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[2009] ZAGPPHC 181
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Heinzelmann Dill v Els Enslin Boukontrakteurs CC (A 966/2006) [2009] ZAGPPHC 181 (31 March 2009)
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
NORTH DIVISION PRETORIA
CASE NUMBER: A 966/2006
DATE:30/03/2009
In
the matter between:
HEINZELMANN
DILL
.......................................................................
Appellant
And
ELS
ENSLIN BOUKONTRAKTEURS
CC
....................................
Respondent
JUDGMENT
INTRODUCTION
1.
The respondent engaged the professional services of the appellant
through an oral agreement entered into at Nelspruit during
November
or December 2000.
2.
The appellant is a partnership of quantity surveyors and the
respondent a construction business.
3.
The terms of the oral agreement form the subject of one of the
disputed issues in an action for damages instituted by the respondent
against the appellant.
4.
It is appellant's case that the original oral agreement was amended,
orally or by implication, to exclude the appellant’s
liability
for damages arising from a failure to perform its mandate
professionally and expertly in regard to the civil portion
of the
bill of quantities of the second tender.
5.
It is common cause that the appellant was originally engaged to price
the bills of quantities for three tenders for construction
work to be
executed for the Mpumalanga Provincial Government at or in connection
with the Barberton Correctional Institution. This
agreement was
entered into orally and the only point the court a quo had to decide
when the matter came before it, as agreed by
the parties in terms of
Rule 32 (4), was the question whether this agreement was amended as
alleged by the appellant.
THE
PARTIES
6.
The appellant is Heinzelmann Dill, a partnership of quantity
surveyors, practicing as such at Suite 804, The Pnnacle, 1 Parkin
Street, Nelspruit, Mpumalanga. At all relevant times hereto, the
partnership was represented by Mr Saunders, a duly registered
and
admitted quantity surveyor and a partner of the appellant.
7.
The respondent is Els Enslin Boukontrakteur CC, a close corporation
engaged upon the building trade, with registered address
at 20 Kruger
Street, Constantia Building, White River, Mpumalanga. At all relevant
times the respondent was represented by Mr MacDonald,
one of its two
members.
THE
CONTRACT
8.
The parties entered into an oral agreement in terms of which the
appellant agreed to price the bills of quantities forming part
of
tender documentation of three tenders the respondent intended to
submit to the Mpumalanga Provincial Government for certain
repair and
maintenance work at the Barberton Correctional Facility.
9.
The appellant agreed to obtain the necessary bills from the
consulting engineers advising the building owner, the Provincial
Government, and to price the bills in time for the three tenders to
be submitted before the deadlines determined by the latter.
The
deadline for the submission of the second tender was 6 December 2000.
10.
The pricing of the bills of quantities was to be undertaken in an
expert and professional fashion.
THE
ISSUE
11.
The appellant alleges that the agreement was amended by an oral
communication to the effect that the appellant would not accept
liability for any potential damages that might arise for the
respondent as a result of the fact that the civil work in the bill
of
quantities for the second tender, by far the largest of the three
tenders, was not priced by Mr Saunders, but was completed
by the
latter by copying the estimated prices that the engineers had earlier
prepared for the building owner onto the tender documents.
The civil
work constituted about 82% of the second tender’s work.
12.
This amendment, Mr Saunders alleges, was agreed upon during the
afternoon of the 5th December 2000 at the partnership offices
when Mr
MacDonald collected the tender documents that had to be submitted in
Pretoria the next morning.
13.
Mr Saunders testified during the proceedings before the court a quo
that he informed Mr MacDonald, as the latter was about to
leave, that
the appellant would not accept liability for any damages that might
be suffered as a result of the way in which the
tender documents for
the second tender had been prepared.
14.
His evidence was to the effect that MacDonald did not answer when
this communication was made to him - and that quiescence therefore
became acquiescence.
15.
MacDonald vigorously disputed this averment in the witness stand. He
denied that such a discussion ever occurred.
16.
The court a quo decided in the respondent’s favour.
17.
The appellant appeals with leave of the Supreme Court of Appeal
against this finding.
THE
ONUS
18.
It was common cause that the onus to persuade the court on a balance
of probability that the oral agreement was amended rests
on the
appellant.
19.
If the court cannot come to the conclusion that this onus has been
discharged, the decision must go in the respondent’s
favour.
THE
COMMON CAUSE FACTS
20.
