About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Eastern Cape High Court, East London Local Court
SAFLII
>>
Databases
>>
South Africa: Eastern Cape High Court, East London Local Court
>>
2024
>>
[2024] ZAECELLC 14
|
|
Bluroca Trading CC v Amatola Water (EL601/2019) [2024] ZAECELLC 14 (21 April 2024)
IN THE HIGH COURT OF
SOUTH AFRICA
EAST LONDON CIRCUIT
LOCAL DIVISION
Case no: EL601/2019
In the matter between:
BLUROCA
TRADING CC
Plaintiff
(Registration Number :
2006/162347/23)
and
AMATOLA
WATER
Defendant
JUDGMENT
Zilwa AJ
Introduction
[1]
The
Plaintiff issued summons against the Defendant, claiming payment of
the total sum of R11 310 793.40
[1]
allegedly suffered as a result of an alleged breach of contract. The
parties agreed on the separation of issues in terms of rule
33(4) of
the Uniform rules. This Court is called upon to determine the issue
of liability only.
[2]
At
the commencement of the proceedings, I invited the parties to address
me on the issue of whether this Court had jurisdiction
to hear this
matter considering that the contract concluded stipulated that
“
dispute
resolution shall be through mediation only”.
Both
parties agreed that I should hear the matter as the clause is
susceptible to be declared to be contrary to public policy if
regard
is had to the case of
Nino
Bonino v De Lange
[2]
where
the then Appellate Division said the following:
“
If
the terms of an agreement are such as to deprive a party of his legal
rights generally, or to prevent him from seeking redress
at any time
in the Courts of Justice for any future injury or wrong committed
against him, there would be good ground for holding
that such an
undertaking is against public law of the land.”
[3]
In
appreciation of the agreement reached by both parties, our
jurisprudence and provisions of section 34 of the Constitution
[3]
,
I was persuaded to hear the matter.
[4]
The
first issue is the date of commencement of the contract which is
germane to the dispute between the parties. The second issue
is
whether the Defendant terminated the contract within the prescripts
of the law. The third issue is whether, if the Defendant
terminated
the contract lawfully, it is entitled to proven damages as pleaded in
the counterclaim. The fourth issue is whether,
if the Defendant has
terminated the contract unlawfully, it is liable for the Plaintiff’s
damages as pleaded in the particulars
of claim.
[5] The
Plaintiff was a successful tenderer in respect of a contract for the
reconstruction of Bulk Water
Supply Infrastructure: Libode Corridor,
Construction of 4.9km DN 300 GRP Megacom Gravity Main (SV 0 to SV
4900) under Bid No. AW2015/16/10.
[6] The
Defendant was the implementing agent for the OR Tambo District
Municipality and had released an invitation
for that tender in 2015
for the King Sabata Dalindyebo Local Municipality Presidential
Intervention Bulk Water Supply Infrastructure.
The Defendant was thus
regarded as the Employer for the purposes of the contract.
[7] The
General Conditions of Contract for Construction Work (Second Edition
– 2010) ‘
the GCC’
as published by the South
African Institute of Civil Engineering is the instrument that
regulates and prescribes the works as between
the Contractor and the
Employer and it formed part of Part 1 of the tender documents.
[8]
Gibb
(Pty) Ltd ‘
Gibb’
was
appointed as Engineer by the Defendant on the works. In terms of
Clause 3
[4]
of the GCC, Gibb is
the Employer’s agent and as such obtained its mandate from
Clause 3.2 of the GCC. Gibbs primary function
was to administer the
Contract as an agent of the Employer.
Date of
Commencement of the Contract
[9] I
must highlight from the onset that in terms of the Contract attached
to the pleadings as annexure BCL
1, it appears to have been concluded
on 10 August 2016. It is the Plaintiff’s case that any
contractual obligations between
the parties commenced when the
Contract became effective. On the other hand, the Defendant contends
that the commencement date
was 27 June 2016, and that the Plaintiff
was given possession of the site on 11 July 2016.
