Daycor Project Management CC v Tshwane Glass & Aluminium (Pty) Ltd t/a Industria Glass & Aluminium (51106/2009) [2013] ZAGPPHC 281 (20 September 2013)

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[2013] ZAGPPHC 281
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Daycor Project Management CC v Tshwane Glass & Aluminium (Pty) Ltd t/a Industria Glass & Aluminium (51106/2009) [2013] ZAGPPHC 281 (20 September 2013)

NOT
REPORTABLE
IN
THE NORTH GAUTENG HIGH COURT, PRETORIA /ES
(REPUBLIC
OF SOUTH AFRICA
CASE
NO: 51106/2009
DATE:20/09/2013
IN
THE MATTER BETWEEN:
DAYCOR
PROJECT MANAGEMENT
CC
....................................................
PLAINTIFF
AND
TSHWANE
GLASS & ALUMINIUM (PTY)
LTD
.............................................
DEFENDANT
t/a
INDUSTRIA GLASS & ALUMINIUM
JUDGMENT
PRINSLOO.
J
[1]
The plaintiff claims damages allegedly flowing from an oral agreement
entered into with the defendant.
[2]
Before me, Mr Riley appeared for the plaintiff and Mr Lubbe for the
defendant.
Brief
synopsis
[2]
It is convenient, for illustrative purposes, to quote extracts from
the particulars of claim:
"3.1
In and during June 2007 and at Bryanston, the plaintiff represented
by David Day, and the defendant represented by Willie
Kruger entered
into an oral agreement in terms whereof the plaintiff engaged the
defendant as a contractor to manufacture, supply
and install agreed
glass and aluminium windows and doors ('the work’) for a new
cluster home at 138 Mount Street Bryanston
('the home’).
2.2
The aforesaid oral agreement was partly recorded in writing. The
plaintiff attaches hereto:
2.2.1
... a copy of the defendant's quotation which was accepted by the
plaintiff in the amount of R595 019,15 (excluding VAT).
2.2.2
... 15 pages consisting of copies of drawings of the glass and
aluminium windows and doors required to be manufactured, supplied
and
installed in and at the home.
4.
The material terms of the oral agreement were, inter alia, as
follows:
4.1
The defendant would manufacture, supply and install the work as
agreed.
4.2
The defendant would manufacture, supply and install the work for an
amount of R595 019,15 (excluding VAT) as calculated in terms
of
annexure POC1 hereto.
4.3The
manufacture, supply and installation of the work would be performed
by the defendant:
4.3.1
in a proper and workmanlike manner;
4.3.2
without any defects. (My note: up to this point, all the allegations
are admitted in the plea.)
4.4
The manufacture, supply and installation of the work would be
completed within a reasonable period of time. (My note: this is

denied in the plea.)
4.5
The defendant would only be paid for the manufacture, supply and
installation of work if it was completed in a proper workmanlike

manner and without any defects. (My note: this is denied in the
plea.)
5.
Subsequent to the conclusion of the agreement, the parties as
represented above and at Bryanston, orally varied the agreement
by
agreeing that defendant would manufacture, supply and install the
following items and for the following amounts (my note: these
are
three additional items, mainly Louvre doors and windows) which the
plaintiff contracted the defendant to install at an additional
cost
of R21 614 excluding VAT.
6.
During the course of the manufacture, supply and installation of the
work and additional items the plaintiff paid the defendant
an amount
of R476 315,79 (excluding VAT). (My note: it is common cause that the
total contract cost came to R702 961,79 (VAT included)
and that the
plaintiff paid the defendant R526 482,64 leaving a balance of R176
479,15, which is the amount claimed by the defendant
in a
counter-claim. The allegations in paragraph 6, regarding the
additional items installed, are admitted in the plea.)
7.
During the course of the manufacture, supply and installation of the
work and additional items the plaintiff paid the defendant
an amount
of R476 315,79 (excluding VAT). (My note: as 1 mentioned, R526 482,64
was paid after the VAT was added, so that this
allegation in the
particulars of claim is also admitted in the plea.)
8.
Notwithstanding the content of paragraph 7, the defendant:
8.1
Failed to perform all its obligations in terms of the agreement, and
8.1.1
manufactured, supplied and installed defective work;
8.1.2
did not carry out its manufacture, supply and installation of the
work in a proper and workmanlike manner. (My note: this
is denied in
the plea.)
9.
The defendant has caused the plaintiff to hire third parties to
complete the performance and remedy the poor and defective
manufacture,
supply and installation of the work. (My note: this is
denied in the plea.)
10.
A fair and reasonable time for the defendant to have completed the
work as agreed was August 2008. (My note: this is denied
in the
plea.)
11.
As a result of the defendant having failed to complete the work
within a reasonable period of time and to perform the manufacture,

supply and installation work in terms of the agreement, the plaintiff
has suffered damages in the amount of R1 644 759,89 (excluding

VAT)...
12.
In regard to the above, inter alia, the plaintiff:
12.1
paid Sterling Glass and Aluminium an amount of R479 521,00 (excluding
VAT) to remedy the poor and defective workmanship of
the defendant
such amount, being a fair and reasonable sum to do so;
12.2
suffered a further loss of R121 390,00 (excluding VAT) being labour
and materials in connection with re-plastering work, waterproofing,

painting, re-tiling and project management at the home in order to
complete all the agreed work of the defendant, the said loss
being
fair and reasonable in the circumstances. (My note: a further
amount
of some Rl.l million was claimed in respect of alleged unnecessary
interest paid on overdraft in order to hold the money
for the
contract available. This part of the claim was abandoned before the
commencement of the proceedings.)"
[4]
As a result of the amount having been abandoned, the plaintiff claims
an amount of R600 9I1,00 (the sum total of the two amounts
in 12.1
and 12.2 of the particulars of claim) plus interest and costs.
[5]
In the particulars of claim, it is not pleaded that the plaintiff
cancelled the contract, neither, for that matter, is it pleaded
in
terms that the defendant committed a material breach of the contract.
In
Amler's Precedents of Pleadings 7th ed the learned author Harms says
the following at 115:
"A
party wishing to rely on the cancellation of a contract because of
its
breach
must allege and prove:
(a)
a breach of the contract;
(b)
that the right to cancellation has accrued because, for example, the
breach was material, ... or that the contract has a cancellation

clause (lex commissorid) and its provisions (such as prior notice)
have been complied with ...
(c)
that clear and unequivocal notice of rescission was conveyed to the
other party (unless the contract dispenses with such notice).
The act
of cancellation must be clear and unambiguous..."
[6]
There was no tender of restitution in the particulars of claim,
neither was there a prayer for declaratory relief to the effect
that
the contract had been validly cancelled. I add that these subjects
were, to a greater and lesser extent, canvassed in correspondence
and
in evidence, but not in the pleadings.
I
have mentioned details about the plea, and the counter-claim is only
based on the outstanding balance on the contract price. The
plea to
the counter-claim refers back to the allegation in the particulars of
claim (paragraph 8) to the effect that the defendant
had failed to
properly perform in terms of the contract and it is pleaded that the
defendant is precluded from requiring performance
from the plaintiff
in terms of the agreement, "owing to the failure by the
defendant to properly perform its own reciprocal
obligations in terms
thereof’.
[7]
So much for the pleadings, from which the nature of the dispute
between the parties can be determined.
[8]
Very broadly speaking (more details will be considered when the
evidence is analysed) the issues and the contesting versions
can
perhaps be summarised as follows: the main witness on behalf of the
plaintiff was Mr David Arthur Day ("Day1’) who
is the sole
member of the plaintiff close corporation and the driving force
behind the plaintiff and this litigation. The name
of Day is also
built into his plaintiff corporation. Day says that soon after the
defendant started with the installation early
in 2008, he noticed
that the work done was below standard and the materials supplied were
of inferior quality. From an early stage,
he complained to Mr Willie
Janse Kruger ("Kruger"), the managing director of the
defendant company, about these negative
observations he had made but
was given constant assurances by Kruger that any defects would be
remedied in good time. This prompted
him to pay the bulk of the
contract price, some R543 000,00, between September 2007 and April
2008, but when he formed the impression
that the defendant was quite
unable to render proper and acceptable performance, he notified the
defendant that he had terminated
the contract, and engaged another
contractor to remove the full installation done by the defendant and
to replace all the items.
The cost, as appears from the quoted
passages from the particulars of claim, came to some R600 000,00,
which does not fall far
short of the original contract price of some
R700 000,00. It is common cause that some of the installations made
by the defendant,
albeit only a few items, were retained by Day and
not replaced in the re-installation process. Day also, initially,
sued the defendant
for an additional amount of some R1,1 million, as
already explained, allegedly flowing from interest and other bank
charges incurred
in order to hold the contract price available for
payment. This portion of the claim was abandoned. As pointed out, the
plaintiff
also refuses to pay the outstanding balance on the contract
coming to some R176 000,00 and representing the counter-claim. Day
did not testify as an expert, neither was I at any stage urged to
consider him as such. It is, however, clear from his evidence
that he
has been involved in property development for some time.
[9]
Kruger, on the other hand, testified that the installation was of
high quality which met industry standards. This meant that
it met
standards set by the South African Glass and Glazing Association
("SAGGA") and also the Association of Architectural

Aluminium Manufacturers of South Africa ("AAAMSA"). Kruger
said that the first installation of aluminium windows made
by the
defendant on site served as a "mock-up" for Day to inspect
and decide whether or not he was happy with the quality
so that the
rest of the installation could be done. According to Kruger, Day gave
his approval, and also had no difficulty paying
the bulk of the
contract price by April 2008. Relatively minor complaints raised by
Day were addressed. The installation was completed
by about May or
June. Thereafter the defendant left the site for about three months
or so, while the other contractors, pursuing
other trades or
disciplines towards completing the luxury home, continued to work on
site and, in the process, the aluminium frames
were damaged,
particularly when contractors ran power leads through the frames and
closed the windows over the cables to keep the
cold out during winter
time. This caused the aluminium frames to become damaged and twisted,
particularly in the lower comers.
When Day complained bitterly about
the alleged poor quality of the workmanship and materials, during
August 2008, Kruger called
for an expert employed by SAGGA and
AAAMSA, one Mr Louis van Wyk ("Van Wyk") to visit the site
with Kruger and Day, and
to express an opinion about the quality of
the workmanship. Van Wyk also testified. He indicated, in his report,
that the workmanship
met industry standards. Kruger said that he made
determined efforts, also through his attorney, to agree with Day on a
"snag
list" so that perceived damages to the installation
could be restored and repaired and the project finalised. He also
suggested
that the matter be referred to arbitration. According to
Kruger, Day was not interested, and said that he would be instituting
action. Kruger denies liability and testifies, in addition, that the
perceived damage to the frames and other portions of the
installation,
although not caused by the defendant, could be repaired
on site at relatively small expense, and that it was not necessary to
remove
the whole installation and replace it with a new one, as
contended for by Day.
The
onus of proof
[10]
I have already referred to what a party wishing to rely on the
cancellation of a contract because of its breach must allege
and
prove, when dealing with the remarks of the learned author Harms in
Amler's at 115.
[11]
At 118, the same author says the following:
"Onus'.
A party wishing to claim damages resulting from a breach of
contract
must allege and prove:
(a)
the contract;
(b)
breach of the contract (for example, that the other party was in
mora), or repudiation of the contract;
(c)
that the claimant has suffered damages;
(d)
a causal link between the breach and damages;
(e)
that the loss was not too remote."
[12]
In the present case, a cancellation was not pleaded, neither was a
breach, in so many words. The plaintiff, however, appeared
to rely on
a cancellation judging by some of the correspondence exchanged, and
what was put to Kruger in cross- examination. On
the weight of the
evidence, the absence or presence of a cancellation appeared to
remain in issue between the parties, judging
by some correspondence,
to which I will refer.
As
to a breach of the contract, this remained in issue throughout.
Indeed, on the overwhelming weight of the evidence, Kruger did
his
utmost to keep the contract intact, by appealing for a snag list so
that the remaining issues could be resolved, and by even
suggesting
an arbitration.
[13]
As to the counter-claim, and although the outstanding balance on the
contract is common cause, the defendant has to prove that
the
outstanding balance is due and payable.
Some
remarks about the expert witnesses, meetings held between them and
hearsay
evidence
(i)The
plaintiffs expert witness Mr Gary Keith Louw ("Louw")
[14]
In August 2011, the plaintiff gave notice of its intention to call
Louw as an expert witness. The notice was given in terms
of rule
36(9)(a) and (b).
According
to the notice, Louw was a qualified architect. It is common cause
that Louw was the architect involved in the design of
the four
cluster homes in Mount Street, Bryanston, one of which is the
property forming the subject of this case. There is a photograph

