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[1993] ZASCA 75
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Group Five Building Ltd. v Minister of Community Development (449/91) [1993] ZASCA 75; 1993 (3) SA 629 (AD); [1993] 4 All SA 678 (AD) (28 May 1993)
CASE NO 449/91
IN THE SUPREME COURT OF SOUTH AFRICA APPELLATE
DIVISION
In the matter between:
GROUP FIVE BUILDING
LIMITED Appellant
and
MINISTER OF COMMUNITY
DEVELOPMENT Defendant
CORAM
: JOUBERT, E M GROSSKOPF, GOLDSTONE, NIENABER JJA et HARMS
AJA
DATE HEARD
: 13 MAY, 1993
DATE
DELIVERED
: 28 MAY, 1993
J U D G M E N T
NIENABER
JA:
2
The appellant, a building and engineering contractor, instituted six
separate claims against the South African government for payment
in terms of a
building contract and for damages due to its breach. The court a quo (Daniels J)
held that the unexpressed tacit or
implied terms of the contract on which the
appellant sought to rely for three of its six claims were irreconcilable with
its express
terms. The Court accordingly upheld the respondent's exceptions
against those claims. This is an appeal, brought with leave of the
court a quo,
against that decision. I shall refer to the appellant as "the plaintiff" and to
the respondent as "the defendant".
The contract, a comprehensive one consisting of a number of contiguous
documents, was concluded in 1983. The plaintiff undertook to
erect the district
headquarters for the South African police, a police
3
station and a mortuary at Nelspruit in accordance with certain drawings,
specifications, bills of quantity, conditions of contract
and general conditions
of tender, to the satisfaction of the director-general of the Department of
Community Development for a price
of R3 970 234,00 (including a contingency sum
and general sales tax) or for such other sum as became payable in terms of the
provisions
of the contract. The contract was thus not for a lump sum but was
based on a priced schedule of quantities. The ultimate contract
amount would
only be ascertainable once all the executed work had been finally measured and
valued at the prices and rates in the
schedule of quantities. The contract was
thus of a kind that has been described as a "rate and measurement contract"
(Alfred McAlpine
& Son (Pty) Ltd v Transvaal Provincial Administration
1974
(3) SA 506
(A) at 510A; Minister of Public Works v WJM Construction Co (Pty) Ltd
1983 (3) SA 58
(A) at 64C; Compagnie
4
Interafricaine de Travaux v South African Transport
Services
and Others
[1991] ZASCA 16
;
1991 (4) SA 217
(A) at 223B-C).
The site was handed over
to the plaintiff on 23 June 1983. The contractual completion date was 4 May 1985
but this date was extended,
in terms of the provisions of the contract, to 15
June 1985. In the event the work was only completed some six months later on 17
December 1985.
The plaintiff attributes this delay to the defendant
(or its employees or agents). But for their interventions, so it is alleged in
the pleadings, the work would have been completed on 14 December 1984, the date
which it programmed for completion, which was well
in advance of the extended
contractual completion date. Such interventions, by way of late variation orders
and instructions and
unauthorised suspension orders, constituted, so it is
alleged, breaches of the contract by the defendant or, if not, at the very
least
fell
5
outside the ambit of clause 17(ii) of the Conditions of Contract which is
the clause providing for extensions of time for completion.
Either eventuality
was governed, according to the plaintiff, by appropriate implied or tacit terms.
The relief claimed in claims
C, E and F (which were those against which the
exceptions were directed) was founded on the existence of those implied or tacit
terms.
Before examining the unexpressed terms on which the plaintiff
relied it will be convenient, for ease of later reference, to recite
the express
terms of the Conditions of Contract which are relevant to this
judgment.
The "Works" are defined in clause l(vi) to mean
"all the buildings, erections or
structures
(including any
omissions, substitutions,
alterations, or variations thereto) which are to be
erected, built or constructed in terms of this
Contract
..."