[10]
In
my endeavour to resolve the impasse between the parties I should be
guided by the principles laid down in
Napier
v Barkhuizen
[5]
where
the sentiments of Cameron JA were echoed by Ngcobo J in the
Constitutional Court in
Barkhuizen
v Napier
[6]
who had the following to propound:
“
the
Constitution requires us to employ its values to achieve a balance
that strikes down the unacceptable excesses of ‘freedom
of
contract’, while seeking to permit individuals the dignity and
autonomy of regulating their own lives. This is not to
envisage an
implausible contractual nirvana. It is to respect the complexity of
the value system the Constitution creates. It is
also to recognise
that intruding on an apparently voluntary concluded arrangements is a
step that judges should countenance with
care, particularly when it
requires them to impose their individual conceptions of fairness and
justice on parties individual arrangements.”
[11]
In
trying to prove the date of commencement of the contract, the
Plaintiff led the evidence of Mr Bless Martinson and Mr Richard
King.
On the other hand, the Defendant led the evidence of Mr Duncan Shaw
and Mr Usanda Kewana. Their evidence discussed the contents
of
various correspondence in a form of letters and emails. One of the
letters, being annexure AWB 2, written by Gibb to the Plaintiff
had
the following provisions:
“
In
the above-mentioned commencement procedures letter, we noted that the
Commencement Date for the administration of this Contract
would be
taken to be the date you sign and receive a copy of the Agreement
.
As the employer has not yet made your original tender document
available for signature, we propose taking your signed
acknowledgement
of the Employer’s Tender Acceptance Notice
letter as proof of there being a Contract in place and therefore
propose to proceed
with the Works in the meantime. We therefore
propose setting the official Commencement Date for this contract as
14 calendar days
prior to the date of this (letter being the 14 day
period in which you had to submit the abovementioned documents);
namely Monday
27 June
2016
.”
(underlined
for emphasis)
[12]
Let
me pause and highlight that, in my view, this matter can be decided
by relying solely on one of the basic principles of contract,
namely,
that the contract gets concluded when both parties append their
signatures to the contract document. This trite legal principle
was
canvassed with
Ms Brauns,
representing the Defendant, and she
correctly conceded that generally the contract gets concluded when
both parties append their
signatures to the contract document.
[13]
The
contract in question contains clauses that assist me in arriving at a
right decision on the issue of the commencement date of
the contract.
Clause C1.1 contains the following provisions:
“
B)
THE OFFERED CONTRACT PERIOD IS 40 WEEKS CALENDAR WEEKS.
This
offer may be accepted by the Employer by signing the Acceptance part
of this Form of Offer and Acceptance and returning one
copy of this
document to the tenderer before the end of the period of validity
stated in the Tender Data, whereupon the Tenderer
becomes the party
named as the Contractor in the Conditions of Contract identified in
the Contract Data.”
[14]
On
the Clause that deals with acceptance, the Contract provides as
follows:
“
ACCEPTANCE
(Page 2 of 5)
By signing this part
of this Form of Offer and Acceptance, the Employer identified below
accepts the Tenderer’s Offer. In
consideration of, the Employer
shall pay the Contractor the amount due in accordance with the
Conditions of Contract identified
in the Contract Data and for the
contract period offered.
Acceptance of the tenderer’s offer
shall form an Agreement between the Employer and the Tenderer upon
the terms and conditions
contained in this Agreement and in the
Contract that is the subject of this Agreement.
Deviations from and
amendments to the documents listed in the Tender Data and any addenda
thereto as listed in the Returnable Documents
as well as any changes
to the terms of the Offer agreed to by the Tenderer and the Employer
during this process of offer and Acceptance,
are contained in the
Schedule of Deviations attached to and forming part of this
Agreement. No amendments to or deviations from
said documents are
valid unless contained in the schedule which must be duly signed by
the authorized representative(s) of both
parties.
Notwithstanding
anything contained herein, this Agreement comes into effect on the
date of signature of this document
,
including the Schedule of Deviations (if any). Unless the Tenderer
(now Contractor) within five days of the date of such receipt
notifies the Employer in writing of any reason why he cannot accept
the contents of this Agreement,
this
Agreement shall constitute a binding contract between the parties
.”