taken on behalf of the defendant, exhibit "G21", showing
the names of the plaintiff and Garry Louw Architects displayed
on a
notice board outside the property. I have a clear impression, from
the evidence of Day, that he and Louw were close friends
and business
associates.
[15]
According to the rule 36(9)(b) summary of expert evidence, Louw
conducted a visual inspection of the "near complete"

residence at 138 Mount Street on 8 and 9 November 2008. He inspected
the aluminium windows and doors manufactured, supplied and
installed
by the defendant in the particular residence. According to the rule
36(9)(b) summary, prepared by the plaintiffs attorney,
Louw would
make some rather unflattering remarks about the quality of the
installation. According to the summary, Louw was presented
with a
diagramatic schedule of the doors and windows by one Filip van Halter
of the plaintiff close corporation ("Van Halter").
[16]
Attached to the trial bundle, exhibit "A", as exhibits
"A283" to "A423", one finds some 140
photographs
taken in July 2012, after the new installation had been completed,
displaying certain features of the new installation.
These
photographs received no, or very little, attention during the trial
before me.
[17]
Also forming part of trial bundle A, as exhibits "A461" to
"A590", one finds a collection of some 129
photographs
(referred to during the trial, at my suggestion, as "the pink
photos" because of the colour of parts of the
paper on which the
photos were mounted). These "pink" passages on the paper
contain descriptions of alleged defects as
transcribed from a report
by Louw evidently following his November inspection of the
installation.
[18]
These inscriptions, as well as the rule 36(9)(b) summary and any
other reports by Louw clearly constitute evidence by Louw.
[19]
When an attempt was made to lead Day, when giving evidence, to deal
with the evidence of Louw, an objection was offered on
behalf of the
defendant on the basis that the evidence amounted to hearsay. The
reason for this objection lies in the fact that
Louw, sadly, passed
away in March 2012, more than a year before the trial came before me
in May 2013. I heard full argument on
this issue and thereafter ruled
that Louw's evidence amounted to inadmissible hearsay evidence.
I
did this after due consideration of the provisions of
section 3
of
the
Law of Evidence Amendment Act 45 of 1988
. The evidence of Louw is
hotly contested by other experts, in this case in the form of Kruger
and Van Wyk. One of the issues to
be considered when deciding whether
or not to allow hearsay evidence is "any prejudice to a party
which the admission of such
evidence might entail" - see
section
3(l)(c)(vi)
of Act 45 of 1988. In dealing with this issue, the
following is stated by the learned authors Zeffertt and Paizes The
South African
Law of Evidence 2nd ed on p410:
"As
we have seen, the techniques designed for the purpose of detecting
and exposing error can only be properly employed if
directed at the
person upon whose credibility the probative value of the evidence
depends. The hearsay declarant or actor escapes
the full force of
their effective deployment. He or she does not testify in open court
subject to the careful scrutiny of judge,
triers of fact, adversary,
counsel and spectators; there is no oath; no factual platform
established from which to infer a capacity
and an opportunity for
accurate description; he or she does not speak in response to
questions which give shape to his or her testimony
and lend to it
both context and coherence; and, perhaps most significantly, there is
no cross-examination to clarify confusion,
expose dishonesty or
error, or extract information favourable to the adversary which might
act as a counter-weight to the original
information."
Circumstances
under which the prejudice may be offset, suggested by the learned
authors by way of examples mentioned at 410 to 41
1, do not apply to
the present case. In my view it would be extremely prejudicial to the
defendant if its experts had to be subjected
to cross-examination
(like they were) but Louw's evidence had to be accepted under the
circumstances illustrated by the learned
authors. The playing field
will not be equal. This is expert evidence. Under these
circumstances, it will not be possible to properly
and fairly weigh
and consider the opinions of the opposing experts. I also rejected an
argument by plaintiffs counsel that Louw's
evidence can be admitted
in terms of section 34(1) of the Civil Proceedings Evidence Act, No
25 of 1965, which I considered not
to be applicable to the present
situation.
I
did, however, feel obliged to qualify my ruling as to the
admissibility of the evidence of Louw under the following
circumstances:
the "joint minute of experts" is a
nonsensical and unsigned "minute" of a meeting of experts
held in September
2012. It simply states that the experts were unable
to come to any agreement on any of the issues. It flies in the face
of the
provisions of rule 37 and the practice directive applicable in
this division. It was received as part of the record as exhibit "B".

I instructed the legal representatives to arrange an urgent and more
satisfactory meeting between the experts. They came up with
a
handwritten document, which I received as exhibit "C",
which reads as follows:
"With
reference to paragraph 6.13.6 of the practice directive the following
order is made:
1.
the experts of whom notice has been given are requested, having
regard to the photographs contained in exhibit A461 to 590 (my
note:
these are the pink photos), to agree or disagree on the following:
1.1
which damage (if any) was depicted in each photograph;
1.2
what the likely cause of such damage (if any) could have been;
1.3
could the damage (if any) have been rectified or should any items be
replaced, what should be replaced;
1.4
what the likely costs of such rectification and/or replacement will
be;
1.5
to which item supplied by defendant the photograph refers.
2.
Whether the costs contained in the quotation of Sterling Glass and
Aluminium dated 19 June 2009 (my note: this is the contractor
engaged
by the plaintiff to do the replacement installation) are market
related and fair and reasonable costs relating to the terms
contained
therein.
3.
Whether the costs contained in Van Halter's invoice dated 30 April
2009 are market related and reasonable costs relating to the
items
contained therein."
I
made this order before I gave the ruling on the admissibility of
Louw’s hearsay evidence. In the result, the ruling which
I made
was the following:
"1.
The evidence of Louw is ruled to be inadmissible hearsay evidence.
2.
Inasmuch as evidence may be tendered only about the photos taken by
Louw as described in exhibit C and given the provisions of
the order
exhibit C and depending on the nature of such evidence, the question
of admitting or provisionally admitting such photos
only as evidence
will be further considered."
[20]
In the event, the experts were allowed to deliberate about the pink
photos and I allowed evidence about those photos. The weight
attached
to such evidence, and the impact it may have had on the conclusions
which I ultimately arrived at, will be considered
further when the
evidence is evaluated.
(ii)
The plaintiffs expert witness Mr Terence Rahme (’Rahme1’)
[21]
Rahme was the only other witness, apart from Day, that was called by
the plaintiff.
[22]
The rule 36(9)(a) and (b) summary relating to Rahme, is a concise,
two page affair. According to that document Rahme has "certification

in the manufacture of Technal Aluminium in 2009".
Rahme's
employment history is described as follows:
"2.1
Ellesse, Johannesburg - general manager.
2.2
Dynamic Entertainment, Johannesburg - managing member.
2.3
Platinum Voice, Johannesburg - managing member.
2.4
Euroline Group, Johannesburg - director."
It
is then stated:
"3.
As a result of the aforementioned experience, Mr Rahme is an expert
in inter alia the requirements and needs of customers
with regard to
housing developments, and the manufacture, specifications and
installation of aluminium windows, doors and other
related building
products.
4.
At the hearing of this matter, Mr Rahme will testify that on 21
August 2012 he attended at the plaintiffs premises and inspected
the
building works, including the aluminium products in situ and the
removed aluminium products which are on the premises.
5.
He has also inspected the reports and photographs of Mr Gary Keith
Louw, and the expert report of Mr Louw, and agrees with the
contents
thereof and the reasons therefore."
[23]
Where Rahme relied on inadmissible hearsay evidence in the form of
reports of Louw, the weight accorded to his evidence must,
in my
view, be compromised. His rule 36 summary is dated 30 August 2012. He
was, undoubtedly, consulted after the unfortunate death
of Louw. He
inspected the premises including the removed installation of the
defendant in August 2012, more than four years after
the installation
was completed. It is common cause that the frames and other articles
installed by the defendant were removed by
the plaintiff to make way
for the new installation in about March 2009, more than three years
before Rahme inspected those discarded
items, stacked in heaps on the
plaintiffs premises and lying in the open, exposed to the elements.
[24]
The expertise of this witness was not contested by the defendant.
(iii)
The defendant’s first expert witness. Mr Louis van Wvk ("Van
WykM)
[25]
It was not disputed that Van Wyk is an expert as far as the
manufacture and installation of aluminium windows and doors in
the
building industry is concerned.
According
to his employment history, attached to the rule 36(9) notice, he
matriculated in 1965 and worked for Gundle Plastics from
1966 to
1972. From 1972 to 1981 he worked for Shatterprufe Safety Glass Co
(Pty) Ltd and was promoted to area manager in the largest
branch in
Johannesburg. He was then transferred to the Plate Glass Holdings
(Pty) Ltd group and promoted to the position of export
manager of PG
Glass Holdings export division. He was then headhunted by HL and H
Building Suppliers where he worked from 1983 to
1984 when he had to
leave because of a take-over by Federated Timbers. He then went to
Insulation World (Pty) Ltd where his position
became redundant and
then to Kool Aluminium (Pty) Ltd in 1985 to 1986 where after he went
to Wispeco as marketing manager from
1986 to 1995. He then went to
Almar Aluminium Profiles from 1995 to 2001 when the company went into
liquidation and from there
to Henderson Sliding Door Gear where he
was headhunted by the AAAMSA group where he started in 2001 and is
still employed. His
responsibilities include the training of building
inspectors, glaziers and shopfitters in respect of glass and
aluminium to conform
to SANS 10400 - the National Building
Regulations. He also conducts the regulation and inspection of glass
and aluminium installations
done by glaziers and shopfitters on
building sites to ensure adherence to SANS 10400 - National Building
Regulations. He advises
property developers, architects, quantity
surveyors, etc on the correct use of glass and aluminium.
[26]
Van Wyk inspected the Bryanston residence at the request of Kruger on
14August 2008 when Kruger wanted guidance from SAGGA
and AAAMSA in an
effort to resolve the complaints raised by Day and with the view to
signing off the contract.
I
will revert to a brief analysis of Van Wyk's evidence but part of his
rule 36(9)(b) summary reads as follows:
"Based
on Mr Van Wyk’s aforesaid inspection of the aluminium doors and
windows manufactured, supplied and installed by
the defendant in the
residence, Mr Van Wyk came to the conclusions as set out in annexure
LW2. The defects contained in annexure
LW2 are in the opinion of Mr
Van Wyk of a minor cosmetic nature and can be rectified without the
necessity of replacing the windows
and doors.
He
will testify that the work referred to in 3.2 conducted by the
defendant was done in a proper and wormanlike manner and complies