"Engineer" is defined in clause l(iv) as
the
"'Department of Community Development' acting through the officer deputed
generally or specially to control or supervise the
Works."
6
(According to paragraph 8.2 of the Particulars of Claim
the
functions of the engineer were carried out by a firm
of architects,
Messrs Derrick Law and Lawson, of
Nelspruit). The engineer's
functions to control or
supervise the Works are exercised, in terms of clause
l(x) by means of "Orders in Writing". In terms of clause
2(i) the contractor is obliged to "conform minutely to
the Drawings and Specifications and to any Order in
Writing which the Engineer may supply during the progress
of the Works." In terms of clause 3(1) the contractor
shall receive payment "only for the Works actually
executed and accepted." Clause 3(iii) then reads as
follows:
"Without invalidating the Contract, the Engineer shall have the right by
means of an Order in Writing, by varying the Drawings, Specification
and Bills
of Quantities, to increase or decrease the quantities of any item or items or to
omit any item or items or to insert any
additional item or items, provided the
total Contract amount be not thereby decreased or increased in value more than
20 per cent.
Such variations shall be measured and valued at the rates and
prices contained in the Schedule
of
7
Quantities and added to, or deducted from the Contract amount. Should there
be any dispute as to whether such Order in Writing constitutes
a Variation Order
in terms of this Contract, the decision of the Engineer shall be
final."
Clauses 3(iv), (v), (vi) and (vii) provide for
the
ordering of and payment for extra and additional work
and
Clause 4 provides for extras and variations as
daywork.
Clause 9 deals generally with suspension of work.
The
duration of the contract is governed by clause 17.
Clause 17(i) reads:
"The Contractor shall be allowed from the time the site is handed over to
him 14 days for the delivery and arrangement of his plant
and material, and at
the expiration of the said 14 days the said works shall be commenced and
proceeded with, with all due diligence
to the satisfaction of the Engineer, and
the whole works shall be completed within (24) twenty-four months from the date
of the letter
of acceptance of tender. The site shall be handed over to the
Contractor within 14 days after he has complied with the conditions
of tender
relating to security and the submission of priced schedules of quantities if
applicable."
Clause 17(ii) reads:
"If the Works shall be delayed by cessation of work by any workmen,
inclement weather, or by any omissions, additions, substitutions
or variations
of
8
the Works, or of any items of work, labour or material, or by any other
causes beyond the Contractor's control then the Contractor
shall have the right
within 21 days of any such cause of delay arising, to apply in writing to the
Director-General: Community Development
through the Engineer to extend the date
of completion mentioned in sub-section (i) of this clause, stating the cause of
delay and
period of extension applied for."
Clause
17(iii) reads:
"The Director-General: Community Development upon receipt of such written
application together with the report thereon of the Engineer
may by order in
writing extend such date of completion by a period to be determined by him, or
may refuse to extend such date of
completion, or may postpone giving a decision
upon such application until completion of the contract period set out in
sub-section
(i) of this clause; the date of completion will be extended only to
the extent approved by the Director-General: Community Development,
and in the
assessment of the liquidated damages provided for in this Contract, no allowance
shall be made to the Contractor for any
delay other than for the period of
extension (if any) approved of by the Director-General: Community
Development."
Clause 17(iv) reads:
"Should the Contractor fail to apply in writing for an extension within the
time set out above, or should the Director-General: Community
Development refuse
to grant any extension in writing, then the contract period provided by
sub-section (i) of this clause shall not
be exceeded nor the
Contractor
9
exonerated from liability to pay liquidated damages or from the specific
performance in every respect of the said Works, including
all omissions,
additions, substitutions and variations whatsoever, within the time specified in
sub-section (i) of this clause, notwithstanding
delays from any of the causes
mentioned above.