(my underlining)
[15]
Clause
1.4 has the following provisions:
“
1.4
Non variation Clause
1.4.1
This
Contract is the entire contract between the parties regarding the
matters addressed in this Contract. No representations, terms,
conditions or warranties not contained in this Contract shall be
binding on the parties. No agreement or addendum varying, adding
to,
deleting or terminating this Contract including this clause shall be
effective unless reduced to writing and signed by both
parties.”
[16]
Having
regard to the Clauses I have extracted above, the clear intention of
the parties can be deduced from the terms of the Contract.
It is
common cause that the Contract stipulates the date of contract to be
10 August 2016 and I have not been provided with any
document or
addendum
signed by both parties varying any of the terms of
the Contract save for the written communication referred and relied
on by the
Defendant. This also cuts across the contention by the
Defendant’s counsel Plaintiff’s conduct ratified the
change
of the terms of the contract. This is incorrect, to say the
least, if regard is had to the non-variation clause.
[17]
In
each case it will be necessary to consider the terms of the offer to
determine the mode of acceptance required. Where, however,
the offer
takes the form of a written contract signed by the offeror, the
inference will more readily arise in the absence of any
indication to
the contrary that the mode of acceptance required is no more than the
offeree’s signature. This is particularly
so where provision is
made in the written contract for the offeree to specify the date on
which he or she signs the contract.
[18]
In
Reid
v Jeffrey's Bay Property Holdings (Pty) Ltd
[7]
the following was propounded:
“
However,
even when writing is not a formal requirement, written contracts are
an everyday occurrence in the commercial world. The
object of
reducing a contract to writing (whether voluntarily or required by
statute) is normally to achieve certainty and to facilitate
proof
(cf, eg,
Woods v Walters
1921 AD 303
,
Van Wyk v Rottcher’s Saw Mills (Pty) Ltd
1948 (1) SA 983
(A)
).
It is presumable for the same reason that the date and place of
signature is normally specified in written contracts. The signing
of
a contract is the usual manner in which parties indicate their
agreement to its terms and certainty as to the place and date
of the
conclusion of the contract can be equally as important for the
parties to the contract as certainty is to its content. Consequently
it is inherently improbably that any of the parties to such a
contract would intend that the time and place of the conclusion of
the contract would be determined not from the document itself but by
way of evidence
aliunde
.”
[19]
I
readily share and endorse the same views expressed by the learned
judge which accord with common sense and commercial practicalities.
Indeed, if the position were otherwise, the consequence would be to
defeat the very object of reducing the contract to writing.
Quite
apart from certainty as to the terms of the contract, that object in
a case like this one would be to avoid disputes as to
the date upon
which the offer was accepted.
[20]
On
the same issue, Flemming J had an occasion to consider the case of
Reid
(supra)
in
the case of
Hawkins
v Contract Design Centre (Cape Division) (Pty) Ltd
[8]
when
he said the following:
“
The
considerations mentioned in Reid v Jeffreys Bay Property Holdings
(Pty) Ltd
1976 (3) SA 134
(C) at 137D - G. The relevant reasoning is
as follows: Written contracts are frequently concluded; the purpose
is usually to promote
certainty and facility of proof; it is probably
for that reason that contracts have execution clauses; signature is
the usual manner
of intimating consent and may be of the same
importance as certainty about the contents of the contract; it is
resultantly inherently
improbable that the parties would intend that
the time and place of conclusion of the contract is not ascertainable
from the contract
itself. It seems to me that this reasoning would
apply to any written contract with an execution clause. If so, it is
difficult
to see why in any such a case the appropriate conclusion
would not be that communication of acceptance is not necessary.
However,
in the absence of proof that an execution clause was
inserted with the intention that that in itself should prove the date
and
place of conclusion of the contract, such an intention may not, I
believe, be presumed.”
[21]
It
is common cause that the Contract in question had the execution
clause which required the Contractor to commence executing the
Works
within 21 days from the Commencement Date. For that reason, the
reasoning as propounded by Flemming J finds perfect application
in
this case.