with industry standards, more specifically with the standards
determined by AAAMSA."
I
will deal with the report LW2 when considering the evidence of Van
Wyk.
(iv)
The defendant’s second expert witness. Willie Janse Kruger
("Kruger")
[27]
Kruger is the main official of the defendant, and presumably the
managing director, although I could not find evidence to this
effect.
His expertise was not questioned by the plaintiff. He testified as an
expert.
[28]
According to Kruger's work history, attached, in summary, to his rule
36(9) notice, he matriculated in 1975 and graduated in
1981 at the
Free State university as a quantity surveyor with a B.Sc (q.s.)
degree. He then worked for well-known quantity surveyors
in Pretoria
and Johannesburg, and is a member of the Association of South African
Quantity Surveyors. He is also registered with
the South African
Council of Quantity Surveyors. He also worked for LTA Construction as
a project quantity surveyor and is now
the "CEO and owner"
of the defendant company. He started the company in 1997 and
presently employs 100 people and has
successfully completed 1450
projects, including prestigious contracts for the National Library,
Sanral, the Department of Education,
Civitas and the Department of
Foreign Affairs to name a few. According to the summary, the
defendant is highly regarded throughout
the South African
construction industry and its name is associated with prominent
construction companies including WBHO, Grinaker-LTA,
Group Five
Building, Murray & Roberts and Stefanutti Stocks. The summary
states that during his thirty year working career
in the construction
environment Kruger gained invaluable and in depth knowledge of the
construction industry and quality standards.
(v)
More minutes of more expert meetings held during the course of the
trial
[29]
I have referred to the unsatisfactory minute, exhibit ”B"
and my order exhibit "C",
[30]
Exhibit "D" is a minute of a meeting held during the course
of the trial on 7 and 8 May between Mr Good (who did
not testify and
who was involved with the re-installation), Rahme and Kruger. Van Wyk
was absent. Exhibit "E" is the
same minute, but sporting a
number of notes, in manuscript, evidently by Kruger. There are also
some deletions. There are clear
signs of disputes between the
experts. For example, paragraph 7 states that the experts could not
agree on the reasons for dents
to the framework, scratches to the
framework, broken glass panes (if any) and paint on the framework (if
any). Exhibits "D"
and "E" are of little if any
assistance for purposes of deciding this dispute. Exhibit "F"
appears to be a
computation of what it would cost to replace the
installation if the defendant were found to be liable for such costs.
This did
not receive any attention during the trial. Exhibit "G"
is a rule 36(10) notice containing photos taken by the defendant

after it was authorised by a court order to attend the premises and
take photos. Initially, such permission was refused by the
plaintiff.
The photos are "G1" to "G21
Exhibit
"H" is a handwritten document handed up by counsel stating:
"1.1
The following is common cause between the three experts.
1.2
The amount of R440 772,00 is fair and reasonable if it should be
found by the court that the defendant was liable to replace
all the
frames including glass.
1.3
The amount of R198 645,80 is fair and reasonable if it should be
found by the court that the defendant was liable to replace
the nine
frames mentioned in expert reports."
The
last-mentioned topic received no further attention during the trial,
and the first-mentioned figure is confirmed in the following
minute
exhibit "J", which is a minute of a meeting held on 13 May
2013, four days before the conclusion of this ten day
trial. The
minute records Rahme's opinion that the damage, defects, scratches
and dents that he found in the aluminium frames/doors
during his
inspection in August 2012, three years after the installation was
removed and stacked as 1 have described, was such
that it was
necessary to remove and replace all these items. Exhibit "J"
then records that the defendant's experts disagreed
recording their
belief that repairs could have been made to the windows thereby
avoiding their removal.
The
following is then minuted as having been agreed between the experts:
"
1. That the prices for the replacement of the windows/doors contained
in the Sterling quotation are reasonable and fair.
Furthermore, such
prices would be applicable to all repairs and/or replacements that
are necessitated (my note: this relates to
the charges of the
contractor who did the re-installation).
2.
The parties are in agreement that in the event of the court finding
that it was not necessary to remove all the frames and that
the
defendant is liable for the repairs and damages, that the cost of
repairs thereto would be R117 792,00 excluding VAT and excluding
the
costs of Van Halter. A breakdown of the costs is reflected in
annexure "A" hereto.
3.
The experts further agreed that the quotation consists of the
following elements:
3.1
costs of glass: 35% of the total Sterling quotation;
3.2
costs of aluminium frames: 55% of the Sterling quotation:
3.3
costs of servicing, beading etc: 10% of the Sterling quotation.
4.
The experts further agreed that in the event of the court finding
that all of the windows/doors had to be replaced, and that
defendant
was liable for defects and damages thereto the cost thereof would be
R440 772.00 excluding VAT."
[31]
I now turn to an evaluation of the evidence. The versions of Day and
Kruger have already been briefly outlined and some of
the issues were
highlighted when the expert summaries were dealt with. I propose
concentrating on what I consider to be the main
features of the
evidence.
A
brief analysis of the evidence
(i)
David Arthur Day
[32]
He is the sole member of the plaintiff. He confirmed the oral
agreement which is common cause on the pleadings. It was put
to him
in chief that the defendant denies the alleged term in the agreement
that the defendant would only be paid once the work
is completed in a
proper workmanlike manner and without defects. Day said that that was
indeed the agreement. The first delivery
came in the first week of
March. He was suspicious about the quality of the work from the
beginning and voiced his concerns to
Kruger who said that all defects
would be rectified. He confirmed the progress payments made, the last
being on 4 April 2008. He
made somewhat generalised statements about
"dented frames, scratched frames, daylight through windows,
sticky residual from
tape, bad joints, wrong sized sashes for outer
frames" and so on. It was common cause before me that Day was
not testifying
as an expert. As will appear later, his evidence about
the quality of the work dramatically differs from the evidence
offered on
behalf of the defendant. The "opening sashes"
are the inner frames housing the glass windows that open and close
inside
the outer frames which in turn are cemented into the walls.
Day made dramatic statements such as "not a single window
functioned
as it should have". He wrote very long letters
containing derogatory remarks about the quality of the workmanship
and when
asked questions, both in chief and in cross-examination, he
would make long speeches containing what I consider to be general
statements
about alleged poor workmanship on the part of the
defendant and somewhat insulting and derogatory allegations to the
effect that
the defendant's workers were quite unable to do proper
work. In my view, Day displayed extraordinary levels of aggression
and,
on his own version, his relationship with Kruger, the CFO of the
defendant, was very poor. He said that remedial teams sent to the

site by the defendant to rectify alleged defects, were quite unable
to make any discernable progress. He said that it was necessary
to
replace the whole installation. According to him, only two of the
installed windows were "acceptable". He retained
the
Louvres which went into the generator house. These would from part,
if I understand it correctly, of the additional installations
agreed
on after the original contract was entered into.
[33]
I turn to some documents and correspondence contained in trial bundle
"A", the contents of which was canvassed with
Day during
his evidence and also with other witnesses.
Already
on 17 July 2008 Kruger wrote to Day dealing with some outstanding
issues and requesting a payment which according to him
was due
subject to a 5% retention deduction pending the signing off after
snagging had been completed. The letter refers to a meeting
with Day
on site on 9 July 2008. This meeting would have taken place after the
three month period, referred to earlier when dealing
with some
aspects of the expert evidence, during which the defendant was off
site after completing the installation but while other
contractors
were carrying on with the work and, according to Kruger, damaging
some of the installations and, particularly, the
aluminium frames.
This letter is exhibit "A32". Kruger refers to a certain
frame (D28/54) which had been altered on site
which affected the
quality of the frame and Kruger undertook to replace it with a new
frame by 25 July 2008. As to the folding
doors, also complained about
by Day, Kruger makes the statement that the difficulty lies with the
floor tiling which would have
to be rectified to ensure smooth
running of the folding doors. With regard to what turned out to be
the main bone of contention
between the parties, namely damage to the
window frames, and particularly the frames housing the moving parts
or "openers"
Kruger says the following:
"Openers
Leads
pulled through openers cause serious damage to bottom corners of
window openers. Openers closed with leads still in one corner
also
bends the openers and the friction stays. Even with the best effort,
it is not possible to repair bent openers and frames
to their
original state. Cannot accept responsibility for the quality of the
openers, since damage was caused by others."
It
is, in my view, noteworthy that Kruger raised this argument at such
an early stage. It was clearly not an afterthought. I consider
it
inherently improbable, given the quality of the qualifications and
employment history of Kruger, and the good reputation of
his
business, already referred to, that he would simply fabricate such a
story. It was common cause that leads were indeed run
through the
open windows. In a letter. Day even conceded that this was an
unsatisfactory practice, but he insisted that the leads
could not
damage the frames. I could not find an answer to "A32" by
Day in the trial bundle "A".
I
assume that this letter was followed by the inspection conducted by
the expert Mr Louis van Wyk, already referred to. on 20 August
2008.
I already pointed out that Van Wyk was employed by SAGGA and AAAMSA.
He was called to the site to express an opinion about
the workmanship
in an effort by Kruger to amicably dispose of the contract and any
outstanding complaints by Day. I have already
referred to the letter
written by SAGGA under the pen of one Mr Hans Schefferlie
("Schefferlie") the executive director
of SAGGA, in which
he refers to the inspection conducted by Mr Louis van Wyk. This
letter, "A33", received a great deal
of attention during
the trial. It is dated 20 August 2008, and is addressed to the
defendant, and also sports the AAAMSA logo.
It is convenient to quote
the contents:
":Re:
inspection of installed glazing materials at house David Day - 138
Mount Street Bryanston
We
thank you for your request to inspect the glazing materials installed
at the abovementioned location.
The
inspection has been conducted to establish compliance, or lack
thereof, with the requirements contained in DSS SANS 10400 part
N
2006 third edition (my note: I have already pointed out that this is
a reference to the National Building Regulations).
We
have observed the following:
Glass
comments:
1.
The west facing ground floor window's require back wedges.
2.
The horizontally butt jointed window on the left hand side on the
staircase has an unacceptable gap and must be re-done to match
the
right hand pane.
3.
Mr Day is complaining about the grey woolpile fitted to the
stack-away door to the patio. Black woolpile is available from Messrs