Clause 18 in so far as it is relevant
reads:
"Time shall be considered as the essence of the Contract. If, therefore, the
Contractor fails to commence the Works at the dates prescribed
or to proceed
with and complete the Works in compliance with the preceding clause and in the
manner therein stated, then the Director-General:
Community Development shall
have the right in his absolute discretion forthwith, and from time to time, to
adopt and exercise all
or any one or more of the following courses ...
(A) To direct the Contractor, in writing, on any day
named
therein to suspend and discontinue the
execution of the Works, and
to withdraw himself and
his workmen from the said site or sites
...
(B) To allow the Contractor or his Sureties to
proceed with the
Works and to deduct as and for
liquidated and agreed damages a sum
of R500,00 (Five
Hundred Rand) per day for each day on which
the
completion of the Works may be in arrear
under
Clause 17 of these conditions. Such sums may
be
deducted from any sums due or to become due
under
this or any other contract heretofore or
hereafter
existing between the Contractor or Sureties and
the
Government, or may be recovered by action in
any
competent Court of Law ..."
Finally,
clause 28 which deals with disputes provides:
10
"This Contract does not exclude the rights of either party to have recourse
to the Courts of Law of the Republic of South Africa in
any dispute, other than
is specially provided for herein."
The implied or tacit terms relied on by
the
plaintiff are to be found in paragraph 7 of
the
particulars of claim. They are pleaded as follows:
"7.1 In the event of the works being delayed beyond the specified completion
date for a reason other than one of the matters referred
to in Clause
17(ii)...(whether alone or in combination with one or more of such matters)
-
7.1.1
The
time and date for completion of the works stipulated in Clause 17(i) of annexure
"C1" would no longer
apply;
7.1.2
the Plaintiff
would not be required to apply for an extension of time as contemplated in
Clause 17(ii) in respect of such
delays;
7.1.3
the provisions
of Clause 18 of annexure "C1" would cease to
apply;
7.1.4
the Plaintiff
would be required to complete the contract within a reasonable time having
regard to all relevant
factors;
7.1.5
the Plaintiff
would be entitled to claim damages to the extent that any were occasioned to it
by a delay for which the Defendant was
responsible and which amounted to a
breach of contract.
7.2 The defendant was
not entitled to suspend the
11
works or any part thereof for any reason other than one. specified in the
contract viz. Sunday working or inclement weather or a cause
akin to the
last-mentioned reason.
7.3 The Defendant was not entitled to delay in issuing Orders in writing
where such delay might reasonably have the effect of preventing
the Plaintiff
from completing the works within the period stipulated under Clause 17(i) or
within the extended period under Clause
17(ii) or thereafter.
7.4 The Defendant was not entitled to withhold payments or to impose
penalties or to exact the liquidated damages provided by the
contract, in
respect of delays resulting from the suspensions or delays referred to in
paragraphs 7.2 and 7.3
supra
.
7.5 In the event of the completion of the works being delayed by reason of
variations of the works (not constituting a breach of contract
on the part of
the Defendant), the Plaintiff would be entitled to claim from the Defendant such
additional costs as it reasonably
incurred in consequence of the delay.
7.6 All variation orders and instructions would be given timeously in
relation to the actual progress of the works, or at an opportune
time, or in
such a manner as not to disrupt the progress or momentum or method or sequence
of construction of the programmed works
by the
Plaintiff."
Some of the implied or tacit terms pleaded,
pars.
7.1 and 7.4 in particular, purported to supersede
express
12
terms which would otherwise constitute impediments to the plaintiff's
case; others, such as par. 7.5, were perceived as causes of
action in
themselves, whilst the remainder, pars. 7.2, 7.3 and 7.6, formed the basis of
the breaches of contract on which the plaintiff
relied for common law relief.
(During argument any reliance on par 7.5 was abandoned, if not expressly then to
all intents and purposes.)