[22]
In
Mohabed’s
Leisure Holdings (Pty) Ltd v Southern Sun Hotel Interests (Pty)
Ltd
[9]
the Supreme Court of Appeal reaffirmed the principle of the privity
and sanctity of contracts and stated the following:
“
[23]
The
privity and sanctity of contract entails that contractual obligations
must be honoured when the parties have entered into the
contractual
agreement freely and voluntarily. The notion of the privity and
sanctity of contracts goes hand in hand with the freedom
to contract,
taking into considerations the requirements of a valid contract,
freedom to contract denotes that parties are free
to enter into
contracts and decide on the terms of the contract.”
[23]
The
Court continued and quoted with approval a passage in
Wells
v South African Alumenite Company
[10]
wherein the Court stated as follows:
“
If
there is one thing which, more than another, public policy requires,
it is that men of full age and competent understanding shall
have the
utmost liberty of contracting, and that their contracts, when entered
into freely and voluntarily, shall be held sacred
and enforced by the
courts of justice.”
[24]
Not
long ago the Constitutional Court in
Beadica
231 and Others v Trustees for the Time Being of Oregon Trust and
Others
[11]
also
had an opportunity to emphasize the principle of
pacta
sunt servanda
and stated the following:
“
[84]
Moreover,
contractual relations are the bedrock of economic activity, and our
economic development is dependent, to a large extent,
on the
willingness of parties to enter into contractual relationships. If
parties are confident that contracts that they enter
into will be
upheld, then they will be incentivised to contract with other parties
for their mutual gain. Without this confidence,
the very motivation
for social coordination is diminished. It is indeed crucial to
economic development that individuals should
be able to trust that
all contracting parties will be bound by obligations willingly
assumed.
[85]
The
fulfilment of many of the rights promises made by our Constitution
depends on sound and continued economic development of our
country.
Certainty in contractual relations fosters a fertile environment for
the advancement of constitutional rights. The protection
of the
sanctity of contracts is thus essential to the achievement of the
constitutional vision of our society. Indeed, our constitutional
project will be imperilled if courts denude the principle of
pacta
sunt servanda
.”
[25]
In
my view the problem all started in the disagreement about the date of
the Contract and that has perpetuated the confusion up
to the
determination of the date of completion. It is for this reason that,
in my view, as soon as the contract date has been determined,
a
considerable number of contentions should fall by the wayside.
[26]
The
evidence of Mr Richard King who is the Project Director and who is
also the main member of the Plaintiff revealed that the Plaintiff
has
been receiving contracts from various municipalities. He relied on
the date referred to in the contract being 10 August 2016.
His
evidence was that there could not have been any activities on site
without the signed contract as it is a prerequisite for
one to secure
guarantees and insurances. Again, as a professional, he is not
allowed to commence working because he can be held
personally liable
for anything that may happen. He referred to annexure ‘AWB 2’,
being a letter dated 11 July 2016
authored by GIBB which had the
following provision:
“
In
the above-mentioned commencement procedures letter, we noted that the
Commencement Date for the administration of this Contract
will be
taken to be the date you sign and receive a copy of the Agreement.
[27]
This
was echoing what was contained in annexure ‘AWB 1’, being
letter dated 28 April 2016 penned by GIBB which provided
as follows:
“
This
Commencement Date for this Contract shall be the date on which you
receive a signed copy of the Contract Agreement.”
[28]
It
is Mr Kings’s evidence that the contents extracted above were
in full appreciation of the fact that the contract date can
never be
another date other than the date of signature. The upshot of his
evidence was that there could not have been any expectation
that any
other date given in the letter prior to the date of signature could
be applicable. I am in full agreement with this disposition.
Was the contract
terminated within the prescripts of the law?
[29]
As
indicated above, the mistaken determination of the date on which the
Plaintiff should take occupation of the site and commence
work has a
ripple effect on the issue at hand. GIBB decided to give possession
of the site to the Plaintiff on 11 July 2016 and
this was before the
contract came into existence.
[30]
The
question that needs to be answered is whether GIBB had the authority
to make a unilateral determination of when the Plaintiff
should take
possession of the site before the parties had concluded a valid
agreement. To answer this question, it is necessary
to have regard to
the empowering instrument, being Clause 3 of the GCC. Proper reading
of this clause does not suggest any power
or authority given to the
Engineer in this regard. To the contrary, the Engineer’s
function is to administer the Contract
as agent of the Employer,
in
accordance with the provisions of the Contract.