The following facts are common cause or have not been disputed:
a)
The identity of the parties;
b)
The nature of the parties’ respective professions;
c)
The respondent was, prior to the submission of the relevant tenders,
a comparatively small builder that had never performed any
building
contract of which the value exceeded R 3 million;
d)
The value of the second contract was a multiple of that sum;
e)
The respondent’s members, Mr MacDonald and his father in law,
Mr Els, were very much aware of the fact that their business
would
take a major step into a bigger league if the second tender were to
be awarded to them;
f)
The respondent had never done any civil work prior to submitting the
second tender and would engage subcontractors to perform
the civil
work if the tender was indeed awarded to it;
g)
The respondent had previously engaged the services of another partner
of the appellant partnership, namely Mr Dill, in respect
of an
earlier contract;
h)
In order to price the bills properly, a quantity surveyor would have
to obtain information from the suppliers of the items contained
in
the bills, of the cost at which they could be obtained and to
calculate the profit margin that had to be built into the tender
for
the respondent;
i)
The original contract contained an implied term that the appellant
would perform its function expertly and professionally in
all
respects;
j)
Mr Saunders struggled to obtain prices from the suppliers - as he
testified - but by accident came into possession of the estimated
prices the engineers had determined for the building owner;
k)
He decided to use these estimates, which were no more than a
guideline, to complete the bill of quantities for the second tender:
l)
He did not advise the engineers in advance of his decision to do so
and did not obtain their advance consent to such action;
m) This
conduct on Saunders’ part was unprofessional and lacking in
candour;
n)
There was no guarantee that the estimated prices would not, if
accepted, cause grave damages to the respondent’s profit
margin; o) Mr Saunders did not inform Mr MacDonald of the fact that
his conduct would be regarded as unprofessional and unbecoming
by the
engineers and the quantity surveyors’ profession; p) The
engineers were highly upset and very critical of the bills
of
quantity when they realized that the estimated prices had been copied
by Mr Saunders, and were of the view that the respondent
incurred a
real risk of suffering significant losses when the tender was
accepted by the Provincial Government.
THE
EVIDENCE
21.
The parties called oniy the two persons who were involved in the
conclusion of the admitted agreement.
22.
Mr Saunders gave the evidence that has been outlined in broad detail
in the introduction.
23.
He could not be described as a good witness. For obvious reasons, he
was very uncomfortable in the witness stand, having to
admit that his
actions were per se unprofessional and smacking of deceit toward the
engineers and the building owner.
24.
Against that background, he had a very hard row to hoe in the attempt
to persuade the court that the respondent close corporation,
at that
stage still at the threshold of its entry into the company of bigger
civil building contractors, would knowingly and without
any guarantee
or indemnity against future losses that might threaten its very
existence, make itself a party to conduct that would,
at the very
least, be frowned upon by the engineers acting as agents for the
biggest building owner they could hope to contract
with at that stage
or in the future.
25.
The trial court disbelieved Mr Saunders. It cannot be faulted for
having done so. Mr Saunders was often evasive, uncertain and
altogether cut a most unhappy figure. He found it difficult to
explain why the suppliers would not provide him with the prices
he
required.
26.
The alleged amendment of the original contract was unusual in itself
and would have been a red light to the respondent if it
had been
spelt out to Mr MacDonald.
27.
To establish a tacit acceptance of a clause excluding the
professional advisor’s liability under these circumstances
would have required incontrovertible evidence. Mr Saunders's evidence
falls very significantly short of this standard.
28.
The trial court believed Mr MacDonald. It cannot be faulted for doing
so - he was a straightforward, albeit somewhat loquatious,
witness
who was resolute in his denial of the very existence of the alleged
amendment.
29.
Once the trial court’s assessment of the evidence cannot be
faulted, the appellant cannot succeed in discharging the onus
resting
upon it.
THE
PROBABILITIES
30.
Quite apart from the aforegoing, the probabilities that can be
distilled from the facts recorded above are overwhelmingly against
the appellant.
31.
It is fundamentally improbable that the respondent should have been
willing to agree to the purported amendment and thereby
expose itself
with open eyes to the risk of its own annihilation - to say nothing
of the danger of alienating the province’s
biggest source of
building and construction work.
32.The
appeal must therefore fail.
The
following order is made:
1.
The appeal is dismissed with costs, including the costs of senior
counsel.
Signed
at Pretoria on this 30th day of March 2009
E
Bertelsmann
Judge
of the High Court
I
agree.
W
R C Prinsloo
Judge
of the High Court
I
agree
A
A Louw
Judge
of the High Court