Sheerline.
4.
The right hand stack-away door must be adjusted and the brush pile at
the bottom of the door lowered.
5.
The cover plates on some door handles are out of alignment and must
be levelled.
6.
Pop rivets on the pull handles and scratches must be touched up.
7.
The workmanship is of a high standard and meets industry standards.
8.
It is suggested that a snag list is drawn up in writing by both
parties and signed off on completion.
The
above inspection has been conducted by our Mr Louis van Wyk, who may
be contacted on cell: 0825857341 should any further assistance
be
required.
Yours
faithfully AAAMSA Hans A Schefferlie Executive Director"
The
next day, 21 August 2008, Kruger sent Day a copy of this report
pointing out the statement in the report that the workmanship
was of
a high standard which met industry standards and asking for a further
payment less retention. As far as the six items raised
in the report
were concerned, which require further attention, Kruger said that his
finishing team would be on site on the same
day to attend thereto. He
also undertook to "again service all the frames and opening
sections in order to ensure that all
frames meet our clients'
requirements".
The
result of this was a very strongly worded letter, "A35",
which Day wrote to the defendant and copied to, inter alia,
Gary Louw
Architects and SAGGA, for attention Schefferlic. The letter is dated
3 September 2008. Day stated that the practice of
running leads
through the aluminium frames "whilst not ideal" could not
cause the damage to the frames. He stated that
it was not possible,
in his opinion, for the defendant to "raise the standard of
quality of many of the units to an acceptable
level by work on site"
and that some of the installations would have to be removed and
re-manufactured. At the same time Day
said that he was giving notice
of termination of the contract and reserving all his rights to claim
damages. He said he would be
calling for quotations from "proven
suppliers" to replace the installation and he would be claiming
the costs from the
defendant. As to the contents of the AAMSA or
SAGGA report, "A33", this was rejected out of hand by Day.
He also stated
that there was "complicity between the two
parties and an obvious prior arrangement to minimise and/or dismiss
the majority
of defective issues raised". This is a reference to
Kruger and Van Wyk. This allegation was denied by both Kruger and Van
Wyk as will appear from my evaluation of their evidence. Schefferlie
did respond to this letter on 19 November 2008 ("A56”)

stating that it has become clear that the site investigation
conducted by Mr Van Wyk was not to Day's satisfaction and confirming

that Van Wyk's comments were withdrawn in the circumstances and
expressing regret that "this report was inadvertently forwarded

to you", a nonsensical remark. Van Wyk testified that
Schefferlie never discussed the issue with him and Schefferlie was
not called as a witness by the plaintiff.
Indeed,
Day repeatedly stated that all the other experts he invited to quote
for the reinstallation roundly condemned the work done
by the
defendant. Despite this, not a single one of these alleged experts
was called to give evidence. The best Day could do was
to call Rahme,
who inspected the removed installations, stack- piled on site in the
open and exposed to wind and weather, four
years after the
installation and about three years after the installation was
removed. Moreover, I consider it probable that any
contractor worth
his salt, invited to tender for a lucrative reinstallation like this,
was more likely to criticise the condemned
installation rather than
to praise it, thereby losing the opportunity to conduct the
re-installation.
Day
followed up MA35M with another letter, "A39” copied to the
same parties, and dated 8 September 2008 in which he actually

concedes that Mcertain of the units supplied are of a reasonable
standard, (but) these are largely confined to fixed windows and

internal screens". He then goes on to state that further site
inspections and "further informed opinion" suggested
that
the installation would have to be removed and remanufactured. On a
general consideration of Day's evidence, I am left with
the clear
impression that he was absolutely determined, from the outset, to
replace the whole installation. It was also put to
him in
cross-examination that he was on a frolic of his own when he decided
to "rip 63 windows out of the walls". This
attitude of Day
probably explains his refusal to settle the case amicably or to
properly refer it to arbitration as will appear
from the discussion
hereunder of further correspondence.
[34]
Following Day's last letter, "A39". it appears that a
"telecom" was held by the defendant's attorney with
Day
(and perhaps others) on 9 September 2008. This is referred to in a
letter by the defendant's attorney to Day, dated 11 September
2008
which is "A4I". In "A41" the defendant's attorney
refers to this telecom and makes the following proposal
in order to
reach an amicable and practical conclusion: a site meeting between
Gary Louw Architects, Van Halter and Glen Roodt
(then representing
the defendant as site manager). At the site meeting Gary Louw would
compile a final retention list of items
to be rectified by the
defendant. The outstanding balance of the contract was to be paid
into trust with the plaintiffs attorneys
within a certain time, the
defendant would attend to the retention list, a second site meeting
would be held to tick off items
on the retention list completed to
the satisfaction of the architect and thereafter the architect would
determine the amount due
to the defendant taking into consideration
all defects not rectified or incomplete items and the architect would
certify this amount.
Thereafter payment would be made from the trust
account of the plaintiffs attorneys. The defendant would have a
finishing foreman
available until 10 October 2008 to attend to the
retention list.
This,
what I consider to be a reasonable, offer was rejected out of hand by
Day in a letter of 15 September 2008 ("A43”).
He said that
he was in the process of documenting all defects "together with
independent reports" which would form the
basis of his claim
against the defendant which would probably be far in excess of any
amount which would otherwise have been due
in terms of the "now
cancelled" contract. It seems that Day went ahead without any
delay to get quotations from the other
potential reinstallers. One
such a quotation, "A46". is dated as early as 2 October
2008. On 6 October 2008, the defendant's
attorney responded to Day's
rejection of his settlement offer. T he letter is "A48". I
find it convenient to quote the
contents:
"1.
We refer to your letter dated 15 September 2008. Our client's rights
to reply thereto are reserved to do so at the appropriate
forum.
2.
It is noted that you are not interested in coming to an amicable
settlement.
3.
In paragraph 7 you refer to the 'now cancelled contract'.
4.
We are not aware of such cancellation. Please advise when and how the
contract was cancelled.
5.
Our instructions are to advise as follows:
5.1
It is noted that you intend to claim from our client. Our client
proposes that the matter be referred to arbitration and that
the
arbitrator be agreed between the parties, failing which the
arbitrator be appointed by the Chairman of the Association of
Arbitrators Southern Africa;
5.2
Should you fail to agree to arbitration, our client awaits the
summons.
6.
Our client hereby requests access to the site to take photographs
prior to any remedial work be done by you. Please advise date
and
time, our client requires about one hour.
7.
We wait to hear from you within the next ten days."
[35]
It is common cause that Day refused the defendant access to inspect
the property and take photos. The defendant had to approach
this
court for an order to bring about such an inspection. However, the
inspection and the photographing session only took place
after the
reinstallation.
[36]
On 9 October 2008, in "A50", Day replied to the aforesaid
letter from the defendant's attorney. He again decried
the
shortcomings of the installation and referred to the "very
obvious collusion" between Kruger and Van Wyk. fie said
that his
statement in ”A43” that he was documenting defects and
independent reports with regard to the "now cancelled
contract"
should be seen as cancellation of the contract. In reply to the
proposal to go to arbitration he says the following:
"In
principle we have no problem with abiding by the ruling of a
professional arbitrator but subject to our consulting with
our own
lawyers. Our concern being that our claim against your client will
consist inter alia of a refund of all monies paid to
your client to
date; a refund of all plastering, tiling, partitioning, brick work
and painting costs incurred as a result of having
to remove and
re-install all window and door units; legal and other administrative
costs incurred as a result of our action against
your client,
consultant fees incurred in compiling our case, recovery of
abovementioned security guard costs and compensation for
construction
delay including lost income and holding costs based on current
interest rates. The latter probably being the greater
of the costs
incurred, but all of which we would need to know will fall under the
ruling of an arbitrator failing which if your
client declines to
accept liability we will need to continue with preparation of our
high court action. We will revert to yourselves
on this issue
shortly." (Emphasis added.)
As
far as I can make out, Day or his attorneys never "reverted to"
the defendant on the question of arbitration. In any
event, it is
patently clear that this response did not amount to a consent to
arbitration. Quite the contrary: it seems that an
acceptance of
liability was set as a pre-condition to arbitration. Day's evidence
before me, that he had "no problem with
arbitration" is
rejected out of hand.
As
far as the request to take photos is concerned. Day wrote that he was
compiling a comprehensive set of photographs which would
"presumably,
relieve your client of having to take his own photographs".
[37]
Day testified that Van Halter was his project manager on site
permanently. Included in his damages claim, is also a substantial

account by Van Halter, l or some reason, which was never explained,
Van Halter was not called as a witness. I add that Mr Glen
Roodt. who
was the defendant’s site manager, and who, according to Day,
regularly conceded the flaws and shortcomings of
the installation,
was also not called as a witness by the plaintiff and neither was he
called by the defendant. If I understood
the evidence correctly, he
left the defendant's employ and was somewhere in the Cape when the
trial was conducted. Nevertheless,
one would have expected the
plaintiff to call Roodt to lend his support with regard to the
alleged agreement about the defects.
[38]
Day testified that the plaintiff was a registered VAT vendor, and
actually re-claimed the VAT paid to the defendant from the
Income Tax
authorities.
[39]
Before he was cross-examined, Day confirmed that he tendered back the
removed items of the defendant's installation to the
latter.
[40]
It emerged from the cross-examination that Day initially refused
permission to the defendant to inspect the premises and take

photographs of the installations. This
was
finally authorised through a court order dated 9 September 201 1 and
when the inspection was conducted, about a year later.
Day was
present.
It
was put to Day that, in terms of AAAMSA guidelines, defects on
installations must be judged from a distance no closer than three

metres and the pink photos were taken much closer up. It was put to
Day that many of the frames installed by the defendant were
damaged
because they were covered by cement or Rhinolite because of work done
after the installation. Day disputed this. Day also
denied that
Kruger installed a mock-up at the beginning of the operation for Day
to approve before the rest of the installation
was conducted. His
denial was unconvincing because he said he had ”no
recollection" thereof. In any event, he denies
having approved
any mock-up. This again raises the question as to why, on the
probabilities, if he was deeply disturbed by the
quality of the work,
he would have made substantial payments up to April and also agreed
for further installations to be made.
He agreed that some of the
installations were fitted as late as May and June. It was put to him
that some of the spaces ("reveals")
where the window's had
to be fitted, were only complete for fitting by September 2008. This
he denied. There were many factual
disputes which emerged from all
the evidence: the one is whether or not there was a mock-up at the
beginning of the operation which
Day approved. Another is whether or
not the frames were damaged by the other contractors after the
defendant initially left the
site post installation. According to the
defendant, the damage was caused by spilling cement and/or Rhinolite
on the frames and
also, as 1 have described, by running cables
through the frames and closing the windows over the cables to keep
the elements out.
Day was the only witness on behalf of the plaintiff
that could testify about what actually happened. He was not on site
every day.
His project manager. Van Halter, was not called as a
witness for a reason which remained unexplained. I have already
expressed
the view that I consider it inherently improbable that
Kruger, given his pedigree in the industry and the way 1 judged him
in the
witness-box, would have fabricated all this evidence about a
mock-up, damage caused by cement, damage caused by cables and so on.