The plaintiff identified three categories of breach of contract: (i)
unauthorised suspension of the works (par. 17.1 of the particulars
of claim);
(ii) delayed issue of variation orders in circumstances in which the delay might
reasonably have been expected to prevent
the plaintiff from completing the works
by the extended completion date (par. 17.2.1); (iii) disruption of the works by
orders not
given timeously in relation to the progress of the works or given at
inopportune times or in such a manner as to disrupt the progress,
momentum,
13
method and sequence of the construction of the works (par.
17.3).
In its particulars of claim the plaintiff also relied, in
par. 18, upon acts of disruption which, while not constituting breaches
of
contract, "nevertheless fell outside the scope of clause 17(ii)", but in
argument this averment was not pursued and, following
suit, it need not be
pursued in this judgment.
Claim C, the first of the three claims to which exception was taken, is a
claim for additional payment based on a contract price adjustment
clause (clause
50 of the Bills of Quantity, which it is not necessary to quote.) The engineer
certified the sum due to the plaintiff
in terms of this clause by reference to
the extended contractual completion date (15 June 1985). The plaintiff's
complaint is that
the latter date no longer applied, due to the defendant's
aforementioned breaches of contract. The amount owing to it ought, therefore,
to
14
have been calculated, first by reference to the reasonable time for
completion which coincided, according to the plaintiff, with the
actual date of
completion (17 December 1985) and, second without regard to any deductions in
terms of clause 18 of the contract.
Claim C is thus based on the dual
proposition, first that the defendant committed the alleged breaches of contract
(based on the
implied or tacit terms formulated in pars. 7.2, 7.3 and 7.6) and,
second that by virtue of the operation of the other implied or
tacit terms
pleaded (par. 7.1 and 7.4, alternatively par. 7.5) the duty to complete the
works by the agreed completion date was superseded
by the duty to do so only
within a reasonable time.
Claims E and F, unlike claim C, are claims for the breach and not for the
implementation of the unexpressed terms of the contract.
The details of these
claims are not important for present purposes. What is important is
15
that the alleged losses, in both instances, were computed on the basis
that the plaintiff was only obliged to complete the works when
it in fact did
so, 52,5 weeks after its programmed date of completion and 6 months after the
contractual date of completion - as
if the contractual date for completion no
longer mattered.
Pivotal to all three claims was therefore the
proposition that the contractual completion date had ceased to be of application
and
that the contract instead was to have been completed within a reasonable
time. Counsel for the plaintiff, at the outset of his argument,
stated that if
this proposition could not be maintained the exceptions taken to claims C, E and
F were rightly upheld and the appeal
should fail.
According to counsel the proposition was drafted into the present
contract as an implied term in the sense of "a standardised one,
amounting to a
rule of law. . ." (per Corbett AJA in Alfred McAlpine & Son (Pty) Ltd
v
16
Transvaal Provincial Administration supra at 532G). The rule of law, so
it was submitted, is derived, from some English building cases
(Home v Guppy
(1838) 3 M & H 387
(150 ER 1195)
; Russell v Sa da Bandeira (1862) 13 C.B.
(N.S.) 149; Jones v St John's College
(1870) LR 6 Q.B. 115
; Dodd v Churton
[1897] 1 Q.B. 562
; Wells v Army & Navy Co-operative Society (1902) Hudson's
Building Contracts, 4th ed. 346; Trollope & Colls Ltd v North West
Metropolitan Regional Hospital Board
[1973] 1 W.L.R 601
(HL); Percy Bilton Ltd v
Greater London Council
[1982] 1 W.L.R 794
(HL)), which have been echoed in some
South African ones (Hansen and Schrader v Deare
(1883) 3 EDC 36
; Barker v
Townsend
(1903) 24 NLR 145
, and noticeably Kelly and Hingle's Trustees v Union
Government
1928 TPD 272).
The sense of the English cases seems to me to be this:
1. A contractor is bound to complete the work by
17
the date stipulated in the contract for its completion.
If he
fails to do so he will be liable, if so agreed, for
liquidated damages to the employer.
