschi.
III
CONCLUSIONS
19.
CONCLUSIONS ON COUNTERCLAIM
[278]
An architect must exercise the general level of skill and diligence
exercised by other persons exercising the same profession,
being
skilled and experienced persons (
De
Wet v Steynsrust Municipality
1925 OPD 151
at 157). The architect’s liability is not absolute
in the sense of being liable for whatever occurs. The architect is
liable
for substantial negligence (
Dodd
v Estate Cloete and Another
1971 (1) SA 376
(ECD) at 379D-G). The architect does not guarantee a
perfect plan or a satisfactory result (
Surf
Realty Corp v Standing
et
al
78 SE (2
nd
)
901 (1953) cited by the US Court of Appeals, Fourth Circuit, in
Gravely
v Providence Partnership
[1977] USCA4 200
;
549 F.2d 958
(4
th
Cir. 1977);
Coombs
v Beede
89 Me 187
at 188; A 104 (1896). There is no implied promise that
miscalculations may not occur (
Coombs
v Beede
89 Me 187
, 36 A. 104, 105 (1896).
[279]
In his article “The Measure of Malpractice”
Journal
of the American College of Construction Lawyers
Vol
5, Nr 2
, 2011 John R. Heisse says:
“
As
construction costs escalate while budgets shrink, there is continuing
pressure throughout the construction industry to “do
more,
faster, with less.” With increasing frequency, the
initial design is dissected by the contractor’s team
in an
effort to find less expensive means to accomplish the same result—a
process known as “value engineering.”
If
done properly, and with adequate input from the design team, value
engineering should result in a win-win—the designer’s
vision is fully realized while the owner’s budget constraints
are satisfied.
However,
these financial pressures affect design as well as construction
budgets, and design firms can find themselves sacrificing
the
“luxury” of many of the back checks and peer reviews that
were typically performed in decades past. At
the same
time, designers are utilizing new materials and are pushing the
envelope to use existing materials more efficiently, all
of which
increase the risk of design errors that are not “covered”
by safety factors, such that a seemingly minor error
can result in a
design which fails to perform as intended.
Sophisticated
owners have also realized that given all of the challenges
mentioned above, virtually every project will involve
unanticipated
changes, some of which result from design errors. Part of this
is calculated—an architect can advise
a client that its budget
for a job with some errors will be $X, while the budget for an
error-free project will be much higher.
The owner can do the
math and elect to buy less than perfection at the lower price,
recognizing that a contingency should
be set for the inevitable cost
of that imperfection.
In
view of these factors, creative attorneys and consultants
representing designers have begun to promote a new definition
of
professional negligence. Building on the truism that
professionals are not expected to execute their jobs perfectly, they
argue that a designer’s imperfections—her errors—do
not constitute negligence unless and until they result
in additional
costs in excess of some threshold amount. They assert that this
threshold amount will vary with the complexity
of the project, but
may range from a few percent of the contract price to beyond 10
percent.
”
(Footnote
omitted)
Heisse
quotes
Coombs
v Beede
in the following context:
“
Noting
that architects and engineers “deal in somewhat inexact
sciences and are continually called upon to exercise their
skilled
judgment in order to anticipate and provide for random factors which
are incapable of precise measurement,” the court
reasoned:
‘
The
indeterminate nature of these factors makes it impossible for
professional service people to gauge them with complete accuracy
in every instance.
’”
In
virtually all the items relied upon by the first defendant in its
counterclaim there is at best a risk of future harm.
This is
not a cause of action for negligence. Heisse quoting Prosser,
Law of Torts
(4
th
Ed 1971) par 30 at p143:
“
The
mere breach of a professional duty, causing only nominal damages,
speculative harm, or the threat of future harm—not yet
realized—does not suffice to create a cause of action for
negligence.
”
[280]
In this case no evidence was produced by the first defendant of any
tenant or shopper with regard to any defect or deficiency
in the
shopping centre. This is particularly significant in the case with
items in the counterclaim that directly involve tenants,
i.e.
Woolworths (there is no evidence that Woolworths have a problem with
the off-loading bay, on the contrary, they have increased,
almost
doubled their trading area); Pick ‘n Pay (no complaint about
the waterproofing in their off-loading area, or their
internal
staircase); NBA studios (no invoice sent to the defendants for their
additional hours spent).