In the latter regard, it is also useful to revisit "A32",
supra, in which letter Kruger already wrote to Day on 17 July
that
the frames ("openers") were damaged because of leads pulled
through them. The onus is on the plaintiff. The issues
that have to
be proved by claimant for alleged damages flowing from the alleged
breach of a contract which was allegedly cancelled
are stipulated in
the extracts from Am/er's, quoted above. If the defendant's
performance was so appalling (Day's choice of wording)
and obviouly
below standard, one would have expected Day to jump at the
opportunity to present the facts to an expert arbitrator
when he was
called upon to do so already in October 2008 ("A48" supra).
Instead, he opted for expensive and aggressive
litigation,
culminating in a ten day trial five years after the event and after
the passing of one of his expert witnesses, architect
Louw'.
When
cross-examined, Day was not prepared to make reasonable concessions:
it was put to him that Kruger offered to do the final
snagging but
wanted the damage caused to the frames by other contractors first to
be sorted out. Day denied that such a conversation
took place, yet
the version put to him is corroborated by what is stated in the
letter MA32" already written to him on 17
July 2008 and
recording what was discussed at a meeting with Kruger on 9 July 2008.
It was put to him that Kruger would testify
that he was prepared to
remedy any defects and do snagging, but that Day would not let him
and threatened to sue him for RI,5 million.
This was also denied. At
times, in cross- examination. Day conceded that at least some of the
indoor frames presented no problems
and thereafter his attitude
hardened and he said not one of the frames was acceptable. The same
applied to his evidence that not
one of the windows opened and closed
properly. It was also put to him that the frames were properly
protected when they were transferred
to the site. This he denied,
despite conceding that he was not an expert on transporting frames.
When it was put to him that the
defendant had done more than 1600
installations without any of the problems alleged by Day, he said
that he also wondered why the
installation was so bad and he had been
told that the defendant may have used large quantities of waste or
inferior material to
do the installation. This was a new angle, not
mooted anywhere in earlier pleadings or correspondence. Other factual
disputes which
emerge from Day's cross-examination included his flat
denial of the following propositions put to him: that he initially
had no
complaints about the frame sizes, that the joints of the
frames were perfectly done and that the type of frame was approved by
him. It was put to him that there were no plans in place to isolate
areas like those where aluminium frames had already been installed

for protection against the activities of other contractors. His
answer was that there was nothing to protect the frames from other

than taking due care. It was put to him that there were no
co-ordination meetings or fixed schedules. This he denied, stating
that Van Halter was managing the project on a full time basis. As I
indicated, Van Halter was not called to testify. Another major

factual dispute which emerged from the cross-examination is the
question whether or not the perceived defects (also the damages

caused by the contractors on the defendant’s version) could be
repaired on site for a fraction of the costs flowing from
a complete
re-installation. Day. not testifying as an expert, insisted that a
re-installation was necessary but, as I pointed out.
Day never called
any of the experts invited to tender for the re-installation to
support him on this point. The version of the
defendant is that the
defects could be repaired on site.
[42]
For the reasons I have mentioned, I was not impressed by Day as a
witness.
(ii)
Terence Michael Rahme
[43]
I have dealt with his qualifications and employment history.
[44]
I have mentioned that he was only called in to testify as an expert
after the unfortunate passing of Architect Louw. He only
inspected
the frames installed by the defendant approximately four years after
the installation was done and approximately three
years after the
frames and the rest of the installation were removed and replaced.
His inspection was conducted in August 2012.
He inspected stacks of
the removed frames piled on top of each other on the premises of the
plaintiff and exposed to the elements
for that period of at least
three years.
[45]
He relied, to some extent, on the report and other notes of Architect
Louw, which I ruled to be inadmissible hearsay evidence.
[46]
Rahme said that the damage he saw on the frames was, in some cases,
consistent with bad milling (cutting) exposing the raw
aluminium.
There were dents, scratching and "manipulation” to the
frames. He expressed the view that all the windows
he inspected had
to be removed. He confirmed that the amount of R117 792,00, mentioned
in exhibit ”J", is the amount
of damages visible from the
pink photos, if found to have been caused by the defendant, which
would represent repair work that
could be done on site. The agreement
between the experts was that if it could have been repaired on site,
it would have cost RI
17 792,00. It, however, remained in dispute
between Rahme on the one side and Van Wyk and Kruger on the other
side whether the
repairs could be done on site or whether a
re-installation was required. The objective position is that Rahme
only inspected the
damaged stock-piled installation items four years
down the line whereas Kruger did the actual work. Kruger is
supported, in all
material respects, by Van Wyk. On the available
evidence, and under these circumstances.
I
am unable to find on the probabilities that the version of Rahme is
to be preferred ahead of that of Kruger and Van Wyk.
[47]
As to the actual damages to the frames, Rahme testified that the
dents were all in the same areas namely the corners of the
sash
frames. According to Rahme this was caused by "overcrimping"
with a tool, applied with too much pressure and causing
the aluminium
to cink (bend). As will appear from the evaluation of the defendant's
evidence, this statement is hotly disputed.
Rahme testified that the
frames were scratched and he postulated that the scratching was
caused during the transportation process.
According to him, the
scratches would necessitate the removal and replacement of all the
frames. The milling (cutting of the aluminium)
was also not properly
done and left gaps which exposed the raw aluminium. This also could
not be fixed on site and had to be removed.
The Mitre joints were
inconsistent and not closing to 45° so that daylight was shown
through the joint and this also had to
be removed and could not be
repaired on site. The glass could not be re-used. A new manufacturer
would not be able to size the
frames around the existing glass.
[48]
As to the value of the salvage, Rahme testified that the glass now on
site can be utilised because if the existing glass is
used for a new
design it can be cut into smaller pieces to suit a new schedule. A
new designer could design the frames first and
then cut the glass to
fit. Rahme, if I understood him correctly, conceded that in such a
case there would be a high volume of wastage
due to cracks. Rahme
then referred to the agreement between the parties (exhibit "J")
that 35% of the total of the Sterling
quotation was attributed to the
cost of glass. Rahme said this represented the figure of
approximately R154 000,00. According to
my calculations, with the
Sterling quotation (without VAT) coining to R479 521.00 ("POC3"
to the summons) 35% thereof
would come to R167 832,00, To this Rahme
wanted to add R25 000,00 as scrap value for the aluminium frames.
On
Rahme's approach, the salvage could look like this:
35%
of the Sterling quotation representing glass R167 832,00
50%
thereof if allowance is made for high wastage or other contingencies
such as that the glass is never used
in
another design R 83 916,00
plus
salvage value of aluminium R 25 000,00
TOTAL
R108 916,00
This
evidence of Rahme was not challeged in cross-examination, although
Kruger said in his evidence that the salvage had no commercial
value.
Where the experts did not deem it appropriate, it seems, to assist
the court by dealing with the salvage value, I must make
the best I
can and adopt a robust approach. Such an approach yields the figure
of R108 916,00 for the salvage as tabulated above.
[49]
From his cross-examination, it appeared that Rahme did not deem it
necessary to take further photos of the allegedly damaged
frames when
he conducted his inspection in August 2012. about four years after
the pink photos were taken. On a general consideration
of his
evidence, it appears that he relied rather heavily on the architect's
report of the late Mr Louw. This, as I have said,
has been ruled to
be inadmissible hearsay evidence. Rahme took no notes during his
inspection of August 2012. He was also not present
when the frames
were removed by the plaintiff in March 2009. He conceded that the
frames would have been damaged (particularly
the outer frames) when
removed from the walls. According to him, he "ignored" this
outer frame damage for purposes of
his evidence. He clearly could not
know to what extent the frames were damaged during the removal
operation or during the period
March 2009 to August 2012 when stacked
outside in the elements. Under these circumstances he certainly could
not give authoritative
evidence, in my view, on whether, and to what
extent, the frames were damaged after installation by the other
contractors as already
complained about in writing by Kruger in July
2008.
Rahme
conceded that the preparation of a proper snag list is an important
step in a dispute resolution process in the building industry.
It is
a crucial step to inform the defendant what to attend to and there
must be proper communication between the parties. In this
case there
was no snag list. It is quite clear that the defendant made bona fide
attempts to persuade Day to agree to the preparation
of a proper snag
list but Day rejected this offer. This appears from the contents of
"A41" which is a letter of the defendant's
attorney, supra,
proposing such a snag list for managing and final signing off by
Architect Louw. Indeed, when Day was still testifying
in chief, and
dealing with "A50" and "A51" (already dealt with
and the letter in which he effectively turned
down the request for
the matter to go to arbitration) he emphatically stated that he was
not prepared to settle the case.
[50]
When Rahme was cross-examined about "A33". the Van Wyk
report, supra, of 20 August 2008. he effectively conceded
that the
six items listed therein which, according to Van Wyk, represented the
complaints offered by Day during his inspection,
could be repaired on
site. Rahme used exhibit "I" (a 38cm aluminium frame fitted
with an inner or moving sash) to demonstrate
how a damaged segment of
a frame can be replaced by another. The new segment gets cut in a
factory and then fitted on site. Rahme
expressed reservations about
whether the electric cables or leads could damage the aluminium
frames. It was put to him that the
damages in question were caused to
wider frames and not a smaller frame like exhibit "I". Van
Wyk's testimony was to
the effect that the wider, or longer, the
frame the more likely the damage or twisting that may be caused by
running a cable through
the frame and thereafter closing the window
on the cable. It was put to Rahme that the defendant is a registered
AAAMSA contractor
and the defendant’s frames have been
extensively tested in terms of AAAMSA's standards for quality and
particularly for water
penetration, strength and air penetration.
Rahme offered no comment on this. Returning to the salvage value,
Rahme conceded that
the aluminium frames could not be used in another
project, but restated his evidence that they could be sold to a scrap
dealer
for an estimated figure of R25 000,00. This was never
disputed. He conceded, by referring to the stack-piled removed
frames, that
if they were to be moved and stacked against the wall
there would be scratch damage. He conceded that without the I.ouw
report
it may have been more difficult to express a view on the
matter. He had this report available when he did his August 2012
inspection.
In responding to the proposition put to him that the
frames were damaged by other contractors after the defendant had left
the
site, he said if the frames had been properly protected by the
factory they would not get this type of damage even if the builders