2. The employer will not, however, be entitled
to
liquidated damages if by his act or omission he
prevented
the contractor from completing the contract by the
agreed
date. As it was put by Vaughan Williams LJ in
Wells'
case supra at 354,
"[I]n the contract one finds the time limited within
which the builder is to do this work. That means,
not only that he is to do it within that time, but
it means also that he is to have that time within
which to do it."
Any conduct on the part of the
employer or his agent,
whether authorised (e.g. the issue of
variation or
suspension orders) or wrongful (e.g. the failure to
deliver the building site or plans or instructions by an
agreed date) exonerates the contractor from completing
the contract by the contractual completion date. Time
then becomes, as it is sometimes stated, at large. The
18
work must then be completed within a reasonable time.
3.
The
qualification of proposition 1 by proposition 2 is itself subject to the further
qualification that the latter must yield to the
express terms of the contract.
One such express term would be the authority granted to a contractor to apply
for an extension of
time within which to complete the work, e.g. where variation
orders are issued or extra work is ordered which delay its
completion.
4.
But where the
extension clause lists specific grounds on which the contractor may ask for an
extension of time and adds the words
"or other causes beyond the contractor's
control" the latter phrase must be interpreted narrowly and eiusdem generis with
the preceding
categories. Wrongful conduct of the employer which caused delay
would in particular be excluded, at any rate when, in terms of other
provisions
in the contract, the decision about extra time rests with
the
19
employer himself and is final (for otherwise, if not excluded, the
employer becomes arbiter of, and gains an advantage from, his own
- wrong).
Proposition 3 accordingly does not apply and proposition 2 does: consequently
the employer would not be entitled to enforce
a claim for liquidated
damages.
The plaintiff in this case is not of course facing a claim
for liquidated damages. What it seeks to do is to transpose a principle
of
English law (that time becomes at large) which is designed to exempt a
contractor from penalties, to a different situation, in
order to escape clause
17(i) which is an embarrassment to its claims C, E and F. It was not contended
by counsel that the ordinary
principles of the law of contract do not apply to
building contracts in general and to this one in particular. That being so I
entertain
some reservations about certain aspects of proposition 2, at least as
far as South African law is concerned. When
20
parties agree that a contract is to be implemented by a fixed date,
conduct by the employer which is authorised by the contract (e.g.
issuing
variation orders, ordering extra work) surely cannot alter or nullify the agreed
date for completion. It is for that very
reason that building contracts nowadays
almost invariably contain express provisions making allowance for extensions of
time. When,
on the other hand, the conduct of the employer is unlawful (and
constitutes a breach of contract) the position may be different,
for it stands
to reason that a debtor is excused from performing an obligation on time if his
creditor wrongfully prevented him from
doing so (cf Van der Merwe, Van Huyssteen
and Others, Contract, 271). So, for example, it has been held that a building
owner cannot
enforce a penalty clause if the delay complained of was caused by
his or his agent's default (cf Hansen and Schrader v Deare supra
at 45; Cullinan
v The Bettelheim Building Co. (1890) 3
21
SAR 235; Hendricks and Soeker v Atkins
(1903) 20 SC 310).
The contractor,
in addition, will retain his common law remedies, especially his claim for
damages, unless this is expressly excluded.
But the case does not turn on proposition 2. The real issue is whether
proposition 4 is sound and overrides proposition 3.
Proposition 4 is largely based on Wells' case supra. The issue in Wells'
case was whether the employer was entitled to deduct liquidated
damages from the
contract sum where delays in the completion of the work were, at least partly,
due to the fault of the employer
and the engineer respectively. It was held by
the trial court and confirmed on appeal that the employer's default excused the
contractor's
delay and that the contractor could not be faulted for failing to
apply for an extension of time within which to complete the contract.