[281]
Apart from the criticism levelled against defendants at each item
above, there is a conceptual problem with first defendant’s
counterclaim. This was a fast-track project. The first defendant
wanted the work completed sooner than would have been the case
with a
normal project. The architects together with Koupis and later also
with the project managers took decisions to complete
the work. Lee,
who has many years’ experience, says that with the wisdom of
hindsight one can at the end of a project, when
the building has been
completed, often see things that could have been done better. To give
an example, Abrahamsohn testified,
with reference to the parking
congestion, that the solution now proposed by Nel could have been
implemented at the time the problem
arose regarding the ramp designed
by Leighton that protruded onto council property. But a different
solution was proposed and accepted
then. At the time the defendants
were willing to accept the alternative arrangement. There is no
evidence that the defendants at
that stage informed plaintiff that
the incorrect work of Leighton would form the basis of a damages
claim. Had the plaintiff been
informed of such potential claim at
that stage, other solutions might have been considered and
implemented. The defendants accepted
the work done, and the
defendants are using the work.
An
important point, coming up repeatedly in the evidence, is that
defective work should not be accepted, but that the party doing
defective work should be instructed to make good the bad work.
The owners should have asked the architect to make good its
defective
planning and design. By accepting the altered work in respect
of the ramp the owners waived their rights to claim
for defective
work. If the plaintiff had not instituted a claim for fees, the
counterclaims might never have been made.
As has been indicated
at the conclusion in relation to each item above, there is no merit
in any of the items claimed.
20.
CALCULATION OF PLAINTIFF’S CLAIM
[282]
Plaintiff alleged that the principal contract was R336 400 000.
Defendant says it was R336 388 862,79.
To this amount
the direct contracts must be added. Plaintiff says these are
R21 163 884, and defendant says
that the amount for direct
contracts is R12 911 260. Plaintiff is willing to
accept defendant’s figures.
Thus the fees due, using
defendant’s figures are to be calculated as follows:
1.
Both parties agree that the defendant has effected payment of
R13 119 167,17.
2.
There is no basis to subtract 40%, as the quantity surveyor has done,
from the main fee claim because payment for stage 4 is
only due once
done. All work by the plaintiff to justify its main fee has
been done up to stage 4.
Calculation
of plaintiff’s contract fee:
[283]
According to Abrahamsohn and the plaintiff’s experts at the
joint minute, the rate to be applied is the fee applicable
when the
agreement was entered into. In the particulars of claim
plaintiff claims a base rate of R1 050 000.
In
argument Mr Gautschi did not attack this base rate.
1.
Principal contract (Murray &
Roberts)
.............................................
336 388 862,
79
Add:
Direct
Contractors
...........................................................................
12 911 260,00
349 300 122,79
Base
Rate
....................................................................................................
1 050 000,00
Plus:
5,5% of
R349 300 122,79
...............................................................
19 211 506.75
20 261 506,75
Less
25% (for stage
5)
...............................................................................
5 056 376,69
15 196 130.06
Less
20%
(discount)
..................................................................................
3 039 226,01
12 156 904,05
Thus:
(1)
Contract
fee
.......................................................................................
12 156 904,05
(2)
Mr Price (stage
3)
...................................................................................
274 548,55
(3)
Rooftop
Parking
.....................................................................................
496 293,51
(4)
Exterior
Cladding
.............................................................................................
Nil
(5)
Zone 5
Parking
.....................................................................................
770 000,00
(5.3)
Speed
Ramps
.................................................................................................
Nil
13 697 746,11
Less
Paid
..................................................................................................
13 119 165,17
Due
to
Plaintiff
............................................................................................
578 580,94
21.
COSTS
[284]
The plaintiff has not been substantially successful in its claims.
The plaintiff’s fees claim is allowed, but all plaintiff’s
claims for additional items have not been allowed. In the light
thereof it would be fair to make no order as to costs on plaintiff’s
claims. As to the counterclaim, a portion of the evidence could
possibly have been excluded if I had made a ruling on admissibility
of evidence relating to the so-called “cash flow fee basis”,
and the “on risk” question, aspects which
related to
defendants’ attempted amendments that were refused previously.