worked around it. He felt that the defects were the result of poor
workmanship and poor site installation. He conceded that he
was never
on the site before August 2012.
[51]
After the evidence of Rahme, the only expert witness called by the
plaintiff, I was left with the impression that he simply
could not do
enough to support the plaintiffs case. He had the disadvantage of
only arriving on site four years after the installation
had been
made, and three years after it had been removed and stacked against a
wall. He had to rely heavily on the evidence of
the late Architect
Louvv. He took no photos at his inspection, neither did he make
notes. He made some telling concessions, to
his credit, in
cross-examination.
(iii)
Louis Donald van Wyk
[52]
His expertise was not challenged. I have already referred, at some
length, to his impressive work history in this particular
industry.
His organisations, AAAMSA and SAGGA. have guidelines which work to
the SA National Standards contained in the DSS SANS
10400 and the
various parts thereof to which I have referred, l or example, part N
deals with glazing.
[53]
Van Wyk testified about his 14 August 2008 inspection summarised in
the report, "A33". of 20 August 2008, the contents
of which
have been quoted. He addressed
the
concerns raised by Day during the inspection. These are referred to
in the report ("A33"). Before me. Van Wyk went
through all
these items. He expressed the belief that a snag list should have
been drawn up. The installer should have been given
the opportunity
to rectify and correct what Day was unhappy with. That is the normal
contractual procedure. The problems listed
in "A33" are
considered as small problems. They could all be fixed on site. When
he conducted the inspection, the glass
and aluminium had been
installed and further finishing still had to be done. The DSS SANS
refers to the National Building Regulations,
which ensure that
correct procedures and quality are enforced in the building industry.
A Draft Standard ("DSS") was
approved as a fully fledged
Standard at the end of 2008/early 2009 by the Department of Trade and
Industry under which the South
African Bureau of Standards falls. Van
Wyk was of the view that the standards were met, and safety glass
installed in the correct
areas. The issues at hand arc quality
issues. Van Wyk considered himself qualified to pronounce on whether
these standards were
complied with.
[54]
In cross-examination he said that he conducted the inspection with
Kruger and Day and the latter pointed out the problem areas
which are
dealt with in the report "A33M. It was put to Van Wyk. somewhat
surprisingly, that he refused to allow Day to accompany
him and
Kruger on the inspection. This was strongly denied. The witness said
without Day he would not have known what the complaints
were.
[55]
He was referred to the AAAMSA guidelines (paragraph 1.6.3) to the
effect that exposed aluminium ought to be protected by means
of
adhesive tape against mortar droppings and other non-mechanical
damage. He conceded that what he inspected had no protective
covering
on. On the other hand, of course, it should be remembered that Day
stated emphatically that there was no question of cement
having been
dropped on the frames.
[56]
He conducted the inspection as a representative of both SAGGA and
AAAMSA. He compiled the report "A33". It was signed
by
Schefferlie as the executive director.
When
asked how many windows he inspected, he said he inspected those
pointed out by Day. In this case there were two windows. I
add that
Kruger testified that Van Wyk inspected all the windows but only
dealt with the two flowing from the complaint offered
by Day. Van Wyk
said he made notes at the inspection and they were available at his
ofilcc in Midrand. This issue was not pursued
by the cross-examiner.
He spoke about the three metre test, supra, for the detection of
flaws in an installation. The workmanship
which he declared to meet
industry standards (paragraph 7 of "A33") were standards
according to the guidelines published
in the AAAMSA book. The issues
raised in "A33", paragraphs 1 to 6, were those raised by
Day. I le does not recall that
Day raised any other issues. He
suggested, in paragraph 8, that a snag list should be drawn up. This
was necessary to try to resolve
whatever issues there were and
standard contract procedure. It is also a condition to be found in
the Master Builders draft agreement.
The same applies to the Joint
Building Construction Contract. The snag list should be drawn up by
both parties, or by the aggrieved
party, and should be in writing to
avoid later arguments. When asked whether it was reasonable for an
aggrieved party to give the
other party three opportunities to remedy
the defects (as claimed by Day) the witness said that it depended on
the severity of
the problems and the size of the contract. He said
Day was "abusive" about the quality of the workmanship. He
invited
Day to point out what the problems were whereupon Day
mentioned the six points reflected in "A33". Where he dealt
meticulously
with the six points, and where Day never denied having
pointed out those perceived problems, I consider it inherently
improbable
that Van Wyk would have omitted any other complaints from
his report, had such additional complaints been raised by Day.
Van
Wyk admitted that Day invited him to inspect other projects involving
other contractors for comparative purposes and that he
declined to do
so. He said that whatever an acceptable standard may be is in the
eyes of the beholder. Three different spectators
may have three
different views on what is acceptable and what is not. The purpose of
the visit was to assist Kruger in trying to
resolve the complaints.
Kruger is one of their members. They assist w here possible. When
pressed on his refusal to go to inspect
other sites, he said that had
he gone there he was sure that he could have found faults in those
installations as well. In addition,
he suggested the snag list, for
reasons already mentioned. He insisted that when he does these
inspections in the capacity as the
representative of SAGGA or AAAMSA,
the inspections are done on a totally unbiased basis, irrespective of
whether a member or a
non-member is involved. The integrity of the
organisations is at stake. He was there to assist Kruger and to
protect the integrity
of the two bodies. He denied any collaboration
or complicity with Kruger. He said that members would not be
protected where they
offered poor workmanship. As I already pointed
out, Scheffcrlie never discussed the issue with him, even after he
"withdrew"
the report. This 1 already mentioned in some
detail. He insisted that the work was of a high standard when he
conducted the inspection
and as stated in "A33". This state
of affairs may have changed if subsequent damage took place when the
windows were
removed or after his inspection. Looking at the pink
photos, all the workmanship can no longer be described as having been
of a
high standard.
I
le strongly disputed the evidence of Rahme that some of the dents on
the frames would have been caused by "overcrimping".
He
said that crimping is done on a special machine. He demonstrated his
evidence by referring to exhibit "1". The tool
used for the
crimping does not come into contact with the frame. There is no
possibility of "overcrimping" because the
special tool is
used. Overcrimping can only come into the cquasion if it is done by
means of a hammer and a punch, which was not
the case here. The
defendant has a production line set up which Van Wyk has seen and he
has a proper tool or "crimping jig".
The crimping jig
cannot cause over crimping because it is pre-set. It is pre-set by
the manufacturer of the crimping tool.
[57]
In cross-examination it was put to the witness that the window frame
is extruded aluminium. The witness confirmed that the
aluminium
arrives in a billet (like a block) and under pressure it is put
through a dye to get different shapes. Heat is involved.
The
extrusion process cannot damage the aluminium because of quality
control at the extrusion process and at the manufacturer.
What was
extruded goes out on a run-out table and then stretched and cut to
length and put into an "ageing oven" to ensure
correct
hardness. The stretching process should ensure that there are no
kinks or dents in die product. When asked whether the
aluminium can
possibly be damaged in the extrusion process, the witness,
emphatically, said no. Controls at the extrusion process
are
extremely tight.
[58]
With reference to some of Day's complaints about sliding doors not
functioning properly, the witness, referring to paragraph
4 of "A33",
said that the tiles were uneven. Measurements were taken in the
presence of Kruger and Day during the inspection.
The doors were
approximately 2mm out of square and showed daylight underneath. The
remedy, relating to the adjustment and the lowering
of the brush
pile, appears from paragraph 4 on "A33". There are
adjustable rollers on sliding doors and stack-away door
systems. This
can be done on site.
[59]
On the contentious issue of damage caused to the aluminium frames by
passing electrical cables through them, the witness was
confronted
with the evidence of Rahme to the effect that this cannot happen. The
witness disputed this and said that he had peronally
seen this happen
on building sites. It depends on the width of the window . In this
case they were top hung windows with the hinges
at the top. The wider
the window the more the likelihood of damage to the frame. The wider
the window, the greater the possibility
of achieving a twist. He has
actually witnessed this. If you force the window to close over the
cable you can cause twisting or
deformation. The damage is more
likely to be caused on the sash frame (the moving part) because the
fixed part is stronger. The
witness demonstrated his evidence by
referring to exhibit "1". The frame of the sash of exhibit
"1" was only
about 20cm long. No damage was caused when the
lead was run through the frame because the window was not forced
closed. In the
demonstration, the particular cable was not cut
either. The witness said that windows of about 900mm (such as some of
those fitted
in the particular house) could possibly have been
deformed or twisted under these circumstances. During his inspection
Kruger showed
him cables through windows where such damage could have
been caused. He did not discuss it with Day at the time because he
was
asked to look at the complaints which Day raised.
[60]
In re-examination, he was confronted with a concession he had made to
Day that, in present times, the absence of skilled labour
and the
dropping of standards may serve as mitigation for poor workmanship.
What he meant with "poor workmanship", in
this sense, was a
lack of attention to detail, something that could be remedied on
site.
[61]
Importantly, the witness said that the flaw's visible on the pink
photos, taken in November 2008, were not comparable with
what he saw
of the installation during his inspection in August 2008. At that
stage, the frames were reasonably clean and, on a
general overview of
the pink photos, one sees damage which appears to have been caused
since his inspection and some of the frames
were full of cement and
Rhinolite.
[62]
The evidence of this witness strongly corroborated that of Kruger on
a number of material issues.
[63]
I considered Van Wyk to be an impressive and sincere witness.
(iv)
Willie Janse Kruger
[64]
He also testified as an expert, and his expertise was not placed in
dispute.
[65]
I have dealt, at some length, with the qualifications and
professional history of this witness. His company was referred to
the
plaintiff by a company which supplies aluminium profiles called
Fentech. The quotations he submitted were approved and that
is how
the agreement came about.
[66]
The installation started early in 2008 in the garage area. This was
the first area which was ready for installation, with the
plastering
having been completed.
[67]
They installed two windows, one opening window and a fixed U-shape
window. It is standard practice for all projects, whether
commercial
or residential, to start off with a "mock-up" installation
which can always be referred back to for colour,
quality and so on.
Before preparing the quotation, he met Day to agree on the type of
frame system, the powder coating colour,
the type of glass and in
this case the issue about the opening sash of the windows. The
standard w as based on the AAAMSA guidelines.
The sash issue entailed
the fact that Day wanted the defendant to use a heavy duty opening
sash frame and he quoted accordingly.
After the mock-up was
completed, he contacted Day, and they met on site to look at the
installation. At this meeting he asked Day
to look at the installed
products and confirm that he was happy with the product installed
including the powder coating colour
and the glass concerned. Day
confirmed that all was acceptable and that the defendant could
continue with the rest. As already
indicated, I find this evidence
convincing and I accept it. In my view it is inherently improbable
that Kruger, given his background
and his standing in the industry,
which is undisputed, would fabricate the whole version about the
mock-up and what it entailed.
The evidence of Day, who first said
that he had "no recollection" of the mock-up and later
denied the existence of the
mock-up altogether is unconvincing and
improbable.
[68]
According to Kruger, the installation got underway without any
problems. He saw Day on site from time to time and spoke about
the
installation. Small details were mentioned. Nothing major. When the
internal sliding doors were installed there was an issue
about detail
for the locking stiles on the wall where the door slides into. When
he met Day on site, they would discuss the installation
and no real
problems or issues were raised. Of course, this is another
contradiction of Day's evidence who said that he was upset
and
concerned from the start and that he raised serious complaints right
from the beginning. I already expressed the view that
this evidence
of Day is inherently improbable, considering the fact that he made
substantial payments (the bulk of the contract
price) up to April and
that he also engaged the services of the defendant to do additional
work.
[69]
The first frame that became an issue was a U-shaped frame in what
Kruger remembers to be the braai area. Day was not happy
with the
configuration (that is the shape) of the window and asked Kruger to
change it which was done. The initial configuration
was in accordance
with the agreed schedule. The additional work that had to be done was
at the gate house area ("the transformer
room") involving
louvres and a glass screen and doors. From what Kruger remembers,
once the gate house installation was complete,
most of the
installation in the main house had also been done. It must constantly
be borne in mind that all the witnesses before
me gave their evidence
about live years after the event. The installation of the main
stacking door had to be held in abeyance
because the defendant had to
wait for the plastering to be completed in that area. They had to
wait for about three to four months.
[70]
Kruger testified about the contentious issue of the protection of the
frames. All the frames leave the factory with protective
tape on both
sides. The tape remains on the frames while installation takes place.
One cannot leave the tape on the frames for
months on end because the
glue will damage the powder coating. Once the frames arc installed,
it is better to remove the tape because
it is easier to clean cement
droppings from the frame without the tape. The tape would also not
protect the frames from impact
damage or damage caused by cables
running through the openers. The best form of protection is to
co-ordinate the works on site
to ensure that you do not have wet
trays, trowels and plaster work in the completed areas. As far as the
completed areas are concerned,
protection on site is a major issue in
any operation. The way that is done is by co-ordinating the work by
having the plaster work,
tiling and the first coat of paint completed
by the time you install the window. Then you have a minimum amount of
finishing around
the windows and those finished areas will then be
isolated or locked up. Site co-ordination and meetings in this regard
are crucial.
In this case the finished areas were not locked up or
isolated. It is common cause that work carried on around the windows
after
installation and that leads were run through the windows.
[71]
Kruger testified about the events which led up to the Van Wyk
inspection. When he met Day on site in about August 2008 the
latter
was unhappy about the quality of the frames. They walked through the
house where Day said repeatedly that he had no problem
with the
internal frames but he was unhappy about the external frames. As far
as Kruger could remember, there was a problem with
the frame in the
library which had been damaged during installation and this was
replaced by the defendant. Day also raised the
issue about the
openers (the same as the sashes or the moving parts or windows inside
the main frames). The bottom corners were
bent and when an opener was
closed, it did not seal properly and light was coming through. Kruger
responded that these openers
were damaged on site and there were also
quality issues for example some of the folding doors were not
locking. There were areas
of poor fixing of frames to walls and one
or two lock stiles had to be replaced. A lock stile is the vertical
member of the door
frame housing the lock. Kruger asked Day to
co-operate with the drawing up of a snag list window by window. In
that way they could
assess the extent of remedial work and finishing
to be done and also come to an agreement and work out a program to
complete the
work. Day's response was that he was not interested and
would sue the defendant for Rl,5 million. I add that Day denied this
part
of the evidence when it was put to him in cross-examination.
Again, given the weight of all the evidence, I find it inherently
improbable that Kruger would fabricate a version like this. On his
own version, as I have indicated, Day said that he was not prepared