The
extension clause in question, so it was held, had to
22
be interpreted narrowly, excluding defaults by the
employer, since the employer, in terms of the contract,
was,
but ought not to be, the sole arbiter on the issue.
Similar reasoning prompted the court in the
Kelly
and Mingle's Trustees' case supra, to hold, on
the
authority of Wells' case, that the phrase "other causes
beyond the contractor's control" in the extension clause
in that contract did not include delays resulting from
alterations or additions which the building owner was
empowered to order in terms of clause 3; and,
consequently, that the penalty clause for delays on the
part of the contractor ceased to apply. Clause 17 of
that contract read as follows (at 277):
"[T]he said works shall be commenced and proceeded with, with all due
diligence to the satisfaction of the engineer, and the whole
shall be completed
within twenty-four calendar months from the date of handing over the site. If
the works should be delayed by reason
of special inclement weather, combinations
or strikes of workmen, or other causes beyond the contractor's control, the
contractor
must afford proof to the satisfaction of the engineer,
whose decision as to. whether extra time shall be
allowed or not is final."
23
Referring to Wells' case Feetham J said, at 284:
"[I]f that decision is correct it seems to me to follow that in clause 17 of
this contract, where there is no mention of 'alterations
and additions' in the
list of specified causes of delay, the words 'other causes beyond the
contractor's control' should not be construed
as including the ordering of
alterations and additions.
But, apart from the interpretation of these actual words adopted in Wells'
case (supra), I have to take into account the rules which
are recognised in, or
may be deduced from, that case and the earlier decisions as governing the
application of penalty clauses in
building contracts; namely, (1) that where a
building owner by his own act prevents performance he is not, apart from special
stipulation,
entitled to take advantage of his own wrong; (2) that where the
terms of the contract are ambiguous, and one construction would lead
to an
unreasonable result the Court will be unwilling to adopt that construction: [cf.
as to this point the decision in Martin v.
Wilson
(1911, T.P.D. 737)]
; (3) that
an unreasonable burden is cast upon the contractor where the work to be done in
a limited time subject to a penalty clause
may be increased at the will of the
building owner; and (4) that, where the terms of the contract are such as in
effect to make the
building owner judge in his own cause on questions of delay,
such provisions are to receive a restrictive
interpretation.
If the words 'other causes
beyond the contractors'
control' in clause 17 are considered in the
light of
these rules, I think it is clear that they
should
not be construed as covering the ordering
of
alterations or additions by the building owner
under
24
clause 3."
Those remarks, related to the present
case, are partly distinguishable and partly unconvincing. I say so for the
following reasons:
1.
The wording in
clause 17(ii) of the present contract is wider than that of the corresponding
clause in the Kelly and Hingle's Trustees'
contract: "by
any
other causes
beyond the contractor's control" as opposed to."other causes beyond the
contractor's
control".
2.
Clause 17(ii) of
the present contract specifically refers to "omissions, additions, substitutions
or variations of the Works"; the
Kelly and Hingle's Trustees' contract does
not.
3.
In both Wells' case
supra and the Kelly and Hingle's Trustees' case supra the clause in question was
regarded as being ambiguous.
Clause 17(ii) of the present contract in my opinion
is not. The three particularised instances of delay are juxtaposed
with
25
general descriptive words which, as a matter of language, would also
cover instances of delay caused by wrongful conduct for which
the employer was
responsible. Even if the general wording is to be interpreted eiusdem generis
(as to which see Grobbelaar v Van
de Vyver
1954 (1) SA 248
(A) at 254D-255B), it
would lead to the identical result since the only common denominator of the
specific categories mentioned,
as far as I can see, is the very fact that the
matters mentioned are all beyond the contractor's control.
4. The court in the Kelly and Hingle's Trustees' case supra adopted the
argument raised in the Wells case supra that the words should
be narrowly
construed because otherwise the employer would become a judge in his own cause.
In both Wells' and the Kelly and Hingle's
Trustees' cases the decision of the
employer on whether to grant an extension was final. Here, in the present
contract, it is not.
