About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2013
>>
[2013] ZAFSHC 118
|
|
M and K Accounting and Tax Consultants v Centlec (Pty) Ltd (2197/2011) [2013] ZAFSHC 118 (27 June 2013)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Case number:
2197/2011
In the matter between:-
M AND K ACCOUNTING
AND TAX CONSULTANTS
..................
Applicant
and
CENTLEC (PTY) LTD
................................................................
Respondent
CORAM
:
SNELLENBURG, AJ
JUDGMENT:
SNELLENBURG, AJ
HEARD
: 14
JUNE 2013
DELIVERED:
27 JUNE 2013
[1] The applicant applied
by way of motion that the respondent be ordered to make payment to it
in the amount of R29 517 957.62
(together with interest
a
tempore morae
and
cost) for services rendered. The motion was issued on 9 June 2011.
1
[2] The matter was
referred for hearing of oral evidence, as will be dealt with later in
this judgment, and enrolled for this purpose
on the 11
th
,
12
th
, 14
th
, 18
th
, 19
th
and 21
st
June 2013. I will refer to the dates as trial
days for sake of convenience.
[3] During the morning of
the first trial day, before the matter could proceed, the respondent
filed a substantial application seeking,
inter alia
, that the
matter be postponed
sine die
. Other relief is also sought with
which I shall deal later.
[4] The representatives
approached me in chambers and requested that the matter be dealt with
as suggested by the applicant, namely
that the matter stand down to
Friday, 14 June 2013 for arguments in the application for
postponement. The applicant would and indeed
did file an answering
affidavit on the second trial day. The respondent filed its reply on
Thursday, 13
June 2013.
[5] After hearing
arguments in the respondent’s application for postponement,
I made an order and
indicated that I will furnish the parties with the reasons for my
order.
2
I accordingly furnish the
reasons.
[6] Some background is
necessary to understand the context of the application for
postponement and the respective parties’
stances.
[7] The matter first
served before Molemela, J on 28 July 2011. At that stage the
respondent’s answering affidavit had still
not been filed. The
order regulated the furnishing of documents by the applicant, in
terms of Uniform rule 35, within five days
from receipt of a list
from the respondent wherein the documents sought had to be specified.
Other matters were also recorded,
which are to my mind not relevant
at this stage and which I do not specifically set out herein. The
wasted cost was reserved.
[8] The matter thereafter
served before Ebrahim, J on 22 September 2011. By this time an
answering affidavit had been filed shortly
before the hearing of the
matter. After hearing argument an order was made, which provided,
inter alia
, that –
8.1. The matter is
referred for hearing of oral evidence on the question of whether the
respondent is indebted to the applicant
in the amount of
R29 517 957.62 together with interest thereon (
a tempore
morae
) and/or whether the applicant is entitled to any payment in
any amount at all.
8.2. The evidence will be
that of any witness who the parties intend to call subject thereto
that a party is only entitled to call
a witness if a statement is
served within the prescribed periods before the hearing of evidence.
In the statement the evidence
to be given in chief by such party must
be set out. This is however subject to the court’s prerogative
to allow a party to
be called despite the fact that no such statement
was served in respect of his evidence.
8.3. The parties make
discovery, on oath, of all documents relating to the issue referred
to oral evidence, which are or have at
any time been in the
possession or under control of such party, which discovery must be
done in terms of the provisions of Uniform
Rule 35 regarding
inspection and production of documents so discovered.
8.4. The incidence of
cost stands over to be adjudicated by the court hearing oral
evidence.
[9] On 26 April 2012 the
matter served before Lekale, J. An order was granted by agreement
between the parties. It provided,
inter alia
–
“
1.
The parties confirm that it is common cause that they concluded the
Consultancy Agreement.
2. The parties confirm
that the Consultancy Agreement was terminated by the Settlement
Agreement.
3. The Applicant
subsequently rendered an invoice for payment to the Respondent in
respect of the services rendered.
4. There exists a dispute
between the parties on a limited issue of the amount due and payable,
if any,..
5. The matter is referred
for hearing of oral evidence on the following limited issue;
5.1. To determine the
amount due to the Applicant by the Respondent for the services
rendered in terms of the provisions of paragraph
3 of the settlement
agreement read with paragraph 9.1 of the Consultancy agreement, if
any.