Needless to
mention that no function in terms of the contract can be performed by
the Engineer before any contract has come to
existence. By parity of
reasoning, GIBB acted
ultra vires
in making a determination of
the commencement date of 11 July 2016. He equally acted beyond his
powers in suggesting that the Contract
can be backdated and be given
life that precedes the date on which the signatures were appended.
[31]
By
the same parity of reasoning, the assessment of progress by the
Engineer was ill-conceived since it was based on an incorrect
date of
commencement. Equally, the termination in question was a product of
an incorrect completion date being 28 April 2017.
[32]
The
Plaintiff’s incontrovertible evidence that he received a signed
Contract Document on 10 August 2016 nullifies the date
of completion
as stipulated by GIBB moreso that the letters written on the issue of
commencement date are in consonant with the
Plaintiff’s
version.
[33]
Ironically,
the termination was only triggered by the Plaintiff’s
insistence on getting payment for the re-establishment of
the site
notwithstanding the fact that the Engineer found that the Defendant
was in default of its obligations. The Defendant,
being in breach, is
the first one to invoke the cancellation clause. It is my view that
this is against public policy and it offends
the principle developed
in
Beadica
231 CC and Others v Trustees of the Oregon Trust and Others
[12]
where Theron J had the following to say in paragraph 87:
“…
There
is no basis for privileging pacta sunt servanda over other
constitutional rights and values. Where a number of constitutional
rights and values are implicated, a careful balancing exercise is
required to determine whether enforcement of the contractual
terms
would be contrary to public policy in the circumstances.”
[34]
It
is concerning that the Defendant, after having been made aware that
he was in breach – instead of rectifying the breach
– he
proceeded to cancel the Contract. Inasmuch as the principle of
pacta
sunt servanda
should be honored, the fact that it offends a
constitutional right, I should employ a balancing exercise. It is for
this reason
that the termination of the Contract by the Defendant was
unlawful.
[35]
Now
that I have concluded that the Defendant unlawfully terminated the
contract, it automatically follows that the counterclaim
cannot be
sustained. It also follows as a matter of course that the Plaintiff
should be entitled to the damages as it may be able
to prove.
[36]
It
is therefore reasonable to conclude that the delay in delivery of
material, wrongful instructions issued by the Engineer which
led to a
flawed assessment of the rate of progress and disestablishment of the
site all led to the Plaintiff being unable to perform
in accordance
with the works program.
Non-payment of
Certificate No. 11
[37]
I
do not find any legal basis for the Defendant’s refusal or
neglect to pay this certificate. It is common cause that the
Engineer
issued this payment certificate amounting to R1 483 411.02
and on 11 December 2018 the Defendant issued a dispute
notice
objecting to the approval of the certificate. No meeting was ever
held to reach amicable settlement as contemplated in Clause
10.3.2 of
the GCC and the Defendant proceeded to terminate the Contract without
any indication that the Engineer’s ruling
will be put in
abeyance.
[38]
Clause
of 10.3.3 of the GCC provides as follows:
“
In
respect of a ruling given by the Engineer, and although the parties
may have delivered a Dispute Notice, the ruling shall be
in full
force and carried into effect unless and until otherwise agreed by
both parties, or in terms of an adjudication decision,
an arbitration
award or court judgment.”
[39]
If
regard is had to the above provisions, it is incontrovertible that
there is no agreement between the parties not to carry the
ruling
into effect and there is no adjudication decision, arbitration award
or court judgment that suspended the Engineer’s
ruling. For
that reason and in appreciation of the GCC provisions, the Defendant
is liable to satisfy and make good of this certificate.
[40]
Both
parties allege and highlight breaches by both sides ranging from late
payment certificates and late delivery of the pipes.
These breaches
were conceded by the Engineer in his letter that dealt with CLAIM NO.
4 : RE – ESTABLISHMENT COSTS DUE TO
DELAY IN PAYMENT where the
following appears:
“
We
refer to our Engineer’s Ruling dated 20 April 2018 on your
Claim No. 4 (re-establishment costs due to delay in payment).