In terms of clause 28 the
26
contractor can refer any dispute to a court of law.
5. According to the Kelly and Hingle's
Trustees'
case supra the employer ought not to be
allowed to take advantage "of his own wrong". The "wrong" was the ordering of
extras. But
the ordering of extras was expressly permitted in terms of the
contract and could therefore not have been a "wrong". This is the
very point
made earlier in this judgment: where a contract permits, and therefore
contemplates, certain conduct by the employer or
the engineer, such conduct
cannot be exploited by the contractor, in the absence of an extension clause, to
displace an express term
elsewhere in the contract that the work is to be
completed within the agreed term. This criticism also holds true for certain
remarks
in Barker v Townsend supra.
6. Clause 17(ii) is inserted for the benefit of
both parties,
as counsel for the plaintiff readily
conceded. But on the approach
contended for by him the
27
plaintiff would have been deprived of the opportunity of invoking the
clause in case of a breach of contract by the employer even
though it might have
suited the plaintiff's convenience to do so. So, too, a contractor could, on the
plaintiff's approach, be denied
the benefit of the clause if the engineer, as it
is alleged he had done, issued an order suspending a portion of the work in
terms
of clause 2(i) where such a suspension order did not involve a variation
order in terms of clause 3(iii) or extra or additional work
in terms of clause
3(iv). The proposition is only to be stated to be refuted.
7.
A contractor who
does not wish to cancel the contract, and who applies for an extension of time
on the grounds of the employer's breach
of contract would not of course be
precluded from resorting to his other common law remedies, more especially his
claim for
damages.
8.
Finally, and in
my view conclusively, the approach adopted in Wells' and the Kelly and
Hingle's
28
Trustees' cases supra would lead to a result which, if applied to this
contract, would clash with clause 17(i); it would mean that
by virtue of a
supposed implied term clause 17(i) is, for this purpose, simply edited out of
the contract. It is axiomatic that an
ex lege implied term, like an ex consensu
tacit one, can never have that effect (cf. Alfred McAlpine & Son (Pty) Ltd v
Transvaal
Provincial Administration supra at 531E).
In my opinion the words "or by any other causes beyond the Contractor's
control" in clause 17(ii) are wide enough to embrace wrongful
conduct by the
employer or his agent. Such conduct would entitle the contractor to apply for an
extension of time and, if the application
is refused, to have the matter tested
in a court of law. In addition the' contractor can recover any losses he may
have suffered
as a result of the owner's wrongful conduct by means of an action
for damages. The express terms of the contract accordingly provide
for the
very
29
eventuality which the plaintiff alleges occurred in this instance. The
plaintiff chose not to apply for an extension of time on those
grounds. It now
seeks to justify that omission by contending that it could not have done so
since the defendant committed various
breaches of contract which prevented the
plaintiff from completing the contract by the agreed date. According to the
plaintiff the
completion date in clause 17(i) no longer applied and could be
disregarded; it no longer applied because of an implied term to that
effect. The
plaintiff's entire case is thus founded on the premise that the express
completion date was overtaken by a contrary implied
term. An implied term
cannot, however, co-exist with a contradictory express one. The exceptions were
accordingly rightly upheld,
regardless of whether the defendant committed the
breaches of contract now complained of. It is accordingly not essential to
determine
whether the contract, in addition, contained
30
the implied or tacit terms pleaded in pars. 7.2, 7.3 and 7.6 of the
particulars of claim. One may assume in the plaintiff's favour
that it did. But
even at best for the plaintiff on that point, it loses on the other.
In my opinion the court a quo was therefore right in upholding the
exceptions taken to claims C, E and F. The appeal is dismissed
with costs,
including the costs of
P M Nienaber JA
JOUBERT JA )
E M GROSSKOPF JA) CONCUR
GOLDSTONE JA )
HARMS AJA )