5.2. It is hereby
recorded that in computing the amount due to the Applicant, if any,
the Respondent is entitled to deduct any amount(s)
that it may
lawfully claim for the Applicant or lawfully deduct from any amount
due to the Applicant, although the Applicant does
not concede in
advance that any amount is liable to be deducted.
6. It is hereby recorded
that the Respondent is of the view that despite the discovery of
certain documents in terms of Respondent’s
Rule 35 Notice, such
discovery is insufficient.
7. The Applicant, on the
other hand, contends that it has discovered all documents it could.
8. In order to resolve
the dispute as regards discovery, the parties agree that the
Respondent is entitled to request the discovery
of the following
documents from the Applicant, within fifteen days of this order:
8.1. Copies of the
initial and revised VAT 201 returns submitted to SARS by the
Applicant relevant to the Applicant’s claim,
as well as all
source documents used by the Applicant in compiling the said VAT 201
returns.
8.2. All records
generated by the Applicant in the compilation of the
above
mentioned
VAT returns.
8.3. The particulars of
all computer software packages, if any, that were used by the
Applicant in compiling the abovementioned
VAT returns.
8.4. The details
regarding any journal entries that were either made or suggested in
the records of the Respondent and Mangaung
Local Municipalities
suggested by the Applicant.
8.5 .............
8.6 .............
8.7. All submissions made
by the Applicant to SARS in relation to the services rendered by the
Applicant to the Respondent in terms
of the provisions of the
Consultancy or Settlement Agreement.
8.8. All correspondence
exchanged between SARS and the Applicant in relation to the services
rendered by the Applicant to the Respondent
in terms of the
provisions of the Consultancy or Settlement Agreement.
8.9. All correspondence
exchanged between Applicant and Respondent in relation to services
rendered by the Applicant to Respondent
in terms of the provisions of
the Consultancy or Settlement Agreement.
8.10. All working papers
generated by Applicant in compilation of the abovementioned VAT
returns.
8.11. All records of
tests performed by Applicant to confirm the accuracy of the VAT
system as used.
9. ..........
10. The Respondent’s
auditors or experts, if any, must, within one hundred days of receipt
of the documents or responses in
respect of the request approach the
Applicant with their report concerning their audit or findings in
relation to the Applicant’s
claim against the Respondent to the
Applicant, which report must, amongst others, state their findings
regarding the amount due
and payable to the Applicant, if any, and a
detailed explanation of how that amount has been arrived at.
11. The parties must,
within fifteen days of receipt of the report referred to in paragraph
10 above, convene and attend a meeting
with the parties’
auditors or experts in order to determine:
11.1. Aspects pertaining
to the compilation of the Applicant’s claim which are not in
dispute;
11.2. Aspects pertaining
to the compilation of the Applicant’s claim which are in
dispute;
11.3. Amounts, if any,
which the parties and/or their auditors or experts are
ad idem
about their relevance to the Applicant’s claim.
12. Costs, including the
cost of the 24
th
and 25
th
April 2012 stand
over.
13. The Rules of Court
pertaining to expert witnesses will apply.”
[I have intentionally
only quoted certain portions of the order. I have also intentionally
left out the headings that are contained
in the order.]
[10] There were further
interlocutory proceedings before the matter ultimately served before
me which I do not deem relevant to
the adjudication of the matter.
[11] Mr. Van Rhyn
(assisted by Mr Edeling), on behalf of the respondent, and Mr. Ike
Motloung, on behalf of the applicant, addressed
the history in
detail. Various cost orders stand over for adjudication. Those
matters are best left to be adjudicated upon by the
court hearing
oral evidence in this matter after the dispute has been properly
ventilated. See
Sublime Technologies (Pty) Ltd v Jonker and
Another
2010 (2) SA 522
(SCA) par [4] at 525B. I am equally
mindful not to prejudge any of those matters in these proceedings.
The merits of the present
application do not call for the
determination of those issues.
[12] On 8 May 2013, the
respondent availed its forensic report to the applicant.
[13] The meeting
envisaged in terms of paragraph 11 of the court order was held on 15
May 2013. At conclusion the parties agreed
to a follow-up meeting.
This was agreed to take place on 29 May 2013. The nature of this
further meeting is also in dispute between
the parties, but nothing
turns around this as the parties did ultimately record their
respective positions in the ‘pre-trial’
minute which was
duly signed on behalf of the parties by their respective attorneys.