to settle the case. It is clear from all the evidence that Day
adopted an uncompromising and aggressive attitude throughout. 1
have
already touched on
this
subject. Day made insulting and derogatory remarks about the quality
of the defendant's performance. What he failed to do,
was to present
any convincing and credible evidence to support the stance that he
adopted. As I already mentioned, it is clear
that Day was absolutely
determined, from the beginning, to replace the installation. Of
course one cannot be sure, but it occurs
to me that what may have
inspired Day was a desire to get a new' installation with a different
character. Kruger's evidence (not
challenged in cross-examination)
was that, when he finally obtained permission from the court to
inspect the site post re-installation,
he noticed marked changes from
the installation of the defendant: the gloss charcoal powder coating
was now- replaced with mat
finish. Square headings became splayed
headings. Heavy duty opening sashes were replaced with light duty
sashes. There was some
changes to the configurations of the frames,
for example windows at the roof level had been changed from windows
with openers to
fixed pane windows. Moreover, Day's denial that he
threatened to institute action is gainsaid by the fact that he indeed
instituted
this action as early as August 2009 already.
[72]
I return to Kruger’s evidence about the events leading up to
the Van Wyk inspection. When Day threatened to institute
action,
Kruger suggested to Day that they should consider getting an opinion
from AAAMSA to see if they can find a way forward
based on an expert
report. This Day agreed to. In the event. Van Wyk also recommended
the snag list as is evident from his report,
"A33", and his
evidence. According to Kruger, the rejection by Day of this proposal
was unfortunate because the final
finishing could have been done on
site to the satisfaction of all concerned. The bottom corners of the
openers (the frames of the
sashes or openers) were damaged by
electrical cables over the three to four months already referred to.
Kruger also testified,
as already mentioned, that the workers
probably pulled the cables through the windows and closed them
because of the harsh w inter
conditions. Nevertheless, Kruger did not
regard the damage to the frames as a major issue. One could cut and
crimp new openers
from the job cards and replace them on site with no
disruption in the same manner that the defendant could repair,
replace or fix
anything else that was an issue. Kruger reminded the
court that the defendant manufactured these frames and can therefore
repair
them as well. There is nothing that cannot be repaired on the
frames. It is not a welded product like steel. It is an assembled

product. Any part, frame or style can be cut from the job card and
replaced on site. If an outer frame is damaged by whatever cause
or
person, it may have to be removed from the wall but it can be
re-installed on site. I find this evidence compelling. It comes
from
the manufacturer himself. It is supported, in large measure, by the
evidence of Van Wyk. Rahme made telling concessions on
this
particular subject. All this militates against a conclusion that a
total re-installation was indicated or justified.
Of
course, it does not follow from a finding that the remedial work
could have been done on site that the defendant must be held
liable
to pay the amount of some R117 000,00 (mentioned in exhibit ".!")
which the experts agreed it would cost to remedy
defects gleaned from
the pink photos. As appears from the authorities quoted, the
plaintiff has to prove that the defendant caused
such defects or
damages. Of course, this allegation is hotly disputed by Kruger and
the supporting evidence of Van Wyk. In my view,
the plaintiff failed
to prove a causal link between the agreed damages of R117 000,00 and
the conduct of the defendant.
[73]
As to the Van Wyk inspection itself, Kruger testified that a fair
amount of time was devoted to the stack-away door mentioned
in
paragraphs 4 and 5 of "A33". Van Wyk took measurements of
the door and the overall opening size and pointed out to
Day that the
floor is sloping down from left to right when one stands on the
inside. This is not the fault of the defendant. The
remedy is neatly
verbalised in paragraph 4 of "A33". According to Kruger,
the three of them proceeded to walk through
the house. They inspected
"a lot of windows". He cannot remember if they inspected
all the windows. Van Wyk repeatedly
asked Day to point out errors in
the installation. The items pointed out by Day are those listed in
"A33". Kruger pointed
out to Van Wyk that the damage to the
corners of the openers was due to electrical cables. Van Wyk said
those were issues relating
to damage and not workmanship and he would
not include it in his report.
[74]
Kruger conceded that he was not interested in visiting other sites as
suggested by Day. lie felt that the required standard
was determined
and agreed with the
mock-up.
The purpose of the mock-up was specifically to establish the quality
of the finish and the other aspects of the installation.
[75]
In September 2011 the court granted an order authorising the
defendant to inspect the site, although this was well after the

re-installation. A small part of the installation, mainly the agreed
extras, was not removed. The windows that were removed were
stacked
on top of each other. He took photographs. "G11" is an
example. The joints made on the frame visible on the photo
during the
defendant's manufacturing process are still near perfect. As to the
salvage, Kruger testified that the frames have no
commercial value.
They can be sold as scrap but the return from such a sale would
basically cover the costs of removal. The glass
is also not worth
anything if used on another project. This is in contrast to what
Rahme said about the salvage value. The evidence
of Rahme on this
subject was not challenged in cross-examination. In the circumstances
I must be slow to reject the evidence of
Rahme. See Small v Smith
1954 3 SA 434
(SWA).
Kruger
testified that if repairs were done on site to the frames, as he
suggested, the glass could have been re-used. This could
have been
done even if Day had decided to employ another contractor to do the
work because they would have worked off the job cards
for these
particular frames. All the work could have been done on site. The new
frames installed is also exactly the same "casement
38 system"
which is the most common system used in the market.
[76]
I have already dealt with the changes to the characteristics of the
new installation as compared to the old installation done
by the
defendant.
[77]
Significantly, Kruger testified (as did Van Wyk) that there is a vast
difference between the quality of the installation depicted
on the
pink photos and what was seen during the last visit of Kruger to the
site pre-re-installation, which was on the occasion
of the Van Wyk
inspection. On the pink photos, many of the frames were now damaged
by cement, rubbers were missing and headings
were loose or missing.
Some of this damage was illustrated by Kruger in his evidence by
referring to some of the pink photos. One
example is "A466".
[78]
Kruger repeated his denial that the defendant caused the dents and
scratches on the frames. The photos show evidence of cement
on the
frames and in the joints. When one removes the cement or the
Rhinolite, scratches are caused on the frames. When cement
is dropped
on the frame, it normally sticks on the beading. This problem could
have been resolved by changing the beading at a
relatively small
cost.
[79]
Kruger was subjected to lengthy and intensive cross-examination. In
my view, he was not in any way discredited.
[80]
He was confronted with the fact that Schefferlie "withdrew"
the Van Wyk report. I have dealt with this issue. Kruger
pointed out,
correctly in my view, that the fact
that
the report was "withdrawn" does not detract from the
details therein contained. Schefferlie never contacted Kruger,

although the defendant is a member of AAAMSA and, for that reason,
also of SAGGA. As I already pointed out, Schefferlie also never