In
light of further representations on your part, we have reviewed your
claim from the point of view that the lengthy period of
non -
availability of pipes had consequential effect of cash strapping your
business to the extent that additional costs were incurred
when you
could not pay your creditors and you could not resume work until paid
your Claim No. 3.
ENGINEER’S
RULING IN TERMS OF CLAUSE 10.1.5
We hereby rule the
following for Claim No. 4:
·
The
direct costs associated with the non-availability of pipes (period 7
June 2017 up to 15 December 2017 inclusive), namely extension
of time
costs and standing time costs, are fully covered by our Engineer’s
Ruling on Claim No. 3 (and eventual payment on
our Ruling).
·
We
accept that, in addition to the direct costs (above), the lack of
being able to generate an income working on this Contract for
such a
long period waiting for pipes and payment had the unavoidable effect
of causing your Company to become cash strapped.
·
We
accept that, being thus cash strapped, you could neither pay your
creditors until payment for Claim No. 3 had been received,
nor
proceed with the Works.
·
We
accept that this had the direct consequence of not being able to pay
your creditors in time to prevent them from removing their
facilities
and equipment on 2 March 2018 (payment in respect of Claim No. 3 was
received on 25 March 2018).
·
We
accept that, having not being able to pay your creditors in time, you
thus incurred costs to re-establish.
·
We
accept that you could not resume meaningful activity on site from 10
January 2018 (the official end date of the builder’s
break)
because, apart from being cash-strapped as noted above, if you had
not kept your site locked and had continued to work,
your creditors
would have immediately removed their plant (you were hoping to avoid
this by receiving Claim 3 monies in time).
·
We
therefore accept that, as a consequence of the lengthy
non-availability of pipes:
o
You
incurred the reestablishment costs; and
o
You
could not resume work until you had been paid and had re-established
on site.
o
We
note that the removal of plant was carried out by the creditors and
at no cost to yourselves, therefore no de-establishment costs
are
due.
o
We
accept that the re-establishment costs, after such a long period of
forced inactivity, was equivalent of almost the full establishment
costs of the relevant BoQ items at the start of the Contract (see
Engineer’s assessed breakdown given as an annexure to this
letter). This amounts to
R687 513.43
(excluding escalation and Vat).”
[41]
Deducing
from the contents of the above extract it is abundantly clear that
there was an inordinate delay in the delivery of the
pipes and that
resulted in the delays in keeping up to speed with the project
albeit
that the time frames were based on an incorrect commencement date.
The Defendant’s contentions that the Plaintiff was to
blame for
the late delivery of the pipes is not in harmony with the
overwhelming evidence which is even confirmed by the Engineer’s
correspondence. The Engineer acknowledged that the Plaintiff wrote a
letter on 19 January 2018 informing him of delays in the delivery
of
pipes by Defendant. He further acknowledged that there was a trail of
emails revealing requests and orders for the pipes and
fittings.
[42]
Even
the Site Diary, which was signed by one Malaki on behalf of the
Contractor and co-signed by B. Ntshinga on behalf of GIBB,
bears the
following recordal:
“
Contractor
instructed to rather wait for fittings instead of skipping the
section and continue laying. It has been 36 days since
the Order was
placed for fittings.”
[43]
The
evidence led by the Plaintiff further revealed that after taking
possession, the site was established and Works commenced with
the
digging of farrows. When the pipes were delivered, there were no
bends to complete the laying of the pipes and that posed problem
and
it is for that reason that the Plaintiff was instructed to stop the
Works. During the waiting period for delivery of the bends,
the
farrows had to be filled up to avoid danger to animals and people.
The non-delivery of the pipes and other fittings caused
enormous
delays which had consequential standing time costs and ultimately led
to the disestablishment of the site. When the bends
were ultimately
delivered, the Plaintiff had to undo the work it had already done as
the bends could not be affixed to the already
laid pipes. I am
therefore satisfied that the Defendant, who had a duty to make the
pipes available – this being common cause
- delayed the project
and that had an adverse effect on the critical path.