[14] Suffice it to state
that the parties are not
ad idem
regarding whether the report
was delivered in terms of Lekale, J’s order. To this end the
parties recorded their respective
stances in a ‘pre-trial’
minute, dated 10 June 2013-
“
The
Applicant records that it was prejudiced by the late filing of the
report by PWC in terms of the Court order dated 26 April
2012. As a
result of the late filing, there was no time to, should the Applicant
have wished to do so, supplement and/or amend
their application or do
any other thing in terms of the Rules.
The Respondent records
that it was prejudiced in that the Applicant failed to provide all
the necessary documentation in terms of
the Court order dated 26
April 2013 (
sic 2012
). As a result, it could not finalise the
report timeously.”
The applicant, although
it recorded prejudice during the pre-trail meeting, elected not to
approach court for any relief. The respondent
contends that the
report was delivered in terms of the court order. I make no finding
in this regard.
[15] The applicant did
not avail itself to any relief in the form of seeking a postponement.
It strenuously opposed the respondent’s
application for
postponement and repeatedly recorded that it was ready to proceed and
that the matter should proceed.
[16] The prejudice
recorded by the respondent does feature to some extent in the order
it ultimately sought in the application for
postponement, but it does
not form the foundation of the application. If that was the case
there would have been a lot of merit
in the argument that the
application for postponement should have been made as soon as the
respondent became aware of the reason
for the postponement. The same
principles would obviously apply to the applicant.
[17] In terms of an
agreement between the parties they exchanged court bundles [core
bundles] on Friday, 7 June 2013.
[18] The respondent’s
attorney required that the applicants bundle be indexed with the
result that an indexed bundle was only
supplied the following Monday,
the day preceding the first court day scheduled for the hearing this
matter.
[19] Included in the
applicant’s bundle as annexure “N” is an invoice,
dated 16 May 2013. It is common cause between
the parties that the
invoice is a revision of the initial invoice, dated 14 April 2011,
rendered by the applicant and which, until
the date of production of
annexure “N”,
formed
the foundation of the applicant’s claim against the
respondent.
3
[20] The respondent’s
application is premised on the following facts:
The amount claimed by
the applicant in the motion, supported by the evidence in the
founding affidavit, is R29,517,957.62.
4
That is also the amount
requested to be audited;
According to annexure
“N” the amount
now
claimed by the applicant
for services rendered is R57,004,966.24 of which the amounts paid
(R18,340,388.89) must be subtracted.
Mr Holtzhausen, the
respondent’s attorney of record contacted the applicant’s
local attorney, Me Pienaar and enquired
whether the amount in
annexure “N” was substituting the amount claimed in
annexure “L” to the founding
affidavit, in other words,
whether the applicant now intended to claim the amount evidenced by
annexure “N”.
Me Pienaar confirmed
that the applicant would indeed claim the amount in annexure “N”
of which must be subtracted
the amount already paid by the
respondent.
The respondent’s
auditors’ have previously encountered enormous difficulty to
obtain documents relevant to the months
for which the applicant
claimed in annexure “L” and does not have, nor did they
require,
the
documentation regarding to the amounts now claimed in annexure “N”.
The respondent’s
auditors will need to consider the new [additional months’]
claims by the applicant. This will result
in the calculation and
revision of figures taking into account the additional months for
which the applicant claims. It will
involve further investigation of
documents and consultations in order for the respondent to be
properly prepared to put its case
before the court.
[21] The applicant
opposes the application on the following basis:
It admits that it
intends to pursue the claim as evidenced by annexure “N”,
but argues that whether it will be successful
with the claim is not
a matter this court needs concern itself with at this stage. It also
argues that annexure “N”
is merely a document forming
part of the trial bundle which has not been entered into evidence.
Accordingly, so the argument
develops, annexure “N” will
only become relevant once it is referred to or used during the
proceedings. At that stage,
and only then, may the respondent
object. This application is therefore, according to the applicant,
premature.
Annexure “N”
does not contain a new claim.
Only
the figures are affected as result of an agreement reached during
the pre-trail meeting with regards to the meaning of savings,
and in
respect of the same months.
The respondent received
all the documentation for the months claimed for, and it can
therefore not be heard to complain of any
prejudice, at least not to
the extent that the trial needs to be postponed.
The applicant also
contends that it does not claim for months for which documentation
has not been submitted. It is argued that
if the report is
considered, it will be evident that the months which were included
in annexure “N”, were indeed
also considered, or should
have been considered for the respondent to bring out its report. A
new revised report will not be
necessary.