discussed the subject with Van Wyk.
[81]
Kruger could not issue a so-called "AAAMSA certificate" to
the plaintiff because of Day's actions in refusing to
see through the
contract to finality. The AAAMSA certificate confirms that the
glazing and the rest of the installation were done
in terms of the
standards set in the National Building Regulations. The glass
installations are also edged with a stamp containing
the "signature"
of the defendant once the contract is signed off. This could not be
done in the present instance for
the same reason. Kruger said that
the final payment is due once the snag list is complete and the
contract signed off. Again, this
could not be done because of the
actions of Day. Generally, the owner would also be entitled to a 10%
retention until the project
is satisfactorily completed.
[82]
Kruger, in cross-examination, also illustrated visible damage to the
openers by referring to some of the pink photos. An example
is "A544"
where damage is visible to the left corner which, according to
Kruger, was caused by a cable. There is no damage
to the transon
which is the horizontal rail in the centre of the frame. Another
example is "A545". Kruger said on more
than one occasion
that his company does not make frames that look like that. In other
words, the defendant does not manufacture
damaged and twisted frames.
This evidence, on the probabilities, given the standing and
background of the defendant, must be correct.
Referring to the pink
photos. Kruger also said that if a glass and aluminium expert (and
not an architect like the late Mr Louw)
had compiled the photos and
introduced the comments dealing therewith, he or she would probably
have stated what the required remedial
action would be. Taking MA45"
as an example, remedial action would probably have been to replace
the sash frame. This would
have made it clear that only the sash
frame had to be removed and not the whole frame including the glass.
Kruger also said, as
did Van Wyk, that a larger sash or frame will be
more likely to twist and become deformed if closed on a cable. If you
force the
opener on the cable you will damage the transon as well.
The pink photos also demonstrate that even in cases where the sash
frame
is damaged and twisted, the joint manufactured by the defendant
is still in perfect condition.
[83]
In cross-examination, Kruger insisted, as he did in his chief
examination, that, at his meeting with Day on site before the
Van Wyk
inspection, he suggested the preparation of a comprehensive snag
list, frame by frame, and a program to attend thereto.
He insisted
that Day said that he was not interested but would rather sue for
Rl,5 million. That is when Kruger proposed that an
AAAMSA expert be
consulted for an opinion. 1 have already expressed the view that it
is inherently improbable that Kruger would
have fabricated this
evidence.
[84]
Kruger was asked whether he accepted that the contract was cancelled.
He said (I paraphrase my notes): "1 do not think
so. We are
always willing to meet on site to find a solution." His counsel
also referred to "A48", supra, where
Kruger's attorney says
that he was not aware of any cancellation. Kruger was pressed by the
plaintiffs counsel referring to "A51"
where Day said that
his reference to the "now cancelled" contract in "A44"
should be regarded as cancellation.
Kruger answered (I paraphrase):
"If you say so, it must be true. You can catch me out on these
legal issues. We are always
prepared to meet and go forward ..."
I do not regard this as a concession that the contract was cancelled.
Quite the contrary.
In any event, a cancellation was not pleaded. I
have dealt with this issue, as well as the onus and what a claimant
relying on
a cancellation has to prove. Kruger pointed out that the
defendant had done almost 1700 contracts and this was the first time
they
got involved in a "legal battle".
[85j
Kruger insisted that a mock-up was prepared. It was not in the garage
but in that vicinity. He insisted that they had to wait
three to four
months for the plastering to be done at the point where the large
stacking door had to be installed. He insisted
that Day said on more
than one occasion that the internal frames were in order. He insisted
that he saw frames that had been damaged
by electrical cables. His
then site manager, Roodt, also pointed out such damage to him and
expressed concern in connection therewith.
One could clearly see the
damage at the bottom corner of the frame. Some of the frames were
twisted and they could not be closed
properly. It was put to him that
this was a fabrication, a statement which he emphatically denied,
saying that he saw it with his
own eyes and it was of concern to him.
I consider it to be inherently improbable that Kruger would have
fabricated this evidence.
T he same applies to his evidence, as I
already pointed out, that the defendant does not manufacture and
install frames in that
condition.
[86]
Kruger was cross-examined at some length about the Van Wyk meeting.
He said that AAAMSA inspectors go out daily to sites and
wilI give a
report to confirm whether or not the installation complies with
National Standards and Quality Guidelines. It was put
to Kruger that
his "entire evidence regarding the Van Wyk meeting was a
complete fabrication and untrue”. This Kruger,
understandably,
emphatically denied. In any event, his evidence is corroborated by
Van Wyk. It is also inherently improbable that
both of them would
have fabricated such evidence. He was confronted with the fact that
Van Wyk said that he only inspected two
or three windows. Kruger said
that Van Wyk only reported on those windows because they were the
only ones complained about by Day
but he looked at all the windows as
they inspected the site. He asked Day to point out the items that he
was unhappy with. This,
of course, is confirmed by Van Wyk. Kruger
pointed out that some damage was visible, but the workmanship was of
an acceptable standard.
It will be recalled that Kruger already
complained about the cable damage when writing to Day on 17 July 2008
("A32").
He sent his remedial team to the site after the
Van Wyk meeting but the team was told to leave by Day. Whatever
defects appeared
from the inspection with Van Wyk, could easily be
remedied on site. For example, some of the locks in the doors
were
of different makes and Day insisted that all locks must be from the
same manufacturer. As to the question of protection, Kruger
repeated,
in emphatic terms, his earlier evidence that the protective tape
cannot be left on the frames for months on end. The
only way to
protect the frames is to co-ordinate the work on site in such a way
that the finished areas are protected. Regular
co-ordination meetings
should be held and the proceedings at those meetings should be
minuted. Kruger denied that there were "three
failed attempts"
by his teams to remedy the defects. While his team installs new
frames that are delivered at the site, they,
at the same time, finish
off the already installed windows.
[87]
In re-examination, Kruger again stated that he was not aware that the
contract had been cancelled. He dealt with the efforts
to arrange for
a proper snagging list to be prepared and the refusal by Day to
co-operate in this regard.
[88]
Kruger struck me as a truthful and impressive witness. He clearly
knew what he was talking about. I have dealt with his impressive
CV,
which was not placed in dispute. It is obvious that he always acted
in a bona fide manner and had a genuine desire to bring
the contract
to a satisfactory conclusion. To me it was obvious that he was quite
capable of doing so, had he received the necessary
co-operation from
Day. He was prepared to call in the A A AMS A expert to inspect his
work and furnish a report. Day rejected this.
He was quite happy to
refer the matter to arbitration and made such a proposal through his
attorney. This was also rejected.
In
my opinion, the inherent probabilities favour the version of Kruger*
materially supported by the evidence of Van Wyk, on the
contentious
issues. My reasons for this conclusion appear from the analysis of
the evidence.
Conclusionary
remarks
[89]
In my view, and for the reasons mentioned, the plaintiff has failed
to prove its case against the defendant. The plaintiff
has failed to
discharge the onus of proving what was necessary to succeed with a
claim of this nature. T he requirements, as to
onus, were considered
with reference to the relevant passages in Amler's, supra.
[90]
l or the reasons mentioned when analysing the evidence, I find no
basis for preferring the version offered by the plaintiff,
such as it
is, to that of the defendant. The evidence given by Day was
unsatisfactory in material respects. The evidence of the
expert Rahme
was plagued by insurmountable disadvantages. Those I have listed and
discussed. The version of the defendant was satisfactory
and
supported by the inherent probabilities.
[91]
In the circumstances, the claim must fail.
[92]
I turn to the counter-claim. A lawful cancellation of the contract
was not pleaded, let alone proved. Indeed, a breach of contract
was
not specifically pleaded either,
neither
was it proved. The counter-claim represents the outstanding amount on
the contract namely R176 479,15. This outstanding
balance is not
disputed. Given my findings on the merits of the case, 1 am
consequently of the view that the defendant is entitled
to payment of
the outstanding contract balance subject to deduction of the salvage
value of the removed installation. I have also
come to the conclusion
that it would be equitable to deduct 10% from the amount claimed in
respect of retention monies because
the contract was never signed
off. In a sense, this is in line with the evidence of Kruger. I have
decided to allow this deduction,
despite my finding that the
defendant was quite prepared and capable of completing the contract
but prevented to do so by the conduct
of Day. I am mindful of the
following passage from Christie's The Law of Contract in South Africa
6th ed p493 which I was referred
to by defendant's counsel:
"Self-created
impossibility, that is impossibility resulting from the act of one of
the parties, does not discharge the contract,
but leaves the party
whose act created the impossibility liable for the consequences."
See
also the authorities there quoted.
[93]
As to the calculation of what appears to be an appropriate award in
respect of the counter-claim, I have already dealt with
what I
consider to be a reasonable computation of the salvage value. I did
this when dealing with the evidence of Rahme. The details
need not be
repeated. The amount comes to R108 916,00. As I mentioned, the
evidence of Rahme dealing with the salvage value was
not challenged
in cross-examination. I have referred to Small v Smith, supra. I have
decided to prefer the figure mentioned by
Rahme to that suggested by
Kruger in the circumstances.
[94]
Consequently, an appropriate tabulation of the figure to be awarded
in respect of
the
counter-claim, would appear to be the following:
Amount
of the counter-claim (outstanding contract
balance)
…..............................................................
R176
479,15
Minus
10% retention
................................................
R
17 647,91
TOTAL
….................................................................
R158
831,24
Less
salvage
….........................................................
R108
916,00
TOTAL
AWARD
........................................................
R 49 915,24 (R49 915.00)
[95]
The costs
The
costs should follow the result. I see no basis for deviating from
this general rule. The costs should also include the qualifying
and
reservation fees of the experts Van Wyk and Kruger.
I
turn briefly to additional arguments as to costs flowing from
previous interlocutory proceedings.
(i)
The proceedings of 9 September 201 1 (exhibit "K”)
[96]
This was an application by the defendant to compel the plaintiff to
comply with a rule 35(3) notice and a rule 21 request for
particulars
for trial. I was not referred to any opposing affidavit. The
correspondence attached to the founding affidavit would
appear to
support a conclusion that a proper case was made out. The application
was enrolled for 9 September 2011 and on the same
day, an order was
made ordering compliance with the rule 35(3) and rule 21 notices and
also ordering the plaintiff to afford the
defendant's representatives
the opportunity to inspect the premises. The costs were reserved. It
would seem to be appropriate to
order the plaintiff to pay these
costs.
(ii)
The proceedings of 26 April 2013 (exhibit "H”)
[97]
This appears to be an application to compel proper compliance with
the rules 35(3) and 21 applications dating back to 2011,
and referred
to in exhibit "K", supra. The main thrust of the
application seems to be an effort to force the plaintiff
to supply
particulars relating to the claim for alleged damages flowing from
interest, bank charges and holding costs which, as
I have pointed
out, was abandoned well before the trial.
[98]
I was not referred to any order that was made on 26 April 2013 or
thereafter with regard to this application. I see no sign
of such an
order mentioned on the court file or inside the court papers. This
issue of the alleged need for particulars relating
to the abandoned
claim was not raised during the trial before me. It is true that the
order of 9 September 2011, supra, resorting
under the proceedings in
exhibit "K." directed the plaintiff to furnish particulars
despite the abandonment of the aforesaid
damages claim. Nevertheless,
where this issue was not canvassed before me during the trial, and
played no role as far as the adjudication
of the dispute was
concerned, it seems to me that it would be reasonable to order each
party to pay its own costs flowing from
the proceedings referred to
as exhibit "H".
The
order
[99]
I make the following order:
1.
The claim is dismissed.
2.
In respect of the counter-claim, judgment is granted in favour of the
defendant in the amount of R49 915,00.
3.
The defendant is given leave, if so advised, to remove, at its own
expense, the salvage of its installation from the plaintiffs
premises
within thirty calendar days from the date of this order, or an
extended period which may be agreed upon, subject to proper
prior
arrangement. If the defendant fails to do so, this part of the order
will lapse.
4.
The plaintiff is ordered to pay the defendant's costs which will
include the following:
4.1
the qualifying and reservation fees of the experts Van Wyk and
Kruger; and
4.2
the costs flowing from the proceedings of 9 September 2011 (exhibit
MKM).
5.
In respect of the costs flowing from the proceedings of 26 April
2013. exhibit "H", each party is ordered to pay its
own
costs.
WRC
PRINSLOO
JUDGE
OF TI IE NORTH GAUTENG HIGH COURT
51106-200M
HEARD
ON: 6-17 MAY 2013 FOR THE PLAINTIFF: ADV RILEY INSTRUCTED BY: MICHAEL
KRAW1TX & CO FOR THE DEFENDANT: G LUBBE
INSTRUCTED
BY: E W SERFONTEIN & ASSOCIATES INC