[44]
One
of the Defendant’s contentions is that the Plaintiff failed to
issue dissatisfaction or dispute notices, as envisaged
in the GCC,
during the entire negotiation and commencement of works. The
Defendant further contends that some weight needs to be
attached to
this failure against the Plaintiff. I disagree. As I have indicated
earlier in this judgment, there is not even a need
to address further
peripheral issues as they have automatically fallen by the wayside
after the finding on the commencement date.
It is therefore my view
that the rest of the issues I have not discussed fall under the
peripheral which do not warrant any further
consideration.
Costs
[45]
Both
parties have contended that the costs should follow the event and I
also do not find any departure from the general rule.
[46]
In
the circumstances the following order shall issue:
1.
That
the Plaintiff’s claim against the Defendant succeeds.
2.
That
the Defendant is liable for the damages as claimed by the Plaintiff
in Claims 1, 2 and 3 insofar as the latter may be able
to quantify
them.
3.
That
the issue of quantum is postponed
sine
die
for later determination.
4.
That
the Defendant be and is hereby ordered to pay costs of suit.
H ZILWA
ACTING JUDGE OF THE
HIGH COURT
Appearances:
For Applicant:
Adv B Metu
Instructed by:
Chitha T Inc. Attorneys, Pretoria c/o MP Ncame Attorneys Inc.,
East
London
For Respondent:
Adv L Brauns
Instructed by:
Clark Laing Inc., East London
Dates Heard:
17 November 2023; 06 – 07 December 2023 and 25 January
2024
Date Reserved:
25 January 2024
Date Delivered:
21 April 2024
[1]
Comprising
of Claim 1 in the sum of R1 044 533.87 in respect of site
re-establishment and standing costs; Claim 2 in
the sum of
R7 266 259.52 in respect of repudiation and this amount
comprises of loss of profit in totaling R4 785 559.52
and
bank loans amounting to R2 480 700.00; and Claim 3 in the
sum of R3000 000.00 in respect of patrimonial loss, being
injury to
the Plaintiff’s reputation.
[2]
Nino
Bonino v De Lange 1906 TS 120
[3]
Act
108 of 1996
[4]
3.
ENGINEER
3.1
Functions of
the Engineer
3.1.1
the function of the Engineer is to administer the Contract as agent
of the Employer, in accordance
with the provisions of the Contract.
3.1.2
whenever the Engineer intends, in terms of the Contract, to exercise
any discretion or make or issue
any ruling, contract interpretation
or price determination, he shall first consult with the Contractor
and the Employer in an
attempt to reach agreement. Failing
agreement, the Engineer shall act impartially and make a decision in
accordance with the
Contract, taking into account all relevant facts
and circumstances.
3.1.3
In the event of the Engineer being required in terms of his
appointment by the Employer to obtain
the specific approval of the
Employer for the execution of any part of his functions or duties,
such requirement shall be set
out in the Contract Data.
3.1.4
The Employer may, by written notice to the Contractor and the
Engineer, authorized an agent to act
as his representative relating
to the responsibilities imposed by the Occupational Health and
Safety Act on the Employer. Such
an agent, if not the Engineer,
shall be responsible to the Engineer in terms of these Conditions of
Contract.
[5]
Napier
v Barkhuizen
2006 (4) SA 1
(SCA) at para 13
[6]
Barkhuizen
v Napier
[2007] ZACC 5
;
2007 (5) SA 323
(CC) at paras 7, 70 - 71
[7]
Reid
v Jeffrey's Bay Property Holdings (Pty) Ltd
1976 (3) SA 134
(C) at
137D - G
[8]
Hawkins
v Contract Design Centre (Cape Division) (Pty) Ltd
1983
(4) SA 296
(T) at 305 C - F
[9]
Mohabed’s
Leisure Holdings (Pty) Ltd v Southern Sun Hotel Interests (Pty) Ltd
(183/17)
[2017] ZASCA 176
(1 December 2017)
[10]
Wells
v South African Alumenite Company
1927 AD 69
at 73
[11]
Beadica
231 and Others v Trustees for the Time Being of Oregon Trust and
Others CCT 109/19
[2020] ZACC 13
[12]
Beadica
231 CC and Others v Trustees of the Oregon Trust and Others
[2020]
ZACC 13
;
2020 (5) SA 247
(CC);
2020 (9) BCLR 1098
(CC)