It lastly argues that
the respondent is simply employing delaying tactics to frustrate its
claim.
To
this end the applicant relies on the history of the matter.
[22] In light of these
facts the application for postponement stands to be determined.
[23] The principles
relating to applications for postponement are trite. Every
application stands to be decided in light of the
specific facts and
circumstances relevant to that application. The general principles
applicable to applications for postponement
were succinctly
summarised in
Myburgh Transport v Botha t/a S A Truck Bodies
1991 (3) SA 310
(NmS). But the general principles need to be
qualified. A litigant is not necessarily 'responsible' for the case
not proceeding
merely because he or she applies for a postponement.
In certain circumstances a litigant could be forced to apply for a
postponement
as a result of the conduct of an opponent.
Sublime
Technologies (Pty) Ltd v Jonker and Another
2010 (2) SA 522
(SCA) par [3] at 524H - 525A.
[24] The facts relevant
and pertinent to this matter show that the respondent will be
prejudiced in the conduct of its case if the
postponement is not
granted. The facts also show that this situation was brought about by
the applicant’s conduct.
[25] As stated, the
applicant applied to court on motion for payment of the amount of
R47,858,346.51 of which R18,340,388.89 is
subtracted, therefore
R29,517,957.62 for services rendered to the respondent. In motion
proceedings the affidavits serve a dual
purpose; it constitutes both
the pleading as well as the evidence in support thereof. See
Transnet
Ltd v Rubenstein
2006 (1) SA 591
(SCA) par [28] at 600;
Absa
Bank Ltd v Kernsig 17 (Pty) Ltd
2011 (4) SA 492
(SCA) par
[23] at 499.
[26]
In casu
and
until the very least the 7
th
of June 2013, the applicants
claim was premised on the services rendered as set out in its
founding affidavit. To this end the
founding affidavit also served as
the ‘statement of the evidence to be given in chief by such
party’ on behalf of the
applicant as per Ebrahim J’s
order. The summaries of expert witnesses that the applicant intends
to call does not take the
matter further. The notice of motion still
provides for judgment in this amount and the amount is supported by
annexure “L”
to the founding affidavit.
[27] On the 7 June 2013
annexure “N” was included in the pre-trial bundle. It is
described in the index as “MNK
Revised Tax Invoice”. It
is dated 16 May 2013, the same date as annexures “REP1”
and “REP2” which
are appended to the replying affidavit
in these proceedings. Annexures “REP 1” and “REP 2”
were documents
supplied to the applicant containing variable options
regarding calculations varying from R24 million to R33 million. These
documents
were supplied by way of electronic communication (email) 2
days prior to the follow-up meeting. It does not in any manner
resemble
annexure “N”. It did not include claims for the
years 2006, 2007 or 2008. With regards to these documents, the
applicant
recorded that it was still considering whether it wanted to
amend its claim, but that it would amount to either the one or other
of these amounts. It did not amend to this effect.
[28] What does appear is
that annexure “N” was not produced prior to its inclusion
in the trial bundle. It was not made
available prior to or during the
follow-up meeting on 29 May 2013. Save for including it in the
bundle, the respondent’s
attention was not drawn to the
existence of the document. This is common cause.
[29] During the meeting
the applicant indicated that it would do certain calculations, but it
explicitly disavowed any intention
to amend or not. It indicated that
it would consider whether it would amend. It obviously did so at its
own peril. The aspect of
an amendment was specifically raised during
the meeting and the respondent pointed out that a further affidavit
would probably
be necessary or at least an amendment of the notice of
motion. The respondent enquired whether the applicant would be ready
for
trial or whether its case would be ripe in light of the repeated
reference to the lateness of the PWC report. The applicant was
adamant that it would proceed. It did not say anything about annexure
“N” and its intention to pursue a claim on a
revised
invoice or, for that matter, for at least R9 million in excess of the
amount as confirmed to be owing in the motion.
[30] The respondent did
not jump to conclusions at the mere production of annexure “N”.
It sought clarification from
the applicant as to whether it was
correct in inferring that the new invoice substituted the previous
invoice i.e. that the applicant
now claimed the amount in annexure
“N”. It meant an increase in the amount claimed of R9
million. When this was confirmed
it consulted its experts and sought
instructions which culminated in the present application.