In order to make sure that the trial flowed, I
allowed all evidence
to be led, directing that the ruling on admissibility would be made
at the end of the trial. On that basis
I believe it would be fair to
order first defendant to pay 50% of plaintiff’s costs of the
counterclaim. The defendants
were at all times represented by
the same legal team. There is no basis to direct that the plaintiff
should pay the costs of the
second defendant because of the finding
that the first defendant is the party who now has rights and
liabilities under the contract.
22.
RESERVED COSTS
[285]
Mr Gautschi asked that the plaintiff be ordered to pay the reserved
costs of Monday 15 October 2012 before Moloi J. He
said the
letter in Defendant’s trial bundle
10 ACD 32
gives the details
of why the defendant is entitled to the wasted costs of that day.
The letter is dated 14 October 2012,
the Sunday before the
matter came before Moloi J on 15 October. The letter refers to
several telephonic conversations between
Mr Gautschi and Mr Zidel
dealing with the full set of plans and proposed meetings of the
expert witnesses. Mr Gautschi’s
submission is that the
matter was not ripe for hearing on 15 October 2012 because all the
plans had not been delivered and because
all the experts had not met,
and a minute of their meeting would not be ready on 15 October.
[286]
Mr Zidel says that the defendants moved major amendments shortly
before the trial as well as a further version of their proposed
amendments. The plaintiff’s legal representatives
objected, and defendants did not at that stage abandon the proposed
amendments. There was also a complaint by defendants that they
had not been given the “As built” drawings. Those
complaints did not constitute a reason why the trial could not
proceed on 15 October 2012. Mr Zidel says the reason for the
postponement was that the defendants wanted to amend their pleadings.
Plaintiff noted an objection. After the trial
had been
postponed the proposed amendment was abandoned by defendants, as also
appears from the judgment of Jordaan J, and the
proposed amendments
were again raised in 2013.
[287]
It appears that the major reason for the postponement on 15 October
2012 was the defendants wanting to amend their pleadings.
The
record of the proceedings on 15 October 2012 before Moloi J was not
placed before me. The trial could possibly
have proceeded
without the minute of the meeting of the experts, and without the
defendant having all the drawings. The defendants
should
therefore be ordered to pay the wasted costs of 15 October 2012.
23.
INTEREST
[288]
As to interest, plaintiff claimed 15,5% interest per annum from date
of issue of summons. The amount claimed by plaintiff
was amended, and
the contract between the parties makes no provision for
mora
interest. The clause dealing with payment of accounts (clause 14 in
Annexure “D”) provides that the plaintiff reserves
the
right to claim interest of 2% above the prime rate of interest
charged by Nedbank. The contract provides
for
interim fee claims. The parties were
ad
idem
that the works have not been concluded and a final amount has not
been determined for the works. There may still be a final calculation
of fees due to plaintiff, if any. In those circumstances it seems
fair to me to direct that interest only be paid as from date
of
judgment.
24.
ORDER
1.
The first defendant is ordered to pay the plaintiff R578 580.94
plus interest at the rate of 9% per annum from date of this
judgment
to date of payment.
2.
Absolution from the instance is ordered in respect of the balance of
plaintiff’s claims.
3.
No order as to costs in made on plaintiff’s claims.
4.
Absolution from the instance is found in respect of first defendant’s
counterclaim.
5.
First defendant is ordered to pay 50% of plaintiff’s costs of
the counterclaim, including the costs of two counsel.
6.
The defendants are ordered jointly and severally to pay the wasted
costs of the hearing on 15 October 2012, including the costs
of two
counsel, if two counsel appeared for the plaintiff on that day.
_______________
A.
KRUGER, J
On
behalf of plaintiff: Adv I. Zidel SC
with
Adv D.R. van Zyl
Instructed
by:
Matsepes
Inc.
BLOEMFONTEIN
On
behalf of defendants: Adv J.R. Gautschi SC
with
Adv A.J.R. van Rhyn SC
Instructed
by:
E.G.
Cooper Majiedt Inc.
BLOEMFONTEIN