[31] There can be no
dispute that the compilation of annexure “N” differs
vastly from the invoice which has to date
been preferred and attested
to under oath by the applicant. Not only has certain months been
included for which were not claimed
previously, but some of the
amounts claimed has also substantially changed.
[32] It is not clear why
said invoice was not brought to the respondent’s attention
pertinently, more so if its date bears
any significance.
[33] The importance of
timeous discovery and or production of documents likewise do not need
debate. See
BST Kombuise (Edms) Bpk v Abrams
1978 (4)
SA 182
(T).
[34] I am satisfied that
the respondent is justified in its application for postponement.
There is no merit in the contention that
this application is merely
delaying tactics. The respondent has been confronted with an
increased claim on an invoice which has
been confirmed under oath in
these proceedings, will form the basis of the applicant’s
evidence, but which, at least in part
regarding the claims for months
not previously claimed, has not formed the subject of the applicant’s
evidence in the motion
to date. The applicant intends to canvass the
evidence and then move for an order that the notice of motion be
amended. The applicant
can present its case as it deems fit, but the
document has come to the respondent’s notice; it affects its
preparation for
the trial and it obviously needs time to consider the
amended invoice, the months now included in the claim and the
documents pertaining
thereto; to consult with its experts who have
already compiled a forensic report regarding the existing claim
[annexure “L”]
and to consider whether any other
documents must be called for and so forth. The fact that the
amendment stems from aspects that
appeared from the meeting between
the parties, if for a moment the dispute regarding such agreement
relating to savings be left
aside, does not to my mind assist the
applicant.
[35] The respondent was
entitled to prepare the case it had to meet based on the ‘pleadings’
and ‘evidence in
affidavits’ already disclosed to it. It
did so and cannot be prejudiced by having to proceed to hearing of
evidence on aspects
included in the claim of which it received
notice, at the very best for applicant, two court days prior to the
first trial day.
The respondent cannot be held responsible for the
applicant’s decision to revise and escalate its claim, nor for
the manner
in which the applicant decided to go about its case. To
allow the matter to proceed in these circumstances, bearing in mind
the
order granted by Ebrahim, J regarding the qualification of the
right to present evidence if the evidence in chief is set out in
a
statement, it would be tantamount to the court sanctioning trial by
ambush. The respondent would, at the very least, have to
conduct
cross examination of the applicant’s witnesses. To do so it
says it must be afforded an opportunity to have its experts
consider
the months added to the claim. This is not an unreasonable request in
light of the circumstances of this matter and has
been brought about
solely by the applicant’s late inclusion of claims for months
that never formed part of its claim before.
The interests of justice
dictate that the matter must be postponed.
[36] The applicant argues
that the respondent has all the documents it may require regarding
the months included in the new invoice.
I was referred to the index
of documents as well as the PWC report in support of this contention.
Neither the index, nor report,
however confirms the same. The PWC
report also clearly qualifies that the report is restricted to the
months claimed for in the
Invoice (annexure “L”). There
existed a dispute beforehand regarding whether all the documents have
in fact been supplied.
That dispute however is not the reason for the
application for postponement, or at least not the primary ground. Had
it been, as
already stated, the applicant may have had merit with its
objection to the application only having been issued on the morning
of
the first trial day.
[37] In order to
facilitate the proceedings, bearing in mind the parties continued
dispute regarding the supply and receipt of documents
and in order to
alleviate any possible disputes and uncertainty, I fashioned the
order to regulate the supply of a schedule by
the respondent to the
applicant detailing the specific documents it requires in light of
the amended invoice. The applicant is
ordered to supply the documents
requested, even if it had previously supplied it. This was in light
of the accommodating undertaking
on behalf of the applicant by its
representative, which is commendable. Should any disputes arise, the
parties are of course entitled
to exhaust their remedies.
[38] The court order will
also protect the applicant’s rights. Provision is made that the
respondent delivers the revised
report of PWC within two months from
date of receipt of the documents to be supplied by the applicant. The
transcription of the
meeting, envisaged by paragraph 11 of Lekale
J,’s order, shows that the previous meeting did not yield the
required results.
It is in both parties interest that the meeting
should take place after report of PWC has been delivered, and that
the matters
provided for in paragraph 5 of the court order must be
dealt with adequately. The parties were granted leave to approach the
registrar
to allocate preferential court dates if such is available.
[39] The parties were
ad
idem
that should the application for postponement be dismissed,
then it also follows that the wasted cost of the 11
th
,
12
th
and 14
th
June 2013 should be borne by the
respondent. The same situation was initially argued to be applicable
if the application should
succeed, but Mr Moutloung later recorded
that he was labouring under the impression that it related to the
costs to be decided
should costs be reserved. In light of the
consequences of a cost order I allowed Mr Moutloung to address the
matter of cost further.
[40] I am satisfied that
the applicant is liable for the wasted cost as result of the
postponement. The parties agreed on the manner
to ventilate the
application and as result the first three trial days were taken up by
preparing and answering to the application.
The arguments in the
application lasted the whole of the third trial day. Applicant’s
counsel was reserved, as was applicant’s
representative for the
days that have been wasted.
[41] This is not a matter
where another court will be in a better position to judge liability
for wasted cost. All the facts pertinent
to that question have been
adequately addressed, as it should have been, in the interlocutory
application. The application was,
to my mind, necessitated by the
applicant’s conduct. The applicant’s conduct was the
cause for the matter not being
able to continue and as such is
responsible to pay the respondent’s costs wasted as result
thereof. Had it informed the respondent
during the first meeting or
thereafter of its intention, the wasted costs would have been limited
to a vast extent.
[42] In light of the
afore-mentioned I am satisfied that the application needs to be
postpones
sine die
, as was ordered with the ancillary relief
referred to. The applicant should pay the respondent’s wasted
costs, occasioned
by the postponement, which costs include costs of
the 11
th
, 12
th
and 14
th
June 2013 as
well as the cost occasioned by the employment of 2 counsel.
[43] In the result I made
the following order:
The application is
postponed
sine die
.
The respondent is
ordered, within five days of this order to deliver to the applicant
a schedule containing a full description
of documents required as
result of recalculation of the amount claimed in annexure “N”
in the applicant’s court
bundle.
The applicant must
supply the documents requested by the respondent, referred to in
paragraph 2 above, within five days, whether
it has previously been
supplied, or not.
The respondent must
supply its PWC report, with any revisions, within two months from
receipt of the documents referred to in
paragraph 3.
The parties must, within
fifteen days of receipt of the report referred to in paragraph 4,
convene and attend a meeting with the
parties’ auditors or
experts in order to determine:
Aspects pertaining to
the compilation of the applicant’s claim which are not in
dispute.
Aspects pertaining to
the compilation of the applicant’s claim which are in
dispute.
Amounts, if any, which
the parties and/or their auditors or experts are
ad idem
about bear relevance to the applicant’s claim.
Parties are granted
leave to approach the Court for preference trial dates.
The applicant is ordered
to pay the wasted costs, as result of the postponement, including
costs of 11, 12 and 14 June 2013, including
costs occasioned by 2
counsel.
____________________
N. SNELLENBURG, AJ
On behalf of the
applicant: Mr Ike Moutloung On instruction of: Peyper Sesele
Attorneys BLOEMFONTEIN
On behalf of the
respondent: Adv AJR van Rhyn SC
Assisted by Adv JW
Edeling On instruction of:
Eugene Attorneys
BLOEMFONTEIN
NS/sp
1
At
date hereof the said amount is still the amount provided for in the
notice of motion. As will dealt with below, it is the applicant’s
intention to lead evidence and claim the amount of R38,664,577.35.
2
I
am indebted to the thorough arguments presented in the matter. Due
to the ambit of the matter, the arguments only concluded
at 15h25 on
Friday, 14 June 2013. The next trial date allocated for the matter
was Tuesday, 18 June 2012. In light if the order
I intended to and
did indeed make, and in order to avoid further wasted costs by
having the parties prepare for the possible
continuance
(commencement) of the matter and to return to court on the next
trial day simply to get an order that the matter
is postponed with
the reasons therefore, I indicated that I would make the order
immediately and the furnish my reasons as I
herewith do.
3
The
invoice is appended to the founding affidavit as annexure “L”.
4
The
amount claimed for as per annexure “L” to the founding
affidavit was R47 858 346.51 of which payments
in the
amount of R18 340 388.89 is subtracted leaving the balance
due and owing R29 517 957.62. Annexure
“N”
shows the amount due, before subtracting the amounts paid, as
R57 004 966.24. If the amounts paid are
subtracted, the
balance of R38,664,577.35 remains.